Morrow v. Jones: The Fifth Circuit Declares Rule 23(h) Notice a Non-Forfeitable Prerequisite to Attorney-Fee Awards

Introduction

Morrow v. Jones (United States Court of Appeals for the Fifth Circuit, No. 23-40546, decided 10 June 2025) addresses the seemingly procedural yet constitutionally significant question of notice to class members before awarding attorney fees in class litigation. What began as a § 1983 class action challenging a racially discriminatory “stop-and-seize” policy in Tenaha, Texas, evolved over 17 years into a decision that crystallises the mandatory nature of Federal Rule of Civil Procedure 23(h)’s notice requirement and limits the extent to which parties—and even courts—may ignore or “forfeit” that requirement.

The essential parties are:

Plaintiff-Appellant: James Morrow, representing a certified class of motorists subjected to alleged unlawful policing practices.
Defendant-Appellee: O’Neal Jones, Jr., in his official capacity as Mayor of the City of Tenaha.

The dispute on appeal did not concern liability or the substance of the earlier consent decrees, but rather the district court’s fourth award of attorney fees—$16,020 versus the $88,553.33 requested. The Fifth Circuit vacated the order in its entirety because class counsel never provided class-wide notice of the fee motion, contravening Rule 23(h). In doing so, the court elevated the notice prerequisite to a non-forfeitable, structural protection in class litigation.

Summary of the Judgment

The Fifth Circuit exercised appellate jurisdiction under 28 U.S.C. § 1291 because the attorney-fee order was a final decision.
Reviewing for abuse of discretion, the panel—Judge Willett writing; Judges Haynes and Oldham concurring (Oldham in judgment only)—held one issue dispositive: lack of Rule 23(h) notice.
Although the defendants argued the plaintiffs had “waived” notice by not raising it earlier, the court characterised any failure as, at most, forfeiture and exercised discretion to reach the issue.
The panel stressed both the mandatory text of Rule 23(h) and the judiciary’s independent duty to safeguard absent class members’ interests.
Result: the attorney-fee award was VACATED and the case REMANDED for proceedings consistent with proper Rule 23(h) notice, leaving all other fee-related arguments unresolved.

Analysis

Precedents Cited

The court invoked a tapestry of authorities, each serving a particular function in the reasoning:

Rule 23(h) & Advisory Committee Notes (2003) – Expressly require notice of fee motions to class members “in all instances.”
Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998) – Reaffirmed the lodestar method for determining reasonable fees in class actions.
Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974); City of Burlington v. Dague, Perdue v. Kenny A. – Frame when fee enhancements are proper, though rendered moot by the notice defect.
Deposit Guar. Nat. Bank v. Roper, 445 U.S. 326 (1980) – Clarified “aggrieved” status for appeals.
United States v. Olano, 507 U.S. 725 (1993) & United States v. Zuniga, 860 F.3d 276 (5th Cir. 2017) – Distinguish waiver from forfeiture.
Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir. 1979) and Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) – Emphasise the district court’s gate-keeping role in class actions.
Chieftain Royalty Co. v. SM Energy Co., 100 F.4th 1147 (10th Cir. 2024) – Parallel holding vacating fees for lack of Rule 23(h) notice, used for persuasive support.

Legal Reasoning

Mandatory Wording of Rule 23(h)
The rule states notice “must” be served. The panel found this language unequivocal, leaving courts no discretion to bypass notice.
Structural Nature of Notice
Notice protects absent class members—non-party beneficiaries entitled to transparency before their settlement or judgment fund is depleted by fees. That interest transcends tactics between named litigants.
Forfeiture Doctrine Cannot Trump Structural Protection
Even if plaintiffs failed to “timely” assert the right, the appellate court has discretion to cure a potential miscarriage of justice where the issue is purely legal and undisputed (no factual development required).
Independent Judicial Duty
Citing Advisory Committee Notes and precedent, the court underscored that trial judges must actively supervise fee requests “even in the absence of objections.” Failure to ensure notice thus constitutes an abuse of discretion per se.

Impact of the Decision

Heightened Scrutiny on Fee Motions in the Fifth Circuit – District courts must verify and document Rule 23(h) compliance before ruling; failure will likely result in automatic vacatur.
Non-Forfeitable Nature of Rule 23(h) Notice – Counsel can no longer rely on opposing parties’ silence; absence of notice is a defect the court must raise sua sponte.
Guidance for Practitioners – Class counsel must incorporate a robust notice plan (mail, email, publication, website) for all fee motions, not merely settlement approvals.
Litigation Strategy – Defendants cannot “sandbag” by ignoring notice defects, expecting to defend a reduced fee award on forfeiture grounds.
Inter-Circuit Dialogue – Aligns the Fifth Circuit with the Tenth Circuit’s Chieftain Royalty and may influence other circuits to treat Rule 23(h) violations as structural errors.

Complex Concepts Simplified

Rule 23(h) Notice – A requirement that class counsel must formally inform every class member of their intent to request attorney fees, giving them a chance to object.
Lodestar Method – Multiplying reasonable hours worked by a reasonable hourly rate; the starting point for most fee calculations.
Consent Decree – A court-approved settlement that is enforceable as a judgment, often used to monitor ongoing conduct (here, policing practices).
Forfeiture vs. Waiver – Waiver is intentional relinquishment; forfeiture is negligent or inadvertent failure to invoke a right. The court’s power to cure forfeiture is broader.
Abuse of Discretion Review – Appellate standard asking whether the lower court’s decision was based on a clearly erroneous assessment of the evidence or a misapplication of law.
28 U.S.C. § 1291 “Final Decision” – Gives courts of appeals jurisdiction over decisions that end the litigation on the merits or leave nothing but execution of the judgment.

Conclusion

Morrow v. Jones stands as a robust reaffirmation that procedural safeguards in class actions are not optional formalities but structural imperatives. By declaring Rule 23(h) notice a non-forfeitable prerequisite, the Fifth Circuit places a clear, bright-line obligation on district courts and counsel alike: no notice, no fee award.

In the broader legal landscape, the decision advances three key themes: (1) judicial vigilance in protecting absent class members, (2) the supremacy of explicit rule text over expediency or party default, and (3) an emerging consensus among circuits that Rule 23(h) violations demand automatic corrective action. Future litigants would be wise to treat notice in fee motions with the same meticulous care given to settlement approval, lest they see their hard-earned fees unravel on appeal.