CASE MANAGEMENT ORDER NO. 5

(ESTABLISHING COMMON BENEFIT FEE AND EXPENSE FUND)

DAVID R. HERNDON, District Judge.

I. SCOPE OF ORDER

This Order is entered to provide for the fair and equitable sharing among plaintiffs, and their counsel, of the burden of services performed and expenses incurred by attorneys acting for the common benefit of all plaintiffs in this complex litigation.

A. Governing Principles—The Common Benefit Doctrine.

The governing principles are derived from the United States Supreme Court's common benefit doctrine, as established in Trustees v. Greenough, 105 U.S. 527 (1881); refined in, inter alia, Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1884); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970); Boeing Co. v. Van Gemert, 444 U.S. 472 (1980); and approved and implemented in the MDL context, in inter alia, In re MGM Grand Hotel Fire Litigation, 660 F.Supp. 522, 525-29 (D. Nev. 1987); and In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d 1006, 1019-21 (5th Cir. 1977). Given that these actions constitute a Mass Tort Litigation, the Court finds the foregoing principles to be instructive.

B. Application.

This Order applies to all cases now pending, or later filed in, transferred to, or removed to, this Court and treated as part of the coordinated proceeding known as In re: Just For Men® Mass Tort Litigation, Master Docket 3:16-cv-00638-DRH. This Order further applies to all plaintiffs' attorneys who sign the "Participation Agreement" attached hereto as Exhibit A.

C. Participation Agreement (Exhibit A).

Exhibit A, attached hereto and incorporated herein, is a voluntary Participation Agreement between plaintiffs' attorneys who have cases pending in some other federal court and/or in state court. The Participation Agreement is a private and cooperative agreement between plaintiffs' attorneys only (Participating Counsel); and not Defendants. Participating Counsel include all members of the Plaintiffs' Steering Committee (PSC) (as designated in Order No. 2) and any other plaintiffs' attorneys who execute the Participation Agreement within twenty (20) days of their first case they have docketed in this Mass Tort Litigation.1 Participating Counsel are entitled to receive the "Common Benefit Work Product." Counsel who choose not to execute the Participation Agreement, are not entitled to receive Common Benefit Work Product, however if non-participating counsel receives Common Benefit Work Product, any other work product created pursuant to this Order, or otherwise benefit by the work performed by the PSC in the Just For Men Mass Tort Litigation, those cases will be subject to an assessment to be determined by this Court and those counsel shall be responsible for payment of the assessments set forth in this Order into the Common Benefit Fund.

II. PLAINTIFFS' LITIGATION FEE AND EXPENSE FUNDS

A. Establishing the Fee and Expense Funds.

At an appropriate time, Plaintiffs' Liaison Counsel ("PLC") will be directed to establish two interest-bearing accounts to receive and disburse funds as provided in this Order (the "Funds"). The first fund shall be designated the "Just for Men® Fee Fund" and the second fund shall be designated the "Just for Men® Expense Fund." These funds will be held subject to the direction of this Court. No party or attorney has any individual right to any of these funds except to the extent of amounts directed to be disbursed to such person by order of the Court. These funds do not constitute the separate property of any party or attorney and are not subject to garnishment or attachment for the debts of any party or attorney except when and as directed to be disbursed as provided by court order to a specific person.

By subsequent Order, the Court will appoint an individual to serve as Escrow Agent to manage the Funds. The Escrow Agent shall keep detailed records of all deposits and withdrawals and will be directed to prepare tax returns and other tax filings in connection with the Funds. The Escrow Agent will turn in time records on a monthly basis to Liaison Counsel reflecting the time spent in managing the Funds. Upon approval by the Court, the foregoing time shall be paid from the Just For Men® Mass Tort Litigation Common Benefit Expense Fund and shall be considered a shared cost in accordance with § III. B.1., below. The PLC shall provide a copy of this Order to the Escrow Agent and the Plaintiffs' Co-Lead Counsel.

B. Payments into the Fee and Expense Funds: The Assessment.

All Plaintiffs and their attorneys who are subject to this Order and who, either agree or have agreed — for a monetary consideration — to settle, compromise, dismiss, or reduce the amount of a claim or, with or without trial, recover a judgment for monetary damages or other monetary relief, including such compensatory and punitive damages, with respect to Just For Men® claims are subject to an assessment of the "gross monetary recovery," as provided herein.

