CASE NO. 19-1849(L) ANDERSON LAW OFFICES; BENJAMIN H ... · Appellants, Anderson Law Offices and Benjamin H. Anderson (“collectively ALO”), request that this Court enter an order

PAUL W. FLOWERS CO., LPA 50 Public Sq., Ste 1910 Cleveland, Ohio 44113 (216) 344-9393 Fax: (216) 9395

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

_________________________________

CASE NO. 19-1849(L) _________________________________

ANDERSON LAW OFFICES; BENJAMIN H. ANDERSON,

Appellants,

-vs-

COMMON BENEFIT FEE AND COST COMMITTEE, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, CHARLESTON

DIVISION CASE NO: 2:10-md-02187 CASE NO: 2:12-md-02325 CASE NO: 2:12-md-02326 CASE NO: 2:12-md-02327 CASE NO: 2:12-md-02387 CASE NO: 2:13-md-02440 CASE NO: 2:14-md-02511

MOTION FOR STAY PENDING APPEAL

Richard L. Gottlieb, Esq. (WV# 1447) Webster J. Arceneaux, III, Esq. (WV# 155) LEWIS GLASSER PLLC 300 Summers Street, Suite 700 Charleston, West Virginia 25301 (304) 345-2000 [email protected] [email protected]

Paul W. Flowers, Esq. (Ohio #0046625) Louis E. Grube, Esq. (Ohio #0091337) PAUL W. FLOWERS CO., L.P.A. 50 Public Square, Suite 1910 Cleveland, Ohio 44113 (216) 344-9393 [email protected] [email protected] Attorneys for Appellants, Anderson Law Offices, and Benjamin H. Anderson

USCA4 Appeal: 19-1853 Doc: 8-1 Filed: 08/09/2019 Pg: 1 of 18 Total Pages:(1 of 331)

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MOTION INTRODUCTION

Appellants, Anderson Law Offices and Benjamin H. Anderson (“collectively ALO”),

request that this Court enter an order staying execution of the entries dated July 25, 2019,

and all supporting and ancillary directives, authorizing disbursements of legal fees and

expenses from the Common Benefit Fund (collectively “Disbursement Orders”). MDL

No. 2187, PTO#:308, Doc#:7367; MDL No. 2325, PTO#:283, Doc#:7444; MDL No.

2326, PTO#:212, Doc#:8226; MDL No. 2327, PTO#:342, Doc#:8453; MDL No. 2387,

PTO#:161, Doc#:2576; MDL No. 2440, PTO#:89, Doc#:737; MDL No. 2511, PTO#:42,

Doc#:244.1 ALO is only seeking to maintain the status quo during this appeal. No bond

is necessary or appropriate in this instance, as these funds will remain safely deposited in

the interest-bearing Common Benefit Fund (“Fund”) that is being managed by the court-

appointed accounting firm.

This appeal arises out of the District Court’s decisions of July 25, 2019, in seven

consolidated Multi-District Litigation (MDL) proceedings, approving the apportionment

and disbursement of a Fund expected to reach $550,000,000.00 to 89 law firms

representing women claiming to have suffered injuries and damages from defective

transvaginal mesh (TVM) implants. Doc#:8453, Pretrial Order#:342 Memorandum

Opinion and Order; PageID#:205790-95. As is customary, the Fund was generated from

settlements and recoveries secured on behalf of these Plaintiffs in an estimated amount

of more than $10 billion. These assessments are intended to compensate those attorneys

who made early contributions to the effort and furnished a roadmap for successfully

1 Identical orders were entered in all seven of the MDL proceedings consolidated in the District Court below. In order to avoid unnecessary repetition, ALO will cite the orders entered in In Re: Ethicon, Inc., Pelvic Repair System Products Liability Litig. (MDL No. 2327), Case No. 12-MD-02327.


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prosecuting such claims. E.g., Brundle on Behalf of Constellis Employee Stock

Ownership Plan B. Wilmington Trust, N.A., 919 F.3d 763, 785-86 (4th Cir. 2019). The

proceedings below were unique in several respects, perhaps the most notable of which

was that the District Court expected all of the “participating counsel” who wanted to be

paid for their work to waive their rights to appellate review. See Doc#:282, Pretrial

Order#:18, pp. 5-6; PageID#:3886-87.

The six-page Disbursement Orders that were recently issued never specifically

addressed dozens of objections that had been timely raised by three of the largest

contributors to the common benefit effort, and proceeded instead to endorse and approve

the percentage allotments that had been proposed by Appellee, Common Benefit Fee and

Cost Committee (“FCC”). Early in this process, the eight FCC member firms initially

determined that they were entitled to almost precisely two-thirds (66%) of the Fund.

Although their time and expense entries were never openly disclosed, simple calculations

revealed that they intended to pay themselves at an average hourly rate of $783.02 while

the average for the other 81 firms was just $268.22. While minor adjustments were made

to the initial allocations over the next ten months by both the FCC and the court-

appointed External Review Specialist (ERS), neither the lopsided two-thirds recovery nor

the nearly three-to-one disparity in the hourly rates were ever significantly altered.

The day after the orders of July 25, 2019, were issued, ALO sought a stay of

execution without bond in the District Court in accordance with Fed.R.Civ.P. 62(b).

Exhibit 1, attached. This request was opposed by the FCC, and ALO’s Reply followed.

Exhibits 2 and 3, attached. In a decision that was issued on August 2, 2019, District Judge

Goodwin denied the request. Exhibit 4, attached. ALO then commenced the instant

appeal later that day.


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STANDARDS

Motions to stay execution of a judgment on appeal are authorized under F.R.A.P.

8(a). The factors that should be considered have been identified as follows:

Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.

Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). The Seventh Circuit has wisely

observed:

Stays, like preliminary injunctions, are necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error.

In re A & F Enterprises, Inc. II, 742 F.3d 763, 766, (7th Cir. 2014). The relevant

considerations are flexible and permit a sliding scale approach where strength on one

factor will override a weakness on another. Grote v. Sebelius, 708 F.3d 850, 853 fn. 2 (7th

Cir. 2013); Humane Society of the United States v. Gutierrez, 523 F.3d 990, 991 (9th Cir.

2008); Washington Metro. Area Transit Commn. v. Holiday Tours, Inc., 559 F.2d 841,

844 (D.C. Cir. 1977); Chicago v. Sessions, 321 F.Supp.3d 855, 881 (N.D. Ill. 2018).

When considering whether to grant an unsecured stay, courts in this Circuit have

generally applied the same standard with an eye toward preserving the status quo and

protecting the non-moving parties. E.g., United States v. O’Shea, S.D.W.V. No. 5:12-cv-

04075, 2015 WL 1822848, *2 (Apr. 21, 2015); Kirby v. Gen. Elec. Co., 210 F.R.D. 180, 195

(W.D.N.C. 2000); see also Ohio Valley Envtl. Coal. v. United States Army Corps of

Eng’rs., No. 3:08-0979, 2010 WL 11565166, *1 (S.D.W.V. May 4, 2010) (applying factors

from Long). Although an alternative to a supersedeas bond may be fashioned, the Court

should seek only to “ ‘make the judgment creditor as well off during the appeal as it would

be if it could execute at once, but no better off.’ ” Alexander v. Chesapeake, Potomac, and


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Tidewater Books, Inc., 190 F.R.D. 190, 193 (E.D.Va. 1999), quoting Olympia Equip.

Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 800 (7th Cir. 1986) (Easterbrook, J.,

concurring).

ANALYSIS

I. The Appropriateness of a Stay Without Bond

As will be developed in the remainder of this Motion, extraordinary circumstances

are presented that justify a stay without bond until the appellate process has been

completed. Holland v. Law, 35 F. Supp. 2d 505, 506 (S.D.W.V. 1999). “The purpose of

requiring the posting of a supersedeas bond is ‘to preserve the status quo during the

pendency of an appeal, [protecting the winning party] from the possibility of loss resulting

from the delay in execution.’” HCD Contractors v. Rouse & Assocs., 168 F.R.D. 508, 512

(E.D. Pa. 1995), quoting Schreiber v. Kellogg, 839 F. Supp. 1157, 1159 (E.D. Pa. 1993); see

also Cayuga Indian Nation of New York v. Pataki, 188 F. Supp. 2d 223, 254 (N.D.N.Y.

2002). The concerns that typically justify such security simply do not exist in a case such

as this, where no judgment at all has been imposed against the appealing party (i.e., ALO)

and the funds in dispute will continue to remain safely preserved in an interest bearing

account managed by a court designated accounting firm, free from any threats of waste

or dissipation. Disbursement Orders, p. 2; PageID#:205791. The only way the status

quo can be maintained is by ensuring that none of those funds are released until a final

disbursement order is issued that has withstood the rigors of appellate review.

None of the parties possess any interests or potential recoveries beyond those

protected assets. This is precisely the sort of “ ‘alternative means of securing the judgment

creditor's interest’ ” that justifies a stay of execution pending appeal without a

supersedeas bond. Holland, 35 F. Supp. 2d at 506, quoting Grand Entertainment Group,

Ltd. v. Star Media Sales, Inc., E.D.P.A. No. 86-5763, 1992 WL 114953, *1-2 (May 18,


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1992). As long as the funds in dispute remain protected, the judgment creditors (i.e., the

participating law firms) will be “as well off during the appeal as [they] would be if [they]

could execute at once, but no better off.’ ” Alexander, 190 F.R.D. at 193, quoting Olympia

Equip. Leasing Co., 786 F.2d at 800 (Easterbrook, J., concurring). If ALO is ordered to

post a supersedeas bond, on the other hand, the interests of the parties will be secured by

more funds than they are collectively entitled to, and in that sense the bond would be

bald surplusage.

Although these realities alone should be sufficient to justify a stay of execution

without bond, the same result is warranted even when the traditional factors are

examined. Long, 432 F.2d at 979. They will now be addressed in turn.

II. Application of the Long Factors

A. Success on the Merits

1. The Flexible Standard

The first question that must be asked is whether ALO can “present a substantial

case on the merits when a serious legal question is involved and show that the balance of

the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555,

565 (5th Cir. 1981); see also Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011).

Although there is a “a minimum threshold for likelihood of success,” the bar “is a low

one[.]” Sofinet v. Immigration and Naturalization Serv., 188 F.3d 703, 707 (7th Cir.

1999). Ohio Valley Envtl. Coal., 2010 WL 11565166, at *2.

2. The Issues of First Impression

As was recognized in Realvirt, LLC v. Lee, 220 F. Supp. 3d 704, 705-06 (E.D. Va.

2016), the first test can be deemed satisfied when a significant relevant issue presents a

matter of first impression. Here, one of the preliminary questions that this Court will be

required to resolve is whether district courts possess the authority to require attorneys to


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waive their appeal rights before they can participate in a common fund recovery. Such

directives were issued relatively early in the proceedings below, which were expressly

approved by some—but not all—of the attorneys performing common benefit work. See

Doc#:282, Pretrial Order#:18, pp. 5-6; PageID#:3886-87.2 While federal courts have

properly enforced waivers of appeal rights that have been freely entered in binding

settlement arrangements, arbitration agreements, and criminal pleas, the FCC has yet to

cite any on-point authorities recognizing that such valuable rights can be forfeited by

silence or acquiescence.

A second issue of first impression for this Court will be whether fundamental

principles of due process and fair play allow the law firms that are charged with

recommending the common benefit fee allocations (i.e., the FCC) to conceal their own

time and expense entries from open scrutiny. In the decision presently under appeal, the

District Court described the review process that had been established as “designed for

transparency and equitable distribution of common benefit fund monies.” Doc#:8453,

Pretrial Order#:342; PageID#:205792. But this plainly had not been the case. Specific

objections had been raised when the FCC members divulged only their time and expense

totals and refused to produce the detailed entries that would have allowed a

determination by the non-members of whether they had been complying with the

restrictions previously imposed by the court. Doc#: 7718, Anderson Law Offices’

Objections to Common Benefit Fee Allocation and Reimbursement of Cost

Recommendations, pp. 3-9. At no time had the FCC ever seriously argued, let alone

2 ALO did electronically sign such an order strictly in connection with two MDL Proceeding that produced little—if any—common benefit fees and expense reimbursements. In re: Cook Medical Inc. Pelvic Repair Systems Product Liability Litig., Case No. 13-MD-02440, Doc#:43, Pretrial Order#:11, p. 14; PageID#:580; In re: Neomedic Pelvic Repair System Products Liability Litig., Case No. 14-MD-02511, Doc#:78, Pretrial Order#:20, p. 16; PageID#:514.


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established, that this data was somehow privileged or otherwise immune from public

disclosure. Yet, without any apparent request from anyone, the District Court ordered

sua sponte that all of the time and expense entries, as well as the supporting materials,

would be reviewed in camera, thereby ensuring that the eight FCC members would

remain impervious to scrutiny and criticism. Doc#:7639, Pretrial Order#:332;

PageID#:188217-18. Although the ensuing objections were silently overruled, no

explanation was ever furnished for how non-members such as ALO could be legally

precluded from reviewing and commenting upon the very evidence that formed the basis

for the court’s fee and expense approval decision.

The practice of precluding attorneys who are expected to share a common benefit

fund from examining each other’s own time and expense submissions was specifically

rejected in In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220, 231-232

(5th Cir. 2008), with the explanation that:

[The Committee members] also contend that the court's post-allocation procedures for hearing or reconsidering objections to fee awards provided [the non-member attorneys] an adequate opportunity to be heard. They did not. Because the court sealed the fee allocation list and placed a gag order on plaintiffs' attorneys, [the attorneys] could not compare their awards to those of other attorneys. They were not furnished with the hours and rates that other attorneys submitted or informed of the Fee Committee's process, yet such information was essential to enable them to challenge how the Fee Committee valued their work. . . . One cannot even compare apples to oranges without knowing what the oranges are.

Id. at 232 (footnote and citation omitted). The sensible due process standards identified

in High Sulfur cannot possibly be satisfied if objecting firms are not allowed to review all

the data and information that a court intends to consider.

3. The District Court’s Faulty Logic

In rejecting the request for a stay pending appeal, the District Court remarked:


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“One who has waived his right to appeal has no chance of succeeding with it.” Exhibit 4,

p. 2. A citation was furnished to the unpublished dismissal entry this Court issued on

June 14, 2019, in an earlier appeal that had been brought by objector Kline & Specter, P.C.

(“K&S”). Immediate review was being sought at that time only of the District Court’s

order, PTO#:327, of January 30, 2019, generally granting a routine request by the FCC to

allot five percent of the settlement and judgment obtained for attorney fees and expenses.

No ruling had yet been issued with regard to the specific allocations amongst the

participating firms. Those decisions were not issued until just recently on July 25, 2019.

Doc#:8453, Pretrial Order#:342; PageID#: 205790-95.

Because the appeals have been brought by different parties based upon different

orders and raising different justifications for reversal, this Court’s dismissal of the K&S

proceedings will have no legal or logical impact upon the instant appeal. Orders dated

June 14, 2019, 4th Cir. Nos. 19-1224 through 19-1230. After explaining the short

procedural course that had unfolded, the panel summarily concluded “that K&S

knowingly and voluntarily agreed to be bound by the district court’s attorneys’ fees and

expenses determinations and, thus, it has waived its right to appeal its attorneys’ fees and

expenses award.” Id., pp. 4-5. As confirmed by the K&S response to the Motion to

Dismiss that is attached as Exhibit 5, the firm did not question whether non-signatories

to a waiver of appeal rights could still be bound by its terms through some sort of applied

acquiescence theory. K&S’s primary arguments were that such waivers are inappropriate

in mass-tort litigation and the firm had been misled into believing that common benefit

work performed in state court litigation would be fairly evaluated. Id., pp. 16-20. ALO’s

circumstances differed markedly, as the small firm had been totally invested in the TVM

effort since roughly May 2011. A substantial portion of this work had been spent

recruiting experts, conducting discovery, and preparing for the landmark bellwether trial


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in New Jersey in Gross v. Ethicon, which produced a verdict of $11.11 million in February

2013.3 The District Court never afforded ALO an option that would allow the firm to

receive payment for its common benefit contributions while preserving the rights to

appeal. The “take-it-or-lose-it” choice that was afforded instead appears to be

unprecedented in modern federal jurisprudence.

As one would expect, appellate waiver agreements are governed by contract law

principles. Goodsell v. Shea, 651 F.2d 765, 767-768 (C.C.P.A. 1981); Averitt v. Southland

Motor Inn of Oklahoma, 720 F.2d 1178, 1180-1181 (10th Cir. 1983); United States v.

Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Quintero, 618 F.3d 746, 751

(7th Cir. 2010) These agreements are enforceable if they are supported by consideration.

In re Lupron Mktg. and Sales Practices Litig., 677 F.3d 21, 31 (1st Cir. 2012); Gramling v.

Food Mach. & Chem. Corp., 151 F. Supp. 853, 856 (W.D.S.C. 1957); United States v. Reap,

391 F.App. 99, 101-102 (2nd Cir. 2010); United States v. Lutchman, 910 F.3d 33, 37 (2nd

Cir. 2018). All ALO “received” in exchange for the purported waiver of appeal rights was

the ability to seek payment for the common benefit work to which the firm was already

entitled under principles of equity. Brundle, 919 F.3d at 785-86. The lack of

consideration furnished is another significant issue of apparent first impression that was

never raised in K&S’s earlier appeal. Exhibit 5.

Another important question that was not resolved in the K&S appeal was whether

the court-mandated appeal waivers are subject to the general rule of strict construction.

See United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). As previously observed,

ALO had only expressly consented to the case management orders that were entered in

3 ALO’s time and expense submissions for the Gross bellwether proceedings, and the FCC’s partial approval of them, are contained in the materials that the FCC was required to submit to the District Court for the in camera review that was ordered sua sponte. ALO was not, and still is not, permitted access to that record evidence, and therefore cannot furnish proper citations to this court.


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the minor Cook and Neomedic MDL proceedings and thus any forfeiture must be confined

to the common benefit fees generated in that litigation (if any).

Furthermore, Participating Counsel has only purportedly acknowledged in the

waivers that the District Court would possess “final, non-appealable authority regarding

the award of fees, the allocation of those fees and awards for costs reimbursements in this

matter.” PTO#:18, pp. 5-6; PageID#:3886-87. The directive repeats this language in a

slightly different form and concludes: “Participating Counsel knowingly and expressly

waive any right to appeal those decisions or the ability to assert the lack of enforceability

of this Agreed Order or to otherwise challenge its adequacy.” Id. The waiver is thus

confined to the actual amounts of the awards and disbursements accepted by the Court

and does not reach the procedure employed to render the allocations. ALO anticipates

that this appeal will be focused precisely upon these questions of whether the remainder

of PTO#:18 and the other applicable orders were satisfied when the FCC and ERS

abandoned the objective lodestar-multiplier fee calculation process and adopted instead

a purely subjective percentage-of-the-funds approach that richly rewarded its own

members and a few favored firms.

It should go without saying that only a knowing and voluntary waiver of the

constitutional right to due process will be enforced by the courts. Walls v. Central Contra

Costa Transit Auth., 653 F.3d 963, 969-70 (9th Cir. 2011); Morrison v. Warren, 375 F.3d

468, 474 (6th Cir. 2004); Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Turner v.

Blackburn, 389 F. Supp. 1250, 1260 (W.D.N.C. 1975). There is no language in PTO#:18,

nor in any other applicable court order, even remotely suggesting that appeal rights were

being forfeited specifically with respect to due process violations. The District Court’s

readily apparent intention was that the amount and allocation of the “award of fees” could

not be appealed. Under the language adopted, however, no one was waiving or


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abandoning their basic rights to a full and fair judicial process.

The FCC has yet to identify any on-point authorities resolving these open issues,

including the dismissal order entered in the distinguishable K&S appeal. The decisions

they will be touting in opposition to this Motion will concern only settlement and

arbitration agreements that were entered at arms-length by parties that actually received

valuable consideration for the waiver of appeal rights. MACTEC, Inc. v. Gorelick, 427

F.3d 821 (10th Cir. 2005) (arbitration agreement); In re Lybarger, 793 F.2d 136 (6th Cir.

1986) (settlement agreement); Brown v. Gillette Co., 723 F.2d 192 (1st Cir. 1983)

(settlement agreement); Goodsell, 651 F.2d 765 (stipulation effectively dismissing appeal

preemptively); Slattery v. Ancient Order of Hibernians in Am., Inc., D.C. Cir. No. 97-

7173, 1998 WL 135601 (Feb. 9, 1998). While the court in Poliquin v. Garden Way, Inc.,

989 F.2d 527, 531 (1st Cir. 1993), did remark in passing that litigants are free to agree not

to pursue specific issues on appeal, the case was decided on other grounds. And although

the FCC has relied upon 1651 North Collins Corp. v. Lab. Corp. of Am., 529 F. App’x 628

(6th Cir. 2013), to support its view on the enforceability of appellate waivers, the

unanimous panel actually concluded that the parties’ agreement was not sufficiently

explicit to accomplish such an objective. Id. at 632.

Given that ALO was not a party to the earlier K&S appeal, the firm should be

afforded an opportunity to raise its own challenges to the District Court’s unprecedented

take-it-or-lose-it appeal waivers.

B. Inevitable Irreparable Injury

ALO stands to suffer irreparable harm if and only if the Fund is disbursed to the

participating firms without any guarantees that the payments can be recouped if this

appeal is wholly or partially successful. If the Disbursement Orders are executed once the

initial 30-day period imposed by Fed.R.Civ.P. 62(a) expires, more than $350,000,000.00


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will be withdrawn from the Common Benefit Fund, cast to the wind, and subject to the

disparate financial whims of almost 90 law firms. And there is no obvious legal

mechanism to claw these payments back should this Court agree with ALO that the

Disbursement Orders are procedurally and substantively flawed. Put most bluntly, there

is a serious and unacceptable risk that any disbursements will be gone for good. See also

In re High Sulfur, 517 F.3d at 231 (“[I]mmediate payments erect a serious obstacle to re-

allocating fees, should the court later alter its award. The court, as its order acknowledges,

would be placed in the difficult position of collecting pro rata sums from dozens of

attorneys. Immediate payment essentially discouraged the court from trying to

unscramble an unfair or erroneous initial allocation.”).

To be sure, a procedural harm can have such significant consequences as to become

irreparable. Ohio Valley Envtl. Coal., 2010 WL 11565166, at *4. Although financial loss

is not typically considered to qualify, Justice Antonin Scalia once observed that if

“expenditures cannot be recouped, the resulting loss may be irreparable.” Philip Morris

USA Inc. v. Scott, 561 U.S. 1301, 1304, 131 S. Ct. 1, 177 L. Ed. 2d 1040 (Scalia, Circuit

Justice 2010); see also Mori v. Internat’l Brotherhood of Boilermakers, 454 U.S. 1301,

1303, 102 S. Ct. 1046, 70 L. Ed. 2d 370 (Rehnquist, Circuit Justice 1981) (remarking that

escrowed funds would be difficult to recover if they were disbursed in an opinion

announcing the decision to stay a mandate of the United States Court of Appeals for the

Ninth Circuit).

The necessity of securing an immediate stay to forestall irreparable harm was

underscored in an analogous Third Circuit appeal from a final award of attorneys’ fees in

a “landmark class action” that had been collected into a Federal MDL. In re Diet Drugs,

582 F.3d 524, 529-530 (3d Cir. 2009). Hundreds of millions of dollars were allocated in

a master settlement to compensate attorneys, and a common benefit fund was created.


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Id. at 532. One firm challenged the allocation on the basis that it treated different classes

of firms differently and it unfairly refunded common benefit assessments to some but not

all firms. Id. at 548-549. When the Third Circuit considered whether ordering relief to

the appellant was even feasible, it was observed:

Months later, those refunds are not likely to be sitting in the bank accounts of the law firms that received them. It seems likely that taxes have been paid, referral counsel has been compensated, and, generally speaking, the refunds have, in all or in part, worked their way through the channels of commerce and, accordingly, would be difficult for the Court to reclaim. We also find it significant—and surprising—that [appellant], who has argued so vigorously that the allocation is unfair, never sought a stay of the refund distribution pending appeal. Had [appellant] moved for a stay, and had the Court granted his motion, the practical difficulties associated with administering the redistribution that he requests would be alleviated. * * * Here, the assessments and fees awarded pursuant to the Settlement Agreement were maintained in escrow accounts under the District Court's control. It is therefore quite possible, perhaps even likely, that the Court would have waived the bond requirement or required a substantially reduced bond in this case.

Id. at 551-552. No such criticism can be leveled against ALO, which has promptly

undertaken every effort to avoid an irreparable wasting of the Fund.

C. The Interests of Other Parties will Remain Secured by the Fund During a Reasonable and Justified Delay

The only possible “harm” that could be experienced by maintaining the status quo

during this appeal is that the law firms that are entitled to a common benefit award will

not be paid as fast they would like. That’s it.

But these firms are in the best position to bear the burden of maintaining the status

quo. “[O]ther parties will not be substantially harmed by [a] stay” of PTO#:342 because

the Fund will be preserved. Long, 432 F.2d at 979; see O’Shea, 2015 WL 1822848, at *2-


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3 (despite the court’s doubts that an appeal would be successful, a stay without bond was

granted because liens on the subject property prevented sale by a defendant and

immediate sale would prevent any possible remedy after review). It should not be

forgotten that these firms have already been well compensated for their own work through

the contingency fees generated by the settlements and verdicts that have produced the

Fund.

An instructive opinion was issued by a West Virginia federal district court that had

considered a motion for a stay of execution pending an appeal from a judgment in favor

of the United States government. O’Shea, 2015 WL 1822848. After a bench trial, the

United States had successfully secured its interest in repayment of tax assessments

against several parcels of real property. Id. at *1. The defendants sought a stay without

posting a supersedeas bond. Id. Although the District Court expressed doubt that the

appeal would be successful, the motion for stay sought to place a hold on the “sale of the

properties at stake,” including “the Defendants’ home and business,” which “could not be

readily reversed should the appellate court find in the Defendants’ favor.” Id. at *2. In

analyzing the potential for harm to the interests of the United States, the District Judge

observed:

Although the United States contends that delay in putting the properties on the market will harm its interests because it may miss the prime property buying seasons of spring, summer, and fall, if such “delay” constitutes prejudice, at all, it is not sufficient prejudice to deny a stay. Further, the United States has not prosecuted this matter, involving tax assessments from more than a decade ago, with any display of urgency to this point, reducing the force of any argument regarding the cost of delay. The public has an interest in both timely enforcement of judgments and in preservation of rights pending final resolution of litigation. The United States' interests in this case, at least with respect to the real property, are largely protected by liens. The Defendants cannot dispose of the real property. Thus, there is little risk that a stay would interfere with the United States'


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ability to collect should the Court's judgment be affirmed on appeal. A stay would preserve the status quo without diminishing the United States' rights pending appeal. (Emphasis added.)

Id. Here too, “there is little risk that a stay would interfere with the * * * ability to collect

should the Court's judgment be affirmed on appeal.” Id., at *2.

D. The Public Interest

It should go without saying that the public’s primary interest should be in ensuring

that courts render fair and equitable decisions in accordance with controlling law, which

can be accomplished with confidence only when litigants are afforded the opportunity to

exhaust their rights to appellate review. Granting a stay without bond will preserve this

fundamental societal objective. Any of the participating firms that legitimately believe

that the District Court’s disbursement orders are unassailable should have no objections

to allowing the review process to proceed to a conclusion, while the Fund remains safely

in a secure account generating interest.

ALO certainly appreciates that “[t]he public has an interest in both timely

enforcement of judgments and in preservation of rights pending final resolution of

litigation.” O’Shea, 2015 WL 1822848, at *2. Under the present circumstances, the only

one of these public interests that is at risk is the preservation of the participating firms’

rights pending an appeal. And as explained in the prior passages, that basic entitlement

is only risked by dissipation of the Fund. In that light, enforcement of the District Court’s

Disbursement Orders will still be “timely” after all appeals have been concluded. Id.


17


CONCLUSION

For the foregoing reasons, this Court should enter an order staying execution of

the orders filed July 25, 2019, MDL No. 2187, PTO#:308, Doc#:7367; MDL No. 2325,

PTO#:283, Doc#:7444; MDL No. 2326, PTO#:212, Doc#:8226; MDL No. 2327,


Doc#:737; MDL No. 2511, PTO#:42, Doc#:244, and all supporting and ancillary entries,

until all avenues of appeal have been exhausted. F.R.A.P. 8(a). To the extent that any

disbursements have been made before this Court is able to rule, the recipients should be

ordered to effectuate the immediate return of funds.

Respectfully Submitted,

s/Richard L. Gottlieb Richard L. Gottlieb, Esq. (WV# 1447) Webster J. Arceneaux, III, Esq. (WV# 155) LEWIS GLASSER PLLC

s/Paul W. Flowers Paul W. Flowers, Esq. (Ohio #0046625) Louis E. Grube, Esq. (Ohio #0091337) PAUL W. FLOWERS CO., L.P.A. Attorneys for Appellants, Anderson Law Offices, and Benjamin H. Anderson


18


CERTIFICATE OF PAGE LIMITATIONS

I certify in accordance with F.R.A.P. 27(d)(2)(A) that according to the word

processing software utilized, the body of the foregoing Motion does not exceed 5,200

words.

s/ Paul W. Flowers Paul W. Flowers, Esq., (#0046625) PAUL W. FLOWERS CO., L.P.A. Attorney for Appellants, Anderson Law Offices, and Benjamin H. Anderson

CERTIFICATE OF SERVICE

I certify that on August 9, 2019, the foregoing Motion was filed electronically.

Notice of this filing will be sent to all parties by operation of the court’s electronic filing

system. Parties may access this filing through the court’s system. In accordance with

Loc.App.R. 27(a) counsel further certifies that a copy of this Motion has been e-mailed to

the following counsel of record, who are not expected to consent to the request:

Benjamin L. Bailey, Esq. Raymond S. Franks, II, Esq. BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 [email protected] [email protected] Attorneys for Appellee, Fee and Cost Committee

s/ Paul W. Flowers Paul W. Flowers, Esq., (#0046625) PAUL W. FLOWERS CO., L.P.A. Attorney for Appellants, Anderson Law Offices, and Benjamin H. Anderson


PAUL W. FLOWERS CO., LPA 50 Public Sq., Ste 1910 Cleveland, Ohio 44113 (216) 344-9393 Fax: (216) 344-9395

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION IN RE: C.R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION ________________________________

IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: BOSTON SCIENTIFIC, PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: COLOPLAST PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: COOK MEDICAL, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: NEOMEDIC PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________

THIS DOCUMENT RELATES TO ALL CASES

MDL NO. 2187 MDL NO. 2325 MDL NO. 2326 MDL NO. 2327 MDL NO. 2387 MDL NO. 2440 MDL NO. 2511

Case 2:12-md-02327 Document 8455 Filed 07/26/19 Page 1 of 18 PageID #: 205805USCA4 Appeal: 19-1853 Doc: 8-2 Filed: 08/09/2019 Pg: 1 of 41 Total Pages:(19 of 331)

2


ANDERSON LAW OFFICES’ MOTION FOR STAY OF EXECUTION OF JUDGMENT

Anderson Law Offices (“ALO”) requests that this Court enter an order staying

execution of the order filed July 29, 2019, authorizing disbursement of funds from the

Common Benefit Fund. (“Disbursement Order”) MDL No. 2187, PTO#:308, Doc#:7367;

MDL No. 2325, PTO#:283, Doc#:7444; MDL No. 2326, PTO#:212, Doc#:8226; MDL

No. 2327, PTO#:342, Doc#:8453; MDL No. 2387, PTO#:161, Doc#:2576; MDL No.

2440, PTO#:89, Doc#:737; MDL No. 2511, PTO#:42, Doc#:244. In the interest of justice,

the status quo should be maintained pending appeal to the United States Court of Appeals

for the Fourth Circuit. Furthermore, this Court should not require a supersedeas bond

because the non-movants suffer no risk of irreparable harm by waiting for disbursement

of funds that will remain safely deposited in the interest-bearing Common Benefit Fund.

STANDARDS

The Federal Rules of Civil Procedure speak only to the mandatory stay of execution

to which an appellant is entitled upon filing of a supersedeas bond. Fed.R.Civ.P. 62(b).

Yet a United States District Court retains inherent discretionary power to stay one of its

judgments without such security pending appeal. Federal Prescription Serv., Inc. v.

American Pharm. Ass’n, 636 F.2d 755, 757-760 (D.C. Cir. 1980); Arban v. West Pub.

Corp., 345 F.3d 390, 409 (6th Cir. 2003); United States v. O’Shea, No. 5:12–cv–04075,

2015 WL 1822848, at *1 (S.D.W.V. April 21, 2015). “Although the posting of a bond is the

‘usual rule,’ * * * the court need not require a bond if it would be unnecessary to protect

the interest of the appellee.” Exxon Corp. v. Esso Workers’ Union, Inc., 963 F. Supp. 58,

60 (B. Mass. 1997) (Citation omitted). Likewise, a stay of execution may still be granted

when arranging for a bond would be impractical as a result of the size of the monetary

judgment. Trans World Airlines, Inc. v. Hughes, 314 F. Supp. 94, 98 (S.D.N.Y. 1970).

The United States Court of Appeals for the Fourth Circuit “has not adopted any

particular standard to guide the district court's exercise of discretion in granting

unsecured stays.” Southeast Booksellers Assn. v. McMaster, 233 F.R.D. 456, 458 (D.S.C.


3


2006). But that Court has considered whether a stay should be granted by analyzing

several familiar factors:

Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.

Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); see also Nken v. Holder, 556 U.S.

418, 433-434, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009) (“The first two factors of the

traditional standard are the most critical.”). When considering whether to grant an

unsecured stay, Courts in this Circuit have generally applied the same standard with an

eye toward preserving the status quo and protecting the non-moving parties. E.g.,

O’Shea, 2015 WL 1822848, at *2; Kirby v. Gen. Elec. Co., 210 F.R.D. 180, 195 (W.D.N.C.

2000); see also Ohio Valley Envtl. Coal. v. United States Army Corps of Eng’rs., No.

3:08-0979, 2010 WL 11565166, at *1 (S.D.W.V. May 4, 2010) (applying factors from

Long). Although a Court may fashion an alternative to a supersedeas bond, the Court

should only seek to “ ‘make the judgment creditor as well off during the appeal as it would

be if it could execute at once, but no better off.’ ” Alexander v. Chesapeake, Potomac, and

Tidewater Books, Inc., 190 F.R.D. 190, 193 (E.D.Va. 1999), quoting Olympia Equip.

Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 800 (7th Cir. 1986) (Easterbrook, J.,

concurring).

ANALYSIS

I. The Appropriateness of a Stay Without Bond

As will be developed in the remainder of this Motion, “extraordinary

circumstances” are presented that justify a stay without bond until the appellate process

has been completed. Holland v. Law, 35 F. Supp. 2d 505, 506 (S.D.W.V. 1999) “The

purpose of requiring the posting of a supersedeas bond is ‘to preserve the status quo

during the pendency of an appeal, [protecting the winning party] from the possibility of

loss resulting from the delay in execution.’ ” HCD Contractors v. Ruse Assocs., 168 F.R.D.


4


508, 512 (E.D. Pa. 1995), quoting Schreiber v. Kellogg, 839 F. Supp. 1157, 1159 (E.D. Pa.

1993); see also Cayuga Indian Nation of New York v. Pataki, 188 F. Supp. 2d 223, 254

(N.D.N.Y. 2002). The concerns that typically justify such security simply do not exist in

a case such as this, where no judgment at all has been imposed against the appealing party

(i.e., ALO) and the funds in dispute will continue to remain safely preserved in an interest

bearing account managed by accounting firm Smith Cochran & Hicks, free from any

threats of waste or dissipation. Disbursement Order, p. 2. The only way the status quo

can be maintained is by ensuring that none of those funds are released until a final

disbursement order is issued that has withstood the rigors of appellate review.

None of the parties possess any interests or potential recoveries beyond those

protected assets. This is precisely the sort of “alternative means of securing the judgment

creditor's interest” that justifies a stay of execution pending appeal without a supersedeas

bond. Holland, 35 F. Supp. 2d at 506, quoting Grand Entertainment Group, Ltd., 1992

WL 114953, at *1-2. As long as the funds in dispute remain safely preserved while

generating interest, the judgment creditors (i.e., the participating law firms) will be “as

well off during the appeal as [they] would be if [they] could execute at once, but no better

off.’ ” Alexander, 190 F.R.D. at 193, quoting Olympia Equip. Leasing Co., 786 F.2d at

800 (Easterbrook, J., concurring). If ALO is ordered to post a supersedeas bond, on the

other hand, the interests of the parties will be secured by more funds than they are

collectively entitled to, and in that sense the bond would be bald surplusage.

Although these realities alone should be sufficient to justify a stay of execution

without bond, the same result is warranted even when the traditional factors are

examined. Long, 432 F.2d at 979. They will now be addressed in turn.

II. Application of the Long Factors

A. Success on the Merits

1. The “Possibility of Success” Test

While ALO does not expect this Court to agree than an appeal will likely succeed,


5


that is not actually the test that should be applied at this juncture. Instead, the mere

“possibility” of success on the merits can be sufficient. Nken, 556 U.S. at 434-435, 129 S.

Ct. 1749, 173 L. Ed. 2d 550. Although there is a “a minimum threshold for likelihood of

success,” the bar “is a low one[.]” Sofinet v. Immigration and Naturalization Serv., 188

F.3d 703, 707 (7th Cir. 1999). “The likelihood-of-success standard does not mean that the

trial court needs to change its mind or develop serious doubts concerning the correctness

of its decision in order to grant a stay pending appeal.” Goldstein v. Miller, 488 F. Supp.

156, 172 (D. Md. 1980). Rather, as explained by the United States Court of Appeals for

the District of Columbia Circuit:

Prior recourse to the initial decisionmaker would hardly be required as a general matter if it could properly grant interim relief only on a prediction that it has rendered an erroneous decision. What is fairly contemplated is that tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained.

Washington Metro. Area Transit Comm. v. Holiday Tours, Inc., 559 F.2d 841, 845

(D.C.Cir. 1977); Ohio Valley Envtl. Coal., 2010 WL 11565166, at *2-3.

ALO has raised a number of objections to the procedures followed by the Fee and

Cost Committee (“FCC”) and External Review Specialist (“ERS”). As well, ALO objected

to the substance of the recommended allocations of the FCC and ERS, but the deficient

procedures hamstrung ALO’s ability to object in greater detail. At this juncture, neither

ALO, nor the FCC, nor any other participating firm has been able to identify any on-point

authority holding that precisely the same procedures utilized by the FCC satisfy the

constitutional guarantees of due process as well as fundamental principles of fair play.

ALO has vigorously litigated whether the procedures utilized by the FCC, the ERS,

and this Court have comported with these basic liberty interests. It is commonly refrained

that “due process is flexible and calls for such procedural protections as the particular

situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d

484 (1972). But it cannot be forgotten that the “flexibility” of due process “is in its scope


6


once it has been determined that some process is due; it is a recognition that not all

situations calling for procedural safeguards call for the same kind of procedure.” Id. For

that reason, the standard by which courts adjudge the mandates of the due process clause

requires an assessment of not only the “risk of an erroneous deprivation” of “the private

interest that will be affected by the official action * * * through the procedures used,” but

also “the probable value, if any, of additional or substitute procedural safeguards” in this

instance. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

ALO has not merely opposed a fee shifting award in a typical lawsuit as was the

case in at least one of the decisions the FCC has so far offered to this Court. Common

Benefit Fee and Cost Committee’s Omnibus Response filed April 8, 2019 (“FCC Omnibus

Resp.”), pp. 25, citing Martinez v. Schock Transfer and Warehouse Co., Inc., 789 F.2d

848, 849-50 (10th Cir. 1986). Rather, ALO has sought an interest in a finite fund that is

proportional to the claims of other interested firms, has objected to the procedures

utilized by the self-interested FCC and the conflicted ERS, and has done its best to identify

the disparities in the allocations while being denied information that is necessary to

compare the relative value of the participating firms. It is precisely this disconnect

between the information that ALO would need in order to compare the work of all of the

participating firms and the scant information that the FCC and ERS have provided that

calls the validity of the proceedings into question.

These proceedings have created a higher-than-usual risk of erroneous deprivation

of the proper value of ALO’s proportional interest in the Common Benefit Fund because

they have been conducted based upon a secret record. The proposed procedural

safeguards—disclosure of the materials utilized by the FCC and ERS, a short period for

review, and a hearing—would be valuable as a check against favoritism and self-dealing.

These are not trifling concerns especially because the competing firms are interested in a

fund worth hundreds of millions of dollars. And there is certainly more than a mere

“possibility” that the United States Court of Appeals for the Fourth Circuit will agree.


7


Although ALO respectfully disagrees with the decision of this court, the fact that the

constitutional sufficiency of the FCC’s procedures is an “admittedly difficult legal

question” establishes enough of a chance that ALO will prevail on the merits to warrant a

stay to preserve the status quo. Holiday Tours, Inc., 559 F.2d at 844.

2. The Purported Waiver of Appeal Rights

ALO is mindful that PTO#18 limited the Common Benefit Recovery to only those

law firms that were willing to waive certain appeal rights through the following definition

of “Participating Counsel:”

“Participating Counsel” are counsel who subsequently desire to be considered for common benefit compensation and as a condition thereof agree to the terms and conditions herein and acknowledge that the court will have final, non-appealable authority regarding the award of fees, the allocation of those fees and awards for cost reimbursements in this matter. Participating Counsel have (or will have) agreed to therefore will be bound by the court’s determination on common benefit attorney fee awards, attorney fee allocations, and expense awards, and the Participating Counsel knowingly and expressly waive any right to appeal those decisions or the ability to assert the lack of enforceability of this Agreed Order or to otherwise challenge it adequacy.

Id., pp. 5-6; PageID#:3886-87. Notably, Attorney Anderson was not one of the sixteen

attorneys signing-off on this directive. Id., pp. 15-18; PageID#:3896-99. ALO had little

choice but to acquiesce, as the firm had already been devoted to the TVM common benefit

effort since approximately May 2011. A substantial portion of this work had been spent

recruiting experts, conducting discovery, and preparing for the landmark bellwether trial

in New Jersey in Gross v. Ethicon, which produced a verdict of $11.11 million in February

2013. None of the firms that were already heavily invested in the TVM effort were

afforded the option of receiving compensation for the common benefit work that had

already been performed while retaining their full right to appellate review.

The appeal that ALO intends to pursue of this court’s recent order will differ

markedly from that which was filed earlier on February 28, 2019, by participating firm


8


Kline & Spector. Immediate review was being sought at that time only of this court’s

order, PTO#:327, of January 30, 2019, generally granting a routine request by the FCC to

allot five percent of the settlement and judgment obtained for attorney fees and expenses.

No ruling was issued with regard to the specific allocations amongst the participating

firms. That decision was not issued until just recently on July 25, 2019. Disbursement

Order. That is a final order that ALO now intends to challenge on appeal.

Because the appeals will be brought by different parties based on different orders

and raising different justifications for reversal, the dismissal by the United States Court

of Appeals for the Fourth Circuit of the Kline & Spector proceedings will have no legal or

logical impact upon those that will be brought by ALO. Order dated June 14, 2019, 4th

Cir. Case No. 19-1224. After explaining the short procedural course of another appeal,

the panel summarily concluded “that K&S knowingly and voluntarily agreed to be bound

by the district court’s attorneys’ fees and expenses determinations and, thus, it has waived

its right to appeal its attorneys’ fees and expenses award.” Id., pp. 4-5. As confirmed by

the K&S response to the Motion to Dismiss that is included in the attached appendix, the

firm was not questioning the procedure adopted by the District Court which prohibited

ALO and the other non-FCC member firms from reviewing all the time and expense

submissions, which were examined in camera. Apx. 0001-23. That decision, PTO#:332,

was not issued until March 12, 2019.

Appellate waiver agreements are governed by contract law principles. Goodsell v.

Shea, 651 F.2d 765, 767-768 (C.C.P.A. 1981) (considering whether an agreement to waive

appeal showed “a clear mutual intent not to appeal”); Averitt v. Southland Motor Inn of

Oklahoma, 720 F.2d 1178, 1180-1181 (10th Cir. 1983) (limiting appellate waiver to its

stated scope); United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (Court must

apply contract principles to determine whether a criminal plea agreement waived the

right to appeal on the grounds claimed by defendant-appellant); United States v.

Quintero, 618 F.3d 746, 751 (7th Cir. 2010) (A plea agreement that includes an appellate


9


waiver term “is a contract and is therefore governed by ordinary contract law principles.”).

These agreements are enforceable if they are supported by consideration. In re Lupron

Mktg. and Sales Practices Litig., 677 F.3d 21, 31 (1st Cir. 2012); Gramling v. Food Mach.

& Chem. Corp., 151 F. Supp. 853, 856 (W.D.S.C. 1957); United States v. Reap, 391 F. App’x

99, 101-102 (2d Cir. 2010); United States v. Lutchman, 910 F.3d 33, 37 (2d Cir. 2018)

(appellate waiver not enforceable for lack of consideration). Breach of the agreement is a

valid basis for releasing a party from an appellate waiver agreement. United States v.

Gonzalez, 16 F.3d 985, 988-990 (9th Cir. 1993); see also United States v. Bowe, 257 F.3d

336, 342 (4th Cir. 2001) (“We agree with our sister circuits that a party's waiver of the

right to seek appellate review is not enforceable where the opposing party breaches a plea

agreement.”). And at least in the criminal context, a valid waiver of an appeal in a plea

agreement cannot foreclose an appeal on the issue of whether the government breached

the plea agreement. United States v. Landells, 628 F. App’x 177, 178 (4th Cir. 2015);

United States v. Dawson, 587 F.3d 640, 644 (4th Cir. 2009), fn. 4.

In accordance with these precedents, ALO will be legitimately entitled to seek

appellate review of certain significant aspects of this Court’s disbursement order. In

contrast to the authorities that the FCC will undoubtedly be citing in opposition to this

Motion, there was nothing “negotiated” or “agreed” about PTO#:18’s definition of

“Participating Counsel” with respect to ALO. PageID#:3886-87. Unlike the civil

settlement and criminal plea agreements at issue in those decisions, ALO had no choice

but to abide by the Court’s directives and remain hopeful that no appeal would be

necessary. ALO received nothing in exchange for the putative waiver, and would have

recovered nothing for the considerable common benefit work that had already been

performed over the prior 18 months.

But even assuming that PTO 18 is contractually binding upon ALO, any waiver

must be strictly construed. United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).

Properly viewed, Participating Counsel has only purportedly agreed under PTO#:18 that


10


this Court will possess “final, non-appealable authority regarding the award of fees, the

allocation of those fees and awards for costs reimbursements in this matter.”

PageID#:3886-87. The directive repeats this language in a slightly different form and

concludes that: “The Participating Counsel knowingly and expressly waive any right to

appeal those decisions or the ability to assert the lack of enforceability of this Agreed

Order or to otherwise challenge its adequacy.” Id. The waiver is thus confined to the

actual amounts of the awards and disbursements accepted by the Court, and does not

reach the procedure employed to render the allocations. ALO anticipates that its appeal

will be focused precisely upon these questions of whether the remainder of PTO#:18 and

the other applicable orders were satisfied when the FCC and ERS abandoned the objective

loadstar -multiplier fee calculation process and adopted instead a purely subjective

percentage-of-the-funds approach that richly rewarded its own members and a few

favored firms.

It should go without saying that only a knowing and voluntary waiver of the

constitutional right to due process will be enforced by the courts. Walls v. Central Contra

Costa Transit Auth., 653 F.3d 963, 969-970 (9th Cir. 2011); Morrison v. Warren, 375 F.3d

468, 474 (6th Cir. 2004); Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Turner v.

Blackburn, 389 F. Supp. 1250, 1260 (W.D.N.C. 1975). There is no language in PTO#:18,

nor in any other applicable court order, even remotely suggesting that appeal rights were

being forfeited with respect to due process violations. The readily apparent intention was

that the amount and allocation of the “award of fees” could not be appealed—no one was

waiving or abandoning their basic rights to a full and fair judicial process.

Here, ALO intends to argue inter alia to the Fourth Circuit that a manifestly unfair

playing field was created when the FCC members failed to disclose their own time and

expense entries, which were then reviewed by this Court in an in camera proceeding. No

attempt has been made to explain how such data could possibly be private or privileged.

The FCC was thus allowed to ridicule ALO and the other objecting firms for their


11


purportedly excessive submissions, while successfully precluding any such criticisms of

themselves. Such behind-closed-doors decision-making was specifically disapproved in

In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220, 232 (5th Cir. 2008) ,

where the Fifth Circuit reasoned:

[The Committee members] also contend that the court's post-allocation procedures for hearing or reconsidering objections to fee awards provided [the non-member attorneys] an adequate opportunity to be heard. They did not. Because the court sealed the fee allocation list and placed a gag order on plaintiffs' attorneys, [the attorneys] could not compare their awards to those of other attorneys. They were not furnished with the hours and rates that other attorneys submitted or informed of the Fee Committee's process, yet such information was essential to enable them to challenge how the Fee Committee valued their work. See In re Vitamins Antitrust Litig., 398 F.Supp.2d 209, 234 (D.D.C.2005) (lead counsel responsible for fee allocation must “apply a universally fair standard of allocation to all participants, including itself”). One cannot even compare apples to oranges without knowing what the oranges are. (Footnote omitted.)

