Petition for Writ of Certiorari — Mazie Slater Katz & Freeman, LLC, Petitioner v. Common Benefit Fee and Cost Committee

Supreme Court briefFeb 3, 2020

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No. 19IN THE

Supreme Court of the United States

MAZIE SLATER KATZ & FREEMAN, LLC,

Petitioner,

COMMON BENEFIT FEE AND COST COMMITTEE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ADAM M. SLATER

MAZIE SLATER KATZ

& FREEMAN, LLC

103 Eisenhower Pkwy.

Suite 207

Roseland, NJ 07068

Tel. (973) 228-9898

aslater@mazieslater.com

JONATHAN S. MASSEY

Counsel of Record

MASSEY & GAIL LLP

1000 Maine Ave. SW

Suite 450

Washington, DC 20024

Tel. (202) 652-4511

jmassey@masseygail.com

February 3, 2020

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

QUESTION PRESENTED

A personal injury multi-district litigation

(“MDL”) in federal court generated an estimated

$550 million for a “common-benefit fund” to pay

plaintiff attorneys’ fees and expenses, in addition to

the fees already earned on their own cases. Some 94

plaintiff law firms filed applications seeking an

equitable apportionment of the fund. The District

Court ordered all appellate rights waived, and the

allocation decisions were made by the Common

Benefit Fee and Cost Committee (“FCC”), composed

of eight attorney representatives of the applicant law

firms and a retired state-court judge, all appointed

by the District Court with no notice. Predictably,

the FCC’s members awarded themselves nearly twothirds of the fund, while refusing to disclose to nonmember firms the time entries and expense

documentation

purportedly

justifying

the

extraordinary allocation.

The District Court

permitted no discovery, held no evidentiary hearing,

and in a conclusory six-page opinion approved the

FCC’s admitted self-dealing while summarily

rejecting the objections with no fact finding or

analysis. The Fourth Circuit dismissed Petitioner’s

appeal in a single-sentence decision with no

explanation.

The question presented is: Whether federal

courts must implement a process that comports with

due process to determine the fee and expense

allocation of common-benefit funds in multidistrict

litigation and other mass actions, to ensure that the

decisions are transparent, legally valid, and fair and

reasonable, particularly when they are based upon

recommendations made by court-appointed fee

committees composed of self-interested plaintiffs’

lawyers with severe conflicts of interest because they

stand to receive the fees and expenses at issue.

PARTIES TO THE PROCEEDING

The parties to the proceeding are listed in the

caption of the Petition.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Petitioner states that it

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. Petition for Writ

of Certiorari pending in this Court as No. 19-791.

Bernstein Liebhard LLP v. Common Benefit

Fee and Cost Committee, No. 19-1892, United States

Court of Appeals for the Fourth Circuit. Judgment

Entered Sept. 23, 2019.

Kline & Specter, P.C. v. Common Benefit Fee

and Cost Committee, No. 19-1224(L), United States

Court of Appeals for the Fourth Circuit. Dismissed

June 14, 2019, rehearing and rehearing en banc

denied July 15, 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. 2:12ii

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 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.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEDURE ............................ ii

CORPORATE DISCLOSURE STATEMENT ........... ii

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

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

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ...........................1

STATEMENT OF THE CASE ....................................2

Background of the MDL System ...........3

Background of the Pelvic Mesh

MDL .......................................................6

The Extensive Benefits Bestowed

By Petitioner on the MDL .....................7

The Decisions In This Case .................13

REASONS FOR GRANTING THE PETITION .......15

The Fourth Circuit’s Decision

Conflicts With Precedent in the

First, Third, and Fifth Circuits. ..........17

II.

The Question Presented Is An

Important Question Of Federal

Law. ......................................................23

III.

This Case Is An Appropriate

Vehicle To Review The Question

Presented. ............................................31

CONCLUSION ..........................................................35

Appendix A: United States Court of Appeals

for the Fourth, Circuit, Dismissal

Order, dated October 9, 2019 .........................1a

Appendix B: United States District Court for

the Southern District of West Virginia,

Memorandum Opinion, and Order,

dated July 25, 2019 ........................................6a

Appendix C: United States Court of Appeals

for the Fourth, Circuit, Order Denying

Rehearing En Banc, dated November 5,

2019 ...............................................................14a

Appendix D: Recommended Allocation of the

External Review Specialist, dated

March 11, 2019 .............................................19a

Appendix E: Final Written Recommendation

of the Common Benefit Fee and Cost

Committee ....................................................62a

Appendix F: CA4 No. 19-1943, Dkt. 11,

Exhibit 6 .....................................................171a

Appendix G: CA4 No. 19-1943, Dkt. 11,

Exhibit 7 .....................................................178a

Appendix H: CA4 No. 19-1943, Dkt. 11,

Exhibit 4 .....................................................182a

Appendix I: CA4 No. 19-1943, Dkt. 11, Exhibit

5 ...................................................................183a

TABLE OF AUTHORITIES

CASES:

