DOCUMENT 3324 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
CASE NO. CV-2003-006630-PJB
SAM JOHNSON and CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM, for themselves, individually, and on behalf of a class of all others who are similarly situated,
Plaintiffs, v.
CAREMARK Rx, L.L.C.; AMERICAN INTERNATIONAL GROUP, INC.; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.; AIG TECHNICAL SERVICES, INC.; And AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY,
Defendants.
EVIDENTIARY SUBMISSIONS IN SUPPORT OF
THE PLAINTIFF CLASS S MOTION FOR FINAL APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT
AND
CLASS COUNSEL S FEE AND EXPENSE APPLICATION AND APPLICATION FOR SERVICE AWARDS TO PLAINTIFFS
Come now the Plaintiffs, the Plaintiff Class, and Class Counsel and jointly submit the following evidentiary materials in support of both The Plaintiff Class's Motion for Final
Approval of Proposed Class Action Settlement and Class Counsel's Fee and Expense Application and Application for Service Awards to Plaintiffs:
EXHIBIT 1: Declaration of Professor William B. Rubenstein
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DOCUMENT 3324
EXHIBIT 2: Declaration of Professor Arthur R. Miller
EXHIBIT 3: Declaration of Judge U. W. Clemon
EXHIBIT 4: Affidavit of Class Counsel in Support of the Class’s Motion for Final
Approval of Proposed Class Action Settlement and in Support of Class Counsel’s Fee and Expense Application
EXHIBIT 5: Affidavit of Class Representative Sam Johnson
EXHIBIT 6: Affidavit of James Love on behalf of Class Representative Birmingham
Retirement and Relief Fund
EXHIBIT 7: Affidavit of former Named Plaintiff and Class Representative John
Lauriello
EXHIBIT 8: Declaration of Ross Murray for Claims Administrator Gilardi & Co.
EXHIBIT 9: Transcript of May 31, 2016, Preliminary Approval Hearing
EXHIBIT 10: Lead Counsel Agreement of February 25, 2009
EXHIBIT 11: Objection from Steven M. Sobel
EXHIBIT 12: Objection from Georgia Urology
EXHIBIT 13: Objection from Clete Walker
EXHIBIT 14: Composite Exhibit of Items Relating to Clete Walker
Respectfully submitted this the 29th day of July, 2016.
s/ Scott A. Powell One of the Attorneys for Plaintiffs
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OF COUNSEL:
John W. Haley Scott A. Powell Bruce J. McKee Brian M. Vines Ralph D. Cook Tempe D. Smith Hare, Wynn, Newell & Newton, LLP 2025 3rd Avenue N., Suite 800 Birmingham, Alabama 35203 (205) 328-5330 fax: (205) 324-2165 [email protected]
J. Timothy Francis Francis Law, LLC 300 N. Richard Arrington Jr. Blvd. 700 Title Building Birmingham, Alabama 35203 (205) 251-0252 [email protected]
John Q. Somerville Somerville, LLC 300 N. Richard Arrington Jr. Blvd. Suite 710 Title Building Birmingham, Alabama 35203 (205) 871-2183 [email protected]
Counsel for the Plaintiffs and Plaintiff Class
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CERTIFICATE OF SERVICE
I hereby certify that I have on this 29th day of July, 2016, served a copy of the foregoing on counsel of record by notice of electronic mail on those who are registered participants in the electronic-filing system and upon counsel of record who are not participants in the electronic-filing system by placing a copy of same in the United States Mail, first class postage prepaid, and addressed, as follows:
M. Christian King Harlan I. Prater, IV. Terrence W. McCarthy Mary M. Drake Lee M. Hollis LIGHTFOOT, FRANKLIN & WHITE, LLC 400 North 20th Street Birmingham, Alabama 3 5203 (205) 581-0700 [email protected]
Edward P. Krugman Joel Kurtzberg Tammy L. Roy CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 [email protected]
Attorneys for AIG and
David G. Hymer Joel M. Kuehnert John Mark Goodman Kenneth M. Perry BRADLEY ARANT BOULT CUMMINGS LLP One Federal Place 1819 Fifth Avenue North Birmingham, Alabama 35203 (205) 521-8000 [email protected]
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M. Robert Thornton Philip E. Holladay, Jr. Jonathan R. Chally Robert C. Kahayat, Jr. KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309 (404) 572-4778 [email protected]
Enu A. Mainigi F. Lane Heard, III Craig Singer William T. Burke WILLIAMS & CONNOLLY 725 121h Street Northwest Washington, DC 20005 (202) 434-5000 [email protected]
Attorneys for Caremark Rx, LLC and
Lanny S. Vines LANNY VINES & ASSOCIATES, LLC 2142 Highland A venue South Birmingham, Alabama 35205 (205) 933-1277 [email protected]
Attorney for Former Intervenor and
Randall D. Quarles Frances P. Quarles QUARLES LAW FIRM, LLC 300 Office Park Drive, Suite 100 Birmingham, AL 35223 Telephone: (205) 874-7000 Telecopier: (205) 874-7002 [email protected]
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DOCUMENT 3324
Attorneys for Putative Objector Clete Walker
s/ Scott A. Powell One of the Attorneys for Plaintiffs
6
DOCUMENT 3311 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 1 DOCUMENT 3311
IN THE CIRCUIT COURT FOR JEFFERSON COUNTY, ALABAMA
CASE NO. CV-2003-00630
SAM JOHNSON and CITY OF ) BIRMINGHAM RETIREMENT ) AND RELIEF SYSTEM, for themselves, ) Individually, and on behalf of a class of ) all others who are similarly situated, ) ) Plaintiffs, ) ) v. ) ) CAREMARK Rx, L.L.C., ) AMERICAN INTERNATIONAL ) GROUP, INC.; et al. ) ) Defendants. )
DECLARATION OF PROFESSOR WILLIAM B. RUBENSTEIN
I, William B. Rubenstein, hereby declare as follows:
1. The law firm of Hare, Wynn, Newell & Newton, LLP (hereafter “Class Counsel”)1 has retained me to provide my expert opinion as to its request for a fee of 40% of the common fund that its work has created for the class in this matter. After setting forth my qualifications to serve as an expert (Part I, infra), and briefly describing the underlying litigation (Part II, infra), I state my opinion that the requested fee is reasonable and should be approved (Part III, infra). The
Alabama Supreme Court directs its lower courts to utilize a percentage fee method in common fund cases and has noted that, while in “some cases, 20% may be reasonable, based upon the
1 This Court appointed three firms – Hare, Wynn, Newell & Newton; North & Associates; and Somerville, LLC – as Class Counsel herein. See CVS Caremark Corp. v. Lauriello, 175 So. 3d 596, 603 (Ala. 2014). By order dated May 7, 2015, the successor law firm of Francis Law, LLC, was substituted as co-class counsel in place of North & Associates. My use of the term throughout this Declaration encompasses all appointed counsel. 1 DOCUMENT 3311
amount of the award and other factors,” in “other cases 40%, or even 50%, may be justified.”2
The Alabama Supreme Court has also enumerated a series of factors to guide lower courts in reviewing requested percentage awards.3 Employing these guidelines, it is my expert opinion that:
Quantitatively, the 40% fee is consistent with awards courts approve in circumstances similar to those that exist in this case. Five independent facts support this conclusion. First, as just noted, the Alabama Supreme Court has held that fees of 40-50% are justified in certain circumstances. Second, as described below, I maintain a database of over 1,000 class action fee awards. In 55 of the cases in my database (or about 5% of all the cases), courts have awarded counsel a fee of 40% or more of the common fund. Typically, fees of this magnitude are awarded in cases that proceed to trial, with the median award of fees and costs combined in such cases being 45%. Third, there are numerous reported federal and state cases awarding 40% or more to class counsel, many in circumstances far less compelling than those that exist in this case. Fourth, the 40% fee here comports with the market rate: empirical evidence demonstrates that contingent fee trial lawyers normally receive a fee of approximately 40% of the client’s recovery in cases that proceed to trial and involve at least one appeal. Fifth, in the underlying MedPartners matter, class counsel received a 33.33% fee for that more modest piece of litigation, providing evidence in the form of fees historically awarded by this Court in significant class suits. These five points demonstrate that courts award class counsel fees constituting 40% of the common fund in appropriate circumstances.
Qualitatively, the 40% fee is warranted by a series of more than a dozen factors that characterize the extraordinary risks Class Counsel took in pursuing this case and the remarkable results that they achieved for the class. Counsel took an extraordinary risk in undertaking this case: (1) the case did not follow on the heels of a government investigation or a well-publicized admission of wrong-doing but was litigated from scratch and without assistance by any entity beyond Class Counsel; (2) the case was not a cookie cutter case, re-filing pleadings from a past effort, but a completely novel one-off case: a “class action about a class action” with absolutely no precedent in the case law; (3) nothing Class Counsel learned in this case will be utilizable in future cases – it does not open a new line of business enabling counsel to spread its risks over future matters; (4) Class Counsel faced the real risk that the evidentiary trail would be stale given the historical facts underlying the case; (5) Class Counsel confronted the extremely high burden of securing class certification in a common law fraud case; (6) Class Counsel, a small local boutique firm and associated individual lawyers, litigated
2 Edelman & Combs v. Law, 663 So. 2d 957, 960 (Ala. 1995). 3 Peebles v. Miley, 439 So.2d 137, 140-41 (Ala. 1983) (listing 12 factors). 2 DOCUMENT 3311
against some of the largest corporations in the world and (7) against some of the nation’s premier law firms – all with the resources to outlast their efforts; (8) yet they did so without support from other firms, shouldering all of the risk themselves; and (9) given all of these risks, settlement in the case was unlikely and achieved only after they invested millions of dollars and 13 years of their practice into the class’s claims in the case. Class Counsel secured extraordinary relief for the class: (10) the relief followed significant, contested, adversarial litigation against strong opposition, right up to the eve of trial – an outcome closer to a judgment than a settlement; (11) class members get significant monetary relief, roughly 5.5 times what they received in the initial MedPartners settlement; (12) 100% of the class is eligible for relief; (13) the claiming process is straightforward, web-based, and not unduly complex; (14) no monies will revert to the defendants, hence ensuring the full deterrent effect of the $310 million recovery; and (15) the relief compares favorably to results achieved in similar cases. 2. While the presence of these many positive factors is extremely impressive, and supports the 40% fee Class Counsel seek, this checklist approach runs the risk of masking how truly exceptional this case is. I have been an expert witness or consultant in about 50 fee-related matters in the past decade and I can recall only once before supporting a fee request of 40% or more. I do so here because this is likely the single most extraordinary class action that I have ever witnessed. Many class action cases today follow the headlines in the newspaper, with liability something of a given from the outset. It is exceedingly rare that a class action firm itself detects a legal concern that affects many individuals but which remains hidden, and then tackles it notwithstanding its intricacy, long odds, and sui generis nature. It is far less risky – but likely no less profitable – for a class action firm to be the umpteenth law firm with a few clients in a mega-case involving an oil spill or defective automobile. Yet such piling on produces less additional value for the clients. Class Counsel should be rewarded for investing enormous sums of money in this class’s exceptionally risky suit as their work here exemplifies the legal system’s core aspiration for class action attorneys: that they serve as private attorneys general.
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I. BACKGROUND AND QUALIFICATIONS4
3. I am the Sidley Austin Professor of Law at Harvard Law School. I graduated from
Yale College, magna cum laude, in 1982 and from Harvard Law School, magna cum laude, in
1986. I clerked for the Honorable Stanley Sporkin in the U.S. District Court for the District of
Columbia following my graduation from law school. Before joining the Harvard faculty as a tenured professor in 2007, I was a law professor at UCLA School of Law for a decade, and an adjunct faculty member at Harvard, Stanford, and Yale Law Schools while a litigator in private practice during the preceding decade. I am admitted to practice law in the Commonwealth of
Massachusetts, the State of California, the Commonwealth of Pennsylvania (inactive), the District of Columbia (inactive), the U.S. Supreme Court, six U.S. Courts of Appeals, and four U.S. District
Courts.
4. My principal area of scholarship is complex civil litigation, with a special emphasis on class action law. I am the author, co-author, or editor of five books and more than a dozen scholarly articles, as well as many shorter publications (a fuller bibliography appears in my c.v., which is attached as Exhibit A). Much of this work concerns various aspects of class action law.
Since 2008, I have been the sole author of the leading national treatise on class action law,
Newberg on Class Actions. For five years (2007-2011), I published a regular column entitled
“Expert’s Corner” in the publication Class Action Attorney Fee Digest. My work has been excerpted in casebooks on complex litigation, as noted on my c.v.
5. My expertise in complex litigation has been recognized by judges, scholars, and lawyers in private practice throughout the country for whom I regularly provide consulting advice
4 My full c.v. is attached as Exhibit A. 4 DOCUMENT 3311
and educational training programs. For the past seven years, the Judicial Panel on Multidistrict
Litigation has invited me to give an annual presentation on the current state of class action law at
the annual MDL Transferee Judges Conference; at the 2015 Conference, I gave a talk to the MDL
judges on the topic of attorney’s fees. The Ninth Circuit invited me to moderate a panel on class
action law at the 2015 Ninth Circuit/Federal Judicial Center Mid-Winter Workshop. The federal
district court in Massachusetts similarly invited me to make a presentation to the district and First
Circuit judges on class action law in the spring of 2016. The American Law Institute selected me
to serve as an Adviser on a Restatement-like project developing the Principles of the Law of
Aggregate Litigation. In 2007, I was the co-chair of the Class Action Subcommittee of the Mass
Torts Committee of the ABA’s Litigation Section. I am on the Advisory Board of the publication
Class Action Law Monitor. I have often presented continuing legal education programs on class
action law at law firms and conferences.
6. My teaching focuses on procedure and complex litigation. I regularly teach the
basic civil procedure course to first-year law students, and I have taught a variety of advanced
courses on complex litigation, remedies, and federal litigation. I have received honors for my
teaching activities, including: the Albert M. Sacks-Paul A. Freund Award for Teaching
Excellence, as the best teacher at Harvard Law School during the 2011-2012 school year; the
Rutter Award for Excellence in Teaching, as the best teacher at UCLA School of Law during the
2001-2002 school year; and the John Bingham Hurlbut Award for Excellence in Teaching, as the best teacher at Stanford Law School during the 1996-1997 school year.
7. My academic work on class action law follows a significant career as a litigator.
For nearly eight years, I worked as a staff attorney and project director at the national office of the
5 DOCUMENT 3311
American Civil Liberties Union in New York City. In those capacities, I litigated dozens of cases on behalf of plaintiffs pursuing civil rights matters in state and federal courts throughout the
United States. I also oversaw and coordinated hundreds of additional cases being litigated by
ACLU affiliates and cooperating attorneys in courts around the country. I therefore have personally initiated and pursued complex litigation, including class actions.
8. I have been retained as an expert witness in roughly 50 cases and as an expert consultant in about another 20 cases. These cases have been in state and federal courts throughout the United States, most have been complex class action cases, and many have been
MDL proceedings. I have been retained to testify as an expert witness on issues ranging from the propriety of class certification to the reasonableness of settlements and fees. I have been retained by counsel for plaintiffs, for defendants, for objectors, and by the judiciary: in 2015, the United
States Court of Appeals for the Second Circuit appointed me to brief and argue for affirmance of a district court order that significantly reduced class counsel’s fee request in a large complex securities class action.
9. One of the functions I can provide as an expert witness is to provide empirical evidence of class action practices from other cases. Specifically, as part of my scholarly work on class action law, I have created and maintain a database containing data on more than 1,000 class action lawsuits. My research assistants coded the data from case reports appearing in the journal
Class Action Attorney Fee Digest (“CAAFD”). CAAFD was published monthly from January
2007 to September 2011 for a total of 57 issues, and reported on 1,187 unique court-approved state and federal class actions. For each case, a CAAFD case abstract describes the awarding court and judge, the subject matter of the dispute, the settlement/judgment benefits, the attorney fee and
6 DOCUMENT 3311
expense awards (both as requested by plaintiff’s counsel and as approved by the court), the case
filing and attorney fee award dates, any named plaintiff awards, and miscellaneous data on case
and settlement/judgment administration. In creating the database from the CAAFD reports, my research team cross-checked the accuracy of a subset of federal reports against source documents from PACER; we found only one error – an understatement of the settlement benefit value by 2%
– in 726 data fields, or fewer than 0.15% of fields. I am therefore confident about the accuracy of the data in my database and use it regularly as a source for my scholarship and expert witness work. I have published information from this dataset in the Newberg treatise.5
10. I have been retained in this case to provide an opinion concerning the issue set forth
in the first paragraph above. I am being compensated for providing this expert opinion. I was
paid a flat fee in advance of rendering my opinion, so my compensation was in no way contingent
upon the content of my opinion.
11. In analyzing these issues, I have discussed the case with the counsel who retained
me. I have also reviewed documents from this and related litigations, a list of which is attached as
Exhibit B. I have also reviewed the applicable case law and scholarship on the topics of this
Declaration. I have also relied upon my experience as an expert witness in this litigation over the
past six years.
5 See, e.g., WILLIAM B. RUBENSTEIN, 5 NEWBERG ON CLASS ACTIONS § 15:83 (5th ed. 2015) (reporting mean percentage awards) (hereafter Newberg on Class Actions). 7 DOCUMENT 3311
II THIS LITIGATION6
12. This is a unique case in that it is a class action about a class action. Despite the seemingly complex sound of it, the facts can be simply summarized; yet to understand the context of the pending fee request, a review of all of the litigation is necessary.
13. In the late 1990s, shareholders filed more than 20 class action lawsuits in state and
federal courts throughout the country against a company called MedPartners. The suits alleged
that that MedPartners and its principals made false and misleading statements regarding its
financial condition and anticipated performance in filings with the Securities and Exchange
Commission and in statements to the public, all made in connection with a planned merger; the
suits alleged violations of federal and state securities laws. Those cases settled for $56 million in
1999, with this Court – the Circuit Court of Jefferson County, Alabama – approving a single
aggregate settlement of all of the outstanding actions. At the time of the settlement, those class
counsel proposing the settlement believed – and represented to the Court for purposes of securing
approval of the settlement – that the defendants’ insurance coverage was capped at about $50
million and that the $56 million settlement exhausted all insurance coverages. That belief
explained their willingness to settle what they thought might have been a billion dollar case for a
mere $56 million and that belief appears to have supported the Court’s conclusion, in approving
the settlement, that it was fair and reasonable for the class.
14. A few years later in an unrelated lawsuit, counsel herein learned that during the
original litigation, MedPartners had secured an unlimited insurance policy to guard against the risk
of that litigation.
6 The facts in this section are culled from the documents listed in Exhibit B. 8 DOCUMENT 3311
15. Asserting that the defendants in the initial suit either omitted to reveal the extent of
their insurance coverage in the face of an obligation to do so and/or actively misrepresented this
information, plaintiff Lauriello – a named plaintiff in one of the initial MedPartners cases7 – filed
this class action in this Court on October 23, 2003. The basic gist of the complaint was that the
present defendants defrauded the initial class by their omissions or misrepresentations.
16. Within two weeks, on November 5, 2003, a second group of plaintiffs (hereafter the
McArthur plaintiffs) filed a substantially similar case, also in Jefferson Circuit Court, seeking the
same relief but suing, as additional defendants, class counsel in the underlying MedPartners
matter. The McArthur action was stayed because of the prior-filed similar Lauriello matter.
17. On January 15, 2004, the defendants moved to dismiss the complaint. The motion
enumerated a series of defenses, including statute of limitations, release and res judicata, failure to
plead with particularity, and failure to state a claim upon which relief could be granted. The
defendants also asserted, by submission dated May 28, 2004, that Lauriello and his counsel had a
conflict of interest with the absent class members that disqualified them from adequately
representing the class. The Court held a hearing on June 11, 2004, and denied defendants’ motion
to dismiss by order dated July 23, 2004.
18. In the summer of 2004, the plaintiffs filed a First Amended Complaint and both
Caremark and the insurance companies filed answers thereto.
19. Additionally, the plaintiffs sought appointment of Lauriello as class representative
and their counsel’s appointment as class counsel, arguing that the Court need not re-certify the
class since it had already been certified in the MedPartners matter. Defendants contested that
7 Plaintiff Lauriello was a named plaintiff in one of those actions, but his case had been dismissed and was on appeal when the consolidated settlement was achieved. 9 DOCUMENT 3311
approach. By order dated January 28, 2005, this Court agreed with the plaintiffs and ruled that it
need not certify a second class here because this case simply re-opened the initial judgment, with
the initial class remaining in place.
20. In response to that ruling, the defendants appealed the certification decision.
Plaintiff filed a motion to dismiss the appeal as improper and, in response, the defendants filed a
writ of mandamus as an alternative means of review.
21. Meanwhile, shortly after the court’s certification decision, the McArthur plaintiffs
sought to intervene in this case, to remove Lauriello as the class’s representative, and to remove
Class Counsel. The Court held a hearing on the motion on March 10, 2005, and by order dated
that same day, it rejected the McArthur plaintiffs’ intervention motion as untimely and simultaneously rejected attacks on the class representatives and counsel. The McArthur plaintiffs appealed that decision and the Supreme Court of Alabama consolidated the two appeals.
22. After extensive briefing and argument throughout the succeeding year, in October
2006, the Supreme Court reversed both the certification and intervention holdings and remanded the case, directing this Court to undertake a rigorous analysis of whether the particular claims at issue here could be certified for class treatment and to re-visit the intervention issue.8 The Court
concluded that the present case was not just an effort to re-open the MedPartners judgment but a
“new action,” because, inter alia, plaintiffs herein pursued relief from entities that were not named
defendants in the MedPartners matter. The Supreme Court ordered this Court to evaluate the
motion for class certification de novo.9 Given that the trial court would have to review the class
8 See Ex parte Caremark RX, Inc., 956 So.2d 1117 (Ala. 2006). 9 Although the Alabama Supreme Court had directed that the Court undertake an analysis of whether the MedPartners class could be certified to litigate the present claims, it simultaneously 10 DOCUMENT 3311
certification motion anew, the Court also ruled that the McArthur plaintiffs’ intervention motion was not untimely and hence it ordered this court to grant McArthur’s motion.
23. Upon remand, in March 2007, the McArthur plaintiffs filed a complaint in intervention that all of the other parties opposed in various ways. The lawyer defendants in the
McArthur intervention action moved to dismiss the case against them on the grounds that it was time barred by the four-year statute of repose in the Alabama Legal Services Liability Act. The trial court so held on November 26, 2007, and the Alabama Supreme Court affirmed that holding, without opinion. Despite significant litigation among the competing plaintiff groups throughout the 2007-2009 period, the McArthur intervenors ultimately withdrew their remaining claims against Lauriello, and their efforts to dislodge Lauriello’s counsel, pursuant to a Lead Counsel
Agreement (filed with this Court) between the various plaintiff groups.
24. Following remand, in the spring of 2007, the Lauriello plaintiffs filed a second amended class action complaint, which the defendants answered. The parties then conducted significant discovery on the certification issues, with so many discovery-related disputes arising that the court appointed a special master to oversee the process. Class Counsel reports that throughout the course of the entire case, 54 depositions were taken. The plaintiffs ultimately (in
May 2012) sought to certify a class under Rule 23(b)(1) and Rule 23(b)(3), consisting of all members of the original MedPartners class who did not opt out, with the proposed class
held that defendant Caremark – and potentially the other defendants – were judicially estopped from contesting the existence of the original MedPartners class. Id. at 1126 n.4 (“Caremark is judicially estopped to now challenge the existence of a validly certified class, as recognized in the MedPartners securities litigation. The propriety of that certification has been resolved and is not subject to debate. This Court’s silence as to the applicability of the doctrine of judicial estoppel to any other party is not intended to foreclose consideration of such a claim, if appropriate, by the trial court.”). 11 DOCUMENT 3311
representatives to be James O. Finney, Jr., Sam Johnson, and the City of Birmingham Retirement and Relief System. This Court held a lengthy five-day class certification hearing between May
30, 2012 and June 4, 2012, during which it received live testimony and documentary evidence.
The parties all filed substantial post-hearing briefs. By order dated August 15, 2012, the Court then certified a class under Rule 23(b)(3), defined identically to the MedPartners class but for its opt outs,10 and appointed Hare, Wynn, Newell & Newton; North & Associates; and Somerville,
LLC, as class counsel.
25. Both parties appealed the class certification order – the plaintiffs seeking certification under Rule 23(b)(1) and the defendant seeking to reverse certification altogether. By order dated September 12, 2014, the Alabama Supreme Court rejected both appeals, affirming the trial court’s certification of a (b)(3) class. The Court held that common issues predominated because “[t]he unique facts of this case—the alleged representations were made to the class’s agents (counsel)—distinguishes this case from those in which the reliance of individual class
10 Specifically, the class was defined as: All Persons who (i) purchased MedPartners, Inc. (‘MedPartners’) common stock [including, but not limited to, through open-market transactions, mergers or acquisitions in which MedPartners issued common stock, acquisition through the Company’s Employee Stock Purchase Plan (‘ESPP’), and any other type of transaction in which a person acquired one or more shares of MedPartners stock in return for consideration] during the period from October 30, 1996, through January 7, 1998, inclusive (MedPartners employees who purchased shares through the ESPP in January 1998 being deemed to have purchased their shares on December 31, 1997); (ii) purchased call option contracts on MedPartners common stock during the period October 30, 1996, through January 7, 1998, inclusive; (iii) sold put option contracts on MedPartners common stock during the period October 30, 1996, through January 7, 1998, inclusive; or (iv) purchased MedPartners Threshold Appreciation Price Securities (‘TAPS’) in the September 15, 1997, offering or thereafter through January 7, 1998; or (v) tendered shares of Talbert Medical Management Holdings Corporation to MedPartners between August 20, 1997, and September 19, 1997 (‘The Settlement Class’); excluding all those members who opted out of the 1999 Class Settlement. 12 DOCUMENT 3311
members was at issue.”11 The Court rejected attacks on the adequacy and ethics of Class Counsel,
noting that “the instances of alleged misconduct were hotly contested, with the plaintiffs providing
expert testimony establishing that each of the purported violations was not, as Caremark and the
insurers allege, actually unethical when considered in the context in which the conduct
occurred,”12 and accordingly affirmed this Court’s rejection of these attacks. And the Court rejected defendants’ arguments that the class definition – encompassing various distinct
MedPartners shareholder groups and both those that did and did not recover in that initial litigation
– was overbroad.13 Finally, with one dissent, the Supreme Court rejected plaintiffs’ contention that a (b)(1) class should have been certified. Defendants sought reconsideration of this decision, which the Alabama Supreme Court denied on February 27, 2015.
26. On remand, plaintiffs filed a Fifth Amended Class Action Complaint on March 31,
2015, and prepared and sought approval of notice to the class. By order dated May 5, 2015, notice of certification of the class was mailed to 93,722 potential class members, 251 brokerages,
custodial banks, and other securities-holding institutions,14 and published in the Wall Street
Journal. Class members were provided an opportunity to opt out of the class by June 30, 2015.
A total of four class members exercised their opt-out rights.
27. The plaintiffs thereafter filed a Sixth Amended Class Action Complaint, which the
defendants answered in the spring of 2015.
11 Lauriello, 175 So.3d at 610. 12 Id. at 612. 13 Id. at 612-613. 14 Following receipt by these institutions and their provision of information to the notice administrator, 5,323 additional notices were mailed directly to putative class members and 709 notices were provided to institutions for forwarding to their beneficial owners. 13 DOCUMENT 3311
28. In the succeeding year the parties continued discovery in preparation for a trial,
with numerous contested discovery issues being litigated before this Court. For example,
notwithstanding the high Court’s holding that fraud on the class’s agent constituted fraud on the
class, defendants continued to argue that individual issues characterized this matter. To that end,
they sought discovery of absent class members, a motion that was strongly contested. By order
dated May 14, 2015 – and amended on May 18 and May 21 – this Court rejected that effort,
holding that “allowing the Defendants, at this late stage, to conduct discovery to be directed to,
potentially, thousands of absent class members would only serve to promote undue delay and
undue cost without any attendant benefit -- the very ills that class action litigation is designed to avoid.” The defendants sought review of the discovery decisions, but the Supreme Court rejected a writ of mandamus on July 30, 2015.
29. As discovery drew to a close, both parties filed motions for summary judgment on various issues in an effort to narrow the issues in the case throughout the fall and winter of
2015-2016. Class Counsel inform me that the defendants filed a total of eight (8) motions for summary judgment, all of which were denied. Class Counsel filed one motion for partial summary judgment regarding the statute of limitations defense.
30. Simultaneously, the defendants again moved to disqualify class counsel. By order dated November 24, 2015, the Court denied the motion to disqualify.
31. As trial neared, the parties began finalizing preparations with: [1] designation of
testimony and objections thereto; [2] submission of exhibit lists, and objections thereto; [3]
numerous motions to strike, and objections thereto; [4] submission of witness lists, and objections
thereto; [5] submission of deposition designations and objections thereto; [6] motions to quash and
14 DOCUMENT 3311
objections thereto; [7] dozens of motions in limine and to exclude, and objections thereto; [8] motions to strike, and objections thereto; [9] a motion for recusal, and objection thereto; and [10] motions to continue, and objections thereto. In all, Class Counsel report that they filed 28 motions in limine and the defendants filed 29 such motions and 8 motions to exclude. The defendants unsuccessfully sought interlocutory appellate review of the Court’s ruling on the judicial recusal issue.
32. Remarkably, on February 22, 2016, nearly 12 ½ years after Class Counsel filed
Lauriello’s initial complaint, approximately 30 lawyers assembled in the Jefferson County courtroom ready to commence the long-awaited trial. At the outset, the Court granted the plaintiffs’ motion for summary judgment as to the defendants’ statute of limitations defense.
Given the impact of the ruling on the case, the Court continued the trial. The defendants again noticed appeals seeking to mandamus the trial court and stop the trial from going forward.
33. On a parallel front, the parties had begun attempting to resolve the case through mediation. Although initial efforts failed, following the Court’s rejection of the defendants’ statute of limitations defense, the parties were able to reach a settlement in the spring of 2016.
34. On May 28, 2016, the plaintiffs filed a motion for preliminary approval of a proposed class action settlement. The Court heard and granted the motion on May 31, 2016.
The settlement creates a settlement fund of $310 million, with the AIG defendants contributing
$230 million and Caremark contributing $80 million. All class members are eligible to receive compensation from the fund according to a plan of allocation submitted by Class Counsel and approved by the Court. The fund will be distributed among various claimants according to the same proportions that governed distribution of the MedPartners settlement fund. Class members
15 DOCUMENT 3311
seeking to claim from the fund must file a proof of claim and release. These forms vary depending upon whether or not the class members claimed in the MedPartners settlement; if they did, the claims process here is more streamlined. Attorney’s fees, expenses, and a proposed incentive award to the class representatives will also be distributed from the fund. No funds will revert to the defendant as all available funds will be distributed pro rata among class members filing valid claims. In return for their compensation, the class has released all claims against the defendants and related entities. Class members unhappy with the settlement may, of course, register objections to it with the Court.
35. By the present motion, Class Counsel seek a fee of $124 million, or 40% of the common fund.
III. THE REQUESTED FEE IS REASONABLE
36. More than 20 years ago, the Alabama Supreme Court stated that “this Court, like the federal courts, has long recognized that a lawyer who recovers an award for the benefit of a class of clients is entitled to a reasonable fee from the amount recovered.”15 There is, therefore, no doubt that class counsel are “entitled to a reasonable fee for their services.”16
37. There is also no doubt about how such a fee should be calculated, as the Alabama
Supreme Court also held that “in a class action where the plaintiff class prevails and the lawyer’s efforts result in a recovery of a fund, by way of settlement or trial, a reasonable attorney fee should be determined as a percentage of the amount agreed upon in settlement or recovered at trial.”17
15 Edelman, 663 So. 2d at 958. 16 Id. at 958-959. 17 Id. at 959. The Alabama Supreme Court has noted that a lodestar approach to calculating an appropriate fee might be appropriate in class action cases not involving true common funds. City 16 DOCUMENT 3311
38. Moreover, to guide a court’s assessment of the reasonableness of a proposed fee,
the Alabama Supreme Court has utilized “general guidelines” referred to as the Peebles factors, the case from which they emanate. These are: “(1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred by the attorney; (8) whether the fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.”18
39. Counsel herein have created a $310 million common fund for the class and seek a fee constituting 40% of that fund, or $124 million. In the following two sub-sections, I analyze the requested fee in both quantitative and qualitative terms, showing that 40% is a percentage consistent with what courts award in similar circumstances (Part A, infra); and that a 40% fee,
while significant, is reasonable in the very unique context of this matter (Part B, infra). The
of Birmingham v. Horn, 810 So. 2d 667, 680 (Ala. 2001) (“The common-fund approach becomes unworkable when the recovery does not involve a quantifiable monetary settlement or damages award. This is often the case where, as here, the litigation has been undertaken solely to effect a societal change. Generally, such a case involves the declaration or enforcement of rights where a statute authorizing the lawsuit has likewise authorized the award of attorney fees. Because of the intangible nature of the relief granted, courts have steadfastly employed the lodestar method to calculate attorney fees in such cases.”) (internal citation omitted). But it has underscored that the percentage approach remains the “preferred method” in those cases in which funds are generated. Union Fid. Life Ins. Co. v. McCurdy, 781 So. 2d 186, 195 (Ala. 2000). 18 Edelman, 663 So. 2d at 959-60 (internal quotation marks and original alterations omitted) (quoting Peebles v. Miley, 439 So.2d 137 (Ala. 1983)). 17 DOCUMENT 3311
quantitative analysis speaks to one of the 12 Peebles factors,19 while the qualitative analysis
speaks to another ten.20 The remaining factor – the professional experience and reputation of the
attorney – is, as the Alabama Supreme Court has already noted,21 uncontested in this matter.
(A) Quantitative Analysis Supports the Reasonableness of a 40% Fee 40. Counsel seek 40% of the common fund that they have created for the class. Two leading empirical studies report that the mean percentage in class cases is between 24% and
25.7%.22 In my own database of more than 1,000 state and federal class action settlements, the average fee award is 27.1% in all cases. The present request is therefore higher than these averages. But this case is far from average. Five further points place the fee request in the proper context, demonstrating its reasonableness. 41. First, and most importantly, the Alabama Supreme Court has acknowledged the reasonableness of a 40% fee, in appropriate circumstances, stating:
19 Factor (10) the fee customarily charged in the locality for similar legal services. 20 Factors (1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred by the attorney; (8) whether the fee is fixed or contingent; (9) the nature and length of a professional relationship; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances. 21 Lauriello, 175 So.3d at 611 n.12 (“It is undisputed that the challenge of Caremark and the insurers in this regard is not based on the experience, ability, or credentials of class counsel, the high level of which all parties concede.”). 22 Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. EMPIRICAL LEGAL STUD. 811, 835 (2010) (concluding from data of attorney’s fees awards for settled class actions in federal court in 2006 and 2007 that the average award was 25.7% and the median award was 25%) (hereafter “Fitzpatrick”); Theodore Eisenberg & Geoffrey Miller, Attorney Fees and Expenses in Class Action Settlements: 1993–2008, 7 J. EMPIRICAL LEGAL STUD 248, 259, 260 tbl. 4 (2010) (concluding that mean fee award in federal cases over 15 year period was 24% and median award was 25%). 18 DOCUMENT 3311
Class actions are designed to provide a vehicle for redress where wrongful conduct has resulted in harm to a great number of people, but none has been hurt badly enough to justify pursuit of an individual claim. Where a recovery is made on behalf of a class, it is reasonable to award attorney fees on the basis of a percentage of the amount recovered. In some cases, 20% may be reasonable, based upon the amount of the award and other factors. In other cases 40%, or even 50%, may be justified.23 In an earlier case, the Alabama Supreme Court appended a list of cases it had relied on and had deemed “reasonable,” with the list encompassing cases with fees of 40%, 48%, 49%, and 50%.24 The Alabama Supreme Court noted that these higher percentages tended to characterize cases with smaller funds,25 a fact to which I return below.26 42. Second, my own database of class action fee awards supports the conclusion that a fee in the 40% range is not uncommon, particularly in cases that progress to trial. Specifically, in my data set:
55 of 1,017 cases with applicable data show awards over 40%.
36 of 1,017 cases with applicable data show combined fee and costs awards over 50%.
The mean fee award across 11 cases that progressed to trial with applicable data was 36%,27 with 5 cases having awards of 38.9% or more and 3 of those having fee awards of 40% or more.
The median combined fee and costs award in the 11 cases that progressed to trial with applicable data was 45%.28
23 Edelman, 663 So. 2d at 960. 24 Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238, 1245-46 & Appendix 1 (Ala. 1985) (noting that “fees from 20% to 25% of the recovery” have “generally worked out to be the rule in our own State” but holding that “this is not to say that there have not been courts that have assessed one-third, or even higher fees which we, after reading the decisions, also conclude were reasonable”). 25 Id. 26 See ¶ 46, infra. 27 A 12th case had a fee award of 7.15%. The case was an outlier because the class received no cash relief. I therefore removed it from the calculation in the text. Had I left it in, the mean would have been 34%. 28 A 12th case had a combined fee and costs award of 7.62%. The case was an outlier because the 19 DOCUMENT 3311
These data points show that courts will award fees consistent with the percentage sought here in appropriate circumstances, namely in the presence of litigation that proceeded to trial and/or through appeal. 43. Third, courts throughout the United States have awarded class counsel fees of 40% or greater in appropriate circumstances. I append to this Declaration as Exhibit C a list of 20 such exemplary cases. This list is not meant to be either exhaustive or representative of all percentage awards. Rather, it demonstrates that courts approve percentage awards in the 40% range sought here in appropriate circumstances. 44. Fourth, the 40% fee sought here is supported by evidence of the rates charged in the private marketplace for similar services, namely empirical evidence on rates charged by contingent fee trial lawyers in non-class action cases. These data are helpful because, to consider the work counsel undertook here, it is necessary to look beyond the class action context since so few class suits proceed to trial. A better comparative group is trial lawyers in regular contingent fee cases, lawyers who more often take cases to trial. The general assumption about market rates for contingent fee lawyers is that most charge at least 33% and that the rates increase into the 40% range if a case goes to trial or on appeal. Those assumptions are largely borne out by the empirical data on contingent fee lawyers. The leading study on point shows that most contingent fee lawyers charge a flat 33% rate, but about a third of such lawyers charge variable rates ranging from 33%-50%.29 The key variables that pushed rates higher were the presence of a trial or an appeal;30 the presence of preparation for a trial and (several) appeals therefore contains not one but several factors supporting a 40% fee. A more recent study focusing on medical negligence
class received no cash relief. I therefore removed it from the calculation in the text. Had I left it in, the median would have been 43.57%. 29 Herbert M. Kritzer, Seven Dogged Myths Concerning Contingency Fees, 80 WASH. U. L.Q. 739, 759 (2002). 30 Id. 20 DOCUMENT 3311
cases – which are more likely than routine contingent cases to be contested through trial or appeal
– showed that 50% of attorneys charged a flat 40% fee,31 and only 14% charged a flat 33%, with another 33% charging a variable rate. Another recent study of 42 patent cases showed that 10 had a fixed contingent rate, with the mean of those 10 contracts being 38.6%; the remaining 32 contracts tied rates to the litigation stage and “the average percentage upon filing was 28% and the average through appeal was 40.2%.”32 Hence, the available empirical data on market rates for contingent fee trial lawyers support the conclusion that a 40% fee is warranted in a case involving both trial and an appeal(s). 45. Fifth, counsel in the underlying MedPartners settlement sought – and this Court approved – a fee constituting one third (33.33%) of that fund. The riskiness of this case, its length, Class Counsel’s tremendous investment in it, and the stunning results achieved (described in more detail below) all quite obviously support a higher fee award than that received by counsel in the MedPartners case. This data point – the fee award in a large class action case in this same jurisdiction, in a related matter – provides quantitative evidence of fees that this Court has awarded in similar matters, evidence which supports the 40% request here. 46. In sum, the available quantitative information supports Counsel’s request for 40% of the fund that their efforts created. As noted above, the Alabama Supreme Court approvingly referenced fees up to 50%, while stating that these higher percentages tend to occur in smaller fund cases and referencing cases with fund sizes ranging from $18-$70,000.33 Empirical evidence does show that percentage awards decrease as fund sizes increase;34 this is often referred to as the
31 Steven Garber et al., Do Noneconomic Damages Caps and Attorney Fee Limits Reduce Access to Justice for Victims of Medical Negligence?, 6 J. EMPIRICAL LEGAL STUD. 637, 652 n.29 (2009). 32 David L. Schwartz, The Rise of Contingent Fee Representation in Patent Litigation, 64 ALA. L. REV. 335 (2012). 33 Reynolds, 471 So.2d at 1246. 34 See Fitzpatrick, supra note 22, at 839 tbl. 11 (reporting mean award of 17.8% and median award of 19.5% for funds of $250-$500 million). 21 DOCUMENT 3311
“mega-fund effect.”35 These facts might imply that a 40% fee is inappropriate given the large size of the current fund. But awarding smaller percentages in larger fund cases is a loose approach courts have taken, not a hard and fast rule, and it is an approach that courts take to reflect the assumption that if a case yields a large fund in a conventional litigation time frame, it may embody a windfall at normal fee levels. Such a presumption is not applicable in this case, given its protracted nature, extensive litigation through several appeals and up to the eve of trial, the vast amounts of time and money Class Counsel have invested, the extraordinary risks that they took and results they achieved, as discussed below. Thus, as set forth above, higher percentages are not limited to small fund cases: they often characterize cases that proceed to trial and/or through appeals regardless of the fund sizes in such matters, as these are cases in which counsel have invested enormous resources and in which they are therefore unlikely to reap a windfall from a higher percentage award. Moreover, on my Exhibit C list of cases with fees at 40% or higher, the fund sizes range from $250,000 to $377 million and the average fund size in these cases is roughly $28 million, data that update the Alabama Supreme Court’s 1985 presumption that higher percentages appear mostly in small fund matters. It would be more accurate to say that higher percentages characterize two contexts in which they are unlikely to represent a windfall: [1] small fund cases, in which the high percentage amounts to a relatively small fee; and [2] long, protracted cases involving trials and/or appeals, in which the high percentage reflects counsel’s significant, long-term investment in the case. In short, while there may be a correlation between the size of the fund and the percentages courts set, the size of the fund is not determinative of the percentage counsel deserve – what determines counsel’s entitlement are the facts of the particular case. I will now turn to the facts that characterize this case.
35 For a discussion, see 5 Newberg on Class Actions § 15:81 (5th ed.). 22 DOCUMENT 3311
(B) Qualitative Analysis Supports the Reasonableness of a 40% Fee
47. Ten of the Peebles factors – (1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred by the attorney; (8) whether the fee is fixed or contingent; (9) the nature and length of a professional relationship; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances – focus the fee analysis on the two key aspects of any class action lawsuit: the risks that counsel took and the results that they achieved for the class in doing so. In the following paragraphs, I identify and discuss the extraordinary risks and results in this case.
The Risks Counsel Undertook
48. Nine points demonstrate the riskiness of this matter.
This case did not follow a government investigation. Many class action cases piggy-back on the heels of government enforcement actions and/or headlines in the newspapers. In these cases, class counsel supplement the government’s law enforcement by recovering compensatory damages for class members, as the government action typically just fines the wrong-doer. However, when class action lawyers pursue a case that has not been the subject of government investigation, they are doing more than simply supplementing the government: they are substituting for the government, acting as true “private attorneys general.”36 Yet in doing so, counsel typically undertake significant additional risk. When a case follows on the heels of a government action, liability may be all but given. By contrast, when counsel pursue wrong-doing from scratch, they must prove both liability and damages. And they must do so without the significant advantages of a governmental entity litigating alongside them. Here, Class Counsel themselves detected the wrong-doing (a point to which I return below) and
36 For a discussion of the distinction between supplemental and substitute class counsel, see on William B. Rubenstein, On What A “Private Attorney General” Is – And Why It Matters, 57 VAND. L. REV. 2129, 2149-53 (2004) (hereafter “Private Attorney General”). 23 DOCUMENT 3311
then independently investigated the facts and enforced the law, without being able to rely on any parallel government investigation. They alone shouldered the burden of proving this case and, as described below, there was significant risk in doing so.
This case has no precedent or parallel. Many contingent fee lawyers specialize in particular types of harms, a practice that enables them to significantly lower their investment in each new case. An asbestos lawyer, for example, has litigated countless asbestos cases in the past; while the facts of an asbestos case may be difficult to learn the first time, these facts are generally the same for the hundredth or thousandth case, varied only by the particular client’s specific situation. Often, the lawyers can therefore re-use information, pleadings, parts of briefs, etc. from prior actions. These same attributes characterize the class action bar: class action lawyers tend to specialize in particular types of cases (securities, employment, antitrust, consumer) and thus many cases, even those involving millions of claimants and hundreds of millions of dollars, can be handled relatively efficiently with some work product borrowed from earlier efforts. By contrast, this case is a complete outlier, the single most unique class action case I have ever seen. It is a “class action about a class action,” a case on behalf of a class that alleges that this same class was defrauded in an earlier class action. Yet, counsel’s task was not to re-litigate the earlier action (relying on pleadings from that case, for example) but rather to prove, from scratch, that the earlier class was defrauded. I know of absolutely no precedent for a case like this.37 Given the novel nature of the case, there were no known precedents upon which to rely, no pleadings to borrow from other cases. Class Counsel were required to invent many of the strategies, tactics, details, pleadings, motions, etc., from scratch. The novel nature of the case made success much less certain, while simultaneously raising the stakes by requiring increased investments of both labor and out-of-pocket costs.
This case is a one-off case, unlikely to generate future business. This case is so unique that not only did Class Counsel have to invent a playbook for it, it is surely true that they will never be able to use that playbook again. This investment by Class Counsel is unlikely to open a new avenue of business for them, enabling them to utilize the experience and work product here in future matters. If their investment had such an effect, it would have tempered the risk of the case because they could have spread that risk across a whole new line of business. But given the one-off nature of this case, Class Counsel’s investment in it was effectively an investment solely in these clients, with no real hope for future repeat business arising out of it. It is not inequitable, therefore, to exact a fee at a higher end of the
37 The closest parallel, and it is not that close, are class actions alleging malpractice by class counsel in earlier class actions. There are very few such cases and most courts hold that they are foreclosed by the preclusive effect of the class action court’s approval of the class action. For a discussion, see 6 Newberg on Class Actions §§ 19:33-34 (5th ed.). 24 DOCUMENT 3311
fee range because these clients, and these clients alone, are the beneficiaries of this suit.
Class Counsel faced the real possibility that the evidentiary trail from the MedPartners matter would be stale. The underlying facts of this case occurred more than 15 years before the trial would have taken place: the MedPartners settlement was achieved in late 1999, with the trial in this matter set for the summer of 2016. That raises the obvious point that Class Counsel risked being dismissed on limitations or laches grounds – risks that it overcame. But as pertinently, it meant that Class Counsel had no idea what it would find during the discovery process when it filed the case. It was highly plausible that witnesses and evidence were lost to history. Tackling a case with this vintage problem significantly raised the risks both legally and factually.
Class certification was highly uncertain. One of the most significant risks counsel faced in this case was securing certification of the class. This is a fraud case and courts are hesitant to certify such cases for class treatment: the reliance element in a fraud case is typically individualized in nature, meaning that common issues often do not predominate in such cases. Indeed, just three years before the commencement of this fraud case, the Alabama Supreme Court had held that “fraud claims are uniquely unsuited for class treatment.”38 Class Counsel relied on the theory that the fraud on the class’s agent was fraud on the class, such that the case turned on agency issues, not individual reliance questions. Having served as an expert witness during that phase of the case, I am intimately familiar with the fact that there were no applicable precedents (the Alabama Supreme Court confirmed that conclusion)39 and that borrowing agency law principles and applying them to the class action context was novel – and therefore entailed significant risk of failure.
The defendants are two of the largest corporations in the country. In pursuing this case, Class Counsel took on two of the largest corporations in the United States, if not the world. Fortune lists CVS Health as number 7 on its list of the 500 largest corporations in the United States,40 and it lists AIG as number 49.41 This meant that these defendants had vast reservoirs of resources to dip into in defending
38 Compass Bank v. Snow, 823 So. 2d 667, 673 (Ala. 2001) (internal quotation marks and citations omitted). 39 Lauriello, 175 So. 3d at 605-06 (“The parties’ counsel acknowledge that they were unable to find a decision directly on point with the factual circumstances of the present case, i.e., a decision involving allegations of a fraud perpetrated on a certified class in connection with the settlement of the class action in which that class had previously been certified.”). 40 See CVS Health, FORTUNE 500 (2016), http://beta.fortune.com/fortune500/cvs-health-7/. 41 See AIG, FORTUNE 500 (2016), http://beta.fortune.com/fortune500/aig-49/. 25 DOCUMENT 3311
the case, with the real possibility of wearing down Class Counsel’s willingness to continue to invest more money into the case, year in and year out.
The defendants hired some of the largest and most prestigious law firms in the country to defend them. Class Counsel not only challenged well-funded litigants, those litigants were represented by highly-skilled and well-funded legal counsel. Litigating against such firms poses risks far beyond those that inhere in the average contingent fee lawsuit. This is particularly true in that the firms appointed to serve as class counsel in this matter are one small boutique firm with 20 lawyers and two sole practitioners. It is not unfair to characterize the litigation as having a David and Goliath quality to it.
Settlement was unlikely. Most litigation settles and most complex litigation does as well. While settlement in a class suit is fairly predictable if the plaintiffs survive a motion to dismiss and/or a motion for class certification, the aforementioned factors made settlement of this case highly unlikely. The novelty of the case meant that there were few known anchors around which to frame such a settlement. And the case’s complexity gave the defendants an incentive to push to trial. For example, for a jury to have found for the class in this suit, it would have had to have grasped the nature of the underlying securities class action and appreciated how fraud in the settlement of that suit constituted fraud on the present class. It is difficult for lay persons to grasp the nature of a class action under any circumstances, but to do so in the context of a “class action about a class action” added an entire level of risk for plaintiffs had the case gone to trial. The novelty and complexity argued against settlement and the defendants’ vast resources enabled them to continue litigating to trial.
Class Counsel bore all of these risks themselves. In most class action matters, particularly of this magnitude, the class is represented by a collection of plaintiffs’ firms.42 This means that the lawyers can spread the risk among the various firms. Here, the small firm and sole practitioners did not have the assistance of any of the larger, national plaintiffs’ firms (unlike the MedPartners class). Class Counsel effectively bore 100% of these enumerated risks. 49. These nine points demonstrate what seems incontestable: Class Counsel took a stunning risk in undertaking this important, unique, and uncertain case and they invested unbelievable amounts of capital and labor in significant adversarial litigation, without the promise
42 See, e.g., Federal Judicial Center, Manual for Complex Litigation, Fourth § 10.22 (2004) (discussing presence of multiple counsel in complex litigation and advising judges on how to manage); Judith Resnick et al., Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. REV. 296, 321 n.74 (1996) (describing a class action “in which some 60 firms are reportedly involved”). 26 DOCUMENT 3311
of any return on that investment. An appreciation of the scope of this risk helps illuminate the monumental nature of Class Counsel’s achievement.
