In Re Thirteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litigation

These appeals require us to revisit the war zone where two groups of plaintiffs’ lawyers have struggled over the proposed allocation of roughly $68,000,000 in attorneys’ fees.' One camp, dissatisfied with the district court’s latest formula for distributing the fees, attacks the court’s order on three fronts. The disgruntled lawyers contend that the district court (1) violated their due process rights, (2) used an improper method to determine the awards, and (3) divided the available monies in an arbitrary and unreasonable manner. We find appellants’ first two plaints to be without merit, but we agree with them that allocating 70% of the fees to the appellees constituted an abuse of the trial court’s discretion. And, because we are reluctant to prolong a matter that, like the proverbial cat, seems to have nine lives, we take matters into our own hands and reconfigure the fee awards.

I. BACKGROUND

The lay of the land is familiar. We explored much the same terrain in an earlier encounter, see In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603 (1st Cir.1992), and a plethora of opinions describing the details of the underlying litigation pockmark the pages *300 of the Federal Reports, see, e.g., id. at 605 n. 1 (offering partial listing). Thus, a brief overview of the litigation will suffice.

In 1987, the Judicial Panel on Multidistrict Litigation consolidated over 270 cases arising out of the calamitous conflagration that had ravaged the San Juan Dupont Plaza Hotel on the evening of December 31, 1986. See In re Fire Disaster at Dupont Plaza Hotel, 660 F.Supp. 982 (J.P.M.L.1987) (per curiam). The designated trial judge, Hon. Raymond L. Acosta, handpicked certain attorneys, denominated collectively as the Plaintiffs’ Steering Committee (PSC), to act as lead and liaison counsel for the plaintiffs. In Nineteen Appeals, we summarized the roles played by the PSC and the individually retained plaintiffs’ attorneys (IRPAs), respectively:

The PSC members looked after the big picture: mapping the overarching discovery, trial, and settlement strategies and coordinating the implementation of those strategies. The IRPAs handled individual client communication and other case-specific tasks such as answering interrogatories addressed to particular plaintiffs, preparing and attending the depositions of their clients, and taking depositions which bore on damages. The IRPAs also worked with Judge Bechtle [the “settlement judge”] on a case-by-case basis in his efforts to identify and/or negotiate appropriate settlement values for individual claims. When Judge Acosta determined that the plaintiffs should try twelve representative claims as a means of facilitating settlement,- a collaborative composed of three PSC members and four IRPAs bent their backs to the task.

Nineteen Appeals, 982 F.2d at 605.

The combined efforts of all concerned generated a settlement fund approximating $220,000,000. The district court computed the payments due under the various contingent fee agreements, deducted the total (roughly $68,000,000) from the overall settlement proceeds, and placed that sum in an attorneys’ fee fund (the Fund). 1 In his initial attempt to disburse the Fund, Judge Acosta used an enhanced lodestar to compute the PSC’s fees, and awarded some $36,000,000 (52% of the Fund) to PSC members in their capacity as such, leaving the balance to be distributed among the IRPAs. A group of lawyers (mostly, but not exclusively, “non-PSC” IRPAs) 2 succeeded in vacating this award on the ground that the proceedings were procedurally flawed. See id. at 610-16.

The victory proved to be illusory. On remand, the district court abandoned the lodestar approach, adopted the percentage of the fund (POF) method, and recalculated the fees based on what it termed “the relative significance of the labor expended by the IRPAs and PSC members in instituting, advancing, or augmenting the plaintiffs’ settlement fund.” Using this methodology, the court awarded 70% of the Fund to PSC members in their capacity as such, thereby increasing their share of the fees by some $11,000,000, while simultaneously reducing the IRPAs’ share of the Fund by the same amount. These appeals ensued.

II. ADEQUACY OF THE PROCEEDINGS

In a virtual echo of the claims advanced in Nineteen Appeals, appellants (all of whom are IRPAs) characterize the proceedings by which the district court determined the allo *301 cation of the Fund as unfair. Specifically, appellants assert that the revamped procedural framework violated their rights to due process, and that, in all events, the court abused its discretion in erecting the framework. We consider these assertions in sequence.

A. Due Process.

In Nineteen Appeals, 982 F.2d at 610-16, we discussed the due process considerations implicated in the fee-setting aspect of this litigation. We again use the triangular construct of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether the district court afforded the IRPAs “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333, 96 S.Ct. at 902 (quoting Armstrong v. Manzo, 380 U.S. 645, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)).

