\mg\klein,v.\lit\mot-attysfees_federal.1616.121018 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

VICTORIA KLEIN and §

ASHLEY SWADLEY, §

Plaintiffs, §

§

VS. §

§

O'NEAL, INC., d/b/a O'NEAL, JONES& §

FELDMAN PHARMACEUTICALS, §

CVS CAREMARK, as a Successor to §

CVS REVCO D.S., INC., as a Successor to § CA 7-03-CV-102-D

REVCO D.S., INC., and to RETRAC, INC., §

f/k/a Carter-Glogau Laboratories, Inc., §

Defendants, §

§

VS. §

§

FEDERAL INSURANCE CO., §

a/k/a CHUBB GROUP OF INSURANCE §

COMPANIES; §

Defendants. §

CLASS PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES, EXPENSES OF LITIGATION, 

AND COMPENSATION FOR CLASS REPRESENTATIVES,

PURSUANT TO RULES 23(h) and 54(d)(2), FED. R. CIV. P,

FROM THE INSURANCE PROCEEDS AWARDED TO THE E-FEROL CLASS BY 

JUDGMENT OF THE U.S. DISTRICT COURT OF THE NORTHERN DISTRICT OF TEXAS, 

ON DECEMBER 2, 2016 AND AFFIRMED BY THE FIFTH CIRCUIT COURT OF APPEALS 

ON MARCH 12, 2018

TO: THE HONORABLE SIDNEY A. FITZWATER,

SENIOR JUDGE, UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS:

COME NOW, VICTORIA KLEIN and ASHLEY SWADLEY, plaintiffs, individually and as the 

class representatives of the E-Ferol class action, and move the court to award reasonable attorney’s fees, 

expenses of litigation (nontaxable costs), and compensation for class representatives from the insurance 

proceeds held in escrow and awarded to the E-Ferol class by judgment of the U.S. District Court for the 

Northern District of Texas, on December 2, 2016, Klein v. Federal, 220 F.Supp.3d 747 (N.D. Mar. 12 

2018). The United States Court of Appeals affirmed the district court judgment, Klein v. Federal, 714

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Fed. Appx. 441 (5th Cir. 2018). Pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2), class plaintiffs would 

respectfully show the court as follows:

1.

CERTIFICATE (OPPOSED MOTION)

Since this motion includes a request for attorneys’ fees in a class action, Rule 23(h), Fed. R. Civ. 

P., requires notice to all class members and is thus, a contested motion.

CERTIFICATE OF CONFERENCE

A conference was held on December 3, 2018, with Dawn S. Walker, of Akin Gump Strauss 

Hauer & Feld, LLP, who has replaced Barry Chasnoff as lead counsel for Defendants O’Neal, Inc., and 

CVS Caremark, et al., on the merits of this motion. Ms. Walker advised that her client had no objection 

to this motion. Thus, this motion is submitted to the court for a determination.

2.

On February 16th and 17th, 2010, the United States District Court for the Northern District 

of Texas conducted a fairness hearing, pursuant to Fed. R. Civ. P. 23(e) and (h), to determine 

whether the proposed settlement of the E-Ferol class action was fair, reasonable, and adequate to 

all class members. Following two days of testimony, introduction of numerous exhibits, and the 

argument of counsel, and briefing by all parties, Chief United States District Judge Sidney A. 

Fitzwater issued a Memorandum Opinion, on April 9, 2010, finding that the proposed settlement 

was fair, adequate, and reasonable. The district court also approved attorneys’ fees and 

expenses. Klein v. O’Neal, 705 F.Supp.2d 632 (N.D. Tex. 2010) (Fitzwater, C.J.) ("Klein III"). 

The court’s opinion is located on the E-Ferol class action website, www.eferolclassaction.com, 

and also on the PACER system, www.pacer.gov. (Pacer doc. no. 426)

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On June 18, 2010, the district court entered final judgment in this cause, subject to further 

litigation as may be required in connection with three (3) non-participating insurers as described 

in the Settlement Agreement and Release (Pacer doc. no. 306-2). 

Following the entry of judgment, one class member filed a notice of appeal which was 

resolved by settlement with the appealing class member. The district court approved that 

settlement on November 19, 2010 (Pacer doc. no. 475). Following a resolution of 

Medicare/Medicaid issues, the district court directed class counsel to distribute the settlement 

proceeds from the participating insurers, beginning on July 18, 2011 (Pacer doc. no. 523). The 

distribution of those proceeds was completed by January 18, 2013. 

3.

