Then he questioned the fundamental application of the common benefit doctrine, which is frequently used to compensate lead counsel in multidistrict litigation.

"The fact that counsel is even requesting such a far-reaching order—a request that has some support from past MDL practice—suggests that courts and attorneys need clearer guidance regarding attorney compensation in mass litigation, at least outside the class action context," he wrote. "The Civil Rules Advisory Committee should consider crafting a rule that brings some semblance of order and predictability to an MDL attorney compensation system that seems to have gotten totally out of control."

Lead plaintiffs' counsel—Aimee Wagstaff, of Andrus Wagstaff in Lakewood, Colorado; Michael Miller, of The Miller Firm in Orange, Virginia; and Robin Greenwald, of Weitz & Luxenberg in New York—did not respond to a request for comment.

The fee fight in the Roundup multidistrict is the latest dispute among plaintiffs' lawyers over common benefit fees. Chhabria issued a general common benefit order in 2017 that did not give a specific percentage holdback.

Lead counsel later requested an 8.25% holdback, which Chhabria criticized at a March hearing. But, in Monday's order, his primary aim was at the use of the common benefit doctrine in the Roundup multidistrict litigation.

"The breathtaking nature of lead counsel's request, along with the many objections filed in response to it, have prompted the court to go back and ask: what is the source of a district court's power to create and require contributions to a common benefit fund, and how far does that power reach?" he wrote.

The common benefit doctrine is a "questionable source of support for creating and requiring contributions to a fund in a situation like this," he wrote.

That's because, unlike in most multidistrict litigation cases, the defendant did not reach a global settlement, which gives a judge jurisdiction over an existing fund, a portion of which can be allocated for common benefit fees, he wrote.

Last year, Bayer, which owns Monsanto, announced that it planned to settle about 125,000 Roundup claims for an estimated $10.9 billion. But lawyers, including lead counsel, conducted their own negotiations, and many cases remain unsettled.

Applying the common fund doctrine to this kind of arrangement "seems like a stretch," he wrote.

"Lead counsel has not asked this court to reimburse them from some fund or property interest that was preserved or established as a result of a victory against, or settlement with, Monsanto," he wrote. "Rather, lead counsel asked the court to create a fund at the outset—before any judgment was entered and before liability was established—and to require contributions from individual recoveries down the line, whenever they were reached."

Common benefit holdbacks on plaintiffs who are part of a multidistrict litigation proceeding have more support from case law that grants judges "inherent managerial authority" over their courtrooms, than from the common benefit doctrine, he wrote.

But, even then, there should be limits on judges in multidistrict litigation.

"That lead counsel was even willing to make such a request is perhaps reflective of a more widespread problem in the MDL world—a pervasive assumption that MDL courts have the power (or should have the power) to solve every problem or imperfection imaginable relating to mass tort litigation," he wrote.

One example, he wrote, was the impact of rampant TV advertising by other plaintiffs' lawyers and concern about "free riders," which "seems to have evolved into an obsession."

Chhabria is not the only one questioning the Roundup fee request. The proposed order drew numerous objectors, many insisting that lead counsel already made $2 billion in attorney fees from contingency fee contracts associated with settlements of their own cases.

In Monday's order, Chhabria noted that lead counsel are likely making enough "that they can each afford to buy their own island." But they also accepted leadership roles under the assumption that they would get common benefit fees—a key reason why Chhabria decided to grant the proposed order. Chhabria said he would have Ken Feinberg, the special master he appointed to help in the negotiations to settle the Roundup cases, evaluate the common benefit requests.

But he declined to approve the .25% holdback on litigation costs, giving lead counsel 21 days to explain why such a request is necessary.

He also limited the 8% holdback on fees to firms that had at least one case pending in the MDL. The order would not apply to lawyers who signed a participation agreement in exchange for "work product" in the multidistrict litigation, or to those who filed lawsuits in state courts, even if they have a client in the multidistrict litigation or sought help from Feinberg in settlement negotiations, because, in such cases, "the court is exercising authority over disputes that are not before it and over property that is not before it, without any clear limit on the court's reach."

Chhabria acknowledged, however, that much broader holdback orders in numerous other cases have included lawyers outside the multidistrict litigation. But few of those orders, he wrote, considered whether judges had the authority to issue them.

"Perhaps the prevalence of these orders suggests that this court is wrong about the limits of a district court's authority," he wrote. "But perhaps it's a sign that we are too quick to assume that MDL courts can do whatever they want."