United States District Court, E.D. Pennsylvania
IN RE DIET DRUGS PHENTERMINE/ FENFLURAMINE/DEXFENFLURAMINE PRODUCTS LIABILITY LITIGATION
AMERICAN HOME PRODUCTS CORPORATION MDL THIS DOCUMENT RELATES TO SHEILA BROWN, et al.
MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER
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, 2017 through December 31,
2017. This court has previously awarded fees in Pretrial
Order ("PTO") Nos. 2262, 2859, 7763A, 8516, 8646,
8869, 9102, 9294, 9398, 9465, and 9490.
seeks an aggregate award of attorneys' fees in the amount
of $295, 656.25 from the AHP Settlement Trust (the
"Trust") in accordance with the stipulation
approved in PTO No. 9297 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 $18, 462.50 from the MDL 1203 Fee and Cost Account for
MDL-related services performed during 2017.
Levin incurred a total of $15, 842.17 in litigation expenses
during 2017. This court has already authorized payment of
$15, 377.14 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, 688.57 to the MDL 1203
Fee and Cost Account. Levin petitions for reimbursement of
the remaining $465.03 in out-of-pocket expenses advanced by
Levin to be allocated for payment to Levin as follows:
$232.51 from the Trust related to class action work and
$232.52 from the MDL 1203 Fee and Cost Account.
March 2018 the court-appointed auditor, Alan B. Winikur,
C.P.A., filed his Thirteenth 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, 2017 through December 31,
2017. In this Report Mr. Winikur states that one law firm,
Levin, has performed compensable "common benefit"
work for the class during 2017. He reports that during 2017,
Levin performed 527.75 hours of professional work. According
to Mr. Winikur, the lodestar value of this work was $314,
118.75. The Audit Report explained that the 527.75 hours of
professional work performed by Levin was broken down 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 502.25 of the
527.75 hours on class action work and the remaining 25.5
hours on MDL-related work. The Audit Report states that the
lodestar amount for the class action work equals $295, 656.25
of the total lodestar value of $314, 118.75, and the lodestar
amount for the MDL work equals the remaining $18, 462.50 of
the total lodestar.
total amount of reimbursable expenses incurred by Levin
during 2017 was $15, 842.17. The court has previously
authorized payment of bona fide common benefit expenses from
the MDL Cost and Fee Account during 2 017 in the total amount
of $15, 377.14. The amount of outstanding reimbursable
expenses is $465.03.
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 25, 2018, $3, 469, 700 has been paid
by Wyeth and $530, 300 remains available to fund the payment
of attorneys' fees for class action related work.
12 03 Fee and Cost Account contains assessments of a
percentage of any recoveries by plaintiffs whose actions are
transferred to the MDL 1203 action and of recoveries
by-plaintiffs in the coordinated state proceedings. As of
December 31, 2017, the MDL 1203 Fee and Cost Account had a
balance of $22, 534, 086. This balance represents the
addition of $1, 600 in new assessments deposited into the
account and the dispersal of $4 0, 000 in claim payments made
during 2017. 
have been no objections to this petition. Nonetheless, 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 factors:
(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.
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 2017, Class Members received
benefits totaling $7, 596, 929 pursuant to the terms of the
Settlement Agreement. This total includes the following
• fourteen Class Members received Matrix payments
totaling approximately $5, 580, 565; and
• the Settlement Fund has paid a total of $2, 016, 364
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.1. 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 Fed.Appx. 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. 2005). No. ...