Chorny v. The Republic of Argentina
OPINION AND ORDER re: #222 FIRST MOTION for Attorney Fees . filed by Ruben Chorny, #213 MOTION for Attorney Fees Notice of Motion By Co-Lead Counsel for Award of Fees and Expenses.. filed by Ruben Chorny, #217 MOTION for Settlement Notice of Motion For Final Approval of Settlement. filed by Ruben Chorny: The court approves the settlements in these cases. Attorneys' fees of 30% of the class fund are awarded in the Seijas cases. The attorneys' fees in the Seijas cases are to be paid into escrow until the dispute regarding entitlement to the fees is resolved, and the court retains jurisdiction over that dispute. Attorneys' fees of 30% are awarded to Hagens Berman in Brecher. Brecher's application for a named plaintiff award of $5,000 is denied. (Signed by Judge Thomas P. Griesa on 4/27/2017) (jwh) Modified on 5/10/2017 (jwh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SILVIA SEIJAS, et al.,
THE REPUBLIC OF ARGENTINA,
SILVIA SEIJAS, et al.,
THE REPUBLIC OF ARGENTINA,
CESAR RAUL CASTRO,
THE REPUBLIC OF ARGENTINA,
DATE FILED: 4/27/2017
HICKORY SECURITIES LTD.,
THE REPUBLIC OF ARGENTINA,
ELIZABETH ANDREA AZZA, et al.,
THE REPUBLIC OF ARGENTINA,
ELIZABETH ANDREA AZZA, et al.,
THE REPUBLIC OF ARGENTINA,
THE REPUBLIC OF ARGENTINA,
RUBEN DANIEL CHORNY,
THE REPUBLIC OF ARGENTINA,
HENRY H. BRECHER, et al.,
THE REPUBLIC OF ARGENTINA,
OPINION & ORDER
This opinion considers the settlements reached in nine class action cases
against the Republic of Argentina (the “Republic”) arising out of the Republic’s
2001 default on bonds it issued. The lead plaintiffs bring these actions against
the Republic on behalf of themselves and other continuous holders of interests1
in particular bonds issued by the Republic.2
Lead plaintiffs in these long-standing cases petition the court for final
approval of the negotiated settlements. The attorneys representing the classes
also seek attorneys’ fees awards and reimbursement of expenses. Additionally,
the named plaintiff in Brecher requests an award of $5,000.
The court preliminarily approved the proposed settlements in Brecher and
in the Seijas cases3 in May 2016. Pursuant to the settlements, class members
The court will refer to holders of interests in bonds as “bondholders.”
The bonds in which class members hold interests, referred to throughout as
the “Seijas Class Bonds” and the “Brecher Class Bond” are defined as follows.
The Seijas Class Bonds are: Republic of Argentina 11% Global Notes due October
9, 2006, US040114AN02; Republic of Argentina 7% Global Notes due December
19, 2008, US040114GF14; Republic of Argentina 9.75% Global Notes due
September 19, 2027, US040114AV28; Republic of Argentina 11.75% Global
Notes due June 15, 2015, US040114GA27; Republic of Argentina 11% Global
Notes due December 5, 2005, US040114AZ32; Republic of Argentina 8.375%
Global Notes due December 20, 2003, US040114AH34; Republic of Argentina
Floating Rate L+0.8125 Global Notes due March 2005, XS0043120582. The
Brecher Class Bond is Republic of Argentina 9.25% Global Notes due July 20,
Seijas v. Republic of Argentina, 04-cv-400; Seijas v. Republic of Argentina, 04cv-401; Castro v. Republic of Argentina, 04-cv-506; Hickory Securities LTD v.
Republic of Argentina, 04-cv-936; Azza v. Republic of Argentina, 04-cv-937; Azza
v. Republic of Argentina, 04-cv-1085; Puricelli v. Republic of Argentina, 04-cv2117; and Chorny v. Republic of Argentina, 04-cv-2118 are collectively referred
to as the “Seijas cases,” as the classes have maintained the same counsel
throughout and have reached a unified settlement.
have submitted proof of claim forms demonstrating their interests in the Class
Bonds. The settlements will result in class funds comprised of 150% of the
outstanding principal of class members’ bonds. The class funds will amount to
$3,049,440 for the Brecher class.5 The terms of the settlements reached in
Brecher and in the Seijas cases are identical, varying only in the number and
value of claims submitted.
After full consideration of the settlements, the court now grants the
petitions for final approval of the settlements in the above-captioned cases. In
this opinion the court sets forth the basis for that approval, awards attorneys’
fees and expenses, and denies the petition for an incentive award for the named
plaintiff in Brecher.
The allegations in these cases are tied to bonds issued by the Republic.
After the Republic suffered an economic crisis, the Argentine government
declared a moratorium on payment of its sovereign debts on December 24, 2001
and stopped making scheduled payments on its bonds, triggering defaults on the
This amount is based on the submission of Seijas class counsel Diaz, Reus &
Targ (“Diaz Reus”) setting forth the total principal of agreed-upon claims
submitted before the November 15, 2016 deadline as $15,442,833.
This amount is based on the submission of Brecher class counsel Hagens
Berman Sobol Shapiro LLP (“Hagens Berman”) setting forth the total principal of
agreed-upon claims submitted before the November 15, 2016 deadline as
€1,853,200 and a conversion rate of €1/$1.097. The final value of the class fund
may continue to fluctuate based on the conversion rate, as set forth in the
settlement agreement between the parties.
Seijas and Brecher Class Bonds. Beginning in 2002, bondholders, including the
plaintiffs in Brecher and in the Seijas cases, filed lawsuits in this court.
The Republic invited bondholders to exchange their defaulted bonds for
newly issued bonds worth 25% to 29% of the original bonds’ value in 2005 and
again in 2010 (the “Exchange Offers”). While a number of bondholders
participated in the Exchange Offers, the named plaintiffs and class members in
these cases did not.
The Seijas cases were filed between January and March 2004. Brecher was
filed on December 19, 2006. Plaintiffs in these actions seek to enforce payment
and other rights with respect to the Seijas and Brecher Class Bonds.
