Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39248 Filed 05/07/21 Page 1 of 13
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`EXHIBIT 3
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`

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`581 FEDERAL REPORTER, 3d SERIES
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`neously volunteered in a deliberate at-
`tempt to threaten him—a new and distinct
`crime. In this regard, no individual has a
`constitutional right to be warned of his
`rights before he commits a crime. United
`States v. Castro, 723 F.2d 1527 (11th Cir.
`1984). Thus, the district court properly
`affirmed the magistrate judge’s ruling de-
`nying the motion to suppress.
`
`IV.
`
`For these reasons, we affirm the judg-
`ment of the district court.
`
`,
`
`
`
`
`
`Malcolm MOULTON, Plaintiff–
`Appellant (08–2311),
`
`Ron Anderson, Lead putative class
`member, et al., Movants–
`Appellants (08–2312),
`
`Oundra Stanley, et al., Plaintiffs–
`Appellees,
`
`v.
`UNITED STATES STEEL CORPO-
`RATION, Defendant–Appellee.
`
`Nos. 08–2311, 08–2312.
`
`United States Court of Appeals,
`Sixth Circuit.
`
`Argued: Aug. 4, 2009.
`Decided and Filed: Sept. 22, 2009.
`Background: City residents brought class
`action against steel mill owner, alleging
`nuisance, in connection with air pollution
`generated by the mill. Following settle-
`ment of class action, certain class members
`filed objections. The United States District
`Court for the Eastern District of Michi-
`
`gan, Avern Cohn, J., 2008 WL 4225781,
`overruled objections. Objectors appealed.
`Holdings: The Court of Appeals, Sutton,
`Circuit Judge, held that:
`(1) release of existing continuing-nuisance
`claims did not render settlement
`agreement overly broad in scope, dis-
`serving of the public interest, or other-
`wise unfair;
`(2) settlement agreement was not product
`of collusion;
`(3) award of $300 to each of 4026 class
`members, plus $10,000 to class repre-
`sentatives was reasonable distribution
`of $4.45 million settlement;
`(4) District Court was required to more
`fully explain rationale for approving
`attorney fees award of 30 percent;
`(5) District Court appropriately exercised
`its discretion in limiting involvement of
`attorney who purportedly represented
`certain class members;
`(6) District Court was not required to
`open a third opt-out period for putative
`class members after the terms of pro-
`posed settlement were published; and
`(7) District Court was not required to ac-
`cept opt-out notices signed by attor-
`ney.
`Affirmed in part, vacated in part, and re-
`manded.
`
`1. Compromise and Settlement O57
`To determine whether a settlement
`agreement in a class action satisfies the
`fairness standard, a court considers: (1)
`the risk of fraud or collusion, (2) the com-
`plexity, expense and likely duration of the
`litigation, (3) the amount of discovery en-
`gaged in by the parties, (4) the likelihood
`of success on the merits, (5) the opinions of
`class counsel and class representatives, (6)
`the reaction of absent class members, and
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39250 Filed 05/07/21 Page 3 of 13
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`MOULTON v. U.S. STEEL CORP.
`Cite as 581 F.3d 344 (6th Cir. 2009)
`
`345
`
`(7) the public interest. Fed.Rules Civ.
`Proc.Rule 23(e)(2), 28 U.S.C.A.
`
`2. Compromise and Settlement O56.1
`In determining whether a settlement
`in a class action is overly broad, the ques-
`tion is not whether the definition of the
`claim in the complaint and the definition of
`the claim in the release overlap perfectly;
`it is whether the released claims share a
`factual predicate with the claims pled in
`the complaint. Fed.Rules Civ.Proc.Rule
`23(e)(2), 28 U.S.C.A.
`
`3. Compromise and Settlement O61
`Release of existing continuing-nui-
`sance claims did not render settlement
`agreement overly broad in scope, or dis-
`serving of the public interest, in class ac-
`tion brought by city residents against steel
`mill; complaints and amended complaints
`all included claim for continuing private
`nuisance in connection with air pollution
`generated by mill, release did not settle
`claims
`for
`future continuing nuisance
`claims, such as claims based on emissions
`from new equipment or different manufac-
`turing processes, but only extended to con-
`tinuing nuisance claims that arose out of
`operations or conditions that existed, be-
`gan, or were initiated by the mill prior to
`the effective settlement date, and the
`agreement did not restrict future enforce-
`ment actions based on statutory violations.
