United States District Court, D. New Jersey, Camden Vicinage
IN RE BENICAR (OLMESARTAN) PRODUCTS LIABILITY LITIGATION
MEMORANDUM OPINION AND ORDER
Schneider United States Magistrate Judge
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”). 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
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.
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.
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.
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. The Court's
Orders set forth the approval process. 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.
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. 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.
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.
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).
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
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.” 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.
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