Document Type
Article
Publication Title
Journal of Legal Analysis
Publication Date
2021
ISSN
2161-7201
Page Number
558
Keywords
multidistrict litigation, attorney fees, fee allocation, mediation
Disciplines
Law | Legal Profession | Litigation
Abstract
As consolidated multidistrict litigation has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the National Football League (NFL) Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the twenty-six firms involved sparked two additional years of litigation. We explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. Participating firms assess the relative contribution of other firms to the litigation, and then optimization or Bayesian techniques arrive at a consensus or compromise fee allocation. Our methods are intuitively easy to understand, enable broad participation, and are resistant to collusion or other strategic behavior, making them likely to be accepted by the firms involved. We thus provide courts with an important mediation tool or decision rule for these fee division disputes.
Recommended Citation
Edward K. Cheng, Paul H. Edelman, and Brian T. Fitzpatrick,
Distributing Attorney Fees in Multidistrict Litigation, 13 Journal of Legal Analysis. 558
(2021)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1246