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In re Benicar (Olmesartan) Products Liability Litigation

United States District Court, D. New Jersey, Camden Vicinage

November 5, 2019



          Joel Schneider United States Magistrate Judge

         This Opinion addresses the only objection the Court received regarding the “Final [Allocation] Recommendation of the Benicar Common Benefit Committee.” (Hereinafter “FR”). Oral argument is not necessary. Fed.R.Civ.P.78; L.Civ.R.78.1. For the reasons to be discussed, the objections of Gerald J. Williams, Esquire and Mark R. Cuker, Esquire, are OVERRULED. (Hereinafter Williams and Cuker will be collectively referred to as “WC”).[1] The Court finds WC's allocation is fair, reasonable and equitable, and in accord with the Court Ordered directions given the Benicar Common Benefit Committee (“CBC”).


         This litigation concerns the blood pressure medication Olmesartan, sold by defendant Daichi Sankyo under the name Benicar, as well as Benicar HCT, Azor, and Tribenzor. Plaintiffs allege ingestion of Benicar causes sprue-like enteropathy and Benicar induced enteropathy which results in symptoms similar to celiac disease and other complications.

         After the JPML assigned this MDL to the Honorable Robert B. Kugler, the matter proceeded expeditiously to an eventual settlement. The first case management conference was held on April 29, 2015. Thereafter, members of plaintiffs' Steering and Executive Committees were appointed (May 20, 2015 Order, Doc. No. 18) and an Order regarding plaintiffs' counsels' “Time and Expense Reporting of Common Benefit Fees and Related Costs” was entered. [May 22, 2015 Order CMO No. 3, Doc. No. 21]. Over the course of the next 1½ - 2 years, the parties vigorously, yet professionally, litigated the case, including taking and defending scores of depositions and arguing numerous discovery disputes. Tens of millions of electronic documents were produced in discovery.

         In or about the summer of 2017, the parties reached an agreement in principle to settle. The settlement was announced in court on August 1, 2017. The settlement covers approximately 2000 filed cases and thousands of claimants. Due to the complexity of the settlement, and the need to allocate the agreed upon settlement sum, the settlement is not yet finalized. However, the Court is hopeful everything will be “wrapped up” before the end of the year.

         Now that the participants in the settlement process will soon be paid, it is time to turn to plaintiffs' attorneys' claim for common benefit fees and costs.[2] The Court's Orders set forth the approval process.[3] On February 26 and 27, 2019, CMO Nos. 41 and 41A appointed the members of the Common Benefit Committee (“CBC”) and generally described the role of the CBC. To assure transparency, objectivity and fairness, the Court made sure the CBC included a representative group of plaintiffs' attorneys and not just those with leadership positions and substantial common benefit claims. The Court specifically made sure the CBC included at least one member who was not making a claim for benefits. The CBC's Preliminary Recommendation was issued on June 13, 2019. After WC obtained leave of Court to serve a late objection, WC objected to the Preliminary Recommendation. After considering WC's objection, the CBC's Final Recommendation (“FR”) was issued. WC then filed its objections which are now before the Court. (Hereinafter “objections”). This Opinion only addresses WC's objections. Judge Kugler will decide whether to approve the CBC's Final Recommendation.

         As to WC, the Preliminary Allocation awarded it $100, 000 for 1125 submitted hours which resulted in an effective hourly rate of $89.00. After WC's objection to the Preliminary Allocation was considered, the CBC reduced WC's common benefit hours to 1066 but increased its award to $110, 000. This resulted in an effective hourly rate of $103.00.[4] WC complains the allocated sum and billing rate are too low compared to comparator firms. WC asks the Court to increase its billing rate to $272.00 per hour which results in an award of $290, 000.


         The first issue the Court needs to address is the standard of review to apply to WC's objections. In order to get to the crux of the matter sooner rather than later, and to avoid arguments not directly related to the merits of WC's objections, for present purposes only the Court will accept WC's position that the Court should review the CBC's Final Recommendation de novo. CMO No. 41B provides, “[t]he CBC shall perform a fair, equitable, and transparent evaluation of each CB Request[.]” Id. ¶3. The Court will undertake to examine if this was done as to WC.[5]

         Preliminarily, the Court notes that a pure lodestar analysis cannot be done. CMO 41B recognized this fact: “[w]hile time and expense records will be considered, the CBC and the Court recognize that a simple lodestar analysis is not practical or feasible, and that not all tasks are of equal value[.]” Id. ¶9. Further, it is universally recognized that when it comes to the allocation of common benefit funds, “not all types of work are created equal.” Haas v. Burlington County, C.A. No. 08-1102 (NLH/JS), 2019 WL 4648569, at *5 (D.N.J. Sept. 3, 2019)(citation and quotation omitted).

         WC's objections are premised on its belief that it was treated significantly less favorably than similarly situated firms. The Court disagrees and finds that WC was treated fairly and equitably. For this reason, the Court overrules WC's objections.

         WC's dispute primarily relates to its argument that the billing rate awarded for its document review work is too low. WC's argument, however, is based on the erroneous premise that its final assessment was grounded on the fact it only paid $80, 000 of its $105, 000 common benefit assessment. “The Committee's justification for [its] disparate award is that WCB paid only $80, 000 of a $105, 000 assessment.” Objections at 2. WC is wrong. As set out in detail in the CBC's Final Recommendation, the CBC considered the totality of the circumstance in its assessment. The CBC concluded that the type of work done by WC, the importance of the work, and the quality of the work were the most important allocation factors. Accord Haas, 2019 WL 4648569, at *5. This is evidenced by the fact the CBC concluded that the work done by firms other than WC was of a “higher level[] of complexity and importance.” FR at 32. In addition to evaluating the complexity and importance of WC's work, the CBC also considered the fact that “numerous [WC] entries … were not for the common benefit.” Id. The CBC also considered the fact that a significant number of WC's hours were spent reviewing documents in preparation for a “minor witness.”[6] Id. Thus, WC's argument that its allocated billing rate was only based on its delinquent payment is wrong. In addition, the Court disagrees with WC's assertion that, “[t]he recommended fee allocation to WCB is a glaring outlier, inconsistent with the award to other firms and irreconcilable with any purported methodology used.” Objections at 1. A close comparison to other firms shows that WC was treated fairly and equitably.

         WC's argument that it was treated unfairly is refuted when it is compared to comparator firms, Pearson and Taylor Martino. These two firms also did not pay their full assessments. Pearson was only awarded an hourly rate of $51.81, half of WC's rate, and did not object to its allocation. Although the hourly rate for the Taylor Martino firm is $132.00, approximately 20% higher than WC, this is justified because the firm “devoted significant time to the work-up of bellwether cases selected by the Court.” Id. As to WC, the CBC's analysis was consistent with CMO 41B which ...

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