American Sales Company, Inc. v. Novo Nordisk A/S et al
Filing
68
Order and Final Judgment Approving Class Action Settlement Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
IN RE PRANDIN DIRECT
PURCHASER ANTITRUST
LITIGATION
C.A. No. 2:10-cv-12141-AC-DAS
THIS DOCUMENT RELATES TO:
Magistrate Judge Donald A. Scheer
Judge Avern Cohn
ALL ACTIONS
ORDER AND FINAL JUDGMENT
APPROVING CLASS ACTION SETTLEMENT
WHEREAS, Plaintiffs American Sales Company, LLC and Rochester Drug
Co-Operative, Inc. (“Plaintiffs”) executed a Settlement Agreement with
Defendants Novo Nordisk A/S and Novo Nordisk, Inc. (“Defendants”) to fully
resolve this antitrust class action case;1
WHEREAS, on October 2, 2014, this Court granted preliminary approval of
the proposed settlement;2
WHEREAS, on November 18, 2014, Plaintiffs moved for an award of
attorneys’ fees, reimbursement of expenses, and payment of incentive awards to
the class representatives;
WHEREAS, on December 16, 2014, Plaintiffs moved for an order of final
approval of the Settlement of this action;
1
2
Settlement Agreement (Doc. No. 58-2).
Order, October 2, 2014 (Doc. No. 64) ¶ 4.
WHEREAS, on January 14, 2014, the Court held a fairness hearing in this
action;
NOW, THEREFORE, this 20th day of January, 2015, upon the motions of
Plaintiffs and all papers submitted and proceeding held herein, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED as follows:
I.
Jurisdiction
1.
This Court has personal jurisdiction over the Plaintiffs, the class, and
Defendants, and subject matter jurisdiction over the action.
II.
2.
Certification of the Class
The Court previously certified for settlement purposes the following
class: All persons and entities in the United States and its Territories who
purchased Prandin directly from Defendants from May 6, 2009 until the June 30,
2014. Excluded from the Class are Defendants and their parents, employees,
subsidiaries, and affiliates, and all federal governmental entities.3
III.
3.
Notice to the Class
The Court previously approved the form and method of notice
employed here. The notice constituted the most effective and best notice
practicable under the circumstances and was due and sufficient notice for all other
3
Id. ¶ 2.
2
purposes to all potential class members entitled to receive notice.4
4.
Class Counsel, through court-appointed Settlement Administrator
Rust Consulting, Inc., caused notice to be provided to all class members in full
compliance with the requirements of Fed. R. Civ. P. 23 and due process by first
class mail on or about October 17, 2014. The deadline for objecting or requesting
exclusion was December 1, 2014. No class member has objected or requested
exclusion from the class.5
IV.
Final Approval of the Settlement
5.
The Settlement resulted from the parties’ detailed investigation of the
facts and substantial motion practice. It was reached only after arm’s-length
negotiations, undertaken in good faith by Class Counsel and counsel for
Defendants.
6.
The Settlement provides a recovery for the class in the amount of $19
million in cash.
7.
The Court has evaluated the proposed settlement under Rule 23 of the
Federal Rules of Civil Procedure, as well as relevant Sixth Circuit jurisprudence,
including the factors set forth in Int’l Union, United Auto., Aerospace & Agric.
4
Id. ¶ 5.
As of the date of Plaintiffs’ final approval submission, no class member had
objected or requested exclusion. Declaration of Kathy Larson of Rust Consulting,
Inc. (“Larson Decl.”) at ¶ 3. Class Counsel confirmed at the fairness hearing that
no such requests had been received since then.
5
3
Implement Workers of Am. (UAW) v. General Motors Corp., 497 F.3d 615, 632
(6th Cir. 2007), finding as follows:
a.
The likelihood of success on the merits weighed against the
amount and form of the relief offered in the settlement. “The fairness of
each settlement turns in large part on the strength of the parties’ legal
dispute.”6 When considering the fairness of a class action settlement, courts
assess it “with regard to a ‘range of reasonableness,’ which ‘recognizes the
uncertainties of law and fact in any particular case and the concomitant risks
and costs necessarily inherent in taking any litigation to completion.’”7 This
case involved numerous, complex legal issues and Plaintiffs’ success was
not certain. The risk of the class ultimately receiving nothing was
substantial. “All litigation poses risks of course, but antitrust litigation
especially so.”8 These risks must be weighed against the settlement
consideration: $19 million in cash, which is plainly valuable to the class
members. Weighing the risk and uncertainty of litigation against the
settlement benefits tilts the scale toward approval.
b.
