Luke Waid v. Richard Snyder ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
IN RE: FLINT WATER CASES.
│
______________________________________________________ │
LUKE WAID, │
Plaintiff, │
> Nos. 22-1185/1197/1605
│
INDIVIDUAL PLAINTIFFS; SETTLEMENT CLASS PLAINTIFFS, │
│
Plaintiffs-Appellees,
│
│
v. │
│
RICHARD DALE SNYDER, et al., │
│
Defendants, │
│
RAYMOND HALL and ASHLEY JANKOWIAK (22-1185); HELEN │
CHAPMAN, DOROTHY CHAPMAN, SHAMIYA CHAPMAN, LASHONDA │
JONES, SHIRLEY GLOVER on behalf of herself and her children, J.S. │
and A.S., TRISHA WALTER, TOMMIE LOWERY, JR. on behalf of │
himself and his children, T.L., I.L., and M.L., LINDA WELCHE, │
REKIYAH WILLIAMS on behalf of herself and her children, M.W., │
O.B., D.W., and D.W., ASHLEY SUBLET on behalf of herself and her │
children, E.W. and E.W., ELIZABETH FRANKLIN on behalf of herself │
and her children, E.W. and E.W., FLORLISA STEBBINS, ALBERT │
HARRIS, SHEILA HARRIS, NADINE ROBERTS on behalf of herself and │
her foster daughter, D.J., and EARL WELCHE (22-1197); NADINE │
ROBERTS on behalf of herself and her foster daughter, D.J. (22- │
1605), │
Objectors-Appellants. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
No. 5:16-cv-10444—Judith E. Levy, District Judge.
Argued: March 14, 2023
Decided and Filed: March 17, 2023
Before: CLAY, McKEAGUE, and STRANCH, Circuit Judges.
Nos. 22-1185/1197/1605 In re Flint Water Cases Page 2
Waid, et al. v. Snyder, et al.
_________________
COUNSEL
ON BRIEF: Adam E. Schulman, M. Frank Bednarz, HAMILTON LINCOLN LAW
INSTITUTE, Washington, D.C., for Appellants in 22-1185. Mark Cuker, CUKER LAW FIRM,
Philadelphia, Pennsylvania, for Appellants in 22-1197 and 22-1605. Hunter J. Shkolnik
NAPOLI SHKOLNIK PLLC, New York, New York, Corey M. Stern, LEVY KONIGSBERG
LLP, New York, New York, for Individual Plaintiffs Appellees. Emmy Levens, COHEN
MILSTEIN SELLERS & TOLL, PLLC, Washington, D.C., for Settlement Class Appellees.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. Following the Flint Water Crisis,1 thousands of cases were
brought by minors, adults, property owners, and business owners against alleged tortfeasors for
the harms they endured as a result of lead-contaminated water. Putative class action lawsuits and
individual lawsuits were consolidated in the United States District Court for the Eastern District
of Michigan. There, the district court appointed Co-Lead Class Counsel and Co-Liaison Counsel
to represent the putative class and individual plaintiffs, respectively. After years of negotiation,
Co-Lead Class Counsel and Co-Liaison Counsel, together with the Settling Defendants, reached
a record-breaking settlement.
In connection with the work they performed in reaching the settlement, Counsel
requested attorneys’ fees and reimbursement for expenses. The court approved the underlying
settlement and awarded Counsel attorneys’ fees. Three Objector-Appellant groups, the Hall
Objectors, the Chapman Objectors, and the Roberts Objector, now appeal that award. Together
they allege that they were entitled to more detailed discovery of Counsel’s billing and costs
records, that the fee award’s common benefit structure constitutes an abuse of discretion, and
that a $500 charge for bone lead scans performed by Co-Liaison Counsel was unreasonable.
1
The facts underlying the Flint Water Crisis have been summarized by this Court in In re Flint Water
Cases, 960 F.3d 303 (6th Cir. 2020).
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Waid, et al. v. Snyder, et al.
We conclude that the Objectors are not entitled to the discovery they seek, that they lack
standing to appeal the common benefit structure of the district court’s attorneys’ fee award, and
that the district court did not otherwise abuse its discretion in awarding Counsel fees and
expenses. Accordingly, we AFFIRM the district court.
I.
A. Factual Background
Following the Flint Water Crisis, scores of lawsuits were filed in, removed to, or
transferred to the United States District Court for the Eastern District of Michigan. There,
putative class action lawsuits and lawsuits brought by thousands of individual plaintiffs were
consolidated in what have since become known as the Flint Water Cases. Upon consolidation,
the district court appointed Theodore Leopold of Cohen Milstein Sellers & Toll PLLC and
Michael Pitt of Pitt McGehee Palmer & Rivers PC as Co-Lead Class Counsel for the putative
class, and Corey Stern of Levy Konigsberg LLP and Hunter Shkolnik of Napoli Shkolnik PLLC
as Co-Liaison Counsel for all individual cases. Among other responsibilities, Co-Lead Class
Counsel and Co-Liaison Counsel were tasked with coordinating and conducting all pretrial
discovery, organizing and attending meetings between counsel, submitting and arguing all
motions to the court, negotiating with Defendants, keeping the court and all Plaintiffs advised of
the progress of the litigation, and “[g]enerally act[ing] fairly, efficiently, and economically in the
interests of all parties and parties’ counsel.” R. 234, PID 8726.
Pursuant to their duties, Co-Lead Class Counsel and Co-Liaison Counsel (collectively
“Plaintiffs’ Counsel”) engaged Defendants in a years-long process of coordination and
negotiation. For the duration of this process, Plaintiffs’ Counsel operated under the direction of
court-appointed Mediators, former Judge Pamela Harwood and retired Senator Carl Levin, as
well as court-appointed Special Master Deborah E. Greenspan. Under the court’s Case
Management Order, Co-Lead Class Counsel and Co-Liaison Counsel were required to submit
monthly time and expense records to the Special Master. Notably, “[o]nly time spent on matters
common to all plaintiffs in the Flint Water Cases (‘Common Benefit Time’) [would] be
considered in determining fees.” R. 507, PID 15829.
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Waid, et al. v. Snyder, et al.
After years of hard-fought and arm’s-length negotiation, Co-Lead Class Counsel, Co-
Liaison Counsel, and the Settling Defendants reached a proposed settlement agreement (the
“Amended Settlement Agreement”). The Settling Defendants included: the State of Michigan
and its individual officials (“State Defendants”); the City of Flint, Flint’s City Emergency
Managers, and several City employees (“Flint Defendants”); McLaren Health Care Corporation,
McLaren Regional Medical Center, and McLaren Flint Hospital (“McLaren Defendants”); and
Rowe Professional Services Company (“Rowe”). The settlement sought to resolve the claims of
tens of thousands of minors, adults, property owners, and business owners who suffered personal
and property damage as a result of the Flint Water Crisis. In the parties’ Amended Settlement
Agreement, State Defendants agreed to pay $600 million, Flint Defendants agreed to pay
$20 million, McLaren Defendants agreed to pay $20 million,2 and Rowe agreed to pay $1.25
million into the FWC Qualified Settlement Fund.3 R. 1394-2, PID 54138.
Under the Amended Settlement Agreement’s terms, the net funds made available in the
FWC Qualified Settlement Fund were further distributed among Sub-Qualified Settlement Funds
for each Settlement Category: Minor Child, Minor Adolescent, Minor Teen, Future Minor,
Adults and Property Damage, Business Economic Loss, and Programmatic Relief.4
Additionally, pursuant to the Amended Settlement Agreement’s “Compensation Grid,” each
claimant was assigned a Settlement Category, and every claimant in each Settlement Category
was entitled to the same monetary award. A claimant’s Settlement Category was predicated on a
variety of factors, including the claimant’s age, the date(s) of the claimant’s exposure to Flint
water, lead levels (as demonstrated by bone or blood lead level testing), cognitive deficits,
legionnaires-related harm or death, residential property ownership, business property damage, or
2
After renegotiation, the parties moved to modify the McClaren Defendants’ settlement amount to
$5 million “in order to retain settlement funding from the McLaren Defendants in lieu of their exercise of their
Walk-Away rights.” R. 1980, PID 68476. The district court granted this stipulation. R. 1993.
