Petition for Writ of Certiorari — Anderson Law Offices, et al., Petitioners v. Common Benefit Fee and Cost Committee

No. _________

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------ANDERSON LAW OFFICES,

BENJAMIN H. ANDERSON,

Petitioners,

v.

COMMON BENEFIT FEE AND COST COMMITTEE,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------PAUL W. FLOWERS, ESQ.

Counsel of Record

LOUIS E. GRUBE, ESQ.

PAUL W. FLOWERS CO., L.P.A.

50 Public Square, Suite 1910

Cleveland, Ohio 44113

(216) 344-9393

pwf@pwfco.com

leg@pwfco.com

Attorneys for Petitioners

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The central question posed in this appeal is as follows:

Whether federal district courts possess the

authority to require appeal rights to be

waived as a condition for receiving an award

available under law.

The District Court below appears to be the first in

the history of modern jurisprudence to refuse to consider granting a monetary recovery to any applicant

that had not expressly or implicitly consented to relinquish the right to appeal the decision. Secure in their

belief that their decisions could never be reviewed,

both the District Court and the panel of the United

States Court of Appeals for the Fourth Circuit then

proceeded to abdicate their fundamental judicial responsibilities to carefully scrutinize and adjudicate the

applications submitted by eighty-nine law firms seeking an equitable apportionment of the estimated $550

million Common Benefit Fund (“Fund”) that had been

collected in the Transvaginal Mesh Multi-District Litigation proceedings. These judicial duties were relegated instead to Respondent, the Common Benefit

Fee and Cost Committee (“FCC”), which consists of

eight attorney representatives of the applicant law

firms and one private individual. Predictably, the

FCC’s members awarded themselves almost exactly

two-thirds of the fund, while flatly refusing to allow

any of the non-member firms to review the time

ii

QUESTIONS PRESENTED—Continued

entries or expense receipts that purportedly justified

their stunning allotment. Petitioners, Anderson Law

Offices and Benjamin H. Anderson (collectively, “ALO”),

and other non-member firms lodged numerous objections to the federal court’s abandonment of its due

process responsibilities and sought an opportunity to

be heard through an evidentiary hearing, all to no

avail.

The District Court casually dispensed with dozens

of well-developed objections and approved the FCC’s

evident self-dealing in a single six-page opinion. And

in a single-sentence decision, the United States Court

of Appeals for the Fourth Circuit dismissed Petitioners’

appeal with no further explanation.

Subsumed within the central question of whether

federal courts are empowered to order the relinquishment of appeal rights are the following specific issues

of concern that are ripe for review:

a. What are the elemental requirements for an

enforceable waiver of the right to appellate review

in federal proceedings?

b. Whether assent to a forfeiture of appeal rights

may be implied from mere acquiescence to a district court’s order.

c. Whether express and knowing consent to a forfeiture of appeal rights must be established either

through a valid written instrument or in open

court.

iii

QUESTIONS PRESENTED—Continued

d. Whether the scope of implied or involuntary

waivers of appeal rights must be narrowly construed against the forfeiture under federal law.

e. Whether there is an enforceable, implied guarantee in an otherwise valid waiver of appeal rights

that the federal court will still abide by its own

rulings in the case as well as basic principles of

due process.

iv

PARTIES TO THE PROCEEDING

Petitioner Anderson Law Offices is a legal professional association that was organized and based at the

relevant time period in Cleveland, Ohio. Petitioner

Benjamin H. Anderson was and is the Principal Attorney of Petitioner Anderson Law Offices and a citizen of

the United States of America. Respondent Common

Benefit Fee and Cost Committee is an organization of

eight law-firm representatives and one private individual appointed by the United States District Court for

the Southern District of West Virginia for the purpose

of recommending an allocation of the estimated $550

million Common Benefit Fund that is at issue in this

appeal.

CORPORATE DISCLOSURE

Petitioner Anderson Law Offices has no parent

corporation and is not owned in any part by a publicly

held company.

DIRECTLY RELATED PROCEEDINGS

Anderson Law Offices v. Common Benefit Fee and Cost

Committee, Nos. 19-1849, 19-1850, 19-1851, 19-1853,

19-1855, 19-1856, 19-1857, United States Court of Appeals for the Fourth Circuit. Judgment Entered Sept.

23, 2019.

Bernstein Liebhard LLP v. Common Benefit Fee and

Cost Committee, No. 19-1892, United States Court of

v

DIRECTLY RELATED PROCEEDINGS

—Continued

Appeals for the Fourth Circuit. Judgment Entered

Sept. 23, 2019.

Mazie Slater Katz & Freeman, LLC v. Common Benefit

Fee and Cost Committee, Nos. 19-1943, 19-1944, 191945, 19-1947, 19-1948, 19-1949, 19-1950, United

States Court of Appeals for the Fourth Circuit. Judgment Entered Oct. 9, 2019. Rehearing en banc denied

November 5, 2019.

In re: C. R. Bard, Inc., Pelvic Repair System Products

Liability Litig., No. 2:10-md-02187, United States District Court for the Southern District of West Virginia.

Judgment Entered July 25, 2019.

In re: American Medical Systems, Inc., Pelvic Repair

System Products Liability Litig., No. 2:12-md-02325,

United States District Court for the Southern District

of West Virginia. Judgment Entered July 25, 2019.

In re: Boston Scientific Corp. Pelvic Repair System

Products Liability Litig., No. 2:12-md-02326, United

States District Court for the Southern District of West

Virginia. Judgment Entered July 25, 2019.

In re: Ethicon, Inc. Pelvic Repair System Products Liability Litig., No. 2:12-md-02327, United States District

Court for the Southern District of West Virginia. Judgment Entered July 25, 2019.

In re: Coloplast Corp., Pelvic Support Systems Products

Liability Litig., No. 2:12-md-02387, United States

vi

DIRECTLY RELATED PROCEEDINGS

—Continued

District Court for the Southern District of West Virginia. Judgment Entered July 25, 2019.

In re: Cook Medical, Inc., Pelvic Repair System Products

Liability Litig., No. 2:13-md-02440, United States District Court for the Southern District of West Virginia.

Judgment Entered July 25, 2019.

In re: Neomedic Pelvic Repair System Products Liability Litig., No. 2:14-md-02511, United States District

Court for the Southern District of West Virginia. Judgment Entered July 25, 2019.

vii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

iv

CORPORATE DISCLOSURE ..............................

iv

DIRECTLY RELATED PROCEEDINGS .............

iv

TABLE OF CONTENTS ...................................... vii

TABLE OF AUTHORITIES .................................

x

OPINIONS BELOW.............................................

