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Category: Class Incentive Awards

Class Counsel Earn $10M in Fees in $31M Keurig Antitrust Settlement

June 23, 2021

A recent Law 360 story by Bryan Koenig, “Class Counsel Awarded $10M in Fees From $31M Keurig Deal, reports that a New York federal judge signed off on a $10.3 million attorney fees award, plus $2.3 million in litigation costs, for plaintiff firms that negotiated a $31 million antitrust settlement with Keurig Green Mountain Inc. resolving claims the coffee giant monopolized the market for single-serve coffee packs.  U.S. District Judge Vernon S. Broderick also granted final approval to the deal itself covering indirect buyers who purchased Keurig K-Cup Portion Packs through middlemen between September 2010 and August 2020.  Taking the lead on negotiating that settlement were attorneys from Kaplan Fox & Kilsheimer LLP, Wolf Haldenstein Adler Freeman & Herz LLP and Pearson Simon & Warshaw LLP.

The firms, backed by others, had sought approval for their one-third cut last month on arguments that the request was fair and reasonable in light of the length, complexity and risks involved in pursuing the litigation.  Judge Broderick agreed, signing off on legal costs that also include up to $911,286.43 in administrative and notice costs for JND Legal Administration, along with a $3,000 award for each of 11 class representatives who submitted to depositions and another $1,500 for the remaining 20 named plaintiffs.

The settlement, which does not affect ongoing claims from Keurig competitors like TreeHouse Foods Inc., came out of suits brought against Keurig that were consolidated into multidistrict litigation in 2014 over allegations of anti-competitive practices in the marketing of the company's single-serve packs of roasted and ground coffee for use in its coffee machines.

Buyers and coffee companies, including TreeHouse, alleged Keurig's anti-competitive actions included forcing distributors to enter exclusive agreements, filing baseless patent infringement lawsuits against competitors and attempting to dissuade retailers from selling competitors' products.  They also alleged Keurig misled consumers into believing that rival pods wouldn't work with "Keurig 2.0" coffee machines and modified the machines purely to make them incompatible with competitor pods.

In April, the court allowed the attorneys general of Illinois and Florida to object to the method of distributing the $31 million settlement to residents of their states.  Neither Keurig nor the indirect buyers who reached the deal opposed the intervention bid, though the judge said the settlement class has "made clear" it will not willingly change the allocation plan and sought to reserve the right to argue that the objections should have come sooner.

The indirect buyer class cut a deal with the Illinois and Florida enforcers last week that recognized the ability of residents of those states to recover antitrust damages as indirect buyers.  The revised plan treats Florida and Illinois as "repealer states," putting them among those that have acted at the state level to counter the U.S. Supreme Court's Illinois Brick doctrine, which generally blocks indirect buyers from securing monetary damages under the Sherman Act.  The indirect plaintiffs filed the revision, which does not change the Keurig settlement itself, the same day as a special master's report that recommended adopting the changes.

Judge Approves $2.1M in Fees in Illumina Shareholder Suit

March 19, 2021

A recent Law 360 story by Emille Ruscoe, “Levi & Korsinsky Earns $2.1M for Illumina Shareholder Suit,reports that the Levi & Korsinsky LLP legal team representing investors in biotechnology company Illumina Inc. in their proposed shareholder class action will receive $2.1 million in attorney fees, a federal judge in San Diego.  In the fee order, U.S. District Judge M. James Lorenz granted the firm's request for $2.1 million for their work on the case, which accused the company of artificially inflating its stock prices by hiding declining sales from the public.

Judge Lorenz also approved reimbursement of litigation expenses totaling $167,727, agreeing to all of the requested expenses except for the $2,000 the firm asked for to pay its attorneys' travel expenses for the final approval hearing in the matter.  The judge also agreed to a proposed $25,000 incentive award for plaintiff Anton Agoshkov and to $1,000 incentive awards apiece for two other plaintiffs, Braden Van Der Wall and Steven Romanoff.

"The requested fees and expenses are within the range approved by this court in its preliminary approval of class settlement, and are therefore presumptively reasonable," Judge Lorenz said.  The judge noted that the fee reflected hourly fees of $850 to $1,025 for Levi Korsinsky partners and $350 to $650 for associates, and that the firm spent an estimated 3,937 hours working on the case.  The parties to the suit told Judge Lorenz they'd reached a settlement deal in June 2019 in a motion for preliminary approval that called the $13.85 million deal, which represents a 4.6% recovery of an estimated $300 million in damages, a "fair, reasonable, and adequate" outcome for the proposed class.

$9M in Attorney Fees in Fidelity Workers 401K Settlement

February 27, 2021

A recent Law 360 story by Alexis Shanes, “Fidelity Workers’ Attys Get $9M Cut of 401K Settlement,” reports that a Boston federal court approved $9 million in fees for the attorneys who helped current and former Fidelity Investments employees secure a $28.5 million settlement in their suit accusing the company of loading its workers' 401(k) plans with costly, proprietary investment options. 

In addition to granting the request by attorneys from Nichols Kaster PLLP and Block & Leviton LLP for a one-third cut of the settlement, U.S. District Judge William Young greenlighted $1.4 million in litigation expenses and $115,000 in settlement administration expenses.  The court also approved service awards of $10,000 each for lead plaintiffs Kevin Moitoso, Tim Lewis, Mary Lee Torline and Sheryl Arndt.  The four plaintiffs represented a class of roughly 41,000 current and former Fidelity workers.

In a December motion for fees, the attorneys said they had logged 7,862 hours working on the case.  In that time, they said, they developed the original complaint and amended it four times; reviewed or produced more than 180,000 pages of documents; and deposed a dozen witnesses.

