author: GRUENDER, Circuit Judge. KELLY, Circuit Judge,

text:
    Paul SCOTT, Plaintiff-Appellant v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee
    No. 16-1931
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 12, 2017
    Filed: April 28, 2017

      Counsel who presented argument on behalf of the appellant was Eugene Gregory Wallace, of Raleigh, NC. The following attomey(s) appeared on the appellant brief; Anthony W. Bartels, of Jonesboro, AR.
    Counsel who presented argument on behalf of the appellee was Melinda Newman, of Dallas, TX.
    Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.

      . Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017 and has been automatically substituted as a party pursuant to Federal Rule of Appellate Procedure 43(c)(2).

   GRUENDER, Circuit Judge.

Paul Scott appeals the decision of the district court affirming the administrative law judge’s (“ALJ”) denial of his application for supplemental security income under Title XVI of the Social Security Act. See 42 U.S.C. § 1381-1383f. Because the decision of the ALJ is supported by substantial evidence on the record as a whole, we affirm.

I. Background

Scott applied for supplemental security income in January 2013, alleging disability due to a back condition, migraine headaches, hearing loss, and a left eye injury. He alleged a disability onset date of October 15, 2012. Scott did not complete the eighth grade, but he has held jobs as an animal caretaker farm worker (a semiskilled occupation), construction worker, and power plant cleaner. Scott injured his back in a fall and eventually stopped working in 2012 due to back pain.

Scott’s claim was denied initially, upon reconsideration, and after a hearing before an ALJ. The ALJ employed the five-step evaluation process prescribed by 20 C.F.R. § 416.920(a). At step one, the ALJ considers whether the claimant is performing “substantial gainful activity,” and, if so, finds that the person is not disabled. 20 C.F.R. § 416.920(a)(4)(i). The ALJ found that Scott had not engaged in substantial gainful activity since the application date. At step two, the ALJ considers whether the claimant has a “severe medically determinable physical or mental impairment that meets the duration requirement.” Id. at § 416.920(a)(4)(ii). Here, the ALJ found that Scott suffered two severe impairments: borderline intellectual functioning and a back disorder. At step three, the ALJ considers whether the claimant’s severe impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Sub-part P, Appendix 1. Id. at § 416.920(a)(4)(iii). If so, then the ALJ must find the claimant disabled. 20 C.F.R. § 404.1520(d). At this step, the ALJ found that Scott’s impairments do not meet or equal one of the listed impairments. The ALJ considered Listing 12.05, finding that Scott did not manifest deficits in adaptive functioning prior to age twenty-two. The ALJ noted Scott’s history of attending special education classes but explained that the consultative examiners did not identify any other significant deficits. The ALJ also considered Listing 12.02, finding that Scott has only mild restrictions in daily living activities, mild difficulties in social functioning, and moderate difficulties in concentration, persistence, or pace. The ALJ noted that Scott is able to cook, help feed his sister’s calves, do laundry, dust, drive short distances, and care for personal hygiene. Although Scott reads and writes poorly and cannot balance a checkbook, he communicates effectively, can perform simple math, requires no reminders to complete chores, and is able to focus enough to watch television three hours per day. Thus, the ALJ found Scott did not meet or equal a listed impairment.

At step four, the ALJ determines the claimant’s residual functional capacity (“RFC”) and considers whether the claimant can perform past relevant work. Id. at § 416.920(a)(4)(iv). The ALJ found that Scott has the residual functional capacity to perform medium, unskilled work. However, the work is limited to jobs with few variables, little independent judgment, and interpersonal contact incidental to the work performed. Supervision should be simple, direct, concrete, and brief, and the work cannot involve making change. Tasks should be able to be “learned and performed by rote.” The ALJ then found that Scott cannot perform past relevant work. At step five, the ALJ considers the claimant’s RFC, age, education, and work experience to determine whether the claimant can adjust to other work. Id. at § 416.920(a)(4)(v). The vocational expert testified that an individual with Scott’s RFC could work as a cleanup worker or poultry hanger, jobs existing in substantial numbers in the national economy. As a result, the ALJ found Scott not disabled and denied his application for supplemental security income. The Appeals Council denied review.

Scott challenged the ALJ’s decision in the Eastern District of Arkansas pursuant to 42 U.S.C. § 405(g). The district court affirmed the ALJ’s decision, and Scott now appeals. He challenges the ALJ’s determination that he did not meet Listing 12.05C and contends that the ALJ failed to include his limitations in concentration, persistence,, or pace in the RFC hypothetical.

II. Discussion

We review the district court’s determination de novo, affirming the ALJ’s decision if it is “supported by substantial evidence on the record as a whole.” Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (quotation omitted). “Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner’s conclusion.” Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (quotation marks omitted)). While we must consider evidence both supporting and detracting from the ALJ’s decision, we will not reverse “simply because some evidence may support the opposite conclusion.” Id. Rather, “[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s decision.” Id.

A. Listing 12.05C

First, substantial evidence supports the ALJ’s determination that Scott does not meet or equal Listing 12.05C. Listing 12.05C requires: 1) “significantly subaver-age general intellectual functioning with deficits in adaptive functioning initially manifested ... before age 22,” 2) “[a] valid verbal, performance, or full scale IQ of 60 through 70,” and 3) “a physical or other mental impairment imposing an additional and significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (2013). The ALJ found and the parties do not dispute that Scott’s IQ of 63 falls within the prescribed range and that Scott has a qualifying physical limitation. Thus, the only contested question is whether Scott has demonstrated limitations in adaptive functioning that initially manifested before age twenty-two.

Substantial evidence supports the ALJ’s finding that Scott did not demonstrate adaptive function limitations. While Scott did not complete high school and has a history of attending special education classes, Scott’s work history demonstrates that he was able to maintain unskilled and semi-skilled work for multiple years. Indeed, he only ceased working due to his back condition, not mental issues. See Goff, 421 F.3d at 793 (finding relevant that the claimant left work because of reasons other than the claimed disability). Although Scott reads poorly, cannot balance a checkbook, and cannot manage finances or complete forms without assistance, he generally lives independently, communicates well and thinks logically, has a driver’s license, can drive and shop for groceries on a weekly basis, can perform simple math, and helps feed his sister’s calves. He can cook meals, do laundry, dust, follow instructions, and does not require reminders to complete tasks. Although Scott challenges the district court’s analogy to Ash v. Colvin, 812 F.3d 686, 692 (8th Cir. 2016), Ash provides an apt comparison. Ash had a history of attending special education classes, could not pay bills or manage a checking account without assistance, and was diagnosed with mild mental retardation, but she could drive, shop, “complet[e] basic household chores and activities of daily living,” and had a “ten-year work history.” Id. at 691. Thus, we found that substantial evidence supported the ALJ’s determination that Ash did not demonstrate the adaptive function limitations necessary to meet Listing 12.05C. Id. In the same way, Scott’s limitations, when considered together with Scott’s abilities, do not compel the conclusion that Scott’s condition meets or equals Listing 12.05C. See also Cheatum v. Astrue, 388 Fed. Appx. 574, 576-77 (8th Cir. 2010) (finding that an individual diagnosed with borderline intellectual functioning who “had maintained employment in semi-skilled and unskilled positions for many years” and could “perform activities of daily living and light housework, drive a car, help prepare meals, and care for her father who was suffering from Alzheimer’s” did not show deficits in adaptive functioning).

