                      REVISED, April 17, 1998

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                            ____________

                            No. 97-30378
                            ____________


          JAMES T STRONG, Individually and on behalf of
          the Class of All Others Similarly Situated;
          MASSEY K MCCONNELL, Individually and dba B A S
          Const Co; RENE JACKSON; PAMELA DIANE WALTERS
          HENRY; CLEOPHAS MAY,

                               Plaintiffs


          JAMES T STRONG, Individually and on behalf of
          the Class of All Others Similarly Situated;
          MASSEY K MCCONNELL, Individually and doing
          business as B A S Const Co,

                               Plaintiffs - Appellants,

          versus

          BELLSOUTH   TELECOMMUNICATIONS    INC,    doing
          business as South Central Bell,

                               Defendant - Appellee.



          Appeal from the United States District Court
              For the Western District of Louisiana

                           March 23, 1998

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

     Plaintiffs’ counsel appeal the district court’s order denying

an additional $1.5 million in attorneys’ fees and costs.    Finding

no abuse of discretion, we affirm.

                                  I
       Plaintiffs        brought    suit    in    Louisiana    against    BellSouth

Telecommunications, Inc. (“BellSouth”), alleging that BellSouth

violated antitrust laws by misleading customers about its inside

wire       maintenance    service    plan    (“IWMS    plan”).      Specifically,

plaintiffs claimed that BellSouth told its customers that they

would not receive the IWMS plan unless they affirmatively elected

it, but then treated customers’ silence as acceptance of the plan,

thereby leveraging its local telephone service monopoly to acquire

a monopoly of the IWMS plan.                     Parallel suits were filed in

Mississippi, Alabama, and Tennessee.1

       As in the companion suits, the plaintiffs here sought to

certify a class pursuant to FED. R. CIV. P. 23 on behalf of all

residential and small business customers receiving the IWMS plan.

The district court, however, denied class certification.                          The

parties subsequently entered into settlement negotiations and,

after       mediation,    reached    a     global   settlement     agreement     (the

“Agreement”),       which     covered       the     seven     pending    suits   and

conditionally certified the class for settlement purposes.                   In the

Agreement, BellSouth agreed to provide settlement class members

with information that fully described the IWMS plan and its terms

and conditions.          The settlement class members then had the option

to either (1) continue as a subscriber to the plan under the stated

terms and conditions, or (2) cancel the service and, if eligible,

obtain a credit on their monthly telephone bill for up to twenty-


       1
          Suits were brought in federal court in each of the four
states and in state court in Alabama, Louisiana, and Mississippi.

                                           -2-
four months as long as they continued to receive local telephone

service from BellSouth.         The amount of the available credit varied

by state:       for Louisiana and Mississippi, the credit amounted to

$0.80 per month, for Alabama, $0.60 per month, and for Tennessee,

$0.50 per month.         To be eligible for the credit, the customer had

to have paid for the IWMS plan for six months prior to the date the

class was established and not had a repair or service call between

January    1,     1987    and   the    date      the   class   was     established.2

Plaintiffs’ counsel calculated that if every class member were

eligible    for    and    elected     to   receive     the   credit,    BellSouth’s

liability would amount to approximately $64 million))a sum which

plaintiffs’ counsel refers to as a $64 million “common fund.”

       BellSouth also agreed to pay an additional $6 million to

plaintiffs’ counsel for attorneys fees and costs.                    The original,

unamended Agreement addressed attorneys’ fees as follows:

            14. South Central Bell will pay Plaintiffs’ counsel
       the total sum of six million dollars ($6,000,000) as
       reasonable compensation for fees, time, work and all
       expenses (including, but not limited to, court costs,
       expense of depositions and expert fees) spent in
       representation of the Plaintiffs and Settlement Class
       Members in all cases on Exhibit A. . . . The Notice of
       Class Settlement shall include a statement that South
       Central Bell has agreed to be responsible for such costs
       and attorneys’ fees that are attributable to the
       litigation in that state and that they shall not be

   2
          While the district court did not specifically address how
many class members would be ineligible to receive the credit, the
record reveals that BellSouth made over 250,000 dispatches for
inside wire service in each of 1993 and 1994 and over 120,000 for
1995 (through May 1995). Also, a class member who was eligible for
a credit at the time of the election would become ineligible if he
moved out of the state or to an in-state address not serviced by
BellSouth or if he disconnected his telephone service after the
date the class was established.

