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Stephanie Cohe N v. Warner Chilcott Public Ltd. Co.

November 15, 2007

STEPHANIE COHE N AND SUNDA CROONQUIST, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
WARNER CHILCOTT PUBLIC LIMITED COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on the parties' Joint Motion for Final Approval of the Settlement in this putative class action. The parties previously moved for preliminary approval of the settlement and conditional certification of the class, which the Court granted by Order dated June 27, 2007. Thereafter, a sole objector filed a notice of objection to the settlement, to which the parties responded. The parties filed their final motion for entry of judgment and approval of the settlement, as well as their motion for attorneys' fees, expenses, and incentive awards on October 2, 2007. Finally, on November 6, 2007, the Court held a fairness hearing, as required by Federal Rule of Civil Procedure 23(e). The arguments and representations made on the record during that fairness hearing are hereby expressly incorporated and made a part of this Memorandum Opinion.

Upon a searching review of the parties' preliminary and final motions for approval of the settlement and certification of the class, the filings submitted in connection with the sole objection to the settlement, the arguments and representations made and the exhibits submitted at the fairness hearing, the relevant statutes and caselaw, and the entire record herein, the Court shall overrule the sole [91] Objection to the settlement, and shall deny the Objector's counsel's

[92] motion for attorneys' fees and expenses. Furthermore, the Court shall grant the parties' [93] Joint Motion for Final Approval of the Settlement, and shall grant [95] Class Counsel's Petition for an Award of Attorneys' Fees, Reimbursement of Expenses, Incentive Awards to the Class Representatives, and Authorization to Distribute the Remaining Funds in the Notice Account to Charity.

I. BACKGROUND

A. Factual and Procedural Background

Plaintiffs, Stephanie Cohen and Sunda Croonquist, brought this putative class action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and a class of consumers who purchased Ovcon 35 during the period April 22, 2004 through June 27, 2007 (the date on which the Court entered its Order preliminarily approving the settlement in this action).*fn1

Plaintiffs named as Defendants to this action Warner Chilcott Public Limited Company, Warner Chilcott Holdings Company III, Ltd., Warner Chilcott Corporation, Warner Chilcott (US) Inc., Warner Chilcott Company, Inc., Galen (Chemicals) Ltd. (together "Warner Chilcott") and Barr Pharmaceuticals, Inc. ("Barr"). Plaintiffs filed their Amended Class Action Complaint on April 19, 2006, alleging that Defendants participated in an unlawful conspiracy to restrain trade, in which Barr agreed not to market a generic version of Warner Chilcott's Ovcon 35 in exchange for payments from Warner Chilcott. Am. Compl. ¶¶ 1-5. Plaintiffs allege that Defendants' agreement denied members of the Settlement Class the benefits of competition and of less-expensive generic versions of Ovcon 35, such that members of the Settlement Class paid artificially inflated prices for Ovcon 35. Id. ¶ 6. Plaintiffs further allege that Defendants' conduct violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, the antitrust and/or consumer protection statutes of certain states, and the unjust enrichment laws of the fifty states. Id. ¶¶ 7-9.

On May 5, 2006, Defendants filed a Joint Motion to Dismiss Plaintiffs' Amended Complaint, seeking to dismiss the majority of Plaintiffs' claims. Defendants' Joint Motion to Dismiss was fully briefed and pending before the Court at the time that the parties reached the settlement in this action. Mem. of P& A in Support of Joint Mot. for Final Approval of the Settlement (hereinafter "Final Mem.") at 3. In addition, Plaintiffs filed a Motion for Class Certification on March 23, 2007, which included a declaration from their expert economist, Edward J. Heiden, Ph.D. Id. at 4. The parties also engaged in extensive discovery in this action pursuant to a scheduling order entered by the Court. In particular, Plaintiffs' counsel "reviewed approximately one million documents, attended approximately twenty depositions, and consulted with" an expert, as well as reviewed the reports of Defendants' experts, which were served in other related actions pending before this Court. Id. at 3-4. The Court initially referred this action to Magistrate Judge Alan Kay on November 27, 2006. See Order, Docket No. [66], Nov. 27, 2006. Following months of negotiation, the parties executed the Settlement Agreement on May 16, 2007. See Accompanying Order, Ex. A (Settlement Agreement). On June 27, 2007, the Court entered an order conditionally approving certification of the Settlement Class, preliminarily approving the settlement and providing the form and manner of notice to the Settlement Class. In particular, the Court's June 27, 2007 Order defined the Settlement Class as:

All persons who purchased Ovcon 35 for personal and household use in the United States at any time during the period from April 22, 2004 through the date of the Preliminary Approval Order. Excluded from the Settlement Class are all governmental entities and the Defendants, their directors, officers and employees, and their respective subsidiaries and affiliates.

Order, Docket No. [89] at ¶ 2.