3
As defined in the Amended Settlement Agreement, the “FWC Qualified Settlement Fund” is “a fund
established within the meaning of Treas. Reg. § 1.468B-1, . . . that will be established for purposes of Defendants
paying or causing to be deposited the Settlement Amount.” R. 1394-2, PID 54130.
4
The Programmatic Relief Sub-Qualified Settlement Fund was established “to enable the local school
districts and public school academies within the Genesee Intermediate School District to provide special education
services for students who resided in the City of Flint during the Exposure Period and require such services.”
R. 1394-2, PID 54149–50.
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Waid, et al. v. Snyder, et al.
business economic loss. Most important for purposes of this appeal, demonstration of higher
lead levels qualified claimants for larger monetary recoveries.
Under the Compensation Grid, a qualifying blood lead test must have been “taken during
the period of May 16, 2014 through August 31, 2016.” R. 1319-2, Ex. 8 (emphasis added).
A qualifying bone lead test, on the other hand, required use of “an X-Ray fluorescence (XRF)
device optimized to measure bone lead in vivo in humans and to perform measurements off in
vivo bone lead in bones” and “must have been taken between May 16, 2014, and 90 days after
the date of the Preliminary Approval Order,5 except that the end date of 90 days after the date of
the Preliminary Approval Order shall not be applied to Future Minor Claimants, who shall not be
subject to that end date restriction.” Id. (emphasis added). The most common objection to the
Amended Settlement Agreement itself related to the inclusion of this bone lead level testing in
the Compensation Grid, but the district court rejected those objections.
In an effort to develop their own clients’ cases, Co-Liaison Counsel of Napoli Shkolnik
PLLC established a bone lead level testing program for their clients at their offices in Flint,
Michigan. There, bone lead level testing was overseen by Dr. Aaron Specht, Ph.D., and
conducted using a hand-held XRF device manufactured by Thermo Fisher. As the district court
noted in its Final Approval Order, “Co-Liaison Counsel was not obligated under the [Amended
Settlement Agreement] or otherwise to offer bone lead level testing to non-Napoli clients
through the Napoli Program. Despite this, the Napoli Program did offer testing for non-clients
and many obtained tests.”6 R. 2008, PID 69675–76.
On March 8, 2021, prior to the district court’s approval of the underlying settlement
agreement, Plaintiffs’ Counsel also filed a Motion for an Award of Attorneys’ Fees and
Reimbursement of Expenses (“Fee and Expense Motion”). Plaintiffs’ Counsel filed their motion
5
The court’s Order Granting Plaintiffs’ Motion for Preliminary Approval was entered January 21, 2021.
R. 1399.
6
According to the district court, Co-Liaison Counsel made 384 bone lead scan appointments available to
non-clients. Of the 384 available appointments, 306 appointments were scheduled. Of the 306 scheduled
appointments, 197 scans were ultimately completed. Fourteen individuals declined and ninety-five did not show up
for their appointment. R. 2008, PID 69676 (citing R. 1895-2, PID 66293–94).
Nos. 22-1185/1197/1605 In re Flint Water Cases Page 6
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pursuant to Federal Rule of Civil Procedure 54, which states in part: “A claim for attorney’s fees
and related nontaxable expenses must be made by motion.” Fed. R. Civ. P. 54(d)(2). In support
of their motion, Plaintiffs’ Counsel argued:
Plaintiffs’ Counsel have worked on a contingent basis for more than five
years now, without compensation of any kind, to achieve this remarkable result.
Moreover, Plaintiffs’ Counsel have invested and will continue to invest time and
resources into implementing this Settlement (while also continuing to litigate
against Non-Settling Defendants). To compensate Plaintiffs’ Counsel for their
services and the risk they undertook in prosecuting these cases, Plaintiffs request
that the Court approve their proposed framework for attorneys’ fees to be awarded
to Plaintiffs’ Counsel (the “Fee Proposal” or “Proposal”).
The Fee Proposal is designed to provide reasonable and fair compensation
to Plaintiffs’ Counsel and to ensure equitable treatment for all who make claims
under the Settlement. It also provides distinct fees for work performed by Co-
Liaison Counsel and Class Counsel for the benefit of all Plaintiffs (“common
benefit work”), for Class Counsel’s work on behalf of the Settlement Subclasses,
and for non-common benefit work performed by counsel individually retained by
individual Claimants. A significant amount of the work performed by Plaintiffs’
Counsel has benefitted all Plaintiffs in this litigation. Long-standing precedent
recognizes that in common fund cases, counsel are entitled to compensation for
such common benefit work.
R. 1458, PID 57158–59.
A deadline for filing objections to the Amended Settlement Agreement and to Plaintiffs’
Fee and Expense Motion was set for March 29, 2021. Thereafter, the district court held a three-
day fairness hearing beginning July 12, 2021. As relevant to this appeal, the district court heard
argument and objections regarding Plaintiffs’ Fee and Expense Motion on the third day.
During the fairness hearing, Special Master Greenspan provided an oral report on the
work she performed pursuant to the Case Management Order, which set forth the standards and
procedures for the reporting of time and expenses among Plaintiffs’ Counsel. According to
Special Master Greenspan, she began receiving time and expense submissions in August 2018.
During her time as Special Master, she claims to have received more than 88,000 time entries
and 7,800 expense entries. She and her team reviewed this data, identifying and correcting
omissions and inconsistencies, and consolidating the information for the court’s review.
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Notably, she had already provided relevant time-and-expense data to the court in camera in
anticipation of the hearing.
On November 10, 2021, the district court granted final approval of the underlying
settlement. In re Flint Water Cases, 571 F. Supp. 3d 746 (E.D. Mich. Nov. 10, 2021).
Importantly, none of the objectors involved in the instant appeal appealed from this final
approval. In its Final Approval Order, the court deferred ruling on Plaintiffs’ Fee and Expense
Motion. Ultimately, on February 4, 2022, the district court granted Plaintiffs’ Fee and Expense
Motion, with a few modifications that are detailed below.
Specifically, the court awarded Plaintiffs’ Counsel reimbursement for expenses in the
amount of $7,147,802.36. Having “conducted its own review of the underlying data provided by
the Special Master,” the court concluded “that the expenses, as reconciled by the Special Master,
are reasonable and well-documented.” R. 2105, PID 72087. Moreover, there were no objections
to the expense-request portion of Plaintiffs’ Counsel’s Fee and Expense Motion.
The court then granted in part and denied in part Plaintiffs’ Counsel’s attorneys’ fee
request, adopting the basic structure of the fee proposal but making a few modifications. The
court awarded Plaintiffs’ Counsel a Common Benefit Assessment of 6.33% of the total $626.25
million settlement amount. Apart from this 6.33% global Common Benefit Assessment, the
court capped the aggregate amount that may be paid in other fees and common benefit awards at
25%––a reduction from Plaintiffs’ Counsel’s original request of 27%. As to these separate
common benefit fees, the court set the following parameters:
• Fees will be capped at 25% for represented Plaintiffs who retained counsel
before August 20, 2020,7 and capped at 8% for counsel retained after that
date.
• Counsel who assist Minors with claims after August 20, 2020 are entitled
to a fee of 8%.
7
The reasoning for different fees for attorneys hired before and after August 20, 2020, is that “the
settlement was announced publicly in August of 2020. The reduction in the fee amount is appropriate because, once
the settlement was announced, counsel did not have to undertake any litigation work or risk.” R. 2105, PID 72103–
04. The court extended this threshold date from July 16, 2020, the date originally requested by Plaintiffs’ Counsel,
to August 20, 2020, to account for the settlement’s announcement to the public. Id.Nos. 22-1185/1197/1605 In re Flint Water Cases Page 8
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• Class fees will be set at 25% for the class portion of the settlement and at
10% for the Programmatic Relief component of the settlement.
