PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CHIEFTAIN ROYALTY COMPANY, Plaintiff - Appellee,

v. ENERVEST ENERGY INSTITUTIONAL FUND XIII-A, L.P.; ENERVESTENERGY INSTITUTIONAL FUND XIIIWIB, L.P.; ENERVEST ENERGY INSTITUTIONAL FUND XIII-WIC, L.P.; ENERVEST OPERATING, L.L.C.; FOURPOINT ENERGY, L.L.C., Defendants - Appellees, and SM ENERGY COMPANY, (including predecessors, successors and affiliates), Defendant.

------------------------------ DANNY GEORGE, personally and as Executor of the Esta te of Beverly Joyce George, Objector - Appellant.

––––––––––––––––––– –––––––––––––––– CHIEFTAIN ROYALTY COMPANY, Plaintiff - Appellee, No. 16-6022 (D.C. No. 5:11- CV-00177-D) (W.D. Okla.) FILED United States Court of Appeals Tenth Circuit 

### April 11, 2018
Elisabeth A. Shumaker Clerk of Court2 v. ENERVEST ENERGY INSTITUTIONAL FUND XIII-A, L.P.; ENERVESTENERGY INSTITUTIONAL FUND XIIIWIB, L.P.; ENERVEST ENERGY INSTITUTIONAL FUND XIII-WIC, L.P.; ENERVEST OPERATING, LLC; FOURPOINT ENERGY, LLC, Defendants - Appellees, and SM ENERGY COMPANY, including predecessors, successors and affiliates, Defendant.

------------------------------ CHARLES DAVID NUTLEY, Objector - Appellant. No. 16-6025 (D.C. No. 5:11- CV-00177-D) (W.D. Okla.)

________________ _________________ ORDER

________________ _________________ Before HARTZ and HOLMES , Circuit Judges.

________________ _________________ These matters are before the cour t on Chieftain Royalty Company’s Petition for Rehearing and Rehe aring En Banc. We also have a joint res ponse from the appellants. Upon consideration, the request for panel rehearing is denied by the original panel members. We have, however, am ended the original opinion sua sponte . The amendments are limited, and have been made at pages 12 and 26 of the decision. A copy of the revised3 Opinion is attached to this order. The Clerk is directed to vacate the prior Opinion and to file the attached revised decision nunc pro tunc to the original filing date of July 3, 2017. The Petition and response, as well as the amic i briefs on rehearing, were also circulated to all the judges of the court who are in regular active service and who are not recused. See Fed. R. App. P. 35(a). As neither ju dge on the original panel nor any judge in regular active service asked that a poll be called, the request for en banc rehearing is likewise denied.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkPUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CHIEFTAIN ROYALTY COMPANY, Plaintiff - Appellee,

v. ENERVEST ENERGY INSTITUTIONAL FUND XIII-A, L.P.; ENERVESTENERGY INSTITUTIONAL FUND XIIIWIB, L.P.; ENERVEST ENERGY INSTITUTIONAL FUND XIII-WIC, L.P.; ENERVEST OPERATING, L.L.C.; FOURPOINT ENERGY, L.L.C., Defendants - Appellees, and SM ENERGY COMPANY, (including predecessors, successors and affiliates), Defendant.

------------------------------ DANNY GEORGE, personally and as Executor of the Esta te of Beverly Joyce George, Objector - Appellant.

––––––––––––––––––– –––––––––––––––– CHIEFTAIN ROYALTY COMPANY, Plaintiff - Appellee, No. 16-6022 FILED United States Court of Appeals Tenth Circuit 

### July 3, 2017
Elisabeth A. Shumaker Clerk of Court2 v. ENERVEST ENERGY INSTITUTIONAL FUND XIII-A, L.P.; ENERVESTENERGY INSTITUTIONAL FUND XIIIWIB, L.P.; ENERVEST ENERGY INSTITUTIONAL FUND XIII-WIC, L.P.; ENERVEST OPERATING, LLC; FOURPOINT ENERGY, LLC, Defendants - Appellees, and SM ENERGY COMPANY, including predecessors, successors and affiliates, Defendant.

------------------------------ CHARLES DAVID NUTLEY, Objector - Appellant. No. 16-6025

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:11-CV-00177-D)

________________ _________________ John J. Pentz, Sudbury, Massachusetts, for Objector-Appellant Danny George. Eric Alan Isaacson, La Jolla, California (C. Benjamin Nutley, Pasadena, California, and John W. Davis, San Diego, California, w ith him on the briefs), for Objector-Appellant Charles David Nutley. Daniel S. Volchok, WilmerHale, Washingt on, D.C. (Bradley E. Beckworth, Susan Whatley, and Jeffrey J. Angelo vich, Nix, Patterson & Roach, LLP, Austin, Texas, and Robert N. Barnes, and Patranell Britten Lewi s, Barnes & Lewis, LLP, Oklahoma City, Oklahoma, on the briefs), for Plainti ff-Appellee Chieftain Royalty Company.3 Mark D. Christiansen, McAfee & Taft, P.C ., Oklahoma City, Oklahoma, for DefendantsAppellees, Enervest Energy Ins titional Fund XIII-A, L.P., et al.

