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Brooklyn Law Review

Abstract

Multidistrict litigation (MDL) courts routinely use common benefit orders and fee assessments to compensate the attorneys who generate work product that benefits the broader plaintiff class. Courts’ largely unguided approach to setting assessment percentages—often justified through invocation of a court’s inherent authority—leaves participating counsel uncertain about their eventual recovery, invites arbitrary midstream changes, and risks windfalls unconnected to the actual utility of common benefit work product. This Note argues that in order to guarantee the continued efficiency of the MDL system, judges should adopt a standardized fee assessment framework that is predictable from the outset and proportionate to the ultimate recovery size. Scholars and courts have recognized that the status quo of common benefit fee assessments is vulnerable to weak judicial oversight, repeat-player dynamics, and settlement pressures that can tempt self-dealing by MDL lead counsel. But the existing conversation lacks a simple, generally applicable mechanism that both constrains judicial discretion and reduces the likelihood of disproportionate assessments when common benefit work product is not useful. This Note responds by proposing a sliding-scale common benefit fee assessment set at the outset of litigation, with decreasing percentages as recoveries increase and a court-imposed cap on total assessed fees. Grounded in the premise that larger recoveries do not necessarily correlate with greater common benefit efforts, this proposal argues that predictable fee structures can reduce fee disputes while still compensating common benefit attorneys and lead counsel for the gargantuan task of managing and litigating MDLs. This Note presents an easily administrable framework for common benefit fees that improves transparency and predictability, reduces windfall risk, and strengthens the perceived legitimacy of the MDL system.

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