Id. at 72088.
As to Common Benefit Assessments (CBA), the court awarded the following:
• A CBA of 17% of the value of the amount awarded to Claimants who
retained counsel after August 20, 2020;
• A CBA of 17% of the value of the amount awarded to any Minor Claimant
who was assisted by counsel after August 20, 2020; and
• A CBA of 25% of the value of the amount awarded to any unrepresented
Minor Claimant who does not retain their own counsel.
Id. at 72088–89.
As to the portion of attorneys’ fees related only to class recovery, the court awarded Co-
Lead Class Counsel 25% of the value of the claims resolved in the Adult Exposure, Property
Damage, and Business Economic Loss Subclasses, and of the aggregate claims involving a
Minor who retained Class Counsel before August 20, 2020. Id. at 72089. Additionally, the court
awarded Co-Lead Class Counsel 10% of the value of the Programmatic Relief Fund and 8% of
the aggregate value of claims involving a Minor where Class Counsel assisted or was retained by
the Minor after August 20, 2020. Id.
With respect to independently retained counsel, the court awarded the following,
regardless of the amounts set forth in counsel’s retainer agreements:
• 25% of the value of the claims for Claimants that entered into retainer
agreements with [independently retained counsel] before August 20, 2020;
• 8% of the value of the claims for Claimants that entered into retainer
agreements with [independently retained counsel] after August 20, 2020;
and
• 8% of the value of the claims where [independently retained counsel]
“assist[ed] and advocat[ed] for a Minor in submitting a claim, whether
retained or unretained,” if the assistance took place after August 20, 2020.
Nos. 22-1185/1197/1605 In re Flint Water Cases Page 9
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Id. at 72090. The court explained the 8% fee caps for late-retained counsel by stating, “[t]his,
when added together with the 17% [Common Benefit Assessment] value set forth above, reaches
the 25% maximum value.” Id. at 72090 n.24.
Because Plaintiffs’ Counsel’s Fee and Expense Motion contained common benefit and
class-settlement components, the district court was required to determine whether the awards
were reasonable prior to approval. See Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513,
516 (6th Cir. 1993) (mandating that common benefit awards be “reasonable under the
circumstances”); see also Fed. R. Civ. P. 23(h) (“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.”).
Courts employ two methods for calculating attorneys’ fees and for evaluating the
reasonableness of those fees: the percentage-of-the-fund method and the lodestar method. Van
Horn v. Nationwide Prop. and Cas. Ins. Co., 436 F. App’x 496, 498 (6th Cir. 2011). “The
lodestar method better accounts for the amount of work done, while the percentage of the fund
method more accurately reflects the results achieved.” Rawlings, 9 F.3d at 516. Courts have
discretion “to select the more appropriate method for calculating attorney’s fees in light of the
unique characteristics of class actions in general, and the unique circumstances of the actual
cases before them.” Id. And given the respective benefits and drawbacks of the percentage-of-
the-fund and lodestar methods, courts often select one method and use the other as a cross-check.
See Van Horn, 436 F. App’x at 500–01.
In selecting a method, and in evaluating the overall reasonableness of the fee, courts also
rely on the six “Ramey factors.” Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir.
1974). Those factors include:
1) the value of the benefit rendered to the [settling parties], 2) society’s stake in
rewarding attorneys who produce such benefits in order to maintain an incentive
to others, 3) whether the services were undertaken on a contingent fee basis,
4) the value of the services on an hourly basis, 5) the complexity of the litigation,
and 6) the professional skill and standing of counsel involved on both sides.
Ramey, 508 F.2d at 1196.
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Waid, et al. v. Snyder, et al.
Here, the district court employed the percentage-of-the-fund method with a lodestar
cross-check. In selecting these methods and in evaluating the reasonableness of Plaintiffs’ Fee
and Expense Motion, the court provided a detailed analysis of the six Ramey factors. Each
factor, it concluded, weighed in favor of granting Plaintiffs’ Counsel’s fee request.
After approving the underlying settlement and granting in part Plaintiffs’ Fee and
Expense Motion, the district court entered its Final Judgment pursuant to Federal Rule of Civil
Procedure 54(b) on March 3, 2022. Thereafter, on June 22, 2022, the district court issued sua
sponte an “Order Establishing Procedures for Management of Claims Process and Expense
Payment for Unrepresented Claimants and for Claimants With Multiple Counsel,” wherein it
ordered that “payment for any single bone lead test shall not exceed $500.00.” R. 2180, PID
72987.
B. Procedural Background
Raymond Hall and Ashley Jankowiak (the “Hall Objectors”) are members of the
Settlement Class.8 They filed timely objections to the fee portion of Plaintiffs’ Fee and Expense
Motion pursuant to Federal Rule of Civil Procedure 23(h). To advance their objections, the Hall
Objectors also moved for discovery of Plaintiffs’ Counsels’ detailed billing and costs records.
Additionally, the Hall Objectors appeared through counsel at the fairness hearing to voice their
objection. On February 4, 2022, the district court denied the Hall Objectors’ discovery motion in
the same order that granted in part Plaintiffs’ Fee Motion. The Hall Objectors timely appealed.
8
Section 1.72 of the Amended Settlement Agreement defines the Settlement Class as follows:
[A]ll persons or entities who are or could be claiming personal injury, property damage,
business economic loss, unjust enrichment, breach of contract, or seeking any other type of
damage or relief because at any time during the Exposure period they: (1) were an Adult who
owned or lived in a residence that received water from the Flint Water Treatment Plant or were
legally liable for the payment of such water; (2) owned or operated a business including income
earning real property and any other businesses, that received water from the Flint Water Treatment
Plant or were legally liable for the payment for such water; or (3) were an Adult during the
Exposure Period and who ingested or came into contact with water received from the Flint Water
Treatment Plant. Excluded from the Settlement Class are: (1) Defendants; (2) the judicial officers
to whom this case is assigned in the Federal Court, Genesee County Circuit Court, and Court of
Claims, their staff, and the members of their immediate families; (3) all Individual Plaintiffs; and
(4) all persons who timely and validly elect to opt-out of the Settlement Class.
R. 1394-2, PID 54135.
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On appeal, the Hall Objectors are joined by the Chapman Objectors and the Roberts
Objector with respect to discovery issues and the award of fees and costs to Co-Liaison Counsel.
The Chapman Objectors are individual plaintiffs represented by Mark. R. Cuker of the Cuker
Law Firm. They are not members of the Settlement Class. Like the Hall Objectors, the
Chapman Objectors appeared through counsel at the fairness hearing. And like the Hall
Objectors, the Chapman Objectors moved for discovery to advance their objections. The
Chapman Objectors timely appealed from the district court’s denial of that discovery request and
its partial grant of Plaintiffs’ Fee Motion.
The Roberts Objector, also represented by Mr. Cuker, is an individual plaintiff who
objects on her own behalf and on behalf of her foster daughter, D.J. D.J. is the only Objector-
Appellant who received a bone lead scan from the Napoli firm. Accordingly, the Roberts
Objector timely appealed from the district court’s June 22, 2022 Order instating a $500
maximum on the cost of bone lead level scans.
II.
The Hall Objectors raise two primary arguments on appeal: (1) that the district court
erred in denying objectors the opportunity to review Plaintiffs’ Counsel’s detailed billing and
costs records, and (2) that the district court violated the common fund doctrine by imposing
“special assessments” on claimants who did not retain individual counsel, or who did not retain
individual counsel before the designated date. For the following reasons, the Hall Objectors’
arguments fail.
A. Discovery
First, the Hall Objectors argue that the district court violated Federal Rule of Civil
Procedure 23(h) by denying objectors and class members the opportunity to review detailed
billing and costs records from Plaintiffs’ Counsel. A review of these records, they argue, “would
have shown excessive attorneys’ fees.” Hall Br. at 19. Appellees respond by arguing that,
because the Hall Objectors do not challenge the district court’s percentage-of-the-fund approach,
their lodestar-related discovery arguments can be dismissed as moot. On the other hand, if this
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Court does decide to reach the issue, Appellees contend that the district court properly denied the
Hall Objectors’ discovery request.
