IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS, et al.

 

 Plaintiffs,

 vs.

BASF CATALYSTS LLC, et al.

 

 Defendants.

No. 2:11-cv-01754 (JAD)

CIVIL ACTION

MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR APPROVAL 

AND GRANT OF AWARDS OF CLASS COUNSEL’S ATTORNEYS’ FEES, 

CLASS COUNSEL’S REIMBURSEMENT OF LITIGATION EXPENSES 

AND CLASS REPRESENTATIVE SERVICE AWARDS

__________________________________________________________________

 COHEN, PLACITELLA & ROTH, P.C.

 Christopher M. Placitella, Esq.

 (NJ Atty #: 027781981)

 Michael Coren, Esq.

 (NJ Atty #: 024871979)

 Jared M. Placitella, Esq.

 (NJ Atty #: 068272013)

 Eric S. Pasternack, Esq.

 (NJ Atty #: 015132011)

 127 Maple Avenue

 Red Bank, NJ 07701

 (732) 747-9003

 Attorneys for Plaintiffs and the Putative Class

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TABLE OF CONTENTS

I. Introduction.........................................................................................................1

II. Background .........................................................................................................5

A. Class Counsel uncover evidence that purports to identify asbestos in Emtal 

Talc.5

B. Class Counsel and Class Representatives bring suit on behalf of the Class.6

C Class Counsel successfully appeal the decision dismissing the First 

Amended Complaint to the Third Circuit..............................................................8

D. Class Counsel file a Second Amended Complaint........................................9

E. Discovery was hard fought and involved many motions including those 

over the scope of discovery and application of attorney-client and work product

privileges and privilege exceptions......................................................................10

F. After several unsuccessful rounds of mediations, the parties reach an 

accord in principle and execute a settlement term sheet in January 2019. 

Subsequently, after many months of further negotiation on the settlement’s 

specifics, the parties agree upon the Settlement Agreement. ..............................14

III. Argument........................................................................................................18

A. The percentage-of-recovery method. ..........................................................22

1. The size of the fund and number of beneficiaries....................................23

2. The presence or absence of substantial objections by members of the 

class to the settlement terms..............................................................................25

3. The skill and efficiency of the attorneys involved...................................27

4. The complexity and duration of the litigation..........................................30

5. The risk of nonpayment. ..........................................................................35

6. The Amount of time that Plaintiffs’ Counsel devoted to the case...........38

7. Fee awards in similar cases......................................................................39

8. The value of benefits attributable to the efforts of Class Counsel relative 

to the efforts of other groups.............................................................................41

9. The percentage fee that would have been negotiated had the case been 

subject to a private contingent fee arrangement. ..............................................42

10. The Settlement Agreement contains many innovative features...............42

B. A lodestar cross-check confirms that this Fee Request is reasonable.........45

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C. Class Counsel’s expenses are adequately documented and were reasonably 

and appropriately incurred. ..................................................................................50

D. Incentive awards for the Class Representatives..........................................51

IV. Conclusion......................................................................................................54

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TABLE OF AUTHORITIES

Cases

Bradburn Parent Teacher Store, Inc. v. 3M, 

513 F. Supp. 2d 322 (E.D. Pa. 2007)....................................................................40

Cantey Hanger, LLP v. Byrd, 

467 S.W.3d 477 (Tex. 2015)................................................................................32

Cullen v. Whitman Med. Corp., 

197 F.R.D. 136 (E.D. Pa. 2000) .................................................................... 27, 52

Dewey v. Volkswagen Aktiengesellschaft, 

558 Fed. Appx. 191 (3d Cir. 2014) ............................................................... 21, 39

Doe v. Terhune, 

121 F. Supp. 2d 773 (D.N.J. 2000).......................................................................47

Gunter v. Ridgewood Energy Corp., 

223 F.3d 190 (3d Cir. 2000).................................................................... 22, 23, 41

Hegab v. Family Dollar Stores, Inc., 

No. 11-1206, 2015 U.S. Dist. LEXIS 28570 (D.N.J. Mar. 9, 2015)....................36

Hensley v. Eckerhart, 

461 U.S. 424 (1983) .............................................................................................18

In re AT&T Corp. Sec. Litig., 

455 F.3d 160 (3d Cir. 2006).......................................................................... 42, 45

In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 

MDL No. 1871, 2012 U.S. Dist. LEXIS 180561 (E.D. Pa. Oct. 19, 2012).........49

In re Cendant Corp. Sec. Litig., 

404 F.3d 173 (3d Cir. 2005).............................................................. 20, 35, 39, 45

In re Diet Drugs Prod. Liab. Litig., 

582 F.3d 524 (3d Cir. 2009).............................................................. 22, 36, 41, 50

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iv

In re Flonase Antitrust Litig., 

951 F. Supp. 2d 739 (E.D. Pa. 2013)....................................................................40

In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 

55 F.3d 768 (3d Cir. 1995)...................................................................... 19, 24, 39

In re NFL Players’ Concussion Injury Litig., 

MDL No. 2323, 

2018 U.S. Dist. LEXIS 57798 (E.D. Pa. Apr. 5, 2018)..................... 42, 45, 48, 52

In re Orthopedic Bone Screw Prod. Liab. Litig., 

No. 97-381, 2000 U.S. Dist. LEXIS 15980 (E.D. Pa. Oct. 23, 2000)..................25

In re Processed Eggs Prods. Antitrust Litig., 

MDL No. 2002, 2012 U.S. Dist. LEXIS 160764 (E.D. Pa. Nov. 9, 2012)..........40

In re Prudential Ins. Co. of Am. Sales Practices Litig., 

106 F. Supp. 2d 721 (D.N.J. 2000)................................................................ 18, 45

In re Rite Aid Corp. Sec. Litig., 

396 F.3d 294 (3d Cir. 2005).................................................................... 40, 45, 46

In re Rite Aid. Corp. Secs. Litig., 

362 F. Supp. 2d 587 (E.D. Pa. 2005)....................................................................41

In re Safety Components Int’l Secs. Litig., 

166 F. Supp. 2d 72 (D.N.J. 2001).................................................................. 27, 50

In re Schering-Plough Corp., 

No. 08-397, 2013 U.S. Dist. LEXIS 147981 (D.N.J. Aug. 28, 2013)..................48

In re ViroPharma Inc. Sec. Litig., 

No. 12-2714, 2016 U.S. Dist. LEXIS 8626 (E.D. Pa. Jan. 25, 2016)..................48

In re Vitamins Antitrust Litig., 

No. 99-197, 2001 U.S. Dist. LEXIS 25067 (D.D.C. 2000) .................................24

In re: Heartland Payment, 

851 F. Supp. 2d 1040 (S.D. Tex. 2012)................................................................23

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Krell v. Prudential Ins. Co. of Am. (in Re Prudential Ins. Co. Am. Sales Practice 

Litig. Agent Actions), 

148 F.3d 283 (3d Cir. 1998).................................................................................19

Lincoln Adventures LLC v. Certain Underwriters at Lloyd’s, 

No. 08-0235, 2019 U.S. Dist. LEXIS 17197 (D.N.J. Oct. 3, 2019).....................40

Local 56, United Food and Commercial Workers Union v. Campbell Soup Co., 

954 F. Supp. 1000 (D.N.J. 1997)..........................................................................18

Lonardo v. Travelers Indemnity Co., 

706 F. Supp. 2d 766 (N.D. Ohio 2010)................................................................24

Meijer, Inc. v. 3M, 

No. 04-5871, 2006 U.S. Dist. LEXIS 56744 (E.D. Pa. Aug. 15, 2006)...............27

Pro v. Hertz Equip. Rental Corp., 

No. 06-3830, 2013 U.S. Dist. LEXIS 86995 (D.N.J. June 20, 2013)........... 18, 24

Rossi v. Proctor & Gamble, 

No. 11-7238, 2013 U.S. Dist. LEXIS 143180 (D.N.J. Oct. 3, 2013)...................18

Rossini v. PNC Fin. Servs. Grp., Inc., 

No. 18-370, 2020 U.S. Dist. LEXIS 113242 (W.D. Pa. June 26, 2020)..............40

Schuler v. Meds. Co., 

No. 14-1149, 2016 U.S. Dist. LEXIS 82344 (D.N.J. June 24, 2016)..................42

Schwartz v. Avis Rent a Car Sys., LLC, 

No. 11-4052, 2016 U.S. Dist. LEXIS 80387 (D.N.J. June 21, 2016)..................52

Smith v. Daimlerchrysler Servs. N. Am., L.L.C., 

No. 00-6003, 2005 U.S. Dist. LEXIS 25116 (D.N.J. Oct. 24, 2005)...................20

Sullivan v. DB Investments, Inc., 

667 F.3d 273 (3d Cir. 2011).......................................................................... 45, 51

Varacallo v. Mass. Mut. Life. Ins. Co., 

226 F.R.D. 207 (D.N.J. 2005) ..............................................................................21

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Welch & Forbes, Inc. v. Cendant Corp. (In re Cendant Corp. Prides Litig.), 

243 F.3d 722 (3d Cir. 2001).................................................................................25

Williams v. BASF Catalysts LLC, 

765 F.3d 306 (3d Cir. 2014).............................................................................9, 31

Williams v. BASF Catalysts LLC, 

No. 11-1754, 2012 U.S. Dist. LEXIS 175918 (D.N.J. Dec. 12, 2012)..................8

Williams v. BASF Catalysts LLC, 

No. 11-1754, 2016 U.S. Dist. LEXIS 46273 (D.N.J. Apr. 5, 2016) ....................10

Williams v. BASF Catalysts, LLC, 

No. 11-1754, 2017 U.S. Dist. LEXIS 122053 (D.N.J. Aug. 3, 2017)........... 11, 12

Statutes

N.J.S.A. § 2C:41-1.....................................................................................................7

N.Y.J.L. § 487........................................................................................................7, 8

Rules

Fed. R. Civ. P. 12(b)(6)..............................................................................................9

Fed. R. Civ. P. 23(h) ................................................................................................18

Federal Rule of Evidence 408..................................................................................14

Treatises

Civil RICO: An Effective Deterrent to Fraudulent Asbestos Litigation?, 40 

Cardozo L. Rev. 2301 (June 2019).......................................................................31

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I. Introduction1

After nine years of hard-fought litigation, on September 3, 2020, this Court

granted preliminary approval of the Settlement Agreement, which counsel for the 

parties had been negotiating since the execution of the Term Sheet on January 25,

2019. Subject to the Court granting final approval, this settlement will provide

substantial compensation to members of the Class who were deprived of a fair 

chance to litigate their (or a deceased relative’s) original Emtal Talc asbestos 

claims (“Underlying Lawsuits”) because of the Defendants’ alleged wrongful 

conduct that resulted in the dismissal of those claims. 

