Strong v. Bellsouth Telecommunications Inc. , 137 F.3d 844 ( 1998 )

REVISED, April 17, 1998
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 97-30378
____________
JAMES T STRONG, Individually and on behalf of
the Class of All Others Similarly Situated;
MASSEY K MCCONNELL, Individually and dba B A S
Const Co; RENE JACKSON; PAMELA DIANE WALTERS
HENRY; CLEOPHAS MAY,
Plaintiffs
JAMES T STRONG, Individually and on behalf of
the Class of All Others Similarly Situated;
MASSEY K MCCONNELL, Individually and doing
business as B A S Const Co,
Plaintiffs - Appellants,
versus
BELLSOUTH TELECOMMUNICATIONS INC, doing
business as South Central Bell,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
March 23, 1998
Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Plaintiffs’ counsel appeal the district court’s order denying
an additional $1.5 million in attorneys’ fees and costs. Finding
no abuse of discretion, we affirm.
I
Plaintiffs brought suit in Louisiana against BellSouth
Telecommunications, Inc. (“BellSouth”), alleging that BellSouth
violated antitrust laws by misleading customers about its inside
wire maintenance service plan (“IWMS plan”). Specifically,
plaintiffs claimed that BellSouth told its customers that they
would not receive the IWMS plan unless they affirmatively elected
it, but then treated customers’ silence as acceptance of the plan,
thereby leveraging its local telephone service monopoly to acquire
a monopoly of the IWMS plan. Parallel suits were filed in
Mississippi, Alabama, and Tennessee.1
As in the companion suits, the plaintiffs here sought to
certify a class pursuant to FED. R. CIV. P. 23 on behalf of all
residential and small business customers receiving the IWMS plan.
The district court, however, denied class certification. The
parties subsequently entered into settlement negotiations and,
after mediation, reached a global settlement agreement (the
“Agreement”), which covered the seven pending suits and
conditionally certified the class for settlement purposes. In the
Agreement, BellSouth agreed to provide settlement class members
with information that fully described the IWMS plan and its terms
and conditions. The settlement class members then had the option
to either (1) continue as a subscriber to the plan under the stated
terms and conditions, or (2) cancel the service and, if eligible,
obtain a credit on their monthly telephone bill for up to twenty-
1
Suits were brought in federal court in each of the four
states and in state court in Alabama, Louisiana, and Mississippi.
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four months as long as they continued to receive local telephone
service from BellSouth. The amount of the available credit varied
by state: for Louisiana and Mississippi, the credit amounted to
$0.80 per month, for Alabama, $0.60 per month, and for Tennessee,
$0.50 per month. To be eligible for the credit, the customer had
to have paid for the IWMS plan for six months prior to the date the
class was established and not had a repair or service call between
January 1, 1987 and the date the class was established.2
Plaintiffs’ counsel calculated that if every class member were
eligible for and elected to receive the credit, BellSouth’s
liability would amount to approximately $64 million))a sum which
plaintiffs’ counsel refers to as a $64 million “common fund.”
BellSouth also agreed to pay an additional $6 million to
plaintiffs’ counsel for attorneys fees and costs. The original,
unamended Agreement addressed attorneys’ fees as follows:
14. South Central Bell will pay Plaintiffs’ counsel
the total sum of six million dollars ($6,000,000) as
reasonable compensation for fees, time, work and all
expenses (including, but not limited to, court costs,
expense of depositions and expert fees) spent in
representation of the Plaintiffs and Settlement Class
Members in all cases on Exhibit A. . . . The Notice of
Class Settlement shall include a statement that South
Central Bell has agreed to be responsible for such costs
and attorneys’ fees that are attributable to the
litigation in that state and that they shall not be
2
While the district court did not specifically address how
many class members would be ineligible to receive the credit, the
record reveals that BellSouth made over 250,000 dispatches for
inside wire service in each of 1993 and 1994 and over 120,000 for
1995 (through May 1995). Also, a class member who was eligible for
a credit at the time of the election would become ineligible if he
moved out of the state or to an in-state address not serviced by
BellSouth or if he disconnected his telephone service after the
date the class was established.
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deducted from the recovery by the class. . . .
The notice to Louisiana class members stated that “the settlement
provides for payment of $1.5M as total compensation for fees, time,
expenses, and work spent by the attorneys who represent the
Settlement Class and Plaintiffs.” For reasons of administrative
ease, the parties arrived at the $1.5 million figure simply by
dividing $6 million equally among the four federal cases.
