HEALTH REPUBLIC INSURANCE COMPANY v. US

United States Court of Appeals

for the Federal Circuit

______________________

HEALTH REPUBLIC INSURANCE COMPANY,

Plaintiff-Appellee

KAISER FOUNDATION HEALTH PLAN INC., KAI-

SER FOUNDATION HEALTH PLAN OF GEORGIA,

KAISER FOUNDATION HEALTH PLAN OF THE

MID-ATLANTIC STATES, INC., KAISER FOUNDA-

TION HEALTH PLAN INC. OF COLO., KAISER

FOUNDATION HEALTHPLAN OF THE NW, GROUP

HEALTH COOPERATIVE, HARKEN HEALTH IN-

SURANCE COMPANY, HEALTH PLAN OF NE-

VADA, INC., OXFORD HEALTH PLANS (NJ), INC.,

ROCKY MOUNTAIN HEALTH MAINTENANCE OR-

GANIZATION, INCORPORATED, UNITEDH-

EALTHCARE BENEFITS PLAN OF CALIFORNIA,

UNITEDHEALTHCARE COMMUNITY PLAN, INC.,

UNITEDHEALTHCARE INSURANCE COMPANY,

UNITEDHEALTHCARE LIFE INSURANCE COM-

PANY, UNITEDHEALTHCARE OF ALABAMA, INC.,

UNITEDHEALTHCARE OF COLORADO, INC.,

UNITEDHEALTHCARE OF FLORIDA, INC., UNIT-

EDHEALTHCARE OF GEORGIA, INC., UNITEDH-

EALTHCARE OF KENTUCKY, LTD.,

UNITEDHEALTHCARE OF LOUISIANA, INC.,

UNITEDHEALTHCARE OF MISSISSIPPI, INC.,

UNITEDHEALTHCARE OF NEW ENGLAND, INC.,

UNITEDHEALTHCARE OF NEW YORK, INC.,

UNITEDHEALTHCARE OF NORTH CAROLINA,

INC., UNITEDHEALTHCARE OF OKLAHOMA,

INC., UNITEDHEALTHCARE OF PENNSYLVANIA,

INC., UNITEDHEALTHCARE OF THE MID-ATLAN-

TIC, INC., UNITEDHEALTHCARE OF THE

Case: 22-1018 Document: 51 Page: 1 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

MIDLANDS, INC., UNITEDHEALTHCARE OF THE

MIDWEST, INC., UNITEDHEALTHCARE OF UTAH,

INC., UNITEDHEALTHCARE OF WASHINGTON,

INC., UNITEDHEALTHCARE OF OHIO, INC.,

ROCKY MOUNTAIN HEALTHCARE OPTIONS,

INC., ALL SAVERS INSURANCE COMPANY, UNIT-

EDHEALTHCARE INSURANCE COMPANY INC.,

Plaintiffs-Appellants

UNITED STATES,

Defendant

______________________

2022-1018

______________________

Appeal from the United States Court of Federal Claims

in No. 1:16-cv-00259-KCD, Judge Kathryn C. Davis.

-------------------------------------------------

COMMON GROUND HEALTHCARE COOPERA-

TIVE, ON BEHALF OF ITSELF AND ALL OTHERS

SIMILARLY SITUATED,

Plaintiff-Appellee

KAISER FOUNDATION HEALTH PLAN INC., KAI-

SER FOUNDATION HEALTH PLAN OF GEORGIA,

KAISER FOUNDATION HEALTH PLAN OF THE

MID-ATLANTIC STATES, INC., KAISER FOUNDA-

TION HEALTH PLAN INC. OF COLO., KAISER

FOUNDATION HEALTHPLAN OF THE NW, GROUP

HEALTH COOPERATIVE, HARKEN HEALTH IN-

SURANCE COMPANY, HEALTH PLAN OF NE-

VADA, INC., OXFORD HEALTH PLANS (NJ), INC.,

ROCKY MOUNTAIN HEALTH MAINTENANCE

Case: 22-1018 Document: 51 Page: 2 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

ORGANIZATION, INCORPORATED, UNITEDH-

EALTHCARE BENEFITS PLAN OF CALIFORNIA,

UNITEDHEALTHCARE COMMUNITY PLAN, INC.,

UNITEDHEALTHCARE INSURANCE COMPANY,

UNITEDHEALTHCARE LIFE INSURANCE COM-

PANY, UNITEDHEALTHCARE OF ALABAMA, INC.,

UNITEDHEALTHCARE OF COLORADO, INC.,

UNITEDHEALTHCARE OF FLORIDA, INC., UNIT-

EDHEALTHCARE OF GEORGIA, INC., UNITEDH-

EALTHCARE OF KENTUCKY, LTD.,

UNITEDHEALTHCARE OF LOUISIANA, INC.,

UNITEDHEALTHCARE OF MISSISSIPPI, INC.,

UNITEDHEALTHCARE OF NEW ENGLAND, INC.,

UNITEDHEALTHCARE OF NEW YORK, INC.,

UNITEDHEALTHCARE OF NORTH CAROLINA,

INC., UNITEDHEALTHCARE OF OKLAHOMA,

INC., UNITEDHEALTHCARE OF PENNSYLVANIA,

INC., UNITEDHEALTHCARE OF THE MID-ATLAN-

TIC, INC., UNITEDHEALTHCARE OF THE MID-

LANDS, INC., UNITEDHEALTHCARE OF THE

MIDWEST, INC., UNITEDHEALTHCARE OF UTAH,

INC., UNITEDHEALTHCARE OF WASHINGTON,

INC., UNITEDHEALTHCARE OF OHIO, INC.,

ROCKY MOUNTAIN HEALTHCARE OPTIONS,

INC., ALL SAVERS INSURANCE COMPANY, UNIT-

EDHEALTHCARE INSURANCE COMPANY INC.,

Plaintiffs-Appellants

UNITED STATES,

Defendant

______________________

2022-1019

______________________

Case: 22-1018 Document: 51 Page: 3 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

Appeal from the United States Court of Federal Claims

in No. 1:17-cv-00877-KCD, Judge Kathryn C. Davis.

