Ortho-McNeil-Janssen Pharm. Inc.2 , 2014 Ark. 126 ( 2014 )

Cite as 2014 Ark. 126
SUPREME COURT OF ARKANSAS
No. CV-13-468
ORTHO-MCNEIL-JANSSEN Opinion Delivered March 20, 2014
PHARMACEUTICALS, INC., f/k/a
JANSSEN PHARMACEUTICA, INC., APPEAL FROM THE PULASKI
AND/OR JANSSEN, LP; and JOHNSON COUNTY CIRCUIT COURT
& JOHNSON [NO. CV-2007-15345]
APPELLANTS
HONORABLE TIMOTHY DAVIS
V. FOX, JUDGE
REVERSED AND REMANDED.
STATE OF ARKANSAS
APPELLEE
COURTNEY HUDSON GOODSON, Associate Justice
On January 31, 2013, the Pulaski County Circuit Court awarded $180,851,370 in
attorney’s fees and $298,799.86 in costs to the State as the prevailing party in Ortho-McNeil-
Janssen Pharmaceuticals, Inc. v. State, 2014 Ark. 124, ___ S.W.3d ___, Pulaski County Circuit
Court case number CV-2007-15345. For reversal, appellant Ortho-McNeil-Janssen
Pharmaceuticals, Inc., f/k/a Janssen Pharmaceutica, Inc., and/or Janssen, LP, and Johnson &
Johnson (collectively referred to as “Janssen”) argues that (1) the State’s request for attorney’s
fees was premature because the “federal share” of the underlying judgment has not been
determined; (2) the court improperly interpreted the Medicaid Fraud and False Claims Act
(MFFCA) and the Arkansas Deceptive Trade Practices Act (ADTPA) as requiring courts to
shift contingency-fee agreements to the losing party; (3) the award does not comport with
Arkansas law regarding attorney’s fees because the circuit court based the fee award entirely
Cite as 2014 Ark. 126
on the State’s contingency-fee agreement with Bailey Perrin Bailey (BPB); (4) the circuit
court improperly interpreted and applied the factors for determining an award of attorney’s
fees, as discussed in this court’s opinion in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800
S.W.2d 717 (1990); and (5) the attorney’s fee award violates the Excessive Fines and Due
Process Clauses of the United States and Arkansas Constitutions. This court’s jurisdiction is
proper as this is a companion case to the direct appeal in Ortho-McNeil-Janssen v. State, 2014
Ark. 124, ___ S.W.3d ___, handed down this same date, and because Janssen’s fee-shifting
argument presents an issue of first impression. Ark. Sup. Ct. R. 1-2(b)(1). Since the judgment
in favor of the State is reversed and dismissed in part on the MFFCA claim and reversed and
remanded on the ADTPA claim, the award of attorney’s fees is reversed and
remanded. Brookside Vill. Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990)
(reversing an award of attorney’s fees where the underlying judgment in favor of the
prevailing party was reversed).
Reversed and remanded.
O’Melveny &Myers, LLP, by: Charles C. Lifland (California), Stephen D. Brody and
Walter Dellinger (Washington DC);
Drinker Biddle & Reath LLP, by: Thomas F. Campion (New Jersey), Edward M. Posner,
Gregg W. Mackuse (Pennsylvania); and
Friday, Eldredge & Clark, LLP, by: James M. Simpson, Laura H. Smith, Robert S. Shafer,
and Martin A. Kasten, for appellants.
Dustin McDaniel, Att’y Gen., by: Bradford J. Phelps, Chief Deputy Att’y Gen.;
Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, by: David C. Frederick, Derek T.
Ho, and Caitlin S. Hall; and
Bailey Perrin Bailey PLLC, by: Fletcher V. Trammell, Robert W. Cowan, Justin C. Jenson,
and Elizabeth W. Dwyer, for appellee.
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