IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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IN RE DIET DRUGS )
(PHENTERMINE/FENFLURAMINE/ ) MDL NO. 1203
DEXFENFLURAMINE) PRODUCTS )
LIABILITY LITIGATION )
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THIS DOCUMENT RELATES TO: )
ALL ACTIONS )
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SHEILA BROWN, et al. v. WYETH ) CIVIL ACTION NO. 99-20593
(formerly American Home Products )
Corporation) )
SIXTH AMENDMENT TO NATIONWIDE CLASS
ACTION SETTLEMENT AGREEMENT WITH
AMERICAN HOME PRODUCTS CORPORATION
Dated: January 10, 2003
To facilitate the implementation of the Parties' intentions underlying the
November 18, 1999 Nationwide Class Action Settlement Agreement with American
Home Products Corporation, ("Settlement Agreement"), and to clarify various
matters arising under the Settlement Agreement, all for the benefit of the
Settlement Class, it is hereby stipulated and agreed among the Parties that,
subject to the approval of the Trial Court, the Settlement Agreement is amended
as follows:
1. Clarification of "Claiming" Matrix Compensation Benefits. To clarify the
impact of the submission of a GREEN FORM to the Interim Claims Administrators or
the AHP Settlement Trust, the last sentence of Section IV.D.4.b [ASA p. 56] is
deleted and replaced in its entirety by the following:
A Class Member may not exercise a Back-End Opt-Out right after
claiming any Matrix Compensation Benefits. For this purpose, a
Class Member is claiming Matrix Compensation Benefits if the
Interim Claims Administrators and/or the Trust receive: (i) Part
I of a GREEN FORM signed by the Class Member (or Representative
Claimant of such Class Member); and/or (ii) Part II of a GREEN
FORM signed by a physician relating to the Class Member and a
BLUE FORM signed by that Class Member (or Representative Claimant
of such Class Member) in which the Class Member (or
Representative Claimant of such Class Member) indicated a belief
or assertion of a Matrix-Level condition.
2. Creation of the Sixth Amendment Opt-Out. To address the issue of the
status of Class Members who have claimed Matrix Compensation Benefits by May 3,
2003, if the Maximum Available Fund B Amount is reduced to $255 million or less,
the following is added to the Settlement Agreement as Section IV.D.5 [ASA p.
58]:
5. SIXTH AMENDMENT OPT-OUT
a. ELIGIBILITY: A Class Member (a Diet Drug Recipient or
Representative Claimant of such Diet Drug Recipient) who would
otherwise qualify to exercise a right of Back-End Opt-Out under
Section IV.D.4 if the Class Member had not claimed Matrix
Compensation Benefits, and who has claimed Matrix Compensation
Benefits (within the meaning of Section IV.D.4.b) on or before
May 3, 2003, is eligible to exercise a Sixth Amendment Opt-Out
if: (i) the Trust has determined, after audit of the claim, that
the Class Member qualifies for Matrix Compensation Benefits,
including without limitation that the Class Member satisfies the
requirements of the Settlement Agreement for medical eligibility
for Matrix Compensation Benefits; (ii) the Class Member has not
received any Matrix Compensation Benefits from the Trust or
received payment of any settlement amount from Wyeth; (iii) the
Maximum Available Fund B Amount at such time is $255 million or
less, the Class Member's claim for Matrix Compensation Benefits
was included in a Fund B Level Notice (as defined below), a Fund
B Quarterly Notice, or Settlement Fund Quarterly Notice, and a
Fund B Suspension (as defined below) has occurred; (iv) AHP has
elected not to deposit additional funds into Fund B to pay such
Class Member's Matrix Compensation Benefits; and (v) the Class
Member agrees in writing that if the Class Member files any
action as a Sixth Amendment Opt-Out, the Class Member will name
only AHP as the defendant and no other defendants, the Class
Member (and any Derivative Claimants of such Class Member) will
be the sole plaintiff(s) in such action, and the Class Member
will not agree to or cause consolidation of such action with any
other claims or actions (other than consolidation for purposes of
pretrial discovery pursuant to 28 U.S.C.ss. 1407 or a similar
state statute) and will dismiss such action if consolidation is
nonetheless ordered by any court, subject to the right to re-file
the action in conformity with this Section IV.D.4.c within 120
days of any such dismissal.
b. METHOD OF EXERCISE: Each Class Member who wants to exercise a
Sixth Amendment Opt-Out must do so by completing, signing, and
timely submitting an ORANGE FORM #4 (in the form to be adopted by
the Trust and the Parties if the conditions giving rise to a
Sixth Amendment Opt-Out should occur) to the Trust and AHP
postmarked no later than 120 days after the date of a notice from
the Trust to the Class Member that the Class Member is eligible
for the exercise of a Sixth Amendment Opt-Out.
