Meijer, Inc. et al v. Abbott Laboratories

Filing 514

ORDER by Judge Claudia Wilken Granting 510 , 512 Final Approval of Settlement and Entering Judgment of Dismissal with Prejudice. (ndr, COURT STAFF) (Filed on 8/11/2011)

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Joseph R. Saveri (State Bar No. 130064)
[e-mail]
Brendan Glackin (State Bar No. 199643)
[e-mail]
Sarah London (State Bar No. 267083)
[e-mail]
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery Street, 30th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Meijer, Inc., et al. and the
Customer Plaintiff Class

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[Additional Counsel Appear or Signature Page]
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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Case No.: No C. 07-5985 CW
MEIJER, INC., et al., on behalf of themselves
and all other similarly situated,

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Plaintiff,

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CONSOLIDATED CASE
[PROPOSED] ORDER GRANTING
FINAL APPROVAL OF
SETTLEMENT AND ENTERING
FINAL JUDGMENT OF
DISMISSAL WITH PREJUDICE

v.
ABBOTT LABORATORIES,

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Defendant.
Date:
August 11, 2011
Time:
2:00 p.m.
Courtroom: 2

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The Honorable Claudia Wilken
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This matter has come before the Court to determine whether there is any cause why this

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Court should not approve the settlement with defendant Abbott Laboratories and Class Customer

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Plaintiffs, pursuant to Rules 23(e) and 54(b) of the Federal Rules of Civil Procedure, and in

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accordance with the terms of the Settlement Agreement, dated April 6, 2011. The Court, after

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carefully considering all papers filed and proceedings held herein and otherwise being fully

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informed in the premises, has determined: (a) the settlement is fair and reasonable and should be
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[PROPOSED] ORDER

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finally approved; (b) the proposed plan of allocation of the Settlement Fund should be approved;

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(c) the proposed awards of attorneys’ fees and reimbursement of the expenses to Class Counsel

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should be approved; (d) incentive awards should be awarded to the named plaintiffs; and (e) a

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final judgment terminating this litigation should be entered. Good cause appearing therefore, it

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is:

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ORDERED, ADJUDGED AND DECREED that:

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1.

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This Court has jurisdiction over this Customer Class Action and each of the parties

to the Settlement Agreement including all Class Members.
2.

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This Order and Final Judgment incorporates by reference the definitions in the

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Settlement Agreement and all terms used herein shall have the same meanings set forth in the

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Settlement Agreement. As set forth in the Preliminary Approval Order [D.E. 508], dated April

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20, 2011, the previously certified Class is defined as follows:

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All persons or entities in the United States who purchased Norvir and/or Kaletra

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directly from Abbott Laboratories (“Abbott”) or any of its divisions, subsidiaries,

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predecessors, or affiliates during the period from December 3, 2003 through

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August 27, 2008 (“Class Period”).

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Excluded from the Class are Abbott and its divisions, subsidiaries, predecessors or
affiliates, all governmental entities, and the following additional entities: American
Sales Company, Inc.; Caremark, L.L.C.; CVS Pharmacy, Inc., Eckerd
Corporation; HEB Grocery Company LLP; JCG (PJC) USA, LLC; Maxi Drug,
Inc. d/b/a Brooks Pharmacy; New Albertson’s Inc.; Rite Aid Corporation; Rite Aid
HDGTRS. Corp.; Safeway Inc.,; SmithKline Beecham Corp. d/b/a
GlaxoSmithKline; The Kroger Co.; and Walgreen Co.

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3.

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The Court finds that due notice was given in accordance with the Preliminary

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Approval Order, and that the form and content of the Notice, Publication Notice, and Proof of

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Claim, and the procedures for publication, mailing, and distribution thereof as set forth in the

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Preliminary Approval order, satisfy the requirements of Fed. R. Civ. P. 23(e) and due process and

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constitute the best notice practicable under the circumstances.

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[PROPOSED] ORDER

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4.

Due to the adequate notice of the proceedings having been given to the Class and a

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full opportunity having been offered to the Class to participate in the fairness hearing, and given

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that no members of the Class have opted out, it is hereby determined that all Class Members are

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bound by this Order and Final Judgment.

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5.

The settlement of this Customer Class Action as to Abbott was not the product of

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collusion between Customer Plaintiffs and Defendant or its counsel, but rather was the result of

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bona fide and arm’s-length negotiations conducted in good faith between Class Counsel and

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Abbott’s Counsel.

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6.

The Court has held a hearing to consider the fairness, reasonableness and adequacy

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of the proposed settlement, and has been advised that there have been no objections to the

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settlement from any members of the Class.

