A recent Law 360 story by Jeff Montgomery, “Chancery’s Fee Ruling In Dell Is On The Money, Experts Say”, reports that the $266.7 million fee award Delaware's Chancery Court granted shareholder attorneys in the $1 billion Dell settlement represents a win for those seeking incentives for class counsel doggedness and a setback for corporate and institutional investors hoping to prune attorney fees after mega awards, experts told Law360.

In a 92-page decision, Vice Chancellor J. Travis Laster approved one of the largest fee awards of its type in Chancery Court history even though it was trimmed from the original request of $285 million.  His decision held to the Chancery Court's history of notching up fees for the plaintiffs' side when it's successful after pushing deep into the litigation and piling up risk.  The defense bar has routinely pushed the other way, arguing for adoption of approaches taken in federal securities actions that grant declining fee percentages as total awards grow.

Vice Chancellor Laster's opinion relied heavily on the Delaware Supreme Court's 2012 decision upholding a $304 million legal fee from a $2 billion Chancery award in Americas Mining Corp. v. Theriault, a case that went to trial.  The opinion "doubled down on that Americas Mining decision" and examined it extensively in the order, said Brian T. Fitzpatrick, the Milton R. Underwood chair in Free Enterprise at Vanderbilt Law School.  "And it doubles down on the notion that judges in Delaware are going to do what is best for class members," Fitzpatrick said.

In Americas Mining, stockholders sought damages after a 2004 deal that saw the company and its parent, Southern Copper Corp., agree to an overpriced, $3 billion acquisition of a Mexican mining company owned by Southern Copper's controller.  Then-Chancellor Leo E. Strine Jr. found in 2011 that the plaintiffs "indisputably prosecuted this action through trial and secured an immense economic benefit" for Southern Copper, while working on an entirely contingent basis for six years, facing "major league, first-rate legal talent" and grappling with complex financial and valuation issues.

In his decision this week after the Dell settlement, Vice Chancellor Laster said that the best scheme for compensating class attorneys working on a contingent fee remains the current standard, first paying out-of-pocket costs, then providing a fee based on a percentage of the net award and how far the case had progressed.  "This case involved true contingency risk. Plaintiff's counsel did not enter the case with a ready-made exit or obvious settlement opportunity.  There was a serious possibility that plaintiff's counsel would lose and receive nothing," the vice chancellor wrote.  That risk, the vice chancellor said, "supports a results-based award using the Americas Mining percentages.  No downward reduction is warranted under this factor."

At issue was Dell Technologies decision to issue a "tracking" stock after it went private in order to finance its acquisition of EMC Technologies.  The "Class V" shares were meant to follow the value of VMware Inc., in which Dell acquired a majority as a result of the EMC deal. In practice, the Class V shares traded at a steep discount, with shareholders alleging in Chancery that the 2018 swap short-changed them by about $34 per share.  The Dell settlement recovered 9.34% of the estimated potential $10.7 billion in damages that attorneys for the stockholders identified, the vice chancellor found, making it the 11th largest among cases studied as a percentage of maximum damages.

Minor Myers, a University of Connecticut School of Law professor, said the settlement was "garden variety" in every respect but its size and the opposition from some of Dell's big private investment funds.  "Presumably that's why these objecting funds are paying attention (most don't)," Myers said in an email to Law360.  "The fee request in this case was, if anything, modest in percentage terms, but of course it's gotten a lot of attention because it's a big number in the aggregate.

Myers said the opinion is in "the best tradition of Delaware's extraordinary sensitivity to incentives in confronting settlements in stockholder litigation.  When people do bad things out in the world, we rely, for better or worse, on plaintiffs' attorneys to do something about it.  They're the ones who generate results in class actions, on behalf of people who aren't usually paying attention."

Definitely paying attention were some private fund investors in Dell, who argued that the court would make a wrong turn if the award went forward as proposed.  "The enormity of plaintiff's counsel's $285 million fee application, both in absolute terms and as a proportion of the settlement fund, risks creating a dangerous precedent for Delaware courts," Pentwater Capital Management LP, holder of 1.6% of the Dell Class V tracking stock at issue in the case, said in a brief.  Pentwater was joined in its objection by other fund investors representing 24.6% of the stock. Vice Chancellor Laster acknowledged their arguments in his decision, but also pointed out their potential multimillion-dollar gain should the court prune the fee award and leave more in the settlement pool.

