concurring in the result:
But for the fact that the law of this case, by virtue of an earlier decision by a division of this court, 176 U.S.App.D.C. 326, 540 F.2d 1105 (1976), appears to be that appellant is entitled to attorney’s fees in some amount, I would have great difficulty in reaching that conclusion. The Supreme Court has, recently and emphatically, recognized and reaffirmed the American tradition to be that, in the absence of authorizing statute or contractual commitment, a successful litigant is not entitled to attorney’s fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); and see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967).
There is, of course, the judicially created exception where the efforts of one member of a class have brought into being a fund benefitting all the members of that class. F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). It was indeed by express reference to this exception that appellant first pressed upon the District Court his entitlement to attorney’s fees. In order for that exception to be operative, however, there must be before the court (1) a fund from which the fees can be paid, and (2) the *664members of the class to which it is to be distributed.1
Neither exists in this case. Although appellant asked the District Court not to permit the dividend payment in question until his claim against it had been satisfied, arguing that the dissipation of the fund would frustrate the legal theory on which that claim was based, he did not pursue all of the remedies available to him to prevent that dissipation. Neither did he ever seek certification of the asserted benefitted class who should share the burden of the fees.2
Viewing as I apparently must, however, the issue presently before us as confined to the propriety of the amount awarded by the judgment appealed from, I join in the affirmance for the reasons stated by Judge MacKinnon. Since the fixing of attorney’s fees resides in the District Court’s discretion, we are lacking in explication of how that discretion was exercised in this instance. But this litigation has been of long duration and has engaged this court’s attention a number of times.3
As Judge MacKinnon demonstrates, this court is quite familiar with the portion of appellant’s efforts that proved productive. That portion was far less than his total exertions, and the fee fixed comfortably accommodates it under any set of assumptions. In any event, appellees are not pressing an objection to the amount of the award, as distinct from its propriety in law, and urge its affirmance if any award is to be regarded as proper at all. Under these circumstances, I see no necessity for a further remand.
. For cases in this court recognizing the so-called fund-benefits exception, and the conditions under which it can effectively be applied, see Yablonski v. United Mine Workers of America, 151 U.S.App.D.C. 253, 466 F.2d 424 (1972); Schleit v. British Overseas Airways Corp., 133 U.S.App.D.C. 273, 410 F.2d 261 (1969); Walsh v. National Savings & Trust Co., 101 U.S.App.D.C. 195, 247 F.2d 781 (1957); Washington Gas Light Co. v. Baker, 90 U.S.App.D.C. 98, 195 F.2d 29 (1951). Generally, see Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).
. When appellees on their own initiative sought a determination of the class question, the District Court ruled that the action was not properly to be regarded as a class action. In Altman v. Central of Georgia Ry. Co., 159 U.S.App.D.C. 402, 404 n.4, 488 F.2d 1302, 1304 n.4 (1973), this court referred to this ruling with seeming approval insofar as it appeared to reflect the requirement of Rule 23(a)(1), FRCP, that the class be so numerous as to make joinder of the members impracticable. In the case before us the small number of shareholders affected by the dividend would appear to have made joinder feasible. Id.
. Altman v. Central of Georgia Ry. Co., 124 U.S.App.D.C. 155, 363 F.2d 284, cert. denied, 385 U.S. 920, 87 S.Ct. 231, 17 L.Ed.2d 144 (1966); Altman v. Central of Georgia Ry. Co., 159 U.S.App.D.C. 402, 488 F.2d 1302 (1973); Altman v. Central of Georgia Ry. Co., 176 U.S.App.D.C. 326, 540 F.2d 1105 (1976).