                                           -3-
     deducted from the recovery by the class. . . .

The notice to Louisiana class members stated that “the settlement

provides for payment of $1.5M as total compensation for fees, time,

expenses,   and     work   spent       by   the   attorneys    who    represent    the

Settlement Class and Plaintiffs.”                 For reasons of administrative

ease, the parties arrived at the $1.5 million figure simply by

dividing $6 million equally among the four federal cases.

     To be enforceable, the Agreement required the final approval

of each federal court, pursuant to FED. R. CIV. P. 23(e).3                         Any

modification to the Agreement, whether by a party or a court, would

render the Agreement void.             Filing joint motions in support of the

Agreement    and     requesting        preliminary        approval,    the    parties

presented the Agreement to the respective federal courts.                          The

district    court    entered      an    order     of    preliminary    approval    and

scheduled a hearing on the Agreement.                  At the hearing, the parties

clarified that the Agreement dictated that the court had to rule on

the Agreement as a package and could not separate the benefits to

the class from the attorneys’ fees.               While the court expressed its

opinion that the parties reached the Agreement without fraud or

collusion    and    that    the    attorneys’          fees   did    not   drive   the

settlement, it nonetheless voiced concern about the reasonableness

of the attorneys’ fees, particularly that the $64 million “common

fund” figure was illusory.

     Less than one week after the hearing, the district court

    3
          The Agreement provided that once all four federal courts
entered final orders approving the settlement, the parties would
dismiss the state court actions.

                                            -4-
issued an order in which it expressed continued misgivings about

the attorneys’ fees portion but acknowledged that the Agreement had

to be approved as a whole.             The court posed many specific questions

to    plaintiffs’     counsel         about    the   time    records   that    they   had

submitted to support the approximately 21,000 hours they claimed

for the four-state litigation.                Plaintiffs’ counsel responded with

detailed answers to the court’s questions, disclosing that a few of

the    entries    were     erroneous.            Remaining      unconvinced      of   the

reasonableness        of   the    attorneys’         fees,    the   court   denied    the

parties’ joint motion to approve the Agreement. The court remained

concerned about entries in the submitted time records and again

questioned class counsel’s assertion that a $64 million “common

fund”    was    available        to    class    members.        Although      expressing

satisfaction with the agreed benefits to the class, the court

indicated      that   only   the       attorneys’      fees    award   prevented      his

approval of the Agreement.

       Following further communications between themselves and with

the court, the parties decided to amend the Agreement.                                The

resulting amendment provided that BellSouth would pay plaintiffs’

counsel a maximum of $6 million as compensation and recited that

the federal courts in Alabama, Mississippi, and Tennessee had

approved a cumulative award of $4.5 million.                    The amendment vested

the determination of the amount of Louisiana attorneys’ fees with

the Louisiana federal court:

       The Parties agree to leave the determination of the
       appropriate quantum of compensation to be paid to
       Plaintiffs’ Counsel for Louisiana to the federal court in
       Louisiana, taking into account such factors as the court

                                              -5-
     deems appropriate. In no event shall the total amount of
     compensation payable to Plaintiffs’ Counsel be less than
     the $4.5 million previously approved by the federal
     courts in Alabama, Mississippi and Tennessee and in no
     event shall the total amount of compensation paid to
     Plaintiffs’ counsel by South Central Bell exceed the
     $6,000,000 agreed to by the Parties in the original
     Agreement.