1

STATEMENT OF JURISDICTION .....................

1

CONSTITUTIONAL AUTHORITY

INVOLVED .....................................................

1

STATEMENT OF THE CASE..............................

2

REASONS FOR GRANTING THE PETITION ... 13

I.

THIS DISPUTE PRESENTS AN IMPORTANT QUESTION OF FEDERAL LAW

THAT HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT....................... 13

A. THE ESTABLISHMENT OF AN UNACCEPTABLE PRECEDENT ............. 13

B. THE IMPLIED FORFEITURE THEORY ..................................................... 19

C. THE LACK OF VALID CONSIDERATION .................................................... 22

D. THE PROPER SCOPE OF THE FORFEITURE PROVISIONS ..................... 24

viii

TABLE OF CONTENTS—Continued

Page

II.

THIS DISPUTE PRESENTS A LIVE CASE

AND CONTROVERSY ............................... 26

CONCLUSION..................................................... 28

APPENDIX

United States Court of Appeals for the Fourth

Circuit, Dismissal Order, dated September 23,

2019 .................................................................. App. 1

United States Court of Appeals for the Fourth

Circuit, Final Judgement, dated September

23, 2019 ............................................................ App. 6

United States District Court for the Southern

District of West Virginia, Memorandum Opinion and Order, dated July 25, 2019................ App. 11

Recommended Allocation of the External Review

Specialist, dated March 11, 2019................... App. 19

Final Written Recommendation of the Common

Benefit Fee and Cost Committee ................... App. 57

Preliminary Written Recommendation of the Common Benefit Fee and Cost Committee ......... App. 174

Letter, Paul W. Flowers, dated September 27,

2018 .............................................................. App. 179

Letter, Hon. Daniel J. Stack, dated September

28, 2018 ........................................................ App. 183

ix

TABLE OF CONTENTS—Continued

Page

Anderson Law Offices’ Objections to Common

Benefit Fee Allocation in the United States

District Court for the Southern District of

West Virginia, dated March 26, 2019 .......... App. 187

Anderson Law Offices’ Motion to Schedule Hearing in the United States District Court for the

Southern District of West Virginia, dated

April 22, 2019 ............................................... App. 224

x

TABLE OF AUTHORITIES

Page

CASES

Allen v. Wright, 468 U.S. 737 (1984) ...........................27

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)............27

Anderson Law Offices v. Common Benefit Fee

and Cost Committee, 4th Cir. Case Nos. 191856, 19-1857 ..........................................................22

Averitt v. Southland Motor Inn of Oklahoma,

720 F.2d 1178 (10th Cir. 1983) ................................22

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ............4

Brown v. Gillette Co., 723 F.2d 192 (1st Cir. 1983) ....... 19

Brundle on behalf of Constellis Employee Stock

Ownership Plan v. Wilmington Tr., N.A., 919

F.3d 763 (4th Cir. 2019) ...........................................23

Goodsell v. Shea, 651 F.2d 765 (C.C.P.A. 1981) .... 19, 22

Gramling v. Food Mach. & Chem. Corp., 151

F. Supp. 853 (W.D.S.C. 1957) ...................................23

In re Avandia Mktg., Sales Practices & Prod.

Liab. Litig., 617 F. App’x 136 (3d Cir. 2015) .............4

In re Cook Med., Inc., Pelvic Repair Sys. Prod.

Liab. Litig., 365 F. Supp. 3d 685 (S.D. W. Va.

2019) .................................................... 6, 9, 11, 15, 22

In re Genetically Modified Rice Litig., 835 F.3d

822 (8th Cir. 2016) .....................................................4

In re High Sulfur Content Gasoline Prod. Liab.

Litig., 517 F.3d 220 (5th Cir. 2008) ...........................5

xi

TABLE OF AUTHORITIES—Continued

Page

In re Lupron Mktg. & Sales Practices Litig., 677

F.3d 21 (1st Cir. 2012) .............................................23

In re Lybarger, 793 F.2d 136 (6th Cir. 1986) ..............19

In re Syngenta Mass Tort Actions, No. 3:15-CV01221-NJR, 2019 WL 3887515 (S.D. Ill. Aug.

19, 2019) .......................................................... passim

In re Vioxx Prod. Liab. Litig., 760 F. Supp. 2d 640

(E.D. La. 2010) .........................................................10

MACTEC, Inc. v. Gorelick, 427 F.3d 821 (10th

Cir. 2005) .................................................................19

Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970) .... 4, 23

Morrison v. Warren, 375 F.3d 468 (6th Cir. 2004) .......26

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986) .......................9

Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982) .........26

Scott v. C.R. Bard, Inc., 231 Cal. App. 4th 763,

180 Cal. Rptr. 3d 479 (2014) .....................................2

Slattery v. Ancient Order of Hibernians in Am.,

Inc., No. 97-7173, 1998 WL 135601 (D.C. Cir.

Feb. 9, 1998).............................................................19

Steffel v. Thompson, 415 U.S. 452 (1974) ...................27

Turner v. Blackburn, 389 F. Supp. 1250 (W.D.N.C.

1975) ....................................................................26

United States v. Attar, 38 F.3d 727 (4th Cir.

1994) .................................................................. 21, 26

xii

TABLE OF AUTHORITIES—Continued

Page

United States v. Bushert, 997 F.2d 1343 (11th

Cir. 1993) .................................................................22

United States v. Davis, 689 F.3d 349 (4th Cir.

2012) ........................................................................26

United States v. Hernandez, 242 F.3d 110 (2d Cir.

2001) ........................................................................25

United States v. Johnson, 410 F.3d 137 (4th Cir.

2005) .................................................................. 21, 26

United States v. Khattak, 273 F.3d 557 (3d Cir.

2001) ........................................................................25

United States v. Lutchman, 910 F.3d 33 (2d Cir.

2018) ........................................................................23

United States v. McCoy, 508 F.3d 74 (1st Cir.

2007) ........................................................................25

United States v. Nunez, 223 F.3d 956 (9th Cir.

2000) ........................................................................23

United States v. Quintero, 618 F.3d 746 (7th Cir.

2010) ........................................................................23

United States v. Reap, 391 F. App’x 99 (2d Cir.