Contrary to Scott’s argument, Lott v. Colvin, 772 F.3d 546 (8th Cir. 2014), is not applicable. In Lott, the ALJ failed to have an IQ test administered and failed to “make specific findings as to whether the record evidence supports an onset of intellectual and adaptive functioning disability before age twenty-two.” Id. at 550. In this case, however, the ALJ did make specific findings regarding Scott’s adaptive functioning, finding that he did not demonstrate adaptive functioning deficits that manifested prior to age twenty-two. Accordingly, we must affirm as long as substantial evidence supports those findings, even if substantial evidence also supports the opposite conclusion. See Goff, 421 F.3d at 789. As explained above, substantial evidence supports the ALJ’s conclusion that Scott did not demonstrate the adaptive function limitations necessary to qualify under Listing 12.05C.

B. RFC Hypothetical

Second, the ALJ adequately accounted for Scott’s limitations in concentration, persistence, or pace in the RFC hypothetical. In order to constitute substantial evidence, a vocational expert’s testimony must be based on a hypothetical that captures the “concrete consequences” of the claimant’s deficiencies. Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (quotation omitted); Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). Indeed, “the hypothetical question need not frame the claimant’s impairments in the specific diagnostic terms used in medical reports.” Lacroix, 465 F.3d at 889. A hypothetical question that omits the effects of concentration, persistence, or pace deficiencies that the ALJ has found is not sufficient. Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (finding a limitation to simple work insufficient to describe the effects of deficiencies in the ability to maintain regular attendance, be punctual, maintain attention and concentration, and complete a normal work week). That being said, a sufficient hypothetical need not contain much more than the hypothetical at issue in Newton. See Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997) (finding sufficient a hypothetical that included “scantly more than what was included in the Newton hypothetical”).

The RFC hypothetical provided for medium, unskilled work involving “personal contact that is incidental to the work performed,” requiring “little independent judgment ... [and] simple, direct, and ... very brief’ supervision. The complexity of tasks was limited to “tasks [that] can be learned and performed by rote.” This hypothetical adequately captured the concrete consequences of Scott’s deficiencies. In describing his findings of Scott’s difficulties with respect to concentration, persistence, or pace, the ALJ noted Scott’s reading, writing, and math difficulties, as well as his history of special education and failure to finish high school. Although the ALJ noted that Scott “described a reduced attention span,” he “retains the focus necessary to watch three hours of television per day” and does not require reminders. Indeed, the ALJ noted that Scott demonstrated good concentration and persistence during consultative examinations, but that consultative examiners noted a slow pace. As a result, the ALJ concluded Scott could not perform complex tasks and accordingly crafted the RFC to limit the complexity of tasks and the duration and complexity of supervision (in addition to interpersonal and math-related limitations). Given the lack of severity the ALJ found in Scott’s concentration, persistence, or pace deficiencies, limiting the complexity of tasks to those performed by rote and requiring that instructions be brief, simple, direct, and concrete sufficiently captured the concrete consequences of Scott’s deficiencies, even if the hypothetical did not lay out the exact deficiencies with medical precision. See Lacroix, 465 F.3d at 889. Thus, the vocational expert’s testimony constitutes substantial evidence supporting the ALJ’s finding at step five.

III. Conclusion

Accordingly, substantial evidence supports the ALJ’s findings, and we affirm the order of the district court.

KELLY, Circuit Judge,

dissenting.

I respectfully dissent from the court’s opinion because I believe the ALJ’s determination that Scott did not demonstrate adaptive functioning deficits manifesting before age 22 was not supported by substantial evidence. In reaching its conclusion, the ALJ relied on the fact that the consultative examiners diagnosed Scott with “borderline intellectual functioning” instead of “mental retardation.” The DSM-IV’s definition of mental retardation requires adaptive functioning deficits in at least two specified skill areas. Because the examiners believed Scott had deficits in just one of the specified areas — functional academic skills — they concluded Scott did not have mental retardation. However, a claimant need not meet the DSM-IV definition of mental retardation to meet Listing 12.05C. Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). Rather, to meet Listing 12.05C, a claimant need simply demonstrate “deficits in adaptive functioning” that manifested before age 22. Id. (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C).

Here, Scott presented ample evidence of deficits in adaptive functioning that manifested before age 22. To begin with, Scott presented evidence that he has a full-scale IQ of 63. Although Scott was 46 at the time of the evaluation, “a person’s IQ is presumed to remain stable over time in the absence of any evidence of a change in a claimant’s intellectual functioning.” Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001). Additionally, Scott presented evidence that he attended special education classes, repeated the sixth and seventh grades, quit school after the eighth grade, cannot manage his finances or make change, has worked only in unskilled menial-labor jobs, has difficulty reading and writing, and required assistance to complete his disability forms. These circumstances are similar to those in other cases where we concluded the claimant demonstrated deficits in adaptive functioning that manifested prior to age 22. See, e.g., Christner v. Astrue, 498 F.3d 790, 791, 793 (8th Cir. 2007) (concluding that “contrary to the ALJ’s determination, there is some circumstantial evidence to support the fact that [the claimantj’s deficiency manifested before age twenty-two” where he had a full-scale IQ of 58, attended special education classes, and quit school after the sixth grade); Maresh, 438 F.3d at 900 (concluding that “the ALJ should have found that [the claimantj’s impairment manifested” before age 22 where the claimant had a verbal IQ of 70 at age 37, attended special education classes, quit school after the ninth grade, and, as a child, often fought with other children).

A history of working in semi-skilled or skilled positions requiring average intellectual functioning, such as cashier or certified nursing assistant, can be evidence that a claimant does not have deficits in adaptive functioning. See Ash, 812 F.3d at 691-93; Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). But here, there is no evidence Scott has ever performed semiskilled-or skilled work. The vocational expert testified that Scott’s work as a farmhand would be semi-skilled if it involved duties like recording inventory, but that it would be unskilled if it involved “only the labor part” of the job. Nothing in the record suggests that Scott’s farmhand duties included any tasks similar to recording inventory; on the contrary, Scott indicated in his work history report that he did not “[d]o any writing, complete reports or perform duties like this” as a farmhand, and he reported to the consultative examiners that he performed only “manual labor” as a farmhand. Furthermore, neither Scott’s history of simple, unskilled labor, nor his ability to perform “rudimentary activities of daily living” — such as driving short distances, preparing simple meals, washing laundry, dusting, and watching television — is inconsistent with having deficits in adaptive functioning. See Lott, 772 F.3d at 551. As we have previously explained, Listing 12.05C applies to individuals whose subaverage intellectual functioning would not itself preclude employment in the absence of an additional physical or mental impairment. Id. For example, in Lott, we concluded that the claimant was not necessarily unable to meet Listing 12.05C solely because he had worked as a construction worker and short-order cook and could carry out basic daily activities. Id. at 548, 551-52; see also Reed v. Colvin, 779 F.3d 725, 726 (8th Cir. 2015) (per curiam) (explaining that the claimant’s daily activities and six-year history of unskilled work did not undermine her allegations of an intellectual disability meeting Listing 12.05C); Bailey v. Apfel, 230 F.3d 1063, 1065 (8th Cir. 2000) (determining that the claimant’s daily activities of watching television and visiting friends “d[idj not call into question the validity of [his] IQ results,” which met Listing 12.05C). For the reasons above, I would hold that the ALJ’s decision to deny benefits under Listing 12.05C was not supported by substantial evidence.

