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Judge in high-stakes suit praises lawyers

Greg Andrews
December 21, 2011
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Indiana Lawyer Commentary

Indianapolis class-action attorney Irwin Levin just helped lead a legal team that is going to collect more than $6.7 million in fees in a high-profile Iowa lawsuit involving price fixing in the concrete industry.

That in itself is great news for Levin and his firm, Cohen & Malad. So perhaps it’s icing on the cake that the judge, in his Nov. 9 order approving the fees, lavished praise on all the attorneys in the case.

He said class counsel achieved “fabulous results with incredible efficiency” and that he had never been more proud of his profession in his 36-year legal career.

“This case has been to me what it was like when I stood before da Vinci’s ‘Mona Lisa’ and Michelangelo’s David, observing the great masters’ works,” wrote Mark Bennett, U.S. District Court judge for the Northern District of Iowa. “I was overcome with a rare and gargantuan sense of awe that will likely last a lifetime.”

Bennett isn’t some country judge who has never seen a big case before. Appointed in 1994 by President Clinton, he is a former chief judge for the district and is widely regarded as a candidate for a federal appeals court judgeship.

While serving on a special, three-judge panel in 2000, Bennett wrote a “brilliant and detailed” dissent in a criminal case that became the basis for the U.S. Supreme Court’s later reversal, Slate magazine wrote in a 2008 profile of standout judges.

Levin, managing partner of Cohen & Malad, said: “I’ve been fortunate to have many kind words directed at our efforts in the past. But this is obviously quite unique. It is especially gratifying coming from a judge with the stature of Judge Bennett.”

The judge on Nov. 1 approved an $18.5 million settlement to resolve the case brought by Iowa buyers of ready-mix concrete against five concrete companies and three executives who had pleaded guilty to price-fixing.

The topic of the case probably rings a bell. Levin waged a similar battle in Indiana after prosecutors brought price-fixing charges in the state in 2004. The last of seven defendants settled last year, bringing the total recovery to more than $60 million. The legal team – led by Levin and Stephen Susman of Susman Godfrey in Houston – received $18 million in fees.

Iowa is the only other state where prosecutors have brought similar concrete price-fixing charges. In that litigation, Levin – working closely with Cohen & Malad’s Scott Gilchrist – served as co-lead counsel with Gregory Hansel of Preti Flaherty Beliveau & Pachios of Portland, Maine.

levin-irwin-mug.jpg Levin

Bennett praised attorneys for bringing the case to conclusion in a little more than a year, despite myriad “complexities in proving the scope of the price fixing conspiracies and damages to class members.”

He also noted that the settlement was so large that plaintiffs recovered all their losses, even after paying attorneys’ fees. And that’s based on the loss estimate provided by plaintiffs’ expert witness. The Justice Department had estimated the total volume of commerce affected by the price-fixing conspiracy was just $5.7 million.

Despite the favorable outcome for plaintiffs, Bennett said in his order that attorneys for the defendants – including Krieg DeVault in Indianapolis – did a bang-up job as well.

“These exceptionally knowledgeable and sophisticated defense antitrust counsel provided their clients – from rural northwest Iowa small businessmen to an international conglomerate – with invaluable and insightful guidance and representation, sparing their clients likely treble damages, years upon years of litigation stress, and millions of dollars in litigation costs,” Bennett wrote.

Things weren’t always looking so good for Cohen & Malad. Plaintiffs lost on a key motion early on, forcing attorneys to replead the case in a different way.

Given that early setback and the speedy resolution of the case, at first blush the attorneys’ request for more than $6 million in fees “might read more like a ubiquitous Nigerian email scam than the highly meritorious motion it has turned out to be,” Bennett wrote.

He added: “This case is a model for the nation that class actions can, indeed, work exactly as Congress and the federal courts intended – though they rarely do.”•

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Greg Andrews is the managing editor of the Indianapolis Business Journal, a sister publication of the Indiana Lawyer, and writes Behind the News. This column ran in the Dec. 12 issue of IBJ.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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