A recent Law 360 story by Aaron West, “9th Circ. Says Non-MDL Clients Can Be Part of Common Fund”, reports that the Ninth Circuit has ruled that a lower court had the authority to deny two Texas law firms' bid to exempt non-multidistrict litigation claims from the assessment of certain attorney fees in an MDL over an allegedly defective catheter device. The appellate court panel published opinion rejected arguments from the Law Offices of Ben C. Martin and the law firm Martin Baughman PLLC, known collectively as BCM, that the district court lacked authority to order common benefit fund assessments against the recoveries of claimants who weren't a part of the MDL.
The non-MDL claimants in this case, the opinion states, included claims that weren't filed in any court, were filed in state court, or filed in federal court after the MDL closed. According to the opinion, after settling their clients' claims against C.R. Bard Inc. and Bard Peripheral Vascular, BCM moved to exempt certain clients' recoveries in non-MDL cases from the common benefit fund assessments, which determine how much each party will pay as far as fees and other costs go.
The district court had denied that motion, and BCM appealed to the Ninth Circuit. The three-judge panel didn't go along with BCM's arguments, however. According to the opinion, in order to exempt attorney fee payment, three elements need to be met. First, the counsel for claimants must voluntarily consent to the district court's authority; second, the participation agreement must be incorporated into a court order; and, third, counsel must receive access to a common benefit work product as a result of the agreement.
Here, those requirements were met, the court wrote, and the district court's order denying BCM's motion to exempt its non-MDL cases from assessment of attorney fees was appropriate. "Under these circumstances, the district court appropriately exercises its authority to enforce its orders establishing a common benefit fund, and therefore properly denied BCM's motion to exempt its non-MDL cases from common benefit assessments," the panel said.