W. Alton Jones Foundation v. Chevron U.S.A. Inc.

142 F.R.D. 588, 1992 U.S. Dist. LEXIS 7616
CourtDistrict Court, S.D. New York
DecidedMay 21, 1992
DocketNos. 82 Civ. 5253 (MBM), 87 Civ. 8982 (MBM)
StatusPublished
Cited by28 cases

This text of 142 F.R.D. 588 (W. Alton Jones Foundation v. Chevron U.S.A. Inc.) 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
W. Alton Jones Foundation v. Chevron U.S.A. Inc., 142 F.R.D. 588, 1992 U.S. Dist. LEXIS 7616 (S.D.N.Y. 1992).

Opinion

OPINION AND ORDER

MUKASEY, District Judge.

This case is before the court to resolve the objections of Charles J. Waidelich and Charles V. Wheeler to the proposed class action settlement and, if those objections are found insufficient to warrant rejecting the settlement, to treat class counsel’s fee application. No timely objection has been raised to the fee application itself, although one letter from a class member that can be interpreted as such an objection was received on March 31, 1992 and is discussed in section IV below. For the reasons set forth below, the Waidelich and Wheeler objections are overruled, the class action settlement is approved, and the fees of class counsel are fixed in the amount set forth in the order accompanying this opinion.

I.

As recited extensively in a prior opinion reported at 725 F.Supp. 712 (S.D.N.Y.1989), familiarity with which is assumed, this case arises from an abortive tender offer in June 1982 by Gulf Oil Company for the stock of Cities Service Company. The surviving class claims in this case arise from the allegation that on or about July 13, 1982 Gulf changed its corporate mind about the desirability of going forward with the tender offer, but did so for reasons that would not permit Gulf to withdraw from [590]*590the applicable agreements. Class plaintiffs charge that Gulf then fraudulently failed to disclose that fact, and instead undertook to sabotage the deal by fomenting a confrontation with the Federal Trade Commission and then arguing that the FTC’s position in the resulting litigation permitted Gulf to withdraw pursuant to the terms of the applicable agreements. This course of conduct by Gulf is alleged to violate § 15 of the Offer to Purchase, as well as §§ 10(b) and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78n(e). See 725 F.Supp. at 718-27, 738-43, 748-50, 754.

Gulf has interposed two defenses of note, both arising from allegedly inadequate disclosures by Cities in connection with the proposed transaction which, when discovered, arguably would have allowed Gulf to withdraw. One is that Cities failed to disclose a substantial potential liability to the Department of Energy (“DOE”); the other is that Cities materially overstated its oil and gas reserves.

Waidelich and Wheeler filed their objections on March 10, 1992, the last day for filing such objections, and did so with substantial assistance from counsel for plaintiffs Foster Bam and others who previously had opted out of the class. The objectors and opt-out plaintiff Bam had significant roles in the underlying events. Waidelich was the chief executive officer of Cities, Wheeler was its general counsel and Bam was a director of Cities and chaired its audit committee.

At the time the objectors made known their opposition to the settlement, the case had been divided into three potential trials: (i) Gulf’s liability based on its undisclosed change of position; (ii) Gulf’s defenses (if necessary); and (iii) damages (if necessary). The trial of Gulf’s liability was scheduled to begin on March 24. The other trials had not been scheduled, and discovery as to certain issues relating to those trials, particularly Gulf’s defense based on Cities’ alleged overstatement of reserves, was not yet complete.

II.

The objectors contend that if the class were successful at trial, its members would recover approximately $30 per share, and that the proposed settlement will yield only a hundredth of that, or about 30 cents per share, a discount they believe unwarranted “considering that the class has the opportunity to obtain full recovery, plus interest, in a relatively brief period of time by proceeding to trial.” (Waidelich Aff. ¶ 6) Needless to say, they believe firmly in the strength of class plaintiffs’ position, as enhanced in their view by the force and credibility of their own proffered testimony. (Waidelich Aff. 117; Wheeler Aff. 11 6)

To explain why class counsel on the eve of so swift, certain and profitable a victory would slink from the field with so little booty, the objectors casually offer the accusation, with no supporting evidence and after declining the offer of an evidentiary hearing (3/18/92 Tr. at 4), that class counsel sold out their clients’ interest for lucrative fees based on “a wink and a nod” exchanged with defense counsel. (Objectors’ Mem. at p. 22)

The objectors’ arithmetic is deficient, although, as explained below, not nearly as deficient as their logic, their history and, if there is anything to Gulf’s defenses, their deportment as well. The class stands to recover some $18.4 million of the settlement proceeds after fees and expenses; the tender offer was for 41.5 million shares, from which must be subtracted the shares held by the opt-out plaintiffs, which leaves about 38 million shares. That yields a recovery of a bit more than 48 cents per share, payable in the proportion that the shares tendered by each member of the class bear to 41.5 million, assuming that all tendered shares are the subject of valid proofs of claim.

Before dealing with the objectors’ remaining arguments, it is useful to recall the legal standard that governs a proceeding of this kind. The law favors settlements, of class actions no less than of other cases. Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982). Moreover, “that a proposed settlement may only amount to [591]*591a fraction of the potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved.” City of Detroit v. Grinnell Corporation, 495 F.2d 448, 455 (2d Cir.1974).

The Court in Grinnell listed with approval nine factors considered by the district court in that case before it approved the settlement:

(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 action 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.

Id. at 463 (citations omitted). Of those factors, the last appears to be the end product of the other eight, and thus should not count as a separate factor. Of the remaining eight, the last three—the risks of maintaining the class action through the trial, the ability of the defendants to withstand a greater judgment and the range of reasonableness of the settlement fund in light of the best possible recovery—appear to favor the objectors, but they are hardly the most significant factors. With respect to the factor the objectors stress most—the alleged imbalance between the settlement and the possible recovery—the Court in Grinnell said specifically that “there is no reason ...

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Cite This Page — Counsel Stack

Bluebook (online)
142 F.R.D. 588, 1992 U.S. Dist. LEXIS 7616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-alton-jones-foundation-v-chevron-usa-inc-nysd-1992.