The opinion of the court was delivered by: EDWARD N. CAHN
Plaintiffs brought this action alleging that Unisys Corporation ("Unisys") violated the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., when it unilaterally modified its retiree medical benefits plans. On October 26, 1994, the court approved a partial settlement ("the settlement") as to Sperry and Burroughs incentive retirees ("the settlement class"). Attorneys for plaintiffs now petition the court for an award of fees and expenses.
I. BACKGROUND & PROCEDURAL HISTORY
The court will recite the background and procedural history of this case, and describe the settlement, because of their relevance to the award of attorneys' fees. In September, 1986, Sperry Corporation and Burroughs Corporation merged to form Unisys Corporation. After the merger, Unisys maintained the preexisting medical benefit plans ("the predecessor plans") for Sperry and Burroughs retirees. In 1989, Unisys created the Post-Retirement and Extended Disability Medical Plan ("the old plan") to cover all employees who retired after April 1, 1989, most of whom were former Sperry and Burroughs employees. At that time, Unisys left the predecessor plans intact. On January 1, 1993, Unisys terminated the predecessor plans and the old plan and replaced them with the new Unisys Post-Retirement and Extended Disability Medical Plan. Under this plan, the retirees no longer receive free medical insurance. Instead, they must pay a portion of the monthly premiums. The plan required the retirees to pay the full cost of premiums beginning January 1, 1995.
This litigation was commenced by a series of lawsuits, filed in federal courts in Pennsylvania, New York, Minnesota, and Michigan by various groups of retirees who had worked for Unisys or its Sperry and Burroughs predecessors in those states and elsewhere throughout the country. The New York, Minnesota, and Michigan actions subsequently were transferred to this court by the Judicial Panel on Multi-District Litigation, and this court ultimately consolidated all of the actions. On June 9, 1993, this court certified the case as a class action Pursuant to Fed. R. Civ. P. 23(b)(2).
The class action covered all former Sperry, Burroughs, and Unisys employees, and their eligible dependents, who were participating in the former Sperry, Burroughs, and Unisys post-retirement medical plans in November 1992. Among these plaintiffs were "incentive retirees", who retired under a voluntary early retirement incentive program.
Plaintiffs asserted three general claims. First, they claimed that they were entitled to lifetime benefits as a matter of contract. They based this assertion on the summary plan descriptions ("SPDs") in the predecessor plans, which promised them that their benefits would continue for life.
Second, plaintiffs asserted that even if the SPDs were not enforceable as contracts, Unisys and its predecessors had breached their fiduciary duty to the retirees by affirmatively leading them to believe, by repeated written and oral assurances, that their benefits would continue for life, and that the benefits would not be subject to change after retirement.
Third, plaintiffs asserted that Unisys should be equitably estopped, given these assurances and plaintiffs' reliance on them, from exercising any right to change or terminate the plans.
Additionally, the incentive retirees asserted contract claims separate from the claims they shared with the regular retirees. They claimed that Unisys offered them certain benefits to induce them to retire, that they accepted those offers by retiring earlier than they otherwise would have done, and that the offer and acceptance formed binding contracts, apart from the contracts arising from the SPDs.
The court granted partial summary judgment disposing of all claims brought by the regular retirees of Burroughs and Unisys. In re Unisys Corp. Retiree Medical Benefits ERISA Litigation, 837 F. Supp. 670 (E.D. Pa. 1993). As to the regular retirees of Sperry, the court denied Unisys' motion for summary judgment with respect to the breach of contract claims,
but granted summary judgment on the claims for breach of fiduciary duty and estoppel. The partial summary judgment had no effect on the incentive retirees' claims, however, because Unisys moved for summary judgment against the regular retirees only.
The court then held a non-jury trial on all of the claims which remained after the partial grant of summary judgment. Testimony was heard from more than 80 witnesses and approximately 800 exhibits were admitted. After trial, extensive briefing, and oral argument, the court ruled in favor of Unisys on all claims brought by the Unisys incentive retirees. The court also ruled in favor of Unisys on the Sperry regular retirees' contract and estoppel claims. However, the court allowed the Sperry regular retirees to proceed with their breach of fiduciary duty claims.
It remains to be determined whether individual hearings will be necessary to determine which Sperry regular retirees are entitled to a remedy for Unisys' breach of fiduciary duty, and what such remedy should be. Cross-appeals are pending from the summary and post-trial judgments.
Following the trial, and four days before closing arguments, the Sperry and Burroughs incentive retirees and Unisys agreed on a proposed settlement. On October 17, 1994, the court held a hearing pursuant to Fed. R. Civ. P. 23(e) on plaintiffs' motion to approve the settlement.
The court subsequently approved the settlement. See In re Unisys Corp. Retiree Medical Benefits ERISA Litigation, 1994 U.S. Dist. LEXIS 17877, NO. MDL 969, 1994 WL 702638 (E.D. Pa. Nov. 3, 1994).
The settlement obligates Unisys to pay $ 111 million -- $ 72.9 million for the Sperry incentive retirees and $ 38.1 million for the Burroughs incentive retirees -- as a "present value" contribution toward the cost of continued medical coverage for the incentive retirees. Since these settlement amounts are "present value" amounts, they will grow each quarter by a fixed rate of interest applied to the outstanding, unused balance of the settlement amounts promised by Unisys.
The Sperry and Burroughs settlement accounts will be supervised by separate Advisory Committees consisting of Sperry and Burroughs incentive retirees. The Committees will be assisted by actuarial consultants and attorneys as needed. The Committees' principal responsibility will be to monitor Unisys' compliance with its settlement obligations, periodically to review the status of the settlement accounts, and to determine any needed changes in the contribution schedules or coverage terms of the plan. Disputes about implementation and compliance with the Settlement Agreement, if not resolved under the negotiated dispute resolution procedures established by the settlement, will be subject to this court's jurisdiction.
III. PETITIONS FOR ATTORNEYS' FEES
Under the terms of the settlement, Unisys will pay to Class Counsel "reasonable attorneys' fees and disbursements relating to the Incentive Retirees' claims and the settlement thereof... ." Stipulation and Agreement of Settlement and Dismissal of Claims of Sperry and Burroughs Incentive Retirees at 31. This payment "shall be credited against and reduce the applicable Incentive Retiree Subclass Settlement Amount." Id.
Counsel from the following thirteen law firms now jointly petition the court for an award of attorneys' fees and reimbursement of litigation expenses: Berger & Montague, P.C.; Davis, Miner, Barnhill & Galland; Joseph F. Roda, P.C.; Mansfield & Tanick; Meagher & Geer; Hirsch & Associates; Heller, Kapustin, Gershman & Vogel; Milberg, Weiss, Bershad, Specthrie & Lerach; Rossbacher & Associates; Schiffrin & Craig, Ltd.; Levin, Fishbein, Sedran & Berman; Gottlieb & Goren; and Sommers, Schwartz, Silver & Schwartz, P.C.. They seek out-of-pocket costs and expenses of $ 401,775.30 from the Sperry settlement amount and $ 153,943.81 from the Burroughs settlement amount. They also seek $ 7,949,500 in fees -- $ 5,092,000 from the Sperry settlement amount, and $ 2,857,500 from the Burroughs settlement amount -- and have agreed among themselves upon a tentative allocation of this aggregate amount. They argue that this amount is reasonable under either the "lodestar" method of awarding attorneys' fees, as a product of their aggregate lodestar of $ 3,727,689 times a "blended" multiplier of 2.13,
or as a reasonable percentage of the present value of the settlement funds.
These counsel had anticipated that counsel from the firm of Miller, Faucher, Chertow, Cafferty & Wexler would join their petition. After adding the tentative allocation to that firm, they initially calculated the "reasonable percentage" as 7.5%. However, counsel from Miller, Faucher subsequently filed a separate petition for fees and expenses, recommending that the court use an alternative method for calculating fees. Consequently, the "reasonable percentage" sought in the first petition is 7.5 minus the percentage constituted by the tentative allocation to Miller, Faucher.
Counsel from Miller, Faucher seek reimbursement of expenses in the amount of $ 21,719.22, and request an award of attorneys' fees in the amount of $ 286,993.86. They urge that their suggested method for calculating fees be applied to all firms. They also request that the method used by the court with regard to the aforementioned thirteen firms be applied equally to Miller, Faucher.
Dale Nathan, Esq., of Nathans and Associates, also petitions the court for attorneys fees and expenses. He seeks $ 49,835.62 in fees and $ 15,913.21 in expenses, or two-thirds of the $ 98,623.25
spent on behalf of settling plaintiffs from the Minnesota Retiree Defense Organization (hereinafter "MRDO").
Objections to these petitions have also been filed. Mr. Nathan, on behalf of some members of the MRDO, has objected to the award requested by class counsel on a number of grounds, and has submitted a lengthy analysis of the billing records submitted by class counsel. As part of their own fee petition, counsel from Miller, Faucher have objected, as does Mr. Nathan, to the full inclusion by class counsel of hours that were expended on behalf of both the settlement class and non-settling plaintiffs, and have also suggested that a multiplier of 2.0 be used if a lodestar approach is employed.
Defendant Unisys Corporation has objected to class counsel's fee petition. Defendant contends that, in light of the time charges by its own counsel, class counsel's time charges are unreasonable. Defendant also objects on the same ground as Mr. Nathan and Miller, Faucher concerning hours expended on behalf of all plaintiffs.