Pursuant to Federal Rule of Civil Procedure 23(b)(3), the court certified the
Seijas classes in 2005, and the Brecher class in 2009. In all nine cases, the court
adopted a class definition that limited members to continuous holders—all
holders of Class Bonds who purchased or otherwise acquired interests in the
Class Bonds prior to the date the cases were filed, and who will continue to hold
those interests until the final judgments. The classes exclude (1) bondholders
who participated in either of the Exchange Offers; (2) bondholders who, for any
reason, fail to hold interests in the Class Bonds through the date of judgment
and settlement of the class action; (3) bondholders who initiated separate
proceedings to recover damages, whether in court or through any other dispute
(5) bondholders who filed a written notice requesting exclusion. The class
definition was designed to prevent the classes from being too fluid. See H.W.
Urban GmbH v. Republic of Argentina, No. 02 Civ. 5699, 2004 WL 307293, at *3
(S.D.N.Y. Feb. 17, 2004) (adopting the continuous holder definition in another
class action brought by bondholders against the Republic).
Notice of the pendency of the Seijas cases was published and disseminated
in 2007. The formal opt-out period ran through 2008. A number of potential
class members opted out of the Seijas cases during the initial opt-out period.
Notice of the pendency of the Brecher class action was disseminated in August
2011. Those holding interests in the Brecher Class Bond had a formal
opportunity to opt out during a 90-day period ending on October 31, 2011. No
holders of interests in the Brecher Class Bond requested exclusion from the
In addition to the formal procedure, potential class members had several
other opportunities to opt out by (i) filing a separate lawsuit or claim in
arbitration, (ii) accepting one of the Exchange Offers, or (iii) selling their interests
in the Seijas or Brecher Class Bonds at any time during the litigation.
These nine class action cases have been pending for over a decade.
Plaintiffs in the Seijas cases have conducted multiple rounds of discovery in
connection with class certification, and made numerous attempts to collect on
judgments against the Republic. Plaintiffs in all classes have moved for summary
judgment and prepared for evidentiary hearings to determine the value of the
damages sustained by class members. Moreover, the litigation has involved
arguments before the Second Circuit.
For many years, the Republic refused to negotiate with holders of interests
in the defaulted bonds and engaged in an “unprecedented, systematic scheme”
to make payments on external indebtedness other than the defaulted bonds.
See, e.g., Order, NML Capital Ltd. v. Republic of Argentina, No. 08-cv-6978
(S.D.N.Y. Feb. 23, 2012). As part of that scheme, the Republic enacted Law
26,017—the “Lock Law”—which prohibited the Republic from “conducting any
type of in-court, out-of-court or private settlement” with bondholders who could
have participated in the Exchange Offers. Then, in 2009, the Republic enacted
Law 26,547, which prohibited the Republic from giving any bondholders who
had filed lawsuits more favorable treatment than that offered to those who did
not do so. In 2016, both laws were repealed under President Macri’s
In February 2016, the Republic formally published a proposal (the
“Propuesta”) to outstanding holders of interests in certain defaulted bonds,
including the Class Bonds. See Propuesta, 5 de Febrero de 2016. The Propuesta
set forth a “Standard Offer,” which is open to all holders of interests in certain
defaulted bonds and provides for a cash payment equal to the original principal
of the bond plus 50% of that principal, classified as interest.
Since assuming office, President Macri has made a concerted effort to
resolve this outstanding litigation. Due to the diligent efforts of President Macri’s
administration, class counsel, and Special Master Daniel A. Pollack, Esq., the
parties in these class actions reached proposed settlements in May 2016.
The terms of the settlements in Brecher and the Seijas cases are identical.
Pursuant to the settlements, class members were required to submit proof of
claim forms to class counsel, who then submitted the forms to the Republic by
November 15, 2016.6 Under the settlements, class members will tender their
qualifying Class Bonds to the Republic, and the Republic will pay 150% of the
principal amount of the tendered Class Bonds into class funds. The Republic
has also agreed to cover $40,000 of the expenses for settlement notice in the
Seijas cases and $25,000 of the expenses for settlement notice in Brecher.
The court preliminarily approved the proposed settlements in Brecher and
the Seijas cases on May 27, 2016. At that time, the court also directed the parties
to begin the notice process. The approved notice included a description of the
settlement terms, an explanation of the claims procedure, the mechanism for
submitting claims, and a warning that class members would be bound by the
terms of the settlement.
Gilardi & Co. LLC (“Gilardi”) served as the administrator charged with
distribution of notice of the settlements and collection of claims. Gilardi
distributed notice in accordance with the plans approved in the court’s May 27,
2016 Order. In the Seijas cases, Gilardi mailed 6,247 claims packages to
potential class members and nominal holders.7 Gilardi mailed 3,192 claims
November 15, 2016 was the final date for submission of claims to the Republic.
Seijas, 04-cv-400, ECF No. 353; Brecher, 06-cv-15297, ECF No. 138. No claims
submitted after that date will be considered in this opinion.
Nominal holders are brokerages, custodial banks and other institutions that
hold securities as nominees for the benefit of their customers who are the
beneficial owners of the securities.
packages to potential Brecher class members and nominal holders. Gilardi
established a toll-free telephone number and websites dedicated to all nine cases
to further facilitate the notice and claims process. Notice was also published by
the Depository Trust Company.
In the Seijas cases, class members have submitted 122 accepted claims,
for a total of $15,442,833 in principal to date.8 A settlement fund based on those
claims would amount to approximately $23,164,249. In Brecher, class members
submitted 61 valid claims to date. The principal for the Brecher claims is
€1,853,200, which would result in a class fund of approximately $3,049,440.9
Class members’ participation in the claims process has been significant.
There have been no objections to the proposed settlement in Brecher. Only seven
Seijas class members filed objections, representing less than 6% of the Seijas
To the extent the parties agree to the inclusion of additional claims submitted
to Gilardi prior to the November 15, 2016 deadline, the parties are free to include
Pursuant to the Brecher settlement agreement, the final conversion rate is to
be set at a later date. For the purposes of this opinion only, the court will use
the conversion rate set forth in plaintiff’s November 1, 2016 submission—
€1/$1.097—to assess the fairness of the proposed settlement.
Timely objections were submitted by Miguel Flitt, Raúl O Tomassini, Omar
Santos Palermo, Ira Sohn, Javier Casas Scardino, and Gerardo Salome. Although
class member John H. Temple initially submitted a timely objection as well, his
objection was resolved through the extension of the date for claim submissions
to November 15, 2016. Frederico R. Martinez Trigueros submitted an untimely
objection. Without deciding whether the late objector has demonstrated
excusable neglect for his tardiness, the court will consider his objection in
determining whether to approve the proposed settlement. See In re Glob. Crossing
Sec. & ERISA Litig., 225 F.R.D. 436, 457 n.10 (S.D.N.Y. 2004).
