FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: BARD IVC FILTERS No. 22-15872
PRODUCT LIABILITY
LITIGATION, D.C. No. 2:15-
md-02641-DGC
------------------------------
DORIS JONES; et al *, OPINION
Plaintiffs,
and
LAW OFFICES OF BEN C.
MARTIN; MARTIN BAUGHMAN
PLLC,
Appellants,
v.
BABBITT & JOHNSON PA; BARON
& BUD, PC; COMMON BENEFIT
FEE AND COST COMMITTEE;
BEUS GILBERT MCGRODER
PLLC; BOSSIER & ASSOCIATES
*
The court is not listing all approximately 8,600 plaintiffs.
2 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
PLLC; BRANCH LAW FIRM;
BRENES LAW GROUP, P.C;
DALIMONTE RUEB STOLLER
LLP; FARACI LANGE LLP; FARRIS
RILEY & PITT LLP; FEARS
NACHAWATI PLLC; FREESE &
GOSS PLLC; GALLAGHER &
KENNEDY PA; GOLDENBERG
LAW PLLC; HAUSFELD LLP;
HEAVISIDE REED ZAIC; LEVIN
PAPANTONIO THOMAS
MITCHELL RAFFERTY &
PROCTOR PA; LIEFF CABRASER
HEIMANN & BERNSTEIN LLP;
LOPEZ MCHUGH LLP;
MATTHEWS & ASSOCIATES;
MOTLEY RICE LLC; NATIONS
LAW FIRM; BABBITT JOHNSON
OSBORNE & LECLAINCHE PA;
PROVOST & UMPHREY LAW
FIRM LLP; GALLAGHER LAW
FIRM; TORHOERMAN LAW LLC;
WAGSTAFF & CARTMELL LLP;
WALKUP MELODIA KELLY &
SCHOENBERGER; WATKINS
LOURIE ROLL & CHANCE PC,
Appellees,
C. R. BARD, INC., a New Jersey
corporation, BARD PERIPHERAL
VASCULAR, INC., a subsidiary
and/or Division of defendant C.R.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 3
Bard, Inc., an Arizona corporation,
Defendants-Appellees,
and
CHRISTIAN MOTTAS,
CHRISTIANA CARE HEALTH
SERVICES, INC., CHRISTIANA
CARE HEALTH SYSTEMS, INC.;
THOMAS BAUER, M.D.; CYNTHIA
HELDT, M.D.; CALIFORNIA
PACIFIC MEDICAL CENTER;
LAWRENCE L. SCHMETTERER,
M.D.; REGENTS OF THE
UNIVERSITY OF CALIFORNIA;
BARD MEDICAL DIVISION;
MCKESSON CORPORATION;
PAUL M. KIPROFF, M.D.;
RAYMOND L. BENZA, M.D.;
ALLEGHENY GENERAL
HOSPITAL; NEOMETRICS, INC.;
WESTCHESTER COUNTY
MEDICAL CENTER; KENNETH
COLLINS; JAMES H. DYER, Jr.;
JAMES W. MCLEOD, Jr.; DAMON
PAGE,
Defendants.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
4 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
Argued and Submitted April 18, 2023
Phoenix, Arizona
Filed August 24, 2023
Before: John B. Owens and Bridget S. Bade, Circuit
Judges, and M. Miller Baker, ** International Trade Judge.
Opinion by Judge Bade
SUMMARY ***
Multidistrict Litigation
The panel affirmed the district court’s order in this
multidistrict litigation (MDL), In re Bard IVC Filters
Products Liability Litigation, requiring common benefit
fund assessments against the recoveries of claimants who
were not involved in cases that were part of the MDL (non-
MDL cases).
The panel held that the district court’s order requiring
common benefit fund assessments in the non-MDL cases
was within the scope of the district court’s authority to
regulate the conduct of the MDL counsel and parties. A
district court properly exercises its authority to order
**
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 5
common benefit fund holdback assessments from claimants’
recoveries in non-MDL cases when (1) counsel for claimants
voluntarily consents to the district court’s authority by
signing, or otherwise entering into, a participation agreement
requiring contributions in exchange for access to common
benefit work product, (2) that participation agreement is
incorporated into a court order, and (3) as a result of entering
the participation agreement, counsel receives access to
common benefit work product. Because these requirements
were satisfied here, the panel affirmed the district court’s
order denying claimants’ motion to exempt non-MDL cases
from common benefit fund assessments.
COUNSEL
Howard J. Bashman (argued), Law Offices of Howard J.
Bashman, Fort Washington, Pennsylvania; Ben C. Martin,
Ben Martin Law Group, Dallas, Texas; Laura J. Baughman,
Martin Baughman PLLC, Dallas, Texas; for Plaintiffs-
Appellants.
Shannon L. Clark (argued), Gallagher & Kennedy PA,
Phoenix, Arizona; Joseph R. Johnson, Babbitt & Johnson
PA, West Palm Beach, Florida; Russell W. Budd, Baron &
Budd PC, Dallas, Texas; Roland Tellis, Baron & Budd PC,
Encino, California; Wendy R. Fleishman, Lieff Cabraser
Heimann & Bernstein LLP, New York, New York; Mark O’
Connor, Beus Gilbert PLLC, Phoenix, Arizona; Sheila M.