Defendant also engaged Legalgard, Inc., a legal cost and case management services company, to audit the billing records submitted by class counsel. Additionally, class counsel object to any award by this court to Mr. Nathan. Finally, between 3.3% and 5.4% of the settlement class filed separate objections to the fee petitions.
These objectors cite a lack of a complete recovery by the settlement class, a concern about paying for work done for other classes of plaintiffs, and a conflict of interest on the part of class counsel.
A. AWARDS FROM COMMON FUNDS
Under the "American Rule," parties to a lawsuit bear their own expenses, regardless of which party prevails. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975).
Several exceptions to the American Rule, however, have been created. One well-established exception is known as the "common fund" or "equitable fund" doctrine.
"[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole."
Van Gemert, 444 U.S. at 478. This doctrine has been justified by basic equity in terms of its prevention of unjust enrichment, Trustees v. Greenough, 105 U.S. 527, 532, 26 L. Ed. 1157 (1882); Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 166, 83 L. Ed. 1184, 59 S. Ct. 777 (1939); Van Gemert, 444 U.S. at 478, and out of the notion of "quantum meruit", Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 165 (3d. Cir. 1973) (Lindy I) ("the individual seeking compensation has, by his actions, benefitted another and seeks payment for the value of the service performed"), appeal following remand, 540 F.2d 102 (3d Cir. 1976) ("Lindy II").
The litigation before this court has produced two accounts, with a combined present-day value of $ 111 million, established by defendant to be shared by a certified class of more than 7000 plaintiffs. The settlement clearly has produced a "common fund." See Federal Judicial Center, Awarding Attorneys' Fees and Managing Fee Litigation 52-59 (1994) (discussing prerequisites of a "common fund").
The fact that this case was brought under ERISA, a fee-shifting statute, does not preclude recovery of attorneys' fees from the common fund that arose from settlement. Fee-shifting statutes should not circumscribe the operation of the common fund doctrine unless that operation conflicts with an intended purpose of the statute. County of Suffolk v. Long Island Lighting, 907 F.2d 1295, 1327 (2d Cir. 1990). Here, "because the settlement agreement explicitly provides that the money paid by defendants includes an unspecified sum for attorneys' fees, an award of fees from this fund would not be inconsistent with Congress's intention that, in ERISA cases, 'the offending party bear the costs of the award rather than... plan participants.'" Bowen, 760 F. Supp. at 894 (quoting Eaves v. Penn, 587 F.2d 453, 464 (10th Cir. 1978)). An award of fees from this fund would also further "the policy, underlying [ERISA], of providing both prospective plaintiffs and their attorneys an economic incentive to bring meritorious ERISA cases." Bowen, 760 F. Supp. at 894.
1. Percentage v. Lodestar
From Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 28 L. Ed. 915, 5 S. Ct. 387 (1885), until 1973, courts typically based attorneys' fees awards in common fund cases on a reasonable percentage of the fund. Herbert P. Newberg, Attorney Fee Awards, § 2.02 at 31 (1986) [hereinafter Attorney Fee Awards]; Task Force Report, 108 F.R.D. at 242; Arenson v. Board of Trade of City of Chicago, 372 F. Supp. 1349, 1357 n.14 (N.D. Ill. 1974)(listing fifteen cases in which court awarded a fee as a percentage of recovery) Judges employed a variety of factors to set the reasonable percentage
; the most common factor was "the size of the fund or the amount of benefit produced for the class." Task Force Report, 108 F.R.D. at 242.
However, "the percentage-of-recovery system sometimes resulted in strikingly large fee awards." Id. Criticism of excessive awards and unbounded judicial discretion mounted. See, e.g., Illinois v. Harper & Row Publishers, 55 F.R.D. 221, 224 (N.D. Ill. 1972). The Court of Appeals for the Third Circuit led the movement away from the percentage approach. Task Force Report, 108 F.R.D. at 242. In 1973, in an opinion by Chief Judge Seitz, the Court of Appeals established an alternative approach to determining fees in order to make meaningful review less difficult and to ensure that fee awards better reflected the reasonable value of the services provided: the "lodestar" approach. Lindy Brothers, Inc., of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973)("Lindy I"), appeal following remand, 540 F.2d 102 (3rd Cir. 1976) ("Lindy II").
Under the lodestar approach to valuing an attorney's services, the court must first determine the "lodestar" -- the number of hours reasonably expended multiplied by a reasonable hourly market rate. Lindy I, 487 F.2d at 167. "This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Hensley v. Eckerhart, 461 U.S. at 433.
The court may then adjust the lodestar, by means of a "multiplier" or an "enhancement", to reflect the contingent nature of the litigation and the quality of services rendered by counsel. In re Fine, 751 F.2d at 583-84; Lindy I, 487 F.2d at 167-68.