Attorneys’ Fees and Expenses
The Seijas classes were originally represented by Saul Roffe, who worked
for Sirota & Sirota (“Sirota”) at the time, and Gillermo Gleizer. When the court
certified the classes in August 2005, Gleizer and Roffe were appointed as class
counsel. In November 2006, Proskauer Rose LLP (“Proskauer”) was added as colead class counsel. In 2007, Sirota ceased operations, but Roffe continued to
represent the Seijas classes.11 In February 2010, Gleizer joined the law firm of
Diaz, Reus & Targ, LLP (“Diaz Reus”), and in April 2010, Diaz Reus was
substituted for Gleizer as class counsel. Gleizer subsequently left Diaz Reus, and
ceased all involvement in the Seijas cases in July 2010. Proskauer, Roffe, and
Diaz Reus are currently listed as class counsel of record in the Seijas cases
(“Class Counsel of Record”).
Class Counsel of Record submitted a request for expenses, seeking
reimbursement of $914,513. Proskauer incurred $536,904.62 in expenses, Diaz
Reus incurred $230,610.58, and Roffe and Sirota incurred $146,998.60. Gleizer
is not seeking reimbursement for expenses.
Two separate requests for attorneys’ fees have been submitted in the Seijas
cases. First, Class Counsel of Record submitted a joint request for an attorneys’
fees award of 33.3% of the class fund, to be calculated after the deduction of
expenses. Proskauer, Roffe, and Diaz Reus submitted records reflecting the
Roffe and his firm are successors in interest to Sirota, and he asserts that he
is entitled to collect attorneys’ fees and expenses on behalf of Sirota.
hours worked by each firm and the resulting lodestar for each firm. Proskauer
reported 6,714 hours of work, with a resulting lodestar of $3,595,250. Roffe
states that he and Sirota billed 7,925 hours of work, with a resulting lodestar of
$3,767,847.50.12 Diaz Reus reported 7,947.2 hours of work, with a resulting
lodestar of $4,426,182. The combined lodestar for Seijas Class Counsel of Record
is just under $11.8 million.
Second, Gleizer has filed submissions supporting the request for a 33.3%
attorneys’ fees award, but requesting that he be awarded 25% of that fee, plus a
percentage of the remaining fee award “based on the proportionate hours
expended.” Gleizer has not submitted supporting records, but states that he
billed 1,673.75 hours at a rate of $850 per hour, with a resulting lodestar of
Seijas Class Counsel of Record maintain that Gleizer is not entitled to any
fees. On November 10, 2016, the court issued an order instructing the attorneys
who submitted attorneys’ fees requests to conduct good faith negotiations to
resolve the issue of Gleizer’s entitlement to attorneys’ fees in these cases. To the
court’s dismay, the attorneys have been unable to come to a resolution or submit
an agreed-upon proposal.
The court notes that the time records Roffe submitted at the court’s request
do not match the hours he previously reported. Compare ECF No. 333 Ex. B
(reporting 633.6 hours for the Law Offices of Saul Roffe) with ECF No. 375 Ex. B
(reporting only 620.2 hours for the Law Offices of Saul Roffe). The lodestar for
620.2 hours would be $310,100, bringing the overall lodestar for Class Counsel
of Record to $11,789,279.50.
The court is in receipt of objections to the requests for attorneys’ fees in
the Seijas cases from Miguel Flitt, Javier Casas Scardino, and Omar Santos
The Brecher class is represented by Hagens Berman. Hagens Berman
requests an attorneys’ fees award of 30% of the whole class fund. Based on the
estimated $3,049,440 class fund, an attorneys’ fees award of 30% would amount
to approximately $914,832. Hagens Berman has submitted a detailed account
of the hours worked and rates charged by its attorneys, which result in a lodestar
of $1,206,222. Hagens Berman also seeks reimbursement for expenses
amounting to $37,540.40.
On November 10, 2016, the court held a fairness hearing. Class Counsel
of Record in the Seijas cases, Gleizer, class counsel in Brecher, and counsel for
the Republic appeared at the hearing. Objecting class member Ira Sohn also
appeared. The court reserved decision.
Approval of the Settlement
Pursuant to Federal Rule of Civil Procedure 23(e), any settlement in a class
action requires court approval. Before approving a class action settlement, the
Class Counsel of Record initially anticipated that the settlement would result
in a larger class fund, and the value of the initial attorneys’ fees requested were
significantly higher based on the anticipated fund. The initial attorneys’ fees
request represented a lodestar multiplier of 3.
court must “carefully scrutinize the settlement to ensure its fairness, adequacy
and reasonableness.” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001).
The court must determine that the settlement is procedurally and substantively
fair, reasonable, and adequate. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d
96, 116–17 (2d Cir. 2005).
There is “a strong judicial policy in favor of settlements, particularly in the
class action context.” Id. at 116 (quoting In re PaineWebber Ltd. P’ships Litig.,
147 F.3d 132, 138 (2d Cir. 1998)). Public policy favors settlement in class actions
based on the reduction in litigation and related expenses and the risks inherent
in maintaining class action litigation over long periods of time. In re Glob.
Crossing, 225 F.R.D. at 455; Bano v. Union Carbide Corp., 273 F.3d 120, 129 (2d
Cir. 2001). These considerations are particularly strong in this longstanding legal
A settlement is presumed to be procedurally fair if it is the product of
meaningful discovery.” Wal-Mart, 396 F.3d at 116. All parties here have been
represented faithfully and competently by experienced counsel knowledgeable in
complex class actions. Class counsel and defense counsel are intimately familiar
with the issues presented by these decade-long disputes, and have dedicated
significant time, effort, and resources to reach the proposed settlement
agreements. Although there was some potential for concern regarding the
overlapping representation of the classes, see Seijas v. Republic of Argentina, 606
F.3d 53, 57 (2d Cir. 2010), the plaintiffs are no longer in competition with one
another to recover judgments, so the overlapping representation is no longer
cause for concern. The settlements in front of the court were reached through
prolonged negotiations facilitated by Special Master Daniel Pollack. Because “a
court-appointed mediator’s involvement in . . . settlement negotiations helps to
ensure that the proceedings were free of collusion and undue pressure,”
D’Amato, 236 F.3d at 85, the court has no doubt that the settlements in these
nine class actions are procedurally fair.
