*1 LC; Plantation, II; BUTT, Butt-n-Buck Hardwood William Jackson Members v. Class Nineteen Taxpayer and Three Thousand P.A.; Hirsch, P.A.; FIRM, E. Kent LAW The EVANS Nixon and David G. 98 S.W.3d
01-1307 Arkansas Court of Supreme 30, 2003 delivered January Opinion denied March for rehearing 2003*] [Petition Glaze, * Hannah, J., participating. J., grant. would *4 PLC, Clark, Carithers, Butt Davis, William & Wright, by: Jack- Firm, Firm, II; Bassett; Everett Law son Butt Bassett Law by: Woody Firm, Brooks; Wales; Law Tim Everett and by: Taylor John Jason PLLC, Green; Mourton, Ltd., Ball Howard W. & W. by: Rayburn Elliott; Brill; Elliott, & & Don Connor Odom Odom by: Bobby Chadick; P.L.L.C., Terri Dill Winters, Elrod and by: Harrington, John Estes, Estes & & Gram- Miller, Neihouse Mickie by: Harrington; Krug, Burrow, Tull & Estes, Quattlebaum Peter G. Grooms Jr.; ling, by: PLLC, Holmes, Leon for by: appellants. Fox, PLLC, Fox, Davis Davis by:
Timothy Timothy appellees/cross-appellants. This an Brown, L. appeal brought *5 Justice. Butt, II, Butt-N- William appellants, Robert Jackson 3,019 and (Butt-N-Buck), Hardwood Plantation taxpayers
Buck Court, which County from an order Circuit Washington awarded fees in a suit. The consolidated illegal-exaction that the court in the circuit abused its discretion alleges awarded, amount of fees which was of the various settlement 25% amounts for a total fee award of The $4.6 million. approximately Firm, Hirsch, named Evans and Law E. Kent David G. appellees, Nixon, counsel, were class were who awarded the fees in question. on two the circuit court cross-appeal (1) appellees points: made; stated the of the and amount refunds the trial incorrectly (2) court erred in Butt to solicit allowing appellant representation Jack members of the class. This case from stems exaction suits illegal filed in 1998 in northwest Arkansas against Washington County and various cities and school districts within that viola- county tion of Amendment 59 of the Arkansas Constitution. Febru- On 12, 1998, the circuit court ary entered class certification order which defined the class as “All and entities that have persons paid 1993, or 1994, real ad valorem tax for the personal property years 1995, 1997, and units in any following taxing Arkansas; Arkansas: Washington County, City Fayetteville, Fay- 1; Arkansas; etteville School District No. City Springdale, Spr- 50; School ingdale District No. West Fork School District No.
141; Grove, Arkansas; of Prairie Prairie City Grove School Dis- 23, Elkins, Arkansas; trict No. Elkins School District City No. 10; 95; Greenland School District No. Winslow School District 20, No. Lincoln School District No. and 48 Washington County, Arkansas The order further ordered that notice of the class [.]” action be individual notice given by newspaper publication in accordance with Arkansas Rule of Civil Procedure 23.1 5, 1998,
On March Mr. Butt filed a motion intervene in intervention, the suit.2 In his attached he stated that complaint be substantive issues to resolved was among “whether how much counsel for the class will from what source.” He further asserted his desire to suit for the participate pur- 1 This court held that Rule 23 is not recently applicable brought actions under Article T 13, of Arkansas Constitution. See T & Chem., § (2003). v. Priest, Inc. 351 Ark. S.W.3d 750 That was not in the issue raised precise instant case. 2 The assume Butt-N-Buck Hardwood Plantation also intervened but parties record reveals that Mr. Butt was the sole intervenor. *6 much, whether, the source of how and of “determining
pose 17, 1998, Mr. On to class counsel.” April paid attorneys’ court. the circuit to was motion intervene granted Butt’s each 3, 2000, for govern- of settlement stipulations On July were filed to court all of which were subject approval, ment entity, In each Court Circuit Clerk. County stipu- with the Washington lation, agreed and governmental entity to receive a shall have prorata opportunity “[taxpayers [sic] less the award exacted ad valorem taxes of all paid refund illegally fees, to several of fees. With of ...” regard attorneys’ attorneys’ read: settlements proposed Attorneys. Fees 2.2 Attorneys’ of Plaintiff’s award attor- shall an of a. for Plaintiff Attorneys request of for Class an amount representing fees and costs neys’ [sic] taxes, sub- of exacted ad valorem illegally property 33-1/3% the be to The directly to court which shall payable ject approval, Firm, P.A., Firm, within days Law and Hirsch Law Evans Defendant shall not of Order Settlement. Approving entry fee of of the fund. to 33-1/3% object requested filed read: of settlement were Other stipulations Attorneys. Fees Attorneys’ Plaintiffs’ to Plaintiffs make Court application for the shall Attorneys and for the Plaintiffs in representing receive costs (33 and percent to exceed one-third thirty-three an amount not to The District 1/3%) agrees of the Settlement Amount. costs to a fees and up such for object application (33 1/3%) and one-third thirty-three total amount of percent the fees and costs Amount. The exact amount of the Settlement Plaintiffs will be determined and Attorneys to be paid Court, out amount shall be awarded which Amount. reduce the Settlement thereby Settlement Amount sums that will should uncertainty develop Due to the payment taken, the Parties to of this any part Agreement any appeal that the damages settling agreement stipulate agree value of on money shall be time appeals the event parties are or shall become due which due for any payment amounts and setdement agree- the terms of this stipulation under payment that any ment. further agree stipulate parties due of any payments sufficient to cover the value bond should be District further agrees pay due hereunder. The or to become *7 the Court as follows: one-half amount as such approved the Order Settle- five of the of (5) days entry Approving within October without ment and the other half on or before interest.
In the of settlement for County, Washington stipulation fees: was written regarding attorneys’ following Fees Attorneys’ Attorneys. of Plaintiff’s an award of fees attorneys’ for the Plaintiffs shall seek as Attorneys $1.5 million the Plaintiffs the sum of and costs for representing Amount, $375,000 shall be from the Settlement of which payable Firm, P.A. and The Hirsch and to The Evans Law directly jointly $375,000 and The Nixon Law Firm within 5 days Law Firm to The remaining of Order Settlement. entry Approving $375,000 to The Evans fees in the amount of joindy $375,000 Firm, Firm and to The Law P.A. and The Hirsch Law Firm be to each firm on or before directly Nixon Law shall paid 10, 2001, without interest. will not to County object October such.
