97-883 A
CRS Report for Congress
Received through the CRS Web
Attorneys' Fees in the State Tobacco Litigation
Cases
September 23, 1997
John Contrubis
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

---

---

Attorneys' Fees in the State Tobacco Litigation Cases
Summary
In the past few years, many states have filed complaints against the tobacco
industry in state court to recover Medicaid costs paid by the states to treat their
citizens for tobacco related illnesses. The states are also attempting to recover other
damages, such as punitive damages, against the tobacco industry. For various
reasons, the states have hired private attorneys to assist the state Attorneys General
in prosecuting these cases. In most cases, the retention of private counsel has
included a fee agreement specifying the amount of compensation that these attorneys
will receive for their services. These agreements are not uniform among the states,
but most tend to provide some form of contingency fee arrangement. Some of these
states have developed a sliding scale contingency fee schedule which varies with the
amount of time spent on the litigation and whether a trial has begun. This report
briefly summarizes the different fee agreements that the states have with private
counsel.

---

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
State Attorneys Fee Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
San Francisco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Connecticut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Montana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
New Hampshire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Puerto Rico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rhode Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
South Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
South Dakota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Utah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Vermont . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
West Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

---

---

Attorneys' Fees in the State Tobacco Litigation
Cases
Introduction
In the past few years, many states have filed complaints against the tobacco
industry in state court to recover Medicaid costs paid by the states to treat their
citizens for tobacco related illnesses. The states are also attempting to recover other
damages, such as punitive damages, against the tobacco industry. For various
reasons, the states have hired private attorneys to assist the state Attorneys General
in prosecuting these cases. In most cases, the retention of private counsel has
included a fee agreement specifying the amount of compensation that these attorneys
will receive for their services. These agreements are not uniform among the states,
but most tend to provide some form of contingency fee arrangement. Some of these
states have developed a sliding scale contingency fee schedule which varies with the
amount of time spent on the litigation and whether a trial has begun.
This report briefly summarizes the different fee agreements that the states have
arranged with private counsel. The following summaries are derived from analyzing
the actual fee agreements that the states have contracted with private counsel. In
order to be consistent, this report will refer to the private counsel hired by the states,
to pursue the tobacco litigation, as "Special Assistants." Although these Special
Assistants have been hired by the states, they are not considered state employees.
State Attorneys Fee Agreements
Alaska
If the June 22, 1997 Settlement-in-Principle is approved by Congress and the
President by June 1, 1998, the Special Assistant Attorneys General (hereinafter, the
"Special Assistants") shall seek compensation only from the attorneys fee pool to be
established by the defendants.
In the event the Settlement-in-Principle is not approved by June 1, 1998, the
Special Assistants shall receive: (1) 10% from any judgments entered into or any
settlement substantially completed during the first year from the date of contract
between the state and the Special Assistants; (2) 12% if the above occurs after the
first year, but before trial; and (3) 15% if the above occurs after trial begins.
However, the state reserves the right to petition any court before payment to
determine the reasonableness of attorney fees outlined in the contract.

---

CRS-2
In the event there are no recoveries of court awarded costs, the state shall seek
a legislative appropriation in order to reimburse costs advanced by the Special
Assistants. Otherwise, costs will be paid from the monies recovered by the state.
If the litigation is resolved by settlement for injunctive relief only, the state will
require that the defendants compensate the Special Assistants for costs and hourly
fees, including a reasonable multiplier of 1.5 to 2 times the Special Assistants'
lodestar.
Arizona
The state shall pay compensation from monies recovered by the state in the
tobacco litigation, whether by settlement or judgment. The Special Assistants will
be paid a contingency fee of 18% of the funds recovered plus the reasonable expenses
of litigation incurred by them. However, any attorneys fees that are awarded by the
court and collected pursuant to a state statutory scheme shall be subject to the
provisions of the state statutes.
Reimbursement for the cost and expenses of litigation is conditioned upon a
specific appropriation by the legislature.
In the event that the litigation is resolved by settlement involving only injunctive
relief, nonmonetary payment, the provision of goods and services, or any other "in-
kind" terms, the state agrees that the Special Assistants are entitled to a mutually
agreeable monetary settlement for attorneys fees and expenses and the state will not
settle the case unless the defendant's agree to pay said amounts.
Arkansas
The fee agreement is pending in the legislature.
California
The state has decided not to hire Special Assistants.
Los Angeles. The city has decided not to hire Special Assistants.
San Francisco. The repayment of costs and other expenses is contingent upon
a recovery being obtained. If no recovery is obtained, the city owes nothing for costs
and other expenses. Compensation to the Special Assistants shall include reasonable
disbursements in the litigation, plus 20% of any recovery collected up to $25
million, and 15% of any recovery in excess of the first $25 million.
Notwithstanding the above, the city shall pay no higher fee for
compensation than is paid by any other co-plaintiff that the Special Assistants
represent in the litigation or any other county and/or city that the Special Assistants
represent on a contingent fee basis.