Id. at 232. Consistent with High Sulfur and the consensus of due process precedents, a

meaningful “possibility of success” exists upon ALO’s due process challenges

notwithstanding PTO#:18.

This court’s take-it-or-leave-it appeal-waiver order, PTO#:18, is unique in Federal

Jurisdiction in several significant respects, which will distinguish this action from the

authorities that the FCC will undoubtedly be touting in opposition to this Motion. Most

will concern only settlement in arbitration agreements that were entered at arms-length

by parties that both received valuable consideration for the waiver of appeal rights.

Mactec, Inc. v. Gorlik, 427 F.3d 821 (10th Cir. 2005) (arbitration agreement); In re

Lybrager, 793 F.2d 136 (6th Cir. 1986) (settlement agreement); Brown v. Gillette Co., 723

F.2d 192 (1st Cir. 1983) (settlement agreement); Goodfell v. Shea, 651 F.2d 765 (C.C.P.A

1981) (stipulation effectively dismissing appeal preemptively); Slattery v. Ancient Order

of Hibernians in America, Inc., No. 97-7173, 1998 WL 135601 (B.C. App. 1998). While

the court in Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993) did remark in


12


passing that litigants are free to agree not to pursue specific issues on appeal, the case was

decided on other grounds. And while the FCC has relied upon 1651 North Collins Corp.

v. Lab. Corp. of America, 529 F. App’x 628 (6th Cir. 2013), to support its view on the

enforceability of appellate waivers, the unanimous panel actually concluded that the

parties’ agreement was not sufficiently explicit to accomplish such an objective. Id. at

632.

As in 1651 North Collins Corp., PTO#:18 cannot reasonably be construed to

effectuate a waiver of ALO’s right to seek appellate review over whether this Court

dutifully complied with its own orders and abided by the basic guarantees of

constitutional due process during the course of the fee allocation proceedings. No litigant

would ever willingly enter a waiver of appellate rights if the result is that the litigation

becomes a free-for-all without rules or limits. At most PTO#:18 can be interpreted only

as prohibiting any judicial review of the fee allocations in and of themselves, but still

allowing proper challenges to the process adopted and employed by the court.

B. Inevitable Irreparable Injury

ALO stands to suffer irreparable harm if and only if the Common Benefit Fund is

disbursed to the participating firms without any guarantees that the payments can be

recouped if an appeal is wholly or partially successful. If the Disbursement Order is

executed once the initial 30-day period imposed by Fed.R.Civ.P. 62(a) expires, more than

$350,000,000.00 will be withdrawn from the Common Benefit Fund, cast to the wind,

and subject to the disparate financial whims of greater than 90 law firms. And there is no

obvious legal mechanism to claw these payments back should the United States Court of

Appeals for the Fourth Circuit agree with ALO that the Disbursement Order was

procedurally and substantively flawed. Put most bluntly, there is a serious and

unacceptable risk that any disbursements will be gone for good.

To be sure, a purely procedural harm can be so significant as to become

irreparable. Ohio Valley Envtl. Coal., 2010 WL 11565166, at *4. Although financial loss


13


is not typically considered to qualify, Justice Antonin Scalia once observed:

Normally the mere payment of money is not considered irreparable, see Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), but that is because money can usually be recovered from the person to whom it is paid. If expenditures cannot be recouped, the resulting loss may be irreparable.

Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1304, 131 S. Ct. 1, 177 L. Ed. 2d 1040 (Scalia,

Circuit Justice 2010); see also Mori v. Boilermakers, 454 U.S. 1301, 1303, 102 S. Ct. 1046,

70 L. Ed. 2d 370 (Rhenquist, Circuit Justice 1981) (remarking that escrowed funds would

be difficult to recover if they were disbursed in an opinion announcing the decision to stay

a mandate of the United States Court of Appeals for the Ninth Circuit).

The United States Court of Appeals for the Third Circuit once considered an appeal

from a final award of attorneys’ fees in a “landmark class action” that had been collected

into a Federal MDL in the United States District Court for the Eastern District of

Pennsylvania. In re Diet Drugs, 582 F.3d 524, 529-530 (3d Cir. 2009). Hundreds of

millions of dollars were allocated in a master settlement to compensate attorneys, and a

common benefit fund was created. Id. at 532. One firm challenged the allocation on the

basis that it treated different classes of firms differently and it unfairly refunded common

benefit assessments to some but not all firms. Id. at 548-549. When the Third Circuit

considered whether ordering relief to the appellant was even feasible, it was observed:

Months later, those refunds are not likely to be sitting in the bank accounts of the law firms that received them. It seems likely that taxes have been paid, referral counsel has been compensated, and, generally speaking, the refunds have, in all or in part, worked their way through the channels of commerce and, accordingly, would be difficult for the Court to reclaim. We also find it significant—and surprising—that [appellant], who has argued so vigorously that the allocation is unfair, never sought a stay of the refund distribution pending appeal. Had [appellant] moved for a stay, and had the Court granted his motion, the practical difficulties associated with administering the redistribution that he requests would be alleviated. When pressed on the matter during oral argument, [appellant] asserted that, in order to request a stay, he would


14


have had to post a supersedeas bond—a bond that, given the enormous amount of money at issue in this case, he would not have been able to afford—so the Court probably would not have granted his request anyway. That defeatist stance is too convenient an excuse. * * * Here, the assessments and fees awarded pursuant to the Settlement Agreement were maintained in escrow accounts under the District Court's control. It is therefore quite possible, perhaps even likely, that the Court would have waived the bond requirement or required a substantially reduced bond in this case.

Id. at 551-552. See also In re High Sulfur, 517 F.3d at 231 (“[I]mmediate payments erect

a serious obstacle to re-allocating fees, should the court later alter its award. The court,

as its order acknowledges, would be placed in the difficult position of collecting pro rata

sums from dozens of attorneys. Immediate payment essentially discouraged the court

from trying to unscramble an unfair or erroneous initial allocation.”).

The Common Benefit Fund is currently administered by a neutral third-party

institution, and it is at no risk of any loss beyond payment of reasonable management fees

so that the fund may be made productive. Disbursement Order, p. 2. If disbursed, the

payments will not be secured in any manner. Most likely the money will be promptly

spent. And if the funds are dissipated during the time that the Disbursement Order is

appealed, it is unlikely that 1) there is a legal mechanism for recoupment of funds from

dozens of participating firms, or that 2) future sums paid into the fund will be large

enough to reconfigure disbursements to account for any changes that may be ordered by

the Fourth Circuit. In re Diet Drugs, 582 F.3d at 551-552. For these reasons, the only

risk of irreparable harm to any of the participating firms is presented by the possibility

that disbursements of the Common Benefit Fund will be made free and clear of any legal

responsibility to safeguard the payments.

C. The Interests of Other Parties will Remain Secured by the Fund During a Reasonable and Justified Delay

The firms participating in these proceedings are in the best position to bear the


15


burden of maintaining the status quo. “[O]ther parties will not be substantially harmed

by [a] stay” of the Disbursement Order because the Common Benefit Fund will be

preserved. Robinson, 432 F.2d at 979. Indeed these firms have already been waiting for

years for recovery from the Common Benefit Fund, which was established on August 26,

2013. PTO#:62; Doc#:747. Moreover, the Common Benefit Fund will compensate these

firms over and above recoveries that have been acquired directly from their own clients.

District Judge Irene C. Berger once considered a motion for a stay of execution

pending an appeal from a judgment in favor of the United States of America, and the

Court issued an order that is instructive. O’Shea, 2015 WL 1822848. After a bench trial,

the United States had successfully secured its interest in repayment of tax assessments

against several parcels of real property. Id. at *1. The defendants sought a stay without

posting a supersedeas bond. Id. Although the Court expressed doubt that the appeal

would be successful, the motion for stay sought to place a hold on the “sale of the

properties at stake,” including “the Defendants’ home and business,” which “could not be

readily reversed should the appellate court find in the Defendants’ favor.” Id. at *2. In

analyzing the potential for harm to the interests of the United States, the Court observed:

Although the United States contends that delay in putting the properties on the market will harm its interests because it may miss the prime property buying seasons of spring, summer, and fall, if such “delay” constitutes prejudice, at all, it is not sufficient prejudice to deny a stay. Further, the United States has not prosecuted this matter, involving tax assessments from more than a decade ago, with any display of urgency to this point, reducing the force of any argument regarding the cost of delay. The public has an interest in both timely enforcement of judgments and in preservation of rights pending final resolution of litigation. The United States' interests in this case, at least with respect to the real property, are largely protected by liens. The Defendants cannot dispose of the real property. Thus, there is little risk that a stay would interfere with the United States' ability to collect should the Court's judgment be affirmed on appeal. A stay would preserve the status quo without diminishing the United States' rights pending appeal. (Emphasis added.)


16


Id.

Like in O’Shea, this is not a case where the interests of the parties will be harmed

in any manner if a stay is issued—the sole consequence of a postponement of the

disbursements will be a justified and predictable wait for the money. There is no reason

to believe that the participating firms risk any loss of time-value of the Common Benefit

Funds due to market fluctuations because it is inconceivable that a fund worth hundreds

of millions of dollars currently sits in zero-interest deposit accounts. Accordingly, “there

is little risk that a stay would interfere with the * * * ability to collect should the Court's

judgment be affirmed on appeal.” O’Shea, 2015 WL 1822848, at *2.

Viewed differently, it is well settled that no bond will be required when the

appealing judgment-debtor possesses sufficient assets and resources to pay the amount

owed if the final order is affirmed. Frommert v. Conkright, 639 F. Supp. 2d 305, 313-314

(W.D.N.Y. 2009); Exxon Corp., 963 F. Supp. at 60; Dutton v. Johnson Cnty. Bd. of Cnty.

Comm’rs., 884 F. Supp. 431, 435 (B. Kan. 1995); Sealover v. Canada, 806 F. Supp. 59, 62

(M.D. Pa. 1992). While there is no judgment debtor in this instance, there is an interest-

bearing fund that is being controlled by the court which will always be sufficient to satisfy

the Common Benefit Fee Allocations that are ultimately approved. There is thus no

practical difference between the case sub judice and those involving a fully collectible

judgment debtor that seeks to exercise its right to appeal.

D. The Public Interest

It should go without saying that the public’s primary interest should be in ensuring

that courts render fair and equitable decisions in accordance with controlling law, which

can be accomplished with confidence only when litigants are afforded the opportunity to

exhaust their rights to appellate review. Granting a stay without bond will preserve this

fundamental societal objective. Any of the participating firms that legitimately believe

that this court’s disbursement order is unassailable should have no objections to allowing

the review process to proceed to a conclusion, while the Common Benefit Funds remain


17


safely in a secure account generating interest.

ALO certainly appreciates that “[t]he public has an interest in both timely

enforcement of judgments and in preservation of rights pending final resolution of

litigation.” O’Shea, 2015 WL 1822848, at *2. Under the present circumstances, the only

one of these public interests that is at risk is the preservation of the participating firms’

rights pending an appeal. And as explained in the prior passages, that basic right is only

risked by dissipation of the fund. In that light, enforcement of this Court’s Disbursement

Order will still be “timely” after all appeals have been concluded. Id.

CONCLUSION


the order filed July 25, 2019, MDL No. 2187, PTO#:308, Doc#:7367; MDL No. 2325,



Doc#:737; MDL No. 2511, PTO#:42, Doc#:244, until all avenues of appeal have been

exhausted. Fed.R.Civ.P. 62.


s/Richard L. Gottlieb Richard L. Gottlieb, Esq. (WV# 1447) Webster J. Arceneaux, III, Esq. (WV# 155) LEWIS GLASSER PLLC 300 Summers Street, Suite 700 Charleston, West Virginia 25301 (304) 345-2000 [email protected] [email protected]

s/Paul W. Flowers Paul W. Flowers, Esq. (Ohio #0046625) Louis E. Grube, Esq. (Ohio #0091337) PAUL W. FLOWERS CO., L.P.A. 50 Public Square, Suite 1910 Cleveland, Ohio 44113 (216) 344-9393 [email protected] [email protected] Attorneys for Anderson Law Offices


18



I hereby certify that on the 26th of July, 2019, the foregoing Motion was filed

electronically. Notice of this filing will be sent to all parties by operation of the court’s

electronic filing system. Parties may access this filing through the court’s system.

s/Paul W. Flowers Paul W. Flowers, Esq. (#0046625) PAUL W. FLOWERS, CO., L.P.A. Attorney for Anderson Law Offices



No. 19-1224L

IN RE: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION

KLINE & SPECTER, P.C. Appellant

v.

COMMON BENEFIT FEE AND COST COMMITTEE,

Appellee.

APPELLANT’S RESPONSE TO THE MOTION TO DISMISS

On appeal from an Order of the United States District Court for the Southern District of West Virginia, entered January 30, 2019, in Docket No. 2:12-md-02327

Shanin Specter, Esquire Lee B. Balefsky, Esquire Charles L. Becker, Esquire KLINE & SPECTER, P.C. 1525 Locust Street Philadelphia, PA 19102 (215) 772-1000

Charles M. Love, III, Esquire Floyd E. Boone, Esquire BOWLES RICE, LLP 600 Quarrier Street Charleston, WV 25301 (304) 347-1100 Counsel for Appellant Kline & Specter, P.C.

USCA4 Appeal: 19-1224 Doc: 18 Filed: 04/12/2019 Pg: 1 of 238

APX. 0001

Case 2:12-md-02327 Document 8455-1 Filed 07/26/19 Page 1 of 23 PageID #: 205823USCA4 Appeal: 19-1853 Doc: 8-2 Filed: 08/09/2019 Pg: 19 of 41 Total Pages:(37 of 331)

I. STATEMENT OF THE CASE

A. Over 100,000 women have filed lawsuits alleging injury caused by pelvic mesh devices. Most of these cases have been managed by Judge Goodwin through a series of multidistrict litigation programs.

Pelvic organ prolapse and stress urinary incontinence are common conditions

associated with aging and childbirth. Beginning in the mid-1990s, seven medical device

manufacturers sold plastic mesh medical devices marketed for these conditions. While

the devices vary in some respects, they consistently involve plastic mesh that is

permanently implanted into a woman’s pelvis by way of insertion through the vagina

and then through incisions in the vaginal wall.

Unfortunately, many of the women implanted with the plastic mesh devices

developed significant and permanent injuries. Their injuries include aggravated urinary

symptoms, such as frequency, urge incontinence, urinary retention, and nocturia; injury

to their pelvic organs from the adhesion and erosion of the mesh to the urethra,

bladder, and exterior vaginal wall; tissue degradation and scarring on pelvic organs;

deformation of the vagina; acute and chronic pelvic and leg pain; dyspareunia (chronic

pain with intercourse); and sexual disfunction. In most cases, the plastic mesh cannot

be completely removed. These conditions are usually irreversible. By 2019, more than

100,000 women had filed suit in federal and state courts claiming that they were injured

by the seven defendants’ plastic mesh products.

In 2010, the Judicial Panel on Multidistrict Litigation transferred a group of cases

filed by women concerning C.R. Bard’s Avaulta device (for prolapse repair) to the U.S.


APX. 0002


District Court in the Southern District of West Virginia. In re Avaulta Pelvic Support Sys.

Prods. Liab., 746 F.Supp.2d 1362, MDL No. 2187 (J.P.M.L. 2010). Over the next four

years, the Judicial Panel on Multidistrict Litigation created six other multidistrict

litigation programs and transferred cases to the U.S. District Court for the Southern

District of West Virginia. The Panel appointed Judge Joseph Goodwin to oversee all

seven MDL programs. The programs are:

1. In re: C.R. Bard, Pelvic Repair System Products Liability Litigation, No. 19-1225 (2:10-md-02187);

2. In re: American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation, No. 19-1227 (2:12-md-02325);

3. In re: Boston Scientific Corp., Pelvic Repair System Products Liability Litigation, No.

19-1226 (2:12-md-02326); 4. In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation, No. 19-1224

(L) (2:12-md-02327); 5. In re: Coloplast Corp., Pelvic Support Systems Products Liability Litigation, No. 19-

1229 (2:12-md-02387) 6. In re: Cook Medical, Inc., Pelvic Repair System Products Liability Litigation, No. 19-

1230 (2:13-md-02440); 7. In re: Neomedic Pelvic Repair System Products Liability Litigation, No. 19-1228 (2:14-

md-02511) B. Judge Goodwin represented that work spent on state-court matters would

be eligible for common benefit fee compensation.

In April 2012, Judge Goodwin entered pre-trial Order No. 4 that created a

Plaintiffs’ Steering Committee intended to coordinate the litigation on the plaintiffs’

side of the case (the “Steering Committee”). See, e.g., In re Ethicon, Inc., Pelvic Repair Sys.


APX. 0003


Prod. Liab. Litig., MDL No. 2327, 2:10-md-02327 (S. D. W. Va. April 17, 2012); ECF

No. 120 (attached as Exhibit “A”).1 Judge Goodwin appointed attorneys from 61 law

firms representing plaintiffs across the country, including Mr. Lee Balefsky of Appellant

Kline & Specter, P.C. The Steering Committee was charged with developing legal

strategies, complex discovery, and case development on the plaintiffs’ behalf.

Although pelvic mesh litigation was just getting started, the Steering Committee

created a framework for paying fees based on case resolutions to attorneys who

performed common-benefit work and for reimbursing expenses incurred for the

common benefit. In October 2012, Judge Goodwin entered PTO No. 18 to

memorialize the Steering Committee’s preliminary agreed-upon framework. See, e.g., In

re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-md-02327 (S. D.

W. Va. Oct. 4, 2012); ECF No. 282 (attached as Exhibit “B”). The Order provided

that any member of the Steering Committee was deemed to be a “Participating

Counsel.” In turn, the Order provided that any Participating Counsel who

subsequently sought to be considered for common-benefit compensation was deemed

to have agreed that the Court had “final, nonappealable authority” concerning the

award and allocation of common-benefit fees. The Order further provided that such

Participating Counsel waived their right to appeal any decision concerning common-

benefit fees. The Order stated in relevant part as follows:

1 The Court entered identical Orders in all seven multidistrict litigation programs.


APX. 0004


For [Steering Committee] counsel appointed by the court or acting under the direction of the leadership of the [Steering Committee], the recovery of common benefit time and cost reimbursements will be allowed and is essential. This will be for “participating counsel” as defined herein. Furthermore, participating counsel shall only be eligible to receive common benefit attorneys’ fees and cost reimbursement if the time expended, costs incurred and activity in question were (a) for the common benefit, (b) appropriately authorized (as defined herein specifically in section 3), (c) timely submitted, and (d) approved by this court. This Order sets forth the guidelines regarding the submission and compensability of common benefit time and expenses.

* * * *

“Participating Counsel” are counsel who subsequently desire to be considered for common benefit compensation and as a condition thereof agree to the terms and conditions herein and acknowledge that the court will have final, non-appealable authority regarding the award of fees, the allocation of those fees and awards for cost reimbursements in this matter. Participating Counsel have (or will have) agreed to and therefore will be bound by the court’s determination on common benefit attorney fee awards, attorney fee allocations, and expense awards, and the Participating Counsel knowingly and expressly waive any right to appeal those decisions or the ability to assert the lack of enforceability of this Agreed Order or to otherwise challenge its adequacy. Nothing in this Agreed Order shall be construed to prohibit an agreement between the [Steering Committee] and state court litigants who may later seek a common benefit allocation.

Id.

Crucially, for Kline & Specter, this Order made clear that time spent on state-

court matters “will be compensable time” for common-benefit purposes. The Order

was explicit on this point:

D. Common Benefit Work: 1. Examples of authorized and unauthorized common benefit work include but are not limited to:

* * * *


APX. 0005


k. Bellwether Trials. While the work-up of individual cases is not considered common benefit, in the event that a case is selected as part of an approved early preference or bellwether trial process in the MDL or participating state court proceedings, the time and expenses in trying the case (including work performed as part of the approved bellwether process) may be considered for common benefit to the extent it complies with other provisions of this Agreed Order or Participation Agreement. l. Pre-Litigation Hours Materially Advanced. The court will have the authority and discretion to permit the accounting of prelitigation hours materially advanced for common benefit. m. State Court and Bard MDL common benefit hours. The court contemplates that work done for the common benefit through the Bard MDL, in federal litigation prior to the formation of this MDL or through state court proceedings in New Jersey, Delaware, Massachusetts, Minnesota, West Virginia and elsewhere will be compensable time, and can be submitted so long as it has been approved and agreed to by the co-lead of the applicable MDL and/or the Coordinating Co-lead counsel.

Id.

In August 2013, Judge Goodwin entered PTO No. 62 that established a fund to

compensate and reimburse attorneys for services performed and expenses incurred for

common benefit. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327,

2:10-md-02327 (S.D. W. Va. Oct. 4, 2012), ECF No. 747 (attached as Exhibit “C”).

The Order provided that Participating Counsel were entitled to receive work-product

created by other Participating Counsel. In exchange, the Order imposed a 5%

assessment on any recovery realized by any plaintiff represented by a Participating

Counsel. This amount would be withheld from any individual plaintiff’s recovery and

directed into a fund for payment of attorneys’ fees and approved common-benefit and

MDL expenses. Id.


APX. 0006


Significantly, the August 2013 Order made clear that the counsel eligible to make

application for reimbursement from the common-benefit fee fund included not only

members of the Steering Committee, but also attorneys performing common-benefit

work in connection with state-court actions. The Order specifically contemplated that

such time would be eligible for compensation based on the experience, talent and

contribution of the counsel, along with other such facts as the time and effort expended

and the value of the work performed.

a. From time to time the Executive Committee may make application for disbursements for the MDL 2327 Fund for common benefit work and expenses. Upon a proper showing and Order of the Court, payments may be made from the MDL 2327 Fund to attorneys who have provided services or incurred expenses for the joint and common benefit of plaintiffs and claimants whose claims have been treated by this Court as a part of these proceedings in addition to their own client or clients. Such “Eligible Counsel” include:

i. Plaintiffs’ Liaison Counsel and members of the PSC;

ii. Attorneys who have signed the MDL 2327 Attorney Participation Agreement; and

iii. Other attorneys performing similar responsibilities in state court actions, provided that all cases in which any putative common-benefit attorneys have a financial interest are subject to this Agreed Order.

b. In apportioning any fee award to Eligible Counsel, appropriate

consideration will be given to the experience, talent, and contribution made by Eligible Counsel, and to the time and effort expended by each as well as to the type, necessity, and value of the particular legal services rendered.

Id.


APX. 0007


On January 15, 2016, Judge Goodwin entered PTO No. 211 an "Order

Establishing Criteria for Applications to MDL Fund to Compensate and Reimburse

Attorneys for Services Performed and Expenses Incurred for MDL Administration

and Common Benefit and Appointment of Common Benefit Fee and Cost

Committee." In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-

md-02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 1845 (attached as Exhibit “D”). This

Order established the process for reviewing and managing common benefit fees and

expenses. The Order appointed a Fee and Cost Committee, a nine-person

committee responsible for recommending Judge Goodwin the allocation of awards

of attorneys' fees and costs to be made from the common benefit fee fund. Id.

At no point to this date was there any suggestion that state-court work would

not be eligible for compensation from the common-benefit fee fund. The

leadership of the Steering Committee made clear that state-court time was eligible

for compensation. This is reflected in a February 11, 2016 email from Kline &

Specter attorney and Steering Committee member Lee Balefsky partner to the chair

of the Fee and Cost Committee, Henry G. Garrard, III. Mr. Balefsky confirmed

Mr. Garrard’s agreement that state time would be considered for compensation in

the common-benefit fund process:

Henry, thank you for hosting the meeting yesterday in Atlanta. One of our major concerns is the compensation for state court litigation common benefit work. This will confirm that you agreed that such work will be compensated and included in the process. We look forward to working with the committee.


APX. 0008


See Email dated February 11, 2016 (attached as Exhibit "E"). No reply disputing this

arrangement was sent or received.

The eligibility of state court time for common-benefit compensation was

underscored in PTO 262 entered by Judge Goodwin on June 23, 2017. In re Ethicon,

Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-md-02327 (S. D. W. Va.

Oct. 4, 2012); ECF No. 4044 (attached as Exhibit “F”). This Order established the

procedure and provides further guidance for the Fee and Cost Committee’s review

of time and expenses submitted by counsel seeking common benefit

reimbursement. The Order also specifically recognized that state court work would

be considered for compensation:

Common benefit work performed in state court litigation - whether the proceedings are consolidated or not - should be considered to the extent it contributed to the outcome of the litigation and benefitted the MDL. The Court recognizes, particularly to the extent there are agreements between state court attorneys and MDL leadership, that state court attorneys may make an application for common benefit fees and expenses to be fully considered by the FCC. In order for an attorney's work in state court litigation to be considered for payment from the Common Benefit Fund, settlements from the requesting attorneys must include the five percent assessment.

Id. at p. 5.

C. Kline & Specter contributed significantly to mesh litigation, including achieving multiple verdicts in state-court trials.

Kline & Specter represents approximately 3,000 individuals who have filed

lawsuits seeking recovery for personal injuries caused by pelvic mesh implants. Many


APX. 0009


of those individuals filed lawsuits coordinated in the instant MDL proceedings. Other

individuals filed suit in various state courts around the country. As noted above, Kline

& Specter’s Lee Balefsky is a member of the Plaintiffs' Steering Committee. As a result,

Kline & Specter is a Participating Counsel and is subject to the 5% withholding.

In representing its clients, Kline & Specter has invested thousands of hours of

time and spent significant sums to support plaintiffs in pelvic mesh litigation. Relying

by the representation that state court time would be compensable, Kline & Specter

threw itself into litigating cases in state court and achieved considerable success there.

Beginning in 2015, Kline & Specter has tried multiple pelvic mesh cases in the

Philadelphia County Court of Common Pleas. These trials have produced verdicts in

the plaintiffs’ favor of $12.5 million, $13.5 million, $20 million, $2.16 million, $57.1

million, and $41 million—a total of $146.26 million across six verdicts.2 Beyond the

2 Hammons v. Ethicon, Inc. resulted in a plaintiffs’ verdict in December 2015. The jury awarded $5.5 million in compensatory damages and $7 million in punitive damages. This verdict was affirmed by the Pennsylvania Superior Court. On April 10, 2019, the Pennsylvania Supreme Court rejected all appellate issues except as to personal jurisdiction.

Carlino v. Ethicon, Inc. resulted in a plaintiffs’ verdict in February 2016. The jury awarded $3.5 million in compensatory damages and $10 million in punitive damages. The Pennsylvania Superior Court affirmed this verdict on April 11, 2019.

Engleman v. Ethicon, Inc. resulted in a plaintiffs’ verdict in April 2017. The jury

awarded $2.5 million in compensatory damages and $17.5 million in punitive damages. The case is on appeal.


APX. 00010


sheer enormity of the verdicts, Kline & Specter’s success in Philadelphia County has

been essential to mesh litigation by developing successful trial strategies, bolstering trial

packages, bringing about key rulings, weakening Ethicon’s ability to defend these cases,

and driving Ethicon to settle cases. Kline & Specter and its clients have contributed

many millions of dollars to the common benefit fee fund.

D. The Fee and Cost Committee went back on its word concerning the compensability of state-court time.

Years of litigation proceeded under the assumption that state-time would be

eligible for common-benefit compensation. As noted above, Kline & Specter invested

thousands of hours developing and successfully trying multiple cases. Unfortunately,

in February 2018, the Fee and Cost Committee and its “external review specialist,” a

former judge named Daniel J. Stack, issued a supposed “rule” stating that “[o]nce a

favorable result was reached with regard to a particular TVM product, no further state

Beltz v. Ethicon, Inc. resulted in a plaintiffs’ verdict in June 2017. The jury awarded $2.16 million in compensatory damages. This verdict has been affirmed in the Pennsylvania appellate courts

Ebaugh v. Ethicon, Inc. resulted in a plaintiff’s verdict in September 2017. The jury awarded $7.1 million in compensatory damages and $50 million in punitive damages. The case is on appeal.

Emmet v. Ethicon, Inc. resulted in a plaintiffs’ verdict in January 2019. The jury awarded $16 million in compensatory damages and $25 million in punitive damages. The case is on appeal.


APX. 00011


court time was considered by the Fee and Cost Committee as being for the common

benefit.” See Letter Mr. Stack dated February 27, 2018 (attached as Exhibit “G”).

This was not the deal upon which the litigation had been grounded. It was a

material alteration of that deal. Yet in their preliminary recommendations concerning

common-benefit time, the Fee and Cost Committee used this “rule” as an excuse for

not recognizing a substantial amount of Kline & Specter’s state court time. The

Committee reasoned that “[i]n the Philadelphia Mass Tort Program in Pennsylvania

State Court, the firm assisted in obtaining several successful verdicts against Ethicon,

although most of those verdicts came on products where Plaintiffs’ verdicts were

already obtained either in the MDL or in prior state courts.” See Exhibit “A” to the

September 13, 2018, Transvaginal Mesh MDL Common Benefit Fee and Cost

Committee Preliminary Written Recommendation (attached as Exhibit “H”). This

“rule” eliminated thousands of hours of important work performed by Kline & Specter

in direct contravention to previous court orders, assurances by the Fee and Cost

Committee, and established mass tort strategy where litigation on multiple fronts is

encouraged. See In re Vioxx, 802 F. Supp. 2d 740, 764, 769, 771, 774 (E.D. La. 2011).

(emphasizing the importance of state court discovery and trials in that analogous

litigation, the value of repeated trials on a single product, and the value of close

consultation with state court judges on common benefit allocation). This about-face

upended a basic premise upon which Kline & Specter became actively involved in pelvic

mesh litigation.


APX. 00012


E. Judge Goodwin orders a 5% common benefit fee even though no global settlement was reached and the results for plaintiffs have generally been poor.

As of this writing, many pelvic mesh cases before Judge Goodwin have

settled—but by no means all of them. Thousands of cases remain unresolved, both

in the MDL and in state-courts around the country. Trials remain a real possibility

for plaintiffs who have completed discovery through MDL “waves.” Further, those

settlements that have occurred are wholly inadequate given the per case settlement

average of approximately $40,000, the seriousness and permanence of the injuries

suffered by the plaintiffs, and the average trial award of over $10 million.

Notwithstanding the lack of global settlement, on November 12, 2018, the

Fee and Cost Committee filed a Petition for an Award of Common Benefit

Attorneys' Fees and Expenses. It sought a final order that 5% of all individual

awards be held back to form a common-benefit fund that would be allocated to

counsel who performed common benefit work for fees and reimbursement of

expenses. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-md-

02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 7200 (attached as Exhibit “I”). In effect,

the Fee and Cost Committee sought distribution of all money that had been received

by the common benefit fee fund (approximately $366 million and growing) even though

this large amount exists simply because of the large number of cases filed.

On November 26, 2018, Kline & Specter objected to the recommended hold

back of 5% as too high and unreasonably generous given the relatively poor outcome


APX. 00013


of this litigation for individual plaintiffs. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab.

Litig., MDL No. 2327, 2:10-md-02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 7242,

(attached as Exhibit “J”). Kline & Specter noted that the defendants had paid

approximately $7.25 billion in settlements and judgments with respect to tens of

thousands of cases; but the Steering Committee had failed to generate a global

settlement and many cases remained pending in the MDL and courts throughout the

country. Kline & Specter noted that the average settlement for pelvic mesh cases was

about $40,000 even though trial results showed that the cases had significantly greater

value—an average exceeding $24 million. As noted above, Kline & Specter had tried

pelvic mesh cases in the Philadelphia County Court of Common Pleas to results of

$12.5 million, $13.5 million, $20 million, $2.5 million, $57.1 million, and $41 million—

a total of $146.26 million. Kline & Specter also highlighted the failure of the Fee and

Cost Committee to ground their request in a valid methodology, and the Committee’s

refusal to recognized state-court time.

On January 30, 2019, Judge Goodwin granted the Fee and Cost Committee

petition and ordered that 5% be held back from every pelvic mesh plaintiffs’ recovery,

creating a common-benefit fund of $366,102,875.06 at this juncture. That fund is

expected to grow as more cases resolve and 5% would be held back from those

recoveries as well. At the current rate, the fund is predicted to exceed $550 million

before all cases resolve. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No.

2327, 2:10-md-02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 7519, (attached as Exhibit


APX. 00014


“K”). This Order was cross-filed in each of the 7 MDL dockets concerning pelvic

mesh.3

On February 28, 2019, Kline & Specter appealed the order in each of the

MDL dockets. This Court sua sponte consolidated cases under the above-referenced

lead docket. On April 2, 2019, the Fee and Cost Committee moved to dismiss the

appeals on the ground that Kline & Specter had waived its right to an appeal. This

response ensues.

3 The orders and dockets are:

1. In C.R. Bard, Pelvic Repair System Products Liability Litigation, Docket No. 2:1O- md-02187, Pretrial Order #298 and Memorandum Opinion entered January 30, 2019, Docket Entry No. 6986 (granting the Common Benefit Fee and Cost Committee's Petition for an Award of Common Benefit Attorneys' Fees and Expenses.

2. In American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation,

Docket No. 2:12-md-02325, Pretrial Order #273 and Memorandum Opinion entered January 30, 2019, Docket Entry No. 7122 (same).

3. In Boston Scientific, Corp., Pelvic Repair System Products Liability Litigation, Docket No. 2:12-md-02326, Pretrial Order #201 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 7758 (same).

4. In Ethicon, Inc., Pelvic Repair System Products Liability Litigation, Docket No. 2:12-md-02327, Pretrial Order #327 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 7519 (same).

5. In Coloplast, Pelvic Repair System Products Liability Litigation, Docket No. 2:1O- md-02187, Pretrial Order #148 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 2337 (same).

6. In Cook Medical, Pelvic Repair System Products Liability Litigation, Docket No. 2:13-md-02440, Pretrial Order #86 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 691 (same).

7. In Neomedic, Pelvic Repair System Products Liability Litigation, Docket No. 2:1O- md-02187, Pretrial Order #39 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 198 (same).


APX. 00015


II. ARGUMENT

In its motion to dismiss, the Fee and Cost Committee highlights the portion of

PTO No. 18 stating that Participating Counsel such as Kline & Specter have waived

any right to appeal Judge Goodwin’s determinations concerning the amount and

allocation of common benefit fees and that Judge Goodwin is the final decision-maker

with respect to those issues. This language should not be enforced for multiple reasons.

First, the persons financially impacted by the 5% order had no participation in

forming the order—the plaintiffs themselves. The money being directed into the

common benefit fee fund comes off the top of any judgment or settlement. Yet no

client participated in the development of this order. Indeed, over 2,800 of Kline &

Specter’s clients were not even represented by counsel when Pre-Trial Order No. 18

was entered on October 4, 2012. The application of an Order barring appeal to persons

who were not represented, had not filed suit, and whose cases were not part of the

MDL when the Order was entered violates the due process rights of “reasonable notice

and opportunity to be heard.” See Boddie v. Connecticut, 401 U.S. 371, 378 (1971). An

agreement not to appeal cannot apply to people who were not parties or signatories

when the agreement was made. See Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 313 (1950). ((due process requires that “deprivation of life, liberty or property

by adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case.”).


APX. 00016


Appellee cites numerous cases where a party to litigation has waived a right to

appeal. None of them remotely touch on the circumstances present here, where an

order entered at the outset of litigation is being invoked to deprive appellate and

substantive rights of persons were not even litigants when the order was entered—who

had no part in the discussions with the Steering Committee or the order itself. Appellee

focuses initially on Poliquin v. Garden Way, Inc., 989 F.2d 527 (1st Cir.1993), where a

plaintiff agreed to a protective order concerning the confidentiality of documents.

After the case resolved, the plaintiff filed a motion to determine whether he could

publicize certain items. The defendant opposed the motion on substantive grounds

and the district court denied the motion. On appeal, the defendant argued that the

plaintiff had agreed to be “bound” by the underlying order and settlement, and hence

waived his right to an appeal. The First Circuit rejected this argument because it was

being raised for the first time on appeal. In reaching the merits, the First Circuit also

noted that “appellate courts have discretion to resolve issues waived or abandoned at

trial.” Id. at 531. The facts of Poliquin are removed from this case. If Poliquin stands

for anything, it is that this Court has the power and discretion to hear Kline & Specter’s

appeal on the merits.

Appellee also focuses on Brown v. Gillette Co., 723 F.2d 192 (1st Cir. 1983), where

the parties had reached a settlement agreement under which the district court was

granted final and binding authority to award certain damages. The parties also agreed

to waive any and all right of appeal related to the court’s decision. The defendant was


APX. 00017


unhappy with the district court’s decision and appealed. The First Circuit dismissed

the appeal on the ground that the defendant was bound by the waiver. The Court

explained that “those who give up the advantage of a lawsuit in return for obligations

contained in a negotiated decree, rely upon and have a right to expect a fairly literal

interpretation of the bargain that was struck and approved by the court.” Id. at 192-93.

Here, the plaintiffs did not participate in the discussions that resulted in PTO No. 18.

They did not agree to issuance of the Order. Thousands of Kline & Specter’s clients

were not even represented and had not filed suit when that Order was issued. Those

people did not “give up” their procedural and substantive rights in exchange for a

negotiated settlement. Yet Appellee proposes that those rights were denied from the

outset. The facts in Brown highlight the equitable and legal distinctions that render this

case entirely different. The result in Brown was correct. By contrast, Appellee’s

argument is unconscionable and wrong.

Appellee also focuses on In re Lybarger, 793 F.2d 136 (6th Cir. 1986). This was

an age discrimination action where the parties entered into a settlement, memorialized

in a consent decree, providing that the district court’s decision concerning attorneys’

fees would be final and not appealable. The plaintiff filed a supplemental motion for

payment of attorneys’ fee, which the district court denied. The Sixth Circuit dismissed

the plaintiff’s resulting appeal on the basis that the plaintiff had waived her right to

appeal and assumed the risk of an unreasonable decision. Id. at 138-39. As with Brown,

the contrasting facts of Lybarger underscore the unfairness inherent in depriving


APX. 00018


plaintiffs of the right to challenge a judicial decision impacting (and decreasing) their

monetary recoveries on the basis of an order entered at the outset of the litigation,

without notice or an opportunity to be heard.

Taken as a whole, the numerous cases cited by Appellee involved multiple

different issues. They involve settlements agreements, contract disputes, stipulations,

and criminal plea agreements—all involving a party who made a knowing and voluntary

decision to reach a binding agreement after litigating their substantive rights. None of

them involve the scenario presented here. At best, those cases involve a party directly

involved in the litigation who made a knowing and voluntary choice to waive an

appellate right. “A waiver is ordinarily an intentional relinquishment or abandonment

of a known right or privilege.” See Johnson v. Zerbst, 304 U.S 458, 464 (1938). That

simply was not the case here—not for the thousands of Kline & Specter clients who

came to be represented and filed suit after the October 2012 Order was entered. The

contrasting facts of Appellee’s cases only underscore the validity of this appeal.

At bottom, the “waiver” language relied upon by Appellee represents an

unconscionable and unprecedented effort to abrogate the authority and jurisdiction of

this Court and the Supreme Court. It is especially wrong to abrogate the right of appeal

in the mass tort context, which is an area of litigation fraught with conflict among many

parties and their counsel and with the potential for abuse. See Elizabeth Chamblee

Burch and Margaret Williams, Repeat Players in Multidistrict Litigation: The Social Network,

102 Cornell L. Rev. 1445 (Sept. 2017) (discussing the lack of rules and oversight that


APX. 00019


allow mass tort settlements to be an area ripe for self-enriching behavior by insider law

firms). These systematic problems necessitate the corrective hand of our appellate

system—at least the opportunity for the appellate system to consider correction. For lead

counsel to even suggest abrogation of a right of appeal in an early pre-trial order

presages a serious potential for abuse licensed and emboldened by the knowledge that

no appeal may be heard—not by this Court, or any Court, no matter how serious the

breach of law or fiduciary duty. The motion should be denied on this ground alone.

Second, Kline & Specter would not have acceded to the language in PTO No.

18 if not for the representation that time spent litigating state-court cases would be

eligible for common-benefit fees. Kline & Specter was told that state-court time would

be compensable both by the Court and the Fee and Cost Committee. The firm relied

on those representations when it did not object to the October 2012 Order. This was

a contractual understanding. A basic principle of contract law is that mutual assent is

required to effectuate a modification to an agreement. See Keco Industries, Inc. v. ACF

Industries, Inc., 316 F.2d. 513, 516 (4th Cir. 1963). There has been no mutual assent here.

The contract has been violated.

As noted above, Judge Goodwin himself stated in PTO No. 18 that state court

work would be compensated:

The court contemplates that work done for the common benefit through the Bard MDL, in federal litigation prior to the formation of this MDL or through state court proceedings in New Jersey, Delaware, Massachusetts, Minnesota, West Virginia and elsewhere will be compensable time, and can be submitted so long as it has been


APX. 00020


approved and agreed to by the co-lead of the applicable MDL and/or the Coordinating Co-lead counsel.

See PTO No. 18 at pp. 11-12. Judge Goodwin stated that state-court time would

be eligible for compensation in subsequent orders as well. Mr. Garrard, the chair

of the Fee and Cost Committee, also committed that state-court time would be

eligible for compensation. The message that state time would be compensated was

clear and consistent. This changed in February 2018, when the Fee and Cost

Committee made an initial recommendation that excluded Kline and Specter state-court

time. Despite multiple assurances including from Judge Goodwin, the Fee and Cost

Committee refused to consider thousands of hours expended by Kline & Specter

in state-court common benefit time. It refused even though state-court trials have

been essential to the overall success of pelvic mesh litigation as they resulted in

substantial plaintiffs’ verdicts and created comprehensive trial packages for the

benefit of all pelvic mesh plaintiffs. It refused even as Kline & Specter’s state-court

awards will be assessed a 5% fee, adding substantially to the common benefit fee

fund, without recognition of the common benefit those verdicts have provided.

This is violative of the rights of Kline & Specter’s clients.

Finally, the waiver language should be disregarded because of the conflict it

creates between attorneys and clients. The clients whose recoveries are being

diminished by an excessive common benefit fee should have the loyalty of their

counsel in pursuing that issue. PTO No. 18 invites counsel to disregard their


APX. 00021


clients’ interests when they have a selfish interest of pursuing a common benefit

fee. This is an unacceptable conflict. It should not have been created at the outset

of the litigation. It should not be honored now.

III. CONCLUSION

The motion should be denied.

Respectfully submitted,

By: /s/ Charles L. Becker

Shanin Specter, Esquire Lee B. Balefsky, Esquire Charles L. Becker, Esquire Kline & Specter, P.C. 1525 Locust Street, 19th Floor Philadelphia, PA 19102 (215) 772-1000 Charles M. Love, III, Esquire Floyd E. Boone, Esquire Bowles Rice, LLP 600 Quarrier Street Charleston, WV 25301 (304) 347-1100.

Dated: April 12, 2019


APX. 00022



On this day, I served the foregoing brief on the following counsel through the

Court’s electronic filing system:

Benjamin L. Bailey, Esquire Raymond S. Franks II, Esquire BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 Counsel for the Appellee Fee and Cost Committee

/s/ Charles L. Becker Charles L. Becker, Esq.



APX. 00023


IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

IN RE: C.R. BARD, INC., PELVIC REPAIR MDL No. 2187 SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: AMERICAN MEDICAL SYSTEMS, INC., MDL No. 2325 PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: BOSTON SCIENTIFIC, PELVIC MDL No. 2326 REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: ETHICON, INC., PELVIC REPAIR MDL No. 2327 SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: COLOPLAST PELVIC REPAIR SYSTEM MDL No. 2387 PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: COOK MEDICAL, INC, PELVIC REPAIR MDL No. 2440 SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: NEOMEDIC PELVIC REPAIR SYSTEM MDL No. 2511 PRODUCT LIABILITY LITIGATION ____________________________________________________ THIS DOCUMENT RELATES TO ALL CASES _________________________________________________________

COMMON BENEFIT FEE AND COST COMMITTEE’S RESPONSE IN OPPOSITION TO ANDERSON LAW OFFICES’

MOTION FOR STAY OF EXECUTION OF JUDGMENT

This Motion to Stay is the latest in a series of unfounded efforts by Anderson Law Offices

(“Anderson”) and a small group of fellow objectors to frustrate and forestall the common benefit

allocation process because they disagree with the amount of fees and expenses they are to receive.


- 2 -

Anderson seeks to avoid the requirement of a bond or other security so as to appeal this Court’s

allocation decision with impunity even though it expressly waived its right to appeal the Court’s

decision on allocation years ago. The Fourth Circuit has already considered the appeal waiver at

issue and held that Anderson’s fellow objector knowingly and voluntarily waived any right to

appeal any award of fees or expenses based upon the same waiver that applies to Anderson.

Anderson’s arguments to overcome this fatal shortcoming, and thus to this Motion to Stay, are

meritless on their face. Moreover, separate and apart from its express waiver of appeal, Anderson’s

purported grounds for appeal – that the allocation should have utilized the lodestar method and

that discovery should have been allowed of other applicants’ time and expense submissions – have

no possibility of success on the merits as this Court has already recognized when it rejected those

arguments as being “entirely without merit.” The Court’s analysis was well-founded, as the

common benefit jurisprudence provides ample support for the Court’s methodology.

ANDERSON’S REQUEST FOR A STAY PENDING AN ANTICIPATED APPEAL WITHOUT BOND OR OTHER SECURITY SHOULD BE DENIED.

Anderson seeks a stay without providing a supersedeas bond or other security. See Holland

v. Law, 35 F. Supp. 2d 505, 506 (S.D.W.V. 1999) (“Defendant's motion for stay is fatally flawed

as she has not proposed a plan to provide security by way of supersedeas bond that adequately

protects the interest of the plaintiffs.”). As stated in Holland v. Law, supra at 506, the power of the

court to waive the supersedeas bond requirement should only be exercised in “‘extraordinary

circumstances,’ and only where alternative means of securing the judgment creditor’s interest are

available.” Anderson’s anticipated appeal, which it knowingly and expressly waived and which

lacks merit in any event, is certainly not the sort of “extraordinary circumstances” that would

justify a stay in lieu of full supersedeas bond or security.


- 3 -

Specifically, in order to obtain a stay without the full supersedeas bond or other security,

the Court considers:

(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and

(4) where the public interest lies.

Barranco v. 3D Systems Corp., 2017 WL 3174948, *1 (W.D.N.C. 2017). As acknowledged by

Anderson in its Motion, the Supreme Court in Nken v. Holder, 556 U.S. 418, 433-434 (2009),

observed that “[t]he first two factors of the traditional standard are the most critical.”

A. Anderson has not made and cannot make a “strong showing that it is likely to succeed on the merits” of its anticipated appeal of this Court’s Allocation Order.

1. Anderson’s suggestion that a “mere possibility” of success on appeal would

suffice to obtain a stay pending appeal is a misstatement of the law and Anderson has at least implicitly conceded that it cannot meet its burden of proof to obtain a stay by conceding that it does not expect this Court to agree that its appeal will be successful.

At the outset of its likelihood of success argument, Anderson candidly concedes that its

Motion to Stay cannot be granted. It is Anderson’s legal burden to make a strong showing of the

likelihood of success on the merits. However, Anderson’s Motion states that it “does not expect

this Court to agree that an appeal will likely succeed . . . .” Mot. for Stay at 4. Thus, Anderson has

effectively told the Court that it does not believe that the Court will find it has met its burden of

making a strong showing that it is likely to succeed on appeal. As held in Ohio Valley

Environmental Coalition, Inc. v. U.S. Army Corps of Engineers, 890 F. Supp. 2d 688, 693 (S.D.

W. Va. 2012), such a failure to make a strong showing of the likelihood of success on appeal is


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itself fatal to a motion to stay pending appeal – even where the other factors may support a stay.

Accord Muffley v. Massey Energy Co., 2008 WL 11377765, *2 (S.D.W.Va. 2008) (Fourth Circuit

requires that party moving for a stay must meet each of the four independent factors of test);

Citifinancial, Inc. v. Lightner, 2007 WL 3088087, *4 (N.D.W.Va. 2007) (observing that in Fourth

Circuit, the test for grant of stay pending appeal involves four separate criteria, “all of which must

be met before a court may grant a stay…” and failure on one factor precludes grant of a stay);

Mylan Pharmaceuticals, Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,

Allied Industrial and Service Workers International Union, Local 8-957, 2008 WL 11452531

(N.D.W.Va. 2008) (under Fourth Circuit law, “where the first factor [strong showing of likelihood

of success on the merits] is not met, the remaining factors need not be considered and the

underlying judgment should not be stayed.”). By his own admission, Anderson cannot strongly

show a likelihood of success on the merits. This Motion to Stay must be denied.

In considering whether the stay applicant has made a strong showing that it is likely to

succeed on the merits, it is not enough that the chance of success on the merits be better than

negligible. U.S. v. Broncheau, 759 F. Supp. 2d 694, 696 (E.D.N.C.2010). See also Ohio Valley

Environmental Coalition, Inc. v. U.S. Army Corps of Engineers, 890 F. Supp. 2d 688, 691

(S.D.W.Va. 2012) (“Requiring a showing of likelihood to prevail on appeal is a higher burden than

requiring that only serious questions concerning the merits be raised.”); Ohio Valley

Environmental Coalition, Inc. v. Pruitt, 2017 WL 1712527, *3 (S.D.W.Va. 2017) (“It is important

to remember that the non-moving party has already prevailed on the merits and a court has

determined that it is entitled to the relief ordered. Applicants for a stay should not be able to unduly

delay ‘the orderly and expeditious disposition of cases’ without an extraordinary showing.”).


