IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 : 

In re: WELLBUTRIN SR : CIVIL ACTION NO. 04-5525 

ANTITRUST LITIGATION : 

 

CLASS COUNSEL’S MOTION FOR 

ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES, 

AND CLASS REPRESENTATIVE AWARDS

 Based upon the facts and authority in their accompanying Memorandum of Law, 

Lead Class Counsel,1

 along with the other counsel representing the class (collectively “Class 

Counsel”), respectfully move this Court under Rules 23(h) and 54(d)(2) of the Federal Rules of 

Civil Procedure for: 

• an award of attorneys’ fees in the amount of one-third (331⁄3%) of the $49 million 

settlement fund and accrued interest; 

• reimbursement of the $1,610,516.02 in expenses that they advanced on behalf of 

Plaintiffs2

 and the class; and 

• awards of $25,000 each for named Plaintiffs SAJ and Meijer for their efforts on 

behalf of the class. 

 1

 By Memorandum and Order of May 2, 2008 (Doc. 158), Judge Kauffman appointed 

Dianne M. Nast, Esquire and Roda Nast, P.C. as Lead Class Counsel for the direct purchaser 

class (at p.26). 

2

 “Plaintiffs,” as used herein, refers to (1) SAJ Distributors, Inc. and Stephen L. LaFrance 

Holdings, Inc. (together, “SAJ”) and (2) Meijer, Inc. and Meijer Distribution, Inc. (together, 

“Meijer”). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 1 of 40
2 

Dated: October 14, 2011 Respectfully submitted, 

/s/ Joseph F. Roda 

Joseph F. Roda 

/s/ Dianne M. Nast 

Dianne M. Nast 

Jennifer S. Snyder 

RODANAST, PC 

801 Estelle Drive 

Lancaster, Pennsylvania 17601 

(717) 892-3000 

Lead Counsel for Direct Purchaser 

Class Plaintiffs 

Michael L. Roberts 

ROBERTS LAW FIRM, PA 

P.O. Box 241790 

20 Rahling Circle 

Little Rock, Arkansas 72223 

(501) 821-5575 

Arnold Levin 

Fredrick S. Longer 

LEVIN, FISHBEIN, SEDRAN & BERMAN 

510 Walnut Street, Suite 500 

Philadelphia, Pennsylvania 19106 

(215) 592-1500 

J. Douglas Richards 

COHEN MILSTEIN SELLERS & TOLL PLLC

88 Pine Street 

14th Floor 

New York, NY 10005 

(212) 838-7797 

Paul E. Slater 

SPERLING & SLATER, PC 

55 W. Monroe Street, Suite 3300 

Chicago, Illinois 60603 

(312) 641-3200 

Daniel E. Gustafson 

Karla M. Gluek 

GUSTAFSON GLUEK PLLC 

650 Northstar East, 

608 2nd Avenue S. 

Minneapolis, MN 55402 

(612) 333-8844 

Linda P. Nussbaum 

Shelly Friedland 

John D. Radice 

GRANT & EISENHOFER P.A. 

485 Lexington Avenue 

New York, NY 10017 

(646) 722-8500 

Daniel Berger 

Eric L. Cramer 

BERGER & MONTAGUE, P.C. 

1622 Locust Street 

Philadelphia, Pennsylvania 19103 

(215) 875-3026 

Joseph M. Vanek 

VANEK, VICKERS, & MASINI P.C. 

111 S. Wacker, Suite 4050 

Chicago, Illinois 60606 

(312) 224-1500 

Co-Counsel for Direct Purchaser Class Plaintiffs 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 2 of 40
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 : 

In re: WELLBUTRIN SR : CIVIL ACTION NO. 04-5525 

ANTITRUST LITIGATION : 

 

MEMORANDUM OF LAW IN SUPPORT OF 

CLASS COUNSEL’S MOTION FOR 

ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES, 

AND CLASS REPRESENTATIVE AWARDS

INTRODUCTION

 Lead Class Counsel,1

 along with the other counsel representing the class (collectively 

“Class Counsel”), respectfully submit this memorandum in support of their request under Rules 

23(h) and 54(d)(2) of the Federal Rules of Civil Procedure for an award of attorneys’ fees and 

reimbursement of expenses from the settlement that they have achieved for Plaintiffs2

 and the 

direct purchaser class.3

 In addition, Class Counsel seek awards to Plaintiffs SAJ and Meijer in 

recognition of their investment of time and resources in representing the class, without which 

this settlement would not have occurred. 

 1

 By Memorandum and Order of May 2, 2008 (Doc. 158), Judge Kauffman appointed 

Dianne M. Nast, Esquire and Roda Nast, P.C. as Lead Class Counsel for the direct purchaser 

class (at p.26). 

2

 “Plaintiffs,” as used herein, refers to (1) SAJ Distributors, Inc. and Stephen L. 

LaFrance Holdings, Inc. (together, “SAJ”) and (2) Meijer, Inc. and Meijer Distribution, Inc. 

(together, “Meijer”). 

3

 By Memorandum and Order of May 2, 2008 (Doc. 258), Judge Kauffman certified the 

following class: “all persons or entities in the United States, excluding governmental entities, 

that purchased the 100mg or 150mg dosage of Wellbutrin SR directly from GSK during the 

period from January 24, 2002 to June 30, 2006.” 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 3 of 40
2

 As detailed below, Class Counsel request a fee calculated under the appropriate method, 

the percentage-of-the-fund method, and in a percentage that falls directly on the median for class 

action settlements, one-third (331⁄3%) of the $49 million settlement fund and accrued interest. 

The percentage fee requested is justified by the complexity of this case, the time that Class 

Counsel have devoted to it—while shouldering all of the attendant risks—for over seven years 

(including pre-filing investigation), the excellent result that Class Counsel obtained, and all other 

factors that the Third Circuit has established for determining the reasonableness of a fee award. 

One of those factors, the lodestar “cross-check,” underscores the reasonableness of Class 

Counsel’s request: Class Counsel’s lodestar, whether calculated in accordance with accepted 

practice at current rates ($19,616,951) or even at historic rates ($16,530,110), exceeds the 

percentage fee requested ($16,333,333). 

 This is a class action pharmaceutical antitrust case, a difficult and highly specialized area 

of law. Class Counsel practice primarily on a contingency basis, and not every case is 

successful. An award of attorneys’ fees based on a fair percentage of the settlement fund is 

necessary to promote enforcement of the nation’s antitrust laws, as well as to compensate Class 

Counsel for the risk taken and the reward obtained for the class. 

 Class Counsel also request reimbursement of $1.3 million in out-of-pocket expenses 

advanced on behalf of the class, as well as awards of $25,000 each to Plaintiffs SAJ and Meijer, 

whose participation in this case enabled the $49 million recovery on behalf of the class to occur. 

I. THIS WAS A DIFFICULT AND COMPLEX CASE THAT HAD TO BE 

DEVELOPED VIRTUALLY FROM SCRATCH. 

 As this Court can attest from presiding over the case and the many motions that the Court 

considered, this case involved novel and complicated questions of law, as well as challenging 

issues of proof, all of which made this case particularly difficult. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 4 of 40
3

 By contrast with straight-forward horizontal price-fixing litigation, which frequently is 

pursued on the heels of federal antitrust indictments and guilty pleas, there was no governmental 

investigation or federal indictment concerning Wellbutrin SR. This case, by contrast with those 

alleging conspiracies, focused on unilateral action by Defendant SmithKline Beecham 

Corporation d/b/a GlaxoSmithKline (“GSK”). It also involved liability theories based on 

allegations that GSK both defrauded the U.S. Patent and Trademark Office and filed sham 

lawsuits against its competitors, which presented far more difficult legal issues than those in a 

classic price-fixing case. 

 Yet despite these obstacles, Class Counsel have obtained a settlement for the class of $49 

million in cash, plus the payment by GSK of up to $500,000 for the costs of providing notice of 

the settlement to the class and administering the settlement. This settlement represents a 

recovery of between 5.8% and 10.7% of Plaintiffs’ estimated damages, well within the range of 

recovery that other courts have found to be fair, reasonable, and adequate. See Plaintiffs’ Motion 

for Final Approval of Direct Purchaser Class Settlement and supporting materials. 

From the outset, the case had substantial risk, more than in many other antitrust cases.4

 

This risk came from factors including: 

• the difficulties incident to initiating an antitrust case that did not follow upon a 

governmental action. As noted above, many private antitrust cases arise after a 

federal investigation has uncovered wrongdoing and the FTC has filed complaints.5

 

Such was not the case here. 

 4

 The efforts of Class Counsel in achieving this result are summarized below, and are 

submitted based on the record, as well as the undersigned counsel’s personal knowledge of the 

case. 

5

 See, e.g., In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98 (D.C. Cir. 2002) 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 5 of 40
4

• the difficulties of demonstrating—by clear and convincing evidence—that GSK’s 

patent infringement lawsuits not only had no realistic expectation of success (i.e., 

were objectively baseless), but were also filed with the subjective intent of interfering 

with GSK’s competition in the market for Wellbutrin SR. See Prof’l Real Estate 

Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993) (“PRE”) 

(setting forth the standard for proving sham litigation). 

• the implications—for purposes of Plaintiffs’ sham litigation claims—of the record in 

GSK’s underlying patent infringement lawsuit against Eon, Glaxo Wellcome Inc. v. 