Other courts of appeals soon followed the Third Circuit's lead, and began emphasizing the time/rate value of counsel's services. Most adopted approaches virtually identical to the Lindy lodestar. Task Force Report, 108 F.R.D. at 244. See, e.g., City of Detroit v. Grinnell Corp., 495 F.2d 448, 470-71 (2d Cir. 1974). A few circuits adopted alternative approaches.
The 1980s witnessed another major change in the determination of attorneys' fees in common fund cases. This change was sparked by two developments. First, the Supreme Court in Blum v. Stenson noted that, unlike in fee-shifting cases, attorneys' fees in common fund cases are "based on a percentage of the fund bestowed on the class." 465 U.S. at 901 n.16.
Second, the Chief Judge of the Court of Appeals for the Third Circuit, Ruggero J. Aldisert, formed a Task Force of judges and lawyers to study the subject of court awarded attorneys' fees. The Task Force, chaired by Judge Sarokin, subsequently recommended a return to the percentage method in common fund cases. Task Force Report, 108 F.R.D. at 255-56.
1) Lindy increases the workload of an already overtaxed judicial system;
2) The elements of the Lindy process are insufficiently objective and produce results that are far from homogenous;
3) Despite the apparent simplicity of the Lindy formulation, much confusion and a lack of predictability remain in its administration;
4) Lindy creates a discincentive for the early settlement of cases; rather, it gives attorneys an incentive to accumulate hours spent on the case, often at the expense of the interests of the plaintiff class.
Task Force Report, 108 F.R.D. at 246-49.
The Task Force noted that "there is a widespread belief that the deficiencies of the current system either offset or exceed [the] benefits" of the lodestar method. 108 F.R.D. at 246. But see Matter of Superior Beverage/Glass Container, 133 F.R.D. 119, 125-28 (N.D. Ill. 1990) (explaining that objections to lodestars are overstated). The Task Force concluded that, while the lodestar approach continued to have merit in some statutory fee-shifting cases, fee awards in common fund cases and in "statutory fee cases that are likely to result in a settlement fund from which adequate counsel fees can be paid" should be based on some percentage of the fund. Task Force Report, 108 F.R.D. at 255. See also Sala v. National R.R. Passenger Corp., 128 F.R.D. 210, 213-14 (E.D. Pa. 1989) (discussing the different dynamics in statutory fee cases and common fund cases, and agreeing with the Task Force Report that "applying variant fee recovery methods to these two categories of actions will best achieve the differing policy objectives each was designed to further"); Brown, 838 F.2d at 454 (similar discussion).
The percentage approach has subsequently been employed with increasing frequency in common fund cases. Two circuits require the percentage approach. See Swedish Hospital Corp. v. Shalala, 303 U.S. App. D.C. 94, 1 F.3d 1261, 1271 (D.C. Cir. 1993); Camden I Condominium Ass'ns v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991). Additionally, at least five other circuits allow the use of either the lodestar approach or the percentage approach. In re Washington Public Power Supply System Securities Litigation, 19 F.3d 1291, 1296 (9th Cir. 1994); Rawlings v. Prudential-Bache Properties, 9 F.3d 513, 515-17 (6th Cir. 1993); Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 526 n.10 (1st Cir. 1991); Harman v. Lyphomed, Inc., 945 F.2d 969, 974-75 (7th Cir. 1991); Brown, 838 F.2d at 454.
The Court of Appeals for the Third Circuit has not considered whether the Lindy decisions precludes use of the percentage approach.
District courts within the Third Circuit, however, have endorsed the use of the percentage method on many occasions. See, e.g., In re U.S. Bioscience Securities Litigation, 155 F.R.D. 116, 118 (E.D. Pa. 1994) (following the rationale of the Task Force Report and also noting that by adopting a percentage approach, the number of lawyers for the class (34) becomes irrelevant); Sala, 128 F.R.D. at 214 (court should employ percentage approach in common fund cases so long as there "are no circumstances suggesting its application would be unjust"); In re Smithkline Beckman Corp. Securities Litigation, 751 F. Supp. 525, 533 (E.D. Pa. 1990); In re First Fidelity Bancorporation Securities Litigation, 750 F. Supp. 160 (D.N.J. 1990); In re TSO Financial Litigation, 1989 U.S. Dist. LEXIS 8253, NO. CIV.A. 87-7903 et al., 1989 WL 80316, at *6 (E.D. Pa. July 17, 1989); In re GNC Shareholder Litigation, 668 F. Supp. 450, 451-52 (W.D. Pa.1987). But see In re Centocor, Inc. Securities Litigation, 1993 U.S. Dist. LEXIS 7229, No. 92-CV-1071, 1993 WL 189937, at *5 (E.D. Pa. June 2, 1993) (using lodestar approach); Waldner v. Shulman, 1989 U.S. Dist. LEXIS 10094, NO. CIV.A. 86-7381, 1989 WL 100184, at *6 (E.D. Pa. Aug. 25, 1989) (although Task Force Report was favorably received and discussed at 1985 Judicial Conference, percentage approach impermissible until Third Circuit formally approves or adopts the Report and Recommendation).
