PATRICIA SEITZ, District Judge
THIS MATTER is before the Court upon the Indirect Purchaser Plaintiff Classes' (the "IPP Classes") Motion for Award of Attorneys' Fees, Expenses and Incentive Fees [D.E. 1566-2] and the States of Florida, Kansas, and Colorado's (the "Plaintiff States") Motion for Approval of Allocation of Fees and Costs [D.E. 1568]. The Court preliminarily approved the settlements with respect to the IPP Classes and the Plaintiff States at a two-day hearing held on March 2 and 7, 2005. Following notice to the potential class members, the Court held a two-day final fairness hearing on June 28 and June 29, 2005, at which it heard the arguments of counsel with respect to the issues of fees and costs. Having considered all of the submissions and arguments with respect thereto, and otherwise being fully informed in the premises, this Court ORDERS AND ADJUDGES as follows:
The IPP Classes' Motion for Award of Attorneys' Fees, Expenses and Incentive Fees
1. In determining the attorneys' fee award, the Court considered, inter alia, the factors identified in Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768 (11th Cir. 1991). The Court also considered the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), namely the time and labor required; the novelty and difficulty of the questions involved; the skill required to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the clients or by the circumstances of the litigation; the amount involved and the results obtained; the experience, reputation, and abilities of the attorneys; the undesirability of the case; the nature and the length of the professional relationship with the client; and awards in similar cases.
2. Considering the record, including the facts set forth in the IPP Classes' motion and in the supporting affidavits, the Court finds that IPP Class Counsel have expended significant time and expense in the prosecution of this case for more than six years. The efforts undertaken included extensive investigation of the claims and defenses, substantial fact and expert discovery, significant motion practice and briefing including two appeals before the Eleventh Circuit, and vigorous settlement negotiations with a well-respected mediator. The many thousands of hours that IPP Class Counsel spent on this case necessarily precluded IPP Class Counsel from working on other matters, and thus imposed substantial and significant opportunity costs.
3. The Court also finds that the claims and defenses in this litigation raised complex questions of law and fact, requiring an unusual and extraordinary amount of time, effort, and skill to litigate. The Court recognizes the extensive work that IPP Class Counsel performed on behalf of the Classes, up to and including preparation for trial. Moreover, and despite the complexity of the issues involved, and the tenacity and skill of Defendants' counsel, IPP Class Counsel obtained a settlement of $28.7 million in cash on the eve of trial for the benefit of the Classes (an amount estimated by Plaintiffs' expert economist to be approximately 20% of the total amount of overcharge damages incurred by the Classes). The fees requested are within the range of fees awarded in similar cases.
4. IPP Class Counsel prosecuted this action on a wholly contingent fee basis, and thus IPP Class Counsel have not been compensated for the substantial amount of time and expense involved in prosecuting this case over more than six years. Therefore, while the Eleventh Circuit has recognized that the majority of common fund fee awards fall between 20% and 30% of the fund, with many courts applying a "benchmark" of 25%, the time value of money that has not been paid over the six years of this litigation justifies a slightly higher percentage of the fund in this case. See Camden, 946 F.2d at 774 (noting that 25% benchmark "may be adjusted in accordance with the individual circumstances of each case"). In addition, the Court notes that several courts in similar pharmaceutical antitrust cases have awarded fees falling between 30%-33 1/3% of the common fund. See In re Relafen Antitrust Litig., No. 01-12239-WGY (D. Mass. Apr. 9, 2004) (awarding 33 1/3% of a $175 million settlement fund); In re Buspirone Antitrust Litig., MDL No. 1413 (JKG) (S.D.N.Y. Apr. 11, 2003) (awarding 33 1/3% of a $120 million settlement fund); In re Cardizem CD Antitrust Litig., No. 99-73259 (E.D. Mich. Nov. 25, 2002) (awarding 30% of a $110 million settlement fund).
5. The Court also notes that IPP Class Counsel's requested fee award is fair and reasonable when analyzed in light of the lodestar crosscheck. See Walters v. Int'l Precious Metals Corp., 190 F.3d 1291, 1298 (11th Cir. 1999) (noting that while a lodestar calculation is not the proper method for awarding fees in common fund cases, the lodestar figure may be used to confirm the reasonableness of the percentage of the fund award, by way of comparison). As demonstrated by their affidavits, IPP Class Counsel have collectively expended $12,328,076.48 in time in the nearly six years of this litigation, calculated at their regular hourly rates. A 30% fee award equates to a recovery of approximately 69.84% of IPP Class Counsel's lodestar, which is reasonable in a complex, extensively litigated matter such as this one.
6. Further, despite the presence of significant, sophisticated third-party payer business entities in the Classes, none has objected to the requested fee award, and three institutional class representatives have affirmatively endorsed a 30% fee. Given the fact that a substantial part of the Classes is composed of sophisticated business entities, many of whom have been parties to other pharmaceutical and antitrust cases of this nature, the absence of any objection to the requested fee award is further indication of its reasonableness and of the Class members' appreciation of IPP Class Counsel's extensive efforts in this litigation.
