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COMMONWEALTH OF MASSACHUSETTS SUFFOLK, s.s. SUPERIOR COURT BUSINESS LITIGATION SESSION __________________________________________ : COMMONWEALTH CARE ALLIANCE and : GLENN CRENSHAW, individually and on : behalf of persons similarly situated, : Civil Action No. 05-0269 BLS2 : (Judge Sanders) Plaintiffs, : : v. : : ASTRAZENECA PHARMACEUTICALS L.P. : and ZENECA HOLDINDS, INC.. : : Defendants. : : ________________________________________ :
DECLARATION OF WILLIAM B. RUBENSTEIN IN SUPPORT OF PLAINTIFFS’ MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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DECLARATION OF WILLIAM B. RUBENSTEIN IN SUPPORT OF PLAINTIFFS’ MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
I, WILLIAM B. RUBENSTEIN, state the following:
1. The law firm of Hagens Berman Sobol Shapiro LLP has retained me to provide an
expert opinion as to the two central questions currently before the Court: whether the settlement
should be approved and whether a 30% fee should be awarded. After setting forth my
qualifications to serve as an expert (Part I, infra), and briefly describing the underlying litigation
(Part II, infra), I state the following two opinions:
* The settlement warrants final approval as it is a superb resolution of the class’s claims in this matter (Part III, infra). This Court must determine whether the proposed settlement is fair, adequate, and reasonable and can presume it is so if “the parties negotiated at arm’s length and conducted sufficient discovery.” 1 While below I identify eight separate reasons that this settlement is fair, adequate, and reasonable, the simple overview is that among a handful of Nexium cases pursued in different state courts throughout the country, this is the only one in which plaintiffs have secured a monetary settlement; those plaintiffs who make claims in this case are likely to receive 100% of their estimated damages; and the defendants will necessarily be disgorged of $20 million, likely one of the largest common funds ever established in Massachusetts state court. There is also no doubt that the settlement is not collusive: the case was fought for nearly a decade, it was deeply adversarial at each turn, the parties well understood the strengths and weaknesses of their claims and defenses by the time they negotiated a settlement, the settlement negotiations were at arm’s length, and the allocation process was conducted by independent allocation counsel. The results achieved for the class in this case are, put simply, extraordinary, and the settlement easily warrants judicial approval.
* A 30% fee is warranted (Part IV, infra). Attorneys responsible for the creation of
a common fund are entitled to a share of that fund as compensation for their efforts. Courts generally employ the percentage method in awarding common fund fees. A 33-40% fee is typical in private contingent fee litigation in the U.S., while in class actions, percentages tend to be in the 20-35% range. 30% is not at
1 In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 32-33 (1st Cir. 2009). See also In re Relafen Antitrust Litig., 231 F.R.D. 52, 71 (D. Mass. 2005) (“In addition to the requirement that a settlement be fair, adequate, and reasonable, a settlement must be untainted by collusion.”). These federal citations are pertinent as Massachusetts state class action law parallels and borrows from federal class action law. See note 7, infra.
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the low end, but it is not unusually high. Massachusetts courts routinely award 33% fees. Beyond the numbers themselves, qualitative factors – particularly the risks counsel took and the results that they achieved – provide very strong support for the 30% fee request and accompanying lodestar multiplier between 1-2.
In sum, it is my expert opinion that the present settlement is the best of all the Nexium cases in
the United States, while the fee sought is unexceptional and hence warranted.
I.
BACKGROUND AND QUALIFICATIONS2
2. I am the Sidley Austin Professor of Law at Harvard Law School. I graduated
from Yale College, magna cum laude, in 1982 and from Harvard Law School, magna cum laude,
in 1986. I clerked for the Hon. Stanley Sporkin in the U.S. District Court for the District of
Columbia following my graduation from law school. Before joining the Harvard faculty as a
tenured professor in 2007, I was a law professor at UCLA School of Law for a decade, and an
adjunct faculty member at Harvard, Stanford, and Yale Law Schools while a litigator in private
practice during the preceding decade. I am admitted to practice law in the Commonwealth of
Massachusetts, the State of California, the Commonwealth of Pennsylvania (inactive), the
District of Columbia (inactive), the United States Supreme Court, five U.S. Courts of Appeals,
and four U.S. District Courts.
3. My principal area of scholarship is complex civil litigation, with a special
emphasis on class action law. I am the author, co-author, or editor of five books and more than a
dozen scholarly articles, as well as many shorter publications (a fuller bibliography appears in
my c.v., Exhibit A). Much of this work concerns various aspects of class action law. I am the
sole author of the leading national treatise on class action law, Newberg on Class Actions. For
five years (2007-2011), I published a regular column entitled “Expert’s Corner” in the
publication Class Action Attorney Fee Digest. My work has been excerpted in casebooks on
complex litigation, as noted on my c.v.
2 My full c.v. is attached as Exhibit A.
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4. My expertise on procedural matters has been recognized by judges, scholars, and
lawyers in private practice throughout the country, for whom I regularly provide consulting
advice and educational training programs. For four years, the Judicial Panel on Multidistrict
Litigation has invited me to give a presentation at the annual MDL Transferee Judges
Conference on the topic of “Recent Developments in Class Action Law and Impact on MDL
Cases.” The American Law Institute selected me to serve as an Adviser on a Restatement-like
project developing the Principles of the Law of Aggregate Litigation. In 2007, I was the co-chair
of the Class Action Subcommittee of the Mass Torts Committee of the ABA’s Litigation
Section. I am on the Advisory Board of the publication Class Action Law Monitor. I have often
presented continuing legal education programs on class action law at law firms and conferences.
5. My teaching focuses on procedure and complex litigation. I regularly teach the
basic civil procedure course to first-year law students, and I have taught a variety of advanced
courses on complex litigation, remedies, and federal litigation. I have received honors for my
teaching activities, including: the 2012 Albert M. Sacks-Paul A. Freund Award for Teaching
Excellence, as the best teacher at Harvard Law School during the 2011-2012 school year; the
Rutter Award for Excellence in Teaching, as the best teacher at UCLA School of Law during the
2001-2002 school year; and the John Bingham Hurlbut Award for Excellence in Teaching, as the
best teacher at Stanford Law School during the 1996-1997 school year.
6. My academic work on class action law follows a significant career as a litigator.
For nearly eight years, I worked as a staff attorney and project director at the national office of
the American Civil Liberties Union in New York City. In those capacities, I litigated dozens of
cases on behalf of plaintiffs pursuing civil rights matters in state and federal courts throughout
the United States; I also oversaw and coordinated hundreds of additional cases being litigated by
ACLU affiliates and cooperating attorneys in courts around the country. I therefore have
personally initiated and pursued complex litigation, including class actions.
7. In the past few years, I have been retained as an expert witness in roughly three
dozen class action cases and as an expert consultant in about another dozen cases. These cases
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have been in state and federal courts throughout the United States, including a number of MDL
proceedings. I have been retained to testify as an expert witness on issues ranging from the
propriety of class certification to the reasonableness of settlements and fees. I have been retained
by counsel for plaintiffs, for defendants, and for objectors.
8. I have been retained in this case to provide an opinion concerning the issues set
forth in ¶ 1, above. I am being compensated for my work. That compensation is in no way
contingent upon the content of my opinion.
9. In analyzing these issues, I have discussed the case with the counsel who retained
me. I have also reviewed documents from this litigation, a list of which is attached as Exhibit B.
After my initial review of the documents in the case, at my request, counsel arranged for me to
have a telephonic conference with the staff of their damages expert, Meredith Rosenthal. On
Friday, March 22, 2013, I spoke for 1.3 hours to Michael Augusteijn, Senior Associate at
Greylock McKinnon Associates, the firm with which Dr. Rosenthal works; Mr. Augusteijn
answered a series of my questions about the damages methodology and calculations and how
they relate to the proposed claiming program. I have also reviewed the applicable case law and
scholarship on the topics of this Declaration.
II.
THIS LITIGATION3
10. Defendant AstraZeneca manufactures the drug Prilosec, a treatment for a variety
of indigestion-related illnesses and one of the most widely prescribed drugs in the world.
Prilosec’s patent was scheduled to expire in 2001, at which point generic manufacturers could
enter the market and drive the price of the drug – and AstraZeneca’s market share – down.
Plaintiffs allege that in anticipation of these events, AstraZeneca engaged in a series of actions
3 The facts in this section are culled from the documents listed in Exhibit B.
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designed to maintain its prevalence in this market. Generally speaking, the allegations are that
AstraZeneca created a very similar drug, Nexium; falsely advertised Nexium as a better drug
than Prilosec; and initially marketed Nexium at a price point below Prilosec – all in an effort to
lure consumers into using and paying for the patented drug Nexium rather than the generic form
of Prilosec. In short, Plaintiffs argue they were duped into buying Nexium when generic
Prilosec would largely have sufficed and hence were damaged by the difference in price between
Nexium and generic Prilosec.
11. AstraZeneca denies all these allegations.
12. Plaintiffs’ counsel, Hagens Berman Sobol Shapiro LLP (hereafter “Class
Counsel”), pursued these allegations on behalf of consumers in four separate state-based lawsuits
filed throughout the United States.4 Here in Massachusetts, individual consumers Glenn and
Paula Crenshaw, third-party payer (hereafter “TPP” or “TPPs”) Commonwealth Care Alliance,
and an advocacy group, Health Care For All (collectively “Plaintiffs”), filed a putative class suit
in January 2005, and a First Amended Complaint that April. They alleged a series of claims
under various provisions of Mass. Gen. Laws ch. 93A, et seq., and related regulations, stating
that AstraZeneca Pharmaceuticals L.P. and Zeneca Holdings, Inc. (collectively “AstraZeneca” or
“Defendants”):
unfairly, deceptively, and unlawfully promoted Nexium – particularly in comparison to Prilosec – in a manner that created artificial demand for Nexium;
4 Class Counsel pursued actions unsuccessfully in three other jurisdictions. See Pennsylvania Employee, Benefit Trust Fund v. Zeneca, Inc., 710 F. Supp. 2d 458, 465-66 (D. Del. 2010); Weiss v. AstraZeneca Pharmaceuticals, B215901, 2010 WL 3387220 (Cal. Ct. App. Aug. 30, 2010); Prohias v. AstraZeneca Pharmaceuticals, L.P., 958 So. 2d 1054, 1056 (Fla. Dist. Ct. App. 2007), review denied, 969 So. 2d 1014 (Fla. 2007). A fourth case handled by other attorneys was also unsuccessful. See DePriest v. AstraZeneca Pharmaceuticals, L.P., 351 S.W.3d 168, 170-71 (Ark. 2009).
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engaged in false advertising in their promotion of Nexium; and
engaged in deceptive pricing.
13. On October 17, 2005, the Superior Court (Justice van Gestel) denied without
prejudice AstraZeneca’s motion to dismiss Plaintiffs’ First Amended Complaint, holding that
Defendants could not overcome their burden of demonstrating that Plaintiffs could not prove any
set of facts in support of each claim entitling Plaintiffs to relief.
14. After several years of discovery and related litigation, in the summer of 2010, the
Superior Court (Justice Neel) granted Plaintiffs’ motion for class certification, certifying a class
of all persons or entities in Massachusetts who purchased Nexium between March 2001 and the
date of the order, including third-party payers, cash payers, and those making co-payments or
using co-insurance. Simultaneously, the Court denied a portion of Defendants’ motion for
summary judgment, by which the Defendants had alleged that Plaintiffs’ had failed to establish
the causation and injury elements of their claims; the Court did grant Defendants’ summary
judgment on their argument that one of the proposed class representatives (Health Care for All)
lacked associational standing.
15. Two years later, on August 9, 2012, the Superior Court (Justice Roach) denied
AstraZeneca’s second motion for summary judgment, by which AstraZeneca had argued it was
entitled to summary judgment (1) to the extent that Plaintiffs’ claims relied on written
promotional materials and Nexium’s labeling, and (2) on Plaintiffs’ supposed theory that there
was an “overall marketing scheme” to promote Nexium as “superior” to Prilosec. The Court did
grant AstraZeneca’s motion as to any arguments that (1) Nexium’s labeling was per se false or
(2) written “Core Visual Aids” were per se deceptive.
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16. Later that summer, as an October 9 trial date approached, this Court denied
AstraZeneca’s motions in limine to exclude the expert testimony of Dr. John Abramson and Dr.
Meredith Rosenthal. Dr. Abramson, a medical doctor licensed to practice in Massachusetts and
Lecturer in Health Care Policy at Harvard Medical School, was prepared to testify that
AstraZeneca had marketed Nexium to physicians and other purchasers on the basis of the drug’s
supposed superiority, a claim that Dr. Abramson believed to be unsupported. Dr. Rosenthal, a
professor of Health Economics and Policy at the Harvard School of Public Health, was prepared
to testify that damages in the suit might run to $184.4 million.
17. Prior to the October 9 trial, settlement negotiations proved successful and the
parties ultimately entered into a formal Stipulation of Settlement and Release (hereafter
“Settlement”) on January 28, 2013.
18. With standard exclusions, the Settlement defines the class as:
All persons or entities who, during the period from March 1, 2001 through the date of entry of a court order preliminarily approving the proposed Settlement of the Action: (a) purchased Nexium in or from Massachusetts; (b) reimbursed or paid for Nexium dispensed in Massachusetts; or (c) reimbursed or paid for Nexium purchased by mail order from Massachusetts.
19. In exchange for Plaintiffs’ agreement to release their claims, AstraZeneca has
agreed to establish a common fund containing $20,000,000 for the benefit of class members.
20. As the class included both individual consumers and TPPs, groups whose legal
positions might be seen as conflicting, Plaintiffs’ counsel appointed independent Allocation
Counsel for each group and had those Counsel negotiate the allocation of the Settlement’s fund
between the two groups. 5 The Settlement states that based on the recommendations of
5 Both groups had essentially the same factual arguments and pursued the same type of real damages. The primary rationale for the use of outside allocation counsel was that Class Counsel – who had represented both consumers and third-party payers to this point – wanted to avoid the
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Allocation Counsel, 43.38% of the settlement fund ($8,676,000 gross of fees and expenses) is to
go toward consumer claims and 56.62% ($11,324,000) to third-party payers’ claims, in the first
instance.
21. According to guidelines developed by Class Counsel, Consumers may make
claims against the $8.7 million in their fund in one of two ways: (1) the “Flat Rate Recovery
Option” or (2) the “Full Estimated Recovery Option.” Under the “Flat Rate Recovery Option,” a
consumer can receive a one-time, flat fee of $25 upon submitting a claim form stating that s/he
paid for Nexium between March 1, 2001 and the date of preliminary approval (“Class Period”).
Under the “Full Estimated Recovery Option,” a consumer must submit a claim form identifying
either the total amount that s/he paid for Nexium and/or the total number of prescriptions that
s/he had filled or re-filled during the Class Period, and s/he must label her payments as co-
payments or full payments. Those who made full payments on their own will recover the greater
of $97 per prescription or 54% of the total amount they paid; those who made co-payments or
used co-insurance will recover the greater of $17.50 per prescription or 61% of the total amount
paid – but in no event will a long-form user recover less than $25. Should the consumer claims
not exceed the consumer fund total, payouts for those using the “Estimated Recovery Option”
will be increased up to three times the calculated recovery; if an excess still remains in the fund,
it will roll over into the TPP fund.
22. Third-party payers may file claims against their $11.3 million fund by submitting
claim forms identifying their total Nexium payments, and they will receive an award of 44.5% of
that total. Should the TPP claims not exceed the TPP fund, payouts will be increased up to three
task of dividing the finite $20 million fund between the two groups when each group would now want to maximize its own portion of the fixed amount of funds.
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times the calculated recovery; if any excess still remains in the fund, it will roll over into the
consumer fund.
23. The Settlement provides that, in addition to the class members’ claims and subject
to court approval, the named Plaintiffs may seek incentive awards not to exceed $15,000 each,
and Class Counsel may seek an award of fees, not to exceed $6 million (30% of the $20,000,000
settlement fund) and costs. Both have done so.
24. If money remains in the net settlement fund after payment of all claims, fees, and
awards listed above, the excess would be distributed as cy pres payments to charities agreed to
by the parties and approved by the Court.
