The Mass Tort Special Report on Camp Lejeune

by Attorney Jeff Keiser

Disaster Averted!

Camp Lejeune Attorney Fees Not Capped.

There was a minor panic over the past two weeks over the potential that the U.S. Senate would amend the PACT Act to cap attorney’s fees in the Camp Lejeune litigation.

Senator Dan Sullivan (R-AK) introduced an amendment that would severely limit any lawyer’s recovery in the Camp Lejeune cases.

His goal was to limit fees in these cases to 2% if the case was resolved via a claim form, and 10% if it required litigation.

Political Leanings

You can see the political leanings from the very name of the proposed amendment – the ‘Protect Camp Lejeune Victims Ensnared by Trial-lawyer’s Scams Act.’

As of this writing, there are a total of 10 senators sponsoring the amendment thus far, all Republicans and none from any state remotely close to Camp Lejeune.

As other Republican senators fell in line, the number of co-sponsors really made some attorneys worry that 2023’s cash cow would become a bust.

The Marine’s Choice

Despite the GOP’s efforts, this amendment has next to no chance of passage.

With the Democrats holding both chambers of congress and the White House, there has been no indication that any Democrat is on board, and even with Republican control of the House after January, there has been no indication that President Biden would sign such a limitation.

As of today, no Democrat has crossed the aisle to sponsor the bill, especially with the harsh limitations included.

The Chairman of the committee that Senator Sullivan’s amendment comes from seemed unconcerned.

“When this [provision] was debated, this issue was not brought up at all,” said Jon Tester (D-MT). “In the end, it’s the Marine’s choice. And if [a senator] wants to deny them that choice, then, wow.”

A Cry For Attention

The story of the amendment ended without a parade, as senate Democrats were able to block it from being discussed on the floor or even have a vote in committee.

The recent midterm elections solidified democratic control of the Senate and the White House, meaning this Amendment is effectively dead.

To my eyes, the entire idea was nothing more than a cry for attention, and I don’t expect we’ll hear much from Senator Sullivan on the subject again.

Caps Are Possible?

That doesn’t mean that caps are 100% dead though.

President Biden’s administration has not been entirely silent on the matter, and the Department of Justice earlier warned everyone that, without a cap, some attorneys could end up receiving the majority of awards.

In essence, this is on the DOJ’s radar, and I would not be surprised to see some kind of compromise to enter the picture, at more reasonable levels, like the 20-25% implicated by the initial draft of the PACT Act. Yes, this is confusing.

The confusion stems from an interesting omission. The PACT Act that was passed earlier this year does not include any discussion about attorney fees, but a 2021 version of the bill did.

That earlier draft limited attorney’s fees to 20% if the case was settled before trial and 25% if it required litigation, in line with 28 U.S. Code § 2678, the statute relating to FTCA claims attorney fees limitations.

The reason this was not included in the final legislation likely boils down to politics, as the democrats required the passage of a clean bill, without amendments.

In essence, the statute on the books is absolutely silent on the topic of attorney’s fees, even if previous drafts were not.

Concerned? Don’t be.. yet

I know a lot of lawyers that are concerned about the imposition of a severe cap like the one in Senator Sullivan’s amendment, and with good cause.

A 2% cap would make these cases hardly worth chasing. But after the passage of some time, I don’t believe there is anything to fear.

I believe the worst-case scenario would be a return to the 2021 draft, limiting attorney’s fees to 20-25%, which, for a case like Camp Lejeune, is at least moderately reasonable.

Stay tuned for any developments.

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