EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

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IN RE: AMERICAN MEDICAL SYSTEMS, INC., MDL No. 2325 

PELVIC REPAIR SYSTEM PRODUCTS LIABILITY 

LITIGATION 

____________________________________________________ 

IN RE: BOSTON SCIENTIFIC, PELVIC MDL No. 2326 

REPAIR SYSTEM PRODUCTS LIABILITY 

LITIGATION 

____________________________________________________ 

IN RE: ETHICON, INC., PELVIC REPAIR MDL No. 2327 

SYSTEM PRODUCTS LIABILITY LITIGATION 

____________________________________________________ 

IN RE: COLOPLAST PELVIC REPAIR SYSTEM MDL No. 2387 

PRODUCTS LIABILITY LITIGATION 

____________________________________________________ 

IN RE: COOK MEDICAL, INC, PELVIC REPAIR MDL No. 2440 SYSTEM PRODUCTS 

LIABILITY LITIGATION 

____________________________________________________ 

IN RE NEOMEDIC PELVIC REPAIR SYSTEM MDL No. 2511 PRODUCT LIABILITY 

LITIGATION 

___________________________________________________ 

THIS DOCUMENT RELATES TO ALL CASES 

___________________________________________________ 

COMMON BENEFIT FEE AND COST COMMITTEE’S 

PETITION FOR AN AWARD OF COMMON BENEFIT ATTORNEYS’ FEES AND 

EXPENSES, AND MEMORANDUM IN SUPPORT 

MDL PLAINTIFFS’ COUNSEL SHELLER P.C.’S RESPONSE IN OPPOSITION TO 

THE COMMON BENEFIT FEE AND COST COMMITTEE'S (FCC’S) PETITION FOR 

AN AWARD OF COMMON BENEFIT ATTORNEYS' FEES AND EXPENSES 

 The Plaintiffs’ law firm of Sheller, P.C. (hereafter ”Sheller”), both in its capacity of 

representing certain MDL Claimants and as having a pecuniary interest in any cases subsumed 

by the above-captioned MDLs, hereby submits its opposition to the Common Benefit Fee and 

Cost Committee’s (hereafter “FCC”) Petition for an Award of Common Benefit Attorneys’ Fees 

and Expenses [Doc. No 180], as filed by the FCC on November 12, 2018. 

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I. REFERENCING THE “LEADERSHIP FIRMS” SIXTY-EIGHT (68) TIMES 

IN A THIRTY-SEVEN (37) PAGE BRIEF, THE FCC’S PETITION IS A 

“SMOKING GUN” ADMISSION BY THE SO-CALLED “LEADERSHIP 

FIRMS,” WHO ARE THE ALTER EGOS OF THE FCC’S MEMBERSHIP, 

THAT THEY SEEK TO RAID THE COMMON BENEFIT FUND, 

CONFISCATING DISPROPORTIONATE PROCEEDS FOR THEMSELVES. 

When examining the pelvic mesh MDLs before this Court, it is unquestionable 

that the Common Benefit Fee and Cost Committee (the “FCC”) is disproportionately composed 

of members from the identical eight (8) firms who served on the various Plaintiffs’ Steering 

Committees (hereafter “PSCs”), served as Lead Counsel or Liaison Counsel, and or held other 

positions of influence, and whose mismanagement resulted in these MDL’s ineffectual trials and 

the lack of a global settlement on behalf of the en masse Claimants. 

A simple word search conducted of the FCC’s brief immediately reveals that in a thirtyseven (37) page brief, the FCC, in unequivocal reference to its own members, uses the term 

“leadership [firms]” an astonishing sixty-eight (68) times – a statistical occurrence of nearly 

one hundred eighty-four percent (184%). 

The so-called “leadership [firms]” are nothing more than the alter egos of the same firms 

piloting the FCC, and or those firms that have held administrative positions in the MDL. 

Based upon the empirical fact that the term “leadership [firms]” appears roughly one 

hundred eighty-four percent (184%) of the time over the length of the FCC’s brief’s pages, it 

must be readily evident to any reasonable fact-finder that the FCC’s Petition is nothing more 

than a “smoking gun” admission by its authors and by its supporting proponents, that the FCC 

has been, unfortunately, hijacked by a small band of profiteers, outrageously demanding 

unsupervised use of the Common Benefit Fund as their personal ATM. 

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 Once again, those endorsing the FCC’s brief are the alter egos of the FCC’s members, as 

well as the identical minority of law firms who stand to award themselves a disproportionate, 

windfall payday - which they failed to earn by their substandard efforts in this litigation. 

Referring to themselves ad nauseam, like great, unsung heroes (yet with no real victory 

to speak of), it is no coincidence that these so-called “leadership [firms]” have awarded 

themselves the vast majority of the Common Benefit Fund’s proceeds. Unsurprisingly, the 

FCC’s eight (8) constituent firms have flagrantly discounted and dismissed the work performed 

by many others who comprise the remaining eighty-six (86) Plaintiffs’ firms; other firms that 

regularly secured jury trial judgments in state courts for their clients, winning individual 

plaintiff’s judgments that far eclipsed the FCC’s meager, yet audaciously touted, “multiclaimant” settlements. 

 The purpose of an MDL common benefit fund is not to compensate particular plaintiffs’ 

firms, nor certain plaintiffs’ attorneys, for their court-appointed administrative or managerial 

positions. Rather, the fund’s existence is soundly based on the equitable principle of the 

“Common Benefit Doctrine,” which only allows for compensation in strict proportion to 

attorneys’ respective contributions to the litigation. See In re Vioxx Prods. Liab. Litig., 760 F. 

Supp. 2d 640, 647 (E.D. La. 2010) (“The theoretical bases for the application of this concept to 

MDLs are the same as for class actions, namely equity and her blood brother, quantum meruit.”; 

“Thus, MDL courts have consistently cited the common fund doctrine as a basis for assessing 

common benefit fees in favor of attorneys who render legal services beneficial to all MDL 

plaintiffs.” Id.) [emphasis added] 

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Hence, and as an extreme example, if a firm or attorney who is appointed to a 

“leadership” committee (or similar administrative position in an MDL), has secured zero dollars 

($0.00) in trial judgments and or settlements, and has also failed to contribute to the discovery 

process, that same firm should receive zero dollars ($0.00) in compensation from the Common 

Benefit Fund. Any other outcome would deprive the fund of its purely equitable nature, which 

demands that the fund’s proceeds be proportionately distributed based on the positive results 

secured by any, all, or some of the litigating Plaintiffs’ firms. See, e.g. Central R.R.& Banking v. 

Pettus, 113 U.S. 116 (1885); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164, 166-67 (1939); 

Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970); Boeing, 444 U.S. 472; and Blum v. Stenson, 

465 U.S. 886, 900 (1984). 

II. PLAINTIFFS’ FIRMS NOT BELONGING TO THE FCC, NOR POSSESSING 

OTHER ALTER EGO POSITIONS OF “LEADERSHIP”, ENTERED INTO 

LEGALLY ENFORCEABLE CONTRACTS WITH MEMBER FIRMS OF 

THE FCC AND ITS ALTER EGO “LEADERSHIP[FIRMS]”, AND RETAIN 

ALL THEIR APPELLATE RIGHTS IN SUCH A DISPUTE. 

By virtue of the oral agreements, and or of the written, memorialized communications 

with member firms of the FCC and its alter ego “leadership firms,” other Plaintiffs’ firms 

participating in these MDLs entered into legally enforceable contracts with the FCC and its alter 

ego “leadership [firms]”, in order to be properly compensated for their state court work – the true 

unrecognized triumphs of these MDLs, which substantially improved the recovery for the 

remaining Claimants. 

Irrespective of any of the pre-trial orders (“PTOs”) entered in these MDLs, which sought 

to impose compulsory waivers of Plaintiffs’ firms’ appellate rights to contest subsequent courtapproved fee determinations, contracts between the FCC firms/the “leadership [firms]” and the 

other non-FCC/non-“leadership” Plaintiffs’ firms are distinctly exempt from the MDLs’ 

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jurisdiction, and are subject to all remedies available at law or in equity that would otherwise 

attach to any contractual dispute, including, not limited to, the right to exhaustion of all appeals. 

In addition to any applicable principles of contract law, the FCC firms’ and their alter ego

“leadership [firms’]” failures to perform under said contracts are subject to the doctrine of 

promissory estoppel, as well as all other feasible theories upon which recovery may be based. 

III. THE PROPOSED FIVE PERCENT (5%) COMMON BENEFIT FUND FEE 

PERCENTAGE IS TOO HIGH BASED ON THE SIZE OF THIS “SUPERMEGA-FUND,” AS IT HAS BEEN DESIGNATED BY THE FCC, PER THE 

GROSS RECOVERY OF ONE BILLION DOLLARS ($1,000,000,000.00) AND 

THE LARGE NUMBER OF FILED CASES. 

The bedrock mathematical principle underpinning a court’s award of a common benefit 

fee percentage, is that the percentage should exist in an inverse relationship to the gross dollar 

amount of the MDL’s total recovery or global settlement (which the “leadership [firms]” did not 

secure). In cases involving a small settlement, for example, the fee may be as high as twelve 

percent (12%), whereas in a larger case it may range, on average, from three to five percent (3% 

to 5%). 