Given the complexity of the procedural and substantive legal issues in the 

case and the tenacity with which Defendants have contested the allegations that

they wrongly concealed evidence of asbestos allegedly found in Emtal Talc, the 

results achieved by Class Counsel and the Class Representatives are nothing short 

of extraordinary and warrant approval of this Petition. Under the terms of the 

Settlement Agreement, Defendants BASF Catalysts, LLC (“BASF”) and Cahill 

Gordon & Reindel LLP (“Cahill”) (collectively “Defendants”) will establish a nonreversionary $72.5 million settlement fund (“Settlement Fund”) to compensate 

1 All capitalized terms and phrases used herein have the same meaning as they are 

defined in the Settlement Agreement and Plan of Distribution preliminary 

approved by the Court on September 3, 2020 in CM/ECF No. 623.

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Settlement Class members for damages that resulted from the dismissal of the 

Underlying Lawsuits because of Defendants’ alleged fraudulent concealment of 

evidence that Emtal talc contained asbestos. 

In addition, Class Counsel obtained Defendants’ agreement to pay an 

additional $3.5 million into a separate Cost Fund to cover (1) the costs of the 

extensive multi-state, multi-channel notice program that was necessary to 

reasonably reach and inform Class Members of the Class Action Settlement and 

their rights under it; and (2) the costs of the claims administration, including a lien 

resolution program. Only after the parties had agreed to these and other material

terms of the Settlement did they take up the issue of Class Counsel’s attorneys’

fees and reimbursement of their expenses. The parties agreed that BASF and Cahill 

would pay, over and above the Settlement Fund, Class Counsel’s attorneys’ fees 

and litigation expenses awarded by the Court up to a maximum of $22.5 million 

and $1.2 million, respectively. As negotiated, the payment of Class Counsel’s

attorneys’ fees and costs will not diminish the recovery to Class members.

All in all, due to the services of Class Counsel and the resources they

devoted to this unique case, Class Counsel have secured for the Class, if the 

Settlement is approved by this Court, $99.7 million in monetary benefits and nonfinancial benefits. Class Counsel accordingly requests an attorney’s fee award of 

$22.5 million and a cost reimbursement award of $1,038,300.27. BASF and Cahill

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do not oppose this request and have agreed to pay these fees and costs if awarded 

by the Court.

Class Counsel’s $22.5 million fee request represents about 22.6% of the 

total value of the Settlement when all of the above enumerated financial benefits of 

the Settlement are considered. This is an eminently fair and reasonable fee 

percentage in light of the benefits achieved for the Class and the fact that the 

parties negotiated the fee amount at arm’s length. The fee amount meets all of the 

Gunther-Prudential factors under the percentage of recovery method. It also falls 

well within the ranges approved by courts in the Third Circuit, particularly 

considering the excellent results achieved, the time devoted by Class Counsel over 

the eleven years they have been pursuing this cause, and the time and effort to be 

devoted in the future as the Plan of Distribution (“Plan” or “POD”) is 

administered.

The fee request also readily satisfies the lodestar method of determining fee 

awards if applied or used as a cross-check to the percentage of benefits method. As 

of the filing of this Petition, the lawyers and professional staff of Cohen, Placitella 

& Roth have devoted 21,799.9 hours on this litigation for a lodestar of 

$17,665,091.50, for a multiplier of just 1.27.

Looked at either way, as a percentage of recovery or lodestar, the requested 

fee is reasonable and appropriate given the complex, lengthy and challenging

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nature of this case; the substantial litigation risks incurred by Class Counsel who 

took this matter on a contingent fee basis; and the vigorous defense and daunting 

odds that Class Counsel overcame to achieve this settlement, which included 

multiple motions to dismiss and prosecuting a successful appeal to the Third 

Circuit in order to proceed. In fact, with the Final Approval Hearing still months 

away, Class Counsel continue to work daily on the implementation of the

Settlement and expect that the lodestar cross-check will only become more 

favorable to the approval of this Petition. 

Class Counsel additionally request that this Court approve this request for 

reimbursement of expenses in the amount of $1,038,300.27. These expenses are 

modest in a case of this complexity and length, have been amply documented and

were necessary to achieve the results here.

Finally, Class Counsel request that this Court grant incentive awards of 

$50,000 to each of the six Class Representatives (an aggregate of $300,000) for 

their contribution over nine years of litigation to achieving this substantial recovery 

for the members of the Class.

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II. Background

A. Class Counsel uncover evidence that purports to identify asbestos 

in Emtal Talc.

From 1967 to 1983, a subsidiary of Engelhard Corporation mined talc from 

the Johnson Mine in Johnson, Vermont under the brand name Emtal Talc.

Beginning in the late 1980s and continuing for many years, numerous 

plaintiffs filed bodily injury actions (hereinafter the “Underlying Lawsuits”) 

against Engelhard Corporation and later, its corporate successor, BASF. These 

plaintiffs alleged that asbestos in Emtal Talc caused them to develop asbestosrelated injuries.

Based upon Class Counsel’s investigation, the initial and amended 

Complaints alleged that, Engelhard and its successors’ defense of the Underlying 

Lawsuits from the 1980s until 2009, by, with and through their national defense 

counsel, Cahill Gordon systematically denied that: (1) Emtal talc contained any 

asbestos; (2) evidence that Emtal talc contained asbestos existed; and (3) any 

Engelhard employee had ever testified about the presence of asbestos in its talc.

Based on these contentions, Plaintiffs alleged that Defendants, for many years,

successfully convinced attorneys and their clients in the Underlying Lawsuits to 

voluntarily outright, or in exchange for nominal settlements, dismiss their cases.

When that did not occur, Defendants obtained court-ordered dismissals based on 

the assertion that Emtal talc did not contain asbestos and thus, was not defective 

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and could not cause harm. Defendants denied and continue to deny these 

allegations.

In 2009, Class Counsel learned of evidence in a state court asbestos case that

appeared to contradict the claims made by Defendants in the Underlying Lawsuits.

Class Counsel’s discovery led it to investigate the evidence about Emtal talc 

further and pursue additional discovery. These efforts resulted in the production of

testing results, depositions, and other evidence previously unknown in the 

Underlying Lawsuits that became the springboard for the allegations in this 

Action.2

B. Class Counsel and Class Representatives bring suit on behalf of 

the Class.

Following its investigation, Class Counsel filed the Class Action Lawsuit on 

March 28, 2011, on behalf of five of the current six Class Representatives—

Kimberlee Williams, Nancy Pease (who upon her death was succeeded by her 

sister Gayle Williams), Marilyn L. Holley, Donna Ware (who upon her death was 

eventually succeeded by her niece-in-law Sheila Ware), and Donnette Wengerd.

After Defendants filed several motions to dismiss the initial complaint, the sixth 

2 Defendants deny that this evidence was wrongfully concealed in the Underlying 

Lawsuits, contend that the amount of asbestos reported to be found in these test 

results is insufficient to cause harm to human health and dispute the validity of 

some of the tests Plaintiffs claim identify asbestos in certain samples of Emtal 

Talc.

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Representative Plaintiff, Mrs. Rosanne Chernick, joined in the matter when Class 

Counsel filed the First Amended Class Action Complaint (“FAC”) on August 3, 

2011. Each of the Class Representatives represents the estate of a deceased 

plaintiff who had sued Engelhard or BASF in an Underlying Lawsuit asserting an 

Emtal talc asbestos claim that was either voluntarily or involuntarily dismissed 

during the Class Period.

The FAC, like the original complaint, alleged claims under New Jersey law 

for common-law fraud in various forms, fraudulent concealment (which 

encompasses New Jersey’s stand-alone “spoliation” tort), violation of New 

Jersey’s Racketeer Influenced and Corrupt Organizations Act (NJ-RICO), N.J.S.A. 

§ 2C:41-1, et seq., conspiracy to violate New Jersey’s RICO statute, unjust 

enrichment, and common law conspiracy. In addition, the FAC pleaded a statutory 

claim against Cahill and the co-defendant individual attorneys for violation of New 

York Judiciary Law §487 (Misconduct by attorney) (“N.Y.J.L. § 487 Claim”).

Defendants moved to dismiss the FAC claiming that (1) the District Court 

lacked jurisdiction over the case because of the Rooker-Feldman doctrine; (2) 

Plaintiffs had not adequately pleaded their claims; and (3) the District Court lacked 

the authority to provide Plaintiffs their requested relief because of the AntiInjunction Act and principles of justiciability. Although the District Court rejected 

the challenge to its jurisdiction, it otherwise fully granted the motions to dismiss.

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The Court ruled that Plaintiffs’ fraud and fraudulent concealment claims were not 

actionable as New Jersey’s litigation privilege immunized Defendants from tort 

liability for alleged misstatements made in the Underlying Lawsuits. The District 

Court further found that Plaintiffs failed to plead an actionable RICO claim, 

reasoning that the Underlying Lawsuits were personal injury claims, and that 

Plaintiffs’ requested relief would impermissibly undermine prior state court 

judgments in the Underlying Lawsuits. Williams v. BASF Catalysts LLC, No. 11-

1754, 2012 U.S. Dist. LEXIS 175918 (D.N.J. Dec. 12, 2012). The Court also held 

that an actionable N.Y.J.L. § 487 claim was not pled.

C Class Counsel successfully appeal the decision dismissing the First 

Amended Complaint to the Third Circuit.

The Class Representatives appealed the dismissal to the Third Circuit. The 

appeal raised complex, novel issues of law, the scope of protection afforded the 

Defendants by their assertion of a litigation privilege, applicability of RICO to the 

facts, and the justiciability and availability relief to the Class for conduct that 

implicated cases long dismissed in state cases around the country. After requesting 

supplemental briefing, the Third Circuit ultimately reversed the Order dismissing 

the FAC in part, holding: (1) New Jersey’s litigation privilege does not bar 

Plaintiffs’ fraud and fraudulent concealment claims based upon the allegations in 

the FAC; and (2) the FAC adequately alleged the elements of fraud and fraudulent 

concealment under New Jersey law. The Third Circuit also affirmed in part, 

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upholding the District Court’s decision to dismiss Plaintiffs’ RICO claim. Williams 

v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir. 2014). Finally, it denied 

Defendants’ petition for rehearing en banc before remanding the matter to the 

District Court.

