NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-2990
______________
IN RE: AVANDIA MARKETING SALES PRACTICES
AND PRODUCTS LIABILITY LITIGATION
*Law Office of Steven M. Johnson PC & Avandia Clients,
Appellants
*(Pursuant to Rule 12(a) Fed. R. App. P.)
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-07-md-01871)
Honorable Cynthia M. Rufe, District Judge
______________
Argued June 13, 2016
BEFORE: AMBRO, JORDAN, and GREENBERG, Circuit Judges
(Filed: July 27, 2016)
Louis B. Kupperman, Esquire
Mathieu Shapiro, Esquire (Argued)
Obermayer Rebmann Maxwell & Hippel
1617 John F. Kennedy Boulevard
One Penn Center, 19th Floor
Philadelphia, PA 19103
Attorneys for Appellants
____________________
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Vance R. Andrus, Esquire
Andrus Wagstaff
7171 West Alaska Drive
Lakewood, CO 80226
Bryan F. Aylstock, Esquire
Aylstock Witkin Kreis & Overholtz
17 East Main Street
Suite 200
Pensacola, FL 32502
Dianne M. Nast, Esquire
Erin C. Burns, Esquire
NastLaw
1101 Market Street
Suite 2801
Philadelphia, PA 19107
Thomas P. Cartmell, Esquire
Wagstaff & Cartmell
4740 Grand Avenue
Suite 300
Kansas City, MO 64112
Joseph J. Zonies, Esquire
Sean Connelly, Esquire (Argued)
Zonies Law
1900 Wazee Street
Suite 203
Denver, CO 80202
Stephen A. Corr, Esquire
Begley Carlin & Mandio
680 Middletown Boulevard
P.O. Box 308
Langhorne, PA 19047
Attorneys for Appellee
2
______________
OPINION*
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on an appeal from a final order of the
District Court dealing with an assessment against monetary recoveries made in
settlements of underlying Illinois state-court actions. The underlying actions involved
numerous plaintiffs who sued in Illinois state court in actions comparable to those that
plaintiffs brought in district court litigation consolidated in a multi-district litigation
(“MDL”) in the Eastern District of Pennsylvania. Both the state and district court
litigation concerned the effects of Avandia, a drug developed and marketed by the
defendant, GlaxoSmithKline (“GSK”). Following a settlement in the Illinois state-court
cases, the plaintiffs’ attorneys leading the MDL sought an order requiring the
withholding of seven percent of the proceeds of the state-court settlements, which the
plaintiffs’ attorneys contended was required by an order entered in the MDL. The MDL
Court had provided for the withholding to compensate and reimburse the plaintiffs’
attorneys who completed work for the common benefit of all plaintiffs pursuing
comparable claims against GSK.
____________________
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
3
Lead counsel for the Illinois state-court plaintiffs contended that the District Court
did not have jurisdiction over the Illinois proceedings, so he objected to the assessment.
But the Court rejected this argument, as it determined that it had jurisdiction and that the
seven-percent assessment was warranted. Accordingly, it issued an order on July 21,
2015, to that effect. Counsel and the plaintiffs from the Illinois cases now appeal from
that order, contending that the Court did not have jurisdiction to enter the order.
The specific question that we address is whether the MDL pretrial order entered in
the District Court establishing a common benefit fund for plaintiffs’ attorneys working
for the common benefit of all similarly situated plaintiffs includes assessments from
proceeds recovered in the Illinois cases if attorneys participating with lead counsel in the
Illinois cases obtained discovery materials gathered and created by MDL common benefit
counsel and consented to the proceeds from the Illinois cases being contributed to the
fund. We conclude that the Court did not exceed its jurisdiction in resolving the issue
and did not err in finding that the seven-percent assessment was warranted.
Consequently, we will affirm its order of July 21, 2015.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Avandia MDL
On October 16, 2007, the United States Judicial Panel on Multidistrict Litigation
created MDL No. 1871, In re Avandia Marketing, Sales Practices and Products Liability
Litigation (the “Avandia MDL”), in the Eastern District of Pennsylvania, where it has
remained. In doing so, the Panel acted in accordance with its authority under 28 U.S.C.
