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Robert A. SwiftLead CounselKohn, Swift & Graf, P.C.1 South Broad Street, Suite 2100Philadelphia, PA 19107Tel, No.: (215) 238-1700Fax No.: (215) [email protected]
Sherry P. Broder, # 1880Liaison Counsel700 Waterfront Plaza, Suite 400500 Ala Moana BoulevardHonolulu, HI 96813Tel. No.: (808) 531-1411Fax No.: (808) 543-2010sh errybro der@. sh erryb ro d e r. c o m
IN RE:
ESTATE OF FERDINAND E. MARCOSHUMAN RIGHTS LITIGATION
THIS DOCUMENT RELATES TO:
Hilao et al v. Estate of FerdinandE. Marcos,
andDeVera et al v. Estate of FerdinandE. Marcos.
IN THE UNITED STATES DTSTRICT COURTDISTRICT OF I{AWAII
MDL NO. 840No.86-390No.86-330
))))))It
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MEMORANDUM IN SUPPORTOF CLASS COUNSEL'S JOINTMOTION FOR A THIRDINTERIM AWARD OFCOUNSEL FEES AND EXPENSES
JUDGE: MANUEL L. REALDATE: MARCH 28,2019
TABLE OF CONTENTS
EXHIBITS
INTRODUCTION
Table of Authorities
I. A Third Interim Award Is Appropriate
II. Litigation History
A. Background
B. The New York Artwork Litigation
C. Class Counsel
D. Fees and Costs Requested
Several Factors Justifli An Interim Award of 30Yo of theSettlement Fund for Fees and Costs
The Result Achieved Is Extraordinary......
The Litigation Was Risky and Any Recovery Was
Contingent
Class Counsel Were Skillful and DemonstratedCreativity and Ingenuity..
Time and Labor Involved
Customary Fee in the Marketplace for PersonalInjury Work
The Requested Award Is Needed to Encourage OtherAttorneys to Pursue Human Rights Cases
VII. Class Counsel Are Entitled to Reimbursement of Their
lll
iv
,1a.-)
6
6
15
T7
18
T9
2l
24
24
29
32
34
III. Class Notice
ry. Legal Standards Applicable to Fee Awards ........ 19
The Ninth Circuit's Benchmark AwardV.
VI
A.
B.
C.
D.
E.
F.
........ 33
Expenses 35
VIII. Incentive Award to Jose Duran 36
CONCLUSION 37
ll
EXHIBITS
1. Compilation of All Attorneys'Fees and Costs
2. Robert A. Swift Declaration re Nature of the Litigation
3. Robert A. Swift Declaration re Fees and Costs
4. Robert Swift Curriculum Vitae
5. Kohn Swift Costs
6. Kohn Swift Fees
7. Sherry Broder Declaration
8. Sherry Broder Curriculum Vitae
9. Sheny Broder Fees and Costs
10. Philip Raible Declaration, CV and Fees
1 1. Jeffrey Glen Declaration
12. Jeffrey Glen Curriculum Vitae
13. Anderson Kill P.C. Costs
14. Anderson Kill P.C. Fees
15. Republic Act 10368
ill
TABLE OF AUTHORITIES
Fnnnnar, Casns
Arch v. The Amerícan Tobacco Co., Inc.,17s F.R.D . 469 (E.D.Pa. 1997)......
Argenal v. (Inion Bank of Switzerland,e7-660s (c.D.cA)
Central R. & Banking Co. v. Pettus,113 U.S. 116 (188s)
De Leon v. Marcos,No. 09-2216 (D. Colo.)
Del Prado v. B.l{. Development Company, Inc.,0s-234 (D. Tex.)
Del Prado v. B.N. Development Company, Inc.,660 F.3d 602 (sth Cir. 2010)
Deposit Guaranty Nat. Bank v. Roper,44s U.S. 326 (re80)........
Detroit v. Grinell Corp.,49s F.2d 448 (2nd Cir. l9t4)............
Dístrict Attorney of New York v. Republic of the Philippines,No. 14-890 (SDNY)
Estate of Ferdinand E. Marcos Human Ríghts Litígation (Trajano vMarcos)(Estate I),978 F .2d 493 (gth Cir. 1,992)
Fischel v. Equitable Lift Assur. Soc. of U.5.,307 F.3d 997 (9th Cir.2002) . . . . .
Guam Soc. Of Obstetricians & Gynecologists v. ADA,100 F.3d 691 (9th Cir. 1 996) .......
Page(s)
Blum v. Stenson,46s US. 886 (1984)........ .......20
t9
10
10
I2
20
25
9
2
10, 16
26
IV
27
Harris v. Marhoefer,24F.3d l6 (9th Cir. 1994)
Hilao v. Estate of Ferdínand E. Marcos (Estate II),25 F.3d 1467 (9th Cir. 1994)
Hilao v. Estate of Marcos,2012 WL 535 1264 (9th Cir. 20t2)
Hilao v. Estate of Marcos,393 F.3d 987 (gth Cir.2004)
Hilao v. Estate of Marcos,9s F.3d 848 (9th Cir. 1996)
Hilao v. Estate of Marcos,97C0477 (N.D.IL).
Hilao v. Estate of Marcos (Estate III),
In re FPl/Agretech Securities Litígation,105 F.3d 469 (9th Cir. 1997) .............
In re Gulf Oil/Cíties Service Tender Of,er Litig.,142 F.R.D. 588 (S.D.N.Y. r9e2)
In re Heritage Bond Litígatíon,2005 WL I s94403 (C.D.Cal.)..
In re Immunex Sec. Litig.,864 F. Supp. 142 (W.D. Wash. 1994)......
In re Marcos Human Rights Litigatíon,910 F.Supp. t460 (D.HI 199s)
In re Mego Fin. Corp. Sec. Litig.,213 F.3d 454 (9th Cir. 2000)(33%.fees awarded)
.3,9
34
l2
.26
.26
103 F.3d 767 (grhCir. 1996)
In re "Agent Orange" Prod. Liab. Litig.,818 F.2d 226 (2d Cir.1987)........ ...........2s
In re Enforcement of Philippine Judgment Against All Assets ofArelma,5.A.,No. l6-1339 (D.DC)
aJ
10
9
9
.21
......34,36
22
21
In re Mercury Interactive Corp. Securities Litigation,618 F.3d 988 (9th Cir. 2010)
In re Nat'l Health Labs. Sec. Litig.,Nos. 92-1949 &.93-1694 (S.D. Cal. Aug. 15, 1995)
In re Pacific Enters. Securities Litigation,47 F.3d 373 (9th Cir. 1995)
In re Philippine Nat'1. Bank,397 F.3d 768 (grh Cir. 2005)
886 F.2d 268 (gth Cir. 1989)
Powers v. Eichen,229 F.3d 1249 (9th Cir. 2000)
Razilov v. lVationwide Mut. Ins. Co.,01-cv-1466,2006 V/L 3312024 (D. Or. Nov. 13,2006)
re Informix Corp. Sec. Litig.,No. 97-cv -1289 (N.D. Cal., Nov. 23, 1999)
Republic of the Philippines v. Abaya,No. I 4-3829 (SDNY)
Republic of the Philippines v. Christie's,98-3871 (S.D.N.Y.)
Republic oJ'the Phílippines v. Estate of Pimentel,
...19
2l
22
In re THC Fínancíal Corp. Litigation,86 F.R.D.72t (D.HI 1980)
In re LT/ashington Pub. Power Supply Sys. Sec. Litig.,l9 F.3d r29r (9Ih Cir. 1994) ...21,25
Merrill Lynch v. El{C Corporation,464F.3d 885 (2006) .. ........ ..................11
Morris v. Lifescan, Inc.,54 Fed. App*. 663 (9th Cir.2003)..... ........ .........21
Paul, Johnson, Alston & Hunt v. Graulty,
15
34
21
)1 ))Þtt 2L
............22
....22
10, 16
9
ss3 u.s. Bsr (2008).....
