276 F.3d 1008 (8th Cir. 2002)

IN RE: US BANCORP LITIGATION, ALSO KNOWN AS U.S. BANK NATIONAL ASSOCIATION LITIGATION
JAMES D. KOENIG, ON BEHALF OF HIMSELF, AND THE CLASS OF SIMILARLY SITUATED CONSUMERS; PHILLIPPA SAUNDERS, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED; BARBARA A. MANS; MICHAEL J. MANS, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED; CHRIS SOMERS, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED; ANNE BERGMAN; KATHRYN ROSEBEAR, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; JANE KORN; ROBERT MADOFF, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; BRENT JOHNSON; BILL ROONEY, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED; DANIEL P. MALLOVE; TIMOTHY GAILLARD; CYNTHIA GAILLARD; MARY SCALISE, PLAINTIFFS - APPELLEES,
N. PETER KNOLL, INTERVENOR PLAINTIFF-APPELLANT,
ANNE KNOLL, INTERVENOR PLAINTIFF,
WILLIAM J. LORENCE, INTERVENOR PLAINTIFF - APPELLANT,
v.
U.S. BANK NATIONAL ASSOCIATION, ND, FORMERLY KNOWN AS FIRST BANK OF SOUTH DAKOTA, N.A.; US BANCORP INSURANCE SERVICES, INC.; US BANCORP, FORMERLY KNOWN AS FIRST BANK SYSTEMS, DEFENDANTS - APPELLEES.
IN RE: US BANCORP LITIGATION, ALSO KNOWN AS U.S. BANK NATIONAL ASSOCIATION LITIGATION
JAMES D. KOENIG, ON BEHALF OF HIMSELF, AND THE CLASS OF SIMILARLY SITUATED CONSUMERS; PHILLIPPA SAUNDERS, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED; BARBARA A. MANS; MICHAEL J. MANS, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED; CHRIS SOMERS, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED; ANNE BERGMAN; KATHRYN ROSEBEAR, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; JANE KORN; ROBERT MADOFF, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; BRENT JOHNSON; BILL ROONEY, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED; DANIEL P. MALLOVE; TIMOTHY GAILLARD; CYNTHIA GAILLARD; MARY SCALISE, PLAINTIFFS - APPELLEES,
N. PETER KNOLL, INTERVENOR PLAINTIFF-APPELLANT,
ANNE KNOLL, INTERVENOR PLAINTIFF,
WILLIAM J. LORENCE; David R. Jansen, INTERVENOR PLAINTIFF - APPELLANT,
v.
U.S. BANK NATIONAL ASSOCIATION, ND, FORMERLY KNOWN AS FIRST BANK OF SOUTH DAKOTA, N.A.; US BANCORP INSURANCE SERVICES, INC.; US BANCORP, FORMERLY KNOWN AS FIRST BANK SYSTEMS, DEFENDANTS - APPELLEES.

No. 01-1217

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 7, 2001
January 15, 2002

Appeals from the United States District Court for the No. 01-1242 District of Minnesota

N. Peter Knoll, Longmont, CO, David R. Jansen, Minneapolis, MN, William J. Lorence, Maple Grove, MN, for appellant.

Kay Nord Hunt, Phillip A. Cole, Karl L Cambronne, Minneapolis, MN, Mark Reinhardt, Hary H. Eckart, Gar5rett D. Balanchfield, St. Paul, MN, Seymour J. Mansfield, Richard J. Fuller, V. John Ella, Minneapolis, MN, William Kvas, Minneapolis, MN, Joseph Arshawsky, Albuquerque, NM, Peter Safirstein, New York City, Charles S. Zimmerman, Keelyn M. Friesen, Jennifer K. Sustacek, Minneapolis, MN, and Charles J. Johnson, New Brightton, MN, for appellees.

Before McMILLIAN, Morris Sheppard Arnold, and Bye, Circuit Judges.

McMILLIAN, Circuit Judge

1

In these consolidated appeals, Peter Knoll, David Jansen, and William Lorence appeal from the final judgment entered in the District Court1 for the District of Minnesota, approving a stipulated settlement agreement in a class action suit over their objections. Knoll, Jansen, and Lorence were unnamed class members who intervened after the settlement agreement had been approved. For reversal, they argue the district court judge should have disqualified himself because he had a financial interest in the litigation, the district court violated due process by giving class members only nine days to review attorneys' fee applications, and the district court erred in approving the settlement agreement and the fee award without stating its reasons on the record, and in determining the amount of the fee award. They also object to the costs award for class counsel and the incentive award for the representative plaintiffs. For the reasons discussed below, we affirm the judgment of the district court.

2

Initially, we find that the intervenors have standing to challenge the settlement award. See Croyden Assocs. v. Alleco, Inc., 969 F.2d 675, 680 (8th Cir. 1992) (unnamed class members must intervene to challenge adequacy of settlement on appeal), cert. denied, 507 U.S. 908 (1993). We reject their arguments as meritless, however. The intervenors concede that they failed to raise the disqualification argument in the district court. See Alexander v. Pathfinder, Inc., 189 F.3d 735, 742 (8th Cir. 1999) (this court does not consider new arguments on appeal). We find due process was satisfied because the intervenors were able to raise their objections to the fee amount at the hearing and in writing. See DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1176 (8th Cir. 1995) (due process satisfied where class members received notice of settlement proposal and were able to argue their objections to district court), cert. denied, 517 U.S. 1156 (1996). We also find the district court adequately stated its reasons for approval on the record by stating that the settlement agreement was fair and reasonable and by rejecting the objectors' arguments. See id. at 1177 (in absence of specific findings regarding fairness of settlement, this court assumes district court did not abuse its discretion unless record establishes to contrary).

3

As to the fee award, class counsel explained that the requested fee would be 25% of the total settlement value if an additional $2 million pourover amount was paid into the fund, or 36% of the guaranteed $3.5 million fund amount. Because the pourover amount was not paid into the fund, the $1.25 million fee award represents approximately 36% of the settlement fund. We have approved the percentage-of- recovery methodology to evaluate attorneys' fees in a common-fund settlement such as this, see Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1157 (8th Cir. 1999), and we find no abuse of discretion in the district court's awarding 36% to class counsel who obtained significant monetary relief on behalf of the class, see id. at 1156 (district court's decisions regarding attorneys' fees in class action settlement will generally be set aside only upon showing of abuse of discretion; to recover fees from common fund, attorneys must demonstrate that their services were of some benefit to fund or enhanced adversarial process). We also find the $40,000 costs and $10,000 incentive awards were appropriate. See Keslar v. Bartu, 201 F.3d 1016, 1017 (8th Cir. 2000) (per curiam); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998).

4

Accordingly, we affirm.

Notes:

1

The Honorable Jonathan G. Lebedoff, United States Magistrate Judge for the District of Minnesota, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).