In re IndyMac Mortgage-Backed Securities Litigation
In re IndyMac Mortgage-Backed Securities Litigation
Opinion of the Court
MEMORANDUM OPINION
This action concerns mortgage pass-through certificates (the “Certificates”) issued by IndyMac MBS, Inc. in several offerings pursuant to multiple registration statements and related prospectuses and prospectus supplements (the “Offering Documents”).
The parties filed a stipulation of settlement on September 11, 2014,
The Request for Attorneys’ Fees and Expenses
Eight law firms that served as counsel for plaintiffs
In addition, counsel,seek reimbursement of $2.99 million in litigation expenses. The two lead plaintiffs separately request reimbursement of costs and expenses of $27,725 relating to their participation in a mediation and Rule 30(b)(6) depositions.
Discussion
I. Legal Standards
Rule 23(h) permits the Court to “award reasonable attorney’s fees and nontaxable costs” in a certified class action. The decision as to what constitutes a reasonable award rests in the sound discretion of the Court.
In evaluating the reasonableness of a proposed fee, a court may elect either the “percentage of the fund” or the “lodestar” method.
While the framework for scrutinizing fee awards is clear, the waters quickly muddy. Neither the lodestar nor the percentage method closely aligns the incentives of the class and those of its attorneys. Focusing on the lodestar encourages investment of needless hours, while the percentage of the fund method can generate egregiously high fees for the lawyers and encourage
“It is common knowledge that almost all securities class actions are settled. Those that are settled typically are resolved on terms pursuant to which any fee award comes out of the overall settlement fund and thus is of no concern to the defendant and its counsel. The courts asked to approve these fees thus are left without any effective adversarial testing of the claimed lodestar except in rare cases.... In consequence, courts in the position in which this one finds itself are left pretty much at sea, aided however by the principles that (1) the Court is a fiduciary for the class members who ultimately pay any fee, (2) the class lawyers’ interests at this stage diverge sharply from those of the class members, (3) it is the lawyers who bear the burden of justifying the size of the award they seek at their clients’ expense, and (4) the risk of non-persuasion is with those lawyers.”23
In the final analysis, then, the Court’s determination of what constitutes a reasonable fee rests on its own experience twenty-four years in practice, including the litigation of securities cases generally and class actions in particular, and more than twenty years on the bench.
For reasons that will appear, the Court finds that the requested fee of $44.89 million is unreasonably high. Instead, the Court approves an aggregate fee award of approximately $28.48 million, a figure at which it arrives by cutting that portion of the aggregate lodestar attributable to discovery costs by 25 percent and by adopting reduced multipliers. The bottom-line award is still over 115 percent of counsel’s original lodestar and, in the Court’s view, strikes a more salutary balance between the interests of the class and the attorneys than the fee proposed by counsel. Thus, counsel will be rewarded generously.
II. The Requested Fee Award Would Be an Unreasonably High Percentage of the Fund
The Court begins in this case by considering the proposed $44.89 million fee as a percentage of the fund.
Plaintiffs’ counsel argue that the proposed fee, which would amount to 13 percent of the $346 million settlement fund, would be “modest and very much on the low end of percentage fee awards by other courts in similar [mortgage-backed securities (“MBS”) ] and securities litigation.”
While comparisons to fee awards in similar cases can be helpful, their utility here
Counsel do bring to the Court’s attention at least one such authority — a 2014 report regarding trends in securities litigation.
Another study, also published in the Journal of Empirical Legal Studies, reports somewhat more conservative findings.
How, then, to reconcile these different benchmarks? The Court ultimately concludes, in light of its own experience
III. Consideration of the Goldberger Factors
Irrespective of whether a court adopts the percentage of the fund or the lodestar approach, it must assess the six factors delineated jn Goldberger,
(1) Counsel’s time and labor. Plaintiffs’ counsel argue that their labor on this case was intensive and state that it was not until after class certification and “extensive fact discovery” that negotiations led to a settlement.
(2) The magnitude and complexity of the action. Counsel assert that the complexities of this case were myriad. The case involved over 50 offerings based on more than 74,000 loans. Those 50 offerings in turn involved 465 certificates, each of which arguably might have required expert proof as to valuation.
