On June 10, 2025, the U.S. Court of Appeals for the Fifth Circuit ruled that courts must provide class-wide notice of an attorney fee motion under Federal Rule of Civil Procedure 23(h).   Morrow v. Jones, No. 23-40546, 2025 WL 1634785 (5th Cir. June 10, 2025).

The final provision of Rule 23 —subsection (h)—provides that in a certified class action, notice of an attorney fee motion “must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.”   The rationale for this rule is fairness to the class: all class members must have the opportunity to object to a motion for attorneys’ fees.

In Morrow v. Jones, the district court awarded fees without notice to the class.  Defendants tried to argue that the plaintiffs waived this notice requirement by failing to raise it in either the district court or in their prior appeal.  The Court disagreed and held that the “mandatory language” of Rule 23(h) renders this notice requirement a non-forfeitable issue.  Moreover, the Court insisted that it is the court that ultimately “bears [the]responsibility” of ensuring that notice is provided, regardless of whether the plaintiffs raise the issue.  As a result, the appellate court found that the district court abused its discretion in awarding fees without notice and vacated and remanded the decision.

This decision provides an important reminder of the notice requirement of Rule 23(h).  This requirement is usually moot in the settlement context where no class has yet been certified, since the attorney fee motion is typically wrapped into the settlement notice sent to the class.  However, in other contexts, such as after the initial class notice has been sent following class certification, it is an important procedural requirement that is sometimes overlooked.  In practice, courts often allow for more relaxed requirements in terms of the form of notice but—as the Fifth Circuit makes clear—Rule 23(h) clearly requires some kind of notice to be provided.