In a joint motion requesting approval of the amended settlement

agreement, the parties stated that they would reserve the issue of

attorneys’ fees in the Louisiana litigation for future action by

the district court until after the benefits had been distributed to

the class members in all four states.        The parties further stated

that they would provide the court with whatever data it would

require, including data about the actual benefits provided to the

class members.

     In January 1996, the court entered a final order approving the

Agreement, as amended, and expressly reserved the determination of

attorneys’ fees, if any, to be paid to plaintiffs’ counsel until

after   the   parties   had    provided   the   court   with   information

concerning the distribution of benefits. In the last few months of

1996,   the   parties   presented   detailed    records   of   the   claims

submitted to BellSouth and jointly asked the court to approve an

additional    $1.5   million   attorneys’   fees   payment.     Using   the

lodestar method, the district court examined the reasonableness of

the requested fee and decided that an award of attorney fees above

the $4.5 million already awarded by the other courts was not

warranted.     The court subsequently entered final judgment, and

plaintiffs timely appealed.



                                    -6-
                                 II

     At the outset, plaintiffs’ counsel challenges the scope of the

district court’s authority to review attorneys’ fees.    The court’s

discretion is limited, plaintiffs’ counsel argues, for two reasons:

the parties agreed to the fee, and the fee was not deducted from a

common   fund.   Plaintiffs’   counsel   maintains   that,   in   these

circumstances, once the court found that the class received a fair

settlement, that the settlement agreement was consummated at arm’s

length, without collusion or fraud, and that the attorneys’ fees

did not drive the settlement, the court had no discretion to assess

the reasonableness of attorneys’ fees.

     Counsel’s position underestimates, however, the scope of the

court’s duty under Rule 23 to protect absent class members and to

police class action proceedings.      See FED. R. CIV. P. 23(e) (“A

class action shall not be dismissed or compromised without the

approval of the court . . . .”); see also Evans v. Jeff D., 475

U.S. 717, 726, 106 S. Ct. 1531, 1537, 89 L. Ed. 2d 747 (1986)

(“Rule 23(e) wisely requires court approval of the terms of any

settlement of a class action . . . .”).    This duty is not limited

to a review of the substantive claims included in the agreement.

Instead, the “duty to investigate the provisions of the suggested

settlement includes the obligation to explore the manner in which

fees of class counsel are to be paid and the dollar amount for such

services.”   Foster v. Boise-Cascade, Inc., 420 F. Supp. 674, 680

(S.D. Tex. 1976), aff’d, 577 F.2d 335 (5th Cir. 1978).       To fully

discharge its duty to review and approve class action settlement


                                -7-
agreements, a district court must assess the reasonableness of the

attorneys’ fees.    See Piambino v. Bailey, 610 F.2d 1306, 1328 (5th

Cir. 1980).      “The purpose of this salutary requirement is to

protect the nonparty members of the class from unjust or unfair

settlements   affecting     their   rights”     as    well      as   to   minimize

conflicts that “may arise between the attorney and the class,

between the named plaintiffs and the absentees, and between various

subclasses.” Id. at 1327-28. Moreover, the court’s examination of

attorneys’ fees guards against the public perception that attorneys

exploit the class action device to obtain large fees at the expense

of the class.    See In re General Motors Corp. Pick-up Truck Fuel

Tank Products Liab. Litig., 55 F.3d 768, 820 (3d Cir. 1995)

[hereinafter In re GM Trucks] (emphasizing that the “court’s

oversight   function”      serves   to     detect    the   “potential       public

misunderstandings    that    they   may     cultivate      in    regard    to   the

interests of class counsel”) (internal quotations and citations

omitted); Foster, 420 F. Supp. at 680 (explaining that the court

has the “obligation in any Rule 23 class action to protect [the

class action device] from misuse” because the “most commonly feared

abuse is the possibility that Rule 23 encourages strike suits

promoted by attorneys who simply are seeking fat fees”) (internal

quotations and citations omitted).