The Results Counsel Achieved
50. Six components of this case’s outcome speak to the results Class Counsel obtained in this matter:
The relief required significant, contested adversarial litigation against strong opposition. The well-funded defendants contested nearly every aspect of this lawsuit, raising jurisdictional objections, arguing that the case was time barred, seeking disqualification of counsel, opposing class certification, battling over discovery requests, moving for summary judgment, challenging expert witnesses and evidentiary proffers pre-trial, filing numerous appeals and writs of mandamus, vigorously defending on the merits – even seeking recusal of the trial judge on the eve of trial. Class Counsel was forced to litigate all of these issues – often more than once – and as noted above, none were issues that could be “cut and paste” from prior efforts. The history of this case, set forth in detail above, shows the tremendous efforts Class Counsel expended litigating against such well-funded adversaries. If this litigation had a name, it might be “Everything Was Contested,” but even that might be an understatement since many things were contested more than once and/or by more than one defendant.
Class members get significant monetary relief. The initial MedPartners settlement amounted to roughly $56 million. The present settlement fund is $310 million. This means that Class Counsel have generated returns for the class members that are more than 5 ½ times as great as the compensation class members received from the MedPartners settlement. Put differently, between the two settlements, the class has received about $366 million, and 85% of that money is attributable to this settlement.
100% of the class is entitled to relief. This full relief has been made available to the entire class. No portion of the class was excluded from the settlement.
The claiming process is straightforward. Those class members who filed claims in the MedPartners case received individualized notice and may file a simple claim form. Those who did not file claims initially were also notified and may also file claims in a straightforward, albeit slightly more demanding, manner. In both cases, class members are able to file claims directly online.
No monies will revert to the defendants. Unclaimed funds will be distributed pro rata among class members who filed claims, with no funds reverting to the 27 DOCUMENT 3311
defendants. This is not a “claims made” settlement nor an illusionary fund, but real relief for the entire present class, with a significant deterrent effect on the defendants.
The relief obtained compares favorably to results achieved in similar cases. This case is a settlement, but that designation is deceiving in two regards: first, certification was hotly contested unlike in many class actions, which are certified and settled at once; second, the size of the settlement fund is enormous. Given the sui generis nature of the case, there is no easy comparison set, but viewed as a consumer fraud case (rather than a securities class action), it would surely be one of the – if not the – largest consumer fraud settlement in American history. It is also surely one of the largest class action settlements in Alabama state court history. In short, this “settlement” is about as close to a complete plaintiffs’ “judgment” as a settlement can be and an extraordinary result for the clients.
51. These nine risk and six result factors demonstrate the strength of the settlement,
generally, and the particularly important contributions of Class Counsel, specifically, in this litigation. These achievements should not be viewed in isolation, however. As I stated at the outset of this Declaration, this check-list approach enumerates the many important aspects of Class
Counsel’s achievements but there are several factors at issue in this case that I have rarely seen in decades of class action experience.
52. First, this is a class action in which Class Counsel themselves not only prosecuted the case but were responsible for detecting the wrong-doing. This is an important fact in that it distinguishes this case from many current class actions. There are a lot of high profile cases in the media everyday – oil spills and other environmental disasters, automobile defects, failed pharmaceutical products, corporate security breaches, mortgage-backed securities class actions, etc. – and most class action attorneys, being risk averse, flock to these cases. They do so because liability is almost a given and/or they can ride the coattails of initial government enforcement efforts. There is nothing wrong with the fact that class action lawyers do this – as noted earlier,
28 DOCUMENT 3311
they perform a valuable service in collecting compensation for the class in such settings, even if the government is fining or prosecuting the defendants. Nonetheless, what these efforts do not do is hunt down unreported wrong-doing. Lawyers who do undertake the detection function, in addition to the enforcement functions, should be compensated for it. Indeed, the detection function is so important in some areas that the law provides special incentives to those who detect and inform the government of wrong-doing; specifically, individuals who detect and report fraud against the government (so called “whistle-blowers” or relators) are entitled to a portion of the government’s recovery in the underlying fraud (or so-called qui tam) case so as to encourage them to step forward and identify wrong-doing. Here, Class Counsel performed that exact function and it is not inappropriate that their fee percentage reflect this additional, critical, role that they served.
Put simply, but for these particular lawyers’ efforts, this case would never have been brought – a fact that is generally not true of most class suits.
53. Second, this case is extraordinary because class certification was contested and the case proceeded to trial (albeit, settling at the eve of trial). As noted above, most class actions settle but most do so with certification only occurring in conjunction with the settlement, not having been contested. Moreover, most settlements occur well before the parties prepare for trial.
By winning class certification – here and on appeal – and by readying the case for trial, Class
Counsel did far more here than class action attorneys do in the typical settled case.
54. Third, while I enumerate a series of factors above, it is extraordinarily rare to find the constellation of so many positive factors in one case. Long before drafting this Declaration, I noted in the Newberg treatise that counsel’s remuneration should reflect the risks that they took
29 DOCUMENT 3311
(and results that they achieved) and I specifically suggested that courts should reward lawyers who
undertake:
[1] novel cases, cutting edge cases, and especially one-off cases, where counsel could not rely on pleadings from prior cases and would be unlikely to open a new line of business based on the documents in the present case; [2] cases in which counsel’s actions not only enforced the law but were responsible for detecting the wrongdoing in first place; thus, cases in which counsel learn of a potential problem and invest significant resources in tracking down the issue, unpacking its nuances, engaging experts to inform them of the quality of the case, etc., should be distinguished from actions piggybacking on government enforcement matters; and [3] cases in which counsel invested significant amounts of their own money without being able to share the risk across a series of firms.43
This case is the unbelievably rare confluence of all three of these factors.
55. Class action attorneys serve a critical social function in pursuing legal claims worth less than the cost of individual litigation (so-called “negative value claims”),44 a function captured
by the title “private attorneys general.”45 Yet there are better and worse cases, better and worse
lawyers. A court’s fee award in a class action case sets class action lawyers’ incentives. To pay
lawyers more for doing x than for doing y will incentivize them to do x rather than y. Rewarding
Class Counsel in this case with a 40% fee not only acknowledges the risks that they took, and the results that they achieved, but – as importantly – it acknowledges the value in the remarkable detection, investment, and enforcement work that they performed in this matter.
* * *
43 5 Newberg on Class Actions § 15:87 (5th ed.) 44 For a discussion, see William B. Rubenstein, Why Enable Litigation: A Positive Externalities Theory of the Small Claims Class Action, 74 UMKC L. REV. 709 (2006). 45 For a discussion, see Rubenstein, Private Attorney General, supra note 36. 30 DOCUMENT 3311
56. I have testified that:
Class Counsel’s proposed 40% fee is one supported by Alabama Supreme Court precedent and a percentage courts have regularly approved in the rare cases with qualities similar to this one.
Class Counsel’s proposed 40% fee is justified by a series of qualitative factors that spell out the incredible risks that they confronted in pursuing this 13-year-long epic case and the remarkable $310 million common fund that they achieved for their clients.
This case is the extraordinarily rare one in which Class Counsel both detected the wrong-doing and then single-handedly enforced the law, showing an unbelievable commitment in terms of time and money devoted to this class. Awarding Class Counsel 40% of the common fund would send a signal incentivizing class action lawyers to pursue cases such as this one and to do so in the superb manner that Class Counsel have done here.
I declare that the foregoing is true and correct.
Executed this 15th day of July, 2016, at Los Angeles, California.
______William B. Rubenstein
31 DOCUMENT 3311
EXHIBIT A DOCUMENT 3311
PROFESSOR WILLIAM B. RUBENSTEIN
Harvard Law School - AR323 (617) 496-7320 1545 Massachusetts Avenue [email protected] Cambridge, MA 02138
ACADEMIC EMPLOYMENT
HARVARD LAW SCHOOL, CAMBRIDGE MA Sidley Austin Professor of Law 2011- Professor of Law 2007-2011 Bruce Bromley Visiting Professor of Law 2006-2007 Visiting Professor of Law 2003-2004, 2005-2006 Lecturer in Law 1990-1996 Courses: Civil Procedure; Class Action Law; Remedies Awards: 2012 Albert M. Sacks-Paul A. Freund Award for Teaching Excellence
UCLA SCHOOL OF LAW, LOS ANGELES CA Professor of Law 2002-2007 Acting Professor of Law 1997-2002 Courses: Civil Procedure; Complex Litigation; Remedies Awards: 2002 Rutter Award for Excellence in Teaching Top 20 California Lawyers Under 40, Calif. Law Business (2000)
STANFORD LAW SCHOOL, STANFORD CA Acting Associate Professor of Law 1995-1997 Courses: Civil Procedure; Federal Litigation Awards: 1997 John Bingham Hurlbut Award for Excellence in Teaching
YALE LAW SCHOOL, NEW HAVEN CT Lecturer in Law 1994, 1995
BENJAMIN N. CARDOZO SCHOOL OF LAW, NEW YORK NY Visiting Professor Summer 2005
LITIGATION-RELATED EMPLOYMENT
AMERICAN CIVIL LIBERTIES UNION, NATIONAL OFFICE, NEW YORK NY Project Director and Staff Counsel 1987-1995
Litigated impact cases in federal and state courts throughout the US. Supervised a staff of attorneys at the national office, oversaw work of ACLU attorneys around the country, and coordinated work with private cooperating counsel nationwide. Significant experience in complex litigation practice and procedural issues; appellate litigation; litigation coordination, planning and oversight.
HON. STANLEY SPORKIN, U.S. DISTRICT COURT, WASHINGTON DC Law Clerk 1986-87
PUBLIC CITIZEN LITIGATION GROUP, WASHINGTON DC Intern Summer 1985
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EDUCATION
HARVARD LAW SCHOOL, CAMBRIDGE MA J.D., 1986, magna cum laude
YALE COLLEGE, NEW HAVEN CT B.A., 1982, magna cum laude Editor-in-Chief, YALE DAILY NEWS
SELECTED COMPLEX LITIGATION EXPERIENCE
Professional Service and Highlighted Activities
" Sole Author, NEWBERG ON CLASS ACTIONS (sole author of Fourth Edition updates and Fifth Edition since 2008)
" Invited Speaker, Judicial Panel on Multidistrict Litigation, Multidistrict Litigation (MDL) Transferee Judges Conference, Palm Beach, Florida (invited to present to MDL judges on recent developments in class action law and related topics (2010, 2011, 2012, 2013, 2014 (invited), 2015, 2016 (forthcoming))
" Adviser, American Law Institute, Project on the Principles of the Law of Aggregate Litigation, Philadelphia, Pennsylvania
" Author, Amicus brief filed in the United States Supreme Court on behalf of civil procedure and complex litigation law professors concerning the importance of the class action lawsuit (AT&T Mobility v. Concepcion, No. 09-893, 131 S. Ct. 1740 (2011))
" Special counsel, Appointed by the United States Court of Appeals for the Second Circuit to argue for affirmance of district court fee decision in complex securities class action (In re Indymac Mortgage-Backed Securities Litigation, Civ. 15-1310 (2d Cir. 2015)).
" Amicus curiae, Amicus brief filed in California Supreme Court on proper approach to attorney’s fees in common fund cases (Laffitte v. Robert Half International, Case: S222996, Supreme Court of California (2016))
" AExpert’s Corner” (Monthly Column), Class Action Attorney Fee Digest, 2007-2011
" Advisory Board, Class Action Law Monitor (Strafford Publications), 2008-
" Co-Chair, ABA Litigation Section, Mass Torts Committee, Class Action Sub-Committee, 2007
" Planning Committee, American Bar Association, Annual National Institute on Class Actions Conference, 2006, 2007
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Expert Witness
" Submitted an expert witness declaration concerning reasonableness of attorney=s fee request in sealed fee mediation (2016)
" Submitted an expert witness declaration concerning reasonableness of attorney’s fee request (Geancopoulos v. Philip Morris USA Inc., Civil Action No. 98-6002-BLS1 (Mass. Superior Court, Suffolk County)
" Submitted an expert witness declaration concerning reasonableness of attorney=s fee request in sealed fee mediation (2016)
" Submitted an expert witness declaration concerning reasonableness of attorney’s fee request (Gates v. United Healthcare Insurance Company, Case No. 11 Civ. 3487 (KFB), U.S. Dist. Ct.., S.D.N.Y. (2015))
" Submitted an expert witness declaration concerning reasonableness of attorney’s fee request (In re High-Tech Employee Antitrust Litig., 2015 WL 5158730 (N.D. Cal. Sept. 2, 2015))
" Retained as an expert witness concerning adequacy of putative class representatives in securities class action (Medoff v. CVS Caremark Corp., Case No. 1:09-cv-00554, U.S. Dist. Ct., D.R.I. (2015))
" Submitted an expert witness declaration concerning reasonableness of proposed class action settlement, settlement class certification, attorney=s fees and incentive awards (Fitzgerald Farms, LLC v. Chespeake Operating, L.L.C., Case No. CJ-2010-38, Dist. Ct., Beaver County, Oklahoma (2015))
" Submitted an expert witness declaration concerning reasonableness of attorney=s fee request (Asghari v. Volkswagen Group of America, Inc., No. CV13-02529, U.S. Dist. Ct., C.D. Cal. (2015))
" Submitted an expert witness declaration concerning propriety of severing individual cases from class action and resulting statute of repose ramifications (In re: American International Group, Inc. 2008 Securities Litigation, 08-CV-4772-LTS-DCF, U.S. Dist. Ct., S.D.N.Y. (2015))
" Retained by Fortune Global 100 Corporation as an expert witness on fee matter that settled before testimony (2015)
" Submitted an expert witness declaration concerning reasonableness of attorney=s fee request (In re: Hyundai and Kia Fuel Economy Litigation, MDL 13-02424, U.S. Dist. Ct., C.D. Cal. (2014))
" Submitted an expert witness declaration concerning reasonableness of attorney’s fee request (Ammari Electronics v. Pacific Bell Directory, Case No. RG0522096, California Superior Court, Alameda County (2014))
" Submitted an expert witness declaration and deposed concerning plaintiff class action practices under the Private Securities Litigation Reform Act of 1995 (PSLRA), as related to statute of
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limitations question (Federal Home Loan Bank of San Francisco v. Deutsche Bank Securities, Inc., Case No. CGC-10-497839, California Superior Court, San Francisco County (2014))
" Submitted an expert witness declaration and deposed concerning plaintiff class action practices under the Private Securities Litigation Reform Act of 1995 (PSLRA), as related to statute of limitations question (Federal Home Loan Bank of San Francisco v. Credit Suisse Securities (USA) LLC, Case No. CGC-10-497840, California Superior Court, San Francisco County (2014))
" Retained as expert witness on proper level of common benefit fee in MDL (In re Neurontin Marketing and Sales Practice Litigation, Civil Action No. 04-10981, MDL 1629, U.S. Dist. Ct., D. Mass. (2014))
" Submitted an expert witness declaration concerning proper approach to attorney=s fees under California law in a statutory fee-shifting case (Perrin v. Nabors Well Services Co., Case No. 1220037974, Judicial Arbitration and Mediation Services (JAMS) (2013))
" Submitted an expert witness declaration concerning fairness and adequacy of proposed nationwide class action settlement (Verdejo v. Vanguard Piping Systems, Case No. BC448383, California Superior Court, Los Angeles County (2013))
" Retained as an expert witness regarding fairness, adequacy, and reasonableness of proposed nationwide consumer class action settlement (Herke v. Merck, No. 2:09-cv-07218, MDL Docket No. 1657 (In re Vioxx Products Liability Litigation), U.S. Dist. Ct., E. D. La. (2013))
" Retained as an expert witness concerning ascertainability requirement for class certification and related issues (Henderson v. Acxiom Risk Mitigation, Inc., Case No. 3:12-cv-00589-REP, U.S. Dist. Ct., E.D. Va. (2013))
" Submitted an expert witness declaration concerning Rule 23(g) selection of competing counsel (White v. Experian Information Solutions, Inc., Case No. 05-CV-1070, U.S. Dist. Ct., C.D. Cal. (2013))
" Submitted an expert witness declaration concerning reasonableness of class action settlement and performing analysis of Anet expected value@ of settlement benefits (In re Navistar Diesel Engine Products Liab. Litig., 2013 WL 10545508 (N.D. Ill. July 3, 2013))
" Submitted an expert witness declaration concerning reasonableness of class action settlement and attorney=s fee request (Commonwealth Care All. v. Astrazeneca Pharm. L.P., 2013 WL 6268236 (Mass. Super. Aug. 5, 2013))
" Submitted an expert witness declaration concerning propriety of preliminary settlement approval in nationwide consumer class action settlement (Anaya v. Quicktrim, LLC, Case No. CIVVS 120177, California Superior Court, San Bernardino County (2012))
" Submitted expert witness affidavit concerning fee issues in common fund class action (Tuttle v. New Hampshire Med. Malpractice Joint Underwriting Assoc., Case No. 217-2010-CV-00294, New Hampshire Superior Court, Merrimack County (2012))
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" Submitted expert witness declaration and deposed concerning class certification issues in nationwide fraud class action (CVS Caremark Corp. v. Lauriello, 175 So. 3d 596, 610 (Ala. 2014))
" Submitted expert witness declaration in securities class action concerning value of proxy disclosures achieved through settlement and appropriate level for fee award (Rational Strategies Fund v. Jhung, Case No. BC 460783, California Superior Court, Los Angeles County (2012))
" Submitted an expert witness report and deposed concerning legal malpractice in the defense of a class action lawsuit (KB Home v. K&L Gates, LLP, Case No. BC484090, California Superior Court, Los Angeles County (2011))
" Retained as expert witness on choice of law issues implicated by proposed nationwide class certification (Simon v. Metropolitan Property and Cas. Co., Case No. CIV-2008-1008-W, U.S. Dist. Ct., W.D. Ok. (2011))
" Retained, deposed, and testified in court as expert witness in fee-related dispute (Blue, et al. v. Hill,Case No. 3:10-CV-02269-O-BK, U.S. Dist. Ct., N.D. Tex. (2011))
" Retained as an expert witness in fee-related dispute (Furth v. Furth, Case No. C11-00071-DMR, U.S. Dist. Ct., N.D. Cal. (2011))
" Submitted expert witness declaration concerning interim fee application in complex environmental class action (DeLeo v. Bouchard Transportation, Civil Action No. PLCV2004-01166-B, Massachusetts Superior Court (2010))
" Retained as an expert witness on common benefit fee issues in MDL proceeding in federal court (In re Vioxx Products Liability Litigation, MDL Docket No. 1657, U.S. Dist. Ct., E.D. La. (2010))
" Submitted expert witness declaration concerning fee application in securities case (In re Amicas Inc. Shareholder Litigation, Civil Action No. 10-412BLS2, Massachusetts Superior Court (2010))
" Submitted an expert witness declaration concerning fee entitlement and enhancement in non-common fund class action settlement (Parkinson v. Hyundai Motor America, 796 F.Supp.2d 1160 (C.D. Cal. 2010))
" Submitted an expert witness declaration concerning class action fee allocation among attorneys (Salvas v. Wal-Mart, Civil Action No. 01-03645, Massachusetts Superior Court (2010))
" Submitted an expert witness declaration concerning settlement approval and fee application in wage and hour class action settlement (Salvas v. Wal-Mart, Civil Action No. 01-03645, MassachusettsSuperior Court (2010))
" Submitted an expert witness declaration concerning objectors= entitlement to attorney=s fees (Rodriguez v. West Publishing Corp., Case No. CV-05-3222, U.S. Dist. Ct., C.D. Cal. (2010))
" Submitted an expert witness declaration concerning fairness of settlement provisions and processes
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(White v. Experian Inform. Solutions, Inc., No. 05-CV-1070, U.S. Dist. Ct., C.D. Cal. (2010), relied upon in Radcliffe v. Experian Inform. Solutions Inc., 715 F.3d 1157, 1166 (9th Cir. 2013))
" Submitted an expert witness declaration concerning attorney=s fees in class action fee dispute (Elihu v. Toshiba America Information Systems, Inc., Case No. BC328566, California Superior Court, Los Angeles County (2009), discused in Ellis v. Toshiba America Information Systems, Inc., 218 Cal. App. 4th 853, 160 Cal. Rptr. 3d 557 (2d Dist. 2013)) " Submitted an expert witness declaration concerning common benefit fee in MDL proceeding in federal court (In re Genetically Modified Rice Litigation, MDL Docket No. 1811, U.S. Dist. Ct., E.D. Mo. (2009))
" Submitted an expert witness declaration concerning settlement approval and fee application in national MDL class action proceeding (In re Wal-Mart Wage and Hour Employment Practices Litigation, MDL Docket No.1735, U.S. Dist. Ct., D. Nev. (2009))
" Submitted an expert witness declaration concerning fee application in national MDL class action proceeding (In re Dept. of Veterans Affairs (VA) Data Theft Litigation, MDL Docket No. 1796, U.S. Dist. Ct., D. D.C. (2009))
" Submitted an expert witness declaration concerning common benefit fee in mass tort MDL proceeding in federal court (In re Kugel Mesh Products Liability Litigation, MDL Docket No. 1842, U.S. Dist. Ct., D. R.I. (2009))
" Submitted an expert witness declaration and supplemental declaration concerning common benefit fee in consolidated mass tort proceedings in state court (In re All Kugel Mesh Individual Cases, Master Docket No. PC-2008-9999, Superior Court, State of Rhode Island (2009))
" Submitted an expert witness declaration concerning fee application in wage and hour class action (Warner v. Experian Information Solutions, Inc., Case No. BC362599, California Superior Court, Los Angeles County (2009))
" Submitted an expert witness declaration concerning process for selecting lead counsel in complex MDL antitrust class action (In re Rail Freight Fuel Surcharge Antitrust Litigation, MDL Docket No. 1869, U.S. Dist. Ct., D. D.C. (2008))
" Retained, deposed, and testified in court as expert witness on procedural issues in complex class action (Hoffman v. American Express, Case No. 2001-022881, California Superior Court, Alameda County (2008))
" Submitted an expert witness declaration concerning fee application in wage and hour class action(Salsgiver v. Yahoo! Inc., Case No. BC367430, California Superior Court, Los Angeles County (2008))
" Submitted an expert witness declaration concerning fee application in wage and hour class action (Voight v. Cisco Systems, Inc., Case No. 106CV075705, California Superior Court, Santa Clara County (2008))
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" Retained and deposed as expert witness on fee issues in attorney fee dispute (Stock v. Hafif, Case No. KC034700, California Superior Court, Los Angeles County (2008))
" Submitted an expert witness declaration concerning fee application in consumer class action (Nicholas v. Progressive Direct, Civil Action No. 06-141-DLB, U.S. Dist. Ct., E.D. Ky. (2008))
" Submitted expert witness declaration concerning procedural aspects of national class action arbitration (Johnson v. Gruma Corp., JAMS Arbitration No. 1220026252 (2007))
" Submitted expert witness declaration concerning fee application in securities case (Drulias v. ADE Corp., Civil Action No. 06-11033 PBS, U.S. Dist. Court, D. Mass. (2007))
" Submitted expert witness declaration concerning use of expert witness on complex litigation matters in criminal trial (U.S. v. Gallion, et al., No. 07-39 (WOB) U.S. Dist. Court, E. D. Ky. (2007))
" Retained as expert witness on fees matters (Heger v. Attorneys= Title Guaranty Fund, Inc., No. 03-L-398, Illinois Circuit Court, Lake County, IL (2007))
" Retained as expert witness on certification in statewide insurance class action (Wagner v. Travelers Property Casualty of America, No. 06CV338, Colorado District Court, Boulder County, CO (2007))
" Testified as expert witness concerning fee application in common fund shareholder derivative case (In Re Tenet Health Care Corporate Derivative Litigation, Case No. 01098905, California Superior Court, Santa Barbara Cty, CA (2006))
" Submitted expert witness declaration concerning fee application in common fund shareholder derivative case (In Re Tenet Health Care Corp. Corporate Derivative Litigation, Case No. CV-03-11 RSWL, U.S. Dist. Court, C.D. Cal. (2006))
" Retained as expert witness as to certification of class action (Canova v. Imperial Irrigation District, Case No. L-01273, California Superior Court, Imperial Cty, CA (2005))
" Retained as expert witness as to certification of nationwide class action (Enriquez v. Edward D. Jones & Co., Missouri Circuit Court, St. Louis, MO (2005))
" Submitted expert witness declaration on procedural aspects of international contract litigation filed in court in Korea (Estate of Wakefield v. Bishop Han & Jooan Methodist Church (2002))
" Submitted expert witness declaration as to contested factual matters in case involving access to a public forum (Cimarron Alliance Foundation v. The City of Oklahoma City, Case No. Civ. 2001-1827-C, U.S. Dist. Ct., W.D. Ok. (2002))
" Submitted expert witness declaration concerning reasonableness of class certification, settlement, and fees (Baird v. Thomson Elec. Co., Case No. 00-L-000761, Cir. Ct., Mad. Cty, IL (2001))
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Expert Consultant
" Retained as an expert consultant on class certification issues (In re: Facebook, Inc., IPO Securities and Derivative Litigation, No. 1:12-md-2389, U.S. Dist. Ct., S.D.N.Y. (2015))
" Provided expert consulting services to lead class counsel on class certification issues in nationwide class action (2015)
" Retained by a Fortune 100 Company as an expert consultant on class certification issues
" Retained as an expert consultant on class action and procedure related issues (Lange et al v. WPX Energy Rocky Mountain LLC, Case No. #: 2:13-cv-00074-ABJ, U.S. Dist. Ct., D. Wy. (2013))
" Retained as an expert consultant on class action and procedure related issues (Flo & Eddie, Inc., v. Sirius XM Radio, Inc., Case No. CV 13-5693, U.S. Dist. Court, C.D. Cal. (2013))
" Served as an expert consultant on substantive and procedural issues in challenge to legality of credit card late and over-time fees (In Re Late Fee and Over-Limit Fee Litigation, 528 F.Supp.2d 953 (N.D. Cal. 2007), aff=d, 741 F.3d 1022 (9th Cir. 2014))
" Retained as an expert on Class Action Fairness Act (CAFA) removal issues and successfully briefed and argued remand motion based on local controversy exception (Trevino, et al. v. Cummins, et al.,No. 2:13-cv-00192-JAK-MRW, U.S. Dist. Ct., C. D. Cal. (2013))
" Retained as an expert consultant on class action related issues by consortium of business groups (In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL No. 2179, U.S. Dist. Court, E.D. La. (2012))
" Provided presentation on class certification issues in nationwide medical monitoring classes (In re: National Football League Players= Concussion Injury Litigation, MDL No. 2323, Case No. 2:12-md-02323-AB, U.S. Dist. Ct., E.D. Pa. (2012))
" Retained as an expert consultant on class action related issues in mutli-state MDL consumer class action (In re Sony Corp. SXRD Rear Projection Television Marketing, Sales Practices & Prod. Liability Litig., MDL No. 2102, U.S. Dist. Court, S.D. N.Y. (2009))
" Retained as an expert consultant on class action certification, manageability, and related issues in mutli-state MDL consumer class action (In re Teflon Prod. Liability Litig., MDL No. 1733, U.S. Dist. Court, S.D. Iowa (2008))
" Retained as an expert consultant/co-counsel on certification, manageability, and related issues in nationwide anti-trust class action (Brantley v. NBC Universal, No.- CV07-06101 CAS (VBKx), U.S. Dist. Court, C.D. Cal. (2008))
" Retained as an expert consultant on class action issues in complex multi-jurisdictional construction dispute (Antenucci, et al., v. Washington Assoc. Residential Partner, LLP, et al., Civil No. 8-04194, U.S. Dist. Court, E.D. Pa. (2008))
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" Retained as an expert consultant on complex litigation issues in multi-jurisdictional class action litigation (McGreevey v. Montana Power Company, No. 08-35137, U.S. Court of Appeals for the Ninth Circuit)
" Retained as an expert consultant on class action and attorney fee issues in nationwide consumer class action (Figueroa v. Sharper Image, 517 F.Supp.2d 1292 (S.D. Fla. 2007))
" Retained as an expert consultant on attorney=s fees issue in complex class action case (Natural Gas Anti-Trust Cases Coordinated Proceedings, D049206, California Court of Appeals, Fourth District (2007))
" Retained as an expert consultant on remedies and procedural matters in complex class action (Sunscreen Cases, JCCP No. 4352, California Superior Court, Los Angeles County (2006))
" Retained as an expert consultant on complex preclusion questions in petition for review to California Supreme Court (Mooney v. Caspari, Supreme Court of California (2006))
" Retained as an expert consultant on attorney fee issues in complex common fund case (In Re DietDrugs (Phen/Fen) Products Liability Litigation, U.S. Dist. Court, E. D. Pa. (2006))
" Retained as an expert consultant on procedural matters in series of complex construction lien cases (In re Venetian Lien Litigation, Supreme Court of the State of Nevada (2005-2006))
" Served as an expert consultant on class certification issues in countywide class action (Beauchamp v. Los Angeles Cty. Metropolitan Transp. Authority, Case No. CV-98-00402-CBM, U.S. Dist. Ct., C.D. Cal.)
" Served as an expert consultant on class certification issues in state-wide class action (Williams v. State of California, Case No. 312-236, Cal. Superior Court, San Francisco)
" Served as an exert consultant on procedural aspects of complex welfare litigation (Allen v. Anderson, U.S. Dist. Ct., C.D. Cal., appeal dism. as moot, 199 F.3d 1331 (9th Cir. 1999))
Ethics Opinions
" Provided expert opinion on issues of professional ethics in complex litigation matter (In re Professional Responsibility Inquiries (20013))
" Provided expert opinion on issues of professional ethics in complex litigation matter (In re Professional Responsibility Inquiries (20011))
" Provided expert opinion on issues of professional ethics in implicated by nationwide class action practice (In re Professional Responsibility Inquiries (2010))
" Provided expert opinion on issues of professional ethics implicated by complex litigation matter (In re Professional Responsibility Inquiries (2010))
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" Provided expert opinion on issues of professional ethics in complex litigation matter (In re Professional Responsibility Inquiries (2007))
Publications on Class Actions & Procedure
" NEWBERG ON CLASS ACTIONS (sole author of supplements to 4th edition since 2008 and of 5th edition (2011-2016))
" Profit for Costs, 63 DEPAUL L. REV. 587 (2014) (with Morris A. Ratner)
" Procedure and Society: An Essay for Steve Yeazell, 61 U.C.L.A. REV. DISC. 136 (2013)
" Supreme Court Round-Up B Part II, 5 CLASS ACTION ATTORNEY FEE DIGEST 331 (September 2011)
" Supreme Court Round-Up B Part I, 5 CLASS ACTION ATTORNEY FEE DIGEST 263 (July-August 2011)
" Class Action Fee Award Procedures, 5 CLASS ACTION ATTORNEY FEE DIGEST 3 (January 2011)
" Benefits of Class Action Lawsuits, 4 CLASS ACTION ATTORNEY FEE DIGEST 423 (November 2010)
" Contingent Fees for Representing the Government: Developments in California Law, 4 CLASS ACTION ATTORNEY FEE DIGEST 335 (September 2010)
" Supreme Court Roundup, 4 CLASS ACTION ATTORNEY FEE DIGEST 251 (July 2010)
" SCOTUS Okays Performance Enhancements in Federal Fee Shifting Cases B At Least In Principle, 4 CLASS ACTION ATTORNEY FEE DIGEST 135 (April 2010)
" The Puzzling Persistence of the AMega-Fund@ Concept, 4 CLASS ACTION ATTORNEY FEE DIGEST 39 (February 2010)
" 2009: Class Action Fee Awards Go Out With A Bang, Not A Whimper, 3 CLASS ACTION ATTORNEY FEE DIGEST 483 (December 2009)
" Privatizing Government Litigation: Do Campaign Contributors Have An Inside Track?, 3 CLASS ACTION ATTORNEY FEE DIGEST 407 (October 2009)
" Supreme Court Preview, 3 CLASS ACTION ATTORNEY FEE DIGEST 307 (August 2009)
" Supreme Court Roundup, 3 CLASS ACTION ATTORNEY FEE DIGEST 259 (July 2009)
" What We Now Know About How Lead Plaintiffs Select Lead Counsel (And Hence Who Gets Attorney’s Fees!) in Securities Cases, 3 CLASS ACTION ATTORNEY FEE DIGEST 219 (June 2009)
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" Beware Of Ex Ante Incentive Award Agreements, 3 CLASS ACTION ATTORNEY FEE DIGEST 175 (May 2009)
" On What a ACommon Benefit Fee@ Is, Is Not, and Should Be, 3 CLASS ACTION ATTORNEY FEE DIGEST 87 (March 2009)
" 2009: Emerging Issues in Class Action Fee Awards, 3 CLASS ACTION ATTORNEY FEE DIGEST 3 (January 2009)
" 2008: The Year in Class Action Fee Awards, 2 CLASS ACTION ATTORNEY FEE DIGEST 465 (December 2008)
" The Largest Fee Award B Ever!, 2 CLASS ACTION ATTORNEY FEE DIGEST 337 (September 2008)
" Why Are Fee Reductions Always 50%?: On The Imprecision of Sanctions for Imprecise Fee Submissions, 2 CLASS ACTION ATTORNEY FEE DIGEST 295 (August 2008)
" Supreme Court Round-Up, 2 CLASS ACTION ATTORNEY FEE DIGEST 257 (July 2008)
" Fee-Shifting For Wrongful Removals: A Developing Trend?, 2 CLASS ACTION ATTORNEY FEE DIGEST 177 (May 2008)
" You Cut, I Choose: (Two Recent Decisions About) Allocating Fees Among Class Counsel, 2 CLASS ACTION ATTORNEY FEE DIGEST 137 (April 2008)
" Why The Percentage Method?, 2 CLASS ACTION ATTORNEY FEE DIGEST 93 (March 2008)
" Reasonable Rates: Time To Reload The (Laffey) Matrix, 2 CLASS ACTION ATTORNEY FEE DIGEST 47 (February 2008)
" The ALodestar Percentage:@ A New Concept For Fee Decisions?, 2 CLASS ACTION ATTORNEY FEE DIGEST 3 (January 2008)
" Class Action Practice Today: An Overview, in ABA SECTION OF LITIGATION, CLASS ACTIONS TODAY 4 (2008)
" Shedding Light on Outcomes in Class Actions, in CONFIDENTIALITY, TRANSPARENCY, AND THE U.S. CIVIL JUSTICE SYSTEM 20-59 (Joseph W. Doherty, Robert T. Reville, and Laura Zakaras eds. 2008) (with Nicholas M. Pace)
" Finality in Class Action Litigation: Lessons From Habeas, 82 N.Y.U. L. REV. 791 (2007)
" The American Law Institute=s New Approach to Class Action Objectors= Attorney’s Fees, 1 CLASS ACTION ATTORNEY FEE DIGEST 347 (November 2007)
" The American Law Institute=s New Approach to Class Action Attorney’s Fees, 1 CLASS ACTION ATTORNEY FEE DIGEST 307 (October 2007)
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" AThe Lawyers Got More Than The Class Did!@: Is It Necessarily Problematic When Attorneys Fees Exceed Class Compensation?, 1 CLASS ACTION ATTORNEY FEE DIGEST 233 (August 2007)
" Supreme Court Round-Up, 1 CLASS ACTION ATTORNEY FEE DIGEST 201 (July 2007)
" On The Difference Between Winning and Getting Fees, 1 CLASS ACTION ATTORNEY FEE DIGEST 163 (June 2007)
" Divvying Up The Pot: Who Divides Aggregate Fee Awards, How, and How Publicly?, 1 CLASS ACTION ATTORNEY FEE DIGEST 127 (May 2007)
" On Plaintiff Incentive Payments, 1 CLASS ACTION ATTORNEY FEE DIGEST 95 (April 2007)
" Percentage of What?, 1 CLASS ACTION ATTORNEY FEE DIGEST 63 (March 2007)
" Lodestar v. Percentage: The Partial Success Wrinkle, 1 CLASS ACTION ATTORNEY FEE DIGEST 31 (February 2007)(with Alan Hirsch)
" The Fairness Hearing: Adversarial and Regulatory Approaches, 53 U.C.L.A. L. REV. 1435 (2006) (excerpted in THE LAW OF CLASS ACTIONS AND OTHER AGGREGATE LITIGATION 447-449 (Richard A. Nagareda ed., 2009))
" Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action, 74 U.M.K.C. L. REV. 709 (2006)
" On What a APrivate Attorney General@ Is B And Why It Matters, 57 VAND. L. REV. 2129(2004) (excerpted in COMPLEX LITIGATION 63-72 (Kevin R. Johnson, Catherine A. Rogers & John Valery White eds., 2009)).
" The Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865 (2002) (selected for the Stanford/Yale Junior Faculty Forum, June 2001)
" A Transactional Model of Adjudication, 89 GEORGETOWN L.J. 371 (2000)
" The Myth of Superiority, 16 CONSTITUTIONAL COMMENTARY 599 (1999)
" Divided We Litigate: Addressing Disputes Among Clients and Lawyers in Civil Rights Campaigns, 106 YALE L. J. 1623 (1997) (excerpted in COMPLEX LITIGATION 120-123 (1998))
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Selected Presentations
" Class Action Update, MDL Transferee Judges Conference, Palm Beach, Florida, November 1, 2016 (forthcoming)
" Judicial Power and its Limits in Multidistrict Litigation, American Law Institute, Young Scholars Medal Conference, The Future of Aggregate Litigation, New York University School of Law, New York, New York, April 12, 2016
" Class Action Update & Attorneys’ Fees Issues Checklist, MDL Transferee Judges Conference, Palm Beach, Florida, October 28, 2015
" Class Action Law, 2015 Ninth Circuit/Federal Judicial Center Mid-Winter Workshop, Tucson, Arizona, January 26, 2015
" Recent Developments in Class Action Law, MDL Transferee Judges Conference, Palm Beach, Florida, October 29, 2014
" Recent Developments in Class Action Law, MDL Transferee Judges Conference, Palm Beach, Florida, October 29, 2013
" Class Action Remedies, ABA 2013 National Institute on Class Actions, Boston, Massachusetts, October 23, 2013
" The Public Life of the Private Law: The Logic and Experience of Mass Litigation B Conference in Honor of Richard Nagareda, Vanderbilt Law School, Nashville, Tennessee, September 27-28, 2013
" Brave New World: The Changing Face of Litigation and Law Firm Finance, Clifford Symposium 2013, DePaul University College of Law, Chicago, Illinois, April 18-19, 2013
" Twenty-First Century Litigation: Pathologies and Possibilities: A Symposium in Honor of Stephen Yeazell, UCLA Law Review, UCLA School of Law, Los Angeles, California, January 24-25, 2013
" Litigation=s Mirror: The Procedural Consequences of Social Relationships, Sidley Austin Professor of Law Chair Talk, Harvard Law School, Cambridge, Massachusetts, October 17, 2012
" Alternative Litigation Funding (ALF) in the Class Action Context B Some Initial Thoughts, Alternative Litigation Funding: A Roundtable Discussion Among Experts, George Washington University Law School, Washington, D.C., May 2, 2012
" The Operation of Preclusion in Multidistrict Litigation (MDL) Cases, Brooklyn Law School Faculty Workshop, Brooklyn, New York, April 2, 2012
" The Operation of Preclusion in Multidistrict Litigation (MDL) Cases, Loyola Law School Faculty Workshop, Los Angeles, California, February 2, 2012
A-13 DOCUMENT 3311
W.B. Rubenstein Resume Page 14 - July 2016
" Recent Developments in Class Action Law and Impact on MDL Cases, MDL Transferee Judges Conference, Palm Beach, Florida, November 2, 2011
" Recent Developments in Class Action Law, MDL Transferee Judges Conference, Palm Beach, Florida, October 26, 2010
" A General Theory of the Class Suit, University of Houston Law Center Colloquium, Houston, Texas, February 3, 2010
" Unpacking The ARigorous Analysis@ Standard, ALI-ABA 12th Annual National Institute on Class Actions, New York, New York, November 7, 2008
" The Public Role in Private Law Enforcement: Visions from CAFA, University of California (Boalt Hall) School of Law Civil Justice Workshop, Berkeley, California, February 28, 2008
" The Public Role in Private Law Enforcement: Visions from CAFA, University of Pennsylvania Law Review Symposium, Philadelphia, Pennsylvania, Dec. 1, 2007
" Current CAFA Consequences: Has Class Action Practice Changed?, ALI-ABA 11th Annual National Institute on Class Actions, Chicago, Illinois, October 17, 2007
" Using Law Professors as Expert Witnesses in Class Action Lawsuits, ALI-ABA 10th Annual National Institute on Class Actions, San Diego, California, October 6, 2006
" Three Models for Transnational Class Actions, Globalization of Class Action Panel, International Law Association 2006 Conference, Toronto, Canada, June 6, 2006
" Why Create Litigation?: A Positive Externalities Theory of the Small Claims Class Action, UMKC Law Review Symposium, Kansas City, Missouri, April 7, 2006
" Marks, Bonds, and Labels: Three New Proposals for Private Oversight of Class Action Settlements, UCLA Law Review Symposium, Los Angeles, California, January 26, 2006
" Class Action Fairness Act, Arnold & Porter, Los Angeles, California, December 6, 2005
" ALI-ABA 9th Annual National Institute on Class Actions, Chicago, Illinois, September 23, 2005
" Class Action Fairness Act, UCLA Alumni Assoc., Los Angeles, California, September 9, 2005
" Class Action Fairness Act, Thelen Reid & Priest, Los Angeles, California, May 12, 2005
" Class Action Fairness Act, Sidley Austin, Los Angeles, California, May 10, 2005
" Class Action Fairness Act, Munger, Tolles & Olson, Los Angeles, California, April 28, 2005
" Class Action Fairness Act, Akin Gump Strauss Hauer Feld, Century City, CA, April 20, 2005
A-14 DOCUMENT 3311
W.B. Rubenstein Resume Page 15 - July 2016
SELECTED OTHER LITIGATION EXPERIENCE
United States Supreme Court
" Co-counsel on petition for writ of certiorari concerning application of the voluntary cessation doctrine to government defendants (Rosebrock v. Hoffman, 135 S. Ct.1893 (2015))
" Authored amicus brief filed on behalf of civil procedure and complex litigation law professors concerning the importance of the class action lawsuit (AT&T Mobility v. Concepcion, No. 09-893, 131 S. Ct. 1740 (2011))
" Co-counsel in constitutional challenge to display of Christian cross on federal land in California=s Mojave preserve (Salazar v. Buono, 130 S. Ct. 1803 (2010))
" Co-authored amicus brief filed on behalf of constitutional law professors arguing against constitutionality of Texas criminal law (Lawrence v. Texas, 539 U.S. 558 (2003))
" Co-authored amicus brief on scope of Miranda (Illinois v. Perkins, 496 U.S. 292 (1990))
Attorney’s Fees
" Appointed by the United States Court of Appeals for the Second Circuit to argue for affirmance of district court fee decision in complex securities class action (In re Indymac Mortgage-Backed Securities Litigation, Civ. 15-1310 (2d Cir. 2015)).