---

CRS-3
In the event that the litigation is resolved by settlement involving only injunctive
relief, nonmonetary payment, the provision of goods and services, or any other "in-
kind" terms, the city agrees to seek, as part of any such settlement, a mutually
agreeable monetary settlement for attorneys fees and expenses.
Colorado
The state has decided not to hire Special Assistants.
Connecticut
The Special Assistants will be paid a fee of 25% of the funds recovered and
collected by the state as a result of the litigation, whether by way of settlement or
judgment, including any funds recovered as punitive damages. The Special
Assistants shall also be reimbursed for the reasonable disbursements incurred by
them in the course of litigation. Unless otherwise provided for, any and all
compensation and reimbursement due to the Special Assistants is contingent upon
a monetary recovery being obtained.
In the event that the litigation is resolved by settlement involving only the
provision of goods and services, or any other "in-kind" terms, the state agrees to seek,
as part of any such settlement, or judgment, compensation for the Special Assistants
equivalent to the 25% contingency fee and disbursements which the Special
Assistants would have otherwise been entitled to if the payment had been in cash.
If the Attorney General is unable to obtain such compensation, he shall petition the
legislature to appropriate such funds to compensate the Special Assistants.
In the event that the litigation is resolved by settlement involving only injunctive
relief, the Attorney General shall seek attorneys fees and disbursements from the
court or the defendants. If the Attorney General is unable to obtain such
compensation, he shall petition the legislature to appropriate such funds to
compensate the Special Assistants.
Florida
The state shall pay, from the total dollars recovered and collected, a 25%
contingency fee which shall be shared and distributed among the Special Assistants,
plus out-of-pocket costs incurred by the providers to the extent that the recovery
meets or exceeds total costs, awarded in any final judgments, court orders, or
negotiated settlement. The state also agrees to reimburse all costs incurred if a
recovery is obtained in an amount exceeding total costs. If recovery is obtained in
an amount less than the total of costs, the Special Assistants shall be entitled to
recover their costs up to, but not exceeding, the recovery actually obtained and the
state shall not be liable for the remaining unreimbursed costs.
Repayment of costs is contingent upon a recovery being obtained. If no
recovery is made, the state owes nothing for costs.

---

CRS-4
Georgia
The state does not have Special Assistants at this time.
Hawaii
The Special Assistants will receive a contingency fee of 20% of the total amount
recovered and received, less amounts recovered as costs for reimbursable expenses
whether by compromise, settlement, or judgment. This provision shall be superseded
by an Act of Congress. If no recovery is made no fee will be owed to the Special
Assistants.
The Special Assistants agree to advance the court costs and expenses of
litigation. In the event there is no recovery on this litigation, the Special Assistants
waive their right to reimbursement for costs and expenses.
Idaho
If the tobacco litigation is resolved through a "Global Settlement" within the
first 180 days following the retention of the Special Assistants, there is a flat fee of
$100,000. If between the 90th day and the 180th day the tobacco litigation is actively
litigated by the Special Assistants, then the flat fee is $250,000.
In the event any judgment is entered into and/or the tobacco litigation is
resolved through any type of settlement after the 180th day, the fee shall be as
follows: (a) 16.7% of the first $10 million received, less costs; (b) 13.3% of the
recovery, after payment of costs, above $10 million and less than or equal to $20
million; (c) 10% of the recovery, after payment of costs, above $20 million and less
than or equal to $30 million; (d) 6.7% of the recovery, after payment of costs, above
$30 million and less than or equal to $40 million; and (e) 3.3% of the recovery, after
payment of costs, above $40 million. However, the fee shall not be more than $9
million.
In the event any judgment is entered into and/or the tobacco litigation is
resolved through any type of settlement more than 18 months after the retention of
the Special Assistants, the fee shall be as follows: (a) 20% of the first $10 million
received, less costs; (b) 16% of the recovery, after payment of costs, above $10
million and less than or equal to $20 million; (c) 12% of the recovery, after payment
of costs, above $20 million and less than or equal to $30 million; (d) 8% of the
recovery, after payment of costs, above $30 million and less than or equal to $40
million; and (e) 4% of the recovery, after payment of costs, above $40 million.
However, the fee shall not be more than $18 million.
In the event any judgment is entered into and/or the tobacco litigation is
resolved through any type of settlement after trial begins, the fee shall be as follows:
(a) 25% of the first $10 million received, less costs; (b) 20% of the recovery, after
payment of costs, above $10 million and less than or equal to $20 million; (c) 15%
of the recovery, after payment of costs, above $20 million and less than or equal to
$30 million; (d) 10% of the recovery, after payment of costs, above $30 million and