VI
...1 1
Rosales v. Credit Suisse,e6-64te (c.D.cA).
Siderman de Blake v. Republic of Argentina,96s F .2d 699 (grh Cir. 1 992)
Trajano v. Marcos,878 F.2d 1429 (9th Cir. 1989) ......
Trustees v. Greenough,r0s u.s. s27 (1882)........
Van Vranken v. Atl. Richfield Co.,901 F.Supp. 294 (N.D. Cal. 1995) ............
Vincent v. Hughes Air West, Inc.,ss7 F.2d7s9 (gthCir. 1977)
Srarn C¿.sns
Duran v. Bautísta,No. 65426112012 (NT.Y. Sup. Ct.)
-^.-, J
r9
36
l9
12
9
6
aJ
2
2
10, l8
Swezey v, Merrill Lynch,No. 10473412009 (N.Y. Sup. Ct.) ...... 10, 11, 18,35
Swezey v. Merríll Lynch,No. 15560012013 (N.Y. Sup. Ct.)
Van Loan v. Van Loan,89s P .2d 614 (Mont . 1995)
Fnnnn¡r- Srarurns
28 IJ.S.C.2467 13
31 Vand. J. Trans. Law 325 (1998)
Faúure of the Alien Tort Claíms Act of 1989..
,2Torture Victím Protection Act
vll
Rulns aNn RncULATIoNS
Fedeal Rules of Civil Procedure Rule 23
International Law and World Order 673
OrnrR AurnonITIES
Anita Ramasastry, Secrets and Lies?,Sw¿ss Banks and InternatíonalHuman Rights.....
Barry E. Carter and Phillip R. Trimble,International Law 941 (2d ed.
tees)
Eisenstat, Imperfect Justice (Public Affairs 2003)
Frank Newman and David Weissbrodt, International Human Rightss19 (2d ed. 1996)
Henry J. Steiner and Philip Alston, International Human Rights inContext 7 93 (1996).....
157 (3rd ed. 1995)......
Stuart Logan et al., Attorney Fee Awards ín Common Fund Class
20,30
.2 ^|J
2
JJ
aJ
2
aJ
aJ
Louis Henkin, Richard Crawford Pugh, Oscar Schachter, and HansSmit, International Law 191 (3rd ed. 1993) ..........3
Marcos Human Rights Litigation, 67 St. John's L. Rev. 491 (1993) 2
Merríll Lynch v. Arelma Inc.,00-s9s 10, 11
Pimentel v. Merrill Lynch,00-580 l0
Ralph Steinhardt, Fulfilling the Promise of Filartiga: LítigatingHuman Rights Claims against the Estate of Ferdinand Marcos,20Yale J. Int'l L.65 (1995)
Richard B. Lillich and Hurst Hannum, International Human Rights
2
Actíons...
vlil
22
Plaintiffs' Class Counsel submit this memorandum of law in support of their
motion for a third interim award of attorneys' fees and reimbursement of expenses.
A third interim award is appropriate here since (1) Class Counsel recently
recovered $13.75 million in a settlement over alleged artwork of Imelda Marcos in
New York, (2) Class Counsel have previously received only two prior interim
awards of counsel fees during the past 33 years, (3) the Court is able to authorize a
third distribution to class members from the Settlement Fund, and (4) Class
Counsel continue to execute on the two Judgments rendered in this litigation.
Should the Court award fees and expenses in the amounts requested, an estimated
$1,500 would be available for distribution to each eligible Class member
INTRODUCTION
This litigation has pioneered a whole new approach to human rights
litigation. Courts and academicians judge it a landmark case on a variety of points
o The first class action human rights case in history
The first fully litigated human rights case in IJS history
The first appellate acceptance of a benchmark award for tort claimants
The largest affirmed personal injury Judgment in US history
t
I
o
t The first human rights Judgment against a former head-oÊstate
i The first collection of a human rights Judgment from a perpetrator in
history
o The first distribution of compensation to human rights victims in Asra
Class Counsel demonstrated that a large mass tort case could be efficiently
and successfully litigated before a jury. The only comparable litigation was the
Nurnberg Trials of 1946-47 in which the Allied Powers prosecuted Nazi's for war
crimes. ^See
The Nurnberg Trial, 6 F.R.D. 69 (1946). This case is now a paradigm
of how the new genre of human rights cases are brought, and served as a model for
the Holocaust cases.l The Supreme Court has cited to the Marcos Litigation in
several of its decrsrons.
I This litigation, and the many appellate decisions that have been writtenregarding the issues it has raised, has generated an extensive literature and has had
a substantial impact on other cases.* This Court's decision on the methodology of compensatory damages in In reMarcos Human Rights Litigation, 910 F.Supp. 1460 (D.HI 1995) has been cited byboth the Fifth and Eleventh Circuits.* Four law review articles have been written focusing on this case: Joan
Fitzpatrick, The Future of the Alien Tort Claims Act of 1989: Lessons fro* In reMarcos Human Rights Litigation, 67 St. John's L. Rev. 491 (1993); RalphSteinhardt, Fuffillíng the Promise of Filartiga: Litigatíng Human Rights Claims
against the Estate of Ferdinand Marcos, 20 Yale J. Int'l L. 65 (1995); AnitaRamasastry, Secrets and LiesT Sw¿ss Banks and International Human Rights,3IVand. J. Trans. Law 325 (1998); Riza DeJesus, Retroactive Application of the
Torture Victim Protection Act to Redress Philippine Human Rights Víolations,2Pac. Rim Law &. Pol. J. 319 (1993).* The Ninth Circuit's first published opinion, Estate of Ferdìnand E. MarcosHuman Rights Litigatíon (Trajano v. Marcos)(Estate I),978 F.2d 493 (9tr'Cir.1992), has been cited in 63 other decisions. lt has also been cited in 229 lawreview articles and several international law casebooks, including Burns H.
2
I. A Third Interim Award Is Appropriate
Class Counsel request a third interim award, not a final award of fees and
costs, because of the atypical posture of the litigation. The common fund in this
case was generated through settlements and executions on two Judgments. The
1995 Judgment, with accumulated interest, exceeds $6 billion. The 20ll Judgment
exceeds $400 million. Class Counsel are continuing to execute on the Judgments.
Because the Marcoses have concealed much of the Estate's assets and the courts of
the Republic of the Philippines (the "Republic") have not recognized the
'Weston, Richard A. Falk, and Hilary Charlesworth, International Law and WorldOrder 673 (3'd ed. 1997); Frank Newman and David Weissbrodt, InternationalHuman Rights 519 (2d ed. 1996); Barry E. Carter and Phillip R. Trimble,International Law 941 (2d ed. 1995); Louis Henkin, Richard Crawford Pugh,
Oscar Schachter, and Hans Smit, International Law 191 (3'd ed. 1993). In addition,an amicus curiae brief submitted by international law professors in connectionwith this appeal was published in 12 Hastings Int'l and Comp. L. Rev. 4 (1988).* The second published opinion, Hilao v. Estate of Ferdinand E. Marcos (Estate
II), 25 F.3d 1467 (9th Cir. 1994), has been cited in 79 subsequent decisions, and
was explicitly followed in, for instance, Van Loan v. Van Loan,895 P.2d 614, 616
(Mont. 1995). It has also been cited in 263 law review articles and in several
international law casebooks, including Burns H. Weston, Richard A. Falk, and
Hilary Charlesw orth, International Law and World Order 673 (3'd ed. 1997);
Henry J. Steiner and Philip Alston, International Human Rights in Context 793
(1996); Richard B. Lillich and Hurst Hannum, Internatíonal Human Rights 157
(3'd ed. 1995).* The third major substantive opinion, Hilao v. Estate of Marcos (Estate III),103F.3d767 (9th Cir. 1996), has already been cited in77 other decisions, and was
explicitly followed inArch v. The American Tobacco Co., Inc., 175 F.R.D.469,493 (E.D.Pa. 1 997). It has also been cited in 108 law review articles.
