Petition for Writ of Certiorari — Eric Alan Isaacson, Petitioner v. National Veterans Legal Services Program, et al.

Supreme Court briefSep 3, 2026

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No. 26-____

In the

Supreme Court of the United States

ERIC ALAN ISAACSON, PETITIONER,

vs.

NATIONAL VETERANS LEGAL SERVICES PROGRAM,

NATIONAL CONSUMER LAW CENTER, ALLIANCE FOR

JUSTICE, UNITED STATES OF AMERICA, RESPONDENTS

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

ERIC ALAN ISAACSON

Counsel of Record

LAW OFFICE OF

ERIC ALAN ISAACSON

6580 Avenida Mirola

La Jolla, CA 92037-6231

Telephone: (858) 263-9581

ericalanisaacson@icloud.com

Petitioner

QUESTION PRESENTED

“Since the decisions in Trustees v. Greenough, 105

U.S. 527 (1882), and Central Railroad & Banking Co.

v. Pettus, 113 U.S. 116 (1885), this Court has recognized consistently that a litigant or a lawyer who

recovers a common fund for the benefit of persons

other than himself or his client is entitled to a

reasonable attorney’s fee from the fund as a whole,”

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980),

provided the fee award is “made with moderation.”

Greenough, 105 U.S. at 536–37. But payments to

representative plaintiffs for their own “personal

services” in the case are “decidedly objectionable,”

“illegally made,” id. at 537–38, and “unsupported by

reason or authority.” Pettus, 113 U.S. at 122. The

Eleventh Circuit thus holds that “Supreme Court

precedent prohibits incentive awards” to reward

litigants for serving as representative plaintiffs in

class-action litigation. Johnson v. NPAS Solutions,

LLC, 975 F.3d 1244, 1255 (11th Cir.2020), reh’g

denied, 43 F.4th 1138 (11th Cir.2022). Five other

circuits have rejected that conclusion, finding it

superseded by modern class-action practice.

The question presented is:

May district courts, consistent with the

common-fund doctrine of Greenough and Pettus,

and without authorization by statute or rule,

approve payments from class-action commonfund settlement funds to reward litigants for

serving as representative plaintiffs?

PARTIES TO THE PROCEEDING

Eric Alan Isaacson, the Petitioner here, was an

Objector-Appellant below.

The National Veterans Legal Services Program, the

National Consumer Law Center, and the Alliance for

Justice, are Respondents here, and were the Named

Plaintiffs-Appellees below.

The United States of America was the DefendantAppellee below, and is a Respondent here.

Because Isaacson is not a corporation, a corporate

disclosure statement is not required under Supreme

Court Rule 29.6.

RELATED PROCEEDINGS

This case arises from the following proceedings:

National Veterans Legal Servs. Program, et al. v.

United States, United States District Court for the

District of Columbia, No.1:16-cv-00745, judgment

entered March 20, 2024, reported as National Veterans

Legal Services Program v. United States, 724

F.Supp.3d 1 (D.D.C. 2024), aff’d, 170 F.4th 1353

(Fed.Cir.2026).

National Veterans Legal Services Program, et al. v.

United States, United States Court of Appeals for the

Federal Circuit Nos.2018-154 & 2018-155 (petitions

for leave to appeal), 2019-1081 & 2019-1083 (appeal &

cross-appeal), judgment entered August 6, 2020, and

reported as National Veterans Legal Servs Program v.

United States, 968 F.3d 1340 (Fed.Cir.2020).

National Veterans Legal Services Program, et al. v.

United States, United States Court of Appeals for the

Federal Circuit No.2024-1757, judgment entered

iii

March 20, 2026, and reported as National Veterans

Legal Services Program v. United States, 170 F.4th

1353 (Fed.Cir.2026).

In 2022, a class member Michael T. Pines filed an

appeal to the United States Court of Appeals for the

District of Columbia Circuit, docketed as No.21-5291,

and captioned as National Veterans Legal Services

Program, et al. v. United States, Michael T. Pines

Appellant, which was dismissed for lack of prosecution

on September 28, 2022.

No other proceedings are directly related to this

case within the meaning of this Court’s Rule

14.1(b)(iii).

TABLE OF CONTENTS

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING............................ii

RELATED PROCEEDINGS........................................ii

TABLE OF CONTENTS.............................................iv

TABLE OF AUTHORITIES.......................................vi

REPORTS OF THE OPINIONS BELOW...................1

JURISDICTION...........................................................1

RULE INVOLVED.......................................................1

STATEMENT OF THE CASE.....................................1

REASONS FOR GRANTING THE WRIT..................3

I. REVIEW IS NEEDED TO RESOLVE AN

INTRACTABLE INTERCIRCUIT CONFLICT ON

WHETHER THIS COURT’S FOUNDATIONAL

COMMON-FUND PRECEDENTS CONTINUE TO

PROHIBIT SERVICE AWARDS.............................5

II. THE FEDERAL CIRCUIT’S DECISION IN

THIS CASE IS WRONG........................................16

III. THIS CASE PROVIDES AN EXCELLENT

VEHICLE FOR RESOLVING AN EXTREMELY

IMPORTANT ISSUE AFFECTING MANY CLASS

ACTIONS................................................................23

CONCLUSION...........................................................24

APPENDIX

APPENDIX A –

Opinion of the Federal Circuit

(March 20, 2026).....................................................1a

APPENDIX B –

Opinion of the District Court

(March 20, 2024)...................................................29a

APPENDIX C –

Judgment of the District Court

(March 20, 2024)...................................................84a

APPENDIX D –

Order of the Federal Circuit

Denying Petition for Rehearing

(June 5, 2026).......................................................91a

APPENDIX E –

Federal Rule of Civil Procedure 23.....................93a

TABLE OF AUTHORITIES

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001)................................................22

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975)..................................................6

Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997)..........................................12, 21

Bloomer v. Liberty Mut. Ins. Co.,

445 U.S. 74 (1980)....................................................6

Boeing Co. v. Van Gemert,

444 U.S. 472 (1980)...............................................i, 5

Central Railroad & Banking Co. v. Pettus,

113 U.S. 116 (1885)

(“Pettus”)........................i, 2–8, 11–13, 15–18, 21–23

China Agritech Inc. v. Resh,

584 U.S. 732 (2018)....................................14–16, 23

Cook v. Niedert,

142 F.3d 1004 (7th Cir.1998).................................15

Crutcher v. Logan,

102 F.2d 612 (5th Cir.1939).....................................6

In re Dry Max Pampers Litig.,

724 F.3d 713 (6th Cir.2013).............................20, 24

Egbert v. Boule,

596 U.S. 482 (2022)................................................22

In re Equifax Inc. Customer Data

Security Breach Litig.,

999 F.3d 1247 (11th Cir.2021)...........................9, 14

vii

Fikes Wholesale, Inc. v. HSBC Bank USA, N.A.,

62 F.4th 704 (2d Cir.2023).................................9–11

Gortat v. Capala Bros.,

949 F.Supp.2d 374 (E.D.N.Y.2013).......................21

Granada Investments, Inc. v. DWG Corp.,

962 F.2d 1203 (6th Cir.1992)...................................6

Hansberry v. Lee,

311 U.S. 32 (1940)....................................................8

Hyland v. Navient Corp.,

48 F.4th 110 (2d Cir.2022).................................9, 11

Johnson v. NPAS Solutions, LLC,

975 F.3d 1244 (11th Cir.2020),

rehearing denied, 43 F.4th 1138

(11th Cir.2022),.................................i, 3–4, 9–12, 14

Johnson v. NPAS Solutions,

43 F.4th 1138 (11th Cir.2022)..................i, 3, 10, 14

Medical & Chiropractic Clinic, Inc. v. Oppenheim,

981 F.3d 983 (11th Cir.2020).............................9, 14

Melito v. Experian Mktg. Sols., Inc.,

923 F.3d 85 (2d Cir.2019)...................................9, 11

Mickens v. Taylor,

535 U.S. 162 (2002)..........................................15, 23

Moses v. New York Times Co.,

79 F.4th 235 (2d Cir.2023)

(“Moses I”).....................................................9, 11–14

Moses v. The New York Times Co.,

No.24-2979, 2026 WL 364231

(2d Cir. Feb. 10, 2026)(“Moses II”).....................9, 14

Murray v. Grocery Delivery E-Servs. USA Inc.,

55 F.4th 340 (1st Cir.2022)................................9, 12

viii

National Veterans Legal Services Program v.

United States,

170 F.4th 1353

(Fed.Cir.2026)(“NVLSP”)...................ii–iii, 1, 10, 16

Scott v. Dart,

99 F.4th 1076 (7th Cir.2024), reh’g denied,

108 F.4th 931 (7th Cir.2024).....................10, 13, 16

Scott v. Dart,

108 F.4th 931 (7th Cir.2024)...........................10, 13

Shalala v. Illinois Council on Long Term Care,

529 U.S. 1 (2000)..............................................15, 23

Shane Group, Inc. v. Blue Cross Blue Shield,

825 F.3d 299 (6th Cir.2016).............................20, 24

Smith v. Swormstedt,

57 U.S. (16 How.) 288 (1853).............................8, 17

Supreme Tribe of Ben-Hur v. Cauble,

255 U.S. 356 (1921)............................................8, 17

Terrett v. Taylor,

13 U.S. (9 Cranch) 43 (1815)....................................8

Touche Ross & Co. v. Redington,

442 U.S. 560 (1979)................................................22

Trustees v. Greenough,

105 U.S. 527 (1882)...................i, 2–8, 11–18, 20–24

U.S. Airways, Inc. v. McCutchen,

569 U.S. 88 (2013)....................................................6

West v. Randall,

29 F.Cas. 718 (C.C.D.R.I.1820)................................8

Wormley v. Wormley,

21 U.S. 421 (1823)....................................................8

STATUTES

28 U.S.C. §1254(1)........................................................1

28 U.S.C. §1331............................................................2

28 U.S.C. §1346(a)(2)...................................................2

28 U.S.C. §2072(b)................................................12, 21

RULES

Fed.R.Civ.P. 23...............1–2, 4, 7–8, 11–13, 16–22, 24

Supreme Court Rule 14.1(b)(iii).................................iii

Supreme Court Rule 29.6............................................ii

SECONDARY AUTHORITIES

Anne Ashmore,

Dates of Supreme Court Decisions and Arguments:

United States Reports Volumes 2-107 (1791-1882)

(Library of the Supreme Court of the United

States, August 2006), online:

https://www.supremecourt.gov/opinions/datesofdeci

sions.pdf ; https://bit.ly/3G8HQGm ;

https://perma.cc/4DJC-JT4S....................................2

Andrew Blum,

Class Actions’ New Wrinkle: Bonus Awards,

National Law Journal, Oct. 7, 1991, p.1.................7

John P. Dawson,

Lawyers and Involuntary Clients: Attorney Fees

from Funds,

87 Harv.L.Rev. 1597 (1974)...........................5–6, 17

Howard M. Downs,

Federal Class Actions: Diminished Protection

for the Class and the Case for Reform,

73 Neb.L.Rev. 646 (1994)...................................7, 21

Theodore Eisenberg & Geoffrey P. Miller,

Incentive Awards to Class Action Plaintiffs:

An Empirical Study,

53 U.C.L.A. L.Rev. 1303 (2006).........................7, 20

Thomas E. Willging, Laural L. Hooper & Robert J.

Niemic,

An Empirical Analysis of Rule 23 to Address the

Rulemaking Challenges,

71 N.Y.U. L.Rev. 74 (1996)................................7, 21

REPORTS OF THE OPINIONS BELOW

The Federal Circuit’s Summary Order affirming the

District Court’s approval of a common-fund classaction settlement, along with $10,000 incentive

payments to each of the class representatives, is

published as National Veterans Legal Services

Program v. United States, 170 F.4th 1353 (Fed.Cir.

2026)(“NVLSP”). It is reproduced at Pet.App.1a-28a.

The District Court’s order and opinion approving

the class-action settlement and awarding each of the

the representative plaintiffs a $10,000 incentive

payment is published as National Veterans Legal

Servicdes Program v. United States, 724 F.Supp. 3d 1

(D.D.C.2024). See Pet.App.29a–83a.

JURISDICTION

The Court of Appeals issued its decision on March

20, 2026, Pet.App.1a–28a, and on June 5, 2026, denied

Isaacson’s timely petition for rehearing. Pet.App.91a–

92a.

This Court has jurisdiction under 28 U.S.C.

§1254(1).

RULE INVOLVED

Federal Rule of Civil Procedure 23 is reproduced at

Pet.App.93a–102a.

STATEMENT OF THE CASE

This case involves a $125 million settlement of a

class-action, under Federal Rule of Civil Procedure 23,

asserting claims against the United States on behalf

of a class of hundreds of thousands of PACER uses.

The named plaintiffs are three nonprofit

organizations that alleged the government charged

them, and other PACER users, legally excessive rates.

In addition to their own share of the settlement

proceeds, the three named plaintiffs were awarded

$10,000 each as an “incentive award” or “service

award” rewarding them for service rendered as a Rule

23 class representatives, and to encourage others to

file class actions in the future.

The District Court exercised jurisdiction under

under 28 U.S.C. §1331 and the Little Tucker Act, 28

U.S.C. §1346(a)(2), which authorizes federal district

courts to exercise jurisdiction over a “civil action or

claim against the United States, not exceeding

$10,000 in amount.” 28 U.S.C. §1346(a)(2).

Petitioner Eric Alan Isaacson is a California

attorney and member of the settlement class who

appeared below to object to the proposed settlement’s

structure, to the proposed attorney’s fee award, and to

incentive awards of $10,000 apiece requested by the

three named plaintiffs. Isaacson specifically objected

that incentive awards are barred by this Court’s

foundational common-fund decisions, Trustees v.

Greenough, 105 U.S. 527, 537-38 (1882)(“Greenough”),

and Central Railroad & Banking Co. v. Pettus, 113

U.S. 116, 122 (1885)(“Pettus”).1

The District Court overruled Isaacson’s objections

and approved the $125 million settlement, awarding

attorney’s fees in the amount of nearly $24 million, as

Although many lower courts, including both the District

Court and Court of Appeals in this case, give Greenough’s year of

decision as 1881, the case was in fact argued before this Court on

March 15, 1882, and decided on May 8, 1882. See Anne Ashmore,

Dates of Supreme Court Decisions and Arguments: United States

Reports Volumes 2-107 (1791-1882) at 162 (Library of the

Supreme Court of the United States, August 2006), online:

https://www.supremecourt.gov/opinions/datesofdecisions.pdf

;

https://bit.ly/3G8HQGm ; https://perma.cc/4DJC-JT4S.

well as incentive awards of $10,000 apiece to each of

the named plaintiffs.

Following the District Court’s approval of the

settlement, award of attorney’s fees, and of $10,000

incentive awards for each of the Named Plaintiffs,

Isaacson timely appealed.

A panel of the Federal Circuit on March 20, 2026,

affirmed the settlement, the fee award, and the three

$10,000 incentive awards. Pet.App.1a–28a. It rejected

Isaacson’s challenge to the district court’s Little

Tucker Act subject-matter jurisdiction, as well as his

objections to the settlement’s structure, and to the $24

million common-fund attorney’s fee award, to the

$10,000 incentive awards. The Federal Circuit

specifically rejected Isaacson’s contention that this

Court’s decisions in Greenough and Pettus bar

incentive awards. Pet.App.20a–27a.

Isaacson filed a timely petition for rehearing, which

the Court of Appeals denied on June 5, 2026.

Pet.App.91a–92a.

Isaacson now seeks this Court’s review of whether

the $10,000 incentive awards violate this Court’s

foundational common-fund precedents, which held

that payments rewarding representative plaintiffs for

their services rendered securing a common fund are

both “decidedly objectionable” and “illegally made.”

Greenough, 105 U.S. 537-38; accord Pettus, 113 U.S.

at 122; see Johnson v. NPAS Solutions, LLC, 975 F.3d

1244, 1255 (11th Cir.2020)(Greenough rejected such

awards “as unsupported by reason or authority”),

reh’g denied, 43 F.4th 1138 (11th Cir.2022). .

REASONS FOR GRANTING THE WRIT

This case presents a clear conflict among the

circuits on the propriety of paying representative

plaintiffs “service awards” or “incentive awards” from

common-fund recoveries in order to reward them for

serving as class representatives—and to provide an

incentive encouraging others to file and settle class

action lawsuits. Faithfully following this Court’s

decisions in Greenough and Pettus, the Eleventh

Circuit holds that “Supreme Court precedent

prohibits incentive awards.” NPAS Solutions, 975

F.3d at 1255. But citing policies they believe underlie

Federal Rule of Civil Procedure 23, the First, Second,

Seventh, Ninth, and Federal Circuits all hold this

Court’s foundational common-fund decisions are

inapplicable to common-fund class actions.

They are wrong. Neither Rule 23 nor its underlying

policies can overturn decisions of this Court. It is this

Court’s sole prerogative to determine whether

Greenough and Pettus retain vitality in barring

payments to litigants for service as representative

plaintiffs. And it is Congress’ prerogative, not the

lower courts’, to determine whether class-action

litigation should be rewarded and encouraged by

paying named plaintiffs a bonus for pursuing class

action litigation.

No statute authorizes such awards as a general

matter, Rule 23 says nothing to authorize them, and

the policies underlying class-action litigation may not

be advanced by paying named plaintiffs to file and

settle class actions. The promise of incentive awards

can be used by class counsel first to recruit

representative plaintiffs, who otherwise would not

care to litigate a claim, to nonetheless file class actions

on claims that they otherwise do not really care about.

The promise of incentive awards can then be used to

induce representative plaintiffs to acquiesce in

settlements that recover little for the class, or that

award attorney’s fee awards compensating class

counsel too generously.

REVIEW IS NEEDED TO RESOLVE AN

INTRACTABLE INTERCIRCUIT CONFLICT ON WHETHER THIS COURT’S

FOUNDATIONAL COMMON-FUND PRECEDENTS CONTINUE TO PROHIBIT

SERVICE AWARDS

“Since the decisions in Trustees v. Greenough, 105

U.S. 527 (1882), and Central Railroad & Banking Co.

v. Pettus, 113 U.S. 116 (1885), this Court has

recognized consistently that a litigant or a lawyer who

recovers a common fund for the benefit of persons

other than himself or his client is entitled to a

reasonable attorney’s fee from the fund as a whole.”

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).

But this Court’s common-fund precedents equally hold

that any payment compensating a representative

plaintiff for his or her own “personal services” in

prosecuting the litigation is both “decidedly

objectionable” and “illegally made.” Greenough, 105

U.S. at 537-38. A named plaintiff’s “claim to be

compensated, out of the fund ... for his personal

services” the Court has flatly “rejected as unsupported

by reason or authority.” Pettus, 113 U.S. at 122.; see

generally John P. Dawson, Lawyers and Involuntary

Clients: Attorney Fees from Funds, 87 Harv.L.Rev.

1597, 1601-02 (1974).