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In espousing a non-existent “mere possibility” standard, Anderson misrepresents the

Supreme Court’s holding in Nken v. Holder, 556 U.S. 418 (2009). Anderson inaccurately cites the

Supreme Court’s decision in Nken for the proposition that “the mere ‘possibility’ of success on the

merits can be sufficient.” Mot. for Stay at 4-5. That is precisely the opposite of what the Supreme

Court stated in Nken. Specifically, the Supreme Court instructed that in exercising its discretion, a

court considering a motion to stay pending appeal must consider “whether the stay applicant has

made a strong showing that he is likely to succeed on the merits,” explaining that “[i]t is not

enough that the chance of success on the merits be ‘better than negligible’” and noting that “[e]ven

petitioner acknowledges that ‘[m]ore than a mere possibility of relief is required.’” 566 U.S. at

434-35 (emphasis added). Indeed, Judge Chambers of this Court cited to Nken, in a decision that

is relied upon in Anderson’s brief, for the proposition that “more than a mere possibility of relief

is required” in order to obtain a stay pending appeal. Ohio Valley Environmental Coalition, Inc.

v. U.S. Army Corps of Engineers, 2010 WL 11565166, *3 (S.D. W. Va. 2010) (quoting Nken);

Accord Ohio Valley Environmental Coalition, Inc. v. Pruitt, 2017 WL 1712527 at *3 (S.D.W.Va.

2017). Anderson’s blatantly inaccurate assertion that the Supreme Court stated that a “mere

possibility of success” can satisfy a movant’s burden in seeking to stay a judgment – when the

Supreme Court said the opposite – embodies the lack of merit of this motion generally.

2. Anderson knowingly and expressly waived any right to appeal the Court’s Allocation Order.

Anderson states that it intends to appeal the Court’s Allocation Order of July 25, 2019,

which allocates common benefit attorneys’ fees and expenses. Mot. for Stay at 8 (“No ruling was

issued with regard to the specific allocations amongst the participating firms. That decision was

not issued until just recently on July 25, 2019. . . . That is a final order that ALO now intends

to challenge on appeal.”) (emphasis added). Not only did the Court consider and reject


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Anderson’s objection to the allocation process and result as “entirely without merit,”1 Anderson

knowingly, voluntarily and expressly waived its right to appeal any decision by the Court on

allocation of common benefit attorney’s fees and expenses more than six years ago.

This Court’s “Agreed Order Regarding Management of Timekeeping, Cost

Reimbursement and Related Common Benefit Issues,” entered October 4, 2012 in four of the

related pelvic mesh MDLs and subsequently in the other three related MDLs (hereinafter, the

“Management Order”), set forth the procedures, guidelines and limitations for law firms’

applications for common benefit fees and expenses.2 The Management Order provides in pertinent

part as follows:

“Participating counsel” are counsel who subsequently desire to be considered for common benefit compensation and as a condition thereof agree to the terms and conditions herein and acknowledge that the court will have final, non-appealable authority regarding the award of fees, the allocation of those fees and awards for cost reimbursements in this matter. Participating counsel have (or will have) agreed to and therefore will be bound by the court’s determination on common benefit attorney fee awards, attorney fee allocations, and expense awards, and the Participating Counsel knowingly and expressly waive any right to appeal those decisions or the ability to assert the lack of enforceability of this Agreed Order or to otherwise challenge its adequacy.3

1 “The four remaining objectors focus upon the structure and results of the allocation process which they agreed to several years ago. The objectors have had many opportunities to object, including to the FCC, the External Review Specialist, and me. Having considered each of their objections, I find that they are entirely without merit. All of the remaining objections [ECF Nos. 7150, 7153, 7156, 7171] are DENIED.” Allocation Order at 5. 2 The Management Order was entered in each of the individual MDLs. Respondent has provided the Ethicon MDL Order for reference: Ethicon MDL 2327 PTO # 18. 3 Anderson’s after-the-fact allegation that it “had little choice but to acquiesce” to this appellate waiver several years ago, and that it “received nothing in exchange” for the waiver, is incredulous. The plain language of the Management Order precludes such a manufactured challenge, stating “Participating Counsel knowingly and expressly waive any right to . . . assert the lack of enforceability of this Agreed Order or to otherwise challenge its adequacy.” What Anderson received in exchange for his knowing and express waiver was the ability to have his time and expenses considered for potential common benefit compensation that could be distributed without the unnecessary delay from an invalid appeal by a disgruntled fellow applicant.


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Anderson acknowledges in its Motion for Stay that it is a “Participating Counsel under the

Management Order. Mot. for Stay at 7 (“ALO is mindful that PTO#18 limited the Common Benefit

Recovery to only those law firms that were willing to waive certain appeal rights through the

following definition of ‘Participating Counsel’”).4 Neither Anderson nor any other party or law

firm asserted any timely objection or challenge to the Management Order or to any of its terms or

provisions. In addition, the Management Order was expressly incorporated by reference in each of

the three subsequent common benefit orders entered by the Court.5 Neither Anderson nor any other

law firm or party filed any timely objection to any of these subsequent common benefit orders,

each of which expressly incorporate the Management Order – and its unambiguous appeal waiver

– by reference. Anderson’s recent filing of a separate “Motion to Amend Judgment” in an ill-

founded attempt to sidestep the Management Order’s appeal waiver that it knowingly and

voluntarily agreed to years ago is nothing less than an acknowledgment of the dispositive effect of

the waiver on its anticipated appeal. Anderson’s years-too-late indirect challenge to the

Management Order is foreclosed by the plain language of the order itself, which states

“Participating Counsel knowingly and expressly waive any right to . . . assert the lack of

enforceability of this Agreed Order or to otherwise challenge its adequacy.” Anderson’s after-the-

4 Moreover, Anderson is a member of the court-appointed Plaintiffs’ Steering Committee which the Management Order expressly states was consulted and approved the Management Order before its submission to and entry by this Court more than six years ago. (Management Order, ¶ 3). As this Court recognized, “[e]very member of the PSC approved this Management Order, and the Management Order was entered in the seven MDLs.” (Common Benefit Award, p. 7). Furthermore, contrary to the misrepresentation in this Motion to Stay, Anderson – as Co-Lead Counsel for the Cook MDL – signed and submitted the agreed Management Order which the Court adopted. (Cook MDL 2440 PTO # 11 [Doc. No. 43]). 5 See Ethicon MDL 2327 PTO 62, PTO 211, and PTO 262.


- 8 -

fact argument that the appeal waiver should not be enforced – simply because it is not receiving

an amount of money it believes it should – rings particularly hollow.

In its aggregate Common Benefit Award entered January 30, 2019 in each MDL, this Court

reiterated that “[t]he Management Order explicitly stated that counsel seeking consideration for

common benefit compensation must acknowledge this court’s ‘final, non-appealable authority

regarding the award of fees’ and that the parties ‘agreed to and therefore will be bound by the

court’s determination . . . [and] knowingly and expressly waive any right to appeal those decisions

or the ability to assert the lack of enforceability of this Management Order or to otherwise

challenge its adequacy.’” Common Benefit Award at 7. The Court further recognized that “the

Agreed Order provides that the decision by this court would be final and non-reviewable.” Id. at

22.

In granting the FCC’s Motion to Dismiss an appeal filed by fellow objector Kline & Specter

to the Court’s Common Benefit Award, the Fourth Circuit held as follows:

We have reviewed the parties’ submissions and agree that K&S knowingly and voluntarily agreed to be bound by the district court’s attorneys’ fees and expenses determinations and, thus, it has waived its right to appeal its attorneys’ fees and expenses award. Accordingly, we grant the FCC’s motions to dismiss these appeals.

With respect to the waiver of appeal by “Participating Counsel,” Anderson’s situation is

indistinguishable from that of Kline & Specter. Like Kline & Specter, Anderson knowingly and

voluntarily waived its right to appeal and thus the likelihood of success on appeal is non-existent.

See, Rose v. Logan, 2014 WL 3616380, *3 (D.Md.2014) (“this Court found that Appellant did not

have standing to bring an appeal, and thus, Appellant will likely not succeed on the merits of an

appeal in the Fourth Circuit based on this threshold question…. As such, the Appellant has

proffered no argument that shows his likelihood of success on the merits of his appeal so as to

justify this Court granting his Motion to Stay.”).


- 9 -

Anderson’s argument that even if it were found to have waived its right to appeal the

amount of its allocation, it should not be deemed to have waived its ability to appeal the fairness

of the allocation procedure, is semantic and meaningless. Very simply, the subject of Anderson’s

planned appeal is this Court’s Allocation Order, which allocates common benefit attorneys’ fees

and expenses. As this Court has recognized and as the Fourth Circuit has already held in this

litigation, “Participating Counsel” such as Anderson agreed to be bound by this Court’s

determination on fee awards, fee allocations and expense awards, and knowingly and expressly

waived any right to appeal those decisions. Anderson effectively concedes in its Motion that its

anticipated appeal has no chance of success by acknowledging that the Court will not find its

appeal likely to succeed and instead arguing for a standard that is controverted in the very legal

authority to which it cites. Accordingly, Anderson’s Motion for Stay should be denied.

3. Even assuming solely for argument purposes that Anderson had not knowingly and expressly waived its right to appeal, which it clearly did, Anderson still could not satisfy its burden of making a “strong showing that it will likely succeed on the merits” by raising the same arguments this Court has already considered and rejected as being “entirely without merit.”

As discussed above, Anderson waived its ability to appeal the Allocation Order. The Fourth

Circuit has already addressed this question in this MDL under circumstances that are not

distinguishable. However, even assuming arguendo that Anderson had not expressly waived its

right to appeal any allocation decision knowingly and voluntarily more than six years ago, its

anticipated appeal still has no likelihood of success on the merits.

According to its Motion for Stay, Anderson’s appeal intends to generally challenge the

fairness and sufficiency of the common benefit allocation process established by this Court, which

the Court-appointed FCC and External Review Specialist followed to the letter. Mot. for Stay at

12 (urging that appeal waiver should not be construed to preclude “proper challenges to the process


- 10 -

adopted and employed by the court.”). As the Court stated in its Allocation Order, the Court’s

common benefit orders establishing the allocation procedure were “designed for transparency and

equitable distribution of common benefit monies” and were intended to “assur[e] procedural

fairness,” and “[t]he procedural guidance to claimants assured fairness” by providing multiple

opportunities to object and to be heard. Allocation Order at 2-3. Moreover, each of Anderson’s

arguments regarding the Court-ordered allocation process were made to this Court in Anderson’s

Objection and several related filings (See Case 2:12-md-02327 (Ethicon MDL), Docs. 7717, 7766,

7829, 7844) and repeated in Anderson’s subsequent Motion for Hearing and related briefing. Id.,

Docs. 7896, 7959).6 See Ohio Valley Environmental Coalition, Inc. v. U.S. Army Corps of

Engineers, 890 F. Supp. 2d at 691 (noting that standard for granting stay pending appeal is

necessarily more demanding than that for granting a preliminary injunction because “at the stay-

pending-appeal stage, the merits of the underlying case have already been decided upon by a

court.”). Upon considering the very arguments that Anderson indicates that it intends to raise in

its planned appeal, the Court found that Anderson’s arguments are “entirely without merit.”

Allocation Order at 5. In denying the defendants’ motion to stay in Motorola Credit Corp. v.

Uzan, 275 F. Supp. 2d 519, 520 (S.D.N.Y. 2003), the court observed that

while recognizing this high standard [‘whether the stay applicant has made a strong showing that he is likely to succeed on the merits’], defendants, in their motion papers, do little more than recite in conclusory fashion numerous points on which the Court has ruled against them . . . . Mere conclusions, however, . . . do not constitute any kind of showing, let alone the requisite ‘strong showing.’ Accordingly, defendants have not even met the first requirement of a stay pending appeal.

6 These same arguments were also asserted by Anderson in its prior motion to compel discovery from the FCC (Case 2:12-md-02327, Doc. 7174 and 7198), as well as in its Objections to the FCC’s preliminary and final recommendations, both of which were provided to the Court in response to the Court’s Order Scheduling Objections Pursuant to Fee and Cost Protocol.


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Here, Anderson has not even attempted to make any showing that it will prevail on appeal,

but instead merely states without elaboration that it intends to raise the same groundless issues this

Court has already considered and rejected. Indeed, Anderson has implicitly acknowledged the

futility of this motion by admitting that it “does not expect this Court to agree that an appeal will

likely succeed.” Mot. for Stay at 4. That candid concession is undeniably true with respect to the

very arguments that this Court has already rejected as “entirely without merit.” It precludes the

grant of a stay here.

Moreover, Anderson’s fellow objector Kline & Specter made similar arguments that were

rejected by the Fourth Circuit. Similar to Anderson’s argument here about the FCC’s alleged

deviation from common benefit orders that it says gave rise to an expectation that allocation would

be made based on the “lodestar,” Mot. for Stay at 10, Kline & Specter argued in the Fourth Circuit

that this same appellate waiver should not be upheld because the FCC disregarded the common

benefit orders that it argued gave rise to an expectation that all state court time would be

compensable. App’x to Mot. for Stay (Kline & Specter 4th Cir. Response to Mot. to Dismiss

Appeal), pp. 20-21. Kline & Specter also argued that enforcement of the waiver would violate due

process, and that “the ‘waiver’ language relied upon by Appellee represents an unconscionable

and unprecedented effort to abrogate the authority and jurisdiction of this Court and the Supreme

Court” and that “[i]t is especially wrong to abrogate the right of appeal in the mass tort context,

which is an area of litigation fraught with conflict among many parties and their counsel and with

the potential for abuse.” Id. at 16-20. Each of these arguments asserted regarding the process and

fairness of the waiver were rejected, the appeal was dismissed and the subsequent petition for

reconsideration or rehearing en banc was denied. Anderson’s arguments are no different and will


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most assuredly suffer a similar fate (a fact acknowledged by Anderson’s filing of an invalid

“Motion to Amend” seeking to avoid the waiver it agreed to years ago).

a. Lack of discovery of other firms’ submissions

Just as it urged repeatedly – and unsuccessfully – in its Motion to Compel Discovery from

the FCC, its Objection to the External Review Specialist’s recommendation, its later Motion for

Hearing, as well in as other submissions that this Court has been provided for review, Anderson

indicates that it plans to complain on appeal about its inability to review the time and expense

submissions of other applicant firms, citing to In re High Sulfur Content Gasoline Prod. Liab.

Litig., 517 F.3d 220 (5th Cir. 2008). Mot. for Stay at 6, 10-11. However, as the FCC has already

shown in response to the same argument, neither High Sulfur – nor any other case – holds or even

suggests that a firm objecting to a common benefit attorney’s fee allocation in an MDL or class

action context should have access to every other applicant firm’s billing or expense records.7 The

Court consistently denied requests for discovery of this sort of information throughout the common

benefit review process. (Case 2:12-md-02327, Doc. 5343; Doc. 6189; Doc. 7225; Doc. 7625).

High Sulfur, which involved a completely closed process where no one outside of the fee

committee and the judge had any information about the allocation beyond the amount they were

suggested to receive, stands for the proposition that a fee applicant should have sufficient

information to be able to compare their award to that proposed for all other applicants. Here, unlike

in High Sulfur where the non-committee member applicants had no information about what any

7 To the contrary, courts have denied requests by fee applicant firms for other firms’ billing records specifically because an attorney’s fee allocation should not devolve into a separate litigation. In affirming the MDL court’s denial of discovery of other firms’ billing records, for example, the Eighth Circuit stated in In re Genetically Modified Rice Litig., 764 F.3d 864, 872 (8th Cir.2014), that “[a]lthough the court did not appoint an external auditor or permit discovery, cf. In re Diet Drugs, 582 F.3d at 533–34, discovery in connection with fee motions is rarely permitted, In re Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283, 338 (3d Cir. 1998), and a ‘request for attorney’s fees should not result in a second major litigation.’ Hensley v. Eckerhart, 461 U.S. 424 . . . (1983).”


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other applicant submitted or what they were recommended to receive, every one of the 94 applicant

firms was provided abundant information about every other applicant’s submission and their

recommended allocation. Every applicant – including Anderson – was provided the total number

of hours and amount of expenses submitted overall and by each applicant firm, an explanation of

the laborious process undertaken by the FCC for reviewing every firm’s submission, and the results

of this months-long process, including the total number of hours and expenses recognized by the

FCC as for the common benefit by firm and each firm’s recommended allocation. Every applicant

firm was provided information about their own time and why their submitted time or expense was

questioned or was not considered for the common benefit. Every applicant has also had multiple

opportunities to object and to be heard and to provide feedback and to receive feedback from the

FCC – both in-person and in writing. Anderson appeared before the FCC and had the opportunity

to address any issue it deemed appropriate. Anderson received the transcript of its appearance

before the FCC. Anderson also met with the External Review Specialist after its objections to the

FCC’s Final Written Recommendation were served. The FCC’s Final Written Recommendation,

the Declaration of the FCC’s Chairman, and the External Review Specialist’s Recommendation

are all filed of record. Importantly, the same process and criteria were applied to every firm that

applied for common benefit consideration. This Court reiterated that the Court-ordered common

benefit allocation protocol was intended to provide transparency and procedural fairness, and that

the FCC and External Review Specialist followed the Court’s protocol. Allocation Order at 2-5.

Anderson exercised its right to object to the Court. The Court issued its Allocation Order and found

each of Anderson’s arguments, including this argument about discovery of other firms’

submissions, to be “entirely without merit.” Anderson has no right to appeal, but even if it did, this

argument also has no likelihood of success on the merits. This Motion to Stay cannot be granted.


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b. Lodestar vs. percentage method

Anderson’s Motion to Stay also briefly states that it anticipates that its appeal “will be

focused precisely upon” the question of whether the FCC and External Review Specialist violated

the Court’s common benefit orders by utilizing the percentage-of-fund allocation method rather

than the lodestar method. Mot. for Stay at 10.8 The External Review Specialist and the FCC have

both addressed this same groundless argument at length in prior pleadings filed with the Court,

including the External Review Specialist’s Recommendation and the FCC’s Final Written

Recommendation and its Omnibus Response to the Objections to the Recommendations of the

External Review Specialist. See FCC Final Written Recommendation at 36-40; see also March 12,

2019 External Review Specialist’s Recommended Allocation at 18-19, 22-23; April 8, 2019

Omnibus Response to Objections to External Review Specialist’s Recommendation, Section IV,

at 17-20. The Court’s Allocation Order also recounts the Court-directed methodology for the

allocation that required an individualized analysis guided by subjective factors focused principally

on the extent to which the work contributed to the overall resolution of the litigation with great

weight to the quality and impact of the applicant’s efforts. Allocation Order at 3. The Allocation

Order further describes the role of the time and expense review, which the Court accurately

describes as “exhaustive.” Id. at 3-4. The Court stated in its Allocation Order that the allocation

process employed by the FCC and the Court-appointed External Review Specialist followed the

Court’s procedural orders and, again, found each of Anderson’s objections – which included this

argument regarding the lodestar method that have been thoroughly addressed by both the External

Review Specialist and the FCC – to be completely meritless. Even if Anderson’s ability to appeal

8 This same unfounded argument serves as the proffered basis for Anderson’s recently filed “Motion to Partially Alter, Amend or Reconsider Judgment” attempting to avoid the appellate waiver that undeniably dooms Anderson’s anticipated appeal.


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had not been expressly waived years ago, this entirely meritless argument would have no chance

of success on appeal.

B. Anderson has not demonstrated irreparable injury from denial of its Motion for Stay.

Anderson’s inability to meet its burden of making a strong showing of the likelihood of

success on the merits on appeal dooms its motion to stay irrespective of any of the other factors.

While that factor alone is dispositive of the motion, upon analysis none of the other factors warrant

a stay here either.

As an initial matter, Anderson misrepresents the nature of the stay contemplated in Rule

62(a), referencing it as an “initial 30-day period imposed by Fed.R.Civ.P. 62(a).” Mot. for Stay at

12. The obvious inference is that the stay is automatic and applies to this case. However, Anderson

omits from its recitation a critical part of the rule:

(a) Automatic Stay. Except as provided in Rule 62(c) and (d), execution on a judgment and proceedings to enforce it are stayed for 30 days after its entry, unless the court orders otherwise.

FED. R. CIV. P. 62(a) (emphasis added). In its Allocation Order, the Court expressly ordered that

“all expenses and MDL assessments . . . be dispersed to each firm” and that, similarly, “all of the

common benefit money on hand as of July 25, 2019, after subtracting the expenses and assessments

mentioned above, be dispersed . . . .” Allocation Order at 5-6. In other words, the Allocation Order

is not subject to an automatic stay of 30 days under Rule 62(a) because the “court order[ed]

otherwise.” That Anderson cannot demonstrate it will suffer irreparable injury from denial of its

Motion to Stay further frustrates its purposes here.

Similar to the requisite showing for likelihood of success on appeal, the standard for

demonstrating irreparable injury likewise requires more than “simply showing some ‘possibility’

of irreparable injury” because “the ‘possibility’ standard is too lenient.” Kay Co., LLC v. EQT


- 16 -

Production Co., 2017 WL 6403009, *1 (N.D.W.Va. 2017). Anderson’s only claimed potential for

harm is financial, but Anderson acknowledges in its Motion that “financial loss is not typically

considered to qualify” as irreparable harm. Mot. for Stay at 12-13. See also Joe v. Ozmint, 2008

WL 5076858, at *9 (D.S.C. 2008) (finding that “[f]inancial loss is very rarely viewed by courts as

irreparable harm”). Indeed, “[a]n injury is irreparable if it cannot be undone through monetary

remedies.” Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir.

1995) (citing Interox Am. v. PPG, Indus., Inc., 736 F.2d 194, 202 (5th Cir. 1984)). “As a general

rule, a movant has not established irreparable harm where damages would adequately compensate

the movant for the asserted harm.” Id. (citation omitted). District courts in the Fourth Circuit have

similarly held. In First Hand Commc’ns, L.L.C. v. Schwalbach, the court held that:

It is well-settled that financial injuries do not adequately qualify as irreparable harm: Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Al-Abood v. El-Shamari, 71 F.Supp.2d 511, 514 (E.D. Va. 1999) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)).

2006 WL 1875578, at *4 (E.D. Va. June 30, 2006).

In In re Rose’s Stores, Inc., 223 B.R. 487, 488 (E.D.N.C. 1998), the court denied a motion

to stay pending appeal to a debtor tenant from the court’s order reversing a bankruptcy court’s

judgment regarding the debtor’s obligations under leases with its landlords, even though the

debtor’s landlords would be able to recover funds that had deposited in interest-bearing accounts,

and despite the fact that other courts had issued opinions favorable to the debtor’s position on

appeal. The court held that the mere fact that there was non-binding authority in support of the

debtor’s appeal position was not enough to establish a likelihood of success on appeal, and the

debtor presented no evidence that if it were successful, the landlords would not be able to satisfy


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any judgment liens imposed against them to refund the money recovered from the interest-bearing

accounts. Id. The court in In re Rose’s Stores further stated that it was clear that issuing a stay

would substantially injure the debtor’s landlords because it would deprive them of the use of their

own money during the pendency of the debtor’s appeal. Id. This holding is particularly instructive

here in light of the fact that there is no chance for success on appeal and the only outcome of a stay

would be to deprive the interested firms the use of the money that they earned for their work

performed years ago, and in many cases, the money that they put up to fund this litigation long

ago when the likelihood of any recovery was in question.

In In re Deepwater Horizon, the Fifth Circuit distinguished the Scott opinion relied upon

by Anderson (see Mot. for Stay at 13), holding that “there has been no showing, unlike in Phillip

Morris USA Inc. v. Scott, ---- U.S. ----, 131 S. Ct. 1, 4, 177 L.Ed.2d 1040 (2010) (Scalia, J., in

chambers), upon which BP relies, that a ‘substantial portion’ of the fraudulent awards ‘will be

irrevocably expended.’” 793 F.3d 479, 492 (5th Cir. 2015). The same is true here. Anderson asserts

that “future sums paid into the fund” will not be “large enough to reconfigure disbursements to

account for any changes that may be ordered by the Fourth Circuit.” Mot. for Stay at 14.

Anderson’s concession that it cannot appeal the amount of its award because it waived such right

is undermined by its professed concern that funds may not be available to pay the additional

amount it apparently believes it deserves. Given that the availability of money to pay Anderson is

its primary concern, Anderson’s appeal is necessarily aimed at the amount of its allocation, which

only underscores the futility of its potential appeal. Moreover, Anderson completely disregards the

fact that additional funds will continue to flow into the Common Benefit fund from the 5%

assessments of gross settlements from July 25, 2019 going forward.


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The primary legal authority asserted by Anderson that funds may be unavailable is its

citation to the Third Circuit’s opinion in In re Diet Drugs. Mot. for Stay at 13-14. Anderson relies

heavily on the dicta of this case, which merely notes the hypothetical possibility that the district

court “would have waived the bond or required a substantially reduced bond . . .” had any Motion

to Stay been filed there (no such motion was filed there). Mot. for Stay at 14. First, this language

emphasizes the fact that it is within the Court’s discretion to require a supersedeas bond or other

security for the full amount of the judgment in addition to post-judgment interest and costs even

where the Court finds that a stay would be legally warranted, which is not the case here. Second,

Anderson overlooks the fact that the Third Circuit did not make any ruling on the issue of a bond

or amount of the potential bond, holding that “we need not decide whether practical difficulties in

administering a reallocation . . . foreclose us from remanding the matter. As noted above, we do

not believe that the District Court’s allocation, viewed in context, constitutes an abuse of

discretion.” In re Diet Drugs, 582 F.3d 524, 552 (3d Cir. 2009). This holding is particularly

appropriate here where, as discussed at length above, Anderson seeks a stay pending appeal

without posting any bond or security and it has expressly, knowingly, and voluntarily waived its

right to challenge the Court’s Allocation Order on appeal, with the Fourth Circuit previously

dismissing an appeal by one of Anderson’s fellow objectors based on the same waiver. Moreover,

this Court has already found that each of Anderson’s arguments that it intends to pursue on appeal

to be “entirely without merit.” The fact that there is no likelihood of success on appeal obviates

any need to dwell on Anderson’s theoretical argument about not receiving as much money as it

believes it should. In summary, Anderson cannot demonstrate an irreparable injury for the very

same reasons it cannot demonstrate a likelihood of success on the merits. Anderson has no right to


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appeal, and in any event, its anticipated grounds for appeal are meritless. Accordingly, Anderson

has failed to establish an irrevocable harm and is not entitled to a stay without a bond.

C. Other parties will be substantially harmed by the stay.

As discussed at length in the FCC’s Omnibus Response to Objections to the

Recommendation of the External Review Specialist, only four of the 94 law firms recommended

to receive allocations have asserted any objection to the allocation. Anderson argues that stopping

payment to more than ninety other Participating Counsel will not result in those firms “risk[ing]

any loss of time-value” of their awards. This must be true, Anderson argues, because “it is

inconceivable that a fund worth hundreds of millions of dollars currently sits in zero-interest

deposit accounts.” Mot. for Stay at 16. This argument presupposes that the proper measure of the

time value of money—the anticipated damages for the delay in distributing to Participating

Counsel their allocations from the common benefit fund—is an account bearing nominal interest.

Anderson is not merely asking attorneys to forego receipt of attorneys’ fees they have earned for

their work benefitting all claimants. Anderson goes further, arguing that the attorneys that funded

this sprawling litigation from its inception almost a decade ago, and that have incurred held costs

and paid assessments in the amount of over $47 million, should continue to wait for recoupment

of those tens of millions of dollars in out-of-pocket expenses until Anderson is able to argue on

appeal over the course of the next several months that it singularly deserves more money – even

though it expressly and knowingly waived its right to appeal this very issue. Ninety out of ninety-

four firms have indicated their agreement with the allocation as ordered by the Court. Anderson

seeks to deprive each of them their rights while pursuing a patently frivolous appeal which has no

possibility of success. These expenses and assessments were incurred over the course of the last

nine years, funding the litigation of the seven pelvic mesh MDLs. The Court has already held that


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“[l]eadership was required to spend tens of millions of dollars without any guarantee of success.”9

The commitment of capital to the extent required in these cases required Participating Counsel to

forego other work, and in some instances required Participating Counsel to borrow funds at an

interest rate that exceeds the nominal interest accruing in the fund currently. Now that recovery of

significant out-of-pocket expense has been ordered to the common benefit Participating Counsel,

Anderson argues that their recovery should be delayed solely to vindicate its own personal

grievances with the amount of its allocation.

Further, Anderson’s reliance on U.S. v. O’Shea is misplaced. Mot. for Stay at 15-16. In that

case, the court held that a waiver of the supersedeas bond was within the court’s discretion where

the sale of “the Defendants’ home and business” was at stake, and which sale “could not be readily

reversed should the appellate court find in the Defendant’s favor.” Id. at 15. Anderson’s citation

to O’Shea is misplaced because, in this case, the only issue is the potential for financial loss (albeit

a non-existent potential) and not the disposition of real property, such as the forced sale of the

home and business of a party. Anderson’s home and business are not at issue in the Court’s

Allocation Order. To the contrary, Anderson has been ordered to receive significant money for its

common benefit efforts under the Court’s Allocation Order. The only “conflict” is that Anderson

believes it should be entitled to more money and thus it seeks to delay the distribution of funds to

the ninety out of ninety-four Participating Counsel while the Fourth Circuit considers its baseless

appeal that it knowingly and voluntarily waived its right to pursue years ago.

D. The public has no interest in Anderson’s self-serving ploy to delay disbursement of the allocation to pursue an appeal that it has waived its right to pursue.

9 Mem. Op. and Order Re: Pet. For an Award of Common Benefit Attorneys’ Fees and Expenses, (emphasis added) Ethicon MDL 2327 PTO 327.


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The only “public interest” which Anderson cites as allegedly supporting a grant of its

Motion to Stay is the general interest in the opportunity to exhaust appellate rights. Anderson

conspicuously disregards that it knowingly and voluntarily waived its right to pursue any appellate

rights. The public not only has an interest in the timely execution of judgments, but appeal waivers

such as that agreed upon by Anderson and memorialized by the District Court are not only a

“common practice” enforced by “the great weight of authority,” they are encouraged by courts in

furtherance of the public policy of resolving disputes through negotiation and avoidance of

protracted litigation – exactly the sort of protracted litigation that Anderson seeks to pursue.

Goodsell v. Shea, 651 F.2d 765, 767 (C.C.P.A.1981). See also MACTEC, Inc. v. Gorelick, 427

F.3d 821, 830 (10th Cir. 2005) (“courts routinely enforce agreements that waive the right to

appellate review over district court decisions.”). As noted in Ziyad Mini Market v. U.S., 302 F.

Supp. 2d 124, 126 (W.D.N.Y. 2003), “even in criminal cases, in which courts are particularly

careful to safeguard defendants’ rights, knowing and voluntary waivers of the right to appeal as

part of a plea agreement are ‘regularly enforced.’” Any purported “public interest” in appellate

rights would not be vindicated by allowing a party to sidestep the supersedeas bond or other

security requirement to appeal without impunity, and certainly not where the party seeking to

appeal gave up the right to appeal expressly and voluntarily years earlier and where the grounds

for appeal have already been considered and determined to be “entirely without merit.”

CONCLUSION

Based on the foregoing argument and citation of authority, Anderson cannot possibly

satisfy its burden of demonstrating that a stay in lieu of a supersedeas bond or other security could

be granted under the applicable legal test. This Motion for Stay should therefore be denied.

Dated: July 31, 2019


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THE COMMON BENEFIT FEE AND COST COMMITTEE

/s/ Henry Garrard Henry G. Garrard, III Blasingame, Burch, Garrard & Ashley, PC 440 College Ave., Ste. 320 Athens, GA 30601 706-354-4000 706-549-3545 (fax) [email protected] /s/ Renee Baggett Renee Baggett Aylstock Witkin Kreis & Overholtz Suite 200 17 East Main Street Pensacola, FL 32502 850-202-1010 805-916-7449 (fax) [email protected] /s/ Riley L. Burnett, Jr. Riley L. Burnett, Jr. Burnett Law Firm 3737 Buffalo Speedway, Suite 1850 Houston, TX 77098 832-413-4410 832-900-2120 (fax) [email protected] /s/ Thomas P. Cartmell Thomas P. Cartmell Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 816-701-1100 816-531-2372 (fax) [email protected] /s/ Clayton A. Clark Clayton A. Clark Clark, Love & Hutson, GP 440 Louisiana St., Ste. 1600 Houston, TX 77002


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713-757-1400 713-759-1217 (fax) [email protected] /s/ Yvonne Flaherty Yvonne Flaherty Lockridge Grindal Nauen Suite 2200 100 Washington Avenue South Minneapolis, MN 55401 612-339-6900 612-339-0981 (fax) [email protected] /s/ Carl N. Frankovitch Carl N. Frankovitch Frankovitch, Anetakis, Colantonio & Simon 337 Penco Road Weirton, WV 26062 304-723-4400 304-723-5892 (fax) [email protected] /s/ Joseph F. Rice Motley Rice, LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 843-216-9000 843-216-9450 (fax) [email protected] /s/ William H. McKee, Jr. William H. McKee, Jr. 3041 Knotty Pine Drive Pensacola, FL 32505 304-546-2347 [email protected]


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I hereby certify that on July 31, 2019, a true and correct copy of the foregoing Common

Benefit Fee and Cost Committee’s Response in Opposition to Anderson Law Offices’ Motion for

Stay of Execution of Judgment was served via electronic mail with the Clerk of the Court using

the CM/ECF system, which will send notification of such filing to the CM/ECF counsel of record.

/s/ Henry G. Garrard, III Henry G. Garrard, III Chairman The Common Benefit Fee and Cost Committee



IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION IN RE: C.R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION ________________________________

IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: BOSTON SCIENTIFIC, PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: COLOPLAST PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: COOK MEDICAL, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________ IN RE: NEOMEDIC PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION _________________________________


MDL NO. 2187 MDL NO. 2325 MDL NO. 2326 MDL NO. 2327 MDL NO. 2387 MDL NO. 2440 MDL NO. 2511


2


ANDERSON LAW OFFICES’ REPLY IN SUPPORT OF STAY OF EXECUTION OF JUDGMENT

Anderson Law Offices (“ALO”) submits this Reply in further support of the Motion

for Stay of Execution of Judgment dated July 26, 2019 (“ALO’s” Motion). Most of the

positions that have been asserted in the Common Benefit Fee and Cost Committee’s

Response in Opposition dated July 31, 2019 (“FCC’s Response”) were anticipated and

addressed in the Motion. A few final points must be made, however, in closing.

I. THE PROBABILITY OF SUCCESS FACTOR

ALO is requesting nothing more than a maintenance of the status quo to afford the

Fourth Circuit an opportunity to review the recent fee allocation decision of July 25, 2019.

The common benefit funds that have been collected will continue to remain safely secured

in an interest bearing account. The Seventh Circuit has wisely observed that:

Stays, like preliminary injunctions, are necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error.

In re A & F Enterprises, Inc. II, 742 F.3d 763, 766, (7th Cir. 2014) (Citations omitted). If

the Fee and Cost Committee (FCC) is correct that Benjamin H. Anderson, Esq. (“Attorney

Anderson”) expressly waived all his appeal rights, then no one will have to wait long for

the appellate proceedings to conclude.

Proceeding with an immediate disbursement, on the other hand, does indeed

threaten to seriously complicate and prolong the common benefit fee allocation process.

A majority of the appellate court may well refuse to be the first to allow a non-signatory

to be bound by a mandatory forfeiture of appeal rights, or may find that the terms of any

enforceable waiver are not as broad and uncompromising as the FCC maintains. And if

that same panel further determines that the in camera review that was conducted of the

FCC members’ time and expense submissions failed to satisfy the minimal due process

standards outlined in authorities such as In re High Sulfur Content Gasoline Prod. Liab.

Litig., 517 F.3d 220, 232 (5th Cir. 2008), a monumental effort will be required upon


3


remand to claw-back the payments that have been made to 89 separate law firms

scattered across the country.

The FCC has argued at great length that a “strong showing” of a likelihood of

success is indispensable before any stay can be ordered. FCC’s Response, pp. 3-5. But

while such a high-bar has been noted in the abstract in some contexts, the reality is that

Fed.R.Civ.P. 62(b) would serve no purpose if district courts were first required to find that

they had probably blundered as a condition for postponing enforcement. One federal

court has cogently explained that:

To begin with, it is important to note that courts have sensibly concluded that the first factor “does not require the trial court to change its mind or conclude that its determination on the merits was erroneous.” United States v. Fourteen Various Firearms, 897 F.Supp. 271, 273 (E.D. Va. 1995). This is so because it would be the relatively rare case in which a court would conclude that a judgment that it had reached carefully after thorough consideration would likely be erroneous. Thus, the question with respect to the first factor is whether “the issues presented on appeal could be rationally resolved in favor of the party seeking the stay.” Id.

Realvirt, LLC v. Lee, 220 F.Supp.3d 704, 705-706 (E.D. Va. 2016) (Emphasis added); see

also, Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011) (“Regardless of how one

expresses the requirement, the idea is that in order to justify a stay, a petitioner must

show, at a minimum, that she has a substantial case for relief on the merits.”); Nation v.

Tanner, 108 F.Supp.3d 29, 34 (N.D. N.Y. 2015) (requiring that “the movant has

demonstrated a substantial possibility, although less than a likelihood, of success on

appeal[.]”) While the FCC has fixated upon the immigration law opinion that was

rendered in Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), the

Supreme Court more recently recognized “a reasonable probability” test for issuing a stay

after certiorari has been sought. Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705,

709-710, 175 L.Ed.2d 657 (2010). As ALO had accurately represented in the original

Motion, this Court (as well as others) has acknowledged that:

It may be possible that showing somewhat less than a “strong


4


showing” or “likelihood” of success on the merits can suffice if the harm to the moving party without a stay is great enough; however, that showing must be more than merely pointing to “serious questions.”

Ohio Valley Environmental Coalition Inc. v. U.S. Army Corps. of Engineers, 890

F.Supp.2d 688, 692 (S.D. W.V. 2012).

II. THE PRAGMATIC SLIDING SCALE

The FCC’s unrealistic position further fails to acknowledge that the standards

governing stays on appeal are flexible, and permit a sliding scale approach where strength

on one factor will override a weakness on another. Grote v. Sebelius, 708 F.3d 850, 853

fn. 2 (7th Cir. 2013); Humane Society of U.S. v. Gutierrez, 523 F.3d 990, 991 (9th Cir.

2008); Washington Metropolitan Area Transit Commn. v. Holiday Tours, Inc., 559 F.2d

841, 844 (D.C. Cir. 1977); City of Chicago v. Sessions, 321 F.Supp.3d 855, 881 (N.D. Ill.

2018). Here, the only “harm” that has been suggested in maintaining the status quo is

that the attorneys who have been approved for common benefit awards will not be paid

as fast as they would like. FCC’s Response, pp. 19-20. That’s it. Conversely, the only

legitimate public interest at stake that anyone has identified is ensuring that fair and just

judicial decisions are rendered, which is possible only when the appellate process is

allowed to run its course. If a number of firms are permitted to dissipate and waste

common benefit funds that are later determined by the Fourth Circuit to have been

inequitably apportioned, the loss to the prevailing parties will be irreparable in every

sense of the term. Because these factors strongly support the issuance of a temporary stay

pending appeal, the importance of establishing a high probability of success on the merits

should be diminished.

III. THE PROSPECTS FOR SUCCESS ON THE MERITS

In Realvirt, LLC, 220 F.Supp.3d at 705-706, the District Court found that a strong

showing of a likelihood of success on the merits had been furnished because one of the

significant issues in play was a matter of first impression. That is also the situation in the


5


case sub judice, as the FCC has yet to cite a single decision from anywhere actually holding

that attorneys who have provided valuable common benefit work and advanced expenses

can be required to waive their rights to appeal as a condition for being compensated for

their efforts. And a second issue of first impression will be whether basic principles of

due process and fair play are satisfied when a committee of attorneys is allowed to

recommend awards for themselves and others without ever having to disclose their own

time and expense entries to all. Because there are no on-point Fourth Circuit decisions

resolving the pivotal issues in this case, prudence dictates that no distribution should be

permitted until the appellate court is afforded an opportunity to weigh-in.

Buried in one of the FCC’s footnotes is an accusation against ALO for a

“misrepresentation” of the firm’s purported consent to the waiver of appeal rights. FCC’s

Response, p. 7, fn. 4. But the FCC is pointing to the fact that Attorney Anderson “signed

and submitted” an entirely different agreed Management Order (i.e., PTO #11). Id. The

waiver of appeal rights that the FCC is attempting to enforce appears in PTO#:18, which

Attorney Anderson indisputably was never asked to sign, and never did sign. Doc#:282;

PageID#:3882-99.

In another footnote, the FCC has identified the sole consideration that was received

in exchange for a waiver of appeal rights as “the ability to have his time and expenses

considered for potential common benefit compensation that could be distributed without

the unnecessary delay from an invalid appeal by a disgruntled fellow applicant.” FCC’s

Response, p. 6, fn. 3. But that is exactly the point. The FCC has already approved ALO

for at least a portion of the common benefit time expended and expenses incurred in the

New Jersey Multi-District Litigation before PTO#:18 was issued, and cannot dispute their

validity. Under longstanding principles of equity, ALO was already lawfully entitled to be

compensated for this time and reimbursed for these expenses at that early point in the

proceedings. See generally, In re Aircrash Disaster at Florida Everglades, 549 F.2d

1006, 1012-1021 (5th Cir. 1977); Fallon, Common Benefit Fees and Multidistrict


6


Litigation, 74 LOUISIANA LAW REVIEW (Winter 2014) 375-376. Another option was never

afforded that would allow recovery of the payments due while preserving a right to

appellate review. An issue of first impression for the Fourth Circuit to resolve will thus

be whether such a vested interest can be conditioned upon a forfeiture of the opportunity

to seek redress in a higher court.

It would not be until years following the issuance of PTO#:18 that FCC members

began openly insisting that non-signatories remained bound by the appeal waiver set

forth therein. No controlling authorities have been cited, moreover, supporting the theory

that such consent can be implied through mere silence or acquiesce. That cannot be the

law in a case such as this, where there was no realistic freedom of choice between viable

options. According to the FCC, it was “either forfeit your right to appeal or don’t get paid.”

As ALO had detailed earlier, the decisions that have been cited by the FCC

enforcing such waivers involved litigants who had openly and specifically acknowledged

their assent through arms-length settlement or arbitration agreements, if not in open

court. ALO’s Motion, pp. 11-12. Each of these cases is thus distinguishable on this basis

alone. Given that ALO’s appeal will be wading into unsettled areas of law, maintaining

the status quo in the interim is entirely warranted.


7


CONCLUSION


the order dated July 25, 2019, MDL No. 2187, PTO#:308, Doc#:7367; MDL No. 2325,



Doc#:737; MDL No. 2511, PTO#:42, Doc#:244, until all avenues of appeal have been

exhausted. Fed.R.Civ.P. 62.


s/Richard L. Gottlieb Richard L. Gottlieb, Esq. (WV# 1447) Webster J. Arceneaux, III, Esq. (WV# 155) LEWIS GLASSER PLLC 300 Summers Street, Suite 700 Charleston, West Virginia 25301 (304) 345-2000 [email protected] [email protected]

s/Paul W. Flowers Paul W. Flowers, Esq. (Ohio #0046625) Louis E. Grube, Esq. (Ohio #0091337) PAUL W. FLOWERS CO., L.P.A. 50 Public Square, Suite 1910 Cleveland, Ohio 44113 (216) 344-9393 [email protected] [email protected] Attorneys for Anderson Law Offices


I hereby certify that on the 1st of August, 2019, the foregoing Reply was filed

electronically. Notice of this filing will be sent to all parties by operation of the court’s

electronic filing system. Parties may access this filing through the court’s system.

s/Paul W. Flowers Paul W. Flowers, Esq. (#0046625) PAUL W. FLOWERS, CO., L.P.A. Attorney for Anderson Law Offices



See, e.g. Nken v. Holder

In re Ethicon, Inc.




No. 19-1224L


KLINE & SPECTER, P.C. Appellant

v.

COMMON BENEFIT FEE AND COST COMMITTEE,

Appellee.

APPELLANT’S RESPONSE TO THE MOTION TO DISMISS

On appeal from an Order of the United States District Court for the Southern District of West Virginia, entered January 30, 2019, in Docket No. 2:12-md-02327

Shanin Specter, Esquire Lee B. Balefsky, Esquire Charles L. Becker, Esquire KLINE & SPECTER, P.C. 1525 Locust Street Philadelphia, PA 19102 (215) 772-1000

Charles M. Love, III, Esquire Floyd E. Boone, Esquire BOWLES RICE, LLP 600 Quarrier Street Charleston, WV 25301 (304) 347-1100 Counsel for Appellant Kline & Specter, P.C.

USCA4 Appeal: 19-1224 Doc: 18 Filed: 04/12/2019 Pg: 1 of 238USCA4 Appeal: 19-1853 Doc: 8-6 Filed: 08/09/2019 Pg: 1 of 238 Total Pages:(94 of 331)

1

I. STATEMENT OF THE CASE

A. Over 100,000 women have filed lawsuits alleging injury caused by pelvic mesh devices. Most of these cases have been managed by Judge Goodwin through a series of multidistrict litigation programs.

Pelvic organ prolapse and stress urinary incontinence are common conditions

associated with aging and childbirth. Beginning in the mid-1990s, seven medical device

manufacturers sold plastic mesh medical devices marketed for these conditions. While

the devices vary in some respects, they consistently involve plastic mesh that is

permanently implanted into a woman’s pelvis by way of insertion through the vagina

and then through incisions in the vaginal wall.

Unfortunately, many of the women implanted with the plastic mesh devices

developed significant and permanent injuries. Their injuries include aggravated urinary

symptoms, such as frequency, urge incontinence, urinary retention, and nocturia; injury

to their pelvic organs from the adhesion and erosion of the mesh to the urethra,

bladder, and exterior vaginal wall; tissue degradation and scarring on pelvic organs;

deformation of the vagina; acute and chronic pelvic and leg pain; dyspareunia (chronic

pain with intercourse); and sexual disfunction. In most cases, the plastic mesh cannot

be completely removed. These conditions are usually irreversible. By 2019, more than

100,000 women had filed suit in federal and state courts claiming that they were injured

by the seven defendants’ plastic mesh products.

In 2010, the Judicial Panel on Multidistrict Litigation transferred a group of cases

filed by women concerning C.R. Bard’s Avaulta device (for prolapse repair) to the U.S.


2

District Court in the Southern District of West Virginia. In re Avaulta Pelvic Support Sys.

Prods. Liab., 746 F.Supp.2d 1362, MDL No. 2187 (J.P.M.L. 2010). Over the next four

years, the Judicial Panel on Multidistrict Litigation created six other multidistrict

litigation programs and transferred cases to the U.S. District Court for the Southern

District of West Virginia. The Panel appointed Judge Joseph Goodwin to oversee all

seven MDL programs. The programs are:

1. In re: C.R. Bard, Pelvic Repair System Products Liability Litigation, No. 19-1225 (2:10-md-02187);

2. In re: American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation, No. 19-1227 (2:12-md-02325);

3. In re: Boston Scientific Corp., Pelvic Repair System Products Liability Litigation, No.

19-1226 (2:12-md-02326); 4. In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation, No. 19-1224

(L) (2:12-md-02327); 5. In re: Coloplast Corp., Pelvic Support Systems Products Liability Litigation, No. 19-

1229 (2:12-md-02387) 6. In re: Cook Medical, Inc., Pelvic Repair System Products Liability Litigation, No. 19-

1230 (2:13-md-02440); 7. In re: Neomedic Pelvic Repair System Products Liability Litigation, No. 19-1228 (2:14-

md-02511) B. Judge Goodwin represented that work spent on state-court matters would

be eligible for common benefit fee compensation.

In April 2012, Judge Goodwin entered pre-trial Order No. 4 that created a

Plaintiffs’ Steering Committee intended to coordinate the litigation on the plaintiffs’

side of the case (the “Steering Committee”). See, e.g., In re Ethicon, Inc., Pelvic Repair Sys.


3

Prod. Liab. Litig., MDL No. 2327, 2:10-md-02327 (S. D. W. Va. April 17, 2012); ECF

No. 120 (attached as Exhibit “A”).1 Judge Goodwin appointed attorneys from 61 law

firms representing plaintiffs across the country, including Mr. Lee Balefsky of Appellant

Kline & Specter, P.C. The Steering Committee was charged with developing legal

strategies, complex discovery, and case development on the plaintiffs’ behalf.

Although pelvic mesh litigation was just getting started, the Steering Committee

created a framework for paying fees based on case resolutions to attorneys who

performed common-benefit work and for reimbursing expenses incurred for the

common benefit. In October 2012, Judge Goodwin entered PTO No. 18 to

memorialize the Steering Committee’s preliminary agreed-upon framework. See, e.g., In

re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-md-02327 (S. D.

