Third Circuit disposition — 02-4020

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-4020, 02-4021, 02-4074, 03-2627, 03-2695, 03-2766
& 03-4830
IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/
DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
LOIS GOOCH-KIEL and LINDA L. MARULL,
Appellants in No. 02-4020
RONALD R. BENJAMIN*,
Appellant in No. 02-4021
*Pursuant to Rule 12(a), F.R.A.P.
FLEMING & ASSOCIATES, L.L.P., individually and on
behalf of those clients subject to a 6% or 4% attorneys’ fee
assessment,
Appellant in No. 02-4074
LOPEZ, HODES, RESTAINO, MILMAN & SKIKOS,
Members of the Plaintiffs’ Management Committee and
ROBINSON, CALCAGNIE & ROBINSON,
Appellants in No. 03-2627
CAROL BLOOM, JERRIE RAWLS, NORMA JEAN

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NORSE, and TAMMY STATEN, and their counsel, THE
NON-PMC REFUND COUNSEL,
Appellants in No. 03-2695
NISEN & ELLIOTT, EDWARD T. JOYCE &
ASSOCIATES, P.C., BURKE & BURKE and THE LAW
OFFICES OF PATRICK J. SHERLOCK,
Appellants in No. 03-2766
RANDY HAGUE, SAUNDRA J. SCHAAD, NICHOLAS F.
ARACE, LISA LENEE BRATTON, and their attorney in this
matter, BRIAN S. RIEPEN,
Appellants in No. 03-4830
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
MDL No. 1203
District Court Judge: The Honorable Harvey Bartle, III
Argued on October 27, 2004
Before: NYGAARD, AMBRO and GARTH, Circuit Judges
(Filed: March 10, 2005)

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Bruce A. Finzen
Gary L. Wilson
Stephanie J. Kravetz
Robins, Kaplan, Miller & Ciresi, L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Attorneys for Appellants
Lois Gooch-Kiel and Linda L. Marull
George M. Fleming
Sylvia Davidow
Rand P. Nolen
Fleming & Associates, LLP
1330 Post Oak Blvd., Suite 3030
Houston, TX 77056
Mike O’Brien
Mike O’Brien, P.C.
1330 Post Oak Blvd., Suite 2960
Houston, TX 77056
Attorneys for Appellant
Fleming & Associates, LLP
Ronald R. Benjamin
Law Office of Ronald R. Benjamin
126 Riverside Drive
P.O. Box 607
Binghamton, NY 13902-0607

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Attorney for Appellant
Ronald R. Benjamin
Jonathan Massey (argued)
7504 Oldchester Road
Bethesda, MD 20817
Attorney for Appellants
Lois Gooch-Kiel, Linda L. Marull, Fleming & Associates,
LLP and Ronald Benjamin
Janet G. Abaray (argued)
Beverly H. Pace
Lopez, Hodes, Restaino, Milman &
Skikos
312 Walnut Street, Suite 2090
Cincinnati, OH 45202
Attorneys for Appellants
Lopez, Hodes, Restaino, Milman & Skikos,
and Robinson, Calcagnie & Robinson
Douglas G. Thompson, Jr. (argued)
L. Kendall Satterfield
Tracy D. Rezvani
Finkelstein, Thompson & Loughran
1050 30 Street, N.W.th
Washington, D.C. 20007
Attorneys for Appellants

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Carol Bloom, Jerrie Rawls, Norma Jean Norse,
and Tammy Staten, and their counsel, the
Non-PMC Refund Counsel
Michael H. Moirano (argued)
Nisen & Elliott
200 West Adams Street, Suite 2500
Chicago, Illinois 60606
William J. Winning
Cozen & O’Connor
1900 Market Street
Philadelphia, PA 19103
Attorneys for Appellants
Nisen & Elliott, Edward T. Joyce & Associates, P.C.,
Burke & Burke and the Law Offices of Patrick J. Sherlock,
Howard J. Bashman (argued)
1250 Virginia Drive, Suite 1000
Fort Washington, PA 19034
Attorney for Appellants
Randy Hague, Saundra J. Schaad,
Nicholas F. Arace, Lisa Lenee Bratton,
and their attorney in this matter, Brian S. Riepen,
Arnold Levin (argued)
Michael D. Fishbein (argued)
Fred S. Longer

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Arnold & Levin
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Charles R. Parker
John Roberson (argued)
Hill & Parker
5300 Memorial Drive, Suite 700
Houston, TX 77077
John J. Cummings, III
Cummings, Cummings & Dudenhefer
416 Gravier Street
New Orleans, LA 70130
Attorneys for Appellees
Plaintiffs’ Management Committee, Class Counsel, Plaintiffs’
Counsel and Common Benefit Attorneys
Peter L. Zimroth
Arnold & Porter
399 Park Avenue
New York, NY 10022
Attorney for Appellee
American Home Products Corporation (Wyeth Corporation)

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On March 11, 2002, AHP became known as Wyeth. We1
will refer to Wyeth throughout this opinion, even though many
matters occurred during AHP’s stewardship and before Wyeth came
into the picture.
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GARTH, Circuit Judge:
These seven appeals have been filed by counsel to
various claimants in the Diet Drugs Product Liability
Multidistrict Litigation (“MDL 1203”), charging essentially that
the District Court abused its discretion in awarding and
allocating an interim award of attorneys’ fees. In the alternative,
several of the complaining attorneys petition this Court to issue
a writ of mandamus reversing the award. Because we conclude
that the orders from which the appeals were taken, Pretrial Order
Nos. 2622 & 2859, are not final and appealable orders, we will
dismiss each of these appeals for want of appellate jurisdiction.
We will also deny the Petition because the circumstances do not
warrant relief by way of mandamus.
I.
In November 1999, American Home Products
Corporation (“AHP”), which had sold two prescription drugs1
for the treatment of obesity, fenfluramine and dexfenfluramine,
marketed as “Pondimin” and “Redux,”entered into a Nationwide
Class Action Settlement Agreement (the “Settlement
Agreement”) with a coalition of plaintiffs’ attorneys. These
attorneys represented those individuals, in both MDL 1203 and
the coordinated state class actions, who had sought monetary

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$40 million was drawn from the Fund A Legal Fee Escrow2
Account; $40 million from the Fund B Legal Fee Escrow Account;
and $80 million from the MDL 1203 Fee & Cost Account. Before the
allocation among the various counsel was approved, the District
Court deducted $6,277,088.75 from the allocable funds for the Levin
Fishbein firm as pertaining to services performed after June 30, 2001.
The deduction reduced the total award of interim fees to
$153,722,911.25.
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damages and other relief from their purchase and ingestion of
the diet drugs.
Comprehensive in its description of the various classes or
categories of claimants which it comprised, the Settlement
Agreement also made provision for the payment of legal fees.
In particular, the Settlement Agreement established two
accounts (to be funded by Wyeth) – the Fund A Legal Fee
Escrow Account and the Fund B Legal Fee Escrow Account –
to provide for an appropriate award of attorneys’ fees.
Additionally, the District Court ordered a percentage of fees
from settlements or other recoveries achieved by opt-out
plaintiffs in individual actions to be paid into a separate account
– the MDL 1203 Fee & Cost Account – to compensate the
Plaintiffs’ Management Committee (the “PMC”) for its common
benefit work in MDL 1203. The District Court’s interim award
of attorneys’ fees ($153,722,911.25) was comprised of funds
from all three accounts.2
The overarching question presented by four of the seven

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Fleming & Associates, L.L.P (02-4074); Lois Gooch-Kiel3
and Linda L. Marull (02-4020); Ronald R. Benjamin (02-4021); and
Randy Hague, et al. (03-4830). Arising from Pretrial Order No.
2622, these appeals raise three principal challenges to the MDL 1203
Fee & Cost Account assessments. First, they contest the District
Court’s general finding that the PMC conferred a substantial benefit
on all plaintiffs in MDL 1203, regardless of the receipt of tangible
benefits. Second, they challenge the District Court’s refusal to
conduct individualized determinations to consider the existence of
special circumstances. Such arguments, whether cast in a
constitutional mold or considered under an abuse-of-discretion
standard, may be reduced to an attack on the procedures employed by
the District Court in allocating fees from the MDL 1203 Fee & Cost
Account. And third, they challenge the $80 million award from the
MDL 1203 Fee & Cost Account as unfair and unreasonable. All four
appeals have been consolidated by order of this Court.
Inasmuch as the Hague appeal was untimely, it raises the
additional question whether the District Court abused its discretion
in denying counsel’s motion for an extension of time pursuant to Fed.
R. App. P. 4(a)(5) (no excusable neglect). We address this question
later in the opinion.
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current appeals is whether the District Court properly3
sequestered a percentage of funds from individual settlements
or recoveries to compensate the PMC in cases where individual
plaintiffs and their attorneys did not utilize the PMC’s discovery
or trial preparation materials and thus received no ostensible
benefit from the PMC. These four appeals, consequently, focus
only on that portion of the interim fee award drawn from the

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Lopez, Hodes, et al. (03-2627); Carol Bloom, et al. (03-4
2695); and Nisen & Elliott, et al. (03-2766). Essentially, these
appeals, which are taken from Pretrial Order No. 2859, argue that the
District Court abused its discretion by delegating authority to allocate
common benefit fees to a self-interested committee of lead counsel.
The appeals, however, raise several additional issues. The Lopez,
Hodes, et al., appeal, for instance, argues that the Fee & Cost
Allocation Committee (the “FCAC”) failed to employ the factors in
Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000), and
thus used improper procedures in allocating the interim award. The
Carol Bloom, et al., appeal challenges the District Court’s denial of
fees for Non-PMC Refund Counsel’s prosecution of nationwide class
claims for purchase price refunds. It also challenges the District
Court’s failure to make any incentive award to plaintiffs in the
purported class actions for refund claims. The Nisen & Elliott, et al.,
appeal argues that the District Court erred in failing to consult with
the State Court Judicial Advisory Committee prior to awarding any
attorneys’ fees, thereby contravening the Settlement Agreement.
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MDL 1203 Fee & Cost Account. The three remaining appeals4
raise the question of whether the District Court fairly allocated
the interim fee award among the PMC, Class Counsel and other
common benefit attorneys claiming entitlement to share in the
award.
A threshold issue here, however, is that of our appellate
jurisdiction, for absent jurisdiction we cannot decide the many
issues raised before us. See Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 379 (1981). We are confronted with
appeals from an award of attorneys’ fees, which, by their interim
nature, may lack the necessary elements of finality to properly

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See, e.g, In re Diet Drugs, 385 F.3d 386 (3d Cir. 2004); In5
re Diet Drugs, 369 F.3d 293 (3d Cir. 2004); In re Diet Drugs, 282
F.3d 220 (3d Cir. 2002).
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invoke this Court’s appellate jurisdiction. At the outset,
therefore, but not before we describe the nature of the interim
fee award within the broader context of this litigation, we turn
to the resolution of our jurisdiction.
Some of the details of this complex case can be found in
the opinions from this Court dealing with issues concerning the
Settlement Agreement and its Amendments. However, other5
facts less relevant to the prior appeals, or cursorily mentioned in
prior opinions, assume greater salience here, thus warranting
renewed and extended discussion. The relevant, although
abbreviated, aspects of this factual history are reproduced here
and taken largely from the District Court’s descriptions in its
three pretrial orders. See Pretrial Order Nos. 1415, 2622 and
2859.
II.
A.
Between 1995 and 1997, four million people took
Pondimin and two million people took Redux. In September
1997, the U.S. Food and Drug Administration (“FDA”) issued
a press release reporting abnormal echocardiograms in a “higher
than expected percentage of” patients taking the drugs. See
Press Release, FDA, FDA Announces Withdrawal of

