SOUTHERN DISTRICT OF FLORIDA Miami-Dade …...i UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami-Dade Division CASE NO. 13-21158-CIV-LENARD/GOODMAN MONICA BARBA and

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Miami-Dade Division

CASE NO. 13-21158-CIV-LENARD/GOODMAN

MONICA BARBA and JONATHAN REISMAN, KAREN and RAYNA DEREUS, JODI and MINDI LEIT, and BARRIE and BRIAN SHANAHAN on behalf of themselves and all others similarly situated, Plaintiffs, v. SHIRE U.S., INC., a New Jersey Corporation, SHIRE, LLC, a Kentucky Limited Liability Company, and DOES 1 through 100, inclusive, Defendants.

)) ) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS’ MOTION AND INCORPORATED MEMORANDUM IN SUPPORT OF

UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Case 1:13-cv-21158-JAL Document 429 Entered on FLSD Docket 09/16/2016 Page 1 of 28

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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. PROCEDURAL HISTORY ................................................................................................ 1

A. The Litigation...................................................................................................................... 1

B. Settlement Negotiations ...................................................................................................... 2

III. SUMMARY OF THE SETTLEMENT .............................................................................. 4

A. Settlement Terms ................................................................................................................ 4

B. The Settlement Class........................................................................................................... 4

C. Monetary Relief for the Settlement Class ........................................................................... 6

IV. CLASS CERTIFICATION AND NOTICE ....................................................................... 8

A. Class Certification ............................................................................................................... 8

B. Class Notice ........................................................................................................................ 9

1. The Publication Notice Program ................................................................................. 10

2. The Settlement Website and Toll-Free Settlement Phone Line .................................. 10

3. The Best Notice Practicable was Provided to the Class ............................................. 11

C. Claims Process .................................................................................................................. 13

D. Class Representatives’ Service Awards and Class Counsel’s Attorney Fees and Litigation Expenses ........................................................................................................................... 14

V. THE COURT SHOULD GRANT FINAL APPROVAL ................................................. 14

A. Legal Standard .................................................................................................................. 14

B. The Settlement was the Result of Serious, Informed, and Non-Collusive Arm’s Length Negotiations ...................................................................................................................... 16

C. The Settlement is Fair, Adequate, and Reasonable ........................................................... 17

1. The likelihood of success at trial ................................................................................ 17


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2. The range of possible recovery and the point at or below the range of possible recovery at which a settlement is fair, adequate and reasonable ............................................... 18

3. The complexity, expense and duration of litigation .................................................... 19

4. The substance and amount of opposition to the settlement ........................................ 20

5. The stage of the proceedings at which the settlement was achieved .......................... 20

VII. CONCLUSION ................................................................................................................. 20


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TABLE OF AUTHORITIES

Cases Adams v. Inter-Con Sec. Sys., Inc.,

2007 WL 3225466 (N.D. Cal. Oct. 30, 2007) ........................................................................... 13 Association for Disabled Americans, Inc. v. Amoco Oil Co.,

211 F.R.D. 457 (S.D. Fla. 2002)................................................................................................ 12 Behrens v. Wometco Enterprises, Inc.,

118 F.R.D. 534 (S.D. Fla. 1988)................................................................................................ 16 Bennett v. Behring Corp.,

737 F.2d 982 (11th Cir. 1984) ................................................................................................... 12 Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) ................................................................................................. 12 Cotton v. Hinton,

559 F.3d 1326 (5th Cir. 1977) ................................................................................................... 12 Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) .................................................................................................................... 8 Francisco v. Numismatic Guaranty Corp. of Am.,

No. 06-61677-CIV, 2008 WL 649124 (S.D. Fla. Jan. 31, 2008) .............................................. 13 Illinois Brick Co. v. Illinois,

431 U.S. 720 (1977) ........................................................................................................... passim In re Employee Benefit Plans Sec. Litig.,

No. 3-92-708, 1993 WL 330595 (D. Minn. June 2, 1993) ........................................................ 13 In re Indep. Energy Holdings PLC,

No. 00 Civ. 6689(SAS), 2003 WL 22244676 (S.D.N.Y. Sept. 29, 2003) ................................. 14 In re U.S. Oil and Gas Litig.,

967 F.2d 489 (11th Cir. 1992) ................................................................................................... 11 Lipuma v. Am. Express Co.,

406 F.Supp.2d 1298 (S.D. Fla. 2005) ............................................................................ 15, 16, 18 Poertner v. The Gillette Co.,

2015 WL 4310896 (11th Cir. 2015) ...................................................................................... 9, 10


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Smith v. Wm. Wrigley Jr. Co.,

No. 09–60646–CIV, 2010 WL 2401149 (S.D. Fla. June 15, 2010) ............................................. 9 Twigg v. Sears, Roebuck & Co.,

153 F.3d 1222 (11th Cir. 1998) ................................................................................................... 8 Warner Comm. Sec. Litig,

618 F. Supp. 735 (S.D.N.Y. 1985) ............................................................................................ 14

Statutes Fla. Stat. §§ 501.201 ....................................................................................................................... 2 Massachusetts G.L. 93A ................................................................................................................. 4 N.J.S.A. § 56:8-1............................................................................................................................. 4


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I. INTRODUCTION

Plaintiffs Monica Barba and Jonathan Reisman, along with Karen DeReus, Rayna

DeReus, Jodi Leit, Mindi Leit, Barrie Shanahan and Bryan Shanahan (“Plaintiffs” or “Class

Representatives”), respectfully move for Final Approval of the proposed Settlement Agreement

(D.E. 423-1) (the “Agreement”), which will resolve Plaintiffs’ and all Settlement Class

Members’ (“Class Members”) claims in the above captioned action (the “Action”). The Court

has preliminarily approved the proposed Settlement reached by the parties in this Action, and

approved the parties’ proposed notice program. D.E. 427. Notice has been disseminated, and

is being disseminated, to the Class as directed by the Court. By this motion and incorporated

memorandum in support, Plaintiffs respectfully request that the Court conduct a final review of

the Settlement, and approve the Settlement as fair, adequate, and reasonable.

II. PROCEDURAL HISTORY

A. The Litigation

On April 2, 2013, Plaintiffs Monica Barba and Jonathan Reisman filed a class action

complaint in the Southern District of Florida on behalf of themselves and a Florida Class of

indirect purchasers against Shire (“the Barba Action”). In the Barba Action, plaintiffs sought

monetary damages and injunctive relief regarding Shire’s anticompetitive conduct including,

primarily, Shire’s payments to generic competitors Teva and Impax to delay the entry of generic

products intended to compete with the sale of Shire’s prescription medication Adderall XR®,

prescribed to treat attention deficit hyperactivity disorder. Plaintiffs alleged that these

payments, along with other anticompetitive conduct (in violation of the Sherman Act, the Florida

Antitrust Act, and Florida’s Consumer Protection laws) violate Florida’s Deceptive and Unfair


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Trade Practices Act (FDUTPA), Fla. Stat. §§ 501.201, et seq.

The Parties vigorously litigated the case through a contentious motion practice—fully

briefing Motions to Dismiss (upon which Your Honor issued a 75-page ruling), Motions for

Class Certification (upon which Magistrate Judge Goodman issued a Report and

Recommendation (“R&R”) to certify the class), Motions for Summary Judgment, Daubert

Motions (upon which Magistrate Judge Goodman had issued R&Rs pertaining to several

experts), and Motions in Limine. Additionally, the Parties had exchanged their witness lists, their

exhibit lists, and filed a joint pre-trial stipulation with the Court.

In addition to the Barba action, the parties also filed actions in Pennsylvania (the Netwall

action), in New Jersey (the Peluso action), and Massachusetts (the Hartenstine action). After

the preliminary settlement, the Netwall, Peluso and Hartenstine actions were stayed pending the

final approval of the settlement.

B. Settlement Negotiations

Pursuant to this Court’s scheduling order first requiring mediation by November 19,

2014, the Parties engaged JAMS panelist, Hon. Diane M. Welsh (Ret.), to lead the Parties’

mediation efforts. The mediation took place on May 29, 2014 in Philadelphia, after the Parties

exchanged mediation memoranda and damages analyses, in addition to providing supplemental

materials to Judge Welsh. Declaration of Conlee S. Whiteley in Support of Plaintiffs’ Motion

for Final Approval of Class Action Settlement (“Whiteley Decl.”) ¶¶ 6-7. The Parties engaged

in serious negotiations, but it was determined that the Parties could not reach agreement at this

stage of the litigation. Id. ¶ 7. Accordingly, Judge Welsh terminated the mediation and

offered continuing services if and when positions changed. Over the course of the next several


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months and into 2015, the Parties informally discussed possible resolution, but to no avail. Id.

¶ 8.

In January 2016, pursuant to this Court’s scheduling order, the Parties agreed to conduct

a final pre-trial mediation, in this instance retaining the services of Jonathan Marks to conduct a

mediation on February 9, 2016, just six weeks before trial. Id. ¶¶ 9-13. Prior to the second

mediation, at the suggestion of Mr. Marks, the Parties began exchanging information, providing

information to Mr. Marks, and conducting several pre-mediation conference calls, ex parte and

together with Mr. Marks. Id. ¶ 11. The Parties mediated the case for a full day on February

9, as scheduled, with full authority, and by the end of the day were able to reach resolution.

The resolution applied not only to the Florida Class, but also to an expanded class that included

the states where actions had been filed against Shire as well as all other Illinois Brick repealer

states outlined in the Agreement and referred to therein as the “Territory.” Id. ¶ 12.

As can be attested to by Mr. Marks, this final mediation was non-collusive and conducted

at arms’ length between Parties with extremely divergent views as to the risks of litigation and

the ultimate value of any judgment – the same views which had stymied all earlier efforts

toward resolution – but which had been tempered and adjusted on both sides by rulings from

the Court shedding further light on the Parties’ positions. Id. ¶ 14.

On February 10, 2016, the Parties informed the Court that following private mediation

and months of protracted, hard-fought litigation, they had reached a Settlement on behalf of the

Class defined herein. D.E. 411. The Parties executed the Agreement on April 7, 2016,

memorializing the agreement reached at mediation and expanding upon the Memorandum of

Understanding executed on March 4, 2016. Whiteley Decl., ¶¶ 15-16. The Agreement stated


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that it would be subject to Preliminary Approval and Final Approval as required by Rule 23 of

the Federal Rules of Civil Procedure. D.E. 423-1, pp. 9–10, ¶ 1.5 Plaintiffs filed their

Unopposed Motion for Preliminary Approval of the Class Action Settlement on April 7, 2016,

and the Court preliminarily approved the Settlement on April 11, 2016. D.E. 427.

III. SUMMARY OF THE SETTLEMENT

A. Settlement Terms

As set forth more fully below, the Settlement Agreement provides for a cash payment

from Defendants of $14.75 million to the Settlement Class, to be distributed to eligible

Settlement Class Members after the deduction of notice and claims administration costs,

reasonable service awards, and attorneys’ fees and costs. D.E. 423-1, pp. 10–11 ¶ 1.6.3. In

exchange for Defendants’ cash payment, Plaintiffs agreed to provide Defendants with a release

of claims relating to the conduct alleged in the aforementioned actions. Id. 13, ¶1.8.1. Final

approval of the Settlement Agreement will result in the dismissal with prejudice of Plaintiffs’

claims against Defendants here and in the Pennsylvania, New Jersey, and Massachusetts actions.

