PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: MRRM, P.A., formerly
known as Law Offices of Ness,
Motley, Loadholt, Richardson &
Poole, former counsel to plaintiff
class,
Appellant,
In Re: RICHARDSON, PATRICK,
WESTBROOK & BRICKMAN,
Appellee,
and
In Re: SPEIGHTS & RUNYAN
CENTRAL WESLEYAN COLLEGE, on
behalf of itself and all others
similarly situated,
No. 04-1838
Plaintiff,
v.
W.R. GRACE & COMPANY; NATIONAL
GYPSUM COMPANY; UNITED STATES
GYPSUM COMPANY, a Delaware
Corporation; AC&S, INCORPORATED,
a Pennsylvania Corporation;
ACOUSTICS, INCORPORATED; A P
GREEN REFRACTORIES COMPANY, a
Delaware Corporation; AMCHEM
PRODUCTS, INCORPORATED; AMERICAN
ASBESTOS PRODUCTS COMPANY, a
California Corporation; AMERICAN
ENERGY PRODUCTS, INCORPORATED;
2 IN RE: MRRM, P.A.
ARMSTRONG WORLD INDUSTRIES,
INCORPORATED; ASBESTOS
CORPORATION, LIMITED; ASBESTOS
PRODUCT MANUFACTURING
CORPORATION; ASBESTOS
CORPORATION OF AMERICA
INCORPORATED; ASBESTOS FIBERS,
INCORPORATED; ASBESTOSPRAY
CORPORATION; ASTEN GROUP,
INCORPORATED; ATLAS ASBESTOS
CORPORATION, LIMITED; ATLAS
TURNER, INCORPORATED; BABCOCK &
WILCOX COMPANY, a Delaware
Corporation; BASIC, INCORPORATED, a
Delaware Corporation; BELL
ASBESTOS MINES, LIMITED; BRINCO
MINING LIMITED, formerly known as
Cassiar Resources Limited;
CALIFORNIA PRODUCTS CORPORATION;
CALIFORNIA PRODUCTS INTERNATIONAL
INCORPORATED; CAPE ASBESTOS
FIBRES, LIMITED; CAPE INDUSTRIES,
LIMITED; CAREY CANADA,
INCORPORATED; C. E. THURSTON &
SONS INCORPORATED, a Virginia
Corporation; THE CELOTEX
CORPORATION; CERTAINTEED
CORPORATION, a Maryland
Corporation; CERTAINTEED SALES
CORPORATION; CHARTER
CONSOLIDATED INVESTMENTS LIMITED;
CHARTER CONSOLIDATED, LIMITED;
CHARTER CONSOLIDATED SERVICES;
CHARTER INDUSTRIES; CHEMROCK
IN RE: MRRM, P.A. 3
CORPORATION; COMBUSTION
ENGINEERING, INCORPORATED; CROWN
CORK & SEAL COMPANY,
INCORPORATED, a New York
Corporation; DANA CORPORATION, a
Virginia Corporation; DODSON
MANUFACTURING COMPANY; EAGLE-
PICHER INDUSTRIES, INCORPORATED;
EMPIRE ACE INSULATION
MANUFACTURING CORPORATION, a
New York Corporation; EMPIRE
ASBESTOS PRODUCTS, INCORPORATED, a
New York Corporation; FIBREBOARD
CORPORATION; FLINTKOTE COMPANY, a
Massachusetts Corporation; FOSTER
WHEELER CORPORATION, Successor-
in-Interests to Forty-Eight
Insulations Incorporated, a New
York Corporation; GAF
CORPORATION; GARLOCK; GENERAL
REFRACTORIES COMPANY, US
Refractories Division; GEORGIA
PACIFIC CORPORATION, a Georgia
Corporation; GRANT WILSON,
INCORPORATED, an Illinois
Corporation; GREFCO, INCORPORATED,
Minerals Division; H & A
CONSTRUCTION CORPORATION,
formerly known as Spraycraft, a
New York Corporation; HAMILTON
MATERIALS, INCORPORATED, a
California Corporation; H. K.
PORTER INCORPORATED; HIGHLAND
STUCCO & LIME PRODUCTS,
INCORPORATED; HOLLYWOOD STUCCO
PRODUCTS, INCORPORATED;
4 IN RE: MRRM, P.A.
HUXLEY DEVELOPMENT CORPORATION;
IPA SYSTEMS, INCORPORATED, a
Pennsylvania Corporation; J. W.