EON Labs. Mfg., Inc., No. 1:00-cv-09089-LMM (S.D.N.Y), in which Judge 

McKenna: 

o denied Eon’s motion for summary judgment on non-infringement of 

GSK’s ‘798 patent and affirmed that denial on reconsideration, 

o extended a temporary restraining order (initially granted by Judge Leisure) 

multiple times, 

o granted a preliminary injunction against Eon and denied Eon’s request to 

stay that injunction, and 

o made certain comments on the record, which GSK argued in the present 

case were evidence that its case against Eon was not objectively baseless. 

• The difficulties of proving—also by clear and convincing evidence—that GSK had 

defrauded the Patent Office under the standard of Walker Process Equip., Inc. v. 

 

and FTC v. Mylan Labs., Inc., 62 F. Supp. 2d 25 (D.D.C. 1999) (federal antitrust charges 

regarding Lorazepam and Clorazepate). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 6 of 40
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Food Mach. & Chem. Corp., 382 U.S. 172 (1965)6

—a hurdle that the Court decided, 

on summary judgment, Plaintiffs could not overcome. 

• The possibility of adverse rulings on GSK’s second motion for reconsideration of 

summary judgment, which had been argued, but was undecided at the time the parties 

reached a settlement, and on which a ruling in GSK’s favor would have ended 

Plaintiffs’ case. 

• The risk that the Court might rule against Plaintiffs on the several Daubert motions 

that GSK had filed to preclude the testimony of Plaintiffs’ experts, or on GSK’s 

unresolved motions in limine, or on Plaintiffs’ motions in limine—a risk that was 

significant, given that, by the time of settlement, the Court had ruled against Plaintiffs 

on four of the pretrial motions that Plaintiffs had filed. 

• The risk that the Court might grant GSK’s motion to try the market phase of the case 

first, which would have forced Plaintiffs to present their case, in effect, backwards, 

and in a way that would have prevented the jury’s hearing the full story of the case in 

a single trial, in the most comprehensible way. 

• The difficulties of proof that Plaintiffs faced based on the fact that many—if not 

most—of the documents perhaps most relevant to establishing their claims were 

withheld by GSK on its claims that the documents were protected by the attorneyclient privilege and/or work product doctrine. 

 6

 To establish fraud on the PTO (i.e., “Walker Process fraud”), a plaintiff must 

demonstrate, by clear and convincing evidence: (1) the misrepresentation or omission of a 

material fact; (2) the intent to deceive or at least a state of mind so reckless as to the 

consequences that it is the equivalent of intent; (3) reliance on the misrepresentation; and 

(4) injury. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 375 F.3d 1341, 1358 (Fed. Cir. 

2004), rev’d on other grounds, 546 U.S. 394 (2006). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 7 of 40
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 In fighting to overcome these risks, Class Counsel devoted more than 41,000 hours, over 

more than seven years (including pre-filing investigation), with some Class Counsel working on 

the case for significant periods to the exclusion of everything else.7 In addition to this 

investment of time, Class Counsel also invested more than $1.3 million in out-of-pocket 

expenses, with no guarantee of return, to retain leading experts in chemistry, FDA regulations, 

economics, and patents, as well as to cover other reasonable and necessary litigation expenses 

(such as for court reporting, videography, photocopying, teleconferencing, travel, and 

computerized legal research).8 

A. Detailed History of the Case 

 Plaintiff SAJ filed the first complaint in this case on November 30, 2004 (Doc. 1), 

followed by the complaint of Plaintiff Meijer. The case was initially assigned to the Honorable 

Bruce R. Kauffman, who presided over it until retiring from the bench in July 2009. 

 Before filing their complaints, Class Counsel did an extensive investigation of the two 

GSK patents at issue (the ‘798 and ‘994 patents) and GSK’s patent infringement cases against 

the five manufacturers who sought to market generic versions of Wellbutrin SR (Eon, Impax, 

Watson, Andrx, and Excel). 

 SAJ moved early on, in December 2004, to certify the direct purchaser class (Doc. 8), but 

that motion was put on hold in early 2005, to address other matters in the case, including the 

 

7

 Individual declarations of each Class Counsel firm that substantially participated in this 

litigation are submitted, as Exhibits 1 through 10, in support of Class Counsel’s request for fees 

and reimbursement of expenses. Each declaration attests to that individual firm’s common 

benefit time and expenses. 

8

 See Exhibits 1 through 10. Class Counsel have limited their request for reimbursement 

of expenses to $1.3 million, in accordance with the notice provided to the class. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 8 of 40
7

provisions for a master (consolidated, amended) complaint and a protective order for discovery 

(see Docs. 15, 16, 18, 20). 

 Three months later, in March 2005, GSK moved to dismiss the case (Doc. 23). Plaintiffs 

opposed GSK’s motion (Doc. 25), GSK replied (Doc. 26), the Court held oral argument (see 

Docs. 31, 34), and in March 2006, the Court denied GSK’s motion to dismiss Plaintiffs’ sham 

litigation claim, but granted GSK’s motion to dismiss Plaintiffs’ Walker Process claim, without 

prejudice to Plaintiffs’ filing an amended complaint for the latter claim (Doc. 36). 

 As a harbinger of things to come, GSK did not readily accept the Court’s denial of its 

motion to dismiss the sham litigation claim. It sought certification of the Court’s order for 

interlocutory appeal (Doc. 38), which Plaintiffs opposed (Doc. 44). Plaintiffs also filed a master 

complaint, amending and re-pleading the Walker Process allegations (Doc. 42). In May 2006, 

the Court denied GSK’s motion to certify for interlocutory appeal (Doc. 48), and GSK then 

answered the master complaint (Doc. 49). 

 In mid-2006, Plaintiffs returned to class certification, filing a supplemental brief in 

support of their earlier motion (Doc. 58)—which GSK opposed (Doc. 74)—and then a reply 

brief (Doc. 77). Plaintiffs prevailed on this: after additional supplemental briefing by both 

parties (see Docs. 132-34, 142, 145, 157), the Court certified the direct purchaser class in May 

2008 and appointed Lead Class Counsel (Doc. 158). Plaintiffs then moved to give notice of class 

certification to members of the direct purchaser class, the Court approved the forms and manner 

of notice, and Plaintiffs gave notice to class members in the summer of 2008 (see Docs 160-62, 

189). 

 While Plaintiffs’ motion for class certification was briefed and pending, the parties 

actively engaged in discovery. In the summer of 2006, Class Counsel worked with Plaintiffs 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 9 of 40
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SAJ and Meijer to obtain documents responsive to GSK’s discovery requests, and, in autumn 

2006, corporate representatives of Plaintiffs (assisted by Class Counsel) prepared for and gave 

depositions. 

 The parties each also served and responded to interrogatories, which on Plaintiffs’ side 

required the participation and assistance of Plaintiffs SAJ and Meijer. 

 In 2006 and 2007, Plaintiffs sought document discovery from GSK, and over the course 

of the case, Plaintiffs ultimately obtained, analyzed, and catalogued for future use in the case 

more than one million pages of documents, including complex patent documents and scientific 

materials. 

 Between January 2007 and May 2008, Class Counsel prepared for and took the 

depositions of twenty-three GSK fact and 30(b)(6) witnesses, and, in September and October 

2008, prepared for and took the depositions of GSK’s six expert witnesses. Class Counsel 

likewise prepared for and defended the depositions of its six expert witnesses, one of whom 

(Plaintiffs’ expert economist) was deposed multiple times, as well as certain experts for the 

indirect purchaser plaintiffs, who were cross-designated in the direct purchasers’ case. 

 In addition, the parties engaged in discovery of the third party manufacturers that sought 

to market generic versions of Wellbutrin SR. The third parties opposed this discovery at varying 

levels, with Plaintiffs being forced to pursue discovery as to one third party (Eon’s successor, 

Sandoz) in the District of New Jersey, given the limited power to subpoena that entity in this 

jurisdiction. 

 The parties also engaged in extensive motion practice on discovery, much of which 

centered on GSK’s claims that thousands of relevant documents were protected from discovery 

under the attorney-client privilege and/or work product doctrine (see, e.g., Docs. 79-81, 88-93, 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 10 of 40
9

96-97, 99-100, 107-08, 112, 115-16, 120). These motions were necessarily preceded by meetand-confer sessions, during which the parties debated their respective positions. 

 The Court referred the parties’ discovery motions to Magistrate Judge Hart (Doc. 98), 

who held oral argument on several of the early motions on July 24, 2007 (Doc. 113), and then, 

after supplemental briefing by the parties and in camera review of certain GSK documents (see 

Docs. 136, 140-41, 143), granted some motions in favor of Plaintiffs and some in favor of GSK 

(see Docs. 121, 144). Plaintiffs then filed, and the parties briefed, several additional discovery 

motions (see Docs. 147-48, 150, 153-54, 163-64, 169, 171, 177, 179, 180, 182-83, 185), which 

Judge Hart denied in April (Doc. 156) and September (Doc. 184) of 2008. 

 In October 2008, GSK filed its initial motions for summary judgment, one on “all claims” 

(Doc. 195) and one on just the ‘994 patent (i.e., the Walker Process claim) (Doc. 197). Plaintiffs 

opposed both motions (see Docs. 206-07) and GSK filed reply memoranda (Docs. 218-19). 