`Fed.Rules Civ.Proc.Rule
`23(e)(2),
`28
`U.S.C.A.
`
`4. Compromise and Settlement O61
`Settlement agreement in class action
`brought by city residents against steel
`mill, alleging nuisance, in connection with
`air pollution generated by the mill was
`not a product of collusion between class
`counsel and steel mill; parties litigated for
`almost four years before reaching a settle-
`ment, there were numerous contested pre-
`trial motions, class counsel engaged in ex-
`tensive discovery, the agreement
`itself
`
`was a product of months of supervised ne-
`gotiations, including two facilitated media-
`tions and a settlement conference with the
`court, and class counsel did not exclude
`class representatives from settlement dis-
`cussions.
` Fed.Rules
`Civ.Proc.Rule
`23(e)(2), 28 U.S.C.A.
`
`5. Compromise and Settlement O61
`Award of $300 to each of 4026 class
`members, plus $10,000 to class representa-
`tives was reasonable distribution of $4.45
`million settlement, in class action brought
`by city residents against steel mill, alleg-
`ing nuisance, in connection with air pollu-
`tion generated by the mill; awards were
`sufficient to compensate class members for
`mill’s pre-release conduct, which was what
`settlement covered. Fed.Rules Civ.Proc.
`Rule 23(e)(2), 28 U.S.C.A.
`
`6. Attorney and Client O155
`District Court was required to more
`fully explain rationale for approving attor-
`ney fees award of 30 percent of $4.45
`million settlement, in class action brought
`by city residents against steel mill, alleg-
`ing nuisance, in connection with air pollu-
`tion generated by the mill, where District
`Court only stated that attorney fee per-
`centage was fair and reasonable consider-
`ing the several years of litigation.
`
`7. Federal Courts O830
`The Court of Appeals gives great def-
`erence to district courts when reviewing an
`attorney fees award.
`
`8. Attorney and Client O155
`In common-fund, class action cases, a
`court requires only that awards of attor-
`ney fees for class counsel be reasonable
`under the circumstances.
`
`9. Federal Civil Procedure O2737.13
`Often, but by no means invariably, a
`district court’s explanation for an attorney
`fees award in a class action will address
`
`

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`581 FEDERAL REPORTER, 3d SERIES
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`these factors: (1) the value of the benefit
`rendered to the plaintiff class, (2) the value
`of the services on an hourly basis, (3)
`whether the services were undertaken on a
`contingent fee basis, (4) society’s stake in
`rewarding attorneys who produce such
`benefits in order to maintain an incentive
`to others, (5) the complexity of the litiga-
`tion, and (6) the professional skill and
`standing of counsel involved on both sides.
`
`10. Federal Civil Procedure O562
`District Court appropriately exercised
`its discretion in limiting involvement of
`attorney, who purportedly represented
`certain class members, by initially denying
`attorney’s motion to appear until after pro-
`viding affected class members with an ex-
`tended opt-out period to sort out exactly
`which class members wanted attorney to
`represent them, in class action brought by
`city residents against steel mill, alleging
`nuisance, in connection with air pollution
`generated by the mill; attorney had en-
`gaged in ethically questionable communi-
`cations with putative class members by
`mailing unannounced solicitation of opt
`outs, which included his guarantee that
`individuals receiving the letter would be
`his clients whether they stayed in or opted
`out.
` Fed.Rules
`Civ.Proc.Rule
`23(c)(2)(B)(iv), 28 U.S.C.A.
`
`11. Federal Civil Procedure O180
`District Court was not required to
`open a third opt-out period for putative
`class members after the terms of proposed
`settlement were published, in class action
`brought by city residents against steel
`mill, alleging nuisance claims in connection
`with air pollution generated by mill; there
`were two other opt-out periods, and there
`was no showing that any error required a
`
`third opt-out period. Fed.Rules Civ.Proc.
`Rule 23(e)(4), 28 U.S.C.A.