Jacqueline S. Vinaccia, a California attorney and member of the National Association of Legal Fee Analysis, said in a telephone interview that Vice Chancellor Laster supported his decision with an "incredibly detailed" analysis that addressed each of the objectors' points.  "All of the theories and different approaches to attorney fees that I have seen seem to have been referred to and analyzed in this case.  It's a really extensive and well-thought-out and supported opinion, which we don't often see in fee cases.  But then again, this is a billion-dollar settlement with a 26 and ⅔ percent fee award."  A group of law professors also backed a declining scale, saying a $150 million fee would be defensible while keeping $135 million more for stockholders.

Anthony A. Rickey of Margrave Law LLC, counsel to the five law professors who filed a friend of the court brief opposing the settlement and suggesting bringing Chancery Court litigation fees more in line with relatively lower payouts for large cases in U.S. District Court securities actions.  Rickey said a 15% fee would be more appropriate, providing a still-large $150 million fee while earmarking another $135 million for shareholders.  "There is a considerable amount of decreased risk after motions to dismiss," Rickey said in court papers, "even in Chancery practice."

In Dell, Vice Chancellor Laster rejected motions to toss the case in June 2020, but the battle and risks continued for another three-plus years before the settlement.  "Even where a plaintiffs' attorney has been dealt an especially strong hand, sometimes the cards aren't worth a dime if you don't lay them down on the settlement table," said Myers, the Connecticut professor.  "This opinion ensures that the incentives will be well-calibrated in the future to push attorneys to take good settlements but still make it worth it to decline bad settlements and push forward with the case."

Lawrence A. Hamermesh, professor emeritus at Widener University Delaware Law School, said the court was wrestling with the question of "What's a good approximation of what people bargaining at arm's length would do if one of them had a claim, went to a lawyer and said, 'I want you to prosecute this for us. I don't want to put up the money. You're going to take all the risk.'"  The issue becomes one of deciding when the recoveries are large, as in Dell, and whether throttling back on fees as the total rises discourages class attorneys from risking dismissal if they push past a $500 million offer and go for $1 billion.

"The government cannot do everything, and sometimes the government doesn't do anything.  If we didn't have private attorneys looking out for us, there would be more corporate misconduct in the world," Vanderbilt's Fitzpatrick said.  "This is not icing on the cake.  Private enforcement is the cake," Fitzpatrick said.  "And we need to make sure those lawyers have the right incentive.  Cutting their fee because they get more for you is not the right incentive."

A recent Law 360 article by David Ross, “Atty Fee Reversal May Complicate Claims Made Settlement”, reports on the ramification of the Lowery v. Rapsody International decision.  This article was posted with permission.  The article reads:

A decision prefaced by "will likely make the average person shake her head in disbelief" is unlikely to end well for a party.  That was the outcome when an initially sought $6 million in legal fees was later awarded at $1.7 million by a district court.  In Lowery v. Rhapsody International Inc., the U.S. Court of Appeals for the Ninth Circuit reversed the fee award June 7 because class members obtained less than $53,000 in benefits.

The rationale for that decision could spell trouble for those seeking approval of claims-made class action settlements that do not have sufficient financial benefits actually received by class members or meaningful injunctive or non-monetary relief.

Background

In Lowery, the Ninth Circuit panel addressed a claims-made class settlement.  For a little background, class settlements typically involve a claims-made or common fund structure.  A claims-made settlement involves claims submissions to determine the amount of benefits that a defendant will pay.  The ultimate amount is unknown, although, as in Lowery, caps may be in place to prevent a runaway payout amount.

In comparison, the defendant in a common fund settlement agrees to the total amount it will pay for the class settlement.  In other words, the overall amount is predetermined.  The common fund often includes settlement benefits, plaintiffs' attorney fee awards, service awards for the class representatives, and claims administration and notice costs.  In some settlements, hybrid structures are crafted that may include claims-made and common fund elements.