________________ _________________ Before HARTZ and HOLMES , Circuit Judges. 

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ After settlement of a class action for r oyalties from gas wells, the United States District Court for the Western District of Oklahoma awarded attorney fees to class counsel and an incentive award to the lead plaintiff to be paid out of the common fund shared by class members. The court rejected claims by two objectors, and they appealed. Exercising jurisdiction under 28 U.S.C. § 12 91, we reverse and remand. The district court failed to compute attorney fees under th e lodestar method, as required by Oklahoma law in this diversity case, and the incen tive award is unsupport ed by the record.
I. BACKGROUND The underlying class acti on alleged underpayment of royalties by the defendants on gas from wells in Oklahoma. The parties reached a settlement for a cash payment of $52 million, to be distributed pro rata to th e class members after payment of expenses and fees. Class counsel moved for attorney fees in the amount of 40% of the settlement fund,

 The Honorable Neil Gorsuch pa rticipated in the oral argum ent but not in the decision. The practice of this court permits the remaini ng two panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles , 106 F.3d 1516, 1516, n.*(10th Cir. 1997) ( noting that this court allows remaining panel judges to act as a quorum to resolve an appeal). In this ca se, the two remaining panel members are in agreement.4 plus interest; and the lead plaintiff, Chieft ain Royalty Company, requested an incentive award of 1% of the fund. Appellants Charle s David Nutley and Dann y George were class members who objected to these requests. After a hearing on the settlement and fee requests, the court awarded class counsel 33 1/3% of the fund ($17,333.333.33) as attorney fees and awarded Chieftain 1/2% of th e fund ($260,000) as an incentive award. The objectors appealed each award. We address them in turn.
II. ATTORNEY FEE There are two primary methods for dete rmining attorney-fee awards in commonfund class-action cases. The first is the percentage-of-the-fund method, which awards class counsel a share of the benefit achieved for the class. See Newberg on Class Actions § 15:63 (5th ed. 2016) (Newberg). Many cour ts, including this circuit, consider 12 factors to determine the appropriate percentage. See Gottlieb v. Barry , 43 F.3d 474, 482 & n.4 (10th Cir. 1994). These f actors were first set forth in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 717–19 (5th Cir. 1974 ), which was not a common-fund case. We have stated the factors as: the time and labor required, the nove lty and difficulty of the question presented by the case, the skill requi site to perform the legal service properly, the preclusion of other employment by the attorneys due to acceptance of the case, the customary fee, whether the fee is fixed or contingent, any time limitations imposed by the client or the circumstances, the amount involved and the results obtained, the experience, reputation and ability of the attorney s, the “undesirability” of the case, the nature and length of the professional re lationship with the client, and awards in similar cases. See Gottlieb , 43 F.3d at 482 n.4. The second method is the lodestar approach. The court first determines the lodestar by multiplying the number of hours reasonably spent on the5 litigation by a reasonable hourly rate. See Anchondo v. Anderson, Crenshaw & Assocs.
LLC , 616 F.3d 1098, 1102 (10th Cir. 2010). This “produces a presumptively reasonable fee,” but it “may in rare circum stances be adjusted to account for the pr esence of special circumstances.” Id. This court has approved both methods in common-fund cases, although expressing a preference for the percenta ge-of-the-fund approach. See Gottlieb , 43 F.3d at 483 (“In our circuit, following Brown [ v. Phillips Petroleum Co. , 838 F.2d 451 (1 0th Cir. 1988),] and Uselton [ v. Commercial Lovelace Motor Freight, Inc. , 9 F.3d 849 (10th Cir. 1993)], either method is permissible in common fund cases; however, Uselton implies a preference for the percentage of the fund meth od.”). Our approach al so “has been called a ‘hybrid’ approach, combining the percenta ge fee method with the specific factors traditionally used to calculate the lodestar.” Id. at 482–83. The district court chose the percentage-of-the -fund analysis, explaining that this is “[t]he preferred method of determining a r easonable attorney fee award in common fund cases.” JA at 523 (Dist. Ct. Order). It overrule d the objectors’ argument that the lodestar approach should govern and that the fee is excessive under that analysis. The court stated that “[b]oth state and federal cases recognize and/or permit a percenta ge of fund recovery under the common fund doctrine.” Id. It added that in any event, the result would not have differed under a lodestar analysis, c iting Newberg on Class Actions § 14.6 at 551 (4th ed. 2002), for the proposition that empirical studies show that the av erage fee award is about one-third of the recove ry, whichever method is used. See id. at 524.6 Although a contingency-fee agreement allo wed class counsel to recover 40% of any common-fund recovery, the di strict court ruled that “in fairness and consistent with the best interest of the Class,” counsel sh ould recover 33 1/3% of the settlement. Id. at 523. It stated that an award of that percen tage was not unusual, pointing out that “[t]he Tenth Circuit has previously identified th e typical fee range as 23.7% to 33.7%.” Id. at 526 (citing Brown , 838 F.2d at 455 n.2). It then recited the Johnson factors and found that “most, if not all, . . . support Class C ounsel’s fee request, as reduced by the Court.” Id. It explained: Class Counsel has conducted the Litigation and achieved the Settlement with skill, perseverance and diligent advocacy; The Litigation involved co mplex factual and legal issues and was actively prosecuted for over four years; Had Class Counsel not achieved th e Settlement, there would remain a significant risk that Class Represen tative and the other members of the Settlement Class may have recovere d less or nothing from the Settling Parties; Class Counsel devoted substantial time and resources to achieve the Settlement. Id. (internal numbering removed). The court adde d that its award was informed by “[t]he market rate for Class Coun sel’s legal services.” Id. at 528. We review a district court’s award of a ttorney fees for abuse of discretion. See Gottlieb , 43 F.3d at 486. This includes review de novo of the legal principles underlying the fee award—such as the choice of wh ether to apply state or federal law. See Rosenbaum v. Macallister , 64 F.3d 1439, 1444 (10th Cir. 1995); see also Cooter & Gell7 v. Hartmarx Corp. , 496 U.S. 384, 405 (1990) (district court abuses its discretion in Rule 11 determination if ruling is based on an erroneous view of the law). Appellants argue that Oklahoma law governs the award of attorn ey fees in this case and requires using the lodestar approa ch rather than a percentage-of-the-fund analysis. We agree. 1 Because federal jurisdiction in this common -fund case is based on the diversity of the parties, see 28 U.S.C. § 1332, the doctrine established in Erie R.R. Co. v. Tompkins , 304 U.S. 64 (1938), requires us to apply Oklahoma law gove rning the award of attorney fees in common-fund cases. Under Erie , “federal courts in dive rsity cases must respect the definition of state-created rights a nd obligations by the state courts.” Byrd v. Blue Ridge Rural Elec. Coop. , 356 U.S. 525, 535 (1958). In other words, the federal courts must recognize state-created substantive righ ts. Those rights include “the rules of decision by which [the] court will ad judicate [substantive] rights.” Mississippi Pub. Corp. v. Murphree , 326 U.S. 438, 446 ( 1946) (describin g prohibition in Rules Enabling Act, 28 U.S.C. § 2072(b), against federal ru les of procedure that modify substantive rights); see Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010) (plurality opinion); Scottsdale Ins. Co. v. Tolliver , 636 F.3d 1273, 1280 (10th Cir. 2011) (applying Oklahoma statute authorizing award of fees to defendant when judgment