______________________

Decided: January 31, 2023

______________________

DEREK L. SHAFFER, Quinn Emanuel Urquhart & Sulli-

van, LLP, Washington, DC, argued for plaintiffs-appellees.

Also represented by DAVID COOPER, New York, NY; J. D.

HORTON, ADAM WOLFSON, Los Angeles, CA; STEPHEN A.

SWEDLOW, Chicago, IL.

MOHAMMAD KESHAVARZI, Sheppard Mullin Richter &

Hampton LLP, Los Angeles, CA, argued for plaintiffs-ap-

pellants. Also represented by JOHN BURNS, MATTHEW G.

HALGREN, San Diego, CA.

______________________

Before MOORE, Chief Judge, TARANTO and CHEN, Circuit

Judges.

TARANTO, Circuit Judge.

These appeals present a challenge to awards of attor-

ney’s fees to class counsel taken out of the classes’ recover-

ies in successful class actions against the United States

based on the Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health

Care and Education Reconciliation Act, Pub. L. No. 111-

152, 124 Stat. 1029 (2010) (collectively, the ACA). We va-

cate and remand for reconsideration of the fee awards.

In the ACA, Congress created a three-year Risk Corri-

dors program to accompany the creation of new health-in-

surance marketplaces, which presented uncertain risks for

participating health-insurance companies. To encourage

participation, Congress provided, among other things, that

qualified health-plan issuers (QHP issuers) that offered

Case: 22-1018 Document: 51 Page: 4 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

their products in the new marketplaces would be entitled

to payments from the Secretary of the Department of

Health and Human Services (HHS) if they suffered suffi-

cient losses. 42 U.S.C. § 18062(b). When the government

failed to make the payments required by the statute, many

QHP issuers sued the United States in the Court of Federal

Claims (Claims Court) seeking damages under the Tucker

Act, 28 U.S.C. § 1491(a)(1).

Among the suits were two class actions now before us,

Health Republic Insurance Co. v. United States and Com-

mon Ground Healthcare Cooperative v. United States, in

which the law firm of Quinn Emanuel Urquhart & Sulli-

van, LLP (Quinn Emanuel) was appointed lead counsel for

classes of QHP issuers seeking payment of the past-due

amounts. Class Certification Order, Health Republic, No.

16-cv-00259 (Fed. Cl. Jan. 3, 2017); Class Certification Or-

der, Common Ground, No. 17-cv-00877 (Fed. Cl. Jan. 8,

2018). In the opt-in notices sent to potential class members

with court approval, Quinn Emanuel represented that it

would seek attorney’s fees to come out of any recovery, that

it would seek no more than 5% of any judgment or settle-

ment obtained, and that the Claims Court would determine

the exact amount based on, among other things, how many

issuers participated, the amount at issue in the case, and a

so-called “lodestar cross-check” (based on the hours actu-

ally worked). The Health Republic and Common Ground

cases were stayed on the merits pending the resolution of

appeals in other cases involving materially identical

claims. During the stay, the Supreme Court, in other

cases, ruled against the government on the central issue in

the various cases, holding that QHP issuers were entitled

to collect ACA-promised Risk Corridors payments through

Tucker Act actions. Maine Community Health Options v.

United States, 140 S. Ct. 1308, 1331 (2020).

In light of Maine Community, the Claims Court en-

tered money judgments in favor of the Health Republic and

Common Ground classes, in amounts adding to about $3.7

Case: 22-1018 Document: 51 Page: 5 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

billion. See Health Republic Insurance Co. v. United States,

156 Fed. Cl. 67, 71 (2021). The Claims Court then awarded

Quinn Emanuel 5% of each of the common funds recovered

in Health Republic and Common Ground, rejecting various

objections of thirty-four class members (Objectors), the to-

tal fee amounting to about $185 million, to be taken out of

the class members’ recovery. Id. at 84. The Objectors now

appeal, contending that the attorney’s fee award (the two

awards considered as one) was unreasonable. Because the

Claims Court’s analysis was inconsistent with the terms of

the class opt-in notices and did not adequately justify the

extraordinarily high award, we vacate the award and re-

mand for a redetermination of what fees should be

awarded.

In the ACA, Congress provided for the creation of

online marketplaces through which issuers of health-bene-

fits plans could sell their plans. 42 U.S.C. § 18031(b)(1).

As an incentive for issuers to participate in the market-

places, whose novelty came with substantial uncertainty,

the ACA established the Risk Corridors program, among

other risk-mitigation measures, to “defray the carriers’

costs and cabin their risks” during the first three years of

operation of the marketplaces (2014, 2015, and 2016).

Maine Community, 140 S. Ct. at 1315–16. Under the Risk

Corridors program, QHP issuers participating in the online

marketplaces “with profits above a certain threshold would

pay” amounts to the HHS Secretary, while QHP issuers

participating in the online marketplaces “with losses below

that threshold would receive payments from” the Secre-

tary. Id. at 1316; see 42 U.S.C. § 18062(b).

During the Risk Corridors program’s three-year exist-

ence, Congress passed appropriations bills that included

riders barring use of the appropriated funds to make the

Risk Corridors payments to the unprofitable QHP issuers.

