City of Pontiac General Employees' Retirement System v. Lockheed Martin Corp.

954 F. Supp. 2d 276, 2013 WL 3796658, 2013 U.S. Dist. LEXIS 102807
District Court, S.D. New York·Decided July 23, 2013·No. No. 11 Civ. 5026(JSR)·Published·Cited by 3 cases

Opinion

ORDER APPROVING CLASS ACTION SETTLEMENT

JED S. RAKOFF, District Judge.

By Order dated March 27, 2013, the Court preliminarily approved the parties’ proposed settlement in the above-captioned case and established procedures for notifying potential settlement class members of the settlement, as well as for allowing class members to object to the settlement’s terms. Pending now before the Court is the lead plaintiffs subsequent motion for (1) final approval of the settlement, (2) approval of the plan of distribution of settlement proceeds, and (3) an award of attorneys’ fees, attorneys’ expenses, and lead plaintiffs expenses. Full familiarity with all prior proceedings in this case is here presumed.

After full review of the parties’ written submissions and oral arguments, as well as the correspondence sent to the Court by would-be objectors Daniel Himmel and James Clem, see ECF No. 136, the Court finds that the proposed settlement is fair, reasonable, and adequate, and grants the [279]*279final approval of the parties’ settlement. The Court also awards certain attorneys’ fees, attorneys’ expenses, and lead plaintiffs expenses, although not in the full amounts requested.

The settlement here is for $19.5 million, and was “reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir.2005). It still cannot be approved, however, unless it is fair, reasonable, and adequate. See Fed.R.Civ.P. 23(e)(2). In the Second Circuit, a determination of whether such a settlement is fair, reasonable, and adequate requires a consideration of the nine “Grinnell” factors, see City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974), abrogated on other grounds, Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000), to wit: “(1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness of the settlement fund in light of the best possible recovery, and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.” Grinnell, 495 F.2d at 463.

As to the first factor, there is no doubt that this litigation has been complex, and its remaining phases would likely be both hard-fought and expensive. The parties have already presented the Court with complicated and challenging motions, and if the case were to proceed to trial, the additional expense of expert reports, possible pre- and post-trial motion practice, and a possible appeal would delay, and materially increase the already-considerable expense of, any eventual recovery.

As to the second factor, notwithstanding that more than 62,000 notices were mailed and publication of the proposed settlement appeared in national publications, not a single class member objected to the settlement.1

As to the third factor, the proposed settlement was negotiated after extensive discovery, motion practice, and several hearings before the Court.

As to the fourth factor, the numerous and complex issues of law and fact presented in the parties’ motion practice make evident that plaintiffs face substantial risks in establishing liability.

As to the fifth factor, the reasons for the decline in the price of Lockheed shares, on which plaintiffs damages calculation is based, are controversial and controverted, presenting a substantial risk that plaintiffs’ damages calculation would not prevail in the end.

As to the sixth factor, given that the defendants vigorously contested plaintiffs motion to certify the class, it is not unlikely that, if the case continued, the defendants would continue to try to find infirmities with the class.

As to the seventh factor, while it is undoubtedly true that Lockheed could withstand a judgment of more than $19.5 million, the lawsuit would have to be much [280]*280stronger than this one appears to be to make this a significant factor.

As to the eighth factor, while the recovery represents only approximately 10% of the plaintiffs best-case damages model, it is unlikely that, if the case were to go to trial, plaintiff would recover its best-case model.

As to the ninth factor, given the weaknesses in plaintiffs case, the proposed settlement is well within the range of reasonable outcomes.

In short, all or nearly all of the Grinnell factors weigh in favor of approval Of the settlement, and the Court therefore approves it.

Turning to attorneys’ fees, plaintiffs counsel seeks an award of 33% of the settlement fund, as well as $1, 000, 000 to cover its expenses in bringing this action. The determination of what is a reasonable attorneys’ fee in this context is guided by the factors set forth by the Second Circuit in Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir.2000). These factors are: “(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation ...; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations.” Id. While it is the analysis of these six factors that ultimately under-girds the Court’s fee award, two methods of determining reasonable fee awards can be used as heuristics, though neither is dispositive: a) the so-called “lodestar” method, “under which the district court scrutinizes the fee petition to ascertain the number of hours reasonably billed to the class and then multiplies that figure by an appropriate hourly rate,” and b) the “simpler” method of “set[ting] some percentage of the recovery as a fee.” See id. at 47. However, “[i]t bears emphasis that whether calculated pursuant to the lodestar or the percentage method, the fees awarded in common fund cases may not exceed what is ‘reasonable’ under the circumstances.” Id.

Here, while the “lodestar” method arguably supports plaintiffs counsel’s percentage request, closer analysis raises some questions. For example, plaintiffs counsel included in the calculation some 3,323.15 hours of work by so-called “contract attorneys,” billed at rates ranging from $295 to $435 for tasks that consisted largely of document review. See Tr. of June 4, 2013, at 11-12. While the use of “contract” attorneys is not suspect per se,

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City of Pontiac General Employees' Retirement System v. Lockheed Martin Corp., 954 F. Supp. 2d 276, 2013 WL 3796658, 2013 U.S. Dist. LEXIS 102807 (S.D.N.Y. 2013).

954 F. Supp. 2d 276 (City of Pontiac General Employees' Retirement System v. Lockheed Martin Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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