United States District Court, S.D. Illinois
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)
R. HERNDON UNITED STATES DISTRICT JUDGE.
SCOPE OF ORDER
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
Governing Principles--The Common Benefit Doctrine.
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
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.
Participation Agreement (Exhibit A).
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.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.
PLAINTIFFS' LITIGATION FEE AND EXPENSE FUNDS
Establishing the Fee and Expense Funds.
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.
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.
Payments into the Fee and Expense Funds: The Assessment.
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.
Gross monetary recovery.
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.
(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