     Counsel’s     first    contention))that         the     district      court’s

responsibility to address attorneys’ fees is circumscribed when the

parties agree to the amount of fees))is, therefore, without merit

in the context of a class action settlement.               To the contrary, a


                                     -8-
“district court is not bound by the agreement of the parties as to

the amount of attorneys’ fees.”     Piambino, 610 F.2d at 1328; Foster

v. Boise-Cascade, Inc., 577 F.2d 335, 336 (5th Cir. 1978).                 The

court must scrutinize the agreed-to fees under the standards set

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

1974), and not merely “ratify a pre-arranged compact.”            Piambino,

610 F.2d at 1328 (holding that by summarily approving attorneys’

fees presented in an unopposed settlement agreement, the district

court “abdicated its responsibility to assess the reasonableness of

the attorneys’ fees proposed under a settlement of a class action,

and its approval of the settlement must be reversed on this ground

alone”).

     That the defendant will pay the attorneys’ fees from its own

funds likewise does not limit the court’s obligation to review the

reasonableness of the agreed-to fees.              Restricting the court’s

discretion to a perfunctory review in such a circumstance would

disregard   the   economic    reality   that   a    settling   defendant   is

concerned only with its total liability.           See In re GM Trucks, 55

F.3d at 819-20 (requiring “a thorough judicial review of fee

applications . . . in all class action settlements” because “‘a

defendant is interested only in disposing of the total claim

asserted against it’” and “‘the allocation between the class

payment and the attorneys’ fees is of little or no interest to the

defense’”) (quoting Prandini v. National Tea Co., 557 F.2d 1015,

1020 (3d Cir. 1977)).        Because the defendant’s adversarial role

with regard to the attorneys’ fees is thus diminished, the court


                                   -9-
must strive to minimize the conflict of interest between the class

and its attorney inherent in such an arrangement.   See Foster, 420

F. Supp. at 687-88; see also   Weinberger v. Great Northern Nekoosa

Corp., 925 F.2d 518, 524 (1st Cir. 1991) (explaining that when fees

are paid from the defendant’s own funds, a conflict results from

“the danger that the lawyers might urge a class settlement at a low

figure or on a less-than-optimal basis in exchange for red-carpet

treatment on fees”); Court Awarded Attorney Fees, Report of the

Third Circuit Task Force, 108 F.R.D. 237, 266 (1985) (“Even if the

plaintiff's attorney does not consciously or explicitly bargain for

a higher fee at the expense of the beneficiaries, it is very likely

that this situation has indirect or subliminal effects on the

negotiations.   And, in any event, there is an appearance of a

conflict of interest.”)

     The court’s review of the attorneys’ fees component of a

settlement agreement is thus an essential part of its role as

guardian of the interests of class members.    To properly fulfill

its Rule 23(e) duty, the district court must not cursorily approve

the attorney’s fees provision of a class settlement or delegate

that duty to the parties.   Even when the district court finds the

settlement agreement to be untainted by collusion, fraud, and other

irregularities, the court must thoroughly review the attorneys’

fees agreed to by the parties in the proposed settlement agreement.

                                III

                                 A

     We review a district court’s award or denial of attorney fees


                                -10-
for abuse of discretion.      See Forbush v. J.C. Penney Co., 98 F.3d

817, 821 (5th Cir. 1996).      We review the court’s findings of fact

supporting the award for clear error.        See Longden v. Sunderman,

979 F.2d 1095, 1100 (5th Cir. 1992).

     Under the lodestar method, which this circuit uses to assess

attorneys’ fees in class action suits, the district court must

first    determine   the   reasonable   number    of   hours   expended   on

litigation and the reasonable hourly rates for the participating

attorneys.    See Forbush, 98 F.3d at 821.       The lodestar is computed

by multiplying the number of hours reasonably expended by the

reasonable hourly rate.       See id.    Upon a review of the twelve

factors set forth in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 717-19 (5th Cir. 1974),4 the court may then apply a

multiplier to the lodestar, adjusting the lodestar either upward or

downward.     See id.      However, “[t]he lodestar may be adjusted

according to a Johnson factor only if that factor is not already

taken into account by the lodestar.”         Transamerican Natural Gas

Corp. v. Zapata Partnership, Ltd. (In re Fender), 12 F.3d 480, 487

(5th Cir. 1994).