Standard of Review. “We review a district court’s discovery-related rulings under the
highly deferential abuse-of-discretion standard.” Ondo v. City of Cleveland, 795 F.3d 597, 603
(6th Cir. 2015) (quoting Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014)).
“An abuse of discretion occurs if the district court relies on clearly erroneous findings of fact,
applies the wrong legal standard, misapplies the correct legal standard when reaching a
conclusion, or makes a clear error of judgment.” Louzon v. Ford Motor Co., 718 F.3d 556, 560
(6th Cir. 2013) (quoting Miller v. Countrywide Bank, N.A. (In re Countrywide Fin. Corp. Mortg.
Lending Pracs. Litig.), 708 F.3d 704, 707 (6th Cir. 2013)). Additionally, we “will not reverse a
decision to limit discovery absent a clear showing that the denial of discovery resulted in actual
and substantial prejudice to the complaining litigant.” Pittman v. Experian Info. Sols., Inc., 901
F.3d 619, 642 (6th Cir. 2018) (internal quotation marks and citations omitted). The interpretation
of the Federal Rules of Civil Procedure is reviewed de novo. Jalapeno Prop. Mgmt., LLC v.
Dukas, 265 F.3d 506, 510 (6th Cir. 2001). Likewise, mootness is a jurisdictional question, see
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990), that we review de novo, see United States
v. Gabrion, 517 F.3d 839, 844 (6th Cir. 2008).
Analysis. Because this Court has an independent obligation to examine its own
jurisdiction before proceeding to the merits, see Nikolao v. Lyon, 875 F.3d 310, 315 (6th Cir.
2017), we begin with Appellees’ assertion that the Hall Objectors’ lodestar-related discovery
arguments are moot.
Article III’s case-or-controversy requirement mandates that we hear only “real and
substantial controvers[ies].” See North Carolina v. Rice, 404 U.S. 244, 246 (1971).
Accordingly, we lack jurisdiction to consider a case or issue “that has ‘lost its character as a
present, live controversy’ and thereby becomes moot.” Demis v. Sniezek, 558 F.3d 508, 512 (6th
Cir. 2009) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)). “The test for mootness ‘is whether
the relief sought would, if granted, make a difference in the legal interests of the parties.’”
McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)
Nos. 22-1185/1197/1605 In re Flint Water Cases Page 13
Waid, et al. v. Snyder, et al.
(quoting Crane v. Ind. High Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir. 1992) (citation
omitted)). A case is moot “only when it is impossible for a court to grant ‘any effectual relief
whatever’ to the prevailing party.” Knox v. Serv. Emps. Intern. Union, Local 1000, 567 U.S.
298, 307 (2012) (quoting Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). So long as the parties
maintain “a concrete interest, however small, in the outcome of the litigation, the case is not
moot.” Knox, 567 U.S. at 307–08 (quoting Ellis v. Ry. Clerks, 466 U.S. 435, 442 (1984).
To support the reasonableness of its award, the district court used the percentage-of-the-
fund method and cross-checked its fee determination with the lodestar method. Neither the Hall
Objectors nor the Chapman Objectors challenge on appeal the district court’s chosen
methodology, nor does either objector group challenge the court’s application of the six Ramey
factors. Appellees argue that, because the Hall Objectors do not assert that the district court
erred in applying the percentage-of-the-fund method, and because the lodestar cross-check was
optional, “the lodestar as to this fee award is no longer a live issue.” Class Appellees Br. at 21.
To support their position, Appellees cite to Green v. Nevers, wherein this Court
considered a discovery motion moot when the underlying legal issue had already been
determined by the district court and affirmed on appeal. 196 F.3d 627, 632 (6th Cir. 1999).
Specifically, this Court concluded: “Because the district court could not, on remand, have taken
any action inconsistent with the judgment of the appellate court, granting the appellant’s
discovery request could not have any legal consequences. Therefore, the discovery motion was
moot, and the district court did not err in denying it.” Id. But here, the district court denied the
Hall Objectors’ discovery request in the very same order in which it awarded attorneys’ fees and
expenses. Unlike the underlying issue in Green, the Hall Objectors’ entitlement to a review of
detailed billing and costs records had not been previously decided by the district court or
affirmed by this Court on appeal. Instead, because the district court denied the Hall Objectors’
lodestar-related discovery request in the same order in which it actually conducted its lodestar
analysis, the Hall Objectors acquired a concrete interest in the outcome of that discovery
request—both below and on appeal.
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Indeed, detailed billing and costs records could perhaps have revealed information that
would have altered the Hall Objectors’ objections, or even the district court’s lodestar cross-
check analysis itself. As the Hall Objectors note in their Reply Brief, “[d]istrict courts often rely
on the lodestar crosscheck as a reason to reduce fees.” Hall Br. at 3–4 (citation omitted). And
although the district court was not required to conduct a lodestar cross-check, see Linneman v.
Vita-Mix Corp., 970 F.3d 621, 628 (6th Cir. 2020), it did conduct such a cross-check. And the
court itself acknowledged that its “lodestar should not be dismissed outright,” and that it relied
on both its percentage-of-the-fund analysis and a lodestar cross-check to ensure that its fee award
was reasonable and appropriate. R. 2105, PID 72116–17. Because the Hall Objectors’ discovery
request could have influenced this analysis, it is not “impossible” to grant the Hall Objectors any
effectual relief. See Knox, 567 U.S. at 307. Accordingly, a live controversy remains as to the
Hall Objectors’ discovery argument and we can proceed to the merits.
On the merits, the Hall Objectors first argue that Federal Rule of Civil Procedure 23(h)
affords them a right to review counsel’s detailed billing and costs records. However, Rule 23(h)
makes no mention of class action settlement objectors’ substantive right to discovery, let alone to
the most detailed discovery practicable. Rule 23(h) provides:
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 the 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 magistrate judge, as provided in Rule 54(d)(2)(D).
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Fed. R. Civ. P. 23(h). Although Rule 23(h) clearly affords class members the right to object to
counsel’s fee request, nothing in the Rule’s plain language specifically entitles class claimants to
detailed discovery. Id.Finding no refuge in the explicit text of the Rule, the Hall Objectors cite to a number of
out-of-circuit cases, arguing that a “consensus of circuits” reads Rule 23(h) to “sensibly allow[]
the paying party—class members—to attack the basis of fees and costs.” Hall Br. at 20–21.
Upon review, the cases that the Hall Objectors rely on do not support finding that the Hall
Objectors are entitled to the requested discovery. In Redman v. RadioShack Corporation, for
example, the Seventh Circuit held that a settlement violated Rule 23(h) when “[c]lass counsel did
not file the attorneys’ fee motion until after the deadline set by the court for objections to the
settlement had expired.” 768 F.3d 622, 637 (7th Cir. 2014). The court explained that the
objectors “were handicapped in objecting because the details of class counsel’s hours and
expenses were submitted later, with the fee motion, and so they did not have all the information
they needed to justify their objections.” Id. The court’s concern was with the timing of class
counsel’s time and expense submissions, as well as those submissions’ adequacy of detail and
rationale.
Likewise, in Keil v. Lopez, the Eighth Circuit held that the district court’s scheduling
order violated Rule 23(h) “[b]ecause the deadline for submitting objections had passed by the
time class counsel submitted their fee motion,” so “class members were denied an ‘adequate
opportunity to review and prepare objections to class counsel’s completed fee motion,’” and
could make only “generalized” arguments in objection. 862 F.3d 685, 705 (8th Cir. 2017)
(quoting In re Mercury Interactive Secs. Litig., 618 F.3d 988, 994–95 (9th Cir. 2010)). And in
Johnson v. NPAS Sols., LLC, the Eleventh Circuit held that the district court violated Rule 23(h)
when it “set a schedule that required class members to file any objection to the settlement—
including any objection pertaining to attorneys’ fees—more than two weeks before class counsel
had filed their fee petition.” 975 F.3d 1244, 1248 (11th Cir. 2020). At the time the class
members’ objections were due, they had little information about class counsel’s hours and
expenses beyond the class notice. Id. at 1252. Finally, in Mercury Interactive itself—the very
case the Hall Objectors argue forms the basis for the purported “consensus of circuits”—
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the Ninth Circuit addressed only the timing of class counsel’s time and expense disclosure.