Excerpts frorn the rnajor substantive cases have been included, with questions and
discussion materials, at pages 3l 8-44 in the casebook, International Law and
Litigation in the U.S., edited by Jordan J. Paust, Joan M. Fitzpatrick, and Jon M.Van Dyke, and published by WestGroup in 2000.
aJ
Judgments, Class Counsel may or may not be successful in recovering other
property. Should other property be recovered by Class Counsel, they will file a
new fee application. Class Counsel documented the totality of time they spent
from March 1986 through June 2013 in connection with their second interim fee
petition. A summary of their prior lodestar and the lodestar for the period July 1,
2013 through August 31, 2013 is attached as Exhibit "1". At this time, Class
Counsel are seeking 30o/o of the $13.75 million settlement for fees. In addition,
costs and other disbursements should be paid from the Settlement Fund. The
proposed allocation of fees/costs/incentive award is as follows
$ 1,178,338+13 750 000$14,928,338- 4,125,000- 20,000
Net Settlement Fund as of l2l3lll8New SettlementTotal Available in FundCounsel Fee (30% of the $13.75 million)Incentive AwardCollective Costs and Expenses of CounselBalance Available for Distribution and DistributionExpensesPayment of $1,500 to 6,500 Class MembersCost of DistributionBalance after Distribution
- 7l 181
s 10,712,157
- 9,750,000- 200.000S-JAJ5T
At the current exchange rate of $1 : 52.5 Pesos, the $1,500 payout is equal to
78,750 Philippine Pesos. In 2011, each claimant received $1,000. ln2014, each
claimant received $ 1 ,1 76. The $200,000 expected cost of distributing the proposed
$1,500 to approximately 6,5002 eligible claimants is consistent with the costs
2 The 2010 distribution reached 6,505 eligible class members. The 2014
4
incurred in each of the prior two distributions. The above does not include a claim
for statutory poundage by the New York City Sheriff for 5o/o of the $13.75 million,
or $687,500. Class Counsel are contesting this claim.
While Class Counsel hope to recover more Marcos funds in satisfaction of
the Class judgments, the prospect for future recoveries is dim. Despite 22 years of
litigation in Philippine courts, those courts have so far refused to recognize the
judgments of this Court. Class Counsel continue to spend time and effort seeking
recognition of the judgments in the Philippines, relying on the effort of Philippine
co-counsel. The current political situation in the Philippines, where the heirs of
F'erdinand Marcos have gained ascendancy, bodes ill for the Class' prospects. The
only Marcos assets outside the Philippines which the Class has identified are the
$41 million in Arelma funds, which are currently in the custodianship of the New
York State Comptroller. Litigation over the Arelma funds began in 2000 and
continues today in the United States District Court for the District of Columbia.
Unfortunately, in That litigation the United States Department of Justice is
opposing the Class' claims
distribution reached 6,375 class members. Class Counsel believe that 6,500 is agood approxirnation of the number of Class members who will appearto receive a
third distribution.
5
il. Litigation History
A. Background
The history of this case is laid out in some detail in the Declaration of Robert
A. Swift attached hereto as Exhibil "2". Because the history of the litigation is
known to the Court, we will only summarize it here.
Class Counsel have worked on this case for 33 years pursuing claims for the
poorest of the poor. The central allegation, that a former foreign head-oÊstate was
responsible for the torture, summary execution and disappearance of 10,000 of his
countrymen, was of such breadth that few people thought it could survive or be
proven. In fact, the original judge assigned to the case dismissed it on Act of State
grounds, and three (3) years passed before the case was reinstated by the Ninth
Circuit. See Trajano v. Marcos,878F.2d 1429 (9th Cir. 1989).
The case was defended by u cadre of experienced attorneys in the United
States with national reputations who were paid in excess of $5 million for their
efforts. They were assisted by the Marcoses' legion of Filipino attorneys.
Discovery was fraught with real danger as well as frustration. The Philippine
military, which had carried out Marcos' suppression, was hostile to the case and
denied having any documents. There were a half dozen coup attempts by the
military between 1987 and 1991, leading Filipinos to worry that a military regime
would supplant the new democratic regirne. Witnesses were frightened to come
6
forward and be named or testiff. Before and following the deposition of Mrs.
Marcos at her home in San Juan, Metro-Manila in January 1993, Class Counsel
were jeered and assaulted by a mob of 500 people that had been organized by the
Marcos family. In October 1994, the Republic obtained a temporary restraining
order against Class Counsel taking depositions in the compensatory damage phase
of the trial. As a result of obeying this Court's Order to continue with the
depositions, Lead Counsel was cited for contempt of a Philippine court TRO and
had to defend himself at a contempt hearing in which he was threatened with
deportation. In June 1997, a smaller crowd of 50 persons organized by the
Marcoses jeered and confronted Class Counsel as they left a court hearing in
Manila to enforce the Judgment in this case.
Lead Counsel traveled to the Philippines more than 35 times in the course of
the case. Prior to a final Judgment, Class Counsel conducted significant discovery,
including about 250 depositions. The majority of pretrial depositions were
conducted in the Philippines, with a dozen videotaped for use at trial. The
depositions of the Philippine Secretary of Defense and Chief of Staff of the
Philippine military were taken. A total of 10 experl witnesses testif,ied al
deposition and trial. Thousands of documents obtained frorn FOIA requests and
goveffìmental archives were reviewed. After years of efforl, Class Counsel finally
gained access to records kept by Ferdinand E. Marcos at his presidential palace
7
which had not been destroyed. These proved valuable at trial to show that Marcos
had knowledge of ongoing torture and execution of civilians.
The trial was conducted in three phases: liability, exemplary damages and
compensatory damages. The liability trial in September 1992 was a massive
logistical undertaking at which almost 50 witnesses testifìed live or by videotape.
All the live witnesses had to travel to Hawaii from the mainland or from the
Philippines. ln 1994, the jury which had heard the liability phase of the case was
reconvened to determine exemplary damages. The jury returned an award of a
stunning $1.2 billion. In advance of the January 1995 trial on compensatory
damages, Class Counsel took about 200 depositions of claimants (randomly
selected) and their witnesses throughout the Philippines in a period of about five
weeks. Traveling with court reporters and interpreters, the depositions were
conducted in ten languages throughout the Philippines. Class Counsel worked 12
to l6 hour days preparing witnesses and taking testirnony. After considering these
depositions and the report of the Special Master, the jury awarded the Class $766
million in compensatory damages, for a total Judgment of almost $2 billion.
By 1999 there had been over a dozen appeals at different times to the Ninth
Circuit Court of Appeals, eight of which resulted in reported decisions. All
appeals had to be extensively briefed and half were argued orally. In over half the
appeals the US State Department, the Republic or the Swiss government filed
8
amicus briefs opposing the Class.3 Many involved motion practice in the Ninth
Circuit. Two petitions for certiorari were filed with the United States Supreme
Court. In addition there was extensive satellite litigation in courts in Hawaii
(state), Califomia (state and federal), New York (federal and state), Illinois (federal
and state), Texas (federal and state), Colorado (federal), \Mashington D.C.
(federal), Philippine, Switzerland (Zurich, Geneva and Freiburg), and Singapore
courts, including the appellate courts. These involved a subpoena enforcement
proceeding (in New York), seven letters rogatory proceedings (three in the
Philippines, three in Switzerland and one in Hong Kong), four probate proceedings
(two in Hawaii and one each in California and New YorÐ, transfer and
enforcement of the Judgment, a 3-week trial in Singapore, and more than a dozen
execution proceedings.a
, Class Counsel received no support from any governmental investigation, and
were actively opposed by rnultiple governments. In this respect, the wisdom ofanother federal judge in awarding a one-third fee resonates:
fT]his is not a case where plaintiffs' counsel can be cast as jackals to the
government's lion, arriving on the Scene after some enforcement or
administrative agency has made the kill. They did all the work on their ownThey invested time and money in this case and well deserve the
payment they request.