      . The Honorable Beth Deere, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

      . The dissent argues that Scott's work on a farm as an animal caretaker was unskilled. However, the vocational expert testified that this job is semi-skilled because it requires a worker to provide the animals with the correct amount of food and to keep records accordingly. Neither Scott's work history form nor the consultative physician’s report support the .conclusion that Scott’s farmhand work was limited exclusively to manual labor as the dissent suggests.

      . Scott does not challenge the ALJ’s determination that he retains the residual functional capacity to carry on medium work despite his back condition. While Scott did claim his back condition as a disability, the back condition is not relevant to whether he suffers from adaptive function limitations.

      . Notably, although Ash did work as a cashier, she required a special accommodation and could not calculate change herself. Ash, 812 F.3d at 691.

      . For clarity, I use the term "mental retardation,” used in DSM-IV, rather than the'updated term “intellectual disability,” used in DSM-5.


source: Caselaw Access Project

author: GRUENDER, Circuit Judge.

license: Public Domain

text:
    Erin C. CALIGIURI, Objector-Appellant Devi Khoday; Danise Townsend, individually and on behalf of the class they represent, Plaintiffs-Appellees v. SYMANTEC CORP.; Digital River, Inc., Defendants-Appellees Michelle Van De Voorde, Objector-Appellant Devi Khoday; Danise Townsend, individually and on behalf of the class they represent, Plaintiffs-Appellees v. Symantec Corp.; Digital River, Inc., Defendants-Appellees
    No. 16-2015, No. 16-2113
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 3, 2017
    Filed: April 28, 2017

      Counsel who represented the appellant Galigiuri was Brent Vullings of College-ville, PA.
    Counsel who represented appellant Van de Voorde was Robert C. Black III of Edina, MN.
    Counsel who represented the appellee was Karen Riebel, of Minneapolis, MN, Douglas James McNamara, of Washington, DC, Andrew N. Friedman, of Washington, DC, Kate M. Baxter-Kauf, of Minneapolis, MN, Jessica A. Frogge, of Chicago, IL, and Sally Handmaker of Washington, DC.
    Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
   GRUENDER, Circuit Judge.

Erin Caligiuri and Michelle Van de Voorde appeal the district court’s order approving a class action settlement and granting attorneys’ fees and service awards. Caligiuri argues that the district court abused its discretion by (1) approving the settlement without knowing the final administrative costs or the final amount received by the class, (2) calculating attorneys’ fees as a percentage of the total settlement fund without deducting administrative costs, (3) failing to ensure that unclaimed settlement funds would be used to benefit the class, and (4) granting service awards of $10,000 to each named plaintiff. Van de Voorde joins in Caligiuri’s first two arguments. We affirm.

I. BACKGROUND

In January 2011, plaintiffs filed a class action against Symantec Corp. and Digital River, Inc. (collectively “Symantec”). Sym-antec sold download insurance services costing between $4.99 and $16.99. These services allowed purchasers of Norton software to re-download the software beyond sixty days from the date of their purchase. Plaintiffs alleged that Symantec failed to disclose that consumers could use various free alternatives to re-download their Norton software. After the close of discovery, the district court certified a national class comprised of all persons in the United States who purchased the download insurance services between January 24, 2005 and March 10, 2011.

In April 2015, the parties agreed to settle. The settlement agreement provided that Symantec would pay $60,000,000 into a total settlement fund. In addition to this amount, Symantec agreed to pay each named plaintiff up to $7,500 of any service award approved by the court. Any amount over $7,500 would be paid from the total settlement fund. To receive reimbursement, class members were required to submit an electronic claim form within thirty days after entry of the final approval order. Class members who submitted an approved claim form would receive reimbursement from the net settlement fund, which consists of the total settlement fund after subtracting attorneys’ fees and expenses, administrative costs, and any amount of service awards exceeding $7,500 per named plaintiff. Approved claimants would receive $50 for each purchase of download insurance services, subject to a pro rata reduction if the total claims exceeded the net settlement fund. If, after distribution of the approved claims, sufficient funds remained to pay at least $2 to each approved claimant, then such funds would be distributed to approved claimants in a second distribution on a pro rata basis. If any funds remained after distribution to approved claimants, the remaining funds would be distributed cy pres to the Electronic Frontier Foundation, a nonprofit digital rights group.

In October 2015, the district court preliminarily approved the settlement and appointed a settlement administrator. The settlement administrator’s direct notice program provided notice of the settlement via e-mail to class members with a known e-mail address and via postcard to class members with an unknown or invalid email address. The e-mail and postcard notices directed the class members to a settlement website containing the electronic claim form.

The court scheduled a final fairness hearing for January 19, 2016. Before the hearing, the settlement administrator informed the court that, as of January 10, 2016, it had incurred $1,955,681.56 in costs and estimated that the total cost of the entire settlement administration would be approximately $2,420,681.56. It further stated that it already had received claims for 307,240 unique purchases.

In addition, class counsel filed a motion for attorneys’ fees, expenses, and service awards. Class counsel requested an award of attorneys’ fees of one-third of the total settlement fund, which amounts to $20,000,000, as well as reimbursement for $738,605.19 in litigation expenses. The motion also requested that the court grant service awards of $10,000 to each of the two named plaintiffs.

Class members Erin Caligiuri and Michelle Van de Voorde timely objected to the settlement and to class counsel’s motion for attorneys’ fees and service awards. After the fairness hearing, the district court granted final approval of the settlement, granted class counsel’s motion for attorneys’ fees, expenses, and service awards, and denied all objections. Caligiuri and Van de Voorde now appeal.

II. DISCUSSION

A. Settlement Approval

A district court may approve a class action settlement only after finding that it is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). We review a district court’s order approving a class action settlement for abuse of discretion. Marshall v. Nat’l Football League, 787 F.3d 502, 508 (8th Cir. 2015). When reviewing for abuse of discretion, “we ask whether the District Court considered all relevant factors, whether it was significantly influenced by an irrelevant factor, and whether in weighing the factors it committed a clear error of judgment.” Id. (citation and alternations omitted).

Caligiuri and Van de Voorde do not challenge- the fairness of the settlement terms. Rather, they argue that the district court abused its discretion by approving the settlement without knowing the final administrative costs or the final amount received by the class. They contend that the district court could not have determined the fairness, reasonableness, and adequacy of the settlement without knowing these amounts. On this basis alone, they request that we vacate the district court’s settlement approval. We decline to do so.

First, although the district court did not know the final administrative costs, it was provided with an estimate. Before the fairness hearing, the settlement' administrator informed the court that it estimated that the total cost of the entire settlement administration would be approximately $2,420,681.56. This estimate was subject to change because administrative costs would continue to accrue throughout the process of distributing the settlement, which would not begin until the court granted final approval. For this reason, it is common for courts to approve settlements after receiving only estimates of administrative costs. See, e.g., Huyer v. Buckley, 849 F.3d 395, 397 (8th Cir. 2017) (noting that district court approved settlement where administrative costs were estimated at $3,250,000 and funds would be deducted from net settlement fund if actual costs exceeded that amount). As such, the district court was entitled to rely on the estimates provided by the settlement administrator when deciding whether to approve the settlement, and there is no indication that the court' failed to consider that information.

