Strack’s “Ranges” Are Guidelines, Not Ceilings: Upholding a 33.33% Common-Fund Fee (2.15 Lodestar Multiplier) Under Oklahoma Reasonableness Review

1. Introduction

This appeal is the third trip to the Tenth Circuit in a long-running Oklahoma oil-and-gas royalty underpayment class action. The underlying merits dispute settled in 2015 for $52 million, but attorneys’ fees continued to generate litigation for years. The plaintiff class representative, Chieftain Royalty Company, and class counsel sought a common-fund fee. Two class members—Danny George and the Estate of Charles David Nutley (the “Objectors”)—contended that the fee award was excessive under Oklahoma law as clarified by the Oklahoma Supreme Court.

The core legal issue in this installment was whether the district court abused its discretion by reinstating a fee award equal to 33.33% of the settlement fund (about $17.33 million) after providing renewed notice to the class. The Objectors argued the award violated Strack v. Continental Resources, Inc., 507 P.3d 609 (Okla. 2021), which discussed typical percentage ranges in class actions and indicated multipliers above 1.5 are rarely permitted. They also attacked the district court’s lodestar cross-check—particularly the inclusion of time spent defending the fee award on appeal—and argued counsel’s reconstructed time records were insufficient.

2. Summary of the Opinion

The Tenth Circuit affirmed. Applying the deferential abuse-of-discretion standard, the court held that Oklahoma law makes “reasonableness” the touchstone for class action fee awards. The panel concluded:

• Strack does not impose hard ceilings (e.g., 30% of the fund or a 1.5 multiplier) but provides guidelines; deviations are permissible when justified by evidence and Oklahoma’s statutory factors.
• The district court reasonably justified a 33.33% award, conducted a proper lodestar cross-check, and reasonably found the corresponding 2.15 multiplier supported by the statutory factors.
• Including reasonable time spent applying for and defending the fee—including appellate work—was within the district court’s discretion under Oklahoma precedent.
• Reconstructed time records are not categorically barred under Oklahoma law and can support a fee award when the record is adequate.
• The Objectors’ late-raised statutory-interest argument was forfeited.

