[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-10667

____________________

NORTHEASTERN ENGINEERS FEDERAL 

CREDIT UNION, 

PITTSFIELD COOPERATIVE BANK, 

PHENIX-GIRARD BANK, 

KELSEY O'BRIEN, 

FIRST FINANCIAL CREDIT UNION, 

et al.,

Plaintiffs-Appellees,

versus

HOME DEPOT, INC., 

THE HOME DEPOT U.S.A., INC., 

Defendants-Appellants.

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2 Opinion of the Court 20-10667

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:14-md-02583-TWT

____________________

Before WILSON, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:

In a previous appeal in this class action, In re Home Depot 

Inc., Customer Data Security Breach Litigation (Home Depot I), 

931 F.3d 1065, 1072 (11th Cir. 2019), we considered Home Depot’s 

challenge to the attorney’s fee the District Court awarded to Class 

Counsel pursuant to a fee-shifting provision contained in the parties’ court-approved settlement agreement. The District Court 

awarded an attorney’s fee of $15.3 million. It did so by multiplying 

a lodestar amount of $11.733 million by a multiplier of 1.3; the multiplier was to compensate Class Counsel for the risk they undertook in representing the plaintiff class. We affirmed the lodestar 

amount but reversed the District Court’s use of the multiplier to 

enhance it. We therefore remanded the case for the award of an 

attorney’s fee of $11.733 million.

On remand, the District Court awarded Class Counsel an attorney’s fee of $14.1 million, which was thirty-three percent of the 

benefit the class purportedly received pursuant to the settlement 

agreement. The law of the case doctrine and Home Depot I’s mandate precluded the District Court from awarding Class Counsel an 

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20-10667 Opinion of the Court 3

attorney’s fee other than the $11.733 million lodestar plus interest. 

We therefore remand the case and instruct the District Court to 

enter an order requiring Home Depot to pay Class Counsel the 

sum of $11.733 million plus interest from the date of the amended 

fee award. 

I. 

Our opinion in Home Depot I sets out the facts in full, so we 

provide an abbreviated version here. Between April 2014 and September 2014, Home Depot was the subject of a massive data 

breach. Hackers stole the debit and credit card information of approximately 56 million Home Depot customers and sold that information to thieves who then made thousands of fraudulent transactions using the customers’ credit and debit card numbers. Id at 

1076.

Following the data breach, the customers and the financial 

institutions that issued the compromised cards filed a series of class 

actions, alleging that Home Depot failed to secure its customers’ 

data. Id. The United States Panel on Multidistrict Litigation consolidated the actions in the Northern District of Georgia, where the 

District Court split the litigation into two separate tracks: a consumer track and a bank track. Id. Home Depot I involved the socalled “bank track” comprised of a number of different financial institutions. Id.

In brief, the Class Representatives and Home Depot reached 

a settlement agreement, and the District Court approved it. Id. at 

1075. As part of the agreement, Home Depot agreed to pay Class 

Counsel “reasonable attorneys’ fees, costs, and expenses” as 

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determined by the District Court. Id. The agreement, however, 

did not specify what a “reasonable” fee would be. Id. Nor did it 

specify the method the District Court should use in determining 

the fee. 

Once the District Court approved the settlement agreement, Class Counsel moved the court for an attorney’s fee award 

of $18 million. Class Counsel argued that this amount was reasonable under either the percentage method or the lodestar method 

and did not take a stance on which method the District Court 

should use.1 Home Depot I, 931 F.3d at 1076. Home Depot, on 

1 Ordinarily, there are two methods for calculating attorney’s fees in class actions: the percentage method and the lodestar method. The percentage 

method is ordinarily used in “common fund” cases; the court awards the attorney’s fee based on a percentage of the common fund. See Camden I 

Condo. Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991). The common fund

consists of any benefits resulting from the litigation that flow to the class members. This benefit includes the funds ultimately used to pay the class members’ 

attorney’s fee. Id.

The lodestar method is used in “fee-shifting” cases; the court awards 

the attorney’s fee pursuant to a contract between the parties, as in the instant 

case, or pursuant to statute. Home Depot I, 931 F.3d at 1081-82; see, e.g., 42 

U.S.C. § 1988. Under this method, the court awards class counsel an attorney’s 

fee based on the hours reasonably spent on the case; the court multiplies the 

number of reasonable hours times a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). Importantly, the defendant pays the attorney’s fee using its own funds rather than the common 

fund received by the class members. See Home Depot I, 931 F.3d at 1079.

