                                                                       PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT        FILED
                               _______________    U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  09/30/99
                                   No. 97-5074
                                                               THOMAS K. KAHN
                                _______________                    CLERK
                        D. C. Docket No. 90-6863-CV-UUB


WILLIAM WATERS, LINDA BARTHOLOMEW, individually,
and on behalf of all those similarly situated,

                                              Plaintiffs-Appellees,
            versus

INTERNATIONAL PRECIOUS METALS CORPORATION,
MULTIVEST, INCORPORATED, et al.,

                                          Defendants-Appellants.
                        ______________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                       ______________________________

                               (September 30, 1999)


Before TJOFLAT and BIRCH, Circuit Judges, and BRIGHT*, Senior Circuit
Judge.


__________________
*Honorable Myron H. Bright, Senior U.S. Circuit Judge for the Eighth Circuit,
sitting by designation.
BIRCH, Circuit Judge:

       In this class action, customers of the commodity futures brokerage firm,

MultiVest Options, Inc. (“MOI”), brought suit against the firm and its brokers,

alleging that the defendants engaged in a scheme to defraud customers by soliciting

and stimulating excessive trading in commodities options. James Grosfeld, as

owner of MOI's parent company, MultiVest, Inc., is the primary defendant in the

case, as MultiVest, Inc. is substantially insolvent.

       After seven years of extremely contentious litigation and five months of

trial, the parties agreed to a settlement prior to the scheduled date of closing

arguments to the jury.1 The settlement created a $40 million fund to pay claims of

class members and the fees and expenses of the plaintiffs' attorneys. The fund was

“reversionary,” meaning that any unclaimed amounts would revert to defendant

Grosfeld, the sole source of funding for the settlement. Defendants now argue that

(1) the district court's award of $13.3 million in fees to the plaintiffs' attorneys was

an abuse of discretion, (2) they are not prohibited from challenging the fee award

even though the settlement agreement contained a “clear sailing” provision

whereby defendants agreed not to challenge the fee award application, (3) the



       1
       The merits of the underlying class action, notwithstanding the energy devoted to those topics
by counsel, are not at issue in this appeal.

                                                 2
district court's order finding that plaintiffs' counsels' fee award is assignable is

reversible error, and (4) that the district court's approval of plaintiffs' attorneys'

expense request was an abuse of discretion. We address each of these issues in

turn.

                                     I.    FEE AWARD

        On the eve of closing arguments, the parties reached a settlement stipulation

and presented the agreement to the district court. In pertinent part, the settlement

provided that defendant Grosfeld would provide the money to fund a settlement of

$40 million with which to satisfy the claims of the plaintiff class. The fund would

consist in part of cash payments and in part promissory notes. In addition, the

stipulation provided that any money not claimed by the plaintiff class or used to

pay out fees and expenses would revert to defendant Grosfeld. See R31-1371, §

6.2(e), at 43.

        The stipulation also provided that plaintiffs' class counsel would apply for

attorneys' fees “in an amount not to exceed 33-1/3% of the Settlement Fund plus

their costs and expenses.” Id., § 7.1, at 54-55.2 Finally, the stipulation included a

        2
         Under the agreement, “settlement fund” is defined as “the sum of the cash and aggregate
initial principal amount of the Master Promissory Note to be delivered to the Settlement
Administrator pursuant to § 2.2 of this Stipulation.” R31-1371, § 1.36, at 15. Section 2.2 provides
that: “Defendants shall cause James Grosfeld to deposit the Settlement Fund in the amount of
$40,000,000 by delivery actually made to the Settlement Administrator, contemporaneously with
the entry of an order by the United States District Court for the Southern District of Florida

                                                3
“clear-sailing” agreement which provided that “Defendants will not directly or

indirectly oppose Plaintiff's Class Counsel of Record's application for fees and

expenses or compensation of the Representative Plaintiffs.” Id. at 55.3 The district

court conducted numerous hearings and conferences among the parties on the

provisions of the settlement agreement. On January 31, 1997, the district court

held a hearing in open court on the pending motion for preliminary approval of the

stipulation of settlement. The court gave preliminary approval and dismissed the

jury. The final fairness hearing was held on March 31, 1997. The district court

approved the settlement and awarded plaintiff's class counsel $13.3 million in

attorneys' fees. See R132-1518-94. The court postponed consideration of

expenses and asked the plaintiffs' counsel to provide additional documentation.