1. Gross monetary recovery.

Gross monetary recovery includes any and all amounts paid to plaintiffs' counsel by Defendants through a settlement or pursuant to a judgment. In measuring the "gross monetary recovery," the parties are to (a) exclude court costs that are to be paid by the defendant; (b) include any payments to be made by the defendant on an intervention asserted by third-parties, such as to physicians, hospitals, and other healthcare providers in subrogation related to treatment of plaintiff and any governmental liens or obligations (e.g., Medicare/Medicaid); and (c) include the present value of any fixed and certain payments to be made in the future. The assessment shall apply to all of the cases of the Plaintiff's attorneys who are subject to this Order that are pending in the Mass Tort Litigation or, to the extent the Plaintiff's attorneys have signed the Participation Agreement, to any state court action in which they have entered their appearance as counsel of record, as well as any unfiled or tolled cases of such attorneys in which they are counsel or co-counsel and have entered into a tolling agreement with Defendants.

2. Assessment Amount.

(a) Early Participation — The assessment amount shall be eight (8) percent (four (4) percent for common benefit attorneys' fees and four (4) percent for costs) for Early Participation Counsel;

(b) Late Participation — The assessment amount shall be ten (10) percent (six (6) percent for common benefit attorneys' fees and four (4) percent for costs) for Late Participation Counsel.

3. Defendants' Obligations.

Defendants and their counsel shall not distribute any settlement proceeds to plaintiff's counsel (or directly to a plaintiff) for a case pending in the Mass Tort Litigation or for a case pending in another jurisdiction in which plaintiff's counsel is counsel of record in the case and defendant has been advised in writing that plaintiff's counsel has signed the Participation Agreement until after defendants' counsel notifies PLC in writing of the existence of a settlement and the name of the individual plaintiff's attorney. The PLC shall have 10 days to notify defendants' counsel in writing as to whether or not they believe the individual plaintiff's attorney's cases are subject to an assessment and the amount (stated as a percentage of the recovery) of the assessment pursuant to this Order. To the extent there is a disagreement as to whether the plaintiff's attorney's cases are subject to the assessment, the PLC, Defendants, and plaintiff's counsel whose case is at issue shall meet and confer and, to the extent necessary, bring the matter to the Court's attention for adjudication as to whether the cases are subject to an assessment. For cases subject to an assessment, defendants are directed to withhold an assessment from any and all amounts paid to plaintiffs and their counsel and to pay the common benefit expense and fee assessments directly into the Funds as a credit against the settlement or judgment. No orders of dismissal of any plaintiff's claim, subject to this Order, shall be entered unless accompanied by a certificate of plaintiff's and defendant's counsel that the assessment, where applicable, will be withheld and will be deposited into the Funds at the same time the settlement proceeds are paid to settling counsel. If for any reason the assessment is not or has not been so withheld, the plaintiff and his counsel are jointly responsible for paying the assessment into the Fund promptly.

III. COMMON BENEFIT EXPENSES

A. Qualified Expenses Eligible for Reimbursement.

In order to be eligible for reimbursement of common benefit expenses, said expenses must meet the requirements of this section and the limitations set forth in the Participation Agreement. Specifically, said expenses must be (a) for the common benefit, (b) appropriately authorized by Co-Lead Counsel or Liaison Counsel, (c) timely submitted, within the defined limitations set forth in this Order, and (d) properly verified.

B. Shared and Held Common Benefit Expenses.

1. Shared Costs.

Shared Costs are costs incurred for the common benefit of the Mass Tort Litigation as an account that has already been established by PLC and to be funded by all members of the PSC and others as determined by the PSC and its designated subcommittees. All Shared Costs must be approved by Plaintiffs' Co-Lead or Liaison Counsel prior to payment. Shared Costs include: (a) Certain Court, filing and service costs; (b) Deposition and court reporter costs for non-case specific depositions; (c) Document Depository: creation, operation, equipment and administration; (d) Plaintiffs' Co-Lead and Liaison Counsel administrative matters (e.g., expenses for equipment, technology, courier services, long distance, telecopier, electronic service, photocopy and printing, secretarial/temporary staff, etc.); (e) PSC group administration matters such as meetings and conference calls; (f) Legal and accountant fees; (g) Generic expert witness and consultant fees and expenses; (h) Printing, copying, coding, scanning (out of house or extraordinary firm cost) (i) Research by outside third party vendors/consultants/attorneys; (j) Common witness expenses including travel; (k) Translation costs; (l) Bank or financial institution charges; and (m) Investigative services.

