U.S. District Judge Joseph Goodwin of the Southern District of West Virginia.

An Ohio law firm is appealing an order allocating an estimated $550 million in attorney fees in the transvaginal mesh litigation, asserting that the eight firms in charge of doling out the funds enriched themselves at the expense of others.

The filing, submitted by Cleveland-based Anderson Law Offices on Aug. 9 before the U.S. Court of Appeals for the Fourth District, is the latest in an ongoing dispute over common benefit fees in the multidistrict litigation over the mesh devices. Benjamin Anderson, founder of the appellant firm, is a member of the plaintiffs’ steering committee who is objecting to his $7.2 million share of the common benefit fund. The move threatens to halt the first payouts to 94 law firms expecting to receive common benefit fees following U.S. District Judge Joseph Goodwin’s July 25 allocation order.

An attorney representing the fee and cost committee, Raymond Franks, argued in a dismissal motion filed Aug. 9 that Anderson Law Offices had waived its right to appeal when it agreed to accept common benefit fees as part of a 2012 court order.

“Appellant’s contention that it should not be bound by the appellate waiver because it anticipated a different process or a more favorable outcome is comparable to a criminal defendant arguing that an appellate waiver made in a plea agreement should be disregarded because the sentence later imposed was unexpectedly harsh,” wrote Franks, of Bailey & Glasser in Charleston, West Virginia.

Anderson did not respond to a request for comment, but his lawyer provided an emailed statement.

“We are looking forward to having our own opportunity to argue the question of whether district courts can require a waiver of appeal rights as a condition for considering a monetary award, which appears to be a matter of first impression in federal jurisprudence,” wrote Paul Flowers of Paul W. Flowers Co. in Cleveland. “In our view, the entire fee allocation process failed to comport with the most basic notions of due process and fair play, which merits careful review in the Fourth Circuit.”

Franks referred requests for comment to the fee and cost committee’s chairman, Henry Garrard of Blasingame, Burch, Garrard & Ashley in Athens, Georgia. Garrard declined to comment.

Anderson Law Offices is not the first firm to appeal mesh fees. Philadelphia’s Kline & Specter petitioned the Fourth Circuit to reverse a Jan. 30 order by Goodwin of the Southern District of West Virginia, approving a 5% holdback of fees, which would establish a common benefit fund of potentially $550 million based on an estimated $11 billion in settlements. Goodwin is overseeing seven multidistrict litigation proceedings that at one point surpassed 100,000 lawsuits.

Kline & Specter, along with two other firms, had objected to the holdback, calling the mesh settlements “puny” in comparison to the jury verdicts that firm obtained, many of which were in state court. It appealed Goodwin’s order, but, on June 14, the Fourth Circuit dismissed the petition, agreeing with the fee and cost committee that Kline & Specter, as in Anderson Law Offices’ filing, waived its right to appeal when it accepted common benefit fees. On July 15, the Fourth Circuit rejected Kline & Specter’s petition for rehearing.

Kline & Specter’s Shanin Specter did not respond to a request for comment.

Kline & Specter, Anderson Law Offices and two other firms objected to recommendations about how much each of them would get from the common benefit fund. Many of the objections, including that of Anderson Law Offices, focused on the work done on one of the first mesh trials in the nation, in New Jersey’s Atlantic County Superior Court, where defendant Johnson & Johnson lost an $11 million verdict in 2013.

Adam Slater, of Roseland, New Jersey’s Mazie Slater Katz & Freeman, accused the fee and cost committee of self-dealing and bill padding to ensure they would receive the majority of the fees. He cited a comment from Daniel Stack, a retired judge on the Madison County, Illinois, Circuit Court, appointed as an “external review specialist” to review the fee allocation process, that he “was sickened” and “angered” by such conduct. Garrard fired back, accusing the objectors of making false attacks and submitting bills “riddled with excessive entries, duplicative billing.”

On March 12, Stack and the fee and cost committee issued their recommendations on how to allocate the fees.

On July 25, Goodwin, in the Southern District of West Virginia, adopted those recommendations as “fair and reasonable” without mentioning the allegations. He pointed to the heavy investments that the firms with the highest allocation in fees made to the litigation, among other things.

“This extraordinarily large group of multidistrict litigation required unprecedented coordination and cooperation among and between the leadership counsel and those other lawyers who performed work for the common benefit of each of the individual plaintiffs,” he wrote. The law firms on the fee and cost committee were “substantially responsible” for about 75% of the total number of mesh cases, he added. “Members of the FCC were major contributors to, and claimants of, the monies contributed to the common benefit fund. Their diverse and competing interests offered a large measure of mutually assured fairness to the process.”

The objections, he concluded, were “entirely without merit.”

Goodwin ordered that the first quarterly payments go out Jan. 15.

Neither Slater nor Stanley Bernstein and Sandy Liebhard, name partners of New York’s Bernstein Liebhard, the fourth firm, responded to requests for comment.

Anderson Law Offices filed dual motions to partially alter, amend or reconsider the judgment, and for a stay of execution of the judgment, which would halt the fee payouts, until he completed his planned appeal to the Fourth Circuit. The firm’s lawyers argued that the allocation failed to consider the actual billing of lawyers on the fee and cost committee, who stood to earn $738 per hour on average, despite relying heavily on paralegals. Anderson Law Offices’ average hourly rate was less than $343.

The fee and cost committee, in response, called the judgment motion “replete with misstatements of fact” and “completely meritless.” The stay motion, the committee said, was “the latest in a series of unfounded efforts by Anderson Law Offices and a small group of fellow objectors to frustrate and forestall the common benefit allocation process because they disagree with the amount of fees and expenses they are to receive.”

Goodwin rejected both motions this month.

Anderson Law Offices is due to respond to the fee and cost committee’s motion to dismiss its appeal by Aug. 19. In its stay motion before Goodwin, the firm’s lawyers acknowledged the appeal waiver but insisted their client had “no choice” but to sign it. Further, the firm’s lawyers argued, it was unaware that the fee and cost committee, in a “behind-closed-doors decision-making,” would disregard billing records in allocations to its own members, leading to a “manifestly unfair playing field.”

“Breach of the agreement is a valid basis for releasing a party from an appellate waiver agreement,” they wrote.

The fee disputes are not just in West Virginia. In Texas, two lawsuits filed this summer allege that Houston’s Clark, Love & Hutson, whose managing partner, Clayton Clark, is on the fee and cost committee for the mesh litigation, missed the statute of limitations for possibly thousands of mesh cases. (Clark, Love & Hutson, which stands to earn more than $45 million in fees for the mesh litigation, later filed its own lawsuit against the plaintiffs firm in both cases, Beggs Landers Law Firm, alleging its lawyers stole trade-secret client lists and improperly solicited the pelvic mesh clients, among other things.)

At least six other firms in New Jersey and Texas face another legal malpractice lawsuit, filed by Slater, alleging they used invalid retainer agreements to charge illegally excessive contingency fees for more than 1,400 clients who sued over transvaginal mesh devices, according to a new class action. Those firms include Nagel Rice in Roseland, New Jersey, and the Potts Law Firm in Houston, where managing partner, Derek Potts, serves on the executive committee in the mesh litigation. Riley Burnett, of Burnett Law Firm, another Houston firm named in the case, is on the fee and cost committee.