ROBERTS, LIMITED; JOHN
CRANE-HOUDAILLE, INCORPORATED,
formerly known as Crane Packing
Company; KEENE CORPORATION;
KAISER REFRACTORIES, a division of
Kaiser Aluminum and Chemical
Corporation; KAISER GYPSUM
COMPANY; LAC D’AMAINTE DU
QUEBEC, LTEE; NICOLET,
INCORPORATED; OHIO LIME COMPANY;
OWENS-CORNING FIBERGLAS
CORPORATION; OWENS-ILLINOIS,
INCORPORATED; PITTSBURGH-CORNING
CORPORATION; PFIZER, INCORPORATED;
QUIGLEY COMPANY, INCORPORATED;
RAYMARK INDUSTRIES, INCORPORATED;
ROCK WOOL MANUFACTURING
COMPANY, INCORPORATED; RYDER
INDUSTRIES, INCORPORATED, a Texas
Corporation; SEALTITE TEXTILE
CORPORATION, a Delaware
Corporation; SOUTHERN TEXTILE, a
Delaware Corporation; SPECIAL
ASBESTOS COMPANY, INCORPORATED;
SPRAYON INSULATION & ACOUSTIC,
INCORPORATED; SPRAYED INSULATION
CORPORATION; SPRAYON RESEARCH
CORPORATION; STARR-DAVIS
COMPANY, INCORPORATED, a North
Carolina Corporation; STANDARD
INSULATIONS, INCORPORATED;
STANDARD ASBESTOS
MANUFACTURING AND INSULATING
COMPANY, a Missouri Corporation;
IN RE: MRRM, P.A. 5
TAF INTERNATIONAL, LIMITED,
formerly known as Turner Asbestos
Fibres, Limited; TURNER ASBESTOS
FIBRES, LIMITED, a Foreign
Corporation; TURNER & NEWALL,
LIMITED, a Foreign Corporation;
UNIROYAL INCORPORATED; USG
CORPORATION, a Delaware
Corporation; UNITED STATES
MINERAL PRODUCTS COMPANY;
VERMONT ASBESTOS GROUP, a
Vermont Corporation; VIMASCO
CORPORATION; WESTERN MINERAL
PRODUCTS COMPANY, INCORPORATED;
H. K. PORTER ASBESTOS TRUST,
Defendants.
BASIL H. THOMSON, JR.; JOHN G.
HILL, JR.; ROBERT L. POTTS; EARL V.
BROWN; ESTELLE A. FISHBEIN;
BEVERLY E. LEDBETTER; DENNIS C.
HART,
Amicus Curiae,
HIGHLANDS INSURANCE COMPANY;
AMERICAN REINSURANCE COMPANY;
CONCORDIA COLLEGE; FURMAN
UNIVERSITY; CLAFLIN UNIVERSITY;
NEWBERRY COLLEGE,
Movants.
6 IN RE: MRRM, P.A.
In Re: MRRM, P.A., formerly
known as Law Offices of Ness,
Motley, Loadholt, Richardson &
Poole, former counsel to plaintiff
class,
Appellant,
In Re: RICHARDSON, PATRICK,
WESTBROOK & BRICKMAN,
Appellee,
and
In Re: SPEIGHTS & RUNYAN
CENTRAL WESLEYAN COLLEGE, on
behalf of itself and all others
similarly situated,
No. 04-1859
Plaintiff,
v.
