PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ In re: SYNGENTA AG MIR 162 CORN LITIGATION (Toups/Co ffman Plaintiffs’ Counsel) 

––––––––––––––––––– –––––––––––––––– In re: SYNGENTA AG MIR 162 CORN LITIGATION (Kansas Common Benefit Firms) *

––––––––––––––––––– –––––––––––––––– In re: SYNGENTA AG MIR 162 CORN LITIGATION (Byrd/Shields Group)  *

––––––––––––––––––– –––––––––––––––– In re: SYNGENTA AG MIR 162 CORN LITIGATION (Johnson Becker, PLLC)

––––––––––––––––––– ––––––––––––––––In re: Syngenta AG MIR162 (HossleyEmbry Group)

––––––––––––––––––– –––––––––––––––– In re: SYNGENTA AG MIR 162 CORN Nos. 19-3008, 19-3022 , 19-3079, 19-3176, 19-3280

Nos. 19-3032, 20-3002

No. 19-3174

No. 19-3175

No. 19-3178

 The parties to the appeals filed by T oups/Coffman Plaintiffs’ Counsel and the Kansas Common Benefits Firms can be found in the Joint Response on Parties to these Appeals filed on March 15, 2019.

** The parties to the appeals filed by th e Byrd/Shields Group can be found in the Response on Parties to Appeal No. 19-3174 filed on September 18, 2019, the Supplemental Response on Par ties to Appeal No. 19-3174 filed on October 9, 2019, and the court’s order of November 25, 2019. FILED United States Court of Appeals Tenth Circuit 

### February 28, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 12 LITIGATION (Law Office of Craig Eiland, P.C.)

––––––––––––––––––– –––––––––––––––– In re: SYNGENTA AG MIR 162 CORN LITIGATION (Demerath Group) No. 19-3279

No. 19-3284

________________ _________________ Appeals from the United States District Court for the District of Kansas (D.C. No. 2:14-MD-02591-JWL-JPO)

________________ _________________ Eric Alan Isaacson, Law Office of Eric Alan Isaacson, La Jolla, California (Mitchell A. Toups, Weller, Green Toups & Terrell, LLP, B eaumont, Texas; Richard L. Coffman, The Coffman Law Firm, Beaumont, Texas; D. A llen Hossley, Hossley-Embry, LLP, Dallas, Texas, with him on the briefs), the Toups/ Coffman Plaintiffs’ Counsel & Hossley-Embry for the Kansas Pool Appellants. Christina J. Nielsen, Nielsen Law Firm, Woo dbridge, Virginia, Jeffr ey A. Lamken, Eric R. Nitz, and Caleb Hayes-Deats, MoloLa mken LLP, Washington, D.C., William P. Ferranti, The Ferranti Firm LLC, Portla nd, Oregon, and Thomas J. Wiegand and Matthew J. Fisher, MoloLamken , Chicago, Illinois, for the Minnesota Appellants Watts Guerra, LLP, Paul Byrd Law Firm, PL LC, and Shields Law Group, LLC. David Campbell, O’Ha nlon, Demerath & Castillo, PC , Austin, Texas (Justin B. Demerath, O’Hanlon, Demerath & Castillo, PC, Austin, Texas; A. Craig Eiland, The Law Offices of A. Craig Eiland, PC, Austin, Texa s, with him on the briefs), for the Illinois Appellants, and Clayton A. Cl ark and Scott A. Love, Clark Love Hutson, H ouson, Texas, and Martin J. Phipps, Phipps Anderson Deacon LLP, San Antonio, Texas, and Peter J. Flowers, Meyers & Flowers, LLC, St. Charles, Illinois, joined in th e supplemental brief for The Clark/Phipps Group. Timothy J. Becker (Michael K. Johnson with him on the briefs) Johnson Becker, PLLC, Saint Paul, Minnesota, for Appellants. Bradley T. Wilders, Stueve Siegel Hanson LLP, Kansas City, Missouri, and William Lewis Garrison, Jr., Heninger Garrison Davis, LLC, Birmin gham, Alabama (Patrick J. Stueve and Rachel Schwartz, Stueve Siegel Hanson LLP, Kansas City, Missouri; Don M. Downing and Gretchen Garris on, Gray, Ritter & Graham, P.C., St. Louis, Missouri; William B. Chaney and Drew York, Gray Reed & McCraw, LLP, Dallas, Texas; Scott Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 23 Powell, Bruce McKee and Tempe Smith, Ha re Wynn Newell & Newton, Birmingham, Alabama; the MDL Co-Lead Plaintiffs’ Coun sel on behalf of Kans as Common Benefit; and Daniel E. Gustafson, Gustafson Gluek PLLC, Minneapolis, Minnesota; Lewis A. Remele, Jr., Bassford Remele, A Professiona l Association, Minneapolis, Minnesota and William R. Sieben, Schwebel Goetz & Si eben PA, Minneapolis, Minnesota the Minnesota Co-Lead Coun sel; and Christopher A. Seeger, Stephen A. Weiss, Diogenes P. Kekatos, Seeger Weiss LLP, Ridgefield Park , New Jersey, the Settlement Class Counsel; Christopher B. Hood, Heninger Garrison Davi s, LLC, Birmingham, Al abama, the Illinois Mass Action Lead Counsel, with them on the briefs) for the Joint Appellees.

________________ _________________ Before HOLMES , Chief Judge, and BACHARACH and McHUGH , Circuit Judges.

________________ _________________ HOLMES , Chief Judge. These appeals concern attorneys’ fees awarded following a historic class action settlement. Numerous plaintiffs from multip le different states—but, mainly, Kansas, Minnesota, and Illinois—sued Syngenta AG (“Syngenta”), an agricultural company. The suits against Syngenta were organized into complex, fe deral multi-district litigation (“MDL”) based in a court in the United States District Court for the District of Kansas (“Kansas district court”). Syngenta ultimatel y settled with the class action plaintiffs. The Kansas district court allocated approximately $503 million in attorneys’ fees and expense awards stemming from the settleme nt to the myriad firms partic ipating in the class action. Appellants in this case—the various plai ntiffs’ lawyers and law firms that took part in the MDL against Syngenta—challenge numerous orders published by the Kansas district court concerning the apportionment a nd allocation of that $503 million fee pie. Having concluded it possessed significant author ity to craft the allocation of attorneys’ fees in the most reasonable manner, the Kans as district court had adopted a two-stage, “general approach” of an appoi nted special master to the a llocation of the attorneys’ fee Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 34 award—“by which the award is first alloca ted among the three common benefit pools [i.e., for Kansas, Minnesota, and Illinois] and the IRPA pool [i.e., the pool for individually retained private attorneys],” Joint App., Vol. 23, at 5357 (Kan. D. Ct. Mem. and Order, filed Dec. 31, 2018) (“December 31, 2018, Fee Allocati on Order”), and then, second, disbursed to indivi dual firms. Appellees—also lawyers and law firms from Kansas, Minnesota, and Illinois, that acted as co-lead counsel (“CLCs” or “Leadership”) and by-and-large, spearheaded the litigation against Syngent a in the three main fora— oppose Appellants’ arguments, and they ask us to affirm the Kansas district court’s feeallocation orders. 1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we fully affirm the Kansas district court’s post-judgment attorneys’ fees orders challenged in these appeals.

1 The three relevant groups of appelle es in this action are the following: (a) the Kansas CLC, comprised of lawyers from Stueve Siegel Hanson LLP, Gray, Ritter, & Graham, P.C., Hare Wynn Newell & Newton, Gray Reed & McGraw, LLP, and all other firms and lawyers working at their directi on; (b) the Minnesota CLC, comprised of lawyers from Gustafson Gluek, PLLC, Bassf ord Remele, A Professional Association, Schewebel Goetz & Sieben PA, and all other firms and lawyers working at their direction; and (c) Heninger Garri son Davis, LLC, the law firm appointed as lead counsel in the relevant action in the U.S. District C ourt for the Southern District of Illinois which was also appointed Coordinate d Action Plaintiffs’ Liaison C ounsel in that district. Seeger Weiss LLP, which was the Settlement Cla ss Counsel in this action, is also a party to the appeal as an appellee. These law firm s and attorneys name th emselves as the Joint Appellees in this action. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 45 I. Background
A. Summary of the Litigation The appeals at issue here stem from various lawsuits filed against Syngenta. Syngenta commercialized and released two genetically mo dified (“GMO”) corn seeds under the brand names Agrisure Viptera and Agrisure Duraca de before obtaining China’s regulatory approval to import su ch genetically modified seeds. After discovering the Syngenta GMO corn seed s in its American imports, China closed its markets to American corn, depressing corn prices and thereby inju ring producers. Beginning in 2014, corn farmers and others in the corn industry filed thousands of lawsuits against Syngenta in several federal and state jurisdictions; thes e suits took various forms, including class actions, mass tort actions, and individual actions. 2 In December 2014, the Judicial Panel on Multidistrict Litigation consolidated hundreds of these suits into an MDL centered in the Kansas district court. A similar process occurred in Minnesota, where thousands of suits were cons olidated in a state court (“Minnesota state court”). And finally, si milar suits were litigat ed in a court in the United States District Court for the Southern District of Illi nois (“Illinois district court”).

2 Some corn producers wh o initially opted to file individual actions against Syngenta, as opposed to joining a class ac tion lawsuit, had a ch ange of heart and regretted their choice of pursuing individual cl aims. They separately sued the attorneys who allegedly inflated their legal fees by touting the bene fits to them of pursuing individual lawsuits, while conc ealing the benefits of class litigation. That lawsuit was ultimately dismissed by the Kansas district court as part of the MDL at issue here, a dismissal that we affirmed in Kellogg v. Watts Guerra LLP , 41 F.4th 1246 (10th Cir. 2022). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 56 In an order entered on January 22, 2015 , the Kansas district court appointed several attorneys as “co-lead counsel” for the Kansas MDL. Joint App., Vol. 21, at 4749 (Kan. Special Master’s R&R, filed Nov. 21, 2018) (“November 2018 Fee Allocation R&R”) (quoting Joint Ap p., Vol. 2, at 482 (Kan. D. Ct. Order Concerning Appointment of Counsel, filed Jan. 22, 2015)). “The or der authorized Kansas MDL Leadership, in their role as co-lead counsel, to ‘organize and supervise the efforts of plaintiffs’ counsel in a manner to ensure that the pretrial and tr ial preparation for the pl aintiffs is conducted effectively, efficiently, expeditiously, a nd economically’ and ‘to encourage full cooperation and efficiency amo ng all plaintiffs’ counsel.’” Id. (quoting Joint App., Vol. 2, at 482–83). On the Minnesota front, firms like Watts Guerra LLP (“Watts Guerra”), along with several others, brought thousands of individual and class action lawsuits in Minnesota state court against S yngenta. The Minnesota state court also appointed certain counsel to a Minnesota Plaintiffs’ Execu tive Committee to ensure “the efficient, coordinated litigation of the Minnesota cases.” Id. , Vol. 21, at 4752 . Attorneys from Watts Guerra and the Paul Byrd Law Firm , PLLC (“Byrd”) were among the several appointees. Meanwhile, in I llinois, multiple suits percolated through state and federal

court. Substantive discovery occurred across th e primary litigation sites (i.e., Kansas district court, Minnesota state court, and Illi nois district court). In September 2016, after an evidentiary hearing, the Ka nsas district court certified eight state-wide classes to pursue state-law tort and statutory claims. Following a three-week jury trial of these Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 67 state-law claims in June 2017, one of the Kansas classes obtained a $217,700,000 verdict against Syngenta. This was th e only completed class trial across the three jurisdictions, although one class trial was started, but not completed, in Minnesota. Following the Kansas jury verdict, Syngenta expre ssed renewed interest in pursuing a global settlement of all claims. Settlement negotiations initially began in March 2016—before the state-wide class certif ications—and the Kansas district court, along with its Minnesota and Illinois coun terparts, appointed Ellen Reisman as the Special Master for Settlement in the Syngenta litigation (“th e Kansas Special Master”). Two months after the June 2017 class action tr ial, the Kansas district court appointed a Plaintiffs’ Settlement Negotiating Committee (“ PNC”) to work toward a settlement with Syngenta. The PNC incl uded representatives of all the ma jor plaintiffs’ constituencies. Facing the risk of similar lo sses in Minnesota and other ve nues that could collectively total billions of dollars, Syngenta committed to settlement by late 2017. On February 23, 2018, a cl ass of farmers, certain grain handling facilities and ethanol production facilities, and various Syngenta entities reached a nationwide class action settlement (“the Settlement”) that resolv ed the claims. Syngenta agreed to pay a total of $1.51 billion in exchange for the release of all claims relating to the sale and marketing of its GMO corn products. As well, the agreement was contingent on certification of a nationwide settlement class for claims arising under the Lanham Act. The Settlement provided that an award of at torneys’ fees and expenses would be “separate from [the Kansas district court’ s] determination of whether to approve the [s]ettlement,” which would nevertheless bind the parties even if the Kansas district court Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 78 “denie[d], in whole or in part,” th e attorneys’ fees applications. Id. at 4744 (quoting Joint App., Vol. 5, at 1089–90 (Agrisure Viptera/ Duracade Class Settlement Agreement, dated Feb. 23, 2018)). The Settlement contemplated the involvement of the judges of the Kansas district court, the Illinois district court, and the Minnesota state court in the allocation of the total attorneys’ fees and expenses. Those judges, initially, were Judge John W. Lungstrum, Judge Davi d R. Herndon, and Judge Laurie J. Miller, respectively. Judge Herndon of the Illinois district court retired in January 2019, and Judge Nancy J. Rosenstengel replaced him and pres ided over the proceedings. On April 10, 2018, th e Kansas district court granted preliminary approval of the Settlement. After a settlement hearing on November 15, 2018 , the court further found the Settlement to be fair, reasonable, and adequate under the factors identified in Tennille v.
Western Union Co. , 785 F.3d 422, 434 (10th Cir. 2015 ). The court then tasked the Kansas Special Master with issuing a repor t and recommendation (R&R) on allocation of the aggregate attorneys’ fee award, wh ich she issued on November 21, 2018. On December 7, 2018, the Kansas district court entered its Aggregate Fee Order and Final Order and Judgment (“the Judgment”) pursuant to Rule 58 of the Federal Rules of Civil Procedure. The Judg ment memorialized the court’s approval of the Settlement, including certification of a global settlement class. The Aggreg ate Fee Order awarded one-third of the gross settlement amount—i .e., $503,333,333.33 ou t of the $1.51 billion settlement fund—as attorneys’ fees. The Aggregate Fee Order made clear that the allocation of this aggregate attorneys’ fee aw ard remained pending and incomplete. Then, in a Fee Allocation Orde r entered on December 31, 2018, following an objection Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 89 period and a hearing, the Kansas district court largely adopted the November 21, 2018, R&R on attorneys’ fee awar d allocation issued by the Kansas Special Master.
B. Aggregation and Allocation of the Attorneys’ Fee Award Below we summarize the filings relevant to the Kansas district court’s fee allocation process and, therefore, re levant to the instant appeals. To give a big picture account of wh at happened: The allocation process implemented by the court turn ed on a four-pool fee allocation scheme, featuring three “common benefit pools” corresponding w ith the Kansas, Minnesota, and Illinois litigations and an “IRPA pool” for the work of individually retained private attorneys (“IRPAs”). Attorneys were a ssigned to one of the three common benefit pools based on where they performed th e bulk of their work. They could then petiti on for an attorneys’ fee award from their designated pool for a ny common benefit work—i.e., work that benefitted the settlement class or the overa ll settlement negotiation process—irrespective of where that work was performed. To the Kansas common benefit pool, the cour t allocated slightly under half of the aggregate attorneys’ fee award; to the Minnesota pool, slightly less than a quarter; to the Illinois pool, just over 15%; and to the IRPA pool, 12%. The IRPA pool was intended to compensate attorneys for non -common benefit work they performed on behalf of individual clients, and attorneys’ recoveries would be dictated by their clients’ claim recoveries from the Settlement.
1. The Kansas District Court’s Aggr egate Fee Order & Final Order and Judgment Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 910 On December 7, 2018, the Kansas distri ct court approved the class settlement agreement. As stated, the court awarded on e-third of the gross settlement amount—i.e., $503,333,333.33 out of the $1. 51 billion settlement fund—as atto rneys’ fees. To start, the court concluded it “ha[d] authority to award attorney fees and expenses from the settlement fund” pursuant to Rule 23(h) of the Federal Rules of Civil Procedure, which “provides that ‘[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs th at are authorized by law.’” 3 Joint App., Vol. 22, at 5111 (Kan. D. Ct. Mem. and Order, filed Dec. 7, 2018) (second alteration in original) (quoting
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. P. 23(h)). Furthermore, the settlement agreement “expressly contemplate[d]

3 In full, Rule 23(h) provides: In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are auth orized by law or by the parties’ agreement. The following procedures apply: (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the moti on must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) A class member, or a party fr om whom payment is sought, may object to the motion. (3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a). (4) The court may refer issues relate d to the amount of the award to a special master or a magistra te judge, as provided in Rule 54(d)(2)(D).
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. P. 23(h)(1)–(4). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1011 an award of attorney fees a nd expenses to counsel who performed work for the benefit of the settlement class members.” Id. Attorneys’ fees were “also authorized under the common fund doctrine.” Id. “[P]ursuant to Rule 23(h) and the common-fund doctrine,” then, the district court “award[ed] a percen tage of the fund”—here, 33.33%—“sufficient to permit reasonable attorney fees for all work that contributed to the class settlement.” Id. at 5112. Next, the court set about justifying its per centage fee award. Guiding this analysis were the “so-called Johnson factors.” Id. at 5112–13; see Johnson v. Ga. Highway Express, Inc. , 488 F.2d 714 (5 th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron , 489 U.S. 87 (1989). 4 Additionally, “[i]n percentage -of-the-fund cases, courts often engage in a ‘cross-check’ of the fee aw ard against the lodestar figure accounting for counsel’s hours and hourly rates.” Joint App., Vol. 22, at 5113 (a lteration in original)

4 As we have had occasion to recite them, these factors—by which a court assesses the reasonableness and propriety of an attorneys’ fees award—are (1) the time and labor involved; (2) the novelty and difficulty of the questions; (3) the skill requisite to perfo rm the legal service properly; (4) the preclusion of other employment by the a ttorney due to acceptance of the case; (5) the customary fee; (6) any prea rranged fee—this is helpful but not determinative; (7) time limitations imposed by the client or the circumstances; (8) the amou nt involved and the results obtained; (9) the experience, reputation, and ability of the atto rneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Brown v. Phillips Petroleum Co. , 838 F.2d 451, 454–55 (10th Cir. 1988). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1112 (quoting In re: Urethane Antitrust Litig. , No. 04-1616-JWL, 2016 WL 4060156, at *7 (D. Kan. July 29, 2016)). 5
As to the Johnson factors, the court found that all but the eleventh factor “overwhelmingly support[ed]” a “substantial [fee] award.” Id. Summarizing, the court found that the one-third fee was reasonable b ecause: (1) “th[e] litigation required very extensive time and labor by plaintiffs’ attorneys ( Johnson factor 1)”; (2) the “good pace” of the litigation “required counsel to perfo rm their work subject to significant time limitations (factor 7)”; (3) the litigation “inv olved very novel and difficult questions of law and fact (factor 2)”; (4) “[t]he comple x and difficult nature of the litigation, which spanned across multiple jurisdic tions and which involved multip le types of plaintiffs and claims, required a great deal of skill from plai ntiffs’ counsel (factor 3)”; (5) “the most prominent and productive plaintiffs’ counsel in th[e] litigation were very experienced, had very good reputations, we re excellent attorneys, an d performed excellent work

5 The well-established lodestar met hod may be briefly described in the following manner: Under this [lodestar] approach, in de termining a reasonable fee award, a court must first multiply the hours re asonably spent by a nor mal hourly rate for noncontingent work to a rrive at a lodestar figure. This lodestar should then be further consider ed for adjustments, kn own as ‘multiples,’ for contingency and quality factors, when a ppropriate, in arriving at a reasonable fee. 1 Alba Conte, A TTORNEY F EE A WARDS § 2:3 (3d ed.), Westlaw (database updated June 2022). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1213 (factor 9)”; (6) “the demands of th[e] litigation, especially for lead counsel in the various courts, precluded other employment . . . (factor 4)”; (7) “a one-third fee is customary in contingent-fee cases (factor 5)”; and “many plai ntiffs in th[e] case agreed to contingentfee arrangements that allowed for fees of at least 40 percent of any recovery (factor 6)”; and (8) “the amount at stake,” “the exce llent results obtained for plaintiffs,” the “difficulties faced by plaintiffs in succeeding on the[ir] claims,” and “a consideration of awards in similar cases” (factors 8, 10, and 12) all justified a substantial aggregate fee award. Id. at 5114–18. The court also noted that , “unlike some other class actions, this case did not involve a government investigati on or prosecution of th e defendant, and thus plaintiffs’ counsel were forc ed to undertake all of the necessary investigation and discovery”—which further supported a substantial fee award. Id. at 5115. As well, the court reasoned that “a cross- check of the relevant lodestar amount” confirmed “the reasonablene ss of a one-third award.” Id. at 5120. The court “consider[ed] all fee applications submitted by plaintiffs’ attorneys” in constructing the applicable lodestar, “[b]ecause th[e] award [was] intended to account for all contingent fee recoveries from payments to cla ss members from the settlement fund.” Id. Further, the court found reasonable the counsels’ aver age hourly rate, which was under $500, and “the number of hours expended,” “consid ering the scope and complexity of th[e] litigation.” Id. This information yielded a “total lodestar amount [of] approximately $357 million”; application of a 1.4 multiplie r to the lodestar, then, generated the aggregate fee award of roughly $503 million. Id . “That multiplier,” noted the court, “[was] extremely modest in light of the great risk undertaken in pu rsuing the[] claims on Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1314 a contingent-fee basis.” Id. Thus, based on the Johnson factors and the lodestar crosscheck, the court found a total f ee award in the amount of one-t hird of the gross settlement fund to be justifie d in this case. In the Judgment issued that same day, the court noted that it “retain[ed] . . . continuing and exclusive jurisdiction to interp ret, implement, administer, and enforce the Settlement Agreement, to distribute, alloca te, and decide any di sputes among counsel related to attorneys’ fees, costs and expenses , and to implement and complete the claims administration and dist ribution process.” Id. at 5133 (Kan. D. Ct. Final Order and Judgment, filed Dec. 7, 2018).
2. The Kansas Special Master’s Nove mber 2018 Fee Allocation R&R On November 21, 2018 , the Kansas Special Master filed her R&R on allocation of the aggregate attorneys’ fee award. After briefly covering the ground the Kansas Special Master traversed in her R&R, we outline—in some detail—her discussions surrounding the Kansas district court’s authority to impl ement a hybrid allocation scheme and modify (or abrogate) private agreements involving the attorneys. We also review her proposed allocations.

a. General Overview To frame the issues for the Kansas distri ct court, the Kansas Special Master noted she needed to address the fo llowing “key issues” before proposing an allocation of the aggregate attorneys’ fee award:
1. In this “hybrid” class action settle ment context, what attorney time can fairly be considered wo rk for the “common benefit”; Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1415 2. The enforceability of private continge nt fee agreements entered into by certain Class Members prior to settlement, and the extent to which [the district court] . . . can inva lidate or modify those agreements;
3. What weight should be given to the Fee-Sharing Agreement . . . entered into by certain counsel i mmediately after execution of the Settlement Agreement on February 23, 2018; 6
4. The applicability of the Joint Pros ecution Agreements (the “JPAs”) entered into by certain counsel in 2015; and
5. Application of allocation principles to the various fee applications and data submitted. Id. , Vol. 21, at 4745–46 (footnote added). Before explaining her answers to these i ssues in-depth, the Ka nsas Special Master summarized her findings and recommended , among other things, the following:
1. The Courts should alloca te the Attorneys’ Fee Awa rd so as to provide compensation both to t hose lawyers whose efforts produced common benefits to the entire Class and to [IRPAs] representing individual Class Members pursuant to con tingent fee agreements. The Attorneys’ Fee Award, plus expens es as approved by the Courts, should be the entire amount paid to any lawyers in connection with this litigation and settlement, notw ithstanding any agreements ( e.g. , JPAs or contingent fee agreements) to the contrary.
A. Specified percentages of the Atto rneys’ Fee Award . . . should be allocated to each of the thre e jurisdictions to which certain groups of counsel have been a ssigned. These amounts should be allocated . . . among those c ounsel for efforts that produced common benefits to the Class.
B. A set percentage of the Attorney s’ Fee Award should be placed into a pool for allocation among IRPAs based on their clients’ proportionate share of settlement payments, as finally determined by the Settlement Process. . . .

6 On February 23, 2018, “r epresentatives of three different plaintiffs’ groups” signed a Fee-Sharing Agreement proposing a di vision of the court-awarded attorneys’ fees. Joint App., Vol. 21, 4798–99. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1516 C. IRPA compensation in respect of individual clients should be limited to a share of the IRPA pool. The IRPA pool will be allocated among IRPAs based upon their clients’ proportionate share of settlement awards to Class Members represented by IRPAs. Contingent fee agreements providing for higher percentages should not be enforceable beyond the amount of the IRPA pool share. . . .
D. Some law firms will be entitled to both common benefit fees and IRPA compensation.
2. . . . . The Special Master recomme nds that the Court set aside the entire . . . $48,842,866.12 requested for reimbursement of expenses, with final determinations and alloca tions to be made after the Special Master has reviewed supporting ma terials and made more specific recommendations. Id. at 4746–47. The Kansas Special Master also recommended that $2,782,500 in service awards be granted to firms that requested them.
b. Authority to Award Fees an d Modify Prior Agreements In explaining these conclusions in great er detail, the Kansas Special Master addressed the district court’s authority to (1 ) bifurcate the aggregat e attorneys’ fee award into common benefit pools and an IRPA fund and (2) modify, abrogate, or disregard private agreements, be they contingent-fee co ntracts between attorneys and their clients or agreements between attorneys.
i. The Authority to Devise a Four -Pool, Hybrid Allocation Scheme The Kansas Special Master reasoned th at bifurcating the aggregate fee award along IRPA and common benefit lines was nece ssary “because the cl aims resolved under [the nationwide class action se ttlement] include both class ac tions and individual actions Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1617 filed in multiple federal and state courts by individual plaintiffs who retained their own counsel.” Id. at 4780. Given this “hybrid character,” the Kans as Special Master explained that the Kansas district court’s “authority to awar d fees and expenses derives from several
sources.” Id. For starters, the court could award atto rneys’ fees pursuant to Rule 23(h) of the Federal Rules of Civil Procedure, which provides that, “[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Id. at 4780–81 (alteration in original) (quoting
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. P. 23(h)). On a more general level, the Kansas Special Master noted that, “the authority of courts to award reasonable attorneys’ fees and expenses pursuant to the common fund doctrine and the related common benefit doctr ine has long been recognized.” Id. at 4781. And third, the Kansas Special Master observed that the Settlement’s express text likew ise accorded with these stated principles, providing that “Settlement Class Counsel and other counse l representing Class Members who performed work for the benefit of Class Members shall ma ke Fee and Expense App lications . . . .” Id. at 4781–82 (omission in original).
ii. Authority to Modify, Abrogate , or Disregard Private Agreements Turning to the seco nd issue—whether the Kansas di strict court could “invalidate or modify” the “private contingent fee agreem ents entered into by certain Class Members prior to settlement”—the Kansas Special Master concluded that the district court’s “legal and equitable authority” empowered it to eith er abrogate or modify the contingent-fee agreements as well as hours and fee calculations. Id. at 4745, 4786–88. Pointing Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1718 primarily to decisions from our sister circuits, the Kansas Special Master explained that the exercise of the court’s legal and equitabl e power to abridge contingent-fee agreements was necessary to “meet the ob ligations imposed on [it] by Rule 23, supervise attorneys that appear before [it], protect the interests of class members, and preserve the integrity of the legal process.” Id. at 4788. In addition, the Kans as Special Master reasoned that “implementing a reasonable cap on attorneys’ fees ‘safegua rd[s] the public’s perception of the courts and legitimacy of the legal sy stem’s handling of ma ssive MDLs and class actions’ and ‘promotes justice for all parties by allowing claimants to benefit (as their attorneys have) from the eco nomies of scale and increased efficiency that an MDL provides.’” Id. at 4789 & nn.127–28 (alteration in original) (footnotes omitted) (first quoting In re NFL , No. 2:12-md-02323, 20 18 WL 1658808, at *2 (E.D. Pa. Apr. 5, 2018); and then quoting In re Vioxx Prods. Liab. Litig. , 650 F. Supp. 2d 549, 558 (E.D. La. 2009)). She continued: Moreover, in a class action, a court’ s inherent authority to assess the reasonableness of contingent fee agreem ents is underscored because of the court’s performance of its fiduciary duty to protect class members’ interests by approving class counsel, ensuring the terms of the settlement protect the interests of class members, a nd approving attorneys’ fees. Id. at 4789. Thus, the Kansas Special Master concluded that “in bo th class actions and non-class MDLs”—characterizations relevant to this case—“federal district courts have routinely capped attorneys’ fees, relying on their inherent authority over proceedings before them and their equitable authority.” Id. at 4790 & n.130 (collecting cases). Furthermore, the Kansas Sp ecial Master directed the parties and the court to the Settlement itself, which “recognize[d] that the enforceability of any attorneys’ fee Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1819 contract affecting a Class Member [was] subject to judicial review.” Id. at 4795. Indeed, as the Kansas Special Master noted, section 9.21.1 of the Se ttlement provided that “[t]he Court shall have exclusive jurisdiction to decide the enforceability of any lien.” Id. (quoting Joint App., Vol. 5, at 1105). That section, among others, “contemplate[s] judicial review of all attorneys’ fee contracts and liens.” Id. Settlement negotiations anticipated modification and review of fee co ntracts, noted the Kansas Special Master— as “[i]t was important to all parties to the nego tiations . . . that similarly situated plaintiffs . . . receive similar compensation under the Settlement Agreement, and that individually represented plaintiffs would not receive a lower net recovery du e to attorneys’ fee obligations.” Id. at 4795–96. The Kansas Special Master also considered what weight, if any, should be given to pre-existing fee-sharing agreements and joint prosecution agreements (“JPAs”). 7 At the outset, the Kansas Special Master noted that a February 23, 2018, fee-sharing agreement (the “Fee-Sharing Agreement”) signed on the heels of the Settlement was “not binding,” as “[t]he decision regarding the total amount of fees to be awarded and how [those fees]

7 Not infrequently thro ughout this opinion, we refer to “JPAs” using the plural form. We do so to refer to one set of docume nts—with materially identical terms—that numerous lawyers or law firms representing plain tiffs entered into in th is action. In other words, our use of the plural form does no t signify that there are multiple sets of documents with materially different te rms that constitute operative prosecution agreements in this case. The set of documen ts at issue consists of the June 2015 Joint Prosecution Agreement, as well as amendments and addenda thereto. Where a specific joint prosecution agreement is at issue, we refer to that specif ic agreement by name (e.g., the “June 2015 Joint Prosecu tion Agreement” or “First Addendum”). Moreover, when referring to the foundational June 2015 Joint Prosecution Ag reement—which was subsequently built upon th rough amendments or adde nda—we frequently employ a shorthand, referring to it simply in the singular form as “JPA.” Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 1920 should be allocated am ong the many plaintiffs’ lawyers . . . is within the sole discretion of the Courts.” Id. at 4799. Nevertheless, she reco mmended the Kansas district court “give significant weight to th is Fee-Sharing Agreement” be cause its signatories “w[ere] critical to the achievement of a settlement in this litigation.” Id. at 4799–4800. In other words, “without these individuals’ w illingness to overcome their personal and professional differences and work cooperativel y for the benefit of . . . plaintiffs whom they all represented, this unique settle ment could not have been achieved.” Id. at 4801. Because of this, the Kansas Special Master found it “appropriate to give the Fee-Sharing Agreement substantial weight in making decisions about allocations of fees.” Id. With that background, the Fee-Sh aring Agreement recommended 50% of the allocation should go to the Kansas pool, 12.5% of the alloca tion should go to Minnesota Class Counsel, 17.5% should go to certain Illinois firms pressing mass action suits, and the remaining 20% should be left open for future allocation. Several firms—but primarily Watts Gu erra—maintained that the JPAs they entered with class counsel should govern th e Settlement’s allocation. Under one such agreement executed in June 20 15 (the “June 2015 Joint Pros ecution Agreement”), certain IRPA attorneys agreed to c ooperate with class counsel and surrender a portion of their fees to compensate class counsel, via a “C ommon Benefit Assessment[],” for mutually beneficial efforts. Id. , Vol. 13, at 3138–39 (Amended and Restated Joint Prosecution Agreement, filed July 16, 2018). The agreement defined a “Common Benefit Assessment” as a “common benefit fee and ex pense assessment ordered by a state or federal MDL court in connection with a state or federal MDL.” Id. at 3136. As well, it Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2021 stated that “the Parties agree that if and as such clients are en titled to any payment from Syngenta in connection with settlement of or judgment on such clie nts’ Syngenta Claims, such clients will be subject to 100% of th e then-applicable Benc hmark Common Benefit
Assessment.” Id. at 3138. The agreement additiona lly defined the “Benchmark Common Benefit Assessment” as the “benchmark common benefit fee and expense assessment ordered by the Federal MDL Court in connection with the Federal MDL.” Id. at 3136. Regarding the JPAs, the Kansas Spec ial Master rejected Watts Guerra’s contention that “the JPAs executed by groups of plainti ffs’ counsel should govern decisions as to the allocation of fees in th[e] class action context.” 8 Id. , Vol. 21, at 4802. To start, the Kansas Special Master obser ved that the Settlement expr essly abrogated the JPAs. Specifically, section 9.24.1 in the Settleme nt “contains express language that it ‘supersedes all prior proposals, negotiations , agreements, and understandings relating to the subject matter of this Agreement,’” which includes issues concerning attorneys’ fees. Id. (quoting Joint App., Vol. 5, at 1106). Moreover, the “JPA s [were] irrelevant to the award and allocation of fees in this natio nwide class action settlement” because “they ha[d] . . . been ‘overtaken by events,’ namely a nationwide class action settlement that they did not contemplate.” Id. at 4802–03. As well, “the c ontext in which Watts Guerra . . . negotiated the JPA [was] further eviden ce of its inapplicability” to a class action settlement situation. Id. at 4806. That is, the Kansas Special Master explained that the JPA’s premise reflected “an effo rt by Watts Guerra . . . to secure a process that would

8 Watts Guerra was one of the appe llants in these proceedings up until it reached a settlement and was terminated as a party on January 7, 2021. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2122 automatically exclude its clie nts from any class and corre spondingly limit their commonbenefit assessment on any individual recovery they secured.” Id. “It is inconsistent with this premise,” though, “that the same JPA wa s meant to address th e opposite scenario, wherein [Watts Guerra’s] clients [would] elect to participate in a fe deral settlement class and in which they [wou ld] seek fees out of the common fund.” Id. Moreover, a July 2015 Common Benefit Orde r entered by the Kansas district court shortly after the June 2015 Joint Prosecution Agreement’s execution made clear that the Joint Prosecution Agreement’s language co ncerning individual assessments did not apply: In the event that there is a class settlement, recovery or judgment in favor of the class, no assessment pursuant to th is Section will be made, either for attorneys’ fees or for expenses, i ndividually from any class member or his/her/its individual attorney as to the portion of any class recovery distributed to that individual class me mber if the class member remains in the class (i.e., does not opt-out of the cl ass). Instead, all fees and expenses for that class member will come out of the overall class recovery funds provided by defendants, as approved by the Court, or as otherwise Ordered by the Court. The relationship between class counsel fees and costs obtained through any class settlement or judgme nt and the Common Benefit Fund will be addressed, if necessary, by later order of the court. Id. at 4804 (quoting Joint App., Vol. 2, at 52 0 (Kan. D. Ct. Order Establishing Protocols for Common Benefit Work and Expenses a nd Establishing the Common Benefit Fee and Expense Funds, filed Mar. 6, 2015)). The attorneys eventu ally amended the June 2015 Jo int Prosecution Agreement in January 2016. But that Firs t Addendum did not change mu ch. Unlike the June 2015 Joint Prosecution Agreement, the First Addendum contemplated fee-sharing in the limited context of a Minnesota class. Under its terms, Minnesota counsel agreed to pay Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2223 “33 1/3 % of the attorneys’ fees awarded in all [Minnesota] MDL Class Actions” to the co-lead counsel. Id. , Vol. 13, at 3164 (First Adde ndum to Am. and Restated Joint Prosecution Agreement, filed Ju ly 16, 2018). Even in th at circumstance, the First Addendum did not grant “Minne sota MDL Class Actions” a national reach, defining it instead to mean “any action pursue d in the Minnesota MDL Court.” Id. , Vol. 21, at 4805 (quoting Joint App., Vol. 13, at 3162). And if a court declined to certify th e Minnesota class, the First Addendum expressly stated that only [t]o the extent that class certificati on of a [Minnesota MDL Class Action] is denied and/or Additional Minnesota Co unsel have been, are engaged to or otherwise decide to pursue cases for Producers or Non-Producers in one or more individual actions, Additional Mi nnesota Counsel hereby join in the [JPA] and are subject to all of the same rights and obligations of the Remele/Sieben Group includin g, but not limited to, the assessments on individual cases set forth therein

