Mogell v. Franklin

219 F. Supp. 2d 657, 2002 U.S. Dist. LEXIS 17691
CourtDistrict Court, W.D. Pennsylvania
DecidedAugust 16, 2002
DocketCivil Action Nos. 91-354, 99-596
StatusPublished
Cited by1 cases

This text of 219 F. Supp. 2d 657 (Mogell v. Franklin) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mogell v. Franklin, 219 F. Supp. 2d 657, 2002 U.S. Dist. LEXIS 17691 (W.D. Pa. 2002).

Opinion

MEMORANDUM ORDER

D. BROOKS SMITH, Chief Judge.

The notice of the settlement of this derivative action1 provided, inter alia, that CBS was to receive $250,000, to be paid by the insurance company that had issued the officers’ and directors’ policies, that otherwise would have been paid to settle a companion class action securities fraud case. William C. Rand, a practicing attorney in New York and a shareholder of CBS, filed an objection to the settlement of the derivative action. Rand, proceeding pro se, argued that settlement did not confer a benefit upon CBS. Dkt. no. 356. Because there was no benefit, Rand as[659]*659serted, that the request of plaintiffs’ counsel in the derivative action for $750,000 in attorneys’ fees should be denied. The settlement was approved at the conclusion of the fairness hearing. Subsequently, over Rand’s objection, I granted, in part, the request for attorneys’ fees in a memorandum order dated October 18, 2000. In a pro se appeal, Rand challenged the award of attorneys’ fee to plaintiffs counsel in the derivative action.

On September 10, 2001, the Third Circuit determined that the settlement of the derivative litigation did not confer a benefit on CBS. It reversed my order awarding counsel fees and remanded the matter with the instruction to enter an order denying the motion for plaintiffs’ counsel’s fees.

Within a week after this court received the mandate from the Third Circuit, Rand filed Ms own motion for attorneys’ fees and expenses. Dkt. no. 376. His motion appended a document entitled “Lodestar Time Records of William Coudert Rand.” Id., exh. A. The fees were $67,100 and the expenses were $672.59, totaling $67,772.59. Despite this lodestar, Rand requested an award of $250,000, the very same amount that CBS received under the settlement. He asserted in his brief in support that this request was appropriate under the common benefit doctrine because it was one-third of the original $750,000 request by plaintiffs’ counsel that Rand had successfully opposed, thereby “creating a fund of $750,000.” Dkt. no. 377, at 3-4. As further support for his fee request, Rand cited numerous awards to plaintiffs counsel in class actions creating a common fund, ranging from 21.6% to 53% of the common fund.

Shortly thereafter, a Stipulation between Rand and CBS Corporation was filed, providing that “CBS Corporation shall pay appellant Rand an amount of $95,000.” Dkt. no. 379. It further stipulated that “[sjuch payment shall fully and finally settle and dispose of any and all claims that Appellant Rand may have to reimbursement of attorneys’ fees and expenses in connection with the appeal.” Id. I have yet to endorse that Stipulation. Before endorsing that stipulation, I must determine whether such an award is permissible to a pro se attorney objector who has conferred a benefit upon the corporation.

In determining whether Rand is entitled to a fee award, I begin with the jurisprudence relating to fee awards in derivative actions. It is well settled that

plaintiffs in a shareholder derivative action may ... recover their expenses, including attorneys’ fees, from the corporation on whose behalf their action is taken if the corporation derives a benefit, which may be monetary or nonmonetary, from their successful prosecution or settlement of the case.

Shlensky v. Dorsey, 574 F.2d 131, 149 (3d Cir.1978); see also Kaplan v. Rand, 192 F.3d 60, 69 (2d Cir.1999). The authority for this principle dates back to the Supreme Court’s decision in Trustees v. Greenough, 105 U.S. 527, 15 Otto 527, 26 L.Ed. 1157. (1881). There, Mr. Vose, one of many bondholders of the Florida Railroad Company, commenced suit against the Trustees of certain realty to set aside fraudulent conveyances, to enjoin further conveyances and to appoint a receiver in an effort to prevent any further waste or destruction of assets. Mr. Vose’s efforts were successful, resulting in “a large amount of the trust fund [being] secured and saved.” Id. at 529, 15 Otto 527. Near the end of the case, Mr. Vose submitted an account of his expenditures, including, inter alia, attorneys’ fees, and a statement of the personal services he rendered over a period of more than eleven years. Eventually, a final order was entered allowing [660]*660$60,131.96 for “the personal expenses and services of Vose[.]” Id. at 531, 15 Otto 527.

This award was challenged on appeal. The Greenough majority rejected defendant’s argument that Mr. Vose was not entitled to an allowance for the expenses and counsel fees incurred in prosecuting the action. Id. at 537, 15 Otto 527. The Court reasoned that

It would be very hard on him to turn him away without any allowance except the paltry sum which could be taxed under the fee-bill. It would not only be unjust to him, but it would give to the other [bondholders] entitled to participate in the benefits of the fund an unfair advantage. He has worked for them as well as for himself; and if he cannot be reimbursed out of the fund itself, they ought to contribute their due proportion of the expenses which he has fairly incurred. To make them a charge upon the fund is the most equitable way of securing such contribution.

Id. at 532, 15 Otto 527.

Courts have recognized that objectors, like shareholders, “are entitled to an allowance as compensation for attorneys’ fees and expenses where a proper showing has been made that the settlement was improved as a result of their efforts.” White v. Auerbach, 500 F.2d 822, 828 (2d Cir.1974).2 Thus, “[o]bjectors who successfully challenge plaintiffs’ attorneys’ fees [in a class action] are entitled to an award of their attorney fees because their arguments have conferred a benefit on the class.” In re Horizon/CMS Healthcare Corp. Securities Litigation, 3 F.Supp.2d 1208, 1214 (D.N.M.1998) (citing Gottlieb v. Barry, 43 F.3d 474, 491 (10th Cir.1994), and; Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir.1993)); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir.2002); Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 288 (7th Cir.2002); Shaw v. Toshiba America Information Syst. Inc., 91 F.Supp.2d 942, 973-74 (E.D.Tex.2000); In re Domestic Air Transp. Antitrust Litigation, 148 F.R.D. 297, 359 (N.D.Ga.1993); In re Anchor Secur. Litigation, 1991 WL 53651 (E.D.N.Y. April 8, 1991) (denying fees requested by objector’s counsel because counsel’s efforts clouded the issues).

At first blush, it appears that Rand should be entitled to counsel fees. As a pro se attorney objector Rand conferred a definite benefit upon the corporation by successfully challenging the award of attorneys’ fee to plaintiffs counsel in the underlying derivative action. Rand represented himself, however. As a result, he did not incur any attorney fees for which he is personally responsible.

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Related

In Re Westinghouse Securities Litigation
219 F. Supp. 2d 657 (W.D. Pennsylvania, 2002)

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Bluebook (online)
219 F. Supp. 2d 657, 2002 U.S. Dist. LEXIS 17691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mogell-v-franklin-pawd-2002.