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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

United States District Court, S.D. New York


February 4, 2004.

In re: REZULIN PRODUCTS LIABILITY LITIGATION, This Document Relates to: All Cases

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

PRETRIAL ORDER NO. 230 (Common Benefit Work Fund Procedures)
In Pretrial Order No. 67 (Escrow Account to Fund Any Award for Common Benefit Work), this Court established procedures for the creation of a CRIS ("Court Registry Investment System") Account to serve as an escrow account to fund any award for common benefit work performed in these MDL proceedings. Pretrial Order No. 128 (Modification of Pretrial Order No. 67) provided for the appointment of a Special Master to manage the CRIS Account created pursuant to Pretrial Order No. 67. After receiving comments from the parties, and with the approval of the Court, the Special Master was to establish procedures for the payment of funds pursuant to Pretrial Order No. 67 and for the proper verification that the parties are in compliance with Pretrial Order No. 67. In Pretrial Order No. 130 (Appointment of Special Master), the Court appointed Michelle Rosenberg to perform the duties of Special Master as set forth in Pretrial Order No. 128.

The Special Master, after conferring with the defendants and representatives of the Plaintiffs' Executive Committee (PEC), has proposed a procedure for the implementation of Pretrial Orders No. 67 and 128, and the Court finds that procedure to be acceptable. Accordingly, it is hereby

  ORDERED, that Pretrial Orders No. 67 and 128 are supplemented and shall be Page 2 implemented as follows:

  1. Paragraph 1 of Pretrial Order No. 67, and all of the definitions set forth therein, are incorporated by reference.

  2. The Special Master is to deposit all Escrow Amounts received pursuant to the Pretrial Orders No. 67 and 128 in the CRIS Account.

  3. Except as specifically provided herein, all funds held in the CRIS Account, including any interest earned thereon, shall be disbursed only upon the Order of this Court.

  4. Any taxes owed on interest earned in the CRIS Account shall be paid by the Special Master from the common benefit funds on deposit in the CRIS Account. Neither the defendants, their counsel, nor the PEC shall be entitled to interest generated from the CRIS Account. This Court imposes no responsibility upon them for paying taxes on any such interest.

  5. The fees and expenses of the Special Master shall be paid from the CRIS Account upon application to and approval by the Court. Neither the defendants, their counsel, nor the PEC shall have responsibility for paying any such fees or expenses.

  6. Upon making any Claim Payment in any Federal Rezulin Case or any Electing State Rezulin Case, each defendant shall fully complete a Tender of Payment Form. A copy of the Tender of Payment Form approved by the Court is attached as Exhibit 1. Each defendant who makes a Claim Payment subject to the terms of Pretrial Order No. 67 shall require that each claimant/plaintiff or his or her counsel fully complete plaintiff's portion of the Tender of Payment Form before defendant distributes any payment of settlement/judgment monies to any claimant/plaintiff or their counsel. Every claimant/plaintiff's counsel (and their firms) receiving any portion of a fee from the settlement/judgment must be listed on the form.

  7. At or before the distribution of any Claim Payment, the defendant shall Page 3 forward a cashier's check or wire transfer for the Escrow Amount, along with a completed copy of the authorized Tender of Payment Form, to the Special Master. All wire transfers must be pre-approved by the Special Master in advance.

  8. Upon receipt of Escrow Amounts, the Special Master shall immediately deposit those funds into the CRIS Account and complete the "For Special Master's Use Only" section of the Tender of Payment Form. The Special Master shall forward one copy of the completed Tender of Payment Form to each of the "Remitting Counsel" and the "Opposing Counsel" identified on the Tender of Payment Form, using envelopes marked "Personal and Confidential." The Special Master shall not send the Tender of Payment Form, or disclose any of its contents, to any other person or entity.

  9. The Special Master shall maintain copies of the Tender of Payment Forms and keep records so that in the event that the Court directs a refund of any CRIS Account funds at any time, the Special Master will be able to account accurately for and distribute those funds as this Court may direct.

