In re: Just for Men Mass Tort Litigation

Filing 13

Case Management Order #5 - Establishing Common Benefit Fee and Expense Fund. Signed by Judge David R. Herndon on 3/9/2017. (Attachments: # 1 Exhibit A)(ceh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

IN RE JUST FOR MEN® MASS TORT

3:16-cv-00638-DRH

LITIGATION

Hon. David R. Herndon

This Document Applies To All Actions

EXHIBIT A TO CMO #5
(Common Benefit Participation Agreement)
THIS AGREEMENT is made this ____ day of _____________, 20__, by and
between the Plaintiffs’ Steering Committee (“PSC”) appointed by the United States
District Court for the Southern District of Illinois in Just For Men® Mass Tort

Litigation 3:16-cv-00638-DRH 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 Richard W. Schulte, Roger C. Denton, John J. Driscoll,
Kristine K. Kraft, Joseph Osborne, Jon C. Conlin, Angela Mason, Jay Urban and
Tad Thomas to serve as members of the PSC to facilitate the conduct of pretrial
proceedings in the federal actions relating to the use, marketing, and sales of Just

For Men® hair color products. 1
WHEREAS, the PSC in association with other attorneys working for the
common benefit of plaintiffs have developed or are in the process of developing

The United States District Court for the Southern District of Illinois has appointed Richard
W. Schulte and Roger C. Denton to serve as Co-Lead Counsel and has appointed Kristine K. Kraft
to serve as Liaison Counsel.
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work product that will be valuable in all proceedings involving Just For Men®
personal injuries (“PSC Common Benefit Work Product”) and
WHEREAS, the Participating Counsel are desirous of acquiring the PSC
Common

Benefit

Work

Product

and

establishing

an

amicable,

working

relationship with the PSC 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:
I.

SCOPE OF AGREEMENT
A.

Purpose.

This Participation Agreement is a private cooperative agreement between
plaintiffs’ attorneys to share “Common Benefit Work Product” with regard to
personal injury claims resulting from the use of Just For Men® by Participating
Counsel pursuant to the Order Establishing Common Benefit Fee and Expense
Fund and this Participation Agreement.

Plaintiffs’ attorneys who execute this

Agreement (“Participating Counsel”) are 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.
B.

Early Participation vs. Late Participation. For any counsel who

enters into this Participation Agreement within 20 days of the entry of this Order
or 20 days of their first case being docketed in the Mass Tort Litigation or any
other jurisdiction working cooperatively with the Mass Tort Litigation PSC, the
assessment

shall

Participation”).

be

8%

as

computed

and

determined

below

(“Early

For any counsel who enters into this Participation Agreement

after 20 days of the entry of this Order or 20 days of their first case being
docketed in the Mass Tort Litigation or any other jurisdiction working

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cooperatively with the Mass Tort Litigation PSC (whichever is later), the
assessment

shall

be

10%

as

computed

and

determined

below

(“Late

Participation”).
C.

Rights and Obligations of Participating Counsel.

Upon execution of this Participation Agreement, the PSC will provide access
to Participating Counsel, the common benefit work product defined in the Court’s
Case Management Order to which this Exhibit “A” is attached, including access to
the PSC’s 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 attorneys’ fee regardless of what that interest is, who has filed a
civil action arising from the use, marketing, and/or sale of JUST FOR MEN®
together with the Court and docket number of each such case and shall produce a
list that contains the name of each client represented by them and/or in which
they have an interest in the attorneys’ fee regardless of what that interest is, who
has not yet filed a civil action arising from the use, marketing, and sale of JUST

FOR MEN®. Participating Counsel shall supplement the lists on a quarterly basis
and provide this list to Liaison Counsel, Kristine Kraft at [e-mail].
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 and the provisions set forth below

and the terms of the corresponding Case Management Order, all Plaintiffs and
their attorneys who, either agree or have agreed — for a monetary consideration
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— 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 settlement amount, “gross
monetary recovery,” as provided herein.
A.

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, 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 state court as well as any unfiled or tolled cases of such
attorneys in which they are counsel or co-counsel.
B.

