Law v. National Collegiate Athletic Ass'n

4 F. App'x 749
Court of Appeals for the Tenth Circuit·Decided February 27, 2001·No. No. 99-3353·Published·Cited by 12 cases

Opinion

[750] ORDER AND JUDGMENT *

BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument.

Appellant Gerald Roth was an attorney of record for plaintiffs in the two underlying class action antitrust suits against the NCAA. Appellees, two law firms, also represented the plaintiff classes. When the two suits settled, appellees moved for an award of attorneys’ fees and expenses, requesting a combined fee award for all counsel of one-third of the common fund created by the settlement. In their motion, appellees noted that they could not reach an agreement with appellant about the apportionment of the requested combined fees. Appellees further stated they would rely on the court to award appellant a reasonable amount of fees, and suggested an amount equal to the fees appellant sought in an interim fee application. Appellant’s App. at 291, 308-09. Appellant filed his own motion with the district court, supporting appellees’ request for a combined fee award of one-third of the common fund, but disagreeing with their proposed apportionment. The district court held a hearing on the matter, and awarded appellant the amount suggested by appellees, offset by an amount paid on an earlier interim fee application. Appellant challenges the district court’s ruling on appeal.

This court asked the parties to brief the issue of appellant’s standing to bring this appeal, in light of Howard v. Mail-Well Envelope Co., 150 F.3d 1227 (10th Cir.1998), and Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849 (10th Cir.1993). Appellant contends that these cases are distinguishable, and that he has standing because he is directly aggrieved by the district court’s order. Appellees argue that appellant has standing only to challenge the combined fees award of one-third of the common fund, which he has not done. They further assert that he cannot challenge the apportionment of the combined award because he lacks standing to argue that the fees awarded to appellees are too high.

We agree with appellant that he has standing here. Appellees’ argument that appellant has standing only to challenge the combined fee award contradicts this court’s ruling that only aggrieved parties have standing to appeal from a fee award coming directly out of the common fund. See Uselton, 9 F.3d at 855. Appellant is not aggrieved by the combined fee award and does not seek to challenge it. Appellees’ second argument, that appellant doesn’t have standing to challenge the fees [751] apportionment because it would affect the amount of fees awarded to them lacks merit because it goes against the premise that counsel have standing to appeal from orders which are issued directly against them. See Weeks v. Indep. Sch. Dist. No. 1-89, 230 F.3d 1201, 1207 (10th Cir.2000); Uselton, 9 F.3d at 854. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See First Nat’l Bank of Turley v. FDIC, 196 F.3d 1186, 1187 (10th Cir.1999).

The parties also differ about the standard of review applicable to the district court’s apportionment of attorneys’ fees. Appellant characterizes his challenge to the district court’s ruling as a legal issue of first impression in this circuit and contends that we should exercise plenary review. Quoting from the hearing transcript,1 appellant contends the district court erred when it concluded that certain of his efforts and activities in connection with the class action suits, such as class communications, lobbying, and press releases, were not compensable. See Appellant’s Br. at 9-10 (quoting Tr. at 40-41).

We disagree that appellant’s challenge is a legal one. “To recover fees from a common fund, attorneys must demonstrate that their services were of some benefit to the fund or enhanced the adversarial process.” Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1156 (8th Cir.1999). Review of the entire hearing transcript reveals that, prior to the comment on which appellant relies, the district court read from an order it had been prepared to enter on appellant’s second interim fee application just prior to the cases’ settlement. Therein, the court found: “the record contains no credible evidence that such activities resulted in any substantial benefit to the plaintiff classes in this litigation.” Tr. at 32. It is clear that the district court’s analysis and rejection of appellant’s fee request for these activities proceeds from this conclusion. Therefore, despite its later comments that such activities were not compensable, and contrary to appellant’s argument, it is clear that the district court considered these activities and concluded appellant deserved no compensation for them — a determination left to the court’s discretion.

“In class actions, the district court has broad authority over awards of attorneys’ fees; therefore, our review is for an abuse of discretion.” Hayes v. Haushalter (In re FPI/Agretech Sec. Litig.), 105 F.3d 469, 472 (9th Cir.1997). A court can abuse its discretion if its rulings are based on an erroneous legal conclusion or lack rational support in the record. Id. Appellant argues that, in light of his efforts in originating the litigation and other contributions, his fee award was too small in comparison with that given to appellees. Our review of the hearing transcript leads us to conclude that the district court’s findings were amply supported and therefore the court did not abuse its discretion in determining the amount of fees to be awarded appellant.

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Law v. National Collegiate Athletic Ass'n, 4 F. App'x 749 (10th Cir. 2001).

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