. Id. , Vol. 13, at 3166 (emphasis added). In other words, the Firs t Addendum (especially when read as a whole) contemplated a lim ited fee-sharing agreement between myriad Minnesota firms that would apply in “the limited context of a Minnesota class” and, barring that, set forth an assessment plan to be leveraged against individual recoveries if a party prosecuted an individual action against Syngenta. Id. , Vol. 21, at 4805. In sum, satisfied that the Kansas dist rict court had ample authority to award attorneys’ fees it found reasonable out of the aggregate fee award—irrespective of preexisting contingent-fee contracts, fee-shari ng agreements, or JPAs—the Kansas Special Master recommended a four-pool allocation scheme for distributing the roughly $503 million in total attorneys’ fees. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2324 c. The Four-Pool Allocation Scheme The four-pool allocation scheme was pr edicated on the establishment of four sources of funds—one pool of funds for IR PAs and three common benefit pools to be assigned to the Kansas district court, the Mi nnesota state court, and the Illinois district court. That scheme was largely devised by the Kansas Special Master in consultation with the law firms spearheadin g the Syngenta litigation. To begin, the Kansas Special Master assigned all law firms to a particular regional pool. “[W]here a particular law firm should be placed” turned on “such factors as where the firm had filed lawsuits and appeared in court; where that firm had filed its fee petition; which leadership group, if any, ‘claimed’ that firm; whether the firm wa s identified as part of a group in the FeeSharing Agreement; and the [Kansas] Special Master’s understanding of the alliances among the hundreds of law firms in this sprawling litigation.” Id. at 4814–15. After assigning each firm to one of the regional common benef it pools, the Kansas Special Master recommended particular pe rcentage allocations from the aggregate attorneys’ fee award to each pool. This re commendation “considered the contributions of the attorneys in each jurisdiction to the ov erall litigation and the settlement,” “tak[ing] into account the history of the litigation, th e available data regarding attorney hours incurred, and the experience of [the Kansas Special Master] and [the Illinois Special Master] in connection with se ttlement negotiations and implementation” as well as “the terms of the Fee-Sharing Agreement.” Id. at 4815–16 (foot note omitted). The Kansas Special Master identified “[s]everal points concerning this unique litigation and settlement” that influenced her “allocation considerations,” including the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2425 considerable experience of lead plaintiffs’ counsel; the novel claims counsel raised and the difficult issues of damages; Syngenta’s a ggressive, first-tier defense; the absence of government involvement and its role in increa sing lead plaintiffs’ risk; lead plaintiffs’ counsel’s coordinated, efficient litigation efforts; the “enormous amount of work” demanded by this case and the “hard -fought settlement negotiations”; the “unprecedented” court decisi ons obtained; and the “extraordinary” results of the litigation. Id. at 4783–85.

i. The IRPA Pool The Kansas Special Master recommende d 10% of the aggregate attorneys’ fee award be allocated to the IR PA pool. The Kansas Specia l Master thought the amount was “appropriate given the limited work done by IRPAs and the fact that common benefit awards would also be available to any IR PAs who had significant participation in the litigation or settlement process fo r the benefit of the Class.” Id. at 4809. She recommended the IRPA pool fu nds “be allocated among IRPA s based on their clients’ proportionate share of settlement recoveries by all claimants represented by IRPAs.” Id.

ii. The Kansas Pool The Kansas Special Master recommende d that the Kansas common-benefit pool receive 50% of the aggregate fee award. Th e Kansas Special Master recommended such a sizable allocation to the Kansas pool be cause of the following considerations: The Kansas group not only took on a leadership role in the federal MDL, it conducted and coordinated massive fact and expert discovery against both Syngenta and third partie s spanning multiple countr ies and at substantial expense. It also obtained signific ant rulings on complex legal issues, including removal issues that cleared the path for state court litigation and Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2526 responses to Syngenta’s motions to di smiss and for summary judgment. The Kansas group pursued and obtained certification of both a nationwide class and eight statewide classe s, again surmounting complicated legal hurdles. Perhaps most significantly, it tried th e Kansas class litigation to a $217.7 million verdict. Id. at 4818. Furthermore, the Kansas Sp ecial Master observed that “participation of the Kansas MDL Leadership in a nationwide class sett lement was critical to its
success.” 9 Id.

iii. The Minnesota Pool Turning to Minnesota, the Kansas Special Master recommended that the Minnesota common benefit pool receive 24% of the aggregate fee award. In this regard, the Kansas Special Master recognized that, “[u]nquestionably, the Minnesota state court litigation both advanced the cause of pre ssuring Syngenta on multiple fronts, and, through coordination with Ka nsas counsel, assisted the nationwide class effort.” Id. at 4819. The combination of “a class action and a significant number of individual suits” in Minnesota “resulted in the specter of multip le bellwether trials for Syngenta, with corresponding discovery burdens and the deve lopment of new experts to compliment those developed in the Kansas MDL litigation.” Id. In effect, “Minnesota counsel forced Syngenta to divide its resources and fully work up” a bellwether case, ultimately resulting in Syngenta settling the claims brought during the uncomple ted Minnesota class trial. Id.

9 The Kansas Special Master specif ically commended the work of Mr. Christopher Seeger of Seeger Weiss LLP, wh o was the Settlement Class Counsel and the leader of the PNC. Indeed, the Kansas Special Master opined that “without [Mr. Seeger’s] involvement, a settlement [was] unlikely to ha ve been achieved—certainly not in the same timeframe or at the same am ount.” Joint App., Vol. 21, at 4818. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2627 Nonetheless, it was clear to the Kansas Special Master that Minnesota counsel’s contributions to the settlement were decidedly se cond to those of Kansas counsel, in part because the “Minnesota lawyers did not ha ve a unitary positi on in the settlement negotiations.” Id.

iv. The Illinois Pool Finally, the Kansas Special Master re commended that the Illinois common benefit pool receive 16% of the aggregate fee award. The Kansas Special Master acknowledged that the Illinois litigation “presented an impo rtant third pressure point on Syngenta to resolve the growing litigation against it.” Id. at 4820. However, “[f]rom a settlement perspective, Illinois counsel initially presented a significant barrier to resolution,” despite certain Illinois counsel later proving to be “critical to [the settlement’s] success.” Id. The Kansas Special Master specifically expl ained that one lawyer “in particular was fundamentally oppo sed to a class solution and pressed hard to proceed with individual litigation.” Id. But another Illinois lawyer who agre ed to participate and to convince the uncooperative lawyer and his group to participate in the se ttlement process, was crucial to the Settlement’s success after “Syngenta made cl ear that piecemeal resolution was not an option.” 10 Id.

10 Following the Kansas district cour t’s lead, the Illinois district court appointed the Honorable Daniel Stack, “a retired judge w ho had served as a special master for settlement purposes,” as a special master in the Illinois district court proceedings pursuant to Rule 53 of the Federal Rules of Ci vil Procedures “to make a recommendation concerning any allocation of a ttorney fees by that court.” Joint App., Vol. 32, at 7438 (Kan. D. Ct. Mem. and Or der, filed Nov. 19, 2019) (“November 2019 Illinois Pool Allocation Order”). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2728 3. The District Court’s December 31, 2018, Fee Allocation Order In a December 31, 2018, Fee Allocation Or der, the Kansas district court largely adopted the Kansas Special Ma ster’s November 2018 Fee A llocation R&R. In relevant part, the district court agreed it possessed the requisite authority to modify, abrogate, or otherwise disregard the private agreements ex ecuted between attorneys and their clients, and amongst each other. Moreover, it largel y adopted the hybrid, four-pool scheme, though it allocated more funds to the IRPA pool than the Kansas Special Master recommended.

a. The Kansas District Court Agrees It Has Authority to Set a Reasonable Fee Award Pursuant to Rule 53 of the Federal Rule s of Civil Procedure, the Kansas district court reviewed “de novo all objections to the [Kansas] [S]pecial [M]aster’s factual findings and legal conclusions.” Id. , Vol. 23, at 5352. Agreeing with the Kansas Special Master, the court read our precedent to aut horize “an award of fees from the settlement fund to both attorneys who performed comm on benefit work and attorneys who filed individual cases.” Id. at 5352–53. And, in any event, the court observed that “[n]o attorney . . . argued, either in applying for fees or in objecting to the [November 2018 Fee Allocation] R&R, that the Court ma y not adopt such an approach.” Id. at 5353. Nor did any attorney specifically object to the Kansas Special Master’s conclusion regarding the court’s authority to modify contingent-fee c ontracts, though Watts Guerra questioned in its briefing whet her the court could exercise such power. Nonetheless— and in view of its obligation to conduct a de novo review—the court concurred with the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2829 Kansas Special Master’s “thorough discussion ” of the court’s authority to “effectively modify individual cont ingent fee contracts relating to th[e] litigation [in order] to limit any contingent recovery by attorneys to th e fees awarded and allocated by the Court.” Id. And, on its own, the court concluded it “may exercise its inherent authority to supervise attorneys appearing before it, to act as a fiduciary for and protect the interests of the settlement class members, and to ensure that the integrity of the judicial process is not undermined by the recovery of unreasonable attorney fees.” Id. at 5354. In arriving at this conclusion, the di strict court “reject[ed] some objectors’ arguments that any award to IRPAs should be governed by [the JPAs] executed among some plaintiffs’ attorneys or Common Benefit Orders (CBO s) issued by the courts.” 11 Id.
at 5360. Watts Guerra and anothe r firm, Bassford Remele, P.A. (“Bassford”), were the

11 Based on our reading of the Kansas Special Master’s November 2018 Fee Allocation R&R, it appears that other courts involved in the expa nsive litigation against Syngenta entered common benefit orders. See Joint App., Vol. 21, at 4784, 4825. The Kansas district court seems to have had this understanding—in referring to CBOs (plural) entered by other courts. The Kansas distri ct court’s July 2015 Common Benefit Order, however, appears to be the only CBO in the Joint Appendix and is the only one that the parties address in their arguments on appeal. There appears to be a logic underlying this circumstance: specifically, it was in the July 2 015 Common Benefit Order that the district court signaled its view that the private ag reements between attorn eys in this litigation regarding fees or expenses—whether reflected solely in JPAs or me morialized in CBOs entered by other courts—conc erned individual assessments, not the recovery of fees or expenses after the resolution of a class acti on, by settlement or judgment. That is, the concern of such atto rney agreements was not a class recovery. The court implemented this vision in rejecting the objectors’ argum ents—following the class action settlement here—that contended the JPAs or CBOs should govern any award to the IRPAs. Further, it was this vision that ultimatel y led the court (as discussed infra ) to give “no weight to the percentages contained in the JPAs and CBOs” because they were “intended for and addressed different circumstances,” that is, circumstances involving individual assessments, not class recoveries. Id. , Vol. 23, at 5360. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 2930 only two firms to meaningfully argue that the JPAs should gover n the fee allocation scheme. In its objections, Byrd requested “the o pportunity to speak at the [attorney fee allocation] hearing on December 17, 2018,” but devoted most of its written argument to the proposed modification of th e contingent-fee agreements. Id. , Vol. 22, at 4951–57 (Byrd’s Obj. to November 2018 Fee Allocation R&R, filed Dec. 5, 2018). To the extent Byrd discussed the JPAs, it urged the district court to consider the JPAs’ policy virtues: Furthermore, individual lawyers will be hard pressed to come to an agreement to litigate together with the class lawyers while class certification is pending. In this case, the individua l lawyers and the class lawyers had an agreement (the Joint Prosecution Agre ement) in place to account for a commingled world should the Court certify a class, and that agreement was summarily discarded after the global se ttlement was reached. Lawyers like those in our group . . . will be extrem ely hesitant to ex pend the amount of effort and costs to create a similar coa lition to fight the ne xt biotech company when that company ignore s the interconnected ma rket and causes a trade disruption. Id. at 4957. Shields also objected to the November 2018 Fee Allo cation R&R. Insofar as Shields could be said to have objected to the Kansas Special Master’s recommendation regarding the JPAs, that objection is c ontained in the following paragraph: For sake of brevity, [Shields] joins in the legal argument and objections presented by our Minnesota Co-Lea d Counsel, [Bassford] and [Watts Guerra] and incorporates the same as set forth herein along with supporting exhibits. We offer our objection as an additional support th at the IRPA Fund has been undervalued by the Specia l Master and should be increased substantially. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3031 Id. at 5085 (Shields’s Obj. to November 2018 Fee Allocation R&R, filed Dec. 5, 2018) (emphasis added). Yet, Shie lds omitted any reference to th e JPAs and, instead, devoted the bulk of its four-page brief to the IRPA allocation and the contingent-fee issue. Agreeing with the analysis in the No vember 2018 Fee Allocation R&R “and the briefs of the MDL [L]eadership,” the district court concluded the JP As and CBOs “do not govern” because (1) “the Court is not bou nd by a private agreemen t among attorneys”; (2) “the JPAs address the issue of fees th at might be recovered in multiple separate litigations, and by their terms th ey do not apply to the pr esent situation involving a nationwide settlement class”; (3 ) “the [S]ettlement [A]greement . . . expressly supersedes all other agreements”; and (4) “CBOs addresse d the issue of assessments in the event of individual recoveries, and they do not apply to this recovery by a settlement class.” Id. , Vol. 23, at 5360 (emphasis added). Thus, because the Kansas district court was not bound by them, it gave “no weight to the pe rcentages contained in the JPAs and CBOs, which were intended for and addre ssed different circumstances.” Id. b. The Court Adopts the Four-Pool A pproach but Modifies the Allocation Terms for the IRPA Pool Having concluded it possessed significant authority to craft the allocation of attorneys’ fees in the most reasonable mann er, the Kansas district court adopted the Kansas Special Master’s two-stage, “general approach” to the allocation of the attorneys’ Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3132 fee award, “by which the award is first a llocated among the three common benefit pools and the IRPA pool.” 12 Id. at 5357. The court de tailed its reasons below: The Court agrees with the [Kansas Special] [M]aster that this is the most reasonable and appropriate way to alloca te the fee award, for the reasons set forth in the [November 2 018 Fee Allocation] R&R, particularly given the hybrid nature of this litigation, whic h involved both cla ss and individual claims. Creation of the IRPA pool allows the Court to recognize the contribution to the ultimate recovery made by the very exis tence of the huge number of individual claims, while at the same time limiting fees for those attorneys to a reasonable amount. Creation of the three common benefit pools allows for a reasonable allocati on of the remainder of the fee award based on the attorneys’ relative contri butions to the recovery, including the actual litigation of the claims against Syngenta and the negotiation and defense of the settlement. Although th ere was overlap among jurisdictions, particularly because of the great amo unt of coordination among plaintiffs’ counsel, the fact that the litigation to ok place primarily on the three discrete jurisdictional fronts allows the remainde r to be divided reasonably into the three pools based on a comparison of the relative contributions to the recovery by the attorneys placed in those pools. This framework further allows the court most familiar with the work on a particular front to allocate fees to particular attorneys and firm s within that cour t’s common benefit pool. Although the task of alloca tion is necessarily a difficult one, the framework recommended by the [Kansas] [S]pecial [M]aster most ably facilitates a reasonable allocation. Accordingly, the Court rejects Watts Gu erra’s argument in favor of a direct award to it of a fixed percentage of th e attorney fee award. Similarly, the Court rejects the argument by [Weller, Green, Toups & Terrell, LLP, and The Coffman Law Firm (“Toups/Coffm an”)] in favor of a single-stage approach undertaken after the claimant s’ recoveries are determined. No other attorney has objected to the re commended two-stage approach, and the Court is persuaded that the attorney fee award may be allocated reasonably and appropriately among the pools at this time. Id. at 5357–59.

12 Recall that the Kansas Special Master recommended the following twostage approach: at the first stage, funds are al located to the specific pools, and then at the second stage, the funds are disbursed to individual lawyers and law firms. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3233 Moreover, the Kansas district court “agr ee[d] . . . that it [was] appropriate to include an allocation to an IRPA pool from th e total award of fees,” because the number of individual suits incentiv ized Syngenta to settle. Id. at 5359. The c ourt thus “adopt[ed] the factual findings in the [N ovember 2018 Fee Allocation] R&R concerning the relative weight of the contributions by IRPAs an d by attorneys performing common benefit work.” Id. at 5360. Additionally, the Kansas district court re jected objections “argu[ing] that IRPAs did enough work to justify a larger IRPA po ol allocation than that recommended in the [November 2018 Fee Allocation] R&R.” Id. at 5361. The court “agree[d] with the [Kansas] [S]pecial [M]aster . . . that the relative contribution to the ultimate recovery, based on the mere existence of individual claims (the basis for any common fund allocation to the IRPA pool), is small when co mpared to the pools a llocated to attorneys who performed work that benefite d the entire settlement class.” Id. (emphasis added). Moreover, the court concurred that the “tim e and expense incurred by IRPAs in recruiting clients d[id] not contribute to the ultimate recovery.” Id. As the court put it, “[t]he key . . . [was] that the IRPAs were relieved of having to do any work to advance their clients’ lawsuits or to add value to their claims.” Id. at 5362. However, to the extent an IRPA attorney “did engage in such work that could be said to benefit the overall litigation and recovery,” the court’s allocation scheme enabled that attorney to also “seek . . . fees from the common benefit pools.” Id. Notwithstanding its rejection of the objector s’ efforts to procure a larger share of the aggregate fee award, the Kansas district court was sensitive to the time IRPA firms Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3334 devoted to their cases and their contingent-fee contracts. After all, it agreed with the IRPAs that “represented claima nts w[ould] [likely] recover mo re than 50 percent of the total recovery by all claimants.” Id. at 5366–67. With their labor and client agreements in mind, the Kansas district court found an “effective 10 percent contingent fee” reasonable. Id. at 5366. To achieve that “effec tive” 10% cap, the court augmented the recommended IRPA allocation fr om 10% to 12%. The cour t concluded that the entire IRPA pool would “be dist ributed to IRPAs on a pro rata basis tied to the recovery by IRPA clients.” Id. at 5367. Thus, the “effective con tingent fees for IRPAs [would] not [be] capped at any particular percentage, but rather [would be] limite d only by the size of the IRPA pool.” Id. By way of the common benefit and IRPA pools, the Kansas district court “intend[ed] that its fee awar d from the settlement fund cover all fees recovered by attorneys on contingent fee contracts relating to claims included in this settlement.” Id. That is, “any attorney representing a client on a contingent fee basis relating to claims covered in th[e] settlement [could] recover attorney fees only fro m the pools created by [the December 31, 2018, Fee Allocation] [O ]rder, allocated from the Court’s total onethird fee award.” Id. at 5367–68. Such attorneys, under the court’s scheme, “may not recover any additional fees from the client ’s recovery based on any contingent-fee
contract.” Id. at 5368. Alluding to its obligations to ensure that fee awards remain reasonable, the Kansas district court justified this restriction by refe rence to its inherent authority, as well as that vested in it by th e Federal Rules of Civil Procedure and the Settlement. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3435 Having resolved these issues, the cour t “adopt[ed] the follo wing procedure for distribution from the IRPA pool”: Once the amount of each claimant’s r ecovery from the settlement fund has been determined, the clai ms administrator, with ov ersight by the [Kansas] [S]pecial [M]aster, shall calculate the pro rata IRPA award to be made from the IRPA pool to each attorney who has applied for a fee award, and the amount of an attorney’s proposed IRPA fee award sh all be communicated to that attorney, who shall have the opportunity to object to the calculation by the administrator . After the administrator ha s attempted to resolve any objection, the [Kansas Special] [M ]aster shall file a report and recommendation concerning the proposed distribution of the IRPA pool to particular attorneys or law firms, in which [she] shall note any outstanding objections and her recommendations concerning those objections. Objections to that report and reco mmendation may be filed within 14 days, and the Court will then resolve any such renewed objections. Id. at 5371–72 (emphases added). c. The Court Largely Adopts the Common Benefit Pool Allocations Then, turning to the common benefit pools, the Kansas district court adopted the Kansas Special Master’s recommendation conc erning the assignment of attorneys, law firms, and attorney groups to the three pools; no firm ob jected to its own placement within one of those three pool s. However, the court clarified, in response to a question from Johnson Becker, PLLC (“Johns on Becker”), one of the appellants in this case, that “each applicant will eventually receive an award of fees based on its common benefit work anywhere , performed with respect to cases in any jurisdiction, regardless of the particular pool into which the applicant is placed.” Id. at 5373 (emphases added). The court also largely agreed with th e Kansas Special Master’s rationale for relative allocations among the common benef it pools, concluding that her allocations Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3536 were “reasonable for all of the reasons [she] st ated . . ., including a consideration of the applicable Johnson factors.” Id. at 5374. First, as to Illinois, the court particular ly “agree[d] that the cases [there] provided a valuable third front in the overall litigation against Syng enta, which created additional pressure on Syngenta to resolve the litigation, ” and that the “contributions of the Illinois firms were not trivial or insignificant.” Id. “At the same time, however, . . . those contributions were outstripped to a considerable degree by the contributions made by” counsel in the Kansas and Minnesota pools. Id. at 5374–75. Unlike their Kansas and Minnesota counterparts, “the Illinois attorney s did not try (or begin the trial of) any of their cases against Syngenta.” Id. at 5375. And the rulings that they did garner “for the most part . . . followed similar rulings after lit igation of the same issues in [the Kansas] and the Minnesota court[s], whic h allowed the Illinois attorneys to rely to a great extent on work that had already been pe rformed by other attorneys.” Id. As the Kansas district court explai ned, the Kansas MDL and the “massive consolidated action in Minnesota” drove th e “successful resolution” of the litigation against Syngenta, leaving the Illinois litig ation “third in the pecking order.” Id. Moreover, much of the work of certain Illinois firms—Cl ark, Love & Hutson, PLLC; Meyer & Flowers, LLC; and Phipps An derson Deacon, LLP (collectively, “Clark/Phipps”)—“ultimately pr oved unsuccessful, which . . . bolstered Syngenta’s position and thus did not contribute to achievement of the settlement.” Id. “These factors support[ed] an allocation to the Illinois pool . . . much lower than the allocations to the other two pools,” and, therefore, the Kansas Special Master “str[uck] a reasonable Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3637 balance in her allocation to the Illinois pool re lative to the allocations to the other pools.” Id. Second, as to the two other fora, the Kans as district court found that the Minnesota attorneys significantly contri buted to the ultimate settleme nt class but that their contribution “did not approach that made by the attorneys in the Kansas pool, especially in litigating the MDL.” 13 Id. at 5376. While “two trials were started” in Minnesota, “only in the Kansas MDL di d plaintiffs obtain a verdict against Syngenta.” Id. Indeed, “[t]he [Kansas] MDL drove the entire litigati on against Syngenta”—by achieving the first major rulings on dispositive motions, leadin g investigations and discovery, retaining expert witnesses, and obtaining eight stat ewide class certifications—“and for the most part the MDL proceeded on an earlier track than the Minnesota consolidated litigation.” Id. Further, “Syngenta’s greatest exposure ca me from the [Kansas] MDL, in which it had already suffered one adverse class action verd ict, trials for the other seven certified classes had been scheduled (in which Syng enta would again face the possibility of punitive damage awards), and certif ication of at least 12 other statewide classes loomed.” Id. Considering these facts, the Kansas distri ct court concluded the relative allocations to the Minnesota and Kansas pools were reasonable.

13 As the Kansas district court noted, Minnesota leadership did not object to the Kansas Special Master’s allocations to th e three common benefit pools. The district court overruled the sole objection to th e Minnesota pool—made by Watts Guerra—and found that the Kansas Special Master’s allo cation was “reasonable.” Joint App., Vol. 23, at 5376. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3738 However, given the 2% increase in the a llotment to the IRPA pool, the district court reached a slightly different division of the total fee award amongst the common benefit pools. After determining that 12% of the total fee award sh ould be allocated to the IRPA pool, the Kansas district court allocated 49% to the Kansas common benefit pool, 23.5% to the Minnesota common benef it pool, and 15.5% to the Illinois common benefit pool. Concluding the December 31, 2018, Fee Allocation Order, the Kansas district court adopted the Kansas Special Maste r’s recommendation to award a total of $48,842,866.12 in expenses in addition to, and separate from, the one-third award of attorneys’ fees. 14 The court also approved service awards in the amoun t of $2,782,500.
4. Distribution of the Attorneys’ Fee Award Following issuance of the December 31, 2018, Fee Allocation Order, the Kansas district court consulted with the judges over seeing the litigation in Minnesota and Illinois, and all three judges “expressly” approved of the allocation framework—and initial allocation of fees—described in the order. Id. , Vol. 25, at 5860–61 (Kan. D. Ct. Mem. and Order, filed Mar. 20, 2019) (“March 20 19 Kansas Pool Allocation Order”). The judges likewise agreed that the funds in the th ree common benefit pools would be allocated to the attorneys in each pool based on work pe rformed that benefitted the settlement class, irrespective of whether they performed such work pursuant to a courtissued common benefit order. All three judge s filed orders allocating and distributing the

14 No attorney object ed to the Kansas Special Master’s various recommendations concerning expenses. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3839 attorneys’ fees among the law firms within the common benefit pools. What follows is a largely chronological descrip tion of those orders and any pertinent objections raised by the parties, as brought to the corresponding courts.

a. The March 2019 Kansas Pool Allocation Order The Kansas pool fund consis ted of $246,633,333.33. In a separate order also issued on December 31, 2018, the Kansas distri ct court granted the request of the Kansas CLC that they be designated to divide the Kansas pool’s allocation. 15 The court then ordered the Kansas CLC to file an R&R concerning their proposed division of the allocation, which the Kansas CL C filed on February 1, 2019. Over the objections of two firms—Toups/Coffman and Ho ssley-Embry, LLP (“Hossley-E mbry”), both appellants in this case—the Kansas district court a dopted the R&R in full on March 20, 2019. The CLC’s R&R divided the firms into six tiers: (1) Tier One consisted of the f our Kansas CLC members and the Settlement Class Counsel, to be awarded $214,895,659.86; (2) Tier Two consisted of six firms involved since the beginning of the litigation, “whose work focused on litigation of the class and bellwether cases” and who “partici pated in legal briefing, expert discovery, and the Kansas trial, alth ough to a lesser extent than the Tier 1 firms[,]” to be awarded $21,026,771.70; (3) Tier Three “consist[ed] of five fi rms that performed substantive legal work on class and bellwether plaintiff claims,” to be awarded $5,939,040.00;

15 As the Kansas district court later e xplained, it asked the Kansas CLC for an allocation proposal “because those attorney s took the lead and performed the great majority of the substantiv e work on behalf of plai ntiffs in this litigation.” Joint App., Vol. 25, at 5865. Accordingly, the Kansas CLC was “in the best position to judge the relative contributions by the petitioning attorney s to the settlement and the benefit of the settlement class.” Id. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 3940 (4) Tier Four consisted of thirty -two firms who either represented individual bellwether plaintiffs, file d class-action lawsuits to protect against the running of the statute of limitations, or represented “nonproducer class representatives or bellw ether plaintiffs,” to be awarded $2,546,876.50; (5) Tier Five “consist[ed] of nine firms that filed individual cases for plaintiffs who were not part of the MDL bellwether discovery pool”— with the “common benefit work” pe rformed by these firms limited to “drafting complaints” and preparing “plaintiff fact sheet[s] [“PFSs”]” that were “actually filed or su bmitted to Syngenta”—to be awarded $1,821,136.50; and (6) Tier Six consisted of three firms th at served as set tlement counsel for certain subclasses, to be awarded $403,848.75. Id. at 5862–65. The Kansas CLC also recomme nded that two firms in Ti er Two and three firms in Tier Four should be allowed to seek f ees from the Minnesota common benefit pool. We note that the court “appreciate[d] that an inherent conflict exist[ed]” in tasking the Kansas CLC with generating a specific allo cation proposal for each firm, “in that any undercompensation of non-lead counsel would increase [the] [Kansas] CLC’s own share of the fee pool.” Id. at 5865–66. Considering this risk , the court “emphasize[d] that it . . . exercised its independent judgment” in adop ting the Kansas CLC’s proposal “to ensure a fair allocation of common benefit fees from th[e] pool.” Id. at 5866. In that vein, the court concluded that the recommended allocation was “fair, reasonable, and appropriate,” id. at 5865, and it commended the Kansas CLC for “an excellent job in making its recommendations,” id. at 5866. Noting that “[n]o firm . . . objected to the tier or tiers in to which it was placed,” the c ourt agreed with the Kansas Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4041 CLC’s treatment of each specific tier. Id. It gave particular attention to the Tier Five recommendations: [T]he Court agrees with [the Kansas ] CLC’s recommendations concerning the allocation to firm s in Tier 5. These firms di d not perform any particular substantive work to advanc e the litigation on behalf of plaintiffs other than filing and maintaining indivi dual lawsuits against S yngenta. The mere fact that such individual suits had been f iled (with the threat of opt-outs) did contribute to the overall benefit of th e settlement class, and that contribution justified an award of fees to IRPAs. Thus, an attorney’s contribution in having an individual client and fili ng an individual lawsuit will be compensated by an awar d from the IRPA pool

. As the Court stated in its [December 31, 2018,] [Fee] [A]lloca tion [O]rder, work completing a significant number of PFSs that were actually served on Syngenta and work drafting complaints for multiple plainti ffs could benefit the entire settlement class and thus could re asonably be compensated from the common benefit pools. For that reason, the Cour t agrees with [the Kansas] CLC’s recommendation that Tier 5 attorneys who did not perform particular legal work that benefitted the entire settlem ent class should receive an allocation from the Kansas common benefit pool on ly for such work preparing served PFSs and drafting complaints. Although the Court noted that such work would not be weighed as equal to othe r common benefit work, [the Kansas] CLC has been fairly gene rous i[n] recommending that Tier 5 attorneys receive their entire requested lodestar amounts for work drafting complaints, and the Court agrees that such allocati ons are appropriate. The Court also noted that PFS work could reasonabl y have been performed at a lower attorney rate or even at a paralegal or staff rate, and it agrees with [the Kansas] CLC that a flat rate of $600 per PFS is appropriate for this work that was mostly clerical in nature. Id. at 5868 (emphasis added) (citations omitted).
i. Toups/Coffman’s Objections The Kansas CLC recommended that Toups/Coffman “receive a total of $236,571.88 in fees (using a 1.25 multiplier) for Tier 4 wo rk” and “receive $909,050.00 under Tier 5, consisti ng of $387,050 for drafting individu al complaints a nd $522,000 for preparing 870 PFSs that we re served on Syngenta”—all for “a total award . . . of Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4142 $1,145,621.88 (which d[id] not include amou nts that [Toups/Coffman] w[ould] receive from the IRPA pool).” Id. at 5869. Toups/Coffman only obje cted to the Kansas CLC’s Tier Five allocation recommendation. 16 Its objections, however, merely “r evive[d] . . . old arguments” that the Kansas district court previously rejected. Id. Those arguments included (1) that the court should not prohibit Toups/Coffman’s co llection of fees under its contingent-fee contracts with clients or through its lodestar ; (2) that the court should not use the fourpool framework but should instead base fee awards solely on th e number of bushels produced by claimant clients; and (3) that a one-third fee award is too high for a megafund settlement. The court explained that, in renewing th ose arguments, Toups/Coffman neglected “to explain how the Court erre d in previously rejecting th em or even to address the Court’s reasoning on those points.” Id. Thus, the Kansas district court “summarily denied” these recycled objections, resting on its previously stated rationale in the Aggregate Fee Order and December 31, 2018, Fee Allocation Order, “including its conclusions that attorney fees should be allo cated first and foremost by reference to the work that most contributed to the outcome and that a fee award at the top of the range of awards in similar cases is appropriate in this case.” Id. at 5869–70.

16 The court noted that the firms declin ed to object to the Kansas CLC’s Tier Four recommendations, as they “[were] not wort h quibbling over at this juncture.” Joint App., Vol. 25, at 5869. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4243 The court also rejected Toups/Coffman’ s contention that “it should receive its entire lodestar of $25.17 million . . . incurred representing its individual clients (which is exclusive of the common benef it work for which it received compensation in Tier 4).” Id. at 5870. Toups/Coffman argued that the Kansas CLC’s allocation effectively precluded it from recovering on the “thousands of hours” it spent communicating with clients, obtaining forms and documents, mon itoring the litigation, and submitting claims. Id. But, at bottom, Toups/Coffman did not e xplain to the court’s satisfaction how this work contributed to the settlement “and thus i nured to the benefit of the entire settlement class.” Id. In any case, the court observe d that the allocation compensated Toups/Coffman for drafting complaints and pr eparing PFSs. So, the court declined to award Toups/Coffman its entire lodestar. However, it nevertheless pointed out that Toups/Coffman would receive some compensati on for this work from the IRPA pool, in addition to the “properly lim ited” compensation from the Kansas common benefit pool for “work preparing a significant number of served PFSs and a significant number of complaints.” Id. at 5870–71.
ii. Hossley-Embry’s Objections Turning next to Hossley-Embry’s objections , the Kansas district court noted that the Kansas CLC’s R&R recommended the firm “receive a total of $95,250 in fees (using a 1.25 multiplier) for Tier 4 work” plus “$578, 450 under Tier 5, consisting of $189,050 for drafting individual complaints a nd $389,400 for preparing 649 PFSs.” Id. at 5871– 72. Thus, under the Kansas CLC’s distribu tion scheme, Hossley-Embry would receive a total of $673,700 from the Ka nsas common benefit pool. This amount did not bear on Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4344 any fee award Hossley-Embry coul d receive from the IRPA pool. Hossley-Embry “object[ed] to the recommended rate of $6 00 for each PFS prepar ed and submitted to Syngenta,” which was “based . . . on a maxi mum of two attorney hours (at a $300 hourly rate) per PFS.” Id. at 5872. Hossley-Embry argued “that two hours per PFS [was] too low, and that it should instead be compensate d its lodestar amount for the approximately seven hours it spent on each PFS.” Id. The Kansas district court rejected this argument for three reasons. First, in the court’s view, Hossley-Embry’s lodestar esti mates were suspect because a declaration from its associated counsel wa s internally inconsistent. Second, “much of the work described by Hossley[-][Embry] consist[ed] of communicating with the client and obtaining and organizing docu ments”—work “more appropriately compensated by an award from the IRPA pool.” Id. at 5873. As to “PFS pr eparation time,” such time, according to the court, was “reas onably compensated at a lower attorney rate or even at a paralegal or staff rate, which means that a $6 00 award might translate to three or four or five hours per PFS.” Id. “Again,” reiterated the cour t, “the preparation of PFSs contributed to the favorable outcome to a relatively small extent , and a rate of $600 per PFS—a rate that reasonably approximates the lodestar for that task—is reasonable and appropriate for the allocation of fees to Tier 5 firms.” Id. (emphasis added). Hossley-Embry also objected to its Ti er Four allocation, arguing that it should have received a higher lodestar rate than what its own records supported and a multiplier as high as certain Tier Two firms. The Kans as district court was unpersuaded. With respect to Hossley-Embry’s firs t argument, the court reiterated that “the work performed Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4445 by the Tier 2 firms contributed more to the common benefit of the settlement class than the Tier 4 work performed by Hossley[-][Embry].” Id. at 5874. The court found Hossley-Embry’s next objection similarly una vailing. Hossley-Embry sought a higher lodestar figure based on an ho urly rate higher than the one it provided—$345 for its Tier Four work—because a different fi rm received an award based on a rate of $810 per hour. But, because Hossley-Emb ry received the rate that it, it self, used in compensating its own Tier Four work, the firm could not “be heard to argue that its attorneys’ time was actually more valuable than pr eviously stated.” Id.
b. The Kansas District Court’s April 2019 Clarification Order On April 2, 2019, the Kansas district c ourt entered an order clarifying that it would issue all final fee award orders, including thos e described in the allocation orders to be issued by the Minnesota state cour t and the Illinois district court. 17 This order addressed certain plaintiffs’ counsel, who sought clarification as to “how any appeals from the three courts’ fee award allocations w[ould] be taken” and requested the Kansas district court mandate “that the allocation or ders by the Minnesota and Illinois courts be filed [in the Kansas dist rict court] for inclusion in a final judgment by [that court], from which judgment all appeals could be taken.” Id. , Vol. 26, at 5922 (Kan. D. Ct. Mem. and Order, filed Apr. 2, 2019) (“April 2019 Clarification Order”).