618 F.3d at 993–95. Here, Plaintiffs’ counsel’s fee and expense motion included thirty exhibits
of declarations detailing counsel’s hours and expenses, providing adequate notice and
information for the Hall Objectors to submit timely objections and litigate the merits of the
award.
In addition to Rule 23(h), the Hall Objectors attempt to derive a right to detailed
discovery from broader due process principles. This attempt, however, is equally unavailing. In
Yamada v. Nobel Biocare Holding AG, for example, defendants appealed a district court’s
attorneys’ fee award when the court relied on “an ex parte, in camera review of timesheets.”
825 F.3d 536, 539 (9th Cir. 2016). The Ninth Circuit held that “the Due Process Clause requires
that opposing counsel have access to the timesheets relied on to support the fee order.” Id. at
545. But Yamada involved defendants, who would ultimately pay class counsel’s fees, see
Chambers v. Whirlpool Corp., 980 F.3d 645, 672 (9th Cir. 2020), and—again—resolved a
situation where the objecting party had been “denied a meaningful opportunity to review and to
litigate the merits of the award,” Yamada, 825 F.3d at 545 n.7.
The Hall Objectors argue that these due process protections “should extend to class
members and claimants being asked to foot the bill.” Hall Br. at 21–22. In their words, “Flint
residents deserve no fewer rights than a kitchen appliance company.” Id. at 22. But again, the
Hall Objectors fail to offer any legal support for the idea that due process affords them the right
to review the detailed billing and costs records they seek; they were furnished enough
information to have a sufficient basis on which to object, both in writing and at the fairness
hearing.
Setting Rule 23(h) and due process aside, the Hall Objectors also assert that the district
court’s in camera review of Plaintiffs’ Counsel’s time and expense records violated broader
principles of openness and transparency. To support this argument, the Hall Objectors cite to
Reynolds v. Beneficial National Bank, wherein the Seventh Circuit held that a district court
abused its discretion when it relied on in camera review. 288 F.3d 277, 284–86 (7th Cir. 2002).
But there, the court below had encouraged attorneys to submit their fee applications—not merely
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their time entries—in camera, “lest the paucity of the time they had devoted to the case . . . be
used as ammunition by objectors to the adequacy of the representation of the class.” Id. at 284.
Because the attorneys’ fee applications were not within the appellate record, the Seventh Circuit
had no knowledge of the total number of hours counsel devoted to the litigation. Id. Here, by
contrast, tens of thousands of time entries were submitted to the Special Master, and hundreds of
hours of work were “expended scrutinizing, reconciling, reviewing, and re-reviewing this data.”
R. 2105, PID 72141. Reynolds is neither binding nor persuasive here.
The Hall Objectors’ arguments with respect to prejudice fare no better. Their assertions
that billing and costs records would have shown excessive billing or revealed the inclusion of
time not performed for the common benefit are entirely speculative, and we cannot say that the
district court abused its discretion in concluding otherwise.
On the merits, the Hall Objectors fail to demonstrate that the district court abused its
discretion in denying their motion for discovery. Indeed, the Hall Objectors fail to point to a
single authoritative source that affords them a substantive right to discovery, let alone the
detailed discovery they seek. Accordingly, the district court did not abuse its discretion in
denying the Hall Objectors’ motion for discovery as to Plaintiffs’ Counsel’s detailed billing and
costs records.
B. Common Benefit Assessments
Next, the Hall Objectors argue that the district court’s fee and expense award violates the
common fund doctrine by charging certain claimants “special assessments.” Hall Br. at 35.
Appellees, in turn, argue that the Hall Objectors lack standing to challenge the settlement’s
common benefit provisions “because a favorable ruling would not enhance their recovery under
the settlement.” Class Appellees Br. at 14. If this Court does reach the issue, Appellees further
contend that the district court’s acceptance of Common Benefit Assessments was reasonable
under the circumstances.
Standard of Review. We review a district court’s award of attorneys’ fees and costs for
an abuse of discretion. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008).
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“Substantial deference ‘is appropriate in view of the district court’s superior understanding of the
litigation and the desirability of avoiding frequent appellate review of what essentially are factual
matters.’” Hometown Folks, LLC v. S & B Wilson, Inc., 643 F.3d 520, 533 (6th Cir. 2011)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). The district court’s award of
attorneys’ fees in common fund cases need only be “reasonable under the circumstances.”
Rawlings, 9 F.3d at 516.
Analysis. The district court’s Fee Order approved a common benefit award to Plaintiffs’
Counsel in the amount of $39,641,625, or 6.33% of the total settlement amount. R. 2105, PID
72142. In addition to this “global” Common Benefit Assessment, the court awarded Co-Lead
Class Counsel 25% of the value of claims resolved through the Adult Exposure, Property
Damage, and Business Economic Loss Subclasses. With respect to Claimants like the Hall
Objectors who retained counsel after August 20, 2020, the court awarded Co-Lead Class Counsel
a lesser Common Benefit Assessment of 17% of the value of their claims. Independently retained
counsel retained after August 20, 2020, was awarded 8% of the value of those claims.
Importantly, the aggregate amount that may be paid for fees and Common Benefit Assessments,
apart from the 6.33% global Common Benefit Assessment, is 25%. Id. at 72087–88. In other
words, both unrepresented and independently represented class claimants pay a total of 25% of
the value of their claims, either in the form of fees or fees plus common benefit awards. This,
combined with the 6.33% global Common Benefit Assessment, amounts to a maximum of
31.33% of the value of all claimants’ recoveries.
The Hall Objectors do not appear to take issue with the Fee Order’s 6.33% global
Common Benefit Assessment. Instead, the Hall Objectors challenge what they call “special
assessments”—the Common Benefit Assessments imposed on claimants who either did not
retain counsel or retained counsel after August 20, 2020.
Before we can proceed to the merits, we must first determine whether we have
jurisdiction to hear this claim. See JPMorgan Chase Bank, N.A. v. Winget, 920 F.3d 1103, 1105
(6th Cir. 2019). Appellees argue that we lack jurisdiction because the Hall Objectors have
appealed from the district court’s Fee Order rather than the underlying settlement’s Final
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Approval. Appellees cite to Devlin v. Scardelletti to argue that, because the Hall Objectors have
not appealed from the final approval of the settlement, this Court cannot review the settlement’s
allocation of funds between Subclasses. 536 U.S. 1, 14 (2002). But Devlin addressed only
whether an unnamed class member who did not formally intervene in the action “should be
considered a ‘party’ for the purposes of appealing the approval of the settlement.” Id. at 6. And
the Supreme Court held that they should. Id. Devlin did not address the separate question
presented here: whether objectors can appeal from an award of attorneys’ fees rather than from
the settlement’s final approval.
In Bunidich v. Becton Dickinson and Co., the Supreme Court held that “an unresolved
issue of attorney’s fees for the litigation in question does not prevent judgment on the merits
from being final.” 486 U.S. 196, 202 (1988). In other words, “a petition for attorney’s fees in
equity is ‘an independent proceeding supplemental to the original proceeding and not a request
for a modification of the original decree.’” Id. at 200 (quoting Sprague v. Ticonic Nat’l Bank,
307 U.S. 161, 170 (1939)). Accordingly, when the district court awards attorneys’ fees after it
decides the merits of the case, and when the district court’s fee order “resolves all attorneys’ fees
in a single, final order[,] completing the post-judgment proceedings,” we have independent
jurisdiction over an appeal from that final fee award. JPMorgan Chase, 920 F.3d at 1106 (citing
Budinich, 486 U.S. at 202). Here, the district court awarded attorneys’ fees after its final
approval of the underlying settlement, and it did so in a single order that terminated all post-
judgment proceedings. On that basis, therefore, we have jurisdiction over the Hall Objector’s
timely appeal of the district court’s Fee Order.
