Uselton v. Commercial Lovelace Motor Freight, Inc.

9 F.3d 849, 1993 U.S. App. LEXIS 27884, 1993 WL 434082
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 28, 1993
DocketNo. 93-6068
StatusPublished
Cited by98 cases

This text of 9 F.3d 849 (Uselton v. Commercial Lovelace Motor Freight, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 1993 U.S. App. LEXIS 27884, 1993 WL 434082 (10th Cir. 1993).

Opinion

LOGAN, Circuit Judge.

This appeal concerns the proper award of attorneys’ fees out of a common fund created when the plaintiff class settled its underlying litigation with defendants. Class counsel, appellants herein, submitted a fee request for fifty percent of the settlement fund, which was formally opposed by separate counsel [853]*853representing class members who objected to the request.1 Following a hearing, the district court awarded class counsel twenty-nine percent of the fund, or $507,500. Class counsel moved for reconsideration of that award, while objecting counsel requested a fee for services in preserving the common fund for the benefit of the whole class. The district court denied class counsel’s motion and awarded objecting counsel a fee of $14,-427.49. Class counsel appeal from both rulings.2 We affirm.

I

In Brown v. Phillips Petroleum Co., 838 F.2d 451 (10th Cir.), cert. denied, 488 U.S. 822, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988), this court 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. Id. at 454-56; accord Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1268 (D.C.Cir.1993); Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir.1991). We reconfirmed, however, 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. We also reaffirmed the relevance of the twelve factors originally developed for statutory fee determinations in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), noting that their applicability and weight in common fund situations would undoubtedly be different. Brown, 838 F.2d at 454, 456.

Class counsel urge us to revisit the common fund considerations addressed in Brown and reformulate our approach to the reasonableness question in addressing their fee claim. Specifically, class counsel advocate a three-pronged test (class benefit, litigation risk, and professional hours and expenses) they consider exemplified by In re Domestic Air Transp. Antitrust Litigation, 148 F.R.D. 297 (N.D.Ga.1993). Actually, the district court in Domestic Air did not limit its analysis to these points, but followed Eleventh Circuit precedent and determined the appropriate percentage of the fund fee in a manner quite similar to Brown. See 148 F.R.D. at 350-57 (examining several pertinent Johnson factors supporting award); see also Camden, 946 F.2d at 775 (“ Johnson factors continue to be appropriately used in evaluating, setting, and reviewing percentage fee awards in common fund cases”). We will not involve the entire court in an attempt to improve upon the approach carefully set out in Brown. See United States v. Jones, 933 F.2d 807, 812 (10th Cir.1991) (prior panel decisions are binding and may only be overruled en bane).

Class counsel raise a second preliminary point, regarding our standard of review. Fee determinations are subject to reversal only for an abuse of discretion. Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1480, 1481 (10th Cir.1993). Class counsel assert that a less deferential review standard is appropriate when, as here, the district judge who made the fee award did not preside over the case for a significant period of time before making that award. We will not assume the district court was less able to render a decision consistent with the applicable law because that court presided over less than the entire proceeding. See Swedish Hospital Corp., 1 F.3d 1261, 1272 (“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.”). Accordingly, we consider only whether the district court “made a clear error of judgment or exceeded the bounds of [854]*854permissible choice in the circumstances.” McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.1991) (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986), for abuse of discretion standard). We see nothing in the record to indicate the district court failed to carefully and adequately familiarize itself with this litigation before rendering the fee award.

II

Class counsel contend that the district court erred in (1) failing to apply all of the Johnson factors, (2) relying on other, improper considerations, and (3) approving a fee devoid of support in the record. None of these objections is well taken.

This court expressly recognized in Brawn that “rarely are all of the Johnson factors applicable; this is particularly so in a common fund situation.” Brown, 838 F.2d at 456. Further, the district court’s findings, which are more extensive than those approved in Brown, reflect explicit consideration of all but two of the Johnson factors. See Supp.App. tab 26, at 108-16. We will not second guess the district court’s judgment that those two, time constraints and the nature of counsel’s relationship with the client, would have added little to its analysis.

Noting that much of the common fund monies at issue in this fee dispute were freed up by the failure of potential claimants to join the plaintiff class, the district court characterized its primary task as distributing this available money fairly between class counsel and the class. Id. at 116-17. The district court decided that the majority of the money should go to class members, who had lost the benefit of their funds for nearly ten years, rather than class counsel, who would still receive a fee comparing favorably with awards made in similar cases. Id. at 117-18. Class counsel object that this analysis is improper under our prior decisions. To the contrary, the district court appropriately assumed its role as “ ‘fiduciary for the beneficiaries’ of the fund,” Brown, 838 F.2d at 456 (quoting Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 251 (1985)), to properly “determine a reasonable fee by weighing the appropriate interests of the beneficiaries in light of the efforts of counsel on their behalf.” Id.

Following a reasoned discussion of pertinent considerations, the district court arrived at a percentage near the top of the range for comparable common fund eases. See Brown, 838 F.2d at 455 n. 2 (collecting cases); Swedish Hospital Corp., 1 F.3d 1261, 1265-66 (same); H. Newberg, Attorney Fee Awards, § 2.08, § 2.32 Chart (1986 & Supp.1993) (same). Class counsel argue this determination is unsupported by the evidence.

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9 F.3d 849, 1993 U.S. App. LEXIS 27884, 1993 WL 434082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/uselton-v-commercial-lovelace-motor-freight-inc-ca10-1993.