
USCA1 Opinion

	




          July 7, 1995      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 94-1156, 94-1164, 94-1409, 94-1414, 94-1422, 94-1423,               94-1426, 94-1427, 94-1430, 94-1438, 94-1439, 94-1440,               94-1442                     IN RE:  THIRTEEN APPEALS ARISING OUT OF THE                     SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.                              _________________________                                     ERRATA SHEET               The opinion of this  Court issued May 31, 1995,  is ammended          as follows:                           Delete cases #94-1430 and  #94-1442 from the Court's opinion          and judgement  of May 31, 1995.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 94-1156, 94-1164, 94-1409, 94-1414, 94-1422, 94-1423,               94-1426, 94-1427, 94-1438, 94-1439, 94-1440                     IN RE:  THIRTEEN APPEALS ARISING OUT OF THE                     SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Judith  Resnik,  with  whom  Dennis E.  Curtis,  Richard  A.               ______________               _________________   ___________          Bieder, and Koskoff, Koskoff  & Bieder, P.C., were on  brief, for          ______      ________________________________          appellants Bieder, et al.               Jose E. Fernandez-Sein on brief for appellant Nachman.               ______________________               Steven C. Lausell, with whom Jimenez, Graffam & Lausell  was               _________________            __________________________          on brief, for appellee Jimenez, Graffam & Lausell.               Will Kemp, with whom Stanley Chesley, Wendell Gauthier, John               _________            _______________  ________________  ____          Cummings, David Indiano and Harrison, Kemp & Jones, Chtd. were on          ________  _____________     _____________________________          brief, for remaining appellees.                              _________________________                                     May 31, 1995                              _________________________                    SELYA,  Circuit Judge.    These appeals  require us  to                    SELYA,  Circuit Judge.                            _____________          revisit the war zone where two groups of plaintiffs' lawyers have          struggled over the proposed  allocation of roughly $68,000,000 in          attorneys'  fees.    One  camp, dissatisfied  with  the  district          court's  latest formula  for distributing  the fees,  attacks the          court's order on three  fronts.  The disgruntled lawyers  contend          that the district  court (1) violated  their due process  rights,          (2)  used an  improper method  to determine  the awards,  and (3)          divided  the available  monies in  an arbitrary  and unreasonable          manner.   We  find appellants'  first two  plaints to  be without          merit, but  we agree with them that allocating 70% of the fees to          the  appellees   constituted  an  abuse  of   the  trial  court's          discretion.   And, because we  are reluctant to  prolong a matter          that, like the proverbial cat, seems to have  nine lives, we take          matters into our own hands and reconfigure the fee awards.          I.  BACKGROUND          I.  BACKGROUND                    The lay of the land is familiar.  We  explored much the          same  terrain in an earlier encounter, see In re Nineteen Appeals                                                 ___ ______________________          Arising Out of San Juan Dupont  Plaza Hotel Fire Litig., 982 F.2d          _______________________________________________________          603  (1st Cir. 1992), and  a plethora of  opinions describing the          details of  the underlying litigation  pockmark the pages  of the          Federal  Reports, see,  e.g., id.  at 605  n.1  (offering partial                            ___   ____  ___          listing).  Thus, a brief overview of the litigation will suffice.                    In 1987, the Judicial Panel on Multidistrict Litigation          consolidated  over  270  cases  arising  out  of  the  calamitous          conflagration that had ravaged the San Juan Dupont Plaza Hotel on                                          3          the evening of  December 31, 1986.   See In  re Fire Disaster  at                                               ___ ________________________          Dupont  Plaza  Hotel,  660  F. Supp.  982  (J.P.M.L.  1987)  (per          ____________________          curiam).   The designated trial  judge, Hon.  Raymond L.  Acosta,          handpicked  certain  attorneys, denominated  collectively  as the          Plaintiffs' Steering Committee (PSC), to act as  lead and liaison          counsel for the plaintiffs.   In Nineteen Appeals, we  summarized                                           ________________          the  roles  played  by  the  PSC and  the  individually  retained          plaintiffs' attorneys (IRPAs), respectively:                    The PSC members looked after the big picture:                    mapping the overarching discovery, trial, and                    settlement  strategies  and coordinating  the                    implementation  of  those  strategies.    The                    IRPAs handled individual client communication                    and   other   case-specific  tasks   such  as                    answering   interrogatories    addressed   to                    particular    plaintiffs,    preparing    and                    attending the depositions  of their  clients,                    and taking depositions which bore on damages.                    The IRPAs also worked with Judge Bechtle [the                    "settlement judge"] on  a case-by-case  basis                    in his  efforts to identify  and/or negotiate                    appropriate settlement  values for individual                    claims.   When  Judge Acosta  determined that                    the    plaintiffs     should    try    twelve                    representative   claims   as   a   means   of                    facilitating   settlement,   a  collaborative                    composed of three PSC members and  four IRPAs                    bent their backs to the task.          Nineteen Appeals, 982 F.2d at 605.          ________________                    The  combined  efforts  of  all concerned  generated  a          settlement  fund approximating $220,000,000.   The district court          computed  the  payments  due  under the  various  contingent  fee          agreements, deducted  the total  (roughly  $68,000,000) from  the          overall settlement proceeds, and placed that sum in an attorneys'                                          4          fee  fund (the Fund).1   In his  initial attempt to  disburse the          Fund, Judge Acosta used an enhanced lodestar to compute the PSC's          fees,  and  awarded some  $36,000,000 (52%  of  the Fund)  to PSC          members  in their  capacity as  such, leaving  the balance  to be          distributed among the IRPAs.  A group of lawyers (mostly, but not          exclusively, "non-PSC" IRPAs)2  succeeded in vacating  this award          on the ground that the proceedings were procedurally flawed.  See                                                                        ___          id. at 610-16.          ___                    The  victory proved  to be  illusory.   On remand,  the          district  court  abandoned  the  lodestar approach,  adopted  the          percentage of  the fund (POF)  method, and recalculated  the fees          based on what it  termed "the relative significance of  the labor          expended by the  IRPAs and PSC members in instituting, advancing,          or  augmenting  the plaintiffs'  settlement  fund."   Using  this                                        ____________________               1In  addition to  attorneys' fees,  the lawyers  are seeking          reimbursement of certain costs  and expenses from the plaintiffs'          share of the settlement proceeds.  The district court  has yet to          make a final  determination relative  to costs, and  we have  not          considered  that  aspect of  the matter.    Thus, our  opinion is          without  prejudice  to  the  parties' claims  and  objections  in          respect to costs.               2Since each  PSC member is also an IRPA in the sense that he          or  she has been individually retained by one or more plaintiffs,          the  PSC  members  will  receive  payments  in  both  capacities.          Nevertheless,  due to the wide disparity in the number of clients          that each PSC member  represents, a generous PSC award  stands to          benefit certain  PSC members  who have relatively  few individual          clients and  to disadvantage those who  represent many claimants.          See Nineteen Appeals, 982  F.2d at 607.  Similarly,  an oversized          ___ ________________          PSC  award is  even more  detrimental to  the interests  of those          IRPAs who are not members of the PSC, as each dollar that is paid          to the PSC shrinks the  pot that otherwise will be divided  among          the IRPAs.   See id.   Due to  this phenomenon, some  PSC members                       ___ ___          were  among  the lawyers  who  fought  to  overturn the  original          allocation.                                          5          methodology, the court awarded 70% of the Fund to PSC members  in          their capacity  as such,  thereby increasing  their share  of the                                            __________          fees  by  some  $11,000,000,  while simultaneously  reducing  the                                                              ________          IRPAs' share  of the  Fund by  the  same amount.   These  appeals          ensued.          II.  ADEQUACY OF THE PROCEEDINGS          II.  ADEQUACY OF THE PROCEEDINGS                    In a virtual  echo of the  claims advanced in  Nineteen                                                                   ________          Appeals,  appellants (all  of  whom are  IRPAs) characterize  the          _______          proceedings by which the district court determined the allocation          of  the Fund as unfair.  Specifically, appellants assert that the          revamped  procedural  framework  violated  their  rights  to  due          process, and that, in all events, the court abused its discretion          in  erecting  the framework.    We consider  these  assertions in          sequence.                                   A.  Due Process.                                   A.  Due Process.                                       ___________                    In Nineteen  Appeals, 982 F.2d at  610-16, we discussed                       _________________          the  due  process considerations  implicated  in  the fee-setting          aspect of this litigation.  