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Wildfire attorneys seek fees from opt-out plaintiffs

Attorneys who achieved a $90 million verdict against PacifiCorp are seeking a cut of damages from wildfire survivors who opted out, arguing the lawsuit’s success benefits related claims.

On Dec. 1 parties are set to argue in Multnomah County Circuit Court whether or not plaintiff attorneys in James et al vs. PacifiCorp are entitled to 20 percent of damages from similar cases.

James attorneys include the firms of Stoll Berne, Keller Rohrback, and Edelson PC. They represent a class of roughly 5,000 survivors of the Santiam, South Obenchain, Echo Mountain Complex and 242 fires, which sparked Sept. 8, 2020.

On June 12 a Portland jury found PacifiCorp negligently liable for the fires and awarded $90 million to 17 plaintiffs. A second phase of trials is scheduled to begin in January for 22 claimants, and this cross-section of claims is meant to set standards for out-of-court resolutions.

PacifiCorp strongly denies wrongdoing and has asked the court to throw out the verdict. Judge Steffan Alexander is expected to rule on this request and other pending motions by Dec. 1.

Before the first trial began, hundreds of class members opted out to seek their own remedies, and these separate claims are at issue.

In a motion filed Aug. 4, James attorneys said the June verdict set a new standard for holding utilities accountable, and subsequent claims benefit from this precedent. They also argued they uncovered key information about PacifiCorp’s negligence, including the company’s efforts to destroy evidence, thereby strengthening other cases.

“Plaintiffs and lead counsel have invested substantial time and money in the years since filing this case,” said the motion. “…An order assessing a common benefit fee upon all who meet the class definition will ensure that plaintiffs do not bear all the costs and that lead counsel are fairly compensated.”

They have requested a 20 percent fee from all judgments and settlements involving plaintiffs who fit the definition of the class.

This plan did not sit well with those representing opt-out plaintiffs and on Aug. 30 attorneys representing around 430 fire survivors from 15 different cases filed their opposition.

They said fire survivors who opted out of the James class have no professional relationship with the James attorneys, and therefore no obligation to pay the requested fee. They said claimants who opted out exercised their right to seek their own remedies and demanding a portion of their damages infringes on that right.

The filing also said trial preparations for the 15 suits have been unique from James, as claims largely center on bodily injury and focus on the Echo Mountain Complex and Kimberling fires. Such preparations have included numerous site visits, depositions, and the acquisition of 500,000 documents from PacifiCorp.

Parties to additional parallel suits have also filed objections to the fee request, as well as PacifiCorp itself. In an Aug. 21 court filing, the utility company called the proposed fee “the largest common benefit fee ever awarded” and said it could potentially stifle settlements for opt-out claimants.

James attorneys acknowledged the fee they are seeking is “extraordinary” but said they also achieved an extraordinary result in an extraordinary case. 

In an Aug. 31 filing in response to the opposition, they said the suit was the first of its kind in Oregon and the first suit against a utility for a mass disaster to be brought to trial in the U.S. They also argued a normal fee in a class-action suit could be between 25 percent and 33 percent, and reiterated their view that the proposed 20 percent was fair and reasonable.

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