     Pursuant to the amended Agreement, plaintiffs’ counsel sought

     4
          The twelve Johnson factors are: (1) the time and labor
required, (2) the novelty and difficulty of the issues, (3) the
skill required to perform the legal services properly, (4) the
preclusion of other employment, (5) the customary fee, (6) whether
the fee is fixed or contingent, (7) time limitations imposed by the
client or the circumstances, (8) the amount involved and the
results obtained, (9) the experience, reputation, and ability of
the attorneys, (10) the undesirability of the case, (11) the nature
and length of the professional relationship with the client, and
(12) awards in similar cases. Johnson, 488 F.2d at 717-19.


                                  -11-
a total attorneys’ fee award of $6.0 million, which, taking into

account the $4.5 million that the three other federal courts had

previously awarded, left the court below to decide if an additional

$1.5 million payment was reasonable. First examining the number of

hours and hourly rates, the district court noted that plaintiffs’

counsel claimed to have expended almost 21,000 hours on the four-

state litigation, not including 218 additional hours expended by

local counsel, and charged hourly rates of $175 for partners, $250

for trial counsel, and $135 for associates.               The lodestar fee

calculated    from   these   figures   amounted   to    $3,089,127,   which,

combined with the $652,547 that counsel claimed in costs, totaled

$3,741,674.    Plaintiffs’ counsel requested that the court enhance

this lodestar with a multiplier of less than two to yield a total

award of $6 million.

     Although continuing to question the validity of some of the

entries in the supporting fee records, which it had previously

reviewed, the court declined to decide whether the claimed hours

were compensable time. Instead, assuming without deciding that the

records were accurate, the court held that it would award no

additional fees because “plaintiffs’ counsel ha[d] been more than

amply compensated from the funds they have received to date,”            the

total of which exceeded the lodestar figure plus costs.           Strong v.

BellSouth Telecomms., Inc., 173 F.R.D. 167, 170 (W.D. La. 1997).

     In determining that a multiplier was not warranted, the court

considered the factors set forth in Johnson, focusing on the time

and labor involved and the results achieved.           The court’s decision


                                   -12-
not to enhance the lodestar was largely based on its examination of

the benefits obtained for the class.          The court first considered

the nonmonetary class benefits claimed by plaintiffs’ counsel to

support the enhancement:      that the class and public were educated

on the choices available for the IWMS plan, that the price for IWMS

service had remained static since the time the lawsuit was filed,

and that the percentage of BellSouth customers paying for IWMS plan

had dropped significantly since the time the lawsuit was filed.

The court found that while the class had benefitted from the

information about the market for IWMS plans, the additional value

of this benefit, above what was already reflected in the submitted

claims, was insubstantial. In accordance with the parties’ amended

Agreement, the court then reviewed the information submitted by the

parties regarding the actual distribution of class benefits and

found that the value of the credit requests submitted by class

members   in   all    four   states     totaled   $1,718,594,    an   amount

drastically less than the $64 million that plaintiffs’ counsel

claimed it had obtained for the class.            The court concluded not

only that a multiplier was inappropriate, but, “if anything, the

fees should be reduced in light of the insignificant benefit to the

class members.”      Strong, 173 F.R.D. at 172.