Bossier, Bossier & Associates PLLC, Jackson, Mississippi;
Margaret M. Branch , Branch Law Firm, Albuquerque, New
Mexico; Troy Brenes, Brenes Law Group, Irvine, California;
Paul L. Stoller, Rueb Stoller Daniel LLP, Phoenix, Arizona;
Hadley E. Lundback, Faraci Lange LLP, Rochester, New
6 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
York; Calle M. Mendenhall, Farris Riley & Pitt LLP,
Birmingham, Alabama; Sherri A. Saucer, Nachawati Law
Group, Dallas, Texas; Richard Freese, Freese & Goss,
Birmingham, Alabama; Marlene L. Goldenberg, Nigh
Goldenberg Raso Vaughn PLLC, Washington, D.C.;
Richard S, Lewis, Hausfeld LLP, Washington, D.C.; Julia
Reed, Julia Reed Zaic, Newport Beach, California; Matthew
D. Schultz, Levin Papantonio Rafferty Proctor Buchanan
O’Brien Barr & Mougey PA, Pensacola, Florida; Amorina
P. Lopez, Lopez McHugh LLP, Aliso Viejo, California;
David P. Matthews, Matthews & Associates, Houston,
Texas; Fred Thompson III, Motley Rice LLC, Mount
Pleasant, South Carolina; Howard L. Nations, Howard L.
Nations Law Office, Houston, Texas; Joseph Osborne,
Osborne & Francis, Boca Raton, Florida; Christopher T.
Kirchmer, Provost & Umphrey Law Firm LLP, Beaumont,
Texas; Michael T. Gallagher, Gallagher Law Firm, Houston,
Texas; Tor A Hoerman, TorHoerman Law LLC,
Edwardsville, Illinois; Thomas Philip Cartmell, Wastaff &
Cartmell LLP, Kansas City, Montana; Spencer J. Pahlke and
Douglas S. Saeltzer, Walkup Melodia Kelly &
Schoenberger, San Francisco, California; Robert D. Roll,
Watkins Lourie Roll & Chance PC, Atlanta, Georgia; for
Appellees.
Richard B. North Jr, Nelson Mullins Riley & Scarborough
LLP, Atlanta, Georgia; Kasey Curtis, Reed Smith LLP, Los
Angeles, California; for Defendants-Appellees.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 7
OPINION
BADE, Circuit Judge:
Appellants, the Law Offices of Ben C. Martin and the
law firm Martin|Baughman, PLLC (collectively, BCM),
argue that the district court in this multidistrict litigation
(MDL), In re Bard IVC Filters Products Liability Litigation,
lacked authority to order common benefit fund assessments
against the recoveries of claimants who were not involved in
cases that were part of the MDL—that is, those with claims
that were not filed in any court, or were filed in state court,
or were filed in federal court after the MDL closed
(collectively, non-MDL cases). After settling their clients’
claims against C.R. Bard, Inc. and Bard Peripheral Vascular,
Inc. (collectively, Bard), BCM moved to exempt the
recoveries of their clients in non-MDL cases from common
benefit fund assessments. The district court denied the
motion, concluding that it had authority to order assessments
for a common benefit fund based on the MDL statute, 28
U.S.C. § 1407(b), its inherent power to manage cases,
BCM’s consent to its order authorizing the assessments, and
the common fund doctrine. In this appeal, BCM challenges
that order. 1
We hold that a district court properly exercises its
authority to order common benefit fund holdback
assessments from claimants’ recoveries in non-MDL cases
when (1) counsel for claimants voluntarily consents to the
district court’s authority by signing, or otherwise entering
1
Although not listed in the caption, Appellees are all law firms awarded
common benefit fees and expense reimbursements. Neither the plaintiffs
nor the defendants in the underlying litigation are involved in this appeal.
8 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
into, a participation agreement requiring contributions in
exchange for access to common benefit work product, (2)
that participation agreement is incorporated into a court
order, and (3) as a result of entering the participation
agreement, counsel receives access to common benefit work
product. Because these requirements were met here, we
affirm the district court’s order denying BCM’s motion to
exempt its non-MDL cases from the assessment of common
benefit attorney’s fees and costs.
I
Bard manufactures and markets medical devices,
including blood clot filters. For several years, Bard
defended product liability lawsuits alleging that its
retrievable inferior vena cava (IVC) blood clot filters caused
injuries and deaths. Beginning in August 2015, many of
these cases were transferred to, or filed in, the MDL
proceedings at issue here. 2 By the time the MDL closed in
May 2019, it included more than 8,000 cases. This appeal
challenges one aspect of the district court’s management of
these cases: the court’s orders assessing a holdback on the
recoveries in certain non-MDL cases to establish a common
benefit fund.
A
At the outset of the MDL, the district court entered a case
management order that appointed lead counsel for plaintiffs
2
BCM represented 507 claimants who alleged that they suffered
personal injuries related to the Bard IVC filters. According to BCM,
they represented 201 claimants who filed suit in federal court and whose
claims were transferred to the MDL, 41 claimants who filed suit in
federal court after the MDL closed, 264 claimants who settled their
claims without filing suit in any court, and 1 claimant who filed suit in
state court.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 9
(Plaintiffs’ Lead Counsel, or PLC). This order directed
counsel to select and appoint a Plaintiffs’ Steering
Committee (PSC) to coordinate pretrial activities and trial
planning. Attorney Ben C. Martin, the sole owner of the
Law Offices of Ben C. Martin and a shareholder of the law
firm Martin|Baughman, became a member of the PSC at its
inception.