1 We reject appellee’s contenti on that appellants waived this argument in district court. The district court wrote: “O bjectors Danny George and Ch arles David Nutley objected to Class Counsel’s fee request and the amount of fees requested on the grounds that Oklahoma law applies to Class Counsel’s request, under Oklahoma law, a lodestar analysis is required, and the fees are excessive under either analysis.” JA 523 (Dist. Ct. Order).8 awarded is less than amount of offer of judgment). But the Erie doctrine sometimes also requires federal courts to apply state law that , in other contexts, might be deemed matters of procedure. “[T]he twin aims of the Erie rule [are] discouragem ent of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer , 380 U.S. 460, 468 (1965). To advance those aims, at le ast when there is no contrary federal rule of civil procedure properly enacte d under the Rules Enabling Act, see Shady Grove , 559 U.S. 393 (2010), the Erie doctrine requires federal courts to “conform as near as may be—in the absence of other co nsiderations—to state rules even of form and mode where the state rules may bear substantially on th e question whether the litigation would come out one way in the federal cour t and another way in the state court if the federal court failed to apply a particular rule.” Byrd , 356 U.S. at 536–37. We now apply this doctrine in the present context. To begin with, it is necessary to distinguish between two diffe rent types of attorney fees, depending on the basis for the fee award. In this circu it we have used the labels substantive and procedural to classify the two types of fees. Substantive fees are those that “are tied to the outcome of the litigation” and procedural fees are those that are “generally based on a litigant’s bad faith conduct in litigation.” Scottsdale , 636 F.3d at 1279. These labels are shorthand for those attorney fees that are governed by Erie (substantive fees) and those that are not (procedural fees). Substantive fees are part and parcel of the cause of action over which we have diversity jurisdiction. For example, if the cause of action is for bad-faith denial of insurance coverage and state law authorizes an award of attorney fees to a successful insured, then the right to an award of attorney fees is part of the state substantive right9 and the federal court must recognize it. In contrast, an attorney-fee award against badfaith conduct in the litigation ha s nothing to do with the nature of the cause of action and does not derive in any way from state substa ntive law. “[F]ee-shifting here is not a matter of substantive remedy, but of vindicating judicial authority.” Chambers v.
NASCO , Inc. 501 U.S. 32, 55 (1991 ) (internal quotation marks omitted) (applying federal law in imposing sanctions for bad-faith litigation conduct in diversity case). One way to see that Erie deference to state law has no purchase in this context is to note that “there is no risk that [an award of sanctions for bad -faith conduct during litigation] will lead to forum-shopping.” Id. at 53. This appeal concerns substantive attorney fees. Whether to award counsel a fee out of a common fund is not based on wh ether counsel behaves properly during the litigation; rather, the award is “tied to the outcome of the litigation.” Scottsdale , 636 F.3d at 1279 (emphasis added) (fee award based on comparison of ultimate judgment to offer of judgment). In this context we have said, “In a diversity case, the matter of attorney’s fees is a substantive legal issue and is therefore controlled by state law.” N. Tex. Prod. Credit Ass’n v. McCurtain Cty. Nat’l Bank , 222 F.3d 800, 817 (10t h Cir. 2000) (affirming denial of attorney fees because Oklahoma law did not authorize such an award for successful defense against clai ms of fraud and conspiracy). Our position finds support in leading authorities. Moore’s Federal Practice st ates that “when . . . fees are connected to the substance of the case,” the question of whether a fee should be awarded is substantive. § 124.07[ 3][b] (3d ed. 2011) (Moore’s). An d Wright & Miller endorses the view that “state law [is] controlling when it fo rbids an award of atto rney’s fees” and that10 “when state law provides for the recovery of an attorney’s fee as a part of the claim being asserted[,] . . . the federal court should permit an award of a fee on the theory that it is part of the substantive right in issue.” 10 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus , Federal Practice and Procedures § 2669 at 263 (3d ed. 2014) (Wright & Miller). 2 There remains, however, the question whet her the federal court must follow state law governing how to calculate th e proper attorney fee. On th at issue, there is no binding precedent in this circuit. But cf. Davis v. Pruden tial Prop. & Cas. Co. , 145 F.3d 1345, at *3 (10th Cir. 1998) (unpub lished disposition) (“The calculation of attorney’s fees in a diversity case is determined with reference to state law.” (emphasis added)). But there appears to be a consensus among those circuits that have considered the matter. We have found decisions from five other circuits. When state law governs whether to award attorney fees, all agree that state law al so governs how to calculate the amount. See, e.g. , In re Volkswagen & Audi Warranty Extension Litig. , 692 F.3d 4, 15, 21–22 (1st Cir.