17 The court issued the order soon afte r it issued the March 2019 Kansas Pool Allocation Order, while the allocations of th e other common benefit pools were ongoing. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4546 Noting that such an approach “seem[ ed] to run counter to the previous understanding of the three cour ts and counsel,” the court nonetheless “agree[d] with [m]ovants that the settlement ag reement require[d] that final allocation awards be issued by [the Kansas district court].” Id. at 5923. After all, the Settlement provided that “any Fee and Expense Award . . . shall be issued by [the Kansas district court] (in consultation with and approved by the other two courts), and that [the Kansas district court] retain[ed] exclusive jurisdiction over a Fee and Expense Award.” Id. The Settlement also gave the Kansas district court “exclusive jurisdic tion over the settlement fund, and thus any disbursements from that fund for attorney fe es must be authorized ultimately by [the Kansas district court].” 18 Id. at 5924. Accordingly, the court granted counsels’ motion and ordered that, “[a]t the c onclusion of the allocation pr ocedures in Minnesota and Illinois,” those courts’ “allocation rulings . . . [be] filed in” the Kansas district court, which would “subsequently issue final alloca tion orders and authorize that funds be disbursed to attorneys.” Id. The Kansas district court also clarifie d two additional matters . First, the court rejected the petitioners’ suggestion that it coul d issue a final allocation order for the three common benefit pools before deciding the IR PA pool’s final allocat ion. Agreeing with Toups/Coffman, the court reas oned that, “despite the IRPA formula having been set,” no firm knew “how much it w[ould] receive from that pool,” a consideration that could

18 Relatedly, the Kansas district c ourt explained that its Final Order and Judgment of December 7, 2018, relevant to the Aggregate Fee Order, also established that it had “exclusive jurisdiction over th e settlement fund and the allocation and distribution of attorney fees.” Joint App., Vol. 26, at 5924. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4647 factor in “that firm’s argument on appeal.” Id. at 5925. At the same time, the court opined that “the issue of when orders are fi nal for purposes of appeal and the issue of when appeals are best consider ed by the appellate court are fo r the parties to consider and litigate to the Tenth Circuit.” Id. The Kansas district c ourt explained that it would continue to issue final allocation orders fo r each common benefit pool one by one, “as completed,” given that “[t]here is no require ment that [its] final allocation rulings be contained in a single order.” Id. It would “then be up to in terested parties to prosecute appeals when and how they [saw] fit.” Id. Second, because it would issue the final a llocation orders, the Kansas district court would “not . . . merely . . . sign off on th e allocations [issued] by the Minnesota and Illinois courts without any c onsideration whatsoever.” Id. at 5926. To that end, the court explained that it would “not foreclose entirely the opportun ity for attorneys to litigate whether [it] should adopt the other courts’ allocati ons without alteration.” Id. That said, the court made plain that it would “defer to the reasoning of the other courts in making their allocations of the Minnesota and Illin ois pools,” as those courts were “best position[ed] to understand the relative contribu tions of the attorneys assigned to those pools to the ultimate outcome of the litigation against Syngenta.” Id. at 5926–27. Accordingly, the Kansas district cour t outlined the paramete rs for permissible objections: specifically, “objections to specifi c allocations based on the judgment of those courts” would not be entertaine d, whereas objections to “str uctural and procedural issues” would be. Id. at 5927. By way of example, the Ka nsas district court noted “an attorney could object . . . on the basis of a fraud in the proceedings in the other court,” which Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4748 requires “at least . . . a m echanism by which [such objec tion] could be raised.” Id. at 5927 n.4. But the court “would not entertain an objection based on th e argument that the objector’s contribution to the settlement cla ss should have been given more value.” Id.

c. The May 2019 Minnesota Pool Allocation Order On May 29, 2019, the Minnesota state cour t adopted in part and slightly modified an R&R prepared by the Mi nnesota CLC (the “Minnesota CLC’s R&R”) regarding the division of the $118,283,333 .33 in attorneys’ fees allo cated to the Minnesota common benefit pool. First, the court adopted the Minnesota CLC’s “proposed methodology of awarding each firm that submitted a claim for common be nefit time its approved audited lodestar amount for its common benefit work, as increased by an appropriate multiplier.” Id. , Vol. 29, at 6711 (Minn. State Ct. Order on Allocation of Minn. Common Benefit Fees, filed May 30, 2019) (“May 2019 Mi nnesota Pool Allocation Order”). Second, it embraced the Minnesota CLC’s “p roposed methodology . . . of compensating each firm’s PFS-related work on the basis of a flat fee for each PFS that was completed and submitted to Syngenta.” Id. And, third, the court adopted the “assignment of individual firms to separate tiers, number ed Tiers One through Five.” Id. at 6712. The court fielded numerous objections to the recommended allocation, including those raised by Johnson Becker and another appellant in th is matter, Shields Law Group (“Shields”). These objections largely fell into two buckets: (1) compla ints that the “flat fee of $250 per PFS . . . would not adequately compensate . . . for the amount of time . . . spent preparing PFSs”; and (2) complaints that the Minnesota CLC “unfairly and Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4849 artificially constrained” firms’ compensable lodestar amounts by applying multipliers to increase the lodestar amounts in Tiers One through Four, but not Tier Five. Id. at 6727– 28, 6734. With respect to the first set of objections, the court determined that a flat fee rate of $301.63 per PFS was fai r. Regarding the second se t, the court “adjusted the multipliers to be applied to the five tiers of attorneys” so that th e final multipliers would be 2.66 for Tier One, 2.3 for Tier Two, 1.65 for Tier Three, 1.45 for Tier Four, and 1.2 for Tier Five. Id. at 6712, 6741–42. Johnson Becker raised one additional objection outside these two categories. The Kansas district court’s December 31, 2 018, Fee Allocation Order assigned Johnson Becker to the Minnesota pool, not withstanding the fact that it worked in both Minnesota and Illinois. So, Johnson Becker asked the c ourt to apply a methodol ogy proposed in the Illinois district court when calculating its aw ard for work done in that jurisdiction. Indeed, Johnson Becker believed that the pr oposed Illinois methodo logy would generate a larger fee award than it would recei ve under the Minnesota methodology. The Minnesota state court was “not pers uaded . . . that a different methodology should apply to [Johnson Becker’s ] work performed in Illinois.” Id. at 6739. In that regard, the court seemed to zero in on the response to Johnson Becker’s request for clarification before the Kansas Special Mast er and the Kansas district court during a December 17, 2018, hearing. At the hearing, Johnson Becker declined to ob ject to the Kansas district court’s assignment of it to th e Minnesota pool. Instead, Johnson Becker asked the Kansas district court and the Kansas Special Master to clarify that it would be Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 4950 compensated for its Illinois work by the Minnesota state court. The Kansas Special Master confirmed that each court overseeing a common benefit pool would compensate firms for their work in multiple jurisdictions, at which point Johnson Becker concluded that it “came . . . to get . . . cl arification” and “received it.” Id. , Vol. 23, at 5315–16. Returning to the May 2019 Minnesota Po ol Allocation Order, the Minnesota state court advised that even if Johnson Becker we re reassigned to the Illinois pool, the court was not convinced it stood to recover more under any methodolo gy deployed by the Illinois district court. Thus, the court d eclined to award Johnson Becker “additional compensation beyond that which ha[d] been ca lculated under the allocation adopted in [the Minnesota state court’s] order.” Id. , Vol. 29, at 6739.
d. The August 2019 Illinois Pool Allocation Order In December 2018, the Illinois district cour t appointed a Special Master to issue an R&R on the division of attorneys’ fees from th e Illinois pool. The Illinois Special Master issued his R&R (the “Illinois Special Mast er’s R&R”) in March 2019. The Illinois district court largely rejected the Illinoi s Special Master’s R&R due to legal and methodological flaws it saw in the report. On August 19, 2019, the court issued its own recommended allocations for th e attorneys’ fee award prov ided to the Illinois common benefit pool. The court “review[ed] the hours the a pplicants submitted and ensure[d] they comport[ed] with the [Decem ber 31, 2018,] Fee Allocati on Order, common benefit principles, Johnson factors, and posture of th[e] litigation.” Id. , Vol. 29, at 6940 (S.D. Ill. D. Ct. Mem. and Order, filed Aug. 19, 2019 ). Relevant to this appeal, the court Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5051 recommended that O’Hanlon, Demerath & Castillo and Demerath Law Office (collectively “Demerath”) be awarded $780,166. 67 in fees, or 1% of the Illinois pool— half of the 2% allocation recomme nded by the Illinois Special Master. Though Demerath “claim[ed] 9,505.5 hours of common benefit wo rk, consisting of 6,060 attorney hours and 3,445.5 non-attorney hours,” the Illinois di strict court “afford[ed] significantly less weight to the non-attorney hours and little we ight to hours recorded as pre-settlement communication with clients and assisting clients in perfecting claims,” reductions warranted (in its view) by Demerath’s limite d contribution to the class overall or the Settlement. Id. at 6944. Similarly, the court recommended that th e Law Offices of Craig Eiland (“Eiland”) receive a $2,340,500 attorneys’ fee award, or 3% of the Illinois po ol—a reduction of one percentage point from the Illinois Special Ma ster’s recommended allocation. As with Demerath’s award, the Illinois district court “afford[ed] significantly less weight to the non-attorney hours and little weight to the hours recorded as pre-settlement communication with clients (over half of Eiland’s estimated attorney hours) and PFS work-related hours.” Id. at 6945. Because “the majority of Eiland’s hours consist[ed] of PFS work, communication with clients, assist ing clients with claims, and administrative work,” the Illinois district court found that a reduction in fees from the Illinois Special Master’s recommendati on was justified. Id. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5152 e. The Kansas District Court Adopts the Minnesota and Illinoi s Pool Allocation Orders In accordance with its Apr il 2019 Clarification Order, th e Kansas district court reviewed and adopted the Minnesota state co urt’s May 2019 Minnesota Pool Allocation Order in July 2019. Later, in November 20 19, the Kansas district court reviewed and adopted the Illinois district court’s August 2019 Illinois Pool Allo cation Order.
i. The July 2019 Minnesota Pool Allocation Order First, on July 16, 2019, the Kansas dist rict court adopted th e May 2019 Minnesota Pool Allocation Order over the objections of Shields and Johnson Becker. Abiding by the self-imposed discretion guidelines explaine d in its April 2019 Clarification Order, the Kansas district court deferred to the Minn esota state court’s allocation decisions and considered whether any of the objections raised claims of structural or procedural error. Relevant to these appeals, Shields filed an “objection” but conceded that “it d[id] not challenge the judgment of the Minnesota c ourt in making [its] allocation” and that its objection was “more akin to a motion for reconsideration.” Id. at 6870–71 (Kan. D. Ct. Mem. and Order, filed July 16, 2019) (“July 2019 Minnesota Pool Allocation Order”). Specifically, Shields asked the court to reconsider its Dece mber 31, 2018, Fee Allocation Order adopting the four-pool allocation structur e. Shields maintained that the four-pool structure “led to inequitable re sults (which had to occur before it knew to object . . .).” Id. at 6871. Drawing from the Illinois Special Maste r’s R&R—which, at that time, the Illinois district court had not largely rejected —Shields claimed that “certain firms in the Illinois . . . common benefit pool w[ould ] be better compensated . . . based on a Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5253 comparison of the number of corn producers represented by the firms and the number of common benefit hours claimed.” Id. The Kansas district court rejected this ar gument. It noted that Shields’s motion for reconsideration came “far too late.” 19 Id. (citing D. K AN

. R. 7.3(b), which imposed a fourteen-day deadline for fili ng a motion to reconsider a non-dispositive ruling). The court acknowledged that Shields did object to the Kansas Special Master’s November 2018 Fee Allocation R&R, upon which the c ourt’s December 31, 2018, Fee Allocation Order was based. However, Shields merely “argued th at the IRPA pool allocation was insufficient and that PFS work should be adequately compensated across all jurisdictions.” Id. at 6871 n.2. Notably absent from that objection was its current contention—that “the four-pool structure its elf would lead to inequitable results.” Id. Put differently, when Sh ields could have objected to the four-pool structure, it opted to focus on how best to fill the pools. Because the allocation process for eac h pool was “well underway,” the court found Shields’s “lack of tim eliness in making [its] argument . . . prejudicial.” Id. at 6871. Indeed, as the court observed, the allocation process for the Kansas pool “ha[d] been completed.” Id. Nor could Shields claim it needed to “‘play the game and see the result’ before it could offer its ‘critique,’” or “liken [] the end results of the allocations to new

19 In full, Rule 7.3(b) provides: “P arties seeking reconsideration of nondispositive orders must file a motion within 14 days after the order is filed unless the court extends the time. A motion to reconsid er must be based on: (1) an intervening change in controlling law; (2) the availability of new evidence ; or (3) the need to correct clear error or prevent ma nifest injustice.” D. K AN

. R. 7.3(b). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5354 evidence that could justify reconsideration.” Id. Simply put, the court concluded that Shields “was not permitted to have it both wa ys”—i.e., “go[ing] along with the Court’s approach and roll[ing] the dice hoping for a go od result, and then co mplain[ing] about the approach if ultimately dissatis fied with the outcome.” Id. at 6871–72. And, in any event, Shields failed in pe rsuading the court that it should not have adopted the four-pool structur e. Shields complained “s olely” about the scheme’s outcome but “ha[d] not explained why the us e of the four-pool structure was legally deficient.” Id. at 6872. Nor had Shields described how the four-pool structure’s use was inferior to some other method of allocation or why the court’s “reasons . . . for adopting that method of allocation” were somehow questionable. Id. Accordingly, Shields fell far short of convincing the court that “it must start all over with a different allocation methodology.” Id. Johnson Becker’s objections—which ra nged from valuation and pool-assignment concerns to constitutional due process cha llenges—were similarly unavailing. Johnson Becker initially “complain[ed] about the Minnesota court’s valuation of its common benefit work performed on cases filed in Illinois.” Id. at 6872–73. As with Shields’s objection, Johnson Becker relied on the (ultim ately rejected) analysis advanced in the Illinois Special Master’s R&R. Based on th at analysis, Johnson Becker argued “that it would receive a much greater fee award for its Illinois common benefit work if [either] it had been placed in the Illinois pool for purposes of that work or . . . the Minnesota court had employed the Illinois [S]pecial [M]aster ’s methodology in evaluating the Illinois work.” Id. at 6873. The court overruled this obj ection “to the extent that Johnson Becker Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5455 argue[d] that the Minnesota court should have applied the Illinois [Special] [M]aster’s methodology to [its] Illinois work,” instead deferring to the Minnesota court’s judgment regarding Johnson Becker’s common benefit work. 20 Id. Additionally, the Kansas district court re jected what amounted to a belated motion for reconsideration by Johnson Becker—i.e., its “argu[ment] that it should have been placed in both the Minnesota an d Illinois pools, with each co urt allocating fees for work performed on cases in its jurisdiction.” Id. Not only was this r econsideration request untimely under Kansas’s Local Rule 7.3(b), but Johnson Becker “effectively abandoned” it earlier in the post-judgment fee allocati on proceedings by not se eking “reconsideration of the Court’s [prior] decision to assign it only to the Minnesota pool.” Id. at 6875–76. Abandonment aside, the court also made plain that Johnson Becker, like Shields, failed to explain “ why the Court’s decision to place it in only the Minnesota pool was erroneous, other than by reference to the [presumed] end result.” Id. at 6876 (emphasis added). Turning to Johnson Becker’s third objection, which it also advances in this appeal, the Kansas district court rejected Johnson Be cker’s assertion that its assignment to the Minnesota pool violated its due process ri ghts. For one, Johnson Becker failed to establish a protected property interest in its fee award of any specific amount or in the application of a par ticular methodology. See id. at 6876–77. More than that, Johnson

20 As the Kansas district court no ted, Johnson Becker conceded in its objection that the Minnesota state court’s ru ling as to the allocation methodology made sense based on that court’s unfamiliarity with the Illinois litigation. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5556 Becker failed to demonstrate that it was the vi ctim of arbitrary decision-making, in large part because it received adequate process. As the district court explained: Johnson Becker had multiple opportunities to request placement also in the Illinois pool, but it abandon ed any such request. J ohnson Becker was also afforded ample process with respect to the Minnesota allocation, as it made multiple submissions to [the] Minneso ta CLC prior to its recommendation and submitted multiple briefs to the Minnesota court before it issued its allocation order. Id. at 6877. In sum, the court observed that Johnson Becker “was . . . afforded ample process with respect to the Minnesota allocation,” and it also “had multi ple opportunities to request placement . . . in the Illinois pool”—opportunities that it “abandoned.” Id. Thus, the court rejected Johnson Becker’s objection. 21
ii. The November 2019 Illinois Pool Allocation Order Next, on November 19, 2019 , the Kansas district court adopted the August 2019 Illinois Pool Allocation Order over the objections of Demerath and Eila nd. Pertinent here is the district court’s consideration of Deme rath’s and Eiland’s objections. Demerath and Eiland argued that, “despite its previous [Apr il 2019 Clarification] [O]rder,” the Kansas district court “should not limit the scope of its review of the [August 2019] Illinois [Pool Allocation] Order to structural and procedural issues, but should instead exercise its own

21 The court also rejected an objecti on filed by Toups/Co ffman, both because it was untimely, and because Toups/Coffman ha d “no standing to object to” the Kansas district court’s adoption of the Minnesota st ate court’s allocation of the Minnesota pool, as it “was assigned to the Kansas MDL comm on benefit pool, and the Minnesota court therefore did not consider Toup s/Coffman’s entitlement to fees.” Joint App., Vol. 29, at 6878. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5657 judgment.” 22 Id. , Vol. 32, at 7441 (Kan. D. Ct. Me m. and Order, filed Nov. 19, 2019) (“November 2019 Illinois Pool Allocation Order”). Give n the retirement of Judge Herndon, who had presided over the Illinois litigation, Demerath and Eiland argued that a more searching review of the August 2019 Illinois Pool Allocation Order made sense because the basis of the Kansas district c ourt’s deference—principally, the other court’s greater familiarity with the litigation in Illinoi s—was absent. In Demerath’s and Eiland’s view, that rationale could not be furthered because “Judge Rosenstengel[,] [who replaced Judge Herndon,] did not preside over the Illinois cases until after the settlement was complete.” Id. The Kansas district court reject ed this argument, explaining that: The reassignment to a new judge does not represent a new issue or a changed circumstance. At the time of this Court’s allocation order on December 31, 2018, Judge Herndon’s retirement was imminent and expected; and at the time of this Court’s order of April 2, 2019, in which the Court limited objections to structural and procedur al issues, Judge Rosenstengel had already been presiding over the Illinois cases for nearly three months (and [the Illinois Special Master] had al ready issued his R&R). Thus, the governing framework that includes deference to the Illinois court was adopted with the understanding th at a new Illinois judge would be determining the allocation from the Illinois pool. Id. at 7441–42. In any event, the court d eclined to alter th e “procedure and . . . scope” of its review of the Illinois district cour t’s allocation order after the fact. Id. at 7442. The court recalled that it had adopted a posture of defe rence not only because the Minnesota state

22 Demerath and Eiland timel y joined the objections that another party, Clark, Love & Hutson, made. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5758 and Illinois district courts “were better placed to make the allocations,” but also because such an approach reflected the parties’ unders tanding as memorialized in the Settlement. Id. at 7442–43. As the Kansas district court reasoned, Deme rath and Eiland “ha[d] not argued that the procedure and scope of review adopted by the Court violate[d] the law,” fell “outside of the Court’s discretion in awar ding fees,” or was “not a reasonable way to perform the allocation.” Id. at 7443. Thus, the Kansas di strict court reviewed only for procedural and structural e rrors and declined to consid er objections questioning the Illinois district court’s judgment on each fi rm’s relative contribution to the settlement class. Demerath and Eiland also broadly urged the Kansas dist rict court to reject the August 2019 Illinois Pool Allocation Orde r and instead adopt the Illinois Special Master’s R&R under which they both stood to receive larger fee allocations. However, the Kansas district court pointed out that neither Demerath nor Eiland “addressed the Illinois court’s specific reasoning concerning [their] contributions, and thus [had] not explained how [their] allocation[s] d[id] no t fall within the proper judgment of [the Illinois district] court.” Id. at 7448. The Illinois district court “properly considered the type of work for which [they] claimed co mmon benefit fees, and [then] applied [the Kansas district court’s] guidance in affordi ng less weight to non-a ttorney hours, claims work, and client communications.” Id. Thus, neither firm “identified a basis to disturb Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5859 the judgment of the Illinois [district] court,” and the Kansas district court, accordingly, overruled their objections. 23 Id.
5. The Kansas District Court’s July 2019 Expense Order In addition to the orders above, the Ka nsas district court adopted the Kansas Special Master’s R&R concerning expense aw ards. The court did so over the objection of Byrd and Shields.

a. The Kansas Special Master’s R&R on Expenses Before the Kansas district court ta sked her with recommending an expense allocation scheme, the Kansas Special Master anticipated that certai n expense guidelines the district court had previously entered were underinclusive. As such, in her November 2018 Fee Allocation R&R she effectively reco mmended that the Kansas district court enlarge the definition of “common benefit ex penses”—essentially, th e costs of litigation done in furtherance of the ultimate class r ecovery—to account for the expenditures that meaningfully contributed to the Settlement. Id. , Vol. 21, at 4823– 26. No attorney objected to that portion of her R&R, whic h the Kansas district court adopted. Later, in her R&R on expenses, the Kansas Special Master explained that, in the December 31, 2018, Fee Alloca tion Order, the Kansas district court “agreed that the definition of ‘common benef it’ hours and expenses elig ible for payment from the

23 As with the July 2019 Minnesota Pool Allocation Order, Toups/Coffman also filed an objection/motion for reconsid eration pertaining to the November 2019 Illinois Pool Allocation Order, which the Kansas district c ourt dismissed for largely the same reasons outlined in its July 2019 Minnesota Pool Allocation Order. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 5960 common fund . . . should extend beyond the definitions pr ovided under the applicable Kansas and Minnesota common benefit orders.” Id. , Vol. 26, at 6003. So expanded, “common benefit” expenses would “include items beyond those approved in advance by leadership under those orders.” Id. Thus, so long as a firm’s work provided a benefit to the settlement class or contributed to the ove rall settlement, that work would come under the umbrella of “common bene fit” work and expenses. Id. That said, the Kansas Special Master clarified that client re cruitment efforts or firm overhe ad costs, such as advertising expenses, would not be cons idered common benefit work. The Kansas Special Master also consider ed the specific category of expert and consulting fees. “As a general rule,” sh e “recommended approva l of expenses for ‘experts’ retained by law firm groups wh o were described as assisting [to get] information from existing clients . . . to comp lete PFSs, respond to discovery, fill out opt out forms from the certified litigation class, or apply for settlement benefits.” Id. at 6016–17. The Kansas Special Master also “generally recommended acceptance of charges for contract employees, including c ontract attorneys, who were described as doing similar work ( e.g. , assisting with client PFSs or discovery or responding to telephone inquiries) or were involved in assis ting at meetings reported to be with existing clients.” Id. at 6017. Likewise, the Kansas Sp ecial Master generally recommended acceptance of expenses for “legal and da mages experts and e xperts regarding the agricultural industry.” Id. However, she “did not . . . recommend acceptance of requests for reimbursement of hourly rates or salaries for law firm employees who performed such tasks,” as she “believ[ed] that those costs [were] subsumed in attorneys’ fee awards, and Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6061 should not be reimburs ed as expenses.” Id. With these propose d rules in mind, the Kansas Special Master recommended a to tal expenses award of $31,297,117.70.
i. Byrd’s Objections As mentioned, the Kansas district cour t adopted the Kansas Special Master’s R&R on expenses over several objections. Among them were certain objections of Byrd, which bear on the resolution of this appeal. First, Byrd claimed $539,603.02 in expenses, including $381,903.84 for “Expert/Consulting Fees Not Included in Common Benefit,” but “the [Kansas] [S]pecial [M]aster . . . recommended a total award to [Byrd] of $328,305.16, including $194,414.69 fo r expert/consultant expenses.” Id. , Vol. 29, at 6895 (Kan. D. Ct. Mem. and Order, filed July 19, 2019) (“July 2019 Expense Order”). Byrd “object[ed] . . . to the recommended deni al of expert/consultant expenses for paying 29 workers a total of $187,037.11.” Id. at 6895–96. To be sure , Byrd “state[d] that it d[id] not object to the [Kansas] [S]pecial [M]aster’s methodology, in which she drew [a] distinction between ‘contract employee s’ and ‘law firm employees.’” Id. at 6896. Rather, Byrd “object[ed] to the characterizat ion of [its] 29 workers as firm employees,” arguing that “its payments to these workers [were] not properly considered overhead of the firm.” Id. Specifically, Byrd claimed “that th ese workers were hired only for the duration of th[e] [ Syngenta ] litigation, worked on no other firm matters . . ., had their own workspace, and were paid an hou rly wage without benefits.” Id. Additionally, Byrd maintained these employees were “not part of the firm’s re gular overhead” because “four other associated firms shared in the cost of paying” them. Id. at 6896–97. However, as Byrd conceded, “it issu ed W-2s for these workers (instead of 1099s used for independent Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6162 contractors), based on the level of control the firm exerted over the workers,” arguing that “such treatment for tax purposes d[id] no t mean that these costs [wer]e properly considered overhead.” Id. at 6897. Rejecting this argument, the Kansas dist rict court first found the Kansas Special Master’s “distinction between contract work ers and firm employees” to be reasonable and “proper”—and, in any event, Byrd “d[i d] not object to the special master’s methodology,” which include d this distinction. Id. As the Kansas Special Master explained, she made this distinction beca use “work by firm em ployees [was] more properly considered in the context of an application for reasonable attorney fees.” Id. Consequently, the “primary consideration” as to the work fo r which Byrd sought compensation was “whether [it was] more prop erly considered as a ttorney fee work or [as] an expense.” Id. Put differently, the distinguishing factor was “whether the firm did the work inhouse, with its own employees, or whether th e firm shopped the work out to an outside party or parties.” Id. Under this framework, “it d[id ] not matter whether the workers were paid hourly or given a salary, or wh ether they were hired on a temporary or permanent basis.” Id. In Byrd’s case, the firm “chose to hire . . . workers and pay them directly as employees, exerting a level of control sufficient to demand treatment as employees for tax purposes.” Id. As a result, such workers were “reasonably treated as firm employees and not as contract workers in this context, and any reimbursement for th[eir] time should have come through the attorney fee award process.” Id. at 6897–98. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6263 Formal categorization aside, the court observed that Byrd , itself, “described these workers as having performed specific and othe r tasks necessary to complete PFSs,” for which Byrd “ha[d] been awarded attorney fees in the amount of $7 07,925.61 . . . .” Id. at 6898 n.4 (emphasis added). That PFS-specifi c attorneys’ fee amou nt, which was the sum of thousands of flat-fee-per-PFS awards, “was intended to compensa te the firm for all work performed on those PFSs by firm empl oyees (whether temporary or permanent).” Id. In short, Byrd had already been comp ensated for the work of these twenty-nine employees by way of the PFS-specific percenta ge of its total attorneys’ fee award. Accordingly, the court rejected Byrd’s ob jection to the Kansas Special Master’s recommendations as to the expense award. 24 Separately, Byrd claimed that it did not realize it could seek expenses until after it reviewed the Kansas Special Master’s R& R on expenses, in which she discussed allocations for expert fees. For that reason, Byrd sought to amend its application to account for an additional $31,549.75 in expenses incurred. Exercising its discretionary powers, the Kansas district court declined to reopen the allocation process for Byrd. According to the court, “[a] ll applicants” enjoyed “sufficient opportunity” to make expense requests. Id. at 6898. Byrd, however, failed to e xplain how it was “misled in any way” or why it believed it could not seek reimbursement for such costs. Id. Like the

24 The Kansas district court further e xplained that the majority share of the new expenses for which Byrd sought comp ensation comprised payments to temporary workers whom it described in the same gene ral terms as the twen ty-nine workers who assisted with the PFSs. Byrd did not claim to have paid an external entity for these workers, and the court classified them as la w firm employees—not contract workers. So, the court compensated their work throu gh the attorney fee award process. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6364 other firms, Byrd “could have requested any expenses that it desired,” especially since neither the court nor the Kansas Special Mast er made any pronouncement that expressly excluded expenses re lated to the settlement process. Id. But Byrd “chos e not to submit these expenses.” Id. Thus, the court concluded that it “wou ld be unfair to the integrity of the process to allow [Byrd] to make a [belated] new claim.” Id. at 6898–99.
ii. Shields’s Objection Also relevant to this appeal are Shie lds’s objection and motion to amend; they fared no better than Byrd’s objections. Sh ields sought “a claim for $40,053.51 for telephone charges incurred communicating with clients regarding PFSs and the settlement claims process,” plus a new “cl aim for $59,092.08 for payment to certain contract workers []who worked on PFSs and settlement claims.” Id. at 6899. Shields “originally included such expenses in its fi led application, but it later abandoned and withdrew [them] in submitting its detailed sp readsheet based on a [purported] ‘mistaken belief’ that they constituted imperm issible ‘overhead’ expenses.” Id. With respect to th e telephone charges, Shields did not explain in its objection why it initially determined that th e charges were properly classified as overhead expenses—or why that determination was erroneous. As such, the district court declined to reopen the application process. Regarding contract worker expenses, Shie lds explained in its reply brief that it initially withdrew this expense claim to avoi d double-dipping, as it intended to include the work in its attorney fee a pplication. But, after the Kans as Special Master issued her R&R on Expenses, Shields “rea lized that it could have been awarded expenses for its Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6465 contract workers,” without double-dipping, because the Minnesota state court “declined to award firms their lodestar amount in attorney fees for work on PFSs.” Id. at 6900. Disallowing this new claim, the Kansas district court noted that Shields “voluntarily chose to submit this incurred cost in its fee application instead of in its expense application” despite having “no reason” to believe that an expense award would preclude charges for contract workers. Id. Put differently, the court explained that Shields could “not try the other route simply because it [was] unhap py with the result of the route that it did choose.” Id. And, contrary to Shields’s suggestion, the “specter of double-dipping remain[ed]” b ecause the court intended that Shields’s fee award for PFS work—$643,980.05 for 2,135 PFSs—“provide reasonable compensation to [Shields] for the PFS work that [Shields] subm itted in its fee application.” Id. Given Shields’s voluntary conduct and its attorneys’ fee award, the court “in its discretion decline[d] to reopen the [expense] process to allow [S hields] to submit [its] new claim.” Id.
6. The Watts Guerra Se ttlement Agreement We previously mentioned that Watts Gue rra—a party to the instant appeal—exited this matter after settling its clai ms against the Appellees (the “Watts Guerra Settlement”). In December 2020, Watts Guerra and the Appellees moved in Ka nsas district court for an indicative ruling pursuant to Rule 62.1 of th e Federal Rules of Civil Procedure. Under the Watts Guerra Settlement, Watts Guerra woul d receive an additional sum, to be paid from the fee awards of the other parties to th e agreement. By design, the Watts Guerra Settlement would not affect the fee awards of firms that were not party to the agreement. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6566 7. The June 2021 IRPA Po ol Allocation Order Rounding out the relevant procedural bac kground for these appe als, most recently, on June 4, 2021, the Kansas district c ourt adopted the Kansas Special Master’s recommendation concerning attorneys’ fee awards allocated to the IRPA pool and entered an order to this e ffect—again, over objections fro m Shields and Toups/Coffman.
See Joint Supp. App., Vol. 13, at 3561 (Kan. D. Ct. Mem. and Order, filed June 4, 2021) (“June 2021 IRPA Pool Allocation Order “). 25 The Kansas district court entered its June 2021 IRPA Pool Allocation Order after th e appeals were brought before the Tenth Circuit, and just after oral argument was held on March 10, 2021. We permitted the Appellants to file limited supplemental briefing in response to this order. 26 We now move on to describe what the Appellants in this case specifically challenge before us.
C. The Current Appeals The Kansas district court and the pa rties themselves have largely grouped Appellant law firms and attorneys and their resp ective contentions into five pools. They

are:

• “Kansas Appellants”—i.e., Toup s/Coffman and Hossley-Embry;

25 In an exercise of our discretion, we take judicial notice of the Kansas district court’s subsequent proceedings and orders related to the appeals at hand. See, e.g. , United States v. Smalls , 605 F.3d 765, 768 n.2 (10th Cir. 2010).

26 The Panel’s order prohibited the partie s from “rais[ing] any challenge to the district court’s allocation of the IRPA pool itself” and limited the supplemental briefing “to arguments regarding whether, and to what extent, the [June 2021 IRPA Pool Allocation Order] . . . affect[ed] the fee alloca tion issues already briefed by the parties.” In re Syngenta AG MIR 162 Corn Litig ., Nos. 19-3008, et al. , Order (entered July 12, 2021) (the “Supplementa l Briefing Order”). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6667 • “Minnesota Appellants”—i.e., Byrd and Shields; 27

• “Illinois Appellants”—i.e., Eiland and Demerath;

• Byrd and Shields; 28 and

• Johnson Becker. Appellants in this action have specifically cha llenged various facets of the Kansas district court’s orders as to the fee allocation process. At bottom, the following orders are at issue here: (1) the December 31, 2018, Fee Allocation Order; (2) the March 2019 Kansas Pool Allocation Order; (3) the July 2019 Minnesota Pool Allocation Order; (4) the November 2019 Illinois Pool Allocation Order; and (5) the July 2019 Expense Order. More specifically, Kansas Appellants, Minnesota Appellants, and Johnson Becker challenge the Kansas district court’s December 31, 2018, Fee Allocation Order. 29 Kansas

27 Byrd and Shields together with Watts Guerra previously functioned as the “Minnesota Appellants.” But, as we have explained above, on January 7, 2021, Watts Guerra reached a settlement and the Tenth Circuit’s Clerk of Co urt filed an order terminating it as an appellant in this case.

28 While also functioning as “Minnesota Appellants” in these appeals, Byrd and Shields additionally pursue a separate action, bringing a stand-alone appeal related to expenses and the IRPA pool allocation.

