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In re Just For Men® Mass Tort Litigation

United States District Court, S.D. Illinois

March 9, 2017

IN RE JUST FOR MEN® MASS TORT LITIGATION This Document Applies To All Actions

          CASE MANAGEMENT ORDER NO. 5 (ESTABLISHING COMMON BENEFIT FEE AND EXPENSE FUND)

          DAVID R. HERNDON UNITED STATES DISTRICT JUDGE.

         I. SCOPE OF ORDER

         This Order is entered to provide for the fair and equitable sharing among plaintiffs, and their counsel, of the burden of services performed and expenses incurred by attorneys acting for the common benefit of all plaintiffs in this complex litigation.

         A. Governing Principles--The Common Benefit Doctrine.

         The governing principles are derived from the United States Supreme Court's common benefit doctrine, as established in Trustees v. Greenough, 105 U.S. 527 (1881); refined in, inter alia, Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1884); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970); Boeing Co. v. Van Gemert, 444 U.S. 472 (1980); and approved and implemented in the MDL context, in inter alia, In re MGM Grand Hotel Fire Litigation, 660 F.Supp. 522, 525-29 (D. Nev. 1987); and In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d 1006, 1019-21 (5th Cir. 1977). Given that these actions constitute a Mass. Tort Litigation, the Court finds the foregoing principles to be instructive.

         B. Application.

         This Order applies 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: Just For Men® Mass. Tort Litigation, Master Docket 3:16-cv-00638-DRH. This Order further applies to all plaintiffs' attorneys who sign the “Participation Agreement” attached hereto as Exhibit A.

         C. Participation Agreement (Exhibit A).

         Exhibit A, attached hereto and incorporated herein, is a voluntary Participation Agreement between plaintiffs' attorneys who have cases pending in some other federal court and/or in state court. The Participation Agreement is a private and cooperative agreement between plaintiffs' attorneys only (Participating Counsel); and not Defendants. Participating Counsel include all members of the Plaintiffs' Steering Committee (PSC) (as designated in Order No. 2) and any other plaintiffs' attorneys who execute the Participation Agreement within twenty (20) days of their first case they have docketed in this Mass. Tort Litigation.[1]Participating Counsel are entitled to receive the “Common Benefit Work Product.” Counsel who choose not to execute the Participation Agreement, are not entitled to receive Common Benefit Work Product, however if non-participating counsel receives Common Benefit Work Product, any other work product created pursuant to this Order, or otherwise benefit by the work performed by the PSC in the Just For Men Mass. Tort Litigation, those cases will be subject to an assessment to be determined by this Court and those counsel shall be responsible for payment of the assessments set forth in this Order into the Common Benefit Fund.

         II. PLAINTIFFS' LITIGATION FEE AND EXPENSE FUNDS

         A. Establishing the Fee and Expense Funds.

         At an appropriate time, Plaintiffs' Liaison Counsel (“PLC”) will be directed to establish two interest-bearing accounts to receive and disburse funds as provided in this Order (the “Funds”). The first fund shall be designated the “Just for Men® Fee Fund” and the second fund shall be designated the “Just for Men®Expense Fund.” These funds will be held subject to the direction of this Court. No party or attorney has any individual right to any of these funds except to the extent of amounts directed to be disbursed to such person by order of the Court. These funds do not constitute the separate property of any party or attorney and are not subject to garnishment or attachment for the debts of any party or attorney except when and as directed to be disbursed as provided by court order to a specific person.

         By subsequent Order, the Court will appoint an individual to serve as Escrow Agent to manage the Funds. The Escrow Agent shall keep detailed records of all deposits and withdrawals and will be directed to prepare tax returns and other tax filings in connection with the Funds. The Escrow Agent will turn in time records on a monthly basis to Liaison Counsel reflecting the time spent in managing the Funds. Upon approval by the Court, the foregoing time shall be paid from the Just For Men® Mass. Tort Litigation Common Benefit Expense Fund and shall be considered a shared cost in accordance with § III. B.1., below. The PLC shall provide a copy of this Order to the Escrow Agent and the Plaintiffs' Co-Lead Counsel.

         B. Payments into the Fee and Expense Funds: The Assessment.

         All Plaintiffs and their attorneys who are subject to this Order and 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 Just For Men® claims are subject to an assessment of the “gross monetary recovery, ” as provided herein.

         1. Gross monetary recovery.

         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 to this Order that are pending in the Mass. Tort Litigation or, to the extent the Plaintiff's attorneys have signed the Participation Agreement, to any state court action in which they have entered their appearance as counsel of record, as well as any unfiled or tolled cases of such attorneys in which they are counsel or co-counsel and have entered into a tolling agreement with Defendants.

         2.Assessment Amount.

(a) Early Participation - The assessment amount shall be eight (8) percent (four (4) percent for common benefit attorneys' fees and four (4) percent for costs) for Early Participation Counsel;
(b) Late Participation - The assessment amount shall be ten (10) percent (six (6) percent for common benefit attorneys' fees and four (4) percent for costs) for Late Participation Counsel.

         3.Defendants' ...


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