Following the settlement, litigation proceeded with the three non-participating insurance carriers, 

who had refused to fund the settlement, Mission Insurance Co., International Insurance Co., n/k/a 

Westchester Fire Insurance Co., and Federal Insurance Co., a wholly-owned subsidiary of the Chub 

Corporation.

(a) Mission Insurance Company

Mission Insurance Co. had been in receivership in the State of California since 1985. The Superior 

Court for the County of Los Angeles supervised the insolvency and addressed all questions covering the 

administration of the receivership. Class plaintiffs moved to have the receiver, the California 

Commissioner of Insurance, reopen for E-Ferol recipients, on equitable grounds, deadlines for filing 

claims that had required a written submission be filed by late 1988, arguing that the E-Ferol recipients 

were four years-old at the time and their parents were unaware of their child’s receipt of E-Ferol. The 

commissioner declined to reopen the deadlines. The denial was upheld in the receivership action by the 

Superior Court for the County of Los Angeles on March 25, 2013.

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(b) Westchester Fire Insurance Company

In mid-2014, a settlement was reached with Westchester Fire Insurance Co., f/k/a International 

Insurance Co., and approved by this court following a Rule 23(e)(h) fairness hearing on September 19, 

2014. Distribution of most of these funds was completed in 2015. However, location of some class 

members has proven to be more problematic than the original distribution as described in class plaintiffs’ 

motion to amend the E-Ferol settlement agreement.

(c) Federal Insurance Company

After seven (7) years of extensive litigation with Federal Insurance Company that required six 

published opinions by the district court, both sides submitted motions for summary judgment upon which 

this court heard oral argument on September 9, 2016. On December 2, 2016, this court issued its 

Memorandum Opinion and Order (Pacer doc. no. 834) granting class plaintiffs' motion for summary 

judgment on the question of insurance coverage awarding class plaintiffs the entire policy limit of $15 

million. This court denied Federal's motion for summary judgment. Klein v. Federal, 220 F.Supp.3d 

747 (N.D. Tex. 2016) (Fitzwater, J.). Federal then appealed. On March 7, 2018, lead class counsel, Art 

Brender, presented oral argument before the United States Court of Appeals for the Fifth Circuit, in New 

Orleans, Louisiana. Five days later, on March 12, 2018, the Fifth Circuit issued its opinion affirming

judgment for class plaintiffs based on the Memorandum Opinion and Judgment of this court. 714 Fed. 

Appx. 441 (5th Cir. 2018). On October 18, 2018, this court granted class plaintiffs’ motion for summary 

judgment which required Federal Insurance Co. to pay post-judgment interest in the sum of $157,217.50. 

Klein v. Federal Insurance Co., 2018 WL. 5084888 (N.D. Tex. Oct. 18, 2018) (Fitzwater, S.J.). Federal 

declined to appeal and paid the post-judgment interest.

Pursuant to this court's ruling in Klein v. O'Neal, Inc., 705 F.Supp.2d 632, 681 (N.D. Tex. 2010) 

(Fitzwater, C.J.) (“Klein III”), class counsel did not seek to obtain an attorney's fee for the settlement 

amounts assessed against the non-participating insurers unless class counsel succeeded in the litigation 

with those insurers. Id. At p. 681, n. 44.

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Class counsel now seeks an award of attorney's fees from the Federal Insurance Co.’s liability 

insurance proceeds of $15 million plus accrued pre-judgment and post-judgment interest at the same 

thirty percent (30%) rate of recovery as they did in the initial settlement and in the subsequent settlement 

with Westchester. In addition, class counsel seek the recovery of litigation and distribution expenses and 

compensation for class representatives.

4.

ATTORNEY’S FEES

Class plaintiffs request the award of attorney’s fees pursuant to Fed. R. Civ. P. 23(h) and 54(d), 

based upon the creation of a common benefit fund, in this common law negligence and product liability 

case. See, class plaintiff’s initial motion for attorney’s fees, expenses, and costs, compensation for class 

representatives and administrative costs. (Pacer doc. nos. 328, 329, 330, filed 12/28/09 and 12/29/09) 

This court approved the class plaintiffs’ request, assessing attorney’s fees based on a percentage of the 

common benefit fund at thirty percent (30%) of the funds recovered from the participating insurers. The 

court found that the fee was fair and reasonable to the class. (“Klein III” at 672-83) Class counsel did 

not request a fee for any sums that were allocated to the non-participating insurers, reserving the right to 

file a supplemental request contingent upon the recovery of funds from those insurers. (“Klein III” at 

681, n.44) (Memorandum Opinion and Order, Pacer doc. no. 834, filed 12/02/16, pp. 42-43)

Class counsel diligently pursued all three non-participating insurers and although unsuccessful in 

pursuing Mission, have succeeded in obtaining a settlement with Westchester Fire Insurance Co. f/k/a 

International Insurance Co. (hereinafter “Westchester”) and now have succeed in the coverage litigation 

against Federal Insurance Co. Thus, class plaintiffs seek the recovery of the same percentage fee sought 

from the participating insurers by applying the same percentage to the common fund created by the 

judgment awarded against non-participating insurer, Federal Insurance Co. Class plaintiffs also seek 

reimbursement for their reasonable and necessary litigation expenses from this fund. 