2010) ........................................................................23

Walls v. Cent. Contra Costa Transit Auth., 653

F.3d 963 (9th Cir. 2011) ...........................................26

Ziyad Mini Mkt. v. United States, 302 F. Supp. 2d

124 (W.D.N.Y. 2003).................................................19

xiii

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ....................................................1

U.S. Const. amend. VI .................................................21

U.S. Const. art. III .......................................................26

STATUTE

28 U.S.C. § 1254(1) ........................................................1

RULE

Fed. R. Civ. P. 59(e)......................................................11

OTHER AUTHORITIES

Affidavit of Benjamin H. Anderson, Esq. dated

April 9, 2018 .................................................... 3, 5, 23

Declaration of Henry G. Garrard III, dated November 19, 2018 ................................................. 7, 8, 9

FCC Preliminary Written Recommendation dated

September 13, 2018 ............................................... 7, 8

1

OPINIONS BELOW

The order and judgment of the United States

Court of Appeals for the Fourth Circuit in Consolidated

Docket Numbers 19-1849, 19-1850, 19-1851, 19-1853,

and 19-1855 dismissing Petitioners’ appeal were issued on September 23, 2019, and are unpublished. The

Memorandum Opinion and Order entered by the

United States District Court for the Southern District

of West Virginia overruling all objections and approving Respondent FCC’s common-benefit fee allocations

was issued on July 25, 2019, and is unpublished.

------------------------------------------------------------------

STATEMENT OF JURISDICTION

This Court’s jurisdiction is drawn from 28 U.S.C.

§ 1254(1).

------------------------------------------------------------------

CONSTITUTIONAL AUTHORITY INVOLVED

The Fifth Amendment to the United States Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

2

witness against himself, nor be deprived of

life, liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

------------------------------------------------------------------

STATEMENT OF THE CASE

In July 2012, a civil jury seated in Bakersfield,

California rendered a verdict for $5 million in favor of

Christine Scott as a result of serious and disabling internal complications she suffered following the surgical implantation of an Avaulta Plus Transvaginal

Mesh (“TVM”) device in her abdomen to correct urinary incontinence. Kern County Superior Court (Ca.)

Case No. CV-266034. The judgment was upheld in an

appeal that was commenced by the product manufacturer, C.R. Bard, Inc. (“Bard”). Scott v. C.R. Bard, Inc.,

231 Cal. App. 4th 763, 180 Cal. Rptr. 3d 479 (2014).

Christine Scott’s products liability action spawned

a multitude of similar lawsuits against Bard in state

and federal courts across the country, which were ultimately consolidated in a multi-district litigation (“MDL”)

proceeding based in the United States District Court

for the Southern District of West Virginia. Case No.

2:10-md-02187. Similar lawsuits against other TVM

manufacturers were also designated as MDLs and

assigned to that same court. S.D.W. Va. Case Nos. 2:12md-02325, 2:12-md-02326, 2:12-md-02327, 2:12-md02387, 2:13-md-02440, 2:14-md-02511. Although each

MDL retained its separate status throughout the

proceedings, the District Court generally handled

3

them collectively, with all MDLs subject to the same

orders and directives.1

Of the hundreds of law firms involved in the TVM

MDLs, Petitioner ALO was at the forefront of litigating

for the common benefit of over 100,000 women who had

suffered lifelong, debilitating injuries from the TVM

implants. ALO’s early introduction and extensive involvement in the proceedings had differed markedly

from the other firms in several important respects. By

approximately May 2011, Petitioner Benjamin Anderson, Esq. (“Attorney Anderson”) had devoted his entire

practice to this effort against the well-funded legal defense that had been organized by the TVM product

manufacturers. Affidavit of Benjamin H. Anderson,

Esq. dated April 9, 2018 (“Anderson Aff.”), ¶ 5(a).2 ALO

was one of the first to undertake the mass tort effort

that was originally consolidated in the New Jersey

state court system against Ethicon, a division of Johnson & Johnson. Id., pp. 13-14.

Modern federal jurisprudence has recognized that

under principles of equity, special compensation is

owed to the pioneering attorneys who have served the

1

For ease of reference, the remainder of this Petition will refer only to the Ethicon MDL Orders and Entries. Case No. 12-md02327. The documents reproduced in the Appendix were filed in

identical form in each MDL.

2

This document, among others cited in this petition without

“PageID#” references, would have been filed as a part of the in

camera review of the FCC materials that was ordered by the District Court. Doc#:7639, Pretrial Order#:332, pp. 2-3; PageID#:

188217-18.

4

common benefit of all by developing and establishing

successful claims for recovery in mass tort litigation.

Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 391-92 (1970);

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). Typically in MDL proceedings, an order is issued requiring

a small percentage of every settlement or judgment recovery to be paid into a common-benefit fund to be distributed by the court to the deserving law firms near

the conclusion of the litigation. See, e.g., In re Genetically Modified Rice Litig., 835 F.3d 822, 825-26 (8th

Cir. 2016); In re Avandia Mktg., Sales Practices & Prod.

Liab. Litig., 617 F. App’x 136, 141 (3d Cir. 2015).

In anticipation of common-benefit awards in the

instant proceedings, a written agreement was entered

on August 28, 2012, between representatives of both

the New Jersey proceedings and the recently formed

Federal Ethicon MDL action (S.D.W. Va. Case No. 2:12md-02327) that required the state court commonbenefit work to be afforded full and fair consideration

in the common-benefit fee-allocation process. The consolidated New Jersey action then merged into the

federal MDL proceedings, in which the right to compensation for state-court common-benefit work already

performed was judicially recognized. Doc#:282, Pretrial Order#:18, pp. 11-12; PageID#:3892-93.

The District Court followed the customary practice of establishing Respondent FCC, which was comprised of eight attorneys representing the TVM plaintiffs

and a single non-attorney designee. Doc#:4044, Pretrial

Order#:262, pp. 2-5; PageID#:141778-81. The FCC’s responsibility was “to make recommendations to the

5

Court for reimbursement of costs and apportionment

of attorneys’ fees for common benefit work and any

other utilization of the funds.” Doc#:1845, Pretrial Order#:211, p. 5; PageID#:23550. The Court remained obligated, however, to closely scrutinize the committee’s

proposals, particularly given the inherent conflict of

interest that was present. In re High Sulfur Content

Gasoline Prod. Liab. Litig., 517 F.3d 220, 227 (5th Cir.

2008).