`
`12. Federal Civil Procedure O180
`District Court was not required to
`accept opt-out notices signed by attorney
`purportedly on behalf of his clients, in
`class action brought by city residents
`against steel mill, alleging nuisance claims
`in connection with air pollution generated
`by mill; to avoid risk that the attorney-
`signed forms did not reflect wishes of class
`members, District Court properly exer-
`cised
`its power to require
`individually
`signed opt-out forms.
`
`ARGUED: James P. Murphy, Berry
`Moorman P.C., Detroit, Michigan, for Ap-
`pellants. J. Van Carson, Squire, Sanders
`& Dempsey L.L.P., Cleveland, Ohio, Peter
`W. Macuga, II, Macuga, Liddle & Dubin,
`Detroit, Michigan, for Appellees. Donnel-
`ly W. Hadden, Donnelly W. Hadden, P.C.,
`Ann Arbor, Michigan, for Movants ON
`BRIEF: James P. Murphy, Richard R.
`Zmijewski, Sr., Berry Moorman P.C., De-
`troit, Michigan, for Appellants. J. Van
`Carson, Lianne Mantione, John D. Lazzar-
`etti, Squire, Sanders & Dempsey L.L.P.,
`Cleveland, Ohio, Peter W. Macuga, II, Ma-
`cuga, Liddle & Dubin, Detroit, Michigan,
`Jason J. Thompson, Sommers Schwartz,
`Southfield, Michigan, William J. McKim,
`United States Steel Corporation Law De-
`partment, Pittsburgh, Pennsylvania, Jack
`O. Kalmink, Clark Hill PLC, Detroit,
`Michigan, for Appellees.
` Donnelly W.
`Hadden, Donnelly W. Hadden, P.C., Ann
`Arbor, Michigan, for Movants.
`
`Before: CLAY and SUTTON, Circuit
`Judges; THAPAR, District Judge.*
`
`* The Honorable Amul R. Thapar, United States
`District Judge for the Eastern District of Ken-
`
`tucky, sitting by designation.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39252 Filed 05/07/21 Page 5 of 13
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`MOULTON v. U.S. STEEL CORP.
`Cite as 581 F.3d 344 (6th Cir. 2009)
`
`347
`
`OPINION
`SUTTON, Circuit Judge.
`Malcolm Moulton challenges the district
`court’s approval of a settlement agreement
`arising from a class action filed by the
`neighbors of a steel mill owned by United
`States Steel Corporation. A group of oth-
`er class members, led by Ron Anderson,
`join Moulton’s objections, and separately
`challenge the district court’s management
`of the opt-out process and its handling of
`attorney Donnelly Hadden’s attempts to
`represent them. We affirm, except with
`respect to the district court’s approval of
`the attorney’s fee award, which we vacate
`and remand for further explanation.
`
`I.
`In 2003, U.S. Steel purchased a steel
`mill bordering Ecorse and River Rouge,
`Michigan. At the time, the mill’s pollu-
`tion-control equipment was in disrepair.
`After purchasing the mill, the company
`spent $65 million to upgrade the old pollu-
`tion-control equipment and to buy new
`equipment.
`About a year after the purchase, several
`residents of Ecorse and River Rouge filed
`a class-action lawsuit against the company.
`The final amended complaint, filed in 2006,
`named seven residents as plaintiffs: Oun-
`dra Stanley, Malcolm Moulton, Karen
`Ward, Charles Hunter, Betty Compton,
`Marcia Brown and Tansley Ann Clarkson.
`The plaintiffs raised several tort and statu-
`tory claims, all to the effect that the mill
`wrongfully discharged harmful ‘‘metal-like
`dust and flakes’’ that settled on their real
`and personal property. ROA 1070.
`In March 2006, the district court certi-
`fied a class that included all individuals
`owning property or residing
`in River
`Rouge and Ecorse at any point after U.S.
`Steel purchased the mill. The certification
`order designated Jason Thompson and Pe-
`
`ter Macuga, the attorneys who filed the
`final amended complaint, as Class Counsel.
