IN THE UNITED STATES COURT OF FEDERAL CLAIMS
)
HEALTH REPUBLIC INSURANCE )
COMPANY, )
)
Plaintiff, ) No. 16-259
)
v. ) Filed: August 7, 2026
)
THE UNITED STATES, )
)
Defendant. )
______________________________________ )
)
COMMON GROUND HEALTHCARE )
COOPERATIVE, )
)
Plaintiff, ) No. 17-877
)
v. ) Filed: August 7, 2026
)
THE UNITED STATES, )
)
Defendant. )
______________________________________ )
OPINION AND ORDER
Before the Court is the Motion for Attorneys’ Fees from Class Counsel filed by objecting
members of the Risk Corridors Non-Dispute Subclasses (“Objectors”). Objectors argue that they
should be awarded fees based on the substantial benefit they conferred on the Risk Corridors NonDispute Subclasses (“Subclasses”) by successfully advocating for the reduction of Class Counsel’s
fee request and for the payment of prejudgment interest, which resulted in the return of over $100
million to the Subclasses. Class Counsel opposes the Motion, arguing that any attorney’s fee
award for Objectors should be assessed against the Subclasses’ recovery in the common fund,
which no longer exists; or alternatively, the Court should award Objectors only part of the fees
they seek. For the reasons that follow, the Court DENIES Objectors’ Motion.
I. BACKGROUND
The Court provided a summary of this years-long litigation over attorney’s fees in its
previous opinion granting Objectors’ motion for leave to file the present motion. See Op. & Order
at 2–4, ECF No. 271. 1 As such, it will not recite that background again.
On March 4, 2026, Objectors filed their fee request, seeking a fee award of $1,625,500
million, or about 1.6 percent of the approximately $102 million benefit they conferred on the
Subclasses. See Objectors’ Mot. for Att’ys’ Fees from Class Counsel at 28, ECF No. 272. On
March 19, 2026, Class Counsel filed their opposition to Objectors’ request, asserting that Objectors
should not be entitled to any fees from Class Counsel, but to the extent that the Court agrees with
Objectors it should only award between $400,000 and $500,000 to reflect the benefit Objectors
actually conferred on the class. See Class Counsel’s Opp’n to Objectors’ Mot. for Att’y’s Fees
from Class Counsel at 6, ECF No. 273. Objectors replied on March 26, 2026, and thus the motion
is ripe for decision. See Objectors’ Reply, ECF No. 274.
II. LEGAL STANDARDS
RCFC 23 permits the Court to “award reasonable attorney’s fees and nontaxable costs that
are authorized by law or by the parties’ agreement” in a certified class action. RCFC 23(h). In
common fund cases, such as this one, “a litigant or a lawyer . . . is entitled to reasonable attorney
fees from the fund as a whole.” Haggart v. Woodley, 809 F.3d 1336, 1352 (Fed. Cir. 2016)
(internal quotations and modifications omitted) (citing Boeing Co. v. Van Gemert, 444 U.S. 472,
478 (1980)). Awarding attorney’s fees out of the common fund guarantees that each member of
1
The pending motion, the parties’ briefing, and all the Court’s previous orders pertaining to Class Counsel’s and Objectors’ fee requests are substantively the same in both cases. Thus, for ease of reference, this opinion will cite only to the docket in Health Republic unless otherwise noted.
2
the class pays its fair share for class counsel’s representation. See Boeing, 444 U.S. at 478
(explaining that common fund fee awards avoid unjustly enriching parties that substantially
benefited from, but only minorly contributed to, the suit). The award of attorney’s fees in a class
action is a matter “committed to the sound discretion of the court.” Moore v. United States, 63
Fed. Cl. 781, 786 (2005).