After two additional conferences on April 25 and April 28, 1997, the district court

awarded plaintiffs' class counsel $2,400,204 in expenses. See R35-1543-2.

       We review a district court's award of attorneys' fees for abuse of discretion.

Camden I Condominium Assoc., Inc. v. Dunkle, 946 F.2d 768, 770 (11th Cir.



preliminarily approving this Stipulation.” Id., § 2.2, at 17.
       3
        Such agreements are sometimes included in class action settlements so that defendants have
a more definite idea of their total exposure. See Weinberger v. Great N. Nekoosa Corp., 925 F.2d
518, 520 n.1 (1st Cir. 1991) (“In general, a clear sailing agreement is one where the party paying the
fee agrees not to contest the amount to be awarded by the fee-settling court so long as the award falls
beneath a negotiated ceiling.”).

                                                  4
1991). The district court “has great latitude in formulating attorney's fees awards

subject only to the necessity of explaining its reasoning so that we can undertake

our review.” McKenzie v. Cooper, Levins & Pastko, Inc., 990 F.2d 1183, 1184

(11th Cir. 1993) (internal quotation omitted).

      By definition . . . under the abuse of discretion standard of review
      there will be occasions in which we affirm the district court even
      though we would have gone the other way had it been our call. That
      is how an abuse of discretion standard differs from a de novo standard
      of review. As we have stated previously, the abuse of discretion
      standard allows a range of choice for the district court, so long as that
      choice does not constitute a clear error of judgment.

Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th Cir. 1996) (citation

omitted).

      In considering a fee award in the class action context, the district court has a

significant supervisory role. Federal Rule of Civil Procedure 23(e) mandates that a

“class action shall not be dismissed or compromised without the approval of the

court.” See also Evans v. Jeff D., 475 U.S. 717, 726, 106 S. Ct. 1531, 1537, 89

L.Ed.2d 747 (1986) (“Rule 23(e) wisely requires court approval of the terms of any

settlement of a class action.”). Upon reviewing the voluminous record in this case,




                                          5
we find no abuse of discretion by the district court and affirm the award of

attorneys' fees.4

       On March 31, 1997, the district court presided over a fairness hearing

concerning the proposed Settlement Agreement. At that hearing, after noting the

objections raised by the defendants, the district court proceeded to discuss the

attorneys' fee award with reference to Boeing Co. v. Van Gemert, 444 U.S. 472,

100 S. Ct. 748, 62 L.Ed.2d 676 (1980) and Camden I. See R132-1518-84-85. In

Boeing, the Supreme Court rejected petitioner's argument that the attorneys' fee


       4
         Because we find no abuse of discretion by the district court in its award of fees and
expenses, we need not address the ramifications of the “clear sailing” agreement on the defendants'
ability to challenge the fee award in this case. We note that clear sailing agreements have been the
subject of some controversy in the class action arena. In Malchman v. Davis, 761 F.2d 893 (2d Cir.
1985), abrogated on other grounds, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231,
138 L.Ed.2d 689 (1997),the court upheld an attorneys' fee award from a settlement agreement that
contained a clear sailing clause. The writing judge noted that while the district court judge should
always be the ultimate determiner of the fee award, “where . . . the amount of the fees is important
to the party paying them, as well as to the attorney recipient, it seems . . . that an agreement <not to
oppose' an application for fees up to a point is essential to the completion of the settlement, because
the defendants want to know their total maximum exposure and the plaintiffs do not want to be
sandbagged.” Id. at 905 n.5. In contrast, a concurring panel member noted that clear sailing
agreements had “adverse effects” in that they take away the advantages of the adversarial process
and create the likelihood that plaintiff counsel will negotiate away something of value to the class
in order to procure the defendant's agreement not to challenge the fee award. Id. at 907-08
(Newman, J., concurring). Significantly, the district court here made a factual finding that there had
not been any collusion among the parties. See R132-1518-64 (“it should be noted that the settlement
plainly is not collusive in any respect”).
         Other courts have not been as suspicious of clear sailing agreements reached after arms-
length negotiations. See Skelton v. General Motors Corp., 860 F.2d 250, 259-60 (7th Cir. 1988)
(noting that a settlement agreement is a contract and when a party “accepted the benefits of the
contract . . . [h]e cannot obtain the quid of the settlement agreement and avoid the quo of foregoing
his right to appeal.”). We are satisfied that the district court here fulfilled its Rule 23 supervisory
function and decline to address the clear sailing agreement.