  10. There shall be no requirement for defendants to complete Tender of Payment Forms to the extent that defendants have withheld Escrow Amounts pursuant to Pretrial Order No. 67 but, pursuant to Pretrial Order No. 128, have delayed payment into a CRIS Account until the entry of this Order. All such sums shall be paid to the Special Master within 30 days of the entry of this Order, including interest accrued at the same rate at which it would have accrued in a CRIS account from the date of that Claim Payment until the date that payment is made to the Special Master. Defendants shall provide to the Special Master all documentation requested by her to verify all of the relevant identifying information relating to each of such Claim Payments, and that all appropriate Escrow Amounts have been deducted from all Claim Payments subject to Pretrial Order No. 67. The Page 4 Special Master shall certify to the Court and to the PEC that the appropriate amounts have been deducted and paid into the CRIS Account.

  11. Except upon Order of this Court, the Special Master shall not disclose to anyone the identities of settlingparties, the amount of settlements, or any other information disclosed to her pursuant to the Orders of this Court or via the Tender of Payment Forms.

  12. Any plaintiff or plaintiff's counsel whose case or claim has been subjected to the withholding of an Escrow Amount pursuant to Pretrial Order No. 67 and who disputes the application of Pretrial Order No. 67 to that Claim Payment is instructed to make a motion, pursuant to the Federal Rules of Civil Procedure and the Local Rules of this Court, seeking relief from the application of Pretrial Order No. 67 to his or her Claim Payment that sets forth with particularity the grounds for such relief. Any such motion shall be made within 30 days of receipt by such plaintiff or plaintiff's counsel of the Claim Payment. Any such motion shall be filed "Under Seal" in such a way that protects the confidentiality of the settling parties and, unless directed otherwise by the Court, shall not reveal the dollar value of the Claim Payment or the Escrow Amount in dispute.

  13. If a defendant has paid an Escrow Amount to the Special Master for deposit into the CRIS Account pursuant to this Order and Pretrial Orders No. 67 and 128, that defendant and its counsel are absolved of any further responsibility involving that Escrow Amount including, without limitation, any need to refund that Escrow Amount in the event a determination is made that a particular Claim Payment was not subject to the deduction of an Escrow Amount.

  14. If a defendant has paid an Escrow Amount in a case pursuant to Pretrial Orders No. 67 and 128, and this Order, defendant and its counsel shall not be subject to complaints by that plaintiff or his or her counsel in any forum. If for any reason a case is subject to the terms of Pretrial Orders No. 67 and 128 and of this Order but defense counsel is unaware of that fact and an Escrow Page 5 Amount is not withheld, the settling plaintiff and its counsel shall be jointly responsible for promptly paying the Escrow Amount to the Special Master for deposit into the CRIS Account. When defendants and their counsel are not informed that a case is an Electing State Rezulin Case, they shall not be responsible for withholding and paying Escrow Amounts, except that the Court reserves the right to grant appropriate relief for any willful violation of its Orders by a settling defendant or its counsel.

  15. The Special Master shall maintain a ledger of all transactions relating to the CRIS Account including, without limitation, a record of deposits, interest earned, taxes paid and withdrawals.

  16. The Special Master shall report to the Court from time to time, or upon a schedule to be set by the Court, the balance on deposit in the CRIS Account together with a summary of the information supplied to the Special Master by the parties at the time that Escrow Amounts are deposited in such a manner that protects the confidentiality of any settlements but which provides a sufficient basis for the Special Master to confirm to the Court that the amounts deposited are the amounts required to be paid pursuant to this Order and pursuant to Pretrial Orders No. 67 and 128.