Second, there likewise is no requirement for a court to know the final amount received by the class before approving a settlement. See Hamilton v. SunTrust Mortg., Inc., No. 13-60749-civ, 2014 WL 5419507, at *4 (S.D. Fla. Oct. 24, 2014) (collecting cases and concluding that “[district courts often grant final approval of class actions settlements before the final claims deadline”). Indeed, at the time the district court approved the settlement, it could have estimated that the net settlement fund would be approximately $36,835,713.25. And the court knew that, under the terms of the settlement agreement, the vast majority of the net settlement fund would be distributed to class members, because if enough funds remain to distribute at least $2 to each approved claimant, then all remaining funds will be distributed to approved claimants on a pro .rata basis. Thus, as the district court observed, “any cy pres distribution would likely be minimal, consisting only of un-cashed checks and any funds remaining if a second distribution to the class would pay less than $2 to each approved claimant.”

Furthermore, to the extent that Caligiuri and Van de Voorde suggest that there was a possibility that “the size of the individual awards compared to claimants’ estimated damages” would be inadequate, see In re Baby Prods. Antitrust Litig., 708 F.3d 163, 174 (3d Cir. 2013), their objection is baseless. As the district court noted, “it is anticipated that class members submitting valid claims will receive an amount in excess of their out-of-pocket loss — around $50 per claim, compared to the $4.99 to $16.99 purchase price.” Indeed, the district court was reasonable to anticipate that each approved claimant would receive around $50 per purchase. Before the fairness hearing, the settlement administrator represented that it had received 307,240 claimed purchases, which would not be enough to trigger the pro rata reduction from $50. In addition, class counsel represented that it was “likely that most valid claimants will receive more than their out-of-pocket losses here.” As it turns out, this prediction was correct. The settlement administrator has received claims for 732,049 purchases. According to class counsel, even if all of those claims are valid, each approved claimant will receive approximately $49.82 per purchase — an amount still well in excess of what each claimant paid. Therefore, the district court did not abuse its discretion by approving the settlement without knowing the final administrative costs or the final amount received by the class, and we decline to vacate its order on this basis.

B. Attorneys’ Fees

“Decisions of the district court regarding attorney fees in a class action settlement will generally be set aside only upon a showing that the action amounted to an abuse of discretion.” Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1156 (8th Cir. 1999). “Courts utilize two main approaches to analyzing a request for attorney fees.” Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 244 (8th Cir. 1996). “Under the ‘lodestar’ methodology, the hours expended by an attorney are multiplied by a reasonable hourly rate of compensation so as to produce a fee amount which can be adjusted, up or down, to reflect the individualized characteristics of a given action.” Id. “Another method, the ‘percentage of the benefit’ approach, permits an award of fees that is equal to some fraction of the common fund that the attorneys were successful in gathering during the course of the litigation.” Id. at 244-45. “It is within the discretion of the district court to choose which method to apply, as well as to determine the resulting amount that constitutes a reasonable award of attorney’s fees in a given case.” In re Life Time Fitness, Inc., Tel. Consumer Prot. Act (TCPA) Litig., 847 F.3d 619, 622 (8th Cir. 2017) (quotations and citations omitted). Here, the court chose to apply the percentage-of-the-benefit approach and to award one-third of the total settlement fund.

Caligiuri and Van de Voorde argue that the district court abused its discretion by calculating attorneys’ fees based on the total settlement fund because that fund includes administrative costs, which do not constitute a benefit to the class. As support, they cite the Seventh Circuit’s decision in Redman v. Radioshack Corp., which held that “administrative costs should not have been included in calculating the division of the spoils between class counsel and class members.” 768 F.3d 622, 630 (7th Cir. 2014).

However, regardless of the Seventh Circuit’s position, the rule in this circuit is that a district court may include “fund administration costs as part of the ‘benefit’ when calculating the percentage-of-the-benefit fee amount.’ ” Life Time Fitness, 847 F.3d at 623. We review the district court’s decision for an abuse of discretion, and we ask whether the appellant has made a “showing that the administrative costs were unjustifiable.” Id. at 623.

Caligiuri and Van de Voorde fail to make such a showing. In fact, rather than argue that administrative costs were unjustifiably high, Van de Voorde’s objection before the district court argued that the notice program was inadequate, and she advocated a more expensive option of mailing physical notice to all class members. Therefore, we decline to hold that the district court abused its discretion by including administrative costs in its calculation of attorneys’ fees.

Indeed, “the choice of whether to base an attorneys’ fee award on either net or gross recovery should not make a difference so long as the end result is reasonable.” Buckley, 849 F.3d at 399 (citation omitted). Caligiuri and Van de Voorde contend that the total amount of the fee award is unreasonable, suggesting that we reduce it to an amount representing 25% of the benefit to the class. We decline to do so for several reasons.

First, the district court did not err in concluding that the circumstances of this case justified a large award. The court determined that seven factors were relevant to deciding whether the requested fee was reasonable:

(1) the benefit conferred on the class, (2) the risk to which plaintiffs’ counsel was exposed, (3) the difficulty and novelty of the legal and factual issues of the case, (4) the skill of the lawyers, both plaintiffs’ and defendants’, (5) the time and labor involved, (6) the reaction of the class, and (7) the comparison between the requested attorney fee percentage and percentages awarded in similar cases.

Khoday v. Symantec Corp., No. 11-cv-180, 2016 WL 1637039, at *9 (D. Minn. April 5, 2016) (quoting Yarrington v. Solvay Pharm., Inc., 697 F.Supp.2d 1057, 1062 (D. Minn. 2010)). The court noted that each of these factors weighed in favor of granting class counsel’s request for a fee of one-third of the total settlement fund. Specifically, it found that: (1) “the $60 million cash settlement provides a substantial and immediate benefit to the class”; (2) “[plaintiffs’ counsel, in taking this case on a contingent fee basis, was exposed to significant risk”; (3) “there is every indication that the legal and factual issues are complex”; (4) “on both sides, each of the firms has extensive experience and expertise in complex class actions, including consumer actions”; (5) “Plaintiffs’ counsel has expended nearly 20,000 hours to litigate and resolve this dispute”; (6) “[o]ut of a class of nearly fourteen million, only five objections were filed”; and (7) “courts have frequently awarded attorney fees between 25 and 36 percent of a common fund in class actions.” Id. at *9-11. We find no error in the court’s analysis.

Second, the district court verified the reasonableness of the award by crosschecking it against the lodestar method. See Petrovic, 200 F.3d at 1157 (“[U]se of the ‘lodestar’ approach is sometimes warranted to double-check the result of the ‘percentage of the [benefit]’ method.”). The court determined that, “[t]o reach $20 million — the amount (without interest) that would be awarded under the percentage-of-the-fund method — would require a multiplier of less than two, which is below the range of multipliers commonly accepted in other cases.” Khoday, 2016 WL 1637039, at *11 (citations omitted). Indeed, this multiplier is well within the range of multipliers awarded in this circuit. Nelson v. Wal-Mart Stores, Inc., No. 05-cv-000134, 2009 WL 2486888, at *2 (E.D. Ark. Aug. 12, 2009) (approving multiplier of 2.5 and citing cases within the Eighth Circuit approving multipliers of up to 5.6). As such, we cannot say that the attorneys’ fees in this case were unreasonable. Therefore, the district court did not abuse its discretion in awarding the requested fees.

