IN RE: ABILIFY (ARIPIPRAZOLE) PRODUCTS LIABILITY LITIGATION
3:16-md-02734
N.D. Fla.Dec 6, 2019Background
- MDL 2734 (In re: Abilify) centralized Abilify compulsivity cases in Oct. 2016; Court appointed leadership and a Special Master/CPA to administer a Common Benefit Fund.
- The parties reached a global settlement announced Feb. 15, 2019; funds available for claimant payments and a common-benefit pool (estimated ~$18.94M).
- Common Benefit Fund Order No. 6 (CBO 6) established the application process: firms submitted narratives, time/expense self-audits, affidavits; 18 firms applied claiming ~70,400 hours (37% document review).
- Special Master Ellen Reisman and CPA Randy Sansom reviewed submissions, held oral presentations, and solicited an agreed percentage allocation; no firm objected to the proposed allocation.
- Recommendations: repay capital contributions in full ($3,610,000.00); reimburse held common-benefit expenses ($1,539,845.35); distribute $13,660,750.00 in common-benefit attorney fees according to the agreed percentage allocations (largest shares to Robins Kaplan, Cory Watson, and AWKO).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Repayment of capital contributions | Firms that funded the Litigation Fund should be fully reimbursed before fee distributions because capital enabled prosecution. | Settlement funds fund claims and common-benefit items; court must ensure reimbursements are appropriate. | Special Master recommends full reimbursement of $3,610,000 to contributing firms before other disbursements. |
| 2) Reimbursement of held common-benefit expenses | Held costs submitted under CBO 1 should be reimbursed without item-by-item re-review to conserve limited funds. | Any duplicative or already-paid shared costs should be excluded; court oversight required. | After preliminary vetting, Special Master recommends reimbursement of $1,539,845.35 as presented. |
| 3) Method of allocating common-benefit fees among firms | Use a qualitative, percentage-based allocation negotiated among applicant firms, guided by Johnson factors and CBO 6 criteria. | The court must ensure reasonableness; some may advocate for independent calculation or different allocation. | Special Master recommends adopting the agreed-upon percentage allocation (total $13,660,750 distributed per percentages; top three firms each receive 19.25%). |
| 4) Role of lodestar cross-check / review standard | Lodestar cross-check is not required in the Eleventh Circuit; qualitative review and deference to counsel agreement are appropriate. | Objectors may urge lodestar cross-check or intensive time/expense scrutiny to confirm reasonableness. | Special Master notes Eleventh Circuit does not require a lodestar cross-check and relied on qualitative factors, peer agreement, and Johnson factors in her recommendation. |
Key Cases Cited
- Camden I Condominium Ass'n, Inc. v. Dunkle, 946 F.2d 768 (11th Cir. 1991) (endorsing use of Johnson factors and percentage-of-recovery approach in common-fund cases)
- In re Home Depot Inc., 931 F.3d 1065 (11th Cir. 2019) (discussing percentage awards and noting lodestar cross-check is not required)
- Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) (establishing multi-factor fee analysis used in common-fund awards)
- Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) (common-fund doctrine: attorneys who create a fund are entitled to reasonable fees from it)
- In re Zyprexa Prods. Liab. Litig., 594 F.3d 113 (2d Cir. 2010) (discussing common-fund principles in mass-tort context)
- In re Vioxx Prods. Liab. Litig., 802 F. Supp. 2d 740 (E.D. La. 2011) (explaining common-benefit doctrine and equitable bases for fee awards)
- Waters v. Int'l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) (noting lodestar may be referenced but is not required in common-fund cases)
- In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) (cautioning against imposing lodestar cross-check as mandatory in common-fund awards)