"There is no question that class counsel devoted significant time and effort to this case," the attorneys said in the fee bid.  "Plaintiffs litigated this case vigorously, pursuing the case up to one month before trial was set to begin.  "This court and other courts have approved one-third fee awards in cases at far earlier stages of litigation," they added.

The parties struck the deal in July, after Judge Young set the suit up for trial with a March case stated order, an alternative to cross-motions for summary judgment that allowed the court to draw inferences and reach a decision based on undisputed facts in the case.  The order found Fidelity liable for failing to monitor proprietary mutual funds in the workers' 401(k) plan.  The parties had requested the case stated procedure after filing dueling summary judgment motions in September 2019.

The Fidelity workers sued under the Employee Retirement Income Security Act in October 2018, alleging Fidelity Management & Research Co., FMR LLC and four related entities had loaded their retirement plans with costly investment options that burdened plan participants.  The Fidelity retirement plan had roughly $15 billion in assets by the end of 2016, according to the complaint, ranking it among the top 20 such plans in the nation.

$110M Fee Request Trimmed in $650M Facebook Biometric Settlement

February 26, 2021

A recent Law 360 story by Lauren Berg, “$650M Facebook Privacy Deal OK’d, $110M Atty Fees Trimmed,” reports that a California federal judge praised a $650 million settlement resolving claims that Facebook's facial recognition technology violated Illinois users' biometric privacy rights, calling it a "landmark result," but he trimmed the $110 million requested attorney fees to $97.5 million.  U.S. District Judge James Donato gave his final stamp of approval to the multimillion-dollar deal resolving claims under the "new and untested" Illinois Biometric Information Privacy Act, calling it a major win for consumers in the "hotly contested" area of digital privacy.

The settlement will put at least $345 each into the hands of 1.6 million class members who filed claims, according to the order, and Facebook has agreed to set its "face recognition" default setting to "off" for all global users and delete all existing and stored face templates for the class members.

But Judge Donato also cut back the $110 million in attorney fees that class counsel at Edelson PC, Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP asked for, saying the $650 million size of the settlement fund is not a typical case that warrants the use of a 25% contingency fee as a benchmark.  The judge said in this case it would be more appropriate for him to adjust the benchmark percentage or employ the lodestar method instead to avoid "windfall profits" for class counsel.

"To be clear, the court recognizes the skill, dedication and hard work class counsel brought to this case and their clients," Judge Donato said.  "The fact that the court cannot in good conscience award fees on the presumption of a 25% contingency cut should not be read as detracting from that in any way."

"It is simply a matter of fairness and proportion," the judge said.  He said a 25% presumption is just too big to be applied to a settlement fund as large as this one.  The class counsel spent more than 30,103 hours on the case, according to the order — including 9,577 hours by Robbins Geller, 8,103 hours by Labaton Sucharow and 12,423 hours by Edelson.

The judge adjusted the percentage rate from 16.9% of the settlement fund to 15%, giving the class counsel $97.5 million in attorney fees, according to the order.  The judge said he also cross-checked that number with a lodestar calculation and found the award to be more reasonable than the one requested.  But the judge said 15% of the attorney fee award will be held back pending further order.  He granted the class counsel's request for $915,000 in expense reimbursement, finding sufficient documentation, according to the order.

The judge also reduced the incentive awards for the three class representatives — Nimesh Patel, Adam Pezen and Carlo Licata — from the requested $7,500 each to $5,000 each, saying that even though the requested amount would be a "minuscule proportion" of the settlement, it's still too high in comparison to the amount other class members will receive.

Judge Donato praised the parties' "proposed array of innovative ways to reach class members" and notify them of the settlement, including by direct email, Facebook's newsfeed notifications, publication in Illinois newspapers, a settlement website and an internet ad campaign.  "These were robust measures, and they paid off in spades," the judge said.

$1.9M Fee Award in $7.5M Google Data Breach Settlement

January 8, 2021

A recent Law 360 story by Dorothy Atkins, “Google’s $7.8M Data Breach Deal OK’d. Attys Get $1.8M” reports that a California federal judge overruled 761 objections and approved Google's $7.5 million deal resolving a proposed class action over a years-long data breach that exposed millions of accounts on the now-defunct Google+ social media platform, with class counsel getting $1.875 million in fees and $69,000 in costs.

During a hearing held via Zoom, U.S. District Judge Edward Davila approved the fee request, which represents 25% of the total settlement fund, along with a $1,500 incentive award to each class representative, but he asked counsel to give a breakdown of their lodestar.  Class counsel, John A. Yanchunis of Morgan & Morgan, said their lodestar estimate is roughly $995,000, making the requested fees subject to a 1.88 multiplier.

Before approving the deal, Judge Davila noted there have been a little less than 50,000 opt-outs and 761 objectors, with a total pool of about 1.8 million individuals who opted in who will receive an estimated $3 each.  The judge overruled the objections to the settlement and notice provisions, saying "the potential for the breach was large.  It was great.  It was significant," but the settlement reached was an arm's-length resolution that was fair, reasonable and adequate.  The judge didn't address any of the objections further.  Two objectors appeared during the hearing, but submitted their objections on their papers.

The complaint alleges Google learned of the initial breach in March 2018, but made the "calculated decision" not to tell its users until months later.  It also alleges that the number of those impacted is likely "much higher" than the 500,000 users Google cited in its announcement, pointing to the fact the API logs are only built to keep historical data for two weeks.  The suit, which claims the users' data is highly valuable on the dark web, accused Google and Alphabet of unfair and unlawful business practices, negligence, invasion of privacy, and violating California's Customer Records Act.