The complexity, expense, and likely duration of further
6
In re S.E. Milk Antitrust Litig., 2:07-CV-208, 2013 WL 2155379, at *3 (E.D.
Tenn. May 17, 2013).
7
In re Packaged Ice Antitrust Litig., Case No. 08-MDL-01952, 2011 WL 6209188,
at *10 (E.D. Mich. Dec. 13, 2011).
8
In re Southeastern Milk, 2013 WL 2155379, at *4.
4
litigation. “Settlements should represent ‘a compromise which has been
reached after the risks, expense and delay of further litigation have been
assessed.’”9 “[T]he prospect of a trial necessarily involves the risk that
Plaintiffs would obtain little or no recovery.”10 This is particularly true for
class actions, which are “inherently complex.”11 “[S]ettlement avoids the
costs, delays, and multitude of other problems associated with them.”12 In
the absence of this settlement, litigation would have continued for years at
significant additional expense. This settlement ensures that class members
will receive their recoveries without further delay and without incurring
further expense.
c.
The opinions of Class Counsel and class representatives. In
deciding whether a proposed settlement warrants approval, Class Counsel’s
judgment “that the settlement is in the best interest of the Class ‘is entitled to
significant weight, and supports the fairness of the class settlement.’”13
9
In re Cardizem CD Antitrust Litigation, 218 F.R.D. 508, 523 (E.D. Mich. 2003)
(quoting Williams v. Vukovich, 720 F. 2d 909, 921-23 (6th Cir. 1983)).
10
Id.
11
In re Southeastern Milk, 2013 WL 2155379, at *5 (citing In re Telectronics
Pacing Sys., Inc., 137 F. Supp. 2d 985, 1013 (S.D. Ohio 2001)).
12
Id.
13
In re Southeastern Milk, 2013 WL 2155379, at *5; In re Packaged Ice Antitrust
Litig., Case No. 08-MD-01952, 2011 WL 717519, at *11 (E.D. Mich. Feb. 22,
2011) (quoting Sheick v. Auto. Component Carrier LLC, Case No. 2:09-cv-14429,
2010 WL 4136958, at *18 (E.D. Mich. Oct. 18, 2010); In re Packaged Ice, 2011
WL 6209188, at *12.
5
Class Counsel have extensive experience in handling pharmaceutical
antitrust and other complex litigation.14 They negotiated this settlement at
arm’s-length over a period of months with well-respected and experienced
counsel for Defendants. Each class representative also has experience in
litigating pharmaceutical antitrust cases and evaluated the strength of the
settlement, finding that it was fair and reasonable.
d.
The amount of discovery engaged in by the parties. Plaintiffs
undertook a substantial investigation of the case. Ultimately, Plaintiffs
reviewed over 300,000 pages of documents of Caraco documents produced
pursuant to subpoena.15 Class Counsel’s thorough analysis of the documents
fully informed the decision to enter into the settlement and Class Counsel
had sufficient information to allow them to evaluate the fairness of the
settlement.16
e.
The reaction of absent class members. The absent class
members also support the settlement. After receiving individual, mailed
notice, no member of the class objected to the settlement and no member of
14
See Declaration of Co-Lead Counsel in Support of Plaintiffs’ Motion for
Preliminary Approval (“Co-Lead Counsel Decl.”) dated September 12, 2014 (Doc.
No. 66) ¶¶ 27-31.
15
Id. ¶¶ 19, 21.
16
In re Southeastern Milk, 2013 WL 2155379, at *5 (“Counsel’s recommendation
and that of the class representatives is clearly supported by an incredibly extensive
base of data and this gives added weight and deference to the judgment of trial
counsel and the class representatives.”).
6
the class opted out.17 Counsel for each of the three largest wholesalers –
Cardinal Health, Inc., AmerisourceBergen Corporation, and McKesson
Corporation – have written to the Court directly and affirmatively support
the Settlement. “[T]he scarcity of objections-relative to the number of class
members overall-indicates broad support for the settlement among Class
Members.”18
f.