     We are unable to conclude that the district court’s refusal to

award additional fees was an abuse of discretion.               The parties

jointly asked the court, pursuant to the amended Agreement, to

award up to $1.5 million additional attorneys’ fees based on actual

claim information.      The court below reviewed in detail the class


                                      -13-
benefits      of     the     settlement    agreement      and     acted     within    its

discretion in concluding that an enhancement of the lodestar was

not warranted.             Although the district court did not conduct a

detailed analysis of every Johnson factor, the court used the

Johnson framework in evaluating the requested fee and clearly set

forth its reasons for denying the fee enhancement.                        See Louisiana

Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995)

(requiring the district court “to provide a concise but clear

explanation of its reasons for the fee award,” but noting that we

inspect the district court’s lodestar analysis only to determine if

the   court        sufficiently      considered     the     appropriate       criteria)

(quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933,

1941, 76 L. Ed. 2d 40 (1983)); Forbush, 98 F.3d at 823 (holding

that we will not reverse a district court that fails to discuss a

Johnson factor “so long as the record clearly indicates that the

district court has utilized the Johnson framework as the basis of

its analysis, has not proceeded in a summary fashion, and has

arrived at an amount that can be said to be just compensation”)

(quoting Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987)).                         We

therefore hold that the district court did not abuse its discretion

in denying the requested attorneys’ fees.

                                            B

      Although        they     do   not   contend    that       the   district       court

misapplied the Johnson factors in this case, plaintiffs’ counsel

claims that the court erred by comparing the attorneys’ fees to the

actual amounts claimed by the class members rather than the entire


                                          -14-
“common fund.”   Accordingly, they argue that Boeing v. Van Gemart,

444 U.S. 472, 100 S. Ct. 745, 62 L. Ed. 2d 676 (1980), mandates

that we reverse the district court for considering the actual

rather than potential awards claimed.

     We first question whether Boeing, which used the percentage of

fund method, has any application to a case such as this one, which

uses the lodestar method.   Without deciding the implications, if

any, of Boeing on the lodestar method,5 however, we find Boeing

distinguishable on a more significant ground:        unlike Boeing, this

case does not involve a traditional common fund.

     In Boeing, the district court entered judgment against Boeing

and then ordered Boeing to deposit the amount of the judgment into

escrow at a commercial bank.     Boeing, 444 U.S. at 476, 100 S. Ct.

at 748.   Because each member of the class had an “undisputed and

mathematically   ascertainable   claim   to   part   of   [the]   lump-sum

judgment,” the members could obtain their share of the fund “simply




     5
          Plaintiffs’ counsel does not attempt to explain how
Boeing would be relevant to a lodestar analysis; they discuss the
case only in the context of the percentage of fund method.
Although we do not purport to resolve this issue, we note that
several courts have advocated the use of the lodestar method in
lieu of the percentage of fund method precisely in the situation
where the value of the settlement is difficult to ascertain,
reasoning that there is a strong presumption that the lodestar is
a reasonable fee.    See, e.g., In re GM Trucks, 55 F.3d at 821
(“Outside the statutory fee case, the lodestar rationale has appeal
where as here, the nature of the settlement evades the precise
evaluation needed for the percentage of recovery method.”);
Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 526 n.10
(1st Cir. 1991) (“[T]he absence of any true common fund renders the
percentage approach inapposite here.”).

                                 -15-
by proving their individual claims against the judgment fund.”6

Id. at 479, 100 S. Ct. at 749-50.            The Court held that an attorney

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, including the unclaimed portion.

        In contrast to Boeing, in this settlement no money was paid

into escrow or any other account))in other words, no fund was

established at all in this case.7            In fact, the Agreement neither

established    nor    even    estimated      BellSouth’s    total    liability.8

Instead, the Agreement provided each class member with the option

of either continuing under the plan or canceling the plan and

obtaining a credit.          Thus, class members who wanted the service

would not receive a credit under the Agreement. In addition, class

members who did not meet the eligibility requirements also would

not receive     credits.       For   these    reasons,     the   district   court

considered    the    $64   million   “common     fund”   figure     assigned   by


