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Parker Waichman, LLP, et al. v. Arnold Levin, et al.

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 20-12100 · judgment June 9, 2021


Certiorari denied · January 10, 2022
Pre-decision estimate: 6% cert probability (95% interval 4%–11%)

Before the decision, about 1.6× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, an Eleventh Circuit decision below, and a business petitioner.

Questions presented

The questions concern three subjects: (1) the authority of a court sitting in diversity jurisdiction to allocate contractual attorney fees from individual settlements following remand from an MDL; (2) the contours of the equitable common fund doctrine; and

  1. the standard for findings to support an award of attorney fees following remand from an MDL. The questions presented are:

  2. Does state law govern under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) and Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975), or does inherent federal equitable power allow the fashioning of an award by the transferor court?

  3. If the use of equity is proper, what standard governs: the common fund doctrine as defined by Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) and Alyeska, or the common benefit doctrine developed for MDL fee awards?

  4. Does Hensley v. Eckerhart, 461 U.S. 424, 438

  5. allow a transferor court sitting in diversity to allocate contractual fees from individual settlements based on findings by an MDL-transferee court involving a class action settlement, or is the transferor court required to provide its own “clear explanation” of its award?

Counsel of record

For petitioner
Jimmy R. Faircloth Jr.
Faircloth, Melton & Sobel, LLC

For respondent
Sandra Lucille Duggan
Levin Fishbein, et al.

Case

Subject area
Attorneys (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Order
Order list, January 10, 2022 · Certiorari denied

Proceedings

  1. Jan 10 2022
    Petition DENIED.
  2. Dec 15 2021
    DISTRIBUTED for Conference of 1/7/2022.
  3. Dec 01 2021
    Brief of respondents Arnold Levin, et al. in opposition filed.
  4. Nov 02 2021
    Petition for a writ of certiorari filed. (Response due December 6, 2021)