In the for the School settlement stipulation Springdale District, was written: following Fees
2.4 Attorneys’ Attorneys. of Plaintiffs’ to the Court to for the Plaintiffs shall make Attorneys application and the Plaintiffs in receive costs for representing (33 percent an amount not to exceed one-third thirty-three the Settlement Amount. The District 1/3%) agrees fees and costs to a to such for object application up 1/3%) of (33 amount of and one-third thirty-three percent total and costs Amount. The exact amount of Settlement be determined and of the Plaintiffs will Attorneys paid Court, which amount shall be out awarded by reduce the Settlement Amount. Settlement Amount and thereby further such amount as approved The District agrees pay of the time in (5) the Court as follows: one-half within five days fees becomes order such attorney’s which the Court’s approving October with- a final order and the other half on or before interest. out Evans, 14, 2000, E. class counsel Marshall Dale
On August Hirsch, individual Brodacz filed Kent petitions Stephanie for the fees as class counsel following award of attorneys’ ad valorem City Fay- members: County taxpayers, Washington Elkins ad valorem ad valorem etteville City taxpayers, taxpayers, ad ad valorem of Prairie Grove City Springdale City taxpayers, ad valorem School District valorem taxpay- taxpayers, Fayetteville ers, District ad valorem Elkins School taxpayers, Springdale ad Prairie Grove School Dis- School District valorem taxpayers, District ad valorem tax- trict ad valorem Lincoln School taxpayers, District ad valorem Greenland School taxpayers, payers, ad valorem From Winslow School District August taxpayers. 21, 2000, for each notices of the settlement through hearings the circuit clerk. Each of class members were filed with group *8 notice either stated the amount of to by attorneys’ agreed at the would consider “the or stated that the court hearing parties, reim- of counsel for an award of fees and application plaintiffs’ bursement of All notices of settlement hearings expenses[.]” in refer- included the of 33 of the settlement amount 1/3% figure fees, ence to with the of the attorneys’ exception Washington included exact notice which figures. County 31, 2000, Mr. Butt and entered On Bassett Woody August 3,019 their as counsel on behalf of who appearance taxpayers, class, and of their were members of notice objection gave class counsel. The list of the tax- attorneys’ requested was attached to the notice and payers entry appearance.3 5, 2000, On Mr. Butt moved for September summary judg- ment fees based on the that insuffi- attorneys’ allegation regarding cient notice had been to the classmembers about their given right 6, 2000, to those fees. On attorneys’ Wayne object September class, Butt, a member moved to Mr. Krug, appoint ad litemfor the classmembers on the fees issue. guardian Mr. Butt filed his to class counsels’ for attor- petitions response 26, 29-,2000, fees on 2000. On neys’ September September was denied. That same motion judgment day, summary 3 Although original diere well have been more on the no one list, may taxpayers figure 3,019 now contests the taxpayers. denied motion for of a ad litemwas guardian appointment circuit court. 16, 2001, order
On March the circuit court entered its the settlement for approving Washington County.
however, retained of the classaction in order to deter- jurisdiction mine, other the award of fees and associ- among things, ated costs. The circuit entered similar orders court subsequently 26, 2001, in the other March it entered settlements: on orders the settlements with the approving City Fayetteville, City 9, 50; School District No. on Springdale, Springdale April 2001, it entered an order the settlement with the approving City Elkins; 12, 2001, on it entered orders set- April approving 10, tlements with Elkins School District No. Prairie Grove School 23, 141, District No. West Fork School District No. Lincoln School District No. Greenland School District No. 20; 13, 2001,
Winslow School District No. and on it April entered orders the settlements with the of Prairie approving City Grove and School District No. 1. Fayetteville 14, 2001,
On several the circuit May following hearings, it, court issued its order fees. In the court awarding attorneys’ made numerous of fact and conclusions of law and findings awarded fees at the rate of 25% of each settlement amount, for a total award of $4.6 million for class approximately counsel. Each the court- government entity subsequently paid fees, ordered with the attorney’s exception Springdale *9 District, School which will one half of the amount due when pay is final. appeal 14, Notice of of the circuit court’s 2001 order appeal May 3,019 11, was filed Mr. Butt and on 2001. taxpayers June Notice of cross was filed class counsel on 2001. appeal June I. Motion to Dismiss Firm, P.A., Hirsch, The Evans Law E. Kent appellees, P.A., Nixon, and David G. have moved to dismiss the of appeal 3,019 motion, In class members. that appellant taxpayer they 3,019 assert that the law in Arkansas is clear that the alleged members do not have the circuit court’s deci- standing appeal failed to either (1) fees because they
sion awarding attorneys’
did not
out
the circuit
(2)
opt
in the case before
intervene
did not file
lawsuits challenging
or (3)
separate
Lisle,
v.
cite Haberman
the class
They
representation.
adequacy
of their motion.
(1994),
Ark.
884 S.W.2d
support
that the
counsel further assert
their
on
brief
appeal,
Mr.
all of the
be dismissed as to
including
should
appellants,
appeal
Plantation,
have no
Hardwood
as they
Butt and Butt-N-Butt
that
counsel maintain
financial interest in this
Class
pursu-
appeal.
remain
all undistributed funds
ant to the settlement agreements,
entities, each of
of the
respective governmental
property
to 33 1/3%
which has already agreed
attorneys’
up
and in most cases has already
settlement amount
costs
paid
in accordance with the court order. Class
costs
attorneys’
counsel,
result,
that the
have no financial
as a
maintain
appellants
counsel.
contend
interest in the fees awarded to class
Finally, they
the amount
there was no
that because
testimony regarding
claimed or
have claimed for
which the
could
money
appellants
refunds,
there is no
to determine
as a result of this
way
litigation,
an unknown amount was an unreasonable
whether
of such
25%
fee.
that,
admit
to the motion and
with
The appellants respond
3,019
Lisle,
of Haberman v.
case
taxpayers,
supra,
respect
nonetheless, that this court over-
cannot be ignored. They urge,
in Haber-
rule that decision.
out
since our decision
They point
man,
the Ninth
has held
Powers v.
Circuit Court
Appeals
Eichen,
that unnamed class mem-
577
Lisle,
Haberman v.
this court held that
supra,
where the
had failed to intervene in a class
appellant
action at the
level,
circuit court
he did not have
the class-
standing
appeal
action settlement order
fees and
approving
costs.
attorneys’
Haberman,
this court to overrule
Although
appellants request
we note that we
reaffirmed our
in that case in
recently
holding
Am.,
545,
Ballard v. Advance
349 Ark.
[T]his S.W.2d 262 (1994), continues to be the controlling precedent Haberman, Arkansas. In this court found that for unnamed class members to have standing a class-action appeal setdement in state those classmembers must have intervened at the trial Haberman, court level. supra. unnamed mem- Non-parties bers of the class have who failed to intervene are from precluded Haberman, appealing classsetdement. supra.