" Co-authored amicus brief on proper approach to attorney’s fees in common fund cases (Laffitte v. Robert Half International, Case: S222996, Supreme Court of California (2016))
Consumer Class Action
" Co-counsel in challenge to antenna-related design defect in Apple=s iPhone4 (Dydyk v. Apple Inc., 5:10-cv-02897-HRL, U.S. Dist. Court, N.D. Cal.) (complaint filed June 30, 2010)
" Co-class counsel in $8.5 million nationwide class action settlement challenging privacy concerns raised by Google=s Buzz social networking program (In re Google Buzz Privacy Litigation, 5:10-cv-00672-JW, U.S. Dist. Court, N.D. Cal.) (amended final judgment June 2, 2011)
Disability
" Co-counsel in successful ADA challenge ($500,000 jury verdict) to the denial of health care in emergency room (Howe v. Hull, 874 F. Supp. 779, 873 F. Supp 72 (N.D. Ohio 1994))
Employment
" Co-counsel in challenges to scope of family benefit programs (Ross v. Denver Dept. of Health, 883 P.2d 516 (Colo. App. 1994)); (Phillips v. Wisc. Personnel Com=n, 482 N.W.2d 121 (Wisc. 1992))
A-15 DOCUMENT 3311
W.B. Rubenstein Resume Page 16 - July 2016
Equal Protection
" Co-counsel in (state court phases of) successful challenge to constitutionality of a Colorado ballot initiative, Amendment 2 (Evans v. Romer, 882 P.2d 1335 (Colo. 1994))
" Co-counsel (and amici) in challenges to rules barring military service by gay people (Able v. United States, 44 F.3d 128 (2d Cir. 1995); Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc))
" Co-counsel in challenge to the constitutionality of the Attorney General of Georgia=s firing of staff attorney (Shahar v. Bowers, 120 F.3d 211 (11th Cir. 1997))
Fair Housing
" Co-counsel in successful Fair Housing Act case on behalf of group home (Hogar Agua y Vida En el Desierto v. Suarez-Medina, 36 F.3d 177 (1st Cir. 1994))
Family Law
" Co-counsel in challenge to constitutionality of Florida law limiting adoption (Cox v. Florida Dept. of Health and Rehab. Srvcs., 656 So.2d 902 (Fla. 1995))
" Co-authored amicus brief in successful challenge to Hawaii ban on same-sex marriages (Baehr v. Lewin, 852 P.2d 44 (Haw. 1993))
First Amendment
" Co-counsel in successful challenge to constitutionality of Alabama law barring state funding foruniversity student groups (GLBA v. Sessions, 930 F.Supp. 1492 (M.D. Ala. 1996))
" Co-counsel in successful challenge to content restrictions on grants for AIDS education materials (Gay Men=s Health Crisis v. Sullivan, 792 F.Supp. 278 (S.D.N.Y. 1992))
Landlord / Tenant
" Lead counsel in successful challenge to rent control regulation (Braschi v. Stahl Associates Co., 544 N.E.2d 49 (N.Y. 1989))
Police
" Co-counsel in case challenging DEA brutality (Anderson v. Branen, 27 F.3d 29 (2nd Cir. 1994))
Racial Equality
" Co-authored amicus brief for constitutional law professors challenging constitutionality of Proposition 209 (Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997))
A-16 DOCUMENT 3311
W.B. Rubenstein Resume Page 17 - July 2016
SELECTED OTHER PUBLICATIONS
Editorials
" Follow the Leaders, NEW YORK TIMES, March 15, 2005
" Play It Straight, NEW YORK TIMES, October 16, 2004
" Hiding Behind the Constitution, NEW YORK TIMES, March 20, 2004
" Toward More Perfect Unions, NEW YORK TIMES, November 20, 2003 (with Brad Sears)
" Don=t Ask, Don=t Tell. Don=t Believe It, NEW YORK TIMES, July 20, 1993
" AIDS: Illness and Injustice, WASH. POST, July 26, 1992 (with Nan D. Hunter)
BAR ADMISSIONS
" Massachusetts (2008)
" California (2004)
" District of Columbia (1987) (inactive)
" Pennsylvania (1986) (inactive)
" U.S. Supreme Court (1993)
" U.S. Court of Appeals for the First Circuit (2010)
" U.S. Court of Appeals for the Second Circuit (2015)
" U.S. Court of Appeals for the Fifth Circuit (1989)
" U.S. Court of Appeals for the Ninth Circuit (2004)
" U.S. Court of Appeals for the Eleventh Circuit (1993)
" U.S. Court of Appeals for the D.C. Circuit (1993)
" U.S. District Courts for the Central District of California (2004)
" U.S. District Court for the District of the District of Columbia (1989)
" U.S. District Court for the District of Massachusetts (2010)
" U.S. District Court for the Northern District of California (2010)
A-17 DOCUMENT 3311
EXHIBIT B DOCUMENT 3311
Johnson et al. v. Caremark, et al., Case No. CV-2003-00630 Expert Declaration of William B. Rubenstein
EXHIBIT B
Partial List of Documents Reviewed By Professor Rubenstein (other than case law and scholarship on the relevant issues)
Lauriello (and McArthur) Cases
1. Class Action Complaint (Oct. 22, 2003) 2. Defendants’ Motion to Dismiss (Jan. 15, 2004) 3. Defendants’ Memorandum of Law in Support of Their Motion to Dismiss the Complaint Pursuant to Rules 12(b)(6) and 9(b) (Jan. 15, 2004) 4. McArthur Plaintiffs’ Reply to Intervenor Lauriello’s Submission in Opposition to McArthur’s Claim That Lauriello and His Counsel Are Disqualified (Feb. 9, 2004) 5. Plaintiff’s Objection to Defendants’ Motion to Dismiss (Feb. 23, 2004) 6. Defendants’ Reply Memorandum of Law in Further Support of Their Motion to Dismiss the Complaint (Apr. 9, 2004) 7. First Amended Class Action Complaint (June 4, 2004) 8. Caremark’s Answer to First Amended Class Action Complaint (Aug. 19, 2004) 9. AIG Defendants’ Answer to First Amended Class Action Complaint (Aug. 19, 2004) 10. Plaintiff’s Motion to Appoint John Lauriello as Class Representative and to Appoint Lead Counsel (Aug. 26, 2004) 11. Order Deferring Class Issues until after Briefing (Sep. 1, 2004) 12. Defendants’ Memorandum of Law in Opposition to Plaintiff’s Proposed Bypass of Alabama Code §6-5-641’s Mandatory Class Certification Procedures (Sept. 20, 2004) 13. Plaintiff’s Reply Brief in Support of Motion to Appoint Lauriello, Etc. (Oct. 1, 2004) 14. Defendants’ Sur-Reply in Further Opposition to Plaintiff’s Proposed Bypass of Alabama Code §6-5-641’s Mandatory Class Certification Procedures (Oct. 7, 2004) 15. Order on Class Certification (Jan. 28, 2005) 16. Motion to Intervene by Frank G. McArthur et al. (Feb. 8, 2005) 17. Plaintiff’s Objection and Response to Motion to Intervene (Feb. 10, 2005) 18. Motion to Certify the Court’s Order on Class Certification for Interlocutory Appeal (Feb. 15, 2005) 19. Plaintiff’s Consolidated Objection and Response to Intervenors’ Motion to Intervene and Motion to Disqualify (Feb. 17, 2005) 20. Plaintiff’s Response in Opposition to Motion for Rule 5 Certification (Feb. 17, 2005) 21. Order on Rule 5 Certification (Feb. 23, 2005) 22. Petition for Writ of Mandamus (March 11, 2005) 23. McArthur Appeal and Motion to Stay (Mar. 30, 2005) 24. Brief of Appellants in Supreme Court of Alabama (AIG et al.) (Sept. 8, 2005)
B-1 DOCUMENT 3311
25. Brief of Appellants in Supreme Court of Alabama (McArthur) (Sept. 22, 2005) 26. Brief of Appellee Lauriello in Supreme Court of Alabama (Oct. 6, 2005) 27. Brief of Defendants-Appellees in Supreme Court of Alabama (AIG et al.) (Oct. 20, 2005) 28. Brief of Appellee Lauriello in Supreme Court of Alabama (in McArthur) (Oct. 27, 2005) 29. Reply Brief in Support of Appeal in Supreme Court of Alabama (AIG et al. (Oct. 27, 2005) 30. Reply Brief of the Appellants in Supreme Court of Alabama (McArthur) (Dec. 12, 2005) 31. Order on Petition for Writ of Mandamus (Supreme Court of Alabama) (Aug. 18, 2006) 32. Appellee Lauriello’s Brief in Support of Limited Application for Rehearing (Sept. 1, 2006) 33. Opposition of Appellants to Application for Rehearing (Sept. 15, 2006) 34. Response to Appellee Lauriello’s Limited Application for Rehearing (Sept. 15, 2006) 35. Ex parte Caremark Rx, Inc., 956 So. 2d 1117 (Ala. 2006) (Oct. 20, 2006). 36. Class Action Complaint in Intervention (Mar. 19, 2007) 37 Second Amended Class Action Complaint (May 30, 2007) 38. Caremark’s Answer to Second Amended Class Action Complaint (July 17, 2007) 39. AIG Defendants’ Answer to Second Amended Complaint (July 17, 2007) 40. Amended and Restated Class Action Complaint in Intervention (Dec. 1, 2008) 41. Plaintiffs’ Amendment to the Complaint (June 12, 2009) 42. AIG Defendants’ Answer to Amendment of Complaint (June 26, 2009) 43. Caremark’s Answer to Plaintiffs’ Amendment to the Complaint (June 26, 2009) 44. Fourth Amended Class Action Complaint (May 19, 2010) 45. AIG Defendants’ Answer to Fourth Amended Class Action Complaint (June 3, 2010) 46. John Haley Deposition Transcript (Nov. 10, 2010) 47. John Haley Deposition Transcript (Dec. 22, 2010) 48. John Somerville Deposition Transcript (Nov. 11, 2010) 49. Tim Francis Deposition Transcript (Jan. 6, 2011) 50. Lanny Vines Deposition Transcript (Mar. 22, 2011) 51. William Lerach Deposition (Jan. 27, 2012) 52. Plaintiffs’ Brief in Support of Motion for Class Certification (May 4, 2012) 53. Defendants’ Pre-Hearing Memorandum of Law in Opposition to Plaintiffs’ Motion to Certify the Class and Appoint Class Representatives (May 15, 2012) 54. Defendants’ Post-Hearing Proposed Findings of Fact on Class Certification Issues (June 15, 2012) 55. Defendants’ Post-Hearing Memorandum of Law in Opposition to Plaintiffs’ Motion to Certify the Class and Appoint Class Representatives (June 15, 2012) 56. Plaintiffs’ Post-Hearing Brief in Further Support of Motion for Class Certification (June 15, 2012) 57. Order on Motion for Class Certification (Aug. 15, 2012) 58. Brief of Appellants in Supreme Court of Alabama (June 13, 2013)
B-2 DOCUMENT 3311
59. Brief of Appellees / Cross-Appellants in Supreme Court of Alabama (July 12, 2013) 60. Appellants’ Reply and Answering Brief in Supreme Court of Alabama (Aug. 9, 2013) 61. Cross-Appellants’ Reply Brief in Supreme Court of Alabama (Aug. 30, 2013) 62. CVS Caremark Corp. v. Lauriello, 175 So. 3d 596 (Ala. 2014) (Sept. 12, 2014) 63. Appellants’ Application for Rehearing (Sept. 26, 2014) 64. Brief of Appellees Opposing Application for Rehearing (Oct. 9, 2014) 65. Appellants’ Reply in Support of Their Application for Rehearing 66. Fifth Amended Class Action Complaint (Mar. 31, 2015) 67. Sixth Amended Class Action Complaint (Apr. 16, 2015) 68. AIG Defendants’ Answer to Sixth Amended Class Action Complaint (Apr. 30, 2015) 69. CVS Health’s Answer to Sixth Amended Class Action Complaint (May 1, 2016) 70. Defendants’ Motion to Conduct Absent Class Member Discovery and Incorporated Memorandum of Law (May 1, 2015) 71. Plaintiffs’ Response in Opposition to Defendants’ Motion to Conduct Absent Class Member Discovery (May 8, 2015) 72. Defendants’ Reply in Support of Their Motion to Conduct Absent Class Member Discovery (May 12, 2015) 73. Order on Motion to Conduct Absent Class Member Discovery (May 14, 2015) 74. Plaintiffs’ Motion to Modify Order re Absent Class Member Discovery (May 15, 2015) 75. Order Modifying Order re Absent Class Member Discovery (May 18, 2015) 76. Order Granting Plaintiffs’ Motion to Vacate or Modify Order re Absent Class Member Discovery (May 21, 2015) 77. Defendants’ Motion to Reconsider Orders re Absent Class Member Discovery (May 21, 2015) 78. Plaintiffs’ Response to Defendants’ Motion to Reconsider Orders re Absent Class Member Discovery (May 28, 2015) 79. Defendants’ Petition for a Writ of Mandamus (June 25, 2015) 80. Order Denying Petition for Writ of Mandamus (July 30, 2015) 81. Plaintiff Class’s Motion for Partial Summary Judgment as to Liability (Aug. 28, 2015) 82. Defendants’ Cross-Motion for Summary Judgment and Memorandum of Law in Support of Cross-Motion and in Opposition to Class’s Motion (Oct. 8, 2015) 83. Defendants’ Motion to Disqualify John Haley et al. and the Law Firms of Hare, Wynn, Newell & Newton and Francis, LLC (Oct. 16, 2015) 84. Plaintiff Class’s Combined Partial Summary Judgment Brief and Reply Brief and Response to Cross-Motion (Oct. 29, 2015) 85. Defendants’ Counterstatement to Plaintiffs’ Statement of Additional Facts (Nov. 6, 2015) 86. Defendants’ Reply in Support of Cross-Motion for Summary Judgment (Nov. 11, 2015) 87. Defendants’ Supplemental Opposition to Plaintiffs’ Class Motion for Partial Summary Judgment (Nov. 11, 2015)
B-3 DOCUMENT 3311
88. Plaintiff Class’s Response in Opposition to Defendants’ Motion to Disqualify John Haley et al. and the Law Firms of Hare, Wynn, Newell & Newton and Francis, LLC (Nov. 12, 2015) 89. Plaintiff Class’s Motion to Strike Caremark’s Brief and Evidentiary Filings (Nov. 12, 2015) 90. Order Granting in Part Class’s Motion for Partial Summary Judgment (Nov. 24, 2015) 91. Order Denying Defendants’ Motion for Summary Judgment (Nov. 24, 2015) 92. Order Denying Defendants’ Motion to Disqualify (Nov. 24, 2015) 93. Defendants’ Motion for Partial Summary Judgment with Respect to the Proper Measure of Damages (Jan. 13, 2016) 94. Defendants’ Motion for Summary Judgment as to All Claims (Jan. 25, 2016) 95. Defendants’ Motion for Summary Judgment on the Basis of SLUSA Preclusion (Jan. 25, 2016) 96. Defendants’ Motion for Summary Judgment on Suppression Claim – Litigation Privilege (Jan. 25, 2016) 97. Defendants’ Motion for Partial Summary Judgment re Misrepresentation Claim (Jan. 25, 2016) 98. Defendants’ Motion for Summary Judgment re Suppression Claim (Jan. 25, 2016) 99. Defendants’ Motion for Partial Summary Judgment with Respect to Claims of Class Members Who Did Not Submit Claims in the Securities Litigation (Jan. 25, 2016) 100. Plaintiff Class’s Response to Defendants’ Motion for Summary Judgment as to All Claims (Feb. 8, 2016) 101. Plaintiff Class’s Response to Defendants’ Motion for Partial Summary Judgment re Misrepresentation Claim (Feb. 8, 2016) 102. Plaintiff Class’s Response to Defendants’ Motion for Partial Summary Judgment with Respect to the Proper Measure of Damages (Feb. 8, 2016) 103. Plaintiff Class’s Response to Defendants’ Motion for Summary Judgment on the Basis of SLUSA Preclusion (Feb. 8, 2016) 104. Plaintiff Class’s Response to Defendants’ Motion for Summary Judgment re Suppression Claim – Litigation Privilege Issue (Feb. 8, 2016) 105. Plaintiff Class’s Response to Defendants’ Motion for Summary Judgment re Suppression Claim – Contract Issue (Feb. 8, 2016) 106. Plaintiff Class’s Response to Defendants’ Motion for Partial Summary Judgment with Respect to Claims of Class Members Who Did Not Submit Claims in the Securities Litigation (Feb. 8, 2016) 107. Order Denying Defendants’ Motion for Summary Judgment as to All Claims (Feb. 16, 2016) 108. Order Denying Defendants’ Motion for Partial Summary Judgment with Respect to Claims of Class Members Who Did Not Submit Claims in the Securities Litigation (Feb. 16, 2016)
B-4 DOCUMENT 3311
109. Order Denying Defendants’ Motion for Partial Summary Judgment with Respect to the Proper Measure of Damages (Feb. 16, 2016) 110. Order Denying Defendants’ Motion for Partial Summary Judgment re Misrepresentation Claim (Feb. 16, 2016) 111. Order Denying Defendants’ Motion for Summary Judgment re Suppression Claim (Based upon Litigation Privilege) (Feb. 16, 2016) 112. Order Denying Defendants’ Motion for Summary Judgment on the Basis of SLUSA Preclusion (Feb. 16, 2016) 113. Order Denying Defendants’ Motion for Summary Judgment re Suppression Claim (Feb. 16, 2016) 114. Defendants’ Motion to Reconsider, or in the Alternative, to Certify to the Alabama Supreme Court (Feb. 26, 2016) 115. Defendants’ Motion for Recusal (Feb. 26, 2016) 116. Plaintiff Class’s Response in Opposition to Motion for Recusal (Feb. 28, 2016) 117. Order Denying Defendants’ Motion for Recusal (Feb. 29, 2016) 118. Plaintiff Class’s Response to Defendants’ Motion to Reconsider Summary Judgment Order (Mar. 2, 2016) 119. Defendants’ Reply in Further Support of Their Motion to Reconsider, or in the Alternative, to Certify to the Alabama Supreme Court (Mar. 8, 2016) 120. Plaintiff Class’s Sur-Reply to Defendants’ Motion to Reconsider (Mar. 9, 2016) 121. Defendant Caremark’s Renewed Motion for Recusal (Mar. 9, 2016) 122. Defendant Caremark’s Notice of Filing Affidavit of Leslie W. Abramson in Support of Renewed Motion for Recusal (Mar. 10, 2016) 123. Order Denying Renewed Motion for Recusal (Mar. 11, 2016) 124. Order Denying Defendants’ Motion to Reconsider (Mar. 11, 2016) 125. Stipulation and Agreement of Settlement (May 27, 2016) 126. Motion for Preliminary Approval of Proposed Class Action Settlement (May 28, 2016) 127. Order Preliminarily Approving Settlement and Providing for Notices to the Class (June 1, 2016)
Medpartners Security Litigations
128. Lauriello Complaint (Jan. 9, 1998) 129. Schachter – First Request for Production of Documents to Defendants (Feb. 2, 1998) 130. Schacter – Defs’ Response to Pl’s First Request for Prod. of Documents (Mar. 12, 1998) 131. Griffin – Plaintiff’s Motion to Compel Discovery (Aug. 20, 1998) 132. MedPartners New Release (Dec. 17, 1998) 133. Pages from MedPartners 1998 Annual Report (10-K Filings) 134. Caremark Rx Inc - 10-K Filing (Dec. 31, 1998) 135. Griffin - Stipulation of Settlement (Jan. 15, 1999) 136. Griffin - Memorandum of Understanding (Jan. 15, 1999)
B-5 DOCUMENT 3311
137. Griffin - Draft Order Regarding Preliminary Approval and Notice (undated) 138. Griffin - Class Notice (May 3, 1999) 139. McBride v. House/MedPartners – Tr. of Preliminary Approval Hearing (May 3, 1999) 140. Order (following Preliminary Approval Hearing) (May 10, 1999) 141. Griffin - Affidavit of Roy Welland in Support of Proposed Settlement (June 14, 1999) 142. Griffin - Affidavit of Andrew P. Campbell (in Support of Final Approval) (June 17, 1999) 143. Griffin - Affidavit of Isabel J. Griffin in Support of Proposed Settlement (June 23, 1999) 144. Griffin - Affidavit of Gene A. Marsh (in Support of Final Approval) (June 24, 1999) 145. Griffin - Affidavit of Michael P. Heitzman in Support of Prop. Settlement (July 6, 1999) 146. Griffin - Joint Affidavit of Neil L. Selinger and Steven E. Cauley in Support of the Proposed Settlement and Joint Petition for an Award of Attorneys’ Fees and Reimbursement of Expenses (June 30, 1999) 147. Griffin - Memorandum of Law in Support of Final Approval of Class Action and Derivative Settlement and Award of Attorneys’ Fees and Expenses (July 2, 1999) 148. Griffin - Memorandum of Law in Support of Final Approval of Class Action and Derivative Settlement and Award of Attorneys’ Fees and Expenses (July 6, 1999) 149. Griffin – Transcript of Final Approval Hearing (July 9, 1999) 150. Griffin – Order and Final Judgment (July 10, 1999)
B-6 DOCUMENT 3311
EXHIBIT C DOCUMENT 3311
Johnson et al. v. Caremark, et al. Case No. CV-2003-00630 Expert Declaration of William B. Rubenstein
EXHIBIT C Exemplary List of Reported Cases With Fees of 40% or More
1. Gomez v. H & R Gunlund Ranches, Inc., No. CV F 10-1163 LJO MJS, 2011 WL 5884224 (E.D. Cal. Nov. 23, 2011) (approving fee award of over 46% of a $915,000 fund, finding the fee justified because of the risk of the action, the success achieved by the attorneys, and the absence of opposition by the plaintiff class).
2. In re Ampicillin Antitrust Litig., 526 F. Supp. 494 (D.D.C. 1981) (approving attorneys’ fees representing 45% of the $7.3 million settlement fund).
3. Ranney v. Am. Airlines, No. 1:08CV137, 2016 WL 471220 (S.D. Ohio Feb. 8, 2016) (approving class counsel’s request for fees constituting 44% of a $500,000 settlement fund, finding this amount was both within the typical range for class settlements and reasonable in light of the work performed by the attorneys).
4. Bickel v. Sheriff of Whitley Cty., No. 1:08-CV-102-TLS, 2015 WL 1402018 (N.D. Ind. Mar. 26, 2015) (awarding class counsel fees of 43.7% of the $725,000 common fund settlement, finding the amount reasonable in light of the risk of non-payment risk, the market rate for attorneys working on similar cases, and the favorable outcome achieved for the class).
5. Been v. O.K. Indus., Inc., No. CIV-02-285-RAW, 2011 WL 4478766 (E.D. Okla. Aug. 16, 2011), report and recommendation adopted, No. CIV-02-285-RAW, 2011 WL 4475291 (Sept. 26, 2011) (awarding class counsel attorneys’ fees of 42% of a $15,673,892.50 common fund because of the novel legal issues the attorneys resolved over nine years of litigation, which included two appeals and a certiorari petition).
6. In re Natural Gas Anti-Trust Cases I, II, III, & IV, 2006 WL 6383836 (Cal. Super. Ct. 2006) (approving fee award of 42% of total cash settlement of $377 million, when the total value of settlement including non-cash components was estimated to equal $1.69 billion).
7. Wren v. RGIS Inventory Specialists, No. C-06-05778 JCS, 2011 WL 1230826 (N.D. Cal. Apr. 1, 2011), supplemented, No. C-06-05778 JCS, 2011 WL 1838562 (N.D. Cal. May 13, 2011) (awarding class counsel fees of just under 42% of a $27 million settlement fund in light of the significant risk of non-payment assumed by the attorneys, and their determination, experience, and skill in litigating complex legal issues).
8. Chieftain Royalty Co. v. Laredo Petroleum, Inc., No. CIV-12-1319-D, 2015 WL 2254606 (W.D. Okla. May 13, 2015) (awarding class counsel 40% of the settlement amount of $6,651,997.95, noting that such a percentage was well within the acceptable range of fees
C-1 DOCUMENT 3311
approved by Oklahoma and Colorado federal district courts in common fund cases and in line with the market rate for class counsel in similar cases).
9. Mulroy v. Nat’l Water Main Cleaning Co. of New Jersey, No. CIV.A. 12-3669 WJM, 2014 WL 7051778 (D.N.J. Dec. 12, 2014) (awarding class counsel 40% of a $250,000 settlement fund because the attorneys conducted extensive research into novel legal issues at a reasonable rate in light of their experience).
10. Patterson v. BP America Production Co., 2013 WL 8811668 (Colo. Dist. Ct. 2013) (approving fee award of 40% of $40,215,626.23 settlement fund in natural gas royalty class action, an amount the court found justified based on the risk faced by plaintiffs and the fact that the case went to trial).
11. Voggenthaler v. Al Phillips the Cleaner, Inc., 2012 WL 756969 (Nev. Dist. Ct. 2012) (approving award to class counsel of 40% of $3.8 million settlement).
12. Smith v. Upto65.com, 2008 WL 4453493 (Pa. Com. Pl. 2008) (awarding 40% of $2 million default judgment in fees to class counsel).
13. Barger v. Wal-mart Stores, Inc., 2008 WL 2958665 (Okla. Dist. Ct. 2008) (noting approvingly that counsel entered an agreement with the class representative for 40% of recovery, which the court found “not . . . offensive or otherwise avoidable for excessiveness”; court awarded $170,000 in attorneys’ fees, but did not note the size of the total fund or the percentage of the fund that the fee ultimately represented).
14. Girards v. Inter-Continental Hotels Corp., 2007 WL 4959384 (Tex. Dist. Ct. 2007) (approving a fee award of 40% of $450,000 fund, noting it only represented a 1.1 lodestar multiplier).
15. In re Eunice Train Derailment, 2005 U.S. Dist. LEXIS 46237 (W.D. La. Mar. 28, 2005) (awarding fee of 40% of common fund in class action following train derailment and release of toxic chemicals; amount of settlement fund not stated).
16. Pharmacists Mutual Insurance Company v. Hayes, 2004 WL 5376708 (Mo. Cir. Ct. 2004) (awarding 40% of $35 million settlement fund to class counsel as attorneys’ fees and administration fees; note the decision states that counsel will receive 40% “of the cash payment tendered” by defendant, which seems to imply counsel will only receive a percentage of the claims actually made by class members).
17. Bublitz v. E.I. duPont de Nemours & Co., 224 F. Supp. 2d 1234 (S.D. Iowa 2002) (awarding class counsel 40% of a $7,524,943.40 settlement fund in fees, finding the amount appropriate in proportion to the recovery).
18. Richards v. Jefferson County, 2001 WL 36285144 (Ala. Cir. Ct. Aug. 1, 2001) (awarding 40% of approximately $9 million fund in attorneys’ fees, finding that the “complexity of
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the issues in this case required a high degree of legal skill” and that the value of injunctive relief provided to the class supported the award).
19. Howes v. Atkins, 668 F. Supp. 1021 (E.D. Ky. 1987) (awarding 40% of $1 million settlement in shareholders’ derivative action).
20. Hobson v. First State Bank, 801 S.W.2d 807 (Tenn. Ct. App. 1990) (approving fee award of slightly under 40% – $439,356.12 – of common fund of $1,109,113.07, noting the “complex legal issues presented were first impression issues in this state” and “the litigation presented great hazards and risks” to class counsel).
C-3 DOCUMENT 3312 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 2 DOCUMENT 3312
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
CASE NO. CV-2003-6630
SAM JOHNSON, and CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM, for themselves, individually, and on behalf of a class of all others who are similarly situated,
Plaintiffs, vs.
CAREMARK Rx, L.L.C.; AMERICAN INTERNATIONAL GROUP, INC.; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.; AIG TECHNICAL SERVICES, INC.; and AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY,
Defendants.
DECLARATION OF ARTHUR R. MILLER IN SUPPORT OF PLAINTIFF CLASS'S SUBMISSION REGARDING ATTORNEYS’ FEES
COMES NOW Arthur R. Miller who states as follows:
Professional Qualifications
1. I am a University Professor of Law at the New York University School of Law. I
graduated from Harvard Law School, magna cum laude, in 1958 and practiced law in New York
City until 1962. Since then, I have taught full time at the University of Minnesota (1962-1965),
the University of Michigan (1965-1972), the Harvard Law School (1972-2007). and the New
York University School of Law (2007-present). I have taught the basic first year course in Civil
Procedure for more than fifty years and advanced courses and seminars in complex litigation,
class actions, as well as copyright in almost all of those years, and sports law in recent years. For
1
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more than two years, I also have been the Dean of the NYU Tisch Institute of Sports
Management, Media and Business and the Director of the NYU Sports and Society Program.
2. I am the author or co-author of more than forty books and treatises, including
Federal Practice and Procedure, the leading multi-volume treatise on practice in the Federal
Courts, and New York Civil Practice, a leading multi-volume treatise on New York practice. I also am the author or co-author of at least 30 law review and other articles on a range of issues, including United States constitutional law, federal court litigation, civil procedure, transnational procedure, intellectual property, privacy, and technology issues.
3. With regard to attorneys’ fees, I was requested in or about 1976 by the Federal
Judicial Center to study and prepare a comprehensive monograph on all aspects of attorneys’ fee awards in the federal courts. The result of that work was published in or about 1978 by the
Center and made available to judges and lawyers; it has been utilized by many state and federal courts. I was later asked by Chief Judge Aldisert of the United States Court of Appeals for the
Third Circuit to serve as the Reporter for a special Task Force consisting of distinguished judges and practitioners. Our charge was to survey and analyze federal court fee award practices under various judicial methodologies, particularly the then-prevalent lodestar method. The group’s work produced a document, Court Awarded Attorney Fees, Report of the Third Circuit Task
Force, October 8, 1985, reprinted at 108 F.R.D. 237 (1985), which has been cited frequently and has been instrumental in guiding many state and federal courts to continue or return to their use of percentage fee awards or to abandon the lodestar method or to use the lodestar method as a cross-check on a proposed percentage award.
4. I also have served as a member of the Special Advisory Group to the Chief Justice of the United States on Federal Civil Litigation (by appointment of Chief Justice Burger), as the
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reporter and then as a member of the Advisory Committee on Civil Rules of the Judicial
Conference of the United States (by appointment of Chief Justice Burger and by reappointment of Chief Justice Rehnquist), as reporter for the Third Circuit Attorneys’ Fee Study, as reporter of the Advisory Group on Civil Justice of the United States District Court for the District of
Massachusetts, as special consultant to the original Manual for Complex Litigation, as a member of the American Bar Association Special Committee on Complex and Multidistrict Litigation, and as a member of numerous other professional committees and organizations. I also was the reporter for the American Law Institute’s Complex Litigation Project, which led to the adoption and publication by the Institute of Complex Litigation: Statutory Recommendations and Analysis with Reporter’s Study (1994) and also served as a Special Advisor to the American Law
Institute’s Special Project on Aggregation in Litigation.
5. I was one of the draftsmen of the Uniform Interstate and International Procedure
Act. I have testified before numerous United States Senate and House of Representatives subcommittees on constitutional, procedural, privacy, and other issues.
6. Throughout my years in academe, I have maintained my contacts with the Bench and the practicing Bar in order to understand the actual operation and functioning of the civil justice system. In that connection, I have participated in countless judicial conferences in the various federal Circuit Courts of Appeal and in educational programs conducted by the Federal
Judicial Center and by state judicial organizations and national and state bar associations as a lecturer or a discussion leader on a wide variety of subjects, including many on class actions, fee award procedures, and various aspects of complex litigation.
7. In addition, I have appeared as a lawyer or as an expert in approximately 100 class actions and complex cases in state and federal courts throughout the country, on behalf of
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both plaintiffs and defendants, with regard to various issues including the propriety of class certification, the fairness, reasonableness, and adequacy of settlements, judicial awards of attorneys’ fees, subject matter and personal jurisdiction, discovery, choice of law, preemption, jury trial, and appealability. Those cases have involved a range of substantive contexts, such as mass disasters, product defects, toxic substances, antitrust, security frauds, consumer deception, consumer financing, insurance matters, RICO, copyright, mail fraud, and wire fraud. This experience has included oral argument before the United States Supreme Court, all of the United
States Courts of Appeals, numerous United States District Courts, and a number of state trial and appellate courts.
8. I also have been the host of several television programs that have received a variety of awards for promoting public understanding of the law, including several from the
American Bar Association. My complete resume, including a list of all of my significant publications, is attached. I am being compensated at my usual hourly rate for my professional services in this litigation.
Background and Assignment
9. This Declaration is submitted at the request of the Co-Lead Counsel for the
Plaintiff Class in this litigation: John Q. Somerville (Somerville, LLC), John W. Haley (Hare,
Wynn, Newell & Newton, LLP), Ralph Cook (Hare, Wynn, Newell & Newton, LLP), Scott
Powell (Hare, Wynn, Newell & Newton, LLP), Bruce McKee (Hare, Wynn, Newell & Newton,
LLP), Brian Vines (Hare, Wynn, Newell & Newton, LLP), Tempe Smith (Hare, Wynn, Newell
& Newton, LLP), and J. Timothy Francis (Francis Law, LLC). I understand that the Court has requested submissions from the Plaintiff Class in this litigation about prospective attorneys’ fee awards for the settlement reached in this litigation.
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10. I have been asked to review the results reached in this litigation and the general background of fee awards in complex litigation. I will then offer some opinions that I hope will be helpful to the Court in addressing its request for input about fee awards.
11. In summary, it is my opinion that in awarding or setting fee percentages, the
Court should have specific information about the merits of the settlement, the time and expense involved to achieve those results, the merits and defenses of the particular claims, and the other information generally addressed by Courts when considering fees in a class action settlement. I also believe that a decreasing scale of fee percentage is not necessarily appropriate simply because the size of the settlement may prove to be large, something that is unknown at the outset or even during the litigation. In my opinion, based upon the efforts of Class Counsel and the result achieved in this extremely difficult case, a 40% fee is justified and should be awarded.
12. In assessing these attorneys’ fee issues for the Plaintiff Class's counsel, I have reviewed the materials related to this litigation as well as certain other documents. I am aware of the background of the complex litigation arising out of the financial fraud at MedPartners, Inc. I also am aware of the previous underlying 1998 MedPartners Securities Litigation class action settlement of $56 million.
13. I have reviewed various filings made by Class Counsel, including:
June 4, 2004, First Amended Class action Complaint
February 23, 2004, Objection and Response to Motion to Dismiss
October 29, 2015 Plaintiff Class's Combined Partial Summary Judgment Brief on Suppression Claim: Reply Brief and Response in Opposition to Cross Motion
November 12, 2015 Objection and Response to Motion to Disqualify
May 28, 2016, Motion for Preliminary Approval of Proposed Class Action Settlement
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14. I have reviewed certain orders entered by the trial court, including:
July 23, 2004, Order denying Defendants' Motion to Dismiss
August 15, 2012, Order on Motion for Class Certification
November 24, 2015, Order denying in part and granting in part Plaintiff Class's Motion for Partial Summary Judgment
February 16, 2016, Orders denying Defendants' Motions for Summary Judgment
June 1, 2016, Order Preliminarily Approving Settlement and Providing For Notices to the Class
15. I have reviewed certain Supreme Court of Alabama opinions related directly to this class action including:
October 20, 2006, Alabama Supreme Court Opinion ruling on three appeals, including class certification
February 27, 2015, Opinion ruling on two appeals, including class certification
A more comprehensive list of the documents I have received is attached as Exhibit A.
16. Based upon the materials that I have reviewed, and based on discussions with
Class Counsel, the following observations are appropriate:
a. There Would Have Been No Case (and therefore no benefit for the class members) Without The Knowledge And Efforts Of Class Counsel.
Unlike most other cases in which a class action may result from public disclosures
of fraud or an investigation of law enforcement or the Securities and Exchange
Commission, this case stemmed from Class Counsel's discovery in unrelated
litigation of the unlimited coverage that was provided by policies that had been
issued by AIG. Therefore, there would be no case without the efforts of Class
Counsel.
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b. Class Counsel Undertook And Endured Significant Risk.
Class Counsel accepted the task of representing the potential Class against two of
the largest and most powerful corporations in the world. Corporations of that
character hire the most sophisticated and capable lawyers in the world. Yet, Class
Counsel endured in their representation of the Class for thirteen years - from 2003
until 2016. Class Counsel undertook that representation on a contingent fee basis
and advanced over $2.5 million in costs. The risk was substantial, particularly
when one considers the history of appellate court treatment of class actions over
the last fifteen years. c. Class Counsel Served A Critical Role In The Judicial Process.
The actions of Class Counsel on behalf of the Class have been formidable. In
addition, through their diligence and endurance, it is my opinion that Class
Counsel have actually served a vital role in preserving the integrity of the judicial
process in Alabama. But for the tenacity and perseverance of Class Counsel, the
fraud and suppression that is the subject of this lawsuit would never have been
discovered let alone remedied. Therefore, even if one does not characterize the
role of Class Counsel as that of private attorneys general as many would, they
have nonetheless played a critical role in preserving the sanctity and legitimacy of
the judicial process. Simply put, they saw a wrong and, at considerable risk,
stood up to this wrong on behalf of the Class for over a decade. Such actions
should be compensated and thereby encouraged. d. This Class Action Was Highly Complex, Time Consuming, Hard Fought, and Unique.
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Based upon my review of the pleadings, and filings in this case, it is evident that
this litigation was highly complex and extremely hard fought. It is clear that
defendants hired extremely capable attorneys who left no issue unchallenged.
The entity theory underlying the recovery for the Class was quite unique and
required Class Counsel to navigate unchartered waters. A review of the case
action summary reveals that thousands of pleadings were filed. The case went to
the Supreme Court of Alabama on direct appeals or mandamus petitions over five
times. Class Counsel fought for Class Certification and prevailed. Then they
engaged in extensive discovery and prepared the case for trial. It was not until the
case had been prepared for trial that a settlement was reached. The resulting $310
million fund for the class is extraordinary.
17. I find the procedural history of this class action to be remarkably extensive and complex, fraught with daunting obstacles for Class Counsel in trying to prosecute it. In my opinion the work of Class Counsel throughout this matter has been relentlessly energetic and of an extremely high quality.
Common Benefit Doctrine
18. I now turn to a description of the applicable legal principles, and then apply them to the Plaintiff Class and this litigation.
19. The common benefit doctrine unquestionably applies in this context. The doctrine, which was recognized by the United States Supreme Court in the Nineteenth Century and almost a century before the emergence of the modern class action ensures that those who do work – in this case, class counsel – that create a beneficial recovery for others are entitled to fair recompense and compensation for their efforts from the beneficiaries of those efforts, a point
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underscored by the contingent, protracted, and risky nature of the professional work undertaken in litigation such as this.
20. Over the years, the jurisprudence concerning common benefit recoveries by contingent fee lawyers is fairly extensive and has become very sophisticated and nuanced. By virtue of years of refinement, practical experience, academic writing, and judicial consideration
(some of which I have been involved with, most notably, the Report of the Task Force to Study
Court Awarded Attorneys’ Fees in Class Actions established by the United States Court of
Appeals for the Third Circuit) certain principles have become well established.
21. Most significantly, the interest of all involved – the parties, particularly class member claimants, but even defendants and the court system – are most efficiently, equitably, and effectively advanced by awarding common benefit attorneys in an amount based upon a percentage of the recovery obtained and made available to claimants. Alternative measures, such as looking to hours employed and billing rates (the short-lived “lodestar” method) is defective and undesirable because it places plaintiffs and their counsel at cross purposes by creating a disincentive for plaintiffs’ counsel to litigate efficiently and to settle cases until they had invested many hours on the matter, encouraging excessive billing and unproductive and unnecessary activities by counsel, and, in some cases, causing plaintiffs’ counsel to engage in practices that often do not further the resolution of the litigation and occasionally are professionally inappropriate.
22. A lodestar approach, both practically and philosophically, may tend to defer settlement and interfere with the natural case resolution dynamic and the system’s need for efficiency. In many situations it encourages attorneys, who know they will be compensated under a lodestar method, to postpone settlement until they have “gotten their hours in.” The
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result is judicial diseconomy, the misalignment of the interests of counsel and client, and the propagation of a process that is counterintuitive to everything the litigation system is trying to accomplish through its encouragement of efficiency and early disposition of litigation. The administration of the lodestar methodology also has proven time consuming for judges whose efforts are better directed to other matters.
23. The percentage method of awarding attorneys’ fees puts the lawyer and the client on a plane of common direction; and from an efficiency and rationality perspective, lines up the interests of clients and lawyers by trying to replicate the legal marketplace and, in part, to construct something analogous to a contractual relationship between attorney and client. In my experience of researching, testifying and lawyering regarding fee matters, in a significant number of contingency fee damage cases, whether fraud, mass tort, product defect, or otherwise, the marketplace contingency fee contract generally would set fees at one-third of the recovery, 40 percent of the recovery, and in some cases involving high risk or extensive activity even 50 percent of the recovery.
24. Since the publication of the 1985 Third Circuit Task Force Report there has been something in the nature of a revolution across the country in fee award methodology with a clear majority of United States Circuit Courts of Appeals, a majority of the federal District Courts in all Circuits, and a significant majority of state courts, returning to and revalidating the longstanding percentage approach to awarding attorneys’ fees for common benefit work that antedated the emergence (and short tenure) of the lodestar method.
25. Moreover, since the Report of the Third Circuit Task Force the lodestar approach has been rejected as a primary methodology for fee awards by the vast majority of courts in the country or at most used as a “cross-check” on the proposed percentage. Not surprisingly, it has
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come to be recognized that the lodestar method “is a source of many problems and has been widely condemned.” Charles Silver, Unloading the Lodestar: Toward a New Fee Award
Procedure, 70 Texas L. Rev. 865, 67 (1992). The Third Circuit Task Force described the lodestar method as a “cumbersome, enervating and often surrealistic process of preparing and evaluating fee petitions that now plagues the Bench and Bar” and criticized it for being
“insufficiently objective,” for “encouraging lawyers to engage in duplicative and unjustified work, [to] inflate their ‘normal’ billing rate[s], and [to] include fictitious hours,” for “creat[ing] a disincentive for early settlement of cases,” and for being confusing and unpredictable. Report of
Third Circuit Task Force, Court Awarded Attorney Fees, 8-20 (Oct. 8, 1985), reprinted at 108
F.R.D. 237, 241-258 (1985).
26. The Federal Courts Study Committee reiterated these complaints, stating that the lodestar method “unduly burdens judges” by forcing them to act as regulators and by encouraging litigation over alleged fee-padding. Report of the Federal Courts Study Committee
104 (April 2, 1990). The Manual for Complex Litigation (Fourth) (2011) (“Manual”), which distills the experience federal judges have managing difficult cases and advises them on various subjects, states: “In practice, the lodestar method is difficult to apply, time-consuming to administer, inconsistent in result, and capable of manipulation. In addition, the lodestar creates inherent incentive to prolong litigation until sufficient hours have been expended.” Manual, §
14.121. As an alternative to the lodestar method, the Federal Courts Study Committee recommended that judges explore the possibility “of basing fee awards . . . on a percentage of the recovery obtained.” Report of the Federal Courts Study Committee, at 105. The Third Circuit
Judicial Conference, Update on Third Circuit Fee Task Force Report on Court Awarded
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Attorneys Fees 10 (Sept. 13, 1991) (quoted in Alba Conte, Attorney Fee Awards § 2.7 (3d ed.)), made the same recommendation the following year, stating that:
[t]he percentage method clearly has a number of advantages, including that it is relatively objective, can be easily administered by the courts, will simplify the fee setting process, and will not place a possible premium on running the hourly meter. It better aligns the financial interest of the client with that of the lawyer. It uses economic based incentives, rather than court-imposed, after-the-fact controls to regulate fees.
27. This appraisal has been widely endorsed by courts. For example, in Kirchoff v.
Flynn, 786 F.2d 320, 325-326 (7th Cir. 1986), which was not a class action, the Seventh Circuit
(a leading proponent of calibrating fee awards so that they reflect the marketplace for legal services) wrote that the percentage method “automatically aligns interests of lawyer and client, rewards exceptional success, and penalizes failure.” See also In re Unisys Corp. Retiree Med.
Benefits ERISA Litig., 886 F.Supp. 445, 457-460 (E.D. Pa. 1995) (criticizing the lodestar method, and stating a preference for fee awards to be established at the outset of litigation to “infuse simplicity, certainty, and fairness into the attorneys’ fee process”); Foster v. Boise-Cascade, Inc.,
577 F.2d 335, 337 n.1 (5th Cir. 1978) (criticizing lodestar method). I could cite innumerable additional judicial authorities to the same effect.
28. Every leading scholar of the economics of litigation who has studied the matter also has condemned the lodestar approach. As summarized by highly regarded Professor John C.
Coffee, Jr., the percentage method is the only reasonable way to measure fees:
If one wishes to economize on the judicial time that is today invested in monitoring class and derivative litigation, the highest priority should be given to those reforms that restrict collusion and are essentially self-policing. The percentage of the recovery fee award formula is such a “deregulatory” reform because it relies on incentives rather than costly monitoring. Ultimately, this “deregulatory” approach is the only alternative.
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Coffee, Understanding the Plaintiffs’ Attorney: The Implications of Economic Theory for Private
Enforcement of the Law through Class and Derivative Actions, 86 Colum. L. Rev. 669, 724-725
(1986). See also Macy & Miller, The Plaintiffs’ Attorney Role in Class Action and Derivative
Litigation, Economic Analysis and Recommendations for Reform, 58 U. of Chi. L. Rev. 1, 4, 59-
61 (1991); Silver, supra, at 868ff. (citing authorities).
Percentage Amount
29. When a class action is undertaken entirely on a contingent basis, as this one was, the percentage of the benefit method most clearly mirrors the marketplace in the legal community with respect to fees, and a fee award based upon a percentage of the recovery or benefit achieved is the most appropriate measure of the market for those services. Clearly, a percentage of recovery approach is the appropriate method of awarding a fee in a case like this one.
30. The Alabama Supreme Court has held that when a common fund is recovered, the appropriate method of setting a fee is to award a percentage of the recovery. Edelman & Combs v. Law, 663 So.2d 957 (Ala. 1996). The Edelman decision has never been overruled or limited, and remains the law of the jurisdiction. The Supreme Court in Edelman held:
We hold that in a class action where plaintiff class prevails and the lawyer's efforts result in a recovery of a fund, by way of settlement or trial, a reasonable attorney fee should be determined as a percentage of the amount agreed upon in the settlement or recovered at trial.
Id. at 959.
31. The Alabama Supreme Court in Edelman indicated that the fee awards in common fund cases in Alabama generally fall between 20% and 50%. Id. at 960 ("In some
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cases, 20% may be reasonable, based upon the amount of the award and other factors. In other cases, 40%, or even 50%, may be justified.").
32. Notably, in the underlying case, the 1998 MedPartners Securities Litigation, the
Circuit Court awarded 33%, or $18.4 million, in legal fees on a fund of $56 million created by a settlement, not in a case litigated to judgment with its attendant enhanced risks. The Court awarded out-of-pocket expenses of over $300,000. Griffin, v. MedPartners, CV-98-00297. That settlement provides authority in this case for an award of greater than 33%. The litigation now before this court extended for a longer period of time, was far more difficult, and the money recovered for the member of the Plaintiff class was far greater.
33. Alabama specifically recognizes that fee awards in federal courts provide important persuasive authority. Alabama Courts look to federal decisions in this legal area for guidance on this issue of court awarded fees, and as "persuasive and a starting point for our evaluation." Union Fidelity Life Ins. Co. v. McCurdy, 781 So.2d 186, 189 (Ala. 2000).
34. Accordingly, because Alabama Courts look to federal decisions for guidance, the decisions of the Eleventh Circuit Court of Appeals are instructive. Pursuant to Camden I
Condominium Ass'n, Inc. v. Dunkle, 946 F.2d 768, 773 (11th Cir. 1991), the Eleventh Circuit
requires the percentage-of-recovery method of fee calculation when a common fund is
recovered. Camden I also identifies additional factors to consider, including the time required to
reach the settlement, objections from the class to the settlement terms or the fees requested, non- monetary benefits, the "economics involved in prosecuting a class action," and other factors
"unique to a particular case."
35. Moreover, the Eleventh Circuit made very clear in Camden I that "[t]hat there is
no hard and fast rule mandating a certain percentage of a common fund which may reasonably be
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awarded as a fee because the amount of any fee must be determined upon the facts of each case."
Instead, "[i]ndividualization in the exercise of discretionary power [for fee awards] will alone retain equity as a living system and save it from sterility." Id. at 774, quoting Sprauge v. Ticonic
Nat. Bank, 307 U.S. 161, 167, 59 S. Ct. 777, 780, 83 L. Ed. 1184 (1939) (Frankfurter, J.). Some courts cite Camden I for the proposition that a broad range of "20%-50% of the common fund's value" is "the customary fee in class actions that result in substantial benefits for the class."
David v. Am. Suzuki Motor Corp., No. 08-CV-22278, 2010 WL 1628362, at *8 n. 15 (S.D. Fla.
Apr. 15, 2010); Wilson v. EverBank, No. 14-CIV-22264, 2016 WL 457011, at *14 (S.D. Fla.
Feb. 3, 2016); Montoya v. PNC Bank, N.A., No. 14-20474-CIV-GOODMAN, 2016 WL
1529902, at *17 (S.D. Fla. Apr. 13, 2016).
36. In 1996, the Federal Judicial Center studied all class actions resolved or settled over a two-year period in four selected federal district courts (the Eastern District of
Pennsylvania, the Northern District of California, the Southern District of Florida, and the
Northern District of Illinois). These districts were chosen because each had substantial experience with, and a high volume of, class actions. The Study found: “Median rates ranged from 27% to 30%. Most fee awards in the study were between 20% and 40% of the gross monetary settlement.”
37. The results of other empirical studies have led to similar conclusions. The
Eisenberg and Miller study of class actions noted a “remarkable uniformity in [fee] awards between roughly 30% to 33% of the settlement amount” See Theodore Eisenberg and Geoffrey
Miller, Attorney Fees in Class Action Settlements: An Empirical Study, 1 Journal of Empirical
Legal Studies 27, 33 (2004); see also Alba Conte & Herbert Newberg, Newberg on Class
Actions §14:6 at 551 (4th ed. 2002) (“Empirical studies show that, regardless whether the
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percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”)
38. Illustrative of the jurisprudence, district courts in the Sixth Circuit have frequently awarded one-third of the common fund or more. In re Prandin Direct Purchaser Antitrust Litig.,
No. 2:10-CV-12141-AC-DAS, 2015 WL 1396473 (E.D. Mich. Jan. 20, 2015) (awarding one- third of the fund); In re Skelaxin, 2014 WL 2946459 (E.D. Tenn. June 30, 2014); In re Se. Milk
Antitrust Litig., No. 2:07-CV 208, 2013 WL 2155387, at *8 (E.D. Tenn. May 17, 2013) (one- third fee from settlements totaling $158.6 million); In re Packaged Ice Antitrust Litig., 2011 WL
6209188, at *19 (E.D. Mich. Dec. 13, 2011); Thacker v. Chesapeake Appalachia, L.L.C., 695 F.
Supp. 2d, 521, 528 (E.D. Ky. 2010); Bessey v. Packerland Plainwell, Inc., No. 4:06-CV-95, 2007
WL 3173972, at *4 (W.D. Mich. Oct. 26, 2007); In re Delphi, 248 F.R.D. at 502-03 (E.D. Mich.
Jan. 11, 2008); In re Nat’l Century Fin. Enters., Inc. Inv. Litig., No. 2:03-MD-1565, 2009 WL
1473975 (S.D. Ohio, May 27, 2009); Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496, 503
(E.D. Mich. 2000). Some district courts have found the range to be as high as 50 per cent of the common fund. In re Telectronics Pacing Sys., Inc., 137 F.Supp.2d 1029, 1046 (S.D. Ohio 2001);
In re Cincinnati Gas & Elec. Co. Sec. Litig., 643 F. Supp. 148, 150 (S.D. Ohio 1986).
39. District courts in other circuits also have issued similar awards. See Standard
Iron Works v. Arcelormittal, No. 08 C 5214 2014 WL 77815572, at *1 (N.D. Ill. Oct. 22, 2014)
(attorneys’ fee award of one-third of $163.9 million settlement); In re Fasteners Antitrust Litig.,
No. CIV.A. 08-MD-1912, 2014 WL 296954, at *7 (E.D. Pa. Jan. 27, 2014) (“Co-Lead Counsel’s request for one third of the settlement fund is consistent with other direct purchaser antitrust actions.”); In re Titanium Dioxide Antitrust Litig., No. 10-CV-00318 RDB, 2013 WL 6577029, at *1 (D. Md. Dec. 13, 2013) (one-third fee from $163.5 million fund); In re Flonase Antitrust
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Litig., 951 F. Supp. 2d 739, 748-52 (E.D. Pa. 2013) (noting that “in the last two-and-a-half years, courts in eight direct purchaser antitrust actions approved one-third fees” and awarding one-third fee from $150 million fund); Heekin v. Anthem, Inc., No. 1:05-CV-01908-TWP, 2012 WL
5878032 (S.D. Ind. Nov. 20, 2012) (awarding one-third fee from $90 million settlement fund); In re Ready-Mixed Concrete Antitrust Litig., No. 1:05-CV-00979-SEB, 2010 WL 3282591, at *3
(S.D. Ind. Aug. 17, 2010) (approving one-third fee); Williams v. Sprint/United Mgmt. Co, No.
CIV.03-2200-JWL, 2007 WL 2694029, at *6 (D. Kan., Sept. 11, 2007)(awarding fees equal to
35 per cent of $57 million common fund); Lewis v. Wal-Mart Stores, Inc., No. 02-CV-0944 CVE
FHM, 2006 WL 3505851, at *1 (N.D. Okla., Dec. 4, 2006) (awarding one-third of the settlement fund and noting that a “one-third [fee] is relatively standard in lawsuits that settle before trial.”);
New England Health Care Employees Pension Fund v. Fruit of the Loom, Inc., 234 F.R.D. 627,
635 (W.D. Ky. 2006) (“[A] one-third fee from a common fund case has been found to be typical by several courts.”) (citations omitted), aff’d, 534 F.3d 508 (6th Cir. 2008); In re AremisSoft
Corp., Sec., Litig., 210 F.R.D. 109, 134 (D.N.J. 2002) (“Scores of cases exist where fees were awarded in the one-third to one-half of the settlement fund.”) (citations omitted); Moore v.
United States, 63 Fed. CI. 781, 787 (2005) (“one-third is a typical recovery”).
40. As noted in In re Rite Aid Securities Litig., "[t]he average percentage [in attorney's fees] of settlements between $100 million and $200 million is 28.1%." 146 F.Supp.2d
706, 735-736 (B.D.Pa. 2001)("Rite Aid I") (citations omitted) (concluding that 25% of a $193 million partial settlement was "eminently reasonable.") In any event, the skill and persistence of
Class Counsel in litigating this matter to judgment for over 13 years plainly merits an award above the average.
Percentage Reductions for Large Settlements
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41. I understand that the Court expects input about the attorneys’ fee award percentages for the settlement in this litigation. In making such a request, the Court is carrying out its duty to monitor fee requests carefully and I am pleased to offer some suggestions about that process.
42. In providing this input, I have been mindful of the nature of the settlement reached by the Plaintiff Class and the extraordinarily positive reaction from the members of the
Class to this settlement. The settlement provides cash-only benefits to the class members of the
1998 MedPartners Securities Litigation. Moreover, the settlement does not include a cy pres component and all money available after the payment of costs and attorneys’ fees will be distributed to eligible class members through an allocation plan approved by the court.
43. There were three objections (comprising only ten objectors) to the settlement, which is remarkable in today’s class action environment. The paucity of objections from the class indicates the reasonableness of the fee. Over 75,000 class notices were mailed.
44. I am aware of the argument that fee recoveries should decline as the size of the fund increases above a certain point. These are sometimes referred to as “mega fund” settlements. In my view, the Court should not take this approach in this case for the following reasons:
(a) In today’s world, recovery of even hundreds of millions of dollars on a
claim intensely litigated for over many years at great risk should not automatically
be categorized as a “mega fund” for purposes of determining what is a proper fee
award. That is far too simplistic. The only rational basis for reducing percentages
at the top ends of very high class action recoveries is the avoidance of a windfall,
which might be true because a case had relatively little risk or counsel invested
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comparatively modest time and effort or despite the size of the fund created by the action the result was not particularly favorable or perhaps because the case was simply a tag-along to prior determinations that “paved the way.” Given the lengthy and very contentious litigation currently before the Court, this litigation does not have the potential to create windfall for counsel. I therefore believe that the so-called “mega fund” approach is not appropriate, especially as it relates to the Plaintiff Class.
(b) There is no rule of law requiring that a trial court reduce fee petitions simply because there is a large settlement or award. The cases I have cited all involve substantial amounts of money, but usually result in percentage recoveries similar to or larger than what the Plaintiff Class counsel has sought.
(c) The size of the settlement should, logically and pragmatically, not be an indicator of whether a percentage common benefit fee is appropriate since it is not an index of the risks assumed by the attorneys or the litigation difficulties they faced or the quality of the results achieved by the tenacious and dedicated efforts of counsel for the benefit of the claimants. In numerous cases that do not appear to be as difficult or tenaciously contested as this one, there have been large settlements in which the fees awarded are in the 30% to 36% range. See, e.g., In re Combustion, Inc., 968 F. Supp. 1116, 1133, 1142 (W.D. La. 1997) (awarding fee of 36 per cent and noting that “50 percent of the fund is the upper limit on a reasonable fee award from a common fund . . . . [D]istrict courts in the Fifth
Circuit have awarded percentages of approximately one-third contingency fee”);
In re U.S. Bancorp Litig., 291 F.3d 1035, 1038 (8th Cir. 2002) (fee of 36%);
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Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1292-94 (11th Cir. 1999);
In re Vitamins Antitrust Litig., No. MDL 1285, 2001 WL 34312839, at *10
(D.D.C. 2001) (awarding 33.33% of $359 million antitrust recovery, which is
“within the fifteen to forty-five percent range established in other cases”); In re
Ampicillin Antitrust Litig., 526 F. Supp. 494, 498 (D.D.C. 1981) (awarding a fee of 45 percent). This is so even when the recoveries approach or exceed $100 million. See, e.g., In re Thirteen Appeals Arising Out of the San Juan Dupont:
Fire Litig., 56 F.3d 295 (1st Cir. 1995) (30.0% of $220 million); McCoy v. Health
Net, Inc., 569 F. Supp. 2d 448 (D.N.J. 2008) ($69,720,000, or about 32.4%, of a class action settlement recovery of $215,000,000); In re Relafen Antitrust Litig.,
231 F.R.D. 52 (D. Mass. 2005) [Doc. No. 459] (33.33% of $67 million indirect purchaser settlement); In re Lupron Marketing and Sales Practices Litig., No. 01-
10861-RGS (D. Mass. Aug. 17, 2005) [Doc. No. 455] (30.00% of $90 million settlement); In re Relafen Antitrust Litig., 2004 U.S. Dist. LEXIS 28801 (D.
Mass. April 9, 2004) (33.33% of $175 million direct purchaser settlement); In re
Linerboard Antitrust Litig., No. CIV.A. 98-5055, 2004 WL 1221350, at *19 (E.D.
