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In re Guidant Corp. Implantable Defibrillators Products Liability Litigation: US District Court : CIVIL PROCEDURE | FEES - multi-district litigation (MDL) fee awards

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re: GUIDANT CORP. IMPLANTABLE
DEFIBRILLATORS PRODUCTS
LIABILITY LITIGATION
MDL No. 05-1708 (DWF/AJB)
This Document Relates to All Actions
MEMORANDUM OPINION AND
ORDER REGARDING COMMON
BENEFIT ATTORNEY FEE
ALLOCATION
In February 2008, the Court appointed a Common Benefit Attorney Fee and Cost
Committee (CBAFCC) for the purpose of recommending to the Court the specific
allocation of attorney fees and costs among all counsel entitled to share in the Common
Benefit Attorney Fee Fund and all counsel and/or parties entitled to share in the Common
Cost Fund. (Doc. No. 2603.) 1 In April 2008, the CBAFCC submitted the Report of the
Common Benefit Attorney Fee and Cost Committee (the CBAFCC Report).
(Doc. No. 2792-2.) Currently before the Court are the CBAFCC Report and the
Objections filed by twenty-one firms in response to the CBAFCC Report.
Based upon the submissions of the parties, including the pleadings, records, and
arguments of counsel, and for the reasons stated herein, the Court adopts, in part, and
1 Unless otherwise noted, all docket numbers referenced in this Order are to MDL
No. 05-1708 (DWF/AJB).
2
rejects, in part, the CBAFCC Reports recommendations. The Court orders the
distribution of Common Benefit Attorney Fees consistent with this Order.
BACKGROUND
I. General Background
The background of this multi-district litigation (MDL) is set forth more fully in
the Courts previous orders. Most notably, the Court specifically addressed attorney fees
at length in its March 7, 2008 and August 21, 2008 Orders. (See Doc. Nos. 2636
and 3201.) Briefly, this MDL commenced in November 2005 when the Judicial Panel on
Multidistrict Litigation consolidated certain actions and transferred them to the District of
Minnesota for pre-trial proceedings against Defendants Guidant Corporation, Guidant
Sales Corporation, and Cardiac Pacemakers, Inc. (collectively, Guidant). Individual
Claimants2 commenced these actions against Guidant for injuries alleged to have been
caused by certain defective implantable defibrillator devices and pacemakers
manufactured by Guidant.
From early 2006 through July 2007, the parties conducted extensive discovery,
engaged in motion practice, and prepared for five bellwether trials. Shortly before the
first bellwether trial was to begin in July 2007, the parties entered into a proposed
settlement. Later, the parties signed a term sheet with a negotiated settlement fund of
2 For the sake of consistency and simplicity, the Court will refer to the parties who
are subject to the terms of the Master Settlement Agreement and the jurisdiction of this
Court as Claimants, consistent with I.D, III.F, and VI.A-B of the Master Settlement
Agreement.
3
5,000,000, which included payment both for Claimants recoveries and for common
benefit attorney fees. Soon thereafter, the parties commenced a renegotiation process that
lasted approximately four months. The renegotiation process resulted in a new term sheet,
increasing the total settlement fund to 0,000,000. As before, the total settlement fund
included payment for Claimants recoveries and for common benefit attorney fees.
Nearly five months after the first proposed settlement was reached, the parties finally
entered into a Confidential Master Settlement Agreement (MSA) on December 10,
2007.
II. Common Benefit Attorney Fees
Section II.K of the MSA provides:
Common Benefit Payment. The Settlement Fund includes an amount for a
requested common benefit payment to Claimants counsel who would be
entitled to such payment. The amount of such common benefit payment
shall be determined by MDL Judge Donovan Frank. The [Lead Counsel
Committee (LCC)3] shall submit the request for common benefit
payment. Guidant shall have no additional financial obligation under the
Settlement beyond the amount required by Section II.E.
3 The Court designated the following individuals to serve on the LCC: Richard
Arsenault, Esq., of Neblett, Beard & Arsenault; Elizabeth Cabraser, Esq., of Lieff,
Cabraser, Heimann & Bernstein, LLP; Seth R. Lesser, Esq., formerly of Locks Law Firm,
PLLC and now of Klafter, Olsen & Lesser, LLP; and Charles S. Zimmerman, Esq., of
Zimmerman Reed.
4
Pursuant to that section, the Plaintiffs Steering Committee (PSC) 4 filed a
Request Pursuant to Section II.K of the MSA for a Determination of the Common Benefit
Attorney Fee Amount. Specifically, the PSC requested ,250,000 (18.85%, of the
0,000,000 settlement) for common benefit fees. On February 15, 2008, the Court
granted in part and denied in part the PSCs request. Specifically, the Court ordered that
,000,000 of the 0,000,000 settlement fund to be set aside for common costs in a
Common Cost Fund (the Cost Fund). In addition, based on the Courts equitable
authority and considering the relevant Johnson factors,5 the Court ordered that 15% of the
4 The Court designated the following individuals to serve on the PSC:
William M. Audet, Esq., of Alexander, Hawes & Audet, LLP; Daniel E. Becnel, Esq., of
the Law Offices of Daniel E. Becnel, Jr.; John R. Climaco, Esq., of Climaco, Lefkowitz,
Peca, Wilcox & Garofoli Co., L.P.A.; C. Brooks Cutter, Esq., of Kershaw, Cutter &
Ratinoff, LLP; Lance A. Harke, Esq., of Harke & Clasby LLP; Irwin B. Levin, Esq., of
Cohen & Malad, LLP; Richard A. Lockridge, Esq., of Lockridge Grindal Nauen, PLLP;
Ramon R. Lopez, Esq., formerly of Lopez, Hodes, Restaino, Milman & Skikos and now
of Lopez McHugh; Tobias L. Millrood, Esq., of Schiffrin & Barroway, LLP;
Stacey L. Mills, Esq., of Heins, Mills & Olson, PLC; Timothy M. OBrien, Esq., of Levin
Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A.; Paul J. Pennock, Esq., of Weitz
& Luxenberg, P.C.; Christopher A. Seeger, Esq., of Seeger Weiss LLP;
Hunter J. Shkolnik, Esq., of Rheingold, Valet, Rheingold, Shkolnik & McCartney LLP;
Thomas M. Sobol, Esq., of Hagen Berman Sobol Shapiro, LLP; Silvija A. Strikis, Esq.,
of Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC; Teresa Toriseva, Esq., of Hill
Toriseva & Williams, PLLC; Sol Weiss, Esq., of Anapol, Schwartz, Weiss, Cohan,
Felman and Smalley, PC; and Justin Witkin, Esq., of Aylstock, Witkin & Sasser, PLC.
On August 1, 2006, the Court appointed Nicholas J. Drakulich, Esq., of Jennings &
Drakulich, LLP to the PSC, replacing John Climaco, Esq., who resigned.
5 See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
The Johnson factors include: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal service properly;
(4) the preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee for similar work in the community; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the circumstances; (8) the
(Footnote Continued on Next Page)
5
0,000,000 settlement fund,6 or ,500,000, be set aside for common benefit attorney
fees in a Common Benefit Attorney Fee Fund (the Fee Fund). The Court calculated
this amount using the percentage-of-the-fund method and a lodestar cross-check. In
performing the lodestar cross-check, the Court capped the attorney hourly rate at 0
and the paralegal hourly rate at 0. The Court noted that it anticipated that the Fee
Fund would be more than enough to cover common benefit attorney fees, especially after
close scrutiny was applied to fee requests to eliminate duplicative efforts and requests for
reimbursement for work that was not performed for the common benefit.
The Court then appointed six attorneys, some of whom represented MDL
Claimants and some of whom represented non-MDL Claimants, as members to the
CBAFCC: Charles S. Zimmerman, Esq., of Zimmerman Reed, PLLP;
Elizabeth Cabraser, Esq., of Lieff, Cabraser, Heimann & Bernstein, LLP;
Christopher A. Seeger, Esq., of Seeger Weiss, LLP; Nicholas J. Drakulich, Esq., of
The Drakulich Firm; Michael K. Johnson, Esq., of Goldenberg & Johnson, PLLC; and
(Footnote Continued From Previous Page)
amount involved and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases. Id. at 719-20.
6 As noted in the August 21, 2008 Order, the Court recognizes that, pursuant to
II.A.1. of the MSA, the total dollar amount of the settlement, and thus the dollar
amount of the Common Benefit Attorney Fees, could vary depending on the number of
Participating Claimants in the settlement. In addition, the Court notes that if Common
Costs exceed ,000,000, any overruns will be paid from the Common Benefit Attorney
Fee allocation. Thus, the Common Benefit Attorney Fee allocation will be reduced by
any amount of Common Costs that are in excess of ,000,000. Any amount of the
Common Cost allocation that is not spent will be redistributed among the Claimants
recovery. (See Doc. No. 3201 at 19, n.20.)
6
Gale D. Pearson, Esq., of Pearson, Randall & Schumacher, PA. Mr. Zimmerman was the
chair of the CBAFCC. The Court ordered the CBAFCC to submit proposed policies,
procedures, guidelines, and protocols to guide the CBAFCCs review of common benefit
fee requests.
III. The CBAFCC Process
The CBAFCC timely submitted the CBAFCC Proposed Policies, Procedures,
Protocols, and Guidelines for Allocation of the Common Benefit Attorney Fee Fund and
the Common Cost Fund (the CBAFCC Policies). On March 3, 2008, the Court adopted
the CBAFCC Policies. In that Order, the Court instructed the CBAFCC to give each
Common Benefit Attorney Fee and Cost application careful scrutiny and provide each
application with a fair and equitable allocation and to make recommendations only on
true and bona fide common benefit work and costs. (Doc. No. 2628 at 1.) The
CBAFCC was to do so based on its collective years of experience, extensive knowledge
of both the state and MDL litigations and the detailed submissions by each applicant in
their determination of each allocation. (Id. at 1-2.) After doing so, the CBAFCC was
instructed to make recommendations to the Court with respect to each application.
The CBAFCC Policies required attorneys seeking reimbursement to submit time
records and, by no later than March 10, 2008, to provide a three-page submission
describing their common benefit work with particular emphasis on bona fide efforts
made to produce results for the common benefit and as a contribution toward the
discovery, trial and/or resolution of the Guidant litigation. (Doc. No. 2628 at 2.) The
attorneys could also elect to make a confidential fifteen-minute presentation before the
7
CBAFCC. The Policies required the CBAFCC to consider these submissions and live
presentations. After deliberating and utilizing the Johnson factors, the CBAFCC was
required to make recommendations to the Court for each applicant, at which time each
applicant had an opportunity to file an objection with the Court.
The CBAFCC Policies explained that each attorney submitting time or cost
applications should consider that they were submitting applications to the Court, under
oath, that their requests were for work that was indeed common benefit work. No time
or costs spent on developing or processing individual issues in any case for an individual
client (claimant) will be considered or should be submitted, except for appropriate
bellwether Plaintiffs. (Doc. No. 2628 at 5.) The CBAFCC Policies further explained
that only time and costs incurred pursuant to an LCC/PSC assignment would be
considered. The CBAFCC Policies specifically described which time or costs would be
disallowed:
1) Time or costs that will be disallowed or discounted:
a. Time or cost submissions in which the hours of service and
costs were not properly coded;
b. Any cost for which proper receipts or other proof of payment
have not been submitted;
c. Any item of time or cost which was incurred in connection
with the discovery or trial of individual cases or group of
cases or the case-specific preparation of those cases for trial.
This does not include coordinated discovery in the MDL or
state proceedings;
d. Time submission which does not properly provide hourly
rates and/or descriptions of the professional status of each
person whose professional time is subject of the submission;
8
e. Time submission which does not provide cumulative totals
for the time submitted;
f. Cost submission that does not provide cumulative total for the
reimbursable costs claimed;
g. Any item of cost which does not meet the requirements of
these Guidelines;
h. Any item of time or cost which is not described in sufficient
detail to determine the nature and purpose of the service or
cost involved;
i. Time submission in which the amount or extent of review
or attendance time is excessive as a whole when judged in
reference to the role which the Attorney, or other timekeeper,
had in the litigation;
j. Time and/or cost submission which is grossly excessive on its
face, when considered as a whole in light of the role in which
the Attorney, or other timekeeper, had in the litigation;
k. If it is determined that any time submitted or activity for
which Counsel is requesting to be compensated, is clearly
outside the scope of authority or is not warranted, as/or
considered to be a contribution to the Common Benefit, such
time will not be allowed.
(Doc. No. 2628 at 5-7.) The CBAFCC Policies also contained detailed information
concerning the format for submission of records and what particular tasks and expenses
would be considered for the common benefit. The Court ordered the CBAFCC to file
and serve its proposed allocation plans within sixty days of the Courts March 7, 2008
Order. (Doc. No. 2636 at 48.)
9
IV. The CBAFCC Report
The CBAFCC Report was issued on April 24, 2008. In that report, the CBAFCC
noted that the recommended allocation for each applicant was conducted pursuant to the
guidelines set for [sic] in the [CBAFCC Policies] . . . . (Doc. No. 2792-2 at 2.) The
CBAFCC stated:
The review of each application was conducted pursuant to and [in]
accordance with these Court approved [CBAFCC Policies] . . . and the
CBAFCC makes its recommendations based on these Protocol and
Guidelines in our determination of each fee and cost allocation. The
CBAFCC relied upon its combined years of experience, extensive
knowledge of both the state and MDL litigation, the detailed submissions
and oral presentations and an intense and cooperative deliberation process
in the determination of each firms allocation.
(Id. at 2.)
The CBAFCC Report explained the procedure that the CBAFCC used in
reviewing the petitions. First, the CBAFCC noted that it required counsel making a
common benefit application to submit time and costs pursuant to the CBAFCC Policies.
(Id. at 4.) Second, as required by the CBAFCC Policies, each firm was asked to prepare
and submit a summary of no longer than three pages, describing, with specificity and
particularity the common benefit work performed by that firm, with particular emphasis
on bona fide efforts made to produce results for the common benefit and as a contribution
toward the discovery, trial and/or resolution of the Guidant litigation. (Id.) The
CBAFCC also noted that firms were allowed to give a confidential 15-minute
presentation to the CBAFCC on the firms common benefit time and costs. (Id. at 5.)
The CBAFCC set up four separate CBAFCC sessions throughout the country to hear
10
these presentations. (Id. at 7, 9.) Then, the CBAFCC asserted that it reviewed the
submissions of time and costs, the summaries, and the live presentations, deliberated on
the information of these submissions, and submitted the recommendations for allocation
for each firm or attorney. (Id. at 5.)
The CBAFCC Report further detailed the time the CBAFCC spent working on the
CBAFCC Policies and the Report. Prior to the submissions from counsel, the CBAFCC
met on three occasions to discuss the proposed guidelines. After submitting the proposed
CBAFCC Policies, which were later approved by the Court, the CBAFCC drafted a
confidential memorandum to its members that laid out the Courts requirements,
activities constituting compensable common benefit time, and other considerations.