Class counsel urge the court to follow this trend and calculate fees based on a percentage of the settlement fund.
Eschewing the lodestar approach for the percentage approach offers many advantages. "A number of salutary effects can be achieved... including removing the inducement to unnecessarily increase hours, prompting early settlement, reducing burdensome paperwork for counsel and court[,] and providing a degree of predictability to fee awards." In re Activision Securities Litigation, 723 F. Supp. 1373, 1376 (N.D. Cal. 1989). Moreover, "the percentage method is widely used in the legal marketplace in contingent fee agreements and better reflects what a client, at the outset of the litigation, is willing to pay." Steiner v. Hercules Inc., 835 F. Supp. 771, 792 (D. Del. 1993) (citation omitted). Additionally, the sharper focus on the common fund mandated by a percentage approach is appropriate because "a common fund is itself the measure of success." Herbert P. Newberg, Newberg on Class Actions, § 14.03 at 186 (1985) [hereinafter Newberg on Class Actions]. Finally, the savings in time borne by use of a percentage approach would "reduce the delay period between the settlement of a common fund case and the award of fees to counsel." Waldner, 1989 U.S. Dist. LEXIS 10094, 1989 WL 100184, at *5-6.
As with the lodestar approach, a percentage approach might also create some perverse incentives. For example, counsel might push for an early settlement simply to ensure compensation or to gain a larger fee, Chesny v. Marek, 720 F.2d 474, 477 (7th Cir. 1983). Moreover, percentage awards, if not aligned to the work actually done by counsel, run the risk of being excessive. Nevertheless, these concerns are outweighed by the need to avoid the tremendous amount of time and energy required by the lodestar approach, to cultivate efficiency by the attorneys, and generally to simplify and make more predictable the process of awarding attorneys' fees. Given these advantages and the trend in this circuit and many others, the court is indeed inclined to employ the percentage approach.
2. Percentage v. Percentage
It might be more accurate to say that the court is inclined to employ a percentage approach. This is because there is no consensus on how to determine a reasonable percentage. See Brown, 838 F.2d at 454.
Like contingent fee agreements generally, a negotiated agreement would infuse simplicity, certainty, and fairness into the attorneys' fees process. Regrettably, no such agreement was negotiated in this case.
Nor was there a negotiated agreement in In re Bioscience, 155 F.R.D. at 118-19. In that case, Judge Dalzell appointed Judge Adams as a special master to determine what contingent fee arrangement would have been negotiated "in this District for legal services in business litigation similar to this Consolidated Action." Id. at 119. Judge Adams subsequently concluded that a 30% fee award was appropriate under the circumstances of that case. Id. (citation omitted).
The court is not convinced that, as suggested by class counsel, a negotiated percentage between the settlement class and counsel would have been at least 7.5%. While it is likely that the parties would have agreed upon a rate in the range of 7.5%-12.5%, a different rate could reasonably have resulted from such negotiations. The negotiated percentage could have been as high as 15%. However, a negotiated agreement might have provided that a recovery of $ 111 million -- roughly 65% of what the settlement class would have received if they had won a full judgment -- warranted only 5% attorneys' fees.
Moreover, this post hoc approach, while still simpler than reverting to a lodestar analysis,
defeats a major purpose of the negotiated percentage. The negotiated percentage draws its strength from the fact that it is negotiated beforehand, while the results of the litigation are unknown. This helps ensure fairness to both counsel and plaintiffs. A post-settlement determination of what agreement would have been negotiated, even if done carefully, jeopardizes this fairness. See First Fidelity, 750 F. Supp. at 163 ("For counsel to seek a contingent fee after the matter has been resolved is akin to placing a wager after the outcome of event is known or playing poker with everyone's cards face up.") See also Task Force Report. 108 F.R.D. at 258 ("The advantage of the negotiated fee procedure will be entirely undermined if, at the end of the litigation, counsel have the right to renegotiate depending upon ... factors relating to the case.") Despite admiring Judge Dalzell's pragmatism in forging a solution, the court prefers not to engage in this form of hindsight.