The first Mathews factor involves a specification of “the private interest that will be affected by the official action.... ” Id. at 335, 96 S.Ct. at 903. Rehashing this point would serve no useful purpose. We conclude, for precisely the same reasons articulated in our earlier opinion, that the IRPAs have a salient private interest in the fees due them for services rendered. See Nineteen Appeals, 982 F.2d at 612.

The second Mathews factor requires us to examine the risk of error presented by the district court’s procedures. See Mathews, 424 U.S. at 335, 96 S.Ct. at 903. The last time around we determined that the hearing format invited error. See Nineteen Appeals, 982 F.2d at 612-13. Appellants urge us to find that the proceedings on remand represented no real improvement and again presented an intolerable risk of error— this time because the district court refused to hold an evidentiary hearing, to allow free-form discovery, or to permit cross-examination of PSC members. We conclude, for reasons described more fully in Part 11(B), infra, that the format revisions cured the infirmities that led us to invalidate the district court’s earlier effort.

The third Mathews factor necessitates an assessment of the public interest, including “the fiscal and administrative burdens” that improved procedural requirements would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. Here, too, past is prologue: we studied this point in the course of the first appeal and remarked the “substantial governmental interest in conserving scarce judicial resources.” Nineteen Appeals, 982 F.2d at 614. We also recognized the reasonableness of keeping tight controls on the fee dispute in light of the large number of lawyers involved, the lengthy shelf life of the litigation, and the Supreme Court’s admonition that “[a] request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). This important public interest remains intact.

To sum up, the district court reformed its ways, significantly moderating the restrictions originally imposed on the IRPAs. The court levelled the playing field by permitting the IRPAs to present their case in precisely the same manner as their litigation adversaries. Moreover, the court gave both camps adequate notice and a meaningful opportunity to be heard. From a procedural standpoint, then, the adjudicative process employed on remand met the test of fundamental fairness and gave appellants the process that was due.

B. Abuse of Discretion.

Appellants strive to convince us that Judge Acosta abused his discretion in authoring three procedural rulings, namely, (1) denying appellants’ entreaty that an evidentiary hearing be held; (2) denying the bulk of their discovery requests; and (3) denying them the privilege of cross-examination. We are not persuaded.

1. Lack of an Evidentiary Hearing. We need not tarry over the supposed error in refusing to hold an evidentiary hearing. 3 A district court is not obliged to *302 convene an evidentiary hearing as a means of resolving every attorneys’ fee dispute. See Nineteen Appeals, 982 F.2d at 614; Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 528 (1st Cir.1991). Because evidentiary hearings in fee disputes are not mandatory, the decision not to convene one is reviewed deferentially, using an abuse-of-discretion standard. See Weinberger, 925 F.2d at 527. In conducting that review, appellate tribunals cannot woodenly apply a preconceived matrix. Rather, flexibility is the watchword. Because a district court has available to it a “wide range of procedures” through which it can “bring a sense of fundamental fairness to the fee-determination hearing while at the same time husbanding the court’s resources,” Nineteen Appeals, 982 F.2d at 614, flexibility implies substantial discretion. Therefore, when the court chooses among the available options, it can mix and match.

This emphasis on flexibility is heightened when an evidentiary hearing is requested. Even in situations far more inviting than fee disputes, we have been chary about mandating such hearings. See, e.g., Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir.1988) (observing that matters often “can adequately be ‘heard’ on the papers”). We favor a “pragmatic approach” to the question of whether, in a given situation, an evidentiary hearing is required. Id. at 893. The key determinant is whether, “given the nature and circumstances of the case ... the parties [had] a fair opportunity to present relevant facts and arguments to the court, and to counter the opponents’ submissions.” Id. at 894. Taking this approach in Aoude, we upheld the issuance of a preliminary injunction without an evidentiary hearing, noting, inter alia, that the judge was “obviously familiar” with the facts and had afforded the parties several opportunities to make written submissions. Id.

The Aoude model can readily be adapted to requests for hearings anent attorneys’ fees. Appellants’ protest cannot survive the resultant comparison. Judge Acosta knew the case inside and out. He gave the protagonists ample opportunity to present both factual data and legal arguments. He set no page restrictions on written submissions, permitting the IRPAs to proffer thousands of pages of documents both in opposition to the PSC’s requisitions and in support of then-own fee requests. 4 These filings allowed the IRPAs to go into painstaking detail both as to their own contribution to the litigation and as to the reasons why the PSC members deserved a relatively modest slice of the pie for their services in that capacity.