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Fenfluramine and Dexfenfluramine (Fen-Phen) (Sept. 15, 1997).
Subsequent studies suggested that the drugs may have been
linked to serious cardiopulmonary side effects, including heart-
valve regurgitation (the reverse flow of blood through a closed
valve of the heart) and primary pulmonary hypertension (a
progressive and fatal disease affecting pulmonary circulation).
After the withdrawal of the diet drugs, 18,000 individual
suits and 130 class actions were filed in state and federal courts.
In December 1997, the federal cases were transferred to the
Eastern District of Pennsylvania for consolidated or coordinated
pretrial purposes by the Judicial Panel on Multidistrict Litigation
pursuant to 28 U.S.C. § 1407. In November 1999, Wyeth
entered into the Settlement Agreement with users of the diet
drugs in the United States. After conducting fairness
proceedings, the District Court in the Eastern District of
Pennsylvania certified a settlement class and approved the
Settlement Agreement. See Pretrial Order No. 1415. Appeals
of Pretrial Order No. 1415 followed, with Final Judicial
Approval, as defined in the Settlement Agreement, occurring in
January 2002.
About 50,000 diet drug recipients ultimately exercised
their “initial opt-out rights” to resolve their claims independent
of the terms of the class settlement. Soon thereafter, Wyeth
settled the claims of all but 600 of these “initial opt-outs,”
including nearly all of the claims that had been pending in the
MDL 1203 proceedings as of November 1999.
Two categories of benefits were and are available to all
Class Members under the Settlement Agreement. First, Class

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Members may apply for medical monitoring and refund benefits.
These benefits differ depending upon the length of time that a
Class Member ingested diet drugs. Second, Class Members who
have serious valvular heart disease (“VHD”) may apply for
“matrix benefits.” The value of matrix benefits for Class
Members ranges from $7,389 to $1,485,000. Under the
Settlement Agreement, a particular Class Member’s benefit is
calculated based on his or her age at the time of diagnosis of a
matrix-level condition and the severity of the condition.
Recognizing the progressive nature of VHD, the Settlement
Agreement also allows for damage payments to Class Members
who develop serious levels of VHD at any time up to December
31, 2015.
Two separate funds were established under the
Settlement Agreement to provide the above benefits to Class
Members, and the AHP Settlement Trust was created to
administer them. Fund A provided compensation for all non-
matrix benefits and associated costs available under the
Settlement Agreement. Wyeth fully funded Fund A with $1
billion.
Fund B is the continuing source of matrix benefits and
associated costs. Wyeth pays into Fund B on an ongoing basis.
Ultimately, Wyeth is obligated for a total of $2.55 billion plus
accretion in Fund B benefits, minus certain credits to which it is
entitled under the Settlement Agreement. We learned at oral
argument that the Trustees have determined that all Fund A
purposes have been satisfied, resulting in the transfer of the

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At oral argument, we also learned that a proposed6
amendment to the Settlement Agreement may bring an additional $2
billion into the Settlement to respond to an additional 25,000 new
claimants. See Tr. in Nos. 02-4021, 02-4074, 02-4021 at 39.
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remaining balance of Fund A to Fund B.6
B.
The counsel fees at issue here, totaling $153,722,911.25,
were drawn from three separate accounts: the Fund A Legal Fee
Escrow Account, the Fund B Legal Fee Escrow Account, and
the MDL 1203 Fee & Cost Account. See note 2 supra. We
describe each of these accounts below.
1. Funds A & B Legal Fee Escrow Accounts (the
“settlement funds”)
With respect to the monitoring and refund benefits
afforded by Fund A, the Settlement Agreement required that
Wyeth deposit the sum of $200 million in the Fund A Legal Fee
Escrow Account to pay for the services of counsel in creating
that fund. To the extent that any balance remains in the escrow
account after payment of fees awarded by the court, that balance
will be returned to Wyeth. See Settlement Agreement at §
III.B.3.
Attorneys’ fees associated with Fund B (matrix claims)
are paid out of the Fund B Legal Fee Escrow Account. Class
Counsel have agreed that the amount of such fees shall not

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exceed $229 million, which is 9% of the $2.55 billion present
value amount of Fund B. As such, 9% of every matrix
compensation benefit awarded to a Class Member is set aside in
the Fund B Legal Fee Escrow Account. In the event a Class
Member is represented by counsel, the 9% assessment is
deducted from the individual attorney’s fee.
This cap on the award of common benefit fees in relation
to Fund B is consistent with a prior determination by the District
Court that it was appropriate to set aside 9% of the amount
recovered by plaintiffs in MDL 1203 and coordinated state
litigation to pay “common benefit fees.” See Pretrial Order Nos.
467 & 517. If the court awards less than the 9% assessments in
the Fund B Legal Fee Escrow Account, the monies not awarded
will be returned to the Class Members or individual attorneys
representing Class Members who contributed the 9% set aside.
See Settlement Agreement at § VIII.E.1.c.
2. MDL 1203 Fee & Cost Account
Pretrial Order No. 467 established the MDL 1203 Fee &
Cost Account. This order provided for the sequestration of 9%
of all payments made by the defendant in settlements in any case
transferred to MDL 1203, to be paid into the MDL 1203 Fee &
Cost Account out of individual attorneys’ share of recoveries.
See Pretrial Order No. 467. The funds so sequestered were and
are available to provide reimbursement of costs and payment of
attorneys’ fees to the PMC and other attorneys who had been

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Pretrial Order No. 16 provides, in pertinent part, that7
“[c]ommon benefit work may be assigned to counsel of record in any
state or federal action.” Id.
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authorized by the PMC, pursuant to Pretrial Order No. 16, to7
perform work for the common benefit of plaintiffs in MDL 1203
and in any coordinated state-court proceedings. Ultimately,
3,000 federal cases were subject to the 9% set-aside required by
Pretrial Order No. 467.
That order, which was extended by Pretrial Order No.
517, was also designed to facilitate state-federal coordination in
the diet drugs litigation. Pursuant to those orders, any state
action became eligible for state-federal coordination in the event
a court with jurisdiction over the state court action entered an
order requiring, among other things, the sequestration of a 6%
assessment for the MDL 1203 Fee & Cost Account. Moreover,
in exchange for access to the PMC’s work product and “trial
package,” nearly 100 separate state attorneys signed
coordination agreements, voluntarily stipulating to the 6% set-
aside in all of their state cases.
The mere sequestration of the 9% and 6% of settlement
or satisfaction proceeds did not guarantee that the PMC would
receive the full amount. To the contrary, the District Court
stated that only “upon a proper showing” would the common
benefit attorneys receive an award of counsel fees and expenses
from the MDL 1203 Fee & Cost Account, in such amounts
determined by the court in accordance with controlling law. See

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Pretrial Order No. 467 expressly limits an award of fees to8
those attorneys who were authorized by the PMC to perform common
benefit services. See id.
The Joint Petition included all fee presentations that9
conformed to the District Court’s orders according to the auditor’s
determination. The individual petitions were filed by law firms
whose time was disallowed by the auditor and thus not included in
the Joint Petition.
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Pretrial Order No. 467 at ¶ 7.8
C.
All counsel who anticipated filing an application for the
award of counsel fees and costs were required to submit their
time and expense records for examination by a certified public
accountant appointed by the District Court to “audit” these
records. See Pretrial Order Nos. 16, 1164 & 2224. The audit
procedure was designed to segregate potential fee applicants
into one of two modes for presentation of their fee requests to
the court – either through a “Joint Petition” or through
“individual petitions.” See Pretrial Order Nos. 2023 & 2224.9
Through this process, 106 different law firms submitted
applications for fees and expenses for the auditor’s review.
All of the Joint Petitioners sought to participate in the
award of fees and costs from the proceeds of the Settlement
Agreement with Wyeth (i.e., the settlement funds). The 27 firms
within the PMC constituency also sought recovery of fees and
cost-reimbursements from the MDL 1203 Fee & Cost Account

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for services provided to the District Court, the federal litigants,
and the plaintiffs in the coordinated state litigation during the
course of the MDL proceedings.
In Pretrial Order No. 2622, the District Court considered
the petitions for counsel fees and costs in connection with the
multidistrict litigation and class action settlement. With respect
to the settlement funds, the District Court determined that it was
“premature to perform a definitive percentage of recovery
analysis.” It stated:
In the usual situation the fee is sought at or near the
conclusion of litigation where the only other function
remaining is to pay out the court-approved settlement
dollars to the class members. The court is then in a good
position to review the settlement in light of the Gunter
factors. In this class action, in contrast, the settlement is
still in many respects in its early stages.
*********
Many issues regarding interpretation of the Settlement
Agreement, the operation and funding of the Trust, and
the payment of benefits to Class Members remain to be
resolved. The court is still faced with a continual flow of
contested motions and hearings on a variety of matters
which could affect the value and efficacy of the
settlement.

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In Gunter v. Ridgewood Energy Corp., 223 F.3d at 195 n.1,10
we set forth the relevant factors to be considered in setting a fee
award in common fund cases. These factors include: (1) the size of
the fund created and the number of persons benefitted; (2) the
presence or absence of substantial objections by members of the class
to the settlement terms and/or fees requested by counsel; (3) the skill
and efficiency of the attorneys involved; (4) the complexity and
duration of the litigation; (5) the risk of nonpayment; (6) the amount
of time devoted to the case by plaintiffs' counsel; and (7) the awards
in similar cases. Id. (citations omitted).
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Pretrial Order No. 2622 at 21-22. For these reasons, the10
District Court determined that it could not make a final fee
award from the settlement funds:
Questions regarding the value of the settlement and the
benefits conferred on Class Members clearly remain. See
Gunter, 223 F.3d at 195 n.1. Under the circumstances,
the court finds that it is not possible to undertake a
Gunter analysis and make a full fee award from the Fund
B Legal Fee Escrow Account at this time. . . . In addition,
the Trust has followed with an emergency motion
seeking the suspension of certain Fund A processing
deadlines . . . Again, with this issue pending, it would be
premature to make a final award of counsel fees from the
Fund A Legal Fee Escrow Account.
Id. at 24.
Nonetheless, given the “herculean effort” of the Joint

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Petitioners with respect to the class settlement, the District Court
found that it would be both fair and reasonable to make an
“interim fee award” in the amount of $80 million, consisting of
$40 million from the Fund A Legal Fee Escrow Account and
$40 million from the Fund B Legal Fee Escrow Account. A
larger award, the District Court noted, would be “inequitable
when so many Class Members are experiencing prolonged
delays in the receipt of their benefits.” A final award would
have to wait until the viability of the Settlement Agreement had
been firmly established. The District Court stated:
When the pressing issues delineated above have been
resolved and the entire picture is less clouded, Joint
Petitioners and others ruled herein to be entitled to a fee
may make further application for additional
compensation but no earlier than October 1, 2003. We
hope by that point the court will be in a better position to
make a final fee award to Class Counsel, after
consideration and application of Gunter.
Id. at 26.
The District Court next addressed the claims of the
individual petitioners, who essentially asserted that the work
they performed in the Diet Drugs litigation conferred a benefit
on the class, thus entitling them to an award from the settlement
funds. After reviewing their submissions, with two exceptions,
the District Court determined that the individual petitioners were
not entitled to any fees.
With respect to the available funds in the MDL 1203 Fee