Alyeska Pipeline Serv. Co. v. Wilderness Society,

421 U.S. 240 (1975) ........................................27

Boeing Co. v. Van Gemert,

444 U.S. 472 (1980) ........................................27

Comm’r v. McCoy,

484 U.S. 3 (1987) ............................................31

Frank v. Gaos,

No. 17-961, 2018 WL 3456069

(argued Oct. 31, 2018) ................................2, 30

Fuentes v. Shevin,

407 U.S. 67 (1972) ..........................................34

Gelboim v. Bank of America Corp.,

574 U.S. 405, 135 S.Ct. 897 (2015) .............. 3-4

Gross v. Gynecare,

2016 WL 1192556 (N.J. App. Div.

Mar. 29, 2016), cert. denied,

228 N.J. 430 (2016)...........................................8

Holster v. Gatco, Inc.,

130 S. Ct. 1575 (2010) ......................................8

In re Air Crash Disaster at Florida Everglades,

549 F.2d 1005 (5th Cir. 1977) .......................22

In re Avandia Mktg., Sales Practices &

Products Liab. Litig.,

2012 WL 6923367 (E.D. Pa. Oct. 19, 2012) ...23

In re Bausch & Lomb Contact Lens Solution

Prods. Liab. Litig.,

2008 WL 2330571 (D.S.C. May 21, 2008) ......23

In re Baycol Prods. Liab. Litig.,

2002 WL 32155266 (D. Minn. 2002) ..............23

In re Bextra & Celebrex Mktg. Sales Practices

& Prods. Liab. Litig.,

2006 WL 471782 (N.D. Cal. 2006) .................23

In Re: Chinese-Manufactured Drywall Products

Liability Litigation, No. 19-30187

(5th Cir. May 21, 2019) ..................................34

In re Clearsky Shipping Corp.,

2003 WL 1563820 (E.D. La. 2003) .................23

In re Diet Drugs (Phentermine/Fenfluramine/

Dexfenfluramine) Prods. Liab. Litig.,

582 F.3d 524 (3d Cir. 2009) .................. 5, 19, 20

In re Diet Drugs Prods. Liab. Litig.,

553 F.Supp.2d 442 (E.D. Pa. 2008) ................23

In re Fosamax Prods. Liab. Litig.,

MDL 1789, CMO 17 ¶ 3(f)(3),

(S.D.N.Y. Apr. 28, 2011) .................................24

vii

In re Gel Breast Implants Prods. Liab. Litig.,

MDL 926, Pretrial Order No. 13

(N.D. Ala. 1993) and Pretrial Order

No. 13A (N.D. Ala. 1999) ................................23

In re High Sulfur Content Gasoline Prods.,

517 F.3d 220 (5th Cir. 2008) ....................20, 21

In re Kugel Mesh Hernia Patch Products Liability

Litig., No. 1:07-md-01842-ML-LDA,

MDL No 07-1842 (D.R.I. Nov. 19, 2009) ........23

In re Nineteen Appeals Arising Out Of The San

Juan Dupont Plaza Hotel Fire Litigation,

982 F.2d 603 (1st Cir. 1992) .....................17, 18

In re Oil Spill by the Oil Rig DEEPWATER

HORIZON in the Gulf of Mexico,

on April 20, 2010,

2011 WL 6817982 (E.D.La. Dec. 28, 2011) ....24

In re Oral Sodium Phosphate Solution-Based

Prods. Liab. Action, MDL 2066, Order

Regarding Common Benefit Fees and

Expenses (N.D.Ohio, Aug. 2, 2010)................24

In re Propulsid Prods. Liab. Litig.,

2001 WL 34134864 (E.D. La. 2001) ...............23

In re St. Jude Med. Inc., Sitzone Heart Valves

Prods. Liab. Litig.,

2002 WL 1774232 (D. Minn. 2002) ................23

viii

In re Syngenta Mass Tort Actions,

2019 WL 3887515

(S.D. Ill. Aug. 19, 2019) ........................ 7, 16, 26

In re Vioxx Prods. Liab. Litig.,

MDL 1657, Pretrial Order No. 19

(E.D. La. 2005) ................................................23

In re Volkswagen “Clean Diesel” Marketing,

Sales Practices, and Products Liab. Litig.,

895 F.3d 597 (9th Cir. 2018) ..........................27

In re Yasmin & Yaz (Drospirenone) Mktg., Sales

Practices & Prods. Liab. Litig., MDL 2011,

2010 U.S. Dist. LEXIS 22361

(S.D.Ill. Mar. 8, 2010) .....................................23

In re Zyprexa Prods. Liab. Litig.,

424 F.Supp.2d 488 (E.D.N.Y 2006),

2007 WL 2340789 (E.D.N.Y. 2007) ................23

Lexecon Inc. v. Milberg Weiss Bershad Hynes

& Lerach, 523 U.S. 26 (1998) .....................4, 28

Lynce v. Mathis,

519 U.S. 433 (1997) ........................................31

Marek v. Lane,

134 S. Ct. 8 (2013) ................................ 2, 24, 25

Peter v. Nantkwest, Inc.,

140 S.Ct. 365 (2019) .......................................28

Wilkins v. Gaddy,

559 U.S. 34 (2010) ..........................................31

Yamada v. Nobel Biocare Holding AG,

825 F.3d 536 (9th Cir. 2016) ..........................18

STATUTES:

28 U.S.C. § 1407(a)............................. 1,-2, 3, 4, 27, 28

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

OTHER AUTHORITIES:

32 Mass. L. Rptr. 304 (Sup. Ct. 2014) ........................8

Duke Law School, Center for Judicial Studies,

MDL Standards and Best Practices xi

(2014) ..........................................................5, 30

Hon. Eldon E. Fallon, Common Benefit Fees

in Multidistrict Litigation, 74 La. L.

Rev. 371 (2014) ...............................................29

H.R. Rep. No. 1130, 90th Cong.,

2d Sess. (1968) ..................................................4

J. Maria Glover, “Mass Litigation Governance

in the Post-Class Action Era: The

Problems and Promise of NonRemovable State Actions in MultiDistrict Litigation,” 5 J. Tort. L. 1

(2014) ................................................................4

Manual for Complex Litigation § 14.231

(4th ed. 2004) ............................................28, 29

Manual for Complex Litigation § 20.131

(4th ed. 2004) ....................................................4

No. 14-786, Phipps Group v. Downing,

cert. denied, Feb. 20. 2015 .............................32

No. 15-703, Bass v. Authors Guild, Inc.,

cert. denied, April 18, 2016 ............................32

No. 15-704, Girardi Keese Law Firm v. Plaintiffs’

Advisory Committee, cert denied,

Feb. 29, 2016...................................................32

No. 16-804, Law Offices of Steven M. Johnson, P.C.

v. Plaintiffs’ Advisory Committee,

cert. denied, Feb. 21, 2017 .............................32

No. 18-301, Chieftain Royalty Co. v. Nutley,

cert. denied, Nov. 13, 2018 .............................32

Martin H. Redish & Julie M. Karaba, “One

Size Doesn’t Fit All: Multidistrict

Litigation, Due Process, and the

Dangers of Procedural Collectivism,” 95

B.U. L. Rev. 109 (2015) ....................................5

Barbara J. Rothstein & Catherine R. Borden,

Federal Judicial Center, Managing

Multidistrict Litigation in Products

Liability Cases: A Pocket Guide for

Transferee Judges (2011) ...............................29

OPINIONS BELOW

The order of the United States Court of

Appeals for the Fourth Circuit dismissing

Petitioner’s appeal (Pet. App. 1a-5a) was issued on

October 9, 2019 and is 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’s common-benefit fee

allocations (id. at 6a-13a) was issued on July 25,

2019 and is unpublished.

JURISDICTION

The Fourth Circuit denied Petitioner’s timely

petition for rehearing en banc on November 5, 2019.

Pet. App. 14a-18a. This Court has jurisdiction under

28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

Title 28 United States Code, Section 1407,

provides, in relevant part:

When civil actions involving one or

more common questions of fact are

pending in different districts, such

actions may be transferred to any

district for coordinated or consolidated

pretrial proceedings. Such transfers

shall be made by the judicial panel on

multidistrict litigation authorized by

this section upon its determination that

transfers for such proceedings will be

for the convenience of parties and

witnesses and will promote the just and

efficient conduct of such actions. Each

action so transferred shall be remanded

by the panel at or before the conclusion

of such pretrial proceedings to the

district from which it was transferred

unless it shall have been previously

terminated. Provided, however, that

the panel may separate any claim,

cross-claim, counterclaim, or thirdparty claim and remand any of such

claims before the remainder of the

action is remanded.

28 U.S.C. 1407(a).

STATEMENT OF THE CASE

This petition presents an important issue of

federal law that is the subject of a circuit split and

raises key concerns about the integrity of procedures

implemented by the federal judiciary: Whether

federal judges, when allocating so-called “commonbenefit” attorney’s fees and expenses in multidistrict litigation proceedings (MDLs), must adopt

procedures that guarantee due process; ensure that

allocation

decisions

are

transparent,

jurisprudentially sound, fair, and reasonable; closely

scrutinize the recommendations of court-appointed

plaintiffs’ fee committees; and provide for

independent judicial fact-finding.

The concerns

about the integrity of the judicial process in this

context are similar to the concerns expressed by the

Chief Justice, Justice Alito, Justice Kavanaugh, and

other Justices regarding cy pres awards in Marek v.

Lane, 134 S. Ct. 8 (2013) (opinion of Roberts, C.J.,

respecting the denial of certiorari), and Frank v.

Gaos, No. 17-961.

In this case, the District and Circuit Courts

abdicated their responsibilities. The Fourth Circuit

dismissed Petitioner’s appeal and denied any

appellate review of a District Court order rubberstamping an estimated $550 million fee award by

the court-appointed Common Benefit Fee and Cost

Committee (“FCC”), consisting of eight attorney

representatives of the applicant law firms and a

retired state-court judge. Predictably, the committee

members awarded themselves nearly two-thirds

(59%) of the funds, while refusing to disclose to

competing fee applicants the time entries, expense

documentation, and other documents purportedly

justifying the one-sided allocation. The District

Court had imposed an appellate waiver in the order

structuring the common-benefit process, permitted

no discovery, held no evidentiary hearing, and in a

conclusory six-page opinion approved the FCC’s

apparent

self-dealing

without

meaningfully

addressing any of the objections. This startling lack

of due process and extraordinary result is contrary to

decisions in the First, Third, and Fifth Circuits,

where precedent requires searching judicial review

of MDL and other mass action common-benefit fee

awards.

The question presented involves an

important issue of federal law as to which this

Court’s plenary review is amply warranted.

