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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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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

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