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As previously explained, the total funds to be distributed11
from the Fund A Legal Fee Escrow Account, the Fund B Legal Fee
Escrow Account, and the MDL 1203 Fee & Cost Account were
$153,722,911.25. See note 2 supra.
Modifying Pretrial Order 467, the District Court also12
reduced the set aside to 6% in federal cases and 4% in state-
coordinated cases for future recoveries or settlements. Since that
order, we understand from representations made at oral argument that
multiple millions of dollars have been deposited into the MDL 1203
Fee & Cost Account. Further distribution from this account will
therefore be required.
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& Cost Account, the District Court awarded attorneys’ fees in
the aggregate amount of $80 million (approximately 5.13% of
the gross recovery in federal cases and 3.42% of the gross
recovery in the coordinated state litigation), subject to an
appropriate proceeding as to the allocation of that award among
the 27 firms eligible to participate therein. The remaining11
one-third of the 6% and 9% assessments, approximately $47
million, was returned without interest to those attorneys who had
deposited the funds into the MDL 1203 Fee & Cost Account.
Finally, the District Court directed that $2.5 million remain on
reserve in the MDL 1203 Fee & Cost Account as a source for
payment of ongoing expenses associated with the administration
of MDL 1203. As such, Pretrial Order No. 2622 virtually
exhausted the funds contained in the MDL 1203 Fee & Cost
Account.12
The Joint Petition further suggested that the District
Court charge Arnold Levin, Esq. and Michael Fishbein, Esq. of

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Throughout this opinion we refer collectively to all13
appealing attorneys as “Appellants,” as it would be confusing to
identify them separately, except in the rare instance such as that
presented by the Hague, et al., appeal.
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the firm Arnold & Levin, which was a member of the PMC and
lead counsel in the class action, with the task of coordinating
and developing an agreed upon allocation. The District Court
agreed with the suggestion, with some modification, finding the
request consistent with authority for allowing lead counsel to
allocate fees. The District Court thus appointed the FCAC,
consisting of five of the Joint Petitioners, to make a first attempt
at allocating the interim class fee award and the award from the
MDL 1203 Fee & Cost Account. The District Court also
provided for objections, responses and hearings regarding the
recommended allocation plan.
D.
On May 15, 2003, the District Court affirmed, with slight
modification, the FCAC’s fee allocation plan in Pretrial Order
2859, thereby authorizing the distribution of the interim fee
amounts. Directly after the District Court entered its Pretrial
Order No. 2859, certain of the appealing attorneys sought an13
emergency stay pending appeal, which was granted by this

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We learned at oral argument that the emergency stay was14
vacated and the contested interim fees were distributed to the various
attorneys to whom they had been allocated.
The PMC, Class Counsel, Plaintiffs’ Counsel and Common15
Benefit Attorneys are the appellees in this matter.
No motions to dismiss for lack of appellate jurisdiction16
were filed by the PMC and Class Counsel as to the appeals from
Pretrial Order No. 2622: Lois Gooch-Kiel, et al. (02-4020); Fleming
& Associates, L.L.P. (02-4074); Ronald R. Benjamin (02-4021); and
Randy Hague, et al. (03-4830). At oral argument, we inquired as to
whether these appeals were also without jurisdiction, and we were
informed that these appeals were subject to the same jurisdictional
challenge as the other appeals.
Randy Hague, Saundra J. Schaad, Nicholas F. Arace, Lisa17
Lenee Bratton, and their attorney in this matter, Brian S. Riepen (No.
03-4830).
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Court. Thereafter, the PMC and Class Counsel moved to14 15
dismiss the appeals for lack of appellate jurisdiction. Our16
review is plenary.
III.
We must briefly address a preliminary issue raised by the
Hague appeal before proceeding to consider the threshold17
issue of jurisdiction, which affects all seven appeals.
Attorney Brian S. Riepen represented several diet drug
users in state and federal courts. His federal cases, upon being

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Riepen also received another notice of appeal from Pretrial18
Order No. 2622 on Tuesday, November 5, 2002.
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transferred to the Eastern District of Pennsylvania for
coordinated or consolidated pretrial proceedings under MDL
1203, were subject to the 9% assessment for the MDL 1203 Fee
& Cost Account. Because Riepen allegedly failed to use or
benefit from the PMC’s discovery efforts, he objected to the
MDL 1203 assessment against the individual settlements in the
federal cases.
Between the time of the fee hearing and the issuance of
Pretrial Order No. 2622, Riepen moved his office to a different
location. Although he notified the District Court by sending a
letter to the Clerk’s Office, Riepen inadvertently failed to notify
the PMC or Liaison Counsel about his change of address. This
proved to be critical because one of the court-imposed
obligations of the PMC was the service of papers and orders on
participating counsel. When the PMC mailed Pretrial Order No.
2622 to participating counsel, it presumably mailed the order to
Riepen’s old business address.
Pretrial Order No. 2622 issued on October 3, 2002. It
was entered on the District Court’s docket on October 4, 2002.
On Friday, November 1, 2002, Riepen’s office received from
the Clerk of Court a copy of a notice of appeal from Pretrial
Order No. 2622 filed by another counsel participating in MDL
1203. Pursuant to Fed. R. App. P. 4(a), the deadline to file an18
appeal was Monday, November 4, 2002. On Wednesday,
November 6, after the deadline had passed, Riepen claims to

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Fed. R. App. P. 4(a)(5) provides:19
The district court may extend the time to file a notice of
appeal if:
(i) a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during
the 30 days after the time prescribed by this Rule 4(a) expires,
that party shows excusable neglect or good cause.
-25-
have finally learned that Pretrial Order No. 2622 had issued on
October 3 and that the appeal deadline had recently passed.
On November 12, 2002, eight days after the time to
appeal had expired, Riepen filed an untimely Notice of Appeal
and also moved the District Court to extend the time to appeal
under Rule 4(a)(5), claiming “excusable neglect.” The PMC19
opposed the motion.
On February 20, 2003, this Court ordered the appeal
dismissed for lack of jurisdiction. On November 26, 2003
(more than a year after Riepen’s motion was filed), in Pretrial
Order No. 3141, the District Court denied Riepen’s motion to
excuse the untimely appeal. On December 22, 2003, Riepen
filed a timely Notice of Appeal from that order, which is a final
order for purposes of 28 U.S.C. § 1291. Appellate jurisdiction
therefore exists pursuant to § 1291 on the limited issue of the
timeliness of Riepen’s appeal and the existence of excusable
neglect.

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The Supreme Court set forth four factors to be weighed in20
determining whether the neglect claimed was excusable: “the danger
of prejudice to the debtor, the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Id. at 395.
-26-
We review the District Court’s rejection of Riepen’s
motion for an extension for abuse of discretion. Fed. R. App. P.
4(a)(5) provides that the district court may extend the time to
file a notice of appeals if the delinquent party shows excusable
neglect or good cause.
In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship., 507 U.S. 380, 395-97 (1993), the Supreme Court
interpreted the term “excusable neglect,” albeit in the context of
the bankruptcy rules. Since that time, the determination of20
whether a party’s neglect is excusable has been held to be an
equitable determination, in which we are to take into account all
the relevant circumstances surrounding a party’s failure to file
timely.
In George Harms Const. Co., Inc. v. Chao, 371 F.3d 156,
163-64 (3d Cir. 2004), this Court applied Pioneer’s four-factor
analysis of the excusable neglect standard in a Fed. R. Civ. P.
60(b) context. Other courts of appeals have applied the Pioneer
excusable neglect standard in other contexts unrelated to
bankruptcy. Indeed, the Fifth Circuit and other circuits have
applied Pioneer in the context of filing for appeal pursuant to
Fed. R. App. P. 4(a)(5). See Halicki v. La. Casino Cruises, Inc.,
151 F.3d 465, 469 n.3 (5th Cir. 1998) (“In extending Pioneer to

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-27-
rule 4(a)(5), we follow each of our sister circuits to have
addressed the issue.”) (citation omitted); Advanced Estimating
Sys., Inc. v. Riney, 77 F.3d 1322, 1324-25 (11th Cir. 1996) (per
curiam); Fink v. Union Cent. Life Ins. Co., 65 F.3d 722, 724 (8th
Cir. 1995); Reynolds v. Wagner, 55 F.3d 1426, 1429 (9th Cir.
1995); Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d 451,
454 n.3 (1st Cir. 1995); City of Chanute v. Williams Natural Gas
Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (citations omitted);
Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501,
503 (2d Cir. 1994) (citation omitted).
We, too, now find no reason to deprive Hague, an
untimely filer under Rule 4(a)(5), of the standard prescribed by
Pioneer to test whether the late filing should be excused. The
District Court here disposed of Riepen’s motion merely by
denying it without an opinion, without a reason, and more
importantly, without reference to the Pioneer four-factor
balancing standard. The District Court held, without more, that
Riepen’s neglect was not excusable.
In doing so, and without articulating reasons as to why
Riepen’s neglect was not excusable, the District Court did not
properly exercise its discretion. Having reviewed the record and
the reasons for the delinquent filing, as well as having heard
from Riepen’s counsel at oral argument, and having measured
Riepen’s actions by the excusable neglect calculus of Pioneer,
we are satisfied that Riepen’s late filing should be excused. The
length of Riepen’s delay in filing, in the context in which it
occurred, was minimal; it had no potential impact on the judicial
proceedings; the circumstances surrounding Riepen’s failure to
obtain notice of the entry of Pretrial Order No. 2622 were

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Although one of these appeals (Lopez, Hodes, et al. (03-21
2627)) seeks a writ of prohibition/mandamus, we need not devote
time to that suggestion. Mandamus, which is original process in this
court, is only available in extraordinary circumstances, see In re
-28-
understandable and reasonable; and most important of all – there
was no danger that Riepen’s late filing could prejudice the Diet
Drugs proceedings.
Under all the circumstances, therefore, we will allow
Riepen’s appeal. In doing so, however, we hasten to add that
the appeal – Hague, et al. – suffers from the same jurisdictional
problems as the other six appeals, which we discuss infra.
Hence, we cannot review Hague’s arguments on the merits, just
as we are foreclosed from reviewing the issues raised in the
other appeals.
IV.
A.
Courts of Appeals acquire jurisdiction over appeals
through final orders under 28 U.S.C. § 1291; collateral orders
under the doctrine of Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949); interlocutory orders concerning
injunctions under 28 U.S.C. § 1292(a); questions certified for
appeal by the district court and then certified by the appellate
court under 28 U.S.C. § 1292(b); or certification by the district
court pursuant to Fed. R. Civ. P. 54(b) of a “final” judgment
when disposition has been had of less than all parts or issues in
a given case.21

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Federal-Mogul Global, Inc., 300 F.3d 368, 379 (3d Cir. 2002); when
it is not utilized as a substitute for appeal, see In re Sch. Asbestos
Litig., 977 F.2d 764, 772 (3d Cir. 1992) (quoting Westinghouse Elec.
Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir.
1991)); and even when the right to the writ is clear and indisputable,
the exercise of our power is largely discretionary, see Alexander v.
Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.1993) (quoting
Will v. United States, 389 U.S. 90, 96 (1967)) (citation omitted).
Nothing presented by the Appellants here informs the exercise of our
discretion or warrants the issuance of a writ.
-29-
We are not here concerned with the jurisdictional routes
provided by § 1292 or Fed. R. Civ. P. 54(b), inasmuch as
certification was neither sought nor granted by the District Court
and the appeals filed here do not involve the denial,
modification or grant of injunctive relief. The Appellants
essentially rely on “finality” pursuant to §1291 (see discussion,
infra, at part IV.C.) and the collateral order doctrine (see
discussion, infra, at part IV.D.) as sources of appellate
jurisdiction. We hold that their reliance is misplaced.
B.
Before we begin our jurisdictional analysis, it is helpful
if we extract from the foregoing history those facts providing the
relevant context that gives rise to our holding that appellate
jurisdiction to review Appellants’ arguments does not exist at
this time. We summarize some of the relevant circumstances:
(1) Three different funds are involved: the Fund A Legal
Fee Escrow Account, the Fund B Legal Fee Escrow Account,