While the motions were pending, Judge Kauffman retired from the bench in the second half of 

2009, and the case, along with its nearly five years of history, was reassigned to the Honorable 

Lawrence F. Stengel (Doc. 232). 

 After an initial conference with the parties in late 2009 (see Docs. 233, 238), the Court 

ruled on GSK’s summary judgment motions, denying the motion on “all claims” (Doc. 248), but 

granting the motion on the ‘994 patent / Walker Process claim (Doc. 247). In response, GSK 

filed both a motion for reconsideration of the Court’s order denying its motion for summary 

judgment on “all claims” (and, alternatively, for certification for interlocutory appeal) (Doc. 251) 

and a renewed motion for summary judgment on “all claims” (Doc. 252), both of which 

Plaintiffs opposed (Docs. 254, 258). After additional briefing by both parties (see Docs. 259, 

260, 262-264), the Court denied both of GSK’s motions (Docs. 267-70, 273). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 11 of 40
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 The parties then filed opposing briefs on scheduling the balance of the case (see Docs. 

274, 277, 278, 280), with Plaintiffs seeking an aggressive schedule towards trial. After a status 

conference (see Docs. 282-83, 286), the Court set a schedule in January 2011 for the remainder 

of the case, with trial to begin on June 27, 2011 and numerous filing deadlines before then (Doc. 

289). 

 Over roughly the next two months, the parties collectively filed and briefed twenty pretrial motions, including Daubert motions, motions in limine, and a motion (by GSK) to bifurcate 

the trial by trying the market phase first (Docs. 290-91, 295, 299, 302-09, 311-20, 327-53, 356-

63). In addition to these motions, Plaintiffs had previously filed a motion in limine regarding 

certain evidence concerning generic manufacturer Eon (Doc. 165) and a motion seeking to 

preclude GSK from making certain references to counsel (Doc. 181), the latter of which the 

Court denied without prejudice to Plaintiffs’ refiling it later (Doc. 240), which Plaintiffs did in 

February 2011 (Doc. 303). GSK had also earlier filed, and Plaintiffs had opposed, a Daubert 

motion seeking to preclude certain testimony of two of Plaintiffs’ experts (see Docs. 199, 205, 

220, 223, 225, 234, 235-237, 243), which the Court granted in part and denied in part (Doc. 249). 

These pretrial motions—like the summary judgment motions—involved complex legal issues 

pertaining to antitrust law, various patent law doctrines, difficult evidentiary matters, and sham 

litigation. 

 While the parties pursued their pretrial motions, in February 2011, GSK moved for leave 

to file another motion for reconsideration of the Court’s order denying GSK’s motion for 

summary judgment on “all claims” (Doc. 310), which was followed by extensive briefing by 

both parties (see Docs. 326, 354-55, 364-65, 374). 

It was at this time that the prospect of a settlement began to mount. With the Court’s 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 12 of 40
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encouragement, the parties explored the possibility of settlement in a private, day-long mediation 

session on April 1, 2011 with Boston University Law School Professor Eric D. Green, a wellrecognized and accomplished mediator. See In re Am. Investors Life Ins. Co. Annuity Mktg. & 

Sales Practices Litig., 263 F.R.D. 226, 230 (E.D. Pa. 2009) (McLaughlin, J.) (acknowledging 

Professor Green’s experience). That session, however, ended with the parties far apart, and 

preparation for trial continued. 

 On May 2, 2011, the Court heard oral argument on some of the parties’ pending motions 

(see Doc. 370, 393) and thereafter granted GSK leave to move (for a second time) for 

reconsideration of its order denying summary judgment on “all claims” (Doc. 375). GSK so 

moved, and the parties fully briefed the issues (Docs. 380, 391-92). 

 About the same time, the parties also prepared and filed their respective pretrial 

memoranda, responses to legal issues raised by the opposing party, proposed jury instructions, 

proposed verdict slips, and proposed voir dire (Docs. 376-79, 381-87), engaged in meet-andconfer sessions on issues such as the admissibility of exhibits and stipulations, and exchanged 

deposition designations and counter-designations. 

 Due to the number of pretrial motions at issue, and GSK’s motion for reconsideration of 

summary judgment, the Court held a follow-up hearing on May 25, 2011, to hear additional oral 

argument on issues to be decided before trial. During that hearing, the parties agreed, at the 

Court’s urging, to return to private mediation. 

 On June 7, 2011, the parties returned to mediation before Professor Green, and at this 

session reached a settlement, which was memorialized that day in a memorandum of principle, 

and then in the Settlement Agreement that was executed on August 3, 2011, filed with the Court 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 13 of 40
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on August 17, 2011 (Doc. 405), and preliminarily approved on August 31, 2011 (Doc. 407) after 

a hearing (see Doc. 406). 

 Since then, Class Counsel have continued to work on claims issues, prepare the materials 

necessary for consideration of final approval, coordinate with the Claims Administrator, and 

respond to class members’ inquiries. 

II. CLASS COUNSEL ARE ENTITLED TO COMPENSATION BASED ON 

THE BENEFITS CREATED BY THE LITIGATION. 

 Under well-established law, Class Counsel are entitled to compensation based upon the 

benefits that their efforts over more than seven years have created for the class. Under equally 

well-established law, the compensation that Class Counsel request is reasonable and should be 

awarded. 

A. Class Counsel Have Created a Common Fund From Which Class 

Counsel Should Be Compensated. 

 For more than a century, the Supreme Court has “recognized consistently that a litigant or 

a lawyer who recovers a common fund for the benefit of persons other than himself or his client 

is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 

444 U.S. 472, 478 (1980). See also Boone v. City of Philadelphia, 668 F. Supp. 2d 693, 713 

(E.D. Pa. 2009) (McLaughlin, J.) (citing Boeing, 444 U.S. at 478); In re Ikon Office Solutions, 

Inc. Sec. Litig., 194 F.R.D. 166, 192 (E.D. Pa. 2000) (Katz, J.) (“[T]here is no doubt that 

attorneys may properly be given a portion of the Settlement Fund in recognition of the benefit 

they have bestowed on class members.”). 

 The common fund doctrine is based upon the inherent equitable powers of the federal 

courts to “prevent . . . inequity by assessing attorney’s fees against the entire fund, thus spreading 

fees proportionately among those benefited by the suit.” Boeing, 444 U.S. at 478. In contrast to 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 14 of 40
13

a case in which fees are assessed pursuant to a statute, fees in a common fund case “are not 

assessed against the unsuccessful litigant (fee shifting), but rather are taken from the fund or 

damage recovery (fee spreading), thereby avoiding the unjust enrichment of those who otherwise 

would be benefited by the fund without sharing in the expenses incurred by the successful 

litigant.” Flickering v. C.I. Planning Corp., 646 F. Supp. 622, 632 (E.D. Pa. 1986) (Shapiro, J.). 

 Class Counsel have created such a common fund in this case for the direct purchaser 

class in the amount of $49 million, are thus entitled to compensation from that fund, and have 

asked for compensation consistent with the approved approach in this Circuit for determining 

that compensation. 

B. Courts in the Third Circuit Apply the “Percentage-of-the-Fund” 

Method for Calculating Attorneys’ Fees in Common Fund Cases. 

 The Third Circuit favors the percentage-of-recovery method of calculating fee awards in 

common fund cases. In re AT&T Corp., 455 F.3d 160, 164 (3d Cir. 2006); In re Rite Aid Corp. 

Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005). This is because it allows courts to award fees in a 

way that rewards success and penalizes failure. Rite Aid, 396 F.3d at 300 (citing In re Prudential 

Ins. Co. of America Sales Practices Litig., 148 F.3d 283, 333 (3d Cir. 1998)).9

 

 9

 The alternative method of awarding attorneys’ fees, the lodestar method (which is used 

here as a “cross-check” and is described in greater detail below), “is more commonly applied in 

statutory fee-shifting cases, and is designed to reward counsel for undertaking socially beneficial 

litigation in cases where the expected relief has a small enough monetary value that a 

percentage-of-recovery method would provide inadequate compensation.” Prudential, 148 at 

333. 

 For a history of the Third Circuit’s approach to awarding attorneys’ fees, including a 

discussion of the Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 

F.R.D. 237 (1985) (“1985 Task Force Report”) and the transition to the prevailing view that the 

percentage-of-the-fund method is preferred in common fund cases, see In re Cendant Corp. 

Litig., 264 F.3d 201, 255-57 (3d Cir. 2001). As noted in Rite Aid, 396 F.3d at 306 n.16, a second 

Task Force was convened and issued a follow-up report in 2002. That report likewise endorsed 

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 “Under the percentage-of-recovery approach, a court charged with determining whether a 

particular fee is ‘reasonable’ first calculates the percentage of the total recovery that the proposal 

would allocate to attorneys fees by dividing the amount of the requested fee by the total amount 

paid out by the defendant; it then inquires whether that percentage is appropriate based on the 

circumstances of the case.” Cendant, 264 F.3d at 256. 

 Some courts within this jurisdiction have awarded attorneys’ fees from the gross amount 

of the settlement fund. See, e.g., In re Methyl Methacrylate (MMA) Antitrust Litig., 06-MD1768, 2009 WL 3150399, at *2 (E.D. Pa. Sept. 23, 2009) (Savage, J.) (awarding fees of 

$4,545,000, representing 30% of the gross settlement fund of $15,150,000); In re Auto. 