Other courts employ different approaches in determining a reasonable percentage. Some judges note a range within which attorneys' fees typically fall. See, e.g. GNC Shareholder, 668 F. Supp. at 452 (noting that no general rule exists for awarding a reasonable percentage, court considers fact that "the normal range of common fund securities and antitrust suits is between 20 and 30 percent"); Smithkline Beckman, 751 F. Supp. at 533 (fee awards under percentage approach typically range from 19% to 45% of settlement fund); In re TSO, 1989 U.S. Dist. LEXIS 8253, 1989 WL 80316 at *7 (awards in other common fund cases range between 19% and 45% of fund); Sala, 128 F.R.D. at 214-15 (listing ranges of percentages found by other courts and commentators); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989) ("25 percent has been a proper benchmark"); Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 718 (E.D.N.Y. 1989)("in this circuit, fees typically range from 15% to 30% of the recovery"); In re Warner Communications Securities Litigation, 618 F. Supp. 735, 749 (S.D.N.Y. 1985) ("Traditionally, courts in this circuit and elsewhere have awarded fees in the 20% to 50% range in class actions"), aff'd, 798 F.2d 35 (2d Cir. 1986); In re Activision, 723 F. Supp. at 1377 ("absent extraordinary circumstances... the rate should be set at 30%"). See also Attorney Fee Awards, supra, § 2.07 at 51 (the majority of common fund fee awards fall between 20%-30% of the fund); Rescuing the Private Attorney General, supra, 42 Md. L. Rev. at 239 (typical award falls between 20% and 35% of fund).
Class counsel argue that a percentage award of 7.5% is "well below the typical range of awards of 20-45% in complex class actions cases." Memorandum in Support of Joint Petition of Counsel for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses at 16. They list in an appendix 37 cases in which the award of fees equaled or exceeded 33% of the fund. Id. at Appendix 1.
Awarding 20 to 45 percent of the $ 111 million fund in this case would be manifestly unjust:
Fixed percentages will drastically overcompensate lawyers in some cases and drastically undercompensate them in others. Twenty-five or thirty percent might be an appropriate award on a recovery of a million dollars. It is likely, however, to result in a windfall where the recovery totals many millions of dollars.
Superior Beverage, 133 F.R.D. at 124 (N.D. Ill. 1990). See also Task Force Report, 108 F.R.D. at 256 (the percentage should "decrease as the size of the fund increases"). Moreover, justifying an award of 7.5% simply because it is significantly less than 20% would be unsatisfactory. Instead, the court would need to determine an appropriate range. The number of cases involving a common fund in the neighborhood of $ 111 million is relatively small. Initial research reveals that in cases where the fund is between $ 100 and $ 200 million, fees typically range from 4%-10%.
Even if an appropriate range were determined, however, the court would also need to decide what percentage within the range to award.
Some courts have considered factors other than the results in other cases when determining a percentage.
For example, in GNC Shareholder, the court found 25% to be a reasonable percentage based in part on the following factors: counsel's experience in class action securities litigation; counsel's competency; counsel acted in best interest of class; and a significant settlement fund was obtained at an early stage of litigation. 668 F. Supp. at 452. In Edmonds, the court considered, inter alia, the novelty of the issues and the vigorous opposition of the government. 658 F. Supp. at 1141-42. In Mashburn, the court took into account the lack of substantial objections by the class and the non-monetary benefits conferred upon the class by the settlement. 684 F. Supp. at 692-93. Other courts have considered these and/or other factors. See, e.g., Camden I, 946 F.2d at 775; First Fidelity, 750 F. Supp. at 163. In re TSO, 1989 U.S. Dist. LEXIS 8253, 1989 WL 80316, at *6-7. "In most instances, there will... [arise] factors unique to a particular case which will be relevant to the district court's consideration." Camden I, 946 F.2d at 775.
Equitable factors such as these should play a role in many cases where reasonable attorneys' fees are awarded under a percentage approach. But they do not on their own suggest an appropriate percentage. Rather, they must be applied to a percentage or range of percentages that is an appropriate starting point or benchmark.
One option which readily suggests itself is to apply these equitable factors to a range based upon the results in other cases. See, e.g., GNC Shareholder, 668 F. Supp. at 452 (range of 20% to 30% apparently used as a starting point); Sala, 128 F.R.D. at 215-16 (starting with range of 25%-30% and awarding roughly 32% of fund after noting the skill and efficiency of counsel); Smithkline Beckman, 751 F. Supp. at 533-34 1990) (starting with range of 20%-27% and awarding 25% of fund after noting the skill and efficiency of counsel); In re TSO, 1989 U.S. Dist. LEXIS 8253, 1989 WL 80316, at *7 (noting range in other cases of 19%-45% and then finding request for 23% of fund "wholly justified" in light of the results of litigation and efficiency of counsel).
However, even if a range appropriate for a $ 111 million settlement were used as a starting point for applying other factors, this approach would be unsatisfactory. Such an approach might still prove unfair in that it could greatly undercompensate or overcompensate the attorneys for the amount of work they have actually done on the case. While the court would be willing to risk foregoing the close alignment of an attorneys' efforts to the award of fees for the sake of fairness and simplicity in the case of a negotiated percentage, the court will not do so in the instant litigation by simply granting a percentage that is "in the ballpark" of previously awarded fees.
