Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`February 28, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`In re: SYNGENTA AG MIR 162 CORN
`LITIGATION (Toups/Coffman Plaintiffs’
`Counsel)
`
`–––––––––––––––––––––––––––––––––––
`In re: SYNGENTA AG MIR 162 CORN
`LITIGATION (Kansas Common Benefit
`Firms)*
`
`–––––––––––––––––––––––––––––––––––
`
`In re: SYNGENTA AG MIR 162 CORN
`LITIGATION (Byrd/Shields Group)*
`
`–––––––––––––––––––––––––––––––––––
`
`In re: SYNGENTA AG MIR 162 CORN
`LITIGATION (Johnson Becker, PLLC)
`
`–––––––––––––––––––––––––––––––––––
`
`In re: Syngenta AG MIR162 (Hossley-
`Embry Group)
`
`–––––––––––––––––––––––––––––––––––
`
`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.
`
`
`
`Nos. 19-3008, 19-3022, 19-3079, 19-3176,
`19-3280
`
`
`
`Nos. 19-3032, 20-3002
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`
`
`
`
`No. 19-3174
`
`
`
`
`No. 19-3175
`
`
`
`
`No. 19-3178
`
`
`
`
`
`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.
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`

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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2
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`LITIGATION (Law Office of Craig
`Eiland, P.C.)
`
`–––––––––––––––––––––––––––––––––––
`
`In re: SYNGENTA AG MIR 162 CORN
`LITIGATION (Demerath Group)
`
`
`No. 19-3279
`
`
`
`
`
`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
`2
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3
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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
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`settlement. Numerous plaintiffs from multiple different states—but, mainly, Kansas,
`
`Minnesota, and Illinois—sued Syngenta AG (“Syngenta”), an agricultural company. The
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`suits against Syngenta were organized into complex, federal multi-district litigation
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`(“MDL”) based in a court in the United States District Court for the District of Kansas
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`(“Kansas district court”). Syngenta ultimately settled with the class action plaintiffs. The
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`Kansas district court allocated approximately $503 million in attorneys’ fees and expense
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`awards stemming from the settlement to the myriad firms participating in the class action.
`
`
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`Appellants in this case—the various plaintiffs’ lawyers and law firms that took
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`part in the MDL against Syngenta—challenge numerous orders published by the Kansas
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`district court concerning the apportionment and allocation of that $503 million fee pie.
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`Having concluded it possessed significant authority to craft the allocation of attorneys’
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`fees in the most reasonable manner, the Kansas district court had adopted a two-stage,
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`“general approach” of an appointed special master to the allocation of the attorneys’ fee
`3
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4
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`award—“by which the award is first allocated among the three common benefit pools
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`[i.e., for Kansas, Minnesota, and Illinois] and the IRPA pool [i.e., the pool for
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`individually retained private attorneys],” Joint App., Vol. 23, at 5357 (Kan. D. Ct. Mem.
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`and Order, filed Dec. 31, 2018) (“December 31, 2018, Fee Allocation Order”), and then,
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`second, disbursed to individual firms. Appellees—also lawyers and law firms from
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`Kansas, Minnesota, and Illinois, that acted as co-lead counsel (“CLCs” or “Leadership”)
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`and by-and-large, spearheaded the litigation against Syngenta in the three main fora—
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`oppose Appellants’ arguments, and they ask us to affirm the Kansas district court’s fee-
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`allocation orders.1
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`
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`Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we fully affirm the Kansas
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`district court’s post-judgment attorneys’ fees orders challenged in these appeals.
`
`
`The three relevant groups of appellees in this action are the following: (a)
`1
`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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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5
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`I.
`
`Background
`
`A.
`
`Summary of the Litigation
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`The appeals at issue here stem from various lawsuits filed against Syngenta.