---

CRS-5
less than or equal to $40 million; and (e) 5% of the recovery, after payment of costs,
above $40 million. However, the fee shall not be more than $27 million.
If a settlement agreement establishes a separate pool, fund or other arrangement
for payment of attorneys fees, the Special Assistants, at the option of the Attorney
General, shall be solely paid out of such pool, fund or other arrangement.
Reasonable costs advanced by the Special Assistants shall be paid from monies
received as a result of any judgment or settlement in favor of the state. If there is no
receipt of damages or other monetary relief, the Attorney General will seek
legislative appropriations for reimbursement of reasonable, approved advanced costs.
If the litigation is resolved by settlement for injunctive relief only, the state will
require that the defendants compensate the Special Assistants for costs and hourly
fees, including a reasonable multiplier.
Illinois
The compensation to be paid shall be contingent upon recovery of monies, at
law or in equity, whether by settlement or judgment. In no event shall the state be
obligated to pay more than it receives in any monetary recovery. The Special
Assistants shall receive 10% of the total recovery to the state, including, but not
limited to compensatory or punitive damages, restitution, civil penalties, interest, and
any amounts which may later be payable to the federal government under the
Medicaid program.
In the event of a recovery, the state shall reimburse the Special Assistants for
costs and disbursements advanced during the course of litigation, in an amount
approved by the Attorney General.
In the event that the litigation is resolved by settlement involving only injunctive
relief, nonmonetary payment, the provision of goods and services, or any other "in-
kind" terms, the Special Assistants will receive costs and hourly fees plus a
reasonable multiplier. In such an event, the state will not settle the case unless the
defendant's agree to pay said amounts.
Indiana
The compensation of the Special Assistants shall be contingent upon recovery
and collection of damages or a settlement distribution. The Special Assistants shall
receive 13.5% of the first $30 million of the net recovery and 10% of any remaining
amount of the net recovery. If a court awards attorneys fees and costs to the state, the
Special Assistants shall receive compensation which may include an hourly rate and
a contingency fee.
The Special Assistants shall bear the ultimate responsibility for any costs
advanced, subject to reimbursement upon recovery only.

