BROWN, et al v. AMERICAN HOME PROD, et al

Filing 5306

MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9490. SIGNED BY HONORABLE HARVEY BARTLE, III ON 6/30/2017. 6/30/2017 ENTERED AND COPIES MAILED AND E-MAILED TO LIAISON COUNSEL. (SEE PAPER # 110591 IN 11-MD-1203) (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION

MDL NO. 1203

THIS DOCUMENT RELATES TO:
SHEILA BROWN, et al.
v.

AMERICAN HOME PRODUCTS
CORPORATION
NO. 99-20593

MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO.

Bartle, J.

June 30, 2017
Before the court is the petition of Levin Sedran

& Berman ("Levin"), in its respective capacities as Plaintiffs'
Liaison Counsel ("PLC"),
Class Counsel,

co~Lead

Counsel for the Plaintiffs, and

for an award of attorneys' fees and expense

.

reimbursements relating to work performed from January 1, 2016
through December 31, 2016.

This court has previously awarded

fees in Pretrial Order ("PTO") Nos.
9102,

9294,

7763A, 8516, 8646,

8869,

9398, and 9465.

Levin seeks an aggregate award of attorneys' fees in
the amount of $601,400 from the AHP Settlement Trust (the
"Trust")

in accordance with the stipulation approved in PTO

No. 9297 between Wyeth and Class Counsel that described, among

other things, the terms of funding of future awards and
class-related fees.
Additionally Levin requests an award of attorneys'
fees in the amount of $601,400 from the MDL 1203 Fee and Cost
Account for MDL-related services performed during 2016.
Finally Levin incurred a total of $18,519.58 in
litigation expenses during 2016.

This court has already

authorized payment of $14,548.61 of expenses from the MDL 1203
Fee and Cost Account.

Pursuant to PTO No. 7763, Levin seeks an

order directing the Trust to reimburse $7,274.31 to the MDL 1203
Fee and Cost Account.

Levin petitions for reimbursement of the

remaining $3,970.97 in out-of-pocket expenses advanced by Levin
to be allocated for payment to Levin as $1,985.48 from the Trust
related to class action work and $1,985.49 from the MDL 1203 Fee
and Cost Account.
I.

In February _2017 the court-appointed auditor, Alan B.
Winikur, C.P.A., filed his Twelfth Audit Report setting forth
the results of his audit of the professional time and expenses
reported by counsel as eligible for payment or reimbursement for
the period from January 1, 2016 through December 31, 2016.

In

this Report Mr. Winikur states that one law firm, Levin, has
performed compensable "common benefit" work for the class during
2016.

He reports that during 2016, Levin performed 955.5 hours
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of professional work.

According to Mr. Winikur, the lodestar

value of this work was $601,400.

The total amount of

reimbursable expenses incurred by Levin during 2016 was
$18,519.58.

Mr. Winikur advises that the court has previously

authorized payment of bona fide common benefit expenses from the
MDL Cost and Fee Account during 2016 in the total amount of
$14,548.61.

The amount of outstanding reimbursable expenses is

$3,970.97.
On June 8, 2017 Mr. Winikur filed a supplement to the
Twelfth Audit Report.

In the supplement Mr. Winikur clarified

the breakdown of the 955.5 hours of professional work performed
by Levin into two categories:

(1)

the number of hours that were

spent by Levin doing work related to the class action, and
(2) the number of hours that were spent by Levin doing work
related the MDL 1203.

His report states that Levin performed

870.5 of the 955.5 hours on class action work and the remaining
85 hours on MDL-related work.
We have previously noted that two funds exist for the
purpose of paying attorneys' fees:

(1) the consolidated Fund A

Escrow Account to pay attorneys in connection with Fund A and
Fund B benefits related to the class action, and (2) the MDL
1203 Fee and Cost Account to pay for attorneys' fees and costs
associated with the work of the Plaintiffs' Management Committee
("PMC"), PLC, and attorneys authorized by those two groups to
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work on behalf of the plaintiffs in the MDL 1203 or coordinated
state proceedings.

See In re Diet Drugs Prods. Liab. Litig.,

2010 WL 3292787, at *2 (E.D. Pa. Aug. 19, 2010).

The

consolidated Fund A Escrow Account was created with an initial
payment by Wyeth.

As of January 31, 2014 the consolidated

Fund A Escrow Account had a total balance of $1,790.92.

On

June 17, 2014 this court authorized the termination of the
consolidated Fund A Escrow Account and directed the Escrow Agent
for that account to pay the funds therein to the Trust.