To evaluate the substantive fairness of a settlement, the court must look
at the totality of the circumstances in light of the facts of the particular case. In
re Glob. Crossing, 225 F.R.D. at 456; Thompson v. Metro Life Ins. Co., 216 F.R.D.
55, 61 (S.D.N.Y. 2003). The court considers the following nine factors set forth
in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), to determine
whether the settlement is substantively fair: (1) the complexity, duration, and
expense of additional litigation; (2) the class’s reaction to the settlement; (3) the
stage of the proceeding and the discovery completed; (4) the risks of establishing
liability; (5) the risks of establishing damages; (6) the risks of maintaining the
class action through trial; (7) the ability of the defendant to withstand a greater
judgment; (8) the range of reasonableness of the settlement amount in light of
the best possible recovery; and (9) the range of reasonableness of the settlement
amount in light of all attendant risks of litigation. Charron v. Wiener, 731 F.3d
241, 247 (2d Cir. 2013) (citing Grinnell, 495 F.2d at 463). Not every factor must
weigh in favor of settlement for the court to find that the settlement is fair,
reasonable, and adequate. In re Glob. Crossing, 225 F.R.D. at 456.
As set forth below, the court finds that, on the whole, the Grinnell factors
weigh in favor of approval of the settlements.
Complexity, Duration, and Expense of Additional
The litigation in these cases dates back more than a decade and has been
full of complex legal questions. The proposed settlements result in a tangible
present recovery without the risk and delay of trial, which strongly tips the scales
in favor of the settlements. See Charron v. Pinnacle Grp. N.Y. LLC, 874 F. Supp.
2d 179, 196 (S.D.N.Y. 2012), aff’d sub nom. Charron v. Wiener, 731 F.3d 241 (2d
Further, securing a judgment in these cases would require complex and
burdensome evidentiary hearings to establish damages. Puricelli v. Republic of
Argentina, 797 F.3d 213, 217 (2d Cir. 2015); Hickory Sec. Ltd. v. Republic of
Argentina, 493 F. App’x 156, 160 (2d Cir. 2012) (summary order). Quite possibly,
the evidentiary hearings into class damages would require an individualized
approach. Puricelli, 797 F.3d at 217. By achieving settlement in these cases,
class members will avoid the arduous process of pinning down the value of class
members’ claims, which can fluctuate due to the definition of the classes.
Continuing to litigate these cases would result in a long delay before any
recovery would be possible. If the classes successfully went through the process
of determining the value of the claims to obtain judgment, class members would
still need to recover on that judgment, which in these cases would be a lengthy
and costly process. Plaintiffs have already invested significant time and
resources unsuccessfully attempting to attach Argentine assets. Plaintiffs might
never succeed and, in any event, recovery could take years. During that delay,
the classes would continue to incur additional expenses, including costly travel
expenses and attorneys’ fees. The settlements will relieve the classes from having
to drag on this already decade-old litigation and from bearing the expense and
delay of intensive evidentiary hearings on damages. Therefore, this Grinnell
factor strongly supports approval of the settlements.
Reaction of the Classes
Next, the court considers the reaction of the classes. In accordance with
the plan approved by the court, Gilardi distributed notice of the proposed
settlements to potential class members and nominal holders in the Brecher and
Seijas cases between July and October 2016. The notice and approval process is
designed to solicit negative feedback regarding the proposed settlement.
Pinnacle, 874 F. Supp. 2d at 197. “A certain number of opt outs and objections
are to be expected in a class action.” Id. (internal citations omitted).
While courts in this Circuit have regularly approved settlements where
even a substantial portion of the class objects, id. at 197–98 (collecting cases),
these settlements do not present that situation. Rather, the classes have
generally reacted favorably. Only seven Seijas class members submitted
objections, representing less than 6% of class members who submitted claims.
In Brecher, there were no objections from class members. The low number of
objectors supports settlement approval. See, e.g., Wal-Mart, 396 F.3d at 118 (“If
only a small number of objections are received, that fact can be viewed as
indicative of the adequacy of the settlement.”); In re Glob. Crossing, 225 F.R.D.
at 457 (collecting cases in which settlements were approved over objections from
10–16% of class members). Although objecting Seijas class members—including
class member Ira Sohn who spoke at the fairness hearing—express legitimate
concern, they represent merely a fraction of the class members who have
submitted claims. The objectors’ concerns do not lead the court to conclude that
the majority of the class members are unsatisfied with the settlement.
Although the court has discretion to permit a second opt-out period, Fed.
R. Civ. P. 23(e)(3), the court declines to do so here. “Neither due process nor Rule
23(e)(3) requires . . . a second opt-out period.” Denney v. Deutsche Bank AG, 443
F.3d 253, 271 (2d Cir. 2006). Here, the opt-out notice for each class was welldesigned, thoroughly circulated, and adequate. The content of the notices was
sufficiently detailed to inform class members that their rights were at issue and
to provide them an opportunity to learn the full extent of this litigation. Because
the class definitions limit class members to continuous bond holders, class
members could have continued to exclude themselves from the classes by
participating in one of the Exchange Offers or by selling their bonds on the
secondary market. If class members did not wish to be bound by the settlement,
they were required to opt out at an earlier stage. See, e.g., Wal-Mart, 396 F.3d at
115. Class members had an unusual amount of flexibility in opting out of this
litigation up until the point of settlement and a further opportunity is not needed
to ensure the fairness of the settlements.
Stage of the Proceeding and Discovery Completed
The next factor the court considers to determine the substantive fairness
of the proposed settlements is the stage of the proceeding and the discovery
completed. This factor is designed “to assure the Court that counsel for plaintiffs
have weighed their position based on a full consideration of the possibilities
facing them.” In re Glob. Crossing, 225 F.R.D. at 458 (citations omitted). Because
these settlements were reached after class certification, they are not subject to
the additional scrutiny that would be required if the cases were settled before
class certification. Pinnacle, 874 F. Supp. 2d at 198. Where discovery has been
conducted in the course of the litigation and not just for settlement purposes,
this Grinnell factor weighs in favor of approving the settlement. See In re Marsh
& McLennan Cos., Inc. Sec. Litig., No. 04 Civ. 8144, 2009 WL 5178546, at *6
(S.D.N.Y. Dec. 23, 2009).