We again use the triangular construct          of Mathews v. Eldridge, 424 U.S. 319 (1976), to determine whether             _______    ________          the  district court  afforded the  IRPAs "the  opportunity to  be          heard `at a meaningful time and in a meaningful manner.'"  Id. at                                                                     ___          333 (quoting Armstrong v. Manzo, 380 U.S. 545, 553 (1965)).                       _________    _____                    The first  Mathews factor  involves a  specification of                               _______          "the  private interest  that  will be  affected  by the  official          action . . . ."  Id. at 335.  Rehashing this point would serve no                           ___          useful  purpose.   We conclude,  for  precisely the  same reasons                                          6          articulated in our earlier opinion, that the IRPAs have a salient          private interest in the fees due them for services rendered.  See                                                                        ___          Nineteen Appeals, 982 F.2d at 612.          ________________                    The second  Mathews factor  requires us to  examine the                                _______          risk  of error presented by the district court's procedures.  See                                                                        ___          Mathews, 424  U.S. at 335.   The last  time around  we determined          _______          that the hearing format invited error.  See Nineteen Appeals, 982                                                  ___ ________________          F.2d at 612-13.  Appellants urge  us to find that the proceedings          on remand represented no real  improvement and again presented an          intolerable  risk of error   this time because the district court          refused  to  hold  an  evidentiary hearing,  to  allow  free-form          discovery, or  to permit cross-examination  of PSC  members.   We          conclude, for reasons  described more fully in Part II(B), infra,                                                                     _____          that  the format revisions cured  the infirmities that  led us to          invalidate the district court's earlier effort.                    The third Mathews factor  necessitates an assessment of                              _______          the  public  interest, including  "the fiscal  and administrative          burdens"  that  improved  procedural requirements  would  entail.          Mathews,  424 U.S.  at 335.   Here,  too, past  is prologue:   we          _______          studied this point in the course of the first appeal and remarked          the  "substantial  governmental  interest  in  conserving  scarce          judicial resources."  Nineteen Appeals, 982 F.2d at 614.  We also                                ________________          recognized the  reasonableness of  keeping tight controls  on the          fee dispute in light of the large number of lawyers involved, the          lengthy shelf life  of the  litigation, and  the Supreme  Court's          admonition  that  "[a] request  for  attorney's  fees should  not                                          7          result  in a second major litigation."  Hensley v. Eckerhart, 461                                                  _______    _________          U.S. 424,  437 (1983).   This  important public  interest remains          intact.                    To  sum  up,  the  district court  reformed  its  ways,          significantly  moderating the restrictions  originally imposed on          the  IRPAs.  The court  levelled the playing  field by permitting          the IRPAs to present their  case in precisely the same  manner as          their  litigation adversaries.    Moreover, the  court gave  both          camps adequate notice  and a meaningful opportunity  to be heard.          From  a  procedural standpoint,  then,  the  adjudicative process          employed  on remand met the test of fundamental fairness and gave          appellants the process that was due.                               B.  Abuse of Discretion.                               B.  Abuse of Discretion.                                   ___________________                    Appellants  strive  to  convince us  that  Judge Acosta          abused  his discretion  in  authoring  three procedural  rulings,          namely,  (1) denying  appellants'  entreaty  that an  evidentiary          hearing  be  held;  (2)  denying  the  bulk  of  their  discovery          requests;  and   (3)  denying   them  the  privilege   of  cross-          examination.  We are not persuaded.                    1.  Lack of an Evidentiary Hearing.  We need  not tarry                    1.  Lack of an Evidentiary Hearing.                        ______________________________          over the  supposed  error  in  refusing to  hold  an  evidentiary          hearing.3   A  district  court  is  not  obliged  to  convene  an                                        ____________________               3The lower court did not make this decision casually.  After          reminding the protagonists of  his "detailed first hand knowledge          of the  proceedings," Judge Acosta observed  that "any meticulous          fact-finding  regarding the contemporaneous  time records  of the          PSC  is   unnecessary  because  the  lodestar   method  has  been          abandoned;  and both parties have been granted the opportunity to          file extensive  pleadings describing  their contributions  to the                                          8          evidentiary hearing as a means of resolving every attorneys'  fee          dispute.   See Nineteen Appeals,  982 F.2d at  614; Weinberger v.                     ___ ________________                     __________          Great  N. Nekoosa  Corp.,  925 F.2d  518,  528 (1st  Cir.  1991).          ________________________          Because evidentiary  hearings in fee disputes  are not mandatory,          the decision not to convene one is  reviewed deferentially, using          an  abuse-of-discretion standard.   See  Weinberger, 925  F.2d at                                              ___  __________          527.    In conducting  that  review,  appellate tribunals  cannot          woodenly apply a preconceived matrix.  Rather, flexibility is the          watchword.  Because a district court has available to it  a "wide          range  of  procedures" through  which it  can  "bring a  sense of          fundamental  fairness to the  fee-determination hearing  while at          the  same  time  husbanding  the  court's  resources,"   Nineteen                                                                   ________          Appeals,   982  F.2d  at  614,  flexibility  implies  substantial          _______          discretion.    Therefore,  when   the  court  chooses  among  the          available options, it can mix and match.                    This  emphasis on  flexibility  is  heightened when  an          evidentiary  hearing is requested.   Even in  situations far more          inviting than  fee disputes, we  have been chary  about mandating          such hearings.   See, e.g.,  Aoude v.  Mobil Oil Corp.,  862 F.2d                           ___  ____   _____     _______________          890,  894 (1st  Cir.  1988) (observing  that  matters often  "can          adequately be `heard'  on the  papers").  We  favor a  "pragmatic          approach"  to the question of  whether, in a  given situation, an          evidentiary   hearing  is  required.    Id.  at  893.    The  key                                                  ___                                        ____________________          litigation process."  He  also stated that, "for the  most part,"          the  fee  controversy  presented "no  material  factual  disputes          regarding  the tasks undertaken by the PSC as contrasted to those          undertaken by the IRPAs."                                          9          determinant is  whether, "given  the nature and  circumstances of          the case  . . . the  parties [had] a fair  opportunity to present          relevant facts and  arguments to  the court, and  to counter  the          opponents'  submissions."  Id. at  894.  Taking  this approach in                                     ___          Aoude, we upheld the issuance of a preliminary injunction without          _____          an evidentiary  hearing, noting, inter  alia, that the  judge was                                           _____  ____          "obviously familiar" with the facts and  had afforded the parties          several opportunities to make written submissions.  Id.                                                              ___                    The Aoude model can readily  be adapted to requests for                        _____          hearings  anent  attorneys'  fees.   Appellants'  protest  cannot          survive the  resultant comparison.   Judge  Acosta knew  the case          inside  and out.  He  gave the protagonists  ample opportunity to          present both factual data  and legal arguments.   He set no  page          restrictions  on  written  submissions, permitting  the  IRPAs to          proffer thousands of pages of documents both in opposition to the          PSC's requisitions and  in support  of their  own fee  requests.4          These filings  allowed the  IRPAs to go  into painstaking  detail          both as to their own contribution to the litigation and as to the          reasons why the PSC members deserved a relatively modest slice of                                        ____________________               4To  give the  reader a  taste of  what transpired,  we note          that,  on remand, the  IRPAs' initial submission,  filed June 10,          1993, included a  memorandum of law regarding attorneys' fees and          expenses (110  pages, with a  40-page appendix), an  affidavit by          the IRPAs'  accountant, William Torres, detailing  the results of          his  analysis of  the PSC's claims  (approximately 650  pages), a          memorandum giving  an overview  of the efforts  and contributions          made  by the IRPAs (33 pages), and individual IRPA assessments of          efforts   and   contributions   made   on   behalf   of   clients          (approximately 2700 pages).  The IRPAs also filed a reply  to the          PSC's  main submission,  again  unhampered by  page restrictions,          that totalled approximately 430 pages.                                          10          the pie for their services in that capacity.                    To be  sure, this  is a  high-stakes dispute,  but that          fact,  in and of itself,  does not warrant  handcuffing the trial          court.  Matters  of great consequence  are often decided  without          live  testimony.   See,  e.g., id.  at  893-94 (holding  that  an                             ___   ____  ___          evidentiary  hearing   is  not   obligatory  in  respect   to  an          application  for  preliminary   injunction);  United  States   v.                                                        ______________          DeCologero,  821 F.2d  39, 44  (1st  Cir. 1987)  (same, regarding          __________          criminal defendant's motion to reduce his sentence); Amanullah v.                                                               _________          Nelson, 811 F.2d 1, 16-17 (1st Cir. 1987) (same, regarding habeas          ______          review  of   asylum   applicant's  detention   during   exclusion          proceedings).  In the last analysis, what counts is not the prize          at  stake,   but   whether   particular   parties   received   "a          fundamentally fair chance to present [their] side  of the story."          Nineteen Appeals, 982 F.2d at 611.            ________________                    The controlling legal principle,  then, is that parties          to a  fee dispute do not have the right to an evidentiary hearing          on demand.  When the written record affords an adequate basis for          a reasoned determination  of the  fee dispute, the  court in  its          discretion  may  forgo  an  evidentiary hearing.    Here,  it  is          pellucid  that  the   litigants'  extensive  written  submissions          comprised  an   effective  substitute   for  such  a   hearing             particularly since the judge had  lived with the litigation  from          the  start and had an encyclopedic knowledge  of it.  Under these          circumstances,  the court  did not  err in  refusing to  hold yet          another  hearing.  See, e.g.,  Norman v. Housing  Auth., 836 F.2d                             ___  ____   ______    ______________                                          11          1292,  1303 (11th  Cir.  1988) (upholding  propriety of  awarding          attorneys' fees  without an evidentiary hearing  "based solely on          affidavits in  the record"); Bailey  v. Heckler,  777 F.2d  1167,                                       ______     _______          1171  (6th Cir. 1985) (explaining  that an evidentiary hearing is          not  required so  long  as the  record  is sufficient  to  permit          meaningful review);  National  Ass'n  of  Concerned  Veterans  v.                               ________________________________________          Secretary  of  Defense,  675 F.2d  1319,  1330  (D.C. Cir.  1982)          ______________________          (holding that  district court  may in its  discretion decline  to          convene   a   fee   hearing  where   information   generated   by          "documentation  accompanying  the  fee  application  and  through          appropriate discovery  . . .  provides an adequate  factual basis          for  an award"); Konczak  v. Tyrrell, 603  F.2d 13, 19  (7th Cir.                           _______     _______          1979)  (indicating  that "depth  of  the briefing"  can  render a          hearing on fees unnecessary), cert. denied, 444 U.S. 1016 (1980);                                        _____ ______          see also          ___ ____          DeJesus  v. Banco Popular de P.R., 951  F.2d 3, 7 (1st Cir. 1992)          _______     _____________________          (finding no  error in  lack of an  evidentiary hearing  regarding          counsel fees absent  some "special  issue as to  which the  court          needed the assistance of counsel or witnesses").                    2.  Restrictions on Discovery.   Apart from the refusal                    2.  Restrictions on Discovery.                        _________________________          to convene  a full-scale  hearing, appellants also  complain that          the  court  demonstrated  too  great  an  aversion  to  discovery          initiatives.    But  unlimited  adversarial discovery  is  not  a          necessary   or even  a usual   concomitant  of fee disputes,  see                                                                        ___          National Ass'n of  Concerned Veterans, 675  F.2d at 1329  (noting          _____________________________________          that,  in general, fee contests  should not involve  "the type of                                          12          searching discovery that  is typical where  issues on the  merits          are presented"), and, in the circumstances of this case, we think          that the court acted  well within the province of  its discretion          in refusing to allow more elaborate discovery.                     The Due  Process Clause does  not require  freewheeling          adversarial discovery as standard equipment in fee contests.  See                                                                        ___          Nineteen Appeals, 982  F.2d at  614.  This  case exemplifies  the          ________________          wisdom of  the rule.   The district  court did not  shut off  all          discovery,  and   the  procedures  that  the   court  employed             especially the compelled  exchange of  documentation    minimized          the need for  additional discovery  by giving the  IRPAs the  raw          material  that they needed to sift through the particulars of the          PSC's  fee application.  In  other words, the  court ensured that          the  IRPAs had  access to  all the  data reasonably  necessary to          formulate  their  objections,5  including all  the  PSC  members'          time-and-expense   submissions,   summaries   thereof,   detailed          accounts of the procedures used by the PSC to gather, review, and          audit time  records, and the working  papers, correspondence, and          documentation  generated  by  the  PSC's  accountants  during the          compilation  process.   With this  banquet of  information spread          before them, appellants then partook of the court's liberality in          allowing them to formulate extensive written submissions.                    Furthermore,  the  court  below  also had  a  right  to                                        ____________________               5The proof  of the  pudding is  in the  record.   The IRPAs'          initial submission  to  the district  court highlighted  specific          objections to  the PSC's fee  request, and,  following the  PSC's          rejoinder, the IRPAs' reply  took precise aim at the  accuracy of          the supporting materials.                                          13          consider the  extent to  which appellants' request  for discovery          threatened to multiply  the proceedings and turn  the fee dispute          into  a   litigation  of  mammoth  proportions.     Judge  Acosta          characterized the  IRPAs'  discovery foray    which  encompassed,          inter  alia, production of tax  returns for employees  of all PSC          _____  ____          members' firms  and  details  anent  fringe  benefits  (including          vacations,  maternity  leaves,  and  the  provision  of  training          programs)   as  "a discovery scheme of needless  and unreasonable          proportions."    It  is  surpassingly  difficult  to  fault  this          characterization.                    The sweeping  nature  of appellants'  request,  coupled          with  the fact that  the focus of  the hearings had  shifted away          from the lodestar  and toward a  task-oriented assessment of  the          lawyers' participation  in the litigation, give  substance to the          district  court's fears  that  granting appellants'  supplication          would have  started the  parties on  the road  to a  wasteful and          time-consuming "satellite litigation."  On  this ramified record,          appellants  can demonstrate  neither  a high  level  of need  for          incremental discovery nor preponderant equities in favor of their          request.  Hence, we  cannot say that the district  court's denial          of  further  discovery  constituted   an  abuse  of  the  court's          considerable discretion.  See,  e.g., National Ass'n of Concerned                                    ___   ____  ___________________________          Veterans, 675 F.2d at 1329 (holding that  district court "retains          ________          substantial  discretion based on its view of the submissions as a          whole" to limit further discovery).                    3.   Lack of Cross-Examination.   As a  subset of their                    3.   Lack of Cross-Examination.                         _________________________                                          14          claims regarding  the supposed necessity for  both an evidentiary          hearing  and additional  discovery, appellants  contend that  the          district court should have allowed them to cross-examine  the PSC          members  concerning   the  hours  that  they   logged  and  their          contribution to the creation of the Fund.  This is merely a back-          door  attempt  to  rekindle  an extinguished  flame  and  satisfy          appellants' thwarted desire for  either an evidentiary hearing or          extensive depositions.                    In  Chongris v.  Board  of Appeals,  811  F.2d 36  (1st                        ________     _________________          Cir.), cert. denied, 483 U.S. 1021  (1987), we held that, in  the                 _____ ______          context  of an administrative  hearing, lack of cross-examination          did not work a violation of due  process.  See id. at 41-42.   So                                                     ___ ___          it is here.   Moreover, because the lower court  could reasonably          conclude  that   its  liberal  policy  with   regard  to  written          submissions,  in  conjunction  with  the  IRPAs'  access  to  PSC          documentation, obviated  the need for further  probing via cross-          examination, pretermitting cross-questioning  did not  constitute          an abuse  of discretion.  Cf. Copeland v. Marshall, 641 F.2d 880,                                    ___ ________    ________          905 n.57 (D.C.  Cir. 1980) (en banc) (noting that  a live hearing          is  not necessary if "the adversary papers filed by plaintiff and          defendant . . . adequately illuminate the factual predicate for a          reasonable fee").                    Appellants' attempt  to anchor  their claimed  right to          cross-question PSC members on language excerpted from our earlier          opinion, see, e.g.,  Nineteen Appeals,  982 F.2d  at 615,  leaves                   ___  ____   ________________          them  adrift.   