25. On February 6, 2013, this Court granted Plaintiffs’ unopposed motion for
preliminary approval of a class settlement, which also proposed the form and method of notice to
class members and scheduling of future events.
III. THE SETTLEMENT WARRANTS JUDICIAL APPROVAL
A.
The Legal Standard
26. The Massachusetts class action rule, like its federal counterpart, requires that a
court approve any settlement or compromise of a class action.6 Massachusetts class action law
has borrowed approval standards from federal law.7 The First Circuit has summarized federal
law concerning settlement approval by noting that:
6 Compare Mass. R. Civ. P. 23(c) (“A class action shall not be dismissed or compromised without the approval of the court.”), with Fed. R. Civ. P. 23(e) (“The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval.”). See also Mass. Gen. Laws ch. 93A, § 9(2) (stating that class actions alleging use of unfair or deceptive act or practice “shall not be dismissed, settled or compromised without the approval of the court”).
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Rule 23’s reasonableness standard has been given substance by case law offering laundry lists of factors, most of them intuitively obvious and dependent largely on variables that are hard to quantify; usually, the ultimate decision by the judge involves balancing the advantages and disadvantages of the proposed settlement as against the consequences of going to trial or other possible but perhaps unattainable variations on the proffered settlement.8
The settlement factors focus a court on the value of what the class is getting, the risks that
inhered in reaching that outcome, and the process that produced it. A recent Superior Court
decision enumerates the following list:
The criteria generally utilized in determining whether a settlement is fair, reasonable, and adequate are: 1. likelihood of recovery, or likelihood of success; 2. amount and nature of discovery or evidence; 3. settlement terms and conditions; 4. recommendation and experience of counsel; 5. future expense and likely duration of litigation; 6. recommendation of neutral parties, if any; 7. number of objectors and nature of objections; and 8. the presence of good faith and the absence of collusion.9
I will address these factors, listing eight separate points that argue in favor of Settlement
approval. Before doing so, however, it is helpful to examine the Settlement’s terms themselves
more carefully, as the analysis of their fairness requires an understanding of their precise
meaning.
7 See Sniffin v. Prudential Ins. Co. of America, 395 Mass. 415, 420-21, 480 N.E.2d 294, 297 (1985) (upholding use of lower court’s standard “similar to that adopted by the Federal courts when reviewing proposed settlements of class actions under Fed. R. Civ. P. 23(e), the Federal provision analogous to Mass. R. Civ. P. 23(c)” and requiring that settlement be “fair, reasonable, and adequate,” the same standard used in federal court); Vermont Pure Holdings, Ltd. v. Berry, 0601814BLS1, 2010 WL 1665258, at *10 (Mass. Super. Feb. 8, 2010) (noting that “criteria pertinent to determining whether that settlement would have been approved are not, in the usual course, jurisdiction specific” and citing criteria and analysis from state courts, federal courts, and treatises). 8 Nat’l Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund, 582 F.3d 30, 44 (1st Cir. 2009). 9 Vermont Pure Holdings, Ltd., 2010 WL 1665258, at *10 (quoting 4 NEWBERG ON CLASS
ACTIONS § 11:43 (4th ed.)).
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B. The Settlement Numbers
27. The heart of the approval motion turns on the question of what the class is getting.
At first glance, however, the value of this Settlement to the class members is a bit opaque and
confusing. There are a lot different numbers ($97 or 54% for consumer payers; $17.50 or 61%
for consumers who made co-payments or used co-insurance; 44.5% for TPPs), and the numbers
may seem inexplicably different for the different groups, all of which begs one question: what
do all these numbers actually mean? Because so much turns on the answer to that question, I
spent considerable time studying the documents herein, discussing them with Class Counsel, and
then going over all of the data with Plaintiffs’ expert witness team – and I accordingly begin my
opinion by setting these data in context.
28. The harm that Plaintiffs allege, put simply, is the difference in purchase price
between Nexium and generic Prilosec throughout the class period. Thus, if a consumer paid full
price for Nexium, say $200, but could have brought generic Prilosec for $100, her damages
would be $100 for that prescription; similarly, if a consumer had insurance and therefore only
had to pay a co-pay, but her co-pay for Nexium was $35, while her co-pay for a generic would
have been $20, her damages are $15. Moreover, using these same numbers, a TPP might have
been charged $200 for Nexium and paid $165 (because of the consumer’s $35 co-pay), while the
TPP would only have been charged $100 for the generic and would only have paid $80 (because
of the consumer’s $20 co-pay), meaning that the TPP’s damage is $85, the difference between
what it paid for Nexium ($165) and what it could have paid for the generic ($80). This
paragraph demonstrates that the dollar amount of the purchase price constituting an overpayment
is different for each of the three types of payers ($100, $20, and $80 in my hypothetical), but that
those different dollar amounts each capture precisely the same harm – the dollar amount that
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specific type of payer overpaid. If a payer knows only the number of prescriptions she filled,
having a dollar figure of overpayment for each subscription enables a simple calculation of her
damages, as the total number of prescriptions can simply be multiplied by the dollar over-
payment per prescription to yield the total damages.
29. The flat dollar overpayments in the last paragraph can also be expressed in
percentage terms, with the percentage capturing what portion of the total price paid was an
overpayment. Thus, my hypothetical consumer overpaid $100 on a $200 purchase, meaning that
her overpayment was 50% of what she paid out of pocket. My hypothetical co-paying consumer
overpaid $20 on a $35 co-payment, meaning her overpayment was 57% of her total out of pocket
costs. And my hypothetical TPP overpaid $85 on a $165 purchase, meaning that 51.5% of what
it paid was overpayment. This paragraph demonstrates that the portion of the purchase price
constituting an overpayment is different for each of the three types of payers (50%, 57%, and
51.5% in my hypothetical), but that those different percentages all capture precisely the same
harm – the amount of overpayment. If a payer knows only the full amount she paid for Nexium,
having a percentage figure for overpayment enables a simple calculation of her damages as the
total amount paid can easily be multiplied by the percentage that was overpayment to yield the
total damages.
30. Finally, because the class period covers more than a decade and because both
prices and sales volumes varied throughout this decade, to capture a single damage amount for
each of the three groups requires one more mathematical step – some averaging and weighting.
Thus, for each of the three groups, the damage methodology looks at the difference in price
between Nexium and generic Prilosec in each quarter throughout the class period, adds up all
those differences, and takes the average of them – adjusting, or weighting, the average to account
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for the fact that different quantities of Nexium were sold in each quarter. A simple example, as it
applies to a consumer paying the full retail price, appears in Table 1 below.
TABLE 1 Simple Explanation of Plaintiffs’ Damage Methodology Using Hypothetical Data
1 2 3 4 5 6
Nexium Price
Generic Prilosec Price
Price Difference
Nexium Prescriptions
Price Difference x Prescriptions
Total Nexium Proceeds
A Time period 1 $180 $80 $100 10 $1,000 $1,800
B Time period 2 $200 $80 $120 20 $2,400 $4,000
C Time period 3 $220 $80 $140 40 $5,600 $8,800
D TOTAL 70 $9,000 $14,600
E Avg Overpayment
Total price difference x prescriptions/total prescriptions (col5/col4)
$9,000/70= $128.57
F Avg Price Total Nexium Proceeds/Total Prescriptions (col 6/col4)
14,600/70= $208.57
G % Overpayment
Avg Overpayment/Average Price (rowE/rowF)
$128.57/$208.57= 61.64%
What Table 1 demonstrates is that Plaintiffs’ damages (measured as the price differentials
between Nexium and generic Prilosec, column 3) varied throughout the class period from $100-
$140 in different quarters and that the average of those differentials is $120 ((100+120+140)/3).
But when that average is adjusted to account for the fact that more Nexium was sold in the later
quarters at higher prices, the weighted average difference in price is $128.57 (Row E). This
explains where the $97 figure in the claiming form comes from – using the real numbers rather
than my hypothetical numbers, $97 is the average weighted damage for each Nexium
prescription paid in full by a consumer throughout the class period. The various percentages in
the settlement derive from the same methodology, as they simply represent the amount a class
member overpaid compared to the full price that was paid – in other words, in my example the
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average consumer overpaid by about $128 (row E) and the average consumer price throughout
the period was $208.57 (row F), and therefore the average overpayment is 61.64% (row G). This
explains where the 54% figure in the claiming form comes from – using the real numbers rather
than my hypothetical numbers, that is, the average weighted overpayment for Nexium
throughout the class period. The numbers for TPP claims are derived in precisely the same
fashion and their percentage recovery represents the same concept as applied to the amounts that
TPPs actually paid for Nexium (net of co-payments and co-insurance).
31. Given that both consumers and TPP damages were calculated according to the
same methodology and that both groups are entitled to 100% of their losses, the final perplexing
question about the Settlement terms is simply why allocation counsel were needed and why the
total Settlement is allocated into two separate pools in the first instance. I can find but one
function for this, a function that likely helps consumers. Within each pool, if 100% of the funds
are not claimed, each group10 will have its claims multiplied (up to tripling); only after that
multiplying, if funds remain in either pool, will they then spill over into the sister pool. I assume
that consumers are less likely to make claims here than are TPPs, for the simple reason that
consumers are busy individuals with one-off claims, while TPPs are in the business of processing
payments and are better situated to pursue claims. If I am correct, that means that those few
consumers who do make claims are likely to have their claims tripled – and there still might be
money left in their pool to spill into the TPP pool. If more TPPs make claims, a larger chunk of
their pool will be claimed in the first instance and their claims are less likely to be multiplied,
much less tripled; perhaps TPPs will end up with but doubled, rather than tripled, payments.
Had there been a single pool, consumers and TPPs would have had the same multiplier, likely a
10 In the consumer pool, this is only consumers who are making full claims, not taking $25.
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blend quite close to the TPP multiplier since most of the claims will likely be TPP claims. Thus,
a single pool would have likely diluted the possibility that consumers would receive trebled
relief, while the separately allocated pool safeguards this possibility for them. This also means
that TPPs would likely have done better with a single pool, but the gain would have been
marginal – the excess in the consumer pool falls into their pool once the consumer claims are
trebled – and I am assuming that the TPPs’ independent allocation counsel was aware of this
effect in agreeing to this allocation. Moreover, all things being equal, there is some justification
for consumers receiving trebled relief even if this means that TPPs get, say, only doubled relief,
in that TPPs are better situated to spread costs among a pool of consumers (indeed, that is their
function) whereby individual payers suffer the most serious harm in a case like this. In sum,
while it was prudent for Class Counsel to utilize allocation counsel, I actually find no conflict
between the groups as to their legal claims, no conflict as to the remedies offered since each is
getting 100% of their damages in the first instance, and a negligible conflict arguably created by
the two pool distribution scheme, a conflict slightly favoring consumers but (both procedurally
and substantively) justifiably so.
32. My review of all of the data points in the Settlement has helped me comprehend
that the numbers, although they might appear random, have three essential qualities: they are not
arbitrary but in fact are directly tied to each group’s actual harm; although they differ across
groups, in fact the settlement treats class members equally both within each group and across
groups; and the claiming levels represent an attempt to distribute as much money as possible to
the class members.
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C. What The Settlement Data Demonstrate
33. The Settlement provides different damage amount for each type of payer within
the class (consumer, consumer co-payers/co-insurance users, and TPPs). Section III.B walked
through how Class Counsel set the numbers. With the methodology now transparent, eight
remarkable aspects of the Settlement emerge from this explication.
34. Result 1: 100% For Claimers. Consumers who file full claims here – and do not
take the $25 flat payment – and TPPs that file claims will likely get at least 100% of their
damages.11 This is true because the settlement’s various payout amounts and percentages were
all derived using Plaintiffs’ own damage methodology, a methodology which states the alleged
harms at high dollar amounts, rather than using the Defendants’ models or some compromise. A
100% payout is a stupendous outcome rarely seen in class action “settlements,” or any other
settlements for that matter – essentially, those who make claims here are likely to receive the
same amount of money they would have received had the case gone to trial. This outcome is
closer to a Plaintiffs’ victory than to a settlement.
35. Result 2: High Total Recovery. What precludes Plaintiffs from claiming total
victory, however, is that 100% of the class will not get back 100% of its damages – if all the
class members were to make full claims, Plaintiffs’ damages methodology sets the total amount
of those damages at $100 million. What this means is that the Settlement’s $20 million value,
11 Since averages are used, some consumers may have paid more than the average price and hence will not quite receive 100% of their damages; but conversely, others will have paid slightly less than the average and may receive slightly more than 100% of their damages. Moreover, the payments in 2013 for losses incurred during the previous 12 years do not account for the time value of money – but often court-awarded damages do not, either. See Michael S. Knoll, A Primer on Prejudgment Interest, 75 TEX. L. REV. 293, 297 (1996) (“Nonetheless, the requirement that a losing defendant pay prejudgment interest to a successful plaintiff remains far from universal.”).
18
and 100% claim value distribution scheme, builds in an assumption that no more than 20% of the
class will make full claims – or, if they do, that each claim will be decreased accordingly,
thereby muting the conclusion of the previous paragraph’s point. This is nonetheless a
remarkable result for three reasons – (1) getting even 20% of the class to claim would be a
significant claiming rate; (2) even giving class members 20 cents per dollar of loss would be a
significant outcome12 – and the outcome would only be that low if all claimants in the class made
full claims; and (3) all of this exaggerates the value of Plaintiffs’ claims to their full amount
according to their own methodology, a methodology that Defendants seriously contest. Put
simply, $20 million is a lot of money and probably puts this among the highest dollar class action
settlements in Massachusetts state court history.13
36. Result 3: Superb Recovery Among Possible Options. Plaintiffs could have
received a range of possible damages – (1) nothing, as was the case with these same cases in
other states, described in ¶39 below; (2) nominal amounts, as per Defendants’ damages
methodology; or (3) the full amount of their claims some years from now had they prevailed at
trial and had the verdict been sustained on appeal. The Settlement value is far closer to the third
of those possibilities than it is to the first or the second. To be more specific, Plaintiffs’ damages
12 See, e.g., Lisa Klein Wager & Adrienne M. Ward, Securities Class Actions: A Company's Bad News Gets Worse, BUS. L. TODAY, July-Aug. 2002, at 15, 18 (noting that for securities class actions “the median settlement is less than 6 percent of investors’ alleged losses”); Denise N. Martin, Vinita M. Juneja, et al., Recent Trends IV: What Explains Filings and Settlements in Shareholder Class Actions, 5 STAN. J.L. BUS. & FIN. 121, 141 (1999) (noting that for securities class actions settled between January 1991 and June 1998, the average proportion of settlement amount to claimed damages was 14% and the average proportion of settlement to alleged investor losses was 9%). 13 Since many class settlements are unreported, I cannot make these assertions with greater certitude. However, the wage and hour cases I have been able to locate are far more modest in size and scope than this Settlement. See infra ¶ 54 & Exhibit C.
19
expert, Dr. Rosenthal, had ultimately valued the total damages to the combined class of
consumers and third-party payers at $98.2 million to $139.1 million, with a lower bound
damages range of $61.9 million to $82.4 million, creating an average for all of Plaintiffs’
damages models of $100 million.14 AstraZeneca, conversely, continues to deny that Plaintiffs’
claims have any merit whatsoever, a finding largely supported by the conclusions of
AstraZeneca’s damages expert, Dr. Rausser, who estimated total damages to be between $0 and
$1.1 million.15 Thus, while the Plaintiffs return can be characterized as but 20% of their
expected damages, conversely, it is 2,000%, or nearly twenty times the value, of the claims
according to Defendants’ expert. Beyond the numbers lie the facts, as well. The Plaintiffs’
damages methodology assumes that the vast majority of Nexium purchases would have been
generic Prilosec purchases. This is a bold assumption. Even assuming that the Plaintiffs could
have proven that Nexium is no better than generic Prilosec – a hotly contested question – that
alone does not demonstrate that every class member would necessarily have preferred generic
Prilosec in every purchase or that every class member would have had better results from it. Yet
the claiming methodology makes available to everyone in the class the complete price
differential regardless of whether they in fact would have ever used generic Prilosec or not.