Pa. June 2, 2004) (awarding $60 million in fees – 30% of the $202 million settlement fund); In re Buspirone Patent, No. 1-MD-1413, slip op. at 41-43
(S.D.N.Y. Apr. 17, 2003) (33.33% of $220 million); In re Combusion, Inc., 968 F.
Supp. 1116 (W.D. La. 1997) (36% of $125 million settlement fund); In re
Coordinated Pretrial Proceedings in Petroleum Products Litigation, No. MDL-
150 AWT (C.D. Cal.), 1994 WL 675265 (30% of $140 million); Kurzweil v.
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Phillip Morris Co., Inc., Nos. 94 Civ. 2373 (MBM), 94 Civ. 2546 (BMB), 1999
WL 1076105 (S.D.N.Y. Nov. 30, 1999) (30% of $124 million settlement fund).1
(d) There is something of a trend recently away from reducing the fee
percentage when there is a very large recovery. Many courts consider reducing
the percentage a disincentive to plaintiffs to push harder or litigation longer to
obtain the largest recovery they can for their clients. Examples are: In re
Linerboard, 2004 WL 1221350 (granting a flat 30% fee based on a recovery of
$202 million; finding that “. . . the sliding scale approach is economically
unsound;” and agreeing with the Seventh Circuit that “reducing fees for large
awards is economically irrational”); In re Ikon Office Solutions, Inc. Sec. Litig.,
194 F.R.D. 166 (E.D. Pa. 2000) (awarding a flat fee of 30% of a $111 million
common fund and finding that diminishing fee percentages on increasing
1 The fullest analysis of fee awards in securities class actions has been conducted by the National Economic Research Associates, a highly regarded economics consulting firm. See Frederick C. Dunbar, Todd S. Foster, Vinita M. Juneja & Denise N. Martin, Recent Trends III: What Explains Settlements in Shareholder Class Actions? (NERA, June, 1995) (hereinafter “NERA Study”). Using data from 656 shareholder class actions that were settled, dismissed, or resolved by a jury verdict between January 1991 and December 1994, the NERA Study reached a number of findings based on data that is both more current and more reliable than that underlying other class action studies. On the central question of attorneys' fees, this study reports that “[r]egardless of case size, fees average approximately 32 percent of the settlement.” NERA Study at 7.
Another study of attorney fee awards, prepared by Vincent O’Brien of the Law & Economics Consulting Center, covered securities fraud cases from April 1988 through September 1996 and collected data from some 1280 securities class action cases. See Vincent E. O’Brien, A Study of Class Action Securities Fraud Cases, 1988-1996 (the “O’Brien Study”). It found that the average fee awarded to plaintiffs’ counsel in securities cases amounted to 32% of the settlement fund (which was up from the 29% level that was the average from April 1988 to March 1993). The O’Brien Study also reported that some other studies (whose methodology it questioned) have found the average fee award to be as high as 40% of the settlement fund. (See O’Brien Study, Part III, page 2.)
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recoveries “tends to penalize attorneys who recover large settlements”);
Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1213 (S.D. Fla.
2006) (awarding a 31.33% fee of a recovery of $1,065 billion, and holding:
“While some reported cases have advocated decreasing the percentage awarded as the gross class recovery increases, that approach is antithetical to the percentage of the recovery method adopted by the Eleventh Circuit in Camden, the whole purpose of which is to align the interests of the Class Counsel and the Class by awarding counsel in proportion to the results obtained . . .”); and In re Synthroid
Mktg. Litig., 264 F.3d 712 (7th Cir. 2001) (reversing as economically irrational a fee award that applied the reduced rate to the entire recovery, not just the portion above “megafund” benchmark); and
(e) Decreasing percentages as recoveries increase is a disincentive for plaintiffs’ counsel to obtain the highest possible recovery and fails to recognize the unique skills (and sometimes the standing) of lawyers who are gifted negotiators or willing to “go the extra mile” in the settlement dynamic. In words applicable to this case, a federal court in the Eleventh Circuit has stated: "By not rewarding Class Counsel for the additional work necessary to achieve a better outcome for the class, the sliding scale approach creates the perverse incentive for
Class Counsel to settle too early for too little." Allapaltah Servs., Inc., 454 F.
Supp 2d. at 1213. "[I]f courts were to hold that the percentage should decline sharply after, say, the $100 million threshold was passed, then plaintiff's counsel in a case such as this would have had little incentive to hold out for nine long years for the $1.2 billion recovery that it obtained." Id. Indeed, it actually makes
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more sense to increase fee percentages as the recovery increases; certainly in a
negotiated situation, common sense indicates it is far easier to recover the first
dollar than the last dollar – and that probably also is true of judicial and jury
awards as well.
45. It is extremely important to take into account the risks and front end investment assumed by the Plaintiff Class's counsel, their willingness to put their own financial resources
(to-date millions of dollars in expenses in this case) on the line with absolutely no guarantee of reimbursement, let alone receipt of any fee for their services. It is this element of risk that is particularly critical in a case of this magnitude and complexity and duration in which expenditures of time, money, and other resources obviously are much greater than in cases of more modest dimension. These magnified risks should be reflected in the fee award when counsels’ efforts produce significant benefits for the class.
46. I also would point out that in setting the fee percentage, the Court also should be cognizant of the effect judicial awards of fees may have on the incentives and predilections of members of the profession who are asked to litigate cases like the one before the Court, and recognize the importance of there being competent plaintiffs’ counsel available to represent and protect the next class of citizens in the next class action. Unless marketplace compensation is provided for competent attorneys, talented professionals will pursue other professional avenues.
This presents a matter of access to justice. There is an obvious truth: The vast majority of
Americans and small business entities simply cannot afford to pay for representation on an hourly basis, especially in extremely difficult class action cases such as this one, that require the expenditure of enormous resources to explore the facts and retain the relevant experts that are needed to understand a complex and technical matter. Therefore, in order to ensure our courts are
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RÉSUMÉ OF ARTHUR R. MILLER CBE University Professor New York University
Office Addresses:
New York University School of Law New York University School of Professional Studies 40 Washington Square South 7 East 12th Street Vanderbilt Hall 430F New York, NY 10012 New York, NY 10003 Phone: (212) 992-8147 Phone: (212) 998-7202 Fax: (212) 995-4341 Email: [email protected]
College Education: University of Rochester A.B. 1955, with high honors Phi Beta Kappa
Professional Education: Harvard Law School LL.B. 1958, magna cum laude Articles Editor, Harvard Law Review
Employment (Academic)
9/2014 – Present, Associate Dean and Director of the NYU Tisch Institute for Sports Management, Media, and Business
2007 – Present, Chairman, NYU Sports & Society Program
2007 – Present, University Professor, New York University
2001-2002, 2006-2007 Visiting Professor of Law, New York University School of Law
1987-2007, Bruce Bromley Professor of Law, Harvard Law School
1972-2007, Professor, Harvard Law School
1971-1972, Visiting Professor, Harvard Law School
1965-1972, Professor, University of Michigan Law School
1962-1965, Associate Professor, University of Minnesota Law School
1961-1962, Lecturer, Columbia Law School
1961-1962, Associate Director, Columbia Law School Project on International Procedure
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Employment (Firm-Related)
2013– Present, Of Counsel, The Lanier Law Firm, LLP, New York, New York
1989-1991, affiliated with Mayer, Brown & Platt, Chicago, Illinois
1958-1961, associated with Cleary, Gottlieb, Steen & Hamilton, New York, New York
Home Address: 350 West 22nd Street New York, NY 10011-2604
Telephone: (212) 367-7017 Fax (212) 367-7015
Born: June 22, 1934, Brooklyn, New York
Publications relating to Civil Procedure, Copyright, and Other Legal Topics
Books
Cases and Materials on Equitable Remedies, 532 pages (mimeographed)
Civil Procedure: Cases and Materials, 1,389 pages, with J.J. Cound, J.H. Friedenthal, and J. Sexton (ten editions and one revised edition)
Civil Procedure (Hornbook), 880 pages, with J.H. Friedenthal and M K. Kane (four editions)
Civil Procedure Supplement, 513 pages, with J.J. Cound and J.H. Friedenthal (twenty-five editions)
Federal Practice and Procedure, more than forty-five volumes, with C.A. Wright, some with E.H. Cooper, M.K. Kane, and R. Marcus
Intellectual Property: Patents,Trademarks and Copyright in a Nutshell, 437 pages, with M.H. Davis (four editions)
Manual -- CPLR, 1,050 pages, with J.B. Weinstein and H.L. Korn
Miller's Court, 302 pages, Houghton Mifflin; paperback, New American Library (Plume)
New York Civil Practice, eight volumes, with J.B. Weinstein and H.L. Korn
Pleading, Joinder and Discovery -- Cases and Materials, 643 pages, with J.J. Cound and J.H. Friedenthal
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Sum and Substance of Civil Procedure, 417 pages, with J.H. Friedenthal (four editions)
Articles
“From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure,” 60 Duke Law Journal 1 (2010).
“Reliving and Reflecting on Shutts,” 74 University of Missouri at Kansas City Law Review (2006).
“Common Law Protection for Products of the Mind; An ‘Idea” Whose Time Has Come,” 119 Harvard Law Review 703 (2006)
"Copyright Term Extension: Boon for American Creators and the American Economy," 45 Journal of the Copyright Society of the USA 319 (1998)
"Artful Pleading: A Doctrine in Search of Definition," 76 Texas Law Review 1781 (1998)
"Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?," 106 Harvard Law Review 1977 (1993)
"Confidentiality, Protective Orders, and Public Access to the Courts," 105 Harvard Law Review 428 (1991)
“Private Lives or Public Access: The Debate over Courthouse Confidentiality,” ABA Journal, August 1991.
"Resolving the Asbestos Personal-Injury Litigation Crisis," 10 Review of Litigation 419 (1991), with P. Ainsworth
"The New Certification Standard Under Rule 11," 130 Federal Rules Decisions 479 (1990)
"Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts," 96 Yale Law Journal 1 (November 1986), with D. Crump
"Ancillary and Pendent Jurisdiction," 26 South Texas Law Journal 1 (Spring 1985)
"The Adversary System: Dinosaur or Phoenix," 69 Minnesota Law Review 1-37 (October 1984) (Lockhart Lecture)
"Of Frankenstein Monsters and Shining Knights: Myth, Reality and the 'Class Action Problem,"' 92 Harvard Law Review 664-94 (1979)
"Problems of Giving Notice in Class Actions," 58 Federal Rules Decisions 313-34 (1973)
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"Problems in Administering Judicial Relief in Class Actions under Federal Rule 23(b)(3),” 54 Federal Rules Decisions 501-13 (1972)
"Service of Process Under Rule 4 -- Some Unfinished Business for the Rulemakers," 46 Federal Rules Decisions 101-40 (1969)
"Computers, Copyrights, and Medicine," Visual Medicine, June/July 1967, 32-36
"Computers and Copyright Law," 46 Michigan State Bar Journal 11-18 (April 1967) "Federal Rule 44.1 and the 'Fact' Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine," 65 Michigan Law Review 613-750 (February 1967)
"International Cooperation in Litigation Between the United States and Switzerland: Unilateral Procedural Accommodation in a Test Tube," 49 Minnesota Law Review 1069-1132 (May 1965)
Monographs and Chapters
"The August 1983 Amendments to the Federal Rules of Civil Procedure -- Promoting Effective Case Management and Lawyer Responsibility," Federal Judicial Center, 41pages (1984)
"The Class Action -- American Style," Chapter 17, 192-205, The Cambridge Lectures (1983)
"Attorneys' Fees in Class Actions," Federal Judicial Center, 430 paqes (1980)
"An Overview of Federal Class Actions: Past, Present and Future," Federal Judicial Center, 68 pages (1977)
"International Co-operation in Litigation: Switzerland,” in International Co-operation in Litigation: Europe 358-81(1965), with M. Guldener
"International Co-operation in Litigation: Belgium," in International Co-operation in Litigation: Europe 30-51(1965) with F. Rigaux
"International Co-operation in Civil Litigation -- A Report on Practices and Procedures Prevailing in the United States." 103 pages (1961), with H. Smit
"Problems in the Transfer of Interest in a Copyright," in Copyright Law Symposium, Number 10, 131-193 (1959)
Publications relating to Privacy, Information, and Computer Technology
“The Assault on Privacy: Computers, Data Banks and Dossiers,” 320 pages, University of Michigan Press (1971); paperback edition, New American Library (Signet) (1972)
"Computers, Data Banks and Individual Privacy: An Overview," Columbia Human Law Review Volume 4, Number 1, Winter 1972, pp. 1-12
4 DOCUMENT 3312
"The Credit Networks: Detour to 1984," Nation, June 1, 1970, pp. 648-51, 669
"The Dossier Society," University of Illinois Law Forum, Volume 1971, Number 2, pp. 154-67
"The National Data Center and Personal Privacy," Atlantic, November 1967, p. 557
"On Proposals and Requirements for Solutions, Symposium: Computers, Data Banks, and Individual Privacy," 53 Minnesota Law Review 224-41 (December 1968)
"Personal Privacy in the Computer Age: The Challenge of a New Technology in an Information-Oriented Society," 67 Michigan Law Review 1089-1246 (April 1969)
"The Privacy Implications of Instructional Technology," paper prepared for the Commission on Instructional Technology (March 1969)
"The Privacy Revolution: A Report from the Barricades," 19 Washburn Law Journal 1-22 (Fall 1979)
"Psychological Testing and Privacy," Think, May-June 1969.
"The Right of Privacy -- A Look Through the Kaleidoscope," SMU Law Review, Volume 46, Number 1, Summer 1992.
Professional Memberships
Life Member, American Law Institute
Member, Massachusetts and New York State Bars
Member, United States Supreme Court Bar, the Bars of all of the United States Courts of Appeal, various District Court Bars and the Bar of the United States Tax Court
Board Memberships
Board of Directors, Fred Friendly Seminars
Strategic Advisory Board, H5 Technologies
National Policy Board, Infilaw Corp.
Other Professional Activities
Has argued cases in the United States Courts of Appeal in all thirteen Circuits and several cases before theUnited States Supreme Court.
Adviser to the American Law Institute’s current project on Principles of the Law of Aggregate Litigation
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Former member, Advisory Committee on Civil Rules of the Judicial Conference of the United States (by appointment of Chief Justices Burger and Rehnquist)
Former reporter, Advisory Committee on Civil Rules of the Judicial Conference of the United States (by appointment of Chief Justices Burger and Rehnquist)
Reporter, Task Force to Study Court Awarded Attorneys' Fees, U. S. Court of Appeals for the Third Circuit
Reporter, Study on Complex Litigation, American Law Institute
Reporter, Complex Litigation Project, American Law Institute
Member, Special Advisory Committee on Aggregation in Litigation, American Law Institute
Reporter, Civil Justice Advisory Group, U.S. District Court, District of Massachusetts
Member, Special Advisory Group to the Chief Justice of the United States Supreme Court on Federal Civil Litigation
Member, American Bar Association Special Committee on Complex and Multidistrict Litigation
Special Advisor, Board of Editors, Manual on Complex Litigation
Faculty, Federal Judicial Center
Member, American Bar Association Committee on Scientific and Economic Proof
Draftsman, Uniform Interstate and International Procedure Act
Rapporteur, Study on Taking Evidence Abroad, Secretary of State's Advisory Committee on Private International Law
Member of Council, ABA Section on Science and Technology
Member, Institute of Judicial Administration
Listed in Who's Who in America
Public and Professional Activities relating to Privacy, Information, and Computer Technology
Chairman, Massachusetts Security and Privacy Council
Member, National Commission on New Technological Uses of Copyrighted Works (CONTU)(by appointment of President Ford)
Member, Special Committee on Automated Personal Data Systems, U.S. Department
6 DOCUMENT 3312
of Health, Education and Welfare
Member, Special Legislative Commission on Privacy (Commonwealth of Massachusetts)
Member, Governor's Special Commission on Privacy and Personal Data (Commonwealth of Massachusetts)
Member, Panel on Legal Aspects of Information Systems, Committee on Scientific and Technical Information, Federal Council for Science and Technology
Member, Special Decennial Census Review Committee, U.S. Department of Commerce
Member, National Advisory Panel of the Project on Computer Data Banks, National Academy of Sciences
Chairman, Panel on External Affairs, Interuniversity Communications Council (EDUCOM)
Advisor, Special Committee on Computer Research, State Bar of Michigan
Director, American Association of Law Schools Projects on Computer-Assisted Instruction
Member, American Bar Association Committee on Scientific and Economic Proof
Numerous speaking and radio and television appearances on subjects including individual privacy, the census, computer technology, the National Data Center, and computers and the law
Senate Testimony relating to Privacy, Information, and Computer Technology (in each case at the request of the Subcommittee involved)
United States Senate Subcommittee on Technology and the Law, August 1, 1990 (caller ID)
United States Senate Subcommittee on Banking, Housing, and Urban Affairs, October 4, 1973 (consumer credit)
United States Senate Subcommittee on Financial Institutions, August 14, 1972 (amendments to Bank Secrecy Act)
United States Senate Subcommittee on Constitutional Rights, February, 1971 (governmental data banks)
United States Senate Subcommittee on Antitrust and Monopoly, December 11, 1968 (credit bureaus)
United States Senate Subcommittee on Administrative Practice and Procedure (the computer and individual privacy)
Media Activities
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Former Legal Editor, WCVB-TV Channel 5, Boston
Former Legal Editor, "Good Morning America," ABC-TV
Former Host, "Miller's Law" and "In Context", Courtroom Television Network (Court TV)
Former Host, "Miller's Court," WCVB-TV Channel 5, Boston
Former Host, "Headlines on Trial," WRC-TV Channel 4, Washington, DC, New York, NY
Moderator, numerous public television programs
Commentator, "The Justice Files," Discovery Network
Occasional Columnist, Boston Globe, USA Today, ABA Journal, Los Angeles Times
Honors and Awards
Honorary Degree, Doctor of Laws, University of Rochester
Honorary Degree, Doctor of Education, Merrimack College
Honorary Degree, Doctor of Laws, Fitchburg State College
Honorary Degree, Doctor of Laws, Framingham State College
Honorary Degree, Doctor of Laws, University of the Pacific
Honorary Degree, Doctor of Laws, Thomas M. Cooley Law School
Honorary Degree, Doctor of Laws, Concord Law School
Honorary Degree, Doctor of Laws, Western State University College of Law
Hutchinson Medal for Distinguished Public Service, University of Rochester
National Academy of Television Arts and Sciences Award (Emmy) for hosting "The Constitution: That Delicate Balance"
Six New England Regional Academy of Television Arts and Sciences Awards for "Miller's Court," hosting, and "The Law Works"
Three American Bar Association Gavel Awards for promoting public understanding of the law
Special Recognition Gavel from the American Bar Association for twenty years service in promoting public understanding of the law
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Award for Patient Advocacy, American Psychiatric Association
Iris Award for outstanding television
Charles Dickens Society Award for the Preservation of Literacy from the National Court Reporters Association
Lifetime Achievement Award, Appleseed Foundation for Justice
Chevalier-Sabreur
Dedicatee, New York University Annual Survey of American Law, Volume 67
Albert Podell Distinguished Teaching Award (May, 2010)
Commander of the Order of the British Empire (CBE), (2011)
Presidential Medal from the University of Oregon for distinguished public service.
The Brandeis Medal, University of Louiville, Louis D. Brandeis School of Law (April 2015)
Robert H. Jackson Award, Pepperdine University School of Law (April 2015)
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EXHIBIT A DOCUMENTS SENT TO ARTHUR MILLER
DATE DOCUMENT 1/15/04 Defendants' Motion to Dismiss and Memorandum of Law in Support Thereof 2/23/04 Plaintiff's Objection to Defendants' Motion to Dismiss 4/9/04 Defendants' Reply Memorandum in Further Support of Their Motion to Dismiss the Complaint 5/28/04 Defendants' Submission in Connection with a Potential Conflict of Interest Involving Plaintiff's Counsel 6/4/04 Plaintiff's First Amended Complaint 7/23/04 Order denying Defendants' Motion to Dismiss 1/28/05 Order on Class Certification 10/20/06 Alabama Supreme Court Opinion ruling on three appeals, including class certification 2/25/09 Lead Counsel Agreement (between Lauriello counsel and McArthur Intervenors counsel) 8/15/12 Order on Motion for Class Certification 2/27/15 Alabama Supreme Court Opinion ruling on two appeals, including class certification 8/28/15 Plaintiff Class's Motion for Partial Summary Judgment as to Liability on Plaintiff Class's Suppression Claim 10/8/15 Defendants' Cross Motion for Summary Judgment and Memorandum of Law in Support of Cross Motion and in Opposition to Plaintiff Class's Motion for partial Summary Judgment 10/16/15 Defendants' Motion to Disqualify John Haley, Timothy Francis, Ralph Cook, John Somerville, and the Law Firms of Hare, Wynn, Newell & Newton and Francis [Law], LLC 10/29/15 Plaintiff Class's Combined Partial Summary Judgment Brief on Suppression Claim: Reply Brief and Response in Opposition to Cross Motion 11/11/15 Defendants' Supplemental Opposition to Plaintiffs' Class Motion for Partial Summary Judgment 11/12/15 Plaintiff Class's Response in Opposition to Defendants' Motion to Disqualify 11/24/15 Order denying in part and granting in part Plaintiff Class's Motion for Partial Summary Judgment 1/6/16 Amendment to Scheduling Order 2/16/16 Order denying Defendants' Motion for Partial Summary Judgment With Respect to the Proper Measure of Damages 2/16/16 Order denying Defendants' Motion for Summary Judgment (on the grounds of release) 2/16/16 Order denying Defendants' Motion for Partial Summary Judgment With Respect to Claims of Class Members Who Did Not Submit Claims in the Securities Litigation 2/16/16 Order denying Defendants' Motion for Partial Summary Judgment Regarding Plaintiffs' Misrepresentation Claim DOCUMENT 3312
2/16/16 Order denying Defendants' Motion for Summary Judgment on the Basis of SLUSA Preclusion 2/16/16 Order denying Defendants' Motion for Summary Judgment on Plaintiffs' Suppression Claim (based on litigation privilege) 2/16/16 Order denying Defendants' Motion for Summary Judgment Regarding Plaintiffs' Suppression Claim 2/26/16 Defendants' Motion for Recusal 2/28/16 Plaintiff Class's Response in Opposition to Defendants' Motion for Recusal As of Docket Sheet from Circuit Court 4/21/16 As of Pleadings Index compiled by Somerville, LLC 4/21/16 6/27/16 Stipulation and Agreement of Settlement
5/2816 Plaintiffs Class's Motion for Preliminary Approval of Proposed Class Action Settlement 6/1/16 Order Preliminarily Approving Settlement and Providing For Notices to the Class
DOCUMENT 3313 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 3 DOCUMENT 3313
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION
SAM JOHNSON, and CITY OF ) BIRMINGHAM RETIREMENT AND ) RELIEF SYSTEM, for themselves, ) individually, and on behalf of a class ) of all others who are similarly situated, ) ) Plaintiffs, ) ) vs. ) ) CAREMARK Rx, L.L.C; AMERICAN ) Case Number CV-2003-006630 INTERNATIONAL GROUP, INC., ) NATIONAL UNION FIRE INSURANCE ) COMPANY OF PITTSBURGH, PA.; ) AIG TECHNICAL SERVICES, INC.; ) and AMERICAN INTERNATIONAL ) SPECIALITY LINES INSURANCE ) COMPANY, ) ) Defendants. )
DECLARATION OF JUDGE U. W. CLEMON
I, U. W. Clemon, declare the following:
1. I have been retained by Plaintiffs’ counsel1 to provide an expert opinion in this highly complicated case which is almost as old as this century.2 Specifically, I have been requested to render an expert opinion on the percentage of financial recovery due to Plaintiff’s counsel from
1 Plaintiffs’ class counsel consists of Scott Powell, John W. Haley, Ralph D. Cook, Bruce J. McKee, Brian Vines, and Tempe Smith of the law firm of Hare, Wynn, Newell & Newton, LLP; John Q. Somerville of Somerville, LLC; and J. Timothy Francis of Francis Law, LLC.
2 All things are relative. While cases reach settlement over varying ranges of age, the average time to settlement in federal class action securities cases is a bit over 3.9 years. Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 JOURNAL OF EMPIRICAL LEGAL STUDIES 811, 820 (2010).
1
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the Settlement Fund. 3
2. On consideration of my background and experience, the documents filed in this case, the published decisions of the Circuit Judge Tom King and the Alabama Supreme Court, and documents provided me by the Plaintiffs’ Counsel, it is my expert opinion that the Plaintiffs’
Counsel are entitled to forty percent (40%) of the Settlement Fund as a reasonable attorneys’ fee.
3. My opinion is firmly rooted in the leading Alabama case, Edelman & Combs v.
Law, 663 So. 2d 957, 960 (Ala. 1995) (“In some cases, [a lesser percentage] may be reasonable, based upon the amount of the award and other factors. In other cases, 40%, or even 50% may be justified.”).
A. My Background and Experience
4. I am a graduate of Miles College, Birmingham, Alabama, and of the Law School of Columbia University in the City of New York. While in law school, I interned at the NAACP
Legal Defense and Education Fund (“LDF”), which was probably involved in more plaintiffs’ class actions than any other entity in the country. I graduated from law school and was admitted to practice in the courts of Alabama in 1968. For the next dozen years, I practiced law with the late
Oscar W. Adams, Jr., who subsequently became the first African-American to serve on the
Alabama Supreme Court; and James Keeton Baker, later to become Birmingham’s first African-
American City Attorney. Though a general practice firm, Adams Baker and Clemon specialized
3 The Settlement Fund was created by the Memorandum of Understanding dated April 15, 2016, between the Plaintiffs’ counsel, counsel for Caremark, and counsel for the AIG defendants.
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in civil rights cases, most of which were class actions. I was lead counsel in many of those cases during my dozen years of practice.4
5. I was elected to a four-year term in the Alabama State Senate in 1974. I served as
Chairman of the Rules Committee during my first term, and was serving as chairman of the
Judiciary Committee in the first two years of my second term.
6. I was appointed by President Jimmy Carter and unanimously confirmed by the
United States Senate in 1980 as a federal judge on the United States District Court for the Northern
District of Alabama. I served on the Court for nearly thirty years (29 ½); and as Chief Judge for seven of those years. In my tenure on the federal bench, I presided over many class actions and complex cases. These include Torbert et al v. Monsanto Corp., Case No. 1:01-cv-1407 (N.D. Ala.
2001) ($600 million global settlement and claims oversight for 18,000 plaintiffs); In re Redstone
Arsenal DDT Litigation, Case No. 5:86-cv-5313-UWC (N.D. Ala. 1986) ($15 million settlement and claims oversight); Morgan v. Family Dollar Stores, Inc., Case Nos. 7:01-cv-303-UWC (N.D.
Ala.), affirmed, 551 F.3d 1233 (11th 2008), cert denied, sub nom. Family Dollar Stores, Inc. v.
Morgan, 558 U.S. 816 (2009) (handling of collective action under the Fair Labor Standards Act involving 2500 store managers); In Re Consolidated “Non-filing Insurance Fee, MDL # 1130,
4 Among the cases in which I was lead counsel were Stout v. Jefferson County Board of Education, 419 F.2d 1211 (5th Cir. 1970) (en banc); Swint et al. v. Pullman Standard, 624 F.2d 525 (5th Cir. 1980); McKinstry v. United States Steel Corp., 371 F. Supp. 1045 (N.D. Ala. 1973); Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) ( en banc); Parrish v. Board of Commission of Alabama State Bar Association, 533 F.2d 942 (5th Cir. 1976) (en banc); Burns v. Thiokol Chemical Co., 483 F.2d 300 (5th Cir. 1973); Miller v. Gadsden Board of Education, 482 F.2d 1234 (5th Cir. 1973); Martin v. Thompson Tractor Company, 486 F.2d 510 (5th Cir. 1973); State of Alabama v. Johnny Daniel Beecher, 320 So. 2d 727 (Ala. 1975); Liddell and Billingsley v. State of Alabama, 251 So. 2d 601, 251 So. 2d 254 So.2d 333 (Ala. 1971); Thomas Lee Hines v. State of Alabama, 384 So. 2d 1171 (Ala. Crim. App. 1980); Nunn v. Housing Authority of City of Roosevelt City, 288 So. 2d 774 (Ala. 1974); and Afro-American Students Association of the Univ. of Alabama v. Paul W. “Bear” Bryant, (N.D. Ala., No. 69-422, 1969).
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Case No. Case No. 94-CL-699-N (N.D. Ala.1994) (nationwide class, $100 million class action settlement); AAL High Yield Bond Fund, et al. v. Ruttenberg, et al, (N.D. Ala. No. 2:00-cv-1404-
UWC) ($25 million settlement for the class); In re Liberty National Life Ins. Cases, (N.D. Ala.
Nos. 99-cv-3262, 02-cv-2741); and Lilly M. Ledbetter v. Goodyear, N.D. Ala. Case No. 1:199-cv-
03137, rev’d, 421 F.3d 1169 (11th Cir. 2005), affirmed, 550 U.S. 618 (2007) (subsequently overturned by Congress, The Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. 111–2, S. 181)). I was the successor judge in In re Silicone Gel Breast Implants PL and Lindsay v. Dow Corning, MDL
# 926, (N.D. Ala., Case Nos. 2:92-cv-1000-UWC; 2:94-cv-11558-UWC) (supervision for six-year period of $1 billion settlement, of Claims Administrator and Fund Trustees).
7. Since retiring from the federal bench, I have been a shareholder at the firm of White
Arnold Dowd P.C. in Birmingham. I specialize in complex litigation, mediation, and civil rights cases. I have represented both plaintiffs and defendants. I became (nearly a decade after the case was commenced) one of the lead counsel for the HealthSouth Corporation and ultimately its court- designated settlement counsel in the gargantuan but now resolved case, General Medicine v.
HealthSouth Corp. (Jefferson County Circuit Court, No. 2005-cv-001483). I was appointed by the
District of Connecticut to serve as Special Master in the distribution of a $24 million nationwide class settlement fund. Guiterrez v. John Hancock Insurance Company, (D. Conn., Case No. 3:04- cv-1099). I am one of the seven members of the Plaintiffs’ Steering Committee in reputedly the largest pending nationwide putative class action. See Blue Cross Blue Shield Antitrust Litigation,
MDL 2406, N.D. Ala. Case No. 2:13-cv-20000-RDP; Conway et al. v. Blue Cross-Blue Shield of
Alabama, et al., N.D. Ala. No. 13-cv-20000 RDP. I am a Fellow in the College of Labor and
Employment Lawyers. I am one of the three counsel for the plaintiff class in the pending case,
Alabama Legislative Black Caucus v. State of Alabama, M.D. Ala. No. 13-cv-895; 135 S.Ct. 1257
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(2015). I have resumed, after a 30-year hiatus, my representation of the plaintiff class in Stout v.
Jefferson County, Hoover, and Gardendale Boards of Education (N.D. Ala. Nos. 65-cv-0396; 16- mc-199).
8. I have served as a Distinguished Visiting Professor at the University of Alabama
Law School. I co-authored two law review articles,5 and I frequently lecture at legal seminars and conventions. I was one of the seven plaintiffs in the salary diminution case, which resulted in a substantial increase in the salaries of all federal judges in the nation. Beer et al. v. United States,
111 Fed.Cl. 592 (Fed. Cir. 2013).
9. I have received numerous awards and citations.6
B. The Factual Background
Description of the Case
10. The words “complex” and “arduous” are the beginnings of any capsulized description of this case. The trial judge struggled with it:
Unique is the word which has been used over and over again by all of the lawyers and the Court in describing this case. Upon random assignment of this civil action in 2003, this Court made extensive efforts to locate a case on point. Beginning with the earliest hearings, this Court inquired whether counsel had successfully located a similar decision. This Court has become accustomed to attorneys shaking their heads and remarking in the negative.
5 U.W. Clemon and Bryan K. Fair, Making Bricks Without Straw: the NAACP Legal Defense Fund and the Development of Civil Rights Law in Alabama 1940-1980, 52 ALA. L. REV. 1121 (2001) and U. W. Clemon and Stephanie Y. Moore, Justice Clarence Thomas: The Burning of Civil Rights Bridges, 1 ALABAMA CIVIL RIGHTS AND CIVIL LIBERTIES LAW REVIEW 40 (2011).
6 These include the Judicial Award of Merit from the Alabama State Bar Association; John Pickering Award from the American Bar Association; C. Francis Stradford Award from the National Bar Association; Johnny Cochran “Soaring Eagle” Award from the American Association of Justice; “Drum Major” Award from the Southern Christian Leadership Conference; Howell Heflin Award from the Alabama Trial Lawyers Association; and Paul Robeson Award from the Columbia Law School (as featured in its Spring 2014 magazine article, entitled, “The Equalizer,” at www.law.columbia.edu/magazine/622899/u-w-clemon).
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Over the years as each of my law clerks have embarked on their legal careers, I would instruct the incoming law clerk to locate a case on point. On every occasion, I would receive a response that this case is unprecedented, one of a kind . . . UNIQUE. ….
Lawyers, and most certainly, judges, prefer the luxury of a case on point. In the law we are uncomfortable with precedent setting, one of a kind, unique, first impression cases. However, such is the situation that is before this Court. Therefore, the attorneys, this Court and the Alabama Supreme Court must blaze a new trail so that this case can be labeled by future attorneys and courts as “on point.”
* * *
This case has been active longer than any I have handled. It is undoubtedly the most complex.
* * *
This Court has endeavored to explore and analyze every argument and issue throughout these many years.
2012 Certification Order of Judge Tom King , pp. 32-33 (emphases added).
11. The Alabama Supreme Court has issued two reported opinions in the case, eight years apart.7
Course of and Developments in the Proceedings
12. On January 9, 1998, Plaintiff John Lauriello commenced an action in the Circuit
Court of Jefferson County, Alabama, alleging that Defendant MedPartners, Inc. (predecessor of
Defendant Caremark), a Delaware corporation, and Jefferson County resident Larry R. House committed fraud, fraud on the market, and violated Alabama Code § 3-6-17 (the Alabama
Securities Law) by misrepresenting to the public the current and future financial status of
7 Ex parte Caremark RX, Inc., 956 So.2d 1117 (Ala. 2006) (“Caremark I”), and CVS Caremark Corp. v. Lauriello, 175 So.3d 596 (Ala. 2014) (as modified on denial of rehearing Feb. 27, 2015) (“Caremark II”).
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MedPartners. See Lauriello v. MedPartners, Inc. and Larry R. House, Jefferson County Circuit
Court No. 98-98.8 In combined related actions, this Court, in 1999, certified that case as a class action substantially covering all shareholders of MedPartners and adding additional defendants.9
13. After engaging in early discovery in the 1998 case, the parties entered into negotiations. During these sessions, attorneys for MedPartners (“the Company”) represented to
Plaintiffs’ counsel that the Company was on the verge of bankruptcy, and that $50 million was the coverage limits of its insurance.
14. Based on those representations, the parties subsequently entered into a
Memorandum of Understanding, under whose terms the 1998 case would be settled as a class action for a total of $56 million.10 Transcript of Preliminary Hearing of May 3, 1999, pp. 18-19;
Final Order and Judgment of May 10, 1999, p. 11, ¶ 15. Class members were notified of the proposed settlement prior to the 1999 fairness hearing.
15. At the preliminary hearing on the proposed settlement in the 1998 case, Plaintiffs’
8 Other lawsuits followed in the same year. James “Gusty” Yearout, M. Clay Ragsdale and Steven R. Cauley filed Schacter/Griffin et al. v. MedPartners et al., Civil Action No. CV-98- 00297; Clay Ragsdale and Steve Cauley filed Idlebird et al. v. MedPartners, No. CV-98- 0002671; Sterling L. Deramus filed Kevin and Linda McBride v. House, et al., No. CV-98-05677; Russell Jackson Drake and Roger Kirby filed Bronstein et al. v. MedPartners, No. CV-98-00634; James T. Coyle, William S. Lerach, and Steven G. Schulman filed Blankenship v. MedPartners, No. 98- 05480.
9 Lauriello, Griffin, Idlebird, Bronstein, and McBride are hereinafter referred to as “the 1998 case.”
10 The Blankenship case was not a class action. It was an individual action by a group of Florida physicians. It was settled separately for $9 million.
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counsel argued to the court that the class settlement was the best recovery possible under the circumstances, due to MedPartners’s severely dire financial condition.11 “Attorneys for
MedPartners were present and they did not attempt to correct, clarify, or rebut those statements.”
Caremark I, 956 So.2d at 1120. On June 30, 1999, Plaintiffs’ counsel submitted an affidavit to the
Court in which they stated: “The principal factor considered by plaintiffs’ counsel in determining to settle the [MedPartners securities litigation] for $56 was MedPartners serious financial straits.…” Id.
16. The Court conducted a final fairness hearing on July 9, 1999. In addition to counsel for the parties, United States District Judge H. Dean Buttram attended the hearing. Judge Buttram was at the time one of two fairly new judges on the federal bench - to whom the older judges “re- assigned” cases, often the less desirable ones. A category of such cases was “In re MedPartners
Securities Litigation.” Shortly after he was invested,12 Judge Buttram was assigned those fifteen cases against MedPartners.13 In January 1999, he notified the parties that, in anticipation of the
11 Specifically, Plaintiffs’ counsel argued: “We submit that $56,000,000, which constitutes the entire amount of insurance proceeds available in this action, and in the context of a company which just disclosed in its most recent annual report that it has a negative net worth of more than 1.1 billion dollars is an extraordinary recovery and certainly one that is on its face sufficiently reasonable to warrant the entry of this [settlement] order.” Transcript of Preliminary Hearing of May 3, 1999, pp. 26-27.
12 Judge Buttram was sworn in as a federal judge on October 9, 1998.
13 Rubino, et al. v. MedPartners, Inc., N.D. Ala. No. 2:98-cv-00067 (the lead case); Loomis et al v. MedPartners, N.D. Ala, No. 2:98-cv-00086; Smith, et al. v. House, et al., N.D. Ala, No. CV-98-B-0095; Marsh, et al. v. House, et al., N.D. Ala, No. 2:98-cv-00095; Beuttler, et al. v. MedPartners, N.D. Ala, No. 2:98-cv-00119; Susser, et al. v. House, et al., N.D. Ala, No. 2:98-cv- 00177; ZSA Asset Allocation Fund et al. v. MedPartners, N.D. Ala, No. 2:98-cv-000274; Bishop, et al. v. House, et al., N.D. Ala, No. 2:98-cv-00316; Steiner et al. v. MedPartners, N.D. Ala, No. 2:98-cv-00317; Mizraji v. MedPartners Inc., et al., N.D. Ala. 2:98-cv-00351; Sorrentino v. MedPartners, Inc., et al,, N.D. 2:98-ccv-00358; Rudolph, et al. v. MedPartners, N.D. Ala, No. 2:98-cv-00409; Wisinski, et al. v. MedPartners, N.D. Ala, No. 2:98-cv-00528; and Kosseff, et al.
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settlement of the 1998 case, he would dismiss all of the cases in In re MedPartners Securities
Litigation. As he subsequently related to me personally, he attended the fairness hearing in state court to assure himself that the substantial reduction of his caseload would not be nullified.
17. Plaintiffs’ counsel, at the 1999 fairness hearing, submitted affidavits and made arguments on the fairness and adequacy of the proposed settlement, based on MedPartners’ alleged inability to pay a larger amount due to its imperiled financial condition and limited insurance coverage. “Attorneys for MedPartners were present and heard these arguments but, again, did not respond to, correct, or clarify the statements.” Caremark I, 956 So. 2d at 1121.
18. On the following day, July 10, 1999, the Court gave its final approval for the settlement of the 1998 case for $56 million, with dismissals of the pending state and federal cases.
The certified Rule 23(b)(3), Ala. R. Civ. P., “opt out” class basically covered all persons or entities who purchased MedPartners common stock or call options between October 19, 1996, and January
7, 1998.14 Plaintiffs’ counsel were awarded a 33% recovery ($18,480,000) as a reasonable
v. House, N.D. Ala, No. 2:98-cv-CV-98-G-00558.
14 The Final Judgment defines the class as:
…. all persons or entities… who (i) except those persons or entities otherwise specifically excluded from the definition of the Settlement Class, (a)purchased the common stock of MedPartners (including but not limited to, through open market transactions, mergers or acquisitions in which MedPartners issued common stock, conversion to common stock, exchange for common stock, exercise of stock rights, acquisition pursuant to the Company’s Employee Stock Purchase Plan (“ESPP”), and any other type of transaction (whether public or private) in which a person acquired one or more shares (whether freely tradable, restricted or otherwise) of MedPartners stock in return for the consideration), purchased call options contracts on MedPartners common stock, or sold option contracts on MedPartners common stock, or sold put option contractions on MedPartners common stock, during the period from October 30, 1996 through January 7, 1998….
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attorneys’ fee, and reimbursed $303,211.11 for expenses incurred. Id. The Final Judgment effectively dismissed the 1998 case.
19. Nine months after the first Lauriello case was filed in 1998, MedPartners purchased an unlimited excess coverage policy. The excess coverage policy obliged the insurer to pay any amount awarded as damages in the 1998 case, or the full amount required to settle the case.
Caremark I, 956 So.2d at 1121. The policy was in force and effect during the negotiations of the
1998 case and the subsequent proceedings in that case.
20. The existence of this excess coverage policy was not disclosed to Plaintiffs’ counsel at any time during the negotiations and hearings leading up to the Final Judgment in the 1998 case.
However, there was a vaguely-worded press release and other public documents reflecting
MedPartners’ purchase of some excess coverage.
21. At some point in 2003, current Plaintiffs’ counsel learned of MedPartners’ unlimited excess coverage policy.
22. Plaintiff John Lauriello commenced this second Lauriello action as a class action on October 22, 2003. The Defendants included Caremark (now “Caremark Rx, L.L.C.”), the successor in interest to MedPartners, Inc.; American International Group, Inc. (“AIG”); National
Union Fire Insurance Company of Pittsburgh, PA (“National”); AIG Technical Services, Inc.;
American International Specialty Lines Insurance Company. Plaintiff alleged misrepresentation and suppression. Specifically, he asserted that MedPartners and its insurers misrepresented the amount of insurance coverage in the 1998 case, that they suppressed and failed to disclose the existence of the unlimited excess coverage policy, and that, as a result of the fraudulent conduct
Order and Final Judgment dated July 10, 1999, pp. 2-3.
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of MedPartners, they suffered damages. Sam Johnson, James Finney,15 and the City of
Birmingham Retirement and Relief Systems were added as Plaintiffs and class representatives in
2009.16
23. This case has had more than its share of twists, turns, and tweaks. The McArthur parties have successfully sought to intervene and assert derivative claims against Caremark and
AIG, and others. Defendants have sought to disqualify Plaintiffs’ counsel; and, for that matter, the presiding judge in this case. At one point, Plaintiffs’ counsel sought to disqualify Intervenors’ counsel, and vice versa. Vigorous discovery has been ongoing. Class certification has been achieved after a “rigorous analysis” by the trial judge, and his analysis has been affirmed by the highest court of our State. See 175 So.3d 596 (Ala. 2014).
24. Unlike many securities fraud cases in which the primary means of notice to the class is given by publication, certification notices were mailed by class counsel in May 2015 to each class member at their individual addresses. All members of the class were thereby notified of their right to be excluded from the class.
25. Through it all, over the past thirteen years, the abiding issues were articulated in the original Class Action Complaint: Did Caremark and AIG commit fraud in their dealings with
Plaintiffs’ counsel in the 1998 case, and, if so, what are the damages due to the class?
26. On the eve of the second trial setting, in May 2016, and after extensive and intensive negotiations, the parties executed a Memorandum of Understanding. The amount of the proposed settlement is $310 million. That amount is a substantial portion of the approximately $1 billion in
15 Dr. Finney is now deceased.
16 After many years, John Lauriello has been voluntarily dismissed as a class representative and individual named Plaintiff. He remains a class member.
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damages that Plaintiffs’ experts would have opined at a trial. Given the complications of this case, the uncertainties of any verdict outcome, and the potential for complex, unique issues to be presented on an appeal from a successful verdict, the settlement amount of $310 million represents an excellent outcome for the class. That is, the amount of $310 million is, without question, fair and reasonable to the class.
27. The period for objecting to the proposed was July 22, 2016 – roughly a month and five days after notice to class was given on June 17, 2016. The claims-filing period runs from the date of the notice to September 30, 2016.
C. The Controlling Legal Principles
28. Alabama law has long recognized that a lawyer who creates a monetary fund for the benefit of a defined class is entitled to a reasonable fee from the common fund. See Eagerton v. Williams, 433 So. 2d 486 (Ala. 1983) and Reynolds v. First Alabama Bank of Montgomery, N.A.,
471 So. 2d 1238 (Ala. 1985). Contrary to the law of some other jurisdictions, the Alabama Supreme
Court has unequivocally “[held] that in a case where the plaintiff class prevails and the lawyer’s efforts result in the recovery of a fund, by way of settlement or trial, a reasonable attorney fee should be determined as a percentage of the amount agreed upon as a settlement or recovery at trial.” Edelman & Combs, supra, at 959. Put another way, the Supreme Court has expressly rejected the “lodestar” approach to the determination of a reasonable attorneys’ fee in a common fund case. Id.17 As observed by the renowned Professor William B. Rubenstein – an authority on which the Alabama Supreme Court “has often relied[:]”18
17 See, Annot., Method of Calculating Attorneys’ Fees Awarded in Common-Fund or Common-Benefit Cases, 56 A.L.R.5th 107 (originally published in 1998).
18 Caremark II, 175 So.3d at 609, 610.
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[The common fund fee award] reflects both the provision of legal services and the loan to the class of the attorney’s resources and services. Thus, if a lawyer in private practice can make $400 per hour from clients paying her hourly rates on an on-going basis, it seems somewhat obvious that it might take $500 per hour for that lawyer to abandon that practice and begin pursuing contingent fee cases instead. Given the higher risk of not getting paid, and the loan of the attorney’s resources and services to the class, there must be some higher reward when a payday arrives.
William B. Rubenstein, 5 NEWBURG ON CLASS ACTIONS § 15.73, pp. 251-52 (5th ed. 2015).
29. In determining a reasonable fee for Plaintiffs’ counsel in a common fund case, the following factors may be considered by the Court:
(a) the nature and value of the subject matter of the employment; (b) the learning skill and labor requisite to its proper discharge; (c) the time consumed; (d) the professional experience and reputation of the attorney; (e) the weight of his responsibilities; (f) the measure of success achieved, (g) the reasonable expenses incurred; (h) whether a fee is fixed or contingent; (i) the nature and length of a professional relationship; (j) the fee customarily charged in the locality for similar legal services; (k) the likelihood that a particular employment may preclude other employment; and (l) the time limitations imposed by the client or the circumstances.
Van Schaack v. AmSouth Bank, 530 So. 2d 740 (Ala. 1986), citing Peebles v. Miley, 439 So. 2d
187 (Ala. 1983).
30. The Peebles/Van Schaack criteria are sometimes overlapping, and “not all the criteria will be applicable” in a particular case. Van Schaack, at 749. “Indeed, there would hardly ever be a case where the [determination] of attorney’s fees brought into play every criterion.”
Graddick v. First Farmers & Merchants National Bank of Troy, 453 So. 2d 1305, 1311 (Ala.
1984).
D. Assessment of the Case Under the Peebles/Van Schaack Criteria
31. This case is more than the ordinarily complex, but run-of-the mill, securities fraud case. The 1998 case was the quintessential securities fraud case. This 2003 case involves not simply the securities fraud of Caremark’s predecessor, but even more - a fraud perpetrated on the
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class itself! It is indeed a most “unique” case, as recognized and described by the trial court.
32. This most unique case required an exceptional level of legal training, skill, and labor. Class counsel consistently exhibited that exceptional degree of training, skill, and experience. It was shown, for example, in the highly persuasive 162 pages of their 2012 brief in support of class certification. Most importantly, it is reflected in their decision to retain Professor
Rubenstein as one of their expert witnesses. He is the reigning preeminent authority on class actions in the United States.
33. Plaintiffs’ counsel have spent thirteen years, and God only knows how many hours, in the representation of the class. In the thirteen-year history of the case, Plaintiffs’ counsel prepared and filed 62 motions, as of March 18, 2016. They propounded seven separate sets of
Interrogatories and Requests for Production and responded to equally vigorous discovery by the
Defendants. Plaintiff’s counsel took twenty-eight depositions of the Defendant’s witnesses; and defended the depositions of twenty-two witnesses testifying on behalf of the class. Over one hundred twenty filings were made by Plaintiffs’ counsel. They appeared in the trial court for conferences and hearings on thirty eight separate occasions. The trial judge was moved to write:
“Counsel have represented their clients’ interests to the fullest. Furthermore, counsel have comprehensively challenged this Judge through their briefing and poignant oral arguments.” 2012
Certification Order, p.33.
34. In its 2012 order granting class-action certification, the trial court made the following observations regarding class counsel:
In opposition of proposed class counsel, Defendants have raised every possible roadblock and issue to endeavor to influence this Court to find proposed class counsel inadequate, as such is their duty. In their endeavor to have proposed class counsel disqualified, Defendants know full well that if this Court rules with them
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on this issue Defendants will have gained a victory without having to adjudicate this case before an Alabama jury.
Litigation is combative, particularly where the damages sought may exceed Three Billion and No/100 ($3,000,000,000.00) Dollars. These plaintiff attorneys [sic] have labored thousands of hours since 2003 seeking to represent and protect this proposed class, and have done so without remuneration for their time and monumental expenses incurred. . . . This civil action spanning into its tenth year is so complex and replete with filings, depositions and rulings, it is a virtual certainty that no lawyer and/or law firm would now invest the time and incur the expense to represent this class.
Caremark II, 175 So. 3d at 602.
35. Plaintiffs’ counsel easily rank among the most outstanding lawyers in the nation.
36. In existence for more than a century, the law firm of Hare, Wynn, Newell &
Newton, LLP (“Hare Wynn”), enjoys an unblemished national reputation for effective lawyering, integrity, and legal excellence. It regularly represents individuals, businesses, governmental entities, and the United States in nationwide litigation. The firm is posed in Tier One in Products
Liability-Plaintiffs in U.S. News and World Report and Best Lawyers’ Best Law Firms rankings.
The National Law Journal named the firm to its prestigious “Plaintiff’ Hotlist” of law firms in
2011. Every partner in the firm has an AV Peer Review rating by Lexis Nexis Martindale Hubbell.
37. Scott A. Powell of Hare Wynn became the youngest president of the International
Society of Barristers in 2007. A graduate of Cumberland Law School, he is a Fellow of the
American College of Trial Lawyers. In 2009, he was selected as the National Whistleblower
Lawyer of the Year. Mr. Powell served as co-Lead Counsel in oil royalty litigation in eastern
Texas, which resulted in the highest recovery (at the time of its resolution) on behalf of the United
States in the history of the False Claims Act. He is well-seasoned in the handling of class action litigation involving complex legal issues, commercial litigation, personal injury, and wrongful death cases.