The good faith of settlement negotiations. There is a
presumption that settlement negotiations were conducted in good faith and
that the resulting agreement was reached without collusion, unless there is
evidence to the contrary.19 Here, settlement came after years of hard-fought
litigation. Class Counsel have extensive experience in proper management
of pharmaceutical antitrust class actions and they negotiated this settlement
at arm’s-length with Defendants’ counsel.
g.
The public interest. “[T]here is a strong public interest in
17
See Larson Decl. ¶7.
In re Southeastern Milk, 2013 WL 2155379, at *6; Sheick, 2010 WL 4136958, at
*22; In re Cardizem, 218 F.R.D. at 527 (“[i]f only a small number of objections are
received, that fact can be viewed as indicative of the adequacy of the settlement”).
19
In re Southeastern Milk, 2013 WL 2155379, at *6; Telectronics, 137 F. Supp. 2d
at 1018 (citing Herbert Newberg & Alba Conte, Newberg on Class Actions §11.51
(3d ed. 1992) (“Courts respect the integrity of counsel and presume the absence of
fraud or collusion in negotiating the settlement, unless evidence to the contrary is
offered.”); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of
Am. (UAW) v. Ford Motor Co., Case Nos. 05-74730, 06-10331, 2006 WL
1984363, at *26 (E.D. Mich. July 13, 2006); Sheick, 2010 WL 4136958, at **1920.
18
7
encouraging settlement of complex litigation and class action suits because
they are ‘notoriously difficult and unpredictable’ and settlement conserves
judicial resources.”20 The settlement also “ends potentially long and
protracted litigation among these parties and frees the Court’s valuable
judicial resources.”21 “Society’s interests are clearly furthered by the private
prosecution of civil cases which further important public policy goals, such
as vigorous competition by marketplace competitors.”22 This litigation,
which sought to hold Defendants accountable for their allegedly
anticompetitive scheme, serves these public policy goals. The resolution of
the case through settlement further benefits the public by providing prompt
compensation to those directly injured by Defendants’ alleged actions.
8.
The Court previously preliminarily approved the plan of distribution
to be employed here. The plan of distribution of the Settlement Fund (Doc. No.
58-5) calls for distribution of the settlement amount, net of attorneys’ fees and
expenses, incentive awards to the class representatives, and other costs as shall be
20
In re Cardizem, 218 F.R.D. at 530 (quoting Granada Invs. Inc. v. DWG Corp.,
962 F.2d 1203, 1205 (6th Cir. 1992)). Accord In re Packaged Ice, 2011 WL
6209188, at *15.
21
In re Southeastern Milk, 2013 WL 2155387, at *7(citing In re Broadwing, Inc.,
ERISA Litig., 252 F.R.D. 369, 376 (S.D. Ohio 2006)).
22
Id. at *5 (citing Pillsbury Co. v. Conboy, 459 U.S. 248, 262-63 (1983) (“This
court has emphasized the importance of the private action as a means of furthering
the policy goals of certain federal regulatory statutes, including the federal antitrust
laws.”)). See also Cardizem, 218 F.R.D. at 534 (“Society also benefits from the
prosecution and settlement of private antitrust litigation.”).
8
allowed by the Court, to all class members pro rata based on the total units of
Prandin purchased directly from Defendants during the class period. The proposed
distribution plan, attached hereto as Exhibit A, satisfies the requirements of Fed. R.
Civ. P. 23(e) and due process, is fair, reasonable and adequate, and is therefore are
finally approved.
9.
Upon consideration of the above factors and the record in this case,
the Settlement Agreement and each of its terms are finally approved as fair,
reasonable, and adequate within the meaning of Rule 23 of the Federal Rules of
Civil Procedure, and the parties are directed to consummate the settlement
according to its terms.
V.
10.
Award of attorneys’ fees, reimbursement of expenses, and payment
of incentive awards to the class representatives.
The Settlement confers a substantial benefit on the class and the value
is immediate and readily quantifiable.
11.
Class Counsel vigorously and effectively pursued class members’
claims before this Court.
12.
The Settlement Fund is a “common fund,” and courts have long
recognized that a lawyer who recovers such a fund is entitled to a reasonable
attorneys’ fee from that fund as a whole.23
See Boeing v. Van Gemert, 444 U.S. 472, 478 (1980); Blum v. Stenson, 465 U.S.