---

CRS-6
Iowa
Compensation is to be paid contingent upon the state recovering and collecting
monies in the litigation, whether by settlement or otherwise. Ness Motley shall be
entitled to 6.25% of the first $100 million of the recovery, 5% of the next $100
million of recovery, and 2.5% of the balance in excess of $200 million, plus
reimbursement of disbursements. The Iowa Special Counsel, in the event of recovery
within 120 days of the date counsel was retained, shall share 9.375% of the first $200
million of the recovery and shall share 7.5% of the balance, plus reimbursement of
disbursements. In the event of recovery after the 120 day period, the Iowa Special
Counsel shall share 18.75% of the first $100 million of the recovery and shall share
15% of the next $100 million of the recovery and 7.5% of the balance, plus
reimbursement of disbursements.
In the event that the litigation is resolved by settlement involving only the
provision of goods and services, or any other "in-kind" terms, the state agrees to seek,
as part of any such settlement, compensation for the Special Assistants equivalent to
the contingency fee and expenses which the Special Assistants would have otherwise
been entitled to if the payment had been in cash.
Kansas
If the state receives funds by reason of settlement, legislation, judgment in
litigation or by any other form or process for resolution of the litigation, the "counsel
fee" shall be determined by the terms of any settlement agreement or as provided in
any other resolution process. However, the counsel fee shall not exceed 12.5%. If
no funds are recovered by the state, no fees are due counsel.
In the event the resolution of the tobacco litigation involves the provision of
goods, services or other "in-kind" payment, the state will seek compensation for the
Special Assistants equal to the contingency fee and expenses that they would have
been entitled to otherwise. If such compensation does not materialize, the Attorney
General will petition the legislature to appropriate funds to reasonably compensate
the Special Assistants for both fees and expenses.
If no recovery is made by the state, the Special Assistants will not hold the state
liable for reimbursement of costs, expenses and attorneys fees, but may submit a
claim to the legislature for such reimbursement.
Louisiana
The state does not have an agreement with its Special Assistants for attorneys
fees. The state has requested, in the Complaint, that the court award and/or set
appropriate attorneys fees.
Maine
The state is liable for compensation only if it receives monetary damages,
whether by settlement or judgment. In the event that the tobacco litigation is

---

CRS-7
resolved by settlement or Act of Congress within 6 months from retention of the
Special Assistants, the state shall pay expenses and compensate the Special
Assistants as follows: (a) $150 per hour for Partners and (b) $120 per hour for
Associates. However, compensation shall not exceed 13% of the total recovery to
the state. An Act of Congress shall supersede the terms of this agreement.
In the event that the tobacco litigation is resolved by settlement or Act of
Congress on a date more than 6 months, but less than 12 months from retention of
the Special Assistants, the state shall pay expenses and compensate the Special
Assistants as follows: (a) $150 per hour for Partners and (b) $120 per hour for
Associates plus 5% of the total recovery to the state. However, compensation shall
not exceed 13% of the amounts collected by the state. An Act of Congress shall
supersede the terms of this agreement.
If the state recovers monies from the tobacco litigation by settlement or
judgment other than as specified above, compensation is to be paid as follows: (a)
13% of the total recovery to the state; and (b) 50% of any incentive payments made
to the state for the collection of monies payable to the federal government. In the
event of recovery, the state shall also reimburse the Special Assistants for costs and
disbursements advanced during the course of the litigation.
Notwithstanding the above, the state shall pay no higher rate of compensation
than is paid by any other co-plaintiff that the Special Assistants represent in the
tobacco litigation.
In the event there is no recovery, or the recovery is less than enough to cover the
state's pro rata share of the costs and disbursements, the state shall not be responsible
for the deficiency of its pro rata share of costs and disbursements.
Maryland
The Special Assistants will be paid a fee of 25% of the recovered funds plus the
reasonable expenses of litigation incurred by them. All compensation due the Special
Assistants is contingent upon a recovery being obtained. If no recovery is made, the
state owes nothing to the Special Assistants.
Massachusetts
The sole contingency upon which compensation is to be paid is the recovery and
collection of monies in the litigation, whether by settlement or judgment.
Compensation shall be 25% of any recovery collected by the state plus reasonable
disbursements made in the litigation.
Michigan
Upon the successful recovery of damages in the event of settlement, trial or
appeal, the Attorney General shall petition the court for reasonable fees and expenses
to be awarded to the Special Assistants. The Special Assistants shall be reimbursed

