One of the counsels for Betty Johnson, Bruce Jorgensen, is potentially a member of the NMI Retirement Fund’s defined benefit plan and thus may be barred from being class counsel, according to the Office of the Attorney General.
In the government’s objection to Jorgensen’s petition for attorney’s fees and costs, assistant attorney general Charles Brasington said that if the Bruce Jorgensen in the Fund’s records is in fact class counsel Jorgensen, then he is an inactive member of the defined benefit plan and is therefore a member of the class.
Jorgensen is seeking at least $18.6 million in attorney’s fees and costs.
In order to determine whether or not Jorgensen is a member of the class, Brasington said the Fund is willing to “file his contribution record (which includes social security number) under seal.”
Brasington attached to the government’s objection a declaration issued by Fund administrator Lillian M. Pangelinan last Wednesday, Sept. 18.
In it, Pangelinan disclosed that, as an employee of the Legislative Bureau, Jorgensen began contributing to the Fund in January 1996 up until August 1996.
Since then, Pangelinan said, Jorgensen’s membership status has been—and currently is—“inactive.”
She said Jorgensen became a Class 1 member of the Fund under Public Law 6-17, which provided that a Class 1 member with three years’ contributing service is entitled to “normal retirement” upon the age of 62.
Public Law 11-09 later amended Public Law 6-17, raising the normal retirement to 10 years of contributing member service, Pangelinan said.
To date, she said, Jorgensen has accumulated three months and 23 days of contributing member service.
Pangelinan said that if Public Law 6-17 applies to Jorgensen and he acquires another two years, eight months and five days of contributing member service, he will be entitled to “normal retirement” when he reaches the age of 62.
However, if Public Law 11-09 applies to Jorgensen and he acquires another nine years, eight months and five days of contributing member service, he will be entitled to “normal retirement” when he reaches the age of 62, Pangelinan said.
Pursuant to the statute, she said, Jorgensen’s contributions have been annually credited “regular interest.”
Pangelinan said if the court and the parties would like to confirm the identity of the Class 1 member named Bruce L. Jorgensen, the Fund will submit his contribution record under seal.
Brasington pointed out that courts that have considered the situation in which class counsel is a member of the class have either disqualified the counsel or assessed the propriety of an attorney serving in the dual capacity of class counsel and a class member on a case-by-case basis.
Brasington also took issue with Jorgensen’s petition for attorney’s fees and costs, saying they are “extremely problematic” and justify an outright denial or at least a substantial reduction in the hours and costs awarded.
Brasington noted, among other things, that Jorgensen submitted block-billing records that make determining the hours expended on given tasks difficult.
Block-billing refers to the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.
Brasington said while there is no per se ban on block billing, district courts in the Ninth Circuit have the power to reduce hours that are block billed.
Brasington also pointed out that some of Jorgensen’s enumerated expenses are so unreasonable as to call the credibility of the entire billing into question.
He added that Jorgensen’s alleged difficulties with his timekeeping software casts doubt on his record keeping as a whole.
The government lawyer cited among alleged excessive billings the 23.9 hours billed on Sept. 8, 2012.
“Even when Jorgensen bills 23.9 hours in a day, the sheer stress of working for such a long period takes a toll on the finished product,” Brasington said.