349 Ark. at
addition,
An
facts,
distinction
important
exists between the Ballard
where
involved,
of a class settlement was
appeal
the case at
hand, where an
of the amount of the
appeal
fees to class
counsel is the issue. The Haberman case did concern an
appeal
fees, and this court addressed
split
authority
of a class
regarding
member to intervene in
right
such cases
and chose to
on the
of an
rely
Circuit decision.
reasoning
Eighth
Alleco, Inc.,
See
Assoc. v.
Croyden
578 to a Yet, an case involved objection has been eroded. Croyden to attor- and not an a class member objection settlement class fees. neys’ 3,019 dismiss the motion to regarding
We grant Nevertheless, Lisle, we under Haberman v. supra. class members entertain in a that we will subsequent serve notice by opinion be over Lisle, v. should whether Haberman case the issue of supra, fees a class member ruled in order to permit when that class member merely the circuit court awarded by at the trial-court level. but did not intervene to the fees objected an distinction between will do so when the We 16, 13, the Arkansas Constitution under Article class action § discussed under 23 has been thoroughly and a certified class Rule Scardelletti, has been of Devlin v. thoroughly supra, impact analyzed. to Mr. to dismiss with
We motion regard deny Butt, did intervene on issue of attorneys’ who specifically and, thus, is to the Haberman before the circuit court not subject Furthermore, have a that Mr. Butt does we conclude decision. he a interest in this matter because has financial interest pecuniary the circuit court’s attorneys’-fees affected by disposition $3,166,199, Ark. In Re: 987 S.W.2d issue. See Therefore, he See id. has (1999). standing appeal.
II. Factual Findings
that under Powellv.
Mr. Butt
as his first issue
Henry,
argues
award
which examined an
(1980),
267 Ark.
Class counsel that the circuit court found respond correctly that there was an refund of over $18.6 million cre- aggregate pool ated as a result of class counsel’s services. further They emphasize the court’s that the (1) members of the findings enjoyed common benefit in the rollbacks that were of the set- millage part tlements, and that the (2) ser- persons receiving government vices for with the collected are illegally money necessarily from whom the taxpayers collected taxes were illegally exacted. Class counsel also claim that the do not dis- appellants the circuit court’s pute the services of class counsel finding were “of the caliber.” underscore the highest circuit They court’s that of over finding practicing attorneys Washington County, only counsel who will experienced a class represent in an Lisle, case were class illegal-exaction counsel and who John is not involved in this litigation. contend that David Finally, they Nixon, who was out as singled testified that he was inexperienced, also on an Amendment 59 working case in Ben- ton had an County, undergraduate was a degree accounting, accountant, certified had law for public practiced twenty years, and was involved in a substantial amount of tax work in his prac- tice. Class counsel conclude that the balance between Evans’s and Hirsch’s class action and Nixon’s tax experience experience a successful combination. equaled attorney
When of fact a circuit reviewing findings by this court uses a erroneous standard. Ark. clearly See R. Civ. P. Thus, 52(a). the circuit court findings will not be set by aside unless are they clearly against evidence. preponderance the circuit due regard this court gives id. Additionally,
See id. witnesses. See credibility judge court’s opportunity Mr. Butt in advanced opposition then to case law We turn v. first case is Powell fees. The Henry, attorney’s payment Powell, an order award- examined an this court supra. others action by Henry fees in an brought ing and the North Little Rock and aldermen of the mayor against city alleging Little Rock Electric Department, North $639,226.24. fees in Attorneys’ its customers charged improperly $95,884.31 were awarded to counsel representing the amount of officials the customers in the city’s appealed litigation. fees. order maintained noted that the action
The Powell court in the a class action which resulted recovery customers was that the a common fund and which constituted amount substantial in the the rate litigation against payers attorneys represented *13 factors which were then referenced several presented We city. time of witnesses: (1) circuit court testimony the through expert rates; with classactions and in utility (2) dealing spent; experience the (4) the on counsel’s the harmful effect of litigation practice; (3) the nature utility (5) litigation; specialized complexity cases; of a the lack of a continuing lawyer-client rate (6) prospect case; the the (8) (7) contingency urgency relationship; fee; that the suit was entity. and the fact (9) against political there was a sub- then made these (1) The circuit court findings: class; there was a on the (2) benefit bestowed stantial economic (3) incurred by attorneys; hardship professional personal was (4) a vindication of an economic right; litigation there was novel; and substantial time was devoted the case was difficult (5) it; skill com- extraordinary and (6) attorneys possessed petence. factors, concluded, without
This court
endorsing specific
discretion in
had not abused its
awarding
that the circuit court
discussion a comment on
fees. We included
our
these cases:
to take
need
attorneys
of the fee allowance
in our consideration
An
factor
important
will
compensation
is the realization
inadequate
this case
cause
who are
to handle this
attorneys
competent
type
litiga-
it,
it,
tion to shun
or if
fail to devote sufficient time to
they accept
or
adequately
case. This is an
prepare
present
appropriate
consideration in
matters
this sort. Old
InsuranceCo. v.
Republic
Alexander,
1029,
245 Ark.
Powellv.
