The opinion of the court was delivered by: Hon. David R. Herndon
This Document Applies To All Actions
EXHIBIT A TO CMO 14 (Common Benefit Participation Agreement)
THIS 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 Illinois in MDL 2100 and _________________________________ [Name of the Firm Executing the Agreement] (the "Participating Counsel").
WHEREAS, the United States District Court for the Southern District of Illinois has appointed Michael S. Burg, Michael London, Mark Niemeyer, Roger Denton, Andy Alonso, Christopher Seeger, Paul Pennock, Tim O'Brien, Mark Robinson, Trent Miracle, Tom Girardi, Arnold Levin, Jeff Lowe, A.J. DeBartolomeo, Steven Maher, Daniel Becnel, and Roopal Luhana to serve as members of the PSC to facilitate the conduct of pretrial proceedings in the federal actions relating to the use, marketing, and sales of Yasmin and Yaz Drospirenone containing hormonal birth control pills ("Yasmin/Yaz").*fn1
WHEREAS, the PSC in association with other attorneys working for the common benefit of plaintiffs have developed or are in the process of developing work product that will be valuable in all proceedings involving Yasmin/Yaz/Ocella personal injuries ("PSC Common Benefit Work Product") and
WHEREAS, the Participating Counsel are desirous of acquiring the PSC 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:
This Participation Agreement is a private cooperative agreement between plaintiffs' attorneys to share "Common Benefit Work Product" with regard to personal injury claims resulting from the use of Yaz/Yasmin/Ocella by Participating Counsel pursuant to the Order Establishing Common Benefit Fee and Expense Fund and this Participation Agreement. Plaintiffs' attorneys who execute this Agreement ("Participating Counsel") are entitled to receive the "Common Benefit Work Product" created by those attorneys who have also executed or have been deemed to have executed the Participation Agreement.
Participating Counsel further recognize the separate and independent rights of each jurisdiction, and the litigants in each jurisdiction - including non-participating counsel - to fully represent the interests of their clients, including the right to conduct discovery, set cases for trial, conduct jury trials, and/or resolve cases.
B. Early Participation v. Late Participation
For any counsel who enters into this Participation Agreement within 45 days of the entry of this Order or 45 days of their first case being docketed in the MDL or any other jurisdiction working cooperatively with the MDL PSC (e.g., California, New Jersey, Pennsylvania) (whichever is later), the assessment shall be 6% as computed and determined below ("Early Participation"). For any counsel who enters into this Participation Agreement after 45 days of the entry of this Order or 45 days of their first case being docketed in the MDL or any other jurisdiction working cooperatively with the MDL PSC (e.g., California, New Jersey, Pennsylvania) (whichever is later), the assessment shall be 10% as computed and determined below ("Late Participation").
C. Rights and Obligations of Participating Counsel
Upon execution of this Participation Agreement, the PSC will provide access to Participating Counsel, the common benefit work product defined in the Court's Case Management Order to which this Exhibit "A" is attached, including access to the PSC's depository. Participating Counsel agree that all cases in which Participating Counsel has a fee interest, including unfiled cases, tolled cases, and/or cases filed in state and/or federal court, are subject to the terms of this Participation Agreement. Participating Counsel shall produce a list that correctly sets forth the name of each client represented by them and/or in which they have an interest in the attorneys' fee regardless of what that interest is, who has filed a civil action arising from the use, marketing, and/or sale of YASMIN/YAZ/OCELLA together with the Court and docket number of each such case and shall produce a list that contains the name of each client represented by them and/or in which they have an interest in the attorneys' fee regardless of what that interest is, who has not yet filed a civil action arising from the use, marketing, and sale of YASMIN/YAZ/OCELLA. Participating Counsel shall supplement the lists on a quarterly basis and provide this list to Liaison Counsel, Roger Denton at firstname.lastname@example.org. The initial list shall be provided within 15 days of signing this Agreement and must be supplemented every 90 days thereafter.
II. AGREEMENT TO PAY AN ASSESSMENT ON GROSS RECOVERY
Subject to the terms of this Agreement and the provisions set forth below and the terms of the corresponding Case Management Order, all Plaintiffs and their attorneys who, either agree or have agreed - for a 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 such compensatory and punitive damages, with respect to YASMIN/YAZ/OCELLA claims are subject to an assessment of the gross settlement amount, "gross monetary recovery," as provided herein.
A. Gross Monetary Recovery Defined
Gross monetary recovery includes any and all amounts paid to plaintiffs' counsel by Defendants through a settlement or pursuant to a judgment. In measuring the "gross monetary recovery," the parties are to (a) exclude court costs that are to be paid by the defendant; (b) include any payments to be made by the defendant on an intervention asserted by third-parties, such as to physicians, hospitals, and other healthcare providers in subrogation related to treatment of plaintiff and any governmental liens or obligations (e.g., Medicare/Medicaid); and (c) include the present value of any fixed and certain payments to be made in the future. The assessment shall apply to all of the cases of the Plaintiff's attorneys who are subject tot his Order that are pending in the MDL or state court as well as any unfiled or tolled cases of such attorneys in which they are counsel or co-counsel.
(a) Early Participation -- The assessment amount shall be six (6) percent (four (4) percent for common benefit attorneys' fees and two (2) percent for costs) for Early Participation Counsel;
(b) Late Participation -- The assessment amount shall be ten (10) percent (eight (8) percent for common benefit attorneys' fees and two (2) percent for costs) for Late Participation Counsel.
(c) The assessment represents a hold back (In re Zyprexa Prods. Liab. Litig., 267 F.Supp.2d 256 (E.D.N.Y. 2006)) and shall not be altered in any way unless each of the following occurs: (1) the entire PSC is consulted and provided an opportunity to be heard prior to the filing of any motion to change the assessment amount; (2) the PSC approves the proposed change to the assessment by a majority vote; (3) noticed motion with an opportunity to be heard is granted by the Court; and (4) the increase is approved by the Court.
The assessment amount set forth above and in the related Order shall apply to all cases now pending, or later filed in, transferred to, or removed to, this Court and treated as part of the coordinated proceeding known as In re: Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Relevant Products Liability Litigation, MDL 2100regardless of whether or not the plaintiff's attorney is either Participating or Non-Participating Counsel. Counsel who sign the Participation Agreement further agree that the assessment shall apply to all ...