(Doc. No. 2792-2 at 8.) Each CBAFCC member was provided a CD of the firms time
records and cost submissions that included time that had been submitted throughout the
litigation. (Id.)
The CBAFCC met on April 10 and 11, 2008, to review and discuss submissions
and make recommendations for a plan of allocation. (Id. at 14.) The CBAFCC noted
that its proposed plan of allocation, attached as Exhibit C to the CBAFCCs Report, was
agreed upon unanimously by the CBAFCC members. (Id.)
In its Report, the CBAFCC noted that in evaluating the common benefit fee
applications, it applied the Johnson factors and also took into account how and to what
extent did an applicant firm actually effect [sic] the overall result of the litigation or
contribute to a seminal benchmark in the litigation. (Id. at 14 (quotation without citation
in the original).) The CBAFCC Report noted that in this MDL, about ten law firms did
11
the lions share of the work and that the CBAFCC assigned multipliers to reflect such
contributions. (Id. at 15.)
The CBAFCC stated that it adjusted each and every lodestar application to reflect
a maximum hourly rate of 0 per hour for attorneys and 0 per hour for paralegals.
(Id. at 16.) Then, the CBAFCC noted:
In each instance, the Committee attempted to determine, and remove when
possible, time that was not authorized; not considered to be for the common
benefit; unreasonable and/or, not appropriate under the circumstances. This
was a difficult, if not impossible, task on a quantitative basis. However, on
a qualitative basis the task was possible. The multiplier applied in the fifth
column of the Proposed Plan of Allocation [] is the CBAFCCs reasonable
and unanimous qualitative analysis of each applicants work, taking into
consideration all of the above factors enunciated in the Courts various
orders.
(Id. at 16-17.) Further, the CBAFCC stated:
Additionally, as Chairman of the CBAFCC, Charles S. Zimmerman, met
with Kahn, Hoffman & Hochman, LLP (Certified Public Accountants) and
Seth Lesser, an LCC member who was the custodian of the Time and Cost
submissions required throughout the litigation. Mr. Zimmerman made
inquiries of both the CPA and Mr. Lesser regarding their review of the
records and further asked that they point out to the committee any
inappropriate time records as defined in PTO 6. (Exhibit B). For PSC
members, this was done on a monthly basis pursuant to PTO 6 reporting.
For others the task was done when the records were submitted. All records
as provided and adjusted in the second column of the Proposed Plan of
Allocation (Exhibit C) subject to individual law firm record keeping
policies and individual lawyer record keeping practice which do vary,
appeared to our CPA, Mr. Lesser and the CBAFCC to be within
reason.
(Id. at 17 (emphasis supplied).) The CBAFCC Report again stated that the CBAFCC
evaluated the submissions in order to determine what work mattered on a qualitative, not
quantitative, basis. (Id. at 17-18.)
12
As for costs, the CBAFCC Report stated that as of the date of the filing of the
report, costs had increased to approximately ,132,000.7 The CBAFCC noted that both
the CBAFCC and the accountants evaluated the costs submitted with some degree of
specificity. (Id. at 19.) The CBAFCC Report then states:
As a Committee, we approved only those costs we were confident were
appropriate and removed or did not allow others. The fourth column of the
Proposed Plan of Allocation (Exhibit C) is the CBAFCC unanimously
approved Costs. The CBAFCC believes that before reimbursement to each
common benefit firm [for] their allocated costs, a final review of those
costs should take place.
(Id. at 19-20.) In addition to already-expended costs, the CBAFCC Report stated that the
CBAFCC anticipates additional costs for settlement administration and for the
CBAFCCs extensive work. (Id. at 21.)
The CBAFCC Report noted that any decision of this Court regarding the
CBAFCC recommendations of common benefit fees and cost awards is non-appealable
under the terms of the MSA. (Id. at 20.) Further, the CBAFCC Report stated, [a]ny
counsel who filed an attorney declaration declaring that his or her client is filing a
claim, pursuant to the procedure outlined in the MSA, submits him or herself to the
jurisdiction of this Court and has thereby assented to all the terms of the MSA, including
accepting the non-appealability term of the MSA. (Id. citing Section VI(G) of the
MSA.)
7 Later, in a letter to the Court dated September 5, 2008, Mr. Zimmerman adjusted
this number downward to ,570,831.
13
Most notable from its absence in the CBAFCC Report was the CBAFCCs
complete failure to provide the Court with any detail, summary or not, as to each firms
allocation. Instead, in its recommendation, the CBAFCC appears to have assumed that
100% of the firms lodestars, after the fee cap, were compensable. The CBAFCC never
provided the Court with any support to demonstrate its review of the time records.
Instead, in a letter sent to the Court after it was apparent that the Court was troubled by
the CBAFCCs lack of analysis, the CBAFCC offered to meet with the Court to explore
issues of importance that might not be apparent from a review of records and reports and
to answer questions that will enlighten all in making the process more transparent and
understandable. (CBAFCC Letter Oct. 31, 2008.) The Court respectfully declined the
CBAFCCs invitation.
Although the CBAFCC, in its response to objections, provided at least minor
detail into their theory behind each firms multiplier, the Court finds that the response
was of virtually no help in determining specific awards. Basically, the CBAFCC stood
by its initial recommendations and continued to reiterate that some work was more
important than other work, in an attempt to justify the qualitative multipliers.
DISCUSSION
An award of attorney fees is committed to the sound discretion of the district
court. Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1157 (8th Cir. 1999). To avoid unjust
enrichment of persons who benefit from a lawsuit without shouldering its costs and to
fairly compensate those attorneys who coordinate the litigation and shoulder its burden, a
district court can award attorney fees in MDLs to attorneys whose work contributed to
14
the common benefit of the MDL. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 478
(1980). To assist with this task, a court can create a committee, made up of lead counsel
and others representing certain categories of objectors and non-objectors, to allocate fees
among all counsel entitled to share in the common benefit fund. In re Diet Drugs
(Phentermine, Fenfluramine, Dexfenfluramine) Products, 2002 WL 32154197, at * 22
(Oct. 3, 2002) (citing cases). However, [t]he appointment of a [common fee] committee
does not relieve a district court of its responsibility to closely scrutinize the attorneys fee
allocation, especially when the attorneys recommending the allocation have a financial
interest in the resulting awards. In re High Sulfur Content Gasoline Prods. Liab. Litig.,
517 F.3d 220, 227 (5th Cir. 2008).
A. Fees and Compensable Work
The Court has conducted an exhaustive and detailed de novo review of the time
records submitted by fifty-eight attorneys/firms who requested common benefit attorney
fees, regardless of whether the attorneys/firms objected to the CBAFCCs proposed
award. The Court has also reviewed, in detail, the three-page submissions that were
submitted by forty-four of these attorneys/firms. In addition, the Court has thoroughly
reviewed the twenty-one objections submitted in response to the CBAFCC Report. 8 The
Court has also reviewed the CBAFCCs response to these objections.
Moreover, the Court also reviewed an in camera report from Seth Lesser, Esq.,
which the Court ordered Mr. Lesser to submit. (See Doc. No. 3364.) Because the
8 This number includes an objection received from the Mulligan Firm.
(Doc. No. 2848.) The Mulligan Firm did not make a request for Common Benefit Fees.
15
CBAFCC failed to provide the Court with any meaningful basis for its recommendations,
the Court was compelled to ask Mr. Lesser to provide this information. In his roles as the
individual who allocated work and assignments by virtue of acting as the LCCs liaison
to both the Discovery and Law and Briefing Committees, the individual who handled the
formation and running of the PSCs working groups and committees, and his additional
role as the custodian of the Time and Cost submissions, Mr. Lesser was in a unique
position to serve the Court. The Court asked Mr. Lesser to provide a detailed analysis
regarding duplication of effort in the time records and to flag specific instances of
duplicative time and effort or non-common benefit time in the time records. Mr. Lessers
report served, in part, as a barometer for the Court to assist it in determining what work
was indeed assigned or common benefit work. Mr. Lesser, together with PSC member
Wendy Fleishman, Esq., completed a line-by-line review of the records in approximately
three weeks at the Courts request. The Court emphasizes that it used Mr. Lessers report
to supplement, not supplant, the Courts independent review of the time records. In no
instance did the Court substitute Mr. Lessers judgment for that of the Court. It should be
noted that Mr. Lesser suggested discounts to the firms compensable time that were, as a
whole, significantly more generous to the firms than the reductions the Court eventually
decided upon. The Court also asked Mr. Lesser to submit to the Court the time expended
for his efforts, which he did via e-mail on December 6, 2008.
The records submitted to the CBAFCC and the Court varied greatly in quality. A
select few attorneys and firms submitted very detailed and organized time records.
Fifteen out of fifty-eight attorneys/law firms never provided a three-page submission,
16
which significantly hampered the Courts ability to evaluate those firms fee applications.
Many lawyers provided vague or wholly incomplete time records. The Court
understands that plaintiffs lawyers routinely do not keep traditional time records for their
contingency-fee cases. Nonetheless, the lawyers submitting requests for common benefit
reimbursement should have been familiar with how common fees are distributed in an
MDL setting because MDL courts always require attorneys to provide time records for
common fee requests. See Manual for Complex Litigation, Fourth, 14.122 (discussing
requirements to keep track of hours and listing cases). In addition, PSC members were
required to submit their detailed time records on a monthly basis pursuant to Pretrial
Order No. 6. (Doc. No. 56 at 8.) Given these factors, the Court is unsympathetic to those
attorneys who assert that they were unable to provide detailed time records.
The Court first limited its review to assessing whether the lodestars submitted by
the firms who petitioned for common benefit fees were appropriately compensable in
light of the Johnson factors9 and especially in light of the Courts concerns regarding
duplicative, excessive, and/or non-common benefit work. As a result, the Court first
limited the awards to determining what portion of the lodestars submitted are attributable
to the common benefit and thus what fees are compensable. To this extent, no firm or
9 The Court evaluated the Johnson factors generally with respect to all attorneys
requesting common benefit fees in its March 7, 2008 Order. (Doc. No. 2636 at 17-26.)
Here, the Court considered each common benefit attorneys submission individually and
in light of the Johnson factors. Although it did not discuss each Johnson factor
individually, specifically with respect to time and labor required and time limitations
imposed by the circumstances, the Court summarized its findings with respect to each
firm in Section B, below.
17
attorney was awarded a multiplier greater than 1.0 with respect to the time that they
appropriately billed to common benefit attorney fees.
The Court believes that law firms should be compensated for the work that they
were assigned to do before firms that bore a large risk are granted an enhancement for
that risk. If this were not the case, then in future MDLs, firms would have little incentive
to do the worker bee work. Although the amount of money to pay the common benefit
attorney fees here was finite, this is not a case where there was not enough money
available to pay all attorneys for 100% of their compensable work. Yet the CBAFCC
appears to have viewed the multipliers for the top ten firms as more important than
compensating those who did legitimate, compensable work. The Court is also extremely
troubled by the fact that, throughout this litigation, the MDL leadership never alerted
individual attorneys or firms to the fact that they may not be compensated for all of their
work should the case reach a favorable outcome for Plaintiffs. The MDL leadership did
not review the bills that were submitted on a monthly basis and did not limit attendance at
certain events. In this way, the leadership perhaps unintentionally lulled the firms into
believing that all of their work would be compensated.
With these considerations in mind, the Court conducted its de novo review of the
firms submissions. The Court did a line-by-line review of every firms time record
submissions. As the Court was reviewing the time records that were submitted for
common benefit fee requests, the Court found numerous instances of attorneys submitting
time records that were not directed to the common benefit. Such entries included time
related directly to client work, such as making client contacts, research for individual
18
clients, and the like. The Court found that many firms submitted excessive time for their
work prior to the MDL inception, much of which the Court attributed to client-related
work. In addition, many firms submitted time for marketing-related activities, such as
attending an ATLA conference or other conferences. Other firms submitted time related
to their own firms marketing activities to be involved in this MDL. In addition, many
firms submitted time that the Court would view as excessive or duplicative in light of the
tasks performed. The Courts determinations as to each firms compensable time are
summarized in Section B, below.
B. Courts Review of Firms Compensable Time
1. Anapol Schwartz Weiss Cohen Feldman & Smalley, PC
The firm of Anapol Schwartz Weiss Cohen Feldman & Smalley, PC, submitted
time records but no three-page submission on behalf of its petition for common benefit
fees. The firm requested ,380. The CBAFCC first considered an adjusted lodestar of
,380 and recommended a 0.3 multiplier for an award of ,014. The firm did not
object to this recommendation. After further submissions, the CBAFCC modified the
lodestar after fee cap to ,380. 10
The Courts de novo review of the firms time records revealed a great deal of
time that is not attributable to the common benefit. Such time includes that spent on
client intake, newsletters, review of media, client-specific pleadings, marketing, filing
10 For this and other submissions where the lodestar was adjusted after the CBAFCC
Report, the Court considered the newly adjusted lodestar in deciding the dollar amount of
the award.
19
pro hac vice motions, and time spent reviewing court documents. Other time, however,
did relate to the common benefit. The Court notes that Sol Weiss, Esq., from the firm
was a PSC member and that some of his time was spent at PSC meetings and working on
pre-emption issues. Therefore, based on the Courts de novo review, the Court finds that
the CBAFCCs recommended award of ,014 is appropriate for the work that the firm
spent on the common benefit.
2. Aylstock, Witkin, Kreis & Overholtz PLLC
The firm of Aylstock, Witkin, Kreis & Overholtz PLLC submitted time records
and a timely three-page submission on behalf of its 4,775 request for common benefit
attorney fees. The firm also presented its request to the CBAFCC. The CBAFCC first
considered an adjusted lodestar of 2,783. The CBAFCC recommended a
0.9 multiplier, for an award of 5,505. The firm did not object to this award. Later,
the CBAFCC considered other submissions and revised the adjusted lodestar to
4,783.
The three-page submission detailed the firms work in document review and the
bellwether selection process led by PSC member Justin Witkin, Esq. Further, firm
member Neil Overholtz, Esq., led the firms efforts in sales and marketing discovery,
including taking depositions related to Dr. Higgins activities for the Duron and Clasby
cases.
The Courts review of the firms records revealed some time billed from another
matter. Also, the firm included some time the Court would deem marketing activities,
such as vague entries for reviewing news articles prior to and after the MDLs inception
20
and attending an ATLA conference. In addition, the firm included some client-related
entries that cannot be attributed to the MDL. Otherwise, the Court found that most work
was properly attributed to the common benefit. Therefore, based on the Courts de novo
review, the Court awards the firm 7,304.