meritorious under Constitution, 13, Arkansas Article § which the court orders or town to refund or return to any county, city, taxpayers illegally exacted the or town, reasonable moneys by county, city, apportion part the of the class members to of record and order the return or recovery attorneys refund of the balance to the members of the class represented. (b) filing after If, of a reasonable of time for the of claims for expiration period illegally the exacted as ordered the residual funds said exist, moneys by residual funds shall be deemed abandoned and escheat to the or town county, city, which exacted same. involved; (5) of the issues obtained; and difficulty the (4) novelty similar ser- in the legal locality the fee customarily charged limi- the time vices; (7) fixed or contingent; the fee is whether (6) circumstances; and (8) the client or the tations upon imposed client, the the likelihood, that if acceptance apparent other will employment preclude employment particular Huckabee,351 Ark. No. 25 v. Sch. Dist. alsoLake View See lawyer. 472 (2002). 91 S.W.3d find- court made the following the circuit In the instant Mr. Butt: to the issues raised by relevant ings and com- in this case are experienced Class Counsel 30. area of exaction. illegal in the attorneys petent received a benefit of the 42. The members plaintiff Settlement Funds. the establishment of the from class received a benefit The members of plaintiff 43. contained in the Settlement rollback provisions from millage Agreements. a benefit class received
44. The members of plaintiff defendant with to those respect the tax year savings from the rolled back leave their at millage entities that chose to taxing levels. that class from this lawsuit were
45. The results obtained with all settlement agreements counsel successfully negotiated both the oppor- defendant entities taxing provided fourteen tax to claim refunds and for millage for class members tunity $18,600,000.00. amount is over rollback relief. The settlement settle- as a result of the fourteen rollbacks affected millage taxes from the plain- removed the levy illegal ment agreements school September class. The intervenors since argue tiff levels that rates to old millage pre-rollback elections raised roll- benefit from enjoy any millage class did not plaintiff that the millage with Class Counsel backs. This court agrees the date of the approval benefits are evaluated as of rollback a benefit certainly and that there is settlement agreements a tax increase. As a direct allowed to vote upon received being were County the citizens of Washington pro- result of this lawsuit and vote on polls right opportunity go vided Elkins, Fayetteville, Springdale the tax increase. The cities levels and Washington their at the lower millage chose to leave *15 their County increased one-half of only millage approximately by Therefore, the amount which it was of the by rolled back. all will actual tax as a result of the plaintiff taxpayers enjoy savings short, settlement In the agreements. one of results of this lawsuit the is that citizens of decide whether to raise Washington County their own taxes. There is no that the class question plaintiff received a substantial economic the benefit and vindication of an economic It right as a result this lawsuit. be that there may have been and will abe loss of services as a result of lawsuit this and this Court understands intervenors’ concerns and arguments However, in that it regard. should be the decision of the people whether Washington want services or lower County they taxes. All of the of the various entities tes- representatives taxing tified that if the money was collected did want illegally they not They it. also testified favor of the said settlements and all they could they settlement amounts. Another result this pay from lawsuit was that it some settled issues of first impression regarding of Amendment A further interpretation 59. result this lawsuit is that it of an collection exaction. If stopped illegal filed, lawsuit had not been it is reasonable to assume on based this record these taxes continued col- would have to be lected in violation of Amendment 59. us,
In case before the circuit court’s are findings compara- ble to those enumerated Chrisco and referred to in Powell. The circuit found court that a settlement of over $18.6 amount million rollback were relief obtained That counsel. taxpayer by to the factor of the economic benefit goes class and results obtained. not class member claimed his Although every refund, class counsel did obtain a each refund for member. amount of the refunds aside set each government by entity definable, as each settlement clearly identifies agreement proposed amount made available agreed-upon by entity addition, class claims. as found circuit satisfy occurred, result was obtained that had the positive litigation each have ille- could continued government entity collecting Powell, exacted funds. A vindicated stated in or a gally as right, result, Chrisco, as stated in was obtained virtue of the positive fact that each member to vote on the matter of got right whether he or she be taxed rate been desired to at the which had forced As for the illegally taxpayer. upon competency *16 584 and as of taxes his David Nixon’s knowledge experience
attorneys, in a similar Amendment 59 an attorney, including representation a find- in certainly case Benton County, support and of counsel as Chrisco. of ability required by ing experience and of the circuit court was The analysis thorough in court erred We cannot the circuit say clearly well-reasoned. and in that an benefit to the class determining economic finding David Nixon was counsel. experienced
III. ExcessiveFees of attor- Mr. next that a the award of Butt argues comparison at Powell v. award in the case in neys’ Henry, supra, hand shows that the circuit court abused its discretion fading he with the standards takes issue consistently. apply Specifically, Powell the circuit court’s based on and contends findings indicate because six the fifteen used circuit court factors Powell, because factors show an abuse of with two other parity discretion, seven no and because factors remaining provide Powell, reason award more fees than what were awarded in good circuit its court abused discretion “by higher granting formula for counsel fees where none of the factors Powell.” indicated fee structure than higher II, As he claimed under Issue Mr. Butt under this urges point that the economic benefit to the class was Moreo- questionable. ver, he suffer or claims class counsel did not personal profes- to in sional or other as referred forego hardship employment the Powell Powell. he maintains that while court noted Finally, the fees in that absence class members awarded objecting case, the over in the 3000 members presence objecting case the fee. instant has considerable significance deciding Chrisco, its this court reiterated standard for review award fees: circuit court’s of attorneys’ ing that due trial
We have also noted previously judge’s and the of service intimate with record acquaintance quality rendered, we usually superior recognize perspective trial factors. an assessing Accordingly, judge applicable will not be aside absent award set an abuse attorney’s court. discretion trial at Ark. at 800 S.W.2d citation (internal omitted).
Nevertheless, this court has found an abuse discretion declined award a fee where economic benefit percentage did not lend itself to a firm the fee where award was to figure *17 be the either state or local. See Lake View government, by Huckabee, Sch. Dist. No. 25 v. supra.
It is clear Mr. Butt that the fee award comparing made the circuit court class counsel in this the fee by case to award in affirmed Powelland that we are limited what arguing by However, was in awarded Powell. the Powell case does not pre scribe a threshold for fees in all awarding attorneys’ subsequent cases. We conclude in that the circuit court the case before us the in engaged made that proper analysis clearly findings sup each Chriscofactor. the circuit port because court’s con Merely sideration of those did not factors effect the same result that in as Powell not mean the does circuit abused court its discretion.
In the instant arewe confronted for the first directly time with the issue of is a what “reasonable of the part recovery the class members” to be as fees. SeeArk. apportioned Code Ann. 26-35-902 1997). Section 26-35-902 reads: (Repl. §
(a) It is the of this state that circuit chan- public policy courts in meritorious cery may, under Arkan- litigation brought Constitution, 16, 13, sas Article the which court orders any § or town to refund county, city, or return to moneys taxpayers town, exacted the or reason- illegally by county, city a apportion able of the recovery of the class members to part attorneys the record order the return or refund of balance mem- to the bers of class represented. If,
(b) after of a reasonable of time expiration period of claims for the exacted as filing illegally moneys ordered exist, residual said funds shall deemed funds residual abandoned and to the which city, escheat or town county, exacted same.
