A recent Law 360 story by Kevin Stawicki, “Opioid MDL Judge Won’t Set Up $3B Fund For Plaintiffs’ Attys” reports that an Ohio federal judge refused to set up a $3 billion "common benefit fund" to cover fees incurred by attorneys for the plaintiffs in sprawling multidistrict opioid litigation, saying that now's not the time for a "one-size-fits-all" approach given a possible national settlement.  While U.S. District Judge Dan Aaron Polster agreed with the plaintiffs' view that they deserve fair compensation for litigating the massive MDL over the opioid epidemic, he said the likelihood that separate funds will be provided through a global settlement further complicates how the exact terms of the benefit fund would even look, not to mention other issues like "knotty jurisdictional concerns."

"Because of the inordinate complexity of this MDL, the court is hesitant to enter a 'one-size-fits-all' common benefit order applicable by default to every possible settlement permutation — especially because, at this juncture, both plaintiffs and defendants believe settlement negotiations will lead to a global settlement," Judge Polster said.  After the plaintiffs' executive committee asked the court to approve the common benefit fund in January, pharmaceutical companies like Purdue and Cardinal, along with cities, counties and state attorneys general, lined up to oppose the fee request, saying it could irreparably disrupt progress toward reaching a national settlement.

A group of 37 attorneys general said in a letter in February that the proposal for the fund went "well beyond what is necessary to ensure fair compensation for private counsel" by making some local governments pay more in attorney fees and violating state sovereignty.  Judge Polster recognized that those concerns underscore how difficult it will be to ensure incentives are appropriately set through a common benefit fund, which would have to take into account the settlement amount, which cases settle, what amount of common benefit fund corresponds with particular settlements, and what other plaintiffs' attorney fee arrangements look like.

"It is more prudent to defer entry of a common benefit order than to attempt to re-write those generally-familiar terms to fit the specific, complex particulars of this unique MDL at this critical juncture," Judge Polster wrote.  Paul Geller of Robbins Geller Rudman & Dowd LLP, who represents plaintiffs in the MDL, told Law360 in an email that it's "hard to take issue with the judge's contemplative approach to the entry of a common benefit order.  Seems to me it's a question of timing — a matter of when, not if."