2. Held Costs.

Held Costs are those that will be carried by each Participating Counsel in the Mass Tort Litigation or state court and reimbursed as and when approved by this Court. Held costs can also include unreimbursed and authorized shared costs. Held Costs are costs incurred for the global benefit of the litigation. Held Costs are those that do not fall into the above Shared Costs categories but are incurred for the benefit of all plaintiffs in general. All costs of a substantial nature that meet these requirements and fall under the following categories shall be considered Held Costs and qualify to be submitted for consideration by the Court for future reimbursement from the Just For Men® Expense Fund.

C. Authorization and Submission.

The Participation Agreement sets forth the guidelines for authorizing and submitting expenses for the common benefit.

D. Expenses Limitations.

1. Travel Limitations.

Except in extraordinary circumstances approved by Plaintiffs Co-Lead or Liaison Counsel, all travel reimbursements are subject to the following limitations:

2. Non-Travel Limitations

E. Verification.

The forms detailing expenses shall be certified by a senior partner in each firm attesting to the accuracy of the submissions. Attorneys shall keep receipts for all expenses. Credit card receipts are an appropriate form of verification so long as accompanied by a declaration from counsel that work was performed and paid for the common benefit.

F. Costs and/or Expenses in Excess of Amounts Available in the Expenses Fund.

Any compensable costs and/or expenses that exceed the amounts available in the Just For Men® Expense Fund may be compensable by the Just For Men® Fee Fund upon Order of the Court.

IV. COMMON BENEFIT WORK.

A. Qualified Common Benefit Work Eligible for Reimbursement.

Only Participating Counsel are eligible for reimbursement for time and efforts expended for the common benefit. Participating Counsel shall be eligible for reimbursement for time and efforts expended for common benefit work, if said time and efforts are (a) for the common benefit, (b) appropriately authorized by Co-Lead Counsel or Liaison Counsel, (c) timely submitted, and (d) approved by this Court.

B. Compensable Common Benefit Work Defined.

As the litigation progresses and common benefit work product of the same type and kind continues to be generated, the PLC and Co-Lead Counsel will assign Participating Counsel with such common benefit work. In the Just For Men® Mass Tort Litigation, common benefit work shall include only work specifically assigned to Participating Counsel by the PLC and Co-Lead Counsel. Examples of common benefit work include, but are not limited to, maintenance and working in the depository; review and document coding; timelines; materials provided to experts; authorized expert retention; the deposition cuts that may be used in a case set for trial; the trial exhibit preparation; the scientific articles assembled; certain PSC activities; discovery; legal research; drafting pleadings and briefs; expert development; and the preparation for and taking of authorized depositions of Defendants and third-party witnesses, and expert depositions.

C. Authorization and Time Keeping.

All time must be authorized and accurately and contemporaneously maintained. Time shall be kept according to these guidelines as set forth in the Participation Agreement.

D. Distributions.

1. Procedures and Forms.

Time and Expense submissions shall be made pursuant to the procedures established by Co-Lead Counsel or Liaison Counsel. Questions regarding the guidelines or procedures or the completion of any form should be directed to Plaintiffs' Co-Lead or Liaison Counsel.

2. Court Approval.

The amounts deposited in the Just For Men® Fee and Expense Funds shall be available for distribution to Participating Counsel who have performed professional services or incurred expenses for the common benefit. No amounts will be disbursed without review and approval by the Court or such other mechanism as the Court may order. Specifically, such sums shall be distributed only upon Order of the Court in Just For Men® Mass Tort Litigation 3:16-cv-6380-DRH. This Court retains jurisdiction over any common benefit award.

Any Counsel who does not sign the Participation Agreement shall not be eligible to receive Common Benefit payments for any work performed or expenses incurred.

