Full opinion text
OPINION SPIEGEL, Senior District Judge. This matter is before the. Court on the Sixth Circuit’s July 19, 2000 Order Reversing the Class Action Settlement (doc. 903); the Court’s November 20, 2000 Order Preliminarily Approving the Settlement (doc. 964); Defendants TPLC’s and Teletronics’ Motion in Support of the Proposed Settle1 ment Agreement (doc. 1016); the PSC’s Motion in Support of the Proposed Settlement Agreement (doc. 1018); Defendants Pacific Dunlop Ltd.’s and Nucleus’s Joint Motion in Support of the Proposed Settlement Agreement (doc. 1021); and Public Citizen’s Memoranda in Opposition to the Proposed Settlement Agreement (docs. 1004,1005,1024 & 1096). In addition, the Court held an all-day Fairness Hearing in this matter on February 15, 2001, which was open to the all of the class members, Counsel representing the Parties to this action, any Objectors or opt-out claimants to the proposed settlement, and to Public Citizen, as amicus curiae (doc. 1035). I.BACKGROUND A. Introduction 1. The Complaint. This case involves a nationwide products liability action, alleging that Defendant TPLC Holdings, Incorporated (formerly, Telectronics Pacing Systems, Incorporated) and Defendants Accufix Research Institute, Incorporated (formerly TPLC, Incorporated) (hereinafter, “TPLC” or “ARI”), as well as Pacific Dunlop Limited (hereinafter, “Pacific Dunlop” or “PDL”) and Nucleus Limited (“Nucleus”) (hereinafter, collectively referred to as the “Australian Defendants” or “Defendants”), allegedly placed into the stream of commerce defective Accufix Atrial “J” Pacemaker Leads, Model Nos. 330-801 and 329-701 (hereinafter, referred to as the “J Leads” or the “Accufix Leads”) (see doc. 1, the “Complaint”). 2. Defendants’ Responses. Pacific Dunlop is a publicly-traded Australian company (see doc. 1021). At relevant times, Pacific Dunlop was the ultimate parent and beneficial owner of Accufix Research Institute, Inc. ftk/a/ TPLC, Inc., and TPLC Holdings, Inc. ftk/a/ Teletronics Pacing Systems, Inc. (hereinafter, collectively known as “Tele-tronics”). Teletronics manufactured, marketed, and distributed the Accufix Atrial “J” Leads, Model Nos. 329-701 and 330-801, that are the subject of this litigation. The “Nucleus” corporation is a wholly-owned subsidiary of Pacific Dun-lop that also held, at relevant times, a beneficial ownership interest in Teletron-ics. On behalf of all recipients of Accufix Leads (and their spouses), the Plaintiffs’ Steering Committee (hereinafter, the “PSC”, “Plaintiffs,” or “Plaintiffs’ Counsel”) alleged in the Complaint that Tele-tronics was liable for its manufacture and distribution of the Accufix Leads, and requested compensatory and other damages. With respect to Pacific Dunlop and Nucleus, the PSC alleged that these entities were the principals and/or alter egos of Teletronics and were liable for any injury or damage caused by Teletronics. All Defendants answered the Complaint and denied any wrongdoing or liability for the alleged damages to Plaintiffs. 3.The February 15th Hearing. On February 15, 2001, the Court held a Fairness Hearing on the Plaintiffs’ Steering Committee’s Motion To Approve The Proposed Class Action Settlement and Mandatory Class Certification (hereinafter, the “February 15th Hearing”) (see docs. 1018 & 1035). At the February 15th Hearing, the Court also heard oral arguments from members of the PSC in support of class certification and settlement approval as well as arguments made in support of the proposed settlement by attorneys representing Defendants TPLC, PDL, and Nucleus. Additionally, the Court heard arguments presented by Ralph Nader’s public advocacy group, Public Citizen, as amicus curiae (see 1006), which opposes certain aspects of the. Proposed Settlement Agreement (hereinafter, referred to as the “Second Settlement” or the “Agreement”). The Court granted Public Citizens amicus curiae status even though it did not seek leave to intervene or formally object, but instead filed a Motion for Leave to Participate as Amicus Curiae (docs. 1004 & 1005). Apparently this is the case, because its only client, Harold Reed, has withdrawn his Objections and he has decided to opt-out of this Settlement. The Court will detail the arguments of Public Citizens in a later section of this Order. 4.Dr. Granata’s Report. The PSC also submitted into evidence the Report of Atillio V. Granata, M.D., M.B.A. (hereinafter, the “Report”), which Report concludes that the amount of monies allocated to the Patient Benefit Fund and the Reserve Fund (hereinafter, collectively referred to as the “Fund”) is ample enough to cover the 2001 Plan of Allocation drafted by Class Counsel (hereinafter, referred to as the Second Plan of Allocation) (see doc. 1015). In connection with the Settlement of 1998 (hereinafter, the “First Settlement”), the PSC consulted with Alan L. Hillman, M.D., M.B.A., and an Associate Professor of Medicine and Associate Professor of Health and Management at the School of Medicine and the Wharton School of the University of Pennsylvania. Professor Hillman was consulted in order to determine whether sufficient funds existed to pay all claims according to the 1998 Plan of Allocation (hereinafter, referred to as the “Second Plan of Allocation”). Dr. Hillman had concluded that the Settlement Master would be able to distribute the settlement proceeds according to the First Plan of Allocation. Dr. Hillman’s 1998 Report was filed with this Court at that time. In our Order approving the First Settlement, the Court noted that we found Dr. Hillman’s analysis credible and persuasive (doc. 712). See In re Telectronics Pacing Sys., Inc., 186 F.R.D. 459, 470 (S.D.Ohio 1999). 5. The Members of the Class. As of the February 15th Hearing, the class totaled over 25,000 members, approximately 18,000 members are alive and 12,-000 are deceased, with the average age of the class members estimated by the Settlement Master to be approximately 77.5 years of age. Only two of the class members were present at the Hearing, and although they were given an opportunity to be heard on the record, the two class members who were present at the Hearing chose not to speak on the record at that time. There were no other formal Objectors, opt-out individuals, or class members at the Hearing. 6. The Objectors. As of the date of the February 15th Hearing, the Court is aware of no Objectors to this Settlement, except for those of class member Viola Watts, who agreed with the concerns of non-party and non-intervener, Public Citizen, which was given a full opportunity to be heard by the Court during the Hearing in regards to the issue of the approval of the Settlement Agreement. 