In re: BARD IVC FILTERS PRODUCT LIABILITY LITIGATION
No. 22-15872
United States Court of Appeals for the Ninth Circuit
August 24, 2023
D.C. No. 2:15-md-02641-DGC
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re: BARD IVC FILTERS PRODUCT LIABILITY LITIGATION,
DORIS JONES; еt al*, 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 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. 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.
David G. Campbell, District Judge, Presiding
* The court is not listing all approximately 8,600 plaintiffs.
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 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
Hоward 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 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 & Scarbоrough LLP, Atlanta, Georgia; Kasey Curtis, Reed Smith LLP, Los Angeles, California; for Defendants-Appellees.
** 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.
OPINION
BADE, Circuit Judge:
Appellants, the Law Offices of Ben C. Martin and the law firm Martin Baughman, PLLC (collectively, BCM), argue
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 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 (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.
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 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 participating counsel, and that Plaintiffs’ Lead Counsel and members of the PSC would automatically be considered participating counsel.5 The order further explained that
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
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 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
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
The district court also conсluded 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 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
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
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 оn 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
Generally, “[a] decision is ‘final’ under
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 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
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.2d 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
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
B
Indeed, BCM does not dispute that the district court had the authority to order common bеnefit assessments against the recoveries of its clients with cases in the MDL. Instead, BCM argues that the
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 commоn 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 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”
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
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..
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 рarticipation 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.
C
To support its arguments challenging the scope of the district court‘s authority,
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 plаintiffs’ 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 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 clаimants 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 еntered into a participation agreement. See id..
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
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
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 casе, 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 othеr cases BCM cites, these plaintiffs were strangers to the Showa Denko MDL.
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 сommon 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 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.