Assessment Amount.
(a)

Early Participation – The assessment amount shall be eight (8)

percent (four (4) percent for common benefit attorneys’ fees and two (4) percent
for costs) for Early Participation Counsel;

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(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.
C.

Covered Cases.

The assessment amount set forth above and in the related Order shall apply
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, 3:16-cv-00638-DRH regardless of whether or not the
plaintiff’s attorney is either Participating or Non-Participating Counsel. Counsel
who sign the Participation Agreement further agree that the assessment shall
apply to all un-filed cases, tolled cases, and/or cases filed in state court in which
they have a fee interest, regardless of the size of that fee interest.
D.

Attorney Fee Lien

With respect to each client who they represent in connection with JUST

FOR MEN® related claims that are filed or pending in any Federal court, un-filed
or subject to a tolling agreement, consistent with ¶ II.B.3 of the associated Case
Management Order Establishing Common Benefit Fee and Expense Fund (Order
#5) each Participating Counsel shall agree to have Defendants deposit or cause to
be deposited in the JUST FOR MEN® Fee and Expense Fund established by
Judge Herndon in the Mass Tort Litigation, a percentage proportion of the gross
amount recovered by each such client that is equal to the assessment amount. In
the event Defendants do not deposit such funds into the Fund, Plaintiff and
Plaintiff’s Participating Counsel shall deposit or cause to be deposited in the JUST
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FOR MEN® Fee and Expense Fund, a percentage proportion of the gross amount
recovered by each such client that is equal to the assessment amount.
Participating Counsel, on behalf of themselves, their affiliated counsel, and their
clients, hereby grant and convey to the PSC a lien upon and/or a security interest
in any fee generated as a result of any recovery by any client who they represent in
connection with any JUST FOR MEN® induced injury and marketing and sales
practices, to the full extent permitted by law, in order to secure payment in
accordance with the provisions of this Agreement.

Participating Counsel will

undertake all actions and execute all documents that are reasonably necessary to
effectuate and/or perfect this lien and/or security interest.
E.

Attorney-Client Contracts.

Both the PSC and Participating Counsel recognize the importance of
individual cases and the relationship between case-specific clients and their
attorneys. Regardless of the type of settlement or conclusion eventually made in
either state or federal cases, the PSC will recommend to this Court that
appropriate consideration will be given to individual case contracts between
attorneys and their clients.
III.

COMMON BENEFIT EXPENSES.
A.

Qualified Expenses Eligible for Reimbursement.

In order to be eligible for reimbursement of common benefit expenses, said
expenses must meet the requirements of this section. Specifically, said expenses
must be (a) for the common benefit, (b) appropriately authorized and timely

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submitted, (c) within the defined limitations set forth in this Participation
Agreement and associated Order, and (d) verified.
B.

Authorization and Submission of Expenses.

Participating Counsel must submit expenses consistent with the Order of
this Court. Expenses spent on matters common to all claimants in Just For Men®

Mass Tort Litigation 3:16-cv-00638-DRH that have been assigned by the Co-Lead
or Liaison Counsel.
The Special Master shall review all expenses submitted for reimbursement
and evaluate whether they were expended in furtherance of the common good in
making recommendations as to whether they should be reimbursed.
C.

Verification.

The forms detailing expenses shall be certified by a senior partner in each
firm attesting to the accuracy of the submissions. Attorneys shall keep receipts
for all expenses. Credit card receipts are an appropriate form of verification so
long as accompanied by a declaration from counsel that work was performed and
paid for the common benefit.
Expense records shall be electronically submitted to Kristine K. Kraft, of
Schlichter, Bogard & Denton at [e-mail] on a monthly basis.
Untimely submission of expense records will result in a waiver of said expenses.
IV.

COMMON BENEFIT WORK.
A.

Qualified Common Benefit Work Eligible for Reimbursement.

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In order to be eligible for reimbursement for time and efforts expended for
common benefit work, said time and efforts must be (a) for the common benefit,
(b) appropriately authorized, (c) timely submitted and (d) approved by this Court.
B.

Eligibility.

Participating Counsel are prohibited from sharing Common Benefit Work
Product with Non-Participating Counsel, as defined herein. Participating Counsel
eligible to perform common benefit authorized by Plaintiffs’ Co-Lead Counsel and
Liaison Counsel.
C.