`Several weeks after the court certified
`the class, but before it had approved a
`method for notifying class members, attor-
`ney Donnelly Hadden sent a letter to ‘‘All
`River Rouge & Ecorse Clients’’ regarding
`the ‘‘Suit Against U.S. Steel.’’ ROA 1118.
`It is not clear on this record how many
`individuals received the
`letter or how
`many class members, if any, had previous-
`ly retained Hadden to represent them in
`the lawsuit. The letter says that Hadden
`had been meeting with residents of the two
`cities about the litigation, and encourages
`its recipients to exclude themselves from
`the class, advising that doing so would be
`‘‘the best choice for everyone,’’ because
`‘‘people who ‘opt out’ TTT always get a
`much higher settlement than TTT the gen-
`eral population.’’ Id. To remain in the
`class, Hadden instructed, recipients had to
`complete an attached form and return it to
`Hadden’s office by April 10, 2006. Id.
`Hadden pledged to ‘‘opt out’’ any recipient
`who did not return the form. Id. Either
`way, the letter concluded, Hadden would
`‘‘continue to be [the recipients’] lawyer[ ],
`whether [they] choose to stay in the class
`or opt out.’’ Id. It appears that neither
`U.S. Steel nor Class Counsel learned of
`Hadden’s initiative until April 14, 2006,
`when U.S. Steel received a letter from
`Hadden listing the individuals he claimed
`to represent and purporting to place an
`attorney’s lien on any settlement proceeds.
`The court approved an official notice
`procedure about two months after Hadden
`sent his letter. The court required Class
`Counsel to send each class member an
`‘‘opt-out’’ form, which
`instructed class
`members who did not want to participate
`in the suit to sign the form and return it to
`Class Counsel by July 7, 2006.
`As the opt-out deadline approached,
`Hadden moved to enter an appearance as
`
`

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`581 FEDERAL REPORTER, 3d SERIES
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`counsel for 171 class members who pur-
`portedly had signed retainer agreements
`with him. Two days before the deadline,
`Hadden filed a motion on behalf of still
`more class members. Claiming that ‘‘583
`members of the class’’ had retained him
`and told him ‘‘they want to be excluded
`from the class’’ (presumably by not re-
`turning the form Hadden sent them), he
`asked for leave to file a collective, attor-
`ney-signed opt-out form. ROA 1144. The
`opt-out deadline passed without a ruling on
`any of the motions.
`In August 2006, the court denied Had-
`den’s motions, finding them ‘‘procedurally
`improper’’ because ‘‘Hadden is not counsel
`of record in this case.’’ ROA 1310. At the
`same time, it created a new opt-out period
`for the class members whom Hadden pur-
`ported to represent.
` Hadden’s clients
`could still opt out of the suit, the court
`instructed, but only by submitting an indi-
`vidually signed opt-out form, as opposed to
`one signed only by Hadden. Once the
`extended opt-out period closed, the order
`permitted Hadden to ‘‘take appropriate ac-
`tion with respect to those persons who
`have opted out and who[m] he represents.’’
`ROA 1310–11. At the end of this second
`opt-out period, Class Counsel submitted a
`final report tallying the number of individ-
`uals who had declined to participate in the
`suit.
`The dispute over Hadden’s role was a
`sideshow to the main events—extensive
`discovery, motions practice and eventually
`a proposed settlement agreement.
` In
`June 2008, nearly four years after the
`initial complaint and after months of nego-
`tiation, Class Counsel and U.S. Steel filed
`a joint motion for preliminary approval of
`a $4.45 million settlement agreement.
`Class representatives Karen Ward and
`Malcolm Moulton objected to initial ver-
`sions of the agreement, arguing (among
`other things) that the agreement allocated
`
`too much money to Class Counsel’s fees,
`and that the agreement’s release—which
`discharged claims arising from pollution
`emanating from the mill both ‘‘prior to’’
`the agreement and ‘‘in the future,’’ ROA
`1758—was too broad.
`The parties eventually narrowed the
`scope of the release. Rather than releas-
`ing all claims for future emissions, the final
`version of the release discharged continu-
`ing-nuisance claims relating to pollutants
`emitted ‘‘at any time up to and including’’
`the agreement’s execution date.