2 The treatise suggests that there may be some contrary authority, stating that “cases have held that a federal judge has discretion to allow or disallow attorney fees, and have concluded that the judge’s exercise of this discretion is not to be fettered by state doctrines relating to attorney’s fees.” 10 Wr ight & Miller § 2669 at 261–62. But the six cases cited for this proposition are distingu ishable from our case. Two of the cases involved fee sanctions for ba d-faith conduct in litigation. See Chamber, 501 U.S. at 45– 46; Republic of Cape Verde v. A & A Partners , 89 F.R.D. 14, 20 n. 12 (S.D.N.Y. 1980). And in the other four the jurisdiction of the federal court was based on a federal question, not diversity. See Bank of China v. Wells Fa rgo Bank & Union Trust Co. , 209 F.2d 467, 473 (9th Cir. 1953); Palomas Land & Cattle Co. v. Baldwin , 189 F.2d 936, 938 (9th Cir. 1951); Aspira of New York, Inc. v. Bd . of Educ. of City of New York , 65 F.R.D. 541, 541– 42 (S.D.N.Y. 1975); Bank of America Nat’l Tr. and Sav. Ass’n v. Mamakos , 57 F.R.D. 198, 199 (N.D. Cal. 1972).11 2012) (in diversity case “the issue of attorn eys’ fees has long been considered for Erie purposes to be substantive and not procedur al, and so state-law principles normally govern the award of fees,” and “[t]he di strict court should determine which method [lodestar or multifactor approach] Massachusetts woul d apply here”); Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (“State law controls both the award of and the reasonableness of fees awarded where state law supplies the rule of decision.”); Davis v. Mut. Life Ins. Co. of New York , 6 F.3d 367, 382–83 (6th Cir. 1993); Riordan v. Nationwide Mut. Fire Ins. Co. , 977 F.2d 47, 53 (2d Cir. 1992); N. Heel Corp. v. Compo Indus. , 851 F.2d 456, 475 (1st Cir. 1988). 3 A leading treatise lends further support. Moore’s states, “When state law controls, state law governs not only the right to fees but also the method of calculating the fees .” Moore’s § 124.07[3][b] (emphasis added). The calculation of a ttorney fees is considered substantive law because “[t]he method of calculating a fee is an inherent part of the substantive right to the fee itself a nd reflects substantive state policy.” Id. (footnote omitted). Here, the attorney-fee award was based on the outcome of the litigation not the district court’s power to discipline the litigants . State law therefore governs the propriety of granting a fee award. And we must also apply the State’s rule s on how the amount of the fee is to be calculated because they ar e “rules of decision by which [the] court will

3 Chieftain suggests that the Supreme Court held in Boeing Co. v. Van Gemert , 444 U.S. 472, 478 (1980), that federal law governs ho w to calculate fees in a common-fund case. But there is no discussion in that case regard ing what law governs. The decision cannot be authority on an issue not addressed.12 adjudicate [the] right[] [to the fee].” Murphree , 326 U.S. at 446. Afte r all, if there is no sufficient federal interest to override a state’s decision not to allow common-fund attorney fees, it is hard to s ee how there could be a sufficient interest to override state law on how to compute the fee. To be sure, the ultimate standa rd for awarding a fee under either the lodestar or Johnson methodology is whether the fee is reasonable, so one might argue that the method of calculation to dete rmine reasonableness is merely a matter of procedure. But it is state substan tive law that cabins the meaning of reasonable . If state law declares that failure to wear a seatbe lt while riding in a motor vehicle is never unreasonable (or is always unreasonable), th ere can be no question that a federal court hearing a common-law negligence cl aim in diversity mu st comply with th at declaration. Similarly, a federal court in a diversity acti on must follow state law declaring that, absent extraordinary circumstances, a reasonable atto rney fee is the fee computed under the lodestar method. We therefore see no reason to depart from what appears to be the consensus view that state law governs how to calculate a substantiv e attorney fee. Chieftain nevertheless relies on Federal Rule of Civil Procedure 23(h), which governs class actions in federal court, arguing that “the method used to assess the reasonableness of [class counsel’s] fee is a pr ocedural matter governed by Rule 23(h), not state procedural law.” Chieftain Br. at 18. We agree that this would be a more challenging issue if a federal rule of proced ure said, for example, that fees should be calculated under the Johnson methodology. We would firs t have to determine whether the rule violated the prohibition in the Ru les Enabling Act against rules that modify substantive rights. See 28 U.S.C. § 2072(b). And then assuming (although, for reasons13 discussed above, we doubt the validity of the assu mption) that the rule passed muster, we would probably have to apply it. See Shady Grove, 559 U.S. at 393. But Rule 23(h) does not establish a rule of decisi on for assessing attorney fees. 4 It 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 pa rties’ agreement.” And it outlines procedures to be followed before granting such an award: “A claim for an award must be made by motion . . . at a time the court sets”; “[n]otic e of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner”; “[a] class member, or a party from whom pa yment is sought, may object to the motion”; “[t]he court may hold a hearing and must find the facts and state its legal conclusions . . . .”; and “[t]he court may refer issues related to the am ount of the award to a special master or a magistrate judge . . . .” In short, the rule addresses only how to