Refinishing Paint Antitrust Litig., MDL No. 1426, 2008 WL 63269, at *3, 8 (E.D. Pa. Jan. 3, 

2008) (Surrick, J.) (awarding fees of $13 million, representing 331⁄3% of the $39 million 

settlement fund). As noted below (see pp.28-29, infra), courts in other jurisdictions have 

routinely awarded fees from the gross settlement fund in other pharmaceutical antitrust class 

actions similar to this one. 

Other courts, by contrast, have awarded fees against the net settlement fund, after the 

deduction of litigation costs (including taxes). See, e.g., Bradburn Parent Teacher Store, Inc. v. 

3M (Minnesota Mining & Mfg. Co.), 513 F. Supp. 2d 322, 337 (E.D. Pa. 2007) (Padova, J.); In re 

In re Aetna Inc., Civ. A. MDL 1219, 2001 WL 20928, at *14 (E.D. Pa. Jan. 4, 2001) (Padova, 

J.). Courts favoring the latter approach have reasoned that it gives counsel the incentive to be 

efficient and keep costs to a minimum, and thereby reduces the burden on the court of evaluating 

the reasonableness of the costs incurred. See Lachance v. Harrington, 965 F. Supp. 630, 647-48 

 

use of the percentage-of-the-fund method in common fund cases. See Report of the Third Circuit 

Task Force, Selection of Class Counsel, 208 F.R.D. 340, 421-24 (2002). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 16 of 40
15

(E.D. Pa. 1997) (Yohn, J.) (acknowledging that “most courts seem to apply the POR 

[percentage-of-recovery] methodology to the gross settlement fund,” but nonetheless electing to 

use the net approach for the policy reasons stated above). 

 The Third Circuit has not yet addressed which approach should be followed. Fanning v. 

Acromed Corp., No. 1014, 2000 WL 1622741, at *5 & *5 n.13 (E.D. Pa. Oct. 23, 2000) 

(Bechtle, J.) (awarding fees based on the gross settlement fund). 

 Class Counsel respectfully request that fees in this case be calculated on the gross 

settlement fund. The costs for which Class Counsel seek reimbursement are at a very reasonable 

level, especially given the number of years throughout which this case was litigated. Indeed, as 

discussed below, the costs requested in this case are comparable to or less than costs in other 

antitrust cases that were resolved in far fewer years. 

 In addition to being the preferred method of determining fees in common fund cases, 

generally, the percentage-of-the-fund method has also been used consistently in pharmaceutical 

antitrust class action settlements in the Third Circuit and elsewhere. See, e.g.: 

• Stop & Shop Supermarket Co. v. SmithKline Beecham Corp., Civ. A. 03-4578, 

2005 WL 1213926, at *8 (E.D. Pa. May 19, 2005) (Padova, J.) (direct purchaser 

case involving the drug Paxil and its generic equivalents, holding that the court 

would use the percentage of recovery method for assessing the attorneys’ fees 

request, recognizing that it is the method generally favored in common fund 

cases); 

• Nichols v. SmithKline Beecham Corp., Civ. A. 00-6222, 2005 WL 950616, at *20 

(E.D. Pa. Apr. 22, 2005) (Padova, J.) (indirect purchaser Paxil case reaching the 

same conclusion as Stop & Shop); 

• In re Remeron Direct Purchaser Antitrust Litig., Civ. 03-0085 FSH, 2005 WL 

3008808, at *12 (D.N.J. Nov. 9, 2005) (Hochberg, J.) (direct purchaser action 

concluding that “the percentage of fund method is the proper method for 

compensating Plaintiffs’ Counsel in this common fund case”); 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 17 of 40
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• In re Remeron End-Payor Antitrust Litig., Civ. 02-2007 FSH, 2005 WL 2230314, 

at *26 (D.N.J. Sept. 13, 2005) (Hochberg, J.) (indirect purchaser action reaching 

the same conclusion as in the related direct purchaser Remeron litigation); 

• In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 261 (D. Del. 2002) 

(Robinson, C.J.) (“In determining the fee award in a common-fund class action, 

the Third Circuit follows the percentage-of-the-recovery method.”); 

• In re Relafen Antitrust Litig., 231 F.R.D. 52, 79 (D. Mass. 2005) (“[T]his Court 

rules that the percentage of fund method is appropriate in these circumstances.”); 

• In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 531 (E.D. Mich. 2003) 

(“[T]he percentage-of-the-fund method is the proper method for compensating 

Plaintiffs’ Counsel[.]”); and 

• In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 383 (D.D.C. 

2002) (applying the percentage-of-the fund method and noting that the D.C. 

Circuit has joined other circuits in concluding that that the percentage method is 

the appropriate one to use in common fund cases). 

C. The Percentage That Class Counsel Request Is Fair and Reasonable. 

 The Third Circuit has historically instructed courts to consider the following seven 

“Gunter” factors when evaluating the reasonableness of a fee request under the percentage-ofrecovery method: 

(1) the size of the fund created and the number of persons 

benefitted; (2) the presence or absence of substantial objections by 

members of the class to the settlement terms and/or fees requested 

by counsel; (3) the skill and efficiency of the attorneys involved; 

(4) the complexity and duration of the litigation; (5) the risk of 

nonpayment; (6) the amount of time devoted to the case by 

plaintiffs’ counsel; and (7) the awards in similar cases. 

Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000). Because each case is 

different, and the relevance of these factors may vary with context, the factors “need not be 

applied in a formulaic way.” Id. See also Rite Aid, 396 F.3d at 303 (“We have generally 

cautioned against overly formulaic approaches in assessing and determining the amounts and 

reasonableness of attorneys’ fees.”). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 18 of 40
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Thus, even if one factor disfavors a requested fee award, other factors may outweigh that 

one. See, e.g., Meijer, Inc. v. 3M, Civ.A. 04-5871, 2006 WL 2382718, at *22 (E.D. Pa. Aug. 14, 

2006) (Padova, J.) (holding that although the time devoted to the litigation was relatively low as 

a result of the case settling after roughly one year, this was outweighed by more important 

Gunter considerations). 

 More recently, and because the Gunter factors are neither universally relevant nor 

exhaustive in all cases, the Third Circuit has suggested that it also may be important to consider 

the following factors from its decision in Prudential (as well as such other factors that a 

particular case may warrant): 

(1) the value of benefits accruing to class members attributable to 

the efforts of class counsel as opposed to the efforts of other 

groups, such as government agencies conducting investigations, 

Prudential, 148 F.3d at 338; (2) the percentage fee that would have 

been negotiated had the case been subject to a private contingent 

fee agreement at the time counsel was retained, id. at 340; and (3) 

any “innovative” terms of settlement, id. at 339. 

AT&T Corp., 455 F.3d at 165-66 (“In reviewing an attorneys’ fees award in a class action 

settlement, a district court should consider the Gunter factors, the Prudential factors, and any 

other factors that are useful and relevant with respect to the particular facts of the case.”). 

 District courts have substantial discretion in awarding fees, and their awards will not be 

overturned absent an abuse of that discretion (such as a failure to follow the proper legal standard 

or procedures, or basing an award on clearly erroneous facts, or failing to explain the rationale 

underlying its decision). Rite Aid, 396 F.3d at 299.10 

 10 The proposed order submitted herewith addresses both this motion and Plaintiffs’ 

Motion for Final Approval of Direct Purchaser Class Settlement. A combined order has been 

submitted both for efficiency (as the motions and relevant legal standards involve overlapping 

issues) and consistent with the Settlement Agreement (previously submitted as Exhibit 1 to 

Plaintiffs’ Motion for Preliminary Approval of Direct Purchaser Class Settlement), which 

requires (at ¶ 4) that Plaintiffs seek “an” order and final judgment containing certain terms, some 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 19 of 40
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In this case, the pertinent Gunter and Prudential factors support the fee requested. 

The Gunter Factors

1. The complexity and duration of the litigation. 

 The Third Circuit has said that the fourth Gunter factor—the complexity and duration of 

the litigation—is “the first factor that a district court can and should consider in awarding fees.” 

Gunter, 223 F.3d at 197. See also Am. Investors, 263 F.R.D. at 243. 

 Antitrust cases top the list in terms of complexity. See Bradburn Parent Teacher Store, 

513 F. Supp. 2d at 338-39 (“[A]ntitrust class actions are perhaps the most complex cases to 

litigate.”); In re Linerboard Antitrust Litig., 296 F. Supp. 2d 568, 577 (E.D. Pa. 2003) (DuBois, 

J.) (“An antitrust class action is arguably the most complex action to prosecute.”) (citation 

omitted). See also Auto. Refinishing Paint, 2008 WL 63269, at *5 (observing that most antitrust 

cases are “exceedingly complex, expensive, and lengthy”). This case involved multifaceted 

antitrust, patent, and evidentiary, issues, the complexity of which is demonstrated by the various 

dispositive, discovery, and pretrial motions that were filed in this case. 

 

of which concern final approval and others of which concern attorneys’ fees, reimbursement of 

costs, and awards to the class representative Plaintiffs. 