3. Barnow & Associates, PC
The firm of Barnow & Associates, PC, submitted time records but did not submit a
three-page submission or appear before the CBAFCC to support the firms request for
common benefit attorney fees. The firm requested ,290, and the CBAFCC considered
an adjusted lodestar of ,445 after the fee cap. The CBAFCC recommended a 0.2
multiplier for an award of ,689. The firm did not object to this recommendation.
The firms time records submitted are quite vague and contain many entries that
merely state review e-mail or calls and discussions. In the absence of a three-page
submission to detail the firms contribution to the common benefit, and in the absence of
an objection, the Court is left with no meaningful way to verify what work was done at
the PSCs request. Therefore, based on the Courts de novo review, the Court finds that
the CBAFCCs recommended award of ,689 is appropriate.
4. Barrios, Kingsdorf & Casteix, LLP
The firm of Barrios, Kingsdorf & Casteix, LLP, submitted time records and a
timely three-page submission in support of its petition for common benefit attorney fees.
The firm submitted a lodestar request of ,175, and the CBAFCC considered an
adjusted lodestar of ,175. The CBAFCC recommended a multiplier of 0.2 and an
award of ,035. The firm did not object to this recommendation.
21
The firms three-page submission characterizes its involvement in the MDL as
limited. It details the firms contribution to the coordination of state cases with the
MDL. Specifically, the firm noted its involvement in the pre-MDL strategy and its
attendance at a PSC meeting held in Scottsdale, Arizona, in early February 2006. In
addition, the firm noted its work related to settlement of the matter.
The Courts review of the firms time records revealed a significant amount of
time that cannot be attributed to the common benefit. Specifically, prior to the inception
of the MDL, the firm reported a great deal of time that was client- or marketing-related.
In addition, the firm reported some time spent reviewing materials that is more
appropriately billed to the firms individual client, rather than to the common benefit.
Therefore, based on the Courts de novo review, the Court finds that an award of ,352
is appropriate.
5. Becnel Law Firm
The Becnel Law Firm submitted a lodestar request of ,459,453. The firm did
not submit a three-page submission or appear before the CBAFCC. The CBAFCC first
considered a lodestar after fee cap of ,179,327, and recommended a 0.25 multiplier for
a proposed fee award of 4,832. The Becnel firm submitted an objection under seal,
which was primarily related to an alleged conflict of interest between Mr. Becnel and a
member of the CBAFCC. After further submissions and subsequent to the CBAFCC
Report, the CBAFCC adjusted the lodestar to ,181,327.
As with all of the other firms who submitted requests for common benefit fees, the
Court has reviewed the firms request de novo. This should stem any of Mr. Becnels
22
concerns regarding any perceived conflict of interest. As for the Courts detailed review
of the firms records, the Court finds that a significant portion of the firms time was
spent on work that the Court cannot attribute to the common benefit. Specifically, some
entries related to work that the Court finds to be individual client-related, including but
not limited to, time spent on what the Court would classify as marketing activities and
time spent reviewing general orders and correspondence. In addition, some of the time
entries were so vague that the Court could not determine how the work should be
attributed. For example, some entries read participating in conference call. Other
entries merely read review and code without specifically noting the nature of the
document review and coding. And the Court is personally aware that at least some of
Mr. Becnels travel time to Court status conferences was, as often noted by Mr. Becnel
himself at the status conferences, also related to his trips to Minnesota for his work on the
Viagra MDL. This travel time should not be fully compensated by this MDL. Yet
however vague, the firm spent much time reviewing and coding documents, and there is
nothing in the record to suggest that this work was not assigned by the PSC. In fact, as a
PSC member, Mr. Becnel submitted time records from the onset of the litigation, and
there is no indication that the PSC ever questioned the propriety of the firms time.
Therefore, based on the Courts de novo review, the Court awards the firm 0,664.
6. Bourland Heflin Alvarez Minor & Matthews, PLC
Bourland Heflin Alvarez Minor & Matthews, PLC submitted a lodestar request of
,315. The fee cap did not change the submitted lodestar. The firm submitted a timely
three-page submission and did not appear before the CBAFCC. The CBAFCC
23
recommended a 0.7 multiplier for a proposed fee award of ,321. The firm did not
object to the proposed fee award.
The firms three-page submission explains that their request is based on the work
the firm did on behalf of the firms only Guidant MDL client, Johnny R. Clark.
Mr. Clark was selected and deposed as a potential bellwether candidate. Mr. Clark was
later stricken from the potential bellwether candidate list in July 2006.
The Courts review of the firms time records reveals that nearly all of the time
submitted is directly attributed to the bellwether process. There is nothing in the record
to suggest that the firm was not asked to do this work or did not perform this work.
There is, however, a small portion of the time submitted related to fee agreements and
other tasks that would have to be performed for any individual case and thus cannot be
attributed to the common benefit. Therefore, based on the Courts de novo review, the
Court finds that an award of ,649 is appropriate.
7. Charfoos and Christensen, P.C.
Charfoos and Christensen, P.C., submitted a lodestar request of 5,405. After
the fee cap, the CBAFCC considered a lodestar of 2,405. The firm submitted an
untimely three-page submission and appeared before the CBAFCC. The CBAFCC
recommended a 0.3 multiplier for a proposed fee award of ,722. The firm did not
object to the proposed fee award. After further submissions, the CBAFCC revised the
adjusted lodestar to 5,405.
The firms three-page submission reveals that it routinely refers its medical
appliance cases, including Leland Braunds case, to Zimmerman Reed. Mr. Braund was
24
selected as one of the five bellwether cases. As a result, the firm asserts that it spent a
significant amount of time preparing Mr. Braunds case for trial. In addition, certain
attorneys of the firm assisted in drafting the Rule 26 disclosures and also traveled to
certain status conferences.
The Courts review of the firms time records reveals that some of the time
submitted, particularly from June 2006 through June 2007, is directly attributed to the
bellwether process. There is nothing in the record to suggest that the firm was not asked
to do this work or did not perform this work. There is, however, a significant portion of
the time submitted that cannot be attributed to the common benefit. Such time relates to
pre-MDL activities, activities done before Mr. Braund became part of the bellwether
selection process, and activities related to normal individual casework such as ECF
filings, reviewing PTOs, and completing plaintiff fact sheets. Therefore, based on the
Courts de novo review, the Court finds that an award of ,162 is appropriate.
8. Cohen & Malad, LLP
The firm of Cohen & Malad, LLP, submitted an untimely three-page submission
and time records in support of its 5,824 request for common benefit attorney fees.
The firm also made a presentation to the CBAFCC. The CBAFCC considered a
7,505 lodestar after the fee cap. The CBAFCC recommended a 0.7 multiplier, for an
award of 6,253. The firm objected to this amount.
The firms three-page submission noted the role of Irwin Levin, Esq., Cohen &
Malads managing partner, as co-chair of the Law and Briefing Committee. Mr. Levin
was also a PSC member. The summary cited the firms work on initial case filings that
25
became lead cases in the MDL. The summary also noted the firms work in relation to
motion practice on evidence preservation and discovery issues. In addition, the firm
noted its dispositive motion work on the first bellwether case and its pursuit of the
Indiana state court class action. Finally, the firm noted its attendance at settlement
negotiations at the LCCs request.
The firms objection to the CBAFCC recommendation noted that the firms efforts
in the Indiana State Court litigation were not actually compensated by the CBAFCCs
proposed award. The objection further detailed the firms work, at the direction of the
LCC, in that regard.
The Courts de novo review of the firms records revealed some entries that were
client-related, including a great number of calls to individual clients, work on individual
client fact sheets, and the like. The Court notes that the firms time spent on initial case
filings is not deemed common benefit work. In addition, the Court could not attribute
any common benefit work to some vague entries. Therefore, based on the Courts
de novo review, the Court finds that an award of 3,754 is appropriate.
9. Cuneo Gilbert & LaDuca, LLP
The firm of Cuneo Gilbert & LaDuca, LLP, submitted a timely three-page
submission and time records in support of their request for common benefit attorney fees.
The firm also appeared before the CBAFCC. The firm submitted a 4,973 lodestar,
and the CBAFCC capped this figure at 5,173. The CBAFCC recommended a
0.4 multiplier for an award of 8,069. The firm objected to this recommendation.
26
The firms three-page submission describes that the bulk of the firms work related
to document review and coding at the request of lead counsel. In addition, the firm
participated in the Discovery Committee, the bellwether selection process, and assisted in
some briefing for the Duron and Clasby summary judgment motions.
The firms objection to the CBAFCCs recommendation states that the CBAFCC
had conflicts of interest that resulted in unfair multipliers recommended for its members.
The firm states that it only had one client in the MDL, and that this client, Otto Morman,
was one of the original five complaints that formed the basis for the MDL. The firms
objection suggested that all firms involved in common benefit work be given a floor of a
0.7 multiplier and that then the Court should distribute the remaining
.5 million dollars as the Court sees fit.
The CBAFCC responded to this objection by noting that a 0.7 across-the-board
multiplier would result in an unjust enhancement to those firms that made a small
contribution to the common benefit. The CBAFCC stated:
Given the amount of common benefit work that was needed to reach the
result that was achieved, the Committee, under no circumstances, felt it
could award 0,000 for the totality of the work done by the Cuneo
Gilbert & LaDuca firm. Based on the totality of the work done overall for
the common benefit, the Committee feels Cuneo Gilbert & LaDuca firms
recommended allocation is appropriate.
(CBAFCC response at 12.)
The Courts de novo review of the Cuneo firms time records shows that nearly all
of the firms time was related to the common benefit. Aside from a few vague entries
and some entries related to reviewing documents that would have been done aside from
27
the common benefit, nearly all of the firms time related to document review and coding.
There is no indication from the CBAFCCs submissions that this time was not requested
or warranted. Therefore, based on the Courts de novo review, the Court finds that an
award of 8,172 is appropriate.
10. Douglas & London, P.C.
Douglas & London, P.C., submitted time records and an untimely three-page
submission on behalf of their petition for common benefit attorney fees. The firm also
appeared before the CBAFCC. The firm requested ,320 in attorney fees. The
CBAFCC considered an adjusted lodestar of ,32111 and recommended a multiplier of
0.2, for a total of ,664. The firm did not object to this recommendation.
In its three-page submission, the firm detailed the role of an associate at the firm in
coding documents. In addition, the firm described its role in the Burmeister bellwether
trial preparation. Specifically, the firm defended the plaintiffs deposition for that case.
The firm noted that as a plaintiff-only firm, it does not typically document its time in
detail. As a result, the firm stated that its time estimates were probably on the low side of
what actually was incurred.
The Court has reviewed the firms time records and its three-page submission.
The Court finds that a large portion of the firms submitted hours are more properly
attributed to client- or marketing-related activities, not common benefit work. Therefore,
11 The CBAFCC supplied the Court with these numbers. The Court is unsure why
the amount changed by one dollar.
28
based on the Courts de novo review, the Court agrees with the CBAFCC
recommendation and awards the firm ,664.
11. Ellis, Carstarphen, Dougherty & Goldenthal, PC
The firm of Ellis, Carstarphen, Dougherty & Goldenthal, PC, submitted time
records but no three-page submission on behalf of its 9,477 request for common
benefit attorney fees. The firm did not appear before the CBAFCC. The CBAFCC
considered an adjusted lodestar of 7,459. The CBAFCC recommended a
0.2 multiplier for an award of ,492. The firm objected to this recommendation.
The firms objection, combined with that of the other Texas firms, primarily
focused on procedural objections with the CBAFCCs work. The Texas firms noted that
the CBAFCC Report fails to provide the necessary transparency of the process of
awarding common benefit fees and that the CBAFCC Report is not supported by
evidence of the CBAFCCs decision-making process. The Texas firms stated that the
CBAFCC failed to provide the Court with an appropriate factual analysis to support the
CBAFCCs conclusions. The Texas firms further stated that the CBAFCC Report applies
the wrong analysis for determining the amount of fees to be awarded. Specifically, the
Texas firms take issue with the CBAFCCs multiplier approach.
The CBAFCC responded to the Texas firms objections by stating that none of the
Texas firms did a three-page submission to support their requests. The CBAFCC noted
that a number of the Texas cases were settled separately and outside of this MDLs
settlement and that there was no coordination with this MDL. The CBAFCC assumed
29
that the Texas firms would have been compensated as part of that Texas state court
litigation.
The Texas firms submitted detailed billing records through June 2006. The
Courts de novo review of the Texas firms time records revealed a great deal of clientspecific
and marketing-related activities. The Texas firms submitted multiple entries
related to such things as the preparation of PowerPoint presentations to which the Court
cannot attribute a common benefit. Moreover, the Texas firms declared significant time
records for reading general Court orders and correspondence. In the Courts view, little
of the time submitted by this firm is compensable from the common benefit. Thus, based
on the Courts de novo review, the Court finds that an award of ,746 is appropriate.
12. Goldenberg & Johnson PLLC and Crosby Law Office
The firm of Goldenberg & Johnson, PLLC, together with the Joseph Crosby Law
Office, submitted a timely three-page submission and time records in support of their
6,868 and 6,003 requests, respectively, for common benefit attorney fees.
Michael Johnson, Esq., presented to the CBAFCC on behalf of the Goldenberg &
Johnson firm. The CBAFCC considered adjusted lodestars after the fee cap of 9,975
for Goldenberg & Johnson and 1,240 for Joseph Crosby. The CBAFCC
recommended a 1.2 multiplier for the Goldenberg & Johnson firm, for an award of
7,970. The CBAFCC recommended a 1.0 multiplier for Joseph Crosby, for an award
of 1,240. The firms did not object to these recommendations.
The firms collective three-page submission detailed the firms significant
participation in the Minnesota bellwether cases. In addition, the firms noted their
30
significant and active involvement in the settlement negotiations that led to the final
resolution of this litigation. The firms noted that their time records were not kept
contemporaneously because they filed the majority of their cases in Minnesota state
court. However, the firms reconstructed their time records based on their file notes,
calendars, and e-mail. The firms noted that due to the fact that they reconstructed their
time records, the firms probably only submitted about 60-70% of the common benefit
time that was actually performed.
The Courts review of the Goldenberg & Johnson firms time records revealed that
although the time submitted is easily attributed to the common benefit, some of the time
the firm submitted is excessive in light of the tasks performed. Therefore, based on the
Courts de novo review, the Court finds that an award of 7,976 is appropriate for the
Goldenberg & Johnson firm.
The Crosby Law Offices time similarly revealed some excessive time, but it
primarily showed appropriate common benefit time. Therefore, based on the Courts
de novo review, the Court finds that an award of 5,678 to the Crosby Law Office is
appropriate.
13. Grady Schneider & Newman LLP
The firm of Grady Schneider & Newman LLP submitted an untimely three-page
submission and time records on behalf of its 2,318 request for common benefit
attorney fees. The firm made a presentation to the CBAFCC to support its request. The
CBAFCC did not adjust the lodestar and recommended a 0.3 multiplier for an award of
3,695. The firm objected to this recommendation.