4
§ 1407(a), which permits the transfer of civil actions “pending in different districts” to a
single federal district for coordinated or consolidated pretrial proceedings. The Avandia
MDL consolidated all product liability cases arising from the development and marketing
of the drug Avandia. In a majority of the cases, the plaintiffs included an allegation that
Avandia, a prescription drug intended to treat type-two diabetes, increased the risk of
heart failure among its users.
In accordance with its MDL responsibilities, the District Court created a Plaintiffs’
Steering Committee (“PSC”) in the Avandia MDL. The PSC spent years conducting fact
and expert discovery and participating in extensive pretrial motion practice. The PSC has
been succeeded by a Plaintiffs’ Advisory Committee (“PAC”) in the Avandia MDL, and
the PAC is effectively the appellee in the appeal.1 On August 26, 2009, the Court entered
Pretrial Order 70 (“PTO 70”), the application of which is at this heart of this appeal.
PTO 70 established the Avandia Common Benefit Fund (the “Fund”) as a means through
which to “compensate and reimburse attorneys for services performed and expenses
incurred for MDL administration and common benefit.” (A288). There was a voluntary
Attorney Participation Agreement (the “Participation Agreement”) that was attached as
an exhibit to PTO 70. It was considered a “private and cooperative agreement” between
the PSC and other plaintiffs’ attorneys. (A291, ¶ 2).
1
In early 2012, after the settlement of thousands of claims, the District Court terminated
the PSC and created the PAC “to ensure that a small number of PSC members with
valuable historical knowledge about the MDL would remain available to serve the
litigation, in a limited, advisory capacity, after settling their claims.” (A5 n.1). The PAC
is participating in this appeal seeking to uphold the rulings of the District Court.
5
PTO 70 defined “Participating Counsel” to include: “(1) all members of the PSC
and (2) any other plaintiffs’ attorneys who sign on to the Participation Agreement.” (Id.).
It further explained that “Participating Counsel are entitled to receive the MDL common
benefit work product and the state court work product of those attorneys who have also
signed the Participation Agreement and shall be entitled to seek disbursements as Eligible
Counsel” in accordance with PTO 70. (Id.). In return for receipt of the common benefit
work product, “Participating Counsel agree[d] to pay the assessment amount [set forth in
PTO 70] on all filed and unfiled cases or claims in state or federal court in which they
share a fee interest.” (Id.). The assessment amount was defined as “seven percent (7%)
of the Gross Monetary Recovery” for all “Covered Claims.” (A293, ¶ 4(b)). “Covered
Claims” were defined as follows:
(a) All Avandia claims now or hereafter subject to the
jurisdiction of MDL 1871, whether disposed of before or after
remand regardless of whether counsel holding a fee interest in
such Avandia claims in such cases have signed the
Participation Agreement; [and]
(b) All Avandia claims, regardless of whether those claims
are subject to the jurisdiction of MDL 1871, tolled, unfiled, or
filed in another jurisdiction, in which the following attorneys
have a fee interest, including but not limited to:
(i) Protective Order: Those attorneys who executed the
Endorsement of Protective Order, attached to Pretrial
Order 10 [(“PTO 10”)], and
(ii) Participating Counsel: Members of the PSC and
plaintiffs’ attorneys who sign on to the Participation
Agreement[.]
(A292, ¶ 3).
6
Thus, PTO 70 set forth that once counsel signed the Participation Agreement or
the Protective Order, PTO 10, to which the definition of a covered claim in PTO 70 made
reference, all Avandia claims in which that counsel had a financial interest—whether
those claims are filed in state or federal court—would fall within the ambit of PTO 70
and be subject to the seven-percent common benefit fund assessment. PTO 10 concerned
confidential information, which it defined, and limited the disclosure of confidential
discovery material to specifically enumerated situations. (See A270-84).
