Judge questions attorney fees in $4.6 million swimming antitrust settlement

SAN FRANCISCO (CN) — A federal judge questioned Thursday the amount and reasons for millions of dollars in attorney fees in a class action settlement that includes $4.6 million in damages to professional swimmers who were threatened with penalties by a world swimming organization if they chose to compete in other swimming leagues.

Along with questions about the attorney fees, U.S. District Judge Jaqueline Scott Corley was perplexed to why the plaintiffs’ counsel, represented by Jeffrey Kessler with Winston & Strawn LLP, did not give a dollar amount of the settlement funds to one of the three distinct classes in the case.  

The class includes all injunctive relief for swimmers who may have been subject to a rule enforced by World Aquatics banning and penalizing professional swimmers who competed in unsanctioned events, including the International Swimming League.

The two other classes were outlined by year, for swimmers who were unable to compete in events in 2018 and in 2019, years when the ISL held international swimming events.

“I need to look at it as a whole,” Corley, a Joe Biden appointee, told Kessler about the damages and fees of the settlement. “That includes injunctive relief and cash payments.”

Beyond the funds, the injunctive relief for the three named plaintiffs and other top-tier swimmers who wanted to swim in other leagues and events, includes their swim times in those events be kept in World Aquatics’ official record books for qualification to the Olympics.

A jury trial earlier this year involving the ISL against World Aquatics found the organization responsible for antitrust behavior with regard to other leagues, but only awarded the ISL $1 in damages.

World Aquatics attorney Aaron Chiu said the organization’s approach to the settlement in the case against individual swimmers was it “wanted to get it done.” Chiu said he wanted the record to be clear about World Aquatics' enforcement of the rule that kept swimmers from entering competitions outside of the organization's approval.

“FINA said we are never going to enforce this against athletes,” Chiu said, referring to the Federation Internationale De Natation, World Aquatics' name at the time.  “The rules are beyond anything that was ever at issue. It hasn’t been on the books since July 2019.”

Corley and Kessler had a heated exchange when the subject of attorney fees was raised. The judge wanted plaintiffs’ counsel to give descriptions to the costs of litigation, such as hotel rooms, plane tickets and meals, to justify the previously agreed upon $3 million in attorney fees.

“The party requesting fees bears the burden ‘of submitting billing records to establish that the number of hours it requested are reasonable,’” she said in her preliminary settlement approval order.

But, Corley said, she hadn’t received any documentation that justified the $3 million amount.

“Didn’t I ask for detailed information?” she said.

Kessler said he “wasn’t trying to hide anything,” and did what he thought was required. He said he would submit additional information regarding the costs.

“Hopefully, get it done soon,” said Corley. “So the swimmers can get their payments.”