31
The firms three-page submission noted the firms significant contribution toward
document review and coding. The firm noted that aside from the 1,176.5 hours it
submitted for coding and review, it did not submit any of its other common benefit
time, including its time spent corresponding with the PSC and discussing case strategies.
The firm objected to the CBAFCCs recommendation, stating primarily that all of
the firms work was done at the request of the PSC. The CBAFCC responded to this
objection by noting that the CBAFCC valued document review and coding to be a
qualitatively less significant contribution than other work.
The Courts de novo review of the firms time revealed some portion of time that
the Court would view as client-related work, including reviewing general court orders. In
addition, the Court found that some time submitted related to researching medical issues
and reading depositions was excessive in light of the nature of the common benefit work
that was performed. Therefore, based on the Courts de novo review, the Court finds that
an award of 9,854 is appropriate.
14. Hagen Berman Sobol, LLP
The firm of Hagen Berman Sobol, LLP, submitted some time records but no
three-page submission on behalf of its 2,284 request for common benefit attorney
fees. The firm did not appear before the CBAFCC. The CBAFCC considered an
adjusted lodestar of 1,473. The CBAFCC recommended a 0.5 multiplier, for an
award of 0,737. The firm did not object to this recommendation.
Thomas M. Sobol, Esq., from the firm was a member of the PSC. The Courts
review of the firms time records revealed some marketing and client-specific work,
32
especially in the time prior to the MDLs inception. In addition, the firm submitted time
records related to completing plaintiff fact sheets and working on complaints that the
Court does not deem to be common benefit work. Therefore, based on the Courts
de novo review, the Court finds that an award of 9,178 is appropriate.
15. Harke & Clasby, LLP
The firm of Harke & Clasby, LLP, submitted a timely three-page submission and
some time records on behalf of its petition for common benefit attorney fees. The firm
also made a presentation before the CBAFCC. The firm requested a lodestar of
5,789, and the CBAFCC first considered an adjusted lodestar of 5,026. The
CBAFCC awarded the firm a 0.8 multiplier, for an award of 4,021. The firm objected
to this recommendation. After further submissions, the CBAFCC changed the adjusted
lodestar to 5,789.
Lance A. Harke, Esq., a member of the firm, was on the PSC. The firms
three-page submission described the firms work regarding discovery and depositions for
the Clasby bellwether case. The summary details the firms significant role in briefing
associated with Guidants Motions for Summary Judgment and Motion to Strike
Plaintiffs Expert Reports. In addition, the summary describes the firms work on the
Experts Committee and the Allocation Committee. The firm noted that it effectively
shut down work on all other cases for significant periods of time to focus entirely on the
bellwether pretrial preparation and briefing. (H&C at 2.)
The firm objected to the CBAFCCs 0.8 multiplier, noting that, with no
rationalization, the CBAFCC unfairly reduced some firms awards, while increasing
33
other firms awards to significant multipliers. The firm noted that it worked at the
express direction of the LCC for the common benefit. The firm detailed its specific work
toward the common benefit, further expanding on the information set forth in the
three-page submission. The CBAFCC responded to the objection by noting that, given
the limited funds allocated to the common benefit, the CBAFCC awarded the highest
allocation it thought possible.
The Court has reviewed the firms records and finds that some of the time the firm
submitted related to client-specific work, including dealing with plaintiff fact sheets and
reviewing orders that would have been done on an individual client basis. Unfortunately,
the firm did not submit detail for many of its time reports, so the Court often was left
with no meaningful way to assess the firms time. However, based on the Courts own
involvement in the Clasby case, the Court is aware of counsels significant and
appropriate time commitment. Therefore, based on the Courts de novo review, the Court
finds that an award of 4,631 is appropriate.
16. Heins Mills & Olson
The firm of Heins, Mills & Olson, PLC, submitted time records and a timely
three-page submission in support of its petition for common benefit attorney fees. The
firm did not appear before the CBAFCC. The firm submitted a 7,304 lodestar
request. The CBAFCC adjusted this amount to 5,508 after the fee cap and
recommended a multiplier of 0.3, for an award of 8,653. The firm objected to that
recommendation. The CBAFCCs fee cap lodestar was slightly adjusted to 5,617
after further submissions from counsel.
34
Firm member Stacey L. Mills, Esq., was on the PSC. The firms three-page
submission describes how the great majority of the firms submitted time was spent on
discovery. In addition, the firm states that another portion of the firms time was spent
dealing with issues prior to the inception of the MDL, specifically researching matters
that culminated in the Edith Walker complaint, the original case filed in this District.
The firm objected to the CBAFCCs request, stating that the 0.3 multiplier was not
justified when the firm conducted work that was specifically directed by the LCC. The
CBAFCC responded to this objection by stating that it had to place a certain value on the
various types of common benefit work that were performed and that it did not view Heins
Mills Olsons contribution as highly as that of others.
The Courts review of the firms time records revealed some time that was spent
doing client specific-work, reviewing general orders, and working on what the Court
would classify as marketing-related activities, especially prior to the inception of the
MDL. This time cannot be attributed to the common benefit. Yet the firm also submitted
a significant portion of time that was related to document coding and review, time which
is legitimately for the common benefit. Therefore, based on the Courts de novo review,
the Court finds that an award of 6,493 is appropriate.
35
17. Hersh & Hersh
The law firm of Hersh & Hersh submitted time records and an untimely three-page
submission in support of its 7,323 request for common benefit attorney fees. The
firm also appeared before the CBAFCC. The CBAFCC considered an adjusted lodestar
of 7,080. The CBAFCC recommended a 1.1 multiplier for an award of 5,788.
The firm did not object to this recommendation.
The firms three-page submission detailed the firms involvement in the
Minnesota state court litigation, together with the Pearson firm and the Goldenberg &
Johnson firm. Hersh & Hersh filed the Wislocki case that involved a significant remand
motion. The firm stated that it was the de facto leader for the state court litigants in
settlement negotiations.
The Courts review of the firms time records revealed some time that the Court
would attribute to client-related work. In addition, the records included some vague
entries and time for travel to marketing-related activities that occurred, for example, in
Las Vegas, Houston, and Washington, D.C. The remainder of the firms time was
properly attributed to the common benefit. Therefore, based on the Courts de novo
review, the Court finds that an award of 2,726 is appropriate.
18. Hilliard & Munoz, LLP
The firm of Hilliard & Munoz, LLP, submitted time records but no three-page
submission in support of their 9,258 request for common benefit attorney fees. The
firm did not make a presentation to the CBAFCC. The CBAFCC considered an adjusted
lodestar of 4,643. The CBAFCC recommended a 0.2 multiplier for an award of
36
0,929. The firm filed an objection collaboratively with the Ellis Carstarphan firm, as
noted above.
The Courts review of this firms records revealed an unusual amount of time
submitted prior to the inception of the MDL. For example, the firm submitted five hours
per month for research of design defect of Guidant defibrillator model 1861: research of
all Guidant recalled defibrillators from January 2005 through June 2005, even though
the recall first occurred in June 2005. The Court is mystified as to how the firm could
research a recalled device when it had not yet been recalled. The firm also submitted
significant client-related time records.
As noted with the Ellis Carstarphan firm, neither the firm nor the CBAFCC has
provided the Court with any indication as to how the Texas cases were coordinated with
the MDL. In fact, in the Courts view, the work done on the Texas cases was often
directly opposed to the plaintiffs efforts in this MDL. In addition, the Court assumes that
the Texas firms were compensated for their common benefit work through the Texas
settlement. The Texas firms records reveal little, if any, common benefit work for this
MDL. In the Courts view, little of the time submitted by this firm is compensable from
the common benefit. Therefore, based on the Courts de novo review, the Court finds
that an award of ,464 is appropriate.
19. Jennings and Drakulich
The firm of Jennings & Drakulich, LLP, submitted time records and a three-page
submission in support of its petition for Common Benefit Attorney Fees. The firm did
not appear before the CBAFCC. The firm submitted a lodestar request of ,937,869.
37
After the fee cap, the CBAFCC considered a lodestar of ,543,715. The CBAFCC
recommended a multiplier of 1.6 for an award of ,069,944, to which the firm did not
object.
Nicholas Drakulich, Esq., was a member of the PSC. The firms three-page
submission outlines Mr. Drakulichs role as the Leader of the Trial Team, appointed by
the Lead Counsel Committee. It highlighted, among other things, Mr. Drakulichs
contributions taking and defending key depositions, tracking internal Guidant documents
and regulatory submissions, working with testifying experts, and his involvement in
motion practice and trials. In addition, the firm noted Mr. Drakulichs involvement in the
settlement as the special advisor to the negotiating team.
The Court finds that some of the firms time records revealed time that was not
appropriately billed to the common benefit. Such entries include time spent reviewing
and corresponding with media about the Guidant litigation, time spent reviewing
individual complaints (unrelated to the bellwether trials) and client retainers well before
the MDL was commenced, work related to the Senate Finance Committee, time spent
reviewing the Courts orders (which the Court attributes to client work, not common
benefit work), as well as examples of duplicate effort where more than one attorney was
involved unnecessarily. The records also included some blank entries in monthly time
detail reports, for which the Court will not reimburse as common benefit time. In sum,
the Court finds that some of the time spent contained in the firms records cannot be
attributed to common benefit work. Therefore, based on the Courts de novo review, the
Court finds that an award of ,416,529 is appropriate.
38
20. John F. Nevares and Associates
John F. Nevares and Associates submitted a lodestar request of 1,443. The fee
cap did not change the submitted lodestar. The firm did not submit a three-page
submission and did not appear before the CBAFCC. The CBAFCC recommended a
0.025 multiplier for a proposed fee award of ,036. The firm did not object to the
proposed fee award.
Without the benefit of a three-page submission, an objection, or an explanation
from the CBAFCC as to what work Mr. Nevares was asked to do, the Court has no
meaningful way to determine what work Mr. Nevares did at the PSCs request.
Mr. Nevares submitted time records from July 2005 through April 2007. Some of this
time could arguably be attributable to common benefit time, such as researching and
drafting preemption issues and participating in the hearing before the JMPL. The vast
majority of the time submitted appears to be work that was and should have been done on
behalf of individual clients. Examples of this work include reviewing orders and other
filed submissions. Therefore, based on the Courts de novo review, the Court accepts the
CBAFCCs proposed award to Mr. Nevares of ,036.
21. Kellogg Huber Hansen Todd Evans & Figel, PLLC
The firm of Kellogg Huber Hansen Todd Evans & Figel, PLLC, submitted a
timely three-page submission and extensive time records in support of its ,414,533
request for common benefit fees. The firm also presented before the CBAFCC. The
CBAFCC first considered an adjusted lodestar of ,400,966. The CBAFCC
recommended a 0.7 multiplier for an award of ,080,676. The firm objected to this
39
recommendation. Subsequent to the CBAFCC report and after further submissions, the
CBAFCC adjusted the lodestar to ,414,127.
Firm member Silvija Strikis, Esq., was on the PSC and also co-chaired the
Discovery Committee. The firms three-page submission documented the firms
involvement in establishing the MDL and overseeing all of Plaintiffs discovery efforts.
The firm was the principal drafter of every discovery request. The firm was significantly
involved in document coding and training document coders. The firm managed and
supported the deposition discovery process and took a lead role in briefing and court
filings. The firm also documented its integral involvement in trial preparation for the
Duron trial. Finally, the firm noted its direct involvement in the settlement negotiations
and finalizing documents for the settlement.
The firms objection states that all firms should get a lodestar without penalty
before anyone gets a multiplier above their lodestar. The objection notes that the firm has
only 18 of the 8,550 Claimants in this MDL and that the firm has agreed to waive
contingencies as to these eighteen Claimants. The objection reiterates the firms
significant common benefit role in status conferences, discovery, privilege log review,
and deposition coordination. The objection further details the firms role in court filings
and trial preparation for bellwether trials. Finally, the firm describes its significant role in
the settlement negotiations and finalization of the settlement. Notably, the objection
states that even though, as a member of the PSC, Ms. Strikis submitted her time records
on a monthly basis, at no time did the PSC indicate that the firm was performing
unnecessary work.
40
The CBAFCC responded to this objection by stating that the CBAFCCs primary
discount to the firms time was because the firms 12,000 paralegal hours were 2.5 times
as many hours as Zimmerman Reeds entire paralegal staff.
The Courts review of the firms time demonstrated meticulous, outstanding
record-keeping by the firm. The Courts review revealed that a slight amount of the time
submitted was related to what the Court would classify as marketing-related activities.
There is nothing in the record to suggest that the firm was ever told that its time was
excessive or unnecessary. Therefore, based on the Courts de novo review, the Court
finds that an award of ,325,844 is appropriate.
22. Kershaw Cutter & Ratinoff LLP
Kershaw Cutter & Ratinoff, LLP, submitted time records and a timely three-page
submission in support of their petition for Common Benefit Attorney Fees. The firm also
made a presentation to the CBAFCC. The firm submitted a lodestar request of
,327,918. After the fee cap, the CBAFCC considered a lodestar of ,022,994. The
CBAFCC recommended a multiplier of 1.1 for an award of ,125,293, to which the firm
objected. After further submissions from the CBAFCC, the newly adjusted lodestar is
,065,178.
The firms three-page submission detailed its work retaining and developing
experts, staffing the document depository, reviewing and coding documents, taking
depositions, briefing, and preparing for trial. C. Brooks Cutter, Esq., from the firm was a
member of the PSC.
41
The firms extensive objection to the CBAFCCs recommendation expanded
further on the details of the three-page submission and focused, in part, on the wide
multiplier divergence among the nine core firms that ran the litigation, and the inequities
created by the multiplier recommendation and the lodestar reduction. Specifically, the
firm challenged the lack of specificity by which the CBAFCC applied the Courts fee cap
and the CBAFCCs failure to discount fees for duplication of effort by multiple attorneys
at other firms. The firm also asserts that the CBAFCCs methodology appears to unfairly
penalize the firms who used senior lawyers to do their work. Specifically, the firm
suggests that the CBAFCC should have reduced the billing rate of junior associates who
typically bill below 0 an hour to proportionately reflect the fee cap imposed by the
Court. The firm also noted that it is difficult to ascertain the manner in which the fee cap
was applied.
The CBAFCC responded by recognizing Kershaw Cutter & Ratinoffs
exceptional contributions towards the common benefit and Mr. Cutters position as an
integral member of the trial team. (Doc. No. 2871 at 15.) Yet, the CBAFCC considered
this work not as important as the work on settlement negotiations and other related
matters, and it stood by its recommendation to give the firm a 1.1 multiplier.