The advanced stage of this litigation and amount of discovery completed
in these cases weigh in favor of approval of the settlements. Plaintiffs’ counsel
investigated the relevant facts at length before even filing the complaints, which
supports approval of the settlements. See In re Glob. Crossing, 225 F.R.D. at 458.
The motion practice and certification processes in these cases required extensive
inquiry into the relevant facts. Therefore, the parties exchanged discovery and
expert reports in the course of litigation, not for the purpose of settlement.
Moreover, the lengthy duration of the litigation has provided counsel with
sufficient time and information to assess the settlement options. This Grinnell
factor therefore weighs in favor of approval of the settlements.
Risks of Establishing Liability, Establishing
Damages, and Maintaining the Class Action
The court must also consider the risks of establishing liability, establishing
damages, and maintaining these class actions through trial. These factors weigh
heavily in favor of approving the proposed settlements, particularly in light of the
uncertainty of the damages calculations, the difficulty of recovering on any
judgments obtained, and the significant risk that there would be no class
members remaining by the end of the litigation.
Although the Republic’s liability has not been seriously contested in this
litigation, the risks involved in maintaining the class actions through trial and
establishing damages outweigh that fact. First, these cases present complicated
class certification issues, which have been the subject of motions in this court
and appeals to the Second Circuit. See, e.g., Seijas, 606 F.3d 53. If these cases
were to continue, the classes would likely face renewed motions for
decertification. The class definitions allow potential class members to continue
to opt out as the litigation continues, threatening the classes’ ability to satisfy
the numerosity requirement for class certification. Second, as previously
discussed, even if the classes were able to maintain this class action and prove
liability, they would still face complex legal challenges, including the need to
individualized inquiries to receive judgments.
For years, the court has emphasized that the defaulted-bond litigation
against the Republic is unlikely to be resolved completely through litigation, see,
e.g., NML Capital, Ltd. v. Republic of Argentina, No. 14-cv-8601, 2016 WL 715732,
at *8–9 (S.D.N.Y. Feb. 19, 2016), because of the “substantial improbability that
judgment creditors could ever reach assets belonging to Argentina,” Seijas, 606
F.3d at 55. These settlements offer an opportunity for the classes to avoid the
uncertainty of collecting damages and present a viable way forward. Under the
proposed settlements, all class members stand to recover a portion—150% of the
principal less a portion of the attorneys’ fees and costs—of their damages
immediately, which weighs in favor of settlement approval. See Pa. Pub. Sch.
Emps.’ Ret. Sys. v. Bank of Am. Corp., 318 F.R.D. 19, 24 (S.D.N.Y. 2016) (finding
that immediate recovery of a portion of the class’s damages without trial or an
appeal weighs in favor of settlement).
By obtaining approval of these settlements, class members avoid
substantial risks, and gain the benefits of a simplified claims process, the
guarantee of securing damages, and a timely recovery of those damages. The
risks of further litigation strongly indicate that these settlements are fair and
Reasonableness in Light of Potential Recovery and
Attendant Risks of Litigation
“There is a range of reasonableness with respect to a settlement—a range
which recognizes the uncertainties of the law and fact in any particular case and
the concomitant risks and costs necessarily inherent in taking litigation to
completion.” Wal-Mart, 396 F.3d at 119. “[W]hen settlement assures immediate
payment of substantial amounts to class members, even if it means sacrificing
speculative payment of a hypothetically larger amount years down the road,
settlement is reasonable under this factor.” Pinnacle, 874 F. Supp. 2d at 201
The amount of the settlements here are within the range of reasonableness
in light of the best possible recovery in these cases. The classes’ potential
recovery is far from clear, even at this advanced stage of the litigation. The
process of determining class damages in these cases has been complex and
challenging due to the possibility that Class Bond holders acquired bonds after
the cases were filed and due to class members’ ability to continue excluding
themselves from the class definition. Any aggregate damages calculation would
have to account for those exclusions, Hickory Sec. Ltd., 493 F. App’x at 160,
making it difficult to accurately assess the classes’ potential for recovery.
More importantly, the court has never presumed that the classes would
be able to recover all of their damages. Rather, the court has emphasized the
substantial improbability that class members could reach the Republic’s assets
to satisfy judgments awarded by the court. Seijas, 606 F.3d at 55. Even
bondholders who secured judgments in court found it nearly impossible to
recover on those judgments outside of the settlement process. See NML Capital,
Ltd. v. Republic of Argentina, No. 14-cv-8601, 2015 WL 3542535, at *2 (S.D.N.Y.
June 5, 2015). Thus, settlement presents the best potential for recovery in these
class action cases against the Republic.
Although the settlements provide less compensation than the amount of
damages class members assert they have suffered, the monetary relief available
through the settlements falls well within the range of reasonableness in light of
the classes’ ability to recover through other means. The mere fact that the
“proposed settlement may only amount to a fraction of the potential recovery
does not, in and of itself, mean that the proposed settlement is grossly
inadequate and should be disapproved.” Grinnell, 495 F.2d at 455. Rather, the
certainty of the settlement amount “has to be judged in [the] context of the legal
and practical obstacles to obtaining a large recovery.” In re Glob. Crossing, 225
F.R.D. at 461. In these cases, those obstacles are many, including the significant
risk that any judgments obtained could not be collected. The Republic’s proposal
to settle for 150% of the bonds’ principal represents an “earnest effort to
negotiate,” NML Capital, 2016 WL 715732, at *7, and ensures immediate
monetary recovery. The settlements therefore represent a reasonable recovery on
behalf of the classes.
Having considered all of the Grinnell factors, the court makes its essential
finding that the proposed settlements are fair, reasonable, and adequate.
Costs & Expenses
Class counsel may be compensated for reasonable out-of-pocket expenses
upon request. Pa. Pub. Sch. Emps.’ Ret. Sys., 318 F.R.D. at 27 (citing In re
Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 131 (S.D.N.Y. 2009)).
The court must ensure that any requests are reasonable. Fed. R. Civ. P. 23(h).
When the expenses requested “reflect the typical costs of complex litigation
such as experts and consultants, trial consultants, litigation and trial support
services, document imaging and copying, deposition costs, online legal research,
and travel expenses, courts should not depart from the common practice in this
Circuit of granting expense requests.” Pa. Pub. Sch. Emps.’ Ret. Sys., 318 F.R.D.
at 27 (citations omitted).