Id. 3, 4th “Whereas” Clause. The notice program was designed to reach the greatest practicable

number of Settlement Class Members, see id. 7–8, ¶ 1.3(c), and was administered in an efficient

and consumer-friendly way. Id. As of today, over 18,961 claims have been submitted to the

claims administrator. See Decl. of Gina Intrepido-Bowden on Implementation and Overall

Adequacy of Settlement Notice Plan (“Intrepido-Bowden Decl.”) at ¶ 13. Both the notice

program and claims administration have be overseen by KCC, a reputable organization with deep

experience in the field. D.E. 423-1, pp. 71–130.

B. The Settlement Class


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For the purpose of implementing the terms of the Agreement, the Court certified the

following Settlement Class pursuant to Rule 23(b)(3):

All persons who, for personal or household use, purchased or paid for some or all of the purchase price for brand Adderall XR® from January 1, 2007 to April 11, 2016 in the District of Columbia and the following states (collectively the “Territory”): Alabama Arizona California Delaware Florida Georgia Idaho Illinois Iowa Kansas Maine Massachusetts

Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Mexico New York North Carolina North Dakota

New Jersey Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Utah Vermont West Virginia Wisconsin

Excluded from the Settlement are: (i) third party payors; (ii) persons and entities who purchased

directly from Shire; (iii) persons and entities who purchased only for resale purposes; (iv) “Flat

co-pay” or “Cadillac Plan” customers who only made fixed-dollar-amount co-payments that did

not vary between Adderall XR® and its generic equivalents; (v) patients with insurance coverage

that provided for a flat-rate co-pay provision; (vi) governmental entities; (vii) Shire, its officers,

directors, affiliates, legal representatives, employees, predecessors, successors, subsidiaries,

affiliates, and assigns, and entities in which Shire has a controlling interest; and (viii) the judges,

justices, magistrate[s], or judicial officers presiding over this matter. Plaintiffs are Settlement

Class Members, and have entered into the Settlement Agreement on behalf of themselves and the

same Settlement Class. See D.E. 423-1¶ 1. 3(b).

As noted in Plaintiffs’ Motion for Preliminary Approval, the Settlement Class is broader


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than the class proposed in the Florida litigation. First, the Settlement Class is not limited to

Florida purchasers and includes individuals who purchased Adderall XR in states where actions

had been filed against Shire as well as all other Illinois Brick1 repealer states. D.E. 423 at 12.

Second, the Settlement Class also includes purchasers from a wider timeframe than the proposed

Florida Class. Whereas the Florida Class was limited to January 1, 2007 through March 31,

2009—the dates in which Plaintiffs’ experts determined generic Adderall XR should have been

available for purchase—the Settlement’s class period includes dates after which generic AXR

was available. Enlarging the timeframe allows purchasers who were allegedly harmed by Shire’s

additional conduct, including those subjected to Shire’s multi-state rebate strategy which

allegedly affected purchasers after generic AXR was first made available on April 1, 2009

(described at ECF 423 at 8), an opportunity to request compensation under the Settlement.2

C. Monetary Relief for the Settlement Class

Under the terms of the Agreement, Shire deposited the aggregate amount of $14.75

million into a Settlement Fund. D.E. 423-1, p. 10, ¶ 1.6.1. The Settlement Fund, and any

interest thereon, shall be used to pay: (1) the settlement amounts owed to Settlement Class

Members; (2) reasonable attorneys’ fees, costs, and expenses approved by the Court; (3) any

Court-approved service awards pursuant to ¶ 1.4.3 of the Settlement Agreement; (4) taxes

payable on the Settlement Fund; (5) costs and expenses associated with the administration of

funds; and (6) any and all administrative and notice expenses. Id. 10–11, ¶ 1.6.3. Upon entry

1 Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) (eliminating recovery by indirect purchasers in federal antitrust actions). 2 On May 15, 2015, Plaintiffs moved for leave of court to file a second amended complaint, adding additional claims regarding Shire’s rebate strategy, but the motion was denied as untimely. D.E. 204. Nevertheless, Plaintiffs engaged in full fact and expert discovery on these additional claims. Whiteley Decl. ¶ 28.


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of the preliminary approval order on April 11, 2016, the Escrow Agent advanced $500,000 from

the Settlement Fund to cover notice and claims administration. Id. 11, ¶ 1.6.4. The service

awards sought for Plaintiffs in the Action and for the named plaintiffs in the Netwall, Peluso, and

Hartenstine matters, as discussed more fully below, will be based on the amount of time and

effort each person expended in pursuing their respective claims. Id. 9, ¶ 1.4.3. The amount

sought from the Settlement Fund to reimburse for attorneys’ fees incurred in this Action will not

exceed 35% of the Settlement Fund. Id. 11, ¶ 1.6.5. Plaintiffs’ Counsel will request that litigation

costs and expenses will similarly be paid from the settlement fund. Id.

The remaining balance of the Settlement Fund shall be allocated in full to the Settlement

Class to the extent possible and practicable. Of this amount, 74% will be directed to Settlement

Class Members who purchased Adderall XR® between and including January 1, 2007 and March

31, 2009 (“the pre-generic period”). Id. 11–12, ¶ 1.6.6. This time period, which is co-extensive

with that recommended by the Magistrate Judge for class certification, reflects the time period

during which generic Adderall XR® was allegedly unavailable in the market due to the conduct

alleged in this Action. The remainder of the Settlement Fund, in an amount not less than 26%,

will be allocated in full to Settlement Class Members who purchased Adderall XR® between

April 1, 2009 through the date of preliminary approval (“the post-entry period”). Id. This

time period is co-extensive with that relating to Shire’s purported rebating practices initially

challenged in this Action, as well as in the New Jersey and Massachusetts Actions.

Settlement Fund proceeds allocated to the Settlement Class will be distributed to

Settlement Class Members who submit timely, valid claims. Id. Each Settlement Class

Member will receive a percentage of the remaining Settlement Fund proceeds allocated to the


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pre-generic period and/or the post-entry period, that is equal to each Class Member’s allowed

claim amount divided by the total of all allowed claim amounts, as appropriate, subject to a

maximum recovery per branded Adderall XR® prescription of $16. Id.

As of September 15, 2016, the Claims administrator has received a total of 18,961 timely

claims. Within these claims, Claimants have requested reimbursement for a total of 701,134

prescriptions. Of this total, 238,117 prescriptions were purchased during the pre-generic

period, and 463,017 prescriptions were purchased during the post-entry period. See

Intrepido-Bowden Decl. ¶13 Under the Agreement, each eligible Class Member’s total

recovery will vary based on the number of total Adderall XR® prescriptions he or she paid for,

see D.E. 423-1 ¶ 1.6.6, and the amount per claim will be increased (up to $16 per prescription) or

reduced on a pro-rata basis accordingly. See Intrepido-Bowden Decl. ¶14; D.E. 423-1 ¶ 1.6.6.

The claims process is ongoing and is scheduled to proceed through October 7, 2016. Class

Counsel will submit an updated claims report to the Court after the close of the claims period

prior to the Fairness Hearing.

IV. CLASS CERTIFICATION AND NOTICE

A. Class Certification

In its Order Granting Preliminary Approval of the Settlement, the Court certified the

proposed class finding that the prerequisites for a class action under Rules 23(a) and (b)(3) of the

Federal Rules of Civil Procedure have been met. D.E. 427 at ¶¶ 4-5. No substantive change in

fact or law warrants reconsideration of that order. Whiteley Decl. ¶ 19. As explained in

Plaintiffs’ Motion for Preliminary Approval, Magistrate Judge Goodman issued an R&R


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granting class certification (D.E. 374) of a similar Florida Class for purposes of litigation.3 The

same factors considered by Magistrate Judge Goodman support certification of this Settlement

Class. For the purposes of settlement, Shire does not oppose class certification. Plaintiffs

respectfully request that the Court maintain certification of the Settlement Class and finally

approve the proposed Settlement Class as certified.

B. Class Notice

The Parties selected and the Court approved Kurtzman Carson Consultants, LLC (“KCC”

or the “Settlement Administrator”) to disseminate notice and handle claims administration.

Agreement ¶ 1.3(c)-(d). Class Notice has been designed to give the best notice practicable, is

tailored to reach putative Class Members, and is reasonably calculated under the circumstances

to apprise the Class of the Settlement, Class Members’ rights to make claims for money, exclude

themselves from the Settlement, or object to the Settlement’s terms and Class Counsel’s fee and

costs application and request for service awards. Id. ¶ 1. 3(c) and Exhibits D-G.

The Notice Program is comprised of three parts: (i) print publication notice; (ii) digital

notice; and (iii) long form notice with more detail than the print or digital notices, which has

been made available on the Settlement Website and via email and mail upon request. All forms

of Notice to the Class included, among other information: a description of the Settlement, a date

by which Class Members may make a claim, exclude themselves from the Settlement Class, or

object to the Settlement; the address of the Settlement Website; and the toll-free telephone line.

The Notice Plan constitutes sufficient notice to all persons entitled to receive it and satisfies all

applicable requirements of law, including Rule 23 and the constitutional requirement of due

3 The Parties reached this Settlement prior to an Order from this Court adopting the R&R.


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process. Requests for exclusion, Claim Forms and/or objections must be sent to the Settlement

Administrator and postmarked or uploaded before October 7, 2016. D.E. 427 ¶¶ 15, 18, 21.

After the Court granted preliminary approval of the Settlement, KCC began

implementing the Notice Program. See Intrepido-Bowden Decl. ¶ 4. As set forth below, KCC

found that the Notice Plan, as implemented, is comprehensive, well-suited to the Class and

conforms to the high standards that federal courts, state courts and jurisprudence require. Id.

1. The Publication Notice Program

The Publication Notice Plan was comprised of a combination of print publishing of the

Summary Notice (attached as Ex. 1 to the Intrepido-Bowden Decl.) in the August 2016 issues of

Better Homes and Gardens and National Geographic, and the June 17 and July 11, 2016 issues

of People magazine; and (2) thirty days of targeted website and portal banner advertisements

(screen shots of the banner notices as they appeared on various websites are attached as Ex. 2 to

the Intrepido-Bowden Dec.) on general Run of Network (RON) sites, which included sites such

as foxnews.com, everydayhealth.com, emedicinehealth.com, and toyourhealth.com; and (3)

banner notices (screen shots of the banner notices as they appeared in the ADDitude e-newsletter

and website are attached as Ex. 3 to the Intrepido-Bowden Dec.) appeared between June 27 and

July 27, 2016 on the website and in the weekly e-newsletter of ADDitude, a magazine dedicated

to helping children and adults with attention deficit disorder and learning disabilities lead

successful lives. Intrepido-Bowden Decl. ¶¶ 5-9.

2. The Settlement Website and Toll-Free Settlement Phone Line

The Settlement Administrator established a Settlement Website as a means for Settlement

Class Members to obtain notice of, and information about, the Settlement Agreement.