To reach $18 million under the lodestar method, Class Counsel suggested a lodestar of $11.733 million and a multiplier of 1.53. To get to $18 

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20-10667 Opinion of the Court 5

the other hand, argued that the Court was required to use the lodestar method and suggested that a fee of $5.6 million was reasonable. Id.

The District Court found that the lodestar approach was the 

proper method of calculating attorney’s fees and accepted the lodestar proposed by Class Counsel. Id. To account for the “exceptional litigation risk that class counsel took in litigating this case,” 

the Court then applied a multiplier of 1.3 to arrive at a total fee 

award of $15.3 million. Id. As a means of justifying the $15.3 million award, the District Court compared, i.e., “cross-checked,” that 

award with the attorney’s fee it would have awarded Class Counsel 

under the percentage method (had it decided the percentage 

method was the appropriate method). Id. at 1076–77. According 

to the cross-check, the Court would have awarded Class Counsel 

$14.1 million, one-third of an estimated $42.5 million common 

fund.2 In short, the attorney’s fee the Court awarded, $15.3 

million under the percentage method, Class Counsel suggested that the class 

benefit was $60.85 million and that 29.7% of that totaled $18 million. 

2 In Home Depot I, we noted that “[c]ourts often use a cross-check to ensure 

that the fee produced by the chosen method is in the ballpark of an appropriate 

fee.” 931 F.3d at 1091 (citing In re Gen. Motors Corp., 55 F.3d 768, 820 (3d Cir. 

1995)). We also noted that it is not necessary to use a cross-check in a feeshifting case like this and that in most fee-shifting cases doing so is not viable. 

Id. at 1091 n. 25. Indeed, a closer look at the use of percentage cross-checks 

shows that “the circumstances in which the percentage cross-check may be 

logically deployed are so few that the term itself can be found in only about a 

dozen cases.” 5 William B. Rubenstein, Newberg on Class Actions § 15:92. 

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6 Opinion of the Court 20-10667

million, exceeded the fee it would have awarded had it used the 

percentage method. 

Home Depot appealed the District Court’s attorney’s fee 

award, arguing that the attorney’s fee award was excessive and 

therefore not “reasonable” within the meaning of the attorney’s fee 

provision of the settlement. See id. at 1077–1078. It was excessive, 

Home Depot contended, because the District Court (1) included 

time Class Counsel spent on unrelated matters3 and (2) erroneously 

applied a “multiplier” to the lodestar to account for Class Counsel’s 

risk in undertaking the plaintiffs’ representation. Id.

Class Counsel countered Home Depot’s arguments head on 

and defended the District Court’s attorney’s fee decision. Class 

Counsel also filed a “conditional cross-appeal” in which they challenged the District Court’s application of the percentage crosscheck. Id. at 1078. Class Counsel asked that if we reversed or modified the attorney’s fee award and remanded the case for reconsideration, we instruct the District Court to include the fee award in 

the class benefit when performing the cross-check of a new lodestar. Id.

3 Specifically, Home Depot argued that Class Counsel should not have been 

given credit for hours spent opposing Home Depot’s attempts to secure releases from the smaller financial institutions or in soliciting class representatives. More generally, Home Depot also argued that the District Court failed 

to provide sufficient detail in its fee award to allow for meaningful review. 

Home Depot did not dispute the rates requested by Class Counsel.

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20-10667 Opinion of the Court 7

On July 25, 2019, this Court issued an opinion affirming the 

District Court’s attorney’s fee award “in all respects except one.” 

Id. at 1072. We found no error in the District Court’s calculation 

of the lodestar of $11.733 million and therefore affirmed its use in 

fixing the attorney’s fee award. Id. at 1086–91. But we found error 

in the Court’s use of the 1.3 multiplier to compensate Class Counsel for the risk in undertaking the plaintiffs’ representation because 

the lodestar already took such risk into account. Id. at 1085 (citing 

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553, 130 S. Ct. 1662, 

1673 (2010)). Compensating Class Counsel for risk via the multiplier would have resulted in a windfall to Class Counsel. Id. As for 

Class Counsel’s conditional cross-appeal, we found no error in District Court’s calculation of the class benefit in cross-checking its 

$15.3 million attorney’s fee award.4 Id. at 1091–93. We then remanded the case for “further proceedings consistent with [our]

opinion.” Id. at 1094. 