7. The Court’s Holding. The PSC, Plaintiffs’ Counsel, Defendants’ Counsel and Public Citizens diligently briefed the issue of approval of the proposed Second Settlement Agreement in regards to this class action, providing the Court with a significant amount of briefing, memoranda of law citations, submissions, testimonials, and other evidence. Having reviewed and considered all of the briefs, points of authority, and supporting documents filed with the Court, as well as considering the oral arguments, testimony, documentary evidence, declarations, and objections made on the record at the February 15th Hearing, the Court is now prepared to rule on the PSC’s Motion To Approve The Proposed Class Action Settlement and Mandatory Class Certification. This Opinion and Order sets forth the Court’s ruling on these matters. After reviewing the entire Second Settlement, we conclude that the Agreement as a whole is fair, adequate, and reasonable in this case. Therefore, we GRANT Plaintiffs’ Steering Committee’s and Defendants’ Motions To Approve The Proposed Class Action Settlement (docs. 1016, 1018 & 1021). B. Factual History Defendant Teletronics manufactured the Aceufix Atrial “J” Lead (see doc. 1018). The Lead is part of a pacemaker that physicians routinely surgically implant to restore a normal heartbeat. Teletronics distributed Model No. 330-801 and 329-701 in the United States. The J-Lead is a fish hook shaped electrode that is implanted in the atrium of the heart. The Lead contains two coiled electrical wires. The Lead also has a three and one-half inch long flat wire. The flat wire is known as the “stiffner wire,” or “retention wire,” or “J-wire.” This wire maintains the shape of the Lead during and after implantation. The wire is encased directly underneath the polyurethane insulation. As the heart beats, the retention wire bends back and forth. The flexing wire causes the wire to experience stress. The stress, in some circumstances, causes the flat wire to break. This broken wire can protrude through the polyurethane and cause serious injury to the heart or blood vessels. Surgeons implanted approximately 40,-500 Teletronics’ “J” Leads worldwide between 1987 and October of 1994. The PSC asserts that there were in excess of 25,000 Aceufix Atrial “J” Leads sold to patients in the United States between 1987 and 1994 (doc. 1018). Of those implanted, the PSC contends that, as of the 1998 First Settlement, there were approximately 14,000 patients who are alive with a Lead intact. A significant number of those 14,000 patients have died in the 2 years that has passed between the First Settlement and the Second Settlement. Model Nos. 330-801 and 329-701 share identical design and engineering characteristics. Each member has a lead with the same design failure: a “J” retention wire that can fracture from metal fatigue. In each Lead, a “J” stiffener wire is located outside of the coiled conductor wires. Between December 1988 and October 1994, Defendant Teletronics learned that seven J-Lead retention wires fractured. In four of the seven cases, the retention wire protruded through the polyurethane insulation and through the patient’s right atrial appendage into the aorta. These four individuals experienced hemorrhage and cardiac tamponade. Two of the patients died from cardiac tamponade. The two remaining patients underwent invasive medical procedures to aspirate the blood from the sac surrounding the heart. They also underwent surgery to repair the lacerations that caused the cardiac tamponade. On October 26, 1994, Teletronics notified the FDA’s Denver District Office that it was recalling (hereinafter, the “Recall”) all of the non-implanted J-Leads, Models 329-701 and 330-801. Prior to FDA notification, Teletronics notified its field representatives, regional sales directors, and business unit managers of the Recall. Hospital administrators officially learned of the Recall on October 21, 1994. Pursuant to FDA requirements, Teletronics sent letters to physicians informing them of the Recall and providing them with information regarding reports of fracture and the results of their Multi-Center Study. These letters have been referred to as the “Dear Doctor Letters.” Currently, the medical community considers fluoroscopy the most effective method of detecting a fractured retention wire, and in most class members removal of the Lead is not considered the preferred method of treatment. Typically, a Lead recipient can undergo fluoroscopy when he or she attends a regularly scheduled pacemaker examination. C. Consolidation On February 13, 1995, Plaintiff Eugene Ownes filed a class action lawsuit in the United States District Court for the Southern District of Ohio, alleging injury due to a defective “J” Lead pacemaker that was manufactured by TPLC. Subsequently, on March 10, 1995, Plaintiffs moved to certify their action as a class action. The Multi-District Litigation Panel (hereinafter, the “MDL”) then took jurisdiction of this litigation, consolidating all cases for pretrial purposes and transferring them to this Court. On July 14, 1995, the Court issued its First Case Management Order, consolidating for pretrial purposes all eases that were part of MDL-1057, appointing a Plaintiffs’ Steering Committee to coordinate discovery and other pretrial proceedings, designating Attorney Stanley M. Chesley, of the law firm Waite Schneider, Bayless & Chesley Co., to serve as Lead Counsel of the PSC, appointing Liaison Counsel, Richard S. Wayne, of the firm Strauss & Troy, to serve as Plaintiffs’ Liaison Counsel, and setting a briefing schedule on the motion for class certification. This Court then issued a Second Case Management Order on August 14, 1995, establishing a Joint Plaihtiffs-Defendants Federal-State Document Depository located in the United States Potter Stewart Courthouse in Cincinnati, Ohio. By August 19, 1997, a total of 435 cases had been transferred to the Southern District of Ohio by the MDL Panel, of which 409 remained active in the transferee district. D. Preliminary Certification On July 20, 1995, Plaintiffs filed an Amended and Consolidated Master Class Action Complaint, alleging causes of actions against TPLC, PDL and Nucleus for: (1) strict liability; (2) negligence; (3) failure to warn; (4) breach of implied warranty; (5) breach of express warranty; (6) fear of future product failure; (7) intentional infliction of emotional distress; (8) fraud; (9) misrepresentation; (10) medical monitoring; and (11) loss of consortium. Thereafter, on November 17, 1995, the Court certified the class as including: “all persons worldwide who have had the Aecu-fix Atrial ‘J’ Pacemaker Leads, including the retention wire, Model 330-801, Model 329-701, and Model 088-812, placed in their bodies” (doc. 89). The Court then ordered that the class be certified on the common issues of negligence, strict liability, fraud, misrepresentation, and breach of warranty. Also, the Court ordered that a medical monitoring class be established. The Court, however, denied class certification for issues regarding causation and damages (Id.). Also in the Fall of 1996, the PSC learned of the sale of substantially all of the assets of Teletronics to Pacesetter, Inc. (doc. 1018). Immediately upon learning of the impending transaction, the PSC sought a Temporary Restraining Order and Preliminary Injunction to preserve the assets of Teletronics and maintain them in the United States. As a result of the Plaintiffs’ efforts, the PSC and Teletronics entered into an agreement that required ARI to retain the assets from this transaction in North America. Additionally, Teletronics agreed to provide the Court and the PSC with regular financial statements regarding the finances of Teletronics. Defendants then moved for this Court to reconsider our Order certifying the class, or, in the alternative, for an interlocutory appeal pursuant to Title 28 U.S.C. § 1292(b). On February 23, 1996, after reviewing Defendants’ motion for