Feuding Ex-Partners Are Chided for Hindering Class-Action Settlements
"Although objectors and class counsel make a show of contesting the merits of the settlement, the real dispute is over the fees," Appellate Division Judges Jane Grall, Ellen Koblitz and Allison Accurso said in Monday's ruling.
Nagel was not the objectors' attorney of record, but there was no dispute that he had prompted the objection, the judges said. They also noted that one of the Kirsch suits was filed and certified as a class action when Mazie and Nagel were still partners, and thus the class consists of Nagel's former clients.
The appeals court found that Vichness was within his discretion in adopting the blended rate but that the 25 percent multiplier contradicted the Supreme Court's holding, in Walker v. Guiffre, 209 N.J. 124 (2012), that contingency enhancements are only available in fee-shifting cases.
The judges affirmed the Kirsch settlement on the merits.
Mazie Slater partner Eric Katz plans to petition the state Supreme Court on the fee-shifting issue, saying fee enhancements are supposed to reward risk-taking. He notes his firm litigated the case for seven years without pay.
The appeals court seemed to blame Mazie and Nagel equally, but Mazie says he has objected to only one of Nagel's settlements, DeVito v. Aetna, while Nagel has objected to three of his: Dewey v. Volkswagen, Jungels v. Delta Dental of New Jersey and Kirsch.
But Nagel says Mazie Slater set the combative mood by having one of its lawyers attend a hearing and criticize the terms of settlement of one of Nagel Rice's cases, Drazin v. Horizon Blue Cross Blue Shield of New Jersey, a class action over alleged improper denial of coverage for eating disorders. "This was all started by Mazie and his firm, who came to court without a client," he says.
The attorney for the objectors in Kirsch, Barry D. Epstein of Rochelle Park, calls the appeals court ruling "clearly a victory" for his clients.
The lawyer for Horizon, Maxine Neuhauser of Epstein, Becker & Green in Newark, declines to comment.