B. The Johnson Firm Cases2
In 2009, the Law Offices of Steven M. Johnson, P.C. (the “Johnson Firm”) filed a
multi-plaintiff lawsuit in an Illinois state court titled Gabel v. GlaxoSmithKline. In the
spring of 2012, while Gabel was pending, Steven Johnson (“Johnson”) of that firm
attended an Avandia Litigation Conference led by Paul Kiesel, then coordinating counsel
for the Avandia MDL. The purpose of the conference was to distribute MDL work
product dubbed “trial in a box” to attorneys who still were litigating Avandia cases. The
work product—which included, among other things, expert reports on causation and
liability, access to experts, transcripts, demonstratives from Daubert3 hearings, a database
of indexed documents, deposition transcripts, model in limine motions, and model
oppositions to defense in limine motions—was compiled following the settlement of
thousands of MDL cases.
2
The following facts are the findings of the District Court, which followed an evidentiary
hearing on April 22, 2015. We review these findings for clear error, which we do not
find. See CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008).
3
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786 (1993).
7
During the conference, Johnson met Michael Baum (“Baum”) of the firm Baum,
Hedlund, Aristei & Goldman (the “Baum Firm”) and Erick Rosemond (“Rosemond”) of
The Rosemond Law Group, P.C. (the “Rosemond Firm”). Both Baum and Rosemond
had cases in the MDL, had signed the PTO 10 Protective Order and the PTO 70
Participation Agreement, and had performed common benefit work for the MDL. Thus,
PTO 70 bound Baum and Rosemond to pay the seven-percent common benefit fund
assessment for all cases in which they shared a fee interest. Johnson, who was aware of
Baum’s and Rosemond’s obligations under PTO 70, asked them to serve as trial counsel
in Gabel. Thereafter, both Baum and Rosemond entered appearances and obtained pro
hac vice admittance in Illinois state court as counsel for the Gabel plaintiffs.
With respect to the fee-sharing arrangements among the attorneys involved in the
Gabel case, the District Court, following a hearing that we discuss below, found that
email communications between Baum and Johnson “made it clear” that counsel planned
“to use the MDL trial in a box and other work product, and indicated that trial counsel’s
fees would be calculated on the balance of the fees remaining after subtracting the debt
owed to the [PAC] for the use of the MDL work product.”4 (A7).
According to Baum, when he started participating in the Gabel case, he
immediately reviewed Johnson’s inventory of cases to determine which cases could be
bellwether cases and began to prepare for trial. “He further testified that he explained to
4
Baum and Rosemond testified at the hearing in the District Court and presented
evidentiary exhibits, including emails that they exchanged with Johnson. Johnson did not
testify because he contended that the Court did not have jurisdiction to hold the hearing.
Nevertheless, he appeared through counsel solely to oppose the Court’s exercise of
jurisdiction.
8
Johnson, in an email, that because they were relying upon MDL work product, the cases
in the Gabel case would be subject to the common benefit fund assessment, although they
could discuss the possibility of a set-off or reduction of the assessment required by PTO
70 with the MDL PAC.” (A8). In late 2012, while Baum and Rosemond continued to
prepare for trial, the Johnson Firm began negotiating a master settlement agreement with
GSK, and by December 2012, the parties had reached a global settlement agreement in
principle for the Illinois cases.5
C. The Order to Show Cause
In the wake of the Gabel settlement, the Illinois state court entered an order that
required GSK to hold seven percent of the Gabel settlement funds in reserve, pending
resolution of any issues regarding the MDL common benefit fund obligations pursuant to
PTO 70.6 The Illinois state court then scheduled a hearing at which it intended to
determine whether Johnson and the Gabel plaintiffs were obligated to pay the common
benefit fund assessment to the Fund. But when the PAC learned about the scheduled
hearing, it moved before the District Court for an Order to Show Cause why the MDL
Court—instead of the Illinois state court—should not interpret PTO 70 and determine
whether a common benefit assessment was due.7 In response, Baum and Rosemond filed
5
The details of this settlement agreement were not finalized until sometime later and are
not included in full in the record before us.