The Federal insurance proceeds and accrued interest paid to the E-Ferol class action trust account 

at Cadence Bank following the affirmance of Judge Fitzwater’s judgment did not include post-judgment 

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interest which Federal refused to pay. Consequently, class counsel filed a motion for summary judgment 

to require Federal to pay post-judgment interest. On October 18, 2018, Judge Fitzwater rendered 

judgment for $157,217.50 in post-judgment interest which Federal has now paid. Klein v. Federal 

Insurance Co., 2018 WL 5084888 (N.D. Tex. Oct. 18, 2018) (Fitzwater, S.J.). Thus, the total recovery 

from Federal subject to distribute is the sum of $15,204,876.45.

5.

Class plaintiffs include by reference in this motion, the evidence in their previously filed motion 

for award of reasonable attorney’s fees filed prior to, and heard at, the fairness hearing (Pacer doc. no. 

328), including the declaration of lead class counsel, Art Brender (Pacer doc. no. 328-2); declaration of 

class counsel, Dwain Dent (Pacer doc. no. 328-8); declaration of class counsel, Fred Streck (Pacer doc. 

no. 328-9); and the fee sharing agreement approved by all three class counsel (Pacer doc. no. 328-5). 

Class plaintiffs also offer, by reference, the testimony presented at the fairness hearing by Professor Jim 

Underwood, of Baylor Law School, and Professor Charles Silver, of the University of Texas Law School 

on the fairness and reasonableness of the award of attorneys’ fees and compliance with the Johnson

factors. See, “Klein III,” pp. 672-82; transcript of Fairness Hearing, Professor Underwood (Pacer doc. 

no. 444), vol. 1, pp. 231-67; Professor Silver (Pacer doc. no. 445), vol. 2, pp. 64-119.

6.

The class plaintiffs request that the district court award a fee based on the creation of a common 

benefit fund. See, Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); 

“Klein III” at 673. This court approved the use of the percentage method of determining reasonable 

attorney’s fees where there was a creation of a common fund without a fee shifting statute, despite the 

fact that the law in the Fifth Circuit at the time was “unclear.” Id. at 674. The district court applied a 

“Johnson v. Georgia Highway Express” check to the percentage fee to determine the reasonableness of 

the fee. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); “Klein III” at 673-76. 

Since the district court’s decision in 2010, the Fifth Circuit, although still not explicitly endorsing the 

percentage method of assessing fees in common fund cases, has nevertheless been, “. . . amenable to its 

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use, so long as the Johnson framework is utilized to ensure that the fee award is reasonable.” Union Asset 

Mgn. Holding, A.G. v. Dell, Inc., 669 F.3d 632, 642-646 (5th Cir. 2012). The Fifth Circuit, in Union 

Asset, specifically cited with approval, this court’s opinion in “Klein III” as an example of district courts 

in the circuit regularly using the percentage method “blended with a Johnson reasonableness check.” Id.

at 643, citing, Klein v. O’Neal, Inc., 705 F.Supp.2d 632 (N.D. Tex. 2010) (Fitzwater, C.J.), at n.30.

The considerations in this litigation that were present at the initial fairness hearing are the same as 

those that apply to this additional recovery and therefore, class plaintiffs adopt the evidence and argument 

heretofore presented to the court in the combined fairness and attorney’s fee hearing in this request for an 

attorney’s fee from this judgment. Since the effort and difficulty in obtaining the original settlement was 

a part of the Johnson check, there is no difference in the continuation of this litigation by class counsel in 

order to collect the additional sums from the three non-participating insurers. 

Class counsel have attached hereto their declarations that attest to the efforts and time required 

over the past seven (7) years in order to obtain this additional settlement. See, Brender Declaration, 

Exhibit A; Dent Declaration, Exhibit B; and Streck Declaration, Exhibit C. Also attached to the 

declarations of class counsel are the requests for reimbursement of expenses of litigation, including costs

of distribution. As stated in the declarations, considerable time and effort were expended by class counsel 

following the approval of the class settlement in pursuit of the non-participating insurers as set out in 

class counsel's declarations.