The Lowery case involved a claims-made class settlement in a music copyright class action. Rhapsody agreed to pay class members — copyright holders — for music played on its streaming service.  However, an earlier settlement between Rhapsody and the National Music Publishers Association to resolve the same copyright issues resulted in 98% of the class members waiving their right to participate in the settlement. This gutted the class.

Despite agreeing to pay up to $20 million for claims, Rhapsody wound up paying only $52,841.05 in claims.  Rhapsody also did not have to change its licensing practices, as Congress passed the Music Modernization Act in 2018, which allowed digital music providers to obtain blanket licenses.  On appeal, the panel found that the $1.7 million fee award to the plaintiffs' counsel, "more than thirty times larger than the amount paid to class members," was not reasonable.

The panel held that: courts must consider the actual or realistically anticipated benefit to the class­ — not the maximum or hypothetical amount — in assessing the value of a class action settlement.  On remand, the U.S. District Court for the Northern District of California was directed to "disregard the theoretical $20 million cap" and instead "start with" the actual amount the class claimed.

The panel noted that "rule is especially important when the class redemption rate is low" and another "approach would allow parties to concoct a high phantom settlement cap to justify excessive fees, even though class members receive nothing close to that amount."  The panel added that "the district court should consider cross-checking its lodestar calculation to ensure that it is reasonably proportional to the benefit provided to the class."  If the cross-check showed that the fee award exceeded 25% of the class benefits, that disparity might "suggest that the fee amount is unreasonable."

The panel added that except for extraordinary cases, a fee award should not exceed the value provided to the class, and remarked that it did not matter that "attorneys may have devoted hundreds or even thousands of hours to a case."

Potential Ramifications of the Lowry Decision

The takeaways from this decision will likely emanate far beyond copyright cases.  Class action plaintiffs attorneys may refuse to consider claims-made settlements in the Ninth Circuit, and insist on common fund settlements.  This position could extend to state court cases on the West Coast for fear that these courts might find the Ninth Circuit's decision persuasive.  Even for common fund settlements, the amount that class members actually will receive must be considered.

While common fund settlements predetermine the amount that the defendant will pay, the amount actually paid in benefits to class members might still depend on the take rate and the types of benefits available.  Common fund settlements are thus not entirely inoculated from the potential application of the panel's rationale in the Lowery decision.  A court still could consider the amount of attorney fees and the amount of the common fund actually allocable to class member benefits.

Thus, regardless of whether a common fund or claims-made settlement in the Ninth Circuit is pursued, the likely take rate and associated monetary benefit for class members should be carefully evaluated.

Looking Ahead in the Ninth Circuit

For any settlement, the impact of non-monetary and injunctive relief, which the Ninth Circuit recognized was not at issue in Lowery, should be considered. The panel noted a contrast to civil rights cases, where attorney fees awards did not need to be strictly proportional to monetary damages.  In civil rights cases, significant non-monetary and injunctive relief to the plaintiffs can be provided, but for copyright cases, attorney fees must consider the proportion between the award and the class benefits to confirm the award is reasonable.

That said, the panel recognized that in copyright cases such as infringement where substantial non-monetary relief or a meaningful benefit to society is encompassed, a fee award may exceed the monetary benefit provided to the class.  The Lowery decision does not have to be a death knell for claims-made settlements in the Ninth Circuit.  There is no reason to conclude that a well-structured claims-made settlement that provides significant settlement benefits to class members can no longer obtain court approval.  To the extent that material injunctive and non-monetary benefits are included, even more reason for optimism exists.

It also should be noted that the Lowery decision does not mean that all focus in a class settlement should be on boosting the amount paid to class members.  The key focus in Lowery was the amount of the plaintiffs' attorney fees in comparison to the amount of class member benefits.  So, maybe­ — just maybe­ — more reasonable attorney fees amounts can increasingly become part of class action settlements, whether structured as a claims-made or common fund settlement.

David Ross is a partner at Wilson Elser Moskowitz Edelman & Dicker LLP.