To be sure, this is a high-stakes dispute, but that fact, in and of itself, does not warrant handcuffing the trial court. Matters of great consequence are often decided without live testimony. See, e.g., id. at 893-94 (holding that an evidentiary hearing is not obligatory in respect to an application for preliminary injunction); United States v. DeCologero, 821 F.2d 39, 44 (1st Cir.1987) (same, regarding criminal defendant’s motion to reduce his sentence); Amanullah v. Nelson, 811 F.2d 1, 16-17 (1st Cir.1987) (same, regarding habeas review of asylum applicant’s detention during exclusion proceedings). In the last analysis, what counts is not the prize at stake, but whether particular parties received “a fundamentally fair chance to present [their] side of the story.” Nineteen Appeals, 982 F.2d at 611.

*303 The controlling legal principle, then, is that parties to a fee dispute do not have the right to an evidentiary hearing on demand. When the written record affords an adequate basis for a reasoned determination of the fee dispute, the court in its discretion may forgo an evidentiary hearing. Here, it is pellucid that the litigants’ extensive written submissions comprised an effective substitute for such a hearing — particularly since the judge had lived with the litigation from the start and had an encyclopedic knowledge of it. Under these circumstances, the court did not err in refusing to hold yet another hearing. See, e.g., Norman v. Housing Auth., 836 F.2d 1292, 1303 (11th Cir.1988) (upholding propriety of awarding attorneys’ fees without an evidentiary hearing “based solely on affidavits in the record”); Bailey v. Heckler, 777 F.2d 1167, 1171 (6th Cir.1985) (explaining that an evidentiary hearing is not required so long as the record is sufficient to permit meaningful review); National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1330 (D.C.Cir.1982) (holding that district court may in its discretion decline to convene a fee hearing where information generated by “documentation accompanying the fee application and through appropriate discovery ... provides an adequate factual basis for an award”); Konczak v. Tyrrell, 603 F.2d 13, 19 (7th Cir.1979) (indicating that “depth of the briefing” can render a hearing on fees unnecessary), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980); see also DeJesus v. Banco Popular de P.R., 951 F.2d 3, 7 (1st Cir.1991) (finding no error in lack of an eviden-tiary hearing regarding counsel fees absent some “special issue as to which the court needed the assistance of counsel or witnesses”).

2. Restrictions on Discovery. Apart from the refusal to convene a full-scale hearing, appellants also complain that the court demonstrated too great an aversion to discovery initiatives. But unlimited adversarial discovery is not a necessary — or even a usual — concomitant of fee disputes, see National Ass’n of Concerned Veterans, 675 F.2d at 1329 (noting that, in general, fee contests should not involve “the type of searching discovery that is typical where issues on the merits are presented”), and, in the circumstances of this case, we think that the court acted well within the province of its discretion in refusing to allow more elaborate discovery.

The Due Process Clause does not require freewheeling adversarial discovery as standard equipment in fee contests. See Nineteen Appeals, 982 F.2d at 614. This case exemplifies the wisdom of the rule. The district court did not shut off all discovery, and the procedures that the court employed — especially the compelled exchange of documentation — minimized the need for additional discovery by giving the IRPAs the raw material that they needed to sift through the particulars of the PSC’s fee application. In other words, the court ensured that the IR-PAs had access to all the data reasonably necessary to formulate their objections, 5 including all the PSC members’ time-and-expense submissions, summaries thereof, detailed accounts of the procedures used by the PSC to gather, review, and audit time records, and the working papers, correspondence, and documentation generated by the PSC’s accountants during the compilation process. With this banquet of information spread before them, appellants then partook of the court’s liberality in allowing them to formulate extensive written submissions.

Furthermore, the court below also had a right to consider the extent to which appellants’ request for discovery threatened to multiply the proceedings and turn the fee dispute into a litigation of mammoth proportions. Judge Acosta characterized the IR-PAs’ discovery foray-which encompassed, inter alia, production of tax returns for employees of all PSC members’ firms and details anent fringe benefits (including vacations, maternity leaves, and the provision of training programs) — as “a discovery scheme of needless and unreasonable proportions.” *304 It is surpassingly difficult to fault this characterization.

