Common Benefit Fee 5% - Did You Pay It?

Jane Akre
February 22, 2019

Mesh Medical Device News Desk, February 22, 2019 ~ Have you received a pelvic mesh settlement? Are you about to? Please understand there is a fee involved that you may not have to fully pay.  

Common Benefit Fee (CBF)

A lawyer recently told me:

“I wanted to make sure that you realized that common benefits assessments don’t come out of the plaintiffs’ recovery, they come out of the fee from the representing attorney.”

He said since the multidistrict (MDL) leadership is doing all of the work, they need to be reimbursed.

There were so many pelvic mesh cases, they were consolidated into multidistrict litigation, similar to a class action, to be prepared for trial. At one time there were more than 104,000 pelvic mesh cases filed against seven manufacturers.

When a woman receives a settlement from a mesh manufacturer the lawyer generally takes 40% for his effort while she receives the remaining 60% minus any medical liens, Medicaid, Medicare, loans etc.

Which side should pay that 5% is the question.

Why 5%?

Prolift partial explant from Gross v. Ethicon trial

Like all MDLs or mass torts, there is a fee that the lawyers who did the initial discovery are reimbursed.

To prepare for pelvic mesh trials, they flew to Europe to interview and depose the doctors who did the initial research on pelvic mesh and they contracted experts and had to pay for their reports. They traveled a great bit to put together the research that would lay the groundwork for the narrative that would be told to jurors in the mesh trials. They paid out of their pocket.

The 5% comes out of every mesh settlement or recovery at trial so the attorneys who did the initial work can be reimbursed for the dollars they advanced.  (Should that include a private jet to Paris with their wife? Probably not.)

I tell him that my experience is different, or at least the experience of the women I talk to.  I’m hearing from MND readers, that the 5% common benefit fee came out of their 60% of the settlement dollars!

So Who Pays?

So the question remains, who pays the 5% - the plaintiff or her lawyer?

The lawyer in question continues:

“CBF should be broken into 2 parts- Fee and Cost. Fee should ALWAYS come from the attorneys’ fee. If an attorney is billing this to the client they should be sued. That is absolutely unethical. Cost is allowed to be taken from the client. These are the costs the MDL leadership has spent, such as flying to see the judge, paying for expert reports (these are very expensive, even before going to trial), paying for hosting documents and document review platforms. Most firms will bill costs to the client as it is allowed. Our rule of thumb is that we will eat cost in the event billing cost to the client would result in us receiving more money than them (this is very rare, but can happen in cases with low/nuisance value where we have also spent a lot of records acquisition, etc).”

In other words, lawyers pay a fee to the common benefit fund to reimburse the initial researchers. I ask again, are you sure?  Many women end up paying the 5% out of their portion of the settlement.

He continues:

“Absolutely, the CBFee (not cost – which is usually around 3% depending on the litigation) comes from the attorney’s 40%. That’s a huge reason the fee for mass torts is 40% and not 33%, because assessments come out too. Judge Goodwin shouldn’t have to specify, any licensed attorney should know that! It’s similar to if I need local counsel in X state to file the case for me, their fee comes out of my portion.
There honestly needs to be a MDL bar,  just like there is a patent bar."

So Who Paid the 5% in your case?

Bottom line - Your attorney should pay at least 3% of that 5% to reimburse other attorneys. You may be on the hook for the costs your law firm has incurred such as plane trips, hotels, flying to see the judge.

The only exception to the above might be in your retainer agreement with your law firm. Does it specify that you, the plaintiff, is supposed to pay the entire 5%?

If this is not how yours turned out can you contact me? I'm doing some research in preparation for a story. Thank you in advance. Names need not be used for any eventual story but let's talk!

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