2. Mass Tort Rulings Regarding Common Benefit Funds Common benefit funds are typically set up in MDLs to ensure that lead counsel achieves favorable results for all plaintiffs, as leadership counsel will receive compensation from the fund if the claims are successful. Specified percentages from each plaintiff ’ s settlement or recovery is often reserved and deposited into the fund. Generally, as the MDL begins to reach its conclusion, leadership counsel generally presents its case to the court that outlines the value of the work they performed on the case, which translates into attorney ’ s fees. Any attorney that performed work classified as “common benefit work” is allowed to seek fees from the common benefit fund. Litigation over the fairness and reasonableness of fees from the common benefit fund have received scrutiny over the past years due to the percentage of fees claimed by leadership counsel. Courts in 2023 examined this issue in several rulings, including at the appellate level in the Ninth Circuit. In Jones, et al. v. Pennsylvania (In Re Bard IVC Filters Products Liability Litigation) , 81 F.4th 897 (9th Cir. 2023), the plaintiffs filed a lawsuit alleging that the defendant ’ s IVC filters caused personal injuries, including death. Around May 2019, the well-established IVC MDL had more than 8,000 active cases. The district court issued Case Management Order No. 6, which provided “for the fair and equitable sharing among plaintiffs, and their counsel, of the burden of services performed and expenses incurred by attorneys acting for the common benefit of all plaintiffs in this complex litigation.” Id. at 902. BCM, representing the plaintiffs both in and out of the MDL, moved to exempt non-MDL cases from the common benefit fund, but the district court denied the motion. BCM timely appealed. The Ninth Circuit reviewed the district court ’ s opinion and concluded the MDL statute is procedural in nature and does not provide district courts the authority to create a common benefit fund or make decisions thereon. Id. at *903. Further, the Ninth Circuit reviewed the district court ’ s determination that a common benefit fund was necessary and was properly provided for in the inherent powers of the court. The Ninth Circuit adjudged the narrow questions of whether the district court had authority to order common benefit fund assessments from the plaintiffs’ recoveries in non-MDL cases. Turning to Third Circuit precedent, the Ninth Circuit was persuaded by the Third Circuit ’ s reasoning and analysis in a similar case where the Third Circuit determined that because the law firm agreed to and participated in the common benefit fund, the district court had authority to oversee and remedy any breaches the law firm made with regard to the agreement. Id. at 908. Turning then to the question at hand, the Ninth Circuit noted that BCM voluntarily participated in the common benefit fund agreement among the plaintiffs’ counsel and agreed to assessment against their clients’ recoveries in non-MDL cases. For these reasons, the Ninth Circuit held that the district court did not act outside its authority when it enforced the participation agreement by denying BCM ’ s motion to exempt its non-MDL cases. VI. Top Products Liability And Mass Tort Class Action Settlements In 2023 The plaintiffs’ class action bar was enormously successfully in obtaining class-wide settlements in this area in 2023. The top ten products liability and mass tort class-wide settlements totaled $25.83 billion in the past year. In context, 2022 saw a series of opioid settlements that fueled a total of $50.32 billion in the top ten products liability and mass tort class-wide settlements.
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© Duane Morris LLP 2024
Duane Morris Product Liability And Mass Torts Class Action Review – 2024
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