A few months later, the court entered another case
management order (CMO 6) to “provide 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.” This order established a common
benefit fund to provide reasonable compensation for counsel
who performed work that benefited all plaintiffs. To pay for
the common benefit fund, the court ordered an 8%
assessment as a holdback on plaintiffs’ recoveries, which
included 6% for attorney’s fees and 2% for expenses. 3 The
order applied to all cases pending or later filed in, or
transferred or removed to, the MDL court (MDL cases),
“regardless of whether the plaintiff’s attorney sign[ed] the
‘Participation Agreement.’”
CMO 6 also applied to participating counsel who signed
or entered into the Common Benefit Participation
Agreement (participation agreement), which was explicitly
incorporated into the order and attached as an exhibit. The
participation agreement—which was a voluntary agreement
3
The court later concluded that significant unanticipated common
benefit work justified an increase in the assessment and therefore
amended CMO 6 to increase the assessment for attorney’s fees to 8% of
the plaintiffs’ recoveries. The court did not increase the assessment for
expenses.
10 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
between plaintiffs’ attorneys, signed by Plaintiffs’ Lead
Counsel and participating plaintiffs’ counsel—granted
participating counsel access to common benefit work
product in exchange for agreeing to the assessment against
their clients’ recoveries. 4 Participating counsel were also
eligible to receive compensation from the common benefit
fund for performing common benefit work, and BCM
applied for, and was awarded, compensation from the
common benefit fund for work as participating counsel. In
contrast, non-participating counsel, while not required to pay
an assessment on their clients’ recoveries for cases filed in
state court or for un-filed cases, were not entitled to receive
common benefit work product and were not eligible to
receive common benefit payments for any work performed
or expenses incurred.
CMO 6 also established that all plaintiffs’ counsel who
signed the participation agreement would be considered
4
As the district court explained, “[t]he common benefit work in this case
include[d] millions of pages of reviewed documents, substantial
[electronically stored information] discovery, scores of depositions
(including trial preservation depositions after the MDL closed), and
numerous experts retained and developed by the MDL’s lead counsel.”
Plaintiffs’ Lead Counsel also litigated “numerous Daubert challenges,
multiple summary judgment motions (including one that would have
defeated all plaintiffs’ claims on the basis of preemption), numerous
motions in limine, three multi-week bellwether trials, post-trial motions
and appeals, and substantial settlement efforts,” which benefited all
plaintiffs. The common benefit work also included “scores of
depositions of general causation experts and Bard witnesses.” And
Plaintiffs’ Lead Counsel prepared a trial package to assist plaintiffs’
counsel trying cases on remand. The trial package included “almost all
the work product developed in the MDL and qualifying pre-MDL cases,
including tens of thousands of documents, motions, transcripts, exhibits,
corporate documents, legal memos, and post-bellwether preservation
depositions.”
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 11
participating counsel, and that Plaintiffs’ Lead Counsel and
members of the PSC would automatically be considered
participating counsel. 5 The order further explained that
“[t]he assessment shall apply to all of the cases of the
plaintiffs’ attorneys who are subject to this Order, . . .
including cases pending in the MDL, pending in state court,
unfiled, or tolled.”
In April 2021, after extensive case management efforts,
including bellwether trials and appeals, the court entered an
order with its final suggestion of remand and transfer,
pursuant to 28 U.S.C. § 1407(a). By this time, thousands of
the MDL cases had settled or were remanded, transferred to
appropriate districts, or dismissed for failure to prosecute or
lack of jurisdiction. The district court declared that “[t]his
MDL has now concluded.”
As cases were being dismissed, transferred, and settled,
participating counsel could dispute the allocation of
common benefit fees before a court-appointed Special
Master. In September 2021, the Special Master submitted a
final report on common benefit fee and expense allocations,
indicating that all allocation disputes had been resolved. In
October 2021, the district court entered another case
management order (CMO 51), which adopted the Special
Master’s report and recommendations and noted that all
common benefit fee and expense disputes had been resolved.
In November 2021, BCM settled all its clients’ Bard IVC
filter claims, which included all its MDL cases and non-
MDL cases. BCM then moved to exempt its non-MDL cases
5
Although BCM notes that “neither side has been able to locate any
Participation Agreement signed by BCM,” it does not dispute the district
court’s conclusion that BCM attorneys were automatically participating
counsel because Ben C. Martin was a member of the PSC.
12 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
from the common benefit fee and cost assessments. As set
forth below in Section I.B, the district court denied the
motion. BCM timely appealed. 6
B
The district court addressed BCM’s motion to exempt its
non-MDL cases from the common benefit assessments in a
comprehensive order in which it thoroughly analyzed
several bases for its authority to enforce its order requiring
assessments from participating counsel’s non-MDL cases.
See In re Bard IVC Filters Prods. Liab. Litig., 603 F. Supp.
3d 822 (D. Ariz. 2022).