Authorization.

Time spent on matters common to all claimants in Just For Men® Mass

Tort Litigation 3:16-cv-00638-DRH must be assigned by the Co-Lead or Liaison
Counsel to be eligible for consideration for common benefit. No time spent on
developing or processing individual issues in any case for an individual client
(claimant) will be considered or should be submitted, nor will time spent on
unauthorized work.
(1) Examples of Authorized and Unauthorized work include:
a. Depositions of corporate witnesses:

Any Participating

Attorney may attend any deposition, however, if you have
not been designated as one of the authorized questioners or
otherwise authorized to attend the deposition on behalf of
the PSC (or you are not one of the examiners designated
and/or authorized by court-appointed state litigation co-lead
or liaison counsel) your time and expenses shall not be

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considered common benefit work, rather you are attending
on behalf of your individual clients;
b. Periodic PSC, Mass Tort Litigation or Full-Committee
Conference Calls: These calls are held so that individual
attorneys are kept up-to-date on the status of the litigation
and participation by listening to such calls is not common
benefit work.

Each attorney has an obligation to keep

themselves informed about the litigation so that they can
best represent their clients and that is a reason to listen in
on those calls. The attorneys designated by Co-Lead and
Liaison Cousnel to run those calls are working for the
common benefit by keeping other lawyers informed and
educated about the case, and their time will be considered
for common benefit. Nothing in this paragraph shall be
contrued to prevent members of the PSC from submitting
common

benefit

time

for

participation

in

PSC

communications that are germaine to all members of the
PSC and are necessary to fulfill their PSC obligations;
c. Periodic Status Conferences:

Regular status conferences

are held so that the litigation continues to move forward
and legal issues are resolved with the Court.

Individual

attorneys are free to attend any status conference held in
open court in order to keep up-to-date on the status of the
litigation and participation by attending and listening to
such conferences is not common benefit work.

Each

attorney has an obligation to keep themselves informed
about the litigation so that they can best represent their
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clients. Mere attendance at a status conference will not be
considered a common benefit expense or common benefit
time. The attorneys designated by Co-Lead and Liaison
Cousnel to address issues that will be raised at a given
status confernece or requested by Co-Lead or Liaison
Counsel to be present at a status conference are working for
the common benefit and their time will be considered for
common benefit. Similarly, any attorney whose attendance
at a status conference is specifically requested by the Judge
in that case, may submit their time to the Fee Committee
for evauation as common benefit time;
d. Identification and Work Up of Experts: If a Participating
Attorney travels to and retains an expert without the
knowledge and approval of the co-leads or Liaison Counsel
they understand that the Mass Tort Litigation may not need
or use that expert and their time and expenses may be
determined

to

not

be

considered

common

benefit

expenses/work and therefore not compensable;
e. Attendance at Various Seminars: Attendance at a seminar
that has as an agenda item information about the Just For

Men® litigation is not common benefit work or a common
benefit expense;
f. Document Review:

Only document review specifically

assigned and authorized to an attorney will be considered
common benefit work.

If an attorney elects to review

documents that have not been assigned to that attorney by

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co-Lead or Liaison Counsel that review is not considered
common benefit;
g. Review of Pleadings and Orders:

Each attorney has an

obligation to keep themselves informed about the litigation
so that they can best represent their clients and review of
Pleadings and Orders is part of that obligaiton. Only those
attorneys designated by Co-Lead and Liaison Counsel to
review and summarize those pleadings or Orders for the
Mass Tort Litigation are working for the common benefit
and their time will be considered for common benefit. All
other counsel are reviewing those Pleadings and Orders for
their own benefit and the benefit of their own clients and
the review is not considered common benefit;
h. Review of Discovery Responses: Each attorney has an
obligation to keep themselves informed about the litigation
so that they can best represent their clients and that is a
reason to review discovery responses served in this
litigation. Only those attorneys designated by Co-Lead and
Liaison Counsel to review and summarize those discovery
responses for the Mass Tort Litigation are working for the
common benefit and their time will be considered for
common benefit.

