IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

VICTORIA KLEIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 7:03-CV-102-D

VS. § (Consolidated with 

 § Civil Action No. 7:09-CV-094-D)

O’NEAL, INC., d/b/a O’NEAL, §

JONES & FELDMAN §

PHARMACEUTICALS, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In a memorandum opinion and order filed April 9, 2010, the

court approved the proposed settlement in this class action.

Defendants request, without opposition from class plaintiffs, that

the court for factual accuracy make certain changes to the

memorandum opinion and order. The court grants the request.

Accordingly, the following paragraph found at pages 51-52 that

reads:

The court is also unpersuaded that the

exclusion of CVS from the Settlement Agreement

renders it unfair or inadequate to the class.

The parties debated in their briefing and at

the fairness hearing the legal question

whether CVS bore ongoing liability in this

case, or whether these liabilities were

discharged in a prior bankruptcy proceeding.

Defendants maintain that CVS does not have any

liability for the actions of the corporation

from which it purchased assets and that, even

if CVS were included in the pool of liability

defendants, the total payout amount under the

settlement would not be increased. Long has

not presented evidence that, if CVS were

included in the proposed settlement, the

amount paid would be greater. Defendants

 

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posit that the settlement amount was

determined by estimating the value of the

various claims and arriving at a total

aggregate amount——a calculation that the

inclusion of CVS would not alter. Chasnoff

testified that the parties did not “just start

with a lump sum amount.” Tr. 2:9. Rather,

the settlement talks began with “an evaluation

of . . . what we believed was the——the

settlement value of every class member’s

claim[], one by one, and that fed into an

ultimate settlement amount and that was in our

minds as we negotiated.” Id.

is amended to read:

The court is also unpersuaded that the

lack of contribution from CVS renders the

Settlement Agreement unfair or inadequate to

the class. Under the terms of the Settlement

Agreement, the parties agree that CVS “has no

liability with respect to any claims filed” in

this action. Settlement Agreement at 20. The

parties debated in their briefing and at the

fairness hearing the legal question whether

CVS bore ongoing liability in this case, or

whether these liabilities were discharged in a

prior bankruptcy proceeding. Defendants

maintain that CVS does not have any liability

for the actions of the corporation from which

it purchased assets and that, even if CVS did

have such liability, the total payout amount

under the settlement would not be increased.

Long has not presented evidence that, if CVS

were liable, the amount paid would be greater.

Defendants posit that the settlement amount

was determined by estimating the value of the

various claims and arriving at a total

aggregate amount——a calculation that the

inclusion of CVS would not alter. Chasnoff

testified that the parties did not “just start

with a lump sum amount.” Tr. 2:9. Rather,

the settlement talks began with “an evaluation

of . . . what we believed was the——the

settlement value of every class member’s

claim[], one by one, and that fed into an

ultimate settlement amount and that was in our

minds as we negotiated.” Id.

 

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The following paragraph found at pages 52-53 that reads:

In sum, Long, on the one hand, and the

class plaintiffs and defendants, on the other,

have different views about CVS’s potential

liability. But that is not the point. What

matters is that the question is debatable, and

the position taken by the class plaintiffs and

defendants is reasonable. Indeed, given the

approach taken by the class plaintiffs in this

case and by plaintiffs generally in mass tort

litigation, it is highly doubtful that, if

class counsel had a realistic (or perhaps any)

prospect of obtaining more money by seeking to

hold CVS liable, they would have opted not to

sue CVS. The court’s opinion that the

Settlement Agreement is reasonable is

bolstered by the fact that “[s]killed and more

than adequate lawyers for the class believe[]

it to be a good bargain.” Reed, 703 F.2d at

174. The omission of CVS and its insurers

from the proposed settlement does not undercut

the finding that the settlement is fair,

reasonable, and adequate. 

is amended to read:

In sum, Long, on the one hand, and the

class plaintiffs and defendants, on the other,

have different views about CVS’s potential

liability. But that is not the point. What

matters is that the question is debatable, and

the position taken by the class plaintiffs and

defendants is reasonable. Indeed, given the

approach taken by the class plaintiffs in this

case and by plaintiffs generally in mass tort

litigation, it is highly doubtful that, if

class counsel had a realistic (or perhaps any)

prospect of obtaining more money by seeking to

hold CVS liable, they would have opted to

release and dismiss CVS without receiving

payment from CVS. The court’s opinion that

the Settlement Agreement is reasonable is

bolstered by the fact that “[s]killed and more

than adequate lawyers for the class believe[]

it to be a good bargain.” Reed, 703 F.2d at

174. The absence of contribution from CVS and

its insurers to the proposed settlement does

 

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not undercut the finding that the settlement

is fair, reasonable, and adequate.

Except as modified herein, the memorandum opinion and order

filed April 9, 2010 shall stand as filed.

SO ORDERED.

June 14, 2010.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

 

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