                                                   6
award could only be based on the portion of the common fund actually claimed by

class members and not from the unclaimed portion of the fund. See Boeing, 444

U.S. at 477, 100 S. Ct. at 749. The Court found that “to claim their logically

ascertainable shares of the judgment fund, absentee class members need prove only

their membership in the injured class. Their right to share the harvest of the

lawsuit upon proof of their identity, whether or not they exercise it, is a benefit in

the fund created by the efforts of the class representatives and their counsel.” Id. at

480, 100 S. Ct. at 750 (emphasis added). Boeing, as in the case at bar, involved the

defendant's potential claim on undispersed portions of the fund, causing the Court

to note that Boeing's “latent claim against unclaimed money in the judgment fund

may not defeat each class member's equitable obligation to share the expenses of

litigation.” Id. at 482, 100 S. Ct. at 751.

      In Camden I, we held that “attorney's fees awarded from a common fund

shall be based upon a reasonable percentage of the fund established for the benefit

of the class.” 946 F.2d at 774. We further noted that the “majority of common

fund fee awards fall between 20% to 30% of the fund.” Id. Finally, we directed

district courts to view this range as a “benchmark” which “may be adjusted in

accordance with the individual circumstances of each case,” using the factors set

forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974),


                                              7
abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939,

103 L.Ed.2d 67 (1989). Id. at 775.5

       After determining that the benchmark in this case should be 30%, see R132-

1518-87, the district court proceeded to consider whether the benchmark should be

adjusted up or down based on the circumstances of the case as analyzed under the

twelve factors outlined in Johnson. Id. at 86-93. The district court concluded that

all factors were either neutral or required an upward adjustment in the benchmark

percentage. Id. Following the directives of Camden I, the district court factored an

additional upward adjustment for the time taken to reach settlement through seven

years of litigation and five months of trial. The district court further found that the

case served an unusual public policy by highlighting the potential for “boiler

room” tactics in the commodities industry. Id. at 94. The district court then

concluded that “class counsel is entitled to a small upward adjustment in the

benchmark of 30%, and that the appropriate adjustment is to the percentage of the

fund requested by class counsel as its fee, that is, 33 1/3%, or $13,333,333.” Id.




       5
        Johnson instructs that district court should consider twelve factors in determining attorneys'
fee awards: (1) time and labor, (2) novelty and difficulty of the questions, (3) requisite skill, (4)
preclusion of other employment, (5) customary fee, (6) fixed or contingent fee, (7) time limitations,
(8) amount involved and results obtained, (9) experience, reputation and ability of attorneys, (10)
“undesirability” of the case, (11) nature and length of professional relationship with client, and (12)
award in similar cases. 488 F.2d at 717-19.

                                                  8
       The defendants' primary argument seems to be that the attorneys' fee award

was based on a percentage of the total fund rather than the actual payments made to

class members.6 The district court, however, considered the possibility that the

actual payout would be less than the total fund generated for the settlement and

noted that

       after seven years the number of class members actually asserting
       claims will be significantly lower than the class membership. I can
       also anticipate that the number of class members who end up having
       approved claims, who will actually demand payment on their notes
       after five years similarly will decrease, so that the actual dollars paid
       out will be substantially less than $40 million.