As the FCC takes considerable length to point out, the pelvic mesh MDLs before the 

Court fall into the “white whale” category of MDL litigation. To borrow the FCC’s language 

(which the FCC itself borrowed), the gross recovery amount available for distribution in the 

instant Common Benefit Fund of these pelvic mesh MDLs is most properly classified as a 

“super-mega-fund,” otherwise known as a common benefit fund whose assets are at least one 

billion dollars ($1,000,000,000.00). In re Actos (Pioglitazone) Prods. Liab. Litig., 2017 WL 

3033134, *27 (W.D. La. 2017) 

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Because the common benefit fund in this “unprecedented” MDL exceeded the 

FCC’s wildest expectations (See E.C.F. No. 180, pp. 1, 18, 24), it should also be met with an 

appropriate fee award, consistent with the governing mathematical principle of inverse 

relationship, of no more than two and one-half percent (2 1⁄2%) of the gross plaintiffs’ 

counsels’ fees – or half of the outrageous five percent (5%) sought by the FCC and its alter ego

“leadership [firms].” 

IV. SHELLER, P.C. AND ALL OTHER PLAINTIFFS’ COUNSEL RETAIN 

THEIR RIGHTS TO WITHHOLD THEIR COUNSEL FEES FROM STATE 

COURT JUDGMENTS SUBJECT TO ANY PELVIC MESH MDL WHERE 

THESE PLAINTIFFS’ FIRMS DID NOT EXECUTE EITHER AN “AGREED 

TO” ORDER, NOR A COURT-PROVIDED PARTICIPATION AGREEMENT, 

PURSUANT TO THE COURT’S PRE-TRIAL ORDERS (PTOs) IN ANY OF 

THE MDLs. 

Due to the FCC firms’, and or their alter ego “leadership [firms’]” “lack of transparency, 

failure to comply with the underlying agreement for recognition of common benefit work, selfdealing, and disparate treatment between FCC member and non-member firms” (see E.C.F. No. 184, 

p. 5), Sheller, P.C., as well as all of the other remaining Plaintiffs’ firms in these MDLs, retain their 

possessory rights to withhold any attorneys’ fees secured in any litigated proceedings to date, in any 

jurisdiction, to the extent that said Plaintiff’s firms did not execute either an “Agreed To Order” in 

any of the above-captioned MDLs, and or did not execute the Court’s proposed “Participation 

Agreements,” appended to either the “Agreed To Orders,” or any of the other “PTOs” entered in 

these MDLs. 

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V. ASSUMING, ARGUENDO, THE COURT WERE TO APROVE AN 

UNREASONABLE FIVE PERCENT (5%) FEE, OR ANY FEE ABOVE TWO 

AND ONE-HALF PERCENT (2 1⁄2%) TO THE COMMON BENEFIT FUND, 

THE PERCENTAGE SHOULD BE APPORTIONED BETWEEN 

ATTORNEYS’ FEES, AND COSTS AND EXPENSES. 

If the Court were, for some reason, to make an award of five percent (5%) or, for that 

matter, any percentage in excess of the highly reasonable two and one-half percent (2 1⁄2%) 

instantly sought, then the percentage fee should be apportioned into two “addends,” the sum of 

which is equal to the total court-awarded fee percentage. That is, only a certain part of the total 

percentage should be apportioned for actual attorneys’ fees, and the remainder of the percentage 

fee amount apportioned to costs and expenses. See, for instance, In re: All Individual Kugel 

Mesh Cases, No. PC-2008-9999, 2009 WL 3328368 (R.I. Super., Aug. 11, 2009) (apportioning a 

twelve percent (12%) fee award into two separate percentage fee component amounts: eight 

percent (8%) for attorney’s fees and four percent (4%) for costs and expenses). 

 Respectfully Submitted, 

 SHELLER, P.C. 

 By: /s/ Stephen A. Sheller___ 

 Stephen A. Sheller 

 Kimberly Aponte Borden 

 1528 Walnut Street, 4th Floor 

 Philadelphia, PA 19102 

 (215) 790-7300 (Tel.) 

 (215) 546-0942 (Fax) 

 sasheller@sheller.com 

 Counsel for Plaintiffs 

Dated: January 18, 2019 

 

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CERTIFICATE OF SERVICE

 I, Stephen A. Sheller, hereby certify that I served the foregoing Response in Opposition 

to the Common Benefit Fee and Cost Committee's (FCC’s) Petition for an Award of Common 

Benefit Attorneys' Fees and Expenses upon all counsel of record via the Court’s electronic filing 

system. 

Dated: January 18, 2019 /s/ Stephen A. Sheller____ 

 STEPHEN A. SHELLER

 

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