Following our decision, Class Counsel and Home Depot disagreed as to Home Depot I’s holdings and the District Court’s task 

on remand. Home Depot contended that we affirmed the $15.3 

million attorney’s fee award with one exception: the District Court 

erred in enhancing the $11.733 million lodestar with a 1.3 multiplier. The District Court’s task on remand was ministerial: enter 

judgment for Class Counsel for $11.733 million plus interest. 

4 Actually, whether or not the District Court erred was of no moment because 

the District Court was not required to conduct a cross-check in the first place.

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Class Counsel contended that we vacated the attorney’s fee 

award in its entirety and remanded the case with the instruction 

that the District Court redetermine the attorney’s fee from scratch. 

Class Counsel read our opinion as holding that the District Court’s 

error in applying the 1.3 multiplier somehow rendered its correct 

application of the lodestar infirm and therefore required the vacation of the attorney’s fee award entirely.5 

According to Class Counsel, we left the District Court free 

to assess the attorney’s fee pursuant to the lodestar method or the 

percentage method. If the Court fixed the fee pursuant to the lodestar method, the law of the case doctrine precluded it from using a 

multiplier to compensate Class Counsel for the risk it undertook in 

representing the plaintiff class. If the Court fixed the fee pursuant 

to the percentage method, it should assume a class benefit of $42.5 

million (the benefit the Court calculated earlier in cross-checking 

its original $15.3 million fee award) and award an attorney’s fee of 

one-third of that benefit, i.e., $14.1 million. 

The District Court chose the percentage method Class 

Counsel proffered. The Court awarded Class Counsel $14.1 million plus interest from the date of the $15.3 million fee award, for 

a total of $14,532,418.31, and entered an order accordingly. 

Home Depot now appeals the District Court’s new fee 

award. Home Depot argues the increased fee award should be reversed with instructions that the District Court award Class 

5 Class Counsel thereby implied that we would have affirmed the attorney’s 

fee award had the District Court not erred by applying the multiplier. 

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20-10667 Opinion of the Court 9

Counsel attorney’s fees in the sum of $11.733 million plus interest. 

Class Counsel disagrees and defends the District Court’s new fee 

award.

II.

A.

The law of the case doctrine holds that “the findings of fact 

and conclusions of law by an appellate court are generally binding 

in all subsequent proceedings in the same case in the trial court or 

on a later appeal.” Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 

1990) (internal quotation mark omitted). And “while the doctrine 

encompasses only those issues previously determined, . . . the law 

is clear that it comprehends things decided by necessary implication as well as those decided explicitly.” Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (emphasis in original) (internal citations and quotations omitted) (collecting cases).

On remand, in addition to applying the law of the case, the 

trial court must “implement both the letter and the spirit of the 

[appellate court’s] mandate.”6 Piambino v. Bailey, 757 F.2d 1112, 

6 The “mandate rule” is simply a “specific application of the ‘law of the case’

doctrine.” Piambino, 757 F.2d at 1120 (citing Greater Boston Television Corp. 

v. Fed. Commc’ns Comm’n, 463 F.2d 268, 279 (D.C. Cir. 1971), cert denied, 

406 U.S. 950, 92 S. Ct. 2402 (1972)). It “stands for the proposition that an appellate decision on an issue must be followed in all subsequent trial court proceedings unless the presentation of new evidence or an intervening change in 

the controlling law dictates a different result, or the appellate decision is clearly 

erroneous and, if implemented, would work a manifest injustice.” Id. (citing 

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1119 (11th Cir. 1985) (citing Nixon v. Richey, 513 F.2d 430, 435–36 

(D.C. Cir. 1975), aff’d on other grounds, 433 U.S. 425, 97 S. Ct. 2777 

(1977)). Thus, the trial court “may not alter, amend, or examine 

the mandate, or give any further relief or review, but must enter 

an order in strict compliance with the mandate.” Id. (citing In re 

Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S. Ct. 291, 293 

(1895)). One final point: the mandate is, by necessity, responsive 

to the issues presented on appeal and resolved. See id.

