Lawyer wants his share of fees awarded in tobacco class action

By Jessica Karmasek | Mar 2, 2016

NEW ORLEANS (Legal Newsline) - A Nevada attorney is suing a group of lawyers and law firms who helped prosecute a class action lawsuit against various tobacco companies, arguing he is owed a portion of the attorneys fees awarded.

Donald J. Bernard filed his nine-page complaint for damages and declaratory judgment in the U.S. District Court for the Eastern District of Louisiana Feb. 16.

The named defendant is The Scott Litigation Group, “an unincorporated association of lawyers and law firms who have prosecuted a class action lawsuit entitled Gloria Scott, et al. vs. The American Tobacco Company, Inc., et al.

Among the law firms included in the group: Bruno & Bruno, Simon Peragine Smith & Redfearn LLP, Bencomo & Associates, Herman Herman & Katz LLC (formerly Herman Herman Katz & Cotlar LLP), Murray Law Firm, Leger & Mestayer, Gertler Gertler Vincent & Plotkin LLP, Kenneth M. Carter PLC, Singleton Law Firm, Law Office of Daniel E. Becnel Jr., Bruce C. Dean LLC, Due Price Guidry Piedrahita & Andrews LC, St. Martin & Williams, and Fayard & Honeycutt APC.

According to Bernard’s complaint, he entered into an attorney-client relationship with Gloria Scott in April 1994. Scott, along with other black Americans similarly situated, filed a class action against the tobacco companies in May 1994 on account of their addiction.

About a month later, in June 1994, Bernard alleges he was approached by a group of attorneys also pursuing class action litigation against the tobacco companies.

Members of the executive committee of Castano PLC represented to Bernard that if he would dismiss his own litigation, Gloria Scott would be added as a class representative in their litigation and, upon certification as a class action, Bernard would participate in the litigation as a member of the PLC and be paid “on an equal basis with other committee members.”

Based on those representations, Bernard says he dismissed the litigation and executed a promissory note in favor of Castano PLC in the amount of $100,000.

At that time, Bernard was designated as a member of the PLC and was issued credentials.

Bernard says he immediately began attending meetings and hearings and performing legal services in the Castano litigation as a member of the PLC.

“At no time did any member of the Castano PLC advise Bernard that he was not a member of the Castano PLC,” he noted in his complaint.

In May 1996, the U.S. Court of Appeals for the Fifth Circuit denied class certification in Castano v. American Tobacco Co., with instructions to dismiss the case.

Soon after, as a result of the Fifth Circuit’s order, members of The Scott Litigation Group -- the majority of whose members were also members of Castano PLC -- filed the lawsuit entitled Gloria Scott, et al. vs. The American Tobacco Company, et al., as a class action on behalf of Gloria Scott and other persons addicted to tobacco smoking.

The class in the Scott litigation was eventually certified and a jury verdict was entered.

After further appeals, a trial court in June 2011 adopted the opinion of the Louisiana Fourth Circuit Court of Appeal and a final judgment was entered for $241,540,488 plus legal interest of $37,180,302.55 for a total of $278,720,790.55 -- which was paid by the tobacco companies into a registry.

Of that amount, $114,275,542 was to be paid to class counsel.

Bernard argues that he is part of the class counsel, and that the Castano Group and Scott Group breached their contractual and fiduciary obligations to him.

To date, Bernard claims he has not received any compensation for his representation of Gloria Scott and his participation as a member of the joint venture, or special partnership.

“At all material times herein, Bernard was a joint venturer with the members of the Scott Group,” he wrote in his complaint. “They pooled their resources and continued to hold out Bernard’s Client, Gloria Scott, as a representative plaintiff in all litigation and other matters.

“As such, each joint venture was entitled to an equal share of all profits. As a joint venture or special partner owner, Bernard maintained an ownership interest in past, present and future profits from these joint ventures.”

Bernard is asking the court to grant a declaratory judgment ruling that he is a special partner with the other members of the Scott Group and has a joint ownership interest in the settlements, “including but not limited to share as a member of the class counsel under the May 10 agreement.”

The case has been assigned to Judge Susie Morgan.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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