Case: 22-1018 Document: 51 Page: 6 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

See Maine Community, 140 S. Ct. at 1317. Each year,

moreover, the money collected from the profitable QHP is-

suers was insufficient to cover the ACA-required payments

to the loss-incurring QHP issuers. Id. Because of the ap-

propriations riders, the government did not pay what the

ACA required. Id.

QHP issuers that were owed government payments

filed several similar actions against the United States un-

der the Tucker Act, 28 U.S.C. § 1491(a), seeking an award

of the overdue amounts. The first of the actions was filed

by Quinn Emanuel on February 24, 2016, on behalf of

Health Republic Insurance Company (Health Republic)

and a putative class of issuers. Health Republic, 156 Fed.

Cl. at 71. The government moved to dismiss the Health

Republic complaint on June 24, 2016, asserting lack of sub-

ject-matter jurisdiction, but the Claims Court denied the

motion on January 10, 2017. Id. at 72.

One week earlier, on January 3, 2017, the Claims

Court had certified the proposed opt-in class in Health Re-

public and appointed Quinn Emanuel as lead class counsel

and Health Republic as class representative, and on Feb-

ruary 24, 2017, the Claims Court approved Quinn Eman-

uel’s proposal for notice to the potential class members. Id.

On March 15, 2017, Quinn Emanuel sent a notice stating

that, if a recovery resulted, it would seek an attorney’s fee

award that would be deducted from any recovery by the

class, but it did not identify how much it would seek,

whether by indicating a percentage of recovery or other-

wise. Id.; J.A. 696; see J.A. 1389 (stating date of that no-

tice). The opt-in deadline was May 12, 2017. J.A. 696.

Almost immediately after the notice was sent, Quinn

Emanuel, based on concerns that some potential class

members misunderstood the possible amount of requested

fees, sought and obtained the Claims Court’s permission to

distribute, and it did distribute, a supplemental class no-

tice, Health Republic, 156 Fed. Cl. at 72, which added the

following:

Case: 22-1018 Document: 51 Page: 7 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

Class Counsel [Quinn Emanuel] represents that it

will request no more than 5% of any judgment or

settlement obtained for the QHP Issuer Class. The

fee may be substantially less than 5% depending

upon the level of class participation represented by

the final membership of the QHP Issuer Class. In

any event, the exact percentage of Class Counsel’s

fees will be determined by the Court subject to,

among other things, the amount at issue in the case

and what is called a “lodestar cross-check” (i.e., a

limitation on class counsel fees based on the num-

ber of hours actually worked on the case). See, e.g.,

Geneva Rock Products, Inc. v. United States, 119

Fed. Cl. 581, 595–96 (2015); Loving v. Sec’y of

Health and Human Servs., 2016 WL 4098722, at *4

(Fed. Cl. Spec. Mstr. July 7, 2016).

Unopposed Motion to Supplement the Class Notice, Health

Republic, No. 16-cv-00259 (Mar. 24, 2017) (emphasis in

original), as modified by Order Approving the Unopposed

Motion to Supplement the Class Notice, Health Republic,

No. 16-cv-00259 (Mar. 27, 2017). Overall, 153 QHP issuers

opted into the Health Republic class. Health Republic, 156

Fed. Cl. at 72.

On March 3, 2017, Health Republic had moved for sum-

mary judgment, and the government cross-moved for sum-

mary judgment on April 12, 2017. Id. On July 11, 2017,

the Claims Court stayed proceedings pending the resolu-

tion of already-pending appeals in other Risk Corridors

cases, in which Quinn Emanuel was not counsel, that

raised identical legal issues.

Quinn Emanuel filed a separate class action on behalf

of Common Ground Healthcare Cooperative (Common

Ground) and a putative class, raising the same claims, and

that case proceeded on materially the same course as did

the Health Republic case, with Quinn Emanuel as class

Case: 22-1018 Document: 51 Page: 8 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

counsel for a certified opt-in class. See id. at 72–73. The

notice sent to potential members in the Common Ground

class was identical in relevant part to the supplemental no-

tice sent in Health Republic. Id. at 73. Overall, 130 QHP

issuers opted into the Common Ground class. Id. at 73.

Both the Health Republic and Common Ground actions

remained stayed until the Supreme Court decided the con-

solidated set of cases covered by the Maine Community

opinion. In one of those cases, the Claims Court had ruled

for the QHP issuer, but on appeal our court ruled for the

government in all the cases, on a single ground: While

agreeing that the ACA, considered on its own, created an

obligation for which the Tucker Act remedy was available,

we held that the appropriations riders overrode that rem-

edy. See Maine Community, 140 S. Ct. at 1318. The Su-

preme Court disagreed with us about the effect of the

riders, id. at 1323–27, and held that the Tucker Act was

available for the loss-incurring QHP issuers to obtain dam-

ages reflecting the overdue ACA-required payments, id. at

1319–23, 1327–31. The Court concluded that “the tempo-

rary Risk Corridors program . . . created a rare money-

mandating obligation” and that the qualifying unprofitable

QHP issuers were entitled “to collect payment” of all re-

quired but unpaid Risk Corridors amounts through dam-

ages actions in the Claims Court. Id. at 1331.

In light of Maine Community, the Claims Court en-

tered Rule 54(b) judgments in favor of the Health Republic

and Common Ground classes, awarding both classes the to-

tality of their unpaid Risk Corridors payments. See Health

Republic, 156 Fed. Cl. at 73–74. The Health Republic class

recovered approximately $1.9 billion, and the Common

Ground class recovered approximately $1.8 billion. Id. at

74.