` ROA
`1987. In addition, the final version re-
`leased:
`[Claims for] [a]ll alleged damages, past,
`present, or future TTT under any theory
`of continuing nuisance, arising out of or
`relating to the maintenance of any struc-
`tures, any acts, any operations, or any
`conditions that existed, began, or were
`initiated [at the mill] prior to the Settle-
`ment Effective Date and that continue
`for an indefinite period of time, [includ-
`ing pollutants] emanating from [the mill]
`prior to the Settlement Effective Date
`or during all periods of time that any
`such structures, any such acts, any such
`operations, or any such conditions con-
`tinue. ROA 1987–88.
`The release contained several excep-
`tions. It did not bar ‘‘claims based solely
`on a future catastrophic [event].’’ ROA
`1988. Nor did it preclude ‘‘claims based
`solely on future operations by [U.S. Steel]
`that (i) involve substantially different man-
`ufacturing processes and (ii) result in sub-
`stantially different or greater air emis-
`sions, releases, or odors than current or
`historical operations.’’ Id.
`Moulton and Ward again objected,
`claiming that the agreement unfairly re-
`leased ‘‘any claims that occur in the fu-
`ture.’’
` ROA 1760. Attorney Hadden,
`acting on behalf of his clients, added ob-
`jections of his own. In addition to ob-
`
`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39254 Filed 05/07/21 Page 7 of 13
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`MOULTON v. U.S. STEEL CORP.
`Cite as 581 F.3d 344 (6th Cir. 2009)
`
`349
`
`jecting to the size of the settlement and
`the scope of the release, Hadden alleged
`that 34 class members had not been in-
`cluded in the final opt-out report due to
`clerical error, making
`it necessary to
`create another opt-out period for class
`members.
`After a final fairness hearing, at which
`Hadden and Moulton voiced their objec-
`tions, the court approved the settlement
`agreement. In a separate order, the court
`addressed each objection, finding that
`none supported rejecting the settlement
`agreement.
`
`II.
`[1] On appeal, Moulton and Hadden
`first argue—together—that the settlement
`agreement is not ‘‘fair, reasonable, and
`adequate.’’ Fed.R.Civ.P. 23(e)(2). To de-
`termine whether a settlement agreement
`satisfies Rule 23’s fairness standard, we
`consider: ‘‘(1) the risk of fraud or collu-
`sion; (2) the complexity, expense and like-
`ly duration of the
`litigation;
` (3) the
`amount of discovery engaged in by the
`parties; (4) the likelihood of success on the
`merits; (5) the opinions of class counsel
`and class representatives; (6) the reaction
`of absent class members; and (7) the pub-
`lic interest.’’ UAW v. Gen. Motors Corp.,
`497 F.3d 615, 631 (6th Cir.2007). Moulton
`and Hadden submit (1) that the agreement
`disserves the ‘‘public interest’’ due to the
`broad scope of the release, (2) that ‘‘collu-
`sion’’ between Class Counsel and U.S.
`Steel tarnished the agreement and (3) that
`the agreement improperly prioritizes the
`distribution of the settlement proceeds.
`We review the district court’s contrary
`conclusions for abuse of discretion. Id. at
`625.
`
`A.
`[2, 3] The objectors charge that the re-
`lease of the continuing-nuisance claims is
`
`unfair because the complaint contained no
`such claims and at a minimum the scope of
`the release goes ‘‘well beyond the claims
`pled in the complaint.’’ Moulton Br. 27.
`Since 2005, however, every version of the
`plaintiffs’ complaint—three versions in to-
`tal—included a claim for ‘‘continuing pri-
`vate nuisance.’’
` ROA 849, 874, 1090.
`Having expressly raised a continuing-nui-
`sance claim in each version of the com-
`plaint, the objectors are the last individu-
`als in a position to claim lack of notice that
`this claim was on the table at the settle-
`ment talks. Nor can they tenably argue
`that the release goes beyond these claims.
`The question is not whether the definition
`of the claim in the complaint and the defi-
`nition of the claim in the release overlap
`perfectly; it is whether the released claims
`share a
`‘‘factual predicate’’ with
`‘‘the
`claims pled in the complaint.’’ Olden v.