A recent Law 360 story by George Woolston, “NJ Justices Refuse Atty Fee Rule Exception in Records Fight”, reports that the New Jersey Supreme Court declined to award fees to Gannett attorneys in the publishing company's fight to get access to a Monmouth County town's law enforcement internal affairs records, ruling that a new exception to the long-standing rule where each party pays its own legal fees in civil litigation wasn't warranted.  Fee awards in common law right of access claims fall outside the existing exceptions to the American Rule, and granting a new exception could compromise an individual's privacy and safety as well as the public entity's interests, the justices said, backing a lower appeals court's decision to overturn a partial fee award.

"When a public entity undertakes the balancing analysis required by our decisions on the common law right of access, it should be permitted to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys' fees in the event that a court later rejects it," Justice Anne M. Patterson wrote in the unanimous decision.

Gannett-owned Asbury Park Press newspaper sought copies of police internal affairs records from New Jersey's Neptune Township on former officer Philip Seidle, who pled guilty to killing his ex-wife in 2016, under the state's Open Public Records Act and the common law, according to the opinion.  Gannett sued after the township denied the request, according to the opinion.  A trial court dismissed the release of the records under OPRA, but ordered the township to release the records redacted under the common law right of access and granted a partial fee award.

The township appealed, and the Appellate Division affirmed the trial court's dismissal of Gannett's OPRA claim, but also affirmed the order to release the redacted records, according to the opinion. Additionally, the Appellate Division overturned the partial fee award, holding the state Supreme Court recognized a right to counsel fees in common law right of access cases under certain circumstances in its 2008 decision Mason v. City of Hoboken , under the "catalyst theory."  The catalyst theory, Justice Patterson wrote citing Mason, is when a requestor of records can demonstrate the factual link between the litigation and the ultimate relief achieved, and that the relief secured by the requestor had a basis in law.

The appellate panel found Gannett was unable to justify the fee under the catalyst theory because the attorney general — who had said during oral arguments before the Appellate Division that the records would be released — released the redacted records not under court order, but because it was in the public interest, according to the opinion.  The justices affirmed the Appellate Division's decision not to award the fees, but noted the state's high court did not determine in Mason a right to attorney fees in common law right of access cases.

Gannett argued the awarding of attorney fees in actions brought under the common law right of access promotes equal access to justice and guarantees the proper representation of parties seeking public records related to law enforcement.  The company also argued the mandate in OPRA that states fee awards are available to the prevailing party applies to common law and statutory claims, and that attorney fees are a traditional element in public records disputes because OPRA and its predecessor statute, the Right to Know law, allowed for the award of those fees.

The New Jersey Supreme Court ruled attorney fees in common law right of access claims do not fall under the exceptions to the American Rule, which New Jersey courts have historically followed and which provides that each party pays its own legal fees in civil litigation.  Under the American Rule, counsel fees awards are allowed under four general exceptions: by a fee-shifting statute; by court rule; when it's allowed in some cases involving breaches of fiduciary duties; and those granted through a contractual agreement, Justice Patterson said.

The state's high court disagreed with Gannett's argument that the reference in OPRA, that fee awards are available to a "requestor who prevails in any proceeding," applies to common law right of access claims.  The justices ruled the language in the statute preceding "any proceeding" clearly indicates it only applies to court proceedings under OPRA or the Government Records Council.  "To the contrary, the Legislature made clear that its enactment of OPRA had no effect on the common law right of access," Justice Patterson said.

The court further ruled fee awards in common law right of access claims did not fall under any of the other remaining exceptions to the American Rule.  It also countered Gannett's argument that attorney fees should be viewed as a traditional element of damages common law right of access claims, ruling the state Legislature had already provided for such fees.  "Were we to accept such an argument, we would expand the narrow fiduciary exception to the American Rule far beyond its logical parameters, and the exception would swallow the rule," Justice Patterson wrote.

A recent Law.com story by Avalon Zoppo, “Attorney Fees Cannot Exceed Value to Class, 9^th Circuit Makes Clear in Copyright Case,” reports that the U.S. Court of Appeals for the Ninth Circuit made clear its view that class action plaintiffs lawyers generally should not be awarded fees that exceed the amount their clients get from a settlement as the court struck down a $1.7 million fee award in which the class received less than $53,000 in a royalties dispute settlement.

