The Seventh Circuit held that counsel was not entitled to any additional fees, where counsel's initial fees were received pursuant to fee-shifting statute. The Court further noted that additional fees would be unwarranted as class counsel: had filed untimely notice of appeal as to other aspects of underlying case; and sought remand of case based, in part, on a claim that certain class members had received too much compensation.
Two factors that largely informed this ruling include the fact that counsel:
1) had not entered into a contingency-fee contract.
2) sought both statutory fees AND a contingency fee.
The Seventh Circuit said, "we do not see a good reason why, in the absence of a contract, counsel should be entitled to money from the class on top of or in lieu of payment by the losing litigant." Thus, class counsel should enter into a contingency-fee contract with the named plaintiff and use the fee award to partially offset the contingent fee, counsel would be successful. See Venegas v. Mitchell, 495 U.S. 82 (1990).
Furthermore, the court did not foreclose a percentage of the common fund approach under those circumstances based upon its language that "even if it were sometimes appropriate to give a lawyer a slice of the class’s recovery on top of a fee-shifting award, this would not be the case to do it in."