Krasner v. Dreyfus Corp.

90 F.R.D. 665
CourtDistrict Court, S.D. New York
DecidedJuly 13, 1981
DocketNos. 76 Civ. 1478 (JMC), 76 Civ. 4010 (JMC), 76 Civ. 184 (JMC) and 78 Civ. 5636 (JMC)
StatusPublished
Cited by6 cases

This text of 90 F.R.D. 665 (Krasner v. Dreyfus Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krasner v. Dreyfus Corp., 90 F.R.D. 665 (S.D.N.Y. 1981).

Opinion

MEMORANDUM AND ORDER

CANNELLA, District Judge.

Joint application for approval of a proposed consolidated settlement of these four shareholder derivative actions is approved. Fed.R.Civ.P. 23.1.

Plaintiffs’ application for attorneys’ fees, costs and disbursements in Krasner v. Dreyfus Corp., 76 Civ. 1478 (JMC) [“Krasner”], and Gross v. Dreyfus Corp., 76 Civ. 4010 (JMC) [“Gross”], is granted in the amount of $350,000, to be paid by Dreyfus Liquid Assets, Inc. Plaintiff’s application for at-tomeys’ fees, costs and disbursements in Untermeyer v. Dreyfus Liquid Assets, Inc., 76 Civ. 184 (JMC) [“Untermeyer I’’], and Untermeyer v. Dreyfus Liquid Assets, Inc., 78 Civ. 5636 (JMC) [“Untermeyer II”], is granted in the amount of $100,000, to be paid by The Dreyfus Corporation.

• FACTS

The extraordinary history of this litigation is reviewed at length in the Court’s Memorandum and Order of August 27, 1980, see Krasner v. Dreyfus Corp., 500 F.Supp. 36 (S.D.N.Y.1980) [the “August 27th decision”], and that portion of the decision is hereby incorporated by reference herein.1 The terms of the original and amended stipulations of settlement in the Krasner and Gross cases, as well as the stipulation of settlements in both Unter-meyer actions, are also fully set forth in the Court’s August 27th decision. There has been no change since then in the settlement terms and they need not be repeated herein, except as necessary for purposes of illustration.

When the Court denied without prejudice the joint application for approval of settlement, it explained to the parties what it considered to be the shortcomings of that application, and directed them to supplement the record with evidence concerning (1) the best possible recovery and the probable recovery in these cases, (2) the fees paid by all competitive money market funds of reasonably comparable size, and (3) the seven factors mentioned as pertinent to a determination of the fairness of an advisory fee. While the Court recognizes that this request caused certain hardships for the litigants, it appreciates their efforts to comply therewith, especially in light of plaintiffs’ counsel’s decision not to seek additional attorneys’ fees for this undertaking.

DISCUSSION

In evaluating a proposed settlement in a derivative action, the Court’s function [667]*667is “not to substitute [its] business judgment for that of the negotiators who bargained at arm’s length, but only to insure that the arrangement is not so unfair as to require disapproval.” Desimone v. Industrial Bio-Test Laboratories, Inc., 83 F.R.D. 615, 619 (S.D.N.Y.1979) (footnote omitted). Chief Judge MacMahon’s succinct articulation of the steps entailed in such an evaluation was adopted by the Court in the August 27th decision, and bears repeating herein:

First, the proponents have the burden of proving that (1) the settlement is not collusive but was reached after arm’s length negotiation; (2) the proponents are counsel experienced in similar cases; (3) there has been sufficient discovery to enable counsel to act intelligently and (4) the number of objectants or their relative interest is small. If the proponents establish these propositions, the burden of attacking the settlement then shifts to the objectants, if any. Finally, the Court must approve the settlement only after finding it to be reasonable in light of the plaintiffs’ ultimate probability of success in the lawsuit.
In determining reasonableness, the courts in this circuit have not applied any single, inflexible test. Instead, they have considered the amount of the settlement in light of all the circumstances, including such factors as: (1) the best possible recovery; (2) the likely recovery if the claims were fully litigated; (3) the complexity, expense and probable duration of continued litigation; (4) the risk of establishing liability; (5) the risk of establishing damages; (6) the risk of maintaining the class action throughout the trial; (7) the reaction of the class to the settlement; (8) the stage of the proceedings and (9) the ability of the defendants to withstand a greater judgment.

Id. at 618-19 (footnotes omitted).2

The Court adheres to its prior finding that the proposed amended settlement in the Krasner, Gross and Untermeyer II actions “is the product of arm’s length negotiations, between capable and experienced attorneys.” Krasner v. Dreyfus, supra, 500 F.Supp. at 41. The Court also notes that no objections to the substantive terms of the settlement had been received prior to the August 27th decision, id. at 41 — 42 & n.7, and no shareholder has objected to date. The Court makes the same findings with respect to the Untermeyer I settlement. Moreover, based on the supplemental submissions, the Court is satisfied that there has been sufficient discovery to enable counsel to act intelligently in negotiating both settlements encompassing all four actions. Thus, the proponents have met their initial burden.

KrasnerZGross/Untermeyer II Settlement

On the question of reasonableness, the Court will first consider the Krasner, Gross and Untermeyer II settlement. Section 36(b) of the Investment Company Act, 15 U.S.C. § 80a-35(b), imposes on an investment adviser, such as the Dreyfus Corporation [the “Adviser” or “Dreyfus”], a fiduciary duty with respect to the compensation paid for its services by the investment company or its security holders, in this case Dreyfus Liquid Assets, Inc. [the “Fund” or “DLA”]. Accordingly, the Court of Appeals for the Second Circuit has limited the fees that may legally be charged by an adviser to a “fair” amount under traditional equitable principles. Galfand v. Chestnutt Corp., 545 F.2d 807, 811-12 & n.7 (2d Cir. 1976), cert. denied, 435 U.S. 943, 98 S.Ct. 1524, 55 L.Ed.2d 540 (1978). Since section 36(b) limits plaintiffs’ possible recovery to “actual damages resulting from the breach of fiduciary duty,” the maximum recoverable from the Adviser is “the amount by which the 0.5% fee exceeded a fair fee.” Krasner v. Dreyfus, supra, 500 F.Supp. at 42.

It is immediately apparent how important this fairness question becomes in determining the reasonableness of the proposed settlement. Under Desimone, an assessment of the risks of establishing liability [668]*668and damages as well as the best possible and likely recovery requires consideration of this issue, for if a flat 0.5% fee is fair, then the best possible recovery and likely recovery would be nothing, and the risk of establishing liability and damages would be great. If, on the other hand, 0.5% far exceeds a fair amount, the best possible recovery and likely recovery would be in the millions of dollars and the risk of establishing liability and damages would be small. Thus, if after considering the proposed settlement, the Court leaned toward the latter finding, it would not approve the settlement.

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Bluebook (online)
90 F.R.D. 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krasner-v-dreyfus-corp-nysd-1981.