6
Pursuant to this state-court order, the funds are currently held in an attorney trust
account in Philadelphia.
7
The PAC also sought an injunction under the All Writs Act, in which it asked the
District Court to enjoin the Illinois state court from holding the hearing and addressing
the issue. (A182, 7:2-8).
9
declarations in which they stated that they and their respective firms did not dispute their
obligations to pay an assessment from the Gabel settlement. In addition, the Illinois local
counsel on the plaintiffs’ Gabel team—Robert G. Jones, David R. Jones, and the Jones
Law Firm, P.C.—likewise filed a declaration in which they stated that they did not
oppose payment of the common benefit fund assessment. The Johnson Firm, on the other
hand, challenged the Court’s jurisdiction to enter an assessment order with respect to the
Gabel litigants. Specifically, the Johnson Firm argued that the Court lacked subject-
matter jurisdiction to issue PTO 70, insomuch as PTO 70 purports to reach purely state-
court actions. Further, the Johnson Firm challenged the Court’s personal jurisdiction to
enforce PTO 70 against the Gabel settlement.
Following a hearing on April 22, 2015, at which both Rosemond and Baum
testified and fourteen exhibits were admitted into evidence, the District Court issued an
Order and Memorandum Opinion. In that opinion, dated July 21, 2015, the Court held
that it had jurisdiction to interpret PTO 70 and determine whether a seven-percent
common benefit fund assessment was due as a result of the settlement of the Gabel
claims. Specifically, the Court concluded that “[t]he Johnson Firm implicitly entered into
a contract with the MDL [PSC], agreeing to be bound by the terms of the Attorney
Participation Agreement and PTO 70 in exchange for access to MDL work product[.]”
(A2). The Court further held, on the merits, that, in accordance with PTO 70, the seven-
percent assessment was due for all settled claims in Gabel. On August 18, 2015, the
Johnson Firm and its clients in the Gabel cases appealed.
10
III. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW
The question of whether the District Court had jurisdiction is the central issue
presently on appeal, and we will resolve it below. We have jurisdiction pursuant to 28
U.S.C. § 1291. We exercise plenary review over the Court’s jurisdictional analysis. See
Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 n.7 (3d Cir. 2015). We
review the Court’s factual findings for clear error, CNA v. United States, 535 F.3d 132,
139 (3d Cir. 2008), and review its fee determination for abuse of discretion, “which can
occur if the judge fails to apply the proper procedures in making the determination, or
bases an award upon findings of fact that are clearly erroneous,” In re Diet Drugs Prod.
Liab. Litig., 582 F.3d 524, 538 (3d Cir. 2009) (internal quotation marks omitted).
IV. DISCUSSION
On July 2, 2015, we addressed the subject-matter jurisdiction issue now before us
when addressing a different law firm’s challenge to the seven-percent assessment in the
same MDL currently before us. See In re Avandia, 617 F. App’x 136 (3d Cir. 2015),
cert. denied, 136 S.Ct. 1167 (2016) (“Avandia I”). Avandia I involved the Girardi Keese
Law Firm (“Girardi Keese”), which represented thousands of individuals in actions
against GSK, primarily in California state court. Id. at 137. Unlike the Johnson Firm,
which represented plaintiffs only in state court, Girardi Keese represented some federal
plaintiffs whose cases were consolidated in the MDL for pretrial purposes. See id. at
139. As a result of the cases that were consolidated in the MDL, an attorney from Girardi
Keese signed an attorney participation agreement in May 2009. Id. at 138.