Typically, the Court applies Rule 23(h) to evaluate fee requests by class counsel. However,
courts have approved fee awards that compensate counsel for class members who filed objections
(for example, to a proposed class settlement) “if their actions increase[d] the fund or otherwise
substantially benefit[ed] the class members.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051
(9th Cir. 2002); see also Rodriguez v. Disner, 688 F.3d 645, 658 (9th Cir. 2012) (“Under certain
circumstances, attorneys for objectors may be entitled to attorneys’ fees from the fund created by
class action litigation.”). The key question in such cases is whether counsel for objectors conferred
a substantial benefit on the class. In re Sw. Airlines Voucher Litig., 898 F.3d 740, 746–47 (7th
Cir. 2018) (reversing denial of fees to objector after finding that objector had conferred a large
benefit on the class).
III. DISCUSSION
It is undisputed that Objectors conferred a substantial benefit on the Subclasses by
challenging Class Counsel’s fee request and would thus be entitled to recover some amount of
their attorney’s fees. The primary dispute is who should pay those fees—Class Counsel from its
own attorney’s fee award, or the Subclasses from the common fund. Objectors only seek fees
from Class Counsel, but they have not shown that the equitable circumstances of these cases justify
their request.
3
Objectors whose “objections result in an increase to the common fund . . . may claim
entitlement to fees on the same equitable principles as class counsel.” Rodriguez, 688 F.3d at 658
(quoting Vizcaino, 290 F.3d at 1051–52); see also Reynolds v. Beneficial Nat’l Bank, 288 F.3d
277, 288 (7th Cir. 2002) (explaining that “[t]he principles of restitution . . . authorize” a fee award
for objectors who render a benefit to the class). As Class Counsel correctly explains, under the
common fund doctrine, an attorney’s fee is awarded “from the fund as a whole,” ensuring that the
“persons who obtain the benefit of a lawsuit without contributing to its cost are [not] unjustly
enriched at the successful litigant’s expense.” Boeing, 444 U.S. at 478; see ECF No. 273 at 8.
Thus, where—as here—the class is benefited as a whole from an objector’s objection, the equitable
principles underpinning the common fund doctrine support the conclusion that the class as a whole
should shoulder the cost of the objector’s efforts. See, e.g., In re Transpacific Passenger Air
Transp. Antitrust Litig., No. C 07-05634 CRB, 2015 WL 4776946, at *2 (N.D. Cal. Aug. 13, 2015)
(awarding objector attorney’s fees from common fund); Sobel v. Hertz Corp., 53 F. Supp. 3d 1319,
1334 (D. Nev. 2014) (same); see also 5 Newberg and Rubenstein on Class Actions § 15:94 (6th
ed.) (“Objector’s fees are typically paid out of the common fund recovery.”).
However, Objectors are correct to note that “in some circumstances courts have ordered
class counsel to pay objector’s fees, effectively . . . allocating the fee award between class counsel
and the objector lawyers.” 5 Newberg and Rubenstein on Class Actions § 15:94; see ECF No. 272
at 25. For example, in In re Optical Disk Drive Product Antitrust Litigation (Optical Disk II)—a
case involving a similarly postured fee dispute—an objector challenged class counsel’s fee request
and, following remand from the Ninth Circuit Court of Appeals, successfully argued for a reduced
fee award. No. 10-md-2143, 2021 WL 4124159, at *2–3 (N.D. Cal. Sept. 9, 2021). The district
court held that it was “more reasonable under all the circumstances [of the case] to fund the award
4
from the amount already designated as attorney fees, rather than further reducing the settlement
fund.” Id. at *2. Specifically, it cited “[t]he ultimate conclusion of the appellate and post-remand
proceedings” that found class counsel “had claimed and been awarded too much in fees (and had
improperly claimed and been allowed expenses) . . . .” Id. The Optical Disk II court reasoned
that, “[t]o require the class to bear the cost of correcting that error as a separate expense from the
attorney fees it already must pay would be less equitable than simply taking [the objector’s]
relatively modest fees from the substantial amount previously awarded.” Id. The “error” in the
prior fee award was occasioned by class counsel’s request for an attorney’s fee that was the double
the rate represented in the proposed fee structure it submitted to the court to secure appointment
as lead class counsel. See In re Optical Disk Drive Prods. Antitrust Litig. (“Optical Disk Drive
I”), 959 F.3d 922, 926–27, 931 (9th Cir. 2020) (reversing the district court’s fee award for “failing
to explain adequately the [significant] variance between counsel’s fee grid and the actual awards,”
which according to objectors was “double what it should have been”).