We  flatly  reject  the  suggestion, noting  that                                          15          appellants, to their discredit, have pieced the argument together          by  cutting  words  loose   from  their  logical  and  contextual          moorings, and ignoring  limiting language that contradicts  their          interpretation.                    The  bottom line is that the district court did not err          in  refusing  to convene  an  evidentiary  hearing, declining  to          permit   more  wide-ranging   discovery,   and   barring   cross-          examination.  Thus, whether the issue is cast in a constitutional          mold   or  considered   under   an  abuse-of-discretion   rubric,          appellants'  challenge  fails.    Either  way,  the  adjudicative          process employed on remand passes muster.            III.  APPROPRIATENESS OF THE METHODOLOGY          III.  APPROPRIATENESS OF THE METHODOLOGY                    Appellants  claim that  the district  court erred  as a          matter  of law  in  embracing the  POF  method, rather  than  the          lodestar  method, during  the fee-setting  pavane.  The  issue of          whether  a  district  court  may  use   a  given  methodology  in          structuring an award of attorneys' fees is one of law, and, thus,          is  subject to  de novo  review.   See Liberty  Mut. Ins.  Co. v.                          __ ____            ___ _______________________          Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).          _________________________                             A.  Historical Perspective.                             A.  Historical Perspective.                                 ______________________                    A  few  introductory  comments  may  lend  a  sense  of          perspective.  Traditionally, under  what has come to be  known as          the  "American Rule," litigants bear their own counsel fees.  See                                                                        ___          Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 245          __________________________    ________________          (1975).    This rule  is  not without  exceptions.   Fee-shifting          statutes  comprise one  category of  exceptions.   See,  e.g., 42                                                             ___   ____                                          16          U.S.C.    1988, 2000e-5(k).  So, too, certain equitable doctrines          furnish  a basis  for  departing from  the  American Rule.    See                                                                        ___          Nineteen Appeals, 982 F.2d at 606.          ________________                    When  statutory  exceptions pertain,  we  have directed          district courts, for the most part,  to compute fees by using the          time-and-rate-based lodestar method.  See, e.g., United States v.                                                ___  ____  _____________          Metropolitan Dist. Comm'n, 847 F.2d 12, 15 (1st Cir. 1988); Segal          _________________________                                   _____          v. Gilbert Color Sys., Inc., 746  F.2d 78, 85-86 (1st Cir. 1984);             ________________________          see also  City of  Burlington  v. Dague,  112 S.  Ct. 2638,  2641          ___ ____  ___________________     _____          (1992) (acknowledging, in the statutory  fee-shifting context, "a          strong  presumption that the  lodestar represents  the reasonable          fee")  (citation and internal quotation marks  omitted).  A court          arrives at  the  lodestar  by determining  the  number  of  hours          productively spent on the  litigation and multiplying those hours          by reasonable hourly rates.   See Blum v. Stenson,  465 U.S. 886,                                        ___ ____    _______          896-902  (1984); Hensley, 461 U.S. at 433; Lipsett v. Blanco, 975                           _______                   _______    ______          F.2d 934, 937 (1st Cir. 1992).                    Although  the  lodestar  method  is  entrenched in  the          statutory fee-shifting  context, a growing number  of courts have          looked  elsewhere  in  "common  fund" cases     a  category  that          encompasses cases in which  "a litigant or 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                           __________      __________                                          17          (1980).6    The  POF   method  represents  one  such  alternative          approach to  fee-setting.  This  method functions exactly  as the          name implies:  the court shapes  the counsel fee based on what it          determines  is a reasonable percentage  of the fund recovered for          those benefitted by the  litigation.  See, e.g., Camden  I Condo.                                                ___  ____  ________________          Ass'n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991).          ___________    ______                    Contrary to popular belief,  it is the lodestar method,          not the POF  method, that breaks from precedent.   Traditionally,          counsel fees in common  fund cases were computed as  a percentage          of   the  fund,   subject,  of   course,  to   considerations  of          reasonableness.  See, e.g., Central R.R. & Banking Co. v. Pettus,                           ___  ____  __________________________    ______          113 U.S. 116, 127-28 (1885).  It was not until the mid-1970s that          judicial infatuation with the  lodestar method started to spread.          See Swedish Hosp. Corp. v. Shalala, 1 F.3d  1261, 1266 (D.C. Cir.          ___ ___________________    _______          1993) (chronicling  history of the debate).  Many courts embraced          the new approach,  and a wall  of cases soon  arose.  See,  e.g.,                                                                ___   ____          Copeland,  641 F.2d at 890-91;  Furtado v. Bishop,  635 F.2d 915,          ________                        _______    ______          919-20  (1st Cir. 1980); City  of Detroit v.  Grinnell Corp., 560                                   ________________     ______________          F.2d  1093, 1098 (2d Cir. 1977); Grunin v. International House of                                           ______    ______________________          Pancakes,  513 F.2d 114, 128  (8th Cir.), cert.  denied, 423 U.S.          ________                                  _____  ______          864 (1975);  Lindy Bros. Builders,  Inc. v.  American Radiator  &                       ___________________________     ____________________                                        ____________________               6The  common  fund  doctrine  is founded  on  the  equitable          principle  that those  who have  profited from  litigation should          share  its costs.  While  class actions furnish  the most fertile          ground for the doctrine, its reach  is not limited to such cases.          See  Sprague  v. Ticonic  Nat'l Bank,  307  U.S. 161,  167 (1939)          ___  _______     ___________________          (holding that "the  absence of an avowed class suit  . . . hardly          touch[es] the power of equity in doing justice as between a party          and the beneficiaries of his litigation").                                          18          Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973).          _______________________                    A crack in the  wall appeared in 1984 when  the Supreme          Court  took pains to distinguish the  calculation of counsel fees          under fee-shifting statutes from  the calculation of counsel fees          under the common fund  doctrine.  The court described  the latter          group as comprising cases in which "a reasonable fee  is based on          a percentage of the fund bestowed on the class."   Blum, 465 U.S.                                                             ____          at 900 n.16.  Since Blum involved the application of the lodestar                              ____          under a fee-shifting statute, footnote 16 is dictum.  Yet, it can          hardly be dismissed as a slip  of the pen, and considered  dictum          emanating from  the High  Court carries great  persuasive force.7          See  Dedham Water Co. v.  Cumberland Farms Dairy,  Inc., 972 F.2d          ___  ________________     _____________________________          453, 459 (1st Cir. 1992) (stating general rule that courts should          give "considerable weight" to  dictum that appears "considered as          opposed to casual"); McCoy  v. Massachusetts Inst. of Technology,                               _____     _________________________________          950 F.2d 13, 19 (1st Cir. 1991) (same), cert. denied,  112 S. Ct.                                                  _____ ______          1939 (1992).                    Hard on  the heels of  footnote 16, the  Third Circuit,          which  had been  in  the forefront  of  the movement  toward  the          lodestar method, see, e.g., Lindy Bros., supra, sounded a note of                           ___  ____  ___________  _____          caution.   Its  blue-ribbon  task  force,  although  recommending          continued use of the lodestar technique in statutory fee-shifting                                        ____________________               7For this  reason, we find it unsurprising that other courts          have  cited  footnote  16  as  evidence  that  the  Blum  Court's                                                              ____          "approval of the lodestar method in  the fee-shifting context was          not intended to overrule prior common fund cases. . . ."  Swedish                                                                    _______          Hosp.,  1 F.3d at 1268; see also Brown v. Phillips Petroleum Co.,          _____                   ___ ____ _____    ______________________          838 F.2d 451, 454 (10th Cir.), cert. denied, 488 U.S. 822 (1988).                                         _____ ______                                          19          cases,  concluded that all fee awards in common fund cases should          be  structured as a  percentage of the  fund.  See  Report of the                                                         ___          Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D.                                    ___________________________          237, 255 (1985) (hereinafter "Third Circuit Report").                    Together, footnote 16 and  the Third Circuit Report led          to a  thoroughgoing reexamination of the suitability of using the          lodestar method in  common fund  cases.   This reexamination,  in          turn, led to more frequent application  of the POF method in such          cases.  See Federal Judicial Center, Awarding Attorneys' Fees and                  ___                          ____________________________          Managing Fee Litigation  63-64 (1994) (hereinafter "FJC  Report")          _______________________          (canvassing  case law).  