SAN FRANCISCO (Legal Newsline) - There’s no need to resolve a brewing fight over more than $800 million in fees from Roundup lawsuits, a federal appeals court ruled, rejecting an attempt by plaintiff lawyers in charge of federal multidistrict litigation to collect fees from cases in state court.
Weitz & Luxenberg and the Miller Law Firm appealed a June 2022 order by U.S. District Judge Vince Chhabria tentatively granting them 8% of any settlements of cases in the MDL as a so-called “common benefit” fee. The lawyers, whom Chhabria appointed co-leads of the federal litigation, wanted a similar percentage of other cases outside the federal court system, but rival lawyers called that an unjustified “money grab.”
Bayer AG has offered more than $11 billion to resolve tens of thousands of lawsuits accusing Roundup of causing non-Hodgkin’s lymphoma, a common cancer, without admitting liability.
The Ninth Circuit declined to decide the fee dispute, ruling that since Judge Chhabria hadn’t issued a final judgment in the case it lacked jurisdiction. Federal appeals court can decide some questions that are ancillary to the case, the three-judge panel said in a Nov. 3 memorandum opinion, but only if substantial rights are at stake and the issue can’t be resolved later on appeal.
In this case, Judge Chhabria “contemplated continued fee litigation” including the total value of the common-benefit fee, which courts can award to lead counsel if their work is seen as helping other plaintiff lawyers win settlements.
There’s no question attorney fees are separate from the merits of the Roundup litigation, the appeals court said. But “the denial of common benefit fees from certain sources of funds does not present a `serious’ or `important’ question implicating rights that would be destroyed absent immediate review,” the appeals court concluded.
The fight over Roundup fees is just one example of how lawyers who frequently control MDLs seek to reap a share of settlements regardless of where cases are filed. In the opioid MDL, hundreds of cities and counties including Harris County, Texas, home to Houston, have asked the Sixth Circuit Court of Appeals to block an order by U.S. District Judge Dan Aaron Polster that could steer billions of dollars in fees to lawyers leading that MDL.
Those lawyers, who have already negotiated agreements on behalf of government clients that will reward them with more than $1 billion in fees, argue that Judge Polster’s order doesn’t necessarily mean they can collect fees from state-court cases. The Plaintiffs Executive Committee in the opioid MDL consists of 21 law firms, most of whom frequently lead mass-tort multidistrict litigation, including Motley Rice, Simmons Hanly Conroy, and Farrell & Fuller.
The fee fight in the Roundup litigation pitted Weitz & Luxenberg, also active in opioid cases, against Houston attorney Mark Lanier and Bernstein Leibhard. They argued a court-ordered holdback would reward the lead attorneys with extra fees on top of a premium they negotiated from Bayer for their clients.
Bernstein Leibhard said The Miller Firm was believed to have settled its inventory of 5,000 cases for $849 million, meaning it already earned a $340 million fee at the standard 40%.