Similarly, in Hendricks v. Starkist Co., the district court held that payment of the objectors’
fees and costs by class counsel was “an appropriate and justified result” because it was “class
counsel’s acquiescence to the overbroad release” in the settlement agreement that necessitated
objectors getting involved. No. 13-CV-00729-HSG, 2016 WL 5462423, at *16 (N.D. Cal. Sept.
29, 2016) (noting that “the Court strongly believes that this expense should not be paid from money
that otherwise would have gone to the Class Members”), aff’d sub nom. Hendricks v. Ference, 754
F. App’x 510 (9th Cir. 2018). The district court in In re Lithium Ion Batteries Antitrust Litigation
relied on the same type of reasoning to award the objector attorney’s fees out of class counsel’s
5
fee award. 2 No. 13MD02420, 2020 WL 7261313, at *2 (N.D. Cal. Dec. 10, 2020) (“Were it not
for class counsel’s initial acquiescence to the pro rata distribution, and abrupt shift of positions in
the Round 3 settlements, [the objector] would not have needed to pursue the objection and
appeal.”), aff’d, No. 21-15120, 2022 WL 16959377 (9th Cir. Nov. 16, 2022).
The circumstances of the instant cases do not warrant a departure from the common fund
principles by awarding Objectors attorney’s fees directly from Class Counsel. The primary
argument Objectors posit in support of their request is that but for Class Counsel’s bad actions,
Objectors would never have needed to intervene. See ECF No. 272 at 25 (“Objectors seek their
fees solely from Class Counsel as a matter of equity.”). They repeatedly allege that Class Counsel
“refus[ed] to abide by the promises it made in the class notice,” “overreached” in seeking a 5-percent fee, and “inflat[ed] its lodestar.” Id. at 25–27; see ECF No. 274 at 5–7. They obliquely
malign Class Counsel for obtaining judgment preservation insurance on the original fee award it
collected, while also conceding that the fact is irrelevant, and accuse Class Counsel of walking
back its promise to pay interest on the amount of funds returned on remand. See ECF No. 272 at
6, 15; ECF No. 274 at 5––7. Objectors’ tired ad hominem attacks do not reflect the reality of this
long-running fee dispute.
Class Counsel’s fee request (both original and renewed) did not break any promise stated
in the class notice. In the notice, Class Counsel represented that it would “request no more than
5% of any judgment or settlement obtained for the QHP Issuer Class.” Unopposed Mot. to Suppl.
Class Notice, Ex. A at 2, ECF No. 50-1. In reality, Class Counsel requested a 5-percent fee award
2
Objectors also cite McDonough v. Toys R Us, Inc., 80 F. Supp. 3d 626 (E.D. Pa. 2015). The district court in that case likewise “reduced class counsel’s requested fee award by the amount of [the objector’s] award,” but it did not explain why it chose to order the payment from class counsel rather than the common fund. Id. at 662.