---

CRS-8
for their costs and expenses as provided for under the Michigan Rules of Professional
Conduct.
Minnesota
The Special Assistants will be paid a fee of 25% of the total recovery to the
state. In addition, the state shall reimburse the Special Assistants for costs and
disbursements advanced during the course of litigation, in an amount to be approved
by the Attorney General. All compensation due the Special Assistants is contingent
upon a recovery being obtained.
Notwithstanding the above, the state shall pay no higher rate of compensation
than is paid by any other co-plaintiff that the Special Assistants represent in the
tobacco litigation.
Mississippi
Mississippi does not have a fee agreement with its Special Assistants. The state
appears to be relying on its claim for reasonable attorneys fees and costs of the
tobacco litigation, as set forth in its complaint.
Missouri
The state does not have Special Assistants at this time.
Montana
Compensation shall be contingent upon recovery and collection of damages or
monetary penalties, whether by settlement or judgment. Compensation will be as
follows: (a) if the tobacco litigation is resolved in a global settlement within the first
90 days of retaining the Special Assistants, their fee is based on an hourly rate or a
flat fee of $100,000, whichever is greater; (b) 10% of any recovery obtained, because
of any judgments entered and any settlement substantially completed (whether
through federal legislation or in any other manner) after the 90 day period, but during
365 days of retaining the Special Assistants; (c) 12% of any recovery obtained,
because of any judgments entered and any settlement substantially completed
(whether through federal legislation or in any other manner) after 365 days of
retaining the Special Assistants but before trial; and (d) 15% of any recovery
obtained, because of any judgments entered and any settlement substantially
completed (whether through federal legislation or in any other manner) after trial
begins. The state reserves the right to petition the court before payment to determine
the reasonableness of attorney fees outlined in the fee agreement. If as a result of a
global settlement a separate pool for attorneys fees is created, the Special Assistants
shall be paid solely out of that pool.
Reimbursement by the state for any costs advanced is subject to recoveries or
court awarded costs in the lawsuit. However, in the event there are no recoveries or
court awarded costs, the Attorney General will seek a legislative appropriation to
reimburse such costs.

---

CRS-9
In the event that the litigation is resolved by settlement involving only injunctive
relief, nonmonetary payment, the provision of goods and services, or any other "in-
kind" terms, the Special Assistants will receive costs and hourly fees plus a
reasonable multiplier. In such an event, the state will not settle the case unless the
defendants agree to pay said amounts.
Nevada
The state shall pay the Special Assistants on a contingency fee basis provided
that the state realizes a recovery. Upon recovery, the state shall pay the following:
(a) if the tobacco litigation is resolved in a global settlement within the first 90 days
after approval of the agreement retaining the Special Assistants, the fee is based on
an hourly rate or a flat fee of $100,000, whichever is greater; (b) 10% of any recovery
obtained, because of any judgments entered and any settlement substantially
completed (whether through federal legislation or in any other manner) after the 90
day period, but during 365 days of retaining the Special Assistants; (c) 12% of any
recovery obtained, because of any judgments entered and any settlement substantially
completed (whether through federal legislation or in any other manner) after 365 days
of retaining the Special Assistants but before trial; and (d) 15% of any recovery
obtained, because of any judgments entered and any settlement substantially
completed (whether through federal legislation or in any other manner) after trial
begins.
Regardless of the outcome of the case, the state shall be liable for reasonable
expenses and disbursements of the litigation. However, the Special Attorney must
apply to the court for the recovery of all costs and expenses.
New Hampshire
The state has not provided any information regarding Special Assistants.
New Jersey
The state has not provided any information regarding Special Assistants.
New Mexico
Upon the successful recovery of damages, the Attorney General agrees that the
Special Assistants shall be entitled to petition the court for reasonable fees, costs and
expenses to be awarded to the Special Assistants. The Special Assistants shall be
reimbursed for their costs and expenses as provided for under the New Mexico Rules
of Professional Conduct.
If there is federal legislation that resolves the litigation in whole or in part and
a legislative appropriation or authorization of funds to cover fees, costs and expenses
for the litigation, the Special Assistants shall petition the court for the recovery of
fees, costs and expenses for whatever part of the litigation that has been resolved by
such legislation.

