In Morrow v. Jones, No. 23-40546 (5th Cir. June 10, 2025), the Fifth Circuit holds that it is reversible error for the district court to not issue notice of a motion for attorney fees as required by Federal Rule of Civil Procedure 23(h), even if nobody objects to the omission.
In a Fourth Amendment case brought under 42 U.S.C. § 1983 against the City of Tenaha and Shelby County officials, the plaintiffs obtained a classwide settlement, including four successive awards of attorney’s fees. On the fourth and final award, plaintiffs requested $88,553.33 but the the district court ultimately only awarded $16,020.00, which plaintiffs appealed.
The Fifth Circuit vacates and remands. Without reaching the merits of the appeal, the panel observes that the district court declined to send notice to the class of the final fee award. Fed. R. Civ. P. 23(h) provides that for fee petitions for class counsel, “[n]otice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.”
“Defendants do not dispute that notice of the fourth motion for attorney fees for class counsel was never provided to class members as Rule 23(h) requires. Instead, they argue that Plaintiffs have waived this issue on appeal by failing to raise it in the district court or in their prior appeal.” (The panel notes that the defendants meant forfeiture rather than waiver; “[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”)
But the panel holds that it has discretion consider the issue, even though no party raised it in the district court. “We exercise that discretion here because declining to address Rule 23(h) notice would unjustly deprive class members of the opportunity to object to the fee motion—an opportunity to which they are entitled by statute.”
The panel holds that the failure to issue notice was an abuse of discretion (because it violated the strict command of Rule 23(h)) and thus reversible error. “Because courts have ‘an independent obligation to protect the interests of the class,’ that was an abuse of discretion whether or not Plaintiffs themselves raised the issue.”
“It is impossible to assume how class members who were never informed of the fourth attorney fees motion would have viewed it. They must be given the opportunity to review and object to the motion for attorney fees—as they are entitled by Rule 23—before we or the district court can decide what fees are reasonable.”
The order was thus vacated and remanded, to allow notice and an opportunity to object.
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