Case: 22-1018 Document: 51 Page: 9 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

After the Claims Court entered judgments in favor of

the Health Republic and Common Ground classes, Quinn

Emanuel moved for attorney’s fees in both cases, request-

ing 5%–that is, about $185 million—of the $3.7 billion com-

mon-fund recovery. Health Republic, 156 Fed. Cl. at 74.

Quinn Emanuel stated in a declaration that its attorneys

worked “almost 10,000 hours” on the two cases, “at a

blended hourly rate of approximately $1033 across part-

ners and associates,” with support staff adding more than

400 hours “at an average rate of approximately $325 per

hour.” J.A. 1792. The Objectors opposed the request for

the $185 million award, arguing that the attorney’s fee

award should be $8.828 million (0.22%) and certainly no

more than $20 million (0.54%). The Objectors also con-

tended that the number of hours Quinn Emanuel claimed

to have worked on the case should be reduced, noting the

stay of the litigation for years and asserting the insuffi-

ciency of Quinn Emanuel’s supporting declaration. Health

Republic, 156 Fed. Cl. at 74.

Rule 23 of the Rules of the Court of Federal Claims

(like Federal Rule of Civil Procedure 23) authorizes the

court to “award reasonable attorney’s fees and nontaxable

costs that are authorized by law or by the parties’ agree-

ment” in a certified class action. RCFC 23(h); see Fed. R.

Civ. P. 23(h) (identical). Appropriately borrowing from

case law under Fed. R. Civ. P. 23, see Progressive Indus-

tries, Inc. v. United States, 888 F.3d 1248, 1253 n.4 (Fed.

Cir. 2018) (“[T]he precedent interpreting the Federal Rules

of Civil Procedure applies with equal force to the compara-

ble Rules of the Court of Federal Claims.”), the parties be-

fore us recognize the existence of two common methods for

determining what fee to award, under the reasonableness

standard, in a case like this, in which a common fund is

recovered. One is a percentage-of-the-fund method,

through which “a reasonable fee is based on a percentage

of the fund bestowed on the class.” Blum v. Stenson, 465

Case: 22-1018 Document: 51 Page: 10 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

U.S. 886, 900 n.16 (1984). The second is the lodestar

method (used generally outside the common-fund context),

through which “the court calculates . . . the product of rea-

sonable hours times a reasonable rate,” Haggart v. Wood-

ley, 809 F.3d 1336, 1355 (Fed. Cir. 2016) (internal

quotations omitted) (quoting City of Burlington v. Dague,

505 U.S. 557, 559–60 (1992)), and then adjusts that “lode-

star” result, if warranted, “on the basis of such factors as

the risk involved and the length of the proceedings,” Staton

v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). We have

recognized that the Claims Court has discretion to decide

what method to use. Haggart, 809 F.3d at 1355.

To determine the attorney’s fee to award in the Health

Republic and Common Ground actions, the Claims Court

elected to use the percentage-of-the-fund method. Health

Republic, 156 Fed. Cl. at 75. We have not enumerated

what facts must be considered when this method is used,

but several Claims Court decisions have used a multi-fac-

tor test approach, under which the court considers

(1) the quality of counsel; (2) the complexity and

duration of the litigation; (3) the risk of nonrecov-

ery; (4) the fee that likely would have been negoti-

ated between private parties in similar cases; (5)

any class members’ objections to the settlement

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

percentage applied in other class actions; and (7)

the size of the award.

Moore v. United States, 63 Fed. Cl. 781, 787 (2005) (citing

Manual for Complex Litigation § 14.121 (4th ed. 2004)); see

also Kane County v. United States, 145 Fed. Cl. 15, 18

(2019); Mercier v. United States, 156 Fed. Cl. 580, 591

(2021); Health Republic, 156 Fed. Cl. at 74. Guided by the

seven Moore factors, the Claims Court in the present cases

rejected the Objectors’ challenges and approved the 5%

award requested by Quinn Emanuel. Health Republic, 156

Fed. Cl. at 77–83.

Case: 22-1018 Document: 51 Page: 11 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

The Objectors had argued for use of a “lodestar cross-

check” as part of the percentage-of-the-fund approach,

which, they urged, would show that a $185 million (5%) fee

would be much too large. The name reflects an approach

taken in many judicial decisions, under which the reason-

ableness of a potential percentage-of-the-fund fee is

checked by “dividing the proposed fee award by the lode-

star calculation, resulting in a lodestar multiplier,” In re

AT & T Corp., 455 F.3d 160, 164 (3d Cir. 2006), and when

this implicit multiplier “is too great, the court should re-

consider its calculation under the percentage-of-recovery

method, with an eye toward reducing the award,” In re Rite

Aid Corp. Securities Litigation, 396 F.3d 294, 306 (3d Cir.

2005). In this case, the $185 million fee would be 18 to 19

times the product of Quinn Emanuel’s asserted hours and

asserted rates. Health Republic, 156 Fed. Cl. at 82. De-

spite that very high implicit multiplier, the Claims Court

stated that it need not perform a lodestar cross-check, then

added: “[E]ven if the Court applied the lodestar cross-

check, a multiplier of 18–19 would, at least, not be outside

the realm of reasonableness.” Id.

The Claims Court entered final judgment in both the

Health Republic and Common Ground actions on Septem-

ber 17, 2021, awarding 5% of the respective common funds

as attorney’s fees. The Objectors timely appealed on Octo-

ber 1, 2021. We have jurisdiction under 28 U.S.C.

§ 1295(a)(3).