Moreover, the Settlement’s value to the class is in cash, not an easier alternative like coupons for
future purchases of Defendants’ products, demonstrating that Class Counsel eschewed a potential
14 Dr. Rosenthal’s clarification of her declaration lists possible damages valuations to Massachusetts end-payers as $98.2 million, $117.8 million, $118.7 million, and $139.1 million. See Declaration of Dr. Meredith Rosenthal – Clarification, at 1. The “lower bound damages,” assuming certain rebate pass-through percentages, are $61.9 million, $81.5 million, $82.4 million, and $102.8 million. See Declaration of Dr. Meredith Rosenthal – Clarification, at 2. The average of all of these values is $100.3 million. 15 See Declaration of Dr. Gordon Rausser, at 34.
20
settlement form that would only marginally have benefited the class.16
37. Result 4: Ease of Claiming. Class members must file claim forms to get
recovery from the Settlement, but the claiming process is not complex. Consumer class
members seeking a simple recovery (“Flat Rate Recovery Option”) are entitled to just file a form
providing their basic contact information and they will then receive $25; no proof of purchase is
required. Consumer class members seeking more money (“Full Estimated Recovery Option”)
need only identify how often they took Nexium (either by noting the number of prescriptions or
the total amount they paid) and attach one proof of purchase to receive full payment. In other
words, if a class member claims she paid full price for 10 Nexium prescriptions (or re-fills) – a
claim entitling her to $970 – and she attaches but one receipt for one single purchase of Nexium,
she has met the claiming requirements for the full $970. This is a remarkably easy claiming
process. While it is typical that a class action claim form will enable either a flat payment or a
higher payment with more documentation, I am unaware of any settlement in which class
members may make a large claim based on a single document that alone may reflect a
significantly smaller loss. The TPP process is similarly straightforward. Those entities need
only provide transaction numbers for Nexium purchases and amounts paid, all data that should
be readily available in a business’s database; they need not worry about calculating all of the
deductibles, rebates, co-pays, or co-insurance for any claims as all of this is already figured into
16 See, e.g., U.S. Senate Committee on the Judiciary, The Class Action Fairness Act of 2005, S. Rep. No. 109-14, at 15 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 15 (“Through several hearings over the past several years, the Committee has become aware of numerous class action settlements approved by state courts in which most – if not all – of the monetary benefits went to the class counsel, rather than the class members those attorneys were supposed to be representing. These settlements include many so-called ‘coupon settlements’ in which class members receive nothing more than promotional coupons to purchase more products from the defendants.”).
21
the damages methodology, as described in Section III.B, supra. To further ensure that class
members may pursue claims easily, Class Counsel have taken steps to ensure that the Notice
reaches individual class members and encourages them to file claims.17
38. Result 5: No Reversion, Full Disgorgement. The Settlement has additional value
for the simple reason that it is not a so-called “claims made” settlement, with the defendant only
being out of pocket for the amounts class members actually claim, nor will any of the $20
million ever revert to the Defendants. Regardless of the claiming rate, Defendants will
necessarily be disgorged of $20 million. This brings further value to the class’s claims for three
reasons: (1) those who do claim, if the claiming rate is modest, will receive more than 100% of
their claims’ value – acknowledging in part the treble damage remedy available for some of the
present claims; (2) if not all of the fund is distributed, the excess will go via a cy pres distribution
approved by the Court to a charity that will indirectly serve the class’s interests; and (3) the
Defendants will necessarily pay out $20 million, meaning the settlement necessarily creates $20
million of deterrence.
39. Result 6: Exceptional Result When Compared to Parallel Litigation. As noted
above, this case is one of a handful brought throughout the United States challenging
AstraZeneca’s marketing of Nexium.18 This is the only case of the five in which plaintiffs
recovered even a single penny. This is the only case of the five in which a court certified a class.
17 See, e.g., Plaintiffs’ Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class, and Scheduling Fairness Hearing, at 16–20 (noting that use of subpoenas enabled potential class members to be discovered through records of nine large pharmacies and mail-order companies, all of whom will receive summary notice; that potential TPP class members had been identified by claims administrator and would receive notice; and including the use of significant newspaper and internet publication to promulgate notice). 18 The other cases were in Arkansas, California, Delaware, and Florida. See ¶ 12 & n.4, supra.
22
This is the only case of the five in which the plaintiffs even survived dispositive motions: the
Arkansas, Florida, and Delaware suits were dismissed at the motion to dismiss stage; the
California suit failed at the motion for summary judgment stage. These facts strongly support
the reasonableness of the Settlement because they are indicative not only of the Settlement’s
value, but also of the high risk that the Massachusetts Nexium litigation entailed for Plaintiffs.
40. Result 7: Guaranteed Recovery Despite Substantial Risks. The Settlement was
obtained at great risk. The failed litigation in the other states demonstrates the risk – the case
might have been disposed of on any number of legal or factual grounds at any point. Plaintiffs’
claims have survived one motion to dismiss; two motions for summary judgment; a class
certification proceeding; and motions to exclude the testimony of two of Plaintiffs’ four
experts.19 This suit has been litigated nearly three times longer than the average non-fee-shifting
class action suit and four times longer than the median consumer class action suit.20 After
approximately eight years of litigation, AstraZeneca continues to deny any wrongdoing in its
promotion of Nexium. Having survived this far, Plaintiffs therefore still stood before the
19 See Plaintiffs’ Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class, and Scheduling Fairness Hearing, at 2. 20 The original complaint was filed on January 25, 2005 and the parties signed their Settlement agreement on January 28, 2013, almost precisely 8 years – or 2,920 days – later. A recent study concluded that the median length of time for a class action suit to be litigated before settlement was 1,068 days (slightly under three years); the mean length of time was 1,196 days (slightly more than three years). See Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. EMPIRICAL LEGAL STUD. 811, 820 (2010) [hereinafter “Fitzpatrick”]). This study confirmed the findings of an earlier analysis, which had concluded that non-fee-shifting cases settled in a median time of 3.0 years and a mean time of 2.86 years. See id. at 820-21 (citing Theodore Eisenberg & Geoffrey Miller, Attorney Fees in Class Action Settlements: An Empirical Study, 1 J. EMPIRICAL LEGAL STUD. 27, 59–60 (2004)). Professor Fitzpatrick’s study determined that consumer class actions tended to settle even earlier: the median settlement point was 720 days (2 years) and the mean settlement point was 963 days (slightly more than 2.5 years). Id. at 820.
23
gauntlet of trial. Trial entailed the real possibility that the trier of fact would find for
AstraZeneca on the claims themselves or award damages in line with AstraZeneca’s expert, both
of which would result in a de minimis (if any) recovery. Moreover, had Plaintiffs prevailed,
post-trial motions and appeals would likely have ensued. In the face of these risks, securing a
Settlement significantly in excess of what AstraZeneca would have likely argued at trial – again,
by a multiple of nearly twenty – is quite an achievement. In short, comparing the risk of further
litigation with the substantive terms of the Settlement agreed to by the parties strongly militates
in favor of the Settlement’s reasonableness.21
41. Result 8: Arm’s Length Adversarial Litigation Devoid of Collusion. As the
class’s fiduciary, a court overseeing a settlement must ensure that class counsel has not sold out
the class in return for a significant fee for itself. The Manual for Complex Litigation enumerates
a number of relevant factors suggestive of a problematic proposed settlement.22 Not a single one
exists here.
This was not a quick settlement – the case has been litigated for eight years in significant depth.
Counsel were not ignorant of the value of the claims in making the settlement
– the eight years of litigation had enabled significant discovery to be taken23
21 The significant professional risks that Class Counsel bore in undertaking this matter are further enumerated in Part IV, infra. 22 See FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION (FOURTH) §21.61, at 310–12 (2004) [hereinafter “Manual for Complex Litigation”]. 23 See Plaintiffs’ Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class, and Scheduling Fairness Hearing, at 1–2 (noting that the parties have reviewed “millions of pages of documents produced by the Defendants and third parties”; served and answered “numerous sets of interrogatories and requests for admissions”; conducted seven depositions; and exchanged reports of Plaintiffs’ four expert witnesses and Defendants’ six expert witnesses, which included depositions of experts at both the class certification and merits stages).
24
and the value of Plaintiffs’ claims to become well-known and susceptible to meaningful compromise. Moreover, the facts of this case are similar to other Nexium suits throughout the country, including three other suits in which Class Counsel served as attorneys. As a result, the attorneys here have been involved in, and are well aware of the relevant discovery from, these other cases, and they have conducted substantial discovery in this suit alone.
The litigation was deeply adversarial, encompassing extensive motion practice
and discovery and the involvement of a slew of competing expert witnesses on both sides.
The Settlement was not the result of a reverse auction, whereby the defendant
negotiates with multiple plaintiffs’ attorneys in related cases to find the one willing to settle for the lowest class recovery; there were no other plaintiffs’ attorneys or separate Massachusetts actions in this matter.
The Settlement’s benefits are not illusory nonmonetary benefits, such as
coupons.
The Settlement claiming process is not cumbersome.
Similarly situated class members are treated similarly. Indeed, after the parties had negotiated the settlement amount, Class Counsel took the additional step of appointing outside counsel to represent the interests of consumers and third-party payers separately in negotiating the allocation of the settlement fund between the two groups.24 This negotiation process took nearly eight weeks itself.25
The Settlement does not release claims against non-defendants nor of parties
unable to receive compensation through the Settlement fund.
The Settlement does not reward the attorneys in cash and the class in coupons, nor, as discussed in Part IV, below, inordinately.
Every element of this litigation has been adversarial and each step of the settlement at arms-
length and designed to protect every class member, all of which belies any fears that this
24 See Plaintiffs’ Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class, and Scheduling Fairness Hearing, at 4–5; Declaration of Jeffrey S. Goldenberg ¶¶ 5–11; Declaration of Kenneth A. Wexler ¶¶ 2–7. 25 See Plaintiffs’ Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class, and Scheduling Fairness Hearing, at 3–5; Declaration of Jeffrey S. Goldenberg ¶ 7; Declaration of Kenneth A. Wexler ¶ 3.
25
settlement constitutes a collusive bargain of some kind.
* * *
42. In sum, in Part III, after reviewing the law and terms of the Settlement, I have
identified eight distinct factors argue in favor of this Settlement – (1) the near 100% value
returned to those who make claims; (2) the high total value of the Settlement; (3) the value of the
Settlement compared to other possible outcomes; (4) the easy claiming process; (5) the absence
of reversion of unclaimed funds; (6) the strength of this result as compared to parallel litigation;
(7) the significant risks Class Counsel incurred in pursuing this case; and (8) the clear lack of any
collusion in its conclusion. Each of these factors supports judicial approval of the settlement.
The presence of but a few would make it an easy case for judicial approval; the presence of all
eight testify to the remarkable nature of this Settlement.
IV. COUNSEL’S FEE REQUEST IS REASONABLE
A.
Counsel’s Right to A Fee 43. Class Counsel seek a fee constituting 30% of the common fund. As the claims
herein were based on Massachusetts law, and the fund has been established with an escrow agent
under the jurisdiction of this Massachusetts state court, Massachusetts state fees law governs the
adjudication of the fee request.26 While Massachusetts state fee jurisprudence does not explicitly
address all of the issues that arise in considering this fee request, the Supreme Judicial Court has
26 See Coggins v. New England Patriots Football Club, Inc., 406 Mass. 666, 669, 550 N.E.2d 141, 144 (1990) (citing Massachusetts case law to review payment of fees from settlement fund). Cf. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S. Ct. 745, 749, 62 L. Ed. 2d 676 (1980) (“Jurisdiction over the fund involved in the litigation allows a court to . . . assess[] attorney’s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit.”).
26
held that federal law may be utilized to fill such interpretative gaps in class action law,27 and it
has looked to federal law in determining Massachusetts fees law in the past.28 As is common in
such interpretative situations, Massachusetts looks, in particular, to federal law in the local
federal district courts of Massachusetts and the U.S. Court of Appeals for the First Circuit.
44. Under Massachusetts law, counsel that is responsible for creating or preserving a
common fund is entitled to an appropriate fee out of the fund.29 The common fund doctrine is
based on the principle of restitution: if the class were permitted to reap the $20 million benefit
without paying the attorneys who accomplished this result, unjust enrichment would result.30
27 See supra note 7. 28 See, e.g., Kadlick v. Dep't of Mental Health, 431 Mass. 850, 853 n.8, 731 N.E.2d 495, 498 (2000) (noting that Court had observed that “the analysis of the award of fees under [a state statute] is similar to the analysis under the federal statutes” due to similar wording); Coggins v. New England Patriots Football Club, Inc., 406 Mass. 666, 670, 550 N.E.2d 141, 144 (1990) (citing First Circuit case in discussing Massachusetts fees). 29 See See Coggins v. New England Patriots Football Club, Inc., 406 Mass. 666, 669, 550 N.E.2d 141, 144 (1990); Pearson v. Bd. of Health of Chicopee, 402 Mass. 797, 801 n.3, 525 N.E.2d 400, 402 n.3 (1988); Comm’r of Ins. v. Massachusetts Accident Co., 318 Mass. 238, 242, 61 N.E.2d 137, 139 (1945); Fray-Witzer v. Metro. Antiques, LLC, 02-5827 BLS1, 2008 WL 3916091, at *2 (Mass. Super. Ct. June 18, 2008) (approving establishment of settlement fund and noting that attorney’s fees would be paid from it). Cf. Am. Trucking Associations, Inc. v. Sec’y of Admin., 415 Mass. 337, 353, 613 N.E.2d 95, 105 (1993) (noting availability of percentage of fund method but declining to apply it in civil rights action brought under 42 U.S.C. § 1988). See also BTZ, Inc. v. Great Northern Nekoosa Corp., 47 F.3d 463, 465 (1st Cir. 1995) (stating that where plaintiff’s suit results in a “substantial [pecuniary or nonpecuniary] benefit to a larger class . . . a court may invoke its equitable jurisdiction to assess attorney fees against beneficiaries of the legal services; and, where the beneficiaries are corporate shareholders, their assessment may be imposed upon the corporate defendant”). See generally Manual for Complex Litigation, supra note 22, § 14.11, at 185 (2004) (“If attorneys’ efforts create or preserve a fund or benefit for others in addition to their own clients, the court is empowered to award fees from the fund. . . . Common-fund cases are predominantly, but not exclusively, class actions . . . .”). 30 See Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (stating that “[t]he doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense”); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-394 (1970) (authorizing federal courts to award attorneys’ fees to prevent unjust
27
45. The common fund doctrine not only rests upon an important principle, it also
serves crucial public policy functions by providing:
[1] fairness to the successful litigant, who might otherwise receive no benefit because his recovery might be consumed by the expenses; [2] correlative prevention of an unfair advantage to the others who are entitled to share in the fund and who should bear their share of the burden of its recovery; [3] encouragement of the attorney for the successful litigant, who will be more willing to undertake and diligently prosecute proper litigation for the protection or recovery of the fund if he is assured that he will be promptly and directly compensated should his efforts be successful.31
46. There is no doubt that Class Counsel is entitled to a fee from the present fund.
Counsel’s actions on behalf of the class, and those actions alone, secured the $20 million in
available relief. Class Counsel meets the entitlement threshold.
B. Methods for Establishing the Fee
47. Courts have employed two primary methods for determining the proper fee to
award class counsel out of a common fund:
Percentage Method – Using the percentage method, a court simply awards counsel a percentage of the common fund. The percentage method approximates the manner in which plaintiff contingent fee lawyers undertake work outside the class action context. It is the conventional method for common fund fee awards, and, for a variety of reasons, is the most popular method for awarding common fund fees.32 About half of the time that courts employ the percentage method they undertake a “lodestar cross-check,” whereby they see how the percentage method’s award compares to
enrichment when litigation confers “a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them”). 31 In re Stauffer’s Estate, 53 Cal. 2d 124, 132 (1959) (numerals supplied). 32 See, e.g., Fitzpatrick, supra note 20, at 832 (2010) (finding that 69% of courts utilize the percentage of fund method in some fashion, either with or without the lodestar cross-check); Manual for Complex Litigation, supra note 22, § 14.121 at 187 (citations omitted) (“After a period of experimentation with the lodestar method . . . the vast majority of courts of appeals now permit or direct district courts to use the percentage-fee method in common fund cases”).
28
counsel’s basic hourly rates; 33 a percentage award above the lodestar is said to embody a positive multiplier, an award below lodestar embodies a negative multiplier. The lodestar cross-check is somewhat illogical in that its undermines the efficient simplicity of the percentage approach and discourages attorneys from settling cases early; courts therefore tend to approach it simply as a rough cross-check, affirming the general reasonableness of the fee, not as an additional fee test.
