United States Court of Appeals, District of Columbia Circuit
Mary E. Collins, Individually and on behalf of all others similarly situated, et al., Appellants
Pension Benefit Guaranty Corporation and M & M Transportation Company Pension Plan, Appellees
December 4, 2017
from the United States District Court for the District of
Columbia (No. 1:88-cv-03406) (No. 1:89-cv-02997)
R. Ates argued the cause for the appellants. Allison C.
Pienta was with him on brief. Stephen R. Bruce and Ann Curry
Thompson entered an appearance.
Hagan, Deputy Assistant General Counsel, Pension Benefit
Guaranty Corporation, argued the cause for the appellee.
Judith R. Starr, General Counsel, Israel Goldowtiz, Deputy
General Counsel, Paula Connelly, Assistant General Counsel,
Anna Lofton, Attorney, Charles G. Cole, Gwendolyn
Prothro-Renigar and Molly B. Fox were with her on brief.
Joseph J. Shelton, Assistant General Counsel, Pension Benefit
Guaranty Corporation, entered an appearance.
Before: Henderson and Rogers, Circuit Judges, and Sentelle,
Senior Circuit Judge.
LeCraft Henderson, Circuit Judge
issue in this appeal is whether defendant Pension Benefit
Guaranty Corporation (PBGC) must pay attorneys' fees
beyond an agreed ten-year period for wrapping up a
class-action settlement. Counsel for named plaintiffs Mary
Collins and Estella Page and the plaintiff class assert that
the PBGC violated the wrap-up agreement by doing too little
to identify and make payments to class members. The district
court denied counsel's motion to compel payment of fees
that they say should have been but were not paid as a result
of the PBGC's alleged footdragging. Because we conclude
the ten-year period for payment of attorneys' fees is
unambiguous and has expired, we affirm.
underlying class action in this case sought payments for
pension beneficiaries whose federally guaranteed pension
plans had collapsed in the years immediately following
creation of the PBGC. The PBGC reached a settlement with the
class whereby a class action settlement board (CASB) was
created and a private search firm retained to locate and make
payments to class members. The plan succeeded beyond
anyone's expectations, yielding over $1 billion in
settlement payments-more than ten times the parties'
estimate at the time of the settlement. Class counsel, as a
participant in the CASB, helped administer the settlement and
worked on its own and with the private search firm to
identify class members. In exchange, and as compensation for
its work preceding the creation of the CASB, the settlement
agreement entitled class counsel to eight per cent of every
settlement payment, netting class counsel more than $85
the parties negotiated a "wrap-up agreement" to
shut down the CASB and transfer its remaining
responsibilities to the PBGC, which that year began an
in-house pension search operation. See Joint
Appendix (JA) 194-204 (wrap-up agreement). Under the wrap-up
agreement, the PBGC was to continue paying attorneys'
fees of eight per cent on every settlement payment "for
a ten-year period" beginning with the transfer of
payment liability to the PBGC pension search program
"after August 31, 2002." JA 201. The parties'
infighting prevented the timely effectuation of the wrap-up
agreement and the CASB continued in operation for several
years after the PBGC had taken over the settlement payments.
According to class counsel, the PBGC was preventing the full
payment of settlement benefits during this time and therefore
failed to pay class counsel their due. The PBGC says it was
doing everything the wrap-up agreement required and at all
events continued paying class counsel an eight per cent cut
of all settlement payments. Ten years after the wrap-up
agreement took effect, the PBGC stopped making payments to
PBGC read it, the wrap-up agreement required that the fee
payments cease. The agreement provides for payment of
attorneys' fees "for a ten-year period"
"after August 31, 2002, " after which period
"PBGC shall have no further liability to class counsel
in this case." Class counsel went to court seeking
continuation of the payments, arguing that the running of the
ten-year period was subject to the PBGC's fully
performing its end of the bargain, which in class
counsel's view the PBGC did not do. On October 3, 2016
the district court denied class counsel's motion to
compel continued payment of attorneys' fees beyond the
ten-year wrap-up period. See Page v. Pension Benefit
Guar. Corp., 213 F.Supp.3d 200 (D.D.C. 2016). Class
counsel timely appealed.
STANDARD OF REVIEW
district court's order is final for jurisdictional
purposes because it "conclusively resolves the last
outstanding issue regarding the amount of and entitlement to
[class counsel's] fees and expenses." Cobell v.
Jewell, 802 F.3d 12, 22 (D.C. Cir. 2015).
parties disagree over the standard of review. Class counsel
insists that each of their claims should be reviewed de novo;
the PBGC contends that the district court's conclusion
that it had fully complied with the wrap-up agreement was a
finding of fact subject to clear-error review. Although the
district court's interpretation of the wrap-up agreement
is subject to de novo review, see Richardson v.
Edwards, 127 F.3d 97, 101 (D.C. Cir. 1997) ("We
customarily review decisions interpreting consent decrees
. . . de novo, in the same manner as we
review decisions interpreting contracts."), whether the
PBGC's actions satisfied the requirements of a
court-ordered consent decree is arguably a question of fact,
which "will not be found clearly erroneous unless the
court's account of the evidence is implausible in view of
the entire record and it is apparent that its findings are
clearly mistaken." Robinson v. Am. Airlines,
Inc., 90 ...