c. EFFECT OF EXERCISE: The Sixth Amendment Opt-Out is subject to all
the provisions of Section IV.D.4.c relating to the Back-End
Opt-Out and to the additional provisions imposed pursuant to
Section IV.D.5.a(v) above.
d. IMPLEMENTATION OF THE SIXTH AMENDMENT OPT-OUT: To effectuate this
Section IV.D.5, if deposit by AHP into the Trust of the amount
requested in a Fund B Quarterly Notice or Settlement Fund
Quarterly Notice would reduce the Maximum Available Fund B amount
to $255 million or less, the Trust shall notify AHP in writing of
this circumstance at the time that it issues such Fund B
Quarterly Notice or Settlement Fund Quarterly Notice and set
forth the amount that if deposited would cause the Maximum
Available Fund B Amount to be reduced below $255 million (a "Fund
B Level Notice"), and shall identify the Class Members whose
claims form the basis of the Notice and the gross amount of
Matrix Compensation Benefits that the Trust finally determined
each Class Member was entitled to be paid. Within fifteen days
after receipt of a Fund B Quarterly Notice or Settlement Fund
Quarterly Notice accompanied by a Fund B Level Notice, AHP shall
advise the Trust as to whether it intends to deposit the full
amount requested in the Fund B Level Notice. Any deposits by AHP
of amounts described in a Fund B Level Notice shall not reduce
the Maximum Available Fund B Amount below $255 million. If AHP
fails to respond timely to a Notice of Fund B Level or notifies
the Trust that it does not intend to pay the full amount
requested in the Notice of Fund B Level, then a "Fund B
Suspension" has occurred. If a Fund B Suspension has occurred:
(i) AHP shall not be entitled to claim or receive any Credits
under Section VII.A unless such Credits have been claimed
and applied to reduce the Maximum Available Fund B Amount
before the date of the Notice of Fund B Level that results
in a Fund B Suspension;
(ii) Subject to Section III.C.4 and the Settlement Trust
Agreement, within ten Business Days after the date of the
Fund B Suspension, and in subsequent Fiscal Quarters within
ten Business Days after the date of a Fund B Quarterly
Notice or Settlement Fund Quarterly Notice, AHP shall
deposit into Fund B the portion of the amount requested in
the Fund B Quarterly Notice or Settlement Fund Quarterly
Notice attributable to supplemental claims by eligible Class
Members for Matrix Compensation Benefits pursuant to Section
IV.C.3 ("Supplemental Matrix Claims") as identified by the
Trust in the Fund B Quarterly Notice or Settlement Fund
Quarterly Notice and to maintain the Administrative Reserve
in Fund B pursuant to Section III.C.3, with such deposit
applied to reduce the Maximum Available Fund B Amount, and
the Trust shall pay such Supplemental Claims in accordance
with this Settlement Agreement;
(iii)Within ten Business Days after the date of the Fund B
Suspension, and in subsequent Fiscal Quarters within ten
Business Days after the date of a Fund B Quarterly Notice or
Settlement Fund Quarterly Notice, AHP shall elect in writing
to the Trust which, if any, of the claims for Matrix
Compensation Benefits identified in the Fund B Quarterly
Notice or Settlement Fund Quarterly Notice as ready for
payment shall be paid by the Trust, and with such election
AHP shall deposit into Fund B the amounts necessary for such
payments. Deposits for this purpose shall not reduce the
Maximum Available Fund B Amount.
e. PROCESSING OF CLAIMS IF A FUND B SUSPENSION OCCURS: If a Fund B
Suspension occurs, the Trust shall continue to process claims for
Matrix Compensation Benefits to a Final Determination for each
Class Member who has filed a GREEN FORM with the Trust, and shall
continue to provide AHP with Fund B Quarterly Notices or
Settlement Fund Quarterly Notices stating the amount of Matrix
Compensation Benefits subject to Final Determination by the Trust
as of the close of the Fiscal Quarter preceding the Fund B
Quarterly Notice. Each such Fund B Quarterly Notice or Settlement
Fund Quarterly Notice issued by the Trust to AHP shall identify
each Class Member whose claim for Matrix Compensation Benefits
was subject to a Final Determination by the Trust during the
Fiscal Quarter preceding the date of the Fund B Quarterly Notice
and shall state the gross amount of Matrix Compensation Benefits
that the Trust finally determines each Class Member was entitled
to be paid. The provisions of Sections IV.D.5.d(ii) through (iii)
above shall apply to each such Fund B Quarterly Notice or
Settlement Fund Quarterly Notice.