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Intrepido-Bowden Decl. ¶ 10. The Settlement Website (i.e. www.AdderallXRSettlement.com)

included an electronic and printable copy of the Long Form Notice, information about the

Action, the Settlement, and other important Court documents. Id. The Settlement Website

also included an electronic and printable Claim Form, which may be submitted online or printed

and mailed. Id. The Settlement Website was activated on May 2, 2016 and remains active.

Id. The Settlement Website’s URL was prominently displayed in all printed notice materials

and accessible through a hyperlink embedded in the internet banner and e-newsletter notices. Id.

As of September 14, 2016, the website has received 103,080 total visitors from 66,568 unique IP

addresses and 18,657 online Claim Form Submissions. Id.

The Administrator also activated and maintains a dedicated toll-free telephone line, (877)

369-4085, for the Class Members to obtain additional information about the Settlement in the

form of frequently asked questions and answers. Id. ¶ 11. The toll-free number also allows

Class Members to request to have more information mailed directly to them and connect with a

live customer service representative. Id. The toll-free number was prominently displayed in

all printed notice materials. As of September 14, 2016, KCC has received a total of 594 calls,

266 of which have requested a Notice and Claim Form.

3. The Best Notice Practicable was Provided to the Class

Rule 23(e)(1) requires the Court to direct notice in a reasonable manner to all class

members who would be bound by a proposed settlement, voluntary dismissal, or compromise

regardless of whether the class was certified under Rule 23(b)(1), (b)(2) or (b)(3). Manual for

Compl. Lit., at § 21.312. The test is whether the method employed to distribute the notice was

reasonably calculated to apprise the class of the pendency of the action, of the proposed


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settlement, and of the class members’ rights to opt out or object. Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 173 (1974). To satisfy this standard, “[n]ot only must the substantive claims be

adequately described but the notice must also contain information reasonably necessary to make

a decision to remain a class member and be bound by the final judgment or opt out of the

action.” Twigg v. Sears, Roebuck & Co., 153 F.3d 1222, 1227 (11th Cir. 1998) (internal

quotation marks omitted).

The Notice Program—collectively print publication in three magazines and an

e-newsletter, targeted website and online advertisements and a dedicated Settlement Website and

toll free number—easily satisfies these requirements. Because the Settlement Class consists

entirely of indirect purchasers (i.e. consumers who purchased Adderall XR from pharmacies over

the course of nearly nine years), publication notice was determined to be the best vehicle to reach

class members, as is often the case when individual Settlement Class Members cannot otherwise

be identified through reasonable efforts due to the nature of the consumer products at issue and

the wide geographical area over which they are spread. See Smith v. Wm. Wrigley Jr. Co., 2010

WL 2401149, at *6 (S.D. Fla. June 15, 2010), at *6 (approving notice plan consisting of notice

given “in two widely-read magazines” as well as several popular websites). This Notice Program

reached approximately 72.2% of likely Settlement Class Members an average of 1.7 times each.

Intrepido-Bowden Decl. ¶ 15. This reach is higher than the minimum standard set forth in the

Federal Judicial Center’s (“FJC”) Judge’s Class Action Notice and Claims Process Checklist and

Plain Language Guide. Id. ¶¶ 3, 16. While the settlement notice process has yielded a robust

number of claims, as set forth in the Intrepido-Bowden Declaration, in the final weeks of the

settlement claims period, Class Counsel have elected to stimulate additional claims using


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enhanced notice procedures to be implemented by KCC. Intrepido-Bowden Decl. ¶ 16.

As noted in the various forms of Notice, attached to the Intrepido-Bowden Declaration

and described above, Notice informed Class Members of their options for opting-out or objecting

to the Settlement, information about the Settlement Hearing, the salient terms of the Settlement

and how to obtain additional information. Intrepido-Bowden Decl. ¶¶ 3, 17. The language in the

Notice and Claim Form is plain and easy to understand and provides neutral and objective

information about the nature of the Settlement. Accordingly, the Notice Plan satisfies all due

process requirements. Id. See also Poertner v. The Gillette Co., No 14-13882, 2015 WL

4310896, at *5 (11th Cir. 2015) (affirming final approval and noting “the claiming

process—completing a one-page form and submitting it online or by mail—[was not]

particularly difficult or burdensome”).

Class Notice was designed to give the best notice practicable, tailored to reach putative

Class Members, and reasonably calculated under the circumstances to apprise the Class of the

pendency of the Litigation, Class Members’ rights to make a claim for money, opt-out of the

Settlement Class or object to the terms of the Settlement, and Class Counsel’s fee and costs

application and the requests for Service Awards. See Intrepido-Bowden Decl. ¶¶ 3, 18.

C. Claims Process

To obtain relief under the Settlement, the Settlement Agreement requires Class Members

to submit a Claim Form before the deadline set by the Court of October 7, 2016. D.E. 427 ¶ 15.

However, Shire and Class Counsel may jointly agree to recommend the acceptance of additional

claim forms up until five days prior to the Fairness Hearing. Id. See also Agreement at § 1.15.4.

Class Members may download the Claim Form on the Settlement Website or request a copy by


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calling or writing to the Settlement Administrator. Intrepido-Bowden Decl. ¶¶ 10, 11. Claim

Forms may be submitted online or by mail. D.E. 423-1 ¶1.15. The Settlement Administrator will

then review the claims and, after consultation with Class Counsel and Shire’s Counsel, make the

final determination of the amount owed to each claiming Class Member. Id. § 1.15.3.

D. Class Representatives’ Service Awards and Class Counsel’s Attorney Fees and Litigation Expenses

The Court has already appointed Class Counsel to represent the Settlement Class. D.E.

427. Shire will not oppose Class Counsel’s request for attorneys’ fees of up to 35% of the

Settlement Fund, plus reimbursement of litigation costs. D.E. 423-1, p. 11, ¶ 1.6.5. Shire

will also not oppose Service Awards for each of the Class Representatives in the Barba matter,

as well as the named plaintiffs in the Netwall, Peluso¸ and Hartenstine matters. Id. 9–10,

¶¶ 1.4.3, 1.6.5. These Service Awards will compensate the Class Representatives and other

named plaintiffs for their time, effort, and risks they undertook in prosecuting the Litigation.

The Service Awards, attorneys’ fees, and litigation expenses will be deducted from the

settlement fund. Id. 10–11, ¶ 1.6.3. Class Counsel will file a separate motion requesting these

awards, on September 23, 2016 (Agreement at 8-9, ¶ 1.4), and the analysis of whether to grant or

deny these awards is separate and apart from the analysis of the fairness, reasonableness and

adequacy of the Settlement.

V. THE COURT SHOULD GRANT FINAL APPROVAL

A. Legal Standard

Rule 23(e) of the Federal Rules of Civil Procedure requires judicial approval of the

compromise of claims brought on a class basis. “Although class action settlements require court

approval, such approval is committed to the sound discretion of the district court.” In re U.S. Oil


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and Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992). In exercising that discretion, courts are

mindful of the “strong judicial policy favoring settlement as well as by the realization that

compromise is the essence of settlement.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.

1984). The policy favoring settlement is especially relevant in class actions, where the inherent

costs, delays and risks of continued litigation might otherwise overwhelm any potential benefit

the class could hope to obtain. See, e.g., Association for Disabled Americans, Inc. v. Amoco Oil

Co., 211 F.R.D. 457, 466 (S.D. Fla. 2002) (“There is an overriding public interest in favor of

settlement, particularly in class actions that have the well-deserved reputation of being the most

complex.”) (citing Cotton v. Hinton, 559 F.3d 1326, 1331 (5th Cir. 1977));4 See also 4 Newberg

on Class Actions § 11.41 (4th ed. 2002) (citing cases).

Final approval is proper where there is “no fraud or collusion in arriving at the settlement

and…the settlement was fair, adequate and reasonable.” Bennett, 737 F.2d at 986. When

determining whether a settlement is ultimately fair, adequate and reasonable, courts in the

Eleventh Circuit have looked to six factors: “(1) the likelihood of success at trial; (2) the range of

possible recovery; (3) the point at or below the range of possible recovery at which a settlement

is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the

substance and amount of opposition to the settlement; and (6) the stage of the proceedings at

which the settlement was achieved.” Id. Here, as described in greater detail below, all of these

factors are met.

4 Decisions by the former Fifth Circuit prior to October 1, 1981 are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)).


16

B. The Settlement was the Result of Serious, Informed, and Non-Collusive Arm’s Length Negotiations

Typically, “[t]here is a presumption of fairness when a proposed class settlement, which

was negotiated at arm’s-length by counsel for the class, is presented to the Court for approval.”

Newberg, § 11.41; see also In re Employee Benefit Plans Sec. Litig., No. 3-92-708, 1993 WL

330595, *5 (D. Minn. June 2, 1993) (“[t]he court is entitled to rely on the judgment of

experienced counsel in its evaluation of the merits of a class action settlement”).

Here, the Parties did not reach a Settlement until weeks before trial, after years of

negotiation, multiple mediation sessions, full merits and expert discovery, as well as extensive

and hard-fought motion practice. Whiteley Decl. at ¶ 12. Class Counsel conducted a thorough

investigation and analysis of Plaintiffs’ claims and Shire’s defenses, and reviewed the discovery

and expert testimony, which enabled them to gain an understanding of the evidence related to

central questions in the case and prepared counsel for well-informed settlement negotiations.5

Id.

Indeed, the Settlement ultimately required two formal, full-day mediation sessions before

two different mediators (Hon. Diane M. Welsh and Jonathan Marks) over the span of nearly

three years.6 Id. ¶¶ 4-14. By this time, Plaintiffs and their counsel, who have significant

5 See Francisco v. Numismatic Guaranty Corp. of Am., No. 06-61677-CIV, 2008 WL 649124, *11 (S.D. Fla. Jan. 31, 2008) (“Class Counsel had sufficient information to adequately evaluate the merits of the case and weigh the benefits against further litigation” where counsel conducted 30(b)(6) depositions and obtained “thousands” of pages of discovery). 6 That the Parties received the assistance from an experienced mediator over the period of numerous mediation sessions is a factor evidencing the Settlement is fair and non-collusive. See, e.g., Adams v. Inter-Con Sec. Sys., Inc., No. C-06-5428 MHP, 2007 WL 3225466, *3 (N.D. Cal. Oct. 30, 2007) (“The assistance of an experienced mediator in the settlement process confirms that the settlement is non-collusive”); In re Indep. Energy Holdings PLC, No. 00 Civ. 6689(SAS), 2003 WL 22244676, *4 (S.D.N.Y. Sept. 29, 2003) (“the fact that the settlement was


17

experience in prosecuting complex class actions, had a “clear view of the strengths and

weaknesses” of their case and were in a strong position to make an informed decision regarding

the reasonableness of a potential settlement. See In re Warner Comm. Sec. Litig, 618 F. Supp.

735, 745 (S.D.N.Y. 1985). The extensive nature of the negotiations, the experience of Class

Counsel, and the fair result reached illustrate the arm’s-length negotiations that led to the

Settlement and the execution of the Agreement.