First, the court agreed with other courts that have
concluded that “the MDL statute is procedural in nature and
does not clearly confer on federal courts the power to create
a common benefit fund or make assessments for that fund.”
Id. at 831. But, the court noted, “the statute is not entirely
irrelevant” because it provides that the Judicial Panel on
Multidistrict Litigation will transfer cases to MDL judges for
“coordinated or consolidated pretrial proceedings.” Id.
(quoting 28 U.S.C. § 1407(b)). And MDL judges may
“exercise such inherent powers as are necessary to manage
and complete those pretrial proceedings,” including
determining “how lead counsel will be paid for their
extensive MDL work on behalf of all plaintiffs.” Id. Thus,
the court concluded that although § 1407 is a procedural
statute and “not itself a source of power for a court to
establish and oversee a common benefit fund, it creates a
complex and consolidated litigation process that makes the
6
The district court also denied BCM’s request to reduce the attorney’s
fees assessments on its clients’ recoveries in MDL cases, but BCM does
not challenge that part of the court’s order in this appeal.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 13
exercise of the court’s inherent power uniquely necessary.”
Id.
Second, the district court considered its inherent power
as a source of its authority to order common benefit
assessments from claimants’ recoveries in non-MDL cases.
Id. at 831–35. As the court stated, while such inherent power
in federal courts to manage cases is “well established,” it is
not without limits. Id. at 831–32 (citation omitted). The
court explained that the exercise of such inherent power (1)
“must be a reasonable response to the problems and needs
confronting the court’s fair administration of justice,”
(2) “cannot be contrary to any express grant of or limitation
on the district court’s power contained in a rule or statute,”
and (3) may not be used to enforce “orders—particularly
those regulating conduct outside of the courtroom—against
the entire universe of potential violators.” Id. at 832 (internal
quotation marks omitted) (quoting In re Gen. Motors LLC
Ignition Switch Litig., 477 F. Supp. 3d 170, 189 (S.D.N.Y
2020)). The court concluded that enforcement of its order
requiring common benefit assessments fell within those
limits, in part, because imposing assessments in MDL cases
to provide compensation to lead counsel was “a reasonable
response to the problems and needs confronting the court’s
fair administration of justice,” id. (citation omitted), and
because enforcement of its order was not contrary to any
express grant of or limitation on its power in a rule or statute,
id. at 833.
The district court also concluded that its “exercise of its
inherent power to impose common benefit assessments on
BCM’s unfiled and state court cases [was] bolstered by the
fact that BCM knowingly entered into the Participation
Agreement incorporated into CMO 6.” Id. BCM knowingly
agreed to the terms of the participation agreement and took
14 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
advantage of those terms when it accessed common benefit
work product and applied for and received common benefit
funds for its common benefit work. Id. at 833–34. Thus, the
court concluded that it had “the inherent power to enforce
the terms of CMO 6 and the Participation Agreement, to hold
BCM to its promise to pay the Court-ordered common
benefit assessments on recoveries obtained in its unfiled and
state court cases, and to hold BCM’s clients to the agreement
made by their counsel and surely included in their fee
agreements with BCM.” 7 Id. at 835.
Third, the district court set forth a thorough explanation
of the historical development of the common fund doctrine
and its application in multidistrict litigation.8 Id. at 835–38.
The court noted that the common fund doctrine has been
“consistently cited” by MDL courts as a basis for common
benefit assessments to compensate counsel for work that
benefits all MDL plaintiffs. Id. at 836 (citation omitted).
And while acknowledging that “MDLs generally do not
produce an actual fund paid into court on which all plaintiffs
can draw,” as the common fund doctrine does, the court
concluded that “the advantage conferred on all plaintiffs by
7
The district court also cited and explained numerous ethical rules that
required BCM to advise its clients, in writing, of the terms of its fee
agreements, which would include the common benefit assessments that
BCM agreed to pay by entering the participation agreement. Id. at 834.
8
Under the common fund doctrine, “a litigant or a lawyer who recovers
a common fund for the benefit of persons other than himself or his client
is entitled to a reasonable attorney’s fee from the fund as a whole.”
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). It is intended to
avoid the unjust enrichment that would result from allowing parties to
“obtain the benefit of a lawsuit without contributing to its cost.” Id. And
it permits a district court to use its managerial powers “to prevent this
inequity by assessing fees against the entire fund, thus spreading fees
proportionately among those benefited by the suit.” Id.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 15
a successful MDL prosecution is no less real. The equitable
reality underlying the common fund doctrine—that
substantial work and expense by few has conferred a
significant financial benefit on many—is the same.” Id. at
838. The court concluded that those equitable
considerations applied in this case because BCM and its
clients accessed common benefit work product and
financially benefited as a result. Id. Thus, “[t]he compelling
equities of the common benefit doctrine apply fully here.”
Id.
Finally, the district court stated that reliance interests
were also relevant to its decision because the common
benefit fund was established early in the litigation, and the
PSC “managed and litigated this complex MDL to a
conclusion, tried three bellwether cases, withstood Bard’s
preemption challenge, and amassed evidence and experts
useable by all plaintiffs and their counsel.” Id. at 839. Thus,
the PSC and other attorneys who performed common benefit
work justifiably relied on participating counsels’ agreements
to pay common benefit assessments. Id. Fairness required
that BCM’s attempt to avoid paying assessments be denied.