reconsideration, the Court granted in part and denied in part the motion and denied Defendants’ request for an interlocutory appeal (doc. 137). Consequently, the Court decertified the international class and reaffirmed our decision certifying a class that included United States class members (doc. 139). Although the Court did not decertify the United States class at that time, the Court later decertified the class on July 16, 1996, in light of the Sixth Circuit’s decision In re American Med. Sys., Inc., 75 F.3d 1069 (6th Cir.1996) and other progeny eases (doc. 189). E. The Second Class Certification On September 29, 1996, Plaintiffs renewed their motion for class certification. The Court granted the motion on Api'il 2, 1997, recertifying a nationwide class of “J” Lead implantees with sub-classes for the claims of negligence, strict liability, and medical monitoring (doc. 370). Defendants appealed the decision and filed a petition for a writ of mandamus with the Sixth Circuit Court of Appeals to vacate our recertification decision. The Sixth Circuit denied Defendants’ petition for a writ of mandamus and dismissed the interlocutory appeal for lack of jurisdiction. Although Defendants sought a rehearing of the denial of the petition for a writ of mandamus, the Sixth Circuit rejected Defendants’ request. This Court also. considered the Australian Defendants’ motion to dismiss for lack of personal jurisdiction. However, we denied their motion on February 3, 1997 (doc. 333). On December 1, 1997, the Court also denied Defendants’ motion for reconsideration of the Court’s certification of subclasses one and two, which relate to medical monitoring (doc. 468). Subsequently, on December 3, 1997, the Court approved the Joint Plan for Notice of Pendency of Class Action (doc. 472). F. The Summary Jury Trial This Court held a summary jury trial in this case, beginning on February 2, 1998, and ending on February 6, 1998. Among the summary jury’s findings were the following decisions regarding the liability of the Defendants. See In re Telectronics Pacing Sys., Inc., 186 F.R.D. 459, 464-65 (S.D.Ohio 1999) (discussion of summary jury trial). First, TPLC was negligent. Second, TPLC was negligent per se for failing to comply with the pertinent federal regulations in their filings with the FDA. Third, with respect to the strict liability subclasses: Sub-Class 5 — The “J” lead sold by the Telectronics Defendants failed to perform as safely as an ordinary consumer would expect when they left the possession of the Telectronics Defendants, and this was the proximate cause of injury to the Plaintiffs, and that the activities of the Telectronics Defendants had the capacity to harm the class members as a whole. Sub-Class 7A — TPLC knew of the risks of fracture. Although TPLC did not fail to provide a warning that a reasonable manufacturer would have provided concerning the risk, the company failed to provide post-market warning that a reasonable manufacturer would have provided concerning the risk; and TPLC’s activities had the capacity to cause harm to the class members as a whole. Sub-Class 7B — The “J” Leads were unsafe to the extent that beyond that which would be contemplated by an ordinary consumer; The seriousness of the injury or the unsafe nature of the design of the “J” Leads was a proximate cause of the Plaintiffs’ injuries. Furthermore, even though the warnings at the time of the manufacture regarding the risks associated with the “J” Leads were not inadequate, after the product was manufactured, TPLC did learn or should have learned about the dangers connected with the “J” Leads; however, TPLC did not issue warnings concerning the dangers in a manner that a reasonable product manufacturer would act in the same or similar circumstances, and the activities of TPLC had the capacity to cause harm to the class members as a whole. Sub-Class 7A — At the time of manufacture of the “J” Leads, there was an alternative design which was capable of preventing the type of injury the Plaintiffs allege; The seriousness of the injuries alleged outweighed the burden of the Telectronics Defendants to use the alternative design; The injuries alleged by Plaintiff resulted from a reasonably anticipated use of the “J” Leads. Additionally, after the product was manufactured, the Telectronics Defendants did or should have learned of the danger of injury to recipients of the “J” Leads; nevertheless TPLC failed to use reasonable care to provide an adequate warning of such characteristic and its dangers to the “J” Leads. Finally, the Telectronics Defendants’ activities had the capacity to cause harm to the class members. Sub-Class 8 — The “J” Leads failed to perform in a safe way that an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; The risk of danger inherent in the design outweighs the benefits of the design; The failure of the “J” Leads to perform safely or a risk of danger existed at the time the product left the control of the Telectronics Defendants, and that failure or risk was a cause of the Plaintiffs’ injuries; The use of the “J” Leads involved a substantial danger that was not readily recognized by the Plaintiffs and that the Telectronics Defendants knew or should have known of that danger; Telectronics Defendants failed to give adequate warnings of such danger and that the failure to warn was the cause of injury to the Plaintiffs; and, the activities of the Telectronics Defendants had the capacity to cause harm to the class as a whole. The “J” Leads were defective due to a defect in design, and the manufacturer knew, or in light of reasonably available scientific and technical knowledge then existing could have known, of the design characteristic or its danger that caused the Plaintiffs’ injuries or of the alternative design identified by the Plaintiffs. In re Telectronics, 186 F.R.D. at 464-65. Thus, assuming that the jury found TPLC liable on any of Plaintiffs’ theories of liability, the summary jury advised that Plaintiffs would recover damages in the amount of $265,000,000.00 ($265 million) for the costs of medical monitoring and the costs and testing procedures. The summary jury did not award damages for individuals with working Leads. The jury recommended substantial damages for individuals that sustained significant medical complications from a Lead fracture or ex-plantation. The jury did not recommend an award of punitive damages. The jury also found in favor of the Australian Defendants on the theories of agency and alter-ego. Specifically, PDL and Nucleus were found to be not liable to Plaintiffs under any agency theory or as being the parent company of TPLC. The Class representatives were awarded a total recovery of $7,750,000.00 ($7.75 million). The summary jury found that Plaintiffs were not entitled to punitive damages under any of the three standards of proof, i.e., by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. G. The First Settlement Following the summary jury trial, and after allowing the Parties an opportunity to review the strengths and weaknesses of their cases in light of the summary jury’s findings, settlement discussions were begun by the Parties, and the Court later scheduled two settlement conferences in this matter; March 19, 1998 and March 26, 1998. Subsequently, on April 2, 1998, the Parties informed the Court that