C. The Settlement is Fair, Adequate, and Reasonable

Here, all of the Bennet factors are met, warranting a finding that the settlement is fair,

adequate, and reasonable. Each factor is described in greater detail below.

1. The likelihood of success at trial

The first Bennett factor is satisfied here. While Plaintiffs and Class Counsel are confident

in the strength of their case, they are also pragmatic in their awareness of the fact that in order to

succeed at trial, Plaintiffs would be required to overcome Defendants’ pending motions for

summary judgment and objection to the Magistrate’s R&R on Class Certification. Whiteley

Decl. ¶ 21. Further, Plaintiffs would be required to convince the District Court to overturn the

Magistrate’s R&R excluding their damages expert, Dr. Meredith Rosenthal. Id. ¶ 22. Finally,

Plaintiffs would have to overcome Shire’s defenses on the merits, including arguments regarding

causation as the FDA ultimately did not approve the generic ANDAs until well after the period

Plaintiffs alleged was caused by Shire’s delay. Id. ¶ 23. Shire put forth numerous experts

challenging damages, liability, and various elements of class certification. Although Plaintiffs

and Class Counsel are confident they could have overcome Shire’s challenges with evidence and

reached after exhaustive arm’s length negotiations, with the assistance of a private mediator experienced in complex litigation, is further proof that it is fair and reasonable”).


18

their own expert testimony, Plaintiffs recognize the risks associated with proceeding to trial

(especially where Plaintiffs’ damages expert had been excluded). Id. ¶ 25. Even if the Court

denied Shire’s objection to the R&R granting class certification, and overturned the Magistrate’s

decision excluding Plaintiffs’ damages expert, with Shire’s summary judgment motion under

submission, Plaintiffs also faced an imminent risk of judgment being entered against them, Id. ¶

24, as well as similar risks of trial.

Protracted litigation carries inherent risks that would have delayed and endangered Class

Members’ recovery. Id. ¶ 26. Even if Plaintiffs prevailed at trial, recovery could be delayed for

years by an appeal. Id. ¶ 30; see also Lipuma v. Am. Express Co., 406 F.Supp.2d 1298, 1322

(S.D. Fla. 2005) (likelihood that appellate proceedings could delay class recovery “strongly

favor[s] approval of a settlement”). This Settlement provides relief to Class Members without

further delay. Id. ¶ 26. Under the circumstances, the Plaintiffs and Class Counsel appropriately

determined that settlement outweighs the risks of continued litigation.

2. The range of possible recovery and the point at or below the range of possible recovery at which a settlement is fair, adequate and reasonable

Likewise, the second and third Bennett factors are met in this case. When evaluating “the

terms of the compromise in relation to the likely benefits of a successful trial…the trial court is

entitled to rely upon the judgment of experienced counsel for the parties.” Cotton, 559 F.2d at

1330. “Indeed, the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute

its own judgment for that of counsel.” Id. Courts have found settlements may be reasonable even

where the plaintiffs recover only a fraction of their actual losses. See Behrens v. Wometco

Enterprises, Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988) (“[T]he fact that a proposed settlement

amounts only to a fraction of the potential recovery does not mean the settlement is unfair or


19

inadequate”). “[S]trong defenses to the claims presented makes the possibility of a low recovery

quite reasonable.” Lipuma, 406 F.Supp. 2d at 1323.

Class Counsel have a thorough understanding of the practical and legal issues they would

continue to face taking this case to verdict, based on their experience in other complex class

actions and the procedural posture of this Litigation at the time settlement was reached. Whiteley

Decl. ¶¶ 36-42. Plaintiffs faced a number of serious challenges: class certification, the exclusion

of Plaintiffs’ damages expert, and liability with respect to causation among them. Id.

The monetary relief available to the Class is reasonable given the procedural posture and

the complexity of the Litigation and the significant barriers that stood between Plaintiffs and any

final judgment in favor of Plaintiffs and the Class: denial of class certification; interlocutory Rule

23(f) appeal of class certification; exclusion of Plaintiffs’ damages expert; summary judgment;

trial; and, post-trial appeals. Id. ¶ 28.

3. The complexity, expense and duration of litigation

Plaintiffs have also satisfied the fourth Bennett factor. The traditional means for handling

claims like those at issue here would unduly tax the court system, require a massive expenditure

of public and private resources, and given the relatively small value of the claims of individual

Class Members, would be impracticable. The Settlement is the best vehicle for Class Members to

receive the relief to which they are entitled in a prompt and efficient manner. Id. ¶ 27. The

Parties already expended significant resources, including retaining and deposing experts, and

ongoing pretrial and trial proceedings in this Court and the appellate courts would have involved

substantial and expensive resources well beyond that expended to date. Absent settlement, at


20

least an additional two years would be required to exhaust all appeals in this case with even

further delay in the remaining three actions. Id. ¶ 30.

4. The substance and amount of opposition to the settlement

The settlement satisfies the fifth Bennett factor. To date there have been no objections.

The deadline to object is October 7, 2016. Pursuant to the Court’s Order Granting Preliminary

Approval (D.E. 427), Plaintiffs will respond to objections, if any, on or before October 26, 2016.

5. The stage of the proceedings at which the settlement was achieved

Finally, the Settlement meets the sixth Bennett factor. Courts consider the stage of

proceedings at which settlement is achieved “to ensure that Plaintiff had access to sufficient

information to adequately evaluate the merits of the case and weigh the benefits of settlement

against further litigation.” Lipuma, 406 F. Supp. 2d at 1324. This Settlement was reached at a

pivotal stage in the Litigation: after full merits and expert discovery with a pending motion for

summary judgment, objection to the R&R regarding class certification, R&R excluding

Plaintiffs’ damages expert, and a March 21, 2016 trial date. Whiteley Decl. ¶ 12. Plaintiffs

settled the Litigation with the benefit of full discovery, which enabled Class Counsel to evaluate

with confidence the strength and weaknesses of Plaintiffs’ claims and Shire’s defenses. Id.

Plaintiffs also faced the very real prospect of being foreclosed from any recovery at all,

depending on the outcome of either of the aforementioned motions.

VII. CONCLUSION

For the reasons set forth herein, Plaintiffs respectfully request that the Court grant Final

Approval of this Settlement and enter judgment in the form attached hereto as Exhibit 1.


21

Date: September 16, 2016 Respectfully submitted,

KU & MUSSMAN, PA

By: /s/ Brian T. Ku Brian T. Ku, Esq. (Fla. # 610461) [email protected] Louis Mussman, Esq. (Fla # 597155) [email protected] M. Ryan Casey, Esq. (Pro Hac Vice) [email protected] Ku & Mussman, P.A. 6001 NW 153rd Street, Suite 100 Miami Lakes, Florida 33014 Tel: (305) 891-1322 Fax: (305) 891-4512 -and-

Conlee Whiteley, Esq. (Pro Hac Vice) [email protected] Allan Kanner, Esq. (Pro Hac Vice) [email protected]

Kanner & Whiteley, LLC 701 Camp Street New Orleans, Louisiana 70130 Tel: (504) 524-5777 Fax: (504) 524-5763

-and-

Ruben Honik, Esq. (Pro Hac Vice) [email protected]. Richard M. Golomb, Esq. (Pro Hac Vice) [email protected] David J. Stanoch. Esq. (Pro Hac Vice) [email protected] GOLOMB & HONIK, P.C. 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Tel: (215) 985-9177 Fax: (215) 985-4169 -and-


22

Gillian L. Wade, Esq. (Pro Hac Vice) [email protected] Sara D. Avila, Esq. (Pro Hac Vice) [email protected] MILSTEIN ADELMAN, JACKSON, FAIRCHILD & WADE, LLP 10250 Constellation Blvd., 14th Fl. Los Angeles, CA 90067 Tel.: (310) 396-9600 Fax: (310) 396-9635 Attorneys for Plaintiffs and the Class

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that on this 16th day of September, 2016, this filing complies with

Local Rule 5.1 and this Court’s January 29, 2015 Order (Dkt. 173).

By: /s/ Brian T. Ku Brian T. Ku, Esq. (Fla. # 610461)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 16th day of September, 2016, a true and correct copy of

the foregoing has been furnished via CM/ECF electronic filing.

David A. Zwally [email protected] Edgar H. Haug [email protected] John F. Collins [email protected] Porter F. Fleming [email protected] FROMMER LAWRENCE & HAUG, LLP


23

745 Fifth Avenue New York, New York 10151 Tel: (212) 588-0800 Michael F. Brockmeyer [email protected] David S. Shotlander [email protected] FROMMER LAWRENCE & HAUG, LLP 1667 K. Street, NW Washington, DC 20006 Tel: (202) 292-1530 Eric Christu [email protected] Daniel Barskey [email protected] SHUTTS & BOWEN LLP 1000 CityPlace Tower 525 Okeechobee Blvd. West Palm Beach, Florida 22401 Tel: (561) 650-8518

By: /s/ Brian T. Ku Brian T. Ku, Esq. (Fla. # 610461)


Exhibit 1

Case 1:13-cv-21158-JAL Document 429-1 Entered on FLSD Docket 09/16/2016 Page 1 of 12

{Cases; 00020506.DOCX}


Miami-Dade Division Case No.: 13-CV-21158-LENARD/GOODMAN

MONICA BARBA, JONATHAN REISMAN, KAREN DEREUS, RAYNA DEREUS, JODI LEIT, MINDI LEIT, AND BARRIE AND BRIAN SHANAHAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. SHIRE U.S., INC., SHIRE LLC, and DOES 1-100, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

[PROPOSED] FINAL JUDGMENT AND ORDER APPROVING PROPOSED

SETTLEMENT AND DISMISSING ACTIONS

Pursuant to Federal Rules of Civil Procedure 23 and 54, and in accordance with the terms

of the Class Action Settlement Agreement (“the Settlement Agreement”) filed on behalf of

Monica Barba, Jonathan Reisman, Karen DeReus, Rayna DeReus, Jodi Leit, Mindi Leit, and

Barrie Shanahan and Brian Shanahan on behalf of their minor child B.S., (collectively,

“Plaintiffs”), individually and on behalf of a putative class of indirect purchasers of Adderall

XR® , and Shire U.S. Inc. and Shire LLC (collectively, “Shire”) dated April 7, 2016, it is hereby

ORDERED, ADJUDGED, AND DECREED that:

1. This Final Judgment and Order of Dismissal with Prejudice hereby incorporates

by reference the definitions in the Settlement Agreement among the parties to this Action on file

with this Court, and all capitalized terms used and not otherwise defined herein shall have the

meanings set forth in the Settlement Agreement. As set forth in the Preliminary Approval Order

[D.E. 427], dated April 11, 2016, the previously certified Settlement Class is defined as:


2

All persons who, for personal or household use, purchased or paid for some or all of the purchase price for branded Adderall XR® from January 1, 2007 through the date the Court enters an order granting Preliminary Approval of the Settlement (“the Claims Period”) in the District of Columbia and the following states (collectively “the Territory”): Alabama, Arizona, California, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, New Jersey, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin. Excluded from the Settlement Class are: (i) third party payors; (ii) persons and entities who purchased directly from Shire; (iii) persons and entities who purchased only for resale purposes; (iv) “Flat co-pay” or “Cadillac Plan” customers who only made fixed dollar-amount co-payments that do not vary between Adderall XR® and its generic equivalents; (v) patients with insurance coverage that provided for a flat-rate co-pay provision; (vi) governmental entities; (vii) Shire, its officers, directors, affiliates, legal representatives, employees, predecessors, successors, subsidiaries, affiliates and assigns, and entities in which Shire has a controlling interest; and (viii) the judges, justices, magistrates, or judicial officers presiding over this matter.