11
In Avandia I we summarized the pertinent terms of that agreement as follows:
The Agreement ‘incorporate[d] by reference any Order of the
Court regarding assessments and incorporate[d] fully
[t]herein all defined terms from such Order(s).’ The
Agreement covered ‘each and every claim, case, or action
arising from the use of Avandia in which [Girardi Keese] has
a financial interest, whether the claim, case, or action is
currently filed in state or federal court, or is unfiled, or is on a
tolling agreement.’ For these covered cases, Girardi Keese
agreed to contribute seven percent of the gross recovery to
‘the Plaintiff’s Litigation Expense Fund’—four percent to
come from Girardi Keese’s attorneys’ fees and three percent
to come from the clients’ share of the recovery. In exchange
for seven percent of the recovery, the Steering Committee
promised to provide work product developed by the Steering
Committee and to ‘cooperate with [Girardi Keese] to
coordinate the MDL litigation and the state litigation for the
benefit of the plaintiffs.’ Additionally, the Agreement
authorized Girardi Keese to ‘apply to the Court for common
benefit fees and reimbursement of expenses’ if 1) the Steering
Committee requested assistance; 2) Girardi Keese ‘expended
time and efforts for the common benefit’; and 3) Girardi
Keese submitted an application ‘in accordance with the
Court’s orders, or in the absence of such orders, the
procedures established by the [Steering Committee].’
Id. (quoting the attorney participation agreement that Girardi Keese executed).
Shortly after Girardi Keese signed this attorney participation agreement, the
District Court, following the PSC’s motion, entered PTO 70 with its accompanying
Participation Agreement incorporated therein. Id. at 138-39. Importantly, “[t]he
Attorney Participation Agreement attached to Pretrial Order 70 as [an exhibit] was
materially identical to the Attorney Participation Agreement Girardi Keese signed in May
2009.” Id. at 139.
12
While Girardi Keese had thousands of cases in state court and only 25 in the
MDL, “Girardi Keese used MDL work product, in the form of expert reports, to oppose
GlaxoSmithKline’s motions for summary judgment in the California [state] proceedings
and indicated to the state court that it would use a variety of MDL materials in a planned
trial.” Id. But that trial was not held as Girardi Keese settled all of its cases, both those
in state court and those in the MDL, in August 2012 before there was a trial. Id.
Following the global settlement, GSK indicated to Girardi Keese that it would withhold
seven percent of the settlement for each claim pursuant to the attorney participation
agreement that Girardi Keese had signed in 2009. Id. Girardi Keese, in turn, contested
the applicability of the assessment to the California state-court cases.
Following several rounds of briefing and an evidentiary hearing, the District Court
concluded that all of the settled claims were subject to the seven-percent assessment. Id.
Girardi Keese appealed, and we affirmed. See id. at 144.
Girardi Keese’s primary argument on appeal was that the District Court lacked
jurisdiction over the California state-court cases and thus it did not have the authority to
impose the seven-percent assessment against those settlements. Id. at 140. “We agree[d]
with Girardi Keese that had the District Court simply ordered the firm, as total strangers
to the litigation, to contribute to the common benefit fund from the settlement of its
clients’ state-court cases, it would have exceeded its jurisdiction.” Id. at 141. We
determined, however, that the Court had not done that. See id. Rather, we concluded
that the Court “properly exercise[d] jurisdiction to enforce the contract Girardi Keese
made with the [PSC].” Id.
13
In reaching this result, we analyzed as follows:
A district court that supervises a multidistrict litigation
‘has—and is expected to exercise—the ability to craft a
plaintiffs’ leadership organization to assist with case
management.’ Included in that ability ‘is the power to
fashion some way of compensating the attorneys who provide
class-wide services.’ Here, the District Court issued an
order—Pretrial Order 70—dictating how it would allow the
leadership organization—the Steering Committee—to be
compensated. One way was to assess a percentage of the
recovery of the cases before the MDL. The District Court
also permitted the Steering Committee to, essentially, trade
work product for a share in the recovery in cases not before
the MDL. The District Court identified a form agreement that
the Steering Committee and interested counsel must use to
participate in the common benefit scheme and ‘incorporated’
the agreement into the order.
Id. at 141-42 (quoting In re Diet Drugs Prod. Liab. Litig., 582 F.3d at 547) (emphasis in
original).