In re Gulf OÌl/Cities Service Tender Offq Lítig., 142 F.R.D. 588, 597 (S.D.N.Y.
tee2).4 The execution proceedings included, inter alia: Hílao v. Lei Investments,
Inc. (D.HI); Hitao v. Estate of Marcos, Misc. No.30412R (C.D.CA); Rosales v.
Credit Suisse, 96-6419 (C.D.C A); Argenal v. IJnion Bank of Switzerland, 97-6605
9
Class Counsel devoted considerable time and effort to negotiating a
settlement with the Marcos family. Because the Republic claimed title to the
Marcos wealth, the three-way conflict led to a prolonged impasse. Both the
Marcos family and the government were extremely tenacious and have yet to
resolve their major differences. Class Counsel spent a week in Hong Kong with a
mediator and representatives of the Marcoses, Republic and Swiss government
trying to conclude a deal in 1997. In 1999 Class Counsel did conclude a settlement
agreement with the Marcoses and the Republic for $150 million which received
this Court's preliminary and final approval. However, the Republic failed to
transfer the settlement proceeds to this Court, thus preventing consummation.
Class Counsel spent significant time post-trial enforcing the Judgments and
were successful in litigation over the house (Sl million) and car ($30,000) used by
Ferdinand E,. Marcos in Hawaii. An interpleader proceeding in New York
involving ownership of a painting by Pablo Picasso was resolved with the Class
(C.D.CA) ; Hilao v. Estate of Marcos, 97C0477 (N.D.IL); Republic of the
Philippines v. Christie's, 98-3871 (S.D.N.Y.); Mijares v. Estate of FerdinandMarcos, (Makati Regional Trial Court, Philippines); Pimentel v. Mercill Lynch,00-580 (D.HI); and Merrill Lynch v. Arelma Inc.,00-595 (D.HI); Del Prado v. B.l''1.
Development Company, Inc., 05-234 (D. Tex.); De Leon v. Marcos, No. 09-2216(D. Colo.); Swezey v. Merríll Lynch, No. 10473412009 (N.Y. Sup. Ct.); Duranv.Bautista, No. 65426112012 (N.Y. Sup. Ct.); Distríct Attorney of New York v.
Republic of rhe Philippines, No. l4-890 (SDNY); Republic of the Philippines v.
Abaya, No. 14-3829 (SDNY); In re Enþrcement of Philippine Judgment AgainstAll Assets of Arelma, 5.A., No. I 6-1339 (D.DC).
10
receiving $446,534.7I. Certainly the most time-consuming execution was the
interpleader action known as Meruill Lynch v. Arelma lec., No. 00-585, where the
Class received a judgment for approximately $35 million which had been
deposited by Ferdinand E. Marcos in an account at Merrill Lynch in New York
opened and maintained in the name of a Panamanian corporation. After Class
Counsel initiated suit against Merrill Lynch, the latter agreed to deposit the assets
at issue with this Court and file an interpleader proceeding. The action was
fiercely fought by the Republic, Philippine National Bank, Arelma and The Golden
Budha Corporation. In the course of the four-year litigation, there were eight
interlocutory appeals or mandamuses to the Court of Appeals. The Class prevailed
in a non-jury trial in July 2004. The Ninth Circuit affirmed the judgment, Merrill
Lynch v. ENC Corporation,464 F.3d 885 (2006), but the Supreme Court reversed
and vacated the judgment on procedural grounds. Republic of the Phílippines v
Estate of Pimentel, 553 U.S. 851 (2008)
Class Counsel then executed on the assets held at Merill Lynch in the New
York Supreme Court. Swezey v. Merrill Lynch, No. 10413412009 (N.Y. Sup. Ct.).
After three years of difficult litigation, the New York Court of Appeals dismissed
the case without prejudice to allow the Republic time to perfect its Philippine
judgment in New York. Swezey v. Merrill Lynch, 19 N.Y.3d 543 (2012). After
one year passed with no action by the Republic, Class Counsel filed a new
ll
proceeding to obtain the proceeds of the Arelma account. Swezey v. Merrill Lynch,
No. 15560012013 (N.Y. Sup. Ct.). \n 2014, the New York Appellate Division
stayed the case to allow the IJS Attorney General to file a petition to enforce the
Republic's forfeiture judgment as to Arelma assets.
In June 2016, the Attorney General filed a petition in federal court in
Washington, D.C. to enforce the Republic's forfeiture judgment. In re
Enforcement of Philíppíne Forfeiture Judgment, No. 16-139 (RJL). The Class
immediately moved to intervene. Disappointingly, that Court has done nothing to
resolve pending motions or otherwise advance the case for more than two years.
Consequently, Class counsel filed a motion in the New York Supreme Court in
November 2018 to vacate the stay of proceedings and set a trial date
Class Counsel litigated a claim to more than 4,000 acres of real estate in
Texas and Colorado beginning in 2005. See Del Prado v. B.N. Development
Company, Inc., 660 F.3d 602 (5th Cir. 2010). After intense litigation and an appeal
in the Fifth Circuit Court of Appeals, Class Counsel was able to make a $10
million settlement which was approved by the Texas court in 2010. That
settlement enabled this Court to direct the first distribution to Class members in
201t.
On January 25, 2011, this Court entered a judgment on contempt against
Imelda Marcos, Ferdinand R. Marcos and the Marcos Estate for attempting to
12
dissipate the assets of the defendant Estate. The contempt proceeding began in
January 1995. The Court held 10 hearings on the contempt sanction over 16 years
before finally entering judgment in 2011 in the amount of $353.6 million. The
contempt judgment was upheld on appeal, Hilao v. Estate of Marcos,2012 WL
5351264 (grh Cir. 2012). The judgment was registered in New York. Class
Counsel executed on this judgment against artwork allegedly owned by Imelda
Marcos as more fully described below.
Despite the very substantial risk that Class Counsel would never be paid for
their labors, Class Counsel advanced more than $1.9 million in costs over 33 years,
including spending over $31,000 for Califomia probate counsel to defend a
California probate proceeding (brought in bad faith by the plaintifß in the Golden
Budha case trying to prevent the Plaintiff Class from collecting on its Judgment);
over $625,000 to Singapore attorneys; and over $30,000 to Hong Kong attorneys
But Class Counsel were forced to litigate frugally. One example, Class Counsel
convinced 9 of the l0 expert witnesses who testified at the three-phase trial not to
charge for their time. Another example, in I99l Lead Counsel created the first
countrywide human rights database (as parl of giving class notice) listing almost
20,000 reported abuses. This was accomplished by hiring a computer lab at a
Manila university and using students, all for $5,000
13
Over the past 20 years, Class Counsel advocated to the Philippine Congress
to pay compensation to Class members. In February 2013, President Aquino
signed legislation, R.A. 10368, to pay $250 million compensation to human rights
victims of the Marcos regime. ,See Exhibit 15. Class counsel lobbied for two
provisions which were enacted in the legislation. The legislation provides that
claims of the original 9,539 Class members are presumptively valid. It further
provides that compensation paid to Class members is independent from their
recovery on the Class judgments against the Marcos Estate.
Some 3,900 members of the Class applied for and received distributions of
money in May 2018 ranging from $3,500 to $35,000 depending upon the severity
of the injury sustained. Heirs of victims of summary execution and disappearance
received the maximum $35,000.