2. The Court has jurisdiction over this Action and over each of the parties and over

all Settlement Class members.

3. The Court finds that the class previously certified continues to meet all the

requirements of Fed. R. Civ. P. 23(a) and (b)(3).


3

4. The Court has previously appointed the above-identified Plaintiffs as

representatives of the Settlement Class.

5. The Court has also previously appointed the following Counsel for the Settlement

Class (“Class Counsel”), and recognizes that they have continued to adequately and fairly

represent the Settlement Class:

Conlee Whiteley, Esq. (Pro Hac Vice) Allan Kanner (Pro Hac Vice pending) Kanner & Whiteley, LLC 701 Camp Street New Orleans, Louisiana 70130

Ruben Honik, Esq. (Pro Hac Vice) Richard M. Golomb, Esq. (Pro Hac Vice) David J. Stanoch, Esq. (Pro Hac Vice) Golomb & Honik, P.C. 1515 Market Street, Suite 1100 Philadelphia, PA 19102

Brian T. Ku, Esq. (Fla. # 610461) Louis Mussman, Esq. (Fla # 597155) M. Ryan Casey, Esq. (Pro Hac Vice) Ku & Mussman, P.A. 6001 NW 153rd Street, Ste. 100 Miami Lakes, Florida 33041

Gillian L. Wade, Esq. (Pro Hac Vice) Sara D. Avila, Esq. (Pro Hac Vice) Milstein Adelman Jackson Fairchild & Wade, LLP 10250 Constellation Boulevard 14th Floor Los Angeles, CA 90067

6. The notice of settlement (in the form presented to this Court as Exhibits E, F, and

G, attached to the Settlement Agreement [D.E. 423-1] (collectively, “the Notice”) directed to the

Settlement Class members, constituted the best notice practicable under the circumstances. In

making this determination, the Court finds that the Notice was sent to all individual Settlement

Class members who were identified through reasonable efforts, published in at least Better

Homes and Gardens, National Geographic, and People magazines; placed on targeted website

and portal banner advertisements on general Run of Network sites; and included in e-newsletter

placements with ADDitude, a magazine dedicated to helping children and adults with attention

deficit disorder and learning disabilities lead successful lives. Pursuant to, and in accordance

with, Federal Rule of Civil Procedure 23, the Court hereby finds that the Notice provided

Settlement Class members with due and adequate notice of the Settlement, the Settlement


4

Agreement, these proceedings, and the rights of Settlement Class members to object to the

Settlement.

7. Due and adequate notice of the proceedings having been given to the Settlement

Class and a full opportunity having been offered to the Settlement Class to participate in the

Fairness Hearing, it is hereby determined that all Settlement Class members are bound by this

Final Order and Judgment.

8. The Court has held a Fairness Hearing to consider the fairness, reasonableness,

and adequacy of the proposed Settlement, and the Court has thoroughly considered any and all

objections to and comments in support of the Settlement and its terms.

9. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby approves the

Settlement, as set forth in the Settlement Agreement, and finds that the Settlement is, in all

respects fair, reasonable, and adequate in light of the factors set forth in Bennett v. Behring

Corp., 737 F.2d 982, 986 (11th Cir. 1984), as follows:

(a) the Settlement was not the product of collusion between Plaintiffs and Shire or

their respective counsel, but rather was the result of bona fide and arms’- length

negotiations before an experienced mediator, conducted in good faith between

Class Counsel and Shire;

(b) this case was highly complex, expensive, and time consuming, and would have

continued to be so if the case had not settled;

(c) discovery is complete and the factual record of the Action has been sufficiently

developed to enable Class Counsel to make a reasoned judgment;


5

(d) Class Counsel and the Settlement Class would have faced numerous and

substantial risks in establishing liability, causation, and damages if they had

decided to continue to litigate rather than settle;

(e) the benefits provided by the Settlement are fair, adequate, and reasonable

compared to the range of possible recovery; and

(f) the opinions of Class Counsel, the Plaintiffs, and absent Settlement Class

members favor approval of the settlement.

Accordingly, the Settlement shall be consummated in accordance with the terms and provisions

of the Settlement Agreement.

10. The Action (as captioned above) is hereby dismissed with prejudice, as provided

in the Settlement Agreement, and without costs, except as provided for herein and in the

Settlement Agreement.

11. The Court approves the parties’ plan to distribute the Net Settlement Fund, with

74%, allocated in full to Settlement Class members who purchased Adderall XR® between and

including January 1, 2007 and March 31, 2009, and 26%, allocated in full to Settlement Class

members who purchased Adderall XR® between April 1, 2009 through the date of preliminary

approval, pro rata, based on Settlement Class members’ purchases of Adderall XR® within each

period, and finds that the distribution plan does so fairly and efficiently. KCC, the firm retained

by Class Counsel as the Settlement Administrator, shall distribute the Net Settlement Fund in the

manner provided in the Settlement Agreement dated April 7, 2016, and as previously approved

in the Preliminary Approval Order [D.E. 427]. The Court further approves the parties’ cy pres

program, in which, any funds remaining in the Net Settlement Fund after payments are made to

Qualified Class Members, shall be distributed to C.H.A.D.D—Children and Adults with


6

Attention Deficit Disorders—a national non-profit organization working to improve the lives of

affected people through education, advocacy, and support.

12. Except as otherwise provided in paragraph 1.9 of the Settlement Agreement, upon

the Effective Date, Shire, its parents, subsidiaries, and affiliates, whether direct or indirect, the

predecessors and successors of each of them, and their respective divisions, affiliates, joint

ventures, stockholders, officers, directors, supervisory or advisory boards, insurers, general or

limited liability partners, employees, agents, trustees, associates, attorneys or legal

representatives (and the predecessors, heirs, executors, administrators, successors and assigns of

each of the foregoing) (the “Released Parties”), shall be unconditionally, fully, and finally

released and forever discharged from all manner of claims, debts, obligations, demands, actions,

suits, causes of action, damages whenever incurred, liabilities of any nature whatsoever,

including costs, expenses, penalties and attorneys’ fees, known or unknown, suspected or

unsuspected, accrued in whole or in part, in law or equity, that Plaintiffs or any members of the

Settlement Class (including any of their past, present, and future officers, directors, insurers,

general or limited liability partners, divisions, stockholders, agents, attorneys, employees, legal

representatives, trustees, parents, associates, affiliates, joint ventures, subsidiaries, heirs,

executors, administrators, predecessors, successors and assigns, acting in their capacity as such)

(the “Releasors”) whether or not they object to the Settlement and whether or not they make a

claim or participate in the Settlement Fund, ever had, now has, or hereafter can, shall or may

have, directly, representatively, derivatively or in any other capacity, arising out of or under the

federal antitrust laws or under the antitrust, trade regulation, or consumer protection laws, and

common law, of any of the following jurisdictions: the District of Columbia and the states of

Alabama, Arizona, California, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Maine,


7

Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New

Hampshire, New Mexico, New York, North Carolina, North Dakota, New Jersey, Oregon,

Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West

Virginia, and Wisconsin, and relating in any way to any conduct alleged or asserted in any

complaints filed by Plaintiffs in this Action or any other complaint filed by Plaintiffs, including

any alleged delay in the manufacture, marketing or sale of any generic, or AG version of

Adderall XR®, or any alleged overcharges in copays for Adderall XR® or any generic versions

thereof, before the Effective Date (the “Released Claims”).

13. In addition, Plaintiffs and each Settlement Class member, on behalf of themselves

and all other Releasors, hereby expressly waive, release, and forever discharge, upon the

Settlement becoming final, any and all provisions, rights, and benefits, if any, conferred by §

1542 of the California Civil Code, which reads:

Section 1542. General Release; extent. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

or by any law of any state or territory of the United States or other jurisdiction, or principle of

common law, which is similar, comparable or equivalent to § 1542 of the California Civil Code.

14. Each Settlement Class member may hereafter discover facts other than or

different from those which he, she, or it knows or believes to be true with respect to the claims

that are the subject matter of paragraph 1.8 of the Settlement Agreement, but each Settlement

Class member hereby expressly waives and fully, finally, and forever settles, releases, and

discharges, upon this Settlement becoming final, any known or unknown, suspected or

unsuspected, asserted or unasserted, contingent or noncontingent claim that would otherwise fall

within the definition of Released Claims, whether or not concealed or hidden, without regard to


8

the subsequent discovery or existence of such different or additional facts. Each Settlement

Class member also hereby expressly waives and fully, finally, and forever settles, releases, and

discharges any and all claims it may have against any Released Party under § 17200, et seq., of

the California Business and Professions Code or any similar comparable or equivalent provision

of the law of any other state or territory of the United States or other jurisdiction, which claims

are expressly incorporated into the definition of Released Claims.

15. The releases set forth in paragraphs 12, 13, and 14 of this Order shall not release

any claims for personal injury.

16. Upon consideration of Class Counsel’s petition for fees, costs, and expenses, Ku

& Mussman, P.A., Golomb & Honik, P.C., Kanner & Whiteley, LLC, and Milstein Adelman

Jackson Fairchild & Wade, LLP, on behalf of all counsel for the Settlement Class, are hereby

awarded attorneys’ fees totaling 35% of the Settlement Fund, and costs and expenses, to be paid

solely from the Settlement Fund and only if and after the Settlement becomes final in accordance

with paragraph 1.5 of the Settlement Agreement. In evaluating a request for fees and

reimbursement of expenses, courts in this district generally consider the factors set forth in

Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768, 772 n.3 (11th Cir. 1991) (citation

omitted). The Court finds that the following Camden I factors, inter alia, support awarding the

requested fees:

(a) the claims against Shire required substantial time and labor;

(b) there were novel and difficult issues in the case, which required skilled and

talented lawyers;

(c) Class Counsel were precluded from other employment as a result of taking

this Action;


9

(d) the requested fee is customary and comports with fees awarded in similar

cases;

(e) Class Counsel undertook numerous and significant risks on behalf of members

of the Settlement Class with no guarantee that they would be compensated;

and

(f) Class Counsel obtained a desirable result.

17. Service awards “compensate named plaintiffs for the services they provided and

the risks they incurred during the course of the class action litigation.” Allapattah Servs., Inc. v.

Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006). Upon consideration of Class

Counsel’s petition for service awards for Plaintiffs in this Action and the named plaintiffs in the

Netwall, Peluso, and Hartenstine Actions, Plaintiffs are hereby awarded service awards as

follows:

Monica Barba – $5,000

Jonathan Reisman – $5,000

Karen DeReus – $2,500

Rayna DeReus – $2,500

Jodi Leit – $2,500

Mindi Leit – $2,500

Barrie and Brian Shanahan – $2,500

Allyson Netwall – $2,500

Jessica Hartenstine – $2,500

Rosemary Autrey – $2,500

Jayme Dearing – $2,500


10

Samantha Peluso – $2,500

The service awards above are to be paid solely from the Settlement Fund and only if and after the

Settlement becomes final in accordance with paragraph 1.5 of the Settlement Agreement.