D. Class Counsel file a Second Amended Complaint.

Following remand of the case to this Court, the Class Representatives filed a 

Second Amended Complaint (“SAC”). This 155-page document with 43 appended 

exhibits once more alleged claims against Defendants for fraudulent concealment, 

fraud, and civil conspiracy under New Jersey law. It also refined the previous 

allegations based on Class Counsel’s continuing investigation.

The SAC alleged that between late 1984 to 2009, Engelhard and Cahill 

defended asbestos bodily injury cases in state and federal courts in large part by (1) 

denying that Emtal Talc contained any asbestos, (2) denying the existence of any 

evidence that it did and/or (3) stating that no Engelhard employee had ever testified 

about the presence of asbestos in its talc. Plaintiffs claimed that Engelhard and 

Cahill employed this defense for 25 years, allegedly resulting in thousands of 

dismissals, either voluntarily, by court order, or through Engelhard’s participation 

in nuisance-value group settlements with other talc defendants.

Defendants again moved to dismiss Plaintiffs’ claims under Rule 12(b)(6). 

The District Court denied the motions to dismiss the SAC and ordered the case to 

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continue to discovery. Williams v. BASF Catalysts LLC, No. 11-1754, 2016 U.S. 

Dist. LEXIS 46273, *23-27 (D.N.J. Apr. 5, 2016). Defendants continued to dispute 

each and every element of the Plaintiffs’ claims, arguing, among other things, that

the Underlying Lawsuits were settled or dismissed for a variety of reasons 

unrelated to the fraud alleged in the SAC.

E. Discovery was hard fought and involved many motions including 

those over the scope of discovery and application of attorneyclient and work product privileges and privilege exceptions.

As soon as discovery began following the Court’s denial of Defendants’

motions to dismiss the SAC, the parties engaged in major, protracted disputes over 

the permissible scope of discovery and application of privileges and privilege 

exceptions. 

Specifically, the parties vigorously disagreed about the extent, if any, to 

which Defendants were entitled to delve into the merits of the Underlying Lawsuits 

and discover Plaintiffs’ and their original attorneys’ files and confidential attorneyclient communications from those suits. Defendants argued that discovery of the 

plaintiffs’ files from the Underlying Lawsuits would reveal that (1) some plaintiffs

could not prove that they suffered an asbestos related disease, (2) that some claims 

were time barred, and (3) the Underlying Lawsuits had been dismissed or settled 

for reasons unrelated to the conduct alleged in the SAC. To that end, Defendants 

sought discovery not only from the Class Representatives, but also through 

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subpoenas duces tecum to several attorneys who represented absent class members. 

Plaintiffs however argued, among other things, that Defendants had forfeited the 

right to discovery regarding the Underlying Lawsuits and sought a protective order 

precluding their review of those files.

After several rounds of briefing, the District Court per then Chief Judge 

Linares rejected Plaintiffs’ arguments, in part, regarding the scope of discovery and 

ruled that “exposition” of the Underlying Lawsuits was necessary. Williams v. 

BASF Catalysts, LLC, No. 11-1754, 2017 U.S. Dist. LEXIS 122053, *30, 33 

(D.N.J. Aug. 3, 2017). More particularly, the District Court ruled that the “scope of 

discovery will focus on the alleged wrongful conduct and any alleged harm 

following from that conduct” including “why Plaintiffs settled or dismissed their 

underlying claims.” Id. at *31. The Court ruled that “[t]o fully explore this issue, 

Defendants will be entitled to discover what Plaintiffs and their counsel knew, and 

were told, and whether any knowledge, or lack thereof, contributed to Plaintiffs’

decisions on resolving the underlying case.” Id. That inquiry, the Court explained, 

permitted a limited waiver of the Class Representatives’ claims of attorney-client 

privilege and therefore warranted review of the files and correspondence related to 

the Underlying Lawsuits. Id. at *32-33. However, the Court also ruled that 

discovery must be “tightly define[d] and control[led]”, id. at *33, and to that end 

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Soto as Special Discovery Master (“SDM”) to manage and preside over discovery.

See Williams v. BASF Catalysts LLC, No. 11-1754, 2017 U.S. Dist. LEXIS 154772 

(D.N.J. Sept. 21, 2017).

In the year following the SDM’s appointment, the parties exchanged over 

300 pieces of meet-and-confer correspondence; filed more than 50 discovery 

motions; appeared numerous times for in-person hearings before the Special 

Master, often during which multiple motions were argued; and participated in 

numerous telephone conference calls with the Special Master on discovery issues.

Based on the SDM’s rulings, hundreds of thousands of pages of documents and 

ESI equivalents were produced which Class Counsel organized and reviewed. In 

addition, over the course of the discovery, the parties took 28 depositions, with 

more being scheduled when the Court entered the order staying this matter and 

directing the parties to mediation.

Another key discovery issue involved Plaintiffs’ motion to compel 

production of documents under the crime-fraud exception to the attorney-client and 

work-product privileges asserted by BASF and Cahill. Plaintiffs filed their initial 

crime-fraud brief on November 2, 2017. After considering that brief and 

Defendants’ opposition, the SDM held multiple days of oral argument on the 

threshold inquiry of whether Plaintiffs had made a prima facie showing that 

Defendants engaged in a fraud or fraudulent conduct triggering the exception to 

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both privileges. Although Defendants’ earlier request for a “Science Day” had 

been denied by the Court without prejudice, the SDM ordered the parties to 

provide him with expert testimony about the testing record of Emtal talc. While 

Class Counsel steadfastly maintained its position that an exposition on the science 

of material testing for asbestos in talc was not needed to determine the crime-fraud 

exception—or any other issues in the case for that matter—Class Counsel 

nonetheless prepared to present evidence for the Science Day before the SDM. In 

addition, Class Counsel appealed to, and sought a stay of the SDM’s Science Day 

order from the District Court. While that appeal and request for an emergency stay 

were pending (along with several other appeals from the SDM’s rulings), on June 

26, 2018, Chief Judge Linares stayed the action and ordered that the parties engage 

in settlement discussions before Magistrate Judge Dickson. CM/ECF # 602.3

Another disputed discovery topic involved Class Counsel’s challenge to 

BASF’s claims of attorney-client and work product privileges on certain Emtal talc 

testing documents it withheld from its document production. After extensive

briefing and arguments before him as well as his in camera review, the Special 

Master rejected the Defendants’ privilege with respect to certain testing 

documents. BASF immediately appealed the adverse ruling to the District Court, 

3 The discussions with the Magistrate Judge led the parties to resume mediation 

with Judge Philips described in the next section.

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generating even more briefing. This appeal from the SDM’s ruling was also

pending when Chief Judge Linares stayed the Williams Action and ordered that the 

parties participate in settlement discussions before Judge Dickson.

4

F. After several unsuccessful rounds of mediations, the parties reach 

an accord in principle and execute a settlement term sheet in 

January 2019. Subsequently, after many months of further 

negotiation on the settlement’s specifics, the parties agree upon 

the Settlement Agreement.

Over the course of this litigation, the parties engaged in four rounds of 

mediation. The first mediation effort followed the Third Circuit’s decision. In the 

early part of 2015, the parties participated in several sessions, including one in 

person before retired U.S. District Court Judge Layn R. Phillips. This effort did not 

result in a settlement and the parties thereafter resumed active litigation.

In 2016, the parties agreed to return to mediation before Judge Phillips. 

Under Judge Phillips’ auspices, the parties shared information under Federal Rule 

of Evidence 408 and mediation privilege to facilitate discussion on different 

settlement scenarios and models. Despite several sessions with Judge Phillips, and 

some without him throughout the summer of 2016, the parties could not reach 

agreement on material terms and the mediation ended. The parties thereafter once 

4 The parties resolved this disputed issue through agreement on a publicly available 

redacted version of the document and entry of a consent order at CM/ECF No. 622.

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more resumed the litigation, undertaking fulsome discovery which, as it tends to 

do, exposed the strengths and weaknesses of the parties’ respective positions.

By July 2018, the parties had completed a significant amount of pre-trial 

discovery, including extensive document productions among parties and from 

subpoenaed third parties (mainly law firms and insurance carriers) concerning 

Emtal talc and the history of the Underlying Lawsuits; depositions of the Class 

Representatives; depositions of the lead attorneys who originally represented the 

Class Representatives in their respective underlying actions; a deposition of an 

attorney previously with the Rothenberg firm who had represented the firm’s 

Pennsylvania absent class members in the Underlying Lawsuits; depositions of 

numerous BASF personnel and in-house counsel; and depositions of several 

current or former Cahill personnel involved in the Underlying Lawsuits.

By this time, in conformity with the SDM’s scheduling order, Class Counsel

had filed and briefed the Class Representative’s motion for class certification.

Class Counsel had also retained experts on material testing, asbestos claim 

litigation economics, asbestos disease prevalence and modeling and other pertinent 

areas. 

After entry of the stay, Judge Dickson supervised discussions between 

counsel for the parties, which included four in-person sessions before him, as well 

as telephone conferences with the parties. When the parties began making some 

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progress towards a potential settlement, they agreed, and obtained this Court’s 

consent, to return to Judge Phillips for further mediation. After two, very intense, 

arm’s length in-person mediation sessions with Judge Phillips during the fall-early 

winter of 2018-2019—augmented with separate unilateral party sessions with 

Judge Phillips and bilateral telephone and in-person negotiation sessions among 

just the parties—the parties reached an accord on the elements of a settlement in 

January 2019. The parties reduced the major terms of the agreement in principle to 

a written term sheet that the parties executed on January 25, 2019.

Over the next fourteen months, the parties engaged in extensive discussions 

and negotiations to hammer out disputed specifics of the settlement agreement. 

