In re: Syngenta AG MIR162

Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 28, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Toups/Coffman Plaintiffs’ Nos. 19-3008, 19-3022, 19-3079, 19-3176,
Counsel) 19-3280
–––––––––––––––––––––––––––––––––––
In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Kansas Common Benefit Nos. 19-3032, 20-3002
Firms)*
–––––––––––––––––––––––––––––––––––
In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Byrd/Shields Group)* No. 19-3174
–––––––––––––––––––––––––––––––––––
In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Johnson Becker, PLLC) No. 19-3175
–––––––––––––––––––––––––––––––––––
In re: Syngenta AG MIR162 (Hossley-
Embry Group) No. 19-3178
–––––––––––––––––––––––––––––––––––
In re: SYNGENTA AG MIR 162 CORN

The parties to the appeals filed by Toups/Coffman Plaintiffs’ Counsel and
the Kansas Common Benefits Firms can be found in the Joint Response on Parties to
these Appeals filed on March 15, 2019.
**
The parties to the appeals filed by the Byrd/Shields Group can be found in
the Response on Parties to Appeal No. 19-3174 filed on September 18, 2019, the
Supplemental Response on Parties to Appeal No. 19-3174 filed on October 9, 2019, and
the court’s order of November 25, 2019.
Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2
LITIGATION (Law Office of Craig No. 19-3279
Eiland, P.C.)
–––––––––––––––––––––––––––––––––––
In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Demerath Group) No. 19-3284
_________________________________
Appeals from the United States District Court
for the District of Kansas
(D.C. No. 2:14-MD-02591-JWL-JPO)
_________________________________
Eric Alan Isaacson, Law Office of Eric Alan Isaacson, La Jolla, California (Mitchell A.
Toups, Weller, Green Toups & Terrell, LLP, Beaumont, Texas; Richard L. Coffman, The
Coffman Law Firm, Beaumont, Texas; D. Allen Hossley, Hossley-Embry, LLP, Dallas,
Texas, with him on the briefs), the Toups/Coffman Plaintiffs’ Counsel & Hossley-Embry
for the Kansas Pool Appellants.
Christina J. Nielsen, Nielsen Law Firm, Woodbridge, Virginia, Jeffrey A. Lamken, Eric
R. Nitz, and Caleb Hayes-Deats, MoloLamken LLP, Washington, D.C., William P.
Ferranti, The Ferranti Firm LLC, Portland, Oregon, and Thomas J. Wiegand and
Matthew J. Fisher, MoloLamken, Chicago, Illinois, for the Minnesota Appellants Watts
Guerra, LLP, Paul Byrd Law Firm, PLLC, and Shields Law Group, LLC.
David Campbell, O’Hanlon, Demerath & Castillo, PC, Austin, Texas (Justin B.
Demerath, O’Hanlon, Demerath & Castillo, PC, Austin, Texas; A. Craig Eiland, The Law
Offices of A. Craig Eiland, PC, Austin, Texas, with him on the briefs), for the Illinois
Appellants, and Clayton A. Clark and Scott A. Love, Clark Love Hutson, Houson, Texas,
and Martin J. Phipps, Phipps Anderson Deacon LLP, San Antonio, Texas, and Peter J.
Flowers, Meyers & Flowers, LLC, St. Charles, Illinois, joined in the supplemental brief
for The Clark/Phipps Group.
Timothy J. Becker (Michael K. Johnson with him on the briefs) Johnson Becker, PLLC,
Saint Paul, Minnesota, for Appellants.
Bradley T. Wilders, Stueve Siegel Hanson LLP, Kansas City, Missouri, and William
Lewis Garrison, Jr., Heninger Garrison Davis, LLC, Birmingham, Alabama (Patrick J.
Stueve and Rachel Schwartz, Stueve Siegel Hanson LLP, Kansas City, Missouri; Don M.
Downing and Gretchen Garrison, Gray, Ritter & Graham, P.C., St. Louis, Missouri;
William B. Chaney and Drew York, Gray Reed & McCraw, LLP, Dallas, Texas; Scott
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Powell, Bruce McKee and Tempe Smith, Hare Wynn Newell & Newton, Birmingham,
Alabama; the MDL Co-Lead Plaintiffs’ Counsel on behalf of Kansas Common Benefit;
and Daniel E. Gustafson, Gustafson Gluek PLLC, Minneapolis, Minnesota; Lewis A.
Remele, Jr., Bassford Remele, A Professional Association, Minneapolis, Minnesota and
William R. Sieben, Schwebel Goetz & Sieben PA, Minneapolis, Minnesota the
Minnesota Co-Lead Counsel; and Christopher A. Seeger, Stephen A. Weiss, Diogenes P.
Kekatos, Seeger Weiss LLP, Ridgefield Park, New Jersey, the Settlement Class Counsel;
Christopher B. Hood, Heninger Garrison Davis, LLC, Birmingham, Alabama, the Illinois
Mass Action Lead Counsel, with them on the briefs) for the Joint Appellees.
_________________________________
Before HOLMES, Chief Judge, and BACHARACH and McHUGH, Circuit Judges.
_________________________________
HOLMES, Chief Judge.
These appeals concern attorneys’ fees awarded following a historic class action
settlement. Numerous plaintiffs from multiple different states—but, mainly, Kansas,
Minnesota, and Illinois—sued Syngenta AG (“Syngenta”), an agricultural company. The
suits against Syngenta were organized into complex, federal multi-district litigation
(“MDL”) based in a court in the United States District Court for the District of Kansas
(“Kansas district court”). Syngenta ultimately settled with the class action plaintiffs. The
Kansas district court allocated approximately $503 million in attorneys’ fees and expense
awards stemming from the settlement to the myriad firms participating in the class action.
Appellants in this case—the various plaintiffs’ lawyers and law firms that took
part in the MDL against Syngenta—challenge numerous orders published by the Kansas
district court concerning the apportionment and allocation of that $503 million fee pie.
Having concluded it possessed significant authority to craft the allocation of attorneys’
fees in the most reasonable manner, the Kansas district court had adopted a two-stage,
“general approach” of an appointed special master to the allocation of the attorneys’ fee
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award—“by which the award is first allocated among the three common benefit pools
[i.e., for Kansas, Minnesota, and Illinois] and the IRPA pool [i.e., the pool for
individually retained private attorneys],” Joint App., Vol. 23, at 5357 (Kan. D. Ct. Mem.
and Order, filed Dec. 31, 2018) (“December 31, 2018, Fee Allocation Order”), and then,
second, disbursed to individual firms. Appellees—also lawyers and law firms from
Kansas, Minnesota, and Illinois, that acted as co-lead counsel (“CLCs” or “Leadership”)
and by-and-large, spearheaded the litigation against Syngenta in the three main fora—
oppose Appellants’ arguments, and they ask us to affirm the Kansas district court’s fee-
allocation orders.1
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we fully affirm the Kansas
district court’s post-judgment attorneys’ fees orders challenged in these appeals.
1
The three relevant groups of appellees in this action are the following: (a)
the Kansas CLC, comprised of lawyers from Stueve Siegel Hanson LLP, Gray, Ritter, &
Graham, P.C., Hare Wynn Newell & Newton, Gray Reed & McGraw, LLP, and all other
firms and lawyers working at their direction; (b) the Minnesota CLC, comprised of
lawyers from Gustafson Gluek, PLLC, Bassford Remele, A Professional Association,
Schewebel Goetz & Sieben PA, and all other firms and lawyers working at their
direction; and (c) Heninger Garrison Davis, LLC, the law firm appointed as lead counsel
in the relevant action in the U.S. District Court for the Southern District of Illinois which
was also appointed Coordinated Action Plaintiffs’ Liaison Counsel in that district.
Seeger Weiss LLP, which was the Settlement Class Counsel in this action, is also a party
to the appeal as an appellee. These law firms and attorneys name themselves as the Joint
Appellees in this action.
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I. Background
A. Summary of the Litigation
The appeals at issue here stem from various lawsuits filed against Syngenta.
Syngenta commercialized and released two genetically modified (“GMO”) corn seeds
under the brand names Agrisure Viptera and Agrisure Duracade before obtaining China’s
regulatory approval to import such genetically modified seeds. After discovering the
Syngenta GMO corn seeds in its American imports, China closed its markets to American
corn, depressing corn prices and thereby injuring producers. Beginning in 2014, corn
farmers and others in the corn industry filed thousands of lawsuits against Syngenta in
several federal and state jurisdictions; these suits took various forms, including class
actions, mass tort actions, and individual actions.2
In December 2014, the Judicial Panel on Multidistrict Litigation consolidated
hundreds of these suits into an MDL centered in the Kansas district court. A similar
process occurred in Minnesota, where thousands of suits were consolidated in a state
court (“Minnesota state court”). And finally, similar suits were litigated in a court in the
United States District Court for the Southern District of Illinois (“Illinois district court”).
2
Some corn producers who initially opted to file individual actions against
Syngenta, as opposed to joining a class action lawsuit, had a change of heart and
regretted their choice of pursuing individual claims. They separately sued the attorneys
who allegedly inflated their legal fees by touting the benefits to them of pursuing
individual lawsuits, while concealing the benefits of class litigation. That lawsuit was
ultimately dismissed by the Kansas district court as part of the MDL at issue here, a
dismissal that we affirmed in Kellogg v. Watts Guerra LLP, 41 F.4th 1246 (10th Cir.
2022).
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In an order entered on January 22, 2015, the Kansas district court appointed
several attorneys as “co-lead counsel” for the Kansas MDL. Joint App., Vol. 21, at 4749
(Kan. Special Master’s R&R, filed Nov. 21, 2018) (“November 2018 Fee Allocation
R&R”) (quoting Joint App., Vol. 2, at 482 (Kan. D. Ct. Order Concerning Appointment
of Counsel, filed Jan. 22, 2015)). “The order authorized Kansas MDL Leadership, in
their role as co-lead counsel, to ‘organize and supervise the efforts of plaintiffs’ counsel
in a manner to ensure that the pretrial and trial preparation for the plaintiffs is conducted
effectively, efficiently, expeditiously, and economically’ and ‘to encourage full
cooperation and efficiency among all plaintiffs’ counsel.’” Id. (quoting Joint App., Vol.
2, at 482–83).
On the Minnesota front, firms like Watts Guerra LLP (“Watts Guerra”), along
with several others, brought thousands of individual and class action lawsuits in
Minnesota state court against Syngenta. The Minnesota state court also appointed certain
counsel to a Minnesota Plaintiffs’ Executive Committee to ensure “the efficient,
coordinated litigation of the Minnesota cases.” Id., Vol. 21, at 4752. Attorneys from
Watts Guerra and the Paul Byrd Law Firm, PLLC (“Byrd”) were among the several
appointees. Meanwhile, in Illinois, multiple suits percolated through state and federal
court.
Substantive discovery occurred across the primary litigation sites (i.e., Kansas
district court, Minnesota state court, and Illinois district court). In September 2016, after
an evidentiary hearing, the Kansas district court certified eight state-wide classes to
pursue state-law tort and statutory claims. Following a three-week jury trial of these
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state-law claims in June 2017, one of the Kansas classes obtained a $217,700,000 verdict
against Syngenta. This was the only completed class trial across the three jurisdictions,
although one class trial was started, but not completed, in Minnesota.
Following the Kansas jury verdict, Syngenta expressed renewed interest in
pursuing a global settlement of all claims. Settlement negotiations initially began in
March 2016—before the state-wide class certifications—and the Kansas district court,
along with its Minnesota and Illinois counterparts, appointed Ellen Reisman as the
Special Master for Settlement in the Syngenta litigation (“the Kansas Special Master”).
Two months after the June 2017 class action trial, the Kansas district court appointed a
Plaintiffs’ Settlement Negotiating Committee (“PNC”) to work toward a settlement with
Syngenta. The PNC included representatives of all the major plaintiffs’ constituencies.
Facing the risk of similar losses in Minnesota and other venues that could collectively
total billions of dollars, Syngenta committed to settlement by late 2017.
On February 23, 2018, a class of farmers, certain grain handling facilities and
ethanol production facilities, and various Syngenta entities reached a nationwide class
action settlement (“the Settlement”) that resolved the claims. Syngenta agreed to pay a
total of $1.51 billion in exchange for the release of all claims relating to the sale and
marketing of its GMO corn products. As well, the agreement was contingent on
certification of a nationwide settlement class for claims arising under the Lanham Act.
The Settlement provided that an award of attorneys’ fees and expenses would be
“separate from [the Kansas district court’s] determination of whether to approve the
[s]ettlement,” which would nevertheless bind the parties even if the Kansas district court
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“denie[d], in whole or in part,” the attorneys’ fees applications. Id. at 4744 (quoting Joint
App., Vol. 5, at 1089–90 (Agrisure Viptera/Duracade Class Settlement Agreement, dated
Feb. 23, 2018)). The Settlement contemplated the involvement of the judges of the
Kansas district court, the Illinois district court, and the Minnesota state court in the
allocation of the total attorneys’ fees and expenses. Those judges, initially, were Judge
John W. Lungstrum, Judge David R. Herndon, and Judge Laurie J. Miller, respectively.
Judge Herndon of the Illinois district court retired in January 2019, and Judge Nancy J.
Rosenstengel replaced him and presided over the proceedings.
On April 10, 2018, the Kansas district court granted preliminary approval of the
Settlement. After a settlement hearing on November 15, 2018, the court further found the
Settlement to be fair, reasonable, and adequate under the factors identified in Tennille v.
Western Union Co., 785 F.3d 422, 434 (10th Cir. 2015). The court then tasked the
Kansas Special Master with issuing a report and recommendation (R&R) on allocation of
the aggregate attorneys’ fee award, which she issued on November 21, 2018.
On December 7, 2018, the Kansas district court entered its Aggregate Fee Order
and Final Order and Judgment (“the Judgment”) pursuant to Rule 58 of the Federal Rules
of Civil Procedure. The Judgment memorialized the court’s approval of the Settlement,
including certification of a global settlement class. The Aggregate Fee Order awarded
one-third of the gross settlement amount—i.e., $503,333,333.33 out of the $1.51 billion
settlement fund—as attorneys’ fees. The Aggregate Fee Order made clear that the
allocation of this aggregate attorneys’ fee award remained pending and incomplete.
Then, in a Fee Allocation Order entered on December 31, 2018, following an objection
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period and a hearing, the Kansas district court largely adopted the November 21, 2018,
R&R on attorneys’ fee award allocation issued by the Kansas Special Master.
B. Aggregation and Allocation of the Attorneys’ Fee Award
Below we summarize the filings relevant to the Kansas district court’s fee
allocation process and, therefore, relevant to the instant appeals.
To give a big picture account of what happened: The allocation process
implemented by the court turned on a four-pool fee allocation scheme, featuring three
“common benefit pools” corresponding with the Kansas, Minnesota, and Illinois
litigations and an “IRPA pool” for the work of individually retained private attorneys
(“IRPAs”). Attorneys were assigned to one of the three common benefit pools based on
where they performed the bulk of their work. They could then petition for an attorneys’
fee award from their designated pool for any common benefit work—i.e., work that
benefitted the settlement class or the overall settlement negotiation process—irrespective
of where that work was performed.
To the Kansas common benefit pool, the court allocated slightly under half of the
aggregate attorneys’ fee award; to the Minnesota pool, slightly less than a quarter; to the
Illinois pool, just over 15%; and to the IRPA pool, 12%. The IRPA pool was intended to
compensate attorneys for non-common benefit work they performed on behalf of
individual clients, and attorneys’ recoveries would be dictated by their clients’ claim
recoveries from the Settlement.
1. The Kansas District Court’s Aggregate Fee Order & Final Order and
Judgment
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On December 7, 2018, the Kansas district court approved the class settlement
agreement. As stated, the court awarded one-third of the gross settlement amount—i.e.,
$503,333,333.33 out of the $1.51 billion settlement fund—as attorneys’ fees. To start,
the court concluded it “ha[d] authority to award attorney fees and expenses from the
settlement fund” pursuant to Rule 23(h) of the Federal Rules of Civil Procedure, which
“provides that ‘[i]n a certified class action, the court may award reasonable attorney’s
fees and nontaxable costs that are authorized by law.’” 3 Joint App., Vol. 22, at 5111
(Kan. D. Ct. Mem. and Order, filed Dec. 7, 2018) (second alteration in original) (quoting
FED. R. CIV. P. 23(h)). Furthermore, the settlement agreement “expressly contemplate[d]
3
In full, Rule 23(h) provides:
In a certified class action, the court may award reasonable attorney’s fees
and nontaxable costs that are authorized by law or by the parties’
agreement. The following procedures apply:
(1) A claim for an award must be made by motion under Rule
54(d)(2), subject to the provisions of this subdivision (h), at a time
the court sets. Notice of the motion must be served on all parties
and, for motions by class counsel, directed to class members in a
reasonable manner.
(2) A class member, or a party from whom payment is sought, may
object to the motion.
(3) The court may hold a hearing and must find the facts and state its
legal conclusions under Rule 52(a).
(4) The court may refer issues related to the amount of the award to
a special master or a magistrate judge, as provided in Rule
54(d)(2)(D).
FED. R. CIV. P. 23(h)(1)–(4).
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an award of attorney fees and expenses to counsel who performed work for the benefit of
the settlement class members.” Id. Attorneys’ fees were “also authorized under the
common fund doctrine.” Id. “[P]ursuant to Rule 23(h) and the common-fund doctrine,”
then, the district court “award[ed] a percentage of the fund”—here, 33.33%—“sufficient
to permit reasonable attorney fees for all work that contributed to the class settlement.”
Id. at 5112.
Next, the court set about justifying its percentage fee award. Guiding this analysis
were the “so-called Johnson factors.” Id. at 5112–13; see Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87 (1989).4 Additionally, “[i]n percentage-of-the-fund cases, courts
often engage in a ‘cross-check’ of the fee award against the lodestar figure accounting for
counsel’s hours and hourly rates.” Joint App., Vol. 22, at 5113 (alteration in original)
4
As we have had occasion to recite them, these factors—by which a court
assesses the reasonableness and propriety of an attorneys’ fees award—are
(1) the time and labor involved; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly; (4) the
preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) any prearranged fee—this is helpful but not
determinative; (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.
Brown v. Phillips Petroleum Co., 838 F.2d 451, 454–55 (10th Cir. 1988).
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(quoting In re: Urethane Antitrust Litig., No. 04-1616-JWL, 2016 WL 4060156, at *7 (D.
Kan. July 29, 2016)).5
As to the Johnson factors, the court found that all but the eleventh factor
“overwhelmingly support[ed]” a “substantial [fee] award.” Id. Summarizing, the court
found that the one-third fee was reasonable because: (1) “th[e] litigation required very
extensive time and labor by plaintiffs’ attorneys (Johnson factor 1)”; (2) the “good pace”
of the litigation “required counsel to perform their work subject to significant time
limitations (factor 7)”; (3) the litigation “involved very novel and difficult questions of
law and fact (factor 2)”; (4) “[t]he complex and difficult nature of the litigation, which
spanned across multiple jurisdictions and which involved multiple types of plaintiffs and
claims, required a great deal of skill from plaintiffs’ counsel (factor 3)”; (5) “the most
prominent and productive plaintiffs’ counsel in th[e] litigation were very experienced,
had very good reputations, were excellent attorneys, and performed excellent work
5
The well-established lodestar method may be briefly described in the
following manner:
Under this [lodestar] approach, in determining a reasonable fee award, a
court must first multiply the hours reasonably spent by a normal hourly rate
for noncontingent work to arrive at a lodestar figure. This lodestar should
then be further considered for adjustments, known as ‘multiples,’ for
contingency and quality factors, when appropriate, in arriving at a reasonable
fee.
1 Alba Conte, ATTORNEY FEE AWARDS § 2:3 (3d ed.), Westlaw (database updated June
2022).
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(factor 9)”; (6) “the demands of th[e] litigation, especially for lead counsel in the various
courts, precluded other employment . . . (factor 4)”; (7) “a one-third fee is customary in
contingent-fee cases (factor 5)”; and “many plaintiffs in th[e] case agreed to contingent-
fee arrangements that allowed for fees of at least 40 percent of any recovery (factor 6)”;
and (8) “the amount at stake,” “the excellent results obtained for plaintiffs,” the
“difficulties faced by plaintiffs in succeeding on the[ir] claims,” and “a consideration of
awards in similar cases” (factors 8, 10, and 12) all justified a substantial aggregate fee
award. Id. at 5114–18. The court also noted that, “unlike some other class actions, this
case did not involve a government investigation or prosecution of the defendant, and thus
plaintiffs’ counsel were forced to undertake all of the necessary investigation and
discovery”—which further supported a substantial fee award. Id. at 5115.
As well, the court reasoned that “a cross-check of the relevant lodestar amount”
confirmed “the reasonableness of a one-third award.” Id. at 5120. The court
“consider[ed] all fee applications submitted by plaintiffs’ attorneys” in constructing the
applicable lodestar, “[b]ecause th[e] award [was] intended to account for all contingent
fee recoveries from payments to class members from the settlement fund.” Id. Further,
the court found reasonable the counsels’ average hourly rate, which was under $500, and
“the number of hours expended,” “considering the scope and complexity of th[e]
litigation.” Id. This information yielded a “total lodestar amount [of] approximately
$357 million”; application of a 1.4 multiplier to the lodestar, then, generated the
aggregate fee award of roughly $503 million. Id. “That multiplier,” noted the court,
“[was] extremely modest in light of the great risk undertaken in pursuing the[] claims on
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a contingent-fee basis.” Id. Thus, based on the Johnson factors and the lodestar cross-
check, the court found a total fee award in the amount of one-third of the gross settlement
fund to be justified in this case.
In the Judgment issued that same day, the court noted that it “retain[ed] . . .
continuing and exclusive jurisdiction to interpret, implement, administer, and enforce the
Settlement Agreement, to distribute, allocate, and decide any disputes among counsel
related to attorneys’ fees, costs and expenses, and to implement and complete the claims
administration and distribution process.” Id. at 5133 (Kan. D. Ct. Final Order and
Judgment, filed Dec. 7, 2018).
2. The Kansas Special Master’s November 2018 Fee Allocation R&R
On November 21, 2018, the Kansas Special Master filed her R&R on allocation of
the aggregate attorneys’ fee award. After briefly covering the ground the Kansas Special
Master traversed in her R&R, we outline—in some detail—her discussions surrounding
the Kansas district court’s authority to implement a hybrid allocation scheme and modify
(or abrogate) private agreements involving the attorneys. We also review her proposed
allocations.
a. General Overview
To frame the issues for the Kansas district court, the Kansas Special Master noted
she needed to address the following “key issues” before proposing an allocation of the
aggregate attorneys’ fee award:
1. In this “hybrid” class action settlement context, what attorney time
can fairly be considered work for the “common benefit”;
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2. The enforceability of private contingent fee agreements entered into
by certain Class Members prior to settlement, and the extent to which
[the district court] . . . can invalidate or modify those agreements;
3. What weight should be given to the Fee-Sharing Agreement . . .
entered into by certain counsel immediately after execution of the
Settlement Agreement on February 23, 2018;6
4. The applicability of the Joint Prosecution Agreements (the “JPAs”)
entered into by certain counsel in 2015; and
5. Application of allocation principles to the various fee applications and
data submitted.
Id., Vol. 21, at 4745–46 (footnote added).
Before explaining her answers to these issues in-depth, the Kansas Special Master
summarized her findings and recommended, among other things, the following:
1. The Courts should allocate the Attorneys’ Fee Award so as to provide
compensation both to those lawyers whose efforts produced common
benefits to the entire Class and to [IRPAs] representing individual
Class Members pursuant to contingent fee agreements. The
Attorneys’ Fee Award, plus expenses as approved by the Courts,
should be the entire amount paid to any lawyers in connection with
this litigation and settlement, notwithstanding any agreements (e.g.,
JPAs or contingent fee agreements) to the contrary.
A. Specified percentages of the Attorneys’ Fee Award . . . should
be allocated to each of the three jurisdictions to which certain
groups of counsel have been assigned. These amounts should
be allocated . . . among those counsel for efforts that produced
common benefits to the Class.
B. A set percentage of the Attorneys’ Fee Award should be placed
into a pool for allocation among IRPAs based on their clients’
proportionate share of settlement payments, as finally
determined by the Settlement Process. . . .
6
On February 23, 2018, “representatives of three different plaintiffs’ groups”
signed a Fee-Sharing Agreement proposing a division of the court-awarded attorneys’
fees. Joint App., Vol. 21, 4798–99.
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C. IRPA compensation in respect of individual clients should be
limited to a share of the IRPA pool. The IRPA pool will be
allocated among IRPAs based upon their clients’ proportionate
share of settlement awards to Class Members represented by
IRPAs. Contingent fee agreements providing for higher
percentages should not be enforceable beyond the amount of
the IRPA pool share. . . .
D. Some law firms will be entitled to both common benefit fees
and IRPA compensation.
2. . . . . The Special Master recommends that the Court set aside the
entire . . . $48,842,866.12 requested for reimbursement of expenses,
with final determinations and allocations to be made after the Special
Master has reviewed supporting materials and made more specific
recommendations.
Id. at 4746–47.
The Kansas Special Master also recommended that $2,782,500 in service awards
be granted to firms that requested them.
b. Authority to Award Fees and Modify Prior Agreements
In explaining these conclusions in greater detail, the Kansas Special Master
addressed the district court’s authority to (1) bifurcate the aggregate attorneys’ fee award
into common benefit pools and an IRPA fund and (2) modify, abrogate, or disregard
private agreements, be they contingent-fee contracts between attorneys and their clients
or agreements between attorneys.
i. The Authority to Devise a Four-Pool, Hybrid Allocation Scheme
The Kansas Special Master reasoned that bifurcating the aggregate fee award
along IRPA and common benefit lines was necessary “because the claims resolved under
[the nationwide class action settlement] include both class actions and individual actions
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filed in multiple federal and state courts by individual plaintiffs who retained their own
counsel.” Id. at 4780.
Given this “hybrid character,” the Kansas Special Master explained that the
Kansas district court’s “authority to award fees and expenses derives from several
sources.” Id. For starters, the court could award attorneys’ fees pursuant to Rule 23(h) of
the Federal Rules of Civil Procedure, which provides that, “[i]n a certified class action,
the court may award reasonable attorney’s fees and nontaxable costs that are authorized
by law or by the parties’ agreement.” Id. at 4780–81 (alteration in original) (quoting
FED. R. CIV. P. 23(h)). On a more general level, the Kansas Special Master noted that,
“the authority of courts to award reasonable attorneys’ fees and expenses pursuant to the
common fund doctrine and the related common benefit doctrine has long been
recognized.” Id. at 4781. And third, the Kansas Special Master observed that the
Settlement’s express text likewise accorded with these stated principles, providing that
“Settlement Class Counsel and other counsel representing Class Members who performed
work for the benefit of Class Members shall make Fee and Expense Applications . . . .”
Id. at 4781–82 (omission in original).
ii. Authority to Modify, Abrogate, or Disregard Private Agreements
Turning to the second issue—whether the Kansas district court could “invalidate
or modify” the “private contingent fee agreements entered into by certain Class Members
prior to settlement”—the Kansas Special Master concluded that the district court’s “legal
and equitable authority” empowered it to either abrogate or modify the contingent-fee
agreements as well as hours and fee calculations. Id. at 4745, 4786–88. Pointing
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primarily to decisions from our sister circuits, the Kansas Special Master explained that
the exercise of the court’s legal and equitable power to abridge contingent-fee agreements
was necessary to “meet the obligations imposed on [it] by Rule 23, supervise attorneys
that appear before [it], protect the interests of class members, and preserve the integrity of
the legal process.” Id. at 4788. In addition, the Kansas Special Master reasoned that
“implementing a reasonable cap on attorneys’ fees ‘safeguard[s] the public’s perception
of the courts and legitimacy of the legal system’s handling of massive MDLs and class
actions’ and ‘promotes justice for all parties by allowing claimants to benefit (as their
attorneys have) from the economies of scale and increased efficiency that an MDL
provides.’” Id. at 4789 & nn.127–28 (alteration in original) (footnotes omitted) (first
quoting In re NFL, No. 2:12-md-02323, 2018 WL 1658808, at *2 (E.D. Pa. Apr. 5,
2018); and then quoting In re Vioxx Prods. Liab. Litig., 650 F. Supp. 2d 549, 558 (E.D.
La. 2009)). She continued:
Moreover, in a class action, a court’s inherent authority to assess the
reasonableness of contingent fee agreements is underscored because of the
court’s performance of its fiduciary duty to protect class members’ interests
by approving class counsel, ensuring the terms of the settlement protect the
interests of class members, and approving attorneys’ fees.
Id. at 4789. Thus, the Kansas Special Master concluded that “in both class actions and
non-class MDLs”—characterizations relevant to this case—“federal district courts have
routinely capped attorneys’ fees, relying on their inherent authority over proceedings
before them and their equitable authority.” Id. at 4790 & n.130 (collecting cases).
Furthermore, the Kansas Special Master directed the parties and the court to the
Settlement itself, which “recognize[d] that the enforceability of any attorneys’ fee
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contract affecting a Class Member [was] subject to judicial review.” Id. at 4795. Indeed,
as the Kansas Special Master noted, section 9.21.1 of the Settlement provided that “[t]he
Court shall have exclusive jurisdiction to decide the enforceability of any lien.” Id.
(quoting Joint App., Vol. 5, at 1105). That section, among others, “contemplate[s]
judicial review of all attorneys’ fee contracts and liens.” Id. Settlement negotiations
anticipated modification and review of fee contracts, noted the Kansas Special Master—
as “[i]t was important to all parties to the negotiations . . . that similarly situated plaintiffs
. . . receive similar compensation under the Settlement Agreement, and that individually
represented plaintiffs would not receive a lower net recovery due to attorneys’ fee
obligations.” Id. at 4795–96.
The Kansas Special Master also considered what weight, if any, should be given to
pre-existing fee-sharing agreements and joint prosecution agreements (“JPAs”).7 At the
outset, the Kansas Special Master noted that a February 23, 2018, fee-sharing agreement
(the “Fee-Sharing Agreement”) signed on the heels of the Settlement was “not binding,”
as “[t]he decision regarding the total amount of fees to be awarded and how [those fees]
7
Not infrequently throughout this opinion, we refer to “JPAs” using the plural form.
We do so to refer to one set of documents—with materially identical terms—that
numerous lawyers or law firms representing plaintiffs entered into in this action. In other
words, our use of the plural form does not signify that there are multiple sets of
documents with materially different terms that constitute operative prosecution
agreements in this case. The set of documents at issue consists of the June 2015 Joint
Prosecution Agreement, as well as amendments and addenda thereto. Where a specific
joint prosecution agreement is at issue, we refer to that specific agreement by name (e.g.,
the “June 2015 Joint Prosecution Agreement” or “First Addendum”). Moreover, when
referring to the foundational June 2015 Joint Prosecution Agreement—which was
subsequently built upon through amendments or addenda—we frequently employ a
shorthand, referring to it simply in the singular form as “JPA.”
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should be allocated among the many plaintiffs’ lawyers . . . is within the sole discretion
of the Courts.” Id. at 4799. Nevertheless, she recommended the Kansas district court
“give significant weight to this Fee-Sharing Agreement” because its signatories “w[ere]
critical to the achievement of a settlement in this litigation.” Id. at 4799–4800. In other
words, “without these individuals’ willingness to overcome their personal and
professional differences and work cooperatively for the benefit of . . . plaintiffs whom
they all represented, this unique settlement could not have been achieved.” Id. at 4801.
Because of this, the Kansas Special Master found it “appropriate to give the Fee-Sharing
Agreement substantial weight in making decisions about allocations of fees.” Id. With
that background, the Fee-Sharing Agreement recommended 50% of the allocation should
go to the Kansas pool, 12.5% of the allocation should go to Minnesota Class Counsel,
17.5% should go to certain Illinois firms pressing mass action suits, and the remaining
20% should be left open for future allocation.
Several firms—but primarily Watts Guerra—maintained that the JPAs they
entered with class counsel should govern the Settlement’s allocation. Under one such
agreement executed in June 2015 (the “June 2015 Joint Prosecution Agreement”), certain
IRPA attorneys agreed to cooperate with class counsel and surrender a portion of their
fees to compensate class counsel, via a “Common Benefit Assessment[],” for mutually
beneficial efforts. Id., Vol. 13, at 3138–39 (Amended and Restated Joint Prosecution
Agreement, filed July 16, 2018). The agreement defined a “Common Benefit
Assessment” as a “common benefit fee and expense assessment ordered by a state or
federal MDL court in connection with a state or federal MDL.” Id. at 3136. As well, it
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stated that “the Parties agree that if and as such clients are entitled to any payment from
Syngenta in connection with settlement of or judgment on such clients’ Syngenta Claims,
such clients will be subject to 100% of the then-applicable Benchmark Common Benefit
Assessment.” Id. at 3138. The agreement additionally defined the “Benchmark Common
Benefit Assessment” as the “benchmark common benefit fee and expense assessment
ordered by the Federal MDL Court in connection with the Federal MDL.” Id. at 3136.
Regarding the JPAs, the Kansas Special Master rejected Watts Guerra’s contention
that “the JPAs executed by groups of plaintiffs’ counsel should govern decisions as to the
allocation of fees in th[e] class action context.”8 Id., Vol. 21, at 4802. To start, the
Kansas Special Master observed that the Settlement expressly abrogated the JPAs.
Specifically, section 9.24.1 in the Settlement “contains express language that it
‘supersedes all prior proposals, negotiations, agreements, and understandings relating to
the subject matter of this Agreement,’” which includes issues concerning attorneys’ fees.
Id. (quoting Joint App., Vol. 5, at 1106). Moreover, the “JPAs [were] irrelevant to the
award and allocation of fees in this nationwide class action settlement” because “they
ha[d] . . . been ‘overtaken by events,’ namely a nationwide class action settlement that
they did not contemplate.” Id. at 4802–03. As well, “the context in which Watts Guerra
. . . negotiated the JPA [was] further evidence of its inapplicability” to a class action
settlement situation. Id. at 4806. That is, the Kansas Special Master explained that the
JPA’s premise reflected “an effort by Watts Guerra . . . to secure a process that would
8
Watts Guerra was one of the appellants in these proceedings up until it
reached a settlement and was terminated as a party on January 7, 2021.
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automatically exclude its clients from any class and correspondingly limit their common-
benefit assessment on any individual recovery they secured.” Id. “It is inconsistent with
this premise,” though, “that the same JPA was meant to address the opposite scenario,
wherein [Watts Guerra’s] clients [would] elect to participate in a federal settlement class
and in which they [would] seek fees out of the common fund.” Id.
Moreover, a July 2015 Common Benefit Order entered by the Kansas district court
shortly after the June 2015 Joint Prosecution Agreement’s execution made clear that the
Joint Prosecution Agreement’s language concerning individual assessments did not
apply:
In the event that there is a class settlement, recovery or judgment in favor of
the class, no assessment pursuant to this Section will be made, either for
attorneys’ fees or for expenses, individually from any class member or
his/her/its individual attorney as to the portion of any class recovery
distributed to that individual class member if the class member remains in
the class (i.e., does not opt-out of the class). Instead, all fees and expenses
for that class member will come out of the overall class recovery funds
provided by defendants, as approved by the Court, or as otherwise Ordered
by the Court. The relationship between class counsel fees and costs obtained
through any class settlement or judgment and the Common Benefit Fund will
be addressed, if necessary, by later order of the court.
Id. at 4804 (quoting Joint App., Vol. 2, at 520 (Kan. D. Ct. Order Establishing Protocols
for Common Benefit Work and Expenses and Establishing the Common Benefit Fee and
Expense Funds, filed Mar. 6, 2015)).
The attorneys eventually amended the June 2015 Joint Prosecution Agreement in
January 2016. But that First Addendum did not change much. Unlike the June 2015
Joint Prosecution Agreement, the First Addendum contemplated fee-sharing in the
limited context of a Minnesota class. Under its terms, Minnesota counsel agreed to pay
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“33 1/3 % of the attorneys’ fees awarded in all [Minnesota] MDL Class Actions” to the
co-lead counsel. Id., Vol. 13, at 3164 (First Addendum to Am. and Restated Joint
Prosecution Agreement, filed July 16, 2018). Even in that circumstance, the First
Addendum did not grant “Minnesota MDL Class Actions” a national reach, defining it
instead to mean “any action pursued in the Minnesota MDL Court.” Id., Vol. 21, at 4805
(quoting Joint App., Vol. 13, at 3162).