---

CRS-10
New York
The fee agreement is pending approval.
Ohio
Fees shall not be paid to the Special Assistants unless a recovery is awarded and
collected by the state. The Special Assistants shall be paid as follows: (a) from April
28, 1997 to August 1, 1997, the Special Assistants shall be paid the greater amount
of $150,000 or $95 per hour; (b) after August 1, 1997, the Special Assistants shall
be paid 10% of any amount recovered; (c) from April 28, 1997 until December 31,
1997, and if the Attorney General on or before August 1, 1997, declares in writing
that a settlement in principal has been achieved, the Special Assistants shall be paid
the greater of $1 million or $200 per hour. If by December 31, 1997, no settlement
has been executed or ratified the Special Assistants shall be paid 10% of any amount
recovered. If the Attorney General, after issuing the above written statement of
settlement, requests the Special Assistants to continue to prosecute the tobacco
litigation, then the Special Assistants shall be paid 10% of any amount recovered.
The state reserves the right to petition the court before any payment to the Special
Assistants to determine the reasonableness of the fees and costs.
In the event that the litigation is resolved by settlement involving only injunctive
relief, nonmonetary payment, the provision of goods and services, or any other "in-
kind" terms, the Special Assistants shall receive costs and an hourly fee for legal
services provided, plus a reasonable multiplier.
Expenses incurred in the performance of the Special Assistants duties are only
reimbursable pursuant to terms specified by the parties.
Oklahoma
The Special Assistants shall receive a 15% contingency fee of the amount
recovered as a result of the tobacco litigation. If the state agrees to accept an "in-
kind" settlement, then it shall negotiate a mutually agreeable lawful settlement of
attorneys fees and expenses.
All costs advanced by the Special Assistants shall be deducted from any
recovery by the state and payable to the Special Assistants in addition to the above
compensation. If no recovery is made, neither the state nor the Attorney General
owes anything for costs, expenses or attorneys fees.
Oregon
The state has not provided any information regarding Special Assistants.
Pennsylvania
The Special Assistants shall be compensated from the proceeds of any recovery
in the tobacco litigation as follows:

---

CRS-11
(a) In the event the state receives a recovery in the litigation more than 2 years
after the date on which the Complaint is filed, the fee shall be as follows: (a) 20% of
the first $100 million recovered; (b) 15% from a recovery of $100 million to $400
million; (c) 10% from a recovery of $400 million to $500 million; and (d) no
additional fee based on a recovery in excess of $500 million.
(b) In the event the state receives a recovery in the litigation more than 1 year
but within 2 years after the date on which the Complaint was filed, the fee shall be
as follows: (a) 20% of the recovery up to $100 million; (b) 15% from a recovery of
$100 million to $300 million; and (c) no additional fee based on a recovery in excess
of $300 million.
(c) In the event the state receives a recovery in the litigation more than 6 months
but within 1 year after the date on which the Complaint was filed, the fee shall be as
follows: (a) 20% of the recovery up to $100 million; (b) 10% from a recovery of
$100 million to $150 million; and (c) no additional fee based on a recovery in excess
of $150 million.
(d) In the event the state receives a recovery in the litigation within 6 months
after the date on which the Complaint was filed, the fee shall be as follows: (a) 20%
of the recovery up to $50 million; and (b) no additional fee based on a recovery in
excess of $50 million.
(e)In the event the state receives a recovery from a settlement concluded within
1 year after the date on which the Complaint was filed, the Special Assistants shall
be paid the lesser of the contingent fee payable pursuant to (c) and (d) or a fee based
on time spent on the litigation and reported to the Attorney General pursuant to a rate
specified in the fee agreement.
The Attorney General shall agree to no settlement of the litigation that provides
only for non-monetary relief unless the settlement also provides reasonably for the
compensation of the Special Assistants by the defendants to the litigation.
The Special Assistants shall be reimbursed for all reasonable, actual, or ordinary
and necessary direct nonlabor costs incurred in the litigation. Reimbursement is
subject to the state receiving a recovery from which such reimbursement may be
made.
Puerto Rico
The state has not provided any information regarding Special Assistants.
Rhode Island
The state does not have Special Assistants at this time.