See In

re Diet Drugs Prods. Liab. Litig., 2014 WL 2767182, at *8
(E.D. Pa. June 17, 2014).
Following the termination of the consolidated Fund A
Escrow Account, the court approved on June 18, 2014 the
"Stipulation between Wyeth and Class Counsel with Regard to the
Funding of Future Awards of Class-Related Fees" in PTO No. 9297.
This PTO ordered Wyeth to provide funding for payments of up to
$4 million of class counsel fees in connection with class action
work.

As of June 29, 2017, $2,930,125 has been paid by Wyeth

and $1,069,875 remains available to fund the payment of
attorneys' fees for class action related work.
The MDL 1203 Fee and Cost Account contains assessments
of a percentage of any recoveries by plaintiffs whose actions
are transferred to the MDL 1203 action and of recoveries by
plaintiffs in the coordinated state proceedings.
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As of

December 22, 2016 the MDL 1203 Fee and Cost Account had a
balance of $2,629,545.92.

This balance represents the addition

of $96,204 in new assessments deposited into the account and the
dispersal of $1,862,750 in claim payments made during 2016. 1
II.
Although there have been no objections to this
petition, we must conduct a "thorough judicial review" of the
requested fee award as "required in all class action
settlements."

In re Gen. Motors Corp. Pick-Up Truck Fuel Tank

Prods. Liab. Litig., 55 F.3d 768, 819 (3d Cir. 1995).

We have

previously noted the standard of review that our Court of
Appeals requires a district court to employ, which includes
consideration of the following ten factors:
(1) the size of the fund created and the
number of beneficiaries, (2) the presence or
absence of substantial objections by members
of the class to the settlement terms and/or
fees requested by counsel, (3) the skill and
efficiency of the attorneys involved,
(4) the complexity and duration of the
litigation, (5) the risk of nonpayment,
(6) the amount of time devoted to the case
by plaintiffs' counsel, (7) the awards in
similar cases, (8) the value of benefits
attributable to the efforts of class counsel
1.
The balance does not include a separate sum of $101,200 that
has been paid by Wyeth into an escrow account. The sum was put
in escrow in connection with an unresolved dispute as to whether
certain cases that were settled in 2016 should be subject to the
MDL 1203 assessment that was established by California General
Order No. 7, which governs the related California state court
litigation.
If the challenge were to be rejected, the amount in
escrow would be released and paid into the MDL 1203 account.
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relative to the efforts of other groups,
such as government agencies conducting
investigations, (9) the percentage fee that
would have been negotiated had the case been
subject to a private contingent fee
arrangement at the time counsel was
retained, and (10) any innovative terms of
settlement.
See, e.g., In re Diet Drugs Prods. Liab. Litig., 2013
WL 3326480, at *3 (E.D. Pa. June 28, 2013)

(citing Gunter v.

Ridgewood Energy Corp., 223 F.3d 190, 195 (3d Cir. 2000)).

We

do not apply these factors in a "formulaic way" and recognize
that one factor may outweigh others.

Id.

Our Court of Appeals

has emphasized that "what is important is that the district
court evaluate what class counsel actually did and how it
benefitted the class."

In re AT&T Corp. Sec. Litig., 455 F.3d

160, 165-66 (3d Cir. 2006).
A.

SIZE OF FUND CREATED AND NUMBER OF PERSONS BENEFITTED

We have previously noted the size of the Class Action
Settlement Fund to be approximately $6.44 billion.

In re Diet

Drugs Prods. Liab. Litig., 553 F. Supp. 2d 442, 472 (E.D. Pa.
2008).

During 2016, Class Members received benefits totaling

$8,353,167 pursuant to the terms of the Settlement Agreement.
This total includes the following awards:
•

seventeen Class Members received Matrix payments
totaling $5,854,869; and

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•

the Settlement Fund has paid a total of
$2,498,298 to administer the terms of the
Settlement Agreement to provide settlement
benefits to Class Members.

We have previously recognized the "immense size of the Fund
created and the thousands of people" who have benefitted since
this court first approved the Settlement Agreement on August 28,
2000.

Diet Drugs, 2010 WL 3292787, at *9.

This factor weighs

in favor of granting Levin a fee award for its class action
work.
B.

PRESENCE OR ABSENCE OF SUBSTANTIAL OBJECTIONS

We must next consider the "presence or absence of
substantial objections by members of the class to the settlement
terms and/or fees requested by counsel."
195 n.1.

