Kane County, Utah v. United States, Nos. 17-739C; 17-1991C (September 25, 2019), is a class action brought in the Court of Federal Claims by two subclasses of local government entities claiming that the federal government owed them additional payments under the Payment in Lieu of Taxes Act, 31 U.S.C. §6901, for fiscal years 2015, 2016, and 2017. The Court granted summary judgment for the Plaintiffs, holding that they were entitled to recover $17 million.
Counsel for the Plaintiffs’ class then filed a motion for attorneys’ fees, and the Court awarded attorneys’ fees equal to one-third of the amount recovered plus unrecovered costs.
The common fund doctrine
Rule 23(h) 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.” The common fund doctrine allows class counsel to request an attorneys’ fee award from the amount recovered—the common fund. The court held that the applicability of the doctrine depends on whether each class member has an “undisputed and mathematically ascertainable claim to part of the lump-sum judgment recovered on his behalf.” The Court concluded that the judgment in this case was a common fund.
But to obtain attorneys’ fees under this doctrine, there must be an inequity borne by counsel, which exists if some opt-in plaintiffs are not contractually obligated to contribute to the costs because they did not separately enter into fee agreements with counsel. Here the Court found that inequity because only the lead plaintiff had entered into a fee agreement with class counsel, obligating that Plaintiff alone to pay one-third of the judgment as its attorneys’ fee. Applying the common fund doctrine, the court held that all plaintiffs would be assessed their “fair share of costs” for the litigation.
Reasonableness of fees
Under the common fund doctrine, the Court evaluates the reasonableness of the attorneys’ fee request, weighing the quality of counsel, the complexity and duration of the litigation, the risk of non-recovery, the fee negotiated between private parties in similar cases, any class member objections to the settlement terms or fees, the percentage applied in other class action, and the size of the award.
Here, the Court concluded that counsel’s 33% fee request was reasonable and even cross-checked the amount with a lodestar approach. The lodestar cross-check is a general review of counsel’s billings. The Court calculated the lodestar amount and subjected it to a multiplier of 6.13, which is within the range courts accept under the common fund doctrine.
Under the common fund doctrine, a reasonable attorneys’ fee for class counsel is one-third of the $17 million judgment, to be paid out of the Plaintiffs’ recovery, plus unrecovered costs paid by the attorney.