3. Analysis

3.1 Precedents Cited (and Their Role)

• Chieftain Royalty Co. v. Enervest Energy Inst. Fund XIII-A, L.P. (Chieftain I), 888 F.3d 455 (10th Cir. 2017)
  Influence: This was the key methodological pivot point. The Tenth Circuit previously held state law governs fees in a diversity class action and (based on its then-reading of Oklahoma law) reversed a percentage award and required lodestar-style analysis. It also raised concerns about counsel’s failure to keep detailed contemporaneous billing records. The 2026 opinion treats Chieftain I as the starting point of the fee-law correction that later culminated in Strack.
• Strack v. Continental Resources, Inc., 507 P.3d 609 (Okla. 2021)
  Influence: This is the controlling Oklahoma authority. Strack held Oklahoma allows either percentage-of-the-fund or lodestar in class actions, so long as the award is reasonable; and it demanded consideration of the statutory factors and a comparison of both methods (cross-check). The Tenth Circuit’s principal task was to interpret Strack faithfully while rejecting the Objectors’ attempt to convert its “typical” ranges into hard caps.
• Chieftain Royalty Co. v. SM Energy Co. (Chieftain II), 100 F.4th 1147 (10th Cir. 2024)
  Influence: The prior appeal vacated the fee award on a procedural notice defect, without reaching merits. The district court then re-noticed the class and reinstated its earlier reasonableness findings. The 2026 opinion focuses on the merits questions preserved and reasserted after proper notice.
• State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659 (Okla. 1979)
  Influence: Cited for two propositions: (1) Oklahoma’s emphasis on detailed time records in fee litigation; and (2) Oklahoma’s allowance of reasonable compensation for time spent applying for and defending a fee (“fees-on-fees”). The panel uses Burk to reject the Objectors’ argument that appellate fee-defense time must be excluded, and to anchor the idea that reconstructed records are not automatically disqualifying when later Oklahoma cases permit them.
• Parsons v. Volkswagen of Am., Inc., 341 P.3d 662 (Okla. 2014)
  Influence: Cited for Oklahoma’s strong presumption that the lodestar alone is reasonable and for Oklahoma’s emphasis on the relationship between results and the amount at stake. The Objectors attempted to rely on Parsons to narrow “reasonable” fee-defense time; the panel distinguished it as involving time from separate litigation for a different client.
• Spencer v. Okla. Gas & Elec. Co., 171 P.3d 890 (Okla. 2007) and Conti v. Rep. Underwriters Ins. Co., 782 P.2d 1357 (Okla. 1989)
  Influence: Both are used to defeat a categorical attack on reconstructed time records. The court quotes Spencer for the explicit statement that a fee award may be based on reconstructed records, and reads Conti as clarifying that Burk requires an adequate record—not necessarily contemporaneous timesheets.
• Miller v. Magnus, 452 P.3d 440 (Okla. Civ. App. 2019)
  Influence: Invoked by the Objectors to argue fees must track “contributions to recovery.” The panel limits Miller to its actual subject: apportionment between successive counsel, not the overall reasonableness of the fee amount.
• Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)
  Influence: The Oklahoma statute incorporates the Johnson factors (plus one additional risk factor), so the panel contextualizes Oklahoma’s 13-factor test as Johnson-based.
• Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994)
  Influence: Cited via Strack for the idea that courts should choose the methodology that best arrives at a reasonable award, reinforcing flexibility rather than rigid adherence to one method.
• Blum v. Stenson, 465 U.S. 886 (1984)
  Influence: Offered by Objectors to argue “results obtained” should not independently enhance lodestar. The panel responds that Oklahoma law differs and gives “results obtained” long-recognized importance (again citing Parsons).
• Schell v. OXY USA Inc., 814 F.3d 1107 (10th Cir. 2016), ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163 (10th Cir. 2011), Moothart v. Bell, 21 F.3d 1499 (10th Cir. 1994), McEwen v. City of Norman, 96 F.2d 1539 (10th Cir. 1991), and United States v. Wright, 826 F.2d 938 (10th Cir. 1987)
  Influence: These frame the standard of review and what counts as an abuse of discretion (including de novo review of legal principles and clear-error review of factual findings).
• Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) and Cook v. Rockwell Int'l Corp., 790 F.3d 1088 (10th Cir. 2015)
  Influence: Used to enforce forfeiture principles: arguments not timely raised on appeal cannot be revived on remand, and the panel uses this to reject the Objectors’ belated statutory-interest point.
• Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) and Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151 (10th Cir. 2007)
  Influence: These emphasize the breadth of permissible factfinding under clear-error review and reject “conflicting evidence” as insufficient by itself to prove clear error.
• Anderson Living Tr. v. WPX Energy Prod., LLC, 904 F.3d 1135 (10th Cir. 2018)
  Influence: Cited for the practical importance of class certification (“make or break”), supporting the district court’s reliance on counsel’s certification success as a reasonableness factor distinguishing the case from Strack.
• Int'l Precious Metals Corp. v. Waters, 530 U.S. 1223 (2000) (O'Connor, J., statement concerning denial of certiorari)
  Influence: Used (via Strack) to underline the “rational relationship” requirement between fee and recovery.

3.2 Legal Reasoning

The opinion’s reasoning is organized around a single controlling concept: under Oklahoma law, the “touchstone” is reasonableness. Methodology is instrumental, not dispositive.

From that premise, the court resolves three main attacks:

(a) Percentage-of-the-fund: why 33.33% can be reasonable

The Objectors’ primary interpretive claim was that Strack effectively sets a soft ceiling at 30%. The Tenth Circuit rejects this by emphasizing Strack’s own language: courts must select the method that best arrives at a reasonable award “given the circumstances of the particular case” and must apply the thirteen statutory factors in Okla. Stat. tit. 12, § 2023(G)(4)(e). The panel therefore treats any departure from the typical range as permissible if it is:

• tied to the statutory factors, and
• supported by record evidence (not conclusory).

The district court, in the panel’s view, did precisely that: it found eleven of thirteen factors supported enhancement and highlighted (i) “nearly complete success,” (ii) high risk/non-recovery complexities (including lease variation and unsettled substantive law), and (iii) special skill in securing class certification when certification law was “in flux.”

The panel also stresses proportionality: the deviation is modest (33.33% vs. a 30% upper average) and not comparable to the 40% that Strack rejected on that record.

(b) Lodestar cross-check: rejecting “reverse engineering” as a category error

The Objectors argued the district court improperly “reverse engineered” its lodestar multiplier to match the percentage award. The panel’s response clarifies an important operational point about cross-checking:

• A cross-check necessarily calculates the multiplier required to reach the percentage award and then asks whether that multiplier is reasonable under the statutory factors.

The panel distinguishes Strack’s criticism of the lower court: the problem there was not numeric equivalence itself, but the lack of evidentiary support and the “cursory” statutory-factor analysis. Here, the district court stated it was doing a cross-check, computed a base lodestar, derived the 2.15 multiplier, and then performed a factor-by-factor reasonableness review supported by record citations.