W.R. GRACE & COMPANY; NATIONAL
GYPSUM COMPANY; UNITED STATES
GYPSUM COMPANY, a Delaware
Corporation; AC&S, INCORPORATED,
a Pennsylvania Corporation;
ACOUSTICS, INCORPORATED; A P
GREEN REFRACTORIES COMPANY, a
Delaware Corporation; AMCHEM
PRODUCTS, INCORPORATED; AMERICAN
ASBESTOS PRODUCTS COMPANY, a
California Corporation; AMERICAN
ENERGY PRODUCTS, INCORPORATED;
IN RE: MRRM, P.A. 7
ARMSTRONG WORLD INDUSTRIES,
INCORPORATED; ASBESTOS
CORPORATION, LIMITED; ASBESTOS
PRODUCT MANUFACTURING
CORPORATION; ASBESTOS
CORPORATION OF AMERICA
INCORPORATED; ASBESTOS FIBERS,
INCORPORATED; ASBESTOSPRAY
CORPORATION; ASTEN GROUP,
INCORPORATED; ATLAS ASBESTOS
CORPORATION, LIMITED; ATLAS
TURNER, INCORPORATED; BABCOCK &
WILCOX COMPANY, a Delaware
Corporation; BASIC, INCORPORATED, a
Delaware Corporation; BELL
ASBESTOS MINES, LIMITED; BRINCO
MINING LIMITED, formerly known as
Cassiar Resources Limited;
CALIFORNIA PRODUCTS CORPORATION;
CALIFORNIA PRODUCTS INTERNATIONAL
INCORPORATED; CAPE ASBESTOS
FIBRES, LIMITED; CAPE INDUSTRIES,
LIMITED; CAREY CANADA,
INCORPORATED; C. E. THURSTON &
SONS INCORPORATED, a Virginia
Corporation; THE CELOTEX
CORPORATION; CERTAINTEED
CORPORATION, a Maryland
Corporation; CERTAINTEED SALES
CORPORATION; CHARTER
CONSOLIDATED INVESTMENTS LIMITED;
CHARTER CONSOLIDATED, LIMITED;
CHARTER CONSOLIDATED SERVICES;
CHARTER INDUSTRIES; CHEMROCK
8 IN RE: MRRM, P.A.
CORPORATION; COMBUSTION
ENGINEERING, INCORPORATED; CROWN
CORK & SEAL COMPANY,
INCORPORATED, a New York
Corporation; DANA CORPORATION, a
Virginia Corporation; DODSON
MANUFACTURING COMPANY; EAGLE-
PICHER INDUSTRIES, INCORPORATED;
EMPIRE ACE INSULATION
MANUFACTURING CORPORATION, a
New York Corporation; EMPIRE
ASBESTOS PRODUCTS, INCORPORATED, a
New York Corporation; FIBREBOARD
CORPORATION; FLINTKOTE COMPANY, a
Massachusetts Corporation; FOSTER
WHEELER CORPORATION, Successor-
in-Interests to Forty-Eight
Insulations Incorporated, a New
York Corporation; GAF
CORPORATION; GARLOCK; GENERAL
REFRACTORIES COMPANY, US
Refractories Division; GEORGIA
PACIFIC CORPORATION, a Georgia
Corporation; GRANT WILSON,
INCORPORATED, an Illinois
Corporation; GREFCO, INCORPORATED,
Minerals Division; H & A
CONSTRUCTION CORPORATION,
formerly known as Spraycraft, a
New York Corporation; HAMILTON
MATERIALS, INCORPORATED, a
California Corporation; H. K.
PORTER INCORPORATED; HIGHLAND
STUCCO & LIME PRODUCTS,
INCORPORATED; HOLLYWOOD STUCCO
PRODUCTS, INCORPORATED;
IN RE: MRRM, P.A. 9
HUXLEY DEVELOPMENT CORPORATION;
IPA SYSTEMS, INCORPORATED, a
Pennsylvania Corporation; J. W.
ROBERTS, LIMITED; JOHN
CRANE-HOUDAILLE, INCORPORATED,
formerly known as Crane Packing
Company; KEENE CORPORATION;
KAISER REFRACTORIES, a division of
Kaiser Aluminum and Chemical
Corporation; KAISER GYPSUM
COMPANY; LAC D’AMAINTE DU
QUEBEC, LTEE; NICOLET,
INCORPORATED; OHIO LIME COMPANY;
OWENS-CORNING FIBERGLAS
CORPORATION; OWENS-ILLINOIS,
INCORPORATED; PITTSBURGH-CORNING
CORPORATION; PFIZER, INCORPORATED;
QUIGLEY COMPANY, INCORPORATED;
RAYMARK INDUSTRIES, INCORPORATED;
ROCK WOOL MANUFACTURING
COMPANY, INCORPORATED; RYDER
INDUSTRIES, INCORPORATED, a Texas
Corporation; SEALTITE TEXTILE
CORPORATION, a Delaware
Corporation; SOUTHERN TEXTILE, a
Delaware Corporation; SPECIAL
ASBESTOS COMPANY, INCORPORATED;
SPRAYON INSULATION & ACOUSTIC,
INCORPORATED; SPRAYED INSULATION
CORPORATION; SPRAYON RESEARCH
CORPORATION; STARR-DAVIS
COMPANY, INCORPORATED, a North
Carolina Corporation; STANDARD
INSULATIONS, INCORPORATED;
STANDARD ASBESTOS
MANUFACTURING AND INSULATING
COMPANY, a Missouri Corporation;