What was unconventional, however, was the District Court’s unconditional requirement that attorneys

seeking such common-benefit compensation forfeit

specified rights to appellate review. A definition of

“Participating Counsel” was fashioned and adopted in

each of the seven MDL proceedings that included an

acknowledgement “that the court will have final, nonappealable authority regarding the award of fees, the

allocation of those fees and awards for cost reimbursements in this matter.” See Doc#:282, Pretrial Order#:18,

pp. 5-6; PageID#:3886-87. No option was afforded that

would allow a firm to secure payment for its commonbenefit contributions while retaining the right to further review. By that point in time, ALO had already

generated several thousand hours of such work in the

consolidated New Jersey proceedings. Anderson Aff.,

p. 14, ¶ 5(p)(4) (noting that 2,643 hours of commonbenefit work had been conducted in New Jersey by

February 7, 2012).

These seven case-management orders were expressly endorsed by several of the attorneys who had

been performing common-benefit work, nearly all of

6

whom were either appointed to the FCC or later rewarded with generous fee allocations. ALO’s electronic

signature appeared on just two of the entries, which

were adopted in the MDLs that have now closed without producing significant common-benefit contributions.3 Neither of these moot MDLs have been included

in this appeal. ALO was not asked to, and did not, consent to the appeal waiver edicts in the other five MDLs,

which are at issue in this Petition.

The District Court also established the position of

External Review Specialist (“ERS”), which was later

filled by former Missouri State Court Judge Daniel J.

Stack (“Stack”). Doc#: 404, PTO#:262, p. 9; PageID#:

141785. Notably, he has received heavy criticism from

a different district court judge while serving in the

same capacity in a separate MDL proceeding, who rejected Stack’s report and recommendations “due to several structural and procedural flaws.” In re Syngenta

Mass Tort Actions, No. 3:15-CV-01221-NJR, 2019 WL

3

Although not a part of this appeal, the two case management orders bearing Attorney Anderson’s electronic endorsement

are: In re: Cook Medical, Inc., Pelvic Repair System Products Liability Litig., S.D.W. Va. No. 2:13-md-02440 (“Cook”), Doc#:43, Pretrial Order#:11, p. 14; PageID#:580; and In re: Neomedic Pelvic

Repair System Products Liability Litig., S.D.W. Va. No. 2:14-md02511(“Neomedic”), Doc#:78, Pretrial Order#:20, p. 16; PageID#:

514. The Cook MDL closed on August 6, 2019. Cook, Doc#:751,

Order, p. 1; PageID#:14194. The Neomedic MDL closed on March

12, 2018. Neomedic, Doc#:78, Pretrial Order#:20, p. 16; PageID#:

514. All common-benefit funds on hand as of July 25, 2019, have

been disbursed consistent with the District Court’s Order.

Doc#:8453, Pretrial Order#:342, p. 6; PageID#:205790, App. 17.

Significant funds are still being assessed in the other five MDLs

now on appeal. Id., p. 6, App. 17-18.

7

3887515, at *5 (S.D. Ill. Aug. 19, 2019). The decision described Stack’s approach as a “totally unprecedented

methodology that runs contrary to Common Benefit

principles” as well as the prior orders that had been

issued. Id. at *5 n.4.

During the course of Respondent FCC’s review of

the eighty-nine participating law firms’ time and expense submissions, there was nothing “external” about

ERS Stack’s involvement in the effort. According to the

Chairperson, he attended and participated in “almost

all” of the FCC’s closed-door meetings. Declaration of

Henry G. Garrard III, dated November 19, 2018 (“Garrard Dec.”), p. 20, ¶ 127. Stack even served as the FCC’s

advocate at times, such as when he issued a lengthy

and terse response just one day after ALO’s seemingly

unobjectionable request to be allowed to review the

time and expenses data that purportedly justified the

lopsided fee allocations.

Respondent FCC’s Preliminary Recommendations

were released on September 13, 2018, which proposed

that its eight member firms should be paid almost precisely two-thirds of the Fund that was supposed to be

shared with ALO and eighty-four other applicants.4

See FCC Preliminary Written Recommendation dated

4

While ALO and the other non-member firms were never allowed to review the FCC members’ own time entries and expense

receipts, Petitioners’ counsel were still able to prepare spreadsheets detailing the total allocations that were recommended by

the FCC, which were attached to Anderson Law Office’s Objections

to the Preliminary Recommendations of the Common Benefit Fee

and Cost Committee dated October 5, 2018, at Apx. 0001-6.

8

September 13, 2018, App. 174-178. Although their own

time and expense entries were never openly disclosed, simple calculations revealed that they were

proposing to pay themselves an average hourly rate of

$783.02, while the average for the other firms was just

$268.22.

Acting as a de facto member of the FCC, ERS

Stack immediately signed and endorsed the FCC’s Preliminary Recommendations before any objections

could be raised. FCC Preliminary Written Recommendation dated September 13, 2018, p. 3, App. 178.

While minor adjustments were made to the initial

figures, neither the staggering two-thirds recovery

nor the nearly three-to-one disparity in the hourly

rates were significantly altered in the FCC’s Final

Written Recommendations of November 20, 2018.

FCC Final Written Recommendation, App. 58-172. The

FCC did disclose at that time that the allocations

were no longer founded upon the detailed time entries

that the attorneys had been required to submit to the

court-appointed accountant. According to the Chairperson’s sworn statement: “The FCC did not use an

hourly rate method in arriving at its percent allocation

for each applicant firm.” Garrard Dec., p. 33, ¶ 223 (emphasis added). Instead, “the Chairperson proposed a

series of awards utilizing a percentage of the funds for

each of the applicant firms.” Id., p. 30, ¶ 201. This was

the same purely subjective methodology that Chief

District Judge Rosenstengel had found to be unacceptable in her criticism of ERS Stack’s report in the

9

other MDL proceeding. In re Syngenta, 2019 WL

3887515, at *3-5.

The Chairperson suggested that a lodestar analysis served some secondary role, commenting that “the

FCC performed a review of the effective hourly rates

resulting from its percentage award set forth in its Preliminary Written Recommendation.” Garrard, Dec., p.

33, ¶ 223. But the same sworn statement had expressed: “The FCC did not request any information regarding billing rates utilized by applicant firms.” Id., p.

31, ¶ 207. Rather obviously, billing rates are indispensable for any meaningful lodestar computation. See

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546, 565 (1986) (“A strong presumption that the lodestar figure—the product of reasonable hours times a reasonable rate—represents a

‘reasonable’ fee is wholly consistent with the rationale

behind the usual fee-shifting statute[.]”).

