           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 16, 2008

                                     No. 07-30745                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MICHELLE KOCHENSKY; BRIAN WELSH

                                                  Plaintiffs-Appellants

SMOLOW & LANDIS

                                                  Appellant

v.

EDUCATIONAL TESTING SERVICES INC

                                                  Defendant

ATTORNEY’S FEE COMPENSATION COMMITTEE (AFCC)

                                                  Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:04-md-01643


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-30745

      Plaintiffs Michelle Kochensky and Brian Welsh, along with their counsel,
the law firm Smolow & Landis, challenge the district court’s approval of the
allocation of attorneys’ fees proposed by the Appellees, the Attorney’s Fee
Compensation Committee (AFCC). We find no error and affirm.
      In 2006, a settlement was reached by the parties to multi-district litigation
involving individual and class claims of negligence and breach of contract
against Educational Testing Services (ETS). The settlement required ETS to
pay $11.1 million into a common fund. Kochensky and Welsh, represented by
the law firm of Smolow & Landis, objected to the court-appointed special
master’s recommendation to distribute forty percent of the proceeds of the fund
to cover attorneys’ fees. Among their arguments was that forty percent was an
overly large attorneys’ fee. The court eventually reduced the attorneys’ fee
portion to twenty-nine percent.
      The separate counsel for the Plaintiffs formed the three-person AFCC in
order to allocate the attorneys’ share of the common fund. The AFCC created a
formula to compensate attorneys who performed work for the common benefit
of all Plaintiffs based in part on the number of hours worked. Although Smolow
& Landis received funds for common benefit work, of the approximately 350
hours that the firm submitted, the AFCC only recognized approximately twenty
hours as common benefit time.
      The Appellants objected in the district court to the fee award proposed by
the AFCC, claiming that Smolow & Landis was entitled to compensation for (1)
all of the hours it submitted as common benefit time, and (2) the additional
hours it spent arguing its successful objection to the special master’s fee
proposal, which resulted in an additional eleven percent of the common funds
being allocated to the Plaintiffs. The district court approved the proposed
allocation of fees, explaining in a detailed opinion its reasons for rejecting the
objections. Regarding the common benefit hours, the court found that Smolow


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                                     No. 07-30745

& Landis did not explain how the numerous hours it claimed benefitted the class
as a whole, and described several specific examples of claimed time in which the
work performed served only the firm’s individual client. Specifically concerning
the fee percentage objection, the court acknowledged that its had ruled
consistently with that objection. However, the court stated that its ruling was
made independently of and was not benefitted by the objection. The court noted
that it had an obligation independent of any party’s objection to analyze the
reasonableness of attorneys’ fees in the settlement agreement. The court also
distinguished Smolow & Landis’ objection from the kind of “helpful” objection
which assists a court in focusing complicated legal issues.1 Instead, the objection
merely referenced this Circuit’s well-known standard for evaluating the
reasonableness of attorneys’ fees and did not offer significant guidance on what
fee percentage the court should award.
      After reviewing the record and the arguments on appeal, we find no error.
For the reasons stated by the district court, the allocation of attorneys’ fees is
reasonable. In addition, the district court did not abuse its discretion in denying
Appellants’ motions for leave to file additional materials.
      AFFIRMED.




      1
        See e.g., Feinberg v. Hibernia Corp., 966 F. Supp. 442, 455 (E.D. La. 1997); In re
Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 358 (N.D. Ga. 1993).

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