Attorney’s Fees in the Agent Orange Litigation: Modifying the Lodestar Analysis for Mass Tort Cases


In 1979, a group of veterans and their families sued numerous chemical companies and the United States government based on claims that they had been injured by the veterans’ exposure to Agent Orange and other herbicides during the Vietnam War. The class action litigation that grew out of this claim has been remarkable in many respects. Politically, it reawakened memories of the Vietnam War and became a focal point of efforts by Vietnam veterans to gain recognition for their sacrifices and suffering. In addition, plaintiffs’ unique claim for recovery gave rise to a number of notable legal issues. In the course of the Agent Orange litigation, a federal court rendered opinions on matters as diverse as the maintenance of a class action, the appropriate stat-ute of limitations for toxic tort claims, the requisite scientific proof of causation to support a claim, the reasonableness of a settlement, and the proper distribution of the assets of a settlement fund. Not the least important of the legal issues that arose was the question of appropriate attorneys’ fees in the context of a mass toxic tort claim.

Determining the appropriate attorneys’ fees in class actions is seldom an easy undertaking. Setting the attorneys’ fees in the Agent Orange case presented an especially challenging task that involved difficult factual determinations, complex legal analyses, and delicate policy choices. Furthermore, the attorneys’ fees question had to be resolved in an emotionally charged atmosphere created by an active and questioning class, a group of attorneys – many of whom had dedicated five years and considerable financial resources to the Agent Orange case –  and a public that was growing increasingly skeptical of large attorneys’ fees awards. Given this extraordinary setting, the Agent Orange case provides an excellent opportunity to study the application of the legal and policy considerations that govern a court’s determination of attorneys’ fees in complex class actions.

This article briefly examines federal court Chief Judge Jack B. Wein-stein’s attorneys’ fees opinion in the Agent Orange case. The article first de-scribes the historical basis of the court’s jurisdiction over the attorneys’ fees question and then reviews the customary approach that courts have used in ruling on attorneys’ fee requests in class actions. The remainder of the article describes Judge Weinstein’s attorneys’ fees decision in the Agent Orange case and discusses its value as a model for addressing attorneys’ fees questions in future mass tort class actions.

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