In re Bank of New York Mellon Corp. Forex Transactions Litigation
In re Bank of New York Mellon Corp. Forex Transactions Litigation
Opinion of the Court
MEMORANDUM OPINION ON MOTION FOR ATTORNEYS’ FEES
In early 2011, following the unsealing of certain qui tarn lawsuits,
Background
On March 29, 2012, the Court appointed as co-lead plaintiffs: (1) the State of Oregon, by and through the Oregon State Treasurer on behalf of the Common School Fund, and (2) the Oregon Public Employee Retirement Board, on behalf of the Oregon Public Employee Retirement Fund (collectively, “Oregon”).
As noted, lead counsel now move (on behalf of securities counsel) for an award of $45 million in attorneys’ fees and reimbursement of $1,616,575.69 in litigation expenses.
The application is supported also by a declaration of Frederick M. Boss, Deputy
*305 BLBG was also one of three firms appointed to the Plaintiffs’ Executive Committee in the Bank of New York Mellon multidistrict litigation. DI 103.
Discussion
Courts in this circuit have'broad discretion in evaluating the reasonableness of proposed attorneys’ fees drawn from a common fund. They may rely on either the “percentage of the fund” or the “lodestar” method.
This Court long, has favored the lodestar approach
In In re Cendant Corp. Litigation,
Cendant’s conclusion with respect to the significance of ex ante fee agreements was not uncritical. That case and its progeny warned of pay-to-play arrangements — arrangements “where a law firm makes campaign contributions to elected officials who control governmental pension funds and is selected as the fund ’ s lead counsel.”
This case raises concerns. Both BLBG and Stoll Berne made multiple contributions — as firms — to the campaigns of current or recent Oregon state treasurers and attorneys general. Most recently, BLBG, a New York based firm with no office closer to Oregon than San Diego, California, donated $2,000 to the reelection campaign of the current Oregon attorney general on August 16,2015,
The Court recognizes that Stoll Berne’s main office is in Oregon. Some of the contributions appear to have been relatively modest and, in some instances, were made some time ago.
There is no evidence before the Court that draws these assertions into question. Nor do defendants have any incentive to quarrel with the proposed fee, as they have no economic interest in how the $180 million settlement is divided among the class and the lawyers.
In this case, the Court is entirely satisfied that the Goldberger factors support the proposed award without regard to the fee agreements or Oregon’s position. There is no reason to question the hours devoted by the lawyers to this very hard fought case. The blended hourly rate is reasonable. The multiplier is appropriate.
Conclusion
For the foregoing reasons, the motion to approve the requested attorneys’ fees and expenses [12 MD 2335 DI 631, ll-cv-9175 01274] is granted. A separate order embodying this ruling will enter.
SO ORDERED.
. Commonwealth of Va., ex rel. FX Analytics v. The Bank of N.Y. Mellon Corp., No. CL-2009-15377, 2011 WL 321734 (Va. Cir. unsealed Jan. 21, 2011); State of Fla., ex rel. FXAnalytics v. The Bank of N.Y. Mellon Corp., No. 2009-ca-4140 (Fla. Cir. unsealed Feb. 7, 2011).
.Se. Pa. Transp. Auth. v. The Bank of N.Y. Mellon Corp., 12-CV-3066; Int’l Union of Operating Eng’rs, Stationary Eng’rs Local 39 Pen
. Carver v. The Bank of N.Y. Mellon, 12-cv-9248; Fletcher v. The Bank of N.Y. Mellon, 14-cv-5496.
. United States v. The Bank of N.Y. Mellon Corp., 11-cv-6969.
. The People of the State of N.Y. ex rel. Schneiderman v. The Bank of N.Y. Mellon Corp., No. 11473512009 (N.Y. Sup. Ct. N.Y. Cnty.).
. L.A. Cnty. Emp. Ret. Ass’n ex rel. FX Analytics v. The Bank of N.Y. Mellon Corp., 12-cv-8990; In re Bank of N.Y. Mellon Corp. False Claims Act Foreign Exch. Litig., 12-cv-3064.
. La. Mun. Police Emps.’ Ret. Sys. v. The Bank of N.Y. Mellon Corp,, 11-cv-9175.
. DI 266-1; DI 281. (References to "DI" are taken from the docket sheet in 11-cv-9175.)
. DI 275 at 1.
. DI 39.
. DI 19-1.
. DI 39.
. DI 276 at ¶ 3 n, 1, The claims brought by Saxena White’s clients, Pompano Beach General Employees Retirement System and Laborers’ Local 235 Benefit Fund, were voluntarily dismissed with prejudice on March 23, 2015. DI 256.
. DI 275 at 1.
. See DI 276 at ¶ 234; DI 275 at 5,
. D1276-1 at 10-11.
. DI282.
. McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 417 (2d Cir. 2010).