Class Counsel of Record in the Seijas cases have submitted a joint request
for expenses of $914,513.80, which represents approximately 4% of the Seijas
class fund. Gleizer has not submitted a request for expenses.
The costs include (1) routine expenses, such as copying, printing,
transcripts, and court costs, (2) computer research, (3) travel expenses,
(4) translation services, and (5) telephone and communication fees. The bulk of
the expenses represent computer research fees, which are reimbursable, Arbor
Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 369 F.3d 91, 98
(2d Cir. 2004), and travel. Given the international nature of these cases, the
travel fees, translation services, and telephone charges are reasonable.
However, Diaz Reus’s overtime air conditioning charge for $1,372.61 is
unreasonable, particularly because the other firms have not submitted such
charges. The court will not award expenses to cover that charge. Furthermore,
the court is concerned that the professional fees incurred by Proskauer and Diaz
Reus, amounting to $36,661.89 ($16,761.89 by Proskauer and $19,900 by Diaz
Reus) are duplicative and unreasonably high. Neither Proskauer nor Diaz Reus
has provided an explanation as to what these services are or why the costs
associated with the services are so high. The expense reports of the Offices of
Saul Roffe, Sirota, and Hagens Berman all lack such costs. Therefore, the court
reduces the award of expenses for professional fees by $26,661.89, to $10,000.
Class Counsel of Record in the Seijas cases are to be reimbursed for $886,479.30
Hagens Berman seeks to be reimbursed for expenses amounting to
$37,540.40, which is about 1.2% of the class fund in Brecher. The expenses are
reasonable and reflect the typical costs of complex litigation, such as court fees,
copies, postage, and transcripts. The computer research costs Hagens Berman
incurred are reimbursable, id., and the travel expenses are reasonable in light of
the international nature of the case. Hagens Berman is therefore awarded
$37,540.40 for expenses.
All expenses shall be paid from the class funds in accordance with the
terms of the settlements.
Class counsel is entitled to collect reasonable attorneys’ fees, as
determined by the court. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d
Cir. 2000). Whether a fee is reasonable is within the discretion of the district
court. In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319, 355 (S.D.N.Y. 2005)
(citing Goldberger, 209 F.3d at 47). The court is required to conduct a “searching
assessment regarding attorneys’ fees.” McDaniel v. Cty. of Schenectady, 595 F.3d
411, 419 (2d Cir. 2010) (citing Goldberger, 209 F.3d at 52). The court must
“ensure that the interests of the class members are not subordinated to the
interests of . . . class counsel.” Pa. Pub. Sch. Emps.’ Ret. Sys., 318 F.R.D. at 24
(quoting Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir.
Attorneys’ fees may be calculated as a percentage of the class fund, by the
lodestar method, or using both approaches. Goldberger, 209 F.3d at 50. “[T]he
common fund doctrine permits attorneys whose work created a common fund
for the benefit of a group of plaintiffs to receive reasonable attorneys’ fees from
the fund.” Victor v. Argent Classic Convertible Arbitrage Fund L.P., 623 F.3d 82,
86 (2d Cir. 2010). The lodestar method is calculated by multiplying the hours
reasonably expended by class counsel by the reasonable market rate for the
lawyers’ services. In re WorldCom, 388 F. Supp. 2d at 355. A reasonable hourly
rate should align with the prevailing rates in the district in which the court sits.
Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). Therefore, “market
rates, where available, are the ideal proxy for compensation.” Goldberger, 209
F.3d at 52.
In the Second Circuit, district courts have discretion whether to calculate
attorneys’ fees using the percentage method or the lodestar method, McDaniel,
595 F.3d at 419, but are encouraged to use the percentage method and do a
“cross-check” with the lodestar calculation to ensure the fairness of the award,
Goldberger, 209 F.3d at 50. Where a percentage fee is on the higher end of the
range of reasonable fees but still represents a negative multiplier to the total
lodestar, there is “no real danger of overcompensation.” In re Initial Pub. Offering
Sec. Litig., 671 F. Supp. 2d 467, 515 (S.D.N.Y. 2009).
District courts in the Second Circuit are also required to assess the
reasonableness of attorneys’ fees under the factors set forth in Goldberger: (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 the representation; (5) the
requested fee in relation to the settlement; and (6) public policy considerations.
209 F.3d at 50.
As described below, a 30% attorneys’ fees award is reasonable in Brecher
and the Seijas cases given the length, complexity, and risk involved in this
Attorneys’ Fees Request in Brecher
Hagens Berman, class counsel in Brecher, requests attorneys’ fees of 30%
of the full class fund, which would amount to approximately $914,832. Hagens
Berman reports that it spent 3,000 hours in connection with Brecher, resulting
in a lodestar of $1,206,222. In support of this lodestar, Hagens Berman has
submitted a detailed account of the hours expended by and billing rates for those
who worked on the case.
In light of the Goldberger factors, the requested percentage is reasonable.
First, Hagens Berman represented the Brecher class through ten years of
litigation, expending 3,000 hours in connection with the case. This amount of
time and labor justifies the 30% attorneys’ fees award. Second, the magnitude
and complexities of the Brecher case support an award of 30%. In particular, the
class definition and the damages calculations for the class presented novel,
complex legal issues requiring lengthy discovery, experts, appeals to the Second
Circuit, and hearings. Despite these challenges, Hagens Berman continued
litigating on behalf of the class.
Most importantly, given the riskiness of this case, the requested 30% fee
is justified. “The risk of success [is] perhaps the foremost factor to be considered”
in determining a reasonable attorneys’ fees award. In re Marsh & McLennan Cos.,
Inc. Sec. Litig., 2009 WL 5178546, at *18 (quoting Goldberger, 209 F.3d at 54).
The risk of success is to be measured from the time the case is filed, not with
the benefit of hindsight. Goldberger, 209 F.3d at 55. At the outset of this
litigation, and for many years thereafter, the risk that the class members might
never recover on their claims was extremely high. Furthermore, the definition of
the class as continuous bondholders created a risk that the number of class
members would continue to shift, and that recovery of attorneys’ fees would
ultimately compensate Hagens Berman for only a fraction of the work it invested
in the case. Even when recovery seemed unlikely due to the Republic’s refusal
to negotiate with the class and enactment of laws preventing negotiations with
the class, Hagens Berman steadfastly continued to represent the class.