(3) The litigation risks involved. Counsel assert that litigation risks in this case were high, principally because Indy-Mac is insolvent and the underwriter defendants had viable affirmative defenses. They argue also that evidence as to proof of falsity would have been complex and required expert testimony, and they highlight the parties’ disagreement over the proper calculation of damages.
(4) The quality of class counsel’s representation. The Court is satisfied that class counsel litigated this case effectively. Moreover, the Court is mindful that this is the second largest MBS settlement on record and the largest reported settlement against underwriters in the absence of a solvent issuer,
(5) The requested fee in relation to the settlement. Counsel assert that lead plaintiffs, who are “sophisticated institutional investors,”
(6) Public policy considerations. Counsel contend that public policy supports class actions ending in settlement and fee awards sufficient to encourage plaintiffs’ counsel to bring future actions.
The Court has considered all of the Goldberger factors and is confident in its conclusion that an award between eight and ten percent of the settlement fund is appropriate.
TV. The Lodestar Cross-Check Confirms that the Proposed Fee Is Too High
Counsel helpfully have adopted a common format for the presentation of their time records that distinguishes hours billed by category of task. These categories include (1) investigations and factual research, (2) discovery, (3) pleadings and pretrial motions (including legal research), (4) court appearances, (5) settlement, (6) litigation strategy and analysis, (7) class certification issues, and (8) appeal issues.
The aggregate lodestar is built upon hourly rates between $210 and $420 for associates and between $410 and $835 for partners,
As to hours expended, however, the Court has concerns — particularly as it relates to hours spent on discovery. Counsel report that they devoted 32,658 hours to discovery, a figure amounting to nearly 60 percent of all hours spent on this case. Figure 1 below helps illustrate the extent to which work on discovery drove the total number of hours.
Counsel have attempted to document exactly what tasks underlay this figure.
The Court therefore makes the following two adjustments to counsel’s proposed fee. First, it exercises its discretion to cut “sur-plusage” on a percentage basis by reducing the portion of each firm’s lodestar attributable to discovery by 25 percent.
To be sure, these cuts represent “rough justice [rather than] auditing perfection.”
V. The Request for Reimbursement of Expenses
Plaintiffs’ counsel seek $2.99 million in reimbursement of expenses. The Court has reviewed this request and finds nothing objectionable. Counsel’s request is granted.
Lead plaintiffs, the Wyoming State Treasurer and the Wyoming Retirement System, further request reimbursement of costs and expenses of $27,725. These expenses relate to preparation for a mediation, attending the mediation, and preparing for (and attending) Rule 30(b)(6) depositions.
As a colleague of mine recently articulated, it is totally unclear “why a party who chooses to bring a lawsuit should be compensated for time expended in appearing at a deposition taken in order to insure that [he or she] is actually capable of fulfilling his statutory obligations, or responding to document requests, or performing what are essentially duplicative
Conclusion
The Court grants the motion for attorneys’ fees and reimbursement of expenses [DI 548] in the aggregate amount of $31,469,489.61, which' is broken, down by law firm in Table 2 below. Lead plaintiffs’ request for reimbursement of fees and expenses is denied.
SO ORDERED.
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Table 1: Revised Fee Awards
Proposed Adjusted Proposed Adjusted Approved _Firm_Lodestar_Lodestar_Multiplier_Multiplier Fee Award
Berman DeValerio $18,212,228.75 $15,712,306.13 1.9196_1.36784 $21,491,920.82
Cohen Milstein $1,555,128.75 $1,216,704,38 1.61_1,244_$1,513,580.26
Cohen Plaeitella_$254,405.00 $238,860.75 1.61_L244_$290,922,77
Kohn Swift_$1,680,367.00 $1,481,834.00 1.61_1.244 $1,843,401.50
Lieff Cabraser_$964,430.00 $940,463.00 1.61_1.244 $1,169,935.97
Schnader Harrison $264,038.00 $248,671.88' 1.32_1.128 $280,501.88
Wolf Haldenstein_$857,860,00 $823,952.88_L61_1.244_$1,024,997.38
Zwerling Sehachter $779,912.00 $764,535.25 1.32_L128_$862,395.76
Total$24,568,369.50 $21,422,328.27 1.83 (blended) 1.33 (blended) $28,477,656.33
Approved Approved Total Award of _Firm_Fee Award Reimbursements Fees and Expenses
Berman DeValerio_$21,491,920.82_$2,413,853.36_$23,905,774.18
Cohen Milstein_$1,513,580.25_$41,593.31_$1,555,173.56
Cohen Placitella_$290,922.77_$25,047.37_$315,970.14
Kohn Swift_$1,843,401.50_$215,734.79_$2,059,136.29
Lieff Cabraser_$1,169,935.97_$167,036.55_$1,336,972.52
Schnader Harrison_$280,501.88_$689.75_$281,191.63
Wolf Haldenstein_$1,024,997.38_$117,430.23_$1,142,427.61
Zwerling Schachter_$862,395.76_$10,447.92_$872,843.68
Total$28,477,656.33$2,991,833.28$31,469,489.61
. See Second Am. Consolidated Compl. [DI 337] ¶¶ 1, 6.