4 Rule 23(h) states in full: Attorney’s Fees an d Nontaxable Costs. In 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. 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 motion must be served on all parties and, for motions by cla ss counsel, directed to class members in a reasonable manner. (2) A class member, or a party from 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).14 conduct the court proceedings for determining the fee award. It does not provide any rules to guide the court on how to calculate the amount of the award. Thus, we turn to Oklahoma law to determ ine how to compute th e attorney fee in this case. The cont rolling precedent is Burk v. Oklahoma City , 598 P.2d 659 (Okla. 1979), a common-fund case. That decision directed that to enable a court to determine attorney fees, attorneys in Ok lahoma must henceforth (the a ttorneys in that case were excused from this requirement) present “d etailed time records showing the work performed and offer evid ence as to the reasonable value for the services performed.” Id. at 663. This allows the court to determine the lodestar. See id. Then other factors can be considered to provide an “incentive fee or bonus.” Id. at 661 (internal quotation marks omitted); see Hess v. Volkswagen of Am., Inc. , 341 P.3d 662, 667 (Okla. 2014) (the lodestar “fee may be enhanced by applica tion of certain factors”). The enhancement factors set forth in Burk have now been codified in a state statute. See 12 O.S. Supp. 2013 § 2023(G)(4)(e) (e ffective September 10, 2013, for motions filed after that date). The statutory factors are essentially the same as the Johnson factors, with the only material difference being that the statutory fa ctors include the risk of recovery in the litigation. Compare id. with Johnson , 488 F.2d at 717–19. Burk continues to be good law. See, e.g. , Hess , 341 P.3d at 667; Spencer v. Okla. Gas & Elec. Co. , 171 P.3d 890, 895 (Okla. 2007). We have been pointed to no contrary Oklahoma authority, nor have we found any. If anything, the Oklahoma Supreme Court has limited the application of th e enhancement factors. In Hess it declared that “[t]here is a strong presumption that the lodestar method, alone, will re flect a reasonable attorney15 fee.” 341 P.3d at 671. In support of that presumption the court cited Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 552–54 (2010), thereb y signaling that it would follow the lead of the United States Supreme Court in greatly limiting departures from the lodestar figure. The district court did not use the lodestar method to calculate cl ass counsel’s fee in this case. Class counsel failed to provide th e information necessary to apply that method. As already noted, in 1979 the Oklahoma Suprem e Court stated that a ttorneys seeking fees must present “detailed time records” and “evi dence as to the reasonable value for the services performed.” Burk , 598 P.2d at 663. Class counsel did not come close to performing this task. As the district court r ecognized, “Now, if I we re to determine that the lodestar is applicable, then I think you wi ll agree with me we just don’t have enough information in this case right now.” JA at 467–68. (Transcript of Fairness Hearing). Although class counsel claimed to have spen t “much more” than 10 ,000 hours on the

case, id. at 434, the firm acknowledged that “we don’t keep detailed time records on every hour we do in these cases,” id. at 421. Any time figures were mere estimates. To be sure, the district court stated that “utili zation of either the common fund or lodestar method would not affect this Court’s ruling.” Id. at 524. But this statement was not, and could not have been, based on computing the f ee by both methods. Rather, the court was simply noting that empirical studies indicated th at awards turned out to be about the same under both methods. Therefore, we must set asid e the attorney-fee aw ard. The district court will have to decide in the first instance whether any aw ard can be made in light of the absence of16 contemporaneous time records. It is unfor tunate that class counsel did not do the necessary homework on Oklahoma law. 5
III. INCENTIVE AWARD At the fairness hearing, class counsel s ought an incentive award for the lead plaintiff, Chieftain, for its involvement in the litigation through its President, Robert Abernathy. Such awards are not uncommon. An empirical study published in 2006 reviewed 374 opinions in cla ss actions from 19 93 to 2002. See Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Cla ss Action Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303 (2006) (Empirical Study). It reporte d that incentive awards were granted in about 28% of settled class actions; on average the incentive award was .16% of the class recovery, with a median of .02%. Id. at 1303. The average award per class representative was $15,992 and the median award was $4,357. Id. at 1348

. More recent studies have shown a marked increase in the frequency of incentive awards, with the rate approaching 80% by 2011. See Newberg § 17:7. The averag e award dropped to $11,697 and the median increased to $5,250 in a study of cases from 2006 to 2011. See id. 17:8. Counsel for Chieftain offered two grounds for an incentive aw ard. One was the “risk or burden” Mr. Abernathy incurs as a re sult of his role as le ad plaintiff. Counsel