Standing, however, presents a separate jurisdictional challenge that the Hall Objectors
cannot overcome. In order for this Court to exercise jurisdiction over a matter, “the party
seeking relief must have standing to sue.” Kardules v. City of Columbus, 95 F.3d 1335, 1346
(6th Cir. 1996). Constitutional standing requires the following:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be fairly traceable to the challenged action of the defendant, and not the result of
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the independent action of some third party not before the court. Third, it must be
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and citations
omitted).
Appellees’ argument is that the Hall Objectors lack standing to appeal aspects of the
settlement that do not adversely affect them. Appellees assert that the Hall Objectors lack
standing to appeal Common Benefit Assessments associated with unrepresented and late-
represented Minors, because any CBA change associated with Minors would have no effect on
the funds available to class members like the Hall Objectors, and that they lack standing to
appeal the Common Benefit Assessments applicable to their claims, because they would be no
better off were they to succeed in their challenge. We agree.
As outlined above, the Fee Order’s Common Benefit Assessment provisions award Co-
Lead Class Counsel 25% of the value of all class claims resolved through the Adult Exposure,
Property Damage, and Business Economic Loss Subclasses. The Hall Objectors do not
challenge this award. Accordingly, without any separate or additional Common Benefit
Assessments, the Hall Objectors would owe Co-Lead Class Counsel 25% of the value of their
claims. Because the Hall Objectors are class claimants who retained independent counsel after
August 20, 2020, they are instead responsible for a 17% Common Benefit Assessment to
Plaintiffs’ Counsel, along with 8% of the value of their claims as fees to their independently
retained counsel. This amounts to 25% of the value of their claims. As a matter of simple math,
the Hall Objectors would pay 25% in common benefit awards and fees either way—with or
without the “special assessments” with which they take issue.
This Court has held that “[a]n objector who does not have an injury-in-fact lacks standing
to appeal an aspect of a class-action settlement that does not adversely affect his own interests.”
In re Packaged Ice Antitrust Litig., No. 17-2137, 2018 WL 4520931, at *5 (6th Cir. 2018) (citing
Lujan, 504 U.S. at 560). No part of the Minors’ settlement allocation includes a class
component, so the Hall Objectors would not be affected by any CBA change associated with
Minors, because the Hall Objectors are only eligible to make claims in the Adult Exposure,
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Property, and Business Economic Loss categories under the Settlement’s terms. And, because
the Hall Objectors would fare no better with or without the Common Benefit Assessments
applicable to their claims, they fail to demonstrate that they have suffered an injury in fact.
Accordingly, the Hall Objectors lack standing to appeal the Common Benefit Assessments
imposed upon class claimants who retained counsel after August 20, 2020.
Furthermore, even if the Hall Objectors did have standing to appeal the Fee Order’s
Common Benefit Assessments, we find that the district court did not abuse its discretion in
awarding those common benefit fees.
In its Fee Order, the district court concluded that the structure of Plaintiffs’ Counsel’s fee
proposal was “consistent with the fair and equitable design of the underlying settlement.” R.
2105, PID 72048. After evaluating each Ramey factor, the district court approved Plaintiffs’
Counsel’s Common Benefit Assessment provisions and fee caps for individually retained
counsel, at slightly reduced percentage amounts. Yet, nowhere in the Hall Objectors’ Opening
or Reply Briefs do they contend that the district court abused its discretion in applying the Ramey
factors.
Instead, the Hall Objectors point to nonbinding authority from the Third Circuit to
suggest that “assessing common benefit fees unevenly against the beneficiaries of the global
settlement fund” violates the common fund doctrine. Hall Br. at 37. Specifically, they cite to
Lindy Bros. Builders Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp.,
wherein the Third Circuit held that the district court abused its discretion by requiring
unrepresented claimants to pay 81.6% of the total attorneys’ fees when their share of the fund
amounted to less than 30%. 540 F.2d 102, 119–20 (3d Cir. 1976). But there, different claimants
were ordered to pay widely varying percentages in attorneys’ fees. Here, on the other hand,
every claimant pays the same total fee percentage, regardless of whether they retained counsel or
retained counsel after August 20, 2020.
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Furthermore, the Lindy court found that the record below was “devoid of the type of
evidence necessary” to support the fee award. Id. at 120. In fact, “[t]here were no affidavits, no
stipulations, no testimony adduced at a hearing to substantiate [the district court’s] evaluation.”
Id. Here, however, the district court received numerous affidavits from Plaintiffs’ Counsel,
allowed written objections to be submitted by both class members and individual plaintiffs,
facilitated a fairness hearing during which those objections were heard, relied upon a Special
Master who devoted hundreds of hours to validating Plaintiffs’ Counsel’s time and expense
reports, and offered detailed explanation of its Ramey analysis in its ultimate Fee Order. Not
only is Lindy nonbinding authority, it is entirely unpersuasive with respect to the facts of this
case.
In sum, the Hall Objectors lack standing to challenge the Common Benefit Assessment
provisions of the district court’s Fee Order. Were they to have standing to appeal the issue, they
fail to demonstrate that the district court abused its discretion in awarding Plaintiffs’ Counsel
Common Benefit Assessments, particularly when those assessments achieve parity among
settlement beneficiaries and are reasonable under the circumstances.
III.
The Chapman and Roberts Objectors raise three primary issues on appeal: (1) Co-Liaison
Counsel devalued certain claimants’ recoveries and are therefore not entitled to receive common
benefit fees from those claimants; (2) the district court erred in denying objectors’ discovery
request with respect to Co-Liaison Counsel’s bone scan program; and (3) the district court erred
in ordering payment of $500 for bone scans.
A. Common Benefit Fees
The Chapman Objectors’ first argument on appeal is that the district court erred in
requiring certain claimants to pay common benefit fees to Co-Liaison Counsel when Co-Liaison
Counsel allegedly did not work for the common benefit, but instead worked to decrease the
recoveries of those claimants. Chapman Br. at 25–26. According to the Chapman Objectors,
Co-Liaison Counsel “achieved larger recoveries for their own clients at the cost of reduced
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recoveries for other claimants” by “secretly monopolizing bone lead testing in Flint, [and] then
negotiating a settlement which paid large premiums to claimants with bone lead tests.” Id. at 24–
25. Appellees, in turn, argue that the Chapman Objectors and their counsel lack standing to
pursue this appeal because they “are not aggrieved by the district court’s rulings on attorneys’
fees.” Liaison Appellees Br. at 16.
Standard of Review. As articulated above, we review a lower court’s attorneys’ fee
award for an abuse of discretion. Imwalle, 515 F.3d at 551. An attorneys’ fee award needs only
be “reasonable under the circumstances.” Rawlings, 9 F.3d at 516.
Analysis. Because “[s]tanding is a jurisdictional requirement and we are under a
continuing obligation to verify our jurisdiction over a particular case,” we address the Chapman
Objectors’ standing to appeal this issue first. In re Troutman Enterprises, Inc. (Harker v.
Troutman), 286 F.3d 359, 364 (6th Cir. 2002). The Chapman Objectors are individual plaintiffs
represented by Mark Cuker, with whom they contracted for a 33.33% contingency fee. See R.
1906, PID 67046 (At the fairness hearing, Mr. Cuker stated, “they want a common benefit fee of
6.33 percent on a 33 and a third percent fee, which is my contract as is most.”). The Fee Order,
however, caps attorneys’ fees at 31.33% (including a combination of fees owed to independently
retained counsel, common benefit fees owed to Plaintiffs’ Counsel, and the global Common
Benefit Assessment). Appellees argue that the Chapman Objectors are better off under the
settlement than they would be pursuing their cases independently. We agree. Pursuant to the
district court’s Fee Order, the Chapman Objectors owe 31.33% of the value of their claims in
attorneys’ fees—less than the 33.33% they would have otherwise owed Mr. Cuker.