R132-1518-91-92.7


       6
        The estimated actual payment to class members is $6,485,362.15. See R35-1563-13.
       7
          Defendants' assertion to the contrary notwithstanding, the district court reiterated, in its
denial of defendants' motion to amend the final order and judgment approving the settlement, that
the “Court is, and was at the time the Final Judgment was entered, well aware that there is a
distinction between the ratio of attorneys' fee to the value of the class members' recovery in a
common fund settlement in circumstances where the entire fund is distributed to class members
asserting claims on a pro rata basis as opposed to circumstances where, as here, the defendants were
able to successfully negotiate for a reversion of any unclaimed portion of the fund.” R35-1544-2.
         The district court also rejected defendants' suggestions that it was “misled” by the National
Economic Research Associates (NERA) study on class actions offered by both parties in support of
the settlement agreement, and that the NERA Study presented attorneys' fees as a percentage of the
actual payout rather than of the total fund. The district court responded that:
         [Defense counsel's argument] (1) conflicts with the position he took earlier in the
         case when he was seeking the Court's preliminary approval of the Stipulation of
         Settlement that the fee application specifically contemplated by the Stipulation of
         Settlement, i.e. $13,333,333 representing 33 and one third percent of the $40 million
         Settlement Fund, was reasonable and that its reasonableness was supported by his
         experience in other class actions and consistent with the conclusions contained in the
         NERA Study; (2) conflicts with the Defendants' express undertaking that they would
         not oppose Plaintiffs' fee application so long as it did not exceed 33 and one-third

                                                  9
       Contrary to defendants' assertion, no case has held that a district court must

consider only the actual payout in determining attorneys' fees.8 Strong v.

BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998), does not

mandate that a district court must consider only the actual award made to the class.

Rather, Strong held that it was not an abuse of discretion for a district court judge

to consider the actual award paid out to the class in determining whether a fee

application was reasonable. Id. at 852-53. The Fifth Circuit, in fact, noted that

while the district court's request for information concerning the actual claims was

“not the usual” course of action, it was not an abuse of discretion under the

circumstances presented to the district court. Id. at 853. Additionally, unlike the


      percent of the $40 million Settlement Fund; and (3) conflicts with the term
      “settlement value” as used in the NERA Study, the plain meaning of which is the
      gross amount of the settlement pursuant to the Final Judgment as stated in the Final
      Settlement Notice to class members. In fact, the Court's understanding of NERA's
      usage of the term “settlement value' has been confirmed to the undersigned by Todd
      S. Foster, a representative of NERA who was one of the authors of the NERA Study.
R35-1544-4.
       8
         In Goodrich v. E.F. Hutton Group, Inc., No. 8279 (Del. Ch. Feb. 2, 1996), aff'd, 681 A.2d
1039 (Del. 1996), the judge, in his discretion, chose to base the percentage of the attorney fee award
on the actual payment to claimants. Unlike the case at bar, Goodrich did not involve a situation
where each claimant had an “undisputed and mathematically ascertainable claim” to part of the
judgment. Id. at 1048. Furthermore, Goodrich emphasized that the “award of attorneys' fee in a
common fund case is committed to the sound discretion of the trial court.” Id. at 1050 n.12. The
court further declined to adopt a mandatory methodology for determining attorneys' fees. Id. at
1050. The fact that the cases cited by the defendants emphasize that attorneys' fee awards are in the
discretion of the district court and decline to adopt a strict method of calculation, illustrate that
whether a district court judge considers the total fund or the actual payment will vary according to
the circumstances of each case. Here, where the district court considered both the total fund and the
possibility that the actual payment would be substantially lower, there is no abuse of discretion.

                                                 10
case at bar, Strong never established a “common fund” from which money would

be drawn. See Strong, 137 F.3d at 852 (“[N]o fund was established at all in this

case.”). In contrast, the parties here established that $40 million was the fund upon

which the amount of the individual claimants' awards would be based. The district

court here never made a determination that this amount was illusory. Cf. id.

(finding that common fund figure was “phantom”).

      Moreover, in Williams v. MGM-Pathe Communications Co., 129 F.3d 1026

(9th Cir. 1997) (per curiam), a class action reversionary fund case, the Ninth

Circuit held that the “district court abused its discretion by basing the fee on the

class members' claims against the fund rather than on a percentage of the entire

fund or on the lodestar.” Id. at 1027 (footnote omitted). The court found that the

attorneys' fee award should have been based on a percentage of the total recovery

fund, $4.5 million, even though the actual payout only totaled approximately

$10,000. Interestingly, in addressing arguments similar to those presented by the

defendants here, the court stated that “Defendants here knew, because it was in the

settlement agreement, that the class attorneys would seek to recover fees based on

the entire $4.5 million fund. The Defendants had some responsibility to negotiate




                                          11
at the outset for a smaller settlement fund if they wished to limit the fees.” Id.9 We

also note, as the district court recognized, that a leading commentator on class

actions has agreed that fee awards may be based on the total available fund:

        When a lump sum has been recovered for a class, that sum represents
        the common fund benchmark on which a reasonable fee will be based.
        When, however, the defendant reserves the right to recapture any
        unclaimed portion of the common fund after class members have had
        an opportunity to make their claims against the fund, . . . the question
        arises concerning whether the benchmark common fund amount for
        fee award purposes comprises only the amount claimed by class
        members or that amount potentially available to be claimed. In
        Boeing Co. v. Van Gemert, the Supreme Court settled this question by
        ruling that class counsel are entitled to a reasonable fee based on the
        funds potentially available to be claimed, regardless of the amount
        actually claimed.




        9
         While we fully agree that the district court has an independent supervisory duty to assess
the appropriateness of the fee award apart from any agreement reached by plaintiff and defense
counsel, see Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980) (“A district court is not bound
by the agreement of the parties as to the amount of attorneys' fees.”), we note that defense counsel's
arguments about the “exorbitant and unprecedented fee Award,” Brief for Defendants-Appellants,
at 4, are in conflict with their earlier assertions to the district court. As the district court noted, at
the time the settlement agreement was presented to the court, the defense counsel fully supported,
as “well within the range of reasonable”, R132-1518-42, an award of 33 1/3% of the total settlement
fund. The district court further noted that both parties supported “a fee award of one-third of the $40
million settlement fund, which everyone at the time clearly understood to be approximately $13
million,” id. at 34, and emphasized “that in these discussions both sides went to some lengths to
convince me that a settlement fund consisting of $40 million, albeit comprised of $10 million in cash
and the balance in notes, less a fee award of one-third of the gross amount of the settlement fund and
reimbursement of counsel's expenses, would produce an exceptional benefit to the class members.”
Id. at 35. Additionally, no class members opposed the amount of the attorneys' fee award. See id.
at 63 (only class member to oppose portion of settlement stipulation at fairness hearing “was just
angry at the reversionary clause.”).

                                                   12
Herbert B. Newberg and Alba Conte, Newberg on Class Actions § 14.03, at 14-14

(3d ed. 1992).10

       In addition to the district court's careful consideration of the Johnson factors

and awareness that the actual claims made could be less than the gross settlement

fund, our conclusion that the award is not an abuse of discretion is supported by

the following observations. Unlike many other class actions, the total fund amount

of $40 million was not illusory or meaningless. Each class claimant benefitted

from having the total amount of the fund set at $40 million because the individual

payment was based upon a percentage of the total fund. The amount of the total

fund determined the amount of each class member's claim, regardless of the actual

number of claims filed. In other words, as the district court explained:

       In relationship to the plan of allocation, the stipulation of
       settlement provides that each class member will recover from
       the net settlement fund in the same proportion that his or her
       losses bore to total customer losses. Therefore, the claim of
       any class member will not reduce or increase the recovery of


       10
          See also In re Copley Pharmaceutical, Inc., 1 F.Supp.2d 1407 (D. Wyo. 1998), where the
district court approved, under Boeing, the payment of attorneys' fees from the gross settlement fund.
“The first step in a percentage of the fund analysis is a determination of the value of the fund. While
disputed by the parties in this case, the matter is settled by the explicit terms of the Agreement.” Id.
at 1412. The court further found that “this case involves a settlement negotiated at arms length,
rather than a judgment. Under the terms of that settlement and its remittitur provisions, Defendant
not only knew that class counsel would seek to recover fees based on the gross amount of the fund
recovered (regardless of whether some part of that fund was not claimed), but also agreed to a
mechanism and formula by which class counsel could do so. Thus Defendant cannot complain now
that class counsel seek to do what the settlement agreement explicitly contemplates.” Id. at 1416.

                                                  13
       any other class member except to the extent that the Court
       orders that bonuses be paid to the class representatives.