Id. at 839–40.
With this background in mind, we turn to the issues
before us, starting with our jurisdiction to hear this appeal.
II
The parties agree that we have jurisdiction under 28
U.S.C. § 1291, which provides for federal appellate
jurisdiction over “all final decisions” of the district courts.
Gelboim v. Bank of Am. Corp., 574 U.S. 405, 408 (2015)
(quoting 28 U.S.C. § 1291). But we have “a special
obligation to satisfy [ourselves] . . . of [our] own
jurisdiction.” Bender v. Williamsport Area Sch. Dist., 475
16 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
U.S. 534, 541 (1986) (citation and internal quotation marks
omitted).
Generally, “[a] decision is ‘final’ under § 1291 if it ‘(1)
is a full adjudication of the issues, and (2) clearly evidences
the judge’s intention that it be the court’s final act in the
matter.’” Weston Fam. P’ship LLLP v. Twitter, Inc., 29
F.4th 611, 618 (9th Cir. 2022) (quoting Disabled Rts. Action
Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 870 (9th Cir.
2004)). However, finality is to be given a “practical rather
than a technical construction.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). In determining
whether fee awards are final for purposes of § 1291, we
consider whether there was a final judgment on the merits,
and whether there was a final determination on the fees
question. See, e.g., Trustees v. Greenough, 105 U.S. 527,
531 (1881) (order granting attorney’s fees from a common
fund was final, notwithstanding that the district court was
still administering the fund, because the order was “so far
independent as to make the decision substantially a final
decree for the purposes of an appeal”).
Here, the MDL closed to new cases in May 2019. By
April 2021, thousands of cases pending in the MDL had
settled, while others were eventually remanded or
transferred to appropriate districts, and others were
dismissed. Plaintiffs’ attorneys, including BCM, had the
opportunity to dispute common benefit fee allocations
before a Special Master, and in September 2021, the Special
Master submitted a final report stating that all allocation
disputes were resolved. In October 2021, the district court
adopted the Special Master’s recommendations for fee and
expense allocations and incorporated them into CMO 51.
BCM settled all its clients’ Bard IVC filter cases by
November 2021, and in January 2022, BCM moved to
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 17
exempt its non-MDL cases from the common benefit fund
assessments. In May 2022, the district court denied BCM’s
motion, leaving nothing for the district court to do except
distribute any remaining common fund fee requests.
Applying a “practical rather than a technical construction,”
Cohen, 337 U.S. at 546, we conclude the district court’s May
2022 decision is final for purposes of § 1291, and we have
jurisdiction over this appeal.
III
The district court’s determination of its authority to
assess common benefit attorney’s fees and costs presents a
legal question, see Vincent v. Hughes Air W., Inc., 557 F.2d
759, 771–75 (9th Cir. 1977) (concluding common fund
doctrine permitted district court’s allocation of fees to lead
counsel in mass tort case, and that district court properly
exercised its power to appoint lead counsel and restrict
activities of nonlead counsel), which we review de novo, see,
e.g., Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137,
1140 (9th Cir. 2009). We review the district court’s factual
findings for clear error. See Vincent, 557 F.3d at 767.
IV
A
This case presents a narrow question of the district
court’s authority to order common benefit fund assessments
from plaintiffs’ recoveries in non-MDL cases. 9 It does not
9
Appellees argue that BCM waived its arguments on appeal by failing
to object to the district court’s orders. Even if we accepted this argument,
we have the discretion to consider waived arguments that present purely
legal issues, United States v. Clack, 957 F.2d 659, 661 (9th Cir. 1992),
and we do so here; at least as to the arguments BCM made in its opening
brief.
18 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
raise the broader question of the district court’s authority to
order such assessments on cases in the MDL. Indeed, we
addressed that issue more than forty-five years ago in
Vincent and held that a district court managing multidistrict
litigation may appoint lead counsel, restrict the activities of
non-lead counsel, and create a fund consisting of a
percentage of the MDL plaintiffs’ recoveries to compensate
lead counsel “for work performed for the benefit of all
plaintiffs.” 557 F.2d at 763, 772–74. We concluded that the
district court had this authority under the common fund
doctrine. Id. at 768–71 (citing Trustees v. Greenough, 105
U.S. 527 (1881), and Cent. R.R. & Banking Co. v. Pettus,
113 U.S. 116 (1885), and explaining the historical
development of the common fund doctrine); see also id. at
772 (concluding that lead counsel “engaged in substantial
work after their appointment that benefited all claimants”
and thus “the common fund doctrine permits fee shifting of
the sort ordered by the district court”). Other circuits have
similarly held that an MDL court has the authority to order
assessments against MDL plaintiffs’ recoveries to establish
a common benefit fund to compensate plaintiffs’ counsel for
common benefit work. 10 And district courts managing MDL
cases have also reached this conclusion. 11
10
See In re Diet Drugs, 582 F.3d 524, 546–47 (3d Cir. 2009); In re
Showa Denko K.K. L-Tryptophan Prods. Liab. Litig.-II, 953 F.2d 162,
164 (4th Cir. 1992); In re Air Crash Disaster at Fla. Everglades on Dec.
29, 1972, 549 F.2d 1006, 1016–18 (5th Cir. 1977).