On January 30, 2019, District Judge Goodwin approved the FCC’s requests in the seven MDLs for five

percent of the recoveries realized to date—totaling

$7.25 billion—to be disbursed for common-benefit

work performed and expenses advanced. In re Cook

Med., Inc., Pelvic Repair Sys. Prod. Liab. Litig., 365

F. Supp. 3d 685 (S.D.W. Va. 2019). There was no suggestion in the ruling that the Court intended to follow

the FCC’s lead and abandon the time data as a basis

for calculating the reasonable allocations to the applicant attorneys. To the contrary, a “blended” approach

was adopted in which District Judge Goodwin would

“verify the reasonableness of the 5% award with a

10

lodestar cross-check.” Id. at 695-96, citing In re Vioxx

Prod. Liab. Litig., 760 F. Supp. 2d 640, 652 (E.D. La.

2010).

Given that Respondent FCC had forsaken the traditional lodestar/multiplier calculations in favor of the

percentage-of-the-funds approach that ERS Stack had

attempted to employ in In re Syngenta, 2019 WL

38887515, at *3, it came as no surprise that he approved the FCC’s Final Recommendations with only

minor adjustments on March 11, 2019. ERS Recommended Allocation, App. 19-57. The eight member firms’

collective share remained close to two-thirds of the

fund, while the nearly three-to-one disparity in hourly

rates ($738.02 vs. $268.22) was left intact. See Doc#:

7718-2, Fee and Expense Grid; PageID#:189431-34.

The following day, the District Court directed the

FCC to submit the original and adjusted time entries,

the attorneys’ objections, and additional information

for an in camera review. Doc#:7639, Pretrial Order#:

332, pp. 2-3; PageID#:188217-18. Petitioner ALO and

several other non-member firms filed their comprehensive objections to the FCC’s Final Recommendations

on March 26, 2019. ALO observed inter alia: “It is not

realistic to expect that all the flaws and errors in the

fund allocation process can be identified and substantiated if the submitted time and expense data remains

concealed.” Doc#:7718, ALO’s Objections, p. 7; PageID#:

189399, App. 187-223. In the seventy-five-page Omnibus Response that followed, the FCC members continued to insist that the allocations should be approved

without any disclosure to objectors of the FCC

11

members’ own time and expense entries and supporting data. Doc#:7816, FCC’s Omnibus Response;

PageID#: 190025.

On April 22, 2019, Petitioner ALO formally

sought a hearing to present additional evidence and

argument upon new criticisms that the FCC had

leveled against the firm’s billing statements in the

Omnibus Response. Doc#:7896, Motion to Schedule

Hearing; PageID#:198956, App. 224-232. Respondent

FCC vigorously opposed the request. Doc#:8005,

FCC’s Response; PageID#:58197.

Despite the parties’ submission of over 150 pages

of briefing, the District Court remarked in the decision

that was issued on July 25, 2019, that there had been

“very few objections[.]” Doc#:8453, Pretrial Order#:

342, p. 1; PageID#:205790, App. 11. The Court summarily overruled all objections in a six-page ruling without

specifically addressing a single one. Id., pp. 1-6; PageID#:

205790-95, App. 11-18. And the Court furnished no indication that it had performed a lodestar cross-check

with the eighty-nine applicant firms’ submitted time

entries multiplied by reasonable hourly rates as promised in the January 30, 2019 ruling. See id.; In re Cook

Med., Inc., 365 F. Supp. 3d at 695-96.

As permitted by Fed. R. Civ. P. 59(e), Petitioner

ALO requested on July 30, 2019, that the District

Court modify the final order to reflect that there

had been no waiver of any rights to appeal because

(1) the firms had been justifiably relying upon prior

orders requiring the fee allocations to be based at least

12

in part upon objectively verifiable lodestar calculations; and (2) no viable alternatives had been afforded

to firms like ALO, which were already heavily invested in common-benefit work. Doc#:8460, Motion

to Partially Alter, Amend, or Reconsider Judgment;

PageID#:205873. Respondent FCC’s opposition followed

two days later. Doc#:8465, FCC’s Response to Motion

to Partially Alter, Amend, or Reconsider Judgment;

PageID#:205916. The Motion was denied the next day.

Doc#:8470, Memorandum Opinion and Order;

PageID#:205960.

On August 2, 2019, Petitioner ALO appealed the

District Court’s decisions in all seven MDLs to the

United States Court of Appeals for the Fourth Circuit.

Doc#:8472, ALO Notice of Appeal; PageID#:205966.

The seven appeals were consolidated seven days later

under case numbers 19-1849(L), 19-1850, 19-1851, 191853, 19-1855, 19-1856, and 19-1857. Wasting no time,

Respondent FCC filed a Motion to Dismiss that same

afternoon demanding enforcement of the District

Court’s appeal waiver orders. Doc#:4. ALO opposed

this request on multiple grounds, and the FCC submitted a Reply. Doc#:14, 20.

On September 23, 2019, the United States Court

of Appeals for the Fourth Circuit summarily dismissed

all seven appeals. The order stated, in its entirety:

Upon review of submissions relative to the

motions to dismiss and the motion to stay

pending appeal, the Court grants the motions

to dismiss and denies the motion for stay

pending appeal.

13

Entered at the direction of Judge Agee, and

with the concurrence of Judge King and Judge

Diaz.

Doc#:24, Order, p. 5, App. 5.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

Petitioner ALO now seeks further review in this

Court and offers the following reasons why a writ of

certiorari is warranted.

I.

THIS DISPUTE PRESENTS AN IMPORTANT QUESTION OF FEDERAL LAW

THAT HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT

A. THE ESTABLISHMENT OF AN UNACCEPTABLE PRECEDENT

Barring this Court’s intervention, the ill-advised

decisions rendered below will undoubtedly be cited

time-and-time again as allowing district courts to require litigants to forfeit rights of appeal before affording any consideration to requests for relief. Such

waivers are, of course, commonplace in criminal plea

arrangements and civil alternative dispute resolution

agreements. But in those circumstances, the parties’

voluntary consent is acknowledged in writing, or at

least in open court, and valuable consideration is exchanged in return. And some mechanism of review

always remains available to rectify an injustice in

the rare instance that due process rights or other

14

protected interests are violated in the remainder of the

proceedings.

But in contrast to those acceptable forms of appeal

waivers, the District Court below embarked upon an

unprecedented approach: It made a forfeiture of appellate review mandatory for any law firm seeking a share

of the Common Benefit Fund. There were no exceptions. The absence of any viable alternatives was particularly and acutely problematic for Petitioner ALO,

which had already devoted considerable commonbenefit time to the consolidated TVM proceedings in

New Jersey. Had the firm refused to acquiesce to the

District Court’s “take-it-or-lose-it” edict, Attorney Anderson would not have qualified as “participating counsel” and would have received nothing for the effort he

had already expended.