3. Notice of this Amendment. After approval of this Sixth Amendment by the
Trial Court, the Trust may transmit a written notice of its terms to all
individuals whose names and addresses are contained in the Notice List (as
defined in Section VI.B.2 of the Settlement Agreement), and shall post such
notice on the official settlement website, www.settlementdietdrugs.com. This
notice must be approved by the Parties and the Trial Court before its
transmission or posting. Before approval of this Sixth Amendment by the Trial
Court, the Trust and the Parties may provide such notice of the pendency of the
Sixth Amendment as approved by the Trial Court.
4. Approval of this Amendment. The Parties shall promptly seek approval of
this Sixth Amendment by the Trial Court. This Sixth Amendment shall not become
effective unless and until the Trial Court enters an Order approving this Sixth
Amendment in its entirety. If such approval does occur, then this Sixth
Amendment shall be binding on the Parties and shall remain in full force and
effect; provided, however, that if Pretrial Order No. 2662, entered by the Trial
Court on November 26, 2002, is at any time modified or subject to a stay that
causes a material reduction in the number of claims for Matrix Compensation
Benefits subject to audit, then this Sixth Amendment at Wyeth's option (which
shall be exercised by Wyeth in writing within thirty days after any event
triggering this section) shall become void and have no further force or effect.
IN WITNESS WHEREOF, the Parties have duly executed this Sixth Amendment to
Nationwide Class Action Settlement Agreement between AHP and the Class
Representatives, by their respective counsel as set forth below, effective on
January 10, 2003.
WYETH (formerly AMERICAN HOME
PRODUCTS CORPORATION)
BY:_________________________________________
Louis L. Hoynes, Jr.
Executive Vice President and General Counsel
Date: ________________________________
CLASS COUNSEL
FOR THE PLAINTIFFS' MANAGEMENT
COMMITTEE:
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Arnold Levin, Esquire Gene Locks, Esquire
LEVIN, FISHBEIN, SEDRAN & BERMAN GREITZER & LOCKS
510 Walnut Street, Suite 500 1500 Walnut Street, 20th Floor
Philadelphia, PA 19106 Philadelphia, PA 19102
215-592-1500 800-828-3489
Date: ___________________________ Date: ___________________________
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Michael D. Fishbein, Esquire Sol H. Weiss, Esquire
LEVIN, FISHBEIN, SEDRAN & BERMAN ANAPOL SCHWARTZ WEISS COHAN
510 Walnut Street, Suite 500 FELDMAN & SMALLEY, P.C.
Philadelphia, PA 19106 1900 Delancey Place
215-592-1500 Philadelphia, PA 19103
215-735-2098
Date: ___________________________ Date: ___________________________
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Stanley Chesley, Esquire Charles R. Parker, Esquire
WAITE, SCHNEIDER, BAILESS & CHESLEY HILL & PARKER
1513 Central Trust Tower 5300 Memorial, Suite 700
Fourth & Vine Streets Houston, TX 77007-8292
Cincinnati, OH 45202 713-868-5581
513-621-0267
Date: ___________________________ Date: ___________________________
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John J. Cummings, Esquire
CUMMINGS, CUMMINGS & DUDENHEFER
416 Gravier Street
New Orleans, LA 70130
504-586-0000
Date: ___________________________
FOR SUBCLASS 1(a): FOR SUBCLASS 1(b):
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Diane Nast, Esquire Richard Lewis, Esquire
ROD & NAST COHEN, MILSTEIN, HAUSFELD
801 Estelle Drive & TOLL
Lancaster, PA 17601 1100 New York Avenue, N.W.
712-892-3000 Suite 500, West Tower
Washington, D.C. 2005-3934
(202) 408-4600
Date: ___________________________ Date: ___________________________
FOR SUBCLASS 2(a): FOR SUBCLASS 2(b):
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Mark W. Tanner, Esquire R. Eric Kennedy, Esquire
FELDMAN, SHEPHERD & WOHLGELERNTER WEISMAN, GOLDBERG, WEISMAN &
1845 Walnut Street, 25th Street KAUFMAN
Philadelphia, PA 19103 1600 Midland Building
215-567-8300 101 Prospect Avenue West
Cleveland, OH 44115
216-781-1111
Date: ___________________________ Date: ___________________________
FOR SUBCLASS 3:
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Richard Wayne, Esquire
STRAUSS & TROY
The Federal Reserve Building
150 East 4th
Cincinnati, OH 45202-4018
513-621-2120
Date: ___________________________