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-30-
and the MDL 1203 Fee & Cost Account.
(2) In making the fee award and allocation, all three
funds were intermingled.
(3) There are millions of dollars remaining to be
distributed from the Fund A Legal Fee Escrow Account and
Fund B Legal Fee Escrow Account.
(4) The MDL 1203 Fee & Cost Account has had more
than $25 million in additional assessments since the June 30,
2001 allocation.
(5) More than 25,000 new opt-out cases are now pending
as part of MDL 1203.
(6) It is estimated that $60 million will be added to the
MDL 1203 Fee & Cost Account.
(7) The Settlement itself has been amended and is subject
to further amendment, which may bring $2 billion additional
into the Settlement.
(8) The District Court itself found that it could not make
a final award, stating that “. . . the Settlement is still in many
respects in its early stages . . . There is a significant amount of
work still to be done by the Joint Petitioners.” Pretrial Order
No. 2622 at 24-25.
(9) The District Court deliberately did not perform a
Gunter analysis (see note 10 supra) because there were many

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-31-
issues regarding the Settlement Agreement and the funds to be
resolved. It postponed its Gunter analysis until the final
distribution.
It is with these facts in mind that we consider our
jurisdiction.
We have been advised of no authority that holds that
orders – such as Pretrial Order Nos. 2622 & 2859 – issued in the
same case can be deemed final just because one order may lead
to the exhaustion of one of three funds. At oral argument, we
analogized to a situation where the plaintiff in an automobile
accident brought suit against the driver and the owner of the
vehicle. The owner was granted summary judgment, but the
driver was required to stand trial. Counsel here agreed that the
plaintiff could not appeal the owner’s summary judgment by
claiming that the summary judgment was a “final” order.
Counsel further agreed that in such a situation the plaintiff
would be obliged to withhold any appeal until the case against
the driver had been determined by the jury. At that time, and at
that time only, finality would have attached to the entire case,
and the plaintiff could then appeal from the summary judgment
in favor of the owner.
Similarly, here we have one case – the Diet Drugs
Product Liability Multidistrict Litigation. Two orders (Pretrial
Order Nos. 2622 & 2859) have been entered among many other
orders in that case. The appeals have been taken from those two
orders. The Appellants claim that because one of the funds to
which the orders apply (the MDL 1203 Fee & Cost Account)
has been almost exhausted, that we should regard that fund as

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No counsel had considered such an analysis, which we22
asked about at oral argument. We therefore authorized supplemental
briefing and directed that this jurisdictional analysis be addressed.
We had advanced this theory because it seemed evident to us that
taking an appeal from just one fund out of three – and from fewer
than all orders and a judgment generated from this one case –
required a Fed. R. Civ. P. 54(b) certification by the District Court.
This is not to say that such a certification would be effective. See
Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364,
366 (3d Cir. 1975) (holding that district court must undertake “factor-
balancing analysis” and must articulate factors relied upon in granting
certification).
The memoranda we received did not advance the Appellants’
cause. We learned nothing that persuaded us that the Appellants
could appeal from these funds and orders. And because, as we
-32-
being a “final” judgment sufficient to invoke our jurisdiction.
The problem with their contention is that the existence of
the two other funds (the Fund A and B Legal Fee Escrow
Accounts), neither of which have been exhausted, and the
monies from which are intermingled with the monies from the
MDL 1203 Fee & Cost Account in the interim fee award,
prevent finality from attaching. There can be no such thing as
“partial jurisdiction” or “partial finality.” In this case, the entire
$153 million interim fee that was allocated stemmed from all
three funds and we know of no authority that allows us to divide
the $153 million into three parts, granting jurisdiction to one
part and denying it to the other parts. Nor has counsel advised
or informed us of such a doctrine.22

-- 32 of 76 --

discuss hereafter, neither the “finality” nor the collateral order
doctrines urged upon us give us jurisdiction, we are compelled to
dismiss all seven appeals.
-33-
Indeed, it is clear to us that appeals taken from one of the
three intermingled funds and from two among many pretrial
orders, all of which originated from just one case, constitute
paradigmatic non-final appeals: appeals which do not satisfy our
jurisdiction.
C.
The difficulty with the Appellants’ theories is that they
not only run counter to the District Court’s intent and actions,
but they also fail to recognize that the MDL 1203 fund, even if
assumed to be a “final” distribution, was but one part of the
funds distributed. Funds A and B still retained the greater
portion of the monies that funded them.
A decision of the district court is “final” if it “ends
litigation upon the merits and leaves nothing for [the] court to
do but execute the judgment.” Catlin v. United States, 324 U.S.
229, 233 (1945). Accordingly, then, an interim award of
attorneys’ fees is not, in almost all cases, an appealable final
order because it foresees further and additional action by the
district court, thus continuing, but not concluding, the fee
litigation. See Yakowicz v. Commonwealth of Pennsylvania, 683
F.2d 778, 782 (3d Cir. 1982) (holding that an order denying
interim attorney’s fees is not a final order); see also In re
Firstmark Corp., 46 F.3d 653, 657 (7th Cir. 1995) (“[A]n award

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-34-
of interim fees does not conclusively determine the total
compensation due to counsel, so such decisions are generally not
considered final.”); Shipes v. Trinity Indus., Inc., 883 F.2d 339,
341 (5th Cir. 1989) (holding that awards or denials of interim
fees are not “final” within the meaning of 28 U.S.C. § 1291);
Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir. 1988)
(interim fee award not appealable where “district court explicitly
provided for revision of the amount at the conclusion of the
litigation”); Hastings v. Maine-Endwell Cent. Sch. Dist., 676
F.2d 893, 896 (2d Cir. 1982) (holding that order for interim
attorney’s fees not appealable under § 1291); Ruiz v. Estelle,
609 F.2d 118, 118 (5th Cir. 1980) (same).
Appellants urge, however, that the fee award determined
by the District Court possesses the necessary elements of finality
to constitute a final, appealable order for purposes of 28 U.S.C.
§ 1291. In Appellants’ view, there was nothing tentative about
the fee award, which they claim differentiates this case from
those cases holding that interim fee awards are non-appealable.
The signal characteristic of a non-appealable interim award, they
argue, is the partial compensation paid to counsel “amidst
ongoing litigation” such that the determination of the ultimate
amount of the award becomes entwined with a consideration of
the merits. Here, by contrast, they claim the merits of the
underlying litigation is now complete because the District Court
has approved the class action settlement, leaving only
ministerial or administrative tasks associated with the
implementation of the settlement to be completed. Properly
understood, then, they argue that this case involves an advance
or partial payment of a finite fee award, not an “interim” award
of unquantifiable total fees.

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We were informed at oral argument, as we have stated,23
supra, in note 12, that since the date of the fee allocation (June 30,
2001) multiple millions of dollars have been deposited in the MDL
1203 Fee & Cost Account.
-35-
In so arguing, however, Appellants mistakenly assume
that the total fee award has been firmly established by the
District Court. As we have recognized, the counsel fees here
were drawn from three separate funds: the Fund A Legal Fee
Escrow Account, the Fund B Legal Fee Escrow Account, and
the MDL 1203 Fee & Cost Account. While it can be argued,
and Appellants so contend, that the distribution of fees from the
MDL 1203 Fee & Cost Account is final, thus comporting with
Appellants’ view of the fee award, the distributions from the
Fund A Legal Fee Escrow Account and the Fund B Legal Fee
Escrow Account are far from being exhausted, and are neither
finite nor final.23
Because questions regarding the value of the settlement
and the benefits conferred on Class Members remain unsettled,
the District Court found that it could not undertake a Gunter
analysis and make a full fee award from either the Fund A Legal
Fee Escrow Account or the Fund B Legal Fee Escrow Account.
See Pretrial Order. No. 2622 at 24. Only after the remaining
issues, affecting the overall value and efficacy of the settlement,
have been resolved will the District Court be in a position to
consider making a final fee award to Class Counsel. In other
words, the total fee award relates to the overall settlement value,
which is undetermined at this time. While the maximum
possible fees from both accounts equal $429 million ($200

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Although the Appellants contend that any future award of24
attorneys’ fees will cover only prospective and therefore separate
services to be performed, the District Court’s opinions in Pretrial
Order Nos. 2622 and 2859 make it clear that the future adjustments
(if any) to the interim fee allocation will include services that have
been performed as well as those to be performed in the future. Thus,
cases such as Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), and
Finnegan v. Dir., Office of Workers’ Comp. Programs, 69 F.3d 1039
(9th Cir. 1995) are inapposite, and Appellants’ reliance upon them is
misplaced.
Fed. R. Civ. P. 54(b) states:25
When more than one claim for relief is presented in an action
. . . the court may direct the entry of a final judgment as to one
-36-
million from the Fund A Legal Fee Escrow Account and $229
million from the Fund B Legal Fee Escrow Account), the
District Court awarded only $40 million from each account,
leaving very substantial sums of money for future distribution.24
Finally, and in a somewhat similar vein, certain of the
Appellants argue that the pretrial orders were final as to them,
either with respect to the assessments for the MDL 1203 Fee &
Cost Account or their share (or lack thereof) in both the interim
and future fee awards, even if the total compensation due to all
counsel has yet to be determined. Normally, under Fed. R. Civ.
P. 54(b), any order that disposes of “fewer than all of the claims
or the rights and liabilities of fewer than all the parties” is not a
final, appealable order unless reasoned and certified as such by
the district court. Fed. R. Civ. P. 54(b). Here, as we have25

-- 36 of 76 --

or more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for delay
and upon an express direction for the entry of judgment. In
the absence of such determination and direction, any order or
other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties.
See also Allis-Chalmers Corp., 521 F.2d at 364 (holding that district
court must clearly articulate reasons and factors prompting its
decision to grant a 54(b) certification).
Appellants, citing to Hall v. Wilkerson, 926 F.2d 311, 31426
(3d Cir. 1991), argue that a Rule 54(b) certification is not required
here because their cases have been finally resolved notwithstanding
the pendency of other cases in MDL 1203. We find Hall to be
inapposite because the consolidation effected there was vastly
different from the consolidation of cases for MDL 1203 purposes.
Moreover, the interim nature of the orders entered here, when
considered with the MDL consolidation, preclude any concept of the
“finality” held by us in Hall.
-37-
stated earlier, there is no dispute that the Appellants neither
sought nor obtained a Rule 54(b) certification. As a result, the
pretrial orders cannot be considered “final” with respect to
specific fee claims. See Saber v. FinanceAmerica Credit26
Corp., 843 F.2d 697, 702 (3d Cir. 1988) (“Without this
certification, a district court order will not be considered

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-38-
final.”); Yakowicz, 683 F.2d at 782 n.8 (“[Appellant] does
not–correctly, in our view–contend that the district court’s order
is appealable under any provision of 28 U.S.C. § 1292. The
district court did not deny injunctive relief, nor was certification
either sought or granted under either § 1292(b) or Fed. R. Civ.
P. 54(b).”).
Accordingly, we reaffirm our holding that Pretrial Order
Nos. 2622 and 2859 are not final, appealable orders under 28
U.S.C. § 1291.
D.
The collateral order doctrine, as first annunciated in
Cohen v. Beneficial Indus. Loan Corp., “relaxes the strict
standard of finality by permitting [the court] to entertain appeals
from certain orders that would not otherwise be appealable final
decisions.” Martin v. Brown, 63 F.3d 1252, 1258 (3d Cir. 1995)
(citations omitted). The order sought to be appealed must (1)
conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the
action, and (3) be effectively unreviewable on appeal from a
final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978). We have described these three requirements as (1)
the “conclusiveness” prong, (2) the “importance/separateness”
prong, and (3) the “unreviewability” prong. Martin, 63 F.3d at
1259 (citing Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A.,
947 F.2d 49, 54-58 (3d Cir. 1991)). Failure to satisfy any one
prong defeats collateral order jurisdiction. Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276
(1988).