Background of the MDL System

In 1968, Congress created the United States

Judicial Panel on Multidistrict Litigation, which has

the power to transfer civil actions “pending in

different districts” to a single federal district court

for coordinated or consolidated pretrial proceedings

when doing so “will be for the convenience of parties

and witnesses and will promote the just and efficient

conduct of such actions.” 28 U.S.C. § 1407(a). See

Gelboim v. Bank of America Corp., 574 U.S. 405, 135

S.Ct. 897, 903 (2015) (citing H.R. Rep. No. 1130,

90th Cong., 2d Sess., 2 (1968)). Transfer under

§ 1407 aims to “eliminate duplication in discovery,

avoid conflicting rulings and schedules, reduce

litigation cost, and save the time and effort of the

parties, the attorneys, the witnesses, and the

courts.” Manual for Complex Litigation § 20.131

(4th ed. 2004). Although the MDL process plays a

useful role in facilitating the management and

disposition of related actions filed in various federal

courts, particularly mass torts and other complex

cases, this Court has established important limits to

MDL power and has made clear it is a purely

procedural tool. See Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26 (1998) (federal

district court conducting pretrial proceedings

pursuant to multidistrict litigation statute has no

authority to invoke change-of-venue statute to

assign transferred case to itself for trial).

MDLs represent an important category of

federal civil litigation. There are currently 190

MDLs pending in the federal district courts,

encompassing 497,802 total actions.1 The decline of

class actions has “put increasing pressure on other

mechanisms of aggregation,” and “the most

prominent … is federal multi-district litigation.”2

“The emergence of the MDL process … has made it

the preferred procedural vehicle to dispose of mass

Available at https://www.jpml.uscourts.gov/ pending-

mdls-0.

2 J. Maria Glover, “Mass Litigation Governance in the

Post-Class Action Era: The Problems and Promise of NonRemovable State Actions in Multi-District Litigation,” 5 J. Tort.

L. 1, 2-3 (2014).

torts.”3 Estimates suggest that one-third of all

pending federal civil cases are part of an MDL.4

MDL transferee courts exercise broad casemanagement powers with respect to the federal

cases before them. For example, MDL transferee

courts frequently appoint a group of lawyers to serve

as a “steering” committee or as coordinating counsel

for a particular group of parties before it.5

MDL courts also frequently enter orders

creating “common-benefit funds” to pay attorney fees

and expenses for work performed for the benefit of

all MDL plaintiffs. Those orders typically operate by

imposing an assessment or tax (5% here) on all

settlements or judgments obtained by firms with

plaintiffs in the MDL, so that a portion of each

individual plaintiff’s recovery is taken away from the

plaintiff (and that plaintiff’s counsel) and deposited

in the “common-benefit fund,” to be allocated at a

later date by the court according to its assessment of

the benefits conferred by various law firms on the

population of MDL plaintiffs.

Common-benefit

assessments also often extend to state court

settlements and judgments obtained by law firms

3 Duke Law School, Center for Judicial Studies, MDL

Standards and Best Practices xi (2014) (hereafter, “Duke Law

School, Best Practices”).

See Martin H. Redish & Julie M. Karaba, “One Size

Doesn’t Fit All: Multidistrict Litigation, Due Process, and the

Dangers of Procedural Collectivism,” 95 B.U. L. Rev. 109, 118

& n. 57 (2015); Duke Law School, Best Practices, supra note 3,

at x (“In 2014, these MDL cases made up 36% of the civil case

load [in federal courts]. In 2002, that number was 16%.”).

See, e.g., In re Diet Drugs (Phentermine/

Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., 582 F.3d

524, 547 (3d Cir. 2009).

representing plaintiffs in the federal MDL, even

though the state-court proceedings are not part of

the federal MDL. The federal MDL court thus

leverages its power over the plaintiffs firms before it

in the federal proceeding to assess a portion of their

recoveries in state-court actions as well.

“Common-benefit” fee awards to plaintiff law

firms can amount to tens of millions of dollars and in

some cases, as here, hundreds of millions of dollars.

Accordingly, they present an enormously lucrative

opportunity for plaintiffs’ lawyers.

Small

groups

plaintiffs’

attorneys

sometimes turn MDLs into a cottage industry,

awarding themselves astronomical attorneys’ fees to

be paid by parties other than their clients. Fee

committee members sometimes contribute little in

the way of actually trying cases or winning jury

verdicts, but may nevertheless succeed in lobbying

federal courts to appoint them to well-paid roles in

the MDL. In effect, they ask the MDL court to

award them millions of dollars in attorney’s fees as a

result of their favored appointments, to be paid by

someone else, via multi-million-dollar commonbenefit fee-shifting orders.

Background of the Pelvic Mesh MDL

This petition arises from the consolidation of

seven product liability MDLs in the Southern

District of West Virginia (the Hon. Joseph Goodwin)

involving pelvic organ prolapse and stress urinary

incontinence repair devices (“pelvic mesh” devices).

The pelvic mesh MDL grew to include more than

104,800 cases naming seven mesh manufacturer

defendants, representing the largest product liability

MDL in United States history. Pet. App. 23a. The

defendants have spent more than $7 billion to date

to resolve pelvic mesh cases.

The District Court entered orders establishing

a five percent (5%) assessment upon the gross

monetary recovery in every pelvic mesh case to

create a common-benefit fund. Id. at 26a. The first

tranche of this fund includes more than $350

million, and according to estimates the overall fund

will likely grow to exceed $550 million.

To distribute this fund, the District Court

entered an order on January 15, 2016 appointing

nine individuals to serve as a Common Benefit Fee

and Cost Committee (“FCC”). Id. at 26a-27a. The

committee is composed of eight plaintiffs’ lawyers,

and one powerless non-attorney. Daniel J. Stack, a

retired

Missouri

state-court

judge

whose

contemporaneous

common-benefit

fee

recommendations in another MDL have been

sharply criticized by the Chief Judge of the Southern

District of Illinois, was appointed to effectively

participate as a member of the FCC as “external

review specialist.” In In re Syngenta Mass Tort

Actions, 2019 WL 3887515 (S.D. Ill. Aug. 19, 2019),

the Court invalidated and reduced by tens of

millions of dollars a proposed allocation by Judge

Stack awarding disproportionate sums to a lawyer

(Clayton Clark) who was also one of the leaders of

the pelvic mesh FCC.

The Extensive Benefits Bestowed By

Petitioner on the MDL

Petitioner (the Mazie Slater firm) filed the

first pelvic mesh case in the United States against

Ethicon/Johnson & Johnson (collectively “J&J”) in

New Jersey state court in March 2008 and tried the

first pelvic mesh case in the country against J&J, in

New Jersey state court in January and February,

2013. (CA4 No. 19-1943, Dkt. 11, at 1.) The trial

resulted in an $11.1 million verdict, including $7.76

million in punitive damages, which was affirmed on

appeal. Gross v. Gynecare, 2016 WL 1192556 (N.J.

App. Div. Mar. 29, 2016), cert. denied, 228 N.J. 430

(2016). Mazie Slater subsequently obtained pelvic

mesh verdicts against J&J of $12.5 million and $15

million, and against C.R. Bard for $68 million, and

settled numerous other pelvic mesh cases around the

United States during trial and on the eve of trial.

(CA4 No. 19-1943, Dkt. 11, at 1 & n.1.)

Adam Slater of Mazie Slater was appointed

co-lead counsel for the J&J and C.R. Bard

consolidated pelvic mesh litigations in New Jersey

(state-court equivalent of a federal MDL), led the

J&J litigation nationally, successfully argued

appeals including Gross, and played an instrumental

role in the overall pelvic mesh litigation. (CA4 No.

19-1943, Dkt. 11, at 1-2.) For example, Mr. Slater:

● compelled and conducted the depositions of

the editors of the New England Journal of Medicine

in Massachusetts, resulting in key evidence

undermining a pelvic mesh article that was pivotal

to J&J’s defense (32 Mass. L. Rptr. 304 (Sup. Ct.

