Retired federal judge David R. Herndon formerly with the U.S. District Court for the Southern District of Illinois has been appointed to serve on the fee panel in the opioid multidistrict litigation, overseeing the distribution of attorneys’ fees following a proposed $26 billion settlement.
According to an Aug. 10 motion filed by the Plaintiff’s Executive Committee (PEC) in the Northern District of Ohio, Herndon was selected to serve on the Panel of Common Benefit and Contingency Fee Fund Arbiters alongside special masters David R. Cohen and Randi S. Ellis.
“Each of these proposed arbitrary has worked with thousands of lawyers from across the country in the MDL and complex litigation context, and is thoroughly familiar with the interests and issues involved in the fair and reasonable consideration and allocation of common benefit and contingency fees,” the motion states.
Herndon retired from the bench on Jan. 7, 2019, after serving as a judge for 27 years. He was first appointed to the bench in November 1998 after being nominated by former President Bill Clinton.
The motion states that Herndon “served as an MDL transferee judge in major MDLs and other federal complex cases that were successfully resolved through mass tort or class action settlements.”
The PEC requests that the panel oversee the potential settlement fee fund, which would include a Common Benefit Fund and Contingency Fee Fund.
The Common Benefit Fund would make up 60 percent of the fund and would be used to “hold and disburse funds intended to cover common benefit work.”
The Contingency Fee Fund would make up the remaining 40 percent and would be used to “hold and disburse funds intended to compensate eligible counsel for work on behalf of the participating litigating subdivisions, in lieu of enforcement of contingency fee contracts with such subdivisions.”
According to the settlement, pharmaceutical distributors Cardinal, McKesson and AmerisourceBergen would pay up to $21 billion over 18 years and manufacturer Johnson & Johnson would pay up to $5 billion over nine years.
The PEC’s motion states that pursuant to the settlement agreement, the defendants have agreed to make payments into a fund “which is under the continuing jurisdiction of this court and will be used to reimburse attorneys’ fees that have been incurred in furtherance of the opioid litigation related to these defendants, including, but not limited to, work done and fees insured with respect to opioid litigation generally and against other defendants.”
According to the PEC, 38.1 percent of the money will come from McKesson, 31 percent from AmerisourceBergen and 30.9 percent from Cardinal. Johnson & Johnson is expected to also pay $307,692,308 into the fund.
“The obligations of the settling defendants in these settlement agreements are several and not joint. No settling defendant shall be responsible for any portion of another settling defendant’s share,” the motion states.
“The obligations of the settling defendants in the settlement agreements arise out of the claims in this MDL case brought by the settling states and the participating subdivisions related to the alleged past, present, and future financial, societal, and public nuisance harms and related expenditures arising out of the alleged misuse and abuse of opioid products that have allegedly been caused by the settling defendants,” it continues.
The settlement was negotiated by attorneys general from Pennsylvania, North Carolina, New York, Delaware, Louisiana, Tennessee and Connecticut.
Illinois Attorney General Kwame Raoul announced on July 20 that the settlement would resolve the claims of states and local governments nationwide, including Illinois communities. If the settlement is finalized, Raoul said Illinois would receive approximately $790 million.
“The time has come to resolve the cases against companies that contributed to and fueled the opioid epidemic, and we must ensure that resources are distributed in communities hit hardest,” he said. “I have been steadfast in my commitment to reaching a resolution that holds companies accountable for their actions and helps families and communities recover from the devastation the epidemic left behind. I am pleased with the agreement reached by our coalition, and I will continue working to make sure Illinois receives funding to help us abate the opioid crisis.”
Raoul stated in the press release that the majority of the settlement funds would be spent on opioid treatment and prevention.
In Illinois, opioid overdose deaths increased by 36 percent in the first three quarters of 2020 over the same period in 2019, according to the Illinois Department of Public Health. More than 15,000 Illinois residents died by opioid overdoses from 2008 through 2019.