they had agreed to a settlement in principle. On July 22, 1998, the Parties presented a Joint Motion for Order Provisionally Certifying a Mandatory Class Action pursuant to Fed.R.Civ.P. 23(b)(1)(B), Approving Settlement, Forms of Notice to the Class Members, Scheduling a Final Fairness Hearing, and Preliminarily Enjoining All Accufix Litigation. Following a hearing on the matter, the Court indicated tentative approval of the proposed settlement by approving the form and manner of dissemination of the notice to prospective class members, and temporarily enjoining all Aecufix Atrial “J” Lead litigation (hereinafter, referred to as the “First Settlement”). The Court then scheduled the First Fairness Hearing for November 19, 1998, and provided for Objectors and their Counsel to be heard at the Hearing. On August 3, 1998, Class Counsel and the Defendants jointly filed a motion seeking an Order appointing a Settlement Master to fulfill the settlement goals. On August 11, 1998, the Court appointed Attorney Virginia C. Whitman to serve as Settlement Master in this matter (doc. 525) Notice was provided to the Class regarding the class action and proposed settlement, and the date and time for the Fairness Hearing via advertisements (hereinafter, “Notice Materials”) in USA Today, a nationally distributed newspaper, on September 25, 1998 and October 2, 1998. Also, Notice Materials were sent by first class mail to potential class members on September 14, 1998 and October 10, 1998. Any inquiries regarding the Notice of the settlement and hearing dates were taken and responded to by Star Bank, N.A., of Cincinnati, Ohio, Virginia Whitman, Esq. and the PSC. As of the date of the November 19th Hearing, fifty-three (53) out of the total class of 17,366 individuals filed Objections and Letters in opposition to the proposed settlement. On March 5, 1999, this Court approved the First Settlement Agreement (docs.710-712). See In re Telectronics Pacing Sys., Inc., 186 F.R.D. 459 (S.D.Ohio 1999). H. The First Plan of Allocation; A Comparison. The First Plan of Allocation in the First Settlement of 1998 is nearly identical to the Second Plan of Allocation, which is the subject of the PSC’s and Plaintiffs’ Counsel Joint Motion to Approve the Second Settlement in the case at bar. The Second Plan of Allocation takes into account information made available to the PSC regarding the size of the class, the age of the class, the explant history of the class, the rate of medical complications associated with fracture and explant, and the advice of medical practitioners. Under the Second Settlement Agreement, the Settlement Master, Virginia Whitman, Esq., has the authority to make adjustments to the compensation levels and the documentation required to establish a claim if she determines that the adjustments are necessary. The First Settlement Agreement was summarized as follows: There shall be four (4) funds established and funded by the Telectronics Defendants: (1) Patient Benefit Fund, (2) Operating Fund, (3) Litigation Fund, and (4) Reserve Fund. First, a Patient Benefit Fund was to be established in which TPLC deposited $47,275,297.00 ($47.2 million) and PDL deposited $10,000,000.00 ($10.0 million) into the Fund. The amount in the Patient Benefit Fund will be used to pay “J” Lead related claims. Five Categories of Qualified Settlement Class Members was established for the purposes of the Patient Benefit Fund with each member scheduled to receive different compensation as a subgroup. The 1998 categories and plan of allocation of payments from the Patient Benefit Fund was set as follows: (1) Category 1 shall consist of Qualified Settlement Class Members with “J” Leads still implanted in their body at the time of final approval. Category 1 Qualified Settlement Class Members filing a timely claim shall receive $500.00, and be entitled to receive reimbursement out of the Patient Benefit Fund for unreimbursed medical expenses relating to fluoroscopies. To receive payment, a Category 1 Qualified Settlement Class Member must file a proof of claim with the Settlement Master within sixty (60) days after Final Approval. The spouses of each Category 1 Qualified Settlement Class Member who was married as of the date of the Final Approval shall receive $100.00. Any Category 1 Qualified Settlement Class Member who waives his or her right to receive the $500.00 because of his or her failure to file a timely proof of claim will nonetheless be entitled to participate in the medical monitoring program. Claims of Category 1 Qualified Settlement Class Members can only be submitted by or on behalf of persons living as of July 22,1998. Finally, any Category 1 Qualified Settlement Class Member who fails to file a Proof of Claim to receive a distribution from the Patient Benefit Fund in the time provided for shall have waived his or her right to receive money as a member of Category 1, and the funds that would have been distributed to such class members will be used for Categories 2, 3, 4, or 5 as determined by the Settlement Master. (2) Category 2 Qualified Settlement Class Members shall receive a payment of $4,500.00 or $10,000.00. Category 2 Qualified Settlement Class Members who have undergone an extraction procedure without minor complications or, an extraction that resulted in a Minor Complication or, who have experienced a fracture and whose Lead (or a portion of their Lead) is still implanted in their body but has not resulted in any complications, shall receive a payment of $4,500. Category 2 Qualified Class Members who experienced a fracture and whose Lead (or a portion of their Lead) is still implanted in their body and has caused a Minor Complication shall receive a payment of $10,000.00. A Proof of Claim for Category 2 Qualified Settlement Class Members must be filed by March 1, 1999 or within sixty (60) days of Final approval, or within ninety (90) days of discharge from a hospital or a diagnosis of fracture with a recommendation against extraction, whichever is later. Category 2 Qualified Settlement Class Members must also provide verification that the reason for the extraction was directly related to their Lead, or that their Lead is fractured, or that the implanted but fractured Lead caused a Minor Complication. Minor Complications include but are not limited to, extended procedure time, some discomfort to the patient, or other minor complication as may be determined by the [Settlement] Master. The spouse of each Category 2 Qualified Settlement Class Member who was married as of the date of the Final Approval and remained married at the time the claim arose shall receive a payment of $250.00. (3) Category 3 Qualified Settlement Class Members who have experienced a Major Complication shall receive payment of $20,000.00 or $40,000.00, depending upon satisfaction of the following criteria: in order to establish a Major Complication and be entitled to receive $40,000.00, a Category 3 Qualified Settlement Class Member must file a Proof of Claim with the Master by March 1, 1999, or within sixty (60) days of Final Approval, or within ninety (90) days of discharge from the hospital, whichever is later, provided that it is established that he or she has undergone an extraction procedure which resulted in either: (a) a thoracotomy; (b) cardiac arrest; (c) four (4) of sixteen (16) complications that may result; or (d) establishes that the Lead is still implanted in his or her body, but is fractured and the fracture has resulted in four of sixteen specific complications. To be entitled to payment, a Category 3 Qualified Settlement Class Member must be able to verify the complications directly related to his or her Lead with medical records and a notarized statement from the Qualified Settlement Class Member’s treating physician. In order to establish a Major Complication, and be entitled to receive $20,000.00, a Category 3 Qualified Class Settlement Members must file a claim with the [Settlement] Master by March 1, 1999 or within sixty (60) days of Final Approval, or within ninety (90) days of discharge from the hospital, whichever is later, provided that it is established that he or she experienced three (3) of the sixteen (16) complications specifically listed and that the complications are directly related to his or her Lead, as documented by their medical records and a notarized statement from the Qualified Settlement Class Member’s treating physician. Finally, each spouse of a Category 3 Qualified Settlement Class Member who was married as of the date of Final Approval and remained married at the time the claim arose shall receive payment of $500.00. (4) Category 4 Qualified Settlement Class Members who are Permanently and Totally Disabled, and whose Permanent and Total Disability is directly related to their Lead, shall receive $100,000.00, plus lost income calculated as the sum of (I) a percentage of the “adjusted current annual income” equal to the number of days from the date of Permanent and Total Disability to the end of the year divided by 365, and (ii) the present value of future “adjusted current annual income” beginning the year following the Permanent and Total Disability, ending the year of the Qualified Settlement Class Member’s 62nd birthday and discounted to the year of the Permanent and Total Disability as a net interest rate of 1.5% (which percentage is calculated as the difference between a 5.5% growth and a 7.0% discount rate). Under Category 4, a Settlement Class Member does not qualify for compensation if he or she was unable to perform the usual duties or activities of Vocation or Self Care prior to the fracture of the Lead, explant of the Lead or attempted or incomplete explant of the Lead. Also, a spouse of a Category 4 Qualified Settlement Class Member who was married at the time of Final Approval and remained married at the time the claim arose shall receive a payment of $50,000.00. (5) Category 5 Qualified Settlement Class Members who died as a result of a Lead fracture or as a result of a procedure to extract the Lead shall receive compensation equal to the sum of (a) through (c) below; provided that in no event shall the total payment be less than $200,000.00 or more than $1,000,000.00. In order to establish the cause of death, a Qualified Settlement Class Member's estate must file a Proof of Claim with the Settlement Master by March 1, 1999, or within sixty (60) days of Final Approval, or within ninety (90) days of the death of a Qualified Settlement Class Member, whichever is later, together with either: (I) the certificate of death indicating the cause of death to be from fractured Lead, cardiac tamponade, complications from an attempted extraction procedure or any other cause related to the fractured Lead; or (II) a notarized statement from a coroner (or in the case of an extraction-related death, from the extracting surgeon) indicating the cause of death to be any of those enumerated in sub-paragraph (I), supra. Under Category 5, the estate of a Class Member shall be compensated as follows: (A) $200,000.00; (B) $200,000.00 multiplied by the number of minor children (under 18 years of age as of the decedent’s date of death), if any, that the Qualified Settlement Class Member had at the time of death, plus income, plus $150,000.00 for the spouses. (C) the Qualified Settlement Class Member’s lost income, calculated as the sum of (I) a percentage of the “adjusted current annual income” equal to the number of days from the date of death to the end of the year divided by 365, and (ii) the present value of future “adjusted current annual income” beginning the year following the death, ending the year of the Qualified Settlement Class Member’s 62nd birthday and discounted to the year of the death at a net interest rate of 1.5% (which percentage is calculated as the difference between a 5.5% growth and a 7.0% discount rate). (D) The spouse of any Category 5 Qualified Settlement Class Member, if they are married as of the date of death shall receive a payment of $150,000.00. We note that “[a] Qualified Settlement Class Member who already filed a claim in one category and later experienced an event that would enable him or her to file a second claim in another category may do so, subject to a reduction in the compensation previously paid out for his or her claim.” In regards to those persons in Categories 1 and 2 above, the First Settlement Agreement called for them to receive the full amount of compensation that they are entitled to after Final Approval of the Settlement. However, in regards to Categories 3 through 5 above, in order to protect the Patient Benefit Fund, the Parties agreed that Qualified Settlement Class Members will receive 50% of the compensation that they are entitled to after Final Approval of the Settlement and the remaining 50% of their award will be held back temporarily (hereinafter, referred to as the “Holdback Provision”). The reason for the Holdback Provision is to allow the Settlement Master, in a period of not more than five (5) years, to make an assessment of the status of the Settlement Class and estimate the number of existing future claims that may reduce the Patient Benefit Funds. Specifically, the First Settlement Agreement states, in pertinent part: The [Settlement] Master shall, no later than two (2) years from Final Approval, retain a consultant to assess the status of the Settlement Class, including the number of surviving Class Members implanted with the Lead, the reported J-wire related injuries, Lead extractions, complications from Lead extraction, total and permanent disabilities and deaths associated with the Lead, to estimate the number of existing and future claims which may reduce the Patient Benefit Fund. (See Second Submission of Amended Summary Plan of Allocation, doc. 654 at 9-10). Although the PSC may have used its best efforts to allocate the monies in the Patient Benefit Fund to the Qualified Settlement Class Members, the Settlement Master may determine that an adjustment is necessary in the allocation of monies. (See id. at 10). Moreover, the Settlement Master, in consultation with the PSC and with approval of the Court, may alter the Plan of Allocation contained in the First Settlement Agreement in order to increase or decrease the total payments to be received by the Qualified Settlement Class Members (Id.). In exercising her best judgment under each circumstance, the Settlement Master shall have the discretion to: (1) determine whether the documentation submitted by the Class Member is sufficient to establish that the Class Member is entitled to receive benefits under the First Settlement Agreement; (2) reallocate