The process entailed exchanges of numerous document drafts, telephone calls, email exchanges and in-person meetings. Throughout this time, Class Counsel 

simultaneously worked on the design and drafting of the Plan of Distribution with 

the Settlement’s appointed claims administrator, Verus LLC, along with input, 

suggestions and comments received from additional experts and consultants in 

pertinent fields as well as defense counsels’ comments provided in accordance 

with the Term Sheet. The effort of Class Counsel’s drafting team over these 

fourteen months—some at times working daily, full time and exclusively on the 

project—culminated in the parties’ execution of the Settlement Agreement on

March 13, 2020.

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Following the execution of the Settlement Agreement, the parties turned 

their attention to the final element needed for settlement approval, the Notice Plan. 

Working with defense counsel, Class Counsel vetted and retained BrownGreer 

PLC to serve as the proposed Settlement’s Notice Agent and commissioned it to 

research and prepare a Notice Plan. Members of Class Counsel’s drafting team 

assisted and facilitated the notice planning by locating and providing data and

analysis BrownGreer used in developing the Notice Plan and refining the Class 

Notice mailing list, which the Court approved and ordered implemented in the 

Preliminary Approval Order .

Since the Court’s Preliminary Approval Order, Class Counsel have worked 

with the Settlement Trustee, the Settlement Administrator, and the Lien 

Administrator to finalize the claims infrastructure under the Plan of Distribution.

Class Counsel also negotiated and drafted the Settlement Fund and Cost Fund 

contracts with the Lien Administrator and the Funds’ Financial Institution, all of 

which have been executed. Class Counsel has also monitored BrownGreer’s 

execution of the Notice Plan, and on a daily basis, have taken calls and answered 

questions from numerous putative Class Members and attorneys who either have in 

the past or currently are representing potential Class Members or their surviving 

families.

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III. Argument

Federal Rule of Civil Procedure 23(h) expressly authorizes the Court to 

“award reasonable attorney’s fees and nontaxable costs that are authorized by law 

or by the parties’ agreement.” Rossi v. Proctor & Gamble, No. 11-7238, 2013 U.S. 

Dist. LEXIS 143180, *25 (D.N.J. Oct. 3, 2013) (citing Fed. R. Civ. P. 23(h)) 

(emphasis supplied). “The Supreme Court has suggested that such agreements 

should be encouraged as a matter of public policy.” In re Prudential Ins. Co. of 

Am. Sales Practices Litig., 106 F. Supp. 2d 721, 722 n.1 (D.N.J. 2000) (citing 

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). “In light of this recognized 

principle, courts routinely approve agreed-upon attorneys’ fees, particularly when 

the amount is independent and does not impact the benefit obtained for the class.”

Pro v. Hertz Equip. Rental Corp., No. 06-3830, 2013 U.S. Dist. LEXIS 86995,

*16-17 (D.N.J. June 20, 2013); see also Local 56, United Food and Commercial 

Workers Union v. Campbell Soup Co., 954 F. Supp. 1000, 1005 (D.N.J. 1997)

(granting class counsel the maximum amount of fees agreed to by defendant under 

the settlement agreement, where “class members . . . retain all that the settlement

provides [and] do not lose any of the negotiated benefits on account of an

attorneys’ fee and costs award that equals the ‘cap’ on such an award set forth in 

the settlement”).

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As Judge Phillips’ Declaration attests, the amount of Class Counsel’s fee 

and cost reimbursement were separately negotiated by the parties under his 

auspices only after all substantive settlement terms had been agreed to. CM/ECF # 

621-5. All discussions were at arm’s length and were guided by prevailing market 

rates, the history of this litigation, and the decade’s long effort of Class Counsel to 

obtain this historic result. The Court should accordingly approve this Petition for

attorney’s fees in the amount of $22.5 million that BASF and Cahill have agreed to 

pay on top of the $72.5 million that will go to compensate the members of the 

Class and the $3.5 million for the costs of notice and claims administration.

In confirming the reasonableness of this request for agreed upon attorney’s 

fees, a court may use one of two methods to assess the amount and reasonableness 

of the fee: the percentage-of-recovery method and the lodestar method. Krell v. 

Prudential Ins. Co. of Am. (in Re Prudential Ins. Co. Am. Sales Practice Litig. 

Agent Actions), 148 F.3d 283, 333 (3d Cir. 1998). These methods are not 

interchangeable. Each has its own advantages. And “for certain kinds of actions”

one method or the other will be “more appropriate as a primary basis for 

determining the fee.” Id. (quoting In re GMC Pick-Up Truck Fuel Tank Prods. 

Liab. Litig., 55 F.3d 768, 820 (3d Cir. 1995)).

Within the Third Circuit, the percentage-of-recovery method is generally 

favored in cases involving a constructive common fund because the method allows

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a court to award fees “‘in a manner that rewards counsel for success and penalizes 

it for failure.’” Id. The lodestar method, by contrast, “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.” Id. The lodestar method is also used, as the Third Circuit has 

recognized, in cases “where the nature of the recovery does not allow the 

determination of the settlement’s value necessary for application of the percentageof-recovery method.” Id.

The use of a lodestar cross-check is not required within the Third Circuit. In 

re Cendant Corp. Sec. Litig., 404 F.3d 173, 183 n.4 (3d Cir. 2005). Indeed, this 

District Court has held that cross-checking is not “necessary” where the fee request 

appears reasonable. Smith v. Daimlerchrysler Servs. N. Am., L.L.C., No. 00-6003, 

2005 U.S. Dist. LEXIS 25116, *12 (D.N.J. Oct. 24, 2005). However, a court may 

use the lodestar method as a cross-check on the reasonableness of an award.

This case does not involve a fee assessed against a defendant involuntarily

pursuant to a fee-shifting statute. Nor does it involve a traditional common fund 

because the Settlement Fund used to compensate Class Members here will not be 

diminished by the amount of the fee and cost awards allowed. Nevertheless, 

“where the reality is that the fund and the fee are paid from the same source, the 

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arrangement ‘is, for practical purposes, a constructive common fund,’ and courts 

may still apply the percent-of-fund analysis in calculating attorney’s fees.” Dewey 

v. Volkswagen Aktiengesellschaft, 558 Fed. Appx. 191, 197 (3d Cir. 2014) (quoting 

In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 

786, 820-21 (3d Cir. 1995).

Based upon this analytical formulation, Class Counsel and the Class 

Representatives secured a constructive total common fund which provides a $99.7 

million benefit package for the Class.5 The $22.5 million fee request, in other 

words, amounts to just 22.6% of the total constructive common fund, well within 

the range of reasonable fees recognized and approved in this circuit as to 

settlements of this size. Varacallo v. Mass. Mut. Life. Ins. Co., 226 F.R.D. 207, 249 

(D.N.J. 2005) (“Many courts, including several in the Third Circuit, have 

considered 25% to be the ‘benchmark’ figure for attorney fee awards in class 

action lawsuits, with adjustments up or down for significant case-specific 

factors.”). And while a lodestar cross-check is not required, Plaintiffs will discuss 

5 The settlement also includes significant non-monetary relief which is described in 

§2.5 of the Settlement Agreement. For instance, a material part of the Settlement 

was to assure that evidence would remain in the public domain. Further, the POD 

provides means of assistance for potential class members seeking information to 

determine their eligibility and file claims.

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both methodologies below as Class Counsel’s fee request is amply supported and 

warranted under either method.

A. The percentage-of-recovery method.

The Third Circuit has identified ten factors that should be considered to 

assess the reasonableness of a fee award under the percentage-of-recovery method. 

In re Diet Drugs Prod. Liab. Litig., 582 F.3d 524 (3d Cir. 2009); Gunter v. 

Ridgewood Energy Corp., 223 F.3d 190, 197-201 (3d Cir. 2000); In re Prudential 

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

factors, known as the Gunter/Prudential factors, are:

1. the size of the fund and the number of beneficiaries;

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;

7. the awards in similar cases;

8. the value of benefits attributable to the efforts of class counsel 

relative to the efforts of other groups, such as government 

agencies conducting investigations;

9. 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; and 

10. any innovative terms of the settlement.

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Id. Class Counsel’s fee request in this matter meets all of the applicable 

Gunter/Prudential factors and should be approved.

1. The size of the fund and number of beneficiaries.

The first Gunter factor considers the size of the fund and the number of 

beneficiaries. In considering this factor, courts first examine the value of the 

settlement. This entails consideration of not only the cash compensation to be paid 

to class members, but also any non-cash relief that can be readily valued, and the 

value or amount contributed for attorneys’ fees and expenses, and administrative 

and notice costs where these are paid in addition. In re: Heartland Payment, 851 F. 

Supp. 2d 1040, 1080 (S.D. Tex. 2012).

The value of the settlement here is readily valued at $99.7 million, based on 

summing: (1) a $72.5 million non-reversionary settlement fund dedicated to 

compensating Class Members; (2) a $3.5 million Cost Fund to cover the costs of 

providing the multi-channel class notice program, the claims administration and a 

lien resolution program; and (3) an agreed maximum of $22.5 million and $1.2 

million in attorney’s fees and litigation expenses to be paid by Defendants in 

addition to items (1) and (2).

6

6 Courts in the Third Circuit and elsewhere have held that a defendant’s negotiated 

agreement to pay attorney’s fees separately and over and above other monetary and 

equitable benefits, subject to court approval, is a benefit to the settlement class. 

Those courts have further held that where the amount of fees is agreed upon and 

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As to the number of beneficiaries, the Settlement’s Administrator has 

estimated size of the Class to be 18,721 people based on documents and databases 

relating to the plaintiffs in the Underlying Lawsuits who had sued Engelhard 

within the class period. This includes those who claimed an asbestos injury in the 

Underlying Lawsuits and their spouses or children who asserted derivative claims 

in those lawsuits. Applying a reasonable estimate of asbestos disease prevalence to 

this class size yields rather substantial projected payments to the Class Members 

who suffered an asbestos disease in addition to the uniform $500 Part A base 

compensation payments.

7

set forth in the agreement, that amount is fully includable as part of the class 

recovery when calculating a fee award under the percentage of recovery and 

lodestar cross-check methods. See In re General Motors Corp. Pick-Up Truck Fuel 

Tank Products Liab. Litig., 55 F.3d 768, 821 (3d Cir.), cert. denied, 516 U.S. 824 

(1995) ; Pro v. Hertz Equip. Rental Corp., 2013 U.S. Dist. LEXIS 86995 (D.N.J. 