Ark. Code Ann. 26-35-902 1997). (Repl. §
586 the con court reduced percentage
The circuit 25%, but fee applied percentage from 1/3% tingent settlement each case for a total settlement pool against $18,602,277, as applying percentage amount opposed which was claimed amount taxpayers, total against this, circuit court $8,629,634. we conclude By doing of a rea in terms its The statute clearly abused discretion. speaks of the class members” “recovery being appor sonable part of what might as and not a reasonable part tioned of the words indicates have been recovered. plain meaning which a is the amount that what recovers actually against taxpayer Tube& Conduit Corp. must be See Omega applied. percentage Moreover, 317 (1993). v. Ark. S.W.2d Maples, view, obtained,” factor which is crucial under our “results direct ben either a Powell or Chriscoanalysis,speaks analysis have receives rather than what might efit taxpayer taxpayers claimed. as assessment of fees
The dissent reads 26-35-902 requiring § *18 But that the full settlement amounts. interpretation against which reads at odds with clear statutory directly language a of the the class members recovery reasonable part “apportion occurs, balance of the record.” After that attorneys To extent the are then to the class members. full claims paid members, the are not claimed the class bal- settlement amounts by to the This ance the fund escheats interpre- government entity. not clear from the but is tation is statutory language entirely only fact fees that are assessed attorneys’ being reasonable light money. against taxpayer Cash, v. Neither Powellv. nor Little Rock Henry, City supra, dissent, Ark. 229 as cited (1982),
277 644 S.W.2d by 26-35-902, authorizes the award of address or which interpret § cases, even statute fees in attorneys’ though addition, in effect time both were decided. In not was at the cases is the Court’s decision in v. United States only Supreme Boeing Gamert, on U.S. 472 this (1980), binding Van 444 precedent 26-35-902, statute, no as but there was such was § least one other in that case. at Finally, Court by interpreted v. held case. In E.F. state has as we do the instant Goodrich 587 Inc., Hutton 681 A.2d (Del. 1996), Group, Supreme of Delaware affirmed a court’s of fees Court award based chancery on claims submitted in a suit. only class-action remand
We this case circuit court to assess fees on the based amount claimed the classmembers attorneys’ by in accordance with There is one opinion. remaining problem, from the however. We note briefs in this case as well as from oral that in all instances for the School argument except Springdale District, the have been their fees attorneys already paid by as entities ordered the circuit court. government Generally, of a amount renders a subse party’s voluntary payment judgment contest of the moot. See v. quent judgment by party Shepherd Co., Auto Cas. State & Ins. 312 Ark. S.W.2d Prop. Here, however, it (1993). is not the who attor parties paid intervenor, fees who are neys’ the amount but an contesting Mr. Butt. The is whether an can intervenor unravel question a notice of no merely when filing super sedeas bond has been or obtained. posted stay
Mr. Butt raises the of collusion between the specter counsel, were an not able paying parties intervenor a notice automatically stay payment by filing However, Mr. Butt no appeal. took order stay steps fees or awarding attorneys’ bond.6 Under post supersedeas facts, these we that the hold issue of have fees that been is moot. voluntarily paid
IV. Notice Mr. Butt next contends that members of the taxpayer received two notices this case: a class-certification notice (1) *19 action; members of the class and advising prospective pending (2) notice class members of their to published advising object right to settlement. His is that neither notice proposed argument informed of their members to to fees object for right attorneys’ class counsel. He that further maintains to award attorneys’ (City Springdale) Two of the and did move to parties Fayetteville City stay the order to fees but later their withdrew motions. pay attorneys’ to of their notice to class members right object
without proper law, without due them of substantial process property deprives Constitution and 14 of the United States Amendments 5 violating Procedure. Addition- the Arkansas Rules of Civil and Rule 23 of when, that while settlements he contends stipulated ally, where, be in refunds after and a certain amount would how had clear that no settlement been court it was abundantly approval, He, court to this con- reached on fees. attorneys’ finally, urges the notice that was classrepresenta- sider the fact that published fees, notice which articulated drew while his tives no objection 3,000 in over members to fees resulted of class challenge right 3,019 that the fact that the He concludes despite objections. lack this issue should addressed by members standing, may interest. court because of its substantial public orders that circuit court’s Class counsel respond approv- were all filed of settlement fourteen agreements ing separate time March from through record period during 13, 2001, all issues before the and that those orders resolved April of a determination of fees. with the exception an the issue of notice Class counsel submit that regarding objec- have been within 30 tion to should days appealed of the orders the settlements. appellants’ entry approving counsel, fashion, failure to in a timely argue requires counsel make addi- dismissal of this on Class point appeal. held that not was tional that the circuit court correctly point only sufficient, Butt, but that Mr. as the settlement notice attorney contents the objectors, agreed approved specifically The circuit court said: the notices the settlement. concerning I and I was took this case over from another advised back Judge had the limited some time that intervened on ago people objec- we tion fees. And when notice got por- settled, like tion I was the case had been I felt it was advised the Intervenors be involved at that important point, especially I then I our conference call notice. So think shut down first Mr. Butt be in our conference call when I asked that involved call he said notice he was. conference particular him. to be fine with appeared *20 The court further found that that was in the involved “[e]veryone consulted, case was to it. was said the set- agreed Nothing during tlement with to of the notice.” regard hearings adequacy
We underscore the fact that Mr. Butt is the sole again who has to this issue. Mr. remaining appellant standing Butt, as the circuit court specifically emphasized, agreed contents of the notice settlement. It seems somewhat regarding inconsistent for him now to that the he contend notices approved were with to faulty fees. regard objecting
In the instant two notices were to class provided desired, members. The first if that a class member so he provided or she had the to enter an before the circuit court right appearance at his or her own The second notice either expense. expressly alerted class members to the amount fees or notified proposed that members the court would take class counsels’ up application for fees and referenced all members’ at the right settle appear ment and show cause hearing of settlement why stipulation should It is of attor approved. undisputed payment fees was neys’ settlements. the exact amount part Although fees had not been decided the circuit court at upon by notices, time of the the notices alerted class members certainly that an award of fees anwas issue still to be decided outstanding by the circuit even had been though they agreed entities. if a class governmental Obviously, member could chal settlement, lenge could facet it person any challenge such as the refund itself or the fees or other any matter negotiated class counsel and set forth in the notice.
