`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
`
`
`
`
`
`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.
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2
`
`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
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3
`
`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
`3
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4
`
`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.
`
`
`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.
`
`
`
`
`4
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5
`
`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”).
`
`
`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).
`
`
`
`
`5
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6
`
`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
`6
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7
`
`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
`7
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8
`
`“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
`8
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9
`
`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
`
`9
`
`
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 10
`
`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]
`
`
`In full, Rule 23(h) provides:
`
`3
`
`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).
`
`
`
`
`10
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 11
`
`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)
`
`
`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
`
`(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).
`
`
`
`11
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 12
`
`(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
`
`
`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).
`
`
`
`
`
`
`12
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 13
`
`(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
`13
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 14
`
`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”;
`
`14
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 15
`
`
`
`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.
`
`
`5.
`
`The applicability of the Joint Prosecution Agreements (the “JPAs”)
`entered into by certain counsel in 2015; and
`
`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.
`
`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.
`
`
`
`15
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 16
`
`
`C.
`
`
`D.
`
`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
`
`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
`16
`
`
`
`
`
`Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 17
`
`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