NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 22-2019

___________

ANTHONY MARTINO,

on behalf of himself and all other persons similarly situated,

 Appellant 

v.

DAVID MAZIE, Esq.; ADAM SLATER, Esq.; MAZIE SLATER KATZ

& FREEMAN, LLC, hereinafter “Mazie Slater” 

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-21-cv-20056)

District Judge: Hon. Robert B. Kugler

____________

Submitted Under Third Circuit L.A.R. 34.1(a)

(January 26, 2023)

Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges.

(Filed: February 14, 2023)

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OPINION*

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

HARDIMAN, Circuit Judge.

Anthony Martino appeals the District Court’s order dismissing his complaint with 

prejudice. For the reasons that follow, we will affirm.

I

Martino sued his lawyers, David Mazie and Adam Slater, and their law firm,

Mazie Slater Katz & Freeman, LLC (collectively, Mazie Slater). Mazie Slater represented 

Martino and over 200 others in a products liability multidistrict litigation in the United 

States District Court for the District of New Jersey. Slater was co-lead counsel in the 

MDL, which involved the blood pressure medication Olmesartan and eventually settled 

for over $300 million dollars. 

After settlement, Martino filed a putative class action against Mazie Slater in New 

Jersey state court on behalf of all clients Mazie Slater represented in the Olmesartan 

MDL. He alleged legal malpractice, conversion of funds, and unjust enrichment. The 

complaint asserts that Mazie Slater received contingent fees from the Olmesartan MDL in 

violation of various New Jersey court rules applicable to litigation in federal court under 

the District of New Jersey’s local rules. Mazie Slater removed the case to the District 

Court. Because the civil docket sheet indicated that the case was related to the 

Olmesartan MDL, it was assigned to the same judge who had handled the MDL (the 

Honorable Robert B. Kugler). Mazie Slater moved under Rule 12(b)(6) of the Federal 

Rules of Civil Procedure to dismiss the complaint with prejudice. Martino responded 

with a motion for summary judgment, claiming that Mazie Slater violated New Jersey 

Rules of Court 1:21-7(i), (c), and (f). 
3

The District Court granted Mazie Slater’s motion to dismiss with prejudice and 

denied Martino’s motion for summary judgment as moot. Martino v. Mazie, 2022 WL 

1443689, at *1 (D.N.J. May 6, 2022). Martino timely appealed. 

II1

We exercise plenary review and can affirm the dismissal on any basis the Rule 

12(b)(6) record supports. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012);

Hassen v. Gov’t of V.I., 861 F.3d 108, 114 (3d Cir. 2017).

Martino argues that the District Court resolved Mazie Slater’s Rule 12(b)(6) 

motion improperly by “deciding many disputed issues of material fact” and relying on 

materials not appropriately considered on a motion to dismiss. Martino Br. 13; Reply Br. 

5. But we need not decide whether the District Court converted Mazie Slater’s Rule 

12(b)(6) motion into a Rule 56 motion by relying on inappropriate materials. See Fed. R. 

Civ. P. 12(d). Any procedural error accompanying a possible conversion would be

harmless because Martino’s complaint warrants dismissal under Rule 12(b)(6). See 

Wolfington v. Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 199 (3d Cir. 

2019).

A

Martino alleges that Mazie Slater should have credited its individual MDL clients 

for monies it received through the MDL settlement’s common benefit fund (CBF). 

Martino has identified no legal authority supporting the theory that awards disbursed 

1 We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction under 

28 U.S.C. § 1332(d)(2)(A).
4

from CBFs by court order to attorneys who exercised leadership roles in MDLs must be 

credited or paid to the attorneys’ clients.2 And we know of none. So the MDL plaintiffs 

were never entitled to the CBF award—which, as the District Court noted, was 

“remuneration to the Olmesartan registrants’ attorneys for their efforts to steer the MDL

litigation” to settlement. Martino, 2022 WL 1443689, at *8 (emphasis added). As the 

District Court wrote in its order approving the CBF distribution, it compensated work 

done and expenses incurred by MDL attorneys “for the common benefit of all MDL 

plaintiffs,” not for work governed by each retainer agreement. App. 149; see also App. 

152 (District Court order distributing attorneys’ fees and costs for “common benefit work 

. . . expended in this MDL”). So Martino’s allegation of “improper double dipping,” 

Reply Br. 19, can’t support legal malpractice, conversion, or unjust enrichment claims. 

Because double-billing was the only allegation supporting Martino’s unjust enrichment 

claim, the District Court properly dismissed that claim.

3

Martino likewise cites no law supporting his suggestion that Mazie Slater had to 

disclose its potential receipt of CBF awards to its MDL clients. He argues that Rule 

2 Martino cites an unpublished, out-of-circuit district court opinion to support his doublebilling theory. But that case did not involve an MDL or CBF—it was about calculating 

hours worked under the Eleventh Circuit’s “lodestar” standard. Beckford v. Dep’t of 

Corr., Fla., 2008 WL 11333851, at *1 (S.D. Fla. Sept. 8, 2008).

3 The District Court thought the unjust enrichment claim turned on a violation of Rule 

1:21-7(i). Martino, 2022 WL 1443689, at *1. But the complaint’s third count accuses 

Mazie Slater only of “retain[ing] a benefit to which it is not entitled” by “fail[ing] to 

credit the plaintiff and class members with reimbursement of expenses that Defendants

received from the [Olmesartan] settlement as part of their leadership position.” App. 46. 