We the notice under the Due analyze Process point Clause of United States Constitution because an exac illegal tion is at issue and not under Rule the Arkansas Rules of Priest, Chem., Procedure. See T T Civil & Inc. v. 351 Ark. facts,
S.W.3d 750 (2003). Under these we fail discern how the Due Process Clause was violated. The circuit court did not err Mr. Butt on this finding against point. *21 Ad Litem
V. Guardian is that a this is once settlement Mr. on theory Butt’s point action, in a fee recovery class counsel’s interest in a class achieved conflicts with interests becomes self-serving directly fee, the lower recovery because the class members higher contends, litem, he would A ad protect of the class. guardian Moreover, to he submits that pro- interests of the class. power in Rule means of a ad litem inherent tect the class by guardian a the circuit court acts as fiduciary Fie states that while 23(d). fees, this the circuit court in to on counsel with the class respect full, their one-third have awarded counsel case would likely to his that percent- claim had it not been for opposition vigorous Thus, have been ad litemwould age. guardian appointment class, as the issue He concludes that with of notice proper. this the court to not address issue decision “prospectively all future all members of classes.” potential oppresses no the issue. As There is need for court to reach Mr. Butt alone can classmember with standing sole appeal, and he was informed fully knowledgea mount this argument, conflict between ble on the fees issue and attorneys’ potential Moreover, and class counsel on the fees issue. himself he failed to the orders setdements timely approving appeal fees. The circuit which in resulted payment did err on this court point.
VI. Cross-Appeal
Ini
raise two
on
Class counsel
points
cross-appeal.
contend that the amount of
refunds
to tax
gross
tially, they
$8.6
$5.5
in
million and not the
was
excess of
actually
payers
the amount of net
million
the circuit court which was
used
fees. This issue is not suffi
refunds after deducting attorneys’
it.
class counsel for us
address
Secondly,
ciently developed by
Mr.
that the
erred
class counsel
circuit court
allowing
argue
them
Butt to
members of
to represent
solicit
taxpayer
Butt
fees. Because we hold
Mr.
only
objecting
and, further, is unneces
this matter
it
has standing
3,019
to determine the
standing
any
us
sary
taxpayers,
on
rendered
the solicitation
would have no
judgment
point
practi-
cal
effect on the
See Forrest
legal
legal
Con-
pending
controversy.
Milam,
str.,
v.
Quinn
Inc.
345 Ark.
VII. Conclusion conclusion, We our emphasize, that under precedent *22 Lisle, 3,019 Haberman v. class members are without supra, to the amount of and standing Mr. appeal attorneys’ only However, Butt can that issue. we will revisit appeal the Haberman decision as it relates to the fees when the challenge attorneys’ issue next itself. presents
Because the fees have now been attorneys’ paid counsel, class with the sole School exception Springdale District, which owes the balance of the fees after the order relating “final,” fees becomes we consider the issues raised the fees regarding already to class counsel paid voluntarily to be moot. We address the issue with only regard Springdale School District. We reverse the circuit court on fees awarded in connection with that school district and remand for the circuit court to determine fees based on the amount of the actual taxes recovery illegally-paid members in that dis by trict. We note on this that class counsel Mr. Butt’s point question to contest standing by School Springdale District, but we leave that issue for the circuit court to resolve.
Motion to is dismiss in and denied in granted part part. is affirmed in and reversed and Appeal remanded in part part. is moot. Cross-appeal
Thornton, J., concurs.
Corbin, in Imber, Hannah, concur JJ., dis- part sent part.
Glaze, J., participating.
RayThornton, I with the Justice, concurring. agree result reached this case majority opinion However, I write remanded. separately be reversed and should fees not moot. my issue of is I think that the attorney’s because remand trial be considered that issue should upon opinion, court. dissent-
L. concurring part; Justice, Corbin, fees awarded in amount attorney’s ing part. Donald However, in the I must concur judgment this case excessive. of the fees is I that the issue of reasonableness because agree from or other- moot, failed to Butt because Appellant Jack the settlements. wise seek of the judgments approving stay notes, of the fourteen each taxing As majority opinion claims, entities in this case settle agreed payment each of setdement agreements provided fees, a fixed of the settlement or as either as attorney’s percentage settle- A fairness consider proposed dollar amount. hearing 5, on 2000. No was held in the trial court ments September At the con- at the fairness hearing. member appeared all of the settle- the trial court clusion of the approved hearing, 9, 12, March March April ment April On agreements. *23 trial entered written and the court separate judg- April the No each of settlement agreements. appeal ments approving to and no was was taken these stay sought pro- from judgments, Thereafter, of thirteen the fourteen taxing hibit their execution. the the full amount of their including entities paid judgments, School Dis- fees to counsel. the Only attorney’s Springdale its trict has to one-half of yet judgment. pay not from the Because Butt did judgments approving execution, their and because all the or seek stay settlements full, been in Butt has waived but one of those have judgments paid the fees under those attorney’s to reasonableness of any challenge circumstances, the it In my given particular judgments. opinion, to back the be unfair to class counsel would pay patently require I concur thus already monies received probably spent. already be the that the trial court’s award of should with majority affirmed, the fees that remain by but for unpaid portion School District. Springdale said, I
That with Butt’s I am being position. per- sympathize offended amount of the award in this sonally by especially since it be will of whom do not by many taxpayers, believe that have benefitted from this can suit. While there they no be doubt that the and collection of an tax is a levy illegal wrong action, that must be this should not entitle the right legal put by to a is attorneys paycheck equivalent winning This is true that in most lottery. especially considering illegal- cases, exaction the class members do feel themselves particu- do not seek action until are larly aggrieved legal they prodded to do so who seek out these attorneys cases. actively
I do not mean that such should not be attorneys imply or that should limited an compensated they necessarily But, fee for their work. I hourly cannot of these ignore reality cases, in that fees will necessitate payment attorney’s either in or an increase taxes a reduction of ser- important governmental vices. I therefore Butt and his to take this encourage attorneys cause to the General so that it Assembly, consider may amending Ark. Code Ann. 26-35-902 1997) (Repl. provide cap § award in attorney’s cases. I with Imber that the Finally, agree majority wrong Justice that the fees should be based on the refunds holding attorney’s claimed, rather than total amount of the settlement refunds. From of section it is clear that the term my reading 26-35-902(a), refers total amount of “recovery” monies obtained in suit from the I entity. dissent from that taxing Accordingly, part counsels’ fees to a majority’s opinion limiting portion refunds claimed the class members. actually Imber, Justice, concurring part
Clinton Annabelle IWhile concur in the dissenting part. majority’s *24 decision to the motion to dismiss and in the decision to deny fees, the award of the I dissent from the uphold attorneys’ major- decision to award fees based on the claimedamount ity’s rather the than total amount of the settlement stat- refunds. The ute in fees suits is codified at awarding attorneys’ illegal-exaction Ark. Code Ann. 26-35-902 as follows: § — residual Disposition
Award funds. of of that circuit and chan- of this state (a) policy It is the public under Arkan- brought in meritorious may, litigation courts cery 13, 16, Constitution, any which the court orders in Article sas § taxpayers moneys to refund or return to or town county, city, town, a reason- the or county, city, apportion exacted illegally by of attorneys the class members recovery of able part return, the the mem- refund of balance to order the or record and of the classrepresented. bers If, for the a time period after reasonable
(b) expiration by as ordered the the exacted moneys of claimsfor filing illegally exist, deemed funds shall be funds said residual residual or town which county, city, and escheat to abandoned exacted same. 1997).