2014));

● conducted depositions of 40 corporate

witnesses, more than any other attorney in the

entire pelvic mesh litigation and almost 20% of the

total taken (CA4 No. 19-1943, Dkt. 11, at 2);

● questioned more trial witnesses (93) in

bellwether trials than any other attorney (id.); and

● tried the first J&J Prolift trial in the MDL

(Bellew v. Ethicon) in March 2015, for no fee,

establishing key testimony and evidence and

winning many important rulings that benefitted

plaintiffs across the litigation before the case settled

at the conclusion of the plaintiff’s case. (Id.)

Mazie Slater was also the first and only firm

to successfully oppose J&J’s trial motion (in both

New Jersey and Pennsylvania) to exclude evidence of

its destruction of tens of thousands of pages of

relevant documents. (Id.)

Mazie Slater was not in the MDL or a member

of the FCC. Before the District Court entered its

order appointing the FCC, Adam Slater negotiated

with Henry Garrard, the chairman of the FCC, with

regard to whether Mazie Slater would agree to pay a

common-benefit assessment on its cases and in

return receive a common-benefit allocation. (Id. at

3.) As part of that process, the New Jersey state

court judge overseeing more than 10,000

consolidated pelvic mesh cases brought against J&J

and C.R. Bard in New Jersey, spoke directly to

Judge Goodwin of the Southern District of West

Virginia. (Id.) As a result of those discussions,

Judge Goodwin directed Mr. Garrard and the FCC to

provide assurance that Mr. Slater would be given a

role in the FCC in exchange for Petitioner’s

agreement to participate in the common-benefit

assessment process. (Id.) Mr. Garrard outlined that

agreement in a February 1, 2016 email to Mr. Slater:

Adam – I discussed with the Court your

role, assuming you come into the

assessment process in the MDL. I

raised the idea of you being an adjunct

non voting member of the FCC. . . .

Below is what I was informed by the

Court.

“Regarding the involvement of Adam

Slater in the FCC, Judge Goodwin

expects that Adam will be the unofficial

New Jersey liaison and, in that role, he

will be invited frequently to participate

where appropriate. This is consistent

with the overall goal of transparency in

the

process

making

fee

recommendations

for

ultimate

consideration and decision by Judge

Goodwin.”

I hope this gives you enough comfort. If

so, I will write you the letter I told you I

would. I will be happy to discuss this, if

you want.

Henry

Pet. App. 182a. These were material terms, as Mr.

Garrard confirmed: “I hope this gives you enough

comfort.” Id.

Once Mr. Slater indicated that this agreement

was acceptable, Mr. Garrard wrote to Mr. Slater to

confirm the balance of the agreement, in a February

16, 2016 letter stating in relevant part:

I have discussed your letter of 1/21/16

that was sent to me concerning common

benefit issues with the Fee and

Compensation

Committee.

The

agreements we reached on the

telephone are affirmed by the FCC.

Specifically, we agree that the [time

and expense] records of which you have

given me samples will be acceptable

and that you do not need to reconfigure

them.

As I said on the phone, your leadership

in the New Jersey consolidated matters

is certainly a factor that will be

considered in any recommendation

concerning payment of fees and

expenses to you.

The “$100,000” that you have paid in

for the New Jersey litigation will be

reimbursed in the same manner as the

amounts that have been paid in by PSC

members in the MDL litigation.

...

Obviously, all of these agreements are

contingent on your cases coming into

the MDL and being assessed, which I

believe you have indicated to me you

intend to do.

I hope that this letter comports with

what you and I previously agreed to

and if not, please let me know.

I appreciate the working relationship

that we have established.

Pet. App. 183a-84a (emphases added).

The

agreement between Petitioner and the FCC did not

contain an appellate waiver preventing Petitioner

from seeking appellate review of the FCC’s fee and

expense allocation decision.

The FCC failed to meet its obligations under

its agreement with Petitioner. Among other things,

the FCC never invited Adam Slater to appear and to

function as an adjunct non-voting member of the

FCC or as the unofficial New Jersey liaison to the

FCC. (CA4 No. 19-1943, Dkt. 11, at 6.) Instead, the

FCC shut Mr. Slater out of the process, knowing that

he would have demanded transparency and fairness.

On March 12, 2019, the FCC issued its final

written recommendation regarding the allocation

decision in this case, awarding its member firms

nearly two-thirds (59%) of the fund, while refusing to

disclose to non-member firms the time entries and

expense documentation, or any other documents

purportedly justifying the extraordinary allocation.

This opaque procedure, untethered to any

reasonable concept of due process, transparency, or

objective measurement of fees, predictably resulted

in the five leaders of the FCC awarding themselves

$207 million of the first $350 million to be

distributed, or $41.4 million per firm.

That

amounted to 59% or nearly two-thirds of the entire

common-benefit fund. The FCC recommended a

comparatively unjustifiable fee allocation of

$6,020,000.00 (1.72% of the common-benefit fund) to

Petitioner.

The FCC failed to offer any objective

methodology to calculate or even loosely cross-check

and justify the egregious disparity in the fee awards

for fairness and reasonableness, because they could

not. In fact, a simple cross-check of the gross

effective hourly rates yielded indefensible results:

The effective hourly rates for the FCC firms

averaged some $783.02 (with the highest rates at

$913.00, $847.00, and $772.00 for FCC firms), while

non-members received average hourly rates of only

$268.22, with no explanation of the startling

discrepancy. Petitioner’s fee award translated into

facially inadequate hourly rates of $202.00 for the

29,752 hours submitted and $309.00 for the 19,482

hours accepted by the FCC (after arbitrarily

invalidating 10,000 hours). Neither the District

Court nor the Fourth Circuit acknowledged any of

these objective measures or attempted to explain the

disparities.

The Decisions In This Case

The

court-appointed

“external

review

specialist,” former Judge Daniel Stack, reviewed the

FCC’s common-benefit allocation process and

submitted recommendations to the District Court.

Judge Stack made only minor adjustments to the

FCC’s proposal after clearing them with the FCC,

even though he recognized that “[i]n some instances,

certain members of Plaintiffs’ Leadership did limited

work, and in some instances, no substantive work

contributing to the common benefit of the litigation

at all.” Pet. App. 46a. Judge Stack repeatedly

stated that the allocation decisions were “subjective”

in nature (id. at 39a, 40a, 41a, 48a) and asserted

that “it is not the FCC’s or my obligation to

demonstrate why any particular time submission

was not considered for the common benefit.” Id. at

38a (emphasis in original).

Judge Stack stated that he received the

materials submitted by Petitioner as part of its

objection to the FCC’s proposed allocation decision.

Id. at 51a. Yet Judge Stack made no mention of the

FCC’s agreement with Petitioner, the massive

contributions by Petitioner, or the merits of the

objections. He recommended no change in the FCC’s

proposal regarding Petitioner.

Judge Stack admitted his lack of objectivity.

He told Petitioner that he was not acting as a

neutral in the process. Id. at 174a. Rather, he said

he was acting on behalf of the fee committee. Id.

Accordingly, he would not recommend an increase to

the fees or expenses that the fee committee had

awarded to any firm, unless the fee committee were

to first approve and agree to pay that amount. Id.

Judge Stack described the fee-award process

as a “nightmare,” disclosing to Petitioner that the

FCC had added more than 9,000 hours to the

submission of one of its members, Riley Burnett, and

awarded another attorney more than $4 million in

fees despite his failure to make any submission of

billable time. Id. at 173a-77a. Judge Stack stated

that another FCC firm claimed large numbers of

hours to re-review documents that had already been

reviewed. Id. at 175a. Judge Stack cited FCC

member Motley Rice as an example of a law firm

that had “padded” its time submissions with

thousands of empty hours to re-review documents,

commenting that they do this “in every litigation.”

Id. Yet Judge Stack rubber-stamped the FCC’s

award of $49 million in fees to that law firm. Judge

Stack said that he “was sickened” and “very angry”

that another FCC firm had pressured FCC chairman

Henry Garrard for $10 million in additional fees,

threatening that otherwise it would refuse to sign

the FCC’s preliminary written recommendation for

the common-benefit allocation. Id. at 174a-75a. Yet

Judge Stack declined to alter the relevant portion of

the FCC’s recommendation.