R132-1518-64. Defendants' counsel also noted that “each claimant's

distribution does not depend on how many claims are submitted in this

case.” Id. at 145. The total fund awarded in the settlement, therefore,

substantially and directly affected the amount that each claimant would eventually

be awarded. The fact that there were a reduced number of claimants had no effect

at all on the amount each class member received. That amount, rather, was

determined by the total fund accrued. Negotiating a $40 million gross settlement

fund, therefore, created a benefit on behalf of the entire class.11

       Moreover, even if we were to accept defendants' argument about the amount

on which attorneys' fees should be based, the reversionary nature of the settlement

necessarily would mean that 90% of the reduction in attorneys' fees would accrue

to the benefit of the defendant, in contrast to the mere 10% which would accrue to

the class' interest.12 Defense counsel's claimed interest in protecting the class thus,

       11
          Defendants argue that the court should consider the policy behind the recently-enacted
Private Securities Litigation Reform Act, (“PSLRA”), Pub. L. No. 106-67, 109 Stat. 737, 758, § 108,
which specifies that attorneys' fee requests must be considered in light of the total benefit to
plaintiffs. We decline to apply the policy of the PSLRA because it does not apply to actions
commenced before and pending upon its effective date, December 22, 1995. Furthermore, it is
likely that the PSLRA does not apply to commodities actions.
       12
         Defendants calculate that the attorneys' fees should be $3,627,526, as opposed to the $13.3
million awarded by the district court. Brief of Defendants-Appellants, at 47 & n.17. Of the
additional $9.7 million that would accrue to the settlement fund from this calculated reduction in

                                                14
seen in this light, strains credulity. Furthermore, while we have decided in this

circuit that a lodestar calculation is not proper in common fund cases, we may refer

to that figure for comparison. The plaintiffs' counsels' lodestar calculation would

bring a fee of $12,663,897. See R32-1480, at ¶ 9. The $13.3 million awarded by

the district court then would have only a modest lodestar multiplier of 1.05%.

       Finally, the abuse of discretion standard has particular meaning in lawsuits

that are as lengthy and contentious as the case at bar. This litigation has generated

134 volumes of record. Forty-eight witnesses testified at the trial alone. The

district court is in the unique position to evaluate the labors of both parties in this

litigation. Nothing in this opinion precludes a district court judge in a different

case from basing the attorneys' fee award on the actual class recovery, or on the

gross settlement figure. The factors the district court considers will vary according

to the circumstances presented in each case. When we can discern no clear error of

judgment by the court, however, there is no abuse of discretion.

                                 III. EXPENSE AWARD

       The defendants also challenge the district court's award of $2,400,204 in

expenses to the plaintiffs' class counsel. R35-1543-2. Plaintiffs' lead counsel



attorneys' fees, only $1,000,000 would be redistributed to the 20,000 potential claimants, while $8.7
million would revert to the defendants. Id.

                                                 15
originally requested an expense award of $2,586,611.60, and co-counsel,

$77,482.97, totaling $2,664,094.57. See R132-1518-94. While observing that

Camden I did not provide guidance for determination of expenses, the district court

recognized that “there is a requirement . . . on the part of class counsel to establish

that the costs are reasonable and necessary . . . to the prosecution of the case.”

R132-1518-96. See also In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp.

1296, 1314 (E.D.N.Y. 1985), modified on other grounds, 818 F.2d 226 (2d Cir.

1987) (“Upon submission of adequate documentation, plaintiffs' attorneys are

entitled to reimbursement of those reasonable and necessary out-of-pocket

expenses incurred in the course of activities that benefitted the class.”). The

district court further recognized a “responsibility to scrutinize the costs for which

reimbursement is requested in order to ensure that class counsel is not obtaining a

secret or unintended profit.” R132-1518-97.

      After a March 31, 1997 hearing, the district court determined that lead

counsel for the plaintiff class had failed to substantiate its cost application to the

extent necessary for the court to make a determination as to whether the expenses

were reasonable. From the co-counsel's costs, the district court disallowed “legal

services” and “postal costs” and cut reproduction costs from 25¢ to 10¢ per page.

See R132-1518-95.


                                           16
       At an April 25, 1997, status conference, the district court made final expense

determinations in light of plaintiffs' counsel's supplements to the expense request,

such as “additional computer print-outs, invoices and other documents, as well as

affidavits explaining the law firm's billing procedures for out-of-pocket costs, and

affidavits addressing the reasonableness of certain categories of expenses.” R35-

1542-2-3. The record reveals that the district court conducted an exhaustive and

detailed examination of each of plaintiff's counsel's claimed expenses. See R133-

1535-4-16.13

       We are convinced that the district court did not “rubber stamp” the

submissions of the plaintiffs' class counsel for expenses, but rather required more

specific documentation for costs, considered each type of expense separately, and

eventually disallowed over $200,000 of the request. Rarely do class action

litigations proceed to trial. The expense request in this case reflects seven years of

litigation and a five-month trial. We see no abuse of discretion in the district

court's expense award.

