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Plaintiff in suit against Mission Hills cemetery contests lawyers' fees

Joseph Naiman frequently visited his mother's grave. Usually on Sunday mornings, often with other family members. They sat on the grass and swapped memories or enjoyed the quiet of Eden Memorial Park in Mission Hills.

But Naiman grew disgusted with the cemetery when he learned groundskeepers there were accused of damaging burial containers to maximize profits. The subsequent class action that recently yielded a $35-million settlement fund has only created a new target for resentment: the plaintiffs' lawyers.

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Last week, the 28-year-old spoke against finalizing the settlement that could affect 25,000 family members because it directs $23.5 million to the attorneys who filed the lawsuit.

"They can call it whatever they want — call it a windfall — but I believe it should be a windfall for the class and not the attorneys," Naiman said in a downtown Los Angeles courtroom. He contested the nearly 28,000 hours of work attorneys said had been put in on the case over the last four and a half years as well as their billing rates that ranged from $600 to $885 an hour.

Class actions are David and Goliath battles by nature, in which average consumers, en masse, wage a fight against a corporation. Such lawsuits are driven by lawyers who take significant financial risks, while a majority of the class is uninvolved. It's a way of holding corporations accountable and taking on cases that might not otherwise be litigated. Still, it often means eight-figure settlements that, after lawyers' fees, translate into individual payouts that are paltry in comparison.

The case against Eden Memorial's owner and operator Service Corporation International actually went to trial — highly unusual for class actions.

Much of the case rested on an internal memo written during a meeting with four Eden Memorial groundskeepers during an interment verification training. "They are told to make vaults/caskets fit regardless of the size of the grave. 'Making it fit' included breaking the vaults or caskets to allow room for the new interment," an administrative assistant wrote in her notes.

The employees also said some remains were thrown out after vaults were broken. The plaintiffs in the suit alleged the abuse took place over 25 years. After two weeks of testimony, the case was settled in February.

Los Angeles County Superior Court Judge Daniel Buckley praised the attorneys on both sides.

"I recognize that when you come from outside the legal profession that some of the hourly rates make you sit up a little bit," Buckley said Thursday before finalizing the settlement. "Knowing about the risk, let alone the issues in this case, a multiplier higher than what was used would have been reasonable."

An attorney for the Houston-based SCI said the company continues to deny any liability, but that the settlement was reasonable and fair.

According to the agreement, each of the nine plaintiffs who represented the class will receive $20,000. In addition, refunds will be available to those who have pre-purchased unused burial plots as well as those who wish to disinter their loved ones. Claims administration fees may also be taken out of the settlement. The fund will also be divided among those who decide to keep their plots and submit a claim by June 5. So far, about 5,000 claims have been submitted.

The lead attorney for the plaintiffs insisted it was more correct to call it an $80-million settlement. The alleged abuse at Eden Memorial had greatly lowered the value of the plots, Michael Avenatti said, but the corrective measures now required of the cemetery had restored their worth. An expert retained by his firm determined that, based on the resale rate for Eden's graves after the settlement, the total value of that relief was $45 million. Avenatti said that figure was a significant component of the settlement.

"The most important thing in the case was to ensure that this never happens again. We accomplished that," he said.

Naiman, an analyst who works in wealth management, spent days poring over the settlement documents on the class action website and feels the $45-million figure carries no real weight. According to court documents, one other member of the class made the same objection.

Adam Zimmerman, a professor at Loyola Law School who teaches mass tort law and complex litigation, said that quantifying intangible relief can be difficult.

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"It kind of reflects a problem with class action settlements in general," he said. "The plaintiffs, defendants and judge have an incentive to settle. The plaintiffs give a number and the defendants don't have much incentive to challenge it because they're not really paying that number. In litigation these would be highly contested issues. In a settlement they're not."

Although he is glad the case was litigated, Naiman said, the result doesn't change much for him.

Like most clients of Eden Memorial, he is Jewish and said he won't move his mother because disturbing the dead is against his beliefs. He also wants to keep the family together — his father has a pre-purchased plot and three of his grandparents as well as family friends are buried there. Besides, prices have escalated and he doubts a refund would cover a burial elsewhere. Naiman also doesn't want the cemetery to profit by selling newly emptied graves for inflated prices.

The settlement could be appealed, but Naiman waived his own right to do so when he was allowed to speak in court.

In a couple of weeks, he'll be back at the cemetery to visit his mother.

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