United States District Court, S.D. Illinois
IN RE YASMIN AND YAZ DROSPIRENONE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION This Document Relates To All Actions
MEMORANDUM AND ORDER
R. Herndon, Judge
matter is before the Court on the Report and Recommendation
of Special Master Daniel J. Stack (Doc. 4059). Special Master
Stack recommends that $358, 032.14 be paid to the
Pennsylvania/New Jersey state court fund from the MDL common
benefit fund, and that the law firm of Lopez McHugh be denied
its $25, 000 contribution to the state court fund due to the
firm's purposeful delay of signing the Participation
Agreement, which established involvement with, and
entitlement to, common benefit work product. The Report and
Recommendation was entered on February 3, 2017. Lopez McHugh
filed its objection to the Report and Recommendation on
February 17, 2017 (Doc. 4065). Based on the following, the
Court ADOPTS the Report and Recommendation in its entirety.
Court need not recite the background of this case, as the
parties are fully aware of the facts after years of
litigation. Instead, the Court briefly recites the relevant
facts surrounding Lopez McHugh's objections to the
Special Master's Third Report and Recommendation
(“R&R”) regarding the allocation and
distribution of common benefit fund expenses for the
Pennsylvania/New Jersey state court fund.
the nature of this large litigation, the Court entered CMO 14
(doc. 1042) establishing a common benefit fee and expense
fund 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.” Id. at 1 (emphasis added). One
aim of CMO 14 is to encourage sharing of work product
valuable to the litigation as a whole and avoid duplicative
work. To be entitled to the benefits and perks of the common
benefit fund, firms must sign a Participation Agreement and
be subject to an assessment fee based upon timing of
participation. See id., Exhibit A. “Common
Benefit Work Product” would then be available to all
participating law firms.
Master Stack issued his third R&R in response to a
request from Pennsylvania and New Jersey state court counsel,
asking for reimbursement from the MDL common benefit fund for
expenses incurred in their companion state court litigations
(e.g. for deposition and court transcript expenses, state
court document depository costs, etc.). Counsel advised that
the expenses incurred in the state court litigation helped to
advance the litigation as a whole, hence entitling them to
reimbursement from the common benefit fund. State court
counsel also advised that the extra expenses sustained by the
state court fund is largely due to Lopez McHugh declining to
execute the Participation Agreement, resulting in additional
fees expended to provide Lopez McHugh with the materials
needed to litigate, that would otherwise have been available
to the firm had the Participation Agreement been signed.
issuing his R&R, Special Master Stack determined that the
state court fund should be reimbursed despite finding no
common benefit by the companion litigations' work,
because the firms who timely signed the Participation
Agreement “should not pay the price for the actions of
one firm.” Doc. 4059, at 3. Objecting to the Special
Master's recommendation, Lopez McHugh seeks a
“correction of the record” to demonstrate why and
how the additional expenses were incurred.
Standard of Review
Court's review of the R&R is governed by 28 U.S.C.
§ 636(b)(1)(C), which provides in part:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court make a
de novo determination of those portions of the
report and recommendation to which specific written
objections have been made. Johnson v. Zema Sys.
Corp., 170 F.3d 734, 739 (7th Cir. 1999); 28 U.S.C.
§ 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). In making this
determination, the Court must look at all the evidence
contained in the record and give fresh consideration to those
issues for which specific objection has been made.
Id. However, the Court need not conduct a de
novo review of the findings of the R&R for which no
objections have been made. Thomas v. Arn, 474 U.S.
140, 149-52 (1985).
Master Stack's R&R, which was well-reasoned and
thorough, recommended that the balance of the expenses
submitted by the state court lawyers litigating in
Pennsylvania and New Jersey should be reimbursed to their
state court fund, even though the expenses were not valuable
to the whole as stated in CMO 14. This is because the
expenses were created due to duplicative efforts for
deposition transcripts and depository to benefit the firm of
Lopez McHugh, who denied signing the Participation Agreement
entitling it to common work product. As such, ...