And if a court declined to certify the Minnesota class, the First Addendum
expressly stated that only
[t]o the extent that class certification of a [Minnesota MDL Class Action] is
denied and/or Additional Minnesota Counsel have been, are engaged to or
otherwise decide to pursue cases for Producers or Non-Producers in one or
more individual actions, Additional Minnesota Counsel hereby join in the
[JPA] and are subject to all of the same rights and obligations of the
Remele/Sieben Group including, but not limited to, the assessments on
individual cases set forth therein.
Id., Vol. 13, at 3166 (emphasis added). In other words, the First Addendum (especially
when read as a whole) contemplated a limited fee-sharing agreement between myriad
Minnesota firms that would apply in “the limited context of a Minnesota class” and,
barring that, set forth an assessment plan to be leveraged against individual recoveries if a
party prosecuted an individual action against Syngenta. Id., Vol. 21, at 4805.
In sum, satisfied that the Kansas district court had ample authority to award
attorneys’ fees it found reasonable out of the aggregate fee award—irrespective of pre-
existing contingent-fee contracts, fee-sharing agreements, or JPAs—the Kansas Special
Master recommended a four-pool allocation scheme for distributing the roughly $503
million in total attorneys’ fees.
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c. The Four-Pool Allocation Scheme
The four-pool allocation scheme was predicated on the establishment of four
sources of funds—one pool of funds for IRPAs and three common benefit pools to be
assigned to the Kansas district court, the Minnesota state court, and the Illinois district
court. That scheme was largely devised by the Kansas Special Master in consultation
with the law firms spearheading the Syngenta litigation. To begin, the Kansas Special
Master assigned all law firms to a particular regional pool. “[W]here a particular law
firm should be placed” turned on “such factors as where the firm had filed lawsuits and
appeared in court; where that firm had filed its fee petition; which leadership group, if
any, ‘claimed’ that firm; whether the firm was identified as part of a group in the Fee-
Sharing Agreement; and the [Kansas] Special Master’s understanding of the alliances
among the hundreds of law firms in this sprawling litigation.” Id. at 4814–15.
After assigning each firm to one of the regional common benefit pools, the Kansas
Special Master recommended particular percentage allocations from the aggregate
attorneys’ fee award to each pool. This recommendation “considered the contributions of
the attorneys in each jurisdiction to the overall litigation and the settlement,” “tak[ing]
into account the history of the litigation, the available data regarding attorney hours
incurred, and the experience of [the Kansas Special Master] and [the Illinois Special
Master] in connection with settlement negotiations and implementation” as well as “the
terms of the Fee-Sharing Agreement.” Id. at 4815–16 (footnote omitted).
The Kansas Special Master identified “[s]everal points concerning this unique
litigation and settlement” that influenced her “allocation considerations,” including the
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considerable experience of lead plaintiffs’ counsel; the novel claims counsel raised and
the difficult issues of damages; Syngenta’s aggressive, first-tier defense; the absence of
government involvement and its role in increasing lead plaintiffs’ risk; lead plaintiffs’
counsel’s coordinated, efficient litigation efforts; the “enormous amount of work”
demanded by this case and the “hard-fought settlement negotiations”; the
“unprecedented” court decisions obtained; and the “extraordinary” results of the
litigation. Id. at 4783–85.
i. The IRPA Pool
The Kansas Special Master recommended 10% of the aggregate attorneys’ fee
award be allocated to the IRPA pool. The Kansas Special Master thought the amount
was “appropriate given the limited work done by IRPAs and the fact that common benefit
awards would also be available to any IRPAs who had significant participation in the
litigation or settlement process for the benefit of the Class.” Id. at 4809. She
recommended the IRPA pool funds “be allocated among IRPAs based on their clients’
proportionate share of settlement recoveries by all claimants represented by IRPAs.” Id.
ii. The Kansas Pool
The Kansas Special Master recommended that the Kansas common-benefit pool
receive 50% of the aggregate fee award. The Kansas Special Master recommended such
a sizable allocation to the Kansas pool because of the following considerations:
The Kansas group not only took on a leadership role in the federal MDL, it
conducted and coordinated massive fact and expert discovery against both
Syngenta and third parties spanning multiple countries and at substantial
expense. It also obtained significant rulings on complex legal issues,
including removal issues that cleared the path for state court litigation and
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responses to Syngenta’s motions to dismiss and for summary judgment. The
Kansas group pursued and obtained certification of both a nationwide class
and eight statewide classes, again surmounting complicated legal hurdles.
Perhaps most significantly, it tried the Kansas class litigation to a $217.7
million verdict.
Id. at 4818. Furthermore, the Kansas Special Master observed that “participation
of the Kansas MDL Leadership in a nationwide class settlement was critical to its
success.”9 Id.
iii. The Minnesota Pool
Turning to Minnesota, the Kansas Special Master recommended that the
Minnesota common benefit pool receive 24% of the aggregate fee award. In this regard,
the Kansas Special Master recognized that, “[u]nquestionably, the Minnesota state court
litigation both advanced the cause of pressuring Syngenta on multiple fronts, and,
through coordination with Kansas counsel, assisted the nationwide class effort.” Id. at
4819. The combination of “a class action and a significant number of individual suits” in
Minnesota “resulted in the specter of multiple bellwether trials for Syngenta, with
corresponding discovery burdens and the development of new experts to compliment
those developed in the Kansas MDL litigation.” Id. In effect, “Minnesota counsel forced
Syngenta to divide its resources and fully work up” a bellwether case, ultimately resulting
in Syngenta settling the claims brought during the uncompleted Minnesota class trial. Id.
9
The Kansas Special Master specifically commended the work of Mr.
Christopher Seeger of Seeger Weiss LLP, who was the Settlement Class Counsel and the
leader of the PNC. Indeed, the Kansas Special Master opined that “without [Mr.
Seeger’s] involvement, a settlement [was] unlikely to have been achieved—certainly not
in the same timeframe or at the same amount.” Joint App., Vol. 21, at 4818.
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Nonetheless, it was clear to the Kansas Special Master that Minnesota counsel’s
contributions to the settlement were decidedly second to those of Kansas counsel, in part
because the “Minnesota lawyers did not have a unitary position in the settlement
negotiations.” Id.
iv. The Illinois Pool
Finally, the Kansas Special Master recommended that the Illinois common benefit
pool receive 16% of the aggregate fee award. The Kansas Special Master acknowledged
that the Illinois litigation “presented an important third pressure point on Syngenta to
resolve the growing litigation against it.” Id. at 4820. However, “[f]rom a settlement
perspective, Illinois counsel initially presented a significant barrier to resolution,” despite
certain Illinois counsel later proving to be “critical to [the settlement’s] success.” Id.
The Kansas Special Master specifically explained that one lawyer “in particular was
fundamentally opposed to a class solution and pressed hard to proceed with individual
litigation.” Id. But another Illinois lawyer who agreed to participate and to convince the
uncooperative lawyer and his group to participate in the settlement process, was crucial to
the Settlement’s success after “Syngenta made clear that piecemeal resolution was not an
option.”10 Id.
10
Following the Kansas district court’s lead, the Illinois district court
appointed the Honorable Daniel Stack, “a retired judge who had served as a special
master for settlement purposes,” as a special master in the Illinois district court
proceedings pursuant to Rule 53 of the Federal Rules of Civil Procedures “to make a
recommendation concerning any allocation of attorney fees by that court.” Joint App.,
Vol. 32, at 7438 (Kan. D. Ct. Mem. and Order, filed Nov. 19, 2019) (“November 2019
Illinois Pool Allocation Order”).
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3. The District Court’s December 31, 2018, Fee Allocation Order
In a December 31, 2018, Fee Allocation Order, the Kansas district court largely
adopted the Kansas Special Master’s November 2018 Fee Allocation R&R. In relevant
part, the district court agreed it possessed the requisite authority to modify, abrogate, or
otherwise disregard the private agreements executed between attorneys and their clients,
and amongst each other. Moreover, it largely adopted the hybrid, four-pool scheme,
though it allocated more funds to the IRPA pool than the Kansas Special Master
recommended.
a. The Kansas District Court Agrees It Has Authority to Set a Reasonable Fee
Award
Pursuant to Rule 53 of the Federal Rules of Civil Procedure, the Kansas district
court reviewed “de novo all objections to the [Kansas] [S]pecial [M]aster’s factual
findings and legal conclusions.” Id., Vol. 23, at 5352. Agreeing with the Kansas Special
Master, the court read our precedent to authorize “an award of fees from the settlement
fund to both attorneys who performed common benefit work and attorneys who filed
individual cases.” Id. at 5352–53. And, in any event, the court observed that “[n]o
attorney . . . argued, either in applying for fees or in objecting to the [November 2018 Fee
Allocation] R&R, that the Court may not adopt such an approach.” Id. at 5353.
Nor did any attorney specifically object to the Kansas Special Master’s conclusion
regarding the court’s authority to modify contingent-fee contracts, though Watts Guerra
questioned in its briefing whether the court could exercise such power. Nonetheless—
and in view of its obligation to conduct a de novo review—the court concurred with the
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Kansas Special Master’s “thorough discussion” of the court’s authority to “effectively
modify individual contingent fee contracts relating to th[e] litigation [in order] to limit
any contingent recovery by attorneys to the fees awarded and allocated by the Court.” Id.
And, on its own, the court concluded it “may exercise its inherent authority to supervise
attorneys appearing before it, to act as a fiduciary for and protect the interests of the
settlement class members, and to ensure that the integrity of the judicial process is not
undermined by the recovery of unreasonable attorney fees.” Id. at 5354.
In arriving at this conclusion, the district court “reject[ed] some objectors’
arguments that any award to IRPAs should be governed by [the JPAs] executed among
some plaintiffs’ attorneys or Common Benefit Orders (CBOs) issued by the courts.”11 Id.
at 5360. Watts Guerra and another firm, Bassford Remele, P.A. (“Bassford”), were the
11
Based on our reading of the Kansas Special Master’s November 2018 Fee
Allocation R&R, it appears that other courts involved in the expansive litigation against
Syngenta entered common benefit orders. See Joint App., Vol. 21, at 4784, 4825. The
Kansas district court seems to have had this understanding—in referring to CBOs (plural)
entered by other courts. The Kansas district court’s July 2015 Common Benefit Order,
however, appears to be the only CBO in the Joint Appendix and is the only one that the
parties address in their arguments on appeal. There appears to be a logic underlying this
circumstance: specifically, it was in the July 2015 Common Benefit Order that the district
court signaled its view that the private agreements between attorneys in this litigation
regarding fees or expenses—whether reflected solely in JPAs or memorialized in CBOs
entered by other courts—concerned individual assessments, not the recovery of fees or
expenses after the resolution of a class action, by settlement or judgment. That is, the
concern of such attorney agreements was not a class recovery. The court implemented
this vision in rejecting the objectors’ arguments—following the class action settlement
here—that contended the JPAs or CBOs should govern any award to the IRPAs. Further,
it was this vision that ultimately led the court (as discussed infra) to give “no weight to
the percentages contained in the JPAs and CBOs” because they were “intended for and
addressed different circumstances,” that is, circumstances involving individual
assessments, not class recoveries. Id., Vol. 23, at 5360.
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only two firms to meaningfully argue that the JPAs should govern the fee allocation
scheme.
In its objections, Byrd requested “the opportunity to speak at the [attorney fee
allocation] hearing on December 17, 2018,” but devoted most of its written argument to
the proposed modification of the contingent-fee agreements. Id., Vol. 22, at 4951–57
(Byrd’s Obj. to November 2018 Fee Allocation R&R, filed Dec. 5, 2018). To the extent
Byrd discussed the JPAs, it urged the district court to consider the JPAs’ policy virtues:
Furthermore, individual lawyers will be hard pressed to come to an
agreement to litigate together with the class lawyers while class certification
is pending. In this case, the individual lawyers and the class lawyers had an
agreement (the Joint Prosecution Agreement) in place to account for a
commingled world should the Court certify a class, and that agreement was
summarily discarded after the global settlement was reached. Lawyers like
those in our group . . . will be extremely hesitant to expend the amount of
effort and costs to create a similar coalition to fight the next biotech company
when that company ignores the interconnected market and causes a trade
disruption.
Id. at 4957.
Shields also objected to the November 2018 Fee Allocation R&R. Insofar as
Shields could be said to have objected to the Kansas Special Master’s recommendation
regarding the JPAs, that objection is contained in the following paragraph:
For sake of brevity, [Shields] joins in the legal argument and objections
presented by our Minnesota Co-Lead Counsel, [Bassford] and [Watts
Guerra] and incorporates the same as set forth herein along with supporting
exhibits. We offer our objection as an additional support that the IRPA Fund
has been undervalued by the Special Master and should be increased
substantially.
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Id. at 5085 (Shields’s Obj. to November 2018 Fee Allocation R&R, filed Dec. 5, 2018)
(emphasis added). Yet, Shields omitted any reference to the JPAs and, instead, devoted
the bulk of its four-page brief to the IRPA allocation and the contingent-fee issue.
Agreeing with the analysis in the November 2018 Fee Allocation R&R “and the
briefs of the MDL [L]eadership,” the district court concluded the JPAs and CBOs “do not
govern” because (1) “the Court is not bound by a private agreement among attorneys”;
(2) “the JPAs address the issue of fees that might be recovered in multiple separate
litigations, and by their terms they do not apply to the present situation involving a
nationwide settlement class”; (3) “the [S]ettlement [A]greement . . . expressly supersedes
all other agreements”; and (4) “CBOs addressed the issue of assessments in the event of
individual recoveries, and they do not apply to this recovery by a settlement class.” Id.,
Vol. 23, at 5360 (emphasis added). Thus, because the Kansas district court was not
bound by them, it gave “no weight to the percentages contained in the JPAs and CBOs,
which were intended for and addressed different circumstances.” Id.
b. The Court Adopts the Four-Pool Approach but Modifies the Allocation
Terms for the IRPA Pool
Having concluded it possessed significant authority to craft the allocation of
attorneys’ fees in the most reasonable manner, the Kansas district court adopted the
Kansas Special Master’s two-stage, “general approach” to the allocation of the attorneys’
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fee award, “by which the award is first allocated among the three common benefit pools
and the IRPA pool.”12 Id. at 5357. The court detailed its reasons below:
The Court agrees with the [Kansas Special] [M]aster that this is the most
reasonable and appropriate way to allocate the fee award, for the reasons set
forth in the [November 2018 Fee Allocation] R&R, particularly given the
hybrid nature of this litigation, which involved both class and individual
claims. Creation of the IRPA pool allows the Court to recognize the
contribution to the ultimate recovery made by the very existence of the huge
number of individual claims, while at the same time limiting fees for those
attorneys to a reasonable amount. Creation of the three common benefit
pools allows for a reasonable allocation of the remainder of the fee award
based on the attorneys’ relative contributions to the recovery, including the
actual litigation of the claims against Syngenta and the negotiation and
defense of the settlement. Although there was overlap among jurisdictions,
particularly because of the great amount of coordination among plaintiffs’
counsel, the fact that the litigation took place primarily on the three discrete
jurisdictional fronts allows the remainder to be divided reasonably into the
three pools based on a comparison of the relative contributions to the
recovery by the attorneys placed in those pools. This framework further
allows the court most familiar with the work on a particular front to allocate
fees to particular attorneys and firms within that court’s common benefit
pool. Although the task of allocation is necessarily a difficult one, the
framework recommended by the [Kansas] [S]pecial [M]aster most ably
facilitates a reasonable allocation.
Accordingly, the Court rejects Watts Guerra’s argument in favor of a direct
award to it of a fixed percentage of the attorney fee award. Similarly, the
Court rejects the argument by [Weller, Green, Toups & Terrell, LLP, and
The Coffman Law Firm (“Toups/Coffman”)] in favor of a single-stage
approach undertaken after the claimants’ recoveries are determined. No
other attorney has objected to the recommended two-stage approach, and the
Court is persuaded that the attorney fee award may be allocated reasonably
and appropriately among the pools at this time.
Id. at 5357–59.
12
Recall that the Kansas Special Master recommended the following two-
stage approach: at the first stage, funds are allocated to the specific pools, and then at the
second stage, the funds are disbursed to individual lawyers and law firms.
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Moreover, the Kansas district court “agree[d] . . . that it [was] appropriate to
include an allocation to an IRPA pool from the total award of fees,” because the number
of individual suits incentivized Syngenta to settle. Id. at 5359. The court thus “adopt[ed]
the factual findings in the [November 2018 Fee Allocation] R&R concerning the relative
weight of the contributions by IRPAs and by attorneys performing common benefit
work.” Id. at 5360.
Additionally, the Kansas district court rejected objections “argu[ing] that IRPAs
did enough work to justify a larger IRPA pool allocation than that recommended in the
[November 2018 Fee Allocation] R&R.” Id. at 5361. The court “agree[d] with the
[Kansas] [S]pecial [M]aster . . . that the relative contribution to the ultimate recovery,
based on the mere existence of individual claims (the basis for any common fund
allocation to the IRPA pool), is small when compared to the pools allocated to attorneys
who performed work that benefited the entire settlement class.” Id. (emphasis added).
Moreover, the court concurred that the “time and expense incurred by IRPAs in recruiting
clients d[id] not contribute to the ultimate recovery.” Id. As the court put it, “[t]he key . .
. [was] that the IRPAs were relieved of having to do any work to advance their clients’
lawsuits or to add value to their claims.” Id. at 5362. However, to the extent an IRPA
attorney “did engage in such work that could be said to benefit the overall litigation and
recovery,” the court’s allocation scheme enabled that attorney to also “seek . . . fees from
the common benefit pools.” Id.
Notwithstanding its rejection of the objectors’ efforts to procure a larger share of
the aggregate fee award, the Kansas district court was sensitive to the time IRPA firms
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devoted to their cases and their contingent-fee contracts. After all, it agreed with the
IRPAs that “represented claimants w[ould] [likely] recover more than 50 percent of the
total recovery by all claimants.” Id. at 5366–67. With their labor and client agreements
in mind, the Kansas district court found an “effective 10 percent contingent fee”
reasonable. Id. at 5366. To achieve that “effective” 10% cap, the court augmented the
recommended IRPA allocation from 10% to 12%. The court concluded that the entire
IRPA pool would “be distributed to IRPAs on a pro rata basis tied to the recovery by
IRPA clients.” Id. at 5367. Thus, the “effective contingent fees for IRPAs [would] not
[be] capped at any particular percentage, but rather [would be] limited only by the size of
the IRPA pool.” Id.
By way of the common benefit and IRPA pools, the Kansas district court
“intend[ed] that its fee award from the settlement fund cover all fees recovered by
attorneys on contingent fee contracts relating to claims included in this settlement.” Id.
That is, “any attorney representing a client on a contingent fee basis relating to claims
covered in th[e] settlement [could] recover attorney fees only from the pools created by
[the December 31, 2018, Fee Allocation] [O]rder, allocated from the Court’s total one-
third fee award.” Id. at 5367–68. Such attorneys, under the court’s scheme, “may not
recover any additional fees from the client’s recovery based on any contingent-fee
contract.” Id. at 5368. Alluding to its obligations to ensure that fee awards remain
reasonable, the Kansas district court justified this restriction by reference to its inherent
authority, as well as that vested in it by the Federal Rules of Civil Procedure and the
Settlement.
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Having resolved these issues, the court “adopt[ed] the following procedure for
distribution from the IRPA pool”:
Once the amount of each claimant’s recovery from the settlement fund has
been determined, the claims administrator, with oversight by the [Kansas]
[S]pecial [M]aster, shall calculate the pro rata IRPA award to be made from
the IRPA pool to each attorney who has applied for a fee award, and the
amount of an attorney’s proposed IRPA fee award shall be communicated to
that attorney, who shall have the opportunity to object to the calculation by
the administrator. After the administrator has attempted to resolve any
objection, the [Kansas Special] [M]aster shall file a report and
recommendation concerning the proposed distribution of the IRPA pool to
particular attorneys or law firms, in which [she] shall note any outstanding
objections and her recommendations concerning those objections.
Objections to that report and recommendation may be filed within 14 days,
and the Court will then resolve any such renewed objections.
Id. at 5371–72 (emphases added).
c. The Court Largely Adopts the Common Benefit Pool Allocations
Then, turning to the common benefit pools, the Kansas district court adopted the
Kansas Special Master’s recommendation concerning the assignment of attorneys, law
firms, and attorney groups to the three pools; no firm objected to its own placement
within one of those three pools. However, the court clarified, in response to a question
from Johnson Becker, PLLC (“Johnson Becker”), one of the appellants in this case, that
“each applicant will eventually receive an award of fees based on its common benefit
work anywhere, performed with respect to cases in any jurisdiction, regardless of the
particular pool into which the applicant is placed.” Id. at 5373 (emphases added).
The court also largely agreed with the Kansas Special Master’s rationale for
relative allocations among the common benefit pools, concluding that her allocations
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were “reasonable for all of the reasons [she] stated . . ., including a consideration of the
applicable Johnson factors.” Id. at 5374.
First, as to Illinois, the court particularly “agree[d] that the cases [there] provided a
valuable third front in the overall litigation against Syngenta, which created additional
pressure on Syngenta to resolve the litigation,” and that the “contributions of the Illinois
firms were not trivial or insignificant.” Id. “At the same time, however, . . . those
contributions were outstripped to a considerable degree by the contributions made by”
counsel in the Kansas and Minnesota pools. Id. at 5374–75. Unlike their Kansas and
Minnesota counterparts, “the Illinois attorneys did not try (or begin the trial of) any of
their cases against Syngenta.” Id. at 5375. And the rulings that they did garner “for the
most part . . . followed similar rulings after litigation of the same issues in [the Kansas]
and the Minnesota court[s], which allowed the Illinois attorneys to rely to a great extent
on work that had already been performed by other attorneys.” Id.
As the Kansas district court explained, the Kansas MDL and the “massive
consolidated action in Minnesota” drove the “successful resolution” of the litigation
against Syngenta, leaving the Illinois litigation “third in the pecking order.” Id.
Moreover, much of the work of certain Illinois firms—Clark, Love & Hutson, PLLC;
Meyer & Flowers, LLC; and Phipps Anderson Deacon, LLP (collectively,
“Clark/Phipps”)—“ultimately proved unsuccessful, which . . . bolstered Syngenta’s
position and thus did not contribute to achievement of the settlement.” Id. “These
factors support[ed] an allocation to the Illinois pool . . . much lower than the allocations
to the other two pools,” and, therefore, the Kansas Special Master “str[uck] a reasonable
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balance in her allocation to the Illinois pool relative to the allocations to the other pools.”
Id.
Second, as to the two other fora, the Kansas district court found that the Minnesota
attorneys significantly contributed to the ultimate settlement class but that their
contribution “did not approach that made by the attorneys in the Kansas pool, especially
in litigating the MDL.”13 Id. at 5376. While “two trials were started” in Minnesota,
“only in the Kansas MDL did plaintiffs obtain a verdict against Syngenta.” Id. Indeed,
“[t]he [Kansas] MDL drove the entire litigation against Syngenta”—by achieving the first
major rulings on dispositive motions, leading investigations and discovery, retaining
expert witnesses, and obtaining eight statewide class certifications—“and for the most
part the MDL proceeded on an earlier track than the Minnesota consolidated litigation.”
Id. Further, “Syngenta’s greatest exposure came from the [Kansas] MDL, in which it had
already suffered one adverse class action verdict, trials for the other seven certified
classes had been scheduled (in which Syngenta would again face the possibility of
punitive damage awards), and certification of at least 12 other statewide classes loomed.”
Id. Considering these facts, the Kansas district court concluded the relative allocations to
the Minnesota and Kansas pools were reasonable.
13
As the Kansas district court noted, Minnesota leadership did not object to
the Kansas Special Master’s allocations to the three common benefit pools. The district
court overruled the sole objection to the Minnesota pool—made by Watts Guerra—and
found that the Kansas Special Master’s allocation was “reasonable.” Joint App., Vol. 23,
at 5376.
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However, given the 2% increase in the allotment to the IRPA pool, the district
court reached a slightly different division of the total fee award amongst the common
benefit pools. After determining that 12% of the total fee award should be allocated to
the IRPA pool, the Kansas district court allocated 49% to the Kansas common benefit
pool, 23.5% to the Minnesota common benefit pool, and 15.5% to the Illinois common
benefit pool.
Concluding the December 31, 2018, Fee Allocation Order, the Kansas district
court adopted the Kansas Special Master’s recommendation to award a total of
$48,842,866.12 in expenses in addition to, and separate from, the one-third award of
attorneys’ fees.14 The court also approved service awards in the amount of $2,782,500.
4. Distribution of the Attorneys’ Fee Award
Following issuance of the December 31, 2018, Fee Allocation Order, the Kansas
district court consulted with the judges overseeing the litigation in Minnesota and Illinois,
and all three judges “expressly” approved of the allocation framework—and initial
allocation of fees—described in the order. Id., Vol. 25, at 5860–61 (Kan. D. Ct. Mem.
and Order, filed Mar. 20, 2019) (“March 2019 Kansas Pool Allocation Order”). The
judges likewise agreed that the funds in the three common benefit pools would be
allocated to the attorneys in each pool based on work performed that benefitted the
settlement class, irrespective of whether they performed such work pursuant to a court-
issued common benefit order. All three judges filed orders allocating and distributing the
14
No attorney objected to the Kansas Special Master’s various
recommendations concerning expenses.
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attorneys’ fees among the law firms within the common benefit pools. What follows is a
largely chronological description of those orders and any pertinent objections raised by
the parties, as brought to the corresponding courts.
a. The March 2019 Kansas Pool Allocation Order
The Kansas pool fund consisted of $246,633,333.33. In a separate order also
issued on December 31, 2018, the Kansas district court granted the request of the Kansas
CLC that they be designated to divide the Kansas pool’s allocation.15 The court then
ordered the Kansas CLC to file an R&R concerning their proposed division of the
allocation, which the Kansas CLC filed on February 1, 2019. Over the objections of two
firms—Toups/Coffman and Hossley-Embry, LLP (“Hossley-Embry”), both appellants in
this case—the Kansas district court adopted the R&R in full on March 20, 2019.
The CLC’s R&R divided the firms into six tiers:
(1) Tier One consisted of the four Kansas CLC members and the
Settlement Class Counsel, to be awarded $214,895,659.86;
(2) Tier Two consisted of six firms involved since the beginning of the
litigation, “whose work focused on litigation of the class and
bellwether cases” and who “participated in legal briefing, expert
discovery, and the Kansas trial, although to a lesser extent than the
Tier 1 firms[,]” to be awarded $21,026,771.70;
(3) Tier Three “consist[ed] of five firms that performed substantive legal
work on class and bellwether plaintiff claims,” to be awarded
$5,939,040.00;
15
As the Kansas district court later explained, it asked the Kansas CLC for an
allocation proposal “because those attorneys took the lead and performed the great
majority of the substantive work on behalf of plaintiffs in this litigation.” Joint App.,
Vol. 25, at 5865. Accordingly, the Kansas CLC was “in the best position to judge the
relative contributions by the petitioning attorneys to the settlement and the benefit of the
settlement class.” Id.
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(4) Tier Four consisted of thirty-two firms who either represented
individual bellwether plaintiffs, filed class-action lawsuits to protect
against the running of the statute of limitations, or represented “non-
producer class representatives or bellwether plaintiffs,” to be awarded
$2,546,876.50;
(5) Tier Five “consist[ed] of nine firms that filed individual cases for
plaintiffs who were not part of the MDL bellwether discovery pool”—
with the “common benefit work” performed by these firms limited to
“drafting complaints” and preparing “plaintiff fact sheet[s] [“PFSs”]”
that were “actually filed or submitted to Syngenta”—to be awarded
$1,821,136.50; and
(6) Tier Six consisted of three firms that served as settlement counsel for
certain subclasses, to be awarded $403,848.75.
Id. at 5862–65.
The Kansas CLC also recommended that two firms in Tier Two and three firms in
Tier Four should be allowed to seek fees from the Minnesota common benefit pool.
We note that the court “appreciate[d] that an inherent conflict exist[ed]” in tasking
the Kansas CLC with generating a specific allocation proposal for each firm, “in that any
undercompensation of non-lead counsel would increase [the] [Kansas] CLC’s own share
of the fee pool.” Id. at 5865–66. Considering this risk, the court “emphasize[d] that it . .
. exercised its independent judgment” in adopting the Kansas CLC’s proposal “to ensure
a fair allocation of common benefit fees from th[e] pool.” Id. at 5866.
In that vein, the court concluded that the recommended allocation was “fair,
reasonable, and appropriate,” id. at 5865, and it commended the Kansas CLC for “an
excellent job in making its recommendations,” id. at 5866. Noting that “[n]o firm . . .
objected to the tier or tiers into which it was placed,” the court agreed with the Kansas
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CLC’s treatment of each specific tier. Id. It gave particular attention to the Tier Five
recommendations:
[T]he Court agrees with [the Kansas] CLC’s recommendations concerning
the allocation to firms in Tier 5. These firms did not perform any particular
substantive work to advance the litigation on behalf of plaintiffs other than
filing and maintaining individual lawsuits against Syngenta. The mere fact
that such individual suits had been filed (with the threat of opt-outs) did
contribute to the overall benefit of the settlement class, and that contribution
justified an award of fees to IRPAs. Thus, an attorney’s contribution in
having an individual client and filing an individual lawsuit will be
compensated by an award from the IRPA pool. As the Court stated in its
[December 31, 2018,] [Fee] [A]llocation [O]rder, work completing a
significant number of PFSs that were actually served on Syngenta and work
drafting complaints for multiple plaintiffs could benefit the entire settlement
class and thus could reasonably be compensated from the common benefit
pools. For that reason, the Court agrees with [the Kansas] CLC’s
recommendation that Tier 5 attorneys who did not perform particular legal
work that benefitted the entire settlement class should receive an allocation
from the Kansas common benefit pool only for such work preparing served
PFSs and drafting complaints. Although the Court noted that such work
would not be weighed as equal to other common benefit work, [the Kansas]
CLC has been fairly generous i[n] recommending that Tier 5 attorneys
receive their entire requested lodestar amounts for work drafting complaints,
and the Court agrees that such allocations are appropriate. The Court also
noted that PFS work could reasonably have been performed at a lower
attorney rate or even at a paralegal or staff rate, and it agrees with [the
Kansas] CLC that a flat rate of $600 per PFS is appropriate for this work that
was mostly clerical in nature.
Id. at 5868 (emphasis added) (citations omitted).
i. Toups/Coffman’s Objections
The Kansas CLC recommended that Toups/Coffman “receive a total of
$236,571.88 in fees (using a 1.25 multiplier) for Tier 4 work” and “receive $909,050.00
under Tier 5, consisting of $387,050 for drafting individual complaints and $522,000 for
preparing 870 PFSs that were served on Syngenta”—all for “a total award . . . of
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$1,145,621.88 (which d[id] not include amounts that [Toups/Coffman] w[ould] receive
from the IRPA pool).” Id. at 5869.
Toups/Coffman only objected to the Kansas CLC’s Tier Five allocation
recommendation.16 Its objections, however, merely “revive[d] . . . old arguments” that
the Kansas district court previously rejected. Id. Those arguments included (1) that the
court should not prohibit Toups/Coffman’s collection of fees under its contingent-fee
contracts with clients or through its lodestar; (2) that the court should not use the four-
pool framework but should instead base fee awards solely on the number of bushels
produced by claimant clients; and (3) that a one-third fee award is too high for a mega-
fund settlement.
The court explained that, in renewing those arguments, Toups/Coffman neglected
“to explain how the Court erred in previously rejecting them or even to address the
Court’s reasoning on those points.” Id. Thus, the Kansas district court “summarily
denied” these recycled objections, resting on its previously stated rationale in the
Aggregate Fee Order and December 31, 2018, Fee Allocation Order, “including its
conclusions that attorney fees should be allocated first and foremost by reference to the
work that most contributed to the outcome and that a fee award at the top of the range of
awards in similar cases is appropriate in this case.” Id. at 5869–70.
16
The court noted that the firms declined to object to the Kansas CLC’s Tier
Four recommendations, as they “[were] not worth quibbling over at this juncture.” Joint
App., Vol. 25, at 5869.
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The court also rejected Toups/Coffman’s contention that “it should receive its
entire lodestar of $25.17 million . . . incurred representing its individual clients (which is
exclusive of the common benefit work for which it received compensation in Tier 4).”
Id. at 5870. Toups/Coffman argued that the Kansas CLC’s allocation effectively
precluded it from recovering on the “thousands of hours” it spent communicating with
clients, obtaining forms and documents, monitoring the litigation, and submitting claims.
Id. But, at bottom, Toups/Coffman did not explain to the court’s satisfaction how this
work contributed to the settlement “and thus inured to the benefit of the entire settlement
class.” Id. In any case, the court observed that the allocation compensated
Toups/Coffman for drafting complaints and preparing PFSs. So, the court declined to
award Toups/Coffman its entire lodestar. However, it nevertheless pointed out that
Toups/Coffman would receive some compensation for this work from the IRPA pool, in
addition to the “properly limited” compensation from the Kansas common benefit pool
for “work preparing a significant number of served PFSs and a significant number of
complaints.” Id. at 5870–71.
ii. Hossley-Embry’s Objections
Turning next to Hossley-Embry’s objections, the Kansas district court noted that
the Kansas CLC’s R&R recommended the firm “receive a total of $95,250 in fees (using
a 1.25 multiplier) for Tier 4 work” plus “$578,450 under Tier 5, consisting of $189,050
for drafting individual complaints and $389,400 for preparing 649 PFSs.” Id. at 5871–
72. Thus, under the Kansas CLC’s distribution scheme, Hossley-Embry would receive a
total of $673,700 from the Kansas common benefit pool. This amount did not bear on
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any fee award Hossley-Embry could receive from the IRPA pool. Hossley-Embry
“object[ed] to the recommended rate of $600 for each PFS prepared and submitted to
Syngenta,” which was “based . . . on a maximum of two attorney hours (at a $300 hourly
rate) per PFS.” Id. at 5872. Hossley-Embry argued “that two hours per PFS [was] too
low, and that it should instead be compensated its lodestar amount for the approximately
seven hours it spent on each PFS.” Id.
The Kansas district court rejected this argument for three reasons. First, in the
court’s view, Hossley-Embry’s lodestar estimates were suspect because a declaration
from its associated counsel was internally inconsistent. Second, “much of the work
described by Hossley[-][Embry] consist[ed] of communicating with the client and
obtaining and organizing documents”—work “more appropriately compensated by an
award from the IRPA pool.” Id. at 5873. As to “PFS preparation time,” such time,
according to the court, was “reasonably compensated at a lower attorney rate or even at a
paralegal or staff rate, which means that a $600 award might translate to three or four or
five hours per PFS.” Id. “Again,” reiterated the court, “the preparation of PFSs
contributed to the favorable outcome to a relatively small extent, and a rate of $600 per
PFS—a rate that reasonably approximates the lodestar for that task—is reasonable and
appropriate for the allocation of fees to Tier 5 firms.” Id. (emphasis added).
Hossley-Embry also objected to its Tier Four allocation, arguing that it should
have received a higher lodestar rate than what its own records supported and a multiplier
as high as certain Tier Two firms. The Kansas district court was unpersuaded. With
respect to Hossley-Embry’s first argument, the court reiterated that “the work performed
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by the Tier 2 firms contributed more to the common benefit of the settlement class than
the Tier 4 work performed by Hossley[-][Embry].” Id. at 5874. The court found
Hossley-Embry’s next objection similarly unavailing. Hossley-Embry sought a higher
lodestar figure based on an hourly rate higher than the one it provided—$345 for its Tier
Four work—because a different firm received an award based on a rate of $810 per hour.