The three-judge panel, in a presidential decision last week, said the lower court wrongly calculated fees for plaintiffs’ counsel in a copyright case based on a settlement that provided for a fund of up to $20 million for class payouts.  The district court should have instead looked at the amount actually obtained by those who made claims, here $52,841.05, the Ninth Circuit said.

Judge Kenneth Lee, writing for the panel, said the $1.7 million award is one that will “likely make the average person shake her head in disbelief.”  “Except in extraordinary cases, a fee award should not exceed the value that the litigation provided to the class,” Lee wrote.  ”No rational person would spend, say, $1 million in legal fees— and endure the hassles and headaches of litigation — to recover only relief that is a small fraction of that amount.”

‘A Significant Decision’

Alexander Smith, a class action defense partner at Jenner & Block, said the opinion is the circuit’s clearest statement so far that the main principle for determining the reasonableness of attorney fees under Federal Rule of Civil Procedure 23 is the benefit to the class.  “It’s certainly a significant decision, and sort of crystallizes a point that the Ninth Circuit indirectly made over the years, which is that we are not going to tolerate class settlements that pay a disproportionate benefit to attorneys as opposed to the class members that they purport to represent,” said Smith, noting that the court has made similar rulings over the past few years.

Michelman & Robinson represented a class of musical composition holders in the lawsuit against streaming service Rhapsody International, now branded as Napster, accusing the company of infringing their copyrights by sharing songs without a license.  The district court approved $1.7 million in fees based on Rhapsody’s promise to set aside up to $20 million for class members who submit claims.  But the Ninth Circuit said the lower court should have focused its analysis on how much the class ended up taking home, adding that there was no meaningful injunctive or non-monetary relief justifying the fee award.

In a statement to Law.com, Mona Hanna, Michelman & Robinson’s Orange County office managing partner, said the court did not give enough weight to non-monetary benefits for plaintiffs that resulted from the lawsuit and that the firm is “considering our options moving forward.”

“There is no dispute that after years of failing to pay artists their legally mandated royalties, Rhapsody ceased that practice, entered into a settlement with the National Music Publishers’ Association, and created an internal artist board to watch over Rhapsody’s conduct and confirm compliance with the new procedures.   This lawsuit contributed to these significant changes and resulted in a settlement providing up to $20 million to eligible class members and other non-monetary benefits,” Hanna said.  “We believe the Ninth Circuit opinion does not appropriately acknowledge the benefits to the class and does not comport with prior authority.”

In reversing the award, the panel pointed to its 2021 holding in Kim v. Allison that courts must compare the amount anticipated to be paid and not the maximum payable amount.  In the civil rights class action against Tinder where a $1.2 million award was vacated, the company agreed to a theoretical settlement cap of up to $6 million but only $45,000 was paid out.

But leading plaintiffs class action lawyer Jay Edelson said lower courts, and the magistrate judge here in particular, did not view the circuit’s past rulings in this area as establishing a bright-line rule on the question.  The circuit now has cleared up that confusion, he said.  The panel, composed of Lee and Judges Milan Smith and Daniel Collins, said explicitly that “what matters most is the result for the class members.”

Edelson said the decision will have an outsized effect beyond the Ninth Circuit, where plaintiffs lawyers will be forced to grapple with the court’s logic.  “It’s very hard now for [class action plaintiffs lawyers] to make arguments in other courts, even outside the Ninth Circuit, and say, ‘No, it’s OK that we’re keeping 95% of the money,’” said Edelson, founder of Edelson PC.  “They’re going to have to try to explain why the Ninth Circuit’s logic was wrong.  And I don’t think that’s possible to do.”  Meanwhile, Smith predicted that the decision may push class action plaintiffs attorneys to negotiate common fund settlements over claims-made settlements.

Beyond Copyright?

Kian Hudson of Barnes & Thornburg said the court’s decision also touches beyond copyright cases.  But Hudson also said the court gestured toward a possible narrow exception for civil rights class actions.  The panel noted that fees awarded in civil rights cases “need not be strictly proportional to monetary damages” because they can benefit society through non-monetary relief such as ending civil rights abuses.

“Although this case arose in the copyright context, it’s important to note that the Ninth Circuit was applying Rule 23(h), which imposes a ‘reasonableness’ requirement to attorney fee awards in class-action cases regardless of the nature of the lawsuit,” Hudson said in an email.  “It thus seems clear that the court intends its approach to be applied across many substantive areas of law.”