Less than thirty objections were filed in response to

the 2007 petition for fees and costs.
2d at 473.
court.

Gunter, 223 F.3d at

Id.

Diet Drugs, 553 F. Supp.

All of these objections were overruled by this
Several of our orders were appealed to the Court of

Appeals for the Third Circuit and affirmed, while other appeals
were discontinued with prejudice.

In re Diet Drugs Prods. Liab.

Litig., 93 F. App'x 338 (3d Cir. 2004); In re Diet Drugs Prods.
Liab. Litig., 385 F.3d 386 (3d Cir. 2004); In re Diet Drugs
Prods. Liab. Litig., 226 F.R.D. 498

(E.D. Pa. 2005).

No

objections were filed in connection with the fee petitions
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covering the years 2007-2015.

See In re Diet Drugs Prods. Liab.

Litig., 2016 WL 8732314, at *2-3 (E.D. Pa. May 6, 2016).
Similarly no objections have been filed in response to
the current 2016 petition.
stated,

However as we have previously

"the paucity of objections filed in response to the

original and renewed petitions for attorneys' fees and costs do
not necessarily establish that the requests in the Joint
Petition are proper."

Diet Drugs, 553 F. Supp. 2d at 474.

Nonetheless, the absence of any objection is indicative of the
fairness of the petition.

Id.

Thus this factor weighs in favor

of granting the current fee petition but does not relieve the
court of its independent obligation to ensure the fairness of
the award.
C.

SKILL AND EFFICIENCY OF ATTORNEYS INVOLVED

We previously found that those seeking attorneys' fees
and expenses related to common benefit work, including Levin,
"handled with superior skill and efficiency the resolution of
claims in this exceedingly complex class action."
2010 WL 3292787, at *10
474).

Diet Drugs,

(citing Diet Drugs, 553 F. Supp. 2d at

We have also found that Levin has handled those cases

transferred to MDL 1203 for pretrial proceedings in a skillful
and diligent manner.

Diet Drugs, 2016 WL 8732314 at *3.

Thus

the proficiency and diligence of the attorneys involved weighs

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in favor of awarding Levin an appropriate fee for their
MDL-related work.
D.

COMPLEXITY AND DURATION OF LITIGATION

This litigation, which has been pending for nearly two
decades, involves the administration of the Class Action and the
related MDL.

According to statistics maintained by the Judicial

Panel on Multidistrict Litigation, 20,209 civil actions
involving Diet Drugs have been transferred to or filed in this
court for coordinated or consolidated pretrial proceedings as
part of MDL 1203.

The court has issued nearly 9,500 pretrial

orders in connection with MDL 1203.

As we have recognized, the

"sheer breadth of the Settlement Agreement and its many moving
parts created a virtual labyrinth through with the Joint Fee
Applicants were forced to navigate."

Diet Drugs, 553 F. Supp.

2d at 477-78.

Laurence Berman, Esquire, who now serves as Chair of
the PMC and as Class Counsel in connection with the Settlement
Agreement, has submitted an affidavit in support of the fee
petition describing the work performed by Levin in 2016.

We

will briefly describe some of the work that Mr. Berman reports
in his affidavit.
During 2016 Levin reviewed the audit of twenty nine
Matrix Claims and referred a number of them to the Consensus

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Expert Panel ("CEP") for evaluation and potential re-audit. 2

As

a result of the CEP re-audits, Class Members received
approximately $1.2 million in additional Matrix benefit payments
during 2016.

In addition Levin assisted 150 Matrix Claimants in

preparing and submitting claims to the Trust through the Class
Counsel Claims Office.

That assistance helped to deliver $2.7

million in Matrix Benefits to those Claimants.
Levin also continued to take part in Trust planning
activities.

The firm participated in discussions on issues such

as the Trust's 2016 budget, the plan for Trust operations during
2016, the relocation of the Trust's offices, and the
commencement of the destruction of certain unneeded Trust
materials that were held being held in storage. 3

Levin assisted

with the resolution of the Show Cause claim set forth in
PTO No. 9468, the subject of which was "irreversible pulmonary
hypertension" as defined by the Settlement Agreement.