        6
          The class alleged that Boeing had violated federal and
state laws by failing to give reasonably adequate notice of the
redemption of certain convertible debentures. The court fixed the
amount that each class member could recover on a principal amount
of $100 in debentures. Boeing, 444 U.S. at 476, 100 S. Ct. at 748.
    7
          This settlement also differed from the Boeing settlement
with regard to the source of the payment. Unlike in Boeing, where
the attorneys’ fees were deducted from the payments to the class,
BellSouth agreed to pay the fees separately from any payment made
to class members.
        8
          This characteristic of the Boeing settlement did not
escape the Boeing Court, which expressly observed that “we need not
decide whether a class-action judgment that simply requires the
defendant to give security against all potential claims would
support recovery of attorney’s fees under the common-fund
doctrine.” Boeing, 444 U.S. at 481 n.5, 100 S. Ct. at 750 n.5.

                                      -16-
plaintiffs’ counsel to be a “phantom,” likening this aspect of the

settlement to settlements providing class members with coupons or

certificates, where the true value of the award was less than its

face value.   See Strong, 173 F.R.D. at 172.   Even BellSouth, which

filed a motion in support of the court’s approval of the Agreement,

pointed out that the Agreement varied from a traditional common

fund in this important respect.    Because of the absence of any fund

and because the value of the settlement was contingent on class

members’ desire to continue the plan as well as their eligibility

for the credit, we reject the contention of plaintiffs’ counsel

that the district court abused its discretion by not basing the

attorneys’ fee award on the $64 million “common fund” value.

     We further conclude that the district court acted within its

discretion in considering the actual claims awarded.        When the

court rejected the unamended Agreement, it expressed its concern

that the attorneys’ fees portion of settlement was unreasonable,

particularly because it found counsel’s $64 million value of the

settlement to be illusory. When the parties amended the Agreement,

they agreed to provide the court with information on the actual

claims, and the court proceeded on that basis.           Although we

recognize that this course of action is not the usual one, we note

that other courts have crafted similar arrangements to address fee

requests like this one that are based on settlements of conditional

value. See, e.g., In re Domestic Air Transp. Antitrust Litig., 148

F.R.D. 297, 348-52 (N.D. Ga. 1993) (adjusting value of settlement

for the likelihood that travel certificates would be used by class


                                  -17-
members in determining attorneys’ fees and considering the adjusted

value   when   reviewing   the   “results     obtained”   Johnson   factor);

Duhaime v. John Hancock Mut. Life Ins. Co., No. CIV.A. 96-10706-

GAO, 1997 WL 809597, at *4 (D. Mass. Dec. 31, 1997) (approving the

fee request provisionally and permitting immediate partial payment,

but reserving the balance for payment either in full or after

appropriate adjustment in light of actual experience under the

settlement,    where   settlement    value    was   unknown   because   class

members could opt to receive either relief against their insurance

policy or an award through an ADR process).               Moreover, as we

concluded earlier, the district court conducted a proper analysis

under    the   lodestar    method,    which    produces   a   presumptively

reasonable fee award.      We therefore find that under the atypical

circumstances of this case, the district court did not abuse its

discretion in considering the actual results of the settlement.9

                                     III

       For the foregoing reasons, we find that the district court did

not abuse its discretion in denying the additional $1.5 million

attorneys’ fees requested by plaintiffs’ counsel.             We accordingly

AFFIRM the decision of the district court.

   9
          At oral argument, plaintiffs’ counsel vaguely argued that
because the district court was presented only with the settlement
for Louisiana, it abused its discretion in awarding zero attorneys’
fees for the Louisiana litigation. Plaintiffs’ counsel failed,
however, to present this argument in their brief to this court; in
fact, they referred several times to the global settlement and the
Louisiana portion as alternative bases for approving the fee.
Plaintiffs’ counsel therefore waived this issue.       See Webb v.
Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996) (holding
that a party who fails to raise an issue in its brief waives the
right to review of that issue).

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