. 15 U.S.C. §§ 77k(a), 771(a)(2), 77o.
. DI 536-1; see also DI 539-1 (amended stipulation of settlement).
. DI 565.
. DI 539-1 ¶ l(w).
. See DI 410 (approving settlement); DI 365-1 ¶ 1 (11) (specifying the $6 million payment).
. See Mem. in Support of Motion for Atty's’ Fees [DI 549] at 1 & n. 4.
. DI 548.
. The eight law firms are (i) Berman DeValer-io, (ii) Cohen Milstein Sellers & Toll PLLC ("Cohen Milstein”), (iii) Cohen, Placitella & Roth, P.C. ("Cohen Placitella”), (iv) Kohn, Swift & Graf., P.C. ("Kohn Swift”), (v) Lieff Cabraser Heimann & Bernstein, LLP ("Lieff Cabraser”), (vi) Schnader Harrison Segal & Lewis, LLP ("Schnader Harrison”), (vii) Wolf Haldenstein Adler Freeman & Herz LLP ("Wolf Haldenstein”), and (viii) Zwerling, Schacter & Zwerling, LLP ("Zwerling Schac-ter”).
.See Decl. of Nicole Lavallee [DI 556] Ex. A ("Proposed Allocation of Attorneys’ Fees and Expenses”).
. DI 549 at 12-13.
. Id. at 14.
. See Decl. of Elizabeth Anderson [DI 551-3]; Decl. of Benjamin Brandes [DI 551-4]. The Wyoming State Treasurer seeks compen
. In re World Trade Ctr. Disaster Site Litig., 754 F.3d 114, 126 (2d Cir. 2014); see also Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000) (citing Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 172 (2d Cir. 1998)).
. McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 416 (2d Cir. 2010) (quoting Goldberger, 209 F.3d at 47-48).
. City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1099 (2d Cir. 1977), abrogated on other grounds by Goldberger, 209 F.3d at 43 (in awarding fees, the district court acts as a “fiduciary who must serve as a guardian of the rights of absent class members”).
. Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994).
. See McDaniel, 595 F.3d at 417 ("[I]t remains the law in this Circuit that courts ‘may award attorneys' fees in common fund cases’ ” under either method) (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005)).
. Goldberger, 209 F.3d at 47.
. Id. at 50.
. In re Citigroup Inc. Bond Litig., 988 F.Supp.2d 371, 373 (S.D.N.Y. 2013).
. McDaniel, 595 F.3d at 419; see also In re Auction Houses Antitrust Litig., 197 F.R.D. 71, 76-78 (S.D.N.Y. 2000) (exploring the problems of perverse incentives and fee awards in greater depth).
. In re Weatherford Int’l Sec. Litig., No. 11-cv-1646 (LAK), 2015 WL 127847, at *1 (S.D.N.Y. Jan. 5, 2015).
. DI 549 at 8.