18. Within five (5) Business Days after the Settlement becomes final pursuant to

paragraph 1.5 of the Settlement Agreement and in accordance with the terms of the Settlement

Agreement and the Escrow Agreement, the Escrow Agent shall distribute the attorneys’ fees,

costs, and expenses, and service awards authorized and approved by this Final Judgment and

Order, and any related orders, to Kanner & Whiteley, LLC who will be responsible for

distributing the service awards to Plaintiffs named herein and for distributing the attorneys’ fees,

costs and expenses to Class Counsel named herein in accordance with their respective

agreements.

19. The attorneys’ fees, costs and expenses, and service awards authorized and

approved by this Final Judgment and Order shall constitute full and final satisfaction of any and

all claims that Plaintiffs and any Settlement Class member, and their respective counsel, may

have or assert for reimbursement of fees, costs, and expenses, and service awards, and Plaintiffs

and members of the Settlement Class, and their respective counsel, shall not seek or demand

payment of any fees and/or costs and/or expenses and/or service awards from any source other

than the Settlement Fund.

20. The Released Parties (as defined in paragraph 1.8 of the Settlement Agreement)

shall have no responsibility for, and no liability whatsoever with respect to, any payment or

disbursement of attorneys’ fees, expenses, costs, or service awards among Class Counsel and/or

Plaintiffs, nor with respect to any allocation of attorneys’ fees, expenses, costs, or service awards

to any other person or entity who may assert any claim thereto.


11

21. The Court retains exclusive jurisdiction over the Settlement and the Settlement

Agreement as described therein, including the administration and consummation of the

Settlement, and over this Final Judgment and Order.

22. The parties shall continue to comply with all obligations regarding the

confidentiality and destruction of discovery material from the Action.

23. The Court finds that this Final Judgment and Order adjudicates all of the claims,

rights, and liabilities of the parties to the Settlement Agreement (including the members of the

Settlement Class), and is final and shall be immediately appealable. Neither this Order nor the

Settlement Agreement nor any other Settlement-related document shall constitute any evidence

or admission of liability by Shire or any other Released Party, nor shall either the Settlement

Agreement, this Order or any other Settlement-related document be offered in evidence or used

for any other purpose in this or any other matter or proceeding except as may be necessary to

consummate or enforce the Settlement Agreement or the terms of this Order or if offered by any

Released Party in responding to any action purporting to assert Released Claims.

IT IS SO ORDERED.

Dated: _______________ ___________________________ The Honorable Joan A. Lenard United States District Court Judge U.S. District Court for the Southern District of Florida



Miami-Dade Division

CASE NO. 13-21158-CIV-LENARD/GOODMAN

MONICA BARBA, JONATHAN REISMAN, KAREN DEREUS, RAYNA DEREUS, JODI LEIT, MINDI LEIT, AND BARRIE AND BRIAN SHANAHAN on behalf of themselves and all others similarly situated, Plaintiffs, v. SHIRE U.S., INC., SHIRE, LLC, and DOES 1 through 100, Defendants.

)) ) ) ) ) ) ) ) ) ) ) ) ) )

DECLARATION OF CONLEE S. WHITELEY IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT


1

I, Conlee S. Whiteley, do hereby declare and state as follows:

1. I am a partner at the law offices of Kanner & Whiteley, L.L.C., counsel of record

for Plaintiffs Monica Barbara, Jonathan Reisman, Karen DeReus, Rayna DeReus, Jodi Leit,

Mindi Leit, and Barrie and Brian Shanahan on behalf of their minor child B.S. I am licensed to

practice before all courts in the State of Louisiana and I have been admitted Pro Hac Vice in the

U.S. District Court for the Southern District of Florida for the purposes of this action (“Action”).

I have personal knowledge of all the facts stated herein, and if called to testify as a witness, I

could and would competently testify to them.

2. This declaration is made in support of Plaintiffs’ Motion for Final Approval of the

Class Action Settlement.

3. The Settlement provides substantial relief for the Class and the terms of the

Settlement are fair, adequate, and reasonable.

4. The Parties first began settlement negotiations on May 29, 2014 in Philadelphia,

Pennsylvania, before JAMS Mediator Judge Diane Welsh (ret).

5. In advance of the May 29, 2014 mediation, the Parties exchanged mediation

memoranda, damages analyses, and supplemental materials, all of which were provided to Judge

Welsh.

6. While the parties engaged in serious negotiations on May 29, 2014, it was

determined that the Parties could not reach a settlement at that particular stage of the litigation.

7. Over the course of the next several months, and well into 2015, the Parties

informally discussed possible resolution but were unsuccessful.

8. In January 2016, pursuant to the Court’s scheduling order, the Parties agreed to

conduct a final pre-trial mediation, and retained the services of Jonathan Marks.


2

9. This second mediation was scheduled for February 9, 2016.

10. The parties exchanged information with Mr. Marks, and conducted several pre-

mediation conference calls, ex parte and together with Mr. Marks.

11. The Parties mediated the case for a full day on February 9, as scheduled, with full

authority, and by the end of the day were able to reach settlement. The settlement applied not

only the Florida Class, but also to an expanded class that included the states where actions had

been filed against Shire, as well as all other Illinois Brick repealer states as outlined in the

Agreement (D.E. 423-1) and referred to therein as the “Territory.”

12. The second mediation took place only after all fact and expert discovery had been

completed,1 the resolution of all motions to compel, the filing of full briefing on the Renewed

Motion for Class Certification, the filing of Motions to Dismiss, Motions for Summary Judgment

and Motions in Limine, the issuance of this Court’s order denying Defendants’ Motion to

Dismiss, Judge Goodman’s issuance of a Report & Recommendation (“R&R”) to Certify the

Class and R&Rs to deny Plaintiffs’ motion to exclude Shire’s primary expert witness and to

grant Shire’s Motion to Exclude Plaintiffs’ damages expert.

13. The mediation was non-collusive and conducted at arms’ length between Parties

with extremely divergent views as to the risks of litigation and the ultimate value of any

judgment—the same views which had stymied all earlier efforts toward resolution—but which

had been tempered and adjusted on both sides by rulings from the Court shedding further light on

the Parties’ positions.

14. On March 4, 2016, the Parties executed a Memorandum of Understanding.

1 By agreement of the parties, discovery for the four cases was informally coordinated, thus much of the substantive discovery had been completed for the New Jersey, Pennsylvania and Massachusetts cases as well.


3

15. On April 7, 2016, the Parties executed the Settlement Agreement (“Agreement”),

memorializing the agreement reached at mediation, and expanding upon the Memorandum of

Understanding.

16. The Court granted Preliminary Approval of the Settlement on April 11, 2016.

D.E. 427.

17. The Court certified, for settlement purposes only, a class of

All persons who, for personal or household use, purchased or paid for some or all of the purchase price for branded Adderall XR® from January 1, 2007 through April 11, 2016, in the District of Columbia and the following states (collectively “the Territory”):

Alabama, Arizona, California, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, New Jersey, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin.

Excluded from the Settlement Class are:

(i) third party payors; (ii) persons and entities who purchased directly from Shire; (iii) persons and entities who purchased only for resale purposes; (iv) “Flat co-pay” or “Cadillac Plan” customers who only made fixed dollar-amount co-payments that do not vary between Adderall XR® and its generic equivalents; (v) patients with insurance coverage that provided for a flat rate co-pay provision; (vi) governmental entities; (vii) Shire, its officers, directors, affiliates, legal representatives, employees, predecessors, successors, subsidiaries and assigns, and entities in which Shire has a controlling interest; and (viii) the judges, justices, magistrates, or judicial officers presiding over this matter.

The persons or entities described in this paragraph shall herein be referred to as the

“Settlement Class.”

18. Settlement Fund proceeds allocated to the Settlement Class will be distributed to

Settlement Class Members who submit timely, valid claims. D.E. 423-1, p. 11, ¶ 1.6.6. Each

Settlement Class Member will receive a percentage of the Settlement Fund proceeds allocated to

the pre-generic period and/or the post-entry period (as defined therein), that is equal to each


4

Class Member’s allowed claim amount divided by the total of all allowed claim amounts, as

appropriate, subject to a maximum recovery per branded Adderall XR® prescription of $16. Id.

19. The prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal

Rules of Civil Procedure have been met as found by the Court in its order certifying the Class for

settlement purposes on April 11, 2016. D.E. 427. No substantive change in fact or law warrants

reconsideration of that order.

20. It is my understanding, based on the information provided by the Settlement

Administrator, (“KCC”), that as of September 14, 2016, 18,961 timely claims have been

submitted. Claimants requested reimbursement for 238,117 prescriptions purchased during the

pre-generic period, and 463,017 prescriptions purchased during the post-entry period. See Decl.

of Gina Intrepido-Bowden ¶ 13. Under the Agreement, each eligible Class Member’s total

recovery will vary based on the number of total Adderall XR® prescriptions he or she paid for,

see D.E. 423-1, p. 11, ¶ 1.6.6, and the amount per claim will be increased (up to $16 per

prescription) or reduced on a pro rata basis accordingly, pursuant to the terms of the Agreement.

See Decl. of Gina Intrepido-Bowden ¶ 14; D.E. 423-1, p. 11, ¶ 1.6.6. The deadline for

objections, requests for exclusion and claims is October 7, 2016. D.E. 427. An updated claims

report will be submitted to the Court after the close of the claims period prior to the Fairness

Hearing.

21. While Plaintiffs and Class Counsel are confident in the strength of their case, they

are also pragmatic in their awareness of the fact that in order to succeed at trial, Plaintiffs would

be required to overcome Defendant’s pending motions for summary judgment and objection to

the Magistrate’s R&R on Class Certification.


5

22. Further, a prerequisite to success in this case would require Plaintiffs to convince

the District Court to overturn the Magistrate’s R&R excluding their damages expert, Dr.

Meredith Rosenthal.

23. Plaintiffs would additionally have to overcome Shire’s defenses on the merits,

including Shire’s arguments regarding causation as the FDA ultimately did not approve the

generic ANDAs until well after the period of delayed generic entry alleged by Plaintiffs.

24. Even if the Court denied Shire’s objection to the R&R granting class certification,

and overturned the Magistrate’s decision excluding Plaintiffs’ damages expert, with Shire’s

summary judgment motion under submission, Plaintiffs also faced an imminent risk of judgment

being entered against them in this Action.

25. Plaintiffs similarly faced a risk of judgment being entered against them at trial.

26. Protracted litigation carries inherent risks that would have delayed and

endangered Class Members’ recovery.

27. This Settlement provides the best vehicle for Class Members to receive the relief

to which they are entitled in a prompt and efficient manner without further delay.

28. The monetary relief available to the Class is reasonable given the procedural

posture, the complexity of the Action and the significant barriers that stood between Plaintiffs

and any final judgment in favor of Plaintiffs and the Class: denial of class certification;

interlocutory Rule 23(f) appeal of class certification; exclusion of Plaintiffs’ damages expert;

summary judgment; trial; and post-trial appeals.

