A recent The Legal Intelligencer story, “GSK Seeks to Limit Contingency Fees in Avandia MDL” reports that drugmaker GlaxoSmithKline has asked a judge overseeing the federal multidistrict litigation over the diabetes drug Avandia to limit the contingency fees of attorneys representing individual plaintiffs to 25 percent of client account or awards.  The motion is still pending before U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania.

In litigation in which many plaintiffs have already settled, the court should limit “individual plaintiffs’ attorneys’ fees where, as here, the attorneys did not perform a substantial portion of the work, but rather benefited from coordinated discovery and other work performed by plaintiffs’ steering committee,” GSK said in court papers.  District courts capped contingency fees from 20 percent to 35 percent in pharmaceutical and medical device MDLs involving Medtronic, Vioxx, Guidant and Zyprexa, GSK said in their motion.

In response, one of the plaintiffs’ law firms with individual cases said that while it was not one of the firms involved in the litigation earlier and did not participate in the plaintiffs’ steering committee, it has and will continue to conduct “extensive work” on behalf of its clients and deserves to be compensated according to the contingency fee agreements it has with its clients.  Weitz & Luxenberg said the case law cited by GSK involved cases in which the parties had already entered into global settlement agreements and that there are hundreds of MDL litigations beyond the five cited by GSK that did not involve such judicial intervention on the issue of attorney fees. 

In a motion filed by Paul J. Pennock and Jaime M. Farrell, Weitz & Luxenberg said the firm is already dealing with reduced fees.  Under the Avandia common benefit fund set up to compensate and reimburse attorneys for services performed and expenses incurred in prosecuting the MDL, the plaintiffs will be assessed 7 percent of their gross monetary recovery, of which 4 percent will be deducted from attorney fees, Weitz & Luxenberg said in court papers.  The firm would ordinarily receive 33.3 percent in contingency fees, but because of the common benefit fund, the firm will receive 29.3 percent, according to court documents.