Lodestar Method – Using the lodestar method, a court provides counsel a fee based on the number of hours they worked multiplied by their hourly billing rate(s). This base amount is referred to as the “lodestar.” Often, courts will award counsel a multiplied lodestar if particular factors are present.34 The lodestar method is most common in fee-shifting cases, not common fund cases,35 though as noted above it is often used in tandem with the percentage method to assess the reasonableness of a particular percentage award. The lodestar is disfavored because, among other reasons, it is time-consuming and, as noted, creates incentives for lawyers to prolong litigation.36
33 See Theodore Eisenberg & Geoffrey Miller, Attorney Fees and Expenses in Class Action Settlements: 1993–2008, 7 J. EMPIRICAL LEGAL STUD. 248, 267 (2010) [hereinafter “Eisenberg & Miller II”] (showing that 42.8% of courts use both the percentage and lodestar methods in the same case, suggesting that these courts are undertaking a lodestar cross-check); Manual for Complex Litigation, supra note 22, § 14.121, at 191 (“A number of courts favor the lodestar as a backup or cross-check on the percentage method when fees might be excessive.” (citation omitted)). A recent example of the use of a lodestar cross-check within the First Circuit is Walsh v. Popular, Inc., 2012 WL 769600, at *7 (D.P.R. March 12, 2012) (finding that a 23% attorney fee would be equivalent to a 1.33 lodestar multiplier, thus confirming the reasonableness of the percentage). 34 See Manual for Complex Litigation, supra note 22, §14.13, at 195–96 (“The lodestar figure may be adjusted, either upward or downward, to account for several factors including, inter alia, the quality of the representation, the benefit obtained for the class, the complexity and novelty of the issues presented, the risk of nonpayment, and any delay in payment.”). 35 See, e.g., Am. Trucking Associations, Inc. v. Sec'y of Admin., 415 Mass. 337, 352–53, 613 N.E.2d 95, 104–05 (1993) (holding that attorney’s fees in 42 U.S.C. § 1988 suit should come from common fund if successful on merits and class certified, but concluding that percentage method was inappropriate in § 1988 case). 36 The First Circuit has enumerated three reasons that the percentage, not the lodestar, approach is preferred: first, rather than focusing intense time on reviewing time records, the percentage approach enables a judge to focus on the benefit counsel conferred on the class; second, unlike a lodestar approach that encourages counsel to drag out a case, the percentage approach creates proper incentives for class counsel; and third, the percentage approach better approximates the market. See In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295, 307 (1st Cir. 1995); see also Manual for Complex Litigation, supra note 22, § 14.121, at 188 (“[T]he lodestar method is difficult to apply, time-consuming to administer,
29
48. Regardless of the particular method employed, most circuits employ a multifactor
test to assure the reasonableness of the fee.37 While the particular factors vary from circuit to
circuit, the class action fee tests are rooted in general professional norms about reasonable fees
and hence the class action fee factors tend to parallel the fee factors found in state ethics rules.38
49. Either of the available fee methods enables attorneys to receive a multiplied fee.
A multiplied fee pays a lawyer more than her hourly rate. Why should a lawyer ever get more
than her hourly billing rate? The key to answering this question lies in the purpose of the
contingent fee and the mechanisms by which it is made to work. Contingent fees serve a critical
social function. Clients hire lawyers on a contingent fee basis for the simple reason that they
cannot afford to pay them an hourly rate. Contingent fee lawyers therefore make legal services
available to large swaths of the population that otherwise would have no access to the civil
justice system.39 But few lawyers would so serve the public if they only got paid their hourly
rate. This is true for several reasons.
inconsistent in result, and capable of manipulation.”); Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 258 (1985) (characterizing the lodestar formula as a “cumbersome, enervating, and often surrealistic process of preparing and evaluating fee petitions”). See generally William B. Rubenstein, Why The Percentage Method?, 2 CLASS
ACTION ATTORNEY FEE DIGEST 93 (March 2008) (summarizing benefits of percentage method). 37 See Manual for Complex Litigation, supra note 22, at § 14.121, at 191 (“The court should identify relevant factors and how these factors helped determine the percentage awarded.”) (citation omitted). 38 Compare, e.g., MASS. R. OF PROF’L. C. 1.5(a) (enumerating eight-factor test to be considered in determining the reasonableness of a fee), with, e.g., Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974) (enumerating 12-factor test to determine reasonableness of class action fee award), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). 39 A classic explanation is that given by the Pennsylvania Supreme Court:
30
a. Contingent fee lawyers are fronting their client’s costs, so even if they
fully recover at the end of the lawsuit, they have lost use of their resources during the course of
the lawsuit; this “time value of money” must be re-paid, as well as the hourly rate, to make it
worthwhile for the lawyer to take a contingent fee case.
b. Contingent fee lawyers take significant risks beyond just losing the use of
their resources for the course of the lawsuit – a contingent fee lawyer who fronts her client her
time and costs risks losing all of that investment if the client does not prevail. It is this risk that
justifies a return higher than an hourly rate. If contingent fee lawyers simply got paid the hourly
rate that a firm lawyer made, no lawyer would ever go into a contingent fee practice: any rational
lawyer would prefer to take the firm job, where the only risk of not being paid is the small risk
that the paying client becomes insolvent.40 Just as investors who invest in riskier products will
yield higher returns, so too lawyers who take risks by lending their resources are entitled to a
higher return when those risks pay off.
If it were not for contingent fees, indigent victims of tortious accidents, would be subject to the unbridled, self-willed partisanship of their tortfeasors. The person who has, without fault on his part, been injured and who, because of his injury, is unable to work, and has a large family to support, and has no money to engage a lawyer, would be at the mercy of the person who disabled him because, being in a superior economic position, the injuring person could force on his victim, desperately in need of money to keep the candle of life burning in himself and his dependent ones, a wholly unconscionably meager sum in settlement, or even refuse to pay him anything at all. Any society, and especially a democratic one, worthy of respect in the spectrum of civilization, should never tolerate such a victimization of the weak by the mighty.
Richette v. Solomon, 187 A.2d 910, 919 (Pa. 1963). 40 Behrens v. Wometco Enterprises, 118 F.R.D. 534, 548 (S.D. Fla. 1988) (“If this ‘bonus’ methodology did not exist, very few lawyers could take on the representation of a class client given the investment of substantial time, effort, and money, especially in light of the risks of recovering nothing.”).
31
c. Contingent fee lawyers undertake cases where their investment yields no
return; the higher return in the winning cases helps level out their income over the course of their
practice.41 Most successful contingent fee practices have a mix of winning and losing cases, a
diversified portfolio of actions just like the diversified portfolio that an investor has in the
market. While the winning cases with multiplied returns may seem dramatic, the actual value of
the contingent fee lawyer’s practice has to be weighed across the whole portfolio of matters, not
on a single case in isolation.42
d. The contingent fee therefore serves a vital social function, but for the
contingent fee to work, private attorneys must invest their personal resources in their client’s
cases; in return for taking that risk, the contingent fee lawyer is compensated at a rate higher than
her basic hourly rate. The California Supreme Court has summarized the point in the following
terms:
“A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.” (Posner, Economic Analysis of Law (4th ed.1992) pp. 534, 567.) “A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be
41 See Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997) (stating that because contingent fee contracts “offer the potential of a greater fee than might be earned under an hourly billing method,” they thereby “compensate the attorney for the risk that the attorney will receive no fee whatsoever if the case is lost”). 42 See, e.g., John C. Coffee, Jr., Understanding the Plaintiff’s Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669, 704-712 (1986) (“[P]ortfolio diversification is a strategy that permits a plaintiff’s attorney . . . to reduce the variance associated with an expected return.”).
32
reluctant to accept fee award cases.” (Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480).43
50. Massachusetts law has no set methodology to establish a common fund fee award.
The Supreme Judicial Court has – since at least 1945 – explicitly approved of using the
percentage method of calculating attorney’s fees when a common fund is created.44 The First
Circuit, while noting that the percentage method “is the prevailing praxis” with many “distinct
advantages,”45 nonetheless permits district courts to employ either the percentage or lodestar
method,46 and does not “require courts to examine a fixed laundry list of factors.”47 Most
reported district court opinions have interpreted this direction as one favoring a percentage
approach, 48 and most employ some set of factors to ensure the reasonableness of the
43 Ketchum v. Moses 17 P.3d 735, 742 (Cal. 2001) (emphasis added). 44 See Coggins v. New England Patriots Football Club, Inc., 406 Mass. 666, 669, 550 N.E.2d 141, 144 (1990); Pearson v. Bd. of Health of Chicopee, 402 Mass. 797, 801 n.3, 525 N.E.2d 400, 402 n.3 (1988); Comm’r of Ins. v. Massachusetts Accident Co., 318 Mass. 238, 242, 61 N.E.2d 137, 139 (1945); Fray-Witzer v. Metro. Antiques, LLC, 02-5827 BLS1, 2008 WL 3916091, at *2 (Mass. Super. Ct. June 18, 2008) (approving establishment of settlement fund and noting that attorney’s fees would be paid from it). Cf. Am. Trucking Associations, Inc. v. Sec’y of Admin., 415 Mass. 337, 353, 613 N.E.2d 95, 105 (1993) (noting availability of percentage of fund method but declining to apply it in civil rights action brought under 42 U.S.C. § 1988). 45 In re Thirteen Appeals, 56 F.3d at 307. 46 Id. (“[I]n a common fund case the district court, in the exercise of its informed discretion, may calculate counsel fees either on a percentage of the fund basis or by fashioning a lodestar.”). 47 In re Tyco Int’l, Ltd. Multidistrict Litig., 535 F. Supp. 2d 249, 266 (D.N.H. 2007). 48 See, e.g., Walsh v. Popular, Inc., 2012 WL 769600, *4 (D.P.R. March 12, 2012) (“The POF [percentage of fund] approach methodology is favored in this Circuit for determining the appropriate attorneys’ fees in common fund cases, such as the instant case.”); In re Puerto Rican Cabotage Antitrust Litigation, 815 F. Supp. 2d 448, 458 (D.P.R. 2011) (“The Court confirms that it shall employ the percentage of the fund approach, as opposed to the lodestar method, to Lead Counsel’s requested attorney fees as that methodology is favored in this Circuit.”); In re Tyco, 535 F. Supp. 2d at 265 (“In line with . . . past common fund cases in this circuit, I use the percentage of fund (“POF”) method . . . to evaluate the fee request.”); In re Cabletron Systems,
33
percentage.49 Factors that the Massachusetts federal district courts have used to evaluate the
reasonableness of requested fees include:
(1) the reaction of the class members to the settlement and proposed attorneys’ fees; (2) the skill and efficiency of the attorneys involved; (3) the complexity and duration of the litigation; (4) the risk that the litigation will be unsuccessful; (5) the amount of time devoted to the case by counsel, and (6) the extent of the benefit obtained.50
51. This Court need not select a particular method because the requested fee is
justified under any method. The following sections demonstrate the reasonableness of the
requested fee according to the various approaches:
Section III.C employs a quantitative approach, comparing the requested percentage and its lodestar/multiplier to fees in similar cases. That review demonstrates that the requested percentage (30%) is unexceptional and that courts undertaking a lodestar cross-check have often approved percentage awards embodying a multiplier well above the one sought here in appropriate circumstances.
Secion III.D then employs a qualitative, multifactor test, focusing on the two key factors in any fee analysis – the risks that Class Counsel took and the results they achieved.51 That review demonstrates that Class Counsel took a large risk and secured a remarkable result, fully justifying the requested fee.
Inc. Securities Litigation, 239 F.R.D. 30, 37-38 (D.N.H. 2006) (noting the grant of discretion, and then stating that “The Court is persuaded, based on the holding of Thirteen Appeals and the emerging trend in district courts nationwide, that the better approach to awarding attorneys’ fees is the POF method.”). 49 See, e.g., In re Tyco, 535 F. Supp. 2d at 266 (considering five “most relevant” factors in approving fee award of $464 million); In re Relafen Antitrust Litigation, 231 F.R.D. 52, 79 (D. Mass. 2005) (considering seven factors in approving fee award of $22 million); In re Lupron Marketing and Sales Practices Litigation, 2005 WL 2006833, at *3 (D. Mass. 2005) (considering seven different factors in approving fee and costs award of $23.75 million). 50 In re TJX Cos. Retail Sec. Breach Litig., 584 F. Supp. 2d 395, 401 (D. Mass. 2008) (citing In re Relafen Antitrust Litig., 231 F.R.D. 52, 79 (D. Mass. 2005); In re Lupron Mktg. and Sales Practices Litig., 2005 WL 2006833 (D. Mass. August 17, 2005)). 51 See Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 338 (1st Cir. 1997) (finding “results obtained as a preeminent consideration in the fee-adjustment process” for civil rights cases); In re Lupron Mktg. and Sales Practices Litig., 2005 WL 2006833, at *4 (D. Mass. Aug. 17, 2005)
34
Together these sections demonstrate that the fee and multiplier are familiar, reasonable, and
justified under the relevant multifactor test.
C. Quantitative Factors Supporting This Fee Request: Percentage/Lodestar Multipliers in Similar Cases
52. Class Counsel seek a fee constituting 30% of the common fund. The common
fund consists of $20 million. The 30% therefore amounts to $6 million. Class Counsel report a
total lodestar of $3,036,252, based on 7,419 hours of work, reflecting a blended billing rate of
approximately $409/hour. Counsel’s requested 30% fee therefore embodies a multiplier of 1.98,
or, roughly, 2.
53. Class Counsel’s requested percentage award – 30% – is reasonable. The
percentage method mimics the standard contingency fee arrangement in private lawsuits, in
which contingent fees generally range from 33-40%. In class action lawsuits, awards are
generally between 20-30%;52 indeed some courts, such as the Ninth Circuit, simply make 25% a
(“Many cases recognize that the risk assumed by an attorney is ‘perhaps the foremost factor’ in determining an appropriate fee award.” (quoting Goldberger v. Integrated Res., Inc., 209 F.3d 43, 54 (2d Cir. 2000))). 52 See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 n.4 (9th Cir. 2002), cert. denied, 537 U.S. 1018 (2002) (summarizing appendix of percentage fee awards from 34 common fund settlements of $50-200 million from 1996-2001); Mazola v. May Dept. Stores Co., 1999 WL 1261312, at *4 (D. Mass. Jan. 27, 1999) (observing that “percentage fee awards range from 20% to 35% of the fund” in the First Circuit and that “[t]he normal percentage awarded by federal courts is 20–30% of the value of the settlement, with 25% being a benchmark” (internal quotation marks omitted)); Manual for Complex Litigation, supra note 22, § 14.121, at 188 (“Attorney fees awarded under the percentage method are often between 25% and 30% of the fund.”); 1 ALBA CONTE, ATTORNEY FEE AWARDS § 2:8 (3d ed.) (noting that common-fund fees in complex class action suits “normally constitute 20 to 30% of the class recovery, up to common funds of approximately $50 million”); 4 WILLIAM B. RUBENSTEIN, ALBA CONTE &
HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS § 14:6 (4th ed. 2002) (“Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”); Fitzpatrick, supra note 20, at 833,
35
presumptive benchmark.53 In the First Circuit, the mean award has recently been 27%,54 and the
mean award in consumer cases with higher risks, which I would characterize this case to be,55 is
31.3%.56
54. In reviewing recent Massachusetts state cases, I have found one reported case
embodying a percentage award, and that award was 34.2%. 57 I have identified a set of
unreported cases in the employment context, most of which awarded 33.3% and one of which
awarded 38%. These are set forth in Exhibit C. (I did not find any other Massachusetts state
percentage fund cases that I am not supplying in this Table.).
55. In reviewing recent precedent in Massachusetts federal courts, there are many
reported cases, and the range of percentages is broad. Among these cases, though, roughly half
report fees above 30% of the common fund. These cases can be found in Exhibit D.