To be enforceable, the Agreement required the final approval
of each federal court, pursuant to FED. R. CIV. P. 23(e).3 Any
modification to the Agreement, whether by a party or a court, would
render the Agreement void. Filing joint motions in support of the
Agreement and requesting preliminary approval, the parties
presented the Agreement to the respective federal courts. The
district court entered an order of preliminary approval and
scheduled a hearing on the Agreement. At the hearing, the parties
clarified that the Agreement dictated that the court had to rule on
the Agreement as a package and could not separate the benefits to
the class from the attorneys’ fees. While the court expressed its
opinion that the parties reached the Agreement without fraud or
collusion and that the attorneys’ fees did not drive the
settlement, it nonetheless voiced concern about the reasonableness
of the attorneys’ fees, particularly that the $64 million “common
fund” figure was illusory.
Less than one week after the hearing, the district court
3
The Agreement provided that once all four federal courts
entered final orders approving the settlement, the parties would
dismiss the state court actions.
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issued an order in which it expressed continued misgivings about
the attorneys’ fees portion but acknowledged that the Agreement had
to be approved as a whole. The court posed many specific questions
to plaintiffs’ counsel about the time records that they had
submitted to support the approximately 21,000 hours they claimed
for the four-state litigation. Plaintiffs’ counsel responded with
detailed answers to the court’s questions, disclosing that a few of
the entries were erroneous. Remaining unconvinced of the
reasonableness of the attorneys’ fees, the court denied the
parties’ joint motion to approve the Agreement. The court remained
concerned about entries in the submitted time records and again
questioned class counsel’s assertion that a $64 million “common
fund” was available to class members. Although expressing
satisfaction with the agreed benefits to the class, the court
indicated that only the attorneys’ fees award prevented his
approval of the Agreement.
Following further communications between themselves and with
the court, the parties decided to amend the Agreement. The
resulting amendment provided that BellSouth would pay plaintiffs’
counsel a maximum of $6 million as compensation and recited that
the federal courts in Alabama, Mississippi, and Tennessee had
approved a cumulative award of $4.5 million. The amendment vested
the determination of the amount of Louisiana attorneys’ fees with
the Louisiana federal court:
The Parties agree to leave the determination of the
appropriate quantum of compensation to be paid to
Plaintiffs’ Counsel for Louisiana to the federal court in
Louisiana, taking into account such factors as the court
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deems appropriate. In no event shall the total amount of
compensation payable to Plaintiffs’ Counsel be less than
the $4.5 million previously approved by the federal
courts in Alabama, Mississippi and Tennessee and in no
event shall the total amount of compensation paid to
Plaintiffs’ counsel by South Central Bell exceed the
$6,000,000 agreed to by the Parties in the original
Agreement.
In a joint motion requesting approval of the amended settlement
agreement, the parties stated that they would reserve the issue of
attorneys’ fees in the Louisiana litigation for future action by
the district court until after the benefits had been distributed to
the class members in all four states. The parties further stated
that they would provide the court with whatever data it would
require, including data about the actual benefits provided to the
class members.
In January 1996, the court entered a final order approving the
Agreement, as amended, and expressly reserved the determination of
attorneys’ fees, if any, to be paid to plaintiffs’ counsel until
after the parties had provided the court with information
concerning the distribution of benefits. In the last few months of
1996, the parties presented detailed records of the claims
submitted to BellSouth and jointly asked the court to approve an
additional $1.5 million attorneys’ fees payment. Using the
lodestar method, the district court examined the reasonableness of
the requested fee and decided that an award of attorney fees above
the $4.5 million already awarded by the other courts was not
warranted. The court subsequently entered final judgment, and
plaintiffs timely appealed.
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II
At the outset, plaintiffs’ counsel challenges the scope of the
district court’s authority to review attorneys’ fees. The court’s
discretion is limited, plaintiffs’ counsel argues, for two reasons:
the parties agreed to the fee, and the fee was not deducted from a
common fund. Plaintiffs’ counsel maintains that, in these
circumstances, once the court found that the class received a fair
settlement, that the settlement agreement was consummated at arm’s
length, without collusion or fraud, and that the attorneys’ fees
did not drive the settlement, the court had no discretion to assess
the reasonableness of attorneys’ fees.