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7.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby

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finally approves in all respects the Settlement as set forth in the Settlement Agreement and finds

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that the Settlement is in all respects, fair, reasonable, adequate, and in the best interests of the

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Class. The Court further approves the establishment of the Settlement Fund upon the terms and

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conditions set forth in the Settlement Agreement. The parties are hereby directed to carry out the

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Settlement in accordance with its terms and provisions.

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8.

The Court approves the Plan of Allocation of Settlement Proceeds as proposed by

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Class Counsel as fair and reasonable. Epiq Systems, Inc., the company the Court previously

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appointed as claims administrator (“Claims Administrator”), is directed to administer the

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Settlement in accordance with the terms and conditions of the Settlement Agreement.

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expenses incurred by the Class Administrator must be reasonable, are subject to Court approval,

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and shall be payable solely from the Settlement Fund. The Claims Administrator will distribute

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the Settlement Funds to the Class on a pro rata basis in the manner described in the Plan of

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Allocation.

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9.

All

All claims in the above-captioned action against Abbott are hereby dismissed with

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prejudice, and without costs, with the Court retaining jurisdiction for the limited purpose of

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enforcing compliance with the terms and conditions of the Settlement Agreement and this Order
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[PROPOSED] ORDER

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and Final Judgment. All Released Claims of the Customer Plaintiffs and Customer Class in the

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above-captioned Action are released and dismissed with prejudice, and, except as provided for in

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the Settlement Agreement, without costs.

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10.

All Class Members shall be forever enjoined and barred from asserting any of the

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matters, claims or causes of action released by the Settlement Agreement, and all Class Members

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shall be deemed to have forever release any and all such matters, claims and causes of action as

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provided in the Settlement Agreement.

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11.

Class Counsel are awarded Attorneys’ Fees and Expenses in the amount of one-

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third of the gross settlement amount – i.e., one-third of $52 million, or $17,333,333.33 – for

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attorneys’ fees and reasonable costs and expenses of $1,901,251.13 incurred in the representation

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of the Customer Class, for a total Attorneys’ Fees and Expenses award of $19,234,584.46. The

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Court finds that the amount of Attorneys’ Fees and Expenses awarded is fair and reasonable. The

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award of Attorneys’ Fees and Expenses shall be allocated among Class Counsel in a fashion

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which, in the opinion of Co-Lead Counsel, fairly compensates Class Counsel for their respective

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contributions in the prosecution of this Action. The Attorneys’ Fees and Expenses awarded shall

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be paid out of the Settlement Fund.

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12.

Neither this Order and Final Judgment, the Settlement Agreement, nor any of its

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terms or the negotiations or papers related thereto shall constitute evidence or an admission by

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any party or Release that any acts of wrongdoing have been committed, and they shall not be

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deemed to create any inference that there is any liability therefore. Neither this Order and Final

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Judgment, the Settlement Agreement, nor any of the terms or negotiations or papers related

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thereto shall be offered or received in evidence or used for any purpose whatsoever, in this or any

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other matter or proceeding in any court, administrative agency, arbitration or other tribunal, other

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than as expressly set forth in the Settlement Agreement.

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13.

Without affecting the finality of the judgment, the Court retains exclusive

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jurisdiction over the Settlement Agreement, including the administration and consummation of

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the Settlement Agreement, Plan of Allocation, and in order to determine any issues relating to the

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attorneys’ fees and expenses and any distribution to members of the Class. In addition, without
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affecting the finality of this judgment, Defendants and each member of the Class hereby

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irrevocably submit to the exclusive jurisdiction of the United States District Court for the

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Northern District of California, for any suit, action, proceeding or dispute arising out of or

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relating to the Settlement Agreement or the applicability of the Settlement Agreement, including,

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without limitation any suit, action, proceeding or dispute relating to the release provisions therein.

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14.

The Class Representatives Meijer Inc., Louisiana Wholesale Drug Co., Inc., and

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Rochester Drug Cooperative are each hereby awarded $60,000, to be paid out of the Settlement

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Fund, for representing the Customer Class, which amount is in addition to whatever monies these

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plaintiffs will receive from the Settlement Fund pursuant to the Plan of Allocation. This Court

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finds these awards to be fair and reasonable.

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15.

In the event the Settlement does not become final, this Order and Final Judgment

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shall be rendered null and void as provided by the Settlement Agreement, shall be vacated, and all

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orders entered and releases delivered in connection herewith shall be null and void to the extent

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provided by and in accordance with the Settlement Agreement.

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The Court hereby directs that this judgment be entered by the clerk forthwith

pursuant to Federal Rule of Civil Procedure 54(b).

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August
SO ORDERED this the 11th day of _______, 2011.
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____________________________
Hon. Claudia Wilken
U.S. District Court for the
Northern District of California

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