10 IN RE: MRRM, P.A.
TAF INTERNATIONAL, LIMITED,
formerly known as Turner Asbestos
Fibres, Limited; TURNER ASBESTOS
FIBRES, LIMITED, a Foreign
Corporation; TURNER & NEWALL,
LIMITED, a Foreign Corporation;
UNIROYAL INCORPORATED; USG
CORPORATION, a Delaware
Corporation; UNITED STATES
MINERAL PRODUCTS COMPANY;
VERMONT ASBESTOS GROUP, a
Vermont Corporation; VIMASCO
CORPORATION; WESTERN MINERAL
PRODUCTS COMPANY, INCORPORATED;
H. K. PORTER ASBESTOS TRUST,
Defendants.
BASIL H. THOMSON, JR.; JOHN G.
HILL, JR.; ROBERT L. POTTS; EARL V.
BROWN; ESTELLE A. FISHBEIN;
BEVERLY E. LEDBETTER; DENNIS C.
HART,
Amicus Curiae,
HIGHLANDS INSURANCE COMPANY;
AMERICAN REINSURANCE COMPANY;
CONCORDIA COLLEGE; FURMAN
UNIVERSITY; CLAFLIN UNIVERSITY;
NEWBERRY COLLEGE,
Movants.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Sol Blatt, Jr., Senior District Judge.
(CA-87-1860-2-8)
IN RE: MRRM, P.A. 11
Argued: March 16, 2005
Decided: April 18, 2005
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: William Howell Morrison, MOORE & VAN ALLEN,
P.L.L.C., Charleston, South Carolina, for Appellant. Edward James
Westbrook, RICHARDSON, PATRICK, WESTBROOK & BRICK-
MAN, L.L.C., Mt. Pleasant, South Carolina, for Appellee. ON
BRIEF: Frederick C. Baker, MOTLEY RICE, L.L.C., Mt. Pleasant,
South Carolina, for Appellant.
OPINION
WILKINSON, Circuit Judge:
In this case we consider the appropriate allocation of a class action
attorney fee award among three law firms. The fee award itself was
previously approved and is not in controversy. Instead, one firm has
appealed the district court’s distribution of that award, essentially
claiming that its share was insufficient.
We affirm, albeit with reservations about the conclusory nature of
the district court’s order allocating the fee.
I.
For well over a decade, class counsel litigated and eventually set-
12 IN RE: MRRM, P.A.
tled an asbestos-related nationwide class action lawsuit on behalf of
colleges and universities. See Cent. Wesleyan Coll. v. W.R. Grace &
Co., 6 F.3d 177 (4th Cir. 1993) (affirming conditional certification of
the class). Class counsel were the firms Ness, Motley, Loadholt, Rich-
ardson & Poole ("Ness Motley")1 and Speights & Runyan. The even-
tual common fund totaled approximately $70 million.
In December 2001, class counsel petitioned the district court for
fees. They requested 28.75% of the cash recovery, amounting to
about $20 million. The district court approved the entire request, after
a thorough application of Barber v. Kimbrell’s, Inc., 577 F.2d 216,
226 (4th Cir. 1978) (adopting the twelve fee-shifting factors of John-
son v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).
The Barber factors include such considerations as the time and labor
required, the novelty or difficulty of the issues litigated, customary
fees in similar situations, and the quality of the results involved. The
district court thoroughly examined each of them. See JA 758-70.
The court acknowledged that the fee was being awarded even
though the work had not been completed. Indeed, the administration
of the common fund continues to this day. The district judge empha-
sized that "it is important to note that there is still much work to be
done in this case." The fee award was thus predicated on class coun-
sel’s duty to honor its obligations to the class.