The District Court denied all objections to

Judge Stack’s recommendations, with no analysis or

fact-finding. It permitted no discovery, held no

evidentiary hearing, and failed to address

meaningfully Petitioner’s objections or indeed any of

the objections to the FCC’s decision. The District

Court did not acknowledge or attempt to rationalize

Petitioner’s pioneering role in the pelvic mesh

litigation and the enormous benefits it conferred on

other plaintiffs. Nor did the District Court address

the FCC’s brazen failure to follow the District

Court’s own directive to involve Petitioner on a

substantive level in the process.

Instead, the

District Court summarily stated: “Having considered

each of their objections, I find that they are entirely

without merit. All of the remaining objections are

DENIED.” Pet. App. 11a.

The Fourth Circuit dismissed Petitioner’s

appeal in a single-sentence decision with no

explanation or opportunity for oral argument: “Upon

review of submissions relative to this motion to

dismiss, the Court grants the motion.” Id. at 5a.

The Fourth Circuit denied Petitioner’s timely

petition for rehearing en banc on November 5, 2019.

Id. at 14a-18a.

REASONS FOR GRANTING THE PETITION

The First, Third, and Fifth Circuits have all

held that district court judges overseeing MDLs and

other mass actions must implement objectively fair

procedures to determine the fee and expense

allocations of common-benefit funds. In particular,

those circuits have required close judicial

supervision of the decisions of court-appointed fee

committees regarding common-benefit funds in

multidistrict litigation, to ensure that the decisions

are transparent, legally valid, and fair and

reasonable, especially since they are made by selfinterested, conflicted plaintiffs’ lawyers who direct

massive awards to themselves.

In this case, the Fourth Circuit created a split

with those circuits by denying review of the District

Court’s order rubber-stamping the FCC’s selfinterested fee and expense allocation. Here, the

District Court refused to permit any discovery into

the documents considered by the FCC, not even

production of the time sheets at the heart of the fee

awards, even though they had been submitted to the

court for in camera review. In the First, Third, and

Fifth Circuits, the common-benefit fee awards would

have received close judicial scrutiny, and the

outcome in this case would have been different.

The question presented is important for

safeguarding federal judicial integrity. To comport

with due process, the common-benefit process must

be transparent, and the District Court must exercise

robust oversight and independent fact-finding. The

District Court cannot vest unfettered control in the

hands of, and cannot blindly accept the

recommendations of, the attorneys who have the

most to gain. Yet the Fourth Circuit summarily

dismissed the appeal in this case, without analyzing

the District Court’s failure to institute a fair,

transparent process – despite being presented with a

disturbing record including undisputed evidence of

self-dealing and falsification of key records

perpetrated by attorneys who awarded themselves

the lion’s share of the fund.

In addition, the Fourth Circuit ignored the

fact that the same special master (former state-court

Judge Daniel Stack) recently had been reversed by a

different district court for similarly biased

recommendations in another MDL. In re Syngenta

Mass Tort Actions, 2019 WL 3887515 (S.D. Ill. Aug.

19, 2019).

Remarkably, Judge Stack awarded

groups containing the same plaintiffs’ lawyer

(Clayton Clark) more than $100 million in attorney’s

fees in two MDLs litigated at the same time, even

though the lawyer was found to have improperly

overbilled in at least one of the proceedings. The

Fourth Circuit did not even question how the same

special master came to be in position to give more

than $100 million to the same lawyer across two

litigations occurring at the same time, especially in

light of damning findings by the Chief Judge of the

Southern District of Illinois. These are not wholly

separate events, but rather a clear pattern of related

improper conduct across multiple MDLs. The

question presented warrants this Court’s plenary

review.

The Fourth Circuit’s Decision Conflicts With

Precedent in the First, Third, and Fifth

Circuits.

Precedent in the First, Third, and Fifth

Circuits requires close judicial scrutiny of MDL

common-benefit fee awards.

In In re Nineteen Appeals Arising Out Of The

San Juan Dupont Plaza Hotel Fire Litigation, 982

F.2d 603, 614-15 (1st Cir. 1992), the First Circuit

recognized “the public interest in the integrity of

court proceedings” and reversed the district court’s

approval of a $36 million fee award to the plaintiffs’

steering committee, out of an overall $66 million

MDL common-benefit award. The First Circuit

recognized that there was an “intramural dispute”

among the attorneys “motivated . . . by profit.” Id. at

607.

The members of the plaintiffs’ steering

committee (“PSC”) favored a large common-benefit

award because “a large [common-benefit] award

stood to benefit [steering committee] members who

had few clients.” Id. “Despite this adversariness,

however, [the district court] severely limited the

[non-PSC members’] participation throughout the

fee-determination process. For instance, the judge’s

ground rules barred any non-PSC members from

testifying at the hearing. Moreover, the [nonmembers] were told that they had to file their

objections to the insurgents’ fee proposal on a onepage form designed by the court.” Id. The district

court refused to permit the non-members to examine

witnesses or to offer oral argument. Id. at 608. The

First Circuit held that these restrictions violated due

process: “[t]o be blunt, the protocol that governed the

hearing hogtied the [non-members], severely

restricting their ability to participate in the feedetermination process.” Id. at 613. “Such miserly

process is certainly not sufficient to meet

constitutional minima,” and “the court was not free

to construct a set of ground rules that largely

ignored the [non-members’] substantial stake in the

controversy,” or to displace “the Due Process

Clause.” Id. at 613, 614, 615.

The District Court’s fee-awarding procedure in

this case was even less transparent and less fair

than in the San Juan Dupont Plaza Hotel litigation.

Here, the District Court permitted no discovery and

held no evidentiary hearing at all. The District

Court refused to grant objectors access to the FCC

time sheets at the heart of the fee awards, even

though they had been submitted to the Court for in

camera review. Accordingly, had this case arisen in

the First Circuit, the District Court’s fee-approval

order would have been reversed. See also Yamada v.

Nobel Biocare Holding AG, 825 F.3d 536, 544, 545

(9th Cir. 2016) (quoting San Juan Dupont Plaza

Hotel Fire Litig., 982 F.2d at 614, for the proposition

that “when a judge constructs a process for setting

fees, the process must contain at least the procedural

minima that the Due Process Clause requires,” and

vacating fee award where district court used ex

parte, in camera submissions to support its fee order

without granting opposing party access to those

submissions: “the district court’s use over

Defendants’ objection of ex parte, in camera

submissions to support its fee order violated

Defendants’ due process rights”).

The Third Circuit has also required close

judicial scrutiny of MDL common-benefit fee awards.

In In re Diet Drugs (Phentermine/Fenfluramine/

Dexfenfluramine) Prods. Liab. Litig., 582 F.3d 524

(3d Cir. 2009), some 72 law firms requested “common

benefit” fees.

Unlike here, the district court

conducted a close examination of the claims of

counsel:

• the district court required all law

firms to submit verified copies of their

contemporaneously-maintained

time

records to a court-appointed auditor;

• the requesting attorneys were also

ordered to file a 30-volume compendium

of the fee requests and supporting

documents with the district court;

• any party or objector was allowed to

review the compendium, to propound

discovery, and to take depositions of

lead counsel claiming entitlement to

fees;

• following discovery, the district court

held a two-day hearing;

• the district court then required the

auditor to submit a report, allowed

supplemental compendiums of times

sheets to be filed, and held three

additional hearings on the issue of feeshifting;

Id. at 533-38. On appeal, the objectors argued the

court’s process was not sufficiently thorough or

transparent. Id. at 538. The Third Circuit rejected

the challenge based on the robust procedures

implemented by that district court, procedures that

are entirely absent here: public filing of the

compendiums, discovery afforded those subjected to

fee-shifting due process, a hearing, and the district

court’s meaningful review of the award. See id. at

541 (“trial courts must engage in robust assessments

. . . when evaluating a fee request,” and “that

occurred here”) (citation and internal quotation

marks omitted).