Greenough and Pettus seemed to be pretty clear.

Professor John P. Dawson explained in his 1974

article reviewing the common-fund doctrine:

The Court in Greenough ... drew a sharp

distinction .... While [Francis] Vose, the active

litigant, was held to be entitled to a “charge”

for the reasonable value of his lawyers’

services, which the lower court would fix with

a wide discretion, it had no discretion to award

an allowance to Vose himself for his own time

and expenses.

Dawson, Lawyers and Involuntary Clients, 87 Harv.

L. Rev. at 1602.2 For a century lower courts honored

the rule of Greenough and Pettus, that named

plaintiffs in common-fund cases may be reimbursed

for reasonable litigation expenses including attorney’s

fees, but not for their personal service as class

representatives. In Crutcher v. Logan, 102 F.2d 612,

613 (5th Cir.1939), for example, the Fifth Circuit

recognized that under Greenough and Pettus

claimants who are themselves interested in a common

fund can receive “no compensation for personal

services.” And in Granada Investments, Inc. v. DWG

Corp., 962 F.2d 1203, 1207-08 (6th Cir.1992), the

Sixth Circuit applied Greenough’s distinction between

litigation expenses on the one hand, and “personal

services and private expenses,” on the other).

Writing in 1974, Professor Dawson observed that

Greenough “has been followed in this.” Dawson,

Lawyers and Involuntary Clients, 87 Harv. L. Rev. at

1602. He could find “no case that uses the Greenough

doctrine to reimburse the litigants themselves for

their own time, travel, or personal expenses, however

2 For examples of opinions favorably citing Professor Dawson’s

article see: U.S. Airways, Inc. v. McCutchen, 569 U.S. 88, 103

(2013); Bloomer v. Liberty Mut. Ins. Co., 445 U.S. 74, 88 n.15

(1980); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.

240, 258 (1975).

necessary their efforts may have been to litigation

that conferred gains on others.” Id.

That soon changed, and the circuits now are in clear

conflict concerning whether Greenough and Pettus

continue to bar payments from common-fund

recoveries to compensate litigants for their service as

representative plaintiffs, and to encourage others to

file even more class actions.

Nothing in Rule 23 purports to supersede

Greenough and Pettus by authorizing such awards.

Writing in 2006, Professors Theodore Eisenberg and

Geoffrey Miller noted the “lack of specific

authorization for incentive awards in the relevant

statutes or court rules.”3 “Beginning around 1990,

however, awards for representative plaintiffs began to

find readier acceptance,” and soon orders “approving

incentive awards proliferated,” so that “[b]y the turn

of the century, some considered these awards to be

‘routine.’”4 Today they are ubiquitous, their promise

employed by class-action lawyers to recruit

representative plaintiffs who otherwise wouldn’t care

enough to litigate, and then to induce any

representative plaintiffs who wish to litigate too

3 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards

to Class Action Plaintiffs: An Empirical Study, 53 U.C.L.A.

L.Rev. 1303, 1312-13 (2006).

4 Id. at 1310-11 & n.21; see also Howard M. Downs, Federal

Class Actions: Diminished Protection for the Class and the Case

for Reform, 73 Neb.L.Rev. 646, 673 (1994)(“Cases in the late

1970s and early 1980s abhorred such preferences, but recent

cases permit such practices more freely.”)(footnotes omitted);

Thomas E. Willging, Laural L. Hooper & Robert J. Niemic, An

Empirical Analysis of Rule 23 to Address the Rulemaking

Challenges, 71 N.Y.U. L. Rev. 74, 101 n.102 (1996); Andrew

Blum, Class Actions’ New Wrinkle: Bonus Awards, National Law

Journal, Oct. 7, 1991, p.1.

vigorously to accept settlements that may recover

little for the class while rewarding class counsel with

rich fees.

The dramatic change cannot be attributed to

anything in Federal Rule of Civil Procedure 23, which

currently governs class actions, for it says nothing at

all to authorize payments prohibited by Greenough

and Pettus which, although they preceded Rule 23,

were themselves class actions that produced commonfund recoveries. Class actions, it is well to remember,

were around long before Rule 23’s promulgation in

1938, let alone its amendment in 1966.5

Both Greenough and Pettus held that when a

representative plaintiff’s litigation produces a

“common fund” benefiting a larger class, the fund may

be assessed for representative plaintiff’s litigation

expenses and reasonable attorney’s fees. See

Greenough, 105 U.S. at 536-37; Pettus, 113 U.S. at

122. But Greenough and Pettus also clearly held that

any payment from a common fund compensating

representative plaintiffs for their own “personal

services” on behalf of a class is both “decidedly

objectionable” and “illegally made.” Greenough, 105

U.S. at 537-38. A named plaintiff’s “claim to be

5 See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 363

(1921)(“Class suits have long been recognized in federal

jurisprudence.”)(citing, e.g., Smith v. Swormstedt, 57 U.S. (16

How.) 288, 303 (1853)); see also Hansberry v. Lee, 311 U.S. 32, 4242 (1940)(collecting citations); Terrett v. Taylor, 13 U.S. (9

Cranch) 43, 43 (1815)(Taylor and other vestrymen of the

Episcopal Church of Alexandria sued “on behalf of themselves

and others, members of the said church, and of the congregation

belonging to the said church’”)(syllabus; emphasis added);

Wormley v. Wormley, 21 U.S. 421, 451, n.v (1823)(reporter’s

note); West v. Randall, 29 F.Cas. 718, 722 (C.C.D.R.I.1820)(Story,

J.).

compensated, out of the fund ... for his personal

services” was “rejected as unsupported by reason or

authority.” Pettus, 113 U.S. at 122.

Neither decision focused on whether the particular

amount sought was excessive. They broadly

proscribed payments to representative plaintiffs,

without qualification as to the amount sought.

The Eleventh Circuit accordingly holds that

“Supreme Court precedent prohibits incentive

awards.” NPAS Solutions, 975 F.3d at 1255.6 Yet the

First, Second, Seventh, Ninth and Federal Circuit now

all hold to the contrary, that this Court’s foundational

common-fund decisions have been superseded by the

lower courts’ more recent practice, since the 1990s, of

freely awarding bonuses to representative plaintiffs.

Five circuits are in plain conflict with the Eleventh

Circuit —

The First Circuit: Murray v. Grocery

Delivery E-Servs. USA Inc., 55 F.4th 340, 35253 (1st Cir.2022);

The Second Circuit: Melito v. Experian

Mktg. Sols., Inc., 923 F.3d 85, 96 (2d Cir.2019);

Hyland v. Navient Corp., 48 F.4th 110, 123-24

(2d Cir.2022); Fikes Wholesale, Inc. v. HSBC

Bank USA, N.A., 62 F.4th 704, 721 (2d

Cir.2023); Moses v. New York Times Co., 79

F.4th 235, 253–56 (2d Cir.2023)(“Moses I”),

reaffirmed by Moses v. New York Times Co.,

Accord, e.g., In re Equifax Inc. Customer Data Security

Breach Litig., 999 F.3d 1247, 1257 (11th Cir.2021)(“such awards

are prohibited”); Medical & Chiropractic Clinic, Inc. v.

Oppenheim, 981 F.3d 983, 994 n.4 (11th Cir.2020)(“service

awards are foreclosed by Supreme Court precedent”).

No. 24-2979, 2026 WL 364231, at *3 (2d Cir.

Feb. 10, 2026)(“Moses II”), petition for

certiorari docketed sub nom. Isaacson v.

Moses, No.25-1411 (filed June 18, 2026);

The Seventh Circuit: Scott v. Dart, 99 F.4th

1076, 1082, 1084-88 (7th Cir.2024), reh’g

denied, 108 F.4th 931 (7th Cir.2024);

The Ninth Circuit: In re Apple Inc. Device

Performance Litig., 50 F.4th 769, 785-87 (9th

Cir.2022);

The Federal Circuit: National Veterans

Legal Services Program v. United States, 170

F.4th

1353,

1364–68

(Fed.Cir.2026)

(“NVLSP”), see Pet.App.20a–27a.

These decisions typically note controversy

surrounding the Eleventh Circuit’s decision in

Johnson v. NPAS Solutions, which was accompanied

by Judge Beverly Martin’s vigorous dissent. See NPAS

Solutions, 975 F.4th at 1264–1269 (Martin, Cir.J.,

dissenting). When it took the Eleventh Circuit the

better part of two years to deny en banc rehearing,

moreover, the order was accompanied by a further

dissent authored by Judge Jill Pryor and joined by

Judges Charles R. Wilson, Adalberto Jordan, and

Robin S. Rosenbaum. See Johnson v. NPAS Solutions,

43 F.4th 1138, 1139-53 (11th Cir.2022)(Jill Pryor,

Cir.J., dissenting from denial of en banc rehearing).

The Second Circuit has continued to sustain

incentive awards even as it acknowleged in Fikes

Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F.4th

704, 721 (2d Cir.2023), that “[s]ervice awards are

likely

impermissible

under

Supreme

Court

precedent.” In Fikes Wholesale the Second Circuit

explained that it would adhere to its own precedents

allowing incentive awards—even though they conflict

with this Court’s foundational common-fund

decisions—because “practice and usage seem to have

superseded Greenough (if that is possible).” Fikes

Wholesale, 62 F.4th at 721.

In a concurring opinion the Fikes Wholesale panel

opinion’s author, Judge Dennis Jacobs, explained that

the panel could not follow the Eleventh Circuit’s

“thorough and well-reasoned opinion” in Johnson v.

NPAS Solutions, because the Second Circuit “has

twice come out the opposite way,” first in Melito v.

Experian Marketing Solutions, 923 F.3d 85, 96 (2d

Cir.2019), which contained no real analysis, and then

in Hyland v. Navient Corp., 48 F.4th 110, 124 (2d

Cir.2022), which “over-read Melito to hold that ‘Rule

23 does not per se prohibit service awards.’” Fikes

Wholesale, 62 F.4th at 729 (Jacobs, Cir.J., concurring).

As a consequence of Melito and Hyland, Judge Jacobs

wrote, “we now find ourselves on the wrong side of a

circuit split.” Id.

A different Second Circuit panel subsequently

asserted that this Court’s holdings in “Greenough and

Pettus have been superseded, not merely by practice

and usage” in the lower courts, “but by Rule 23, which

creates a much broader and more muscular class

action device than the common law predecessor that

spawned nineteenth-century precedents.” Moses v.

New York Times Co., 79 F.4th 235, 254 (2d

Cir.2023)(“Moses I”). According to Moses I, this

Court’s

common-fund

precedents—explicitly

prohibiting payments to compensate litigants for their

service as representative plaintiffs—were implicitly

overruled by Federal Rule of Civil Procedure 23

(which says nothing at all on the subject). Moses I did

not explain when or how Rule 23 created a claim for

representative plaintiffs to be compensated from a

common fund recovery—let alone how it might be

reconciled with the Rules Enabling Act’s provision

that “[s]uch rules shall not abridge, enlarge or modify

any substantive right.” 28 U.S.C. §2072(b); see

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 61213 (1997).7

Justified or not, the First, and Seventh, Ninth, and

Federal Circuits all have joined the Second Circuit in

dismissing the continuing relevance of this Court’s

foundational common-fund class-action decisions to

current litigation under Rule 23. The Ninth Circuit,

for example, has specifically rejected the Eleventh

Circuit’s conclusion “that Greenough and Pettus

prohibit any incentive award to class representatives.”

Apple Device, 50 F.4th at 785 n.13 (9th

Cir.2022)(citing Johnson v. NPAS Solutions, 975 F.3d

at 1255, with disapproval).

The First Circuit in Murray dismissed this Court’s

Greenough and Pettus decisions as “late-nineteenthcentury creditor lawsuits” that, though plainly

litigated by bondholders as class actions, cannot be

deemed to control “modern-day class actions under

Rule 23.” Murray, 55 F.4th at 352. The First Circuit’s

opinion identified nothing in Rule 23 that purports to

7 On remand, the parties in Moses I entered a revised

settlement and the district court again awarded the

representative plaintiff a $5,000 incentive award. As an objecting

class member in that case (as well as in this one) Isaacson

appealed to the Second Circuit which reiterated in Moses v. The

New York Times Co., No.24-2979, 2026 WL 364231, at *3 (2d Cir.

Feb. 10, 2026)(“Moses II”), that Moses I controls, and that

Greenough and Pettus do not. Isaacson has filed a petition for

certiorari seeking this Court’s review of Second Circuit’s decision

in that case. See Isaacson v. Moses, No.25-1411 (U.S. June 18,

2026).

authorize the lower courts’ incentive awards of the

past several decades.

The Seventh Circuit also has declined to follow the

Eleventh Circuit—in a decision holding that a named

plaintiff who after a denial of class certification had

settled his individual claim for $7,500 should

nevertheless be able pursue claims on behalf of a class

on remand, with a potential incentive award giving

him the concrete stake in the case required by Article

III. Scott v. Dart, 99 F.4th 1076, 1084-88, reh’g denied,

108 F.4th 931, 932 (7th Cir.2024). The Seventh Circuit

endorsed the view expressed in Moses I: “As the

Second Circuit recently explained, ‘Greenough and

Pettus have been superseded, not merely by practice

and usage, but by Rule 23, which creates a much

broader and more muscular class action device than

the common law predecessor that spawned

nineteenth-century precedents.’” Scott v. Dart, 99

F.4th at 1085 (quoting Moses I, 79 F.4th at 254-55).

Dissenting in other respects, Judge Kirsh observed

that the circuits will remain in conflict on incentive

awards no matter what the Seventh Circuit does,

adding that “‘[u]nless our circuit is an outlier, ‘it

makes little sense for us to jump from one side of the

circuit split to the other.’” Scott v. Dart, 99 F.4th at

1093-94 (Kirsch, dissenting)(citation omitted). Judge

Easterbrook’s opinion on denial of en banc rehearing

said he “agree[d] with that view and therefore have

not called for a vote on the petition for rehearing en

banc.” Scott v. Dart, 108 F.4th 931, 932 (7th Cir.2024).

Whatever the Seventh Circuit might do, Judge

Easterbrook observed, “[t]he Supreme Court must

sooner or later resolve this conflict.” Id. The Seventh

Circuit clearly has no intention of revisiting the issue

itself.

This Court’s review is needed now to resolve this

already clear and deeply embedded conflict among the

circuits. The Eleventh Circuit has adhered to its

September 2020 Johnson v. NPAS Solutions holding

despite Judge Jill Pryor’s lengthy August 2022 dissent

from denial of en banc rehearing, which itself

concludes that “it will be up to the Supreme Court to

overrule or clarify Greenough and Pettus.” Johnson v.

NPAS Solutions, LLC, 43 F.4th 1138, 1139-53 (11th

Cir.2022)(Jill Pryor, Cir.J., joined by Wilson, Jordan,

and Rosenbaum, Cir.JJ., dissenting from denial of en

banc rehearing). That “Supreme Court precedent

prohibits incentive awards,” Johnson v. NPAS

Solutions, 975 F.3d at 1255, now is well-settled

Eleventh Circuit law.8

The contrary position of the First, Second, Seventh,

Ninth, and Federal Circuits also is settled. They all

emphatically reject the Eleventh Circuit’s conclusion

that Greenough and Pettus bar incentive awards

compensating named plaintiffs for personal service as

class representatives. Only this Court can resolve the

conflict.

The need for this Court’s review is intensified,

moreover, by the influence of a footnote of passing

dictum in in China Agritech Inc. v. Resh, 584 U.S. 732,

747 n.7 (2018), an opinion on American Pipe tolling

that cites a 1998 Seventh Circuit opinion sustaining

an incentive award in order to illustrate that

representative plaintiffs have motives for taking

charge of class-action lawsuits that they otherwise

8 See, e.g., In re Equifax Inc. Customer Data Security Breach

Litig., 999 F.3d 1247, 1257 (11th Cir.2021)(“such awards are

prohibited”); Medical & Chiropractic Clinic v. Oppenheim, 981

F.3d 983, 994 n.4 (11th Cir.2020)(“service awards are foreclosed

by Supreme Court precedent”).

might not have cared to get involved in. The footnote

said:

The class representative might receive a share

of class recovery above and beyond her

individual claim. See, e.g., Cook v. Niedert, 142

F.3d 1004, 1016 (C.A.7 1998)(affirming class

representative’s $25,000 incentive award).

China Agritech, 138 S.Ct. at 1811 n.7.

China Agritech can hardly be taken as a decision

that considered and overruled, or significantly

limited, the holdings of Greenough and Pettus, which

it does not even cite, let alone discuss. “This Court

does not normally overturn, or so dramatically limit,

earlier authority sub silentio.” Shalala v. Illinois

Council on Long Term Care, 529 U.S. 1, 18 (2000).

“The notion that [this Court] created a new rule sub

silentio—and in a case where certiorari had been

granted on an entirely different question, and the

parties had neither briefed nor argued the ... issue—is

implausible.” Mickens v. Taylor, 535 U.S. 162, 172

(2002).

Yet lower courts—including the Federal Circuit in

this case—are citing China Agritech to justify

incentive awards. In Moses I the Second Circuit

rationalized its approval of incentive awards by

asserting that “the Supreme Court appears to have

left Greenough and Pettus in the rear view,” when

“without reference to either case, the Supreme Court

acknowledged that a class representative ‘might

receive a share of class recovery above and beyond her

individual claim.’” Moses I, 79 F.4th at 255 (quoting

China Agritech, 584 U.S. at 747 n.7 (citing Cook v.

Niedert, 142 F.3d at 1016).

The Ninth Circuit rationalized its approval of

incentive awards in Apple Device on the ground that

“the Supreme Court recently acknowledged that ‘[a]

class representative might receive a share of class

recovery above and beyond her individual claim”

through an incentive award. Apple Device

Performance Litig., 50 F.4th at 785 (citing China

Agritech, 584 U.S. at 747 n.7). The Seventh Circuit

and Federal Circuit have similarly cited China

Agritech’s footnote as a basis for approving incentive

awards notwithstanding this Court’s opinions in

Greenough and Pettus. See Scott v. Dart, 99 F.4th at

1087; NVLSP, 170 F.4th at 1367, Pet.App.26a.

In this case, the Federal Circuit cites China

Agritech to conclude that “the Supreme Court appears

to have regarded class action incentive awards as

distinct from the salary-like payments prohibited in

Greenough,” which it holds “did not speak to Rule 23

class actions [that] would not exist for another eight

decades.” Pet.App.26a.

It should be this Court’s exclusive prerogative to

decide whether to overrule, reaffirm, or modify

Greenough and Pettus. And it should act now. Else the

lower Courts will conclude that it has truly abandoned

its leading common-fund precedents.

II.

THE FEDERAL CIRCUIT’S DECISION IN

THIS CASE IS WRONG

This case provides an excellent vehicle for resolving

the conflict among the circuits and with this Court’s

precedents for several reasons—including that the

Federal Circuit’s opinion is wrong.

The Court of Appeals asserts that Greenough and

Pettus may be ignored because the “law-suits at issue

in Greenough and Pettus bear little resemblance to

today’s class actions.” Pet.App.24a. But that is not

true. Although the Federal Rules date to 1938, both

the common-fund doctrine and class actions preceded

Rule 23 by many decades. See Supreme Tribe of BenHur v. Cauble, 255 U.S. 356, 363 (1921)(“Class suits

have

long

been

recognized

federal

jurisprudence.”)(citing, e.g., Smith v. Swormstedt, 57

U.S. (16 How.) 288, 303 (1853)). See supra p.8 note 5

(collecting cases).

In fact, the Greenough and Pettus cases were

themselves class actions filed on behalf of

bondholders, and therefore are directly analogous to

current securities class actions. Greenough in

particular was filed as a class action by Francis Vose,

a bondholder “of the Florida Railroad Company, on

behalf of himself and the other bondholders.”

Greenough, 105 U.S. at 528. Vose prosecuted the case

as a class action that he “filed not only in behalf of the

complainant himself, but in behalf of the other

bondholders.” Id. at 532. As a bondholder, the

Supreme Court explained, Vose “was a creditor, suing

on behalf of himself and other creditors, for his and

their own benefit and advantage.” Greenough, 105

U.S. at 537. Greenough plainly was a common-fund

class action.

Pettus was similarly “framed as a class action,”9 and

this Court’s opinion emphasized that Greenough itself

“was instituted by the holder of the bonds of a railroad

company, on behalf of himself and other bondholders.”

Pettus, 113 U.S. at 122. These were not merely

common-fund cases; they were common-fund class

9 John P. Dawson, Lawyers and Involuntary Clients: Attorney

Fees from Funds, 87 Harv.L.Rev. 1597, 1608 (1974).

actions. In this case, the Court of Appeals has plainly

erred by dismissing Greenough and Pettus as

irrelevant to class actions.

The Court of Appeals concludes that adoption of

Rule 23 somehow renders Greenough and Pettus

irrelevant. As adopted in 1938 to standardize

proceedings in federal class actions, and amended in

1966 to rationalize and expand the class-action device,

Rule 23 said absolutely nothing to overrule or limit

Greenough and Pettus. Neither have any of its

subsequent amendments addressed or authorized

incentive awards to representative plaintiffs. The

Court of Appeals acknowledges that “Rule 23 is silent

with respect to incentive awards.” Pet.App.20a.

So Greenough and Pettus should still control

common-fund class actions—unless this Court says

otherwise.

Citing a 1974 Sixth Circuit decision, the Court of

Appeals nonetheless asserts that in the face of Rule

23’s silence,

soon after Rule 23’s inception, courts began

approving incentive awards for class

representatives. See, e.g., Thornton v. E. Tex.

Motor Freight, 497 F.2d 416, 420 (6th

Cir.1974).

Pet.App.20a.

That is not accurate. Class actions were well known

in American jurisprudence when the rules governing

them were standardized in Rule 23, which has

governed federal class actions since 1938. Federal

courts found in Rule 23 no authorization for awarding

special bonuses to class representatives, and for half a

century they declined to do so.

Amendments of 1966 modernized Rule 23 classaction procedures in several respects. See Geoffrey C.

Hazard, Jr., et al., An Historical Analysis of the

Binding Effect of Class Suits, 146 U.Pa.L.Rev. 1849,

1861–65 (1998). But the modifications said nothing to

authorize incentive awards, and federal courts, for

decades more, found no basis for creating a system of

special payments to reward representative plaintiffs.

The Court of Appeals accordingly errs in asserting

that federal courts began doing so “soon after Rule 23’s

inception.” Pet.App.20a. It gives the Sixth Circuit’s

decision in Thornton v. E. Tex. Motor Freight, 497 F.2d

416, 420 (6th Cir.1974), as an example. Pet.App.20a.

But Thornton was decided 36 years after Rule 23’s

inception in 1938, and roughly eight years after Rule

23’s 1966 revision. That said, the Sixth Circuit’s

opinion in Thornton neither mentioned nor approved

of incentive awards to representative plaintiffs.

Far from authorizing incentive awards since the

1970s, the Sixth Circuit has repeatedly questioned the

practice. In 2013, for example, the Sixth Circuit

invalidated a settlement that included the payment of

incentive awards, writing:

Our court has never approved the practice

of incentive payments to class representatives, though in fairness we have not

disapproved the practice either. See Vassalle

[v. Midland Funding LLC, 708 F.3d 747,] 756

[(6th Cir.2013)]. Thus, to the extent that

incentive awards are common, they are like

dandelions on an unmowed lawn—present

more by inattention than by design. And we

have expressed a “sensibl[e] fear that

incentive awards may lead named plaintiffs to

expect a bounty for bringing suit or to

compromise the interest of the class for

personal gain.”

In re Dry Max Pampers Litig., 724 F.3d 713, 722 (6th

Cir.2013)(quoting Hadix v. Johnson, 322 F.3d 895,

897 (6th Cir.2003)).

In 2016, the Sixth Circuit reiterated that ““[o]ur

court has never approved the practice of incentive

payments to class representatives.’” Shane Group v.

Blue Cross Blue Shield of Michigan, 825 F.3d 299, 311

(6th Cir.2016)(quoting Dry Max Pampers, 322 F.3d at

722)(quoting Hadix, 322 F.3d at 897). In fact, the

Sixth Circuit’s decisions have repeatedly expressed “a

‘sensibl[e] fear that incentive awards may lead named

plaintiffs to expect a bounty for bringing suit or to

compromise the interest of the class for personal

gain.’” Shane Group, 825 F.3d at 311 (quoting Hadix,

322 F.3d at 897). These decisions avoided “the

‘difficult issue’ of the propriety of incentive awards.”

Id. (quoting Hadix, 322 F.3d at 898). The Sixth Circuit

has never held that Greenough and Pettus permit

incentive awards.

Not until the late 1980s and early 1990s—decades

after the 1966 revisions to Rule 23—did federal

district courts’ nonprecedential orders and opinions

begin to include the unprecedented novelty of

incentive awards to representative plaintiffs.

“Beginning around 1990, however, awards for

representative plaintiffs began to find readier

acceptance,” and soon orders “approving incentive

awards proliferated,” so that “[b]y the turn of the

century, some considered these awards to be

‘routine.’”10 The Court of Appeals recognizes as much.

10 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards

to Class Action Plaintiffs: An Empirical Study, 53 U.C.L.A.

Pet.App.21a. But it offers no explanation for why it

took decades before federal courts started awarding

incentive awards that were suddenly needed to realize

Rule 23’s longstanding policies.

A few judges resisted the urge to disregard

Greenough and Pettus. In Gortat v. Capala Bros., 949

F.Supp.2d 374, 379 (E.D.N.Y.2013), Judge Glasser of

the Eastern District of New York concluded that

Greenough, although “decided more than 130 years

ago,” should still inform his decision denying an

incentive award. Gortat, 949 F.Supp.2d at 379.

The Court of Appeals in this case suggests that

incentive awards are good public policy because they

encourage the filing and settlement of class actions.

But it is for Congress, not the judiciary, to decide

whether class-action litigation needs any such special

incentives. By its terms, Rule 23 creates no new right

to any incentive award in addition to the attorneys’

fees and litigation expenses long authorized by

Greenough and Pettus. “Rule 23’s requirements must

be interpreted in keeping with Article III constraints,

and with the Rules Enabling Act, which instructs that

rules of procedure ‘shall not abridge, enlarge or modify

any substantive right.’” Amchem Products, Inc. v.

Windsor, 521 U.S. 591, 613 (1997)(quoting 28 U.S.C.

§2072(b)).

L.Rev. 1303, 1310-11 & n.21 (2006); see also Howard M. Downs,

Federal Class Actions: Diminished Protection for the Class and

the Case for Reform, 73 Neb.L.Rev. 646, 673 (1994)(“Cases in the

late 1970s and early 1980s abhorred such preferences, but recent

cases permit such practices more freely.”)(footnotes omitted);

Thomas E. Willging, Laural L. Hooper & Robert J. Niemic, An

Empirical Analysis of Rule 23 to Address the Rulemaking

Challenges, 71 N.Y.U. L.Rev. 74, 101 n.102 (1996).

Federal judges are no more entitled to create

incentive awards under Rule 23 than they are to

create new implied causes of action under any other

statute or rule. Financial incentives to sue, like

“private rights of action to enforce federal law[,] must

be created by Congress.” Alexander v. Sandoval, 532

U.S. 275, 286 (2001)(citing Touche Ross & Co. v.

Redington, 442 U.S. 560, 578 (1979)(available

remedies are limited to those “that Congress enacted

into law”)). Whether or not some federal judges think

that incentive awards may promote policies

underlying Rule 23, “Congress is ‘far more competent

than the Judiciary’ to weigh such policy

considerations.” Egbert v. Boule, 596 U.S. 482,

491(2022). It is for Congress to create incentive

awards, not the courts. Without clear congressional

intent to create a new cause of action, none exists,

“and courts may not create one, no matter how

desirable that might be as a policy matter, or how

compatible with the statute” or rule that it supposedly

promotes. Alexander, 532 U.S. 275, 286–87 (2001).

“‘Raising up causes of action where a statute has not

created them may be a proper function for commonlaw courts, but not for federal tribunals.’” Id. at 287

(citation omitted).

The Court of Appeals suggests that the rule of

Greenough and Pettus may be ignored for the further

reason that the payment sought by Vose was too

extravagant, amounting perhaps to a “salary.” But

Greenough and Pettus never suggested that smaller

request would be permitted. They laydown a brightline rule that payments to representative plaintiffs for

their own “personal services” in litigating such cases

are “decidedly objectionable,” “illegally made,”

Greenough, 105 U.S. at 537–38, and “unsupported by

reason or authority.” Pettus, 113 U.S. at 122.

Finally, although the Court of Appeals notes dictum

in China Agritech v. Resh, 584 U.S. 732, 747 n.7

(2018), to the effect that a “class representative might

receive a share of class recovery above and beyond her

individual claim,” that decision does not cite, let alone,

overrule the holdings of Greenough and Pettus. This

Court “does not normally overturn, or so dramatically

limit, earlier authority sub silentio.” Shalala v.

Illinois Council on Long Term Care, 529 U.S. 1, 18

(2000). “The notion that [it] created a new rule sub

silentio—and in a case where certiorari had been

granted on an entirely different question, and the

parties had neither briefed nor argued the ... issue—is

implausible.” Mickens v. Taylor, 535 U.S. 162, 172

(2002).

Other Circuits are making the same mistakes. It is

high time for this Court to take charge.

III.

THIS CASE PROVIDES AN EXCELLENT

VEHICLE

FOR

RESOLVING

EXTREMELY

IMPORTANT

ISSUE

AFFECTING MANY CLASS ACTIONS

This case presents an excellent vehicle for resolving

an entrenched conflict among the circuits on the

continuing effect of Greenough and Pettus, as the issue

was both squarely presented and decided below. The

Court of Appeals has sustained the three

Respondents’ $10,000 incentive awards, with no

further issues to be litigated.

The question presented is extraordinarily

important as incentive awards have come to affect so

many class-action settlements. Plaintiffs’ lawyers

doubtless find them an attractive means of obtaining,

and then manipulating, compliant representative

plaintiffs. The prospect of an incentive award gives

reluctant litigants a reason to act as nominal plaintiffs

in cases they otherwise would not bother to bring. And

the prospect of an incentive award in the thousands of

dollars gives named plaintiffs a powerful motive to

approve settlements and attorney’s fee awards that

may not be in other class members’ interest.

The Sixth Circuit has aptly warned that incentive

awards to representative plaintiffs provide “‘a

disincentive for the [named-plaintiff] class members to

care about the adequacy of relief afforded unnamed

class members[.]’” Shane Group, Inc. v. Blue Cross

Blue Shield, 825 F.3d 299, 311 (6th Cir.2016)(quoting

In re Dry Max Pampers Litig., 724 F.3d 713, 722 (6th

Cir.2013)(court’s emphasis)).

Yet despite their corrosive effect on named

plaintiffs’

ability

provide

unconflicted

representation, incentive awards affect increasing

numbers of class-action settlements. The time is ripe

for this Court’s review.

CONCLUSION

The circuits are in conflict on whether this Court’s

foundational common-fund class-action precedents

retain vitality in the context of class actions under

Rule 23. The question presented implicates this

Court’s sole prerogative to reconsider or overrule its

own decisions. It also implicates the integrity of classaction litigation, given incentive awards’ propensity to

undermine class representatives’ ability to adequately

represent absent class members’ interests.

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ERIC ALAN ISAACSON

Pro Se Counsel of Record

LAW OFFICE OF

ERIC ALAN ISAACSON

6580 Avenida Mirola

La Jolla, CA 92037-6231

Telephone: (858) 263-9581

ericalanisaacson@icloud.com

September 3, 2026

APPENDIX

APPENDIX A –

Opinion of the Federal Circuit

(March 20, 2026).....................................................1a

APPENDIX B –

Opinion of the District Court

(March 20, 2024)...................................................29a

APPENDIX C –

Judgment of the District Court

(March 20, 2024)...................................................84a

APPENDIX D –

Order of the Federal Circuit

Denying Petition for Rehearing

(June 5, 2026).......................................................91a

APPENDIX E –

Federal Rule of Civil Procedure 23.....................93a

APPENDIX A

[filed March 20, 2026]]

United States Court of Appeals

for the Federal Circuit

______________________

NATIONAL VETERANS LEGAL SERVICES

PROGRAM, NATIONAL CONSUMER LAW

CENTER, ALLIANCE FOR JUSTICE,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellee

ERIC ALAN ISAACSON,

Interested Party-Appellant

______________________

2024-1757

______________________

Appeal from the United States District Court for

the District of Columbia in No. 1:16-cv-00745-PLF,

Senior Judge Paul L. Friedman.

______________________

Decided: March 20, 2026

______________________

DEEPAK GUPTA, Gupta Wessler LLP, Washington,

DC, argued for plaintiffs-appellees. Also represented

by JONATHAN TAYLOR; WILLIAM H. NARWOLD, Motley

Rice LLC, Hartford, CT; MEGHAN OLIVER, Mt.

Pleasant, SC.

ALEXIS M. DANIEL, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for defendant-appellee. Also

represented by KIRK THOMAS MANHARDT, YAAKOV

ROTH, MARCUS S. SACKS.

ERIC ALAN ISAACSON, Law Office of Eric Alan

Isaacson, La Jolla, CA, argued pro se.

______________________

Before LOURIE and HUGHES, Circuit Judges, and

FREEMAN,1 District Judge.

FREEMAN, District Judge.

This appeal challenges the settlement of a

nationwide class action claiming that the federal

judiciary overcharged members of the public for access

to court records through the Public Access to Court

Electronic Records (“PACER”) system. The suit was

brought in the United States District Court for the

District of Columbia by three nonprofit organizations,

the National Veterans Legal Services Program, the

National Consumer Law Center, and the Alliance for

Justice (collectively, “Plaintiffs”), asserting that the

Government exceeded its statutory authority by

exacting PACER fees to fund not only the expense of

operating PACER itself but also other expenses

unrelated to the operation of PACER. After nearly

eight years of litigation, which encompassed

substantial motion practice, an interlocutory appeal,

and protracted negotiations, the case settled for

$125,000,000.

Honorable Beth Labson Freeman, District Judge, United

States District Court for the Northern District of California,

sitting by designation.

The district court approved the settlement, noting

that hundreds of thousands of PACER users will be

fully or substantially reimbursed for all PACER fees

they incurred during the eight-year class period. The

district court also approved awards of attorneys’ fees

and costs, as well as incentive awards2 to each of the

three nonprofit organizations that served as class

representatives.

Appellant-Objector Eric Isaacson (“Objector”),

proceeding pro se, appeals the judgment. He asserts

that the district court lacked subject matter

jurisdiction, abused its discretion in approving the

settlement and awarding attorneys’ fees, and acted

contrary to Supreme Court precedent in granting the

incentive awards. We affirm.

BACKGROUND

Collection of PACER fees is governed by a statutory

note to 28 U.S.C. §1913 titled “Court Fees for

Electronic Access to Information.” 28 U.S.C. §1913

note (2002) (the “§1913 Note”). The §1913 Note

permits the federal judiciary to “prescribe reasonable

fees ... for collection by the courts ... for access to

information available through automatic data

processing equipment.” Id. The §1913 Note was

amended by the E-Government Act of 2002, Pub.L.

No. 107-347, §205(e), 116 Stat. 2899, 2915, which

added language providing that the judiciary may

prescribe such reasonable fees “only to the extent

necessary.” Id. Since 2012, PACER users have been

charged $0.10 per page for downloading and printing

court records. J.A. 2863, 4218. Prior to this litigation,

PACER fees were used not only to fund the operation

2 The terms “incentive award” and “service award” are used

interchangeably in the parties’ briefs and applicable authorities.

of PACER, but also to fund six other categories of

expenses: (1) the Case Management and Electronic

Case Filing (“CM/ECF”) System; (2) Electronic

Bankruptcy Noticing (“EBN”); (3) the State of

Mississippi Study; (4) the Violent Crime Control Act

Notification System; (5) Web-Based Juror Services;

and (6) Courtroom Technology. J.A.5, 2865–87.

In April 2016, Plaintiffs filed this class action in the

United States District Court for the District of

Columbia. J.A.107–21. Plaintiffs claimed that they

had been charged PACER fees in excess of those

allowed under the §1913 Note, as amended by the EGovernment Act, because the fees “far exceed the cost

of providing the records” accessed through PACER.

J.A.107. They sought refund of the allegedly excessive

PACER fees they had paid, asserting that the district

court had subject matter jurisdiction under the Little

Tucker Act, 28 U.S.C. §1346(a). J.A.120–21. The Little

Tucker Act gives district courts original jurisdiction of

certain civil actions and claims against the United

States that do not exceed $10,000. 28 U.S.C.

§1346(a)(2). The Plaintiffs alleged that each

individual download of a public record through

PACER gave rise to a separate “illegal exaction” claim

falling within the Little Tucker Act’s jurisdictional

maximum. J.A.120. The case was vigorously litigated,

with the parties engaging in substantial motion

practice, including a motion to dismiss, class

certification, and cross-motions for summary

judgment. J.A. 506, 2433, 3443. The district court

certified a class of PACER users and certified one class

claim: “that the fees charged for accessing court

records through the PACER system are higher than

necessary to operate PACER and thus violate the EGovernment Act, entitling plaintiffs to monetary relief

from the excessive fees under the Little Tucker Act.”

J.A. 2433.