the remaining money in the Patient Benefit Fund after all payments are made to the Qualified Settlement Class Members in Categories 1-5 so that additional distributions are made to Categories 2-5, as long as approval is given by the Court; and (3) the process for requesting payment of medical bills and related costs for extractions and fluoroscopies are handled as emergency requests on an expedited basis. Second, an Operating Fund shall be created by TPLC depositing $10,000,000.00 ($10.0 million) initially, and, ten (10) days after the Final Approval of the Settlement Agreement, depositing the balance of the remaining cash held by TPLC after the establishment of the Patient Benefit Fund and Litigation Fund. The monies deposited in the Operating Fund will be used by TPLC to pay operating expenses, with the exception of those expenses paid from the Litigation Fund and the Reserve Fund (i.e. the amount necessary to comply with ongoing obligations with the FDA). Any unused portion of the monies in this fund will revert to the Patient Benefit Fund. Third, a Litigation Fund will be established, into which TPLC will deposit $6,765,528.00 ($6.7 million). The monies in the Litigation Fund will be used by TPLC to pay expenses for other disputes not related to the Models 701 and 801 “J” Leads, which are the subject of this litigation. Any unused portion of the monies in this fund will revert to the Patient Benefit Fund. Finally, a Reserve Fund will be established, into which TPLC will deposit $4,000,000.00 ($4.0 million). The monies in this fund will be used by the Defendants to pay litigation expenses associated with the 701 and 801 “J” Lead. Any unused portion of the monies in this fund will also revert to the Patient Benefit Fund. Additionally, in reaching the settlement, the PSC entered into an agreement with the Health Care Financing Administration (hereinafter, the “HCFA”), providing that in consideration of $5,000,000.00 ($5.0 million) being paid by TPLC on behalf of itself and all Medicare beneficiaries in the United States, the United States Government would release and forever discharge them from any and all past, present, and future claims by the United States for expenses relating to medical treatment made necessary by the Leads. In addition, the Department of Health and Human Services agreed to relinquish all rights to any portion of any judgment, settlement, claim, or collection related to medical expenses pursuant to the terms of the settlement. Thus, the PSC contends that the agreement with HCFA provides a significant benefit to the Class because it protects monies that will be available in the Patient Benefit Fund. I. The Sixth Circuit Court of Appeals’ First Settlement Reversal After this Court approved the First Settlement and determined that the Agreement was fair, adequate, reasonable, and in the best interest of the class members as a whole, several members of the class, who previously had sought to intervene, appealed the Court’s Order approving the First Settlement, as well as the Order denying those same Objectors the right to intervene. On February 3, 2000, the Sixth Circuit Court of Appeals held oral arguments in this matter. On July 19, 2000, the Sixth Circuit Court of Appeals reversed this Court’s March 5,1999 Order approving the First Settlement and denying the Intervention as a Matter of Right to the Objectors in this case (doc. 903). See In re Telectronics Pacing Sys., Inc., 221 F.3d 870 (6th Cir.2000) The Court of Appeals in its Opinion held that this Court abused its discretion when it certified a mandatory, non-opt-out class and approved the First Settlement based on a “limited fund” theory, pursuant to Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure. The Court of Appeals emphasized that members of a class who bring actions for particularized tort claims for money damages should have an opportunity to opt-out of the class. In re Telectronics, 221 F.3d at 881. The appeals court did not reverse the Order of this Court certifying the case as a class action for trial purposes and they also did not reverse our findings that this Court had personal jurisdiction over the Australian companies. See In re Telectronics Pacing Sys., Inc., 172 F.R.D. 271 (S.D.Ohio 1997) (order certifying class for purposes of trial). The Sixth Circuit’s primary concern was that the First Settlement was not “a true limited fund” and “release[d] ... [Pacific Dunlop and Nucleus] from all liability and le[ft] class members with no recourse against them.” In re Telectronics Pacing Sys., Inc., 221 F.3d at 879. The Sixth Circuit summarized its general concerns with mandatory settlements and with special application to this case in the following way: From a due process point of view, the opt-out choice is of less concern when there is a definite fund or res from which plaintiffs will receive damages. When there is a true limited fund, the only question is how to divide up the pie. Where defendants have sufficient funds to compensate class members through individual litigation, however, as Pacific Dunlop and Nucleus apparently do, the choice to opt-out becomes much more meaningful and due process demands that class members be afforded that right where possible. If certain plaintiffs wish to opt-out and take their chances at suing a foreign corporation, due process would seem to require that they be allowed to do so absent strong considerations to the contrary not present here. Id. at 881. The Sixth Circuit then remanded the case to this Court. J. The Second Settlement After the Sixth Circuit issued its Opinion, the PSC again commenced intense, hard fought, and sometimes “spirited,” arms-length negotiations with TPLC and the Australian Companies (doc. 1018). On more than one occasion, the negotiations appeared to reach an impasse. During this process, members of the PSC met with Counsel for the Objectors is an attempt to address their past objections to this Settlement. In addition, this Court helped facilitate this process by ordering that the previous Objectors/Interveners would be involved in every aspect of the post-appeals litigation, including the submission of briefs, attending all conferences and hearings, and receiving copies of any documents issued by the Court or submitted by the principal Parties to this Litigation. The Court initially observed that the Parties may be unable to reach an agreement and entered a Third Case Management Order that set an April 2, 20Q1 trial on the merits date. In the meantime, Counsel for the Parties continued to negotiate a resolution of this case consistent with the decision of the Court of Appeals. After reaching a preliminary agreement with Defendants, the PSC discussed the terms of the Agreement with Counsel for the previous Objectors who intervened in the appeals. After extensive discussions with Counsel for the Objectors, they indicated that they believed the proposed Settlement Agreement resolved the concerns that they had with the First Settlement. The Second Settlement Agreement contains features that resemble the First Settlement in many ways (doc. 1018). We find that the terms of the Second Settlement provide the best means to fairly allocate the settlement proceeds to members of the class. The Second Settlement proceeds are divided into two Funds: (1) A Patient Benefit Fund in the