Class Action Attorneys Fees In Rules 23(e) and 23(h): Calculation, Allocation, and Valuation of Non-Cash Benefits

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, October 14, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will discuss the requirements of Federal Rule 23(e)(C)(iii) and 23(h) and how the proponents of a class action settlement can show that the proposed attorneys' fees are fair and reasonable under the circumstances. The program will also explore how this balancing requirement may offer opponents new opportunities to challenge the settlement (whether for good faith or greenmail purposes). The panel will review currently used factors, allocation, calculation methods, and recent cases in which settlements were rejected post-certification or fees were reduced or reversed.


Proponents of settlement should not expect to have fee arrangements rubber-stamped. Looking to the 2018 amendments to Rule 23, the Ninth Circuit recently made clear that courts must assess whether an attorneys' fees arrangement shortchanges the class--at both the pre- and post-certification stages. Similar scrutiny is being demanded for "reasonable" fees awarded under Rule 23(h).

Because fee arrangements are an important aspect of the class settlement, counsel must be well-versed in designing and calculating attorneys' fees and the methods that might be problematic in different types of settlement structures. Valuation of non-cash benefits must be supported by cogent expert testimony. Agreed-upon and/or requested fees may be substantially reduced.

The heightened focus on attorneys' fees over the past decade is now being felt in more jurisdictions, particularly in consumer-focused class actions.

Listen as our experienced panel of class action lawyers explores the new emphasis on attorneys' fees, attorneys' fee calculation methods, standards for comparing attorneys' fees and class benefits, and special issues in claims made and coupon cases.



  1. Overview of Rule 23(e)(3) and 23(h)
  2. Fee calculation methods
  3. Balancing fees against the benefit to class members and type of relief
  4. Red flags of collusion
  5. Analogies from other substantive areas of law
  6. Recent decisions
    1. Arkansas Teach Retirement Sys. v. State Street Bank and Trust Co.
    2. Briseno v. Henderson
    3. Threatt v. Farrell


The panel will review these and other critical issues:

  • Is an era of court reliance on counsel concerning attorneys' fees coming to an end?
  • What structures and fee provisions are most likely to pass muster?
  • Does the "adequacy" inquiry require comparing percentage awards subject to any mandatory objective calculation?
  • How are fees in damages actions assessed differently than in injunctive actions?


Herman, Stephen
Stephen Herman

Herman Herman & Katz

Developing a broad civil practice, Mr. Herman has handled everything from highway defect and products liability cases,...  |  Read More

Zavareei, Hassan
Hassan Zavareei

Tycko & Zavareei

Mr. Zavareei has devoted the last eighteen years to recovering hundreds of millions of dollars on behalf of consumers...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video