The District Court’s commonbenefit award in this case would not pass muster

under Third Circuit precedent.

Similarly, the decision in this case conflicts

with Fifth Circuit precedent. In In re High Sulfur

Content Gasoline Prods., 517 F.3d 220, 235 (5th Cir.

2008), the Fifth Circuit reversed a district court’s fee

award that relied heavily on the recommendations of

court-appointed lead counsel and did not allow

judicial review, audit, or testing of the lead counsel’s

fee request.

The Fifth Circuit held that “the

appointment of a committee does not relieve a

district court of its responsibility to closely scrutinize

the attorneys’ fee allocation, especially when the

attorneys recommending the allocation have a

financial interest in the resulting awards. Here, the

district court abdicated its responsibility to ensure

that the individual awards recommended by the Fee

Committee were fair and reasonable.” Id. at 227.

The Court of Appeals explained:

[O]ur precedents do not permit courts

simply to defer to a fee allocation

proposed by a select committee of

attorneys, in no small part, because

“counsel have inherent conflicts.” In re

Diet Drugs Products Liab. Litig., 401

F.3d 143, 173 (3d Cir. 2005) (Ambro, J.,

concurring). As Judge Ambro noted,

“They make recommendations on their

own fees and thus have a financial

interest in the outcome. How much

deference is due the fox who

recommends how to divvy up the

chickens?” Id.

Here, members of the Fee Committee

“had a direct conflict of interest: they

were suggesting to the District Court

how to proceed on matters near and

dear—dividing a limited fund among

themselves and other firms. Such a

direct conflict of interest strongly

suggests that affording substantial

deference is inappropriate.” Although

the proposed allocation “may ultimately

be fair, careful attention must be paid

to the procedures by which the

allocation is set.” If a district court

“chooses

rely

the

recommendations of a committee of

interested attorneys, it then becomes

necessary to scrutinize more closely

those recommendations.”

Id. at 234-35 (emphasis added); see also id. at 235

(Reavley, J., concurring) (“Any dispute about the

allocation must be resolved by the court after full

and fair hearing, . . . explaining its decision for all

and for our review”).

In addition, in In re Air Crash Disaster at

Florida Everglades, 549 F.2d 1005 (5th Cir. 1977),

the Fifth Circuit vacated a fee award and remanded

to enable the district court to conduct a “hearing in

the full sense of the word” and enter findings of fact

and conclusions of law from which the court of

appeals could determine whether the award

constituted a fair and just enrichment of the

plaintiffs’ committee. Id. at 1021. The District

Court decision in the instant case falls far below that

standard.

This circuit split warrants this Court’s review.

Divisions of authority on important points of

jurisdiction and administration are particularly

disruptive in the context of multi-district litigation.

In an ordinary circuit split, parties potentially

subject to a particular rule of law may predict how it

will be interpreted based on the circuit in which they

are litigating. But federal MDLs consolidate cases

from all over the country in a particular district

court, and it is impossible for parties to predict in

which circuit that court will be located. Here, the

FCC’s fee recommendations would have received

close judicial scrutiny in the First, Third, and Fifth

Circuits, and there is no reasonable justification for

according different and outcome-determinative

treatment based solely on the happenstance that the

pelvic mesh MDLs were consolidated in the

Southern District of West Virginia.

II.

The Question Presented Is An Important

Question Of Federal Law.

The question presented is important both

quantitatively and qualitatively. Common-benefit fee

assessments are the rule in MDL litigation.6 There

6 See, e.g., In re Kugel Mesh Hernia Patch Products

Liability Litig., No. 1:07-md-01842-ML-LDA, MDL No 07-1842

(D.R.I. Nov. 19, 2009) (imposing 12% assessment on thousands

of claims); In re Zyprexa Prods. Liab. Litig., 424 F.Supp.2d 488

(E.D.N.Y 2006), 2007 WL 2340789 (E.D.N.Y. 2007) (30,000

cases in state and federal court; 1% and 3% assessments); In re

Vioxx Prods. Liab. Litig., MDL 1657, Pretrial Order No. 19

(E.D. La. 2005) (thousands of lawsuits; 3% withheld; court

increased withholding to 4-8% for attorneys signing agreement

late); In re Clearsky Shipping Corp., 2003 WL 1563820 (E.D.

La. 2003) (1,500 cases; 4% withheld although counsel proposed

10% withholding); In re Bextra & Celebrex Mktg. Sales

Practices & Prods. Liab. Litig., 2006 WL 471782 (N.D. Cal.

2006) (1,800 cases with 4% withheld, but 8% withheld late

signers); In re Gel Breast Implants Prods. Liab. Litig., MDL

926, Pretrial Order No. 13 (N.D. Ala. 1993) and Pretrial Order

No. 13A (N.D. Ala. 1999) (1,778 actions with 4% withheld); In

re Bausch & Lomb Contact Lens Solution Prods. Liab. Litig.,

2008 WL 2330571 (D.S.C. May 21, 2008) (400 cases with 6%

withheld); In re Baycol Prods. Liab. Litig., 2002 WL 32155266

(D. Minn. 2002) (1,253 actions with 6% withheld); In re St.

Jude Med. Inc., Sitzone Heart Valves Prods. Liab. Litig., 2002

WL 1774232 (D. Minn. 2002) (two proposed classes included

10,535 and 1,000 individuals with 6% withheld); In re

Propulsid Prods. Liab. Litig., 2001 WL 34134864 (E.D. La.

2001) (several thousand cases and 28 class actions from 30

states; 6% and 4% withheld); In re Diet Drugs Prods. Liab.

Litig., 553 F.Supp.2d 442 (E.D. Pa. 2008) (105,000 suits and

130 class actions; 6% withheld); In re Avandia Mktg., Sales

Practices & Products Liab. Litig., MDL 1871, 2012 WL 6923367

(E.D. Pa. Oct. 19, 2012) (4,000 cases in state and federal court

with 6.25% withheld); In re Yasmin & Yaz (Drospirenone)

Mktg., Sales Practices & Prods. Liab. Litig., MDL 2011, 2010

U.S. Dist. LEXIS 22361, 9-10 (S.D.Ill. Mar. 8, 2010) (thousands

are currently 190 MDLs pending in the federal

district courts, encompassing 497,802 total actions

and representing perhaps one-third of all federal

litigation.

The issue is also important qualitatively. A

plaintiffs’ MDL fee committee is a court-appointed

entity acting with the imprimatur of the federal

judiciary. When a court-appointed committee of

plaintiffs’ lawyers makes an evidently self-interested

decision involving fees worth tens of millions or

hundreds of millions of dollars in a way that is not

transparent, jurisprudentially sound, or fair and

reasonable, it jeopardizes the integrity of the federal

judiciary. That risk is compounded when the federal

courts rubber-stamp such a decision, rather than

subjecting it to close review.

Members of this Court have expressed

justified concern about judicial orders in the mass

litigation context that might compromise court

integrity. In Marek v. Lane, 134 S. Ct. 8 (2013), the

Chief Justice, in a separate opinion respecting the

denial of certiorari, noted the need in an appropriate

case “to address more fundamental concerns

of cases in state and federal court with 6% withheld); In re Oil

Spill by the Oil Rig DEEPWATER HORIZON in the Gulf of

Mexico, on April 20, 2010, MDL 2179, 2011 WL 6817982

(E.D.La. Dec. 28, 2011), amended 2012 WL 37373 (E.D.La. Jan.

4, 2012), and amended and superseded on reconsideration,

2012 WL 161194 (E.D.La. Jan. 18, 2012) (6% withheld); In re

Oral Sodium Phosphate Solution-Based Prods. Liab. Action,

MDL 2066, Order Regarding Common Benefit Fees and

Expenses, at 3 (N.D.Ohio, Aug. 2, 2010) (4% assessment for

MDL cases); In re Fosamax Prods. Liab. Litig., MDL 1789,

CMO 17 ¶ 3(f)(3), (S.D.N.Y. Apr. 28, 2011) (9% assessment for

non-MDL cases utilizing common-benefit work product).

surrounding the use of such [cy pres] remedies in

class action litigation.” Id. at 9.