                       IV. ASSIGNABILITY OF FEE AWARD




       13
           Among many other considerations, the district court eliminated costs for local meals, cabs,
airline ticket upgrades, and other miscellaneous travel charges, id. at 6; approved telephone charges,
id. at 4; and disallowed lobbyist fees and charges for a jury selection psychiatrist, id. at 9.

                                                 17
      Under the original stipulation of settlement, plaintiffs' class counsel was to

receive the entire sum of attorneys' fees and expenses in cash. The district court

questioned this arrangement because the plaintiff class members were only to

receive 25% of their claim in cash and the remaining 75% in the form of

promissory notes. Responding to the district court's concern, plaintiffs' class

counsel agreed to accept 25% cash and 75% in deferred obligation for their fee

award. The terms of the deferred obligation are the source of the present

controversy.

      Defendants challenge the district court's determination that the promissory

notes given to plaintiffs' class counsel are assignable. The stipulation of settlement

provides that the portion of attorneys' fees “not paid in cash out of the cash portion

of the Settlement Fund will be paid by the Settlement Administrator if, as and

when the Settlement Administrator receives payments with respect to the Master

Promissory Note, and the deferred portion of these fees and expenses will earn

interest at the same rate and be paid at the same time as interest is earned and paid

on the Master Promissory Note.” R31-1371-55-56. Exhibit A to the stipulation

agreement, a proposed order with respect to the class action settlement, signed by

counsel for both parties, provides that “Counsel will request that the payment of

fees and expenses out of the Settlement Fund be made in cash to the extent


                                          18
available. Any fee awarded which is not paid in cash shall be paid in the form of

an obligation having the same terms and bearing the same interest rate as the

Promissory Notes, as defined in the Stipulation.” R31-1371, Exh. A, at 11. The

stipulation provided that promissory notes given to class claimants were freely

assignable. R31-1371-20. Under the terms of the proposed order, then, the

deferred attorney's fees would be on equal terms with the class claimants'

promissory notes and, therefore, assignable. Defendants argue that the language in

the proposed order is a material alteration of the language in the stipulation of

settlement. The proposed order, however, was attached to the stipulation

agreement as an exhibit. Under the terms of the stipulation agreement, “[a]ll of the

Exhibits to the Stipulation . . . are fully incorporated herein by this reference.” Id.

at 66, § 10.5.

      Furthermore, as the district court noted, “[n]owhere in the January 31, 1997

Order or the Stipulation of Settlement is it specifically provided that the deferred

obligation to class counsel shall not be assignable or transferable.” R33-1515-2-3.

As a result, the more detailed language of the proposed order does not materially

alter the silence of the stipulation of settlement. Moreover, under Florida law, in

accordance with which the settlement agreement is to be governed, “[g]enerally, all

contractual rights are assignable unless the contract prohibits assignment, the


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contract involves obligations of a personal nature, or public policy dictates against

assignment.” L.V. McClendon Kennels, Inc. v. Investment Corp., 490 So. 2d

1374, 1375 (Fla. Dist. Ct. App. 1986). Since there is no language in the stipulation

of settlement or proposed order prohibiting assignment, we find that the district

court properly determined the notes are assignable.

                                V.    CONCLUSION

      We find that district court did not abuse its discretion in awarding attorneys'

fees and expenses to plaintiffs' class counsel. We also affirm the district court's

order that the portion of attorneys' fee to be paid in promissory notes is assignable.

Nothing in this opinion should be interpreted to minimize the importance of the

active supervisory role of the district court when reviewing class action

settlements, particularly those involving the so-called “clear sailing” agreements.

The district court here, however, did not abuse its discretion in making an

attorneys' fee award. The court considered, and applied, all the relevant Eleventh

Circuit precedent. Defense counsel, having reaped the benefits of their bargain in

settling the class action suit, cannot expect the court to renegotiate on their behalf

the terms of an agreement concluded after arms-length negotiations.

      AFFIRMED.




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