Smilovits v. First Solar Incorporated et al

Filing 750

ORDER - IT IS ORDERED: 1. Class Counsel's application for additional attorneys' fees (Doc. 737 ) is denied. Money in the "First Solar Securities Class Action Fee and Expense Account" shall be remitted pro rata to the opt-out plaintiffs from whose settlements it was withheld. 2. The motion to seal (Doc. 742 ) is granted. (See document for complete details). Signed by Senior Judge David G Campbell on 9/4/20. (SLQ)

Case 2:12-cv-00555-DGC Document 750 Filed 09/08/20 Page 1 of 2

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Smilovits, Individually and on Behalf
of All Others Similarly Situated,

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Plaintiff,

No. CV-12-00555-PHX DGC
ORDER

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v.
First Solar, Inc., Michael J. Ahearn, Robert
J. Gillette, Mark R. Widmar, Jens
Meyerhoff, James Zhu, Bruce Sohn and
David Eaglesham,
Defendants.

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Class Counsel Robbins Geller Rudman & Dowd LLP moves for an award of

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$1,900,000 in attorneys’ fees from the $19,000,000 settlement obtained by opt-out

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Plaintiffs Maverick Fund, L.D.C., Maverick Fund USA, Ltd., Maverick Fund II, Ltd.,

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Maverick Neutral Fund, Ltd., Maverick Neutral Levered Fund, Ltd., Maverick Long Fund,

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Ltd., and Maverick Long Enhanced Fund, Ltd. (collectively, “Maverick”). The motion is

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fully briefed and oral argument was held today. The Court will deny the motion.

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The Court previously entered an order establishing a set-aside account for possible

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fee awards from opt-out settlements. Doc. 669. The Court stated that it would “make an

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independent determination of the reasonableness of fees to be awarded any counsel from

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the Account. Consistent with 15 U.S.C. § 78u-4(a)(6), the Court will ensure that the total

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attorneys’ fees and expenses awarded by the Court to Class Counsel, from any source

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Case 2:12-cv-00555-DGC Document 750 Filed 09/08/20 Page 2 of 2

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including the Account, shall not exceed a reasonable percentage of the amount of any

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damages and prejudgment interest actually paid to the Class.” Id. at 7.

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The Class Action settled for $350 million, and the Court awarded Class Counsel

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$65,905,000 in attorneys’ fees (18.83% of the settlement amount) and $5,263,516.69 in

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expenses, with interest. Doc. 731 at 2. The Court found these amounts fair, reasonable,

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and appropriate. Id. The Court learned from Class Counsel’s fee application, and noted in

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its order awarding fees, that “the precise amount of the recovery – 18.83% of the settlement

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– is dictated by the fee agreement negotiated at the beginning of this case between Lead

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Counsel and Lead Plaintiffs, which are sophisticated entities.” Doc. 731 at 3. Class

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Counsel received the maximum amount they were allowed under the fee agreement they

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negotiated.

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The Court concludes that the fees and expenses already paid to Class Counsel

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constitute “a reasonable percentage of the amount of any damages and prejudgment interest

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actually paid to the class.” 15 U.S.C. § 78u-4(a)(6). Class Counsel themselves established

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the reasonableness of this percentage in their agreement with Lead Plaintiffs. Because the

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PSLRA provides that “[t]otal attorneys’ fees and expenses awarded by the court to counsel

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for the plaintiff class shall not exceed” a reasonable percentage (id.), and Class Counsel

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themselves established the reasonableness of their percentage, the Court, in its discretion,

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will not award more. Class Counsel have been well and fully paid for the work they did in

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this litigation, including any work that may have benefitted Maverick.

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IT IS ORDERED:

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1.

Class Counsel’s application for additional attorneys’ fees (Doc. 737) is

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denied. Money in the “First Solar Securities Class Action Fee and Expense Account” shall

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be remitted pro rata to the opt-out plaintiffs from whose settlements it was withheld.

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2.

The motion to seal (Doc. 742) is granted.

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Dated this 4th day of September, 2020.

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