June 30, 2013) (including amount of separately agreed upon attorneys fee as part 

of class recovery when calculating and determining fee award in connection with 

class action settlement); Lonardo v. Travelers Indemnity Co., 706 F. Supp. 2d 766, 

803 (N.D. Ohio 2010) (holding for purposes of calculating the percentage of the 

fee, agreed upon attorneys’ fee award of $4.6 million is part of the Total Class 

Benefit); In re Vitamins Antitrust Litig., No. 99-197, 2001 U.S. Dist. LEXIS 

25067, *56 (D.D.C. 2000) (holding attorneys’ fees that are borne by defendants 

and not plaintiffs are a valuable part of the settlement and fairly characterized as 

part of the common fund.”)

7 The Class Notice contains a hypothetical table of estimated “Part B” payments at 

§12 B.2 (Table 1). Part B of the POD is the allocation part under which the bulk of 

the Settlement Fund will be distributed among eligible class members based on 

severity of their respective asbestos disease. Table 1 presents a range of 

hypothetical Part B payment estimates based on (a) receipt and approval by the 

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All told, the aggregate size of the Fund created as well as the amount of the 

projected benefits to individual Class Members provide an excellent recovery for

such a large class that compares favorably to those being paid under most of the 

524(g) asbestos bankruptcy trusts. See Welch & Forbes, Inc. v. Cendant Corp. (In 

re Cendant Corp. Prides Litig.), 243 F.3d 722, 737 (3d Cir. 2001) (recognizing that 

“$100 million seems to be the informal marker of a ‘very large’ settlement”) 

(quoting In re Orthopedic Bone Screw Prod. Liab. Litig., No. 97-381, 2000 U.S. 

Dist. LEXIS 15980, *30 (E.D. Pa. Oct. 23, 2000)). Accordingly, this Court should 

find that Class Counsel has met the first factor in favor of granting this Petition.

2. The presence or absence of substantial objections by members 

of the class to the settlement terms.

On September 3, 2020, the Court approved Plaintiff’s Motion for 

Preliminary Approval of the Settlement. As of the date of this Petition’s filing, a 

substantial publication of the notice of the Settlement to the Class has been 

implemented through mail and various mass media channels.

8 Several national 

Settlement Fund of 7,500, 8,000 and 8,500 Part B claims; and (b) an asbestos 

disease distribution rate equal to the historical asbestos disease rates experienced 

by the Johns Manville Asbestos Trust (which are stated in the table for each 

disease compensation level).

8 Upon preliminary approval, BrownGreer, implemented the Notice Plan approved 

by the Court per the Preliminary Approval Order. BrownGreer has mailed notice 

packages to 40,000 potential class members and relatives of deceased class 

members, as well as to 48 lawyers who had represented at least one class member 

in the Underlying Lawsuits. BrownGreer also issued a press release that was 

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media and legal profession news outlets have reported on the Settlement, none of 

which so far has been critical of the proposed settlement in any way. Class Counsel 

have directly communicated broadly with members of the asbestos bar, including 

counsel known to have represented plaintiffs in the Underlying Lawsuits about the 

Settlement. During these outreach communications, Class Counsel received no 

criticism or expression of concern about the Settlement’s terms or on the amount of 

attorneys’ fee they would be requesting and described in the Class Notice. So far,

no Class Member has expressed any objection or complaint to the fee. Notably, 

BrownGreer has also given the mandatory CAFA notice to the Attorney General of 

the United States and appropriate state attorneys general. As of the date of the 

filing of this Fee Petition, not one of the CAFA notice recipients has objected to 

the Settlement.

In view of the size of the settlement here, the settlement structure and the 

size of the anticipated distributions, combined with the fact the class membership 

is defined as such that it is not conducive to a professional objector finding a class 

member to use as a means to mount an objection, Class Counsel do not anticipate 

that there will be any objections, let alone substantial ones, to either the final 

picked up by 93 sources with a collective audience of 119 million people. It further 

initiated a paid Google Ad search campaign as well as paid internet and print 

media ad campaign.

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approval of the Settlement or Class Counsel’s attorney fee requests. The 

Settlement Agreement provides eligible Class Members with substantial monetary 

compensation via a Plan of Distribution and claims system, which also given the 

passage of time since Underlying Lawsuits were dismissed or settled includes

means of helping Class Members find the proofs that they will need to file claims. 

The Settlement Agreement moreover assures Class Members that relevant 

evidence uncovered in this Action and other asbestos cases against Engelhard and 

BASF will remain in the public domain.

This factor supports Class Counsel’s fee request.

3. The skill and efficiency of the attorneys involved.

The third Gunter factor—the skill and efficiency of the attorneys involved—

is best judged by “the results obtained.” In re Safety Components Int’l Secs. Litig., 

166 F. Supp. 2d 72, 96 (D.N.J. 2001) (quoting Cullen v. Whitman Med. Corp., 197 

F.R.D. 136, 148, 149 (E.D. Pa. 2000)). Other factors that courts consider include 

the difficulties faced in the litigation, the speed and efficiency of the recovery, the 

experience and expertise of counsel, and the performance and quality of opposing 

counsel. Meijer, Inc. v. 3M, No. 04-5871, 2006 U.S. Dist. LEXIS 56744, *69-70

(E.D. Pa. Aug. 15, 2006).

As to skill, Class Counsel possess decades of experience in handling both 

class actions and bilateral complex litigation cases. They regularly represent 

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catastrophically injured clients and the families of deceased victims, including

many in asbestos disease claims. They have served in leadership roles in the 

prosecution of numerous leading-edge mass tort cases, such as the ovarian talc 

MDL (serving as the liaison counsel), the silicon breast implant litigation, the 

Vioxx litigation, the Fen-Phen diet drug litigation (serving as one of the national 

class counsel), numerous community level toxic chemical release cases as well as 

other MDL and New Jersey Multi-County product liability and Consumer Fraud 

Act cases. Members of CPR have been appointed by United States Bankruptcy 

Trustees overseeing federal bankruptcy proceedings to serve on official creditor or 

official tort claimant committees established in Chapter 11 proceedings, including 

those involving asbestos company bankruptcies. In addition to representing 

individuals, CPR’s lawyers currently and historically have represented 

governmental entities in major complex litigation matters involving suppression 

and misrepresentation claims as a major issue, such as New Jersey’s tobacco 

litigation and Pennsylvania’s MTBE gasoline pollution litigation. Indeed, Judge 

Phillips noted in his declaration that the putative Class has been “represented by 

highly experience, competent, and committed counsel.” CM/ECF # 621-5, ¶ 17.

The results of this case truly speak for themselves. CPR’s Christopher M. 

Placitella uncovered the alleged fraudulent concealment in 2009. Since then, Class 

Counsel have marshalled evidence through prelitigation investigation and 

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discovery efforts to prepare for trial. Ultimately, through Class Counsel’s

dedication, efforts and resolve, they obtained the $99.7 million settlement for the 

Class Members’ benefit. It is all the more extraordinary given that Class Counsel 

achieved this result in the face of the Defendants’ vigorous defense at each and 

every stage of the litigation.

BASF called upon the services of one of the nation’s premier law firms,

Kirkland & Ellis LLP, to defend it. Since taking on BASF’s defense Kirkland has 

applied the considerable legal talent of numerous experienced litigation and class 

action partners, associates and adjunct attorney specialists in BASF’s defense. The 

firm of Blank Rome LLP also participated in BASF’s defense, adding even more 

talent and resources to the considerable roster of attorneys defending it. Cahill was 

likewise very ably represented in its defense: first by the notable national law firm 

of Williams & Connolly LLP, and then later by the equally talented, experienced

and able firm of Troutman Pepper Hamilton Sanders LLP.

9

Yet in the face of this staunch defense and seemingly unlimited resources,

Class Counsel persevered and went forward to develop a case against Defendants 

sufficiently strong to survive multiple motions to dismiss and eventually reach the 

9 Individual defendants in this case were represented by equally esteemed counsel 

including Marino, Tortorella & Boyle, P.C., and McElroy Deutsch Mulvaney & 

Carpenter LLP, whose legal team included former New Jersey Supreme Court 

Justice Walter F. Timpone.

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significant settlement now before the Court. So, too, then, this factor weighs in 

favor of granting the requested fee award.

4. The complexity and duration of the litigation.

The fourth Gunter factor asks this Court to consider the complexity and 

duration of the litigation. In considering this factor, courts fairly look to see 

whether the fee sought is justified by the work involved in obtaining the 

settlement. There can be no question about the time, effort and substance of work 

performed by Class Counsel to achieve this settlement. The substance of Class 

Counsel’s legal work appearing on the court docket (both in the trial Court and the 

Third Circuit), and the substantial legal analysis underlying the record amassed by 

them, establish the high level of Class Counsel’s performance that was necessary 

to file this complex lawsuit over nine years ago and then persist in its successful 

prosecution culminating in this settlement.

The initial Complaint filed in this case reflects the breadth and scope of 

Class Counsel’s pre-suit investigation. The Complaint in both content and format 

was highly original given the unique facts of an alleged conspiracy to deny the 

presence of asbestos in Emtal talc and the resulting dismissal of thousands of 

Underlying Lawsuits over decades of time. Counsel set forth the claims in great 

particularity in a 157-page, 384 paragraph complaint that contained 43 exhibits. 

Following the filing of the Complaint, Defendants filed motions to dismiss in 

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response to which Plaintiffs filed the FAC (among other things adding Class 

Representative Chernick). Defendants again filed motions to dismiss, which the 

District Court granted. Undaunted, the Class Representatives appealed the 

dismissal, resulting in an unanimous published opinion in which the Third Circuit

reversed the District Court in large part, holding that: (1) New Jersey’s litigation 

privilege does not bar Plaintiffs’ fraud and fraudulent concealment claims in view 

of what was alleged to have occurred; and (2) the FAC adequately alleged the 

elements of fraud and fraudulent concealment under New Jersey law. Williams v. 

BASF Catalysts LLC, 765 F.3d 306 (3d Cir. 2014).