---

CRS-12
South Carolina
The state agrees to pay the Special Assistants a contingent fee which is to be set
by the court and which, in no instance shall exceed 25% of the gross amount
recovered or received, whether by compromise, settlement, judgment, or otherwise
or whether or not statutory ratification is required. However, if the litigation is
settled within 90 days of the date on which the Special Assistants were retained, the
court set fee may not exceed 15% of the gross amount.
The Special Assistants shall be reimbursed for court costs and expenses of
litigation if the state receives a recovery.
South Dakota
The state has not reached an agreement with its Special Assistants at this time.
Texas
The Special Assistants shall be paid a contingency fee of 15% of the total
recovery to the state. If the state agrees to accept an "in-kind" settlement, then the
state shall negotiate a mutually agreeable settlement of attorneys fees and expenses.
The repayment of costs to the Special Assistants is contingent upon a recovery
being obtained. If no recovery is made, the state owes nothing for costs.
Utah
The state agrees to pay the Special Assistants a contingent fee of 25% of the
gross amount recovered or received, whether by compromise, settlement, judgment,
or otherwise. If no recovery is received, the state will owe no fees.
In the event that recovery is limited to injunctive or nominal damages, and
attorney fees are awarded, the Special Assistants are entitled to retain the attorneys
fees to the extent the award is based on the services provided by them.
The repayment of costs to the Special Assistants is contingent upon a recovery
being obtained.
Vermont
Compensation shall be contingent upon recovery and collection of damages or
monetary penalties, whether by settlement or judgment. Compensation will be as
follows: (a) if the tobacco litigation is resolved in a global settlement within the first
180 days of retaining the Special Assistants, their fee will be a flat fee of $100,000,
which shall constitute payment in full for all fees and costs; (b) if the tobacco
litigation is resolved in a global settlement within the first 180 days of retaining the
Special Assistants, and between the 90th and 180th day the tobacco litigation is
actively litigated by the Special Assistants, their fee will be a flat fee of $200,000,
which shall constitute payment in full for all fees and costs; (c) 10% of any recovery

---

CRS-13
obtained, because of any judgments entered and any settlement substantially
completed (whether through federal legislation or in any other manner) during the
first 365 days after the expiration of the 180 day period; (d) 12% of any recovery
obtained, because of any judgments entered and any settlement substantially
completed (whether through federal legislation or in any other manner) after the 365
day period, above, but before trial; and (e) 15% of any recovery obtained, because of
any judgments entered and any settlement substantially completed (whether through
federal legislation or in any other manner) after trial begins. The state reserves the
right to petition the court before payment to determine the reasonableness of attorney
fees outlined in the fee agreement. If as a result of a global settlement a separate pool
for attorneys fees is created, the Special Assistants shall, at the option of the Attorney
General, be paid solely out of that pool.
Reimbursement for any reasonable costs advanced by the Special Assistants is:
(1) contingent upon receipt of damages or other monetary relief; and (2) subject to
preapproval as to reasonableness by the Attorney General. However, in the event
there is no receipt of damages or other monetary relief the Attorney General will seek
a legislative appropriation to reimburse such reasonable costs.
In the event that the litigation is resolved by settlement involving only injunctive
relief, nonmonetary payment, the provision of goods and services, or any other "in-
kind" terms, the Special Assistants will receive costs and hourly fees plus a
reasonable multiplier. In such an event, the state will not settle the case unless the
defendants agree to pay said amounts.
Washington
Compensation shall be contingent upon recovery and collection of damages. If
there is a recovery and collection of damages or penalties for the state, the amount
of compensation to the Special Assistants will be as follows: (a) 25% of all amounts
recovered from any source for the first $20 million; (b) 20% of all amounts recovered
from any source for the next $20 million; (c) 10% of all amounts recovered for the
next $60 million; (d) 3% of all amounts recovered above $100 million. 10% of the
total fees paid to the Luvera law firm will be contributed to a specified charity.
Reimbursement by the state for any costs advanced by the Special Assistants is
subject to recoveries or court awarded costs in the lawsuit or legislative
appropriation. In the event there is no receipt of penalties, damages or court awarded
attorney fees, the Attorney General will seek a legislative appropriation to reimburse
such costs.
In the event the resolution of the tobacco litigation involves the provision of
goods, services or other "in-kind" payment, the state will seek compensation for the
Special Assistants equal to the prevailing hourly rate and expenses that they would
have been entitled to otherwise. If such compensation does not materialize, the
Attorney General will petition the legislature to appropriate funds to reasonably
compensate the Special Assistants for both fees and expenses.

---

CRS-14
West Virginia
The Special Assistants have agreed to litigate this case pro bono.
Wisconsin
The Special Assistants shall receive a contingency fee of 10% for monies
recovered by the state plus reasonable disbursements, if recovered by settlement or
judgment entered into within 180 days of the commencement of litigation. If a
settlement or judgment is entered into between 180 and 360 days the contingency fee
is 15%. Thereafter, the contingency fee is 20%. If the Governor finds that such a
payment would be unreasonable, he may apply to the court to modify the amount of
compensation due the Special Assistants.

---