If my firm has already submitted common benefit time, do we still need to submit a Fee Application?

Yes.  All firms applying for attorneys’ fees from the Common Benefit Fund must submit both a Fee Application and a Time Report.  MDL Participating Counsel who have submitted their common benefit time through June 2021 pursuant to the Fee and Expense Order have met the requirement for submitting a Time Report but still need to submit a Fee Application.

What are the common benefit orders that have been entered in the MDL?

• Order Regarding Plaintiff Attorneys’ Fees and Expenses Protocol for Work Performed and Expenses Incurred (“Fee and Expense Order”) (Doc. 358)

• Order to Establish Qualified Settlement Fund, Appoint Panel of Common Benefit and Contingency Fee Fund Arbiters, Approve Fee Fund Allocation and Distribution Process, and Approve Common Benefit Cost Payment and Assessment (“Fee Panel Order”) (Doc. 3828)

• Order Regarding Fee Panel, Fund Administrator, and Assistants (“Fee Panel Assistants Order”) (Doc. 4030)

• Order Appointing Fee Committee and Addressing Related Matters (“Fee Committee Order”) (Doc. 4286)

• Order Establishing Application Protocols for Reimbursement of Common Benefit Attorneys’ Fee Under the Janssen and Distributor Settlement Agreements (“Common Benefit Fee Protocol Order”) (Doc. 4344)

What is considered common benefit time?

Under the Settling Distributors & Janssen Settlement Agreements, common benefit time is time for work performed for the common benefit of all subdivisions or Tribal Nations.  The common benefit orders (listed in FAQ #2 above) and Exhibit R to the Settlement Agreements provide additional guidance on time that may or may not be common benefit.

What if I’m not sure which Time Category Code to use?

Appendix B to the Time Billing Guide contains all of the Time Category Codes and examples for each Code.  These codes are also listed in the Fee and Expense Order.  Fee Applicants should review both documents and determine the best Code to use for each time entry.  Fee Applicants will not be penalized for using an incorrect Code.  However, the Auditor will be reviewing each time entry to ensure, among other things, the correct Code was used.  The Fee Panel will receive a report for each Fee Applicant comparing the Code submitted by the Fee Applicant to the Code as corrected by the Auditor for each time entry.  Thus, Fee Applicants are encouraged to use the most applicable Code and not exaggerate the work performed by using an incorrect Code.  For example, don’t enter “18. Trial Preparation” for time that is actually “14. Document Review Tier 1.”

My firm is MDL Participating Counsel and we have previously submitted time for work on a manufacturer defendant for which we already received attorneys’ fees.  Do we need to withdraw that time?

You will not need to withdraw the time.  However, you will need to disclose in your Fee Application the compensation your firm has received or expects to receive related to any Opioid litigation against any defendant.

The time for my common benefit work was submitted to the MDL Auditor by my previous firm, Law Firm A, but I have since left that firm to join Law Firm B.  Can the time submitted for my work while at Law Firm A be considered in Law Firm B’s Fee Application?

Common benefit time may not be claimed by more than one Fee Applicant.  In the event a firm member chooses to have his or her previously submitted time transferred to a new firm, the firm member must submit to the Fee Panel an agreement specifically detailing the firm change, and it must be signed by all affected parties.  In the example above, authorized partners from Law Firm A and Law Firm B would have to sign an agreement clearly stating exactly which common benefit time entries are to be transferred to Law Firm B, identified by date and name of firm member.

My firm is MDL Participating Counsel and I’m concerned that some of our previously submitted time is not in compliance with the requirements set forth in the common benefit orders.  Can I amend our time and resubmit it?

No!  Do not resubmit your time.  You will receive notice during the audit process of those time entries that are not in compliance and will be provided an opportunity at that time to amend them.  Do not resubmit your time.

My firm is submitting time on the Distributors/Janssen Time Report.  Does it need to be broken down by month, year, or firm member?

No.  Please submit all non-MDL time for your firm on one Time Report.

For non-MDL time that hasn’t previously been submitted, is there a time frame/date range that will be considered?

There is not a specific date range that will be considered, provided that any time submitted for work after June 2021 is limited to only that time spent on implementation of the Settlement Agreements.  

What is the deadline to submit work performed after June 2021 related to implementation of the Settlement Agreements, and which time sheet do we use for those submissions?

If you are non-MDL Participating Counsel, you should submit this time on the Distributors/Janssen Time Report, no later than June 15, 2022.  If you are MDL Participating Counsel and your work on implementation of the Settlement Agreements was not pursuant to your duties as MDL Participating Counsel, you should submit this time on the Distributors/Janssen Time Report, no later than June 15, 2022.  If you are MDL Participating Counsel and your work on implementation of the Settlement Agreements was pursuant to your duties as MDL Participating Counsel, you should submit this time on the MDL Time & Expense Report, no later than May 2, 2022.