In Frank v. Gaos, the Chief Justice asked,

“[W]ould you agree that the district court should

never be the one suggesting possible recipients of the

funds of a settlement he has to approve?” No. 17-961,

Frank v. Gaos, Tr. Oral Arg. 50 (Roberts, C.J.).

Justice Kavanaugh explained, “[T]here is the

appearance, as the district court said in the hearing,

the appearance of favoritism and alma maters of -- of

counsel.” Id. at 56. Justice Kavanaugh focused on

“[t]he appearance problem here, which has happened

in many cases,” and he cited “the appearance of

favoritism and collusion.” Id. at 59, 61. Justice Alito

added, “The attorneys get money, and a lot of it.” Id.

at 63.

Concerns about the “appearance problem,”

“favoritism,” and “collusion” – as well as concerns

about the integrity of the judicial process more

broadly – are at their zenith in the context of MDL

fee allocation decisions. MDL fee committees are

self-interested entities, with attorneys awarding fees

and expenses to themselves, with staggering

amounts of money at stake. Further, many MDL fee

committees are plagued by conflicts of interest.

Leadership decisions driven by ancillary motivations

such as common-benefit fee awards are at crosspurposes with the rationale for their appointment –

vindication of the rights of the litigants. Attorneys

who obtain coveted fee committee appointments,

knowing they can profit handsomely from their

position, with no need to justify such awards based

on merit, undercut the integrity of the judicial

process, and subvert the interests of the primary

stakeholders: the litigants and the Court. For

example, as occurred here, the incentive to maximize

settlements for the individual plaintiffs is reduced

when massive common-benefit fee awards are

promised based on the sheer volume of cases filed,

regardless of the justice achieved for individuals.

This case illustrates the dangers. Here, the

FCC members will receive nearly two-thirds of a

common fund estimated at more than $550 million.

They were compensated at an average hourly rate of

$783.02, while non-members received only $268.22,

with no possible explanation for the startling

discrepancy. The same special master awarded a

group containing the same plaintiffs’ lawyer

(Clayton Clark) more than $100 million in attorney’s

fees in two MDLs litigated at the same time, even

though the lawyer was found to have improperly

overbilled in at least one of the proceedings. In In re

Syngenta Mass Tort Actions, 2019 WL 3887515 (S.D.

Ill. Aug. 19, 2019), a different district court severely

criticized Judge Stack (the “external review

specialist” here) for presenting a “subjective

analysis” that was “incongruent” with controlling

orders, rested on “tenuous presumptions,” suffered

from a “failure to seriously consider whether work

actually inured to the benefit of the plaintiffs,” and

accepted time submissions from Clayton Clark (a

member of the FCC in the instant case) that were

“grossly excessive.” Id. at *3, *7. The Syngenta

court concluded: “Ultimately, the Report and

Recommendation fails to carefully evaluate the

benefit of the work behind the hours, which dilutes

the contributions of some applicants while

significantly inflating the value of others.” Id. at *6.

The Syngenta court also criticized Judge Stack for

defending his allocation against objections, given his

“purportedly neutral roles in these proceedings.” Id.

at *5 n.4.

The Syngenta court criticized (and

reversed the application of) “a totally unprecedented

methodology that runs counter to common benefit

principles.” Id. Virtually the same unverifiable

“methodology” was used here, applying no formula,

objective factors, or cross-check.

Yet the District Court permitted no discovery,

held no evidentiary hearing, and in a six-page

opinion approved the FCC’s apparent self-dealing

without addressing any of the objections.

The

Fourth Circuit dismissed Petitioner’s appeal in a

single-sentence decision with no explanation. In

contrast, the Ninth Circuit recently recognized in the

analogous class action context: “the district court

must show it has explored comprehensively all

factors, and must give a reasoned response to all

non-frivolous objections. . . . to ensure the

substantive fairness of the settlement.”

In re

Volkswagen “Clean Diesel” Marketing, Sales

Practices, and Products Liab. Litig., 895 F.3d 597,

612-13 (9th Cir. 2018).

The Fourth Circuit’s abdication of judicial

responsibility is not consistent with this Court’s

decisions. This Court has recognized that plaintiffs

can be compelled to pay “common benefit” fees only

when the “benefit can be traced with some accuracy”

and the fees of recovery have been “shifted with

some exactitude to those recovering.” See Boeing Co.

v. Van Gemert, 444 U.S. 472, 480-81 (1980); Alyeska

Pipeline Serv. Co. v. Wilderness Society, 421 U.S.

240, 264-65 (1975).

These principles counsel in favor of close

scrutiny of MDL fee allocations, particularly when

performed by self-interested plaintiffs’ lawyers

serving on court-appointed committees.

Section

1407 contains no provision authorizing MDL courts

to deviate from the American Rule (that parties bear

their own attorney’s fees and expenses), which

“provides the starting point” in any analysis of

attorney’s fees. Peter v. Nantkwest, Inc., 140 S.Ct.

365, 372 (2019). Indeed, when reviewing the limited

grant of authority in Section 1407, this Court

refused to afford district courts additional power

under the statute beyond pretrial matters. Lexecon,

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523

U.S. 26, 28 (1998). A district court’s fee allocation

decisions are thus undertaken without any express

statutory authority and without the protections of

any statutory guidelines that might reduce the

dangers of abuse.

Accordingly,

many

authorities

have

recognized the need for close judicial scrutiny of fee

committee allocations. The Federal Judicial Center’s

Manual on Complex Litigation, for example,

recommends “exacting judicial review” of fee

requests. Manual for Complex Litigation § 14.231

(4th ed. 2004). It contemplates that specific evidence

in support of the fee request will be presented to the

court (and tested by the parties), and that the court

will hold a hearing, before a fee distribution occurs:

• “Exacting judicial review of fee applications,

burdensome though it may be, is necessary to

discharge the obligation to award fees that are

reasonable and consistent with governing law.” Id.

at § 14.231. The MCL notes that “[i]n common-fund

litigation,” a judge may have a “special” obligation

where counsel have a conflict of interest. Id.

• “Due process may require affording

claimants a meaningful opportunity to be heard

concerning competing applications for fees payable

from a common fund.” Id. at § 14.232.

• “In advance of any fee-award hearing,

counsel should submit time and expense records, to

the extent not previously submitted with the motion

in manageable and comprehensible form, to

encourage parties to reach agreements where

possible and to streamline the hearing.” Id. at

§ 14.223;

• “The direct testimony of witnesses in

support of the application can be in the form of

declarations, with the witnesses available at the

hearing for cross-examination if requested.” Id.

• Discovery “may be advisable where

attorneys making competing claims to a settlement

fund designated for the payment of fees.” Id. at

§ 14.224. “With appropriate guidelines and ground

rules, the materials submitted should normally meet

the needs of the court and other parties. If a party or

an objector to a settlement requests clarification of

material submitted in support of the fee motion, or

requests additional material, the court should

determine what information is genuinely needed and

arrange for its informal production.” Id.

The process in the instant case fails to meet

the standards set by the Federal Judicial Center.

See also Barbara J. Rothstein & Catherine R.

Borden, Federal Judicial Center, Managing

Multidistrict Litigation in Products Liability Cases:

A Pocket Guide for Transferee Judges 16 (2011)

(“You [the district court judge] have an independent

duty to review fees and specifically determine if they

are reasonable, applying traditional legal tests.”);

Hon. Eldon E. Fallon, Common Benefit Fees in

Multidistrict Litigation, 74 La. L. Rev. 371, 381

(2014) (“The total amount of the common benefit

fund should be reasonable under the circumstances,

and the method for distributing it should be fair,

transparent, and based on accurately recorded

data.”); Duke Law School, Best Practices, supra note

3, at 55 (2014) (“Before any distributions are made

from the fund, the transferee judge may decide to

provide an opportunity for all parties to be heard

and to seek appropriate information.); id. at 60

(“Establishing an allocation process that is

transparent will help create a fair and open

environment for all interested attorneys to perform

work for the common benefit of all claimants and

create a factual record for the eventual applications

for common benefit fees.”); id. at 62 (“During

adjudication of both the interim and final fee

awards, the transferee judge should permit

objections and allow objectors to take limited

discovery, if necessary.”).