amount of $58,200,00 which the Settlement Master will use to satisfy all past, present and future claims by any person for product warranty, medical care, injuries, or damages arising from an Accufix Atrial “J” Lead. ARI contributed $52,-2000,000 to the Fund and Pacific Dun-lop/Nucleus contributed $6 million; (2) A Reserve Fund in the amount of 4.2 million which will be used by the Defendants to pay expenses, judgments and settlement of “J” Lead related litigation. Any money unused in the Reserve Fund reverts to the Patient Benefit Fund. The unused portion of the funds being retained by ARI will also revert to the Patient Benefit Fund. (doc. 1018). Additionally, ARI, as part of the First and Second Settlements, reached an agreement with the HCFA, where HCFA, in exchange for a payment of $5 million, relinquished all subrogated interest that the United States Government may have had in the settlement proceeds that individual class members received for past or future payments for explants or fluoroscopies. K. The Second Plan of Allocation The Second Settlement provides additional compensation to members of the class. Under the proposed Second Settlement, Category II and III class members will receive more money than they would have received under the First Settlement. In addition, under the new settlement, the Holdback of funds to Categories 3-5 will only be 25% and will be paid out within one year from the period of Final Approval. See Settlement Agreement ¶ 6.15(h). The amount of compensation is determined by the Category in which the class member falls. Category I class members, those settlement class members who have a working Lead, will receive $500.00. The spouse of a Category I class member will receive $100.00. Additionally, Category I class members may participate in the Medical Monitoring Program. The program will provide on-going fluoroscopic screening opportunities. The Court notes that the amount of reimbursement for Category I class members and spouses have not changed significantly since the First Settlement. Category II class members are individuals who have undergone a lead extraction. A Category 11(a) class member that has not experienced a complication will receive $6,500.00. A Category 11(b) class member who experienced a minor complication will receive $11,500.00. Additionally, the spouse of each Category II qualified member will receive $500.00. The Court notes that the amount of reimbursement paid to Category 11(a) and (b) class members and their spouses have increased from a previous claim of $4,500.00, $10,000.00, and $250.00, respectively. Category III are class members who has experienced major complications. A Category 111(a) class member will receive $25,000.00 and a Category 111(b) class member who experiences more severe complications will receive $45,000.00 depending on the extent of the complications experienced. Each spouse of a Category III class member will receive $1,000.00. The Court notes that the amount of reimbursement paid to Category 111(a) and (b) class members and their spouses have increased from a previous claim of $20,000.00, $40,000.00, and $500.00, respectively. Category IV class members are individuals who became permanently and totally disabled from a fracture or explantation. Each Category IV class member will receive a minimum payment of $100,000.00. Each spouse of a Category IV class member will receive a payment of $50,000.00. The Court notes that the amount of reimbursement paid to Category IV class members and their spouses have not changed significantly from the First Settlement. Category V class members are individuals who died from an extraction or a fracture of their Lead. The Estate of a Category V class member will receive between $200,000 and $1 million. Additionally, the spouse of any Category V class member will receive $150,000.00. The Court notes that the amount of reimbursement paid to Category V class members and their spouses have not changed significantly from the First Settlement. Subsequent to Dr. Hillman’s Report, the Parties obtained additional information regarding claims and the experience of class members. Because of health problems, Dr. Hillman has been unable to work with the PSC to evaluate the Second Settlement. Dr. Hillman referred the PSC to one of his colleagues, Atillio Granata, M.D., M.B.A., and Associate Clinical Professor of Medicine at Yale School of Medicine, in order to assist the PSC in evaluating the adequacy of the Second Plan of Allocation (doc. 1015). Dr. Granata, using the same modeling techniques as Dr. Hillman, updated Dr. Hillman’s analysis and concluded that the Second Settlement proceeds are sufficient to satisfy the Second Plan of Allocation. Dr. Granata’s Report has been filed with this Court and was discussed by the Parties during the February 15, 2001 Hearing (doc. 1015). Under Paragraph 6.1.5© of the Second Settlement Agreement, the Settlement Master can propose necessary adjustments to the Second Plan of Allocation. The Second Settlement Agreement further provides that a class member may submit future claims if his or her Lead causes additional injury. The Settlement Master, however, will deduct previous payments to the class member. L. The Preliminary Approval of the Second Settlement Agreement. In this case, the Court held a hearing on November 20, 2000. After reviewing the Joint Motion of the Parties and the supporting materials (doc. 963), this Court entered an Order preliminarily approving this Second Settlement (doc. 964). M. Notice to the Class At the same time, the Court approved the form and substance of the Notice Materials proposed by the Parties. The Court found that “[djissemination of the class notice in substantially the form set forth in the Joint Motion for Class Certification and attachments constitutes the best notice practicable under the circumstances, and satisfies the requirements of due process and Federal Rule of Civil Procedure 23” (docs. 963 & 964). We find that the Notice Materials comport with the requirements of Rule 23 and due process (doc. 1021). On or about December 12, 2000, Notice was provided to: all class members at the address on the records maintained by the Settlement Master that identified the registered recipients of the Accufíx Leads; all class members and/or their counsel who have filed actions against Teletronics, or Teletronics and any other entity or person asserting claims relating to the Accufix Leads; all class members and/or their counsel who have contacted the PSC; all class members who have contacted the Settlement Master regarding the First Settlement in this matter; and all class members who have contacted the Medic Alert Foundation International. Moreover, the PSC caused a press release to be circulated, through the P.R. Newswire, that advised the general public of the certification of a class action and preliminarily approved settlement, and advised class members how they could obtain a copy of the notice. Finally, a summary notice was published on two occasions in the national edition of USA Today. II. DISCUSSION A. Historical Analysis of Federal Rule 23 Historically, the class action principle finds its roots in the Bill of Peace, created by the English Court of Chancery. See 7A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 1751 at 7 (1986). Bills of Peace