The proposed order contains detailed findings and case law citations in recognition of the 

requirement that district courts must make findings on each of the relevant factors pertinent to 

these motions. See Rite Aid, 396 F.3d at 301 (“Notwithstanding our deferential standard of 

review of fee determinations, we have required district courts to clearly set forth their reasoning 

for fee awards so that we will have a sufficient basis to review for abuse of discretion.”); In re 

Pet Food Products Liab. Litig., 629 F.3d 333, 350 (3d Cir. 2010) (In considering motions for 

final approval of class action settlements, “district courts must make findings as to each of the 

Girsh factors, and the Prudential factors where appropriate . . . [and] cannot substitute the 

parties’ assurances or conclusory statements for its independent analysis of the settlement 

terms.”). It is not, however, the intention of Plaintiffs or Class Counsel to substitute their 

conclusions for the independent analysis of the Court or to otherwise intrude on the province of 

the Court. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 20 of 40
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 This antitrust case also had “duration.” Class Counsel invested more than seven years 

(including pre-filing investigation) preparing and litigating this case, as detailed above. 

 Its complexity and duration thus weigh in favor of the fee award requested. See Am. 

Investors, 263 F.R.D. at 243 (where a case involved complex RICO allegations, had been 

pending for more than five years, and class counsel had conducted extensive discovery, retained 

experts, and filed and defended several complex motions, this supported counsel’s fee request); 

Boone, 668 F. Supp. 2d at 714 (where class counsel spent four years litigating a difficult case 

involving a complicated issue of constitutional law, this weighed in favor of awarding the 

requested attorneys’ fees); Bradburn Parent Teacher Store, 513 F. Supp. 2d at 339 (where an 

antitrust case was filed more than four years before settlement; involved litigation over class 

certification and collateral estoppel, expert testimony on both class certification and on the 

merits, and numerous depositions; and was ready for trial, this factor weighed in support of the 

fee request); In re Corel Corp. Inc. Sec. Litig., 293 F. Supp. 2d 484, 496 (E.D. Pa. 2003) (Brody, 

J.) (finding this factor supported awarding counsel’s requested fees where the action involved 

complex issues of federal securities laws and was zealously litigated for more than three years, 

involving numerous motions, success in obtaining class certification and defending it on appeal, 

and intensive discovery). 

2. The size of the fund and the number of people benefited. 

 The settlement in this case provides an excellent benefit to the class: an immediate and 

certain payment of $49 million in cash, plus accrued interest, less attorneys’ fees, expenses (to 

the extent not covered by the $500,000 that GSK has agreed to pay towards the costs of 

administering the settlement), and awards to the named Plaintiffs, as may be awarded by the 

Court. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 21 of 40
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 This sizeable settlement, moreover, will be divided among a limited, national class of 

direct purchasers. Their certain recovery compares reasonably to the potential damages that they 

might have recovered at trial, when the risks of trial are taken into account. According to an 

analysis performed by Plaintiffs’ economic expert, Gary French, Ph.D., the $49 million 

settlement recovers between 5.8% and 10.7% of the estimated single damages in this case, 

depending on how many manufacturers of generic Wellbutrin SR would have entered the market 

and when. As discussed in Plaintiffs’ Motion for Final Approval of Direct Purchaser Class 

Settlement and supporting materials, which Plaintiffs incorporate by reference, this settlement is 

well within the range of recovery that other courts have found to be fair, reasonable, and 

adequate. 

3. The presence or absence of objections to terms or fees. 

 To date, there have been no objections to the request for attorneys’ fees.11 The detailed 

notice that was individually mailed to class members, the summary notice that was published 

twice in The Pink Sheet, and the materials available on the website dedicated to this settlement 

(www.WellbutrinDirectPurchaserSettlement.com) all put class members on notice of (1) the 

terms of the settlement, (2) where additional information could be obtained, (3) that Class 

Counsel intended to seek attorneys’ fees of up to one-third of the net settlement fund (as well as 

litigation costs not to exceed $1.3 million and class representative awards of $25,000 each), and 

(4) how to object to any aspect of the settlement, including the attorneys’ fees petition. 

 

11 The postmark deadline to object to the settlement or any of its terms, including the 

petition for attorneys’ fees, is November 4, 2011. Should any objections be received by that 

deadline, Class Counsel will timely respond to those objections by the deadline of November 14, 

2011. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 22 of 40
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 The fact that no class member has objected to the settlement terms or the proposed fee 

request weighs in favor of awarding the requested fees. See In re Sterling Fin. Corp. Sec. Class 

Action, MDL 1879, 2009 WL 2914363, at *2 (E.D. Pa. Sept. 10, 2009) (Stengel, J.) (where there 

where only two objections to the fee request, this factor weighed strongly in favor of approving 

the requested fee award); Boone, 668 F. Supp. 2d at 713 (where there were only three objections 

to the settlement and just one to the proposed attorneys’ fees and costs, this weighed in favor of 

approving the requested fees and costs); Auto. Refinishing Paint, 2008 WL 63269, at *4 (“A lack 

of objections demonstrates that the Class views the settlement as a success and finds the request 

for counsel fees to be reasonable.”); In re Linerboard Antitrust Litig., MDL 1261, 2004 WL 

1221350, at *5 (E.D. Pa. June 2, 2004) (DuBois, J.) (“The absence of objections supports 

approval of the Fee Petition.”). 

 Courts have found a low number of objectors to be particularly telling in cases—such as 

this one—that involve sophisticated class members. See, e.g., Bradburn Parent Teacher Store, 

513 F. Supp. 2d at 338 (“The absence of objections to the requested attorneys’ fees in this case is 

particularly notable given the sophisticated nature of the absent Class Members.”); Linerboard, 

2004 WL 1221350, at *5 (“While in some cases a lack of objections may reflect the absence of 

counsel or unfamiliarity with the legal system, in this case class members are represented by 

counsel . . . [and] include many of the largest corporations in America—entities that are hardly 

unfamiliar with civil litigation.”).12 

 12 Even if objections are made, that does not necessarily mean that the requested fee 

should be reduced in response. Unsubstantiated objections, for example, would not warrant a 

reduction in counsel’s fee request. See Am. Investors, 263 F.R.D. at 244. See also Corel Corp.,

293 F. Supp. 2d at 496 (refusing to “infer too much” from the fact that some class members 

objected). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 23 of 40
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 Here, moreover, not only have there been no objections to date, but the three largest 

pharmaceutical distributors in the country have all submitted letters endorsing not only the 

settlement, but also Class Counsel’s motion for attorneys’ fees, reimbursement of costs, and 

awards to the named Plaintiffs. See Exhibits 3-5 to the Memorandum of Law in Support of 

Plaintiffs’ Motion for Final Approval of Direct Purchaser Class Settlement (letter of October 3, 

2011 from McKesson Corporation, letter of September 27, 2011 from counsel for 

AmerisourceBergen Co., and letter of September 27, 2011 from counsel for Cardinal Health).13 

These letters explain that these three companies will make the largest claims for recovery from 

the settlement in this case, and that each company—having been informed of the facts, 

circumstances, legal hurdles, and other risks involved in this case—supports the proposed 

settlement as “fair and adequate” and agrees that the fees sought by Class Counsel are 

“appropriate” and “justified by the time and expense” spent prosecuting and favorably resolving 

this case. That these class members—whose claims (including those of their subsidiaries) 

collectively represent roughly 78% of the total recovery—have voiced such support is further 

evidence of the reasonableness of Class Counsel’s fee request. 

4. The skill and efficiency of counsel. 

 Class Counsel’s practices emphasize complex antitrust class actions.14 Within that 

already limited field, their firms are part of an even smaller group that practices in the risky area 

of pharmaceutical antitrust class action cases. Their experience in similar litigation reflects Class 

 

13 Although each of these letters is addressed to the Court, the letters were provided to 

Class Counsel for filing and were not separately mailed to the Court. 

14 Class Counsel respectfully refer the Court to the biographies that have been submitted 

with their declarations. See Exhibits 1 through 10. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 24 of 40
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Counsel’s skill and efficiency, as does the result obtained for the class. See Linerboard, 2004 

WL 1221350, at *5 (“The result achieved is the clearest reflection of petitioners’ skill and 

expertise.”). Class Counsel also faced formidable opposition from defense counsel, whose firm 

is recognized as among the foremost in the nation, and who fought this case with tenacity 

throughout. 

 This factor thus also supports Class Counsel’s fee request. See Am. Investors, 263 F.R.D. 

at 244 (where class counsel were highly skilled in litigating class actions against insurance 

companies, the defendants were represented by a leading law firm, and the case was vigorously 

litigated by both sides, this supported class counsel’s fee request); Bradburn Parent Teacher 

Store, 513 F. Supp. 2d at 338 (where class counsel were experienced in complex class litigation 

and obtained a significant settlement for the class, despite the complexity and challenges of the 

case, this supported the fee request); Corel Corp., 293 F. Supp. 2d at 496 (where counsel 

primarily practiced in the field of shareholder securities litigation, had considerable experience, 

and faced formidable legal opposition, this supported awarding the requested fees). 

5. The risk of nonpayment. 

 “A determination of a fair fee must include consideration of the sometimes undesirable 

characteristics of a contingent antitrust action[], including the uncertain nature of the fee, the 

wholly contingent outlay of large out-of-pocket sums by plaintiffs, and the fact that the risk of 

failure and nonpayment in an antitrust case are extremely high.” Remeron Direct Purchaser 

Antitrust Litig., 2005 WL 3008808, at *14. 