In our prior opinion addressing the parties’

interlocutory cross-appeals of the district court’s

summary judgment order, we affirmed the district

court’s determination that the certified class claim fell

within the district court’s subject matter jurisdiction

under the Little Tucker Act. See Nat’l Veterans Legal

Servs. Program v. United States, 968 F.3d 1340, 1346–

49 (Fed.Cir.2020). We also affirmed the district court’s

statutory interpretation of the §1913 Note, holding

that the “§1913 Note limits PACER fees to the amount

needed to cover expenses incurred in services

providing public access to federal court electronic

docketing information.” Id. at 1357. Finally, we agreed

with the district court that the Government had been

using PACER fees to fund categories of expenses not

authorized by the §1913 Note. See id.

We remanded the case to the district court in

August 2020. See id. at 1359. After nearly two years

of negotiations, the parties reached the class action

settlement at issue here (“Settlement Agreement”).

J.A. 3977, 3993, 3997.

The Settlement Agreement provides that the

United States will create a common fund of

$125,000,000 to settle the claims of class members,

defined as “all persons or entities who paid PACER

fees between April 21, 2010, and May 31, 2018,” the

date the judiciary stopped using PACER fees to fund

prohibited expenses (the “class period”). J.A. 12, 3977–

79, 3993.

The Settlement Agreement requires that no less

than 80% of the $125,000,000 common fund, or

$100,000,000, be distributed to the class. J.A.3982.

Class members will not be required to submit claim

forms to receive payments. J.A.3981. The claims

administrator will use information provided by the

federal judiciary, which maintains records of PACER

registrants and fees paid, to identify class members

and

distribute

settlement

funds.

Id.

The

administrator will disburse to each class member a

minimum payment equal to the lesser of $350 or the

total amount of PACER fees the class member paid

during the class period. J.A.3982. The administrator

will disburse any remaining settlement funds to class

members who paid more than $350 in PACER fees pro

rata based on the total amount of PACER fees class

members paid in excess of $350 during the class

period. J.A.3982–83. Any unclaimed settlement funds

will be distributed equally among class members who

paid more than $350 in PACER fees during the class

period and collected their payment from the first

distribution, with the caveat that class members may

not recover more than the total amount of PACER fees

they paid during the class period. J.A.3983–84. The

Settlement Agreement provides that the total amount

attorneys’

fees,

incentive

awards,

and

administrative costs shall not exceed 20% of the

$125,000,000 settlement fund, or $25,000,000, and

that incentive awards shall not exceed $10,000 per

class representative. J.A. 3986.

The district court granted preliminary approval of

the settlement on May 8, 2023, after which notice was

provided to more than 500,000 PACER account

holders through email, postcards, a press release, and

a banking newsletter. J.A. 4078, 4287–90. There were

thirty-three opt-outs and five objections, only two of

which were timely, including that of Objector. J.A. 11,

4292. The district court held a fairness hearing at

which Objector appeared and presented oral

argument. J.A.1, 17–18. The district court thereafter

issued a thorough and carefully reasoned order

finding the settlement to be fair, reasonable, and

adequate under the relevant factors identified in Rule

23(e)(2) of the Federal Rules of Civil Procedure. Nat’l

Veterans Legal Servs. Program v. United States, 724

F.Supp.3d 1 (D.D.C.2024)(“Final Approval Order”).

The district court also awarded attorneys’ fees in the

amount of $23,863,345.02, attorney expenses in the

amount of $29,654.98, and settlement administration

costs in the amount of $1,077,000. Id. at 30–31.

Finally, the district court approved incentive awards

in the amount of $10,000 for each of the three class

representatives. Id. at 30.

A substantial portion of the Final Approval Order

was devoted to addressing arguments raised by

Objector. See, e.g., id. at 17–21, 23–24, 26–27, 29–30.

Objector argued that class members whose aggregate

claims exceeded $10,000 fell outside the subject

matter jurisdiction of the district court under the

Little Tucker Act; too much of the common fund was

allocated pro rata, favoring large-scale PACER users

over small-scale PACER users; the attorneys’ fees

award should have been limited to counsel’s lodestar;

and incentive awards to class representatives were

unlawful under Supreme Court authority. The district

court rejected each of those arguments. Id.

Objector timely filed this appeal. This Court has

jurisdiction pursuant to 28 U.S.C. §1295(a)(2).

STANDARD OF REVIEW

“Whether a district court has subject matter

jurisdiction over an action is a question of law that we

review de novo.” Nat’l Veterans Legal Servs. Program,

968 F.3d at 1347 (quoting De Archibold v. United

States, 499 F.3d 1310, 1313 (Fed.Cir.2007)). We apply

the law of the regional circuit to substantive legal

issues relating to general areas of law that are not

assigned exclusively to the Federal Circuit. United

States v. One (1) Cadillac Coupe De Ville, 833 F.2d

994, 997–98 (Fed.Cir.1987). The approval of a class

action settlement and award of reasonable attorneys’

fees and service awards are reviewed for abuse of

discretion. Cobell v. Salazar, 679 F.3d 909, 924 (D.C.

Cir.2012); Haggart v. Woodley, 809 F.3d 1336, 1346,

1354 (Fed.Cir.2016).

DISCUSSION

We first consider whether the district court had

subject matter jurisdiction under the Little Tucker

Act to approve the settlement. Previously, in

connection with the interlocutory cross-appeals of the

district court’s summary judgment order, we found

that the complaint stated a claim over which the

district court had Little Tucker Act jurisdiction. Nat’l

Veterans Legal Servs. Program, 968 F.3d at 1346–49.

Now, subject matter jurisdiction is challenged on

different grounds. We find that the district court

correctly determined that it had Little Tucker Act

jurisdiction to approve the settlement.

With exceptions not relevant here, the Little Tucker

Act grants district courts original jurisdiction,

concurrent with the United States Court of Federal

Claims, over any “civil action or claim against the

United States, not exceeding $10,000 in amount,

founded either upon the Constitution, or any Act of

Congress, or any regulation of an executive

department, or upon any express or implied contract

with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.”

28 U.S.C. §1346(a)(2).

Objector argues that the district court lacked

jurisdiction under the Little Tucker Act to approve the

settlement. He contends that some class members’

total recovery exceeded $10,000, and district courts

lose Little Tucker Act jurisdiction when “the recovery

sought on behalf of any plaintiff or class member

grows to exceed $10,000.” Appellant’s Br. 18. While

Objector is correct that district courts can lose

jurisdiction over the course of a case if a claim grows

to exceed $10,000, here, the proper understanding of

what constitutes a claim under the Little Tucker Act

leads to the clear conclusion that no single claim

exceeded $10,000.

The Little Tucker Act grants federal district courts

jurisdiction to hear claims that do not exceed $10,000.

28 U.S.C. §1346(a)(2). Where the members of a class

are not suing with respect to a common interest, their

claims are not aggregated for purposes of evaluating

Little Tucker Act jurisdiction. See Chula Vista City

Sch. Dist. v. Bennett, 824 F.2d 1573, 1579 (Fed.Cir.

1987). Instead, the “claim of each member of the class

must be examined separately to determine whether it

meets the jurisdictional requirement.” Id. Thus, the

relevant inquiry is whether any class member had a

single claim that exceeded the $10,000 limit. We

conclude that none did.

A pair of cases involving airlines helps clarify the

issue. See Am. Airlines v. Austin, 778 F.Supp. 72, 74

(D.D.C. 1991); Alaska Airlines, Inc. v. Austin, 801

F.Supp. 760, 762 (D.D.C. 1992), aff’d on other grounds,

Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (Fed.Cir.

1993). In both cases, airlines sued the government

seeking withheld payments for tickets the government

10a

had purchased. And in both cases, each alleged

overcharge for an airline ticket was treated as a

separate claim for purposes of Little Tucker Act

jurisdiction, although the sum of relief sought far

exceeded $10,000.

In American Airlines, the plaintiff airlines sued the

General Services Administration (“GSA”) based on its

withheld offsets of approximately $350,000 for unused

tickets. 778 F.Supp. at 74, 76. The district court

determined that it had Little Tucker Act jurisdiction

because each individual ticket represented a single

claim that did not exceed $10,000. Id. at 76. The court

explained that “[t]he government cannot escape this

Court’s jurisdiction by taking a lump sum offset that

totals over $10,000 and then alleging that the claims

should be aggregated.” Id.

In Alaska Airlines, the plaintiff airlines sought from

GSA the return of withheld funds amounting to $100

million. 801 F.Supp. at 762. The government

contested Little Tucker Act jurisdiction. Id. In its

jurisdictional analysis, the district court characterized

the $100 million as the “accumulation of disputes over

alleged overcharges on thousands of individual

tickets,” and likewise found that each claim was based

on a single ticket for less than $10,000. Id.

Accordingly, the district court found that it had Little

Tucker Act jurisdiction.3

3 GSA did not directly challenge the district court’s definition

of “claim” on appeal and instead argued that the district court

lacked authority to award “money damages.” See Alaska Airlines,

8 F.3d at 796–97. We rejected GSA’s argument, holding that “the

airlines received money to which they were entitled under the

statute, not ‘money damages.’” Id. at 797. We also noted that “the

district court had concurrent jurisdiction with the Court of

Federal Claims over the contracts.” Id.

11a

In the airlines cases, each individual ticket gave

rise to a separate claim for purposes of Little Tucker

Act jurisdiction. So too here, each individual download

of a public record for which a class member was

charged gives rise to a separate claim. A class

member’s total recovery of more than $10,000 did not

divest the district court of Little Tucker Action

jurisdiction, because each PACER transaction was

below the jurisdictional limit.

This interpretation of the Little Tucker Act is

consistent with United States v. Louisville &

Nashville Railroad Co., 221 F.2d 698 (6th Cir.1955).

There, the Sixth Circuit considered whether the

district court had Little Tucker Act jurisdiction over a

railroad’s claims against the government based on

seventy-four separate bills of lading. Id. at 701. The

Sixth Circuit determined that each bill of lading gave

rise to a separate claim, and each claim was for less

than the $10,000 jurisdictional limit. Id. at 702. As a

consequence, the Sixth Circuit found that the district

court had subject matter jurisdiction, although the

claims in the aggregate exceeded $10,000. Id. at 702–

03. The bills of lading in Louisville, like the individual

plane tickets in the airlines cases, are analogous to the

claims arising from the PACER transactions here.

According to Objector, American Airlines, Alaska

Airlines, and Louisville are distinguishable because

those cases were based on contract claims, while the

present class action is not. Appellant’s Br. 29. That

argument is not well taken. As an initial matter, the

relief ordered in Alaska Airlines was based not on the

individual ticket contracts, but on whether funds were

illegally withheld under the relevant statute. Alaska

Airlines, Inc. v. Austin, 801 F.Supp.3d at 763; accord

Alaska Airlines, Inc. v. Johnson, 8 F.3d at 798.

12a

Moreover, whether the claims in the cited cases were

based in contract was not determinative. Both

contract claims and illegal exaction claims can give

rise to Little Tucker Act jurisdiction. See 28 U.S.C.

§1346(a)(2). In American Airlines, Alaska Airlines,

and Louisville, the existence of subject matter

jurisdiction turned on whether the at-issue

transactions gave rise to separate claims, such that

their aggregation did not defeat Little Tucker Act

jurisdiction.

Objector asserts that this case is more akin to two

cases in which Little Tucker Act jurisdiction was lost

with respect to back pay claims that were under

$10,000 when filed but later accrued to more than

$10,000. See Appellant’s Br. 24 (citing Simanonok v.

Simanonok, 918 F.2d 947, 950 (Fed.Cir.1990); Smith

v. Orr, 855 F.2d 1544, 1553 (Fed.Cir.1988)). Objector’s

reliance on those cases is misplaced. As both opinions

recognize, the “claim” in a back pay case is expressly

defined as “the total amount of back pay the plaintiff

stands ultimately to recover in the suit and is not the

amount of back pay accrued at the time the claim is

filed.” Simanonok, 918 F.2d at 950–51 (quoting Smith,

855 F.2d at 1553). Thus, once a back pay claim grows

to exceed $10,000, Little Tucker Act jurisdiction is

lost. Here, by contrast, each individual PACER

transaction gave rise to a separate claim. So unlike in

the back pay cases, no claim here grew (or had the

potential to grow) to exceed $10,000, even if an

individual class member’s recovery in the aggregate

might have exceeded $10,000.

Objector also contends—for the first time on reply—

that Keene Corp. v. United States, 508 U.S. 200 (1993),

is “fatal” to Appellees’ jurisdictional argument. See

Appellant’s Reply Br. 6. He asserts that Keene stands

13a

for the proposition that the term “claim” has an

expansive meaning under the Tucker Act, 28 U.S.C.

§1491(a)(1). Appellant’s Reply Br. 5–10. Because the

Little Tucker Act is part of the same statutory scheme,

he argues the same expansive definition of claim

should apply here. Appellant’s Reply Br. 10.

Objector’s argument does not withstand even

cursory scrutiny. Keene interpreted a statute not at

issue in this case, 28 U.S.C. §1500, which restricts the

jurisdiction of the Court of Federal Claims when a

related action is pending elsewhere. Keene, 508 U.S.

at 202. The statute was enacted “to put an end to

parallel litigation seeking duplicative relief against

the United States and its agents.” United States v.

Tohono O’Odham Nation, 563 U.S. 307, 318 (2011)

(Sotomayor, J., concurring in the judgment). In Keene,

the Supreme Court interpreted the word “claim” in the

context of evaluating when “two suits are for or in

respect to the same claim.” Tohono O’Odham, 563 U.S.

at 311 (discussing Keene). The Keene Court held that,

under §1500, the jurisdictional analysis turns on

whether the two claims are “based on substantially

the same operative facts[,] ... at least if there [is] some

overlap in the relief requested.” Keene, 508 U.S. at

212. The Supreme Court’s discussion of the meaning

of the term “claim” in determining whether two

lawsuits are duplicative does not illuminate the

jurisdictional issue here and simply has no bearing on

whether a “claim” is an individual PACER transaction

or an aggregate of all of a class member’s PACER

transactions for purposes of Little Tucker Act

jurisdiction.

In sum, we hold that each individual PACER

transaction gave rise to a separate claim, and since no

14a

single claim exceeded $10,000, the district court

properly exercised Little Tucker Act jurisdiction.

Turning to the merits, Objector urges that the

district court erred in three respects. First, he argues

that the district court abused its discretion in

approving the Settlement as fair, reasonable, and

adequate. Second, he asserts that the district court

abused its discretion in awarding class counsel

attorneys’ fees of $23,863,345.02. Third, he contends

that the district court’s approval of incentive awards

to the class representatives was unlawful.

Objector asserts that the district court abused its

discretion when it approved the Settlement

Agreement as fair, reasonable, and adequate. We

disagree.

As relevant here, the Settlement Agreement

provides that each class member will be reimbursed

for up to $350 in class period PACER fees. J.A. 3982.

The remainder of the settlement fund is to be

distributed pro rata based on the amount of PACER

fees paid in excess of $350 during the class period. J.A.

3982–83. Objector argues that this distribution plan

will provide a windfall for class members with the

largest total class period PACER fees, because those

class members are likely to be large law firms that

have already been reimbursed for their PACER

expenses by their clients. Appellant’s Br. 40–46.

Rule 23 of the Federal Rules of Civil Procedure

provides that a court may approve a class action

settlement “only after a hearing and only on finding

that it is fair, reasonable, and adequate.” Fed. R. Civ.

15a

P. 23(e)(2). Nothing in the district court’s order

suggests that it abused its discretion in approving the

Settlement Agreement. To the contrary, the order,

which followed a hearing on the fairness of the

Settlement Agreement, reflects a careful analysis of

Rule 23’s enumerated factors in light of the objections.

After consideration of those factors, the district court

concluded that the benefits of the Settlement

Agreement were “substantial” while the likely

outcome for the class if the case proceeded to trial was

“uncertain.” Final Approval Order, 724 F.Supp.3d at

21.

The thrust of Objector’s argument is that the

Settlement Agreement “abandoned” the interests of

“the little user” in favor of large-scale users.

Appellant’s Br. 44. Objector, a solo practitioner with

class period PACER fees of $3,823.50, appears to

count himself among the little users. Appellant’s Br.

21. He speculates that some class members have class

period PACER fees that total “tens and even hundreds

of thousands of dollars,” and protests what he

perceives to be preferential treatment for those class

members. Id.

The district court followed the routine practice of

approving settlements that provide pro rata

distributions of common funds where the settlement

fund is insufficient to fully reimburse all class

members. Final Approval Order, 724 F.Supp.3d at 18–

21. The nature of a settlement is compromise, and the

district court acknowledged that “[n]o settlement is

perfect.” Id. at 19. The district court resolved the

tension between the competing interests of smallscale users and large-scale users by fully reimbursing

all PACER fees paid up to $350. Id. at 18. The $350

threshold ensured that “the vast majority of class

16a

members [would] receive a full refund.” JA. 4232. That

the district court drew the line below the level that

would maximize Objector’s personal recovery is not

sufficient to demonstrate an abuse of discretion. The

district court properly found that the $350 threshold

was a fair and reasonable compromise. Final Approval

Order, 724 F.Supp.3d at 18–20.

The district court also expressly considered

Objector’s argument that many of the class members

are large law firms, which likely would have already

been reimbursed for their class period PACER fees. Id.

at 18–20. Noting that this contention “makes some

sense in the abstract,” the district court concluded

that large law firms’ claims are just as valid as all

other class members’ claims and the law firms were

likely the only plaintiffs that could have brought those

claims because they—not their clients—paid the fees.

Id. at 20. Moreover, the district court reasoned that

any potential disputes between those firms and their

clients regarding the class period PACER fees are best

addressed outside the settlement of this case. Id. We

find this conclusion reasonable.

Thus, we conclude that the district court acted well

within its discretion in approving the settlement.

Next, Objector contends that the district court

abused its discretion in granting attorneys’ fees of

$23,863,345.02. He argues that the district court

merely “rubber-stamped” the requested attorneys’

fees. Appellant’s Br. 47–67. We find that the district

court applied the correct legal standard and did not

abuse its discretion.

Rule 23 provides that a “court may award

reasonable attorney’s fees and nontaxable costs that

17a

are authorized by law or by the parties’ agreement.”

Fed. R. Civ. P. 23(h). There are two approaches that

may be used to calculate attorneys’ fees in common

fund cases: the percentage-of-the-fund method and

the lodestar method. See, e.g., Health Republic Ins. Co.

v. United States, 58 F.4th 1365, 1371 (Fed.Cir.2023).

The district court recognized that it must engage in

“independent scrutiny of an award’s reasonableness,”

and correctly explained that district courts have

discretion to use either the percentage-of-the-fund

method or the lodestar method in applying that

scrutiny. Final Approval Order, 724 F.Supp.3d at 21–

23. “[B]ecause the percentage method promotes

efficiency and ensures that class counsel is

compensated primarily based on the result achieved,”

the district court opted to use the percentage method

with a lodestar cross-check to “confirm that the fee

awarded properly accounts for the effort [c]lass

[c]ounsel expended.” Id. at 23–24. This approach was

entirely consistent with governing law. See Health

Republic, 58 F.4th at 1371; Haggart, 809 F.3d at 1355.