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38. John W. Haley of Hare Wynn is probably best known for his $2.8 billion judgment against Richard Scrushy. It is one of the largest verdicts against an individual in the nation’s jurisprudence. A graduate of Cumberland Law School, Mr. Haley was the Lead Counsel in a class action alleging overcharges associated with mortgage foreclosures. He represented over 3,000 pharmacists in a collective action under the Fair Labor Standards Act against CVS. He was editor of the Alabama Trial lawyers Journal for over ten years; and he was later elected as its President.
39. Bruce J. McKee of Hare Wynn, a graduate of the Law School of Columbia
University in the City of New York, served as a staff attorney for the Alabama Supreme Court for several years. He later became a Professor and Assistant Dean at Cumberland Law School. He joined Hare Wynn in 1989. While his has primary responsibility for the firm’s appellate work, he researches and writes briefs for the firm at the trial court level. His expertise is apparent from the documents filed by the firm in this case.
40. Judge Ralph D. Cook has spent much of his life (24 years) in black robes. A graduate of Howard Law School, he first was elected as a District Judge in the Bessemer Division of the Circuit Court of Jefferson County. He was then appointed to the Circuit Court in that
Division; and subsequently elected to that position. In 1993, he became only the second black in
Alabama history to be appointed to the Alabama Supreme Court where, as in his prior positions, he was an outstanding and highly-regarded jurist for eight years. Judge Cook was Dean and Law
Professor at Miles Law School for a quarter of a century. He has received the Alabama State Bar’s
Judicial Award of Merit, and the Alabama Appleseed’s Brewer-Torbert Award. He has been of counsel to the Hare Wynn firm since 2001, with a two-year hiatus while he served as the
Birmingham City Attorney.
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41. The late James L. (“Jim”) North was a bright star in the legal profession. Following his graduation from the University of Virginia Law School, he clerked for the venerable Supreme
Court Justice Hugo L. Black. He was a founding partner of the law firm of North, Haskell,
Slaughter, Young & Lewis and the founder of James L. North & Associates. He served as President of the Alabama State Bar Association, and Judge on the Alabama Court of the Judiciary. He was a Fellow of the American Bar Association and of the International Society of Barristers. In 2010, he was given the Lifetime Achievement Award by the Birmingham Bar Association.
42. J. Timothy (“Tim”) Francis was a partner of Jim North at North Associates, LLC.
He has extensive experience in securities and the representation of plaintiffs in individual and class action cases. He was lead counsel for the class of retirees of the Lloyd Noland Foundation in
Sellers, et al. v. Tenet Healthcare, Inc. (N.D. Ala. No. CV-03-cv-0457), and counsel for the class of bondholders in Martin, et al. v. Southtrust Bank, et al., (Jeff. Co. Circuit Court No. 2001-
007367). He was class counsel for a nationwide class of bond purchasers in Cromeans. Et al. v.
Morgan Keegan & Company, et al. (W.D. Mo. Case No. 12-cv-04269). He also effectively represented the class in a case before me while I was on the bench, AAL High Yield Fund, et al. v.
Ruttenburg, et al. (N.D. Ala. No. 2:00-cv-1404). He is a graduate of the University of Alabama
Law School.
43. John Somerville was a Hugo Black Scholar and Editor-in-Chief of the Law Review of the University of Alabama Law School. He clerked for the late Senior Judge Seybourn H. Lynne of the Northern District of Alabama. He was counsel for the plaintiffs in the In re ALFA
Corporation Shareholders Litigation, (Del. Chancery Court, New Castle County, Case No. 3104-
VCP), which resulted in a global settlement. He was appointed by the Court as the co-Lead Counsel in the $2.8 billion derivative action against HealthSouth’s founder and former CEO, Richard
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Scrushy. He has prosecuted and defended class actions and other complex commercial and business cases.
44. The weight of the responsibilities undertaken by Plaintiffs’ counsel was very substantial. There were public documents reflecting the excess coverage for the 1998 case. So, to overcome the Defendants’ dispositive motions, Plaintiffs’ counsel had to make a showing of plausible and controvertible facts. That task was much easier said than done. Plaintiffs’ counsel did just that.
45. In terms of the success achieved by Plaintiffs’ counsel, the $310 million settlement fund speaks for itself.
46. According to the records and information provided to me, Plaintiff’s counsel have expended roughly $3 million in costs and expenses of this case. This seems very reasonable on its face, given 13 years of hard litigation against some of the major defense firms in the country.
47. As noted earlier, this common fund case is contingent for purposes of determining a reasonable attorneys’ fee for Plaintiffs’ counsel. Plaintiffs’ counsel ran the very substantial risk of ultimately making no recovery and losing all their extensive investment of time and expenses.
48 In the State of Alabama, over the last ten years, the usual contingency rate has escalated from 33% to 40%. This declaration is based on my personal experience, my law firm’s practice, and interactions with plaintiff lawyers throughout the State. While attending the most recent annual convention of the Alabama Bar Association a few weeks ago, I re-affirmed the extant practice by talking with several lawyers from Huntsville to Mobile. As the presiding Judge in
Torbert et al v. Monsanto Corp. (N.D. Ala. No. 01-cv-1407), I personally know that the lawyers in those cases received 40% of the $600 million global settlement. The case was less than three
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years old; and the legal services provided in that case pale in comparison to services provided in this case.
49. None of the Peebles/Van Schaack factors weigh against the awarding of a 40% contingency fee in this unique case.
50. Former MedPartners Vice President Clete Walker, claiming to be a member of the class, timely filed an objection to the proposed settlement on July 22, 2016. Mr. Walker asserts that the class notice period was so short that it deprived him of his due process right to present his claim, and that the 40% contingency fee sought by Plaintiff’s counsel is unreasonable. In support of the latter objection, Mr. Walker cites the Peebles case, which I have addressed earlier in this
Declaration.
51. Assuming but not admitting or conceding that Mr. Walker has standing in this case
(i.e., that he is a member of the certified class), it is my view that there is no factual or legal basis for his due process claim. The “notice” required by the due process clause of the Fourteenth
Amendment to the Constitution, must be “reasonable under the circumstances.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652 (1950). The amount of time between the publication of class notice of a proposed settlement and the deadline for objections is subject to the trial court’s discretion, so long as the due process clause is not offended. United States v.
Alabama, 271 F.App’x 896, 900, 901 (11th Cir. 2008). The period between the notice and the deadline for objections is a factual determination to be made by a court on a case-by-case analysis.
Woodward v. Andrus, No. CIV.A.03-2098, 2010 WL 1936154, at *5 (W.D. La. May 12, 2012).
As Mr. Justice Frankfurter framed it: “due process cannot be imprisoned within the treacherous limits of any formula.” Joint Anti-Facist Refugee Commove. McGrath, 341 U.S. 123, 162 (1951)
(Frankfurter, J., concurring).
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52. The factual circumstances surrounding Plaintiffs’ counsel June 17th notice to members establish that Mr. Walker’s due process rights have not been violated. Mr. Walker obviously received the most recent notice to the class in sufficient time for his filing of objections.
The June 17th notice was the second class notice he has received in the last two years; and between the two notices, he chose not to opt-out of the class. From the time that Mr. Walker was notified that the case had been certified, he knew that either at trial or following a settlement, he would be required to come forward with proof of his membership in the class. Finally, Mr. Walker still has more than two months within which to file his claim.
53. My opinion that Mr. Walker has not been denied due process is based on my own experience and training, my participation in legal conferences and seminars, and the published decisions of other trial judges and appellate courts.19
Conclusion
54. Based on Alabama law and the considerations set forth herein, I conclude that, despite the enormity of the $310 million common fund created by the settlement, Plaintiffs’ counsel are entitled to 40% of that amount. See, e.g., Edelman & Combs v. Law, 663 So. 2d 957,
960 (Ala. 1995). They have rendered enormous services to the Plaintiff class.
19 For example, in AAL High Yield Bond Fund, et al. v. Ruttenberg, et al, (N.D. Ala. No. 2:00-cv- 1404-UWC) (Doc. 24), I approved the publication of class notice 34 days before the deadline for objections. In Miller v. Republic Nat’l Life Ins. Co., 559 F.2d 436, 429, 430 (11th Cir. 1977), the Eleventh Circuit noted that “[t]here were almost four weeks between the mailing of the notice and the settlement hearing.” A 19-day period was found to be sufficient notice in Griffin v. International House of Pancakes, 513 F.2d 114, 121 (8th Cir.1975); a 26-days’ period was approved in Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977). A thirty days’ period was approved in Manguin v. Florida E. Coast Ry. Co., 318 F.Supp. 720, 733-34 (M.D. Fla. 1970), aff’d, 441 F.2d. 728 (5th Cir. 1971). See also New England Health Care Employees Pension Fund, 429 F.3d 935, 940, 946-947 (10th Cir. 2005) (approving a 32-day opt–out period).
20
DOCUMENT 3313
55. The singular timely objection to the settlement is neither supported by the circumstances and facts of the case nor the controlling law and applicable legal principles.
Pursuant to 28 U.S.C. § 1746, I hereby declare that the contents of this Declaration are true and correct, to the best of my knowledge, information, and belief.
Dated: July 27, 2016
/s/ U.W. Clemon U.W. Clemon
21
DOCUMENT 3314 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 4 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314
Exhibit A DOCUMENT 3314
Scott Powell
Having already established a reputation as a trial lawyer with another firm, Scott Powell came to Hare, Wynn, Newell & Newton as a full partner in 1986. Since that time, his diverse practice has taken him throughout the states of Alabama, Arkansas, and Missouri as well as Texas, Tennessee, Ohio, Georgia, and Louisiana. Among the types of cases he has handled include litigation under the False Claims Act for qui tam plaintiffs, class action litigation involving complex legal issues, commercial litigation, as well as personal injury and wrongful death. He graduated cum laude in 1978 from the Cumberland School of Law.
Most recently Mr. Powell has been appointed co-lead plaintiff counsel in the In re Syngenta AG MIR 162 Corn Litigation multi-district litigation (MDL 2591) by Judge John Lungstrum of the United States District Court for the District of Kansas. Mr. Powell and his three co-leads are the only lawyers authorized to control, prosecute, and settle the thousands of lawsuits filed against Syngenta which are part of the federal multi-district litigation. He has also served as lead counsel in the historic case of Schafer v. Bayer Cropscience. Rice farmers throughout the country suffered devastating market losses as a result of the contamination of the United States’ rice supply by genetically modified organisms produced by Bayer Cropscience. The Schafer trial took place in Lonoke County, Arkansas for eleven rice- farming families. The jury returned a verdict in their favor for more than $48 million dollars. The plaintiffs challenged the constitutionality of the punitive damages in that case and the trial court declared the punitive damage cap unconstitutional and the Supreme Court of Arkansas affirmed the judgment in its entirety. In addition to the Schafer representation, Mr. Powell served as lead counsel for the firm in representing more than three thousand rice farmers throughout the rice belt and was one of the lead counsel negotiating an eventual settlement with Bayer Cropscience for those clients of $750,000,000.
In 2013, Scott Powell was appointed to the Plaintiff Steering Committee in re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391) by U.S. District Judge Robert L. Miller who is presiding over the national Multi-District Litigation pending in the Federal District Court for the Northern District of Indiana. His position on the PSC involves working alongside other lead counsel to develop discovery and trial procedure, review thousands of key documents, and pursue the best possible outcome to benefit plaintiffs nationwide who have suffered injuries related to their defective Biomet M2A Metal-on-Metal hip implants.
Mr. Powell served as co-lead counsel in the oil royalty litigation in eastern Texas. At the time of its resolution, it was the highest recovery on behalf of the United States in the history of the False Claims Act. DOCUMENT 3314
Scott is Past President of the Alabama Trial Lawyers Association and Past President of the International Society of Barristers. He completed his term as President of the Barristers in March 2007. He served as Commissioner of the Judicial Compensation Commission from 2001-2005; is a member of the United States Magistrate Judge Selection Committee for the Northern District of Alabama; a Trustee of the Eleventh Circuit Historical Society, member of the United States Supreme Court Historical Society and state chair. He currently serves as Chairman of the Cumberland Law School Advisory Board. He is also a member of the Birmingham Bar Association, the American Judicature Society, the American Association for Justice, the American Bar Association and the Alabama Law Institute.
He is a Fellow, American College of Trial Lawyers; Fellow, International Society of Barristers; Fellow, American Bar Foundation; Fellow, Alabama Bar Foundation, and is named to The Best Lawyers in America in three different practice areas. He was named Lawyer of the Year by Taxpayers Against Fraud in 2009 and was selected as 2013 Alabama Litigator of the Year by Benchmark Litigation.
John Haley
Mr. Haley was born in a section of Birmingham known as Pratt City. He attended public schools and graduated from Ensley High School. He wanted to broaden his life experiences and attended Tulane University. After graduation, he served in the U.S. military and then completed his legal training at Cumberland School of Law where he graduated Magna Cum Laude.
Mr. Haley and two other young lawyers joined together to form the law firm Noojin, Haley & Ashford in 1975 with twelve clients and a substantial loan. Over the next five years, he handled anything that came through the door–divorces, DUIs, collections, involuntary commitments, criminal matters, bankruptcy, probate and tort cases. Handling such a variety of cases gave him a breadth of legal experience that too many young lawyers never experience.
In 1980, Noojin, Haley & Ashford became part of Hare Wynn. For the next fifteen years, Mr. Haley handled all types of personal injury and wrongful death cases, with a few business matters thrown in to keep things interesting. Mr. Haley likes the courtroom and tried hundreds of cases. He also handles the appeals of most of his cases and has argued before the Supreme Court of Alabama and the Alabama Court of Civil Appeals on numerous occasions.
Mr. Haley’s practice changed in the late 1990s when he began to handle more and more business matters. He sued BP Oil on behalf of dealers in Alabama, Tennessee and North Carolina for discriminatory pricing, and that case was followed with a similar claim against Shell Oil by most DOCUMENT 3314
of its dealers in Birmingham. CVS was the defendant in a collective action for violating the Fair Labor Standards Act that involved over 3,000 pharmacists. He was lead counsel in a class action alleging overcharges associated with mortgage foreclosures. He litigated with Caremark for over four years to recover contract benefits for a former executive. At trial, the jury returned punitive damages against Caremark based upon representations made by its CEO, Richard Scrushy. In one of his most publicized cases, John was co-lead counsel in a derivative action on behalf of HealthSouth Corporation against its former CEO, Richard Scrushy, its investment banker, UBS, and others, arising from the multi-billion dollar fraud at HealthSouth from 1996 until March of 2003.
Mr. Haley was Editor of The Alabama Trial Lawyers Journal for over ten years and was later elected its President. He was elected a member of the International Society of Barristers in 1994. He has served on the Board of Trustees for the Presbyterian Home for Children for over ten years, and has also served on the Board of Directors for Spring Valley School helping students with learning disabilities.
Bruce McKee
Mr. McKee began his law practice in his hometown of Florence, Alabama. He then served as the central staff attorney for the Alabama Supreme Court for several years. While living in Montgomery, he also served as a professor of law at the Thomas Goode Jones School of Law of Faulkner University. Mr. McKee moved to Birmingham in 1986 to take a full-time teaching position at the Cumberland School of Law of Samford University, where he later served as the assistant dean. In 1989, he joined the Hare Wynn firm, but continued to teach civil procedure as an adjunct professor at Cumberland for the next 17 years.
Within the Hare Wynn firm, Mr. McKee has the primary responsibility over most of the firm’s appellate work. At the trial court level, his role is to research and write briefs and motions and pleadings that raise unique or difficult issues, especially on subjects relating to procedure, jurisdiction, and tort law theory. He also devotes much of his time to researching issues and investigating relevant matters for cases the firm is considering.
Mr. McKee has always been active in a wide variety of professional law-improvement organizations, in addition to his law school activities. For example, he was for 15 years a member of the Uniform Law Commission, whose stated mission is to provide the states with non-partisan, well-conceived, and well-drafted legislation that brings clarity and stability to critical areas of the law. He also serves on several Alabama Law Institute drafting committees that prepare proposed legislation for Alabama. Mr. McKee has served on several Alabama DOCUMENT 3314
Supreme Court rules advisory committees, as well. In the role of advocate, he has, for nearly 20 years, worked on or with the amicus curiae brief committee of the Alabama Association for Justice (formerly, Alabama Trial Lawyers Association).
Ralph Cook
Ralph D. Cook is of counsel with the law firm of Hare, Wynn, Newell & Newton, LLP in Birmingham, Alabama. Previously, he was the city attorney for Birmingham from January 2014 to September 2015. He was of counsel with Hare Wynn from January 2001 to December 2013.
Justice Cook, the second of three children of Joe and Nannie Cook, was born in Birmingham, Alabama. Justice Cook was educated in the public schools of Jefferson County, Alabama. After receiving a Bachelor of Science degree at Tennessee State University in Nashville, Tennessee, Justice Cook received his Juris Doctor degree from Howard University School of Law in Washington, D.C.
Justice Cook served in the Alabama Judiciary for twenty-four years. In 1981, he was appointed circuit judge in the Bessemer Division of the Tenth Judicial Circuit. Justice Cook served in the domestic relations division of the court until 1984 and served in the civil division of the court until 1993. Prior to his appointment to the circuit court, he was elected district court judge and served for over four years in the Family Court of Jefferson County, Bessemer Division. He was appointed Associate Justice of the Supreme Court of Alabama in 1993, and elected to this position in 1994. He served on the Supreme Court of Alabama until January 2001.
Justice Cook also served as Dean and Law Professor at Miles Law School for twenty-four years. Justice Cook has been recognized for his work and has received awards from professional associations, community organizations, colleges and churches throughout the State of Alabama. He is the recipient of the Alabama State Bar Judicial Award of Merit for 1996. He is a member of the Alabama State Bar Association, California State Bar, National Bar Association, Birmingham Bar Association, Bessemer Bar Association and a fellow in the American College of Trial Lawyers. He served as President of the Alabama Lawyers Association, President of the Alabama Association for Justice and is an elected member of the American Law Institute. In 2010, Justice Cook was presented with the Heart of an Eagle Award by the Birmingham Council, Boy Scouts of America. He was also honored by the Metro-Birmingham Branch of the NAACP in 2011, received Alabama Appleseed’s Brewer-Torbert Award in 2012, and was inducted into the Alabama Academy of Honor in 2012. DOCUMENT 3314
As a charter member of the West Jefferson Kiwanis Club in Bessemer, he served as its charter president and as a member of the board of directors. He also served as Lieutenant Governor, Alabama District of Kiwanis International, from 1991 to 1992. He served as President of the Kiwanis Club of Birmingham for 2014-2015. He serves or has served on the Board of Directors of the Community Foundation of Greater Birmingham, Salvation Army, Alabama Civil Justice Foundation, Bessemer Chamber of Commerce, Bessemer YMCA, Kiwanis Club of Birmingham, St. Vincent’s Foundation, Alabama Power Company, Birmingham Civil Rights Institute, and the Birmingham Business Alliance. He is a member of the Quarterback Club and serves as Chairman of the Board of Trustees, Birmingham Art Museum.
Brian Vines
Mr. Vines is admitted to the Kentucky and Alabama bar and has represented individuals, small businesses, states, and Fortune 100 companies in a broad range of litigation. He joined the firm in 2011 after working for two years at one of the largest law firms in the Southeast.
He graduated from Auburn University summa cum laude with a degree in Civil Engineering. While at Auburn, he was involved in numerous campus activities and was selected as a member of Spade Honorary.
After working in San Francisco as an engineer for one of the world’s largest oil companies, he attended the University of Virginia School of Law. At Virginia, Mr. Vines served on the Managing Board of the Virginia Law Review and was elected to the Order of the Coif, an honor reserved for those who graduate in the top ten percent of their class. Prior to entering private practice, Brian served as a judicial law clerk to the Honorable William H. Pryor Jr. on the United States Court of Appeals for the Eleventh Circuit.
His practice has ranged from representing individuals and local businesses in Alabama State Courts to representing the State of Kentucky. Mr. Vines has represented Plaintiffs in a broad range of matters including copyright and trademark disputes, commercial disputes, personal injury matters and class actions. Mr. Vines, along with several other Hare Wynn lawyers and the Kentucky Attorney General’s office, secured a $25 million settlement for the commonwealth in a consumer protection case. Recently, Mr. Vines was part of a team of Hare Wynn lawyers that secured an $8 million verdict in a nursing home case in Kentucky.
Besides the practice of law, Mr. Vines enjoys spending time with his family. Brian and his wife, Sarah Beth, are the proud parents of three sons and one daughter. DOCUMENT 3314
Tempe Smith
Tempe Smith joined Hare Wynn in 2015 and works primarily in the areas of class action and mass tort litigation. Prior to joining Hare Wynn, Tempe clerked for the Honorable James H. Hancock, the Honorable R. David Proctor, and the Honorable John E. Ott on the District Court for the Northern District of Alabama.
Tempe is a graduate of the University of Alabama School of Law. While at Alabama, she served as Chair of the John A. Campbell Moot Court Board, Articles Editor and Managing Board Member of the Alabama Law Review, a member of the Jessup Moot Court Team, and as Associate Justice on the Honor Court. She was selected for membership in the Bench and Bar Legal Honor Society and was awarded the Society’s Outstanding Senior Award. Tempe was a Hugo L. Black Scholar and was elected to the Order of the Coif, an honor reserved for those who graduate in the top ten percent of their class.
DOCUMENT 3314
Exhibit B DOCUMENT 3314
J. TIMOTHY FRANCIS
1. J. Timothy Francis is a 1984 graduate of the University of Alabama School of Law.
Since that time, his practice has consisted primarily of the conduct of complex civil litigation including class actions. Mr. Francis was an associate and then partner in James L. North &
Associates from 1987 through September 7, 2014. At that time, Mr. Francis established Francis
Law, LLC.
2. Mr. Francis is admitted to practice law in (i) all state courts of Alabama, (ii) in the
United States District Courts for the Northern and Middle Districts of Alabama, (iii) the United
States Court of Appeals for the Eleventh Circuit, and (iv) the United States Supreme Court. He is currently admitted pro hac vice in (i) the United States Court of Appeals for the Eighth Circuit,
(ii) the United States District Court for the Western District of Missouri, and (iii) the United States
District for the Western District of Tennessee.
3. Mr. Francis has extensive experience in securities and other business litigation, primarily representing plaintiffs in both individual cases and class cases.
4. With respect to class actions, Mr. Francis was among those named class counsel for a nationwide class of purchasers of bonds issued by Just For Feet, Inc. in AAL High Yield Fund, et. al. v. Ruttenberg, et al., Case No.: CV-00-C-1404-S, United States District Court for the
Northern District of Alabama.
5. Mr. Francis was named class counsel for the class of bondholders in Martin, et al. v. SouthTrust Bank, et al., Case No. CV 01-7367, Circuit Court of Jefferson County, Alabama.
6. Mr. Francis was named class counsel for the class of retirees of the Lloyd Noland
Foundation in Sellers, et al. v. Tenet Healthcare, Inc., United States District Court for the Northern
District of Alabama, Case No. CV-03-PWG-0457-S. DOCUMENT 3314
7. Mr. Francis was named class counsel for a nationwide class of purchasers of bonds issued by the City of Moberly, Missouri in Cromeans, et al. v. Morgan Keegan & Company, et al.,
Case No. 2:12-CV-04269-NKL, United States District Court for the Western District of Missouri.
8. With respect to business and securities litigation on behalf of individuals, Mr.
Francis successfully tried cases against, among others, Arthur Young & Company, Bear Stearns,
Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Raymond James Financial Services, Inc., Sterne
Agee & Leach, Morgan Keegan & Company, among others. He has prosecuted and settled business and securities cases against, among others, Merrill Lynch, Prudential Securities, Salomon
Brothers, Citigroup, American Express Financial Advisors, Arthur Andersen, Morgan Keegan,
Deloitte & Touche, Compass Bank, SouthTrust Bank, Ernst & Young, Bank of Alabama, and
Regions Bank, among others.
9. Mr. Francis has also successfully prosecuted and tried personal injury actions, including the trial of Parker v. Blackmon, Case No. CV-06-4264-HSL, Circuit Court of Jefferson
County, Alabama, where an $8 million judgment was obtained on behalf of his client.
DOCUMENT 3314
Exhibit C DOCUMENT 3314
S O M E R V I L L E , L L C John Q. Somerville
300 Richard Arrington, Jr. Blvd. North Suite 710 Birmingham, Alabama 35203 205-871-2183
Founded in 2001, the firm, Somerville, LLC (formerly known as Galloway & Somerville,
LLC), represents both plaintiffs and defendants. The firm has been involved in cases and matters throughout the State of Alabama and the Southeast region, but the firm has also been involved in cases pending in other jurisdictions such as Delaware, Colorado and Pennsylvania. Matters that the firm has been involved in include class actions, complex business litigation, and derivative and shareholder litigation, including cases alleging violations of federal and state securities and consumer laws. The firm has also been hired in the past to oversee and coordinate board of director investigations of alleged corporate wrongdoing.
John Somerville and the firm were appointed co-lead derivative counsel in In re
HealthSouth Corporation Derivative Litigation, Circuit Court of Jefferson County, Alabama, No.
CV-02-5212, where the Court entered a judgment against Richard M. Scrushy for $2.89 billion.
Over three hundred million dollars has been recovered on behalf of HealthSouth Corporation in that derivative litigation. Somerville also served as counsel for plaintiffs in the shareholder litigation: In re ALFA Corporation Shareholders Litigation, originally filed in Chancery Court of the State of Delaware in and for the New Castle County, No. C.A. No. 3104-VCP. That case was ultimately resolved in a global settlement in the Circuit Court of Montgomery County,
Alabama. On August 15, 2012, the Firm was appointed class counsel in Lauriello, et al. v. CVS DOCUMENT 3314
Caremark, et al., filed in the Circuit Court of Jefferson County, Alabama, CV-03-6630, a class action against MedPartners and AIG.
Mr. Somerville graduated with a B.A. from the University of the South (Sewanee) and earned his J.D. at the University of Alabama School of Law. In law school, he was a Hugo
Black Scholar, a recipient of the Dean Thomas W. Christopher Award, and he served as Editor in
Chief of the Alabama Law Review. After law school, he served as law clerk to Senior U.S.
District Court Judge Seybourn H. Lynne from 1991 to 1993 and he taught Trial Advocacy at the
University of Alabama School of Law for several years. Before law school, Mr. Somerville served as speechwriter to U.S. Senator Howell T. Heflin from 1986 to 1988. Mr. Somerville is from a family of lawyers. His two times great grandfather was a justice on the Supreme Court of
Alabama and started the University of Alabama School of Law in 1872. Mr. Somerville's brother, father, grandfather and great grandfather were all attorneys. Mr. Somerville is proud of this tradition and works hard in his representation of clients to uphold it.
Mr. Somerville has extensive trial and arbitration experience representing both plaintiffs and defendants. He has both prosecuted and defended class actions and other complex commercial and business cases since he first started practicing law. One of the first cases he worked on as an attorney was a pro bono case in which he was appointed to represent prisoners who wished to exercise their First Amendment rights of freedom of religion. Working with those prisoners, he filed that case as a class action in federal court and it was ultimately certified as a class action. Also as a young lawyer, Mr. Somerville represented Shell Oil Company in connection with a nationwide class action involving polybutylene pipe. This experience representing both plaintiffs and defendants has served him well throughout his practice. DOCUMENT 3314
Mr. Somerville is licensed to practice in the state of Alabama, the United States District
Court for Alabama (Northern, Middle and Southern Districts), and the Supreme Court of the
United States of America, as well as having been admitted to other federal appellate courts. He and his wife, Holly, have two children.
DOCUMENT 3314
Exhibit D DOCUMENT 3314
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
SAM JOHNSON, et al.,
Plaintiffs, v. Case No. CV-03-6630
CAREMARK RX, LLC, et al.,
Defendants.
SUMMARY OF EXPENSES
Total Expenses $2,585,932.71
SHARED Experts/Consultants $1,732,332.87 Court Reporters/Transcripts $56,921.57 Notice (re class cert) $116,169.77 Special Master/Mediation $26,895.00 Total $1,932,319.21
HWNN Photocopies/Document fees $69,723.45 Postage $4,328.41 Filing Fees $616.50 Legal Research $67,891.44 Meals, Hotels, Transportation $177,450.55 Lit Support Supplies/Contract Labor $18,491.04 Interest (through 9/30/2016) $78,502.97 Mediation $14,141.67 Court Reporter and Transcripts $41,431.93 Total $472,577.96
DOCUMENT 3314
FRANCIS LAW, LLC Photocopies/Document fees $7,623.01 Postage $3.79 Meals, Hotels, Transportation $30,039.10 Interest (through 9/30/2016) $17,133.28 Court Reporter and Transcripts $4,647.05 Total $59,446.23
JLN & ASSOCIATES Photocopies/Document fees $2,899.80 Postage $390.22 Filing Fees $13.05 Legal Research $48.00 Meals, Hotels, Transportation $12,654.93 Accounting Services/Haynes Downard $900.00 Court Reporter and Transcripts $198.90 Total $17,104.90
JQS, LLC Photocopies/Document fees $32,187.13 Postage $621.44 Filing Fees $44.15 Legal Research $5,070.89 Meals, Hotels, Transportation $49,052.30 Lit Support/Contract Labor $17,508.50 Total $104,484.41
2
DOCUMENT 3314
Exhibit E DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 5/1/2003 0 Postage 4061.01 74.49 5/1/2003 0 Postage 4061.01 0.39 10/6/2003 0 Xerox Expense-In House 4080.01 1.25 10/17/2003 0 Xerox Expense-In House 4080.01 18.75 10/20/2003 0 Xerox Expense-In House 4080.01 87.50 10/22/2003 44177 Jefferson County Circuit Court Filing fees 4051.01 245.00 10/22/2003 0 Xerox Expense-In House 4080.01 9.00 10/22/2003 0 Xerox Expense-In House 4080.01 167.50 10/23/2003 0 Xerox Expense-In House 4080.01 91.00 10/23/2003 0 Xerox Expense-In House 4080.01 3.50 10/31/2003 0 Xerox Expense-In House 4080.01 22.75 11/4/2003 44508 Source One Legal Copy, Inc. 3 Ring binding 4080.03 40.00 11/12/2003 0 Xerox Expense-In House 4080.01 37.50 11/12/2003 0 Xerox Expense-In House 4080.01 2.00 11/19/2003 0 Xerox Expense-In House 4080.01 21.75 11/21/2003 0 Xerox Expense-In House 4080.01 52.50 12/2/2003 0 Xerox Expense-In House 4080.01 56.50 12/3/2003 45346 Focus Document Services, Inc. Documents to cd-rom 4017.05 61.30 12/3/2003 45346 Focus Document Services, Inc. Documents to cd-rom & bates numbering 4017.05 902.96 12/3/2003 45346 Focus Document Services, Inc. Documents copied 4017.05 233.02 12/4/2003 0 Xerox Expense-In House 4080.01 71.25 12/10/2003 45391 Focus Document Services, Inc. Litigation copying 4017.05 169.94 12/15/2003 45187 Focus Document Services, Inc. Imaging 4017.05 48.28 12/17/2003 0 Postage 4061.01 0.37 12/17/2003 0 Xerox Expense-In House 4080.01 237.25 12/18/2003 0 Postage 4061.01 37.38 12/23/2003 0 Postage 4061.01 0.60 12/23/2003 0 Xerox Expense-In House 4080.01 8.75 12/29/2003 45287 West Group Payment Center November WESTLAW charges 4038.04 354.21 12/29/2003 45298 West Group Payment Center October WESTLAW charges 4038.04 6,698.04 12/29/2003 45298 West Group Payment Center October WESTLAW charges 4038.04 834.61 1/8/2004 0 Xerox Expense-In House 4080.01 3.00 1/21/2004 0 Xerox Expense-In House 4080.01 2.50 1/30/2004 46159 West Group Payment Center December WESTLAW research 4038.04 3,091.63 2/2/2004 0 Xerox Expense-In House 4080.01 10.00 2/6/2004 0 Xerox Expense-In House 4080.01 212.00 2/6/2004 0 Xerox Expense-In House 4080.01 71.00 2/9/2004 0 Postage 4061.01 12.16 2/9/2004 0 Xerox Expense-In House 4080.01 75.00 2/10/2004 0 Xerox Expense-In House 4080.01 25.00 2/12/2004 0 Postage 4061.01 2.49 2/16/2004 46732 Focus Document Services, Inc. Documents to cd-rom 4017.05 1,648.34 2/16/2004 0 Postage 4061.01 1.11 2/16/2004 0 Xerox Expense-In House 4080.01 16.00 2/19/2004 0 Xerox Expense-In House 4080.01 0.75 7/29/2016 9:23 AM Page: 1 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 2/20/2004 46751 Focus Document Services, Inc. Pages OCR'd 4017.05 72.90 2/20/2004 0 Xerox Expense-In House 4080.01 1.25 3/3/2004 0 Postage 4061.01 1.75 4/8/2004 0 Xerox Expense-In House 4080.01 7.50 4/12/2004 0 Postage 4061.01 9.10 4/12/2004 0 Xerox Expense-In House 4080.01 8.50 4/22/2004 47638 West Group Payment Center February WESTLAW bill 4038.04 581.75 4/26/2004 0 Xerox Expense-In House 4080.01 62.00 5/3/2004 0 Xerox Expense-In House 4080.01 10.00 5/12/2004 0 Xerox Expense-In House 4080.01 10.00 6/1/2004 0 Xerox Expense-In House 4080.01 13.50 6/4/2004 0 Xerox Expense-In House 4080.01 12.25 6/7/2004 0 Xerox Expense-In House 4080.01 39.25 6/10/2004 0 Xerox Expense-In House 4080.01 19.00 6/21/2004 48854 American Court Reporting Service, LLC Hearing write up 4072.00 435.00 6/25/2004 48891 West Group Payment Center April WESTLAW research 4038.04 4.43 7/26/2004 49530 West Group Payment Center June WESTLAW research 4038.04 212.51 8/13/2004 0 Xerox Expense-In House 4080.01 2.50 8/20/2004 0 Xerox Expense-In House 4080.01 110.50 8/30/2004 0 Xerox Expense-In House 4080.01 0.75 8/30/2004 0 Postage 4061.01 0.37 8/31/2004 50412 American Court Reporting Service, LLC Hearing Judge King 4072.00 230.00 8/31/2004 0 Xerox Expense-In House 4080.01 2.00 9/1/2004 0 Postage 4061.01 1.11 9/21/2004 0 Xerox Expense-In House 4080.01 9.00 9/22/2004 50576 West Group Payment Center August WESTLAW research 4038.04 227.88 10/1/2004 0 Postage 4061.01 3.96 10/1/2004 0 Postage 4061.01 0.60 10/1/2004 0 Xerox Expense-In House 4080.01 71.75 10/4/2004 0 Postage 4061.01 1.11 10/4/2004 0 Xerox Expense-In House 4080.01 7.00 10/5/2004 51024 Federal Express Overnight mail 4061.03 17.31 10/15/2004 51089 American Court Reporting Service, LLC Copy court pages 4072.00 272.50 10/19/2004 51119 West Group Payment Center September WESTLAW research 4038.04 228.76 11/4/2004 0 Postage 4061.01 1.11 11/4/2004 0 Postage 4061.01 0.60 11/4/2004 0 Xerox Expense-In House 4080.01 5.00 11/22/2004 51812 West Group Payment Center October WESTLAW research 4038.04 281.43 12/17/2004 0 Postage 4061.01 3.32 12/17/2004 0 Xerox Expense-In House 4080.01 15.00 1/21/2005 52821 West Group Payment Center December WESTLAW charges 4038.04 122.80 2/4/2005 0 Xerox Expense-In House 4080.01 2.75 2/8/2005 0 Xerox Expense-In House 4080.01 22.50 2/11/2005 53257 Joey Danforah Mileage reimbursement 4052.04 4.86 2/16/2005 0 Xerox Expense-In House 4080.01 17.75 7/29/2016 9:23 AM Page: 2 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 2/17/2005 0 Xerox Expense-In House 4080.01 112.50 2/18/2005 0 Xerox Expense-In House 4080.01 17.75 2/22/2005 53536 American Court Reporting Service, LLC Copy court pages/Judge King 4072.00 511.00 3/2/2005 0 Postage 4061.01 2.12 3/2/2005 0 Postage 4061.01 1.29 3/2/2005 0 Xerox Expense-In House 4080.01 44.00 3/2/2005 0 Xerox Expense-In House 4080.01 108.25 3/9/2005 0 Xerox Expense-In House 4080.01 12.50 3/10/2005 0 Xerox Expense-In House 4080.01 14.50 3/10/2005 0 Xerox Expense-In House 4080.01 22.50 3/15/2005 0 Postage 4061.01 1.85 3/15/2005 0 Postage 4061.01 1.75 3/15/2005 0 Xerox Expense-In House 4080.01 12.00 3/16/2005 53927 West Group Payment Center February WESTLAW charges 4038.04 586.40 3/31/2005 0 Xerox Expense-In House 4080.01 1.50 4/1/2005 0 Postage 4061.01 6.45 4/1/2005 0 Postage 4061.01 4.42 4/1/2005 0 Postage 4061.01 16.20 4/1/2005 0 Postage 4061.01 19.75 4/1/2005 0 Xerox Expense-In House 4080.01 83.25 4/4/2005 0 Copying & binding of briefs 4080.03 835.00 4/6/2005 0 Copying & binding of briefs 4080.03 247.50 4/6/2005 0 Postage 4061.01 12.52 4/6/2005 0 Postage 4061.01 4.42 4/6/2005 0 Postage 4061.01 12.45 4/13/2005 0 Xerox Expense-In House 4080.01 18.75 4/18/2005 0 Xerox Expense-In House 4080.01 39.00 4/20/2005 54635 West Group Payment Center March Westlaw usage 4038.04 572.42 5/2/2005 0 Xerox Expense-In House 4080.01 2.75 5/6/2005 54832 Joey Danforah Mileage 4052.04 4.86 5/27/2005 0 Postage 4061.01 1.85 5/31/2005 0 Xerox Expense-In House 4080.01 5.00 6/1/2005 55241 West Group Payment Center April Westlaw charges 4038.04 87.53 6/2/2005 0 Xerox Expense-In House 4080.01 32.50 6/9/2005 0 Xerox Expense-In House 4080.01 2.50 6/10/2005 55515 Source One Legal Copy, Inc. B&W prints 4080.03 112.14 6/15/2005 55552 Upchurch Watson White & Max Mediation fee 4040.00 1,108.33 6/30/2005 55720 West Group Payment Center May Westlaw research 4038.04 34.70 9/12/2005 0 Xerox Expense-In House 4080.01 30.00 9/13/2005 0 Xerox Expense-In House 4080.01 15.00 9/14/2005 0 Xerox Expense-In House 4080.01 15.00 9/28/2005 0 Xerox Expense-In House 4080.01 19.50 10/3/2005 0 Xerox Expense-In House 4080.01 125.00 10/5/2005 0 Postage 4061.01 44.05 10/5/2005 0 Xerox Expense-In House 4080.01 105.25 7/29/2016 9:23 AM Page: 3 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 10/5/2005 0 Xerox Expense-In House 4080.01 35.75 10/6/2005 57396 Source One Legal Copy, Inc. Copying/binding 4080.03 476.77 10/7/2005 0 Postage 4061.01 4.44 10/26/2005 0 Postage 4061.01 39.00 10/26/2005 0 Xerox Expense-In House 4080.01 8.50 10/28/2005 0 Xerox Expense-In House 4080.01 30.00 12/27/2005 58609 West Payment Center October Westlaw charges 4038.04 270.26 4/26/2006 0 Xerox Expense-In House 4080.01 1.75 5/15/2006 61224 West Payment Center April WESTLAW research 4038.04 96.17 8/24/2006 0 Xerox Expense-In House 4080.01 35.50 9/1/2006 0 Postage 4061.01 14.25 9/1/2006 0 Postage 4061.01 19.62 9/5/2006 62975 Source One Legal Copy, Inc. Copying 4080.03 356.70 9/6/2006 0 Postage 4061.01 4.20 9/6/2006 0 Postage 4061.01 3.78 9/21/2006 63265 West Payment Center August WESTLAW usage 4038.04 144.01 10/30/2006 64094 West Payment Center September Westlaw charges 4038.04 1.02 12/19/2006 0 Xerox Expense-In House 4080.01 9.75 2/26/2007 65957 West Payment Center December WESTLAW research 4038.04 6.57 2/26/2007 65960 West Payment Center January WESTLAW research 4038.04 14.71 3/2/2007 0 Postage 4061.01 2.07 3/8/2007 0 Postage 4061.01 0.39 3/9/2007 0 Xerox Expense-In House 4080.01 10.25 3/21/2007 0 Xerox Expense-In House 4080.01 7.75 4/3/2007 0 Xerox Expense-In House 4080.01 9.50 4/4/2007 66481 Federal Express Overnight mail 4061.03 15.73 4/9/2007 0 Xerox Expense-In House 4080.01 20.25 4/11/2007 0 Xerox Expense-In House 4080.01 38.75 4/11/2007 0 Xerox Expense-In House 4080.01 37.00 4/19/2007 0 Xerox Expense-In House 4080.01 100.00 4/23/2007 66878 Brad Bailey Reimb/supplies for file 4051.02 156.32 4/24/2007 0 Postage 4061.01 0.39 4/24/2007 0 Xerox Expense-In House 4080.01 22.25 4/26/2007 0 Postage 4061.01 3.31 4/30/2007 0 Postage 4061.01 0.39 4/30/2007 0 Xerox Expense-In House 4080.01 34.00 5/2/2007 0 Postage 4061.01 0.39 5/2/2007 0 Postage 4061.01 1.89 5/3/2007 0 Xerox Expense-In House 4080.01 5.00 5/8/2007 0 Xerox Expense-In House 4080.01 1.00 5/8/2007 0 Postage 4061.01 0.39 5/8/2007 0 Postage 4061.01 1.56 5/9/2007 0 Postage 4061.01 16.56 5/10/2007 0 Postage 4061.01 0.39 5/11/2007 0 Postage 4061.01 1.17 7/29/2016 9:23 AM Page: 4 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 5/14/2007 67086 Brad Bailey Reimb. for people search report 4051.02 90.58 5/15/2007 0 Postage 4061.01 2.05 5/16/2007 0 Postage 4061.01 45.36 5/18/2007 0 Postage 4061.01 0.41 5/21/2007 0 Postage 4061.01 0.82 5/24/2007 67353 Brad Bailey People searches 4051.02 51.76 5/29/2007 0 Postage 4061.01 0.82 5/30/2007 0 Postage 4061.01 4.82 5/31/2007 67410 Brad Bailey Reimb/Santa Clara imaging service 4080.03 5,000.00 6/5/2007 0 Postage 4061.01 0.41 6/5/2007 0 Postage 4061.01 38.88 6/6/2007 0 Xerox Expense-In House 4080.01 8.75 6/8/2007 9999 West Payment Center March Westlaw research 4038.04 64.45 6/8/2007 9999 West Payment Center April Westlaw research 4038.04 27.46 6/8/2007 67691 Michael D. Ermert Travel expenses 4052.02 13.00 6/8/2007 67556 American Court Reporting Service, LLC Motion hearing 4072.00 723.50 6/11/2007 0 Postage 4061.01 0.41 6/14/2007 0 Xerox Expense-In House 4080.01 9.75 6/20/2007 0 Postage 4061.01 0.82 6/28/2007 0 Postage 4061.01 0.82 7/5/2007 0 Postage 4061.01 32.40 7/5/2007 0 Postage 4061.01 0.41 7/6/2007 67669 Bruce Office Supply, Inc. Supplies 4051.02 465.98 7/11/2007 0 Postage 4061.01 6.48 7/12/2007 0 Xerox Expense-In House 4080.01 25.50 7/18/2007 0 Xerox Expense-In House 4080.01 4.25 7/23/2007 68279 West Payment Center May Westlaw research 4038.04 44.64 7/23/2007 68280 West Payment Center June Westlaw research 4038.04 52.50 7/23/2007 0 Postage 4061.01 0.41 7/26/2007 0 Postage 4061.01 0.41 8/17/2007 68688 Brad Bailey External drives/trial 4017.03 162.60 9/18/2007 68985 IKON Office Solutions Image capture, etc. 4080.03 27,242.99 10/12/2007 0 Postage 4061.01 0.41 10/26/2007 0 Postage 4061.01 0.41 10/30/2007 0 Xerox Expense-In House 4080.01 0.50 10/31/2007 0 Postage 4061.01 0.41 11/30/2007 0 Xerox Expense-In House 4080.01 3.50 12/3/2007 0 Postage 4061.01 1.65 1/2/2008 0 Xerox Expense-In House 4080.01 26.00 1/4/2008 0 Xerox Expense-In House 4080.01 6.00 1/4/2008 0 Xerox Expense-In House 4080.01 24.00 1/7/2008 0 Xerox Expense-In House 4080.01 1.50 1/17/2008 0 Xerox Expense-In House 4080.01 23.25 1/18/2008 0 Xerox Expense-In House 4080.01 6.00 1/25/2008 70471 American Court Reporting Service, LLC Deposition/John Lauriello 4072.00 101.15 7/29/2016 9:23 AM Page: 5 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 1/29/2008 0 Xerox Expense-In House 4080.01 2.50 1/30/2008 71509 American Court Reporting Service, LLC Motion Hearing 4072.00 449.75 2/11/2008 0 Xerox Expense-In House 4080.01 3.00 2/11/2008 0 Xerox Expense-In House 4080.01 6.00 2/14/2008 0 Xerox Expense-In House 4080.01 6.00 2/15/2008 71211 West Payment Center January Westlaw research 4038.04 712.71 4/2/2008 72169 West Payment Center February Westlaw charges 4038.04 25.77 5/21/2008 0 Xerox Expense-In House 4080.01 45.75 11/17/2008 9999 West Payment Center September Westlaw research 4038.04 67.06 12/2/2008 0 Xerox Expense-In House 4080.01 106.75 12/14/2008 0 Xerox Expense-In House 4080.01 1.50 12/17/2008 0 Xerox Expense-In House 4080.01 3.75 12/19/2008 0 Xerox Expense-In House 4080.01 1.25 1/5/2009 0 Xerox Expense-In House 4080.01 1.75 1/20/2009 0 Xerox Expense-In House 4080.01 31.25 1/22/2009 0 Xerox Expense-In House 4080.01 1.75 1/26/2009 0 Xerox Expense-In House 4080.01 8.75 2/2/2009 0 Xerox Expense-In House 4080.01 31.75 2/4/2009 0 Xerox Expense-In House 4080.01 12.00 2/5/2009 0 Xerox Expense-In House 4080.01 84.00 2/12/2009 0 Xerox Expense-In House 4080.01 7.75 2/13/2009 75806 American Court Reporting Service, LLC Motion to Dismiss Hearing/Judge King 4072.00 975.00 2/25/2009 9999 West Payment Center January Westlaw charges 4038.04 1,304.42 3/2/2009 0 Xerox Expense-In House 4080.01 13.50 3/5/2009 0 Xerox Expense-In House 4080.01 1.25 3/9/2009 0 Xerox Expense-In House 4080.01 1.75 3/17/2009 0 Xerox Expense-In House 4080.01 16.00 3/23/2009 0 Xerox Expense-In House 4080.01 2.75 3/25/2009 9999 West Payment Center February Westlaw research 4038.04 211.48 3/31/2009 76748 American Court Reporting Service, LLC Hearing/Judge King's court 4072.00 82.00 3/31/2009 0 Xerox Expense-In House 4080.01 17.75 4/15/2009 76942 Verizon Wireless Scott Powell 4052.02 110.78 4/21/2009 0 Xerox Expense-In House 4080.01 2.00 4/24/2009 0 Xerox Expense-In House 4080.01 2.50 4/27/2009 0 Xerox Expense-In House 4080.01 2.50 4/30/2009 0 Postage 4061.01 13.44 5/28/2009 77776 John W. Haley Reimb/NY trip expenses 4052.02 2,935.11 5/28/2009 9999 West Payment Center March Westlaw research 4038.04 461.81 5/28/2009 9999 West Payment Center April Westlaw research 4038.04 255.20 5/28/2009 0 Postage 4061.01 0.44 6/15/2009 0 Xerox Expense-In House 4080.01 117.75 7/10/2009 0 Xerox Expense-In House 4080.01 7.00 8/12/2009 0 Xerox Expense-In House 4080.01 184.50 8/13/2009 9999 Geoffrey Miller Expert fee 4031.00 20,000.00 8/19/2009 9999 West Payment Center June Westlaw research 4038.04 23.36 7/29/2016 9:23 AM Page: 6 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 8/19/2009 9999 West Payment Center July Westlaw research 4038.04 34.94 8/26/2009 0 Xerox Expense-In House 4080.01 3.75 8/27/2009 0 Xerox Expense-In House 4080.01 7.75 8/28/2009 0 Xerox Expense-In House 4080.01 7.75 9/3/2009 78884 American Court Reporting Service, LLC Motion hearing/Judge King 4072.00 226.00 9/11/2009 78932 American Express SAP/travel expenses 4052.02 881.03 9/11/2009 78932 American Express SAP/airfare 4012.01 811.81 9/15/2009 78974 Verizon Wireless Scott Powell 4052.02 224.51 9/22/2009 0 Refund/Geoffrey P. Miller 4082.00 -20,000.00 10/2/2009 79149 John W. Haley Travel expenses/New York 4052.02 528.82 10/16/2009 79258 American Express SAP/travel expenses 4052.02 44.00 12/17/2009 80299 Verizon Wireless Scott Powell 4052.02 91.71 2/23/2010 81369 Verizon Wireless Scott Powell/205-937-7207 4052.02 95.43 2/24/2010 0 Postage 4061.01 2.58 2/24/2010 0 Xerox Expense-In House 4080.01 4.00 4/8/2010 0 Xerox Expense-In House 4080.01 18.00 4/29/2010 82041 Document Outsourcing, Inc. Blowbacks 4080.03 430.19 5/5/2010 82100 Document Outsourcing, Inc. Binders/copying 4080.03 546.18 5/7/2010 0 Xerox Expense-In House 4080.01 3.50 5/12/2010 0 Xerox Expense-In House 4080.01 4.25 5/17/2010 0 Xerox Expense-In House 4080.01 3.00 6/15/2010 82660 Verizon Wireless Scott Powell 4052.02 95.32 6/23/2010 82457 William B. Rubenstein Retainer/CVS Class Action/Lauriello 4031.00 25,000.00 6/28/2010 0 Postage 4061.01 1.32 7/15/2010 0 Refund/James L. North, Atty 4082.00 -6,250.00 7/15/2010 9999 West Payment Center February Westlaw research 4038.04 2.23 7/19/2010 83157 Verizon Wireless Scott Powell 4051.02 90.73 7/28/2010 0 Refund/Law Office of John Somerville 4082.00 -6,250.00 8/26/2010 0 Postage 4061.01 0.88 8/26/2010 0 Xerox Expense-In House 4080.01 1.75 9/15/2010 83631 Verizon Wireless Scott Powell 4052.02 200.85 9/30/2010 9999 West Payment Center June Westlaw charges 4038.04 3.29 10/19/2010 84401 Sharyn Lawson-Seier Legal assistant research 4021.01 1,806.25 10/20/2010 0 Xerox Expense-In House 4080.01 9.50 11/4/2010 83838 Freedom Court Reporting, Inc. Depo/Brooke Johnston, Jr. 4045.00 477.70 11/8/2010 0 Xerox Expense-In House 4080.01 107.00 11/19/2010 83912 Freedom Court Reporting, Inc. Depo/John Haley 4072.00 869.00 11/23/2010 84682 Freedom Court Reporting, Inc. John Somerville depo 4072.00 481.25 1/11/2011 0 Xerox Expense-In House 4080.01 61.50 1/12/2011 0 Xerox Expense-In House 4080.01 6.25 1/14/2011 85198 Freedom Court Reporting, Inc. John Haley depo 4072.00 484.65 1/19/2011 85576 Freedom Court Reporting, Inc. Depo/J. Timothy Francis 4072.00 485.45 1/24/2011 85276 Bainbridge, Mims, Rogers & Smith, LLP 1/3 legal services thru 12/22/2010 4040.00 7,528.09 2/15/2011 9999 West Payment Center November Westlaw research 4038.04 239.44 3/4/2011 86083 Freedom Court Reporting, Inc. John Somerville depo-11/11/2010 4072.00 385.00 7/29/2016 9:23 AM Page: 7 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 3/10/2011 0 Xerox Expense-In House 4080.01 1.75 3/17/2011 0 Refund/James L. North & Assoc. 