Levin builds reputation for pursuing class-action suits

Attorney Irwin Levin stood in a courtroom years ago for a pretrial conference when a colleague began to ridicule a rival firm's slogan. Overhearing the diatribe, the judge asked Levin whether his law office had a mantra.

Without hesitation, he quipped: "We're going to kick your ass." The room erupted in laughter.

While Levin, 51, might have answered in jest, the managing partner of Cohen & Malad LLP indeed has built a national reputation for bloodying the noses of large defendants.

The firm's niche is representing individuals in class-action lawsuits, often against corporate heavyweights. His targets have included some of the city's best-known companies, from Indianapolis Power & Light to ITT Educational Services.

"One thing defendants know in a case is that we're not going away," Levin said. "We're like the Energizer bunny. There is no other way to do it."

This summer, Levin has been especially active, suing Guidant Corp. after it disclosed flaws with its implantable defibrillators, For- mula One after most of its drivers failed to compete in the U.S. Grand Prix here, and Irving Materials Inc. after it pleaded guilty to price-fixing in the concrete market.

In each case, the 22-attorney firm filed the suits less than 48 hours after the bad news broke. That speed could help position the firm to serve as lead counsel when a judge consolidates similar cases.

But can an attorney know so quickly whether a case has merit? Critics of class-action attorneys charge they rush to court hoping to fatten their wallets, with little regard for the underlying facts.

In effect, ITT Educational Services alleged the same thing in a brief it filed last fall. Cohen & Malad is serving as lead counsel in a suit filed after federal investigators raided company offices in February 2004.

"A host of plaintiffs and their lawyers rushed to sue ITT alleging that ITT has violated the law in every area under investigation and that somehow this investigation translates into massive financial fraud," ITT attorneys wrote.

They added: "Plaintiffs' tactic is used to try and mask the deficiencies in the complaint by giving the appearance of substance when, in fact, there is none."

Levin insisted he's only attracted to cases he believes have merit, and even an attorney who opposed him in a handful of instances agrees.

"When Irwin files a class action," said Kevin Schiferl, a product-liability attorney at Locke Reynolds LLP, "there is an instant air of legitimacy to it, because I don't think he takes frivolous class actions."

Prominent practice

Levin's first experience in class-action law area dates to 1983, when he represented a doctor who had lost money in a tax shelter. The case was later expanded to a class action and settled for $3 million.

He since has become one of the top class-action attorneys nationally, said Mark Maddox, a securities lawyer and partner at Maddox Hargett & Caruso PC who helped Levin broker a $120 million settlement a decade ago in a Louisiana securities case.

His largest settlement came six years later, when he helped broker a $1.3 billion pact with Swiss banks on behalf of Holocaust survivors. Levin, who is Jewish, said it was also the most personally rewarding.

It's been quite an ascent for the Indianapolis native, whose mother was a homemaker and father owned a pest-control business. Levin worked his way through the Indiana University School of Law in Indianapolis, serving as a bailiff in Marion Circuit Court.

He described the experience as "wonderful" because he got to see some of the best and worst attorneys in action.

He earned his law degree in 1978 and served a year as the court's commissioner, taking some of the caseload from Judge Patrick Endsley. In that role, he found himself presiding over a case brought by Rev. Greg Dixon, who was seeking an injunction to stop a concert in Garfield Park.

The show featured Nick Gilder, who had scored a No. 1 hit with "Hot Child in the City." As a 24-year-old with a bushy beard and long locks, Levin rejected the notion the music was "evil" and let the performance proceed.

After serving as commissioner for a year, Levin applied at a prominent law firm but didn't get an interview. He's now grateful. That's because in 1979 former Attorney General John J. Dillon hired him at Dillon Hardeman Cohen & Malad, the forerunner to his current firm.

Fees debated

Business interests have long cast arrows at class-action attorneys, saying they clog the courts with dubious suits, then reach settlements that include large attorney's fees.

In February, Republican President George Bush signed a reform measure that will funnel more cases into federal courts, where they may face greater procedural obstacles than in state courts. Bush called the measure part of his campaign aimed at "ending the lawsuit culture in our country."

But Levin offers no apologies for collecting sizable fees. He pointed out that he and his partners assume a financial risk every time they file a case, since they're paid only if they prevail or reach a settlement. In addition, the court must approve the fees.

And Cohen & Malad sometimes comes up empty-handed. Last month, Judge Larry McKinney of U.S. District Court in Indianapolis dismissed the final claims in a shareholder lawsuit stemming from Virginia-based AES Corp.'s $3 billion purchase of IPALCO Enterprises Inc. four years ago.

In 2002, the firm failed to win class-action status for a lawsuit charging Bridgestone/Firestone Inc. manufactured faulty tires. To this day, Levin insists the appeals court was wrong.

In other cases, however, the firm hit pay dirt. While Levin declined to discuss fees his firm has earned, Hamilton Superior Court records show it received $2 million under a $24 million settlement struck in October with Trinity Homes LLC. The firm represented homeowners suing Trinity for mold and moisture problems.

Although fees in that case represented less than 10 percent of the settlement, it's not uncommon for them to top 20 percent.

That's what upsets State Rep. Jerry Torr, R-Carmel, a member of the House Judiciary Committee, who contends class actions benefit lawyers more than consumers.

"There are, unfortunately, a few bottom feeders out there who use this type of process to make themselves millions and millions of dollars in profits," according to Torr, who wasn't speaking specifically about Cohen & Malad. "They can literally break some companies."

Levin's response: Class actions are the only means for individuals to pursue claims that are too small to bring alone. He said seeking $10 each for 500,000 people is no different from a company suing another for $5 million.

Further, he said, because he's paid only if he collects for his client, he takes only cases he believes in. In the Holocaust case, he received no compensation for five years before reaching the settlement.

"He really understands and associates with the underdog," said Michael Hyman, a Chicago lawyer who has argued cases with Levin. "In these types of cases, you are taking on corporate America and the best attorneys in the country. You have to meet their wits with your wits every day, and Irwin does it very well."

Which helps explain the company's real slogan, "Power to your voice." Levin said he feeds off the challenge of representing the common man against corporate titans.

"When I'm inside the battlefield," he said, "I am as aggressive as I need to be."