Objector’s argument to the contrary is unpersuasive

because we have recognized that, in common fund

cases, “courts may determine the amount of attorney

fees to be awarded from the fund by employing a

percentage method.” Haggart, 809 F.3d at 1355.

Moreover, the authority on which Objector relies is

inapplicable. Perdue v. Kenney A. ex rel. Winn, 559

U.S. 542, 546 (2010), interpreted a fee-shifting

statute, which arose in an entirely distinct context

from the award of attorneys’ fees in common fund

cases. See Haggart, 809 F.3d at 1355.

Nothing in the record supports Objector’s

contention that the district court presumed the

requested attorneys’ fees of 19.1% were reasonable. To

18a

the contrary, the district court tested the fee request

against each of the seven factors set forth in Health

Republic: (1) the quality of counsel; (2) the complexity

and duration of the litigation; (3) the risk of

nonrecovery; (4) the fee that likely would have been

negotiated between private parties in similar cases;

(5) any class members’ objections to the settlement

terms or fees requested by class counsel; (6) the

percentage applied in other class actions; and (7) the

size of the award. Final Approval Order, 724

F.Supp.3d at 24–28; see also Health Republic, 58 F.4th

at 1372 (citing Moore v. United States, 63 Fed. Cl. 781,

787 (2005)). For instance, the district court found that

the requested percentage of the common fund was

consistent with percentages awarded in comparable

complex class actions. Final Approval Order, 724

F.Supp.3d at 27–28. The district court also found that

class counsel was exceptionally well qualified to

handle this “reasonably complex” case where there

“was a significant risk of nonrecovery” until “the

moment” the settlement was reached. Id. at 24–25.

The district court noted that the fee request was below

the “typical 33% contingency fee.” Id. at 25–26.

The district court went on to conduct a lodestar

crosscheck of the requested attorneys’ fees, which

resulted in a multiplier of 3.96. Id. at 28–30. A

lodestar cross-check is “an approach taken in many

judicial decisions, under which the reasonableness of

a potential percentage-of-the- fund fee is checked by

‘dividing the proposed fee award by the lodestar

calculation, resulting in a lodestar multi-plier.’”4

4 The lodestar calculation is the product of the number of

hours and the rate. Haggart, 809 F.3d at 1355.

19a

Health Republic, 58 F.4th at 1372 (quoting In re AT &

T Corp., 455 F.3d 160, 164 (3d Cir.2006)). Contrary to

Objector’s assertion that an “unenhanced lodestar” is

presumptively sufficient, Appellant’s Br. 51–52, the

normal range for a multiplier in class actions is one to

four. See Health Republic, 58 F.4th at 1375. In Health

Republic, which Objector acknowledges is the guiding

precedent, see Appellant’s Br. 48–49, we found that

the Court of Federal Claims abused its discretion in

approving a $185 million fee that was eighteen to

nineteen times the lodestar without conducting a

lodestar cross-check. 58 F.4th at 1372–73. Here, by

contrast, the district court acknowledged that the

multiplier in this case was at the high end of the

generally accepted one-to-four range. Taking into

account the facts of this case, the district court found

the multiplier to be warranted given the risks class

counsel took in agreeing to litigate this case and the

exceptional service provided to the class for more than

seven years. Final Approval Order, 724 F.Supp.3d at

29–30.

Objector’s further contention that class counsel

failed to submit sufficient documentation to support a

meaningful lodestar cross-check was based in part on

a concern expressed by the Government. Appellant’s

Br. 63. What Objector omits from his argument,

however, is that the Government advised the district

court that any concern was “remedied” by additional

documentation that was supplied by the Plaintiffs.

J.A. 4785–86. The district court also explained that a

lodestar cross-check is just that—a cross-check—and

appropriately declined to engage in “bean-counting.”

Final Approval Order, 724 F.Supp.3d at 29–30 (citing

In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306–07

(3d Cir.2005)).

20a

At bottom, Objector’s position is that an

unenhanced lodestar is all that should be awarded,

and nothing more. But that is not the law. Health

Republic, 58 F.4th at 1375–76; Haggart, 809 F.3d at

1355. We conclude that nothing in the record supports

Objector’s assertion that the district court applied the

wrong legal standard or abused its discretion.

The district court approved incentive awards of

$10,000 for each of the three class representatives.

Final Approval Order, 724 F.Supp.3d at 30. Objector

contends that the district court erred by “paying” the

class representatives incentive awards. Appellant’s

Br. 67–71. He argues that such awards are unlawful

under Trustees v. Greenough, 105 U.S. 527 (1881), and

Central Railroad & Banking Co. v. Pettus, 113 U.S.

116 (1885). We join the clear majority of our sister

circuits in holding that district courts are permitted to

approve incentive awards, and we find that the

district court did not abuse its discretion in approving

the incentive awards here.

Rule 23 provides that a district court may approve

a settlement agreement “only on finding that it is fair,

reasonable, and adequate” after considering whether

it “treats class members equitably relative to each

other.” Fed.R.Civ.P. 23(e)(2)(D). While Rule 23 is

silent with respect to incentive awards, courts have

uniformly approved such awards on the basis of

implementing Rule 23’s goals and mandates. Indeed,

soon after Rule 23’s inception, courts began approving

incentive awards for class representatives. See, e.g.,

Thornton v. E. Tex. Motor Freight, 497 F.2d 416, 420

(6th Cir.1974).

21a

“Beginning around 1990,” incentive awards “began

to find readier acceptance.” Theodore Eisenberg &

Geoffrey P. Miller, Incentive Awards to Class Action

Plaintiffs: An Empirical Study, 53 UCLA L. REV.

1303, 1310–11 (2006). By the early 2000s, they were

commonplace. Id. at 1311. Thereafter, circuit courts’

acceptance of incentive awards in class actions was

universal until 2020, when the Eleventh Circuit broke

away by holding that incentive awards are unlawful

per se under Greenough and Pettus. See Johnson v.

NPAS Sols., LLC, 975 F.3d 1244, 1260 (11th

Cir.2020), reh’g denied, 43 F.4th 1138 (11th Cir.2022).

The decision acknowledged that incentive awards are

commonplace but dismissed the ubiquitous practice as

“a product of inertia and inattention, not adherence to

law.” Id. at 1259. Contrary to the Eleventh Circuit’s

decision in Johnson, an overwhelming majority of our

sister circuits have concluded that Greenough and

Pettus do not preclude district courts from granting

incentive awards. See Moses v. N.Y. Times Co., 79

F.4th 235, 253 (2d Cir.2023)(collecting cases).5

5 Since Johnson, every circuit to have expressly considered the

question of whether Greenough and Pettus preclude incentive

awards has rejected the Eleventh Circuit’s interpretation of

those cases and found that district courts are permitted to

approve incentive awards. See Scott v. Dart, 99 F.4th 1076, 1088

(7th Cir.2024); Moses, 79 F.4th at 256; Murray v. Grocery

Delivery E-Services USA Inc., 55 F.4th 340, 353 (1st Cir.2022); In

re Apple Inc. Device Performance Litig., 50 F.4th 769, 786–87 (9th

Cir.2022). Every other circuit—with the exception of the

Eleventh—still accepts the long-standing practice of permitting

incentive awards. See Caligiuri v. Symantec Corp., 855 F.3d 860,

867 (8th Cir.2017); Jones v. Singing River Health Servs. Found.,

865 F.3d 285, 303 (5th Cir.2017)(vacating a class-action

settlement with an incentive award on other grounds and

affirming the same settlement after the district court provided

further explanation in 742 F.App’x 846 (5th Cir.2018)); Pelzer v.

Vassalle, 655 F. App’x 352, 361 (6th Cir.2016) (nonprecedential);

22a

Objector urges us to join the Eleventh Circuit and

find that incentive awards are per se unlawful.6 We

decline to do so. Joining our sister circuits, we hold

that Greenough and Pettus do not compel a contrary

result.

In 1881, the Supreme Court in Greenough

overturned an award for “personal services and

private expenses” given to a railroad bondholder, who

sued on behalf of himself and other bondholders.

Greenough, 105 U.S. at 537. The plaintiff, who sued

the Florida Railroad Company for the trustees’ alleged

mismanagement of the railroad’s bonds, litigated the

case “with great vigor and at much expense.” Id. at

529. The district court awarded the bondholder’s

attorneys’ fees, litigation expenses, personal fees for

litigation-related travel, and a ten-year allowance for

“personal services.” Id. at 529–30.

Tennille v. W. Union Co., 785 F.3d 422, 434–35 (10th Cir.2015);

Berry v. Schulman, 807 F.3d 600, 613–14 (4th Cir.2015); Cobell,

679 F.3d at 922–23; Sullivan v. DB Invs., Inc., 667 F.3d 273, 333

n.65 (3d Cir.2011)(en banc).

6 Objector also directs us to Fikes Wholesale v. HSBC Bank

USA, N.A., 62 F.4th 704 (2d Cir.2023). There, citing Greenough

and Johnson, the Second Circuit explained that “[s]ervice awards

are likely impermissible under Supreme Court precedent,” but

nonetheless concluded that “practice and usage seem to have

superseded Greenough” and followed Second Circuit cases

approving of such awards. Id. at 721. Later that year, in Moses,

the Second Circuit again considered the issue of whether

incentive awards are permissible and “decline[d] to depart from

Rule 23’s mandate, which permits fair and appropriate incentive

awards.” 79 F.4th at 254–55. The Moses court further held that

“neither Greenough nor Pettus prohibits incentive awards in

class actions.” Id. at 256. Accordingly, we find Objector’s reliance

on Fikes to be misplaced.

23a

The Supreme Court affirmed the award of

attorneys’ fees and litigation expenses. Id. at 537.

However, the award for personal services and private

expenses was struck down because it was held to be

analogous to “a salary.” Id. at 537–38. The Court

expressed concern that such an allowance “would

present too great a temptation to parties to

intermeddle in the management of valuable property

or funds.” Id. at 538. For context, we note that the tenyear allowance of $2,500 for “personal services” and

award of $15,003.35 for “personal expenditures,” id. at

530, would be equivalent to more than $1.4 million

today, Scott v. Dart, 99 F.4th 1076, 1087 (7th Cir.

2024).

Four years later, in Pettus, the Supreme Court

confirmed that attorneys may recover expenses for

their work on behalf of clients. 113 U.S. at 127–28.

Pettus involved the “outgrowth of certain litigation in

the courts of Alabama,” relating to “railroad property.”

Id. at 117–18. Railroad creditors successfully sued a

railroad company, requesting that their debts be

satisfied. Id. at 118–19. In holding that the attorneys

were entitled to reasonable compensation for their

services, the Court reiterated Greenough’s conclusion

that a leading plaintiff’s claim for compensation for

personal services and private expenses is unlawful. Id.

at 122–23.

135 years after Pettus, the Eleventh Circuit held

that incentive awards in modern class actions are

categorically unlawful under Greenough and Pettus

because they compensate class representatives.

Johnson, 975 F.3d at 1258.

Greenough and Pettus are recognized for

authorizing attorneys’ fees in a common fund case. See

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).

24a

And they disallow salaried class representatives. As

the decades since have borne out, however, Greenough

and Pettus do not illuminate the lawfulness of

incentive awards in the context of modern class

actions, which represent “a significant historical

development.” Scott, 99 F.4th at 1085. The lawsuits at

issue in Greenough and Pettus bear little resemblance

to today’s class actions. Unlike in the nineteenth

century when courts were “confined to the application

of federal general common law and equitable

principles,” Moses, 79 F.4th at 254, there is no “federal

general common law” today, Erie R. Co. v. Tompkins,

304 U.S. 64, 78 (1938). The prohibited salary-like

payments to bondholder-plaintiffs in lawsuits in

equity are nothing like the types and amounts of

incentive awards in modern class actions. Here, for

example, the relatively modest award of $10,000 for

each class representative out of a $125,000,000

settlement for participation over eight years of

litigation is a far cry from the “salary” prohibited in

Greenough, which would exceed $1.4 million in today’s

dollars. Even the Eleventh Circuit found that today’s

incentive awards in class actions are only “roughly

analogous to a salary” when it precluded such awards.

Johnson, 975 F.3d at 1257.

Incentive awards are not like salaries. They are

token amounts to encourage the participation of

representative plaintiffs, who “invest in the case more

heavily than their unnamed counterparts.” Scott, 99

F.4th at 1086 (citing Moses, 79 F.4th at 253). A

“named plaintiff is an essential ingredient of any class

action” and incentive awards may be appropriate

where they are “necessary to induce an individual” to

take on this important role. Cook v. Niedert, 142 F.3d

1004, 1016 (7th Cir.1998). Representative plaintiffs

step up, often at significant personal and financial

25a

cost, “to vindicate the rights of others.” In re Dun &

Bradstreet Credit Servs. Customer Litig., 130 F.R.D.

366, 374 (S.D.Ohio1990). Courts recognize that class

representatives take on a “meaningful burden,”

including facing reputational risks and expending

time and effort. Roberts v. Texaco, Inc., 979 F.Supp.

185, 202 (S.D.N.Y.1997). Therefore, it has been

established for decades that modest incentive awards

are sometimes “appropriate to recognize the efforts of

the representative plaintiffs to obtain recovery for the

class.” In re Domestic Air Transp. Antitrust Litig., 148

F.R.D. 297, 358 (N.D.Ga. 1993). Because class

representatives take on this extra burden, incentive

awards are also in line with Rule 23’s requirement

that class members be treated equitably relative to

each other. Fed.R.Civ.P. 23(e)(2)(D); see also Murray,

55 F.4th at 353.

We disagree with the characterization of incentive

awards in Johnson as improper inducement to

participate in the suit, like a “bounty.” 975 F.3d at

1258. The awards here at issue are so modest that the

amount cannot reasonably be likened to a “bounty.”

Although incentive awards are widely accepted as a

mechanism for recognizing named plaintiffs, Rule 23

protects against awarding unwarranted or excessive

amounts. District courts have a duty to approve

settlement agreements only where they are fair,

reasonable, and adequate. Courts are attentive to the

possibility that incentive awards may be “‘unfair’ to

other class members.” Smith v. Tower Loan of Miss.,

216 F.R.D. 338, 368 (S.D.Miss.2003). For example, the

Ninth Circuit has instructed district courts to “be

vigilant in scrutinizing all incentive awards to

determine whether they destroy the adequacy of the

class representatives.” Radcliffe v. Experian Info.

26a

Sols. Inc., 715 F.3d 1157, 1164 (9th Cir.2013).

Incentive awards are prohibited where they create a

conflict between the class representatives and the rest

of the class or otherwise undermine the equitable

treatment of class members relative to each other. See,

e.g., In re Dry Max Pampers Litig., 724 F.3d 713, 722

(6th Cir.2013). Rule 23’s safeguards address many of

the concerns animating the Supreme Court’s

prohibition against salary-like payments. In 1881, the

Supreme Court lacked these tools, but under Rule 23

protection of the other plaintiffs’ rights can be

assured.

With the exception of the Eleventh Circuit, the

uniform acceptance of incentive awards has been met

with silence as to Greenough’s impact on their

lawfulness. Moses, 79 F.4th at 255. The Supreme

Court has never suggested that incentive awards in

the context of modern-day class actions are unlawful.

To the contrary, the Supreme Court recently noted

that a “class representative might receive a share of

class recovery above and beyond her individual claim.”

China Agritech v. Resh, 584 U.S. 732, 747 n.7 (2018).

Objector urges us to disregard China Agritech,

arguing that the “Supreme Court does not overrule its

own decisions so nonchalantly.” Appellant’s Reply Br.

35. Perhaps not, but the Supreme Court appears to

have regarded class action incentive awards as

distinct from the salary-like payments prohibited in

Greenough. Greenough and Pettus did not speak to

Rule 23 class actions, which would not exist for

another eight decades. Moreover, Objector cites no

case prior to Johnson in which a court precluded

incentive awards based on the holding in Greenough,

and we are aware of none. See Scott, 99 F.4th at 1085.

27a

Likewise, Congress and the Advisory Committee on

Civil Rules have not revised the Rules to include a

blanket ban.7 Moses, 79 F.4th at 255. Instead, in the

Class Action Fairness Act of 2005, Congress noted

that class members are “sometimes harmed” where

“unjustified awards are made to certain plaintiffs at

the expense of other class members,” suggesting that

reasonable awards are allowed. Pub. L. No. 109-2, §2,

119 Stat. 4 (2005) (emphasis added).

We conclude that a per se exclusion of incentive

awards is not mandated by Greenough and Pettus

because the modest incentive awards in today’s class

actions bear no resemblance to the prohibited salary

in Greenough. And, when unjustified incentive awards

are sought, it is well within the purview of a district

court to reject such awards under the review and

approval mandates of Rule 23. Case-by-case

evaluation of an incentive award is an integral part of

a district court’s scrutiny of a proposed class action

settlement. Thus, it cannot be said that the existence

of an incentive award is, itself, sufficient to undermine

a settlement agreement. Accordingly, we join the vast

majority of our sister circuits in holding that incentive

awards are permitted so long as they are found to be

reasonable by a district court.

Having concluded that incentive awards are not per

se prohibited, we turn to consideration of whether the

This inaction is notable when compared to the Private

Securities Litigation Reform Act of 1995, Pub.L.No. 104-67, §101,

109 Stat. 737, 743 (codified at 15 U.S.C. §78u-4), which expressly

prohibits incentive awards in connection with securities class

action settlements. See Moses, 79 F.4th at 255.

28a

district court abused its discretion in approving the

incentive awards granted to the class representatives

here. We find that it did not.

Other than his argument that service awards are

categorically prohibited, Objector does not contend

that the district court’s award of $10,000 to each class

representative was unreasonable or resulted in

unequal treatment of the class representatives

relative to other class members. The district court

recognized that incentive awards “must be reasonable

and proportionate to class representatives’ role in the

case.” Final Approval Order, 724 F.Supp.3d at 23.

After considering the time and effort expended by each

class representative in this action, the district court

found the incentive awards to be appropriate. Id. at

30. We conclude that the district court’s approval of

the incentive awards was well within its discretion.

CONCLUSION

We have carefully considered all of Objector’s

arguments and conclude that they are without merit.

Thus, we affirm the district court’s order.

AFFIRMED

29a

APPENDIX B

[filed March 20, 2024]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

NATIONAL VETERANS LEGAL

)

SERVICES PROGRAM, NATIONAL

)

CONSUMER LAW CENTER, and

)

ALLIANCE FOR JUSTICE, for them- )

selves and all others similarly situated, )

)

UNITED STATES OF AMERICA,

)

Defendant.

)

_____________________________________)

OPINION

For over fifteen years, PACER fees – the per-page

fees that the federal judiciary charges the public for

online access to court documents – have been a subject

of controversy. As a result of the litigation in this case,

the United States will return over $100 million of

these fees to users of PACER. Today, this litigation

substantially comes to a close.

