Driscoll objects to Tillery's $16.8 million fee

Ann Knef Feb. 28, 2007, 10:12am

John Driscoll

St. Louis attorney John Driscoll would like to rein in class action competitor Stephen Tillery's hefty $16.8 million fee for settling a national Paxil case in Madison County.

Driscoll, whose similar class action claim against GlaxoSmithKline was halted when Tillery settled Hoorman last year, claims Tillery's take is unreasonable because there's no correlation between the benefits victims may receive and Tillery's invariable fee, according to a settlement objection motion filed Feb. 23.

In his brief, Driscoll sounds more like a tort reformer than a prolific plaintiff's attorney in his embrace of restrictions set forth in the Class Action Fairness Act.

"This court should be guided, at least in part, by the message that our United States Congress has clearly sent in the recently enacted Class Action Fairness Act," Driscoll wrote in objection to the Hoorman v. GlaxoSmithKline settlement. "When those amounts of the settlement not claimed or redeemed by eligible class members reverts to the Defendant and the attorneys fees are in no way assessed in proportion to the amount of class members actually benefited, a settlement is unreasonable."

Driscoll wrote that Tillery's fee should correspond to the amount claimed by victims.

"Perhaps the horse should be put in front of the cart," Driscoll wrote. "Perhaps class counsels' attorneys' fees should be limited to a reasonable percentage of the cash fund realized by actual real claimants that come forward and receive a tangible benefit."

Driscoll also wrote that GlaxoSmithKline "struck quite a deal, as it will receive a reversion of all the money that remains after the $16.8 million dollars in attorneys' fees and other di minimus administration costs are paid."

He wrote that Madison County Circuit Judge Nicholas Byron realized a similar situation in the Price v. Philip Morris case and so ordered that unclaimed "Price" funds be distributed to various law schools. That case was overturned by the Illinois Supreme Court.

Driscoll is a busy attorney currently juggling a closely-watched Madison County Vioxx trial. His co-counsel on Tuesday told jurors the plaintiff would be asking for "tens of millions" of dollars from Merck in the wrongful death, product liability case.

Last October, GlaxoSmithKline agreed to allocate $63.8 million to settle the case brought by Tillery. The plaintiffs claimed they suffered actual economic damages because GlaxoSmithKline promoted Paxil and Paxil CR for prescription to patients under the age of 18, while concealing negative information.

Madison County Associate Judge Ralph Mendelsohn signed the settlement and imposed an injunction on competing Paxil class actions, including the one brought by Driscoll and his co-counsel Christopher Cueto of Belleville in St. Clair County.

Driscoll is battling to overturn that injunction.

In his objection motion, Driscoll also claims Tillery's settlement was improperly premised on the Illinois Consumer Fraud Act.

"The instant case was brought by the plaintiffs as a putative nationwide class action, premised upon the defendant's violations of the Illinois Consumer Fraud Act and 'other' states' consumer fraud acts," he wrote.

He states the Illinois Supreme Court's Avery decision does not allow for fraudulent transactions outside of the state under the Illinois Consumer Fraud Act.

Driscoll also states that there was not a "single other" state consumer fraud act cited by the plaintiffs.

A fairness hearing is scheduled April 25.

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