3. Special Master.

At the appropriate time, this Court shall appoint a Special Master to make recommendations to this Court on the issues of how any money in the Just For Men® Fee and Expense Funds shall be distributed among Participating Counsel.

IT IS SO ORDERED.

EXHIBIT A TO CMO #5

(Common Benefit Participation Agreement)

THIS AGREEMENT is made this ____ day of _____________, 20__, by and between the Plaintiffs' Steering Committee ("PSC") appointed by the United States District Court for the Southern District of Illinois in Just For Men® Mass Tort Litigation 3:16-cv-00638-DRH and _________________________________ [Name of the Firm Executing the Agreement] (the "Participating Counsel").

WHEREAS, the United States District Court for the Southern District of Illinois has appointed Richard W. Schulte, Roger C. Denton, John J. Driscoll, Kristine K. Kraft, Joseph Osborne, Jon C. Conlin, Angela Mason, Jay Urban and Tad Thomas to serve as members of the PSC to facilitate the conduct of pretrial proceedings in the federal actions relating to the use, marketing, and sales of Just For Men® hair color products.1

WHEREAS, the PSC in association with other attorneys working for the common benefit of plaintiffs have developed or are in the process of developing work product that will be valuable in all proceedings involving Just For Men® personal injuries ("PSC Common Benefit Work Product") and

WHEREAS, the Participating Counsel are desirous of acquiring the PSC Common Benefit Work Product and establishing an amicable, working relationship with the PSC for the mutual benefit of their clients;

NOW THEREFORE, in consideration of the covenants and promises contained herein, and intending to be legally bound hereby, the parties agree as follows:

I. SCOPE OF AGREEMENT

A. Purpose.

This Participation Agreement is a private cooperative agreement between plaintiffs' attorneys to share "Common Benefit Work Product" with regard to personal injury claims resulting from the use of Just For Men® by Participating Counsel pursuant to the Order Establishing Common Benefit Fee and Expense Fund and this Participation Agreement. Plaintiffs' attorneys who execute this Agreement ("Participating Counsel") are entitled to receive the "Common Benefit Work Product" created by those attorneys who have also executed or have been deemed to have executed the Participation Agreement.

B. Early Participation vs. Late Participation. For any counsel who enters into this Participation Agreement within 20 days of the entry of this Order or 20 days of their first case being docketed in the Mass Tort Litigation or any other jurisdiction working cooperatively with the Mass Tort Litigation PSC, the assessment shall be 8% as computed and determined below ("Early Participation"). For any counsel who enters into this Participation Agreement after 20 days of the entry of this Order or 20 days of their first case being docketed in the Mass Tort Litigation or any other jurisdiction working cooperatively with the Mass Tort Litigation PSC (whichever is later), the assessment shall be 10% as computed and determined below ("Late Participation").

C. Rights and Obligations of Participating Counsel.

Upon execution of this Participation Agreement, the PSC will provide access to Participating Counsel, the common benefit work product defined in the Court's Case Management Order to which this Exhibit "A" is attached, including access to the PSC's depository. Participating Counsel agree that all cases in which Participating Counsel has a fee interest, including unfiled cases, tolled cases, and/or cases filed in state and/or federal court, are subject to the terms of this Participation Agreement. Participating Counsel shall produce a list that correctly sets forth the name of each client represented by them and/or in which they have an interest in the attorneys' fee regardless of what that interest is, who has filed a civil action arising from the use, marketing, and/or sale of JUST FOR MEN® together with the Court and docket number of each such case and shall produce a list that contains the name of each client represented by them and/or in which they have an interest in the attorneys' fee regardless of what that interest is, who has not yet filed a civil action arising from the use, marketing, and sale of JUST FOR MEN®. Participating Counsel shall supplement the lists on a quarterly basis and provide this list to Liaison Counsel, Kristine Kraft at kkraft@uselaws.com. The initial list shall be provided within 15 days of signing this Agreement and must be supplemented every 90 days thereafter.

II. AGREEMENT TO PAY AN ASSESSMENT ON GROSS RECOVERY

Subject to the terms of this Agreement and the provisions set forth below and the terms of the corresponding Case Management Order, all Plaintiffs and their attorneys who, either agree or have agreed — for a monetary consideration — to settle, compromise, dismiss, or reduce the amount of a claim or, with or without trial, recover a judgment for monetary damages or other monetary relief, including such compensatory and punitive damages, with respect to JUST FOR MEN® claims are subject to an assessment of the gross settlement amount, "gross monetary recovery," as provided herein.