11
See, e.g., In re Roundup Prods. Liab. Litig., 544 F. Supp. 3d 950, 957
(N.D. Cal. 2021); Gen. Motors, 477 F. Supp. 3d at 179; In re Vioxx
Prods. Liab. Litig., 802 F. Supp. 2d 740, 770–71 (E.D. La. 2011).
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 19
B
Indeed, BCM does not dispute that the district court had
the authority to order common benefit assessments against
the recoveries of its clients with cases in the MDL. Instead,
BCM argues that the district court lacked the “judicial
authority,” or “judicial power,” to order holdback
assessments from plaintiffs’ recoveries in non-MDL cases.
Although BCM also sometimes vaguely refers to the court’s
“jurisdiction,” it does not argue that the district court’s
orders fail for lack of subject-matter jurisdiction. Thus, it
appears that BCM is using the term “jurisdiction” in the
general sense of the court’s authority.
We conclude that, as thoughtfully considered by Judge
Chhabria in Roundup, 544 F. Supp. 3d at 965, and Judge
Furman in General Motors, 477 F. Supp. 3d at 187–89,
whether the district court had the authority to order common
benefit fund assessments in non-MDL cases is not a question
of subject-matter jurisdiction under the circumstances of this
case, where plaintiffs’ counsel entered into a participation
agreement in exchange for common benefit work product.
This is because the MDL court “is not exercising jurisdiction
over cases or parties not before it; it is exercising jurisdiction
over the MDL. Pursuant to that jurisdiction, the [c]ourt has
authority to regulate the conduct of the MDL parties and
MDL counsel, even where such regulation affects the
interests of others.” Gen. Motors, 477 F. Supp. 3d at 189.
Thus, we conclude that the question before us is whether
the district court’s order requiring common benefit
assessments in non-MDL cases is within the scope of its
authority to regulate the conduct of the MDL counsel and
20 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
parties. 12 See id. BCM seems to recognize as much, stating
in its briefing that “the district court possessed authority over
BCM in its role as counsel in the cases in which BCM was
representing claimants with cases in the MDL proceeding.”
On this question, we are persuaded by the Third Circuit’s
reasoning in In re Avandia Mktg., Sales Pracs. & Prods.
Liab. Litig., 617 F. App’x 136, 141–44 (3d Cir. 2015), in
which the court, albeit in an unpublished disposition,
considered circumstances remarkably similar to this case
and concluded that the district court acted within its
authority. In that case, a law firm entered into a participation
agreement with the MDL plaintiffs’ steering committee and
agreed to pay a percentage of its clients’ recoveries,
including in non-MDL cases, in exchange for use of the
steering committee’s work product. Id. at 138. The district
court incorporated “a materially-identical form agreement”
12
Our decisions in Hartland v. Alaska Airlines, 544 F.2d 992 (9th Cir.
1976), and Vincent, 557 F.2d 759, are not to the contrary. In Hartland,
we addressed the district court’s authority to require an assessment from
a claimant who had not filed a lawsuit in any court and had not signed a
stipulation regarding the use of consolidated discovery. 544 F.2d at 996.
We stated that the district court did not have “even a semblance of
jurisdiction—original, ancillary or pendent—to order anything or
anybody, and least of all to compel lawyers who were not parties to the
action to pay $3,250 into a fund. There was just ‘no action’ pending
anywhere.” Id. at 1001. In Vincent, we followed Hartland and stated
that “‘nonparties,’ people who have never been made parties to a suit
anywhere, cannot confer [subject-matter] jurisdiction by failing to raise
their voices . . . in protest against the attempted exercise of jurisdiction.”
Vincent, 557 F.2d at 766. Neither of these cases addressed the issue
presented here—whether an MDL court, with unquestioned jurisdiction
over counsel in the MDL, may enforce a participation agreement,
incorporated into a court order, against recoveries in counsel’s non-MDL
cases. Thus, the subject-matter jurisdiction concerns noted in Hartland
and Vincent do not apply in this case.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 21
into an order establishing a common benefit fund to
compensate the steering committee. Id. The law firm used
the MDL steering committee’s work product in its state court
cases, but after settling all its cases in the MDL and in state
court, it objected to the applicability of the assessment to its
state court cases. Id. at 139. The district court concluded
that all the settled claims were subject to the common benefit
assessment. Id.
The Third Circuit affirmed, concluding that the law firm
was bound by the district court’s common benefit order and,
because the participation agreement was incorporated into
that order, “a breach of the agreement would be a violation
of the order.” Id. at 142 (quoting Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 381 (1994)). The court further
explained that “[b]ecause a district court has jurisdiction to
determine whether one of its orders has been violated, it may
adjudicate whether an agreement incorporated into a court
order has been breached.” Id. (citing Kokkonen as
describing this power as within the court’s “ancillary
jurisdiction”). Therefore, if a participation agreement is
incorporated into a court order, the district court has
“jurisdiction to determine whether [the law firm] breached
that agreement and, if so, to remedy that breach.” Id.
Finally, the Third Circuit rejected the law firm’s
argument that it was “finding subject-matter jurisdiction by
agreement of the parties.” Id. at 143. “The agreement
itself,” the court explained, “is not the source of the [d]istrict
[c]ourt’s authority.” Id. Instead, “the [d]istrict [c]ourt’s
authority over this dispute arose from its responsibilities to
appoint and supervise a coordinating committee of counsel.