C. Cy Pres Recipient

“The cy pres doctrine takes its name from the Norman French expression, cy pres comme possible, which means ‘as near as possible.’ ” In re Airline Ticket Com’n Antitrust Litig., 307 F.3d 679, 682 (8th Cir. 2002). “In the class action context, it may be appropriate for a court to use cy pres principles to distribute unclaimed funds.” Id. “In such a case, the unclaimed funds should be distributed for a purpose as near as possible to the legitimate objectives underlying the lawsuit, the interests of class members, and the interests of those similarly situated.” Id.

In this case, the district court did not use cy pres principles to distribute unclaimed funds. Rather, the district court simply approved a settlement containing terms that provide for a cy pres distribution to a specific recipient upon certain conditions. Hence, we review the district court’s approval of these terms for an abuse of discretion, see Marshall, 787 F.3d at 508, keeping in mind that “a proposed cy pres distribution must meet our standards governing cy pres awards regardless of whether the award was fashioned by the settling parties or the trial court,” In re BankAmerica Corp. Sec. Litig., 775 F.3d 1060, 1066 (8th Cir. 2015) (citation and alterations omitted).

Caligiuri argues that the district court abused its discretion by failing to ensure that the cy pres recipient will utilize any remaining funds to benefit the class. However, we do not require cy pres recipients to use funds for the direct benefit of the class. Rather, cy pres distributions simply “must be for the next best use for indirect class benefit, and for uses consistent with the nature of the underlying action and with the judicial function.” Id. at 1067 (quotations and alterations omitted).

Here, the cy pres recipient is the Electronic Frontier Foundation. As the district court recognized, it “is a global nonprofit whose mission is to defend consumer civil liberties in the digital world, including digital consumer protection.” Khoday, 2016 WL 1637039 at *16. Because this organization will use the funds for purposes consistent with the nature of the underlying action — protecting consumers’ digital rights — it is an appropriate cy pres recipient.

Furthermore, any distribution will occur only if any remaining funds are insufficient to pay at least $2 to each approved claimant, satisfying the requirement that “a cy pres distribution to a third party of unclaimed settlement funds is permissible only when it is not feasible to make further distributions to class members.” Bank-America Corp., 775 F.3d at 1064 (quotations omitted). Therefore, we find no abuse of discretion in approving the terms of the settlement agreement providing that any minimal remaining funds will be distributed to the Electronic Frontier Foundation.

D. Service Awards

Courts often grant service awards to named plaintiffs in class action suits to “promote the public policy of encouraging individuals to undertake the responsibility of representative lawsuits.” See Yarrington, 697 F.Supp.2d at 1068 (citations omitted). We review the grant of service awards for abuse of discretion. See In re U.S. Bancorp Litig., 291 F.3d 1035, 1038 (8th Cir. 2002).

Caligiuri argues that the district court abused its discretion in awarding service awards of $10,000 to each of the named plaintiffs because the awards are excessive and unfair to the class. To the contrary, courts in this circuit regularly grant service awards of $10,000 or greater. See, e.g., Huyer v. Njema, 847 F.3d 934, 941 (8th Cir. 2017) (affirming approval of settlement that included $10,000 service awards to named plaintiffs); Zilhaver v. UnitedHealth Group, Inc., 646 F.Supp.2d 1075, 1085 (D. Minn. 2009) (granting named plaintiffs $15,000 each in service awards from common fund settlement of $17,000,000).

Moreover, the district court properly analyzed the relevant factors for deciding whether the service awards were warranted: (1) actions the plaintiffs took to protect the class’s interests, (2) the degree to which the class has benefitted from those actions, and (3) the amount of time and effort the plaintiffs expended in pursuing litigation. U.S. Bancorp, 291 F.3d at 1038. The court noted that the named plaintiffs “participated in interviews, assisted with discovery, were deposed, participated in conferences, and met with attorneys throughout the litigation process that lasted five years.” Further, their efforts “resulted in a settlement that will benefit all class members.” Khoday, 2016 WL 1637039 at *12. Thus, the court concluded that “service awards of $10,000 are warranted.” Id. We find no error in the district court’s analysis. Therefore, the district court did not abuse its discretion in this regard.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s order.

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota, adopting the report and recommendations of the Honorable Tony N. Leung, United States Magistrate Judge for the District of Minnesota.

      . This amount is calculated by subtracting from the $60,000,000 total settlement fund: $20,000,000 in attorneys' fees; $738,605.19 in reimbursement for litigation expenses; $2,420,681.56 in estimated administrative costs; and $5,000 representing the difference between the $7,500 per service award that Symantec agreed to pay separately and the $10,000 per award that the court actually granted.

      . Class counsel reached this amount by factoring in over $360,000 in anticipated administrative expenses not included in the settlement administrator's original estimate.


author: MURPHY, Circuit Judge.

text:
    Christopher Dineaa BAHTUOH, Petitioner-Appellant v. Michelle SMITH, Warden, Respondent-Appellee
    No. 16-2279
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 10, 2017
    Filed: April 28, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Frederick J. Goetz, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee and appeared on the brief was Elizabeth Roosevelt Johnston, of Minneapolis, MN.
    Before LOKEN, MURPHY, and BENTON, Circuit Judges.
   MURPHY, Circuit Judge.

Christopher Bahtuoh participated in a drive by shooting and was convicted in state court of first degree felony murder. After unsuccessfully seeking state postcon-viction relief, he brought this federal habe-as action under 28 U.S.C. § 2254. He claims that his defense counsel provided ineffective assistance by advising him not to testify after counsel had promised the jury that he would. The district court denied habeas relief, and Bahtuoh appealed. We affirm.

I.

In April 2009 Christopher Bahtuoh was driving in a Minneapolis neighborhood with Lamont McGee, a member of the 1-9 gang. Although Bahtuoh was not a member of the gang, he had associated with 1-9 members for years. During their ride Bah-tuoh saw Kyle Parker, a member of the rival Taliban gang, standing with a few Mends. Bahtuoh knew Parker from school and turned his car around to speak with him. When Parker spotted the car approaching, he told his Mends that it was only Fat Chris, a nobody. Bahtuoh stopped his car by Parker, and McGee pulled out a gun and fired into Parker’s chest. The shots killed Parker, and Bahtuoh sped away. Bahtuoh then dropped off McGee and went into hiding himself.

Approximately six weeks later, Bahtuoh surrendered to the police with the assistance of his lawyer. He initially denied that he or his car had been at the scene of the murder, but in a later interview admitted Parker had been shot from his car. After the state filed its complaint against him, Bahtuoh explained to the grand jury that on the night in question he had been hanging out with a group of Mends when shots were fired from a car driving by. The group fled to nearby cars, and Bahtuoh got into his along with McGee. Shortly after the two drove away, Bahtuoh saw Parker flagging him down. Then he turned his car around, stopped next to Parker and asked “what’s up?” According to Bahtuoh, he “didn’t see [McGee’s] gun until it was ... already standing out the window,” right before McGee shot Parker. The grand jury indicted Bahtuoh on multiple counts of first and second degree murder.

The case was tried to a jury. Before trial Bahtuoh and his attorney decided that he should testify on his own behalf, and defense counsel told the jury during opening statements that Bahtuoh would waive his right to remain silent and testify. Defense counsel predicted that Bahtuoh would explain how he and Parker were acquaintances from college, that he was not very familiar with McGee, and why he had believed that McGee was not armed. After going over Bahtuoh’s testimony with the jury, defense counsel asked the jurors “to keep an open mind” until Bahtuoh took the stand and explained what had actually happened on the day of the killing.

