United States District Court, D. New Jersey
IN RE BENICAR® OLMESARTAN PRODUCTS LIABILITY LITIGATION This Document Applies to All Cases
Schneider Magistrate Judge
MEMORANDUM OPINION AND ORDER
B. KUGLER United States District Judge
September 2019, the Common Benefit Committee
[“CBC” or “Committee”] of the In
re Benicar® multi-district litigation
[“MDL”] submitted its Final Recommendation
[“Final”] of the awards of attorneys' fees
and costs for work and expenses done for the common benefit
of all MDL plaintiffs. This submission was made only after
the Committee's unanimous vote in favor of the awards
listed in the Final.
carefully reviewed the Final and find its proposed
distribution of attorneys' fees and costs to be
transparent, fair, reasonable, and consistent both across
plaintiffs' law firms and across the categories of common
work performed. Below is my reasoning.
Recommendation has been made in response to this Court's
Case Management Orders [“CMO”] discussed below.
The efforts relating to the common benefit process and
procedure in this MDL began with CMO 3 (ECF Doc.
21), which outlined to plaintiffs' attorneys
the standards for defining, reporting, verifying, and
recording various legal fees and expenses incurred for the
common benefit of all plaintiffs in this MDL. CMO
3 specifically tasked the Plaintiffs'
Executive Committee to appoint a Time and Expense Committee
who were tasked with ensuring plaintiffs' attorneys
properly complied with general process and procedure outlined
in CMO3 and with working with Co-Lead Counsel to
manage the litigation fund and administer the payment of the
expenses (not attorneys' fees) from that fund. In
addition, CMO 3 specifically tasked all
plaintiffs' counsel working on common benefit activities
to timely submit a report of their time and expense records
on a monthly basis.
35 (ECF Doc. No. 1145) originally
assessed 8 percent from the Gross Monetary Recovery
[“GMR”] as that amount reserved for the Common
Benefit Fund and apportioned 2% of the GMR to
costs and expenses and 6% of the GMR as
attorneys' fees. To be clear, the GMR is the total amount
paid by defendant in settlement or through litigation to any
client or plaintiff in the MDL.
40 changed the assessment percent to 9%
of the GMR and apportioned 3% of the GMR to costs
and expenses and 6.5% of the GMR as attorneys' fees.
41 and 41A (ECF Docs. 1220
and 1222) appointed the Common Benefit
Committeeand requested it to devise a plan for the
administration of requested and verified common benefit fees
41B (ECF Doc. 1223) adopted the plan of
execution for the CBC's evaluation and recommendations of
the verified common benefit fees and expenses. In this CMO,
the Court expressly retained jurisdiction and final approval
over the CBC's proposed awards. Also, CMO41B
expressed an important protection requiring the
supplementation of requested common benefit fees and costs.
That is, if a plaintiff's attorney had previously
underreported its common benefit fees and expenses, the
attorney could, as a kind of objection of its award, request
to the CBC a supplemental award, but only the Court could
approve such supplementation.
CMOs, in setting forth transparent and practicable guidance
to plaintiffs' attorneys, put into play a workably fair
process for requesting, verifying, and validating fees and
costs awards. Very important here has been the opportunity
for each plaintiff's attorney to object to the award and
gain Court review of the attorney's objections and basis.
Also important has been the Court's required approval of
any proposed supplementation of an award, which has worked to
curtail cronyism and preferential treatment. Thus, the
Recommendation process brought transparency, oversight, and
attention to not only the appearance but also the actual
execution of fair practices.
13 June 2019, the CBC had submitted to
the Court its Preliminary Recommendation
[“Preliminary”] for Common Benefit Awards and
Allocation. A comparison of the Preliminary with the Final
shows the awards have stayed substantially the same for each
requesting plaintiff's attorney with two differences. One
difference between the two recommendations is a pro
tanto additional award in the Final of about
$1300 given to each attorney. The pro
tanto award represents the CBC's “topping
off” of the 9% Recovery amount to each requesting
attorney. The second difference is the increase in hourly
rate for the single law firm that objected to its award. The
firm's hourly rate increased from about $89 in
the Preliminary to $103 in the Final.
increase in hourly rate relates to the protest of the single
law firm objecting to the Preliminary. Specifically, two
partners from a dissolved law firm objected to the
Preliminary while the third partner had confirmed her
acceptance of it. Because of the disagreement among the
former partners, the objection to the Preliminary was not
timely received by the Court. To extend as evenhanded an
approach to objection as possible, the Court recognized the
existence of the disagreement among the former partners
likely contributed to the objection delay and granted the
objecting attorneys an extension of time in which to submit
their arguments. ECF Doc. 1249. The attorneys then
timely filed their objection.
Magistrate Judge Schneider to review and opine on the
objection to the CBC Final because he has been the MDL
magistrate since consolidation and has first-hand knowledge
and experience with the issues arising here, including and in
particular those concerning the common benefit fund,
discovery and settlement negotiations as well as all CMOs. He
is the most qualified decision-maker to resolve the
5 November 2019, Magistrate Judge
Schneider issued his opinion regarding the objection to the
Final (ECF Doc. 1261), which he denied based on
several factors. First, he reviewed the Final de
novo as urged by the objecting attorneys (Id.
at 4) and found that the Final neither penalized
the objecting attorneys for not paying the full common
assessment amount nor undervalued the complexity of the
common benefit work they performed. Id. at
5. Importantly, Magistrate Judge Schneider
compared the objectors' awards with those of two firms
that had gotten a similarly-low hourly rate for similar kinds
of work. Thus, these two firms were comparator firms to the
objecting one. Magistrate Judge Schneider detailed the
reasons why the awards to the comparator firms and that to
the objecting attorneys showed a regularity and consistency
in the CBC's considerations. Id. at
10. Based on this comparison and ...