Counsel’s position underestimates, however, the scope of the
court’s duty under Rule 23 to protect absent class members and to
police class action proceedings. See FED. R. CIV. P. 23(e) (“A
class action shall not be dismissed or compromised without the
approval of the court . . . .”); see also Evans v. Jeff D., 475
U.S. 717, 726, 106 S. Ct. 1531, 1537, 89 L. Ed. 2d 747 (1986)
(“Rule 23(e) wisely requires court approval of the terms of any
settlement of a class action . . . .”). This duty is not limited
to a review of the substantive claims included in the agreement.
Instead, the “duty to investigate the provisions of the suggested
settlement includes the obligation to explore the manner in which
fees of class counsel are to be paid and the dollar amount for such
services.” Foster v. Boise-Cascade, Inc., 420 F. Supp. 674, 680
(S.D. Tex. 1976), aff’d, 577 F.2d 335 (5th Cir. 1978). To fully
discharge its duty to review and approve class action settlement
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agreements, a district court must assess the reasonableness of the
attorneys’ fees. See Piambino v. Bailey, 610 F.2d 1306, 1328 (5th
Cir. 1980). “The purpose of this salutary requirement is to
protect the nonparty members of the class from unjust or unfair
settlements affecting their rights” as well as to minimize
conflicts that “may arise between the attorney and the class,
between the named plaintiffs and the absentees, and between various
subclasses.” Id. at 1327-28. Moreover, the court’s examination of
attorneys’ fees guards against the public perception that attorneys
exploit the class action device to obtain large fees at the expense
of the class. See In re General Motors Corp. Pick-up Truck Fuel
Tank Products Liab. Litig., 55 F.3d 768, 820 (3d Cir. 1995)
[hereinafter In re GM Trucks] (emphasizing that the “court’s
oversight function” serves to detect the “potential public
misunderstandings that they may cultivate in regard to the
interests of class counsel”) (internal quotations and citations
omitted); Foster, 420 F. Supp. at 680 (explaining that the court
has the “obligation in any Rule 23 class action to protect [the
class action device] from misuse” because the “most commonly feared
abuse is the possibility that Rule 23 encourages strike suits
promoted by attorneys who simply are seeking fat fees”) (internal
quotations and citations omitted).
Counsel’s first contention))that the district court’s
responsibility to address attorneys’ fees is circumscribed when the
parties agree to the amount of fees))is, therefore, without merit
in the context of a class action settlement. To the contrary, a
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“district court is not bound by the agreement of the parties as to
the amount of attorneys’ fees.” Piambino, 610 F.2d at 1328; Foster
v. Boise-Cascade, Inc., 577 F.2d 335, 336 (5th Cir. 1978). The
court must scrutinize the agreed-to fees under the standards set
forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.
1974), and not merely “ratify a pre-arranged compact.” Piambino,
610 F.2d at 1328 (holding that by summarily approving attorneys’
fees presented in an unopposed settlement agreement, the district
court “abdicated its responsibility to assess the reasonableness of
the attorneys’ fees proposed under a settlement of a class action,
and its approval of the settlement must be reversed on this ground
alone”).
That the defendant will pay the attorneys’ fees from its own
funds likewise does not limit the court’s obligation to review the
reasonableness of the agreed-to fees. Restricting the court’s
discretion to a perfunctory review in such a circumstance would
disregard the economic reality that a settling defendant is
concerned only with its total liability. See In re GM Trucks, 55
F.3d at 819-20 (requiring “a thorough judicial review of fee
applications . . . in all class action settlements” because “‘a
defendant is interested only in disposing of the total claim
asserted against it’” and “‘the allocation between the class
payment and the attorneys’ fees is of little or no interest to the
defense’”) (quoting Prandini v. National Tea Co., 557 F.2d 1015,
1020 (3d Cir. 1977)). Because the defendant’s adversarial role
with regard to the attorneys’ fees is thus diminished, the court
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must strive to minimize the conflict of interest between the class
and its attorney inherent in such an arrangement. See Foster, 420
F. Supp. at 687-88; see also Weinberger v. Great Northern Nekoosa
Corp., 925 F.2d 518, 524 (1st Cir. 1991) (explaining that when fees
are paid from the defendant’s own funds, a conflict results from
“the danger that the lawyers might urge a class settlement at a low
figure or on a less-than-optimal basis in exchange for red-carpet
treatment on fees”); Court Awarded Attorney Fees, Report of the
Third Circuit Task Force, 108 F.R.D. 237, 266 (1985) (“Even if the
plaintiff's attorney does not consciously or explicitly bargain for
a higher fee at the expense of the beneficiaries, it is very likely
that this situation has indirect or subliminal effects on the
negotiations. And, in any event, there is an appearance of a
conflict of interest.”)