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-39-
Applying the Cohen factors here, it is evident that Pretrial
Order Nos. 2622 and 2859 do not qualify as collateral orders, for
each fails to satisfy both the “conclusiveness” and
“unreviewability” prongs.
1. The “Conclusiveness” Prong
An order is conclusive when no further consideration is
contemplated by the district court, which excludes from review
any decision which is tentative, informal or incomplete. Martin,
63 F.3d at 1259 (internal citations and quotations omitted).
Analyzing the first Cohen criteria, we cannot conclude that the
pretrial orders conclusively determined the question of
attorneys’ fees. To the contrary, the District Court has
expressed unequivocally that it intends to revisit the issue and
make a final award after applying the Gunter factors. The fee
award leaves unresolved the total or final amount of fees due to
Class Counsel. See Rosenfeld, 859 F.2d at 720 (order awarding
interim fees inconclusive because it did not determine total
amount of fees due to counsel); Hastings, 676 F.2d at 896
(interim fee award not appealable collateral order because it
does not determine claim for attorneys’ fees with finality).
To date, only interim fees have been awarded, even
taking into account the funds distributed from the MDL 1203
Fee & Cost Account, which represent less than 20% of the total
amount of attorneys’ fees potentially available under the
Settlement Agreement. As the Appellee concludes in its
supplemental brief:
[w]here an interim award does not determine the total

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-40-
amount of fees due to an attorney, contemplates an
additional award relating to the same services based on
subsequent events, or engenders a genuine prospect of
revision by subsequent order, it does not finally resolve
the fee question and does not satisfy the conclusiveness
prerequisite to collateral order appellate review.
Levin Fishbein Supp. Br. at 4 (citations omitted).
2. The “Unreviewability” Prong
On the unreviewability prong of the Cohen requirements,
we consider whether the District Court’s orders will be
“effectively unreviewable” absent immediate review. Martin,
63 F.3d at 1261. To meet this requirement, an order must be
such that review postponed will, in effect, be review denied. Id.
For purposes of the collateral order doctrine, unreviewability
means that failure to review immediately may well cause
significant harm. Id.
It is well established that an award of interim fees may be
effectively reviewed after final judgment is entered. See Shipes,
883 F.2d at 344; Yakowicz, 683 F.2d at 784-85; Hastings, 676
F.2d at 896; Ruiz, 609 F.2d at 119. The one possible exception
to this conclusion, as suggested in Palmer v. City of Chicago,
806 F.2d 1316, 1319-20 (7th Cir. 1986), is when the mere
payment of fees would make them unrecoverable. That is, to
satisfy the “unreviewability” prong, there must be a showing
that disbursement of the fees might very well make them

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-41-
unrecoverable at the end of the litigation should they turn out to
have been awarded in error. Appellants have made no such
showing here.
Appellants cite to Palmer to support their argument that
the interim fee award is collaterally appealable under Cohen
because of the irreparable harm that may be inflicted by an order
to pay interim fees. 806 F.2d at 1318 (collateral orders
appealable “only when they threaten irreparable harm”). In
Palmer, a district court ordered a city to pay immediately interim
fees that might not have been recoverable if the award was later
held invalid. The Seventh Circuit held that the order threatened
sufficient harm to justify appellate review. Palmer, however,
does not support Appellants’ position here.
As explained by the Ninth Circuit in Rosenfeld, “the
‘irrevocable harm’ in Palmer would arise because interim fees
were to be paid directly to a ‘revolving fund’ of prisoners and
defendants whose class members might, by the close of the
litigation, be insolvent, have disappeared, or no longer even be
parties, making recovery upon appeal impossible.” 859 F.2d at
721 (citing Palmer, 806 F.2d at 1319). In contrast, the Palmer
court stated,
If (but for this appeal) the fees would have been
disbursed to the lawyers rather than retained by the
prisoners and defendants, the problem would be less
serious . . . [w]e assume that the district court has an
inherent power to order attorneys to whom fees were
paid over by their clients pursuant to court order to repay
the fees should the order be reversed.

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-42-
Palmer, 806 F.2d at 1319.
Rosenfeld distinguished Palmer on the basis that the
interim fees were paid directly to counsel, thus satisfying
Palmer’s concern. 859 F.2d at 721. In this case, too, the
interim fees will go directly to counsel and the threat of
insolvency is entirely conjectural.
Finally, Appellants argue that there will be no finality to
the fee adjudication process until the administration of the class
settlement is complete, eleven or twelve years from now. The
reason the settlement administration will protract over eleven
years is that it is designed to provide compensation to those
Class Members whose underlying diet drug related disease
progresses in severity over time. See Pretrial Order No. 1415.
But, as Appellees point out, the District Court’s decision to
refrain from fully adjudicating the request for payment of
common benefit fees had nothing to do with concerns arising
from the administration of disease progression claims. Rather,
it had to do with more immediate concerns about the ongoing
viability of the settlement and its consequent value to Class
Members. See Pretrial Order No. 2622 at 24-26.
Indeed, the District Court initially stated that it would
entertain renewed petitions for a final fee award in October
2003. Id. at 25. Subsequently, in its allocation decision, the
District Court modified this directive, stating that additional
petitions should not be filed until further order of the court
because “[t]he timing of further petitions for fees will need to be
discussed with counsel.” Pretrial Order No. 2859 at 36.
Nothing indicates, however, that the District Court has changed

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The Appellee has filed motions to dismiss the appeals in27
03-2627, 03-2695, and 03-2766. No motion has been filed to dismiss
the other four appeals. As stated in note 16, supra, at oral argument
the latter four appeals were included within the motions to dismiss,
all based on the same jurisdictional grounds. By this decision
dismissing all seven appeals for lack of appellate jurisdiction, we
have thereby granted all motions to dismiss.
-43-
its expressed intention that “when the pressing issues
[described] above have been resolved and the entire picture is
less clouded . . . the court will be in a better position to make
final fee award to Class Counsel, after consideration and
application of Gunter.” Pretrial Order No. 2622 at 25-26.
At least two of the three Cohen criteria have not been met
in this case. Accordingly, we hold that the appeals taken from
Pretrial Order Nos. 2622 and 2859 cannot be entertained under
the collateral order doctrine of Cohen.
V .
We have examined the grounds of jurisdiction advanced
by the Appellants, and we have explored with them our own
jurisdictional analysis. We have concluded that there is no
theory of jurisdiction that permits us to entertain any of the
merits arguments or issues presented by the seven Appellants.27
We have been instructed that absent jurisdiction, we are to
dismiss the appeals filed and take no further action. See
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379
(1981) (“If the appellate court finds that the order from which a
party seeks to appeal does not fall within [its appellate

-- 43 of 76 --

We have read Judge Ambro’s thoughtful concurrence, but28
we make no comment with respect to it nor do we subscribe to its
discussion or analysis, inasmuch as the Supreme Court has forcefully
decreed that once a court determines that it has no jurisdiction, as we
have done here, it is not permitted to do anything further. See
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440-41 (1985)
(“The Court of Appeals lacked jurisdiction to entertain respondent's
appeal and should not have reached the merits. . . . We accordingly
do not address the additional issues on which we granted certiorari,
and we do not intimate any view on the merits of the District Court’s
[] decision.”) (citing Risjord, 449 U.S. at 379).
-44-
jurisdiction], its inquiry is over.”).
We do so here.28
AMBRO, Circuit Judge, concurring
I join wholeheartedly Judge Garth’s conclusion that the
Hague appeal should be allowed notwithstanding its untimely
filing. I also agree that each of these appeals must be dismissed

-- 44 of 76 --

-45-
for want of appellate jurisdiction and that the circumstances do
not warrant relief by way of mandamus. I write separately,
however, to highlight certain considerations, though not present
here, that I believe would have permitted appellate review.
Moreover, because the majority opinion by necessity stops at the
jurisdictional gate, the District Court lacks our Court’s comment
on the fee award issues. I thus write as but one voice that risks
regard as simply a pundit without portfolio.
I. Rule 54(b) Certification
As a threshold matter and as Judge Garth emphasizes, we
must be satisfied that we have jurisdiction to hear these appeals.
Metro Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672,
676 (3d Cir. 1990). “This Court’s appellate jurisdiction is
conferred and limited by Congress’s grant of authority.”
Berckeley Inv. Grp. Ltd. v. Colkitt, 259 F.3d 135, 139 (3d Cir.
2001) (citing Sheldon v. Sill, 49 U.S. 441, 449 (1850)). Under
28 U.S.C. § 1291, our jurisdiction is limited to “final decisions”
of the district courts. Here we are dealing with an award and
allocation of counsel fees, embodied in Pretrial Orders Nos.
2622 and 2859, that the District Court designated as “interim.”
We have held that a denial of an interim award of attorneys’ fees
is not final within the meaning of § 1291. Yakowicz v.
Commonwealth of Pennsylvania, 683 F.2d 778, 782 (3d Cir.
1982). Accord, e.g., Shipes v. Trinity Indus., Inc., 883 F.2d
339, 341 (5th Cir. 1989).

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The Rule provides in part:29
When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon
an express direction for the entry of judgment.
-46-
Although an order that disposes of “fewer than all of the
claims or the rights and liability of fewer than all the parties” is
normally not appealable, an exception to the general rule exists
when an order is certified as appealable by a district court
pursuant to Federal Rule of Civil Procedure 54(b). That is,29
Rule 54(b) “permit[s] the district court to separate out final
decisions from non-final decisions in multiple party and/or
multiple claim litigation” in order to allow immediate appeal.
Weiss v. York Hosp., 745 F.2d 786, 802 (3d Cir. 1984); see also
Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d
360, 363 (3d Cir. 1975) (explaining that Rule 54(b) “attempts to
strike a balance between the undesirability of piecemeal appeals
and the need for making review available at a time that best
serves the needs of the parties”); Bendix Aviation Corp. v.
Glass, 195 F.2d 267, 269 (3d Cir. 1952) (explaining that “in a
multiple claims case the judgment which finally adjudicates all
the claims is the only judgment having finality unless [the
district] court in its discretion enters a final judgment pursuant
to [Rule 54(b)]”).

-- 46 of 76 --

-47-
As Judge Garth points out, in this case no party sought
the District Court’s certification and therefore this avenue
cannot provide a basis for our jurisdiction. Nevertheless, the
issue of Rule 54(b) certification deserves further discussion in
the context of our case. While Judge Garth’s statement that the
appeals “charg[e] essentially that the district court abused its
discretion in awarding and allocating an interim award of
attorneys’ fees” is accurate, what is potentially at stake is both
far-reaching and nuanced in the context of this case—an
appropriate allocation of compensation to counsel in a cutting-
edge class action. Not only is the Nationwide Class Action
Settlement Agreement (the “Settlement Agreement”) of record-
setting scale and scope, but it also contains numerous innovative
features that have potential significance for future class actions.
See generally Richard A. Nagareda, Autonomy, Peace, and ‘Put’
Options in the Mass Tort Class Action, 115 HARV. L. REV. 747
(2002). Additionally, under the Settlement Agreement,
payments can be made to class members who develop serious
levels of valvular heart disease at any time for years to come,
specifically until December 31, 2015. While it does not appear
that the District Court intends to wait that long before entering
a final fee award, it remains useful to explore considerations that
would allow for appellate review in complex class action
litigation in order to work around requirements that might lead
to substantial delay.
A.