We review an award of attorney’s fees for an abuse of

discretion. Hall v. Secretary of Health & Human Services,

640 F.3d 1351, 1356 (Fed. Cir. 2011). A court abuses its

discretion when it makes “a clear error of judgment in

weighing relevant factors or in basing its decision on an er-

ror of law or on clearly erroneous factual findings.” Bayer

CropScience AG v. Dow AgroSciences LLC, 851 F.3d 1302,

1306 (Fed. Cir. 2017) (quoting Mentor Graphics Corp. v.

Case: 22-1018 Document: 51 Page: 12 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

Quickturn Design Systems, Inc., 150 F.3d 1374, 1377 (Fed.

Cir. 1998)). We conclude that the Claims Court abused its

discretion in its fee award for several reasons, mostly but

not exclusively limited to the court’s discussion of a lode-

star crosscheck.

The Claims Court concluded that it was not necessary

to perform a lodestar cross-check in this case. That conclu-

sion, we hold, was legal error.

It is a sufficient reason for us to so hold that in this case

the court-approved notices sent to potential class members,

for use by potential members in deciding to whether to opt

into the classes, expressly guaranteed use of a lodestar

cross-check by the Claims Court in determining an attor-

ney’s fee award. See supra p. 8. Quinn Emanuel cites ju-

dicial decisions from other circuits reciting that a trial

court need not always subject a potential percentage-of-

the-fund fee award to a lodestar cross-check. See, e.g., Keil

v. Lopez, 862 F.3d 685, 701 (8th Cir. 2017) (“Although not

required to do so, the court verified the reasonableness of

its award by cross-checking it against the lodestar

method.”); Appellees’ Br. at 36 n.6. But none of the cited

decisions recite the existence of a class notice like the ones

distributed here and nevertheless approve dispensing with

a lodestar cross-check, much less when, as in this case, no

change of circumstances or other basis has been advanced

for disregarding the guarantee. We conclude that it is an

abuse of discretion to dispense with a lodestar cross-check

in these circumstances.

As the Claims Court recognized, the court-approved

guarantee of a judicial lodestar cross-check was part of the

“deal” offered to potential class members and accepted by

what we may assume to be all issuers that chose to join the

classes. Health Republic, 156 Fed. Cl. at 79; id. (endorsing

characterization, in another case, that the act of “opting

into the class . . . effectively accepted the offer of

Case: 22-1018 Document: 51 Page: 13 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

representation” by the named plaintiffs and class coun-

sel).

That characterization properly reflects a well-recog-

nized legal constraint applicable in a class action:

Assurances about the future course of the litigation, when

stated in a court-approved class notice like the ones here,

must generally be respected. See In re Diet Drugs, 369 F.3d

293, 298 (3d Cir. 2004) (concluding that the trial court must

manage the actions of class members in a manner “con-

sistent with fair class notice” by abiding by “the terms of

the . . . class notice”); id. at 318 (“But the Court’s power has

to be exercised consistent with the terms of the notice . . .

on which potential class members relied at the outset of the

process.”); City of Detroit v. Grinnell Corp., 495 F.2d 448,

472–74 (2d Cir. 1974) (concluding that the district court

abused its discretion by acting “[c]ontrary to the terms” of

the class notice’s assurances regarding the administration

of a class action), abrogated in part on other grounds by

Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d

Cir. 2000); cf. In re Chicken Antitrust Litigation, 810 F.2d

1017, 1019–20 (11th Cir. 1987) (recognizing principle but

finding no violation of the notice).

We see no basis for a departure from that principle

here. The class notice in each case before us unequivocally

All issuers that opted into the Common Ground class

did so after the sole notice in that case. In the Health Re-

public class, an initial notice was superseded, within ten

days, by the notice quoted above (identical to the Common

Ground notice), and the deadline for opting into the class

was still at least six weeks away. No argument has been

made to us to give distinctive treatment to class members

that opted in between the two notices in Health Republic

(as such members seemingly could have rescinded initial

opt-ins, before the deadline, had there been no modifica-

tion). We therefore treat the deal as applying to all persons

that joined the class.

Case: 22-1018 Document: 51 Page: 14 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

stated that a lodestar cross-check would be conducted by

the Claims Court in its determination of a reasonable at-

torney’s fee. In each case, developments in the litigation

subsequent to the notice and the choices to join the class

did not make the process of a cross-check no longer mate-

rial to a proper adjudication of how much money would be

subtracted from the class recovery to pay counsel. In these

circumstances, the law required a lodestar cross-check,

contrary to the Claims Court’s conclusion. And because

each class-action notice referred simply to a “lodestar cross-

check,” what was promised and therefore required was ap-

plication of the scrutiny and accompanying standards gen-

erally bearing that name in attorney’s-fee case law.

Because of what the class notices promised, we need

not decide whether a lodestar cross-check would be re-

quired here had there been no class notices requiring it. It

is evident, however, that the policies that govern a court’s

determination of a “reasonable” percentage-of-the-fund at-

torney’s fee under Rule 23(h), noted infra, might well call

for a lodestar cross-check as part of the inquiry at least as

a general matter. See Vizcaino v. Microsoft Corp., 290 F.3d

1043, 1050 (9th Cir. 2002) (“Calculation of the lodestar,

which measures the lawyers’ investment of time in the lit-

igation, provides a check on the reasonableness of the per-

centage award. Where such investment is minimal, as in

the case of an early [resolution], the lodestar calculation

may convince a court that a lower percentage is reasonable.