4082.00 -2,581.54 4/1/2011 85907 Freedom Court Reporting, Inc. Depo/Jim Gunther 4072.00 534.45 4/6/2011 86337 Freedom Court Reporting, Inc. Lanny Vines' depo 4072.00 725.30 5/13/2011 0 Refund/Galloway & Somerville 4082.00 -2,581.54 5/16/2011 0 Xerox Expense-In House 4080.01 2.00 5/16/2011 0 Postage 4061.01 1.28 5/26/2011 87061 American Express Travel expenses/New York 4012.01 3,317.14 5/26/2011 87061 American Express Travel expenses/New York 4052.02 156.05 5/31/2011 0 Postage 4061.01 1.28 6/1/2011 87302 John W. Haley Travel expense refund/New York 4052.02 519.98 6/10/2011 86896 Freedom Court Reporting, Inc. Depo/Richard George 4072.00 1,202.35 6/10/2011 0 Xerox Expense-In House 4080.01 66.25 6/24/2011 86948 Freedom Court Reporting, Inc. Video deposition/Richard George 4072.00 1,195.50 6/30/2011 87294 Freedom Court Reporting, Inc. Jack Newman video depo 4072.00 1,645.00 6/30/2011 87302 John W. Haley Travel expenses/New York 4052.02 3,503.82 7/19/2011 9999 West Payment Center May Westlaw research 4038.04 60.99 7/20/2011 87473 Citation Aviation, LLC June airfare 4012.03 3,800.00 7/21/2011 87485 Ellen Grauer Court Reporting Steven Cauley depo transcript 4072.00 773.50 7/28/2011 88025 John W. Haley Travel expenses/CO 4052.02 448.99 8/22/2011 88202 John W. Haley Travel expenses/Colorado 4052.02 1,572.75 8/24/2011 0 Xerox Expense-In House 4080.01 28.00 9/15/2011 88372 Freedom Court Reporting, Inc. Jack Newman depo 4072.00 1,755.40 9/19/2011 0 Xerox Expense-In House 4080.01 25.50 9/21/2011 0 Postage 4061.01 4.44 9/23/2011 0 Xerox Expense-In House 4080.01 9.25 10/7/2011 0 Xerox Expense-In House 4080.01 7.50 10/17/2011 0 Postage 4061.01 2.56 10/26/2011 90418 Freedom Court Reporting, Inc. Depos/Sam Johnson & Marty Leonard 4072.00 532.60 10/27/2011 90176 Freedom Court Reporting, Inc. John Lauriello depo 4072.00 424.60 11/7/2011 9999 West Payment Center September Westlaw research 4038.04 123.28 12/14/2011 0 Xerox Expense-In House 4080.01 2.50 12/20/2011 0 Xerox Expense-In House 4080.01 5.00 1/3/2012 90976 Sharyn Lawson-Seier Legal assistant research 4021.01 288.75 1/19/2012 9999 West Payment Center December Westlaw research 4051.02 39.60 1/20/2012 0 Xerox Expense-In House 4080.01 209.75 1/24/2012 0 Xerox Expense-In House 4080.01 9.00 1/24/2012 0 Xerox Expense-In House 4080.01 6.25 2/9/2012 91784 Brad Bailey Reimb/Ellen Grauer Court Rep-Wm Lerach 4072.00 1,588.00 depo 2/16/2012 91855 Ellen Grauer Court Reporting Keith Park/Darren Robbins depos 4072.00 2,709.50 2/17/2012 91861 John W. Haley Travel expenses/San Diego-1/30/12 4052.02 188.36 2/29/2012 9999 William B. Rubenstein Services June, 2010-March, 2012 4031.00 31,097.50 3/9/2012 0 Refund/James L. North & Associates 4082.00 -7,774.38 3/14/2012 92028 Bainbridge, Mims, Rogers & Smith, LLP Special Master-legal fees/1/3 bill 4040.00 10,133.91
7/29/2016 9:23 AM Page: 8 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 3/20/2012 0 Xerox Expense-In House 4080.01 30.50 3/21/2012 0 Xerox Expense-In House 4080.01 15.00 3/29/2012 0 Refund/James L. North & Associates 4082.00 -2,533.48 3/30/2012 0 Xerox Expense-In House 4080.01 2.50 4/5/2012 92144 William B. Rubenstein Services 3/1/12-4/2/12 4031.00 42,058.50 4/11/2012 0 Refund/James L. North & Assoc-expert bill 4082.00 -10,514.63 4/18/2012 0 Postage 4061.01 1.90 4/18/2012 0 Xerox Expense-In House 4080.01 6.25 4/20/2012 0 Xerox Expense-In House 4080.01 4.50 4/23/2012 0 Xerox Expense-In House 4080.01 18.75 4/24/2012 92316 Freedom Court Reporting, Inc. Kenneth C. Randall depo 4072.00 528.95 4/25/2012 92323 Esquire Deposition Solutions, LLC William Rubenstein depo 4072.00 1,198.10 4/27/2012 0 Xerox Expense-In House 4080.01 72.25 4/30/2012 92364 John W. Haley Travel expenses/Boston, MA 4012.01 898.20 4/30/2012 92364 John W. Haley Travel expenses/Boston, MA 4052.02 1,370.44 4/30/2012 0 Xerox Expense-In House 4080.01 4.50 5/1/2012 91583 Federal Express Overnight mail 4061.03 26.70 5/2/2012 0 Xerox Expense-In House 4080.01 3.25 5/2/2012 0 Xerox Expense-In House 4080.01 14.25 5/3/2012 0 Xerox Expense-In House 4080.01 21.00 5/7/2012 0 Xerox Expense-In House 4080.01 50.00 5/9/2012 92626 Brad Bailey Reimb expense/Trial 4051.02 43.58 5/10/2012 0 Xerox Expense-In House 4080.01 2.50 5/11/2012 0 Xerox Expense-In House 4080.01 2.00 5/16/2012 0 Xerox Expense-In House 4080.01 43.75 5/21/2012 92503 Freedom Court Reporting, Inc. Thomas D. Morgan depo 4072.00 1,474.50 5/21/2012 92503 Freedom Court Reporting, Inc. Albert M. Pearson, III depo 4072.00 1,344.50 5/22/2012 9999 West Payment Center March Westlaw research 4038.04 143.52 5/23/2012 0 Xerox Expense-In House 4080.01 8.75 5/23/2012 0 Xerox Expense-In House 4080.01 36.75 5/29/2012 0 Xerox Expense-In House 4080.01 24.25 5/31/2012 92565 John W. Haley Travel expenses/Atlanta, GA 4052.02 2,355.35 6/1/2012 92568 Newk's Express Cafe Lunch/AIG hearings 4051.02 107.25 6/1/2012 0 Xerox Expense-In House 4080.01 75.00 6/4/2012 92573 Beckey Askins Reimb/Lunch for hearing 4051.02 122.97 6/6/2012 92726 Source One Legal Copy, Inc. Hand fed copies/tabs 4080.03 2,651.43 6/8/2012 93138 Zoe's Kitchen-Downtown Luncheon/hearing-6/4/2012 4051.02 92.37 6/8/2012 93138 Zoe's Kitchen-Downtown Luncheon/hearing-5/31/2012 4051.02 92.37 6/8/2012 93138 Zoe's Kitchen-Downtown Luncheon/hearing-5/30/2012 4051.02 110.96 6/8/2012 93141 American Express SAP/travel expenses 4052.02 993.43 6/11/2012 93152 William B. Rubenstein Expert services-4/1/12-6/1/12 4031.00 8,987.50 6/12/2012 0 Xerox Expense-In House 4080.01 7.00 6/12/2012 0 Xerox Expense-In House 4080.01 4.00 6/12/2012 0 Xerox Expense-In House 4080.01 2.75 6/13/2012 92749 Freedom Court Reporting, Inc. Video of deposition/Albert M. Pearson 4072.00 931.25 7/29/2016 9:23 AM Page: 9 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 6/13/2012 92749 Freedom Court Reporting, Inc. Video of deposition/Thomas D. Morgan 4072.00 1,133.75 6/15/2012 0 Xerox Expense-In House 4080.01 37.25 6/18/2012 0 Postage 4061.01 1.35 6/18/2012 0 Xerox Expense-In House 4080.01 58.75 6/19/2012 93274 Birmingham Reporting Service Class certification hearing 4072.00 7,350.75 6/26/2012 0 Refund/James L. North & Assoc. 4082.00 -2,246.88 6/26/2012 0 Refund/James L. North & Assoc. 4082.00 -1,837.68 7/2/2012 0 Postage 4061.01 0.90 7/11/2012 0 Xerox Expense-In House 4080.01 67.00 7/16/2012 93433 Jill Brown Bailey Depo digests-Cauley/Francis/Gunther 4021.01 1,400.00 7/25/2012 9999 West Payment Center April Westlaw research 4038.04 716.73 7/25/2012 9999 West Payment Center May Westlaw research 4038.04 1,724.71 7/25/2012 93504 John C. Crescenzi Depo digests/Vines-Somerville-Park 4021.02 980.00 8/3/2012 93561 John C. Crescenzi Services through 8/02/2012/depo digests 4021.02 805.00 8/7/2012 9999 West Payment Center June Westlaw research 4038.04 2,479.63 8/7/2012 93610 John C. Crescenzi Depo digests 4021.02 962.50 8/7/2012 93611 Irell & Manella, LLP Mediation fee 4040.00 13,033.34 8/8/2012 93616 American Express SAP/airfare to San Francisco 4012.01 657.40 8/8/2012 0 Postage 4061.01 8.65 8/9/2012 0 Xerox Expense-In House 4080.01 31.50 8/10/2012 0 Xerox Expense-In House 4080.01 68.00 8/16/2012 0 Postage 4061.01 2.10 8/30/2012 0 Postage 4061.01 4.05 9/5/2012 93785 John C. Crescenzi Deposition digests 4021.01 595.00 9/10/2012 0 Xerox Expense-In House 4080.01 19.50 9/12/2012 93882 American Express SAP/airfare 4012.01 113.80 9/20/2012 93967 American Express JRP/travel expenses 4052.02 1,516.20 9/20/2012 93970 John C. Crescenzi Arbitration digest work 4021.01 2,375.00 9/27/2012 0 Postage 4061.01 3.15 10/2/2012 94044 Clerk of the Supreme Court Filing fee 4051.01 200.00 10/4/2012 0 Xerox Expense-In House 4080.01 16.00 10/11/2012 94625 American Express SAP/airfare 4012.01 250.80 10/11/2012 94625 American Express SAP/travel expenses-CA 4052.02 2,577.61 10/17/2012 0 Postage 4061.01 5.20 10/23/2012 0 Postage 4061.01 4.55 10/24/2012 94728 American Express JRP/airfare 4012.01 78.00 10/24/2012 94728 American Express JRP/travel expenses-CA 4052.02 1,792.50 11/5/2012 94793 John W. Haley Travel expenses/Laguna Beach, CA 4052.02 4,620.99 11/30/2012 9999 West Payment Center September Westlaw charges 4038.04 656.87 5/13/2013 0 Xerox Expense-In House 4080.01 3.25 5/14/2013 96735 Jefferson County Circuit Court Appeal costs 4051.01 13.50 5/22/2013 0 Xerox Expense-In House 4080.01 19.00 6/3/2013 0 Xerox Expense-In House 4080.01 14.00 6/6/2013 0 Xerox Expense-In House 4080.01 1.75 6/11/2013 0 Xerox Expense-In House 4080.01 4.00 7/29/2016 9:23 AM Page: 10 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 7/12/2013 0 Copying & binding of briefs 4080.03 741.59 7/12/2013 0 Xerox Expense-In House 4080.01 85.25 8/30/2013 0 Copying & binding of briefs 4080.03 272.19 9/3/2013 0 Xerox Expense-In House 4080.01 12.50 9/12/2013 9999 West Payment Center June Westlaw research 4038.04 520.99 11/12/2013 9999 West Payment Center July Westlaw research--9/25/13 4038.04 648.66 11/13/2013 9999 West Payment Center August Westlaw research 4038.04 1,677.06 1/9/2014 0 Postage 4061.01 0.46 6/20/2014 9999 West Payment Center May Westlaw research 4038.04 176.95 9/19/2014 0 Postage 4061.01 17.28 10/6/2014 0 Postage 4061.01 0.48 10/7/2014 0 Postage 4061.01 0.48 10/9/2014 0 Postage 4061.01 9.10 10/9/2014 0 Postage 4061.01 5.49 10/14/2014 0 Postage 4061.01 6.09 10/16/2014 0 Binding of briefs/30 binders 4017.05 0.00 11/12/2014 9999 West Payment Center October Westlaw research 4038.04 408.21 12/6/2014 103007 John W. Haley Travel expenses/San Francisco, CA 4052.02 2,381.60 1/22/2015 0 USB drive for document management 4051.02 20.00 3/5/2015 0 Postage 4061.01 14.88 3/20/2015 104006 Gilardi & Co., LLC Class notice administration/down payment 4031.00 90,000.00 3/20/2015 0 Refund/Francis Law, LLC 4082.00 -22,500.00 3/24/2015 0 Refund/Somerville, LLC 4082.00 -22,500.00 3/27/2015 9999 West Payment Center January Westlaw research 4038.04 104.83 4/1/2015 104096 Garrett Zoghby Postage/Atlanta & NY 4017.07 7.40 4/1/2015 104096 Garrett Zoghby Postage/Atlanta & NY 4017.07 7.61 4/14/2015 0 Postage 4061.01 0.48 4/14/2015 0 Postage 4061.01 4.48 4/17/2015 104221 Lance Baxter Mileage reimbursement 4052.04 1.73 4/17/2015 9999 West Payment Center March Westlaw research 4038.04 624.22 4/22/2015 0 Postage 4061.01 14.74 4/29/2015 0 Postage 4061.01 0.69 4/29/2015 0 Postage 4061.01 1.61 4/29/2015 0 Postage 4061.01 1.40 4/30/2015 0 Postage 4061.01 4.20 5/11/2015 0 Postage 4061.01 7.56 5/13/2015 0 Postage 4061.01 7.14 5/14/2015 0 Postage 4061.01 20.90 5/15/2015 9999 William B. Rubenstein Trial testimony retainer 4031.00 60,000.00 5/15/2015 0 Xerox Expense-In House 4080.01 16.00 5/15/2015 0 Postage 4061.01 14.88 5/15/2015 0 Postage 4061.01 2.88 5/19/2015 104690 Birmingham Reporting Service Proceedings before Judge Ballard 4072.00 213.50 5/19/2015 0 Postage 4061.01 11.90 5/19/2015 0 Postage 4061.01 6.00 7/29/2016 9:23 AM Page: 11 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 5/22/2015 0 Refund/Francis Law, LLC 4082.00 -15,000.00 5/28/2015 9999 West Payment Center April Westlaw research 4038.04 960.72 5/28/2015 0 Postage 4061.01 9.24 5/29/2015 104735 American Express SAP/attorney lunch meeting 4052.02 39.55 6/4/2015 104781 Lightfoot, Franklin & White, L.L.C. 1/2 cost - copy of Jack Drake production 4080.03 793.47 6/9/2015 104800 Birmingham Reporting Service Proceedings before Judge Ballard 4072.00 322.00 6/16/2015 104852 Lightfoot, Franklin & White, L.L.C. 1/2 cost of Yearout, Ragsdale production 4080.03 595.85 6/19/2015 104883 Michael Klausner Expert retainer 4031.00 35,000.00 6/23/2015 0 Refund/Francis Law, LLC 4082.00 -8,750.00 6/26/2015 104937 Brian Vines Clarity Legal/document review 4052.01 199.00 6/26/2015 9999 West Payment Center May Westlaw research 4038.04 1,939.62 7/1/2015 104961 Steve Singer Expert retainer 4031.00 30,000.00 7/6/2015 9999 Griffith Research Consulting, LLC Expert retainer 4031.00 10,000.00 7/7/2015 0 USB drive for documents sent to Mr. Klausner 4051.02 15.00 7/7/2015 0 Refund/Somerville, LLC 4082.00 -8,819.90 7/7/2015 0 Refund/Somerville, LLC 4082.00 -8,750.00 7/7/2015 0 Refund/Somerville, LLC 4082.00 -7,500.00 7/8/2015 105008 Francis Law, LLC 50% share/Alan Miller retainer 4031.00 7,500.00 7/8/2015 105009 Jury Trial Science, LLC Focus Group retainer 4031.00 23,000.00 7/8/2015 0 USB drive for documents to expert 4031.00 15.00 7/10/2015 0 Refund/Francis Law, LLC - Singer fee 4082.00 -7,500.00 7/10/2015 0 Refund/Francis Law, LLC - Griffith fee 4082.00 -2,500.00 7/10/2015 105108 Strickland Companies Dividers/Lauriello 4051.02 10.89 7/14/2015 0 Xerox Expense-In House 4080.01 36.50 7/15/2015 9999 Federal Express Overnight shipments 4061.03 546.69 7/16/2015 105073 JAMS, Inc. Neutral Evaluation 4014.06 12,239.90 7/20/2015 105095 Chris Elliott Work on AIG graphics 4031.00 585.00 7/21/2015 0 Refund/Francis Law, LLC 4082.00 -5,750.00 7/21/2015 0 Xerox Expense-In House 4080.01 11.25 7/27/2015 0 USB drive to send docs to expert 4051.02 15.00 7/28/2015 9999 Federal Express Overnight shipments 4061.03 199.96 7/28/2015 9999 Federal Express Overnight shipments 4061.03 63.96 7/28/2015 0 Postage 4061.01 0.48 7/31/2015 0 Postage 4061.01 0.96 8/3/2015 0 Xerox Expense-In House 4080.01 143.75 8/4/2015 105283 American Express SAP/Lunch-Atlanta 4012.01 23.39 8/4/2015 105283 American Express SAP/Delta airfare to NY-7/19 4012.01 1,744.20 8/5/2015 0 Xerox Expense-In House 4080.01 91.50 8/5/2015 0 Xerox Expense-In House 4080.01 80.50 8/6/2015 0 Xerox Expense-In House 4080.01 692.50 8/6/2015 0 Xerox Expense-In House 4080.01 36.25 8/10/2015 105332 Clerk of the Supreme Court of Alabama Copies of filing/Johnston v. National Union 4051.01 19.00 8/10/2015 105423 Birmingham Reporting Service Proceedings before Judge Ballard 4072.00 182.00 8/10/2015 0 Postage 4061.01 0.48 8/11/2015 9999 Federal Express Overnight shipments 4061.03 93.38 7/29/2016 9:23 AM Page: 12 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 8/11/2015 9999 Federal Express Overnight shipments 4061.03 29.28 8/11/2015 9999 Federal Express Overnight shipments 4061.03 109.43 8/11/2015 9999 Federal Express Overnight shipments 4061.03 93.38 8/11/2015 9999 Federal Express Overnight shipments 4061.03 97.03 8/11/2015 9999 Federal Express Overnight shipments 4061.03 45.64 8/11/2015 9999 Federal Express Overnight shipments 4061.03 19.25 8/11/2015 9999 Federal Express Overnight shipments 4061.03 103.08 8/11/2015 9999 Federal Express Overnight shipments 4061.03 93.53 8/11/2015 9999 Federal Express Overnight shipments 4061.03 83.46 8/11/2015 9999 Federal Express Overnight shipments 4061.03 122.11 8/11/2015 9999 Federal Express Overnight shipments 4061.03 75.08 8/13/2015 0 Refund/Francis Law, LLC 4082.00 -3,059.98 8/13/2015 9999 Brian Vines Airfare/hotel expense 4052.01 982.54 8/14/2015 105434 Office Depot Credit Plan Case material/Lauriello 4051.02 46.28 8/17/2015 105398 JAMS, Inc. Services 7/8/15-7/20/15 4031.00 2,859.49 8/18/2015 105404 Freedom Court Reporting, Inc. Marty Leonard transcript 4072.00 288.75 8/19/2015 105418 Tommy Kitsmiller Trips to/from airport-Scott Powell 4052.02 80.00 8/24/2015 105619 American Express Airfare/hotel/travel-Boston & NY 4052.02 5,859.87 8/24/2015 105624 John W. Haley Airfare to NY 7/17/2015 4052.02 601.10 8/24/2015 105624 John W. Haley Travel expenses/New York 4052.02 1,658.78 8/25/2015 0 USB drives for documents maintenance/experts 4051.02 60.00 8/26/2015 105474 Birmingham Reporting Service Video deposition of Jack Drake 4072.00 810.00 8/28/2015 0 USB drive/documents to expert 4051.02 15.00 8/28/2015 105478 Strickland Companies Case materials/Lauriello 4051.02 113.45 8/31/2015 105640 Jason Hegland Database work 4031.00 10,718.00 8/31/2015 105641 George Bashour Research fees 4031.00 6,262.00 8/31/2015 0 Refund/Francis Law, LLC-Judge Birch bill 4082.00 -714.87 9/3/2015 105673 William B. Rubenstein Expert consulting thru 9/1/2015 4031.00 6,705.00 9/3/2015 105691 Birmingham Reporting Service Jack Drake depo 4072.00 1,306.59 9/3/2015 105694 Michael Klausner Expert fees/July-August 4031.00 53,588.00 9/9/2015 105727 JAMS, Inc. Hon. Birch services/August 4031.00 31,328.40 9/10/2015 105730 Veritext Corporate Services, Inc. Transcript of Roger Kirby 4072.00 965.70 9/10/2015 0 Postage 4061.01 0.48 9/11/2015 105523 Birmingham Reporting Service Deposition & exhibits/Gusty Yearout 4072.00 807.86 9/14/2015 105745 Brian Vines Travel/depos & meetings 4052.01 1,770.98 9/14/2015 105535 Tempe Smith Reimb/dropbox storage 4051.02 99.00 9/15/2015 9999 Federal Express Overnight shipments 4061.03 17.71 9/15/2015 9999 Federal Express Overnight shipments 4061.03 42.03 9/15/2015 9999 Federal Express Overnight shipments 4061.03 17.71 9/15/2015 9999 Federal Express Overnight shipments 4061.03 41.53 9/15/2015 9999 Federal Express Overnight shipments 4061.03 41.53 9/15/2015 9999 Federal Express Overnight shipments 4061.03 50.00 9/15/2015 9999 Federal Express Overnight shipments 4061.03 74.59 9/15/2015 9999 Federal Express Overnight shipments 4061.03 31.05 9/15/2015 9999 Federal Express Overnight shipments 4061.03 25.18 7/29/2016 9:23 AM Page: 13 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 9/15/2015 9999 Federal Express Overnight shipments 4061.03 17.71 9/15/2015 9999 Federal Express Overnight shipments 4061.03 59.13 9/15/2015 9999 Federal Express Overnight shipments 4061.03 45.64 9/15/2015 9999 Federal Express Overnight shipments 4061.03 50.90 9/15/2015 9999 Federal Express Overnight shipments 4061.03 49.66 9/15/2015 9999 Federal Express Overnight shipments 4061.03 46.05 9/15/2015 105786 Lynn Imaging Prints from scans 4080.03 318.28 9/15/2015 105788 John W. Haley Airfare/hotel-Boston/NY 4012.01 2,038.40 9/15/2015 105788 John W. Haley Airfare/hotel-Boston/NY 4052.02 753.37 9/15/2015 0 Chick Preston/pilot fee-8/31-9/1/15 trip 4052.02 1,200.00 9/15/2015 0 Ed Wood - Pilot fee/expenses - 8/31-9/1/15 trip 4052.02 1,443.65 9/16/2015 105803 Birmingham Reporting Service Gusty Yearout/video transcript 4072.00 425.00 9/17/2015 105813 Steve Singer Expert fee (125 hours less retainer) 4031.00 95,000.00 9/17/2015 0 Xerox Expense-In House 4080.01 470.00 9/22/2015 0 Refund/Somerville, LLC/Griffith 4082.00 -2,500.00 9/22/2015 0 Refund/Somerville, LLC/JAMS 4082.00 -11,606.95 9/22/2015 0 Refund/Somerville, LLC/Miles 4082.00 -5,750.00 9/22/2015 0 Refund/Somerville, LLC/Klausner 4082.00 -17,642.00 9/22/2015 0 Refund/Somerville, LLC/Rubenstein 4082.00 -1,676.25 9/22/2015 0 Refund/Somerville, LLC/Veritext 4082.00 -241.43 9/22/2015 0 Refund/Francis Law, LLC 4082.00 -51,141.78 9/23/2015 105847 Veritext Corporate Services, Inc. Transcript/William B. Rubenstein 4072.00 1,502.96 9/25/2015 105865 Tempe Smith Mileage/hotel-Atlanta-Birch depo 4052.01 742.64 9/25/2015 0 Xerox Expense-In House 4080.01 75.00 9/28/2015 9999 West Payment Center June Westlaw research 4038.04 1,388.31 9/28/2015 9999 West Payment Center July Westlaw research 4038.04 759.35 9/28/2015 9999 West Payment Center August Westlaw research 4038.04 2,420.77 9/29/2015 9999 Federal Express Overnight shipments 4061.03 13.80 9/29/2015 9999 Federal Express Overnight shipments 4061.03 58.26 9/29/2015 0 Refund/Francis Law, LLC 4082.00 -375.74 9/29/2015 105875 American Express SAP/Meals+hotel-NY 4052.02 5,630.80 9/29/2015 105876 Birmingham Reporting Service Clay Ragsdale transcript 4072.00 437.03 9/29/2015 105883 Tommy Kitsmiller Trips to/from airport 9/16, 9/19 4052.02 80.00 9/30/2015 105909 Card Services Filing fees/Alacourt.com 4051.01 52.00 9/30/2015 0 Postage 4061.01 0.48 9/30/2015 0 Postage 4061.01 0.97 10/1/2015 105920 William B. Rubenstein September services 4031.00 5,270.00 10/5/2015 105932 Veritext Corporate Services, Inc. Transcript of Steven B. Singer 4072.00 1,229.92 10/5/2015 105934 Griffith Research Consulting, LLC Expert services-8/2/15-10/2/15 4031.00 31,093.00 10/5/2015 105937 Francis Law, LLC 50% share/Alan Miller fee 4031.00 35,946.53 10/5/2015 0 Xerox Expense-In House 4080.01 863.75 10/6/2015 105959 Steve Singer Expert fees thru 10/1/2015 - 75 hours 4031.00 75,000.00 10/6/2015 105960 JAMS, Inc. Expert fees thru 9/21/2015 4031.00 15,827.04 10/7/2015 105975 Veritext Corporate Services, Inc. Transcript of Sean J. Griffith 4072.00 1,511.70 10/7/2015 9999 American Express Scott Powell/Conf #4898 4052.02 15,000.00 7/29/2016 9:23 AM Page: 14 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 10/9/2015 0 Xerox Expense-In House 4080.01 143.75 10/12/2015 9999 Brian Vines Airfare/meals-New York 4052.01 7,955.84 10/12/2015 0 Postage 4061.01 1.85 10/14/2015 106007 Veritext Corporate Services, Inc. Michael Klausner transcript 4072.00 2,027.70 10/15/2015 0 Refund/John Somerville, LLC - share of expenses 4082.00 -60,000.00 through 10/14/2015 10/16/2015 106033 Veritext Corporate Services, Inc. Stanley Birch transcipt 4072.00 2,622.80 10/16/2015 106033 Veritext Corporate Services, Inc. Stanley Birch video DVD 4072.00 274.79 10/19/2015 0 USB drive to document management 4051.02 10.00 10/20/2015 0 Refund/Francis Law, LLC - Rubenstein invoice 4082.00 -1,317.50 10/21/2015 106067 Veritext Corporate Services, Inc. Sean Griffith video depo 4072.00 904.79 10/22/2015 106081 Freedom Litigation Support Process service/Cornerstone Research 4051.02 125.00 10/26/2015 106098 Veritext Corporate Services, Inc. Michael Klausner video depo 4072.00 1,019.50 10/26/2015 0 Postage 4061.01 0.48 10/27/2015 9999 Federal Express Overnight shipments 4061.03 35.45 10/27/2015 9999 Federal Express Overnight shipments 4061.03 48.69 10/27/2015 9999 Federal Express Overnight shipments 4061.03 29.23 10/27/2015 106302 Jury Trial Science, LLC Retainer for mock trial 4031.00 34,000.00 10/28/2015 9999 West Payment Center September Westlaw research 4038.04 3,638.46 10/28/2015 0 Refund/Francis Law, LLC 4082.00 -5,900.00 10/29/2015 0 Xerox Expense-In House 4080.01 126.50 10/30/2015 0 Refund/Francis Law, LLC 4082.00 -481.08 10/30/2015 0 Refund/Francis Law, LLC 4082.00 -34,996.75 11/2/2015 0 Postage 4061.01 0.48 11/2/2015 0 Postage 4061.01 5.95 11/2/2015 106299 American Express SAP/travel expenses-NY/Boston 4052.02 5,620.75 11/2/2015 0 Xerox Expense-In House 4080.01 61.25 11/3/2015 9999 Federal Express Overnight shipment 4061.03 45.66 11/4/2015 0 Postage 4061.01 0.97 11/5/2015 106360 JAMS, Inc. Hon. Stanley Birch/through 10/31/2015 4031.00 4,474.40 11/5/2015 0 Postage 4061.01 3.62 11/6/2015 106378 Jason Hegland Klausner deposition prep/22x$175 4031.00 3,850.00 11/6/2015 106379 Michael Klausner Deposition fee/25.25x$950 4031.00 42,987.00 11/10/2015 0 Postage 4061.01 0.48 11/12/2015 9999 Brian Vines Travel/expert depos in NY 4052.01 17,065.95 11/16/2015 106402 Brian Vines Reimb/cab fare-NY 4052.01 150.00 11/17/2015 0 USB drives for document management 4051.02 30.00 11/17/2015 0 Refund/Francis Law, LLC- for JAMS 4082.00 -1,118.60 11/17/2015 0 Refund/Francis Law, LLC-for Klausner 4082.00 -11,709.25 11/18/2015 106431 Veritext Corporate Services, Inc. Roger Kirby/video depo 4072.00 174.50 11/18/2015 106431 Veritext Corporate Services, Inc. Steven Schulman/transcript 4072.00 559.86 11/18/2015 106431 Veritext Corporate Services, Inc. David Guin/transcript 4072.00 1,004.25 11/18/2015 106431 Veritext Corporate Services, Inc. Steven Schulman/video depo 4072.00 245.33 11/18/2015 106231 Source One Legal Copy, Inc. Color trial exhibits 4080.03 455.40 11/19/2015 106438 Alice Nix Research-11/6/15-11/19/15 4021.02 1,295.00
7/29/2016 9:23 AM Page: 15 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 11/19/2015 106457 John W. Haley Airfare/hotel/meals-New York meetings 4052.02 3,283.28 11/23/2015 106471 Tommy Kitsmiller Taxi from airport 10/13/15 4052.02 40.00 11/24/2015 0 Postage 4061.01 2.30 11/24/2015 0 Postage 4061.01 0.48 11/25/2015 9999 Federal Express Overnight shipments 4061.03 34.85 11/25/2015 9999 Federal Express Overnight shipments 4061.03 21.90 11/25/2015 106498 Garrett Zoghby Mileage reimbursement 4052.04 17.25 11/30/2015 106503 Tempe Smith Airfare/hotel/meals/taxi-Donelson depo in 4052.01 1,460.31 Austin, TX 11/30/2015 106507 Freedom Court Reporting, Inc. Jay Brooke Johnston depo 4072.00 411.25 11/30/2015 106507 Freedom Court Reporting, Inc. John Haley depo 4072.00 463.75 11/30/2015 106507 Freedom Court Reporting, Inc. John Haley-cont'd depo 4072.00 315.00 11/30/2015 106507 Freedom Court Reporting, Inc. Lanny Vines depo 4072.00 516.25 11/30/2015 106507 Freedom Court Reporting, Inc. James O. Finney, Jr. 4072.00 297.50 11/30/2015 106507 Freedom Court Reporting, Inc. Sam Johnson depo 4072.00 210.00 11/30/2015 106507 Freedom Court Reporting, Inc. John Lauriello depo 4072.00 315.00 11/30/2015 106507 Freedom Court Reporting, Inc. Virginia Greene depo 4072.00 297.50 11/30/2015 106507 Freedom Court Reporting, Inc. Kenenth Randall depo 4072.00 428.75 11/30/2015 106508 KW Design, LLC Jury exhibit/graphics 4051.02 100.00 11/30/2015 106510 Card Services Creating Quality Courts article 4051.02 38.00 11/30/2015 9999 West Payment Center October Westlaw charges 4038.04 3,269.14 11/30/2015 0 Xerox Expense-In House - copies for focus groups 4080.01 1,951.50 and exhibits for exhibit list 12/1/2015 0 Postage 4061.01 0.48 12/2/2015 106274 Freedom Court Reporting, Inc. Deposition/Dain Donelson 4072.00 1,623.83 12/4/2015 0 Postage 4061.01 1.46 12/8/2015 106528 JAMS, Inc. November services/Hon. Stanley Birch 4031.00 3,687.40 12/8/2015 106535 Reynolds Legal Solutions, LLC Legal services 4040.00 6,241.40 12/8/2015 0 Freedom Court Reporting, Inc. 4072.00 1,153.65 12/9/2015 106602 MyOfficeProducts Lauriello case material 4051.02 148.50 12/10/2015 106585 Jury Trial Science, LLC Final cost for focus group 4031.00 15,841.19 12/10/2015 106587 Birmingham Reporting Service Clay Ragsdale video depo 4072.00 680.00 12/10/2015 106587 Birmingham Reporting Service Jack Drake video depo 4072.00 595.00 12/10/2015 106587 Birmingham Reporting Service Alan Gassman video depo 4072.00 680.00 12/10/2015 106587 Birmingham Reporting Service Gusty Yearout video depo 4072.00 425.00 12/10/2015 106587 Birmingham Reporting Service Proceedings before Judge Ballard 4072.00 940.00 12/10/2015 106591 Veritext Corporate Services, Inc. Roger Kirby video depo 4072.00 850.33 12/11/2015 106600 Griffith Research Consulting, LLC Services 10/3/15-12/10/15 4031.00 5,525.00 12/11/2015 106720 Veritext Corporate Services, Inc. Michael Klausner video depo 4072.00 1,019.50 12/11/2015 106720 Veritext Corporate Services, Inc. David Guin video depo 4072.00 355.33 12/11/2015 0 Postage 4061.01 0.97 12/11/2015 106721 American Express DHB/Pacer subscription 4051.02 1.40 12/14/2015 106735 Ralph D. Cook Airfare/parking/taxi-Philadelphia, PA 4052.01 1,300.20 12/14/2015 0 Postage 4061.01 0.48 12/15/2015 9999 Brian Vines Airfare/hotel/meals-reimbursement 4052.01 5,677.62
7/29/2016 9:23 AM Page: 16 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 12/15/2015 106745 John W. Haley AmEx/Delta Airlines to NY 4012.01 632.20 12/15/2015 0 Postage 4061.01 5.95 12/18/2015 9999 Federal Express Overnight shipments 4061.03 45.68 12/18/2015 0 Xerox Expense-In House 4080.01 401.25 12/21/2015 106783 Birmingham Reporting Service Half day/motion hearing 4072.00 175.00 12/21/2015 0 Postage 4061.01 0.97 12/23/2015 106810 Jury Trial Science, LLC Final cost for mock trial 4031.00 15,640.02 12/23/2015 0 Postage 4061.01 0.48 12/28/2015 106640 Birmingham Reporting Service Transcript of Proceedings 4072.00 266.00 12/28/2015 0 Postage 4061.01 0.97 12/31/2015 0 Refund/Francis Law, LLC 4082.00 -10,808.19 12/31/2015 0 Refund/Somerville, LLC 4082.00 -6,168.49 12/31/2015 0 Refund/Somerville, LLC - Tucker fee 4082.00 -23,961.07 12/31/2015 106821 Benton & Centeno, LLP Legal services-12/7-12/23/15 4040.00 9,792.35 12/31/2015 106834 Granof International Group, LLC Services 12/9-12/10/15 4031.00 3,250.00 1/4/2016 106657 Freedom Court Reporting, Inc. Deposition & exhibits/Sean Coffey 4072.00 2,620.40 1/4/2016 106657 Freedom Court Reporting, Inc. Deposition & exhibits/Dave G. Borden 4072.00 1,472.70 1/4/2016 106657 Freedom Court Reporting, Inc. Deposition & exhibits/Stephanie Yates 4072.00 467.95 1/5/2016 106864 Hochberg ADR Mediation deposit-1/15/16 4040.00 8,333.00 1/5/2016 106865 Freedom Court Reporting, Inc. Sean Coffey transcript 4072.00 305.20 1/5/2016 0 USB drive for document management/Sarah 4051.02 15.00 Nelson 1/5/2016 0 Postage 4061.01 1.94 1/6/2016 106874 American Express SAP/travel expenses 4052.02 293.55 1/6/2016 0 Xerox Expense-In House 4080.01 37.50 1/7/2016 106880 Francis Law, LLC Reimbursement of expert/depo expenses 4031.00 41,788.13 1/7/2016 106880 Francis Law, LLC Reimbursement of expert/depo expenses 4017.08 1,433.84 1/7/2016 0 Postage 4061.01 0.48 1/8/2016 0 Refund/Francis Law, LLC 4082.00 -7,331.33 1/10/2016 0 Xerox Expense-In House 4080.01 31.25 1/14/2016 106950 Andi Marquez Reimbursement/courthouse parking 4051.02 18.00 1/15/2016 9999 Brian Vines Travel expense reimbursement 4052.02 727.83 1/15/2016 106959 Tempe Smith Lexington meetings/hotel-meals-mileage 4052.02 884.97 1/20/2016 9999 Federal Express Overnight shipments 4061.03 46.21 1/20/2016 9999 Federal Express Overnight shipments 4061.03 61.21 1/20/2016 9999 Federal Express Overnight shipments 4061.03 43.99 1/20/2016 9999 Federal Express Overnight shipments 4061.03 27.47 1/20/2016 0 Postage 4061.01 1.46 1/21/2016 106981 KW Design, LLC Jury exhibit graphics 4051.02 3,500.00 1/21/2016 106983 Card Services Subpoena/Alacourt.com 4051.01 13.00 1/21/2016 107001 Freedom Court Reporting, Inc. Eric Green transcript 4072.00 2,045.60 1/21/2016 0 Postage 4061.01 0.97 1/22/2016 107013 American Express SAP/travel expenses-New York, NY 4052.02 8,288.85 1/25/2016 107022 John W. Haley Travel expenses/New York-12/9-14 4052.02 6,344.60 1/25/2016 107023 Veritext New York Reporting Co. Lee Benton transcript 4072.00 1,188.39
7/29/2016 9:23 AM Page: 17 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 1/26/2016 0 Postage 4061.01 0.97 1/29/2016 107047 Benton & Centeno, LLP Legal services through 1/26/2016 4040.00 10,608.83 1/29/2016 107050 Veritext Corporate Services, Inc. Steven Walt transcript 4072.00 1,438.95 1/29/2016 107054 Steven Walt Consultation/prep/deposition fees 4031.00 28,795.00 1/29/2016 107059 Source One Legal Copy, Inc. Copying/printing/binding 4080.03 1,315.63 1/31/2016 107091 Garrett Zoghby Mileage reimbursement 4052.04 2.16 2/2/2016 0 Xerox Expense-In House 4080.01 168.75 2/3/2016 107121 Birmingham Reporting Service Judge Ballard proceedings 4072.00 424.00 2/4/2016 0 USB drive to document management/Phillip 4051.02 10.00 2/5/2016 9999 Brian Vines Airfare/hotel/meals/cabs-Bham 4052.01 4,206.67 2/5/2016 107147 JAMS, Inc. Hon. Stanley Birch/January services 4031.00 192.50 2/5/2016 107153 Veritext New York Reporting Co. Lee Squitieri transcript 4072.00 1,053.15 2/8/2016 107180 Freedom Court Reporting, Inc. Caroline Hardin transcript 4072.00 186.85 2/8/2016 107195 Freedom Court Reporting, Inc. E. Mac Crawford transcript 4072.00 409.00 2/8/2016 0 Postage & Shipping 4017.07 0.97 2/9/2016 0 Xerox Expense-In House 4080.01 348.75 2/10/2016 107208 Source One Legal Copy, Inc. B/W documents printed/tabbed 4080.03 4,947.01 2/11/2016 107353 Birmingham Reporting Service Motion hearing for Lauriello 11/13 & 11/17 4051.02 2,051.50 2/12/2016 107218 Westin Birmingham, The 50% deposit/Lauriello trial guest rooms 4052.01 28,775.75 2/16/2016 0 USB drive for document management/Dax 4051.02 15.00 2/16/2016 107243 Source One Legal Copy, Inc. Color trial exhibits 4080.03 181.50 2/16/2016 107366 Zoe's Restaurants, LLC Lunch/Trial team 4051.02 80.85 2/17/2016 0 USB drives for document management/Dax 4051.02 165.00 2/18/2016 107262 Garrett Zoghby Mileage reimbursement 4052.04 4.32 2/18/2016 9999 West Payment Center December Westlaw research 4038.04 2,756.65 2/19/2016 9999 West Payment Center January Westlaw research 4038.04 4,239.19 2/19/2016 107275 Justin Ware Mileage reimbursement 4052.04 8.10 2/19/2016 107277 Francis Law, LLC 50% share/deposition bills 4072.00 1,780.59 2/19/2016 9999 West Payment Center November Westlaw research 4038.04 4,147.45 2/22/2016 107278 Justin Ware Lunch for trial team 4051.02 54.90 2/22/2016 107279 Garrett Zoghby Reimb/Newk's lunch for trial team 4051.02 155.10 2/23/2016 9999 Federal Express Overnight shipments 4061.03 101.45 2/23/2016 9999 Federal Express Overnight shipments 4061.03 92.39 2/23/2016 9999 Federal Express Overnight shipments 4061.03 26.21 2/23/2016 9999 Federal Express Overnight shipments 4061.03 27.07 2/24/2016 107301 American Express SAP/travel-trips to NYC 4052.02 9,266.46 2/25/2016 107312 Source One Legal Copy, Inc. B/W & color printing 4080.03 7,291.64 2/25/2016 0 Refund/Francis Law, LLC 4082.00 -13,131.48 2/26/2016 107319 Garrett Zoghby Mileage reimbursement 4052.04 29.16 2/26/2016 107333 Andi Marquez Reimb/Rosatos Deli-Lunch-2/19/16 4051.02 26.26 2/26/2016 107333 Andi Marquez Reimb/Cantina Laredo-Lunch-2/20/16 4051.02 83.20 2/26/2016 107333 Andi Marquez Reimb/Zoe's-Lunch-2/18/16 4051.02 74.02 2/29/2016 107609 Zoe's Restaurants, LLC Lunch/Lauriello team 4051.02 94.39 3/2/2016 107401 Veritext New York Reporting Co. Deposition/William Lerach 4072.00 460.00 3/3/2016 107624 Benton & Centeno, LLP Services through 2/29/2016 4040.00 300.00 7/29/2016 9:23 AM Page: 18 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 3/3/2016 107625 Tempe Smith Mileage/meals-hearings & trial prep 4052.01 396.88 3/3/2016 107631 Hochberg ADR Mediation fee-Feb 1 thru Feb 11 4031.00 900.00 3/4/2016 107638 Justin Ware Mileage reimbursement 4052.04 10.80 3/4/2016 9999 Chase Card Services JRM/travel expenses 4052.02 219.72 3/7/2016 107664 File & ServeXpress, LLC Case involvement/research fees 4051.01 10.00 3/8/2016 107682 Winning Works, LLC Online/telephone/interview/survey costs 4031.00 13,839.48 3/8/2016 107689 Trial by Design, Inc. Retainer fee 4031.00 10,000.00 3/8/2016 9999 Brian Vines Airfare/lodging/meals/mileage 4052.01 7,071.62 reimbursement 3/8/2016 0 Xerox Expense-In House 4080.01 461.25 3/9/2016 107705 JAMS, Inc. Hon. Stanley Birch/February services 4031.00 11,564.95 3/11/2016 0 Miscellaneous Client Expense/Trial/War Room 4051.02 446.85 supplies 3/11/2016 0 Miscellaneous Client Expense/Trial/War Room 4051.02 399.74 supplies 3/11/2016 107717 KW Design, LLC Jury exhibit graphics 4031.00 7,650.00 3/11/2016 107728 Card Services Filing fee/Alacourt.com 4051.01 64.00 3/14/2016 0 Postage 4061.01 1.46 3/15/2016 107749 Birmingham Reporting Service Rough draft/final transcript of 4072.00 1,740.25 proceedings-2/12/16 3/15/2016 107749 Birmingham Reporting Service Rough draft/final transcript of 4072.00 1,560.00 proceedings-2/16/16 3/15/2016 107749 Birmingham Reporting Service Rough draft/final transcript of 4072.00 1,900.00 proceedings-2/17/16 3/15/2016 107749 Birmingham Reporting Service Proceedings before Judge Ballard-2/22/16 4072.00 566.22 3/15/2016 107749 Birmingham Reporting Service Rough draft/final transcript of 4072.00 1,756.25 proceedings-2/19/16 3/16/2016 0 Refund/Sheraton & Westin Birmingham 4082.00 -16,486.04 3/17/2016 0 Xerox Expense-In House 4080.01 125.00 3/18/2016 107777 Justin Ware Mileage reimbursement 4052.04 91.26 3/22/2016 107799 David Feldman Worldwide, Inc. Randall K. Berger depo 4072.00 1,003.02 3/23/2016 0 Steve Moon investigation fee 660.00 3/23/2016 107810 Stephen L. Moon Mileage/expense reimbursement-Jan-Mar 4038.05 18.36 3/23/2016 107810 Stephen L. Moon Mileage/expense reimbursement-Jan-Mar 4038.05 114.48 3/23/2016 107810 Stephen L. Moon Mileage/expense reimbursement-Jan-Mar 4038.05 12.42 3/25/2016 107824 Birmingham Reporting Service Transcript of proceedings-2/29/16 4072.00 1,512.75 3/25/2016 107824 Birmingham Reporting Service Transcript of proceedings-3/10/16 4072.00 972.50 3/25/2016 107827 American Express SAP/travel expenses-trial 4052.02 1,555.17 3/25/2016 0 Refund/Somerville, LLC 4082.00 -13,523.44 3/30/2016 107850 Graham & Associates, Inc. Focus group recruits 4031.00 2,200.00 4/1/2016 107872 Steve Singer Expert fees thru 4/1/2016 - 150 hours 4031.00 150,000.00 4/1/2016 107877 Griffith Research Consulting, LLC Services through 2/29/2016/15.5 hrs @ 4031.00 10,075.00 $650hr 4/1/2016 0 Refund/Somerville, LLC 4082.00 -1,171.32 4/4/2016 9999 William B. Rubenstein Expert fee 4031.00 60,000.00 4/4/2016 107888 Somerville, LLC Reimb/50%-Gilardi & Co. fee 4031.00 13,084.88 4/6/2016 9999 Federal Express Overnight shipments 4061.03 83.41 7/29/2016 9:23 AM Page: 19 DOCUMENT 3314
Hare, Wynn, Newell & Newton Case Expense Report LAURIELLO, JOHN v. AIG; Caremark; MedPartners Area of Law: Fraud Status: Open
Date Ck # Payee Line Description Account Amount 4/6/2016 0 Refund/Somerville, LLC 4082.00 -40,018.75 4/6/2016 0 Refund/Somerville, LLC 4082.00 -15,000.00 4/8/2016 107900 Phillip Carter AV support expenses 4052.01 229.88 4/8/2016 0 Refund/Francis Law, LLC 4082.00 -69,249.35 4/8/2016 9999 Brian Vines Airfare/hotel/meals/Bham trial 4052.01 2,309.92 4/12/2016 107935 Freedom Court Reporting, Inc. Christopher M. James depo 4072.00 328.80 4/21/2016 108014 Somerville, LLC 50% share/Arthur Miller retainer 4031.00 7,500.00 4/22/2016 108027 Trial by Design, Inc. Consulting through 3/25/16 4031.00 21,781.25 4/22/2016 108037 White, Arnold & Dowd, P.C. Expert fee/Judge Clemon 4031.00 15,000.00 4/26/2016 108069 Birmingham Reporting Service Transcript of Sam Johnson/half day court 4072.00 852.50 4/26/2016 108071 Benton & Centeno, LLP Legal services through 3/28/16 4040.00 3,500.00 5/6/2016 108130 Ned Miltenberg Consulting services 4031.00 4,218.75 5/6/2016 108133 KW Design, LLC Jury exhibit graphics 4031.00 600.00 5/6/2016 108143 Freedom Court Reporting, Inc. Mac Crawford e-transcript/Gannon v. 4072.00 310.00 MedPartners 5/6/2016 108145 Winning Works, LLC Consulting-12/30/15-4/1/16 4031.00 87,953.00 5/11/2016 108177 Benton & Centeno, LLP Legal services through 3/29/2016 4040.00 689.52 5/17/2016 0 Refund/Francis Law, LLC 4082.00 -9,277.51 6/6/2016 0 Refund/Somerville, LLC 4082.00 -24,167.82 6/6/2016 0 Refund/Somerville, LLC 4082.00 -9,277.51 6/7/2016 108352 White, Arnold & Dowd, P.C. Clemon/Bowen-services through 5/31/16 4031.00 67,370.00 6/13/2016 0 Postage 4061.01 177.00 6/15/2016 108668 Philadelphia Investment Banking Company Services/Jan-May 12, 2016 4031.00 45,960.45 6/15/2016 0 Refund/Francis Law, LLC 4082.00 -52,500.43 6/15/2016 0 Refund/Somerville, LLC 4082.00 -11,490.12 6/15/2016 0 Refund/Somerville, LLC 4082.00 -16,842.50 6/20/2016 0 Postage 4061.01 2.20 6/22/2016 9999 West Payment Center February Westlaw research 4038.04 6,960.92 6/22/2016 9999 West Payment Center March Westlaw research 4038.04 2,865.45 6/22/2016 108492 Freedom Court Reporting, Inc. Transcript copy 4072.00 206.50 6/22/2016 9999 West Payment Center April Westlaw research 4038.04 1,694.50 6/23/2016 9999 Federal Express Overnight shipments 4061.03 43.64 6/29/2016 0 Postage 4061.01 1.99 7/5/2016 0 Postage 4061.01 1.99 7/7/2016 108843 White, Arnold & Dowd, P.C. U. W. Clemon/services through 6/30/16 4031.00 18,270.00 7/12/2016 9999 West Payment Center May Westlaw research 4038.04 676.59 7/20/2016 0 Postage 4061.01 1.35 7/21/2016 0 July Westlaw research 4038.04 2,085.47 7/27/2016 108987 White, Arnold & Dowd, P.C. U. W. Clemon/services through 7/22/2016 4040.00 97,200.00 7/27/2016 9999 William B. Rubenstein Expert consulting through 7/15/2016 4031.00 43,567.50 7/29/2016 0 White, Arnold & Dowd, P.C. 4040.00 16,630.00 Grand Total 1,468,479.42
7/29/2016 9:23 AM Page: 20 DOCUMENT 3314
Exhibit F DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314 DOCUMENT 3314
Exhibit G DOCUMENT 3314
S O M E R V I L L E , L L C John Q. Somerville
300 Richard Arrington, Jr. Blvd. North Suite 710 Birmingham, Alabama 35203 205-871-2183
Statement Through July 28, 2016
File #1124 Re: Johnson, et al. v. Caremark, Rx, L.L.C., et al.