Ark.
Ann.
26-35-902
Code
(Repl.
§
is
construction
words their
The first rule
give
statutory
Yamaha Motor
v.
Corp.
usually accepted meaning.
ordinary
Yamaha,
(2001);
344 Ark.
In examining apparent First, and an results. attorneys orderly contemplated progression deducted, refunded to tax- then the balance returned or are and, then not claimed finally, taxpayers payers, any portion escheats back to taxing authority illegally-exacted To inter- in the first give “recovery” majority’s funds place. be to wait for claims to be made and then award would pretation but the statute of those claims the attorneys, speaks percentage the claims fees are not apportioned, paying after before. has itself in issue of the term “recovery” presented court in an case. decision any previous decisions, However, those cases our illegal-exaction surveying
595
that do mention an
that
fee show
the fee
was
attorneys’
percentage
funds,
based on
entire
pool
illegally-exacted
merely
the claimed amount. In
the case of Powellv.
267
particular,
Henry,
Ark.
An
suit that
was decided
1983
that
shows
the trial court
that
case also used the total fund as the
for
basis
its award of an
Cash,
fee. See
Little Rock v.
attorney’s
City of
Cash,
Ark.
As stated in decisions of this an many previous illegal- exaction suit is a classaction. United constitutionally-created States Court has stated that the basis for an Supreme unequivocally fund, fee ain action is the total not the attorney’s claimed amount of money refunded to the See actually class. v. Van Boeing Gemert, 444 U.S. In the Court (1980). stated that it Boeing, had that a or “recognized who recov- consistently litigant lawyer aers common fund benefit of other than himself persons his or client is entitled a reasonable as a attorney’sfeefrom fund at whole.” Id. 478 several U.S. Court decisions for (citing Supreme this proposition). the settlement unclaimed Boeing, provided any
amounts the total fund would revert back to the defen- Boeing, dant, much the same as the settlement in the instant in which unclaimed will funds escheat to the authorities taxing origi- collected the had nally funds. district court’s Boeing appealed *26 the claimed wanted fees because it only on attorney’s
ruling fees, the thus untouched leaving fund to the of the pay amount filed. all claims had been would revert after unclaimed portion Court, stated the court’s ruling, district Id. The upholding their to of class asserted right the members the whether or not shares, their still for respec- were they responsible their respective tive fee: attorney’s part to fees awarded obliged pay itself cannot be Boeing
Although money its latent claim unclaimed lawyers, against the class each class member’s may equitable fund not defeat judgment of expenses litigation. share obligation Id. 481. at vindicated a has found that when simply Court plaintiff attor- there be no of shifting
a social should grievance,” “general fees, fee under the entitled and attorney merely neys’ However, client. Id. at 479. with the named attorney’s contract that, met, if would that there were certain criteria the Court held fee entire fund: an to a from the entide attorney hand, each member the criteria are satisfied when On the other a and ascer- mathematically of certified class has an undisputed his a recoverable on lump-sum judgment tainable claim to part the defen- Once the class have established representatives behalf. the total amount members of liability damages, dant’s by their the recovery proving can obtain share of simply benefit their individual claims fund. This against judgment the identifiable whom persons devolves with certainty upon the full Although has as members of class. court certified be deter- value of the benefit to each absentee member cannot claim, fee entire until he his awarded against mined presents shift the to each fund will costs absentee judgment litigation to the total that the value of his claim bears exact proportion recovery. Dawson,
Id. 479 Clients Lawyers at (citing generally, Involuntary Harv. L. Rev. 916-922 (1975)). in PublicInterest Litigation, no deviate the U.S. In the instant there is reason to from even this is constitutionally- Court’s though reasoning Supreme than a class action. The created class rather Rule typical an case also have undisputed members in claim the total mathematically-ascertainable part judgment, and can obtain also their share of their individual by simply proof claims fund. The decision the reason- against Boeing explained behind this “total fund” rule as follows: ing
Unless absentees contribute to the payment attorney’s behalves, incurred on their will for they pay the creation nothing of the fund and their bear additional representativesmay costs. The judgment by entered the District Court and affirmed Court of allowed an fee from the Appeals attorney’s [which entire rectifies this member inequity every requiring fund] *27 the classto share fees to the same extent he attorney’s that can share in the recovery.
Id. at 480.1 case, an
In Arkansas this same holds reasoning true. We a have here class made of a individuals who have up share, benefit as shown their ascertainable by and mathematically fund, whether or not assert their to that share of the they right still should for of they the costs the that responsible litigation them this benefit. The gave out in its majority rightly points not opinion member claimed his “[although every refund, class did a counsel obtain refund for each member.” The definable, that the amount of the refund is majority agrees clearly and “a result was obtained in that had the positive not litigation 1 majority’s assertion that “at least other one state has held as we do Contrary in case,” the instant the case cited for that v. Goodrich E.F. 681 A.2d Hutton, proposition, (Del. 1996), did hold not that claimed amounts were the measure of a only recovery. using the Instead, Court, Delaware its standard of review to reverse where Supreme only there is an of discretion, abuse affirmed a trial court’s award of fees based merely attorneys’ on being the claimed amount of a as within the trial court’s discretion. Id. at recovery doing so, however, 1049. In the court noted that the fee amount deducted was attorneys’ the total millioncommon Id. at FN 11. its Further, $3.3 court increased award from fund. percentage amount, from 16% of common fund to 33% claimed up (which fund). $515,000 maximum of In words, was 16% of the common other the amount — — $515,000 majority the same. the instant is stayed although reversing stating trial is our standard review also abuse of discretion, by awarding that the trial court abused its discretion fees as have been by attorneys they always — majority awarded in this state on basis of the total fund. has not Additionally, percentage percentage increased the from 25% the total fund to whatever of the claimed amount would be to obtain the same was fee, as done the Delaware necessary by chancery court. The case cited the instant case. inapposite
occurred, could have continued collecting each government entity from the funds.” An award exacted illegally of the class members’ the correct measure total fund is thus and if they share of their the litigation expenses, responsibility to the dis- of their share escheat choose to let the balance then tricts, that is their prerogative.