5 Finally, we reject appellant Nutley’s argumen t that the award of a fee is inappropriate because of a conflict of interest between clas s counsel and Chieftain. Nutley argues that Chieftain and class counsel have a longsta nding arrangement of filing class actions together, that this “produces a disabling conf lict of interest that deprived the class of adequate representation,” and that this “shoul d deprive Class Counsel of their right to demand a fee.” Aplt. Br. (Nutley) at 58. We question whether this argument was preserved below. But in any event, this a lleged relationship is not enough in itself to establish a disabling conflict.17 gave two examples. First, because he is litig ating against a company called Merit, “he is not able to sit and talk to people at Mer it like an ordinary roya lty owner would because they know he’s our client and th ey know he is in these cases, so he has to go through a little different procedure. And it’s very di fficult for [Mr. Abernath y] to just do basic deals at times compared to your average royalty owner.” Id. at 440. Second, during this litigation he could not talk to the law firm that ordinarily does his estate planning, because that firm represents defendants in the underlying action. Counsel added that “there is a lot of hardship an d risk when you’re in the State of Oklahoma where a lot of the buildings downtown are oil and gas co mpanies and you live here and you’re going against them in several different case s in ways that they don’t like.” Id. Counsel for Chieftain also sought to ju stify an incentive award by describing Mr. Abernathy’s contribution to the case— his services rendered— as follows: He is a licensed attorney. He has represented to me that he spent somewhere around 200 to 300 hours workin g in this case. And I know that without looking at any—what he does ev ery day. I know that he has been directly involved in this case. His deposition was taken in this case. He attended, I believe, two of the depositions in this case. He help s us prepare for all kinds of things during the settlement process. He revi ews the pleadings in this case. He has been active in reviewing the pl eadings for the settlement and the settlement documentation. He is an advocate of royalty owners here in the state of Oklahoma. He has many, many friends that are royalty owners that he is in direct contact with about what happens in th ese cases and their rights in general. As I mentioned, he told me a stor y recently, the OCC has had him go out and speak to out-of-state Oklahom a royalty owners. He was telling me—I think it was last year he was in Fort Myers and a lady came up to him and said, Are you the Chieftain from Chieftain vs. QEP ? He said, Yes. She said, I want to give you a hug. He said, Why?18 She said, I got $40,000 in that cas e. Thank you for what you did. So, you know, this isn’t, as the ob jectors try to insinuate, some guy who is just out there and doesn’t kn ow what he is doing and letting the lawyers run amuck over him. He is a real active helpful client. Also, in this case, because there is this future co mponent, somebody has got to look out and see if the de fendants are actually complying with their future benefits under the settlement. And what we will do and what Mr. Abernathy will do is we will look at his statements every month. We will probably have Ms. Ley and class counsel look at them too. We will be doing this for the next three years to make sure that nothing changes on th e way his payments are calculated. We had an audit provision in the QEP case. We don’t have it here. But, based on that experience, I thin k Mr. Abernathy would say—when we talked—it will probably be another 50 hours to 100 hours doing that over the next three years. Hopefully, it’s not that much, but we have no way to know. So this is real time . He is a licensed attorney. JA at 438–39 (Transcript of Fairness Hearing). The district court agreed th at Chieftain should receive an incentive award. It stated that “‘a class represen tative may be entitled to an aw ard for personal risk incurred or additional effort and expertise prov ided for the benefit of the class,’” id. at 528 (Dist. Ct. Order) (quoting UFCW Local 880–Reta il Food Emp’rs Joint Pension Fund v. Newmont Mining Corp. , 352 F. Appx. 232, 235 (10t h Cir. 2009)), and that “[c]ase contribution awards are meant to compensate class represen tatives for their work on behalf of the class, which has be nefited from their representation,” id. (internal quotation marks omitted). It also ob served that “[i]ncentive awar ds are not uncommon and are particularly given where a co mmon fund has been created fo r the benefit of the entire class.” Id. at 529. It concluded that it should consider “(1) the actions the class representative took to protect the interests of the class; (2) the degree to which the class has benefitted from those actions; and (3) the amount of time and effort the class19 representative expended in pursuing the litigation.” Id. The district court ruled as follows: A Case Contribution Award is appr opriate in this case. Class Representative—through its Presiden t, Robert Abernathy—has been actively involved in this Litigation since its incep tion. Mr. Abernathy has contributed by reviewing draft pleadin gs and motions, searching for and producing records, reviewing filings , communicating regularly with Class Counsel, making himself availabl e by telephone during the formal mediation, continuously monitoring the Litigation and settlement process, and approving the terms of the Settlement. Mr. Abernathy’s efforts helped lead to a settlement that greatly benef its the Class, and Class Representative should be rewarded for those efforts. Id. As for the amount of the award, the distri ct court said that 1/ 2% of the fund was “fair” and “reasonable.” Id. at 530. In reducing the award from the amount sought (1%), the court pointed to the reduction of the attorney fee sought and stated that “a commensurate reduction of the requested [incentive reward] is appropriate.” Id. The court also pointed out that “[ s]imilar [incentive] awards ha ve been granted in similar
cases.” Id. (citing opinions in other cases, apparently involvi ng royalty litigation, in Oklahoma federal district court in which th e incentive award was between 1% and 2% of the settlement amount). We review a district court’s grant of an incentive award for abuse of discretion. See Cobell v. Jewell , 802 F.3d 12, 23 (D.C. Cir. 2015); Montgomery v. Aetna Plywood,
Inc. , 231 F.3d 399, 408 (7th Cir. 2000); UFCW Local 880 , 352 F. App’x at 235 (“Generally, our standard of review for a dist rict court’s award of attorney fees in the class-action context is abuse of discretion”; and “the district court’s familiarity with the20 parties and the proceedings supports an abus e-of-discretion standard” in reviewing an incentive award); Newberg § 17:21 (endorsing analysis in UFCW Local 880 ). Appellant Nutley argues on appeal that incentive awards are unlawful per se in common-fund cases. He asserts that two U.S. Supreme Court decisions— Cent. R.R. & Banking Co. v. Pettus , 113 U.S. 116 (1885), and Trustees v. Greenough , 105 U.S. 527 (1881)—“hold that a litigant whose efforts cr eate a common fund may recover expenses reasonably incurred, including its reasonable attorneys’ fees, but not incentive awards for services rendered.” Aplt. Br. (Nutley) at 27. But Nutley forfeited any argument about the general legality of incentive aw ards by failing to raise it below. We cannot find any indication in the record that Nutley raised this argument in district court. On the contrary, he stated in his written objectio n to the award that incentive awards are sometimes proper. See JA at 319 (Nutley’s objection) (“The concept of a service award is not unfamiliar in this Circu it, and may be appropriate when necessary to induce people to become named representatives, or to comp ensate personal risk or ‘additional effort expended’ by the representative in prosecu ting the suit.”). Nutley claims that he preserved this issue because “[a]t the fa irness hearing, [his] counsel challenged Chieftain’s right to claim any award for Aber nathy’s time on the case.” Aplt. Joint Reply Br. at 24–25. As that statement suggests , however, his counsel spoke at the fairness hearing only of the propriety of Chieftain’s incentive award—not of the legality of these awards in general. See JA at 459–62 (Transcript of Fairness Hearing). And the district court made no ruling on the broader issue. Because this argument was forfeited, we can review only under the plain-error standard. See Richison v. Ernest Grp., Inc. , 634 F.3d21 1123, 1130 (10th Cir. 2011). Bu t ordinarily we will not even do that unless the party specifically argues plain error in its briefs, see id. at 1131, and Nutley’s briefs made no such argument. We therefore turn to the specific award in this case. As stated above, Chieftain raised in district court two potential grounds for receiving an incen tive award. One was the risk or burden incurred by Chieftain and M r. Abernathy. Courts have recognized that an award may be appropriate to provide an incentive to act as a named plaintiff. See In re Synthroid Mktg. Litig. , 264 F.3d 712, 722–23 (7th Cir. 2001) (“Incentive awards are justified when necessary to induce individuals to become named representatives . . . . But if at least one [class member] would have stepped forward without the lure of an ‘incentive award,’ there is no need for such additiona l compensation.”); Cook v. Niedert , 142 F.3d 1004, 1016 (7th Cir. 1998) (“Beca use a named plaintiff is an essential ingredient of any class action, an incentive aw ard is appropriate if it is necessary to induce an individual to par ticipate in the suit.”); Newber g § 17:3 (incentive awards can “incentivize class members to st ep forward” despite risks such as the po ssibility that the class representative could be liable for the cost s of the suit or might face retaliation). The district court, however, did not justif y the incentive award on the basis of any risk or burden incurred by Chieftain or Mr. Abernathy or on the need for an incentive for Chieftain to act as a named plaintiff. Indeed it made no findings on the subject. This is understandable, given (1) that the notice to th e class stated that the requested incentive award would be compensation for time and effort (with no mention of risk or burden) and22 (2) that the presentation of risk and burden at the hearing on the award was quite weak. 6 Accordingly, there is no foundation for us to affirm, in whole or in part, the incentive award on this ground. The district court is free to decide in the first instance whether under the circumstances of this case—includin g the absence of an initial court finding on the matter—Chieftain should be given anot her opportunity on remand to make a better showing under the risk-or-burden rationale. Hence, we need analyze only Chieftain’ s second argument in support of an award—that it would fairly comp ensate for the services rende red by Mr. Abernathy. Our first task is to determine the governing law. We think it clear that, as with the attorneyfee award discussed above, Erie requires us to apply Oklahom a law. Unfortunately, the Oklahoma Supreme Court apparently has not a ddressed incentive fees, nor have we been directed to or found any opinions by lower courts of that state. Our task then is to make

