COURT FILE NO.: CV-15-527760-00CP
COURT FILE NO.: CV-15-529000-00CP
DATE: 20221130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON HARPER and GERALD HARPER
Plaintiffs
- and -
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
AND BETWEEN:
LINDA-SUE MIDDLETON and HOWARD BOSSCHER
Plaintiffs
- and -
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
Charles M. Wright and Jill S. McCartney for the Plaintiffs
Proceeding under the Class Proceedings Act, 1992
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION
[1] In 2019, pursuant to the [Class Proceedings Act, 1992],[^1] Class Counsel and the Representative Plaintiffs sought approval of a $21.0 million settlement and approval of Class Counsel’s fees in two certified class actions; namely: Harper v. American Medical Systems Canada Inc. (Court File No.: CV-15-527760-00CP) and Middleton v. American Medical Systems Canada Inc. (Court File No.: CV-15-529000-00CP).
[2] Class Counsel also sought approval of fees in the amount of $4,170,000, plus applicable taxes, plus disbursements incurred up to September 11, 2019 in the amount of $255,006.83, plus applicable taxes. In addition, Class Counsel sought leave to bring future applications for an additional $1.0 million in legal fees and disbursements incurred subsequent to September 11, 2019, plus applicable taxes.
[3] On October 4, 2019, I granted the settlement approval and the fee approval.[^2]
[4] The administration of the settlement is almost completed, and Class Counsel applies for payment of the remaining counsel fee.
[5] The background to this motion is as follows.
[6] The Class Members in the two class actions were women who were implanted with the Defendants’ Pelvic Mesh Devices. These devices contained synthetic, polypropylene mesh that are surgically inserted for the purpose of providing support for pelvic floor muscles to treat stress urinary incontinence or pelvic organ prolapse.
[7] On October 4, 2019, I approved a settlement in which $20,858,488.48, was to be paid out over two rounds of claims.
[8] The law firms of Siskinds LLP, Siskinds Desmeules Avocats s.e.n.c.r.l., Rochon Genova LLP, and Merchant Law Group LLP (collectively “Class Counsel”) invested substantial time and incurred significant expense to advance this litigation over the course of many years, and at the time of Settlement Approval, Class Counsel sought a counsel fee of $5,170,000 (plus disbursements and applicable taxes), which represented 25% of the Settlement funds. Class Counsel sought approval of $4,170,000 in fees (plus disbursements incurred up to September 11, 2019, and applicable taxes) and leave to seek approval of a further $1 million in fees (plus applicable taxes and additional disbursements incurred after September 11, 2019). Counsel proposed that $500,000 of the additional fee would be requested when Class Members’ claims are paid after the Initial Claim Deadline and the other $500,000 would be requested at the conclusion of the administration of the settlement. I approved the counsel fee.
[9] Following the distribution of payments for Initial Claims, Class Counsel brought a request for approval of a further $500,000 in fees (plus applicable taxes and additional disbursements). On May 13, 2021, I approved this request.
[10] On July 27, 2022, the Supplemental Claims Deadline expired for Settling Claimants to submit Supplemental and Late Claims to the Supplemental Compensation Pool in the settlement.
[11] On November 4, 2022, the Claims Administrator, RicePoint, confirmed that each Settling Claimant had been notified as to the approval or rejection of his or her claim and the points awarded to each claim. Settling Claimants were granted a 30-day period from the date notice was sent to appeal the rejection and/or classification of their claims.
[12] Following the completion of the appeal period, the Claims Administrator will begin the process of issuing and mailing cheques to all Approved Claimants.
[13] RicePoint has advised that it anticipates payments for Supplemental and Late Claims to be distributed on or about December 16, 2022, assuming appeals do not cause any delays. There were no appeals filed regarding Initial Claims, and RicePoint has not received any appeals regarding Supplemental Claims to date.
[14] With Supplemental and Late Claims set to be paid shortly, Class Counsel bring a motion for approval of further Class Counsel Legal Fees in the amount of $500,000.00 (plus applicable taxes). Class Counsel also seek the approval of additional disbursements (plus applicable taxes) not previously paid.
[15] Class Counsel’s total documented time since the litigation began over a decade ago (exclusive of applicable taxes and through to November 21, 2022) is now as follows: (a) Siskinds LLP, $2,330,703.00; (b) Rochon Genova LLP, $417,660.25; (c) Siskinds Desmeules s.e.n.c.r.l., $136,082.75; and (d) Merchant Law Group LLP, $287,512.50. The total is $3,171,958.50.
[16] Class Counsel’s unpaid disbursements incurred for the benefit of the Class (exclusive of applicable taxes and through to November 21, 2022) in these matters are as follows: (a) Siskinds LLP, $1,033.73; and (b) Merchant Law Group LLP, $805.84. The total is $1,839.57.
[17] The value of the additional legal fees sought would result in a potential total approved fee to date of $5,170,000, which is a multiplier of less than 1.7 on Class Counsel’s total docketed time. If the current fee request is granted, the aggregate fees and disbursements approved to date will remain lower than the terms of the Retainer Agreements entered into with the Representative Plaintiffs.
[18] I set out the law associated with fee approval in my initial decision and need not repeat that discussion here. Applying that law to the circumstances of the immediate case, I approve Class Counsel’s fee request.
[19] I have signed the Order.
Perell, J.
Released: November 30, 2022.
COURT FILE NO.: CV-15-527760-00CP
COURT FILE NO.: CV-15-529000-00CP
DATE: 20221130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON HARPER and GERALD HARPER
Plaintiffs
- and -
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
AND BETWEEN:
LINDA-SUE MIDDLETON and HOWARD BOSSCHER
Plaintiffs
- and -
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
REASONS FOR DECISION
PERELL J.
Released: November 30, 2022
[^1]: S.O. 1992, c. 6.
[^2]: Harper v. American Medical Systems Canada Inc., 2019 ONSC 5723.