## Facts

- Federal products-liability suits involving the prescription drug Vioxx (rofecoxib) were centralized as an MDL in the Eastern District of Louisiana.
- Vioxx was FDA-approved in 1999 and withdrawn in 2004 after clinical-trial data indicated increased risk of cardiovascular thrombotic events, including heart attack and ischemic stroke.
- Thousands of plaintiffs alleged cardiovascular injuries (including heart attack, stroke, and sudden cardiac death) and asserted products-liability and related claims against the manufacturer.
- Bellwether trial results contributed to negotiations producing a global settlement program funded at $4.85 billion.
- The court, acting sua sponte, entered an order capping contingent fees for lawyers representing claimants in the settlement program at 32% plus reasonable costs.
- A consortium of plaintiffs’ attorneys moved to reconsider or revise the cap, arguing it interfered with attorney–client contracts, exceeded the court’s authority, and was unfair given counsel’s risk and effort.
- To protect affected claimants’ interests, the court appointed an independent clinic to oppose the reconsideration motion; the Fifth Circuit denied a mandamus challenge to that appointment.
- After briefing and oral argument, the court ruled on the motion for reconsideration.

## Issues

1. Whether an MDL court administering a large, court-managed settlement program has authority to regulate and cap contingent-fee contracts between claimants and privately retained counsel.
2. Whether a 32% plus costs cap is reasonable and fair in light of the litigation’s risks, counsel’s work, and the settlement program’s structure and claimant recoveries.
3. Whether imposing a fee cap impermissibly impairs attorney–client contracts or violates due process.
4. Whether, and to what extent, the cap required tailoring for particular categories of representation or individualized circumstances.

## Decision

- The motion for reconsideration was granted in part and denied in part.
- The court reaffirmed its authority to cap contingent fees in connection with administration of the Vioxx settlement program.
- The court maintained a general ceiling of 32% plus reasonable costs as the default cap for participating claimants’ counsel.
- The court made limited modifications to the fee-cap order to address specific applications and equitable concerns, without vacating the cap wholesale.

## Legal Principles

- A federal court overseeing distribution of a large, court-managed aggregate settlement may exercise inherent and supervisory authority to ensure attorneys’ fees charged to participating claimants are reasonable.
- Even outside a certified Rule 23 class action, a settlement program with class-like characteristics and judicial administration may justify judicial review and adjustment of contingent-fee arrangements to protect dispersed claimants.
- Attorney–client fee contracts are subject to judicial oversight when enforcement would conflict with the court’s duty to protect claimants and the integrity of court-supervised settlement administration.
- Contingent-fee limits may be assessed against customary benchmarks and the need to preserve meaningful net recoveries for injured claimants, while still compensating counsel for risk and work.
- Procedural fairness concerns are satisfied where affected interests receive notice and an opportunity to be heard, including through appointment of representation for claimants whose recoveries are directly affected by fee regulation.

## Conclusion

The court largely sustained a global 32% contingent-fee cap (plus reasonable costs) for counsel representing claimants in the Vioxx settlement program, holding that the MDL court’s supervisory role permitted fee regulation to protect claimants, while permitting limited adjustments to the cap’s application in particular circumstances.


In re Vioxx Prods. Liab. Litig., 650 F. Supp. 2d 549 (E.D. La. 2009)