Similarly, the United States has taken the

position that courts reviewing fees in mass litigation

“should not be paper tigers. Lower courts need to

conduct rigorous numerical analyses of feasibility

and determine fees based on actual relief to the

class, not, as here, based on an inflated percentage

or multiplier. Meaningful limits are necessary to

align incentives and deter abuse of the class action

device.” No. 17-961, Frank v. Gaos, Tr. Oral Arg. 2526. Counsel for the Government warned that “lower

courts are not being very rigorous.” Id. at 26. See

also Brief for the United States as Amicus Curiae

Supporting Neither Party in No. 17-961, Frank v.

Gaos, 2018 WL 3456069, * 29 (urging “close judicial

scrutiny of attorney’s fees”).

III.

This Case Is An Appropriate Vehicle To

Review The Question Presented.

The fact that the Fourth Circuit proceeded by

way of a one-sentence order is not a reason to deny

review. To the contrary: the Fourth Circuit’s rubberstamp of the District Court’s rubber-stamp

demonstrates the lack of meaningful review afforded

by the courts below – which is a pillar of Petitioner’s

argument in this case. The complete absence of

meaningful review by either the District Court or the

Court of Appeals makes this case the ideal vehicle to

decide the question presented. This is especially

true in light of the prominence of this massive MDL

and the sheer amount of the fees at issue, since it is

likely that other courts and fee committees will see a

failure to grant review as a green light to perpetuate

and expand the indefensible practices seen here.

In any event, this Court has made clear that

“the fact that the Court of Appeals’ order under

challenge … is unpublished carries no weight in [the

Court’s] decision to review the case.” Comm’r v.

McCoy, 484 U.S. 3, 7 (1987) (“The Court of Appeals

exceeded its jurisdiction regardless of nonpublication

and regardless of any assumed lack of precedential

effect of a ruling that is unpublished.”). This Court

has

often

granted

certiorari

review

“nonprecedential”

decisions

and

summary

affirmances. See, e.g., Holster v. Gatco, Inc., 130 S.

Ct. 1575 (2010) (reviewing summary affirmance);

Wilkins v. Gaddy, 559 U.S. 34 (2010) (summary

affirmance); Lynce v. Mathis, 519 U.S. 433, 436

(1997) (unpublished decision).

Previous certiorari petitions have addressed

the issue of common-benefit fees, demonstrating the

recurring nature of the controversy. However, prior

petitions did not pose the precise question presented

here.7

For example, No. 19-791, Anderson Law

Offices v. Common Benefit Fee and Cost Committee

(pending), is largely limited to the enforceability of a

common-benefit order requiring waiver of appeal

7 See also No. 18-301, Chieftain Royalty Co. v. Nutley,

cert. denied, Nov. 13, 2018 (“Whether common-fund fee awards

are governed in diversity cases by state or federal law.”); No.

16-804, Law Offices of Steven M. Johnson, P.C. v. Plaintiffs’

Advisory Committee, cert. denied, Feb. 21, 2017 (“whether a

federal court hearing multidistrict litigation has subject-matter

jurisdiction to impose liability for costs on plaintiffs and their

attorneys who have never appeared in the federal court action,

in order to compensate counsel in the federal litigation”); No.

15-704, Girardi Keese Law Firm v. Plaintiffs’ Advisory

Committee, cert denied, Feb. 29, 2016 (“The question presented

is whether a federal court has subject-matter jurisdiction to

force state court plaintiffs who have never appeared in federal

court to surrender proceeds from their state court settlements

to compensate counsel in federal court litigation.”); No. 15-703,

Bass v. Authors Guild, Inc., cert. denied, April 18, 2016 (“1.

What work is eligible for common benefit fees and how, by

whom and on what basis should such fees be awarded or a fee

award be allocated? 2. Was the allocation of fees that was

made in this case properly affirmed by the Court of Appeals or

should it have been set aside on due process grounds, under

Article III, as contrary to law and equity, or as an abuse of

discretion?”); No. 14-786, Phipps Group v. Downing, cert.

denied, Feb. 20. 2015 ([1] “Despite the American Rule, which

requires parties to bear their own attorney’s fees, do federal

courts presiding over mass litigation that has been consolidated

into multidistrict proceedings have the authority to order feeshifting amongst the parties? [2] If fee-shifting is allowed in

multidistrict proceedings, ‘[h]ow much deference is due the fox

who recommends how to divvy up the chickens?’ In other

words, if fee-shifting is appropriate, what guidelines govern the

request by court-appointed lead plaintiffs’ counsel for attorney’s

fees?”).

rights as a condition for receiving a common-benefit

fee award. See Petition in No. 19-791 at i (“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 instant Petition is not limited to the issue

of the enforceability of an appellate waiver provision.

Rather, this Petition (unlike the Petition in No. 19791) involves the broader question of the duty of

federal courts to closely supervise the fee and

expense allocation decisions of court-appointed fee

committees, which necessarily encompasses the

district court’s imposition of an appellate waiver at

the outset to shield its own decisions from appellate

scrutiny.

Indeed, Petitioner participated in the

common-benefit process based on a separate, standalone agreement with the FCC containing no

appellate waiver provision. Moreover, even if the

Fourth Circuit’s decision had rested on a

determination of appellate waiver, the enforceability

of such a waiver provision is an issue worthy of this

Court’s review in the course of resolving the broader

question presented. Federal courts have a duty to

closely supervise the fee and expense allocation

decisions of court-appointed fee committees, and

appellate waiver provisions imposed by the decisionmaking district court eviscerate that duty by

shielding decisions from appellate review. Such

take-it-or-leave-it provisions leave attorneys with no

effective choice; an MDL common-benefit process is

the only game in town for attorneys with cases

consolidated into an MDL – as well as (potentially

thousands of) additional state court cases as to

which MDL firms may have an interest, all of which

are typically assessed for the common benefit

pursuant to an MDL court’s orders. No plaintiffs’

attorney or firm has the meaningful choice of opting

out of the MDL common-benefit process or refusing

to agree to an appellate-waiver provision imposed by

the decisionmaker. The unilateral imposition of an

appellate waiver by a district court is thus

inconsistent with this Court’s recognition, even “in

the civil area,” that “we do not presume aquiescence

in the loss of fundamental rights.” Fuentes v.

Shevin, 407 U.S. 67, 94 n.32 (1972) (citation and

internal quotation marks omitted). “[I]n the civil no

less than the criminal area, courts indulge every

reasonable presumption against waiver.”

Id.

(citation and internal quotation marks omitted).

And the use of a forced appellate waiver in the

common benefit arena is not isolated but rather is

illustrative of a disturbing trend. Unlike here, when

recently presented an appellate waiver in a privatelitigation-wide settlement agreement in another

MDL, the Fifth Circuit correctly refused to dismiss

the appeal and ordered that the appellate waiver

provision be evaluated with the other merits issues.

In Re: Chinese-Manufactured Drywall Products

Liability Litigation, No. 19-30187 (5th Cir. May 21,

2019) (“IT IS ORDERED that appellee’s opposed

motion to dismiss the appeals is CARRIED WITH

THE CASE.”).

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,

ADAM M. SLATER

MAZIE SLATER KATZ

& FREEMAN, LLC

103 Eisenhower Pkwy.

Suite 207

Roseland, NJ 07068

Tel. (973) 228-9898

aslater@mazieslater.com

JONATHAN S. MASSEY

Counsel of Record

MASSEY & GAIL LLP

1000 Maine Ave. SW

Suite 450

Washington, D.C. 20024

Tel. (202) 652-4511

jmassey@masseygail.com

Counsel for Petitioner

February 3, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.