But, because Hossley-Embry received the rate that it, itself, used in compensating its own
Tier Four work, the firm could not “be heard to argue that its attorneys’ time was actually
more valuable than previously stated.” Id.
b. The Kansas District Court’s April 2019 Clarification Order
On April 2, 2019, the Kansas district court entered an order clarifying that it would
issue all final fee award orders, including those described in the allocation orders to be
issued by the Minnesota state court and the Illinois district court.17
This order addressed certain plaintiffs’ counsel, who sought clarification as to
“how any appeals from the three courts’ fee award allocations w[ould] be taken” and
requested the Kansas district court mandate “that the allocation orders by the Minnesota
and Illinois courts be filed [in the Kansas district court] for inclusion in a final judgment
by [that court], from which judgment all appeals could be taken.” Id., Vol. 26, at 5922
(Kan. D. Ct. Mem. and Order, filed Apr. 2, 2019) (“April 2019 Clarification Order”).
17
The court issued the order soon after it issued the March 2019 Kansas Pool
Allocation Order, while the allocations of the other common benefit pools were ongoing.
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Noting that such an approach “seem[ed] to run counter to the previous
understanding of the three courts and counsel,” the court nonetheless “agree[d] with
[m]ovants that the settlement agreement require[d] that final allocation awards be issued
by [the Kansas district court].” Id. at 5923. After all, the Settlement provided that “any
Fee and Expense Award . . . shall be issued by [the Kansas district court] (in consultation
with and approved by the other two courts), and that [the Kansas district court] retain[ed]
exclusive jurisdiction over a Fee and Expense Award.” Id. The Settlement also gave the
Kansas district court “exclusive jurisdiction over the settlement fund, and thus any
disbursements from that fund for attorney fees must be authorized ultimately by [the
Kansas district court].”18 Id. at 5924. Accordingly, the court granted counsels’ motion
and ordered that, “[a]t the conclusion of the allocation procedures in Minnesota and
Illinois,” those courts’ “allocation rulings . . . [be] filed in” the Kansas district court,
which would “subsequently issue final allocation orders and authorize that funds be
disbursed to attorneys.” Id.
The Kansas district court also clarified two additional matters. First, the court
rejected the petitioners’ suggestion that it could issue a final allocation order for the three
common benefit pools before deciding the IRPA pool’s final allocation. Agreeing with
Toups/Coffman, the court reasoned that, “despite the IRPA formula having been set,” no
firm knew “how much it w[ould] receive from that pool,” a consideration that could
18
Relatedly, the Kansas district court explained that its Final Order and
Judgment of December 7, 2018, relevant to the Aggregate Fee Order, also established
that it had “exclusive jurisdiction over the settlement fund and the allocation and
distribution of attorney fees.” Joint App., Vol. 26, at 5924.
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factor in “that firm’s argument on appeal.” Id. at 5925. At the same time, the court
opined that “the issue of when orders are final for purposes of appeal and the issue of
when appeals are best considered by the appellate court are for the parties to consider and
litigate to the Tenth Circuit.” Id. The Kansas district court explained that it would
continue to issue final allocation orders for each common benefit pool one by one, “as
completed,” given that “[t]here is no requirement that [its] final allocation rulings be
contained in a single order.” Id. It would “then be up to interested parties to prosecute
appeals when and how they [saw] fit.” Id.
Second, because it would issue the final allocation orders, the Kansas district court
would “not . . . merely . . . sign off on the allocations [issued] by the Minnesota and
Illinois courts without any consideration whatsoever.” Id. at 5926. To that end, the court
explained that it would “not foreclose entirely the opportunity for attorneys to litigate
whether [it] should adopt the other courts’ allocations without alteration.” Id. That said,
the court made plain that it would “defer to the reasoning of the other courts in making
their allocations of the Minnesota and Illinois pools,” as those courts were “best
position[ed] to understand the relative contributions of the attorneys assigned to those
pools to the ultimate outcome of the litigation against Syngenta.” Id. at 5926–27.
Accordingly, the Kansas district court outlined the parameters for permissible
objections: specifically, “objections to specific allocations based on the judgment of those
courts” would not be entertained, whereas objections to “structural and procedural issues”
would be. Id. at 5927. By way of example, the Kansas district court noted “an attorney
could object . . . on the basis of a fraud in the proceedings in the other court,” which
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requires “at least . . . a mechanism by which [such objection] could be raised.” Id. at
5927 n.4. But the court “would not entertain an objection based on the argument that the
objector’s contribution to the settlement class should have been given more value.” Id.
c. The May 2019 Minnesota Pool Allocation Order
On May 29, 2019, the Minnesota state court adopted in part and slightly modified
an R&R prepared by the Minnesota CLC (the “Minnesota CLC’s R&R”) regarding the
division of the $118,283,333.33 in attorneys’ fees allocated to the Minnesota common
benefit pool.
First, the court adopted the Minnesota CLC’s “proposed methodology of awarding
each firm that submitted a claim for common benefit time its approved audited lodestar
amount for its common benefit work, as increased by an appropriate multiplier.” Id.,
Vol. 29, at 6711 (Minn. State Ct. Order on Allocation of Minn. Common Benefit Fees,
filed May 30, 2019) (“May 2019 Minnesota Pool Allocation Order”). Second, it
embraced the Minnesota CLC’s “proposed methodology . . . of compensating each firm’s
PFS-related work on the basis of a flat fee for each PFS that was completed and
submitted to Syngenta.” Id. And, third, the court adopted the “assignment of individual
firms to separate tiers, numbered Tiers One through Five.” Id. at 6712.
The court fielded numerous objections to the recommended allocation, including
those raised by Johnson Becker and another appellant in this matter, Shields Law Group
(“Shields”). These objections largely fell into two buckets: (1) complaints that the “flat
fee of $250 per PFS . . . would not adequately compensate . . . for the amount of time . . .
spent preparing PFSs”; and (2) complaints that the Minnesota CLC “unfairly and
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artificially constrained” firms’ compensable lodestar amounts by applying multipliers to
increase the lodestar amounts in Tiers One through Four, but not Tier Five. Id. at 6727–
28, 6734.
With respect to the first set of objections, the court determined that a flat fee rate
of $301.63 per PFS was fair. Regarding the second set, the court “adjusted the
multipliers to be applied to the five tiers of attorneys” so that the final multipliers would
be 2.66 for Tier One, 2.3 for Tier Two, 1.65 for Tier Three, 1.45 for Tier Four, and 1.2
for Tier Five. Id. at 6712, 6741–42.
Johnson Becker raised one additional objection outside these two categories. The
Kansas district court’s December 31, 2018, Fee Allocation Order assigned Johnson
Becker to the Minnesota pool, notwithstanding the fact that it worked in both Minnesota
and Illinois. So, Johnson Becker asked the court to apply a methodology proposed in the
Illinois district court when calculating its award for work done in that jurisdiction.
Indeed, Johnson Becker believed that the proposed Illinois methodology would generate
a larger fee award than it would receive under the Minnesota methodology.
The Minnesota state court was “not persuaded . . . that a different methodology
should apply to [Johnson Becker’s] work performed in Illinois.” Id. at 6739. In that
regard, the court seemed to zero in on the response to Johnson Becker’s request for
clarification before the Kansas Special Master and the Kansas district court during a
December 17, 2018, hearing. At the hearing, Johnson Becker declined to object to the
Kansas district court’s assignment of it to the Minnesota pool. Instead, Johnson Becker
asked the Kansas district court and the Kansas Special Master to clarify that it would be
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compensated for its Illinois work by the Minnesota state court. The Kansas Special
Master confirmed that each court overseeing a common benefit pool would compensate
firms for their work in multiple jurisdictions, at which point Johnson Becker concluded
that it “came . . . to get . . . clarification” and “received it.” Id., Vol. 23, at 5315–16.
Returning to the May 2019 Minnesota Pool Allocation Order, the Minnesota state
court advised that even if Johnson Becker were reassigned to the Illinois pool, the court
was not convinced it stood to recover more under any methodology deployed by the
Illinois district court. Thus, the court declined to award Johnson Becker “additional
compensation beyond that which ha[d] been calculated under the allocation adopted in
[the Minnesota state court’s] order.” Id., Vol. 29, at 6739.
d. The August 2019 Illinois Pool Allocation Order
In December 2018, the Illinois district court appointed a Special Master to issue an
R&R on the division of attorneys’ fees from the Illinois pool. The Illinois Special Master
issued his R&R (the “Illinois Special Master’s R&R”) in March 2019. The Illinois
district court largely rejected the Illinois Special Master’s R&R due to legal and
methodological flaws it saw in the report. On August 19, 2019, the court issued its own
recommended allocations for the attorneys’ fee award provided to the Illinois common
benefit pool.
The court “review[ed] the hours the applicants submitted and ensure[d] they
comport[ed] with the [December 31, 2018,] Fee Allocation Order, common benefit
principles, Johnson factors, and posture of th[e] litigation.” Id., Vol. 29, at 6940 (S.D. Ill.
D. Ct. Mem. and Order, filed Aug. 19, 2019). Relevant to this appeal, the court
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recommended that O’Hanlon, Demerath & Castillo and Demerath Law Office
(collectively “Demerath”) be awarded $780,166.67 in fees, or 1% of the Illinois pool—
half of the 2% allocation recommended by the Illinois Special Master. Though Demerath
“claim[ed] 9,505.5 hours of common benefit work, consisting of 6,060 attorney hours and
3,445.5 non-attorney hours,” the Illinois district court “afford[ed] significantly less
weight to the non-attorney hours and little weight to hours recorded as pre-settlement
communication with clients and assisting clients in perfecting claims,” reductions
warranted (in its view) by Demerath’s limited contribution to the class overall or the
Settlement. Id. at 6944.
Similarly, the court recommended that the Law Offices of Craig Eiland (“Eiland”)
receive a $2,340,500 attorneys’ fee award, or 3% of the Illinois pool—a reduction of one
percentage point from the Illinois Special Master’s recommended allocation. As with
Demerath’s award, the Illinois district court “afford[ed] significantly less weight to the
non-attorney hours and little weight to the hours recorded as pre-settlement
communication with clients (over half of Eiland’s estimated attorney hours) and PFS
work-related hours.” Id. at 6945. Because “the majority of Eiland’s hours consist[ed] of
PFS work, communication with clients, assisting clients with claims, and administrative
work,” the Illinois district court found that a reduction in fees from the Illinois Special
Master’s recommendation was justified. Id.
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e. The Kansas District Court Adopts the Minnesota and Illinois Pool Allocation
Orders
In accordance with its April 2019 Clarification Order, the Kansas district court
reviewed and adopted the Minnesota state court’s May 2019 Minnesota Pool Allocation
Order in July 2019. Later, in November 2019, the Kansas district court reviewed and
adopted the Illinois district court’s August 2019 Illinois Pool Allocation Order.
i. The July 2019 Minnesota Pool Allocation Order
First, on July 16, 2019, the Kansas district court adopted the May 2019 Minnesota
Pool Allocation Order over the objections of Shields and Johnson Becker. Abiding by
the self-imposed discretion guidelines explained in its April 2019 Clarification Order, the
Kansas district court deferred to the Minnesota state court’s allocation decisions and
considered whether any of the objections raised claims of structural or procedural error.
Relevant to these appeals, Shields filed an “objection” but conceded that “it d[id]
not challenge the judgment of the Minnesota court in making [its] allocation” and that its
objection was “more akin to a motion for reconsideration.” Id. at 6870–71 (Kan. D. Ct.
Mem. and Order, filed July 16, 2019) (“July 2019 Minnesota Pool Allocation Order”).
Specifically, Shields asked the court to reconsider its December 31, 2018, Fee Allocation
Order adopting the four-pool allocation structure. Shields maintained that the four-pool
structure “led to inequitable results (which had to occur before it knew to object . . .).”
Id. at 6871. Drawing from the Illinois Special Master’s R&R—which, at that time, the
Illinois district court had not largely rejected—Shields claimed that “certain firms in the
Illinois . . . common benefit pool w[ould] be better compensated . . . based on a
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comparison of the number of corn producers represented by the firms and the number of
common benefit hours claimed.” Id.
The Kansas district court rejected this argument. It noted that Shields’s motion for
reconsideration came “far too late.”19 Id. (citing D. KAN. R. 7.3(b), which imposed a
fourteen-day deadline for filing a motion to reconsider a non-dispositive ruling). The
court acknowledged that Shields did object to the Kansas Special Master’s November
2018 Fee Allocation R&R, upon which the court’s December 31, 2018, Fee Allocation
Order was based. However, Shields merely “argued that the IRPA pool allocation was
insufficient and that PFS work should be adequately compensated across all
jurisdictions.” Id. at 6871 n.2. Notably absent from that objection was its current
contention—that “the four-pool structure itself would lead to inequitable results.” Id.
Put differently, when Shields could have objected to the four-pool structure, it opted to
focus on how best to fill the pools.
Because the allocation process for each pool was “well underway,” the court
found Shields’s “lack of timeliness in making [its] argument . . . prejudicial.” Id. at 6871.
Indeed, as the court observed, the allocation process for the Kansas pool “ha[d] been
completed.” Id. Nor could Shields claim it needed to “‘play the game and see the result’
before it could offer its ‘critique,’” or “liken[] the end results of the allocations to new
19
In full, Rule 7.3(b) provides: “Parties seeking reconsideration of non-
dispositive orders must file a motion within 14 days after the order is filed unless the
court extends the time. A motion to reconsider must be based on: (1) an intervening
change in controlling law; (2) the availability of new evidence; or (3) the need to correct
clear error or prevent manifest injustice.” D. KAN. R. 7.3(b).
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evidence that could justify reconsideration.” Id. Simply put, the court concluded that
Shields “was not permitted to have it both ways”—i.e., “go[ing] along with the Court’s
approach and roll[ing] the dice hoping for a good result, and then complain[ing] about the
approach if ultimately dissatisfied with the outcome.” Id. at 6871–72.
And, in any event, Shields failed in persuading the court that it should not have
adopted the four-pool structure. Shields complained “solely” about the scheme’s
outcome but “ha[d] not explained why the use of the four-pool structure was legally
deficient.” Id. at 6872. Nor had Shields described how the four-pool structure’s use was
inferior to some other method of allocation or why the court’s “reasons . . . for adopting
that method of allocation” were somehow questionable. Id. Accordingly, Shields fell far
short of convincing the court that “it must start all over with a different allocation
methodology.” Id.
Johnson Becker’s objections—which ranged from valuation and pool-assignment
concerns to constitutional due process challenges—were similarly unavailing. Johnson
Becker initially “complain[ed] about the Minnesota court’s valuation of its common
benefit work performed on cases filed in Illinois.” Id. at 6872–73. As with Shields’s
objection, Johnson Becker relied on the (ultimately rejected) analysis advanced in the
Illinois Special Master’s R&R. Based on that analysis, Johnson Becker argued “that it
would receive a much greater fee award for its Illinois common benefit work if [either] it
had been placed in the Illinois pool for purposes of that work or . . . the Minnesota court
had employed the Illinois [S]pecial [M]aster’s methodology in evaluating the Illinois
work.” Id. at 6873. The court overruled this objection “to the extent that Johnson Becker
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argue[d] that the Minnesota court should have applied the Illinois [Special] [M]aster’s
methodology to [its] Illinois work,” instead deferring to the Minnesota court’s judgment
regarding Johnson Becker’s common benefit work.20 Id.
Additionally, the Kansas district court rejected what amounted to a belated motion
for reconsideration by Johnson Becker—i.e., its “argu[ment] that it should have been
placed in both the Minnesota and Illinois pools, with each court allocating fees for work
performed on cases in its jurisdiction.” Id. Not only was this reconsideration request
untimely under Kansas’s Local Rule 7.3(b), but Johnson Becker “effectively abandoned”
it earlier in the post-judgment fee allocation proceedings by not seeking “reconsideration
of the Court’s [prior] decision to assign it only to the Minnesota pool.” Id. at 6875–76.
Abandonment aside, the court also made plain that Johnson Becker, like Shields, failed to
explain “why the Court’s decision to place it in only the Minnesota pool was erroneous,
other than by reference to the [presumed] end result.” Id. at 6876 (emphasis added).
Turning to Johnson Becker’s third objection, which it also advances in this appeal,
the Kansas district court rejected Johnson Becker’s assertion that its assignment to the
Minnesota pool violated its due process rights. For one, Johnson Becker failed to
establish a protected property interest in its fee award of any specific amount or in the
application of a particular methodology. See id. at 6876–77. More than that, Johnson
20
As the Kansas district court noted, Johnson Becker conceded in its
objection that the Minnesota state court’s ruling as to the allocation methodology made
sense based on that court’s unfamiliarity with the Illinois litigation.
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Becker failed to demonstrate that it was the victim of arbitrary decision-making, in large
part because it received adequate process. As the district court explained:
Johnson Becker had multiple opportunities to request placement also in the
Illinois pool, but it abandoned any such request. Johnson Becker was also
afforded ample process with respect to the Minnesota allocation, as it made
multiple submissions to [the] Minnesota CLC prior to its recommendation
and submitted multiple briefs to the Minnesota court before it issued its
allocation order.
Id. at 6877.
In sum, the court observed that Johnson Becker “was . . . afforded ample process
with respect to the Minnesota allocation,” and it also “had multiple opportunities to
request placement . . . in the Illinois pool”—opportunities that it “abandoned.” Id. Thus,
the court rejected Johnson Becker’s objection.21
ii. The November 2019 Illinois Pool Allocation Order
Next, on November 19, 2019, the Kansas district court adopted the August 2019
Illinois Pool Allocation Order over the objections of Demerath and Eiland. Pertinent here
is the district court’s consideration of Demerath’s and Eiland’s objections. Demerath and
Eiland argued that, “despite its previous [April 2019 Clarification] [O]rder,” the Kansas
district court “should not limit the scope of its review of the [August 2019] Illinois [Pool
Allocation] Order to structural and procedural issues, but should instead exercise its own
21
The court also rejected an objection filed by Toups/Coffman, both because
it was untimely, and because Toups/Coffman had “no standing to object to” the Kansas
district court’s adoption of the Minnesota state court’s allocation of the Minnesota pool,
as it “was assigned to the Kansas MDL common benefit pool, and the Minnesota court
therefore did not consider Toups/Coffman’s entitlement to fees.” Joint App., Vol. 29, at
6878.
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judgment.”22 Id., Vol. 32, at 7441 (Kan. D. Ct. Mem. and Order, filed Nov. 19, 2019)
(“November 2019 Illinois Pool Allocation Order”). Given the retirement of Judge
Herndon, who had presided over the Illinois litigation, Demerath and Eiland argued that a
more searching review of the August 2019 Illinois Pool Allocation Order made sense
because the basis of the Kansas district court’s deference—principally, the other court’s
greater familiarity with the litigation in Illinois—was absent. In Demerath’s and Eiland’s
view, that rationale could not be furthered because “Judge Rosenstengel[,] [who replaced
Judge Herndon,] did not preside over the Illinois cases until after the settlement was
complete.” Id.
The Kansas district court rejected this argument, explaining that:
The reassignment to a new judge does not represent a new issue or a changed
circumstance. At the time of this Court’s allocation order on December 31,
2018, Judge Herndon’s retirement was imminent and expected; and at the
time of this Court’s order of April 2, 2019, in which the Court limited
objections to structural and procedural issues, Judge Rosenstengel had
already been presiding over the Illinois cases for nearly three months (and
[the Illinois Special Master] had already issued his R&R). Thus, the
governing framework that includes deference to the Illinois court was
adopted with the understanding that a new Illinois judge would be
determining the allocation from the Illinois pool.
Id. at 7441–42.
In any event, the court declined to alter the “procedure and . . . scope” of its
review of the Illinois district court’s allocation order after the fact. Id. at 7442. The court
recalled that it had adopted a posture of deference not only because the Minnesota state
22
Demerath and Eiland timely joined the objections that another party, Clark,
Love & Hutson, made.
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and Illinois district courts “were better placed to make the allocations,” but also because
such an approach reflected the parties’ understanding as memorialized in the Settlement.
Id. at 7442–43. As the Kansas district court reasoned, Demerath and Eiland “ha[d] not
argued that the procedure and scope of review adopted by the Court violate[d] the law,”
fell “outside of the Court’s discretion in awarding fees,” or was “not a reasonable way to
perform the allocation.” Id. at 7443. Thus, the Kansas district court reviewed only for
procedural and structural errors and declined to consider objections questioning the
Illinois district court’s judgment on each firm’s relative contribution to the settlement
class.
Demerath and Eiland also broadly urged the Kansas district court to reject the
August 2019 Illinois Pool Allocation Order and instead adopt the Illinois Special
Master’s R&R under which they both stood to receive larger fee allocations. However,
the Kansas district court pointed out that neither Demerath nor Eiland “addressed the
Illinois court’s specific reasoning concerning [their] contributions, and thus [had] not
explained how [their] allocation[s] d[id] not fall within the proper judgment of [the
Illinois district] court.” Id. at 7448. The Illinois district court “properly considered the
type of work for which [they] claimed common benefit fees, and [then] applied [the
Kansas district court’s] guidance in affording less weight to non-attorney hours, claims
work, and client communications.” Id. Thus, neither firm “identified a basis to disturb
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the judgment of the Illinois [district] court,” and the Kansas district court, accordingly,
overruled their objections.23 Id.
5. The Kansas District Court’s July 2019 Expense Order
In addition to the orders above, the Kansas district court adopted the Kansas
Special Master’s R&R concerning expense awards. The court did so over the objection
of Byrd and Shields.
a. The Kansas Special Master’s R&R on Expenses
Before the Kansas district court tasked her with recommending an expense
allocation scheme, the Kansas Special Master anticipated that certain expense guidelines
the district court had previously entered were underinclusive. As such, in her November
2018 Fee Allocation R&R she effectively recommended that the Kansas district court
enlarge the definition of “common benefit expenses”—essentially, the costs of litigation
done in furtherance of the ultimate class recovery—to account for the expenditures that
meaningfully contributed to the Settlement. Id., Vol. 21, at 4823–26. No attorney
objected to that portion of her R&R, which the Kansas district court adopted.
Later, in her R&R on expenses, the Kansas Special Master explained that, in the
December 31, 2018, Fee Allocation Order, the Kansas district court “agreed that the
definition of ‘common benefit’ hours and expenses eligible for payment from the
23
As with the July 2019 Minnesota Pool Allocation Order, Toups/Coffman
also filed an objection/motion for reconsideration pertaining to the November 2019
Illinois Pool Allocation Order, which the Kansas district court dismissed for largely the
same reasons outlined in its July 2019 Minnesota Pool Allocation Order.
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common fund . . . should extend beyond the definitions provided under the applicable
Kansas and Minnesota common benefit orders.” Id., Vol. 26, at 6003. So expanded,
“common benefit” expenses would “include items beyond those approved in advance by
leadership under those orders.” Id. Thus, so long as a firm’s work provided a benefit to
the settlement class or contributed to the overall settlement, that work would come under
the umbrella of “common benefit” work and expenses. Id. That said, the Kansas Special
Master clarified that client recruitment efforts or firm overhead costs, such as advertising
expenses, would not be considered common benefit work.
The Kansas Special Master also considered the specific category of expert and
consulting fees. “As a general rule,” she “recommended approval of expenses for
‘experts’ retained by law firm groups who were described as assisting [to get]
information from existing clients . . . to complete PFSs, respond to discovery, fill out opt
out forms from the certified litigation class, or apply for settlement benefits.” Id. at
6016–17. The Kansas Special Master also “generally recommended acceptance of
charges for contract employees, including contract attorneys, who were described as
doing similar work (e.g., assisting with client PFSs or discovery or responding to
telephone inquiries) or were involved in assisting at meetings reported to be with existing
clients.” Id. at 6017. Likewise, the Kansas Special Master generally recommended
acceptance of expenses for “legal and damages experts and experts regarding the
agricultural industry.” Id. However, she “did not . . . recommend acceptance of requests
for reimbursement of hourly rates or salaries for law firm employees who performed such
tasks,” as she “believ[ed] that those costs [were] subsumed in attorneys’ fee awards, and
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should not be reimbursed as expenses.” Id. With these proposed rules in mind, the
Kansas Special Master recommended a total expenses award of $31,297,117.70.
i. Byrd’s Objections
As mentioned, the Kansas district court adopted the Kansas Special Master’s R&R
on expenses over several objections. Among them were certain objections of Byrd,
which bear on the resolution of this appeal. First, Byrd claimed $539,603.02 in expenses,
including $381,903.84 for “Expert/Consulting Fees Not Included in Common Benefit,”
but “the [Kansas] [S]pecial [M]aster . . . recommended a total award to [Byrd] of
$328,305.16, including $194,414.69 for expert/consultant expenses.” Id., Vol. 29, at
6895 (Kan. D. Ct. Mem. and Order, filed July 19, 2019) (“July 2019 Expense Order”).
Byrd “object[ed] . . . to the recommended denial of expert/consultant expenses for paying
29 workers a total of $187,037.11.” Id. at 6895–96. To be sure, Byrd “state[d] that it
d[id] not object to the [Kansas] [S]pecial [M]aster’s methodology, in which she drew [a]
distinction between ‘contract employees’ and ‘law firm employees.’” Id. at 6896.
Rather, Byrd “object[ed] to the characterization of [its] 29 workers as firm employees,”
arguing that “its payments to these workers [were] not properly considered overhead of
the firm.” Id. Specifically, Byrd claimed “that these workers were hired only for the
duration of th[e] [Syngenta] litigation, worked on no other firm matters . . ., had their own
workspace, and were paid an hourly wage without benefits.” Id. Additionally, Byrd
maintained these employees were “not part of the firm’s regular overhead” because “four
other associated firms shared in the cost of paying” them. Id. at 6896–97. However, as
Byrd conceded, “it issued W-2s for these workers (instead of 1099s used for independent
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contractors), based on the level of control the firm exerted over the workers,” arguing that
“such treatment for tax purposes d[id] not mean that these costs [wer]e properly
considered overhead.” Id. at 6897.
Rejecting this argument, the Kansas district court first found the Kansas Special
Master’s “distinction between contract workers and firm employees” to be reasonable
and “proper”—and, in any event, Byrd “d[id] not object to the special master’s
methodology,” which included this distinction. Id. As the Kansas Special Master
explained, she made this distinction because “work by firm employees [was] more
properly considered in the context of an application for reasonable attorney fees.” Id.
Consequently, the “primary consideration” as to the work for which Byrd sought
compensation was “whether [it was] more properly considered as attorney fee work or
[as] an expense.” Id.
Put differently, the distinguishing factor was “whether the firm did the work in-
house, with its own employees, or whether the firm shopped the work out to an outside
party or parties.” Id. Under this framework, “it d[id] not matter whether the workers
were paid hourly or given a salary, or whether they were hired on a temporary or
permanent basis.” Id. In Byrd’s case, the firm “chose to hire . . . workers and pay them
directly as employees, exerting a level of control sufficient to demand treatment as
employees for tax purposes.” Id. As a result, such workers were “reasonably treated as
firm employees and not as contract workers in this context, and any reimbursement for
th[eir] time should have come through the attorney fee award process.” Id. at 6897–98.
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Formal categorization aside, the court observed that Byrd, itself, “described these
workers as having performed specific and other tasks necessary to complete PFSs,” for
which Byrd “ha[d] been awarded attorney fees in the amount of $707,925.61 . . . .” Id. at
6898 n.4 (emphasis added). That PFS-specific attorneys’ fee amount, which was the sum
of thousands of flat-fee-per-PFS awards, “was intended to compensate the firm for all
work performed on those PFSs by firm employees (whether temporary or permanent).”
Id. In short, Byrd had already been compensated for the work of these twenty-nine
employees by way of the PFS-specific percentage of its total attorneys’ fee award.
Accordingly, the court rejected Byrd’s objection to the Kansas Special Master’s
recommendations as to the expense award.24
Separately, Byrd claimed that it did not realize it could seek expenses until after it
reviewed the Kansas Special Master’s R&R on expenses, in which she discussed
allocations for expert fees. For that reason, Byrd sought to amend its application to
account for an additional $31,549.75 in expenses incurred. Exercising its discretionary
powers, the Kansas district court declined to reopen the allocation process for Byrd.
According to the court, “[a]ll applicants” enjoyed “sufficient opportunity” to make
expense requests. Id. at 6898. Byrd, however, failed to explain how it was “misled in
any way” or why it believed it could not seek reimbursement for such costs. Id. Like the
24
The Kansas district court further explained that the majority share of the
new expenses for which Byrd sought compensation comprised payments to temporary
workers whom it described in the same general terms as the twenty-nine workers who
assisted with the PFSs. Byrd did not claim to have paid an external entity for these
workers, and the court classified them as law firm employees—not contract workers. So,
the court compensated their work through the attorney fee award process.
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other firms, Byrd “could have requested any expenses that it desired,” especially since
neither the court nor the Kansas Special Master made any pronouncement that expressly
excluded expenses related to the settlement process. Id. But Byrd “chose not to submit
these expenses.” Id. Thus, the court concluded that it “would be unfair to the integrity of
the process to allow [Byrd] to make a [belated] new claim.” Id. at 6898–99.
ii. Shields’s Objection
Also relevant to this appeal are Shields’s objection and motion to amend; they
fared no better than Byrd’s objections. Shields sought “a claim for $40,053.51 for
telephone charges incurred communicating with clients regarding PFSs and the
settlement claims process,” plus a new “claim for $59,092.08 for payment to certain
contract workers []who worked on PFSs and settlement claims.” Id. at 6899. Shields
“originally included such expenses in its filed application, but it later abandoned and
withdrew [them] in submitting its detailed spreadsheet based on a [purported] ‘mistaken
belief’ that they constituted impermissible ‘overhead’ expenses.” Id.
With respect to the telephone charges, Shields did not explain in its objection why
it initially determined that the charges were properly classified as overhead expenses—or
why that determination was erroneous. As such, the district court declined to reopen the
application process.
Regarding contract worker expenses, Shields explained in its reply brief that it
initially withdrew this expense claim to avoid double-dipping, as it intended to include
the work in its attorney fee application. But, after the Kansas Special Master issued her
R&R on Expenses, Shields “realized that it could have been awarded expenses for its
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contract workers,” without double-dipping, because the Minnesota state court “declined
to award firms their lodestar amount in attorney fees for work on PFSs.” Id. at 6900.
Disallowing this new claim, the Kansas district court noted that Shields
“voluntarily chose to submit this incurred cost in its fee application instead of in its
expense application” despite having “no reason” to believe that an expense award would
preclude charges for contract workers. Id. Put differently, the court explained that
Shields could “not try the other route simply because it [was] unhappy with the result of
the route that it did choose.” Id. And, contrary to Shields’s suggestion, the “specter of
double-dipping remain[ed]” because the court intended that Shields’s fee award for PFS
work—$643,980.05 for 2,135 PFSs—“provide reasonable compensation to [Shields] for
the PFS work that [Shields] submitted in its fee application.” Id. Given Shields’s
voluntary conduct and its attorneys’ fee award, the court “in its discretion decline[d] to
reopen the [expense] process to allow [Shields] to submit [its] new claim.” Id.
6. The Watts Guerra Settlement Agreement
We previously mentioned that Watts Guerra—a party to the instant appeal—exited
this matter after settling its claims against the Appellees (the “Watts Guerra Settlement”).
In December 2020, Watts Guerra and the Appellees moved in Kansas district court for an
indicative ruling pursuant to Rule 62.1 of the Federal Rules of Civil Procedure. Under
the Watts Guerra Settlement, Watts Guerra would receive an additional sum, to be paid
from the fee awards of the other parties to the agreement. By design, the Watts Guerra
Settlement would not affect the fee awards of firms that were not party to the agreement.
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7. The June 2021 IRPA Pool Allocation Order
Rounding out the relevant procedural background for these appeals, most recently,
on June 4, 2021, the Kansas district court adopted the Kansas Special Master’s
recommendation concerning attorneys’ fee awards allocated to the IRPA pool and
entered an order to this effect—again, over objections from Shields and Toups/Coffman.
See Joint Supp. App., Vol. 13, at 3561 (Kan. D. Ct. Mem. and Order, filed June 4, 2021)
(“June 2021 IRPA Pool Allocation Order “).25 The Kansas district court entered its June
2021 IRPA Pool Allocation Order after the appeals were brought before the Tenth
Circuit, and just after oral argument was held on March 10, 2021. We permitted the
Appellants to file limited supplemental briefing in response to this order.26 We now
move on to describe what the Appellants in this case specifically challenge before us.
C. The Current Appeals
The Kansas district court and the parties themselves have largely grouped
Appellant law firms and attorneys and their respective contentions into five pools. They
are:
• “Kansas Appellants”—i.e., Toups/Coffman and Hossley-Embry;
25
In an exercise of our discretion, we take judicial notice of the Kansas
district court’s subsequent proceedings and orders related to the appeals at hand. See,
e.g., United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010).
26
The Panel’s order prohibited the parties from “rais[ing] any challenge to the
district court’s allocation of the IRPA pool itself” and limited the supplemental briefing
“to arguments regarding whether, and to what extent, the [June 2021 IRPA Pool
Allocation Order] . . . affect[ed] the fee allocation issues already briefed by the parties.”
In re Syngenta AG MIR 162 Corn Litig., Nos. 19-3008, et al., Order (entered July 12,
2021) (the “Supplemental Briefing Order”).
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• “Minnesota Appellants”—i.e., Byrd and Shields;27
• “Illinois Appellants”—i.e., Eiland and Demerath;
• Byrd and Shields;28 and
• Johnson Becker.
Appellants in this action have specifically challenged various facets of the Kansas district
court’s orders as to the fee allocation process. At bottom, the following orders are at
issue here: (1) the December 31, 2018, Fee Allocation Order; (2) the March 2019 Kansas
Pool Allocation Order; (3) the July 2019 Minnesota Pool Allocation Order; (4) the
November 2019 Illinois Pool Allocation Order; and (5) the July 2019 Expense Order.
More specifically, Kansas Appellants, Minnesota Appellants, and Johnson Becker
challenge the Kansas district court’s December 31, 2018, Fee Allocation Order.29 Kansas
27
Byrd and Shields together with Watts Guerra previously functioned as the
“Minnesota Appellants.” But, as we have explained above, on January 7, 2021, Watts
Guerra reached a settlement and the Tenth Circuit’s Clerk of Court filed an order
terminating it as an appellant in this case.
28
While also functioning as “Minnesota Appellants” in these appeals, Byrd
and Shields additionally pursue a separate action, bringing a stand-alone appeal related to
expenses and the IRPA pool allocation.
29
Toups/Coffman has filed a notice for virtually every order entered in the
post-judgment proceedings. Toups/Coffman filed its first notice of appeal on January 7,
2019, purportedly challenging the Kansas district court’s Aggregate Fee Order and
corresponding Final Order and Judgment both entered on December 7, 2018. But
Toups/Coffman clarifies that it appeals from those orders “only with respect to their
provisions pertaining to, delineating, and/or affecting the process, procedures, and criteria
for, and the administration of, the allocation and distribution of the attorneys’ fees and
expenses awarded by the Court in this action. Toups/Coffman Plaintiffs’ Counsel and
Toups/Coffman Plaintiffs specifically do not appeal the fairness and/or overall amount of
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Appellants also target the March 2019 Kansas Pool Allocation Order. Proceeding merely
as Byrd and Shields, and not as Minnesota Appellants, Byrd and Shields target the July
2019 Minnesota Pool Allocation Order, which Johnson Becker also appeals.
For their part, Illinois Appellants bring a narrow challenge to the Kansas district
court’s November 2019 Illinois Pool Allocation Order. And, finally, proceeding not as
Minnesota Appellants but as “Byrd and Shields,” Byrd and Shields appeal the Kansas
district court’s July 2019 Expense Order.30
II. Discussion
We begin by assessing our appellate jurisdiction. Once assured of it, we discuss
our scope of review. As the factual background illustrates, many of the appellants failed
to lodge appropriate objections before the Kansas district court. Furthermore, several of
the appellants failed to raise or adequately present arguments in their opening briefs.
Consequently, our waiver and forfeiture doctrines have some bearing on the resolution of
these appeals, and we thus offer a general overview of these preservation doctrines. With
our standard of review and preservation doctrines in mind, we then turn to each party’s
specific appellate issues. Ultimately, we uphold the Kansas district court’s rulings.
the settlement of this action.” Joint App., Vol. 23, at 5394–95 (Notice of Appeal, filed
Jan. 7, 2019).
