A recent Law 360 story by Mike Curley, “Class Seeks $1.1M Atty Fees in CVS Lidocaine Label Suit”, reports that plaintiffs in a class action against CVS Pharmacy Inc. over its labeling of lidocaine products are asking a New York federal court to award $1.1 million in attorney fees out of a $3.8 million settlement, saying attorneys' work and the scope of the settlement warrant the payout. In a memorandum, named plaintiffs Monique Bell, Tree Anderson and Melissa Conklin said the fee request amounts to just over a quarter of the settlement's total value when the $3.8 million for the class is added to an estimated $500,000 for notice and administration costs, putting it well within the typical 33% benchmark.
The plaintiffs added that the requested amount represents about 800 hours of work so far. With a blended hourly rate of $620 an hour, it comes to a lodestar multiplier of about 2.29 — a multiplier that will go down, as the plaintiffs' attorneys estimate they have about 50 more hours of work ahead in administering the deal. In addition, the plaintiffs argued that the result for the class was very good, considering the risks that the case could have been dismissed or that they could have lost at trial. They added that the injunctive relief requiring CVS to change its labeling further warrants a significant payment.
The suit was filed in December 2021, alleging that CVS tricked consumers into thinking that the labeling of "maximum strength" on its lidocaine patches referred to the maximum strength often prescribed by doctors and made false claims regarding how long the patches stay on the body. The suit alleged violations of state consumer protection statutes, state warranty acts, the federal Magnuson-Moss Warranty Act and New York's General Business Law, as well as a claim of unjust enrichment. The class sought preliminary approval for the $3.8 million settlement in April.
CVS sold more than 9.5 million units of lidocaine products from December 2017 through January 2023, and the class is defined as all persons who purchased products during that time. Under the agreement, CVS will provide consumers recovery of up to $4.50 per purchased unit and change product labels to clarify that "maximum strength" refers to lidocaine available over the counter. The settlement also requires CVS to remove any language referring to the length of time that the patches stick to the body.
In the memorandum, Bell also asked the court for a $3,000 service award for the three named plaintiffs, arguing that they have spent significant time helping the class by investigating the claims, providing information and keeping in contact to discuss the progress and strategy of the case.