The Third Circuit’s opinion speaks to the array of procedural and substantive 

issues involved in this class action, which support Class Counsel’s fee award 

petition. For instance, the scope and applicability of the litigation privilege, just 

one of the questions on appeal, was a significant and heavily contested issue. As 

one commentator has observed, “[w]hether or not the litigation privilege insulates 

a lawyer from a claim of fraud is subject to some dispute[,]” with some courts, 

such as the Supreme Court of Texas finding that it does. Lester Brickman, Civil 

RICO: An Effective Deterrent to Fraudulent Asbestos Litigation?, 40 Cardozo L. 

Rev. 2301 (June 2019) (citing Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 480 

(Tex. 2015)). Thus, when Class Counsel prosecuted the appeal, its outcome before 

the Third Circuit was far from certain.

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Between the time Plaintiffs filed the Complaint and the Third Circuit entered 

its decision reviving their claims, Class Counsel pressed forward with their 

investigation outside of the litigation. Following remand from the Third Circuit,

Class Counsel prepared the Second Amended Complaint (“SAC”) to conform to 

the Third Circuit’s ruling and refine the claims. Like its predecessors, the SAC was 

also a detailed pleading which exhaustively outlined the alleged fraud in over 155 

pages with 43 exhibits. Upon the filing of the SAC, Defendants yet again filed 

Rule 12(b)(6) motions to dismiss. After another round of briefing, the Court per 

then Chief Judge Linares denied Defendants’ motions to dismiss in substantial 

part. At this point, the Defendants answered the SAC denying the claims against 

them and asserting numerous affirmative defenses.

With the close of pleadings in 2015, discovery then began in earnest.

10 Aside 

from the sheer volume of the discovery, which involved a time period of 

continuing events dating back to the 1970s, the legal issues raised, including the 

scope of discovery, the application of privileges and/or waivers of privilege and 

10 In this phase of the litigation, the parties exchanged over 300 pieces of meetand-confer correspondence, produced and reviewed hundreds of thousands of 

pages of documents and ESI equivalents, and completed 28 depositions. To resolve 

the accelerating discovery disputes between the parties, this Court appointed a 

SDM to oversee those proceedings. All told, in the time between the SDM’s 

appointment and this Court’s stay of the litigation so that the parties could resume 

mediation, the SDM presided over and decided more than 50 discovery motions.

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whether a science day was needed in a fraud case, were several, complex and 

novel. All of these novel issues were nuanced and rich with arguments on both 

sides regarding policy and fundamental fairness to each side.

An illustrative example of this was the parties’ dispute over the applicability 

of the crime-fraud exception, which if the Court agreed with Class Counsel’s

arguments, would have allowed Plaintiffs to discover evidence from Engelhard’s

attorneys that Defendants claimed as protected by the attorney-client privilege. The 

inquiry over the crime-fraud exception not only entailed a complex legal question, 

but also a significant evidentiary question that required presentation of evidence 

spanning nearly three decades. Further complicating the issue was Defendants’

second request in the case for a “Science Day”, which the SDM granted over the 

Class Representatives’ objections. The Class Representatives then sought an 

emergency stay from both the SDM and the Court and perfected an appeal of it, 

which was still pending when the case was stayed and the parties were ordered to 

return to settlement discussions under the Court’s auspices. 

Another complex issue for Class Counsel was the development of a fair, 

reasonable and efficient class-wide damage or recovery model. The problems 

included addressing the elements of damages and/or restitutionary relief available 

under New Jersey law and how, given the passage of time and the Class Members’

potential loss of proof from their Underlying Lawsuits, damages could be fairly 

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and formulaically allocated among them where the underlying cases sought 

damages for injuries of varying severity. Recognizing the critical elements for 

class certification, trial and settlement resolution of the case, Class Counsel 

engaged experts to assist them in determining a means of fairly assessing and 

devising an equitable means of allocating damages for the Class.

Seemingly simple issues such as how many people had over the years sued 

Engelhard alleging an Emtal talc asbestos injury defied an easy answer. While 

there were productions of legacy records and litigation documents during 

discovery, no single, definitive list of claims and claimants existed. To overcome 

this, and as explained in the Declaration of Mark Zabel, Director of Analytics at 

Verus, Class Counsel engaged Versus to estimate the class size, identify potential 

members of the Class, and assist Class Counsel in devising a plan of distribution 

that would be fair, equitable and efficient. To do so, he and his team of analysts at 

Verus developed a liability claim forecasting model, which required data 

acquisition from various sources (including the discovery from the Williams

Action and examination and analysis of numerous asbestos 524(g) trust 

distribution procedures), data entry and organization, and finally a statistical

analysis of the claims and injury distribution. CM/ECF # 621-8. The work also 

developed an asbestos injury severity point system based on comparable 524(g)

asbestos trust’s compensation matrixes. The resulting Plan of Distribution, which 

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is based upon and incorporates all this work, reflects the ingenuity, innovation and

success of Class Counsel and Verus in dealing with the complex and novel 

damages and allocations issues of this case brought about by the fact that the

alleged wrongs and harms involved in the Underlying Lawsuits had occurred 

decades ago.

Finally, the complexity of issues involved in this class settlement, and the 

significance of each issue to the parties led to nearly 14 months of negotiation

between the signing of a term sheet and the execution of the Settlement 

Agreement. While at times contentious, the parties were aligned in their effort to 

assure that each term of the Settlement Agreement properly protected the rights of 

the parties and the Class and fully satisfied the Federal Rules of Civil Procedure

and Third Circuit precedent.

5. The risk of nonpayment.

The risk of nonpayment should be “assessed ex ante from the outset of the 

case, not in hindsight.” In re Cendant Corp., 264 F.3d 201, 281 (3d Cir. 2001). The 

Williams Action stands out from many other class actions given its devotion to 

proving allegations of fraud and concealment going back decades in Underlying 

Lawsuits and the many challenging legal issues, which Defendants and their able 

counsel raised in defense during the litigation. Class Counsel undertook this unique 

action on a contingent fee basis and thereby assumed substantial risk that their 

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efforts would be unsuccessful. In re Diet Drugs, 553 F. Supp. 2d at 479. That risk 

supports the requested fee award. Hegab v. Family Dollar Stores, Inc., No. 11-

1206, 2015 U.S. Dist. LEXIS 28570, *32 (D.N.J. Mar. 9, 2015) (“Courts recognize 

the risk of non-payment as a major factor in considering an award of attorney 

fees.”).

From the outset of and continuing throughout this case, Class Counsel have 

faced significant risks, many of which could have resulted in Plaintiffs and the 

putative Class Members receiving no compensation whatsoever. From an 

evidentiary standpoint, nearly three decades had elapsed since the fraudulent 

scheme alleged in the SAC began during which time many of the plaintiffs in the 

Underlying Lawsuits died and considerable evidence was either lost or was not 

developed in the Underlying Lawsuits because those cases were deemed lost 

causes. That presented no small challenge. As Judge Phillips observes, without the 

ability to uncover evidence of the alleged fraud, Plaintiffs could not have pursued 

their claims here. CM/ECF # 621-5, ¶ 23. Class Counsel overcame these obstacles

and uncovered evidence many thought either did not exist or was no longer

available.

Substantively, Class Counsel also had to contend with Defendants’ threshold 

legal defenses in which they claimed Plaintiffs could not assert a cognizable legal 

claim for the conduct at issue. The risk of non-payment looked no greater than 

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when the District Court granted the Defendants’ motion to dismiss the FAC. 

Significant hurdles to recovery continued to arise as discovery unfolded following 

the Third Circuit’s revival and remand of the matter. Defendants vigorously denied 

the allegations in the SAC. In addition to denying that they committed the alleged 

fraud or that Emtal Talc contained injurious amounts of asbestos, Defendants 

contended that the Underlying Lawsuits were settled or dismissed for a variety of 

legitimate reasons. For example, Defendants contended that many plaintiffs could 

not prove they were exposed to Emtal Talc (so called product identification); that 

some plaintiffs could not prove they suffered a compensable asbestos-related injury; 

and that some of the plaintiffs’ claims were time-barred and so on. Defendants have 

also argued that Plaintiffs in this action who settled with Engelhard for minor 

amounts did not suffer monetary damages given evidence that many plaintiffs 

accepted similar settlement values from other talc defendants for whom plaintiffs

had evidence of asbestos contamination and exposure which Engelhard was 

denying. Importantly, Defendants have denied that the documents at the heart of 

this claim prove that Emtal Talc contained asbestos in sufficient amount to cause 

harm to humans or, in some cases, that those testing results were scientifically 

reliable in the first instance. This settlement puts to rest these considerable issues 

that could have resulted in the failure of Class Counsel’s efforts. So, as with 

preceding Gunter factors, this factor supports Class Counsel’s fee request.

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6. The Amount of time that Plaintiffs’ Counsel devoted to the case.

As of the date of this filing, the lawyers and professional staff of Cohen, 

Placitella & Roth have recorded 21,799.9 hours over the decade of this case,

though frankly, Class Counsel believe this time is understated. Not surprisingly, 

Class Counsel spent many days, late nights, weekends and holidays devoted to this 

case, some of which was not recorded as they concentrated exclusively on the 

substance of the work and meeting deadlines than just logging time. The recorded 

time, however, is substantial. It includes the time members of CPR spent on the 

investigation and research of the facts and the development of the legal theories 

pled in the Class Action Complaint, FAC and SAC; the time spent on legal 

research and drafting that went into responding to several rounds of motions to 

dismiss, briefing to the Third Circuit, and the myriad of substantive discovery 

motions, the Class Certification Motion (which the SDM ordered be filed) and 

Plaintiffs’ crime-fraud motion; and the time spent litigating disputes and 

completing the extensive discovery itself. Class Counsel’s recorded time also 

includes the significant amount of time committed to the multiple rounds of 

mediation (many spanning multiple days), negotiating the Term Sheet, the 

Settlement Agreement itself, the collateral agreements supporting the Settlement 

plan, and developing a Plan of Distribution and Notice Plan that was fair,

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reasonable and capable of gaining both class member support and passing this 

Court’s scrutiny.

We also note that the amount of Class Counsel’s time devoted to this matter 

will continue to accrue as they perform their required duties and tasks under the 

Settlement Agreement and the Plan of Distribution.

This factor amply supports Class Counsel’s requested fee award.