6
and no more. In the notice, Class Counsel advised the proposed classes that “the exact percentage
of Class Counsel’s fees will be determined by the Court subject to, among other things, the amount
at issue in the case and what is called a ‘lodestar cross-check.’” Id. In reality, that is exactly what
happened. Consistent with the Federal Circuit’s remand instructions, the Court conducted a
fulsome lodestar cross-check and arrived at a reduced fee percentage that it determined to be
reasonable and in line with comparator cases. Class Counsel never promised to limit its fee request
to a percentage equating to a certain lodestar multiplier, and although the Court did not ultimately
approve the full fee, Class Counsel supported its fee-approval motion (both original and renewed)
with comparator cases and expert opinions justifying the multiplier associated with its 5-percent
fee request. 3
Additionally, Class Counsel violated no court rule or ethical duty when it collected the
original fee award after the Court entered final judgment and where Objectors did not seek to stay
the judgment pending appeal. See generally Op. & Order, ECF No. 210. Class Counsel also
voluntarily agreed to pay back any difference to the Subclasses, plus interest, if the Court reduced
the fee award on remand. Decl. of Adam Wolfson ¶ 4, ECF No. 202-1; Class Counsel’s Opp’n to
Objectors’ Mot. for Accounting & Disc. at 17–18, ECF No. 202. In reality, that is exactly what
Class Counsel did. Objectors mischaracterize the facts when they argue that Class Counsel “tried
to walk back” its promise “by claiming that the class was entitled to zero interest.” ECF No. 272
at 13. Rather, Class Counsel advised Objectors that the common fund accounts were not interest
3
While Class Counsel could have arguably lowered its fee request on remand in response to the Federal Circuit’s decision, it would not have obviated Objectors’ objection. Objectors advocated for the extreme opposite of Class Counsel’s request—a fee award of .3 to .6 percent— which the Court found “raised serious public policy concerns” and was “manifestly unfair to Class Counsel, in relation to the benefits conferred through the class action process.” Op. & Order at 27–28, ECF No. 224.
7
bearing, thus the Subclasses would not have gained interest had the funds not been disbursed.
Decl. of Jenna A. Fasone at 5, ECF No. 234-1 (Email from Adam Wolfson to Jenna Fasone (Nov.
13, 2024)). Class Counsel went on to offer a 1.775 rate to settle Objectors’ interest claim. Id.
(describing the offer as halfway between the interest earned on the accounts (0 percent) and the
rate the bank pays on interest-bearing accounts (3.55 percent)). Although Class Counsel argued
for a much lower interest rate (approximately .08 percent) in opposition to Objectors’ motion for
pre-judgment interest, it never argued for zero interest, and the Court ultimately accepted Class
Counsel’s higher alternative rate, which ranged on average from .51 percent to 4.5 percent as the
market fluctuated over the approximately three-year period between the two award decisions. 4 See
Op. & Order at 6, 24, ECF No. 253. Simply put, Objectors’ request is based on a false premise:
their objections were not “incurred to enforce a promise broken by Class Counsel.” ECF No. 274
at 7.
These circumstances distinguish the instant cases from the cases Objectors cite. In Optical
Disk II, class counsel requested a fee percentage that was twice the fee percentage that it included
in its sealed bid to obtain court approval to represent the class. 2021 WL 4124159, at *3; Optical
Disk I, 959 F.3d at 933. Class counsel in Hendricks failed to ensure that the proposed class
settlement included an appropriate release for the class, “including repeated avowals that postnotice changes to the release were reasonable and insistence that releasing claims different from
the scope of alleged liability was not cause for concern.” 2016 WL 5462423, at *16. And in
4
Again, coming in on the opposite end of the scale, Objectors argued for the highest available rate—a prime interest rate that on average ranged from 3.25 percent to 8.5 percent during the same period, which the Court found inappropriate. See Op. & Order at 11–12, ECF No. 253 (rejecting prime rate because cases applying such rate usually focus on some harm or damage to the movant caused by the non-movant—a scenario not present in these cases).
8
Lithium Ion Batteries, class counsel similarly failed to properly protect the class’s interests and
abruptly changed positions during settlement negotiations. 2020 WL 7261313, at *2.
Here, there are no significant variances or failures that tip the scales of equity in favor of
permitting Objectors to recover their attorney’s fees from Class Counsel. The only mistake that
Objectors uncovered in Class Counsel’s fee request was the inadvertent inclusion of Class
Counsel’s hours spent on the fee-approval motions and hours spent on the cost-sharing reduction
claims that purportedly overlapped with and benefitted the risk corridors class. See Op. & Order
at 11–12, ECF No. 224. Class Counsel conceded in both instances that the hours should be
excluded. See id. As such, the Court applied a 15 percent reduction to Class Counsel’s hours,
which lowered the overall fee percentage awarded by approximately .44 percent. While not
insignificant given the size of the common fund, the nature and degree of the mistake does not
warrant Objectors’ fees being paid by Class Counsel, rather than by the Objectors.