The night before the state rested its case, defense counsel nevertheless decided to change strategy. The state had already introduced most of the evidence that defense counsel had planned for by having Bahtuoh’s grand jury testimony read into the record. Defense counsel also believed at this point that the state’s evidence was weak and that it had failed to prove its case. Counsel advised Bahtuoh not to testify, and Bahtuoh took the advice. The defense therefore rested immediately after the state, without introducing any evidence of its own.

During closing arguments, defense counsel addressed his change in strategy, explaining that it was his fault that Bahtuoh had not testified and that he had decided not to put Bahtuoh on the stand because “the government didn’t prove their case and his truthful story came across in his grand jury testimony.” Defense counsel’s prediction about the strength of the government’s case proved only partially correct, however. The jury acquitted Bahtuoh of first degree premeditated murder, but convicted him of first degree felony murder, where the underlying felony was a drive by shooting, and second degree murder, both for the benefit of a gang.

Bahtuoh appealed and also sought state postconviction relief on the basis of ineffective assistance of counsel and other claims. The state court denied Bahtuoh postcon-viction relief. In a consolidated appeal, the Minnesota Supreme Court affirmed Bah-tuoh’s conviction and the denial of postcon-viction relief. State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013). As to Bahtuoh’s ineffective assistance of counsel claim, the court concluded that defense counsel’s advice to Bahtuoh not to testify, despite counsel’s previous statements to the jury, was not constitutionally deficient. M. at 816-18. Bahtuoh then sought habeas relief in federal court under 28 U.S.C. § 2254 on multiple grounds, including ineffective assistance of counsel. United States Magistrate Judge Jeffrey J. Keyes issued a Report and Recommendation, advising the district court to deny Bahtuoh habeas relief. The district court adopted the Report and Recommendation and issued a certificate of appealability on Bahtuoh’s ineffective assistance of counsel claim.

II.

Bahtuoh argues that the district erred by concluding that he was not entitled to habeas relief on the basis of ineffective assistance of counsel. “We review legal issues presented in a habeas petition de novo” and the district court’s “underlying factual findings for clear error.” Nunley v. Bowersox, 784 F.3d 468, 471 (8th Cir. 2015) (internal quotation marks omitted).

When, as here, a claim presented in a 28 U.S.C. § 2254 habeas petition has been adjudicated by the state court, “habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA’) only if the state court’s determination ... ‘was contrary to, or involved an unreasonable application of, clearly established Federal law ... [or] was based on an unreasonable determination of the facts.’ ” Williams v. Roper, 695 F.3d 825, 830 (8th Cir. 2012) (citation omitted) (quoting 28 U.S.C. § 2254(d)). Although Bahtuoh concedes that the Minnesota Supreme Court properly recited the governing federal law for ineffective assistance of counsel claims, he argues that the court’s decision was based on an unreasonable application of that law and an unreasonable determination of the facts. Each argument will be addressed in turn.

A.

The Supreme Court explained the standard governing ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance of counsel, a petitioner must show both that (1) his counsel’s performance was deficient, or that it “fell below an objective standard of reasonableness,” and also that (2) “the deficient performance prejudiced the defense.” Id. at 687-88, 104 S.Ct. 2052. Bahtuoh argues that the Minnesota Supreme Court unreasonably applied Strickland’s deficiency prong by concluding that it was not objectively unreasonable for defense counsel to advise Bahtuoh not to testify after having promised the jury that he would.

A federal court may grant relief under 28 U.S.C. § 2254(d)’s “unreasonable application” clause if a state court has unreasonably applied the governing legal principle to the facts of the case. Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court’s decision must be “more than incorrect or erroneous” — it “must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A decision is not objectively unreasonable if “fairminded jurists could disagree” as to its correctness. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

Establishing objective unreasonableness is particularly difficult with ineffective assistance of counsel claims. Strickland provides a deferential standard to review such claims by having courts “apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Harrington, 562 U.S. at 104, 131 S.Ct. 770 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Because this standard based on reasonable professional assistance is broad and general, courts have “more leeway [under 28 U.S.C. § 2254(d) ] ... in reaching outcomes in case-by-case determinations.” Id. at 101, 131 S.Ct. 770 (quoting Yarborough, 541 U.S. at 664, 124 S.Ct. 2140). Our review of the Minnesota Supreme Court’s application of Strickland ⅛ deficiency element to Bahtuoh’s appeal “is thus doubly deferential,” requiring a “highly deferential look at counsel’s performance through the deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (internal citation and quotation marks omitted).

Given this doubly deferential review, we cannot say that the Minnesota Supreme Court unreasonably applied Strickland here. We have previously recognized that “failing to present witnesses promised in an opening is not always an error of a constitutional dimension.” Williams v. Bowersox, 340 F.3d 667, 671-72 (8th Cir. 2003). In Williams, defense counsel changed strategy after the state had called most of the anticipated defense witnesses and counsel believed he had “beat the state’s case through his cross-examination of the state’s witnesses.” Id. at 669 (internal quotation marks omitted). In similar fashion, the Minnesota Supreme Court determined here that defense counsel’s change in strategy was reasonable in part because he had weighed the risks of the defendant not testifying “in light of new information — the strength of the State’s case — that he [had] not know[n] at the beginning of trial.” Bahtuoh, 840 N.W.2d at 817.

We have not yet had reason to apply Williams to a case in which the promised, but missing, witness was the defendant. Other courts have differed on whether it is reasonable to advise a' defendant not to testify after having promised the testimony in opening statements. Compare Ouber v. Guarino, 293 F.3d 19, 27-32 (1st Cir. 2002) (concluding defense counsel’s advice was constitutionally deficient), and Williams v. Woodford, 859 F.Supp.2d 1154, 1162-65 (E.D. Cal. 2012) (same), with Yancey v. Hall, 237 F.Supp.2d 128, 133-35 (D. Mass. 2002) (concluding defense counsel’s advice was not constitutionally deficient), and Francis v. State, 183 S.W.3d 288, 301-05 (Mo. Ct. App. 2006) (same). “This diversity of opinion alone” suggests that the Minnesota Supreme Court did not unreasonably apply Strickland in respect to Bahtuoh’s case. See Williams, 340 F.3d at 672.

Furthermore, even courts that have concluded that defense counsel provided ineffective assistance by advising a defendant not to testify after having promised otherwise have suggested that there may be instances in which such a change in strategy could be reasonable. In Ouber v. Guarino, a case relied on by Bahtuoh, the court observed that “unexpected developments sometimes may warrant changes in previously announced trial strategies.” 293 F.3d at 29. That court nevertheless concluded that there had been no such unexpected developments during the petitioner’s trial (a third attempt following two mistrials due to hung juries). Id. Another court similarly granted habeas relief after concluding that defense counsel’s “failure to present the promised testimony [could not] be chalked up to unforeseeable events.” Madrigal v. Yates, 662 F.Supp.2d 1162, 1184 (C.D. Cal. 2009).

As the Minnesota Supreme Court observed, defense counsel’s change in strategy in this case was based on unexpected developments. Through both cross examination of the government’s witnesses and the reading of Bahtuoh’s grand jury testimony, the government’s case in chief had provided defense counsel with an opportunity to expose the jury to most of the evidence he had promised during opening statements, namely, that Bahtuoh had a preexisting positive relationship with Parker and was unaware that McGee had a gun in his ear. Defense counsel also believed that the state had failed to prove its case (a belief that proved partially correct).