30
Summing these up, we have numerous notices of appeal filed prior to the
publication of the June 2021 IRPA Fee Allocation Order, and three notices from the
Kansas and Minnesota Appellants filed after that allocation.
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A. Jurisdiction
1. Finality
Because “[f]ederal courts are ‘courts of limited jurisdiction,’ possessing ‘only that
power authorized by Constitution and statute,’” we must ensure we have jurisdiction
before delving into the parties’ arguments. Devon Energy Prod. Co., L.P. v. Mosaic
Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012) (quoting Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)); accord McClendon v. City of
Albuquerque, 630 F.3d 1288, 1292 (10th Cir. 2011) (“The courts of appeals are creations
of Congress and the boundaries of their jurisdiction are staked by statute.”). Due to these
limitations, we “presume[] that a cause lies outside [our] . . . jurisdiction” unless “the
party asserting jurisdiction” carries its “burden of establishing the contrary.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); accord Full Life Hospice, LLC
v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013) (“[B]ecause the jurisdiction of federal
courts is limited, there is a presumption against our jurisdiction, and the party invoking
federal jurisdiction bears the burden of proof.” (quoting Marcus v. Kan. Dep’t of
Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999))). Thus, we must examine our
jurisdiction even when no party raises it. McGeorge v. Cont’l Airlines, Inc., 871 F.2d
952, 953 (10th Cir. 1989); see 1mage Software, Inc. v. Reynolds & Reynolds Co., 459
F.3d 1044, 1048 (10th Cir. 2006) (“Federal courts ‘have an independent obligation to
determine whether subject-matter jurisdiction exists, even in the absence of a challenge
from any party,’ and thus a court may sua sponte raise the question of whether there is
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subject matter jurisdiction ‘at any stage in the litigation.’” (quoting Arbaugh v. Y&H
Corp., 546 U.S. 500, 506, 514 (2006))).
Congress authorized the courts of appeals to hear “appeals from all final decisions
of the district courts of the United States.” 28 U.S.C. § 1291 (emphasis added). But, as
we have narrated, the parties first filed their notices of appeals while the Kansas district
court was still allocating the $503,333,333.33 aggregate attorneys’ fee award granted in
the Aggregate Fee Order and Final Order and Judgment filed on December 7, 2018.
Indeed, the Kansas district court did not complete allocation of the attorneys’ fee award
among the law firms within the four common benefit pools until June 4, 2021, when it
entered the June 2021 IRPA Pool Allocation Order—that is, a few months after we heard
oral argument in this case. So, at this juncture, the question is whether we have
jurisdiction to review appeals from the parties that were filed before the June 2021 IRPA
Pool Allocation Order. Put differently, we ask whether any of the pre-June 2021 appeals
challenge orders that have the requisite finality to be appealable.
To answer this question, we must review what makes a “final decision” final.
Though acknowledging that finality determinations cannot be reduced to “a formula,”
Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964), the Supreme Court has explained
“a [district] court’s decision ordinarily becomes ‘final,’ for purposes of appeal, only upon
completion of the entire case,” Ritzen Grp., Inc. v. Jackson Masonry, --- U.S. ----, 140 S.
Ct. 582, 586 (2020). Determining finality, then, is a functional inquiry: when a district
court has no more to do but “execute the judgment,” we know that the decision it has
entered is final for the purposes of conferring jurisdiction under § 1291. Van
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Cauwenberghe v. Biard, 486 U.S. 517, 521–22 (1988) (quoting Catlin v. United States,
324 U.S. 229, 233 (1945)); accord Gelboim v. Bank of Am. Corp., 574 U.S. 405, 408–09
(2015) (explaining that a final decision is one “by which a district court disassociates
itself from a case” (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995))).
Our own discussions of finality track with these general contours. In McClendon,
we explained that finality, “for purposes of § 1291[,] . . . signal[s] [that] the litigation is
over.” 630 F.3d at 1295. And in D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744
F.2d 1443 (10th Cir. 1984), we explained that § 1291 “require[s] the termination of all
matters as to all parties and causes of action before an appeal may be taken.” Id. at 1444.
In short, Congress’s finality requirement “precludes consideration of decisions that are
subject to revision.” Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 969–70 (10th Cir.
2006) (quoting Behrens v. Pelletier, 516 U.S. 299, 305 (1996)).
That an attorneys’ fee award tends to arise in the context of post-judgment
proceedings is not cause to depart from these well-settled rules. Indeed, courts tend to
treat post-judgment proceedings as standalone litigation units subject to the same finality
rules that apply to prejudgment merits proceedings. See, e.g., Caribbean Mgmt. Grp.,
Inc. v. Erikon LLC, 966 F.3d 35, 40 (1st Cir. 2020) (collecting cases) (“When evaluating
the finality of an order entered after judgment, courts generally treat the post-judgment
proceeding as if it were a lawsuit distinct from the suit that generated the underlying
judgment.”); In re Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994)
(“[A] postjudgment proceeding, for purposes of appeal, must be viewed as a separate
lawsuit from the action which produced the underlying judgment.”); see generally 15B
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Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 3916 (2d
ed.), Westlaw (database updated April 2022) (“Appeal ordinarily should not be available
as to any particular post-judgment proceeding before the trial court has reached its final
disposition. Once the district court has completely disposed of the matter, its decision
should be found final.”). As the Eleventh Circuit helpfully explained,
[I]n postjudgment proceedings, such as attorney fee disputes, the meaning of
a final decision is less clear because the proceedings necessarily follow a
final judgment. Even so, we treat the postjudgment proceeding as a free-
standing litigation, in effect treating the final judgment as the first rather than
the last order in the case. Thus, an order is deemed final if it disposes of all
the issues raised in the motion that initially sparked the postjudgment
proceedings. . . . Only if a postjudgment order is apparently the last order to
be entered in the action is it final and appealable.
Mayer v. Wall St. Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir. 2012) (per curiam)
(alterations, citations, and quotations omitted). While noting that this bright-line rule
cohered with the Supreme Court’s “practical construction of 28 U.S.C. § 1291,” the
Eleventh Circuit also recognized that it promoted the salutary goal of efficient litigation:
“For us to hold otherwise invites litigants to appeal every attorney’s fee order, even if
other requests remain outstanding, resulting in a proliferation of piecemeal or repetitious
appeals.” Id. (emphasis added).
The Sixth Circuit employed a similar rationale in JPMorgan Chase Bank, N.A. v.
Winget, 920 F.3d 1103 (6th Cir. 2019), where it dismissed an appeal of an interim award
of attorneys’ fees made post-judgment because the post-judgment fee proceedings were
ongoing. Id. at 1104. The Winget litigation began with Chase Bank suing Mr. Winget
for millions he owed to it under a credit agreement. See id. After numerous appeals
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dealing with both the merits and issues pertaining to attorneys’ fees, the district court
entered a final amended judgment against Mr. Winget, and the case moved into “post-
judgment proceedings” concerning, inter alia, “what assets Chase can collect, how Chase
can collect those assets, and what those assets are worth.” Id. at 1105. As these
proceedings “dragg[ed] on, Chase periodically ask[ed] the district court for more
attorneys’ fees.” Id. The court granted one of Chase’s motions, and in doing so
highlighted the “interim nature of the award.” Id. Nonetheless, Mr. Winget appealed this
interim award of attorneys’ fees. Id. at 1104.
Observing that district courts “typically resolve[] all attorneys’ fees in a single,
final order” over which an appellate court can exercise jurisdiction, the Sixth Circuit
dismissed Mr. Winget’s appeal because it pertained to “an interim award of attorneys’
fees post-judgment, where the post-judgment proceedings [were] ongoing.” 920 F.3d at
1106–07. In other words, “this award of attorneys’ fees did not end the post-judgment
litigation”; instead, “applying the post-judgment completeness rule” would reveal the
appeal “not [to be] from a final, appealable order.” Id. at 1107. This characterization of
an interim fee award “ma[de] sense” because allowing for such appeals would encourage
the very kind of uneven, inefficient litigation that the finality rule aims to avoid. Id. at
1107–08.31
31
Both the Eleventh Circuit’s reasoning in Mayer and the Sixth Circuit’s
reasoning in Winget—both discussed supra—find some support in caselaw from other
circuit courts. See Autotech Techs. LP v. Integral Rsch. & Dev. Corp., 499 F.3d 737, 745
(7th Cir. 2007) (“[W]e ‘treat the post-judgment proceeding as if it were a free-standing
lawsuit and . . . identify the final decision in the post-judgment proceeding and confine
any further appeal under section 1291 to that decision.’ ‘A postfinal order will be treated
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In practical terms, none of the Appellants challenge the Settlement or the
aggregate fee award of $503 million per se; rather, their appeals all center on the
allocation of that fee award. Indeed, the parties filed most, if not virtually all, of their
notices of appeal with respect to fee allocation orders that were entered during post-
judgment proceedings after the Kansas district court’s December 7, 2018, Final Order
and Judgment and before the June 2021 IRPA Pool Allocation Order, which completed
the fee-award allocation process.
Akin to the appellants in Mayer and Winget, Appellants in this action prolifically
(and in piecemeal fashion) appealed from various fee awards that appeared “final”—in
the sense that they disposed of a particular, discrete issue that the district court was
unlikely to revisit—even though these awards did not, alone or in combination, resolve
the overall fee allocation proceedings writ large. Critically, we conclude that all
proceedings after the Kansas district court’s Aggregate Fee Order and corresponding
Final Order and Judgment constitute one, post-judgment litigation that only concluded
with the filing of the June 2021 IRPA Pool Allocation Order.
as “final” for purposes of section 1291 if it “dispose[s] of all issues raised in the post-
judgment motion.”’” (citations omitted) (first quoting Bogard v. Wright, 159 F.3d 1060,
1062 (7th Cir. 1998); and then quoting JMS Dev. Co. v. Bulk Petroleum Corp., 337 F.3d
822, 825 (7th Cir. 2003))); Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc.,
873 F.2d 1327, 1329 (9th Cir. 1989) (“An order awarding attorney’s fees which does not
fully dispose of the issue of attorney’s fees is not a final, appealable order.”); cf.
Wickersham v. City of Columbia, 221 F. App’x 488, 489 (8th Cir. 2007) (unpublished)
(dismissing appeal for lack of jurisdiction where district court “ha[d] not yet resolved the
apportionment of fees” and this apportionment was more than a mechanical exercise).
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Keeping in mind the persuasive dispositions of our sister circuits in Mayer and
Winget, our jurisdictional inquiry in this case centers on whether there is an order or
judgment that has resolved all outstanding fee issues, which would render the post-
judgment litigation final and appealable. Such an order did not exist before June 2021.
Prior to that, we had orders that only had the effect of continually moving the Kansas
district court toward a final resolution of all outstanding fee issues. That final resolution
did arrive, however, with the IRPA Pool Allocation Order.
Applying our well-established standards and the caselaw discussed supra, we must
necessarily conclude that all appeals challenging the Kansas district court’s various
allocation orders after the Aggregate Fee Order and Final Order and Judgment and before
the June 2021 IRPA Pool Allocation Order were not appeals from final orders as required
for our jurisdictional purposes. In other words, Appellants’ notices of appeal were filed
prematurely, such that at the time when they were filed, we did not have jurisdiction to
review them. But, fortunately for Appellants, that is not the end of the story.
2. Ripening
Notwithstanding this determination, both our caselaw and Rule 4(a)(2) of the
Federal Rules of Appellate Procedure posit that a premature notice of appeal may
“ripen[]” upon the conclusion of the district court proceedings if we have not yet
dismissed the premature appeals. See, e.g., Lewis v. B.F. Goodrich Co., 850 F.2d 641,
645 (10th Cir. 1988) (en banc) (“[W]hen a district court has adjudicated all remaining
outstanding claims before this appellate court acts to dismiss the appeal, we will consider
the appeal on its merits rather than dismiss for lack of jurisdiction . . . .”); see FED. R.
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APP. P. 4(a)(2) (“A notice of appeal filed after the court announces a decision or order—
but before the entry of the judgment or order—is treated as filed on the date of and after
the entry.”); see also Harbert v. Healthcare Servs. Grp., Inc., 391 F.3d 1140, 1146 (10th
Cir. 2004) (noting that, in Lewis, “we held that an otherwise nonfinal decision becomes
final and appealable if the district court adjudicates all remaining claims against all
remaining parties before the appellate court acts to dismiss the appeal on the merits for
lack of jurisdiction”). As all parties have represented, allocation of the IRPA pool was
the only outstanding fee-related action left for the district court to accomplish, and with
its completion, we believe the post-judgment fee proceedings concluded. So, we must
ask whether the June 2021 IRPA Pool Allocation Order ripened the Appellants’
otherwise premature notices of appeal. And, more specifically, whether the June 2021
IRPA Pool Allocation Order ripened the notices of appeal pertaining to the orders that the
Appellants seek to challenge in this matter. For the reasons explicated below, we answer
that inquiry in the affirmative.
The Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage
Insurance Co., 498 U.S. 269 (1991), begins our treatment of this question. There, the
appellant filed its notice of appeal after the district judge orally announced that he would
grant a motion for summary judgment on all claims but before he entered written findings
of fact and conclusions of law. Id. at 271–72. In addressing whether the appellant’s
notice of appeal was “fatally premature,” the Court construed Rule 4(a)(2) to recognize
that the “technical defect of prematurity. . . should not be allowed to extinguish an
otherwise proper appeal” when there is a lack of prejudice. Id. at 273. Consequently, the
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Court held that “Rule 4(a)(2) permits a notice of appeal filed from certain nonfinal
decisions to serve as an effective notice from a subsequently entered final judgment.” Id.
at 274 (emphases added). But just as appeals from “certain” nonfinal decisions fall
within the ambit of Rule 4(a)(2), certain others do not. As the Court put it, “Rule 4(a)(2)
[does not] permit[] a notice of appeal from a clearly interlocutory decision—such as a
discovery ruling or a sanction order under Rule 11 of the Federal Rules of Civil
Procedure—to serve as a notice of appeal from the final judgment.” Id. at 276. With this
limitation in mind, a premature notice of appeal ripens after entry of the final judgment
only when the district court’s decision “would be appealable if immediately followed by
the entry of judgment” because “[i]n these instances, a litigant’s confusion” about the
finality of the decision is “understandable.” Id.As we have recognized, FirsTier’s “discussion about the limits of Rule 4(a)(2) is
open to many different understandings.” In re Woolsey, 696 F.3d 1266, 1271 (10th Cir.
2012). And some of our sister circuits have reached a similar assessment of the case.
See, e.g., Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156, 161 (D.C.
Cir. 2005) (noting that FirsTier’s discussion reflects “a rather imprecise guide for a
jurisdictional rule”). Fortunately, our caselaw issued after FirsTier—and in some
instances expressly interpreting it—has clarified when Rule 4(a)(2) might ripen a
premature notice of appeal.
In reviewing that caselaw, we have noted that ripening occurs so long as the
prematurely appealed order bears “some indicia of finality and is likely to remain
unchanged during subsequent court proceedings.” Elm Ridge Expl. Co., LLC v. Engle,
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721 F.3d 1199, 1209 n.5 (10th Cir. 2013) (quoting Fields v. Okla. State Penitentiary, 511
F.3d 1109, 1111 (10th Cir. 2007) (non-precedential order and judgment) (construing
FirsTier)). Our “indicia of finality” standard traces its roots most prominently to
Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993), where we explained that “to
require the filing of a new notice of appeal” when the appealed-from order lacks
“technical formal finality” but “is likely to remain unchanged in both its form and its
content” would “amount to little more than ‘empty paper shuffling.’” Id. at 778(emphasis added) (quoting Lewis, 850 F.2d at 644).
To be sure, Hinton did not expressly mention FirsTier—even though it was issued
after FirsTier. See Hinton, 997 F.2d at 778. Nevertheless, Hinton’s interpretation of
ripening principles appears to be congruent with FirsTier’s. And, as we explained in In
re Woolsey, Hinton’s interpretation is binding on us. See In re Woolsey, 696 F.3d at
1271. Applying Hinton’s standard—that “a premature notice of appeal retains its validity
only when the order appealed from is likely to remain unchanged in both its form and its
content”—to the double-layered interlocutory bankruptcy appeal at issue in In re
Woolsey, we concluded that a prematurely appealed district court order was “amenable to
appellate review” where “the bankruptcy court could not undo [it] later” and “it
resolve[d] the only appealed issue to arise out of the [since] concluded bankruptcy
proceedings and so could not be changed in any event.” Id. (quoting Hinton, 997 F.2d at
778).
Our decision in B. Willis, C.P.A., Inc. v. BNSF Railway Corp., 531 F.3d 1282(10th Cir. 2008) also offers instructive guidance. In Willis, the district court dismissed
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most of the plaintiff-appellant’s claims, and, approximately six months later, it granted
two of three defendants summary judgment on the remaining claim. See id. at 1295. A
third defendant did not move for summary judgment, so the plaintiff-appellant retained
one claim. See id. Following the district court’s summary judgment order—but before
the district court entered a final, appealable order (as the plaintiff-appellant’s remaining
claim against the third defendant was still pending)—the plaintiff-appellant filed its
notice of appeal. See id. This third defendant subsequently moved for summary
judgment, which the district court granted. See id. On that same day, the district court
also entered a judgment “terminating th[e] matter.” Id.Denying the defendant-appellees’ motion to dismiss the premature appeal for lack
of jurisdiction, we concluded that the district court’s “final decision . . . ripened [the
plaintiff-appellant’s] prematurely filed notice of appeal.” Id. (emphasis added).
Specifically, we found that we have jurisdiction to “consider an appeal from the district
court’s [initial summary judgment] order, which was the decision named in the
prematurely filed notice of appeal.” Id. As well, because the plaintiff-appellant’s notice
also referred to the district court’s “prior orders,” we were satisfied that we also had
jurisdiction to review those earlier decisions. Id. at 1295–96. Though Willis did not
expressly employ the “indicia of finality” standard that we embrace here, its treatment of
the notice of appeal there accords with that standard—where the initial summary
judgment order from which appeal was prematurely taken in Willis was unlikely to
change in both its “form and . . . content,” Hinton, 997 F.2d at 778. See Willis, 531 F.3d
at 1295–96.
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Under Hinton’s “indicia of finality” principle, the premature notices at issue here
have ripened, because all the nonfinal orders the parties appealed from either were
recognized as final by the district court or otherwise bore sufficient indicia of finality.
More specifically, the “indicia of finality” was evidenced through the district court’s
adoption of certain reports and recommendations over objections, the court’s express
language awarding certain fees, and the court’s post-award clarification orders and other
orders declining reconsideration. See, e.g., Joint App., Vol. 22, at 5111–21 (the
December 2018 Fee Allocation Order) (awarding fees in the amount of one-third of the
settlement fund after considerable briefing); id., Vol. 25, at 5874–75 (March 2019 Kansas
Pool Allocation Order) (adopting the Kansas CLC’s proposed allocations over objections
and ordering that “fees are hereby awarded to particular attorneys”); id., Vol. 26, at 5925
(April 2019 Clarification Order) (“There is no requirement that the Court’s final
allocation rulings be contained in a single order. The Court has already issued its final
allocation order for the Kansas MDL common benefit pool. The court will issue its other
allocation orders—for the Minnesota common benefit pool, the Illinois common benefit
pool, the IRPA pool, and expenses—. . . as completed. It will then be up to interested
parties to prosecute appeals when and how they see fit.” (emphases added)); id., Vol. 29,
at 6864–79 (July 2019 Minnesota Pool Allocation Order) (adopting the Minnesota state
court’s allocation order over objections and ordering that “the Minnesota state court
common benefit pool of attorney fees shall be allocated and fees are hereby awarded”);
id., at 6898 (July 2019 Expense Order) (declining to “reopen the expense application
process to allow a new claim”); id., Vol. 32, at 7449–51 (the November 2019 Illinois
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Pool Allocation Order) (expressly declining to reconsider prior fee allocation orders in
the district court’s order allocating the Illinois common benefit pool); cf. Case No. 2:14-
md-02591-JWL-JPO, Doc. 4499, at 3–12 (Kan. D. Ct. Mem. and Order, filed Dec. 2,
2020) (finding the district court lacked jurisdiction to rule on a motion to reconsider prior
fee allocation rulings, but concluding, in the alternative, that “[t]here [was] no basis for . .
. reconsideration” of prior fee orders).
These actions by the district court and the surrounding circumstances make clear
that it would be reasonable for the litigants to believe that the decisions were final. See
FirsTier, 498 U.S. at 276. Or, put differently, the text and context of the “order[s]
appealed from” underscore that they were “likely to remain unchanged in both [their]
form and [their] content” at the time they were appealed. Hinton, 997 F.2d at 778. The
June 2021 IRPA Pool Allocation Order simply brought the fee allocation process to a
completion; it did not disturb the myriad common benefit pool allocation orders at issue
here. Cf. In re Woolsey, 696 F.3d at 1271 (finding Hinton’s test satisfied “where, as here,
the appealed order from the district court . . . resolves the only outstanding issue in what
has, by the time it reaches us, become an otherwise completed bankruptcy proceeding”).
Pursuant to ripening, then, we have jurisdiction over all challenges brought by
Appellants, except any challenges the parties may raise to the IRPA pool allocation order
itself. Such challenges to the IRPA pool allocation order would post-date the premature
(ripened) notices of appeal. See Willis, 531 F.3d at 1295–96.32
32
In Willis, we concluded that the plaintiff-appellant’s premature notice was
insufficient for us to exercise appellate jurisdiction over the district court’s final
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Thus, in light of the foregoing, the notices of appeal filed by Appellants before the
June 2021 IRPA Pool Allocation Order are sufficient to confer jurisdiction over
Appellants’ challenges here to orders published and articulated between December 7,
2018—the day the Kansas district court entered its Aggregate Fee Award and
corresponding Final Order and Judgment—and June 4, 2021, when it issued its June 2021
IRPA Fee Allocation Order.
B. Standard of Review
“We review a district court’s attorneys’ fees award for abuse of discretion,”
though “[i]n doing so, we review the district court’s application of legal principles de
novo, and we review the district court’s findings of fact for clear error.” Schell v. OXY
USA Inc., 814 F.3d 1107, 1126 (10th Cir. 2016) (quoting ClearOne Commc’ns, Inc. v.
judgment. See 531 F.3d at 1296 (“[Plaintiff’s] prematurely filed notice of appeal,
however, was not sufficient to give this court jurisdiction to consider an appeal from the
district court’s final judgment.”). To review this final judgment, which postdated the
premature notice of appeal, the plaintiff-appellant needed to timely file a second notice of
appeal. See id. Though the plaintiff-appellant failed to do so, we treated its “amended
docketing statement, filed . . . on February 9, 2006, after the district court’s final decision,
as the ‘functional equivalent’ of a second notice of appeal” and concluded we had
jurisdiction to review an appeal of this final decision as well. Id. (quoting Smith v. Barry,
502 U.S. 244, 245, 248–49 (1992)). Applying Willis’s framework to this case, to appeal
the district court’s June 2021 IRPA Pool Allocation Order, Appellants needed to have
filed additional notices of appeal as to that order—as their prior notices would not bring
this later-filed order within the ambit of our jurisdiction. See id.; see also Nolan v. U.S.
Dep’t of Just., 973 F.2d 843, 846 (10th Cir. 1992) (“We have never held . . . that the
filing of a final order serves to ripen not only the previous premature appeal but also any
subsequent appeals arising out of the same case.”). The Kansas and Minnesota
Appellants filed notices of appeal challenging the June 2021 IRPA Pool Allocation
Order. However, the merits issues in the appeals now before us focus exclusively on the
Kansas district court’s orders before June 2021, and we have abated the appeals filed
with respect to the court’s June 2021 IRPA Pool Allocation Order pending our resolution
of these appeals.
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Biamp Sys., 653 F.3d 1163, 1184 (10th Cir. 2011)); see also First Am. Title Ins. Co. v.
Nw. Title Ins. Agency, 906 F.3d 884, 900 (10th Cir. 2018) (“‘Generally speaking, we
review the decision to award attorney fees, and the amount awarded, for abuse of
discretion,’ though any legal analysis underlying the award is reviewed de novo.”
(quoting Xlear, Inc. v. Focus Nutrition, LLC, 893 F.3d 1227, 1233 (10th Cir. 2018)));
Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998) (“[A]n
attorneys’ fee award by the district court will be upset on appeal only if it represents an
abuse of discretion.” (alteration in original) (quoting Mares v. Credit Bureau of Raton,
801 F.2d 1197, 1201 (10th Cir. 1986))); see also Law v. Nat’l Collegiate Athletic Ass’n, 4
F. App’x 749, 751 (10th Cir. 2001) (unpublished) (“In class actions, the district court has
broad authority over awards of attorneys’ fees; therefore, our review is for an abuse of
discretion.” (quoting In re FPI/Agretech Sec. Litig., 105 F.3d 469, 472 (9th Cir. 1997))).
The watchword of our abuse-of-discretion review is deference. See O’Connor v. R.F.
Lafferty & Co., 965 F.2d 893, 903 (10th Cir. 1992) (“We give deference to a district
court’s decision regarding attorneys’ fees. . . . [and] only overturn these decisions where
the district court abuses its discretion.”).
It has been said on countless occasions that this deference stems from a
recognition of the district (i.e., trial) court’s “superior understanding of the litigation and
the desirability of avoiding frequent appellate review of what essentially are factual
matters.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also Zisumbo v. Ogden
Reg’l Med. Ctr., 801 F.3d 1185, 1207 (10th Cir. 2015) (“Because the district court ‘is in a
better position than an appellate court to determine the amount of effort expended and the
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value of the attorney’s services,’ we review an attorney’s fee award for abuse of
discretion.” (quoting Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1176
(10th Cir. 2010))); Anchondo v. Anderson, Crenshaw & Assocs., L.L.C., 616 F.3d 1098,
1104 (10th Cir. 2010) (noting that we “owe[] much deference” to a district court’s
“uniquely informed on-the-spot” attorneys’ fee decisions); McInnis v. Fairfield Cmtys.,
Inc., 458 F.3d 1129, 1148 (10th Cir. 2006) (“[U]ltimately ‘an appellate court plays [only]
a “limited role” in reviewing a district court’s award of attorneys’ fees and costs, and
deference is given to a district court’s judgment on the matter, since the court is in a
better position to assess the course of litigation and quality of work.’” (second alteration
in original) (quoting Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 773–
74 (10th Cir. 1999))); Case, 157 F.3d at 1249 (“‘We customarily defer to the District
Court’s judgment because an appellate court is not well suited to assess the course of
litigation and the quality of counsel.’ The district court ‘saw “the attorneys’ work first
hand,”’ and ‘“has far better means of knowing what is just and reasonable than an
appellate court.”’” (first quoting Mares, 801 F.2d at 1200–01; and then quoting Poolaw v.
City of Anadarko, 738 F.2d 364, 368 (10th Cir. 1984); and then quoting Mares, 801 F.2d
at 1201)); Brown v. Phillips Petroleum Co., 838 F.2d 451, 453 (10th Cir. 1988) (“An
award of attorneys’ fees is a matter uniquely within the discretion of the trial judge who
‘has intimate knowledge of the efforts expended and the value of the services rendered.’ .
. . [The district court’s] experience with and knowledge about the course of the litigation
compels appellate court deference to [its] determination in the absence of an abuse of
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discretion.” (quoting United States v. Anglin & Stevenson, 145 F.2d 622, 630 (10th Cir.
1944))).
In deferring to the district court’s decision-making, we recognize that they “need
not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S.
826, 838 (2011). Rather than “achieve auditing perfection,” a trial court need only “do
rough justice” in determining a fee award. Id. Thus, “[w]e can hardly think of a sphere
of judicial decisionmaking in which appellate micromanagement has less to recommend
it.” Id. Accordingly, “we have long understood [our abuse-of-discretion standard] to
mean that we will reverse a district court’s determination only if the court exceeded the
bounds of the rationally available choices given the facts and the applicable law in the
case at hand.” Big Sky Network Can., Ltd. v. Sichuan Provincial Gov’t, 533 F.3d 1183,
1186 (10th Cir. 2008); see also Latham v. First Marine Ins. Co., 16 F. App’x 834, 837
(10th Cir. 2001) (unpublished) (“Under the abuse of discretion standard, our task is not to
independently assess the merits of each attorney’s performance and fine-tune individual
fee awards. Instead, our job is to determine whether the district court ‘made a clear error
of judgment or exceeded the bounds of permissible choice in the circumstances.’”
(quoting Cummins v. Campbell, 44 F.3d 847, 854 (10th Cir. 1994))). “That is to say, we
recognize that in many cases there will not necessarily be a single right answer, but a
range of possible outcomes the facts and law at issue can fairly support.” Big Sky
Network, 533 F.3d at 1186. So, “rather than pick and choose among them ourselves, we
will defer to the district court’s judgment so long as it falls within the realm of these
rationally available choices.” Id.85
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In the attorneys’ fee context, this generally means “we consider whether the
district court’s determination appears reasonable in light of the complexity of the case,
the number of strategies pursued, and the responses necessitated by the other party’s
maneuvering,” but we “do not require the district court to identify and justify every hour
allowed or disallowed.” Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 886
F.3d 863, 873 (10th Cir. 2018).
Even if we find a legal error, we will only reverse and remand if the error
prejudiced the party’s substantial rights.33 See Polys v. Trans-Colo. Airlines, Inc., 941
F.2d 1404, 1407 (10th Cir. 1991) (applying the harmless error measurement to the abuse
of discretion standard where district court excluded evidence from trial); United States v.
Wright, 826 F.2d 938, 943 (10th Cir. 1987) (“An abuse of discretion[] does not require
reversal if that abuse amounted to harmless error.”); see also McInnis, 458 F.3d at 1142(“Even assuming the district court abused its discretion in excluding evidence, we must
also determine whether the exclusion was harmless error because ‘we will not set aside a
jury verdict unless the error prejudicially affects a substantial right of a party.’” (quoting
Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253 (10th Cir. 2005))); McCombs v.
Meijer, Inc., 395 F.3d 346, 358–60 (6th Cir. 2005) (explaining that “[w]e review an
award of attorneys’ fees under the same standard as evidentiary determinations and will
33
“An error affecting a substantial right of a party is an error which had a
‘substantial influence’ or which leaves one in ‘grave doubt’ as to whether it had such an
effect on the outcome.” McInnis, 458 F.3d at 1142 (quoting United States v. Sarracino,
340 F.3d 1148, 1171 (10th Cir. 2003)).
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therefore ‘usually sustain a district court’s award and division of attorneys’ fees absent an
abuse of discretion’” and stating, in a separate section, that we “should only reverse when
‘such abuse of discretion has caused more than harmless error’” (emphasis added) (first
quoting Dean v. Holiday Inns, Inc., 860 F.2d 670, 672 (6th Cir. 1988); and then quoting
Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994))).
That is, courts only reverse and remand in circumstances where they cannot
conclude that the error was harmless. See Pinkham v. Camex, Inc., 84 F.3d 292, 294–95
(8th Cir. 1996) (noting that the district court’s incorrect inclusion of certain expenses in
the overall attorneys’ fees award under 28 U.S.C. § 1920(4) was harmless error because
those expenses could nevertheless have been included and awarded as reasonable
attorneys’ fees); Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1253–54 (11th Cir. 2020)
(concurring with Keil v. Lopez, 862 F.3d 685 (8th Cir. 2017), and applying harmless error
doctrine to a district court’s Rule 23(h) error initially deemed to be an abuse of
discretion); Keil, 862 F.3d at 705 (as to a Rule 23(h) violation, concluding that “the error
is harmless because there is no reasonable probability that it affected the outcome of the
proceeding”); see also United States v. Resendiz-Patino, 420 F.3d 1177, 1181 (10th Cir.
2005) (“A harmless error is one that does not have a substantial influence on the outcome
of the trial; nor does it leave one in grave doubt as to whether it had such effect.”
(quoting United States v. Jones, 44 F.3d 860, 873 (10th Cir. 1995))).
C. Waiver and Forfeiture Framework
In this case, several of the appellants repeatedly missed opportunities to object or,
in some instances, unambiguously declined to object. Elsewhere, several of the
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appellants failed to raise or adequately present arguments in their opening briefs.
Whether achieved by neglect or design, these issues implicate our preservation doctrines.
From a ten-thousand-foot view, there are two species of preservation issues that
arise from a litigant’s conduct in the trial court: forfeiture and waiver. Typically, the
former is thought of as the product of inadvertence or ignorance of a legal issue. See,
e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (explaining that
“if the theory simply wasn’t raised before the district court, we usually hold it forfeited”);
United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008) (“[F]orfeiture comes
about through neglect.” (quoting United States v. Carrasco-Salazar, 494 F.3d 1270, 1272
(10th Cir. 2007))); Carrasco-Salazar, 494 F.3d at 1272 (noting that “forfeiture is the
failure to make the timely assertion of a right” (quoting United States v. Olano, 507 U.S.
725, 733 (1993))).
Meanwhile, the latter (i.e., waiver) is viewed as the product of intentional
conduct—with the party charged with knowledge or awareness of the legal issue later
raised on appeal. See, e.g., United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012)
(“We typically find waiver [as opposed to forfeiture] in cases where a party has invited
the error that it now seeks to challenge, or where a party attempts to reassert an argument
that it previously raised and abandoned below.” (alteration and emphasis in original)
(quoting Zubia-Torres, 550 F.3d at 1205)); Carrasco-Salazar, 494 F.3d at 1273 (“There
can be no clearer ‘intentional relinquishment or abandonment of a known right’ than
when the court brings the defendant’s prior objection to his attention, asks whether it has
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been resolved, and the defendant affirmatively indicates that it has.” (citation omitted)
(quoting Olano, 507 U.S. at 733)).
Ordinarily, a litigant who has forfeited an issue before the district court may only
secure review under “our rigorous plain-error test.” United States v. Leffler, 942 F.3d
1192, 1196 (10th Cir. 2019); see, e.g., United States v. Ibarra-Diaz, 805 F.3d 908, 916
(10th Cir. 2015) (“We generally review an asserted ground for reversal that a party fails
to present in the district court under the ‘rigorous plain-error standard.’” (quoting United
States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011))); United States v. Kimler, 335
F.3d 1132, 1141 (10th Cir. 2003) (“Under this standard, [the litigant] ‘must show: (1) an
error, (2) that is plain, which means clear or obvious under current law, and (3) that
affects substantial rights. If he satisfies these criteria, this Court may exercise discretion
to correct the error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’” (quoting United States v. Scull, 321 F.3d 1270, 1277 (10th Cir.
2003))). But the consequences of waiver are typically even more severe: when a litigant
has “waived a right,” the litigant is “not entitled to appellate relief.” United States v.
Teague, 443 F.3d 1310, 1314 (10th Cir. 2006) (emphasis omitted); see also United States
v. Egli, 13 F.4th 1139, 1144 (10th Cir. 2021) (“[W]aiver is a harsher doctrine: a party that
has waived an issue is precluded entirely from appellate relief.”).
Notably, our precedent establishes that where a litigant forfeited a legal issue in
the trial court and, at no point on appeal, invokes and advocates for the issue under our
plain error rubric, the litigant “effectively waive[s]” the issue. Fish v. Kobach, 840 F.3d
710, 729–30 (10th Cir. 2016). That is, the litigant must face the more severe
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consequences of an outright waiver—they lose their right to any review at all. See Rocky
Mountain Wild, Inc. v. U.S. Forest Serv., 56 F.4th 913, 926 (10th Cir. 2022) (declining to
consider an issue where litigant “waived it by not arguing for plain-error review after
forfeiting it”); Richison, 634 F.3d at 1131 (“[T]he failure to argue for plain error and its
application on appeal . . . surely marks the end of the road for an argument for reversal
not first presented to the district court.”).