29 Toups/Coffman has filed a notice for virtually every order entered in the post-judgment proceedings. Toups /Coffman filed its first notice of appeal on January 7, 2019, purportedly challenging the Kansas district court’s Aggregate Fee Order and corresponding Final Order and Judgment both entered on Decemb er 7, 2018. But Toups/Coffman clarifies that it appeals from those orders “ only with respect to their provisions pertaining to, delineating, and/or affecting the process, procedures, and criteria for, and the administration of, the allocation a nd distribution of the attorneys’ fees and expenses awarded by the Court in this acti on. Toups/Coffman Plaintiffs’ Counsel and Toups/Coffman Plaintiffs specifically do not a ppeal the fairness and/or overall amount of Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6768 Appellants also target the March 2019 Kansas Pool Allocation Order. Proceeding merely as Byrd and Shields, and not as Minnesota Ap pellants, Byrd and Shields target the July 2019 Minnesota Pool Allocation Order, wh ich Johnson Becker also appeals. For their part, Illinois Appellants bring a narrow challenge to the Kansas district court’s November 2019 Illinois Pool Allocati on Order. And, finally , proceeding not as Minnesota Appellants but as “Byrd and Shield s,” Byrd and Shields appeal the Kansas district court’s July 2019 Expense Order. 30
II. Discussion We begin by assessing our appellate jurisdic tion. Once assured of it, we discuss our scope of review. As the factual backgr ound illustrates, many of the appellants failed to lodge appropriate objections before the Kansas district court. Furthermore, several of the appellants failed to raise or adequately present arguments in their opening briefs. Consequently, our waiver and fo rfeiture doctrines have some bearing on the resolution of these appeals, and we thus offe r a general overview of these preservation doctrines. With our standard of review and pr eservation doctrines in mind, we then turn to each party’s specific appellate issues. Ultimately, we up hold the Kansas district court’s rulings.

the settlement of this action.” Joint App., Vo l. 23, at 5394–95 (Notice of Appeal, filed Jan. 7, 2019). 30 Summing these up, we have numerous notices of appeal filed prior to the publication of the June 2021 IRPA Fee Allocation Order, and three notices from the Kansas and Minnesota Appellants filed after that allocation. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6869 A. Jurisdiction
1. Finality Because “[f]ederal courts are ‘courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitutio n and statute,’” we must en sure we have jurisdiction before delving into the parties’ arguments. Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad , Inc. , 693 F.3d 1195, 1201 ( 10th Cir. 2012) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 552 (2005)); accord McClendon v. City of Albuquerque , 630 F.3d 1288, 1292 (10th Cir. 2011) (“ The courts of appeals are creations of Congress and the boundaries of their jurisdiction are staked by statute.”). Due to these limitations, we “presume[] that a cause lies ou tside [our] . . . jurisdiction” unless “the party asserting jurisdiction” carries its “burden of esta blishing the contrary.” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994); accord Full Life Hospice, LLC v. Sebelius , 709 F.3d 1012, 1016 (10th Cir. 2013) (“[B]ecause the jurisdiction of federal courts is limited, there is a presumption ag ainst our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” (quoting Marcus v. Kan. Dep’t of
Revenue , 170 F.3d 1305, 1309 (10th Cir. 19 99))). Thus, we must examine our jurisdiction even when no party raises it. McGeorge v. Cont’l Airlines, Inc. , 871 F.2d 952, 953 (10th Cir. 1989); see 1mage Software, Inc. v. Reynolds & Reynolds Co. , 459 F.3d 1044, 1048 (10th Cir. 2006) (“Federal courts ‘have an independent obligation to determine whether subject-matter jurisdiction ex ists, even in the absence of a challenge from any party,’ and thus a court may sua sponte raise the question of whether there is Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 6970 subject matter jurisdiction ‘at any stage in the litigation.’” (quoting Arbaugh v. Y&H Corp. , 546 U.S. 500, 5 06, 514 (2006))). Congress authorized the courts of appeals to hear “appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291 (empha sis added). But, as we have narrated, the parties first filed their notices of appeals while the Kansas district court was still allocating the $503,333,333.33 ag gregate attorneys’ fee award granted in the Aggregate Fee Order and Final Order an d Judgment filed on December 7, 2018. Indeed, the Kansas district court did not comp lete allocation of the attorneys’ fee award among the law firms within th e four common benefit pools until June 4, 2021, when it entered the June 2021 IRPA P ool Allocation Order—that is, a few months after we heard oral argument in this case. So, at this juncture, the question is whether we have jurisdiction to review appeals fro m the parties that were filed before the June 2021 IRPA Pool Allocation Order. Put differently, we as k whether any of the pre-June 2021 appeals challenge orders that have the requisite finality to be appealable. To answer this question, we must review what makes a “final decision” final. Though acknowledging that fi nality determinations cannot be reduced to “a formula,” Gillespie v. U.S. Steel Corp. , 379 U.S. 148, 152 (1964), the Supreme Court has explained “a [district] court’s decision ordinarily beco mes ‘final,’ for purposes of appeal, only upon completion of the entire case,” Ritzen Grp., Inc. v. Jackson Masonry , --- U.S. ----, 140 S. Ct. 582, 586 (2020). Determining finality, th en, is a functional inquiry: when a district court has no more to do bu t “execute the judgment,” we k now that the decision it has entered is final for the purposes of c onferring jurisdiction under § 1291. Van Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7071 Cauwenberghe v. Biard , 486 U.S. 517, 521–22 (1988) (quoting Catlin v. United States , 324 U.S. 229, 233 (1945)); accord Gelboim v. Bank of Am. Corp. , 574 U.S. 405, 408–09 (2015) (explaining that a final decision is one “by which a district court disassociates itself from a case” (quoting Swint v. Chambers Cnty. Comm’n , 514 U.S. 35, 42 (1995))). Our own discussions of finality trac k with these general contours. In McClendon , we explained that finality, “for purposes of § 1291[,] . . . signal[s] [that] the litigation is over.” 630 F.3d at 1295. And in D&H Marketers, Inc. v. Freedom Oil & Gas , Inc. , 744 F.2d 1443 (10th Cir. 1984), we explained that § 1291 “require[s] the termination of all matters as to all parties and causes of action before an appeal may be taken.” Id. at 1444. In short, Congress’s finality requirement “pr ecludes consideration of decisions that are subject to revision.” Roska ex rel. Roska v. Sneddon , 437 F.3d 964, 969–70 (10th Cir. 2006) (quoting Behrens v. Pelletier , 516 U.S. 299, 305 (1996)). That an attorneys’ fee award tends to arise in th e context of post-judgment proceedings is not cause to depart from these well-settled rules. Indeed, courts tend to treat post-judgment proceedings as standalone litigation units subject to the same finality rules that apply to prejudgment merits proceedings. See, e.g. , Caribbean Mgmt. Grp., Inc. v. Erikon LLC , 966 F.3d 35, 40 (1st Cir. 2020) (co llecting cases) (“When evaluating the finality of an order entered after judgme nt, courts generally treat the post-judgment proceeding as if it were a lawsuit distinct from the suit that generated the underlying judgment.”); In re Joint E. & S. Dists. Asbestos Litig. , 22 F.3d 755, 760 (7th Cir. 1994) (“[A] postjudgment proceeding, for purposes of appeal, must be viewed as a separate lawsuit from the action which produc ed the underlying judgment.”); see generally 15B Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7172 Charles Alan Wright & Arthur R. Miller, F EDERAL P RACTICE & P ROCEDURE § 3916 (2d ed.), Westlaw (database updated April 2022) (“A ppeal ordinarily should not be available as to any particular post-judgment proceeding before the trial court has reached its final disposition. Once the district court has comp letely disposed of the matter, its decision should be found final.”). As the Eleventh Circu it helpfully explained, [I]n postjudgment pr oceedings, such as attorney fee disputes, the meaning of a final decision is less clear becaus e the proceedings necessarily follow a final judgment. Even so , we treat the postjudgme nt proceeding as a freestanding litigation, in effect treating the final judgment as the first rather than the last order in the case. Thus, an orde r is deemed final if it disposes of all the issues raised in the motion that initially sparked the postjudgment proceedings. . . . Only if a postjudgment order is appa rently the last order to be entered in the action is it final and appealable. Mayer v. Wall St. Equity Grp., Inc. , 672 F.3d 1222, 1224 (11t h Cir. 2012) (per curiam) (alterations, citations, a nd quotations omitted). While notin g that this bright-line rule cohered with the Supreme Court’s “practical construction of 28 U.S.C. § 1291,” the Eleventh Circuit also r ecognized that it promoted the salu tary goal of efficient litigation: “For us to hold otherwise invites litigants to appeal every attorney’s fee order, even if other requests remain outstanding , resulting in a proliferation of piecemeal or repetitious appeals.” Id. (emphasis added). The Sixth Circuit employed a similar rationale in JPMorgan Chase Bank, N.A. v. Winget , 920 F.3d 1103 (6th Cir. 2 019), where it dismissed an ap peal of an interim award of attorneys’ fees made post-judgment becau se the post-judgment fee proceedings were ongoing. Id. at 1104. The Winget litigation began with Chase Bank suing Mr. Winget for millions he owed to it under a credit agreement. See id . After numerous appeals Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7273 dealing with both the merits a nd issues pertaining to attorn eys’ fees, the district court entered a final amended judgment against Mr. Winget, and the case moved into “postjudgment proceedings” concerning, inter alia , “what assets Chase can collect, how Chase can collect those assets, and what those assets are worth.” Id. at 1105. As these proceedings “dragg[ed] on, Chase periodically ask[ed] the district court for more attorneys’ fees.” Id. The court granted one of Chas e’s motions, and in doing so highlighted the “interim nature of the award.” Id. Nonetheless, Mr. Winget appealed this interim award of attorneys’ fees. Id. at 1104. Observing that district courts “typically resolve[] all attorneys’ fees in a single, final order” over which an appellate court ca n exercise jurisdiction, the Sixth Circuit dismissed Mr. Winget’s appeal because it pert ained to “an interim award of attorneys’ fees post -judgment, where the post-judgment proceedings [were] ongoing .” 920 F.3d at 1106–07. In other words, “this award of a ttorneys’ fees did not end the post-judgment litigation”; instead, “applying the post-judgme nt completeness rule” would reveal the appeal “not [to be] from a final, appealable order.” Id. at 1107. This characterization of an interim fee award “ma[de] sense” because allowing for such ap peals would encourage the very kind of uneven, ine fficient litigation that the fina lity rule aims to avoid. Id. at 1107–08. 31

31 Both the Eleventh Circuit’s reasoning in Mayer and the Sixth Circuit’s reasoning in Winget —both discussed supra —find some support in caselaw from other circuit courts. See Autotech Techs. LP v. Integral Rsch. & Dev. Corp. , 499 F.3d 737, 745 (7th Cir. 2007) (“[W]e ‘treat the post-judgme nt proceeding as if it were a free-standing lawsuit and . . . identify the final decision in the post-judgment proceeding and confine any further appeal under section 1291 to that decision.’ ‘A postfinal order will be treated Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7374 In practical terms, none of the Appellants challenge the Settlement or the aggregate fee award of $503 million per se ; rather, their appeals all center on the allocation of that fee award. Indeed, the parties fi led most, if not virtually all, of their notices of appeal with respect to fee allocation orders that were entered during postjudgment proceedings after the Kansas district court’s December 7, 2018, Final Order and Judgment and before the June 2021 IRPA Pool Allocation Order, which completed the fee-award allocation process. Akin to the appellants in Mayer and Winget , Appellants in this action prolifically (and in piecemeal fashion) appe aled from various fee awards that appeared “final”—in the sense that they disposed of a particula r, discrete issue that the district court was unlikely to revisit—even though these awards did not, alone or in combination, resolve the overall fee allocation proceedings writ la rge. Critically, we conclude that all proceedings after the Kansas district c ourt’s Aggregate Fee Or der and corresponding Final Order and Judgment constitute one, po st-judgment litigation that only concluded with the filing of the June 2021 IRPA Pool Allocation Order.

as “final” for purposes of section 1291 if it “dispose[s] of all issu es raised in the postjudgment motion.”’” (citations omitted) (first quoting Bogard v. Wright , 159 F.3d 1060, 1062 (7th Cir. 1998); and then quoting JMS Dev. Co. v. Bulk Petroleum Corp. , 337 F.3d 822, 825 (7th Cir. 2003))); Jensen Elec. Co. v. Moore, Ca ldwell, Rowland & Dodd, Inc. , 873 F.2d 1327, 1329 (9th Cir. 1989) (“An orde r awarding attorney’s fees which does not fully dispose of the issue of attorney’s f ees is not a final, appealable order.”); cf. Wickersham v. City of Columbia , 221 F. App’x 488, 489 (8 th Cir. 2007) (unpublished) (dismissing appeal for lack of jurisdiction where district cour t “ha[d] not yet resolved the apportionment of fees” and this apportionmen t was more than a me chanical exercise). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7475 Keeping in mind the persuasive dis positions of our sister circuits in Mayer and Winget , our jurisdictional inquiry in this case centers on whether there is an order or judgment that has resolved all outstandi ng fee issues, which would render the postjudgment litigation final and appe alable. Such an order did not exist before June 2021. Prior to that, we had orders that only had the effect of continually moving the Kansas district court toward a final resolution of a ll outstanding fee issues. That final resolution did arrive, however, with the IR PA Pool Allocation Order. Applying our well-established st andards and the caselaw discussed supra , we must necessarily conclude that all appeals cha llenging the Kansas dist rict court’s various allocation orders after the Aggregate Fee Order and Final Order and Judgment and before the June 2021 IRPA Pool Allo cation Order were not appeals from final orders as required for our jurisdictional purposes. In other word s, Appellants’ notices of appeal were filed prematurely, such that at the time when they were filed, we did not have jurisdiction to review them. But, fortunately for Appellant s, that is not the end of the story.
2. Ripening Notwithstanding this determination, both our caselaw and Rule 4(a)(2) of the Federal Rules of Appellate Procedure pos it that a premature notice of appeal may “ripen[]” upon the conclusion of the district court procee dings if we have not yet dismissed the premature appeals. See, e.g. , Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645 (10th Cir. 1988) (en banc) (“[W]hen a district court ha s adjudicated all remaining outstanding claims before this appellate court acts to dismiss the appeal, we will consider the appeal on its merits rather than dism iss for lack of jurisdiction . . . .”); see F ED

. R. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7576 A PP

. P. 4(a)(2) (“A notice of appeal filed afte r the court announces a decision or order— but before the entry of the judgment or order— is treated as filed on the date of and after the entry.”); see also Harbert v. Hea lthcare Servs. Grp., Inc. , 391 F.3d 1140, 1146 (10th Cir. 2004) (noting that, in Lewis , “we held that an otherwise nonfinal decision becomes final and appealable if the district court adjudicates all remaining claims against all remaining parties before the appellate court ac ts to dismiss the appeal on the merits for lack of jurisdiction”). As all parties have represented, allocation of the IRPA pool was the only outstanding fee-related action left for the district court to accomplish, and with its completion, we believe the post-judgment fee proceedings concluded. So, we must ask whether the June 2021 IRPA Pool Allocation Order ripened the Appellants’ otherwise premature notices of appeal. An d, more specifically, whether the June 2021 IRPA Pool Allocation Order ripene d the notices of appeal pertaining to the orders that the Appellants seek to challenge in this matter. For the reasons explicated below, we answer that inquiry in the affirmative. The Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage
Insurance Co. , 498 U.S. 269 (1991), begins our treatment of this question. There, the appellant filed its notice of appeal after the di strict judge orally announced that he would grant a motion for summary judgment on all cl aims but before he entered written findings of fact and conclusions of law. Id. at 271–72. In addressi ng whether the appellant’s notice of appeal was “fatally premature,” th e Court construed Rule 4(a)(2) to recognize that the “technical defect of prematurity. . . should not be allo wed to extinguish an otherwise proper appeal” when ther e is a lack of prejudice. Id. at 273. Consequently, the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7677 Court held that “Rule 4(a)(2) perm its a notice of appeal filed from certain nonfinal decisions to serve as an effective notice from a subsequently entered final judgment.” Id. at 274 (emphases added). But just as app eals from “certain” nonfinal decisions fall within the ambit of Rule 4(a)(2 ), certain others do not. As the Court put it, “Rule 4(a)(2) [does not] permit[] a notice of appeal from a clearly interlocutory decision—such as a discovery ruling or a sanction order under Rule 11 of the Federal Rules of Civil Procedure—to serve as a notice of appeal from the final judgment.” Id. at 276. With this limitation in mind, a premature notice of appeal ripens after entry of the final judgment only when the district court’s decision “ would be appealable if immediately followed by the entry of judgment” because “[i]n these in stances, a litigant’s confusion” about the finality of the decision is “understandable.” Id. As we have recognized, FirsTier ’s “discussion about the lim its of Rule 4(a)(2) is open to many different understandings.” In re Woolsey , 696 F.3d 1266, 1271 (10th Cir. 2012). And some of our sister circuits have reached a similar assessment of the case. See, e.g. , Outlaw v. Airtech Air Co nditioning & He ating, Inc. , 412 F.3d 156, 161 (D.C. Cir. 2005) (noting that FirsTier ’s discussion reflects “a ra ther imprecise guide for a jurisdictional rule”). Fortunat ely, our caselaw issued after FirsTier —and in some instances expressly interpreting it—has clar ified when Rule 4( a)(2) might ripen a premature notice of appeal. In reviewing that caselaw, we have noted that ripening occurs so long as the prematurely appealed order bears “some indi cia of finality and is likely to remain unchanged during subsequent court proceedings.” Elm Ridge Expl. Co., LLC v. Engle , Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7778 721 F.3d 1199, 1209 n.5 (10th Cir. 2013) (quoting Fields v. Okla. State Penitentiary , 511 F.3d 1109, 1111 (10th Cir. 2007) (non-precedential order and judgment) (construing
FirsTier )). Our “indicia of finality” standard traces its roots mo st prominently to Hinton v. City of Elwood , 997 F.2d 774 (10th Cir. 1993), where we explained that “to require the filing of a new notice of a ppeal” when the appe aled-from order lacks “technical formal finality” but “is likely to remain unchanged in both its form and its content” would “amount to little more than ‘empty paper shuffling.’” Id. at 778 (emphasis added) (quoting Lewis , 850 F.2d at 644). To be sure, Hinton did not expressly mention FirsTier —even though it was issued after FirsTier

. See Hinton , 997 F.2d at 778. Nevertheless, Hinton ’s interpretation of ripening principles appears to be congruent with FirsTier ’s. And, as we explained in In re Woolsey , Hinton ’s interpretation is binding on us. See In re Woolsey , 696 F.3d at 1271. Applying Hinton ’s standard—that “a premature notic e of appeal retains its validity only when the order appealed from is likely to remain unchanged in bo th its form and its content”—to the double-layered interloc utory bankruptcy appeal at issue in In re Woolsey , we concluded that a prematurely appealed district court order was “amenable to appellate review” where “the bankruptcy co urt could not undo [ it] later” and “it resolve[d] the only appealed issue to arise out of the [since] concluded bankruptcy proceedings and so could not be changed in any event.” Id. (quoting Hinton , 997 F.2d at 778). Our decision in B. Willis, C.P.A., Inc. v. BNSF Railway Corp. , 531 F.3d 1282 (10th Cir. 2008) also offers instructive guidance. In Willis , the district court dismissed Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7879 most of the plaintiff-appellant’s claims, and, approximately six mont hs later, it granted two of three defendants summary judg ment on the remaining claim. See id. at 1295. A third defendant did not move for summary ju dgment, so the plaintiff-appellant retained one claim. See id. Following the district court’s su mmary judgment order—but before the district court entered a final, appealable order (as the plaintiff-appellant’s remaining claim against the third defendant was still pending)—the plainti ff-appellant filed its notice of appeal. See id. This third defendant subsequently moved for summary judgment, which the district court granted. See id. On that same day, the district court also entered a judgment “t erminating th[e] matter.” Id. Denying the defendant-appellees’ motion to dismiss the premature appeal for lack of jurisdiction, we concluded that the district court’s “final decision . . . ripened [the plaintiff-appellant’s] prematurel y filed notice of appeal.” Id. (emphasis added). Specifically, we found that we have jurisdicti on to “consider an appeal from the district court’s [initial summary judgment] orde r, which was the decision named in the prematurely filed notice of appeal.” Id. As well, because the plaintiff-appellant’s notice also referred to the district court’s “prior or ders,” we were satisfied that we also had jurisdiction to review those earlier decisions. Id. at 1295–96. Though Willis did not expressly employ the “indicia of finality” standa rd that we embrace here, its treatment of the notice of appeal there accords with that standard —where the initial summary judgment order from which app eal was prematurely taken in Willis was unlikely to change in both its “form and . . . content,” Hinton , 997 F.2d at 778. See Willis , 531 F.3d
at 1295–96. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 7980 Under Hinton ’s “indicia of finality” principle, the premature notices at issue here have ripened, because all the nonfinal orders the parties appealed from either were recognized as final by the dist rict court or otherwise bore su fficient indicia of finality. More specifically, the “indicia of finality” wa s evidenced through th e district court’s adoption of certain reports and recommenda tions over objections, the court’s express language awarding certain fees, and the cour t’s post-award clarification orders and other orders declining reconsideration. See, e.g. , Joint App., Vol. 22, at 5111–21 (the December 2018 Fee Allocation Order) (awarding fees in the amount of one-third of the settlement fund after considerable briefing); id. , Vol. 25, at 5874–75 (March 2019 Kansas Pool Allocation Order) (adopting the Kansas CLC’s proposed allocations over objections and ordering that “fees are hereby aw arded to particular attorneys”); id. , Vol. 26, at 5925 (April 2019 Clarification Order) (“There is no requirement that the Court’s final allocation rulings be contained in a single order. The Court has already issued its final allocation order for the Kansas MDL common benefit pool. The court will issue its other allocation orders—for the Minnesota common benefit pool, the Illinois common benefit pool, the IRPA pool, and expenses—. . . as completed . It will then be up to interested parties to prosecute appeals when and how they see fit.” (emphases added)); id. , Vol. 29, at 6864–79 (July 2019 Minnesot a Pool Allocation Order) (adopting the Minnesota state court’s allocation order over objections and ordering that “the Minnesota state court common benefit pool of attorney fees shall be allocated and fees are hereby awarded”); id. , at 6898 (July 2019 Expense Order) (declin ing to “reopen the expense application process to allow a new claim”); id. , Vol. 32, at 7449–51 (the November 2019 Illinois Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8081 Pool Allocation Order) (expressly declining to reconsider prior fee allocation orders in the district court’s order allocati ng the Illinois common benefit pool); cf. Case No. 2:14- md-02591-JWL-JPO, Doc. 4499, at 3–12 (Kan. D. Ct. Mem. and Order, filed Dec. 2, 2020) (finding the district cour t lacked jurisdiction to rule on a motion to reconsider prior fee allocation rulings, but concluding, in the alte rnative, that “[t]here [was] no basis for . . . reconsideration” of prior fee orders). These actions by the distri ct court and the surrounding circumstances make clear that it would be reasonable for the litigants to believe that the decisions were final. See
FirsTier , 498 U.S. at 276. Or, put differently, the text and context of the “order[s] appealed from” underscore that they were “ likely to remain unchang ed in both [their] form and [their] content” at th e time they were appealed. Hinton , 997 F.2d at 778. The June 2021 IRPA Pool Allocati on Order simply brought the fee allocation process to a completion; it did not disturb the myriad co mmon benefit pool alloca tion orders at issue here. Cf. In re Woolsey , 696 F.3d at 1271 (finding Hinton ’s test satisfied “where, as here, the appealed order from the district court . . . resolves the only outstanding issue in what has, by the time it reaches us, become an ot herwise completed bankruptcy proceeding”). Pursuant to ripening, then, we have jurisdiction over all challenges brought by Appellants, except any challenges the parties may raise to the IRPA pool allocation order itself. Such challenges to the IRPA pool allocation order would post-date the premature (ripened) notices of appeal. See Willis , 531 F.3d at 1295–96. 32 

###   

32 In Willis , we concluded that the plainti ff-appellant’s premature notice was insufficient for us to exerci se appellate jurisdiction over the district court’s final Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8182 Thus, in light of the foregoing, the notices of appeal filed by Appellants before the June 2021 IRPA Pool Allocation Order ar e sufficient to confer jurisdiction over Appellants’ challenges here to orders publis hed and articulated between December 7, 2018—the day the Kansas district cour t entered its Aggregate Fee Award and corresponding Final Order and Ju dgment—and June 4, 2021, wh en it issued its June 2021 IRPA Fee Allocation Order.
B. Standard of Review “We review a district court’s attorney s’ fees award for abuse of discretion,” though “[i]n doing so, we revi ew the district court’s application of legal principles de novo, and we review the district court’ s findings of fact for clear error.” Schell v. OXY
USA Inc. , 814 F.3d 1107, 1126 (10th Cir. 2016) (quoting ClearOne Commc’ns, Inc. v.

judgment. See 531 F.3d at 1296 (“[Plaintiff’s] prematurely filed notice of appeal, however, was not sufficient to give this court jurisdiction to consider an appeal from the district court’s final judgment.”). To revi ew this final judgment, which postdated the premature notice of appeal, the plaintiff-appellant needed to timely file a second notice of appeal. See id. Though the plaintiff-appellant failed to do so, we treated its “amended docketing statement, filed . . . on February 9, 2 006, after the district court’s final decision, as the ‘functional equivalent’ of a second notice of appeal” a nd concluded we had jurisdiction to review an appeal of this final decision as well. Id. (quoting Smith v. Barry , 502 U.S. 244, 245, 248 –49 (1992)). Applying Willis ’s framework to this case, to appeal the district court’s June 2021 IRPA Pool Allocation Order, Appellants needed to have filed additional notices of appeal as to that order—as their prior notices would not bring this later-filed order within th e ambit of our jurisdiction. See id. ; see also Nolan v. U.S. Dep’t of Just. , 973 F.2d 843, 846 (10th Cir. 1992) (“We have never held . . . that the filing of a final order serves to ripen not only the previous premature appeal but also any subsequent appeals arising out of the same case.”). The Kansas and Minnesota Appellants filed notices of appeal challengi ng the June 2021 IRPA Pool Allocation Order. However, the merits issues in the appe als now before us focus exclusively on the Kansas district court’s orders before June 2021, and we have abated the appeals filed with respect to the court’s June 2021 IRPA Pool Allocation Orde r pending our resolution of these appeals. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8283 Biamp Sys. , 653 F.3d 1163, 1184 (10th Cir. 2011)); see also First Am. Title Ins. Co. v. Nw. Title Ins. Agency , 906 F.3d 884, 900 ( 10th Cir. 2018) (“‘Generally speaking, we review the decision to award attorney fees, and the amount awarded, for abuse of discretion,’ though any legal analysis unde rlying the award is reviewed de novo.” (quoting Xlear, Inc. v. Focus Nutrition, LLC , 893 F.3d 1227, 12 33 (10th Cir. 2018))); Case v. Unified Sch. Dist. No. 233 , 157 F.3d 1243, 1249 (10th Cir. 1998) (“[A]n attorneys’ fee award by the district court will be upset on appeal only if it represents an abuse of discretion.” (altera tion in original) (quoting Mares v. Credit Bureau of Raton , 801 F.2d 1197, 12 01 (10th Cir. 1986))); see also Law v. Nat’l Collegiate Athletic Ass’n , 4 F. App’x 749, 751 (10th Cir. 2 001) (unpublished) (“In class actions, the district court has broad authority over awards of attorneys’ fees ; therefore, our review is for an abuse of discretion.” (quoting In re FPI/Agretech Sec. Litig. , 105 F.3d 469, 472 (9th Cir. 1997))). The watchword of our abuse- of-discretion review is deference

. See O’Connor v. R.F. Lafferty & Co. , 965 F.2d 893, 903 (10th Cir. 1992) (“ We give deference to a district court’s decision regarding attorneys’ fees. . . . [and] only overturn these decisions where the district court abuses its discretion.”). It has been said on countless occasions that this deference stems from a recognition of the district (i.e., trial) court’ s “superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual
matters.” Hensley v. Eckerhart , 461 U.S. 424, 437 (1983); see also Zisumbo v. Ogden Reg’l Med. Ctr. , 801 F.3d 1185, 1207 (10t h Cir. 2015) (“Because the district court ‘is in a better position than an appellate court to determ ine the amount of effort expended and the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8384 value of the attorney’s serv ices,’ we review an attorney ’s fee award for abuse of discretion.” (quoting Flitton v. Primary Residential Mortg., Inc. , 614 F.3d 1173, 1176 (10th Cir. 2010))); Anchondo v. Anderson, Crenshaw & Assocs., L.L.C. , 616 F.3d 1098, 1104 (10th Cir. 2010) (noting that we “owe [] much deference” to a district court’s “uniquely informed on-the-spot ” attorneys’ fee decisions); McInnis v. Fairfield Cmtys.,
Inc. , 458 F.3d 1129, 1148 (10th Cir. 2006) (“[U]ltimately ‘a n appellate court plays [only] a “limited role” in reviewing a district court’ s award of attorneys’ fees and costs, and deference is given to a district court’s j udgment on the matter, since the court is in a better position to assess the course of litigati on and quality of work.’” (second alteration in original) (quoting Gamble, Simmons & Co. v. Kerr-McGee Corp. , 175 F.3d 762, 773– 74 (10th Ci r. 1999))); Case , 157 F.3d at 1249 (“‘We cust omarily defer to the District Court’s judgment because an appellate court is not well suited to assess the course of litigation and the quality of counsel.’ The dist rict court ‘saw “the attorneys’ work first hand,”’ and ‘“has far better means of knowin g what is just and reasonable than an appellate court.”’” (first quoting Mares , 801 F.2d at 1200–01; and then quoting Poolaw v. City of Anadarko , 738 F.2d 364, 368 (10th Ci r. 1984); and then quoting Mares , 801 F.2d at 1201)); Brown v. Phillips Petroleum Co. , 838 F.2d 451, 453 (10th Cir. 1988) (“An award of attorneys’ fees is a matter uniquel y within the discretion of the trial judge who ‘has intimate knowledge of the efforts expended and the value of the services rendered.’ . . . [The district court’s] experience with and knowledge about the course of the litigation compels appellate court deference to [its] de termination in the absence of an abuse of Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8485 discretion.” (quoting United States v. Anglin & Stevenson , 145 F.2d 622, 630 (10th Cir. 1944))). In deferring to the district court’s deci sion-making, we recognize that they “need not, and indeed should not, beco me green-eyeshade accountants.” Fox v. Vice , 563 U.S. 826, 838 (2011). Rather than “achieve au diting perfection,” a tria l court need only “do rough justice” in determining a fee award. Id. Thus, “[w]e can hardly think of a sphere of judicial decisionmaking in which appellate micromanagem ent has less to recommend it.” Id. Accordingly, “we have long understood [our abuse-of-discretion standard] to mean that we will reverse a district court’s determination only if the court exceeded the bounds of the rationally available choices gi ven the facts and the applicable law in the case at hand.” Big Sky Network Can., Ltd. v. Sichuan Provincial Gov’t , 533 F.3d 1183, 1186 (10th Cir. 2008); see also Latham v. First Marine Ins. Co. , 16 F. App’x 834, 837 (10th Cir. 2001) (unpublished) (“Under the abuse of discretion standard, our task is not to independently assess the merits of each atto rney’s performance and fine-tune individual fee awards. Instead, our job is to determine whether the district court ‘made a clear error of judgment or exceeded the bounds of pe rmissible choice in the circumstances.’” (quoting Cummins v. Campbell , 44 F.3d 847, 854 (10th Cir. 19 94))). “That is to say, we recognize that in many cases there will not necessarily be a single right answer, but a range of possible outcomes the facts and law at issue can fairly support.” Big Sky Network , 533 F.3d at 1186. So, “r ather than pick and choose among them ourselves, we will defer to the district court’s judgment so long as it falls within the realm of these rationally available choices.” Id. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8586 In the attorneys’ fee c ontext, this generally mean s “we consider whether the district court’s determination appears reasonable in light of the complexity of the case, the number of strategies pursued, and the responses necessitated by the other party’s maneuvering,” but we “do not require the distri ct court to identify and justify every hour allowed or disallowed.” Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 863, 873 (10th Cir. 2018). Even if we find a legal error, we w ill only reverse and remand if the error prejudiced the party’s substantial rights. 33 See Polys v. Trans-Colo. Airlines, Inc. , 941 F.2d 1404, 1407 (10th Cir. 1 991) (applying the harmless erro r measurement to the abuse of discretion standard where district court excluded evidence from trial); United States v. Wright , 826 F.2d 938, 943 (1 0th Cir. 1987) (“An abuse of discretion[] does not require reversal if that abuse amounted to harmless error.”); see also McInnis , 458 F.3d at 1142 (“Even assuming the district court abused its discretion in excluding evidence, we must also determine whether the exclusion was ha rmless error because ‘we will not set aside a jury verdict unless the error pr ejudicially affects a substantial right of a party.’” (quoting Praseuth v. R ubbermaid, Inc. , 406 F.3d 1245, 1253 (10th Cir. 2005))); McCombs v. Meijer , Inc., 395 F.3d 346, 358–60 (6th Cir. 2 005) (explaining that “[w]e review an award of attorneys’ fees under the same standard as evidentiary determinations and will

33 “An error affecting a substantial right of a party is an error which had a ‘substantial influence’ or which leaves one in ‘grave doubt’ as to whether it had such an effect on the outcome.” McInnis , 458 F.3d at 1142 (quoting United States v. Sarracino , 340 F.3d 1148, 1171 (10th Cir. 2003)). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8687 therefore ‘usually sustain a district court’s aw ard and division of attorneys’ fees absent an abuse of discretion’” and stating, in a separate section, that we “should only reverse when ‘such abuse of discretion has caused more th an harmless error’” (emphasis added) (first quoting Dean v. Holiday Inns, Inc. , 860 F.2d 670, 672 (6th Cir. 1988); and then quoting Cooley v. Carmike Cinemas, Inc. , 25 F.3d 1325, 1330 (6th Cir. 1994))). That is, courts only reverse and remand in circumstances where they cannot conclude that the error was harmless. See Pinkham v. Camex, Inc. , 84 F.3d 292, 294–95 (8th Cir. 1996) (noting that the district court’ s incorrect inclusion of certain expenses in the overall attorneys’ fees award under 28 U. S.C. § 1920(4) was harmless error because those expenses could nevert heless have been included and awarded as reasonable attorneys’ fees); Johnson v. NPAS Sols., LLC , 975 F.3d 1244, 1253–54 (11th Cir. 2020) (concurring with Keil v. Lopez , 862 F.3d 685 (8th Cir. 2017 ), and applying harmless error doctrine to a district court’s Rule 23(h) error initially deemed to be an abuse of discretion); Keil , 862 F.3d at 705 (as to a Rule 23(h) vi olation, concluding that “the error is harmless because there is no reasonable prob ability that it affected the outcome of the proceeding”); see also United States v. Resendiz-Patino , 420 F.3d 1177, 1181 (10th Cir. 2005) (“A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect.” (quoting United States v. Jones , 44 F.3d 860, 873 (10th Cir. 1995))).
C. Waiver and Forfeiture Framework In this case, several of the appellants repeatedly missed oppo rtunities to object or, in some instances, unambiguou sly declined to object. Elsewhere, several of the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8788 appellants failed to raise or adequately pr esent arguments in their opening briefs. Whether achieved by neglect or design, thes e issues implicate our preservation doctrines. From a ten-thousand-foot view, there are two species of preservation issues that arise from a litigant’s conduct in the trial court: forfeiture and waiver. Typically, the former is thought of as the product of in advertence or ignorance of a legal issue. See,

e.g. , Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011) (explaining that “if the theory simply wa sn’t raised before the district c ourt, we usually hold it forfeited”); United States v. Zubia-Torres , 550 F.3d 1202, 1205 (10th Cir. 2008) (“[F]orfeiture comes about through neglect.” (quoting United States v. Carrasco-Salazar , 494 F.3d 1270, 1272 (10th Cir. 2007))); Carrasco-Salazar , 494 F.3d at 1272 (noti ng that “forfeiture is the failure to make the timely assertion of a right” (quoting United States v. Olano , 507 U.S. 725, 733 (1993))). Meanwhile, the latter (i.e., waiver) is viewed as the product of intentional conduct—with the party charged with knowledge or awareness of the legal issue later raised on appeal. See, e.g. , United States v. McGehee , 672 F.3d 860, 873 (10th Cir. 2012) (“We typically find waiver [as opposed to fo rfeiture] in cases where a party has invited the error that it now seeks to ch allenge, or where a party attemp ts to reassert an argument that it previously raised and abandoned below .” (alteration and emphasis in original) (quoting Zubia-Torres , 550 F.3d at 1205)); Carrasco-Salazar , 494 F.3d at 1273 (“There can be no clearer ‘intentional relinquishme nt or abandonment of a known right’ than when the court brings the defe ndant’s prior objection to his attention, asks whether it has Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8889 been resolved, and the defend ant affirmatively indicates th at it has.” (citation omitted) (quoting Olano , 507 U.S. at 733)). Ordinarily, a litigant who has forfeited an is sue before the district court may only secure review under “our rigorous plain-error test.” United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019); see, e.g. , United States v. Ibarra-Diaz , 805 F.3d 908, 916 (10th Cir. 2015) (“We generally review an asse rted ground for reversal that a party fails to present in the district court under th e ‘rigorous plain-error standard.’” (quoting United States v. Cooper , 654 F.3d 1104, 1117 (10th Cir. 2011))); United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 2003 ) (“Under this standard, [the litigant] ‘must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies thes e criteria, this Court may exercise discretion to correct the error if it seriously affects th e fairness, integrity, or public reputation of judicial proceedings.’” (quoting United States v. Scull, 321 F.3d 1270, 1277 (10th Cir. 2003))). But the consequences of waiver are typically even more severe: when a litigant has “waived a right,” the litigant is “not entitled to appellate relief.” United States v. Teague , 443 F.3d 1310, 1314 (10th Cir. 2006) (emphasis omitted); see also United States v. Egli , 13 F.4th 1139, 1144 (10th Ci r. 2021) (“[W]aiver is a hars her doctrine: a party that has waived an issue is precluded en tirely from appellate relief.”). Notably, our precedent establishes that where a litigant forfeite d a legal issue in the trial court and, at no point on appeal, in vokes and advocates for the issue under our plain error rubric, the litigant “effe ctively waive[s]” the issue. Fish v. Kobach , 840 F.3d 710, 729–30 (10th Cir. 2016). That is, th e litigant must face the more severe Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 8990 consequences of an outright waiver—they lose their right to any review at all. S ee Rocky Mountain Wild, Inc. v. U.S. Forest Serv. , 56 F.4th 913, 92 6 (10th Cir. 2022) (declining to consider an issue where litigant “waived it by not arguing for plain-error review after forfeiting it”); Richison , 634 F.3d at 1131 (“[T]he failure to argue for plain error and its application on appeal . . . sure ly marks the end of the road for an argument for reversal not first presented to the district court.”). While our discussion of our preservati on doctrine has thus far centered on a litigant’s conduct in district c ourt, one also may waive appellate review of an issue by not arguing it—or arguing it in an inadequa te manner—in one’s opening brief. See Sawyers
v. Norton , 962 F.3d 1270, 1286 (10th Cir. 2020) (concluding that appellants “waived an argument” “[d]ue to their inadequate briefing”); Bishop v. Smith , 760 F.3d 1070, 1095 (10th Cir. 2014) (“Waiver through appellate -briefing omission . . . [is an] admittedly distinct failure[] of preservation.”); Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or waived.” (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997))); United States v. Walker , 918 F.3d 1134, 1151 (1 0th Cir. 2019) (“This briefing-waiver rule applies equally to argume nts that are ‘inadequately presented’ in an opening brief[,]” including those presented “in a perfunctory manner.” (first quoting
Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007); and then quoting United
States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004))); Leffler , 942 F.3d at 1197 Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9091 (noting that we typically “do not consider ar guments made for the first time on appeal in an appellant’s reply brief and deem those arguments waived”). 34 Our preservation rules thus operate as “part of the ‘winnowing process’ of litigation that permits a court to ‘na rrow what remains to be decided.’” Walker , 918 F.3d at 1151 (quoting Exxon Shipping Co. v. Baker , 554 U.S. 471, 487 n.6 (2008)). In that vein—and because the Court of Appeals is not a “‘second-shot’ forum . . . where secondary, back-up theories may be mounte d for the first time”—they promote fairness in the administration of justice. Tele-Commc’ns., Inc. v. Comm’r , 104 F.3d 1229, 1233 (10th Cir. 1997); see also 9B Charles Alan Wright & Arthur R. Miller, F EDERAL