The sweeping nature of appellants’ request, coupled with the fact that the focus of the hearings had shifted away from the lodestar and toward a task-oriented assessment of the lawyers’ participation in the litigation, give substance to the district court’s fears that granting appellants’ supplication would have started the parties on the road to a wasteful and time-consuming “satellite litigation.” On this ramified record, appellants can demonstrate neither a high level of need for incremental discovery nor preponderant equities in favor of their request. Hence, we cannot say that the district court’s denial of further discovery constituted an abuse of the court’s considerable discretion. See, e.g., National Ass’n of Concerned Veterans, 675 F.2d at 1329 (holding that district court “retains substantial discretion based on its view of the submissions as a whole” to limit further discovery).

3. Lack of Cross-Examination. As a subset of their claims regarding the supposed necessity for both an evidentiary hearing and additional discovery, appellants contend that the district court should have allowed them to cross-examine the PSC members concerning the hours that they logged and their contribution to the creation of the Fund. This is merely a backdoor attempt to rekindle an extinguished flame and satisfy appellants’ thwarted desire for either an evidentiary hearing or extensive depositions.

In Chongris v. Board of Appeals, 811 F.2d 36 (1st Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987), we held that, in the context of an administrative hearing, lack of cross-examination did not work a violation of due process. See id. at 41^2. So it is here. Moreover, because the lower court could reasonably conclude that its liberal policy with regard to written submissions, in conjunction with the IRPAs’ access to PSC documentation, obviated the need for further probing via cross-examination, pretermitting cross-questioning did not constitute an abuse of discretion. Cf. Copeland v. Marshall, 641 F.2d 880, 905 n. 57 (D.C.Cir.1980) (en banc) (noting that a live hearing is not necessary if “the adversary papers filed by plaintiff and defendant ... adequately illuminate the factual predicate for a reasonable fee”).

Appellants’ attempt to anchor their claimed right to cross-question PSC members on language excerpted from our earlier opinion, see, e.g., Nineteen Appeals, 982 F.2d at 615, leaves them adrift. We flatly reject the suggestion, noting that appellants, to their discredit, have pieced the argument together by cutting words loose from their logical and contextual moorings, and ignoring limiting language that contradicts their interpretation.

The bottom line is that the district court did not err in refusing to convene an eviden-tiary hearing, declining to permit more wide-ranging discovery, and barring cross-examination. Thus, whether the issue is cast in a constitutional mold or considered under an abuse-of-discretion rubric, appellants’ challenge fails. Either way, the adjudicative process employed on remand passes muster.

III. APPROPRIATENESS OF THE METHODOLOGY

Appellants claim that the district court erred as a matter of law in embracing the POF method, rather than the lodestar method, during the fee-setting pavane. The issue of whether a district court may use a given methodology in structuring an award of attorneys’ fees is one of law, and, thus, is subject to de novo review. See Liberty Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir.1992).

A. Historical Perspective.

A few introductory comments may lend a sense of perspective. Traditionally, under what has come to be known as the “American Rule,” litigants bear their own counsel fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 245, 95 S.Ct. 1612, 1615, 44 L.Ed.2d 141 (1975). This rule is not without exceptions. Fee-shifting statutes comprise one category of exceptions. See, e.g., 42 U.S.C. §§ 1988, 2000e-5(k). So, too, certain equitable doctrines furnish a ba *305 sis for departing from the American Rule. See Nineteen Appeals, 982 F.2d at 606.

When statutory exceptions pertain, we have directed district courts, for the most part, to compute fees by using the time-and-rate-based lodestar method. See, e.g., United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 15 (1st Cir.1988); Segal v. Gilbert Color Sys., Inc., 746 F.2d 78, 85-86 (1st Cir.1984); see also City of Burlington v. Dague, — U.S. -, -, 112 S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992) (acknowledging, in the statutory fee-shifting context, “a strong presumption that the lodestar represents the reasonable fee”) (citation and internal quotation marks omitted). A court arrives at the lodestar by determining the number of hours productively spent on the litigation and multiplying those hours by reasonable hourly rates. See Blum v. Stenson, 465 U.S. 886, 896-902, 104 S.Ct. 1541, 1547-51, 79 L.Ed.2d 891 (1984); Hensley, 461 U.S. at 433, 103 S.Ct. at 1939; Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992).