Today, the D.C. Circuit and the Eleventh          Circuit require the  use of the POF method  in common fund cases,          see Swedish Hosp., 1 F.3d at 1271; Camden I, 946 F.2d at 774, and          ___ _____________                  ________          four other circuits confer discretion upon the  district court to          choose between the lodestar and POF methods in common fund cases,          see In re Washington Pub. Power  Supply Sys. Sec. Litig., 19 F.3d          ___ ____________________________________________________          1291, 1295 (9th Cir.  1994); Rawlings v. Prudential-Bache Props.,                                       ________    ________________________          Inc., 9 F.3d 513, 516 (6th Cir. 1993); Harman v. Lymphomed, Inc.,          ____                                   ______    _______________          945  F.2d 969, 975 (7th  Cir. 1991); Brown  v. Phillips Petroleum                                               _____     __________________          Co., 838 F.2d  451, 454 (10th  Cir.), cert. denied, 488  U.S. 822          ___                                   _____ ______          (1988).   We  have yet  to pass  upon the  legitimacy of  the POF          method in common fund cases.8                                        ____________________               8Of course, we alluded to the trend in Weinberger, stating:                                                      __________                    We  are aware  of the  tendency  exhibited by                    some  courts,  particularly  in  common  fund                    cases, to jettison the lodestar in favor of a                    `reasonable  percent  of the  fund' approach.                    Because the  absence of any true  common fund                                          20                       B.  Computing Fees in Common Fund Cases.                       B.  Computing Fees in Common Fund Cases.                           ___________________________________                    We  have previously  classified this  as a  common fund          case.9   Appellants do not  dispute this  taxonomy, but,  rather,          they  insist  that Judge  Acosta erred  in  using the  POF method          because the lodestar technique should hold sway in all attorneys'                                                             ___          fee  determinations.10    Though  appellants  concede  that  this                                        ____________________                    renders  the  percentage approach  inapposite                    here,  we cannot  fault the  district court's                    implied  premise that  the  lodestar  is  the                    soundest available alternative.          Weinberger,  925  F.2d at  526  n.10 (citations  omitted).   This          __________          statement  has  been  interpreted as  conferring  discretion upon          district courts to use the POF method  in common fund cases, see,                                                                       ___          e.g., Wells v.  Dartmouth Bancorp,  Inc., 813 F.  Supp. 126,  129          ____  _____     ________________________          (D.N.H. 1993), and, in some quarters, as indicating  a preference          for the use of that method, see, e.g., FJC Report, supra, at 64 &                                      ___  ____              _____          n.305.               9We reached  this conclusion because the  Fund emanates from          "the disproportionate strivings of a few (the PSC members) to the          benefit   of  a   much   larger  number   (the  plaintiffs   and,          derivatively, the IRPAs)," Nineteen Appeals, 982 F.2d at 610, and                                     ________________          possesses   each  of  the  three  distinguishing  characteristics          identified by the Boeing Court:                            ______                    First,  the   .  .  .  beneficiaries  can  be                    determined with complete assurance.   Second,                    while the  extent  to which  each  individual                    plaintiff and each  IRPA benefitted from  the                    PSC's  efforts  cannot  be   quantified  with                    mathematical  precision,  it  is possible  to                    study the PSC's  contribution to the  overall                    success of the litigation and approximate the                    incremental  benefits   with  some  accuracy.                    Finally,  the  district  court controls  [the                    Fund],  and,  therefore, possesses  the ready                    ability to prorate the  cost of achieving the                    incremental benefits in an equitable manner.          Id. (citing Boeing, 444 U.S. at 478-79).          ___         ______               10In  a sermon  that  is difficult  to  reconcile with  this          display  of newfound  religion, appellants  preach intermittently          that  Judge Acosta's  initial suggestion    that  the  PSC's fees                                          21          court  has not  yet  decided  what  method(s) of  fee  allocation          appropriately may  be invoked in  common fund cases,  they assert          that  the lodestar is  a far better alternative  and that its use          should be mandated in this circuit.                    We think  that a more malleable  approach is indicated.          Thus, we hold  that in a common fund case  the district court, in          the exercise  of its  informed discretion, may  calculate counsel          fees either  on a percentage of the fund basis or by fashioning a          lodestar.   Our decision is  driven both by  our recognition that          use  of the  POF method  in common  fund cases is  the prevailing          praxis and by  the distinct  advantages that the  POF method  can          bring to bear in such cases.                    In  complex litigation   and  common fund cases, by and          large, tend  to  be complex     the POF  approach is  often  less          burdensome to administer than  the lodestar method.  See  Swedish                                                               ___  _______          Hosp.,  1 F.3d at 1269  (finding POF approach  "less demanding of          _____          scarce  judicial resources").   Rather than forcing  the judge to          review the time records of  a multitude of attorneys in  order to          determine  the   necessity  and  reasonableness   of  every  hour          expended, the POF method permits the judge to focus on "a showing          that  the fund conferring a  benefit on the  class resulted from"          the lawyers' efforts.  Camden I, 946 F.2d at 774.  While the time                                 ________                                        ____________________          would  probably be  computed  using  the  POF  method  and  would          probably  aggregate "less  than 10%"    should  be enshrined  and          enforced by us.  We have already ruled  that this suggestion "did          not  bind  the district  court to  a  ten percent  cap," Nineteen                                                                   ________          Appeals, 982 F.2d  at 612, and appellants have  proffered nothing          _______          that prompts us to revisit this ruling.                                          22          logged is still relevant to the court's inquiry   even under  the          POF method, time  records tend to illuminate  the attorneys' role          in  the creation  of  the fund,  and,  thus, inform  the  court's          inquiry into  the reasonableness  of a particular  percentage11            the shift in focus lessens the possibility of collateral disputes          that  might transform  the  fee proceeding  into  a second  major          litigation.                    For another  thing, using  the POF method  in a  common          fund  case enhances efficiency, or, put in the reverse, using the          lodestar method in  such a case  encourages inefficiency.   Under          the latter approach, attorneys not only have a monetary incentive          to spend as  many hours as possible (and bill  for them) but also          face a  strong  disincentive  to early  settlement.    See  Third                                                                 ___          Circuit  Report, 108 F.R.D.  at 247-48  (finding that,  in common          fund cases,  the lodestar method "encourag[es]  lawyers to expend          excessive  hours"  and  "creates  a disincentive  for  the  early          settlement of  cases"); see also  FJC Report, supra, at  310.  If                                  ___ ____              _____          the  POF  method  is  utilized, a  lawyer  is  still  free to  be          inefficient  or to drag her feet in pursuing settlement options            but, rather  than being rewarded for  this unproductive behavior,          she will likely reduce her own return on hours expended.                    Another  point  is  worth  making:    because  the  POF          technique is  result-oriented  rather than  process-oriented,  it                                        ____________________               11For this reason,  and because  the district  court in  any          given case may  eschew the POF  method in favor  of the  lodestar          method, we urge attorneys  to keep detailed, contemporaneous time          records in common fund cases.                                          23          better approximates the  workings of the  marketplace.  We  think          that  Judge Posner  captured the  essence of  this point  when he          wrote that "the market in fact pays not  for the individual hours          but for  the ensemble  of services  rendered  in a  case of  this          character."   In re Continental  Ill. Sec. Litig.,  962 F.2d 566,                        ___________________________________          572 (7th  Cir. 1992).   In fine, the  market pays for  the result          achieved.                    Let us be perfectly clear.   We do not pretend that the          POF  approach   is  foolproof,  or   that  it  suffers   from  no          disadvantages.      For   example,   it   may   result   in   the          overcompensation  of  lawyers  in  situations  where actions  are          resolved  before   counsel  has  invested   significant  time  or          resources.  See  Six Mexican Workers  v. Arizona Citrus  Growers,                      ___  ___________________     _______________________          904  F.2d  1301, 1311  (9th Cir.  1990)  (counselling use  of the          lodestar method rather than  the POF method when "the  percentage          recovery  would be either too small or  too large in light of the          hours devoted to the  case or other relevant factors");  see also                                                                   ___ ____          Third Circuit Report,  108 F.R.D. at 242  (noting "criticism from          within the  profession" that fees under the  POF method sometimes          are   "disproportionate  to   actual  efforts  expended   by  the          attorneys").  The  converse is also true;  law firms may  be less          willing to  commit needed  resources to  common fund cases,  even          those  for  the  public  benefit,  if  the   likely  recovery  is          relatively  small.   It can  also be  argued that  the percentage          method  may lend itself to  arbitrary fee awards  by some courts.          See  generally  Washington  Pub.  Power,  19  F.3d  at  1294  n.2          ___  _________  _______________________                                          24          (counselling that, to avoid arbitrary fee awards, neither the POF          nor  the lodestar  method "should  be applied  in a  formulaic or          mechanical fashion"); cf. Laffey  v. Northwest Airlines Inc., 746                                ___ ______     _______________________          F.2d 4,  12-13 (D.C. Cir. 1984)  (attributing widespread adoption          of   lodestar  method   to   desire  to   reduce   "arbitrariness          characteristic  of court  awards of  attorneys fees"  under other          methods),  cert.  denied,  472  U.S.  1021  (1985).    Given  the                     _____  ______          peculiarities of common fund cases and the fact that each method,          in  its own  way, offers  particular advantages,  we believe  the          approach  of choice is to accord the district court discretion to          use whichever method,  POF or lodestar, best  fits the individual          case.   We  so  hold, recognizing  that  the discretion  we  have          described  may, at  times, involve  using a  combination  of both          methods  when appropriate.   Cf.  Metropolitan Dist.  Comm'n, 847                                       ___  __________________________          F.2d  at  15 (advocating  flexible  approach  to determining  fee          awards because an overly  mechanical rule "sacrifice[s] substance          on the altar of form").                      In  arriving at this  decision, we reject appellants'          suggestion that Dague,  a case in which the Court  barred the use                          _____          of  contingency enhancements in respect to fee-shifting statutes,          compels a different conclusion.  Although the Dague  Court stated                                                        _____          that  "[t]he `lodestar' figure has,  as its name suggests, become          the guiding light of our fee-shifting jurisprudence,"  112 S. Ct.          at  2641,  and  remarked that  it  had  "generally"  abjured "the          contingent-fee  model     which  would  make   the  fee  award  a          percentage  of the  value of  the relief  awarded in  the primary                                          25          action     [in  favor  of]  the  lodestar  model,"  id.  at  2643                                                              ___          (citations,  footnotes, and  internal quotations  omitted), these          statements were made in  the course of a discussion  of statutory          fee-shifting  cases.    The  Court's  reasoning   reflected  this          environment;  the  opinion  stressed  the  limiting  effects   of          statutory language in fee-shifting cases, see id., and set out "a                                                    ___ ___          number of reasons for  concluding that no contingency enhancement          is compatible with the fee shifting statutes at issue," id.  This                                                                  ___          case,  unlike  Dague,  involves  a  common  fund  rather  than  a                         _____          statutory fee-shifting  scheme.   Since Dague, fairly  read, does                                                  _____          not  require abandonment  of  the POF  method  typically used  in          common  fund cases, it is  not controlling here.   Accord Swedish                                                             ______ _______          Hosp., 1 F.3d at  1267-70 (concluding that Dague does not bar use          _____                                      _____          of the POF method in common fund cases).                                C.  Applying the Rule.                                C.  Applying the Rule.                                    _________________                    Having placed our imprimatur on a decisional model that          maximizes flexibility, we  move from the general to  the specific          and turn next to the order  under review.  In this connection, we          rule that  the court below did  not err in purposing  to allocate          fees  based  on  the   POF  method,  emphasizing  the  attorneys'          "relative  contribution" to  the creation  of the  Fund.   In the          first  place, Judge  Acosta had  originally stated  an  intent to          compensate the  PSC  members under  a percentage  approach.   See                                                                        ___          supra  note 10.  In "justifiable reliance" on this statement, see          _____                                                         ___          Nineteen Appeals, 982 F.2d at 614 n.19, the majority of the IRPAs          ________________          did  not maintain  time records.    The difficulties  inherent in                                          26          implementing the  lodestar under these circumstances  militate in          favor  of sticking to the POF method.  In the second place, as we          have  explained  above,  the  POF   approach  offers  significant          structural  advantages in  common fund  cases, including  ease of          administration,  efficiency, and  a  close approximation  of  the          marketplace.   Finally,  a further case-specific  factor counsels          against using the lodestar here.   Unlike the prototypical common          fund case, this case involves a subdivision of a fee fund amassed                                          ___________          by the operation of  sundry contractually determined percentages.          Thus, using the POF  method to effectuate the subdivision  of the          Fund  brings a  sort of  elemental symmetry  to   the fee-setting          process.  Relatedly, because this case calls for a subdivision of          a fee fund,  rather than a  unitary award of  fees, "a trier  who          attempted punctiliously to follow  the classic lodestar  formula,          to  the exclusion  of  all  else,  could  theoretically  wind  up          awarding the entire fee pool to  the PSC, leaving nothing for the          IRPAs."  Id.  at 614  n.20.  Use  of the POF  method negates  any                   ___          possibility of this totally indefensible result.          IV.  APPROPRIATENESS OF THE ALLOCATION          IV.  APPROPRIATENESS OF THE ALLOCATION                    In allocating counsel fees, the district court assigned          70%  of the Fund  to the PSC,  leaving 30% to be  split among the          IRPAs.12    Appellants object.    We review  this  allocation for          abuse of discretion, see, e.g., Foley v. City of Lowell, 948 F.2d                               ___  ____  _____    ______________          10,  18 (1st Cir. 1991), mindful that,  in respect to fee awards,                                        ____________________               12The  PSC members  will, of  course,  share ratably  in the          latter portion of the award as well.  See supra note 2.                                                ___ _____                                          27          the  trial court's  latitude is  "extremely broad,"  Lipsett, 975                                                               _______          F.2d at  937.   After scrutinizing  the Brobdingnagian  record in          this  case,  we  are convinced  that  the  court  below erred  in          weighing  and synthesizing the factors  relevant to a division of          the fees, and in settling upon so lopsided a split.                                 A.  Cutting the Pie.                                 A.  Cutting the Pie.                                     _______________                    In  the proceedings  on remand,  Judge  Acosta lavished          praise  on all the plaintiffs' lawyers, lauding the "high caliber          legal representation" provided by both the PSC and the IRPAs.  He          then summarized the tasks undertaken by the two sets of attorneys          in the  course of the litigation.  In the judge's view, the PSC's          most  significant  accomplishments   included  (1)  performing  a          comprehensive  on-site investigation  of the accident  scene, (2)          "identif[ying] the  manufacturers  and suppliers  of many  . .  .          products  and  services  .  .  .  and  develop[ing]  theories  of          liability   against  each   opponent,"  (3)   drafting  plethoric          pleadings, including the  master complaint,  weekly agendas,  and          several pretrial  memoranda,  (4) filing  "literally hundreds  of          motions  . .  .  on numerous  topics,  including many  novel  and          creative issues," (5) orchestrating extensive pretrial discovery,          (6) conducting the nine-week Phase I trial and  the fifteen-month          Phase  II  trial (in  the  course  of which  the  PSC  called 313          witnesses  and offered  1,455  exhibits),  and (7)  "aggressively          pursu[ing] settlement negotiations."   The  court visualized  the          IRPAs' main accomplishments as comprising (1)  maintaining direct          client  communication,  counselling  clients,  and  keeping  them                                          28          abreast of  developments in the litigation, (2)  carrying out the          factual investigation incident to individual cases, with especial          emphasis on issues pertaining  to damages, (3) retaining experts,          including  physicians, economists, and  actuaries, and,  once the          experts had  been located,  collaborating with them  to establish          damages,  (4)  researching  client-specific legal  issues  (e.g.,                                                                      ____          standing,   assumption  of  risk),  (5)  representing  individual          plaintiffs  in  connection  with  ancillary   matters,  including          probate, inheritance, insurance,  and domestic relations matters,          (6)  meeting with Judge Bechtle "as part of the settlement scheme          to negotiate  settlement values for [individual]  cases," and (7)          assisting  clients  in  reaching  informed  decisions  (including          decisions   about   whether  to   accept   or  reject   proffered          settlements).  Moreover, certain selected plaintiffs were used as          exemplars for purposes of  the Phase II trial, and  the IRPAs who          represented  those plaintiffs  actually  presented  the  evidence          pertaining to their clients' damages.                    Having  made these ledger  entries, the  district court          then  tabulated  the  columns.   It  concluded  that  "reasonable          compensation for the work  undertaken requires recognition of the          massive undertaking of the PSC in terms of the organizational and          financial   requirements,   the  overwhelming   amount   of  work          performed,  the significant  time constraints,  and the  numerous          complex and novel issues  addressed during the proceedings .  . .          ."   Contrasting this workload "with the IRPAs' efforts in client          communication and counseling, client preparation  for settlement,                                          29          and  handling of the damages  issues," the court  awarded the PSC          70% of the  fee due under each  individual contingency agreement,          thus permitting each IRPA to retain only 30%  of the fee promised          by the client.                        B.  Evaluating the Court's Handiwork.                        B.  Evaluating the Court's Handiwork.                            ________________________________                    We are uneasy with the way in which the lower court cut          the fee pie, and with the size and shape of the resultant wedges,          for several reasons.                    First, we are troubled by  the implications of a scheme          in which the trial judge selects  a chosen few from many  lawyers          who  volunteer,  assigns  legal   tasks  to  those  few  (thereby          dictating, albeit indirectly, the scope of the work  remaining to          be  done  by  the many),  and  then,  in  awarding fees,  heavily          penalizes  the very lawyers to whom he has relegated the "lesser"          duties.  Courts must recognize that while such an arrangement may          be a necessary  concomitant to skillful  case management of  mass          tort  suits,  it nevertheless  significantly  interferes  with an          attorney's expectations regarding the fees that his or her client          has  agreed to  pay.    Conversely,  lead counsel  are  typically          volunteers, as  in this case, and, as such, they have no right to          harbor any expectation beyond a fair  day's pay for a fair  day's          work if a  fee fund  develops.  Cf.  Matthew 20:1-16  (recounting                                          ___  _______          parable of the laborers in the vineyard).  We believe that  trial          courts should  take these differing expectations  into account in          allocating fees.   Here, the  judge's rescript  does not  suggest          that he factored these expectations into the decisional calculus.                                          30                    Courts must  also be  sensitive  to a  second facet  of          economic  reality:  the power  to appoint lead  counsel gives the          trial judge an unusual  degree of control over the  livelihood of          the  lawyers  who   practice  before  the  court.    Though  such          appointments  are often  an  administrative necessity  in complex          litigation, and disproportionate fees are at times an unavoidable          consequence of the classic common fund  "free rider" problem, see                                                                        ___          generally  Mancur  Olson, Jr.,  The  Logic  of Collective  Action          _________                       _________________________________          (1971),  the  judge  must  attempt to  avoid  any  perception  of          favoritism.    This  need  is  especially  acute  in  mass   tort          litigation where,  as this case illustrates,  free rider concerns          are minimized by  the important nature of the work  to be done by          claimants'  individually  retained  attorneys.    In  this  case,          moreover,  free rider concerns are also lessened by the fact that          most  of  the  IRPAs applied  for  appointment  to  the PSC,  see                                                                        ___          Nineteen Appeals, 982 F.2d at 605 (noting that over 40  of the 56          ________________          IRPAs volunteered  to serve  on the PSC),  thus signifying  their          willingness to  pay full fare.   The record does  not contain any          clue  intimating that  Judge Acosta  considered these  factors in          ordering that 70% of the fees be paid to the PSC.                    Third, and relatedly, this  case required the IRPAs not          merely to go along for a free ride but to earn their keep.   They          exhibited  great  versatility,  counseling  clients,  researching          medical   histories,  arranging   for  specialists   to  evaluate          injuries, preparing  the damages  aspect of each  case (including          extensive   work   with  physicians,   psychologists,  actuaries,                                          31          vocational  specialists, and other witnesses), obtaining evidence          needed  to  prove  losses   of  earnings  and  earning  capacity,          responding  to  client-specific   discovery,  preparing  for  and          attending  clients'  depositions,  negotiating settlement  values          before Judge Bechtle, assisting clients with probate,  insurance,          and   tax  matters,   and   handling  a   bewildering  array   of          idiosyncratic problems as they developed.  This is a far cry from          the paradigmatic  common  fund case     say, a  securities  class          action   in  which class counsel  do virtually all the  work, and          other counsel piggyback  on their efforts.  See, e.g., In re Ivan                                                      ___  ____  __________          F. Boesky Sec. Litig., 948 F.2d 1358, 1364-65 (2d Cir. 1991); see          _____________________                                         ___          also  Randall S.  Thomas  & Robert  G.  Hansen, Auctioning  Class          ____                                            _________________          Action and Derivative Lawsuits:   A Critical Analysis, 87  Nw. U.          _____________________________________________________          L.  Rev.  423,  429  (1993) (explaining  that,  in  general, lead          counsel in  class actions have "substantial  authority to conduct          the  litigation,  even  to  the  exclusion  of  other  counsel");          Jonathan  R.   Macey  &  Geoffrey  P.   Miller,  The  Plaintiffs'                                                           ________________          Attorney's  Role  in  Class  Action  and  Derivative  Litigation:          _________________________________________________________________          Economic Analysis  and Recommendations for Reform, 58  U. Chi. L.          _________________________________________________          Rev.  1,  3  (1991)  (observing  that  plaintiffs'  class  action          attorneys  have   "nearly  plenary  control  over  all  important          decisions in the lawsuit" because of the absence of monitoring by          clients).     We  see  no  sign  that  the  district  court  gave          significant weight to this reality.                    This  leads  directly  to  a  fourth point.    We  have          carefully considered  the IRPAs' compendious  submissions and are                                          32          of the view that Judge Acosta undervalued the worth of the client          contact/counseling aspect of this  litigation.  Such services are          labor-intensive and  frequently low in  visibility   at  least in          visibility from the bench.   Thus, they are susceptible  to being          overlooked, leading to an overemphasis  on the relative value  of          the  court-related  work.    Despite their  lack  of  visibility,          however, the mundane chores incident to client representation are          particularly  critical in  a  mass tort  common  fund case.    We          explain briefly.                    In a securities class action many of the victims do not          participate in the lawsuit, and are aware of their loss dimly, if          at all.   See, e.g.,  Macey & Miller,  supra, at 30  (noting that                    ___  ____                    _____          "[i]n the  large-scale, small-claim  class action  context . .  .          [plaintiffs]  are typically unaware  that they even  have a claim          against  the  defendant").   The  mass  tort  context  supplies a          stunning  contrast.  In a  mass tort action,  the victims' losses          (whether of life, limb,  or loved ones) are almost  always keenly          felt, and are  usually not  amenable to computation  by a  simple          arithmetic  formula.   As  a  result,  the individual  plaintiffs          typically require a  multitude of services, many  of which cannot          be satisfied  by  an  impersonal  steering committee.    In  such          circumstances,  the  attention   of  the  individually   retained          attorneys  becomes   crucial  to  the  success   of  the  overall          enterprise.13   That  important contribution  demands appropriate                                        ____________________               13One IRPA, now deceased, made this point in a submission to          the district court:                                          33          recognition.                    Fifth, although we do  not dispute the district court's          assessment  of the quality of the PSC's work, this factor cancels          itself  out  to  some extent.    After  all,  the district  court          repeatedly commented  upon "the excellence of  the work performed          by all attorneys" (emphasis supplied), and left no doubt but that             ___          both sets of plaintiffs'  lawyers had rendered exemplary service.          Given these  widespread plaudits,  it seems manifestly  unfair to          reward excellence on the part of one group and not the other.                    Sixth,  the  district  court  failed   to  advance  any          reasoned explanation as to why it boosted  the PSC's share of the          Fund  from  52%  in the  initial  go-round  to  70% on  remand.14                                        ____________________                    In the course  of representing these clients,                    the attorneys and staff did hundreds of hours                    of  work that was  not separately  billed but                    that is a part  of the work of competent  and                    dedicated [IRPAs].  For example we helped  to                    arrange  the shipping  of bodies  from Puerto                    Rico to their homes, counseled families . . .                    to help them function as  witnesses, obtained                    [hard   to   locate]  records,   investigated                    possible  criminal   activity,  searched  for                    heirs,  negotiated  with creditors,  and with                    law  enforcement   agencies,  and  researched                    legal  issues such  as the  rights to  awards                    from the State insurance fund.               14This  discrepancy cannot  be brushed  aside with  the glib          reminder  that,  on  remand,  the district  court  abandoned  the          lodestar in  favor of the POF  method.  The  court had originally          arrived  at the 52% figure through an enhancement of the lodestar          to account for  "the extraordinary results" achieved  by the PSC.          In re San Juan Dupont Plaza Hotel Fire Litig., 768  F. Supp. 912,          _____ _______________________________________          932  (D.P.R. 1991).  Thus, the court premised the original award,          in  large measure,  on its  assessment of the  role that  the PSC          played in creating the Fund.                                          34          Though we have great  confidence in Judge Acosta, his  silence on          this  subject  leaves  the  award   open  to  a  perception  that          appellants have been penalized for successfully prosecuting their          previous appeals.   Cf. North  Carolina v. Pearce,  395 U.S.  711                              ___ _______________    ______          (1969)  (discussing importance  of  dispelling any  appearance of          vindictiveness when a judge imposes a more severe sentence upon a          criminal defendant after the defendant wins a new trial).                    Seventh,  the  district  court   erred  in  failing  to          compensate the  representative trial  counsel   those  IRPAs who,          though  not members  of the  PSC, prepared  and/or tried  the so-          called "representative" cases   for  their work in that capacity.          Just as the PSC members deserved compensation for their endeavors          on behalf of the  whole, the IRPAs who labored  as representative          counsel  conferred  a common  benefit,  and  must be  compensated          accordingly.                    Last   but far from least   we are persuaded, on whole-          record review, that it is simply unreasonable to award 70% of the          aggregate  fees  to the  attorneys  who  managed the  litigation,          leaving only 30% of the Fund to those who brought  in the clients          and worked hand-in-hand with them throughout the pendency of this          long  safari of  a case.   Because  mass tort  cases are  a breed          apart, it is difficult  to envision situations in which,  if fees          are  divided  between  lead  counsel  and  individually  retained          counsel  under a POF formula, the latter  will not be entitled to                                          35          at  least  half   the  fees.15    We  do   not  think  that  this          litigation, though unique,  so far overshoots all  other cases as          to  warrant  a substantially  larger  differential.   See,  e.g.,                                                                ___   ____          Vincent  v. Hughes  Air W.,  Inc., 557 F.2d  759 (9th  Cir. 1977)          _______     _____________________          (upholding district  court's allocation of 5%  of gross recovery,          or approximately  20% of the  fee fund, to  lead counsel  in mass          tort action).                    Concluding, as we do,  that the fee allocation reflects          a  serious  error   of  judgment,  and  therefore   an  abuse  of          discretion, we vacate the award.          V.  REMEDY          V.  REMEDY                    Ordinarily, "an improper calculation of attorneys' fees          necessitates remand for reconfiguration  of the award."  Lipsett,                                                                   _______          975 F.2d at 943.   But this rule admits of exceptions, so long as          "the record is sufficiently  developed that we can apply  the law          to the  facts before us and  calculate a fair and  reasonable fee          without resorting to remand."   Id.  Here, that  qualification is                                          ___          satisfied; the record  is voluminous and this  court is painfully          familiar   with   the   particulars   of   this   fee  imbroglio.          Nonetheless, an appellate  court must think long  and hard before          usurping the district court's usual prerogatives, and, therefore,          we doubt that this case would fall  within the narrow confines of          the   exception   under   ordinary  circumstances.      But   the          circumstances here are  extraordinary, and common sense  commands                                        ____________________               15We have been unable to find any common fund case  in which                                             ___          a court, using the POF  method, has allocated more than 50%  of a          fee fund to lead counsel.                                          36          that we not turn a blind eye to the reality of events.                    This  litigation has  passed the  point of  diminishing          returns.   The  holocaust that  underlies the  plaintiffs' claims          occurred almost  a decade ago.   The meat-and-potatoes litigation          is over;  with one small exception, see supra note 1, only a side                                              ___ _____          dish    attorneys' fees    remains on the  table.  The  amount of          time, energy and  money already devoted  to this peripheral  item          has careened virtually out of control.  Remanding would invite an          even greater  investment in the side dish    and we are reluctant          to  sanction the  squandering  of additional  resources for  this          purpose.  We have, at  times, with considerably less provocation,          simply  grasped  the  bull  by  the  horns  and  fixed  the  fees          ourselves.  See, e.g.,  Jacobs v. Mancuso, 825 F.2d 559, 562 (1st                      ___  ____   ______    _______          Cir. 1987); Grendel's Den v. Larkin, 749 F.2d  945, 951 (1st Cir.                      _____________    ______          1984).                    We  realize  that dividing  the  Fund  among groups  of          attorneys   in  accordance   with  the   POF  method   cannot  be          accomplished  with surgical precision.  We   or a district court,          for  that matter   must necessarily traffic in estimates.  Taking          into account all the facts and circumstances, we conclude that we          should  subdivide  the Fund  ourselves,  rather  than remand  yet          again.  We also  conclude that, on balance, assigning 50%  of the          Fund to  the  PSC and  50%  to the  IRPAs  comprises a  fair  and          reasonable allocation.                    This   division   reflects    the   district    court's          determination that the PSC contributed handsomely to the creation                                          37          of the Fund   it  is, after all, at the high end of  what a court          should  usually award16   while  at the same  time correcting for          the district court's undervaluation of  the IRPAs' contributions.          This division also strikes a sensible balance between the equity-          based  common  fund doctrine,  which  guards  against the  unjust          enrichment of free riders, and the need to avoid adding insult to          injury in a  situation in  which the court  selects lead  counsel          from  amidst a group of willing volunteers and thereafter invades          the contingency agreements of  the rejected lawyers to compensate          the select few.   Moreover, this  division is not  incommensurate          with the  time records of  the PSC.   Even if,  as an  uncritical          reading of the record suggests, the PSC spent as many as  166,000          hours  on   the   litigation,17   a   50%   allocation   (roughly          $34,000,000)  pays  the  members  well.    Although  we  have  no          tabulation  of IRPA hours to  compare with this  total, the PSC's          time records are still a valid  measure of the vast resources its          members expended in the course of the litigation.                    One  loose  end  remains.    It   involves  appropriate          compensation for the IRPAs  who tried the "representative" cases.          As  we stated earlier, see supra p.33, their participation in the                                 ___ _____                                        ____________________               16Although  we do  not impose  an absolute  ceiling  on lead          counsel fees  in common fund  mass tort cases, cf.  Camden I, 946                                                         ___  ________          F.2d at 774-75 (holding that, as a general rule, 50% is the upper          limit in common  fund cases  in the Eleventh  Circuit), cases  in          which  a court  should exceed  50% are  likely to  be hen's-teeth          rare.               17This  figure includes  time  logged not  only  by the  PSC          members themselves but also  by their associates, paralegals, and          law clerks.                                          38          Phase II trial inured to the benefit of all plaintiffs.  Thus, in          presenting the representative claims,  the lawyers were acting as          de facto PSC members.  It is only  logical, therefore, that their          __ _____          compensation  for those services be drawn from the PSC's share of          the  fee Fund.   Since the record  is inadequate to  permit us to          place  a dollar  value  on these  services,  we leave  it to  the          district court to determine the amount of compensation due to the          non-PSC members who served as representative trial counsel during          the Phase II trial for their services in that capacity,  and then          to order that sum paid out of the PSC's share of the Fund.          VI.  CONCLUSION          VI.  CONCLUSION                    We  need  go  no further.    For  the  reasons we  have          expressed, we vacate the order allocating attorneys' fees; direct          that the  fee Fund be divided  equally among the PSC,  on the one          hand, and the IRPAS, on the  other hand; and remand for the entry          of a suitable decree and for  further proceedings consistent with          this opinion.  Costs shall be taxed in favor of the appellants.                    It is so ordered.                    It is so ordered.                    ________________                                          39