The lower courts’ unapologetic abuse of the mandatory appeal waivers is even more troubling. As reflected in both the District Court’s six-page Common

Benefit Fee Order and the Fourth Circuit panel’s

single-sentence dismissal entry, the responsibility for

ensuring a fair and equitable distribution of the $550

million fund amongst the eighty-nine participating

firms was left solely to Respondent FCC and ERS

Stack. Given that the eight FCC member firms generously awarded themselves over two-thirds of the fund,

while refusing to release their own time and expense

entries to the other applicants, their self-dealing could

not have been more evident.

15

The lower courts were completely indifferent not

only to Respondent FCC’s unmistakable selfindulgence but also to its the eleventh-hour adoption

of the subjective percentage-of-the-funds approach

that had sparked criticism of ERS Stack in In re Syngenta, 2019 WL 3887515, at *3-5. District Judge Goodwin’s prior orders had furnished assurances that the

traditional lodestar/multiplier calculations would be

employed at least as a cross-check, but that was never

done. In re Cook Med., Inc., 365 F. Supp. 3d at 695-96.

And Chief District Judge Rosenstengel’s rejection of

ERS Stack’s recommendations in Syngenta had raised

additional grounds for concern. Her explanation of her

decision focused primarily upon a group of law firms

that was led by Clark, Love & Hutson, GP (the “Clark/

Phipps Group”). Id., 2019 WL 3887515, at *2. ERS

Stack had praised the Clark/Phipps Group in his proposals and awarded them nearly eighty percent of the

common-benefit fund. Id. at *2-5. But the District

Court observed that “a large portion of Clark/Phipps’

time is logged by anonymous employees, and their time

summaries are not supported by contemporaneous

time records.” Id. at *6. ERS Stack thus “erred by not

scrutinizing Clark/Phipps’ time at all, given the tremendous discrepancy between the number of hours

Clark/Phipps submitted and the number of hours the

other firms across this litigation submitted.” Id. Despite the District Courts’ earlier instructions, ERS

Stack’s proposal did not “meaningfully differentiate

between the types of work underlying the common

benefit hours or who performed the work.” Id.

16

For the Clark/Phipps Group in particular, “over

two-thirds of those hours are attributable to miscellaneous non-attorneys and include a staggering 22,499.80

hours of ‘assisting clients in perfecting claims in settlement’ and 48,221.10 hours of ‘pre-settlement communication with clients.’ ” In re Syngenta, 2019 WL

3887515, at *6. The District Court found that much of

the Clark/Phipps Group’s work had been counterproductive and actually assisted the defense. Id. at *7.

Chief District Judge Rosenstengel proceeded to slash

ERS Stack’s allocation for the Clark/Phipps Group by

nearly $23.5 million. Id. at *7-8.

The Syngenta decision should have merited careful consideration in the instant action for at least two

reasons. First, Chief District Judge Rosenstengel’s

thorough and unerring analysis presented a compelling example of how common-benefit fee allocations

should be closely scrutinized by the district courts,

something which plainly has not been undertaken in

this case. And perhaps more significantly, in the proceedings below, the Clark, Love & Hutson firm also received another astonishingly generous fee allocation

from ERS Stack of over $43 million. Doc#:7718-2, Fee

and Expense Grid; PageID#:189431. Their effective

hourly rate of $913.39 was the highest of all the eightythree firms receiving common-benefit awards. Id. It

was later disclosed that the firm had been employing

almost as many paralegals (seventeen) as attorneys

(nineteen) in the effort. Doc#:7816, FCC’s Omnibus Response, p. 38; PageID#:190062. Because the time and

expense entries that were submitted by Clark, Love &

17

Hutson, as well as the other FCC members, have been

tightly concealed, it is impossible for ALO to confirm

whether or not the same sort of billing deficiencies and

irregularities have been committed in these proceedings, as had been the case in In re Syngenta, 2019 WL

3887515.

Petitioner ALO has always recognized that a number of advantages are furnished by valid waivers of appeal rights that are voluntarily accepted in exchange

for valuable consideration. But it is doubtful that such

agreements will ever be entered into if they can be employed by a court as a justification for shirking fundamental judicial responsibilities. That is precisely the

circumstance that developed below once the appeal

waivers were ordered and ERS Stack’s perfunctory endorsement was issued; a failure of due process that

cannot be altered by the FCC’s vacuous promises that

the manifestly one-sided allocations were “fairly” and

“painstakingly” rendered by the same eight firms that

ultimately profited the most. A disturbing precedent

has thus been established that threatens to discourage

litigants from ever waiving their appeal rights out of a

well-placed concern that the proceedings will devolve

into an unchecked free-for-all.

It is not difficult to imagine the deleterious consequences that would immediately follow if the lower

courts’ unprecedented appeal waiver rulings are allowed to stand. The logical implication would be that

in any scenario, unreviewable decisions could now be

arranged. As but one example, a court could advise litigants in an entry that it will resolve a complex

18

discovery dispute on a privilege issue only with the understanding that their right to appeal the decision is

being waived. Or a like-minded court could refuse to

empanel a jury in a criminal case unless the defendant

agrees that there will be no appellate review of the verdict. Such edicts can always be justified with Respondent FCC’s glib explanation that they “avoid the

potential for expensive and prolonged disputes with

disgruntled or disappointed” parties. Doc#:4, Appellee’s

Motion to Dismiss Consolidated Appeals dated August

9, 2019 (“FCC’s Motion to Dismiss”), p. 9.

The impact that will be felt by the lower courts’

endorsement of mandatory appeal waivers will be both

immediate and widespread throughout the thousands

of MDL proceedings surging through the federal judicial system. With the precedent having been successfully established, it is difficult to fathom why any

district court would not be enticed to enter identical

pre-trial orders effectively relegating the potentially

contentious and time-consuming common-benefit fee

allocation process to a small group of hand-picked attorneys, all of whom can be expected to endorse the directive. Those lawyers who harbor distrust of the

committee members will be left with only two choices:

either acquiesce to their unrestrained authority or

forego any prospect for a common-benefit recovery.

This judicially imposed Hobbesian choice is particularly unfair to those firms, like Petitioner ALO, that pioneer a particular category of mass tort claims and

depend upon an anticipated common-benefit recovery

to justify the substantial risks that were undertaken.