Similarly, the lodestar calculation can be helpful in sug-

gesting a higher percentage when litigation has been pro-

tracted. Thus, while the primary basis of the fee award

remains the percentage method, the lodestar may provide

a useful perspective on the reasonableness of a given per-

centage award.”); Goldberger, 209 F.3d at 50 (“[T]he lode-

star remains useful as a baseline even if the percentage

method is eventually chosen. Indeed, we encourage the

Case: 22-1018 Document: 51 Page: 15 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

The Claims Court in this case did not perform the re-

quired lodestar cross-check. The court did note what the

implicit multiplier would be for the $185 million award if

the hours and rates asserted by Quinn Emanuel were ac-

cepted, and it stated, citing three judicial decisions in sup-

port, that “even if the Court applied the lodestar cross-

check, a multiplier of 18–19 would, at least, not be outside

the realm of reasonableness.” Health Republic, 156 Fed.

Cl. at 82. That analysis does not suffice even apart from

the lack of scrutiny of the lodestar figure itself.

The Claims Court did not give required consideration

or weight to pertinent principles and to consensus norms

based on those principles. Two principles of central im-

portance here were articulated and implicitly endorsed by

the Supreme Court in a non-class-action case discussing

fees to be paid from a recovery even when agreements be-

tween counsel and plaintiffs set a presumptive fixed per-

centage: “If the benefits are large in comparison to the

amount of time counsel spent on the case, a downward ad-

justment is . . . in order”; and “[a] court should disallow

windfalls for lawyers.” Gisbrecht v. Barnhart, 535 U.S.

789, 808 (2002) (internal quotation marks and citation

omitted). Those principles are reflected in various circuit-

court decisions in the class-action setting. See, e.g., In re

Bluetooth Headset Products Liability Litigation, 654 F.3d

practice of requiring documentation of hours as a ‘cross

check’ on the reasonableness of the requested percentage.”

(quoting In re General Motors Corp. Pick-Up Truck Fuel

Tank Products Liability Litigation, 55 F.3d 768, 820 (3d

Cir. 1995))). No concrete, persuasive arguments to the con-

trary have been presented to us. But we need not and do

not decide the question.

Case: 22-1018 Document: 51 Page: 16 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

935, 942 (9th Cir. 2011) (“Thus, for example, where award-

ing 25% of a ‘megafund’ would yield windfall profits for

class counsel in light of the hours spent on the case, courts

should adjust the benchmark percentage . . . .”); Walmart

Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 122 (2d Cir.

2005) (“Recognizing that economies of scale could cause

windfalls in common fund cases, courts have traditionally

awarded fees for common fund cases in the lower range of

what is reasonable.”); In re Cendant Corp. PRIDES Litiga-

tion, 243 F.3d 722, 736 (3d Cir. 2001) (“[A]bsent unusual

circumstances, the percentage will decrease as the size of

the fund increases.”); In re Prudential Insurance Co. Amer-

ica Sales Practice Litigation Agent Actions, 148 F.3d 283,

339 (3d Cir. 1998)) (“[I]n many instances the increase in

recovery is merely a factor of the size of the class and has

no direct relationship to the efforts of counsel.” (cleaned up)

(quoting In re First Fidelity Bancorporation Securities Lit-

igation, 750 F. Supp. 160, 164 n.1 (D.N.J. 1990))); Gold-

berger, 109 F.3d at 49 (noting that courts should “prevent

unwarranted windfalls for attorneys”).

Here, the Claims Court did not apply those principles.

Indeed, it indicated a contrary view. The Claims Court

noted that “[w]here a successful lawsuit results in a multi-

billion-dollar award, even a minute fee percentage can re-

sult in a sizeable award to counsel, the case at hand being

such an example.” Health Republic, 156 Fed. Cl. at 81. But

it used that fact as a reason to approve, not reduce, Quinn

Emanuel’s request. Id. at 79 (small percentage of recovery

“weigh[ed] heavily” in favoring approval of requested fee).

Those principles are reflected in judicial decisions that

establish a relevant norm far below an implicit multiplier

of 18 to 19. For a lodestar cross-check, “the resulting mul-

tiplier need not fall within any pre-defined range,” In re

Rite Aid, 396 F.3d at 307 & n.17, but “[e]ven when the lode-

star method is used only as a cross-check, ‘courts must take

care to explain how the application of a multiplier is justi-

fied by the facts of a particular case,’” In re Cendant, 243

Case: 22-1018 Document: 51 Page: 17 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

F.3d at 742 (footnote omitted) (quoting In re Prudential,

148 F.3d at 340–41). In particular, a court must provide

sufficient analysis and “[c]onsideration of multipliers used

in comparable cases” to justify the award made. In re Rite

Aid, 396 F.3d at 307 & n.17. More particularly still, a court

should “examine[] the reasoning behind . . . awards in cases

of similar size.” In re Cendant, 243 F.3d at 737. “[C]ourts

setting attorneys’ fees in cases involving large settlements

must avoid basing their awards on percentages derived

from cases where the settlement amounts were much

smaller.” Id. at 736.

That approach is consistent with the principles en-

dorsed by the Supreme Court. And it does not exclude tak-

ing full account of the relevant attorney-fees considerations

as they apply to a particular case. For example, the parties

before us do not dispute that such considerations may in-

clude the risk of nonpayment in a contingency-fee common-

fund arrangement, see, e.g., In re Synthroid Marketing Lit-

igation, 325 F.3d 974, 978 (3d Cir. 2003), and the interest

in “sustain[ing] the incentive for attorneys to continue to

represent such clients,” Florin v. Nationsbank of Georgia,

N.A., 60 F.3d 1245, 1247 (7th Cir. 1995). See also Fed. R.

Civ. P. 23, 2003 Advisory Committee Note (“In determining

a fee for class counsel, the court’s objective is to ensure an

overall fee that is fair for counsel and equitable within the

class.”).