Subsequent to the fee award, Edward Westbrook, a Ness Motley
partner, distributed 60% of the fee — 50% to Ness Motley and 10%
to Speights & Runyan. The remaining 40% was withheld due to diffi-
culties in determining its allocation. Westbrook was in a position to
do this because he had exercised primary leadership over the case
since its inception. However, in February 2002, several shareholders
— including Westbrook — left Ness Motley to form the new firm of
Richardson Patrick Westbook & Brickman ("RPWB"). The district
court, recognizing Westbrook’s role, agreed that he and his new firm
1
Between December 2001 and the present — the times most relevant
to this case — Ness Motley has used a variety of different names.
Although it is currently known as MRRM, P.A., as shown in the caption
of this case, to minimize confusion we will refer to it throughout as
"Ness Motley."
IN RE: MRRM, P.A. 13
should continue as co-lead class counsel. Thus, there were now three
firms involved in the settlement, the administration, or both: Ness
Motley, Speights & Runyan, and RPWB.
In October 2003, following unsuccessful attempts among the three
firms to allocate the remaining 40% of the award, Westbrook peti-
tioned the district court to divide it. On May 27, 2004, the district
court held oral argument for this purpose. It began by inviting West-
brook and Daniel Speights to meet privately in the courthouse library
and emerge with a recommendation. Unsurprisingly, an attorney for
Ness Motley objected to being excluded from this meeting. West-
brook and Speights nonetheless met and agreed that the entire fee be
divided such that, out of the total, Ness Motley receive 51%, Speights
& Runyan receive 34%, and RPWB receive 15%. The court allowed
Ness Motley an opportunity to respond with its own proposal —
namely, that it deserved the entire remaining unallocated fee (or 90%
of the total), that Speights & Runyan should receive only the 10% that
it already had been given, and RPWB deserved nothing at all.
Roughly half-way through the hearing, the district judge com-
mented that "I’m impressed by the — I can visualize trying to pay out
this money to all these colleges, that job is going to be one terrific job,
I understand that." During oral argument before the court of appeals,
in fact, counsel continually repeated this very sentence in attempting
to assure us that adequate reasons for the allocation existed. At the
end of the district court hearing, without having explained what it was
that particularly persuaded him, the judge stated:
Well, it’s got to end. The whole thing has got to end. I’ve
listened to the argument, the arguments have been convinc-
ing. I’m going to write a very short order, based on the argu-
ments this day heard. And I think that the arguments have
caused me to change my mind somewhat.
The judge then stated that his allocation was based on $20 million:
I’m going to award Speights and Runyan six million five;
[Ness Motley], eleven million; and [RPWB], two million
five. Now, that’s it. I’m going to put that in the order, based
14 IN RE: MRRM, P.A.
on a twenty million dollar fee, and direct the attorneys to
work out the mechanics.
He made no further explanation, but before departing the bench, the
judge acknowledged "that there isn’t anybody particularly happy with
the division, but I guess you can’t satisfy everybody. If there were a
way to do that, I’d like to do it. But after listening to the arguments,
I think that’s a reasonable division."
On June 28, 2004, the district court entered an order reflecting this
allocation, "[f]or the reasons stated at hearing, and in consideration of
the applicable law and facts . . . ." The court stated that RPWB was
to be compensated for its work, as were the other firms. The district
court alluded generally to this point in a footnote in its order.2
Ness Motley timely appealed. We review fee allocations, like the
initial award of an attorney fee, under an abuse of discretion standard
of review. Barber, 577 F.2d at 226. Because Ness Motley has given
us no reason sufficient to reverse under this deferential standard, we
affirm, albeit with reservation.
II.
Ness Motley raises substantive and procedural challenges to the
allocation in favor of RPWB.
A.
Ness Motley believes that the district court erred in awarding
RPWB any fees at all, and that even if RPWB is entitled to some fees,
the district court awarded it too great a share. Ness Motley empha-
sizes that the fee has already been awarded, explicitly conditioned on
counsel continuing to administer the common fund and to meet all
2
The footnote explained: "This amount is awarded to cover the work
the Richardson, Patrick firm must expend, independent of the former
Ness, Motley firm, to resolve all remaining issues regarding December
21, 2001 Settlement Fund. This includes the costs which may be incurred
to research and finalize a potential re-calculation of the total attorneys’
fees award due to an unforeseen tax issue."
IN RE: MRRM, P.A. 15
other obligations class counsel owes to the class. According to Ness
Motley, RPWB, largely composed of individuals who have already
been paid from Ness Motley’s share of the fee (and who, consistent
with their separation agreement, will receive a portion of any future
allocations), should not be paid "twice." Had Westbrook not withheld
40% of the fee before leaving Ness Motley, it says, there would be
no more money for RPWB to claim.