6 There was no assertion that Mr. Aberna thy had been retaliated against or even ostracized as a result of serving as lead plai ntiff. His inability to employ an attorney from the law firm of opposing counsel to assist him with his estate planning is hardly cause for a bonus. He did not say that he could not negotiate deals with en ergy companies; he complained only that he had to do it a little differently than other royalty owners might have to, and he provided no specifics on ho w this process was more time-consuming or expensive than the norm. And the court could give little weight to the bald statement that “there is a lot of hardship and risk,” JA at 440, to going against major companies in the state, particularly when counsel indicated that Mr. Abernathy is a respected and even beloved member of the community. Furthe r, his company recovered unpaid royalties from the suit, which should be incentive enou gh for most plaintiffs, particularly when royalty litigation may be the business model for the company. See Robles v. Brake Masters Sys., Inc ., No. CIV 10-0135 JB/WPL, 2011 WL 9717448, at *12 (D.N.M. Jan. 31, 2011) (denying an incen tive award in part because lead plaintiff “offer[ed] no argument or evidence, co mpetent or otherwise, that other class representative[s] were not forthcoming, and that an incentive award [w as] justified for bringing a representative forward”).23 an informed prediction of what th e State’s highest court would do. See United States v. Badger , 818 F.3d 563, 568–69 (10th Cir. 2016). When “no state cases exist on a point, we turn to other state court decisions, federa l decisions, and the gene ral weight and trend of authority.” Sender v. Simon , 84 F.3d 1299, 1303 (10th Ci r. 1996) (internal quotation marks omitted). In conducting this analysis we have the advantage of a treatise on class actions that discusses and cite s relevant judicial decisions. To begin with, we note that courts regul arly give incentive aw ards to compensate named plaintiffs for the work they performed—t heir time and effort invested in the case. See, e.g. , Cobell v. Salazar , 679 F.3d 909, 922–23 (D.C. Cir. 2012) (district court did not err in finding that lead plaintiff’s “singula r, selfless, and tireless investment of time, energy, and personal funds to ensure survival of the litiga tion [merited] an incentive award”); Rodriguez v. West Publ’g Corp. , 563 F.3d 948, 958 (9th Cir. 2009) (“Incentive awards . . . are intended to co mpensate class representatives for work done on behalf of the class . . . .”). These services typically include “monitoring class counsel, being deposed by opposing counsel, keeping informed of the pr ogress of the litigation, and serving as a client for purposes of a pproving any proposed settlement with the defendant.” Newberg § 17:3. The award sh ould be proportional to the contribution of the plaintiff. See Phillips v. Asset Acceptance, LLC , 736 F.3d 1076, 1 081 (7th Cir. 2013) (if the lead plaintiff’s services are greate r, her incentive award likely will be greater); Rodriguez , 563 F.3d at 960 (incentive award should not be “untethered to any service or value [the lead plaintiff] will provid e to the class”); Newberg § 17:18.24 In our view, however, the Oklahoma Supr eme Court would not approve the award given here. The district cour t granted Chieftain a 1/2% in centive award of $260,000. Yet the weight of authority apparently disfavors percentage-based awards. See Newberg § 17:16 (“Percentage-based awards are disfavor ed, if not altogether forbidden.”). There are several reasons to reject the practice. Most importantly, “scaling those rewards according to the size of the comm on fund is at best a rough proxy in that the services and risks are not necessarily directly rela ted to the size of the settlement.” Id