`Gardner, 294 Fed.Appx. 210, 220 (6th Cir.
`2008). That is true here, just as it was in
`Olden. See also Matsushita Elec. Indus.
`Co. v. Epstein, 516 U.S. 367, 376–77, 116
`S.Ct. 873, 134 L.Ed.2d 6 (1996) (construing
`Delaware law); TBK Partners, Ltd. v. W.
`Union Corp., 675 F.2d 456, 460 (2d Cir.
` Williams v. Gen. Elec. Capital
`1982);
`Auto. Lease, Inc., 159 F.3d 266, 273–74
`(7th Cir.1998).
`
`The objectors add that the release of
`continuing-nuisance claims amounts to a
`disguised—and unconscionable—release of
`future tort claims. The release prohibits
`class members from raising continuing-
`nuisance claims if they ‘‘aris[e] out of or
`relat[e] to the maintenance of any struc-
`tures TTT acts TTT operations TTT or TTT
`conditions that existed, began, or were ini-
`tiated at [the mill] prior to the Settlement
`Effective Date and that continue for an
`indefinite period of time.’’ ROA 1987–88.
`As the objectors read the release, it gives
`U.S. Steel a free pass to pollute however it
`would like, because, absent one excep-
`
`

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`‘‘future catastrophic’’ events,
`tion—for
`ROA 1988—it forever bars class members
`from suing for property damage on a theo-
`ry of continuing nuisance.
`We do not read the release that broadly.
`The bar on future continuing-nuisance
`claims applies only to claims arising out of
`conditions that existed prior to the settle-
`ment. It does not preclude future continu-
`ing-nuisance claims based on emissions
`from new equipment installed after the
`date of settlement. Nor does it bar future
`claims based on old equipment, so long as
`the continuing nuisance is a ‘‘new’’ one, so
`long in other words as the nuisance did not
`begin (and did not begin ‘‘continuing’’) un-
`til after the settlement’s effective date.
`By releasing future claims only for pre-
`settlement conduct, the agreement sensi-
`bly—and reasonably—accommodates U.S.
`Steel’s interest in protecting itself from
`suits based on identical claims that existed
`at the time of the complaint (and settle-
`ment) without extinguishing the class’s
`right to file distinct claims in the future.
`The objectors persist that much of the
`mill’s equipment is old and that, notwith-
`standing U.S. Steel’s recent $65 million
`investment in pollution control, a palpable
`risk of further pollution exists in the fu-
`ture, particularly as the new pollution con-
`trols age. At that point, even under our
`reading, class members seeking recovery
`for future property damage will have to
`show that the mill’s emissions are a ‘‘new
`continuing nuisance,’’ not a nuisance that
`existed pre-settlement, was abated with
`the new pollution controls and gradually
`worsened. The exceptions to the release,
`the objectors warn, would not help much in
`this situation, because they extend only to
`‘‘future catastrophic’’ events or
`‘‘claims
`based solely on future operations TTT that
`both
`(i)
`involve substantially different
`manufacturing processes and (ii) result in
`substantially different or greater air emis-
`
`sions, releases or odors than current or
`historical operations.’’ ROA 1988. And
`because neither the steel-manufacturing
`process nor the pollutants it emits is likely
`to change materially from year to year, it
`may prove difficult to establish that a fu-
`ture claim is based on ‘‘substantially differ-
`ent’’ conduct.
`Even if this is true, it does not establish
`that the scope of the release disserves the
`public interest by removing all future in-
`centives for U.S. Steel to maintain their
`equipment and limit toxic emissions. The
`steel company, keep in mind, remains sub-
`ject to the regulation of two sovereigns—
`Michigan and the United States—which
`have enacted extensive environmental laws
`and regulations and which have sophisti-
`cated agencies devoted to ensuring compli-
`ance with them. In addition to permitting
`claims for ‘‘new’’ continuing nuisances, the
`settlement
`agreement
`says
`nothing
`about—and thus does not restrict—future
`enforcement actions based on statutory vi-
`olations. Not just the federal and state
`agencies may enforce these laws; so too
`may the class members (and other individ-
`uals): They may act as private attorneys
`general to enforce the Clean Air Act, by
`reporting suspected violations to the EPA
`and by bringing a citizen suit if the federal
`and state authorities fail to address their
`allegations, see 42 U.S.C. § 7604, or they
`may sue for declaratory and equitable re-
`lief to enforce the Michigan Environmental
`Protection Act, see Mich. Comp. Laws
`§ 324.1701.
