It is referred to as the "granddaddy of all insurance class actions" and over the past three years the still-incomplete legal action has sucked up $100 million in fees and a further $20m for out-of-pocket expenses just on the plaintiff side of the courtroom.

Bermuda's reinsurance giant Ace Limited has paid $89m in settlements and paybacks, Zurich Financial Services has made a private settlement of approximately $150m, broker AJ Gallagher is about to secure a $38m settlement and a further $1.8 billion has been settled by others via various US state attorney generals and insurance commissioners, a Bermuda conference heard.

But there are between 40 and 50 other insurers, brokers and agents still involved in the multi-district litigation in the US initially sparked by concerns about the use of contingent commissions between insurers and brokers.

An opportunity to hear directly from some of those involved in the mammoth litigation that former New York attorney general Elliot Spitzer originally-led, and is currently being played out in New Jersey courtrooms, came when counsel from both sides of the bar in the case formed a panel on the second day of the International Reinsurance Summit in Hamilton.

And one view given was that, in hindsight, it would have been smarter to have pursued individual insurers and brokers rather than roll everything up into a bulging multi-district litigation.

Paying contingent commissions — fees based on volume and profitability for insurance business generated — to brokers is not of itself illegal, but the means used to win commissions and allegations of bid-rigging and anti-trust practices brought related multiple class actions from across the US in the latter half of 2004.

John Stoia Jr, a partner with Lerach, Coughlin Stoia Geller Rudman & Robbins, is acting for plaintiffs in the litigation.

Outlining how the case reached its present position he said: "In early 2004 we began an investigation into the contingent commission practices. We had been notified by numerous sources of alleged illegal activities occurring, not just steering in return from contingent commissions but also bid-rigging, fraud, vacations, jets - the whole works."

Other investigations began concurrently, one was started by the then AG of New York Mr. Spitzer.

"In October 2004 Spitzer filed his complaint and had Marsh & McLellan up against the wall, all hell broke loose. There were probably 30 plus private actions filed after that and other states had woken up, so all the states opened up investigations across the US," explained Mr. Stoia.

The case is now under the charge of Judge Garrett E. Brown in the eastern district of New Jersey, involving multiple dozens of companies.

"This multi-district litigation only rivals one other case my office has handled and that is the Enron case. We have to date 80 million pages of documents, in excess of 100 defendants. When you sue 150-plus insurance companies and brokers they tend to fight very vigorously, they have a lot of capital and don't take allegations we've laid against them very lightly."

As things stand the anti-trust and bid-rigging claims alleged against the companies were thrown out by Judge Brown, but he gave the plaintiffs the opportunity to amend their anti-trust and RICO (Racketeer Influenced and Corrupt Organisations) complaint and resubmit, which was done.

With a light-hearted acknowledgement towards fellow panellists Mark Horning, of Steptoe & Johnson, and Deirdre Johnson, of LeBoeuf, Lamb, Greene & MacRae, Mr. Stoia said: "The defendants I find it hard to believe are here, and should be working on the motion to dismiss which is due in the next two weeks. Our reply to that will be in July. We should have a decision whether we have pled our RICO and anti-trust claims by Labour Day I suspect."

The fourth member of the panel was John Woods, of Hunton & Williams, who is also involved on the plaintiff side of the litigation.

He said that, with hindsight, it would probably have been wiser for complaints to have been levelled at individual insurers and brokers, one by one, rather than the creation of the multi-district litigation that emerged.

"This was a broker-centred conspiracy. What the plaintiffs did was go after the entire industry and, in at least one instance, described the industry as a market for risk. The broader the conspiracy they could allege the deeper the pockets at the table.

"In hindsight, an insurer by insurer approach may have been a more effective way for them to have gone because this is a very big litigation, it is very hard to control," he said.

"They may have wanted to start off with a Marsh-centred conspiracy or an AON-centred conspiracy because it is more manageable. It was so big it is going to be hard to show the horizontal agreement between the insurers, or half the acknowledgement between the insurers to survive on the anti-trust complaints."

Hazarding a guess at what Judge Brown will rule, Mr. Stoia said there motions might be converted for summary judgements and they may be sent back to various trial courts around the country "and that is probably 25 to 30 different jurisdictions."

From the other side of the litigation, Mr Horning said: "It's very likely that Judge Brown will dismiss the RICO claims.

"Under RICO you have to plead something that is called an enterprise and that doesn't have to be a formal organisation but has to be 'an association in fact' both judges found that the plaintiffs had not adequately pled an enterprise.

'There is a split over whether an enterprise needs to have some structure or organisation.

"The second issue is the anti-trust complaints, the complainants have not only targeted against the companies that have allegedly engaged in bid-rigging they have alleged a much broader conspiracy to allocate markets and customs. That the brokers steered business from the non-favoured insurers to the favoured insurers, they guaranteed the favoured insurer they would retain their incumbent customers, it really was an agreement not to compete for one another's customers.

"They have alleged a whole bunch of vertical contingent commission agreements that are perfectly lawful and from that try to have inference of a horizontal conspiracy to allocate customers."

Mr. Horning believes it likely the anti-trust claims will be dismissed by Judge Brown.