  SO ORDERED. Page 1

  EXHIBIT 1

  ***CONFIDENTIAL***

 

TENDER OF PAYMENT TO THE MDL 1348 CRIS ACCOUNT
FAX FORM TO: Michele Rosenberg, Special Master SECURED FACSIMILE: 212-557-3936
  SECTION I — CASE INFORMATION: (Must be completed in full by remitting counsel)

  CASE NAME: ________________________________________________

  CIVIL ACTION NUMBER: __________________________________

  VENUE: [ ] U.S.D.C. [ ] State

  SECTION II — SETTLEMENT INFORMATION: (Must be completed in full by remitting counsel)

  A. IF LUMP SUM SETTLEMENT, please complete B. IF INSTALLMENT SETTLEMENT, please complete

 

SETTLEMENT AMOUNT $__________ SETTLEMENT AMOUNT $_________ (Based in Present Value)
PERCENTAGE ALLOCATED [ ] 4% (State) PERCENTAGE ALLOCATED [ ] 4% (State)
PER SETTLEMENT AGREEMENT [ ] 6% (Federal) PER SETTLEMENT AGREEMENT [ ] 6% (Federal)
REMITTANCE AMOUNT $__________ REMITTANCE AMOUNT $_________
SECTION III — COUNSEL INFORMATION:
REMITTING (DEFENSE) COUNSEL — OPPOSING (PLAINTFF'S) COUNSELOR CLAIMANT — To be completed by Defense Counsel To be completed by Plaintiff's Counsel or Claimant
NAME: ________________________________ NAME: ________________________________
FIRM: ________________________________ FIRM: ________________________________
ADDRESS: _____________________________ ADDRESS: _____________________________
  PHONE NO.: ___________________________ PHONE NO.: ___________________________ Page 2

  FACSIMILE NO.: _______________________ FACSIMILE NO.: _______________________

  REPRESENTING: ________________________ REPRESENTING: ________________________

  ***CONFIDENTIAL***

  OPPOSING (PLAINTFF'S) COUNSEL OR CLAIMANT OPPOSING (PLAINTFF'S) COUNSEL OR CLAIMANT

  NAME: ________________________________ NAME: ________________________________

  FIRM: ________________________________ FIRM: ________________________________

  ADDRESS: _____________________________ ADDRESS: _____________________________

  PHONE NO.: ___________________________ PHONE NO.: ___________________________

  FACSIMILE NO.: _______________________ FACSIMILE NO.: _______________________

  REPRESENTING: ________________________ REPRESENTING: ________________________

  (Attach additional sheets if necessary)

  SECTION IV — PAYMENT INSTRUCTIONS: (Part B to be completed by remitting counsel, if applicable)

 

A. IF BY CHECK. B. IF BY WIRE TRANSFER. PLEASE NOTE CIVIL ACTION PLEASE COMPLETE THE NUMBER ON YOUR CASHIER'S CHECK AND FORWARD FOLLOWING INFORMATION AND FORWARD THE THE REMITTANCE AMOUNT SPECIFIED IN SECTION REMITTANCE AMOUNT SPECIFIED IN SECTION II II AS FOLLOWS: TO THE ACCOUNT NOTED BELOW:
MAKE CASHIER'S CHECK PAYABLE TO: WIRE FROM:
"MDL 1348 CRIS ACCOUNT" BANK NAME: _______________________________
MAIL CHECK AND THIS FORM TO: ADDRESS: _________________________________
Michele Rosenberg ACCOUNT NO.: _____________________________ MDL 1348 Special Master Cornick, Garber & Sandier, LLP ABA NO.: _________________________________ 630 Third Avenue New York, N.Y. 10017
  WIRE TO MDL 1348 CRIS ACCOUNT: In Re Rezulin Products Liability Litigation (MDL-1348) Master File No. 00 Civ. 2843 (LAK) United States Treasury Location 4654 ABA NO. 021030004 Page 3

  SECTION V — SIGNATURES: (Remitting counsel is responsible for obtaining authorized signature for both counsel)

20040204

© 1992-2004 VersusLaw Inc.



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