The $250 million funding provided for in R.A. 10368 derived directly from
Swiss bank accounts controlled by Ferdinand and Imelda Marcos. This Court had
assigned those bank accounts to the Class by Order dated July 14, 1995. However,
authorities and banks in Switzerland, Singapore and the Republic refused to
recognize this Court's judicial assignrnent despite the best efforts of Class counsel
to enforce it. See In re Philippine Nat'\. Bank,397 F.3d 768,770 (9th Cir. 2005);
Republic of the Philippines v. Maler Foundation, 2013 SGCA 66 (Singapore Ct
Appeals 2013).
t4
Although the work of Class counsel in obtaining judgments against the
Marcoses was seminal in the payout to Class members from R.A. 10368, Class
counsel received no compensation therefor
B. The New York Artwork Litigation
The settlement which prompts the filing of the instant motion arises from
litigation begun in 2012 against Vilma Bautista, a former assistant to Imelda
Marcos. In November 2012, the District Attorney for New York County
("DANY") unsealed an indictment against Vilma Bautista. The indictment alleged
that in September 2010 Bautista sold an impressionist painting by Claude Monet
titled Le Bassin aux lt{ymphease (the "Water Lily") once owned by or in the
collection of Imelda Marcos to an unnamed art gallery - but without the authority
of Imelda Marcos - for $32,000,000. Within 10 days, Class Counsel fìled a
lawsuit against Bautista and DANY (who had seized the Painting and proceeds
from its sale) in New York Supreme Court seeking the Water Lily, other artwork
once owned by Imelda Marcos, and the proceeds from the sale of the Water Lily
Class Counsel learned that the art gallery resold the Water Lily to a foreign citizen
In July 2073, the owner of the Painting agreed to pay $10,000,000 to the Class to
avoid litigation. The settlement proceeds were distributed to Class members in
2014.
15
In that settlement, Class Counsel preserved the Class' right to pursue the
proceeds from the sale of the "Water Lily" and other property once owned by
Imelda Marcos. The Class sued over the property in State Court. In February
2014, the District Attorney filed in the United States District Court for the
Southern District of New York an interpleader naming as defendants the Class, the
Republic of the Philippines, Vilma Bautista, Imelda Marcos and others and seeking
a ruling of ownership of 170 items of property . See District Attorney of lt[ew York
County v. The Republic of the Philippines, et ø/., No. l4-890 (KFP). The District
Attorney deposited the property with the Clerk of Court. The federal court stayed
the State Court proceedings. The Class asserted claims against certain of the
interpleaded property, limited to the proceeds from the sale of the "Water Lily"
and two impressionist paintings: L'Eglise et La Seine a Vetheuil by Claude Monet
("L'Eglise") and Langland Bayby Alfred Sisley ("Langland Bay"). The Class also
intervened in a related case known as The Republic of the Philippines v. Gavino
Abaya et al., No. I 4-3829 (KFP) seeking damages against certain parties arising
out of the sale of the "'Water Lily."
Full discovery ensued in both cases, including the production of thousands
of pages of documents and about l0 depositions. The Class and other parties
moved for summary judgment. The other parties asserted substantial claims.
Bautista produced a written Deed of Assignment dated 1983 from Imelda Marcos
16
gifting her the paintings. The Republic claimed that all the paintings had been
purchased with monies stolen from the Republic. Golden Budha Corporation
claimed that all the paintings had been purchased with gold stolen from its
assignor, Roger Roxas.
ln a 93-page Opinion dated March 29, 2078, 307 F.Supp. 3d l7l, the federal
court denied all the motions and later set a trial date. Various efforts to settle the
cases ensued for many months. After two lengthy settlement conferences with the
federal court judge, the parties reached a Settlement pursuant to which the Class
will receive $13.75 million cash and the other parties, including the Republic, will
divide the remaining interpleaded property with a value of less than $10 million.
C. Class Counsel
Class Counsel who join in this fee application and their respective roles are
as follows
1. Robert Swift. He is Lead Counsel and chief trial counsel for the
Class. He has been involved in bringing each of the many cases which form part
of this litigation. See Exhibits 2 and 3.
2. Sherry Broder. She is Liaison Counsel and co-trial counsel for the
Class. She has been involved in one capacity or another in virtually all the cases
which form part of this litigation. See Exhibits 7 and 8
17
3. Philip Raible. He is a solo practitioner attorney in New York City.
He is co-counsel in the Duran v. Bautista litigation. See Exhibit 10.
4. Rodrigo Domingo. He is Philippine counsel who has been involved in
the main litigation and is handling the Philippine enforcement proceeding with the
assistance of other Filipino counsel. He has been involved in various capacities in
all cases which form part of this litigation including the 20Il and 2014 distribution
of compensation to Class members
5. Jeff Glen. He is a member of Anderson Kill, P.C. with offices in New
York City and Washington, D.C. Since July 2008 he has been co-counsel in the
Swezey litigation and the Washington D.C. litigation to obtain the Arelma funds.
,See Exhibits 1l and 12
D. Fees and Costs Requested
After receipt of the $ 1 3.75 million settlement proceeds, the Settlement Fund
will total approxirnately $14,928,338. Class Counsel request the Court to award
30o/o of the $13.75 million Settlement for fees, or $4,125,000. Additional sums of
$71,181 are requested for costs and $20,000 for an incentive fee to Jose Duran. If
approved, that will leave $10,712,157 for compensation to Class members and the
cost of distribution. If the Court directs distribution of $1,500 to each of 6,500
eligible Class members, $762,157 will remain in the Fund after expensing
$200,000 for the cost of distribution.
18
III. Class Notice
Eligible Class members received individual written notice that Class
Counsel would apply for fees not to exceed 30o/o of the Settlement, together with
reimbursement of costs and payment of an incentive award. The Class Notice
advised Class members where they can view the application for these payments
online consistent with the Ninth Circuit's ruling in In re Mercury Interactive Corp.
Securities Litigation,6lS F.3d 988 (9th Cir.20l0).
IV. Legal Standards Applicable to Fee Awards
It is the law in this Circuit that "a private plaintiff, or his attorney, whose
efforts create, discover, increase or preserve a fund to which others also have a
claim is entitled to recover from the fund the cost of his litigation, including
attorneys' fees." Vincent v. Hughes Air \lest, Lnc.,557 F.2d 759,769 (9th Cir
1977). The purpose of this doctrine is "to spread litigation costs proporlionately
among all the beneficiaries." Id. This rule of law is known as the common-fund
doctrine and is firmly rooted in American case law. See, €.9., Trustees v
Greenough. 105 1J.5.527 (1882),' Central R. & Banking Co. v. Pettus, 113 U.S
116 (1885). Beyond providing just compensation, awards of attorneys' fees from a
colllron fund also serve to encourage skilled counsel to represent those who seek
redress for damages inflicted on entire classes of persons, and to discourage future
19
misconduct of a similar nature. As Chief Justice Burger explained in Deposit
Guaranty Nqt. Bankv. Roper,445 U.S. 326,338 (1980):
Plainly there has been a growth of litigation stimulated bycontingent-fee agreements and an enlargement of the role this type offee amangement has played in vindicating the rights of individualswho otherwise might not consider it worth the candle to embark on
litigation in which the optimum result might be more than consumed
by the cost. The prospect of such fee arrangements offers advantages
for litigation by named plaintiffs in class actions as well as for theirattorneys. For better or worse, the financial incentive that class actions
offer to the legal profession is a natural outgrowth of the increasingreliance on the "private attorney general" for the vindication of legalrights; obviously this development has been facilitated by Rule 23.
In Blum v. Stenson, 465 US. 886 (1984) the Supreme Court adopted the
percentage method of computing fees as the proper approach in the common-fund
context where, as here, fees are paid out of (not in addition to) the fund recovered:
Unlike the calculation of attorney's fees under the "common funddoctrine," where a reasonable fee is based on a percentage of the fundbestowed on the class, a reasonable fee under $1988 reflects the
amount of attorney time reasonably expended on the litigation." U.