56. In reviewing precedent outside of Massachusetts, I was similarly able to identify a
835 (concluding from data that the range for “most” percentage method attorney’s fees awards for settled class actions in federal court in 2006 and 2007 “were between 25 percent and 35 percent, with almost no awards more than 35 percent,” that the average award was 25.4% and the median award was 25%, and that the average award in a consumer class action was 23.5% and the median award in a consumer class action was 24.6%); Eisenberg & Miller II, supra note 33, at 259, 262 (concluding that combined state and federal cases in study had mean fee award of 23% and median award of 24%, and that consumer class actions had a mean fee award of 25% and median award of 20%); Martin et al., supra note 12, at 141 (concluding that “[f]ee amounts average approximately 32 percent of the settlement award” for shareholder class actions in cases examined between 1991 and 1998). 53 Vizcaino, 290 F.3d at 1047. 54 Fitzpatrick, supra note 20, at 836. 55 See ¶ 40, supra; ¶¶ 63-68, infra. 56 Eisenberg & Miller II, supra note 33, at 265. 57 See Coggins v. New England Patriots Football Club, Inc., 406 Mass. 666, 669, 550 N.E.2d 141, 144 (1990).
36
large number of cases with awards over 30%. These cases can be found in Exhibit E. This is
not, of course, a statistically significant sample of federal fee cases; but it is a large enough
sample to demonstrate that fees of 30% and greater are not uncommon, even in cases involving
fairly large common funds.
57. It is therefore my conclusion that a 30% fee is a regularly-awarded percentage fee
in class action suits in Massachusetts state and federal courts and throughout the country.
58. If the Court were to take a lodestar approach to fees, Counsel’s lodestar is also
reasonable. Counsel’s lodestar shows 7,419 hours at a blended billing rate of $409. The lodestar
includes 6,353 hours of attorney time at a blended billing rate of $456. The number of hours
invested and the billing rates are both reasonable.
a. Hours. Counsel worked on this matter for eight years, engaging in
extensive motion practice and discovery, including the involvement of a substantial number of
expert witnesses. Their total lawyer hours work out to about 800/year, which is roughly
speaking, 50% of one lawyer’s time each year. Given the novelty and complexity of the factual
issues, the quantity of the litigation activities, and the development of a complex settlement
structure and the process of seeking approval therefor, the case could easily have occupied one
lawyer half-time throughout its duration (with the hours smoothed out over time). Nothing about
the total quantity of hours seems unreasonable.58
b. Rates. The billing rates are also consistent with – indeed, generally lower
58 I did not undertake a lodestar audit, reviewing Counsel’s billing records line-by-line. Given that the back-of-the-envelope analysis presented in the text raises no red flags, there was no reason for me to undertake a micromanaged lodestar analysis. As such, I did not review the manner in which Class Counsel assigned hours originally charged to all Nexium cases to this Massachusetts matter, though I understand the quantity of such hours to be relatively minimal and only assigned to this suit if the work directly benefitted the Massachusetts case.
37
than – those Massachusetts courts have approved in recent years. Exhibit F compares Class
Counsel’s rates and those approved in recent Massachusetts decisions. The federal district court
in one recent decision affirmed rates of Boston partners and senior partners in the $600-700
range.59 Here, one senior partner 34 years out of law school (Spiegel) accounts for nearly 60%
of the total attorney hours billed and his time is billed at $531/hour.60 A 2006 Massachusetts
Superior Court decision approved a $600 billing rate, as consistent with this market, for a
Goodwin Proctor partner 19 years out of law school at the time,61 a rate which is the equivalent
of $690.97 in 2013 dollars.62 Mr. Spiegel’s billing rate here is therefore nearly 25% below what
Massachusetts courts have approved for partners with but half of his experience. Class Counsel
here also utilized their actual historic billing rates, rather than current rates, although fees law
59 See Tuli v. Brigham & Women’s Hosp., Inc., 2009 U.S. Dist. LEXIS 129768 at *5-7 (D. Mass. June 8, 2009); see also Davis v. Footbridge Eng'g Services, LLC, 09CV11133-NG, 2011 WL 3678928, at *3–4 (D. Mass. Aug. 22, 2011) (awarding counsel hourly rates of $565–650 for partners; $350–425 for associates; and $140–210 for paralegals). 60 Although Mr. Spiegel’s office is in Seattle, it is conventional to use billing rates in the market in which the lawsuit is pending, unless lawyers in that market were unwilling to undertake the case. See ALAN HIRSCH AND DIANE SHEEHEY, AWARDING ATTORNEYS’ FEES AND MANAGING
FEE LITIGATION 24 & n.117 (Federal Judicial Center, 2d ed. 2005) (stating that “[m]ost courts consider the forum community the proper yardstick, so an award for out-of-town counsel will not be based on the rates in their usual place of work” and citing authorities). 61 See Brooks Automation, Inc. v. Blueshift Techs., Inc., 21 Mass. L. Rptr 53 (Mass. Super. Ct. Apr. 6, 2006) (awarding hourly rates of $500, $600, and $625 per hour for partners with twelve, nineteen, and twenty-three years of experience, respectively, and awarding hourly rates of $410 for fifth-year associate, $300 for second-year associate, and $260 for first-year associate); see also Fronk v. Fowler, 22 Mass. L. Rptr. 366 (Mass. Super. Ct. May 21, 2007) (finding that WilmerHale’s hourly rates of $450-575 for partners, $195-360 for associates, and $110-195 for paralegals over four years of litigation, while high, were reasonable in the context of the litigation). 62 To make that calculation, I used the United States Department of Labor, Bureau of Labor Statistics’s CPI Inflation Calculator, available at: http://www.bls.gov/data/inflation_calculator.htm/.
38
typically permits them to do the latter.63 There is little doubt that the hours and fees are
reasonable.
59. If the Court were to undertake a lodestar cross-check, or use a lodestar approach
to the fees, Counsel’s requested multiplier is 2. (Counsel inform me that if they were to bill at
their current, rather than historic, rates, as fees laws permits,64 their lodestar would be about $3.9
million and hence their multiplier would be 1.54.) This too is unexceptional. Statistically, cross-
checks reveal multipliers ranging from 1-3 in most cases, but an important caveat is in order.
The vast bulk of contingent fee cases – the normal tort cases in which clients privately contract
to pay their lawyers 33-40% of the recovery – are never cross-checked against the lawyer’s
lodestar because no court oversees the award. So, in fact, there is not a statistically significant
sample of lodestar multipliers in normal contingent fee cases. The few empirical studies of class
action fee awards provide empirical data about the lodestar cross-checks that have occurred in
class action cases, as in these cases, courts must approve the fee award and can ask for a lodestar
report from counsel. This case is, of course, a class action, and so the data are relevant. The
class action cross-check data are charted in Table 2. They show the multiplier sought here (1.5-
2) to be precisely the mean multiplier in most class action cases.
63 See Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (approving use of current rather than historic rates under federal fee-shifting statute as “an appropriate adjustment for delay in payment”). See generally, HIRSCH AND SHEEHEY, supra note 60, at 45-46 (noting that in lengthy cases such as this, courts may compensate counsel for delay in payment either through using current rates for the whole bill or by allowing interest on the fee). 64 See HIRSCH AND SHEEHEY, supra note 60, at 45-46.
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TABLE 2 Empirical Data on Mean Lodestar Multipliers in Common Fund Cases
Fitzpatrick65 1.65
Miller & Eisenberg II – All Cases66 1.81
Miller & Eisenberg II – First Circuit67 2.10
Miller & Eisenberg II – Consumer68 1.82
Logan - Recoveries $20-30m69 1.90
60. Beyond these statistics, case reports demonstrate that, in appropriate cases, courts
have often approved percentage awards embodying lodestar multipliers far above the range
sought here. In Exhibit G, I provide a list of 54 cases with multipliers over 3.5, 48 of which have
multipliers of 4 or more, and 31 of which have multipliers of 5 or more. This list is not meant to
be either exhaustive or representative of all multipliers. Rather, the list demonstrates that courts
approve percentage awards that embody multipliers well above the multiplier sought here in
appropriate circumstances. That these cases are more than occasional outliers is confirmed by
the empirical studies cited above. The Logan study, for example, shows that in 1,120 common
65 Fitzpatrick, supra note 20, at 833-34. These multiplier cases include those using the percentage method with a lodestar cross-check, i.e. no pure lodestar cases included. 66 Eisenberg & Miller II, supra note 33, at 272. This multiplier data set excludes those cases that report a multiplier of 1. It is unclear if that data set includes only percentage method cases with lodestar cross-check or also includes pure lodestar cases. 67 Id. 68 Id. 69 Stuart Logan et al., Attorney Fee Awards in Common Fund Class Actions, 24 CLASS ACTION
REP. 167, 169 (2003). This multiplier data set includes cases that only utilized a percentage for calculating fees. The study is unclear on how it calculated multipliers for these cases, as this specific subset did not include cases that applied a mixed lodestar-percentage method. Id. at 195.
40
fund cases studied, the average fee multiplier for all cases was 3.89 and, in cases with funds over
$100 million, the average fee multiplier was 4.5, with the average multiplier increasing to 6.2 if
only percentage method cases are considered.70 In short, a lodestar cross-check verifies that
there is nothing unprecedented about this fee request – the percentage checks out.
61. My review of these data points leads to the conclusion that a 30% percent award
is normal and that, when cross-checked against Class Counsel’s lodestar, yields an acceptable
multiplier. These quantitative data support the requested award, but that award is especially
justified by the unique circumstances of this case. I now turn to those qualitative factors.
D. Qualitative Factors Supporting the Fee Request:
Risks Taken and Results Achieved
62. As noted in ¶ 50, above, courts employ various multifactor tests to assess the
reasonableness of fee awards. The two most critical factors are the risks counsel undertook and
the results they achieved. As Part III of this Declaration rehearsed the remarkable results that
Counsel achieved, I will not repeat that analysis here. Six points demonstrate the riskiness of
this matter.
63. Risk 1: This case was complicated. It involved scientific information concerning
the differences between two drugs, both of relatively recent origin. Thus, Counsel had to educate
themselves about these medications – including the detailed scientific analysis at the core of the
superiority claim – and their origins. In addition, Class Counsel then had to learn about patents,
the FDA approval process, and the law related to the labeling, marketing, and pricing of FDA-
approved drugs. Class counsel were required to understand (and commission) significant
statistical analyses and the byzantine network of entities related to prescription drug approval,
70 Id. at 169–170.
41
marketing, and sales. Complicated pharmaceutical rebates exacerbated the difficulty of this task.
In short, nothing they learned in prior cases – even pharmaceutical cases – would necessarily be
transferable to this case, and nothing they learned in this one about these drugs and their
approval, marketing, and sales processes would necessarily assist them in any future cases.
64. Risk 2: This case was not cookie-cutter. Many plaintiffs’ lawyers handle, for
example, asbestos cases, one after another. While the facts of asbestos itself may be difficult to
learn for the first case, these facts are generally the same for the hundredth or thousandth case,
varied only by the particular client’s specific situation. Often, the lawyers can therefore re-use
information, pleadings, parts of briefs, etc. from prior actions. Further, many class actions are
brought on the heels of government enforcement actions, such as class actions that follow SEC
enforcement actions or Department of Justice antitrust actions.71 In such “piggy-back” cases, the
class lawyers can often employ issue preclusion to estop the defendants from re-litigating
liability;72 all they must do, therefore, is litigate damages for the class. This case does not have
those features – the facts were unique, little could have been recycled from prior cases for use in
this matter, and no government enforcement actions paved the way. Class Counsel deserve high
marks on the novelty and skill factors of the fee assessment.
65. Risk 3: This case was riskier than a standard contingent fee case. The vast
majority of lawsuits settle. A lawyer bringing a basic contingent fee tort case has a high
likelihood of assuming the case will settle; class action lawsuits that survive motions to dismiss
or class certification fall into the same category. Following discovery, when both parties can
71 See William B. Rubenstein, On What a “Private Attorney General” Is – And Why It Matters, 57 VAND. L. REV. 2129, 2150-52 (2004) (describing practice of “piggy-back” cases and analyzing extent of such practices).
72 See Parkland Hosiery v. Shore, 439 U.S. 322 (1979).
42
accurately assess the value of their respective legal positions, rational litigants typically settle.
This case defied that expectation, particularly after Defendants were successful in having parallel
cases in four other states dismissed. There was a far greater likelihood here than in a standard
case that the attorneys pursuing this matter would not prevail because the Defendants had every
reason to fight hard and to believe that they would succeed, as they had everywhere else.
66. Risk 4: This case was expensive. Class Counsel invested about $3 million of its
own time and money into this case and likely spent millions more in the parallel state cases in
which it did not prevail – and hence will never be paid. Class Counsel’s team worked nearly
7,500 hours on this Massachusetts case alone, generating a lodestar of about $3 million, close to
$4 million if the rates are adjusted to counsel’s current rates. In addition to that, Class Counsel
informs me that they had out-of-pocket expenses of about $1,000,000. What this, means, quite
simply, is that Class Counsel loaned the class nearly $4-5 million in this Massachusetts litigation
alone. They risked losing most of this amount on the outcome of this case. Attorneys very
rarely invest so greatly in a client’s case. It suggests an appetite for risk that far outstrips that of
most lawyers, even contingent fee lawyers.
67. Risk 5: Class Counsel bore the risk of the cases themselves. In most class action
matters, particularly of this magnitude, the class is represented by a collection of plaintiffs’
firms.73 This means that the lawyers are able to spread the risk among the various firms. Here,
Class Counsel alone shouldered the risk of this complicated, novel, and expensive matter.
73 See, e.g., Manual for Complex Litigation, supra note 22, at § 10.22, at 24–28 (discussing presence of multiple counsel in complex litigation and advising judges on how to manage); Judith Resnick et al., Individuals Within the Aggregate: Relationships, Representation and Fees, 71 N.Y.U. L. REV. 296, 321 n.74 (1996) (describing a recent class action “in which some 60 firms are reportedly involved”).
43
68. Risk 6: Class Counsel was precluded from taking other, simpler, paying work by
virtue of their investment in this matter. Given the amount of time Class Counsel invested here,
there is little doubt that these cases precluded them from working on other, plausibly less risky,
matters.
69. These six points demonstrate what seems incontestable: Class Counsel took large
risks. Like any investor that takes large risks, these risks entitle them to a higher-than-average
rate of return on their investment – but only if the risks they took paid off. As described in detail
in Part III, the risks they took bore substantial fruit, for which they deserve the unexceptional
30% fee, a fee that embodies an average multiplier ranging from 1.54 (if their fees are adjusted
to current rates) to 2 (if the fees are calculated at historic rates).
70. In sum, Massachusetts law entitles Class Counsel to a fee for having created and
preserved a common fund; Massachusetts law permits this Court to assess the fee award
according to a variety of methods; and under any of the available methods Massachusetts law
supports Class Counsel’s requested award as:
quantitatively, 30% is an unexceptional percentage, justified here by a lodestar cross-check; and
qualitatively, Class Counsel undertook significant risks and achieved extraordinary results.
It is therefore my expert opinion that Counsel’s request for a 30% fee award warrants judicial
approval.
* * *
44
71. I have opined that:
the proposed settlement provides excellent relief for class members and that it warrants final judicial approval; and
Class Counsel are entitled to a fee of 30% of the common fund, or $6 million, based on the risks that they took and results that they achieved for the Class.
I declare under penalty of perjury under the laws of the Commonwealth of Massachusetts and the
laws of the United States that the foregoing is true and correct.
___________________________________ March 27, 2013 William B. Rubenstein Cambridge, Massachusetts
EXHIBIT A
PROFESSOR WILLIAM B. RUBENSTEIN
Harvard Law School - AR323 617.496.7320 (O)1545 Massachusetts Avenue 617.909.1447 (M)Cambridge, MA 02138 [email protected]
ACADEMIC EMPLOYMENT
HARVARD LAW SCHOOL, CAMBRIDGE MASidley Austin Professor of Law 2011-Professor of Law 2007-2011Bruce Bromley Visiting Professor of Law 2006-2007Visiting Professor of Law 2003-2004, 2005-2006Lecturer in Law 1990-1996
Courses: Civil Procedure; Class Action Law; RemediesAwards: 2012 Albert M. Sacks-Paul A. Freund Award for Teaching Excellence
UCLA SCHOOL OF LAW, LOS ANGELES CAProfessor of Law 2002-2007Acting Professor of Law 1997-2002
Courses: Civil Procedure; Complex Litigation; RemediesAwards: 2002 Rutter Award for Excellence in Teaching
Top 20 California Lawyers Under 40, Calif. Law Business (2000)
STANFORD LAW SCHOOL, STANFORD CAActing Associate Professor of Law 1995-1997
Courses: Civil Procedure; Federal LitigationAwards: 1997 John Bingham Hurlbut Award for Excellence in Teaching
YALE LAW SCHOOL, NEW HAVEN CTLecturer in Law 1994, 1995
BENJAMIN N. CARDOZO SCHOOL OF LAW, NEW YORK NYVisiting Professor Summer 2005
LITIGATION-RELATED EMPLOYMENT
AMERICAN CIVIL LIBERTIES UNION, NATIONAL OFFICE, NEW YORK NYProject Director and Staff Counsel 1987-1995
Litigated impact cases in federal and state courts throughout the US. Supervised a staff ofattorneys at the national office, oversaw work of ACLU attorneys around the country, andcoordinated work with private cooperating counsel nationwide. Significant experience incomplex litigation practice and procedural issues; appellate litigation; litigation coordination,planning and oversight.
