Wenderhold v. Cylink Corp.

191 F.R.D. 600, 2000 U.S. Dist. LEXIS 3169, 2000 WL 288109
CourtDistrict Court, N.D. California
DecidedFebruary 4, 2000
DocketNos. C 98-4292 VRW, C 98-4536 VRW, C 98-4360 VRW, C 98-4296 VRW, C 98-4603 VRW, C 98-4673 VRW, C 98-4757 VRW
StatusPublished
Cited by9 cases

This text of 191 F.R.D. 600 (Wenderhold v. Cylink Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wenderhold v. Cylink Corp., 191 F.R.D. 600, 2000 U.S. Dist. LEXIS 3169, 2000 WL 288109 (N.D. Cal. 2000).

Opinion

WALKER, District Judge.

This order addresses the issue of appointment of lead counsel in these consolidated securities class actions. On September 3, 1999, the court declined to designate as lead plaintiffs a group of Cylink shareholders and to appoint as lead counsel a consortium of law firms; instead, the court designated an individual investor, Jonny Alpern, as lead plaintiff and initiated a competitive bidding process for selection of class counsel. See Wenderhold v. Cylink Corp., 188 F.R.D. 577 (N.D.Cal.1999). Although seven law firms had sought to participate in the consortium, only one firm — Abbey, Gardy & Squitieri— submitted a bid. See Wenderhold v. Cylink Corp., 189 F.R.D. 570, 571 (N.D.Cal.1999).

The Abbey proposal, however, failed to comply with the court’s bid request in that its percentage-of-the-recovery fee schedule did not include litigation expenses. Id. at 572-73. Expenses, according to the proposal, would be assessed separately against any recovery fund. Id. Because this arrangement eliminated the incentive for the firm to choose the optimal mix of attorney and non-attorney inputs, the court rejected the Abbey bid and extended the bidding period. Id. at 573.

In the second round of bidding, the court received proposals from three law firms. Abbey amended its bid to comply with the court’s order. Weiss & Yourman, a firm that had participated in the rejected consortium, resurfaced to submit a proposal. The third bid came from Innelli & Molder, a Philadelphia firm that, although it had not previously participated in the litigation and did not represent a Cylink shareholder, correctly interpreted the court’s order as seeking bids from any qualified firm.

On January 19, 2000, the court conducted a hearing, ex parte and on the record, to aid its evaluation of the three proposals. The court borrowed this helpful concept from Judge Alsup. See In re Network Associates Securities Litigation, 76 F.Supp.2d 1017 (N.D.Cal.1999). Prior to the hearing, the court disclosed the competing proposals to the bidding firms to provide each an opportunity to argue the relative strengths of its bid and weaknesses of the others. At the outset of the hearing, a representative from the Abbey firm announced that Abbey was withdrawing its bid and would no longer seek appointment as class counsel. The court [602]*602proceeded to hear argument from Weiss & Yourman and Innelli & Molder with respect to their bids and the qualitative advantages of the respective firms.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, “the district court must exercise its inherent authority to assure that the amount and mode of payment of attorneys’ fees are fair and proper. This duty exists independent of any objection [from a member of the class].” Zucker v. Occidental Petroleum, 192 F.3d 1323, 1328 (9th Cir.1999).

Weiss & Yourman is a 19-attorney firm with offices in Los Angeles and New York. Innelli & Molder is a two-attorney firm based in Philadelphia. Attached as Appendix A is a comparison of the competing fee proposals expressed in terms of net recovery to the class at different stages in the litigation and at various levels of gross recovery from defendants. As an initial matter, the court notes that this method of expressing fee proposals is a useful supplement to the percentage-of-recovery schedule the court has used in previous cases and, indeed, earlier in this litigation. See, for example, Wenderhold v. Cylink, 188 F.R.D. 577. Appendix A focuses attention, quite appropriately, on the amount the class will receive, rather than on the lawyers’ take. Under this approach, a law firm commits to delivering a set dollar amount to the class upon recovery. This should minimize ex post haggling over the meaning of percentages..

Percentages still must be examined initially, to determine whether the proposals are in keeping with the twin principles that the ratio of fees and expenses should decline as recovery increases and increase as the litigation progresses. See 189 F.R.D. at 571. The combined fee and expense schedules submitted by Innelli & Molder and Weiss & Yourman, upon which the court’s comparison table (Appendix A) is based, are attached as Appendix B and Appendix C to this order, respectively. In computing the comparison table, the court translated the percentages differently for each firm due to the different manner in which the firms interpreted the court’s call for bids. As explained at oral argument, Innelli & Molder’s fee is calculated by adding the stated percentage for the first $500,000 to the stated percentage for the next $500,000, and so on for each recovery category. To arrive at Weiss & Your-man’s fee, on the other hand, one simply locates the amount of recovery at the appropriate spot on the grid and applies the percentage specified. The susceptibility of the court’s initial bid schedule to multiple interpretations, though vexing at first, had the fortuitous result of encouraging the bidders to express fees and expenses in terms of net recovery to the class. The firms should be commended for this insight.

As the class recovery comparison shows, Innelli & Molder is the “high” bidder; the class stands to recover more under Innelli’s proposal almost across the board. The most significant disparity occurs in the $2 million to $10 million gross recovery range. Of a settlement fund created prior to the motion to dismiss stage, for example, Innelli’s proposal results in a 12-14 percent higher net recovery to the class. On the basis of price alone, the Innelli bid is the clear .winner.

Of course, as Weiss & Yourman emphasized at the hearing, price is not the sole consideration. And, indeed, the court heartily agrees. See, for example, In re Oracle Securities Litigation, 136 F.R.D. 639, 648 (N.D.Cal.1991)(“Competitive selection does not make price supreme and determinative, but forces the lawyers and courts to deal with the quality of class counsel’s services.”)(emphasis in original). In support of its argument that “the lowest bid is not always the best bid,” Weiss & Yourman claims to offer the following qualitative advantages: (1) prior litigation experience in this circuit, and familiarity with special pleading issues in securities cases; (2) a California presence consisting of ten attorneys in Los Angeles; (3) a well-established working relationship with defense counsel and (4) an in-house accounting expert. In addition, Weiss & Yourman is not new to this particular case and has been retained by Cylink shareholders.

While Innelli & Molder acknowledges that it has not litigated previously in this circuit, it emphasizes its extensive experience in securities class actions in other circuits. In addition, not only does the firm employ an accountant, but one of its partners is a CPA [603]*603and both have degrees in economics. That Innelli does not currently represent a Cylink shareholder is not of great significance, the firm argues, because in securities cases plaintiffs typically do not possess information about the challenged conduct not publicly available.

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Bluebook (online)
191 F.R.D. 600, 2000 U.S. Dist. LEXIS 3169, 2000 WL 288109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wenderhold-v-cylink-corp-cand-2000.