The opinion of the court was delivered by: Hon. David R. Herndon
This Document Applies To All Actions :
EXHIBIT A TO CMO 16 (Common Benefit Participation Agreement)
THIS AGREEMENT is made this ____ day of _____________, 201__, by and between the Plaintiffs' Leadership Group appointed by the United States District Court for the Southern District of Illinois in MDL 2385 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 Roger Denton, Tor Hoerman, Seth A. Katz, Michael London, Mikal C. Watts, Clayton Clark, Pete Flowers, Michael Gallagher, David Matthews, Ned McWilliams, Neil Overholtz, Michelle A. Parfitt, Erin Copeland, Chris Cueto, A.J. De Bartolomeo, Sarah Shoemake Doles, James Dugan, Brenda Fulmer, Michael Goetz, Ronald E. Johnson, Jr., Ramon Lopez, Michael Lynch, John Restaino, Eric Weinberg, Michael Weinkowitz, Mark Niemeyer and Steven Davis to serve as members of the Plaintiffs' Leadership Group (also referred to the Plaintiffs' Steering Committee or "PSC"), to facilitate the conduct of pretrial proceedings in the federal actions relating to the use, marketing, and sales of Pradaxa; and
WHEREAS, the Plaintiffs' Leadership Group, 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 and benefit all plaintiffs alleging injury caused by use of the prescription medication Pradaxa (" 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 Plaintiffs' Leadership Group 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 pursuant to the Order Establishing Common Benefit Fee and Expense Fund and this Participation Agreement. Any plaintiffs' attorney who executes this Agreement ("Participating Counsel") is 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, regardless of the venue in which the attorney's cases are pending.
B. Rights and Obligations of Participating Counsel
Upon execution of this Participation Agreement, the Plaintiffs' Leadership Group will provide Participating Counsel access to the Common Benefit Work Product, including access to the document 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 attorney fee, regardless of what that interest is, who has filed a civil action arising from the use, marketing, and/or sale of Pradaxa. Such list shall include the court and docket number of each such case. Participating counsel shall also produce a list that contains the name of each client represented by them and/or in which they have an interest in the attorney fee, regardless of what that interest is, who has not yet filed a civil action. Participating Counsel shall supplement the lists on a quarterly basis and provide the lists to Plaintiffs' Co-Liaison Counsel. 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, the provisions set forth below, and the terms of CMO ____, all plaintiffs and their attorneys who agree 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, for any Pradaxa claims are subject to an assessment of the Gross Monetary Recovery, as provided herein.
The assessment amount shall be six (6) percent of the Gross Monetary Recovery in each case, four (4) percent for common benefit attorneys' fees and two (2) percent for common benefit expenses, and represents a holdback ( See In re Zyprexa Prods. Liab. Litig., 267 F.Supp.2d 256 (E.D.N.Y. 2006)). By entering this Participation Agreement, the undersigned understands and avers to not move, join, or otherwise support a motion that seeks a common benefit fee assessment in excess of 4%, nor a motion that seeks common benefit costs in excess of 2%, unless it should become apparent that costs and expenses in excess of 2% are required to reasonably and adequately advance the litigation.
However, to obtain the benefit of this assessment amount, all plaintiffs' counsel with a case pending in this MDL or in any state court shall execute this Participation Agreement within 45 days of the entry of the Common Benefit Order. Any plaintiffs' attorney who does not yet have a Pradaxa case filed in any state or federal court shall execute this Participation Agreement (a) within 45 days of the date their first case is filed in or otherwise docketed in this Court via transfer or removal, or (b) within 45 days of the date their first case is filed in any state court. Failure to execute the Participation Agreement within these time frames may result in an increased assessment as determined by Plaintiffs' Co-Lead counsel.
B. 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, or other healthcare providers in subrogation related to treatment of a plaintiff, and any governmental liens or ...