. In addition, percentage awards “skew the class representa tives’ incentives by encouraging them to hold out for greater recovery . . . when in fact the class’s inte rest would be best served by a settlement”; “percentage awards privilege monetary recoveries over other remedies, such as injunctive relief, creat ing a potential conflict between the interest of the class representative and the class”; “percentage awards threaten to be excessive”; and “paying the class representatives a portio n of the settlement fund is si mply unseemly: it gives the appearance that the representativ e is either a professional plai ntiff, or bounty hunter, not a servant for the class.” Id . (footnotes omitted). If a percenta ge calculation is to be made at all, it should be made only to “check a fl at award for excessiveness by reference to the percentage of the fund it represents.” Id. We therefore examine whethe r the award to Chieftain can be justified as payment at a reasonable rate for reas onable time expended on services rendered that were helpful to the litigation and did not duplicate what could be performed le ss expensively by25 counsel. Appellant George concedes that such payment would be proper. 7 See Aplt. Br. (George) at 30. And this approach to measur ing the value of the work is consistent with the Oklahoma Supreme Court’s lodestar a pproach to attorney-fee awards in commonfund cases. The question is what rate and wh at efforts are reasonable. The answer must be supported by sufficient evidence in the record. See Cook , 142 F.3d at 1016 (upholding district court’s incentive award after noting that findings justifying the award were “wellsupported by the evidence”). This evidence might be provided through “affidavits submitted by class counsel and/or the class representatives, throu gh which these persons testify to the particular services performed , the risks encountered, and any other facts pertinent to the award.” Newberg § 17:12. “Courts may also receiv e this evidence by live testimony at the fairness hearing.” Id. They “regularly reject awards where the relevant facts are not sufficiently documented.” Id. (collecting cases). The record before us is de void of evidence from which a computation could be made. The district court was not provided s upporting documents eith er when deciding to

7 We reject appellant Nutley’s argument th at Chieftain is not entitled to any incentive award at all. He states on appeal that “Chieftain argued below that it should be compensated because Abernathy’ s work ‘as an attorney, cont ributed to the prosecution and resolution of this case.’” Aplt. Br. (Nutley) at 32 (quoting Fee Memorandum, JA 305). He contends that “a litigant who is al so an attorney is not entitled to collect attorneys’ fees that might otherwise be authorized.” Id. at 33. And he says that “seeking compensation as an attorney produces a conflict of interest sufficient to disable Chieftain from acting as an adequate re presentative for the class.” Id. We do not think Mr. Abernathy is seeking compensation for his le gal work but, as we discuss below, the record does not contain sufficien t evidence of what services he provided that entitle him to an award. Once this is established, th e district court should determine in the first instance whether he can be compensated for any “legal work” and, if so, what the amount of compensation should be.26 grant the incentive award or when determining the amount of the award. Instead, as can be seen in the excerpt from the transcript above, counsel spoke br oadly about the tasks Mr. Abernathy had performed in the case and offered an an ecdote about a class member in a previous suit who was grateful for hi s work there. When discussing the time Mr. Abernathy had expended on the ca se, counsel did not provide detailed contemporaneous records but offered on ly approximations and generalities. See JA at 438 (Transcript of Fairness Hearing) (“[Mr. Abernathy] spent somewhere around 200 to 300 hours working in this case.”); id. at 439 (“[I]t will probably be another 50 hours to 100 hours [of work for Mr. Abernathy] over the next three years.”). Therefore, in keeping with our prediction of what the Oklahoma Supreme Court would command, we must reverse for abuse of discreti on and remand for further fact-finding.
IV. CONCLUSION We REVERSE the attorney-fee and incentive awards and REMAND for further proceedings consistent w ith this opinion. We AFFIRM the district court’s Order and Judgment Granting Final Approval of Class Action Settlement.