were primarily used as a rule of convenience. In disputes involving common questions of law and fact and multiple parties whereby joinder was impracticable, the English court would facilitate the adjudication by allowing a minute number of individuals to serve as representatives of the group’s common interests. Id. at 8. The resulting judgment was binding on all members of the group regardless of whether they were present in the action or not. Id. (citing Adair v. New River Co., Ct. Ch. 1805, 11 Ves. Jr. 429, 32 Eng. Rep. 1153); see also 1 H. Newberg and Alba Conte, Newberg on Class Actions, §§ 1.09 (3d ed.1992); 1 J. Pomeroy, Equity Jurisprudence, §§ 252, 253 (1918); Chafee, Bills of Peace with Multiple Parties, 45 Harv. L.Rev. 1297 (1932). In 1842, the Bill of Peace found its way into the legal system of the United States through the promulgation of Equity Rule 48. Rule 48 recognized representative class action-type suits where the parties on either side of the dispute were too numerous to be conveniently brought before the court. However, contrary to the Bill of Peace, Rule 48 did not bind absent parties to the resulting judgments. Essentially, Rule 48 provided the courts with a convenient device to maintain class action-type suits, while at the same time insure that the interests of all of the members of the class — both present and absent — were properly protected. Smith v. Swormstedt, 57 U.S. (16 How.) 288, 302-303, 14 L.Ed. 942 (1853). Federal courts applied Equity Rule 48 from 1842 to 1912. In 1912, Federal Equity Rule 38 ushered in a revision to Rule 48 of the Federal Equity Rules. Like Equity Rule 48, Rule 38 allowed representative class action-type suits. However, in contrast to Equity Rule 48, Rule 38 established that absent parties could be bound by subsequent judgments pursuant to this rule. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 363-64, 41 S.Ct. 338, 65 L.Ed. 673 (1921); 7A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 1751 at 13. B.Rule 23 of the Federal Rules of Civil Procedure; In General. In 1938, Rule 23 of the Federal Rules of Civil Procedure emerged, dividing class actions into three categories: (1) spurious; (2) true; and (3) hybrid actions. In 1966, an amendment to Rule 23 repudiated the categorical scheme and set forth clear prerequisites to Rule 23(a) and three categories that the class action must fall within under 23(b). 7A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 1762 at 44. Of the 3 categories under 23(b), only 23(b)(3) allows the litigants the option to opt out of pursuing their claims in a unified proceeding merely because their claims share legal and factual allegations. See Fed.R.Civ.P. 23(b)(3). Thus, we note that, in examining the evolution of the class action procedural device from the English Chancery courts’ application of the Bill of Peace through the Advisory Committee’s development of Rule 23(b) in 1966, we find that historically only 23(b)(3) provided a litigant the right to opt-out, not 23(b)(1) or (b)(2). With that historical information in mind, we note that Rule 23(a) provides, in pertinent part: One or more members of a class may sue ... only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class. Id. C. Rule 23(b)(1)(B); “The Limited Fund Theory.” Rule 23(b)(1)(B) provides for a mandatory class as follows: An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of ... (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. Except for Rule 23(b)(1)(B) limited fund, mandatory class actions, Rule 23(c)(2) provides, in the case of class action suits, for damages notice to the class and opt-outs as follows: In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member from the class if the member so requests by a specific date.... Id. D. The Appellate Reversal of the First Settlement. In the case of In re Telectronics Pacing Sys., Inc., the Sixth Circuit heard the appeal of several Objectors to the First Settlement from this District Court’s Order certifying, on a “limited fund” rationale, a non-opt-out class and approving a class action settlement of $57 million, pursuant to Federal Rule of Civil Procedure 23(b)(1)(B). Id., 221 F.3d 870, 873 (6th Cir.2000). The District Court had relied on the Fifth Circuit Court of Appeals’ decision that the United States Supreme Court later reversed in Ortiz. See Flanagan v. Ahearn (In re Asbestos Litig.), 134 F.3d 668 (5th Cir.1998), rev’d, Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). The members of the class who chose to object to the First Settlement raised essentially five issues on appeal: (1) whether the district court abused its discretion in certifying the class as a “limited fund” class action under Federal Rule of Civil Procedure 23(b)(1)(B) where solvent and potentially liable companies were released from liability; (2) whether the settlement and certification violates due process because it does not allow plaintiffs with claims for money damages to opt-out of the settlement; (3) whether the class representatives and class counsel adequately represented the interests of all class members; (4) whether the district court erred in awarding class counsel fees of 28% of the total settlement fund’ and (5) whether the district court abused its discretion in denying the motions to intervene by various class members/objectors. In re Telectronics Pacing Sys., Inc., 221 F.3d 870, 876 (6th Cir.2000). The Sixth Circuit ultimately concluded that the “Supreme Court’s opinion in Ortiz, reversing the Fifth Circuit in the case of Flanagan v. Ahearn (In re Asbestos Litig.), required that the mandatory Rule 23(b)(1)(B) class certified by the district court here must be decertified, and that the settlement approved by the district court must be disapproved.” Id. at 873. Specifically, the Court of Appeals reasoned that: [o]ne of the problems with compromising the rights of absent class members under Rule 23(b)(1)(B) through global mass tort settlements distributed on a mandatory basis arises from the perverse set of incentives it may provide defendants and class action lawyers— ‘the potential for gigantic fees.’ The defendants may be able to settle cases by providing, relatively speaking, a small amount of money for seriously injured class members while providing large attorney fees for lawyers for the class as an inducement to settlement. If the court deviates very far from the traditional or strict limited fund theory by allowing a limited fund to be created purely by settlement, the legal system runs the risk of eliminating adversary trials conducted to redress wrongs individually by actual plaintiffs through a process by which defendants pay off a small group of plaintiffs’ class action lawyers who actually represent other parties. Id. at 873-74. The Court of Appeals further explained that it could not approve a settlement that releases the parent Australian companies from all liability and leaves class members with no recourse against them. Id. at 879. It is important to note that the Sixth Circuit’s holding in this case did not affect the other findings of this Court in previous Orders, such as: (1) the class certifications based on different theories of liability; (2) the findings of personal jurisdiction against the Australian companies; and (3) the award of adequate attorney fees, expenses; class represent