We are not persuaded that any of these arguments require that, as
a matter of law, RPWB receive no part of the fee. RPWB continues
to perform significant services on behalf of the class. The allocation
does not pay anyone "twice." The simple fact that the case now
involves three parties and the members of one party were formerly
employed by another does not render their continued remuneration
objectionable. The allocation instead simply adjusts the payment
among the parties to reflect the efforts of each. We find no abuse of
discretion in including RPWB.
B.
We are more concerned, however, about the procedural question
Ness Motley has raised. While we agree that RPWB is entitled to
some portion of the fee, the district court has made it difficult for us
to ascertain why RPWB has been given the particular amount that the
court found appropriate. On this basis, Ness Motley urges us to vacate
the allocation and remand for application of the Barber factors.
We fully recognize that the district court’s close familiarity with
this case extends to the issue of attorney fees. Indeed, the district
court demonstrated such familiarity in its thorough application of the
Barber factors to award attorney fees in the first place. For this rea-
son, we cannot accept Ness Motley’s invitation to impose Barber
once more. Many of the Barber factors are inapplicable to questions
of how a fee should be divided. Moreover, when, as here, Barber has
clearly been meticulously applied and a significant portion of the
resulting fee divided without objection, a rule requiring reapplication
of Barber for every subsequent dispute would eviscerate the abuse of
discretion standard and encourage vexatious application to the court.
In declining to require district courts to apply Barber in this con-
text, we join other courts of appeals which have approved fee alloca-
16 IN RE: MRRM, P.A.
tions among co-counsel for reasons that did not involve the Barber
factors. See, e.g., In re FPI/Agretech Sec. Litig., 105 F.3d 469 (9th
Cir. 1997); Smiley v. Sincoff, 958 F.2d 498 (2d Cir. 1992). Yet while
these courts did not require anything like reapplication of the Barber
factors, neither were they willing to accept an allocation without rea-
sons spelled out by the district court. In Smiley, the Ninth Circuit was
able to quote at length from the district court’s allocation order. Id.
at 502. FPI/Agretech, in turn, repeated that, in the allocation context,
"[s]o long as the district court provides a ‘concise but clear explana-
tion’ of its reasons, and those reasons are supported by the record, the
reviewing court should accept its decision." FPI/Agretech, 105 F.3d
at 473 (quoting id.).
Thus, the district court’s familiarity with the case should have led
to a greater precision and effort in explaining fee allocation decisions
than the district court provided, especially considering the substantial
sums involved and the somewhat speculative nature of the future ser-
vices. Without precise reasons from the district court, appellate courts
are in danger of being left without any real basis to review the deci-
sion. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). The dis-
trict court stated that it found the allocation to be "reasonable," but
declined to offer us much basis as to why this was so.
We nonetheless decline to remand. A charitable construction of
comments from the bench — especially the recognition that the con-
tinuing administration of the fund is "one terrific job" — might link
the eventual allocation to the fact that RPWB has substantial continu-
ing obligations to the class. Those obligations were explained in great
detail by counsel, both below and on appeal, and the court’s com-
ments hint that this explanation of the work was what influenced its
decision. For instance, RPWB must guard millions of dollars of the
class’s fund that have been jeopardized by IRS action. It must protect
part of the settlement itself — particularly the $25 million W.R.
Grace rebate — within the confines of bankruptcy law. And even
assuming away any threat to the class recovery itself, the process of
distributing the common fund in a manner that satisfies the members
of the class and the Settlement Advisory Committee will require
energy, patience, and diplomacy.
We recognize that this circuit has not heretofore given specific
instructions to district courts as to the nature of their discretion in this
IN RE: MRRM, P.A. 17
precise context. Although we do not anticipate from district courts a
full-blown Barber analysis when faced with issues of this sort, some-
thing more than threadbare justification is to be expected when a fee
allocation involves large sums for future services. In short, district
courts should explain in clear terms, even if only briefly, the reasons
that an allocation this substantial is justified. We affirm this alloca-
tion, because the circumstances of this case have allowed us to sur-
mise the basis for the exercise of the district court’s discretion and
because appellant has given us no real reason to believe that this dis-
cretion has been abused.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.