This allegation references the CBF funds. And in his response to the motion to dismiss, 

Martino defended his unjust enrichment claim only on CBF grounds.
5

1.5(c) of New Jersey’s Rules of Professional Conduct mandated disclosure. That rule 

requires attorneys, “[u]pon conclusion of a contingent fee matter,” to “provide the client 

with a written statement stating the outcome of the matter” and the amount of remittance.

R.P.C. 1.5(c). But a court-managed CBF is distinct from an attorney-client retainer 

agreement, and CBF awards are distinct from contingent fees. As the District Court stated 

when ordering the CBF distribution, disbursement would occur “only after the awards to 

all participants in the Olmesartan settlement have been paid or distributed.” App. 152 

(emphasis added). So Martino’s Rule 1.5(c) allegation also failed, as a matter of law, to 

entitle him to relief. 

Martino argues as well that Mazie Slater violated Rule 1.5(a) of the Rules of 

Professional Conduct by not decreasing the amount it charged its MDL clients in view of 

its anticipated CBF award. Rule 1.5(a) lists eight factors “to be considered in determining 

the reasonableness of a fee.” R.P.C. 1.5(a). None of them encompasses receipt of courtordered CBF awards, however, presumably because CBF awards are not attorney’s fees.

B

Martino also alleges that Mazie Slater violated New Jersey Rule of Court 1:21-

7(c). That rule caps contingent fees by requiring attorneys seeking a fee on more than $3 

million in damages recovered for any client to apply for court approval of a “reasonable 

fee.” N.J. Ct. R. 1:21-7(c)(5). The assigned judge determines “a reasonable fee in light of 

all the circumstances.” Id. at 1:21-7(f). 

The complaint fails to state a claim for relief under Rule 1:21-7(c) because 

Martino has not alleged any facts, let alone plausible ones, showing that Mazie Slater 
6

violated the rule. See Sweda v. Univ. of Pa., 923 F.3d 320, 325–26 (3d Cir. 2019).

Martino has not alleged that he or Mazie Slater’s other individual MDL clients recovered 

an amount requiring court approval (more than $3 million in damages). Martino’s related

allegations merely “embod[y] a legal point” by asserting generic conduct that would 

violate the rule. Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016); see, 

e.g., App. 44–45 (asserting that Mazie Slater “failed to honor the New Jersey Court 

Rules” by “t[aking] fees and costs without court approval”). These conclusory allegations 

failed to state a claim. 

C

The last allegation on which Martino’s legal malpractice and conversion claims 

depend is Mazie Slater’s violation of Rule of Court 1:21-7(i). That rule, titled 

“Calculation of Fee in Settlement of Class or Multiple Party Actions,” states:

When representation is undertaken on behalf of several persons whose 

respective claims, whether or not joined in one action, arise out of the same 

transaction or set of facts or involve substantially identical liability issues, 

the contingent fee shall be calculated on the basis of the aggregate sum of all 

recoveries, whether by judgment, settlement or both, and shall be charged to 

the clients in proportion to the recovery of each. 

N.J. Ct. R. 1:21-7(i). Martino does not argue on appeal that the claims of Mazie Slater’s 

MDL clients “ar[o]se out of the same transaction or set of facts.” So we must decide only

whether Martino’s complaint plausibly alleges that those claims “involve[d] substantially 

identical liability issues.”4

4 Martino contends that Mazie Slater should have been judicially estopped from arguing 

that the MDL claims of the putative class didn’t “involve substantially identical liability 

issues” because Mazie Slater argued the “exact opposite” in the MDL. Martino Br. 40. 
7

The complaint alleges no facts that, taken as true, entitle Martino to relief under 

Rule 1:21-7(i). The complaint says nothing about the liability issues implicated by Mazie 

Slater’s MDL clients’ claims. It does assert that Mazie Slater represented each member of 

the putative class in the Olmesartan MDL. But that doesn’t show a violation of the rule. 

Transfer and consolidation of civil actions pending in district court are permitted where 

the actions “involv[e] one or more common questions of fact.” 28 U.S.C. § 1407(a). 

Actions involving at least one common question of fact need not contain claims that 

“involve substantially identical liability issues,” as the rule requires. So the District Court 

did not err when it rejected Mazie Slater’s alleged violation of Rule 1:21-7(i) as a ground 

for relief on the legal malpractice and conversion claims. 

* * *

We will affirm the District Court’s order dismissing Martino’s complaint with 

prejudice for the reasons stated. In light of this disposition, we will deny Martino’s 

request to certify legal questions to the Supreme Court of New Jersey. 

Martino rests his argument on a two-page filing before the Judicial Panel on Multidistrict 

Litigation in which Mazie Slater “request[ed] consolidation,” under 28 U.S.C. § 1407, of 

Olmesartan actions in the District of New Jersey. App. 199. 

We reject this contention. Mazie Slater’s argument that MDL consolidation was proper 

under § 1407 is not “irreconcilably inconsistent” with its argument that the MDL claims 

of the putative class did not involve substantially identical liability issues, and there is no 

evidence that Mazie Slater took these positions in “bad faith.” Montrose Med. Grp. 

Participating Sav. Plan v. Bulger, 243 F.3d 773, 779 (3d Cir. 2001) (cleaned up).