Nor can Objectors’ request succeed simply because their objections sought to reduce, and
in fact did result in reducing, Class Counsel’s fee award. If that were the case, the norm would be
for courts to order class counsel to pay an objector’s attorney’s fees if such objector successfully
challenged class counsel’s fee request. Class Counsel, however, cites several cases in which courts
denied objectors’ requests to recover their attorney’s fees from class counsel even though their
objections successfully reduced class counsel’s fees and/or expenses. See In re Riverstone
Networks, Inc., 256 F. App’x 168, 169, 170 (9th Cir. 2007); In re Easysaver Rewards Litig., No.
09-CV-02094-BAS-WVG, 2021 WL 230013, at *4 (S.D. Cal. Jan. 22, 2021); Transpacific
Passenger Air, 2015 WL 4776946, at *1.
The balance of equities in the instant cases weighs in favor of adhering to the common
doctrine principles. To be sure, it is undisputed that Objectors conferred a substantial benefit on
9
the Subclasses by objecting to Class Counsel’s fee request. Most importantly, their appeal of the
Court’s original fee award resulted in a remand for the Court to perform a more comprehensive
lodestar cross-check. On remand, the Court took its task seriously and gave very careful
consideration to the implicit multipliers used in comparable cases, as well as the sufficiency of
Class Counsel’s hours and rates. The fee award that the Court approved—2.5 percent of the
common fund—is the appropriate amount of attorney’s fees to compensate Class Counsel for the
exceptional result it achieved for the Subclasses in these first-of-their-kind lawsuits. The Court
finds no equity in further reducing Class Counsel’s reasonable fees to reimburse Objectors’
attorney’s fees based on the grounds Objectors assert. See Kang v. Wells Fargo Bank, N.A., No.
17-CV-06220-BLF, 2022 WL 1128721, at *8 (N.D. Cal. Apr. 15, 2022) (holding “it would be
inequitable to reduce the attorneys’ fees awarded to Class Counsel in order to pay the attorneys’
fees awarded to [Objector]” where “the Court carefully considered all relevant factors before
deciding on an appropriate award of [Class Counsel’s] fees”), aff’d sub nom. Kang v. Fyson, No.
22-15694, 2022 WL 6943174 (9th Cir. Oct. 12, 2022); Sobel, 53 F. Supp. 3d at 1334 (awarding
objector attorney’s fees from the common fund, not class counsel, in part because of “the
reasonable figure requested by class counsel”).
On the flip side, Objectors’ attorney’s fees are modest in comparison to the substantial size
of the common fund. See Kang, 2022 WL 1128721, at *8 (“Because [Objector’s] objection
conferred a benefit to the class, and the award of attorneys’ fees to [Objector] is relatively modest
in comparison to the size of the settlement fund . . . , the Court finds it equitable that the award to
[Objector] be paid from the settlement fund.”). There would be nothing unfair about the hundreds
of subclass members sharing equally in the cost of Objectors’ successful efforts on their behalf:
that is the principle of the common fund doctrine. See Boeing, 444 U.S. at 478. And here,
10
Objectors seem to concede that their costs have already been borne by a sufficient proportion of
the Subclasses, as Objectors represent 43 percent of the Subclasses measured by damages. See
ECF No. 272 at 25 (“Objectors do not seek any compensation from the class.”). Thus, the only
reason Objectors provide to tip the equitable considerations in their favor is the allegation that
Class Counsel has been a bad actor with respect to its request for attorney’s fees. As explained
above, those allegations are without merit.
Because the Court rejects Objectors’ request to order Class Counsel to bear the cost of their
attorney’s fees, and because Objectors do not seek payment from the Subclasses, the Court need
not determine whether the amount of Objectors’ fee request is reasonable.
IV. CONCLUSION
Based on the foregoing, the Court DENIES Objectors’ Motion for Attorneys’ Fees from
Class Counsel (Health Republic ECF No. 272; Common Ground ECF No. 307).
SO ORDERED.
Dated: August 7, 2026 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
11