Although the lodestar method is entrenched in the statutory fee-shifting context, a growing number of courts have looked elsewhere in “common fund” cases — a category that encompasses cases in which “a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). 6 The POF method represents one such alternative approach to fee-setting. This method functions exactly as the name implies: the court shapes the counsel fee based on what it determines is a reasonable percentage of the fund recovered for those benefitted by the litigation. See, e.g., Camden I Condo. Ass’n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir.1991).

Contrary to popular belief, it is the lodestar method, not the POF method, that breaks from precedent. Traditionally, counsel fees in common fund cases were computed as a percentage of the fund, subject, of course, to considerations of reasonableness. See, e.g., Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 127-28, 5 S.Ct. 387, 392-93, 28 L.Ed. 915 (1885). It was not until the mid-1970s that judicial infatuation with the lodestar method started to spread. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1266 (D.C.Cir.1993) (chronicling history of the debate). Many courts embraced the new approach, and a wall of cases soon arose. See, e.g., Copeland, 641 F.2d at 890-91; Furtado v. Bishop, 635 F.2d 915, 919-20 (1st Cir.1980); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977); Grunin v. International House of Pancakes, 513 F.2d 114, 128 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973).

A crack in the wall appeared in 1984 when the Supreme Court took pains to distinguish the calculation of counsel fees under fee-shifting statutes from the calculation of counsel fees under the common fund doctrine. The court described the latter group as comprising cases in which “a reasonable fee is based on a percentage of the fund bestowed on the class.” Blum, 465 U.S. at 900 n. 16, 104 S.Ct. at 1550 n. 16. Since Blum involved the application of the lodestar under a fee-shifting statute, footnote 16 is dictum. Yet, it can hardly be dismissed as a slip of the pen, and considered dictum emanating from the High Court carries great persuasive force. 7 See Dedham Water Co. v. Cumber *306 land Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir.1992) (stating general rule that courts should give “considerable weight” to dictum that appears “considered as opposed to casual”); McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 19 (1st Cir.1991) (same), cert. denied, 504 U.S. 910, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992).

Hard on the heels of footnote 16, the Third Circuit, which had been in the forefront of the movement toward the lodestar method, see, e.g., Lindy Bros., supra, sounded a note of caution. Its blue-ribbon task force, although recommending continued use of the lodestar technique in statutory fee-shifting cases, concluded that all fee awards in common fund cases should be structured as a percentage of the fund. See Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 255 (1985) (hereinafter “Third Circuit Report”).

Together, footnote 16 and the Third Circuit Report led to a thoroughgoing reexamination of the suitability of using the lodestar method in common fund cases. This reexamination, in turn, led to more frequent application of the POF method in such cases. See Federal Judicial Center, Awarding Attorneys’Fees and Managing Fee Litigation 63-64 (1994) (hereinafter “FJC Report”) (canvassing case law). Today, the D.C. Circuit and the Eleventh Circuit require the use of the POF method in common fund cases, see Swedish Hosp., 1 F.3d at 1271; Camden I, 946 F.2d at 774, and four other circuits confer discretion upon the district court to choose between the lodestar and POF methods in common fund cases, see In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1295 (9th Cir.1994); Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 516 (6th Cir.1993); Harman v. Lyphomed, Inc., 945 F.2d 969, 975 (7th Cir.1991); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir.), cert. denied, 488 U.S. 822, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988). We have yet to pass upon the legitimacy of the POP method in common fund cases. 8

B. Computing Fees in Common Fund Cases.

We have previously classified this as a common fund case. 9 Appellants do not dispute this taxonomy, but, rather, they insist that Judge Acosta erred in using the POF method because the lodestar technique should hold sway in all attorneys’ fee determinations. 10 Though appellants concede that this court has not yet decided what meth *307 od(s) of fee allocation appropriately may be invoked in common fund cases, they assert that the lodestar is a far better alternative and that its use should be mandated in this circuit.

We think that a more malleable approach is indicated. Thus, we hold that in a common fund case the district court, in the exercise of its informed discretion, may calculate counsel fees either on a percentage of the fund basis or by fashioning a lodestar. Our decision is driven both by our recognition that use of the POF method in common fund cases is the prevailing praxis and by the distinct advantages that the POF method can bring to bear in such cases.

In complex litigation — and common fund eases, by and large, tend to be c