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`Syngenta commercialized and released two genetically modified (“GMO”) corn seeds
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`under the brand names Agrisure Viptera and Agrisure Duracade before obtaining China’s
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`regulatory approval to import such genetically modified seeds. After discovering the
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`Syngenta GMO corn seeds in its American imports, China closed its markets to American
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`corn, depressing corn prices and thereby injuring producers. Beginning in 2014, corn
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`farmers and others in the corn industry filed thousands of lawsuits against Syngenta in
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`several federal and state jurisdictions; these suits took various forms, including class
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`actions, mass tort actions, and individual actions.2
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`In December 2014, the Judicial Panel on Multidistrict Litigation consolidated
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`hundreds of these suits into an MDL centered in the Kansas district court. A similar
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`process occurred in Minnesota, where thousands of suits were consolidated in a state
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`court (“Minnesota state court”). And finally, similar suits were litigated in a court in the
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`United States District Court for the Southern District of Illinois (“Illinois district court”).
`
`
`Some corn producers who initially opted to file individual actions against
`2
`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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`5
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6
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`In an order entered on January 22, 2015, the Kansas district court appointed
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`several attorneys as “co-lead counsel” for the Kansas MDL. Joint App., Vol. 21, at 4749
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`(Kan. Special Master’s R&R, filed Nov. 21, 2018) (“November 2018 Fee Allocation
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`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
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`their role as co-lead counsel, to ‘organize and supervise the efforts of plaintiffs’ counsel
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`in a manner to ensure that the pretrial and trial preparation for the plaintiffs is conducted
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`effectively, efficiently, expeditiously, and economically’ and ‘to encourage full
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`cooperation and efficiency among all plaintiffs’ counsel.’” Id. (quoting Joint App., Vol.
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`2, at 482–83).
`
`On the Minnesota front, firms like Watts Guerra LLP (“Watts Guerra”), along
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`with several others, brought thousands of individual and class action lawsuits in
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`Minnesota state court against Syngenta. The Minnesota state court also appointed certain
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`counsel to a Minnesota Plaintiffs’ Executive Committee to ensure “the efficient,
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`coordinated litigation of the Minnesota cases.” Id., Vol. 21, at 4752. Attorneys from
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`Watts Guerra and the Paul Byrd Law Firm, PLLC (“Byrd”) were among the several
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`appointees. Meanwhile, in Illinois, multiple suits percolated through state and federal
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`court.
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`Substantive discovery occurred across the primary litigation sites (i.e., Kansas
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`district court, Minnesota state court, and Illinois district court). In September 2016, after
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`an evidentiary hearing, the Kansas district court certified eight state-wide classes to
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`pursue state-law tort and statutory claims. Following a three-week jury trial of these
`6
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`

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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7
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`state-law claims in June 2017, one of the Kansas classes obtained a $217,700,000 verdict
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`against Syngenta. This was the only completed class trial across the three jurisdictions,
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`although one class trial was started, but not completed, in Minnesota.
`
`
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`Following the Kansas jury verdict, Syngenta expressed renewed interest in
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`pursuing a global settlement of all claims. Settlement negotiations initially began in
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`March 2016—before the state-wide class certifications—and the Kansas district court,
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`along with its Minnesota and Illinois counterparts, appointed Ellen Reisman as the
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`Special Master for Settlement in the Syngenta litigation (“the Kansas Special Master”).
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`Two months after the June 2017 class action trial, the Kansas district court appointed a
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`Plaintiffs’ Settlement Negotiating Committee (“PNC”) to work toward a settlement with
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`Syngenta. The PNC included representatives of all the major plaintiffs’ constituencies.
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`Facing the risk of similar losses in Minnesota and other venues that could collectively
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`total billions of dollars, Syngenta committed to settlement by late 2017.
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`On February 23, 2018, a class of farmers, certain grain handling facilities and
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`ethanol production facilities, and various Syngenta entities reached a nationwide class
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`action settlement (“the Settlement”) that resolved the claims. Syngenta agreed to pay a
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`total of $1.51 billion in exchange for the release of all claims relating to the sale and
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`marketing of its GMO corn products. As well, the agreement was contingent on
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`certification of a nationwide settlement class for claims arising under the Lanham Act.
