George Mckenna, et al., Plaintiffs-appellees,andshari A. Berger; Gary Slippy; and Candida Wright,plaintiffs-appellants, v. Sears, Roebuck and Co., Defendant-appellee, 97 F.3d 1459 (9th Cir. 1996)

ORDER

Judges Canby and Leavy agree that the appellants have standing to challenge the district court's approval of the attorneys' fee. Judge Reinhardt would dismiss the appeal for lack of standing.

Judges Canby and Leavy agree that the separately negotiated fee agreement is not a per se violation of public policy. Judge Reinhardt, were he to reach the merits, would agree.

Judges Canby and Leavy are also of the view that the district court erred in failing to analyze and determine the reasonableness of the negotiated fee. Judge Canby would have the district court assess the reasonableness of the fee according to common fund standards, but without treating the fee and the plaintiffs' negotiated class recovery as one fund. Judge Leavy would require the fee and the class award to be treated as a common fund.

Were Judge Reinhardt to reach the merits, he would affirm the fee award. Even though the district court may have erred in not analyzing the appropriateness of the amount of the fee award, Judge Reinhardt would affirm because the district judge who handled the matter is deceased, and the reasonableness of the fee is apparent from the record before us.

In view of these divergent positions, and because a ruling by the district court on the reasonableness of the fee may end this litigation, we remand to the district court for 90 days for such a determination. The district court shall furnish this court with a copy of its ruling as soon as it is entered.

REMANDED FOR 90 DAYS WITH INSTRUCTIONS.