I. Introduction
Multidistrict litigation (MDL) has become the dominant vehicle for complex civil litigation in federal courts. Under 28 U.S.C. § 1407, related cases may be centralized for coordinated pretrial proceedings, promoting efficiency and consistency. Today, MDLs account for more than half of all federal civil dockets. With this growth has come increased scrutiny of how attorneys’ fees are allocated through Common Benefit Funds (CBFs). While these funds are essential to fairly compensate lawyers who provide services benefitting all plaintiffs, the process for dividing them has too often been plagued by delay, opacity, and intra-bar conflict. The result is unnecessary litigation, reputational harm, and at times pointed judicial criticism.
II. The Current Challenge
The traditional allocation model relies heavily on leadership counsel negotiating allocations among themselves and later seeking judicial approval. This approach suffers from several recurring flaws:
– Perceived inequity – Non-leadership firms who contribute significant discovery or trial work may be excluded or undervalued.
– Opacity – Courts and clients rarely see clear criteria for allocation.
– Delay and expense – Fee disputes often persist long after settlements are finalized.
– Erosion of trust – Fee battles undermine collegiality within the bar and public confidence in the system.
II-A. The Public and Judicial Backlash
Perhaps the greatest danger lies in the public perception of fee disputes. High-profile MDLs such as Roundup generated headlines not for the recoveries obtained for injured plaintiffs, but for the internecine battles among plaintiffs’ firms over fees. Reports invoking “greed” and “backroom deals” reinforce negative stereotypes about lawyers and overshadow the justice achieved for claimants.
Judges themselves have voiced frustration. In In re Vioxx Products Liability Litigation, Judge Eldon Fallon observed that “attorney infighting over fees threatens to tarnish the public’s view of the fairness of MDL proceedings.” Similarly, in In re Zyprexa Products Liability Litigation, Judge Jack Weinstein lamented that fee disputes “divert attention from the injured parties and the purpose of the litigation itself.”
Such judicial commentary underscores the risk: unresolved or opaque fee allocation processes not only generate bad publicity but also call into question the integrity of the MDL system as a whole.
III. A Positive Model: The Bard MDLs
By contrast, the Bard MDLs (In re Bard IVC Filters Products Liability Litigation and In re C.R. Bard Pelvic Repair Systems Litigation) demonstrate the effectiveness of a structured process led by a neutral. In those proceedings, a retired judge was appointed to oversee the CBF process from the outset.
That approach featured:
– Early appointment of the neutral with authority to monitor time and expense submissions.
– Regular reporting to ensure transparency and discipline.
– Objective criteria consistently applied to all counsel.
– Final recommendations made to the court, preserving Article III authority while reducing the burden on the MDL judge.
The Bard approach produced confidence among counsel and expedited judicial review, avoiding the years of contentious litigation that have plagued other MDLs.
III-A. Moving Beyond the “Accountant Model”
In the early wave of MDLs, Judge Eldon Fallon, who presided over In re Vioxx Products Liability Litigation, recommended the appointment of an accountant to manage the flow of time and expense submissions in order to streamline the process. While practical at the time, that model has proven insufficient for today’s MDLs, where billions of dollars and reputational consequences are at stake.
Today, courts have access to a robust pool of retired federal and state judges with unparalleled experience in mass torts and coordinated litigation. These former trial judges possess a deeper understanding of attorney work quality, case management, and the dynamics of MDL leadership. Most importantly, they bring the trust and credibility of the judiciary itself.
Unlike an accountant, who can track hours and expenses but not meaningfully assess the value of contributions, a retired judge is uniquely positioned to evaluate the quality and strategic significance of counsel’s work. Moreover, the mechanical aspects of time and expense reporting can now be managed by sophisticated software platforms, ensuring accuracy and efficiency without displacing judicial expertise.
The result is a hybrid model: technology handles the mechanics, while a neutral judge brings judgment, credibility, and fairness to the evaluation and recommendation process. This evolution has transformed CBF administration from a bookkeeping exercise into a judicially grounded, confidence-building mechanism.
IV. Best Practices Going Forward
Based on these lessons, the following best practices should be adopted nationally:
1. Early Appointment of a Qualified Neutral – A retired judge or experienced mediator in mass torts should be engaged early, authorized to oversee submissions and evaluate contributions.
2. Regular Monitoring and Reporting – Quarterly submissions and interim reports promote transparency and discipline.
3. Clear Evaluation Criteria – Contributions should be measured by objective standards, including leadership roles, discovery, motion practice, trial risk, and facilitation of settlement.
4. Final Neutral Recommendation or Consent Agreement – The neutral should either submit a consent agreement negotiated among counsel or provide a reasoned recommendation to the court. The neutrality of the process gives confidence among all attorneys and the court, since the outcome is either a consensus or a balanced recommendation. This structure also makes the MDL judge’s role easier, shifting focus from refereeing attorney conflicts to exercising oversight.
5. Flat or Capped Compensation for the Neutral – This ensures efficiency and avoids unnecessary cost inflation.
V. Conclusion
The MDL system is indispensable to modern civil litigation, yet its fee allocation practices remain a weak link. When attorneys fight over fees, clients and the public lose confidence in the fairness of the system, and judges are forced into the uncomfortable role of referee.
By adopting uniform best practices—anchored in neutrality, transparency, and early oversight—courts can prevent wasteful disputes, protect the reputation of the trial bar, and strengthen the legitimacy of the MDL system. The Bard MDLs provide a roadmap. It is time to make that model a national standard.