The court’s review of the attorneys’ fees component of a
settlement agreement is thus an essential part of its role as
guardian of the interests of class members. To properly fulfill
its Rule 23(e) duty, the district court must not cursorily approve
the attorney’s fees provision of a class settlement or delegate
that duty to the parties. Even when the district court finds the
settlement agreement to be untainted by collusion, fraud, and other
irregularities, the court must thoroughly review the attorneys’
fees agreed to by the parties in the proposed settlement agreement.
III
A
We review a district court’s award or denial of attorney fees
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for abuse of discretion. See Forbush v. J.C. Penney Co., 98 F.3d
817, 821 (5th Cir. 1996). We review the court’s findings of fact
supporting the award for clear error. See Longden v. Sunderman,
979 F.2d 1095, 1100 (5th Cir. 1992).
Under the lodestar method, which this circuit uses to assess
attorneys’ fees in class action suits, the district court must
first determine the reasonable number of hours expended on
litigation and the reasonable hourly rates for the participating
attorneys. See Forbush, 98 F.3d at 821. The lodestar is computed
by multiplying the number of hours reasonably expended by the
reasonable hourly rate. See id. Upon a review of the twelve
factors set forth in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir. 1974),4 the court may then apply a
multiplier to the lodestar, adjusting the lodestar either upward or
downward. See id. However, “[t]he lodestar may be adjusted
according to a Johnson factor only if that factor is not already
taken into account by the lodestar.” Transamerican Natural Gas
Corp. v. Zapata Partnership, Ltd. (In re Fender), 12 F.3d 480, 487
(5th Cir. 1994).
Pursuant to the amended Agreement, plaintiffs’ counsel sought
4
The twelve Johnson factors are: (1) the time and labor
required, (2) the novelty and difficulty of the issues, (3) the
skill required to perform the legal services properly, (4) the
preclusion of other employment, (5) the customary fee, (6) whether
the fee is fixed or contingent, (7) time limitations imposed by the
client or the circumstances, (8) the amount involved and the
results obtained, (9) the experience, reputation, and ability of
the attorneys, (10) the undesirability of the case, (11) the nature
and length of the professional relationship with the client, and
(12) awards in similar cases. Johnson, 488 F.2d at 717-19.
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a total attorneys’ fee award of $6.0 million, which, taking into
account the $4.5 million that the three other federal courts had
previously awarded, left the court below to decide if an additional
$1.5 million payment was reasonable. First examining the number of
hours and hourly rates, the district court noted that plaintiffs’
counsel claimed to have expended almost 21,000 hours on the four-
state litigation, not including 218 additional hours expended by
local counsel, and charged hourly rates of $175 for partners, $250
for trial counsel, and $135 for associates. The lodestar fee
calculated from these figures amounted to $3,089,127, which,
combined with the $652,547 that counsel claimed in costs, totaled
$3,741,674. Plaintiffs’ counsel requested that the court enhance
this lodestar with a multiplier of less than two to yield a total
award of $6 million.
Although continuing to question the validity of some of the
entries in the supporting fee records, which it had previously
reviewed, the court declined to decide whether the claimed hours
were compensable time. Instead, assuming without deciding that the
records were accurate, the court held that it would award no
additional fees because “plaintiffs’ counsel ha[d] been more than
amply compensated from the funds they have received to date,” the
total of which exceeded the lodestar figure plus costs. Strong v.
BellSouth Telecomms., Inc., 173 F.R.D. 167, 170 (W.D. La. 1997).
In determining that a multiplier was not warranted, the court
considered the factors set forth in Johnson, focusing on the time
and labor involved and the results achieved. The court’s decision
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not to enhance the lodestar was largely based on its examination of
the benefits obtained for the class. The court first considered
the nonmonetary class benefits claimed by plaintiffs’ counsel to
support the enhancement: that the class and public were educated
on the choices available for the IWMS plan, that the price for IWMS
service had remained static since the time the lawsuit was filed,
and that the percentage of BellSouth customers paying for IWMS plan
had dropped significantly since the time the lawsuit was filed.