B. The Terms of the Settlement Agreement

Pursuant to the Settlement Agreement, Warner Chilcott and Barr will each donate $3 million worth of combined hormonal contraceptive products throughout the United States to (1) primary care physicians not currently receiving samples of the donated products who prescribe combined hormonal contraceptives, (2) university health centers or clinics, or (3) charitable organizations providing reproductive healthcare services to women, for a total product donation worth $6 million at retail value. In addition, Warner Chilcott and Barr agreed to pay $1 million each, for a total value of $2 million, into a fund to be used to pay reasonable attorneys' fees and expenses, as well as incentive awards to the named Plaintiffs. Finally, Warner Chilcott and Barr each paid $150,000, for a total value of $300,000, into a fund that was used to provide notice to the Settlement Class and to pay for notice administration expenses. Under the terms of the Settlement Agreement, Plaintiffs and each member of the Settlement Class agree to release all claims against Defendants relating to the prices paid for Ovcon 35 during the Class Period.

See Settlement Agreement ¶ 27; Final Mem. at 4.

C. Form and Manner of Notice to the Class

The Court's June 27, 2007 Order approved Plaintiffs' proposed form and manner of giving notice to the Class and found the publication of notice in the weekend edition of USA Today and through an internet notice campaign to be the "best notice practicable under the circumstances . . . in full compliance with the notice requirements of Rule 23 of the Federal Rules of Civil Procedure and due process of law." Order, Docket No. [89] at ¶ 7. The Order accompanying this Memorandum Opinion and the Declaration of Orran L. Brown filed in support of the parties' Joint Motion for Final Approval describe in detail the manner in which notice was actually provided to members of the Settlement Class. See Final Mem. at 5-6, Ex. 1 (10/2/07 Brown Decl.) (hereinafter "Brown Decl."). In particular, a Short Form Notice ran in the weekend edition of USA Today and reached an estimated circulation of 2.5 million and estimated readers of 5.2 million. Brown Decl. ¶ 10. Notice was also published via an internet notice campaign targeted toward women of reproductive age. Id. ¶ 11. The notice clearly stated that Class Members had until September 17, 2007 to opt-out of the settlement and set forth the procedure for doing so. No consumer chose to opt-out of the settlement. Id.

The notice also clearly stated that Class Members had until September 17, 2007 to object to the settlement and set forth the procedure for doing so. On September 17, 2007, Rita R. Morales filed an Objection to Class Settlement and Application for Attorneys' Fees and Expenses. At the Court's request, Plaintiffs filed a Response to the Objection on October 2, 2007, and Objector Morales filed her Reply on October 12, 2007. The nature of the Objection is discussed in greater detail below.

D. Joint Motion for Final Approval and Fairness Hearing

On October 2, 2007, the parties filed their Joint Motion for Final Approval of the Settlement, and Class Counsel filed their Petition for an Award of Attorneys' Fees, Reimbursement of Expenses, Incentive Awards to the Class Representatives, and Authorization to Distribute the Remaining Funds in the Notice Account to Charity. As required by Federal Rule of Civil Procedure 23(e), the Court held a fairness hearing on the record on November 6, 2007. Counsel for all parties appeared at the hearing. No objectors appeared at the hearing, despite being advised of their opportunity to do so via the notice campaign.

II. LEGAL STANDARD

A class may be certified for settlement purposes only, and such "settlement-only" classes have become increasingly prominent. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 618 (1997). Settlement-only class certification nevertheless obligates a Court to consider whether the proposed class meets the requirements of Federal Rule of Civil Procedure 23, although the Court need not determine whether the case, if tried, would present management problems. Id. at 620; Thomas v. Albright, 139 F.3d 227, 234 (D.C. Cir. 1998). As proponents of class certification, Plaintiffs have the burden ofestablishing that each of the elements of Rule 23(a) are met and that the class is maintainable pursuant to one of Rule 23(b)'s subdivisions. Amchem, 521 U.S. at 614; Fed. R. Civ. P. 23; Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). The four prerequisites to a class action lawsuit under Rule 23(a) are: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims and defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a). These four requirements are referred to as numerosity, commonality, typicality, and adequacy of representation. In addition, Plaintiffs must demonstrate that the class is maintainable under Rule 23(b). In the instant case, Plaintiffs seek certification under Rule 23(b)(3) and, as such, must show that "questions of law or fact common to the members of the class predominate over any questions only affecting individual members, and that class action is superior to other methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). These requirements are referred to as predominance and superiority.

Approval of a proposed class action settlement lies within the discretion of the District Court. In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 103 (D.D.C. 2004) ("Vitamins II") (citing United States v. District of Columbia, 933 F. Supp. 42, 47 (D.D.C. 1996)). Pursuant to Federal Rule of Civil Procedure 23(e), "[t]he court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal or compromise is fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(1)(C). In considering whether to approve a proposed class action settlement, the Court must strike a balance between a rubber stamp approval and "the detailed and thorough investigation that it would undertake if it were actually trying the case." United States v. District of Columbia, 933 F. Supp. at 47. Furthermore, there is a long-standing judicial attitude favoring class action settlements, and the Court's "discretion is constrained ...


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