The Court reviewed the time records submitted by the firm and found that a small
amount of its time submitted was actual client work, including letters and telephone
communications with clients and reading orders that would have been read in the natural
course of work for its clients and thus would be compensated by a contingency fee in the
individual cases. In addition, the firm included in its submission a small number of
42
entries related to drafting complaints, preparing fact sheets, and reviewing medical
records for individual clients.
The Court finds that a small portion of the time submitted by Kershaw Cutter
Ratinoff LLP cannot be attributed to common benefit work. Therefore, based on the
Courts de novo review, the Court finds that an award of ,033,222 is appropriate.
23. Kirtland & Packard, LLP
The law firm of Kirtland & Packard, LLP, submitted a lodestar request of ,210.
The fee cap did not change the firms lodestar request. The firm did not submit a
three-page submission or appear before the CBAFCC. The CBAFCC recommended a
0.1 multiplier for a proposed fee award of ,421. The firm did not object to the
proposed fee award.
Without the benefit of three-page submission, an objection, or an explanation from
the CBAFCC as to what work the firm was asked to do, the Court has no meaningful way
to determine what work the firm did at the PSCs request. The firm submitted time
records for the period from June 2005 through December 2006. The Courts review of
the firms time records reveals a significant amount of time that cannot be attributed
directly to common benefit work. For instance, there are several entries related to
correspondence with associate counsel or co-counsel. Such entries, without more, do
not amount to common benefit work. There is, however, a small amount of time for
document review that can be attributable to common benefit work. Therefore, based on
the Courts de novo review, the Court finds that an award of ,421 is appropriate.
43
24. Klafter & Olsen, LLP
The law firm of Klafter & Olsen, LLP submitted a lodestar request of 8,354.
After the fee cap, the CBAFCC originally considered a lodestar of 5,035. The firm
submitted a timely three-page submission and appeared before the CBAFCC. The
CBAFCC recommended a 1.0 multiplier, to which the firm objected. Subsequent to the
CBAFCC report, the CBAFCC adjusted the lodestar to 7,825.
The firms three-page submission details the firms involvement with the first
Guidant class action case filed in this Court and with the firms extensive briefing filed
with the Court. Jeffrey Klafter, Esq., was appointed as the co-chair of the Law and
Briefing Committee. As co-chair, Mr. Klafter was involved with, among other things,
drafting the Client Questionnaire, researching the viability of certain claims, drafting the
Master Complaint, and opposing Guidants preemption summary judgment motion and
Guidants motion to dismiss. In addition, the firm was involved with researching and
drafting briefs for various significant legal issues during 2007, in advance of the first
bellwether trial.
In its objection, the firm reiterated many of the points made in its three-page
submission and noted that, in effect, it was receiving a negative 0.71 multiplier on its
pre-adjusted time. It also stated that all of the work the firm performed was requested by
the LCC and that a 1.0 multiplier does not compensate it for the risk it was subjected to
by agreeing to perform certain tasks. Finally, the firm objected to the CBAFCCs award
of larger multipliers to certain firms and to the committees explanation that those
multipliers were awarded after considering what work mattered.
44
The CBAFCC responded to the firms objection by stating that while its work was
of the highest quality, it was focused only on 6 briefing issues over a limited period of
time. (Doc. No. 2871 at 15.) For that reason, the CBAFCC believed that the
recommendation was appropriate.
The Court has considered the firms records and submissions and finds that most
of the firms time reflects work that is properly attributed to the common benefit. Yet a
small amount of time the firm submitted early in the MDL cannot be attributed to
common benefit work. Therefore, based on the Courts de novo review, the Court finds
that an award of 2,933 is appropriate.
25. Lawrence E. Feldman & Associates
Lawrence E. Feldman & Associates submitted a lodestar request of ,582. The
fee cap did not change the firms lodestar request. The firm did not submit a three-page
summary or appear before the CBAFCC. The CBAFCC recommended a 0.1 multiplier
for a proposed fee award of ,758. The firm did not object to the proposed fee award.12
Without the benefit of a three-page summary, an objection, or an explanation from
the CBAFCC as to what work the firm was asked to do, the Court has no meaningful way
to determine what work the firm did at the PSCs request. Much of the firms submitted
12 On December 18, 2009, the firm submitted an affidavit describing the firms
common benefit work along with additional time records. The firm explained that it was
submitting this information now because it somehow did not receive e-mail notification
of the CBAFCC Report, although the firm has received all other notices. Whether
characterized as a supplement or an objection, this submission is untimely and will not be
considered. If it had been considered, the Courts decision would not have been changed
by the submission.
45
time was incurred prior to the inception of the MDL. Moreover, the Courts review of
the time records reveals a significant amount of time that cannot be attributed directly to
common benefit work. For instance, there are several entries prior to the MDLs
inception related to reviewing news articles, gaining background on Guidants devices,
and reviewing recently filed cases. This work should have been done for individual
cases. There is, however, some work with respect to obtaining an expert for the MDL
and discovery that can be attributable to common benefit work. Therefore, based on the
Courts de novo review, the Court finds that an award of ,032 is appropriate.
26. Levin Papantonio Thomas Mitchell Echsner & Proctor, PA
Levin Papantonio Thomas Mitchell Echsner & Proctor, PA, submitted an untimely
three-page submission and time records on behalf of its petition for common benefit fees.
The firm also appeared before the CBAFCC. The firm requested a lodestar of 6,120.
The CBAFCC considered an adjusted lodestar of ,095 and recommended a 0.3
multiplier for a total award of ,529. The firm did not object to this recommendation.
The firms three-page submission noted the firms participation in document
review, its response to Guidants summary judgment motion, and its preparation of some
guidelines for use in the Allocation Committee process. The firm also noted its
200 case-inventory filings and its requests for medical records. Timothy M. OBrien,
Esq., from the firm was on the PSC.
The Court finds that a significant portion of the firms time is not attributable to
the common benefit. Specifically, the Court found entries for pre-MDL time that the
Court would classify as marketing-related activities, some client-specific work, and other
46
vague entries that are not attributable to the common benefit. A large case inventory in
itself does not result in common benefit time. The Court also notes that many of the
firms document review entries were vague and did not describe for whom the document
review occurred. Yet the firm did submit other time that was related to bellwether trial
depositions and document coding and review that is justifiably common benefit time.
Therefore, based on the Courts de novo review, the Court finds that an award of ,547
is appropriate.
27. Levin Simes Kaiser and Gornick, LLP
The firm of Levin Simes Kaiser and Gornick, LLP, submitted a timely three-page
submission and time records in support of its petition for common benefit fees. The firm
did not appear before the CBAFCC. The firm requested a lodestar of ,087. The
CBAFCC considered an adjusted lodestar of ,800 and recommended a 0.5 multiplier
for ,400. The firm did not object to this recommendation.
The firms three-page submission describes the firms 274 Guidant cases, 150 of
which were filed in Ramsey County, Minnesota. The firm stated that it only requested
attorney time but did not submit any paralegal or administrative time in its common
benefit request. The firm noted its discovery requests that were served with each
complaint. The firm also detailed its time coordinating discovery for purposes of the
Minnesota state cases, organizing the document depository for state court litigants, and
the firms efforts to coordinate the state court litigants. The firm also noted its role in the
settlement for state court litigants. The firm asserted that it did not submit its time related
to travel or conference calls.
47
The Court found that some of the firms submitted time related to case-specific
matters. Although the Courts review would have been easier had the firm provided
better detail on its time records, it appears to the Court that most of the firms work was
related to the work the firm did for the common benefit. Therefore, based on the Courts
de novo review, the Court finds that an award of ,600 is appropriate.
28. Lieff Cabraser Heimann & Bernstein, LLP
The firm of Lieff Cabraser Heimann & Bernstein, LLP, submitted very detailed
time records and a timely three-page submission in support of its petition for Common
Benefit Attorney Fees. The firm did not appear before the CBAFCC. Lieff Cabraser
submitted a lodestar request of ,465,429. After the fee cap adjustment, the CBAFCC
considered a lodestar of ,398,895. The CBAFCC recommended a multiplier of 1.6 for
an award of ,838,232, to which Lieff Cabraser did not object.
The firms three-page submission detailed the firms work initiating the MDL
proceedings with the Judicial Panel on Multidistrict Litigation, Elizabeth Cabrasers
extensive work on the LCC, and partner Wendy Fleishman, Esq.s, active participation in
the litigation. The firm also described its work negotiating and drafting early case
management orders and plaintiffs fact sheets, the Master Complaint, and bellwether trial
and plaintiff selection processes. In addition, the firm described its extensive work in
motion practice and pre-trial work.
The Courts review of the firms extensive and detailed records revealed that
nearly all of the time submitted was attributable to the common benefit. The firms
submissions included a slight amount of time related to completing client-specific fact
48
sheets and time spent attending the ATLA conference, which the Court views as
marketing-related activities. Therefore, based on the Courts de novo review, the Court
finds that an award of ,374,906 is appropriate.
29. Lockridge, Grindal, Nauen, P.L.L.P.
Lockridge, Grindal, Nauen, P.L.L.P., submitted a lodestar request of ,055,206.
After the fee cap, the CBAFCC considered a lodestar of ,842,975. The firm submitted
a timely three-page summary and appeared before the CBAFCC. The CBAFCC
recommended a 0.6 multiplier for a proposed fee award of ,105,785, to which the firm
did not object.
Richard Lockridge, Esq., was a member of the PSC. The firms three-page
submission reveals that its common benefit work falls into four categories, all of which
were performed at the PSCs request. Specifically, PSC members Hunter Shkolnik, Esq.,
and Nick Drakulich, Esq., directed the firms review of scientific-related documents, and
they asked the firm to prepare cross-examination outlines for Dr. Robert Hauser.
Moreover, one of the firms attorneys, Rob Shelquist, worked extensively with the
bellwether trial team with respect to the choice-of-law issues surrounding jury
instructions. Finally, the firm was extensively involved with the settlement allocation
process, especially given their recent Medtronic MDL experience. The firm asserts that
its work for the common benefit precluded or limited its ability to do work on other
matters.
The Courts review of the firms time records reveals that a small portion of the
time records submitted did not relate to common benefit work. This work included work
49
that should have been done for the firms individual cases such as file management,
completing plaintiff fact sheets, and reviewing PTOs. Some of this time was also
incurred several months before the inception of the MDL and cannot be directly
attributable to the common benefit. Rather, it appears to be marketing-type work that the
Court does not consider to be common benefit work. Therefore, based on the Courts de
novo review, the Court finds that an award of ,750,826 is appropriate.
30. Locks Law Firm
The Locks Law Firm submitted very detailed time records and a timely three-page
submission and appeared before the CBAFCC in support of its petition for Common
Benefit Attorney Fees. The firm submitted a lodestar request of ,076,127. After the
fee cap adjustment, the CBAFCC considered a lodestar of ,513,525. The CBAFCC
recommended a multiplier of 1.5 for an award of ,270,288, to which the Locks Law
Firm objected.
The firms three-page submission describes in detail attorney Seth R. Lessers
work on the LCC. The summary summarizes Mr. Lessers vast oversight role on nearly
all plaintiffs work. In addition, the summary details Mr. Lessers work briefing and
arguing various motions, participating in status conferences, and actively negotiating in
the settlement, among many other tasks.
The firms objections to the CBAFCCs recommendation centers primarily on the
inequities of the CBAFCCs methodology in determining the lodestar after fee cap and in
determining the qualitative multipliers. First, the firm noted that although the CBAFCC
adjusted the higher-paid attorneys to a 0 fee cap, per the Courts instruction, the
50
CBAFCC did not proportionately adjust the fees for those attorneys making less than
0 per hour. The objection pointed out that this resulted in a situation where the hourly
rates were disproportionately skewed for lesser-paid attorneys and staff. Second, the
objection noted that the qualitative multipliers set forth by the CBAFCC amplified the
disproportions of the fee cap. Third, the objection described the CBAFCCs failure to
take into account duplicative law firm work. Ultimately, the objection asked that the
Court consider the allocation of large qualitative multipliers for a small number of firms,
while other firms took cuts in their lodestars. The objection included some global
suggestions as to how the Court could deal with these inequities.
In response to the objection, the CBAFCC stated that the objection did not
appropriately take into account various firms relative contributions to the common
benefit. In addition, the CBAFCC noted that the spread between the lodestar and final
awards was significantly more compressed than in other MDLs.
The Courts review of the firms detailed records showed very little time that was
not directly attributable to the common benefit. Specifically, the firm included some time
entries that were related to individual client-related work and a slight bit of time that
could be attributed to marketing-related activities. Otherwise, nearly all of the firms
time was appropriately submitted as common benefit work. Therefore, based on the
Courts de novo review, the Court finds that an award of ,498,389 is appropriate.
51
31. Lopez, Hodes, Restaino, Milman & Skikos and Lopez McHugh,
LLP
Lopez, Hodes, Restaino, Milman & Skikos (Lopez Hodes) submitted a lodestar
request of 6,275. After the fee cap, the CBAFCC considered a lodestar of 4,180.
Lopez McHugh, LLP (Lopez McHugh) submitted a lodestar request of 4,340.
After the fee cap, the CBAFCC considered a lodestar of 3,440. Lopez Hodes
submitted a timely three-page submission and appeared before the CBAFCC. Lopez
McHugh did not submit a three-page submission or appear before the CBAFCC. Ramon
R. Lopez, Esq., formally of Lopez Hodes and now of Lopez McHugh, was a member of
the PSC.13 The CBAFCC recommended a 0.5 multiplier for a proposed fee award of
2,090 for Lopez Hodes, and the CBAFCC recommended a 0.1 multiplier for a
proposed fee award of ,344 for Lopez McHugh. Lopez Hodes and Lopez McHugh
submitted a joint objection to the proposed fee awards.
In its three-page summary, Lopez Hodes explains that several members of its firm,
including Mr. Lopez, Thomas Schultz, Esq., and Kyle Lakin, Esq., performed a
significant amount of common benefit work. Lopez Hodes grouped its work into four
categories: (1) the initial MDL formation process; (2) the early MDL period prior to the
trial selection process; (3) the trial selection process, including having one of its clients,
Leopold Duron, chosen as a bellwether plaintiff; and (4) preparing Mr. Durons case for
trial. Lopez Hodes then provided more detail with respect to each category. Specifically,
13 Lopez Hodes three-page summary suggests that Dave Suggs and Janet Abaray
were also members of the PSC. This is incorrect.
52
with respect to Mr. Durons case, Lopez Hodes acted as primary or secondary counsel on
18 depositions, prepared materials for summary judgment motions, and assisted with trial
preparation.