Compensating counsel in common fund cases on a percentage basis makes good
SENSC First, it is consistent with the practice in the private marketplace where
contingent fee attomeys handling personal injury litigation receive compensation
on a percentage-of-the-recovery method. Second, a percentage fee provides
plaintifß' counsel with a strong incentive to maximize the recovery for the plaintiff
class. Third, the percentage method minimizes the Court's burden in examining
time records using the lodestar/rnultiplier rnethod. In this case, the percentage
20
method is the only logical method for calculating fees since the collective unpaid
lodestar of Class Counsel far exceeds the $13.75 million Settlement amount
V. The Ninth Circuit's Benchmark Award
As this Court stated when it made the first interim award of legal fees (Tr
lll3lll at 15), the Ninth Circuit established25% of a common fund recovery as
the "benchmark" award for attorneys fees in common fund actions which the lower
court "can then adjust upward or downward to fit the individual circumstances" of
the case. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir
1989). The guiding principle is that the fee award be "reasonable under the
circumstances." In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d
1291, 1296 (9th Cir. 1994). The percentage awarded is based on the gross
recovery, not the net after deducting costs. Powers v. Eichen,229 F.3d 1249, 1258
(9th Cir. 2000).
In the Ninth Circuit, many district courts have awarded more than 25Yo of
the recovery as pure fees in cases not nearly as complex nor difficult as the instant
case Class counsel in this case have achieved a stunning result despite the odds
totally against it. The over three-decade long commitment to the clients is
unprecedented. See, e.g., Morris v. Lifescan, Inc.,54 Fed. Appx. 663,663 (9th Cir
2003) (affirming 33o/o fee of $14.8 million fund); In re Mego Fin. Corp. Sec. Litíg.,
213 F.3d 454 (9th Cir. 2000)(33% fees awarded); In re FPl/Agretech Securities
21
Litigation, 105 F.3d 469 (9th Cir. 1997)(35% fees awarded); In re Pac. Enters
Secs. Litíg.,47 F.3d373,379 (9th Cir.1995) (approvinganaward of 33o/o of a $12
million settlement fund); Sínger v. Becton Dickínson and Co., No. 08-cv-827,2010
WL 2196104, at *9 (S.D. Cal. June 1,2010) (granting fee award of 33.33o/o of the
$t million fund); Fernandez v. Victoria Secret Stores, LLC, No. 06-cv-04l49,
2008 WL 8150856 (C.D. Cal. July 21, 2008) (granting fee award of 34o/o of the
$8.5 million fund); Razilov v. Nqtionwide Mut. Ins. Co., 0l-cv-1466, 2006 WL
3312024 at *1 (D. Or. Nov. 13,2006) (awarding 30o/o of a $19 million fund); In re
Inþrmix Corp. Sec. Litig., No. 97-cv-1289 (N.D. Cal., Nov. 23, 1999) (awarding
30Yo of Sl37 million fund); In re Nat'l Health Labs, Sec. Litig., Nos. 92-1949 8.
93-1694 (S.D. Cal. Aug. 15,1995) (Brooks, M.J.) (awarding 30o/o of a $64 million
fund); In re Immunex Sec. Litig., 864 F. Supp. 142 (W.D. Wash. 1994) (awarding
30o/o of $14 million fund)
Recent decisions in this Circuit have approved fee awards of 30% to 33o/o in
cases not nearly as groundbreaking, complex and time consuming as the Marcos
Litigation has been. Class counsel have achieved exceptional results and provided
extraordinary representation in this risky, complicated and long-lasting class action
and despite vigorous opposition by the Republic of the Philippines throughout the
litigation to collect on the judgment for the very deserving victirns of human rights
abuses. Litigating this case required unique skills and abilities. See Mauss v
22
NuVasive, lnc.,2078 WL 6421623 (S.D. Ca.2018) (awarding30%); Smith v. One
Nevada Credit (Jnion Eyeglasses, 2018 WL 4407251 (D. Nev. 2018) (awarding
30%); Beaver v. Tarsidia Hotels,2017 WL 4310707 (S.D. Ca.2017) (awarding
33%) ("District courts in this circuit have routinely awarded fees of one-third of
the common fund or higher after considering the particular facts and circumstances
of each case.")
The Ninth Circuit permits this Court to award counsel fees using either the
percentage of recovery method or lodestar method. Powers v. Eichen, supra., 229
F.3d at 1256. Whichever method is used, the Ninth Circuit requires this Court to
state its reasons for the award. "As long as the fee award is reasonable and the
district court adequately explains its determination by written order or in open
court, adopting the percentage approach is not an abuse of discretion." Id. af
1256. "The district court need not explain its decision in a written order of the
court, but such explanation must be in the record." Id. a|1.257.
A comprehensive review of fee awards in the Ninth Circuit shows that, on
average,83Yo of the courts approve lodestar multipliers in the range of 1 to 4. See
Stuart Logan et al., "Attorney Fee Awards in Common Fund Class Actions," 24
Class Action Rep. 167 (2003} In this litigation, which has continued for 33 years,
the collective lodestar, after first deducting fees awarded in two earlier interim
23
awards, is 521,072,947. Therefore, the 30o/o fee requested herein constitutes a
mere 19.6% of Counsels'overall net lodestar
VI Several Factors Justify An Interim Award of30o/o of the Settlement Fund for Fees and Costs
Class Counsel believe that an interim award of 30o/o of the amount of the
new Settlement, or $4,125,000, for fees is reasonable and justified by a number of
factors
A. The Result Achieved Is Extraordinary
The Judgment of almost $Z billion for the Class was an incredible
achievement. As described above, this was a hotly contested case involving the
first certified human rights class in judicial history. It is the first Judgment in a
human rights case against a former head of state. There was no precedent for the
case, and counsel had to devise innovative methods to prove both liability and
damages. At the time the Judgment was affirmed, it was the largest personal injury
award ever to be affirmed by the Circuit. As this Court commented on January 13,
20lI when making the first interim fee award:
... class counsel skillfully and diligently prosecuted this unique and
complex litigation over an extended period of time spanning myriadjurisdictions on several continents and in the face of heavy opposition
(Tr. I ll3l11 at l6-17)
The 2011 Judgrnent resulted in 16 years of persistent effort by Class Counsel to
hold the Estate, Imelda Marcos and Ferdinand Marcos, Jr. in contempt. The
24
Judgment of 5353.6 million is the largest contempt judgment in judicial history,
and was affirmed on appeal. That Judgment was critical in the Class' recoveries in
the New York Artwork litigation.
Assuming fees and costs are awarded as requested, there will be sufficient
funds for a third distribution to Class members of approximately $1,500. This
amount is significant given the low per capita income in the Philippines. This
distribution will be in addition to the May 2018 payout to 3,900 Class members of
far more money by the Republic pursuant to R.A. 10368.
No Class member was required to advance any costs in the litigation. The
role of virtually all Class members was simply to complete two claim forms. As
the Court itself found in the 1995 Judgment, the Marcoses had established a
sophisticated network of dummy corporations to secrete their assets. To this day,
the Marcoses have never voluntarily contributed any money to pay down the
Judgments. Any recovery on the Judgments is a feat of grit and determination,
especially in light of the blanket claims of the Republic to Marcos wealth and its
open - and heavily financed -- opposition to the hurnan rights victims recovering
any compensation on their Judgments. The Republic, whose PCGG employed 180
persons with multi-million dollar budgets to recover Marcos wealth, was itself
stymied in its recovery of Marcos assets. The United States government, with all
its resources, failed in its criminal RICO case against Mrs. Marcos.