7. Fee awards in similar cases.

The seventh factor requires the Court to compare the requested fee award to 

other common fund cases. Cendant, 243 F.3d at 737. The parties negotiated Class 

Counsel’s fee to be paid by the Defendants in addition to the Settlement Fund and 

Cost Fund only after agreeing to the amount of the fund that would compensate the 

Class. And so, the fee, and the total amount of money to be paid by the Defendants 

is deemed for purposes of court review to be a constructive common fund and 

included in calculating the percentage-of-recovery. Dewey v. Volkswagen 

Aktiengesellschaft, 558 Fed. Appx. 191; In re General Motors Corp. Pick-Up 

Truck Fuel Tank Products Liab. Litig., 55 F.3d at 821; Pro v. Hertz Equip. Rental 

Corp., 2013 U.S. Dist. LEXIS 86995. Here, Class Counsel’s fee amounts to 22.6%

of the $99.7 million in benefits that Class Counsel secured for the Class. This

percentage fits well within the parameters for class action fee awards approved by 

the Third Circuit, especially when viewed in the context of the effort undertaken in 

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this unique and complex case and the compensation and other benefits the 

settlement provides to the Class.

The Third Circuit has observed that fee awards of 25-33% are appropriate.

See In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 303 (3d Cir. 2005) (noting that 

the district court did not abuse its discretion in relying on studies, which found fee 

awards between 25-33%). Cases within the Third Circuit confirm this. See, e.g., 

Rossini v. PNC Fin. Servs. Grp., Inc., No. 18-370, 2020 U.S. Dist. LEXIS 113242, 

*65 (W.D. Pa. June 26, 2020) (approving fee request of 25%); SEB Inv. Mgmt. AB 

v. Endo Int’l, PLC, No. 17-3711, 2019 U.S. Dist. LEXIS 215507, *10 (E.D. Pa. 

Dec. 13, 2019) (noting that “fee awards commonly awarded in similar cases . . . 

range from 19% to 45%”); Lincoln Adventures LLC v. Certain Underwriters at 

Lloyd’s, No. 08-0235, 2019 U.S. Dist. LEXIS 17197, *24-25 (D.N.J. Oct. 3, 2019)

(approving fee award of one-third of $21,950,000 cash component of the 

settlement fund); In re Flonase Antitrust Litig., 951 F. Supp. 2d 739, 751 (E.D. Pa. 

2013) (awarding a one-third fee on a $150 million settlement); In re Processed 

Eggs Prods. Antitrust Litig., MDL No. 2002, 2012 U.S. Dist. LEXIS 160764 (E.D.

Pa. Nov. 9, 2012) (approving fee of 30% of a $25 million fund); Bradburn Parent 

Teacher Store, Inc. v. 3M, 513 F. Supp. 2d 322, 342 (E.D. Pa. 2007) (awarding 

attorney’s fees of 35% of a $81 million common fund); In re Rite Aid. Corp. Secs. 

Litig., 362 F. Supp. 2d 587 (E.D. Pa. 2005) (approving fee award of 

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$31,660,328.75 or 25% on a fund of $126,641,315). At 22.6%, the fee request here

falls well below the fees awarded in similar cases.

When viewed in terms of the risks undertaken in bringing this Action and 

the quality and quantity of work performed by Class Counsel in meeting a most 

vigorous defense over nine years, the request for a fee that is 22.6% of the financial 

benefit achieved on a common fund basis, is entirely reasonable and, respectfully, 

should be approved.

8. The value of benefits attributable to the efforts of Class Counsel 

relative to the efforts of other groups.

The eighth factor of the Gunter/Prudential analysis assesses the degree to 

which the efforts of Class Counsel have been aided or augmented by the actions of 

others such as government prosecutors, similar private cases, and agency litigation 

to the instant private litigation.” In re Diet Drugs, 582 F.3d at 544. Class Counsel

clears this bar with ease because they had neither the benefit of a government 

investigation nor another similar lawsuit for fraudulent concealment. Class 

Counsel had no roadmap for nor assistance in this litigation. The results achieved 

are based entirely on the years of dedication and skills of Class Counsel in

uncovering the facts and devising the legal framework to litigate this case and 

achieve this settlement.

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9. The percentage fee that would have been negotiated had the case 

been subject to a private contingent fee arrangement.

A private contingent fee agreement at the time Class Counsel was retained 

would have far exceeded the percentage of fee award requested here. In re AT&T 

Corp. Sec. Litig., 455 F.3d 160 (3d Cir. 2006). Courts, including this one, within 

the Third Circuit had found that a 33% private contingency fee would have been 

reasonable. Schuler v. Meds. Co., No. 14-1149, 2016 U.S. Dist. LEXIS 82344, 

*28-29 (D.N.J. June 24, 2016); In re NFL Players’ Concussion Injury Litig., MDL 

No. 2323, 2018 U.S. Dist. LEXIS 57798, *18 (E.D. Pa. Apr. 5, 2018). With Class 

Counsel only seeking a fee award of 22.6%, the ninth Gunter factor weighs in 

favor of approval.

10. The Settlement Agreement contains many innovative 

features.

One of the prudential factors a court may take into consideration here is 

whether the Settlement Agreement contains innovative terms. This factor favors

approval of Class Counsel’s Fee Petition. NFL, 2018 U.S. Dist. LEXIS 57798, 

*18-19 (recognizing that “[p]erhaps the strongest favor weighing in favor of the 

acceptance of [the NFL] Class Counsel’s fee request is the final factor that takes 

into account the innovative terms of this Settlement Agreement.”).

As mentioned above, one of the troublesome circumstances confronting 

Class Counsel, through no fault of Class Members, in both litigating and settling 

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this case were the difficult interrelated facts that: (1) the Underlying Lawsuits are 

decades old; (2) many, if not most, of them had been fully concluded and the

claimant’s law firm’s files closed; (3) due to the passage of time medical, legal and 

employment records are unavailable for a host of reasons; and (4) frequently many 

of the original plaintiffs (and percipient witnesses) in the suits are now deceased or 

otherwise hard to locate. In addition, the Underlying Lawsuits were asbestos 

personal injury suits with various levels of disease and resulting harm that ranged 

from non-malignant asbestosis to fatal mesothelioma. Still, due to Class Counsel’s

and their consultants’ collective persistence, ingenuity and work effort, they were 

able to craft a fair and reasonable Plan of Distribution that ably addresses and 

overcomes or mitigates these problems through its innovative allocation 

methodology, the acceptance of prior bankruptcy trust injury adjudications, 

providing a searchable litigation document archive, and applying several 

presumptions derived from the Underlying Lawsuits records to assist the claimants, 

who often are heirs of some degree to the original plaintiffs. 

The Plan’s Summary, §2, describes its innovative structure:

The Plan establishes three compensation programs to which Settlement 

Class Members meeting defined eligibility criteria may apply for 

compensation award payments (each program being referred to as a 

“Part”). The Settlement Fund’s Part A program provides Base 

Compensation Payments to Settlement Class Members who can 

establish that the claimant or claimant’s decedent filed an Underlying 

Lawsuit against Engelhard/BASF during the Class Period which 

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asserted in good faith an asbestos injury caused by alleged exposure to 

Emtal Talc (“Base Payments”).11 The Plan’s Part B program provides 

compensation payments to Settlement Class Members who satisfy Part 

A and also present sufficient evidence of an asbestos bodily injury 

sustained by them (or if applicable, their decedent).12 The Plan’s Part C 

program establishes an Extraordinary Injury Fund or “EIF” from which 

the Settlement Trustee may, in exceptional cases, make a discretionary 

supplemental compensation payment to mesothelioma injury 

Claimants subject to eligibility guidelines and limitations as set forth in 

this Plan.

Through the POD’s three sub-fund structure and claims administration 

procedures and the ability to establish a qualifying Part B injury through a prior

Qualified Asbestos Trust certification (which the Administrator will assist the 

11 A Part A payment will be up to $500 depending on the number of eligible claims 

received. Each Injured Person in the underlying suit (the Primary Claimant under 

the Plan) is eligible for one payment and if there was one or more derivative 

claimants involved in the Underlying Lawsuit (e.g., a spouse or a deceased 

plaintiffs wrongful death beneficiaries), then a second Part A payment of equal 

amount.

12 Class Members who meet the requirements for a Plan B Supplemental 

Compensation award will receive a proportionate share of the entire $59.75 

Million Part B sub-fund based upon a system of points awarded for the asbestos 

disease sustained and diagnosed. The amount of the Part B points and 

compensation payments vary based upon the type and severity level of asbestos 

disease injury sustained and medically diagnosed. Table 1 in the POD, reproduced 

in Appendix 1 to the memorandum, describes the point system. Another innovative 

procedure is how the asbestos injury can be proved. The medical injury element 

can be established either by submitting medical records and reports or through a 

certification of adjudicated asbestos injury from one of eight Qualified Asbestos 

Trusts (“QAT”). If the claimant elects to proceed by QAT certification, the Claim 

Administrator on behalf of the claimant will obtain and accept the certification 

from the QAT as part of the claims administration.

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claimant in securing if it exists), practically all eligible Settlement Class Member 

making a timely Claim Submission will receive some degree of meaningful 

compensation from the Settlement Fund. C.f., NFL, 2018 U.S. Dist. LEXIS 57798, 

*18-19 (finding the Settlement innovative as it “provides a complex matrix for 

determining Monetary Award amounts”). For these reasons, this factor also favors 

approval of Class Counsel’s Fee Request.

B. A lodestar cross-check confirms that this Fee Request is 

reasonable.

A lodestar cross-check is not required in the Third Circuit, Cendant, 404 

F.3d at 183 n.4, particularly where, a Court recognizes the fee request appears 

reasonable. Smith, 2005 U.S. Dist. LEXIS 25116, *12. This Court nonetheless can 

use the lodestar method to cross-check the percentage fee award for 

reasonableness. Rite Aid, 396 F.3d at 305 (citing In re Prudential, 148 F.3d at 

333). Again though, the lodestar cross-check is not mandatory and “does not trump 

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

“The lodestar award is calculated by multiplying the number of hours 

reasonably worked on a client’s case by a reasonable hourly billing rate . . . .” Id. at 

305. The cross-check “is performed by dividing the proposed fee award by the 

lodestar calculation, resulting in a lodestar multiplier.” Sullivan v. DB Investments, 

Inc., 667 F.3d 273, 330 n.61 (3d Cir. 2011) (quoting AT&T Corp., 455 F.3d at 

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164). The purpose of the multiplier is “to account for the contingent nature or risk 

involved in a particular case.” Id. It is supposed to account for the “particular 

circumstances” of a case, “such as the quality of representation, the benefit 

obtained for the class, [and] the complexity and novelty of the issues presented.”