19

Given both the number of prominent law firms possessing an interest in the outcome of this appeal as

well as the $550 million fund at stake, careful consideration should be afforded as to the disruptive precedent that will be established.

B. THE IMPLIED FORFEITURE THEORY

Respondent FCC has steadfastly advocated an

implied-forfeiture theory to justify binding nonmember firms to appeal-waiver orders that they never

explicitly approved. But the authorities that have been

offered in support of this unprecedented position all involved litigants expressly consenting, either in writing,

in open court, or both, to advantageous arrangements

that included an unambiguous waiver of the right to

appellate review. MACTEC, Inc. v. Gorelick, 427 F.3d

821 (10th Cir. 2005) (arbitration agreement); In re

Lybarger, 793 F.2d 136 (6th Cir. 1986) (settlement

agreement); Brown v. Gillette Co., 723 F.2d 192 (1st Cir.

1983) (settlement agreement); Goodsell v. Shea, 651

F.2d 765 (C.C.P.A. 1981) (stipulation effectively dismissing appeal preemptively); Slattery v. Ancient Order of Hibernians in Am., Inc., No. 97-7173, 1998 WL

135601 (D.C. Cir. Feb. 9, 1998) (settlement agreement);

Ziyad Mini Mkt. v. United States, 302 F. Supp. 2d 124

(W.D.N.Y. 2003) (stipulated settlement). The FCC has

yet to cite any authority that holds that valuable appeal rights may be lost through mere silence or acquiescence.

20

Here, the District Court’s appeal forfeiture directives were expressly approved by some—but not all—

of the attorneys performing common-benefit work. As

previously observed, Attorney Anderson’s electronic

signature only appears on the orders entered in the

two smallest MDLs, which have been closed without

meaningful common-benefit recoveries and are not a

part of this appeal. Cook, Doc#:43, Pretrial Order#:11,

p. 14; PageID#:580; Neomedic, Doc#:78, Pretrial Order#:20, p. 16; PageID#:514. And while the FCC has asserted that “the Court-appointed steering committee

for the Plaintiffs (which includes the Appellant) discussed and agreed that the District Court would have

final, non-appealable decision-making authority[,]” it

has cited and provided no record evidence to support

that assertion. FCC’s Motion to Dismiss, p. 9. When arguments that the forfeiture directives were not enforceable were raised below, no attempt was made to

demonstrate through admissible proof that ALO had

entered some sort of binding verbal agreement. Doc#:

8465, FCC’s Response to Motion to Partially Alter,

Amend, or Reconsider Judgment; PageID#:205916.

There is thus no logical correlation between the District Court’s “take-it-or-lose-it” appeal-forfeiture directive and civil actions involving voluntarily entered

settlements and arbitration agreements.

The FCC’s heavy reliance upon decisions enforcing

criminal plea agreements is even more misplaced.

FCC’s Motion to Dismiss, p. 11. Such arrangements are

typically entered to secure a valuable benefit, such as

the dismissal of certain charges or a favorable

21

sentencing recommendation from the prosecutor. E.g.,

United States v. Johnson, 410 F.3d 137, 143 (4th Cir.

2005); United States v. Davis, 689 F.3d 349, 351-52 (4th

Cir. 2012). In contrast to ALO’s situation, the defendant can always decline the plea offers and retain all of

the rights furnished to the accused, including an opportunity for appellate review.

ALO was provided no such protection. Here,

“Participating Counsel” could only seek payment for

common-benefit services already provided and yet to

be provided by forfeiting the right to appeal. Doc#:282,

Pretrial Order#:18, pp. 5-6; PageID#:3886-87. Although

the FCC has compared ALO to a “criminal defendant

arguing that an appellate waiver made in a plea agreement should be disregarded because the sentence later

imposed was unexpectedly harsh,” this analogy is inapt. FCC’s Motion to Dismiss, p. 11. ALO is far more

like a criminal defendant arguing that the post-waiver

proceedings have violated his constitutional rights or

that his sentence exceeds the statutory maximum—

both arguments that have been accepted as good reason to permit an appeal. See Johnson, 410 F.3d at 151,

quoting United States v. Attar, 38 F.3d 727, 732 (4th

Cir. 1994) (“Nor can a defendant ‘fairly be said to have

waived his right to appeal his sentence on the ground

that the proceedings following entry of the guilty plea

were conducted in violation of his Sixth Amendment

right to counsel, for a defendant’s agreement to waive

appellate review of his sentence is implicitly conditioned on the assumption that the proceedings following entry of the plea will be conducted in accordance

22

with constitutional limitations.’ ”); United States v.

Bushert, 997 F.2d 1343, 1350-51 n. 18 (11th Cir. 1993).

At most, Respondent FCC can only establish an

express waiver in just two of the MDLs, both of which

have terminated and neither of which has been

included in this appeal. Cook, S.D.W. Va. Case No. 2:14md-02440; Neomedic, S.D.W. Va. Case No. 2:14-md02511; Anderson Law Offices v. Common Benefit Fee

and Cost Committee, 4th Cir. Case Nos. 19-1856, 191857. In literally hundreds of Pretrial Orders and

Decisions that were issued over the course of approximately seven years, the District Court continually

maintained the separate identities of each of the seven

MDLs. They were consolidated strictly for purposes of

administrative and procedural convenience. And the

five percent assessments were required to be deposited

in separate accounts for each of the MDLs. See

Doc#:1754, Pretrial Order#:201; PageID#:21921; Doc#:

8453, Pretrial Order#:342, p. 2; PageID#:205790, App.

12. There is thus no justification for the notion that accepting an appeal waiver in one MDL somehow applied

to all of them.

C. THE LACK OF VALID CONSIDERATION

The lack of truly voluntary consent aside, a second

justification had been raised but never explicitly resolved in the proceedings below. Federal courts have

long recognized that appeal waiver agreements are

governed by contract-law principles. Goodsell, 651 F.2d

at 767-68; Averitt v. Southland Motor Inn of Oklahoma,

23

720 F.2d 1178, 1180-81 (10th Cir. 1983); United States

v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United

States v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010).

These arrangements are enforceable provided they are

supported by sufficient consideration. In re Lupron

Mktg. & Sales Practices Litig., 677 F.3d 21, 31 (1st Cir.

2012); Gramling v. Food Mach. & Chem. Corp., 151

F. Supp. 853, 856 (W.D.S.C. 1957); United States v.

Reap, 391 F. App’x 99, 101-102 (2d Cir. 2010); United

States v. Lutchman, 910 F.3d 33, 37 (2d Cir. 2018).

