Pending before the court is the final approval of a class action Settlement Agreement. On September 5, 2007, this court conducted a final fairness hearing to determine whether the proposed Settlement Agreement between the parties was fair, reasonable and adequate, and to address Class Counsel's application for an award of attorneys' fees and costs. The transcript of that hearing along with this Decision and Order constitutes the full decision of this court.
For the reasons that follow, this court approves the settlement agreement in all respects except as to attorneys' fees. The court will only permit attorneys' fees for the time spent by the attorneys for the class at the hourly rates traditionally charged in their native jurisdiction.
Previously, the court reserved on whether it would authorize payment of attorneys' fees to prosecute an appeal. Because it refused to add a "factor" authorizing a fee award beyond the actual hours expended, the court also stated that counsel would be, compensated for work already performed, and to be performed, which was not reflected in the previously submitted fee documentation (i.e. work for the Final fairness hearing through the filing of the proposed order). In light of oral argument and the proposed order submitted, the court now modifies it previous statement for sake of clarity. Subject to court approval upon submission of accurate billing records, the court authorizes additional compensation to class counsel for work done from the final fairness hearing through the submission of the proposed order. See Dkt. No. 141. The court will not authorize counsel fees to prosecute an appeal, or otherwise provide any future compensation beyond the time expended through the preparation of the proposed order currently before the court. See Dkt. No. 141. Class counsel is to submit, within SEVEN days of this order, the amount of attorneys' fees for the time expended for the final fairness hearing through the preparation of the proposed order currently before the court.
The court,having read and considered the Settlement Agreement, the Notice Plan, and Memoranda of Law submitted by Class Counsel, having reviewed the Defendants' response and opposition regarding attorneys' fees, having received evidence at the hearing, having heard arguments from Class Counsel and the Defendants, and having considered the submissions by Class members, now rules as follows:
i. This action was commenced on june 29, 2004, as a class action.
ii. After many months of intensive litigation, including extensive discovery and motion practice before this court, and as a result of intensive, arm's length negotiations between Class Counsel and Defendants, including a daylong settlement conference before Magistrate Judge Randolph F. Treece on May 17, 2005, the parties have reached accord with respect to a Settlement that provides substantial benefits to Settlement Class Members, in return for a release and dismissal of the claims at issue in this case against the Defendants ("Settlement Agreement"). The resulting Settlement Agreement was preliminarily approved by the court on November 29, 2006.
iii. As part of the Order Granting Preliminary Approval, this court approved a proposed Notice Plan and Class Notice, which provided Settlement Class Members notice of the proposed settlement. The Notice Plan provided an opportunity for class members to file objections to the Settlement.
iv. As of the deadline for the filing of objections, only one objection was filed. This objection, filed by an individual incarcerated in state prison, failed to detail any basis for the objection. Given the size of this Settlement, and the notice plan described above, this court finds that the comparatively low number of objections is indicative of the fairness, reasonableness and adequacy of the Settlement with the Defendants.
v. Class Counsel has filed with the court affidavits from JoAnn Graff, Rust Consulting, and Dong He Chang, I Partners Inc., declaring that the mailing of the court-approved notice and the maintenance of the settlement website, consistent with the Notice Plan, has been completed. Class Counsel has also filed an affidavit reflecting the notice efforts undertaken by them.
vi. The court finds that the published notice, mailed notice, Internet posting and other notices constitute the best practicable notice of the Fairness Hearing, the proposed Settlement, Class Counsel's application for fees and expenses, and other matters set forth in the Class Notice and the Short Form Notice; and that such notice constituted valid, due and sufficient notice to all members of the Settlement Class, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of New York and any other applicable law.
vii. Any persons who wished to be excluded from this Action were provided an opportunity to "opt out" pursuant to the Notice. All persons who have validly excluded themselves from this Action have no rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or the final judgment herein. The individuals who ...