25
It must also be remembered that satellite litigation in this case was
enonnous. Cases were filed on three continents. Each was vigorously contested
and usually resulted in appeals. Class Counsel spent 23 years attempting to
recover Marcos assets and initiated more than a dozen lawsuits to locate and
execute upon those assets against Swiss banks and other parties. Unlike the
normal antitrust or securities case that involves a single proceeding which usually
settles before trial, this litigation involved myriad lawsuits that extended well past
the entry of the 1995 Judgment
Weighing these circumstances, the result obtained is without equal in the
annals of law.
B. The Litigation Was Risky and Any Recovery Was Contingent
Numerous cases recognize that risk is an important factor in determining a
fair fee award. See, e.g., WPPSS, 19 F.3d at 1299-1301; Detroit v. Grinell Corp.,
495 F.2d 448,470 (2d Cir. 1974).
"It is an established practice in the private legal market to rewardattorneys for taking the risk of non-payment by paying them apremium over their normal hourly rates for winning contingencycases." Lí/ashington Public, 19 F.3d at 1299; see also Vizcaino,290F.3d at 1051. This provides the "necessary incentive" for attorneys tobring actions to protect individual rights and to enforce publicpolicies. In re "Agent Orange" Prod. Liab. Litig.,818 F.2d 226,236(2d Cir.l987).
Fischel v. Equitabte Life Assur. Soc. of U.5.,307 F .3d 997 , 1008 (9th Cir. 2002).
26
The financial risk to Class Counsel of no recovery was enorrnous. In 1986,
there was no precedent for this case. No class action had ever been brought on
behalf of alien human rights victims, much less certified. The case was dismissed
and on appeal in the Ninth Circuit for three years between 1986 and 1989. In 1996
the Ninth Circuit commented upon the result and difficulty of this case
The subject matter of this case is unusual. So is the size
of the judgment awarded to the plaintiffs. Some of theparties are prominent figures. The difficulty of enforcingthat judgment is also no doubt greater than usual, giventhe location of the assets and the uncooperativeness ofthe judgment debtor.
Hilao v. Estate of Marcos, 95 F.3d 848, 855 (9th Cir. 1996). In 2004, the Ninth
Circuit had occasion to again comment that "[c]ollection of that judgment proved
exceedingly difficult for the Hilao plaintiff class ...." Hilao v. Estate of Marcos,
393 F.3d 987,989 (9th Cir. 2004). This Court commented at the January 73,2011
hearing
... class counsel assumed significant risk that they would not be
compensated for this work given the unique and unprecedented nature
of this case and the signifìcant hurdles of recovery .... (Tr. 1l13l1l at
16)
Unlike securities and antitrust cases, lawyers were not tripping over each other to
file lawsuits against Marcos on behalf of indigent Filipino human rights victims.
In fact, no other class action was filed on behalf of the victims. Furthermore, the
27
unreimbursed costs in the case were substantial and had to be carried for two
decades.5
This case also involved significant physical danger and threats, a factor
which has been recognized by the Ninth Circuit in justif ing enhanced fee awards.
See Guam Soc. Of_Obstetricians & Gynecologìsts v. ADA, 100 F.3d 691,698 n.7
(9th Cir. 1996). Because the members of the Philippine military who carried out
Marcos' abuses were still in place after Marcos fled the Philippines, victims and
witnesses were afraid to come forward. There was constant danger that if
members of the military felt threatened they might retaliate. In April 1992, an
officer in the Philippine military stationed in Camp Aguinaldo told Lead Counsel
that he was being watched and was in danger. Shortly thereafter a presidential
assistant pointedly inquired as to what documentation might be introduced which
implicated the Republic's then President, Fidel Ramos. In January 1993 Messrs
Swift, Domingo and Saguisag were jeered and assaulted by a crowd of 500 persons
outside the Marcos' San Juan residence while trying to gain entrance to take Imelda
Marcos' deposition. On leaving, they were pelted with eggs and tomatoes. In
October 1994, Messrs. Swift and Domingo were enjoined by the Republic from
taking depositions of their clients in the Philippines. When this Court directed that
5 In August 2006, this Court permitted a parÍial reimbursement of expenses of$753,000. (ECF # 10495 6127106) Costs of 5847,962.56 were reimbursed on
January 13, 2011. (ECF # 10662) Costs of $191,840.71 were reimbursed on
October 22,2013. (ECF # 10711)
28
they continue, the Republic sought to hold them in contempt of court, and they
were required to defend themselves in a hearing. The Philippine Solicitor General
threatened during a television appearance to have Mr. Swift deported. A month
later the Philippine Senate introduced a measure to have Mr. Swift declared
persona non grata. In 1995, Mrs. Marcos fìled a criminal complaint against Mr.
Swift with the Ombudsman. In June 1997 a Marcos crowd of 50 confronted and
jeered Messrs. Swift and Domingo following a hearing in Makati regional court to
enforce this Court's Judgment. In September 1997 a Swiss bank filed a criminal
complaint against Mr. Swift in Zurich alleging that he was suing the bank in the
United States using false information
The complexities of the lawsuit and the risks plainly support a third interim
award of 30o/o of the new $14 million Settlement. Class Counsel have received
relatively little compensation ($3.2 million) during the course of the litigation in
relation to their historical lodestar (over $25 million) and have advanced
significant expenses ($ 1 .9 million) in prosecuting the action for the benefit of the
Class. Any fee or reimbursement has been substantially at risk for 33 years and
completely contingent upon obtaining a recovery for the Class
Class Counsel Were Skillful andDemonstrated Creativity and Ingenuity
The plaintiff Class benefited substantially from having some of the best
attorneys in the United States and the Philippines represent them. Mr. Swift has
C
29
over 45 years experience in litigation and has been lead or co-lead counsel in a host
of major cases including the German Holocaust Litigation (settled for $5 billion),
the Austrian Holocaust Litigation (setlled for just under $1 billion), the Swiss Bank
Holocaust Litígation (settled for 51.25 billion), the Austrian Bank Holocaust
Litigation (settled for $40 million), the Holocaust Insurance Litigation (settled for
S50 million), Mikes Train House Trqde Secret Litigation ($41 million judgment)
and the Amino Acid Lysine Litigation (settled for $50 million). In 1995 the
National Law Journal named him one of the top ten litigators nationally and in
2001it named him a finalist for its Trial Lawyer of the Year Award.
Ms. Broder is a seasoned litigator and a former president of the Hawaii State
Bar Association. Mr. Swift and Ms. Broder have been finalists in three separate
years for the Trial Lawyer of the Year Award given by the Public Justice
Foundation. The late Jon Van Dyke was a professor of international law at the
University of Hawaii Law School and the author of numerous books and law
review articles. Mr. Domingo and his Filipino co-counsel are highly regarded and
experienced litigators in Manila.
Philip Raible is a seasoned trial lawyer from New York City now in solo
practice. Jeff Glen, a mernber of Anderson, Kill & Olick, P.C., has more than 40
years experience specializingin litigation in New York. He is a frequent lecturer
on the New York CPLR
30
The ingenuity and creativity of counsel made the case successful. Class
Counsel developed and advocated new legal theories which were ultimately
adopted by this Court and the Court of Appeals. Class Counsel's use of Rule
23(bX1)(B) for class certification was novel but fit the circumstances perfectly.
Never before in American jurisprudence had there been a civil cause of action
brought for violation of the doctrine of command responsibility. The development
of random sampling and benchmark awards during the compensatory damage
phase of the case was innovative both for human rights and mass tort litigation.
Counsel supported this approach with facts and witnesses. Class Counsel's use of
Philippine law supplied the Plaintiff Class with a legal basis for its $1.2 billion
exemplary damage award that would have been unavailable on a punitive damages
theory under lJnited States law. Class Counsel's tenacious pursuit of a contempt
judgment against Imelda Marcos and Ferdinand R. Marcos, both in this Court and
the Court of Appeals, is the basis for the total of 523.75 million ($10M + $13.75M)
recovered for the Class in the New York artwork litigation.