The settlement will result in an immediate recovery of monetary value in a
case where that recovery appeared unlikely for many years, particularly at the
commencement of the litigation. Although the value of the settlement may not
fully compensate class members for all their losses, the settlement represents a
better recovery than what those who participated in the Exchange Offers
received. Hagens Berman represented the Brecher class faithfully for a decade,
appearing before this court and the Second Circuit, advocating for a more
inclusive class definition, and filing for summary judgment. In assessing the
quality of class counsel’s performance, the court also looks to the quality of
defense counsel. See In re Glob. Crossing, 225 F.R.D. at 467 (citing In re Warner
Commc’ns Sec. Litig., 618 F. Supp. 735, 749 (S.D.N.Y. 1985)). The Republic was
represented by Cleary, Gottlieb, Steen & Hamilton LLP (“Cleary Gottlieb”) and
Cravath, Swaine & Moore LLP (“Cravath”)—two well-respected law firms—further
demonstrating the reasonableness of a 30% fee based on the quality of counsel’s
Finally, the court considers whether the fee awarded “adequately
encourage[s] class counsel to continue bringing cases of merit.” In re Initial Pub.
Offering Sec. Litig., 671 F. Supp. 2d at 511. Hagens Berman’s willingness to take
this case on a contingency basis in spite of the risks involved, and to continue
to represent the class even when success appeared unlikely, is a testament to its
commitment. The awarded fee will hopefully encourage Hagens Berman to do the
same in the future.
The requested attorneys’ fees award of 30% is within the range of
reasonable awards approved in this Circuit. See In re Hi-Crush Partners L.P. Sec.
Litig., No. 12 Civ. 8557, 2014 WL 7323417, at *12 (S.D.N.Y. Dec. 19, 2014)
(collecting cases). Given the length of time class counsel needed to wait to be
paid for its work, and the risk involved in continuing to actively represent the
classes when recovery seemed unlikely, an award of 30% is reasonable. However,
if the fee is calculated as a percentage of the total class fund, Hagens Berman
would be reimbursed for its reasonable expenses and be awarded a percentage
of their expenses. See In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d at
514. The court sees no justification for that result. Therefore, the requested
attorneys’ fees award will be calculated as a percentage of the net class fund—
that is, as a percentage of the fund after expenses have been deducted.
The lodestar cross-check affirms the reasonableness of Hagens Berman’s
attorneys’ fees request. Hagens Berman dedicated 3,000 hours of work to the
Brecher litigation, resulting in a lodestar of $1,206,222. The requested fee,
calculated as a percentage of the net settlement, amounts to approximately
$903,570, and represents a lodestar multiplier of .75. The fee requested will not
fully compensate Hagens Berman for its work, highlighting the reasonableness
of the fee. Therefore, Hagens Berman is awarded attorneys’ fees of 30% of the
net class fund.
Attorneys’ Fees for Class Counsel in the Seijas Cases
Attorneys’ Fees Award
All attorneys in the Seijas cases, including Gleizer, join in seeking an
attorneys’ fees award of 33.3% of the net class fund, which will amount to
approximately $7,418,497. The requested 33.3% fee represents a multiplier of
.62 of Class Counsel of Record’s reported lodestar.14 In support of this lodestar,
This lodestar does not account for Gleizer’s additional $1,705,737 in fees. The
court will assess the reasonableness of the fee using the lodestar cross-check
without including Gleizer’s lodestar because Class Counsel of Record disputes
Gleizer’s entitlement to recover fees and because Gleizer did not keep
contemporaneous records for all of the hours he billed or provide the court with
a detailed account of his hours as requested in the January 24, 2017 Order. The
court reserves decision on whether Gleizer is entitled to fees and, if so, the value
of the fees he is entitled to collect. See infra Section IV.B.2. In the event Gleizer
is entitled to fees and his records reflect a lodestar of $1,705,737.50, the
Class Counsel of Record has provided the court with a detailed account of the
hours and rates billed by each firm during the twelve-year litigation. For
comparison, Class Counsel of Record also provided records showing the hours
and rates charged by attorneys in related bond litigation brought against the
Republic in this court.
The class was notified of the request for an attorneys’ fees award of 33.3%
in accordance with the court’s order. Pursuant to Federal Rule of Civil Procedure
23(h)(1), notice of a motion by class counsel for attorneys’ fees must be served
on all parties and “directed to class members in a reasonable manner.” The court
is not aware of any effort to notify class members of Gleizer’s attorneys’ fees
request other than notifying Class Counsel of Record. However, Gleizer does not
seek an attorneys’ fees award in addition to that requested by Class Counsel of
Record. Rather, Glezier joins in seeking approval of the 33.3% attorneys’ fees
award submitted by Class Counsel of Record, of which the class was properly
notified. Additional notice to the class would be costly and unlikely to vindicate
any legitimate interest. Because class members had notice of the request for a
33.3% attorneys’ fees award, the court finds that further notice is not needed to
meet the obligations of Rule 23(h)(1).
Class members were provided an opportunity to object, and several class
members submitted objections to the court. As the objectors note, the lodestar
method has flaws—namely that it is difficult to assess the efficacy of each hour
attorneys’ fees awarded will compensate the attorneys for a smaller percentage
of their lodestar.
billed by class counsel, especially over a twelve-year period. For that exact
reason, the Second Circuit encourages trial courts to use the percentage method
to calculate fees, using the lodestar as a cross-check, Goldberger, 209 F.3d at
50, as the court will do here.
The requested attorneys’ fees of one-third of the net class fund in the Seijas
cases is on the higher end of the range of reasonableness. Although class counsel
certainly deserves to be awarded fees that reflect the time and effort invested in
these cases, the requested percentage of 33.3% is too high. In light of the
recovery achieved for the class members and objections from class members, a
30% attorneys’ fees award is more reasonable, as the court will now explain.
The lodestar cross-check confirms the reasonableness of a 30% attorneys’
fees award. That award will amount to approximately $6,683,330.91,
compensating Class Counsel of Record for about 57% of the nearly $11.8 million
lodestar. An award of 30% takes into account the length of time class counsel
needed to wait to be paid for their work in these cases and the risk they incurred
by continuing to actively represent the classes when the likelihood of recovery
seemed low. But the award also takes into account class members’ frustration
with the recovery achieved by class counsel because it will not fully compensate
counsel for the work they invested in these cases.