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-48-
A district court’s Rule 54(b) certification is necessarily
predicated on its affirmative answer to two questions: is the
judgment final and is it ready for appeal. Gerardi v. Pelullo, 16
F.3d 1363, 1368 (3d Cir. 1994). Thus, in certifying an order for
appeal under Rule 54(b), a court must first decide whether it is
dealing with a determination that is final for purposes of
certification. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S.
1, 7 (1980). “Finality is defined by the requirements of 28
U.S.C. § 1291, which are generally described as ‘ending the
litigation on the merits and leaving nothing for the court to do
but execute the judgment.’” Gerardi, 16 F.3d at 1369 (quoting
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 275 (1988) (quoting Catlin v. United States, 324 U.S. 229,
233 (1945))). Rule 54(b) does not alter this definition, but
allows a judgment to be entered if the order has the requisite
degree of finality as to a specific claim in a multi-claim action
or a specific party in a multi-party action. Sussex Drug Prods.
v. Kanasco, Ltd., 920 F.2d 1150, 1153-54 (3d Cir. 1990).
“Although a district court has discretion in certifying a judgment
for appeal under Rule 54(b), the district court cannot, in its
exercise of its discretion, treat as ‘final’ that which is not ‘final’
within the meaning of [28 U.S.C.] § 1291.” Waldorf v. Shuta,
142 F.3d 601, 611 (3d Cir. 1998) (quotation omitted). While the
Rule “allows immediate appeal of separate disputes comprised
within a larger litigation[,] . . . [i]t does not, however, allow
appeal . . . when the district court will revisit the issues.” Trs.
of Chicago Truck Drivers v. Cent. Trans., Inc., 935 F.2d 114,
116 (7th Cir. 1991).

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Ronald R. Benjamin (02-4021).30
Fleming & Associates, L.L.P (02-4074).31
Lois Gooch-Kiel and Linda L. Marull (02-4020).32
Randy Hague, et al. (03-4830).33
-49-
It appears that four of the appeals before us would be
sufficiently final for purposes of the Rule. The appeals in
Benjamin, Fleming, Gooch-Kiel, and Hague challenge the30 31 32 33
MDL 1203 Fee & Cost Account assessments—assessments that
funded, in part, the interim award of counsel fees. Under
Pretrial Order No. 467, a percentage of all payments made by
the defendant in settlements in cases transferred to MDL 1203
was to be paid into the MDL 1203 Fee & Cost Account out of
individual attorneys’ share of their clients’ recoveries. In
addition, under Pretrial Order No. 517, state actions could
become eligible for state-federal coordination provided that,
among other things, an assessment would be sequestered for the
MDL 1203 Fee & Cost Account. Initially, the percentage for
the assessments in federal actions was set at 9% and the state-
coordinated action was set at 6%; these percentages were later
reduced to 6% and 4%, respectively, in Pretrial Order No. 2622.
The difference was refunded to counsel who had paid the higher
assessments, leaving the MDL 1203 Fee & Cost Account nearly
spent. The sequestered funds have been paid out to counsel in
connection with attorneys’ fees awarded in Pretrial Order No.

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The other appeals—Carol Bloom, et al. (No. 03-2695)34
(“Bloom”); Lopez, Hodes, Restaino, Milman & Skikos, et al. (No. 03-
2627) (“Lopez-Hodes”); and Nisen & Elliott, et al. (No. 03-2866)
(“Nisen & Elliot”)—present different considerations, as they
challenge awards of counsel fees that the District Court expressly
indicated were subject to future revision following the application of
the factors outlined in Gunter v. Ridgewood Energy Corp., 223 F.3d
190 (3d Cir. 2000). See Pretrial Order No. 2622 at 24-26.
-50-
2622 and allocated among counsel as specified in Pretrial Order
No. 2859.
The Benjamin, Fleming, Gooch-Kiel, and Hague
Appellants are contesting the District Court’s allocation of funds
that have been paid out to the recipients of the attorneys’ fee
award. It appears that these Appellants are no longer involved
in the MDL proceedings. If so, and if they had requested
certification under Rule 54(b), the assessments levied against the
Benjamin, Fleming, Gooch-Kiel, and Hague Appellants appear
to be sufficiently final to permit that certification.34
B.
Once having found finality, a district court must then
determine whether the judgment is ready for appeal, or put
differently, whether there is any just reason for delay. Curtiss-
Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980). The
decision to certify a final judgment under Rule 54(b) is
committed to the discretion of the district court, taking into

-- 50 of 76 --

-51-
account the interest of sound judicial administration as well as
the equities of the case. Id.; Sears, Roebuck & Co. v. Mackey,
351 U.S. 427, 437 (1956).
In our Circuit, Allis-Chalmers Corp. v. Philadelphia
Electric Co., 521 F.2d 360 (3d Cir. 1975), instructs district
courts to consider the following factors in deciding whether to
grant Rule 54(b) certification: (1) the relationship between the
adjudicated and non-adjudicated claims; (2) the possibility that
the need for review might be mooted by future developments;
(3) the possibility that the reviewing court might be obliged to
consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim that could result in set-off
against the judgment sought to be made final; and (5)
miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of the trial, frivolity of
competing claims, expense and the like. Id. at 363.
“[D]epending upon the facts of the particular case, all or some
of the above factors may bear upon the trial court’s discretion in
certifying a judgment as final under Rule 54(b).” Waldorf v.
Shuta, 142 F.3d 601, 609 (3d Cir. 1998)
Here, the first factor—the relationship between the
adjudicated and non-adjudicated claims—favors certification
because the parties’ claims on the merits have been resolved by
settlement. Similarly, looking ahead to the fourth factor, the
absence of any pending counterclaim also favors certification.

-- 51 of 76 --

-52-
The second factor—the possibility that the need for
review might be mooted by future developments—is less clear-
cut. That is, more than $25 million in additional assessments
have been deposited into the MDL 1203 Fee & Cost Account
since the entry of Pretrial Order No. 2622, and it is estimated
that $60 million will be added to that account. Additionally, in
Pretrial Order No. 2622, the District Court declined to perform
a Gunter analysis until certain issues surrounding of the
Settlement Agreement are resolved. See Pretrial Order No. 2622
at 24-26 (explaining that “[q]uestions regarding the value of the
settlement . . . clearly remain” and that the court “will be in a
better position to make a final fee award to Class Counsel” after
the resolution of “pressing issues” surrounding the
administration of the Settlement Agreement). At the time such
a final award is made, additional funds may be distributed from
the MDL 1203 Fee & Cost Account to counsel that performed
work for the benefit of the class. It is also possible that some
funds will be returned to the attorneys who have been assessed
a percentage of their recoveries.
Nevertheless, the fact that additional funds have been
deposited into the MDL 1203 Fee & Cost Account since the
entry of Pretrial Order No. 2622 does not preclude Rule 54(b)
certification. Even in the event that the assessments are reduced
to a lower percentage—an event that is by no means certain and,
indeed, is not even expressly contemplated by the District Court
in Pretrial Order Nos. 2622 or 2859—the Benjamin, Fleming,
Gooch-Kiel, and Hague Appellants are objecting to the fact that

-- 52 of 76 --

To repeat what is already noted in the majority opinion, the35
PMC performed work (or assigned work to other attorneys) for the
common benefit of plaintiffs in MDL 1203 and in any coordinated
state-court proceedings. Among other things, the PMC oversaw
pretrial proceedings on behalf of plaintiffs, conducted discovery of
widespread applicability, and compiled a widely applicable trial
preparation package.
-53-
they were subject to any assessment whatsoever. There is no
plausible scenario under which their liability would reduce to
zero or an amount approaching zero. In this respect, there is not
a great possibility that future developments will moot the issues
raised by the four Appellants.
With respect to the third factor, there does not appear to
be a significant possibility that the same issues would be
presented for review a second time. There is some overlap
among the issues raised in the Benjamin, Fleming, Gooch-Kiel,
and Hague appeals. They all challenge the District Court’s
finding that they benefitted from the work of the Plaintiffs’
Management Committee (“PMC”). Given that this issue has35
been raised for appellate review in only a relatively small
number of the total cases in which funds were sequestered for
the MDL Fee & Cost Account, there is not a high probability
that this argument would be raised again.
Lastly, the miscellaneous factor of delay argues (albeit
slightly) in favor of review. For the reasons discussed above
and in Judge Garth’s opinion, it is not yet known when a final

-- 53 of 76 --

Rule 54(b) and the collateral order doctrine are conceptually36
distinct exceptions to the finality rule. Prior to the adoption of Rule
54(b), the entire case was typically treated as a single judicial unit that
could give rise to only one appeal, even if that case consisted of
numerous discrete claims or numerous parties. Rule 54(b) was
-54-
fee award will be rendered. It has already been more than two
years since the District Court entered Pretrial Order No. 2622.
Even though it appears that the final fee award will be made
well before 2016, the four Appellants face delay that is not
insignificant.
Viewing all of the Allis-Chalmers factors together, this
case is one in which a court could find Rule 54(b) certification
is warranted. Assuming that the settlement remains sound—a
matter that the District Court is much better-situated to
assess—the resolution of these issues by our Court would be
consistent with Rule 54(b)’s policy of striking a “balance
between the undesirability of piecemeal appeals and the need for
making review available at a time that best serves the needs of
the parties.” Allis-Chalmers Corp., 521 F.2d at 363.
II. Collateral Order Doctrine
As an avenue apart from Rule 54(b) certification,
interlocutory orders may be immediately appealed if the order
falls within the narrow confines of the collateral order
doctrine. First brought into play by the Supreme Court in36

-- 54 of 76 --

therefore designed to relax the “judicial unit” aspect of finality in
response to the increasing demands and frequency of complex
litigation. See Shipes v. Trinity Indus., Inc., 883 F.2d 339, 342 (5th
Cir. 1989). The collateral order doctrine is, in contrast, a judicially
created exception to the statutory finality requirements that permits
appeals from orders that would otherwise be considered interlocutory.
See id.
-55-
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),
the collateral order doctrine provides a narrow exception to the
general rule permitting appellate review only of final orders. In
re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997). Under
this doctrine, an appeal of a nonfinal order is appropriate if: (1)
the order from which the appellant appeals conclusively
determines the disputed question; (2) the order resolves an
important issue that is completely separate from the merits of the
dispute; and (3) the order is effectively unreviewable on appeal
from a final judgment. Id.; see also United States v. Bertoli, 994
F.2d 1002, 1010 (3d Cir. 1993) (“The flexibility given by
Cohen, commonly called the collateral order doctrine, permits
appeal of some district court orders that do not terminate the
entire case, or even a discrete part of it.”). If the order at issue
fails to satisfy any one of the three prongs, it is not an appealable
collateral order. Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 276 (1988). Courts have reached mixed
conclusions with respect to whether interim fee awards are
appealable under the collateral order doctrine. See Dardar v.
LaFourche Realty Co., 849 F.2d 955, 957 n.8 (5th Cir. 1988)
(collecting cases).