Additionally, because the Chapman Objectors are individual plaintiffs, they must
voluntarily register for the settlement before they are eligible to receive settlement funds.9 If the
9
The Amended Settlement Agreement states in relevant part:
3.4. Each person or entity seeking to participate in the Settlement Program must . . . both
register and provide required information regarding their claims.
3.6. Each Plaintiff that is eligible may register to become a Claimant and to receive a
Monetary Award from the FWC Qualified Settlement Fund.
3.8. In order to participate in the Settlement Program, persons and entities must submit
the Registration Form . . . .
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Chapman Objectors preferred the terms of their contingency fee agreements with Mr. Cuker,
they were free to litigate their individual claims. They needed not join the settlement at all.
Because the Chapman Objectors are not aggrieved by the Fee Order’s common benefit structure,
they lack standing to appeal the Order’s Common Benefit Assessments.
To avoid this reality, Mr. Cuker claims he will pass on any reduction in Liaison
Counsel’s common benefit fees to his clients: “Chapman Appellants’ counsel hereby publicly
and unequivocally pledges that he will pass through any reduction in Liaison Counsel’s common
benefit fee to the Chapman Appellants and similarly situated clients themselves, thereby
increasing their net recoveries.” Chapman Reply Br. at 2. But the Supreme Court has long held
that parties cannot “manufacture standing” in this way. See Clapper v. Amnesty Int’l USA,
568 U.S. 398, 402 (2013). Mr. Cuker cannot avoid the jurisdictional constraints of standing by
purporting to pass on any potential financial gains to his clients.
Finally, in a last-ditch effort to establish standing, Mr. Cuker argues that this Court has
jurisdiction to hear this appeal pursuant to Federal Rule of Appellate Procedure 3(c). That rule
provides, in relevant part:
An appeal must not be dismissed for informality of form or title of the notice of
appeal, for failure to name a party whose intent to appeal is otherwise clear from
the notice, or for failure to properly designate the judgment if the notice of appeal
was filed after entry of the judgment and designates an order that merged into that
judgment.
Fed. R. App. P. 3(c)(7). To support this argument, Mr. Cuker relies on Dixon v. Clem, 492 F.3d
665, 677 (6th Cir. 2007). There, this Court determined that pursuant to Rule 3(c)(7), we “should
not dismiss the appeal of a party whose intent to appeal is made ‘objectively clear’ by the notice
3.12. Any person or entity who does not submit a proper, complete, and fully executed
Registration Form within sixty (60) days from the date the Federal Court signs the Preliminary
Approval Orders will be ineligible to participate in the Settlement Program and will not receive a
Monetary Award. Any Individual Plaintiff or Claimant that participates in the Settlement Program
and all Settlement Class Members (excluding opt-outs from the Settlement Class) will be
considered a Releasor for purposes of this Settlement Agreement and will be subject to Article
XVI—Releases and Covenants Not to Sue. This Paragraph shall not apply to Future Minor
Claimants.
R. 1394-2, PID 54140–41.
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of appeal.” Id. According to Mr. Cuker, “[i]f Liaison Counsel’s claims are taken at face value,
and Chapman Appellants themselves have no interest in the award of fees to Liaison Counsel, it
is ‘objectively clear’ that [Mr. Cuker] is appealing.” Chapman Reply Br. at 7. It is not, however,
“objectively clear” that Mr. Cuker intended to appeal. The Chapman Objectors’ Notice of
Appeal lists each Objector-Appellant by name. Mr. Cuker appears nowhere on that list.
Moreover, Mr. Cuker devotes an entire section (more than five pages) of his Reply Brief to
arguing that his clients have standing to appeal. Although Mr. Cuker is undoubtedly aggrieved
by the district court’s Fee Order (i.e., his total fees are reduced as a result of the Order’s cap on
fees owed to independently retained counsel), he did not file a Notice of Appeal in his own
name. As the Supreme Court held in Torres v. Oakland Scavenger Co., “[t]he failure to name a
party in a notice of appeal is more than excusable ‘informality’; it constitutes a failure of that
party to appeal.” 487 U.S. 312, 314 (1988).
In sum, because the Chapman Objectors are not aggrieved by the district court’s Fee
Order, and because Mr. Cuker has failed to appeal in his own name, neither the Chapman
Objectors nor their counsel have standing to appeal the Fee Order’s common benefit fee structure
with respect to Co-Liaison Counsel.
B. Discovery
The Chapman Objectors’ second argument on appeal is that the lower court erred in
denying their request for discovery. In response, Appellees argue that the Chapman Objectors
have forfeited this issue by failing to raise it below. Alternatively, if this Court does reach the
issue, Appellees argue that the denial was not an abuse of discretion.
Standard of Review. As stated above with respect to the Hall Objectors’ request for
discovery, a district court’s denial of a discovery motion is reviewed for an abuse of discretion.
Louzon, 718 F.3d at 560. A district court’s interpretation and application of the Federal Rules of
Civil Procedure, however, is reviewed de novo. Jalapeno, 265 F.3d at 510.
Analysis. Because “issues not presented to the district court but raised for the first time
on appeal are not properly before [this Court],” Foster v. Barilow, 6 F.3d 405, 407 (6th Cir.
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1993) (citation omitted), we begin with Appellees’ contention that the Chapman Objectors have
forfeited their discovery argument.
On April 30, 2021, the Chapman Objectors filed a Motion to Review and Respond to
Hourly Billing and Costs; and for Discovery of Bone Scan Information. In that motion, the
Chapman Objectors argued:
Liaison Counsel Napoli Shkolnik and Levy Konigsberg’s fee motion . . .
seeks tens of millions of dollars for “common benefit work” based in part on the
premise that the work they did in making bone scans a critical element of the
settlement was actually for the “common benefit.” In fact, the underlying
settlement which they have proffered does not provide a benefit common to all
claimants but serves to [sic] Liaison Counsel’s pockets at the latter’s expense by
paying uniquely large sums to people who underwent bone scans, almost all of
whom are their own clients. Because the sums to be paid are not fixed per types
of claim, but vary according to the ratio of claimants and types of claims, every
extra dollar paid to a Liaison Counsel client who qualifies for more money
because of a bone scan is a dollar less available to other individual claimants. . . .
In order to scrutinize whether the propose[d] settlement unfairly benefits
the clients of Liaison Counsel at the expense of others, and whether Liaison
Counsel are entitled to “common benefit fees” when their work primarily
benefitted their own clients, and not others, this Court should require disclosure of
information which shows whether and to what extent bone scans uniquely benefit
the clients of Liaison Counsel, whether they were performed legally, what they
cost, and whether they are safe and reliable.
R. 1722, PID 62551–52.
The Chapman Objectors accordingly requested that the lower court order discovery of the
following:
• The number of bone scans conducted on clients of liaison counsel and the
number of scans performed on other claimants. This information should
be readily available given that non-liaison counsel clients are only scanned
on Sundays, and only since Feb. 21, 2021;
• When was the first scan performed on non-bellwether plaintiffs, how
many scans were performed by November 16, 2020, and then how many
since that date;
• Detailed time and expense billing of Liaison Counsel Plaintiffs to disclose
hourly billing and costs, which are an essential part of their Fee Motion
(ECF No. 1458);
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• The protocols, standard operating procedures and calibrations they claim
to use at their private bone scanning lab[;]
• Any fee sharing agreements between Liaison Counsel Napoli Shkolnik
and Levy Konisberg[;]
• A description of what transpired during the 26 minutes off the record at
the March 1, 2021 ex parte conference, which led Class Counsel to
withdraw their “Motion for Immediate Suspension of the Use of Portable
XRF Bone Scanning Test” ECF No. 1446[.]