The Court has before it a motion of class

representatives National Veterans Legal Services

Program, National Consumer Law Center, and

Alliance for Justice (the “Named Plaintiffs”) for final

approval of a settlement agreement that would resolve

the pending claims of hundreds of thousands of

30a

plaintiffs and reimburse them for PACER fees that

the judiciary unlawfully used to fund certain nonPACER services. Counsel for the Named Plaintiffs

also request attorney’s fees, costs, and service awards.

After careful consideration of the arguments made

by the Named Plaintiffs and by the government, and

of the comments and objections by interested persons

submitted to the Court and made at the hearing held

on October 12, 2023, the Court will approve the

settlement agreement and award $23,863,345.02 in

attorney’s fees, $1,106,654.98 in costs, and $30,000 in

service awards.1

1 The filings and attachments considered by the Court in

connection with this matter include: Complaint (“Compl.”) [Dkt.

No. 1]; Memorandum of Points and Authorities in Support of

Motion to Dismiss or, in the Alternative, for Summary Judgment

(“Mot. to Dismiss”) [Dkt. No. 11]; Plaintiffs’ Unopposed Motion

for Approval of Revised Plan of Class Notice and Class Notice

Documents, Exhibit 3 (“Class Cert. Web Notice”) [Dkt. No. 42-5];

Notice of Filing of Revised Notice Documents, Exhibit 1 (“Class

Cert. Email Notice”) [Dkt. No. 43-1]; Plaintiffs’ Motion for

Summary Judgment as to Liability (“Pls.’ Summ. J. Mot.”) [Dkt.

No. 52]; Declaration of Jonathan E. Taylor, Exhibit B (“1997 AO

Report”) [Dkt. No. 52-3]; Declaration of Jonathan E. Taylor,

Exhibit E (“Jud. Conf. Letter”) [Dkt. No. 52-6]; Declaration of

Jonathan E. Taylor, Exhibit H (“Lieberman Letter”) [Dkt. No. 529]; Plaintiffs’ Statement of Undisputed Material Facts (“Pls.’

Facts”) [Dkt. No. 52-16]; Defendant’s Cross-Motion for Summary

Judgment (“Def.’s Summ. J. Mot.”) [Dkt. No. 74]; Declaration of

Wendell A. Skidgel Jr. (“Skidgel Decl.”) [Dkt. No. 74-2];

Defendant’s Statement of Material Facts as to Which There is No

Genuine Dispute and Response to Plaintiffs’ Statement of

Undisputed Material Facts (“Def.’s Facts”) [Dkt. No. 74-3];

Declaration of Wendell A. Skidgel Jr. (“2d Skidgel Decl.”) [Dkt.

No. 81-1]; Notice of Submission of Revised Proposed Order and

Revised Notice Documents, Exhibit 5 (“Sett. Web Notice”) [Dkt.

No. 152-5]; Plaintiffs’ Motion for Final Approval of Class

Settlement and for Attorneys’ Fees, Costs, and Service Awards

(“Pls.’ Sett. Mot.”) [Dkt. No. 158]; Declaration of Renée Burbank

(“Burbank Decl.”) [Dkt. No. 158-1]; Declaration of Stuart T.

31a

Rossman (“Rossman Decl.”) [Dkt. No. 158-2]; Declaration of

Rakim Brooks (“Brooks Decl.”) [Dkt. No. 158-3]; Declaration of

Brian T. Fitzpatrick (“Fitzpatrick Decl.”) [Dkt. No. 158-4];

Declaration of Deepak Gupta (“Gupta Decl.”) [Dkt. No. 158-5];

Declaration of Meghan S.B. Oliver (“Oliver Decl.”) [Dkt. No. 1586]; Declaration of Gio Santiago Regarding Implementation of

Settlement Notice Program (“KCC Decl.”) [Dkt. No. 158-7];

Defendant’s Response to Plaintiffs’ Motion for Final Approval of

Class Settlement and for Attorneys’ Fees, Costs, and Service

Awards (“Def.’s Resp.”) [Dkt. No. 159]; Plaintiffs’ Reply in

Support of Motion for Final Approval of Class Settlement and for

Attorneys’ Fees, Costs, and Service Awards (“Pls.’ Reply”) [Dkt.

No. 160]; Supplemental Declaration of Brian T. Fitzpatrick

(“Fitzpatrick Supp. Decl.”) [Dkt. No. 160-1]; Declaration of

William B. Rubenstein in Support of Class Counsel’s Motion for

Attorneys’ Fees (“Rubenstein Supp. Decl.”) [Dkt. No. 160-2];

Supplemental Declaration of Deepak Gupta (“Gupta Supp.

Decl.”) [Dkt. No. 160-3]; Declaration of Meghan S.B. Oliver

(“Oliver Supp. Decl.”) [Dkt. No. 160-4]; Declaration of Gio

Santiago Regarding Settlement Administration Costs (“KCC

Supp. Decl.”) [Dkt. No. 160-5]; Plaintiff-Class Member Don

Kozich’s Verified Objections to Settlement and Motion to Appear

Telephonically or by Zoom (“Kozich Obj. and Mot.”) [Dkt. No.

163]; Plaintiffs’ Response to Objection of Don Kozich (“Resp. to

Kozich Obj.”) [Dkt. No. 165]; and Plaintiffs’ Notice of Filing of All

Objections Received to Date (“Compiled Objs.”) [Dkt. No. 166].

The Court also reviewed the following objections to the

settlement agreement: Objection of Aaron Greenspan (“Greenspan Obj.”) [Dkt. No. 166-1]; Objection of Alexander Jiggetts

(“Jiggetts Obj.”) [Dkt. No. 166-2]; Objection of Geoffrey Miller

(“Miller Obj.”) [Dkt. No. 166-3]; Objection of Eric Isaacson

(“Isaacson Obj.”) [Dkt. No. 166-5]; and Written Statement of Eric

Alan Isaacson of Intent to Appeal in Person at the October 12,

2023, Final-Approval Hearing (“Isaacson Stmt.”)[Dkt. No. 1666].

The Court also reviewed the following prior opinions in this

case: Nat’l Veterans Legal Servs. Program v. United States, Civil

Action No. 16-0745, 2016 WL 7076986 (D.D.C. Dec. 5, 2016)

(“Motion to Dismiss Op.”); Nat’l Veterans Legal Servs. Program

v. United States, 235 F.Supp.3d 32 (D.D.C.2017)(“Class

Certification Op.”); Nat’l Veterans Legal Servs. Program v.

United States, 291 F.Supp.3d 123 (D.D.C.2018)(“Summary

Judgment Op.”); and Nat’l Veterans Legal Servs. Program v.

32a

I. BACKGROUND

A. Origin and History of PACER Fees

Before the late 1980s, federal courts operated on

paper. If members of the public wanted to view court

dockets or filings, they had to travel to the

courthouses where those records physically existed.

Then, in 1988, the judiciary “authorized an

experimental program of electronic access for the

public to court information.” Jud. Conf. Of The U.S.,

Report of the Proceedings 83 (Sept. 14, 1988),

www.uscourts.gov/file/1642/download

[perma.cc/

HKS6-4B34]. This experiment gave rise to the Public

Access to Court Electronic Records system, or

“PACER.” Pls.’ Facts ¶1. PACER allows the public to

access court documents without the need to review

physical records or travel to the courthouse to access

them. 25 Years Later, PACER, Electronic Filing

Continue to Change Courts, U.S. CTS. (Dec. 9, 2013),

www.uscourts.gov/news/2013/12/09/25-years-laterpacer-electronic-filing-continue-change-courts

[perma.cc/92NB-8BM7].

Originally, PACER worked via a dial-up phone

connection and users were charged fees by the minute.

25 Years Later, PACER, Electronic Filing Continue to

Change Courts, supra. But in 1998, PACER moved

online, and the judiciary started charging users on a

per-page basis. See Def.’s Facts ¶16. Around the same

time, the judiciary began to use PACER fees to pay for

programs other than PACER, like Case Management

United States, 968 F.3d 1340 (Fed.Cir.2020)(“Federal Circuit

Op.”).

33a

/ Electronic Case Filing (“CM/ECF”), a new system

that allowed parties to file documents electronically.

See 1997 AO Report at 36; Pls.’ Facts ¶9. By fiscal year

2000, the judiciary was using the fees to pay for

PACER-related costs, CM/ECF-related costs, and

Electronic Bankruptcy Noticing (“EBN”) costs. 2d

Skidgel Decl. ¶31; id. tab 30; see Summary Judgment

Op., 291 F.Supp.3d at 131.

In 2002, Congress passed the E-Government Act, a

statute whose broad purpose was to improve

electronic services and processes in government. See

E-Government Act of 2002, Pub.L. 107-347, 116 Stat.

2899. As relevant to this litigation, the Act amended

the statutory note to 28 U.S.C. §1913 (“Section 1913

Note”) so that it read:

COURT FEES FOR ELECTRONIC ACCESS TO

INFORMATION

[....]

(a) The Judicial Conference may, only to the

extent necessary, prescribe reasonable fees . .

. for collection by the courts ... for access to

information available through automatic data

processing equipment. These fees may

distinguish between classes of persons, and

shall provide for exempting persons or classes

of persons from the fees, in order to avoid

unreasonable burdens and to promote public

access to such information. The Director of the

Administrative Office of the United States

Courts, under the direction of the Judicial

Conference of the United States, shall

prescribe a schedule of reasonable fees for

electronic access to information which the

34a

Director is required to maintain and make

available to the public.

(b) The Judicial Conference and the Director

shall transmit each schedule of fees prescribed

under paragraph (a) to the Congress at least

30 days before the schedule becomes effective.

All fees hereafter collected by the Judiciary

under paragraph (a) as a charge for services

rendered shall be deposited as offsetting

collections ... to reimburse expenses incurred

in providing these services.

28 U.S.C. §1913 note (internal quotation marks

omitted); see E-Government Act of 2002, §205(e). The

Senate Governmental Affairs Committee explained:

The Committee intends to encourage the

Judicial Conference to move from a fee

structure in which electronic docketing

systems are supported primarily by user fees

to a fee structure in which this information is

freely available to the greatest extent possible.

For example, the Administrative Office of the

United States Courts operates an electronic

public access service, known as PACER, that

allows users to obtain case and docket

information from Federal Appellate, District

and Bankruptcy courts, and from the U.S.

Party/Case Index. Pursuant to existing law,

users of PACER are charged fees that are

higher

than

the

marginal

cost

disseminating the information.

S. REP. NO. 107-174 at 23 (June 24, 2002). At that

point, PACER fees were set at $0.07 per page. See

Skidgel Decl. Ex. G at 64.

35a

But PACER fees continued to rise. Effective

January 2005, the Judicial Conference increased fees

to $0.08 per page. Jud. Conf. Letter at 1. The Director

of the Administrative Office of the United States

Courts explained that the increase was “predicated

upon Congressional guidance that the judiciary is

expected to use PACER fee revenue to fund CM/ECF

operations and maintenance.” Id.

By the end of 2006, the judiciary had accumulated

$32.2 million of excess revenue from PACER fees. Pls.’

Facts ¶16; Summary Judgment Op., 291 F.Supp.3d at

134. For that reason, the judiciary further expanded

the categories of programs that would be funded by

the fees. See Summary Judgment Op., 291 F.Supp.3d

at 134-35. These programs included CM/ECF, EBN,

courtroom technology upgrades, an online Jury

Management System (“Web Juror”), a Violent Crime

Control Act (“VCCA”) notification system, and a study

to determine the feasibility of providing access to state

court documents through CM/ECF (the “State of

Mississippi Study”). 2d Skidgel Decl. tab 11, tab 12;

see Summary Judgment Op., 291 F.Supp.3d at 135. In

2012, the judiciary increased PACER fees to $0.10 per

page. Pls.’ Facts at ¶22.

PACER fees have been controversial since at least

2008. That year, a group of activists attempted to

download significant portions of the court documents

available on PACER and make them available for free.

John Schwartz, An Effort to Upgrade a Court Archive

System to Free and Easy, N.Y. TIMES (Feb. 12. 2009),

www.nytimes.com/2009/02/13/us/13records.html.

These activists, along with scholars and public

officials, argued that PACER fees make it difficult for

the public to access information integral to

understanding our country’s law and legal system.

36a

E.g., Timothy B. Lee, The Case Against PACER:

Tearing Down the Courts’ Paywall, ARSTECHNICA

(Apr.

2009),

www.arstechnica.com/techpolicy/2009/04/case-against- pacer [perma.cc/X52VRYQT]; see also Pls.’ Sett. Mot. at 5 (“High PACER

fees hinder equal access to justice, impose often

insuperable barriers for low-income and pro se

litigants, discourage academic research and

journalism, and thereby inhibit public understanding

of the courts.”).

In 2009, Senator Joe Lieberman, sponsor of the EGovernment Act, expressed concern that the judiciary

may have been violating the Act by collecting PACER

fees “well higher than” the cost of funding PACER.

Lieberman Letter at 1. Still, this trend continued.

From the beginning of fiscal year 2010 to the end of

fiscal year 2016, the judiciary collected more than

$920 million in PACER fees; the total amount

collected annually increased from about $102.5

million in 2010 to $146.4 million in 2016. See Pls.’

Facts ¶¶28, 46, 62, 80, 98, 116, 134.

B. Procedural History

The current litigation began in April 2016, when the

Named Plaintiffs filed a class-action lawsuit against

the United States alleging that the judiciary had

violated the E-Government Act by charging excessive

PACER fees. Compl. ¶¶1-3, 34.2 The Named

Plaintiffs alleged jurisdiction under the Little

Tucker Act, 28 U.S.C. §1346(a). Id. ¶33. The Named

2 Judge Ellen Segal Huvelle presided over this case until her

retirement, at which time the case was reassigned to the

undersigned.

37a

Plaintiffs were, and still are, represented by Gupta

Wessler LLP and Motley Rice LLC (“Class Counsel”).

The United States moved to dismiss. See Mot. to

Dismiss. The government argued that the Court

lacked jurisdiction, id. at 15-19, that the Named

Plaintiffs could not sue without first alerting the

PACER Service Center, id. at 13-15, and that other

similar class action lawsuits challenging PACER fees

should be litigated first under the “first-to-file rule.”

Id. at 12-13. This Court denied the motion to dismiss.

See Motion to Dismiss Op., 2016 WL 7076986. In

January 2017, the Court certified a class. See Class

Certification Op., 235 F.Supp.3d 32. The class

consisted of “[a]ll individuals and entities who have

paid fees for the use of PACER between April 21, 2010,

and April 21, 2016, excluding class counsel in this case

and federal government entities.” Id. at 39. These

class members were given notice and an opportunity

to opt out. Gupta Decl. ¶14; see Order Approving Plan

of Class Notice (“1st Notice Appr.”)[Dkt. No. 44]. The

parties then engaged in informal discovery, which

clarified what categories of expenses were funded by

PACER fees. Gupta Decl. ¶15.

In August 2017, the Named Plaintiffs filed a motion

seeking “summary adjudication of the defendant’s

liability, reserving the damages determination for

after formal discovery.” Pls.’ Summ. J. Mot. at 1. The

United States then filed a cross-motion for summary

judgment as to liability. Def.’s Summ. J. Mot. at 1. In

these motions, the parties asked the Court to decide

the central question in the case: Under the EGovernment Act, what categories of expenses may be

funded by PACER fees? See id. at 1-2; Pls.’ Summ. J.

Mot. at 1. The Named Plaintiffs argued that the Act

“prohibits the [judiciary] from charging more in

38a

PACER fees than is necessary to recoup the total

marginal cost of operating PACER,” so none of the

additional categories of expenses were permitted. Pls.’

Summ. J. Mot. at 11. The United States urged a

broader reading of the statute which would allow the

judiciary to “charge fees, as it deems necessary, for the

provision of information to the public through

electronic means,” making all of the additional

categories of expenses lawful. Def.’s Summ. J. Mot. at

11.

The Court rejected both positions, holding that the

government’s interpretation of the E-Government Act

was too broad, but that the Named Plaintiffs’

interpretation was too narrow. See Summary

Judgment Op., 291 F.Supp.3d at 141-44. The Court

concluded that the judiciary “properly used PACER

fees to pay for CM/ECF and EBN, but should not have

used PACER fees to pay for the State of Mississippi

Study, VCCA, Web-Juror, and most of the

expenditures for [c]ourtroom [t]echnology.” Id. at 146.

Using PACER fees to pay for these expenses was

improper because the programs failed to further “the

public’s ability to access information on the federal

court’s CM/ECF docketing system.” Id. at 150.

The parties cross-appealed to the United States

Court of Appeals for the Federal Circuit. In August

2020, the Federal Circuit affirmed this Court’s

interpretation. See Federal Circuit Op., 968 F.3d at

1359. The Federal Circuit wrote that Judge Huvelle

“got it just right” in interpreting the E-Government

Act to “limit[] PACER fees to the amount needed to

cover expenses incurred in services providing public

access to federal court electronic docketing

information.” Id. at 1343, 1350. The Named Plaintiffs’

interpretation failed because it “combine[d] part of the

39a

first sentence of paragraph (a) [of the Section 1913

Note] (‘The Judicial Conference may, only to the

extent necessary, prescribe reasonable fees ....’) with

two parts of the last sentence of paragraph (b) (‘to

reimburse expenses incurred in providing’ the

‘services rendered,’ which plaintiffs construe to mean

PACER access), paying little heed to the substantial

amount of text in between.” Id. at 1350. Instead, the

full text of the Section 1913 Note, along with its

legislative history, made clear that the E-Government

Act “limits the use of PACER fees to expenses incurred

in providing (1) electronic access for members of the

public (2) to information stored on a federal court

docketing system. ” Id. at 1351-52.3

Applying this interpretation to the contested

categories of expenses, the Federal Circuit agreed

with this Court that it was unlawful for the judiciary

to use PACER fees to pay for the State of Mississippi

Study, VCCA, Web-Juror, and most courtroom

technology expenses. Federal Circuit Op., 968 F.3d at

1358. The appellate court declined to decide whether

it was lawful for PACER fees to fund all CM/ECF

expenditures, holding that the issue was not properly

before it and remanding to this Court for further

proceedings. Id. at 1358-59.

After remand, the parties began settlement

discussions. See Gupta Decl. ¶¶23-24. Even after the

Federal Circuit ruling, the government took the

position that it did not owe damages to class members

because the class could not prove that PACER fees

would have been lower if the judiciary had refrained

The Federal Circuit also held that the Little Tucker Act

granted jurisdiction over the lawsuit because the E-Government

Act was sufficiently “money-mandating.” Federal Circuit Op.,

968 F.3d at 1347-49.

40a

from making the unlawful expenditures. Id. ¶23. The

government also maintained that all CM/ECF

expenditures were properly funded by PACER fees.

Id. The Named Plaintiffs disagreed with both

positions. Id.