. E.g., Freedman v. Weatherford Int’l Ltd., No. 12-CV-2121 (LAK), 2015 WL 7454142, at *1 (S.D.N.Y. Nov. 23, 2015); In re IndyMac Mortg.-Backed Sec. Litig., 94 F. Supp. 3d 517, 527-28 (S.D.N.Y. 2015); In re Weatherford Int’l Sec. Litig., No. (LAK), 2015 WL 127847, at *2 (S.D.N.Y. Jan. 5, 2015).
. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000).
. The six factors are ; " ‘(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation ; (3) the risk of the litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations. Id. at 50 (alteration omitted) (quoting In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig. 724 F.Supp. 160 163 (S.D.N.Y. 1989)).
. 264 F.3d 201 (3d Cir. 2001).
. Id. at 282.
. See In re AT&T Corp., 455 F.3d 160, 168-69 (3d Cir. 2006) (cautioning district courts “against affording the presumption [of reasonableness] too much weight at the expense of the court’s duty to act as a fiduciary guarding the rights of absent class members’ ”); see also In re Schering-Plough Corp. Enhance Sec.
. In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (per curiam).
. Id.
. See DI 282 at 1-2.
. In re AT&T, 455 F.3d at 168; accord In re Cendant, 264 F.3d at 270 n. 49 (“The concern is that an informal quid pro quo could develop in which law firms specializing in securities class actions would contribute to the campaign coffers of the elected officials who oversee those funds, and that, in exchange (and in the hopes of getting more contributions), those officials would use their control over the funds to select those firms to serve as lead counsel for cases in which the funds are the lead plaintiff.”)
. The problem of pay-to-play arrangements between'lead counsel and persons controlling public pension funds in securities class action lawsuits has been addressed by several scholars, journalists, and jurists. See. e.g., Stephen. J. Choi, el al., The Price of Pay to Play in Securities Class Actions, 8 J. Empirical Legal Stud. 650, 678 (December 2011) (concluding that "[t] he evidence presented here shows that the hard bargaining by state pens ion funds [for lower attorneys’ fees] largely disappears when decisionmakers for 'those funds receive political contributions-particularly when those contributions are large”); John C. Coffee, Jr., Accountability and Competition in Securities Class Actions: Why "Exit” Works Beller than Voice. 30 Cardozo L. Rev. 407, 422 (2008)(explaining‘ that "the common practice for the larger plaintiffs’ firms to entertain the officials of public pension funds (often lavishly) and to make political contributions to the elected public officials who'control the fund’s decision” has entrenched large plaintiffs’ firms and stifled market competition for class action counsel, to the detriment of class members); James D. Cox. et al., Does the Plaintiff Mailer? An Empirical Analysis Lead Plaintiff; in Securities Class Actions, 106 Colum. L, 1587, 1611-15 (2006) (describing the "odor of corruption” surrounding pay-to-play arrangements in securities class actions, and suggesting possible reforms, including (1) barring law firms that have made political contributions to governmental officials who can influence choice of counsel from representing government funds in securities cases, (2) placing counsel-selection decisions in the hands of
.Courts long have recognized the importance of curbing even the appearance of impropriety in cases involving dealings between political donors and government officials with whom they do business. See, e.g., Ognibene v. Parkes, 671 F.3d 174, 187 (2d Cir. 2011) (upholding certain New York City laws limiting campaign contributions from donors that had business dealings with the city, and recognizing that "[s]ince neither candidate nor contributor is likely to announce a quidpro quo, the appearance of corruption has always been an accepted justification for a campaign contribution limitations”); Yamada v. Weaver, 872 F.Supp.2d 1023, 1063 (D.Haw. 2012) (upholding Hawaii’s ban on direct campaign contributions from government contractors because it functions "to alleviate even the appearance of a connection (a quid pro quo) between a government contractor and a candidate for public office”), aff’d sub nom., Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015) (“Hawaii’s government contractor contribution ban serves sufficiently important governmental interests by combating both actual and the appearance of quid pro quo corruption.”).
. OJ 282-2 Attachment 1.
. Since 2008, BLBG, as a firm, made only the $2,000 contribution described above and a $10,000 contribution to the campaign of a former Oregon treasurer, who died nearly two years before BLBG was retained by then putative-lead plaintiff Oregon. Stoll Berne, as a firm, also donated $5,000 to the same campaign and $7,000 to the campaign of a former attorney general, all in 2008. 01282 at 2-3. Certain individuals from these firms donated to these campaigns as well. Id.
. See DI 282.
. DI 282-1 at 2, 8.
. See Goldberger, 209 F.3d at 52 ("Defendants, once the settlement amount has been agreed to, have little interest in how it is distributed and thus no incentive to oppose the fee.”); In re IndyMac, 94 F.Supp.3d at 522 (quoting In re Weatherford, 2015 WL 127847, at *1)).
.The requested fee is also the highest permitted by counsels’ ex ante fee agreements.
Reference
- Full Case Name
- IN RE: BANK OF NEW YORK MELLON CORP. FOREX TRANSACTIONS LITIGATION. This Document Relates to: ll-cv-9175 (LAK)
- Cited By
- 1 case
- Status
- Published