W. Va. Oct. 4, 2012); ECF No. 282 (attached as Exhibit “B”). The Order provided

that any member of the Steering Committee was deemed to be a “Participating

Counsel.” In turn, the Order provided that any Participating Counsel who

subsequently sought to be considered for common-benefit compensation was deemed

to have agreed that the Court had “final, nonappealable authority” concerning the

award and allocation of common-benefit fees. The Order further provided that such

Participating Counsel waived their right to appeal any decision concerning common-

benefit fees. The Order stated in relevant part as follows:

1 The Court entered identical Orders in all seven multidistrict litigation programs.


4

For [Steering Committee] counsel appointed by the court or acting under the direction of the leadership of the [Steering Committee], the recovery of common benefit time and cost reimbursements will be allowed and is essential. This will be for “participating counsel” as defined herein. Furthermore, participating counsel shall only be eligible to receive common benefit attorneys’ fees and cost reimbursement if the time expended, costs incurred and activity in question were (a) for the common benefit, (b) appropriately authorized (as defined herein specifically in section 3), (c) timely submitted, and (d) approved by this court. This Order sets forth the guidelines regarding the submission and compensability of common benefit time and expenses.

* * * *

“Participating Counsel” are counsel who subsequently desire to be considered for common benefit compensation and as a condition thereof agree to the terms and conditions herein and acknowledge that the court will have final, non-appealable authority regarding the award of fees, the allocation of those fees and awards for cost reimbursements in this matter. Participating Counsel have (or will have) agreed to and therefore will be bound by the court’s determination on common benefit attorney fee awards, attorney fee allocations, and expense awards, and the Participating Counsel knowingly and expressly waive any right to appeal those decisions or the ability to assert the lack of enforceability of this Agreed Order or to otherwise challenge its adequacy. Nothing in this Agreed Order shall be construed to prohibit an agreement between the [Steering Committee] and state court litigants who may later seek a common benefit allocation.

Id.

Crucially, for Kline & Specter, this Order made clear that time spent on state-

court matters “will be compensable time” for common-benefit purposes. The Order

was explicit on this point:

D. Common Benefit Work: 1. Examples of authorized and unauthorized common benefit work include but are not limited to:

* * * *


5

k. Bellwether Trials. While the work-up of individual cases is not considered common benefit, in the event that a case is selected as part of an approved early preference or bellwether trial process in the MDL or participating state court proceedings, the time and expenses in trying the case (including work performed as part of the approved bellwether process) may be considered for common benefit to the extent it complies with other provisions of this Agreed Order or Participation Agreement. l. Pre-Litigation Hours Materially Advanced. The court will have the authority and discretion to permit the accounting of prelitigation hours materially advanced for common benefit. m. State Court and Bard MDL common benefit hours. The court contemplates that work done for the common benefit through the Bard MDL, in federal litigation prior to the formation of this MDL or through state court proceedings in New Jersey, Delaware, Massachusetts, Minnesota, West Virginia and elsewhere will be compensable time, and can be submitted so long as it has been approved and agreed to by the co-lead of the applicable MDL and/or the Coordinating Co-lead counsel.

Id.

In August 2013, Judge Goodwin entered PTO No. 62 that established a fund to

compensate and reimburse attorneys for services performed and expenses incurred for

common benefit. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327,

2:10-md-02327 (S.D. W. Va. Oct. 4, 2012), ECF No. 747 (attached as Exhibit “C”).

The Order provided that Participating Counsel were entitled to receive work-product

created by other Participating Counsel. In exchange, the Order imposed a 5%

assessment on any recovery realized by any plaintiff represented by a Participating

Counsel. This amount would be withheld from any individual plaintiff’s recovery and

directed into a fund for payment of attorneys’ fees and approved common-benefit and

MDL expenses. Id.


6

Significantly, the August 2013 Order made clear that the counsel eligible to make

application for reimbursement from the common-benefit fee fund included not only

members of the Steering Committee, but also attorneys performing common-benefit

work in connection with state-court actions. The Order specifically contemplated that

such time would be eligible for compensation based on the experience, talent and

contribution of the counsel, along with other such facts as the time and effort expended

and the value of the work performed.

a. From time to time the Executive Committee may make application for disbursements for the MDL 2327 Fund for common benefit work and expenses. Upon a proper showing and Order of the Court, payments may be made from the MDL 2327 Fund to attorneys who have provided services or incurred expenses for the joint and common benefit of plaintiffs and claimants whose claims have been treated by this Court as a part of these proceedings in addition to their own client or clients. Such “Eligible Counsel” include:



iii. Other attorneys performing similar responsibilities in state court actions, provided that all cases in which any putative common-benefit attorneys have a financial interest are subject to this Agreed Order.


consideration will be given to the experience, talent, and contribution made by Eligible Counsel, and to the time and effort expended by each as well as to the type, necessity, and value of the particular legal services rendered.

Id.


7

On January 15, 2016, Judge Goodwin entered PTO No. 211 an "Order

Establishing Criteria for Applications to MDL Fund to Compensate and Reimburse

Attorneys for Services Performed and Expenses Incurred for MDL Administration

and Common Benefit and Appointment of Common Benefit Fee and Cost

Committee." In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-

md-02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 1845 (attached as Exhibit “D”). This

Order established the process for reviewing and managing common benefit fees and

expenses. The Order appointed a Fee and Cost Committee, a nine-person

committee responsible for recommending Judge Goodwin the allocation of awards

of attorneys' fees and costs to be made from the common benefit fee fund. Id.

At no point to this date was there any suggestion that state-court work would

not be eligible for compensation from the common-benefit fee fund. The

leadership of the Steering Committee made clear that state-court time was eligible

for compensation. This is reflected in a February 11, 2016 email from Kline &

Specter attorney and Steering Committee member Lee Balefsky partner to the chair

of the Fee and Cost Committee, Henry G. Garrard, III. Mr. Balefsky confirmed

Mr. Garrard’s agreement that state time would be considered for compensation in

the common-benefit fund process:

Henry, thank you for hosting the meeting yesterday in Atlanta. One of our major concerns is the compensation for state court litigation common benefit work. This will confirm that you agreed that such work will be compensated and included in the process. We look forward to working with the committee.


8

See Email dated February 11, 2016 (attached as Exhibit "E"). No reply disputing this

arrangement was sent or received.

The eligibility of state court time for common-benefit compensation was

underscored in PTO 262 entered by Judge Goodwin on June 23, 2017. In re Ethicon,

Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-md-02327 (S. D. W. Va.

Oct. 4, 2012); ECF No. 4044 (attached as Exhibit “F”). This Order established the

procedure and provides further guidance for the Fee and Cost Committee’s review

of time and expenses submitted by counsel seeking common benefit

reimbursement. The Order also specifically recognized that state court work would

be considered for compensation:

Common benefit work performed in state court litigation - whether the proceedings are consolidated or not - should be considered to the extent it contributed to the outcome of the litigation and benefitted the MDL. The Court recognizes, particularly to the extent there are agreements between state court attorneys and MDL leadership, that state court attorneys may make an application for common benefit fees and expenses to be fully considered by the FCC. In order for an attorney's work in state court litigation to be considered for payment from the Common Benefit Fund, settlements from the requesting attorneys must include the five percent assessment.

Id. at p. 5.

C. Kline & Specter contributed significantly to mesh litigation, including achieving multiple verdicts in state-court trials.

Kline & Specter represents approximately 3,000 individuals who have filed

lawsuits seeking recovery for personal injuries caused by pelvic mesh implants. Many


9

of those individuals filed lawsuits coordinated in the instant MDL proceedings. Other

individuals filed suit in various state courts around the country. As noted above, Kline

& Specter’s Lee Balefsky is a member of the Plaintiffs' Steering Committee. As a result,

Kline & Specter is a Participating Counsel and is subject to the 5% withholding.

In representing its clients, Kline & Specter has invested thousands of hours of

time and spent significant sums to support plaintiffs in pelvic mesh litigation. Relying

by the representation that state court time would be compensable, Kline & Specter

threw itself into litigating cases in state court and achieved considerable success there.

Beginning in 2015, Kline & Specter has tried multiple pelvic mesh cases in the

Philadelphia County Court of Common Pleas. These trials have produced verdicts in

the plaintiffs’ favor of $12.5 million, $13.5 million, $20 million, $2.16 million, $57.1

million, and $41 million—a total of $146.26 million across six verdicts.2 Beyond the

2 Hammons v. Ethicon, Inc. resulted in a plaintiffs’ verdict in December 2015. The jury awarded $5.5 million in compensatory damages and $7 million in punitive damages. This verdict was affirmed by the Pennsylvania Superior Court. On April 10, 2019, the Pennsylvania Supreme Court rejected all appellate issues except as to personal jurisdiction.

Carlino v. Ethicon, Inc. resulted in a plaintiffs’ verdict in February 2016. The jury awarded $3.5 million in compensatory damages and $10 million in punitive damages. The Pennsylvania Superior Court affirmed this verdict on April 11, 2019.

Engleman v. Ethicon, Inc. resulted in a plaintiffs’ verdict in April 2017. The jury

awarded $2.5 million in compensatory damages and $17.5 million in punitive damages. The case is on appeal. Continued on following page


10

sheer enormity of the verdicts, Kline & Specter’s success in Philadelphia County has

been essential to mesh litigation by developing successful trial strategies, bolstering trial

packages, bringing about key rulings, weakening Ethicon’s ability to defend these cases,

and driving Ethicon to settle cases. Kline & Specter and its clients have contributed

many millions of dollars to the common benefit fee fund.

D. The Fee and Cost Committee went back on its word concerning the compensability of state-court time.

Years of litigation proceeded under the assumption that state-time would be

eligible for common-benefit compensation. As noted above, Kline & Specter invested

thousands of hours developing and successfully trying multiple cases. Unfortunately,

in February 2018, the Fee and Cost Committee and its “external review specialist,” a

former judge named Daniel J. Stack, issued a supposed “rule” stating that “[o]nce a

favorable result was reached with regard to a particular TVM product, no further state

Beltz v. Ethicon, Inc. resulted in a plaintiffs’ verdict in June 2017. The jury awarded $2.16 million in compensatory damages. This verdict has been affirmed in the Pennsylvania appellate courts

Ebaugh v. Ethicon, Inc. resulted in a plaintiff’s verdict in September 2017. The jury awarded $7.1 million in compensatory damages and $50 million in punitive damages. The case is on appeal.

Emmet v. Ethicon, Inc. resulted in a plaintiffs’ verdict in January 2019. The jury awarded $16 million in compensatory damages and $25 million in punitive damages. The case is on appeal.


11

court time was considered by the Fee and Cost Committee as being for the common

benefit.” See Letter Mr. Stack dated February 27, 2018 (attached as Exhibit “G”).

This was not the deal upon which the litigation had been grounded. It was a

material alteration of that deal. Yet in their preliminary recommendations concerning

common-benefit time, the Fee and Cost Committee used this “rule” as an excuse for

not recognizing a substantial amount of Kline & Specter’s state court time. The

Committee reasoned that “[i]n the Philadelphia Mass Tort Program in Pennsylvania

State Court, the firm assisted in obtaining several successful verdicts against Ethicon,

although most of those verdicts came on products where Plaintiffs’ verdicts were

already obtained either in the MDL or in prior state courts.” See Exhibit “A” to the

September 13, 2018, Transvaginal Mesh MDL Common Benefit Fee and Cost

Committee Preliminary Written Recommendation (attached as Exhibit “H”). This

“rule” eliminated thousands of hours of important work performed by Kline & Specter

in direct contravention to previous court orders, assurances by the Fee and Cost

Committee, and established mass tort strategy where litigation on multiple fronts is

encouraged. See In re Vioxx, 802 F. Supp. 2d 740, 764, 769, 771, 774 (E.D. La. 2011).

(emphasizing the importance of state court discovery and trials in that analogous

litigation, the value of repeated trials on a single product, and the value of close

consultation with state court judges on common benefit allocation). This about-face

upended a basic premise upon which Kline & Specter became actively involved in pelvic

mesh litigation.


12

E. Judge Goodwin orders a 5% common benefit fee even though no global settlement was reached and the results for plaintiffs have generally been poor.

As of this writing, many pelvic mesh cases before Judge Goodwin have

settled—but by no means all of them. Thousands of cases remain unresolved, both

in the MDL and in state-courts around the country. Trials remain a real possibility

for plaintiffs who have completed discovery through MDL “waves.” Further, those

settlements that have occurred are wholly inadequate given the per case settlement

average of approximately $40,000, the seriousness and permanence of the injuries

suffered by the plaintiffs, and the average trial award of over $10 million.

Notwithstanding the lack of global settlement, on November 12, 2018, the

Fee and Cost Committee filed a Petition for an Award of Common Benefit

Attorneys' Fees and Expenses. It sought a final order that 5% of all individual

awards be held back to form a common-benefit fund that would be allocated to

counsel who performed common benefit work for fees and reimbursement of

expenses. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2:10-md-

02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 7200 (attached as Exhibit “I”). In effect,

the Fee and Cost Committee sought distribution of all money that had been received

by the common benefit fee fund (approximately $366 million and growing) even though

this large amount exists simply because of the large number of cases filed.

On November 26, 2018, Kline & Specter objected to the recommended hold

back of 5% as too high and unreasonably generous given the relatively poor outcome


13

of this litigation for individual plaintiffs. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab.

Litig., MDL No. 2327, 2:10-md-02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 7242,

(attached as Exhibit “J”). Kline & Specter noted that the defendants had paid

approximately $7.25 billion in settlements and judgments with respect to tens of

thousands of cases; but the Steering Committee had failed to generate a global

settlement and many cases remained pending in the MDL and courts throughout the

country. Kline & Specter noted that the average settlement for pelvic mesh cases was

about $40,000 even though trial results showed that the cases had significantly greater

value—an average exceeding $24 million. As noted above, Kline & Specter had tried

pelvic mesh cases in the Philadelphia County Court of Common Pleas to results of

$12.5 million, $13.5 million, $20 million, $2.5 million, $57.1 million, and $41 million—

a total of $146.26 million. Kline & Specter also highlighted the failure of the Fee and

Cost Committee to ground their request in a valid methodology, and the Committee’s

refusal to recognized state-court time.

On January 30, 2019, Judge Goodwin granted the Fee and Cost Committee

petition and ordered that 5% be held back from every pelvic mesh plaintiffs’ recovery,

creating a common-benefit fund of $366,102,875.06 at this juncture. That fund is

expected to grow as more cases resolve and 5% would be held back from those

recoveries as well. At the current rate, the fund is predicted to exceed $550 million

before all cases resolve. In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig., MDL No.

2327, 2:10-md-02327 (S. D. W. Va. Oct. 4, 2012); ECF No. 7519, (attached as Exhibit


14

“K”). This Order was cross-filed in each of the 7 MDL dockets concerning pelvic

mesh.3

On February 28, 2019, Kline & Specter appealed the order in each of the

MDL dockets. This Court sua sponte consolidated cases under the above-referenced

lead docket. On April 2, 2019, the Fee and Cost Committee moved to dismiss the

appeals on the ground that Kline & Specter had waived its right to an appeal. This

response ensues.

3 The orders and dockets are:

1. In C.R. Bard, Pelvic Repair System Products Liability Litigation, Docket No. 2:1O- md-02187, Pretrial Order #298 and Memorandum Opinion entered January 30, 2019, Docket Entry No. 6986 (granting the Common Benefit Fee and Cost Committee's Petition for an Award of Common Benefit Attorneys' Fees and Expenses.

2. In American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation,

Docket No. 2:12-md-02325, Pretrial Order #273 and Memorandum Opinion entered January 30, 2019, Docket Entry No. 7122 (same).

3. In Boston Scientific, Corp., Pelvic Repair System Products Liability Litigation, Docket No. 2:12-md-02326, Pretrial Order #201 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 7758 (same).

4. In Ethicon, Inc., Pelvic Repair System Products Liability Litigation, Docket No. 2:12-md-02327, Pretrial Order #327 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 7519 (same).

5. In Coloplast, Pelvic Repair System Products Liability Litigation, Docket No. 2:1O- md-02187, Pretrial Order #148 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 2337 (same).

6. In Cook Medical, Pelvic Repair System Products Liability Litigation, Docket No. 2:13-md-02440, Pretrial Order #86 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 691 (same).

7. In Neomedic, Pelvic Repair System Products Liability Litigation, Docket No. 2:1O- md-02187, Pretrial Order #39 and Memorandum Opinion, entered January 30, 2019, Docket Entry No. 198 (same).


15

II. ARGUMENT

In its motion to dismiss, the Fee and Cost Committee highlights the portion of

PTO No. 18 stating that Participating Counsel such as Kline & Specter have waived

any right to appeal Judge Goodwin’s determinations concerning the amount and

allocation of common benefit fees and that Judge Goodwin is the final decision-maker

with respect to those issues. This language should not be enforced for multiple reasons.

First, the persons financially impacted by the 5% order had no participation in

forming the order—the plaintiffs themselves. The money being directed into the

common benefit fee fund comes off the top of any judgment or settlement. Yet no

client participated in the development of this order. Indeed, over 2,800 of Kline &

Specter’s clients were not even represented by counsel when Pre-Trial Order No. 18

was entered on October 4, 2012. The application of an Order barring appeal to persons

who were not represented, had not filed suit, and whose cases were not part of the

MDL when the Order was entered violates the due process rights of “reasonable notice

and opportunity to be heard.” See Boddie v. Connecticut, 401 U.S. 371, 378 (1971). An

agreement not to appeal cannot apply to people who were not parties or signatories

when the agreement was made. See Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 313 (1950). ((due process requires that “deprivation of life, liberty or property

by adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case.”).


16

Appellee cites numerous cases where a party to litigation has waived a right to

appeal. None of them remotely touch on the circumstances present here, where an

order entered at the outset of litigation is being invoked to deprive appellate and

substantive rights of persons were not even litigants when the order was entered—who

had no part in the discussions with the Steering Committee or the order itself. Appellee

focuses initially on Poliquin v. Garden Way, Inc., 989 F.2d 527 (1st Cir.1993), where a

plaintiff agreed to a protective order concerning the confidentiality of documents.

After the case resolved, the plaintiff filed a motion to determine whether he could

publicize certain items. The defendant opposed the motion on substantive grounds

and the district court denied the motion. On appeal, the defendant argued that the

plaintiff had agreed to be “bound” by the underlying order and settlement, and hence

waived his right to an appeal. The First Circuit rejected this argument because it was

being raised for the first time on appeal. In reaching the merits, the First Circuit also

noted that “appellate courts have discretion to resolve issues waived or abandoned at

trial.” Id. at 531. The facts of Poliquin are removed from this case. If Poliquin stands

for anything, it is that this Court has the power and discretion to hear Kline & Specter’s

appeal on the merits.

Appellee also focuses on Brown v. Gillette Co., 723 F.2d 192 (1st Cir. 1983), where

the parties had reached a settlement agreement under which the district court was

granted final and binding authority to award certain damages. The parties also agreed

to waive any and all right of appeal related to the court’s decision. The defendant was


17

unhappy with the district court’s decision and appealed. The First Circuit dismissed

the appeal on the ground that the defendant was bound by the waiver. The Court

explained that “those who give up the advantage of a lawsuit in return for obligations

contained in a negotiated decree, rely upon and have a right to expect a fairly literal

interpretation of the bargain that was struck and approved by the court.” Id. at 192-93.

Here, the plaintiffs did not participate in the discussions that resulted in PTO No. 18.

They did not agree to issuance of the Order. Thousands of Kline & Specter’s clients

were not even represented and had not filed suit when that Order was issued. Those

people did not “give up” their procedural and substantive rights in exchange for a

negotiated settlement. Yet Appellee proposes that those rights were denied from the

outset. The facts in Brown highlight the equitable and legal distinctions that render this

case entirely different. The result in Brown was correct. By contrast, Appellee’s

argument is unconscionable and wrong.

Appellee also focuses on In re Lybarger, 793 F.2d 136 (6th Cir. 1986). This was

an age discrimination action where the parties entered into a settlement, memorialized

in a consent decree, providing that the district court’s decision concerning attorneys’

fees would be final and not appealable. The plaintiff filed a supplemental motion for

payment of attorneys’ fee, which the district court denied. The Sixth Circuit dismissed

the plaintiff’s resulting appeal on the basis that the plaintiff had waived her right to

appeal and assumed the risk of an unreasonable decision. Id. at 138-39. As with Brown,

the contrasting facts of Lybarger underscore the unfairness inherent in depriving


18

plaintiffs of the right to challenge a judicial decision impacting (and decreasing) their

monetary recoveries on the basis of an order entered at the outset of the litigation,

without notice or an opportunity to be heard.

Taken as a whole, the numerous cases cited by Appellee involved multiple

different issues. They involve settlements agreements, contract disputes, stipulations,

and criminal plea agreements—all involving a party who made a knowing and voluntary

decision to reach a binding agreement after litigating their substantive rights. None of

them involve the scenario presented here. At best, those cases involve a party directly

involved in the litigation who made a knowing and voluntary choice to waive an

appellate right. “A waiver is ordinarily an intentional relinquishment or abandonment

of a known right or privilege.” See Johnson v. Zerbst, 304 U.S 458, 464 (1938). That

simply was not the case here—not for the thousands of Kline & Specter clients who

came to be represented and filed suit after the October 2012 Order was entered. The

contrasting facts of Appellee’s cases only underscore the validity of this appeal.

At bottom, the “waiver” language relied upon by Appellee represents an

unconscionable and unprecedented effort to abrogate the authority and jurisdiction of

this Court and the Supreme Court. It is especially wrong to abrogate the right of appeal

in the mass tort context, which is an area of litigation fraught with conflict among many

parties and their counsel and with the potential for abuse. See Elizabeth Chamblee

Burch and Margaret Williams, Repeat Players in Multidistrict Litigation: The Social Network,

102 Cornell L. Rev. 1445 (Sept. 2017) (discussing the lack of rules and oversight that


19

allow mass tort settlements to be an area ripe for self-enriching behavior by insider law

firms). These systematic problems necessitate the corrective hand of our appellate

system—at least the opportunity for the appellate system to consider correction. For lead

counsel to even suggest abrogation of a right of appeal in an early pre-trial order

presages a serious potential for abuse licensed and emboldened by the knowledge that

no appeal may be heard—not by this Court, or any Court, no matter how serious the

breach of law or fiduciary duty. The motion should be denied on this ground alone.

Second, Kline & Specter would not have acceded to the language in PTO No.

18 if not for the representation that time spent litigating state-court cases would be

eligible for common-benefit fees. Kline & Specter was told that state-court time would

be compensable both by the Court and the Fee and Cost Committee. The firm relied

on those representations when it did not object to the October 2012 Order. This was

a contractual understanding. A basic principle of contract law is that mutual assent is

required to effectuate a modification to an agreement. See Keco Industries, Inc. v. ACF

Industries, Inc., 316 F.2d. 513, 516 (4th Cir. 1963). There has been no mutual assent here.

The contract has been violated.

As noted above, Judge Goodwin himself stated in PTO No. 18 that state court

work would be compensated:

The court contemplates that work done for the common benefit through the Bard MDL, in federal litigation prior to the formation of this MDL or through state court proceedings in New Jersey, Delaware, Massachusetts, Minnesota, West Virginia and elsewhere will be compensable time, and can be submitted so long as it has been


20

approved and agreed to by the co-lead of the applicable MDL and/or the Coordinating Co-lead counsel.

See PTO No. 18 at pp. 11-12. Judge Goodwin stated that state-court time would

be eligible for compensation in subsequent orders as well. Mr. Garrard, the chair

of the Fee and Cost Committee, also committed that state-court time would be

eligible for compensation. The message that state time would be compensated was

clear and consistent. This changed in February 2018, when the Fee and Cost

Committee made an initial recommendation that excluded Kline and Specter state-court

time. Despite multiple assurances including from Judge Goodwin, the Fee and Cost

Committee refused to consider thousands of hours expended by Kline & Specter

in state-court common benefit time. It refused even though state-court trials have

been essential to the overall success of pelvic mesh litigation as they resulted in

substantial plaintiffs’ verdicts and created comprehensive trial packages for the

benefit of all pelvic mesh plaintiffs. It refused even as Kline & Specter’s state-court

awards will be assessed a 5% fee, adding substantially to the common benefit fee

fund, without recognition of the common benefit those verdicts have provided.

This is violative of the rights of Kline & Specter’s clients.

Finally, the waiver language should be disregarded because of the conflict it

creates between attorneys and clients. The clients whose recoveries are being

diminished by an excessive common benefit fee should have the loyalty of their

counsel in pursuing that issue. PTO No. 18 invites counsel to disregard their


21

clients’ interests when they have a selfish interest of pursuing a common benefit

fee. This is an unacceptable conflict. It should not have been created at the outset

of the litigation. It should not be honored now.

III. CONCLUSION

The motion should be denied.


By: /s/ Charles L. Becker

Shanin Specter, Esquire Lee B. Balefsky, Esquire Charles L. Becker, Esquire Kline & Specter, P.C. 1525 Locust Street, 19th Floor Philadelphia, PA 19102 (215) 772-1000 Charles M. Love, III, Esquire Floyd E. Boone, Esquire Bowles Rice, LLP 600 Quarrier Street Charleston, WV 25301 (304) 347-1100.




On this day, I served the foregoing brief on the following counsel through the

Court’s electronic filing system:

Benjamin L. Bailey, Esquire Raymond S. Franks II, Esquire BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 Counsel for the Appellee Fee and Cost Committee

/s/ Charles L. Becker Charles L. Becker, Esq.



EXHIBIT A






















EXHIBIT B



CHARLESTON DIVISION

IN RE: ETHICON, INC. PELVIC REPAIR SYSTEMS MDL NO. 2327 PRODUCTS LIABILITY LITIGATION

---------------------------------------------------------THIS DOCUMENT RELATES TO ALL CASES

PRETRIAL ORDER # 18 (Agreed Order Regarding Management of Timekeeping, Cost Reimbursement

and Related Common Benefit Issues)

The parties have submitted this Agreed Order to the court in anticipation of the

possibility that, at some time in the future, there may be applications to this court by

attorneys for payment of common benefit fees or expenses. The court now issues the

following preliminary procedures and guidelines at this early juncture in the case, but

expresses no opinion regarding whether payment of common benefit fees or expenses

will ever become appropriate. This Agreed Order merely provides guidance so that,

should the issue become ripe, any attorneys applying for common benefit fees or

expenses will have notice of the standards the parties have agreed will be employed in

assessing those applications. These guidelines are not meant to be exhaustive, and the

court may issue additional procedures, limitations, and guidelines in the future, if

appropriate.

1. Appointment of CPA

The forms and records detailing both time and expenses shall be subject to

periodic review by Chuck Smith, CPA, who is hereby appointed upon recommendation

of the Plaintiffs’ Executive Committee and Co-Liaison Counsel to perform such services


2

as set forth in this Order and to otherwise make such periodic and discreet reports to the

court as requested and to the Executive Committee and Co-Liaison. Said CPA shall be

paid from the common benefit funds and shall work with the Executive Committee and

Co-Liaison Counsel to insure the accuracy of the submissions and all accounts and

records.

2. Common Benefit Fund for Expenses

From time to time, the Executive Committee shall make such assessments and

shall receive and hold such funds as necessary to effectively prosecute the interests of the

litigation. Such funds shall be held in such accounts at a federally insured Banking

institution as designated and approved between Co-Liaison Counsel, Coordinating Co-

Leads and the CPA. The account shall be maintained by the PSC with primary oversight

of Coordinating Co-Lead and Co-Liaison Counsel and shall be subject to periodic review

by the CPA. Any funds to be paid out of such account shall be paid only upon the

direction of the Coordinating Co-Lead Counsel. The PSC shall apply for and receive a

Federal Tax ID number for such account.

3. Administration

For PSC counsel appointed by the court or acting under the direction of the

leadership of the PSC, the recovery of common benefit time and cost reimbursements

will be allowed and is essential. This will be for “participating counsel” as defined

herein. Furthermore, participating counsel shall only be eligible to receive common

benefit attorneys’ fees and cost reimbursement if the time expended, costs incurred and

activity in question were (a) for the common benefit, (b) appropriately authorized (as

defined herein specifically in section 3), (c) timely submitted, and (d) approved by this


3

court. This Order sets forth the guidelines regarding the submission and compensability

of common benefit time and expenses. Plaintiffs’ counsel who seek to recover court-

awarded common benefit attorneys’ fees and expenses in connection with this litigation

shall keep a daily contemporaneous record of their time and expenses, noting with

specificity the amount of time and particular activity along with confirmation that

authority was obtained to have undertaken that common benefit effort. For the purpose

of coordinating these guidelines and tracking submissions, the Co-Liaison Counsel,

together with the Coordinating Co-Lead Counsel and Executive Committee, shall employ

a Certified Public Accountant appointed by the court. The CPA will insure proper

compliance by the parties with this Order and work with the Coordinating Co-Leads to

manage the litigation fund and administer the payment of the expenses (not fees) from the

litigation fund. All counsel working on common benefit activities shall submit a separate

report of their time and expense records every six weeks (such reports shall be submitted

within 20 days of the due date as prescribed in Time and Expense Reports approved by

the CPA, by email, as follows:

American Medical Systems MDL

CPA: [email protected]

AMS Lead Counsel: Fidelma Fitzpatrick at [email protected] Amy Eskin at [email protected]

Coordinating Co-leads: Henry Garrard at [email protected] Thompson at [email protected] Aylstock at [email protected]


4

Plaintiffs’ Co-Liaison Counsel: Harry F. Bell, Jr. at [email protected] Farrell at [email protected] Frankovitch at [email protected]

Boston Scientific MDL


Boston Scientific Lead Counsel: Clayton Clark at [email protected] Aimee Wagstaff at [email protected]



C.R. Bard MDL


C.R. Bard Lead Counsel: Henry Garrard at [email protected] Derek Potts at [email protected]



Coloplast MDL



5

Coloplast Lead Counsel: Mark Mueller at [email protected] Robert Salim at [email protected] Riley Burnett at [email protected]



Ethicon MDL


Ethicon Lead Counsel: Thomas Cartmell at [email protected] Renee Baggett at [email protected]



The failure to secure authority to incur common benefit time and expenses, or

maintain and timely provide such records or to provide a sufficient description of the

activity will be grounds for denying the recovery of attorneys’ fees or expenses in whole

or in part.

“Participating Counsel” are counsel who subsequently desire to be considered for

common benefit compensation and as a condition thereof agree to the terms and

conditions herein and acknowledge that the court will have final, non-appealable


6

authority regarding the award of fees, the allocation of those fees and awards for cost

reimbursements in this matter. Participating Counsel have (or will have) agreed to and

therefore will be bound by the court’s determination on common benefit attorney fee

awards, attorney fee allocations, and expense awards, and the Participating Counsel

knowingly and expressly waive any right to appeal those decisions or the ability to assert

the lack of enforceability of this Agreed Order or to otherwise challenge its adequacy.

Nothing in this Agreed Order shall be construed to prohibit an agreement between the

PSC and state court litigants who may later seek a common benefit allocation.

A. Expense Limitations

1. Travel Limitations

Only reasonable expenses will be reimbursed. Except in extraordinary

circumstances approved by the Coordinating Co-Lead Counsel, all travel reimbursements

are subject to the following limitations:

a. Airfare. Reasonable and appropriate airfare will be reimbursed and is subject to audit and review. Airfare deemed to be excessive or which is not related to an assigned task or judicial requirement will not be reimbursed.

b. Hotel. Reasonable and appropriate hotel accommodations will be reimbursed. Hotel accommodations deemed to be excessive or which are not related to an assigned task or judicial requirement will not be reimbursed.

c. Meals. Meal expenses must be reasonable.

d. Cash Expenses. Miscellaneous cash expenses for which receipts generally are not available (tips, luggage handling, pay telephone, etc.) will be reimbursed up to $30.00 per trip, as long as the expenses are properly itemized.

e. Rental Automobiles. Luxury automobile rentals will not be fully reimbursed, unless only luxury automobiles were available. If luxury automobiles are selected when non-luxury vehicles are


7

available, then the difference between the luxury and non-luxury vehicle rates must be shown on the travel reimbursement form, and only the non-luxury rate may be claimed, unless such larger sized vehicle is needed to accommodate several counsel or materials necessary to be transported to a deposition or trial.

f. Mileage. Mileage claims must be documented by stating origination point, destination, total actual miles for each trip, and the rate per mile paid by the member’s firm. The maximum allowable rate will be the maximum rate allowed by the IRS.

2. Non-Travel Limitations

a. Long Distance, Conference Call and Cellular Telephone Charges. Common benefit long distance, conference call and cellular telephone charges must be documented as individual call expenses in order to be compensable. Copies of the telephone bills must be submitted with notations as to which charges relate to the MDL litigation. Such charges are to be reported at actual cost.

b. Shipping, Overnight, Courier, and Delivery Charges. All claimed common benefit shipping, overnight, courier or delivery expenses must be documented with bills showing the sender, origin of the package, recipient, and destination of the package. Such charges are to be reported at actual cost.

c. Postage Charges. A contemporaneous postage log or other supporting documentation must be maintained and submitted for common benefit postage charges. Such charges are to be reported at actual cost.

d. Telefax Charges. Contemporaneous records should be maintained and submitted showing faxes sent and received for common benefit matters. The per-fax charge shall not exceed $1.00 per page.

e. In-House Photocopy. A contemporaneous photocopy log or other supporting documentation must be maintained and submitted. The maximum copy charge is .20¢ per page.

f. Computerized Research – Lexis/Westlaw. Claims for Lexis or Westlaw, and other computerized legal research expenses should


8

be in the exact amount charged the firm and appropriately allocated for these research services.

B. Verification

The forms detailing expenses shall be certified by a member of the PSC in each

firm attesting to the accuracy of the submissions. For those firms submitting time who are

not a member of the PSC, the forms shall be signed by a senior partner in that firm.

Attorneys shall keep receipts for all expenses. Credit card receipts are an appropriate

form of verification so long as accompanied by a declaration from counsel that work was

performed and paid for the common benefit.

C. Authorization for Compensable Common Benefit Work

Authorized Common Benefit Work includes assignments made by Coordinating

Co-lead Counsel and/or the Co-Lead Counsel of each MDL, who will work in

consultation with each other to facilitate the litigation. No time spent on developing or

processing purely individual issues in any case for an individual client (claimant) will be

considered or should be submitted, nor will time spent on any unauthorized work.

D. Common Benefit Work

1. Examples of authorized and unauthorized common benefit work include

but are not limited to:

a. Depositions: Participating Counsel may attend any deposition space permitting; however, if such counsel has not been designated as one of the authorized questioners or otherwise authorized to attend the deposition by Coordinating Co-Lead Counsel or a Co-Lead of an individual MDL, the time and expenses shall not be considered common benefit work, but rather considered as attending on behalf of such counsel’s individual clients.

b. Periodic MDL Conference Calls: These calls are held so that individual attorneys are kept up-to-date on the status of the litigation, and participation by listening to such calls is not


9

common benefit work. Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients, and that is a reason to listen in on those calls. The attorneys designated by the Coordinating Co-Lead Counsel to run those calls are working for the common benefit by keeping other lawyers informed and educated about the case, and their time will be considered for common benefit. Nothing in this paragraph shall be construed to prevent members of the PSC from submitting common benefit time for participation in PSC communications that are germane to all members of the PSC and are necessary to fulfill their PSC obligations.

c. Periodic Status Conferences. Regular status conferences are held so that the litigation continues to move forward and legal issues are resolved with the court. Individual attorneys are free to attend any status conference held in open court in order to keep up-to-date on the status of the litigation and participation, but attending and listening to such conferences is not common benefit work. Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients. Mere attendance at a status conference will not be considered a common benefit expense or common benefit time. Coordinating Co- Lead Counsel will consult with Co-Lead Counsel regarding matters to be discussed and argued at the Status conferences to determine counsel who will make presentations and insure proper coordination on issues. The attorneys designated by the Coordinating Co-Lead Counsel, to address issues that will be raised at a given status conference or requested by the Coordinating Co-Lead Counsel to be present at a status conference are working for the common benefit and their time will be considered for common benefit. Similarly, Co-Lead Counsel, as well as any other attorney whose attendance at a status conference is specifically requested by the Judge in that case may submit their time for evaluation as common benefit time.

d. Committee Meetings or Calls: During committee phone calls or other meetings there is a presumption that only one participant per firm will qualify for common benefit time, unless otherwise authorized by the Co-Lead Counsel in consultation with the Coordinating Co-Lead Counsel.

e. Identification and Work Up of Experts: Participating Counsel are expected to identify experts in consultation with the Coordinating Co-Lead Counsel, the Co-Lead Counsel for the individual MDLs, and the Expert Committee, which is co-chaired by Ben Anderson and Mark Mueller, who are responsible to coordinate with the


10

Coordinating Co-Lead Counsel and the Co-Leads of the individual MDLs. If a Participating Counsel travels to and retains an expert without the knowledge and approval of the Coordinating Co-Lead Counsel or a Co-Lead of an MDL, they understand that the MDL may not need or use that expert and their time and expenses may not be eligible for common benefit expenses/work.

f. Attendance at Seminars: Mere attendance at a seminar does not qualify as common benefit work or a common benefit expense unless the individual is attending at the direction of Coordinating Co-Lead counsel and for the benefit of the MDL.

g. Document Review: Only document review specifically authorized by the Co-Lead Counsel for the MDL and assigned to an attorney will be considered common benefit work. The review done in a designated attorney's office will be performed by appropriately trained individuals selected by the attorney. If a reviewer elects to review documents that have not been assigned to that attorney by the Co-Lead Counsel for the MDL, that review is not considered common benefit. Counsel will receive periodic reports from the vendor(s) retained to manage the electronic production, of computer billing time for depository review. Such Vendor should have the capability to track actual time spent by each attorney reviewing documents. Participating Counsel should bring any discrepancy to the attention of the Coordinating Co-Lead Counsel or its designee within thirty days of receipt of the Vendors report. Failure to timely bring any claimed discrepancy to the attention of the Coordinating Co-Lead Counsel Committee will result in the compensable document review time being presumptively deemed that which was electronically logged by Vendor. A Fee Committee at the appropriate time will review all fee submissions related to document review, and document review that is duplicative of what has been assigned in the MDL may not be compensated.

h. Review of Pleadings and Orders: Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients, and review of pleadings and orders is part of that obligation. Only those attorneys designated by the Coordinating Co-Leads or the Co-Leads of the individual MDLs to review or summarize those pleadings or orders for the MDL are working for the common benefit and their time will be considered for common benefit. All other counsel are reviewing those pleadings and orders for their own benefit and the benefit of their own clients, and the review is not considered common benefit. Nothing in this paragraph shall be construed to prevent the Executive Committee, Co-lead, Co-Liaison Counsel and the PSC


11

from submitting common benefit time for reviewing orders of the court that are germane to all members of the PSC and are necessary for review to fulfill their committee or court appointed obligations.

i. Emails: Time recorded for reviewing emails, and providing non substantive responses, generally is not compensable unless germane to a specific task being performed by the receiving or sending attorney or party that is directly related to that email. Thus, for example, review of an email sent to dozens of attorneys to keep them informed on a matter on which they are not specifically working would not be compensable. Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients and that is a reason to review emails to a larger group which involves a matter on which the recipient is not directly and immediately working. If time submissions are heavy on email review and usage with little related substantive work, that time may be heavily discounted or not compensated at all.

j. Review of Discovery Responses: Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients and that is a reason to review discovery responses served in this litigation. Only those attorneys designated by the Co-Lead Counsel for the individual MDL to review and summarize those discovery responses for the MDL are working for the common benefit and their time will be considered for common benefit. All other counsel are reviewing those discovery responses for their own benefit and the benefit of their own clients, and the review is not considered common benefit.

k. Bellwether Trials. While the work-up of individual cases is notconsidered common benefit, in the event that a case is selected as part of an approved early preference or bellwether trial process in the MDL or participating state court proceedings, the time and expenses in trying the case (including work performed as part of the approved bellwether process) may be considered for common benefit to the extent it complies with other provisions of this Agreed Order or Participation Agreement.

l. Pre-Litigation Hours Materially Advanced. The court will have the authority and discretion to permit the accounting of pre-litigation hours materially advanced for common benefit.

m. State Court and Bard MDL common benefit hours. The court contemplates that work done for the common benefit through the


12

Bard MDL, in federal litigation prior to the formation of this MDL or through state court proceedings in New Jersey, Delaware, Massachusetts, Minnesota, West Virginia and elsewhere will be compensable time, and can be submitted so long as it has been approved and agreed to by the co-lead of the applicable MDL and/or the Coordinating Co-lead counsel.

n. Paralegal Hours. Common benefit time performed by Paralegals will be approved based on the requirements set forth in this Agreed Order for attorneys.

In the event Plaintiffs’ Counsel are unsure if the action they are about to

undertake is considered a common benefit action, counsel shall ask the Coordinating Co-

Lead Counsel or Co-Lead Counsel in advance as to whether such time may be

compensable.

E. Time Keeping and Submission of Time Records

All time must be authorized and accurately and contemporaneously maintained.

Time shall be kept according to these guidelines as noted herein and submitted in the

Forms approved by the CPA. Participating Counsel shall keep a daily record of their time

spent in connection with common benefit work on this litigation, indicating with

specificity the hours, location and particular activity (such as “conducted deposition of

John Doe”). Time entries that are not sufficiently detailed may not be considered for

common benefit payments. All common benefit work time for each firm shall be

maintained in a tenth-of-an-hour increment.

The following shall be noted:

All time submissions must be incurred only for work authorized under this Agreed Order.

1. All time submissions must be made on the Forms approved by the CPA.

2. All time and expenses are subject to proper and timely submission every six (6) weeks (reports shall be submitted within 20 days of the close of the due date) of contemporaneous records certified to have been timely


13

received within the preceding six (6) weeks. Beginning November 1, 2012, submissions shall be made for all time incurred prior to the entry of this Agreed Order.

3. All expenses submissions must include receipts for all expenses.

4. All time and expense submissions must be electronically sent in the attached forms approved by the CPA every six (6) weeks to the attention of Co-Lead Counsel of the applicable MDL; to the coordinating Co-leads Henry Garrard, Fred Thompson and Bryan Aylstock; to the Plaintiffs’ Co-Liaison Counsel, Harry F. Bell, Jr., Paul Farrell and Carl Frankovitch; and to the CPA, as set forth above. Co-Lead Counsel of each MDL, Coordinating Co-Lead Counsel and Co-liaison Counsel will cooperatively share and maintain the data submitted with the Executive Committee. It is therefore essential that each firm, every six (6) weeks, timely submit its records for the preceding month.

5. Untimely Submissions. Failure to provide time and expense records on a quarterly basis as set forth herein shall result in a waiver of same.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to file a copy of this order in 2:12-md-2327 and it

shall apply to each member related case previously transferred to, removed to, or filed in

this district, which includes counsel in all member cases up to and including civil action

number 2:12-cv-06168. In cases subsequently filed in this district, a copy of the most

recent pretrial order will be provided by the Clerk to counsel appearing in each new

action at the time of filing of the complaint. In cases subsequently removed or

transferred to this court, a copy of the most recent pretrial order will be provided by the

Clerk to counsel appearing in each new action upon removal or transfer. It shall be the

responsibility of the parties to review and abide by all pretrial orders previously entered


14

by the court. The orders may be accessed through the CM/ECF system or the court=s

website at www.wvsd.uscourts.gov.

ENTER: October 4, 2012


15

Submitted and Approved by the Plaintiffs’ Coordinating Co-Leads, Executive Committee and Co-liaison Counsel, who have consulted and approved the same among all PSC Counsel

By: /s/Harry F. Bell, Jr. Harry F. Bell, Jr. Plaintiffs’ Co-Liaison Counsel

[email protected] West Virginia Bar No. 297 The Bell Law Firm, PLLC P. O. Box 1723 Charleston, WV 25326 (304) 345-1700

By: /s/Paul T. Farrell, Jr. Paul T. Farrell, Jr. Plaintiffs’ Co-Liaison Counsel

[email protected] West Virginia Bar No. 7433 Greene Ketchum Bailey Walker Farrell & Tweel P. O. Box 2389 Huntington, WV 25724-2389 (304) 525-9115

By: /s/Carl N. Frankovitch Carl N. Frankovitch Plaintiffs’ Co-Liaison Counsel

[email protected] West Virginia Bar No. 4746 Frankovitch Anetakis Colantonio & Simon 337 Penco Road Weirton, WV 26062 (304) 723-4400

By: /s/Henry G. Garrard, III Henry G. Garrard, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee

[email protected] Georgia Bar No. 286300


16

Blasingame Burch Garrard & Ashley, PC P. O. Box 832 Athens, GA 30603 (706) 354-4000

By: /s/Fred Thompson, III Fred Thompson, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee

[email protected] South Carolina Bar No. 5548 Motley Rice, LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 (843) 216-9118

By: /s/Bryan F. Aylstock Bryan F. Aylstock Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee

[email protected] Florida Bar No. 078263 Alystock Witkin Kreis & Overholtz 17 E. Main Street, Suite 200 Pensacola, FL 32502 (877) 810-4808

By: /s/Clayton A. Clark Clayton A. Clark Plaintiffs’ Executive Committee

[email protected] Texas Bar No. 04275750 Clark, Love & Hutson, G.P. 440 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 757-1400

By: /s/Amy Eskin Amy Eskin Plaintiffs’ Executive Committee

[email protected] California Bar No. 127668


17

Hersh & Hersh 601 Van Ness Avenue, Suite 2080 San Francisco, CA 94102-6388 (415) 441-5544

By: /s/Derek H. Potts Derek H. Potts Plaintiffs’ Executive Committee

[email protected] Missouri Bar No. 44882 The Potts Law Firm, LLP 908 Broadway, 3rd Floor Kansas City, MO 64105 (816) 931-2230

By: /s/Aimee H. Wagstaff Aimee H. Wagstaff Plaintiffs’ Executive Committee

[email protected] Colorado Bar No. 36819 Andrus Hood & Wagstaff, PC 1999 Broadway, Suite 4150 Denver, CO 80202 (303) 376-6360

By: /s/Thomas P. Cartmell Thomas P. Cartmell Plaintiffs’ Executive Committee

[email protected] Missouri Bar No. 45366 Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 (816) 701-1100

By: /s/Fidelma P. Fitzpatrick Fidelma P. Fitzpatrick Plaintiffs’ Co-Lead Counsel

[email protected] Rhodes Island Bar No. 5417

Motley Rice, LLC 321 South Main Street, Suite 200 Providence, RI 02903 (401) 457-7700


18

By: /s/Renee Baggett Renee Baggett Plaintiffs’ Co-Lead Counsel

[email protected] Florida Bar No. 0038186 Aylstock, Witkin, Kreis & Overholtz 17 East Main Street, Suite 200 Pensacola, FL 32502 (850) 202-1010

By: /s/Mark C. Mueller Mark C. Mueller Plaintiffs’ Co-Lead Counsel

[email protected] Texas Bar No. 14623000 Mueller Law 404 West 7th Street Austin, TX 78701 (512) 478-1236

By: /s/Robert Salim Robert Salim Plaintiffs’ Co-Lead Counsel

[email protected] Louisiana Bar No. 11663 Law Offices of Robert L. Salim 1901 Texas Street Natchitoches, LA 71457 (318) 352-5999

By: /s/Riley Burnett Riley Burnett Plaintiffs’ Co-Lead Counsel

[email protected] Texas Bar No. 03428900 Law Offices of Riley L. Burnett, Jr. 440 Louisiana, Suite 1600 Houston, TX 77002 (713) 757-1400


EXHIBIT C



CHARLESTON DIVISION

IN RE: ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION MDL NO. 2327 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _


PRETRIAL ORDER # 62(AGREED ORDER ESTABLISHING MDL 2327 FUND TO COMPENSATE AND REIMBURSE ATTORNEYS FOR SERVICES PERFORMED AND EXPENSES

INCURRED FOR MDL ADMINISTRATION AND COMMON BENEFIT)

This Agreed Order is entered to provide for the fair and equitable sharing among

plaintiffs of the cost of special services performed and expenses incurred by “participating

counsel” acting for MDL administration and common benefit of all plaintiffs in this complex

litigation. This Agreed Order specifically incorporates by reference herein, and makes binding

upon the parties, the procedures and guidelines referenced in Pretrial Order #18 (Agreed Order

Regarding Management of Timekeeping, Cost Reimbursement and Related Common Benefit

Issues).