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`The Settlement provided that an award of attorneys’ fees and expenses would be
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`“separate from [the Kansas district court’s] determination of whether to approve the
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`[s]ettlement,” which would nevertheless bind the parties even if the Kansas district court
`7
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`

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`“denie[d], in whole or in part,” the attorneys’ fees applications. Id. at 4744 (quoting Joint
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`App., Vol. 5, at 1089–90 (Agrisure Viptera/Duracade Class Settlement Agreement, dated
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`Feb. 23, 2018)). The Settlement contemplated the involvement of the judges of the
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`Kansas district court, the Illinois district court, and the Minnesota state court in the
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`allocation of the total attorneys’ fees and expenses. Those judges, initially, were Judge
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`John W. Lungstrum, Judge David R. Herndon, and Judge Laurie J. Miller, respectively.
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`Judge Herndon of the Illinois district court retired in January 2019, and Judge Nancy J.
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`Rosenstengel replaced him and presided over the proceedings.
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`On April 10, 2018, the Kansas district court granted preliminary approval of the
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`Settlement. After a settlement hearing on November 15, 2018, the court further found the
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`Settlement to be fair, reasonable, and adequate under the factors identified in Tennille v.
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`Western Union Co., 785 F.3d 422, 434 (10th Cir. 2015). The court then tasked the
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`Kansas Special Master with issuing a report and recommendation (R&R) on allocation of
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`the aggregate attorneys’ fee award, which she issued on November 21, 2018.
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`On December 7, 2018, the Kansas district court entered its Aggregate Fee Order
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`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,
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`including certification of a global settlement class. The Aggregate Fee Order awarded
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`one-third of the gross settlement amount—i.e., $503,333,333.33 out of the $1.51 billion
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`settlement fund—as attorneys’ fees. The Aggregate Fee Order made clear that the
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`allocation of this aggregate attorneys’ fee award remained pending and incomplete.
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`Then, in a Fee Allocation Order entered on December 31, 2018, following an objection
`8
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9
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`period and a hearing, the Kansas district court largely adopted the November 21, 2018,
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`R&R on attorneys’ fee award allocation issued by the Kansas Special Master.
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`B.
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`Aggregation and Allocation of the Attorneys’ Fee Award
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`Below we summarize the filings relevant to the Kansas district court’s fee
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`allocation process and, therefore, relevant to the instant appeals.
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`To give a big picture account of what happened: The allocation process
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`implemented by the court turned on a four-pool fee allocation scheme, featuring three
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`“common benefit pools” corresponding with the Kansas, Minnesota, and Illinois
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`litigations and an “IRPA pool” for the work of individually retained private attorneys
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`(“IRPAs”). Attorneys were assigned to one of the three common benefit pools based on
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`where they performed the bulk of their work. They could then petition for an attorneys’
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`fee award from their designated pool for any common benefit work—i.e., work that
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`benefitted the settlement class or the overall settlement negotiation process—irrespective
`
`of where that work was performed.
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`To the Kansas common benefit pool, the court allocated slightly under half of the
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`aggregate attorneys’ fee award; to the Minnesota pool, slightly less than a quarter; to the
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`Illinois pool, just over 15%; and to the IRPA pool, 12%. The IRPA pool was intended to
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`compensate attorneys for non-common benefit work they performed on behalf of
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`individual clients, and attorneys’ recoveries would be dictated by their clients’ claim
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`recoveries from the Settlement.
`
`1.
`
`The Kansas District Court’s Aggregate Fee Order & Final Order and
`Judgment
`
`9
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 10
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`On December 7, 2018, the Kansas district court approved the class settlement
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`agreement. As stated, the court awarded one-third of the gross settlement amount—i.e.,
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`$503,333,333.33 out of the $1.51 billion settlement fund—as attorneys’ fees. To start,
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`the court concluded it “ha[d] authority to award attorney fees and expenses from the
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`settlement fund” pursuant to Rule 23(h) of the Federal Rules of Civil Procedure, which
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`“provides that ‘[i]n a certified class action, the court may award reasonable attorney’s
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`fees and nontaxable costs that are authorized by law.’” 3 Joint App., Vol. 22, at 5111
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`(Kan. D. Ct. Mem. and Order, filed Dec. 7, 2018) (second alteration in original) (quoting
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`FED. R. CIV. P. 23(h)). Furthermore, the settlement agreement “expressly contemplate[d]
`
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`In full, Rule 23(h) provides:
`
`3
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`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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`10
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 11
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`an award of attorney fees and expenses to counsel who performed work for the benefit of
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`the settlement class members.” Id. Attorneys’ fees were “also authorized under the
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`common fund doctrine.” Id. “[P]ursuant to Rule 23(h) and the common-fund doctrine,”
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`then, the district court “award[ed] a percentage of the fund”—here, 33.33%—“sufficient
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`to permit reasonable attorney fees for all work that contributed to the class settlement.”
