In re Bausch & Lomb, Inc. Securities Litigation

183 F.R.D. 78, 1998 WL 758399
CourtDistrict Court, W.D. New York
DecidedOctober 28, 1998
DocketNo. 94-CV-6270L
StatusPublished
Cited by12 cases

This text of 183 F.R.D. 78 (In re Bausch & Lomb, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bausch & Lomb, Inc. Securities Litigation, 183 F.R.D. 78, 1998 WL 758399 (W.D.N.Y. 1998).

Opinion

DECISION AND ORDER

LARIMER, District Judge.

INTRODUCTION

Plaintiffs commenced this securities fraud class action on June 6, 1994 against Bausch & Lomb, Inc. (“B & L”) and five individuals, all of whom are or were officers of B & L. The gist of plaintiffs’ claims was that defendants had for some time artificially inflated B & L’s stock price by concealing from the public certain financial problems that it was undergoing, and that when the truth was finally revealed, B & L’s stock price dropped, causing investors to lose money.

After the complaint had been .amended several times, defendants moved to dismiss in late January 1996. I denied that motion in a Decision and Order entered on October 24, 1996.

Not long thereafter, the parties began to engage in settlement discussions. Those negotiations eventually bore fruit, and on April 17, 1998, the parties filed a stipulation and agreement of compromise and settlement, providing for payment of $42 million to plaintiffs. On July 16, 1998, the court held a hearing on the parties’ joint application for approval of the settlement and plaintiffs’ attorneys’ request for an award of attorneys’ fees in the amount of $12.6 million and costs of over $608,000. Those applications are now pending before me.

TERMS OF THE SETTLEMENT

The settlement agreement itself comprises over thirty pages of text, plus an additional forty-eight pages of exhibits, but the salient aspects of the agreement are as follows. Defendants have agreed to pay a settlement fund of $42 million (“the fund”) to plaintiffs in exchange for dismissal of plaintiffs’ claims. Seventy-five percent of the fund is to be allocated to “Class I,” which consists of plaintiffs who purchased B & L stock between December 14, 1993 and June 3, 1994. The other twenty-five percent is to be allocated to “Class II,” which is made up of plaintiffs who purchased B & L stock between June 4,1994 and January 25, 1995. The fund -is to be distributed among individual class members in accordance with one of several mathematical formulas, the details of which need not be set forth here, but which are intended to effectuate a pro rata distribution of the fund.

The agreement also provides a procedure by which any class member who has not opted out can submit a proof of claim. The claims are then to be reviewed by an independent settlement administrator, who will determine the extent to which each claim will be allowed, subject to appeal to this court.

The agreement further provides that plaintiffs’ counsel may seek an award of attorneys’ fees in an amount not to exceed one-third of the fund, plus counsel’s actual out-of-pocket costs. Any fees and disbursements awarded by the court are to be paid out of the fund.

Pursuant to this court’s Implementing Preliminary Approval Order entered on April 17, 1998, 1862 envelopes, each containing a notice and proof of claim form, were mailed to known class members, advising them of the proposed settlement. In response to inquiries from potential class members, an additional 4404 such envelopes were mailed. A notice was also published in the May 20,1998 Wall Street Journal. Affidavit of Cheryl [81]*81Washington, Sworn to June 15, 1998, Hit 3, 5, 6.

My April 17 order also provided that any objections to the terms of the settlement had to be filed with the court no later than fifteen business days prior to the July 16 hearing. None were received either before or after that date, and no one appeared at the hearing to object to the settlement. Counsel also informed the court at the July 16 hearing that only six class members had opted out.

DISCUSSION

I. Settlement of Plaintiffs’ Claims

Rule 23(e) of the Federal Rules of Civil Procedure provides that no class action may be dismissed without the approval of the court. Among the factors that the court should consider in deciding whether to approve a proposed settlement of a class action are: “(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 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 ____” County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323-24 (2d Cir.1990); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (“Grinnell I"); Chatelain v. Prudential-Bache Securities, Inc., 805 F.Supp. 209, 213 (S.D.N.Y.1992).

Having considered these factors in the case at bar, I conclude that the settlement of plaintiffs’ claims (as distinguished from the application for attorneys’ fees, which is discussed below) should be approved. Although as securities fraud cases go this one may not have been particularly complex, these types of cases are by their nature relatively complicated matters, and the litigation here would likely have consumed considerable time and money.

The reaction of the class strongly points in favor of approval of the settlement. As noted, not a single class member has objected to the proposed settlement, and only six have opted out.

The third factor — the stage of the proceedings and the amount of 'discovery completed — is relevant in two ways. First, there should have been enough discovery to present the court with sufficient information upon which to determine whether the settlement should be approved. At the same time, however, part of the reason that settlements are looked upon with favor is that they allow the parties to avoid engaging in protracted, costly discovery. Thus, “[b]ecause much of the point of settling is to avoid litigation expenses such as full discovery, ‘it would be inconsistent with the salutary purposes of settlement,’ to find that ‘extensive pre-trial discovery is a prerequisite to approval’ of a settlement.” Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y.1998) (quoting Handschu v. Special Servs. Div., 787 F.2d 828, 834 (2d Cir.1986), and Plummer v. Chemical Bank, 668 F.2d 654, 660 (2d Cir. 1982)).

In the instant case, there has been some discovery, but procedurally the case remains in its early stages. I believe that enough evidence has been produced, however, to provide a basis for determining whether the settlement should be approved. I also believe that settlement at this juncture will also avoid what would undoubtedly be extensive further discovery were this litigation to continue.

The attendant risks involved in this case— of establishing liability, damages, and maintaining the class throughout the trial — are also significant for both sides. As- indicated by my prior decision denying defendants’ motion to dismiss, plaintiffs have adduced some evidence in support of their claims, and if liability were established, the amount of damages could be substantial.

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Bluebook (online)
183 F.R.D. 78, 1998 WL 758399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bausch-lomb-inc-securities-litigation-nywd-1998.