-- 55 of 76 --

-56-
A.
Under the first prong of the collateral order doctrine
test—labeled the “conclusiveness prong”—the order appealed
must “finally resolve a disputed question.” Praxis Properties,
Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 54 (3d Cir.
1991). In determining this, the Supreme Court has contrasted
two types of orders: those that are “inherently tentative” and
those that are “technically amendable, but made with the
expectation that they will be the final word on the subject
addressed.” Christy v. Horn, 115 F.3d 201, 204 (3d Cir. 1997)
(citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271, 277 (1988)).
The conclusion that the conclusiveness prong is not met
in our case would be far less certain, however, if the District
Court had not indicated a willingness to make a final fee award
when the “entire picture is less clouded,” Pretrial Order No.
2622 at 25, which suggests that the fees will be awarded when
practical—presumably well before 2016. Though there is scant
indication it intends to do so, the Court is free to revisit its
allocation of fees through June 30, 2001. Moreover, it has
expressly declined to make a final fee award so that the Gunter
factors may be applied. In this context, while I do not share my
colleagues’ view that the conclusiveness prong is clearly not
satisfied, the current state-of-play nonetheless tilts to the

-- 56 of 76 --

Regarding the second prong of the collateral order test, this37
is a case in which the issues surrounding the attorneys’ fee allocation
are separate from the merits of the underlying litigation. See White v.
New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 452 (1982)
(explaining that an award of attorney’s fees “is uniquely separable
from the cause of action to be proved at trial”). Furthermore, the
second prong of Cohen contemplates orders that are important in a
jurisprudential sense. See Praxis Properties, 947 F.2d at 56 (citing
Nemours Found. v. Manganaro Corp., 878 F.2d 98, 100 (3d Cir.
1989)); see also Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982)
(“Cohen established that a collateral appeal of an interlocutory order
must ‘present a serious and unsettled question.’”) (citation omitted)).
Given the novelty of the issues implicated in the underlying class
action and the lack of guidance from our Court on the allocation of
attorneys’ fees in the context of our case, I believe this aspect of the
second prong is easily met.
-57-
conclusion that conclusiveness does not yet exist.37
B.
The case law addressing whether orders respecting
interim fee awards fit within the collateral order doctrine places
considerable weight on the fact that the fee awards can generally
be reviewed at the conclusion of the litigation in the district
court. However, an interim fee order may be reviewable when
the “mere payment of the fees would make them
unrecoverable.” Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir.
1980); see also, e.g., Palmer v. City of Chicago, 806 F.2d 1316,
1319-20 (7th Cir. 1986).

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-58-
The Seventh Circuit Court of Appeals has addressed the
unreviewability prong of the collateral order doctrine in the
context of interim fee awards in a series of cases beginning with
Palmer, in which the Court held that an interim fee award was
appealable when fees were to be paid not to attorneys but to a
“revolving fund” for prisoner-plaintiffs. 806 F.3d at 1319-20;
see also, e.g., People Who Care v. Rockford Bd. of Educ., 171
F.3d 1083, 1086 (7th Cir. 1999); Constr. Indus. Ret. Fund v.
Kasper Trucking, Inc., 10 F.3d 465, 468 (7th Cir. 1993); People
Who Care v. Rockford Bd. of Educ, 921 F.2d 132, 134-35 (7th
Cir. 1991); Richardson v. Penfold, 900 F.2d 116, 117-18 (7th
Cir. 1990). In a subsequent case, the Seventh Circuit indicated
that although interim awards “are not final in the traditional
sense . . . [,] they are appealable under the collateral order
doctrine when the defendant may have difficulty getting the
money back.” People Who Care, 921 F.2d at 134. In this
respect, the crucial consideration in determining that an order is
immediately appealable is whether “postponing appellate review
till the end of the case would cause substantial irreparable harm
to the party against whom the order was directed.” Palmer, 806
F.2d at 1319.
My colleagues emphasize that the fee distributions at
issue in this case have been made to counsel instead of to the
parties. Cf. id. at 1319 (explaining that if the “fees would have
been disbursed to the lawyers rather than retained by the
prisoners and defendants, the problem would be less serious. .
. . [W]e assume that the district court has an inherent power to

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-59-
order attorneys to whom fees were paid over by their clients
pursuant to court order to repay the fees should the order be
reversed.”). Although that consideration is relevant in the short-
term, in the long-run this fact becomes a less compelling basis
for finding that the unreviewability prong is not met. Whether
the funds are distributed to an attorney or to a private litigant, it
is difficult to maintain a high degree of confidence that either
will remain available to be returned for re-distribution if the
final tabulation were not to be made for more than a decade.
For this reason, if it did not appear that a final distribution will
occur in the relatively near future, this case, as a practical
matter, would fall much closer to the situation in Palmer, where
review was necessary to avoid irreparable harm.
III. Fee Allocation Procedures
The District Court described the task of allocating $160
million in counsel fees as “herculean.” Pretrial Order No. 2859
at 5. This description was apt. By the time the Court entered
the order allocating interim fees, the litigation had spanned more
than five years, produced more than 2800 orders, and resulted in
a complex Settlement Agreement that had been amended
multiple times. See id. In light of the size of this task and our
Court’s prior lack of exploration of the issues involved in such
an allocation, discussion of the merits follows. The discussion
in this section is not intended to express a view on the
correctness of the actual allocation among counsel (save my
comment in B.1 below), but rather addresses the procedure by

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-60-
which the allocation was rendered.
A.
As noted, our Court has offered little guidance on how
fees should be allocated among counsel in MDL class actions.
The most direct guidance came in a footnote in which we
posited that the approach of allowing lead counsel to allocate
and distribute counsel fees among various law firms frees
district courts from “undertak[ing] the difficult task of assessing
counsels’ relative contributions.” In re Prudential Ins. Co. of
Am. Sales Litig., 148 F.3d 283, 329 n.96 (3d Cir. 1998).
Perhaps implicitly acknowledging the lack of detailed
guidance from our Court, Appellees cite a number of decisions
in which courts have delegated the task of allocating fees
among counsel to lead counsel or have relied on an agreement
reached by counsel. See, e.g., In re Linerboard Antitrust Litig.,
333 F. Supp. 2d 343, 251 (E.D. Pa. 2004); In re Copley, 50 F.
Supp. 2d 1141, 1147-50 (D. Wyo. 1999); In re Indigo Sec.
Litig., 995 F. Supp. 233, 234 (D. Mass. 1998); In re Magic
Marker Sec. Litig., 1979 WL 1248, 1979 U.S. Dist. LEXIS 9777
(E.D. Pa. Sept. 16, 1979); In re Ampicillin Antitrust Litig., 81
F.R.D. 395, 400 (D.D.C. 1978); Del Noce v. Delyar Corp., 457
F. Supp. 1051, 1055 (S.D.N.Y. 1978). In one of the earlier
decisions to address these issues, the judge went as far as to say
that “it is virtually impossible for the Court to determine as
accurately as can the attorneys themselves the internal

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-61-
distribution of work, responsibility and risk.” In re Ampicillin
Antitrust Litig., 81 F.R.D. at 400. He then accepted the
“unanimous position of [the] attorneys . . . that the Court should
take no part in the ultimate division of any fee awarded . . . [and]
defer[ed] to the attorneys’ request that the fee award be made
to” the committee of counsel for the settling class. Id. More
recently, a court has justified delegating the task of formulating
a proposed fee allocation as follows:
Attorney fee allocation is an unenviable task for
any court. It is a difficult matter that, frankly,
even the trial court is often not in the best position
to decide. This is especially true in complex class
actions, like the one at bar. In such a
circumstance, ideally, allocation is a private
matter to be handled among class counsel. The
rationale for this policy is both logical and
practical. Class counsel are better able to decide
the weight and merit of each other’s
contributions.
In re Copley, 50 F. Supp. 2d at 1148 (quotations and citations
omitted).
Against this background and in view of the slowly
emerging consensus (or, at least, trend) that it is difficult for
courts to assess the contribution of various counsel to the
litigation, the District Court here decided to create a five-

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-62-
member Fee & Cost Allocation Committee (the “Allocation
Committee”). Three of the five attorneys on the Allocation
Committee are members of the PMC, the body of attorneys that
oversaw the coordinated and consolidated pretrial proceedings
and conducted discovery of widespread applicability on behalf
of plaintiffs in this multidistrict litigation. Two of the five
members of the Committee are partners in the same law
firm—Levin, Fishbein, Sedran and Berman (“Levin, Fishbein”).
Under Pretrial Order No. 2622, the Allocation
Committee had forty-five days to propose an allocation of the
$160 million. It held meetings during that period in secret and
in late November 2002 issued a report with its proposed
allocation. That proposal set aside approximately $28.7 million
from the interim class fee award for counsel in certified class
actions in various state courts and certain other attorneys who
had performed services that contributed to class recovery and
were entitled only to recover from the Fund A Legal Fee
Escrow Account (“Fund A”) or the Fund B Legal Fee Escrow
Account (“Fund B”).
The Allocation Committee then combined the remaining
fees available from Fund A with those funds approved for the
payment of fees from Fund B and the MDL 1203 Fee & Cost
Account. These funds totaled approximately $131 million. The
Allocation Committee formulated a plan to allocate this amount
to more than two dozen law firms entitled to share in both the
interim award of class fees and the interim award from the

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Under the “lodestar” method, the number of hours38
reasonably expended by an attorney is multiplied by a reasonable
hourly rate to calculate attorneys’ fees.
-63-
MDL 1203 Fee & Cost Account. In arriving at its proposed
allocation, the Allocation Committee considered the relative
contribution of each MDL Firm to various stages of the
litigation. Within each stage of the litigation, it considered
certain factors to determine the contribution of each firm,
including, among other things, the: (1) quality of the work
performed and relative skill and efficiency of the attorneys
involved; (2) duration and intensity of the firm’s commitment
to the litigation; (3) level at which firm partners participated in
the litigation; and (4) extent to which the firm was engaged in
the litigation for the common benefit of the class members
independent of any case specific recoveries. See Pretrial Order
No. 2859 at 6-7. The Allocation Committee also examined
each firm’s reported lodestar as determined by the court-38
appointed auditor. Generally, it considered the lodestar for each
firm through June 30, 2001, but added over $6.3 million to the
lodestar for the Levin, Fishbein firm to reflect time expended on
matters up to September 30, 2002. After weighing the above
criteria, and reviewing the various lodestars, the Allocation
Committee measured the relative contribution of each firm and
quantified that contribution by assigning the firm a percentage
of the interim award.
A number of firms—including the Bloom, Lopez-Hodes,

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and Nisen & Elliott Appellants—filed objections to the
Allocation Committee’s proposed allocation with the District
Court. In May 2003, in Pretrial Order No. 2859 the District
Court approved the Committee’s fee allocation with the
exception of modifying the award to exclude the Levin,
Fishbein fee award for time incurred after June 30, 2001. See
Pretrial Order No. 2859 at 22-23. As a result of the order, 52%
of the MDL portion of the fee award was allocated to three law
firms to which four out of five Allocation Committee members
belong, and one firm (with two of its attorneys on the
Allocation Committee) received nearly $58 million of the $131
million allocated to MDL firms. The Bloom, Lopez-Hodes, and
Nisen & Elliott Appellants essentially challenge, inter alia, the
District Court’s almost complete approval of the Committee’s
allocation.
B.
A review of the various decisions addressing the
allocation of attorneys’ fees among counsel reveals two
competing lines of analysis—the delegation approach and the
reexamination approach. The former rests generally on practical
considerations and stems from decisions which, for the most
part, have not involved numerous serious objections to both the
outcome of the fee allocation and the procedure from which the
fee allocation was set.
Although the delegation approach has gained acceptance,

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it is not beyond criticism. Significantly, along the line of
analysis of the reexamination approach, the Second Circuit
Court of Appeals has acknowledged that there is “authority for
a court, under certain circumstances, to award a lump sum fee
to class counsel in an equitable fund action under the lodestar
approach and then to permit counsel to divide this lodestar-
based fee among themselves under the terms of a private fee
sharing agreement. . . .” In re “Agent Orange” Prod. Liab.
Litig., 818 F.2d 216, 223 (2d Cir. 1987). The Second Circuit
rejected this authority, however,
to the extent it allows counsel to divide the award
among themselves in any manner they deem
satisfactory under a private fee sharing agreement.
Such a division overlooks the district court’s role
as protector of class interests under [Federal Rule
of Civil Procedure] 23(e) and its role of assuring
reasonableness in the awarding of fees in
equitable fund cases.
Id.
With these considerations in mind, there are at least three
ways in which the fee allocation here may be cause for concern.
These concerns, however, can be addressed in a way that serves
the court’s role as protector of class interests without
abandoning the approach of looking to the views of counsel for
assistance.