In May 2021, the parties engaged in an all-day

mediation session with Professor Eric Green. Gupta

Decl. ¶25. During the mediation, the parties agreed to

a common-fund settlement structure and the United

States made a “final offer” for the total amount of the

fund. Id. ¶26. Over the next few weeks, Professor

Green continued to mediate, and the parties agreed on

a fund amount of $125 million. See id. ¶27. Reaching

agreement on the remaining sticking points –

including how the fund would be distributed, what

would happen to unclaimed money, and the scope of

the release of legal claims – took many months more.

Id. ¶¶27-28. In July 2022, the parties executed a

settlement agreement, which they amended once in

September 2022 and again in April 2023 (collectively,

the “Agreement”). Id. ¶28; see id. Ex. A (“Sett.

Agreement”); id. Ex. B (“First Supp. Agreement”); id.

Ex. C (“Second Supp. Agreement”).

On May 8, 2023, the Court granted preliminary

approval of the Agreement and scheduled a hearing to

consider final approval for October 12, 2023 (the

“Settlement Hearing”). See Order Granting Plaintiffs’

Revised Motion for Preliminary Approval of Class

Settlement (“Prelim. Approval”) [Dkt. No. 153] at ¶¶1,

3. At that time, the Court certified a revised

settlement class. Id. ¶7. The settlement class included

all members of the original class who did not opt out,

plus those meeting the same criteria who had paid

PACER fees before May 2018 but after the original

class was certified. Id. The Court directed that notice

41a

of the Agreement and its terms be provided to the

settlement class. Id. ¶¶15, 16, 18. Using the

government’s PACER registration data, the claims

administrator identified members of the class to be

notified. Id. ¶13; KCC Decl. ¶¶5-7.

In July 2023, the claims administrator sent the

court-approved settlement notice, both through email

and through postcards, to over 500,000 PACER

account holders. KCC Decl. ¶¶8-11. These notices

provided class members with the settlement amount,

an overview of the litigation, information about opting

out and submitting objections, and a link to additional

information and the full Agreement on a website

dedicated to the settlement. Id. Ex. B; see PACER

FEES CLASS ACTION, www.pacerfeesclassaction.com

[https://perma.cc/N4L5-AYHS]. Objections could be

filed by mailing or emailing Class Counsel and the

Court. See Sett. Web Notice at 5. Because some class

members already had the opportunity to opt out when

the original class was certified, the notice sent to them

did not include the option to opt out. KCC Decl. ¶8; see

id. Ex. A. The claims administrator also issued

publication notice through a widely disseminated

press release and a banking newsletter. Id. ¶¶12, 13.

There were a few hiccups in the notice process.

First, the initial notice omitted some class members

who were part of the original class. KCC Decl. ¶15.

Second, the notice sent to some members of the

original class incorrectly indicated that they had

another opportunity to opt out. Id. ¶16. The

settlement administrator corrected both mistakes and

sent new notices on August 7, 2023. Id. ¶¶15, 16.

Thirty-three individuals timely opted out of the

42a

settlement class.4 Five individuals filed objections. See

Compiled Objs.5

On August 28, 2023, the Named Plaintiffs moved for

final approval of the class settlement and for

attorney’s fees, costs, and service awards. Pls.’ Sett.

Mot. The Court held the Settlement Hearing on

October 12, 2023. Class Counsel, as well as

representatives for each of the three Named Plaintiffs,

gave statements in support of the Agreement. Two

objectors spoke in opposition to the Agreement. Then

the Court gave the parties an opportunity to respond

to written and oral objections. Finally, the Court

heard from the parties and from objectors on the issue

of attorney’s fees.

II. THE SETTLEMENT AGREEMENT

The Agreement creates a common fund of $125

million and provides for the distribution of at least

80% of that fund to the hundreds of thousands of

persons or entities who paid PACER fees between

April 21, 2010 and May 31, 2018 (the “Class Period”).

4 While the Named Plaintiffs initially stated that thirty-four

individuals timely opted out, Pls.’ Sett. Mot. at 13, the parties

clarified at the Settlement Hearing that they had included a

duplicate in their count and that the correct number is thirtythree. In addition, the parties clarified at the Settlement Hearing

that sixteen individuals attempted to opt out after the opt out

deadline. But none of these sixteen individuals were actually

eligible to opt out, as all were either part of the original class and

had the opportunity to opt out in 2017, or were federal employees

who were never part of the class to begin with. See id.

5 These individuals were: Aaron Greenspan, Alexander

Jiggetts, Geoffrey Miller, Don Kozich, and Eric Isaacson. Of the

written objections, two of the five were timely (Mr. Miller’s and

Mr. Isaacson’s), and one of the three untimely objections was filed

by an individual who is likely not a class member (Mr. Kozich).

Nevertheless, the Court has considered all five objections filed.

43a

A. The Settlement Class and Fund

The settlement class includes all persons or entities

who paid PACER fees in the period beginning six

years before the Named Plaintiffs filed their original

complaint (April 22, 2010) and ending on the date the

judiciary stopped using PACER fees to fund

prohibited expenses (May 31, 2018) – with the

exception of those who opted out, of federal agencies,

and of Class Counsel. Sett. Agreement ¶3; First Supp.

Agreement; see Pls.’ Sett. Mot. at 11. This class

includes at least several hundred thousand members.

See Class Certification Op., 235 F.Supp.3d at 39.

The settlement common fund totals $125 million.

Sett. Agreement ¶11. From this fund, at least 80%, or

$100 million, is to be distributed to class members. Id.

¶18. Up to 20%, or $25 million, is to be used for

attorney’s fees, litigation expenses, and service

awards for the class representatives. Id. ¶28. As to the

attorney’s fees and service awards, the Agreement

specifies that “the Court will ultimately determine

whether the amounts requested are reasonable.” Id.

The Agreement further specifies that service awards

cannot exceed $10,000 per class representative. Id.

B. Fund Allocation and Distribution to

Class Members

The Agreement allocates the common fund to class

members through a two-step calculation. See Sett.

Agreement ¶19. First, all class members are allocated

either $350 or, if they paid less than $350 in PACER

fees during the Class Period, the actual amount that

they paid. Id. Second, class members who paid over

$350 receive, in addition to the first $350, a pro rata

allocation of the remaining common fund. Id. This pro

rata allocation compares the amount that a given

44a

class member paid over $350 to the amounts that

other class members paid over $350, and allots the

remaining common fund accordingly. See id. To

illustrate the calculation, if a class member paid $100

in PACER fees during the Class Period, they will get

all of it back. See id. ¶¶19, 20. But if a class member

paid $1000 in PACER fees during the Class Period,

they will get $350 plus an amount from the remaining

common fund proportional to the additional $650 that

they paid. See id. If there is unclaimed money after

these allocations are distributed to class members,

then the rest of the common fund will be distributed

to class members who have not been fully reimbursed

for the PACER fees they paid during the Class Period

and who successfully collected their first distribution.

Id. ¶23.

In contrast to most class action settlements, class

members will not need to submit claims to get their

share of this common fund. See Pls.’ Sett. Mot. at 13.

Instead, the claims administrator will use the

information provided to them by the government –

which has comprehensive records of PACER

registrants and the fees they paid – to identify class

members and distribute their payments. See id.; Sett.

Agreement ¶¶14, 21, 23; KCC Decl. ¶¶5-7. The claims

administrator will disburse the first set of payments

within 180 days of receiving the settlement fund from

the government, and will distribute any remaining

money three months after that. Second Supp.

Agreement ¶21; Sett. Agreement ¶24.

III. FAIRNESS

Under Rule 23 of the Federal Rules of Civil

Procedure, no class action may be dismissed, settled,

or compromised without the approval of the Court.

FED.R.CIV.P. 23(e). Before giving its approval, the

45a

Court must direct the provision of adequate notice to

all members of the class, conduct a hearing, and find,

after notice and a hearing, that the settlement is “fair,

reasonable, and adequate.” Id.; see Thomas v.

Albright, 139 F.3d 227, 231 (D.C.Cir.1998); In re Black

Farmers Discrimination Litig., 856 F.Supp.2d 1, 26

(D.D.C.2011). In performing this task, the Court must

protect the interests of those unnamed class members

whose rights may be affected by the settlement of the

action. See WILLIAM B. RUBENSTEIN, 4 NEWBERG AND

RUBENSTEIN ON CLASS ACTIONS §13:40 (6th ed. 2023).

To determine whether a settlement is fair,

reasonable, and adequate, the Court “looks to the

‘paramount twin elements of procedural and

substantive fairness.’” Mercier v. United States, 156

Fed. Cl. 580, 584 (2021)(quoting Courval v. United

States, 140 Fed.Cl. 133, 139 (2018)(internal quotation

marks omitted)). The Federal Rules instruct the Court

to consider a variety of factors in doing so. The first

two of these factors are procedural: whether “(A) the

class representatives and class counsel have

adequately represented the class; [and] (B) the

proposal was negotiated at arm’s length.” FED.R.

CIV.P. 23(e)(2). The remaining factors are substantive;

the Court is to consider whether:

adequate, taking into account: (i) the costs,

risks, and delay of trial and appeal; (ii) the

effectiveness of any proposed method of

distributing relief to the class, including the

method of processing class-member claims;

(iii) the terms of any proposed award of

attorney’s fees, including timing of payment;

and (iv) any agreement required to be

identified under Rule 23(e)(3); and (D) the

46a

proposal treats class members equitably

relative to each other.

Id.

Having carefully considered the parties’ arguments

and all of the objections that have been filed with the

Court and expressed at the Settlement Hearing, the

Court concludes that the settlement is fair,

reasonable, and adequate.

A. Procedural Fairness

The Court finds that the Named Plaintiffs and

Class Counsel have more than “adequately

represented” the class. See FED.R.CIV.P. 23(e)(2)(A).

The Named Plaintiffs are nonprofit organizations who

pay PACER fees despite their nonprofit status, and

whose members experienced real burdens because of

the fees. Class Certification Op., 235 F.Supp.3d at 42.

These characteristics made them “particularly good

class representatives.” Id. The two law firms

representing the class, in tandem, have extensive

experience both in class actions and in lawsuits

against the federal government. See Gupta Decl.

¶¶45-48, 50-55, 59-61; see also infra Section IV.B.1.

The Named Plaintiffs and Class Counsel have

vigorously litigated this case for nearly eight years,

over seven of them after the class was certified. See

Gupta Decl. ¶¶11-13. They engaged in informal

discovery, argued (and, in part, won) summary

judgment, and successfully defended the summary

judgment ruling on appeal. See id. ¶¶14-21; see also

infra Section IV.B.2. After remand, they engaged in

extensive

settlement

negotiations

with

the

government. Gupta Decl. ¶¶23-28.

47a

By all accounts, these settlement negotiations

happened at “arm’s length,” indicating no collusion

between the parties. See FED.R.CIV.P. 23(e)(2)(B).

Negotiations came at a point in the litigation where

liability was resolved but there were still significant

questions about the possibility, and amount, of

damages. The negotiations were thus neither “too

early to be suspicious nor too late to be a waste of

resources.” In re Vitamins Antitrust Litig., 305

F.Supp.2d 100, 105 (D.D.C.2004). And because of

“significant informal discovery, ... the parties were

well-positioned to mediate their claims.” Radosti v.

Envision EMI, LLC, 717 F.Supp. 2d 37, 56 (D.D.C.

2010). The negotiations took place over nearly two

years but came together “after a lengthy mediation

session that was presided over by an experienced

mediator,” indicating skilled negotiating on both

sides. See id. Further evidence that the negotiations

were at arm’s length and not collusive is provided by

the positions taken by the parties during settlement

negotiations and the compromises ultimately reached.

See infra at 24.

The notice requirements of Rule 23 were also

satisfied. When the Court preliminarily approved the

settlement, it “direct[ed] notice in a reasonable

manner to all class members who would be bound by

the proposal.” FED.R.CIV.P. 23(e)(1)(B); see Prelim.

Approval ¶¶15, 16, 18. The Court also found the

planned notice to be “the best notice practicable under

the circumstances,” Prelim. Approval ¶21, as was

required for the individuals and entities who were not

part of the originally certified class. See FED.R.CIV.P.

23(c)(2)(B). The claims administrator adequately

executed this notice. Using the government’s PACER

registration data, it identified over 500,000 potential

class members and sent them court-approved notices,

48a

both through email and through postcards. KCC Decl.

¶¶5-7, 8-11; see Prelim. Approval ¶13; see also

FED.R.CIV.P. 23(c)(2)(B) (requiring, for new class

members, “individual notice to all members who can

be identified through reasonable effort”). The claims

administrator also issued publication notice. KCC

Decl. ¶¶12, 13. Each form of notice directed class

members to additional information on the dedicated

settlement website. See id. Exs. A-H. While there were

a few errors in the notice process – the initial notice

omitted some class members and gave some class

members incorrect information – the claims

administrator promptly corrected these errors and

gave recipients sufficient time to opt out or object. Id.

¶¶15-18.6 The notice also satisfied Rule 23’s

substantive requirements for new class members. The

emails, postcards, and publications, along with the

dedicated settlement website:

clearly and concisely state[d] in plain, easily

understood language: (i) the nature of the

action; (ii) the definition of the class certified;

(iii) the class claims, issues, or defenses; (iv)

that a class member may enter an appearance

through an attorney if the member so desires;

(v) that the court will exclude from the class

any member who requests exclusion; (vi) the

time and manner for requesting exclusion;

6 Objector Don Kozich contends that he did not receive notice

of the settlement. Kozich Obj. and Mot. at 2. While no method of

notice is perfect, Mr. Kozich’s failure to receive notice was likely

proper. Mr. Kozich does not appear to be a member of the class.

He incurred PACER fees during the Class Period, but he did not

pay those fees during the Class Period, and thus is ineligible for

relief. Resp. to Kozich Obj. at 1.

49a

and (vii) the binding effect of a class judgment

on members under Rule 23(c)(3).

See FED.R.CIV.P. 23(c)(2)(B). The Court finds that this

notice was more than sufficient and was “reasonably

calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and

afford them an opportunity to present their

objections.” Haggart v. Woodley, 809 F.3d 1336, 134849 (Fed.Cir.2016)(quoting Mullane v. Cent. Hanover

Bank & Tr. Co., 339 U.S. 306, 314 (1950)).

After class members were given notice, they had

over a month (and most had over two months) to file

written objections. See KCC Decl. ¶¶10, 15; Prelim.

Approval ¶¶3, 20. Objections could be filed by mailing

or emailing Class Counsel and the Court. See Sett.

Web Notice at 5. Only five individuals filed written

objections. On October 12, 2023, the Court held the

Settlement Hearing. After the parties’ opening

statements, the Court heard objections to the

settlement. No one spoke who had not already

submitted a written objection. Then, the Court gave

the parties an opportunity to respond to objections.

Finally, the Court heard from the parties and from

objectors on the issue of attorney’s fees.

Objector Eric Isaacson has questioned a few

procedural aspects of the Settlement Hearing. First,

he argues that discussing the proper award of

attorney’s fees after the time scheduled for objectors

to speak deprives objectors of due process and runs

afoul of the Federal Rules, Isaacson Stmt. at 7, which

instruct the Court to consider “the terms of any

proposed award of attorney’s fees” in evaluating the

adequacy of “the relief provided for the class” in the

proposed settlement. FED.R.CIV.P. 23(e)(2)(C)(iii).

Second, Mr. Isaacson argues that objectors at the

50a

hearing should have been given the opportunity to

cross-examine declarants who provided support for

Class Counsel’s requested fees. Isaacson Stmt. at 7.7

Both of these arguments overstate an objector’s role

in the class settlement process. While the Court must

consider – and has considered – the arguments of any

class member who objects to the settlement, the Court

need not give objectors the opportunity to speak at

every possible point in the hearing; nor does the Court

need to give objectors the opportunity to probe

declarations or exhibits through cross-examination or

other means. See 4 RUBENSTEIN, supra, §13:42.

Moreover, to assuage Mr. Isaacson’s concerns, the

Court allowed him to speak during the portion of the

hearing addressing attorney’s fees, in addition to his

opportunity to speak during the portion of the hearing

during which the reasonableness of the settlement

was discussed.

B. Substantive Fairness

In considering a proposed class action settlement,

the Court must compare the benefits afforded to class

members under the settlement with the likely

recovery that plaintiffs would have realized if they

pursued the resolution of their claims through

litigation in court. Thomas v. Albright, 139 F.3d at

231; see In re Black Farmers Discrimination Litig.,

856 F.Supp.2d at 30. The Court must look at the

settlement as a whole and should not reject a

7 Mr. Isaacson further objects that “the settling parties

arranged with the court to keep class members’ objections off the

public record.” Isaacson Stmt. at 3. This objection has no factual

basis. Though the objections the Court received through email

were not automatically docketed, they were available upon

request. In fact, at Mr. Isaacson’s request, Class Counsel filed all

objections to the public docket. See Compiled Objs.

51a

settlement merely because individual class members

claim that they would have received more by litigating

rather than settling. Thomas v. Albright, 139 F.3d at

231. The Court should scrutinize the terms of the

settlement carefully, but should also keep in mind

“the interest in encouraging settlements, particularly

in class actions, which are often complex, drawn out

proceedings demanding a large share of finite judicial

resources.” Christensen v. United States, 65 Fed. Cl.

625, 629 (2005)(quoting Mayfield v. Barr, 985 F.2d

1090, 1092 (D.C. Cir.1993)). And “the opinion of

‘experienced and informed counsel should be afforded

substantial consideration by [the C]ourt in evaluating

the reasonableness of a proposed settlement.’” Prince

v. Aramark Corp., 257 F.Supp.3d 20, 26 (D.D.C. 2017)

(quoting In re Lorazepam & Clorazepate Antitrust

Litig., Civil Action No. 99-0790, 2003 WL 22037741,

at *6 (D.D.C. June 16, 2003)).

In its analysis of the Agreement’s substantive

fairness, the Court is guided by the substantive

factors enumerated in the Federal Rules of Civil

Procedure: whether “the relief provided for the class is

adequate, taking into account” various subfactors, and

whether “the proposal treats class members equitably

relative to each other.” FED.R.CIV.P. 23(e)(2).

1. Whether the Relief is Adequate

The relief the settlement provides to class members

is substantial. The majority of class members will

receive a full refund for the PACER fees they paid

during the Class Period. Gupta Decl. ¶43. Although

the minority of class members – those who paid over

$350 in fees during the Class Period – will likely not

receive a full refund, they may receive substantially

more than $350. See Sett. Agreement ¶19. In addition,

the “proposed method of distributing relief to the

52a

class” is efficient. See FED.R.CIV.P. 23(e)(2)(C)(ii).

There are no claims to process, and class members will

receive the relief even if they have never contacted

Class Counsel or the claims administrator. See Pls.’

Sett. Mot. at 13.

Contrast this substantial relief with the potential

“costs, risks, and delay of trial and appeal.” See

FED.R.CIV.P. 23(e)(2)(C)(i). The Federal Circuit’s

liability ruling in this case found some, but not all, of

the PACER fees collected during the Class Period to

be unlawful. Federal Circuit Op., 968 F.3d at 1350-51,

1357. It left open the question of the extent to which

it was lawful for the judiciary to fund CM/ECF

through PACER fees. See id. at 1358. And the ruling

effectively set the maximum possible recoverable

damages for the class at around $500 million.