886, 900 n. 16 (1984).
23
9
13.
The percentage-of-the-fund method is the proper method to
compensate Class Counsel in this litigation. The Court concurs with the
observations made by other courts, such as: the lodestar method is cumbersome;
the percentage-of-the-fund approach more accurately reflects the result achieved;
and the percentage-of-the-fund approach has the virtue of reducing the incentive
for plaintiffs’ attorneys to over-litigate or “churn” cases.24
14.
The Court recognizes that the trend in “common fund cases has been
toward use of the percentage method.”25
15.
The Court finds that the requested counsel fee of one-third of the
settlement fund is fair and reasonable and fully justified. The Court finds it is
within the range of fees ordinarily awarded. The Court also finds that the award is
within the range of fee awards in settlements of this type.26
24
In re Southeastern Milk Antitrust Litig., 2013 WL 2155387, at *2; In re F&M
Distrib., Inc. Sec. Litig., Case No. 95-CV-71778-DT, 1999 U.S. Dist. LEXIS
11090, at *8 (E.D. Mich. June 29, 1999).
25
In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 532 (E.D. Mich. 2003)
(courts in the Sixth Circuit have “indicated a preference for the percentage-of-thefund method in common fund cases.”).
26
In re Skelaxin Antitrust Litig., No. 12-cv-83, Doc. 747 (E.D. Tenn. June 30,
2014) (in direct purchaser pharmaceutical antitrust action, awarding a one-third fee
on a $73 million settlement recovery); In re Southeastern Milk, 2013 WL 2155387,
at *3 (“attorneys’ fees requested represent one-third of the settlement fund.
Although the total fee requested is a very large amount . . . the percentage
requested is certainly within the range of fees often awarded in common fund
cases, both nationwide and in the Sixth Circuit.”); In re Tricor Direct Purchaser
Antitrust Litig., No. 05–340, Order and Final Judgment Approving Settlement,
Awarding Attorneys’ Fees and Expenses, Awarding Representative Plaintiff
10
16.
The Court looked at the following factors to determine the
reasonableness of the percentage:
the value of the benefit rendered to the plaintiff class;
the value of the services on an hourly basis;
whether the services were undertaken on a contingent fee basis;
society’s stake in rewarding attorneys who produce such benefits in
order to maintain an incentive to others;
the complexity of the litigation; and
the professional skill and standing of counsel involved on both sides.
After examination of these factors, the Court finds that these factors support
the requested award.27
17.
The results achieved in this case fully support the requested fee. The
Settlement in this case provides a clear benefit to the class: an immediate and
certain payment, divided among a limited national class of direct purchasers, of
$19 million in cash, less attorneys’ fees, expenses, administration costs, and
awards to the named Plaintiffs.
18.
A one-third fee recovery in this matter would equate to a multiplier
of 3.01 to the lodestar incurred through October 31, 2014. This level multiplier is
Incentive Awards, Approving Plan of Allocation, and Ordering Dismissal as to All
Defendants at ¶ 11 (D. Del. Apr. 23, 2009) (approving one-third fee, equaling
approximately $83 million); In re Packaged Ice Antitrust Litig., Case No. 08MDL-01952, 2011 U.S. Dist. LEXIS 150427, at **76-77 ( E.D. Mich. Dec. 13,
2011) (“Importantly, the requested award of close to 30% appears to be a fairly
well-accepted ratio in cases of this type and generally in complex class actions.”).
27
Moulton v. United States Steel Corp., 581 F.3d 344, 352 (6th Cir. 2009) (quoting
Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996)).
11
reasonable in light of what has been routinely accepted as fair and reasonable in
complex matters such as this one.28 Multipliers much higher than the one
requested here are also commonplace in complex pharmaceutical antitrust class
actions.29
19.
Class Counsel bore significant risks. In particular, Plaintiffs here
faced substantial obstacles in attempting to establish antitrust liability, causation,
and damages. The Court or the jury could have found that Caraco’s inability to
come to market, notwithstanding Novo’s alleged conduct, prevented Plaintiffs from
proving causation and damages.30
20.