29. This Settlement was reached at a pivotal stage in the litigation, i.e. after full

merits and expert discovery had been completed, including discovery on Shire’s rebate strategy,

with a motion for summary judgment pending, objections to the R&R regarding class


6

certification pending, and objections to the R&R excluding Plaintiffs’ damages expert pending,

all of which were to be resolved before the March 21, 2016 trial date. The settlement also

resolves cases in three other jurisdictions.

30. Absent settlement, an additional two years would be required to exhaust all

appeals in this case and would cause even further delay in the remaining three actions.

31. The Class Representatives’ interests are coextensive with, and not antagonistic to,

the interests of the Class because they have an equally great interest in the relief offered by the

Settlement, and absent Settlement, Class Members have no diverging interests.

32. In exchange for the benefits conferred by the Settlement, all Settlement Class

Members who do not opt out will be deemed to have released Shire, its parents, subsidiaries and

affiliates of any action relating in any way to any conduct alleged or asserted in any complaints

filed by Plaintiffs in this Action or any other complaint filed by Plaintiffs, including any alleged

delay in the manufacture, marketing or sale of any generic, or Authorized Generic version of

Adderall XR®, or any alleged overcharges in co-pays for Adderall XR® or any generic versions

thereof, before the Effective Date, as stipulated by the Settlement Agreement. D.E.423-1,

pp. 13–14, ¶ 1.8.3. The release does not include a release for any claims of personal injury. Id. at

14, ¶ 1.9.

33. The Notice Plan included a print publication notice, a digital notice, and a long

form notice which provided more detail than the print or digital notices and were also sent via

email upon request. Plaintiffs made these notices available on www.adderallxrsettlement.com.

Plaintiffs also notified Settlement Class members of the Settlement by publication in Better

Homes and Gardens, National Geographic, and People magazines, targeted website and portal

banner advertisements with embedded links to the long form notice and the Settlement Website


7

on general Run of Network sites, and e-newsletter placements with ADDitude. In the remaining

weeks of the claims period, class notice will be further supplemented by claims stimulation

procedures as set forth in the Declaration of Gina Intrepido-Bowden ¶ 16.

34. The Notice and Media Plan constitute sufficient notice to all persons entitled to

notice, and satisfy all applicable requirements of law, including Rule 23 and the constitutional

requirements of due process. Any potential Settlement Class member who wishes to be excluded

from the Class must mail or deliver written request for exclusion postmarked no later than

October 7, 2016.

35. Any potential Settlement Class member who wishes to object to or oppose the

approval of this Settlement and/or the motions for attorneys’ fees, costs and/or service awards

must submit to the Clerk of Court a written objection by October 7, 2016. Class counsel will

respond to any objections no later than October 26, 2016.

36. My co-counsel and I are qualified and competent counsel with extensive expertise

prosecuting complex class actions.

37. Kanner & Whiteley, L.L.C. (“K&W”) has successfully handled national, regional

and state-wide class actions throughout the United States in both state and federal courts,

including: Barfoot et al. v. Dolgencorp, LLC, No. 15-24662 (S.D. Fla. 2015); Steen v. Capital

One, N.A., No. 1:10-cv-22058 (S.D. Fla. 2015); In re Testosterone Replacement Therapy

Products Litigation, MDL No. 2545 (Co-Lead Counsel representing Third Party Payor Medical

Mutual of Ohio in No. 14-cv-8857) (N.D. Ill. 2014); Paul v. Wine.com, Inc., No. 13-534734

(Cal. Sup. Ct. 2013); In re Budeprion XL Marketing & Sales Litigation, MDL No. 2107 (E.D. Pa.

2012); Kardonick v. JP Morgan Chase & Co., No. 10-cv-23235 (S.D. Fla. 2010); Ralph Shaffer

v. Continental Casualty Company, et al., No. 06-2335 (C.D. Cal. 2009); Lemmings v. Second


8

Chance Body Armor, et al., No. CJ-2004-64 (Mayes County District Court, OK 2/19/05);

Wallace v. American Agrinsurance Inc. et al., No. LR-C-99-669 (E.D. Ark 2005); Samples v.

Conoco, Inc. et al., No. 2001-CA-000631, Div. J. (Escambia Co. First Judicial District Circuit

Court, Fla. 2004); Milkman v. American Travelers Life Ins. Co., No. 03775, (PA Ct. Common

Pleas)(2002); Talalai v. Cooper Tire & Rubber Co., MID-L-8839-OOMT, Mass Tort 259 (Law

Div. Middlesex Cty. 2001); In re Synthroid Marketing Litigation, MDL 1182, 264 F.3d 712 (7th

Cir. 2001); Hanson v. Acceleration Life Ins. Co., et al., Civ. No. A3:97-152 (D.N.D. 1999);

Petrovic v. Amoco Oil Co., No. 95-0019-CV-W-2 (W.D. Mo. 1997); Tompkins, et al. v. BASF

Corporation, et al., Civ. No. 96-59 (Trail County, N.D. 1997); Ren-Dan Farms v. Monsanto, 952

F. Supp. 370 (W.D. La. 1997); Bonilla v. Trebol Motors Corp., et al., No. 92-1795 (D.P.R.

1996); and Local 7-515, Oil Chemical and Atomic Workers International Union (OCAWIU), et

al. v. American Home Products, et al., No. 92-1238 (JP) (D.P.R. 1992).

38. Golomb & Honik, P.C. (“G&H”) has successfully litigated a number of class

actions in federal and state courts including: Refund Anticipation Loan Litigation, No.1:12-cv-

02949 (N.D. Ill. 2012); Spinelli v. Capital One Services, No. 08-cv-132 (M.D. Fla. 2008);

Kardonick v. JP Morgan Chase & Co., No. 10-cv-23235 (S.D. Fla. 2010); In re Discover

Payment Protection Plan Marketing & Sales Practices Litigation, MDL No. 2217 (N.D. Ill.

2011); Esslinger v. HSBC Bank USA, Inc., No. 2:10-cv-03213 (E.D. Pa. 2010); In re Bank of

America Credit Protection Marketing & Sales Practices Litigation, No. 3:11-md-02269 (N.D.

Cal. 2011); In re Budeprion XL Marketing & Sales Litigation, MDL No. 2107 (E.D. Pa. 2012);

In re Checking Account Overdraft Litigation, MDL No. 2036 (2009); Mattel Lead Paint Class

Action, MDL No. 1897 (2007); David v. American Suzuki Motor Corp., No. 08-CV-22278 (S.D.

Fla. 2008); In re Sterling Financial Corporation Securities Class Action, MDL No. 1879 (2007);


9

Cullen et al. v. Whitman Medical Corporation d/b/a Whitman Education Group, Inc., et al., 197

F.R.D. 136 (E.D. Pa. 2000); and Whisnant, et al. v. General Chemical Corp., et al., No. 99-

12286(Court of Common Pleas of Delaware County, Pa., 1999).

39. Milstein, Adelman, Jackson, Fairchild & Wade, LLP (formerly Milstein Adelman,

LLP) (“MAJFW”) is a plaintiff law firm comprised of 20 lawyers, based out of Los Angeles,

California. MAJFW has more than 20 years of experience leading and handling consumer class

actions and complex litigation. MAJFW has represented thousands of plaintiffs in over 250

complex actions, and has recovered over $500 million for its clients. The class action attorneys

at MAJFW specialize in consumer products litigation and have particular expertise in class

action cases involving consumer deception. MAJFW has been appointed lead or co-lead in

several state and federal class actions throughout the United States, including: Eggnatz v. The

Kashi Company (representing a nationwide class of consumers for alleged misleading “All

Natural” labeling on Kashi products); Toney v. Just Fabulous (LASC BC533943) (2015)

(representing “VIP” members of JustFab regarding overcharges for restocking fees and monthly

auto-billing); Paul v. Wine.com (SFSC Case No. CGC-13-534734) (2015) (alleging violations of

the auto-purchase renewal statute and misleading “free shipping” representations); Arreguin v.

Telebrands (CVRS 13307798) (2015) (representing purchasers of defective “Pockethose”

product); McCrary v. The Elations Co., LLC (EDCV 13-00242 JGB) (C.D. Cal. 2014)

(representing California purchasers of Elations “joint health supplement beverage” alleging false

claims of “clinical-proof” on product labeling); Solomon v. Ramona’s Food Products (LASC No.

BC 451080) (2014) (representing purchasers of mislabeled food products); Saenz v. SEIU United

Healthcare Workers-West (Alameda Super. Ct. No. RG09478973) (2013) (representing

individuals against labor union for data security breach); In re Budeprion XL and Marketing and


10

Sales Practices Litigation (MDL No. 2107) (E.D. Pa. 2012) (co-lead class counsel in centralized

proceeding alleging fraudulent omissions on the labeling of generic anti-depressant); Keller v.

Gaspari Nutrition, Inc. No. 2:11-cv-06158-GAF (C.D. Cal. 2012) (representing purchasers of

testosterone pills); Pabst v. Genesco, Inc., 3:11-cv-01592-SI (N.D. Cal. 2012) (representing

California consumers regarding privacy violation); Wike v. HCG Platinum, LLC. (LASC. No.

BC451080) (2012) (representing purchasers of the dietary supplement HCG Platinum); Litwin v.

iRenew, et al., (LASC. No. BC447114) (2012) (representing purchasers of iRenew brand

bracelet); Weeks, et al. v. Kellogg, et al., CV-09-08102 (MMM) (C.D. Cal. 2010) (representing

purchasers of food products regarding alleged false “immunity” claims); Thompson, et al., v.

Biotab Nutraceuticals, Inc. (LASC No. BC414808) (2010) (representing national class of

purchasers of dietary supplement for male enhancement); Fallon v. ET Browne Drug Corp.

(LASC No. 411117) (2009) (representing class of purchasers of mislabeled cosmetic products);

Shaffer v. Continental Casualty Company (2:06-cv-2235-PSG) (C.D. Cal. 2008) (representing

national class of senior insureds alleging consumer fraud and financial abuse of the elderly in the

sale and marketing of long term care insurance policies); Heath, et al. v. County of San

Bernardino (5:06-CV-00411-VAP) (C.D. Cal. 2008) (representing limited term firefighters for

civil rights and FLSA violations).

40. MAJFW has also been appointed to the Plaintiffs’ Executive Committees in

several federal class actions centralized by the MDL Panel, including: In re Nutramax Cosamin

Marketing and Sales Practices Litigation (MDL No. 2489)(D. Md.); In re Pom Wonderful

Marketing and Sales Practices Litigation (MDL No. 2199)(C.D. Cal.); In re Liberty Refund

Anticipation Loan Litig. (MDL No. 2334) (N.D. Ill.) and In re H&R Block Refund Anticipation

Litig. (MDL No. 2373) (N.D. Ill.).


11

41. Additionally, K&W, G&H, and MAJFW served on the Executive Committee in

the multi-district litigation styled In re Budeprion XL Sales & Marketing Practices Litigation

involving allegations of consumer fraud against a generic pharmaceutical company.