The court found that while the class had benefitted from the
information about the market for IWMS plans, the additional value
of this benefit, above what was already reflected in the submitted
claims, was insubstantial. In accordance with the parties’ amended
Agreement, the court then reviewed the information submitted by the
parties regarding the actual distribution of class benefits and
found that the value of the credit requests submitted by class
members in all four states totaled $1,718,594, an amount
drastically less than the $64 million that plaintiffs’ counsel
claimed it had obtained for the class. The court concluded not
only that a multiplier was inappropriate, but, “if anything, the
fees should be reduced in light of the insignificant benefit to the
class members.” Strong, 173 F.R.D. at 172.
We are unable to conclude that the district court’s refusal to
award additional fees was an abuse of discretion. The parties
jointly asked the court, pursuant to the amended Agreement, to
award up to $1.5 million additional attorneys’ fees based on actual
claim information. The court below reviewed in detail the class
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benefits of the settlement agreement and acted within its
discretion in concluding that an enhancement of the lodestar was
not warranted. Although the district court did not conduct a
detailed analysis of every Johnson factor, the court used the
Johnson framework in evaluating the requested fee and clearly set
forth its reasons for denying the fee enhancement. See Louisiana
Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995)
(requiring the district court “to provide a concise but clear
explanation of its reasons for the fee award,” but noting that we
inspect the district court’s lodestar analysis only to determine if
the court sufficiently considered the appropriate criteria)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933,
1941, 76 L. Ed. 2d 40 (1983)); Forbush, 98 F.3d at 823 (holding
that we will not reverse a district court that fails to discuss a
Johnson factor “so long as the record clearly indicates that the
district court has utilized the Johnson framework as the basis of
its analysis, has not proceeded in a summary fashion, and has
arrived at an amount that can be said to be just compensation”)
(quoting Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987)). We
therefore hold that the district court did not abuse its discretion
in denying the requested attorneys’ fees.
B
Although they do not contend that the district court
misapplied the Johnson factors in this case, plaintiffs’ counsel
claims that the court erred by comparing the attorneys’ fees to the
actual amounts claimed by the class members rather than the entire
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“common fund.” Accordingly, they argue that Boeing v. Van Gemart,
444 U.S. 472, 100 S. Ct. 745, 62 L. Ed. 2d 676 (1980), mandates
that we reverse the district court for considering the actual
rather than potential awards claimed.
We first question whether Boeing, which used the percentage of
fund method, has any application to a case such as this one, which
uses the lodestar method. Without deciding the implications, if
any, of Boeing on the lodestar method,5 however, we find Boeing
distinguishable on a more significant ground: unlike Boeing, this
case does not involve a traditional common fund.
In Boeing, the district court entered judgment against Boeing
and then ordered Boeing to deposit the amount of the judgment into
escrow at a commercial bank. Boeing, 444 U.S. at 476, 100 S. Ct.
at 748. Because each member of the class had an “undisputed and
mathematically ascertainable claim to part of [the] lump-sum
judgment,” the members could obtain their share of the fund “simply
5
Plaintiffs’ counsel does not attempt to explain how
Boeing would be relevant to a lodestar analysis; they discuss the
case only in the context of the percentage of fund method.
Although we do not purport to resolve this issue, we note that
several courts have advocated the use of the lodestar method in
lieu of the percentage of fund method precisely in the situation
where the value of the settlement is difficult to ascertain,
reasoning that there is a strong presumption that the lodestar is
a reasonable fee. See, e.g., In re GM Trucks, 55 F.3d at 821(“Outside the statutory fee case, the lodestar rationale has appeal
where as here, the nature of the settlement evades the precise
evaluation needed for the percentage of recovery method.”);
Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 526 n.10
(1st Cir. 1991) (“[T]he absence of any true common fund renders the
percentage approach inapposite here.”).
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by proving their individual claims against the judgment fund.”6
Id. at 479, 100 S. Ct. at 749-50. The Court held that an attorney
who recovers a common fund for the benefit of persons other than
himself or his client is entitled to a reasonable attorney's fee
from the fund as a whole, including the unclaimed portion.