Antitrust class actions are inherently complex. The legal and factual
See, e.g., Bailey v. AK Steel Corp., Case No. 1:06-cv-468, 2008 U.S. Dist. LEXIS
18838, at *7 (S.D. Ohio Feb. 28, 2008) (awarding multiplier of 3.04, noting that
“[c]ourts typically ... increas[e] the lodestar amount by a multiple of several times
itself” and identifying a “normal range of between two and five”); Manners v.
American General Life Ins. Co., Civil Action No. 3-98-0266, 1999 U.S. Dist.
LEXIS 22880, at *93 (M.D. Tenn. Aug 11, 1999) (3.8 multiplier); In re Cardinal
Health Sec. Litig., 528 F. Supp. 2d. 752, 770 (S.D. Ohio 2007) (multiplier of 5.9).
29
See, e.g., Cardizem, 218 F.R.D. at 533 (noting that direct purchaser class
plaintiffs received a fee award that equated to a lodestar multiplier of 3.7). See
also Tricor, No. 05–340, Order and Final Judgment Approving Settlement,
Awarding Attorneys’ Fees and Expenses, Awarding Representative Plaintiff
Incentive Awards, Approving Plan of Allocation, and Ordering Dismissal as to All
Defendants at ¶ 11 (approving lodestar multiplier of 3.93); Meijer, Inc. v. 3M, No.
04-5871, 2006 WL 2382718 (E.D. Pa Aug. 14, 2006), at *24 (approving a
percentage fee award that translated to a 4.77 multiplier in case that settled after
one year).
30
See Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 859-61 (D.C. Cir. 2008) (generic
manufacturer Andrx was experiencing concurrent manufacturing problems, and the
FDA did not approve Andrx’s ANDA until one year after Biovail withdrew its
claim that that the patent covered Tiazac, proving fatal to the antitrust claim).
28
12
issues are complicated and highly uncertain in outcome. This case was no
exception. As the court noted in Packaged Ice, “[t]his antitrust litigation, like all
litigation of its species, promises to be extremely complex and time intensive and
there is no question that if settlement fails, the Defendants will mount a strong
defense.”31
21.
Class Counsel are qualified in this complex area and performed well
during the case. Several of these firms have also been actively engaged in antitrust
litigation in the pharmaceutical industry for well over a decade. Class Counsel
demonstrated this experience and skill in the efficient and effective prosecution of
this action, and in achieving a relatively quick resolution. As one court observed,
“[t]the quality of work performed in a case that settles before trial is best measured
by the benefit obtained.”32
22.
Counsel for the three largest wholesalers, together accounting for the
2011 U.S. Dist. LEXIS 150427, at *76 (citing In re Linerboard Antitrust Litig.,
292 F. Supp. 2d 631, 639 (E.D. Pa. 2003)). See also Cardizem, 218 F.R.D. at 533
(“Antitrust class actions are inherently complex . . . this extraordinarily complex
case raised a multitude of difficult issues in the areas of antitrust law, patent law,
and laws governing pharmaceutical drugs.”).
32
Behrens v. Wometco Ent., Inc., 118 F.R.D 534, 547-48 (S.D. Fla. 1988). See also
In re Delphi Corp. Securities, Derivative & “ERISA” Litig., 248 F.R.D. 483, 504
(E.D. Mich. 2008) (“The ability of Lead Counsel to negotiate a favorable
settlement in the face of formidable legal opposition further evidences the
reasonableness of the fee award requested.”), F&M Distrib., 1999 U.S. Dist.
LEXIS 11090, at *19 (“The skill and competence of the attorneys for the plaintiffs
was evident, especially when viewed on the basis of the results that they obtained
in this case, while the excellent advocacy skills of the defense counsel . . . were
equally evident”).
31
13
majority of purchases subject to the settlement, have written the Court directly
affirmatively supporting Class Counsel’s fee and expense request.
23.
The Court, therefore, awards Class Counsel attorneys’ fees in the
amount of $6,333,000.00 (six million, three hundred thirty-three thousand dollars),
i.e. one third of the $19 million Settlement Fund, as attorneys’ fees, to be allocated
among Class Counsel, as well as approving reimbursement of $147,975.82 in
expenses, which expenses were reasonable and necessary to the representation of
the Class.
24.