Furthermore, the unclaimed there would be no need for terms of authority to “escheat” to the by funds taxing If the recovery statute if were not they recovery. part funds, as the claimed maintained majority, includes only to the taxing authority by then the unclaimed funds would belong believe the escheat. Because I “recovery” spoken right, amount of the in the statute must refer to entire gross illegally- funds, I dissent. exacted must respectfully Corbin, this dissent. J., joins
Hannah, dissenting Justice, concurring part that this case should be I with the concur part. majority Jim remanded; however, I reversed disagree taxpay- dismissed, I that the ers should be disagree improperly paid fees need not be disgorged.
Motion to Dismiss
deficient, and on
to
was
Notice
the 3019
fatally
taxpayers
basis,
v.
not be dismissed. Haberman
these tax
should
payers
Lisle,
600,
cited
(1994),
317 Ark.
In the present
599 order; 1. The class was certified by court order, 2. Pursuant to the class-certification class representatives named; had been 3. The class certain has rights, including: class;
a. The right opt-out b. That class members will bound the action by if they opt-out; Ifc. class members they will not be opt-out represented by and,
the class representatives; d. Class members may opt-out by making written request. This is the notice under Rule 23. It does not meet the required notice requirements exaction. Notice in illegal exaction illegal should include:
1. That the suit is and what it pending alleges; 2. That the established the constitution and who it includes; 3. That a class member may not and will be bound opt-out any judgment; 4. That classmembers wish become may named if parties they
want
have
with
greater input
respect
remedy sought;
5. That class members may wish to become named
parties
lawsuits,
assure there is no collusion or friendly
and to have input
in the amount of
attorney’s
granted;
6. That class members
declare
may
any
tax volun-
alleged illegal
so
tarily
as to remove it
from the illegal-exaction suit.
T&T,
See
v.
Co.,
Martin
generally
supra;
Couey ChryslerPlymouth,
325,
308 Ark.
In the the 3019 class members never received present basis, that notice. On I would the motion to adequate dis- deny with miss to the 3019 respect taxpayers.
Collusion this case are the This real in interest in taxpayers. The parties are a The the as if attorneys party. is taxpayers’ appeal approached case, in this which involves the only granted the event in the case. be most might significant arguably not when the case were considering The refunds great received the amounts involved. The attorneys arguably possible a refund benefit. Each settlement agreement provided greatest $8,629,634.67, was refunded to fees. Ultimately, that amounted The trial court taxpayers. granted $4,650,569, received to a close substantially figure figure taxpayers. million dol- $18.6
The that there was recovery argument an whether the lars is In illusory. simply Here, Worth, taxes is an issue. were voluntarily always supra. what be a the defendants came with might top figure they just up to out. I find to indicate was any have nothing taxpayer might pay There no evidence asked if the taxes were to voluntarily paid. that ever amount $18.6 show that million might represented refunded, it is obvious be refunded. From the amount actually Also, to much of taxes were voluntarily paid. contrary dissent, back fact unclaimed funds escheat argument any does that were not governmental imply they part body the fact unclaimed funds amount recovered. To contrary, million dol- $18.6 would be returned the defendants shows It lar fund was inflated and did not reflect actual recovering. idea not adds was trustworthy. only figure support case rise to It must also be noted an illegal-exaction gives that the lawsuit concern justified may friendly. govern- are Rule 23 tort class action mental defendants typical tort, lose defendants. In the defendants would money. simply exaction, the are the who will real losers illegal taxpayers likely from the suit. The Rule have to make shortfall any up resulting has reason 23 tort class-action defendant greater fight reduce recovery.
ExcessiveFees
fees,
While Mr. Butt intervened to be
on
heard
the issue of
there were
who did not. Mr. Butt is an
many taxpayers
exper-
ienced
who
believed matter of
fees needed
attorney
The
attention.
would not
his level of
average taxpayer
enjoy
but if the notice had been
other
understanding,
adequate,
taxpay-
ers
have
named
as
Then
could
might
sought
parties.
they
have asserted their views on the fees and had a
in what
say
they
have
was a
lawsuit.
might
argued
friendly
alone,
I also must note that
the amount of the fees is
standing
notes,
theAs
this court
troubling.
appellant
Bradshaw
long ago
Rock,
& Helm v. Bank Little
76 Ark.
Contrary issue of the fees majority, disagree moot. is The treats the fees as if were a majority they judgment states, and then As the law cited paid appealed. majority who not and then It party judgment may it. pays pay obvious he or not she why was volun- may judgment appeal. The law on tarily is not paid. payment voluntary judgments in this case. The applicable parties objecting payment did the fees. The were the defendants pay paid by who wanted the matter to The defendants the fees go away. at their and the for the class them at their peril, attorneys accepted Both defendants and the knew issue was peril. attorneys *31 602 be Therefore, the would attorneys pre-
contested. presumably the fees. disgorge pared nevpr were the classmembers notice
Because was inadequate, was some- that the issue of in a to understand position put never knew should be concerned. They about which thing they of the actual of recovery much past that the fees could consume case on this I would reverse the point require taxes. overpaid funds provision proper disgorge pending attorneys and further hearings. notice
Guardian Ad Litem involved in inter In counsel was this experienced fees, is is the issue of which vention on attorneys why on behalf us Because of the involvement counsel before today. been addressed. That the issue of has may of appellees, not, in suits. If as noted Haas be the case in exaction always illegal Bank, a 11 382 Penn. (W.D. 1977), National F.R.D. v. Pittsburgh a and the defendants on agree arises because counsel problem settlement, defendant, a sum is remedy. having agreed fee that come from sum. indifferent to amount may Also, to that of the classmembers adverse interest specifically is left to of their The judge opposition lawyers. provide It would be better to a in our adversarial system. appoint required Int’l, litem in an instance. See Miller v. Mackey ad such guardian Inc., actions, In 23 Fla. Rule 1976). 70 F.R.D. (S.D. is for the trial act as fiduciary more common approach judge a common fund. Gottliebv. F.3d beneficiaries of Barry, Gottlieb, As the Tenth Circuit (10th 1994). Cir. noted by case of the need in some cases. illegal may compelling exaction, fund is remedies and common vary only where greatly be the use of ad litem better analysis, guardian may part at the fact that funds are light public approach, especially issue.
I would reverse and remand the case for disgorgement fees, notice, on further provision adequate hearings fees, and of the other issues noted for consideration above.