 This was an extremely complex case, which involved not only difficult legal issues, but 

also significant costs and the substantial risk of nonpayment. Class Counsel had to be prepared 

to front all of those costs and carry all the risk that there might not be any recovery. The risk 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 25 of 40
24

faced by Class Counsel was multifaceted, as there was risk involved with: (a) building a case 

from the ground up without a solid federal government case for a foundation; (b) defeating 

GSK’s motion to dismiss and pursuit of certification of the Court’s order for interlocutory 

appeal; (c) obtaining class certification; (d) surviving summary judgment—the risk of which is 

evidenced by the fact that GSK prevailed on one of its summary judgment motions, although it 

did not end the case; (e) surviving GSK’s renewed motion for summary judgment and multiple 

motions for reconsideration (the second of which remained pending at the time of settlement); (f) 

defeating GSK’s pretrial motions (including motions in limine, Daubert motions, and a motion to 

bifurcate, all of which—except for two motions that Plaintiffs did not oppose and were thus 

denied as moot—remained pending at the time of settlement); and—if the case had continued—

(g) ultimately proving liability and damages at trial; and (h) surviving any appeals. 

 Enveloping all of these risks was the substantial exposure that Class Counsel faced in 

handling the case on a contingent basis. See Ikon Office Solutions, 194 F.R.D. at 194 (“[T]here 

are inherent, substantial risks entailed in undertaking any contingency fee action.”). Unlike the 

highly skilled counsel representing GSK, Class Counsel get paid only if they win, and if they do 

get paid, it is often only after years of work without payment. As one court recently observed, 

attorneys who undertake the representation of a class are “unable to mitigate any of the risk of 

nonpayment; instead, they [a]re required to spend or incur obligations to effectively litigate th[e] 

case.” Serrano v. Sterling Testing Sys., Inc., 711 F. Supp. 2d 402, 423 (E.D. Pa. 2010) (Pratter, 

J.). This risk was shouldered entirely by Class Counsel; “the Class itself risked nothing out-ofpocket.” Id. 

The substantial risk of nonpayment that Class Counsel faced throughout this litigation 

further supports their fee request. See Am. Investors, 263 F.R.D. at 244 (fee request was 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 26 of 40
25

reasonable in light of this factor where counsel represented the class on a contingency basis in a 

complex case for more than five years and advanced hundreds of thousands of dollars without 

any guarantee of payment); Bradburn Parent Teacher Store, 513 F. Supp. 2d at 339 (where 

counsel took a case involving substantial risks of establishing both liability of damages on a 

wholly contingent basis, this factor weighed in favor of a finding that the requested fee was 

appropriate); Auto. Refinishing Paint, 2008 WL 63269, at *5 (where counsel pursued an antitrust 

case on a contingency basis, without the benefit of prima facie liability having been established 

by the government in a criminal action, the risk of nonpayment was considerable and supported 

approval of the fee request). 

6. The amount of time devoted to the litigation. 

 As noted above, this case required a substantial investment of time. Counsel spent more 

than 41,000 hours over the course of more than seven years, preparing, litigating, and negotiating 

the settlement of this case. 

 Further, Class Counsel’s commitment to this litigation is far from over. Counsel will 

spend substantial additional time preparing for and participating in the final approval hearing, 

and handling claims administration, not to mention handling any appeal if one is brought. Class 

Counsel’s lodestar calculations (discussed below) do not include any amount for this substantial 

future work. See Remeron Direct Purchaser Antitrust Litig., 2005 WL 3008808, at *15 

(observing that class counsel would “likely incur hundreds of additional hours in connection with 

administering the settlement, without the prospect for further fees”). That Class Counsel’s fee 

request covers not only work that has been done to date (excluding time spent on this fee 

petition), but also any such future work, makes the requested fee that much more reasonable. 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 27 of 40
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 While Class Counsel have devoted significant time to this litigation, they staffed this case 

leanly and appropriately. When suitable, Counsel assigned associate attorneys to the case, as 

well as paralegals, who have substantially lower hourly rates than senior shareholders and 

partners. These staffing decisions demonstrate an appropriate allocation of resources. 

The time that Class Counsel have devoted to this litigation thus also supports approval of 

their fee request. See Boone, 668 F. Supp. 2d at 714 (where class counsel spent roughly 2,858 

hours of contingent work on the litigation, this justified their fee request); Bradburn Parent 

Teacher Store, 513 F. Supp. 2d at 339 (where class counsel spent more than four years, including 

more than 9,000 attorney hours and roughly 2,000 paralegal hours, on the case, this weighed in 

favor of awarding the requested fees); Nichols, 2005 WL 950616, at *22 (where class counsel 

had devoted more than 17,000 hours of work to the litigation, this factor weighed in favor of 

awarding the requested fees). 

7. The consistency with fee awards in comparable cases. 

 “A study referenced by another court in this district analyzed 289 class action settlements 

ranging from under $1 million to $50 million and determined that the average attorneys’ fees 

percentage to be 31.71% and the median to be one-third.” Boone, 668 F. Supp. 2d at 714 (citing 

In re Rite Aid Corp. Secs. Litig., 146 F. Supp. 2d 706, 735 (E.D. Pa. 2001) (Dalzell, J.)). See 

also 4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 14:6 (4th ed. 2006) (“In 

the normal range of common fund recoveries in . . . antitrust suits, common fee awards fall in the 

20 to 33 per cent range.”).15 See also Rite Aid, 396 F.3d at 303; Cullen v. Whitman Medical 

 15 This settlement is distinguishable from those that courts have termed “megafund” 

settlements, in which the recovery approaches or exceeds $100 million. See Manual for 

Complex Litigation, Fourth, § 14.121 (2004), at 188-89, available at: 

https://public.resource.org/scribd/8763868.pdf. See also Sterling Fin. Corp., 2009 WL 2914363, 

at *4 (observing that $100 million seems to be the informal marker of a “very large”—i.e., 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 28 of 40
27

Corp., 197 F.R.D. 136, 150 (E.D. Pa. 2000) (Brody, J.) (noting that an “award of one-third of the 

fund for attorneys’ fees is consistent with fee awards in a number of recent decisions within this 

district”). 

 Class Counsel’s fee request is thus well within the accepted range for class action 

settlements, and is lower than awards that have been approved in some cases (see, e.g., 

Bradburn, in the chart below). A sample of recent antitrust cases with settlements in the $15 

million to $75 million range further demonstrates that the requested award of one-third (331⁄3%) 

is within the range of awards approved in other cases within the Third Circuit: 

CASE 

(LISTED IN REVERSE 

CHRONOLOGICAL ORDER) 

SETTLEMENT 

AMOUNT 

FEE AWARD AS 

PERCENTAGE OF 

SETTLEMENT AMOUNT 

MMA, 2009 WL 3150399, at *2 (Savage, J.) 

(approving attorneys’ fees in a direct 

purchaser antitrust action lasting roughly 

three years)

$15.15 million 30% 

 

megafund—settlement). The percentage of the fund that is approved for attorneys’ fees in 

megafund cases is often lower than in non-megafund cases. See, e.g., Am. Investors, 263 F.R.D. 

at 244 (discussing a compilation of fees granted in insurance sales practices cases, which ranged 

from 6.5% to 14.5% of settlement funds ranging from $90.1 million to $1.8 billion). 

 Even in megafund cases, however, the Third Circuit has approved a higher percentage, 

see AT&T Corp., 455 F.3d at 167-70 (affirming award of 21.25% of a settlement fund valued at 

approximately $100 million), as have district courts in this jurisdiction. See Linerboard, 2004 

WL 1221350, at *16-17 (awarding fees of 30% of a roughly $202 million settlement fund and 

declining to reduce the percentage even though the case involved a megafund settlement); Ikon 

Office Solutions, 194 F.R.D. at 196 (approving a fee award of 28.4% of a $111 million 

settlement and refusing to reduce the amount despite that the settlement was in the megafund 

range). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 29 of 40
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Auto. Refinishing Paint, 2008 WL 63269, at 

*3, 6 (Surrick, J.) (awarding attorneys’ fees 

for prosecution of antitrust case for roughly 

three-and-a-half years) 

$39 million 331⁄3% 

Bradburn Parent Teacher Store, 513 F. 

Supp. 2d at 337-38, 341-42 (Padova, J.) 

(awarding attorneys’ fees in antitrust action 

litigated for nearly four years) 

$38.73 million16 35% 

Remeron Direct Purchaser Antitrust Litig., 

2005 WL 3008808, at *12, 17 (Hochberg, J.) 

(awarding attorneys’ fees in a direct 

purchaser pharmaceutical antitrust action, 

which settled after three years of litigation) 

$75 million 331⁄3% 

Nichols, 2005 WL 950616, at *20, 24 

(Padova, J.) (awarding attorneys’ fees an in 

indirect purchaser pharmaceutical antitrust 

action that settled after nearly four-and-ahalf years of litigation) 

$65 million 30% 

 See also In re Tricor Direct Purchaser Antitrust Litig., No. 05-340-SLR (D. Del. Apr. 23, 

2009) (Robinson, J.) (awarding 331⁄3% of $250 million megafund settlement) (attached as Exhibit 

11); In re Gen. Instrument Sec. Litig., 209 F. Supp. 2d 423, 435 (E.D. Pa. 2001) (Reed, J.) 