Legal counsel who opposed Class Counsel were sophisticated and
resourceful with overwhelming financial resources Testirnony during the
contempt hearing in 1995 showed that counsel had received over $5 million for
their work. Messrs. Linn (deceased) and Bartko are among the best known trial
lawyers in the United States. Mr. Linn had successfully defènded Adnan
31
Khashoggi in the criminal RICO case against Khashoggi and Imelda Marcos tried
in New York in 1990. They were supported by u raft of legal talent in the
Philippines. In addition to the Marcos' own defense counsel, they were
consistently supported by able lawyers representing the Swiss banks, the Swiss
government, the Republic and the United States Justice Department with amicus
curiae briefs in this Court, the Court of Appeals and the Supreme Court. Both the
Philippine and Swiss governments delivered a total of almost a dozen diplomatic
notes to the United States Department of State complaining (unfairly) about the
actions of Class Counsel and this Court.
D. Time and Labor Involved
The time and labor involved since 1986 is 48, 190 hours, of which the net is
43,716 hours after applying a reduction for the first and second interim fee awards.
See Summary attached as Exhibit l. Specific detailed time and expense
compilations are attached as Exhibits 5 through 14. Spanning 10 years, the main
case entailed three trials and over a dozen appeals. See Síx (6) Mexican Workers,
904 F.2d at 131 1 (case that took 13 years) The collection proceedings, so far, have
taken 23 years and involve many satellite litigations, especially execution
proceedings. With the exception of the Marcos limo, each of the execution
proceedings was hotly contested. The Texas and Colorado litigation consumed 6
years; the Arelma litigation has spanned lB years already with no end in sight; the
32
Singapore litigation lasted 9 years old; the United Nations litigation is 14 years old;
and the Philippine enforcement proceedings have spanned 22 years
Class Counsel anticipate that they will spend many more hours in connection
with litigation over the Arelma funds. The third distribution from the common
fund to Class members in 2019 will entail several hundred hours of additional
trme
The number of hours devoted to the litigation demonstrates real efficiency
on the part of Class Counsel. The enormity of the litigation could easily have
resulted in twice as many hours being spent. The hours spent also do not reflect
the substantial work done by law firm staff members in the United States and the
Philippines for whom no hourly rate is charged. For example, Lead Counsel's
secretary has spent hundreds of hours since January 2011 updating the database.
In addition, the relatively modest hourly rate of counsel in the Philippines has kept
the lodestar low
B. Customary Fee in the Marketplace for Personal Injury Work
The customary contingency fee for attorneys in Hawaii and the Philippines
handling normal personal injury claims is 33 To 40Yo. Any class member, if he or
she could even find representation, would have had to pay this rate. This litigation
was hardly norrnal. As stated above, it involved legal complexities far beyond
33
what the normal personal injury attorney could handle, including litigation on three
continents.
F. The Requested Award Is Needed to Encourage Other Attorneysto Pursue Human Rights Cases
Although the bundle of offenses known as human rights violations are
among the most basic and precious to civilization, the development of a victim
compensation enforcement jurisprudence is in its incipiency. Major reasons for
this are that victims seldom can afford to hire attorneys, perpetrators flee the
jurisdiction, assets are concealed in safe-havens, and judgments are uncollectible.
Almost all of the other human rights cases that have been brought in the United
States, even when the verdicts have been in favor of the victims, have not led to
monetary compensation going to the victims.6 This means that attomeys have no
source of compensation for their time and no prospect of even recovering their
costs. The reality is that few lawyers or law firms are able to undertake the risk of
prosecuting a major case without any prospect of compensation for decades against
well-financed opposition. The most experienced lawyers will avoid physical
dangers, preferring to litigate safe and remunerative cases. Yet human rights
abuses - even since the filing of the instant lawsuit in 1986 - have been rampant
6 The only notable exception is the Holocaust Litigation in which the UnitedStates government played a key role in mediating settlements totaling $7.5 billion.See Eisenstat, Imperfect Justice, (Public Affairs 2003). ln Síderman de Blake v.
Republic of Argentina, 965 F.2d 699 (9'h Cir. 1992), the Argentine governmentpaid the damages.
34
and out of control: Bosnia, Kosova, Rwanda, Congo, East Timor, Afghanistan,
Iraq, Sudan, Syria, Libya - the list goes on and on
There is no shortage of attorneys pursuing securities and antitrust cases in
this country, which renders those laws selÊenforcing without large government
involvement. The reason is the promise of reasonable counsel fees. The
prominence of the instant case gives this Court the unique opportunity to
encourage other lawyers to pursue compensation for human rights victims
Furthermore, Class Counsel in this case need that encouragement to continue to
pursue collection of the Judgment.
VII. Class Counsel Are Entitled to Reimbursement of Their Expenses
Class Counsel have been reimbursed their expenses through June 30, 2013
and reimbursed for expenses related to the 2014 distribution of money to Class
members. Unreimbursed expenses incurred or paid from July I , 2013 through
December 31,2018 are detailed in Exhibits 1,5,9, 10, and 13. The expenses
incurred were necessary to the litigation, not extravagant, and reasonably related to
the interest of the class. See In re THC Fínancial Corp. Litigation, 86 F.R.D . 721,
740 (D.Hr le80)
Expenses are compensable in a common fund case when they are of the type
typically billed by attorneys to paying clients in the marketplace. In re Heritage
3s
Bond Litigation, 2005 WL 1 594403 *23 (C.D.Cal.); Harrís v. Marhoefer, 24 F.3d
16, 19 (9'h Cir. 1994)
VIII. Incentive Award to Jose Duran
Class Counsel request that this Court make an incentive award to plaintiff
Jose Duran in recognition of his assistance to the Class and Class Counsel. Mr
Duran, currently a resident of New York, is a named plaintiff in the original
Complaint filed in Hawaii in 1986. He was designated by this Court to be a class
representative in 1991. He furnished documents, met with Class Counsel on
several occasions, testified at deposition in the Philippines in 1991, and testified at
trial in Hawaii in 1992. By being a named plaintiff and class representative, he
was subject to personal risk of retaliation by the Philippine military which had
tortured him
In the New York artwork litigation, Duran is the sole plaintiff, class
representative and has been in regular communication with Class Counsel.7 He
reviewed the fîlings in that case, and approved the Stipulation and Order for this
settlement. As regards the Arelma funds, he is a plaintiff in the Swezey v. Merrill
Lynch action filed in New York County Supreme Court on June 18, 2013, and an
intervening party (on behalf of the Class) in the Washington DC forfeiture
7 Consistent with the law in this Circuit, Mr. Duran was not prornised any
incentive award. An incentive award was proposed by Class Counsel afier a
settlement was reached.
36
proceeding. Although it is not possible at this point in time to quantifu the number
of hours he has devoted to the overall Marcos litigation since 1986, it is
meaningful. In 2013, this Court awarded Mr. Duran an incentive fee of $20,000
for his work in connection with the settlement with the purchaser of the Water
Lily
It is within the Court's discretion whether to award an incentive fee to a
class representative and the appropriate amount of the fee. See In re Heritage
Bond Litigation, 2005 WL 1594403 *14 (C.D. Cal. 2005); Van Vranhen v. Atl.
Richfield Co.,90I F.Supp. 294,299 (N.D. Cal. 1995). Accordingly, Class Counsel
recommend that he receive an incentive award of 520,000 for his work leading to
the instant Settlement.
COI.{CLUSION
For the reasons set forth above, Class Counsel request the Court to make an
interim fee award of 30o/o of the $13.75 million settlement, or $4,125,000, together
with expenses in the amount of $71,181. In addition, Class Counsel request the
Court to render an incentive award of $20,000 to Jose Duran.
Respectful ly subrnitted,
Date: February 11,2019 /s/Robert A. SwiftRobert A. SwiftSherry P. BroderLead and Liaison Counsel
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