34 To be sure, we have sometimes i nvoked the language of forfeiture to describe the loss of the right to appellate re view resulting from inadequate briefing of an argument. See, e.g. , Kitchen v. Herbert , 755 F.3d 1193, 1208 (1 0th Cir. 2014) (noting that the “omission of an i ssue in an opening brief ge nerally forfeits appellate consideration of that issue” (quoting Bronson , 500 F.3d at 1104)); Bronson , 500 F.3d at 1104 (same). However, as we have recogn ized before, our use of the terms “waiver” and “forfeiture” and linguistic variants ther eof have sometimes suffered from a lack of precision. See Richison , 634 F.3d at 1128 (“[A]s we’ve noted previously, this court’s cases haven’t always been so precise in di stinguishing between waiver and forfeiture.”); see also Zubia-Torres , 550 F.3d at 1205 (noting that “the re is some uncertainty in our cases regarding the difference between waiv er and forfeiture”). However, we have consistently applied the consequences associated with waiver—i .e., the loss of the right to any review at all—in instances where appellants have either omitted arguments or presented them inadequately in their opening briefs. See Strain v. Regalado , 977 F.3d 984, 995 (10th Cir. 2020) (declining to cons ider an appellant’s “conclusory” argument and deeming it “waived”); Sawyers , 962 F.3d at 1286 (“Due to their inadequate briefing, the [appellants] have waived an argume nt that the district court erred.”); Walker , 918 F.3d at 1151 (concluding that the govern ment “waived its challenge . . . through inadequate briefing” and declining to exercise review over its argument). This specific, briefing-waiver rule—like all of our preser vation rules—“protects us from issuing ‘an improvident or ill-advised opinion’ because we did not have the benef it of the adversarial process.” Leffler , 942 F.3d at 1197–98 (quoting Hill v. Kemp , 478 F.3d 1236, 1251 (10th Cir. 2007)). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9192 P RACTICE & P ROCEDURE § 2472 (3d ed.), Westlaw (databas e updated April 2022) (noting that preservation doctrines ensure “the or derly administration of civil justice”). These virtues notwithstanding, our preservation doctrines function not as absolute constraints on our power to review but, ra ther, more like prudential norms. That is, “whether issues should be deemed wa ived is a matter of discretion.” Walker , 918 F.3d at 1153; see Abernathy v. Wandes , 713 F.3d 538, 552 (10th Cir. 2013) (“[T]he decision regarding what issues are appropriate to en tertain on appeal in instances of lack of preservation is discretionary.”). We are espe cially disinclined, however, to exercise our discretion in favor of review w ith respect to waived issues of a constitutional stature, as “[i]t is a well-established principle governin g the prudent exercise of th[e] [c]ourt’s jurisdiction that normally the [c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Nw. Austin Mun. Util. Dist. No. One v. Holder , 557 U.S. 193, 205 (2009) (firs t alteration in original) (quoting Escambia Cnty. v. McMillan , 466 U.S. 48, 51 (1984)).
D. Kansas Appellants Kansas Appellants target the Kansas district court’s December 31, 2018, Fee Allocation Order and March 20 19 Kansas Pool Allocation Order. They assert three issues on appeal: (1) “Did the [Kansas] district court err by abrogating [Kansas Appellants’] contingent-fee contracts without ensuring that they will receive equivalent compensation—or at least their lodestars—from the $503.33 million fee award?” Ka n. Aplts.’ Opening Br. at 3–4. (2) “Did the [Kansas] district cour t err by arbitrarily awarding certain counsel lodestar multipliers of three or more in this megafund case, at Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9293 the expense of individually reta ined counsel—including [Kansas Appellants]—who received but a fraction of their lodestars?” Id. at 5. (3) “Did the [Kansas] district cour t abuse its discretion by implementing a[] . . . three-court four-pool scheme of allocating attorneys’ fees that has resulted in an inequitable fee allocation with insufficient funds allocated to the IRPA Pool?” Id. at 4. We address each stated issue below.
1. Effective Waiver As a preliminary matter, certain of Ka nsas Appellants’ arguments are likely effectively waived by Kansas Appellants’ forfeiture at the trial-court level and subsequent failure to argue plain error before us. See Richison , 634 F.3d at 1131 (“[T]he failure to argue for plain error and its applicat ion on appeal . . . su rely marks the end of the road for an argument for reversal not first presented to the district court.”). Specifically, Kansas Appellants likely effectivel y waived their argument that the district court erred by abrogating thei r contingent-fee contracts. Moreover, insofar as Toups/Coffman argues that th e IRPA pool, itself, was underf unded, those arguments are also likely effectively waived. First, recall that the Kansas district court issued the follo wing pronouncements when largely adopting the Kansas Specia l Master’s November 2018 Fee Allocation
R&R: The Court agrees that an award of fees from th e settlement fund to both attorneys who performed common bene fit work and attorneys who filed individual cases is permitted under Tenth Circuit law. No attorney has argued, either in applying for fees or in objecting to the [November 2018 Fee Allocation] R&R, that the Court ma y not adopt such an approach. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9394 The [Kansas] [S]pecial [M]a ster also recommends that the Court effectively modify individual contingent fee cont racts relating to this litigation to limit any contingent recovery by attorneys to the fees awarded and allocated by the Court in this order. After a thor ough discussion of the law, the [Kansas Special] [M]aster concludes that the Co urt has the authority to impose such a limitation. Significantly, although Wa tts Guerra and a few other attorney applicants questioned whether the Court ha s such authority in their briefs in support of their fee applications, no attorney has objected to this conclusion in the [November 2018 Fee Allocation] R&R. Joint App., Vol. 23, at 5352–53 (emphases added) (footnote omitted) (citation omitted); see also id. at 5353 n.3 (noting that Wa tts Guerra, in a single footnote, took issue with the Kansas Special Master’s “conclusion that federal law governs whether the Court may exercise its inherent authority to modify co ntingent fee contracts” but that it did not “directly argue in the objection . . . that th[e ] Court lack[ed] the necessary authority”). As the above-quoted portion of the Kans as district court’s December 31, 2019, Fee Allocation Order reflects, neither of the Kans as Appellants took di rect issue with the Kansas Special Master’s conclusion that th e district court possessed the authority to modify the contingent fee contracts. For its part, Hossley-Embry e xplicitly conceded that courts “have given themselves the authorit y to change the terms of contingency fee agreements” and argued on ly that they “should no t do so lightly, or on an arbitrary basis.” Id. , Vol. 21, at 4877. And Toups/Coffman limite d its objections to the district court’s decision to disburse fee awards using a two- stage approach, wherei n funds are allocated to the specific pools and then disbursed to i ndividual lawyers and law firms, as opposed to the “single-stage approach” endorsed by T oups/Coffman that would allocate funds to pools only “after the claimants’ recoveries are determined.” Id. , Vol. 23, at 5358. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9495 Regarding the Kansas district court’ s overall allocation to the IRPA pool, Toups/Coffman “d[id] not take issue with any other recommendation” in the November 2018 Fee Allocation R&R, apparently because it “c[ould] [not] know whether it objects to its ultimate award of fees until th at award has been determined.” Id. at 5359 n.7. Later, Toups/Coffman explicitly disclaimed any objection regarding “the amount of money that [the Kansas Special Master] put in all three of the jurisdictions”—even though the allocations to specific pools conceivably co uld bear on the amount of money Toups/Coffman could recover from the IR PA pool—and even commended her for “d[oing] a very good job.” Id. at 5283:16–19 (Tr. of Att’ y Fee Allocation Hr’g, dated Dec. 17, 2018). It seems likely that Kansas Appellants did not fully appreciate their objection opportunities. 35 And, because neglect more appr opriately implicates our forfeiture doctrine, we look to see whether they argued for plain error. See Richison , 634 F.3d at 1131. They did not. See generally Kan. Aplts.’ Opening Br.; Kan. Aplts.’ Reply Br. Generally, that would be “the end of the ro ad” and we would decline to review their

35 That said, it is not lost on us that Kansas Appe llants could have intentionally decided not to press certain argum ents before the district court—especially as they relate to the court’s authority to modify contingent-fee agreements, employ common fund doctrine principles, and alloca te nearly 90% of f unds to the common benefit pools—because they were either conten t to have other firms do the work or hoped the allocation process would result in a more favorable recovery. See Egli , 13 F.4th at 1144 (noting that waive r-through-abandonment “occurs when a party deliberately considers an issue and makes an inte ntional decision to forgo it” (quoting United States v. Malone , 937 F.3d 1325, 1327 (10th Cir. 2019))); see also Freytag v. Comm’r , 501 U.S. 868, 895 (1991) (Scalia, J., concurring) (dis cussing the “strategic” reasons a party might “pursue a certain course” and later claim error). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9596 arguments. See Richison , 634 F.3d at 1131. Neverthe less, in an exercise of our discretion, we elect not to rest our decision as to these arguments exclusively on this preservation ground. See Walker , 918 F.3d at 1153 (noting th at “whether issues should be deemed waived is a matter of discretion”).
2. The Contingent-Fee Contracts On the merits, then, Kansas Appellants firs t contend that the Kansas district court erred in abrogating their “valid and enforceab le attorney-client contingent-fee contracts without first inquiring into whether their specific terms were unreasonable . . . or ensuring that individual plaintiffs’ counsel received equivalent compensation, or at least their lodestars.” Kan. Aplts.’ Opening Br. at 36; see also Toups/Coffman Suppl. Br. at 2 (arguing that the district court “improperl y abrogat[ed] Toups/Coffman’s contingent-fee client contracts”). 36 We conclude, however, that the distri ct court’s inherent power to review contingent-fee contracts—together with both Rule 23(h) of the Federal Rules of Civil Procedure and the Settlement—v ested the court with ample authority to modify the contingent-fee contracts at issue here. Because the district court ex ercised that authority reasonably, we affirm.

a. The Nature and Scope of the Distri ct Court’s Authority to Modify Contingent-Fee Contracts in the Class Action Context

36 In its supplemental briefing, Hossley -Embry “adopt[ed] and incorporate[d] by reference” Toups/Coffman’s supplemental brief. Hossley -Embry Suppl. Br. at 2. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9697 We begin our analysis with whether the district court had inherent authority to modify the contingent-fee contracts at issu e here. Our caselaw regarding the court’s authority to review and modify contingent-fe e agreements has developed piecemeal, but it nevertheless confirms the district court’s approach. See Garrick v. Weaver , 888 F.2d 687, 690 (10th Cir. 1989); Cooper v. Singer , 719 F.2d 1496, 1505 (10th Cir. 1983), abrogated on other grounds by Venegas v. Mitchell , 495 U.S. 82 (1990).
In Cooper , we explained that while “[c]ourts can open their doors to the public, . . . they must rely on lawyers to guide th e litigant through the passageways.” 719 F.2d at 1505. Given that some “self-serving lawy er[s] may ignore the best interests of . . . [their] clients,” we recognized that courts unmistakably “retain supervisory power over the attorney-client relationship.” Id. Because “fees”—including “contingent fee arrangements”—“are central to that relationshi p,” our supervisory power extends to such fees and agreements. Id. With this background in mind, we confirmed in Garrick that “federal court[s] . . . have inherent power to review attorneys’ fees.” 888 F.2d at 690 (citing Rosquist v. Soo Line R.R. , 692 F.2d 1107, 1111 (7th Cir. 1982)). This basic premise is so uncontroversial that our sister circuits considering the question uniformly agree that the district court retains such inherent power. See Farmington Dowel Prods. Co. v. Forster Mfg. Co. , 421 F.2d 61, 87–88 (1st Cir. 1969) (acknowledging that courts have the power to “modify” fee arrangements); In re Goldstein , 430 F.3d 106, 110 (2d Cir. 2005) (noting that federal co urts have “the right to inquire into fee arrangements . . . to protect the client from excessive fees” and “may order attorneys to return fees the client ha s paid pursuant to a contract” (omission in Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9798 original) (first quoting In re Michaelson , 511 F.2d 882, 888 (9th Cir. 1975); and then quoting In re Austrian & German Bank Holocaust Litig. , 317 F.3d 91, 98–99 (2d Cir. 2003))); Schlesinger v. Teitelbaum , 475 F.2d 137, 141 ( 3d Cir. 1973) (“[I]n its supervisory power over the members of its bar, a court has jurisdiction of certain activities of such members, including the charges of contingent fees.”); In re Abrams & Abrams, P.A. , 605 F.3d 238, 243 (4th Cir. 2010) (“ [T]he district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in ca ses before them is well-established.” (quoting Allen v. United States , 606 F.2d 432, 435 (4th Cir. 1979))); Karim v. Finch Shipping Co. Ltd. , 374 F.3d 302, 309 (5th Ci r. 2004) (noting that the court’s power “to reform contingent fe e contracts” is “well-recognized”); Krause v. Rhodes , 640 F.2d 214, 218 (6th Cir. 1981) (noting that because a “federal district judge has broad equity power to supervise the collec tion of attorneys’ fees under contingent fee contracts. . . . an attorney’s right to contract for a contingent fee is not completely beyond judicial control”); Kalyawongsa v. Moffett , 105 F.3d 283, 286 (6th Cir. 1997) (noting that contingent-fee contracts “are especially deserving of judicial supervision”); Int’l Travel Arrangers, Inc. v. W. Airlines, Inc. , 623 F.2d 1255, 1277 (8th Cir. 1980) (“The court has the power and the responsibility to moni tor contingency fee agreements for reasonableness.”); Boatright ex rel. Boatright v. R. J. Cormon R.R. Co./Material Sales , 244 F. App’x 312, 316 (11th Cir. 2007) (per curiam) (unpublished) (holding that “[t]he decision to reduce the continge ncy-fee percentage was well w ithin the district court’s discretion”); Hoffert v. Gen. Motors Corp. , 656 F.2d 161, 165 (5th Cir. Unit A Sept. 1981) (“[T]he district judge has broad equ ity power to supervise the collection of Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 9899 attorneys’ fees under [contingency] fee arrangements.”); accord 23 W ILLISTON ON C ONTRACTS § 62:9 (4th ed.), Westlaw (database updated May 2022) (“While a greater fee may often be justified in contingent fe e cases, courts will closely scrutinize these arrangements, due to the special nature of the contract, which gi ves an attorney an interest in the outcome of the litigation an d which is very susceptible to improper influence and duress.”). Indeed, as particularly relevant here, one commentator addressed the matter this way: “Because courts must exercise their inde pendent discretion in making fee awards in common-fund cases, individual contingent-fee agr eements that class representatives have entered into are not controlling on the court’s de termination of fees for the class recovery. Otherwise, the potential for abuse c ould be great.” 1 Alba Conte, A TTORNEY F EE A WARDS § 2:11 (3d ed.), Westlaw (database updated June 2022); see id. at n.1 (“In class action fee proceedings, courts may determine reasonable fees and ha ve power to modify contingent-fee contracts when necessa ry to avoid excessive fees.”); see also 1 Robert L. Rossi, A TTORNEYS ’ FEES § 7:9 (3d ed.), Westlaw (database updated June 2022) ( noting that, where the court “use[s] the percentage-o f-the-fund method[,] . . . the court should not simply apply the contingent fee percentage . . . since the percentage of a contingent fee in the contract between an attorney and the attorney’s client is not controlling in determining a reasonable fee in a common fund case”). To be sure, in Sears v. Atchison, Topeka & Santa Fe Railway Co. , 779 F.2d 1450 (10th Cir. 1985), we declined to “consider fo r the first time contentions challenging the reasonableness of the contingent fees set fo rth in the contracts,” where there was “no Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 99100 evidence in the record. . . that the contingent fee contracts at issue were entered into other than by arms length, honest dealings” an d “freely” and “knowi ngly” by parties that “agreed that the contingent fees were reasonable.” Id. at 1452. But, while Kansas Appellants are keen to emphasize that Sears resulted in a remand to the district court, see id. at 1452–56, we think their reliance on it is misguided. In particular, Sears does not squarely define the boundaries of the district court’s authority to review and modify contingent-fee contracts in a case like this one—that is, a case involving a common fund that was incrementally resolved in 2018 and thereafter.
Sears involved fee shifting under 42 U.S.C. § 1988, rather than a fee allocation from a common fund. See id. at 1452. And, importantly, the Sears court noted from the outset that “[t]he sole issue presented by this appeal is whether the district court erred, based on the facts in this record, in applying [a 1983] en banc opinion of this court . . . retrospectively so as to abrogate contr actual fee agreements entered into between appellant [attorney] and twenty-two (22) clie nts in 1972 prior to initiation of litigation which ultimately resulted in a class action recovery.” Id. at 1450. We assumed that application of the en banc deci sion “would require the reduc tion of the award to [counsel] from the agreed-to contingent fee percentage s contained in the 22 contracts with his clients to the fees determined to be reasona ble and allowable in the class action as found by the district court.” Id. at 1453. Notably, we concluded that the en banc case “was a statement of new law in this circuit” and that it “does not apply retrospectively.” Id. In other words, the legal regime under which counsel secured a remand in Sears to claim the fees prescribed in his contingent-fee contr acts was one that existe d prior to 1983—the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 100101 year of the en banc case. Theref ore, Kansas Appellants’ reliance on Sears in challenging the Kansas district court’s ruling in 2018 strikes us as misguided: Sears did not involve a common fund, and its holding rested on a lega l regime that had been superseded many years before the Kansas di strict court ruled here. See id. at 1453. 37 In sum, we think the distri ct court rightfully invoked its inherent power to review the contingent-fee contracts. However, there are two additional sources of authority that support its decision. This case involves a fee allocation from a common fund created through a class action settlement under Rule 23(h) of the Federal Rules of Civil Procedure. As we explained supra , Rule 23(h) provides that “[i]n a certified class action, the court may award reasonable attorney’s fees . . . that are authorized by law or by the parties’ agreement.” F ED

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. P. 23(h) (emphases added). The committee notes elucidate that “[a]ctive judi cial involvement in measuring fee awards is singularly important to the proper operation of the class- action process” and instruct district courts to “ensure that the amount and mode of pa yment of attorney fees are fair and proper

37 Kansas Appellants also rely on a case that we cited in Sears —specifically, the Third Circuit’s decision in Dunn v. H.K. Porter Co., Inc. , 602 F.2d 1105 (3d Cir. 1979). See Sears , 779 F.2d at 1453. However, the Th ird Circuit there “h[e]ld that the district court, both in its supervisory author ity over those practicing before it and as part of its duties imposed by [Rule 23(e) of the Fede ral Rules of Civil Procedure] . . . ha[s] the authority [s]ua sponte to . . . set aside con tingent fee agreements when it concludes they would yield unreasonable fees.” Dunn , 602 F.2d at 1114. Indeed, according to the Third Circuit, a district court’s obligation to “revie w . . . fee arrangement[s]” is greater when “a contingent fee contract is to be satisfied from a settlement fund approved by the [court] pursuant to F ED

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. P. 23(e)”—as is the case here—a s Rule 23 “imposes upon [the district court] a responsibility to protect th e interests of the class members from abuse.” Id. at 1109. Plainly, then, insofar as Kansas Appe llants argue that the district court simply lacked the authority to review and modify the contingent fee contracts, Dunn does not offer the help that they think it does. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 101102 whether the fees come from a common fund or are otherwise paid.” F ED

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. P. 23(h) advisory committee’s notes to 2003 amend. Fo r that reason, the court can “adjust[] . . . the class fee award” to achieve its “objective . . . [of] ensur[ing] an over all fee that is fair for counsel and equitable”—ev en where “individual fee agreements between class counsel and class members . . . have provis ions inconsistent with” that objective. Id. Accordingly, Rule 23(h) provided authority fo r the Kansas district court’s action with respect to the contingent-fee contracts here. Finally, the Settlement itself vested the dist rict court with authority to review and determine the enforceability of the contingent-fee contracts. As the Kansas Special Master observed, the Settlement “recognize[d] that the enforceability of any attorneys’ fee contract affecting a Class Member [was ] subject to judicial review” and further offered that the judiciary “shall have exclusiv e jurisdiction to decide the enforceability of any lien,” including “any lien for attorneys’ f ees.” Joint App., Vol. 21, at 4795 (quoting Joint App., Vol. 5, at 1105 ). Moreover, the Settlement expr essly “supersede[d] all prior proposals, negotiations, agreemen ts, and understandings relati ng to [its] subject matter,” including issues of attorneys’ fees. Id. at 4802 (quoting Joint App., Vol. 5 at 1106.) The Kansas district court agreed, concluding th at its authority to cap the contingent-fee awards also arose from the Settlement. 38

38 Notably, the Kansas district court ma de clear that individual plaintiffs who wanted to opt out of the class action could do so. See Joint App., Vol. 5, at 1214–15. The district court even acknowl edged that “economic incentiv es exist for counsel who are not part of the leadership to procure opt ou ts . . . to pursue a course in which those counsel might be better s ituated to earn a fee.” Id . at 1214. But, because their clients did Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 102103 This weighty, tripartite authority notw ithstanding, Kansas Appellants argue that the Supreme Court’s decision in U.S. Airways, Inc. v. McCutchen , 569 U.S. 88 (2013) abrogated the district court’s ability to cap contingent-fee contracts in the class action settlement context. We are unpersuaded. McCutchen , in relevant part, determined whethe r certain equitable defenses rooted in the common fund doctrine could be asserted to “overrid e” the express terms of an Employee Retirement Income Security Act (ERISA) contract. 569 U.S. at 94. Respondent James McCutchen par ticipated in a health benefits plan established by his employer, U.S. Airways, under ERISA. See id. at 91. The express terms of the plan obliged U.S. Airways to pay any medical ex pense McCutchen incurred as a result of a third party’s actions. See id. In turn, the plan entitled U.S. Airways to reimbursement if McCutchen later secured a financial recovery. See id. When McCutchen suffered a serious accident at the hands of a third party, his ERISA plan through U.S. Airways paid for certain medical expenses. See id. at 92. However, McCutc hen also sued the third party responsible for his injuries. See id. Limitations in the third party’s insurance coverage meant that McCutc hen could only recover $110, 000 of his accident-related damages, which ex ceeded $1 million. See id. After deducting attorney’s fees, McCutchen’s take-home award totaled only $66,000. See id. Then came U.S. Airways. Looking to th e terms of the ERISA plan, U.S. Airways demanded reimbursement for the money it pr eviously paid for McCutchen’s medical

not opt out, the Settlement, alo ng with equitable principles, provides the basic framework for their counsel’s attorneys’ fees. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 103104 expenses. See id. A subsection of ERISA authorized U.S. Airways to enforce the terms of the plan through an equitable action. See id. at 93. McCutchen, then, asked the court whether a plan participant may raise certain equitable defenses base d on principles of unjust enrichment—such as, in relevant part, “requiring the party seeking reimbursement to pay a share of the attorney’s fees incu rred in securing funds fro m the third party.” Id. at 91. Such a defense—which stemmed from the common fund doctrine—would have functioned to prevent U.S. Airways fro m “obtain[ing] [the] full benefit from [McCutchen’s] efforts without contributing . . . to [h is] litigation expenses.” Id. at 100 (omission in original) (emphasis added) (quoting Mills v. Elec. Auto-Lite Co. , 396 U.S. 375, 392 (1970)). The Supreme Court held, in relevant part, that the common fund doctrine could not “override the cl ear terms” of the contract. McCutchen , 569 U.S. at 91. Regarding this holding, the Court explai ned that “if the agreement governs, the agreement governs.” Id. at 99. So, because McCutchen and U.S. Airways entered a contract entitling the latter to reimbursement expenses, equitable ru les rooted in unjust enrichment, like the common fund doctrine, should no t operate to nullify that bargainedfor provision. See id. at 99–100. That was so, reasoned the Court, because “principles of unjust enrichment give way when a court enforces an equitable lien by agreement,” as “[t]he agreement itself becomes the me asure of the parties’ equities.” Id. at 100 (emphasis added). Put differently, “if a c ontract abrogates the common-fund doctrine, the insurer is not unjustly enriched by claiming the benefit of its bargain.” Id. Kansas Appellants liken their initial con tingent-fee contracts to the “equitable lien by agreement” at issue in McCutchen . Kan. Aplts.’ Opening Br. at 43. Those contracts, Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 104105 Kansas Appellants insist, governed, as “[n]ei ther a court’s ‘inherent authority,’ nor the application of more general common-fund pr inciples can override these contractual liens.” Id. at 42. Thus, invoking McCutchen , Kansas Appellants urge us to reverse with instructions to award them attorneys’ fe es consistent with their fee contracts. We find the comparison to McCutchen inapposite. First, assuming arguendo that their contingency-fee contracts make an equ itable assignment, Kansas Appellants are not attempting to enforce the lien of the contract s against the contract’s other signatories—a key facet of the Supreme Court’s analysis in McCutchen —because they are obtaining their fee awards as a product of the Syngent a class settlement. Pu t otherwise, whereas U.S. Airways sought to enforce a contract McCutchen signed, Kansas Appellants attempt to enforce a contingent-fee contr act entered into by their clients against other attorneys in the fee award pool who were ne ver party to those contracts. Kansas Appellants admitted as much during oral argument, stating that they “are not tr ying to enforce the contingency fee agreements against the[ir] clients,” i.e ., the actual parties to their fee contracts. 39 Oral Argument, No. 19-3008, at 3: 44–4:27 (10th Cir., dated Marc h 10, 2021). By instead attempting to “recover their Contract fees from Appellees”—who, it bears repeating, never signed a contingent-fee contract with them—Kansas Appellants turn McCutchen ’s logic on its head by suspending the equitabl e considerations animating the common fund doctrine even in the absence of an agreed-to equitable lie n. Toups/Coffm an Supp. Br.

39 As Joint Appellees point out, Kansas Appellants “fail to show that their fee contracts are anything but ‘sile nt on the allocation of attorn eys’ fees[]’ from an aggregate award, which is not surprising because the fe e award is being allocated between them and other attorneys who were not parties to t hose agreements.” Appellees’ Br. at 69–70. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 105106 at 9 n.8. McCutchen said exactly the oppo site: traditional equitable considerations give way when courts enforce an “agreement” or “contract,” because the agreement is the “measure of the parties’ equities.” 569 U.S. at 100. Where there is no governing contract—and how could there be when th e Appellees never signed a contingent-fee agreement with Kansas A ppellants—the courts may a pply equitable doctrines. See id.
at 98. Second, the contract at issue in McCutchen is akin to the standard commercial contract that demands judicial respect when freely entered into by the parties. But the Supreme Court, itself, has recognized that contingent-fee agreements trigger different considerations and can be “pro blematic, particularly when not exposed to court review.” Gisbrecht v. Barnhart , 535 U.S. 789, 803 (2002). In Gisbrecht , for instance, the Court acknowledged that courts test contingent -fee arrangements for “reasonableness” and “have appropriately reduced th e attorney’s recovery base d on the character of the representation and the results th e representative achieved.” Id. at 808. So, even if the contingent-fee contracts at issue in this case paralleled an ERISA contract, we would decline Kansas Appellant s’ invitation to read McCutchen ’s language—which did not address attorney contingent-fee contract s—in a way that conflicts with the Gisbrecht Court’s approval of judicial review. In sum, we have no tro uble concluding that the court possessed the requisite authority to review and modify the contingent-fe e contracts. In this case, that authority sprung from the district court’s inherent power to review the contingent-fee contracts, Rule 23, and the Settlement. That said, tho ugh we think the district court’s power to Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 106107 review and modify the contingent-fee contracts is particularly potent in this case, it is not without limit. Rule 23(h) emphasizes that fees must be reasonable. See F ED

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. P. 23(h) (“[T]he court may award reasonable attorney’s fees . . . .” (emphasis added)). So, if the contingent-fee contract is the be st measurement of reasonableness, abrogating the contract would be inconsiste nt with the district court’s duty to award reasonable fees.
b. The Effective 10% Cap Its authority to review and modify havi ng been firmly established, we now ask whether the Kansas district court abused its discretion by imposi ng a 10% cap on the contingent-fee contracts. Or, more precisely, we ask whether the dist rict court abused its discretion in concluding that the contingent -fee contracts were inappropriate yardsticks for a reasonable fee award. It did not. Drawing on the Kansas Special Master’s car eful factual analysis, the district court thoroughly supported its conclusion that modifying the contingent-fee contracts was necessary. The Kansas Special Master e xplained that the Syngenta class members— mostly farmers—were generally “[in]experien ced in the intricacies of class action and mass action litigation,” leaving them “poten tially vulnerable to overreaching . . . contingent fee agreements co mmitting a substantial portion of any recovery to lawyers who would do limited work and rely on th e work of other lawyers who will be compensated out of a common benefit fu nd.” Joint App., Vo l. 21, at 4794. Thus, overreaching contingent-fee agreements benef itting counsel who “did not provide service of any material value to the class,” id. , threatened the Plaintiffs ’ Settlement Negotiating Committee’s goal of ensuring that “similarly situated plaintiffs would receive similar Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 107108 compensation under the Settlement Agreemen t, and that individually represented plaintiffs would not receive a lower net reco very due to attorney s’ fee obligations,” id.
at 4795–96. Accordingly, the Settlement struck the delicate balance of curbing excessive contingent-fee awards while providing for “f air compensation” to attorneys representing individual clients. Id. To that end, the Kansas Special Master recommended that contingent-fee awards be capped at 10% of a client’s recovery. See id. at 4810. Though recognizing that this cap represented “a significant reduction from the typical 30–40% contingent fee” agreement, the Kansas Special Master though t the reduction reasonable given that most IRPA counsel “did little more than recruit clients and in some cases fill out PFSs.” 40 Id. By contrast, leadership lawyers in each juri sdiction performed the “vast majority of the work of litigating legal issues, taking fact and expert discovery, arguing motions, trying cases,” and pursuing settlement negotiations. Id. After conducting a de novo review, the Kansas district court adopted the Kansas Spec ial Master’s factual findings and agreed, in light of the IRPA attorneys’ relatively small “contribution to the ultimate recovery,” that the 10% cap on contingent fees “a ppropriately rewarded” counsel. Id. , Vol. 23, at 5361. In short, the district court found the 10% cap reasonable. See id. In sum, we hold that the district court’ s inherent authority, together with both Rule 23(h) of the Federal Rules of Civil Procedure and the Settle ment, empowered it to

40 The Kansas Special Master furthe r noted that IRPA counsel provided limited value in preparing claims for their cl ients “given the simplicity of the Claims Process”—an observation “confirm ed by the fact that the majo rity (52%) of Claims have been filed pro se .” Joint App., Vol. 21, at 4810. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 108109 modify contingent-fee contracts. Furthermore, in view of the district court’s careful consideration of the specific f acts in this case, we hold that it did not abuse its discretion in imposing a 10% cap on th e contingent-fee contracts at issue in this case.
3. The Lodestars and the IRPA Fee Allocation Kansas Appellants next home in on the disparity between their attorneys’ fee recovery and the recovery of the Kansas MD L Leadership. Upon observing that their fee award downwardly departs from their lodestars, Kansas Appellants argue that they should have received their full lodestars. They also claim that the Kansas district court erred in allocating a “paltry” 12% of the aggregate fee award—approximatel y $60 million—to the IRPA pool. Kan. Aplts.’ Opening Br. at 54. On the other end of the disparity, Kansas Appellants aver that the court erred in appr oving the Kansas MDL Leadership fee award, which reflected a lodestar multiplier of 3. Th ey similarly take issu e with the size of the Kansas MDL Leadership’s clas s-counsel fee award, alleging that the sizable award represents an abuse of discreti on and asking us to reverse. See id. at 57–61. Because these contentions dovetail with Kansas Ap pellants’ third question presented—whether the court arbitrarily allocated fees—we reso lve both question two and question three in this section. At bottom, Kansas Appellants take issue w ith (1) the secondary status the district court gave their lodestar figures and (2) the fa ctors the district cour t weighed in allocating fees among and within the pools. By impli cation, Kansas Appellants reject the district court’s use of the percentage-of-the-fund method to allocate fees, effectively arguing that the court was required to employ the lodestar method. Irrespective of which method the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 109110 court applied, Kansas Appellants secondarily ar gue that the court arbitrarily allocated the fees. Thus, resolution of these complaints tu rns on two related questions: whether the district court erred in applying a percentage-o f-the fund approach and, if not, whether the court otherwise allocated the aggregate f ee award arbitrarily and unreasonably among and within the pools.

a. The Percentage-of-the-Fund vs. Lodest ar Methods in the Class Action Context Arguing that their lodestar figure is pr esumptively reasonable, Kansas Appellants contend that they should have “receive[d] their respective lodestars.” Kan. Aplts.’ Opening Br. at 52–53. In that respect, Kansas Appellant s backhandedly argue that, as a rule, the district court erred in applying a percentage-of-the-fund me thod, rather than a lodestar method, in determining their fee award. We have already asked—and answered—“whether a fee award based on a percentage of a common fund . . . is per se unreasonable.” Brown , 838 F.2d at 454. It is

not. See id. (“We hold, therefore, that the award of attorneys’ fees on a percentage basis in a common fund case is not per se an abuse of discretion.”); accord Blum v. Stenson , 465 U.S. 886, 900 n.16 (1984) (noting that “under th e ‘common fund doctrine,’ . . . a reasonable fee is based on a perc entage of the fund bestowed on the class”). That is because the “award of attorneys’ fees is based on su bstantially different underlying purposes in a common fund case” th an in other kinds of cases, Brown , 838 F.2d at 454— such as those involving fee-shifting statutes, see Perdue v. Kenny A. ex rel. Winn , 559 Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 110111 U.S. 542, 551 (2010) (explaining that the lode star method accords with “the aim of feeshifting statutes”). Ordinarily, under the “American Rule,” prevailing litigants are responsible for paying their own attorneys’ fees. Hardt v. Reliance Stan dard Life Ins. Co. , 560 U.S. 242, 253 (2010). But the class action context offers an exception to this rule through the “common fund” doctrine. Boeing Co. v. Van Gemert , 444 U.S. 472, 478 (1980). In large class actions such as this, a relatively small ha ndful of plaintiffs bear the cost of suit. See Mills , 396 U.S. at 392. If those plaintiffs prevail, their su ccess benefits the entire class. Id. Were the American Rule to apply in this context, the named class plaintiffs would shoulder the costs of suit—in cluding attorneys’ fees—for th e entire class, even as the remainder of the class reaps the benefits of their labor. See Rosenbaum v. MacAllister , 64 F.3d 1439, 1444 (10th Cir. 1995). The comm on fund doctrine pr events such unjust enrichment by enabling class action attorneys to extract fees from the collective award, thereby “spread[ing] the costs [of suit] propor tionately among” the ascertainable class. Hall v. Cole , 412 U.S. 1, 5 (1973) (quoting Mills , 396 U.S. at 393–94); see also Boeing , 444 U.S. at 478 (noting the Court’s “cons istent[]” recognition th at the common fund entitles an attorney who recovers common, or collective, bene fits for persons other than herself or her client to a “reasonable . . . fee from the fund as a whole”); Chambers v. NASCO, Inc. , 501 U.S. 32, 45 (1991) ( noting that the common fund doctrine “derives not from a court’s power to control litigants, but from its historic equity jurisdiction, . . . and allows a court to award attorn ey’s fees to a party whose litig ation efforts directly benefit others”). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 111112 Similar equitable considerations, together with ethical concerns, permit courts to award fees on a percentage-of-t he-fund basis, as opposed to the lodestar method. See Gottlieb v. Barry , 43 F.3d 474, 482 (10th Cir. 1994) (recognizing that “[m]any courts have addressed the propriety of utilizing the percentage of th e fund instead of the lodestar in calculating attorneys’ fees in common fund cases”); Voulgaris v. Array Biopharma , Inc. , No. 22-1003, 2023 WL ---, Slip . Op. at 4 (10th Cir. Feb. 27, 2023) (recognizing that “[t]wo methods exist for dete rmining attorneys’ fee awards in common-fund class action cases[,]” including “the percentage-of-the fund method”). To be sure, the lodestar method “produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client w ho was billed by the hour in a comparable case .” 41 Perdue , 559 U.S. at 551 (sec ond emphasis added). But some courts have found that using the lodestar approach in common fund cases “encourages significant elements of ineffi ciency” because the method incentivizes attorneys to “spend as many hours as po ssible,” resulting in fewer settlements. Swedish Hosp. Corp. v. Shalala , 1 F.3d 1261, 1268 (D.C. Ci r. 1993). Moreover, unlike in traditional litigation, a common-fund beneficiar y is less incentivized to scrutinize her attorney’s lodestar-based fee petition because she is one of many receiving a small slice of the collective pie. Cf. Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs’ Attorney’s Role in Class Action and Deriva tive Litigation: Econ omic Analysis and