The agreement was simply incorporated into an order the
[d]istrict [c]ourt was empowered to issue.” Id.
22 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
Here, as in Avandia, BCM voluntarily entered into a
participation agreement with Plaintiffs’ Lead Counsel and
agreed to assessments against its clients’ recoveries in non-
MDL cases in exchange for access to MDL common benefit
work product. 13 The participation agreement was explicitly
incorporated into a district court order. And BCM took
advantage of the terms of the participation agreement “when
it repeatedly accessed common benefit work for the good of
its clients, and when it applied for and received payments of
common benefit funds for its own common benefit work,
including its state court work.” In re Bard IVC Filters
Prods. Liab. Litig., 603 F. Supp. 3d at 833.
Therefore, we conclude that the district court acted
within its authority when it ordered assessments to establish
a common benefit fund to compensate counsel for common
benefit work, and when it enforced the incorporated
participation agreement by denying BCM’s motion to
exempt its non-MDL cases from the assessments. And, as
we explain next in Section IV.C, we conclude that the cases
BCM relies upon to argue that the district court lacked
authority to order common benefit assessments are
distinguishable and do not require a contrary result.
13
In its reply brief, BCM asserts that we should not rely on Appellees’
argument that it consented to the holdbacks under the participation
agreement because to do so would violate the unconstitutional conditions
doctrine. Appellees, however, did not inject this issue into the case; the
district court relied in part on BCM’s consent. Because BCM’s opening
brief did not raise an unconstitutional conditions challenge to the district
court’s reliance on BCM’s consent to the participation agreement, we
decline to entertain that late challenge. See Bazuaye v. I.N.S., 79 F.3d
118, 120 (9th Cir. 1996) (“Issues raised for the first time in the reply
brief are waived.”) (citing Eberle v. City of Anaheim, 901 F.2d 814, 818
(9th Cir. 1990)).
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 23
C
To support its arguments challenging the scope of the
district court’s authority, BCM relies on four cases
concluding that a district court lacked the authority to require
non-MDL claimants to contribute to common benefit funds:
two of our cases from the 1970s, Hartland, 544 F.2d 992,
and Vincent, 557 F.2d 759; an Eighth Circuit decision, In re
Genetically Modified Rice Litigation, 764 F.3d 864 (8th Cir.
2014); and the district court’s order in Roundup, 544 F.
Supp. 3d 950. However, these cases do not determine
whether a district court has authority to order assessments
against the recoveries of claimants in non-MDL cases when
their counsel have voluntarily entered into a participation
agreement that is incorporated into a court order and requires
such assessments in exchange for access to common benefit
work product. Therefore, these cases do not answer the
narrow issue presented here, and BCM’s reliance on these
cases is misplaced.
Moreover, none of these cases stands for the broad
proposition that BCM advocates for here: that a district court
always lacks authority to order common benefit assessments
against recoveries in non-MDL cases. Rather, these cases
stand for the unremarkable proposition that a district court
lacks authority to order assessments against the recoveries of
claimants who are “complete strangers” to the MDL the
court is managing. Cf. Gen. Motors, 477 F. Supp. 3d at 187
(distinguishing cases in which the district courts sought to
impose an assessment on “complete strangers” to the
litigation pending before the court); Avandia, 617 F. App’x
at 141 (explaining that if the district court had “simply
ordered” the plaintiffs’ attorneys, as “total strangers to the
litigation, to contribute to the common benefit fund from the
settlement of its clients’ state-court cases, it would have
24 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
exceeded its jurisdiction,” but concluding that the district
court “properly exercise[d] jurisdiction to enforce [a
participation agreement]”).
1
In Hartland, we considered a holdback order that
reached the recoveries of two strangers to the MDL—one
person who had sued the airline in state court and whose case
had not been removed to federal court, and one person who
had settled with the airline without filing suit. 544 F.2d at
996–97. Importantly, unlike this case, neither claimant nor
their counsel was subject to the district court’s jurisdiction,
signed a participation agreement, or received or utilized any
common benefit work. Id. at 994–96. Although these
claimants were not litigating their claims as part of the MDL,
the defendant airline deposited a percentage of their
recoveries into a common benefit fund. Id. at 997. We
concluded that, in circumstances involving strangers to the
MDL, compelling contributions to the common benefit fund
from the non-MDL claimants was a “usurpation of power”
by the district court and therefore ordered the funds returned.
Id. at 1001–02.
2
We again considered a holdback order that reached the
recovery of a stranger to the MDL in Vincent. 557 F.2d at
764–65. After the district court entered an order requiring a
holdback from the plaintiffs’ recoveries, the defendants
petitioned the court for approval of a previously negotiated
settlement that a claimant had reached with defendants
directly without filing suit. Id. at 765. Neither the claimant
nor her attorneys had entered into a participation agreement.
See id.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 25
Relying on Hartland, we reaffirmed that a district court
does not have the power to order holdbacks from the
recoveries of claimants who had not filed suit or otherwise
used the judicial process to obtain a settlement. Vincent, 557
F.2d at 765–66. We also concluded that another claimant,
who had settled before the court appointed lead counsel and
thus could not have received any benefit from lead counsel’s
discovery efforts, could not be required to contribute to a
fund to compensate lead counsel. Id. at 766–67.
