Goldstein v. Forbes

260 F.3d 183, 2001 WL 893393
CourtCourt of Appeals for the Third Circuit
DecidedAugust 8, 2001
DocketNo. 99-5485
StatusPublished
Cited by2 cases

This text of 260 F.3d 183 (Goldstein v. Forbes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldstein v. Forbes, 260 F.3d 183, 2001 WL 893393 (3d Cir. 2001).

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge.

This appeal raises important questions concerning the use of sealed bids in auctions conducted to select lead counsel in class action lawsuits. The genesis of the appeal lies in the District Court’s selection of lead counsel in the Cendant “PRIDES” securities litigation based on the results of a competitive bidding process. The core of the dispute involves a confidentiality order in which the District Court decided to seal the bids until resolution of the case. The order was issued in connection with an in camera hearing where plaintiffs’ attorneys, but not the general public, had access to the bids. After learning that one of the unsuccessful bidding attorneys, Howard Sirota, had spoken to a reporter from the New York Times about the bidding process, the District Court fined Siro-ta $1,000. Sirota appeals the sanction. Because we conclude that the District Court failed to articulate the necessary findings for the issuance of the confidentiality order, and because we find that, in any case, Sirota did not violate the order, we will vacate the sanction.1

[188]*188I.

Some explanation of the underlying securities litigation provides a helpful background for the proceeding resulting in the sanction against Sirota. Because a full procedural and factual background of the Cendant litigation is set forth in numerous published opinions,2 we will only discuss the facts most relevant to the resolution of the issues presented in this appeal. Briefly, on April 15, 1998, Cendant Corporation announced that it had uncovered substantial accounting irregularities and would have to restate reported annual and quarterly earnings for 1997 and possibly earlier; as a result, Cendant stock plummeted 46%. Some 64 lawsuits (mostly class actions) were filed against Cendant, its officers and directors; all but one were consolidated.

On May 29, 1998, a preliminary case management/ scheduling order established a schedule for motions to address the appointment of lead counsel for the class. Among the fifteen motions filed was one submitted by Sirota, together with co-counsel John J. Barry and Charles C. Car-ella, to have their clients, the Joanne A. Aboff Family Trust (“Aboff’) and Douglass Wilson, appointed as lead plaintiffs and to have themselves appointed lead counsel.

After considering the motions, the District Court outlined a process for selecting lead plaintiff and lead counsel. First, the District Court applied a statutory presumption that the plaintiff with the largest financial interest in the litigation should be appointed lead plaintiff. See In re Cendant Corp. Litig., 182 F.R.D. 144, 146-47 (D.N.J.1998) (citing 15 U.S.C. § 77z-1(a)(3)(B)). Because of a possible conflict of interest, the District Court determined that a separate lead plaintiff would be appointed to pursue claims involving Income and Growth Prides (“PRIDES”), derivative securities based on Cendant common stock.3 See id. at 149-50. Neither Aboff nor Wilson was selected as a lead plaintiff.

Second, in selecting lead counsel, the District Court adopted a competitive bidding system, reasoning that “the most effective way to establish reasonable attorney fees is through marketplace ... competition.” Id. at 150. The District Court therefore ordered “an auction to determine the lowest qualified bidder to represent the class as counsel.” Id. at 151. To be considered, plaintiffs’ attorneys were required to submit bids under seal, stating, among other things, their professional qualifications and the fee arrangement that would be acceptable to them should they be selected as lead counsel. The record as of this date reveals that all bids remain under seal.

[189]*189On October 2, 1998, the District Court selected separate lead counsel for the non-PRIDES claims and for the PRIDES claims; Sirota and his co-counsel were not selected. In choosing lead counsel, the District Court stressed the need for confidentiality. Following an in camera hearing, attended only by applicants for the two lead counsel positions, ie., plaintiffs’ attorneys, the court distributed an opinion containing a confidentiality order. The court ordered the identities of the bidders and the nature of their proposals sealed until the conclusion of the case, referring to the proposals only by number and explaining:

It is of utmost concern to the Court that this opinion, the bidders’ identities and the contents of their bids be sealed until resolution of this matter. This is done to maintain adversarial integrity, that of strategy and tactics, which is the prerogative of all parties, plaintiffs and defendants.

In re Cendant Corp. Litig., 191 F.R.D. 387, 387 (D.N.J.1998) (opinion selecting lead counsel). As a result of the in camera hearing and the confidentiality order, plaintiffs’ attorneys, but not the general public, had access to each others’ bids.

Thereafter, on November 30, 1998, the District Court separated the PRIDES claims from the rest of the Cendant case. In an order entered on March 18, 1999, the District Court preliminarily approved a proposed settlement of the PRIDES case presented by lead counsel and Cendant. The proposed settlement provided that, in return for dismissal and release of all claims, Cendant would confer upon each class member who opted in, one “Right” worth $11.71 for each PRIDES held at the close of business on April 15, 1998, giving the settlement an aggregate theoretical value of $341.5 million. The March 18, 1999 order also approved the “form and content” of notice to be distributed to class members regarding the settlement. That notice stated that lead counsel would apply for attorneys’ fees, to be paid in Rights, in an amount not to exceed 10% of the $341.5 million theoretical value of the settlement. To this effect, the notice contained the following assurance:

You also should know that the lead counsel appointment process included a court-mandated bidding process. This was intended to assure that the largest possible portion of any recovery remained with participating class members, or conversely that qualified lead counsel took the least possible sums from the benefits to be obtained by participating class members. In Lead Counsel’s view, under the fee mechanism proposed by Lead Counsel and described herein, there is a substantial likelihood that a substantial part, if not all, of the fees sought will be obtained from Unclaimed Rights and Opt Out Rights. As a consequence, in Lead Counsel’s view, those Class Members who become Authorized Claimants will not have to pay any of Lead Counsel’s fees, or if they do, there is a substantial likelihood that it will be less than the amount otherwise payable under the bids approved by the Court in the process of appointing lead counsel.

In re Cendant Corp. Prides Litig., No. 98-2819, slip op. at -(D.N.J. Mar. 18, 1999) (emphasis added) (order regarding proposed class action settlement, settlement hearing and notice of proposed settlement).

Besides preliminary approval and notice, the order of March 18, 1999 also provided that any class member wishing to object to the settlement or to the lead counsel’s fee application should file written objections with the District Court. On May 4, 1999, Sirota, along with co-counsel, filed objec

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260 F.3d 183, 2001 WL 893393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-forbes-ca3-2001.