In their joint objection, Lopez Hodes and Lopez McHugh (collectively, Lopez)
take issue with the CBAFCCs methodology. Lopez asserts that the CBAFCC did not
apply the Johnson factors. Taking issue with the CBAFCCs secret deliberations, Lopez
asks the Court to grant all interested parties access to all submissions to the CBAFCC and
to any documents that reflect the CBAFCCs decision-making process. The CBAFCC
responds that Lopez is merely raising procedural objections that should be denied
because the CBAFCC asserts that it adhered to the CBAFCC Policies, Procedures,
Protocols, and Guidelines for Allocation of the Common Benefit Attorney Fee Fund and
the Common Cost Fund. The CBAFCC then stated:
The committee acknowledges the [Lopez Hodes] firm for the important
contributions it made toward the common benefit. Thomas Schultz and
Kyle Lakin were valuable contributors to the team that prepared Mr.
Durons case for the first bellwether trial. Mr. Ramon Lopez and Mr. Steve
Skikkos played important roles in settlement coordination and the late state
re-negotiations. The firms however did not make significant contributions
toward certain other important aspects of the case, such as legal research,
writing, argument and the continuous management and suppose of the
litigation, which also required expenditure of substantial time, effort and
skill. The committee took these factors into consideration in makings its
recommended awards. For the above reasons, the Committee believes that
the recommended allocations are appropriate.
(Doc. No. 2871 at 18-19.) Lopez submitted a reply to the CBAFCCs response. In that
reply, Lopez focuses on the fact that nothing in the Courts prior orders, the PSC
communications, or the CBAFCCs statements suggest that law firms would be awarded
53
negative multipliers if they did not participate in all aspects of the litigation. Lopez also
questions the CBAFCCs reasoning with respect to other law firms that did not
participate in all aspects of the litigation but nonetheless received larger multipliers than
did Lopez.
The Courts review of Lopez Hodes time records reveals that a portion of the time
submitted was non-common benefit time incurred prior to the inception of the MDL.
That time included reviewing press and law review articles, attending an ATLA
conference, and general background work. The Court does not consider much of this to
be common benefit time, as any attorney would have performed many of those activities
prior to filing a complaint. However, it is also apparent that some of the coordination and
research efforts during that time directly benefited the common benefit. For that reason,
the Court will consider some of the time submitted prior to the inception of the MDL to
be common benefit work. Much of the remaining time entries can be attributed to
common benefit work. This work included preparing Mr. Durons case, reviewing
documents, and responding to various motions. Other work that is not attributable to the
common benefit includes reviewing the Courts PTOs, something all attorneys should
have done; organizing files; and completing plaintiff fact sheets. Therefore, based on the
Courts de novo review, the Court finds that an award of 5,637 for Lopez Hodes is
appropriate.
The Courts review of Lopez McHughs time records reveals that the majority of
the submissions can be directly attributable to common benefit work, specifically related
to Mr. Durons trial preparation and settlement negotiations. Nothing in the record
54
suggests that Lopez McHugh was not asked to perform this work or did not do it.
Therefore, based on the Courts de novo review, the Court finds that an award of
7,768 for Lopez McHugh is appropriate.
32. Martin & Jones
The firm of Martin & Jones submitted a timely three-page submission in support
of their request for common benefit fees. The CBAFCC considered an adjusted lodestar
of 3,025. The CBAFCC recommended a 0.2 multiplier for an award of ,605. The
firm did not object to this recommendation.
The firms three-page submission details the firms involvement in screening and
selecting four potential bellwether cases. In one case, the firm conducted depositions.
Notably, the firm stated that it works entirely on a contingency fee basis, so it prepared
documentation based on the likely amount of time that a task would have taken. The firm
submitted no time records.
Although the firm has not submitted any time records, there is nothing in the
record to suggest that the firm did not perform at least a minimal amount of work with
regard to the bellwether cases, as suggested in the firms summary. The Court is
unsympathetic to the firms assertion that it did not keep records because the firm does
not typically bill time. This may be the case for the great majority of firms that
participated in this MDL. Therefore, based on the Courts de novo review, the Court
finds that an award of ,302 is appropriate.
55
33. Martha Wivell
Martha Wivell, Esq., submitted time records and a late three-page submission on
behalf of her petition for common benefit fees. She submitted a request for 5,457.
After the fee cap, the CBAFCC considered a lodestar of 5,800. The CBAFCC
recommended a 0.5 multiplier for an award of ,900, to which Ms. Wivell did not
object.
Ms. Wivell, a solo practitioner, described her involvement in the remand motion
for the Machalowski case, which allowed the state court litigation to go forward. She
also was involved in consolidating the Minnesota state court cases and served on the
PSCs Law Committee.
The Court reviewed Ms. Wivells time records and found that although most of
Ms. Wivells time appeared to be directly related to the common benefit, a portion of the
time related to the Machalowski remand motion appeared to be excessive. Therefore,
based on the Courts de novo review, the Court finds that an award of ,480 is
appropriate.
34. Mason Law Firm
The Mason Law Firm submitted a lodestar request of ,718. With the fee cap,
the CBAFCC considered an adjusted lodestar of ,717. The firm did not submit a
three-page summary and did not appear before the CBAFCC. The CBAFCC
recommended a 0.2 multiplier for a proposed fee award of ,343. The firm did not
object to the proposed fee award.
56
Without the benefit of a three-page summary, an objection, or an explanation from
the CBAFCC as to what work the firm was asked to do, the Court has no meaningful way
to determine what work the firm did at the PSCs request. Yet the firms records include
time entries that appear to be common benefit work, specifically time spent related to
reviewing and coding documents. Therefore, based on the Courts de novo review, the
Court will accept the CBAFCCs recommendation and award the firm ,343.
35. Milberg Weiss
Milberg Weiss submitted a lodestar request of 3,198. After the fee cap, the
CBAFCC considered a request of 9,388. The firm submitted an untimely three-page
submission and did not appear before the CBAFCC. The CBAFCC recommended a 0.2
multiplier for a proposed fee award of ,878. The firm did not object to the proposed
fee award.
The firms records include some time entries that appear to be common benefit
work, specifically time spent with respect to the bellwether process. One of Milbergs
clients was Joyce Valls, who was selected as a bellwether plaintiff. Given the Courts
involvement in the bellwether process and its familiarity with the trial process, the Court
concludes that some of Milbergs time is directly attributable to the common benefit.
Therefore, based on the Courts de novo review, the Court finds that an award of ,816
is appropriate.
57
36. Neblett, Beard & Arsenault, LLP
Neblett, Beard & Arsenault, LLP, submitted a lodestar request of ,433,975.
After the fee cap, the CBAFCC considered a lodestar of ,069,225. The firm submitted
a timely three-page submission and appeared before the CBAFCC. The CBAFCC
recommended a 1.6 multiplier for a proposed fee award of ,310,760. The firm did not
object to the proposed award.
Richard Arsenault, Esq., was a member of the LCC. The firms three-page
submission is directed at Mr. Arsenaults activities. The submission describes in detail
the management challenges presented by this MDL, and it explains the integral role
Mr. Arsenault took in dealing with those challenges. The submission explains that
Mr. Arsenault, as a member of the LCC, shared the responsibility to assign, oversee and
monitor all PSC activities. Given this, Mr. Arsenault helped to coordinate extensive
discovery, document review, motion briefing, and oral argument. Among other things as
detailed in a bullet-point list in the three-page submission, Mr. Arsenault also personally
assisted with expert witnesses, bellwether candidates, trial preparation, and settlement
negotiations.
The firms submission specifically mentions that Mr. Arsenault performed the
majority of these tasks, as opposed to others in his firm acting in any duplicative
capacity. For the most part, the Court agrees with this assessment. In its de novo review
of the firms records, the Court was struck by the level of detail of most of the time
entries, especially by Mr. Arsenault. Such detail gave the Court more than sufficient
information on which to judge whether work performed was indeed performed for the
58
common benefit. The Court notes that Mr. Arsenault was a significant point person for
the Court throughout the litigation. The Court did, however, observe a few instances
where the firm submitted time that appeared to be duplicative work associated with
attending depositions by other members of the firm. Therefore, based on the Courts
de novo review, the Court finds that an award of ,028,840 is appropriate.
37. Parker, Waichman Alonso, LLP
The law firm of Parker Waichman Alonso, LLP, submitted a lodestar request of
,306. After the fee cap, the CBAFCC considered a lodestar of ,700. The firm
submitted an untimely three-page submission and appeared before the CBAFCC. The
CBAFCC recommended a 0.4 multiplier for a proposed fee award of ,280. Parker did
not object to the proposed fee award. After further submissions, the CBAFCC readjusted
the lodestar to ,700.
The firms three-page submission explains that the PSC asked the firm to
participate in both the Discovery and Law and Briefing Committees. Specifically, the
firm reviewed, analyzed, and summarized reports contained in the Manufacturer and User
Facility Device Experience Database (MAUDE); drafted memoranda regarding
emotional distress claims, breach of warranty claims, and other specific causes of action
under certain states laws; and assisted in responding to portions of Guidants motion to
dismiss.
The Courts review of the firms time records reveals that nearly all of the time
submitted is directly attributed to common benefit work for either the Discovery
Committee or the Law and Briefing Committee. There is nothing in the record to suggest
59
that the firm was not asked to do this work or did not perform this work. Therefore,
based on the Courts de novo review, the Court finds that an award of ,530 is
appropriate.
38. Pearson Randall & Schumacher PA
Pearson Randall & Schumacher PA submitted a timely three-page submission and
time records in support of its request for common benefit attorney fees. The firm also
appeared before the CBAFCC. The firm submitted a lodestar request of 2,454. The
CBAFCC considered a lodestar after application of the fee cap of 0,554. Then, the
CBAFCC recommended a multiplier of 1.2 for a total award of 6,665. The firm did
not object to this recommendation.
The firms three-page submission detailed the role of Gale D. Pearson, Esq., as
State Liaison Counsel in the MDL. In that role, the firm was responsible for receiving,
coordinating, and distributing all pleadings, documents, and notices between the Court,
Guidant, and the State Court Plaintiffs. The firm also played a large role in coordinating
discovery and deposition review, monitoring MDL hearings and other state court
proceedings, dealing with legal issues related to the state court litigation and removal
issues, and selecting and preparing state court bellwether plaintiffs, among other work.
In addition, the firm played a significant role in the settlement negotiations.
The Court reviewed the firms billing records and reduced some time for
client-specific activities, excessive time, and duplicative work. Otherwise, most of the
firms work can be attributed to the common benefit. Therefore, based on the Courts
de novo review, the Court finds that an award of 1,526 is appropriate.
60
39. Preti, Flaherty, Beliveau, Pachios & Haley, LLP
Preti, Flaherty, Beliveau, Pachios & Haley, LLP, submitted a lodestar of ,126.
After the fee cap, the CBAFCC considered a lodestar of ,125. The firm submitted a
timely three-page submission and appeared before the CBAFCC. The CBAFCC
recommended a 0.2 multiplier for a proposed fee award of ,225, to which the firm
objected.
The firms three-page submission explains that the firm performed class action
work on behalf of its clients and class of purchasers, work that contributed to the
common benefit. Members of the firm also served on the Experts and Science
Committee. In addition, one of the firms clients was a potential bellwether plaintiff so
the firm performed work associated with her deposition, and the firm assisted in the
preparation of another potential bellwether plaintiff.
In its objection, the firm contends that the disparity of the proposed multipliers is
the product of inherent conflicts of interest that shock the conscience. The firm calls for
an independent arbiter to conduct a de novo review of the common benefit fee
applications. The CBAFCC responds that the firms objection only raises procedural
concerns that should be disregarded, given that the Court appointed the CBAFCC.
The Courts review of the records shows submissions that reflect a significant
amount of time spent on individual client matters. For example, the time records include
time completing and correcting plaintiff facts sheets for individual clients;
communicating with local counsel and co-counsel; registering for ECF, organizing files,
addressing service issues, and reviewing billing; research concerning different states
61
contingency fee statutes and correspondence with referral counsel regarding contingency
fees; and reviewing the MSA. The time records also contain vague entries such as
background research, analysis of factual and legal issues, case planning and next steps
that cannot be directly attributed to common benefit work, especially since the majority
of such time was expended prior to the formation of the MDL. The time records also
reflect that the firm did indeed perform some common benefit work with respect to
bellwether and expert issues. Therefore, based on the Courts de novo review, the Court
finds that an award of ,062 is appropriate.
40. Price, Waicukauski & Riley, LLC
Price, Waicukauski & Riley, LLC submitted a lodestar request of ,855. After
the fee cap, the CBAFCC considered a lodestar of ,034. The firm submitted a timely
three-page submission but did not appear before the CBAFCC. The CBAFCC
recommended a 0.3 multiplier for a proposed fee award of ,610. The firm did not
object to the proposed fee award.
The firms three-page submission explains that William N. Riley, Esq., was
invited to join the Third Party Payer (TPP) Committee. As part of the TPP Committee
and at the PSCs request, members of the firm conducted research regarding breach of
warranty claims and choice-of-law analysis for all fifty states. In addition, the firm
assisted in responding to sections of Guidants motion to dismiss and drafting a motion
for reconsideration.
The Courts review of the firms time records reveals that nearly all of the time
submitted is directly attributed to common benefit work for the TPP Committee. There is
62
nothing in the record to suggest that the firm was not asked to do this work or did not
perform this work. There was, however, some time that the Court finds excessive in light
of the nature of the tasks reported. Therefore, based on the Courts de novo review, the
Court finds that an award of ,525 is appropriate.
41. Pritzker Ruohonen & Associates, PA
Pritzker Ruohonen & Associates, PA, submitted a lodestar request of ,263.
After the fee cap, the CBAFCC considered a lodestar of ,000. The firm did not submit
a three-page submission or appear before the CBAFCC. The CBAFCC recommended a
0.2 multiplier for a proposed fee award of ,000. The firm did not object to the
proposed fee award.
Without the benefit of a three-page summary, an objection, or an explanation from
the CBAFCC as to what work the firm was asked to do, the Court has no meaningful way
to determine what work the firm did at the PSCs request. This is especially true since
the firms time records do not specifically describe how the work was directed at the
common benefit. There are, however, some time entries that appear to be common
benefit work. Therefore, based on the Courts de novo review, the Court will accept the
CBAFCCs recommendation and award the firm ,000.
42. Rheingold Valet Rheingold Shkolnik & McCartney LLP
Rheingold Valet Rheingold Shkolnik & McCartney LLP submitted time records
and a timely three-page submission in support of its request for Common Benefit
Attorney Fees. The firm also made a presentation to the CBAFCC. The firm submitted a
lodestar request of ,892,343. After the fee cap adjustment, the CBAFCC considered a
63
lodestar of ,015,400. The CBAFCC recommended a multiplier of 1.6 for a
recommended award of ,624,640. The firm did not object to this recommendation.
Hunter J. Shkolnik, Esq., was on the PSC. The firms three-page submission
describes, primarily, Mr. Shkolniks extensive work on the MDL. Specifically,
Mr. Shkolniks work included, among other things, discovery, deposing key witnesses,
drafting pleadings, motion practice, and being a leader of the trial team. Notably, the
firm stated that it did not submit any advisory time billed by Paul Rheingold, Esq., or
500 hours of paralegal time incurred in trial preparation work.