41 To the extent that Kansas Appellants argue that Perdue required the district court to apply the lodestar method, their argument is unavailing in this case, as Perdue was a fee-shifting case. See 559 U.S. at 546. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 112113 Recommendations for Reform , 58 U. C HI

. L. R EV . 1, 26 n.79 (1991) (discussing incentives to object). As well, and as this case illustrates, applying the lodestar method to a common fund case can fail to account for the productive quality of an attorney’s labor, that is, whether an attorney’s time meaningfully contributed to benefits conferred on the class. See generally Report of the Third Circuit Task Force, Court Awarded Att’y Fees , 108 F.R.D. 237, 265 (1986) (n oting that an attorney’s “contribution to a prompt or a delayed resolution of the action” is one factor to consider in awarding fees). In a common fund case, the fund, itself, is the meas ure of an attorney’s success. Thus, under the percentage-of-the-fund method, “inefficien tly expended hours on ly serve to reduce the per hour compensation of th e attorney expending them.” Swedish Hosp. , 1 F.3d
at 1269. Our decision in Gottlieb is instructive. There, mu ltiple shareholders filed suit against MiniScribe; the district court, howe ver, only certified one case to proceed as a class action. See Gottlieb , 43 F.3d at 481. On the eve of a non-class-action suit initiated by MiniScribe’s trustee, the partie s reached a global settlement. See id. The district court allocated $44 million of the $12 8 million fund to the one certified shareholder class. See id. The district court also awarded attorn eys’ fees but, in do ing so, rejected the percentage-of-the-fund method in favor of the lodestar method. See id. at 484–85. In reversing, we first acknowl edged that the settlement “created a ‘common fund’ from which the plaintiff class obtained a benefit” a nd, accordingly, “[a]ttorneys’ fees [were] appropriately awarded from that fund, on the theory ‘that persons who obtain the benefit of a lawsuit without contributing to its cost s are unjustly enriched at the successful Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 113114 litigant’s expense.’” Id. at 482 (quoting Boeing , 444 U.S. at 478). Faced with the question of whether the “proper methodolo gy for awarding attorneys’ fees out of a common fund” entailed a percentage-of-the-fun d approach or a lodestar analysis, we expressed a preference for the percentage-o f-the-fund approach where a special master made detailed factual findings in support of the approach. Id. at 482, 487–88; see also
Brown , 838 F.2d at 454 (“The Supreme Court . . . explicitly described a percentage calculation as a ‘reasonable fee’ in [common fund] cases.” (quoting Blum , 465 U.S. at 900 n.16)). However, because the touchstone of a fee award analysis is reasonableness, we do not require rigid adherence to either the per centage-of-the-fund or lodestar methods in the common fund context. See Gottlieb , 43 F.3d at 482–83. To illustrate reasonableness, district courts must “articulate spec ific reasons for [their] findings.” Uselton v. Com. Lovelace Motor Freight, Inc. , 9 F.3d 849, 853 (1 0th Cir. 1993). And, to guide those findings, we further require district cour ts to consider the factors outlined in Johnson , 488 F.2d at 717–19, regardle ss of which method is used. See Gottlieb , 43 F.3d at 483. Still, in keeping with ou r longstanding flexible postu re, we have acknowledged that the Johnson factors’ applicability and weight in “common fund situations w[ill] undoubtedly be different” than in statutory fee situations, Uselton , 9 F.3d at 853, a point that we expounded on in Brown : Although the Johnson factors are relevant in determining a reasonable fee in a common fund case, the inherent di fferences between statutory fee and common fund cases could justify a trial judge’s decision to assign different relative weights to those factors in the two types of cases. For example, the first factor—time and labor required—is an essential touchstone for recovery Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 114115 in a statutory fee case where reasonablene ss is measured in part by reference to the lodestar analysis. In a co mmon fund case, however, although time and labor required are appropriate considerations, the ninth Johnson factor—the amount involved and the results obt ained—may be give n greater weight when . . . the trial judge determines th at . . . the efforts of counsel were instrumental in realizing re covery on behalf of the clas s. . . . [R]arely are all of the Johnson factors applicable; this is pa rticularly so in a common fund situation. We hold here . . . that in awarding attorneys’ fees in a common fund case, the “time and labor involved ” factor need not be evaluated using the lodestar formulation when, in the ju dgment of the trial court, a reasonable fee is derived by giving gr eater weight to other factor s, the basis of which is clearly reflected in the record.
Brown , 838 F.2d at 456 (citati on and footnote omitted). Thus, we characterize this “percentage plus Johnson factors” framework as a “hybrid” approach to attorneys’ fees. See, e.g. , Chieftain Roya lty Co. v. Enervest Energy Institutional Fund XIII-A, L.P. , 888 F.3d 455, 459 (10th Cir. 2017) (“Our approach . . . ‘has been called a “hybrid” approach, combining the percen tage fee method with the specific factors traditionally used to calculate the lodestar [i.e., the Johnson factors].’” (quoting Gottlieb , 43 F.3d at 482–83)); Uselton , 9 F.3d at 853 (noting that we have “distinguished common fund cases from statut ory fee cases and recognized the propriety of awarding attorneys’ fees in the former on a percentage of the fund, rather than lodestar, basis”); accord Fresno Cnty. Emps.’ Ret. Ass’n v. Isaacson/Weaver Fam. Tr. , 925 F.3d 63, 68 (2d Cir. 2019) (“Under the common-fund doctrine, a district court may select ‘either the lodestar or percentage of the recovery methods’ to calculate fees. A common-fund-percentage fee must still be ev aluated for reasonableness, but may exceed the lodestar—i.e., it may be less than, equal to, or greater than the lodestar .” (emphasis added) (citations omitted) (quoting Goldberger v. Integrated Res., Inc. , 209 F.3d 43, 45 Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 115116 (2d Cir. 2000))). This hybrid ap proach, in turn, helps ensure that the percentage-of-thefund award remains reasonable.
b. Ensuring a Reason able Fee and the Johnson Factors Accordingly, when Kansas Appellants insist that their lodestar figure, as a categorical rule, reflects the “reasonable rate,” they are wrong. See Brown , 838 F.2d at 454 (“We hold, therefore, that the award of attorneys’ fees on a percentage basis in a common fund case is not per se an abuse of discretion.”). Still, as the foregoing discussion makes clear, applic ation of a percentage-of-th e-fund method does not automatically result in a reasona ble fee allocation. So, with the framework just described in mind, we ask whether the district court misapplied the Johnson factors or otherwise unreasonably allocated the aggregate fee awar d. We conclude that Kansas Appellants have failed to establish that the district court abused its discretion in allocating the aggregate attorneys’ fee award in the way the court did—among and within the four pools—which is all we ask under our de ferential abuse-of-discretion standard. See
Garrett v. McRee , 201 F.2d 250, 254 (10th Cir. 1953) (“[W]e certainly should not disturb the exercise of [the district court’s] discre tion as to apportionment [of an attorneys’ fee award] in the absen ce of clear abuse.”). It is readily apparent from the district court’s numerous allocation orders that it considered many of the Johnson factors—or at least their substance—along the way to the ultimate inquiry of its attorneys’ fee analysis: whether the fee is reasonable. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 116117 i. Allocations Between the Pools We turn to the allocations between the Kansas and IRPA pools; Kansas Appellants object to the disparity between the two. In view of the Johnson factors, the Kansas Special Master identified “[s]everal poi nts concerning this unique litigation and settlement [that] bear on . . . the . . . alloca tion considerations,” incl uding the considerable experience of lead plaintiffs’ counsel; substa ntively, the novelty of the claims counsel raised and the difficulty of the damages issues ; Syngenta’s aggressive, first-tier defense; the absence of government involvement and its role in increasing lead plaintiffs’ risk; lead plaintiffs’ counsels’ coordinated, effi cient litigation efforts; the “enormous amount of work” demanded by this case and the “h ard-fought settlement negotiations”; the “unprecedented” court decisions obtained; and the “extraordi nary” results. Joint App., Vol. 21, at 4783–84. These factors largely co rresponded to the twelve Johnson factors, albeit incompletely, and implicitly sh aped the Kansas Special Ma ster’s recommendation that 90% of the fee award be divided among the three common benefit pools and the remaining 10% be allocated to the IRPA pool. Of that 90% , the Kansas Special Master recommended that the court assign 50% of the award to the Kansas common benefit pool because the Kansas attorney s led the federal MDL, conducted “massive” discovery against Syngenta, and obtained significant rulings on complex legal issues, including issues that cleared the pa th for state court litigation. 42 Id. at 4818. Most significantly, the

42 As previously mentioned, the Kansas district court ultim ately reduced this 50% allocation to 49% to increase the IRPA pool allocation from 10% to 12%. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 117118 Kansas group obtained certifica tion of a nationwide class and tr ied their class litigation to a $217.7 million verdict that brou ght Syngenta to the settlement table. Moreover, one of the Kansas attorneys devoted significant time and effort to the settlement despite courting many other obligations. As the Kansas Special Master reasoned, wh ereas the “vast majority of the work of litigating legal issues, taking fact and expe rt discovery, arguing mo tions, trying cases, and settlement negotiation was done by the lead ership lawyers in each jurisdiction,” id. at 4810, the IRPAs conducted “limited work,” id. at 4809. In fact, the Kansas Special Master found that the IRPAs “did little more than recruit clients and in some cases fill out
PFSs.” Id. at 4810. Certainly, in assessing the IRPAs’ time and labor, the difficulty of their work, and the skill required to perform it, the Kansas Special Master’s discussion implicitly addressed several of the applicable Johnson factors. The Kansas district court agreed with these factual findings and additionally observed that the time and e xpense that IRPAs incurred in recruiting and communicating with clients, filling out forms, monitoring th e litigation, and the like did not contribute to the ultimate recovery. The district court also specifically found that the claims process with which many IRPAs assisted clients was “quite simple and streamlined, as evidenced by the fact that more than half of the claimants were not represented by individual counsel.” Id. , Vol. 23, at 5362. As the court saw it, the rub was that other counsel “relieved” the IRPAs from “having to do any work to advance th eir clients’ lawsuits or to add value to their claims.” Id. Regarding the weight to assi gn to the IRPAs’ contingentfee contracts, the district court explained, concerning Johnson ’s sixth factor, that a 10% Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 118119 cap was appropriate given the “particular facts” of this case. Id. ; see also Johnson , 488 F.2d at 718 (considering the presence of contingent-fee contracts in determining a fee award). Kansas Appellants insist that the first Johnson factor—time and labor—required the court to use their lodestars as a “starting point,” and othe rwise argue that the district court erred in again discountin g their contingent-fee contracts. Kan. Aplts.’ Opening Br. at 63–65. However, as we recognized in Brown , “the inherent differences between statutory fee and common fund cases could justify a trial judge’s decision to assign different relative weights” to certain of the Johnson factors. Brown , 838 F.2d at 456. Consistent with this observation, the district court’s decision to discount time that did not contribute to the ultimate recovery furt hered the common fund doctrine’s goal of preventing unjust enrichment. Cf. Swedish Hosp. , 1 F.3d at 1269 (“[T]he attorney inefficiently expending an excess amount of time . . . stand[s] to gain by that inefficiency if the awarding court does not ultimately recogn ize the inefficiency . . . .”). In the context of common funds, to otherwis e compensate an attorney fo r time that did not advance a collective benefit would allow that attorney to “obtain full benefit” from a productive party’s efforts, thereby “enrich[ing] [he r] . . . unjustly” at another’s expense. Mills , 396 U.S. at 392; see also McCutchen , 569 U.S. at 96, 105 (no ting that the common fund doctrine is “designed to prevent freeloading ” and, in this regard, discussing “[t]he rationale for the comm on-fund rule”). So, notwithstanding Kansas Appellants’ assertion to the contrary, the district court outlined why the IRPA allocation was generally reasonable under Johnson . The court’s Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 119120 ultimate rejection of the Kansas Special Ma ster’s 10% IRPA allocation recommendation and subsequent decision to increase the IRPA pool allocation by two percentage points to “achieve a likely effective contingent fee clos er to 10 percent,” unde rscores the district court’s considered judgment. 43 Joint App., Vol. 23, at 5366–67. We see nothing in the record to indicate that the district court failed to carefully consider the facts and applicable law in allocating 49% of the fee award to the Kansas pool and 12% to the IRPA pool. 44

43 Taking issue with the 12% IRPA allocation, which capped their contingent fees to 10%, Kansas Appellants cite a slew of cases where the district court awarded individual plaintiffs’ counsel 23–33.3% of their clients’ gross re coveries. But what Kansas Appellants fail to appreciate on appeal is that the district court is best positioned to judge the reasonableness of fee requests in each case. “We can ha rdly imagine a more futile and foolhardy ende avor than struggling to review ea ch district court’s degree of familiarity with a case to decide how much deference to grant its findings and conclusions.” Swedish Hosp. , 1 F.3d at 1272.

44 It is of no moment that the court’s analysis—all of which tracked several of the Johnson factors—did not explicitly invoke Johnson ; there is no talismanic incantation district courts must chant when considering the Johnson framework. See Law , 4 F. App’x at 752 (“Although the district court did not expressly address the [ Johnson ] factors, the hearing transcript demonstrates th at it considered fully the nature, extent, and value of appellant’s contributions to the u nderlying lawsuits, matters which include and define many of the Johnson factors.”). It is similarly inc onsequential, in this case, that the Kansas Special Master—and, later, the distri ct court—failed to consider, in substance, each and every one of the Johnson factors. See Gudenkauf v. Stauffer Commc’ns, Inc. , 158 F.3d 1074, 1083 (10th Cir. 1998) (finding no abuse of di scretion where district court failed to specifically address each Johnson factor). The Kansas di strict court recognized that the Kansas Special Master considered the Johnson factors most applicable to this case and, given that consideration, pe rmissibly concluded that her allocation recommendations were reasonable, see Brown , 838 F.2d at 456—with the mere exception of her recommended IRPA allocation, which it increased by two percentage points. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 120121 ii. Allocations within the Pools Finally, we reject Kansas Appellants’ argum ents that the district court erred in how it allocated awards within the respective pools. Specifically, Kansas Appellants object to the district court both awarding the Kansas MDL Leader ship 98.07% of the Kansas Common Benefit Pool awar d and applying a lodestar multiplier of 3 to the award. They additionally object to the district court’s applic ation of a 2.5 multiplier to some firms for bellwether discovery work but only a 1. 25 multiplier for their own bellwether discovery work. Such disparate treatment , Kansas Appellants argue, is unreasonable. First, though they object to the district court’s portio ning of the Kansas Common Benefit Pool Award to the Ka nsas MDL Leadership, Kansas Appellants curiously cite to cases and other legal authorities that bear on the propriety of fee percentages vis-à-vis the
entire settlement award. 45 This is curious because presumab ly it is in their interest that the aggregate fee pie be as large as possibl e—conceivably, allowing for more for them. However, in the event that th eir cited authorities actually reflect Kansas Appellants’ concern that the Aggregate Fee Order is exces sive vis-à-vis the entire settlement award, we agree with our sister circuit that, “while it may be appropriate in some circumstances for fee percentages in large recovery cases to be smaller than thos e in smaller recovery cases, ‘there is no rule that a district court must apply a declining percentage reduction in

45 Compare Kan. Aplts.’ Opening Br. at 57 (“The amount of this class counsel fee award is an extraordinary and unjus tified outlier in a mega-fund class-action settlement.”), with id. (approvingly discussing “common fund class fee awards as low as 4.1% where the recovery exceeds $100 million”). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 121122 every settlement involving a sizable fund.’” In re AT&T Corp. , 455 F.3d 160, 174 (3d Cir. 2006) (quoting In re Rite Aid Corp. Sec. Litig. , 396 F.3d 294, 303 (3d Cir. 2005)). More fundamentally—and more relevant to Kansas Appellants’ salient concern about the portion of the Kanas pool a llocated to the Kansas MDL Leadership— reasonableness is the benchmark. As such, as a general matter, we neither require nor embrace overly formulaic approaches that cram p the district court’s full appreciation of each case’s facts. And that approa ch also applies to allocations within a pool. Thus, because the Kansas Special Master and district court thoughtfully considered the Kansas MDL Leadership’s many contribu tions to the ultimate settleme nt recovery alongside the Johnson factors, we see no occasion to disturb the Kansas MDL Leadership’s fee award, let alone the Aggregate Fee Order. For a similar set of reasons, we cannot co nclude that the district court abused its discretion in awarding a multiplier of 3 to the Kansas MDL Leadership. As the district court explained, the leadership multiplier re flected “each firm’s contribution to the overall benefit of the settlement class, in accordance with the common benefit guidelines set forth in the Court’s initial allocation order.” Joint App ., Vol. 25, at 5866. Likewise, the district court justified the disparity betw een multipliers for bellwether discovery work “by reference to the significant work” th at some firms—not Kansas Appellants— “performed to adva nce the litigation.” Id. at 5873–74. The firms that received a 2.5 multiplier for their pre-trial work “contribu ted more to the common benefit of the settlement class than the . . . work performed” by Kansas Appellants. Id. at 5874. Our precedent allows for the applica tion of multipliers where, as he re, “there is evidence of Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 122123 something extraordinar y in the results . . . or if one of the Johnson factors appears to demand it.” Rosenbaum , 64 F.3d at 1448. By all ac counts, this is such a case.
*** In sum, Kansas Appellants fail to cast doubt on the reasonableness of the Kansas district court’s fee allocation decision—be it the court’s December 31, 2018, Fee Allocation Order approving the four-pool allo cation scheme, or the March 2019 Kansas Pool Allocation Order awarding fees based on each attorney’s or law firm’s relative contribution to the settlement process and th e class settlement fund. While Kansas Appellants may hold their work in higher regard than the Kansas district court, they point to no evidence that the court’ s specific fee allocation decisi ons exceeded the bounds of the court’s discretion. As is clear from ou r caselaw, our review of attorneys’ fee decisions should not devolve into a full-blown second litigation or, more bluntly, a “re-do” for the disgruntled fee applicant. We find no abuse of discretion.
E. The Minnesota Appellants Minnesota Appellants similarly challenge th e Kansas district court’s December 31, 2018, Fee Allocation Order. They bring three issues before us, which they describe as follows: (1) “Whether, in awarding attorneys’ fees, the district court erred in refusing to enforce—or even cons ider—[the JPAs] entered early in the litigation that allocated fees between mass-action and commonbenefit counsel.” 46 Minn. Aplts.’ Opening Br. at 5.

46 Per Minnesota Appellants’ explanati on at oral argument, the JPA at issue here “was entered into very early on” in the litigation be tween “Minnesota Counsel and Kansas counsel and provided for the division of fees in the event that there was a Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 123124 (2) “Whether the district court erred in allocating 12% of fees to retained counsel—a fraction of what the JP As required—without considering traditional equitable principles.” Id. (3) “Whether the district court erred in allocating 23.5% of available fees to Minnesota, 49% to Kansas, a nd 15.5% to Illinois—resulting in wildly disparate compensation unco rrelated to each jurisdiction’s relative contributions—without any lodestar analysis.” Id. at 5–6. Once more, we address each is sue in turn and uphold th e Kansas district court’s judgment.
1. The Joint Prosecuti on Agreements On Issue 1, Minnesota Appellants challenge the Kansas district court’s effective abrogation of the JPAs when it allocated the attorneys’ fees awar d—an argument we are already familiar with, given that Kansas Appellants have posed a similar question, supra , concerning their contingency-fee agreemen ts. Specifically, Minnesota Appellants explain that “[t]he lead lawyers pursuing claims against Syngen ta executed binding contracts—Joint Prosecution Agreements—to coordinate their efforts and ensure a proportional distribution of costs and benefits.” Id. at 24. Under these agreements, “Minnesota Mass-Action Counsel agreed to work cooperatively with putative class counsel and surrender a portion of their own f ees to compensate class counsel for efforts accruing to mutual benefit.” Id. But, “[w]hen th[e] litigation settled, the district court asserted that those JPAs had no bearing on the allocation of fees,” which “cannot be

settlement with Syngenta.” Or al Argument, No. 19-3008, at 1:02:40–1:03: 28 (10th Cir., dated March 10, 2021). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 124125 reconciled with the text of the JPAs or th e settlement agreement,” “defies Supreme Court precedent,” is “inequitable,” and reflects “bad policy.” Id.

. Much like Kansas Appellants’ arguments, Minnesota Appellants’ contentions are unpersuasive. We think that Minnesota Ap pellants effectively waived their present challenge. But, even if the Minnesota Ap pellants properly preserved the issue, the abrogated JPAs neither contemplated nor applie d to a class recovery. Accordingly, it did not control the Kansas district court’s fee allo cation. In the absence of a controlling JPA, the district court r easonably applied the Johnson factors.

a. Effective Waiver To start, we find that Minnesota Appella nts have effectively waived any challenge concerning the Kansas district court’s disreg ard of the JPAs (Issue 1). Recall that the district court rejected a similar argument when it was posed below. As we explained earlier, the Kansas district court conclude d the JPAs “do not go vern” in this action because: (1) the court is not bound by private agreements among atto rneys; (2) the JPAs, per their terms, do not apply to the instan t situation involving a nationwide settlement class since it applied to an a llocation of fees that may be recovered in multiple, separate litigations; (3) the Settlement entered into by Syngenta and all other relevant parties superseded all other prior agreements, including the JPAs; and (4) the court’s Common Benefits Order “addressed the issue of assessmen ts in the event of individual recoveries, and they do not apply to this recovery by a settlement class.” Joint App., Vol. 23,
at 5360. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 125126 Critically, the Kansas district court’s re asoning was in response to Watts Guerra’s objection, not to any of the remaining Minnesota Appellants—indeed, it was only Watts Guerra and another law firm (Bassford) th at argued that the JPAs should apply, an objection which was first considered and reje cted by the Kansas Special Master in her November 2018 Fee Allocation R&R. At or al argument, Minnesota Appellants accepted the legal premise that they were required to either adopt Watts Guerra’s objections explicitly or state those objections to the distri ct court themselves for us to review them here. Oral Argument, No. 19-3008, at 1:08:00–1:10:00 (10th Cir., dated March 10, 2021). Reviewing the record before us no w, however, we find that neither Byrd nor Shields adequately did so. See id. , Vol. 22, at 4951–57 (making few, if any arguments, and merely “request[ing] the opportunity to sp eak at the [attorney fee allocation] hearing on December 17, 2018”); id. at 5083–86 (making perfunctor y arguments without mention of the JPAs, though purporting to join “the legal argument and objections presented by . . . Watts Guerra” “[f]or [the] sake of brevity”). Thus, since Watts Guerra exited this appeal, and the remaining Minnesota Appellants failed to argue the existence of plain error as to Issue 1 here, we conclude that their arguments concerning this issu e are effectively waived on appeal. See, e.g. , In re Rumsey Land Co., LLC , 944 F.3d 1259, 1271 (10th Ci r. 2019) (concluding that an appellant “effectively” waives an argu ment by failing to argue plain error); Richison , 634 F.3d at 1131 (“[T]he failure to argue for plain error and its application on appeal . . . surely marks the end of the ro ad for an argument for reversal not first presented to the district court.”); McKissick v. Yuen , 618 F.3d 1177, 1189 (10t h Cir. 2010) (identifying Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 126127 effective waiver when an appellant fails to argue plain error in an opening brief). Notwithstanding this effective waiver, we th ink the merits militate against Minnesota Appellants and see no need to rest our decisi on on Issue 1 solely on preservation grounds.
b. The Joint Prosecution Ag reements Do Not Govern Turning to the merits of the Kansas di strict court’s December 2018 Fee Allocation Order, we agree that the JPAs themselves do not apply to the class action settlement

context. At the outset, we acknowledge that we have reservations about—and tend to disagree with—the Kansas district court’s reas oning to the extent that the court concluded that it possessed inherent authority to overri de the JPAs. The JPAs are meaningfully dissimilar to the contingent-fee contracts. 47 While “contingent fee arrangements are . . . subject to the courts’ supervision,” Cooper , 719 F.2d at 1505, it does not stand to reason that all contracts are. In particular, not a ll contracts implicate equitable considerations

47 As we have explained, the equita ble doctrines that empower courts to police against unjust enrichme nt in common fund cases enable them to review contracts—such as the contingent-fee contract s in this case—that unjustly enrich certain attorneys at the expense of others who contributed to the ultimate recovery. See F ED

. R. C IV

. P. 23(h) advisory committee’s notes to 2 003 amend. (explaining that courts can adjust the fee award to ensu re that the overall fee is “fair” and “equitable” where “individual fee agreements between class counsel and class members . . . . have provisions inconsistent with those goals” (emphasis added)); Piambino v. Bailey , 610 F.2d 1306, 1327–28 (5th Ci r. 1980) (recognizing that conf licts between attorneys and clients can result in inequitabl e, unreasonable fee awards); see also Boeing , 444 U.S. at 478 (recognizing the common fund as an equitable doctrine); Swedish Hosp. , 1 F.3d at 1268 (recognizing the equitable benefits of applying the percentage-of-the-fund method to common fund cases). That is especi ally true in this case where IRPA attorneys sought to enforce contracts betw een themselves and their clients against non-signatory counsel. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 127128 equally. Cf. McCutchen , 569 U.S. at 100 (“The agreement itself becomes the measure of the parties’ equities; so if a contract abroga tes the common-fund doct rine, [neither party] is . . . unjustly enriched by claiming the benefit of its bargain.”). Where equitable considerations apply less forcefully or clear ly—such as when a

contract between attorneys shifts fees between those sa me attorneys, and not their clients—courts should, at the very least, e xplain why equitable prin ciples trump “[t]he principle that contractual limitations provisions ordinarily sh ould be enforced as written.” Heimeshoff v. Hartford Life & Accident Ins. Co. , 571 U.S. 99, 108 (2013); cf. 1 Rossi,

supra , § 4:3 (“Where attorneys join tly representing a client have an agreement as to the method of dividing the overall fee, the agreem ent should control, at least where there is no breach of the agreement and no violati on of the applicable rule on fee splitting.” (footnotes omitted)); id. (suggesting that there are limited circumstance where, ordinarily, “a court may refuse to recognize such a f ee-sharing agreement [t hat is, an agreement between ‘attorneys jointly representing a clas s of plaintiffs in class action litigation’],” specifically, “if [the agreement] does not prov ide for a division of fe es in accordance with disciplinary rules or some other substan tive requirement governing conditions of compensation”); cf. also id. 7:10 (“It has been said that ideally, the allocation of a fee award among class counsel is a private matter to be handled among the attorneys. . . . However, a court need not be bound by an agreement between counsel as to the allocation of fees.” (footnotes omitted)). After all, courts generally “cannot go outs ide an . . . agreemen t” and re-write a contract, let alone nullify its legal effect. Fru-Con Const. Corp. v. KFX, Inc. , 153 F.3d Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 128129 1150, 1156 (10th Cir. 1998) (quoting Bydalek v. Brines , 947 S.W.2d 135, 142 (Mo. Ct. App. 1997)); see also Dunn v. H.K. Porter Co. , 602 F.2d 1105, 1111 (3d Cir. 1979) (noting that “[t]he strong judicial reluctance to enforce the terms of a judicially fashioned bargain upon the parties” sometimes “presses in favor of honoring the express terms of the fee agreement”). Neverthele ss, we need not decide whethe r the Kansas district court exceeded the scope of its equitable powers because the JPAs, as written, apply only to individual recovery— not class recovery. In other words, the agreements co mprised of the JPAs do not “govern[],” McCutchen , 569 U.S. at 99, here—in a circum stance they did not contemplate— specifically, one involving a class recovery. Under the June 2015 Joint Prosecution Agreement, certain IRPA attorn eys agreed to cooperate with class counsel and surrender a portion of their fees to compensate cla ss counsel, via a “Common Benefit Assessment,” for mutually beneficial efforts. Joint App., Vol. 13, at 3138–39. The agreement defined a “Common Benefit Assessment” as a “co mmon benefit fee and expense assessment ordered by a state or federa l MDL court in connection with a state or federal MDL.” Id.
at 3136. As well, the JPA stated that “the Partie s agree that if and as such clients are entitled to any payment from Synge nta in connection with settlement of or judgment on such clients’ Syngenta Claims, such clients w ill be subject to 100% of the then-applicable Benchmark Common Benefit Assessment.” Id. at 3138. The agreement defined the “Benchmark Common Benefit Assessment” as the “benchma rk common benefit fee and expense assessment ordered by the Federal MDL Court in connecti on with the Federal
MDL.” Id. at 3136. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 129130 Yet, the June 2015 Joint Prosecution Agreement did not expressly contemplate a class action settlement, as no court had certified a class. That does not mean that the June 2015 Joint Prosecution Agreem ent did not anticipate a ttempts to secure class certification—it did. But the agreement expressly stated th at none of the federal MDL co-leads would “propose to ce rtify any litigation or settlement class that include[d]” the relevant Minnesota IRPA clients. Id. at 3146. To boot, it provided that “if any of the Federal MDL Co-Leads seek to certify any litigation or settlement class, such co-lead(s) will expressly exclude from his/their proposed class de finition(s), and will advocate for the exclusion and oppose the inclus ion of, all Excluded Clients.” Id. (emphases added). The agreement also ob liged class action counsel to abst ain from “interfer[ing] with or alter[ing] the terms and conditions of any f ee agreement” with the relevant Minnesota IRPA clients. Id. In exchange, the relevant Mi nnesota IRPAs would refrain from opposing class certification. See id. Simply, the JPA contained no language tethering an unforeseen class action settlement to the attorneys’ fees assessments. The parties recognized as much, as did the Kansas dist rict court. On June 22, 2015, co-lead counsel submitted to the Kansas district cour t a final, revised proposed Common Benefit Order incorporating the June 2015 Joint Prosecution Agreement. No party objected to the proposed order. Then, just over one month later, the Kansas district court entered the Common Benefit Order. Tracking co-lead counsel’s proposed submission, the Common Benefit Order contai ned the following language making clear that the JPA’s assessment language did not apply to a class settlement: Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 130131 In the event that there is a class settlement, recovery or judgment in favor of the class, no assessment pursuant to th is Section will be made, either for attorneys’ fees or for expenses, i ndividually from any class member or his/her/its individual attorney as to the portion of any class recovery distributed to that individual class me mber if the class member remains in the class (i.e., does not opt-out of the cl ass). Instead, all fees and expenses for that class member will come out of the overall class recovery funds provided by defendants, as approved by the Court, or as otherwise Ordered by the Court. The relationship between class counsel fees and costs obtained through any class settlement or judgme nt and the Common Benefit Fund will be addressed, if necessary, by later order of the court. Id. , Vol. 21, at 4804. The January 2016, First Addendum’s term s underscore this conclusion that the June 2015 Joint Prosecution Agreement did not reach class recovery. The First Addendum contemplated fee-sharing in the lim ited context of a Minnesota class. Under its terms, Minnesota counsel ag reed to pay a “33 1/3% of the attorneys’ fees awarded in all [Minnesota] MDL Class Actions” to the co-lead counsel. Id. , Vol. 13, at 3164. But even in that circumstance, the First Adde ndum did not grant “[Minnesota] MDL Class Action[s]” a national reach, defining that te rm to mean “any ac tion pursued in the [Minnesota] MDL Court.” Id. at 3162. And if a court declined to certify th e Minnesota class, the First Addendum expressly stated that only [t]o the extent that class certificati on of a [Minnesota] MDL Class Action is denied and/or Additional Minnesota Co unsel have been, are engaged to or otherwise decide to pursue cases for Producers or Non-Producers in one or more individual actions, Additional Mi nnesota Counsel hereby join in the [JPA] and are subject to all of the same rights and obligations of the Remele/Sieben Group includin g, but not limited to, the assessments on individual cases set forth therein

. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 131132 Id. at 3166 (emphasis added). So, essentia lly, the First Addendum did account for a Minnesota class—in which case, a fee-shari ng arrangement would apply. Otherwise, it paralleled the June 2015 Joint Prosecution Agreement and pr ovided assessments only on individual cases. And the First Addendum, like the June 2015 Joint Prosecution Agreement, said nothing of the natio nwide class recovery at issue here. Byrd’s own submissions before the Kansas district court reflect this understanding. In its objecti on to the Kansas Special Maste r’s R&R, Byrd mentions that the case on which the Syngenta litigation was modeled “was not certified as a class.” Id. , Vol. 22, at 4954. As a resu lt, Byrd complained that it “worked for years with [its] referring lawyers who had nothing but our contingency fee promise with our clients as the primary avenue to be compensated for the time and efforts to hold Syngenta accountable.” Id. at 4954–55 (emphasis added). Cont inuing, Byrd averred that “[u]ntil it was decided that the settlement claims process was to be worked as a class, our clients had zero intention of being in a class.” Id. at 4955. Byrd did not represent that the June 2015 Joint Prosecution Agreement guaranteed it payment. To the extent Byrd mentioned the agreement at all, it claimed that it “a ccount[ed] for a commingled world should the Court certify a class, and th at agreement was summarily discarded after the global settlement was reached.” Id. at 4957 (emphasis added). Any doubt about the June 2015 Jo int Prosecution Agreement and First Addendum’s inapplicability is resolved by the Settlement itself. Of course, the Settlement bound the plaintiffs and Syngenta, not the attorneys. But it was negotiated by leadership firms (in consultation with others ) and thus evidences the firms’ fee-award Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 132133 expectations going forward. With that in mind, section 7. 2.1 of the Settlement provides that “Settlement Class Counsel and othe r counsel representing Class Members who performed work for the be nefit of Class Members sh all make Fee and Expense Applications” to the Kansas district court. Id. , Vol. 5, at 1089. The Settlement further advised that fee and expense awards “s hall be paid from the Settlement Fund,” id. , not assessed against individual claims, as per th e June 2015 Joint Prosecution Agreement. Therefore, having carefully considered th e June 2015 Joint Prosecution Agreement and First Addendum’s plain te rms and context, and the Settle ment, we are satisfied that they simply do not apply to the nationwid e class action fee award at issue here. Moreover, we note as backgr ound to our next discussion that Minnesota Appellants do not seek to undo the Settlement that the JPAs did not contemplate. Indeed, the source of their fee is the $503 million apportionment from the Settlement. Fundamentally, their argument is that we should retroactively gr aft the fee-sharing mechanisms expressed by the JPAs—which contemplated a pre-class -settlement world—onto the fee apportionments tailored for a post-class -settlement paradigm. Th at is, they attempt to transplant what might have been a reasonabl e apportionment of fees under one scenario into a context radically transforme d by the global class settlement. Beyond trumpeting the JPA’s efforts to “promote cooperation and coordination,” Minn. Aplts.’ Opening Br. at 35, Minnesota Appellants offer no argument as to why the JPAs, even if non-binding, should govern the district court’s reasonableness -driven assessment of the fees. Nor have they deve loped a fulsome argument that explains why the JPAs—like the Fee-Sharing Agreement between certain fi rms—were “critical to the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 133134 achievement of a settlement in this litiga tion,” Joint App., Vol. 21, at 4800, an undoubtedly uphill battle given that the $217, 000,000 Kansas class action jury verdict prompted Syngenta to retu rn to the settlement table. 48 Where litigants do not advance a meaningful theory of error, we “will not go hunting” for it. Voulgaris , 2023 WL ---, Slip. Op. at 9. In sum, Minnesota Appellants ha ve therefore failed to demonstrate that the district court abused its discretion in assigning the JPAs little weight.

