IN RE: LAW OFFICES OF BEN C. MARTIN V. BABBITT & JOHNSON PA, ET AL, No. 22-15872 (9th Cir. 2023)
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Appellants, the Law Offices of Ben C. Martin and the law firm Martin Baughman, PLLC (collectively, BCM), argued 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.
The Ninth Circuit affirmed the district court’s order. 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. 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 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. The panel affirmed the district court’s order denying claimants’ motion to exempt non-MDL cases from common benefit fund assessments.
Court Description: 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. 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.
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