The firms time records revealed some work that is not attributable to the common
benefit. Specifically, the Court noted some vague time entries, instances of specific
client intake work, work incurred prior to the inception of the MDL that was either
non-critical or duplicative of similar time spent by other attorneys at other firms, and
some work that the Court would attribute to marketing. In addition, the Court has
reduced for some time that was billed for travel delays. Most of the time the firm
submitted, however, is properly attributed to the common benefit. Therefore, based on
the Courts de novo review, the Court finds that an award of 4,630 is appropriate.
43. Robinson Calcagnie & Robinson, Inc.
The firm of Robinson Calcagnie & Robinson, Inc., submitted time records but no
three-page submission in support of its request for attorney fees. The firm did not make
an appearance before the CBAFCC. The firm requested 9,763. The CBAFCC
adjusted the lodestar to 4,568, and it recommended a 0.5 multiplier for an award of
64
2,284. The firm did not object to this award. The CBAFCC subsequently adjusted
the lodestar to 9,761.
In the absence of a three-page submission, the Court has no meaningful way to
classify the time that was asked of the firm for the common benefit. As a result, the
Court relied solely upon its own review of the firms time records. The Courts review
revealed a significant portion of time spent reviewing orders, work that the Court would
deem to have occurred outside of the realm of common benefit work. In addition, the
records showed some time that the Court would attribute to marketing-related activities,
such as attending an ATLA conference. Therefore, based on the Courts de novo review,
the Court finds that an award of 4,740 is appropriate.
44. Russ Abney
Russ Abney, Esq., submitted incomplete time records but no three-page
submission in support of his 7,190 request for common benefit attorney fees.
Mr. Abney did not appear before the CBAFCC. The CBAFCC considered an adjusted
lodestar of 4,200. The CBAFCC recommended a 0.2 multiplier for an award of
,840. The firm objected to this recommendation in conjunction with the Ellis
Carstarphan and Hilliard Munoz firms, as addressed within the summary for the Ellis
Carstarphan firm, above.
Absent a three-page submission and more detailed time records, the Court had a
difficult time doing a meaningful review of this firms time. However, the firm did
submit some time records detailing the firms time related to attending mediation with
Guidant in Minnesota. In the Courts view, little of the time submitted by this firm is
65
compensable from the common benefit. Therefore, based on the Courts de novo review,
the Court finds an award of ,420 appropriate.
45. Schiffrin Barroway Topaz & Kessler, LLP
The firm of Schiffrin Barroway Topaz & Kessler, LLP, submitted time records
but no three-page submission in support of its request for common benefit fees. The firm
did not give a presentation to the CBAFCC. The firm submitted a request for
,204,324. The CBAFCC considered an adjusted lodestar of 9,230. The CBAFCC
recommended a 0.2 multiplier for an award of 3,846. The firm objected to this
award.
The firms objection notes that Tobias L. Millrood, Esq., formerly of the firm, was
on the PSC, where he discussed strategy issues and attended meetings of the PSC. The
firm stated that Mr. Millrood kept well apprised of all of the issues in this case. In
addition, the firm notes that an associate at the firm served on the Law and Briefing
Committee and assisted in drafting the Master Complaint. Finally, the firm asserts that it
retained several full-time contract attorneys to assist in document review.
The CBAFCC responded to this objection by stating that it placed a qualitative
valuation on the firms work and did not value the document coding as greatly as other
tasks performed in the litigation. In addition, the CBAFCC noted that some of the firms
time was spent staying apprised of the case, work that could not be attributed to the
common benefit.
The Courts review of the firms time records revealed a significant time spent
reviewing materials that the Court does not attribute to the common benefit. In addition,
66
the files reveal some time spent doing client-related work, time that the Court would
regard as marketing activities, and time that the Court deems excessive and duplicative in
light of the nature of the work performedspecifically, the time spent working on the
master complaint. Further, the majority of the firms time spent on document review was
not detailed in the time entries and merely noted up to ten hours a day for document
review which, on its face, seems excessive. Therefore, based on the Courts de novo
review, the Court finds that an award of 8,461 is appropriate.
46. Schneider & Wallace
The firm of Schneider & Wallace submitted an untimely three-page submission
and time records on behalf of its petition for common benefit attorney fees. The firm also
appeared before the CBAFCC. The firm requested ,381 and, after the fee cap, the
CBAFCC considered an adjusted lodestar of ,380. The CBAFCC recommended a 0.2
multiplier for an award of ,476. The firm objected to this recommendation.
Subsequent to the report, and after further submissions, the CBAFCC considered a new
adjusted lodestar of ,380.
The firms summary addresses the firms work in researching and drafting an
opposition to Guidants motion to dismiss the master complaint. The firm also drafted a
motion for sanctions and participated in document coding. The firms objection focused
on the inherent conflict in allowing CBAFCC members to award themselves higher
multipliers while other firms lodestars were significantly reduced. In their articulate
objection, the firm argued that no firm should be awarded a multiplier greater than 1.0
unless each firms lodestar is paid on a dollar-for-dollar basis. Finally, the firm noted
67
that all of the work done by Schneider & Wallace was done at the request of the PSC and
that the CBAFCC should not now argue that that work was superfluous. The CBAFCC
responded to this objection by noting that its discount of the firms lodestar was related to
the CBAFCCs qualitative valuation of the firms work compared with that of other
firms.
The Courts review of the firms time revealed that nearly all time submitted was
related to the common benefit. The firm did submit some vague entries such as review
documents that the Court cannot evaluate as to the common benefit value. Therefore,
based on the Courts de novo review, the Court finds that an award of ,923 is
appropriate.
47. Seeger Weiss LLP
The firm of Seeger Weiss LLP submitted time records and an untimely three-page
submission in support of its petition for 1,278 of common benefit fees. The firm did
not appear before the CBAFCC. The firm had a member, Christopher A. Seeger, Esq.,
on the PSC. The CBAFCC considered an adjusted lodestar of 1,163 and awarded a
multiplier of 0.7, for an award of 0,814. The firm did not object to this
recommendation.
The firms three-page submission details the firms work deposing key witnesses
and retaining experts. The firm also served on the Expert and Legal Research and
Briefing Committees. In addition, the firm contributed significantly to document review.
The firm also located and developed at least one significant witness.
68
The Courts review of the firms time records demonstrated some time incurred
prior to the inception of the MDL that the Court would attribute to client-specific, not
common benefit, work. In addition, a small portion of the time entries were rather vague
and left the Court with no meaningful way to determine whether the work was common
benefit work. But for the most part, the firms time was attributable to common benefit
work. Therefore, based on the Courts de novo review, the Court finds that an award of
1,046 is appropriate.
48. Sheller, Ludwig & Badey
Sheller, Ludwig & Badey submitted time records and a timely three-page
submission in support of its request for common benefit fees. The firm did not appear
before the CBAFCC. The CBAFCC considered an adjusted lodestar of 5,320. The
CBAFCC awarded a 0.1 multiplier for an award of ,532. The firm objected to this
award.
The firms three-page submission details its work on its cases which ended up
being selected as bellwether cases in state court. For these cases, the firm appears to have
engaged in discovery and significant work regarding litigation strategy and analysis. The
firm prepared certain witnesses for depositions and retained experts for the matters. The
firm also noted its involvement in the Machalowski preemption issue.
The firms objection again noted the firms participation in document review and
its work related to a bellwether case. Specifically, the firm stated that it engaged in
investigation and research, discovery, and litigation strategy discussions for this case. In
addition, the firm stated that it reviewed pleadings and prepared witnesses for their
69
depositions related to this case. The firm also requested certain discovery from the
CBAFCC related to the CBAFCCs recommendation.
The CBAFCC responded by acknowledging that the firm did indeed work with
local counsel on a remand motion and assisted in the efforts for a bellwether plaintiff.
The CBAFCC also responded that the firms participation in document review and
coding was limited, and that the firm had only logged into the document system four
times during the litigation.
Based on the Courts review of the firms time records, the Court found that a
large portion of the time that the firm reported was related directly to client-specific work
and obviously not the common benefit. Yet, the firm did document some hours spent on
document review and coding. The Court finds that this time is appropriately
compensated by the common benefit. Therefore, based on the Courts de novo review,
the Court finds that an award of ,000 is appropriate.
49. The Schmidt Firm, LLP
The Schmidt Firm, LLP, submitted some summary records and a timely
three-page submission in support of its common benefit attorney fee application,
requesting a lodestar of 5,436. The firm did not appear before the CBAFCC. The
CBAFCC considered an adjusted lodestar of 5,036 after the fee cap. The CBAFCC
recommended a multiplier of 0.5, for a total of ,518. The firm did not object to this
recommendation. After reviewing further submissions, the CBAFCC provided the Court
with an adjusted lodestar of 5,036.
70
The firms three-page submission details the firms involvement in depositions. In
addition, the firm described its involvement in the bellwether trial selection process.
The Courts review of the time records revealed some entries that were excessive
in light of the work performed and the time detail provided. For instance, in October and
November 2007, the firm submitted three entries totaling 286 hours stating, prepared
medical chronology for Guidant State Court Bellwether Plaintiff. The Court is not sure
what these entries mean, nor is the Court convinced that whatever work was performed
could possibly have taken that much time. Therefore, based on the Courts de novo
review, the Court finds that an award of ,518 is appropriate.
50. Todd & Weld LLP
The firm of Todd & Weld, LLP, submitted time records and a timely three-page
submission in support of its 7,173 request for common benefit attorney fees. The
firm also appeared before the CBAFCC. The CBAFCC adjusted the lodestar to 2,094
with the fee cap, and recommended a 0.8 multiplier for an award of 7,675. The firm
did not object to the CBAFCCs recommendation. After the CBAFCC report was
submitted, the CBAFCC noted a further adjusted lodestar of 4,094.
The firms three-page submission details the firms time preparing the original
class complaint, developing experts, and doing trial preparation work including motions
in limine and motion practice, among other things. In addition, the firm performed some
document review.
The Courts review of the firms time records revealed some work that the Court
would deem client-related, including reviewing court orders and other
71
individual-client-related work. In addition, the records included some vague entries and
some marketing-related activities, including attending a Heart Rhythm Society
conference in May 2006. Therefore, based on the Courts de novo review, the Court
finds that an award of 6,684 is appropriate.
51. Wallace & Graham, PA
The firm of Wallace & Graham, PA, submitted time records and a timely
three-page submission in support of its petition for common benefit fees. The firm did
not appear before the CBAFCC. The firm requested ,103. The CBAFCC considered
an adjusted lodestar after fee cap of ,916, and recommended a 0.2 multiplier for an
award of ,983. The firm did not object to this recommendation.
The firms three-page submission details the firms filing of three cases in
North Carolina Federal Court. The firm notes the individual research it conducted
regarding their claims, medical devices, Guidant, preemption, and class action issues.
The firm asserts that it shared its research with the PLC once the MDL gained pace. The
firm noted its time spent on discovery of medical records, device records, and the like
from hospitals and its clients. The firm specifically addressed its time spent working
with clients. In addition, the firm noted its time spent reviewing cases for potential
bellwether status.
The Courts review of the firms time records revealed that a great deal of the
firms time was spent on client-specific activities, including client-specific medical
record discovery, plaintiff fact sheets, and client contacts. In addition, a portion of the
firms time was spent reading general orders and correspondence. Therefore, based on
72
the Courts de novo review, the Court finds that the proposed award of ,983 is
appropriate.
52. Weitz & Luxenberg, PC
The firm of Weitz & Luxenberg, PC, submitted time records and a timely
three-page submission on behalf of its 2,110 request for common benefit time. The
CBAFCC considered an adjusted lodestar of 6,892, and it recommended a 0.5
multiplier for an award of 3,446. The firm did not object to this recommendation.
After further submissions, the firms adjusted lodestar is 0,892.
The firm had a member on the PSC, Paul J. Pennock, Esq. The firms three-page
submission describes the firms work filing one of the early class action complaints
against Guidant. The firm retained, prepped, and worked up a purportedly key expert
witness, Dr. Swerdlow, and also deposed Dr. Joseph Smith. The firm also noted its work
regarding document review, trial preparation for a bellwether trial, and depositions. The
firm also participated in the Expert Discovery and Expert working groups.
The Court finds that the firm submitted some time records that included entries for
client-specific work, including attorneys general review of court orders. In addition, the
firm submitted some vague entries that the Court could not necessarily attribute to the
common benefit. Other entries related to prepping for and reviewing depositions seemed
excessive in light of the tasks performed. Finally, the firm submitted time records for
work that the Court would view as marketing activities, such as attending an ATLA
conference and the PSC meeting in Scottsdale. Therefore, based on the Courts de novo
review, the Court finds that an award of 2,713 is appropriate.
73
53. Wexler Toriseva Wallace, LLP
The firm of Wexler Toriseva Wallace, LLP, submitted time records and a timely
three-page submission in support of its ,972 request for common benefit fees. The
firm did not appear before the CBAFCC. The CBAFCC considered an adjusted lodestar
of ,060 and recommended a 0.3 multiplier for an award of ,918. The firm did not
object to this recommendation.
The firm had a member on the PSC, Teresa Toriseva, Esq. The firms three-page
submission noted its work on the bellwether case for Beverly Douglas. In addition, the
firm noted its participation in briefing to respond to Guidants motion for summary
judgment on Plaintiffs unjust enrichment claim. The firm also drafted discovery
requests, consulted on settlement, and considered related class certification issues.
In this instance, the firm submitted time records that were wholly incomplete. The
records provided little detail that allowed the Court to evaluate the firms time. However,
the Court assumes that the CBAFCC was familiar with the firms contribution, especially
considering that Ms. Toriseva was on the PSC and thus the CBAFCC should have
evaluated the firms time appropriately. Based on the Courts de novo review, the Court
finds that the proposed award of ,612 is appropriate.
54. Whatley Drake & Kallas, LLC
The firm of Whatley Drake & Kallas, LLC, submitted time records and an
untimely three-page submission in support of its request for common benefit fees. The
firm did not appear before the CBAFCC. The CBAFCC considered an adjusted lodestar
74
of 6,044. The CBAFCC recommended a 0.2 multiplier for an award of ,209. The
firm did not object to this award.
The firms three-page submission details the firms work serving as a member of
the Discovery Committee, overseeing the sales representative deposition project,
scheduling and organizing the deposition process for the LCC, and the firms work on
depositions.
The Courts review of the firms time indicated some vague entries that the Court
could not attribute to the common benefit. The records also revealed some work that
would have been done for individual clients. Therefore, based on the Courts de novo
review, the Court finds that an award of ,835 is appropriate.