Numerous courts have found it appropriate to specially reward
named class plaintiffs for the benefits they have conferred. As the court noted in
Lonardo v. Travelers Indemnity Company:
Courts within the Sixth Circuit…recognize that, in common
fund cases and where the settlement agreement provides for
incentive awards, class representatives who have had extensive
involvement in a class action litigation deserve compensation
above and beyond amounts to which they are entitled to by
virtue of class membership alone.33
33
706 F. Supp. 2d 766, 787 (N.D. Ohio 2010). See also In re Skelaxin Antitrust
Litigation, No. 12-cv-83, Doc. 747 (E.D. Tenn. June 30, 2014) (in direct purchaser
pharmaceutical antitrust action, awarding a $50,000 incentive award to each class
representative); Cardizem, 218 F.R.D. at 535-36 (awarding $75,000 each to the
corporate class representatives); Meijer, Inc., et al. v. Barr Pharma., Inc., C.A. No.
05-2195, Order and Final Judgment, at ¶ 17 (D. D.C. Apr. 20, 2009) (awarding
$50,000 to five class representatives – a total of $250,000); Tricor, No. 05–340,
Order and Final Judgment Approving Settlement, Awarding Attorneys’ Fees and
Expenses, Awarding Representative Plaintiff Incentive Awards, Approving Plan of
Allocation, and Ordering Dismissal as to All Defendants at ¶ 14 (awarding $50,000
to each of three class representatives).
14
25.
The Class Representatives American Sales Company, LLC and
Rochester Drug Co-Operative, Inc. diligently and completely fulfilled their
obligations to the Class. They stepped forward and pursued the Class’s interests
by filing suit on behalf of the members of the Class and undertaking the
responsibilities attendant upon serving as a named plaintiff. The Class
Representatives also participated in the settlement.
26.
The Class Representatives are each granted an award of $50,000
each, payable from the Settlement Fund, for their role in bringing about this
recovery on behalf of the Class.
VI.
27.
Entry of Final Judgment Binding on the Class and Dismissal of the
Case With Prejudice
No class member timely and validly requested exclusion from the
class. All class members, therefore, are and will forever remain, bound by this
Order and Final Judgment.
28.
This class action is dismissed with prejudice and in its entirety, on the
merits, as to Defendants. This dismissal shall not affect, in any way, Plaintiffs’ or
class members’ rights to pursue any claims other than those released, as set forth in
the Settlement Agreement.
29.
Plaintiffs and all members of the class are permanently enjoined and
barred from instituting, commencing, or prosecuting any action or other
15
proceeding asserting any released claims, as set forth in the Settlement Agreement,
against any released party, either directly, individually, representatively,
derivatively, or in any other capacity, by whatever means, in any local, state, or
federal court, or in any agency or other authority or arbitral or other forum
wherever located.
30.
In no event shall Defendants be obligated to pay anything in addition
to the $19 million settlement fund created pursuant to the Settlement Agreement,
including without limitation, attorneys’ fees, awards to the named class
representatives for their efforts on behalf of the class, escrow costs, taxes, or any
other cost or expense arising from or to be paid as part of the settlement.
31.
This Order and Final Judgment does not settle or compromise any
claims by Plaintiffs or the class against persons or entities other than the released
parties, as set forth in the Settlement Agreement. All rights against any other
person or entity are specifically reserved.
32.
The settlement, this Order and Final Judgment, and/or any and all
negotiations, documents, and discussions associated with it shall be without
prejudice to the rights of any party, shall not deemed or construed to be an
admission or evidence of any kind, including without limitation of any violation of
any statute or law or any liability or wrongdoing by Defendants or an
acknowledgement of defenses by Plaintiffs, or the truth of any of the claims or
16
allegations contained in any pleading in this case or the standing of any party to
assert claims against Defendants or defenses Plaintiffs, and evidence thereof shall
not be discoverable or used directly or indirectly, by any party or any third party, in
any way, whether in this class action or in any other action or proceeding of any
kind whatsoever, civil, criminal or otherwise, before any court, tribunal,
administrative agency, regulatory body or other similar entity, provided, however,
that nothing contained herein shall preclude use of the Settlement Agreement or
this Order and Final Judgment in any proceeding to enforce the Settlement
Agreement.
33.