(c) “Fees-on-fees” and reconstructed records: discretion bounded by Oklahoma law

Two practical disputes recur in fee litigation: whether time spent litigating fees is compensable, and whether reconstructed time can support a lodestar.

• Fees-on-fees: The panel treats State ex rel. Burk v. City of Oklahoma City as controlling authority allowing recovery for reasonable time spent applying for and defending fees. The Objectors’ attempt to limit that to work that “contributed to establishing the recovery” was rejected as unsupported by the Oklahoma cases cited.
• Reconstructed time: The panel reads Spencer v. Okla. Gas & Elec. Co. and Conti v. Rep. Underwriters Ins. Co. as foreclosing a categorical rule against reconstructed records, so long as the record is “adequate” to judge reasonableness.

(d) Statutory-factor challenges and forfeiture

The Objectors argued the district court double-counted factors that are “subsumed” in the lodestar. The panel answers with a record-based point: the district court explicitly discounted or limited weight where overlap existed (e.g., experience reflected in hourly rates; time and labor generally subsumed). That is the standard technique to avoid impermissible double counting, and it supported the court’s discretion.

They also tried to reframe “amount in controversy” by adding Oklahoma’s statutory interest on late royalty payments (Okla. Stat. tit. 52, § 570.10(D)(1)). The panel holds the argument was forfeited because it was not properly raised earlier and cannot be revived on remand, citing Kitchen v. Herbert and Cook v. Rockwell Int'l Corp..

3.3 Impact

This decision’s practical impact is less about creating a new formula than about how federal courts applying Oklahoma law should read Strack and review district court fee determinations:

• Strack ranges are persuasive benchmarks, not automatic caps. Parties should treat 20–30% and “rarely above 1.5” as starting points. Courts may approve higher figures if they build a record-based explanation anchored in § 2023(G)(4)(e)’s factors.
• Cross-check methodology is validated. The opinion rejects the notion that “matching” the percentage award through a computed multiplier is inherently suspect. What matters is the court’s independent reasonableness review of that multiplier.
• District courts retain discretion on fees-on-fees (including appellate defense) under Oklahoma law. While the panel acknowledges the closeness of compensating extraordinary appellate steps (rehearing, certiorari), it affirms that Oklahoma’s baseline rule permits reasonable compensation and that reasonableness is fact-bound.
• Reconstructed time records remain viable in Oklahoma fee practice. Counsel who lack contemporaneous records are not automatically barred, but must present an adequate evidentiary record to support reasonableness.
• Objector strategy is implicitly constrained by standard-of-review realities. The opinion underscores that many fee-award disputes are factual, reviewed for clear error, and appellate courts will rarely reweigh record evidence.

4. Complex Concepts Simplified

• Common fund / percentage-of-the-fund fee: When litigation creates a pot of money for a class, the court may award attorneys a percentage of that pot as compensation, reducing what class members receive.
• Lodestar: A baseline fee calculated by multiplying reasonable hours by a reasonable hourly rate.
• Multiplier (lodestar enhancement): If the court finds the baseline lodestar too low (or too high) given the statutory factors—risk, results, complexity, etc.—it may multiply the lodestar by a factor (e.g., 2.15) to reach a reasonable final fee.
• Lodestar cross-check: When the court starts with a percentage fee, it “checks” that number by computing what multiplier would be needed to reach it from the lodestar. If the implied multiplier looks like a windfall, the percentage may be unreasonable.
• “Fees-on-fees”: Time lawyers spend proving up and defending their fee request. Some jurisdictions limit or disallow this in common-fund cases; Oklahoma (per Burk) allows it if reasonable.
• Abuse of discretion / clear error: Appellate courts give trial courts significant leeway on fee awards. Legal mistakes are reviewed closely (de novo), but factual findings and the ultimate fee determination are disturbed only when the trial court made a clear error of judgment or clearly erroneous factfinding.
• Forfeiture: If a party fails to raise an argument at the proper time, the party may lose the ability to use it later—including after a remand.

5. Conclusion

The Tenth Circuit’s published decision reinforces that, under Oklahoma’s class action fee statute as interpreted in Strack v. Continental Resources, Inc., the decisive inquiry is whether the fee is reasonable under the circumstances, not whether it fits neatly within numerical averages. A 33.33% common-fund fee and a 2.15 lodestar multiplier can be upheld when the district court conducts a thorough, evidence-backed review of Okla. Stat. tit. 12, § 2023(G)(4)(e)’s thirteen factors and performs a meaningful lodestar cross-check. The opinion also confirms that Oklahoma law permits reliance on reconstructed time records and allows reasonable compensation for fee-application and fee-defense work, even in prolonged, multi-appeal class litigation.