7. Given the findings set out above, and the positive results achieved for the benefit of the Class, IPP Class Counsel's Motion for Award of Attorneys' Fees, Expenses and Incentive Payments to the two Class Representatives [D.E. 1566-2] is GRANTED. IPP Class Counsel are hereby awarded 30% of the gross Settlement Fund (plus interest as noted below), arising out of the Settlement, before deduction of any costs, expenses, or incentive awards, as their fee award. The award of attorneys' fees totals $8,610,000.00 plus interest from March 18 and 28, 2005 (the dates on which Abbott and Geneva, respectively, placed the funds in escrow on behalf of the Classes) to the date of payment, at the same net interest rate earned by the Settlement Fund.
8. In addition, IPP Class Counsel shall be reimbursed from the Settlement Fund for all reasonable costs and expenses incurred in the prosecution of the action itemized in their joint application that are not reimbursed from the proceeds of the Zenith Settlement. The total amount of reimbursable costs and expenses to IPP Class Counsel amounts to $2,000,000, plus interest, which the Court finds to be fair and reasonable. The escrow agent is hereby directed to pay the amounts of attorneys' fees and reimbursable costs and expenses to Lowey Dannenberg Bemporad Selinger, P.C. ("LDBS"), Co-Lead Counsel, on behalf of all IPP Class Counsel. LDBS shall be responsible for allocating such fees and expenses to other IPP Class Counsel in a fair and equitable manner.
In addition to the Abbott/Geneva Settlement, IPP Class Counsel have achieved a settlement with another defendant, Zenith Goldline Pharmaceuticals, Inc., now known as Ivax Pharmaceuticals, Inc. ("Zenith"), for $600,000 plus $100,000 in notice costs ("Zenith Settlement"). The Zenith Settlement was finally approved by the Court on December 22, 2002. Thus, the total recovery in this case from all Defendants is $29,400,000, plus interest. As described in the Notice Of Proposed Class Action Settlement And Hearing Regarding Settlement, the proceeds of the Zenith Settlement are to be applied to the reimbursement of out-of-pocket expenses only; IPP Class Counsel have sought no attorneys' fees from the Zenith Settlement proceeds.
9. In light of their six years of service on behalf of the Classes, involving, inter alia, submitting to depositions, production of numerous documents, and other efforts on behalf of the Classes, the following class representatives are hereby provided incentive awards in the amounts indicated:
Cobalt Corporation $40,000 Blue Cross and Blue Shield of Michigan $40,000 Blue Cross and Blue Shield of Alabama, Inc. $40,000 Ewald and Lavera Grosskrueger $2,500 Victor Scafani $2,500 William Mednick $2,500 Willie O'Neal $2,500 David Grund $2,500 Martin Bernstein $2,500 Albert Meyer $2,500
The Plaintiff States' Motion for Approval of Allocation of Fees and Costs
10. As with IPP Class Counsel, the Attorneys General of Plaintiff States have expended substantial time and expense investigating and prosecuting this case for almost six years. The efforts of the Attorneys General have benefitted not only their own governmental entities and consumers, but also consumers generally in the other states with a certified IPP class and the IPP class as a whole. As a result of the work of the Attorneys General and IPP counsel, and in particular, Patricia Conners of the Florida Attorney General's office, a settlement with Defendants was reached.
11. When a state is represented by its Attorney General, the use of generally prevailing market rates is appropriate for an award of attorneys' fees. See States of Illinois v. Sangamo, 657 F.2d 855, 861 (7th Cir. 1981); In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 537 (E.D. Mich. 2003). In the Government Distribution Plan, incorporated in the State/IPP Settlement, the Plaintiff States agreed to accept $1,625,000 as payment for their attorneys' fees and costs. Based on the record in this case, the work of the Attorneys General, awards in other similar cases, the absence of any objections to the fee and cost request, and the factors set forth in the relevant law, including Camden I and Johnson, discussed above, this Court finds that the amount of $1,625,000 is fair and reasonable as compensation for the Plaintiff States' attorneys' fees and costs. Accordingly, the Plaintiff States' Motion for Approval of Allocation of Fees and Costs [D.E. 1568] is GRANTED. The Court approves the payment of $1,625,000, plus applicable interest, to the Plaintiff States from the State Settlement Fund and directs the escrow agent to pay this sum to the State of Florida, as liaison counsel for Plaintiff States. This principal fee and cost amount of $1,625,000 shall be divided among the Plaintiff States, according to their agreement, as follows:
Florida: $1,500,000 (including $152,367.23 in costs)
Colorado: $75,000 (including $2,014 in costs)
Kansas: $50,000 (no significant costs were incurred)
Accrued interest on the $1,625,000 will be allocated proportionately.
DONE and ORDERED.