A. Gross Monetary Recovery Defined.

Gross monetary recovery includes any and all amounts paid to plaintiffs' counsel by Defendants through a settlement or pursuant to a judgment. In measuring the "gross monetary recovery," the parties are to (a) exclude court costs that are to be paid by the defendant; (b) include any payments to be made by the defendant on an intervention asserted by third-parties, such as to physicians, hospitals, and other healthcare providers in subrogation related to treatment of plaintiff and any governmental liens or obligations (e.g., Medicare/Medicaid); and (c) include the present value of any fixed and certain payments to be made in the future. The assessment shall apply to all of the cases of the Plaintiff's attorneys who are subject to this Order that are pending in the Mass Tort Litigation or state court as well as any unfiled or tolled cases of such attorneys in which they are counsel or co-counsel.

B. Assessment Amount.

(a) Early Participation — The assessment amount shall be eight (8) percent (four (4) percent for common benefit attorneys' fees and two (4) percent for costs) for Early Participation Counsel;

(b) Late Participation — The assessment amount shall be ten (10) percent (six (6) percent for common benefit attorneys' fees and four (4) percent for costs) for Late Participation Counsel.

C. Covered Cases.

The assessment amount set forth above and in the related Order shall apply to all cases now pending, or later filed in, transferred to, or removed to, this Court and treated as part of the coordinated proceeding known as In re: Just for Men® Mass Tort Litigation, 3:16-cv-00638-DRH regardless of whether or not the plaintiff's attorney is either Participating or Non-Participating Counsel. Counsel who sign the Participation Agreement further agree that the assessment shall apply to all un-filed cases, tolled cases, and/or cases filed in state court in which they have a fee interest, regardless of the size of that fee interest.

D. Attorney Fee Lien

With respect to each client who they represent in connection with JUST FOR MEN® related claims that are filed or pending in any Federal court, un-filed or subject to a tolling agreement, consistent with ¶ II.B.3 of the associated Case Management Order Establishing Common Benefit Fee and Expense Fund (Order #5) each Participating Counsel shall agree to have Defendants deposit or cause to be deposited in the JUST FOR MEN® Fee and Expense Fund established by Judge Herndon in the Mass Tort Litigation, a percentage proportion of the gross amount recovered by each such client that is equal to the assessment amount. In the event Defendants do not deposit such funds into the Fund, Plaintiff and Plaintiff's Participating Counsel shall deposit or cause to be deposited in the JUST FOR MEN® Fee and Expense Fund, a percentage proportion of the gross amount recovered by each such client that is equal to the assessment amount. Participating Counsel, on behalf of themselves, their affiliated counsel, and their clients, hereby grant and convey to the PSC a lien upon and/or a security interest in any fee generated as a result of any recovery by any client who they represent in connection with any JUST FOR MEN® induced injury and marketing and sales practices, to the full extent permitted by law, in order to secure payment in accordance with the provisions of this Agreement. Participating Counsel will undertake all actions and execute all documents that are reasonably necessary to effectuate and/or perfect this lien and/or security interest.

E. Attorney-Client Contracts.

Both the PSC and Participating Counsel recognize the importance of individual cases and the relationship between case-specific clients and their attorneys. Regardless of the type of settlement or conclusion eventually made in either state or federal cases, the PSC will recommend to this Court that appropriate consideration will be given to individual case contracts between attorneys and their clients.

III. COMMON BENEFIT EXPENSES.

A. Qualified Expenses Eligible for Reimbursement.

In order to be eligible for reimbursement of common benefit expenses, said expenses must meet the requirements of this section. Specifically, said expenses must be (a) for the common benefit, (b) appropriately authorized and timely submitted, (c) within the defined limitations set forth in this Participation Agreement and associated Order, and (d) verified.

B. Authorization and Submission of Expenses.

Participating Counsel must submit expenses consistent with the Order of this Court. Expenses spent on matters common to all claimants in Just For Men® Mass Tort Litigation 3:16-cv-00638-DRH that have been assigned by the Co-Lead or Liaison Counsel.