The

resolution of this Show Cause claim led to PTO No. 9469, which

2. This court approved the creation of the CEP in PTO No. 6100.
The CEP reviews claims to determine if the auditor departed from
accepted standards of practice in applying the Settlement
Agreement.
The CEP can then order the termination or retraining
of the auditor and/or recommend re-audit of the claim.
3. In PTO No. 9484, the court granted the joint motion of the
AHP Settlement Trust, Wyeth, and Class Counsel for an order
authorizing the destruction of stored trust materials.
See PTO No. 9484 (Feb. 14, 2017).
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vacated PTO No. 9468 on the ground that the claim was resolved.
See PTO No. 9469 (July 11, 2016).
During 2016 Levin took part in a project that
endeavored to identify unrepresented Class Members who remained
eligible to submit claims to the Trust after approval of the
Seventh Amendment in order to determine whether they were
eligible for disease progression benefits.

Levin also assisted

them in submitting supplemental Matrix Benefit claims to the
Trust.

Through this project Levin identified nine new matrix

claims on which it worked in order to submit claims for Matrix
Benefits to the Trust.
In 2016 Levin continued to participate in activities
such as participating in Primary Pulmonary Hypertension
litigation, engaging in the administration of the Cardiovascular
Medical Research and Education Fund ("CMREF"), and
administration of the Class Action and MDL 1203. 4

We recognize,

as we have in past PTOs, that the activity in the litigation is
consistently declining and thus the number of individuals who
have benefitted from the Settlement Agreement in 2016 has
decreased significantly when compared with earlier years.

We

The CMREF was created by the Settlement Agreement.
See
Settlement Agreement § VI.A.3.a. Now retired former Levin
partner Michael D. Fishbein, Esquire, who also previously served
as Class Counsel, served on the board of directors of CMREF in
2016.
4.

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must consider this decline in activity when calculating the
appropriate fee award.
E.

RISK OF NON-PAYMENT

We have stated in past memoranda that the risk of nonpayment to Class Counsel must be judged at the inception of the
action, rather than in hindsight.
at 478.

See Diet Drugs, 553 F. Supp.

We have noted that the Joint Fee Applicants

~faced

significant risk" at the commencement of the litigation and that
this risk did not subside with the approval of the Settlement
Agreement.

Id. at 748-49 (internal citations omitted).

However, we must "reassess the risk" faced by the 2016 Joint
Class Fee Applicants throughout the litigation, including during
2016.

In re Diet Drugs Prods. Liab. Litig., 582 F.3d 524, 543

(3d Cir. 2009).

Levin has already received a generous fee for

the work performed through 2015.

The court has created a

reserve fund to compensate Class Counsel for work performed
after 2008.

Levin concedes that the risk of non-payment for

work performed in connection with the administration of the
Class Settlement in the period after December 31, 2009 is
minimal.
F.

AMOUNT OF TIME DEVOTED TO CASE BY PLAINTIFFS' COUNSEL

According to the supplement to the Twelfth Audit
Report, during 2016 Levin spent a total of 870.5 hours on class

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action work.

5

work days.

We accept the Auditor's finding.

G.

This is the equivalent of more than 108 eight-hour

AWARDS IN SIMILAR CASES

The instant fee petition seeks an award of .0094% of
the value of the Settlement Fund.

When this percentage is added

to the awards previously made by this court in PTO Nos. 7763A,
8516,

8646, 8869, 9102, 9294, 9398, and 9465, counsel will have

received a total award equaling 7.154% of the Settlement Fund.
The present award requested represents approximately 7.2% of the
$8,353,167 in Settlement Benefits paid to class members in 2016.
We previously determined that the awards sought in
similar cases range from 4.8% to 15%.
2d at 480.

Diet Drugs, 553 F. Supp.

We noted that these figures should serve as

"guideposts" when determining the appropriate award.

Id.

The

award sought by Levin falls within these guideposts, and thus
this factor weighs in favor of the requested award.
H. VALUE OF BENEFITS ATTRIBUTABLE TO EFFORTS OF CLASS
COUNSEL RELATIVE TO OTHER GROUPS

Under this Prudential/Gunter factor, we must consider
the benefits created by other groups, such as government
agencies, when deciding on a reasonable fee.

We have stated

5. The Twelfth Audit report indicates that Levin spent a total
of 955.5 hours on compensable class common benefit activities.
However, the supplement issued by the Auditor on June 8, 2017
clarified that 870.5 of these hours were allocated to class
action work.
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that "Joint Fee Applicants should .

. not receive fees based

upon efforts that are not their own."
2d at 480.

Diet Drugs, 553 F. Supp.

A failure to distinguish the work of other groups

"would create an incentive for plaintiffs [sic] attorneys to
'minimize the costs of failure
monitoring of others.'"