1. MDL 2327 Attorney Participation Agreement

Attached hereto as Exhibit “A” and incorporated herein is a voluntary “MDL 2327

Attorney Participation Agreement” (sometimes referred to as the “Participation Agreement”)

between the Plaintiffs’ Steering Committee (“PSC”) and other plaintiffs’ attorneys. The

Participation Agreement is a private and cooperative agreement between plaintiffs’ attorneys

only. It is not an agreement with defendant Ethicon, Inc., Ethicon, LLC, Johnson & Johnson,

American Medical Systems, Inc., Boston Scientific Corporation, C.R. Bard, Inc., Sofradim

Production SAS, Tissue Science Laboratories Limited, Mentor Worldwide LLC, Coloplast Corp.

or Cook Medical, Inc. (collectively “Defendants”). All PSC members are deemed to have


2

executed the Participation Agreement. “Participating Counsel,” as that term is used in the

Participation Agreement, include: (1) all members of the PSC and (2) any other plaintiffs’

attorneys who sign the Participation Agreement. Participating Counsel are entitled to receive the

MDL common-benefit work-product and the state court work-product of those attorneys who

have also signed the Participation Agreement and shall be entitled to seek disbursements as

Eligible Counsel as provided in section 4 of this Agreed Order. In return, Participating Counsel

agree to pay the assessment amount provided in section 3 of this Agreed Order on all filed and

unfiled cases or claims in state or federal court in which they share a fee interest. Counsel who

choose not to execute the Participation Agreement within ninety (90) days of entry of this Agreed

Order, are not entitled to receive Common-Benefit Work Product (as defined in the Participation

Agreement) and may be subject to an increased assessment on all MDL 2327 cases in which they

have a fee interest for the docket management and the administrative services provided by the

PSC and if they receive Common-Benefit Work-Product or any other work-product created

pursuant to this Agreed Order, or otherwise benefit by the work performed by the MDL and

other counsel working with the MDL pursuant to this Agreed Order.

2. Covered Claims

This Agreed Order applies to the following Ethicon, Inc., Ethicon, LLC, Johnson &

Johnson, American Medical Systems, Inc., Boston Scientific Corporation, C.R. Bard, Inc.,

Sofradim Production SAS, Tissue Science Laboratories Limited, Mentor Worldwide LLC,

Coloplast Corp., or Cook Medical claims (hereinafter collectively referred to as “mesh injury

claims”), whether direct or derivative:

a. All mesh injury claims now (as of the date of the entry of this Agreed

Order) or hereafter subject to the jurisdiction of MDL 2327, whether


3

disposed of before or after remand, regardless of whether counsel holding

a fee interest in such mesh injury claims have signed the MDL 2327

Attorney Participation Agreement, including but not limited to:

i. All mesh injury claims settled pursuant to an MDL supervised

Settlement Agreement between the parties;

ii. All mesh injury claims participating in MDL 2327 or on tolling

agreement;

iii. All mesh injury claims where attorneys who receive Common-

Benefit Work-Product or otherwise benefit by the work performed

by the PSC or common-benefit counsel working with the PSC

(including all firms that accessed the PSC document database prior

to the date of this Agreed Order) either agree or have agreed – for

monetary consideration – to settle, compromise, dismiss, or reduce

the amount of a claim or, with or without trial, recover a judgment

for monetary damages or other monetary relief, including

compensatory and punitive damages (hereinafter a “Settlement”),

with respect to any mesh injury claim are subject to an assessment

on the “Gross Monetary Recovery,” as provided herein; and

iv. All mesh injury claims in which any PSC member or participating

counsel has a financial interest.

b. All mesh injury claims, in which the plaintiffs’ attorneys have either:

i. Received the benefit of MDL 2327 work-product (including all

firms that accessed the PSC document database prior to the date of


4

this Agreed Order);

ii. Signed the MDL 2327 Attorney Participation Agreement, attached

hereto as Exhibit “A”; or

iii. Are members of the PSC.

(collectively hereinafter referred to as the “Covered Claims”).

3. Assessments and Payments into the MDL 2327 Fund for All Covered Claims

a. A total assessment for payment of attorneys’ fees and approved common-

benefit and MDL expenses of five percent (5%) of the Gross Monetary

Recovery shall apply to all Covered Claims (the “Assessment”).

b. In measuring the Gross Monetary Recovery:

i. Include all sums to be paid in settlement of the claim;

ii. Exclude court costs that are to be paid by any Defendant;

iii. Exclude any payments made directly by any Defendant on a formal

intervention asserted directly against the Defendant by third-

parties, such as to physicians, hospitals, and other health-care

providers on Court recognized valid subrogation claims related to

treatment of plaintiff; and,

iv. Include the present value of any fixed and certain payments to be

made in the future.

c. Defendants are directed to withhold the Assessment from amounts paid on

any Covered Claim and to pay the Assessment directly into the MDL 2327

Fund as a credit against the Settlement or Judgment. If for any reason the

Assessment is not or has not been so withheld, the Defendants as well as


5

the plaintiff and his or her counsel are jointly responsible for paying the

Assessment into the MDL 2327 Fund promptly.

d. From time to time, the PSC shall provide a list of all then-known Covered

Claims to the Administrator of the MDL 2327 Fund, Defendant’s Liaison

Counsel, plaintiffs’ counsel, and the Court or its designee. In connection

therewith, Defendant shall, upon request from the PSC, supply to the PSC

a list of all then-known Covered Claims, including the name of each

plaintiff and his or her attorney, if any.

e. A Defendant and its counsel shall not distribute any potential common

benefit portion of any settlement proceeds with respect to any Covered

Claims until: (1) Defendant’s counsel notifies the PSC in writing of the

existence of a settlement and the name of the individual plaintiff’s

attorney holding such Covered Claims and (2) Plaintiffs’ Liaison Counsel

has confirmed to Defendant’s counsel in writing that the individual

plaintiff attorney’s cases or claims are subject to an Assessment pursuant

to this Agreed Order.

f. Information regarding the amount of an Assessment paid or to be paid into

the MDL 2327 Fund will be provided only to the individual plaintiff’s

attorney holding the Covered Claim, the court-appointed Certified Public

Accountant, and the Court, and shall otherwise remain confidential and

shall not be disclosed to the PSC or any of its members or to any other

person unless ordered by the Court.


6

g. The Assessment represents a hold-back (In re Zyprexa Prods. Liab. Litig.,

467 F.Supp.2d 256, 266 (2d Cir. 2006)) and shall not be altered in any

way unless this Court, upon good cause shown, amends this Agreed Order.

h. Nothing in this Agreed Order is intended to increase the attorneys’ fee

paid by a client, nor to in any way impair the attorney/client relationship

or any contingency fee contract deemed lawful by the attorneys’

respective state bar rules and/or state court orders.

i. Upon payment of the Assessment into the MDL 2327 Fund, Defendants

shall be released from any and all responsibility to any person, attorney, or

claimant with respect to the Assessment placed into the MDL 2327 Fund.

Any person, attorney, or claimant allegedly aggrieved by an Assessment

pursuant to this Agreed Order shall seek recourse as against the MDL

2327 Fund.

j. The Court directs for purposes of this Assessment, that the CPA

previously appointed by the Court, Chuck Smith, shall oversee the

handling of such funds working in conjunction with plaintiff’s co-liaison

counsel. Such funds shall be held separate and apart as the CPA, who shall

act as Administrator of the fund, in an appropriate account.

4. Disbursements from the MDL 2327 Fund for Common Benefit Work

a. From time to time the Executive Committee may make application for

disbursements for the MDL 2327 Fund for common benefit work and

expenses. Upon a proper showing and Order of the Court, payments may

be made from the MDL 2327 Fund to attorneys who have provided


7

services or incurred expenses for the joint and common benefit of

plaintiffs and claimants whose claims have been treated by this Court as a

part of these proceedings in addition to their own client or clients. Such

“Eligible Counsel” include:



iii. Other attorneys performing similar responsibilities in state court actions, provided that all cases in which any putative common- benefit attorneys have a financial interest are subject to this Agreed Order.


consideration will be given to the experience, talent, and contribution

made by Eligible Counsel, and to the time and effort expended by each

as well as to the type, necessity, and value of the particular legal services

rendered.

c. If the MDL 2327 Fund exceeds the amount needed to make payments as

provided in this Agreed Order, the Court may order a refund to plaintiffs

and their attorneys who were subject to the Assessment. Any such refund

will be made in proportion to the amount that was assessed.

5. Incorporation by Reference

The MDL 2327 Attorney Participation Agreement is attached hereto as Exhibit A

and is incorporated by reference and has the same effect as if fully set forth in the body of this

Agreed Order.


8

6. No Objection to Order

Defense counsel having reviewed this proposed order express no objection to the same.

The court DIRECTS the Clerk to file a copy of this order in 2:12-md-2327 and it shall

apply to each member related case previously transferred to, removed to, or filed in this district,

which includes counsel in all member cases up to and including civil action number 2:13-cv-

20783. In cases subsequently filed in this district, a copy of the most recent pretrial order will be

provided by the Clerk to counsel appearing in each new action at the time of filing of the

complaint. In cases subsequently removed or transferred to this court, a copy of the most recent

pretrial order will be provided by the Clerk to counsel appearing in each new action upon

removal or transfer. It shall be the responsibility of the parties to review and abide by all pretrial

orders previously entered by the court. The orders may be accessed through the CM/ECF system

or the court=s website at www.wvsd.uscourts.gov.

ENTER: August 26, 2013

Submitted and Approved by the Plaintiffs’ Coordinating Co-Leads, ExecutiveCommittee and Co-liaison Counsel, who have consulted and approved the same

among all PSC Counsel

By: /s/Harry F. Bell, Jr. Harry F. Bell, Jr. Plaintiffs’ Co-Liaison [email protected] Virginia Bar No. 297

The Bell Law Firm, PLLC P. O. Box 1723 Charleston, WV 25326 (304) 345-1700


9

By: /s/Paul T. Farrell, Jr. Paul T. Farrell, Jr. Plaintiffs’ Co-Liaison Counsel [email protected] West Virginia Bar No. 7433

Greene Ketchum Bailey Walker Farrell & Tweel P. O. Box 2389 Huntington, WV 25724-2389 (304) 525-9115

By: /s/Carl N. Frankovitch Carl N. Frankovitch Plaintiffs’ Co-Liaison Counsel [email protected] Virginia Bar No. 4746

Frankovitch Anetakis Colantonio & Simon 337 Penco Road Weirton, WV 26062(304) 723-4400

By: /s/Henry G. Garrard, III Henry G. Garrard, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee [email protected] Bar No. 286300


By: /s/Fred Thompson, III Fred Thompson, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee [email protected] South Carolina Bar No. 5548

Motley Rice, LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 (843) 216-9118

By: /s/Bryan F. Aylstock Bryan F. Aylstock Plaintiffs’ Coordinating


10

Co-Lead Counsel and Executive Committee [email protected] Florida Bar No. 078263

Alystock Witkin Kreis & Overholtz 17 E. Main Street, Suite 200 Pensacola, FL 32502 (877) 810-4808

By: /s/Clayton A. Clark Clayton A. Clark Plaintiffs’ Executive Committee [email protected] Bar No. 04275750

Clark, Love & Hutson, G.P. 440 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 757-1400

By: /s/Amy Eskin Amy Eskin Plaintiffs’ Executive Committee [email protected] Bar No. 127668

Levin Simes LLP 353 Sacramento Street, 20th Floor San Francisco, CA 94111 (415) 426-3000

By: /s/Derek H. Potts Derek H. Potts Plaintiffs’ Executive Committee [email protected] Bar No. 44882

The Potts Law Firm, LLP908 Broadway, 3rd FloorKansas City, MO 64105 (816) 931-2230


11

By: /s/Aimee H. Wagstaff Aimee H. Wagstaff Plaintiffs’ Executive Committee [email protected] Colorado Bar No. 36819

Andrus Hood & Wagstaff, PC 1999 Broadway, Suite 4150 Denver, CO 80202 (303) 376-6360

By: /s/Thomas P. Cartmell Thomas P. Cartmell Plaintiffs’ Executive Committee [email protected] Missouri Bar No. 45366

Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 (816) 701-1100

By: /s/Fidelma P. Fitzpatrick Fidelma P. Fitzpatrick Plaintiffs’ Co-Lead Counsel [email protected] Rhodes Island Bar No. 5417


By: /s/Renee Baggett Renee Baggett Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 0038186

Aylstock, Witkin, Kreis & Overholtz 17 East Main Street, Suite 200 Pensacola, FL 32502 (850) 202-1010


12

By: /s/Mark C. Mueller Mark C. Mueller Plaintiffs’ Co-Lead Counsel [email protected] Texas Bar No. 14623000

Mueller Law 404 West 7th StreetAustin, TX 78701 (512) 478-1236

By: /s/Robert Salim Robert Salim Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 11663

Law Offices of Robert L. Salim 1901 Texas Street Natchitoches, LA 71457 (318) 352-5999

By: /s/Riley Burnett Riley Burnett Plaintiffs’ Co-Lead Counsel [email protected] Texas Bar No. 03428900

Law Offices of Riley L. Burnett, Jr. 440 Louisiana, Suite 1600 Houston, TX 77002 (713) 757-1400

By: /s/Benjamin H. Anderson Benjamin H. Anderson

Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 0067466

Anderson Law Offices, LLC 1360 West 9th Street, Suite 215 Cleveland, OH 44113 (216) 589-0256


13

By: /s/Martin D. Crump Martin D. Crump Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 10652

Davis & Crump 1712 15th Street, Suite 300 Gulfport, MS 39501 (228) 863-6000


EXHIBIT “A”

MDL 2327 ATTORNEY PARTICIPATION AGREEMENT

This Attorney Participation Agreement is made this day of ,

20 , by and between the Plaintiffs’ Steering Committee (“PSC”) appointed by the

United States District Court for the Southern District of West Virginia MDL Docket

No. 2327 and:

(hereinafter “Participating Counsel”).

WHEREAS, the PSC in association with other attorneys working for the common

benefit of plaintiffs (the “Eligible Counsel”) have developed or are in the process of developing

work product which will be valuable in the litigation of state and federal court proceedings

involving claims of mesh-related injuries (the “Common Benefit Work Product”); and

WHEREAS, the Participating Counsel are desirous of acquiring the Common

Benefit Work Product and establishing an amicable, working relationship with the PSC

for the mutual benefit of their clients;

NOW, THEREFORE, in consideration of the covenants and promises contained herein,

and intending to be legally bound hereby, the parties agree as follows:

1. This Agreement incorporates by reference any Order of the Court regarding

assessments and incorporates fully herein all defined terms from such Order(s).

2. This Agreement applies to each and every claim, case, or action arising from

the use of Mesh Products in which the Participating Counsel has a financial interest, whether

the claim, case, or action is currently filed in state or federal court, or is unfiled, or is on a

tolling agreement (hereinafter collectively the “Covered Claims”).


2

3. With respect to each and every Covered Claim, Participating Counsel understand

and agree that Defendant and its counsel will hold back a percentage proportion of the gross

recovery that is equal to five percent (5%) of the Gross Monetary Recovery (“the

Assessment”). Defendants or their counsel will deposit the Assessment in the MDL 2327

Common Benefit Fund (“the Fund”). Should Defendants or their counsel fail to hold back

the Assessment for any Covered Claim, Participating Counsel and their law firms shall deposit

or cause to be deposited the Assessment in the Fund. It is the intention of the parties that

absent extraordinary circumstances recognized by MDL 2327 Court Order, such Assessment

shall be in full and final satisfaction of any present or future obligation on the part of each

Plaintiff and/or Participating Counsel to contribute to any fund for the payment or

reimbursement of any legal fees, services or expenses incurred by, or due to, the PSC,

Participating Counsel, and/or any other counsel eligible to receive disbursements from the

Fund pursuant to an Order of the Court regarding assessments or the Fund.

4. The Participating Counsel, on behalf of themselves, their affiliated counsel,

and their clients, hereby grant and convey to the PSC a lien upon and/or a security interest in

any recovery by any client who they represent or in which they have a financial interest in

connection with any mesh-related injury, to the full extent permitted by law, in order to secure

payment of the Assessment. The Participating Counsel will undertake all actions and execute

all documents that are reasonably necessary to effectuate and/or perfect this lien and/or security

interest.

5. The amounts deposited in the MDL 2327 Fund shall be available for distribution

to Participating Counsel pursuant and subject to any Order of the Court regarding assessments

or the Fund. Participating Counsel may apply to the Court for common-benefit fees and


3

reimbursement of expenses, provided that Participating Counsel:

a. were called upon by the Co-Lead Counsel to assist them in performing their

responsibilities;

b. appointed by the Court as Co-liaison counsel to perform such services and

assist in the overall prosecution of the claims and administration of the

combined and coordinated efforts;

c. expended time and efforts for the common benefit either in MDL 2327 and

other state litigation; and

d. timely submitted such time and expenses in accordance with the Court’s

orders and the procedures established by the PSC.

6. This Agreement is without prejudice to the amount of fees or costs to which

Participating Counsel may be entitled to in such an event.

7. Upon request of the Participating Counsel, the PSC will provide within a

reasonable time to the Participating Counsel, to the extent developed, the Common Benefit

Work Product, including access to the PSC’s virtual depository, and, if and when developed a

complete trial package.

8. As the litigation progresses and Common Benefit Work Product continues to be

generated, the PSC will provide Participating Counsel with such work-product and will

otherwise cooperate with the Participating Counsel to coordinate the MDL litigation and the

state litigation for the benefit of the plaintiffs.

9. No assessments will be due by the Participating Counsel on any recoveries

resulting from a medical malpractice claims against treating physicians.

10. Both the PSC and the Participating Counsel recognize the importance of


4

individual cases and the relationship between case-specific clients and their attorneys. The

PSC recognizes and respects the value of the contingency fee agreement as essential in

providing counsel to those who could not otherwise avail themselves of adequate legal

representation, and it is the intent of the PSC to urge the Court to not interfere with any such

agreements so long as they comport with the applicable state bar rules and/or state court orders.

PLAINTIFFS’ STEERING COMMITTEE

By: _________________________________

PARTICIPATING ATTORNEYS By:


EXHIBIT D



CHARLESTON DIVISION

IN RE: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION MDL No. 2327

-------------------------------------------------


PRETRIAL ORDER # 211 (ORDER ESTABLISHING CRITERIA FOR APPLICATIONS TO MDL 2327 FUND TO

COMPENSATE AND REIMBURSE ATTORNEYS FOR SERVICES PERFORMED AND EXPENSES INCURRED FOR MDL ADMINISTRATION AND COMMON BENEFIT

AND APPOINTMENT OF COMMON BENEFIT FEE AND COST COMMITTEE)

These MDL proceedings have been ongoing for the past several years, and the Court finds

that it is the appropriate time to establish the process for reviewing and managing common benefit

fees and expenses. The Court is not, by entering this Order, implying that it will immediately

begin receiving applications for recovery of fees and expenses from counsel.1 That will be dealt

with in the future as set forth more fully herein. The Court will focus at the appropriate time, based

on recommendation from the committee appointed below, on final evaluation of common benefit

applications for any counsel who believe that they have legitimate common benefit time and

expenses. At this time, the Court is merely identifying a process and the committee who will carry

out the process of efficiently reviewing time and expenses and dealing with any ancillary issues or

requests that exist or come forth in the short term.

1 In the PTOs already entered by the court on the topic of common benefit attorneys’ fees and expenses, counsel who wish to receive common benefit attorneys’ fees and expenses have been referred to as “participating counsel” and “eligible counsel.” In this order, the court has referred to these individuals more generically as counsel, attorney or firm.


2

It is ORDERED that for time and expenses that have not been submitted to date, counsel

are granted 60 days from the date of this Order (1) to submit time and expenses that have not been

submitted but are legitimate time or expenses; and (2) to modify already submitted time and

expenses to amend or correct any prior submission which is deemed currently inappropriate for

consideration for reimbursement.

This Order is entered to set forth the process for the fair and equitable sharing among

plaintiffs’ counsel of the Common Benefit Fund established by Pretrial Order # 18. This Order is

simultaneously being entered in each of the seven MDLs assigned to the court. This Order

specifically incorporates by reference herein Pretrial Order # 18 (Agreed Order Regarding

Management of Timekeeping, Cost Reimbursement and Related Common Benefit Issues), Pretrial

Order # 62 (Agreed Order Establishing MDL 2327 Fund to Compensate and Reimburse Attorneys

for Services Performed and Expenses Incurred for MDL Administration and Common Benefit) (as

amended by Pretrial Order # 134), and Pretrial Order # 201 (Order Establishing Reporting on

Payment to the MDL 2327 Fund).

A. Appointment of Common Benefit Fee and Cost Committee

To facilitate an efficient and equitable process for the application and evaluation of all

requests for Common Benefit fees or expenses in all the transvaginal mesh MDLs, the Court

appoints a committee who is responsible for recommending to the Court the allocation of awards

of attorneys’ fees and costs to be made by the Court from the MDL 2327 Fund and any other

utilization of the funds. Pursuant to the Court’s inherent authority over this multidistrict litigation,

it is ORDERED that the following individuals are APPOINTED to serve on the Common Benefit

Fee and Cost Committee (“FCC”):


3

Henry G. Garrard, IIIBlasingame, Burch, Garrard & Ashley, PC 440 College Ave., Ste. 320 Athens, GA 30601 706-354-4000706-549-3545 (fax) [email protected]

Joseph F. Rice Motley Rice, LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 843-216-9000843-216-9450 (fax) [email protected]

Clayton A. Clark Clark, Love & Hutson, GP 440 Louisiana St., Ste. 1600 Houston, TX 77002 713-757-1400713-759-1217 (fax) [email protected]

Carl N. Frankovitch Frankovitch, Anetakis, Colantonio & Simon 337 Penco Road Weirton, WV 26062 304-723-4400304-723-5892 (fax) [email protected]

Yvonne FlahertyLockridge Grindal Nauen Suite 2200100 Washington Avenue South Minneapolis, MN 55401612-339-6900612-339-0981 (fax) [email protected]

Thomas P. Cartmell Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 816-701-1100


4

816-531-2372 (fax) [email protected]

Renee Baggett Aylstock Witkin Kreis & Overholtz Suite 20017 East Main StreetPensacola, FL 32502 850-202-1010805-916-7449 (fax) [email protected]

Riley L. Burnett, Jr. Burnett Law Firm 55 Waugh Drive, Suite 803 Houston, TX 77007832-413-4410832-900-2120 (fax)[email protected]

William H. McKee, Jr. 1804 Louden Heights RoadCharleston, WV 25314 [email protected]

The appointment to the FCC is of a personal nature. Accordingly, in the performance of

the FCC’s functions (such as committee meetings and court appearances), the above appointees

cannot allow others to substitute for them in fulfilling this role, including by any other member or

attorney of the appointee’s law firm, except with prior approval of the Court. The Court has

appointed William H. McKee, Jr. d/b/a WHM Resources LLC, to the FCC as a non-attorney

participant with no financial interest in the common benefit fund. The Court finds that the duties

of Mr. McKee, as a non-attorney participant, do not involve the provision of professional services

— legal, accounting, or otherwise. He will be compensated quarterly by the common benefit fund

for his service. Such compensation must be approved by the Court. Henry Garrard shall serve as

Chairperson of the FCC. The FCC is charged with engaging in confidential discussions as part of


5

the FCC’s function. Persons not specifically invited by a two-thirds vote of the FCC shall not

attend meetings of the FCC.

It shall be the responsibility of the FCC to make recommendations to the Court for

reimbursement of costs and apportionment of attorneys’ fees for common benefit work and any

other utilization of the funds.

B. Criteria for Common Benefit Applications

The Court, in considering any fee award, will give appropriate consideration to the

experience, talent, and contribution made by any eligible attorney or law firm submitting an

application for reimbursement of costs and apportionment of attorneys’ fees from the MDL 2327

Fund for work performed for common benefit. The Court will also give appropriate consideration

to “the time and effort expended” and the “type, necessity, and value of the particular legal services

rendered.” PTO # 62, § 4(b). In making its recommendations to the Court, the over-arching

guideline that the FCC must consider is the contribution of each common benefit attorney to the

outcome of the litigation. The FCC’s considerations should be governed and guided by the

following comprehensive statement of general principles:

1. The extent to which each firm made a substantial contribution to the outcome

of the litigation. A law firm may contribute to the outcome of the litigation at any stage of the

proceedings, including drafting master pleadings, common written discovery, liability depositions,

expert work, briefing, hearings, trials, settlement, and coordination and administration of MDL

2327. All contributions are not necessarily equal and the FCC shall appropriately weigh the

contributions.

2. The quality of each attorney or firm’s work. Attention shall be paid to the quality

of the work performed separate and apart from the length of time required to perform it. An


6

attorney or law firm providing common benefit should not be penalized for efficiency, nor should

inefficiency be incentivized. The FCC shall consider all work that was a benefit and may likewise

consider actions that were detrimental.

3. The consistency, quantum, duration, and intensity of each attorney or firm’s

commitment to the litigation. The level of commitment, from the inception of the MDL through

its resolution, demonstrated by a common benefit attorney or law firm shall be considered. The

touchstone of common benefit work is that it must inure to the benefit of the claimants as a whole.

Accordingly, emphasis should be placed on work product and materials that are provided to

counsel to prepare for trial. While the total number of hours spent toward appropriate common

benefit activities should be considered, the Court is primarily concerned with substantive

contributions and not simply the total number of hours. For example, hours spent developing

litigation strategies or preparing for and participating in trials generally provide greater common

benefit than hours spent reviewing and coding documents.

4. The level of experience, reputation, and status of each attorney and firm,

including partner participation by each firm. The extent and nature of participation by partner-

level attorneys provides some evidence of the level of commitment to the litigation by attorneys

seeking common benefit fees or expenses. Further, the participation and dedication by experienced

attorneys from a law firm would provide some evidence of commitment as well.

5. The jurisdiction in which non-MDL common benefit work occurred. Common

benefit work performed in state court litigation — whether the proceedings are consolidated or not

— should be considered to the extent it contributed to the outcome of the litigation and benefitted

the MDL. The Court recognizes, particularly to the extent there are agreements between state

court attorneys and MDL leadership, that state court attorneys may make an application for


7

common benefit fees and expenses to be fully considered by the FCC. In order for an attorney’s

work in state court litigation to be considered for payment from the Common Benefit Fund,

settlements from the requesting attorneys must include the five percent assessment provided for in

PTO # 62, as amended by PTO # 134. In addition, counsel must comply with the 60-day deadline

provided in the introductory paragraph of this Order.

6. Activities surrounding trials of individual claimants, including bellwether

trials, consolidated trials, cases transferred or remanded for trial, and non-MDL trials that

impacted proceedings on a common benefit level. The focus of this inquiry is the role played by

counsel at trial. Greater emphasis is placed on substantive contributions made by counsel or the

counsel’s team at a particular trial that provided a common benefit.

7. Membership and leadership in positions within the MDL. Membership and

leadership in positions on committees engaged in common benefit work should be considered.

8. Whether counsel made significant contributions to the funding of the litigation

and creation of the Common Benefit Fund. Contributions to the funding of the litigation include

counsel’s contributions to the MDL through Plaintiffs’ Steering Committee assessments and held

costs from expenses related to the common benefit of the litigation. The relationship of the

contributions to the amount of funds received pursuant to PTO # 62 (as amended by PTO # 134)

should be considered by the FCC.

9. Commitment to and efforts toward overall resolution of the litigation. The

MDL process brought cases from multiple federal jurisdictions to this Court. The Court placed

significant responsibility on certain counsel to actively participate in common resolution of cases

and that work and effort should be considered by the FCC.


8

10. Any other relevant factors. The FCC will be guided by governing fee

jurisprudence in determining the reasonableness of the allocation, including the factors enumerated

in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The Barber factors include (1)

the time and labor required; (2) the novelty and difficulty of the questions raised; (3) the skill

required to properly perform the legal services; (4) the attorney’s opportunity costs in pressing the

litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of

litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in

controversy and the results obtained; (9) the experience, reputation, and ability of the attorney;

(10) the “undesirability” of the case within the legal community in which the suit arose; (11) the

nature and length of the professional relationship between the attorney and client; and (12) the size

of the fee awards in similar cases. Id.

11. The FCC’s implementation of this Order and its recommendations to the Court

regarding allocation of common benefit fee awards and reimbursement of expenses should be

governed and guided by this comprehensive statement of general principles. The FCC is to

consider the relative common benefit contribution of each attorney to the outcome of the litigation,

including whether the attorney:

a. Made no known material common benefit contribution to the litigation;

b. Made isolated material common benefit contributions, but mostly “monitored” the material common benefit efforts of other firms and performed some document review;

c. Made periodic material common benefit contributions and/or mostly performed document review;

d. Made consistent material common benefit contributions from inception of the litigation;

e. Was a leader taking primary responsibility to accomplish the goals of the Plaintiffs’ Steering Committee and was heavily relied upon by the Executive Committee and


9

provided consistent material common benefit contributions, full-time at times, from inception of the litigation;

f. Was a senior leader taking primary responsibility to accomplish the goals of the Plaintiffs’ Steering Committee, organized others and/or led a team of common benefit attorneys, was heavily relied upon by the Executive Committee and provided consistent material common benefit contributions almost full-time for a substantial time during the litigation; or

g. Was a senior leader providing maximum senior leadership effort in terms of intensity, consistency, and duration relative to all other common benefit counsel, taking primary responsibility for entire litigation to accomplish the goals of the Plaintiffs’ Steering Committee, engaging in overall strategic planning since the inception of the litigation, organizing others and/or leading one or more teams of common benefit attorneys, providing consistent material common benefit contributions, virtually full-time for much of the litigation, and will likely continue to assume a key leadership role for several more years.

Other special considerations here include:

a. Counsel will not be compensated for work performed without prior authorization by Coordinating Co-Lead Counsel or the Co-Lead Counsel of MDL 2327.

b. Monitoring and review of work not related to ongoing common benefit assignments is not compensable.

c. Where work was performed by contract attorneys or professionals, counsel are required to disclose the salary/wage of such contract attorneys and that should be considered by the FCC.

In making its recommendations to the Court, the FCC shall exercise its discretion in

evaluating what work and expenses furthered the common benefit of the litigation. The above

guidelines provide direction, but do not create entitlements and do not override the independent

judgment and discretion of the FCC or the Court.

C. Common Benefit Application Process

It is the directive of the Court that the FCC begin meeting to discuss the process of

reviewing hours that are submitted as of March 15, 2016; determine an application process for

applying for fees and expenses; and determine the mechanics of applications and the contents of


10

the application. It is the directive of the Court that any application that is submitted to the FCC

shall be signed by a senior partner of the law firm attesting to its truth and accuracy. In setting out

this directive, the Court is not by this Order setting a time by which applications are to be received.

That timing will be determined by the Court in consultation with the FCC.

It is the responsibility of the FCC to conduct meetings, at the appropriate time, during

which any counsel who has submitted an application for common benefit compensation may, at

his or her discretion, separately appear and present the reasons, grounds, and explanation for their

entitlement to common benefit fees. Meetings shall be held at locations to be determined by the

FCC. The FCC may set a limitation on the time allocated for any presentation.

At the appropriate time, the FCC shall make recommendations of fee allocations and cost

reimbursements pertaining to all counsel applying for attorneys’ fees and costs. The FCC shall

provide to each attorney, notice of recommendations of the FCC as it pertains to that particular

attorney. In the event an attorney objects to the FCC’s recommendation, a written objection setting

forth with specificity the basis of the objection shall be submitted to the FCC within 14 days of

being informed of the recommendation. It is the intent of the Court that the FCC bring to the Court

a recommendation that has been well vetted and is agreed to by all involved to the fullest extent

possible.

After full consideration of objections by counsel, if any, the FCC shall submit the final

recommendation of fee allocation and cost reimbursement to the Court. At the appropriate time,

the Court will determine the process for consideration of any objections to the final

recommendation of fee allocation and cost reimbursement submitted to the Court by the FCC. The

Court retains jurisdiction and authority as to the final decisions and awards and allocations of

awards for common benefit fees and expenses.


11

The Court DIRECTS the Clerk to file a copy of this order in 2:12-md-2327 and it shall




provided by the Clerk to counsel appearing in each new action at the time of filing of the complaint.

In cases subsequently removed or transferred to this Court, a copy of the most recent pretrial order

will be provided by the Clerk to counsel appearing in each new action upon removal or transfer. It

shall be the responsibility of the parties to review and abide by all pretrial orders previously entered

by the Court. The orders may be accessed through the CM/ECF system or the Court’s website at

www.wvsd.uscourts.gov.

ENTER: January 15, 2016


EXHIBIT E



EXHIBIT F



CHARLESTON DIVISION


MDL No. 2327 ------------------------------------------------- THIS DOCUMENT RELATES TO ALL CASES EXCLUDING THOSE ETHICON CASES ASSIGNED TO CHIEF JUDGE CHAMBERS

PRETRIAL ORDER # 262

(ORDER RE: FEE COMMITTEE PROTOCOL)

Pursuant to Section C of the “Order Establishing Criteria for Applications to MDL Fund

To Compensate and Reimburse Attorneys for Services Performed and Expenses Incurred for MDL

Administration and Common Benefit and Appointment of Common Benefit Fee and Cost

Committee” (PTO # 211) (the “FCC Order”), a copy of which is attached hereto as Exhibit 1, the

Common Benefit Fee and Cost Committee (“FCC”) hereby outlines the process for review of

common benefit time submitted and the process for application for fees and expenses.

Any reference herein to “prior common benefit orders” refers, collectively, to the FCC

Order; the “Agreed Order Regarding Management of Timekeeping, Cost Reimbursement and

through December 21, 2016 Related Common Benefit Issues” (PTO # 18); and the “Agreed Order

Establishing MDL 2327 Fund to Compensate and Reimburse Attorneys for Services Performed

and Expenses Incurred for MDL Administration and Common Benefit” (PTO # 62). Copies of

those prior common benefit orders are attached hereto as Exhibit 1, Exhibit 2 and Exhibit 3,

respectively.


2

A. Initial Firm Review and Audit Process.

The Certified Public Accounting Firm of Smith, Cochran, Hicks, PLLC (the “CPA”) shall

document the time and expenses properly performed and expended through December 21, 2016 in

accordance with the Court’s prior orders relating to common benefit reimbursement. The CPA

shall send each attorney or Firm that has submitted time and expenses for common benefit

consideration (hereinafter, “Firm” or “Firms”), documentation showing the time and expenses

submitted by each such Firm.

Upon receipt of the time and expense documentation from the CPA, each Firm shall review

and audit same to ensure that it is true and accurate, properly coded and that it was for common

benefit. Firms may remove time and expenses during this review and audit process, but no

additional time or expense may be added. Firms shall have sixty (60) days from receipt of the

CPA’s time and expense documentation to remove any time or expense that is not common benefit,

complete the review process, and submit revised time and expenses. Time entries may need to be

clarified to provide sufficient detail to allow review. A format for submission of the verified time

and expense will be provided to all firms making submissions that enables the CPA to assist in

analysis of the data.

Upon such review and audit, a senior partner of each Firm shall provide the FCC with

revised time and expenses and an affidavit stating that the Firm has audited the time and expenses

and that the time and expenses (or revised time and expenses) were for common benefit. If time

has been submitted for work in an individual case, the Firm shall identify the case name, case

number, and court, and the Firm shall state whether the individual case was an MDL bellwether,

part of an MDL “wave” (identifying which wave in which MDL) or a state case. The status of the

case shall be included. The affiant shall also designate whether the party billing the time was a


3

full-time employee or a contract employee hired predominately or specifically for transvaginal

mesh (“TVM”) work. For each attorney billing time, there should be an individual biography not

exceeding two (2) pages that includes the complete work history from 2009 to the present. This

same Protocol is being filed in all pelvic mesh MDLs pending before this Court, but only one

submission per Firm shall be provided. The time and expenses should be broken down in the

submission by specific MDL.

B. Initial Review by FCC.

Following this initial Firm review and audit process, the FCC will conduct an initial review

of time and expense documentation relative to each Firm. Only such time and expenses that have

been performed and expended as of December 21, 2016 will be considered for purposes of this

initial review.

During this initial review process, the FCC will meet and confer confidentially, and no

person not specifically invited to attend these initial meetings shall attend. The FCC will conduct

its initial review applying the factors listed below (1-15), as well as those factors set forth in the

prior common benefit orders. This initial review process will include input from Co-Lead Counsel

in the specific MDL in which the common benefit work was performed, and in which common

benefit reimbursement is sought.

Based upon this initial review, the FCC will notify each Firm in writing of the total time

and expenses submitted by the Firm, and where appropriate, request a voluntary reduction by the

Firm of any time or expense deemed by the FCC not to be “for the joint and common benefit of

plaintiffs and claimants whose claims have been treated by this Court as part of these proceedings,”

including but not limited to, the following:


4

1. Any submission of professional time or expenses in which the hours of service or expense were not properly submitted or coded in accordance with prior common benefit orders.

2. Any submission of professional time or expenses that does not meet the definition of

authorized common benefit work under any prior common benefit order. 3. Any item of expense for which proper receipts or other proof of payment has not been

submitted in accordance with prior common benefit orders. 4. Any item of time or expense that was incurred in connection with the prosecution of an

individual case or group of individual cases asserting claims in this litigation, unless the case or cases were designated by the Court as bellwether or “wave” cases and Counsel were authorized by Co-Lead Counsel or Coordinating Co-Lead Counsel to perform such work primarily for the common benefit of the litigants in the MDL. The FCC will analyze both “wave” work and bellwether work. Bellwether work will be generally considered reimbursable as common benefit.

Case-specific work in cases will be analyzed to determine the extent to which it is deemed to have benefited the MDL plaintiffs. If case-specific work added nothing to the common benefit, it will not be considered reimbursable.

5. Any item of expense that does not meet the requirements of prior common benefit

orders. 6. Any item of time or expense that is not described in sufficient detail to determine the

nature and purpose of the service or expense involved. Examples: Reviewing email, general review of documents without explanation, reviewing court record, phone call with no explanation, review correspondence, internal administration.

7. Any item of professional time that was expended to “review” pleadings, emails,

correspondence and similar items, unless such “review time” was directly related to and reasonably necessary for the performance of that particular timekeeper’s approved assignments from Co-Lead Counsel.

8. Any submission of professional time in which the amount of “review” time is excessive

as a whole when judged in reference to the role of the timekeeper or which did not substantially benefit the claimants in MDL 2327.

9. Any submission of time and expense that is excessive on its face when considered as a

whole in light of the role(s) that the timekeeper(s) had in this litigation, which did not substantially benefit the claimants in MDL 2327.

10. Unnecessary and/or excessive items of time and expense for “monitoring” or review of

Electronic Court Filings (“ECF”) in this MDL.


5

11. Unnecessary and/or excessive items of time and expense for “monitoring” the MDL proceedings or related state court litigation by attending hearings, status conferences, or meetings where such attendance was not required by the Court or requested by Co-Lead Counsel or the Executive Committee.

12. Any item of time or expense not reasonably necessary and not part of a bona fide effort

to advance the interests of the claimants in MDL 2327. 13. Any time in which more than one timekeeper within one (1) Firm reviewed a single

document, email, deposition or pleading without a clear independent reason clearly explained by the Firm as to why review by more than one timekeeper was necessary and beneficial to the MDL plaintiffs generally.

14. Any time within one (1) Firm for the purpose of monitoring or reviewing the work of

a timekeeper for that Firm’s internal purposes. 15. Any time or expense related to preparing, amending, or correcting time and expense

reports for submission to the CPA pursuant to any prior common benefit order or this Order.

Only time and expenses that are accurate and solely related to approved and assigned

common benefit work shall be eligible for consideration of a Common Benefit Fee and Cost

Award. Firms shall include in their submissions only time or expenses authorized by a prior

common benefit order or this Protocol. The failure to submit accurate and reliable time and

expense records in compliance with the prior common benefit orders and this Protocol may result

in the denial in whole or part of a Common Benefit Fee and Cost Award.

The FCC recognizes that there was work done in state courts such as Missouri,

Massachusetts, Minnesota, Texas, New Jersey, Pennsylvania, California, and Delaware for which

common benefit reimbursement may be sought. For Firms who have agreed to make contributions

from settlement(s) of state court cases that have not been participants in the MDL, it is understood

that those Firms may not have complied with certain provisions of the prior common benefit

orders. Such non-compliance with those prior common benefit orders by those Firms will not


6

alone be a valid reason for rejection of state court work if such work is deemed to be for the benefit

of the MDL plaintiffs generally.

C. Final Time and Expense Submission by Firms.

As set forth in preceding paragraphs, the FCC will conduct an initial review of the time

and expenses and, where appropriate, request a voluntary reduction. While at this stage of the

process, Firms are not required to revise their fee and expense submissions, Firms are strongly

encouraged to assess their submissions in light of the FCC’s initial review. Firms shall have thirty

(30) days from receipt of the FCC’s initial review to submit any revised and final time and expense

submissions, if desired. Firms shall consolidate all revisions and corrections to fee and expense

submissions in a single document to the FCC. Under no circumstances may Firms add time to

their time records or add additional expenses.

This final time and expense submission must be accompanied by an Affidavit, to be signed

by a senior partner of the law firm attesting to its truth and accuracy. The final time and expense

submission and Affidavit are to be submitted by the end of the thirty (30) day period set forth

above for review and reconciliation based on the FCC’s initial review. This Affidavit,

accompanying the final time and expense submission shall be limited to fifteen (15) pages if time

submitted is less than 20,000 hours and twenty (20) pages if 20,000 or more, and shall set forth

the reasons, grounds and explanation for the Firm’s entitlement to common benefit fees. In

preparing such Affidavit, the factors outlined in Section B of the FCC Order should be considered

and addressed. The form of the Affidavit to accompany the submission is attached hereto as

Exhibit 4.

As stated in Paragraph B of the FCC Order, the criteria that the final time and expense

submission should address and that will guide the FCC in analyzing any submission are as follows:


7

The FCC, in considering any fee award, will give appropriate consideration to the experience, talent, and contribution made by any eligible attorney or law firm submitting an application for reimbursement of costs and apportionment of attorneys’ fees from the MDL 2327 Fund for work performed for common benefit. The FCC will also give appropriate consideration to “the time and effort expended” and the “type, necessity, and value of the particular legal services rendered.” In making its recommendations to the Court, the over-arching guideline that the FCC will consider is the contribution of each common benefit attorney to the outcome of the litigation. The FCC’s considerations will be governed and guided by the following comprehensive statement of general principles: 1. The extent to which each Firm made a substantial contribution to the outcome of the litigation. A law firm may contribute to the outcome of the litigation at any stage of the proceedings, including drafting master pleadings, common written discovery, liability depositions, expert work, briefing, hearings, trials, settlement, and coordination and administration of MDL 2327. All contributions are not necessarily equal and the FCC shall appropriately weigh the contributions. 2. The quality of each attorney or Firm’s work. Attention shall be paid to the quality of the work performed separate and apart from the length of time required to perform it. An attorney or law firm providing common benefit should not be penalized for efficiency, nor should inefficiency be incentivized. The FCC shall consider all work that was a benefit and may likewise consider actions that were detrimental. 3. The consistency, quantum, duration, and intensity of each attorney or Firm’s commitment to the litigation. The level of commitment, from the inception of the MDL through its resolution, demonstrated by a common benefit attorney or law firm shall be considered. The touchstone of common benefit work is that it must inure to the benefit of the claimants as a whole. Accordingly, emphasis should be placed on work product and materials that are provided to counsel to prepare for trial. While the total number of hours spent toward appropriate common benefit activities should be considered, the Court is primarily concerned with substantive contributions and not simply the total number of hours. For example, hours spent developing litigation strategies or preparing for and participating in trials generally provide greater common benefit than hours spent reviewing and coding documents. The Committee recognizes that certain work may have benefited more than one MDL and will evaluate work done to determine the common benefit, if any, to more than one MDL. The Committee recognizes that expert work and briefing may benefit more than one MDL. 4. The level of experience, reputation, and status of each attorney and Firm, including partner participation by each Firm. The extent and nature of participation by partner level attorneys provides some evidence of the level of commitment to the litigation by attorneys seeking common benefit fees or expenses. Further, the participation and dedication by experienced attorneys from a law firm would provide some evidence of commitment as well. 5. The jurisdiction in which non-MDL common benefit work occurred. Common


8

benefit work performed in state court litigation — whether the proceedings are consolidated or not — will be considered to the extent it contributed to the outcome of the litigation and benefitted the MDL. 6. Activities surrounding trials of individual claimants, including bellwether trials, consolidated trials, cases transferred or remanded for trial, and non-MDL trials that impacted proceedings on a common benefit level. The focus of this inquiry is the role played by counsel at trial. Greater emphasis is placed on substantive contributions made by counsel or the counsel’s team at a particular trial that provided a common benefit. Each Firm requesting common benefit reimbursement for any individual case shall provide an explanation in their affidavit of why the Firm believes such work should be considered as common benefit. For example, whether and how such work benefited the MDL plaintiffs generally; the status of settlements in the particular MDL in which the work was performed at the time such work was performed, and whether the case-specific work assisted in bringing about settlements with the defendant in that MDL. Each Firm requesting common benefit reimbursement for work done in any state court case shall provide an explanation in their affidavit of why the Firm believes such work should be considered as common benefit. 7. Membership and leadership in positions within the MDL. Membership and leadership in positions on committees engaged in common benefit work should be considered. 8. Whether counsel made significant contributions to the funding of the litigation and creation of the Common Benefit Fund. Contributions to the funding of the litigation include counsel’s contributions to the MDL through Plaintiffs’ Steering Committee assessments and held costs from expenses related to the common benefit of the litigation. The relationship of the contributions to the amount of funds received should be considered by the FCC.

9. Commitment to and efforts toward overall resolution of the litigation. The MDL process brought cases from multiple federal jurisdictions to this Court. The Court placed significant responsibility on certain counsel to actively participate in common resolution of cases and that work and effort should be considered by the FCC. 10. Any other relevant factors. The FCC will be guided by governing fee jurisprudence in determining the reasonableness of the allocation, including the factors enumerated in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The Barber factors include (1) the time and labor required; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services; (4) the attorney’s opportunity costs in pressing the litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience,


9

reputation, and ability of the attorney; (10) the “undesirability” of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between the attorney and client; and (12) the size of the fee awards in similar cases. Id.

Each Firm shall address these factors, as applicable to their work for which common benefit

reimbursement is sought, in their written submission.

D. Opportunity to be heard by the FCC.

After receipt of the final time and expense submission and the Affidavit, the FCC will

provide every Firm with notice and an opportunity to be heard regarding the Firm’s entitlement to

common benefit fees. Firms may at their discretion and on their own volition separately appear

and present the reasons, grounds and explanation for their entitlement to common benefit fees and

reimbursement of expenses. Meetings for Firms will be held on dates and times to be set by the

FCC and at locations selected by the FCC. Each Firm will have adequate time for any presentation

to the FCC. The Firm representative should be prepared to respond to any questions or concerns

raised by the FCC during their presentation. A Special Master or other external review specialist

may be appointed by the Court to assist the FCC and be present during any presentation. Each

presentation shall be conducted in the presence of a court reporter. The transcript will be for the

Court’s utilization as necessary and directed by the Court.

The FCC may request that any Firm or party billing time appear separately before the FCC,

or a three-member panel of the Committee, at a time, date, and location to be determined by the

FCC, to answer questions or concerns addressing the reasons, grounds and explanations for that

Firm’s entitlement to common benefit fees and reimbursement of expenses. Each requested

appearance shall be conducted in the presence of a court reporter and any Special Master or other

external review specialist, if appointed by the Court. The transcript will be for the Special Master’s

or external review specialist’s, if any, or the Court’s utilization as necessary.


10

E. FCC’s Preliminary Written Recommendation and Opportunity to Object.

Upon review of each Firm’s final time and expense submission, including the required

Affidavit, and after notice and opportunity to be heard, the FCC will issue its preliminary written

recommendation for allocation of fees and expenses. This preliminary written recommendation

will include an explanation of every Firm’s time and expenses allowed by the FCC, and the basis

for each Firm’s allocation. This preliminary written recommendation will be made in accordance

with the factors outlined in Section B of the FCC Order. In making its preliminary written

recommendation, the FCC shall exercise its discretion, as previously ordered by the Court, in

evaluating what work and expenses furthered the common benefit of the litigation. The guidelines

set forth herein or previously in the FCC Order or any other related order provide direction, but do

not create entitlements and do not override the independent judgment and discretion of the FCC.

A copy of the FCC’s preliminary written recommendation will be distributed to every Firm.

Upon communication of the FCC’s preliminary written recommendation, each Firm will

have the opportunity to submit written objections of no more than ten (10) pages setting forth the

basis for the objection. Such written objections must be received by the FCC within fourteen (14)

days of the objecting Firm’s receipt of the preliminary written recommendation.

F. FCC’s Final Written Recommendation, Objections and Review.

Upon consideration of all objections, the FCC will distribute its final written

recommendation to every Firm and to the Special Master or other external review specialist, if

any, to be appointed by the Court.

The Special Master or other external review specialist, if any, will consider any objections

to the FCC’s final written recommendation. Objections shall be made in writing to the Special

Master or other external review specialist, if any, shall be limited to ten (10) pages, and shall be


11

submitted within fourteen (14) days of the objecting Firm’s receipt of the FCC’s final written

recommendation.

The Special Master or other external review specialist, if any, shall take into consideration

the FCC’s final written recommendation, and any objections thereto, and based thereon, shall issue

the Special Master’s or other external review specialist’s, if any, recommended allocation to the

Court for its consideration.

Upon receipt of the Special Master’s or other external review specialist’s, if any,

recommended allocation, the Court will determine the process for consideration of any objections

to the Special Master’s or external review specialist’s recommended allocation.






In cases subsequently removed or transferred to this court, a copy of the most recent pretrial order

will be provided by the Clerk to counsel appearing in each new action upon removal or transfer.