In contrast to Boeing, in this settlement no money was paid
into escrow or any other account))in other words, no fund was
established at all in this case.7 In fact, the Agreement neither
established nor even estimated BellSouth’s total liability.8
Instead, the Agreement provided each class member with the option
of either continuing under the plan or canceling the plan and
obtaining a credit. Thus, class members who wanted the service
would not receive a credit under the Agreement. In addition, class
members who did not meet the eligibility requirements also would
not receive credits. For these reasons, the district court
considered the $64 million “common fund” figure assigned by
6
The class alleged that Boeing had violated federal and
state laws by failing to give reasonably adequate notice of the
redemption of certain convertible debentures. The court fixed the
amount that each class member could recover on a principal amount
of $100 in debentures. Boeing, 444 U.S. at 476, 100 S. Ct. at 748.
7
This settlement also differed from the Boeing settlement
with regard to the source of the payment. Unlike in Boeing, where
the attorneys’ fees were deducted from the payments to the class,
BellSouth agreed to pay the fees separately from any payment made
to class members.
8
This characteristic of the Boeing settlement did not
escape the Boeing Court, which expressly observed that “we need not
decide whether a class-action judgment that simply requires the
defendant to give security against all potential claims would
support recovery of attorney’s fees under the common-fund
doctrine.” Boeing, 444 U.S. at 481 n.5, 100 S. Ct. at 750 n.5.
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plaintiffs’ counsel to be a “phantom,” likening this aspect of the
settlement to settlements providing class members with coupons or
certificates, where the true value of the award was less than its
face value. See Strong, 173 F.R.D. at 172. Even BellSouth, which
filed a motion in support of the court’s approval of the Agreement,
pointed out that the Agreement varied from a traditional common
fund in this important respect. Because of the absence of any fund
and because the value of the settlement was contingent on class
members’ desire to continue the plan as well as their eligibility
for the credit, we reject the contention of plaintiffs’ counsel
that the district court abused its discretion by not basing the
attorneys’ fee award on the $64 million “common fund” value.
We further conclude that the district court acted within its
discretion in considering the actual claims awarded. When the
court rejected the unamended Agreement, it expressed its concern
that the attorneys’ fees portion of settlement was unreasonable,
particularly because it found counsel’s $64 million value of the
settlement to be illusory. When the parties amended the Agreement,
they agreed to provide the court with information on the actual
claims, and the court proceeded on that basis. Although we
recognize that this course of action is not the usual one, we note
that other courts have crafted similar arrangements to address fee
requests like this one that are based on settlements of conditional
value. See, e.g., In re Domestic Air Transp. Antitrust Litig., 148
F.R.D. 297, 348-52 (N.D. Ga. 1993) (adjusting value of settlement
for the likelihood that travel certificates would be used by class
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members in determining attorneys’ fees and considering the adjusted
value when reviewing the “results obtained” Johnson factor);
Duhaime v. John Hancock Mut. Life Ins. Co., No. CIV.A. 96-10706-
GAO, 1997 WL 809597, at *4 (D. Mass. Dec. 31, 1997) (approving the
fee request provisionally and permitting immediate partial payment,
but reserving the balance for payment either in full or after
appropriate adjustment in light of actual experience under the
settlement, where settlement value was unknown because class
members could opt to receive either relief against their insurance
policy or an award through an ADR process). Moreover, as we
concluded earlier, the district court conducted a proper analysis
under the lodestar method, which produces a presumptively
reasonable fee award. We therefore find that under the atypical
circumstances of this case, the district court did not abuse its
discretion in considering the actual results of the settlement.9
III
For the foregoing reasons, we find that the district court did
not abuse its discretion in denying the additional $1.5 million
attorneys’ fees requested by plaintiffs’ counsel. We accordingly
AFFIRM the decision of the district court.
9
At oral argument, plaintiffs’ counsel vaguely argued that
because the district court was presented only with the settlement
for Louisiana, it abused its discretion in awarding zero attorneys’
fees for the Louisiana litigation. Plaintiffs’ counsel failed,
however, to present this argument in their brief to this court; in
fact, they referred several times to the global settlement and the
Louisiana portion as alternative bases for approving the fee.
Plaintiffs’ counsel therefore waived this issue. See Webb v.
Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996) (holding
that a party who fails to raise an issue in its brief waives the
right to review of that issue).
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