HON. STANLEY SPORKIN, U.S. DISTRICT COURT, WASHINGTON DCLaw Clerk 1986-87
PUBLIC CITIZEN LITIGATION GROUP, WASHINGTON DCIntern Summer 1985
W.B. Rubenstein Resume Page 2- March 2013
EDUCATION
HARVARD LAW SCHOOL, CAMBRIDGE MAJ.D., 1986, magna cum laude
YALE COLLEGE, NEW HAVEN CTB.A., 1982, magna cum laude
Editor-in-Chief, YALE DAILY NEWS
SELECTED COMPLEX LITIGATION EXPERIENCE
Professional Service and Highlighted Activities
" Sole Author, NEWBERG ON CLASS ACTIONS (4th ed. updates since 2008 and 5th ed. (2011-2015))
" Invited Speaker, Judicial Panel on Multidistrict Litigation, Multidistrict Litigation (MDL) TransfereeJudges Conference, Palm Beach, Florida (invited to present to MDL judges on recent developmentsin class action law (2010-2013)
" Adviser, American Law Institute, Project on the Principles of the Law of Aggregate Litigation,Philadelphia, Pennsylvania
" Author, Amicus brief filed in the United States Supreme Court on behalf of civil procedure andcomplex litigation law professors concerning the importance of the class action lawsuit (AT&TMobility v. Concepcion, No. 09-893, 131 S. Ct. 1740 (2011))
" “Expert’s Corner” (Monthly Column), Class Action Attorney Fee Digest, 2007-2011
" Advisory Board, Class Action Law Monitor (Strafford Publications), 2008-
" Co-Chair, ABA Litigation Section, Mass Torts Committee, Class Action Sub-Committee, 2007
" Planning Committee, American Bar Association, Annual National Institute on Class ActionsConference, 2006, 2007
Expert Witness
" Submitted an expert witness declaration concerning propriety of preliminary settlement approval innationwide consumer class action settlement (Anaya v. Quicktrim, LLC, Case No. CIVVS 120177,California Superior Court, San Bernardino County (2012))
" Submitted expert witness affidavit concerning fee issues in common fund class action (Tuttle v. NewHamshire Med. Malpractice Joint Underwriting Assoc., Case No. 217-2010-CV-00294, NewHampshire Superior Court, Merrimack County (2012))
" Submitted expert witness declaration and deposed concerning class certification issues in nationwidefraud class action (Lauriello v. Caremark, Case No. 03-CV-03-6630, Circuit Court for Jefferson
W.B. Rubenstein Resume Page 3- March 2013
County, Alabama (2012))
" Submitted expert witness declaration in securities class action concerning value of proxy disclosuresachieved through settlement and appropriate level for fee award (Rational Strategies Fund v. Jhung,Case No. BC 460783, California Superior Court, Los Angeles County (2012))
" Retained as expert witness on choice of law issues implicated by proposed nationwide classcertification (Simon v. Metropolitan Property and Cas. Co., Case No. CIV-2008-1008-W, U.S. Dist.Ct., Western District of Oklahoma (2011))
" Retained, deposed, and testified in court as expert witness in fee-related dispute (Blue, et al. v.Hill,Case No. 3:10-CV-02269-O-BK, U.S. Dist. Ct., Northern District of Texas (2011))
" Retained as an expert witness in fee-related dispute (Furth v. Furth, Case No. C11-00071-DMR, U.S.Dist. Ct., Northern District of California (2011))
" Submitted expert witness declaration concerning interim fee application in complex environmentalclass action (DeLeo v. Bouchard Transportation, Civil Action No. PLCV2004-01166-B,Massachusetts Superior Court (2010))
" Retained as an expert witness on common benefit fee issues in MDL proceeding in federal court (Inre Vioxx Products Liability Litigation, MDL Docket No. 1657, U.S. Dist. Ct., Eastern District ofLouisiana (2010))
" Submitted expert witness declaration concerning fee application in securities case (In re Amicas Inc.Shareholder Litigation, Civil Action No. 10-412BLS2, Massachusetts Superior Court (2010))
" Submitted an expert witness declaration concerning fee entitlement and enhancement in non-commonfund class action settlement (Parkinson v. Hyundai Motor America, Inc., Case No. 06-cv-00345, U.S.Dist. Ct., Central District of California (2010))
" Submitted an expert witness declaration concerning class action fee allocation among attorneys (Salvas v. Wal-Mart, Civil Action No. 01-03645, Massachusetts Superior Court (2010))
" Submitted an expert witness declaration concerning settlement approval and fee application in wageand hour class action settlement (Salvas v. Wal-Mart, Civil Action No. 01-03645, MassachusettsSuperior Court (2010))
" Submitted an expert witness declaration concerning objectors’ entitlement to attorney’s fees(Rodriguez v. West Publishing Corp., Case No. CV-05-3222, U.S. Dist. Ct., Central District ofCalifornia (2010))
" Submitted an expert witness declaration concerning fairness of settlement provisions and processes(White v. Experian Information Solutions, Inc., Case No. 05-CV-1070, U.S. Dist. Ct., CentralDistrict of California (2010))
" Submitted an expert witness declaration concerning attorney’s fees in class action fee dispute (Elihu v. Toshiba America Information Systems, Inc., Case No. BC328566, California Superior Court,LosAngeles County (2009))
W.B. Rubenstein Resume Page 4- March 2013
" Submitted an expert witness declaration concerning common benefit fee in MDL proceeding infederal court (In re Genetically Modified Rice Litigation, MDL Docket No. 1811, U.S. Dist. Ct.,Eastern District of Missouri (2009))
" Submitted an expert witness declaration concerning settlement approval and fee application innational MDL class action proceeding (In re Wal-Mart Wage and Hour Employment PracticesLitigation, MDL Docket No. 1735, U.S. District Court for the District of Nevada (2009))
" Submitted an expert witness declaration concerning fee application in national MDL class actionproceeding (In re Dept. of Veterans Affairs (VA) Data Theft Litigation, MDL Docket No. 1796, U.S.District Court for the District of Columbia (2009))
" Submitted an expert witness declaration concerning common benefit fee in mass tort MDLproceeding in federal court (In re Kugel Mesh Products Liability Litigation, MDL Docket No. 1842,U.S. Dist. Ct., District of Rhode Island (2009))
" Submitted an expert witness declaration and supplemental declaration concerning common benefitfee in consolidated mass tort proceedings in state court (In re All Kugel Mesh Individual Cases,Master Docket No. PC-2008-9999, Superior Court, State of Rhode Island (2009))
" Submitted an expert witness declaration concerning process for selecting lead counsel in complexMDL antitrust class action (In re Rail Freight Fuel Surcharge Antitrust Litigation, MDL Docket No.1869, U.S. Dist. Ct., District of Columbia (2008))
" Retained, deposed, and testified in court as expert witness on procedural issues in complex classaction (Hoffman v. American Express, Case No. 2001-022881, California Superior Court, AlamedaCounty (2008))
" Submitted an expert witness declaration concerning fee application in wage and hour class action(Warner v. Experian Information Solutions, Inc., Case No. BC362599, California Superior Court,Los Angeles County (2009))
" Submitted an expert witness declaration concerning fee application in wage and hour class action(Salsgiver v. Yahoo! Inc., Case No. BC367430, California Superior Court, Los Angeles County(2008))
" Submitted an expert witness declaration concerning fee application in wage and hour class action(Voight v. Cisco Systems, Inc., Case No. 106CV075705, California Superior Court, Santa ClaraCounty (2008))
" Retained and deposed as expert witness on fee issues in attorney fee dispute (Stock v. Hafif, Case No. KC034700, California Superior Court, Los Angeles County (2008))
" Submitted an expert witness declaration concerning fee application in consumer class action(Nicholas v. Progressive Direct, Civil Action No. 06-141-DLB, U.S. Dist. Ct., E.D. Ky. (2008))
" Submitted expert witness declaration concerning procedural aspects of national class actionarbitration (Johnson v. Gruma Corp., JAMS Arbitration No. 1220026252 (2007))
W.B. Rubenstein Resume Page 5- March 2013
" Submitted expert witness declaration concerning fee application in securities case (Drulias v. ADECorp., Civil Action No. 06-11033 PBS, U.S. Dist. Court, D. Mass. (2007))
" Submitted expert witness declaration concerning use of expert witness on complex litigation mattersin criminal trial (U.S. v. Gallion, et al., No. 07-39 (WOB) U.S. Dist. Court, E. D. Kentucky (2007))
" Retained as expert witness on fees matters (Heger v. Attorneys’ Title Guaranty Fund, Inc., No. 03-L-398, Illinois Circuit Court, Lake County, IL (2007))
" Retained as expert witness on certification in statewide insurance class action (Wagner v. TravelersProperty Casualty of America, No. 06CV338, Colorado District Court, Boulder County, CO (2007))
" Testified as expert witness concerning fee application in common fund shareholder derivative case(In Re Tenet Health Care Corporate Derivative Litigation, Case No. 01098905, California SuperiorCourt, Santa Barbara Cty, CA (2006))
" Submitted expert witness declaration concerning fee application in common fund shareholderderivative case (In Re Tenet Health Care Corp. Corporate Derivative Litigation, Case No. CV-03-11RSWL, U.S. Dist. Court, C.D. California (2006))
" Retained as expert witness as to certification of class action (Canova v. Imperial Irrigation District,Case No. L-01273, California Superior Court, Imperial Cty, CA (2005))
" Retained as expert witness as to certification of nationwide class action (Enriquez v. Edward D. Jones& Co., Missouri Circuit Court, St. Louis, MO (2005))
" Submitted expert witness declaration concerning reasonableness of class certification, settlement, andfees (Baird v. Thomson Elec. Co., Case No. 00-L-000761, Cir. Ct., Mad. Cty, IL (2000))
" Submitted expert witness declaration on procedural aspects of international contract litigation filedin court in Korea (Estate of Wakefield v. Bishop Han & Jooan Methodist Church (2002))
" Submitted expert witness declaration as to contested factual matters in case involving access to apublic forum (Cimarron Alliance Foundation v. The City of Oklahoma City, Case No. Civ. 2001-1827-C, U.S. Dist. Ct., W. Dist. Oklahoma (2002))
Expert Consultant
" Retained as an expert on Class Action Fairness Act (CAFA) removal issues and successfully briefedand argued remand motion based on local controversy exception (Trevino, et al. v. Cummins, et al.,No. 2:13-cv-00192-JAK-MRW, U.S. Dist. Ct., C. Dist. of California (2013))
" Retained as an expert consultant on class action related issues by consortium of business groups (Inre Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL No.2179, U.S. Dist. Court, E.D. La. (2012-))
" Provided presentation on class certification issues in nationwide medical monitoring classes (In re:National Football League Players’ Concussion Injury Litigation, MDL No. 2323, Case No. 2:12-md-02323-AB, U.S. Dist. Ct., Eastern District of Pennsylvania (2012))
W.B. Rubenstein Resume Page 6- March 2013
" Retained as an expert consultant on class action related issues in mutli-state MDL consumer classaction (In re Sony Corp. SXRD Rear Projection Television Marketing, Sales Practices & Prod.Liability Litig., MDL No. 2102, U.S. Dist. Court, S.D. N.Y. (2009))
" Retained as an expert consultant on class action certification, manageability, and related issues inmutli-state MDL consumer class action (In re Teflon Prod. Liability Litig., MDL No. 1733, U.S. Dist.Court, S.D. Iowa (2008))
" Retained as an expert consultant/co-counsel on certification, manageability, and related issues innationwide anti-trust class action (Brantley v. NBC Universal, No.- CV07-06101 CAS (VBKx), U.S.Dist. Court, C.D. California (2008))
" Retained as an expert consultant on class action issues in complex multi-jurisdictional constructiondispute (Antenucci, et al., v. Washington Assoc. Residential Partner, LLP, et al., Civil No. 08-04194,U.S. Dist. Court, E.D. Pennsylvania (2008))
" Retained as an expert consultant on complex litigation issues in multi-jurisdictional class actionlitigation (McGreevey v. Montana Power Company, No. 08-35137, U.S. Court of Appeals for theNinth Circuit)
" Retained as an expert consultant on class action and attorney fee issues in nationwide consumer classaction (Figueroa v. Sharper Image, Case No. CV-05-21251, U.S. Dist. Court, S.D. Fla. (2007))
" Retained as an expert consultant on attorney’s fees issue in complex class action case (Natural GasAnti-Trust Cases Coordinated Proceedings, D049206, California Court of Appeals, Fourth District(2007))
" Retained as an expert consultant on remedies and procedural matters in complex class action(Sunscreen Cases, JCCP No. 4352, California Superior Court, Los Angeles County (2006))
" Retained as an expert consultant on complex preclusion questions in petition for review to CaliforniaSupreme Court (Mooney v. Caspari, Supreme Court of California (2006))
" Retained as an expert consultant on attorney fee issues in complex common fund case (In Re DietDrugs (Phen/Fen) Products Liability Litigation, U.S. Dist. Court, E. D. Pa. (2006))
" Retained as an expert consultant on procedural matters in series of complex construction lien cases(In re Venetian Lien Litigation, Supreme Court of the State of Nevada (2005-2006))
" Served as an expert consultant on class certification issues in countywide class action (Beauchampv. Los Angeles Cty. Metropolitan Transp. Authority, Case No. CV-98-00402-CBM, U.S. Dist. Ct.,Central Dist. Cal.)