It shall be the responsibility of the parties to review and abide by all pretrial orders previously

entered by the court. The orders may be accessed through the CM/ECF system or the court’s


ENTER: June 23, 2017



CHARLESTON DIVISION

IN RE: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION MDL No. 2327

-------------------------------------------------


PRETRIAL ORDER # 211 (ORDER ESTABLISHING CRITERIA FOR APPLICATIONS TO MDL 2327 FUND TO

COMPENSATE AND REIMBURSE ATTORNEYS FOR SERVICES PERFORMED AND EXPENSES INCURRED FOR MDL ADMINISTRATION AND COMMON BENEFIT

AND APPOINTMENT OF COMMON BENEFIT FEE AND COST COMMITTEE)

These MDL proceedings have been ongoing for the past several years, and the Court finds

that it is the appropriate time to establish the process for reviewing and managing common benefit

fees and expenses. The Court is not, by entering this Order, implying that it will immediately

begin receiving applications for recovery of fees and expenses from counsel.1 That will be dealt

with in the future as set forth more fully herein. The Court will focus at the appropriate time, based

on recommendation from the committee appointed below, on final evaluation of common benefit

applications for any counsel who believe that they have legitimate common benefit time and

expenses. At this time, the Court is merely identifying a process and the committee who will carry

out the process of efficiently reviewing time and expenses and dealing with any ancillary issues or

requests that exist or come forth in the short term.

1 In the PTOs already entered by the court on the topic of common benefit attorneys’ fees and expenses, counsel who wish to receive common benefit attorneys’ fees and expenses have been referred to as “participating counsel” and “eligible counsel.” In this order, the court has referred to these individuals more generically as counsel, attorney or firm.


2

It is ORDERED that for time and expenses that have not been submitted to date, counsel

are granted 60 days from the date of this Order (1) to submit time and expenses that have not been

submitted but are legitimate time or expenses; and (2) to modify already submitted time and

expenses to amend or correct any prior submission which is deemed currently inappropriate for

consideration for reimbursement.

This Order is entered to set forth the process for the fair and equitable sharing among

plaintiffs’ counsel of the Common Benefit Fund established by Pretrial Order # 18. This Order is

simultaneously being entered in each of the seven MDLs assigned to the court. This Order

specifically incorporates by reference herein Pretrial Order # 18 (Agreed Order Regarding

Management of Timekeeping, Cost Reimbursement and Related Common Benefit Issues), Pretrial

Order # 62 (Agreed Order Establishing MDL 2327 Fund to Compensate and Reimburse Attorneys

for Services Performed and Expenses Incurred for MDL Administration and Common Benefit) (as

amended by Pretrial Order # 134), and Pretrial Order # 201 (Order Establishing Reporting on

Payment to the MDL 2327 Fund).

A. Appointment of Common Benefit Fee and Cost Committee

To facilitate an efficient and equitable process for the application and evaluation of all

requests for Common Benefit fees or expenses in all the transvaginal mesh MDLs, the Court

appoints a committee who is responsible for recommending to the Court the allocation of awards

of attorneys’ fees and costs to be made by the Court from the MDL 2327 Fund and any other

utilization of the funds. Pursuant to the Court’s inherent authority over this multidistrict litigation,

it is ORDERED that the following individuals are APPOINTED to serve on the Common Benefit

Fee and Cost Committee (“FCC”):


3

Henry G. Garrard, IIIBlasingame, Burch, Garrard & Ashley, PC 440 College Ave., Ste. 320 Athens, GA 30601 706-354-4000706-549-3545 (fax) [email protected]

Joseph F. Rice Motley Rice, LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 843-216-9000843-216-9450 (fax) [email protected]

Clayton A. Clark Clark, Love & Hutson, GP 440 Louisiana St., Ste. 1600 Houston, TX 77002 713-757-1400713-759-1217 (fax) [email protected]

Carl N. Frankovitch Frankovitch, Anetakis, Colantonio & Simon 337 Penco Road Weirton, WV 26062 304-723-4400304-723-5892 (fax) [email protected]

Yvonne FlahertyLockridge Grindal Nauen Suite 2200100 Washington Avenue South Minneapolis, MN 55401612-339-6900612-339-0981 (fax) [email protected]

Thomas P. Cartmell Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 816-701-1100


4

816-531-2372 (fax) [email protected]

Renee Baggett Aylstock Witkin Kreis & Overholtz Suite 20017 East Main StreetPensacola, FL 32502 850-202-1010805-916-7449 (fax) [email protected]

Riley L. Burnett, Jr. Burnett Law Firm 55 Waugh Drive, Suite 803 Houston, TX 77007832-413-4410832-900-2120 (fax)[email protected]

William H. McKee, Jr. 1804 Louden Heights RoadCharleston, WV 25314 [email protected]

The appointment to the FCC is of a personal nature. Accordingly, in the performance of

the FCC’s functions (such as committee meetings and court appearances), the above appointees

cannot allow others to substitute for them in fulfilling this role, including by any other member or

attorney of the appointee’s law firm, except with prior approval of the Court. The Court has

appointed William H. McKee, Jr. d/b/a WHM Resources LLC, to the FCC as a non-attorney

participant with no financial interest in the common benefit fund. The Court finds that the duties

of Mr. McKee, as a non-attorney participant, do not involve the provision of professional services

— legal, accounting, or otherwise. He will be compensated quarterly by the common benefit fund

for his service. Such compensation must be approved by the Court. Henry Garrard shall serve as

Chairperson of the FCC. The FCC is charged with engaging in confidential discussions as part of


5

the FCC’s function. Persons not specifically invited by a two-thirds vote of the FCC shall not

attend meetings of the FCC.

It shall be the responsibility of the FCC to make recommendations to the Court for

reimbursement of costs and apportionment of attorneys’ fees for common benefit work and any

other utilization of the funds.

B. Criteria for Common Benefit Applications

The Court, in considering any fee award, will give appropriate consideration to the

experience, talent, and contribution made by any eligible attorney or law firm submitting an

application for reimbursement of costs and apportionment of attorneys’ fees from the MDL 2327

Fund for work performed for common benefit. The Court will also give appropriate consideration

to “the time and effort expended” and the “type, necessity, and value of the particular legal services

rendered.” PTO # 62, § 4(b). In making its recommendations to the Court, the over-arching

guideline that the FCC must consider is the contribution of each common benefit attorney to the

outcome of the litigation. The FCC’s considerations should be governed and guided by the

following comprehensive statement of general principles:

1. The extent to which each firm made a substantial contribution to the outcome

of the litigation. A law firm may contribute to the outcome of the litigation at any stage of the

proceedings, including drafting master pleadings, common written discovery, liability depositions,

expert work, briefing, hearings, trials, settlement, and coordination and administration of MDL

2327. All contributions are not necessarily equal and the FCC shall appropriately weigh the

contributions.

2. The quality of each attorney or firm’s work. Attention shall be paid to the quality

of the work performed separate and apart from the length of time required to perform it. An


6

attorney or law firm providing common benefit should not be penalized for efficiency, nor should

inefficiency be incentivized. The FCC shall consider all work that was a benefit and may likewise

consider actions that were detrimental.

3. The consistency, quantum, duration, and intensity of each attorney or firm’s

commitment to the litigation. The level of commitment, from the inception of the MDL through

its resolution, demonstrated by a common benefit attorney or law firm shall be considered. The

touchstone of common benefit work is that it must inure to the benefit of the claimants as a whole.

Accordingly, emphasis should be placed on work product and materials that are provided to

counsel to prepare for trial. While the total number of hours spent toward appropriate common

benefit activities should be considered, the Court is primarily concerned with substantive

contributions and not simply the total number of hours. For example, hours spent developing

litigation strategies or preparing for and participating in trials generally provide greater common

benefit than hours spent reviewing and coding documents.

4. The level of experience, reputation, and status of each attorney and firm,

including partner participation by each firm. The extent and nature of participation by partner-

level attorneys provides some evidence of the level of commitment to the litigation by attorneys

seeking common benefit fees or expenses. Further, the participation and dedication by experienced

attorneys from a law firm would provide some evidence of commitment as well.

5. The jurisdiction in which non-MDL common benefit work occurred. Common

benefit work performed in state court litigation — whether the proceedings are consolidated or not

— should be considered to the extent it contributed to the outcome of the litigation and benefitted

the MDL. The Court recognizes, particularly to the extent there are agreements between state

court attorneys and MDL leadership, that state court attorneys may make an application for


7

common benefit fees and expenses to be fully considered by the FCC. In order for an attorney’s

work in state court litigation to be considered for payment from the Common Benefit Fund,

settlements from the requesting attorneys must include the five percent assessment provided for in

PTO # 62, as amended by PTO # 134. In addition, counsel must comply with the 60-day deadline

provided in the introductory paragraph of this Order.

6. Activities surrounding trials of individual claimants, including bellwether

trials, consolidated trials, cases transferred or remanded for trial, and non-MDL trials that

impacted proceedings on a common benefit level. The focus of this inquiry is the role played by

counsel at trial. Greater emphasis is placed on substantive contributions made by counsel or the

counsel’s team at a particular trial that provided a common benefit.

7. Membership and leadership in positions within the MDL. Membership and

leadership in positions on committees engaged in common benefit work should be considered.

8. Whether counsel made significant contributions to the funding of the litigation

and creation of the Common Benefit Fund. Contributions to the funding of the litigation include

counsel’s contributions to the MDL through Plaintiffs’ Steering Committee assessments and held

costs from expenses related to the common benefit of the litigation. The relationship of the

contributions to the amount of funds received pursuant to PTO # 62 (as amended by PTO # 134)

should be considered by the FCC.

9. Commitment to and efforts toward overall resolution of the litigation. The

MDL process brought cases from multiple federal jurisdictions to this Court. The Court placed

significant responsibility on certain counsel to actively participate in common resolution of cases

and that work and effort should be considered by the FCC.


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10. Any other relevant factors. The FCC will be guided by governing fee

jurisprudence in determining the reasonableness of the allocation, including the factors enumerated

in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The Barber factors include (1)

the time and labor required; (2) the novelty and difficulty of the questions raised; (3) the skill

required to properly perform the legal services; (4) the attorney’s opportunity costs in pressing the

litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of

litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in

controversy and the results obtained; (9) the experience, reputation, and ability of the attorney;

(10) the “undesirability” of the case within the legal community in which the suit arose; (11) the

nature and length of the professional relationship between the attorney and client; and (12) the size

of the fee awards in similar cases. Id.

11. The FCC’s implementation of this Order and its recommendations to the Court

regarding allocation of common benefit fee awards and reimbursement of expenses should be

governed and guided by this comprehensive statement of general principles. The FCC is to

consider the relative common benefit contribution of each attorney to the outcome of the litigation,

including whether the attorney:

a. Made no known material common benefit contribution to the litigation;

b. Made isolated material common benefit contributions, but mostly “monitored” the material common benefit efforts of other firms and performed some document review;

c. Made periodic material common benefit contributions and/or mostly performed document review;

d. Made consistent material common benefit contributions from inception of the litigation;

e. Was a leader taking primary responsibility to accomplish the goals of the Plaintiffs’ Steering Committee and was heavily relied upon by the Executive Committee and


9

provided consistent material common benefit contributions, full-time at times, from inception of the litigation;

f. Was a senior leader taking primary responsibility to accomplish the goals of the Plaintiffs’ Steering Committee, organized others and/or led a team of common benefit attorneys, was heavily relied upon by the Executive Committee and provided consistent material common benefit contributions almost full-time for a substantial time during the litigation; or

g. Was a senior leader providing maximum senior leadership effort in terms of intensity, consistency, and duration relative to all other common benefit counsel, taking primary responsibility for entire litigation to accomplish the goals of the Plaintiffs’ Steering Committee, engaging in overall strategic planning since the inception of the litigation, organizing others and/or leading one or more teams of common benefit attorneys, providing consistent material common benefit contributions, virtually full-time for much of the litigation, and will likely continue to assume a key leadership role for several more years.

Other special considerations here include:

a. Counsel will not be compensated for work performed without prior authorization by Coordinating Co-Lead Counsel or the Co-Lead Counsel of MDL 2327.

b. Monitoring and review of work not related to ongoing common benefit assignments is not compensable.

c. Where work was performed by contract attorneys or professionals, counsel are required to disclose the salary/wage of such contract attorneys and that should be considered by the FCC.

In making its recommendations to the Court, the FCC shall exercise its discretion in

evaluating what work and expenses furthered the common benefit of the litigation. The above

guidelines provide direction, but do not create entitlements and do not override the independent

judgment and discretion of the FCC or the Court.

C. Common Benefit Application Process

It is the directive of the Court that the FCC begin meeting to discuss the process of

reviewing hours that are submitted as of March 15, 2016; determine an application process for

applying for fees and expenses; and determine the mechanics of applications and the contents of


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the application. It is the directive of the Court that any application that is submitted to the FCC

shall be signed by a senior partner of the law firm attesting to its truth and accuracy. In setting out

this directive, the Court is not by this Order setting a time by which applications are to be received.

That timing will be determined by the Court in consultation with the FCC.

It is the responsibility of the FCC to conduct meetings, at the appropriate time, during

which any counsel who has submitted an application for common benefit compensation may, at

his or her discretion, separately appear and present the reasons, grounds, and explanation for their

entitlement to common benefit fees. Meetings shall be held at locations to be determined by the

FCC. The FCC may set a limitation on the time allocated for any presentation.

At the appropriate time, the FCC shall make recommendations of fee allocations and cost

reimbursements pertaining to all counsel applying for attorneys’ fees and costs. The FCC shall

provide to each attorney, notice of recommendations of the FCC as it pertains to that particular

attorney. In the event an attorney objects to the FCC’s recommendation, a written objection setting

forth with specificity the basis of the objection shall be submitted to the FCC within 14 days of

being informed of the recommendation. It is the intent of the Court that the FCC bring to the Court

a recommendation that has been well vetted and is agreed to by all involved to the fullest extent

possible.

After full consideration of objections by counsel, if any, the FCC shall submit the final

recommendation of fee allocation and cost reimbursement to the Court. At the appropriate time,

the Court will determine the process for consideration of any objections to the final

recommendation of fee allocation and cost reimbursement submitted to the Court by the FCC. The

Court retains jurisdiction and authority as to the final decisions and awards and allocations of

awards for common benefit fees and expenses.


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The Court DIRECTS the Clerk to file a copy of this order in 2:12-md-2327 and it shall





In cases subsequently removed or transferred to this Court, a copy of the most recent pretrial order

will be provided by the Clerk to counsel appearing in each new action upon removal or transfer. It

shall be the responsibility of the parties to review and abide by all pretrial orders previously entered

by the Court. The orders may be accessed through the CM/ECF system or the Court’s website at

www.wvsd.uscourts.gov.

ENTER: January 15, 2016



CHARLESTON DIVISION

IN RE: ETHICON, INC. PELVIC REPAIR SYSTEMS MDL NO. 2327 PRODUCTS LIABILITY LITIGATION

---------------------------------------------------------THIS DOCUMENT RELATES TO ALL CASES

PRETRIAL ORDER # 18 (Agreed Order Regarding Management of Timekeeping, Cost Reimbursement

and Related Common Benefit Issues)

The parties have submitted this Agreed Order to the court in anticipation of the

possibility that, at some time in the future, there may be applications to this court by

attorneys for payment of common benefit fees or expenses. The court now issues the

following preliminary procedures and guidelines at this early juncture in the case, but

expresses no opinion regarding whether payment of common benefit fees or expenses

will ever become appropriate. This Agreed Order merely provides guidance so that,

should the issue become ripe, any attorneys applying for common benefit fees or

expenses will have notice of the standards the parties have agreed will be employed in

assessing those applications. These guidelines are not meant to be exhaustive, and the

court may issue additional procedures, limitations, and guidelines in the future, if

appropriate.

1. Appointment of CPA

The forms and records detailing both time and expenses shall be subject to

periodic review by Chuck Smith, CPA, who is hereby appointed upon recommendation

of the Plaintiffs’ Executive Committee and Co-Liaison Counsel to perform such services


2

as set forth in this Order and to otherwise make such periodic and discreet reports to the

court as requested and to the Executive Committee and Co-Liaison. Said CPA shall be

paid from the common benefit funds and shall work with the Executive Committee and

Co-Liaison Counsel to insure the accuracy of the submissions and all accounts and

records.

2. Common Benefit Fund for Expenses

From time to time, the Executive Committee shall make such assessments and

shall receive and hold such funds as necessary to effectively prosecute the interests of the

litigation. Such funds shall be held in such accounts at a federally insured Banking

institution as designated and approved between Co-Liaison Counsel, Coordinating Co-

Leads and the CPA. The account shall be maintained by the PSC with primary oversight

of Coordinating Co-Lead and Co-Liaison Counsel and shall be subject to periodic review

by the CPA. Any funds to be paid out of such account shall be paid only upon the

direction of the Coordinating Co-Lead Counsel. The PSC shall apply for and receive a

Federal Tax ID number for such account.

3. Administration

For PSC counsel appointed by the court or acting under the direction of the

leadership of the PSC, the recovery of common benefit time and cost reimbursements

will be allowed and is essential. This will be for “participating counsel” as defined

herein. Furthermore, participating counsel shall only be eligible to receive common

benefit attorneys’ fees and cost reimbursement if the time expended, costs incurred and

activity in question were (a) for the common benefit, (b) appropriately authorized (as

defined herein specifically in section 3), (c) timely submitted, and (d) approved by this


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court. This Order sets forth the guidelines regarding the submission and compensability

of common benefit time and expenses. Plaintiffs’ counsel who seek to recover court-

awarded common benefit attorneys’ fees and expenses in connection with this litigation

shall keep a daily contemporaneous record of their time and expenses, noting with

specificity the amount of time and particular activity along with confirmation that

authority was obtained to have undertaken that common benefit effort. For the purpose

of coordinating these guidelines and tracking submissions, the Co-Liaison Counsel,

together with the Coordinating Co-Lead Counsel and Executive Committee, shall employ

a Certified Public Accountant appointed by the court. The CPA will insure proper

compliance by the parties with this Order and work with the Coordinating Co-Leads to

manage the litigation fund and administer the payment of the expenses (not fees) from the

litigation fund. All counsel working on common benefit activities shall submit a separate

report of their time and expense records every six weeks (such reports shall be submitted

within 20 days of the due date as prescribed in Time and Expense Reports approved by

the CPA, by email, as follows:

American Medical Systems MDL


AMS Lead Counsel: Fidelma Fitzpatrick at [email protected] Amy Eskin at [email protected]



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Boston Scientific MDL


Boston Scientific Lead Counsel: Clayton Clark at [email protected] Aimee Wagstaff at [email protected]



C.R. Bard MDL


C.R. Bard Lead Counsel: Henry Garrard at [email protected] Derek Potts at [email protected]



Coloplast MDL



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Coloplast Lead Counsel: Mark Mueller at [email protected] Robert Salim at [email protected] Riley Burnett at [email protected]



Ethicon MDL


Ethicon Lead Counsel: Thomas Cartmell at [email protected] Renee Baggett at [email protected]



The failure to secure authority to incur common benefit time and expenses, or

maintain and timely provide such records or to provide a sufficient description of the

activity will be grounds for denying the recovery of attorneys’ fees or expenses in whole

or in part.

“Participating Counsel” are counsel who subsequently desire to be considered for

common benefit compensation and as a condition thereof agree to the terms and

conditions herein and acknowledge that the court will have final, non-appealable


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authority regarding the award of fees, the allocation of those fees and awards for cost

reimbursements in this matter. Participating Counsel have (or will have) agreed to and

therefore will be bound by the court’s determination on common benefit attorney fee

awards, attorney fee allocations, and expense awards, and the Participating Counsel

knowingly and expressly waive any right to appeal those decisions or the ability to assert

the lack of enforceability of this Agreed Order or to otherwise challenge its adequacy.

Nothing in this Agreed Order shall be construed to prohibit an agreement between the

PSC and state court litigants who may later seek a common benefit allocation.

A. Expense Limitations

1. Travel Limitations

Only reasonable expenses will be reimbursed. Except in extraordinary

circumstances approved by the Coordinating Co-Lead Counsel, all travel reimbursements

are subject to the following limitations:

a. Airfare. Reasonable and appropriate airfare will be reimbursed and is subject to audit and review. Airfare deemed to be excessive or which is not related to an assigned task or judicial requirement will not be reimbursed.

b. Hotel. Reasonable and appropriate hotel accommodations will be reimbursed. Hotel accommodations deemed to be excessive or which are not related to an assigned task or judicial requirement will not be reimbursed.

c. Meals. Meal expenses must be reasonable.

d. Cash Expenses. Miscellaneous cash expenses for which receipts generally are not available (tips, luggage handling, pay telephone, etc.) will be reimbursed up to $30.00 per trip, as long as the expenses are properly itemized.

e. Rental Automobiles. Luxury automobile rentals will not be fully reimbursed, unless only luxury automobiles were available. If luxury automobiles are selected when non-luxury vehicles are


7

available, then the difference between the luxury and non-luxury vehicle rates must be shown on the travel reimbursement form, and only the non-luxury rate may be claimed, unless such larger sized vehicle is needed to accommodate several counsel or materials necessary to be transported to a deposition or trial.

f. Mileage. Mileage claims must be documented by stating origination point, destination, total actual miles for each trip, and the rate per mile paid by the member’s firm. The maximum allowable rate will be the maximum rate allowed by the IRS.

2. Non-Travel Limitations

a. Long Distance, Conference Call and Cellular Telephone Charges. Common benefit long distance, conference call and cellular telephone charges must be documented as individual call expenses in order to be compensable. Copies of the telephone bills must be submitted with notations as to which charges relate to the MDL litigation. Such charges are to be reported at actual cost.

b. Shipping, Overnight, Courier, and Delivery Charges. All claimed common benefit shipping, overnight, courier or delivery expenses must be documented with bills showing the sender, origin of the package, recipient, and destination of the package. Such charges are to be reported at actual cost.

c. Postage Charges. A contemporaneous postage log or other supporting documentation must be maintained and submitted for common benefit postage charges. Such charges are to be reported at actual cost.

d. Telefax Charges. Contemporaneous records should be maintained and submitted showing faxes sent and received for common benefit matters. The per-fax charge shall not exceed $1.00 per page.

e. In-House Photocopy. A contemporaneous photocopy log or other supporting documentation must be maintained and submitted. The maximum copy charge is .20¢ per page.

f. Computerized Research – Lexis/Westlaw. Claims for Lexis or Westlaw, and other computerized legal research expenses should


8

be in the exact amount charged the firm and appropriately allocated for these research services.

B. Verification

The forms detailing expenses shall be certified by a member of the PSC in each

firm attesting to the accuracy of the submissions. For those firms submitting time who are

not a member of the PSC, the forms shall be signed by a senior partner in that firm.

Attorneys shall keep receipts for all expenses. Credit card receipts are an appropriate

form of verification so long as accompanied by a declaration from counsel that work was

performed and paid for the common benefit.

C. Authorization for Compensable Common Benefit Work

Authorized Common Benefit Work includes assignments made by Coordinating

Co-lead Counsel and/or the Co-Lead Counsel of each MDL, who will work in

consultation with each other to facilitate the litigation. No time spent on developing or

processing purely individual issues in any case for an individual client (claimant) will be

considered or should be submitted, nor will time spent on any unauthorized work.

D. Common Benefit Work

1. Examples of authorized and unauthorized common benefit work include

but are not limited to:

a. Depositions: Participating Counsel may attend any deposition space permitting; however, if such counsel has not been designated as one of the authorized questioners or otherwise authorized to attend the deposition by Coordinating Co-Lead Counsel or a Co-Lead of an individual MDL, the time and expenses shall not be considered common benefit work, but rather considered as attending on behalf of such counsel’s individual clients.

b. Periodic MDL Conference Calls: These calls are held so that individual attorneys are kept up-to-date on the status of the litigation, and participation by listening to such calls is not


9

common benefit work. Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients, and that is a reason to listen in on those calls. The attorneys designated by the Coordinating Co-Lead Counsel to run those calls are working for the common benefit by keeping other lawyers informed and educated about the case, and their time will be considered for common benefit. Nothing in this paragraph shall be construed to prevent members of the PSC from submitting common benefit time for participation in PSC communications that are germane to all members of the PSC and are necessary to fulfill their PSC obligations.

c. Periodic Status Conferences. Regular status conferences are held so that the litigation continues to move forward and legal issues are resolved with the court. Individual attorneys are free to attend any status conference held in open court in order to keep up-to-date on the status of the litigation and participation, but attending and listening to such conferences is not common benefit work. Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients. Mere attendance at a status conference will not be considered a common benefit expense or common benefit time. Coordinating Co- Lead Counsel will consult with Co-Lead Counsel regarding matters to be discussed and argued at the Status conferences to determine counsel who will make presentations and insure proper coordination on issues. The attorneys designated by the Coordinating Co-Lead Counsel, to address issues that will be raised at a given status conference or requested by the Coordinating Co-Lead Counsel to be present at a status conference are working for the common benefit and their time will be considered for common benefit. Similarly, Co-Lead Counsel, as well as any other attorney whose attendance at a status conference is specifically requested by the Judge in that case may submit their time for evaluation as common benefit time.

d. Committee Meetings or Calls: During committee phone calls or other meetings there is a presumption that only one participant per firm will qualify for common benefit time, unless otherwise authorized by the Co-Lead Counsel in consultation with the Coordinating Co-Lead Counsel.

e. Identification and Work Up of Experts: Participating Counsel are expected to identify experts in consultation with the Coordinating Co-Lead Counsel, the Co-Lead Counsel for the individual MDLs, and the Expert Committee, which is co-chaired by Ben Anderson and Mark Mueller, who are responsible to coordinate with the


10

Coordinating Co-Lead Counsel and the Co-Leads of the individual MDLs. If a Participating Counsel travels to and retains an expert without the knowledge and approval of the Coordinating Co-Lead Counsel or a Co-Lead of an MDL, they understand that the MDL may not need or use that expert and their time and expenses may not be eligible for common benefit expenses/work.

f. Attendance at Seminars: Mere attendance at a seminar does not qualify as common benefit work or a common benefit expense unless the individual is attending at the direction of Coordinating Co-Lead counsel and for the benefit of the MDL.

g. Document Review: Only document review specifically authorized by the Co-Lead Counsel for the MDL and assigned to an attorney will be considered common benefit work. The review done in a designated attorney's office will be performed by appropriately trained individuals selected by the attorney. If a reviewer elects to review documents that have not been assigned to that attorney by the Co-Lead Counsel for the MDL, that review is not considered common benefit. Counsel will receive periodic reports from the vendor(s) retained to manage the electronic production, of computer billing time for depository review. Such Vendor should have the capability to track actual time spent by each attorney reviewing documents. Participating Counsel should bring any discrepancy to the attention of the Coordinating Co-Lead Counsel or its designee within thirty days of receipt of the Vendors report. Failure to timely bring any claimed discrepancy to the attention of the Coordinating Co-Lead Counsel Committee will result in the compensable document review time being presumptively deemed that which was electronically logged by Vendor. A Fee Committee at the appropriate time will review all fee submissions related to document review, and document review that is duplicative of what has been assigned in the MDL may not be compensated.

h. Review of Pleadings and Orders: Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients, and review of pleadings and orders is part of that obligation. Only those attorneys designated by the Coordinating Co-Leads or the Co-Leads of the individual MDLs to review or summarize those pleadings or orders for the MDL are working for the common benefit and their time will be considered for common benefit. All other counsel are reviewing those pleadings and orders for their own benefit and the benefit of their own clients, and the review is not considered common benefit. Nothing in this paragraph shall be construed to prevent the Executive Committee, Co-lead, Co-Liaison Counsel and the PSC


11

from submitting common benefit time for reviewing orders of the court that are germane to all members of the PSC and are necessary for review to fulfill their committee or court appointed obligations.

i. Emails: Time recorded for reviewing emails, and providing non substantive responses, generally is not compensable unless germane to a specific task being performed by the receiving or sending attorney or party that is directly related to that email. Thus, for example, review of an email sent to dozens of attorneys to keep them informed on a matter on which they are not specifically working would not be compensable. Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients and that is a reason to review emails to a larger group which involves a matter on which the recipient is not directly and immediately working. If time submissions are heavy on email review and usage with little related substantive work, that time may be heavily discounted or not compensated at all.

j. Review of Discovery Responses: Each attorney has an obligation to keep themselves informed about the litigation so that they can best represent their clients and that is a reason to review discovery responses served in this litigation. Only those attorneys designated by the Co-Lead Counsel for the individual MDL to review and summarize those discovery responses for the MDL are working for the common benefit and their time will be considered for common benefit. All other counsel are reviewing those discovery responses for their own benefit and the benefit of their own clients, and the review is not considered common benefit.

k. Bellwether Trials. While the work-up of individual cases is notconsidered common benefit, in the event that a case is selected as part of an approved early preference or bellwether trial process in the MDL or participating state court proceedings, the time and expenses in trying the case (including work performed as part of the approved bellwether process) may be considered for common benefit to the extent it complies with other provisions of this Agreed Order or Participation Agreement.

l. Pre-Litigation Hours Materially Advanced. The court will have the authority and discretion to permit the accounting of pre-litigation hours materially advanced for common benefit.

m. State Court and Bard MDL common benefit hours. The court contemplates that work done for the common benefit through the


12

Bard MDL, in federal litigation prior to the formation of this MDL or through state court proceedings in New Jersey, Delaware, Massachusetts, Minnesota, West Virginia and elsewhere will be compensable time, and can be submitted so long as it has been approved and agreed to by the co-lead of the applicable MDL and/or the Coordinating Co-lead counsel.

n. Paralegal Hours. Common benefit time performed by Paralegals will be approved based on the requirements set forth in this Agreed Order for attorneys.

In the event Plaintiffs’ Counsel are unsure if the action they are about to

undertake is considered a common benefit action, counsel shall ask the Coordinating Co-

Lead Counsel or Co-Lead Counsel in advance as to whether such time may be

compensable.

E. Time Keeping and Submission of Time Records

All time must be authorized and accurately and contemporaneously maintained.

Time shall be kept according to these guidelines as noted herein and submitted in the

Forms approved by the CPA. Participating Counsel shall keep a daily record of their time

spent in connection with common benefit work on this litigation, indicating with

specificity the hours, location and particular activity (such as “conducted deposition of

John Doe”). Time entries that are not sufficiently detailed may not be considered for

common benefit payments. All common benefit work time for each firm shall be

maintained in a tenth-of-an-hour increment.

The following shall be noted:

All time submissions must be incurred only for work authorized under this Agreed Order.

1. All time submissions must be made on the Forms approved by the CPA.

2. All time and expenses are subject to proper and timely submission every six (6) weeks (reports shall be submitted within 20 days of the close of the due date) of contemporaneous records certified to have been timely


13

received within the preceding six (6) weeks. Beginning November 1, 2012, submissions shall be made for all time incurred prior to the entry of this Agreed Order.

3. All expenses submissions must include receipts for all expenses.

4. All time and expense submissions must be electronically sent in the attached forms approved by the CPA every six (6) weeks to the attention of Co-Lead Counsel of the applicable MDL; to the coordinating Co-leads Henry Garrard, Fred Thompson and Bryan Aylstock; to the Plaintiffs’ Co-Liaison Counsel, Harry F. Bell, Jr., Paul Farrell and Carl Frankovitch; and to the CPA, as set forth above. Co-Lead Counsel of each MDL, Coordinating Co-Lead Counsel and Co-liaison Counsel will cooperatively share and maintain the data submitted with the Executive Committee. It is therefore essential that each firm, every six (6) weeks, timely submit its records for the preceding month.

5. Untimely Submissions. Failure to provide time and expense records on a quarterly basis as set forth herein shall result in a waiver of same.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to file a copy of this order in 2:12-md-2327 and it

shall apply to each member related case previously transferred to, removed to, or filed in

this district, which includes counsel in all member cases up to and including civil action

number 2:12-cv-06168. In cases subsequently filed in this district, a copy of the most

recent pretrial order will be provided by the Clerk to counsel appearing in each new

action at the time of filing of the complaint. In cases subsequently removed or

transferred to this court, a copy of the most recent pretrial order will be provided by the

Clerk to counsel appearing in each new action upon removal or transfer. It shall be the

responsibility of the parties to review and abide by all pretrial orders previously entered


14

by the court. The orders may be accessed through the CM/ECF system or the court=s


ENTER: October 4, 2012


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Submitted and Approved by the Plaintiffs’ Coordinating Co-Leads, Executive Committee and Co-liaison Counsel, who have consulted and approved the same among all PSC Counsel

By: /s/Harry F. Bell, Jr. Harry F. Bell, Jr. Plaintiffs’ Co-Liaison Counsel

[email protected] West Virginia Bar No. 297 The Bell Law Firm, PLLC P. O. Box 1723 Charleston, WV 25326 (304) 345-1700

By: /s/Paul T. Farrell, Jr. Paul T. Farrell, Jr. Plaintiffs’ Co-Liaison Counsel

[email protected] West Virginia Bar No. 7433 Greene Ketchum Bailey Walker Farrell & Tweel P. O. Box 2389 Huntington, WV 25724-2389 (304) 525-9115

By: /s/Carl N. Frankovitch Carl N. Frankovitch Plaintiffs’ Co-Liaison Counsel

[email protected] West Virginia Bar No. 4746 Frankovitch Anetakis Colantonio & Simon 337 Penco Road Weirton, WV 26062 (304) 723-4400

By: /s/Henry G. Garrard, III Henry G. Garrard, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee

[email protected] Georgia Bar No. 286300


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By: /s/Fred Thompson, III Fred Thompson, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee

[email protected] South Carolina Bar No. 5548 Motley Rice, LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 (843) 216-9118

By: /s/Bryan F. Aylstock Bryan F. Aylstock Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee

[email protected] Florida Bar No. 078263 Alystock Witkin Kreis & Overholtz 17 E. Main Street, Suite 200 Pensacola, FL 32502 (877) 810-4808

By: /s/Clayton A. Clark Clayton A. Clark Plaintiffs’ Executive Committee

[email protected] Texas Bar No. 04275750 Clark, Love & Hutson, G.P. 440 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 757-1400

By: /s/Amy Eskin Amy Eskin Plaintiffs’ Executive Committee

[email protected] California Bar No. 127668


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Hersh & Hersh 601 Van Ness Avenue, Suite 2080 San Francisco, CA 94102-6388 (415) 441-5544

By: /s/Derek H. Potts Derek H. Potts Plaintiffs’ Executive Committee

[email protected] Missouri Bar No. 44882 The Potts Law Firm, LLP 908 Broadway, 3rd Floor Kansas City, MO 64105 (816) 931-2230

By: /s/Aimee H. Wagstaff Aimee H. Wagstaff Plaintiffs’ Executive Committee

[email protected] Colorado Bar No. 36819 Andrus Hood & Wagstaff, PC 1999 Broadway, Suite 4150 Denver, CO 80202 (303) 376-6360

By: /s/Thomas P. Cartmell Thomas P. Cartmell Plaintiffs’ Executive Committee

[email protected] Missouri Bar No. 45366 Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 (816) 701-1100

By: /s/Fidelma P. Fitzpatrick Fidelma P. Fitzpatrick Plaintiffs’ Co-Lead Counsel

[email protected] Rhodes Island Bar No. 5417



18

By: /s/Renee Baggett Renee Baggett Plaintiffs’ Co-Lead Counsel

[email protected] Florida Bar No. 0038186 Aylstock, Witkin, Kreis & Overholtz 17 East Main Street, Suite 200 Pensacola, FL 32502 (850) 202-1010

By: /s/Mark C. Mueller Mark C. Mueller Plaintiffs’ Co-Lead Counsel

[email protected] Texas Bar No. 14623000 Mueller Law 404 West 7th Street Austin, TX 78701 (512) 478-1236

By: /s/Robert Salim Robert Salim Plaintiffs’ Co-Lead Counsel

[email protected] Louisiana Bar No. 11663 Law Offices of Robert L. Salim 1901 Texas Street Natchitoches, LA 71457 (318) 352-5999

By: /s/Riley Burnett Riley Burnett Plaintiffs’ Co-Lead Counsel

[email protected] Texas Bar No. 03428900 Law Offices of Riley L. Burnett, Jr. 440 Louisiana, Suite 1600 Houston, TX 77002 (713) 757-1400



CHARLESTON DIVISION

IN RE: ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION MDL NO. 2327 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _


PRETRIAL ORDER # 62(AGREED ORDER ESTABLISHING MDL 2327 FUND TO COMPENSATE AND REIMBURSE ATTORNEYS FOR SERVICES PERFORMED AND EXPENSES

INCURRED FOR MDL ADMINISTRATION AND COMMON BENEFIT)

This Agreed Order is entered to provide for the fair and equitable sharing among

plaintiffs of the cost of special services performed and expenses incurred by “participating

counsel” acting for MDL administration and common benefit of all plaintiffs in this complex

litigation. This Agreed Order specifically incorporates by reference herein, and makes binding

upon the parties, the procedures and guidelines referenced in Pretrial Order #18 (Agreed Order

Regarding Management of Timekeeping, Cost Reimbursement and Related Common Benefit

Issues).

1. MDL 2327 Attorney Participation Agreement

Attached hereto as Exhibit “A” and incorporated herein is a voluntary “MDL 2327

Attorney Participation Agreement” (sometimes referred to as the “Participation Agreement”)

between the Plaintiffs’ Steering Committee (“PSC”) and other plaintiffs’ attorneys. The

Participation Agreement is a private and cooperative agreement between plaintiffs’ attorneys

only. It is not an agreement with defendant Ethicon, Inc., Ethicon, LLC, Johnson & Johnson,

American Medical Systems, Inc., Boston Scientific Corporation, C.R. Bard, Inc., Sofradim

Production SAS, Tissue Science Laboratories Limited, Mentor Worldwide LLC, Coloplast Corp.

or Cook Medical, Inc. (collectively “Defendants”). All PSC members are deemed to have


2

executed the Participation Agreement. “Participating Counsel,” as that term is used in the

Participation Agreement, include: (1) all members of the PSC and (2) any other plaintiffs’

attorneys who sign the Participation Agreement. Participating Counsel are entitled to receive the

MDL common-benefit work-product and the state court work-product of those attorneys who

have also signed the Participation Agreement and shall be entitled to seek disbursements as

Eligible Counsel as provided in section 4 of this Agreed Order. In return, Participating Counsel

agree to pay the assessment amount provided in section 3 of this Agreed Order on all filed and

unfiled cases or claims in state or federal court in which they share a fee interest. Counsel who

choose not to execute the Participation Agreement within ninety (90) days of entry of this Agreed

Order, are not entitled to receive Common-Benefit Work Product (as defined in the Participation

Agreement) and may be subject to an increased assessment on all MDL 2327 cases in which they

have a fee interest for the docket management and the administrative services provided by the

PSC and if they receive Common-Benefit Work-Product or any other work-product created

pursuant to this Agreed Order, or otherwise benefit by the work performed by the MDL and

other counsel working with the MDL pursuant to this Agreed Order.

2. Covered Claims

This Agreed Order applies to the following Ethicon, Inc., Ethicon, LLC, Johnson &

Johnson, American Medical Systems, Inc., Boston Scientific Corporation, C.R. Bard, Inc.,

Sofradim Production SAS, Tissue Science Laboratories Limited, Mentor Worldwide LLC,

Coloplast Corp., or Cook Medical claims (hereinafter collectively referred to as “mesh injury

claims”), whether direct or derivative:

a. All mesh injury claims now (as of the date of the entry of this Agreed

Order) or hereafter subject to the jurisdiction of MDL 2327, whether


3

disposed of before or after remand, regardless of whether counsel holding

a fee interest in such mesh injury claims have signed the MDL 2327

Attorney Participation Agreement, including but not limited to:

i. All mesh injury claims settled pursuant to an MDL supervised

Settlement Agreement between the parties;

ii. All mesh injury claims participating in MDL 2327 or on tolling

agreement;

iii. All mesh injury claims where attorneys who receive Common-

Benefit Work-Product or otherwise benefit by the work performed

by the PSC or common-benefit counsel working with the PSC

(including all firms that accessed the PSC document database prior

to the date of this Agreed Order) either agree or have agreed – for

monetary consideration – to settle, compromise, dismiss, or reduce

the amount of a claim or, with or without trial, recover a judgment

for monetary damages or other monetary relief, including

compensatory and punitive damages (hereinafter a “Settlement”),

with respect to any mesh injury claim are subject to an assessment

on the “Gross Monetary Recovery,” as provided herein; and

iv. All mesh injury claims in which any PSC member or participating

counsel has a financial interest.

b. All mesh injury claims, in which the plaintiffs’ attorneys have either:

i. Received the benefit of MDL 2327 work-product (including all

firms that accessed the PSC document database prior to the date of


4

this Agreed Order);

ii. Signed the MDL 2327 Attorney Participation Agreement, attached

hereto as Exhibit “A”; or

iii. Are members of the PSC.

(collectively hereinafter referred to as the “Covered Claims”).

3. Assessments and Payments into the MDL 2327 Fund for All Covered Claims

a. A total assessment for payment of attorneys’ fees and approved common-

benefit and MDL expenses of five percent (5%) of the Gross Monetary

Recovery shall apply to all Covered Claims (the “Assessment”).

b. In measuring the Gross Monetary Recovery:

i. Include all sums to be paid in settlement of the claim;

ii. Exclude court costs that are to be paid by any Defendant;

iii. Exclude any payments made directly by any Defendant on a formal

intervention asserted directly against the Defendant by third-

parties, such as to physicians, hospitals, and other health-care

providers on Court recognized valid subrogation claims related to

treatment of plaintiff; and,

iv. Include the present value of any fixed and certain payments to be

made in the future.

c. Defendants are directed to withhold the Assessment from amounts paid on

any Covered Claim and to pay the Assessment directly into the MDL 2327

Fund as a credit against the Settlement or Judgment. If for any reason the

Assessment is not or has not been so withheld, the Defendants as well as


5

the plaintiff and his or her counsel are jointly responsible for paying the

Assessment into the MDL 2327 Fund promptly.

d. From time to time, the PSC shall provide a list of all then-known Covered

Claims to the Administrator of the MDL 2327 Fund, Defendant’s Liaison

Counsel, plaintiffs’ counsel, and the Court or its designee. In connection

therewith, Defendant shall, upon request from the PSC, supply to the PSC

a list of all then-known Covered Claims, including the name of each

plaintiff and his or her attorney, if any.

e. A Defendant and its counsel shall not distribute any potential common

benefit portion of any settlement proceeds with respect to any Covered

Claims until: (1) Defendant’s counsel notifies the PSC in writing of the

existence of a settlement and the name of the individual plaintiff’s

attorney holding such Covered Claims and (2) Plaintiffs’ Liaison Counsel

has confirmed to Defendant’s counsel in writing that the individual

plaintiff attorney’s cases or claims are subject to an Assessment pursuant

to this Agreed Order.

f. Information regarding the amount of an Assessment paid or to be paid into

the MDL 2327 Fund will be provided only to the individual plaintiff’s

attorney holding the Covered Claim, the court-appointed Certified Public

Accountant, and the Court, and shall otherwise remain confidential and

shall not be disclosed to the PSC or any of its members or to any other

person unless ordered by the Court.


6

g. The Assessment represents a hold-back (In re Zyprexa Prods. Liab. Litig.,

467 F.Supp.2d 256, 266 (2d Cir. 2006)) and shall not be altered in any

way unless this Court, upon good cause shown, amends this Agreed Order.

h. Nothing in this Agreed Order is intended to increase the attorneys’ fee

paid by a client, nor to in any way impair the attorney/client relationship

or any contingency fee contract deemed lawful by the attorneys’

respective state bar rules and/or state court orders.

i. Upon payment of the Assessment into the MDL 2327 Fund, Defendants

shall be released from any and all responsibility to any person, attorney, or

claimant with respect to the Assessment placed into the MDL 2327 Fund.

Any person, attorney, or claimant allegedly aggrieved by an Assessment

pursuant to this Agreed Order shall seek recourse as against the MDL

2327 Fund.

j. The Court directs for purposes of this Assessment, that the CPA

previously appointed by the Court, Chuck Smith, shall oversee the

handling of such funds working in conjunction with plaintiff’s co-liaison

counsel. Such funds shall be held separate and apart as the CPA, who shall

act as Administrator of the fund, in an appropriate account.

4. Disbursements from the MDL 2327 Fund for Common Benefit Work

a. From time to time the Executive Committee may make application for

disbursements for the MDL 2327 Fund for common benefit work and

expenses. Upon a proper showing and Order of the Court, payments may

be made from the MDL 2327 Fund to attorneys who have provided


7

services or incurred expenses for the joint and common benefit of

plaintiffs and claimants whose claims have been treated by this Court as a

part of these proceedings in addition to their own client or clients. Such

“Eligible Counsel” include:



iii. Other attorneys performing similar responsibilities in state court actions, provided that all cases in which any putative common- benefit attorneys have a financial interest are subject to this Agreed Order.


consideration will be given to the experience, talent, and contribution

made by Eligible Counsel, and to the time and effort expended by each

as well as to the type, necessity, and value of the particular legal services

rendered.

c. If the MDL 2327 Fund exceeds the amount needed to make payments as

provided in this Agreed Order, the Court may order a refund to plaintiffs

and their attorneys who were subject to the Assessment. Any such refund

will be made in proportion to the amount that was assessed.

5. Incorporation by Reference

The MDL 2327 Attorney Participation Agreement is attached hereto as Exhibit A

and is incorporated by reference and has the same effect as if fully set forth in the body of this

Agreed Order.


8

6. No Objection to Order

Defense counsel having reviewed this proposed order express no objection to the same.





provided by the Clerk to counsel appearing in each new action at the time of filing of the

complaint. In cases subsequently removed or transferred to this court, a copy of the most recent

pretrial order will be provided by the Clerk to counsel appearing in each new action upon

removal or transfer. It shall be the responsibility of the parties to review and abide by all pretrial

orders previously entered by the court. The orders may be accessed through the CM/ECF system

or the court=s website at www.wvsd.uscourts.gov.

ENTER: August 26, 2013

Submitted and Approved by the Plaintiffs’ Coordinating Co-Leads, ExecutiveCommittee and Co-liaison Counsel, who have consulted and approved the same

among all PSC Counsel

By: /s/Harry F. Bell, Jr. Harry F. Bell, Jr. Plaintiffs’ Co-Liaison [email protected] Virginia Bar No. 297

The Bell Law Firm, PLLC P. O. Box 1723 Charleston, WV 25326 (304) 345-1700


9

By: /s/Paul T. Farrell, Jr. Paul T. Farrell, Jr. Plaintiffs’ Co-Liaison Counsel [email protected] West Virginia Bar No. 7433

Greene Ketchum Bailey Walker Farrell & Tweel P. O. Box 2389 Huntington, WV 25724-2389 (304) 525-9115

By: /s/Carl N. Frankovitch Carl N. Frankovitch Plaintiffs’ Co-Liaison Counsel [email protected] Virginia Bar No. 4746

Frankovitch Anetakis Colantonio & Simon 337 Penco Road Weirton, WV 26062(304) 723-4400

By: /s/Henry G. Garrard, III Henry G. Garrard, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee [email protected] Bar No. 286300


By: /s/Fred Thompson, III Fred Thompson, III Plaintiffs’ Coordinating Co-Lead Counsel and Executive Committee [email protected] South Carolina Bar No. 5548

Motley Rice, LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 (843) 216-9118

By: /s/Bryan F. Aylstock Bryan F. Aylstock Plaintiffs’ Coordinating


10

Co-Lead Counsel and Executive Committee [email protected] Florida Bar No. 078263

Alystock Witkin Kreis & Overholtz 17 E. Main Street, Suite 200 Pensacola, FL 32502 (877) 810-4808

By: /s/Clayton A. Clark Clayton A. Clark Plaintiffs’ Executive Committee [email protected] Bar No. 04275750

Clark, Love & Hutson, G.P. 440 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 757-1400

By: /s/Amy Eskin Amy Eskin Plaintiffs’ Executive Committee [email protected] Bar No. 127668

Levin Simes LLP 353 Sacramento Street, 20th Floor San Francisco, CA 94111 (415) 426-3000

By: /s/Derek H. Potts Derek H. Potts Plaintiffs’ Executive Committee [email protected] Bar No. 44882

The Potts Law Firm, LLP908 Broadway, 3rd FloorKansas City, MO 64105 (816) 931-2230


11

By: /s/Aimee H. Wagstaff Aimee H. Wagstaff Plaintiffs’ Executive Committee [email protected] Colorado Bar No. 36819

Andrus Hood & Wagstaff, PC 1999 Broadway, Suite 4150 Denver, CO 80202 (303) 376-6360

By: /s/Thomas P. Cartmell Thomas P. Cartmell Plaintiffs’ Executive Committee [email protected] Missouri Bar No. 45366

Wagstaff & Cartmell, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 (816) 701-1100

By: /s/Fidelma P. Fitzpatrick Fidelma P. Fitzpatrick Plaintiffs’ Co-Lead Counsel [email protected] Rhodes Island Bar No. 5417


By: /s/Renee Baggett Renee Baggett Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 0038186

Aylstock, Witkin, Kreis & Overholtz 17 East Main Street, Suite 200 Pensacola, FL 32502 (850) 202-1010


12

By: /s/Mark C. Mueller Mark C. Mueller Plaintiffs’ Co-Lead Counsel [email protected] Texas Bar No. 14623000

Mueller Law 404 West 7th StreetAustin, TX 78701 (512) 478-1236

By: /s/Robert Salim Robert Salim Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 11663

Law Offices of Robert L. Salim 1901 Texas Street Natchitoches, LA 71457 (318) 352-5999

By: /s/Riley Burnett Riley Burnett Plaintiffs’ Co-Lead Counsel [email protected] Texas Bar No. 03428900

Law Offices of Riley L. Burnett, Jr. 440 Louisiana, Suite 1600 Houston, TX 77002 (713) 757-1400

By: /s/Benjamin H. Anderson Benjamin H. Anderson

Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 0067466

Anderson Law Offices, LLC 1360 West 9th Street, Suite 215 Cleveland, OH 44113 (216) 589-0256


13

By: /s/Martin D. Crump Martin D. Crump Plaintiffs’ Co-Lead Counsel [email protected] Bar No. 10652

Davis & Crump 1712 15th Street, Suite 300 Gulfport, MS 39501 (228) 863-6000


EXHIBIT “A”

MDL 2327 ATTORNEY PARTICIPATION AGREEMENT

This Attorney Participation Agreement is made this day of ,

20 , by and between the Plaintiffs’ Steering Committee (“PSC”) appointed by the

United States District Court for the Southern District of West Virginia MDL Docket

No. 2327 and:

(hereinafter “Participating Counsel”).

