United States District Court, E.D. Pennsylvania
IN RE DIET DRUGS PHENTERMINE/ FENFLURAMINE/DEXFENFLURAMINE PRODUCTS LIABILITY LITIGATION
AMERICAN HOME PRODUCTS CORPORATION THIS DOCUMENT RELATES TO SHEILA BROWN, No. 99-20593
MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO.
the court is the petition of Levin Sedran & Berman
("Levin"), in its respective capacities as
Plaintiffs' Liaison Counsel ("PLC"), Co-Lead
Counsel for the Plaintiffs, and Class Counsel, for an award
of attorneys' fees and expense reimbursements relating to
work performed from January 1, 2016 through December 31,
2016. This court has previously awarded fees in Pretrial
Order ("PTO") Nos. 7763A, 8516, 8646, 8869, 9102,
9294, 9398, and 9465.
seeks an aggregate award of attorneys' fees in the amount
of $601, 400 from the AHP Settlement Trust (the
"Trust") in accordance with the stipulation
approved in PTO No. 92 97 between Wyeth and Class Counsel
that described, among other things, the terms of funding of
future awards and class-related fees.
Levin requests an award of attorneys' fees in the amount
of $601, 400 from the MDL 1203 Fee and Cost Account for
MDL-related services performed during 2016.
Levin incurred a total of $18, 519.58 in litigation expenses
during 2016. This court has already authorized payment of
$14, 548.61 of expenses from the MDL 1203 Fee and Cost
Account. Pursuant to PTO No. 7763, Levin seeks an order
directing the Trust to reimburse $7, 274.31 to the MDL 1203
Fee and Cost Account. Levin petitions for reimbursement of
the remaining $3, 970.97 in out-of-pocket expenses advanced
by Levin to be allocated for payment to Levin as $1, 985.48
from the Trust related to class action work and $1, 985.49
from the MDL 1203 Fee and Cost Account.
February 2017 the court-appointed auditor, Alan B. Winikur,
C.P.A., filed his Twelfth Audit Report setting forth the
results of his audit of the professional time and expenses
reported by counsel as eligible for payment or reimbursement
for the period from January 1, 2016 through December 31,
2016. In this Report Mr. Winikur states that one law firm,
Levin, has performed compensable "common benefit"
work for the class during 2016. He reports that during 2016,
Levin performed 955.5 hours of professional work. According
to Mr. Winikur, the lodestar value of this work was $601, 4
00. The total amount of reimbursable expenses incurred by
Levin during 2 016 was $18, 519.58. Mr. Winikur advises that
the court has previously-authorized payment of bona fide
common benefit expenses from the MDL Cost and Fee Account
during 2 016 in the total amount of $14, 54 8.61. The amount
of outstanding reimbursable expenses is $3, 970.97.
8, 2017 Mr. Winikur filed a supplement to the Twelfth Audit
Report. In the supplement Mr. Winikur clarified the breakdown
of the 955.5 hours of professional work performed by Levin
into two categories: (1) the number of hours that were spent
by Levin doing work related to the class action, and (2) the
number of hours that were spent by Levin doing work related
the MDL 1203. His report states that Levin performed 870.5 of
the 955.5 hours on class action work and the remaining 8 5
hours on MDL-related work.
previously noted that two funds exist for the purpose of
paying attorneys' fees: (1) the consolidated Fund A
Escrow Account to pay attorneys in connection with Fund A and
Fund B benefits related to the class action, and (2) the MDL
12 03 Fee and Cost Account to pay for attorneys' fees and
costs associated with the work of the Plaintiffs'
Management Committee ("PMC"), PLC, and attorneys
authorized by those two groups to work on behalf of the
plaintiffs in the MDL 1203 or coordinated state proceedings.
See In re Diet Drugs Prods. Liab. Litig., 2010 WL
3292787, at *2 (E.D. Pa. Aug. 19, 2010). The consolidated
Fund A Escrow Account was created with an initial payment by
Wyeth. As of January 31, 2014 the consolidated Fund A Escrow
Account had a total balance of $1, 790.92. On June 17, 2014
this court authorized the termination of the consolidated
Fund A Escrow Account and directed the Escrow Agent for that
account to pay the funds therein to the Trust. See In re
Diet Drugs Prods. Liab. Litig., 2014 WL 2767182, at *8
(E.D. Pa. June 17, 2014).
the termination of the consolidated Fund A Escrow Account,
the court approved on June 18, 2014 the "Stipulation
between Wyeth and Class Counsel with Regard to the Funding of
Future Awards of Class-Related Fees" in PTO No. 9297.