Thus, the only factor remaining for the court to consider in applying the Johnson check with 

regard to the Federal judgment is to ensure that the fee request is reasonable given the time and effort 

reported by counsel in the successful litigation. Class counsel’s declarations attest to the time and 

considerable effort in terms of the discovery of evidence and witnesses to events that occurred over thirty 

years ago that was necessary in order to obtain the evidence needed to prevail in this coverage dispute 

with Federal.

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The declarations of lead class counsel, Art Brender, and those of class counsel, Dwain Dent and 

Fred L. Streck, III, attest to the effort and expenditure of the time necessary to prevail in this coverage 

dispute such as to justify the percentage fee requested by class counsel.

Class counsel have reached an agreement as to the division of attorneys’ fees which was 

approved by the court in “Klein III.” Class counsel again asks that the court approve that agreement for 

this settlement. “Klein III” at 681, n.44.1

Thus, class counsel request the following attorneys’ fees at the rate of 30% of the total recovery 

from Federal Insurance Company of $15,204,876.45 as follows: lead class counsel, Art Brender, 

$2,052,658.32; class counsel, Dwain Dent, $1,824,585.18; and class counsel, Fred Streck, $684,219.44.

7.

As set out in their respective declarations, lead counsel, Art Brender, has expended $98,807.35;

class counsel, Dwain Dent, $125,339.25; and class counsel, Fred Streck, $6,485.52, in litigation expenses. 

Each has attested to the reasonableness and necessity of incurring these expenses on behalf of the class.

8.

Class plaintiffs also request an award of $35,000.00 each to class representatives, Victoria Klein 

and Ashley Swadley, for their time and effort over the past four and one-half years as class 

representatives. 

9.

The administrative fund of approximately $300,000.00 remains, but class counsel believe 

additional funds are needed to administer and complete the final distribution of the funds subject to this 

judgment. Thus, class representatives request an additional $200,000.00 to complete the distribution and 

the final report of the distribution. Any remaining funds would be included in the distribution of unpaid 

funds pursuant to the Settlement Agreement and Release.

 

1 The agreement which the court approved in “Klein III” was lead counsel, Art Brender, 45%; class counsel, Dwain 

Dent, 40%; and class counsel, Fred Streck, 15%. Id. at 681.

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WHEREFORE, PREMISES CONSIDERED, the class plaintiffs pray that the court grant this

motion for reasonable attorney’s fees for class counsel, reasonable and necessary expenses of litigation 

and a reasonable fee of $35,000.00 each for class representatives, Victoria Klein and Ashley Swadley, for 

the reasons set out in this motion.

Respectfully submitted,

 / S / -- Art Brender

_______________________________________

ART BRENDER

State Bar No. 02954500

THE BRENDER LAW FIRM

600 Eighth Avenue

Fort Worth, Texas 76104

(817) 334-0171, telephone

(817) 334-0274, telecopier

e-mail: mainoffice@brenderlawfirm.com

LEAD CLASS COUNSEL:

 / S / -- Dwain Dent

_______________________________________

DWAIN DENT 

State Bar No. 05760550

THE DENT LAW FIRM

1120 Penn Street

Fort Worth, Texas 76102

(817) 332-2889, telephone

(817) 332-5809, telecopier

e-mail: thedentlawfirm@cs.com

 / S / -- Fred L. Streck, III

_______________________________________

FRED L. STRECK, III

State Bar No. 19374350

STRECK & DAVIS LAW

555 S. Summit Ave.

Fort Worth, Texas 76104

(817) 332-3117, telephone

(817) 549-8898, telecopier

e-mail: fred.streck@streckdavislaw.com

CLASS COUNSEL

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CERTIFICATE OF SERVICE

I hereby certify that on the 10th day of December, 2018, I electronically filed the foregoing 

document with the clerk of court for the U.S. District Court, Northern District of Texas, using the 

electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic 

Filing" to the following attorneys of record who have consented in writing to accept this Notice as service 

of this document by electronic means and pursuant to the Federal Rules of Civil Procedure:

Dawn S. Walker

Akin Gump Strauss Hauer & Feld, LLP

300 Convent St., Suite 1500

San Antonio, Texas 78205

David Taylor

Thompson Coe

Plaza of the Americas

700 N. Pearl Street, 25th Fl.

Dallas, Texas 75201-2832

ATTORNEYS FOR FORMER DEFENDANTS,

O’NEAL, CVS REVCO D.S., INC. AND RETRAC, INC.

 / S / -- Art Brender

_____________________________________

ART BRENDER 

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