While our discussion of our preservation doctrine has thus far centered on a
litigant’s conduct in district court, one also may waive appellate review of an issue by not
arguing it—or arguing it in an inadequate manner—in one’s opening brief. See Sawyers
v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (concluding that appellants “waived an
argument” “[d]ue to their inadequate briefing”); Bishop v. Smith, 760 F.3d 1070, 1095
(10th Cir. 2014) (“Waiver through appellate-briefing omission . . . [is an] admittedly
distinct failure[] of preservation.”); Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263,
1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or
waived.” (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205
(10th Cir. 1997))); United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) (“This
briefing-waiver rule applies equally to arguments that are ‘inadequately presented’ in an
opening brief[,]” including those presented “in a perfunctory manner.” (first quoting
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007); and then quoting United
States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004))); Leffler, 942 F.3d at 1197
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(noting that we typically “do not consider arguments made for the first time on appeal in
an appellant’s reply brief and deem those arguments waived”).34
Our preservation rules thus operate as “part of the ‘winnowing process’ of
litigation that permits a court to ‘narrow what remains to be decided.’” Walker, 918 F.3d
at 1151 (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008)). In that
vein—and because the Court of Appeals is not a “‘second-shot’ forum . . . where
secondary, back-up theories may be mounted for the first time”—they promote fairness
in the administration of justice. Tele-Commc’ns., Inc. v. Comm’r, 104 F.3d 1229, 1233
(10th Cir. 1997); see also 9B Charles Alan Wright & Arthur R. Miller, FEDERAL
34
To be sure, we have sometimes invoked the language of forfeiture to
describe the loss of the right to appellate review resulting from inadequate briefing of an
argument. See, e.g., Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (noting
that the “omission of an issue in an opening brief generally forfeits appellate
consideration of that issue” (quoting Bronson, 500 F.3d at 1104)); Bronson, 500 F.3d
at 1104 (same). However, as we have recognized before, our use of the terms “waiver”
and “forfeiture” and linguistic variants thereof have sometimes suffered from a lack of
precision. See Richison, 634 F.3d at 1128 (“[A]s we’ve noted previously, this court’s
cases haven’t always been so precise in distinguishing between waiver and forfeiture.”);
see also Zubia-Torres, 550 F.3d at 1205 (noting that “there is some uncertainty in our
cases regarding the difference between waiver and forfeiture”). However, we have
consistently applied the consequences associated with waiver—i.e., the loss of the right
to any review at all—in instances where appellants have either omitted arguments or
presented them inadequately in their opening briefs. See Strain v. Regalado, 977 F.3d
984, 995 (10th Cir. 2020) (declining to consider an appellant’s “conclusory” argument
and deeming it “waived”); Sawyers, 962 F.3d at 1286 (“Due to their inadequate briefing,
the [appellants] have waived an argument that the district court erred.”); Walker, 918
F.3d at 1151 (concluding that the government “waived its challenge . . . through
inadequate briefing” and declining to exercise review over its argument). This specific,
briefing-waiver rule—like all of our preservation rules—“protects us from issuing ‘an
improvident or ill-advised opinion’ because we did not have the benefit of the adversarial
process.” Leffler, 942 F.3d at 1197–98 (quoting Hill v. Kemp, 478 F.3d 1236, 1251 (10th
Cir. 2007)).
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PRACTICE & PROCEDURE § 2472 (3d ed.), Westlaw (database updated April 2022) (noting
that preservation doctrines ensure “the orderly administration of civil justice”).
These virtues notwithstanding, our preservation doctrines function not as absolute
constraints on our power to review but, rather, more like prudential norms. That is,
“whether issues should be deemed waived is a matter of discretion.” Walker, 918 F.3d
at 1153; see Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“[T]he decision
regarding what issues are appropriate to entertain on appeal in instances of lack of
preservation is discretionary.”). We are especially disinclined, however, to exercise our
discretion in favor of review with respect to waived issues of a constitutional stature, as
“[i]t is a well-established principle governing the prudent exercise of th[e] [c]ourt’s
jurisdiction that normally the [c]ourt will not decide a constitutional question if there is
some other ground upon which to dispose of the case.” Nw. Austin Mun. Util. Dist. No.
One v. Holder, 557 U.S. 193, 205 (2009) (first alteration in original) (quoting Escambia
Cnty. v. McMillan, 466 U.S. 48, 51 (1984)).
D. Kansas Appellants
Kansas Appellants target the Kansas district court’s December 31, 2018, Fee
Allocation Order and March 2019 Kansas Pool Allocation Order. They assert three
issues on appeal:
(1) “Did the [Kansas] district court err by abrogating [Kansas
Appellants’] contingent-fee contracts without ensuring that they will
receive equivalent compensation—or at least their lodestars—from
the $503.33 million fee award?” Kan. Aplts.’ Opening Br. at 3–4.
(2) “Did the [Kansas] district court err by arbitrarily awarding certain
counsel lodestar multipliers of three or more in this megafund case, at
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the expense of individually retained counsel—including [Kansas
Appellants]—who received but a fraction of their lodestars?” Id. at 5.
(3) “Did the [Kansas] district court abuse its discretion by implementing
a[] . . . three-court four-pool scheme of allocating attorneys’ fees that
has resulted in an inequitable fee allocation with insufficient funds
allocated to the IRPA Pool?” Id. at 4.
We address each stated issue below.
1. Effective Waiver
As a preliminary matter, certain of Kansas Appellants’ arguments are likely
effectively waived by Kansas Appellants’ forfeiture at the trial-court level and
subsequent failure to argue plain error before us. See Richison, 634 F.3d at 1131 (“[T]he
failure to argue for plain error and its application on appeal . . . surely marks the end of
the road for an argument for reversal not first presented to the district court.”).
Specifically, Kansas Appellants likely effectively waived their argument that the district
court erred by abrogating their contingent-fee contracts. Moreover, insofar as
Toups/Coffman argues that the IRPA pool, itself, was underfunded, those arguments are
also likely effectively waived.
First, recall that the Kansas district court issued the following pronouncements
when largely adopting the Kansas Special Master’s November 2018 Fee Allocation
R&R:
The Court agrees that an award of fees from the settlement fund to both
attorneys who performed common benefit work and attorneys who filed
individual cases is permitted under Tenth Circuit law. No attorney has
argued, either in applying for fees or in objecting to the [November 2018 Fee
Allocation] R&R, that the Court may not adopt such an approach.
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The [Kansas] [S]pecial [M]aster also recommends that the Court effectively
modify individual contingent fee contracts relating to this litigation to limit
any contingent recovery by attorneys to the fees awarded and allocated by
the Court in this order. After a thorough discussion of the law, the [Kansas
Special] [M]aster concludes that the Court has the authority to impose such
a limitation. Significantly, although Watts Guerra and a few other attorney
applicants questioned whether the Court has such authority in their briefs in
support of their fee applications, no attorney has objected to this conclusion
in the [November 2018 Fee Allocation] R&R.
Joint App., Vol. 23, at 5352–53 (emphases added) (footnote omitted) (citation omitted);
see also id. at 5353 n.3 (noting that Watts Guerra, in a single footnote, took issue with the
Kansas Special Master’s “conclusion that federal law governs whether the Court may
exercise its inherent authority to modify contingent fee contracts” but that it did not
“directly argue in the objection . . . that th[e] Court lack[ed] the necessary authority”).
As the above-quoted portion of the Kansas district court’s December 31, 2019, Fee
Allocation Order reflects, neither of the Kansas Appellants took direct issue with the
Kansas Special Master’s conclusion that the district court possessed the authority to
modify the contingent fee contracts. For its part, Hossley-Embry explicitly conceded that
courts “have given themselves the authority to change the terms of contingency fee
agreements” and argued only that they “should not do so lightly, or on an arbitrary basis.”
Id., Vol. 21, at 4877. And Toups/Coffman limited its objections to the district court’s
decision to disburse fee awards using a two-stage approach, wherein funds are allocated
to the specific pools and then disbursed to individual lawyers and law firms, as opposed
to the “single-stage approach” endorsed by Toups/Coffman that would allocate funds to
pools only “after the claimants’ recoveries are determined.” Id., Vol. 23, at 5358.
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Regarding the Kansas district court’s overall allocation to the IRPA pool,
Toups/Coffman “d[id] not take issue with any other recommendation” in the November
2018 Fee Allocation R&R, apparently because it “c[ould] [not] know whether it objects
to its ultimate award of fees until that award has been determined.” Id. at 5359 n.7.
Later, Toups/Coffman explicitly disclaimed any objection regarding “the amount of
money that [the Kansas Special Master] put in all three of the jurisdictions”—even
though the allocations to specific pools conceivably could bear on the amount of money
Toups/Coffman could recover from the IRPA pool—and even commended her for
“d[oing] a very good job.” Id. at 5283:16–19 (Tr. of Att’y Fee Allocation Hr’g, dated
Dec. 17, 2018).
It seems likely that Kansas Appellants did not fully appreciate their objection
opportunities.35 And, because neglect more appropriately implicates our forfeiture
doctrine, we look to see whether they argued for plain error. See Richison, 634 F.3d
at 1131. They did not. See generally Kan. Aplts.’ Opening Br.; Kan. Aplts.’ Reply Br.
Generally, that would be “the end of the road” and we would decline to review their
35
That said, it is not lost on us that Kansas Appellants could have
intentionally decided not to press certain arguments before the district court—especially
as they relate to the court’s authority to modify contingent-fee agreements, employ
common fund doctrine principles, and allocate nearly 90% of funds to the common
benefit pools—because they were either content to have other firms do the work or hoped
the allocation process would result in a more favorable recovery. See Egli, 13 F.4th
at 1144 (noting that waiver-through-abandonment “occurs when a party deliberately
considers an issue and makes an intentional decision to forgo it” (quoting United States v.
Malone, 937 F.3d 1325, 1327 (10th Cir. 2019))); see also Freytag v. Comm’r, 501 U.S.
868, 895 (1991) (Scalia, J., concurring) (discussing the “strategic” reasons a party might
“pursue a certain course” and later claim error).
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arguments. See Richison, 634 F.3d at 1131. Nevertheless, in an exercise of our
discretion, we elect not to rest our decision as to these arguments exclusively on this
preservation ground. See Walker, 918 F.3d at 1153 (noting that “whether issues should
be deemed waived is a matter of discretion”).
2. The Contingent-Fee Contracts
On the merits, then, Kansas Appellants first contend that the Kansas district court
erred in abrogating their “valid and enforceable attorney-client contingent-fee contracts
without first inquiring into whether their specific terms were unreasonable . . . or
ensuring that individual plaintiffs’ counsel received equivalent compensation, or at least
their lodestars.” Kan. Aplts.’ Opening Br. at 36; see also Toups/Coffman Suppl. Br. at 2
(arguing that the district court “improperly abrogat[ed] Toups/Coffman’s contingent-fee
client contracts”).36
We conclude, however, that the district court’s inherent power to review
contingent-fee contracts—together with both Rule 23(h) of the Federal Rules of Civil
Procedure and the Settlement—vested the court with ample authority to modify the
contingent-fee contracts at issue here. Because the district court exercised that authority
reasonably, we affirm.
a. The Nature and Scope of the District Court’s Authority to Modify
Contingent-Fee Contracts in the Class Action Context
36
In its supplemental briefing, Hossley-Embry “adopt[ed] and incorporate[d]
by reference” Toups/Coffman’s supplemental brief. Hossley-Embry Suppl. Br. at 2.
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We begin our analysis with whether the district court had inherent authority to
modify the contingent-fee contracts at issue here. Our caselaw regarding the court’s
authority to review and modify contingent-fee agreements has developed piecemeal, but
it nevertheless confirms the district court’s approach. See Garrick v. Weaver, 888 F.2d
687, 690 (10th Cir. 1989); Cooper v. Singer, 719 F.2d 1496, 1505 (10th Cir. 1983),
abrogated on other grounds by Venegas v. Mitchell, 495 U.S. 82 (1990).
In Cooper, we explained that while “[c]ourts can open their doors to the public,
. . . they must rely on lawyers to guide the litigant through the passageways.” 719 F.2d
at 1505. Given that some “self-serving lawyer[s] may ignore the best interests of . . .
[their] clients,” we recognized that courts unmistakably “retain supervisory power over
the attorney-client relationship.” Id. Because “fees”—including “contingent fee
arrangements”—“are central to that relationship,” our supervisory power extends to such
fees and agreements. Id. With this background in mind, we confirmed in Garrick that
“federal court[s] . . . have inherent power to review attorneys’ fees.” 888 F.2d at 690
(citing Rosquist v. Soo Line R.R., 692 F.2d 1107, 1111 (7th Cir. 1982)).
This basic premise is so uncontroversial that our sister circuits considering the
question uniformly agree that the district court retains such inherent power. See
Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 87–88 (1st Cir. 1969)
(acknowledging that courts have the power to “modify” fee arrangements); In re
Goldstein, 430 F.3d 106, 110 (2d Cir. 2005) (noting that federal courts have “the right to
inquire into fee arrangements . . . to protect the client from excessive fees” and “may
order attorneys to return fees the client has paid pursuant to a contract” (omission in
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original) (first quoting In re Michaelson, 511 F.2d 882, 888 (9th Cir. 1975); and then
quoting In re Austrian & German Bank Holocaust Litig., 317 F.3d 91, 98–99 (2d Cir.
2003))); Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3d Cir. 1973) (“[I]n its
supervisory power over the members of its bar, a court has jurisdiction of certain
activities of such members, including the charges of contingent fees.”); In re Abrams &
Abrams, P.A., 605 F.3d 238, 243 (4th Cir. 2010) (“[T]he district courts’ supervisory
jurisdiction over contingent fee contracts for services rendered in cases before them is
well-established.” (quoting Allen v. United States, 606 F.2d 432, 435 (4th Cir. 1979)));
Karim v. Finch Shipping Co. Ltd., 374 F.3d 302, 309 (5th Cir. 2004) (noting that the
court’s power “to reform contingent fee contracts” is “well-recognized”); Krause v.
Rhodes, 640 F.2d 214, 218 (6th Cir. 1981) (noting that because a “federal district judge
has broad equity power to supervise the collection of attorneys’ fees under contingent fee
contracts. . . . an attorney’s right to contract for a contingent fee is not completely beyond
judicial control”); Kalyawongsa v. Moffett, 105 F.3d 283, 286 (6th Cir. 1997) (noting that
contingent-fee contracts “are especially deserving of judicial supervision”); Int’l Travel
Arrangers, Inc. v. W. Airlines, Inc., 623 F.2d 1255, 1277 (8th Cir. 1980) (“The court has
the power and the responsibility to monitor contingency fee agreements for
reasonableness.”); Boatright ex rel. Boatright v. R.J. Cormon R.R. Co./Material Sales,
244 F. App’x 312, 316 (11th Cir. 2007) (per curiam) (unpublished) (holding that “[t]he
decision to reduce the contingency-fee percentage was well within the district court’s
discretion”); Hoffert v. Gen. Motors Corp., 656 F.2d 161, 165 (5th Cir. Unit A Sept.
1981) (“[T]he district judge has broad equity power to supervise the collection of
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attorneys’ fees under [contingency] fee arrangements.”); accord 23 WILLISTON ON
CONTRACTS § 62:9 (4th ed.), Westlaw (database updated May 2022) (“While a greater
fee may often be justified in contingent fee cases, courts will closely scrutinize these
arrangements, due to the special nature of the contract, which gives an attorney an
interest in the outcome of the litigation and which is very susceptible to improper
influence and duress.”).
Indeed, as particularly relevant here, one commentator addressed the matter this
way: “Because courts must exercise their independent discretion in making fee awards in
common-fund cases, individual contingent-fee agreements that class representatives have
entered into are not controlling on the court’s determination of fees for the class recovery.
Otherwise, the potential for abuse could be great.” 1 Alba Conte, ATTORNEY FEE
AWARDS § 2:11 (3d ed.), Westlaw (database updated June 2022); see id. at n.1 (“In class
action fee proceedings, courts may determine reasonable fees and have power to modify
contingent-fee contracts when necessary to avoid excessive fees.”); see also 1 Robert L.
Rossi, ATTORNEYS’ FEES § 7:9 (3d ed.), Westlaw (database updated June 2022) ( noting
that, where the court “use[s] the percentage-of-the-fund method[,] . . . the court should
not simply apply the contingent fee percentage . . . since the percentage of a contingent
fee in the contract between an attorney and the attorney’s client is not controlling in
determining a reasonable fee in a common fund case”).
To be sure, in Sears v. Atchison, Topeka & Santa Fe Railway Co., 779 F.2d 1450(10th Cir. 1985), we declined to “consider for the first time contentions challenging the
reasonableness of the contingent fees set forth in the contracts,” where there was “no
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evidence in the record. . . that the contingent fee contracts at issue were entered into other
than by arms length, honest dealings” and “freely” and “knowingly” by parties that
“agreed that the contingent fees were reasonable.” Id. at 1452. But, while Kansas
Appellants are keen to emphasize that Sears resulted in a remand to the district court, see
id. at 1452–56, we think their reliance on it is misguided. In particular, Sears does not
squarely define the boundaries of the district court’s authority to review and modify
contingent-fee contracts in a case like this one—that is, a case involving a common fund
that was incrementally resolved in 2018 and thereafter.
Sears involved fee shifting under 42 U.S.C. § 1988, rather than a fee allocation
from a common fund. See id. at 1452. And, importantly, the Sears court noted from the
outset that “[t]he sole issue presented by this appeal is whether the district court erred,
based on the facts in this record, in applying [a 1983] en banc opinion of this court . . .
retrospectively so as to abrogate contractual fee agreements entered into between
appellant [attorney] and twenty-two (22) clients in 1972 prior to initiation of litigation
which ultimately resulted in a class action recovery.” Id. at 1450. We assumed that
application of the en banc decision “would require the reduction of the award to [counsel]
from the agreed-to contingent fee percentages contained in the 22 contracts with his
clients to the fees determined to be reasonable and allowable in the class action as found
by the district court.” Id. at 1453. Notably, we concluded that the en banc case “was a
statement of new law in this circuit” and that it “does not apply retrospectively.” Id. In
other words, the legal regime under which counsel secured a remand in Sears to claim the
fees prescribed in his contingent-fee contracts was one that existed prior to 1983—the
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year of the en banc case. Therefore, Kansas Appellants’ reliance on Sears in challenging
the Kansas district court’s ruling in 2018 strikes us as misguided: Sears did not involve a
common fund, and its holding rested on a legal regime that had been superseded many
years before the Kansas district court ruled here. See id. at 1453.37
In sum, we think the district court rightfully invoked its inherent power to review
the contingent-fee contracts. However, there are two additional sources of authority that
support its decision. This case involves a fee allocation from a common fund created
through a class action settlement under Rule 23(h) of the Federal Rules of Civil
Procedure. As we explained supra, Rule 23(h) provides that “[i]n a certified class action,
the court may award reasonable attorney’s fees . . . that are authorized by law or by the
parties’ agreement.” FED. R. CIV. P. 23(h) (emphases added). The committee notes
elucidate that “[a]ctive judicial involvement in measuring fee awards is singularly
important to the proper operation of the class-action process” and instruct district courts
to “ensure that the amount and mode of payment of attorney fees are fair and proper
37
Kansas Appellants also rely on a case that we cited in Sears—specifically,
the Third Circuit’s decision in Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105 (3d Cir.
1979). See Sears, 779 F.2d at 1453. However, the Third Circuit there “h[e]ld that the
district court, both in its supervisory authority over those practicing before it and as part
of its duties imposed by [Rule 23(e) of the Federal Rules of Civil Procedure] . . . ha[s] the
authority [s]ua sponte to . . . set aside contingent fee agreements when it concludes they
would yield unreasonable fees.” Dunn, 602 F.2d at 1114. Indeed, according to the Third
Circuit, a district court’s obligation to “review . . . fee arrangement[s]” is greater when “a
contingent fee contract is to be satisfied from a settlement fund approved by the [court]
pursuant to FED. R. CIV. P. 23(e)”—as is the case here—as Rule 23 “imposes upon [the
district court] a responsibility to protect the interests of the class members from abuse.”
Id. at 1109. Plainly, then, insofar as Kansas Appellants argue that the district court
simply lacked the authority to review and modify the contingent fee contracts, Dunn does
not offer the help that they think it does.
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whether the fees come from a common fund or are otherwise paid.” FED. R. CIV. P. 23(h)
advisory committee’s notes to 2003 amend. For that reason, the court can “adjust[] . . .
the class fee award” to achieve its “objective . . . [of] ensur[ing] an overall fee that is fair
for counsel and equitable”—even where “individual fee agreements between class
counsel and class members . . . have provisions inconsistent with” that objective. Id.Accordingly, Rule 23(h) provided authority for the Kansas district court’s action with
respect to the contingent-fee contracts here.
Finally, the Settlement itself vested the district court with authority to review and
determine the enforceability of the contingent-fee contracts. As the Kansas Special
Master observed, the Settlement “recognize[d] that the enforceability of any attorneys’
fee contract affecting a Class Member [was] subject to judicial review” and further
offered that the judiciary “shall have exclusive jurisdiction to decide the enforceability of
any lien,” including “any lien for attorneys’ fees.” Joint App., Vol. 21, at 4795 (quoting
Joint App., Vol. 5, at 1105). Moreover, the Settlement expressly “supersede[d] all prior
proposals, negotiations, agreements, and understandings relating to [its] subject matter,”
including issues of attorneys’ fees. Id. at 4802 (quoting Joint App., Vol. 5 at 1106.) The
Kansas district court agreed, concluding that its authority to cap the contingent-fee
awards also arose from the Settlement.38
38
Notably, the Kansas district court made clear that individual plaintiffs who
wanted to opt out of the class action could do so. See Joint App., Vol. 5, at 1214–15.
The district court even acknowledged that “economic incentives exist for counsel who are
not part of the leadership to procure opt outs . . . to pursue a course in which those
counsel might be better situated to earn a fee.” Id. at 1214. But, because their clients did
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This weighty, tripartite authority notwithstanding, Kansas Appellants argue that
the Supreme Court’s decision in U.S. Airways, Inc. v. McCutchen, 569 U.S. 88 (2013)
abrogated the district court’s ability to cap contingent-fee contracts in the class action
settlement context. We are unpersuaded.
McCutchen, in relevant part, determined whether certain equitable defenses rooted
in the common fund doctrine could be asserted to “override” the express terms of an
Employee Retirement Income Security Act (ERISA) contract. 569 U.S. at 94.
Respondent James McCutchen participated in a health benefits plan established by his
employer, U.S. Airways, under ERISA. See id. at 91. The express terms of the plan
obliged U.S. Airways to pay any medical expense McCutchen incurred as a result of a
third party’s actions. See id. In turn, the plan entitled U.S. Airways to reimbursement if
McCutchen later secured a financial recovery. See id. When McCutchen suffered a
serious accident at the hands of a third party, his ERISA plan through U.S. Airways paid
for certain medical expenses. See id. at 92. However, McCutchen also sued the third
party responsible for his injuries. See id. Limitations in the third party’s insurance
coverage meant that McCutchen could only recover $110,000 of his accident-related
damages, which exceeded $1 million. See id. After deducting attorney’s fees,
McCutchen’s take-home award totaled only $66,000. See id.Then came U.S. Airways. Looking to the terms of the ERISA plan, U.S. Airways
demanded reimbursement for the money it previously paid for McCutchen’s medical
not opt out, the Settlement, along with equitable principles, provides the basic framework
for their counsel’s attorneys’ fees.
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expenses. See id. A subsection of ERISA authorized U.S. Airways to enforce the terms
of the plan through an equitable action. See id. at 93. McCutchen, then, asked the court
whether a plan participant may raise certain equitable defenses based on principles of
unjust enrichment—such as, in relevant part, “requiring the party seeking reimbursement
to pay a share of the attorney’s fees incurred in securing funds from the third party.” Id.
at 91. Such a defense—which stemmed from the common fund doctrine—would have
functioned to prevent U.S. Airways from “obtain[ing] [the] full benefit from
[McCutchen’s] efforts without contributing . . . to [his] litigation expenses.” Id. at 100(omission in original) (emphasis added) (quoting Mills v. Elec. Auto-Lite Co., 396 U.S.
375, 392 (1970)). The Supreme Court held, in relevant part, that the common fund
doctrine could not “override the clear terms” of the contract. McCutchen, 569 U.S. at 91.
Regarding this holding, the Court explained that “if the agreement governs, the
agreement governs.” Id. at 99. So, because McCutchen and U.S. Airways entered a
contract entitling the latter to reimbursement expenses, equitable rules rooted in unjust
enrichment, like the common fund doctrine, should not operate to nullify that bargained-
for provision. See id. at 99–100. That was so, reasoned the Court, because “principles of
unjust enrichment give way when a court enforces an equitable lien by agreement,” as
“[t]he agreement itself becomes the measure of the parties’ equities.” Id. at 100(emphasis added). Put differently, “if a contract abrogates the common-fund doctrine,
the insurer is not unjustly enriched by claiming the benefit of its bargain.” Id.Kansas Appellants liken their initial contingent-fee contracts to the “equitable lien
by agreement” at issue in McCutchen. Kan. Aplts.’ Opening Br. at 43. Those contracts,
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Kansas Appellants insist, governed, as “[n]either a court’s ‘inherent authority,’ nor the
application of more general common-fund principles can override these contractual
liens.” Id. at 42. Thus, invoking McCutchen, Kansas Appellants urge us to reverse with
instructions to award them attorneys’ fees consistent with their fee contracts.
We find the comparison to McCutchen inapposite. First, assuming arguendo that
their contingency-fee contracts make an equitable assignment, Kansas Appellants are not
attempting to enforce the lien of the contracts against the contract’s other signatories—a
key facet of the Supreme Court’s analysis in McCutchen—because they are obtaining
their fee awards as a product of the Syngenta class settlement. Put otherwise, whereas
U.S. Airways sought to enforce a contract McCutchen signed, Kansas Appellants attempt
to enforce a contingent-fee contract entered into by their clients against other attorneys in
the fee award pool who were never party to those contracts. Kansas Appellants admitted
as much during oral argument, stating that they “are not trying to enforce the contingency
fee agreements against the[ir] clients,” i.e., the actual parties to their fee contracts.39 Oral
Argument, No. 19-3008, at 3:44–4:27 (10th Cir., dated March 10, 2021). By instead
attempting to “recover their Contract fees from Appellees”—who, it bears repeating,
never signed a contingent-fee contract with them—Kansas Appellants turn McCutchen’s
logic on its head by suspending the equitable considerations animating the common fund
doctrine even in the absence of an agreed-to equitable lien. Toups/Coffman Supp. Br.
39
As Joint Appellees point out, Kansas Appellants “fail to show that their fee
contracts are anything but ‘silent on the allocation of attorneys’ fees[]’ from an aggregate
award, which is not surprising because the fee award is being allocated between them and
other attorneys who were not parties to those agreements.” Appellees’ Br. at 69–70.
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at 9 n.8. McCutchen said exactly the opposite: traditional equitable considerations give
way when courts enforce an “agreement” or “contract,” because the agreement is the
“measure of the parties’ equities.” 569 U.S. at 100. Where there is no governing
contract—and how could there be when the Appellees never signed a contingent-fee
agreement with Kansas Appellants—the courts may apply equitable doctrines. See id.
at 98.
Second, the contract at issue in McCutchen is akin to the standard commercial
contract that demands judicial respect when freely entered into by the parties. But the
Supreme Court, itself, has recognized that contingent-fee agreements trigger different
considerations and can be “problematic, particularly when not exposed to court review.”
Gisbrecht v. Barnhart, 535 U.S. 789, 803 (2002). In Gisbrecht, for instance, the Court
acknowledged that courts test contingent-fee arrangements for “reasonableness” and
“have appropriately reduced the attorney’s recovery based on the character of the
representation and the results the representative achieved.” Id. at 808. So, even if the
contingent-fee contracts at issue in this case paralleled an ERISA contract, we would
decline Kansas Appellants’ invitation to read McCutchen’s language—which did not
address attorney contingent-fee contracts—in a way that conflicts with the Gisbrecht
Court’s approval of judicial review.
In sum, we have no trouble concluding that the court possessed the requisite
authority to review and modify the contingent-fee contracts. In this case, that authority
sprung from the district court’s inherent power to review the contingent-fee contracts,
Rule 23, and the Settlement. That said, though we think the district court’s power to
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review and modify the contingent-fee contracts is particularly potent in this case, it is not
without limit. Rule 23(h) emphasizes that fees must be reasonable. See FED. R. CIV.
P. 23(h) (“[T]he court may award reasonable attorney’s fees . . . .” (emphasis added)).
So, if the contingent-fee contract is the best measurement of reasonableness, abrogating
the contract would be inconsistent with the district court’s duty to award reasonable fees.
b. The Effective 10% Cap
Its authority to review and modify having been firmly established, we now ask
whether the Kansas district court abused its discretion by imposing a 10% cap on the
contingent-fee contracts. Or, more precisely, we ask whether the district court abused its
discretion in concluding that the contingent-fee contracts were inappropriate yardsticks
for a reasonable fee award. It did not.
Drawing on the Kansas Special Master’s careful factual analysis, the district court
thoroughly supported its conclusion that modifying the contingent-fee contracts was
necessary. The Kansas Special Master explained that the Syngenta class members—
mostly farmers—were generally “[in]experienced in the intricacies of class action and
mass action litigation,” leaving them “potentially vulnerable to overreaching . . .
contingent fee agreements committing a substantial portion of any recovery to lawyers
who would do limited work and rely on the work of other lawyers who will be
compensated out of a common benefit fund.” Joint App., Vol. 21, at 4794. Thus,
overreaching contingent-fee agreements benefitting counsel who “did not provide service
of any material value to the class,” id., threatened the Plaintiffs’ Settlement Negotiating
Committee’s goal of ensuring that “similarly situated plaintiffs would receive similar
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compensation under the Settlement Agreement, and that individually represented
plaintiffs would not receive a lower net recovery due to attorneys’ fee obligations,” id.at 4795–96. Accordingly, the Settlement struck the delicate balance of curbing excessive
contingent-fee awards while providing for “fair compensation” to attorneys representing
individual clients. Id.To that end, the Kansas Special Master recommended that contingent-fee awards
be capped at 10% of a client’s recovery. See id. at 4810. Though recognizing that this
cap represented “a significant reduction from the typical 30–40% contingent fee”
agreement, the Kansas Special Master thought the reduction reasonable given that most
IRPA counsel “did little more than recruit clients and in some cases fill out PFSs.”40 Id.
By contrast, leadership lawyers in each jurisdiction performed the “vast majority of the
work of litigating legal issues, taking fact and expert discovery, arguing motions, trying
cases,” and pursuing settlement negotiations. Id. After conducting a de novo review, the
Kansas district court adopted the Kansas Special Master’s factual findings and agreed, in
light of the IRPA attorneys’ relatively small “contribution to the ultimate recovery,” that
the 10% cap on contingent fees “appropriately rewarded” counsel. Id., Vol. 23, at 5361.
In short, the district court found the 10% cap reasonable. See id.
In sum, we hold that the district court’s inherent authority, together with both
Rule 23(h) of the Federal Rules of Civil Procedure and the Settlement, empowered it to
40
The Kansas Special Master further noted that IRPA counsel provided
limited value in preparing claims for their clients “given the simplicity of the Claims
Process”—an observation “confirmed by the fact that the majority (52%) of Claims have
been filed pro se.” Joint App., Vol. 21, at 4810.
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modify contingent-fee contracts. Furthermore, in view of the district court’s careful
consideration of the specific facts in this case, we hold that it did not abuse its discretion
in imposing a 10% cap on the contingent-fee contracts at issue in this case.
3. The Lodestars and the IRPA Fee Allocation
Kansas Appellants next home in on the disparity between their attorneys’ fee
recovery and the recovery of the Kansas MDL Leadership. Upon observing that their fee
award downwardly departs from their lodestars, Kansas Appellants argue that they should
have received their full lodestars. They also claim that the Kansas district court erred in
allocating a “paltry” 12% of the aggregate fee award—approximately $60 million—to the
IRPA pool. Kan. Aplts.’ Opening Br. at 54. On the other end of the disparity, Kansas
Appellants aver that the court erred in approving the Kansas MDL Leadership fee award,
which reflected a lodestar multiplier of 3. They similarly take issue with the size of the
Kansas MDL Leadership’s class-counsel fee award, alleging that the sizable award
represents an abuse of discretion and asking us to reverse. See id. at 57–61. Because
these contentions dovetail with Kansas Appellants’ third question presented—whether
the court arbitrarily allocated fees—we resolve both question two and question three in
this section.
At bottom, Kansas Appellants take issue with (1) the secondary status the district
court gave their lodestar figures and (2) the factors the district court weighed in allocating
fees among and within the pools. By implication, Kansas Appellants reject the district
court’s use of the percentage-of-the-fund method to allocate fees, effectively arguing that
the court was required to employ the lodestar method. Irrespective of which method the
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court applied, Kansas Appellants secondarily argue that the court arbitrarily allocated the
fees.
Thus, resolution of these complaints turns on two related questions: whether the
district court erred in applying a percentage-of-the fund approach and, if not, whether the
court otherwise allocated the aggregate fee award arbitrarily and unreasonably among
and within the pools.
a. The Percentage-of-the-Fund vs. Lodestar Methods in the Class Action
Context
Arguing that their lodestar figure is presumptively reasonable, Kansas Appellants
contend that they should have “receive[d] their respective lodestars.” Kan. Aplts.’
Opening Br. at 52–53. In that respect, Kansas Appellants backhandedly argue that, as a
rule, the district court erred in applying a percentage-of-the-fund method, rather than a
lodestar method, in determining their fee award.
We have already asked—and answered—“whether a fee award based on a
percentage of a common fund . . . is per se unreasonable.” Brown, 838 F.2d at 454. It is
not. See id. (“We hold, therefore, that the award of attorneys’ fees on a percentage basis
in a common fund case is not per se an abuse of discretion.”); accord Blum v. Stenson,
465 U.S. 886, 900 n.16 (1984) (noting that “under the ‘common fund doctrine,’ . . . a
reasonable fee is based on a percentage of the fund bestowed on the class”). That is
because the “award of attorneys’ fees is based on substantially different underlying
purposes in a common fund case” than in other kinds of cases, Brown, 838 F.2d at 454—
such as those involving fee-shifting statutes, see Perdue v. Kenny A. ex rel. Winn, 559
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U.S. 542, 551 (2010) (explaining that the lodestar method accords with “the aim of fee-
shifting statutes”).
Ordinarily, under the “American Rule,” prevailing litigants are responsible for
paying their own attorneys’ fees. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242,
253 (2010). But the class action context offers an exception to this rule through the
“common fund” doctrine. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). In large
class actions such as this, a relatively small handful of plaintiffs bear the cost of suit. See
Mills, 396 U.S. at 392. If those plaintiffs prevail, their success benefits the entire class.
Id. Were the American Rule to apply in this context, the named class plaintiffs would
shoulder the costs of suit—including attorneys’ fees—for the entire class, even as the
remainder of the class reaps the benefits of their labor. See Rosenbaum v. MacAllister,
64 F.3d 1439, 1444 (10th Cir. 1995). The common fund doctrine prevents such unjust
enrichment by enabling class action attorneys to extract fees from the collective award,
thereby “spread[ing] the costs [of suit] proportionately among” the ascertainable class.
Hall v. Cole, 412 U.S. 1, 5 (1973) (quoting Mills, 396 U.S. at 393–94); see also Boeing,
444 U.S. at 478 (noting the Court’s “consistent[]” recognition that the common fund
entitles an attorney who recovers common, or collective, benefits for persons other than
herself or her client to a “reasonable . . . fee from the fund as a whole”); Chambers v.
NASCO, Inc., 501 U.S. 32, 45 (1991) (noting that the common fund doctrine “derives not
from a court’s power to control litigants, but from its historic equity jurisdiction, . . . and
allows a court to award attorney’s fees to a party whose litigation efforts directly benefit
others”).
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Similar equitable considerations, together with ethical concerns, permit courts to
award fees on a percentage-of-the-fund basis, as opposed to the lodestar method. See
Gottlieb v. Barry, 43 F.3d 474, 482 (10th Cir. 1994) (recognizing that “[m]any courts
have addressed the propriety of utilizing the percentage of the fund instead of the lodestar
in calculating attorneys’ fees in common fund cases”); Voulgaris v. Array Biopharma,
Inc., No. 22-1003, 2023 WL ---, Slip. Op. at 4 (10th Cir. Feb. 27, 2023) (recognizing that
“[t]wo methods exist for determining attorneys’ fee awards in common-fund class action
cases[,]” including “the percentage-of-the fund method”). To be sure, the lodestar
method “produces an award that roughly approximates the fee that the prevailing attorney
would have received if he or she had been representing a paying client who was billed by
the hour in a comparable case.”41 Perdue, 559 U.S. at 551 (second emphasis added).