(approving award of 331⁄3% of a $48 million settlement in a securities class action). 

 Moreover, one-third of the gross settlement fund has frequently been awarded by courts 

in other jurisdictions in similar pharmaceutical antitrust actions, further demonstrating the 

appropriateness of Class Counsel’s fee request. See, e.g.: 

• Meijer, Inc. v. Abbott Labs., No C. 07-5985 CW (N.D. Cal. Aug. 11, 2011) 

(awarding 331⁄3% of $52 million settlement) (attached as Exhibit 12); 

 

16 As noted above, by contrast with the other cases in this chart, the fees in Bradburn

were based on the net settlement fund (i.e., the gross settlement fund of $39,750,000, after 

deduction of expenses of $1,011,375). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 30 of 40
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• In re Nifedipine Antitrust Litig., No. 03-mc-223-RJL (D.D.C. Jan. 31, 

2011) (awarding 331⁄3% of $35 million settlement) (attached as Exhibit 13); 

• In re Oxycontin Antitrust Litig., 04-md-1603-SHS (S.D.N.Y. Jan. 25, 

2011) (awarding 331⁄3% of $16 million settlement) (attached as Exhibit 14); 

• Meijer, Inc. v. Barr Pharm., Inc., C.A. No. 05-2195 (D.D.C. Apr. 20, 2009) 

(awarding 331⁄3% of $22 million settlement) (attached as Exhibit 15); 

• North Shore Hematology-Oncology Assoc., P.C. v. Bristol-Myers Squibb Co., No. 

04-248-EGS (D.D.C. Nov. 30, 2004) (awarding 331⁄3% of $50 million settlement) 

(attached as Exhibit 16); 

• In re Relafen Antitrust Litig., No. 01-12239-WHY at 7-8 (D. Mass. Apr. 9, 

2004) (awarding 331⁄3% of $175 million settlement fund) (attached as Exhibit 17).

The Prudential Factors

8. The value of benefits accruing to class members attributable to 

the efforts of class counsel, as opposed to the efforts of others. 

As discussed above, the development of this case depended entirely on the investigation 

and efforts of Class Counsel and, unlike many antitrust cases, did not follow on the heels of a 

government lawsuit (or even investigation). This factor thus likewise supports Class Counsel’s 

fee request. See AT&T Corp., 455 F.3d at 173 (where class counsel was not aided by the efforts 

of any governmental group, this strengthened the district court’s conclusion that the fee award 

was fair and reasonable). 

9. The percentage fee that would have been privately negotiated. 

 A one-third contingency is standard in individual litigation (and could be even higher in 

antitrust cases, given the complexities and risks involved). See Bradburn Parent Teacher Store, 

513 F. Supp. 2d at 340 (holding that a fee award of 35% of the net settlement fund was 

comparable to the percentage counsel would have negotiated had the case been subject to a 

private contingency fee agreement when counsel was retained); Remeron Direct Purchaser 

Antitrust Litig., 2005 WL 3008808, at *16 (observing that “[a]ttorneys regularly contract for 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 31 of 40
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contingent fees between 30% and 40% with their clients in non-class, commercial litigation” and 

holding, in the context of a direct purchaser pharmaceutical antitrust class action, that the 

“requested 331⁄3% fee reflects the market rate in other litigation of this type”). That the fees 

requested here are comparable to those that Class Counsel could have negotiated in the 

marketplace thus also supports the reasonableness of the fee request. 

10. Innovative settlement terms. 

 Because the terms of this settlement—while providing an excellent benefit to the class— 

are otherwise relatively standard, this final factor neither supports nor detracts from Class 

Counsel’s fee request. See Bradburn Parent Teacher Store, 513 F. Supp. 2d at 340 (where the 

settlement did not contain any particularly innovative terms, this did not adversely affect 

counsel’s fee request). 

D. A Lodestar Cross-Check Confirms the Reasonableness of the Fee 

Request. 

 The Third Circuit has held that it is “sensible” for district courts to perform a lodestar 

cross-check to ensure that application of the percentage method does not result in a recovery that 

is too great. Rite Aid, 396 F. 3d at 305-06. See also Boone, 668 F. Supp. 2d at 713 (Courts in the 

Third Circuit “use the alternative method of fee calculation, the lodestar method, as a crosscheck in order to ensure that the fee amount is reasonable.”). 

 The lodestar is calculated by multiplying the number of hours reasonably worked on a 

case by the reasonable hourly billing rates for those services. See Rite Aid, 396 F. 3d at 305. 

The billing rates to be used in calculating the lodestar should be “blended” ones, of all who 

worked on the case, and not the billing rates of just the most senior attorneys. Id. at 306. Courts 

within this jurisdiction commonly calculate the lodestar using current rates (rather than 

“historical” ones, i.e., the rates that applied during different periods in the case). See, e.g., 

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Bradburn Parent Teacher Store, 513 F. Supp. 2d at 341; Meijer, 2006 WL 2382718, at *24; Ikon 

Office Solutions, 194 F.R.D. at 195. See also Petruzzi's Inc. v. Darling-Delaware Co., Inc., 983 

F. Supp. 595, 607 (M.D. Pa. 1996) (Vanaski, J.) (“It is . . . appropriate to calculate the lodestar 

based upon current rates to compensate for the fact that services have been rendered over an 11 

year period.”). 

 When used as a cross-check, the lodestar analysis may be abridged and requires “neither 

mathematical precision nor bean counting.” Rite Aid, 396 F. 3d at 305-06. District courts may 

rely on summaries from counsel and need not review actual billing records. Id. at 306-07. 

 In the end, the lodestar cross-check is just that—a safeguard; it “does not trump the 

primary reliance on the percentage of common fund method.” Id. at 307. 

 Class Counsel in this case have gone a step beyond the requirements of Rite Aid, using 

not just “blended” rates, which average the rates of all attorneys and paralegals who worked on 

the case, but the actual rates of each attorney and paralegal, thereby providing a more accurate 

accounting of what would have been billed had the case been pursued on an hourly fee basis. 

See Nichols, 2005 WL 950616, at *24 (lodestar calculated at actual billing rates). The hourly 

rates charged by Class Counsel and their support staff are consistent with rates that Class 

Counsel have been awarded in other cases. 

 Using Class Counsel’s reasonable, actual, current rates, the lodestar totals $19,616,951, 

which is substantially more than the percentage fee ($16,333,333) that Class Counsel have 

requested. The percentage fee Class Counsel request thus has a negative multiplier. This 

confirms the reasonableness of the fee request, especially when considered against multipliers 

approved in other cases—including some that were found to lack complexity or that settled 

without the protracted and hard-fought litigation that this case required. See, e.g.: 

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• In re Cendant Corp. PRIDES Litig., 243 F.3d 722, 741-42 (3d Cir. 2001) 

(suggesting that a lodestar multiplier of 3 would be appropriate on remand, even 

though the Third Circuit found the case was lacking in legal and factual 

complexity, and—in this pre-Rite Aid case—the lodestar was calculated using the 

senior partner rate as the rate for all hours); 

• Bradburn Parent Teacher Store, 513 F. Supp. 2d at 341 (approving a fee award 

resulting in a lodestar multiplier of 2.5 at counsel’s then-current rates in a case 

litigated for nearly four years); 

• Nichols, 2005 WL 950616, at *24 (awarding fees as a percentage of the fund that 

translated to a 3.15 multiplier in a case that lasted roughly four-and-a-half years); 

• Ikon Office Solutions, 194 F.R.D. at 195 (conducting a lodestar cross-check of the 

percentage fee award and finding a 2.7 multiplier, calculated at counsel’s thencurrent rates, to be well within an appropriate range in a case lasting roughly oneand-a-half years); 

• Meijer, 2006 WL 2382718, at *21, 24 (approving a percentage fee award that 

translated to a 4.77 multiplier in a case that settled after roughly one year). 

Indeed, even if Class Counsel’s lodestar were calculated at historic rates, it would be 

$16,530,110, and thus still exceed the percentage fee that Class Counsel request. The lodestar 

cross-check thus confirms that the percentage fee that Class Counsel seek is appropriate. 

III. REIMBURSEMENT OF LITIGATION EXPENSES FROM THE 

SETTLEMENT FUND IS APPROPRIATE. 

 It is well-established that attorneys who create a common fund for the benefit of a class 

are entitled to reimbursement from that fund of the reasonable litigation expenses they advanced 

on behalf of the class. See Cendant Corp. PRIDES Litig., 243 F.3d at 732 n.12 (quoting the 1985 

Task Force Report for the conclusion that the “common-fund doctrine . . . allows a person who 

maintains a lawsuit that results in the creation, preservation, or increase of a fund in which others 

have a common interest, to be reimbursed from that fund for litigation expenses incurred.”); 

Ikon Office Solutions, 194 F.R.D. at 192 (observing that there is “no doubt” that attorneys who 

create a common fund for the benefit of a class are entitled to reimbursement of reasonable 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 34 of 40
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litigation expenses from that fund) (citation omitted). See also AT&T Corp., 455 F.3d at 172 n.8 

(observing that litigation “[e]xpenses are generally considered and reimbursed separately from 

attorneys’ fees). 