Firm Expenses:
Photocopies/Document Fees: 12/31/03 Copies 92 @ 0.15 for December 2003 $ 13.80 1/31/04 Copies 76 @ 0.15 for January 2004 $ 11.40 2/27/04 Copies 21 @ 0.15 for February 2004 $ 3.15 3/31/04 Copies 878 @ 0.15 for March 2004 $ 131.70 4/30/04 Copies 295 @ 0.15 for April 2004 $ 44.25 5/31/04 Copies 69 @ 0.15 for May 2004 $ 10.35 6/30/04 Copies 555@ 0.15 for June 2004 $ 83.25 8/30/04 Copies 382 @ 0.15 for August 2004 $ 57.30 9/30/04 Copies 545 @ 0.15 for September 2004 $ 81.75 10/31/04 Copies 481 @ 0.15 for October 2004 $ 72.15 11/30/04 Copies 40 @ 0.15 for November 2004 $ 6.00 12/31/04 Copies 163 @ 0.15 for December 2004 $ 24.45 2/28/05 Copies 293 @ 0.15 for February 2005 $ 43.95 3/22/05 A-1 Print & Copy Center $ 551.19 3/31/05 Copies 167 @ 0.15 for March 2005 $ 25.05 5/30/05 Copies 280 @ 0.15 for May 2005 $ 42.00 6/30/05 Copies 484 @ 0.15 for June 2005 $ 72.60 9/30/05 Copies 63 @ 0.15 for September 2005 $ 9.45 11/30/05 Copies 41 @ 0.15 for November 2005 $ 6.15 12/31/05 Copies 100 @ 0.15 for December 2005 $ 15.00 8/30/06 Copies 258 @ 0.15 for August 2006 $ 38.70 11/30/06 Copies 220 @ 0.15 for November 2006 $ 33.00 2/27/07 Copies 336 @ 0.15 for February 2007 $ 50.40 3/31/07 Copies 829 @ 0.15 for March 2007 $ 124.35 4/30/07 Copies 69 @ 0.15 for April 2007 $ 10.35 7/31/07 Copies 462 @ 0.15 for July 2007 $ 69.30 11/30/07 Copies 159 @ 0.15 for November 2007 $ 23.85 12/31/07 Copies 188 @ 0.15 for December 2007 $ 28.20 6/30/07 Copies 2,512 @ 0.15 for June 2007 $ 376.80 1/2/08 Certified copies from Jefferson County Clerk's office $ 10.00 1/31/08 Copies 3,808 @ 0.15 for January 2008 $ 571.20 7/31/08 Copies 76 @ 0.15 for July 2008 $ 11.40 3/31/09 Pacer charges - online court document retrieval (federal) $ 2.00 1
DOCUMENT 3314
3/31/10 Copies 36 @ 0.15 for March 2010 $ 5.40 4/30/10 Copies 1,154 @ 0.15 for April 2010 $ 173.10 6/30/09 Pacer charges - online court document retrieval (federal) $ 4.80 6/30/10 Copies 155 @ 0.15 for June 2010 $ 23.25 7/30/10 Copies 1,363 @ 0.15 for July 2010 $ 204.45 4/29/11 Copies 11,710 @ 0.15 for August 2010 - April 2011 $ 1,756.50 5/31/11 Copies 4,856 @ 0.15 for May 2011 $ 728.40 6/30/11 Copies 4,369 @ 0.15 for June 2011 $ 655.35 7/29/11 Copies 6,182 @ 0.15 for July 2011 $ 927.30 8/31/11 Copies 9,761 @ 0.15 for August 2011 $ 1,464.15 9/30/11 Copies 5,493 @ 0.15 for September 2011 $ 823.95 10/31/11 Copies 4,612 @ 0.15 for October 2011 $ 691.80 11/30/11 Copies 1,047 @ 0.15 for November 2011 $ 157.05 12/30/11 Copies 614 @ 0.15 for December 2011 $ 92.10 12/31/11 Pacer charges - online court document retrieval (federal) $ 6.32 1/31/12 Copies 2,646 @ 0.15 for January 2012 $ 35.85 2/29/12 Copies 4,993 @ 0.15 for January 2012 $ 748.95 3/30/12 Copies 9,394 @ 0.15 for March 2012 $ 1,409.10 4/30/12 Copies 15,344 @ 0.15 for April 2012 $ 2,301.60 5/31/12 Copies 30,241 @ 0.15 for July 2012 $ 4,536.15 5/31/12 Archives Security, Inc. $ 92.00 6/29/12 Copies 3,719 @ 0.15 for June 2012 $ 557.85 6/30/12 Pacer charges - online court document retrieval (federal) $ 1.50 7/31/12 Copies 2,889 @ 0.15 for July 2012 $ 433.35 8/31/12 Copies 56 @ 0.15 for August 2012 $ 8.40 9/28/12 Copies 4,177 @ 0.15 for September 2012 $ 626.55 10/31/12 Copies 36 @ 0.15 for October 2012 $ 5.40 11/30/12 Copies 255 @ 0.15 for November 2012 $ 38.25 9/30/14 Copies 98 @ 0.15 for September 2014 $ 14.70 10/31/14 Copies 302 @ 0.15 for October 2014 $ 45.30 11/30/14 Copies 205 @ 0.15 for November 2014 $ 30.75 4/30/15 Copies 4,230 @ 0.15 for April 2015 $ 634.50 5/29/15 Copies 6,457 @ 0.15 for May 2015 $ 968.55 6/30/15 Copies 2,100 @ 0.15 for June 2015 $ 315.00 7/31/15 Copies 2,863 @ 0.15 for July 2015 $ 429.45 8/31/15 Copies 7,093 @ 0.15 for August 2015 $ 1,063.95 9/30/15 Copies 3,407 @ 0.15 for September 2015 $ 511.05 10/16/15 Archives Security - Retrieval of documents $ 189.87 10/30/15 Copies 7,389 @ 0.15 for October 2015 $ 1,108.35 11/30/15 Copies 4,028 @ 0.15 for November 2015 $ 604.20 12/31/15 Copies 10,882 @ 0.15 for December 2015 $ 1,632.30 1/31/16 Copies 8,397 @ 0.15 for January 2016 $ 1,259.55 2/28/16 Copies 8,775 @ 0.15 for February 2016 $ 1,316.40 3/31/16 Copies 1,930 @ 0.15 for March 2016 $ 289.50 4/30/16 Copies 1,055 @ 0.15 for April 2016 $ 158.25 5/30/16 Copies 2,146 @ 0.15 for May 2016 $ 321.90 6/30/16 Copies 868 @ 0.15 for June 2016 $ 130.20 $ 32,187.13
2
DOCUMENT 3314
Postage: 12/31/03 Postage for December 2003 $ 1.11 2/27/04 Postage for February 2004 $ 2.96 9/30/04 Postage for September 2004 $ 3.00 2/28/05 Postage for February 2005 $ 5.81 5/30/05 Postage for May 2005 $ 2.08 1/31/07 Postage for January 2007 $ 3.12 4/3/09 Federal Express - documents sent to expert $ 76.67 4/6/09 Federal Express - documents sent to expert $ 44.96 4/16/09 Federal Express - documents sent to expert $ 43.99 5/20/11 Federal Express - ship documents New York for expert $ 146.92 5/24/11 Federal Express - ship documents from New York (expert) $ 67.22 3/15/12 Federal Express - documents to Gilardi & Co. $ 28.14 11/20/14 USPS - overnight package to Gilardi & Co. $ 19.99 5/29/15 Postage for May 2015 $ 11.62 4/4/16 National Bank of Commerce (Wire transfer fee) (Gilardi) $ 18.00 4/20/16 Postage (retainer check by Express Mail to expert) $ 22.95 5/3/16 Postage (documents to expert) $ 82.40 6/17/16 Postage (documents to New York for meeting with expert) $ 40.50 $ 621.44
Filing Fees: 12/15/03 Alabama Secretary of State $ 5.00 3/19/12 Jefferson County Circuit Court $ 13.05 5/28/12 Jefferson County Circuit Court $ 26.10 $ 44.15
Legal Research: 1/31/04 Online research (Westlaw) for January 2004 $ 304.59 5/31/04 Online research (Westlaw) for May 2004 $ 260.12 9/30/04 Online research (Westlaw) for September 2004 $ 75.16 12/31/04 Online research (Westlaw) for December 2004 $ 95.35 2/28/05 Online research (Westlaw) for February 2005 $ 460.73 12/31/05 Online research (Westlaw) for December 2005 $ 185.46 10/31/06 Online research (Westlaw) for October 2006 $ 114.00 3/31/07 Online research (Westlaw) for March 2007 $ 310.54 4/30/07 Online research (Westlaw) for April 2007 $ 56.57 5/31/07 Online research (Westlaw) for May 2007 $ 489.10 6/30/07 Online research (Westlaw) for June 2007 $ 21.20 8/31/07 Online research (Westlaw) for August 2007 $ 138.11 1/31/08 Online research (Westlaw) for January 2008 $ 662.36 2/29/08 Online research (Westlaw) for February 2008 $ 52.08 1/31/09 Online research (Westlaw) for January 2009 $ 299.09 2/28/09 Online research (Westlaw) for February 2009 $ 6.00 3/31/09 Online research (Westlaw) for March 2009 $ 652.93 7/31/09 Online research (Westlaw) for July 2009 $ 129.00 8/31/09 Online research (Westlaw) for August 2009 $ 711.00 4/30/10 Online research (Westlaw) for April 2010 $ 47.50 $ 5,070.89 3
DOCUMENT 3314
Meals, Hotels, Transportation:
4/19/09 Trip to New York for meeting with expert (hotel and meals) $ 2,400.83 5/9/11 Trip to Colorado to for deposition of Gene Cauley (hotel, $ 1,166.58 transportation and meals) 6/27/11 Trip to Colorado to for continuation of deposition of Gene $ 3,011.54 Cauley (hotel, transportation and meals; travel for T. Francis) 1/26/12 Trip to San Diego for deposition of Bill Lerach and Darren $ 4,490.42 Robbins (hotel, transportation, meals and airport parking) 3/28/12 Trip to Boston for deposition of Professor Rubenstein (hotel, $ 3,225.47 transportation, meals and airport parking) 4/4/12 Trip to San Francisco for deposition of Gilardi & Co (hotel, $ 4,066.17 transportation, meals and airport parking) 5/2/12 Trip to Atlanta for deposition of Albert Pearson (hotel and $ 1,154.80 meals) 9/12/12 Trip to Newport Beach, CA for mediation (hotel, transportation, $ 3,707.33 meals and airport parking) 11/10/14 Trip to San Francisco for meeting with Gilardi & Co. (hotel, $ 2,725.69 transportation, meals and airport parking) 6/19/15 Trip to Philadelphia for meeting with expert (transportation) $ 1,039.84 8/4/15 Trip to Washington, D.C. to meet with witness (Steve Toll) $ 596.20 (transportation) 10/11/15 Trip to Philadelphia for deposition of expert Alan Miller (hotel, $ 2,282.54 transportation, meals and airport parking) (deposition cancelled) 12/1/15 Trip to New York for deposition of Eric Green (hotel, $ 6,071.96 transportation and meals) (travel expenses for JimPewitt) 12/13/15 Trip to Philadelphia for deposition of expert Alan Miller (hotel, $ 2,740.64 transportation, meals and airport parking) (travel for T. Francis) 1/14/16 Trip to New York for mediation (hotel, transportation and meals) $ 3,239.52 1/22/16 Trip to San Diego for deposition of Bill Lerach (transportation) $ 1,346.20 1/26/16 Trip to Tampa for deposition of Richard Six (hotel, transportation $ 2,143.75 meals and airport parking) 6/20/16 Trip to New York to meet with expert (hotel, transportation, $ 3,642.82 meals and airport parking) $ 49,052.30
Contract Labor: 7/28/16 James Pewitt (Trip to New York for Eric Green deposition, $ 17,508.50 review of documents, research and consultation on discovery issues)
Total Somerville, LLC out-of-pocket expenses $ 104,484.41
4
DOCUMENT 3314
Shared Expenses paid by Somerville, LLC
Experts/Consultants: 4/4/12 Kenneth Randall $ 22,125.00 5/11/12 Kenneth Randall $ 16,000.00 6/8/12 Kenneth Randall - expert fee $ 19,125.00 4/20/16 Arthur Miller $ 15,000.00 7/28/16 Arthur Miller $ 1,000.00 $ 73,250.00
Court Reporters/Transcripts: 6/14/04 American Court Reporting Service $ 435.00 8/30/04 American Court Reporting Service $ 230.00 10/12/04 American Court Reporting Service $ 272.50 10/21/11 Freedom Court Reporting $ 775.50 3/27/12 Freedom Court Reporting $ 325.80 5/9/12 Freedom Court Reporting $ 699.95 6/2/16 Veritext $ 902.49 6/2/16 Michael Musetta & Associates $ 129.00 $ 3,770.00
Notice (re class cert): 4/4/16 Gilardi & Co. $ 26,169.77
Miscellaneous: 4/23/10 Franklin County Clerk for copies of Taff file $ 1,158.50 4/27/10 Franklin County Clerk for copies of Taff file $ 1,246.50 4/29/10 Franklin County Clerk for copies of Taff file $ 718.00 $ 3,123.00
Total shared expenses paid directly by Somerville, LLC $105,313.01
5
DOCUMENT 3315 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 5 DOCUMENT 3315 DOCUMENT 3315 DOCUMENT 3315 DOCUMENT 3315 DOCUMENT 3315 DOCUMENT 3315 DOCUMENT 3316 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 6 DOCUMENT 3316 DOCUMENT 3316 DOCUMENT 3316 DOCUMENT 3316 DOCUMENT 3317 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 7 DOCUMENT 3317 DOCUMENT 3317 DOCUMENT 3317 DOCUMENT 3317 DOCUMENT 3317 DOCUMENT 3317 DOCUMENT 3317 DOCUMENT 3318 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3318 DOCUMENT 3319 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 9 DOCUMENT 3319 5/31/2016 Pages 1 to 4 Page 1 Page 3 1 IN THE CIRCUIT COURT OF 1 APPEARING FOR THE DEFENDANT AIG: 2 JEFFERSON COUNTY, ALABAMA 2 M. Christian King, Esq. 3 3 Mary M. "Molly" Drake, Esq. 4 CIVIL ACTION NO.: CV-2003-6630 4 LIGHTFOOT FRANKLIN & WHITE 5 5 400 20th Street North 6 SAM JOHNSON, et al. 6 Birmingham, Alabama 35203 7 Plaintiffs, 7 8 vs. 8 Joel Kurtzberg, Esq. 9 CAREMARK RX, et al., 9 CAHILL GORDON & REINDEL 10 Defendants. 10 80 Pine Street 11 11 New York, New York 10005 12 12 13 TRANSCRIPT OF PROCEEDINGS 13 FOR THE DEFENDANT CAREMARK: 14 14 David G. Hymer, Esq. 15 Date: May 31, 2016 15 Matthew Lembke, Esq. 16 Time: 2:30 p.m. 16 BRADLEY ARANT BOULT CUMMINGS 17 Before: Hon. Pat Ballard 17 1819 5th Avenue North 18 18 Birmingham, Alabama 35203 19 19 20 20 Philip E. Holladay, Esq. 21 21 KING & SPALDING 22 22 1180 Peachtree Street 23 23 Atlanta, Georgia 30309 24 COURT REPORTER: 24 25 Stephanie Burton, CCR 25
Page 2 Page 4 1 A P P E A R A N C E S 1 Craig Singer, Esq. 2 APPEARING FOR THE PLAINTIFFS: 2 WILLIAMS & CONNOLLY 3 Scott Powell, Esq. 3 725 12th Street NW 4 Bruce McKee, Esq. 4 Washington, D.C. 20005 5 Brian M. Vines, Esq. 5 6 Tempe Smith, Esq. 6 7 HARE WYNN NEWELL & NEWTON 7 8 2025 3rd Avenue North, Suite 800 8 9 Birmingham, Alabama 35203 9 10 10 11 John Somerville, Esq. 11 12 SOMERVILLE, LLC 12 13 420 20th Street North #2550 13 14 Birmingham, Alabama 35203 14 15 15 16 J. Timothy Francis, Esq. 16 17 FRANCIS LAW, LLC 17 18 700 Title Building 18 19 300 21st Street North 19 20 Birmingham, Alabama 35203 20 21 21 22 Lanny Vines, Esq. 22 23 LANNY VINES & ASSOCIATES 23 24 2142 Highland Avenue South 24 25 Birmingham, Alabama 35205 25
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 5 to 8 Page 5 Page 7 1 P R O C E E D I N G S 1 months, of the intensity with which this case 2 2 has been litigated. 3 THE COURT: I wish that I could 3 As far as the detail of what we're 4 say that I have read the settlement agreement 4 asking you to do today and to explain why we 5 in its entirety, but I have not. But I've 5 are asking you to do today what the motion 6 gotten a good start on it. I appreciate the 6 seeks, to answer any questions that you may 7 care with which y'all have attempted to 7 have with respect to what we're asking of the 8 address all of the complexities that are 8 Court, I'm going to let Bruce walk the Court 9 attendant here. That old saying about the 9 through those issues with you. 10 devil's in the details. There's lots of room 10 THE COURT: Okay. While he is 11 in a case like this that's been going as long 11 approaching, in my reading, one thing became 12 as this has and litigated with this intensity 12 glaringly obvious. That is that the 13 for there to be devils hiding in the details. 13 defendants are disclaiming occupying a 14 I definitely appreciate the effort that y'all 14 position of being proponents of the 15 have gone through. It's obvious from the 15 settlement. Is that a fair characterization? 16 drafting that y'all have done a good job to 16 MR. KING: Yes, sir. In light of 17 catch all the issues that could arise and try 17 the controversies that have occurred, we 18 to address this as clearly as possible. I 18 wanted to make it crystal clear in the 19 appreciate that. 19 paperwork that we are so disclaiming any such 20 I think with that, I'm going to 20 responsibility. 21 let y'all each speak in turn. Tell me what 21 THE COURT: In my view, you have 22 you want to tell me about where we're at, 22 succeeded admirably. I know that that was a 23 where we find ourselves today. 23 major bone of contention with respect to the 24 MR. POWELL: With the Court's 24 position that Caremark occupied at the time of 25 permission, Scott Powell for the class. I'm 25 the 1998-99 litigation. And y'all have done,
Page 6 Page 8 1 going to make some brief introductory remarks, 1 in my view, a very good job of taking a 2 then have Mr. McKee walk the Court through the 2 position and making it clear. It didn't 3 various papers that have been filed and the 3 matter to me whether you took one of saying we 4 process by which we are asking the Court to 4 are joint proponents or whether you took one 5 approval preliminarily this settlement. 5 of saying we're not. The importance, I think, 6 As the Court is aware, this case 6 for y'all is that it's clear what position you 7 was filed in October of 2003, about 7 occupy. And I think y'all have done an 8 twelve-and-a-half years ago. The class has 8 admirable job of making that clear. 9 waited a long time for this day. I can say to 9 MR. KING: Yes, sir. 10 you with a straight face it is the most 10 THE COURT: And I am taking it at 11 fiercely litigated case I have ever been 11 face value. I'm not going to try to assume 12 associated with. It has been hard fought on 12 something different from that. So that's -- I 13 both sides. There was no quarter given and no 13 just thought I would remark on that and get 14 quarter taken and no quarter asked for. So 14 confirmation that I was reading you as loudly 15 I'm glad, though, that we are here. 15 and as clearly as I thought that I was. 16 As we reported to the Court a 16 MR. HYMER: Thank you, Judge. 17 little while back, we have reached a 17 MR. KING: Yes, sir. 18 settlement. The money is $310 million to the 18 THE COURT: And I have no problem 19 class. Of course, the details are outlined in 19 with that. 20 the plaintiffs' motion for preliminary 20 MR. MCKEE: Bruce McKee from Hare 21 approval, which I would like to add that when 21 Wynn for the class. This is technically the 22 we filed these papers with the Court on 22 plaintiffs' motion, so the plaintiffs will 23 Saturday, it was document entry number 3,269, 23 speak. Unless the Court has a different 24 which gives the Court a flavor, that I know 24 preference about a plan of how we proceed 25 you already had for the last year and four 25 today, here is how we thought we would do it.
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 9 to 12 Page 9 Page 11 1 First, on Saturday morning, we filed our 1 Court will set a date for the Final Fairness 2 motion for preliminary approval. And with the 2 Hearing and set deadline dates for objections 3 exhibits, that totaled 151 pages. So first, I 3 to be filed. 4 plan to walk through those exhibits one by one 4 So to run over those again real 5 and just briefly identify what each document 5 quickly just as an orientation of where I will 6 is just for the purpose of orientation. Then 6 be headed with this, the relief we seek are, 7 second, we have broken down into four 7 one, preliminary approval of the amount of the 8 categories the items or the issues that we 8 settlement; number two, preliminary approval 9 believe is the focus of today's hearings. 9 of the Plan of Allocation; number three, 10 Those four categories are, one, the amount of 10 approval of the plan for notice; number four, 11 the proposed settlement; two, the plan for 11 approval of the escrow and claims 12 giving notice to the class; three, the Plan of 12 administration procedures; and then number 13 Allocation; and four, the claims 13 five, setting a date for the final hearing. 14 administration process. 14 Now, with the documents, the first 15 Now, this is not an adversarial 15 document was the motion itself. It has three 16 hearing. We expect that the Court will 16 exhibits. Exhibit 1 is the main exhibit. And 17 encourage us to be informal and have a give 17 I'll come back to that because that's the big 18 and take, you know, questions. And the 18 one. Exhibits 2 and 3 are short, ten pages or 19 defendants are not proponents. The 19 less. Exhibit 2 is a copy of the settlement 20 Stipulation makes that clear that they have no 20 notice that was sent to the class in May 1999. 21 duties at this hearing, and their silence is 21 That contains the detailed Plan of Allocation. 22 not to be taken to mean anything one way or 22 And the plaintiffs here seek approval to use 23 the other. We would invite defense counsel, 23 exactly that same Plan of Allocation here 24 though, at any time to speak up if I have 24 again in 2016. And I'll say more about that 25 unintentionally misstated something, just made 25 later.
Page 10 Page 12 1 a mistake on a date or something or any issue 1 Then Exhibit 3 is an itemized 2 that they want to make in additional comment 2 estimate from Gilardi and Company, LLC. We 3 about. We certainly have no objection to them 3 seek to hire Gilardi to be the Claims 4 making that as the issue comes up rather than 4 Administrator, to mail and to publish the 5 just saving everything to speak about at the 5 class notice, to maintain the website, and 6 end. 6 then to act as Claims Administrator. Gilardi 7 So to identify Saturday's filings, 7 was the Claims Administrator for the 1999 8 the plaintiff filed Plaintiffs Class's Motion 8 settlement, and Gilardi sent out the class 9 For Preliminary Approval of Proposed Class 9 certification notices that this Court approved 10 Action Settlement. There was only about 15 10 last year in 2015. So again, I'll come back 11 pages. This attempts to give a brief overview 11 to this exhibit later. 12 of the proposed settlement, and it sets out 12 Now, back to Exhibit 1, which is 13 the legal standards for preliminary review of 13 the main bulk of what was filed on Saturday. 14 a proposed class action settlement. Our 14 Exhibit 1 contains the "Stipulation and 15 motion seeks five specific elements of relief. 15 Agreement of Settlement." That's the full 16 Those five are, number one, that the Court 16 official title of the document. But from now 17 give preliminary approval of the $310 million 17 on, I'll just refer to that as the 18 settlement; number two, that the Court give 18 Stipulation. The Stipulation is 53 pages, and 19 preliminary approval of the Plan of 19 it contains all of the fine print about every 20 Allocation; number three, that the Court 20 element of the proposed settlement. There's a 21 approve of the forms of notice that will go to 21 table of contents in front that is broken down 22 the class members; number four, that the Court 22 into eleven Roman numerals. And then to the 23 will approve of the hiring of the escrow agent 23 Stipulation, there are nine exhibits that are 24 and the Claims Administrator that we have 24 labeled A through F. And the total page 25 proposed; and then, fifth and last, that the 25 number of all those exhibits is about 65
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 13 to 16 Page 13 Page 15 1 pages. 1 they've already been approved. Then the 2 So again, to identify then what 2 second claim form is the one that will be used 3 the exhibits are to the Stipulation of 3 by class members who did not file a claim in 4 Settlement. Exhibit A, the parties have 4 1999. That claim form would be longer and 5 drafted a proposed order should this Court 5 more detailed because those people have never 6 agree to give preliminary approval. So this 6 before submitted their information. 7 draft order, which is Exhibit A, covers all of 7 Exhibit D is a draft proposed 8 the issues that the Stipulation requires to be 8 final judgment order in case this Court does 9 decided. I want to remind the Court that in 9 grant preliminary approval and we move on to 10 the Stipulation, it's paragraph 10.3(a) at 10 the final hearing stage and the Court then 11 page 41. The Stipulation permits the parties 11 gives final approval. But just as I mentioned 12 to withdraw from the settlement if the Court 12 earlier about the preliminary order, the 13 issues a preliminary approval order that is 13 Stipulation provides that the parties can 14 materially different from Exhibit A. So if 14 cancel the settlement if the final order is 15 the Court believes that a material change is 15 materially different than what is proposed in 16 needed to the form of the order that we've 16 Exhibit D. 17 proposed, we request that the Court notify the 17 Then Exhibit E, this is the list 18 parties of what changes the Court thinks needs 18 from Gilardi that names the four class members 19 to be made to the order so that the parties 19 who opted out of this class in 2015. So those 20 can discuss that first and maybe come to a 20 four are no longer a member of this class, and 21 mutual agreement that that change is okay. 21 those four will not get any part of this 22 And I intend to end my presentation by coming 22 settlement. This list was filed with the 23 back to Exhibit A, to the proposed order, and 23 Court last year as part of Gilardi's report to 24 just walking the Court through that paragraph 24 the Court that it gave, giving the details of 25 by paragraph slowly so it's clear what it is 25 the 2015 class certification notice process.
Page 14 Page 16 1 we're asking the Court to approve and give the 1 So we have four opt-outs. 2 Court a chance to ask any final questions. 2 Then Exhibit F, this is the Escrow 3 Exhibit B to the Stipulation are 3 Agreement. The plaintiffs today ask the Court 4 the notices that we propose to send out to the 4 to approve of this Escrow Agreement being fair 5 class. There are three notices, so they're 5 to the class and commercially reasonable. 6 denominated Exhibits B-1, B-2 and B-3. B-1 is 6 Gilardi's parent corporation will be the 7 the Long-Form Notice. I'll come back to the 7 escrow agent, and the technical name of that 8 notices in detail later, but I'm just 8 entity is Computershare Trust Company, NA. So 9 identifying what we filed. B-2 and B-3 are 9 if the Court gives final approval, what will 10 the Short-Form Notices that will be mailed to 10 happen is the defendants will have 30 days 11 the class. There are two versions of that 11 after the final judgment to deposit the $310 12 Short-Form Notice. One version will go to the 12 million with this escrow agent. The escrow 13 class members who filed claims that were 13 agent holds the money and then passes it over 14 approved back in 1999. That's approximately 14 to the Claims Administrator, Gilardi, when the 15 18,000 class members. Then a different 15 Court and counsel for both parties report to 16 version of the notice, just slightly different 16 the escrow agent that the effective date has 17 worded, will go to all the other class 17 occurred and it's time to pass the money over. 18 members, those that did not file claims in 18 The effective date, quote 19 1999. 19 effective date, is defined in the Stipulation 20 Exhibit C are the claim forms. 20 at page 8. It's in paragraph 1.17. The 21 Again, there are two. They are C-1 and C-2. 21 effective date is this. If no appeal is taken 22 There are two different forms of claims, 22 within 42 days of this Court's final approval 23 because one will be used by those that already 23 order, then that's the effective date. But if 24 filed an approved claim back in 1999. And 24 an appeal is taken, the effective date is when 25 that claim form would be much shorter because 25 that appeal is dismissed or when the final
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 17 to 20 Page 17 Page 19 1 judgment is affirmed. 1 in 1999 were around $1 billion and that a fair 2 So that's the outline of the 2 settlement in that context would have been at 3 paperwork that was filed on Saturday. Now to 3 least 75 percent of the damages. The 4 the substance of what it is that we view 4 defendants had experts who would testify that 5 today's hearing is about and the specific 5 the amount of the damages actually was 6 issues that the Court is being asked to 6 probably zero. But in a worst case scenario 7 decide. In our view, the major elements of a 7 for them, only $400 million. The defendants 8 preliminary class action approval hearing are 8 pointed out that the class has already 9 these four. Number one, the Court has to 9 received $56 million. 10 determine that at a first glance, does the 10 So this Court knows, as Scott 11 relief being offered -- in this case, that's 11 mentioned, that every issue in this case, 12 $310 million. Does the relief being offered 12 every motion, every evidentiary issue has been 13 seem to be enough to be worth going forward, 13 hard fought, tooth and nail. Had the class 14 to giving class notice and going forward to a 14 won a verdict at trial, all of these issues 15 full hearing. So this is not the final 15 would have been appealed. So with the 16 approval that 310 million is adequate. It's 16 uncertainty of juries and knowing that unique 17 just a preliminary approval that, on first 17 and difficult legal issues would have been 18 blush, it appears that that's enough money to 18 raised on appeal, the plaintiffs submit that 19 at least be in the ballpark of what might 19 $310 million is a fair proportion of the 20 ultimately be approved as being fair. That's 20 damages that the class could have reasonably 21 the first issue the Court has to decide today. 21 been expected to win if the plaintiff had won 22 Second, the Court has to decide 22 a verdict and then affirmed on appeal. So 23 whether the proposed plan for notice to class 23 today we ask the Court to give preliminary 24 comports with due process. Then number three, 24 approval that the amount of $310 million is 25 the Court has to decide if the Plan of 25 fair and reasonable to the class.
Page 18 Page 20 1 Allocation appears to be fair enough to get 1 Issue number two is notice. This 2 preliminary approval. And Plan of Allocation 2 issue relates to both the content of the 3 just means how the money will be divided up 3 notices and the format of how the notices are 4 among the class members. Again, all these 4 going to be disseminated. Last year, the 5 things will come back in detail. Then number 5 Court approved the format of mailing a 6 four, the fourth element is, does the plan for 6 Short-Form Notice on a postcard and the 7 claims administration and the claims filing 7 posting of the Long-Form Notice on the 8 process and the choice of claims 8 website, and also any class member could call 9 administrator, does that seem to be fair 9 a toll-free telephone number and request a 10 enough to warrant preliminary approval. And 10 mailing of the Long-Form Notice. So today, 11 this includes the plan for choosing an escrow 11 we're asking for that same sort of format, 12 agent and how the escrow will work. 12 that a Short-Form Notice will be mailed to the 13 So those are the four main 13 class members. It will give them the 14 categories for consideration. I'm going to 14 toll-free telephone number, the mailing 15 address those in that order: One, two, three, 15 address of Gilardi. It will give them the 16 four. So first is the amount. Does the 16 website address. So if they want to see the 17 relief being offered seem to be fair enough to 17 Long-Form Notice, they can read it on the 18 be worth preliminary approval? All the Court 18 website or write or call to Gilardi and ask 19 has to decide is that $310 million is an 19 for it to be mailed to them. 20 amount that might be subject to full final 20 Now, I'm probably going to say 21 approval. We submit that $310 million is a 21 this two or three times as we go through here. 22 big pile of money, and that easily meets that 22 The documents that have been filed with the 23 low thresholds for preliminary approval. The 23 Court usually refer to this as the postcard 24 plaintiffs had experts in this case who would 24 notice, you know, the Short-Form Notice being 25 have testified that the damages to the class 25 the postcard notice. But I want to be clear
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 21 to 24 Page 21 Page 23 1 about one thing. As the parties have 1 them. So we need the Court today or before it 2 negotiated what that notice will say, the 2 signs the approval order to set a date for the 3 volume of words kept getting added and added 3 final hearing. Then when we have that date, 4 and added. So the final text that we've 4 we can set a deadline date for filing 5 agreed on that is in B-2 and B-3 exhibits, the 5 objections. So I suggest we put off this 6 volume of those words we know are too much to 6 calendar discussion to the very end and then 7 fit on a standard three-by-five postcard. So 7 we can all -- 8 when I say postcard notice, it's probably 8 THE COURT: That's fine. 9 either going to be a larger -- 9 MR. MCKEE: And of course, all 10 THE COURT: It's being treated as 10 this is subject to the Court's availability. 11 a term of art. 11 But the Long-Form Notice tells the class that 12 MR. MCKEE: Right. It's either 12 the deadline for filing claims would be 13 going to be a larger stock postcard or it may 13 September 30, 2016. Again, this is all in the 14 even work out that it's most cost advantageous 14 Court's judgment, but September 30 is the day 15 just to print a single piece of paper and mail 15 that we are recommending. This will provide 16 it in a standard envelope. So I just want to 16 what should be a little over one hundred days. 17 be clear, as a shorthand, when I say postcard 17 If the Court issues an approval order today or 18 notice, it might actually turn out to be 18 this week, then the postcard notices should be 19 something bigger than that. But still, it's 19 received around mid-June. And that provides 20 just a Short-Form Notice. 20 all of July, August, September for the class 21 Now, interestingly, Gilardi and 21 members to file claims. 22 other claims administrators that we talked to 22 Then we need to ask the Court here 23 and got bids from for this job, they tell us 23 a question about the form of objections. Here 24 that there's a higher rate of return of claims 24 is the way it is in our papers. This is what 25 when they just send out a postcard or a 25 we propose for the Court to approve. If the
Page 22 Page 24 1 Short-Form Notice as opposed to when they mail 1 class member just wants to file a written 2 the whole, you know, maybe 10- or 20-page-long 2 objection but not appear in person at the 3 form. Apparently, people are more likely to 3 final hearing, then that written objection is 4 actually read a short form and respond to it. 4 filed with Gilardi, the Claims Administrator. 5 And if they get something that big in the 5 And prior to the final hearing, Gilardi will 6 mail, they just throw it away without ever 6 transmit to counsel, and we will file with the 7 looking at it. So we're not doing this as a 7 Court copies of all those objections. But if 8 way of trying to scrimp or save money. The 8 an objector also wants to appear at the final 9 claims administrator people tell us this is 9 hearing, then the Notice of Intent to Appear 10 actually the best way to get people's 10 has to be served on counsel for plaintiffs and 11 attention, and you have a higher rate of 11 the defendants and be filed with the Circuit 12 return by using this mechanism of the 12 Clerk. So when we go through the draft 13 Short-Form Notice and then just posting the 13 proposed order, I'll point out again where 14 Long-Form Notice on the website. 14 that is. But I just want the Court to be 15 So the Long-Form Notice is Exhibit 15 clear that if the Court approves the proposal 16 B-1. So it summarizes the litigation. It 16 that's in front of it, the Notices of Intent 17 sets out the details of the settlement. It 17 to Appear will be filed with the Circuit 18 explains that the Stipulation and the other 18 Clerk. 19 material documents are on the website. It 19 That's the Long-Form Notice. Now 20 sets out the Plan of Allocation verbatim. It 20 Exhibits B-2 and B-3 are the Short-Form 21 tells class members when the final hearing 21 Notices. These will be mailed to the class 22 will be. It tells them how to file an 22 members. B-2 goes to the 18,000 class 23 objection. It tells them how to file a Notice 23 members, approximately 18,000 who filed 24 of Intent to Appear at the hearing if they 24 approved claims in 1999. It tells them to 25 want to appear or with a lawyer representing 25 file Claims Form A. That's for people who
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 25 to 28 Page 25 Page 27 1 filed in '99. It tells them they can either 1 has three choices. They can write to Gilardi, 2 file it online or they can request a mailing 2 they can call the toll-free number to Gilardi 3 of the Long-Form Notice and the claims forms, 3 or they can go to the website that's listed 4 and they can fill it out on paper and mail it 4 there. And there, they can see all the 5 back in to Gilardi. Gilardi tells us that 5 documents in this case, and they can see the 6 they expect that, in this case, the vast 6 Long-Form Notice and the claims forms and know 7 majority of claims will be filed online. 7 how to file a claim. Because the Long-Form 8 That's been their recent experience. 8 Notice explains that there are two claims 9 B-3 is the notice that will go to 9 forms and that if you filed in '99, you are to 10 the class members who did not file claims in 10 use A. If you didn't file in '99, you're to 11 1999. The text of that notice is 99 percent 11 use B. All that is set out in the Long-Form 12 the same as B-2. There's just one or two 12 Notice that they can receive a copy of. 13 sentences that says, our records show you did 13 THE COURT: Okay. 14 not file a claim in '99, and you are to choose 14 MR. MCKEE: So today, we're asking 15 Claim Form B. Now, there are probably 15 the Court to approve of the forms of notices 16 something over 50,000 addresses that Gilardi 16 that's B-1, B-2, B-3 and this form for the 17 has for those non-filers. Just to give the 17 Wall Street Journal publication and approve 18 Court some idea, there will probably be around 18 the way that the notices will be disseminated, 19 70,000 notices that will be mailed out. 19 the mailed Short-Form Notice, the publication 20 Then publication. Like we did 20 in the Wall Street Journal. The Long-Form 21 last year in 2015, we propose that the 21 Notice will be on the website, or a class 22 Short-Form Notice will be published in the 22 member can call the toll-free number to 23 Wall Street Journal. Now, in this case, there 23 receive a paper mailing. We assert that this 24 are two Short-Form Notices, one for filers and 24 plan exceeds the minimum requirements of due 25 one for non-filers. So those two notices are 25 process. Technically, this is just a
Page 26 Page 28 1 about 99 percent identical. But they differ a 1 preliminary approval. At the final hearing, 2 little bit because they tell the class member 2 the Court, again, will be asked to look at 3 whether to choose Form A or Form B. So for 3 this issue and make a final ruling that this 4 publication, the text of A and B are going to 4 plan of notice did, in fact, comply with the 5 have to be merged to be consistent to make 5 requirements of due process. 6 just a single notice. We sent a copy up to 6 Also, I want to mention that the 7 the Court today. Did the Court receive a 7 cost of notice will come from the settlement 8 copy? May I? 8 fund. It will come out of the $310 million. 9 THE COURT: Yes. 9 The defendants are not paying for the cost of 10 MR. MCKEE: This will show the 10 notice on top of the 310 million. 11 Court what we proposed the publication in the 11 THE COURT: Right. I did 12 Wall Street Journal will look like. Both 12 understand that. Before we go further, 13 defendants have agreed to this text. So 13 anybody from the defense side have anything 14 again, what would be published in the Wall 14 they want to say at this point? 15 Street Journal is exactly what is in the 15 MR. HYMER: No, Your Honor. 16 Short-Form Notice, except those couple of 16 MR. KING: No, sir. 17 sentences that say you are to choose A or you 17 THE COURT: All right. 18 are to choose B. That sentence will just be 18 MR. POWELL: That's a first. 19 deleted, because a person reading it in the 19 THE COURT: Just giving the 20 newspaper, you know, will be addressed to all 20 opportunity. I fully understand and am 21 class members. We don't know whether it's a 21 honoring the disclaimer in that respect. 22 filer or a non-filer who will be reading the 22 MR. HYMER: Thank you, Your Honor. 23 newspaper. So I will give the Court a moment 23 MR. KING: Thank you, Judge. 24 to look at that. 24 THE COURT: I am reading neither 25 So a person reading that newspaper 25 approval, disapproval or concurrence into that
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 29 to 32 Page 29 Page 31 1 issue. I did understand the fact that that 1 who was a class member and deceased or the 2 was to be -- I do have a question that came 2 beneficiaries of trusts that were established 3 up, and it may just help me to kind of put it 3 back in '98, '99. We don't know that. 4 out of my head one way or the other. That was 4 MR. MCKEE: Right. 5 there was some discussion earlier about the 5 THE COURT: I think it's a 6 appointment of a Guardian ad Litem. But so 6 hypothetical. The question in my mind -- and 7 far in my reading, I have not seen any 7 I've been actually already kind of researching 8 reference to that as far as what's now been 8 the question -- is whether or not it is 9 submitted to me. Is that something that's an 9 required that a Guardian ad Litem be appointed 10 issue that's gone away? 10 to represent their interest or rather as 11 MR. MCKEE: Primarily. I do have 11 opposed to conduct -- I think a Pro Ami 12 that in my notes. I was going to mention it 12 Hearing is required, especially to the extent 13 as a post-script, but I'll take it up now. 13 that there would be known minors or 14 The Court may have noticed, depending on how 14 incompetents. And I think the chances of 15 many of these documents you had time to 15 incompetents being present in the class is 16 fine-tooth comb, that there's not a reference 16 actually maybe higher than the presence of 17 to a Guardian ad Litem, as you noted. But 17 minors in the class, given the length of time 18 there is a reference to a Pro Ami Hearing that 18 that has preceded the interval that's gone on 19 will be held in conjunction with the final 19 between the original class action and this 20 hearing. 20 case or the conclusion of this case. But in 21 THE COURT: Right. 21 either instance, to my mind, there's a 22 MR. MCKEE: So the parties are not 22 difference between the requirement for a Pro 23 requesting the appointment of a generic 23 Ami Hearing and the requirement for the 24 Guardian ad Litem to represent hypothetical 24 appointment of a Guardian ad Litem. 25 minors that might be members of the class. 25 If anybody has any thoughts or has
Page 30 Page 32 1 The plaintiffs do request that the Court 1 done any research on that and would care to 2 combine a Pro Ami Hearing with the regular 2 share that with the Court, I'd be happy to see 3 final hearing. So if the Court at that time 3 it. Like I said, I have been kind of 4 finds that the $310 million settlement is fair 4 addressing that issue and researching that 5 to the class as a whole, then the plaintiffs 5 question myself. My current leaning is that 6 will ask the Court to then consider the 6 the appointment of a Guardian ad Litem is not 7 fairness in relation to any hypothetical class 7 required. But I'll be happy to consider any 8 members that might be minors or mentally 8 thoughts that anybody has got on that point. 9 incompetent. 9 MR. MCKEE: That is the 10 The defendants desire, you know, 10 plaintiffs' motion. Of course, the 11 the maximum scope of res judicata protection, 11 defendants, if they wish to speak, can speak 12 and class counsel understand their concern and 12 for themselves. I won't endeavor to speak for 13 we're not opposed to that. At the final 13 the defendants. 14 hearing, class counsel will make a 14 THE COURT: I do think the Pro Ami 15 presentation about the fairness of the 15 Hearing and judgment will be beneficial to the 16 settlement to all and then, secondarily, the 16 defendants in the sense that it would 17 fairness to any minors or incompetents that 17 foreclose any possibility of a member of the 18 might be included in the class. Now, class 18 class that is either a minor or an incompetent 19 counsel believes that's purely a hypothetical. 19 from somehow wiggling out from under the 20 We don't believe that, by definition, there 20 intended finality of the class settlement. So 21 can be members of the class who are minors, 21 I certainly have read in some detail the 22 but we understand the desire to try -- 22 discussion in the settlement stipulation with 23 THE COURT: Well, it has occurred 23 respect to that and particularly would think 24 to me that there could be minors who are the 24 with respect to things like waiving any 25 beneficiaries of trusts of somebody who has -- 25 possibility of reviving a claim under the
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 33 to 36 Page 33 Page 35 1 California Code and those kinds of things. I 1 the Court to give preliminary approval to this 2 think it's certainly in the best interest of 2 Plan of Allocation. And the defendants don't 3 everybody if we do everything we can to put 3 have a dog in this fight, and they have 4 this to bed properly. We can give further 4 expressed that they have no role and no issues 5 thought on that. 5 about how the $310 million will be allocated. 6 With that, go ahead and continue. 6 THE COURT: If we boil all that 7 MR. MCKEE: But that is the 7 down quickly, the defendants don't care how 8 current proposal that is in front of the 8 they spend that money as long as nobody can 9 Court, that there be a Pro Ami Hearing, but 9 come back on them and make additional claims. 10 not the appointment of a generic Guardian ad 10 Is that a fair characterization? 11 Litem. 11 MR. HYMER: Yes, Your Honor. 12 Issue number three is the Plan of 12 MR. KING: Yes, sir. Subject to 13 Allocation. This formula is set out in full 13 the Court's approval, our interest is in 14 in B-1, which is the Long-Form Notice. It's 14 finality of the judgment and nobody is going 15 Section 7 of B-1. That's pages five through 15 to look to us for any more money. 16 eight. This wording is verbatim from the 1999 16 THE COURT: Yes, sir. 17 plan. In 1999, all the elements of the class 17 MR. MCKEE: So issue number four 18 and all the parties agreed that this plan was 18 is the claims administration. This is the 19 fair. No class member objected. Judge Wynn 19 last of the four categories for a decision 20 approved it and adopted it. In our view, even 20 today. And within claims administration, we 21 if we wanted to change the plan, which we do 21 also include the plan for escrow. So let's 22 not, we believe that it's res judicata. 22 first look at the Escrow Agreement. That is 23 The Alabama Supreme Court opinion 23 Exhibit F to the Stipulation. So we seek the 24 held that the 1999 judgment conclusively 24 Court's approval to engage Computershare 25 resolved all of the conflicts between the 25 Trust Company, NA as the escrow agent pursuant
Page 34 Page 36 1 sub-classes and that this fraud in the 1 to this Escrow Agreement. Until the effective 2 settlement class was just one class, one 2 date, the escrow agent will hold the $310 3 unified class wherein everybody was equally 3 million in interest-bearing accounts that are 4 defrauded. The Supreme Court also quoted 4 either United States Government money market 5 Judge King's certification order where this 5 funds or FDIC-insured interest-bearing 6 Court, through Judge King, held that the 1999 6 accounts. Any interest earned goes to the 7 settlement had resolved and finally 7 settlement fund. An insurance policy to 8 adjudicated the conflicting claims of the 8 indemnify the escrow agent for any liabilities 9 three sub-classes. 9 will be procured, and the cost of that will be 10 So the vast majority of this class 10 a cost of administration to come from the 11 are members who bought common stock between 11 settlement fund. 12 the dates of October 1996 and January 1998. 12 In the Escrow Agreement, paragraph 13 There's a mathematical formula for calculating 13 4-B sets aside a sum of $125,000 to be used 14 their losses depending on the date they made 14 for notice and administration costs. For 15 the purchase and whether they sold the stock 15 example, this would include the cost of 16 or were still holding the stock in January of 16 postage for mailing those 70,000 notices. The 17 1998. Then the other two sub-classes are 17 escrow agent will disburse monies out of this 18 those who purchased options and those who 18 $125,000 when it is directed to jointly by 19 purchased TAPS, Threshold Appreciation Price 19 plaintiff counsel, defense counsel and with 20 Securities. So there's a formula as to how 20 the approval of the Court. 21 the overall settlement is divided among those 21 And if for some reason this entire 22 three sub-classes, and there's a formula as to 22 settlement falls apart or the Alabama Supreme 23 how the common stockholders' losses are 23 Court gets an appeal and reverses it, this 24 calculated. 24 $125,000 will not be recoverable by the 25 So today, the plaintiff class asks 25 defendant. But otherwise, the settlement fund
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 37 to 40 Page 37 Page 39 1 will be refunded back to the defendant if for 1 again. So for the Court's information, the 2 some reason the settlement is never finally 2 total dollar amount approved of those 18,000 3 approved. 3 claims was around $700 million. So if the 4 Now, claims administration. That 4 class member has died or is now legally 5 was escrow, now claims administration. By 5 incompetent, Form A has a place for the 6 this motion, the plaintiffs ask the Court's 6 claimant to relate that information and to 7 permission to approve their selection of 7 state their representative capacity as 8 Gilardi and Company, LLC to be the notice and 8 personal representative of the estate or 9 claims administrator. As to notice, Gilardi 9 guardian or conservator or such. 10 will print and mail these postcards, or as I 10 Now, the other form is Exhibit 11 said, it may actually turn out to be a letter, 11 C-2. That's Form B. That will be used by 12 but the Short-Form Notice. For ones that are 12 those class members who did not file a claim 13 returned, Gilardi will endeavor to locate a 13 in 1999. It asks for the same kind of trading 14 valid current address and re-mail them. 14 information that was in the claims forms used 15 Gilardi will arrange for the Wall Street 15 back in 1999. But the instructions to this 16 Journal publication. Gilardi will maintain a 16 form state that it is understood that most 17 website and a toll-free telephone number. All 17 people probably do not currently possess their 18 the material documents in this case will be 18 detailed stock trading information going back 19 posted on the website, including the 19 to 1997. But the instructions tell them to 20 Stipulation and the Long-Form Notice. Class 20 fill out as much information as they can, to 21 members can go to the website and file claims 21 fill out as many blanks as they can, and if 22 online. Gilardi will receive any written 22 they need to supplement with an affidavit or a 23 objections that are filed and transmit those 23 sworn declaration. The instructions explain 24 to counsel, who then will file them with the 24 that the mere filing of Form B does not 25 Court before the final hearing. 25 guarantee that the claim will be approved and
Page 38 Page 40 1 As the Claims Administrator, just 1 paid. 2 as Gilardi did in 1999, Gilardi will receive 2 So Gilardi, as Claims 3 and process the claims forms pursuant to the 3 Administrator, may have to seek some Court 4 Plan of Allocation. Before any checks are 4 rulings as to the validity of some of these 5 mailed out at the end of the day, Gilardi will 5 Form B's, if any of these are filed. Frankly, 6 prepare a final report for counsel and for the 6 no one knows for sure what will happen in the 7 Court and seek Court approval of its final 7 future. But class counsel anticipate there 8 list of approved claims and the amounts that 8 will be very few Form B's that will be filed. 9 they've calculated due to each class member. 9 If there are and they present difficulty in 10 So we're asking the Court to 10 adjudicating their validity, then we can 11 approve of the two claims forms, which are 11 convene a court hearing at that time for 12 Exhibit C-1 and C-2 to the Stipulation. Both 12 Gilardi to seek instructions from the Court as 13 of these forms contain the full release, you 13 to how to handle those forms. Now, class 14 know, to the defendants. We've been talking 14 counsel proposed there be a cut-off date for 15 about, you know, the defendants want finality. 15 filing claims as September 30, 2016. So 16 So if you file Form A or Form B claim, the 16 online claims have to be completed by that 17 claimant, the class member, will have to sign 17 date. And if paper claims forms are mailed 18 a release. 18 in, they have to be postmarked by September 19 C-1 is Form A. That's to be used 19 30th. 20 by the approximately 18,000 class members that 20 Now, Exhibit 3 to the plaintiffs' 21 filed approved claims in 1999. It's very 21 motion that was filed on Saturday, the last 22 simple. It's basically just your name and 22 exhibit, about the last seven pages of that 23 address. Because these people have already 23 151 pages, that is a cost estimate from 24 proved the facts of their stock purchases back 24 Gilardi. The estimated cost for their notice 25 in 1999, they don't have to reinvent the wheel 25 and claims administration is a little over
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 41 to 44 Page 41 Page 43 1 $100,000. But be aware that because the text 1 members, you know, roughly a little more than 2 of the Short-Form Notice is now going to be 2 30 days to decide whether to object. So if 3 too big to fit on a small postcard, there will 3 the notices are served and received roughly 4 be an additional charge for printing and 4 around mid-June and the deadline for objection 5 mailing a larger postcard or envelope. That's 5 were July 15, class members would have roughly 6 not a terribly significant amount, but that 6 around 30 days to decide whether to object. 7 estimate will go up because postage will go 7 We believe that complies fully with due 8 up. 8 process. 9 If you look at the detailed line 9 So when the Court is ready, the 10 items of that Gilardi estimate, part of the 10 last thing I have on my list of things to do 11 negotiations finally got us a $40,000 discount 11 is to go through line by line the proposed 12 by combining the escrow and claims 12 Court order that we're asking and to again 13 administration into the same family of 13 detail the relief, specific relief we're 14 companies. So otherwise, the estimated cost 14 asking the Court for. 15 would have been closer to $150,000. So the 15 THE COURT: All right. Let's go 16 class is getting the benefit there of $40,000. 16 ahead and do that. 17 Now, those are the four elements 17 MR. MCKEE: Would it be helpful 18 or issues that any Court has to look at and 18 for the Court to have a paper copy? 19 decide every time you have a hearing for 19 THE COURT: I'll follow along just 20 preliminary approval of a class action 20 fine on the PDF. 21 settlement. But the fifth thing we need from 21 MR. MCKEE: The proposed order is 22 the Court is the setting of a date for the 22 Exhibit A to the Stipulation. So there's a 23 final hearing and deadline dates for 23 blank on the front page that actually would be 24 objections. Our research indicates that many 24 May 27th. The blank to be filed in would be 25 final hearings are held around 40 days after 25 May 27th as the date that the parties entered
Page 42 Page 44 1 the preliminary approval order. But we've 1 into the Stipulation of Settlement. Then on 2 mentioned to the Court earlier the notion of 2 page two, the first paragraph where it says 3 60 days. We continue to believe that 3 "The Court hereby preliminarily approves the 4 something around 60 days is completely fair to 4 stipulation and the settlement," that 5 class members and all concerned. So if the 5 necessarily would be giving preliminary 6 Court is of a mind to give preliminary 6 approval to the amount of $310 million. It 7 approval today or later this week, then 7 would be giving preliminary approval to the 8 Monday, August 1st, would be about 60 days 8 Plan of Allocation, because that's set out in 9 from today. Monday, August 1st. So for 9 Exhibit B-1, which is Long-Form Notice, 10 example, if Monday, August 1st, or something 10 Exhibit B-1 to the Stipulation. 11 close to that, were the date for the final 11 Now, paragraph two is the date of 12 hearing, then approximately two weeks back 12 the fairness hearing. Again, our proposal, 13 from that would be Friday, July 15. So we 13 obviously subject to the Court's calendar, our 14 suggest that July 15 be the deadline for 14 proposal would be Monday, August 1st, 1:30 15 filing objections. Written objections have to 15 p.m. 16 be mailed to Gilardi, and they would have to 16 THE COURT: With an objection 17 be postmarked by July 15. Then Gilardi would 17 deadline of July -- 18 have until July 25th, a week before the 18 MR. MCKEE: That comes later in 19 hearing, to compile those objections and get 19 this order, but July 15. 20 them filed with the Court. 20 THE COURT: All right. 21 And if the class member files a 21 MR. MCKEE: Then paragraph three 22 Notice of Intent to Appear at the hearing, 22 is on page three. There, the Court says that 23 then that has to be filed with the Court Clerk 23 it will hold a Pro Ami Hearing in conjunction 24 and served on counsel by July 15. So the day 24 with the fairness hearing, which we've just 25 of July 15 as a deadline would give class 25 discussed. Paragraph number four, this would
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 45 to 48 Page 45 Page 47 1 approve the content and the distribution of 1 already exists. And it already has a lot of 2 the notices. And it refers to there being 2 the documents in the case, you know, up to -- 3 Exhibits A-1, 2 and 3 to the order. Those 3 this was established last year when notice was 4 would be the Long-Form Notice and the two 4 sent to the class that the Alabama Supreme 5 Short-Form Notices that are actually, you 5 Court had affirmed certification. So it's 6 know, Exhibit B to the Stipulation. 6 current up until that time. So they just have 7 Obviously, the Court can change those around. 7 to add the new documents that are occurring 8 But I'm just pointing out that the format that 8 now and to set up the process to be able to 9 we have has the order attaching to it the 9 file a claim through the website. 10 three forms of notice that the Court is 10 Continuing on page four of this 11 approving. 11 proposed order, in paragraph seven, this 12 Paragraph number five, the Court 12 effectively approves the form of the two 13 would approve the appointment of Gilardi to 13 claims forms that are C-1 and C-2 to the 14 serve as Claims Administrator. And then here 14 Stipulation, Claim Form A and Claim Form B. 15 are a couple of the dates. In 5-A is a 15 On page five, there's a blank in paragraph 7-C 16 deadline date for publication. I'm suggesting 16 that sets the deadline for filing claims. As 17 and asking the Court to fill in that blank 17 I have mentioned several times here, the date 18 with Friday, June 17. Now, the actual date of 18 that we propose is September 30, 2016. So 19 publication should be before then. But in 19 that would be the blank to be filed in in 20 case there's some unforeseen problem, I'd like 20 paragraph 7-C, September 30. 21 to build in a few days of leeway. So Gilardi 21 THE COURT: Okay. 22 would have until Friday, June 17 to make the 22 MR. MCKEE: Then paragraph eight 23 publication in the Wall Street Journal. And 23 starts to explain how to file objections. So 24 Gilardi intends to try to coordinate that with 24 on page six, there's a blank that written 25 the mailing of all the other notices, so it 25 objections must be delivered no later than
Page 46 Page 48 1 should happen before. If the Court were to 1 July blank. The day we're suggesting is July 2 approve this today or this week, it should 2 15. 3 happen before June 17. But I'd like to give 3 THE COURT: Okay. 4 them a little leeway. 4 MR. MCKEE: Then further in that 5 Then similarly, in paragraph 5-B, 5 same paragraph in the middle of page six is 6 this is a deadline for the Claims 6 one other blank. It directs the Claims 7 Administrator or to mail out the Short-Form 7 Administrator, who would be Gilardi, to file 8 Notices. And we would ask 14 days from the 8 the objections it's received. We would say 9 date of approval. It probably will be done 9 seven days, no later than seven days before 10 closer to ten days. But again, if there's 10 the fairness hearing. So that gives Gilardi 11 unforeseen printing errors or something like 11 approximately a week for the mail to come in. 12 that, I'd like to build in two or three days 12 If something is postmarked on July 15, it 13 of cushion. So that day in 5-B would be 13 might be three or four days before the mail is 14 whatever would be 14 days from the date the 14 delivered to Gilardi. And then it gives them 15 Judge signs the preliminary approval order. 15 a few days to compile all the objections and 16 The same thing in paragraph 5-C. 16 get it to us no later than seven days before 17 This is when the website will be updated and 17 the fairness hearing. 18 ready to go. That same day, 14 days again, 18 Then on page seven, this paragraph 19 probably that can be done in ten days. But 19 eight continues. It tells class members that 20 I'd like to build in a little cushion. So 20 in addition to making a written objection, if 21 Gilardi would have 14 days from the date this 21 they want to file a Notice of Intent to Appear 22 Judge signs a preliminary approval order to 22 in person at the hearing, then they have to 23 have the website up and running. 23 file that, again, the date would be July 15. 24 I want to make sure that the Court 24 So there are two blanks there. They've got to 25 knows there is an existing website. It 25 file their objection by July 15 and postmark
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 49 to 52 Page 49 Page 51 1 service on counsel no later than July 15. 1 several responsibility. In other words, AIG 2 And here is where I want to ask 2 is putting the amount stated, I think, $230 3 the Court if it approves of the plan, that 3 million in, and Caremark is putting their $80 4 Notices of Intent to Appear be filed with the 4 million in separately, to do so by within 30 5 Court and be filed through this address, 5 days from the date that the preliminary 6 through the Court Clerk. 6 approval is done. Is that correct? 7 THE COURT: That would make sense. 7 MR. MCKEE: Thirty days after the 8 MR. MCKEE: That's the only way 8 final approval. So for example, if we have a 9 that we saw it made sense. Then on page 9 hearing on August 1st -- 10 eight, paragraph ten, this appoints 10 THE COURT: Excuse me. They are 11 Computershare Trust Company to be the escrow 11 to wire their money to the escrow agent within 12 agent. That's paragraph ten. Then there are 12 30 days after final settlement approval. 13 just two more dates to fill in. That's in 13 MR. MCKEE: Yes. 14 paragraph 11. This sets a deadline date for 14 THE COURT: And that's a several, 15 the plaintiff class counsel to file a petition 15 not a joint and several, responsibility on 16 for fee and expenses, and also for the class 16 their part. Although, the effective date is 17 to file their final brief and papers in 17 when both of them have done so. Is that 18 support of the settlement. If the hearing 18 correct? In other words, when the full amount 19 date is August 1st, then ten days before that 19 is in is when the next stage kicks in. Am I 20 would be July 22nd. So we're suggesting the 20 stating that correctly? 21 date July 22nd, which would give the Court ten 21 MR. POWELL: I think what you mean 22 calendar days prior to a hearing on August 22 is the settlement is conditioned on them both 23 1st. That's not to say that we might not file 23 fulfilling their several responsibility. 24 it early, but that would be the outside 24 THE COURT: Correct. Neither 25 deadline. 25 would be responsible for the failure of the
Page 50 Page 52 1 THE COURT: All right. 1 other to do so, to make their payment. But 2 MR. MCKEE: Then the only other 2 the settlement doesn't finally kick into 3 thing to call to the Court's attention on page 3 operation if one or the other doesn't wire the 4 nine, paragraph 14, I mentioned this before. 4 funds. 5 But again, I just want to make sure for the 5 MR. POWELL: That's correct. 6 record that we're all clear. What the 6 THE COURT: That's articulated a 7 Stipulation defines as notice and 7 little better. And then I understand that 8 administration costs will be paid out of the 8 they don't -- that neither defendant would be 9 settlement fund, and the defendants are not 9 responsible for making any payments as to 10 paying any part of that amount on top of the 10 expenses connected with the settlement besides 11 $310 million. So for example, the postage to 11 the $230 million and the $80 million figures. 12 send out the 70,000 notices, that will come 12 And it's my understanding that, with the 13 out of the $310 million. So all costs of 13 exception of that, that should the settlement 14 notice and administration costs will come out 14 fall apart for some reason after that point in 15 of the settlement fund and is not an 15 time, they would be refunded with the 16 additional obligation of the defendants. 16 exception of the 125,000 that is allowed to be 17 THE COURT: Okay. Let me dig into 17 pulled out for expenses of notice and that 18 paragraph 14 just a little further on one 18 sort of thing, the preliminary administration 19 point. I understand the part about if the 19 of the settlement. Am I following that 20 Court does not approve of the settlement. I 20 correctly? 21 want to restate things a little bit. The 21 MR. MCKEE: That is correct. 22 only -- assuming, first of all, that both 22 THE COURT: I was looking at the 23 defendants fulfill their obligation, and I 23 language about "or it otherwise fails to 24 understand the part about it's a joint -- it 24 become effective. Neither plaintiffs nor 25 is a several responsibility, not a joint and 25 class counsel shall have any obligation to
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 53 to 56 Page 53 Page 55 1 repay any amounts incurred or disbursed for 1 plan for notice and the plan for allocation, 2 notice administration cost." That's what we 2 particularly in light of the res judicata 3 were talking about just then as far as the -- 3 effect that's already been announced, both by 4 MR. HYMER: The 125,000. 4 this Court through my predecessor and by the 5 THE COURT: Okay. I think I'm 5 Alabama Supreme Court, kind of leaves me 6 following that properly. All right. 6 saying I would have to have some awfully 7 MR. MCKEE: That completes my 7 compelling reasons to buck that trend at this 8 presentation except for housekeeping. Would 8 point in time. I don't have a problem with 9 it help the Court in any way if we took this 9 that. I don't have a problem with the claims 10 proposed draft order, which is Exhibit A, and 10 administration process, so I'm definitely 11 e-mailed it to court chambers in Word or Word 11 prepared to sign off on the proposed order, 12 Perfect? 12 the preliminary approval order. 13 THE COURT: Yes. 13 In looking at my calendar, I will 14 MR. MCKEE: Which do you prefer? 14 say that I think August the 8th, which is the 15 THE COURT: Word. 15 following Monday, at 1:30 will work better for 16 MR. MCKEE: As soon as I get back 16 me. I think that that helps from a standpoint 17 to the office, I'll do that. 17 of giving just a little more padding in terms 18 THE COURT: In my scheduling 18 of this. I think that what I would say is 19 order, you'll get it. But if you want to stop 19 that the proposed deadline for mailing and 20 in and talk to Ruby before you roll out the 20 publication will be June 17. I can get this 21 door, she can give you her address and Pam's 21 order signed tomorrow. If y'all will get this 22 address. I would say e-mail it to both of 22 e-mailed over to us promptly, I can have the 23 those addresses, and then they'll forward it 23 order signed tomorrow. But deadline for 24 to me. That's just been my practice, that I 24 mailing and publication of notice will be 25 have any type of communication like that 25 Friday, June 17.