`The district court did not abuse its dis-
`cretion in approving this release. The
`release is not as far-reaching as the ob-
`jectors perceive, and it is not unfair, un-
` See Fed.
`reasonable or
`inadequate.
`R.Civ.P. 23(e)(2). The settlement process
`depends on compromise, and the objec-
`tors cannot expect U.S. Steel to give up
`$4.45 million dollars, based on conduct
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39256 Filed 05/07/21 Page 9 of 13
`
`MOULTON v. U.S. STEEL CORP.
`Cite as 581 F.3d 344 (6th Cir. 2009)
`
`351
`
`since 2003, while leaving class members
`free to turn around and sue the next day
`for the same conduct. The release rea-
`sonably balances U.S. Steel’s interest in
`resolving the claims and the public inter-
`est in protecting River Rouge and Ecorse
`residents from future harmful emissions.
`
`B.
`[4] Neither have the objectors made
`the case that the agreement is a product of
`collusion. See Williams v. Vukovich, 720
`F.2d 909, 921 (6th Cir.1983). The duration
`and complexity of the litigation, to start,
`undermines the objectors’ suspicions. The
`parties litigated for almost four years be-
`fore reaching a settlement agreement.
`The court fielded numerous contested pre-
`trial motions. Class Counsel pursued mul-
`tiple avenues to gather evidence—from
`consulting with Michigan environmental
`authorities to conducting numerous sub-
`stantive depositions. And the agreement
`itself was a product of months of super-
`vised negotiations, two facilitated media-
`tions and a settlement conference with the
`court. It is difficult to maintain that Class
`Counsel took all of these steps merely to
`mask its collusion with U.S. Steel, and that
`the one entity with a bird’s eye view of the
`proceedings—the district court judge—
`somehow missed the signs that the parties
`were merely engaged in pretense and pos-
`turing.
`The objectors also see evidence of collu-
`sion where it does not exist. The scope of
`the release, as we have shown, is not as far
`reaching as the objectors claim and will
`not give U.S. Steel a blank check to pollute
`anew.
` And releasing a continuing-nui-
`sance claim that the plaintiffs included in
`their original complaint likewise does not
` See Olden, 294
`demonstrate collusion.
`Fed.Appx. at 220.
`Revisions to the settlement agreement
`that purportedly occurred ‘‘without the ad-
`
`vice, consent or knowledge of the Class
`Representative’’ and that the court ap-
`proved before notifying the class, Moulton
`Br. 24, also do not demonstrate collusion.
`By narrowing the release to future con-
`tinuing-nuisance claims arising out of pre-
`settlement
`conduct, as
`the
`targeted
`changes did, the court and parties re-
`sponded to Moulton’s objections. A revi-
`sion that makes an agreement more favor-
`able to class members, whether or not it
`occurred with the approval of the class
`representatives, does not establish collu-
`sion.
`
`The objectors argue further that the
`agreement is collusive because ‘‘the Class
`Representative had no input whatsoever’’
`on its terms. Moulton Br. 29. No doubt,
`‘‘[t]he specter of collusion’’ arises ‘‘in every
`situation where class counsel TTT negoti-
`ate[s] settlement terms without meaningful
`oversight by the class representative.’’
`Olden, 294 Fed.Appx. at 219 (citation and
`quotation marks omitted). But that ap-
`parition vanishes here because the objec-
`tors offer no evidence that Class Counsel
`excluded them from settlement discus-
`sions, much less that they did so for collu-
`sive reasons.
`
`C.