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`Id. at 5112.
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`Next, the court set about justifying its percentage fee award. Guiding this analysis
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`were the “so-called Johnson factors.” Id. at 5112–13; see Johnson v. Ga. Highway
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`Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
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`Bergeron, 489 U.S. 87 (1989).4 Additionally, “[i]n percentage-of-the-fund cases, courts
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`often engage in a ‘cross-check’ of the fee award against the lodestar figure accounting for
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`counsel’s hours and hourly rates.” Joint App., Vol. 22, at 5113 (alteration in original)
`
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`As we have had occasion to recite them, these factors—by which a court
`4
`assesses the reasonableness and propriety of an attorneys’ fees award—are
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`(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.
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`Kan. July 29, 2016)).5
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`As to the Johnson factors, the court found that all but the eleventh factor
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`“overwhelmingly support[ed]” a “substantial [fee] award.” Id. Summarizing, the court
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`found that the one-third fee was reasonable because: (1) “th[e] litigation required very
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`extensive time and labor by plaintiffs’ attorneys (Johnson factor 1)”; (2) the “good pace”
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`of the litigation “required counsel to perform their work subject to significant time
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`limitations (factor 7)”; (3) the litigation “involved very novel and difficult questions of
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`law and fact (factor 2)”; (4) “[t]he complex and difficult nature of the litigation, which
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`spanned across multiple jurisdictions and which involved multiple types of plaintiffs and
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`claims, required a great deal of skill from plaintiffs’ counsel (factor 3)”; (5) “the most
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`prominent and productive plaintiffs’ counsel in th[e] litigation were very experienced,
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`had very good reputations, were excellent attorneys, and performed excellent work
`
`
`The well-established lodestar method may be briefly described in the
`5
`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
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`courts, precluded other employment . . . (factor 4)”; (7) “a one-third fee is customary in
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`contingent-fee cases (factor 5)”; and “many plaintiffs in th[e] case agreed to contingent-
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`fee arrangements that allowed for fees of at least 40 percent of any recovery (factor 6)”;
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`and (8) “the amount at stake,” “the excellent results obtained for plaintiffs,” the
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`“difficulties faced by plaintiffs in succeeding on the[ir] claims,” and “a consideration of
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`awards in similar cases” (factors 8, 10, and 12) all justified a substantial aggregate fee
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`award. Id. at 5114–18. The court also noted that, “unlike some other class actions, this
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`case did not involve a government investigation or prosecution of the defendant, and thus
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`plaintiffs’ counsel were forced to undertake all of the necessary investigation and
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`discovery”—which further supported a substantial fee award. Id. at 5115.
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`As well, the court reasoned that “a cross-check of the relevant lodestar amount”
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`confirmed “the reasonableness of a one-third award.” Id. at 5120. The court
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`“consider[ed] all fee applications submitted by plaintiffs’ attorneys” in constructing the
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`applicable lodestar, “[b]ecause th[e] award [was] intended to account for all contingent
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`fee recoveries from payments to class members from the settlement fund.” Id. Further,
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`the court found reasonable the counsels’ average hourly rate, which was under $500, and
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`“the number of hours expended,” “considering the scope and complexity of th[e]
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`litigation.” Id. This information yielded a “total lodestar amount [of] approximately
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`$357 million”; application of a 1.4 multiplier to the lodestar, then, generated the
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`aggregate fee award of roughly $503 million. Id. “That multiplier,” noted the court,
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`“[was] extremely modest in light of the great risk undertaken in pursuing the[] claims on
`13
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`a contingent-fee basis.” Id. Thus, based on the Johnson factors and the lodestar cross-
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`check, the court found a total fee award in the amount of one-third of the gross settlement
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`fund to be justified in this case.