Given that the Minnesota Supreme Court considered these trial developments in order to assess the reasonableness of defense counsel’s change in strategy, we decline to conclude that the court’s application of Strickland was objectively unreasonable. We therefore defer to the Minnesota Supreme Court’s application of the deficiency element in Strickland's test under 28 U.S.C. § 2254(d), and need not determine whether that deficiency prejudiced Bahtuoh.

B.

Bahtuoh also argues that the Minnesota Supreme Court’s decision was based on an unreasonable determination of the facts. Specifically, he argues that the Minnesota Supreme Court unreasonably determined (1) that the weaknesses in the state’s case were unforeseen to defense counsel and (2) that defense counsel weighed the risks of Bahtuoh not testifying when he advised him not to take the stand. A state court decision is based on an unreasonable determination of the facts only if the “court’s presumptively correct factual findings do not enjoy support in the record.” Evenstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). Here, there is record support for the state court’s factual findings.

First, there is record support for its conclusion that the extent of the weaknesses in the state’s case was unforeseen to defense counsel. During cross examination of a state witness, for example, defense counsel was able to establish that Parker had signaled toward Bahtuoh, consistent with Bahtuoh’s grand jury testimony. This testimony suggested that Parker had no reason to fear Bahtuoh, and that the two were acquaintances. Defense counsel also told the jury that he no longer had to put Bahtuoh on the stand after the prosecution introduced Bahtuoh’s grand jury testimony, “which he gave under oath ... [and] exonerate^] him.” Finally, Bahtuoh testified at the postconviction hearing that defense counsel told Bahtuoh that he had decided to change strategy and not have him testify because “the State did not prove their case and [Bahtuoh] won.” Counsel’s statements to the jury and Bah-tuoh support the Minnesota Supreme Court’s determination that the weaknesses in the state’s case had been unforeseen by him. Defense counsel’s prediction about the strength of the state’s case proved to be partially correct since the jury acquitted Bahtuoh of the most serious charged offense (first degree premeditated murder).

There is also record support for the Minnesota Supreme Court’s determination that defense counsel weighed the risks if Bahtuoh were not to testify. During the colloquy in which Bahtuoh informed the court of his decision, defense counsel stated that he and Bahtuoh had discussed a defendant’s right to testify on “several occasions” and the “pros and cons” of waiving that right. Bahtuoh did not indicate that defense counsel’s representation was inaccurate; rather, he affirmatively agreed with counsel’s characterization of their pri- or conversations. Further, Bahtuoh failed to develop a record before the state court that would compel a contrary factual finding, as shown in part by his decision not to call defense counsel as a witness to explain his decision during the postconviction evi-dentiary hearing. The Minnesota Supreme Court’s determination that counsel did weigh the risks of Bahtuoh not testifying was therefore not based on an unreasonable determination of the facts and is entitled to deference under 28 U.S.C. § 2254(d).

III.

For these reasons, we affirm the district court’s denial of Bahtuoh’s 28 U.S.C. § 2254 habeas petition.

      . The Honorable David S. Doty, United States District Judge for the District of Minnesota.

      . The Minnesota Supreme Court seemed to suggest that because defense counsel's decision was "strategic” it must have been reasonable, see Bahtuoh, 840 N.W.2d at 818 n.3, which would have been contrary to Strickland 's command that although strategic decision are “virtually unchallengeable,” they are not completely unchallengeable, see Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. On reviewing the Minnesota Supreme Court’s decision as a whole, however, it is clear that the court did actually analyze the reasonableness of defense counsel’s strategic decision to advise Bahtuoh not to testify. The court therefore did not impermissibly treat that decision as unreviewable.


text:
    HUDSON ENTERPRISES, INC., doing business as River Valley Marina, Plaintiff-Appellant v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON INSURANCE COMPANIES, Subscribing to Policy #10NCG01559 and Agreement Numbers NPPI1011456 and NPPI09112456, Defendant-Appellee
    No. 16-2846
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 5, 2017
    Filed: April 28, 2017

      Counsel who presented argument on behalf of the appellant was John Ogles, of Jacksonville, AR. Gregory D. Taylor, of Benton, AR. The following attorney(s) appeared on the appellant brief: Gregory D. Taylor, of Benton, AR.
    Counsel who presented argument on behalf of the appellee was Gregory L Mast, of Atlanta, GA. The following attorney(s) appeared on the appellee brief; David D. Wilson, of Little Rock, AR., Paul Lindsey Fields, Jr., of Atlanta, GA.
    Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
   MURPHY, Circuit Judge.

On the night of April 30, 2011 a storm generated strong winds and left seven inches of rain in the Little Maumelle River basin. The River Valley Marina lost five of its docks to the storm. The docks were covered by an insurance policy issued by Certain Underwriters at Lloyd’s London Insurance Companies (Underwriters) which excluded losses “caused directly or indirectly” by flood. Underwriters denied coverage based on the flood exclusion. The marina then filed this action against Underwriters, alleging that they breached the policy. The district court granted Underwriters summary judgment after concluding that the docks were lost to flood. Hudson appeals, and we affirm.

I.

Ray and Debra Hudson own Hudson Enterprises, which operates the River Valley Marina. The marina owns eight docks on the north bank of the Little Maumelle River in Little Rock, Arkansas. The Little Maumelle River runs west to east until it converges with the Arkansas River. The marina is located approximately two miles above the Little Maumelle’s confluence with the Arkansas River.

On the night of April 30, 2011 approximately seven inches of rain ^ell in the Little Maumelle watershed. Several area residents testified that the river rose at least three feet above its normal levels and exceeded its banks in some places. Photos indicate that there was standing water in the parking lot near one of the marina’s docks the next day. The rain also greatly increased the speed of the river’s current. In addition to rain, the storm brought with it high winds that tore down tree branches near the marina.

The marina lost five of its eight docks to the storm. The three docks that survived the storm were located upstream from the docks that were swept away. The marina was covered by an insurance policy issued by Underwriters. After the storm, the marina contacted Underwriters to obtain compensation for the loss. Its policy insured the marina against “direct physical loss of or damage to” its eight docks. The policy contained an exclusion, however, which stated:

We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage affecting a substantial area, or remains localized — even when restricted to the insured premises.
4. Water — (a) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not; ....

A few days after the storm, Underwriters sent an adjuster to take photographs of the marina and talk to the Hudsons. Mr. Hudson told the adjuster that the “[t]he velocity of that water” caused the damage to the docks. Underwriters denied coverage after finding that the loss was caused by “a flash flood that occurred on the Little Maumelle River following heavy rains.” The Hudsons later came to believe, however, that a utility pole caused their loss when it fell onto the docks as a result of the storm’s high winds.

Hudson Enterprises (Hudson) filed this action against Underwriters in state court. Underwriters removed the case to federal court. During discovery, Hudson served an interrogatory on Underwriters that stated, “In the course of your investigation of the facts and circumstances forming the basis for the claim for benefits tendered by Plaintiff ... did you obtain any expert opinion relating to your determination to deny payment of such claim?” Underwriters answered on November 16, 2015 by stating “discovery is ongoing and [Underwriters] have not yet made a determination as to whether an expert witness may testify at trial.” The answer then indicated “[i]f Underwriters decide to have a testifying expert, Underwriters will identify said expert(s) in accordance with the Federal Rules of Civil Procedure.”