c. The Minnesota State Court Reas onably Allocated the Fees It seems that Minnesota Appellants’ JPA -related arguments are nothing more than indirect challenges to the Kansas district court’s abrogation of their contingent-fee agreements and its consideration of the Johnson factors. Indeed, Minnesota Appellants stated at oral argument that their JP A-focused argument is one about the Johnson factors the Kansas district court considered in a llocating fees; their argument is similar—though not identical—to Kansas Appellants’ con tingent-fee-agreement theory we earlier disposed of above. Both of these groups of appellants attempt to secure a fee-award redux. See Oral Argument, No. 19-3008, at 1: 21:00–1:23:27 (10th Ci r., dated March 10, 2021) (Minnesota Appellants stating that “[e] ven if the JPA isn’t controlling in this case it should at least provide some guidance to the district court”; referencing the sixth

48 Minnesota Appellants contend that “[ t]he district court never explained why the ex-post [Fee-Sharing Agreement] better reflecte d an equitable allocation than the ex ante JPAs.” Minn. Aplts.’ Opening Br. at 35. But the Special Master’s November 2018 Fee Allocation R&R expressly identified the equitable distinctions between the FeeSharing Agreement and the JPAs. And, in its December 2018 F ee Allocation Order, the Kansas district court observed that the Sp ecial Master’s R&R a ddressed the issue of whether the JPAs shou ld govern the awards “at some le ngth” and “agree[d] with [its] analysis.” Joint App., Vol. 23, at 5360. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 134135 Johnson factor to argue that the JPA and the Ad dendum should have b een considered by the court; and agreeing that the Addendum by its terms only applied to individual cases and not class settlements). Thus, to the extent Minnesota Appellants argue that the Kansas district court’s disregar d of contingent-fee agreements and the JPA and the Addendum resulted in an err oneous misapplication of the Johnson factors, that argument fails for a similar reason that Kansas Appella nts’ Issue 1 did above: the Minnesota state court’s allocation tracked the Johnson factors. 49 And, accordingly, the Kansas district court likewise did not err in its considera tion and approval of that allocation. The Minnesota state court awarded the largest portion of the Minnesota Common Benefit Pool to the Co-Lead Counsel firms b ecause “they made the largest investment in the Minnesota Syngenta litigation.” Joint App., Vol. 29, at 6720–21. That investment consisted of over 38,000 hours of work and nearly $6 milli on in litigation funding; the

49 Notably, neither of the Minnesot a Appellants objecte d to the May 2019 Minnesota allocation order’s consideration of the Johnson factors. Byrd did not bother to object at all, which in view of our strong waiver doctrine might explain the circuitous route the Minnesota Appellants charted in ul timately contesting the application of the Johnson factors. For its part, Shields explicitly “d[id] not challenge the judgment of the Minnesota court in making [its] allocation.” Joint App., Vol. 29 , at 6870. Rather, Shields concededly ar gued that its “objection” wa s better read as a motion for reconsideration, one challenging the Kansas dist rict court’s four-pool allocation structure. Id. at 6870–71. In explaining its tardy motion, Shield s suggested that it had to “play the game and see the result” before it could “critique” the order. Id . at 6871. In other words, Shields tabled its ex ante objection so that it could object ex post . The Kansas district court correctly observed that Shields could not “have it both ways” by “go[ing] along with the Court’s approach and roll[ing] th e dice hoping for a good result,” only to “complain about the approa ch if ultimately dissatisfi ed with the outcome.” Id. at 6871– 72. Cf. Jones v. Flowers , 547 U.S. 220, 231 (2006) (noting that the constitutionality of notice procedures is assessed ex ante ). Indeed, Shields’s strategy undercuts the orderly and efficient judicial process that objecti on opportunities are desi gned to ensure. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 135136 Minnesota Co-Lead Counsel “took lead roles in the substantiv e legal work of developing claims on behalf of all plaintiffs, brie fing and arguing many mo tions, orchestrating discovery, working cases up for trial, and c onducting the trial of the Minnesota class action.” Id. at 6721. Thus, because of their “great legal skill, diligence , . . . willingness to take risks on behalf of their clients,” and critical role in the settle ment efforts, the CoLead Counsel firms comprised Tier One in the state court’s allocation order. Id. at 6740–
41. Meanwhile, firms like Byrd and Shields, both of w hom the Minnesota state court classified as “Tier Five Firms,” directed thei r efforts toward their individual clients, not the class. Id. at 6722. Though reco gnizing that Tier Five work “contributed to the positive outcome,” the Minnesota state court noted that it was “not . . . as significant to the ultimate settlement as that pe rformed at the highest tier.” Id. at 6740. In searching for a way to measure the common benefit valu e of Tier Five work, the Minnesota state court focused on the number of completed PFSs. See id. at 6742. The sheer numerosity of PFSs submitted conferred a common benefit by placing litig ation pressure on Syngenta. For this reason, the Minnesota state court concluded that “[t]he common benefit conferred by the total group of comp leted and submitted PFSs is best measured on a per-PFS basis, not by awarding ea ch firm its claimed lodestar.” Id. Consistent with the equitable principles we previously describe d, the Minnesota state court commented that the lodestar method both failed to capture the fact that “some firms were more efficient and cost-effective than others in their appr oach to completing PFSs” and would have the effect of rewarding firms for “incomplete . . . work that conferred no common benefit.” Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 136137 Id. And though Co-Lead Counsel recommended a $250 flat fee for th e completion of the relatively simple PFS, the Minnesota state court increased the flat rate to $301.63 to bring the fee award “within $1,000,0 00 of the collective total lode star for PFS-related work by Minnesota pool firms.” Id. at 6743. As should be abundantly clear, in additio n to complying with our “hybrid” model, see Chieftain Royalty , 888 F.3d at 458–59, the Minnesota state court considered the firms’ (1) time and labor; (2) the novelty and difficulty of their legal work; (3) the requisite skill to perform the work; (4) the customary fee; and (5) the results obtained, see Johnson , 488 F.2d at 717–18. Accordingly, we are satisfied that the Minnesota state court implicitly—but thoroughly—considered the most applicable Johnson factors. And, to the extent the Kansas district court’s limited review of the Minnesota state court’s order could concern us, the harmlessness of th e Kansas district court’s decisions dispels any worries. 50 See Wright , 826 F.2d at 943 (“An abuse of discretion[] does not require reversal if that abuse amounted to harmless error.”) That is, “oth er reasoning already contained explicitly or implicitly ” in the record upon which th e district court’s judgment was based, including, of course, the Minnes ota state court’s thorough and considered review of the issues, “supplied sufficient grounds for affirmance notwithstanding [any such] error.” Groberg v. Astrue , 505 F. App’x 763, 765 n.1 (10th Cir. 2012) (unpublished) (citing Fischer-Ross v. Barnhart , 431 F.3d 729, 734 (10th Cir. 2005)).

50 We elaborate infra on our harmless-error rationale—as applied to like circumstances—in addressing the sole ch allenge of the Illinois Appellants. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 137138 In sum, we conclude Minnesota Appella nts’ Issue 1 challenge is effectively waived. Nevertheless, it also is unavailing for the reasons supplied here. Minnesota Appellants have not met thei r burden of showing that th e fee award amounted to a harmful abuse of discretion.
2. The IRPA Pool Allocation Next, on Issue 2, Minnesota Appellants c ontend that the Kansas district court’s 12% allocation to the IRPA pool is far too sma ll. They argue that the 12% allocation left them “drastically undercompensated,” even as the court acknowledged that retained counsel meaningfully contribu ted to the settlement. Minn. Aplts.’ Opening Br. at 35–36

. Minnesota Appellants assert that the court’s a llocation is especially egregious given that represented plaintiffs “will recover more than 50% of the total recovery by all claimants.” Id. at 37. Invoking the eighth Johnson factor (i.e., the amount involved and the results obtained), Minnesota Appellants argue that “[ a]llocating 12% of fees to counsel whose clients recover 50% of the settlement defies the principle that attorney compensation reflect the results obtained for clients.” Id. These complaints, however, are unavailing. Considering our deferential standards stated above, Minnesota Appellants fail to demonstrate how the Ka nsas district court erred in its specific fee allocations to the IR PA pools. Their arguments as to the poolspecific fee allocations are nothing more than invitations to second-guess the district court’s discretionary judgments, and we are not inclined to do that. The record shows that the court’s decisions were based on a r easonable view of the procedural history of the litigation and the relative contributions of individual firms and regional groupings of Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 138139 firms and comported with our “hybrid” model. See Zisumbo , 801 F.3d at 1207; McInnis , 458 F.3d at 1148; Case , 157 F.3d at 1249; see also Passantino v. Johnson & Johnson Consumer Prods., Inc ., 212 F.3d 493, 518 (9th Cir. 2000 ) (“Given the broad discretion to which attorneys’ fees determinations are entitled on appellate review, we decline to second-guess the district court’s decision.” (citation omitted)); cf. Highway Equip. Co. v. FECO, Ltd. , 469 F.3d 1027, 1037 (Fed . Cir. 2006) (“FECO has shown no clear error in the district court’s findings and we decline to second-guess the district court’s judgment that the defendant is not entitled to atto rney fees based on litigation misconduct.”); Kattan by Thomas v. District of Columbia , 995 F.2d 274, 279 (D.C . Cir. 1993) (“We are in no position to second-guess the district c ourt’s judgment as to whether the District of Columbia’s tactics were unreasonable enough to warrant the award of extra fees.”), as amended (June 30, 1993). Much like Kansas Appellants, Minnesota Appellants fail to engage with the wellthought-out reasoning of the Kansas district court. Thus, we do not find an abuse of discretion as to the Kansas dist rict court’s pool allocations.
3. The Minnesota Common Benefit Allocation Lastly, on Issue 3, Minnesota Appellant s similarly disagree with and complain about the Kansas district court’s allocation to the Minnesota common benefit pool, which they argue was unreasonably low. To start, they argue the court erred by giving “significant weight” to the “February 23, 2018 [Fee-Shari ng] [A]greement among three groups—Kansas CLC, Minnesota Class Couns el, and Clark/Phipps—[which] purported to allocate 50%, 12.5 %, and 17.5% of fees to each group, respectively.” Minn. Aplts.’ Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 139140 Opening Br. at 38. More broadly, Minnesota Appellants argue that the court’s failure to “conduct[] a lodestar calculation” in relati on to the Minnesota common benefit pool allocation “alone justifies vacating the district court’s award here.” Id. at 39 (footnote omitted). Appellants specifically contend that the Minnesota common benefit pool, when cross-checked against the app licable lodestar amounts, ended up imposing so-called punitive fractional multipliers on counsel a ssigned to this pool. Indeed, Minnesota Appellants argue that the Kansas district court acknowledged that Minnesota counsels’ contributions to the Syngenta litigation ou tstripped those of Illinois counsels’ contributions. Yet, according to these l odestar-based calculations, Illinois counsel received fee awards closer to their lodestar s than Minnesota counse ls’ fee awards, which is, in their view, an unreasona ble and arbitrary result. At bottom, Minnesota Appellants compla in about the Kansas district court’s consideration of the February 23, 2018, F ee-Sharing Agreement, including its use of lodestar figures, and the particular allocati ons among the common benefit pools. But their arguments never rise above subjective se ntiments about the quality or value of their own work. As we said in Brown , a district court need not ev aluate an attorney’s time and labor “using the lodestar formulation when , in the judgment of the trial court, a reasonable fee is derived by giving greater wei ght to other factors, the basis of which is clearly reflected in the record.” 838 F.2d at 456 (footnote omitted). In that vein, we reiterate that the record reflects an extensive—and arguably exhaustive—fee allocation process overseen by numerous cour ts and numerous individuals, judges and experts alike. And r ecall that, as part of this process, both the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 140141 Kansas district court and the Kansas Special Master justified in detail why they viewed Minnesota as the second-most important region in the overall Syngenta litigation—a relative valuation that was supplemented by the Minnesota state court’s valuation of individual attorneys’ or fi rms’ relative contributions to the Minnesota litigation. Minnesota Appellants are unpersuasive in as serting that this comprehensive process represented an abuse of discretion; they cannot carry their burden by focusing on the purported misuse of or disregard for lode star figures given—as we have detailed supra

— those figures’ lesser significance in the co mmon fund context and under a percentage-ofthe-fund fee allocation approach. See Gottlieb , 43 F.3d at 482–83; Brown , 838 F.2d at 453–55; Uselton , 9 F.3d at 853; see also Gudenkauf v. Stauffer Commc’ns, Inc. , 158 F.3d 1074, 1083 (10th Cir. 1998); Law , 4 F. App’x at 751. More specifically, as to th e February 23, 2018, Fee-Sh aring Agreement, we see no error as to the Kansas district court’s consid eration of this agreement when fashioning the fee allocations. As our sister circuit explained: Since lead counsel is t ypically well-positioned to we igh the relative merit of other counsel’s contributions, it is ne ither unusual nor inappropriate for courts to consider lead counsel’s pro posed allocation of attorneys fees . . . where the district court retains the ultim ate power to review applications and allocations and to adjust them where a ppropriate. Suffice it to say that a standard counseling consideration of le ad counsels’ allocation of fees does not in any way limit the district court’ s ability to engage in a meaningful review of the fairness of the allocation and the overall reasonableness of fees. Since our review of the record leads us to conclude that such a review occurred here, we see no abuse of discretion. Victor v. Argent Classic Co nvertible Arbitrage Fund L.P. , 623 F.3d 82, 90 (2d Cir. 2010); see also In re Copley Pharm., Inc., Albuterol Prods. Liab. Litig. , 50 F. Supp. 2d Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 141142 1141, 1149 (D. Wyo. 1999) (no ting that, because lead counsel managed the plaintiffs’ case, “the Court should and mu st rely, to a degree, on the voice of Lead Counsel on the responsibilities of class counsel members, qua lity of their work, and novelty of issues involved”), aff’d and remanded sub nom

. by In re Copley Pharm., Inc. , 232 F.3d 900, 2000 WL 1508841 (10th Cir. 2000) (unpublished); cf. In re OCA, Inc. Sec. & Derivative Litig. , No. CIV.A.05-2165, 2009 WL 512081, at *23 (E.D. La. Mar. 2, 2009) (“In securities cases governed by th e PSLRA, courts may give deference to lead counsel and lead plaintiff’s allocation of attorneys’ fees to non-lead counsel for work done after the appointment of lead counsel at the direction of lead counsel.” (citing In re Cendant Corp. Sec. Litig. , 404 F.3d 173, 197–98 (3d Cir. 2005))). Only when the district cour t strays from its duty to ensu re that the attorneys’ fees award is fair and reasonable do we find an abuse of discretion in the court’s weighing of lead counsel’s proposals. We are not the first court of appeals to consider this issue. In In re High Sulfur Content Gasolin e Products Liability Litigation , 517 F.3d 220 (5th Cir. 2008), the Fifth Circuit explained th at “a district court can in its discretion appoint a committee of plaintiffs’ counsel to recommend how to divide up an aggregate fee award.” Id. at 227. Certainly, reasoned the Fifth Ci rcuit, a district cour t’s appointment of a committee does not give it license to abdicate “its responsibility to closely scrutinize the attorneys’ fee allocation, es pecially when the attorney s recommending the allocation have a financial interest in the resulting awards.” Id. At all times, our sister circuit instructed, reasonableness must serve as the district court’s guiding star. See id. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 142143 And we have no reason to doubt that reas onableness played that role here. The Kansas district court did not uncritically de fer to the Fee-Sharing Agreement, which the Kansas Special Master acknowl edged was “not binding.” Jo int App., Vol. 21, at 4799. Rather, in keeping with both the Johnson factors and the equitable principles animating the common fund doctrine, the Kansas Special Master concluded that the Fee-Sharing Agreement merited analytical weight becaus e its signatories “w[ere] critical to the achievement of a settlement in this litigation.” Id. at 4800. The Kansas district court agreed that the Fee-Sharing Agreem ent evidenced that the “Kansas and Minnesota lead ership both believed that the Kansas attorneys should receive a significantly greater award of fees than the Minne sota attorneys.” Id. , Vol. 23, at 5377. Therefore, given the district c ourt’s reasons for weighing the Fee-Sharing Agreement, we see no reason why it would be error for the Kansas district court to choose to give weight to that Fee-Sharing Agreement, in light of its broad discretion when considering attorneys’ fees awards. See F ED

. R. C IV

. P. 23(h) advisory committee’s notes to 2003 amend. (“Courts have also gi ven weight to agreements among the parties regarding the fee motion, and to agreements between class counsel and others about the fees claimed by the motion.”). Under our deferential standard of revi ew, Minnesota Appellants’ arguments are insufficient—especially when the record reflects that th e Kansas district court’s myriad allocation proceedings and orde rs share one, overriding concer n: ensuring all attorneys’ fee awards are reasonable. Minnesota Ap pellants have not provided us with any Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 143144 argument that shows otherwise. Thus, we find its arguments on Issue 3 to be without merit.
F. Byrd and Shields We now turn to Minnesota Appellants’ additional challenges, which they bring, not as “Minnesota Appellants,” but as “Byrd a nd Shields.” In this set of challenges, the two law firms disagree with the Kansas di strict court’s July 2019 Expense Order; December 31, 2018, Fee Allocation Order; a nd July 2019 Minnesota Pool Allocation Order. Particularly, Byrd and Shields ask us: (1) “Did the [Kansas] district court err by awarding expenses to firms for outside, third-party contractors where the court a) had excluded them from the definition of common bene fit expenses; and b) denied Appellants reimbursement for temporary in-house workers who performed the same work?” Byrd & Shields Opening Br. at 2. (2) “Did the district court err in its a llocation of attorneys’ fees within and among the three pools?” Id. 51

51 In their supplemental briefing, Byrd and Shields raise a third issue, namely that the district court abused its discreti on when, on January 2021, it re-allocated the amounts awarded to the four pools “without complying with [Federal Rule of Civil Procedure] 23(h).” Byrd & Shields Supp l. Br. at 2. Appellant Hossley-Embry “adopt[ed] and incorporate[d] by referenc e” Byrd and Shields’s supplemental brief. Hossley-Embry Suppl. Br. at 2. Consistent with our Supplemental Briefing Order, we confine our review here to how the Kansas district court’s IRPA pool allocation order affected “the fee issues already briefed by the parties.” Suppl. Briefing Order at 1. After reviewing the record, we find Byrd and Shields’s Rule 23(h) argument better described as a challenge to the Watts Guerra Settlement and, therefore, outside the scope of our review in the instant appeal. See In re Syngenta AG MIR 162 Corn Litig. , MDL No. 2591, Doc. 4524 at 2 (Mem. and Order, entered Dec. 14, 2020) (discussing Byrd and Shields’s challenge to the Watts Guerra Settlement and Article III standing concerns). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 144145 Byrd and Shields also contend that the district court flip-flopped its position regarding the enforceability of private agreements entere d into between attorneys by reallocating funds from the three common benefit pools to the IRPA pool for Watts Guerra’s sole benefit pursuant to its settleme nt agreement with othe r firms. Thus, Byrd and Shields argue that,“[t]o the extent the Watts Guerra settlement agreement was binding on the district court, the JPAs si gned by Appellants were no less so.” Byrd & Shields Suppl

. Br. at 5. After providing additional backgr ound on the Kansas district court’s Expense Award, we address each issue that we have jurisdiction to consider, 52
and we affirm.
1. The Expense Award On Issue 1, Byrd and Shie lds primarily target the Kans as Special Master’s alleged expansion of the definition of “common benefit” work. By way of background, in its July 2015 Common Benefits Orde r, the Kansas district court erected a basic scheme for reimbursing counsel for common benefit litiga tion expenses. Reca ll that, under this order, the district court advised that for th e purposes of reimbursement it would only consider “reasonable expenses incurred.” Joint App., Vol. 3, at 643. The district court instructed counsel to submit expenses to Lead Counse l in accordance with specific guidelines. Those guidelines accounted for e xpenses related to: (1) travel; (2) telephonic

52 Reflecting the directions of our Su pplemental Briefing Order, we confine our discussion of the Kansas di strict court’s approval of th e Watts Guerra Settlement to its implications for the court’s a lleged disregard of the JPAs. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 145146 communications; (3) shipping, postage, courie r, and delivery charges; (4) faxing services; (5) copying; and (6) co mputer research. Over three years later, in November 2018 and, later, as part of her April 2019 Expense R&R, the Kansas Special Master invited counsel to submit expenses for reimbursement consideration, describing the Kansas district cour t’s July 2015 Common Benefit Order as a “starting point” in her evaluation. Id. , Vol. 21, at 4823. At that point, the Kansas Special Master had reviewed th e expense materials s ubmitted to date and communicated several import ant observations. First, she noted that firms had collectively submitted a total of $21,156, 330.06 in “miscellaneous” expenses. Id. at 4825. The Kansas Special Master thought some of those expenses—suc h as those related to marketing, overhead, and client acquis ition—to be non-reimbursable. Yet, other costs—such as those “related to communications with exis ting clients regarding ongoing litigation issues, including issues related to the structure, amount, and timing of any potential settlement”—were potentially “reim bursable litigation expenses, because they were necessary for the con duct of the litigation and, ultimately, facilitated the settlement.” Id. at 4826. Then, in its December 2018 Fee Allocation Order, the district court announced that it “adopt[ed]” the Kansas Special Mast er’s November 2018 R& R, noting that “no attorney ha[d] objected.” Id. , Vol. 23, at 5380. The court specifically noted that it found the Kansas Special Master’s “recommendatio ns . . . reasonable and appropriate.” Id. However, the court also stated that it w ould apply “the standards and limitations” outlined in its Ju ly 2015 Common Bene fit Order, advising that those terms would Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 146147 “govern” its “determination of reasonable ex penses that may be reimbursed from the settlement fund.” Id. Furthermore, the court relayed that “items not included in the [July 2015 Common Benefit Order] . . . generally c onstitute firm overhead, and items properly considered overhead will not be reim bursed as reasonable expenses.” Id. at 5381. The Kansas Special Master submitted an R&R on Expenses in April 2019. In keeping with her November 2018 R&R and the Kansas district court’s December 2018 Fee Allocation Order, the Kansas Special Ma ster recommended approving expenses for “experts” whom the firms described “as assi sting in getting info rmation from existing clients and/or the FSA [i.e., the U.S. Departme nt of Agriculture’s Fa rm Services Agency] in order to complete PFSs” and “contract employees,” including those who assisted clients with PFSs or discovery. Id. , Vol. 26, at 6016–17. The Kansas Special Master did not, however, “recommend acceptance of request s for reimbursement of hourly rates or salaries for law firm employe es who performed such tasks,” because those “costs are subsumed in attorneys’ fee awards.” Id. at 6017. In response to these practical modifica tions, Byrd and Shield s accuse the Kansas Special Master and the Kansas district court of impermissibly expand ing the definition of “common benefit expenses.” Byrd & Shields Opening Br. at 9–10. Relying on the guidelines established by the July 2015 Comm on Benefit Order, Byrd argues that it hired temporary employees to work exclusively on the Syngenta litigation, tasking them with procuring information from clients and the FSA to complete PFSs and respond to discovery. Shields, too, argues that it initially submitted—but th en withdrew—a “PFS expense request for ‘in-house’ 1099 contractor s who worked exclusiv ely on Syngenta,” Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 147148 thinking it was more properly classified as “overhead.” Id. at 10. On the Kansas Special Master’s recommendation, neither firm rece ived reimbursement for these expenses. In recommending denial of Byrd and Shie lds’s reimbursement request, the Kansas Special Master noted that the Kansas distri ct court’s guidance did not “prohibit[] or discourage[]” submission of ex penses related to applying for settlement benefits. Joint App., Vol. 29, at 6833. Byrd, who conced ed it “d[id] not object to the methodology” governing expense reimbursements, failed to explain why “it coul d not have submitted these expenses previously,” despite having th e same guidance as all the other law firms, said the Kansas Special Master. Id. As for Shields, the Kansas Special Master found the fact that it initially submitted its temporary workers expenses undermined its subsequent contention that it did not realize it could subm it temporary expenses. These issues aside, the Kansas Special Master explained that pe rmitting either firm to revisit its decisions— “long after the exhaustive expense review pr ocess . . . ended”—would invite every law firm to submit additional expenses, “cau sing unnecessary delay” and “unfairly prejudic[ing] the law firms that did no t seek a second bite at the apple.” Id. at 6832. The Kansas district court largely agr eed with the Kansas Special Master’s reasoning. With respect to Byrd , the district court effectively reasoned that even if Byrd could bite the apple a second time (but it could not), it would not come away with a greater expense award. That is because By rd issued W-2s for its temporary workers, instead of the 1099s used for independent contractors—a mean ingful distinction because, as the court put it, its “primary considerati on in considering [expens es for employees] is whether the work is more prop erly considered as attorney fee work or an expense.” Id. at Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 148149 6897. So, if, as with Byrd, the “firm did the work in-house, with its own employees,” and “exert[ed] a level of control [over the work ers] sufficient to demand treat[ing] [them] as employees for tax purposes,” then the “reimb ursement for this time should have come through the attorney fee award process.” Id. at 6897–98. Turning to Shields, the cour t offered the following reas oning: Shields “voluntarily chose to submit this incurred cost [i.e., fo r contract workers w ho worked on Syngenta matters] in its fee application instead of in its expense application,” though “there was no reason to believe that such charges for cont ract workers could not support an award of expenses.” Id. at 6900. And Shields “may not try the other route simply because it is unhappy with the result of the route that it did choose.” Id. The court also found that awarding Shields for its contract worker s would potentially create a “double-dipping” scenario, because Shields already received $643,980.05 for its work completing PFSs. Id.

a. The Kansas District Court Provided Re asonable Notice That It Expanded the Definition of “Common Benefit Expenses” Byrd and Shields first contend that th e July 2015 Common Benefit Order “should be considered akin to the law of the case.” 53 Byrd & Shields Openi ng Br. at 8. The law

53 Joint Appellees rightly note that Byrd and Shields did not raise an argument regarding the applicability of the law of the case doctrine as to th e July 2015 Common Benefit Order before the Kansas district cour t and, therefore, have effectively waived it and any related arguments through this forfeitu re and their subsequent failure to argue plain error on appeal. See Richison , 634 F.3d at 1131. Specifically, before the Kansas district court, Shields “averred that it had b een mistaken and pleade d for an opportunity to claim its labor costs as expenses”—yet now Shields “insist[s] that the CBO [i.e., the July 2015 Common Benefit Order] did not pe rmit such recoupment and accuse[s] the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 149150 of the case doctrine posits that a court may “decline the invitation to reconsider issues already resolved earlier in the life of a litigation.” Entek GRB, LLC v. Stull Ranches,
LLC , 840 F.3d 1239, 1240 (10th Cir. 2016). The doctrine advances the laudable goal of “maintain[ing] consistency . . . during the course of a single continuing lawsuit.” Kennedy v. Lubar , 273 F.3d 1293, 1298 (10th Cir. 2001) (quoting 18 Charles Alan Wright et al., F EDERAL P RACTICE & P ROCEDURE : Jurisdiction § 4478 (1981)). But the doctrine functions less as a mandate and mo re as a guiding norm: generally, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” United States v. Monsisvais , 946 F.2d 114, 115 (10th Cir. 1991) (emphasis added) (quoting Arizona v. California , 460 U.S. 605, 618 (1983)); accord Wilson v. Meeks , 98 F.3d 1247, 1250 (10th Ci r. 1996) (“The doctrine is considered only a rule of practice and is not a limit on a court’s power or authority.”). Thus, the law of the case doctrine is f undamentally permissive, affording courts, for example, “the discretion to entertain reli tigation of settled issues when the failure to do so would work ‘a ma nifest injustice.’” Entek , 840 F.3d at 1242 (quoting White v. Murtha , 377 F.2d 428, 431– 32 (5th Cir. 1967)). And, to the extent the law of the case doctrine constrains a district court’s discretio n at all, it certainly does not operate to calcify the legal force of non-final orders like the July 2015 Common Benefit Order. See Rimbert v. Eli Lilly & Co. , 647 F.3d 1247, 1251 (10th Cir. 2011) (noting that we have “declined to apply [the law of the case doctrin e] to rulings revisited prior to entry of a

district court of contrave ning its own order.” Joint Aplees.’ Resp. Br. at 123–24 (emphasis omitted). Nevertheless, we exercise our discretion to review their argument. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 150151 final judgment, concluding that ‘district cour ts generally remain free to reconsider their earlier interlocutory orders’” (quoting Been v. O.K. Indus., Inc. , 495 F.3d 1217, 1225 (10th Cir. 2007))); id. at 1252 (confirming that the “law of the case doctrine [is] inapplicable to reconsideration of interlocutory orders in the district court without regard to the basis for reconsideration” and “reaffirm [ing] that . . . [the] doctrine has no bearing on the revisiting of interlocutory orders”); cf. Elephant Butte Irri gation Dist. v. U.S. Dep’t of Interior , 538 F.3d 1299, 1306 (10th Cir. 2008 ) (“[E]very order short of a final decree is subject to reopening at the disc retion of the district judge.” (quoting Price v. Philpot , 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005))). In any case, we do not un derstand the district court’ s decision-making to be arbitrary as Byrd and Shields paint it. The Kansas Special Ma ster observed that guidelines established in the July 2015 Common Benefit Order were underinclusive because they failed to account for all the expenses that furthered the settlement. Thus, the Kansas Special Master recommended reim bursing expenses that advanced this goal— in effect, recommending that the Kansas dist rict court enlarge the definition of “common benefit expenses” so as to not undercompensat e attorneys. No atto rney objected to the Kansas Special Master’s recommendations, whic h the Kansas district court “adopt[ed].” Joint App., Vol. 23, at 5380. So, even though the Kansas di strict court noted that the “standards and limitations” contained in the July 2015 Common Benefit Order would apply, id. , its December 2018 Fee Allocation Orde r is reasonably clear that those guidelines are not exhaustive. Other fi rms got the point and made submissions accordingly. That Shields w ithdrew its initial request does not mean that either the Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 151152 Kansas Special Master or the Kansas distri ct court acted arbitrar ily. Sometimes, when you play your cards wrong, you lose.
b. The District Court’s Expens e Awards Were Reasonable Byrd and Shields also contend that the Kansas district court erroneously differentiated between “permanent salaried worker[s] . . . [who were] ‘shopped out’ and not designated a[s] employee[s] for ta x purposes”—who coul d be considered “expenses”—and “temporary hourly worke r[s] hired in-house”—who could not be considered “expenses.” Byrd & Shields Opening Br. at 12. Byrd and Shields essentially argue that the “court arbitrarily [gra nted and denied] expenses without any governing methodologies.” Byrd & Shields Reply Br. at 5 (emphasis added). We see it differently. Acco rding to Byrd and Shields’ s own briefing, the Kansas district court “relied on Byrd’s level of control over workers to deny [its] expense reimbursement.” Byrd & Shields Opening B r. at 12. Thus, even Byrd and Shields effectively recognize that the district court employed some kind of standard. For them, the issue is not actually that the district court’ s fee assessment was rudderless, it is that it did not extend deeply enough into the facts. Thus, Byrd a nd Shields argue that “it was incumbent on the court to cons ider the level of control other firms exerted over their workers to determine whether they were ‘independent cont ractors’ (an expense) or ‘temporary employees’ (not an expense).” Id. They say that, instead of engaging in a fact-intensive analysis, the Kansas district court “improperly accepted at face value the labels firms attached to workers when labels are not dispositive.” Id. As a result, they Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 152153 claim that the district court ended up gran ting expenses to some firms but denying expenses to others for substantively the same work. These arguments are unavailing. To star t, Byrd and Shield s fail to rebut the Kansas district court’s critical “double-dipping” rationale fo r denying their objections to the Kansas Special Master’s R&R on expenses. Recall that, as we have narrated above, in both Byrd’s and Sh ields’s cases, the Kansas district court noted that, regardless of the timeliness of their expense applications or th eir characterizations of the work for which they sought compensation, the firms already should have been allocated compensation for that work through the attorneys’ fee process—and to allow these firms to additionally obtain some kind of e xpense-related compensa tion would constitute, in effect, a double recovery. Specifically, with re spect to Byrd, the district c ourt noted that the attorneys’ fee award process was designed to compensa te it for the work don e by its employees. Likewise, regarding Shields, the district cour t concluded that Shield s voluntarily looked to the fee award process for compensation for the contract labor that contributed to its PFS work and, to allow it to shift direc tion now and seek compensation for the same work as reimbursement for expe nses would (at the very least) generate “the specter of double-dipping.” Joint Ap p., Vol. 29, at 6900. Byrd and Shields leave the Kansas district court’s findings completely unaddressed in this appeal, which, we note, proves to be fatal to their challenge. See Nixon v. City & Cnty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an ap pellant is to explain to us wh y the district court’s decision was wrong,” which involves challenging “the reas ons that were given by the district court . . . .”). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 153154 More substantively, “[a] request for atto rney’s fees should not result in a second major litigation.” Hensley , 461 U.S. at 437. The Kansas Special Master scrutinized each firm’s petition and supporting materials. Notw ithstanding this thorough review process, we reiterate that reasonablene ss is the touchstone of our an alysis. For that reason, a district court does not abuse its discretion wh en awarding attorneys’ fees and expenses unless it “renders an arbitrary, capricious , whimsical, or manifestly unreasonable judgment.” Derma Pen, LLC v. 4EverYoung Ltd. , 999 F.3d 1240, 1244 (10th Cir. 2021) (quoting Burke v. Regalado , 935 F.3d 960, 1011 (10th Cir. 2019) (citation omitted)). That the district court did not spearhead a fact-finding mission to determine the precise nature of each firm’s relati onship with its employees (or i ndependent contractors) is not the product of a “manifestly unreasonable judgment.” See id. We have no trouble concluding that the district court reasonably exercised its discretion when it, together with the Kansas Special Master’s in tensive review, engaged in both a de jure and de facto analysis of the expenses. Thus, for all these reasons, we find Byrd and Shields’s arguments as to Issue 1 unavailing.
2. The Lodestar Figures We now turn to Byrd and Shields’s penultimate challenge. In their view, they are the victims of group work gone bad. Before the Kansas district court even allocated a percentage of the fee award to the Minneso ta pool, Byrd and Sh ields contend that Minnesota CLC recommended a common benefit fee based on a lodestar computation reflecting the work of the Mi nnesota attorneys, including Shields’s “time and lodestar ($5,240.683.25 in PFS work) and some of Byrd’s PFS time and lodestar.” Byrd and Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 154155 Shields Opening Br. at 13. Accordingly, in the sequence of events, Byrd and Shields supplied Minnesota CLC their proposed fee allocations based on their lodestar figures and then—not coincidentally, as they se e it—the Kansas district court allocated approximately $118 million to the Minnesota pool. Thus, in the view of Byrd and Shields, the $118 million pool allocation included their lodestars. But by the time the Minne sota state court disbursed the funds to individual firms, Byrd and Shields cont end that Minnesota CLC reversed course, specifically by arguing that their PFS wo rk—which contributed to the lodestar computation resulting in the $118 million pool allocation—should be excluded from their fee award. By their lights, the effect—if not the intent—of this sh ift in course was to reduce the fee claim of Byrd and Shields to the pool funds and to increase the amount available for others—notably, the Minnesota CLC. In ultimately approving “these shenanigans,” Byrd and Shields contend that the district court abused its discretion. Id. at 14. As further evidence of the unreasonable allocation, Byrd and Sh ields complain that the Kansas district court’s allocation sche me awarded certain Illinois firms—which did not significantly contribute to the common re covery—a higher PFS award than Byrd and Shields could claim given the $301 flat fee. We need not spend mu ch time on this issue as Byrd and Shields’s premise—that the lodestars were determinative in the dist rict court’s December 2018 Fee Allocation Order—is wrong. When the Kansas Special Master initially reco mmended the district court allocate 24% of the fee award to the Minnesota pool, she assessed the litigation’s history, the Fee-Sharing Agreement, her own and the Illinois Special Master’s experience Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 155156 in connection with the settleme nt negotiations and implemen tations, and “the available data regarding attorney hours incurre d.” Joint App., Vol. 21, at 4815. The Kansas Special Master specifically noted that “[t]here is some in consistency and dispute among firms as to what hours are properly co nsidered ‘Common Benefit Hours.’” Id. at 4815
n.7. In keeping with the equitable principles undergirdi ng the common-fund doctrine, the Kansas Special Master explaine d that “[w]hat is most releva nt in assessing contributions that benefitted the Class is not the characterization of the time , but the actual tasks performed.” Id. (emphases added). Unsurprisingly, the Kansas district court did not so much as mention a lodestar calculation in connection with the initial Minnesota allocation. So, contrary to Byrd and Shields’s contentions, the lodestars did not shape the initial Minnesota allocation. Moreover, Byrd and Shields crucially “ign ore that the basis for awarding fees for PFS work from the common-benefit allocations was merely that it kept the ‘litigation moving’ and ‘helped to push Syngenta toward settlement.’” Joint Aplees.’ Resp. Br. at 114 (quoting Joint App., Vol. 21 , at 4817). And, as the Minn esota state court explained, it largely agreed with Minnesota CLC’s “gen eral approach” with respect to the PFSrelated work and its recommenda tion to compensate su ch work through a flat fee. Joint App., Vol. 29, at 6738. Minnesota CLC justified the flat-fee approach through explaining, among other rationale s, that a flat-fee payment of $250 “for each completed PFS . . . represents the best solution to reco gnize the common benefit value of all firms’ PFS efforts through a consistent payment methodology, while avoiding overpayment for Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 156157 inefficient work .” Id. at 6731 (emphasis added). As described by the Minnesota state court, in substance, Minnesota CLC reasoned as follows: [C]ompleting thousands of PFSs would serve the common benefit by showing Syngenta that defeating cl ass certification would not end the litigation[;] [o]nce critical mass wa s reached (that is, by completion and delivery of a sufficiently large number of PFSs to place pressure on Syngenta), the effect of any single a dditional PFS became of diminishing benefit to the entire group of plaintiffs. Id. at 6725. Minnesota CLC did not stop there, as it further reasoned, in deciding to recommend a flat fee for each PFS filed, that: [D]ifferent firms performed PFS-related work in different ways, with some using senior lawyers, othe rs using junior lawyers, paralegals, or staff, and still others hiring outside c ontractors. As a result, widely disparate hours, hourly rates, and lodestars, were claime d for doing essentially the same work. As an example, two objecting firms’ PFS lodestar amounts averaged to $2,000 per PFS or higher, while other firms complete d their PFSs at a much lower average cost. [Minnesota CLC] al so learned that so me firms recorded all of their PFS-related time contemporan eously, while others recreated it later based upon estimates, giving rise to differing levels of accuracy in the record-keeping supporting the claimed PF S lodestar amounts. Furthermore, some firms did not differentiate be tween time spent entering completing PFSs and time spent entering data for other litigation purposes. Id. at 6726. Certainly, Minnesota CLC’s discussion illustrates precisely why, in a common fund context, the lodestar can serve as a dubious benchmark. The Minnesota state court itself, wh ile largely adopting Minnesota CLC’s approach and, to an extent, its reasoning for a flat fee, found that $250 was too low and increased the flat fee to $301.63, explaining that: The [a]mount of the Court’s fl at fee is driven, in part, by the arithmetic of dividing a large sum of m oney among many claimants

. The Court’s considered judgment is th at the per-PFS flat fee . . . should be increased by Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 157158 approximately 20% from the proposed am ount. A flat fee of $300 would be exactly 20% higher than the propos ed $250, but would leave a small percentage of the Minnesota pool attorn ey fees unallocated. The remaining small amount to be allocated after adjusting the multipliers and increasing the flat fee is most fairly accounted for, in the Court’s view, by slightly raising the per-PFS flat fee to $301.63. Id. at 6743 n.6 (emphasis added). And, pe rhaps more crucially, the Minnesota state court—following, in effect and in salient part, the diminishing returns and work inefficiency reasoning of the Minnesota CL C, which is also embraced in our caselaw— stated that: In the Court’s view, a flat fee of $301.63 for each completed PFS submitted to Syngenta will provide fair compensa tion for the common benefit conferred by PFS-related work, without over-compensating for such work

. To pay a much higher fee for PFS-related work, well in excess of the claimed lodestar amounts as advocated by many of th e objectors, would overemphasize the value of the PFS work, as compared to the substantive legal work performed by the firms in the higher tiers . As Judge Lungstrum [o f the Kansas district court] noted in his March 20, 2019 orde r, the preparation of PFSs contributed to the favorable outcome to a relatively small extent, and it is appropriate to compensate firms for th eir completed PFSs at a rate that reasonably approximates the lodestar amount for performing that task efficiently. Id. at 6744 (emphasis added). As we have already explained—and as our discussion here illustrates—the Minnesota state court’s allocation order wa s not out-of-step with our precedent: it reasonably, albeit implicitly, considered the co mmon fund doctrine’s equitable principles and the most relevant Johnson factors. Here, we find that the overall record, along with Joint Appellees’ arguments before us and in the courts below, show the Minnesota state court’s flat-fee award of $301.63 per PFS to be reasonable. T hus, we do not see any Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 158159 significant issues surrounding the discre pancy between the flat-fee rates between Minnesota and Kansas such that a reversal or remand is warranted as to this issue. 54 Equally unavailing, Byrd and Shields’ s claims about PFS compensation from the Illinois common benefit pool add nothing to th eir argument, as these claims are wholly speculative and unsupported by th e record. Thus, to the exte nt that Byrd and Shields argue in their initial and supplemental briefi ng that fee awards were unreasonable, we disagree. 55
3. The District Court Did Not Arbitrar ily Disregard the Joint Prosecution Agreements We now resolve Byrd and Sh ields’s final challenge by highlighting the critical distinctions between the Joint Prosecution Ag reements and the Watts Guerra Settlement. Byrd and Shields argue that the Kansas dist rict court’s approval of the Watts Guerra Settlement illustrates its arbitrary disregard fo r the JPAs. This argument is unavailing.