WHEREAS, the PSC in association with other attorneys working for the common

benefit of plaintiffs (the “Eligible Counsel”) have developed or are in the process of developing

work product which will be valuable in the litigation of state and federal court proceedings

involving claims of mesh-related injuries (the “Common Benefit Work Product”); and

WHEREAS, the Participating Counsel are desirous of acquiring the Common

Benefit Work Product and establishing an amicable, working relationship with the PSC

for the mutual benefit of their clients;

NOW, THEREFORE, in consideration of the covenants and promises contained herein,

and intending to be legally bound hereby, the parties agree as follows:

1. This Agreement incorporates by reference any Order of the Court regarding

assessments and incorporates fully herein all defined terms from such Order(s).

2. This Agreement applies to each and every claim, case, or action arising from

the use of Mesh Products in which the Participating Counsel has a financial interest, whether

the claim, case, or action is currently filed in state or federal court, or is unfiled, or is on a

tolling agreement (hereinafter collectively the “Covered Claims”).


2

3. With respect to each and every Covered Claim, Participating Counsel understand

and agree that Defendant and its counsel will hold back a percentage proportion of the gross

recovery that is equal to five percent (5%) of the Gross Monetary Recovery (“the

Assessment”). Defendants or their counsel will deposit the Assessment in the MDL 2327

Common Benefit Fund (“the Fund”). Should Defendants or their counsel fail to hold back

the Assessment for any Covered Claim, Participating Counsel and their law firms shall deposit

or cause to be deposited the Assessment in the Fund. It is the intention of the parties that

absent extraordinary circumstances recognized by MDL 2327 Court Order, such Assessment

shall be in full and final satisfaction of any present or future obligation on the part of each

Plaintiff and/or Participating Counsel to contribute to any fund for the payment or

reimbursement of any legal fees, services or expenses incurred by, or due to, the PSC,

Participating Counsel, and/or any other counsel eligible to receive disbursements from the

Fund pursuant to an Order of the Court regarding assessments or the Fund.

4. The Participating Counsel, on behalf of themselves, their affiliated counsel,

and their clients, hereby grant and convey to the PSC a lien upon and/or a security interest in

any recovery by any client who they represent or in which they have a financial interest in

connection with any mesh-related injury, to the full extent permitted by law, in order to secure

payment of the Assessment. The Participating Counsel will undertake all actions and execute

all documents that are reasonably necessary to effectuate and/or perfect this lien and/or security

interest.

5. The amounts deposited in the MDL 2327 Fund shall be available for distribution

to Participating Counsel pursuant and subject to any Order of the Court regarding assessments

or the Fund. Participating Counsel may apply to the Court for common-benefit fees and


3

reimbursement of expenses, provided that Participating Counsel:

a. were called upon by the Co-Lead Counsel to assist them in performing their

responsibilities;

b. appointed by the Court as Co-liaison counsel to perform such services and

assist in the overall prosecution of the claims and administration of the

combined and coordinated efforts;

c. expended time and efforts for the common benefit either in MDL 2327 and

other state litigation; and

d. timely submitted such time and expenses in accordance with the Court’s

orders and the procedures established by the PSC.

6. This Agreement is without prejudice to the amount of fees or costs to which

Participating Counsel may be entitled to in such an event.

7. Upon request of the Participating Counsel, the PSC will provide within a

reasonable time to the Participating Counsel, to the extent developed, the Common Benefit

Work Product, including access to the PSC’s virtual depository, and, if and when developed a

complete trial package.

8. As the litigation progresses and Common Benefit Work Product continues to be

generated, the PSC will provide Participating Counsel with such work-product and will

otherwise cooperate with the Participating Counsel to coordinate the MDL litigation and the

state litigation for the benefit of the plaintiffs.

9. No assessments will be due by the Participating Counsel on any recoveries

resulting from a medical malpractice claims against treating physicians.

10. Both the PSC and the Participating Counsel recognize the importance of


4

individual cases and the relationship between case-specific clients and their attorneys. The

PSC recognizes and respects the value of the contingency fee agreement as essential in

providing counsel to those who could not otherwise avail themselves of adequate legal

representation, and it is the intent of the PSC to urge the Court to not interfere with any such

agreements so long as they comport with the applicable state bar rules and/or state court orders.

PLAINTIFFS’ STEERING COMMITTEE

By: _________________________________

PARTICIPATING ATTORNEYS By:


1

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

IN RE: ETHICON, INC. MDL NO. 2327PELVIC REPAIR SYSTEMSPRODUCTS LIABILITY LITIGATION---------------------------------------------------------------THIS DOCUMENT RELATES TO ALL CASES__________________________________________

EXHIBIT 4 – FEE AFFIDAVIT OF [NAME OF LAW FIRM] IN CONNECTION WITHREQUEST FOR ALLOCATION OF AGGREGATE COMMON BENEFIT AND

COSTS AWARD

STATE OF ________________________

COUNTY/PARISH OF ___________________

BEFORE ME, the undersigned authority;

PERSONALLY CAME AND APPEARED:

(INSERT NAME OF PARTNER/AFFIANT)

Who, after being first duly sworn, under penalty of perjury, did depose and declare that the

following are true correct:

1. I am a partner in the law firm of ___________________.

2. The address of the law firm identified in number 1 above is _________________.

3. I have complied with Pretrial Order No. 18, 62, 211 and ________ (this Order) in all

material aspects and the law firm identified herein has submitted true and correct time

and expense submissions pursuant to the Court’s Pretrial Orders. This Affidavit is

submitted on behalf of all the members of the law firm of which I am a partner.

4. The Court may rely on the information submitted by my firm to the Fee and Cost

Committee through the Initial Cut-off Date.


2

5. The extent to which the law firm identified in paragraph no.1 above made a substantial

common benefit contribution to the outcome of the litigation is described as follows:

a. The consistency quantum, duration, and intensity of the firm’s commitment to the litigation is as follows: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

b. The level of experience, reputation, and status of each attorney and firm, including partner participation by the firm, is as follows: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

c. The firm’s membership and/or leadership on the Plaintiffs’ Steering Committee (“PSC”) and/or Executive Committee is as follows: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

d. The firm’s participation and leadership in discovery (motions, depositions) is as follows: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

e. The firm’s participation and leadership in law and briefing matters is as follows: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

f. The firm’s participation and leadership in science and expert matters is as follows:

_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________


3

g. The firm’s participation and leadership in document review is as follows:

_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

h. The firm’s activities in preparation for, support of or conduct of bellwether trials or

other trials which impacted proceedings on a common benefit level is as follows. Each Firm requesting common benefit reimbursement for any individual case shall provide an explanation in their affidavit of why the Firm believes such work should be considered as common benefit. For example, whether and how such work benefited the MDL plaintiffs generally; the status of settlements in the particular MDL in which the work was performed at the time such work was performed, and whether the case-specific work assisted in bringing about settlements with the defendant in that MDL. Each Firm requesting common benefit reimbursement for work done in any State Court case shall provide an explanation in their affidavit of why the Firm believes such work should be considered as common benefit. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

i. The firm’s participation and leadership in settlement negotiations, drafting of settlement documentation and closing papers, and administration of settlement agreements (excluding individual representations) is as follows: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

j. Where common benefit MDL work occurred: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

k. The following members of the firm held leadership positions in groups that engaged in common benefit work (describe position and group): _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________


4

l. The firm’s participation in ongoing activities, such as the Fee and Cost Committee, Settlement Claims Administration, or Court-Appointed Committees and Leadership, which are intended to provide common benefit included the following: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

m. Explain whether counsel in the firm were or were not involved in the litigation prior

to the formation of the MDL, and the time and expenses incurred during such time period outlined below were for common benefit: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

n. The firm made the following, significant contributions to the funding of the litigation

(include all assessments made to the MDL) and the amount of any sums reimbursed and date(s) of reimbursement: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

o. The members of the firm who were PSC members, group members, or Executive Committee members whose commitment to the litigation did not ebb included: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________


5

p. The other relevant factors which the Fee Applicant requests be considered by the Court: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ ______________________________

SWORN TO AND SUBSCRIBED BEFORE ME THIS ______ DAY OF _________________, 201___. ____________________________ NOTARY PUBLIC PRINT NAME: _____________________ My commission expires: ______________ [APPLY SEAL]


EXHIBIT G


Hon. Daniel J. Stack (Ret) 1529 Anton Dr., Columbia, IL 62236-2875

Phone: 618-792-8604 [email protected]

February 27, 2018 Re: Additional information regarding the FCC letter and Exhibits that you received concerning the hours that were disallowed or reduced for your firm. Dear Sir or Madam: I have been in continuing communication with the members of the FCC since the delivery of the initial review of your firm’s time submissions on February 16, 2018. I want to provide some additional information as a result of questions that I have received. I believe that if you refer to the letter with all attachments as well as the Pretrial Orders of Judge Goodwin, you will find the answers to many of the questions that I have received. As you review the time that is identified on Exhibits A and B, the explanation provided in the letter from the FCC is meant to direct you to those aspects of the Court’s Orders where your time entries do not support an award for Common Benefit. Those paragraphs were included to indicate what aspects resulted in the entries being included. The numbered paragraphs on page 2 of the letter delivered by the FCC are specific to your firm. The purpose of returning the files to you is to allow you to provide further explanation why a particular time entry should be compensable. You should tell the committee why you think time is common benefit that has been identified on Exhibit A or B. With regard to hours incurred in pursuing state court matters, the FCC discussed and identified criteria for the compensation of hours. Only those hours within the periods identified on Exhibit C AND prior to the first favorable result for a particular TVM product are compensable. Once a favorable result was reached with regard to a particular TVM product, no further state court time was considered by the FCC as being for the common benefit.


Page 2

The FCC determined that hours submitted for Wave cases would be considered for Common Benefit within the applicable time periods set forth in Exhibit C and within the requirements of the Court’s Orders. The Court’s orders cited in the letter set forth individual work standards to be met for common benefit consideration. You should refer to those in preparing your response and what you want the FCC to consider.

Once appointed by Judge Goodwin, I have attended most of the meetings of the committee and have observed how they have conducted their business. My observation is that they have been diligent in their review and have tried very hard to be consistent. This is a full committee involvement.

Please keep in mind that there is a process in place for addressing these issues

and follow that process. The first step is for you to go over all of the time that has been reduced or disallowed as well as the letter and the Pre-Trial Orders and then submit your affidavit voluntarily withdrawing those hours that you observe fit into any of those categories and commenting briefly for reasons that you disagree with the reduction or disallowance.

Subsequent to that and the FCC’s re-review, you will have the opportunity

to appear in Charleston WV to address the FCC and myself to make a presentation and to answer questions which can lead to further adjustments. And when that has all been accomplished, if you still cannot agree, there will be a final opportunity to mediate through me.

I hope I have answered your questions. If not, please call me.

DDan (Judge Stack)

Daniel J. Stack (Retired Judge)


EXHIBIT H


Henry G. Garrard, [email protected]

September 13, 2018

Sent Via E-MailLee BalefskyKline & Specter, [email protected]; [email protected]

RE: Transvaginal Mesh MDL Common Benefit Fee and Cost CommitteePreliminary Written Recommendation

Dear Mr. Balefsky:

We are writing to you on behalf of the Common Benefit Fee and Cost Committeeappointed by the Honorable Joseph R. Goodwin with regard to MDL Nos. 2187,2325, 2326, 2327, 2387, 2440, and 2511 (the “FCC”). At this time, the FCC hascompleted its Initial Review of your fee submissions and your final time andexpense submission as accompanied by your affidavit in accordance with the FeeCommittee Protocol established by the Court. For those firms who sought anopportunity to be heard regarding common benefit fees and expenses, thosemeetings have been completed. There were approximately 900,000 hourssubmitted to the FCC for review. The FCC has carefully reviewed eachsubmission and has met with the co-leads of the MDL to discuss the contributionsmade by each firm to the MDL common benefit. For those firms that did not objectto the hours and expense as delivered to you, the FCC deems that you have noobjection regarding your hours or expenses for consideration.

The FCC now issues its Preliminary Written Recommendation with regard to theallocation of fees and expenses. The FCC currently recommends that your firmreceive consideration for 9,402.19 hours of time and receive $3,745,000.00 forcommon benefit. Additionally, the FCC currently recommends that your firmreceive $667,584.48 in reimbursement for held expenses that were for thecommon benefit of MDL claimants, plus the reimbursement of $350,000.00 whichwas paid by your firm as an assessment in the MDL. The dollar amounts identifiedherein for the compensation for your contribution to the common benefit are basedon the assumption by the FCC that there will be approximately $344,000,000.00available for payment of common benefit contributions at the time of the firstdistribution. The FCC also anticipates an additional amount of approximately$49,000,000.00 will be paid for the reimbursement of held costs and MDLassessments in the first distribution.


The amounts discussed herein are the FCC’s preliminary recommendation and are subject to change prior to the submission of the FCC’s final written recommendation to the external review specialist, The Honorable Dan Stack. Please note that all amounts are proposed and are subject to the consideration and final decision of the MDL Court. The FCC anticipates that there will be subsequent distributions in the future. The FCC anticipates requesting that 70% of any additional funds received be distributed by the Court pro rata in accordance with the allocations made to applicant firms. In addition, the FCC anticipates that it will request that 30% of any additional funds be held pending further Order of the Court.

Each firm is receiving the basis for its allocation in accordance with the Fee Committee Protocol. Further, in accordance with the Fee Committee Protocol, attached to this letter are (1) the explanation of the basis of the allocation for your firm, and (2) an explanation of the time and expenses allowed by the FCC for every firm seeking compensation for common benefit. In making its Preliminary Written Recommendation, the FCC considered, over a period of two years, the factors set forth in the Orders regarding common benefit, including Section B (Criteria for Common Benefit Applications) of the Court’s Order establishing common benefit compensation criteria for each of the firms seeking compensation. The FCC previously delivered to you those hours and expenses that the FCC identified as being disallowed for purposes of consideration for compensation through its delivery of Exhibits A, B and expenses at the conclusion of its Initial Review. The number of hours under consideration as common benefit was only one part of the evaluation process in regard to the FCC’s Preliminary Written Recommendation. Based on the requirements of the Fee Committee Protocol, the FCC evaluated each firm using the same criteria and exercised its discretion in evaluating the degree to which the work and expense incurred by each firm furthered the common benefit of the litigation. To the extent a firm requested an opportunity to be heard by the FCC, the FCC has considered the information presented by firms and has incorporated its deliberations and decisions into its Preliminary Written Recommendation. Throughout its evaluation, the FCC was primarily focused on evaluating the contribution of each common benefit attorney to the outcome of the litigation.

If you accept the FCC’s Preliminary Written Recommendation, you need take no further action. In accordance with the Fee Committee Protocol, if you wish to object to the preliminary written recommendation, you must notify the FCC on or before Friday, September 28, 2018, via email to the FCC Chairperson Henry Garrard at [email protected]. Any objection is limited to ten (10) pages. Upon timely notice to the FCC, your objection will be considered by the FCC prior to the issuance of the final written recommendation by the FCC.



Kline & Specter, P.C. Kline & Specter partner Lee B. Balefsky is a member of the Plaintiffs’ Steering Committee. Although in a position of leadership in the MDL, the firm generally preferred to work in state court in their home venue of Philadelphia, Pennsylvania, and expended significant hours fighting removal of Ethicon cases from state court there. This effort included thousands of hours of document review on the discrete issue of whether remand was appropriate. The Mass Tort Program in Philadelphia was an additional pressure point in the Ethicon litigation. The firm participated in early Ethicon document review as well. However, the firm’s efforts often conflicted with the cooperative efforts in the MDL, and the firm mandamused the Court on multiple occasions, which the Fourth Circuit denied in turn. In the Philadelphia Mass Tort Program in Pennsylvania State Court, the firm assisted in obtaining several successful verdicts against Ethicon, although most of those verdicts came on products where Plaintiffs’ verdicts were already obtained either in the MDL or in prior state courts. The firm acknowledges that much of the work product used in their state court trials was obtained from the MDL, and MDL attorneys – including leadership in the Ethicon MDL, BSC MDL and others –also participated in the work-up and trial of those cases. The firm appeared at a number of MDL corporate witness liability depositions by telephone but asked no questions at most of them. The firm tried no cases in the MDL and was not an active participant in the overall strategy and decision-making of the PSC. The Fee Committee notes that the firm declined to participate meaningfully in the fee allocation process, declining to provide additional information to specific entries whose appropriateness was questioned. The firm has ultimately performed good work in representing their individual clients in state court in Pennsylvania. The firm’s efforts largely consisted of utilizing common benefit work from the MDL rather than working to create common benefit to share with and make available to MDL claimants. The Fee Committee recognized a total of 9,402.19 hours and $667,584.48 in expenses. The firm contributed $350,000.00 in assessments. Based on a complete review of the time and expense records, the Fee Affidavit, the firm’s in-person presentation to the Fee Committee, and evaluation of the firm’s overall contribution to the common benefit of the MDLs, the Fee Committee recommends an allocation of $3,745,000.00, plus reimbursement of the firm’s $350,000.00 in assessments, and reimbursement of $667,584.48 in expenses.


EXHIBIT I



CHARLESTON DIVISION

IN RE: C.R. BARD, INC., PELVIC REPAIR SYSTEM MDL No. 2187 PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: AMERICAN MEDICAL SYSTEMS, INC., MDL No. 2325 PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: BOSTON SCIENTIFIC, PELVIC MDL No. 2326 REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: ETHICON, INC., PELVIC REPAIR MDL No. 2327 SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: COLOPLAST PELVIC REPAIR SYSTEM MDL No. 2387 PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE: COOK MEDICAL, INC, PELVIC REPAIR MDL No. 2440 SYSTEM PRODUCTS LIABILITY LITIGATION ____________________________________________________ IN RE NEOMEDIC PELVIC REPAIR SYSTEM MDL No. 2511 PRODUCT LIABILITY LITIGATION ___________________________________________________ THIS DOCUMENT RELATES TO ALL CASES ___________________________________________________

COMMON BENEFIT FEE AND COST COMMITTEE’S PETITION FOR AN AWARD OF COMMON BENEFIT ATTORNEYS’ FEES AND

EXPENSES, AND MEMORANDUM IN SUPPORT

Case 2:14-md-02511 Document 180 Filed 11/12/18 Page 1 of 47 PageID #: 942USCA4 Appeal: 19-1224 Doc: 18 Filed: 04/12/2019 Pg: 168 of 238USCA4 Appeal: 19-1853 Doc: 8-6 Filed: 08/09/2019 Pg: 168 of 238 Total Pages:(261 of 331)

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TABLE OF CONTENTS TABLE OF CONTENTS …………………………………………………………………………i TABLE OF AUTHORITIES ………………………………………………………………….....ii I. INTRODUCTION ……………………………………………………………………………1 II. COURT ORDERS RELATED TO COMMON BENEFIT FUND …………………………15

III. ARGUMENT AND AUTHORITIES ……………………………………………………….18

A. The District Court has Broad Discretion in Awarding Common Benefit Fee …………18

B. The Five-Percent (5) Holdback is an Appropriate Amount to be Awarded to Plaintiffs’ Participating Counsel for Fees and Reimbursement of Expenses …………..19

C. The Value and Scope of the Benefit Provided to MDL Claimants Supports a Five-

Percent (5%) Fee and Expense Award ………………………………………………….22

D. The Requested Five-Percent (5%) Award for Fees and Expenses Falls Well Within The Benchmark Percentage for Similar Cases ………………………………………….23

E. Consideration of the Barber Factors Further Supports the Five-Percent (5%) Award …26

1. Time and Labor Required (Factor 1); Attorneys’ Opportunity Costs in Pressing Litigation (Factor 4); Attorneys’ Expectations at the Outset of the Litigation (Factor 6); Time Limitations Imposed by the Client or the Circumstances (Factor 7) ………………………………………………………………………...27

2. The Novelty and Difficulty of the Questions (Factor 2); the “Undesirability”

of the Case (Factor 10) …………………………………………………………..28

3. The Skill Required to Perform the Legal Service (Factor 3); The Experience, Reputation, and Ability of the Attorneys (Factor 9) ……………………………...31

4. Nature and Length of Professional Relationship Between Attorney and Client

(Factor 11) ……………………………………………………………………….33

5. Customary Fee for Similar Work (Factor 5) ……………………………………..33

F. The Five-Percent (5%) Fee is Supported by the “Lodestar” Cross-Check ………………33

G. CONCLUSION…………………………………………………………………………37


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TABLE OF AUTHORITIES

Cases

Arenson v. Board of Trade, 372 F. Supp. 1349 (N.D. Ill. 1974) ........................................................................................... 32 Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 1978) ..................................................................................................... 26 Campbell v. Boston Scientific Corporation, 882 F.3d 70 (4th Cir. 2018) ....................................................................................................... 14 Cisson v. C.R. Bard, Inc., 810 F.3d 913 (4th Cir. 2016) ..................................................................................................... 14 Deem v. Ames True Temper, Inc., 2013 WL 2285972 (S.D.W. Va. 2013) ..................................................................................... 20 Deloach v. Philip Morris Cos., 2003 WL 23094907 (M.D.N.C. 2003) ...................................................................................... 35 Edmonds v. U.S., 658 F. Supp. 1126 (D.S.C. 1987) ........................................................................................ 22, 31 Eghnayem v. Boston Scientific Corporation, 873 F.3d 1304 (11th Cir. 2017) ................................................................................................. 14 Good v. West Virginia-American Water Co., 2017 WL 2884535 (S.D.W. Va. 2017) ............................................................................... 24, 32 Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................................................................. 22 Huskey v. Ethicon, Inc., 848 F.3d 151 (4th Cir. 2017) ..................................................................................................... 14 In re Actos (Pioglitazone) Prods. Liab. Litig., 2017 WL 3033134 (W.D. La. 2017) ................................................................. 21, 24, 34, 36, 37 In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006 (5th Cir. 1977) ................................................................................................... 18


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In re American Med. Sys., Inc., et al., Pelvic Repair Systems Prods. Liab. Litig., 844 F. Supp. 2d 1359 (J.P.M.L. 2012) .................................................................................... 1, 2 In re AOL Time Warner, Inc. Sec. Litig., 2006 WL 3057232 (S.D.N.Y. 2006) ......................................................................................... 35 In re Avandia Marketing, Sales Practices and Prods. Liab. Litig., 2012 WL 6923367 (E.D. Pa. 2012) ......................................................................... 21, 23, 25, 36 In re Avaulta Pelvic Support Sys. Prods. Liab. Litig., 746 F. Supp. 2d 1362 (J.P.M.L. 2010) ........................................................................................ 1 In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752 (S.D. Ohio 2007) ...................................................................................... 35 In re Coloplast Corp. Pelvic Repair Support Sys. Prods. Liab. Litig., 883 F. Supp. 2d 1348, MDL 2387 (J.P.M.L. 2012) .................................................................... 2 In re Cook Medical, Inc., Pelvic Repair Sys. Prods. Liab. Litig., 949 F. Supp. 2d 1373, MDL 2440 (J.P.M.L. 2013) .................................................................... 2 In re Diet Drugs Prods. Liab. Litig., 553 F. Supp. 2d 442 (E.D. Pa. 2008), aff’d, 582 F.3rd 524 (3rd Cir. 2009) ................. 22, 25, 27 In re Diet Drugs, 582 F.3d 524 (3d Cir. 2009) ................................................................................................ 19, 36 In re Enron Corp. Securities, Derivative & ERISA Litig., 586 F. Supp. 2d 732 (S.D. Tex. 2008) ...................................................................................... 35 In re Equity Funding Corp. Sec. Litig., 438 F. Supp. 1303 (C.D. Cal. 1977) .......................................................................................... 32 In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 2013 WL 1867117 (E.D. La. 2013) .......................................................................................... 21 In re Genetically Modified Rice Litig., 835 F.3d 822 (8th Cir. 2016) ..................................................................................................... 19


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In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 2008 WL 682174 (D. Minn. 2008) ........................................................................................... 21 In re King Resources Co. Sec. Litig., 420 F. Supp. 610 (D. Colo. 1976) ............................................................................................. 32 In re Linerboard Antitrust Litig., 292 F. Supp. 2d 644 (E.D. Pa. 2003) ........................................................................................ 18 In re MRRM, P.A., 404 F.3d 863 (4th Cir. 2005) ..................................................................................................... 26 In re NASDAQ Market-Makers Antitrust Litig. 187 F.R.D. 465 (S.D.N.Y. 1998) .............................................................................................. 35 In re Nat’l Football League Players’ Concussion Injury Litig., 2018 WL 1635648 (E.D. Pa. 2018) ........................................................................................... 36 In re Neomedic Pelvic Repair Sys. Prods. Liab. Litig., 999 F. Supp. 2d (J.P.M.L. 2014) ................................................................................................ 2 In re Nuvaring Prods. Liab. Litig., 2014 WL 7271959 (E.D. Mo. 2014) ....................................................................... 21, 25, 33, 34 In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 2010, 2016 WL 6215974 (E.D. La. 2016) ................................................................................... passim In re Oil Spill by the Oil Rig “Deepwater Horizon”, 2016 WL 614690 (E.D. La. 2016) ............................................................................................ 18 In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283 (3d Cir. 1998), cert. denied, 525 U.S. 1114 (1999) ............................................ 23 In re Royal Ahold N.V. Securities & Erisa Litig., 461 F. Supp. 2d 383 (D. Md. 2006) .................................................................................... 21, 35 In re Serzone Prods. Liab. Litig., 2007 WL 7701901 (S.D.W. Va. 2007) .............................................................................. passim In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 268 F. Supp. 2d 907 (N.D. Ohio 2003) ..................................................................................... 35


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In re Syngenta AG MIR 162 Corn Litig., 2015 WL 2165341 (D. Kan. 2015) ........................................................................................... 25 In re Tyco Int’l, Ltd., 535 F. Supp. 2d 249 (D.N.H. 2007) .......................................................................................... 35 In re Vioxx Prods. Liab. Litig., 760 F. Supp. 2d 640 (E.D. La. 2010) ................................................................................. passim In re Visa Check/Mastermoney Antitrust Litig., 297 F. Supp. 2d 503 (E.D.N.Y. 2003) ....................................................................................... 35 In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319 (S.D.N.Y. 2005) ....................................................................................... 35 Jenson v. First Trust Corp., 2008 WL 11338161 (C.D. Cal. 2008) ................................................................................. 31, 32 Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974) ......................................................................................... 25, 26, 33 Jones v. Dominion Resources Services, Inc., 601 F. Supp. 2d 756 (S.D.W. Va. 2009) ....................................................................... 20, 26, 33 Kay Co. v. Equitable Production Co., 749 F. Supp. 2d 455 (S.D.W. Va. 2010) ............................................................................. 20, 35 Lewis v. Johnson & Johnson, 601 Fed. App’x 205 (4th Cir. 2015) ......................................................................................... 14 Muhammad v. Nat’l City Mortgage, Inc., 2008 WL 5377783 (S.D.W. Va. 2008) ..................................................................................... 20 Smith v. Krispy Kreme Doughnut Corp., 2007 WL 119157 (M.D.N.C. 2007) .......................................................................................... 22 Weiss v. Mercedes-Benz of N.Am., Inc., 899 F.Supp. 1297 (D.N.J. 1995) ............................................................................................... 23


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Statutes

28 U.S.C. § 1407 ............................................................................................................................. 1 Pre-Trial Orders AMS MDL 2325 PTO 4…………………………………………………………………………...5 AMS MDL 2325 PTO 77 (amended by PTO 174)……………………………………………….19 Bard MDL 2187 PTO 33…………………………………………………………………………..5 Bard MDL 2187 PTO 84 (amended by PTO 134)……………………………………………….19 BSC MDL 2326 PTO 4……………………………………………………………………………5 BSC MDL 2326 PTO 52 (amended by PTO 110)………………………………………………...19 Coloplast MDL 2387 PTO 2……………………………………………………………………….5 Coloplast MDL 2387 PTO 32 (amended by PTO 59)…………………………………………….19 Cook MDL 2440 PTO 4…………………………………………………………………………...5 Cook MDL 2440 PTO 12 (amended by PTO 45)…………………………………………………19 Ethicon MDL 2327 PTO 4………………………………………………………………………...5 Ethicon MDL 2327 PTO 62 (amended by PTO 134)……………………………………………..19 Neomedic MDL 2511 PTO 7………………………………………………………………………5 Neomedic MDL 2511 PTO 23……………………………………………………………………19


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MEMORANDUM IN SUPPORT OF THE COMMON BENEFIT FEE AND COST COMMITTEE’S

PETITION FOR AN AWARD OF COMMON BENEFIT ATTORNEYS’ FEES I. INTRODUCTION AND FACTS.

The pelvic mesh multi-district litigations (“MDLs”) pending before this Court are

unprecedented. What began with the Judicial Panel on Multidistrict Litigation’s order

consolidating 36 individual cases involving the Avaulta line of pelvic organ prolapse repair

devices—sold by C.R. Bard, Inc. (“Bard”)—in 2010, ultimately led to the consolidation of seven

related multidistrict litigations (“MDLs”) in the Southern District of West Virginia.1

As pelvic mesh cases began to be filed against various pelvic mesh defendants in different

federal courts, the firms involved in leadership came together to discuss potential MDL strategy.

In light of the presence of numerous cases where a single plaintiff was implanted with multiple

products, and the similar defects and complications associated with the various products, the firms

involved in the leadership of the litigation decided to request the JPML to send all of the pelvic

mesh cases to this Court for coordination pursuant to 28 U.S.C. § 1407. The JPML agreed, holding

that the presence of several common fact issues shared by all MDLs, and the fact that many

individual cases involved the implantation of multiple products from different manufacturers,

supported centralization of all of these products before the same Court. In re American Med. Sys.,

Inc., et al., Pelvic Repair Systems Prods. Liab. Litig., 844 F. Supp. 2d 1359, 1360-61 (J.P.M.L.

2012) (“The actions in each MDL share factual issues arising from allegations of defects in pelvic

surgical mesh products manufactured by AMS, Boston Scientific, and Ethicon, respectively.

Centralization therefore will eliminate duplicative discovery; prevent inconsistent pretrial rulings;

1 In re Avaulta Pelvic Support Sys. Prods. Liab. Litig. (later expanded to include a range of other pelvic repair mesh devices sold by Bard, and renamed the C.R. Bard, Inc. Pelvic Repair Sys. Prod. Liab. Litig.), 746 F.Supp.2d 1362, MDL No. 2187 (J.P.M.L. 2010).


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and conserve the resources of the parties, their counsel and the judiciary.”; “Chief Judge Joseph

R. Goodwin of that district is currently presiding over MDL No. 2187, which involves claims of

defects in similar pelvic surgical mesh products, and is uniquely situated to preside over the similar

claims in these three MDLs. The pelvic surgical mesh products at issue in MDL Nos. 2325, 2326,

and 2327 are used to treat similar conditions as those at issue in MDL No. 2187, and they have

allegedly resulted in similar injuries…. Finally, a number of these actions are brought by plaintiffs

who were implanted with multiple products made by multiple manufacturers. Centralization of the

three MDLs in one court will allow for coordination of any overlapping issues of fact in such

multi-product, multi-defendant actions.”).

At the request of the Plaintiffs, the MDL Panel sent four additional MDLs to this Court in

2012, another in 2013, and a seventh MDL in 2014.2 These seven (7) related pelvic mesh MDLs

involved different medical device manufacturers along with other related defendants, and included

dozens of related pelvic mesh devices.3 Never before in the history of MDL practice has the JPML

sent multiple, large-scale product liability MDLs involving different products and manufacturers

to a single MDL court for inter-MDL coordinated proceedings. The pelvic mesh litigation

coordinated before this Court ultimately grew to include 104,836 filed cases, comprising one of

the largest mass tort litigations in history.4

2 In re American Med. Sys., Inc., et al., Pelvic Repair Systems Prods. Liab. Litig., 844 F. Supp. 2d 1359, MDLs Nos. 2325, 2326, 2327 (J.P.M.L. 2012) (3 separate MDLs); In re Coloplast Corp. Pelvic Repair Support Sys. Prods. Liab. Litig., 883 F. Supp. 2d 1348, MDL 2387 (J.P.M.L. 2012); In re Cook Medical, Inc., Pelvic Repair Sys. Prods. Liab. Litig., 949 F. Supp. 2d 1373, MDL 2440 (J.P.M.L. 2013); In re Neomedic Pelvic Repair Sys. Prods. Liab. Litig., 999 F. Supp.2d, MDL 2511 (J.P.M.L. 2014). 3 For example, the Bard MDL 2187 involved claims against two international medical device companies (C.R. Bard, Inc. and subsidiaries of Covidien, PLC (now Medtronic)), both of which represented by different counsel. 4 Illustrating the impact of this litigation, the filing fees ($450 per case) for this number of cases totals $47,176,200.


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As explained in the Plaintiffs’ Proposed Counsel Organizational Structure (a copy of which

is attached hereto as Exhibit 1), which was submitted to the Court on March 17, 2012, the common

medical, scientific and legal claims and theories, common defenses, and common experts, as well

as the presence of numerous plaintiffs implanted with different defendants’ products, called for a

singular “cross-MDL” Plaintiffs’ leadership structure. The Proposed Counsel Organizational

Structure was vetted and agreed upon by every attorney who was included in the proposal. As

stated in the Proposed Counsel Organizational Structure, “[t]his [singular leadership] structure is

the product of numerous meetings and many more conversations by attorneys from across the

country who have devoted a substantial amount of time, effort and resources into the investigation

and development of these cases, and who are committed to working together for the mutual

interests of their respective clients. . . . The serious health risks generally associated with these

women’s pelvic repair products also warrant legal inquiry that is not confined to a single product

or manufacturer. . . . [T]he problems associated with transvaginal mesh products are inherent in

the use of mesh in the female pelvic region, and thus are not limited to any one product. Instead,

these are issues that need to be explored and addressed globally. Many experts for both Plaintiffs

and Defendants will traverse company and product lines. The efficient conduct of these cases will

require coordination by Plaintiffs’ counsel across MDL lines, while still maintaining the [multiple]

MDL’s. Additionally, discovery relating to corporate liability issues will involve common themes,

and coordination between the four MDL’s will be beneficial.” Exhibit 1. The Proposed Counsel

Organizational Structure further stated as follows:

The interrelationship between these products is but one significant issue that lends itself to coordinated investigation across MDL lines. . . . In light of the interrelationship between the products, the serious health problems generally associated with these devices, and the commonality of the defenses anticipated in every case, a coordinated and unified leadership that spans the four


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related pelvic repair product MDL’s before this Court is essential to the effective and efficient prosecution in these cases. . . . Perhaps most importantly, because of the interrelationship between these MDL’s in terms of common product defect allegations, similar injuries, and the prevalence of cases involving multiple products by the various defendants, the leadership structure in these MDL’s should be composed of attorneys who have the ability and the expressed desire to work with one another in a concerted effort to seek a timely and just resolution of these cases. . . . As set forth in more detail below, the undersigned propose a Coordinating Co-Lead Counsel, an Executive Committee made up of Co-Leads for each MDL, and a singular PSC all to coordinate across MDL lines. If such proposal is accepted by the Court, then the Coordinating Co-Lead Counsel in conjunction with the Executive Committee will be able to work across MDL lines in conjunction with one PSC to determine which lawyers are best suited to handle a given Task. . . . Many of these tasks will not be MDL-specific, but rather will be common issues that will need a coordinated effort. It is also the intent that the Coordinating Co-Lead Counsel will be in a position to determine when separate groups from the PSC should be designated to work on MDL-specific issues that do not cross MDL lines. However, it is vital to this proposal that there be a cohesive and coordinated structure that spans these four related MDL’s so as to best achieve the efficiency and effectiveness of representation that will move this litigation forward. [T]his proposal calls for a singular PSC to coordinate across MDL lines in four separate MDL’s, each of which involves a different manufacturer (and related defendants in some cases) and several different products. . . . The undersigned submit that a PSC composed of a significant number of attorneys is necessary to accommodate the large amount of work that will be necessary to prepare these cases effectively, and with many coordinated litigation activities occurring simultaneously across MDL lines. At the Initial Case Management Conference in the first of the additional related pelvic mesh

MDLs transferred to this Court, the Court made clear its intent to coordinate and consolidate across

MDL lines to the fullest possible extent, stating “[i]n its most simplistic form, we have similar

pelvic mesh products manufactured by different defendants that allegedly caused a variety of

injuries to women. We suspect and we hope that there are commonalities among the four MDLs,

and [Magistrate] Judge Stanley and I believe that the most efficient way to handle the four MDLs,

particularly for discovery purposes, is to coordinate them as much as possible. . . . I believe that


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the most efficient way to handle the four MDLs is to consolidate as much as possible.” (April 13,

2012 Hearing T., 33:1-15). The Court similarly observed that “[a] coordinated and unified

Plaintiffs’ leadership team that spans the four related pelvic repair mesh MDLs before this Court

is essential to the efficient, effective prosecution . . . of this case.” (Id., 22:19-22).

The Plaintiffs’ lawyers involved in the litigation from the outset foresaw the onerous task

that lay ahead and assembled a Plaintiffs’ Steering Committee (“PSC”) of 61 attorneys from law

firms across the country, who were ultimately appointed and assigned by the Court the

responsibility of marshaling resources and leading this sprawling litigation under a unified

leadership structure. The Court entered Orders in each of the MDLs stating that “[i]t shall be the

responsibility of Coordinating Co-Lead Counsel to work across MDL lines in conjunction with

the Executive Committee named below to determine which attorneys are best suited to handle a

given task. . . .” and appointing “[a] singular PSC to coordinate across MDL lines in the [] separate

pelvic mesh MDLs before this court. . . .”.5

As envisioned and directed by the Court, the Court-appointed PSC coordinated and

collaborated across MDL lines to plan the litigation strategy, develop theories and confront legal

issues, identify experts, and ultimately bear the cost and expended the labor necessary to develop

the general liability cases against numerous products made and sold by a variety of corporate

defendants. This singular PSC and leadership structure enabled such coordinated development of

litigation strategy and theories and allowed the work product from one MDL to be utilized across

product and manufacturer lines. Important legal decisions by the Court and by counsel impacted

all MDLs due to the commonality of the products and issues involved. This single, unified

leadership structure was also necessary to avoid potential conflicts and cross-purpose work.

5 Bard MDL 2187 PTO 33, AMS MDL 2325 PTO 4, BSC MDL 2326 PTO 4, Ethicon MDL 2327 PTO 4, Cook MDL 2440 PTO 4, Coloplast MDL 2387 PTO 2, Neomedic MDL 2511 PTO 7.


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As anticipated, the time, effort and expense of simultaneously pursuing and developing

multiple legal theories against a range of products manufactured and sold by a disparate group of

defendants, has been enormous.

The defendants in these MDLs are several of the largest medical device manufacturers in

the world, and this litigation has been vigorously defended by this country’s largest and most

experienced medical device defense law firms. Prosecuting multiple MDLs simultaneously before

one court presented unique logistical and procedural difficulties and taxed the resources of the

firms leading this litigation. To address the economic disparity between the parties, the PSC firms

were required to expend tens of millions of dollars to prosecute this massive litigation. The PSC

firms contributed a total of $17,825,000 in common benefit assessments, which were used to fund

the litigation generally. “Held costs” in the amount of $28,986,811.38 were recognized by the FCC

as common benefit, which have not yet been reimbursed out of the MDL fund. An additional

$12,037,448.66 has been paid from the common benefit fund as costs associated with general

expert fees, special master fees, data warehousing and management fees, and to the Court-

appointed accountant overseeing the MDL fund. These costs continue to be incurred and some of

these costs continue to be paid from the common benefit fund while additional costs remain as

held costs.

At the outset, Plaintiffs’ leadership undertook to define the parameters of the litigation

through Master Pleadings, Plaintiff Profile Forms and Plaintiff Fact Sheets, and pushed the

litigation forward through a series of procedural and scheduling orders. After establishing these

baseline documents and schedules, Plaintiffs’ leadership undertook the onerous process of

discovery.


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Discovery in these cases was among the first areas to be tackled by leadership.

Electronically-Stored Information protocols and search parameters, plaintiff and defendant fact

sheets/profile forms, joint records collection, protective orders, and procedures for the collection

and preservation of pathology were the subject of intense negotiation, and in several instances,

disputes with defendants. Because certain of the Defendants had been involved in prior litigation

relating to the same products, Plaintiffs’ leadership undertook the motions practice necessary to

obtain documents produced by those Defendants in those prior cases over their objection. The

number of different products, defendants, and related third parties (materials processors,

component or materials manufacturers), necessitated multiple rounds of written discovery and ESI

term search requests to defendants related to a variety of subjects and from a number of non-party

sources. Plaintiffs’ leadership established and funded the shared electronic document depository

(Crivella West) where all defense-produced documents and other important materials were made

accessible to all MDL plaintiffs’ counsel in searchable format. Plaintiffs’ leadership identified the

important issues in these cases and created “issue codes” for purposes of document review, and

documents were reviewed and “coded” according their relevance. Plaintiffs’ leadership and other

Participating Counsel6 reviewed and analyzed Defendants’ discovery responses and objections and

handled disputes regarding confidentiality, privilege and work product claims by the defense,

typically by way of informal meet and confer, but occasionally necessitating motions practice

before the Magistrate Judge or the Court. Other discovery disputes necessitated numerous meet

and confers with defense counsel, discovery conferences with the Court’s Magistrate Judge, and

motions to compel or responses to motions for protective order or motions to quash. The

6 As used in this Petition, “Participating Counsel” has the same definition as that set forth in the Agreed Order Regarding Management of Timekeeping, Cost Reimbursement and Related Common Benefit Issues, to wit: “‘Participating Counsel’ are counsel who subsequently desire to be considered for common benefit compensation. . . .”


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production of documents in these cases was voluminous. To date, more than 21,504,590

documents totaling over 199,740,958 pages have been produced across the pelvic mesh MDLs,

and production is on-going in some of the MDLs. Plaintiffs’ leadership was responsible for the

oversight and coordination of this massive review effort and bore responsibility for culling the

thousands of documents used in expert preparation and the preparation of these cases for trial, and

at trial, and identification of important documents for use by other attorneys with cases in these

MDLs.

Depositions were taken in these MDLs by Plaintiffs’ leadership and other Participating

Counsel of a variety of former and current employees of the defendants, including representatives

from sales and marketing, regulatory, post-market surveillance, manufacturing, research and

development/product design, risk management, as well as managerial and executive employees.

More than two-hundred (200) individual and 30(b)(6) corporate depositions were eventually taken

of the Defendants in these MDLs. Plaintiffs fought multiple “apex” motions relative to depositions

sought of Defendants’ executive employees. The cases also involved significant third-party

depositions, including depositions of “key opinion leader physicians,” representatives of medical

organizations who issued “position statements” in support of the products at issue, and various

individuals and entities that participated in the design or testing of the devices or that manufactured

or processed components or materials used in the pelvic mesh products.

The scope and complexity of these MDLs also complicated expert discovery. Plaintiffs’

leadership was required to identify and cultivate general experts from an array of scientific and

medical fields, from biomaterials, pathology, physicians (including pathologists, pelvic pain

specialists, urologists, gynecologists and Female Pelvic Reconstructive Surgeons) to regulatory.


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The theories and concepts relating to the defective design of the TVM devices in these

MDLs – what made these devices problematic in the female pelvis – required knowledge of the

applicable anatomy, medicine, and the scientific principles and literature applicable to synthetic

and biologic surgical mesh devices. Proving to a jury the complex scientific and medical reasons

that these products caused the Plaintiffs’ injuries required education. Plaintiffs’ leadership

developed and presented expert reports addressing the important scientific product defect

principles, such as the in vivo degradation of polypropylene, chronic and excessive foreign body

reaction to the mesh, inadequate pore size (scar-induced mesh contracture), mechanical instability,

anatomical mismatch, mesh arm “sawing,” and asymmetrical mesh contracture utilized across all

MDLs.

Due to the number of products and defendants involved, as well as the number of cases

that were ultimately worked up towards potential trial, the plaintiffs’ leadership were required to

develop numerous qualified experts from a relatively limited pool. Because much of the innovation

related to these products occurred in Europe, several of the foremost plaintiffs’ experts were in

Europe, which entailed additional expense and effort as a result of travel, translation and

compliance with foreign applicable law regarding discovery. Several of these experts conducted

extensive laboratory testing of the materials and products involved utilizing a variety of laboratory

and scientific equipment, and plaintiffs’ leadership oversaw the issuance of extensive reports

outlining, in detail, these experts’ medical and scientific findings and opinions. For example,

biomaterials experts conducted testing to demonstrate scientifically the phenomenon of mesh

degradation, showing through microscopic photographs actual images of degraded mesh that had

been removed from the bodies of plaintiffs. The potential for mesh degradation, and the clinical

effects, was vigorously disputed by the defense. Establishing this important theory through


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scientific testing (which was admitted despite repeated Daubert challenges) was key to conveying

these matters to a jury. Pathology experts examined numerous explanted mesh samples and

pathology slides from plaintiffs under electron microscopy to explain the chronic negative effects

of body’s reaction to the mesh and the results of scarification of tissue due to the mesh design.

Plaintiffs’ experts conducted testing and developed demonstrative exhibits, including 3D models,

to show how the design of these products caused asymmetrical contracture, which pulled the mesh

and caused chronic pain and sexual dysfunction. These tests and exhibits demonstrated the experts’

theories and opinions in a tangible way.

Ultimately, Plaintiffs’ leadership identified and served 84 Rule 26 Reports for 52 general

plaintiffs’ experts. As anticipated from the outset, many of Plaintiffs’ experts designated by

leadership to provide general testimony crossed MDL lines. Nineteen of Plaintiffs’ 52 experts

(36.5%) provided general expert testimony in more than one MDL, while nine (17.3%) provided

testimony in more than three or more MDLs.

Defendants likewise had their own respective teams of experts, and Plaintiffs’ leadership

was responsible for preparing for and taking their depositions. One hundred nine (109) general

experts were identified by the defense in these cases, and nearly all of them were deposed by

Plaintiffs’ leadership, some of them multiple times. Many of the defense experts issued

voluminous reports, citing to reams of scientific testing and clinical and animal study results, all

of which had to be meticulously reviewed and analyzed by Plaintiffs’ leadership, and ultimately

addressed by way of cross-examination, Daubert motions and testimony from Plaintiffs’ experts.

While some of the MDL defendants undertook early efforts to attempt to compromise, most

made clear that they had no interest in settlement, at least not without first trying multiple cases.

This necessitated the preparation of numerous cases for trial across the MDLs, which process was


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handled and overseen by Plaintiffs’ leadership. Some of the trial selection cases were resolved

prior to trial, but only after all of the extensive pre-trial work had been done and the cases were

ready for trial.7 Preparing a case for trial in these MDLs was an expensive and difficult undertaking

in light of the complexity of the issues involved, and the number of fact and expert witnesses

whose testimony is necessary to meet the burden of proof and to address the litany of defenses

asserted. Every MDL trial case entailed additional rounds of motions and briefing on procedural

and substantive legal issues, arguments over deposition designations and other evidence to be

offered at trial and a variety of other pre-trial issues.

Following initial “bellwether” trials, the Court ordered several successive “waves” of cases

to be prepared for trial in several of the MDLs. Each of these waves consisted of dozens, if not

hundreds, of individual plaintiffs. These trial waves required an extensive amount of orchestration

and effort in a condensed time frame by Plaintiffs’ leadership. These hundreds of wave cases

necessitated the identification and depositions of numerous general experts for both plaintiff and

defense, and an intensive general motions practice that involved briefing of dozens of additional

dispositive, Daubert and in limine motions. The same legal issues had to be addressed by Plaintiffs’

leadership under numerous different states’ substantive law. Responses to these motions prepared

by leadership were then provided to other MDL counsel, and served as the template for responses

in future trial selection or remanded cases.

Plaintiffs’ leadership oversaw the preparation of case-specific discovery to be served by

individual plaintiffs on the defendants in the wave process and led efforts to ensure consistent

responses from the Defendants to this discovery. To assist the several firms outside of leadership

who had cases included in the bellwether process and later in the trial waves, Plaintiffs’ leadership

7 The FCC also recognized as common benefit time expended preparing for and trying cases in certain state court venues, provided that the cases were the first involving the product at issue to be tried.


