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Saska v. Metropolitan Museum of Art

Supreme Court, New York County

June 15, 2017

Filip Saska, TOMAS NADRCHAL, and STEPHEN MICHELMAN, Plaintiffs,
v.
The Metropolitan Museum of Art, Defendant.

          Emery Celli Brinckerhoff & Abady LLP, for the Saska Plaintiffs.

          Arnold & Porter Kaye Scholer LLP, for defendant.

          Hiller, PC, for the Grunewald Plaintiffs, as objectors.

          Anna St. John of the Competitive Enterprise Institute Center for Class Action Fairness, as objector.

          Shirley Werner Kornreich, J.

         By order dated November 10, 2016, the court granted preliminary approval of the parties' amended class action settlement agreement (the Settlement). See Dkt. 133 (the Preliminary Approval Decision). [1] The parties now move for final approval of the Settlement and class certification. There are two objectors: (1) the Grunewald Plaintiffs, who object on the same grounds as in their opposition to preliminary approval; [2] and (2) Anna St. John, on behalf of the Competitive Enterprise Institute Center for Class Action Fairness, who objects on the grounds that the Settlement is purportedly a worthless disclosure-only settlement and that the $350, 000 in fees requested by plaintiffs' attorneys at Emery Celli Brinckerhoff & Abady LLP (ECBA) are excessive. The court reserved on the motion after oral argument. See 5/5/17 Tr. For the reasons that follow, the court grants plaintiffs' motion in all respects except for the $1, 000 service awards sought for each of the three class representatives.

         The history of this action and the related action commenced by the Grunewald Plaintiffs is set forth in the Preliminary Approval Decision and is not repeated here. Likewise, an extensive discussion of the Settlement's terms may be found in the Preliminary Approval Decision. [3]

         At this juncture, the parties seek final approval of the Settlement, which principally requires the Museum to change its signs to more clearly and prominently inform the public that the listed admission prices are merely suggested, and not mandatory. Compare Dkt. 155 (old sign with "Recommended" in much smaller font than "Admissions"), with Dkt. 153 at 47-53 ("Suggested Admission" and "The amount you pay is up to you" prominently displayed at top of sign and in much larger font than suggested prices, as well as information online and on kiosks). The court does not believe a reasonable person is likely to be deceived by the new signage into thinking there is a mandatory $25 admission fee. Likewise, the court does not believe a reasonable person could compare the two signs side-by-side and conclude that the new sign is not a significant improvement over the old sign. Since the only claim being settled is a claim for injunctive relief to remedy the Museum's allegedly deceptive admission policy and attendant signage as violative of GBL § 349, the outcome achieved by the Settlement is outstanding.

         As discussed in the Preliminary Approval Decision, there is no merit in the Grunewald Plaintiffs' contention that additional relief is warranted. The additional relief they seek would remedy claims that are not being settled (e.g., claims for monetary damages) or claims that were dismissed (i.e., claims under the Lease and the 1893 Statute). See Preliminary Approval Decision at 19 ("[T]he claim being settled is for the allegedly deceptive nature of the Museum's admission policy. Plaintiffs' claim that the Museum is legally prohibited from charging admission was dismissed and provides no basis to upend the proposed settlement."). It would be unreasonable to require the parties' settlement to account for either of these types of claims. See id. at 20 ("the Grunewald Plaintiffs could not have expected the Museum to agree to do things the Museum would not have had to do even if it lost in [this case].") (citation and quotation marks omitted). The Settlement sufficiently remedies claims that are actually pending. The signs, already put in place, which clearly inform the Museum's patrons of the discretionary nature of their admission fee, are far less deceptive than the previous signs, where the word "Recommended" was in small print. This is particularly the case when taken together with the changes on the website and the kiosks.

         That said, before granting final approval to a class action settlement, the court must first certify that the requisite factors militate in favor of approval and class certification. Here, the court will not separately discuss class certification because it has already done so in the Preliminary Approval Decision. See Preliminary Approval Decision at 22-23, accord Borden v 400 E. 55th St. Assocs., L.P., 24 N.Y.3d 382, 399-400 (2014). Simply put, this action is a textbook example of a case that is most amenable to resolution on a class-wide basis.

         It is black-letter law that a court in granting final approval to class action settlement must weigh the following factors: "the likelihood of success, the extent of support from the parties, the judgment of counsel, the presence of bargaining in good faith, and the nature of the issues of law and fact." In re Colt Indus. S'holder Lit., 155 A.D.2d 154, 160 (1st Dept 1990), aff'd as mod. 77 N.Y.2d 185 (1991); see Gordon v Verizon Commc'ns, Inc., 148 A.D.3d 146, 156 (1st Dept 2017) (reaffirming Colt factors and adding two more, discussed below).

         The likelihood of plaintiffs prevailing in this case was highly uncertain. There is little doubt that a determination of whether the Museum's old signage was deceptive under GBL § 349 would have been a question for the finder of fact. It is axiomatic that all trials involve substantial risk and uncertainty. To hedge that risk and to avoid the extreme expense of electronic discovery, depositions, expert reports, and motion practice over class certification and summary judgment, as well as appeals of apparent legal questions of first impression, the Museum agreed to settle by offering to change its signage and admission policy in a manner that makes the voluntary nature of its patrons' contributions far more apparent. Indeed, if plaintiffs were to prevail on liability at trial, the court would have had to issue an injunction mandating new signage. The agreed-upon signage is not dissimilar to what the court would have ordered.

         As discussed in the Preliminary Approval Decision, the court, much to the parties' chagrin, rejected the proposed signage in their original settlement agreement, and only agreed to grant preliminary approval after the signage was changed to its current form. Ergo, the court believes the new signage clearly and accurately informs the public of the Museum's admission policy. Given the court's belief that the signage is substantially similar to what plaintiffs would have obtained had they prevailed on the merits, the Settlement's result is a very good outcome. Hence, the court finds that first and fifth approval factors, the likelihood of success and the nature of the issues of law and fact, weigh heavily in favor of approval.

         The next three factors - the extent of support from the parties, the judgment of counsel, and the presence of bargaining in good faith - also militate strongly in favor of approval. As explained in the Preliminary Approval Decision, there is no reason to doubt that the Settlement is the product of extensive arms' length negotiations between two New York law firms with excellent reputations. The court cannot overstate the thoughtfulness demonstrated by counsel to the unique legal issues in the case and their diligence in the lengthy, complex and protracted settlement process. Moreover, the court, as noted, had some involvement in the process that resulted in the final iteration of the signage, going so far ...


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