. See Decl. of Patrick Egan [DI 550] Ex. C (order in Maine State Ret. Sys. v. Countrywide Fin. Corp., No. 10-cv-302 (C.D.Cal.)); id. Ex. D (order in Pub. Emps.’ Ret. Sys of Miss. v. Merrill Lynch & Co., Inc., No. 08-cv-10841 (S.D.N.Y.)); id. Ex. E (order in N.J. Carpenters Vacation Fund v. Royal Bank of Scot. Grp., No. 08-CV-5093 (S.D.N.Y.)); id. Ex. F (order in Plumbers’ & Pipefitters’ Local # 562 Supp’l Plan & Trust v. J.P. Morgan Acceptance Corp. I, No. 08-cv-1713 (E.D.N.Y.)); id. Ex. G (order in In re Wells Fargo Mortgage-Backed Certificates Litig., No. 09-cv-1376 (N.D.Cal.)).
. See DI 550 Ex. C.
. Sakiko Fujiwara v. Sushi Yasuda Ltd., 58 F.Supp.3d 424, 436, 2014 WL 5840700, at *8 (S.D.N.Y. 2014) ("By submitting proposed orders masquerading as judicial opinions, and then citing to them in fee applications, the class action bar is in fact creating its own caselaw on the fees it is entitled to.... No wonder that ‘caselaw’ is so generous to plaintiffs’ attorneys.”).
. See In re Visa Check/Mastermoney Antitrust Litig., 297 F.Supp.2d 503, 525 (E.D.N.Y. 2003) (awarding a fee of 6.511 percent of the settlement fund); In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 486 (S.D.N.Y. 1998) ("In cases where a class recovers more than $75-$200 million ... fees in the range of 6-10 percent and even lower are common.”) (citing examples).
. DI 550 ¶ 163 & Ex. H (citing Renzo Comol-li & Svetlana Starykh, NERA Economic Consulting, Recent Trends in Securities Class Action Litigation 2013 Full-Year Review (2014) ("NERA Study”)).
. Id. at 34.
. Id.
. Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical Legal Studies 811 (2010).
. Id. at 812.
. Id. at 839 (table 11).
. Id.; see also NERA Study at 34 (“the percentage of fees shrinks as settlement size grows”).
. Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees and Expenses in Class Action Settlements 1993-2008, 7 J. Empirical Legal Studies 248 (2010).
. Id. at 251.
. Id. at 264-65 (table 7 and accompanying discussion).
Of course, the size of a settlement tells us little about the success of the lawyers in achieving compensation for the class without knowing also what could have been recovered if the case had been tried to verdict and, in addition, the likelihood of such a result.
. Id. at 260 (table 4).
. Id. 265 (table 7).
. The Court’s experience includes In re Auction Houses Antitrust Litigation, 197 F.R.D. 71, a case in which the position of lead class counsel was selected in part by an auction in which (1) the Court fixed the compensation of the lead counsel as 25 percent of any class recovery in excess of "X,” and (2) competing counsel submitted bids for the "X” that they would offer. The larger the “X” bid, the more favorable to the class the bid was. In the event, the case settled for $512 million. The successful bidder in the lead counsel auction, who had "bid” that the class would receive the first $405 million of any recovery free of any attorneys’ fees, received a fee of 25 percent of the excess over $405 million, which was $26.75 million. Thus, in a competitive environment, the successful bidder agreed to a compensation arrangement that ultimately produced a fee equal to 5.2 percent of the recovery.
While Auction Houses is distinguishable from this case, the fact that able counsel were prepared to undertake representation of that class on terms that ultimately yielded a fee of 5.2 percent of a recovery more or less of the same order of magnitude is interesting.
. See, e.g., In re Colgate-Palmolive Co. ERISA Litig., 36 F.Supp.3d 344, 349-51 (S.D.N.Y. 2014); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 991 F.Supp.2d 437, 444 (E.D.N.Y. 2014).
. See, e.g., In re Gilat Satellite Networks, Ltd., No. 02-cv-1510 (CPS), 2007 WL 2743675, at *18 (E.D.N.Y. Sept. 18, 2007) (an effective hourly rate of $602 for all personnel was "significant" if not quite excessive); In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., No. 02-mdl-1484 (JFK), 2007 WL 313474, at *23 (S.D.N.Y. Feb. 1, 2007) (describing an effective hourly rate of $1,193.51 per hour as "exorbitant”).