Fitzpatrick Decl. ¶20.

Even putting aside the costs of trial and potential

further appeal, the path to obtaining this $500 million

would have been anything but smooth. “[T]here are

several reasons to think a full recovery is unrealistic.”

In re APA Assessment Fee Litig., 311 F.R.D. 8, 19

(D.D.C.2015). After the Federal Circuit’s ruling, the

government continued to assert that the class had no

claim to damages because class members could not

prove that – but for the unlawful expenditures –

PACER fees would have been lower. Gupta Decl. ¶23.

Moreover, even if class members would not have had

to prove damages with specificity, the amount of

potentially recoverable damages still would have been

uncertain. Much of the potential recovery came from

fees the judiciary used to pay for CM/ECF services,

Fitzpatrick Decl. ¶20, and the Federal Circuit

explicitly declined to rule on how much of these

services were appropriately funded through PACER

53a

fees. Federal Circuit Op., 968 F.3d at 1358. The

recoverability of a sizable portion of the potential

damages was thus an open question at the time of

settlement.

In other words, at the point of the litigation at which

the parties agreed on the terms of their settlement, it

would have been a substantial risk to class members

to proceed to trial. Evidence could have shown that all

of the judiciary’s CM/ECF expenditures were lawful.

Or the government could have convinced the Court of

its position on damages. In that case, the Named

Plaintiffs would have faced the difficult task of

proving that the judiciary would have chosen to

charge lower PACER fees had its expenditures been

limited to the lawful categories. The common fund

amount – roughly a quarter of the potential recovery

if every legal and factual issue had gone the plaintiffs’

way – was impressively large in comparison to the

risks of continuing to litigate.

Some objectors see a quarter of the maximum

potential recovery as an unimpressive figure. See

Isaacson Obj. at 3 (calling the settlement “remarkably

mediocre”); Greenspan Obj. at 1 (asserting that the

settlement should have fully reimbursed PACER

users). These views do not properly account for the

formidable arguments that were available to the

government if the case had proceeded to trial. In

addition, Objector Aaron Greenspan asserts that the

common fund amount is too low because the judiciary

can only legally charge for the marginal cost of

document transmission, and that marginal cost is

zero. Greenspan Obj. at 1. But the Court has explicitly

rejected an interpretation of the E-Government Act

that would limit lawful fees to those necessary to pay

the marginal cost of operating PACER. Summary

54a

Judgment Op., 291 F.Supp.3d at 140-43. Instead, the

judiciary can use PACER fees to fund the full cost of

providing public access to federal court electronic

docketing information, including fixed costs. See

Federal Circuit Op., 968 F.3d at 1349-52.

Other objectors argue that the Agreement is

unreasonable because of its provision regarding

attorney’s fees, expenses, and service awards. See

Isaacson Obj. at 9-17; Greenspan Obj. at 1-2. The

Court has conducted a full analysis of the proper fee

awards below. See infra Section IV. For now, it suffices

to say that the fees provision of the Agreement is

reasonable.

See

FED.R.CIV.P.

23(e)(2)(C)(iii)

(instructing courts to consider the provisions of

settlement agreements that relate to attorney’s fees).

The Agreement does not fix an amount of attorney’s

fees or service awards. Instead, it sets an upper limit

on both – Class Counsel was able to request up to 20%

of the common fund for attorney’s fees, expenses, and

service awards, including no more than $10,000 per

service award for each class representative. Sett.

Agreement ¶28. The Agreement leaves to the Court

the ultimate determinations of how much to award.

Id. Rather than setting an unreasonably high amount

of attorney’s fees or service awards, the Agreement

thus caps the amount the Court has the opportunity

to approve as reasonable.

Finally, the relative paucity of objections to the

Agreement is a strong indicator of the adequacy of the

relief. See In re Black Farmers Discrimination Litig.,

856 F.Supp.2d at 29; Mercier v. United States, 156

Fed. Cl. at 597. As Class Counsel notes, the settlement

class is comprised of hundreds of thousands of PACER

users and is “perhaps the most litigious group of

people and entities ever assembled in a single class

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action, ... including sophisticated data aggregators,

federal-court litigators, and law firms of every stripe.”

Pls.’ Reply at 1. Of this group, only thirty-three opted

out of the class, and only five have objected to the

settlement. In light of the terms of the Agreement and

class members’ lack of opposition to them, the Court

finds the settlement relief adequate.

2. Whether the Settlement Treats Class Members

Equitably

The Court concludes that the Agreement “treats

class members equitably relative to each other.”

FED.R.CIV.P. 23(e)(2)(D). While it treats those who

paid $350 or less in PACER fees during the Class

Period differently from those who paid more than

$350, this difference in treatment is fair and justified.

The requirement of intra-class equity exists to

ensure that “class counsel ha[s not] sold out some of

the class members at the expense of others, or for their

own benefit.” 4 RUBENSTEIN, supra, §13:56. If class

counsel prioritizes settling a case over vigorously

advocating for all class members’ claims, counsel may

agree to provide some (more powerful or more vocal)

class members more relief than they deserve while

giving other class members less than they deserve. To

ensure that class counsel has not done so, it falls upon

the Court to determine whether similarly situated

class members are treated similarly and whether

“dissimilarly situated class members are not

arbitrarily treated as if they were similarly situated.”

Id.

There is absolutely no indication that Class Counsel

“sold out” any group of class members in this case. The

Agreement strikes a balance between two competing

goals: First, to give relief to small-scale PACER users

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– the non-lawyer members of the public and individual

law practitioners who were most affected by having to

pay unlawful fees; the full reimbursement of all

PACER fees paid up to $350 makes it more likely that

small-scale users will be wholly compensated. See

Sett. Agreement ¶20. And second, to treat all class

members – including large-scale users like law firms

– equitably based on what they actually paid. The pro

rata allocation above $350 makes it more likely that

the sizable fees paid by large-scale users will be

adequately accounted for. See id. The Agreement thus

does a good job of treating similarly situated class

members similarly, while accounting for the

differences between dissimilarly situated class

members.

The details the parties have provided about the

settlement negotiations further support the

reasonableness of the Agreement’s common fund

distribution. As to the allocation of settlement funds,

the Named Plaintiffs initially took the position that

the fund should be distributed on an exclusively pro

rata basis. Gupta Decl. ¶28. The government

countered that, before the pro rata allocation, class

members should first be fully reimbursed up to a large

amount. Id. It grounded this position in the EGovernment Act’s authorization to “‘distinguish

between classes of persons’ in setting PACER fees ...

‘to avoid unreasonable burdens and to promote public

access to’” electronic docketing information. Id.

(quoting 28 U.S.C. §1913 note). Consistent with the

judiciary’s policy of offering waivers and other pricing

mechanisms to make PACER cheaper for some groups

of users, the government wanted more of the

settlement fund to go to reimbursing those who used

PACER less. See id. The $350 figure reflected a

compromise between the Named Plaintiffs’ position

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and the government’s position. Far from “selling out”

class members, the different treatment of different

groups within the class reflects vigorous negotiation

on both sides, and reflects the text of the EGovernment Act.

A number of the objectors dispute the

reasonableness of the distribution. Mr. Isaacson

argues that too much of the common fund is allocated

pro rata, unfairly favoring large-scale users over

small-scale users. Isaacson Obj. at 4-5. Objector

Geoffrey Miller argues thattoo much of the common

fund is allocated to fully reimbursing users who paid

$350 or less, unfairly favoring small-scale users over

large-scale users. Miller Obj. at 1-2.8 As Class Counsel

points out, these arguments cannot both be correct,

and the fact that each of them was made indicates, if

anything, a good compromise. See Pls.’ Reply at 4.

Moreover, the structure of the distribution is on sound

legal footing. “Neither the Federal Rules of Civil

Procedure nor the Supreme Court requires that

settlements offer a pro rata distribution to class

members . . . .” Int’l Union, United Auto., Aerospace, &

Agric. Implement Workers of Am. v. Gen. Motors Corp.,

497 F.3d 615, 629 (6th Cir.2007). At the same time,

courts routinely approve settlements providing for pro

8 Mr. Miller also objects that “[t]he proposed plan of allocation

under Federal Rule 23 is in tension with the Rules Enabling Act,

28 U.S.C. §[§] 2071-2077, because, by providing different

treatment to litigants with identical legal claims, it arguably

abridges their right to be treated equally before the law.” Miller

Obj. at 2. But the Rules Enabling Act is irrelevant to allocations

between class members in common-fund settlements. Instead, as

applied to class actions, the Rules Enabling Act prevents courts

from “giving plaintiffs and defendants different rights in a class

proceeding than they could have asserted in an individual

action.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 458

(2016).

58a

rata distributions of common funds because such

distributions directly account for the differences in the

value of the claims of different class members. See,

e.g., In re APA Assessment Fee Litig., 311 F.R.D. at 13;

In re Facebook Biometric Info. Priv. Litig., 522

F.Supp.3d 617, 629 (N.D.Cal.2021); In re Telik, Inc.

Sec. Litig., 576 F.Supp.2d 570, 580-81 (S.D.N.Y. 2008).

The fact that two objectors (Mr. Isaacson and Mr.

Miller) hold these contradictory positions is

understandable. A class member who paid

substantially more than $350 in PACER fees, but

substantially less than a large-scale user, may look at

large-scale users and feel disappointed that these

users are getting so much more in absolute dollars.

And a large-scale user may look at a class member

who paid $350 or less in PACER fees and find it unfair

that that class member is getting fully reimbursed by

the Agreement, while the large-scale user is not. At

bottom, however, this dissatisfaction arises from the

amount of the common fund, not its allocation. There

is simply not enough money in the common fund to

reimburse every class member for all of what they

paid in PACER fees – nor should there be, as some of

the fees were lawful. No settlement is perfect. But the

Court finds that the difference in how this settlement

treats different class members is justified, fair, and

equitable.

Mr. Isaacson raises another issue of equity. He

points out that many of the institutional class

members are law firms, and that these firms have

likely already been reimbursed – by their clients or

through settlement agreements in other cases – for

PACER fees paid during the Class Period. Isaacson

Obj. at 4-7. Because these law firms have already been

reimbursed, he argues, it is inequitable to treat them

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like other class members, particularly like individuals

who never received reimbursement. See id. at 4.9

This argument makes some sense in the abstract.

While a reasonable settlement hypothetically could

differentiate between law firm class members who

had been reimbursed for their PACER fees and other

class members who had not been reimbursed for their

PACER fees, there were good reasons not to do so

here. First, prior to settlement, the claims of the law

firms that had been reimbursed by their clients were

just as valid as the claims of other class members. See

S. Pac. Co. v. Darnell-Taenzer Lumber Co., 245 U.S.

531, 533 (1918). In fact, the law firm class members

were likely the only plaintiffs who could have brought

claims against the government to recover the relevant

PACER fees. Their clients could not have brought

such claims because damages under the Little Tucker

Act are available only to those who paid unlawful fees

to the government, to those who paid unlawful fees to

others “at the direction of the government to meet a

governmental obligation,” see Aerolineas Argentinas v.

United States, 77 F.3d 1564, 1573 (Fed.Cir.1996), or to

those against whom the government took action,

related to unlawful fees, that had a “direct and

Mr. Isaacson further argues that the common fund

allocations to many large-scale claimants are improper because

entities whose aggregated claims total over $10,000 fall outside

of Little Tucker Act jurisdiction. Isaacson Obj. at 7-8. This

argument misunderstands the law. “A suit in district court under

the Little Tucker Act may seek over $10,000 in total monetary

relief, as long as the right to compensation arises from separate

transactions for which the claims do not individually exceed

$10,000.” Class Certification Op., 235 F.Supp.3d at 38 (citing Am.

Airlines, Inc. v. Austin, 778 F.Supp. 72, 76-77 (D.D.C.1991);

Alaska Airlines v. Austin, 801 F.Supp. 760, 762 (D.D.C.1992);

United States v. Louisville & Nashville R.R. Co., 221 F.2d

698,701 (6th Cir.1955)).

60a

substantial impact.” See Ontario Power Generation,

Inc. v. United States, 369 F.3d 1298, 1303 (Fed.Cir.

2004) (quoting Casa de Cambio Comdiv S.A., de C.V.

v. United States, 291 F.3d 1356, 1361 (Fed.Cir.2002)).

Because clients who reimbursed law firms for

unlawful PACER fees do not appear to fit into any of

these categories, it would have been difficult –

perhaps impossible – for them to recover anything

from the government. Instead, once law firm class

members have received their distributions under the

Agreement, clients may have claims against them – to

recover what the clients paid to the law firms in

PACER fees – through sources of law unrelated to

class actions, like contract law or state statutes. See

In re AT&T Mobility Wireless Data Servs. Sales Tax

Litig., 789 F.Supp.2d 935, 967 (N.D.Ill.2011)

(approving a settlement even though some class

members had been reimbursed for unlawful fees).

That is between lawyers and their clients and beyond

the scope of this litigation.

Second, it makes sense to leave disputes concerning

reimbursement to law firm class members and the

clients who reimbursed them, rather than to the

claims administrator. It is true, as Mr. Isaacson points

out, that law firms often bill clients for PACER fees.

Isaacson Obj. at 4; see, e.g., Decastro v. City of New

York, Civil Action No. 16-3850, 2017 WL 4386372, at

*10 (S.D.N.Y. Sept. 30, 2017). But it would be

complicated and burdensome for the claims

administrator to sort through billing records to

determine what happened with respect to each set of

PACER fees billed. Sometimes, firms write fees off.

Sometimes, clients do not pay. And if a client paid

part, but not all, of their bills, it may not even be

possible for the claims administrator to figure out

what portion of a client’s payment went towards

61a

PACER charges. On the other hand, law firm class

members are better equipped to determine which of

their clients to reimburse for PACER charges, and by

how much. If the clients believe the firms to be

unlawfully withholding reimbursement, they can sue.

More likely, law firms and clients will resolve any

disputes over reimbursement out of court. Allowing

this process to play out does not make the settlement

inequitable.

In short, the benefits offered to class members by

the Agreement are substantial, and the likely outcome

for the class if the case were to proceed to trial is

uncertain. The Court is convinced that the Agreement

is fair, reasonable, and adequate.

IV. ATTORNEY’S FEES, COSTS, AND

SERVICE AWARDS

“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.”

FED.R.CIV.P. 23(h). Here, the Agreement authorizes

attorney’s fees, costs, and services awards, but limits

the amount the Court can award for these categories

combined to no more than 20% of the common fund, or

$25 million. Sett. Agreement ¶28. The Agreement

further specifies that service awards cannot exceed

$10,000 per Named Plaintiff. Id.

Class Counsel effectively requests the maximum

amount allowed by the settlement: $1,106,654.98 in

costs, $30,000 in service awards ($10,000 for each of

the three Named Plaintiffs), and $23,863,345.02 – the

difference between the $25 million cap and the other

62a

two amounts – in attorney’s fees. Pls.’ Sett. Mot. at 4.10

The government does not oppose their request.11

The Court must independently determine the

reasonableness of the requested fees, costs, and

service awards. After carefully considering the

submissions of the parties, the relevant Federal Rule,

and the case law, and after considering all of the

objections that have been filed with the Court and

expressed at the Settlement Hearing, the Court

awards the full amount requested by Class Counsel in

fees, costs, and service awards.

A. Legal Background

1. Attorney’s Fees

“The ‘common fund doctrine’ allows an attorney

whose efforts created, increased or preserved a fund

‘to recover from the fund the costs of his litigation,

including attorneys’ fees.’” In re Baan Co. Sec. Litig.,

288 F.Supp.2d 14, 16 (D.D.C.2003) (quoting Vincent v.

Hughes Air West, Inc., 557 F.2d 759, 769 (9th

Cir.1977)). In common-fund cases, courts have a duty

to “ensure that claims for attorneys’ fees are

reasonable, in light of the results obtained.” Rogers v.

Lumina Solar, Inc., Civil Action No. 18-2128, 2020 WL

3402360, at *11 (D.D.C. June 19, 2020)(K.B. Jackson,

J.)(quoting In re Black Farmers Discrimination Litig.,

953 F.Supp.2d 82, 87 (D.D.C.2013)). The Court’s

10 The $1,106,654.98 that Class Counsel requests in costs is

comprised of $29,654.98 in attorney expenses and $1,077,000 in

settlement-administration and noticing costs. Pls.’ Sett. Mot. at

11 In its briefs, the government raised concerns about the size

of the requested fees. Def.’s Resp. at 4-7. At the Settlement

Hearing, however, the government indicated that Class

Counsel’s reply brief had alleviated their concerns.

63a

independent scrutiny of an award’s reasonableness is

particularly important in common-fund cases because

“the conflict between a class and its attorneys may be

most stark where a common fund is created and the

fee award comes out of, and thus directly reduces, the

class recovery.” Democratic Cent. Comm. of D.C. v.

Washington Metro. Area Transit Comm’n, 3 F.3d 1568,

1573 (D.C.Cir.1993) (quoting Weinberger v. Great N.

Nekoosa Corp., 925 F.2d 518, 524 (1st Cir.1991)).

Thus, in common-fund cases, the court acts “as

fiduciary for the beneficiaries” of the fund “because

few, if any, of the action’s beneficiaries actually are

before the court at the time the fees are set” and

because “there is no adversary process that can be

relied upon in the setting of a reasonable fee.” In re

Dep’t of Veterans Affs. (VA) Data Theft Litig., 653

F.Supp.2d 58, 60 (D.D.C.2009)(quoting Court

Awarded Attorney Fees, Report of the Third Circuit

Task Force, 108 F.R.D. 237, 251 (1985)).

Courts have identified two approaches to

calculating reasonable attorney’s fees in common-fund

cases. The first is the “percentage-of-the-fund method,

through which ‘a reasonable fee is based on a

percentage of the fund bestowed on the class.’” Health

Republic Ins. Co. v. United States, 58 F.4th 1365, 1371

(Fed.Cir.2023)(quoting Blum v. Stenson, 465 U.S. 886,

900 n.16 (1984)). The second is the lodestar method,

“through which the court calculates the product of

reasonable hours times a reasonable rate, and then

adjusts that ‘lodestar’ result, if warranted, on the

basis of such factors as the risk involved and the

length of the proceedings.” Id. (cleaned up).

While courts have discretion to use either method,

fee awards in common-fund cases are “typically based

on some percentage of the common fund.” Moore v.

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United States, 63 Fed. Cl. 781, 786 (2005). The

lodestar method, by contrast, generally is used in feeshifting cases. Health Republic Ins. Co. v. United

States, 58 F.4th at 1371. Many courts of appeals have

expressed an explicit preference for using the

percentage method in common-fund cases. 5

RUBENSTEIN, supra, §15:64 & n.15; see, e.g., Swedish

Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C.Cir.

1993); see also In re Baan Co. Sec. Li

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