We look to the parties’ briefs for the issues they presented 

to the Home Depot I panel. Home Depot essentially presented 

one issue: whether the attorney’s fee award was excessive. Home 

Depot argued that it was excessive on two grounds.7 First, the District Court erred when it included in the lodestar the hours Class 

Counsel spent soliciting plaintiffs and opposing the card-brand recovery process. Home Depot I, 931 F.3d at 1087–88. Second, the 

District Court erred in using a multiplier to account for Class Counsel’s risk in taking the case. Id. at 1082. Class Counsel disagreed. 

They argued that the attorney’s fee was not excessive—that the 

District Court did not err in calculating the lodestar or in applying 

the multiplier. 

Westbrook v. Zant, 743 F.2d 764, 768–69 (11th Cir. 1984); Baumer v. United 

States, 685 F.2d 1318, 1320 (11th Cir. 1982)).

7 Home Depot also questioned whether the District Court’s ruling was amenable to appellate review. Home Depot I, 931 F.3d at 1088. We found this 

argument to be without merit. Id. at 1091.

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In Home Depot I, we rejected the first ground of Home Depot’s excessiveness argument but sustained its second ground. Id. 

at 1086, 1088. We therefore affirmed the attorney’s fee award “in 

all respects except one”: the enhancement of the $11.733 million 

lodestar via the 1.3 multiplier. Id. at 1072. We held that in a feeshifting case like this one, it is inappropriate to use a multiplier to 

account for risk. See id. at 1085 (noting that one reason the Supreme Court has limited the use of multipliers to rare circumstances is because it leads to a windfall for attorneys). The inappropriate enhancement of the lodestar via the 1.3 multiplier, however, 

did not render the lodestar infirm. To the contrary, we found the 

lodestar fully supported by the record. See id. at 1088. The lodestar 

represented a reasonable fee under the fee-shifting provision of the 

settlement agreement. The District Court erred in disregarding 

that implicit holding, which was included in the law of the case, 

and in opting to award an attorney’s fee pursuant to the percentage 

method. The Court should have awarded the fee called for by the 

lodestar sans multiplier.8 

B.

As a final matter, we address the issue of interest. On remand, the District Court awarded Class Counsel interest on the 

$14.1 million percentage cross-check award from the date of the 

8 This is a task we have asked district courts to perform previously. See, e.g.,

McKenzie v. Cooper, Levins & Pastko, Inc., 990 F.2d 1183, 1186 (11th Cir. 

1993) (reversing the fee award only insofar as it included a multiplier).

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12 Opinion of the Court 20-10667

original fee award (October 11, 2017). Home Depot argues that 

the District Court erred. We look first to the settlement agreement. The settlement agreement states that “[i]f an appeal is taken 

from an order approving Class Counsel’s fee request, Home Depot 

will pay interest on the amount awarded, as ultimately approved 

or reduced on appeal, at the same rate as applicable to any final 

judgment.” This language thus directs the rate that should be used 

to calculate the interest but does not designate at what date the 

interest should begin to accrue. 

We therefore turn to the Federal Rules of Appellate Procedure. Rule 37 governs the award of postjudgment interest by a district court after an appeal. See Fed. R. App. P. 37. When the appellate court affirms “a money judgment in a civil case,” postjudgment interest “is payable from the date when the district court’s 

[original] judgment was entered,” unless the law provides otherwise. Fed. R. App. P. 37(a). If the appellate court modifies or reverses a judgment, as was the case here, the mandate “must contain instructions about the allowance of interest.” Fed. R. App. P. 

37(b). If the mandate is silent on the issue of interest, “the district 

court on remand [has] no choice but to begin postjudgment interest on the date of the amended judgment.” SEB S.A. v. Sunbeam 

Corp., 476 F.3d 1317, 1319 (11th Cir. 2007). Because we did not 

provide instructions regarding interest in our prior opinion, the 

District Court was required to award interest from the date of the 

amended fee award (January 23, 2020).

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20-10667 Opinion of the Court 13

III. 

For the forgoing reasons, we vacate the District Court’s order and remand with instructions that the District Court award 

Class Counsel attorney’s fees in the original lodestar amount of 

$11,773,932 plus interest from January 23, 2020. 

VACATED AND REMANDED 

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