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In re Fasteners Antitrust Litigation

United States District Court, Third Circuit

January 27, 2014

IN RE FASTENERS ANTITRUST LITIGATION

MEMORANDUM

SURRICK, J.

Presently before the Court is Co-Lead Counsel’s Joint Petition for Award of Counsel Fees, Payment of Costs and Expenses, and Award of Incentive Payments to the Class Representatives (ECF No. 129). For the following reasons, the Motion will be granted.

I. BACKGROUND

A. Factual Background and Procedural History

The factual background of this multi-district litigation is more fully set forth in the Court’s August 12, 2011 Memorandum denying Defendants’ motions to dismiss the complaint, In re Fasteners Antitrust Litig., No. 08-1912, 2011 WL 3563989 (E.D. Pa. Aug. 12, 2011), and the Court’s Memorandum granting Plaintiffs’ Motion for Final Approval of Proposed Settlements with the Prym, YKK, and Coats Defendants and Plaintiffs’ Proposed Plan for Distribution of Settlement Funds (ECF No. 134).

Plaintiffs Fishman & Tobin, Greco Apparel, Inc., Jolna Apparel Group LLC, and Norman Shatz Co., U.S.A. (collectively, “Plaintiffs”) brought this consolidated class action on behalf of themselves and others who purchased fasteners in the United States from Defendants from January 1, 1991, until September 19, 2007 (the “Class Period”). (Id. at ¶ 2.)[1] Plaintiffs serve as the representatives of the class. There are three groups of Defendants in this case: (1) the “Prym Defendants, ” which include William Prym GmbH & Co. KG, Prym Consumer USA, Inc., Prym Fashion, Inc., Prym Inovan GmbH & Co., Prym Consumer GmbH, EP Group S.A., Inovan GmbH & Co. KG, Prym Fashion GmbH, Prym Consumer Europe GmbH, and William Prym Inc.; (2) the “YKK Defendants, ” which include YKK Corporation, YKK Corporation of America, Inc., YKK (U.S.A.) Inc., and YKK Snap Fasteners America, Inc.; and (3) the “Coats Defendants, ” which include Coats Holdings, Ltd., Coats Holdings, Inc., Coats American, Inc., d.b.a. Coats North America, Coats North America de Republica Dominicana, Inc., and Coats & Clark, Inc.[2]

On August 12, 2011, we denied Defendants’ joint motion to dismiss. (ECF Nos. 92-93.) On August 6, 2012, we denied the YKK and Coats Defendants’ motion to certify the order denying the motion to dismiss for interlocutory appeal. (See ECF Nos. 118-119.)

On August 12, 2013, Plaintiffs filed a motion seeking preliminary approval of proposed settlements with the Prym, YKK, and Coats Defendants, and seeking authorization to disseminate notice to the settlement class. (Mot. Prelim. Approval, ECF No. 124.) Attached as exhibits to Plaintiffs motion for preliminary approval were the proposed settlement agreements with the Prym, YKK, and Coats Defendants. (Agreements, Mot. Prelim. Approval Exs. 1-3.)

On August 26, 2013, we granted Plaintiffs’ motion seeking preliminary approval of the proposed settlement. (Order Prelim. Approval, ECF No. 126.) In our Order, we determined that the “proposed settlements with Prym, YKK and Coats, as set forth in the respective Settlement Agreements, subject to final determination following proper notice and a fairness hearing, are sufficiently fair, reasonable and adequate to authorize dissemination of notice to the proposed settlement class (the “Settlement Class”).” (Id. at ¶ 2.) We defined the Settlement Class as:

All persons and entities who purchased Fasteners in the United States directly from a Defendant during the period from and including January 1, 1991 to an including September 19, 2007. Excluded from the Class are Defendants and their predecessors, successors, parents, subsidiaries, affiliates, divisions and governmental entities.

(Id.) The Preliminary Approval Order also appointed class representatives, appointed Co-Lead Counsel to represent the Settlement Class, approved the form and content of the Notice of Proposed Settlement of Class Action With the Prym, YKK and Coats Defendants and Hearing on Settlement Approval and Claim Form (“Notice”), and directed that the Notice be sent to all members of the settlement class, be posted on the internet, and be advertised in the Wall Street Journal. (Id. at ¶¶ 5-11.) Finally, the Preliminary Approval Order scheduled a fairness hearing for January 10, 2014, to, among other things, “determine the fairness, reasonableness, and adequacy of the proposed settlements with Prym, YKK and Coats . . . .” (Id. at ¶ 18.)