" Served as an expert consultant on class certification issues in state-wide class action (Williams v.State of California, Case No. 312-236, Cal. Superior Court, San Francisco)
" Served as an exert consultant on procedural aspects of complex welfare litigation (Allen v. Anderson, U.S. Dist. Ct., Central Dist. Cal., appeal dism. as moot, 199 F.3d 1331 (9th Cir. 1999))
W.B. Rubenstein Resume Page 7- March 2013
Ethics Opinions
" Provided expert opinion on issues of professional ethics in complex litigation matter (In reProfessional Responsibility Inquiries (20011))
" Provided expert opinion on issues of professional ethics in implicated by nationwide class actionpractice (In re Professional Responsibility Inquiries (2010))
" Provided expert opinion on issues of professional ethics implicated by complex litigation matter (Inre Professional Responsibility Inquiries (2010))
" Provided expert opinion on issues of professional ethics in complex litigation matter (In reProfessional Responsibility Inquiries (2007))
Publications on Class Actions & Procedure
" NEWBERG ON CLASS ACTIONS (William B. Rubenstein, Alba Conte, Herbert B. Newberg) (soleauthor of supplements to 4th edition since 2008 and of 5th ed (forthcoming, 2011-2015))
" Supreme Court Round-Up – Part II, 5 CLASS ACTION ATTORNEY FEE DIGEST 331 (September 2011)
" Supreme Court Round-Up – Part I, 5 CLASS ACTION ATTORNEY FEE DIGEST 263 (July-August 2011)
" Class Action Fee Award Procedures, 5 CLASS ACTION ATTORNEY FEE DIGEST 3 (January 2011)
" The Benefits of Class Action Lawsuits, 4 CLASS ACTION ATTORNEY FEE DIGEST 423 (November2010)
" Contingent Fees for Representing the Government: Developments in California Law, 4 CLASS
ACTION ATTORNEY FEE DIGEST 335 (September 2010)
" Supreme Court Roundup, 4 CLASS ACTION ATTORNEY FEE DIGEST 251 (July 2010)
" SCOTUS Okays Performance Enhancements in Federal Fee Shifting Cases – At Least In Principle,4 CLASS ACTION ATTORNEY FEE DIGEST 135 (April 2010)
" The Puzzling Persistence of the “Mega-Fund” Concept, 4 CLASS ACTION ATTORNEY FEE DIGEST 39(February 2010)
" 2009: Class Action Fee Awards Go Out With A Bang, Not A Whimper, 3 CLASS ACTION ATTORNEY
FEE DIGEST 483 (December 2009)
" Privatizing Government Litigation: Do Campaign Contributors Have An Inside Track?, 3 CLASS
ACTION ATTORNEY FEE DIGEST 407 (October 2009)
" Supreme Court Preview, 3 CLASS ACTION ATTORNEY FEE DIGEST 307 (August 2009)
" Supreme Court Roundup, 3 CLASS ACTION ATTORNEY FEE DIGEST 259 (July 2009)
W.B. Rubenstein Resume Page 8- March 2013
" What We Now Know About How Lead Plaintiffs Select Lead Counsel (And Hence Who GetsAttorneys Fees!) in Securities Cases, 3 CLASS ACTION ATTORNEY FEE DIGEST 219 (June 2009)
" Beware Of Ex Ante Incentive Award Agreements, 3 CLASS ACTION ATTORNEY FEE DIGEST 175 (May2009)
" On What a “Common Benefit Fee” Is, Is Not, and Should Be, 3 CLASS ACTION ATTORNEY FEE
DIGEST 87 (March 2009)
" 2009: Emerging Issues in Class Action Fee Awards, 3 CLASS ACTION ATTORNEY FEE DIGEST 3(January 2009)
" 2008: The Year in Class Action Fee Awards, 2 CLASS ACTION ATTORNEY FEE DIGEST 465(December 2008)
" The Largest Fee Award – Ever!, 2 CLASS ACTION ATTORNEY FEE DIGEST 337 (September 2008)
" Why Are Fee Reductions Always 50%?: On The Imprecision of Sanctions for Imprecise Fee Submissions, 2 CLASS ACTION ATTORNEY FEE DIGEST 295 (August 2008)
" Supreme Court Round-Up, 2 CLASS ACTION ATTORNEY FEE DIGEST 257 (July 2008)
" Fee-Shifting For Wrongful Removals: A Developing Trend?, 2 CLASS ACTION ATTORNEY FEE DIGEST
177 (May 2008)
" You Cut, I Choose: (Two Recent Decisions About) Allocating Fees Among Class Counsel, 2 CLASS
ACTION ATTORNEY FEE DIGEST 137 (April 2008)
" Why The Percentage Method?, 2 CLASS ACTION ATTORNEY FEE DIGEST 93 (March 2008)
" Reasonable Rates: Time To Reload The (Laffey) Matrix, 2 CLASS ACTION ATTORNEY FEE DIGEST
47 (February 2008)
" The “Lodestar Percentage:” A New Concept For Fee Decisions?, 2 CLASS ACTION ATTORNEY FEE
DIGEST 3 (January 2008)
" Class Action Practice Today: An Overview, in ABA SECTION OF LITIGATION, CLASS ACTIONS TODAY
4 (2008)
" How Transparent Are Class Action Outcomes?: Empirical Research on the Availability of ClassAction Claims Data, in CAN INCREASED TRANSPARENCY IMPROVE THE CIVIL JUSTICE SYSTEM?
(tentative title, joint publication of RAND Corporation and UCLA School of Law) (2008) (withNicholas M. Pace)
" The Public Role in Private Law Enforcement: Visions from CAFA (forthcoming)
" Finality in Class Action Litigation: Lessons From Habeas, 82 N.Y.U. L. REV. 791 (2007)
W.B. Rubenstein Resume Page 9- March 2013
" The American Law Institute’s New Approach to Class Action Objectors’ Attorneys Fees, 1 CLASS
ACTION ATTORNEY FEE DIGEST 347 (November 2007)
" The American Law Institute’s New Approach to Class Action Attorneys Fees, 1 CLASS ACTION
ATTORNEY FEE DIGEST 307 (October 2007)
" “The Lawyers Got More Than The Class Did!”: Is It Necessarily Problematic When Attorneys FeesExceed Class Compensation?, 1 CLASS ACTION ATTORNEY FEE DIGEST 233 (August 2007)
" Supreme Court Round-Up, 1 CLASS ACTION ATTORNEY FEE DIGEST 201 (July 2007)
" On The Difference Between Winning and Getting Fees, 1 CLASS ACTION ATTORNEY FEE DIGEST 163(June 2007)
" Divvying Up The Pot: Who Divides Aggregate Fee Awards, How, and How Publicly?, 1 CLASS
ACTION ATTORNEY FEE DIGEST 127 (May 2007)
" On Plaintiff Incentive Payments, 1 CLASS ACTION ATTORNEY FEE DIGEST 95 (April 2007)
" Percentage of What?, 1 CLASS ACTION ATTORNEY FEE DIGEST 63 (March 2007)
" Lodestar v. Percentage: The Partial Success Wrinkle, 1 CLASS ACTION ATTORNEY FEE DIGEST 31(February 2007)(with Hirsh)
" The Fairness Hearing: Adversarial and Regulatory Approaches, 53 U.C.L.A. L. REV. 1435 (2006)(excerpted in THE LAW OF CLASS ACTIONS AND OTHER AGGREGATE LITIGATION 447-449 (RichardA. Nagareda ed., 2009))
" Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action, 74U.M.K.C. L. REV. 709 (2006)
" On What a “Private Attorney General” Is – And Why It Matters, 57 VAND. L. REV. 2129(2004)(excerpted in COMPLEX LITIGATION 63-72 (Kevin R. Johnson, Catherine A. Rogers & John ValeryWhite eds., 2009)).
" The Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865 (2002) (selected for theStanford/Yale Junior Faculty Forum, June 2001)
" A Transactional Model of Adjudication, 89 GEORGETOWN L.J. 371 (2000)
" The Myth of Superiority, 16 CONSTITUTIONAL COMMENTARY 599 (1999)
" Divided We Litigate: Addressing Disputes Among Clients and Lawyers in Civil Rights Campaigns,106 YALE L. J. 1623 (1997) (excerpted in COMPLEX LITIGATION 120-123 (1998))
W.B. Rubenstein Resume Page 10- March 2013
Selected Presentations
" Recent Developments in Class Action Law, MDL Transferee Judges Conference, Palm Beach,Florida, October 29, 2013 (forthcoming)
" Class Action Remedies, ABA 2013 National Institute on Class Actions, Boston, Massachusetts,October 23, 2013 (forthcoming)
" The Public Life of the Private Law: The Logic and Experience of Mass Litigation – Conference inHonor of Richard Nagareda, Vanderbilt Law School, Nashville, Tennessee, September 27-28, 2013(forthcoming)
" Brave New World: The Changing Face of Litigation and Law Firm Finance, Clifford Symposium2013, DePaul University College of Law, Chicago, Illinois, April 18-19, 2013 (forthcoming)
" Twenty-First Century Litigation: Pathologies and Possibilities: A Symposium in Honor of StephenYeazell, UCLA Law Review, UCLA School of Law, Los Angeles, California, January 24-25, 2013
" Litigation’s Mirror: The Procedural Consequences of Social Relationships, Sidley Austin Professorof Law Chair Talk, Harvard Law School, Cambridge, Massachusetts, October 17, 2012
" Alternative Litigation Funding (ALF) in the Class Action Context – Some Initial Thoughts,Alternative Litigation Funding: A Roundtable Discussion Among Experts, George WashingtonUniversity Law School, Washington, D.C., May 2, 2012
" The Operation of Preclusion in Multidistrict Litigation (MDL) Cases, Brooklyn Law School FacultyWorkshop, Brooklyn, New York, April 2, 2012
" The Operation of Preclusion in Multidistrict Litigation (MDL) Cases, Loyola Law School FacultyWorkshop, Los Angeles, California, February 2, 2012
" Recent Developments in Class Action Law and Impact on MDL Cases, MDL Transferee JudgesConference, Palm Beach, Florida, November 2, 2011
" Recent Developments in Class Action Law, MDL Transferee Judges Conference, Palm Beach,Florida, October 26, 2010
" A General Theory of the Class Suit, University of Houston Law Center Colloquium, Houston, Texas,February 3, 2010
" Unpacking The “Rigorous Analysis” Standard, ALI-ABA 12th Annual National Institute on ClassActions, New York, New York, November 7, 2008
" The Public Role in Private Law Enforcement: Visions from CAFA, University of California (BoaltHall) School of Law Civil Justice Workshop, Berkeley, California, February 28, 2008
" The Public Role in Private Law Enforcement: Visions from CAFA, University of Pennsylvania LawReview Symposium, Philadelphia, Pennsylvania, Dec. 1, 2007
W.B. Rubenstein Resume Page 11- March 2013
" Current CAFA Consequences: Has Class Action Practice Changed?, ALI-ABA 11th Annual NationalInstitute on Class Actions, Chicago, Illinois, October 17, 2007
" Using Law Professors as Expert Witnesses in Class Action Lawsuits, ALI-ABA 10th Annual NationalInstitute on Class Actions, San Diego, California, October 6, 2006
" Three Models for Transnational Class Actions, Globalization of Class Action Panel, InternationalLaw Association 2006 Conference, Toronto, Canada, June 6, 2006
" Why Create Litigation?: A Positive Externalities Theory of the Small Claims Class Action, UMKCLaw Review Symposium, Kansas City, Missouri, April 7, 2006
" Marks, Bonds, and Labels: Three New Proposals for Private Oversight of Class Action Settlements,UCLA Law Review Symposium, Los Angeles, California, January 26, 2006
" Class Action Fairness Act, Arnold & Porter, Los Angeles, California, December 6, 2005
" ALI-ABA 9th Annual National Institute on Class Actions, Chicago, Illinois, September 23, 2005
" Class Action Fairness Act, UCLA Alumni Assoc., Los Angeles, California, September 9, 2005
" Class Action Fairness Act, Thelen Reid & Priest, Los Angeles, California, May 12, 2005
" Class Action Fairness Act, Sidley Austin, Los Angeles, California, May 10, 2005
" Class Action Fairness Act, Munger, Tolles & Olson, Los Angeles, California, April 28, 2005
" Class Action Fairness Act, Akin Gump Strauss Hauer Feld, Century City, CA, April 20, 2005
SELECTED OTHER LITIGATION EXPERIENCE
United States Supreme Court
" Authored amicus brief filed on behalf of civil procedure and complex litigation law professorsconcerning the importance of the class action lawsuit (AT&T Mobility v. Concepcion, No. 09-893,131 S. Ct. 1740 (2011))
" Co-counsel in constitutional challenge to display of Christian cross on federal land in California’sMojave preserve (Salazar v. Buono, 130 S. Ct. 1803 (2010))
" Co-authored amicus brief filed on behalf of constitutional law professors arguing againstconstitutionality of Texas criminal law (Lawrence v. Texas, 539 U.S. 558 (2003))
" Co-authored amicus brief on scope of Miranda (Illinois v. Perkins, 496 U.S. 292 (1990))
Consumer Class Action
" Co-counsel in challenge to antenna-related design defect in Apple’s iPhone4 (Dydyk v. Apple Inc., 5:10-cv-02897-HRL, U.S. Dist. Court, N.D. Cal.) (complaint filed June 30, 2010)
W.B. Rubenstein Resume Page 12- March 2013
" Co-class counsel in $8.5 million nationwide class action settlement challenging privacy concernsraised by Google’s Buzz social networking program (In re Google Buzz Privacy Litigation,5:10-cv-00672-JW, U.S. Dist. Court, N.D. Cal.) (amended final judgment June 2, 2011)
Disability
" Co-counsel in successful ADA challenge ($500,000 jury verdict) to the denial of health care inemergency room (Howe v. Hull, 874 F. Supp. 779, 873 F. Supp 72 (N.D. Ohio 1994))
Employment
" Co-counsel in challenges to scope of family benefit programs (Ross v. Denver Dept. of Health, 883P.2d 516 (Colo. App. 1994)); (Phillips v. Wisc. Personnel Com’n, 482 N.W.2d 121 (Wisc. 1992))
Equal Protection
" Co-counsel in (state court phases of) successful challenge to constitutionality of a Colorado ballotinitiative, Amendment 2 (Evans v. Romer, 882 P.2d 1335 (Colo. 1994))
" Co-counsel (and amici) in challenges to rules barring military service by gay people (Able v. UnitedStates, 44 F.3d 128 (2d Cir. 1995); Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc))
" Co-counsel in challenge to the constitutionality of the Attorney General of Georgia’s firing of staffattorney (Shahar v. Bowers, 120 F.3d 211 (11th Cir. 1997))
Fair Housing
" Co-counsel in successful Fair Housing Act case on behalf of group home (Hogar Agua y Vida En elDesierto v. Suarez-Medina, 36 F.3d 177 (1st Cir. 1994))
Family Law
" Co-counsel in challenge to constitutionality of Florida law limiting adoption (Cox v. Florida Dept.of Health and Rehab. Srvcs., 656 So.2d 902 (Fla. 1995))
" Co-authored amicus brief in successful challenge to Hawaii ban on same-sex marriages (Baehr v.Lewin, 852 P.2d 44 (Haw. 1993))
First Amendment
" Co-counsel in successful challenge to constitutionality of Alabama law barring state funding foruniversity student groups (GLBA v. Sessions, 930 F.Supp. 1492 (M.D. Ala. 1996))
" Co-counsel in successful challenge to content restrictions on grants for AIDS education materials(Gay Men’s Health Crisis v. Sullivan, 792 F.Supp. 278 (S.D.N.Y. 1992))
Landlord / Tenant
" Lead counsel in successful challenge to rent control regulation (Braschi v. Stahl Associates Co., 544N.E.2d 49 (N.Y. 1989))
W.B. Rubenstein Resume Page 13- March 2013
Police
" Co-counsel in case challenging DEA brutality (Anderson v. Branen, 27 F.3d 29 (2nd Cir. 1994))
Racial Equality
" Co-authored amicus brief for constitutional law professors challenging constitutionality of Proposition 209 (Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997))
SELECTED OTHER PUBLICATIONS
Editorials
" Follow the Leaders, NEW YORK TIMES, March 15, 2005
" Play It Straight, NEW YORK TIMES, October 16, 2004
" Hiding Behind The Constitution, NEW YORK TIMES, March 20, 2004
" Toward More Perfect Unions, NEW YORK TIMES, November 20, 2003 (with Brad Sears)
" Don’t Ask, Don’t Tell. Don’t Believe It, NEW YORK TIMES, July 20, 1993
" AIDS: Illness and Injustice, WASH. POST, July 26, 1992 (with Nan D. Hunter)
BAR ADMISSIONS
" Massachusetts (2008)" California (2004)" District of Columbia (1987) (inactive)" Pennsylvania (1986) (inactive)" U.S. Supreme Court (1993)" U.S. Court of Appeals for the First Circuit (2010)" U.S. Court of Appeals for the Fifth Circuit (1989)" U.S. Court of Appeals for the Ninth Circuit (2004)" U.S. Court of Appeals for the Eleventh Circuit (1993)" U.S. Court of Appeals for the D.C. Circuit (1993)" U.S. District Courts for the Central District of California (2004)" U.S. District Court for the District of the District of Columbia (1989)" U.S. District Court for the District of Massachusetts (2010)" U.S. District Court for the Northern District of California (2010)
EXHIBIT B
1
EXHIBIT B Case Documents Reviewed by Professor Rubenstein
1. Complaint.
2. First Amended Complaint.
3. Settlement Agreement.
4. Order dated October 17, 2005, denying motion to dismiss First Amended Complaint.
5. Order dated July 29, 2010, denying summary judgment as to plaintiffs Crenshaw and Commonwealth Care Alliance, allowing summary judgment as to plaintiff Health Care For All, and certifying the class.
6. Order dated August 9, 2012, denying AstraZeneca’s second summary judgment motion.
7. Order dated August 21, 2012, denying AstraZeneca’s motions in limine to exclude the testimony of two of Plaintiffs’ experts, Prof. Meredith Rosenthal and Dr. John Abramson.