This PTO ordered Wyeth to provide funding for payments of up
to $4 million of class counsel fees in connection with class
action work. As of June 29, 2017, $2, 930, 125 has been paid
by Wyeth and $1, 069, 875 remains available to fund the
payment of attorneys' fees for class action related work.
1203 Fee and Cost Account contains assessments of a
percentage of any recoveries by plaintiffs whose actions are
transferred to the MDL 12 03 action and of recoveries by
plaintiffs in the coordinated state proceedings. As of
December 22, 2016 the MDL 1203 Fee and Cost Account had a
balance of $2, 629, 545.92. This balance represents the
addition of $96, 204 in new assessments deposited into the
account and the dispersal of $1, 862, 750 in claim payments
made during 2016.
there have been no objections to this petition, we must
conduct a "thorough judicial review" of the
requested fee award as "required in all class action
settlements." In re Gen. Motors Corp. Pick-Up Truck
Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 819
(3d Cir. 1995). We have previously noted the standard of
review that our Court of Appeals requires a district court to
employ, which includes consideration of the following ten
(1) the size of the fund created and the number of
beneficiaries, (2) the presence or absence of substantial
objections by members of the class to the settlement terms
and/or fees requested by counsel, (3) the skill and
efficiency of the attorneys involved, (4) the complexity and
duration of the litigation, (5) the risk of nonpayment, (6)
the amount of time devoted to the case by plaintiffs'
counsel, (7) the awards in similar cases, (8) the value of
benefits attributable to the efforts of class counsel
relative to the efforts of other groups, such as government
agencies conducting investigations, (9) the percentage fee
that would have been negotiated had the case been subject to
a private contingent fee arrangement at the time counsel was
retained, and (10) any innovative terms of settlement.
See, e.g., In re Diet Drugs Prods.
Liab. Litig., 2013 WL 3326480, at *3 (E.D. Pa. June 28,
2013) (citing Gunter v. Ridgewood Energy Corp., 223
F.3d 190, 195 (3d Cir. 2000)). We do not apply these factors
in a "formulaic way" and recognize that one factor
may outweigh others. Id. Our Court of Appeals has
emphasized that "what is important is that the district
court evaluate what class counsel actually did and how it
benefitted the class." In re AT&T Corp. Sec.
Litig., 455 F.3d 160, 165-66 (3d Cir. 2006) .
SIZE OF FUND CREATED AND NUMBER OF PERSONS
previously noted the size of the Class Action Settlement Fund
to be approximately $6.44 billion. In re Diet
Drugs Prods. Liab. Litig., 553 F.Supp.2d 442, 472
(E.D. Pa. 2008). During 2016, Class Members received benefits
totaling $8, 353, 167 pursuant to the terms of the Settlement
total includes the following awards:
• seventeen Class Members received Matrix payments
totaling $5, 854, 869; and
• the Settlement Fund has paid a total of $2, 498, 298
to administer the terms of the Settlement Agreement to
provide settlement benefits to Class Members.
previously recognized the "immense size of the Fund
created and the thousands of people" who have benefitted
since this court first approved the Settlement Agreement on
August 28, 2000. Diet Drugs, 2010 WL 3292787, at *9.
This factor weighs in favor of granting Levin a fee award for
its class action work.
PRESENCE OR ABSENCE OF SUBSTANTIAL OBJECTIONS
next consider the "presence or absence of substantial
objections by members of the class to the settlement terms
and/or fees requested by counsel." Gunter, 223
F.3d at 195 n.l. Less than thirty objections were filed in
response to the 2007 petition for fees and costs. Diet
Drugs, 553 F.Supp.2d at 473. All of these objections
were overruled by this court. Id. Several of our
orders were appealed to the Court of Appeals for the Third
Circuit and affirmed, while other appeals were discontinued
with prejudice. In re Diet Drugs Prods. Liab.
Litig., 93 F.App'x 338 (3d Cir. 2004); In re
Diet Drugs Prods. Liab. Litig., 385 F.3d 386 (3d Cir.
2004); In re Diet Drugs Prods. Liab. Litig., 226
F.R.D. 498 (E.D. Pa. ...