. by free riding on the

In re Prudential Ins. Co. Am. Sales

Practice Litig., 148 F.3d 283, 337 (3d Cir. 1998)

(quoting John

C. Coffee, Jr., Understanding the Plaintiff's Attorney,
86 Colum. L. Rev. 669, 681 (1986)).

We reaffirm our past

conclusion that "[n]either the Government, nor its agencies,
provided the type of heavy-lifting that is sometimes provided in
antitrust or securities cases."
*12.

Diet Drugs, 2010 WL 3292787 at

No group has provided aid to Levin for work performed

during 2016.

Thus this factor weighs in favor of awarding Levin

an appropriate award for its work related to the Trust.
I. VALUE OF BENEFITS ATTRIBUTABLE TO EFFORTS OF CLASS
COUNSEL RELATIVE TO OTHER GROUPS

We have previously looked to the Major Filers
Agreement 6 when analyzing the fee award.

6.

Id.

(citing Diet

The Major Filers:
(1) represent[ed] about 97% of the Class
Members who exercised Downstream Opt-Outs
and filed lawsuits subject to the MDL 1203
fee assessments; (2) filed 26,000 Level I
and Level II Matrix Benefit claims that
became Category One Claims under the Seventh
Amendment; (3) represented about half of the
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Drugs, 553 F. Supp. 2d at 482).

The Major Filers "were, in

essence, the market for the Joint Fee Applicants' services."
Id.

The Major Filers have stipulated that the fees awarded to

Class Counsel should include the interest earned in the Fund A
Escrow Account.

Id.

The instant petition seeks an award of an

additional portion of the interest earned by this account and
thus is consistent with the Major Filers Agreement.

The Major

Filers Agreement continues to serve as the best predicator of
what would have been negotiated through a private contingent fee
agreement.

Thus this factor weighs in favor of awarding Levin

an appropriate fee.
J.

INNOVATIVE TERMS OF SETTLEMENT

As we have previously stated,
Settlement Agreement provisions .

"we cannot deny that the

. were indeed innovative at

the time they were drafted and have already served as models for
other cases."

Diet Drugs, 2010 WL 3292787 at *13 (citing Diet

Drugs, 553 F. Supp. 2d at 485).

There have been no additional

innovative terms to the Settlement Agreement in 2016.

Although

we continue to recognize the past innovation of the Applicants,
this factor does not weigh in favor of or against the requested
award.

Class Members who have had Matrix Benefits
claims processed by the Trust.
Diet Drugs, 553 F. Supp. 2d at 482.
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III.

THE LODESTAR CROSS-CHECK

We must next perform a lodestar cross-check of the
requested fee award using the percentage-of-recovery method to
ensure that Levin will not receive a windfall.

The "lodestar

cross-check is performed by multiplying the hours reasonably
expended on the matter by the reasonable hourly billing rate
which then provides the court with the 'lodestar calculation.'"
Diet Drugs, 553 F. Supp. 2d at 485.

The proposed fee award is

then divided by the lodestar calculation.
is the lodestar multiplier.

The resulting figure

We must then compare this number to

the lodestar multiplier in similar cases.

Id.

According to the supplement to Mr. Winikur's Twelfth
Audit Report, the lodestar value of the professional time
expended by Levin in 2016 on class action work, using the
applicable 2016 billing rates, is $539,575.
of $601,400.

Levin seeks a fee

This requested fee, divided by the lodestar value

yields a lodestar multiple of 1.115. 7

In recent years we have

declined to apply a multiplier greater than 1.

See Diet Drugs,

2011 WL 2174611 at *9.

7. We have previously recognized that the manner in which the
Joint Fee Applicants were required to maintain and report time
does not allow the attorneys to distinguish between time spent
pursuing class activities and time spent working on Opt-Out PPH
cases.
Diet Drugs, 553 F. Supp. 2d at 487.
Thus the multiplier
here is "artificially low" and could be as high as 1.9.
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We note that Levin's request fee, $601,400, is the
lodestar value of the professional time expended by Levin of the
total amount of work performed on both the class action and the
MDL-related work combined.

Thus we find that the requested

award of $601,400 from the Trust and $601,400 from the MDL 1203
Fee and Cost Account is excessive.

Levin expended a total of

870.5 hours on class action related work.

Using the applicable

2016 billing rates, the supplement to the Twelfth Audit Report
states that the lodestar value of this time is $539,575.
Based on a consideration of the Gunter/Prudential
factors and that the lodestar cross-check, we find that a fee of
$539,575 is the appropriate award.
IV.

