than 2 of such shares (or approximately 1.5%), as recommended.
23. Applications for attorneys' fees have also been filed by three other attorneys representing plaintiffs in this litigation, Messrs. Hamburg, Walner and Reckless. After hearing argument in support of and in opposition to such applications at the December 22, 1970 hearing, this Court indicated that it would not allow attorneys' fees to Messrs. Walner and Reckless but that it would consider a partial allowance to Mr. Hamburg. Since the hearing, Mr. Walner has filed a motion to reconsider his previous application and has requested an allowance of $30,000. At the request of the Court, Mr. Hamburg has now submitted further information in support of his application.
24. The application of Mr. Reckless for an attorney's fee is denied, as it does not appear that this attorney contributed in any meaningful way to the creation of the settlement fund.
25. The application of Mr. Walner for an attorney's fee is denied, as is his motion to reconsider his fee petition. On behalf of certain claimants in this litigation, Mr. Walner accepted the proposed settlement and filed claims with the Committee. On behalf of certain other claimants, Mr. Walner filed exclusions, electing to litigate such claims. Mr. Walner appeared before this Court on December 22, 1970 and opposed final approval of the settlement. In view of the clearly conflicting positions that he has taken and continues to take in this litigation, this Court concludes that he is not entitled to an attorney's fee for services rendered in contributing to the creation of the settlement fund.
26. The application of Mr. Hamburg for allowance of an attorney's fee is granted in part, and a fee of $5,000 is approved as reasonable for his firm. Although originally opposing the settlement, Mr. Hamburg subsequently filed a formal claim on behalf of the one client of his who still remains in this litigation. Mr. Hamburg is therefore not now taking an inconsistent position concerning the proposed settlement. During the period from October, 1969 to March 1, 1970, Mr. Hamburg actively contributed to the commencement of and conduct of settlement negotiations. He is entitled to a reasonable fee for his efforts at this early stage of the negotiations, before Mr. Sullivan assumed the leadership on behalf of the settling plaintiffs. In fixing a fee to be allowed to Mr. Hamburg, this Court notes that he will receive in addition some $8,000 directly from his client under the claim that such client has filed with the Committee.
Conclusions of Law
1. The conclusions of law heretofore contained in this Court's opinion in Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corporation, supra, are hereby reaffirmed and are incorporated herein.
2. The claim of Ace Heating and Plumbing Co., Inc., is hereby denied.
3. It is not the function of this Court in determining whether to approve the proposed settlement to weigh or try disputed issues of law or fact. Schleiff v. Chesapeake and Ohio Railway Co., 43 F.R.D. 175, 178 (S.D.N.Y. 1967); West Virginia v. Chas. Pfizer & Co., Inc., 314 F. Supp. 710 (S.D.N.Y. 1970). The Court should, however, compare the recovery under the proposed settlement to the likely rewards of litigation. Protective Committee Independent Stockholders v. Anderson, 390 U.S. 414, 424-25, 20 L. Ed. 2d 1, 88 S. Ct. 1157 (1968).
4. The proposed settlement is hereby approved as fair and reasonable. West Virginia v. Chas. Pfizer & Co., Inc., supra.
5. The temporary settlement class is hereby designated as a final and permanent class.
6. Final judgment should be entered herein in those cases in which the plaintiffs have not properly excluded themselves under the terms of the settlement agreement.
7. There is no just reason for delay in the entry of final judgments in any of the cases hereby affected.
8. The applications for attorneys' fees filed by Lawrence Walner and Walter W. Reckless are hereby denied.
9. The other fees and expenses requested are hereby approved in the amounts hereinbefore set forth.
Counsel are directed to submit an appropriate Order and Judgment prepared in accordance with the findings and conclusions herein made.
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