But some courts have found that using the lodestar approach in common fund cases
“encourages significant elements of inefficiency” because the method incentivizes
attorneys to “spend as many hours as possible,” resulting in fewer settlements. Swedish
Hosp. Corp. v. Shalala, 1 F.3d 1261, 1268 (D.C. Cir. 1993). Moreover, unlike in
traditional litigation, a common-fund beneficiary is less incentivized to scrutinize her
attorney’s lodestar-based fee petition because she is one of many receiving a small slice
of the collective pie. Cf. Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs’
Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and
41
To the extent that Kansas Appellants argue that Perdue required the district
court to apply the lodestar method, their argument is unavailing in this case, as Perdue
was a fee-shifting case. See 559 U.S. at 546.
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Recommendations for Reform, 58 U. CHI. L. REV. 1, 26 n.79 (1991) (discussing
incentives to object). As well, and as this case illustrates, applying the lodestar method to
a common fund case can fail to account for the productive quality of an attorney’s labor,
that is, whether an attorney’s time meaningfully contributed to benefits conferred on the
class. See generally Report of the Third Circuit Task Force, Court Awarded Att’y Fees,
108 F.R.D. 237, 265 (1986) (noting that an attorney’s “contribution to a prompt or a
delayed resolution of the action” is one factor to consider in awarding fees). In a
common fund case, the fund, itself, is the measure of an attorney’s success. Thus, under
the percentage-of-the-fund method, “inefficiently expended hours only serve to reduce
the per hour compensation of the attorney expending them.” Swedish Hosp., 1 F.3d
at 1269.
Our decision in Gottlieb is instructive. There, multiple shareholders filed suit
against MiniScribe; the district court, however, only certified one case to proceed as a
class action. See Gottlieb, 43 F.3d at 481. On the eve of a non-class-action suit initiated
by MiniScribe’s trustee, the parties reached a global settlement. See id. The district court
allocated $44 million of the $128 million fund to the one certified shareholder class. See
id. The district court also awarded attorneys’ fees but, in doing so, rejected the
percentage-of-the-fund method in favor of the lodestar method. See id. at 484–85. In
reversing, we first acknowledged that the settlement “created a ‘common fund’ from
which the plaintiff class obtained a benefit” and, accordingly, “[a]ttorneys’ fees [were]
appropriately awarded from that fund, on the theory ‘that persons who obtain the benefit
of a lawsuit without contributing to its costs are unjustly enriched at the successful
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litigant’s expense.’” Id. at 482 (quoting Boeing, 444 U.S. at 478). Faced with the
question of whether the “proper methodology for awarding attorneys’ fees out of a
common fund” entailed a percentage-of-the-fund approach or a lodestar analysis, we
expressed a preference for the percentage-of-the-fund approach where a special master
made detailed factual findings in support of the approach. Id. at 482, 487–88; see also
Brown, 838 F.2d at 454 (“The Supreme Court . . . explicitly described a percentage
calculation as a ‘reasonable fee’ in [common fund] cases.” (quoting Blum, 465 U.S.
at 900 n.16)).
However, because the touchstone of a fee award analysis is reasonableness, we do
not require rigid adherence to either the percentage-of-the-fund or lodestar methods in the
common fund context. See Gottlieb, 43 F.3d at 482–83. To illustrate reasonableness,
district courts must “articulate specific reasons for [their] findings.” Uselton v. Com.
Lovelace Motor Freight, Inc., 9 F.3d 849, 853 (10th Cir. 1993). And, to guide those
findings, we further require district courts to consider the factors outlined in Johnson,
488 F.2d at 717–19, regardless of which method is used. See Gottlieb, 43 F.3d at 483.
Still, in keeping with our longstanding flexible posture, we have acknowledged
that the Johnson factors’ applicability and weight in “common fund situations w[ill]
undoubtedly be different” than in statutory fee situations, Uselton, 9 F.3d at 853, a point
that we expounded on in Brown:
Although the Johnson factors are relevant in determining a reasonable fee in
a common fund case, the inherent differences between statutory fee and
common fund cases could justify a trial judge’s decision to assign different
relative weights to those factors in the two types of cases. For example, the
first factor—time and labor required—is an essential touchstone for recovery
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in a statutory fee case where reasonableness is measured in part by reference
to the lodestar analysis. In a common fund case, however, although time and
labor required are appropriate considerations, the ninth Johnson factor—the
amount involved and the results obtained—may be given greater weight
when . . . the trial judge determines that . . . the efforts of counsel were
instrumental in realizing recovery on behalf of the class. . . . [R]arely are all
of the Johnson factors applicable; this is particularly so in a common fund
situation. We hold here . . . that in awarding attorneys’ fees in a common
fund case, the “time and labor involved” factor need not be evaluated using
the lodestar formulation when, in the judgment of the trial court, a reasonable
fee is derived by giving greater weight to other factors, the basis of which is
clearly reflected in the record.
Brown, 838 F.2d at 456 (citation and footnote omitted).
Thus, we characterize this “percentage plus Johnson factors” framework as a
“hybrid” approach to attorneys’ fees. See, e.g., Chieftain Royalty Co. v. Enervest Energy
Institutional Fund XIII-A, L.P., 888 F.3d 455, 459 (10th Cir. 2017) (“Our approach . . .
‘has been called a “hybrid” approach, combining the percentage fee method with the
specific factors traditionally used to calculate the lodestar [i.e., the Johnson factors].’”
(quoting Gottlieb, 43 F.3d at 482–83)); Uselton, 9 F.3d at 853 (noting that we have
“distinguished common fund cases from statutory fee cases and recognized the propriety
of awarding attorneys’ fees in the former on a percentage of the fund, rather than
lodestar, basis”); accord Fresno Cnty. Emps.’ Ret. Ass’n v. Isaacson/Weaver Fam. Tr.,
925 F.3d 63, 68 (2d Cir. 2019) (“Under the common-fund doctrine, a district court may
select ‘either the lodestar or percentage of the recovery methods’ to calculate fees. A
common-fund-percentage fee must still be evaluated for reasonableness, but may exceed
the lodestar—i.e., it may be less than, equal to, or greater than the lodestar.” (emphasis
added) (citations omitted) (quoting Goldberger v. Integrated Res., Inc., 209 F.3d 43, 45
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(2d Cir. 2000))). This hybrid approach, in turn, helps ensure that the percentage-of-the-
fund award remains reasonable.
b. Ensuring a Reasonable Fee and the Johnson Factors
Accordingly, when Kansas Appellants insist that their lodestar figure, as a
categorical rule, reflects the “reasonable rate,” they are wrong. See Brown, 838 F.2d
at 454 (“We hold, therefore, that the award of attorneys’ fees on a percentage basis in a
common fund case is not per se an abuse of discretion.”). Still, as the foregoing
discussion makes clear, application of a percentage-of-the-fund method does not
automatically result in a reasonable fee allocation. So, with the framework just described
in mind, we ask whether the district court misapplied the Johnson factors or otherwise
unreasonably allocated the aggregate fee award. We conclude that Kansas Appellants
have failed to establish that the district court abused its discretion in allocating the
aggregate attorneys’ fee award in the way the court did—among and within the four
pools—which is all we ask under our deferential abuse-of-discretion standard. See
Garrett v. McRee, 201 F.2d 250, 254 (10th Cir. 1953) (“[W]e certainly should not disturb
the exercise of [the district court’s] discretion as to apportionment [of an attorneys’ fee
award] in the absence of clear abuse.”). It is readily apparent from the district court’s
numerous allocation orders that it considered many of the Johnson factors—or at least
their substance—along the way to the ultimate inquiry of its attorneys’ fee analysis:
whether the fee is reasonable.
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i. Allocations Between the Pools
We turn to the allocations between the Kansas and IRPA pools; Kansas Appellants
object to the disparity between the two. In view of the Johnson factors, the Kansas
Special Master identified “[s]everal points concerning this unique litigation and
settlement [that] bear on . . . the . . . allocation considerations,” including the considerable
experience of lead plaintiffs’ counsel; substantively, the novelty of the claims counsel
raised and the difficulty of the damages issues; Syngenta’s aggressive, first-tier defense;
the absence of government involvement and its role in increasing lead plaintiffs’ risk;
lead plaintiffs’ counsels’ coordinated, efficient litigation efforts; the “enormous amount
of work” demanded by this case and the “hard-fought settlement negotiations”; the
“unprecedented” court decisions obtained; and the “extraordinary” results. Joint App.,
Vol. 21, at 4783–84.
These factors largely corresponded to the twelve Johnson factors, albeit
incompletely, and implicitly shaped the Kansas Special Master’s recommendation that
90% of the fee award be divided among the three common benefit pools and the
remaining 10% be allocated to the IRPA pool. Of that 90%, the Kansas Special Master
recommended that the court assign 50% of the award to the Kansas common benefit pool
because the Kansas attorneys led the federal MDL, conducted “massive” discovery
against Syngenta, and obtained significant rulings on complex legal issues, including
issues that cleared the path for state court litigation.42 Id. at 4818. Most significantly, the
42
As previously mentioned, the Kansas district court ultimately reduced this
50% allocation to 49% to increase the IRPA pool allocation from 10% to 12%.
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Kansas group obtained certification of a nationwide class and tried their class litigation to
a $217.7 million verdict that brought Syngenta to the settlement table. Moreover, one of
the Kansas attorneys devoted significant time and effort to the settlement despite courting
many other obligations.
As the Kansas Special Master reasoned, whereas the “vast majority of the work of
litigating legal issues, taking fact and expert discovery, arguing motions, trying cases, and
settlement negotiation was done by the leadership lawyers in each jurisdiction,” id.
at 4810, the IRPAs conducted “limited work,” id. at 4809. In fact, the Kansas Special
Master found that the IRPAs “did little more than recruit clients and in some cases fill out
PFSs.” Id. at 4810. Certainly, in assessing the IRPAs’ time and labor, the difficulty of
their work, and the skill required to perform it, the Kansas Special Master’s discussion
implicitly addressed several of the applicable Johnson factors.
The Kansas district court agreed with these factual findings and additionally
observed that the time and expense that IRPAs incurred in recruiting and communicating
with clients, filling out forms, monitoring the litigation, and the like did not contribute to
the ultimate recovery. The district court also specifically found that the claims process
with which many IRPAs assisted clients was “quite simple and streamlined, as evidenced
by the fact that more than half of the claimants were not represented by individual
counsel.” Id., Vol. 23, at 5362. As the court saw it, the rub was that other counsel
“relieved” the IRPAs from “having to do any work to advance their clients’ lawsuits or to
add value to their claims.” Id. Regarding the weight to assign to the IRPAs’ contingent-
fee contracts, the district court explained, concerning Johnson’s sixth factor, that a 10%
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cap was appropriate given the “particular facts” of this case. Id.; see also Johnson,
488 F.2d at 718 (considering the presence of contingent-fee contracts in determining a fee
award).
Kansas Appellants insist that the first Johnson factor—time and labor—required
the court to use their lodestars as a “starting point,” and otherwise argue that the district
court erred in again discounting their contingent-fee contracts. Kan. Aplts.’ Opening Br.
at 63–65. However, as we recognized in Brown, “the inherent differences between
statutory fee and common fund cases could justify a trial judge’s decision to assign
different relative weights” to certain of the Johnson factors. Brown, 838 F.2d at 456.
Consistent with this observation, the district court’s decision to discount time that did not
contribute to the ultimate recovery furthered the common fund doctrine’s goal of
preventing unjust enrichment. Cf. Swedish Hosp., 1 F.3d at 1269 (“[T]he attorney
inefficiently expending an excess amount of time . . . stand[s] to gain by that inefficiency
if the awarding court does not ultimately recognize the inefficiency . . . .”). In the context
of common funds, to otherwise compensate an attorney for time that did not advance a
collective benefit would allow that attorney to “obtain full benefit” from a productive
party’s efforts, thereby “enrich[ing] [her] . . . unjustly” at another’s expense. Mills,
396 U.S. at 392; see also McCutchen, 569 U.S. at 96, 105 (noting that the common fund
doctrine is “designed to prevent freeloading” and, in this regard, discussing “[t]he
rationale for the common-fund rule”).
So, notwithstanding Kansas Appellants’ assertion to the contrary, the district court
outlined why the IRPA allocation was generally reasonable under Johnson. The court’s
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ultimate rejection of the Kansas Special Master’s 10% IRPA allocation recommendation
and subsequent decision to increase the IRPA pool allocation by two percentage points to
“achieve a likely effective contingent fee closer to 10 percent,” underscores the district
court’s considered judgment.43 Joint App., Vol. 23, at 5366–67. We see nothing in the
record to indicate that the district court failed to carefully consider the facts and
applicable law in allocating 49% of the fee award to the Kansas pool and 12% to the
IRPA pool.44
43
Taking issue with the 12% IRPA allocation, which capped their contingent
fees to 10%, Kansas Appellants cite a slew of cases where the district court awarded
individual plaintiffs’ counsel 23–33.3% of their clients’ gross recoveries. But what
Kansas Appellants fail to appreciate on appeal is that the district court is best positioned
to judge the reasonableness of fee requests in each case. “We can hardly imagine a more
futile and foolhardy endeavor than struggling to review each district court’s degree of
familiarity with a case to decide how much deference to grant its findings and
conclusions.” Swedish Hosp., 1 F.3d at 1272.
44
It is of no moment that the court’s analysis—all of which tracked several of
the Johnson factors—did not explicitly invoke Johnson; there is no talismanic incantation
district courts must chant when considering the Johnson framework. See Law,
4 F. App’x at 752 (“Although the district court did not expressly address the [Johnson]
factors, the hearing transcript demonstrates that it considered fully the nature, extent, and
value of appellant’s contributions to the underlying lawsuits, matters which include and
define many of the Johnson factors.”). It is similarly inconsequential, in this case, that
the Kansas Special Master—and, later, the district court—failed to consider, in substance,
each and every one of the Johnson factors. See Gudenkauf v. Stauffer Commc’ns, Inc.,
158 F.3d 1074, 1083 (10th Cir. 1998) (finding no abuse of discretion where district court
failed to specifically address each Johnson factor). The Kansas district court recognized
that the Kansas Special Master considered the Johnson factors most applicable to this
case and, given that consideration, permissibly concluded that her allocation
recommendations were reasonable, see Brown, 838 F.2d at 456—with the mere exception
of her recommended IRPA allocation, which it increased by two percentage points.
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ii. Allocations within the Pools
Finally, we reject Kansas Appellants’ arguments that the district court erred in
how it allocated awards within the respective pools. Specifically, Kansas Appellants
object to the district court both awarding the Kansas MDL Leadership 98.07% of the
Kansas Common Benefit Pool award and applying a lodestar multiplier of 3 to the award.
They additionally object to the district court’s application of a 2.5 multiplier to some
firms for bellwether discovery work but only a 1.25 multiplier for their own bellwether
discovery work. Such disparate treatment, Kansas Appellants argue, is unreasonable.
First, though they object to the district court’s portioning of the Kansas Common
Benefit Pool Award to the Kansas MDL Leadership, Kansas Appellants curiously cite to
cases and other legal authorities that bear on the propriety of fee percentages vis-à-vis the
entire settlement award.45 This is curious because presumably it is in their interest that
the aggregate fee pie be as large as possible—conceivably, allowing for more for them.
However, in the event that their cited authorities actually reflect Kansas Appellants’
concern that the Aggregate Fee Order is excessive vis-à-vis the entire settlement award,
we agree with our sister circuit that, “while it may be appropriate in some circumstances
for fee percentages in large recovery cases to be smaller than those in smaller recovery
cases, ‘there is no rule that a district court must apply a declining percentage reduction in
45
Compare Kan. Aplts.’ Opening Br. at 57 (“The amount of this class counsel fee
award is an extraordinary and unjustified outlier in a mega-fund class-action
settlement.”), with id. (approvingly discussing “common fund class fee awards as low as
4.1% where the recovery exceeds $100 million”).
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every settlement involving a sizable fund.’” In re AT&T Corp., 455 F.3d 160, 174 (3d
Cir. 2006) (quoting In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 303 (3d Cir. 2005)).
More fundamentally—and more relevant to Kansas Appellants’ salient concern
about the portion of the Kanas pool allocated to the Kansas MDL Leadership—
reasonableness is the benchmark. As such, as a general matter, we neither require nor
embrace overly formulaic approaches that cramp the district court’s full appreciation of
each case’s facts. And that approach also applies to allocations within a pool. Thus,
because the Kansas Special Master and district court thoughtfully considered the Kansas
MDL Leadership’s many contributions to the ultimate settlement recovery alongside the
Johnson factors, we see no occasion to disturb the Kansas MDL Leadership’s fee award,
let alone the Aggregate Fee Order.
For a similar set of reasons, we cannot conclude that the district court abused its
discretion in awarding a multiplier of 3 to the Kansas MDL Leadership. As the district
court explained, the leadership multiplier reflected “each firm’s contribution to the
overall benefit of the settlement class, in accordance with the common benefit guidelines
set forth in the Court’s initial allocation order.” Joint App., Vol. 25, at 5866. Likewise,
the district court justified the disparity between multipliers for bellwether discovery work
“by reference to the significant work” that some firms—not Kansas Appellants—
“performed to advance the litigation.” Id. at 5873–74. The firms that received a 2.5
multiplier for their pre-trial work “contributed more to the common benefit of the
settlement class than the . . . work performed” by Kansas Appellants. Id. at 5874. Our
precedent allows for the application of multipliers where, as here, “there is evidence of
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something extraordinary in the results . . . or if one of the Johnson factors appears to
demand it.” Rosenbaum, 64 F.3d at 1448. By all accounts, this is such a case.
***
In sum, Kansas Appellants fail to cast doubt on the reasonableness of the Kansas
district court’s fee allocation decision—be it the court’s December 31, 2018, Fee
Allocation Order approving the four-pool allocation scheme, or the March 2019 Kansas
Pool Allocation Order awarding fees based on each attorney’s or law firm’s relative
contribution to the settlement process and the class settlement fund. While Kansas
Appellants may hold their work in higher regard than the Kansas district court, they point
to no evidence that the court’s specific fee allocation decisions exceeded the bounds of
the court’s discretion. As is clear from our caselaw, our review of attorneys’ fee
decisions should not devolve into a full-blown second litigation or, more bluntly, a
“re-do” for the disgruntled fee applicant. We find no abuse of discretion.
E. The Minnesota Appellants
Minnesota Appellants similarly challenge the Kansas district court’s December 31,
2018, Fee Allocation Order. They bring three issues before us, which they describe as
follows:
(1) “Whether, in awarding attorneys’ fees, the district court erred in
refusing to enforce—or even consider—[the JPAs] entered early in
the litigation that allocated fees between mass-action and common-
benefit counsel.”46 Minn. Aplts.’ Opening Br. at 5.
46
Per Minnesota Appellants’ explanation at oral argument, the JPA at issue
here “was entered into very early on” in the litigation between “Minnesota Counsel and
Kansas counsel and provided for the division of fees in the event that there was a
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(2) “Whether the district court erred in allocating 12% of fees to retained
counsel—a fraction of what the JPAs required—without considering
traditional equitable principles.” Id.(3) “Whether the district court erred in allocating 23.5% of available fees
to Minnesota, 49% to Kansas, and 15.5% to Illinois—resulting in
wildly disparate compensation uncorrelated to each jurisdiction’s
relative contributions—without any lodestar analysis.” Id. at 5–6.
Once more, we address each issue in turn and uphold the Kansas district court’s
judgment.
1. The Joint Prosecution Agreements
On Issue 1, Minnesota Appellants challenge the Kansas district court’s effective
abrogation of the JPAs when it allocated the attorneys’ fees award—an argument we are
already familiar with, given that Kansas Appellants have posed a similar question, supra,
concerning their contingency-fee agreements. Specifically, Minnesota Appellants
explain that “[t]he lead lawyers pursuing claims against Syngenta executed binding
contracts—Joint Prosecution Agreements—to coordinate their efforts and ensure a
proportional distribution of costs and benefits.” Id. at 24. Under these agreements,
“Minnesota Mass-Action Counsel agreed to work cooperatively with putative class
counsel and surrender a portion of their own fees to compensate class counsel for efforts
accruing to mutual benefit.” Id. But, “[w]hen th[e] litigation settled, the district court
asserted that those JPAs had no bearing on the allocation of fees,” which “cannot be
settlement with Syngenta.” Oral Argument, No. 19-3008, at 1:02:40–1:03:28 (10th Cir.,
dated March 10, 2021).
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reconciled with the text of the JPAs or the settlement agreement,” “defies Supreme Court
precedent,” is “inequitable,” and reflects “bad policy.” Id..
Much like Kansas Appellants’ arguments, Minnesota Appellants’ contentions are
unpersuasive. We think that Minnesota Appellants effectively waived their present
challenge. But, even if the Minnesota Appellants properly preserved the issue, the
abrogated JPAs neither contemplated nor applied to a class recovery. Accordingly, it did
not control the Kansas district court’s fee allocation. In the absence of a controlling JPA,
the district court reasonably applied the Johnson factors.
a. Effective Waiver
To start, we find that Minnesota Appellants have effectively waived any challenge
concerning the Kansas district court’s disregard of the JPAs (Issue 1). Recall that the
district court rejected a similar argument when it was posed below. As we explained
earlier, the Kansas district court concluded the JPAs “do not govern” in this action
because: (1) the court is not bound by private agreements among attorneys; (2) the JPAs,
per their terms, do not apply to the instant situation involving a nationwide settlement
class since it applied to an allocation of fees that may be recovered in multiple, separate
litigations; (3) the Settlement entered into by Syngenta and all other relevant parties
superseded all other prior agreements, including the JPAs; and (4) the court’s Common
Benefits Order “addressed the issue of assessments in the event of individual recoveries,
and they do not apply to this recovery by a settlement class.” Joint App., Vol. 23,
at 5360.
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Critically, the Kansas district court’s reasoning was in response to Watts Guerra’s
objection, not to any of the remaining Minnesota Appellants—indeed, it was only Watts
Guerra and another law firm (Bassford) that argued that the JPAs should apply, an
objection which was first considered and rejected by the Kansas Special Master in her
November 2018 Fee Allocation R&R. At oral argument, Minnesota Appellants accepted
the legal premise that they were required to either adopt Watts Guerra’s objections
explicitly or state those objections to the district court themselves for us to review them
here. Oral Argument, No. 19-3008, at 1:08:00–1:10:00 (10th Cir., dated March 10,
2021). Reviewing the record before us now, however, we find that neither Byrd nor
Shields adequately did so. See id., Vol. 22, at 4951–57 (making few, if any arguments,
and merely “request[ing] the opportunity to speak at the [attorney fee allocation] hearing
on December 17, 2018”); id. at 5083–86 (making perfunctory arguments without mention
of the JPAs, though purporting to join “the legal argument and objections presented by
. . . Watts Guerra” “[f]or [the] sake of brevity”).
Thus, since Watts Guerra exited this appeal, and the remaining Minnesota
Appellants failed to argue the existence of plain error as to Issue 1 here, we conclude that
their arguments concerning this issue are effectively waived on appeal. See, e.g., In re
Rumsey Land Co., LLC, 944 F.3d 1259, 1271 (10th Cir. 2019) (concluding that an
appellant “effectively” waives an argument by failing to argue plain error); Richison,
634 F.3d at 1131 (“[T]he failure to argue for plain error and its application on appeal . . .
surely marks the end of the road for an argument for reversal not first presented to the
district court.”); McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (identifying
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effective waiver when an appellant fails to argue plain error in an opening brief).
Notwithstanding this effective waiver, we think the merits militate against Minnesota
Appellants and see no need to rest our decision on Issue 1 solely on preservation grounds.
b. The Joint Prosecution Agreements Do Not Govern
Turning to the merits of the Kansas district court’s December 2018 Fee Allocation
Order, we agree that the JPAs themselves do not apply to the class action settlement
context.
At the outset, we acknowledge that we have reservations about—and tend to
disagree with—the Kansas district court’s reasoning to the extent that the court concluded
that it possessed inherent authority to override the JPAs. The JPAs are meaningfully
dissimilar to the contingent-fee contracts.47 While “contingent fee arrangements are . . .
subject to the courts’ supervision,” Cooper, 719 F.2d at 1505, it does not stand to reason
that all contracts are. In particular, not all contracts implicate equitable considerations
47
As we have explained, the equitable doctrines that empower courts to
police against unjust enrichment in common fund cases enable them to review
contracts—such as the contingent-fee contracts in this case—that unjustly enrich certain
attorneys at the expense of others who contributed to the ultimate recovery. See FED. R.
CIV. P. 23(h) advisory committee’s notes to 2003 amend. (explaining that courts can
adjust the fee award to ensure that the overall fee is “fair” and “equitable” where
“individual fee agreements between class counsel and class members . . . . have
provisions inconsistent with those goals” (emphasis added)); Piambino v. Bailey,
610 F.2d 1306, 1327–28 (5th Cir. 1980) (recognizing that conflicts between attorneys and
clients can result in inequitable, unreasonable fee awards); see also Boeing, 444 U.S.
at 478 (recognizing the common fund as an equitable doctrine); Swedish Hosp., 1 F.3d
at 1268 (recognizing the equitable benefits of applying the percentage-of-the-fund
method to common fund cases). That is especially true in this case where IRPA attorneys
sought to enforce contracts between themselves and their clients against non-signatory
counsel.
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equally. Cf. McCutchen, 569 U.S. at 100 (“The agreement itself becomes the measure of
the parties’ equities; so if a contract abrogates the common-fund doctrine, [neither party]
is . . . unjustly enriched by claiming the benefit of its bargain.”).
Where equitable considerations apply less forcefully or clearly—such as when a
contract between attorneys shifts fees between those same attorneys, and not their
clients—courts should, at the very least, explain why equitable principles trump “[t]he
principle that contractual limitations provisions ordinarily should be enforced as written.”
Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99, 108 (2013); cf. 1 Rossi,
supra, § 4:3 (“Where attorneys jointly representing a client have an agreement as to the
method of dividing the overall fee, the agreement should control, at least where there is
no breach of the agreement and no violation of the applicable rule on fee splitting.”
(footnotes omitted)); id. (suggesting that there are limited circumstance where, ordinarily,
“a court may refuse to recognize such a fee-sharing agreement [that is, an agreement
between ‘attorneys jointly representing a class of plaintiffs in class action litigation’],”
specifically, “if [the agreement] does not provide for a division of fees in accordance with
disciplinary rules or some other substantive requirement governing conditions of
compensation”); cf. also id. 7:10 (“It has been said that ideally, the allocation of a fee
award among class counsel is a private matter to be handled among the attorneys. . . .
However, a court need not be bound by an agreement between counsel as to the
allocation of fees.” (footnotes omitted)).
After all, courts generally “cannot go outside an . . . agreement” and re-write a
contract, let alone nullify its legal effect. Fru-Con Const. Corp. v. KFX, Inc., 153 F.3d
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1150, 1156 (10th Cir. 1998) (quoting Bydalek v. Brines, 947 S.W.2d 135, 142 (Mo. Ct.
App. 1997)); see also Dunn v. H.K. Porter Co., 602 F.2d 1105, 1111 (3d Cir. 1979)
(noting that “[t]he strong judicial reluctance to enforce the terms of a judicially fashioned
bargain upon the parties” sometimes “presses in favor of honoring the express terms of
the fee agreement”). Nevertheless, we need not decide whether the Kansas district court
exceeded the scope of its equitable powers because the JPAs, as written, apply only to
individual recovery—not class recovery.
In other words, the agreements comprised of the JPAs do not “govern[],”
McCutchen, 569 U.S. at 99, here—in a circumstance they did not contemplate—
specifically, one involving a class recovery. Under the June 2015 Joint Prosecution
Agreement, certain IRPA attorneys agreed to cooperate with class counsel and surrender
a portion of their fees to compensate class counsel, via a “Common Benefit Assessment,”
for mutually beneficial efforts. Joint App., Vol. 13, at 3138–39. The agreement defined
a “Common Benefit Assessment” as a “common benefit fee and expense assessment
ordered by a state or federal MDL court in connection with a state or federal MDL.” Id.
at 3136. As well, the JPA stated that “the Parties agree that if and as such clients are
entitled to any payment from Syngenta in connection with settlement of or judgment on
such clients’ Syngenta Claims, such clients will be subject to 100% of the then-applicable
Benchmark Common Benefit Assessment.” Id. at 3138. The agreement defined the
“Benchmark Common Benefit Assessment” as the “benchmark common benefit fee and
expense assessment ordered by the Federal MDL Court in connection with the Federal
MDL.” Id. at 3136.
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Yet, the June 2015 Joint Prosecution Agreement did not expressly contemplate a
class action settlement, as no court had certified a class. That does not mean that the June
2015 Joint Prosecution Agreement did not anticipate attempts to secure class
certification—it did. But the agreement expressly stated that none of the federal MDL
co-leads would “propose to certify any litigation or settlement class that include[d]” the
relevant Minnesota IRPA clients. Id. at 3146. To boot, it provided that “if any of the
Federal MDL Co-Leads seek to certify any litigation or settlement class, such co-lead(s)
will expressly exclude from his/their proposed class definition(s), and will advocate for
the exclusion and oppose the inclusion of, all Excluded Clients.” Id. (emphases added).
The agreement also obliged class action counsel to abstain from “interfer[ing] with or
alter[ing] the terms and conditions of any fee agreement” with the relevant Minnesota
IRPA clients. Id. In exchange, the relevant Minnesota IRPAs would refrain from
opposing class certification. See id. Simply, the JPA contained no language tethering an
unforeseen class action settlement to the attorneys’ fees assessments.
The parties recognized as much, as did the Kansas district court. On June 22,
2015, co-lead counsel submitted to the Kansas district court a final, revised proposed
Common Benefit Order incorporating the June 2015 Joint Prosecution Agreement. No
party objected to the proposed order. Then, just over one month later, the Kansas district
court entered the Common Benefit Order. Tracking co-lead counsel’s proposed
submission, the Common Benefit Order contained the following language making clear
that the JPA’s assessment language did not apply to a class settlement:
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In the event that there is a class settlement, recovery or judgment in favor of
the class, no assessment pursuant to this Section will be made, either for
attorneys’ fees or for expenses, individually from any class member or
his/her/its individual attorney as to the portion of any class recovery
distributed to that individual class member if the class member remains in
the class (i.e., does not opt-out of the class). Instead, all fees and expenses
for that class member will come out of the overall class recovery funds
provided by defendants, as approved by the Court, or as otherwise Ordered
by the Court. The relationship between class counsel fees and costs obtained
through any class settlement or judgment and the Common Benefit Fund will
be addressed, if necessary, by later order of the court.
Id., Vol. 21, at 4804.
The January 2016, First Addendum’s terms underscore this conclusion that the
June 2015 Joint Prosecution Agreement did not reach class recovery. The First
Addendum contemplated fee-sharing in the limited context of a Minnesota class. Under
its terms, Minnesota counsel agreed to pay a “33 1/3% of the attorneys’ fees awarded in
all [Minnesota] MDL Class Actions” to the co-lead counsel. Id., Vol. 13, at 3164. But
even in that circumstance, the First Addendum did not grant “[Minnesota] MDL Class
Action[s]” a national reach, defining that term to mean “any action pursued in the
[Minnesota] MDL Court.” Id. at 3162.
And if a court declined to certify the Minnesota class, the First Addendum
expressly stated that only
[t]o the extent that class certification of a [Minnesota] MDL Class Action is
denied and/or Additional Minnesota Counsel have been, are engaged to or
otherwise decide to pursue cases for Producers or Non-Producers in one or
more individual actions, Additional Minnesota Counsel hereby join in the
[JPA] and are subject to all of the same rights and obligations of the
Remele/Sieben Group including, but not limited to, the assessments on
individual cases set forth therein.
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Id. at 3166 (emphasis added). So, essentially, the First Addendum did account for a
Minnesota class—in which case, a fee-sharing arrangement would apply. Otherwise, it
paralleled the June 2015 Joint Prosecution Agreement and provided assessments only on
individual cases. And the First Addendum, like the June 2015 Joint Prosecution
Agreement, said nothing of the nationwide class recovery at issue here.
Byrd’s own submissions before the Kansas district court reflect this
understanding. In its objection to the Kansas Special Master’s R&R, Byrd mentions that
the case on which the Syngenta litigation was modeled “was not certified as a class.” Id.,
Vol. 22, at 4954. As a result, Byrd complained that it “worked for years with [its]
referring lawyers who had nothing but our contingency fee promise with our clients as the
primary avenue to be compensated for the time and efforts to hold Syngenta
accountable.” Id. at 4954–55 (emphasis added). Continuing, Byrd averred that “[u]ntil it
was decided that the settlement claims process was to be worked as a class, our clients
had zero intention of being in a class.” Id. at 4955. Byrd did not represent that the June
2015 Joint Prosecution Agreement guaranteed it payment. To the extent Byrd mentioned
the agreement at all, it claimed that it “account[ed] for a commingled world should the
Court certify a class, and that agreement was summarily discarded after the global
settlement was reached.” Id. at 4957 (emphasis added).
Any doubt about the June 2015 Joint Prosecution Agreement and First
Addendum’s inapplicability is resolved by the Settlement itself. Of course, the
Settlement bound the plaintiffs and Syngenta, not the attorneys. But it was negotiated by
leadership firms (in consultation with others) and thus evidences the firms’ fee-award
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expectations going forward. With that in mind, section 7.2.1 of the Settlement provides
that “Settlement Class Counsel and other counsel representing Class Members who
performed work for the benefit of Class Members shall make Fee and Expense
Applications” to the Kansas district court. Id., Vol. 5, at 1089. The Settlement further
advised that fee and expense awards “shall be paid from the Settlement Fund,” id., not
assessed against individual claims, as per the June 2015 Joint Prosecution Agreement.
Therefore, having carefully considered the June 2015 Joint Prosecution Agreement
and First Addendum’s plain terms and context, and the Settlement, we are satisfied that
they simply do not apply to the nationwide class action fee award at issue here.
Moreover, we note as background to our next discussion that Minnesota Appellants do
not seek to undo the Settlement that the JPAs did not contemplate. Indeed, the source of
their fee is the $503 million apportionment from the Settlement. Fundamentally, their
argument is that we should retroactively graft the fee-sharing mechanisms expressed by
the JPAs—which contemplated a pre-class-settlement world—onto the fee
apportionments tailored for a post-class-settlement paradigm. That is, they attempt to
transplant what might have been a reasonable apportionment of fees under one scenario
into a context radically transformed by the global class settlement.
Beyond trumpeting the JPA’s efforts to “promote cooperation and coordination,”
Minn. Aplts.’ Opening Br. at 35, Minnesota Appellants offer no argument as to why the
JPAs, even if non-binding, should govern the district court’s reasonableness-driven
assessment of the fees. Nor have they developed a fulsome argument that explains why
the JPAs—like the Fee-Sharing Agreement between certain firms—were “critical to the
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achievement of a settlement in this litigation,” Joint App., Vol. 21, at 4800, an
undoubtedly uphill battle given that the $217,000,000 Kansas class action jury verdict
prompted Syngenta to return to the settlement table.48 Where litigants do not advance a
meaningful theory of error, we “will not go hunting” for it. Voulgaris, 2023 WL ---, Slip.
