Appeals court OKs ‘common benefit’ fees in Bard IVC filter litigation. Next stop the Supreme Court? - Lawyers representing plaintiffs who have signed agreements to pay a portion of their fee to chiefs of significant multidistrict litigation have to respect those agreements even if they decide to settle disputes outside the process, as per a federal appeals court ruling that week.
The Justice Now (Sept 2023): Lawyers representing plaintiffs who have signed agreements to pay a portion of their fee to chiefs of significant multidistrict litigation have to respect those agreements even if they decide to settle disputes outside the process, as per a federal appeals court ruling that week.
9th U.S. Circuit Court of Appeals held in In the case of Bard IVC Filters, Product Liability Litigation, the plaintiff’s lawyer, Ben Martin of Ben Martin Law Group, had signed an agreement of participation with chief counsel of the multidistrict litigation involving the blood clot filters and also because he had access to the discovery that was produced by the MDL and was required to pay”common benefit” fees for about 300 cases that he resolved outside the boundaries within the MDL. (Some of the unresolved cases were not filed formally or filed following the time that federal MDL was shut. Other cases were settled through the state courts.)
Martin had claimed in the manner I’ve said in the court that MDL judge U.S. District Judge David Campbell of Phoenix did not have the authority to require the payment of standard benefit fees that are designed to pay MDL counsel for pre-trial discovery as well as motions practice that aids all plaintiffs in non-consolidated cases. Unconsolidated litigation.
The 9th Circuit said, in the end, that Martin was subject to Campbell’s authority through voluntarily being a participant in the MDL. The panel comprised judges John Owens and Bridget Bade, along with U.S. Court of International Trade Judge Miller Baker, sitting by designation – referred to two prior 9th Circuit cases in which the appeals court ruled that MDL judges couldn’t require expected benefits from lawyers representing plaintiffs who didn’t participate in the consolidation proceedings. But that’s not what’s happening in the case now, according to Bade in the court’s unanimous ruling.
“After signing knowingly and willingly the participation agreement,” Martin wrote in her report, Martin “cannot claim now that a district court did not have the authority to enforce its decisions in incorporating the agreement.”
As you might have guessed, the counsel for the lawyers representing plaintiffs is on the Bard IVC steering committee, claiming the appeals court ruled the correct conclusion.
“The judge is merely enforcing an attorney accountable to a contract which he has made for clients and himself,” stated Shannon Clark of Gallagher & Kennedy via email. “It is a travesty for an attorney to profit handsomely from the work product he extensively used without bearing the cost of creating the document.”
But Martin’s attorney, appellate solo (and famous writer) Howard Bashman, told me that the 9th Circuit may not have the final say. Bashman confirmed via email that the client is looking at an appeal in the U.S. Supreme Court to solve the issue of what Bashman says is a growing divide between the federal circuits over the nature of MDL judges’ ability to charge a typical fee for benefit in cases that are not MDL.
The 9th Circuit insisted in its decision on the Martin case that the decision was not in actual contradiction with other appellate decisions involving standard benefits fees. The court first stated that it was in total accordance with the third Circuit’s 2015 decision on The case In Re Avandia Marketing and Product Liability and Sales Practices Legal. In the case, the 3rd Circuit endorsed the Avandia MDL judge’s authority to impose the standard benefit fee from Girardi Keese. The company signed an agreement to participate in the consolidated litigation but did not want to pay fees to settle cases before a state court.
In addition, The 9th Circuit rejected Martin’s argument that under the 8th Circuit’s ruling in the Genetically modified rice Litigation, MDL judges cannot levy fees for expected benefits, which does not apply to cases that state courts settle.
As the 9th Circuit held, there’s a significant distinction between Martin and plaintiffs’ lawyers who fought an agreement to hold back fees within the GMO rice case before the 8th Circuit. In the Bard MDL, the appeals court ruled that Martin signed a standard fee agreement and had access to the steering committee’s work product. In contrast, the 9th Circuit said the attorneys in this GMO rice case didn’t participate in the case consolidated before the federal courts.
Therefore, the 8th Circuit’s stance on whether the judge in charge of the GMO rice MDL was not allowed to impose fees for state court settlements, according to the 9th Circuit, does not set absolute limits to the extent of the MDL judges’ authority. It is only a matter of fact, Bade wrote in the 9th Circuit opinion, “for the simple reason that the court of the district is not given authority to make assessments against the claims of those who are “completely strangers” to the MDL the court manages.” (In a footnote it is noted that the 9th Circuit said its holding is not at all contradictory with an earlier ruling from 1992 that an appeals court in the 4th Circuit reversed an MDL judge’s joint benefit fee decision against plaintiffs not involved in the case consolidated.)
Bashman told me that the 9th Circuit’s logic was “not convincing.” A court of appeals has repeatedly stated that Martin is distinct from plaintiff attorneys in both the 4th and 8th Circuit cases because he agreed to sign a participation agreement, which the MDL judge then added to an order of the court. Consent was not a factor in this GMO rice matter, Bashman said, because the 8th Circuit flatly said the MDL judge didn’t have the authority to impose fees for common benefit on cases not part of the MDL.
In addition, Bashman said, Martin’s consent is an untruth. Plaintiffs’ lawyers representing clients who have had their cases transferred to MDL proceedings are forced other than to accept participation so that they do not lose access to the evidence they need to be able to offer a fair representation to their clients.
Bashman declared, in essence, that the 9th Circuit, by emphasizing Martin’s consent, omitted the issue of “whether MDL courts do or are not able to assess MDL-related cases.”
On that issue, he noted that there’s a clear division in the 8th and 4th Circuits having to limit the authority of MDL judges beyond the case they are deciding, and the 9th and 3rd Circuits refusing to set stringent guidelines.
If you or someone close to you has ever used Bard Powerport Catheter or Bard IVC filter and has experienced health issues then you are eligible, you could be able to file a case and get your due compensation.
