Opinion
19-cv-02573-EMC 2086
08-16-2023
IN RE HIV ANTITRUST LITIGATION.
ORDER RE SUPPLEMENTAL BRIEFING
EDWARD M. CHEN UNITED STATES DISTRICT JUDGE
The Court has reviewed the DPPs' motion for preliminary approval and hereby orders that the parties file supplemental briefing addressing the issues below. The supplemental briefing shall be filed by August 23, 2023. A joint brief is strongly preferred; if one party does not take a position on an issue or the parties have divergent views on an issue, that may be reflected in the joint filing.
A. Number of Class Members
At the time of class certification, the DPPs' expert, Dr. Lamb, opined that there were 78 members in the Truvada Class and 51 members in the Atripla Class. See Docket No. 1388 (Order at 73). Are these numbers still accurate? Is there overlap?
B. Average Payout
It appears that the net settlement fund will be approximately $164,010,000 (i.e., after deductions from the gross settlement fund are made for settlement administration expenses, attorneys' fees, litigation expenses, and an incentive award). What is the average payout for a class member generally (when both classes are considered)? What is the average payout for a member of the Truvada Class? What is the average payout for a member of the Atripla Class?
C. Escrow Expenses
Is it correct that there will be no deduction from the gross settlement fund for escrow expenses? See Sett. Agmt., Ex. I (Exhibit 2 of the Escrow Agreement indicating that fees of the custodian/escrow agent are waived).
D. Attorneys' Fees, Litigation Expenses, and Incentive Aw ard
1. Settlement Agreement Terms
It appears that the settlement agreement itself does not make any reference to attorneys' fees, litigation expenses, and/or an incentive award. Does the settlement agreement need to be modified to reflect the representations made in the motion for preliminary approval regarding the maximum amount of each - especially since a class member may review the terms of the settlement agreement?
2. Amount of Attorneys' Fees, Litigation Expenses, and Incentive Award
The DPPs shall provide evidence to support the maximum amounts requested.
For attorneys' fees, the DPPs shall also provide evidence in support of the asserted lodestar and further shall estimate how much time was spent on each major litigation task.
E. Second Opportunity to Opt Out
Given the amount of the gross settlement fund, should class members be given a second opportunity to opt out? What is the potential impact of a second opportunity to opt out (other than that already identified by the parties, i.e., the possible reduction in the amount of the gross settlement fund and/or the opportunity for Gilead to terminate the settlement)? For instance, would giving class members a second opportunity to opt out materially affect the cost of settlement administration?
The parties shall submit for in camera review a copy of the confidential portion of the settlement agreement related to opt-outs. They may submit the copy by emailing a copy to Vicky Ayala@cand.uscourts.gov.
F. Notice to the Class
Given the amount of the gross settlement fund, can more rigorous notice be given to the classes?
For instance, the contemplated digital notice “consist[s] of the notice headline and class action website URL to appear once each in the National Association of Wholesaler-Distributors (NAW) NAW SmartBrief, Becker's Pharmacy Report, and Pharmaceutical Commerce Direct enewsletters, the same publication services used for the class certification notice.” Peak Decl. ¶ 9; see also Peak Decl. ¶¶ 10-13 (providing a sample of the digital notice as a header banner and describing the three newsletters). Would there be any benefit to more than just a single notice in each e-newsletter? Similarly, would there be any benefit to a press release other than the press release in PR Newswire?
Do the parties have any thoughts as to why, for the BMS settlement, only 58 of the 77 members notified filed claims? See Mot. at 11 (stating that the response rate for the BMS settlement was 75%, or 58 of the 77 known members of the classes). Although only 58 members filed claims, what percentage of the settlement fund was claimed?
Can the parties state the number of days a class member has to file a claim and/or object (i.e., after receiving the notice)?
G. Language of the Notices
1. Exhibit B
It is not clear how the notice in Exhibit B will be distributed - e.g., is this a short-form notice that will be mailed with only the long-form notice in Exhibit D to be available on the settlement website?
For the first sentence in bold at the top of the notice, can there be a statement as to what the estimated average payout will be?
2. Exhibit C (Reminder Notice)
Similar to above, for the first sentence in bold at the top of the notice, can there be a statement as to what the estimated average payout will be?
3. Exhibit D (Mail Notice)
Will this long-form notice be directly mailed to the class members instead of the shortform notice? See Prop. Order ¶ 15(a) (indicating such).
Similar to above, for the first sentence in bold at the top of the notice, can there be a statement as to what the estimated average payout will be?
For Question 7 (page 6), there should be dollar figures given for each deduction from the gross settlement fund. Should the estimated average payout be repeated here?
For Question 10 (pages 6-7), the dollar figure for attorneys' fees should be specified.
4. Exhibit E (Press Release in PR Newswire)
Similar to above, for the first sentence in bold at the top of the notice, can there be a statement as to what the estimated average payout will be?
5. Exhibits F-G (Static and Prepopulated Claim Forms)
Can the parties confirm that claim forms may also be submitted online, and not just by mail?
6. Exhibit H (Plan of Allocation)
Given that the amount of each check will be substantial, can the parties agree that a check will be valid for more than just 90 days? See Sett. Agmt., Ex. H (Plan of Allocation ¶ 17).
IT IS SO ORDERED.