All Petitioner ALO “received” in exchange for its

purported waiver of appeal rights was the ability to

seek payment as “Participating Counsel” for the

common-benefit work to which the firm was already

entitled to be paid under principles of equity. See Brundle on behalf of Constellis Employee Stock Ownership

Plan v. Wilmington Tr., N.A., 919 F.3d 763, 785-86 (4th

Cir. 2019). This right is based squarely upon the doctrine of unjust enrichment, which precludes beneficiaries of an attorney’s work from avoiding payment for

those services rendered. Mills, 396 U.S. at 391-92; Boeing Co., 444 U.S. at 478. ALO had already devoted thousands of hours to the New Jersey consolidated TVM

proceedings when the “take-it-or-lose-it” orders were

issued. Anderson Aff., p. 14, ¶ 5(p)(4). In stark contrast

to litigants freely entering appeal waivers as part of

civil settlements or criminal plea agreements, ALO received nothing additional beyond that which was already available in equity.

Respondent FCC has responded to this reality

with the rationalization that avoiding “the potential

24

for expensive and prolonged disputes” constitutes sufficient consideration. FCC’s Motion to Dismiss, p. 9. The

FCC member firms and their allies were obviously

eager to establish a quick and unquestionable feeallocation process when the appeal forfeiture orders

were approved. But there is nothing in the record indicating that ALO shared their disdain for appellate review. In light of the FCC’s undeserved thirty-percent

reduction of the common-benefit time submitted by

ALO and the effective hourly rate of $342.64 produced,

which is disproportionately lower than any FCC

member-firm’s hourly rate, ALO will be far worse off if

the appeal forfeiture is enforced.

The absence of consideration is inherent in any judicial order that requires parties to waive their appeal

rights before a court will consider awarding relief that

is already provided at law or in equity. In that situation, the parties receive nothing of value in return for

the waiver beyond that which they were already entitled to, and are left without recourse for any errors or

omissions that the court later commits. For this reason

alone, such unsettling judicial directives should not be

permitted.

D. THE PROPER SCOPE OF THE FORFEITURE PROVISIONS

Even if the District Court’s appeal forfeiture orders are found to be enforceable, this Court should give

careful consideration to their correct interpretation.

When properly entered, such agreements are typically

25

afforded a strict construction by the courts. See United

States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001);

United States v. Hernandez, 242 F.3d 110, 113 (2d Cir.

2001). And an appeal-waiver provision “only precludes

appeals that fall within its scope,” which is “simply a

matter of what the parties agreed to in the particular

case.” United States v. McCoy, 508 F.3d 74, 77 (1st Cir.

2007).

Assuming for the sake of argument that the appeal waiver terms are valid, the “Participating Counsel” eligible to apply for common-benefit compensation

acknowledged only that the District Court would possess “final, non-appealable authority regarding the

award of fees, the allocation of those fees and awards

for cost reimbursements in this matter.” Doc#:282,

Pretrial Order#:18, pp. 5-6; PageID#:3886-87. The directive repeats this language in a slightly different

form and concludes: “Participating Counsel knowingly

and expressly waive any right to appeal those decisions or the ability to assert the lack of enforceability

of this Agreed Order or to otherwise challenge its adequacy.” Id. The waiver is thus confined to the actual

amounts of the awards and the disbursements accepted by the Court; explicitly, the waiver does not

reach the procedure employed to render the allocations. If the opportunity had been afforded, Petitioner

ALO’s appeal would have focused precisely upon these

questions of whether the remainder of PTO#:18 and

the other applicable orders were satisfied when the

FCC and ERS abandoned the objective fee-calculation

process utilizing the lodestar/multiplier method and

26

adopted instead a purely subjective percentage-of-thefunds approach that richly rewarded its own members

and a few favored firms.

It should go without saying that only a knowing

and voluntary waiver of the constitutional right to due

process will be enforced by the courts. Walls v. Cent.

Contra Costa Transit Auth., 653 F.3d 963, 969-70 (9th

Cir. 2011); Morrison v. Warren, 375 F.3d 468, 474 (6th

Cir. 2004); Rivera v. Marcus, 696 F.2d 1016, 1026 (2d

Cir. 1982); Turner v. Blackburn, 389 F. Supp. 1250,

1260 (W.D.N.C. 1975); Davis, 689 F.3d at 354-55. There

is no language in PTO#:18, nor in any other applicable

court order, that even remotely suggests that ALO specifically forfeited its right to appeal from due process

violations. The District Court’s readily apparent intention was that the amount and allocation of the “award

of fees” could not be appealed. Under the language

adopted, however, no party was waiving or abandoning

the basic rights to a full and fair judicial process. See

Johnson, 410 F.3d at 151; Attar, 38 F.3d at 732. At a

minimum, Petitioner ALO should be permitted to seek

review of whether the District Court complied with its

earlier orders as well as rudimentary principles of due

process.

II.

THIS DISPUTE PRESENTS A LIVE CASE

AND CONTROVERSY

The present dispute remains a live one. “Article III

of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ ” Already,

27

LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). Generally,

“those who invoke the power of a federal court” must

“demonstrate standing—a ‘personal injury fairly traceable to the defendant’s allegedly unlawful conduct and

likely to be redressed by the requested relief.’ ” Id.,

quoting Allen v. Wright, 468 U.S. 737, 751 (1984). “[A]n

actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”

Steffel v. Thompson, 415 U.S. 452, 459 n. 10 (1974).

Although tens of millions of dollars has been paid

out, the Common Benefit Fund continues to grow. The

District Court has ordered that seventy-percent of future assessments must be dispersed on a quarterly basis while the remaining thirty-percent shall be “be

held in the common-benefit fund for a final evaluation

of common-benefit compensation until a further order

of the court.” Doc#:8453, Pretrial Order#:342, p. 6;

PageID#: 205795, App. 17-18. The next disbursement

will occur on or before January 15, 2020. Id. The controversy as to these funds thrives, and the amounts

assessed are significant enough to provide for a meaningful remedy if this Court grants the writ.

------------------------------------------------------------------

28

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

PAUL W. FLOWERS, ESQ.

Counsel of Record

LOUIS E. GRUBE, ESQ.

PAUL W. FLOWERS CO., L.P.A.

50 Public Square, Suite 1910

Cleveland, Ohio 44113

(216) 344-9393

pwf@pwfco.com

leg@pwfco.com