In re Citigroup Inc. Bond Litigation

988 F. Supp. 2d 371, 2013 WL 6697822, 2013 U.S. Dist. LEXIS 178436
District Court, S.D. New York·Decided December 19, 2013·No. No. 08 Civ. 9522(SHS)·Published·Cited by 6 cases

Opinion

OPINION & ORDER

SIDNEY H. STEIN, District Judge.

In August, this Court approved the settlement of this securities class action, which was brought on behalf of a class of purchasers of bonds issued by or on behalf of Citigroup, Inc. and raised claims pursuant to the Securities Act of 1933. Plaintiffs agreed to settle all claims in exchange for a payment of $730 million — an agreement that the Court found to be fair, reasonable, and adequate. See generally In re Citigroup Inc. Bond Litig., 296 F.R.D. 147 (S.D.N.Y.2013). Plaintiffs’ attorneys, Bernstein Litowitz Berger & Grossman LLP, seek an award of attorneys’ fees and reimbursement of litigation expenses pursuant to Federal Rule of Civil Procedure 23(h), as well as reimbursement of costs and expenses incurred by class representatives pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4. The Court has reviewed Bernstein Litowitz’s request and finds that it is entitled to both an award of reasonable attorneys’ fees and reimbursement of litigation expenses. The Court also awards reasonable costs and expenses for services rendered to the class by the lead plaintiffs.

I. Fee Award

Rule 23(h) permits the Court to award reasonable attorneys’ fees in a certified class action. Indeed, the U.S. Supreme Court has long recognized that “a lawyer who recovers a common fund for the benefit of persons other than himself or his [373] client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); see also, e.g., In re Am. Bank Note Holographics, Inc., 127 F.Supp.2d 418, 430 (S.D.N.Y.2001) (“[A]ttorneys who create a common fund to be shared by a class are entitled to an award of fees and expenses from that fund as compensation for their work.”). Class counsel Bernstein Litowitz has moved for such an award here, seeking 20% of the common fund, or $146 million, plus interest.

Although the firm is certainly deserving of an award for its efforts in this litigation — for which it has yet to receive compensation — the Court finds the requested percentage too high given the significant size of the fund. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 123 (2d Cir.2005) (noting that the “sheer size” of a fund made “a smaller percentage” award appropriate because it nonetheless produced a “generous fee”). For the reasons explained below, the Court instead finds reasonable an award of attorneys’ fees of 16% of the settlement amount, or $116.8 million. To ensure the fairness of this percentage, the Court performs a “cross-check,” comparing the amount of the award to the approximate market value of plaintiffs’ attorneys’ work-known as the lodestar figure — to ensure that the percentage of the fund method yields appropriate compensation without resulting in a windfall for plaintiffs’ attorneys. See id. Finally, the Court confirms the reasonableness of the fee determined by the percentage of the fund method and bolstered by the cross-check by examining the factors set forth by the U.S. Court of Appeals for the Second Circuit in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir.2000).

In performing this analysis, the Court takes into account an objection submitted by class members Lexie and Michelle Hop-son.1 (See Objection of Lexie and Michelle Hopson dated June 24, 2013, Dkt. No. 165.) The Hopson Objection argues in salient part that the requested percentage of the common fund is too high for a settlement of this magnitude and that the proposed billing rates for staff attorneys exceed what a reasonable client would pay. The Court has the same concerns.

A. The Percentage of the Fund Method

As this Court recently observed, “using the percentage of the fund method to compensate plaintiffs’ counsel in major securities fraud class actions is now firmly entrenched in the jurisprudence of this Circuit.” In re Citigroup Inc. Sec. Litig., 965 F.Supp.2d 369, 388, Nos. 09 MD 2070(SHS), 07 Civ. 9901(SHS), 2013 WL 3942951, at *15 (S.D.N.Y. Aug. 1, 2013). Use of this method is supported by the language of the PSLRA, which mandates that “[tjotal attorneys’ fees and expenses awarded by the court to counsel for the plaintiff class shall not exceed a reasonable percentage of the amount of any damages ... actually paid to the class.” 15 U.S.C. § 78u-4(a)(6). The Court therefore allocates fees to plaintiffs’ counsel by determining an award that constitutes a reasonable percentage of the common fund.

Plaintiffs’ counsel, as noted, contend that an award of 20% of the common fund represents such a reasonable percentage. In support of this request, they point to a [374] number of cases with significant recoveries in which courts awarded attorneys’ fees of between 17% and 33% of the common fund. See, e.g., In re Converse Tech Inc. Sec. Litig., No. 06 Civ. 1825(NGG)(RER), 2010 WL 2653354, at *6 (S.D.N.Y. June 24, 2010) (awarding attorneys’ fees of 25% of $225 million settlement); In re Initial Public Offering Sec. Litig., 671 F.Supp.2d 467, 513-16 (S.D.N.Y.2009) (awarding attorneys’ fees of 33% of $586 million settlement); In re Adelphia Commc’ns Corp. Sec. and Derivative Litig., No. 03 MD 1526(LMM), 2006 WL 3378705, at *3 (S.D.N.Y. Nov. 16, 2006), aff'd 272 Fed.Appx. 9 (2d Cir.2008) (awarding attorneys’ fees of 21.4% of $455 million settlement); In re Cardinal Health, Inc. Sec. Litig., 528 F.Supp.2d 752, 754-55 (S.D.Ohio 2007) (awarding attorneys’ fees of 18% of $600 million settlement); In re Lucent Tech, Inc. Sec. Litig., 327 F.Supp.2d 426, 433, 442 (D.N.J.2004) (awarding attorneys’ fees of 17% of $517 million settlement). They also note that all lead plaintiffs2 — seven of which are institutional investors — approved the fee application and that a fee of 20% of the common fund is expressly permitted under the terms of the retainer agreements counsel negotiated with the institutional plaintiffs that initiated this suit. (Singer Decl. ¶¶ 191-92.) Further, the notice distributed to nearly 500,000 potential class members advised that plaintiffs’ counsel would seek a fee not to exceed 20% of the settlement fund. (Singer Decl. ¶ 194.) Only thirty-one opt-outs— thirteen of which were from class members who suffered losses — and five objections were received. In re Citigroup Inc. Bond Litig., 296 F.R.D. at 153-54.

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In re Citigroup Inc. Bond Litigation, 988 F. Supp. 2d 371, 2013 WL 6697822, 2013 U.S. Dist. LEXIS 178436 (S.D.N.Y. 2013).

988 F. Supp. 2d 371 (In re Citigroup Inc. Bond Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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