Edelson said the Ninth Circuit made a similar holding in the context of a consumer class action against ConAgra over alleged false labeling on its Wesson vegetable oil as “100% all natural.”  Lee also authored that 2021 opinion, in which the court reversed $7 million in attorney fees for plaintiffs counsel based on a claims-made settlement where the food company put up a maximum of $70 million for claims but a little less than $1 million was paid out.

A recent Law 360 story by Rose Krebs, “Class Attorneys Defend $285M Fee Bid in Dell Stock Deal,” reports that class attorneys are defending their bid for a $285 million fee award as the Delaware Chancery Court gets ready to consider a proposed $1 billion settlement to end a stockholder suit challenging a $23.9 billion conversion of Dell stock, arguing the "record-breaking" deal warrants a big payout.  In a filing, attorneys with Labaton Sucharow LLP, Quinn Emanuel Urquhart & Sullivan LLP, Andrews & Springer LLC, Robbins Geller Rudman & Dowd LLP and Friedman Oster & Tejtel PLLC took issue with an objection lodged by Pentwater Capital Management LP and other Dell Technologies Inc. institutional investors who oppose the fee request.

"Plaintiff's counsel invested years of professional time and millions of dollars out-of-pocket to deliver this record-breaking result for the class," the filing asserts.  "Plaintiff's counsel did so on a fully contingency[sic] basis, with no guarantees, and without the comfort of knowing — as objectors do today — that plaintiff's counsel would (or even could) achieve this successful outcome."

In the filing, the class attorneys argue that they "achieved this outcome in the face of extraordinary risk, on the eve of trial, and against highly determined defendants with endless resources and a history, well known to this court, of dogged litigation."  The fee and expense award sought "is eminently fair, reasonable, and well-supported by governing precedent and prevailing market practices," they contend.

Earlier this month, and in another filing, Pentwater argued that an award equal to 28.5% of the $1 billion settlement would be unfair to the class.  Citing several studies, it argued last week that "empirical research uniformly confirms that in federal class actions, as settlement amounts rise, fee percentages fall."  "Contrary to concerns about the decreasing percentage model, scholarship indicates that lowering fee percentages does not reward lawyers marginally less compensation for the same work," it said.

Vice Chancellor J. Travis Laster earlier this month asked for additional briefing from Pentwater, saying it would be helpful to know what "law professors say in favor of or against the declining percentage method."  Pentwater had asked the court to "carefully examine" the fee application, given "the sheer enormity of the fees sought."

Last week, Vice Chancellor Laster allowed a group of professors to submit a brief as amici curiae.  In the brief, five professors who said they "publish extensively on representative stockholder litigation" argued that a fee award equal to 15% of the settlement amount is warranted, rather than the 28.5% class attorneys seek.  A $150 million award would "adequately" compensate counsel, they said.  But in a filing, the lead plaintiff Steamfitters Local 449 Pension Plan's counsel argued that the court "should reject objectors' groundless arguments" and also toss aside the professors' argument.

Pentwater and the other objectors "do not address the court's many decisions adopting similar or larger fee percentages, the reasonableness of plaintiff's counsel's implied hourly rate, or the risk plaintiff's counsel incurred expending tens of thousands of hours and millions of dollars prosecuting this enormously complex case," the filing asserts.  Those objecting to the fee request also didn't "identify anything plaintiff's counsel could have done to litigate this case more effectively or efficiently," the filing said.

"Instead, objectors demand a lower fee percentage because of the settlement's sheer value," it said.  "Delaware courts have expressly rejected this approach, and for good reason: It fails to account for the greater risk in larger cases not settled early in litigation, and to properly reward outstanding results in the face of that risk; it creates perverse incentives for plaintiffs' counsel; and it defies the market among sophisticated parties negotiating fee arrangements, which seldom use a declining fee percentage (and more often have an increasing one)."  Nothing in the professors' brief "warrants reducing" the requested fee award, and the professors and objectors omitted "scholarship questioning the practice of discounting fee awards in mega-fund settlements," the class attorneys said.

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