Page 54 Page 56 1 between counsel and my office, get them to my 1 I'm fine with the September 30th 2 assistants. 2 deadline for claims. I'm fine with, in 3 I will say this, as to the amount 3 paragraph eight, Gilardi having seven days 4 of the settlement, I don't have a problem with 4 before the fairness hearing within which to 5 it. I know firsthand how fiercely this has 5 have their compilation of any objections made. 6 been fought. And because of all of the 6 What I would propose is that, instead of July 7 multiple day-long hearings that we had on 7 15th for the objection deadline, is to make 8 evidentiary issues, I have a pretty good grasp 8 the objection deadline and the deadline for 9 on what I think were the chances of success 9 Notice of Intent to Appear be July 22nd. That 10 and failure for both sides. And I think I 10 just gives anybody, any potential objecting 11 mentioned to counsel that came by my office 11 claimants, an additional seven days within 12 and announced the settlement to me that I felt 12 which to have received the notices, made their 13 even then, and as I have thought about it in 13 decision and filed their objections. It just 14 the intervening weeks, I think that this is a 14 gives a little longer window there. I think 15 good settlement number. I don't have a 15 that's a good thing to happen. Then I'm fine 16 problem with it at all. I think it accurately 16 with the ten days before final hearing for the 17 reflects the odds of success and failure from 17 Plan of Allocation. 18 both sides' perspectives. None of us have a 18 So I think that covers everything. 19 perfectly accurate crystal ball. We all, as 19 Is there anything that I have not addressed? 20 the Bible says, see through a glass, darkly. 20 MR. POWELL: Are you okay with 21 This is about as good of a view through the 21 keeping the July 22nd, application for fee and 22 dark glass as I've seen on something as 22 expenses? 23 difficult as this would be. 23 THE COURT: Yes. Actually, I 24 So I don't have -- I can approve 24 think what I was saying was -- that's 25 the amount of the settlement. I think the 25 paragraph 11; right?
BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3319 5/31/2016 Pages 57 to 59 Page 57 Page 59 1 MR. POWELL: Well, we did July 1 C E R T I F I C A T E 2 22nd on the proposed August 1 hearing, which 2 3 was ten days before. Can we move to the 29th? 3 4 THE COURT: Yes. Y'all had it set 4 STATE OF ALABAMA) 5 as being ten days. What I'm saying is we can 5 JEFFERSON COUNTY) 6 keep it at ten days before the hearing, which 6 I hereby certify that the above 7 would put it, I guess, July 29th. 7 proceedings were taken down by me and 8 MR. MCKEE: Your Honor, I believe 8 transcribed by me using computer-aided 9 that's it. As quickly as I can, I will 9 transcription and that the above is a true and 10 deliver a Word version of this document to the 10 correct transcript of said proceedings taken 11 Court. I've got my notes on the appropriate 11 down by me and transcribed by me. 12 dates to fill in. If you want to pre-fill 12 I further certify that I am neither of 13 those in since I discussed them, you go right 13 kin nor of counsel to any of the parties nor 14 ahead. If there's anything else -- 14 in anywise financially interested in the 15 MR. HYMER: Your Honor, if you're 15 outcome of this case. 16 done with that, I just want to -- I appreciate 16 I further certify that I am duly licensed 17 your acknowledging our disclaimer, which is in 17 by the Alabama Board of Court Reporting as a 18 3.4 of the Stipulation. 18 Certified Court Reporter as evidenced by the 19 THE COURT: Yes, sir. 19 ACCR number following my name found below. 20 MR. HYMER: I just want to state 20 21 for the record that that disclaimer extends to 21 Stephanie Burton, ACCR #407 22 this hearing as well as any other hearings we 22 My commission expires 23 might have in this case. 23 9/17/2018 24 THE COURT: Yes, sir. I'm not 24 25 reading -- your silence is not taken as 25
Page 58 1 agreeing or disagreeing with anything that 2 they've said. I am not imposing upon you any 3 duty to have said anything here today. 4 MR. HYMER: Thank you, Your Honor. 5 MR. KING: Your Honor, two things. 6 For the record, I adopt Mr. Hymer's comments, 7 and I also thank the Court. I'd like to make 8 an off-the-record introduction to the Court, 9 if we are concluded. 10 (Discussion held off the record.) 11 (Concluded at 3:50 p.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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BIRMINGHAM REPORTING SERVICE (205) 326-4444 DOCUMENT 3320 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 10 DOCUMENT 3320
t·-) IN THE ClRCUIT COURT FOR JEFFERsON COUNTY, ALABAMA
JOHN LAURIELLO, et al.,
PlaintifiS, Case No. CV-03-6630
.v.
CAREMARK RX. ~-. et al.,
Defendants. .
FRANK G. McAR'IHUR and VIRGJNIA GREENE,
Intervenor Plaintiffs,
v.
CAREMARK RX. INC., et al.,
( Defendants.
Lead CoUDIIe) Agre«meut
This Lead Counsel Agreement ("Agreement") by and among some of the parties ·
and. their uodersigned' COUDSel- in the class ~D complaint styled La~ello, et al. _ v. .
Caremark Rx. Inc., American International Group, Inc., et al, in the Circuit Court of
Jl;fferson County, Alabama, Civil Action No. CV-03-6630, as amended, including
without limitation, any and all claims and complaints brought by the plaintiffs in
intervention in the Complaint in Intervention styled McArthur v. Caremark Rx. Inc. (both
the Lauriello Class Action Complaint, as amended, and the McArthur Complaint in
Intervention are collectively referred to hereinafter as "Lauriello''), is made and entered ( ) - as of this Mday or ~2009. ( EXHIBIT I DOCUMENT 3320
. ·.·EXH-IBIT A
"' ()- . (~'
. - . -.. ( - )
.. DOCUMENT 3320
•. i ~ RECITALS:
A WHEREAS, Counsel' for the ''LaurieUo j)laintiffs" (John Lauriello, James
0. Fmney, Jr., Sam Johnson, and the City of Birmingham Retirement and Relief System),
J;lliDldy Hare Wynn, Newell&. Newton, LLP, Oalloway &. Somerville, LLC, and James
L. North & Associates (such counsel hereinafter referred to coUecdvely as "Lauriello
· \A>Ulisel") initially filed this class action lawsuit on October 22, 2003, against Cafemark,
RX,Inc.{now known as CVS Caremark), American International Group, Inc. and related
AIG companies;
B. WHEREAS, on Eebruacy 8, 2005, Counsel . for the "McArthur
· Ittterveoors" (F~ 0. McArthur ftDd Vuginia Gm:ne),1 namc(y Lanny S. Vmes and
Lanny Vmes &. Associates, LLC referied hereinafter as "McArthur Counself filed a I ( complaint in intervention against CIII'eii!Bik Rx, Inc., American· hrtemation8J. Group, Inc., '- and other defelid!ints;
C. WIIERE,AS, substantive prosec1ition of class action claims against the
defendants was stayed from Mareh 30, 2005 to June I, 2007 pending an appeal;
D. WHEREAS, upon · ~ variOllS defendants in the McArthur
Complaint in Intervention filed motions to dismiss th8t m= heard and granted by order
entered November 16, 2007;
E. WHEREAS, substantive prosecution of class action claims against the
defendants was further stayed from March 4, 2008 until December i9, 2008, pending an
. appeal of the dismissal. of various defendants in the McArthur Complaint in Intervention;
1 Bill Greene was originaHy one of the "McArthur Intervenors," but has since witbdnwn. 2 "McAtth'ut Counsel" also includes all past and any future co-counsel of Lanny S. Vines and/or Lanny Vines & Associates, LLC, involved in this case. . · ·
2 DOCUMENT 3320
·,
F; WHEREAS, in JeCent months, American Jnterrudiooal Group, Inc. and itS
re1s:ted companies have experienced finaneial difficulties; ...... 0. WHEREAS, LaurieUo Counsel and McArthur Co\msel !Jgrce tlU!i it is in
the best interests of the class members that the parties plaintiffs aod thea C9\1llSel enter
into this Lead CollDSel Agreement for the efficient and ~ve ~on of the class ;- . IICtion claimJ a,pinst the defendants and to prevent further delay in the substantive
~of the claims against the defeDdants;
H. wmi:REAS, the purpose ~f this Agreement is to provide tor a leadetship
structure among coUIISel for prosecution ·of class action claims~ defendants;
NOW ~RE, the Lauriello plaintiffs and theM~ plaintiffs. .\v and .
thorough their undelsigned counsel, agree u foHows: . . 1. For ptllJlOlk=ll of this Agreement, class action claims in·Laur.lello shall be
prosecuted by Liuuiello Coonsel Lanny S. Vmes and Lanny Vmes & Associates, LLC,
sba1l 1epn::scot the McArlbur Jnterveiwts and not the Lauriello Plajntift's or the Lauriello . . . Class. This Agreement does not create a "co-collliSel" lll'l'ID:Igelll between Lauriello
CouDse1 and McArthur Counsel; ~ Laiu:iello Counsel will ~ · and
~y represent the Lauriello. PlaintiffS and the LaurieDo. Class, and Lanny S. '
Vmes and~ Vmes & AssoCiates, LLC, will separately and independently ~
the' McArdmr Intervenors. . 2. Lanriello Counsel sball have the following responsibilities on behilf of
(i) To enter into agreements on behalf of all plaintiffs;
/
3 ------·--···· DOCUMENT 3320
( (u) To determine work assigi:unents hi such a IllllllllCii: as such counsel deem
orderly and efficien~
{rii) To' establish litigation funds and make assessments as necessary of
expenses as appropriate;
(iv) To finali-re all briefs and motions on behalf of plaintiffs or to designate
other plaintiffs' counsel who are responsible for doing so;
(v) To apiJear and argue all motions and other matters to be decided by the
O:lurt, which respOnsibility the Lauriello Counsel may designate and
assign to other plaintiffs. oounsel;
(vi) To maintain lin original document repository;
(vii) To act as representative(s) Of plaiirtiffi• ciiimsel and all plaintiffs· with
respect to all subFtantive milttet;, involved in this litigatioD;
(viii} to communieate with defendants' oounsel. on questions of discovery,
motions, settlement and other matters. Defendants' ·counsel may rely upon
all ~ents made with any of Lauriello Counsel and such agreements
shan be binding on all plliintiffs;
(ix) · To file motions, briefs and other papers with the Court on behalf of all
plaintiffs. Defendants shall not be required to respond to any motions,
briefs or papers filed by plaintiffs' counsel other than Lauriello's Counsel
without an order from the Court.
3. Notwithstanding the foregoing, Lanny S. Vines and Lanny Vines and
Associates· -LLC shall remain involved in the case as counsel for the McArthur
Intervenors ~ in that capacity, will assist and advise Lauriello Counscl ill the
4 DOCUMENT 3320
proSecution of class claims against the defendants.. Lanny S. Vines and Lanny Vmes &
Associates, LLC, in their capacity as counsel for the McArthur IDtervcnors, shall (1) be \ kept iafunned by LauriellC) Coun_sel lind .involved in lillY: settlement activities and . . proceedings, as :well ~ &lass certification discovery ilild rellltcd activities; aod (2) have
the rigbi.to approve any settlement dlllt Lauriello Counsel might ptopose with any or an
~dants. However, said approval of any settlement with any or an defendants shall
not affect or interfere with 8lly duties or obligati01JS.ofLauriello. Counsel and shall not be
unreasonably withheld, the parties to this Agreement recognizing thid the ultimate
' decision on 1he fairness of 811)' propOsed _class action settlement lies with the Court.
4. Lanny S. Vmes and .Lanny Vines & Associates, LLC, and the McArthur
Intervenors agree to immediately dismiss and withdraW the "Ameuded and :Restated
Class Action. Complaint. mImCrvtmtion" filed OR DeC:euibec 1, 2008.
5. LaurieUo Counsel will immooiately dismiss and withdraw ''The Lauriello
Plaintiffs' ~on to Disqualify the Law Firms of Haskell Slaughter and L;anuy Vines &
Associates," filed on JIIIIUIIly 3~. 2009, and McArthur Counsel will immediately dismiSs .
. 8lld withdraw "lntervenors' Motion to Disqualify the Law'Fmns of Hare. Wymi, Newell
& :Newton. James L. North & Associates and Oalloway & So~ L.L.C. and 'Ihe.if
Proposed Class Rq:ucscili:ative, John Lauriello" filed on February 4, 2009.
6. With respect to any fee 8Ward in connection with any class action claims
· asserted in this litigation, the parties and tbCir respective counsel agree that they will pose
no objection to Laurlello Counsel petitioning the Court f~ an award of as much as !)2.5%
of the total class lllltion settlement fee award or to McArthur ~ petitioning the . 0 . Court foi: an aWIIId of as muCh as 7.5% of the tola,l class amon settlement fee a~
.5 DOCUMENT 3320
\ / Lauriello Counsel.ligree that the contribution of McArthur Counsel is equal to or greater
than the 7.5% referenced herein, .and that the value will be enhanced by the presence and
participlilion of McArthur Counsel; and· McAithur Counsel agree that the contribution of
Lauriello Counsel is equal to or greater than the 92.5% referen~ ·herein. LaurieUo
Counsel and McArthur Counsel agree to expressly advance and support these positions to
the Court in support of the settlement fee awards: for respeCtive ~el in this case. This
fee distribution and the basis for it sball be included in any preliminary and final approval
agreement submitted to the Court and in any class notice proposed as a result of any
preliminary or final approval by the Court. Consistent herewith, Lauriello Counsei agree- ·
that they will not petition the Court, or otherwise seek, fees in excess of 92.5 % of the
total fee awarded, and McArthur CollllSel agree that they will not petition the Court. or
. otherwise seek, fees in excess of 7.5 % of the total fee awarded.
7. In the even~ that the Lauriello action and/or any action corisolidated
. therewith, is not certified. f()f dass treatment by !igreement, court order, or otherwise, then
this Agreement ·shaH be null and void, and in such event (ntkcertmcation of class)
counsel fur the Lauriellp Plaintiffs as well as coonsel for the Intervenor Plaintiffs .shall be -. entitled to sepanitely represent their plaintiflil and other individuals with whom they have
contracts who have claims ~ch would have otherwise been included in the ~lass if it
had been certified.
8. The parties agree that the next procedural step is for Lauriello Counsel to
file a copy of this Agreement with the Court and to seek a sche4uling conference, and, at
that confi:rence, to propose that Lauriello Counsel have the lead role in ·conducting class
certification discovery. It is agreed that Lauriello Coumel and McArthur Counsel will J.
6 DOCUMENT 3320
propose to tbe Court a class-xertificatiOD dislxM:ry plan whereby lAniriello Counsel will ·
have) tbe lead role in oonducting class certification discovery, with the McArthur CoUDSCl
plll'licipatiDg bi that discovery and having the right to initiate its own discovery only if it . . . .~ ptopciaes.cezlain specific discovery to Laurlello Counsel that l,auricllo Onmsel diSa&fees with-and lefusos to pursue.
9. This Agreement is ·subject to, as a conditiOD pxecedent, the eotry of a
Court order granting 1he volunlary :Withdrawal of the law fum of Haskell SJmJgbter
YOUDg.&Ral.iker, LLC,.fi:otn ~ ~. - . 10. · The parties hereto hereby sti_pu1ate that 1hey bave all JN!dicipated in the . I . . dn!ftin&ofthis Agree:meat. and therefuJe, the Agreemmt shall not be coostrued against ·
any p8rty OJ!. the basis that sud.. party drafted this Agreement
11. Any modifications of or to this Agreement must be in writing 8IId
ex«''Oted by· all parties.
Agreed ~ on the~ S day of -·.
H,.Q:B, WYNN, NBWEU:.-& -~ll'Jif.l · 025 Third Avenue N~ Suile : BU]pingb~ M,..lSW . (205) 32li-S330 -
7 DOCUMENT 3320 ·. /"'""~ ~ / By: \/a . Jobnoe_~·*. .
GALLOWAY & SOMERVD.LE, LLC 11 Oak Street Birmingham, AL 35203 . (205) 871-2183 .
Br. __ ~.-~ki~~~ {~~~-,q.~~------@ L. North,4 Esq. .
JAMES L. NORTH & ASSOCIATES 700 Title Building. 300 21" Street North. Birmingbam,.AL 35203 . (205) 251-0252 .
LANNY VINES & ASSOCIATES, LLC 2142 Highland Avenue South Birmingham, AL 35205 (205) 933-1277 .
---·-·--·····--··· .. ··-----·····-
2142 Highland Avenue South Binningbarn, AL 35205 (205) 933c1277
8 DOCUMENT 3320
c.,-.. DOCUMENT 3321 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 11 DOCUMENT 3321 DOCUMENT 3322 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
Exhibit 12 DOCUMENT 3322
Admitted in 2800 Zelda Road David I. Schoen Alabama Suite 100-6 Maryland Montgomery, AL 36106 Attorney at Law New York Telephone District of Columbia 334.395.6611
Facsimile July 22, 2016 917.591.7586 Email [email protected]
AIG-Caremark Class Action Claims Administrator c/o Gilardi & Co. LLC P.O. Box 8040 San Rafael, CA 94912-8040 * Via Overnight Mail: EK275131420US *
Re: Johnson, et al. v. Caremark Rx, L.L. C., et al.; Case No. CV -2003-006630 Written Objections to Notice of Proposed Settlement
To the Claims Administrator:
I am writing today, pursuant to §XIII of the Notice ofProposed Settlement of Class Action ("Notice") entered in the above-captioned case, on behalf of the following people, who we believe to be class members in the above-referenced case, in order to provide you with their written objections to the terms of the proposed settlement.
The objectors who we believe to be class members and on whose behalf! am filing these written objections are: Dr. Barry M. Zisholtz, Dr. Mark Haber, Dr. Vahan Kassabian, Dr. Lawrence Goldstone, Ms. Margaret Philmon, Dr. Hal Scherz, Dr. Mark Kozin, and Dr. Neil Gladstone.
I will address below the four subjects the Notice directs the Objections to address:
1. Nature of the Objections: The objecting members have had ve1y little time to consider the terms of the settlement, given the short time frame between service of the Notice and the Objections deadline and the fact that some do not recall receiving any Notice at all. However, given their understanding of the terms of the proposed settlement, objections are made here to:
A. Section XI of the Notice advises that "[C]lass Counsel will request the Court to award attorney's fees not to exceed 40% of the Settlement Amount, plus expenses not to exceed $3,000,000." It is our understanding that there has not yet been any fee petition filed by Class Counsel; however, we have been informed by another attorney that Class Counsel has indicated an intention to request an award of attorneys' fees at the level of 40% of the Settlement Award a level that, according to the Notice, is authorized by the express terms of the settlement.
The objecting members listed above object to a fee award in this case of 40% of the Settlement Amount or any other figure approximately in that range. The objecting parties do not have sufficient infonnation at this juncture to meaningfully propose a fixed appropriate figure or percentage and have no doubt that Class Counsel worked long and hard to obtain this settlement. DOCUMENT 3322
AIG-Caremark Class Action July 22, 2016 Page 2
However, the objecting parties believe that a fee award in the neighborhood of 40% of the Settlement Amount in this case would be excessive and they therefore object to the extent Class Counsel seek an award in that range. At this point, and in order to preserve their objections, the objecting parties hereby object to any attorneys' fee award in this case in excess of20% of the Settlement Amount.
B. To the extent the membership/definition of the Class includes Officers and/or Directors of any of the Defendants or of MedPartners or anyone else who knew or should have known of the fraud and other misconduct alleged in the Complaint in this matter, the objecting members herein object to the inclusion in the Class of any such person and specifically object to the participation of any such person in any benefit derived from the Settlement Award. The objecting parties expressly request an Order excluding any such person from the Class and from any patiicipation in any benefit derived from the Settlement Award.
C. These objecting patiies respectfully object to the extraordinarily short time frame permitted for entering objections to the Proposed Settlement of Class Action and for filing a notice of intent to appear, and the vague provision concerning what must be filed in conjunction 1 with written objections in order to satisfy the 3rct and 4 h elements listed under §XIII for filing written objections.
2. Grounds for the Objections:
The grounds for the first objection is that an award of attomeys' fees at or near the 40% level on a common-fund theory in a class action in Alabama is considerably higher than the "general rule" that provides for a common-fund class action attorneys' fee at "between 20% and 25% ofthe common fund." Union Fid. Life Ins. Co. v. McCurdy, 781 So.2d 186, 190 (Ala. 2000), citing, Edelman & Combs v. Law, 663 So.2d 957,961 (Ala. 1995); see also, Reynolds v. First Alabama Bank, NA., 471 So.2d 1238 (Ala. 1985). Edelman and Reynolds certainly contemplate the possible recovery of attomeys' fees amounting to a higher percentage of the common fund than this "general rule;" but require strict and strong proof justifying the higher level. At this stage, again, we do not know exactly what percentage will be requested or what proof will be adduced to justify any level higher than the 20% or 25% level and so we intend here to preserve our objection to any fee request above 20% and demand proof in suppmi of any request higher than 20%.
The grounds for the second objection are simply the logical and equitable principle that the wrongdoer must not be allowed to profit from his or her wrongdoing. To the extent the class definition or an Order of the Court does not exclude any person who patiicipated in, knew about or should have known about the fraud or other wrongdoing (and failed to take appropriate DOCUMENT 3322
AIG-Caremark Class Action July 22, 2016 Page 3
action), these objectors object.
The grounds for the third objection is simply that in light of the long period of time that has transpired since the transactions at issue occurred (almost 20 years), finding the relevant records establishing class membership and the number of shares acquired and obtaining appropriate indicia of acquisition during the requisite time frame, within the extraordinmy short period of time allocated between the provision of the Notice and the deadline for filing objections has been impossible for class members, despite all due diligence. Additionally, given the fact that some of the objectors do not recall even receiving the Notice, it has proven impossible, despite all due diligence, to locate relevant records, material, and information, thereby denying these class members an inadequate amount of time to prepare and support and file objections and to evaluate, let alone file, a notice of intent to appear with the requisite information.
3 & 4. Proof that the objector is a member of the Class and has not been excluded by the Court on its own motion; and any documentation in support of such objection:.
As noted above in explaining the third objection, the factors identified therein have rendered it impossible for the objectors to find proof of their class membership or documentation in support of their objection, nor is it clear what proof or documentation would be satisfactory. I have included with these objections the Declarations of Dr. Barry M. Zisholtz, Dr. Hal Scherz, and Dr Mark Haber, which explain their situation and explain further that the other objectors are similarly situated. I also have enclosed the first page of an amendment to an agreement between MedPartners and Georgia Urology of November 15, 1996, which shows the payment to Georgia UrolOf,lJ (and acquisition by Georgia Urology) of in excess of $5 million in value of shares of MedPartners ("MPI") common stock. Georgia Urology distributed the shares among the objectors and others based on their internal formula and each acquired them during the relevant time period.
All of the objectors listed herein, other than Dr. Mark Kozin and Dr. Neil Gladstone acquired their shares of common stock as a function of their association with Georgia Urology, all at the same time and based on the same formula. Drs. Kozin and Gladstone believe they acquired the shares of common stock at issue within the relevant time frame for class membership and all of the listed objectors believe, based on the definition of class membership as set forth in the Notice, that they all quality as class members. None of the listed objectors has any reason to believe he or she has been excluded by the Court on its own motion. All objectors will continue their diligent search for proof of their class membership and additional relevant documentation. DOCUMENT 3322
AIG-Carernark Class Action July 22, 2016 Page4
Please convey these objections to the Comi and to all necessaty and appropriate parties in your role as Claims Administrator.
Enclosures DOCUMENT 3322
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CASE NO. CV2003-006630
SAM JOHNSON and CITY OF ) BIRMINGHAM RETIREMENT ) AND RELIEF SYSTEM, for themselves ) individually and on behalf of a class of all ) others who are similarly situated, ) ) Plaintiffs, ) ) vs. ) ) CAREMARK Rx, LLC; AMERICAN ) INTERNATIONAL GROUP, INC.; NATIONAL ) UNION FIRE INSURANCE COMPANY ) OF PITTSBURGH, P A; AIG TECHNICAL ) SERVICES, INC.; and AMERICAN ) INTERNATIONAL SPECIALTY LINES ) INSURANCECOMPANY, ) ) Defendants. )
DECLARATION OF DR. BARRY M. ZISHOLTZ
The undersigned hereby deposes and says the following to the best of my knowledge, recollection, and belief and subject to the penalties for petjury:
1. My name is Barry M. Zisholtz and I am an adult resident citizen of the State of Georgia and I am providing this Declaration on personal knowledge in connection with the filing of my written objections to certain terms ofthe Proposed Settlement of Class Action in the above- captioned case, pursuant to §XIII of the Notice of Proposed Settlement of Class Action.
2. I acquired one or more shares of MedPartners common stock in return for consideration during the period October 30, 1996, through January 7, 1998, inclusive, and I believe I am otherwise a member of the class that has been certified in the above-captioned case.
1 DOCUMENT 3322
3. Since learning of the proposed settlement in this case, I have worked diligently to obtain proof of my stock ownership, the exact date of acquisition, and the number of shares I acquired
during the relevant time frame and I will continue to work diligently toward that end.
4. I am, and have been at all times relevant hereto, a partner in a medical practice, Georgia
Urology, through which my patiners and I acquired our shares ofMedPartners common stock at the same time during the relevant time period and I am aware that some of my partners have received notice of the proposed settlement in this action. I do not recall receiving any such notice
and only learned yesterday about the proposed settlement and the requirements for filing
objections.
5. Because the acquisition of the MedPartners common stock occurred so many years ago
and because the time period for filing objections is so short (even for those who actually received formal notice of the proposed settlement), I have been unable to date to locate my documents related to the transaction through which I acquired my shares of the stock at issue in this
litigation. I have found evidence of my sale of the 61,168 shares at issue in 1997 and I believe I will be able to find evidence concerning the timing of my acquisition of the shares.
6. I have authorized David I. Schoen, Attorney at Law to file written objections to the proposed settlement on my behalf.
Pursuant to 28 U.S.C. § 1746, I declare under penalty ofperjucy that the foregoing is tme / and correct to the best of my knowledge, recollecti and belief. /
Executed on July 22, 2016
I ,l Barry M. Zisholtz
2 DOCUMENT 3322
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CASE NO; CV200J•006630
SAM JOHNSON and CITY OF ) BIRMINGHAM RETIREMENT ) AND RELIEF SYSTEM, for themselves ) individually and on behalf of a class ofall ) others who are similarly situated, ) ) Plaintiffs, ) ) vs. ) ) CAREMARK R'X, LLC; AMERICAN ) INTERNATIONAL GROUP, INC.; NATIONAL ) UNION FIRE INSURANCE COMPANY ) OF PITTSBURGH, PA; AIG TECHNICAL ) SERVICES, INC.; and AMERICAN ) INTERNATIONAL SPECIALTY LINES ) INSURANCE COMPANY, ) ) Defendants. )
DECLARATION OF DR. HAl" SCHERZ
111e undersigned hereby deposes and says the following to the best of my knowledge, recollection:, and belief and subject to the penalties for peljury:
L My name is Hal Scherz and I am an adult resident citizen of the State of Georgia and I am providing this Declaration on personal knowledge in connection with the filing of my written objections to certain terms of the Proposed Settlement of Class Action in the above- captioned case, pursuant to §XIII of the Notice of Proposed Settlement of Class Action.
2. I acquired one or more shares of1v1ed.Partners common stock in return for consideration during the period October 30, 1996, through January 7, 1998, inclusive; and l believe I am otherwise a roernber of the class that has been certified in the above-captioned case.
1 DOCUMENT 3322
3. Since leanring of the proposed settlement in this case, I have worked diligently to obtain proof of my stock ownership, the exact date of acquisition, and the number of shares 1 acquired during the relevant time frame and I will continue to work diligently toward that end.
4. I am, and have been at all times relevant hereto, a partner in a medical practice, Georgia
Urology, through which my partners and I acquired OlU' shares ofMedPartners common stock at the same time during the relevant time period and I am aware that some of my partners have received notice of the proposed settlement in tltis action. I do not recall receiving any such notice and only learned yesterday about the proposed settlement and the requirements for filing objections.
5. Because the acquisition of the MedPartners common stock occurred so many years ago and because the time period tor filing objections is so short (even for those who actually received formal notice of the proposed settlement), I have been unable to date to locate my documents related to the transaction through which I acquired my shares of the stock at issue in this litigation. 1 believe I will be able to find evidence concerning the timing of my acquisition of the shares.
6. I have authorized David L Schoen, Attorney at Law to file written objections to the proposed settlement on my behalf.
Pursuant to 28 U.S. C. §17 46, I declare under penalty of pe1jury that the foregoing is true and correct to the best of my knowledge, recollection, and belief.
Executed on July 22,2016
2 DOCUMENT 3322 07/22/2015 14:43 5785795190 OR CONTROL PAGE 01/02
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CASE NO. CV2003..006630
SAM JOHNSON and CITY OF ) BIRMINGHAM RETIREMENT ) AND RELIEF SYSTEM, for themselves ) individually and on behalf of a class ofal! ) others who are similarly situated, ) ) Plaintiffs, ) ) vs. ) ) CAREMARK Rx, LLC; AMERICAN ) INTERNATIONAL GROUP, INC.; NATIONAL ) UNION FIRE INSURANCE COMPANY ) OF PITTSBURGH, PA; AIG TECHNICAL ) SERVICES, INC.; and AMERICAN ) INTERNATIONAL SPECIALTY LINES ) INSURANCE COMPANY, ) ) Defendants. )
DECLARATION QF DR. MARK A. HABER
The undersigned hereby deposes and says the following to the best of my knowledge,
recollection, and belief and subject to the penalties for peljury:
1. My name is Mark A. Haber and Jam an adult resident citizen of the State of Georgia
and I am providing this Declaration on personal knowledge in connection with the filing of my
written objections to certain terms of the Proposed Sett~ement of Class Action in the above-
captioned case, pursuant to §XIII of the Notice of Proposed Settlement of Class Action.
2. I acquired one or more shares of MedPartners common stock in return for consideration
during the period October 30, 1996, through January 7, 1998, inclusive, and I believe I am
otherwise a member of the class that has been certified in the above-captioned case.
1 DOCUMENT 3322
07/22/2016 14:43 6786795190 OR COHTROL PAGE 02/02
3. Since learning ofthe proposed settlement in this case, I have worked diligently to obtain
proof of my stock ownership, the exact date of acquisition, and the number of shares I acquired
during the relevant time frame and I will continue to work diligently toward that end.
4. I am, and have been at all times relevant hereto, a partner in a medical practice, Georgia
Urology, through which my partners and I acquired our shares ofMedPartners common stock at
the same time during the relevant time period and I am aware that some of my partners have
received notice of the proposed settlement in this action. I do not recall receiving any such notice
and only learned yesterday about the proposed settlement and the requirements for filing
objections.
S. Because the acquisition of the MedPartners common stock occurred so many years ago
and because the time period for filing objections is so sh01t (even for those who actually received
formal notice of the pmposed settlement), I have been unable to date to locate my documents
related to the transaction through which I acquired. my shares of the stock at issue in this
litigation. 1 believe I will be able to find evidence concerning the timing of my acquisition of the
shares.
6. 1 have authorized David I. Schoen, Attorney at Law to file written objections to the
proposed settlement on my behal±:
Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge,
Executed on July 22, 20 16
2 DOCUMENT 3322
~0~~5 96 10:19 FROM:RIVBACK 7709916977 T0:5167461024 PAGE:02 c">r' ·,
[EXECUTION COPY] SECOND AMENDMENT TO CLINIC SERVICES AGREEMENT
-·~~,~~--~-,,- --- "-'-'4~ ~~~,-~ THIS SECOND AMENDMENT TO CONIC SERVICES ~~EMBNT ("Amendment''), made aJld executed as~ftJ~e 15&h day of November, 1996, by aud among MEDPARTNERS, INC. (fonnerly knowli is MedPartners!Multikin. Inc.), a Delaware corporation ("MPl .. ), MP OF DELAWARE, INC. (fonnerly known as MedPanuers, l.nc.), a Delaware corporation ("MPD"): M£DPARTNERS ACQUlSI'I'lON COIU'ORATION, a Delaware corporation (''MedPanners"); and GEORGIA UROLOGY. P.A., a Georgia professional corporallon ("PA'') as follows:
WHEREAS, MPD, MedPanners of Georgia, anc.l PA are parties to a Clime Services Agreemeru daled the 12th day of April, 1995. as amended by an Agreement dated · September 29, 199' (collectively ceferred to as ~ "Ap·eement~):
WHEREAS, MedPannet1 is a successor corpol'ation to MCHtfan.ncn of Georgia;
WHEREAS. each of the partjesto U1e Agreement desires to a.mond tlte Aarcemem as set fonh herein; ·
WHEREAS. MedPartu&:n is a wholly-owned subsidiary of MPD. and MPD is a wbolly-ownc:d subsidiary of MPI; and
WHEREAS, each of the partie& desire for MPl to join as a party hereto.
•(b) CUDic Expente~. The tem1 .. Clinic Expensea" shall uan lhe operadng and non-operating expenses incurred by MedPanners or PA in the opemlion of the Clinic and the Medical Offi~. including, but not limited to: (l) salaries, benefits and other dim:t costs or all cmployet!\of the Clinic (but not includbJg P A Bmploycei or Physician Shareholders); (ii) obligations under leues or subleases tor lhc Medical Offices and equipmcot used by dte Clinic; (iii) personal prgpeny and intanaible taxes assessed against assets WiCd by lbe CUnie; (iv) charitable contributiol15 budgeted and approv~d by Medl)au.nera and PA; (v) depcccialion of any furniture, fixtures. or equipment used by the CUnic.: aucJ cuoortizatiun uf lcucbold iioprovcmenu
WfCOI511.lWlC 1
noll! V.I.NV1J.V Jlf)) , Qg~g ~19 tO~ IV~ to:&l NOI 96/91/Tl DOCUMENT 3325 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3325 DOCUMENT 3310 ELECTRONICALLY FILED STATE OF ALABAMA Revised 3/5/08 Case No. 7/29/2016 1:30 PM Unified Judicial System 01-CV-2003-006630.00 CIRCUIT COURT OF 01-JEFFERSON District Court Circuit Court CV200300663000JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK CIVIL MOTION COVER SHEET JOHN LAURIELLO VS CAREMARK RX LLC Name of Filing Party: C002 - FINNEY JAMES O. JR. C003 - JOHNSON SAM C004 - CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM Name, Address, and Telephone No. of Attorney or Party. If Not Represented. Oral Arguments Requested SCOTT A. POWELL ESQ. 2025 3RD AVENUE NORTH, SUITE 800 BIRMINGHAM, AL 35203 Attorney Bar No.: POW005 TYPE OF MOTION Motions Requiring Fee Motions Not Requiring Fee Default Judgment ($50.00) Add Party Joinder in Other Party's Dispositive Motion (i.e. Amend Summary Judgment, Judgment on the Pleadings, or Change of Venue/Transfer other Dispositive Motion not pursuant to Rule 12(b)) ($50.00) Compel Consolidation Judgment on the Pleadings ($50.00) Continue Motion to Dismiss, or in the Alternative Summary Deposition Judgment($50.00) Designate a Mediator Renewed Dispositive Motion(Summary Judgment, Judgment as a Matter of Law (during Trial) Judgment on the Pleadings, or other Dispositive Motion not pursuant to Rule 12(b)) ($50.00) Disburse Funds Extension of Time Summary Judgment pursuant to Rule 56($50.00) In Limine Motion to Intervene ($297.00) Joinder More Definite Statement Other Motion to Dismiss pursuant to Rule 12(b) pursuant to Rule ($50.00) New Trial Objection of Exemptions Claimed Pendente Lite Plaintiff's Motion to Dismiss *Motion fees are enumerated in §12-19-71(a). Fees pursuant to Local Act are not included. Please contact the Preliminary Injunction Clerk of the Court regarding applicable local fees. Protective Order Quash Local Court Costs $ 0.00 Release from Stay of Execution Sanctions Sever Special Practice in Alabama Stay Strike Supplement to Pending Motion Vacate or Modify Withdraw Other Evidentiary Submissions pursuant to Rule . (Subject to Filing Fee)
Check here if you have filed or are filing Date: Signature of Attorney or Party: contemoraneously with this motion an Affidavit of Substantial Hardship or if you are filing on behalf of an /s/ SCOTT A. POWELL ESQ. agency or department of the State, county, or municipal 7/29/2016 1:03:37 PM government. (Pursuant to §6-5-1 Code of Alabama (1975), governmental entities are exempt from prepayment of filing fees)
*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet. **Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee. DOCUMENT 3323 ELECTRONICALLY FILED 7/29/2016 1:30 PM 01-CV-2003-006630.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323 DOCUMENT 3323