The Special Master shall review all expenses submitted for reimbursement and evaluate whether they were expended in furtherance of the common good in making recommendations as to whether they should be reimbursed.

C. Verification.

The forms detailing expenses shall be certified by a senior partner in each firm attesting to the accuracy of the submissions. Attorneys shall keep receipts for all expenses. Credit card receipts are an appropriate form of verification so long as accompanied by a declaration from counsel that work was performed and paid for the common benefit.

Expense records shall be electronically submitted to Kristine K. Kraft, of Schlichter, Bogard & Denton at kkraft@uselaws.com on a monthly basis. Untimely submission of expense records will result in a waiver of said expenses.

IV. COMMON BENEFIT WORK.

A. Qualified Common Benefit Work Eligible for Reimbursement.

In order to be eligible for reimbursement for time and efforts expended for common benefit work, said time and efforts must be (a) for the common benefit, (b) appropriately authorized, (c) timely submitted and (d) approved by this Court.

B. Eligibility.

Participating Counsel are prohibited from sharing Common Benefit Work Product with Non-Participating Counsel, as defined herein. Participating Counsel eligible to perform common benefit authorized by Plaintiffs' Co-Lead Counsel and Liaison Counsel.

C. Authorization.

Time spent on matters common to all claimants in Just For Men® Mass Tort Litigation 3:16-cv-00638-DRH must be assigned by the Co-Lead or Liaison Counsel to be eligible for consideration for common benefit. No time spent on developing or processing individual issues in any case for an individual client (claimant) will be considered or should be submitted, nor will time spent on unauthorized work.

(1) Examples of Authorized and Unauthorized work include:

D. Time Keeping and Submission of Time Records.

All time must be accurately and contemporaneously maintained. Participating Counsel shall keep a daily record of their time spent in connection with common benefit work on this litigation, indicating with specificity the hours, location and particular activity (such as "conducted deposition of John Doe."). Time entries that are not sufficiently detailed will not be considered for common benefit payments. All common benefit work time for each firm shall be maintained in a tenth-of-an-hour increment.

E. Distribution of Fees.

1. No Individual Rights to the Funds — No party or attorney has any individual right to any of these funds except to the extent of amounts directed to be disbursed to such person by Order of this Court. These funds will not constitute the property of any party or attorney or be subject to garnishment or attachment for the debts of any party or attorney except when and as directed to be disbursed as provided by court order to a specific person. These limitations do not prelude a party or attorney from transferring, assigning, or creating a security interest in potential disbursements from the fund if permitted by applicable state laws and if subject to the conditions and contingencies of this Agreement.

2. Court Approval — The amounts deposited in the JUST FOR MEN® Fee Fund shall be available for distribution to attorneys who have performed professional services or incurred expenses for the common benefit. The Mass Tort Litigation Court retains jurisdiction over any common benefit award. Each Participating Counsel who does common benefit work has the right to present their claim(s) for compensation prior to any recommendation to the Court.

3. Special Master — I understand that at a later date the Court will appoint a Special Master to make recommendations to the Court on the appropriate distributions from the common benefit and expense funds.

___ EARLY PARTICIPATION ELECTION

I elect to be an Early Participating Counsel and hereby certify that I am signing this Participation Agreement within 20 days of (a) the entry of the Common Benefit Order in Mass Tort Litigation 3:16-cv-00638-DRH, (b) the date my first case was docketed in the Mass Tort Litigation, or (c) the date my first case was docketed in state court. I also certify that have the authority and power to bind my law firm into this Participation Agreement.

___ LATE PARTICIPATION ELECTION

I elect to be a Late Participating Counsel and hereby certify that I am signing this Participation Agreement after the passage of 20 days since (a) the entry of the Common Benefit Order in Mass Tort Litigation 3:16-cv-00638-DRH, (b) the date my first case was docketed in the MDL, or (c) the date my first case was docketed in state court. I also certify that have the authority and power to bind my law firm into this Participation Agreement.

___ NON-PARTICIPATION ELECTION

I elect to be a Non-Participating Counsel and I understand that I will not be entitled to Mass Tort Litigation common benefit work product. I also certify that have the authority and power to bind my law firm into this Participation Agreement.

AND