42. Ku & Mussman, PA, (“KM”) is a multi-faceted firm headquartered in Miami,

Florida. In addition to a successful general practice, the firm further serves its clients in the areas

of consumer protection, class actions, and complex litigation. Representative cases in which KM

has served in a lead counsel or co-lead counsel role include: Jensen v. Cablevision Systems

Corp., No. 15-4188 (E.D.N.Y. 2015) (representing putative national class of cable subscribers

regarding violations of the Computer Fraud and Abuse Act); Barfoot et al. v. Dolgencorp, LLC,

No. 15-24662 (S.D. Fla. 2015) (representing putative Florida class of consumers regarding

violations of Florida’s Deceptive and Unfair Trade Practices Act and Misleading Advertising

Law); Moyal Wellness Center, LLC v. Aeroflow, Inc., No. 15-24706 (S.D. Fla. 2015)

(representing putative national class alleging violations of the Telephone Consumer Protection

Act); Paul v. Wine.com, Inc., No. 13-534734 (Cal. Sup. Ct. 2013) (representing national class of

consumers regarding violations of California’s Unfair Competition Law); and Smith v. Intuit,

Inc., No. 12-222 (N.D. Cal. 2012) (representing national class of consumers regarding violations

of California’s tax refund lending laws).

43. Class Counsel has represented the interests of the Class with vigor and will

continue to do so throughout the settlement process.




Miami-Dade Division Case No.: 13-CV-21158- LENARD/GOODMAN

MONICA BARBA, JONATHAN ) REISMAN, KAREN DEREUS, RAYNA ) DEREUS, JODI LEIT, MINDI LEIT, AND ) BARRIE AND BRIAN SHANAHAN, on ) behalf of themselves and all others similarly ) situated, ) ) Plaintiffs, ) ) v. ) ) SHIRE U.S., INC., SHIRE, LLC, ) and DOES 1-100, ) ) ) Defendants. ) ) ) _______________________________________ )

DECLARATION OF GINA INTREPIDO-BOWDEN ON IMPLEMENTATION AND OVERALL ADEQUACY OF SETTLEMENT NOTICE PLAN

I, Gina M. Intrepido-Bowden, declare as follows:

1. I have personal knowledge of the matters set forth herein, and I believe them to be

true and correct. I am a legal notice expert and a Vice President of Legal Notification Services at

Kurtzman Carson Consultants, LLC (“KCC”), the Settlement Administrator in this action.

2. I, along with Carla Peak and KCC, was chosen by the parties and approved by the

Court to design and implement a notice program (the “Notice Plan” or “Notice Program”) and

notice documents (the “Notice” or “Notices”) to inform Settlement Class Members about their

rights and options under the class action settlement (the “Settlement”). In addition, KCC was

retained to create and maintain the Settlement Website and toll-free telephone line; receive and

process Claim Forms; respond to Settlement Class Member inquiries; and perform other duties

as specified in the Settlement Agreement preliminarily approved by this Court on April 11, 2016.



2

Details about the Notice Program and forms of the Notice documents, along with our c.v.

outlining our experience and credentials, were included with my prior declaration, Declaration of

Gina Intrepido-Bowden on Settlement Notice Plan (Dkt. #423-3).

3. With the support of KCC’s claims administration and media teams, each element

of the Court-approved Notice Plan was implemented.

a. The Notice Program reached approximately 72.2% of likely Settlement

Class Members on average 1.7 times each via the consumer magazine and internet

notice efforts alone.1 The supplemental notice placements on the ADDitude

website and e-newsletter enhanced the overall reach and frequency of notice

exposure.

b. All notice documents were designed to be noticeable, clear, simple,

substantive, and informative. No significant or required information was missing.

c. Each person reached will have had adequate time prior to the final

approval hearing to make appropriate decisions, such as whether to object, opt

out, or file a claim.

d. The Notice Program fairly and adequately covered the Settlement Class

without excluding any demographic group or geographic area.

e. The Notice Program was consistent with other court-approved notice

programs that KCC has designed and implemented for purposes of settlement.

4. After the Court granted preliminary approval of the Settlement, we began

implementing the Notice Program. This declaration details all of the notice activities undertaken

by KCC, provides “proofs of performance,” and explains how and why the Settlement Notice

Plan was comprehensive, well-suited to the Class, and conformed to the high standards that

federal courts, state courts, and jurisprudence require.

1 The reach or net reach of a notice program is defined as the percentage of a class that was exposed to a notice net of any duplication among people who may have been exposed more than once. The average “frequency” of notice exposure is the average number of times that those reached by a notice would be exposed to a notice.



3

NOTICE PLAN IMPLEMENTATION

Consumer Publications

5. To build a reach base, a Summary Notice appeared in the national editions of the

following consumer publications on the dates and pages indicated below:

Publication Notice Size Issue Date On-Sale Date Page #

Better Homes & Gardens Half page August 2016 July 19, 2016 140

National Geographic Half page August 2016 July 26, 2016 21

People Half page June 27, 2016 June 17, 2016 63

Half page July 11, 2016 July 1, 2016 98

6. Copies of the notices as they appeared in Better Homes & Gardens, National

Geographic, and People are attached as Exhibit 1.

Internet Banners

7. To further extend reach among Settlement Class Members, 60 million internet

banner impressions targeting adults 18-49 years of age (“Adults 18-49”) were purchased and

appeared on a variety of websites. A total of 60,633,176 impressions were delivered from June

27, 2016 through July 27, 2016, resulting in an additional 633,176 impressions at no extra

charge. The banner notices appeared on a variety of websites, such as Foxnews.com,

Everydayhealth.com, emedicinehealth.com, altmedicinezone.com, and toyourhealth.com. In

addition, all of the banner notices included an embedded link to the Settlement Website.

Screenshots of the banner notices as they appeared on various websites are attached as Exhibit 2.

Supplemental Notice Effort

8. To supplement the consumer publication and internet banner efforts, paid notices

were placed on the website and in the weekly e-newsletter of ADDitude. ADDitude is distributed

to adults with Attention Deficit Hyperactivity Disorder (“ADHD”) as well as caregivers of

children with ADHD.

9. A banner notice appeared in the July 8, 2016 ADDitude e-newsletter, which is

sent to more than 250,000 opt-in subscribers each week. The banner notice also appeared on



4

ADDitude’s website, www.additudemag.com, delivering 190,036 impressions from June 27,

2016 to July 27, 2016. Both the e-newsletter and banner notices included an embedded link to

the Settlement Website. Screenshots of the banner notices as they appeared in the ADDitude e-

newsletter and website are attached as Exhibit 3.

Settlement Website

10. On May 2, 2016, the Settlement Website, www.AdderallXRSettlement.com, went

live to the public. At the website, Settlement Class Members are able to download and/or file

online a Claim Form; download an Exclusion Form; view a Long Form Class Notice; view the

Settlement Agreement and Preliminary Approval Order; and view answers to frequently asked

questions. The website address was prominently displayed in all printed notice materials and

accessible through a hyperlink embedded in the internet banner and e-newsletter notices. As of

September 14, 2016, the website has received 103,080 total visitors from 66,568 unique IP

addresses, and 18,657 online Claim Form submissions.

Toll-free Number

11. On May 2, 2016, the case dedicated toll-free number, 877-369-4085, was

activated. The toll-free number provided Settlement Class Members with a simple way to learn

more about the Settlement in the form of frequently asked questions and answers, allowed them

to request to have more information mailed directly to them and connect with a live customer

service representative. The toll-free number was prominently displayed in all printed notice

materials. As of September 14, 2016, KCC has received a total of 594 calls, of which 266 have

requested a Notice and Claim Form.

Exclusions & Objections

12. The deadline for Settlement Class Members to file a request for exclusion or

objection is October 7, 2016. As September 14, 2016, three exclusion requests and no objections

have been received.



5

Claim Forms

13. The deadline for Settlement Class Members to file a claim is October 7, 2016. As

of September 14, 2016, KCC has received a total of 18,961 claims. Of these, claimants have

requested reimbursement for a total of 701,134 prescriptions—238,117 for prescriptions

purchased during the pre-generic period (January 1, 2007 through March 31, 2009) and 463,017

for prescriptions purchased during the post-entry period (April 1, 2009 through present).

14. Pursuant to the terms of the Settlement Agreement, each eligible Class Member’s

total recovery will vary based on the number of total Adderall XR® prescriptions he or she paid

for, see D.E. 423-1, p. 11, ¶ 1.6.6 and the amount per claim will be increased (up to $16 per

prescription) or reduced on a pro rata basis accordingly.

15. The deadline for objections, requests for exclusions and claims is October 7,

2016. Updated claims statistics will be submitted to the Court after the close of the claims period

and in advance of the Fairness Hearing.

Claims Stimulation

16. We plan to implement a supplemental media effort that will allow a text ad to

appear when keywords, such as ADD, Adderall, Adderall side effects, Adderall XR®, ADHD,

are searched. The text ad will contain a tracking code and a link to the claims filing page of the

Settlement Website. The effort will be tracked on a week by week basis, and evaluated based on

cost-effectiveness before committing to its continuation.

CONCLUSION

17. The primary objective of the Notice Program was to effectively reach Settlement

Class Members with a noticeable Notice of the Settlement and provide them with a reasonable

opportunity to understand their legal rights and options. These efforts were successful.

18. The Notice Plan reached approximately 72.2% of likely Settlement Class

Members on average 1.7 times each. The supplemental ADDitude placements further extended

the reach and frequency of exposure of the Notice Program.



6

19. In my experience, this reach percentage is consistent with other effective court-

approved notice programs. In addition, it meets the 70-95% reach standard set forth in the

Federal Judicial Center’s (FJC) Judges’ Class Action Notice and Claims Process Checklist and

Plain Language Guide.

20. The Notices were designed to be “noticed” and understood by Settlement Class

Members. They contained easy-to-read summaries of all the key information affecting

Settlement Class Members’ rights and options. All information required by Federal Rule of Civil

Procedure 23, as well as the Manual for Complex Litigation, Fourth, was incorporated into the

notice documents. The ad units were adequately sized to attract attention to the Notice. Many

courts, as well as the FJC, have approved notices that have been written and designed in a similar

fashion.

21. In my expert opinion, the Settlement Notice Plan and Notices provided the best

notice practicable under the circumstances of this case, satisfied due process, including its

“desire to actually inform” requirement, conformed to all aspects of Federal Rule of Civil

Procedure 23, and comported with the guidance for effective notice articulated in the Manual for

Complex Litigation, Fourth.

I declare under the penalty of perjury under the laws of the United States of America that

the foregoing is true and correct.

Executed this 16th day of September, 2016.

Gina M. Intrepido-Bowden

© 2016 KCC


Exhibit 1






Exhibit 2


Barba v Shire : 160x600

Site : Toyourhealth.com



Site : Altmedicinezone.com



Site : Emedicinehealth.com



Site : Everydayhealth.com



Site : Foxnews.com


Exhibit 3






Documents

SOUTHERN DISTRICT OF FLORIDA Miami-Dade …...i UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami-Dade Division CASE NO. 13-21158-CIV-LENARD/GOODMAN MONICA BARBA and