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1. Exclusion of Unaudited Time
The District Court’s sole disagreement with the
Allocation Committee’s proposed apportioning to the MDL
firms was the latter’s inclusion of approximately $6.3 million in
unaudited time in the proposed award to Levin, Fishbein. After
indicating that it had reviewed the award to Levin, Fishbein with
“special care” because of the “potential for unfairness,” the
District Court excluded the unaudited time out of an “abundance
of caution” so that the “allotments [would] all involve
approximately the same time period.” Pretrial Order No. 2859
at 22-23.
The decision simply to reduce the amount of Levin,
Fishbein’s award (and the total amount of the interim fee award)
by the lodestar amount of $6.3 million is inconsistent with the
manner in which the Allocation Committee arrived at its
proposed fee allocation. That is, it did not recommend an award
of fees simply on the basis of the lodestar. Instead, after
weighing the various factors, the Committee allocated a
percentage of the total fee award to each firm. Levin, Fishbein
received 44% of the fees, which was approximately 2.38 times
the amount of its lodestar. Arguably, then, the District Court
should have reduced Levin, Fishbein’s award by 2.38 times the
lodestar sum of $6.3 million (that is, by approximately $15
million) or reassessed Levin, Fishbein’s contribution or directed
the Committee (perhaps absent its Levin, Fishbein members) to
reconsider its allocation recommendation.

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2. Consultation with the State Judges’ Committee
Evidently in view of certain legal requirements under
Illinois law limiting the recovery of medical monitoring costs,
the District Court excluded users of diet drugs residing in
Illinois from the nationwide certified class. See Pretrial Order
No. 865. A state-wide class was certified in Illinois state court
in December 1998, several months prior to the initiation of
“global” settlement discussions and prior to the certification of
the nationwide federal class in August 1999. The Settlement
Agreement, entered into in November 1999, provided, inter alia,
that class members were entitled to: (1) reimbursement if they
obtained private echocardiograms prior to the implementation of
the settlement; and (2) refunds for the diet drugs they purchased.
These remedies had been pursued by the Nisen & Elliott
Appellants with respect to the class certified in Illinois state
court.
As a means of assisting the District Court in matters
pertaining to the settlement and the award of counsel fees, the
Settlement Agreement called for the creation of a judges’
committee:
A State Court Judicial Advisory Committee . . .
will consist of the judges from the State Courts
which, as of October 7, 1999, had issued any
order certifying state-wide class actions in relation
to the effects of Pondimin and/or Redux.

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The State Court Judicial Advisory Committee
shall provide advice and counsel on all matters
pertinent to the Settlement. . . . In addition, prior
to making any award of counsel fees and
reimbursement of litigation expenses, the Federal
District Court shall consult with and give
substantial deference to the views of the State
Court Judicial Advisory Committee concerning
the actual contribution which was made to the
overall resolution of the litigation by the attorneys
with whom the members of the committee are
familiar.
(emphasis added). The District Court established the State
Court Judicial Advisory Committee (the “State Judges’
Committee”), and it met on several occasions with the District
Court prior to June 2001.
Following the District Court’s approval of the Settlement
Agreement, attorneys from the MDL firms and attorneys
representing the class actions pending in various state courts
filed a joint petition for an award of attorneys’ fees, collectively
requesting more than $400 million. Before the joint petition was
filed, a private fee-sharing agreement had been negotiated by
attorneys representing class actions in Texas, New York, New
Jersey, Pennsylvania, and West Virginia. The Nisen & Elliott

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The Nisen & Elliott Appellants include four of the five law39
firms that represented the state-wide certified class in the Illinois diet
drugs litigation. The fifth firm that represented the Illinois class did
not object to the fee allocation.
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Appellants in Illinois were not parties to that agreement.39
Under it, the attorneys representing the class actions in those
five states would receive approximately 97% of fees potentially
available for allocation to state court counsel. The Allocation
Committee recommended an award to the Nisen & Elliott
Appellants that they objected to as significantly understating
their contribution to the nationwide settlement, which included
the remedies noted above.
The District Court rejected the Nisen & Elliott
Appellants’ argument:
The real issue is whether the allocation proposed
by the [Allocation] Committee for Illinois counsel
. . . is fair and reasonable. Ultimately, the
C om m ittee analyzed Illinois counsel’s
participation in this litigation as it had the other
firms, by considering their relative contribution to
the overall outcome of the litigation. In the
context of the entire litigation, the efforts of the
Illinois firms, though valuable and inuring to the
common benefit of the Class, were limited.
Outside of the state class certification in Illinois,

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these firms performed little, if any, work on this
matter.
Pretrial Order No. 2859 at 31-32 (footnote omitted). Thus the
District Court found that the Allocation Committee’s
recommended award was fair and reasonable without
mentioning the State Judges’ Committee, notwithstanding that
the Nisen & Elliott Appellants had requested that the District
Court consult with the State Judges’ Committee.
Moreover, in a letter that was dated just two days before
the District Court’s hearing on the recommended fee allocation,
a member of the State Judges’ Committee—Justice Ellis Reid of
the Appellate Court of Illinois, First District (who had presided
over the Illinois diet drug class action when he was the Circuit
Court Judge for the Circuit Court of Cook County,
Illinois)—wrote to the District Court. The letter pointedly
questioned the District Court’s procedures with respect to fee
allocations:
As a member of the State Court Judicial Advisory
Committee it was my understanding, based upon
the provisions of the Nationwide Settlement
Agreement, that my views concerning the
contributions made by Illinois [counsel] would be
given substantial deference in any award of
counsel fees to the state court attorneys who
represented the six statewide class actions

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certified prior to the Nationwide Settlement. I am
writing to express my concerns that this has not
happened and, as a result, certain Illinois class
counsel are being prejudiced.
Justice Reid further questioned the appropriateness of the
Allocation Committee’s recommended portion to the Nisen &
Elliott Appellants.
The Nisen & Elliott Appellants argue that the District
Court’s failure to consult with the State Judges’ Committee
ignored the terms of the Settlement Agreement. They are
correct. Under the express terms of the Settlement Agreement
approved by the District Court, the State Judges’ Committee
should have been consulted. This is significant from a
procedural standpoint, notwithstanding the fact that the state
court counsel had entered into the fee-sharing agreement. The
members of the State Judges’ Committee, unlike those of the
Allocation Committee, did not have a financial interest in the
outcome of the fee allocation. In such a complex case, soliciting
and taking into account the views of disinterested jurists familiar
with the proceedings should have occurred. Those views would
provide a valuable procedural check on at least some of the
recommendations of the Allocation Committee.
3. Degree of Deference to the Committee’s
Recommendations

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There is yet another aspect of the fee allocation process
that raises serious questions about how the Allocation
Committee’s proposed “cutting-up-the-pie” should be reviewed
by the District Court. The Court afforded a high degree of
deference to the Allocation Committee’s recommendation,
stating: “Although the ultimate decision with respect to the
award and allocation of counsel fees is reserved for the court,
we will give substantial deference to the recommendation of the
Committee as long as we conclude the recommendations are fair
and reasonable.” Pretrial Order No. 2859 at 15-16. Further, a
comparison between the District Court’s opinion and the
Allocation Committee’s explanation of its recommended fee
apportioning through June 30, 2001 reveals that the District
Court tracked the Committee’s recommendation to the dollar.
The District Court correctly points out that other courts
have afforded deference to the views of lead counsel in
allocating awards of fees. In re Copley, for example, explained:
In the case at bar, when the Court became aware
that class counsel could not reach a unanimous
stipulation, it necessarily gave substantial
deference to Lead Counsel’s proposed allocation.
In a case of this magnitude, the assistance of Lead
Counsel on matters such as this is especially
invaluable. Accordingly, this Court, after
reviewing the previous submissions of class
counsel as to hours and expenses, relying on

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previous discussions with Lead Counsel as well as
other members of class counsel, and weighing the
relative responsibilities of class counsel members
and their contribution to this litigation, as well as
when respective attorneys became involved in this
litigation, found Lead Counsel’s allocation to be
fair and reasonable.
50 F. Supp. 2d 1141, 1147-50 (D. Wyo. 1999) (citations
omitted); see also, e.g., In re Indigo Sec. Litig., 995 F. Supp.
233, 234 (D. Mass. 1998). Likely because of perceived
practical necessity, courts have shown an eagerness to defer to
counsel’s views in allocating attorneys’ fees.
But counsel have inherent conflicts. They make
recommendations on their own fees and thus have a financial
interest in the outcome. How much deference is due the fox
who recommends how to divvy up the chickens? A template I
suggest for consideration is our deference-determination scale
in Employee Retirement Income Security Act (“ERISA”) cases.
In Pinto v. Reliance Standard Life Insurance Co., 214 F.3d 377
(3d Cir. 2000), we addressed the standards to be employed in
reviewing the denial of a request for benefits under an ERISA
plan by an insurance company that both determines eligibility
for benefits and pays those benefits out of its own funds. That
is, we considered what standard of review is appropriate when
“the nature of the relationship between the funds, the decisions,
and the beneficiary invites self-dealing. [A]n inherent conflict

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[exists] between the roles assumed by an insurance company
that administers claims under a policy it issued. . . . Because an
insurance company pays out to beneficiaries from its own assets
rather than the assets of a trust, its fiduciary role lies in perpetual
conflict with its profit-making role as a business.” Id. at 384-85
(quoting Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d
1556, 1561 (11th Cir. 1990)). After surveying the law in other
circuits, we rejected the requirement that bias must be
specifically demonstrated, and adopted a sliding scale approach
to the standard of review. Pinto, 214 F.3d at 389-93. That
approach allows each case to be examined on its facts. The
court may take into account the sophistication of the parties, the
information accessible to them, and the exact financial
arrangement between the insurer and the company. Id. at 392.
While the analogy between Pinto and our case is
imprecise (Pinto considered the fiduciary duties of insurers),
Pinto’s teachings remain relevant for several reasons. First, it
illustrates a willingness to examine critically decisions of non-
judicial bodies that may have a financial interest in the outcome
of their decisions or recommendations. Second, Pinto supports
the view that, when a conflict of interest is present, the
reviewing court should consider on a fact-specific basis how
much deference should be afforded to the views of a group
potentially affected by self-dealing.
Though the insurance companies discussed in Pinto may
have been affected by a “structural conflict of interest [that]

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unconsciously encourage[d] even a principled fiduciary to make
decisions that are not solely in the interest of the beneficiary,”
id. at 384 (discussing Brown, 898 F.2d at 1561), the members of
the Allocation Committee had a direct conflict of interest: they
were suggesting to the District Court how to proceed on matters
near and dear—dividing a limited fund among themselves and
other firms. Such a direct conflict of interest strongly suggests
that affording substantial deference is inappropriate.
While the District Court’s allocation may ultimately be
fair, careful attention must be paid to the procedures by which
the allocation is set. In this regard, there is room for flexibility.
To the extent the District Court chooses to rely on the
recommendations of a committee of interested attorneys, it then
becomes necessary to scrutinize more closely those
recommendations. By soliciting the views of less interested
individuals or a disinterested body like the State Judges’
Committee, and allowing objections, the conflict of interested
counsel becomes less of a factor.
* * * * *
I join my colleagues’ conclusion that appellate
jurisdiction does not exist in our case. However, I am not as
sanguine as they that plausible arguments do not exist in certain
circumstances for appellate jurisdiction under Rule 54(b) or the
collateral order doctrine. The rest—attending to attorneys’ fee
allocations—is but dicta once removed. It is, however, an

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attempt to forestall claims that courts that follow
recommendations of fee allocation committees controlled by
counsel with conflicts exercise scrutiny-lite.

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