The lawyers who secured a $45 million settlement for Arkansas Marlboro Lights smokers worked more than 15,000 hours — time they valued at $10.2 million — and spent $2.2 million of their own money to pursue the litigation over 13 years.
Now they’re asking the presiding judge, Circuit Judge Tim Fox of Little Rock, to decide how much they should be paid for their efforts, money that would come out of the settlement fund.
The lawyers don’t ask for a specific amount in their payment petition filed last month, but they state that there is court precedent in Arkansas that would allow Fox to award them anywhere from the $12.4 million they say they’ve invested in pursuing the litigation to as much as $30 million, which would be based on the value the judge places on their representation.
The lawyers will update the judge on the status of the claims process and take up the question of how much they should be paid at a Jan. 17 hearing.
The attorneys, led by Little Rock lawyer Tom Thrash, say the class-action lawsuit not only won compensation for Arkansas smokers who may have turned to the Lights brand in the hopes of getting a healthier product but also helped bring about the nationwide demise of the lights class of cigarettes, which were banned by federal regulators in 2010.
“After over 13 years of hotly contested litigation, Class Counsel achieved a result for Arkansas consumers that is truly extraordinary, succeeding where lawyers in 18 other jurisdictions had failed,” the attorneys wrote in a 29-page petition to the court.
“Class counsel are entitled to collect a reasonable fee and obtain reimbursement of their legitimate litigation expenses from the fund created due to their willingness to devote years of their lives to the zealous prosecution of the case.”
The lawyers also want the judge to devote a portion of the payout to reward the two lead plaintiffs in the suit and dedicate some proceeds to Arkansas health agencies and anti-tobacco activists who supported the lawsuit.
The settlement is meant to reimburse anyone who bought the Marlboro Lights brand and its Ultra-Lights companion brand in Arkansas over 38 years dating back to 1971, when the Lights brand was introduced.
Depending on the time of purchase, successful applicants will receive 10 cents to 25 cents per pack purchased.
The total number of claims has not been revealed, but the attorneys have said it’s going to top 15,000, although not every applicant will qualify and fraudulent entries have been discovered.
The cutoff date for applying for reimbursement was Dec. 1.
The $45 million settlement was reached in July during court-ordered mediation between the sides shortly before the start of a trial that was expected to last up to six weeks.
The lawsuit, f iled in April 2003, accused cigarette-maker Philip Morris and parent company Altria Group of deceptively marketing the Lights brands as safer than regular cigarettes when they really were not.
The tobacco company denied wrongdoing and had successfully fended off 18 similar lawsuits nationwide.
The company’s only trial loss, which is now under appeal, was a Massachusetts case in which the company was ordered to pay $15 million, which works out to about $25 per plaintiff. Plaintiffs in that case had asked for $600 million.
The plaintiffs in the Arkansas lawsuit were represented by 13 lawyers from eight law firms. Six were outof-state firms from Texas, Tennessee, Michigan, Florida, Mississippi and Illinois.
Aside from Thrash and his co-counsel Marcus Bozeman, the other Arkansas attorneys are Henry Bates and Randy Pulliam of Little Rock’s Carney Williams Bates Pulliam & Bowman firm.
In deciding how much they should be paid, the lawyers are asking the judge to consider awarding them for more than just their time and expenses.
They ask that the judge not limit the value of the settlement to the obvious $45 million but consider the lawsuit’s broader impact on public health and regulation, which they say raises its worth to $100 million.
With testimony from Dr. Gary Wheeler, the Arkansas Department of Health’s chief medical officer, the attorneys say the litigation has contributed to ongoing education of the public about light cigarettes and the dangers of continued smoking in general.
Wheeler also credited the lawsuit with helping push regulators to bar tobacco companies from advertising cigarettes as light or promising lower tar or nicotine, the attorneys state.
Stanford University history professor Robert Proctor, an expert witness for the plaintiffs on the history of cancer and smoking, also said publicity from the lawsuit educated Arkansas residents about light cigarettes.
“Placing particular emphasis on the 11 times the
Arkansas Democrat-Gazette
has reported on this case — including four appearances on the newspaper’s front page — Dr. Proctor also suggests this action has ‘contributed to the removal of Light cigarettes from the market.’ All of this causes Dr. Proctor to join with Dr. Wheeler in stating that the lawsuit has resulted in benefits to the class well beyond the $45 million monetary amount,” the lawyers wrote.
Jeffrey Harris, an economist who examined the Arkansas tobacco market for the plaintiffs, has found that sales of light cigarettes dropped by $54.9 million in the seven years after the filing of the lawsuit.
In court filings, Thrash states that his firm contributed 7,472 hours of work at $650 to $800 per hour for a total of $5.2 million, plus $24,681 in expenses.
The Carney Williams f irm reported $31 3, 237 worth of hours (about 690 hours at $125 to $690 per hour) with another $27,523 in expenses.
To assess compensation for the attorneys, the judge should consider the risks they took representing the smokers, the work they had to pass up to pursue the litigation, and the complexity and depth of the case, their petition argues.
A chief consideration should be that the attorneys had to gamble with their own money that they would ultimately prevail, they wrote.
The attorneys “accepted the challenge of this litigation knowing that they could easily prosecute this case for decades, expend thousands of attorney hours and million of dollars in expenses and then lose,” their petition states.
They argue that “it is eminently justifiable to award class counsel a reasonable fee based on the percentage of the overall benefit to the class.”
To represent the Arkansas consumers, the attorneys had to spend years fighting the tobacco company in federal court all the way to the U.S. Supreme Court, which took four years.
Briefly revived in 2007, the case was delayed again in 2008 while the sides awaited the results of a federal appeal that also went to the high court.
It was 2010 before the state litigation could resume moving forward, but it was diverted back to federal court about a month later on yet another issue, a bid by Philip Morris to consolidate all of the similar lawsuits nationwide into one case, which would be heard in Maine.
The proceedings moved forward until the state judge certified the lawsuit as a class action in November 2013, leading to an appeal of the ruling to the Arkansas Supreme Court by the tobacco manufacturer.
The appeal, the final one, took about 16 months before the state high court sided with the plaintiffs in February 2015, allowing the lawsuit to move forward without further diversions.
The attorneys are also seeking special compensation for the contributions of the two named plaintiffs, Wayne Miner of Franklin County and James Easley of Miller County.
Citing the men’s active participation in the litigation, the attorneys suggest they should each receive at least $15,000 to $50,000.
The attorneys also suggest that the judge allocate a portion of the money to some or all of the health agencies and anti-tobacco campaigners who have supported the litigation.
The lawyers cite the efforts of five such entities: The Campaign for Tobacco Free Kids, Arkansas Children’s Hospital, the University of Arkansas for Medical Science, the American Lung Association and the American Cancer Society Cancer Action Network. They all endorsed the litigation, with some even filing briefs in court to support the suit.
By giving money to those entities, the litigation will do more than just compensate customers for old wrongs but can be used to help protect the plaintiffs’ children in the future, the lawyers state.