NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: CATHODE RAY TUBE (CRT) 

ANTITRUST LITIGATION, 

------------------------------

INDIRECT PURCHASER PLAINTIFFS, 

Plaintiff-Appellee, 

 v. 

COOPER & KIRKHAM, P.C., 

Appellant, 

 v. 

TOSHIBA CORPORATION; et al., 

Defendants.

No. 22-16534 

D.C. No. 4:07-cv-05944-JST 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Jon S. Tigar, District Judge, Presiding

Argued and Submitted September 24, 2024 

San Francisco, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

OCT 7 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-16534 

Before: W. FLETCHER and CLIFTON, Circuit Judges, and KATZMANN,**

Judge.

Appellant Cooper & Kirkham, P.C. (“C&K”), counsel for certain indirect 

purchasers of cathode ray tubes in a long-outstanding multidistrict antitrust 

litigation, appeals the district court’s September 27, 2022, order awarding

attorneys’ fees following a settlement between defendant manufacturers and 

indirect purchaser plaintiffs in twenty-two so-called “repealer states.” Because the 

parties are familiar with the facts and procedural history, we do not recount them 

here. We affirm.

1. The factual findings attending the district court’s award of attorneys’ 

fees to C&K were not clearly erroneous. See In re Bluetooth Headset Prods. Liab. 

Litig., 654 F.3d 935, 940 (9th Cir. 2011) (“Findings of fact underlying an award of 

fees are reviewed for clear error.”). 

First, C&K fails to persuade that the district court clearly erred in concluding 

that settling class members would receive benefits later than they would have 

without C&K’s actions. By the terms of the settlement underlying the attorneys’ 

fees award here at issue, the settlement did not become final until the time for 

appeal expired or, if appealed, the court of last resort entered judgment affirming 

** The Honorable Gary S. Katzmann, Judge for the United States Court of 

International Trade, sitting by designation.
3 22-16534 

the settlement in its entirety. The district court granted final approval to the 

settlement on July 13, 2020, and entered final judgment on July 29, 2020. 

Accordingly, the settlement could have become final permitting payments on the 

claims as early as August 2020. However, C&K appealed the settlement approval, 

so that the settlement did not become final until the Supreme Court denied C&K’s

petition for writ of certiorari on June 13, 2022. The district court thus supportably 

found that C&K’s actions delayed the conclusion of the settlement and distribution 

of funds to class members.

Second, C&K fails to establish that the district court clearly erred in 

concluding that C&K’s actions worked against the settling class members’ 

interests and put the settlement at risk. At one point, C&K requested that the 

district court “vacate all orders and judgment . . . approving” a prior version of the 

settlement. Had the district court done so, the settlement terms would have 

required a return to defendant manufacturers of the settlement funds in escrow as 

well as the interest accrued. After that request was denied by the district court, 

C&K pursued its appeal. Releasing the settlement funds from escrow would render 

their future availability to settling class members less certain and the attendant loss 

of accrued interest would not have benefitted the class. The settlement itself, on 

terms that appeared favorable to class members, might have been lost. Thus, the 

district court did not clearly err in concluding that C&K worked against the settling 
4 22-16534 

class members’ interests by putting the settlement at risk.

2. The district court also allocated fees in accordance with applicable 

legal principles. “It is well established that an award of attorneys’ fees from a 

common fund depends on whether the attorneys’ ‘specific services benefited the 

fund—whether they tended to create, increase, protect or preserve the fund.’” In re 

FPI/Agretech Sec. Litig., 105 F.3d 469, 473 (9th Cir. 1997) (quoting Class

Plaintiffs v. Jaffe & Schlesinger, P.A., 19 F.3d 1306, 1308 (9th Cir. 1994)). The 

district court supportably found that C&K’s actions had the effect of delaying the 

distribution of settlement funds and putting the settlement at potential risk. In 

granting final approval to the renegotiated settlement, the district court effectively 

vacated its initial fee award allocation. C&K thus no longer had a claim to the 

amount of the fee award it was granted prior to this court’s original remand. See 

Camreta v. Greene, 563 U.S. 692, 713 (2011) (“Vacatur . . . strips the decision 

below of its binding effect, and clears the path for future relitigation.” (internal 

citations omitted)). Consistent with this court’s precedent on fee allocations, see In 

re FPI, 105 F.3d at 473, the district court did not abuse its discretion when it

concluded that a lesser fee award was appropriate for counsel whose actions

threatened the availability of settlement funds and delayed payments to class 

members.

C&K’s insistence that it “was not working against the settling class 
5 22-16534 

members, it was working for the non-settling class members” in the non-repealer 

states is beside the point. As the district court correctly noted, the indirect 

purchaser plaintiffs from the non-repealer states “are not part of the settlement at 

issue here, and the fee awards . . . are not intended to compensate counsel for work 

performed on [their] behalf.” C&K’s policy arguments as to why it should not be 

“sanctioned” for its efforts on behalf of the non-repealer state plaintiffs are 

unpersuasive. C&K was not involuntarily assigned to be lead counsel for the nonrepealer state plaintiffs. C&K decided to take action to assume that role, despite 

significant reasons to doubt the value of the non-repealer state plaintiffs’ claims, 

even going so far as to, in the words of the district court, “no longer represent a 

repealer state plaintiff” in order to assuage “the Court’s previously-expressed 

concerns about a potential conflict.” That action illustrated C&K’s awareness that 

vigorous pursuit on behalf of the non-settling class members could conflict with 

the interests of the settling class members. C&K made a decision in seeking to 

represent the non-repealer state plaintiffs. Sometimes decisions by counsel prove to 

be unlucrative. That does not render the district court’s fee allocation unjust or 

unreasonable. See In re FPI, 105 F.3d at 475.

1

AFFIRMED. 

1 The unopposed motion for judicial notice, filed February 1, 2024 (Docket No. 

38), is granted.