Op. at 9. In sum, Minnesota Appellants have therefore failed to demonstrate that the
district court abused its discretion in assigning the JPAs little weight.
c. The Minnesota State Court Reasonably Allocated the Fees
It seems that Minnesota Appellants’ JPA-related arguments are nothing more than
indirect challenges to the Kansas district court’s abrogation of their contingent-fee
agreements and its consideration of the Johnson factors. Indeed, Minnesota Appellants
stated at oral argument that their JPA-focused argument is one about the Johnson factors
the Kansas district court considered in allocating fees; their argument is similar—though
not identical—to Kansas Appellants’ contingent-fee-agreement theory we earlier
disposed of above. Both of these groups of appellants attempt to secure a fee-award
redux. See Oral Argument, No. 19-3008, at 1:21:00–1:23:27 (10th Cir., dated March 10,
2021) (Minnesota Appellants stating that “[e]ven if the JPA isn’t controlling in this case
it should at least provide some guidance to the district court”; referencing the sixth
48
Minnesota Appellants contend that “[t]he district court never explained
why the ex-post [Fee-Sharing Agreement] better reflected an equitable allocation than the
ex ante JPAs.” Minn. Aplts.’ Opening Br. at 35. But the Special Master’s November
2018 Fee Allocation R&R expressly identified the equitable distinctions between the Fee-
Sharing Agreement and the JPAs. And, in its December 2018 Fee Allocation Order, the
Kansas district court observed that the Special Master’s R&R addressed the issue of
whether the JPAs should govern the awards “at some length” and “agree[d] with [its]
analysis.” Joint App., Vol. 23, at 5360.
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Johnson factor to argue that the JPA and the Addendum should have been considered by
the court; and agreeing that the Addendum by its terms only applied to individual cases
and not class settlements). Thus, to the extent Minnesota Appellants argue that the
Kansas district court’s disregard of contingent-fee agreements and the JPA and the
Addendum resulted in an erroneous misapplication of the Johnson factors, that argument
fails for a similar reason that Kansas Appellants’ Issue 1 did above: the Minnesota state
court’s allocation tracked the Johnson factors.49 And, accordingly, the Kansas district
court likewise did not err in its consideration and approval of that allocation.
The Minnesota state court awarded the largest portion of the Minnesota Common
Benefit Pool to the Co-Lead Counsel firms because “they made the largest investment in
the Minnesota Syngenta litigation.” Joint App., Vol. 29, at 6720–21. That investment
consisted of over 38,000 hours of work and nearly $6 million in litigation funding; the
49
Notably, neither of the Minnesota Appellants objected to the May 2019
Minnesota allocation order’s consideration of the Johnson factors. Byrd did not bother to
object at all, which in view of our strong waiver doctrine might explain the circuitous
route the Minnesota Appellants charted in ultimately contesting the application of the
Johnson factors. For its part, Shields explicitly “d[id] not challenge the judgment of the
Minnesota court in making [its] allocation.” Joint App., Vol. 29, at 6870. Rather,
Shields concededly argued that its “objection” was better read as a motion for
reconsideration, one challenging the Kansas district court’s four-pool allocation structure.
Id. at 6870–71. In explaining its tardy motion, Shields suggested that it had to “play the
game and see the result” before it could “critique” the order. Id. at 6871. In other words,
Shields tabled its ex ante objection so that it could object ex post. The Kansas district
court correctly observed that Shields could not “have it both ways” by “go[ing] along
with the Court’s approach and roll[ing] the dice hoping for a good result,” only to
“complain about the approach if ultimately dissatisfied with the outcome.” Id. at 6871–
72. Cf. Jones v. Flowers, 547 U.S. 220, 231 (2006) (noting that the constitutionality of
notice procedures is assessed ex ante). Indeed, Shields’s strategy undercuts the orderly
and efficient judicial process that objection opportunities are designed to ensure.
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Minnesota Co-Lead Counsel “took lead roles in the substantive legal work of developing
claims on behalf of all plaintiffs, briefing and arguing many motions, orchestrating
discovery, working cases up for trial, and conducting the trial of the Minnesota class
action.” Id. at 6721. Thus, because of their “great legal skill, diligence, . . . willingness
to take risks on behalf of their clients,” and critical role in the settlement efforts, the Co-
Lead Counsel firms comprised Tier One in the state court’s allocation order. Id. at 6740–
41.
Meanwhile, firms like Byrd and Shields, both of whom the Minnesota state court
classified as “Tier Five Firms,” directed their efforts toward their individual clients, not
the class. Id. at 6722. Though recognizing that Tier Five work “contributed to the
positive outcome,” the Minnesota state court noted that it was “not . . . as significant to
the ultimate settlement as that performed at the highest tier.” Id. at 6740. In searching
for a way to measure the common benefit value of Tier Five work, the Minnesota state
court focused on the number of completed PFSs. See id. at 6742. The sheer numerosity
of PFSs submitted conferred a common benefit by placing litigation pressure on
Syngenta. For this reason, the Minnesota state court concluded that “[t]he common
benefit conferred by the total group of completed and submitted PFSs is best measured on
a per-PFS basis, not by awarding each firm its claimed lodestar.” Id. Consistent with the
equitable principles we previously described, the Minnesota state court commented that
the lodestar method both failed to capture the fact that “some firms were more efficient
and cost-effective than others in their approach to completing PFSs” and would have the
effect of rewarding firms for “incomplete . . . work that conferred no common benefit.”
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Id. And though Co-Lead Counsel recommended a $250 flat fee for the completion of the
relatively simple PFS, the Minnesota state court increased the flat rate to $301.63 to bring
the fee award “within $1,000,000 of the collective total lodestar for PFS-related work by
Minnesota pool firms.” Id. at 6743.
As should be abundantly clear, in addition to complying with our “hybrid” model,
see Chieftain Royalty, 888 F.3d at 458–59, the Minnesota state court considered the
firms’ (1) time and labor; (2) the novelty and difficulty of their legal work; (3) the
requisite skill to perform the work; (4) the customary fee; and (5) the results obtained, see
Johnson, 488 F.2d at 717–18. Accordingly, we are satisfied that the Minnesota state
court implicitly—but thoroughly—considered the most applicable Johnson factors. And,
to the extent the Kansas district court’s limited review of the Minnesota state court’s
order could concern us, the harmlessness of the Kansas district court’s decisions dispels
any worries.50 See Wright, 826 F.2d at 943 (“An abuse of discretion[] does not require
reversal if that abuse amounted to harmless error.”) That is, “other reasoning already
contained explicitly or implicitly” in the record upon which the district court’s judgment
was based, including, of course, the Minnesota state court’s thorough and considered
review of the issues, “supplied sufficient grounds for affirmance notwithstanding [any
such] error.” Groberg v. Astrue, 505 F. App’x 763, 765 n.1 (10th Cir. 2012)
(unpublished) (citing Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005)).
50
We elaborate infra on our harmless-error rationale—as applied to like
circumstances—in addressing the sole challenge of the Illinois Appellants.
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In sum, we conclude Minnesota Appellants’ Issue 1 challenge is effectively
waived. Nevertheless, it also is unavailing for the reasons supplied here. Minnesota
Appellants have not met their burden of showing that the fee award amounted to a
harmful abuse of discretion.
2. The IRPA Pool Allocation
Next, on Issue 2, Minnesota Appellants contend that the Kansas district court’s
12% allocation to the IRPA pool is far too small. They argue that the 12% allocation left
them “drastically undercompensated,” even as the court acknowledged that retained
counsel meaningfully contributed to the settlement. Minn. Aplts.’ Opening Br. at 35–36.
Minnesota Appellants assert that the court’s allocation is especially egregious given that
represented plaintiffs “will recover more than 50% of the total recovery by all claimants.”
Id. at 37. Invoking the eighth Johnson factor (i.e., the amount involved and the results
obtained), Minnesota Appellants argue that “[a]llocating 12% of fees to counsel whose
clients recover 50% of the settlement defies the principle that attorney compensation
reflect the results obtained for clients.” Id.
These complaints, however, are unavailing. Considering our deferential standards
stated above, Minnesota Appellants fail to demonstrate how the Kansas district court
erred in its specific fee allocations to the IRPA pools. Their arguments as to the pool-
specific fee allocations are nothing more than invitations to second-guess the district
court’s discretionary judgments, and we are not inclined to do that. The record shows
that the court’s decisions were based on a reasonable view of the procedural history of
the litigation and the relative contributions of individual firms and regional groupings of
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firms and comported with our “hybrid” model. See Zisumbo, 801 F.3d at 1207; McInnis,
458 F.3d at 1148; Case, 157 F.3d at 1249; see also Passantino v. Johnson & Johnson
Consumer Prods., Inc., 212 F.3d 493, 518 (9th Cir. 2000) (“Given the broad discretion to
which attorneys’ fees determinations are entitled on appellate review, we decline to
second-guess the district court’s decision.” (citation omitted)); cf. Highway Equip. Co. v.
FECO, Ltd., 469 F.3d 1027, 1037 (Fed. Cir. 2006) (“FECO has shown no clear error in
the district court’s findings and we decline to second-guess the district court’s judgment
that the defendant is not entitled to attorney fees based on litigation misconduct.”);
Kattan by Thomas v. District of Columbia, 995 F.2d 274, 279 (D.C. Cir. 1993) (“We are
in no position to second-guess the district court’s judgment as to whether the District of
Columbia’s tactics were unreasonable enough to warrant the award of extra fees.”), as
amended (June 30, 1993).
Much like Kansas Appellants, Minnesota Appellants fail to engage with the well-
thought-out reasoning of the Kansas district court. Thus, we do not find an abuse of
discretion as to the Kansas district court’s pool allocations.
3. The Minnesota Common Benefit Allocation
Lastly, on Issue 3, Minnesota Appellants similarly disagree with and complain
about the Kansas district court’s allocation to the Minnesota common benefit pool, which
they argue was unreasonably low. To start, they argue the court erred by giving
“significant weight” to the “February 23, 2018 [Fee-Sharing] [A]greement among three
groups—Kansas CLC, Minnesota Class Counsel, and Clark/Phipps—[which] purported
to allocate 50%, 12.5 %, and 17.5% of fees to each group, respectively.” Minn. Aplts.’
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Opening Br. at 38. More broadly, Minnesota Appellants argue that the court’s failure to
“conduct[] a lodestar calculation” in relation to the Minnesota common benefit pool
allocation “alone justifies vacating the district court’s award here.” Id. at 39 (footnote
omitted). Appellants specifically contend that the Minnesota common benefit pool, when
cross-checked against the applicable lodestar amounts, ended up imposing so-called
punitive fractional multipliers on counsel assigned to this pool. Indeed, Minnesota
Appellants argue that the Kansas district court acknowledged that Minnesota counsels’
contributions to the Syngenta litigation outstripped those of Illinois counsels’
contributions. Yet, according to these lodestar-based calculations, Illinois counsel
received fee awards closer to their lodestars than Minnesota counsels’ fee awards, which
is, in their view, an unreasonable and arbitrary result.
At bottom, Minnesota Appellants complain about the Kansas district court’s
consideration of the February 23, 2018, Fee-Sharing Agreement, including its use of
lodestar figures, and the particular allocations among the common benefit pools. But
their arguments never rise above subjective sentiments about the quality or value of their
own work. As we said in Brown, a district court need not evaluate an attorney’s time and
labor “using the lodestar formulation when, in the judgment of the trial court, a
reasonable fee is derived by giving greater weight to other factors, the basis of which is
clearly reflected in the record.” 838 F.2d at 456 (footnote omitted).
In that vein, we reiterate that the record reflects an extensive—and arguably
exhaustive—fee allocation process overseen by numerous courts and numerous
individuals, judges and experts alike. And recall that, as part of this process, both the
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Kansas district court and the Kansas Special Master justified in detail why they viewed
Minnesota as the second-most important region in the overall Syngenta litigation—a
relative valuation that was supplemented by the Minnesota state court’s valuation of
individual attorneys’ or firms’ relative contributions to the Minnesota litigation.
Minnesota Appellants are unpersuasive in asserting that this comprehensive process
represented an abuse of discretion; they cannot carry their burden by focusing on the
purported misuse of or disregard for lodestar figures given—as we have detailed supra—
those figures’ lesser significance in the common fund context and under a percentage-of-
the-fund fee allocation approach. See Gottlieb, 43 F.3d at 482–83; Brown, 838 F.2d at
453–55; Uselton, 9 F.3d at 853; see also Gudenkauf v. Stauffer Commc’ns, Inc., 158 F.3d
1074, 1083 (10th Cir. 1998); Law, 4 F. App’x at 751.
More specifically, as to the February 23, 2018, Fee-Sharing Agreement, we see no
error as to the Kansas district court’s consideration of this agreement when fashioning the
fee allocations. As our sister circuit explained:
Since lead counsel is typically well-positioned to weigh the relative merit of
other counsel’s contributions, it is neither unusual nor inappropriate for
courts to consider lead counsel’s proposed allocation of attorneys fees . . .
where the district court retains the ultimate power to review applications and
allocations and to adjust them where appropriate. Suffice it to say that a
standard counseling consideration of lead counsels’ allocation of fees does
not in any way limit the district court’s ability to engage in a meaningful
review of the fairness of the allocation and the overall reasonableness of fees.
Since our review of the record leads us to conclude that such a review
occurred here, we see no abuse of discretion.
Victor v. Argent Classic Convertible Arbitrage Fund L.P., 623 F.3d 82, 90 (2d Cir.
2010); see also In re Copley Pharm., Inc., Albuterol Prods. Liab. Litig., 50 F. Supp. 2d
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1141, 1149 (D. Wyo. 1999) (noting that, because lead counsel managed the plaintiffs’
case, “the Court should and must rely, to a degree, on the voice of Lead Counsel on the
responsibilities of class counsel members, quality of their work, and novelty of issues
involved”), aff’d and remanded sub nom. by In re Copley Pharm., Inc., 232 F.3d 900,
2000 WL 1508841 (10th Cir. 2000) (unpublished); cf. In re OCA, Inc. Sec. & Derivative
Litig., No. CIV.A.05-2165, 2009 WL 512081, at *23 (E.D. La. Mar. 2, 2009) (“In
securities cases governed by the PSLRA, courts may give deference to lead counsel and
lead plaintiff’s allocation of attorneys’ fees to non-lead counsel for work done after the
appointment of lead counsel at the direction of lead counsel.” (citing In re Cendant Corp.
Sec. Litig., 404 F.3d 173, 197–98 (3d Cir. 2005))).
Only when the district court strays from its duty to ensure that the attorneys’ fees
award is fair and reasonable do we find an abuse of discretion in the court’s weighing of
lead counsel’s proposals. We are not the first court of appeals to consider this issue. In
In re High Sulfur Content Gasoline Products Liability Litigation, 517 F.3d 220 (5th Cir.
2008), the Fifth Circuit explained that “a district court can in its discretion appoint a
committee of plaintiffs’ counsel to recommend how to divide up an aggregate fee award.”
Id. at 227. Certainly, reasoned the Fifth Circuit, a district court’s appointment of a
committee does not give it license to abdicate “its responsibility to closely scrutinize the
attorneys’ fee allocation, especially when the attorneys recommending the allocation
have a financial interest in the resulting awards.” Id. At all times, our sister circuit
instructed, reasonableness must serve as the district court’s guiding star. See id.142
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And we have no reason to doubt that reasonableness played that role here. The
Kansas district court did not uncritically defer to the Fee-Sharing Agreement, which the
Kansas Special Master acknowledged was “not binding.” Joint App., Vol. 21, at 4799.
Rather, in keeping with both the Johnson factors and the equitable principles animating
the common fund doctrine, the Kansas Special Master concluded that the Fee-Sharing
Agreement merited analytical weight because its signatories “w[ere] critical to the
achievement of a settlement in this litigation.” Id. at 4800.
The Kansas district court agreed that the Fee-Sharing Agreement evidenced that
the “Kansas and Minnesota leadership both believed that the Kansas attorneys should
receive a significantly greater award of fees than the Minnesota attorneys.” Id., Vol. 23,
at 5377. Therefore, given the district court’s reasons for weighing the Fee-Sharing
Agreement, we see no reason why it would be error for the Kansas district court to
choose to give weight to that Fee-Sharing Agreement, in light of its broad discretion
when considering attorneys’ fees awards. See FED. R. CIV. P. 23(h) advisory committee’s
notes to 2003 amend. (“Courts have also given weight to agreements among the parties
regarding the fee motion, and to agreements between class counsel and others about the
fees claimed by the motion.”).
Under our deferential standard of review, Minnesota Appellants’ arguments are
insufficient—especially when the record reflects that the Kansas district court’s myriad
allocation proceedings and orders share one, overriding concern: ensuring all attorneys’
fee awards are reasonable. Minnesota Appellants have not provided us with any
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argument that shows otherwise. Thus, we find its arguments on Issue 3 to be without
merit.
F. Byrd and Shields
We now turn to Minnesota Appellants’ additional challenges, which they bring,
not as “Minnesota Appellants,” but as “Byrd and Shields.” In this set of challenges, the
two law firms disagree with the Kansas district court’s July 2019 Expense Order;
December 31, 2018, Fee Allocation Order; and July 2019 Minnesota Pool Allocation
Order. Particularly, Byrd and Shields ask us:
(1) “Did the [Kansas] district court err by awarding expenses to firms for
outside, third-party contractors where the court a) had excluded them
from the definition of common benefit expenses; and b) denied
Appellants reimbursement for temporary in-house workers who
performed the same work?” Byrd & Shields Opening Br. at 2.
(2) “Did the district court err in its allocation of attorneys’ fees within and
among the three pools?” Id. 51
51
In their supplemental briefing, Byrd and Shields raise a third issue, namely
that the district court abused its discretion when, on January 2021, it re-allocated the
amounts awarded to the four pools “without complying with [Federal Rule of Civil
Procedure] 23(h).” Byrd & Shields Suppl. Br. at 2. Appellant Hossley-Embry
“adopt[ed] and incorporate[d] by reference” Byrd and Shields’s supplemental brief.
Hossley-Embry Suppl. Br. at 2. Consistent with our Supplemental Briefing Order, we
confine our review here to how the Kansas district court’s IRPA pool allocation order
affected “the fee issues already briefed by the parties.” Suppl. Briefing Order at 1. After
reviewing the record, we find Byrd and Shields’s Rule 23(h) argument better described as
a challenge to the Watts Guerra Settlement and, therefore, outside the scope of our review
in the instant appeal. See In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Doc.
4524 at 2 (Mem. and Order, entered Dec. 14, 2020) (discussing Byrd and Shields’s
challenge to the Watts Guerra Settlement and Article III standing concerns).
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Byrd and Shields also contend that the district court flip-flopped its position
regarding the enforceability of private agreements entered into between attorneys by
reallocating funds from the three common benefit pools to the IRPA pool for Watts
Guerra’s sole benefit pursuant to its settlement agreement with other firms. Thus, Byrd
and Shields argue that,“[t]o the extent the Watts Guerra settlement agreement was
binding on the district court, the JPAs signed by Appellants were no less so.” Byrd &
Shields Suppl. Br. at 5. After providing additional background on the Kansas district
court’s Expense Award, we address each issue that we have jurisdiction to consider,52
and we affirm.
1. The Expense Award
On Issue 1, Byrd and Shields primarily target the Kansas Special Master’s alleged
expansion of the definition of “common benefit” work. By way of background, in its
July 2015 Common Benefits Order, the Kansas district court erected a basic scheme for
reimbursing counsel for common benefit litigation expenses. Recall that, under this
order, the district court advised that for the purposes of reimbursement it would only
consider “reasonable expenses incurred.” Joint App., Vol. 3, at 643. The district court
instructed counsel to submit expenses to Lead Counsel in accordance with specific
guidelines. Those guidelines accounted for expenses related to: (1) travel; (2) telephonic
52
Reflecting the directions of our Supplemental Briefing Order, we confine
our discussion of the Kansas district court’s approval of the Watts Guerra Settlement to
its implications for the court’s alleged disregard of the JPAs.
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communications; (3) shipping, postage, courier, and delivery charges; (4) faxing services;
(5) copying; and (6) computer research.
Over three years later, in November 2018 and, later, as part of her April 2019
Expense R&R, the Kansas Special Master invited counsel to submit expenses for
reimbursement consideration, describing the Kansas district court’s July 2015 Common
Benefit Order as a “starting point” in her evaluation. Id., Vol. 21, at 4823. At that point,
the Kansas Special Master had reviewed the expense materials submitted to date and
communicated several important observations. First, she noted that firms had
collectively submitted a total of $21,156,330.06 in “miscellaneous” expenses. Id. at
4825. The Kansas Special Master thought some of those expenses—such as those related
to marketing, overhead, and client acquisition—to be non-reimbursable. Yet, other
costs—such as those “related to communications with existing clients regarding ongoing
litigation issues, including issues related to the structure, amount, and timing of any
potential settlement”—were potentially “reimbursable litigation expenses, because they
were necessary for the conduct of the litigation and, ultimately, facilitated the
settlement.” Id. at 4826.
Then, in its December 2018 Fee Allocation Order, the district court announced
that it “adopt[ed]” the Kansas Special Master’s November 2018 R&R, noting that “no
attorney ha[d] objected.” Id., Vol. 23, at 5380. The court specifically noted that it found
the Kansas Special Master’s “recommendations . . . reasonable and appropriate.” Id.
However, the court also stated that it would apply “the standards and limitations”
outlined in its July 2015 Common Benefit Order, advising that those terms would
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“govern” its “determination of reasonable expenses that may be reimbursed from the
settlement fund.” Id. Furthermore, the court relayed that “items not included in the [July
2015 Common Benefit Order] . . . generally constitute firm overhead, and items properly
considered overhead will not be reimbursed as reasonable expenses.” Id. at 5381.
The Kansas Special Master submitted an R&R on Expenses in April 2019. In
keeping with her November 2018 R&R and the Kansas district court’s December 2018
Fee Allocation Order, the Kansas Special Master recommended approving expenses for
“experts” whom the firms described “as assisting in getting information from existing
clients and/or the FSA [i.e., the U.S. Department of Agriculture’s Farm Services Agency]
in order to complete PFSs” and “contract employees,” including those who assisted
clients with PFSs or discovery. Id., Vol. 26, at 6016–17. The Kansas Special Master did
not, however, “recommend acceptance of requests for reimbursement of hourly rates or
salaries for law firm employees who performed such tasks,” because those “costs are
subsumed in attorneys’ fee awards.” Id. at 6017.
In response to these practical modifications, Byrd and Shields accuse the Kansas
Special Master and the Kansas district court of impermissibly expanding the definition of
“common benefit expenses.” Byrd & Shields Opening Br. at 9–10. Relying on the
guidelines established by the July 2015 Common Benefit Order, Byrd argues that it hired
temporary employees to work exclusively on the Syngenta litigation, tasking them with
procuring information from clients and the FSA to complete PFSs and respond to
discovery. Shields, too, argues that it initially submitted—but then withdrew—a “PFS
expense request for ‘in-house’ 1099 contractors who worked exclusively on Syngenta,”
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thinking it was more properly classified as “overhead.” Id. at 10. On the Kansas Special
Master’s recommendation, neither firm received reimbursement for these expenses.
In recommending denial of Byrd and Shields’s reimbursement request, the Kansas
Special Master noted that the Kansas district court’s guidance did not “prohibit[] or
discourage[]” submission of expenses related to applying for settlement benefits. Joint
App., Vol. 29, at 6833. Byrd, who conceded it “d[id] not object to the methodology”
governing expense reimbursements, failed to explain why “it could not have submitted
these expenses previously,” despite having the same guidance as all the other law firms,
said the Kansas Special Master. Id. As for Shields, the Kansas Special Master found the
fact that it initially submitted its temporary workers expenses undermined its subsequent
contention that it did not realize it could submit temporary expenses. These issues aside,
the Kansas Special Master explained that permitting either firm to revisit its decisions—
“long after the exhaustive expense review process . . . ended”—would invite every law
firm to submit additional expenses, “causing unnecessary delay” and “unfairly
prejudic[ing] the law firms that did not seek a second bite at the apple.” Id. at 6832.
The Kansas district court largely agreed with the Kansas Special Master’s
reasoning. With respect to Byrd, the district court effectively reasoned that even if Byrd
could bite the apple a second time (but it could not), it would not come away with a
greater expense award. That is because Byrd issued W-2s for its temporary workers,
instead of the 1099s used for independent contractors—a meaningful distinction because,
as the court put it, its “primary consideration in considering [expenses for employees] is
whether the work is more properly considered as attorney fee work or an expense.” Id. at
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6897. So, if, as with Byrd, the “firm did the work in-house, with its own employees,”
and “exert[ed] a level of control [over the workers] sufficient to demand treat[ing] [them]
as employees for tax purposes,” then the “reimbursement for this time should have come
through the attorney fee award process.” Id. at 6897–98.
Turning to Shields, the court offered the following reasoning: Shields “voluntarily
chose to submit this incurred cost [i.e., for contract workers who worked on Syngenta
matters] in its fee application instead of in its expense application,” though “there was no
reason to believe that such charges for contract workers could not support an award of
expenses.” Id. at 6900. And Shields “may not try the other route simply because it is
unhappy with the result of the route that it did choose.” Id. The court also found that
awarding Shields for its contract workers would potentially create a “double-dipping”
scenario, because Shields already received $643,980.05 for its work completing PFSs.
Id.
a. The Kansas District Court Provided Reasonable Notice That It Expanded the
Definition of “Common Benefit Expenses”
Byrd and Shields first contend that the July 2015 Common Benefit Order “should
be considered akin to the law of the case.”53 Byrd & Shields Opening Br. at 8. The law
53
Joint Appellees rightly note that Byrd and Shields did not raise an argument
regarding the applicability of the law of the case doctrine as to the July 2015 Common
Benefit Order before the Kansas district court and, therefore, have effectively waived it
and any related arguments through this forfeiture and their subsequent failure to argue
plain error on appeal. See Richison, 634 F.3d at 1131. Specifically, before the Kansas
district court, Shields “averred that it had been mistaken and pleaded for an opportunity
to claim its labor costs as expenses”—yet now Shields “insist[s] that the CBO [i.e., the
July 2015 Common Benefit Order] did not permit such recoupment and accuse[s] the
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of the case doctrine posits that a court may “decline the invitation to reconsider issues
already resolved earlier in the life of a litigation.” Entek GRB, LLC v. Stull Ranches,
LLC, 840 F.3d 1239, 1240 (10th Cir. 2016). The doctrine advances the laudable goal of
“maintain[ing] consistency . . . during the course of a single continuing lawsuit.”
Kennedy v. Lubar, 273 F.3d 1293, 1298 (10th Cir. 2001) (quoting 18 Charles Alan
Wright et al., FEDERAL PRACTICE & PROCEDURE: Jurisdiction § 4478 (1981)). But the
doctrine functions less as a mandate and more as a guiding norm: generally, “when a
court decides upon a rule of law, that decision should continue to govern the same issues
in subsequent stages in the same case.” United States v. Monsisvais, 946 F.2d 114, 115
(10th Cir. 1991) (emphasis added) (quoting Arizona v. California, 460 U.S. 605, 618
(1983)); accord Wilson v. Meeks, 98 F.3d 1247, 1250 (10th Cir. 1996) (“The doctrine is
considered only a rule of practice and is not a limit on a court’s power or authority.”).
Thus, the law of the case doctrine is fundamentally permissive, affording courts,
for example, “the discretion to entertain relitigation of settled issues when the failure to
do so would work ‘a manifest injustice.’” Entek, 840 F.3d at 1242 (quoting White v.
Murtha, 377 F.2d 428, 431–32 (5th Cir. 1967)). And, to the extent the law of the case
doctrine constrains a district court’s discretion at all, it certainly does not operate to
calcify the legal force of non-final orders like the July 2015 Common Benefit Order. See
Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011) (noting that we have
“declined to apply [the law of the case doctrine] to rulings revisited prior to entry of a
district court of contravening its own order.” Joint Aplees.’ Resp. Br. at 123–24
(emphasis omitted). Nevertheless, we exercise our discretion to review their argument.
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final judgment, concluding that ‘district courts generally remain free to reconsider their
earlier interlocutory orders’” (quoting Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225
(10th Cir. 2007))); id. at 1252 (confirming that the “law of the case doctrine [is]
inapplicable to reconsideration of interlocutory orders in the district court without regard
to the basis for reconsideration” and “reaffirm[ing] that . . . [the] doctrine has no bearing
on the revisiting of interlocutory orders”); cf. Elephant Butte Irrigation Dist. v. U.S.
Dep’t of Interior, 538 F.3d 1299, 1306 (10th Cir. 2008) (“[E]very order short of a final
decree is subject to reopening at the discretion of the district judge.” (quoting Price v.
Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005))).
In any case, we do not understand the district court’s decision-making to be
arbitrary as Byrd and Shields paint it. The Kansas Special Master observed that
guidelines established in the July 2015 Common Benefit Order were underinclusive
because they failed to account for all the expenses that furthered the settlement. Thus,
the Kansas Special Master recommended reimbursing expenses that advanced this goal—
in effect, recommending that the Kansas district court enlarge the definition of “common
benefit expenses” so as to not undercompensate attorneys. No attorney objected to the
Kansas Special Master’s recommendations, which the Kansas district court “adopt[ed].”
Joint App., Vol. 23, at 5380. So, even though the Kansas district court noted that the
“standards and limitations” contained in the July 2015 Common Benefit Order would
apply, id., its December 2018 Fee Allocation Order is reasonably clear that those
guidelines are not exhaustive. Other firms got the point and made submissions
accordingly. That Shields withdrew its initial request does not mean that either the
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Kansas Special Master or the Kansas district court acted arbitrarily. Sometimes, when
you play your cards wrong, you lose.
b. The District Court’s Expense Awards Were Reasonable
Byrd and Shields also contend that the Kansas district court erroneously
differentiated between “permanent salaried worker[s] . . . [who were] ‘shopped out’ and
not designated a[s] employee[s] for tax purposes”—who could be considered
“expenses”—and “temporary hourly worker[s] hired in-house”—who could not be
considered “expenses.” Byrd & Shields Opening Br. at 12. Byrd and Shields essentially
argue that the “court arbitrarily [granted and denied] expenses without any governing
methodologies.” Byrd & Shields Reply Br. at 5 (emphasis added).
We see it differently. According to Byrd and Shields’s own briefing, the Kansas
district court “relied on Byrd’s level of control over workers to deny [its] expense
reimbursement.” Byrd & Shields Opening Br. at 12. Thus, even Byrd and Shields
effectively recognize that the district court employed some kind of standard. For them,
the issue is not actually that the district court’s fee assessment was rudderless, it is that it
did not extend deeply enough into the facts. Thus, Byrd and Shields argue that “it was
incumbent on the court to consider the level of control other firms exerted over their
workers to determine whether they were ‘independent contractors’ (an expense) or
‘temporary employees’ (not an expense).” Id. They say that, instead of engaging in a
fact-intensive analysis, the Kansas district court “improperly accepted at face value the
labels firms attached to workers when labels are not dispositive.” Id. As a result, they
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claim that the district court ended up granting expenses to some firms but denying
expenses to others for substantively the same work.
These arguments are unavailing. To start, Byrd and Shields fail to rebut the
Kansas district court’s critical “double-dipping” rationale for denying their objections to
the Kansas Special Master’s R&R on expenses. Recall that, as we have narrated above,
in both Byrd’s and Shields’s cases, the Kansas district court noted that, regardless of the
timeliness of their expense applications or their characterizations of the work for which
they sought compensation, the firms already should have been allocated compensation
for that work through the attorneys’ fee process—and to allow these firms to additionally
obtain some kind of expense-related compensation would constitute, in effect, a double
recovery. Specifically, with respect to Byrd, the district court noted that the attorneys’
fee award process was designed to compensate it for the work done by its employees.
Likewise, regarding Shields, the district court concluded that Shields voluntarily looked
to the fee award process for compensation for the contract labor that contributed to its
PFS work and, to allow it to shift direction now and seek compensation for the same
work as reimbursement for expenses would (at the very least) generate “the specter of
double-dipping.” Joint App., Vol. 29, at 6900. Byrd and Shields leave the Kansas district
court’s findings completely unaddressed in this appeal, which, we note, proves to be fatal
to their challenge. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir.
2015) (“The first task of an appellant is to explain to us why the district court’s decision
was wrong,” which involves challenging “the reasons that were given by the district court
. . . .”).
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More substantively, “[a] request for attorney’s fees should not result in a second
major litigation.” Hensley, 461 U.S. at 437. The Kansas Special Master scrutinized each
firm’s petition and supporting materials. Notwithstanding this thorough review process,
we reiterate that reasonableness is the touchstone of our analysis. For that reason, a
district court does not abuse its discretion when awarding attorneys’ fees and expenses
unless it “renders an arbitrary, capricious, whimsical, or manifestly unreasonable
judgment.” Derma Pen, LLC v. 4EverYoung Ltd., 999 F.3d 1240, 1244 (10th Cir. 2021)
(quoting Burke v. Regalado, 935 F.3d 960, 1011 (10th Cir. 2019) (citation omitted)).
That the district court did not spearhead a fact-finding mission to determine the precise
nature of each firm’s relationship with its employees (or independent contractors) is not
the product of a “manifestly unreasonable judgment.” See id. We have no trouble
concluding that the district court reasonably exercised its discretion when it, together
with the Kansas Special Master’s intensive review, engaged in both a de jure and de facto
analysis of the expenses. Thus, for all these reasons, we find Byrd and Shields’s
arguments as to Issue 1 unavailing.
2. The Lodestar Figures
We now turn to Byrd and Shields’s penultimate challenge. In their view, they are
the victims of group work gone bad. Before the Kansas district court even allocated a
percentage of the fee award to the Minnesota pool, Byrd and Shields contend that
Minnesota CLC recommended a common benefit fee based on a lodestar computation
reflecting the work of the Minnesota attorneys, including Shields’s “time and lodestar
($5,240.683.25 in PFS work) and some of Byrd’s PFS time and lodestar.” Byrd and
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Shields Opening Br. at 13. Accordingly, in the sequence of events, Byrd and Shields
supplied Minnesota CLC their proposed fee allocations based on their lodestar figures
and then—not coincidentally, as they see it—the Kansas district court allocated
approximately $118 million to the Minnesota pool.
Thus, in the view of Byrd and Shields, the $118 million pool allocation included
their lodestars. But by the time the Minnesota state court disbursed the funds to
individual firms, Byrd and Shields contend that Minnesota CLC reversed course,
specifically by arguing that their PFS work—which contributed to the lodestar
computation resulting in the $118 million pool allocation—should be excluded from their
fee award. By their lights, the effect—if not the intent—of this shift in course was to
reduce the fee claim of Byrd and Shields to the pool funds and to increase the amount
available for others—notably, the Minnesota CLC. In ultimately approving “these
shenanigans,” Byrd and Shields contend that the district court abused its discretion. Id. at
14. As further evidence of the unreasonable allocation, Byrd and Shields complain that
the Kansas district court’s allocation scheme awarded certain Illinois firms—which did
not significantly contribute to the common recovery—a higher PFS award than Byrd and
Shields could claim given the $301 flat fee.
We need not spend much time on this issue as Byrd and Shields’s premise—that
the lodestars were determinative in the district court’s December 2018 Fee Allocation
Order—is wrong. When the Kansas Special Master initially recommended the district
court allocate 24% of the fee award to the Minnesota pool, she assessed the litigation’s
history, the Fee-Sharing Agreement, her own and the Illinois Special Master’s experience
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in connection with the settlement negotiations and implementations, and “the available
data regarding attorney hours incurred.” Joint App., Vol. 21, at 4815. The Kansas
Special Master specifically noted that “[t]here is some inconsistency and dispute among
firms as to what hours are properly considered ‘Common Benefit Hours.’” Id. at 4815
n.7. In keeping with the equitable principles undergirding the common-fund doctrine, the
Kansas Special Master explained that “[w]hat is most relevant in assessing contributions
that benefitted the Class is not the characterization of the time, but the actual tasks
performed.” Id. (emphases added). Unsurprisingly, the Kansas district court did not so
much as mention a lodestar calculation in connection with the initial Minnesota
allocation. So, contrary to Byrd and Shields’s contentions, the lodestars did not shape the
initial Minnesota allocation.
Moreover, Byrd and Shields crucially “ignore that the basis for awarding fees for
PFS work from the common-benefit allocations was merely that it kept the ‘litigation
moving’ and ‘helped to push Syngenta toward settlement.’” Joint Aplees.’ Resp. Br. at
114 (quoting Joint App., Vol. 21, at 4817). And, as the Minnesota state court explained,
it largely agreed with Minnesota CLC’s “general approach” with respect to the PFS-
related work and its recommendation to compensate such work through a flat fee. Joint
App., Vol. 29, at 6738. Minnesota CLC justified the flat-fee approach through
explaining, among other rationales, that a flat-fee payment of $250 “for each completed
PFS . . . represents the best solution to recognize the common benefit value of all firms’
PFS efforts through a consistent payment methodology, while avoiding overpayment for
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inefficient work.” Id. at 6731 (emphasis added). As described by the Minnesota state
court, in substance, Minnesota CLC reasoned as follows:
[C]ompleting thousands of PFSs would serve the common benefit by
showing Syngenta that defeating class certification would not end the
litigation[;] [o]nce critical mass was reached (that is, by completion and
delivery of a sufficiently large number of PFSs to place pressure on
Syngenta), the effect of any single additional PFS became of diminishing
benefit to the entire group of plaintiffs.
Id. at 6725.
Minnesota CLC did not stop there, as it further reasoned, in deciding to
recommend a flat fee for each PFS filed, that:
[D]ifferent firms performed PFS-related work in different ways, with some
using senior lawyers, others using junior lawyers, paralegals, or staff, and
still others hiring outside contractors. As a result, widely disparate hours,
hourly rates, and lodestars, were claimed for doing essentially the same work.
As an example, two objecting firms’ PFS lodestar amounts averaged to
$2,000 per PFS or higher, while other firms completed their PFSs at a much
lower average cost. [Minnesota CLC] also learned that some firms recorded
all of their PFS-related time contemporaneously, while others recreated it
later based upon estimates, giving rise to differing levels of accuracy in the
record-keeping supporting the claimed PFS lodestar amounts. Furthermore,
some firms did not differentiate between time spent entering completing
PFSs and time spent entering data for other litigation purposes.
Id. at 6726. Certainly, Minnesota CLC’s discussion illustrates precisely why, in a
common fund context, the lodestar can serve as a dubious benchmark.
The Minnesota state court itself, while largely adopting Minnesota CLC’s
approach and, to an extent, its reasoning for a flat fee, found that $250 was too low and
increased the flat fee to $301.63, explaining that:
The [a]mount of the Court’s flat fee is driven, in part, by the arithmetic of
dividing a large sum of money among many claimants. The Court’s
considered judgment is that the per-PFS flat fee . . . should be increased by
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approximately 20% from the proposed amount. A flat fee of $300 would be
exactly 20% higher than the proposed $250, but would leave a small
percentage of the Minnesota pool attorney fees unallocated. The remaining
small amount to be allocated after adjusting the multipliers and increasing
the flat fee is most fairly accounted for, in the Court’s view, by slightly
raising the per-PFS flat fee to $301.63.
Id. at 6743 n.6 (emphasis added). And, perhaps more crucially, the Minnesota state
court—following, in effect and in salient part, the diminishing returns and work
inefficiency reasoning of the Minnesota CLC, which is also embraced in our caselaw—
stated that:
In the Court’s view, a flat fee of $301.63 for each completed PFS submitted
to Syngenta will provide fair compensation for the common benefit conferred
by PFS-related work, without over-compensating for such work. To pay a
much higher fee for PFS-related work, well in excess of the claimed lodestar
amounts as advocated by many of the objectors, would overemphasize the
value of the PFS work, as compared to the substantive legal work performed
by the firms in the higher tiers. As Judge Lungstrum [of the Kansas district
court] noted in his March 20, 2019 order, the preparation of PFSs contributed
to the favorable outcome to a relatively small extent, and it is appropriate to
compensate firms for their completed PFSs at a rate that reasonably
approximates the lodestar amount for performing that task efficiently.
Id. at 6744 (emphasis added).
As we have already explained—and as our discussion here illustrates—the
Minnesota state court’s allocation order was not out-of-step with our precedent: it
reasonably, albeit implicitly, considered the common fund doctrine’s equitable principles
and the most relevant Johnson factors. Here, we find that the overall record, along with
Joint Appellees’ arguments before us and in the courts below, show the Minnesota state
court’s flat-fee award of $301.63 per PFS to be reasonable. Thus, we do not see any
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significant issues surrounding the discrepancy between the flat-fee rates between
Minnesota and Kansas such that a reversal or remand is warranted as to this issue.54
Equally unavailing, Byrd and Shields’s claims about PFS compensation from the
Illinois common benefit pool add nothing to their argument, as these claims are wholly
speculative and unsupported by the record. Thus, to the extent that Byrd and Shields
argue in their initial and supplemental briefing that fee awards were unreasonable, we
disagree.55
3. The District Court Did Not Arbitrarily Disregard the Joint Prosecution
Agreements
We now resolve Byrd and Shields’s final challenge by highlighting the critical
distinctions between the Joint Prosecution Agreements and the Watts Guerra Settlement.
Byrd and Shields argue that the Kansas district court’s approval of the Watts Guerra
Settlement illustrates its arbitrary disregard for the JPAs. This argument is unavailing.
54
The differential rates between the PFS-related fees of Kansas and
Minnesota track the relative common benefit pool allocations. That is, the Kansas pool
accounted for roughly 50% of the aggregate attorneys’ fee award, while the Minnesota
pool accounted for just shy of 25%. That is, the Minnesota pool was half the size of the
Kansas pool. So, logically, Minnesota PFS work was compensated at half the rate of
Kansas PFS work, thereby reflecting the Kansas district court’s judgment as to the
relative contributions of each litigation site to the overall settlement process. Byrd and
Shields’s related contention that some Illinois firms benefitted from a PFS flat-fee
windfall is unavailing; no firm asked the Illinois district court to award PFS work on a
flat-fee basis and, in any case, the Illinois court gave “little weight” to the hours firms
reportedly spent on PFS work. Joint App., Vol. 29, at 6941.
55
To the extent that Byrd and Shields argue that the Kansas district court
erred in allocating only 12% of the aggregate fee award funds to the IRPA pool, we direct
them to our discussion of Kansas Appellants’ argument regarding that same issue.
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As we have discussed, the JPAs did not govern and merited little weight because they did
not anticipate a nationwide class action settlement. By contrast, the nationwide class
action settlement context is baked into the Watts Guerra Settlement. Hence, Minnesota
Appellants’ argument that the district court arbitrarily enforced one agreement but not the
other rests on an inapposite comparison, one tantamount to comparing apples to oranges.
See Derma Pen, LLC, 999 F.3d at 1244 (noting that a district court does not abuse its
discretion when awarding attorneys’ fees and expenses unless it “renders an arbitrary,
capricious, whimsical, or manifestly unreasonable judgment” (quoting Burke, 935 F.3d at
1011 (citation omitted))).
***
In sum, the Kansas district court acted well within its discretion in denying Byrd
and Shields’s belated expense applications and motions for reconsideration, and Byrd and
Shields fail to show how these denials constituted an abuse of discretion. Likewise, they,
like their fellow Appellants, fail to establish an abuse of discretion as to any facet of the
attorneys’ fee allocation process in the Kansas district court. We thus reject their
challenges and affirm the Kansas district court’s orders concerning the fee allocation as
to the Minnesota common benefit pool.
G. Illinois Appellants
We now turn to Illinois Appellants, who target the Kansas district court’s
November 2019 Illinois Pool Allocation Order, while also invoking the Kansas district
court’s April 2019 Clarification Order. Their sole issue is framed as follows: “Whether
the district court erred by refusing to review the attorneys’ fees allocations recommended
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by [the Illinois Special Master] and [the Illinois district court] and instead adopting [the
Illinois district court’s] recommended allocations without reviewing them under the
Johnson factors.” Ill. Aplts.’ Opening Br. at 6.
Consisting of Demerath and Eiland, Illinois Appellants pursue a narrow challenge.
They argue that the Kansas district court erred by reviewing the Illinois district court’s
allocation order too deferentially. Illinois Appellants contend that the Kansas district
court, because it had “exclusive jurisdiction over the allocation of the attorneys’ fees and
expenses,” “was required to meaningfully review the recommendations regarding the
allocation by applying the Johnson factors.” Id. at 10. However, in their view, because
the Kansas district court limited its review of the August 2019 Illinois Pool Allocation
Order to structural and procedural issues, it did not specifically assess the Illinois fee
award’s reasonableness against the Johnson factors. Accordingly, Illinois Appellants
request that we reverse the Kansas district court’s November 2019 Illinois Pool
Allocation Order “so that the district court can perform this review.”56 Id.
56
Illinois Appellants concede that the Kansas district court “had discretion to
consider (and even defer to) the recommendations of [Illinois Special Master] Stack and
[Illinois District] Judge Rosenstengel,” but nonetheless assert that the court “had no
discretion to simply adopt Judge Rosenstengel’s recommendations without at least
analyzing the allocation under the Johnson factors.” Ill. Aplts.’ Opening Br. at 12. At
bottom, the implicit foundation of Illinois Appellants’ argument seems to be that the
Kansas district court erred by not adopting the Illinois Special Master’s R&R, which
provided them a higher attorneys’ fee award compared to the Illinois district court’s
August 2019 Illinois Pool Allocation Order. Illinois Appellants specifically note that, in
its Fee Allocation Order, the Kansas district court justified deferring to the Illinois district
court’s August 2019 Illinois Pool Allocation Order because of that court’s “familiarity
with the lawsuit.” Id. at 13. They assert, however, that though such “logic certainly
applies to [Illinois Special Master] Stack’s Report and Recommendation,” “it does not
support unquestioned deference to Judge Rosenstengel’s determination because she was
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First, we find that, in failing to object to the Kansas district court’s
pronouncements regarding the scope of its review, Illinois Appellants forfeited their
arguments. And, because they failed to argue plain error before us, we deem those
arguments effectively waived. Nevertheless, with our highly deferential—and prejudice-
sensitive—standard in mind, we are ultimately not persuaded as to the merits of their
claim. A federal court, albeit one based in Illinois, assessed Illinois Appellants their fees
in full view of the Johnson factors. To the extent the Kansas district court erred—an
issue we need not decide—the error was harmless.
1. Effective Waiver
Illinois Appellants lodged no objections to the Kansas district court’s December
31, 2018, Fee Allocation Order—which anticipated that the Illinois district court alone
would allocate the Illinois common benefit pool—and, likewise, voiced no
contemporaneous objection to the court’s April 2019 Clarification Order when it was
entered.
Illinois Appellants’ failure to file objections as to the scope of the Kansas district
court’s review of the Illinois district court’s allocation order constitutes forfeiture. See
Leffler, 942 F.3d at 1196 (“When a party fails to raise an argument below, we typically
treat the argument as forfeited.”). Furthermore, because Illinois Appellants failed to
not the judge who presided over the Illinois Syngenta litigation.” Id. Yet it is not
altogether clear how Illinois Appellants would practically reconcile, on the one hand,
their insistence that any allegedly unquestioned deference by the Kansas district court to
the Illinois district court is improper with, on the other hand, their contention that
deference to the Illinois Special Master’s R&R—but not Judge Rosenstengel’s August
2019 Illinois Pool Allocation Order—is permissible.
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argue plain error before us, we deem their argument effectively waived. See Richison,
634 F.3d at 1131. However, as we have said, “whether issues should be deemed waived
is a matter of discretion.” Walker, 918 F.3d at 1153. With that, we elect to turn to the
merits.
2. The Kansas District Court’s Limited Review Did Not Prejudice Illinois
Appellants
a. The Illinois District Court Adequately Applied the Johnson Factors
To start, we note that the Illinois district court’s August 2019 Illinois Pool
Allocation Order expressly acknowledged that common benefit principles and the
Johnson factors shaped its determination of the fee award. With respect to Demerath, the
Illinois district court observed that the firm claimed “9,505.5 hours of common benefit
work, consisting of 6,060 attorney hours and 3,445.5 non-attorney hours.” Joint App.,
Vol. 29, at 6944. Of that, Demerath claimed 321.5 attorney hours and 91.5 non-attorney
hours for drafting complaints, 5,375.5 attorney hours and 3,237 non-attorney hours for
pre-settlement communications with clients, 345 attorney hours and 105 non-attorney
hours for assisting clients in perfecting claims, and 18 attorney hours and 12 non-attorney
hours in preparing fee petitions. The court afforded “significantly less weight to the non-
attorney hours and little weight to hours recorded as pre-settlement communications with
clients and assisting clients in perfect claims,” id., because “time spent shepherding
clients through the claims process and substantial post-retention communications with
clients are not especially valuable to the common benefit of the plaintiffs,” id. at 6938.
Moreover, the court found that Demerath’s contributions to the overall settlement were
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limited to it “filing some of the first cases in Nebraska.” Id. at 6944. Accordingly, the
court awarded Demerath $780,166.67, or 1% of the Illinois pool.
Turning to Eiland’s award, the court observed that Eiland claimed 13,254 hours of
“common benefit work,” consisting of 7,268 attorney hours and 5,986 non-attorney
hours. Id. at 6945. While Eiland devoted 468 attorney hours to complaint drafting,
motion briefing and argument, paper discovery, expert witness work, and other pretrial
motion practice, they committed the bulk of their attorney hours—4,015, to be exact—to
pre-settlement communications with clients. In addition, Eiland spent 815 attorney hours
preparing and reviewing PFSs, which the court already explained contributed little to the
plaintiffs’ common benefit. However, the court recognized that Eiland filed several cases
in Illinois, assisted with document review and briefing, worked with experts, and
conducted discovery. For this, the court awarded Eiland $2,340,500, or 3% of the Illinois
pool.
As we noted earlier, “[w]e have never held that a district court abuses its
discretion by failing to specifically address each Johnson factor”—and, in fact, “we have
stated that not all of [these factors] need be considered.” Gudenkauf, 158 F.3d at 1083(emphasis added). We are satisfied that the Illinois district court applied the Johnson
factors, albeit implicitly. The Illinois district court expressly found that the bulk of both
firms’ time and labor did not contribute to the plaintiffs’ common benefit, and
accordingly discounted much of that time. See Johnson, 488 F.2d at 717 (Factor 1).
Because walking clients through the claims process and preparing fact sheets was
exceptionally easy, neither Demerath nor Eiland had to apply their talents to particularly
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novel or difficult legal questions; successfully accomplishing those tasks required little
skill. See id. at 718 (Factors 2 and 3). The “results” both firms obtained were relatively
miniscule compared to the time they invested, but the Illinois district court nevertheless
compensated each firm for its contribution to the common benefit. See id. (Factor 8).
b. To the Extent the Kansas District Court Erred, the Error Was Harmless
Though it nominally restricted its review of the Illinois district court’s order to
structural and procedural defects, the Kansas district court opined that the Illinois district
court “properly considered the type of work for which Demerath claimed common
benefit fees, and [it] applied this Court’s guidance in affording less weight to non-
attorney hours, claims work, and client communications.” Joint App., Vol. 32, at 7448.
And, as it did with Demerath’s objections, the Kansas district court remarked that the
Illinois district court “acknowledged Eiland’s contributions” but assigned less value to
the firm’s work “relating to fact sheets, client communications, claims, and
administration.” Id. at 7449. Notably, the Kansas district court assured the parties that it
would not “merely . . . sign off on the allocations . . . without any consideration
whatsoever.” Id., Vol. 26, at 5926. So, any insinuation that the court did a blanket, blind
adoption of the Illinois district court’s fee allocation order would be plainly inaccurate.
Framed more accurately, what Illinois Appellants object to is the Kansas district court’s
decision to not explicitly analyze the fee allocations against the Johnson factors after
another federal court did exactly that.
Of course, our precedent establishes that courts are obliged to ensure the
reasonableness and fairness of attorneys’ fees awards and to state the reasons for its
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findings. See Uselton, 9 F.3d at 853 (reconfirming, again, “the existing requirement that
the district court determine the reasonableness of the fee and articulate specific reasons
for its findings”); Brown, 838 F.2d at 454 (noting that “the district court must ‘articulate
specific reasons for fee awards to give us an adequate basis’ to review the reasonableness
of the percentage and thus the reasonableness of the fee award” (citation omitted)
(quoting Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983))).
Even so, reviewing Illinois Appellants’ challenge on the merits still affords them
no relief because they completely fail to explain how they were prejudiced by the Kansas
district court’s circumscribed review. That is, they fail to explain how a Johnson factor
analysis—or, indeed, the “hybrid” analysis we have explained is appropriate in common
fund allocations, see Chieftain Royalty, 888 F.3d at 458–59—would change the Kansas
district court’s decisions regarding the attorneys’ fees awarded to them. Effective waiver
aside, we are especially disinclined to consider reversing a district court’s fee award
where, as here, appellants have made no attempt to show how they were harmed or
prejudiced by the alleged error. See Nixon, 784 F.3d at 1366. This is especially so given
that the Illinois district court considered the Johnson factors and common fund equitable
principles when devising the fee award. So, bearing in mind Illinois Appellants’ failure
to explain how exactly they were prejudiced by the Kansas district court’s adoption of the
Illinois district court’s pool allocation order, we do not see a reason to disturb the Kansas
district court’s decision. In short, “[w]e see nothing in the record to indicate [either the
Kansas or Illinois] district court[s] failed to carefully and adequately familiarize
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[themselves] with this litigation before rendering the fee award.” Uselton, 9 F.3d at 854.
We affirm.
H. Johnson Becker
The last of the Appellants, Johnson Becker challenges discrete portions of the
Kansas district court’s December 31, 2018, Fee Allocation Order and July 2019
Minnesota Pool Allocation Order. Specifically, Johnson Becker questions whether the
Kansas district court’s “refusal to allow [the firm] . . . the opportunity to seek attorneys’
fees before those Courts where it actually performed work—while allowing every other
similarly situated firm to make multiple fee applications—[constituted] a due process
violation[.]” Johnson Becker Opening Br. at 1.
Specifically, Johnson Becker argues that the Kansas district court violated its
constitutional due process rights when it assigned it solely to the Minnesota common
benefit pool, rather than assigning it to the Illinois common benefit pool or to both the
Illinois and Minnesota pools. Johnson Becker complains that it “was the only Firm in the
entire litigation who performed common benefit work in two jurisdictions but was
evaluated by only one court.” Id. at 2–3 (emphases omitted). Thus, as Johnson Becker
reasons, the Kansas district court’s “decision to place [Johnson Becker] in one Court
versus the Courts where the work occurred,” then, “was wholly arbitrary and adversely
impacted its fee award.” Id. at 3.
According to Johnson Becker, that adverse impact took form as follows: It “filed
1,352 cases . . . in Minnesota and 510 cases in Illinois,” and it performed “511.8 hours of
‘traditional’ common benefit work in Minnesota and 400.9 hours in Illinois.” Id. at 2. It
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is not that the Minnesota state court made no effort to compensate Johnson Becker for its
Illinois work—it did. The issue, as Johnson Becker sees it, is that the Illinois district
court’s “methodology allowed firms to seek reimbursement for ‘broader’ common benefit
work—i.e., work that advanced the litigation but was not subsumed within traditional
litigation activity.” Id. Johnson Becker claims it performed 6,000 such “broader”
common benefit hours in Illinois. Id. Though Johnson Becker would like to collect, it
cannot as long as it is assigned to the Minnesota pool. Thus, Johnson Becker argues that
the Kansas district court’s initial assignment to the Minnesota pool violated its right to
due process under the Fifth and Fourteenth Amendments. We decline to reach Johnson
Becker’s constitutional claims because the firm abandoned (i.e., waived) its sole appellate
issue in the district court.
Johnson Becker does not contest the relevant procedural history. When the
Kansas Special Master initially placed Johnson Becker within the Minnesota common
benefit pool, Johnson Becker filed a paper seeking clarification concerning how its
Illinois legal work would be evaluated and compensated by the Minnesota state court.
Furthermore, Johnson Becker affirmed that it was “not objecting to its inclusion in the
Minnesota grouping, or to any other aspects of the Special Master’s Report.” Joint App.,
Vol. 22, at 5080 (Johnson Becker’s Req. for Clarification Regarding the November 2018
Fee Allocation R&R, filed Dec. 5, 2018).
At the subsequent hearing on the November 2018 Fee Allocation R&R held on
December 17, 2018, the Kansas Special Master clarified that she expected the Minnesota
state court to compensate Johnson Becker for its Illinois legal work as part of its overall
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attorneys’ fee award. Later in the same hearing, counsel for Johnson Becker
characterized the firm’s “objection” as “technically a request for clarification,” id., Vol.
23, at 5314, which makes sense given that Johnson Becker titled its filing “Johnson
Becker’s Request for Clarification” and explicitly did not object to its inclusion in the
Minnesota pool, id., Vol. 22 at 5076 (emphasis added). Johnson Becker stated at the
hearing that the Kansas Special Master “for the most part clarified [its] question” and
further relayed that it “kn[ew]” it would be “treated fairly” by both the Minnesota state
court and Minnesota CLC as to the allocation and valuation of its Illinois time. Id., Vol.
23, at 5314–15. Concluding, Johnson Becker said, “So, . . . what we really came for
today was to get that clarification. I think we’ve received it.” Id. at 5315–16 (emphasis
added).57
Johnson Becker’s filing of a paper requesting clarification and then its explicit
decision not to object—upon receiving the Kansas Special Master’s clarifying
explanation—suggests that it knew it had the right to object “and intentionally chose[] to
relinquish it.” Vreeland v. Zupan, 906 F.3d 866, 876 (10th Cir. 2018); see also United
States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009) (“Waiver occurs when a
party deliberately considers an issue and makes an intentional decision to forgo it.”).
Stated otherwise, even if we were to characterize Johnson Becker’s “request for
clarification” as an “objection”—as it initially did during the hearing before the Kansas
57
The Kansas district court similarly observed that Johnson Becker had
“abandoned” the argument during the December 17, 2018, hearing, among other
instances in which the firm failed to explicitly raise its objection. Joint App., Vol. 29, at
6876.
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Special Master—Johnson Becker’s agreement with, and its acceptance of, the
clarification offered and decision not to object further to its placement in the Minnesota
common benefit pool constituted abandonment. See Richison, 634 F.3d at 1127 (noting
that when a litigant has “intentionally relinquished or abandoned [a theory or argument]
in the district court, we . . . deem it waived and refuse to consider it”); see also United
States v. Martinez, 974 F.2d 589, 591 (5th Cir. 1992) (noting that “the critical factor in
deciding whether the silence of counsel constitutes a waiver is whether there was a
meaningful opportunity for counsel to request argument or to object, considering all the
attendant circumstances” (emphasis added) (footnote omitted)). And, even if we were to
charitably look at Johnson Becker’s conduct before the district court as indicative of
general litigation negligence and review its claim through the framework of our forfeiture
doctrine, Johnson Becker failed to argue for plain error in either its opening or reply
briefs. So, we would deem Johnson Becker’s present objection to the district court’s
placement effectively waived. See Richison, 634 F.3d at 1131.
Furthermore, we note the additional fact that Johnson Becker utterly failed to
object or submit a motion for reconsideration after the Kansas district court entered an
order on January 9, 2019, which “noted that . . . six additional firms had been assigned by
the [Kansas] [S]pecial [M]aster to both the Kansas and Minnesota pools because they had
performed audited common benefit work in both jurisdictions.” Joint App., Vol. 29, at
6875.58 As to that January 9, 2019, order, the Kansas district court further recounted that,
58
As the Kansas district court itself pointed out, Johnson Becker repeatedly
declined to object to any differential treatment of similarly situated law firms throughout
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“with the consent of the Kansas and Minnesota leadership (which were designated by this
Court and the Minnesota [state] court to undertake initial allocations from their respective
pools), the Court ordered that those firms would remain in both pools,” but “Johnson
Becker did not renew its request to be placed in two pools in light of this order.” Id.Johnson Becker’s failure to file anything opposing the Kansas district court’s
decision to place six other firms, but not it, in multiple pools perhaps most crucially
proves fatal in terms of Johnson Becker’s claim for preservation. In other words, when
the Kansas district court issued its January 9, 2019, order—which placed those six other
firms in multiple pools—Johnson Becker was explicitly on notice that such a placement
was possible and that the court did not provide Johnson Becker with such a placement.
Yet, even with explicit notice, Johnson Becker was silent and did not challenge its
placement, despite knowing that other firms were successfully placed in multiple pools.
To frame it a bit differently, only after it received its fee award from the
Minnesota common benefit pool did Johnson Becker complain its rights had been
violated and argue that the Kansas district court needed to unwind the allocation
the fee allocation process, even though it was aware that roughly six other firms like it—
i.e., firms that had performed work in two litigation sites—had been assigned to multiple
common benefit pools. Moreover, even after the Kansas district court largely adopted the
Kansas Special Master’s November 2018 Fee Allocation R&R and “clarifie[d] that each
applicant will eventually receive an award of fees based on its common benefit work
anywhere, performed with respect to cases in any jurisdiction, regardless of the particular
pool into which the applicant is placed,” Johnson Becker “did not seek reconsideration of
the Court’s decision to assign it only to the Minnesota pool.” Joint App., Vol. 29, at
6875.
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framework and reassign it. But, for the reasons discussed above, Johnson Becker had (at
least) forfeited or (much more likely) abandoned and waived this complaint months
before the Minnesota common benefit pool had been allocated.
Accordingly, we need not consider Johnson Becker’s constitutional challenges
here. See Richison, 634 F.3d at 1127, 1131; Carrasco-Salazar, 494 F.3d at 1272–73.
After all, “[i]t is a well-established principle governing the prudent exercise of th[e]
[c]ourt’s jurisdiction that normally the [c]ourt will not decide a constitutional question”—
here, Johnson Becker’s constitutional due process claim—“if there is some other ground
upon which to dispose of the case.” Holder, 557 U.S. at 205 (first alteration in original)
(quoting Escambia Cnty., 466 U.S. at 51). So, we conclude that Johnson Becker has
failed to preserve its sole appellate issue.
I. Pending Motions
Before concluding our merits discussion, we briefly turn to and dispose of three
requests related to the merits of this action: (1) Kansas CLC’s Contingent Cross-Appeal;
(2) Byrd’s, Shields’s, and Hossley-Embry’s October 13, 2020, Motion for Leave to File
Additional Briefing; and (3) Toups/Coffman’s July 26, 2021, Motion to Supplement the
Record. We dismiss these as either moot or unavailing.59
59
Because we have not considered in resolving this appeal the portions of
Byrd and Shields’s supplemental briefing related to the Watts Guerra Settlement, in
summary fashion, we also deny as moot Joint Appellee’s motion to strike, which was
filed on August 5, 2021.
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1. Kansas CLC’s Contingent Cross-Appeal
We turn first to Kansas CLC’s Contingent Cross-Appeal. Kansas CLC brings its
cross-appeal “to preserve and show that even if one or more Appellants . . . demonstrate
they were undercompensated, the Kansas allocation was not the reason for any under-
compensation,” and “any [potential] increase in fees to the Appellants should be based on
reducing the Illinois or Minnesota allocations.” Kan. CLC’s Contingent Cross-Appeal
Br. at i. In the alternative, Kansas CLC also requests that, “[i]f [we] accept[] any of
[Appellants’] arguments,” we should remand this matter “for the district court to make
[an allocation] determination in the first instance because it is most acquainted with the
facts.” Id. at i–ii. Nevertheless, Kansas CLC itself further states that it “strongly urge[s]
full affirmance of the district court’s fee-allocation orders, which would render moot
th[e] contingent cross-appeal.” Id. at i (second emphasis added).
Because a federal court can only exercise jurisdiction over “[c]ases” and
“[c]ontroversies,” U.S. Const. art. III, § 2, cl. 1, “an actual controversy must be extant at
all stages of review.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1121 (10th Cir. 2010) (alteration in original) (quoting Arizonans for Off. Eng. v.
Arizona, 520 U.S. 43, 67 (1997)); see also Equal Emp. Opportunity Comm’n v.
CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173 (10th Cir. 2017) (“A case or
controversy does not exist when a claim is moot. Thus, moot claims must be dismissed.”
(footnote omitted)). Since we fully affirm the Kansas district court’s orders challenged in
these appeals, we deny the related Contingent Cross-Appeal filed by Kansas CLC as
moot.
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2. Byrd, Shields, and Hossley-Embry’s Motion to File Additional Briefing
On October 13, 2020, Byrd, Shields, and Hossley-Embry (hereinafter, “Movants”)
moved this court for an order permitting additional briefing. We conclude that Byrd,
Shields, and Hossley-Embry effectively waived their arguments.
The motion for leave primarily concerns the motions for reconsideration Movants
filed before the Kansas district court in September 2020. Those motions for
reconsideration, in turn, challenge the Kansas district court’s December 2018 and January
2019 orders, including the December 31, 2018, Fee Allocation Order as well as the
Kansas Special Master’s December 2018 R&R. In brief, those motions sought an
additional fee allocation to the IRPA pool given allegedly unforeseen complexities in the
settlement claims process. To wit, Movants argue the “district court prematurely
discounted [their] contingent fee recoveries with their clients and awarded these firms a
lesser common benefit fee while shifting millions of dollars in fees paid by their clients to
the various common benefit pools” because “it lacked information as to the scope of
work required by the attorneys during the settlement claims process.” Joint Aplts.’ Mot.
for Leave to File Additional Briefing, Doc. 010110422119, at 4 (filed Oct. 13, 2020).
Therefore, in Movants’ view, additional briefing is necessary to illuminate “the lack of a
‘simple and streamlined’ settlement claims process which is the underpinning of the
district court’s orders.” Id.Since Movants filed their motion for leave in October 2020, the Kansas district
court denied their motions for reconsideration. See In re Syngenta AG MIR 162 Corn
Litig., MDL No. 2591, Doc. 4499 (Mem. and Order, entered Dec. 2, 2020)
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(“Reconsideration Order”).60 While the district court ostensibly found it lacked
jurisdiction to consider the reconsideration motions at all, it nonetheless indicated that,
had it enjoyed jurisdiction, it would still deny the motions because they were untimely
and, in any case, did not disturb the common benefits logic undergirding the court’s prior
orders. See id. at 7–12; id. at 6 (noting that “the Tenth Circuit has stated that even if a
district court lacks jurisdiction to grant a Rule 60 motion because of a pending appeal, it
may still consider and deny the motion” (citing Allison v. Bank One-Denver, 289 F.3d
1223, 1243 (10th Cir. 2002))).
We see no reason to exercise our discretion to grant Movants’ request to
effectively augment their opening briefs. Movants have been on notice of the issues they
raise in their reconsideration filings for quite some time—and, for our purposes, months
before they filed their opening briefs in these appeals. They offer nary a word as to why
they were unable to include the substance of their reconsideration arguments as part of
their initial appellate briefing. So, here, we do not allow Movants to effectively “amend”
their opening briefs and add new issues through supplemental briefing. Cf. Becker v.
Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently raised
in the opening brief is deemed waived.”).
60
In an exercise of our discretion, we take judicial notice of the Kansas
district court’s order. See, e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th
Cir. 2007) (“Although we are not obliged to do so, we may exercise our discretion to take
judicial notice of publicly-filed records in our court and certain other courts concerning
matters that bear directly upon the disposition of the case at hand.”).
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Finally, we note that Movants’ complaints about the district court’s purported
failure to account for the extra hours individually retained private attorneys would need
to expend are irrelevant to the overall fee allocation framework. As the district court
made clear on numerous occasions, and as we have elucidated here in parts of this
opinion, the overall fee allocation framework, including the specific fee allocation to the
IRPA pool, was predicated on the contributions specific attorneys or groups of attorneys
made toward the Settlement. This was a central facet of the court’s overarching
“reasonableness” inquiry. Movants have not explained, either before the district court or
before us, how these alleged hours more recently expended relate at all to
“reasonableness” and why the Kansas district court’s failure to anticipate such hours—
even if that were true—would undermine its allocation decisions.
At bottom, Movants could have and should have included these arguments in their
opening briefs. They cannot do so now by inaccurately claiming they pertain to
“unanticipated” developments. And beyond their tardiness, these arguments are meritless
and irrelevant to our review, and they do nothing to cast doubt on the Kansas district
court’s fee allocation decisions. Thus, we deny Movants’ motion for leave to file
supplemental briefs concerning their motions for reconsideration.
3. Toups/Coffman’s Motion to Supplement the Record
Lastly, Toups/Coffman filed a motion to supplement the record with documents
concerning their contingent-fee agreements. Specifically, Toups/Coffman attempts to
bring forth certain spreadsheets that apparently “combin[e] the source data pertaining to
Toups/Coffman’s contingent-fee client contracts . . . that [were] filed [before the Kansas
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district court].” Toups/Coffman’s Mot. to Supplement the Record, Doc. 010110553968,
at 2 (filed Jul. 27, 2021). Toups/Coffman believe that the spreadsheets are relevant, first,
“because they will conclusively show the Court the fees Toups/Coffman, at the very
least, are due under the binding Contracts reviewed, approved, and accepted by the
[Kansas] Special Master, but whose fee provisions were abrogated by the district court,”
and, second, because we apparently “noted several times during the oral argument that
[we] could not determine what would be a fair fee allocation until all the information is
before the Court.” Id. at 2.
We do not generally review documents that were not before the district court. See
Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1549 n.1 (10th Cir. 1992) (“We
will not review this complaint, however, because it was not before the district court when
the various rulings at issue were made.”); see also Castner v. Colo. Springs Cablevision,
979 F.2d 1417, 1423 (10th Cir. 1992) (“[The party’s] motion to supplement the record is
granted insofar as it relates to documents that were before the district court, and denied as
to those documents that were not presented to the district court.”). Supplementing the
record on appeal is a “rare exception” only available through the exercise of our “inherent
equitable power.” United States v. Pickard, 396 F. App’x 568, 572 (10th Cir. 2010)
(unpublished) (citing United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir. 2000));
see Kennedy, 225 F.3d at 1192 (“[U]nder some circumstances, we have an inherent
equitable power to supplement the record on appeal.”); 16A Charles Alan Wright et al.,
FEDERAL PRACTICE AND PROCEDURE § 3956.4 (5th ed.), Westlaw (database updated Apr.
2022) (“In special circumstances, a court of appeals may supplement the record to add
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material not presented to the district court, though this is rare enough that many of the
decisions noting the court’s power to do so go on to say that the power will not be
exercised under the circumstances of the case.”).
Here, we find Toups/Coffman’s motion to be meritless. First—and very simply—
the spreadsheets were not filed before the district court. And, following our ordinary
practice, that fact, standing alone, provides a sufficient reason to justify our denial of the
motion. Second, even if we read our caselaw with an eye toward providing
Toups/Coffman leeway and assume that the spreadsheets were “before” the court since
they contain information from contingent-fee agreements that the Kansas district court
reviewed—a reading of the caselaw that we explicitly note to be somewhat of a stretch
bordering on the unreasonable—we still find the motion unavailing in light of the
spreadsheets’ irrelevance to our analysis here. See CSX Transp., Inc. v. City of Garden
City, 235 F.3d 1325, 1330 (11th Cir. 2000) (“A primary factor which we consider in
deciding a motion to supplement the record is whether acceptance of the proffered
material into the record would establish beyond any doubt the proper resolution of the
pending issues.”); accord Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d
1007, 1013 (6th Cir. 2003) (“[W]e need not consider this new information because the
point [the plaintiff] is trying to establish with this material . . . is ultimately not material
to our legal analysis.”). As Joint Appellees rightly note, “no one asked Toups about the
fees they might have received under their contingent fee contracts because that sum is
irrelevant to the Court’s disposition of these appeals.” Aplees.’ Resp. to
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Toups/Coffman’s Mot. to Supplement the Record at 3. We agree with that observation
and find the spreadsheets irrelevant to our review.
Third, we take issue with Toups/Coffman’s insinuation that we requested the
spreadsheets or the information therein. We direct Toups/Coffman to the oral argument
recording that they themselves cite; there, we did not inquire—and we expressed no
concern—about the possible attorneys’ fees award Toups/Coffman or any other firm
would receive under contingent-fee contracts. See Oral Argument, No. 19-3008, at
12:57–13:14; 13:31–13:41; 27:35–27:41 (10th Cir., dated March 10, 2021). Instead, we
asked certain questions as to what effect, if any, the then-pendency of the IRPA
allocation had on the case. See id.Thus, for all these reasons, the motion to supplement the record is meritless and
we deny the motion.
III. Conclusion
For the reasons provided above, we AFFIRM the district court’s post-judgment
attorneys’ fees orders.
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