8. Order dated February 6, 2013, allowing motion for preliminary approval of the settlement
9. Weiss v. AstraZeneca Pharm., Case No. B215901 (Calif. Ct. App. Aug. 30, 2010).
10. Penn. Emp. Benefit Trust Fund v. Zeneca, Inc., 2010 U.S. Dist. LEXIS 44413 (D. Del. May 6, 2010).
11. Prohias v. AstraZeneca Pharm., L.P., 958 So. 2d 1054 (Fla. Ct. App. 2007).
12. DePriest v. AstraZeneca Pharm., L.P., 2009 Ark. 547 (Ark. Nov. 5, 2009).
13. Plaintiffs’ Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement Agreement, Notice to the Class, and Scheduling Fairness Hearing.
14. Plaintiffs’ fee and expense statements for Nexium litigation
15. Expert reports:
a. Declaration of Meredith Rosenthal, Calculation of Damages for the Class of Nexium End-Payors.
b. Rebuttal Declaration of Meredith Rosenthal. c. Clarification of Nexium Damages Table.
2
d. Revised Declaration of John Abramson M.D. e. Rebuttal Declaration of John Abramson M.D. f. Declaration of Aaron S. Kesselheim, M.D., J.D., M.P.H. g. Rebuttal Declaration of Aaron S. Kesselheim, M.D., J.D., M.P.H. h. Rebuttal Expert Report, David A. Kessler, M.D. i. Declaration of David Feigal, M.D., M.P.H. j. Declaration of David A. Flockhart, M.D., Ph.D. k. Declaration of Natalie V. Mizik, Ph.D. l. Declaration of Robert Navarro, Pharm.D. m. Declaration of Gordon Rausser, Ph.D. n. Declaration of Nimish Vakil, M.D.
16. Documents relating to AstraZeneca’s first motions for summary judgment:
a. AstraZeneca’s Memorandum in Support of its Motion for Summary Judgment as
to All Claims Made by Plaintiff Commonwealth Care Alliance. b. Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment as to
All Claims Made by Plaintiff Commonwealth Care Alliance. c. AstraZeneca’s Reply in Support of its Motion for Summary Judgment as to All
Claims Made by Plaintiff Commonwealth Care Alliance. d. AstraZeneca’s Unredacted Memorandum in Support of its Motion for Summary
Judgment as to All Claims Made by Glenn Crenshaw. e. Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment as to
All Claims Made by Plaintiff Glenn Crenshaw. f. AstraZeneca’s Unredacted Reply in Support of its Motion for Summary Judgment
as to All Claims Made by Plaintiff Glenn Crenshaw.
17. Documents relating to Plaintiffs’ motion for class certification:
a. Plaintiffs’ Memorandum of Law in Support of Motion for Class Certification. b. Plaintiffs’ Proffer of Evidence Common to the Class in Support of Class
Certification. c. Plaintiff’s Unredacted Amended Proffer of Evidence Common to the Class in
Support of Class Certification, in Case No. BC 323107 (California Superior Court).
d. Plaintiffs’ Proposed Plan for Trial of Class Claims in Support of Motion for Class Certification.
e. Unredacted Defendants’ Amended Opposition to Plaintiffs Motion for Class Certification and Proffer of Evidence in Support Thereof.
f. Plaintiffs’ Reply in Support of Motion for Class Certification.
18. Documents relating to AstraZeneca’s 2012 motion for summary judgment:
a. Defendants’ Memorandum in Support of Their Motion for Summary Judgment or, in the Alternative, Summary Adjudication.
3
b. Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication.
c. Unredacted Defendants’ Reply in Support of Their Motion for Summary Judgment or, in the Alternative, Summary Adjudication.
19. AstraZeneca’s motions in limine to exclude the testimony of Plaintiffs’ Experts, Dr. Abramson and Dr. Rosenthal:
a. Unredacted Defendants’ Memorandum of Points and Authorities in Support of Their Motion in Limine to Exclude Certain Testimony of Plaintiffs’ Expert John D. Abramson, M.D.
b. Plaintiffs’ Opposition to Defendants’ Motion in Limine to Exclude Testimony of Plaintiffs’ Expert John B. Abramson, M.D.
c. Defendants’ Reply in Support of Their Motion in Limine to Exclude Certain Testimony of Plaintiffs’ Expert John D. Abramson, M.D.
d. Defendants’ Memorandum of Points and Authorities in Support of Their Motion in Limine to Exclude Testimony of Plaintiffs’ Expert Meredith Rosenthal.
e. Plaintiffs’ Opposition to Defendants’ Motion in Limine to Exclude Testimony of Plaintiffs’ Expert Meredith Rosenthal.
f. Defendants’ Reply in Support of Their Motion in Limine to Exclude Testimony of Plaintiffs’ Expert Meredith Rosenthal.
EXHIBIT C
EXHIBIT C Percentage Cases — Massachusetts State Court
CASE NAME CITATION FUND SIZE FEE CASE
TYPE
Salvas v. Wal-Mart Stores, Inc. C.A. No. 01-3645 $40,000,000 38.0% Wage &
Hour
Coggins v. New England Patriots
Football 550 N.E.2d 141 $584,000 34.2% Securities
Keyo, et al. v. The Seaport Hotel C.A. No. 02-3339 $140,000 33.3% Wage &
Hour
Fernandez v. Four Seasons Hotel C.A. No. 02-4689 $1,200,000 33.3% Wage &
Hour
Banks v. SBH Corp. C.A. No. 04-3515 $790,500 33.3% Wage &
Hour
Hough v. Select Restaurants, Inc. C.A. No. 05-1258 ** 33.3% Wage &
Hour
Licari v. Meridien Hotels, Inc. C.A. No. 02-3340 ** 33.3% Wage &
Hour
Lapic v. Boston Coach Corp. C.A. No. 06-0896 ** 30% Wage &
Hour
EXHIBIT D
EXHIBIT D Massachusetts Percentage Cases — Federal
CASE NAME CITATION SIZE OF FUND FEE
AWARDED TYPE OF
CASE In re Relafen
Antitrust Litig. 231 F.R.D. 52 $67,000,000 33% Antitrust
Malanka v. de Castro
1990 WL 253610
$6,000,000 33% Securities
In re Picturetel Corp. Sec. Litig. *
C.A. No. 97-12135-DPW
$12,000,000 33% Securities
Zeid v. Open Env’t Corp. *
C.A. No. 96-12466-EFH
$6,000,000 33% Securities
In re: Copley Pharmaceutical, Inc.
Sec. Litig. **
C.A. No. 94-11897-WGY
$6,300,000 33% Securities
In re Peritus Software Services,
Inc. Securities Litigation**
C.A. No. 98-10578-WGY
$2,800,000 33% Securities
Chalverus, et al. v. Pegasystems, Inc., et
al. *
C.A. No. 97-12570
$5,250,000 33% Securities
Morton v. Kurzweil Applied Intelligence,
Inc.*
C.A. No. 10829
$7,500,000 33% Securities
In re Biopure Securities Litig
C.A. No. 03-12628
$10,000,000 33% Securities
Wilensky v. Digital Equip. Corp.
C.A. No. 94-10752
$5,200,000 33% Securities
In re Thirteen Appeals Arising out
of the San Juan DuPont Hotel Fire
Litig.
56 F.3d 295 $220,000,000 30.9% Mass Disaster
Deckler v. Ionics ***
C.A. No. 03-10393-WGY
$3,000,000 30% FLSA
Dooley v. Liberty Mutual Insurance
Company ***
C.A. No. 01-11029-REK
$6,400,000 28.1% FLSA
Pavlidis v. New England Patriots
Football Club, Inc.
675 F. Supp. 707
$6,500,000 26% Securities
(applying MA fees law)
Wood v. ZC Management, LLC
C.A. No. 3:07-cv-30076-MAP
$14,750,000 25% FLSA/MA Tip
Act Gorsey v. I.M. 1991 WL $850,000 25% Securities
Simon & Co., Inc. 181439 In re Aspen
Technology Inc. Securities Litigation*
C.A. No. 04-12375
$5,600,000 25% Securities
In re Lupron Mktg. and Sales Pracs.
Litig.
2005 WL 2006833
$150,000,000 total; $95,000,000
at issue for fees 25% Consumer
Latorraca v. Centennial
Technologies Inc.
834 F. Supp. 2d 25
$604,000 25% Securities
In re Evergreen Ultra Short
Opportunities Fund Securities Litigation
2012 WL 6184269
$25,000,000 24% Securities
New England Carpenters Health Benefits Fund v.
First Databank, Inc.
2009 WL 2408560
$350,000,000 20.0% Consumer
Fraud
Mazola v. May Dept. Stores Co.
1999 WL 1261312
$25,000,000 20.0% Bankruptcy
In re Fidelity/Micron Sec. Litig.
167 F.3d 735 $10,000,000 17.5% Securities
In re Fidelity/Micron Sec. Litig.
1998 WL 313735
$10,000,000 17.5% Securities
In re Mann & Co., PC v. C-Tech Industries, Inc.
2010 WL 457572
$1,000,000 17.5% Consumer
Fraud
In re Compact Disc Minimum
Advertised Price Antitrust Litig.
216 F.R.D. 197 $143,000,000 10.0% Antitrust
Duhaime v. John Hancock Mut. Life
Ins. Co.
989 F.Supp. 375
Estimated value of $416,000,000
9.3%, subject to further
valuation Securities
Bussie v. Allamerica Financial Corp.
1999 WL 342042
$108,000,000 7.1% Life Insurance
Conley v. Sears, Roebuck and Co.
222 B.R. 181 $165,000,000 4.5% Bankruptcy
In re TJX Companies Retail Sec. Breach Litig.
584 F. Supp. 2d 395
$177,000,000 3.7% Consumer
Privacy
Government Employees Hosp. Ass’n v. Serono
246 F.R.D. 93 $13,200,000 Remanded Consumer
Fraud
Intern., S.A.
* Found in Fernandez v. Four Seasons Hotel ** Found in Keyo v. The Seaport Hotel and World Trade Center Boston ***Found on PACER
EXHIBIT E
EXHIBIT E Percentage Cases — Other Federal Jurisdictions
CASE NAME CITATION COURT SIZE OF
FUND FEE
AWARDED TYPE OF
CASE Beech Cinema, Inc.
v. Twentieth Century Fox Film
Corp.
480 F. Supp. 1195
S.D.N.Y. $136,799 53% Antitrust
Greene v. Emersons Ltd.
1987 WL 11558
S.D.N.Y. $1,175,000 46.2% Securities
In re Ampicillin Antitrust Litig.
526 F. Supp. 494
D.D.C. $7,300,000 45% Antitrust
Friends for All Children, Inc. v.
Lockheed Aircraft Corp.
567 F. Supp. 790
D.C. Cir. $13,500,000 41% Mass Tort
In re Merry-Go-Round Enterprise,
Inc. 244 B.R. 327
Bankr. D. Md.
$185,000,000 40% Bankruptcy
In re Crazy Eddie Sec. Litig.
824 F. Supp. 320
E.D.N.Y. $42,000,000 38.6% Securities
In re Combustion, Inc.
968 F. Supp. 1116
W.D. La. $127,000,000 36% Mass Tort
Adams v. Standard Knitting Mills, Inc.
1978 WL 1074 E.D. Tenn.
$3,087,704.30 35.8% ---
In re Allstar Inns Sec. Litig.
1991 WL 352491
S.D.N.Y. $2,460,000 35% Securities
In re Lease Oil Antitrust Litig.
186 F.R.D. 403 S.D. Tex. $365,000,000 34.6% Antitrust
In re Vitamins Antitrust Litig.
2001 WL 34312839
D.D.C. $365,000,000 34.6% Antitrust
Maywalt v. Parker & Parsley
Petroleum Co.
963 F. Supp. 310
S.D.N.Y. $8,250,000 33.4% Securities
In re Busiprone Patent Antitrust
Litig. 01-MD-1410 S.D.N.Y. $200,000,000 33.33% Antitrust
In re Wedtech Sec. Litig. *
MDL 735, No. 86 CV 8628
S.D.N.Y. $53,000,000 33.3% Securities
Morris v. Lifescan, Inc.
54 Fed. Appx. 663
9th Cir. $14,800,000 33.3% Consumer
In re Medical X-Ray Film Antitrust
Litig.
1998 WL 661515
E.D.N.Y. $39,360,000 33.3% Antitrust
In re Gen. 209 F. Supp. 2d E.D. Pa. $48,000,000 33.3% Securities
Instrument Sec. Litig.
423
Strougo ex rel. Brazilian Equity
Fund, Inc. v. Bassini
258 F. Supp. 2d 254
S.D.N.Y. $1,500,000 33.3% Securities
Cohen v. Apache Corp.
1993 WL 126560
S.D.N.Y. $6,750,000 33.3% Securities
* Citation found in In re Crazy Eddie Sec. Litig., 824 F. Supp. 320, 326 (E.D.N.Y. 1993).
EXHIBIT F
1
EXHIBIT F Effective Attorney Fee Rates Compared To Rates Approved in Other Massachusetts Cases
Years Out of Law School
Approved Billing Rate
Adjusted Billing Rate
(2013 Dollars)*
Case Approving Fee
Comparable Attorneys in This Case
Name, Years Out of Law School Currently, Effective Billing Rate
Partner
$570–735 (2009)
$616.84–795.40 Tuli
Thomas Sobol, 30 (Partner), $590
Jennifer Connolly, 15 (Partner), $575
Craig Spiegel, 34 (Partner), $531
Elizabeth Fegan, 18 (Partner), $525
Christopher O’Hara, 20 (Partner), $500
David Nalven, 28 (Partner), $494
Steve Berman, 37 (Partner), $485
Edward Notargiacomo, 19 (Partner), $428
Erin Flory, 27 (Partner), $330 Gregory Matthews, 17, $300**
$600 (2006) $690.97 Brooks
Automation, Inc.
$565–650 (2011)
$583.15–670.88 Davis
$450–575 (2007)
$503.88–643.84 Fronk
“Associate”
$195–360 (2007)
$218.35–403.10 Fronk
Lauren Barnes, 8 (Partner), $400**
Elaine Byszewski, 11 (Partner), $340**
Daniel Kurowski, 8 (Associate), $300
Robert McGill, 8, $350** Lisa Hasselman, 12 (Partner),
$185** Robert Gaudet, 11, $185** Wanda Garcia, 10 $185** Kimberly Dougherty, 10,
$350**
$250–495 (2009)***
$270.54–535.68***
Tuli
$350–425 (2011)
$361.25–438.65 Davis
Career Paralegal/ Paralegal/“Project
Assistant”
$240–275 (2009)
$259.72–297.60 Tuli
Carrie Flexer, $190 Robert Haegele, $166 Jennifer Bain, $150 Michael Barker, $150 Cameron Bruns, $150 Linaris Casillas, $150 Brandon Cavenaugh, $150 Jennifer Conte, $150 Adrian Garcia, $150 Heather Miller, $149 Jessica Olver, $142 Tiffani Sala, $140 Kevin Acosta, $132 Jennye Mouser, $130 Lynn Brammeier, $95
$140–210 (2011)
$144.50–216.75 Davis
$110–195 (2007)
$123.17–218.35 Fronk
2
Larry Kunzler, $93 Michael Kemple, $78 Corrine Reed, $77
* Adjusted billing rates are adjusted for inflation using the United States Department of Labor, Bureau of Labor Statistics’ CPI Inflation Calculation, available at: http://www.bls.gov/data/inflation_calculator.htm/ . ** Attorneys who are still with the firm have their present position included in parentheses after years currently out of law school. Given the duration of this litigation, it is likely that some of the attorneys who are now partners were actually associates while working on the case. Accordingly, all attorneys who have been out of law school for twelve years or fewer (as of 2013) are listed in the “Associate” category, even if they are now partners. *** Tuli provides three different associate experience rates:
Years of Experience Approved Billing Rate Adjusted Billing Rate
(2013 Dollars)Fourth-Year Associate $410–495 $443.69–535.68 Second-Year Associate $320–385 $346.30–416.64
First-Year Associate $250–335 $270.54–362.53 The Tuli associate numbers used above reflect the entirety of this range, viz., the low-end first-year associate rate ($250/270.54) to the high-end fourth-year associate rate ($495/535.68).