Pursuant to the Preliminary Approval Order, on October 25, 2013, counsel for the Settlement Class directed a printing company to mail, by first class mail, postage prepaid, 32, 359 copies of the Notice to potential Settlement Class members. Notice of the proposed settlement was also published in the Wall Street Journal on November 7, 2013, and posted on a website, www.FastenersAntitrustLitigation.com. (Cert. of Mailing, ECF No. 131; see also Class Counsel’s Report, ECF No. 132.)

The Notice to the Settlement Class advised that any objection to the proposed settlement, to the plan of distribution, or to Plaintiffs’ counsel’s application for fees, litigation costs, and incentive awards, had to be filed with the Clerk by December 15, 2013. (Class Counsel’s Report 2.) There were no objections filed by any potential Settlement Class members. The Notice to the Settlement Class also advised that requests for exclusion from the Settlement Class had to be sent to Settlement Class Counsel no later than December 15, 2013. (Id.)[3] Settlement Class Counsel received one timely request for exclusion from American Soccer Company, Inc. (d/b/a Score Sports).

On January 24, 2014, we granted Plaintiffs’ motion for final approval of the settlement agreements with Defendants. (See ECF No. 134 (“Final Settlement Approval Memorandum”); ECF Nos. 135-137 (“Final Settlement Approval Orders”).) The Settlement Agreements each provide for the resolution of this multi-district litigation. Pursuant to the proposed settlements, the Prym, YKK, and Coats Defendants will make payments totaling $17.55 million (the “Settlement Fund”). The Prym Defendants will make a payment of $1.1 million, the YKK Defendants will make a payment of $6.6 million, and the Coats Defendants will make a payment of $9.85 million. (Agreements.) Each Defendant has already made these required payments into an escrow account that has been accruing interest.

On November 25, 2013, Co-Lead Counsel filed the instant Petition for Award of Counsel Fees, Payment of Costs and Expenses and Award of Incentive Payments to the Class Representatives. (Pet., ECF No. 129.) A fairness hearing was held on January 10, 2014. Arguments were heard regarding the approval of the fees and costs requested in the Petition. (Jan. 10, 2014 Hr’g Tr. (on file with Court); Min Entry, ECF No. 133.)

II. PETITION FOR ATTORNEY’S FEES AND EXPENSES

Co-Lead Counsel requests $5.85 million in attorney’s fees, which represents one-third of the Settlement Fund, and $337, 667.72 in litigation costs and expenses. This is the first time that Co-Lead Counsel has requested fees and expenses in this case. No interim fees were requested or awarded.

Rule 23(h) of the Federal Rules of Civil Procedure provides that “[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed.R.Civ.P. 23(h). We must determine whether Co-Lead Counsel’s request for these fees and expenses is fair and reasonable. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to reasonable attorney’s fees from the fund as a whole.”); Brytus v. Spang & Co., 203 F.3d 238, 242 (3d Cir. 2000); In re Corel Corp. Inc., 293 F.Supp.2d 484, 498 (E.D. Pa. 2003) (“There is no doubt that an attorney who has created a common fund for the benefit of the class is entitled to reimbursement of . . . reasonable litigation expenses from that fund.”) (internal quotation omitted).

Generally, two methods are used for assessing attorney’s fees: the percentage-of-recovery method and the lodestar method. In re Prudential Ins. Co. of Am. Sales Practice Litig., 148 F.3d 283, 333 (3d Cir. 1998). In the Third Circuit, “[t]he percentage-of-recovery method is generally favored in cases involving a common fund, and is designed to allow courts to award fees from the fund ‘in a manner that rewards counsel for success and penalizes it for failure.’” Welch & Forbes, Inc. v. Cendant Corp. (In re Cendant Corp. Prides Litig.), 243 F.3d 722, 732 (3d Cir. 2001) (quoting In re Prudential, 148 F.3d at 333). Although the lodestar method is more commonly used in statutory fee-shifting cases, “it is sensible for a court to use a second method of fee approval to cross-check its initial fee calculation.” In re Rite Aid Corp. Sec. Litig, 396 F.3d 294, 300 (3d Cir. 2005). In practice, courts in the Third Circuit assess requests for attorney’s fees in antitrust cases using the percentage-of-recovery method, and then cross-check the result with the lodestar method. See, e.g., In re Flonase Antitrust Litig., No. ...


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