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conducted, and continue to conduct, in-person educational sessions in various locations throughout

the country to help educate these attorneys about the liability case generally, as well as how to

handle the individual case-specific issues in their cases, such as preparing for and taking plaintiff

and treating physician depositions and responding to the motions anticipated from the defense.

Educational materials, including legal and factual outlines, template response briefing, sample

expert reports, collections of important documents, corporate deposition transcripts and exhibits,

sample plaintiff and doctor depositions, deposition outlines, trial exhibits and trial transcripts, were

prepared by leadership and provided to or made available to counsel for the MDL plaintiffs. Expert

reports and expert depositions for both Plaintiffs’ and Defendants’ general experts, as well as all

corporate and third-party depositions, were also made available to MDL Plaintiffs’ counsel by way

of the Crivella West shared document depository.

During the course of the pelvic mesh MDLs pending in this Court, volumes of pre-trial,

trial and post-trial motions have been argued and decided and orders have been issued by the Court

pursuant to the laws of many different states, including: Daubert motions against nearly every

expert (and other witnesses); summary judgment motions on issues relating to design defect,

punitive damages, warnings sufficiency, the learned intermediary doctrine, preemption, statute of

limitations, general causation and specific causation; and numerous motions in limine seeking to

limit or exclude Plaintiffs’ evidence. Because certain of the defendants were affiliated corporate

entities, Plaintiffs’ leadership undertook the discovery and motions practice necessary to establish

liability on the part of each the named defendants, which resulted in important stipulations

regarding the liability of parent corporations for conduct of their subsidiaries. Plaintiffs’ leadership

briefed important procedural issues related to joinder, remand, choice-of-law, jurisdiction, venue

and Lexecon, and the Court’s ability to try MDL cases upon remand to other federal jurisdictions.


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Plaintiffs’ leadership handled the Daubert and dispositive responsive briefing, as well as Plaintiffs’

“offensive” summary judgment motions and reply briefing, and Plaintiffs’ motions in limine.

Important legal issues regarding consolidation of multiple MDL plaintiffs for purposes of trial

pursuant to Rule 42 were briefed and argued by leadership. Plaintiffs’ leadership also handled the

briefing regarding the exclusion of evidence regarding the FDA 510(k) clearance process. The

Court’s ruling on this motion proved a seminal ruling that impacted all of the MDLs. This critical

evidentiary ruling spurred a litany of related motions for reconsideration, motions for new trial and

evidentiary proffers across the MDLs, as well as grounds for appeal in multiple cases. Leadership

also prepared the briefing regarding the admissibility of important product-related evidence used

by all Plaintiffs. Hundreds of instructive opinions from the Court in these pelvic mesh MDLs are

available through online legal research sites, such as Westlaw, most of which were directly the

result of the work of Plaintiffs’ leadership.8

Several of the bellwether cases were resolved shortly before trial, but the pre-trial

preparation for these cases was no different than the cases that ultimately went to verdict. When

MDL bellwether cases were tried, the verdicts were subject to various post-trial motions and

eventually appealed. The appeals often involved amicus briefing by multiple interested third

parties due to the significance of the issues involved in this litigation. The extensive pre-trial

briefing (pre-trial orders, jury charges, evidentiary motions), trial briefing (motion for directed

verdict, evidentiary motions), and post-verdict briefing (motion for judgment as a matter of law,

motion for new trial) in the bellwether cases were handled primarily by Plaintiffs’ leadership.

8 For example, a recent Westlaw search of the terms “pelvic OR transvaginal WITHIN THE SAME SENTENCE AS mesh AND goodwin” within the West Virginia Federal Courts database yields 1,970 results.


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Plaintiffs’ leadership also handled the appellate briefing in these cases, and these rulings helped

shape the course of this litigation.

Lewis v. Johnson & Johnson, 601 Fed. App’x 205 (4th Cir.2015) (affirming grant of motion for judgment as a matter of law for Defendants)

Cisson v. C.R. Bard, Inc., 810 F.3d 913 (4th Cir. 2016) (affirming $2 million verdict for plaintiffs)

Huskey v. Ethicon, Inc., 848 F.3d 151 (4th Cir.2017) (affirming $3.2 million verdict for plaintiffs)

Eghnayem v. Boston Scientific Corporation, 873 F.3d 1304 (11th Cir. 2017) (affirming verdicts for four separate plaintiffs tried together in consolidated trial totaling $26.7 million)

Campbell v. Boston Scientific Corporation, 882 F.3d 70 (4th Cir. 2018) (affirming verdicts for four separate plaintiffs tried together in consolidated trial totaling $18.5 million)

The results of these post-trial motions and appellate rulings have likewise provided

instructive guidance for the participants in this MDL, as well as for future product liability MDLs.

Disparate legal and factual issues such as the propriety of consolidated, multi-plaintiff trials, the

admissibility of evidence related to FDA, statutes of limitations, gross negligence and punitive

damages, and the sufficiency of the evidence to sustain multi-million dollar verdicts on design

defect and failure to warn have been addressed and resolved in plaintiffs’ favor by the Fourth and

Eleventh Circuits, providing substantial benefit to all MDL claimants and further certainty across

MDL lines.

Plaintiffs’ leadership also coordinated efforts with attorneys who were handling related

litigation against the same defendants in various State courts across the country.

Eventually, and due in large part to the continuing efforts of the plaintiffs’ leadership and

the Court’s innovative approaches to move cases forward, the defendants, who had generally

resisted settlement discussions, began to consider resolution. However, resolution in these MDLs

has proven nearly as challenging as the litigation itself. The range of products involved, the varying

nature of the injuries or damages claimed by Plaintiffs, the “multi-product” issue, and the differing


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financial status and interest in resolution among the different Defendants presented difficulties in

resolutions that required perseverance and creativity by Plaintiffs’ leadership. Plaintiffs’

leadership coordinated efforts to conduct “censuses” of thousands of MDL cases in order to inform

the Court and the parties of the range of products and injuries involved. At the request of the

Court, Plaintiffs’ leadership has been involved in attempting to facilitate the settlement process for

other MDL firms. The Court has conducted multiple mandatory settlement conferences with

various Defendants in which Plaintiffs’ leadership has played an important role.

Through December 21, 2016, ninety-four law firms submitted more than 900,000 hours of

time for common benefit consideration, and the Court-appointed FCC has recognized a total of

679,191.20 of those hours as being for common benefit.

To date, tens of thousands of cases in these MDLs have resolved, which has resulted in

$366,102,875.06 in payments into the common benefit fund by Defendants to date.9 Based on the

number of cases that have been resolved pursuant to a Master Settlement Agreement but not yet

processed or that remain in the MDLs, it is anticipated that the common benefit fund will ultimately

equal or exceed $550,000,000.00.

II. COURT ORDERS RELATED TO COMMON BENEFIT FUND

The Court entered the same orders in each of the coordinated pelvic mesh MDLs relating

to the common benefit fund and common benefit work. As with the singular PSC appointed to

coordinate work in this litigation across MDL lines, the common benefit fund to compensate such

work was likewise established, coordinated and overseen on a cross-MDL basis.

On October 4, 2012, the Court entered the “Agreed Order Regarding Management of

Timekeeping, Cost Reimbursement and Related Common Benefit Issues,” which set forth the

9 Common benefit fund balance as of November 9, 2018.


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procedures, guidelines, and limitations for submission of applications for reimbursement for

common benefit fees and expenses. This Order appointed a CPA to receive and review all time

and expense records for all MDLs. Per the Order, the CPA was to be paid from common benefit

funds and to work with the Executive Committee and Co-Liaison Counsel to insure the accuracy

of submissions. The CPA was also required to “work with the Coordinating Co-Leads to manage

the litigation fund and administer the payment of the expenses (not fees) from the litigation fund.”

The Order provided that the cross-MDL Executive Committee was to make such assessments and

to receive and hold those funds as necessary to prosecute the interests of the pelvic mesh litigation.

Pursuant to the Court’s Order, common benefit assessments received from the members of the

singular PSC were to be deposited into a common benefit account. Likewise, reimbursement of

expenses requested from all MDLs were paid from the common benefit account at the direction of

the Coordinating Co-Lead Counsel. The Court directed attorneys to submit time and expense

records to the Court-appointed accountant on a periodic basis of every six weeks. The Order

provides that common benefit work includes “assignments made by Coordinating Co-Lead

Counsel and/or the Co-Lead of each MDL, who will work in consultation with each other to

facilitate the litigation.” As part of this Order, which was approved by all members of the PSC and

signed and submitted by all members of the Plaintiffs’ Executive Committee, counsel who desire

to be considered for common benefit compensation acknowledged – as a condition for such

consideration – that the Court will have “final, non-appealable authority regarding the award of

fees, the allocation of those fees and awards for cost reimbursements in this matter” and they “have

(or will have) agreed to and therefore will be bound by the court’s determination on common

benefit attorney fee awards, attorney fee allocations, and expense awards, and…knowingly and

expressly waive any right to appeal those decisions or the ability to assert the lack of


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enforceability of this Agreed Order or to otherwise challenge its adequacy.” (Emphasis

added).

On August 26, 2013, the “Agreed Order Establishing MDL [] Fund to Compensate and

Reimburse Attorneys for Services Performed and Expenses Incurred for MDL Administration and

Common Benefit” was entered, which provided for the sharing of the costs of services and

expenses by Participating Counsel. This Order established a 5% assessment of all claims across

all MDLs for payment of attorneys’ fees and approved common benefit expenses. The Order

requires this 5% assessment was to be withheld by Defendants from amounts paid on any Covered

Claim (covering all Defendants’ products) and paid directly into the MDL Fund as a credit against

the Settlement or Judgment. This Order incorporated and made binding the procedures and

guidelines set forth in the prior-filed “Agreed Order Regarding Management of Timekeeping, Cost

Reimbursement and Related Common Benefit Issues.”

The January 15, 2016 “Order Establishing Criteria for Applications to MDL Fund to

Compensate and Reimburse Attorneys for Services Performed and Expenses Incurred for MDL

Administration and Common Benefit and Appointment of Common Benefit Fee and Cost

Committee” appointed a Common Benefit Fee and Cost Committee (hereinafter, “FCC”) and set

forth the criteria by which common benefit fee applications were to be analyzed. This Order

incorporated by reference all prior common benefit orders.

The June 23, 2017 “Order re: Fee Committee Protocol” established the procedure and

further guidance for the FCC’s review of time and expenses submitted by counsel seeking common

benefit reimbursement.

III. ARGUMENT AND AUTHORITIES.

A. The District Court Has Broad Discretion in Awarding Common Benefit Fee.


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As experienced MDL Judge Eldon Fallon recognized in In re Vioxx Prods. Liab. Litig.,

760 F. Supp. 2d 640, 647-48 (E.D.La.2010), an award of common benefit fees to counsel who

provided work beneficial to all Plaintiffs is supported by the common fund doctrine, equity,

quantum meruit, as well as the inherent managerial authority afforded an MDL Court. The Court’s

inherent managerial authority necessarily includes the power to provide compensation for those

attorneys who provided common benefit work separate and apart from their fee agreements with

their respective clients. See, In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1016

(5th Cir. 1977) (“[I]f lead counsel are to be an effective tool the court must have means at its

disposal to order appropriate compensation for them. The court’s power is illusory if it is dependent

upon lead counsel’s performing the duties desired of them for no additional compensation…. The

interests to be served are too important to be left to volunteers (or draftees) who are unpaid in the

sense that they get nothing additional.”); In re Linerboard Antitrust Litig., 292 F. Supp. 2d 644,

653 (E.D. Pa. 2003) (“A necessary corollary to court appointment of lead and liaison counsel is

the power to assure that these attorneys receive reasonable compensation for their work….It is

well established that courts can impose liability for court-appointed counsel’s fees on all plaintiffs

benefitting from their services.”) (internal cites. omitted); See also, In re Genetically Modified Rice

Litig., 835 F.3d 822, 828 (8th Cir. 2016) (“No party challenges the propriety of the Common

Benefit Order or the ‘well established’ authority of a district court to compensate leadership

lawyers by ordering funds to be set aside from recoveries obtained by other plaintiffs in

multidistrict litigation.”). The managerial discretion is critical for any MDL judge, particularly

one charged with overseeing more than 100,000 cases. In re Oil Spill by the Oil Rig “Deepwater

Horizon”, 2016 WL 614690, *7 (E.D. La. 2016) (“As multidistrict litigation is a ‘special breed of

complex litigation’ wherein case management serves as the ‘engine that drives disposition on the


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merits,’… greater deference is afforded to the MDL Court in connection with administrating the

proceedings.”) (internal cits. omitted).

In In re Serzone Prods. Liab. Litig., 2007 WL 7701901, *2 (S.D.W. Va. 2007) (J.

Goodwin), this Court observed that MDL trial courts are accorded wide discretion in weighing the

different criteria touching upon the value of common benefit services provided by counsel.

B. The Five-Percent (5%) Holdback is an Appropriate Amount to be Awarded to Plaintiffs’ Participating Counsel for Fees and Reimbursement of Expenses.

As set forth above, the “Agreed Order Establishing MDL . . . Fund to Compensate and

Reimburse Attorneys for Services Performed and Expenses Incurred for MDL Administration and

Common Benefit” (“Holdback Order”) established a five-percent (5%) assessment for payment of

attorneys’ fees and approved common benefit expenses.10 Defendants were ordered to pay the

assessment directly into the MDL Fund.

The Holdback Order, which expressly incorporated prior common benefit orders, was

approved and agreed to by the Coordinating Co-Leads, Executive Committee, Co-Leads and the

Plaintiffs’ Steering Committee, and was signed and submitted to the Court by the Coordinating

Co-Leads, Co-Leads and Co-Liaison Counsel.

In In re Diet Drugs, 582 F.3d 524, 540 (3d Cir. 2009), the Third Circuit observed that

“[w]hen calculating attorneys fees in [cases involving a common fund], the percentage of recovery

method is generally favored.” Although the Fourth Circuit has not specifically addressed the

question of how to determine the appropriate attorney’s fee in a multi-plaintiff, common fund

setting, district courts within the Circuit, including this Court, have applied the percentage of

10 Bard MDL 2187 PTO 84 (amended by PTO 134), AMS MDL 2325 PTO 77 (amended by PTO 174), BSC MDL 2326 PTO 52 (amended by PTO 110), Ethicon MDL 2327 PTO 62 (amended by PTO 134), Cook MDL 2440 PTO 12 (amended by PTO 45), Coloplast MDL 2387 PTO 32 (amended by PTO 59), Neomedic MDL 2511 PTO 23.


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recovery method, sometimes using a “rough” lodestar as a cross-check. Kay Co. v. Equitable

Production Co., 749 F. Supp. 2d 455, 462 (S.D.W. Va. 2010) (J. Goodwin) (“Courts have

increasingly favored the percentage method for calculating attorneys’ fees in common fund

cases.”). Under the percentage method, the court awards fees as a reasonable percentage of the

common fund to compensate attorneys who recovered an identifiable sum by awarding them a

reasonable fraction of that sum. In re Vioxx Prods. Liab. Litig., 760 F. Supp. 2d 640, 650 (E.D. La.

2010). The lodestar involves consideration of the number of hours reasonably expended on the

litigation multiplied by an hourly rate. Kay Co., supra at 462.

In a decision involving a class action fee award, this Court observed that “[t]he percentage

method has overwhelmingly become the preferred method for calculating attorneys’ fees in

common fund cases,” but noted the use of lodestar as a cross-check for the reasonableness of the

percentage fee. Jones v. Dominion Resources Services, Inc., 601 F.Supp.2d 756, 758 (S.D.W. Va.

2009). See also, Kay Co., supra at 462 (J. Goodwin) (“Courts have increasingly favored the

percentage method for calculating attorneys’ fees in common fund cases,” and applying a lodestar

cross-check); In re Serzone, 2007 WL 7701901 at *1 (S.D.W. Va. 2007) (J. Goodwin) (“Courts

inside and outside this district also frequently use a ‘percentage of the fund’ method with a

‘lodestar cross check.’”); Deem v. Ames True Temper, Inc., 2013 WL 2285972, *5 (S.D.W. Va.

2013) (J. Goodwin) (“there is a clear consensus among the federal and state courts, consistent with

Supreme Court precedent, that the award of attorneys’ fees in common fund cases should be based

on a percentage of the recovery.”); Muhammad v. Nat’l City Mortgage, Inc., 2008 WL 5377783

(S.D.W. Va. 2008) (J. Copenhaver) (“percentage of fund approach is the better-reasoned and more

equitable method of determining attorneys’ fees in [common fund] cases.”); In re Royal Ahold

N.V. Securities & Erisa Litig., 461 F. Supp. 2d 383, 385 (D. Md. 2006) (“While the Fourth Circuit


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has not yet definitively addressed the issue, other district judges in this circuit have suggested a

flexible analysis that uses the percentage of recovery method but applies the lodestar method as a

cross-check, recognizing that ‘both are useful tools for trial courts to use to inform and calibrate a

judgement as to a fair and reasonable [class action] fee award.’”). This same methodology –

percentage with a rough lodestar analysis as a cross-check – is consistently employed in MDL

mass tort product liability actions. In re Actos (Pioglitazone) Prods. Liab. Litig., 2017 WL

3033134, *26 (W.D. La. 2017) (“Virtually all of the recent common fund fee awards in district

courts in the Fifth Circuit – whether MDL or class action – have used the percentage method, with

an overlay analysis of reasonableness….”); In re Nuvaring Prods. Liab. Litig., 2014 WL 7271959,

*2 (E.D. Mo. 2014) (noting “well-established” use of percentage method to determine attorney’s

fees in common fund case, and that “courts may then choose to use the lodestar method to cross-

check the fairness of a percentage of the fund award.”); In re FEMA Trailer Formaldehyde Prods.

Liab. Litig., 2013 WL 1867117, *3 (E.D. La. 2013) (“The [blended] approach entails the use of a

percentage, the reasonableness of which is analyzed in light of the Johnson factors, as well as

comparison with published data regarding such awards, and ‘cross-checked’ against a rough

lodestar analysis.”); In re Avandia Marketing, Sales Practices and Prods. Liab. Litig., 2012 WL

6923367, *2 (E.D. Pa. 2012) (“In common fund cases, attorneys’ fees typically are awarded as a

percentage of the fund, and an abbreviated lodestar cross-check is used to assess the reasonableness

of the proposed fee.”); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 2008

WL 682174, *6 (D. Minn. 2008) (MDL court applied percentage method with lodestar as cross-

check).

In assessing the reasonableness of a percentage fee award, courts typically follow a four-

step analysis: (1) assess the value of the benefits of the settlement; (2) examine awards for common


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benefit work in comparable cases; (3) analyze the reasonableness of the percentage utilizing the

appropriate criteria, in this case the “Barber” factors addressed below, in light of the facts and

circumstances of the case; and (4) perform an abbreviated lode-star cross-check. See, e.g., Vioxx,

supra at 652; In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April

2010, 2016 WL 6215974, *15 (E.D. La. 2016). See also, In re Serzone, 2007 WL 7701901 at *2-

*5; Smith v. Krispy Kreme Doughnut Corp., 2007 WL 119157, *1 (M.D.N.C. 2007) (applying

Barber factors to a percentage attorney’s fee award); Edmonds v. U.S., 658 F. Supp. 1126, 1143

n.37 (D.S.C. 1987) (“The [Barber] factors … can be used in analyzing a fee either based on the

percentage method, or the lodestar method.”).

C. The Value and Scope of the Benefit Provided to MDL Claimants Supports an Award of the Previously-Ordered Five-Percent (5%) Holdback for Compensation for Common Benefit Fees and Expenses.

As recognized in Deepwater Horizon, 2016 WL 6215974 at *18, “the most critical factor

in determining the reasonableness of a fee award is the degree of the success obtained,” and

“[s]uccess is determined not only by the gross amount of the recovery but also by the number of

individuals who benefit from the class settlement, the degree to which it provides them with full

compensation for their injuries, and the extent to which the settlement benefits the public at large.”

(citing, inter alia, Vioxx, 760 F. Supp. 2d at 657-68; In re Diet Drugs Prods. Liab. Litig., 553

F.Supp.2d 442, 472-73 (E.D.Pa.2008), aff’d, 582 F.3d 524 (3rd Cir.2009)). Accord Hensley v.

Eckerhart, 461 U.S. 424, 436 (1983). The value of a settlement fund includes all monetary amounts

actually paid (or irrevocably deposited into a fund for payment) to or for the benefit of plaintiffs

in the litigation. Vioxx, 760 F. Supp.2d at 652. Here, the current total value of all settlements and


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judgments subject to the common benefit assessment is approximately $7,250,000,000, which

includes the resolution of tens of thousands of individual claims.11

Where, as here, the settlement involves payments over a period beyond the point the

common benefit fee is determined, the settlement fund also includes a “reasonable estimate” of the

amount of future payments that are expected to be made to the plaintiffs. Deepwater Horizon,

supra at *15 (“Where the settlement provides benefits on a ‘pay-as-you-go’ basis over a period

beyond the point that a common benefit fee is to be awarded, the settlement fund also includes a

reasonable estimate of the amount of future payments that will be made to claiming class

members.”); In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 334 (3d Cir.

1998), cert. denied, 525 U.S. 1114 (1999) (the percentage method requires court to make a

“reasonable estimate” of settlement value to be received in future). Accord Weiss v. Mercedes-

Benz of N.Am., Inc., 899 F. Supp. 1297, 1304 (D.N.J. 1995) (addressing future and contingent

payments in analyzing amount of settlement recovered in analyzing attorney’s fees request). Based

upon the number of cases that have been resolved pursuant to a master settlement agreement and

cases remaining in the litigation, and in light of the value of prior settlements, it is the FCC’s

reasonable expectation that the final total value of all settlements and judgments will be

approximately $11,000,000,000.

The value of the benefit provided to the clients in this litigation is substantial and supports

an award of the previously-ordered holdback amount of 5% as compensation for fees and expenses.

D. The Previously-Ordered Five-Percent (5%) Holdback for Fees and Expenses Falls Well Within the Benchmark Percentage for Similar Cases.

11 As noted in In re Avandia, 2012 WL 6923367 at *5, the total amount of the aggregate settlements facilitated by counsel’s collective common benefit efforts is the practical equivalent of a distinct common benefit fund in the class action context. The court in Avandia noted that individual MDL plaintiffs had received considerable payments in settlement of their claims that would not have come about but for the common benefit work performed.


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The next step in the process is to assess whether the requested percentage fee is in line with

other fee awards in similar litigations. As noted in In re Vioxx, supra at 654-55, “a reasonable

common benefit assessment or award can vary from MDL to MDL…There is no mathematical

formula for deriving a ‘correct’ amount,” and agreeing with plaintiffs’ leadership there that “a

reasonable benchmark percentage is a flexible concept.” Because the total anticipated recoveries

– for all plaintiffs in all seven pelvic mesh MDLs – exceed $1 billion, the aggregate settlements in

this litigation make this what has been referred to as a “super-mega-fund” case. In re Actos, supra

at *27 (describing “mega-fund” cases as recoveries exceeding $100 million, and “super-mega-

fund” cases as recoveries exceeding $1 billion). Although the court in In re Actos noted that the

number of super-mega-fund cases is relatively limited, the court’s research showed that the

average fee awards in those cases is 9.9%. Id.

In light of the Barber factors, discussed below, the 5% holdback previously ordered by the

Court is reasonable and is well within the benchmark percentage for comparable cases. In fact, this

holdback amount is decidedly on the low end of the range of percentage awards in similar

litigations. See, In re Serzone, surpa at *3 (J. Goodwin) (examining size of percentage fee awards

in several mass tort drug and device litigations in relation to amount of benefit procured and

amount of time invested by counsel ranging from 4.2% to 16% (average of 10.94%) and awarding

14.5% fee); Good v. West Virginia-American Water Co., 2017 WL 2884535, *25 (S.D.W. Va.

2017) (noting fee percentages in common fund cases exceeding $100 million ranged from 4.1% to

17.92%); In re Actos, supra at *28 (concluding that 8.6% holdback previously entered by the Court

was reasonable, and in line with common benefit awards in other super-mega-fund cases);

Deepwater Horizon, supra at *16 (approving plaintiffs’ requested 4.3% fee award from estimated

$13 billion settlement, and noting request was “modest” in light of court’s analysis of 21 class


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action super-mega-fund settlements demonstrated average fee award of 9.92% and median fee of

7.4%); In re Syngenta AG MIR 162 Corn Litig., 2015 WL 2165341, *5 (D. Kan. 2015) (“The 8

percent [attorney fee] figure falls easily within the range of awards in cases with large

recoveries.”); In re Nuvaring Prods. Liab. Litig., 2014 WL 7271959, *3 (E.D. Mo. 2014) (11%

attorney fee holdback out of $100 million settlement was “very reasonable” in light of the work

performed and result obtained, and “well within the percentages that courts have routinely awarded

in similar cases.”); In re Avandia, supra at *7 (“the fee award in this case of 6.25% of the estimated

collective value of the settlements (or an award of up to $143,750,000), is squarely in line with

awards that have been approved in the context of other super-mega-fund settlements. In fact, the

requested percentage is lower than the percent awarded in multiple cases.” (listing the percentage

awards from multiple super-mega-fund cases, ranging from a low of 4.8% to a high of 15%, with

an average of 9.15%)); In re Vioxx, supra at 655 (examining range of percentage awards in similar

cases, and concluding that 6% assessment was reasonable benchmark);12 In re Diet Drugs, 553 F.

Supp. 2d at 485 (6.75% appropriate percentage in light of range of super-mega-fund benchmarks

from 4.8% to 15%).

E. Consideration of the Barber Factors Further Supports an Award of the Five-Percent (5%) Holdback for Attorney’s Fees and Expenses.

After a percentage fee is determined to be comparable to benchmark percentage awards in

similar litigations, the percentage is examined in light of the twelve “Barber” reasonableness

factors, which were outlined in Paragraph B.10 of the Court’s January 15, 2016 “Order

Establishing Criteria for Applications to MDL Fund to Compensate and Reimburse Attorneys for

12 This 6% benchmark in Vioxx was adjusted upwards to 6.5% based on application of the twelve reasonableness factors set forth in Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Vioxx, supra at 658.


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Services Performed and Expenses Incurred for MDL Administration and Common Benefit and

Appointment of Common Benefit Fee and Cost Committee.” (noting twelve factors set forth in

Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir.1978)).13 In In re MRRM, P.A., 404 F.3d

863, 867-68 (4th Cir. 2005), the Fourth Circuit approved the use of the “Barber” factors in

assessing the reasonableness of a proposed percentage fee award in a common fund case (28.75%

of $70 million settlement). In Jones v. Dominion Resources Services, Inc., supra at 760, this Court

observed as follows: “with regard to both the percentage of fund factors and the lodestar cross-

check, ‘there is no specific formula for analyzing these factors. Each case is different, and in certain

cases, one factor may outweigh the rest.’” Similarly, in In re Serzone, 2007 WL 7701901 at *2,

this Court noted that “[n]ot all [Barber] considerations apply to every case, and case law and the

Manual for Complex Litigation accord trial courts wide discretion in how they weigh different

criteria touching upon the value of the service provided by Class Counsel.”

1. Time and Labor Required (Factor 1); Attorneys’ Opportunity Costs In Pressing Litigation (Factor 4); Attorneys’ Expectations at the Outset of the Litigation (Factor 6); Time Limitations Imposed by the Client or the Circumstances (Factor 7)

The common fact questions that made these cases appropriate for MDL coordination before

a single Court allowed leadership to develop and implement an overall approach, with certain

consistent themes and legal theories, cross-MDL scientific and medical experts and coordination

of effort in the development of evidence and legal issues. However, the nuances between

13 The Barber factors, derived from the Fifth Circuit’s Johnson v. Ga. Hwy. Express, Inc. opinion, are: (1) time and labor expended; (2) novelty and difficulty of the questions raised; (3) skill required to properly perform the legal services; (4) attorney’s opportunity costs in pressing the litigation; (5) customary fee for like work; (6) attorney’s expectations at the outset of litigation; (7) time limitations imposed by the client or circumstances; (8) amount in controversy and results obtained; (9) experience, reputation, and ability of the attorney; (10) undesirability of the case within the legal community in which the suit arose; (11) nature and length of the professional relationship between the attorney and client; (12) fee awards in similar cases. Factors (8) and (12) are addressed supra.


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defendants and individual products necessitated intense and sustained effort over several years by

a large number of attorneys working across MDL lines. The fact that this coordinated litigation

ultimately involved seven MDLs involving multiple products and multiple defendants required

simultaneous efforts from teams of attorneys, working collaboratively on parallel tracks. The

collective work and lessons learned from one product or one MDL aided the process overall, while

each product required specific focus in terms of liability discovery and pre-trial preparation, expert

development, and trial work-up. The time and labor required to move seven multi-product MDLs

forward in the same Court is reflected in the number of Common Benefit hours that have been

recognized by the Fee and Cost Committee. Due to the complexity and scope of these seven

related MDLs, the number of FCC-recognized hours necessary to move this massive litigation

forward (679,191.20) exceeds many of the largest MDLs in this country’s history. See, e.g., Vioxx,

760 F. Supp. 2d at 659 (562,943.55 hours); Deepwater Horizon, 2016 WL 6215974 at *19

(approximately 527,000 hours); In re Diet Drugs, 553 F. Supp. 2d at 479 (553,020.53 hours).

The opportunity costs and time limitations imposed by the circumstances of these related

MDLs were likewise onerous. This litigation is not only one of the largest – if not the largest –

product liability mass torts in this nation’s history, but it is the only mass tort product liability

litigation in this country that has involved multiple related MDLs, each involving multiple

products, coordinated before the same Court simultaneously. For a number of years, the amount

of time and effort necessary to coordinate this litigation significantly limited involvement in other

matters for the lawyers responsible for spearheading this litigation. The burdens of funding this

behemoth litigation through PSC contributions and tens of millions of dollars in held costs strained

the resources of leadership. Indeed, for several of the firms involved in leadership, the work


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required to pursue this historic litigation seriously limited, if not precluded their involvement in

other litigation, as the number of recognized common benefit hours expended amply demonstrates.

2. The Novelty and Difficulty of the Questions (Factor 2); The “Undesirability” of the Case (Factor 10)

Individually, the cases in these MDLs involve complex prescription medical devices,

implanted by surgeons through an invasive surgical procedure. Thus, the Plaintiffs’ leadership was

not only required to address the difficult legal questions that arise in product liability cases

generally, but also had to navigate the unique regulatory, scientific and medical issues presented

in these cases. There were also significant issues related to the plaintiffs’ treating physicians, which

necessitated understanding and addressing questions such as surgical skill and experience, doctor

training, and patient selection, and in some cases, defenses of medical negligence. Adding to the

complexity, the defendants helped to organize a campaign within the medical community during

the course of this litigation that resulted in doctor organizations issuing various “position

statements” regarding this litigation and the products involved, which spawned additional motions

practice, legal issues, and discovery.

The disputed issues involved in these cases included a wide range of complicated scientific,

medical and legal questions. Merely understanding from a scientific and medical perspective what

was “wrong” with these products and with the defendants’ product warnings, and how these

defects caused the plaintiffs’ injuries, required extensive study and research. All of these issues

were, of course, bitterly disputed by the defendants. Fitting these scientific and medical concepts

into the product liability legal construct, and then translating these complex concepts into a form

that a jury could understand, was exceptionally difficult. As described above, plaintiffs’ leadership

was responsible for development of experts from several different scientific and medical fields,

including pelvic repair surgeons, pain specialists, biomaterials experts, polymer scientists,


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biostatisticians, pathologists, and regulatory experts. Several of the plaintiffs’ experts conducted

extensive laboratory testing of the materials and products involved utilizing a variety of scientific

equipment, and issued extensive reports outlining and explaining in detail their medical and

scientific findings and opinions. Many of the defense’s multitude of experts likewise issued

voluminous reports, citing to reams of scientific testing and clinical and animal study results, all

of which had to be meticulously reviewed and analyzed by plaintiffs’ leadership. To be prepared

to handle their duties, plaintiffs’ leadership was required to become knowledgeable and proficient

in several diverse scientific and medical areas, and to recognize and address issues when (if not

before) they arose. There was nothing routine or easy about these cases.

The complexity inherent in any individual pelvic mesh case was increased exponentially

based on the number of products and defendants involved. The fact that this litigation encompassed

seven MDLs, with different defendants, multiple products and different counsel and litigation and

settlement strategies, and each with issues impacting the development of the liability theories,

made this novel undertaking exceedingly difficult and required a cohesive effort among the

Plaintiffs’ leadership. Plaintiffs’ leadership also had to confront the delay and other practical and

logistical difficulties inherent in multiple MDLs with hundreds or thousands of cases

simultaneously in a single court. Moving multiple large-scale product liability MDLs forward in

the same court necessitated innovation, perseverance and intense work by many lawyers and firms

over several years working together across MDL lines.

This litigation has also been hard-fought by the several defense firms involved. The defense

has utilized every tactic within their legal arsenal to try and defeat these cases, including a panoply

of dispositive motions on every claim in nearly every case, Daubert challenges against nearly

every one of plaintiffs’ experts (and often multiple motions per expert), several attempts to limit


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Plaintiffs’ counsel’s ability to meet with treating doctors, efforts to curtail the Plaintiffs’ ability to

put on evidence through in limine motions and other means, and seemingly indefatigable attempts

to inject regulatory and preemption-related defenses into these cases. Important legal and

evidentiary issues (such as applicability of punitive damages, admissibility of FDA regulatory

evidence and the admissibility of the Material Safety Data Sheet product warnings) were often

subject to multiple rounds of briefing, across the various MDLs, with each round of briefing raising

new arguments or citing additional facts alleged to warrant different results. Plaintiffs’ leadership

was required to deal with ancillary issues such as the propriety and scope of “independent” medical

examinations of plaintiffs, and the alleged involvement of third-party litigation funding and

surgical funding groups. In addition to drafting and responding to the “general” motions filed in

the main MDL docket applicable to all cases, the Plaintiffs’ leadership also oversaw the

preparation of case-specific motions and responses to defense motions filed in individual cases,

providing templates and exemplar motions to MDL Plaintiffs’ counsel. The motions practice

involved in these MDLs is too voluminous to recount here but suffice to show that nearly every

procedural and substantive factual and legal issue that could possibly be disputed was litigated,

typically many times over (generally with new arguments and issues presented as Defendants

“refined” their positions).

Finally, with respect to the desirability of this litigation, the prospects of litigating a

complex product liability MDL against a multi-national corporate defendant, defended by top U.S.

defense law firms, were daunting from the outset. Before 2011, only a small number of firms in

the country were willing to institute litigation involving these products. Prior to that time, there

were substantial risks and costs that made the litigation undesirable. Even with the increase in

interest in the pelvic mesh litigation, however, these cases were far from a “sure thing,” as the past


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several years of hotly-contested litigation have proven. The risks and costs associated with leading

this litigation have remained onerous from the beginning. Leading this litigation required fortitude

and persistence, as well as substantial financial sacrifice. The well-represented corporate

defendants litigated these MDLs fiercely, recognizing that trying these cases would be difficult

and expensive given the number of fact and expert witnesses necessary to establish liability,

causation and damages. With costs approaching half-a-million dollars or more per trial for some

of the bellwether trial cases, the impediments to pursuing these cases were enormous.

3. The Skill Required to Perform the Legal Service (Factor 3); The Experience, Reputation, and Ability of the Attorneys (Factor 9)

As noted in Jenson v. First Trust Corp., 2008 WL 11338161, *13 (C.D.Cal.2008), “[t]he

‘prosecution and management of a complex national class action requires unique legal skills and

abilities.’ Edmonds v. U.S., 658 F. Supp. 1126, 1137 (D.S.C. 1987).” These “unique skills and

abilities” were indispensable to management of these coordinated MDLs, which together involved

tens of thousands of individual personal injury actions against different manufacturers including

several different products. The quality of the work performed in the prosecution of these seven

coordinated MDLs is reflected in the outcomes of the several trials that have included multiple

significant plaintiffs’ verdicts, as well as the numerous large-scale settlements across the MDLs.

Jenson, supra at *13.

Managing several related complex medical device product liability MDLs simultaneously

necessitated the involvement of the preeminent attorneys in this area of the law. The lawyers

appointed by the Court to lead the litigation on plaintiffs’ behalf in these MDLs include attorneys

from many of the foremost plaintiffs’ mass tort law firms from across the United States. These

attorneys and law firms involved in Plaintiffs’ leadership specialize in representing individuals

who have suffered injury from prescription drugs and medical devices. The collection of attorneys


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necessarily included a broad array of experience and skills, from the conduct of electronic

discovery and analysis of voluminous document production, to motions and briefing, to deposing

experts and corporate representatives and taking these complex cases to trial. Other attorneys

within Plaintiffs’ leadership brought their knowledge and experience in mass tort settlement

negotiation to bear in bringing tens of thousands of cases to resolution and assisting others in their

own settlements. This litigation required dedicated research and study to comprehend and address

the difficult and novel legal, scientific and medical issues presented in these cases. Good v. West

Virginia-American Water Co., 2017 WL 2884535 at *24 (noting diligent research and education

required to understand scientific and legal issues involved, which bore on Barber analysis in

awarding attorney’s fees). This collective experience and skill was vital to the success of the

litigation, as these cases were defended by teams of attorneys from several of the nation’s largest,

most experienced and capable defense firms. As several courts considering attorney fee awards

have noted, “[t]he quality of opposing counsel is also important in evaluating the quality of the

work done by Plaintiffs’ Counsel.” Jenson, 2008 WL 11338161 at *14 (citing In re Equity Funding

Corp. Sec. Litig., 438 F. Supp. 1303, 1337 (C.D. Cal. 1977); In re King Resources Co. Sec. Litig.,

420 F. Supp. 610, 634 (D. Colo. 1976); and Arenson v. Board of Trade, 372 F. Supp. 1349, 1354

(N.D. Ill. 1974)). The fact that the plaintiffs have been able to withstand the legal firepower brought

to bear by these highly-skilled and experienced defense firms is largely a testament to the

experience and ability of the collection of attorneys making up plaintiffs’ leadership, and their

coordination and cooperation across the scope of this litigation.

4. Nature and Length of Professional Relationship Between Attorney and Client (Factor 11)

This Barber factor was designed to consider those instances where “a lawyer in private

practice may vary his fee for similar work in the light of the professional relationship of the client


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with his office.” See, Johnson, 488 F.2d at 719. There are few, if any, pre-existing relationships

between the plaintiffs in these MDLs and plaintiffs’ leadership. Although some attorney-client

relationships continue beyond the settlement phase to include litigation-related matters such as

health insurance or governmental lien resolution or bankruptcy negotiation, this factor is not

entitled to significant weight in the analysis.

5. Customary Fee for Similar Work (Factor 5)

As noted in Deepwater Horizon, supra at *19, the “Customary Fee for Similar Work”

analysis is largely redundant of the benchmark percentage factor, which is discussed above. Again,

the 5% fee is well within the benchmark percentages for similar cases.

F. An Award of the Five-Percent (5%) Holdback is Supported by the “Lodestar” Cross-Check.

While use of the lodestar is often referenced as a “cross-check” on the reasonableness of a

percentage fee award, courts have observed that “[t]he lodestar cross-check calculation need entail

neither mathematical precision nor bean-counting,” and that “a court performing a lodestar cross

check need not scrutinize each time entry; reliance on representation by class counsel as to total

hours may be sufficient.” In re Nuvaring Prods. Liab. Litig., 2014 WL 7271959, *2 (E.D.

Mo.2014) (citing several MDL and class action decisions). In Jones v. Dominion Resources

Services, Inc., supra at 765-66, this Court similarly observed as follows:

Because I am using the lodestar method as a cross-check, I need not apply the “exhaustive scrutiny” normally required by that method. Goldberger, 209 F.3d at 50 (“[W]here used as a mere cross-check, the hours documented by counsel need not be exhaustively scrutinized by the district court. Instead, the reasonableness of the claimed lodestar can be tested by the court’s familiarity with the case.”); see also In re Rite Aid Corp., 396 F.3d 294, 306–07 (2005). Instead, I may use Class Counsels’ estimate of the hours they have spent working on this case. Some courts do not even attempt to assign a specific “hourly rate” in calculating the

lodestar. In Nuvaring, for example, the Order simply noted that the common benefit hours


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expended was 34,440 and when multiplied by “each attorney’s typical hourly rate,” the lodestar

“would substantially exceed the holdback of $11,000,000” without ever mentioning the hourly rate

that the court considered to be “typical.” 2014 WL 7271959 at *4. Likewise, in Actos, the court

discussed generally how a reasonable hourly fee in an MDL should be calculated, but never

expressly stated what a reasonable hourly rate would be. 2017 WL 3033134, *24-*26. The court

in Actos explained that neither the hours expended, nor an hourly rate could reflect the value or

quality of the work or any of the “intangible” factors courts must consider. Id., *29. The court in

Actos noted that application of “a possible reasonable lodestar” (which was never expressly stated)

to the number of approved hours expended also supported the percentage award.

Using a total expected common benefit fund of $550,000,000, less current held costs and

recognized PSC and State Court assessments through December 21, 2016 ($46,811,811.38) and

less expenses paid to date from the fund ($12,037,448.66), the total amount of anticipated common

benefit fees is $491,150,739.96. This number is artificially high because held costs incurred after

December 21, 2016 are not included, but it will be used for purposes of demonstrating the

reasonableness of the previously-awarded 5% holdback amount for fees and expenses.

The Court need not assign an hourly rate in order to determine that the rough lodestar cross-

check amply supports the reasonableness of the fee and expense award here. Irrespective of what

hourly rate were to be selected for the cross-check, the number of hours already expended in this

litigation would yield a multiplier that would fall well within the range of reasonableness for

similar litigations. Merely for purposes of illustration, an hourly rate of $300 would yield a

“multiplier” of 2.41 (dividing the anticipated common benefit fees ($491,150,739.96) by the

lodestar cross-check amount ($203,757,360.00 (679,191.20 x $300/hour)). An hourly rate of $500

per hour would yield a “multiplier” of 1.45 (dividing the anticipated common benefit fees


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($491,150,739.96) by the lodestar cross-check amount ($339,595,600.00 (679,191.20 x

$500/hour)). Obviously, application of different hourly rates would yield a different lodestar

multiplier, but the multiplier would still fall squarely within the range that courts have deemed

reasonable irrespective of the hourly rate that one chose to utilize.14

In Kay Co., supra at 470, this Court recognized that “Courts have generally held that

lodestar multipliers falling between 2 and 4.5 demonstrate a reasonable attorneys’ fee.” This is

consistent with the range of similar multipliers that courts have found reasonable, as demonstrated

in the chart below:

Case Lodestar Multiplier Deloach v. Philip Morris Cos., 2003 WL 23094907 (M.D.N.C. 2003) 4.45 In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319 (S.D.N.Y. 2005)

4

In re NASDAQ Market-Makers Antitrust Litig. 187 F.R.D. 465 (S.D.N.Y. 1998)

3.97

In re AOL Time Warner, Inc. Sec. Litig., MDL 1500, 2006 WL 3057232 (S.D.N.Y. 2006)

3.69

In re Visa Check/Mastermoney Antitrust Litig., 297 F. Supp. 2d 503 (E.D.N.Y. 2003)

3.5

In re Tyco Int’l, Ltd., 535 F. Supp. 2d 249 (D.N.H. 2007) 2.697 In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F. Supp. 2d 383 (D. Md. 2006)

2.57

In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 268 F. Supp. 2d 907 (N.D. Ohio 2003)

2.4

In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 767 (S.D. Ohio 2007)

5.9

In re Enron Corp. Securities, Derivative & ERISA Litig., 586 F. Supp. 2d 732, 803 (S.D. Tex. 2008)

5.2

In In re Diet Drugs, 582 F.3d 523, 545 (1st Cir. 2009), the First Circuit concluded that a

multiplier of 3.4 “or somewhere in that neighborhood” is “not problematically high,” but is instead

14 While the FCC does not anticipate reaching a total common benefit fund of $700,000,000.00, even assuming such a hypothetical level the “multiplier” for a rate of $300 per hour would be 3.15 and the “multiplier” for a rate of $500 per hour would be 1.89. These values would still fall well within the acceptable range based on other MDL litigation.


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“either below or near the average multiplier in the ‘super-mega-fund’ cases….” See also,

Deepwater Horizon, supra at *20 (lodestar multiplier of 2.34 was reasonable in light of research

showing average multiplier of 3.14 in cases with settlements totaling more than $1 billion); In re

Avandia, 2012 WL 6923367 at *10 (lodestar multiplier of 2.6 was consistent with applicable

jurisprudence and lower than multipliers approved in other cases); In re Nat’l Football League

Players’ Concussion Injury Litig., 2018 WL 1635648, *9 (E.D. Pa. 2018) (noting a lodestar

multiplier of 2.96 was “well within the norm for this Circuit, which has noted that multipliers

ranging from one to four are frequently awarded.”). Moreover, as noted in the NFL Players

Concussion MDL, the lodestar cross-check multiplier calculated here is artificially high, and the

actual lodestar will continue to increase as common benefit work has continued beyond the FCC’s

cutoff of December 21, 2016 and is on-going. Id. at *9 n. 9. Again, whatever hourly rate is

employed to perform the lodestar cross-check, the multiplier calculated here demonstrates that the

fee is reasonable.

It is important to note here that irrespective of whether an hourly lodestar rate is calculated

or applied to the total number of hours for the sole purpose of cross-checking the reasonableness

of the overall fee, or what “blended” hourly rate may be used, this lodestar rate has no application

to the Court’s subsequent consideration of any individual attorney or law firm’s allocation from

the total fee. The two analyses – total award and individual allocation – are distinct. As noted in

Actos, “the jurisprudence suggests that the average rate is not necessarily reflective of the rate

ultimately used to calculate any firm’s award, rather it is used as an additional evaluation of the

reasonableness of a total common benefit fee award,” and “[t]herefore, an hourly rate should only

be considered one factor among several when determining the reasonableness of a fee award, rather


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than determinative of the hourly rate awarded to any individual attorney.” In re Actos, 2017 WL

3033134 at *29.

The five-percent (5%) award sought here results in a rough lodestar cross-check that is

directly in line with awards in other “super mega fund” cases and demonstrates the reasonableness

of the Court’s holdback years ago.

IV. CONCLUSION.

In light of the foregoing analysis, the Barber factors support affirmance of the Court’s

initial holdback of five percent (5%) as an award for common benefit expenses and attorney’s fees.

The undersigned members of the FCC respectfully request that the Court enter an Order granting

an award of attorney’s fees and expenses in the amount of five percent (5%) of the settlements and

judgments subject to the common benefit assessment.

Dated: November 12, 2018


THE COMMON BENEFIT FEE AND COST COMMITTEE

By: /s/ Henry G. Garrard, III

Henry G. Garrard, III [email protected] Chairman of the Fee & Compensation Committee BLASINGAME, BURCH, GARRARD & ASHLEY P.O. Box 832 Athens, GA 30603 706-354-4000

/s/ Renee Baggett Renee Baggett

[email protected] AYLSTOCK, WITKIN, KREIS & OVERHOLTZ 17 East Main Street, Suite 200 Pensacola, FL 32502 850-202-1010


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/s/ Riley L. Burnett, Jr. Riley L. Burnett, Jr. [email protected]

BURNETT LAW FIRM 55 Waugh Drive, Suite 803 Houston, TX 77007 832-413-4410

/s/ Thomas P. Cartmell Thomas P. Cartmell [email protected]

WAGSTAFF & CARTMELL, LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 816-701-1100

/s/ Clayton A. Clark Clayton A. Clark [email protected]

CLARK, LOVE & HUTSON, G.P. 440 Louisiana Street, Suite 1600 Houston, TX 77002 713-757-1400

/s/ Yvonne M. Flaherty Yvonne M. Flaherty [email protected]

LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue S., Suite 2200 Minneapolis MN 55401 612-339-6900

/s/ Carl N. Frankovitch Carl N. Frankovitch [email protected]

FRANKOVITCH, ANETAKIS, COLANTONIO & SIMON 337 Penco Road Weirton, WV 26062 304-723-4400

/s/ Joseph F. Rice Joseph F. Rice [email protected]

MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 843-216-9000


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/s/ William H. McKee, Jr William H. McKee, Jr [email protected]

1804 Louden Heights Road Charleston, WV 25314 304-546-2347


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I hereby certify that on November 12, 2018, I electronically filed the Common Benefit Fee

and Cost Committee’s Petition for an Award of Common Benefit Attorneys’ Fees and Expenses and

Memorandum in Support with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to the CM/ECF participants registered to receive service in this MDL.

By: /s/ Henry G. Garrard, III Henry G. Garrard, III [email protected] Chairman of the Fee & Compensation Committee BLASINGAME, BURCH, GARRARD & ASHLEY P.O. Box 832 Athens, GA 30603 706-354-4000


EXHIBIT J

























Documents

CASE NO. 19-1849(L) ANDERSON LAW OFFICES; BENJAMIN H ... · Appellants, Anderson Law Offices and Benjamin H. Anderson (“collectively ALO”), request that this Court enter an order