In the absence of a previously negotiated percentage, the court will determine a reasonable percentage by incorporating a modified lodestar analysis, less exacting and time-consuming than a full-scale lodestar analysis. Under this approach, the court will calculate a range of fees that would result from a full-scale lodestar analysis. The court will then determine a reasonable percentage based upon the lodestar range as well as other, equitable considerations.
Based upon an extensive review of cases in which attorneys' fees were awarded out of a common fund, the court concludes that combining the percentage and lodestar approaches is consistent with the way in which courts calculate reasonable attorneys' fees. To begin with, the outcomes of these fee determinations are instructive. Courts that employ the percentage approach appear to be motivated in part by a lodestar dynamic. Because courts are reluctant to give fee awards totally incommensurate with the efforts of the attorneys, percentage awards generally decrease as the amount of recovery increases. See, e.g., Smithkline Beckman, 751 F. Supp. at 534 (sliding scale implicit in many decisions in which percentage approach is applied); Sala, 128 F.R.D. at 215 (recognizing and approving of this "inverse relationship between fund and fee"); In re TSO, 1989 U.S. Dist. LEXIS 8253, 1989 WL 80316, at appendix (only cases with total awards below $ 12 million showed fee awards of 25% or above); In re Domestic Air Transportation Antitrust Litigation, 148 F.R.D. 297, 352 (N.D. Ga. 1993) (though the benchmark in common fund cases is 20%-30%, fee awards usually fall in the 13%-20% range for funds of $ 51-$ 75 million, and in the 6-10% range for funds of $ 75-$ 200 million; fee award of 5.25% of roughly $ 300 million "adequately accounts for the economies of scale in class actions of this size"); First Fidelity, 750 F. Supp. at 163 (sliding scale used to determine fee award: 30% of the first $ 10 million, 20% of the next $ 10 million, and 10% of all monies over $ 20 million). As Judge Sarokin noted in First Fidelity, "there is considerable merit to reducing the percentage as the size of the fund increases. In many instances the increase is merely a factor of the size of the class and has no direct relationship to the efforts of counsel." Id. at 164 n.1. Accordingly,
the fee percentage would be significantly more modest as the common fund recovery begins to reach recoveries approaching or exceeding $ 100 million, based on the notion that the effort necessary to achieve recovery dollars at the high end was less onerous, on a sliding scale, than the effort expended for recovering the threshold sums by judgment or settlement.
Newberg on Class Actions, supra, § 14.03 at 190.
A similar phenomenon is evident in cases where the lodestar approach is used. The outcomes in many of these cases suggest a concern with how much of the common fund will remain after attorneys' fees are deducted. As the proportion of the lodestar to the common fund increases, courts are less willing to employ large multipliers and transfer money from the class to the attorneys.
Conversely, when this proportion is very small, courts often grant large multipliers. Thus, the state of attorneys' fees is such that one judge can heap lavish praise on counsel in three separate cases, yet use multipliers of 8.4, Muchnick v. First Federal Sav. & Loan Ass'n of Philadelphia, NO. CIV.A. 86-1104, 1986 WL 10791, at *1 (E.D. Pa. Sept. 30, 1986) ($ 250,000 award of fees -- between 3.7% and 6.25% of fund -- justified under lodestar method even though lodestar is only $ 29,732.50); 1.78, Sherin v. Smith, [1987-88 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 93,582, at 97,608 (E.D. Pa. 1987) (award is 28% of settlement fund); and 0.87, In re Fiddler's Woods Bondholders Litigation, [1987-88 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 93,537, at 97,409-10 (E.D. Pa. 1987) (where lodestar method is used and lodestar was $ 2,439,321, reasonable fees award is $ 2,116,500, or 32.7% of the settlement fund). In short, "lodestar analyses in practice tend to result in a bottom line that approximates a fair percentage." Howes v. Atkins, 668 F. Supp. 1021, 1027 (E.D. Ky. 1987) (citing Understanding the Plaintiff's Attorney, supra, 86 Colum. L. Rev. at 678-79 n.26).