54 The differential rates between th e PFS-related fees of Kansas and Minnesota track the relative common benefit po ol allocations. That is, the Kansas pool accounted for roughly 50% of the aggregate a ttorneys’ fee award, while the Minnesota pool accounted for just shy of 25%. That is, the Minnesota pool was half the size of the Kansas pool. So, logically, Minnesota PFS wo rk was compensated at half the rate of Kansas PFS work, thereby reflecting the Kans as district court’s judgment as to the relative contributions of each litigation site to the overall settlement process. Byrd and Shields’s related contention that some I llinois firms benefitted from a PFS flat-fee windfall is unavailing; no firm asked the Illinois district court to award PFS work on a flat-fee basis and, in any case, the Illinois court gave “little weight” to the hours firms reportedly spent on PFS work. Joint App., Vol. 29, at 6941.

55 To the extent that Byrd and Shield s argue that the Kansas district court erred in allocating only 12% of the aggregate fee award funds to the IRPA pool, we direct them to our discussion of Ka nsas Appellants’ argument re garding that same issue. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 159160 As we have discussed, the JPAs did not gov ern and merited little wei ght because they did not anticipate a nationwide cla ss action settlement. By c ontrast, the nationwide class action settlement context is baked into the Watts Guerra Settlement. Hence, Minnesota Appellants’ argument that the district court ar bitrarily enforced one agreement but not the other rests on an inapposite comparison, one ta ntamount to comparing apples to oranges.
See Derma Pen, LLC , 999 F.3d at 1244 (noting that a district court does not abuse its discretion when awarding attorneys’ fees an d expenses unless it “renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment” (quoting Burke , 935 F.3d at 1011 (citation omitted))).
*** In sum, the Kansas district court acted well within its discretion in denying Byrd and Shields’s belated expense ap plications and motions for re consideration, and Byrd and Shields fail to show how these denials constituted an abuse of discretion. Likewise, they, like their fellow Appellants, fail to establish an abuse of disc retion as to any facet of the attorneys’ fee allocation proce ss in the Kansas district cour t. We thus reject their challenges and affirm the Kansas district cour t’s orders concerning the fee allocation as to the Minnesota common benefit pool.
G. Illinois Appellants We now turn to Illinois Appellants, wh o target the Kansas district court’s November 2019 Illinois Pool Allocation Order, while also invoking the Kansas district court’s April 2019 Clarification Order. Their sole issue is framed as follows: “Whether the district court erred by refusing to review the attorneys’ fees allocations recommended Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 160161 by [the Illinois Special Master] and [the Illinoi s district court] and instead adopting [the Illinois district court’s] recommended allo cations without reviewing them under the Johnson factors.” Ill. Aplts.’ Opening Br. at 6. Consisting of Demerath and Eiland, Illi nois Appellants pursue a narrow challenge. They argue that the Kansas district court e rred by reviewing the Illinois district court’s allocation order too deferentia lly. Illinois Appellants conten d that the Kansas district court, because it had “exclusive jurisdiction ove r the allocation of the attorneys’ fees and expenses,” “was required to meaningfully review the recommendations regarding the allocation by applying the Johnson factors.” Id. at 10. However, in their view, because the Kansas district court limited its review of the August 2019 Illinois Pool Allocation Order to structural and proce dural issues, it did not specif ically assess the Illinois fee award’s reasonableness against the Johnson factors. Accordingly, Illinois Appellants request that we reverse the Kansas distri ct court’s November 2019 Illinois Pool Allocation Order “so that the distri ct court can perform this review.” 56 Id.

56 Illinois Appellants concede that the Ka nsas district court “had discretion to consider (and even defer to) the recommendations of [Illinois Special Master] Stack and [Illinois District] Judge Rosenstengel,” but n onetheless assert that the court “had no discretion to simply adopt Judge Rosenste ngel’s recommendations without at least analyzing the allocation under the Johnson factors.” Ill. Aplts.’ Opening Br. at 12. At bottom, the implicit foundation of Illinois Ap pellants’ argument seems to be that the Kansas district court erred by not adoptin g the Illinois Special Master’s R&R, which provided them a higher attorn eys’ fee award compared to the Illinois district court’s August 2019 Illinois Pool Allocation Order. Illinois Appellants specifically note that, in its Fee Allocation Order, the Kansas district cour t justified deferring to the Illinois district court’s August 2019 Illinois Pool Allocation Order because of that court’s “familiarity with the lawsuit.” Id. at 13. They assert, however, th at though such “logic certainly applies to [Illinois Special Master] Stack’ s Report and Recommendation,” “it does not support unquestioned deferenc e to Judge Rosenstengel’s determination because she was Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 161162 First, we find that, in failing to object to the Kansas district court’s pronouncements regarding the scope of its review, Illinois Appellants forfeited their arguments. And, because they failed to ar gue plain error before us, we deem those arguments effectively waived. Nevertheless, with our highly deferential—and prejudicesensitive—standard in mind, we are ultimately not persuaded as to the merits of their claim. A federal court, albeit one based in I llinois, assessed Illinois Appellants their fees in full view of the Johnson factors. To the extent the Kansas district court erred—an issue we need not decide —the error was harmless.
1. Effective Waiver Illinois Appellants lodged no objections to the Kansas district court’s December 31, 2018, Fee Allocation Order— which anticipated that the Illinois district court alone would allocate the Illinois common benefit pool—and, likewise, voiced no contemporaneous objection to the court’s April 2019 Clarification Order when it was entered. Illinois Appellants’ failure to file objections as to the scope of the Kansas district court’s review of the Illinois district c ourt’s allocation order constitutes forfeiture. See Leffler , 942 F.3d at 1196 (“When a party fails to raise an argument below, we typically treat the argument as forfeited.”). Furtherm ore, because Illinois Appellants failed to

not the judge who presided over the Illinois Syngenta litigation.” Id. Yet it is not altogether clear how Illinois Appellants wo uld practically reconcile, on the one hand, their insistence that any allege dly unquestioned deference by th e Kansas district court to the Illinois district court is improper w ith, on the other hand, their contention that deference to the Illinois Special Master’s R&R—but not Judge Rosenstengel’s August 2019 Illinois Pool Allocation Order—is permissible. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 162163 argue plain error before us, we deem their argument effectively waived. See Richison , 634 F.3d at 1131. However, as we have said , “whether issues should be deemed waived is a matter of discretion.” Walker , 918 F.3d at 1153. With that, we elec t to turn to the merits.
2. The Kansas District Court’s Limite d Review Did Not Prejudice Illinois Appellants

a. The Illinois District Cour t Adequately Applied the Johnson Factors To start, we note that the Illinois dist rict court’s August 2019 Illinois Pool Allocation Order expressly acknowledged that common be nefit principles and the Johnson factors shaped its determination of the fe e award. With respect to Demerath, the Illinois district court observed that the fi rm claimed “9,505.5 hours of common benefit work, consisting of 6,060 atto rney hours and 3,445.5 non-a ttorney hours.” Joint App., Vol. 29, at 6944. Of that, Demerath claimed 321.5 atto rney hours and 91.5 non-attorney hours for drafting complaints, 5,375.5 attorn ey hours and 3,237 no n-attorney hours for pre-settlement communications with clients, 345 attorney hours and 105 non-attorney hours for assisting clients in perfecting claims , and 18 attorney hour s and 12 non-attorney hours in preparing fee petitions. The court afforded “signifi cantly less weight to the nonattorney hours and little weight to hours reco rded as pre-settlement communications with clients and assisting clients in perfect claims,” id. , because “time spent shepherding clients through the claims process and subs tantial post-retention communications with clients are not especially valuable to the common benefit of the plaintiffs,” id. at 6938. Moreover, the court found that Demerath’s c ontributions to the over all settlement were Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 163164 limited to it “filing some of the first cases in Nebraska.” Id. at 6944. Accordingly, the court awarded Demerath $780,166.67, or 1% of the Illinois pool. Turning to Eiland’s award, the court obs erved that Eiland clai med 13,254 hours of “common benefit work,” consisting of 7,2 68 attorney hours and 5,986 non-attorney hours. Id. at 6945. While Eiland devoted 468 attorney hours to complaint drafting, motion briefing and argument, pa per discovery, expert witne ss work, and other pretrial motion practice, they committed the bulk of their attorney h ours—4,015, to be exact—to pre-settlement communications with clients. In addition, Eiland spen t 815 attorney hours preparing and revi ewing PFSs, which the co urt already explained c ontributed little to the plaintiffs’ common benefit. However, the cour t recognized that Eiland filed several cases in Illinois, assisted with document review and briefing, worked with experts, and conducted discovery. Fo r this, the court awarded Eiland $2, 340,500, or 3% of the Illinois pool. As we noted earlier, “[w]e have never held that a district court abuses its discretion by failing to specifically address each Johnson factor”—and, in fact, “we have stated that not all of [these factors] need be considered.” Gudenkauf , 158 F.3d at 1083 (emphasis added). We are satisfied that the Illinois district court applied the Johnson factors, albeit implicitly. The Illinois district court expressly found that the bulk of both firms’ time and labor did not contribute to the plaintiffs’ common benefit, and accordingly discounted much of that time. See Johnson , 488 F.2d at 717 (Factor 1). Because walking clients through the claims process and preparing fact sheets was exceptionally easy, neither Demerath nor Eiland had to apply their talents to particularly Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 164165 novel or difficult legal questions; successfu lly accomplishing those tasks required little skill. See id. at 718 (Factors 2 and 3). The “resu lts” both firms obtained were relatively miniscule compared to the time they invested , but the Illinois district court nevertheless compensated each firm for its cont ribution to the common benefit. See id. (Factor 8).
b. To the Extent the Kansas District Court Erred, the Error Was Harmless Though it nominally restrict ed its review of the Illinois district court’s order to structural and procedural defect s, the Kansas district court opi ned that the Illinois district court “properly considered the type of work for which Demerath claimed common benefit fees, and [it] applied this Court’s guidance in affording less weight to nonattorney hours, claims work, and client communications.” Joint App

. , Vol. 32, at 7448. And, as it did with Demerath’s objections, th e Kansas district court remarked that the Illinois district court “acknowledged Eiland’ s contributions” but assigned less value to the firm’s work “relating to fact sh eets, client communications, claims, and administration.” Id. at 7449. Notably, the Kansas distri ct court assured the parties that it would not “merely . . . sign off on the allo cations . . . without any consideration whatsoever.” Id. , Vol. 26, at 5926. So, any insinuation that the court did a blanket, blind adoption of the Illinois district court’s fee a llocation order would be plainly inaccurate. Framed more accurately, what Illinois Appellant s object to is the Kansas district court’s decision to not explicitly analyze the fee allocations against the Johnson factors after another federal court did exactly that. Of course, our precedent establishes th at courts are obliged to ensure the reasonableness and fairness of attorneys’ fees awards and to state the reasons for its Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 165166 findings. See Uselton , 9 F.3d at 853 (reconfirming, agai n, “the existing requirement that the district court determine the reasonablene ss of the fee and articulate specific reasons for its findings”); Brown , 838 F.2d at 454 (noting that “the district court must ‘articulate specific reasons for fee awards to give us an adequate basis’ to review the reasonableness of the percentage and thus the reasonabl eness of the fee award” (citation omitted) (quoting Ramos v. Lamm , 713 F.2d 546, 552 (10th Cir. 1983))). Even so, reviewing Illinois Appellants’ ch allenge on the merits still affords them no relief because they completely fail to explain how they we re prejudiced by the Kansas district court’s circumscribed review. That is, they fail to explain how a Johnson factor analysis—or, indeed, the “hybrid” analysis we have explained is appropriate in common fund allocations, see Chieftain Royalty , 888 F.3d at 458–59—would change the Kansas district court’s decisions regarding the attorney s’ fees awarded to them. Effective waiver aside, we are especially disinclined to cons ider reversing a district court’s fee award where, as here, appellants have made no a ttempt to show how they were harmed or prejudiced by the alleged error. See Nixon , 784 F.3d at 1366. This is especially so given that the Illinois district court considered the Johnson factors and common fund equitable principles when devising the fee award. So, bearing in mind Illinois Appellants’ failure to explain how exactly they were prejudiced by the Kansas district court’s adoption of the Illinois district court’s pool allocation order, we do not see a reason to disturb the Kansas district court’s decision. In short, “[w]e s ee nothing in the record to indicate [either the Kansas or Illinois] district court[s] faile d to carefully and adequately familiarize Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 166167 [themselves] with this litigation before rendering the fee award.” Uselton , 9 F.3d at 854. We affirm.
H. Johnson Becker The last of the Appellants, Johnson Be cker challenges discrete portions of the Kansas district court’s December 31, 2 018, Fee Allocation Or der and July 2019 Minnesota Pool Allocation Order. Specifica lly, Johnson Becker questions whether the Kansas district court’s “refusal to allow [the firm] . . . the opportunity to seek attorneys’ fees before those Courts where it actually performed work—while allowing every other similarly situated firm to make multiple fee applications—[constituted] a due process violation[.]” Johnson Beck er Opening Br. at 1. Specifically, Johnson Becker argues that the Kansas district court violated its constitutional due process rights when it a ssigned it solely to the Minnesota common benefit pool, rather than assigning it to the Illinois common benefit po ol or to both the Illinois and Minnesota pools. Johnson Becker complains that it “was the only Firm in the entire litigation who performed common benefit work in two jurisdictions but was evaluated by only one court.” Id. at 2–3 (emphases omitted). Thus, as Johnson Becker reasons, the Kansas district court’s “deci sion to place [Johnson Be cker] in one Court versus the Courts where the work occurred,” then, “was wholly arbitrary and adversely impacted its fee award.” Id. at 3. According to Johnson Becke r, that adverse impact took fo rm as follows: It “filed 1,352 cases . . . in Minnesota and 510 cases in Illinois,” and it performed “511.8 hours of ‘traditional’ common benefit work in Mi nnesota and 400.9 ho urs in Illinois.” Id. at 2. It Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 167168 is not that the Minnesota state court made no effort to compensate Johnson Becker for its Illinois work—it did. The issue, as Johnson Be cker sees it, is that the Illinois district court’s “methodology allowed firms to seek reimbursement for ‘bro ader’ common benefit work—i.e., work that advanc ed the litigation but was not subsumed within traditional litigation activity.” Id. Johnson Becker claims it pe rformed 6,000 such “broader” common benefit hours in Illinois. Id. Though Johnson Becker would like to collect, it cannot as long as it is assigne d to the Minnesota pool. Thus , Johnson Becker argues that the Kansas district court’s initial assignment to the Minnesota pool violated its right to due process under the Fifth an d Fourteenth Amendments. We decline to reach Johnson Becker’s constitutional claims because the firm abandoned (i.e., waived) its sole appellate issue in the district court. Johnson Becker does not contest the rele vant procedural history. When the Kansas Special Master initially placed John son Becker within the Minnesota common benefit pool, Johnson Becker filed a paper seeking clarification concerning how its Illinois legal work would be evaluated and compensated by the Minnesota state court. Furthermore, Johnson Becker affirmed that it was “not objecting to its inclusion in the Minnesota grouping, or to any other aspects of the Special Master’s Report.” Joint App., Vol. 22, at 5080 (Johnson Becker’s Req. fo r Clarification Regarding the November 2018 Fee Allocation R&R, filed Dec. 5, 2018). At the subsequent hearing on the Nove mber 2018 Fee Allocation R&R held on December 17, 2018, the Kansas Special Master clarified that she expected the Minnesota state court to compensate Johnson Becker for its Illinois legal work as part of its overall Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 168169 attorneys’ fee award. Later in the sa me hearing, counsel for Johnson Becker characterized the firm’s “objection” as “technically a request for clarification,” id. , Vol. 23, at 5314, which makes se nse given that Johnson Becker titled its filing “Johnson Becker’s Request for Clarification ” and explicitly did not object to its inclusion in the Minnesota pool, id. , Vol. 22 at 5076 (emphasis added). Johnson Becker stated at the hearing that the Kansas Special Master “for the most part clarified [its] question” and further relayed that it “kn[ew]” it would be “t reated fairly” by both the Minnesota state court and Minnesota CLC as to the alloca tion and valuation of its Illinois time. Id. , Vol. 23, at 5314–15. Concluding, Johnson Becker said, “So, . . . what we really came for today was to get that clarification. I think we’ve received it .” Id. at 5315–16 (emphasis added). 57 Johnson Becker’s filing of a paper reque sting clarification and then its explicit decision not to object—upon receiving the Kansas Special Master’s clarifying explanation—suggests that it knew it had the ri ght to object “and intentionally chose[] to relinquish it.” Vreeland v. Zupan , 906 F.3d 866, 876 (10th Cir. 2018); see also United States v. Cruz-Rodriguez , 570 F.3d 1179, 1183 (10th Cir. 20 09) (“Waiver occurs when a party deliberately considers an issue and ma kes an intentional decision to forgo it.”). Stated otherwise, even if we were to characterize Johnson Becker’s “request for clarification” as an “objection”—as it initiall y did during the hearing before the Kansas

57 The Kansas district court simila rly observed that Johnson Becker had “abandoned” the argument du ring the December 17, 20 18, hearing, among other instances in which the firm faile d to explicitly raise its objecti on. Joint App., Vol. 29, at 6876. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 169170 Special Master—Johnson Becker’s agreemen t with, and its acceptance of, the clarification offered and decisi on not to object further to its placement in the Minnesota common benefit pool constituted abandonment. See Richison , 634 F.3d at 1127 (noting that when a litigant has “intentionally relinquish ed or abandoned [a theory or argument] in the district court, we . . . deem it waived and refuse to consider it”); see also United
States v. Martinez , 974 F.2d 589, 591 (5th Cir. 1992) (noting th at “the critical factor in deciding whether the silence of counsel co nstitutes a waiver is whether there was a meaningful opportunity for counsel to request argument or to object, considering all the attendant circumstances” (em phasis added) (footnote omitted)). And, even if we were to charitably look at Johnson Becker’s conduct be fore the district court as indicative of general litigation negligence and review its claim through the framework of our forfeiture doctrine, Johnson Becker failed to argue for plain error in either its opening or reply briefs. So, we would deem Johnson Becker’s present objection to the district court’s placement effectively waived. See Richison , 634 F.3d at 1131. Furthermore, we note the additional fact that Johnson Becker utterly failed to object or submit a motion for reconsideration after the Kansas district court entered an order on January 9, 2019, whic h “noted that . . . six additi onal firms had been assigned by the [Kansas] [S]pecial [M]aster to both the Kansas and Minne sota pools because they had performed audited common benefit work in both jurisdictions.” Joint App., Vol. 29, at
6875. 58 As to that January 9, 2019, order, the Ka nsas district court further recounted that,

58 As the Kansas district court itsel f pointed out, Johnson Becker repeatedly declined to object to any differential treatment of similarly situated law firms throughout Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 170171 “with the consent of the Kansas and Minnesota leadership (which were designated by this Court and the Minnesota [state] court to unde rtake initial allocations from their respective pools), the Court ordered that those firms would remain in both pools,” but “Johnson Becker did not renew its request to be pla ced in two pools in light of this order.” Id. Johnson Becker’s failure to file anythi ng opposing the Kansas district court’s decision to place six other firms, but not it, in multiple pools pe rhaps most crucially proves fatal in terms of Johnson Becker’s cl aim for preservation. In other words, when the Kansas district court issued its January 9, 2019, order—which placed those six other firms in multiple pools—Johnso n Becker was explicitly on no tice that such a placement was possible and that the court did not provide Johnson Becker wi th such a placement. Yet, even with explicit notic e, Johnson Becker was silent and did not challenge its placement, despite knowing that other firms were successfully pl aced in multiple pools. To frame it a bit differen tly, only after it received its fe e award from the Minnesota common benefit pool did Johnso n Becker complain its rights had been violated and argue that the Kansas distri ct court needed to unwind the allocation

the fee allocation process, even though it wa s aware that roughly six other firms like it— i.e., firms that had performe d work in two litigation sites— had been assigned to multiple common benefit pools. Moreover, even after the Kansas district court largely adopted the Kansas Special Master’s Nove mber 2018 Fee Allocation R&R and “clarifie[d] that each applicant will eventually rece ive an award of fees based on its common benefit work anywhere, performed with respect to cases in any jurisdic tion, regardless of the particular pool into which the applicant is placed,” John son Becker “did not seek reconsideration of the Court’s decision to assign it only to the Minnesota pool.” Joint App., Vol. 29, at 6875. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 171172 framework and reassign it. But, for the re asons discussed above, Johnson Becker had (at least) forfeited or (much more likely) abandoned and waiv ed this complaint months before the Minnesota common benef it pool had been allocated. Accordingly, we need not consider Johnson Becker’s constitutional challenges here. See Richison , 634 F.3d at 1127, 1131; Carrasco-Salazar , 494 F.3d at 1272–73. After all, “[i]t is a well-est ablished principle governing the prudent exercise of th[e] [c]ourt’s jurisdiction that normally the [c]o urt will not decide a constitutional question”— here, Johnson Becker’s constitutional due pro cess claim—“if there is some other ground upon which to dispose of the case.” Holder , 557 U.S. at 205 (first alteration in original) (quoting Escambia Cnty. , 466 U.S. at 51). So, we conclude that Johnson Becker has failed to preserve its so le appellate issue.
I. Pending Motions Before concluding our merits discussion, we briefly turn to and dispose of three requests related to the merits of this action: (1) Kansas CLC’s Contingent Cross-Appeal; (2) Byrd’s, Shields’s, and Ho ssley-Embry’s October 13, 2020 , Motion for Leave to File Additional Briefing; and (3) Toups/Coffman’s July 26, 2021, Motion to Supplement the Record. We dismiss these as either moot or unavailing. 59

59 Because we have not considered in resolving this appe al the portions of Byrd and Shields’s supplemental briefing re lated to the Watts Guerra Settlement, in summary fashion, we also deny as moot Joint Appellee’s motion to strike, which was filed on August 5, 2021. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 172173 1. Kansas CLC’s Contingent Cross-Appeal We turn first to Kansas CLC’s Continge nt Cross-Appeal. Kansas CLC brings its cross-appeal “to preserve and show that even if one or more Appellants . . . demonstrate they were undercompensated, the Kansas allocation was not the reason for any undercompensation,” and “any [potential] increase in fees to the A ppellants should be based on reducing the Illinois or Minnesota allocations .” Kan. CLC’s Contingent Cross-Appeal Br. at i. In the alternative, Kansas CLC also requests that, “[i]f [we] accept[] any of [Appellants’] arguments,” we should remand th is matter “for the district court to make [an allocation] determination in the first inst ance because it is most acquainted with the facts.” Id. at i–ii. Nevertheless, Kansas CLC itsel f further states that it “strongly urge[s] full affirmance of the district court’s fee-allocation orders, which would render moot th[e] contingent cross-appeal .” Id. at i (second emphasis added). Because a federal court can only exer cise jurisdiction over “[c]ases” and “[c]ontroversies,” U.S. Co nst. art. III, § 2, cl. 1, “an actual controversy must be extant at all stages of review.” Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1121 (10th Cir. 2010) (alte ration in original) (quoting Arizonans for Off. Eng. v.
Arizona , 520 U.S. 43, 67 (1997)); see also Equal Emp. O pportunity Comm’n v. CollegeAmerica Denver, Inc. , 869 F.3d 1171, 1173 (10th Cir. 2017) (“A case or controversy does not exist when a claim is moot . Thus, moot claims must be dismissed.” (footnote omitted)). Since we fully affirm the Ka nsas district court’s orders challenged in these appeals, we deny the related Contingent Cross- Appeal filed by Kansas CLC as

moot. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 173174 2. Byrd, Shields, and Hossley-Embry’s Moti on to File Additional Briefing On October 13, 2020, Byrd , Shields, and Hossley-Embry (hereinafter, “Movants”) moved this court for an order permitting add itional briefing. We conclude that Byrd, Shields, and Hossley-Emb ry effectively waived their arguments. The motion for leave primarily concerns the motions for reconsideration Movants filed before the Kansas district court in September 2020. Those motions for reconsideration, in turn, challenge the Kansas district court’s December 2018 and January 2019 orders, including the December 31, 20 18, Fee Allocation Order as well as the Kansas Special Master’s D ecember 2018 R&R. In brief, those motions sought an additional fee allocation to the IRPA pool gi ven allegedly unforeseen complexities in the settlement claims process. To wit, Mova nts argue the “district court prematurely discounted [their] contingent fee recoveries with their clients and awarded these firms a lesser common benefit fee while sh ifting millions of dollars in f ees paid by their clients to the various common benefit pools” because “i t lacked information as to the scope of work required by the attorneys during the settlement claims process.” Joint Aplts.’ Mot. for Leave to File Additional Briefing, Doc. 010110422119, at 4 (filed Oct. 13, 2020). Therefore, in Movants’ view, additional briefi ng is necessary to illuminate “the lack of a ‘simple and streamlined’ settlement claims pr ocess which is the underpinning of the district court’s orders.” Id. Since Movants filed their motion for leav e in October 2020, the Kansas district court denied their motions for reconsideration. See In re Syngenta AG MIR 162 Corn Litig. , MDL No. 2591, Doc. 4499 (Mem. an d Order, entered Dec. 2, 2020) Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 174175 (“Reconsideration Order”). 60 While the district court ostensibly found it lacked jurisdiction to consider the reconsideration motions at all, it nonetheless indicated that, had it enjoyed jurisdiction, it would still de ny the motions because they were untimely and, in any case, did not disturb the common be nefits logic undergirding the court’s prior orders. See id. at 7–12; id. at 6 (noting that “the Tenth Ci rcuit has stated that even if a district court lacks jurisdicti on to grant a Rule 60 motion be cause of a pending appeal, it may still consider and deny the motion” (citing Allison v. Bank One-Denver , 289 F.3d 1223, 1243 (10th Cir. 2002))). We see no reason to exercise our disc retion to grant Movants’ request to effectively augment their opening briefs. Mova nts have been on notice of the issues they raise in their reconsideration filings fo r quite some time—and, for our purposes, months before they filed their opening briefs in these appeals. They offer nary a word as to why they were unable to include the substance of their reconsid eration arguments as part of their initial appellate briefing. So, here, we do not allow Mo vants to effectively “amend” their opening briefs and add new issues through supplemental briefing. Cf. Becker v. Kroll , 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is d eemed waived.”).

60 In an exercise of our discretion, we take judicial notice of the Kansas district court’s order. See, e.g. , United States v. Ahidley , 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“Although we are not obliged to do so, we may exercise our discretion to take judicial notice of publicly-filed records in our court and certain ot her courts concerning matters that bear direc tly upon the disposition of the case at hand.”). Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 175176 Finally, we note that Movants’ complain ts about the district court’s purported failure to account for th e extra hours individually retain ed private attorn eys would need to expend are irrelevant to the overall fee allocation framework. As the district court made clear on numerous occasions, and as we have elucidated here in parts of this opinion, the overall fee allocation framework, including the specific f ee allocation to the IRPA pool, was predicated on the contributions specific attorneys or groups of attorneys made toward the Settlement . This was a central facet of the court’s overarching “reasonableness” inquiry. Movants have not expl ained, either before the district court or before us, how these alleged hours more recently expended relate at all to “reasonableness” and why the Ka nsas district court’s failure to anticipate such hours— even if that were true—would u ndermine its allocation decisions. At bottom, Movants could ha ve and should have included these arguments in their opening briefs. They cannot do so now by inaccurately claiming they pertain to “unanticipated” developments. And beyond their tardiness, these arguments are meritless and irrelevant to our review, and they do not hing to cast doubt on the Kansas district court’s fee allocation decisions. Thus, we deny Movants’ motion for leave to file supplemental briefs concerning th eir motions for reconsideration.
3. Toups/Coffman’s Motion to Supplement the Record Lastly, Toups/Coffman filed a motion to supplement the record with documents concerning their contingent-fee agreements. Specifically, Toups/ Coffman attempts to bring forth certain spreadsheets that apparently “combin[e] the source data pertaining to Toups/Coffman’s contingent-fee client contracts . . . that [were] filed [before the Kansas Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 176177 district court].” Toups/Coffman’s Mot. to Supplement the Reco rd, Doc. 010110553968, at 2 (filed Jul. 27, 2021). Toup s/Coffman believe that the spre adsheets are relevant, first, “because they will conclusively show the Court the fees T oups/Coffman, at the very least, are due under the binding Contract s reviewed, approved, and accepted by the [Kansas] Special Master, but whose fee provisi ons were abrogated by the district court,” and, second, because we apparently “noted several times during the oral argument that [we] could not determine what would be a fair fee allocati on until all the information is before the Court.” Id . at 2. We do not generally review documents that were not before the district court. See Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992) (“We will not review this complaint, however, becaus e it was not before the district court when the various rulings at issue were made.”); see also Castner v. Co lo. Springs Cablevision , 979 F.2d 1417, 1423 (10th Cir. 19 92) (“[The party’s] motion to supplement the record is granted insofar as it relates to documents that were before the district court, and denied as to those documents that were not presented to the district court.”). Supplementing the record on appeal is a “rare exception” only available through the exercise of our “inherent equitable power.” United States v. Pickard , 396 F. App’x 568, 572 (10th Cir. 2010) (unpublished) (citing United States v. Kennedy , 225 F.3d 1187, 1192 (10th Cir. 2000)); see Kennedy , 225 F.3d at 1192 (“[U]nder some circumstances, we have an inherent equitable power to supplement the record on appeal .”); 16A Charles Alan Wright et al.,
F EDERAL P RACTICE AND P ROCEDURE § 3956.4 (5th ed.), Westlaw (database updated Apr. 2022) (“In special circumstances, a court of appeals may supplement the record to add Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 177178 material not presented to the district court, though this is rare e nough that many of the decisions noting the court’s power to do so go on to say that the power will not be exercised under the circumstances of the case.”). Here, we find Toups/Coffman ’s motion to be meritless. First—and very simply— the spreadsheets were not filed before the district court. And, following our ordinary practice, that fact, standing alone, provides a sufficient reason to justify our denial of the motion. Second, even if we read our caselaw with an ey e toward providing Toups/Coffman leeway and assu me that the spreadsheets we re “before” the court since they contain information from contingent-fee agreements that the Kansas district court reviewed—a reading of the caselaw that we explicitly note to be somewhat of a stretch bordering on the unreasonable—we still find the motion unavailing in light of the spreadsheets’ irrelevance to our analysis here. See CSX Transp., Inc. v. City of Garden City , 235 F.3d 1325, 1330 (11th Cir. 2000) (“A primary factor which we consider in deciding a motion to supplement the record is whether acceptance of the proffered material into the record would establish be yond any doubt the proper resolution of the pending issues.”); accord Inland Bulk Transfer Co. v. Cummins Engine Co. , 332 F.3d 1007, 1013 (6th Cir. 20 03) (“[W]e need not consider this new information because the point [the plaintiff] is trying to establish with this material . . . is ultimately not material to our legal analysis.”). As Joint Appellees rightly note , “no one asked Toups about the fees they might have received under their contingent fee contracts because that sum is irrelevant to the Court’s disposition of these appeals.” Aplees.’ Resp. to Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 178179 Toups/Coffman’s Mot. to S upplement the Record at 3. We agree with that observation and find the spreadsheets i rrelevant to our review. Third, we take issue with Toups/Coffm an’s insinuation that we requested the spreadsheets or the information therein. We direct Toups/Coffman to the oral argument recording that they themse lves cite; there, we did not inquire—and we expressed no concern—about the possible a ttorneys’ fees award Toups/ Coffman or any other firm would receive under contingent-fee contracts. See Oral Argument, No. 19-3008, at 12:57–13:14; 13:31–13:41; 27: 35–27:41 (10th Cir., dated Marc h 10, 2021). Instead, we asked certain questions as to what effect , if any, the then-pendency of the IRPA allocation had on the case. See id. Thus, for all these reasons, the motion to supplement the record is meritless and

we deny the motion.
III. Conclusion For the reasons provided above, we AFFIRM the district court’s post-judgment attorneys’ fees orders. Appellate Case: 19-3008 Document: 010110819035 Date Filed: 02/28/2023 Page: 179