* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NORMAN LAW, et al., individually and on behalf of all others similarly situated; DOUG SCHREIBER, et al., individually and on behalf of all others similarly situated, Plaintiffs-Appellees, COTKIN & COLLINS and MORRISON & HECKER,

Appellees,

v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Defendant-Appellee, GERALD I. ROTH,

Movant-Appellant. No. 99-3353 (D.C. No. 94-CV-2053-KHV)

(D. Kan.)

ORDER AND JUDGMENT *-2-

Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant Gerald Roth was an attorney of record forplaintiffs in the two underlying class action antitrust suits against the NCAA. Appellees, two law firms, also represented the plaintiff classes. Whe n the two suits settled, appellees moved for an award of attorneys’ fees and expenses, requesting a combined fee award for all counsel of one-third of the common fu nd created by the settlement. In their motion, appellees noted that they could no t reach an agreement with appellant about the apportionment of the requested combined fees. Appellees further stated they would rely on the court to awar d appellant a reasonable amount of fees, and suggested an amount equal to the fees appellant sought in an interim fee application. Appellant’s App. at 291, 308-09. Appellant filed his own motion with the district court , supporting appellees’ request for a combined fee award of one-third of the common fund, but disagreeing with their proposed apportionment. The district court held a hearing on the matter, and awarded appellan t the amount-3-

suggested by appellees, offset by an amount paid onan earlier interim fee application. Appellant challenges the district court ’s ruling on appeal. This court asked the parties to brief the issue of appellant’s standing to bring this appeal, in light of Howard v. Mail-Well Envelope Co. , 150 F.3d 1227 (10th Cir. 1998), and Uselton v. Commercial Lovelace Motor Freight, Inc. , 9 F.3d 849 (10th Cir. 1993). Appellant contends that thes e cases are distinguishable, and that he has standing because he is directly aggriev ed by the district court’s order. Appellees argue that appellant has standing only to challenge the combined fees award of one-third of the common fund, which he has not done. They further assert that he cannot challenge the apportionment o f the combined award because he lacks standing to argue that the fees awarded to appellees are too high. We agree with appellant that he has standing here. Appellees’ argument that appellant has standing only to challenge the c ombined fee award contradicts this court’s ruling that only aggrieved parties hav e standing to appeal from a fee award coming directly out of the common fund. See Uselton , 9 F.3d at 855. Appellant is not aggrieved by the combined fee awar d and does not seek to challenge it. Appellees’ second argument, that app ellant doesn’t have standing to challenge the fees apportionment because it would a ffect the amount of fees awarded to them lacks merit because it goes againstthe premise that counsel have standing to appeal from orders which are issued directly against them. See Weeks1 Because appellant’s contentions on appeal are basedon the reasoning and

analysis of the district court in the hearing on attorneys’ fees, our review of h is claims would not have been possible without a trans cript of that hearing. Appellant failed to include a transcript in his appendix. Cf. King v. Unocal Corp. , 58 F.3d 586, 587 (10th Cir. 1995) (“It is the appel lant’s responsibility to provide us with a proper record on appeal.”). However, bec ause appellees attached a copy of the transcript to their jurisdictional brief, we were able to perform the necessary review. -4- v. Indep. Sch. Dist. No. I-89, 230 F.3d 1201, 1207 (10th Cir. 2000); Uselton, 9 F.3d at 854. We exercise jurisdiction over this ap peal pursuant to 28 U.S.C. §
1291. See First Nat’l Bank of Turley v. FDIC , 196 F.3d 1186, 1187 (10th Cir. 1999). The parties also differ about the standard of revie w applicable to the district court ’s apportionment of attorneys’ fees. Appellant characterizes his challenge to the district court ’s ruling as a legal issue of first impression in this circuit and contends that we should exercise plenary review. Quoting from the hearing transcript, 1 appellant contends the district court erred when it concluded that certain of his efforts and activities in conne ction with the class action suits, such as class communications, lobbying, and press r eleases, were not compensable. See Appellant’s Br. at 9-10 (quoting Tr. at 40-41). We disagree that appellant’s challenge is a legal o ne. “To recover fees from a common fund, attorneys must demonstrate thattheir services were of some benefit to the fund or enhanced the adversarial process.” Petrovic v. Amoco Oil-5-

Co. , 200 F.3d 1140, 1156 (8th Cir. 1999). Review of the entire hearing transcript reveals that, prior to the comment on which appella nt relies, the district court read from an order it had been prepared to enter on appe llant’s second interim fee application just prior to the cases’ settlement. T herein, the court found: “the record contains no credible evidence that such acti vities resulted in any substantial benefit to the plaintiff classes in thi s litigation.” Tr. at 32. It is clear that the district court’s analysis and rejection of appellant’s fee request for these activities proceeds from this conclusion. Therefor e, despite its later comments that such activities were not compensable, and contrary to appellant’s argument, it is clear that the district court considered these activities and concluded appellant deserved no compensation for them--a determination left to the court’s discretion. “In class actions, the district court has broad authority over awards of attorneys’ fees; therefore, our review is for an abuse of discretion.” Hayes v. Haushalter (In re FPI/Agretech Sec. Litig.) , 105 F.3d 469, 472 (9th Cir. 1997). A court can abuse its discretion if its rulings are based on an erroneous legal conclusion or lack rational support in the record. Id. Appellant argues that, in light of his efforts in originating the litigation and other contributions, his fee award was too small in comparison with that given t o appellees. Our review of the hearing transcript leads us to conclude that the district court’s findings were-6-

amply supported and therefore the court did not abuse its discretion in determining the amount of fees to be awarded appell ant. Nor did the court’s award based on the amount sought in appellant’s second interim fee application constitute use of a fee-shi fting analysis, as appellant further contends. It is clear from the hearing tra nscript that the court intended to deny appellant’s second interim fee application in its entirety. Tr. at 32. The district court further stated its opinion that appellees’ suggest ion to award appellant the amount of the second interim fee appl ication was “incredibly generous.” Id . at 33. Accordingly, although it concluded the am ount requested in appellant’s interim fee application was a reasonabl e final attorneys’ fee award, the court did not “essentially determin[e] that [ap pellant] should be compensated on the basis of the hours he submitted to the courtto justify interim compensation,” as appellant asserts. Appellant’s B r. at 14. Therefore, the court did not impermissibly set off against this final aw ard the amount that appellant had been paid on his first interim fee application. We reject appellant’s argument that he should benef it from the treble damages provisions of the antitrust statute. The u nderlying cases were settled; there was no damages award here and therefore no ap plication of the treble damages provisions. Appellant also argues that a l arger fee award would be “mandated” had the district court properly considered the factors set out in-7-

Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 717-19 (5th Cir. 1974); see Gottlieb v. Barry , 43 F.3d 474, 482 n.4 (10th Cir. 1994) (listing fa ctors); Appellant’s Br. at 16. Although the district court did not expressly address the factors, the hearing transcript demonstrates that i t considered fully the nature, extent, and value of appellant’s contributions to t he underlying lawsuits, matters which include and define many of the Johnson factors. “We have never held that

a district court abuses its discretion by failing to specifically a ddress each Johnson factor.” Gudenkauf v. Stauffer Communications, Inc. , 158 F.3d 1074, 1083 (10th Cir. 1998). We agree with appellees that reasonableness is the goal of attorneys’ fees awards, see Gottlieb , 43 F.3d at 482. Appellant has not demonstrated that the fee awarded him was unreasonable in light of the district court ’s findings and other evidence in the record. The judgment of the United States District Court for the District of Kansas is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge