In re: EAST PALESTINE TRAIN DERAILMENT MORGAN & MORGAN, Interested Party-

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0322p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: EAST PALESTINE TRAIN DERAILMENT
___________________________________________
MORGAN & MORGAN,
Interested Party-Appellant,
v.
ZOLL & KRANZ, LLC; BURG SIMPSON ELDREDGE
HERSH & JARDINE, P.C.; GRANT & EISENHOFFER, P.A.;
SIMMONS HANLY CONROY; LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP,
Interested Parties-Appellees.
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No. 24-4086
Appeal from the United States District Court for the Northern District of Ohio at Youngstown.
No. 4:23-cv-00242—Benita Y. Pearson, District Judge.
Argued: October 23, 2025
Decided and Filed: November 25, 2025
Before: THAPAR, READLER, and HERMANDORFER, Circuit Judges.
_________________
COUNSEL
ARGUED: Aaron M. Herzig, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for
Appellant. Paul D. Clement, CLEMENT & MURPHY, PLLC, Alexandria, Virginia, for
Appellees. ON BRIEF: Aaron M. Herzig, TAFT STETTINIUS & HOLLISTER LLP,
Cincinnati, Ohio, David C. Roper, TAFT STETTINIUS & HOLLISTER LLP, Columbus, Ohio,
for Appellant. Paul D. Clement, Matthew D. Rowen, Kyle R. Eiswald, CLEMENT &
MURPHY, PLLC, Alexandria, Virginia, for Appellees.
READLER, J., delivered the opinion of the court in which THAPAR and
HERMANDORFER, JJ., concurred. THAPAR, J. (pp. 17–23), delivered a separate concurring
opinion.
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_________________
OPINION
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READLER, Circuit Judge. The derailment of 38 cars in a Norfolk Southern freight train
in early 2023 upended the quiet Columbiana County (Ohio) community of East Palestine. With
the train carrying hundreds of thousands of gallons of hazardous materials, the derailment stoked
fires that billowed for days. Those combustions were followed by additional “controlled
releases” that resulted in a “toxic mushroom cloud” of chemicals. Am. Master Complaint, R.
138, PageID 1804, 1805–06. To some observers, the incident “looked like something out of
Chernobyl.” See Salena Zito, ‘We Don’t Know What We Are Breathing’: A Report from East
Palestine, The Free Press (Feb. 23, 2023), https://perma.cc/T4J5-CCBW. Thousands were
evacuated from the area, with fears growing over potential health, environmental, and economic
fallout from the accident.
Within days of the accident, lawsuits ensued against Norfolk Southern. The cases, filed
on behalf of numerous affected individuals and businesses, were eventually consolidated into
one master class action. In the end, a $600 million settlement was forged between the parties,
which the district court ultimately approved. See In re E. Pal. Train Derailment, --- F. 4th ---,
Nos. 24-3852, 24-3880, 25-3342, 2025 WL 3089606, at *1 (6th Cir. Nov. 5, 2025).
Today’s case, however, does not directly concern the victims of the derailment or the
settlement they achieved. Instead, it involves the lawyers who sued Norfolk Southern. The
dispute here involves a late-breaking fight over the timing and allocation of attorney’s fees.
Weeks after the district court gave final approval of the settlement and fees, Morgan &
Morgan—a law firm that represented a group of individuals and entities who had filed
standalone cases against Norfolk Southern—challenged the distribution of attorney’s fees.
Despite having been awarded nearly $8 million in attorney’s fees (and receiving those fees at an
expedited pace), Morgan & Morgan took issue with the process for awarding those fees. In the
end, the district court refused to undo its earlier decisions. We largely agree. Save for a narrow
issue as to Morgan & Morgan’s specific allocation of the total fee award, which we remand for
consideration by the district court, we affirm.

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I.
In the aftermath of the derailment of a Norfolk Southern train in East Palestine, a number
of class action and individual complaints were filed against the railroad and related entities.
Among the claimants were residents, property owners, employees, and businesses affected by the
accident. After seeking the parties’ input on whether to proceed as a single class action, the
district court consolidated the related cases under Federal Rule of Civil Procedure 42 and
authorized the filing of a master consolidated class action complaint joining the claims from
those cases. In that same order, the district court also addressed the leadership structure for the
plaintiffs’ attorneys. It appointed three attorneys as interim class counsel to act on behalf of the
putative class prior to certification. The court further designated those three attorneys, together
with T. Michael Morgan of Morgan & Morgan, P.A., as co-lead counsel, a court-created
management role responsible for coordinating both the class and individual actions. (Unless
otherwise noted, we will refer to Morgan and his firm collectively as “Morgan & Morgan.”).
Next, the court approved certain guidelines proposed by co-lead counsel for tracking attorney
“time and effort[]” expended for the class during the litigation. R. 33, PageID 788.
From there, litigation began apace. Co-lead counsel filed a master class action complaint
in May 2023, which was followed by early motions practice and the start of discovery. As the
discovery process unfolded, attorneys for the plaintiffs (including Morgan & Morgan) and
Norfolk Southern began to negotiate a potential settlement, aided by a series of mediation
sessions before a former federal judge. Months of engagement resulted in the execution of a
settlement agreement in April 2024.
The agreement required Norfolk Southern to establish a $600 million settlement fund in
exchange for the release of all past, present, or future claims or causes of action arising from the
train derailment by all persons and businesses within a defined settlement class. The “sole”
exception to that release was for personal-injury claims, which class members could voluntarily
elect to release for an additional payment. R. 452-2, PageID 6012. The settlement fund would
then be allocated to the settlement class, save for any administrative expenses, attorney’s fees
and costs, and service awards for the class representatives. The agreement reflected that a
settlement administrator would distribute the bulk of the settlement funds to claimants once all

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appeals as to class certification and the settlement agreement were resolved. As to attorney’s
fees and costs, the settlement contemplated a different course: Class counsel would petition the
court for a fee award, and any approved fee award would be paid under a so-called “quick pay
provision”—a mechanism that allows plaintiffs’ counsel to be paid soon after district court
approval of the settlement (here, 14 days) even while the settlement is still subject to appeal. At
the same time, the agreement recognized that if the settlement was terminated by the parties or
otherwise altered in any material respect on appeal, the attorneys would be required to return any
fees and costs (plus interest) to Norfolk Southern within 14 days. Should any dispute arise out of
the settlement—including any dispute over attorney’s fees and costs “amongst counsel”—the
settlement understood the district court to retain jurisdiction to resolve the dispute.
At least initially, resolution of the attorney’s fees allocation was uneventful. All four co-
lead counsel, including Morgan & Morgan, signed the settlement agreement. The district court
thereafter preliminarily approved the settlement and appointed the three co-lead counsel
representing the proposed class as class counsel for the settlement class. The court also set July
1, 2024, as the deadline to lodge any objections to the settlement. That day came and passed
with no objections by any of plaintiffs’ counsel (including Morgan & Morgan). In early
September, co-lead class counsel and Morgan & Morgan jointly moved the district court to grant
final approval of the proposed settlement and award attorney’s fees equaling 27% of the total
recovery. In an affidavit attached to one of the motions, T. Michael Morgan attested to his
“full[] support” for the settlement and the application for attorney’s fees, and maintained that the
settlement was “fair, adequate, and reasonable.” R. 518-9, PageID 11184. In response to an
objection to how the attorney’s fees would be distributed, all four co-lead counsel proposed
language that, in line with other settlements, authorized co-lead class counsel (in other words, all
co-lead counsel save for Morgan & Morgan) to “distribute the fees in a manner that, in the
judgment of Co-Lead Class Counsel, fairly compensates each firm for its contribution to the
prosecution of Plaintiffs’ claims.” R. 538, PageID 12344–45, 48–49; R. 538-5, PageID 12399–
400.
With this framework in place, the district court turned to examining the settlement and
the requests for fees. It began by holding a fairness hearing. With T. Michael Morgan in

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attendance, co-lead class counsel argued in favor of the attorney’s fee application. In addressing
objections concerning the allocation of attorney’s fees, co-lead class counsel asked the district
court to follow the “well-established principle that . . . appointed class counsel[] are best suited
to apportion fees to those firms who perform work that benefited the class.” R. 553, PageID
14523. The district court did so. In orders issued on September 27, 2024, the court gave final
approval to the settlement and, separately, approved the fees application, including the proposed
language in the approval order regarding co-lead class counsel’s authority to allocate fees among
plaintiffs’ counsel. The order approving the settlement explained that the court would retain
jurisdiction to “resolv[e] issues relating to or ancillary to” the settlement, including “ensuring
compliance” with the settlement and any connected court orders. R. 557, PageID 14586.
In line with the settlement’s quick pay provision, co-lead class counsel began allocating
fees among the 39 plaintiffs’ firms. Allocations were finalized by the end of the first week of
October, and distributions largely followed thereafter. Class counsel assessed Morgan &
Morgan’s share of the fees at $7,723,709.87.
Following this long, unbroken chain of agreement, an unexpected disagreement arose.
Four weeks after the district court gave final approval to the settlement and the fee application,
Morgan & Morgan asked the court to reconsider some of its earlier rulings. Specifically, the
firm moved to “enjoin the distribution of attorney fees pending the resolution of appeals, and to
amend the fee [o]rder . . . and appoint Co-Lead Counsel T. Michael Morgan to participate in the
allocation process.” R. 664, PageID 46330. Morgan & Morgan’s motion challenged the
settlement’s previously approved quick pay provision as well as the authority of co-lead class
counsel to make allocation determinations among the firms. The firm also suggested that there
may be issues with its individual fee award, maintaining that the allocation process lacked
transparency, leaving it “unclear whether all approved hours have been compensated in the
allocation process.” R. 664-1, PageID 46343. Morgan & Morgan’s filing prompted the district
court to hold a telephonic conference, where Morgan & Morgan raised additional concerns about
its distribution amount. For support, the law firm, working from the total number of hours that
class counsel had provided, posited that there was a “$20 million deficit” from what the total
“lodestar hours” submitted by all 39 firms “would be paid out at.” R. 986, PageID 68879–80. A

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few weeks later, the district court issued an order denying Morgan & Morgan’s motion. Morgan
& Morgan’s timely appeal followed. In the meantime, we have resolved the remaining objector
appeals challenging the underlying settlement and fee award, leaving only Morgan & Morgan’s
appeal pending before us. See In re E. Pal. Train Derailment, 2025 WL 3089606, at *1, 3.
II.
Morgan & Morgan contends that the district court erred in three respects: by approving
the settlement’s quick pay provision, authorizing co-lead class counsel to oversee the allocation
of attorney’s fees among the plaintiffs’ firms, and failing to scrutinize co-lead class counsel’s
underlying calculations, which purportedly undervalued Morgan & Morgan’s contribution to the
litigation.
A. We begin where Morgan & Morgan does, taking up first its challenge to the quick
pay provision. Before we can consider the merits of Morgan & Morgan’s argument, however,
we must assure ourselves that Morgan & Morgan has demonstrated its standing to press the
argument. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). Article III of the
Constitution limits federal courts to decide “Cases” or “Controversies,” U.S. CONST. art. III, § 2,
a phrase well understood to require that the party invoking the power of a federal court have a
“personal stake” in the case, TransUnion LLC, 141 S. Ct. at 2203; Hollingsworth v. Perry, 570
U.S. 693, 707 (2013). Typically, the standing inquiry is focused on the plaintiff and the relief
that party seeks. Here, of course, Morgan & Morgan was not the party that commenced the
litigation. But it bears remembering that standing must also be “met by persons seeking
appellate review,” here Morgan & Morgan, “just as it must be met by persons appearing in courts
of first instance.” Hollingsworth, 570 U.S. at 705 (quoting Arizonans for Off. Eng. v. Arizona,
520 U.S. 43, 64 (1997)). In practice, that means Morgan & Morgan must show that the
settlement’s quick pay provision has caused the firm to suffer a “concrete, particularized, and
actual or imminent” injury that is fairly traceable to the challenged conduct and likely to be
redressed by a favorable ruling on appeal. TransUnion LLC, 141 S. Ct. at 2203; Hollingsworth,
570 U.S. at 704.

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To our minds, Morgan & Morgan lacks standing to pursue its challenge to the quick pay
provision. Influential in that conclusion is the counterintuitive nature of Morgan & Morgan’s
purported harm tied to the timing of the attorney’s fees payment: The firm claims an injury from
receiving its fees “right away” via the quick pay provision, as opposed to having to wait a year or
more to receive what it is owed. Appellant Br. 23. Morgan & Morgan’s asserted injury—tied to
the timing of when its fees are paid—runs counter to a basic principle of finance, namely, that a
dollar today is worth more than a dollar tomorrow. See generally Irving Fisher, The Theory of
Interest (1930). If anything, Morgan & Morgan is “better off” with the quick pay provision than
without it, which undermines its claim that it has a concrete, actual injury justifying its standing.
See In re Flint Water Cases, 63 F.4th 486, 505 (6th Cir. 2023) (emphasis omitted) (objectors
who are better off under the terms of the settlement than without it lack standing to challenge the
settlement).
Cementing our conclusion is the fact any harm the firm suffered was a result of its own
doing. Recall that Morgan & Morgan helped negotiate the settlement with the quick pay
provision, later signed the agreement memorializing that settlement, and then separately attested
to its “full[] support” for the settlement and fee award. R. 518-9, PageID 11184. In other words,
if Morgan & Morgan was injured by the inclusion of a quick pay provision in the settlement
agreement, it has only itself to blame for procuring that result. With any injury here self-
inflicted, Morgan & Morgan’s alleged harms are “not traceable to anyone but the” party seeking
judicial relief. Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 866 (6th Cir. 2020).
Morgan & Morgan’s rejoinders run up against decades of Article III standing
jurisprudence. The firm first maintains that the quick pay feature “jeopardize[s] their clients’
ability to recover money.” Appellant Br. 23. At the outset, it is not entirely clear why this
provision puts at risk the class’s recovery, with no other objections to the settlement remaining
before this Court and with Morgan & Morgan agreeing that any objections other than its own
would be meritless. See In re E. Pal. Train Derailment, 2025 WL 3089606, at *1, 3; see also
Appellant Br. 23 (Morgan & Morgan conceding the “settlement and cumulative fee award are
fair”). But even accepting the firm’s assertion, it is not enough for Morgan & Morgan to
demonstrate its standing to pursue this appeal. The firm, remember, must show an injury that is

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personal to it—not third parties like its clients. See FDA v. All. for Hippocratic Med., 144 S. Ct.
1540, 1563 n.5 (2024) (observing that parties lacking any injury cannot “shoehorn themselves
into Article III standing simply by showing that [the third parties they represent] have suffered
injuries or may suffer future injuries”); see also Hollingsworth, 570 U.S. at 708.
Morgan & Morgan has not done so. Take, for instance, the firm’s contention that class
counsel misallocated fees, depriving Morgan & Morgan of their claimed full allotment.
Intuitively, at least, that would appear to be an injury the firm has standing to pursue. See Weeks
v. Indep. Sch. Dist. No. I-89, 230 F.3d 1201, 1207 (10th Cir. 2000) (“Counsel have standing to
appeal orders that directly aggrieve them”); In re Volkswagen “Clean Diesel” Mktg., Sales
Pracs., & Prods. Liab. Litig., 914 F.3d 623, 640 (9th Cir. 2019) (“deprivation of attorneys’ fees”
amounts to an injury in fact). Yet it is unclear how that injury affords the firm standing to
challenge the quick pay provision, which arguably benefits Morgan & Morgan, and which the
firm embraced over a long stretch of the settlement litigation. Morgan & Morgan must
demonstrate standing for “each claim [it] seeks to press,” DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 352 (2006), and may not bootstrap a remedy (here, delaying when fees are distributed)
that fails to relieve the injury complained of (here, insufficient compensation), Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 107 (1998).
Equally unavailing is Morgan & Morgan’s assertion that delaying fee allocations until
after all appeals in the litigation are exhausted would avoid “hypothetical[]” harms, Reply Br. 15,
like the firm having to repay monies it was awarded in fees or the firm losing out on fees that it
was owed but paid to another firm. These “conjectural or hypothetical” injuries are insufficient
to establish an injury-in-fact, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation
modified), especially as they are based on a “chain of contingencies,” see Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 410 (2013). That conclusion is especially apt here. After all, with no
other firm challenging the allocation decision and the objector appeals now resolved, the
uncertainties Morgan & Morgan highlights are all but ruled out. See In re E. Pal. Train
Derailment, 2025 WL 3089606, at *1, 3; see also Clapper, 568 U.S. at 401 (requiring that any
risk of future injury be “certainly impending”). And the distributions to other plaintiffs’ counsel
have already occurred. So even if the hypothetical harms that flow from unwinding the

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distributions count as an injury-in-fact, those injuries are now inevitable no matter how we rule.
That reality raises separate Article III mootness concerns. See Uzuegbunam v. Preczewski, 141
S. Ct. 792, 796 (2021) (“[I]f in the course of litigation a court finds that it can no longer provide
a plaintiff with any effectual relief, the case generally is moot”).
All told, Morgan & Morgan lacks standing to challenge the quick pay provision, leaving
us without jurisdiction to reach the claim’s merits.
B. Shifting from the settlement agreement, Morgan & Morgan next focuses on the fee
award order. Specifically, the firm challenges the denial of its reconsideration motion filed
under Federal Rules of Civil Procedure 59(e), 60(b)(1), and 60(b)(6), which sought to undo co-
lead class counsel’s authority to allocate fees among the various plaintiffs’ attorneys. We review
the district court’s denial of Morgan & Morgan’s reconsideration motion for an abuse of
discretion, which means that the firm, to be deserving of relief, must leave us with a “definite
and firm conviction that the district court committed a clear error in judgment.” U.S. ex rel.
Angelo v. Allstate Ins. Co., 106 F.4th 441, 453 (6th Cir. 2024) (citation modified) (reviewing
motions under Rule 59(e) and Rule 60(b)(1)).
We see no obvious error in the district court’s refusal to amend its order and judgment on
fee allocation. The Federal Rules of Civil Procedure authorize at least two vehicles for seeking
what, in effect, amounts to reconsideration of a court’s final judgment. See Fed. R. Civ. P. 59(e)
(motion to alter or amend a judgment); see also Fed. R. Civ. P. 60(b); Banister v. Davis, 140 S.
Ct. 1698, 1710 n.9 (2020) (recognizing that Rule 60(b) motions filed within 28 days of final
judgment are commonly treated as Rule 59(e) motions). In either case, a reconsideration motion,
given its post-decision posture, is typically not a vehicle to present new arguments that could
have been raised prior to the court’s dispositive decision. See Roger Miller Music, Inc. v.
Sony/ATV Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (Rule 59(e)); Jinks v. AlliedSignal,
Inc., 250 F.3d 381, 385 (6th Cir. 2001) (Rule 60(b)).
Yet that aptly describes Morgan & Morgan’s approach in district court. Recall the
underlying sequence of events. The request to provide co-lead class counsel with fee allocation
authority first surfaced in a brief and proposed order submitted on September 23, 2024, by

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plaintiffs’ counsel, including T. Michael Morgan. The filing was publicly available, and it was
likewise sent to more than half a dozen Morgan & Morgan associated email addresses, including
the one assigned to T. Michael Morgan. Morgan & Morgan, however, never objected to the
proposed language. Two days later, T. Michael Morgan attended the fairness hearing, where co-
lead class counsel argued for empowering class counsel to apportion fees to the plaintiffs’ firms.
Rather than objecting to the proposal, Morgan stayed quiet. Indeed, Morgan’s lone injection into
the hearing was to wave at the district court to note his presence. R. 553, PageID 14429 (“THE
COURT: Mr. Morgan, will you gesture? MR. MORGAN: (Indicating.).”) In other words, the
firm was given ample access to the proposal in advance of the fairness hearing and had a front
row seat to the discussion over the proposal. Yet it was not until four weeks after the district
court’s approval of the proposal that Morgan & Morgan raised an objection. Taking all of these
developments into consideration, it is fair to view Morgan & Morgan as having endorsed the
purportedly offending fee allocation provision, only to reverse course weeks later. Under these
circumstances, the district court appropriately exercised its judgment in rejecting the firm’s
belated objection. See Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 616 (6th
Cir. 2010).
Doubly so when one considers the merits of the firm’s position. While it is undoubtedly
the case that, as Morgan & Morgan emphasizes, “courts must carefully scrutinize” how
settlements fees are “allocated between the class representatives, class counsel, and unnamed
class members,” In re Dry Max Pampers Litig., 724 F.3d 713, 717–18 (6th Cir. 2013), the
district court nonetheless retains significant discretion in how it exercises that oversight, see
Gascho v. Glob. Fitness Holdings, LLC, 822 F.3d 269, 286 (6th Cir. 2016). One well-accepted
approach is to initially allow lead counsel to apportion fees among the plaintiffs’ various
representatives, while the district court retains jurisdiction to scrutinize apportionment decisions
and adjudicate disputes if and when they arise. See 5 William Rubenstein, Newberg and
Rubenstein on Class Actions § 15:23 (6th ed. Supp. 2025). This approach presumes that firms
that organized or led the negotiations are best situated to assess the relative contributions of each
lawyer and firm to the overall settlement. See id; Edward K. Cheng, Paul H. Edelman & Brian
T. Fitzpatrick, Distributing Attorney Fees in Multidistrict Litigation, 13 J. Legal Analysis 558,
560 (2021) (noting dearth of research on the topic of allocation of fees “amongst the group” of

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attorneys, but noting that the “lead lawyer often divides the fees”); see also In re Vitamins
Antitrust Litig., 398 F. Supp. 2d 209, 224 (D.D.C. 2005) (collecting cases); In re Prudential Ins.
Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283, 329 n.96 (3d Cir. 1998); In re Warfarin
Sodium Antitrust Litig., 391 F.3d 516, 533 n.15 (3d Cir. 2004); In re Life Time Fitness, Inc., 847
F.3d 619, 623–24 (8th Cir. 2017).
True, other options were available to the district court, from refusing to delegate any
allocation authority to appointing a special master or an external auditor to oversee the process.
See, e.g., Fed. R. Civ. P. 23(h)(4); In re Genetically Modified Rice Litig., 764 F.3d 864, 872 (8th
Cir. 2014). But that the district court opted here for the tried and true “trust but verify”
approach, see President Ronald Reagan, Farewell Address to the Nation (Jan. 11, 1989),
https://perma.cc/ZCS7-3HBS, allowing counsel to take the first crack at a fee allocation subject
to court review later on, does not by itself reflect an abuse of discretion, see In re Genetically
Modified Rice Litig., 764 F.3d at 872. That is especially true when Morgan & Morgan does not
contend that the attorney’s fees allocation here affected the class’s distribution, no remaining
objections to the settlement are pending before us, and none of the other plaintiffs’ firms have
objected to the allocation decisions. See In re Dry Max Pampers Litig., 724 F.3d at 718 (holding
lack of deference in allocation decisions is warranted to protect the class); In re Life Time
Fitness, Inc., 847 F.3d at 623–24 (recognizing that the lack of a dispute among class counsel
over how to allocate the award of attorney’s fees and expenses suggests no abuse of discretion in
delegating allocation authority).
Morgan & Morgan’s responses are unavailing. The firm begins with an ethical concern,
namely, that T. Michael Morgan’s signature was attached to the September 23, 2024, reply brief
and proposed order without his knowledge or permission. That is a serious accusation. But its
veracity is far from certain. The district court expressed skepticism. And the record, in this
posture, does not allow us to credit Morgan & Morgan’s claims and second guess the district
court. See Oral Argument Tr. at 24:03–25:10 (discussing the circumstances of the filing). What
we do know is that the September 23 filing was publicly available, emailed to Morgan at the time
of the filing, and discussed at the fairness hearing (with Morgan in attendance) days later. All of

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this leaves it hard to understand why a sophisticated entity like Morgan & Morgan would wait
weeks to object to a fraudulent signature.
Next, Morgan & Morgan contends that the district court failed to sufficiently explain the
reasoning behind its delegation decision. But the record belies that assertion. The district court
twice explained—both in its approval of the fee application and in the reconsideration order—
that it empowered co-lead class counsel to make the initial allocation decisions due to their
familiarity with the work of each firm in the litigation. That explanation could have been more
robust. But all things considered, there was no need for the district court to author a dissertation
“where the basis for [its] decision is obvious in light of the record.” See Mich. State AFL-CIO v.
Miller, 103 F.3d 1240, 1248 (6th Cir. 1997).
Morgan & Morgan also maintains that Rule 23 prohibits a district court from
“abdicat[ing] its allocation discretion to class counsel.” Appellant Br. 32. Perhaps so. But we
cannot accept the premise of the law firm’s argument. The district court did not wash its hands
of the allocation decision. Instead, the court retained jurisdiction to “resolv[e] issues relating to
or ancillary to” the settlement, including any connected orders of the court, such as the fee
award. R. 557, PageID 14586. That approach—letting lead counsel initially allocate fees while
“retain[ing] the ultimate power to review” any challenges to those allocations—is “neither
unusual nor inappropriate” in the Rule 23 setting. Victor v. Argent Classic Convertible Arbitrage
Fund L.P., 623 F.3d 82, 90 (2d Cir. 2010). And it bears repeating that, outside of this dispute, no
challenges arose among the various plaintiffs’ firms as to the co-lead class counsel’s allocation’s
decisions. That fact makes this case distinguishable from In re High Sulfur Content Gasoline
Prods. Liab. Litig., 517 F.3d 220 (5th Cir. 2008), where a district court, having determined a fee
allocation in an ex parte hearing with lead counsel, later cursorily reviewed the many objections
tied to the eventual allocation. Id. at 223–25.
Finally, Morgan & Morgan claims that at the very least it was an abuse of discretion to
not allow the firm a role in making the fee allocations. But that decision was easy to rationalize.
Remember, Morgan & Morgan’s role in the litigation was not to represent the class, but rather to
assist those who opted to file outside of the class structure. So it does not strike us as
unreasonable, let alone a “clear error in judgment,” to not task an attorney whose work was

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adjacent to the core of the case with a central role in allocating attorney’s fees. See Angelo, 106
F.4th at 453 (citation modified).
C. That leaves Morgan & Morgan’s final argument, which starts where the last one left
off. Recognizing that the district court opted for the trust and verify approach to fee allocation,
the law firm maintains that the court failed to “verify” co-lead class counsel’s decision making
by insufficiently scrutinizing the allocation to Morgan & Morgan. We review Morgan &
Morgan’s challenge to its individual allocation for an abuse of discretion. In re Dry Max
Pampers Litig., 724 F.3d at 717.
Critical to our resolution of this issue is the manner in which it traversed the district
court. Start with Morgan & Morgan’s presentation of the issue, which was less than ideal. Its
motion and attached briefing sought to enjoin the distribution of attorney’s fees pending the
resolution of appeals, and to amend the fee order both to include “a process for judicial review of
the fee allocation” and to appoint T. Michael Morgan to “participate in the allocation process.”
R. 664, PageID 46330. Those arguments fairly captured the first two issues on appeal—the
challenges to the quick pay provision and the delegation of allocation authority. But they do not
speak to the topic of Morgan & Morgan’s fee allocation, the issue it presses here. That issue was
raised only later, during the telephonic hearing on Morgan & Morgan’s motion.
There, the firm shifted gears. At the district court’s invitation, Morgan & Morgan
confirmed that it was “concerned” with “the amount that’s been allocated to” it. R. 986, PageID
68852. The firm began discussing “discrepancies . . . found in the allocation,” specifically, the
firm’s belief, based on the information that had been presented by co-lead class counsel, that co-
lead class counsel’s shares had been artificially inflated at the expense of other firms, including
Morgan & Morgan. R. 986, PageID 68878–80. Specifically, the law firm argued that the
allocated fees were at a “$20 million deficit” from what should have been received and that
excessive multipliers were used for each of class counsel’s work. Id. at 68880. Co-lead class
counsel responded, faulting Morgan & Morgan’s “math,” explaining that “no discrepancy”
existed based on the nature of the hours at issue, and asserting that Morgan & Morgan’s hours
“were treated the same as all other firms and the Co-Lead firms.” Id. at 68857, 68881. Co-lead
class counsel then gestured toward filing a written response to Morgan & Morgan’s claims. But

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the district court rejected the offer, assuring the parties it would “think about what [it] heard and
consider” next steps. Id. at 68884–85. Two and a half weeks later, the district court denied
Morgan & Morgan’s reconsideration motion.
On this record, was the argument forfeited in district court, as co-lead class counsel
suggest? Had a party taken the same approach before us that Morgan & Morgan did in district
court—raising a new argument for the first time at oral argument—we would be quite unlikely to
entertain its merits. See Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc)
(recognizing that an argument “raised for the first time” at oral argument is usually forfeited).
That said, we do not provide similar treatment to an issue raised “for the first time at a district
court hearing.” United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009).
District court motions practice, as exemplified by the treatment of Morgan & Morgan’s motion,
commonly does not follow a “rigid three-stage briefing schedule.” Id. In view of the fluid
nature of those lively dockets, it is not uncommon for arguments to be raised for the first time in
court, rather than on paper. Id. Appreciating these differences, “litigants may preserve an
argument in the district court by raising it for the first time at a hearing, even when they
neglected to make the argument in a pre-hearing filing.” Id. (citation modified) (collecting
cases); see also Stryker Emp. Co. v. Abbas, 60 F.4th 372, 383–84 (6th Cir. 2023); Bard v. Brown
County, 970 F.3d 738, 749 (6th Cir. 2020). On appeal, we assess forfeiture by considering
whether the litigant “state[d] the issue with sufficient clarity to give the [district] court and
opposing parties notice that it is asserting the issue.” See Huntington Nat’l Bank, 574 F.3d at
332.
Applying that relatively low bar, Morgan & Morgan preserved its fees distribution-based
challenge in district court. During the telephonic hearing, the firm “identified” its contention that
the attorney’s fees had been misallocated and “presented arguments to support [its] theory” by
pointing to supposed problems with the math underlying the distributions. See Stryker Emp. Co.,
60 F.4th at 384. The parties and the court, in turn, were aware of Morgan & Morgan’s issue with
its fee allocation. Co-lead class counsel responded to it directly, and the district court
acknowledged that Morgan & Morgan had put forth “a general idea of the discrepancies [it]
believe[s] exist in the alloc[a]tion,” R. 986, PageID 68881, at which point the district court then

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instructed the parties that there would be “no more filings” on the issue, id. at 68885. As
explained next, one could fairly fault the district court for not requiring Morgan & Morgan to
present its argument more formally, such as through subsequent briefing. But as to the question
of preservation, under these circumstances we think Morgan & Morgan’s allocation argument
was fairly presented.
Turn then to the merits of the allocation argument. The parties debate at length whether
the distribution process adversely affected Morgan & Morgan. The firm portrays the district
court as having tacitly accepted co-lead class counsel’s explanation of how allocations were
made, while ignoring Morgan & Morgan’s assertion that the firm played a critical role in the
litigation that was not reflected in the fee allocation. Co-lead class counsel counters that the fee
allocation was based on objective measures stemming from the guidelines the district court
approved in the early days of litigation, when a settlement was little more than a gleam in the
eye. Co-lead class counsel also highlights Morgan & Morgan’s comparatively minimal role in
the litigation, which, to co-lead class counsel’s minds, sensibly resulted in a lower share of the
fees. Co-lead class counsel further notes that the particulars of distributions among counsel
become irrelevant once there is no dispute as to their collective worth, see Appellee’s Br. at 35–
36 (citing Bowling v. Pfizer, Inc., 102 F.3d 777, 781 (6th Cir. 1996)), as may well be the case
now that we have resolved the objector appeals, see In re E. Pal. Train Derailment, 2025 WL
3089606, at *1, 3.
Unfortunately, the district court never engaged with these arguments. Its order resolving
allocation and distribution issues discussed only those issues that Morgan & Morgan briefed.
Despite suggesting to the parties that it would consider all of the arguments presented during the
telephonic hearing, the district court did not do so. While it is not at all clear that Morgan &
Morgan’s assertions are meritorious, the district court’s failure to address them amounts to an
abuse of discretion. See Garner v. Cuyahoga Cnty. Juv. Ct., 554 F.3d 624, 643 (6th Cir. 2009)
(recognizing an abuse of discretion “where a district court fails to . . . consider the competing
arguments of the parties” (citation modified)). We likewise decline to resolve the parties’
competing arguments for the first time on appeal. See Energy Mich., Inc. v. Mich. Pub. Serv.
Comm’n, 126 F.4th 476, 501 (6th Cir. 2025) (“[W]e are a court of review, not first view”

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(citation modified)). Hewing to that traditional practice is all the more warranted here due to the
district court’s comparative expertise in scrutinizing the underlying fee arrangement. See In re
Sw. Airlines Voucher Litig., 898 F.3d 740, 743 (7th Cir. 2018) (acknowledging that district
courts are “far better suited than appellate courts to assess” attorney’s fee awards in class actions
(citation modified)). Indeed, an explanation from the district court on the topic is a prerequisite
to “facilitate appellate review of a fee award.” U.S. Structures, Inc. v. J.P. Structures, Inc., 130
F.3d 1185, 1193 (6th Cir. 1997). The absence of one here thus “requires us to remand the case
for further consideration” of Morgan & Morgan’s final argument. Id.
III.
The judgment of the district court is affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion.

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_________________
CONCURRENCE
_________________
THAPAR, Circuit Judge, concurring. On the evening of February 3, 2023, residents in
East Palestine, Ohio, were winding down for the day. Just before 9:00 p.m., a loud boom
reverberated across the town. A Norfolk Southern train carrying over 1.6 million pounds of
hazardous chemicals had derailed. The derailment kicked off a series of fires that lasted for
several days and ultimately required a controlled explosion that exposed over half a million
residents in East Palestine and nearby towns to toxic fumes and environmental hazards. The
derailment also kicked off a series of lawsuits that resulted in Norfolk Southern agreeing to pay
$600 million to compensate residents for their medical bills, relocation expenses, and business
losses.
That settlement was approved in September 2024. Over a year later, many of these
residents haven’t yet seen a penny. Take Tracy Hagar. She’s been trying to escape East
Palestine with her husband and two young sons. But she doesn’t have the money to move, and
compensation for relocation expenses is on hold until all appeals have been resolved. Until then,
Tracy and her family are forced to remain in their home where they occasionally still smell
chemicals from the derailment. She recounted, “I just can’t get away from it.” Jordan Anderson,
For East Palestine Residents, an Uneven Road to Recovery 2 Years After Train Derailment,
Pittsburgh Post-Gazette (Feb. 2, 2025, at 5:30 AM).
Or take Anna Doss. She operated a gas station in the center of East Palestine for 24
years, but she lost half of her business after the derailment. Her settlement check is also held up
by the appeals in this case, so she had to sell the gas station. In her words, “The financial impact
was devastating to me, and I ran out of money.” Gerry Ricciutti, Payment Wait Tough for
People in East Palestine, WKBN (Dec. 10, 2024, at 12:43 PM).
But while the plaintiffs waited, the lawyers were paid in full. That’s because the
settlement award included a quick-pay provision. This provision guaranteed the lawyers would

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get paid $162 million in attorneys’ fees and $18 million in expenses within 14 days of the
settlement’s approval.
Although quick-pay provisions are a common component of class-action settlements, I
write separately to express some concerns. These provisions—which allow attorneys to get paid
while injured plaintiffs wait—improperly align incentives between counsel and their clients,
create an appearance of unfairness that reflects poorly on the legal system, and enable
gamesmanship by class counsel. These concerns were compounded here because the district
court failed to meaningfully supervise the allocation of attorneys’ fees.
That’s not to say all quick-pay provisions are bad. Some serve a valid purpose, like the
quick repayment of costs. But if a settlement includes a quick-pay provision, district courts must
ensure the agreement provides adequate safeguards and must supervise the fee allocation.
I.
Federal Rule of Civil Procedure 23 imposes two interdependent obligations on district
courts: review settlement terms about attorneys’ fees to ensure they’re reasonable and scrutinize
all elements of such a fee award. See Fed. R. Civ P. 23(e)(2), (h).
First, a district court must ensure that a class-action settlement “is fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2). In doing so, a district court must “tak[e] into account” the
“terms” and “timing” of any proposed attorneys’ fee awards. Fed. R. Civ. P. 23(e)(2)(C)(iii).
For example, an attorneys’ fee award might make a settlement unfair, unreasonable, and
inadequate if it “gives preferential treatment to class counsel” or allows class counsel to
“disregard their fiduciary responsibilities” to the class. In re Dry Max Pampers Litig., 724 F.3d
713, 718 (6th Cir. 2013) (quotation omitted). When a district court approves a settlement
containing an impermissible fee award, it violates Rule 23, and that usually constitutes a
reversible abuse of discretion. See Gascho v. Glob. Fitness Holdings, LLC, 822 F.3d 269, 279
(6th Cir. 2016).
Second, and relatedly, Rule 23(h) requires district courts to “carefully scrutin[ize]” all
elements of a fee award to “make sure that [each] counsel is fairly compensated for the amount

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of work done as well as for the results achieved.” Id. (quotation omitted); Fed. R. Civ. P. 23
advisory committee’s note to 2003 amendment. This “careful scrutiny” is not just limited to the
overall amount of the award. It also includes the allocation of fees among participating counsel.
4 W. Rubenstein, Newberg and Rubenstein on Class Actions § 15:23 (6th ed. 2025) (collecting
cases); Bowling v. Pfizer, Inc., 102 F.3d 777, 781 n.3 (6th Cir. 1996) (explaining that district
courts should consider fee-allocation agreements when approving a class settlement). In other
words, deciding what constitutes an appropriate attorneys’ fee award may entail determining who
gets those fees.
But this case presents a twist on the district court’s typical analysis of a proposed class
settlement: a quick-pay provision. Typically, quick-pay provisions don’t run afoul of Rule 23.
In fact, they’re so common that they usually are approved and upheld on appeal without
comment or controversy. Rubenstein, supra, § 13:8. As of 2006, over one-third of federal class-
action settlements included quick-pay provisions. See Brian T. Fitzpatrick, The End of Objector
Blackmail?, 62 Vand. L. Rev. 1623, 1643 (2009). And no circuit has adopted a blanket rule that
quick-pay provisions violate Rule 23.
That’s for good reason. Some type of quick-pay provision makes sense in most class-
action litigation. After all, the plaintiffs’ attorneys often front substantial costs to fight a class
action. So quick-pay provisions help them quickly recoup those costs.
But full payment of fees? That’s problematic for a few reasons. First, a speedy payday
for the attorneys misaligns the incentives between counsel and their clients. Once the attorneys
pocket all their fees, they have no financial reason to bring the litigation to a close, even if their
clients still do. Second, the prompt and full payment for the attorneys while injured plaintiffs
desperately wait for their money seems unfair. And that appearance of unfairness brings the
legal profession and the judicial system into disrepute. Third, rushing to pay the attorneys can
encourage lead counsel to collude with other firms to unfairly divide the fee award.
At least one thoughtful professor believed quick-pay provisions deterred “objector
blackmail.” See Fitzpatrick, supra, at 1624–25. But experience has shown quick-pay provisions
may not accomplish that objective. See Rubenstein, supra, § 13:8. What’s more, district courts

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can reject payouts to frivolous objectors under Rule 23(e)(5)(B). And if those objectors appeal,
courts can impose significant appeal bonds. See Fitzpatrick, supra, at 1625. So the leading
treatise has observed, “it seems a tad too convenient that the best solution anyone can devise to
address the problem of professional objections happens to be to pay class counsel immediately
while the class waits—especially when that solution hasn’t appeared to solve the problem.”
Rubenstein, supra, § 13:8.
None of this is to say that quick-pay provisions should be banned. Instead, if district
courts approve such provisions, they should encourage class-action settlements to include
safeguards that address the above concerns. For example, quick-pay provisions should allow the
lawyers to recover only their costs—or some predetermined portion of the fee award—while
keeping the rest of the award in escrow until the class gets paid. Additionally, quick-pay
provisions should be coupled with claw-back terms that require attorneys to repay any fee award
if an objection or other appeal is successful.
Likewise, district courts should require that class-action settlements with quick-pay
provisions give the district court jurisdiction to resolve disputes amongst counsel about the
allocation of fees. Such a guarantee of ongoing judicial supervision reduces the risk that counsel
will engage in self-dealing. District courts can further diminish that risk by placing third parties
like escrow agents in control of distributing funds rather than handing over the reins to lead
counsel.
What’s more, district courts should pay close attention to the timing of the attorneys’
payout. One of the primary risks of a quick-pay provision is that it shortens the clock for
attorneys to object to their allocations after the fee award is approved. So district courts should
budget time to fully resolve objections well in advance of the quick-pay provision’s effective
date. See Rubenstein, supra, § 15:23. And the less time between approval and payout, the more
scrutiny should occur at the approval phase. That’s because attorneys won’t have as fulsome of
an opportunity to object afterwards.
Above all, district courts must remain mindful that they are the only independent actor
with an incentive to get the fee allocation right. Lead counsel, of course, is inherently self-

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interested when allocating the money between firms. So district courts must be careful to never
allow lead counsel’s proposed awards to become final without subjecting them to impartial
scrutiny. In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 234–35 (5th Cir.
2008). As Judge Ambro colorfully put it, “How much deference is due the fox who recommends
how to divvy up the chickens?” In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 173 (3d Cir.
2005) (Ambro, J., concurring). Very little. When district courts blindly defer to the lawyers’
judgment, they allow the allocation process to become corrupt and unfair.
II.
While the above discussion summarizes what district courts should do in reviewing
quick-pay provisions, this case provides a cautionary tale about what district courts should not
do.
On the same day the district court approved the settlement, it awarded the 39 firms
representing the injured plaintiffs $162 million in attorneys’ fees and $18 million in costs. And
it granted Class Counsel—the three primary law firms representing the class—sole authority to
divide that award between all the law firms.
These approvals triggered a classic quick-pay provision. This term guaranteed that the
fee award would be paid into escrow “within fourteen (14) days after the grant of Final
Approval,” then “wired . . . to an account number identified by Class Counsel.” R. 452-2, Pg. ID
6028. Working on that tight schedule, Class Counsel announced that it had “finalized” the fee
allocations a mere 10 days after the district court’s final approval. R. 664-1, Pg. ID 46335. And
like clockwork, it started paying the other firms four days later. This timeline didn’t give
Morgan & Morgan or anyone else a chance to tell the district court there might be problems with
the fee allocations before the money was distributed.
Granted, some factors suggest the quick-pay provision in this settlement was reasonable.
First, the fee award was a percentage of the total settlement, so the plaintiffs’ payouts remained
the same regardless of when counsel got paid. Second, the settlement terms gave the district
court jurisdiction over any disputes, including those arising out of the fee award. And third, the
fee award included a stringent claw-back provision, which required the attorneys to repay the

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award with interest to Norfolk Southern in 14 days if the final settlement was reversed or
materially modified on appeal.
But the surrounding context paints a more concerning picture. The district court knew
that its final approval would give Class Counsel 14 days to divide $162 million in fees between
39 firms. So it should’ve realized that this tight timeline would prevent the attorneys from
negotiating the specific allocation methodology or checking Class Counsel’s work. And it
certainly should’ve anticipated that the timeline would give it no chance to hear objections, much
less independently review Class Counsel’s methodology. Put simply, the quick-pay provision
made the initial allocations effectively final, and the district court should’ve recognized that
problem.1
This rubber-stamping fell far short of the district court’s oversight responsibilities. The
district court never confirmed how Class Counsel (1) determined the hourly multipliers,
(2) decided which multiplier should apply to each firm, or (3) distinguished between types of
work. Nor did it request to see the auditor’s data to confirm the most basic element of the fee
allocation—that Class Counsel did the math right. Even now, appellees insist that Morgan &
Morgan billed the fewest hours but received the same multiplier as Class Counsel. But we can’t
confirm that’s true because we haven’t seen the audit data and multiplier rates. Without this
basic information, the district court could not possibly have verified that each firm was
reasonably, fairly, and adequately compensated for its work, as required by Rule 23(e) and (h).
In response, the appellees try to sweep the district court’s shortcomings under the rug.
They argue that “[b]y retaining jurisdiction over the Settlement and all orders related to it
(including the Attorneys’ Fee Order), the district court maintained authority over the allocation.”
Appellees’ Br. at 40. But jurisdiction isn’t the same as supervision—especially when the quick-
pay provision shortened counsel’s window to object. Class Counsel announced Morgan &
Morgan’s award only four days before the quick-pay provision allowed Class Counsel to
1The quick-pay provision requires $162 million in fees and $18 million in expenses to be paid to the
escrow account within 14 days. But it doesn’t provide a clear timeframe for Class Counsel to allocate that fee award
to the other attorneys. So the quick-pay provision may have inadvertently given Class Counsel unfettered discretion
over when the other attorneys got paid. That would’ve defeated the quick-pay provision’s purpose.

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disburse the funds. When Morgan & Morgan formally objected, the district court announced it
would entertain objections only during a time-limited telephonic conference that was closed to
the public and other law firms. And when new issues emerged at that hearing, the district court
rejected the parties’ offer to submit detailed written briefing about the awards. In short, the
district court retained jurisdiction but did nothing to ensure that it properly supervised the fee
allocations.
Bottom line, the district court granted sole discretion to Class Counsel to allocate fees
within two weeks of the final settlement without seeing its methodology, checking its math, or
laying eyes on its proposed awards. So even today, we aren’t sure who got what, when, and
why. District courts should never take such a backseat approach to reviewing attorneys’ fee
awards.
* * *
District courts must closely supervise attorneys’ fee awards to ensure that plaintiffs’
lawyers are fairly and reasonably compensated for their contributions to major class-action
settlements. This supervision must ensure that plaintiffs like Tracy Hagar and Anna Doss aren’t
left waiting for their settlement checks, while the lawyers receive their full payday. Victims
deserve better.
With these additional observations about what district courts should and shouldn’t do to
approve attorneys’ fee awards, I concur in the majority’s thoughtful opinion.

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