Without affecting the finality of this Order and Final Judgment, this
Court retains exclusive and continuing jurisdiction over the Settlement and the
Settlement Agreement, including the Settlement Fund and the administration,
consummation, and interpretation of the settlement and Settlement Agreement.
34.
The escrow account established by the parties has been approved by
the Court.34 Defendants have deposited $19 million as the settlement fund into that
escrow account pursuant to the Settlement Agreement, and that escrow fund,
including any accrued interest, is approved as a Qualified Settlement Fund
pursuant to Internal Revenue Code Section 468B and the Treasury Regulations
promulgated thereunder.
34
Order, October 2, 2014, ¶ 11.
17
35.
Pursuant to Federal Rule of Civil Procedure 54, the Court finds that
there is no just reason for delay and hereby directs the entry of final judgment of
dismissal forthwith as to Defendants.
SO ORDERED this 20th day of January, 2015
S/ Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE*
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, January 20, 2015, by electronic and/or ordinary mail.
S/Sakne Chami
Case Manager, (313) 234-5160
*
This Order and Final Judgment Approving Class Action Settlement was prepared by Class
Counsel and signed after review by the Court.
18
Exhibit A
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
IN RE PRANDIN DIRECT
PURCHASER ANTITRUST
LITIGATION
C.A. No. 2:10-cv-12141-AC-DAS
THIS DOCUMENT RELATES TO:
Magistrate Judge Donald A. Scheer
Judge Avern Cohn
ALL ACTIONS
PLAN OF DISTRIBUTION
Plaintiffs propose to distribute the net settlement fund (i.e., the gross
settlement fund, net of any attorneys’ fees, reimbursed litigation expenses, class
representative incentive awards, and/or settlement administration costs approved
by the Court), to class members pro rata based on each class member’s aggregate
share of the total class purchases of Prandin during the class period. Plaintiffs
propose the following schedule to govern the distribution process:
15 days after
entry of final
approval order
Settlement administrator will mail claim forms to all
class members. The claims forms will include
estimated calculations by the settlement
administrator of each class member’s qualifying
purchases, in units, during the class period, based on
the Prandin sales data produced by Defendants.
45 days after
entry of final
approval order
Class members’ deadline to submit executed claim
forms to the settlement administrator. Class
members must either accept the settlement
administrator’s estimated calculation or provide
their Prandin purchase data proving a revised
aggregate purchase amount.
90 days after
entry of final
approval order
Class counsel will submit to the Court a motion for
distribution of the net settlement fund supported by
a declaration of settlement administrator verifying
compliance with the plan of distribution.
Each class member’s distribution amount will be calculated by the
settlement administrator, with the assistance of plaintiff’s economist if necessary,
as follows: for each class member that submits a claim, the settlement
administrator will: (a) sum the total combined purchases made by each class
member during the class period; (b) calculate each class member’s percentage
share of purchases of Prandin by dividing each class member’s total qualifying
purchases in units by the total combined qualifying purchases (in units) made by
all class members combined; and then (c) multiply each class member’s percentage
share of purchases of Prandin by the total dollars in the net settlement fund.
To ensure uniformity, the settlement administrator will use the transactional
sales database produced by Defendants during the litigation to make a calculated
estimate of each class member’s purchases of Prandin during the class period.
Notwithstanding the foregoing, any class member may provide the claim
2
administrator with data or information concerning its Prandin purchases that may
supplement or correct purchase information drawn from the transactional sales
database produced by Defendants during the litigation.
For illustrative purposes, take a class member for whom the manufacturers’
sales data combined showed that it purchased one million units of Prandin during
the class period. The settlement administrator would first take that figure (one
million units) and divide it by the total amount of Prandin in units purchased
during the class period by all class members to get that class member’s percentage
share of the total. For these purposes, assume that all class members combined
bought one hundred (100) million units of Prandin during the class period. Thus,
in this example, the class member’s percentage share of purchases of Prandin
would be one million units divided by one hundred (100) million units, or 1%.
That class member’s share would then be multiplied by the net settlement fund
allocable to all class members to yield the class member’s net distribution amount
in dollars. If the net settlement fund were $10 million, in this example, the class
member would receive 1% of $10 million or $100,000.
Plaintiffs respectfully submit that the proposed plan of distribution is fair,
reasonable, and adequate, and should be approved.
3
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