The Suspect Restitutionary Basis for Common Benefit Fee Awards in Multi-District Litigations

• Published in: Texas law review Vol. 101; no. 7; pp. 1653 - 1677
• Main Author: Silver, Charles
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01.07.2023
• Subjects: Agreements; Attorneys; Beneficiaries; Class action lawsuits; Equity; Federal court decisions; Federal Rules of Civil Procedure; Fees & charges; Law; Products liability; Restitution; Everglades
• ISSN: 0040-4411; 1942-857X

MDL judges cling to this rationale firmly.10 With the singular exception of Judge Vince Chhabria, whose thoughtful opinion in In re Roundup Products Liability Litigation11 may mark a turning point, MDL judges appear to consider it settled law.12 But it is not and never could be-first and foremost because it is doctrinally incoherent. The Common Fund Doctrine Discussions of the common fund doctrine typically start with Trustees v. Greenough,21 a case whose paradigm facts nicely frame the purpose and limits of the equitable doctrine. 22 The restitution claimant in Greenough was a holder of bonds secured by a trust indenture. In such a case there is no question of imposing a liability for unrequested benefits that should have been the subject of contract-benefits that the recipient should have had a chance to refuse.26 Recovery from a fund that was already under the supervision of the court guaranteed that no beneficiary would be required to make an expenditure; the courts merely applied the usual rule that a trust bears the expense of its own administration. "33 It also noted with approval that the district court's order imposing an 8% tax on lawyers' contingent fees applied to all IRPAs "except those attorneys who had actively participated in the pre-trial activities," which