A recent Law 360 story by Mike Curley, “Opioid MDL Judge Orders More Briefing on $3B Atty Fees” reports that an Ohio federal judge overseeing sprawling opioid multidistrict litigation adopted the recommendation of a Harvard Law School professor that more information is needed before he can approve a request for a common benefit fund setting aside $3.3 billion in attorney fees.  U.S. District Judge Dan Aaron Polster ordered more briefing following a report from William B. Rubenstein, the professor who was brought in to assess the plaintiffs' request.  The judge issued a set of questions based on the report to the plaintiffs and other interested parties.

Rubenstein told the court in his report that the MDL's "truly unique" structure and nature means the court should proceed cautiously, saying the request for a common benefit fund "tests uncharted waters."  While a common benefit fund is usually put in place in anticipation of an aggregate settlement, at this point in the opioid MDL, it's unclear whether such a settlement is even feasible, what structure it would take, and which defendants will settle, Rubenstein said.

In addition, there are numerous different types of suits in the MDL, some with many plaintiffs and some with few, and dozens of defendants involved in different aspects of the pharmaceutical chain, Rubenstein said.  As such, smaller settlements that might be taxed to support the benefit fund could take very different forms, he said.  "A single common benefit assessment levied on multiple different types of settlements involving many different types of plaintiffs and multiple defendants runs the risk of being too crude an approach," he said.

That many of the plaintiffs include states, counties, cities and tribal governments could pose other difficult legal questions in establishing the fund, he added.  There are also ongoing settlement negotiations going on in the MDL that could be impacted by the establishment of such a fund, Rubenstein said, citing warnings from the National Association of Attorneys General, who suggested the fee might "disrupt" settlement negotiations "irreparably."

To resolve the issues involved, Rubenstein recommended the court seek briefing from the plaintiffs and other interested parties answering questions on how an aggregate settlement might take shape, how likely parties and lawyers in the smaller cases are to reach an agreement on how much to contribute to such a fund, and how much of the fund should go toward the attorneys, given the size of the MDL and the potential size of such a settlement.  Four attorneys general in October unveiled a proposed $48 billion deal with major drug companies and the nation's largest drug distributor, after which drug companies said 7% of the settlement would amount to more than $3.3 billion in fees.

The idea of a common benefit fund has come under fire in recent months. Opioid manufacturers and distributors — including Johnson & Johnson and McKesson Corp. — pounced on the proposal in February, saying it was nothing more than a "transparent" attempt by lawyers on the plaintiffs' executive committee to grab settlement funds.

Rubenstein, who previously worked on the multimillion-dollar NFL concussion settlement and subsequent fee fight, was tapped in March by Judge Polster to help the court decide whether to approve the $3.3 billion in fees.  "A common benefit order is a widely accepted reality in complex MDLs based on the fundamental fairness of recognizing a distinction between those who work the soil and those who grab the fruit," Paul Geller of Robbins Geller, who represents plaintiffs in the MDL, told Law360.