A number of courts have surveyed relevant fee awards

and noted a norm of implicit multipliers in the range of 1

to 4. See Vizcaino, 290 F.3d at 1051 n.6 (surveying percent-

age-based attorney’s fee awards in common fund cases of

$50–200 million from 1996 through 2001, “with most . . .

from 1.0–4.0 and a bare majority . . . in the 1.5–3.0 range”);

In re Cendant, 243 F.3d at 737–38, 742 (completing a sim-

ilar survey and reaching a similar conclusion); In re Pru-

dential, 148 F.3d at 341 (“[M]ultiples ranging from one to

four are frequently awarded in common fund cases when

the lodestar method is applied.” (quoting 3 Newberg on

Case: 22-1018 Document: 51 Page: 18 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

Class Actions § 14.03 at 14–15)). Quinn Emanuel recog-

nized the same at oral argument before us. Oral Arg. at

30:43–31:12 (Q: “Do you agree that as a general matter the

lodestar multiplier tends to be between the range of 1 and

4?” A: “I think that is true in terms of the reported deci-

sions . . . .”). A multiplier of 18 or 19 is far outside the

evident relevant norm and so would require exceptional

justification.

The Claims Court cited three decisions as approving

implicit multipliers of an order of magnitude akin to the

18-to-19 implicit multiplier based on Quinn Emanuel’s fig-

ures here. Health Republic, 156 Fed. Cl. at 82 (citing Stop

& Shop Supermarket Co. v. SmithKline Beecham Corp.,

2005 WL 1213926 (E.D. Pa. May 19, 2005); In re Merry-Go-

Round Enterprises, Inc., 244 B.R. 327 (Bankr. D. Md.

2000); and Americas Mining Corp. v. Theriault, 51 A.3d

1213 (Del. 2012)). But the existence of outliers does not

negate the existence of a norm. The Claims Court did not

discuss the three decisions, aside from noting the multipli-

ers in each case. And the cited decisions offer particularly

weak support for the implicit multiplier here.

The court that decided Americas Mining was not a fed-

eral court, was not applying federal-law standards, and did

not actually conduct a lodestar cross-check. 51 A.3d at

1253–58. In Stop & Shop, the district court’s award corre-

sponded to a 15.6 multiplier, but none of the class members

objected to the award—rather, plaintiffs offered “extraor-

dinary support . . . for counsel’s request for fees.” 2005 WL

1213926 at *18. And Merry-Go-Round was a bankruptcy

proceeding in which the bankruptcy court concluded that a

court-approved fixed-percentage contingency agreement

between counsel and the bankruptcy trustee was reasona-

ble under 11 U.S.C. § 328(a), that enforcement of the agree-

ment was not “unethical” under the rules of professional

conduct despite a lodestar multiplier of 19.6, and that the

matter was not subject to the standards for assessing fees

in common-fund class actions. 244 B.R. at 337–38, 343–44.

Case: 22-1018 Document: 51 Page: 19 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

The three decisions cited by the Claims Court do not justify

a conclusion that the award here is consistent with “re-

sponsible discretionary parameters.” In re Cendant, 243

F.3d at 742.

The Claims Court erred in another way as well. In

stating simply that an implicit multiplier of 18 to 19 was

not outside “the realm of reasonableness,” Health Republic,

156 Fed. Cl. at 82, the Claims Court misconceived its task

as one in which the request for fees was presumptively to

be granted, subject only to challengers’ demonstration that

the request is outside the range of reasonableness and

must be reduced. In fact, the Claims Court pervasively

framed its inquiry that way once it decided to apply the

percentage-of-the-fund method. See, e.g., id. at 77 (pro-

ceeding “to evaluate the reasonableness of Class Counsel’s

requested fee” (emphasis added)); id. (finding “nothing in

this category [quality of counsel] that justifies a reduction

in the requested fee” (emphasis added)); id. at 79 (applying

risk factor to “support[] [counsel’s] fee request”); id. at 81

(stating that task is “to evaluate the reasonableness of

Class Counsel’s fee request,” and addressing “why a reduc-

tion of fees is not justified” (emphases added)).

That approach was improper. This is not a case in

which a class notice stated that a fixed percentage of recov-

ery would be awarded unless the court determines it to be

unreasonable. Cf. Gisbrecht, 535 U.S. at 808 (discussing a

contingency-fee agreement reviewed only for reasonable-

ness by a court). The class notice in each case before us

stated a maximum possible request and that the court it-

self would determine the proper fee. See supra p. 8. At

least in such a case, although a range of reasonableness

undisputedly exists, see Health Republic, 156 Fed. Cl. at

82; Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 340 (1st

Cir. 2008), the court’s task is to make its own determina-

tion of what fee to award, within the range of reasonable

Case: 22-1018 Document: 51 Page: 20 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

possibilities, considering the relevant principles and prec-

edents addressing comparable facts.