3
In In re Genetically Modified Rice Litigation, the district
court ordered holdback assessments on awards and
settlements in MDL cases but declined to order holdbacks
on plaintiffs’ recoveries in state court cases. 764 F.3d at 866.
The MDL plaintiffs’ lead counsel appealed, and the Eighth
Circuit affirmed, concluding that the district court did not
have jurisdiction to order holdbacks from state-court
plaintiffs’ recoveries. Id. at 873–74 (citing Showa Denko,
953 F.2d at 166; Hartland, 544 F.2d at 1001). 14 The Eighth
14
In Showa Denko, the Fourth Circuit held that the district court lacked
authority to require common benefit contributions from plaintiffs outside
the MDL (state court plaintiffs, plaintiffs in federal cases not transferred
to the MDL, and claimants who had not yet filed suit) because those
claimants had “not voluntarily entered the litigation before the district
court nor [had] they been brought in by process.” 953 F.2d at 164, 66.
The court concluded that the MDL statute did not give the district courts
such wide-ranging authority, concluding that “[t]he district court simply
has no power to extend the obligations of its order” to claimants “who
have not sued” or to “plaintiffs in state and untransferred federal cases”
with no relationship to, or involvement in, the MDL. Id. at 166. Unlike
BCM in this case, neither the non-MDL claimants nor their attorneys had
entered into participation agreements in which they agreed to
assessments in exchange for access to common benefit work product.
26 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
Circuit noted that “[l]ead [c]ounsel assert no independent
basis for jurisdiction over these state-court actions.” Id. at
873. And the court rejected lead counsel’s argument that,
because the district court had jurisdiction over the defendant
and plaintiffs’ counsel in the MDL, it could order
withholdings from “related” state court cases. Id. at 874.
As the Eighth Circuit explained, the state court plaintiffs
had not agreed to be part of the MDL and had not
participated in the MDL settlement, and the participation of
their attorneys in the MDL or the MDL settlement, without
more, did not provide the district court with “authority over
separate disputes between state-court plaintiffs and [the
defendant].” Id. Unlike this case, the MDL plaintiffs’
counsel had not entered into a participation agreement,
which was incorporated into a court order, and in which they
agreed to assessments in non-MDL cases in exchange for
access to common benefit work product. Thus, the state-
court plaintiffs in Genetically Modified Rice were strangers
to the MDL.
4
Finally, despite BCM’s reliance on the district court’s
decision in Roundup, that case ultimately does not help BCM
because the district court did not take a position on the issue
that is before us. In that case, while the district court
questioned its authority to order assessments from the
recovery of a claimant whose attorney signed a participation
agreement, it avoided the issue because it concluded that it
would decline to exercise any authority it had to order such
assessments. Roundup, 544 F. Supp. 3d at 968.
Like the non-MDL plaintiffs in the other cases BCM cites, these
plaintiffs were strangers to the Showa Denko MDL.
LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA 27
Moreover, as the district court here described at length,
the Roundup decision is distinguishable from this case for
several reasons. See In Re Bard IVC Filters Prods. Liab.
Litig., 603 F. Supp. 3d at 828–30. These differences include
the scope of the requested assessments, whether access to the
common benefit work product provided a benefit to
participating counsel, whether access to such work product
was limited to attorneys who signed the participation
agreement, whether that work product advanced the
participating counsel’s cases, whether lead counsel were
adequately compensated without common benefit payments,
whether the common benefit work prompted the defendant
to settle, and the timing of the courts’ orders setting the
common benefit assessments. Id. Therefore, we conclude
that the district court’s analysis in Roundup, while thorough
and thoughtful, does not alter our conclusions.
* * * *
Contrary to BCM’s arguments, the district court did not
assert its authority to order holdbacks in non-MDL cases
simply because the claimants in those cases just “happened
to hire a lawyer who represents a plaintiff within the MDL.”
And unlike the claimants in the cases BCM relies upon,
neither BCM nor its non-MDL clients were complete
strangers to the MDL. Instead, BCM entered into a
participation agreement, which was incorporated in the
district court’s order establishing a common benefit fund,
whereby BCM agreed to assessments against its non-MDL
cases in exchange for access to common benefit work.
Moreover, BCM reaped the benefit of this agreement by
repeatedly accessing common benefit work product and
using it in its non-MDL cases. Therefore, after knowingly
and voluntarily entering the participation agreement, BCM
28 LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA
cannot now complain that the district court lacked authority
to enforce its orders incorporating that agreement.
V
Although there are circumstances under which a district
court lacks the authority to order holdbacks from non-MDL
cases, see, e.g., Hartland, 544 F.2d at 1001–02, the district
court did not exceed its authority here. BCM entered into
the participation agreement, which was incorporated into a
court order, and agreed to hold back assessments against its
clients’ recoveries in exchange for access to common benefit
work product. Under these circumstances, the district court
appropriately exercised its authority to enforce its orders
establishing a common benefit fund, and therefore properly
denied BCM’s motion to exempt its non-MDL cases from
common benefit assessments.
AFFIRMED.