The district court entered a case scheduling order which required Underwriters to “identify all expert witnesses and produce their opinions by 27 January 2016.” Underwriters disclosed their civil engineering expert to Hudson on January 27, 2016. The expert concluded that the flash flood was the sole cause of Hudson’s loss and rejected Hudson’s utility pole hypothesis. Hudson objected to Underwriters’ expert and asked that his opinions be stricken because the expert had been disclosed too late and because Underwriters had not supplemented their interrogatory answer after retaining him. At the hearing on Hudson’s motion to strike, counsel for Underwriters stated that he had first contacted the expert on December 18 and had not received a draft expert report until the last week of January. The district court denied the motion to strike.

The parties later filed cross motions for summary judgment. The district court denied Hudson’s motion and granted that of Underwriters. The court concluded that there was no genuine issue of material fact regarding whether or not a flood had caused the damage to Hudson’s docks and that the policy exclusion therefore applied. Hudson appeals, arguing that the district court abused its discretion by refusing to strike the. report and opinions of the Underwriters expert and erred by granting their motion for summary judgment.

II.

Hudson argues that the district court abused its discretion when it refused to strike Underwriters’ expert report and opinions. We review a district court’s “discovery rulings in a manner both narrow and deferential, and reversal is only warranted if an erroneous ruling amounted to a gross abuse of discretion.” Robinson v. Potter, 453 F.3d 990, 994-95 (8th Cir. 2006) (internal quotation marks omitted). Hudson appears to argue that Underwriters disclosed their expert in an untimely fashion. A party must disclose expert testimony “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Underwriters thus complied with the Federal Rules of Civil Procedure by disclosing their expert on the last day allowed by the scheduling order.

Hudson also argues that the district court should have stricken the expert report for Underwriters because they did not supplement their interrogatory answers in a timely fashion after they had secured their expert. A party that has responded to an interrogatory “must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1). Hudson’s interrogatory asked Underwriters if they had obtained “any expert opinion relating to your determination to deny payment of such claim.” In November 2015 Underwriters responded that “they have not yet made a determination as to whether an expert witness may testify at trial.” Underwriters counsel did not receive draft expert reports until the last week of January. On January 27, Underwriters disclosed to Hudson the reports and opinions of their two expert witnesses. Because only a few days had passed at most between when Underwriters obtained their expert’s opinion and disclosed it to Hudson, we cannot conclude that the district court grossly abused its discretion by denying Hudson’s motion to strike.

III.

Hudson argues that the district court erred by granting Underwriters summary judgment. We review a district court’s “grant of summary judgment de novo and consider the facts in the light most favorable to the nonmoving party.” Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981, 985 (8th Cir. 2016). A district court’s grant of “[s]ummary judgment is only appropriate when ‘there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Pinson v. 45 Dev., LLC, 758 F.3d 948, 951-52 (8th Cir. 2014)). We review de novo questions of contract interpretation. Anderson v. Hess Corp., 649 F.3d 891, 896 (8th Cir. 2011). It is undisputed that Arkansas law applies to this diversity action. See Emp’rs Reinsurance Co. v. Mass. Mut. Life Ins. Co., 654 F.3d 782, 789 (8th Cir. 2011).

Hudson first argues that the term “flood” in the exclusion to the insurance contract is ambiguous. In Arkansas, “the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer.” Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307, 310 (1993). If policy language is ambiguous, “and it is fairly susceptible of two or more interpretations, one favorable to the insured and the other favorable to the insurer, the one favorable to the insured will be adopted.” Id.

Hudson claims that the term “flood” is ambiguous because it is not defined in the policy. An undefined term in an insurance policy, however, is not automatically ambiguous. Essex Ins. Co. v. Holder, 370 Ark. 465, S.W.3d 456, 458 (2007). Moreover, the Arkansas Court of Appeals has concluded that an identically worded policy exclusion is unambiguous. Ebbing v. State Farm Fire & Cas. Co., 67 Ark. App. 381, 1 S.W.3d 459, 461-62 (1999). Ebbing defined “flood waters” as “those waters above the highest line of the ordinary flow of a stream, and generally speaking they have overflowed a river, stream, or natural water course and have formed a continuous body with the water flowing in the ordinary channel.” Id. at 462 (quoting Ferndale v. Great Am. Ins. Co., 34 Colo.App. 258, 527 P.2d 939, 940 (1974)). Although only decisions from a state’s highest court control our interpretation of state law, Hudson has not provided any reason why Ebbing is not predictive of how the Arkansas Supreme Court would rule on this issue. See Pinson, 758 F.3d at 952. We therefore conclude that the term “flood” in this insurance contract is unambiguous and adopt the definition of “flood” given in Ebbing.

Hudson next argues that there is a genuine issue of material fact as to whether the damage to the docks occurred as the result of a flood. Hudson claims that strong winds were the sole cause of its damages here because they caused a utility pole to crash into its docks. In support of this claim, Hudson relies on the testimony of several area residents that the storm on April 30 and May 1 involved very strong winds that knocked down tree limbs. Hudson also submitted evidence that the winds were gusting at 40 miles per hour during the storm. Hudson finally relies on a photograph that shows a downed utility pole lying on one of the marina docks.

Underwriters’ civil engineering expert rejected Hudson’s utility pole hypothesis. Its expert concluded that the utility pole had not fallen down as the result.of wind because it would have taken wind gusts of more than 200 miles per hour to knock down a utility pole of that size. The expert also concluded that even if the wind had caused the pole to fall, the impact could not have caused the structural damage to the docks. In light of this expert report, Hudson’s submission of lay testimony that the storm generated strong wind gusts and a photograph of the downed utility pole did not create a genuine issue of material fact as to whether wind or flood caused the damage to the docks.

Hudson alternatively argues that the damage here was not caused by a “flood” but rather by strong “current within the banks of’ the Little Maumelle River. There is however no genuine issue of material fact that the storm on the night of April 30 caused the waters of the Little Maumelle to rise “above the highest line of the ordinary flow” of the river. See Ebbing, 1 S.W.3d at 462 (quoting Ferndale, 527 P.2d at 940). Several lay witnesses testified that the storm caused the river to rise at least three feet above its ordinary flow level. Moreover, both parties agree that the storm caused the river to overflow its banks and left standing water in a parking lot near one of the marina’s docks. The facts show that the rain event on the night of April 30 created a flood on the Little Maumelle River.

There is also no genuine issue of material fact that the force generated from the flood waters directly or indirectly caused the damage to the marina’s docks. The Underwriters expert opined that at the time of the storm, the river’s current would have exerted at least 75,000 pounds of hydrodynamic force on the docks. The expert further stated that 75,000 pounds was “much more than enough force” to cause the damage to the marina because the cables securing the docks to the riverbank were only rated for 14,400 pounds of force. Hudson’s argument that the damage was the result of a strong current within the banks of the Little Maumelle River does not defeat summary judgment because this damage was caused by the strong current in waters which were “above the highest line of the ordinary flow” of the river. See Ebbing, 1 S.W.3d at 462 (quoting Ferndale, 527 P.2d at 940). At the very least, the flood indirectly caused the damage to the marina.

IV.

For the reasons stated above, we affirm the district court.

      . The Honorable D.P. Marshall Jr., United States District Judge for the Eastern District of Arkansas.