AWARD OF FEES FROM MDL 1203 FEE AND COST ACCOUNT

Levin also seeks an award of $601,400 from the MDL
1203 Fee and Cost Account.

According to the supplement to the

Twelfth Audit Report, Levin spent a total of 85 hours dedicated
to MDL-related work in 2016.

As part of this work, the PMC

continued to assist in managing the pretrial proceedings in MDL
1203.

As previously noted, according to the Judicial Panel for

Multi-District Litigation, a total of 20,209 civil actions
involving Diet Drugs have been transferred to or filed in this
court for coordinated or consolidated pretrial proceedings as
part of MDL 1203.

In 2016 five existing PPH claims against

Wyeth were resolved, resulting in settlement payments of
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$1,862,750 and a deposit into the MDL 1203 Fee and Cost Account
of $96,204.
Our Court of Appeals has declared that the standard
for awarding to court-appointed management committees a portion
of the claim recoveries earned is as follows:
Under the common benefit doctrine, an award
of attorney's fees is appropriate where the
plaintiff's successful litigation confers a
substantial benefit on the members of an
ascertainable class, and where the court's
jurisdiction over the subject matter of the
suit makes possible an award that will
operate to spread the costs proportionately
among them.
Thus, in order to obtain common
benefit fees, an attorney must confer a
substantial benefit to members of an
ascertainable class, and the court must
ensure that the costs are proportionately
spread among that class.
Diet Drugs, 582 F.3d at 546 (internal citations omitted).
We have recognized that the administrative functions
performed by the PLC have conferred a substantial benefit on the
plaintiffs in MDL 1203.
*14.

See Diet Drugs, 2010 WL 3292787, at

The PLC has "helped to administer the MDL by tracking

individual cases, distributing court orders, and serving as a
repository of information concerning the litigation and
settlement" to the benefit of these individuals.
Diet Drugs, 582 F.3d at 548).

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Id.

(citing

The requested fee award is more than the amount of new
assessments paid into the MDL 1203 Fee and Cost Account in 2016. 8
As we have stated the lodestar multiplier is calculated by first
multiplying the number of hours reasonably expended on the
matter by the reasonable hourly billing rate to obtain the
'lodestar calculation.'

Diet Drugs, 553 F. Supp. 2d at 485.

This number is then divided into the proposed fee award to
determine the resulting lodestar multiplier.

Id.

The lodestar calculation is $61,825, which reflects
the 85 hours spent by Levin on the MDL 1203.
multiplier is 9.727.

The lodestar

We find it is unreasonable to grant a fee

request with such a lodestar multiplier.

Instead, it is

appropriate to award Levin $61,825 from the MDL 1203 Fee and
Cost Account.

This award yields a multiplier of 1 and reflects

the number of hours performed by Levin in 2016 on MDL-related
work.
V.

AWARD AND ALLOCATION OF EXPENSE REIMBURSEMENTS

In 2016 a total of $18,519.58 in properly documented
expenses were incurred for the common benefit of the class and
the plaintiffs in MDL 1203.

We have already entered orders

8. As we have noted the deposited amount does not reflect the
sum of $101,200 that Wyeth paid into a separate escrow account
pending the resolution of a challenge to California General
Order No. 7.
If the challenge were to be rejected, the $101,200
held in escrow would be released into the MDL 1203 account.
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authorizing reimbursement of $14,548.61 of these expenses from
the MDL 1203 Fee and Cost Account.

The remaining balance of

$3,970.97 represents expenses that were advanced by Levin.
In PTO No. 7763 we approved a stipulation between
Wyeth and Class Counsel that at least 50% of the expenses from
the funds on deposit in the MDL 1203 Fee and Cost Account and/or
advanced by Levin should be paid by the Settlement Fund as they
were expended for the common benefit of the class.
We will enter an order directing that the Settlement
Fund reimburse the MDL 1203 Fee and Cost Account in the amount
of $7,274.31, which represents 50% of the expenses paid from the
MDL 1203 Fee and Cost Account during 2016.

We will also order

that 50% of the out-of-pocket costs advanced by the Levin be
reimbursed to it from the MDL 1203 Fee and Cost Account and the
remaining 50% be reimbursed from the Settlement Fund.
VI.

CONCLUSION

In conclusion, we will award attorneys' fees and
expenses for work performed in 2016 as set forth in the attached
pretrial order.

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