The Claims Court did not identify, and Quinn Emanuel

has not cited, any authority that defines the adjudicator’s

task, in these circumstances, as determining the range of

reasonableness and awarding the top end or whatever class

counsel requests below that top end. And where there is

no agreement by the class to a specified percentage subject

only to an unreasonableness check, such an approach

would be contrary to the widespread recognition that the

trial court has a “fiduciary duty” to protect the interests of

the class, given the general non-alignment of the interests

of class counsel and the class when a common-fund fee is

proposed. See In re Optical Disk Drive Products Antitrust

Litigation, 959 F.3d 922, 930, 934–35 (9th Cir. 2020); In re

Washington Public Power Supply Systems Securities Liti-

gation, 19 F.3d 1291, 1302 (9th Cir. 1994) (“Because in com-

mon fund cases the relationship between plaintiffs and

their attorneys turns adversarial at the fee setting stage,

courts have stressed that when awarding attorneys’ fees

from a common fund, the [arbiter] must assume the role of

fiduciary for the class plaintiffs.”); id. (“[A]t the fee-setting

stage, plaintiffs’ counsel, otherwise a fiduciary for the class,

has become a claimant against the fund created for the ben-

efit of the class. It is obligatory, therefore, for the trial

court judge to act with a jealous regard to the rights of

those who are interested in the fund in determining what

a proper fee award is.” (cleaned up)); Skelton v. General

Motors Corp., 860 F.2d 250, 253 (7th Cir. 1988) (“The court

becomes the fiduciary for the fund’s beneficiaries and must

carefully monitor disbursement to the attorneys by scruti-

nizing the fee applications.”); In re Fine Paper Antitrust

Litigation, 751 F.2d 562, 583 (3d Cir. 1984) (“[F]ee requests

from the resulting equitable fund in court must be sub-

jected to heightened judicial scrutiny.”); Goldberger, 209

F.3d at 52 (reaffirming the standard of fiduciary duty); Ge-

neva Rock Products, Inc. v. United States, 119 Fed. Cl. 581,

Case: 22-1018 Document: 51 Page: 21 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

593 (2015) (“Under RCFC 23(h), the court has a fiduciary

duty to independently review the reasonableness of class

counsel’s proposed fee.”), rev’d in part on other grounds by

Longnecker Property v. United States, 2016 WL 9445914

(Fed. Cir. Nov. 14, 2016); see also In re Continental Illinois

Securities Litigation, 962 F.2d 566, 568 (7th Cir. 1992) (re-

viewing and reversing a district court’s fee award on behalf

of the class though no class member objected).

The Claims Court stated that the “Objectors are seek-

ing to pay an infinitesimal portion of their recovery to

[Quinn Emanuel] in attorney’s fees.” Health Republic, 156

Fed Cl. at 81. But the “portion” of the recovery is not all

that matters: Quinn Emanuel, with court approval, ex-

pressly promised a lodestar cross-check, whose focus is the

actual dollar amount based on hours worked and hourly

rates. Quinn Emanuel’s numbers for hours and rates, even

if accepted, would produce a lodestar of approximately $10

million, and Quinn Emanuel’s $185 million proposal is

huge compared to that figure, whereas the Objectors’ dollar

proposal of $8.828 million is pretty close to it. And to the

extent that the Claims Court was suggesting that it could

default to adopting the requester’s proposal just because it

deemed the Objectors’ proposal too low, we see no basis for

such a suggestion. One proposal may be too high and the

other too low, with a third figure (proposed by no one) being

best supported by the evidence. The Claims Court did not

identify, and Quinn Emanuel has not cited, authority that

requires or supports adoption of the position of the re-

quester in that circumstance. Indeed, such an approach

would run counter to a federal trial court’s responsibility to

“ensure that the amount and mode of payment of attorney

fees are fair and proper whether the fees come from a com-

mon fund or are otherwise paid[, e]ven in the absence of

objections,” Fed. R. Civ. P. 23(h), 2003 Advisory Committee

Note, and to the placement of the burden regarding fees on

the fees claimant in other contexts where there is no ad-

vance client agreement to a fixed amount, see Blum, 465

Case: 22-1018 Document: 51 Page: 22 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

U.S. at 895–96 n.11 (stating, in case involving lodestar

method, that burden is on fee claimant to support a fee

award); Hensley v. Eckerhart, 461 U.S. 424, 433, 437 (1983)

(same regarding lodestar components); Rumsey v. Depart-

ment of Justice, 866 F.3d 1375, 1379 (Fed. Cir. 2017)

(same).

For the reasons discussed, we must vacate the award

of fees and remand for reconsideration. That reconsidera-

tion must include a lodestar cross-check in accordance with

this opinion, including an assessment of whether there is

sufficient justification for an award with an implicit multi-

plier outside the mainstream of relevant multipliers. We

do not see such justification in what Quinn Emanuel has

presented to us.

As part of the lodestar cross-check on remand, the

Claims Court should also readdress the Objectors’ conten-

tions that Quinn Emanuel has not done enough to justify

the lodestar itself—the approximate number of hours and

blended rates used to produce the 18-to-19 implicit multi-

plier. More relaxed specificity and documentation stand-

ards apply to examination of the lodestar in a percentage-

of-the-fund case compared to the standards applied when

the lodestar method is directly used to set the fee (espe-

cially where paid by the adverse party). See In re Rite Aid,

396 F.3d at 306 (“The lodestar cross-check calculation need

entail neither mathematical precision nor bean-counting.”

(footnote omitted)). But the Claims Court should provide

more explanation than so far presented concerning the ad-

equacy of Quinn Emanuel’s hours and rates in light of the

Objectors’ criticisms. See Health Republic, 156 Fed. Cl. at

81–82.

One final point. We have concluded that the court

must honor the class-notice commitments if, as here, they

remain material to the court’s task and that the court in

this case may not treat the request as presumptively the

Case: 22-1018 Document: 51 Page: 23 Filed: 01/31/2023

HEALTH REPUBLIC INSURANCE COMPANY v. US

proper award but must play a more neutral role, character-

ized as a fiduciary one, in deciding what fee is warranted.

The Objectors argue that those conclusions may have a

bearing on aspects of the fee analysis beyond the lodestar

cross-check. Opening Br. at 48–53. On remand, the Claims

Court should reconsider any parts of its analysis affected

by the conclusions we have reached above.

III

For the foregoing reasons, we vacate the fee award and

remand for further proceedings consistent with this opin-

ion.

Costs are awarded to the appellants.

VACATED AND REMANDED

Case: 22-1018 Document: 51 Page: 24 Filed: 01/31/2023