Against this backdrop, we reasoned that “[w]hen a district court incorporates the
terms of an agreement into a court order, ‘a breach of the agreement would be a violation
of the order.’” Id. at 142 (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 381, 114 S.Ct. 1673, 1677 (1994)). In turn, “[b]ecause a district court has
jurisdiction to determine whether one of its orders has been violated, it may adjudicate
whether an agreement incorporated into a court order has been breached.” Id. We
determined that, even though Girardi Keese signed its attorney participation agreement
prior to the time that the District Court entered PTO 70 with the attached Participation
Agreement, the Court’s order still incorporated the Girardi Keese attorney participation
14
agreement,8 and thus, the Court had jurisdiction to determine whether that agreement and
the Court’s order had been breached, and if so, to remedy that breach. Id. at 142-44.
Based on the above, we concluded as follows:
This is not, as Girardi Keese argues, finding subject-matter
jurisdiction by agreement of the parties. The agreement itself
is not the source of the District Court’s authority. Rather, the
District Court’s authority over this dispute arose from its
responsibilities to appoint and supervise a coordinating
committee of counsel. The agreement was simply
incorporated into an order the District Court was empowered
to issue. Because it was within the District Court’s power to
issue an order governing how to compensate the Steering
Committee for its work and because Girardi Keese’s Attorney
Participation Agreement was incorporated into that order, the
District Court had jurisdiction to adjudicate whether Girardi
Keese breached the Attorney Participation Agreement and
thereby violated Pretrial Order 70.
Id. at 143-44 (footnote omitted).
There is no significant factual distinction between the present case and Avandia I
in light of the fact that both Baum and Rosemond signed the Protective Order and the
Participation Agreement and both were retained as counsel for the Gabel plaintiffs.
Though the District Court determined that the Johnson Firm implicitly agreed to PTO 70
through its conduct, we need not determine if it did so because Baum and Rosemond’s
involvement was sufficient to bring the Gabel cases within the MDL Court’s reach.
8
We provided three justifications for this determination. First, the attorney participation
agreement that Girardi Keese signed contemplated that the District Court would, in the
future, enter an order concerning assessments. Id. at 142. Second, the attorney
participation agreement that Girardi Keese signed created continuing obligations, and the
agreement’s obligations were still in progress at the time that PTO 70 was entered. Id.
Finally, the terms of PTO 70 “indicate that the District Court not only incorporated into
the order all agreements using the appended form order but also the agreements made that
used the same terms.” Id. at 142-43.
15
We held in Avandia I that the District Court had the authority to issue PTO 70,
and the incorporation of the Participation Agreement into PTO 70 provided jurisdiction to
adjudicate whether Girardi Keese breached its attorney participation agreement and
thereby violated PTO 70. See id. at 142-44.9 The same is true with respect to the actions
of Baum and Rosemond, both of whom signed the Participation Agreement incorporated
into PTO 70 and, accordingly, the District Court reached the correct result.
Appellants argue that the District Court nonetheless erred because it lacked
personal jurisdiction over them. Specifically, they contend that they should have received
a complaint and a summons rather than an order to show cause. However, the Court’s
personal jurisdiction over Baum and Rosemond is not in dispute. Because their
participation in the state-court litigation triggered the obligation to pay into the Fund, we
need not decide whether the Court also had personal jurisdiction over Appellants.10
V. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s determination in its
order of July 21, 2015 that it had jurisdiction to address the applicability of PTO 70 to the
Gabel case, and we likewise will affirm the District Court’s conclusion that, pursuant to
9
Though Avandia I is not a precedential opinion, we adopt its reasoning as our own.
10
We are not concerned in this appeal with the arrangements between Johnson and Baum
and Rosemond. Moreover, as we noted in Avandia I, whether counsel “must reimburse its
clients for [their] share of the assessment is a question governed by the representation
agreement between [the lawyers and their] clients.” Id. at 144 n.5.
16
PTO 70, seven percent of the gross monetary recovery of the Gabel settlement is due to
the Common Benefit Fund.
17