. See, e.g., In re Indep. Energy Holdings PLC, No. 00-cv-6689 (SAS), 2003 WL 22244676, at *6 (S.D.N.Y. Sept. 29, 2003) ("[T]he percentage used in calculating any given fee award must follow a sliding-scale and must bear an inverse relationship to the amount of the settlement. Otherwise, those law firms who obtain huge settlements, whether by happenstance or skill, will be over-compensated to the detriment of the class members they represent.”).
. Wal-Mart, 396 F.3d at 121 (under either method, "the Goldberger factors ultimately determine the reasonableness of a common fund fee.”) (internal quotation marks omitted).
. McDaniel, 595 F.3d at 423 (citing Goldberger, 209 F.3d at 50).
. DI 549 at 4.
. Id. at 17-18.
. Id. at 19-20.
. Goldberger, 209 F.3d at 52 (“At least one empirical study has concluded that ‘there appears to be no appreciable risk of non-recovery’ in securities class actions, because ‘virtually all cases are settled.’ ”) (citing Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stan. L.Rev. 497, 578 (1991)).
. See DI 337 ¶9 ("Indeed, a February 26, 2009 report issued by the Office of Inspector General ... of the U.S. Department of Treasury ... confirmed that many of these undisclosed or untrue facts were part of long, systematic problems at IndyMac.”).
. Cf. In re Citigroup Inc. Sec. Litig., 965 F.Supp.2d 369, 399 (S.D.N.Y. 2013) ("[T]he factors that traditionally render securities cases most likely to survive a motion to dismiss and, in turn, to settle — such as prior government investigations — are absent here.”).
. Mem. in Support of Final Approval of Settlement [DI 547] at 1.
. See supra note 39.
. DI 549 at 23.
. See Sushi Yasuda, 58 F.Supp.3d at 436, 2014 WL 5840700, at *8 (citing discussions in cases and articles).
. DI 549 at 24.
. See McDaniel, 595 F.3d at 426 (stating that the Second Circuit has been "loath to disturb the determinations of district courts” with respect to findings regarding public policy considerations).
. In re Visa Check/Mastermoney Antitrust Litig., 297 F.Supp.2d at 525.
. DI 549 at 12.
. Id.
. All figures and tables appear at the conclusion of this opinion.
. See DI 550 ¶¶ 32-68.
. Id. ¶ 35.
. Id. ¶ 37.
. Id. ¶ 68.
. DI 549 at 9.
. Plaintiffs’ counsel, who of course have the burden here, were at liberty to demonstrate that the nature of the eleven million documents was quite different and required the enormous investment of time that was recorded.
. Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994).
. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).
. See Kirsch, 148 F.3d at 173 ("Flours that are excessive, redundant, or otherwise unnecessary are to be excluded, and in dealing with such surplusage, the court has discretion to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.”) (citation omitted); see also In re Warner Chilcott Ltd. Sec. Litig., No. 06-cv-11515 (WHP), 2009 WL 2025160, at *4 (S.D.N.Y. July 10, 2009) (applying a multiplier less than one in part to
. Fox v. Vice, 563 U.S. 826, 131 S.Ct. 2205, 2216, 180 L.Ed.2d 45 (2011).
. See McDaniel, 595 F.3d at 411 ("[A] fee award should be based on scrutiny of the unique circumstances of each case, and a jealous regard to the rights of those who are interested in the fund.”) (internal quotation marks omitted).
. In re Weatherford Int’l Sec. Litig., 2015 WL 127847, at *2.
. See DI 551-3; DI 551-4.
. See Order, In re Parmalat Sec. Litig., No. 04-cv-30 (LAK) (S.D.N.Y. Mar. 2, 2009) [DI 1055] (denying request for award of costs and expenses to lead plaintiffs); In re NTL Inc. Sec. Litig., No. 02-cv-3013 (LAK), 2007 WL 1294377, at *10-11 (S.D.N.Y. May 2, 2007) (adopting magistrate judge’s recommendation that a request for reimbursement of lost wages be denied).
. Order ¶ 17, No. 11-cv-796 (LAK) (S.D.N.Y. Sept. 30, 2014) [DI 119],
. City of Providence v. Aeropostale, Inc., No. 11-cv-7132 (CM), 2014 WL 1883494, at *19 (S.D.N.Y. May 9, 2014).
Reference
- Full Case Name
- In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
- Cited By
- 4 cases
- Status
- Published