## Facts

- Multidistrict litigation consolidated thousands of federal cases alleging that the prescription drug Vioxx (rofecoxib) caused cardiovascular injuries, including heart attacks and ischemic strokes.
- Vioxx was FDA-approved in 1999 and was withdrawn from the market in 2004 after clinical-trial data indicated increased cardiovascular risk.
- The parties reached a court-supervised global settlement totaling $4.85 billion, covering many federal MDL cases and participating state-court cases through a settlement program.
- As interim settlement payments were scheduled to begin, the court addressed attorneys’ fee practices for lawyers representing claimants enrolled in the settlement program.
- Some claimants’ contingency-fee contracts provided for percentages (e.g., 40% or more) that, combined with possible common-benefit assessments, risked reducing claimant recoveries.

## Issues

1. Whether an MDL court administering a global settlement program may regulate and cap private contingency-fee agreements between claimants and their counsel.
2. What maximum contingency-fee percentage is reasonable for counsel representing settlement-program claimants given the litigation’s scope, risk, and settlement structure.
3. Whether common-benefit fees for court-appointed leadership work should be paid in addition to, or out of, the capped individual attorneys’ fee portion.

## Decision

- The court held it had authority to supervise and limit contingency fees for counsel representing claimants enrolled in the settlement program.
- The court capped individual attorneys’ fees at 32% of each claimant’s total award, plus reasonable costs.
- The court ordered that any common-benefit fee award would be paid from the attorneys’ fee portion within the 32% cap, so no claimant would pay more than 32% of the total award in attorneys’ fees.
- The court reserved for later proceedings the determination and allocation of common-benefit fees and costs after notice and an opportunity to be heard.

## Legal Principles

- In complex aggregate litigation administered by a federal court, the court may use its supervisory and equitable authority to review and limit attorneys’ fees to protect claimants and the settlement’s integrity.
- A court may treat a court-administered mass settlement as analogous to a common-fund arrangement for purposes of regulating fee reasonableness, even absent class certification.
- Attorneys’ fees must be reasonable in light of factors including litigation risk, complexity, work performed, results obtained, and the effect of fees on claimant recoveries.
- To prevent duplicative fee burdens, common-benefit fees may be structured to come from the capped attorneys’ share rather than being imposed as an additional percentage on claimants’ recoveries.

## Conclusion

The court, acting in its supervisory role over the settlement program in a large MDL, imposed a uniform 32% cap (plus reasonable costs) on contingency fees for enrolled claimants and required any common-benefit fees to be paid from within that cap to prevent cumulative fee charges to claimants.


In re Vioxx Prods. Liab. Litig., 574 F. Supp. 2d 606 (E.D. La. 2008)