Id. Furthermore, because the lodestar cross-check is “not a full-blown lodestar 

inquiry,” the evaluation can be based on summaries and less precise formulations.”

Rite Aid, 396 F.3d at 307 n.16.

Here, as of the filing of this Petition, the lawyers and professional staff of 

Cohen, Placitella & Roth have devoted 21,799.9 hours to this matter, with Class 

Counsel having recorded the following number of hours:

13

13 The hours reported here do not include those for Jeffrey M. Pollock, Esq. of 

Fox Rothschild, LLP who was involved in the prosecution of the case, including 

the appeal before the Third Circuit. 

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Christopher M. Placitella 4,321.2 hours

Stewart L. Cohen 1,012.9 hours

Harry M. Roth 1,695.7 hours

Robert L. Pratter 1,536.6 hours

Michael Coren 4,530.0 hours

Jared M. Placitella 3,644.1 hours

Eric S. Pasternack 2,277.7 hours

Other CPR attorneys and professional 

staff14

2,781.7 hours

For purposes of the lodestar check, “[a] reasonable hourly rate is the market 

rate prevailing in the relevant legal community.” Doe v. Terhune, 121 F. Supp. 2d 

773, 781 (D.N.J. 2000). To determine a reasonable hourly rate, the Court must 

“assess the experience and skill of the prevailing party’s attorneys and compare 

their rates to the rates prevailing in the community for similar services by lawyers 

14 This includes other members, associates, law clerks, and staff from Cohen, 

Placitella & Roth, who over the years have worked on the matter. A specific

itemization of hours worked by these lawyers and staff members is documented in

Addendum A of the Declaration of Christopher M. Placitella.

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of reasonably comparable skill, experience, and reputation.” Rode v. Dellarciprete, 

892 F.2d 1177, 1183 (3d Cir. 1990).

The hourly rates here range from $925 an hour for the most senior partners

to $190 an hour for legal assistants:

Attorneys with at least 25 years of 

experience.

$925/hour

Attorneys with 15-24 years of 

experience.

$850/hour

Attorneys with 5-14 years of 

experience.

$700/hour

Attorneys with 3-4 years of experience. $475/hour

Attorneys with 1-2 years of experience. $375/hour

Paralegals and Law Clerks. $309/hour

Legal Assistants $190/hour

These rates are reasonable, and in line with the prevailing rates in the Third 

Circuit. See NFL, 2018 U.S. Dist. LEXIS 57798, *21 (finding that because the 

billing rates submitted by partners in the case ranged from $500 to $1,350 per 

hour, a blended rate of $623.05 per hour should be used); In re ViroPharma Inc. 

Sec. Litig., No. 12-2714, 2016 U.S. Dist. LEXIS 8626, *53-54 (E.D. Pa. Jan. 25, 

2016) (hourly billing rates from four years ago for partners ranged from $610 to 

$925 with the range for other attorneys going from $350 to $750 an hour); In re 

Schering-Plough Corp., No. 08-397, 2013 U.S. Dist. LEXIS 147981 (D.N.J. Aug. 

28, 2013) (finding from rates 7 years ago that a lodestar cross-check was 

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reasonable with senior partners having charged hourly rates of $975 and the 

partners responsible for the day-to-day litigation charging between $775 to $875 an 

hour); In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 1871, 

2012 U.S. Dist. LEXIS 180561, *24-25 (E.D. Pa. Oct. 19, 2012) (“According to a 

2011 sampling of nationwide billing rates submitted by the Fee Committee, of 

which this Court takes judicial notice, partners at GSK’s Philadelphia-based firm 

(Pepper Hamilton) bill up to $825 per hour, and partners at other Philadelphia law 

firms have similar top hourly rates ($900 at Cozen O’Connor, $875 at Duane 

Morris, $750 at Saul Ewing, and $725 at Fox Rothschild”).

In then multiplying the hourly rates of Class Counsel by their hours worked,

the lodestar is $17,665,091.50:

Christopher M. Placitella $3,997,110.00

Stewart L. Cohen $936,932.50

Harry M. Roth $1,568,522.50

Robert L. Pratter $1,421,355.00

Michael Coren $4,190,250.00

Jared M. Placitella $2,550,870.00

Eric S. Pasternack $1,594,390.00

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Applying this lodestar to the current hours yields a multiplier of 1.27 for 

Cohen, Placitella & Roth. With the Third Circuit having recognized that 

multipliers “ranging from one to four are frequently awarded in common fund 

cases when the lodestar method is applied,” the resulting lodestar multiplier here of 

1.27 is well within the norm in the Third Circuit; and indeed, at the low end. And 

as the proceedings continue forward to the Final Approval stage and distribution

approval stage, the lodestar will increase and the resulting multiplier decline.

All in all, applying a lodestar cross-check demonstrates the request fee is fair 

and reasonable and should be approved in the amount requested.

C. Class Counsel’s expenses are adequately documented and were 

reasonably and appropriately incurred.

A “private plaintiff, or plaintiff’s attorney, whose efforts create, discover, 

increase, or preserve a fund to which others also have a claim, is entitled to recover 

from the fund the costs of his litigation[.]” In re Diet Drugs, 582 F.3d at 540. As 

this Court has observed, class counsel are “entitled to reimbursement of expenses 

that were adequately documented and reasonably and appropriately incurred in the 

prosecution of the class action.” In re Safety Components, Inc. Secs. Litig., 166 

F.3d 2d 72, 108 (D.N.J. 2001).

Class Counsel will at the Fairness Hearing request reimbursement of their 

costs in an amount of $1,200,000 based on what they expended to date and forecast 

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they will incur in the future in attending to the Settlement as Class Counsel. This 

amount will not come out of the $72.5 million settlement fund. Rather, as Judge 

Phillips noted in his declaration, only after the parties came to an agreement “on 

the other material terms of the settlement, including the creation of a $72,500,000 

Settlement Trust Fund[,]” did the parties first negotiate over the “amount of 

attorneys’ fees and expenses to be reimbursed” by BASF and Cahill. CM/ECF # 

621-5, ¶ 36. And, as Judge Phillips emphasized, “Defendants agreed to not object 

to an award of attorneys’ fees and reasonable costs up to $22,500,000 and 

$1,200,000, respectively, that is in addition to the $72,500,000 Settlement Trust 

Fund.” Id.

Class Counsel’s expenses are amply documented, Addendum B to the 

Declaration of Christopher M. Placitella, and were moreover necessary given the 

vigorous defense mounted by BASF and Cahill, and their extensive resources.

D. Incentive awards for the Class Representatives.

Class Counsel request that incentive awards of $50,000 for each of the six 

Class Representatives—$5,000 for each of the years they served as Class 

Representative—be awarded. Such “awards are not uncommon in class action 

litigation and particularly where . . . a common fund has been created for the 

benefit of the class.” Sullivan, 667 F.3d at 333 n.65. As the Third Circuit has 

explained, incentive awards are meant “to compensate named plaintiffs for the 

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services they provided and the risks they incurred during the course of the class 

action litigation[.]” Id.

Courts in the Third Circuit have routinely approved incentive awards for 

class representatives. See NFL, 2018 U.S. Dist. LEXIS 57798, *25 (approving 

incentive awards of $100,000 for each of the class representatives); Schwartz v. 

Avis Rent a Car Sys., LLC, No. 11-4052, 2016 U.S. Dist. LEXIS 80387, *43 

(D.N.J. June 21, 2016) (approving incentive awards “given the number of years in 

which [the class representatives] have been involved in this litigation”); Cullen v. 

Whitman Med. Corp., 197 F.R.D. 136, 145 (E.D. Pa. 2000) (“[c]ourts routinely 

approve incentive awards to compensate named plaintiffs for the services they 

provided and the risks they incurred during the course of the class action 

litigation.”).

The Class Representatives here are deserving of incentive awards. Five of 

the six Class Representatives initiated this litigation with the filing of the Class 

Action Complaint on March 28, 2011—over nine years ago. The sixth Class 

Representative, Mrs. Roseanne Chernick, joined in the matter with the filing of the 

First Amended Complaint on August 3, 2011. Since that time, the Class 

Representatives have been actively involved in all phases of this litigation.

CM/ECF # 621-13, -17, -18, -19, -20, -33, Class Representative Declarations. They 

did what courts expect of a class representative. They diligently oversaw the 

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litigation. They reviewed and searched for and provided information to Class 

Counsel for discovery. They prepared for and attended depositions. They 

responded to multiple sets of interrogatories, requests for documents, and requests 

for admissions. They also regularly conferred with Class Counsel on the status of 

the litigation and strategy through in person meetings, correspondence, and phone 

calls. And they were involved in key rounds of settlement negotiations leading up 

to the settlement.

Class Representatives have contributed valuable services to the Class and 

should be compensated accordingly. The amount requested here for the Class 

Representatives is particularly warranted given the amount of relief obtained 

($99.7 million), their active and necessary role in the litigation, and the number of 

Class Members who stand to benefit from the work of the Class Representatives.

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IV. Conclusion

For the foregoing reasons, the Court should grant the Petition and (1) award 

Class Counsel the full $22.5 million in attorneys’ fees and $1,038,300.27 in

reimbursable expenses that Defendants have agreed to pay over and separate from 

the $72.5 million Settlement Fund; and (2) award the Class Representatives 

incentive awards of $50,000 each for their contribution to achieving this long 

overdue and substantial recovery for the members of the Class.

 COHEN, PLACITELLA & ROTH, P.C.

 /s/ Christopher M. Placitella

 Christopher M. Placitella, Esq.

 (NJ Atty #: 027781981)

 Michael Coren, Esq.

 (NJ Atty #: 024871979)

 Jared M. Placitella, Esq.

 (NJ Atty #: 068272013)

 Eric S. Pasternack, Esq.

 (NJ Atty #: 015132011)

 127 Maple Avenue

 Red Bank, NJ 07701

 (732) 747-9003

 Attorneys for Plaintiffs and the Putative Class

Dated: October 20, 2020

Case 2:11-cv-01754-BRM-ESK Document 628-1 Filed 10/20/20 Page 61 of 61 PageID: 49299