 Class Counsel request reimbursement of $1.3 million in out-of-pocket expenses. A large 

component of this amount consists of fees paid to experts and consultants who were instrumental 

in, among other things, helping Plaintiffs evaluate the case and prepare it for trial. These 

expenses, as well as others routinely charged to hourly-fee-paying clients, such as deposition 

expenses, photocopying charges, computerized legal research costs, and travel expenses, were 

reasonable and appropriate. 

 Moreover, Class Counsel’s request for reimbursement of expenses is supported by the 

three class members whose claims represent the vast majority of the settlement fund. See 

Exhibits 3-5 to the Memorandum of Law in Support of Plaintiffs’ Motion for Final Approval of 

Direct Purchaser Class Settlement. 

 In addition, although each case is unique, the expenses sought in this case are roughly 

comparable to (and in some cases significantly less than) those reimbursed in other antitrust 

litigation within the Third Circuit, including cases that were litigated for far less time. See, e.g., 

MMA, 2009 WL 3150399, at *2 (awarding reimbursement of roughly $1.3 million in expenses 

incurred over roughly three years); Auto. Refinishing Paint, 2008 WL 63269, at *6 (expenses of 

roughly $1.2 million incurred over approximately three-and-a-half years); Remeron Direct 

Purchaser Antitrust Litig., 2005 WL 3008808, at *17 (awarding reimbursement of $1.925 

million in expenses incurred during roughly three years). By the time of the final approval 

hearing, this case, by contrast, will have lasted nearly seven years since filing (and considerably 

longer if Class Counsel’s pre-filing investigation is included). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 35 of 40
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 In light of the efficiency with which Class Counsel managed the costs in this lengthy 

litigation, Class Counsel respectfully submit that this is not a case in which the policy rationale 

for deducting costs from the settlement fund before awarding attorneys’ fees applies. See 

Lachance, 965 F. Supp. at 647-48 (discussing rationale behind deducting costs first of 

incentivizing counsel to efficiently manage litigation costs, which may then inure to the benefit 

of the court in reviewing costs). In this case, where no such incentive was needed, deducting 

costs before awarding fees would serve only as a penalty. 

 Moreover, as noted above, even Lachance acknowledges that most courts award fees 

from the gross settlement fund, see id. at 647, and many courts within this jurisdiction have 

continued to do so in the years since Lachance was decided. See, e.g., MMA, 2009 WL 3150399, 

at *2; Auto. Refinishing Paint, 2008 WL 63269, at *3, 8; Fanning, 2000 WL 1622741, at *5. 

IV. AWARDS TO THE CLASS REPRESENTATIVE PLAINTIFFS ARE 

APPROPRIATE. 

 Awards to class representative plaintiffs for their efforts in bringing and prosecuting the 

case are common in class action litigation, particularly where, as in this case, a common fund has 

been created for the benefit of the entire class. See Cullen, 197 F.R.D. at 145. Indeed, courts 

routinely approve awards to class representatives for the services they provided and the risks 

they undertook in pursuing a case, placing the interests of the class above their own. Id. See 

also Bradburn Parent Teacher Store, 513 F. Supp. 2d at 342 (“It is particularly appropriate to 

compensate named representative plaintiffs with incentive awards when they have actively 

assisted plaintiffs’ counsel in their prosecution of the litigation for the benefit of the class.”); 

Auto. Refinishing Paint, 2008 WL 63269, at *7 (“Incentive awards are typically awarded to class 

representatives for their often extensive involvement with a lawsuit and courts in this Circuit 

have traditionally granted requests for these awards.”). 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 36 of 40
35

 Plaintiffs SAJ and Meijer each actively assisted in the preparation and prosecution of this 

case, including by assisting in the pre-filing investigation, reviewing draft complaints, collecting 

and producing documents, preparing for and giving depositions, and preparing to participate in 

what could have been a several-week trial. Without these efforts, members of the class would 

not have recovered anything. In recognition of their work as class representatives, Class Counsel 

request that the Court approve awards in the amount of $25,000 each to SAJ and Meijer. 

 The requested awards are well within the acceptable range awarded by courts within the 

Third Circuit in other recent direct purchaser antitrust litigation. See, e.g.: 

• Bradburn Parent Teacher Store, 513 F. Supp. 2d at 342 (awarding $75,000 to the 

named plaintiff, which worked with class counsel through four years of investigation, 

prosecution, and settlement, including giving nine depositions, testifying at the class 

certification hearing, and preparing to attend and testify at trial); 

• Auto. Refinishing Paint, 2008 WL 63269, at *7 (approving awards to four class 

representatives resulting in aggregate awards of $30,000 each, where the class 

representatives spent significant time assisting counsel and litigating the case, 

resulting in benefits to all class members); 

• Remeron Direct Purchaser Antitrust Litig., 2005 WL 3008808, at *18 (awarding a 

total of $60,000 to be divided between the two named plaintiffs for their efforts in 

behalf of the class); and 

 

• Linerboard, 2004 WL 1221350, at *18-19 (awarding $25,000 each to five class 

representatives, who conferred benefits on the class in providing verified 

interrogatory answers, producing documents, preparing for and giving depositions, 

and participating in initial mediation sessions). 

See also In re Cardizem CD Antitrust Litig., 218 F.R.D. at 535-36 (awarding $75,000 each to the 

corporate class representatives); McCoy v. Health Net, Inc., 569 F. Supp. 2d 448, 479-80 (D.N.J. 

2008) (ERISA action approving awards of $60,000 each to the named plaintiffs and citing cases 

approving named plaintiff awards ranging from $35,000 to $200,000 each). 

 The requested awards, like Class Counsel’s requests for attorneys’ fees and 

reimbursement of expenses advanced on behalf of the class, are also supported by the three class 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 37 of 40
36

members whose claims represent the vast majority of the settlement fund. See Exhibits 3-5 to 

the Memorandum of Law in Support of Plaintiffs’ Motion for Final Approval of Direct Purchaser 

Class Settlement. 

CONCLUSION

 Without any guarantee of success or repayment, Class Counsel pursued this litigation at 

their own risk and expense, and in return, they seek reasonable fees of one-third of the $49 

million settlement fund ($16,333,333) (plus accrued interest from the date of deposit of the funds 

at the same rate earned by the funds) and reimbursement of $1.3 million in expenses that they 

advanced on behalf of Plaintiffs and the class. Class Counsel also request that named Plaintiffs 

SAJ and Meijer be awarded $25,000 each for their efforts in prosecuting this case to a successful 

resolution on behalf of the direct purchaser class. 

Dated: October 14, 2011 Respectfully submitted, 

/s/ Joseph F. Roda 

Joseph F. Roda 

/s/ Dianne M. Nast 

Dianne M. Nast 

Jennifer S. Snyder 

RODANAST, PC 

801 Estelle Drive 

Lancaster, Pennsylvania 17601 

(717) 892-3000 

Lead Counsel for Direct Purchaser 

Class Plaintiffs 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 38 of 40
37

Michael L. Roberts 

ROBERTS LAW FIRM, PA 

P.O. Box 241790 

20 Rahling Circle 

Little Rock, Arkansas 72223 

(501) 821-5575 

Arnold Levin 

Fredrick S. Longer 

LEVIN, FISHBEIN, SEDRAN & BERMAN 

510 Walnut Street, Suite 500 

Philadelphia, Pennsylvania 19106 

(215) 592-1500 

J. Douglas Richards 

COHEN MILSTEIN SELLERS & TOLL PLLC

88 Pine Street 

14th Floor 

New York, NY 10005 

(212) 838-7797 

Paul E. Slater 

SPERLING & SLATER, PC 

55 W. Monroe Street, Suite 3300 

Chicago, Illinois 60603 

(312) 641-3200 

Daniel E. Gustafson 

Karla M. Gluek 

GUSTAFSON GLUEK PLLC 

650 Northstar East, 

608 2nd Avenue S. 

Minneapolis, MN 55402 

(612) 333-8844 

Linda P. Nussbaum 

Shelly Friedland 

John D. Radice 

GRANT & EISENHOFER P.A. 

485 Lexington Avenue 

New York, NY 10017 

(646) 722-8500 

Daniel Berger 

Eric L. Cramer 

BERGER & MONTAGUE, P.C. 

1622 Locust Street 

Philadelphia, Pennsylvania 19103 

(215) 875-3026 

Joseph M. Vanek 

VANEK, VICKERS, & MASINI P.C. 

111 S. Wacker, Suite 4050 

Chicago, Illinois 60606 

(312) 224-1500 

Co-Counsel for Direct Purchaser Class Plaintiffs 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 39 of 40
CERTIFICATE OF SERVICE

 I hereby certify that the foregoing Class Counsel’s Motion for Attorneys’ Fees, 

Reimbursement of Expenses, and Class Representative Awards and supporting memorandum 

were served via ECF upon all counsel of record on this 14th day of October, 2011. 

 

 /s/ Joseph F. Roda 

 Joseph F. Roda 

 RODANAST, P.C. 

 801 Estelle Drive 

 Lancaster, Pennsylvania 17601 

 Telephone: (717) 892-3000 

 Facsimile: (717) 892-1200 

Case 2:04-cv-05525-LS Document 410 Filed 10/14/11 Page 40 of 40