Sept 9 (Askume) – Plaintiffs’ lawyers in a Nationwide case weren’t kidding when it came to setting aside $2.1 billion to settle with nine major opioid defendants.
On Friday, the plaintiffs’ executive committee, which includes Motley Rice, Simmons Hanley Conroy and Lieff Cabraser Heiman & Bernstein, dismissed an appeal to the U.S. Court of Appeals for the Sixth Circuit by two companies that were allegedly excluded from the common interest, arguing that the companies waived their right to Federal Circuit review by agreeing to participate in the complex fee allocation process in the multidistrict opioid litigation.
The firms filing the appeal — Goldstein, Russell & Woofter and Kelly & Ferraro — represent six Ohio cities that several years ago opposed a proposal to certify the first such “negotiating group” of about 50 other cities and counties, which provides a framework for negotiating settlements against drug companies, distributors and pharmacies accused of fueling the nationwide opioid abuse epidemic.
Goldstein’s partner Kevin Russell, who made oral arguments for opposing Ohio cities in the Sixth Circuit, wrote in a 2020 decision
Goldstein and Kelly have argued that their work on behalf of opponents entitles them to fees from a $2.1 billion fund set aside in a settlement with nine defendants, including Janssen, McKesson (MCK.N) , Teva (TEVA.TA) and CVS (CVS.N ) and Walmart (WMT.N) . (The common benefits fund is designed to compensate lead plaintiffs’ lawyers for work done on behalf of everyone in the case, which is common in multidistrict litigation.)
Unfortunately, most of the records related to Goldstein and Kelly’s requests are not public, so we don’t know the full extent of their arguments about sharing Commonwealth funds. According to their September 4 filing in the Sixth Circuit , what we do know is that they have cited their opponents’ work and are seeking 0.08% of the $2.1 billion fund, or about $1.7 million.
The opioid settlement agreement with Janssen, McKesson and seven other defendants provides for contributions to a common benefits fund and includes special agreements to allocate common benefits costs . The agreement calls for U.S. District Judge Dan Polster in Cleveland to appoint three members of a “fee panel” who will receive and review multiple submissions from plaintiff companies that believe they deserve a share of the money.
Companies participating in the process have only “limited appeal rights”: If they are dissatisfied with the panel’s decision, the agreement allows them to seek a review from the pollster, which can do so only if it determines that the panel abused its discretion. Expert panels can only be overturned under certain circumstances.
Polster’s April 2022 order enforcing the fee award agreement in the settlement was even more explicit: The judge said he would make a “final decision” on how money from the general benefits fund would be distributed. “This is an appealable decision.”
The panel appointed by Polster — retired federal judge David Herndon, specialized opioid expert David Cohen and arbitrator Randy Ellis — ruled that Goldstein Russell had no right to receive any award from the Common Welfare Fund. Goldstein Russell was not alone: The group also outright rejected requests for fees from 20 other companies.
Only seven of the 97 companies that submitted fee applications asked the pollster to review their awards . Not all companies that seek a review are denied fees. As my Askume colleague Brendan Pearson reported in June , Motley Rice appealed the $396 million judgment, even though it received a larger share of Commonwealth funds than any other company in the suit.
Like all companies asking the judge to review their decisions, Goldstein’s presentation to Polster was filed directly with the special master and is not a public record. What we do know is that when Polster issued the final fee order in July , he did not even discuss Goldstein or Kelly. The judge granted awards to Spangenberg, Shibley and Lieber but did not modify the fee committee’s decision.
Goldstein and Kelly told the Sixth Circuit in a Sept. 4 notice that they intend to appeal not only the verdict but also the fee-setting process set up by Polster.
Two days later, the plaintiffs’ executive committee moved swiftly to dismiss the appeal.
The commission’s motion states that the settlement agreement signed by Goldstein’s client expressly provided that the plaintiffs’ attorneys had only “limited” rights to appeal Polster’s fee award. Additionally, Goldstein and Kelley must acknowledge those limitations when submitting their request to the fee panel, the motion states.
If there was any ambiguity about the extent of the power to review fee awards, it should have been clarified in Polster’s April 2023 order, which stated that he would have the final say on the allocation of fees from the Common Benefit Fund. said. .
“Appellant knowingly and voluntarily consents to the district court’s order being ‘not appealable,’ and therefore waives his right to appeal to this court,” the motion states.
I emailed Kevin Russell and Daniel Woofter of Goldstein Russell and James Ferraro of Kelly & Ferraro, but received no response.
Peter Weinberger of Spangenberg Shibley, who signed the plaintiffs’ executive committee’s dismissal motion, declined to comment.
As of Monday afternoon, the Sixth Circuit had not requested a response to the motion.
Read more:
US law firm Motley Rice appeals $396 million opioid fee verdict
Top law firms to receive billions in fees in U.S. opioid litigation
The views expressed are solely the author’s own. They do not reflect the views of Askume News, which is committed to integrity, independence and non-partisanship in accordance with the principles of trust.