Not only do the results suggest a connection between the two approaches, but the very methodology of the approaches often provides for both lodestar and percentage considerations as well. Many courts determine an award using one method, convert that award into terms of the other method, and then eyeball the second figure to ensure that the award would be appropriate under either method. See, e.g., Eltman v. Grandma Lee's, Inc., [1986-87 Transfer Binder]Fed. Sec. L. Rep. (CCH) P92,798, at 93,907 (E.D.N.Y. 1986) (after calculating lodestar with a multiplier of 2, court finds that resulting award of slightly less than 30% of fund fell reasonably within range of 20% to 50% awarded in similar cases); Golden v. Shulman, [1988-89 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 94,060, at 90,953 (E.D.N.Y. 1988) (calculating lodestar, applying multiplier, and finding that 30% is within appropriate range for percentage awards and thus justified); Brewer v. Southern Union Co., 607 F. Supp. 1511, 1536 (D. Colo. 1984) (fee award calculated under lodestar approach amounts to 13.97% of fund, a percentage "well within the range of awards in similar cases"); Steiner, 835 F. Supp. at 791 (fee award calculated under lodestar amounts to 24.5% of the fund, a percentage consistent with other awards where the funds were of similar size); Meshel v. Nutri/System, Inc., 102 F.R.D. 135, 140 (E.D. Pa. 1984) (fee calculated under lodestar approach amounts to 25% of fund, which is within the range of fee recoveries in class actions); Muchnick, 1986 WL 10791, at *4 ("low percentage of the fund which this [lodestar] fee represents confirms my conclusion that the fee is a reasonable one"); Superior Beverage, 133 F.R.D. at 133; Sala, 128 F.R.D. at 216 ("in order to avoid allowing the kind of windfall fee awards which depressed support for the percentage of recovery method in the first place," court finds that a similar result would also have resulted under lodestar approach); In re Crazy Eddie Securities Litigation, 824 F. Supp. 320, 327 (E.D.N.Y. 1993); First Fidelity, 750 F. Supp. at 164 (court admits to "manipulating the [multiplier] so as to arrive at the pre-ordained fee," i.e. the previously calculated percentage award, in determining that a multiplier of 2.5 would be appropriate).
Moreover, some courts calculate an award under one approach, and then undertake a second calculation using the other approach to demonstrate the reasonableness of the award. See, e.g., Edmonds, 658 F. Supp. at 1143 (out of "an abundance of caution," court will also calculate fees using lodestar approach); Mashburn, 684 F. Supp. at 698 (same); In re Public Service Co. of New Mexico, [1992 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 96,988, at 94,290 (S.D. Cal. 1992) ("in light of the magnitude of [the] settlement fund," court utilizes each approach); Domestic Air, 148 F.R.D. at 356-57 (undertakes lodestar analysis to help determine reasonableness of percentage award).
Even when courts focus on only one of the two approaches, the approach chosen is seldom unrelated to the other. The lodestar approach typically entails the classical percentage consideration. Courts in this circuit consider percentages in assessing a contingency enhancement. For example, the Lindy court cautioned that the lodestar might be "so large a proportion of the total recovery that [a contingency enhancement] would be minimal." Lindy I, 487 F.2d at 168. As one court in this district explained in finding that a contingency multiplier was inappropriate under the circumstances of the case, "an upward adjustment would make the Settlement Fund a fund for counsel for the class rather than a fund for the class." Fickinger v. C.I. Planning Corp., 646 F. Supp. 622, 635 (E.D. Pa. 1986). See also Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1218-19 (3d Cir. 1978) (where lodestar had been multiplied by 2 to account for contingency and the resulting fees were more than two-thirds of the settlement fund, Court of Appeals for the Third Circuit instructed the trial court to consider the size of plaintiff's award in comparison to the initial lodestar calculation before awarding an enhancement for contingency); Zeffiro v. First Pennsylvania Bank, N.A., 574 F. Supp. 443, 450 (E.D. 1983)("It would be an abuse of this Court's discretion to adjust the lodestar for contingency given that the lodestar... is a significant amount in comparison to the total amount of the settlement fund.").
Other courts have made similar percentage considerations in determining an adjustment to the lodestar. See, e.g., Warner Communications, 618 F. Supp. at 747 (a proper factor is "the requested fee in relation to the settlement")
; Van Gemert v. Boeing Co., 516 F. Supp. 412, 420 (S.D.N.Y. 1981)("'[recognizing] that the amount of fees must bear a reasonable relationship to actual recovery...'" the court awards a multiplier of 1.7.); In re AIA Industries, Inc. Securities Litigation, 1988 U.S. Dist. LEXIS 2952, No. CIV.A. 84-2276, 1988 WL 33883, at *4(E.D. Pa. March 31, 1988) (in determining multiplier, "a court should take into account what percentage of the settlement the lodestar figure represents"; no enhancement warranted since combined expenses and fees constitute over 40% of fund); Bebchick v. Washington Metropolitan Area Transit Com'n, 256 U.S. App. D.C. 296, 805 F.2d 396, 406-07 (D.C. Cir. 1986) (first factor supporting enhancement of lodestar was fact that this was a common fund case, for which a percentage approach is permitted, and that the requested enhancement of 60% would result in an award which was 25% of the fund, a reasonable percentage); State of Florida v. Dunne, 915 F.2d 542, 546 (9th Cir. 1990) (in applying the lodestar approach, ...