R. 1722, PID 62547–48.
The district court denied the Chapman Objectors’ discovery request. On appeal, the
Chapman Objectors ask us to review that denial. They argue:
To determine whether Liaison Counsel’s work was detrimental to most claimants
because their bone scan monopoly increased their own clients’ recoveries at other
claimants’ expense, the lower court should have required Liaison Counsel to
disclose information showing:
• Whether and to what extent their clients uniquely benefitted from bone
scans;
• How these enhanced recoveries for Liaison Counsel’s client[s] devalued
the claims of the remaining claimants;
• How much in additional fees Liaison Counsel would receive as a result;
and
• Whether adding a common benefit fee on top of their enhanced contingent
fee would result in an unreasonable total fee award.
Chapman Br. at 34–35.
Appellees contend that the Chapman Objectors have forfeited this issue. They claim that,
although the Chapman Objectors did urge the district court to offer objectors an opportunity to
review detailed time and expense records, the Chapman Objectors have “[o]nly now, on
appeal . . . beefed up their presentation in support of their argument.” Liaison Appellees Br. at
23. To support their argument, Appellees cite to In re Anheuser-Busch Beer Labeling
Marketing., wherein this Court held that, in order to avoid forfeiture, “a litigant must give the
court and opposing parties notice of his position, along with some minimal level of
argumentation in support of that position.” 644 F. App’x 515, 527 (6th Cir. 2016) (internal
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quotation marks and citation omitted). According to Appellees, the Chapman Objectors have
failed to meet these requirements. We disagree.
The Chapman Objectors’ discovery motion did “give the court and opposing parties
notice of [their] position, along with some minimal level of argumentation in support of that
position.” Id. By detailing their position in a twenty-four-page discovery motion, and by then
appealing the district court’s denial along sufficiently similar lines, the Chapman Objectors have
satisfied the two purposes of this Court’s forfeiture rules: (1) the district court was the first to
consider the issue, and (2) there is no unfair surprise to the litigants. See Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 552 (6th Cir. 2008).
Having determined that the Chapman Objectors preserved this argument for appeal, we
turn to the merits. On the merits, we conclude that the district court’s denial of the Chapman
Objectors’ discovery motion was not an abuse of discretion.
The Chapman Objectors raise many of the same arguments that the Hall Objectors raise
with respect to their purported right to detailed discovery. Indeed, the district court addressed
these motions in tandem. However, the Chapman Objectors have an even weaker claim to
discovery than the Hall Objectors, because they are individual plaintiffs rather than class
members. Although the district court applied Federal Rule of Civil Procedure 23’s
“reasonableness” standards in its evaluation of Plaintiffs’ Counsel’s Fee and Expense Motion,
the Rule itself applies only to class settlements. Therefore, any rights afforded by Rule 23 do not
apply to the Chapman Objectors, individual litigants who must voluntarily and affirmatively opt
into the settlement. Furthermore, even if Rule 23 did apply to the Chapman Objectors, we have
already concluded that the Rule affords no substantive right to the detailed discovery they seek.
The Chapman Objectors’ due process arguments also fail. Citing a case from the District
of Kansas, the Chapman Objectors argue that settlement objectors have a “due process right to
present their challenge in a meaningful way.” Chapman Br. at 37 (quoting Hershey v.
ExxonMobil Oil Corp., No. 07-1300-JTM, 2012 WL 4758040, at *1 (D. Kan. Oct. 5, 2012)).
This, they argue, required discovery into the impact of Liaison Counsel’s alleged “bone scan
monopoly.” Chapman Br. at 37. Not so. As individual litigants rather than settlement class
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members, the Chapman Objectors possess no inherent right to object. Yet, the district court still
afforded the Chapman Objectors an opportunity to file written objections and to appear at the
fairness hearing. And the district court responded to the Chapman Objectors’ discovery request
in its Fee Order. The Chapman Objectors therefore had an opportunity to present their challenge
in a meaningful way.
The Chapman Objectors cite the same cases as the Hall Objectors to argue that a
“consensus of the circuits” reads Rule 23(h) to allow for detailed discovery of counsel’s billing
and costs. See Chapman Br. at 39 (citing Mercury Interactive, 618 F.3d at 995; Redman,
768 F.3d at 636; Keil, 862 F.3d at 705; Johnson, 975 F.3d at 1252). For the same reasons
articulated above, those cases do not stand for the proposition that the Objectors are entitled to
the discovery requested. They merely require that class members have an opportunity to review
counsel’s fee motions before the deadline for objections. And regardless, Rule 23 does not apply
to the Chapman Objectors.
Having cited no authority to support their argument that they are entitled to discovery of
Co-Liaison Counsel’s billing and costs, or Co-Liaison Counsel’s bone scan program, the
Chapman Objectors have failed to demonstrate that the district court’s denial of their discovery
motion constituted an abuse of discretion.
C. $500 Bone Scan Charge
The Chapman Objectors’ final argument on appeal is that the district court erred in
ordering payment of $500 for bone scans. Specifically, the Chapman Objectors argue that the
district court violated “fundamental principles of due process and fairness” by imposing a $500
charge for bone scans without prior notice or hearing.
Appellees, in turn, argue that Nadine Roberts, whose foster daughter is the only objector
to have received a bone scan from Co-Liaison Counsel, lacks standing to appeal the district
court’s order because she agreed to pay $500 for the scan and is therefore not aggrieved.
Alternatively, if this Court reaches the merits of the issue, Appellees argue that the $500 charge
was reasonable.
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Standard of Review. As an aspect of the lower court’s attorneys’ fee and expense award,
the Bone and Expense Order is reviewed for an abuse of discretion. Imwalle, 515 F.3d at 551.
Analysis. According to Nadine Roberts’ written objections to the underlying settlement,
Roberts accompanied her foster daughter, D.J., to Napoli Shkolnik’s Flint offices for a bone lead
scan on March 7, 2021. In this same written objection, Roberts acknowledges that she was told
“[her] lawyer would deduct $500 for the cost of the test out of [D.J.’s] recovery.” R. 1471, PID
57706. Roberts was thus made aware of the fact that a charge for the bone scan could amount to
as much as $500.
In its June 22, 2022 Bone Scan Expense Order, the district court set a $500 ceiling for the
cost of a bone lead scan:
To the extent that there are individual registrants who have retained more than
one firm . . . and such individual registrants obtained bone scans from the facility
operated by the Napoli firm, the Napoli firm will assure that the bone lead test
result is submitted to the claims administrator regardless of which firm is
undertaking to submit the claims materials. The Napoli firm may obtain payment
for such bone lead tests as outlined above: if that individual or law firm has not
previously paid for the bone lead test report, then the claims administrator shall
issue payment for such bone lead test as instructed by the Napoli firm. Such
payment shall be debited from the compensation payment otherwise due to the
claimant. If the dually represented individual does not qualify for compensation
from the settlement, the law firms retained by the individual shall each bear an
equal portion of the costs of the bone scan report which cost shall not exceed
$500.00.”
R. 2180, PID 72988.
Because Roberts was already aware of the $500 charge, she cannot claim to have been
aggrieved by the $500 ceiling set by the district court. Accordingly, Roberts lacks standing to
appeal the district court’s Bone Scan Expense Order.
Furthermore, even if Roberts did have standing to appeal the Order, she has failed to
appeal the district court’s Final Approval Order, wherein the court concluded that $500 was a
reasonable charge:
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Five hundred dollars is not an unreasonable amount of money for individuals
represented by counsel other than Co-Liaison Counsel to pay for obtaining a bone
lead level test trough the Napoli Program. Napoli Shkolnik undertook the start-up
work, including paying the initial costs for the program and obtaining the
necessary equipment. The firm employed staff including skilled nursing staff and
an office manager. It rented office space in Flint, paid for cleaning services, and,
significantly, it paid the fees and costs for Dr. Specht to obtain the bone lead level
testing device(s) used at the facility to train individuals in how to conduct the
tests, and interpret the test results. . . . Accordingly, as stated at the July 12, 2021
hearing, from the Court’s perspective, $500 per test is not prohibitive and is not a
reason to reject the settlement.
R. 2008, PID 69681–82. Roberts has not, and cannot, demonstrate that the district court abused
its discretion in making that determination.
IV.
For the foregoing reasons, we AFFIRM.