`
`[5] That leaves the $4.45 million settle-
`ment, which the agreement distributes as
`follows: $300 to each covered member of
`the class, limited to one award per house-
`hold; $10,000 to the seven class represen-
`tatives; and $1.335 million in attorney’s
`fees (thirty percent) and $622,279.86 in
`costs to class counsel. Any residual, the
`agreement says, goes to the River Rouge
`and Ecorse public schools. Because class
`counsel
`received
`4,026
`class-member
`claims, roughly $1.21 million will go to the
`claimants and roughly $1.28 million will go
`to the schools.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39257 Filed 05/07/21 Page 10 of 13
`
`352
`
`581 FEDERAL REPORTER, 3d SERIES
`
`The objectors first argue that class-
`member awards of $300 are unconsciona-
`bly low. But that objection is based on the
`misconception that the agreement releases
`all future tort claims. Having conceded
`that $300 would be sufficient ‘‘to release
`U.S. Steel from the future consequences of
`its pre-release conduct,’’ Moulton Br. 27,
`which is what the release purports to do,
`this contention goes nowhere. (Nor, it
`deserves mention, do the objectors or any
`other party protest the differential be-
`tween the $300 allotted to each class mem-
`ber and the $10,000 allotted to each class
`representative.)
`
`[6] The thirty percent attorney’s fee
`award, they add, is too high, claiming that
`it ‘‘will exceed the recovery of the Class by
`over $100,000.00.’’ Moulton Br. 32. But
`this estimate is wrong: The objectors fo-
`cus on the amount claimed rather than the
`amount allocated. Claimants, it is true,
`will in the aggregate receive less than
`Class Counsel. But that is because just
`4,026 class members submitted claims.
`Except for fees and costs, class members
`had the first shot at the settlement pro-
`ceeds—nearly $2.5 million by our esti-
`mate—which exceed the amount paid to
`Class Counsel by some measure. That the
`public schools will receive $1.28 million in
`unclaimed funds does not reflect on the
`settlement’s fairness.
`
`[7–9] Although we disagree that the
`attorney’s fee award on its face is unrea-
`sonable, we find merit in one argument:
`that the district court did not adequately
`explain
`its reason
`for approving the
`amount. We give great deference to dis-
`trict courts when reviewing an attorney’s
`fee award. Paschal v. Flagstar Bank, 297
`F.3d 431, 433–34 (6th Cir.2002). And in
`common-fund cases, we require ‘‘only that
`awards of attorney’s fees’’ ‘‘be reasonable
`under the circumstances.’’ Rawlings v.
`Prudential–Bache Properties, Inc., 9 F.3d
`
`513, 516 (6th Cir.1993). But for us to
`review, even deferentially, a district court’s
`‘‘exercise of discretion,’’ we must have
`something to go on—a district court’s rea-
`sons for ‘‘adopting a particular methodolo-
`gy and the factors considered in arriving
`at the fee.’’ Id. at 516. Often, but by no
`means invariably, the explanation will ad-
`dress these factors: ‘‘(1) the value of the
`benefit rendered to the plaintiff class; (2)
`the value of the services on an hourly
`basis; (3) whether the services were un-
`dertaken on a contingent fee basis; (4)
`society’s stake in rewarding attorneys who
`produce such benefits in order to maintain
`an incentive to others; (5) the complexity
`of the litigation; and (6) the professional
`skill and standing of counsel involved on
`both sides.’’ Bowling v. Pfizer, Inc., 102
`F.3d 777, 780 (6th Cir.1996).
`
`Yet here the district court’s only on-the-
`record explanation was this: the ‘‘attorney
`fee percentage [is] fair and reasonable con-
`sidering the several years of litigation.’’
`ROA 1994. Although an affidavit attached
`to the parties’ joint motion for settlement
`analyzed the reasonableness of the award
`using the six factors described above,
`nothing in the record suggests that the
`district court incorporated this analysis
`into its final ruling on the settlement. We
`thus remand the award’s reasonableness to
`the district court for further explanation.
`
`III.
`
`Attorney Hadden, on behalf of roughly
`300 clients, separately raises several other
`challenges. Throughout the litigation, in-
`deed even now, the parties have disputed
`which, if any, class members Hadden rep-
`resents. But we need not count heads, or
`determine whether he properly represent-
`ed any potential members of the class,
`because we deny Hadden’s objections in
`full.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2137-7, PageID.39258 Filed 05/07/21 Page 11 of 13
`
`MOULTON v. U.S. STEEL CORP.
`Cite as 581