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`In the Judgment issued that same day, the court noted that it “retain[ed] . . .
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`continuing and exclusive jurisdiction to interpret, implement, administer, and enforce the
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`Settlement Agreement, to distribute, allocate, and decide any disputes among counsel
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`related to attorneys’ fees, costs and expenses, and to implement and complete the claims
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`administration and distribution process.” Id. at 5133 (Kan. D. Ct. Final Order and
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`Judgment, filed Dec. 7, 2018).
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`2.
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`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
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`the aggregate attorneys’ fee award. After briefly covering the ground the Kansas Special
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`Master traversed in her R&R, we outline—in some detail—her discussions surrounding
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`the Kansas district court’s authority to implement a hybrid allocation scheme and modify
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`(or abrogate) private agreements involving the attorneys. We also review her proposed
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`allocations.
`
`a.
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`General Overview
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`
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`To frame the issues for the Kansas district court, the Kansas Special Master noted
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`she needed to address the following “key issues” before proposing an allocation of the
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`aggregate attorneys’ fee award:
`
`1.
`
`
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`
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`In this “hybrid” class action settlement context, what attorney time
`can fairly be considered work for the “common benefit”;
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`14
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 15
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`
`
`2.
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`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.
`
`
`5.
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`The applicability of the Joint Prosecution Agreements (the “JPAs”)
`entered into by certain counsel in 2015; and
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`Application of allocation principles to the various fee applications and
`data submitted.
`
`
`Id., Vol. 21, at 4745–46 (footnote added).
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`
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`Before explaining her answers to these issues in-depth, the Kansas Special Master
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`summarized her findings and recommended, among other things, the following:
`
`1.
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`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.
`
`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. . . .
`
`On February 23, 2018, “representatives of three different plaintiffs’ groups”
`6
`signed a Fee-Sharing Agreement proposing a division of the court-awarded attorneys’
`fees. Joint App., Vol. 21, 4798–99.
`
`B.
`
`
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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 16
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`
`C.
`
`
`D.
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`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. . . .
`
`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
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`be granted to firms that requested them.
`
`b.
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`Authority to Award Fees and Modify Prior Agreements
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`
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`In explaining these conclusions in greater detail, the Kansas Special Master
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`addressed the district court’s authority to (1) bifurcate the aggregate attorneys’ fee award
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`into common benefit pools and an IRPA fund and (2) modify, abrogate, or disregard
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`private agreements, be they contingent-fee contracts between attorneys and their clients
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`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
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`along IRPA and common benefit lines was necessary “because the claims resolved under
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`[the nationwide class action settlement] include both class actions and individual actions
`16
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`

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`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 17
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`filed in multiple federal and state courts by individual plaintiffs who retained their own
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`counsel.” Id. at 4780.
`
`
`
`Given this “hybrid character,” the Kansas Special Master explained that the
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`Kansas district court’s “authority to award fees and expenses derives from several
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`sources.” Id. For starters, the court could award attorneys’ fees pursuant to Rule 23(h) of
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`the Federal Rules of Civil Procedure, which provides that, “[i]n a certified class action,
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`the court may award reasonable attorney’s fees and nontaxable costs that are authorized
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`by law or by the parties’ agreement.” Id. at 4780–81 (alteration in original) (quoting
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`FED. R. CIV. P. 23(h)). On a more general level, the Kansas Special Master noted that,
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`“the authority of courts to award reasonable attorneys’ fees and expenses pursuant to the
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`common fund doctrine and the related common benefit doctrine has long been
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`recognized.” Id. at 4781. And third, the Kansas Special Master observed that the
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`Settlement’s express text likewise accorded with these stated principles, providing that
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`“Settlement Class Counsel and other counsel representing Class Members who performed
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`work for the benefit of Class Members shall make Fee and Expense Applications . . . .”
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`Id. at 4781–82 (omission in original).
`
`ii.
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` 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