56. Zelle Hoffman Voelbel Mason & Gette
The firm of Zelle Hoffman Voelbel Mason & Gette submitted time records and a
timely three-page submission on behalf of its request for 3,024 of common benefit
fees.14 The firm also made a presentation to the CBAFCC. The CBAFCC considered an
adjusted lodestar of 5,935, and it awarded a 0.6 multiplier for an award of 1,561.
Later, the parties made submissions to the Court concerning the CBAFCCs
assertion that a member of the firm, James Reece, Esq., had an alleged conflict of interest
related to his work with the TPPs and that the firm should therefore not be awarded any
common benefit fees.
14 Subsequent to the CBAFCC Report, the firm submitted an appropriate withdrawal
of some client-specific time, thereby adjusting their submitted lodestar to 4,675.50.
The Court considers withdrawal of time as part of the firms submissions.
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The firms three-page submission detailed its extensive work on the Expert
Committee. The firm also performed a significant amount of work for the Research and
Briefing Committee at the request of the LCC. The firm prepared a white paper on
pacemaker claims and was involved in other discovery and pretrial issues.
The firms time records detail its time spent on document review and other work
as directed by the PLC, much in line with the firms summary of its common benefit
time. The Court found a slight amount of entries related to client-specific work and
research and plaintiff fact sheets. There is nothing in the record to suggest that the
MDLs leaderships lacked knowledge of Mr. Reeces activities, and the record shows
that the PLC directed the firm to engage in the above-mentioned activities. Therefore,
based on the Courts de novo review, the Court finds that an award of 3,216 is
appropriate.
57. Zimmerman Reed PLLP
The firm of Zimmerman Reed PLLP submitted time records and a timely
three-page submission in support of its ,936,694 request for common benefit attorney
fees. The firm did not appear before the CBAFCC. The CBAFCC considered a
,672,930 adjusted lodestar. The CBAFCC recommended a 1.7 multiplier for an award
of ,243,981. The firm did not object to this recommendation. After further
submissions, the CBAFCC readjusted the lodestar to ,669,034.
The firms summary detailed Zimmerman Reeds extensive involvement in this
litigation. Charles S. Zimmerman, Esq., from the firm was Co-Lead Counsel, Liaison
Counsel, Lead Plaintiff negotiator, and Chair of the CBAFCC. The firm described
76
Mr. Zimmermans involvement in nearly every aspect of the litigation, including all
settlement negotiations, and his leadership role throughout the case. The firm stated that
it provided the infrastructure and staffing that facilitated document review, deposition
preparation, and communication with all lawyers in the field, including the PSC, the
MDL claimants lawyers, the press, the U.S. Attorney, state court lawyers, and the
Court. (ZR at 2.) Moreover, the firm noted that it supervised attorney Elizabeth
Peterson as the MDL person responsible for the document depository, document review,
deposition preparation, settlement facilitation, and a variety of other roles.15 The firm
further noted its role in developing the primary liability theory of the case, specifically
identifying the failed polyimide insulation as a design and manufacturing defect. In
addition, the firm noted Mr. Zimmermans extensive role as lead settlement negotiator.
The firm further detailed its roles, among other things, initiating and organizing the
MDL, drafting the MDL master complaint, directing discovery, providing two of the
bellwether plaintiffs (Beranek and Braund), drafting interrogatories and document
requests, reviewing documents, and numerous other tasks throughout the course of the
litigation.
The Court reviewed Zimmerman Reeds time records de novo. The time
submitted by the firm was, for the most part, compensable time directed toward the
common benefit, which is in line with the superior work the Court observed from the firm
throughout this litigation. However, the Court did find some time records that were
15 Notably, however, Ms. Petersons time records have not been submitted as part of
Zimmerman Reeds request here.
77
related to client-specific work and others that the Court would classify as
marketing-related activities, such as entries related to dealing with the press and
reviewing news articles and press releases, and those entries for attending preliminary
MDL organizational meetings and the ATLA meetings. The firm submitted some entries
that were too vague to allow the Court a meaningful way to determine whether the work
was directed to the common benefit, such as conf call with many people or reception.
Other entries were connected with purely clerical work that the Court finds inappropriate
to compensate as attorney fees, much less common benefit attorney fees. Such entries
included those submitted for paying bills and making bank deposits. In addition, the firm
submitted a small number of time entries that were actually directed to a different MDL.
Finally, the Court found that, at times, the firm unnecessarily had more than one attorney
in attendance at court hearings. Therefore, based on the Courts de novo review, the
Court finds that an award of ,558,963 is appropriate.
C. Enhancement
To enhance a lodestar, a court must explain with reasonable specificity the
findings and reasons upon which the award is based, including an indication of how each
of the Johnson factors was applied. See In re Enron Corp. Securities, Derivative &
ERISA Litig., --- F.3d ---, 2008 WL 4178130 at * 19 (S.D. Tex. Sept. 8, 2008). The Court
acknowledges that in certain circumstances in the contingency-fee context, an
enhancement is necessary to adequately compensate those specific attorneys who
shouldered the risk of the litigation. As discussed in many of the submissions to the
Court, certain attorneys shouldered a significant amount of risk, especially prior to the
78
Courts preemption decision. But after that decision and especially with the first
settlement, the risk greatly diminished because the firms should have reasonably expected
to receive compensation for their efforts.
The CBAFCC did assist the Court in one important regard. The CBAFCCs
qualitative-focused report awarded ten multipliers greater than 1.0. In this way, the
CBAFCC gave the Court insight as to which firms went above and beyond the call of
duty in their work for the common benefit. In some instances, the Court was well aware
of the work by certain law firms to this MDL, especially the firms associated with the
LCC. The Court knows that these law firms were consistently, deeply involved in nearly
every portion of the litigation. These firms made themselves available to the Court, to
Claimants, and to Guidant for a significant portion of time. In this way, from the
beginning of this litigation, these firms took a significantly greater risk and invested more
expense into this MDL. Other firms that the CBAFCC awarded a greater than 1.0
multiplier were associated with the state cases, the trial team, and one had significant
involvement with briefing multiple issues before the Court. The Court found the
CBAFCCs Report helpful to the extent that it indentified these ten law firms as
deserving of a multiplier.
Therefore, after conducting its de novo review of the time records and the firms
submissions and considering the history of the MDL, the Court awarded enhancements
not to the submitted lodestars but rather to the Courts actual determination of
compensable workto reflect the Courts acknowledgement that certain law firms
should be awarded fees based on the novelty and difficulty of the legal issues in this
79
MDL, the fact that these firms were likely precluded from doing other work during parts
of this fast-paced MDL, the skills required to bring this matter to an efficient close, and
the firms experience and reputation.
Specifically, because of their notable contributions to this MDL, the Court finds
that a 1.19 multiplier is appropriate for the four firms associated with the LCC: namely,
Lieff, Cabraser, Heimann & Bernstein, LLP; Locks Law Firm; Neblett, Beard &
Arsenault, LLP; and Zimmerman Reed, PLLP. In so limiting the enhancements, the
Court does not intend to diminish the role that the firms involved in state court litigation
or the trial teams played in the MDL. Rather, the Court is acknowledging the extensive
role that the LCC played throughout the entire course of this litigation.
The Court notes, however, that because of certain provisions of the MSA that
could result in a ratchet-down of the total settlement amount and, in turn, a ratchet-down
of the CBAFCC award (see fn. 6, supra), the Court will not actually award any
enhancements until a final determination is made with regard to the final settlement
amount and all Claimants awards have been met.
D. Costs
To the Courts knowledge, the CBAFCC never thoroughly evaluated the expenses
submitted by those attorneys seeking reimbursement for common benefit expenses prior
to the CBAFCC Report. Considering that the Court has now gone through each firms
time records and discounted compensable time for things such as marketing activities,
client-related activities, and the like, the Court asks that the CBAFCC again review the
files to determine which costs are compensable, in line with the Courts individual
80
determinations of compensable time. The Court will trust that a thorough review will be
taken. The Court expects that, with further review, the amount of compensable expenses
will go below the ,570,831 estimated by Mr. Zimmerman. (See fn. 7, supra.)
CONCLUSON
During the course of this litigation, the Court has frequently expressed its concerns
about efficiency and minimizing the costs to Claimants. By its awards today, the Court
is, in no way, judging these attorneys or firms relative to multipliers that have been
awarded in other MDLs across the country. Rather, the Court is recognizing that the
Court instigated a fee cap for a reasonbecause the Court believed that fees over
0/hour for attorneys and 0/hour for paralegals generally were not reasonable for
most attorneys or paralegals involved in this litigation, especially given the unique and
specific contours of this case. A multiplier significantly greater than 1.0 would thwart
that determination. Moreover, the Court also rejects any assertions that firms will not
receive a profit without a multiplier.
Finally, as a practical matter that was recognized by many firms who objected to
the CBAFCCs initial report and fee recommendations, the CBAFCCs multiplier
approach often results in unfair, subjective determinations by a committee of firms that
often benefit from the greater multipliers awarded to themselves. This system potentially
results in a great disparity among firms who did work directly at the request of the PSC
and who were never told that the work they were doing was excessive or inappropriate,
even when, in the case of PSC members, bills were submitted on an ongoing basis during
the course of the litigation. The qualitative multiplier approach results in a situation
81
where some firms who did legitimate, requested work are paid some discounted
percentage on each dollar that they actually worked, while other firms are paid a 100-plus
percentage on the same work that was requested of them. If anything is going to
discourage participation in MDLs, it is that system. In fact, some would suggest that
such a system concentrates work to the in-crowd and discourages diversity of other firms
participating in the MDL litigation.
With this MDL, as with other MDLs and other highly complex litigation, the
Court accepts that responsible case management requires the Court to maintain a delicate
balance of, on one hand, encouraging highly skilled attorneys with significant experience
in mass tort litigation to do common benefit work and provide leadership to the case by
compensating them fairly, while, on the other hand, maximizing economies of scale so
that individual claimants realize the benefit of consolidated and coordinated MDL
litigation. In so doing, individual claimants feel that they have been treated in a fair and
just manner. Moreover, only in this way can the public continue to view MDL litigation
as fair and highly beneficial to the public interest and the interests of justice.
The Court is of the view that the lead attorneys and their firms in this case who
have done the lions share of the common benefit work have made this MDL more
manageable and efficient. In doing so, they have served the interests of not only their
clients, but all plaintiffs, the Court, and yes, the public and the interests of justice.
82
The Court hopes that by the result reached today, and based on its de novo review
of all petitions, the Court has maintained this delicate balance and, in so doing, furthered
the goals and benefits of MDL litigation.
Thus, based on the Courts de novo review of the fifty-eight petitions and the
twenty-one objections, the pleadings, procedural history, and record before the Court, IT
IS HEREBY ORDERED that:
1. Consistent with this Order, the Claims Administrator shall distribute by
wire transfer from the Common Benefit Attorney Fees Account seventy-five percent
(75%) of the compensable attorney fees awarded to the attorneys/law firms listed below.
FIRM NAME Compensable Award
Anapol Schwartz Weiss Cohan Feldman &
Smalley PC ,014
Aylstock, Witkin, Kreis & Overholtz, PLLC 7,304
Barnow & Associates, P.C. ,689
Barrios, Kingsdorf & Casteix, LLP ,352
Becnel Law Firm, LLC 0,664
Bourland Heflin Alvarez Minor & Matthews, PLC ,649
Charfoos & Christensen, P.C. ,162
Cohen & Malad, LLP 3,754
Cuneo Gilbert & LaDuca, L.L.P 8,172
Douglas & London, P.C. ,664
Ellis, Carstarphen, Dougherty & Goldenthal, PC ,746
Goldenberg & Johnson, PLLC 7,976
Grady Schneider & Newman, LLP 9,854
Hagen Berman Sobol, LLP 9,178
Harke & Clasby, LLP 4,631
Heins, Mills & Olson, PLC 6,493
Hersh and Hersh 2,726
Hilliard & Munoz, LLP ,464
Jennings & Drakulich, LLP ,416,529
Joe Crosby 5,678
John F. Nevares ,036
83
Kellogg, Huber, Hansen, Todd, Evans & Figel,
PLLC ,325,844
Kershaw, Cutter & Ratinoff, LLP ,033,222
Kirtland & Packard, LLP ,421
Klafter & Olsen, LLP 2,933
Lawrence E. Feldman ,032
Levin Papantonio Thomas Mitchell Echsner &
Proctor, PA ,547
Levin Simes Kaiser and Gornick, LLP ,600
Lieff, Cabraser, Heimann & Bernstein LLP ,374,906
Lockridge Grindal Nauen PLLP ,750,826
Locks Law Firm ,498,389
Lopez McHugh LLP 7,768
Lopez, Hodes, Restaino, Milman & Skikos 5,637
Martin & Jones ,302
Marty Wivell ,480
Mason Law Firm ,343
Milberg Weiss LLP ,816
Neblett, Beard & Arsenault, LLP ,028,840
Parker Waichman Alonso, LLP ,530
Pearson, Randall & Schumacher, PA 1,526
Preti Flaherty Beliveau & Pachios LLP ,062
Price Waicukauski & Riley, LLC ,525
Pritzker Ruohonen & Associates PA ,000
Rheingold, Valet, Rheingold Shkolnik &
McCartney LLP 4,630
Robinson, Calcagnie & Robinson Inc. 4,740
Russ Abney ,420
Schiffrin, Barroway, Topaz & Kessler, LLP 8,461
Schneider & Wallace ,923
Seeger Weiss LLP 1,046
Sheller, Ludwig & Badey ,000
The Schmidt Firm, LLP ,518
Todd & Weld LLP 6,684
Wallace & Graham, PA. ,983
Weitz & Luxenberg PC 2,713
Wexler Toriseva Wallace, LLP ,612
Whatley Drake & Kallas, LLC ,835
Zelle, Hofmann, Voelbel, Mason & Gette 3,216
Zimmerman Reed, PLLP ,558,963
Total: ,340,028
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2. The attorneys/firms that are entitled to receive compensable attorney fees
from the Common Benefit Attorney Fees Account shall contact Mr. Chris Lordan,
Controller of Analytics, Inc., at 952-404-5723 to coordinate the wire transfers. Absent
further Order of this Court, these distributions shall be made within five business days
after each attorney/firm has completed the paperwork necessary to effectuate the wire
transfer.
3. Any fees incurred by the Claims Administrator in connection with the wire
transfers ordered by the Court shall be paid from the Common Benefit Cost Fund.
4. To ensure that there are enough funds remaining at the end of this litigation,
the remaining portions of the common benefit awards and any enhancements will be
distributed at the close of this litigation.
5. Consistent with this Order, the CBAFCC shall review the submissions
made by attorneys for common costs and make recommendations to the Court in that
regard.
Dated: December 23, 2008 s/Donovan W. Frank
DONOVAN W. FRANK
Judge of United States District Court
 

 
 
 

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