All other counsel are reviewing those

discovery responses for their own benefit and the benefit of
their own clients and the review is not considered common
benefit;

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i. In the event you are unsure if the action you are about to
undertake is considered a common benefit action, you
should ask Co-Lead or Liaison Counsel.
D.
All

Time Keeping and Submission of Time Records.
time

must

be

accurately

and

contemporaneously

maintained.

Participating Counsel shall keep a daily record of their time spent in connection
with common benefit work on this litigation, indicating with specificity the hours,
location and particular activity (such as “conducted deposition of John Doe.”).
Time entries that are not sufficiently detailed will not be considered for common
benefit payments.

All common benefit work time for each firm shall be

maintained in a tenth-of-an-hour increment.
1.

All time submissions must be incurred only for work

authorized under this Participation Agreement.
2.

All time submissions must be made on the forms provided by

the PSC.
3.

All time and expenses are subject to proper and timely

submission (on the 15th of each month beginning on November 15,
2016 of contemporaneous records certified by a partner in the
submitting firm, which must be timely received within thirty (30)
days after the 115th of the previous month. The initial submission
shall include all Common Benefit time and expense incurred prior to
and including November 15, 2016.
4.

All time submissions must be electronically sent in the

designated form on a monthly basis to the attention of Kristine K.
Kraft

of

the

law

firm

of

Schlichter

Bogard

&

Denton

at

[e-mail] so they can be reviewed, compiled, and

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submitted to the Court at the appropriate time. It is therefore
essential that each firm, on a monthly basis, timely submit it records
for the preceding month.
5.

Failure to provide timely records shall result in a waiver of

attorney’s fees claimed for the time period in the untimely
submission.
E.

Distribution of Fees.
1.

No Individual Rights to the Funds - 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 this Court. These
funds will not constitute the property of any party or attorney or be 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. These limitations do not prelude a party or attorney from
transferring, assigning, or creating a security interest in potential
disbursements from the fund if permitted by applicable state laws and if
subject to the conditions and contingencies of this Agreement.
2.

Court Approval – The amounts deposited in the JUST FOR

MEN® Fee Fund shall be available for distribution to attorneys who have
performed professional services or incurred expenses for the common
benefit.

The Mass Tort Litigation Court retains jurisdiction over any

common benefit award.

Each Participating Counsel who does common

benefit work has the right to present their claim(s) for compensation prior
to any recommendation to the Court.
3.

Special Master – I understand that at a later date the Court will

appoint a Special Master to make recommendations to the Court on the
appropriate distributions from the common benefit and expense funds.
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___ EARLY PARTICIPATION ELECTION
Dated:

___________, 20__

_______________________________
Firm Name:
Attorney’s Name:

I elect to be an Early Participating Counsel and hereby certify that I am signing
this Participation Agreement within 20 days of (a) the entry of the Common
Benefit Order in Mass Tort Litigation 3:16-cv-00638-DRH, (b) the date my first
case was docketed in the Mass Tort Litigation, or (c) the date my first case was
docketed in state court. I also certify that have the authority and power to bind
my law firm into this Participation Agreement.

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___ LATE PARTICIPATION ELECTION
Dated:

___________, 20__

_______________________________
Firm Name:
Attorney’s Name:

I elect to be a Late Participating Counsel and hereby certify that I am signing this
Participation Agreement after the passage of 20 days since (a) the entry of the
Common Benefit Order in Mass Tort Litigation 3:16-cv-00638-DRH, (b) the date
my first case was docketed in the MDL, or (c) the date my first case was
docketed in state court. I also certify that have the authority and power to bind
my law firm into this Participation Agreement.
___ NON-PARTICIPATION ELECTION
Dated:

___________, 20__

________________________________
Firm Name:
Attorney’s Name:

I elect to be a Non-Participating Counsel and I understand that I will not be
entitled to Mass Tort Litigation common benefit work product. I also certify that
have the authority and power to bind my law firm into this Participation
Agreement.
AND

PLAINTIFFS’ STEERING COMMITTEE
Dated:

___________, 20__

________________________________
Kristine K. Kraft
Plaintiffs’ Liaison Counsel

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