Applying the Goldberger factors further demonstrates the reasonableness
of a 30% attorneys’ fees award. First, class counsel expended significant time
and effort in representing these eight classes for twelve years, justifying a 30%
award. Class counsel spent more than 22,000 hours working on these cases, for
a combined lodestar of just under $11.8 million. Class counsel zealously argued
the complexities of the cases in this court and in the Court of Appeals. Class
counsel actively pursued recovery on behalf of the class members throughout
the litigation, seeking preliminary injunctions, the attachment of Argentine
assets, summary judgment, revised judgment, and modification of the class
definitions. In support of their efforts to secure judgment against the Republic,
class counsel responded to discovery requests, prepared expert reports,
conducted fact and expert witness depositions, identified opt outs, and oversaw
and administered the notice and claim submissions processes. Class counsel
pursued every avenue for recovery and demonstrated their expertise in
administering the settlement process by reviewing individual claims and
documentation. Class counsel’s extraordinary efforts justify a fee of 30%.
Second, the magnitude and complexity of these cases support the 30%
attorneys’ fees award. As the record indicates, the class definitions and the
calculation of damages presented complex legal issues. Class certification and
the calculation of damages required lengthy briefing, detailed factual
development, and preparation for evidentiary hearings. This litigation spanned
multiple continents. Thus, the cases required sophisticated and knowledgeable
demonstrating the reasonableness of a 30% attorneys’ fees award.
Most importantly, the third Goldberger factor—the risk of success—weighs
heavily in favor of an attorneys’ fees award of 30%. See In re Marsh & McLennan
Cos., Inc. Sec. Litig., 2009 WL 5178546, at *18 (quoting Goldberger, 209 F.3d at
54). Recovery on the class claims was far from certain at the outset of this
litigation, especially in light of the Republic’s steadfast refusal to pay class
members, refusal to negotiate, and enactment of laws designed to prevent
payment to all outstanding bondholders. The obstacles to obtaining and
recovering on judgments in these cases were significant because of the difficulty
in determining class damages and the Republic’s status as a sovereign nation
with limited attachable assets. Counsel took the risk that they would never be
compensated for their work due to the possibility that the classes would never
be able to recover from the Republic. No matter how unlikely the prospects of
recovery, class counsel continued to bear these risks for over a decade.
The fourth Goldberger factor—the result achieved and quality of legal
services provided—supports reducing class counsels’ requested fee of 33.3% to
30%. The quality of the legal services provided is demonstrated by the fact that
the settlement will result in an immediate monetary recovery to class members,
an outcome that was far from guaranteed at the start of the litigation. “The
quality of opposing counsel is also important in evaluating the quality of
plaintiffs’ counsels’ work.” In re Glob. Crossing, 225 F.R.D. at 467 (quoting In re
Warner Commc’ns Sec. Litig., 618 F. Supp. at 749). The Republic has been
represented vigorously at every stage of this litigation by some of the nation’s
leading law firms, including Cleary Gottlieb and Cravath. The quality of the
Republic’s representation reflects positively on class counsel’s performance. But
the “quality of representation is best measured by results.” Goldberger, 209 F.3d
at 55. The settlements here represent a significant accomplishment on behalf of
the class in comparison to the Exchange Offers, but they still represent the same
recovery as the Republic offered to other bondholders in the Propuesta. In light
of this recovery, an award of 33.3% of the class fund is too high. The court
nonetheless recognizes the complex and pressing circumstances surrounding
the settlements in these cases and the quality of representation class counsel
provided, justifying an award of 30%.
Fifth, a 30% fee is reasonable in relation to class recovery in these cases.
Again, “[i]n this Circuit, courts routinely award attorneys’ fees that run to 30%
and even a little more of the amount of the common fund.” In re Beacon Assocs.
Litig., No. 09 Civ. 777, 2013 WL 2450960, at *5 (S.D.N.Y. May 9, 2013).
Comparing the fee-to-settlement-fund ratio to the ratios approved in other cases
confirms the reasonableness of a 30% fee. According to an empirical study
conducted by Professors Eisenberg and Miller in 2010, the mean fee percentage
awarded for class recoveries of the size achieved in the Seijas cases is 22.1%,
with a standard deviation of 8.7. Theodore Eisenberg & Geoffrey P. Miller,
Attorney Fees and Expenses in Class Action Settlements 1993–2008, 7 J.
Empirical Legal Stud. 248, 265 (2010); see also In re Colgate-Palmolive Co. Erisa
Litig., 36 F. Supp. 3d 344, 349–50 (S.D.N.Y. 2014) (assessing the reasonableness
of the requested attorneys’ fees award in relation to Professors Eisenberg and
Miller’s empirical study). A fee of 30% is within one standard deviation of that
While a 30% fee is on the higher end of percentages awarded for attorneys’
fees in this Circuit, it is reasonable in light of the class recovery and class
counsel’s investment in these cases. Because of the size of the class fund, a 30%
fee will not result in a “windfall” at the expense of the class. Contra In re Citigroup
Inc. Bond Litig., 988 F. Supp. 2d 371, 374–75 (S.D.N.Y. 2013). To the contrary,
a 30% fee will not even compensate class counsel for the full extent of their time
and labor. Therefore, an award of attorneys’ fees of 30% is reasonable in relation
to the class recovery.
Finally, the court addresses the public policy considerations involved in
awarding attorneys’ fees from a class fund. The court considers what fee would
adequately encourage class counsel to continue bringing cases of merit in the
future, even in light of the risks counsel incurs by doing so. In re Initial Pub.
Offering Sec. Litig., 671 F. Supp. 2d at 511. That counsel continued to diligently
represent these classes even after the Republic’s steadfast refusal to negotiate or
make payments on the class members’ bond interest demonstrates class
counsel’s commitment to these cases—a dedication that is to be encouraged and
rewarded. But the court must balance the desire to encourage counsel against
the need to protect the instant classes from paying excessive fees. See Wal-Mart,
396 F.3d at 123 (“[T]he district court’s decision in favor of protecting the instant
class from an excessive fee award militates against awarding attorneys’ fees
based purely on economic incentives.”). No attorneys’ fees award can perfectly
achieve both of these policy considerations in these cases, but after careful
review, the court finds that a 30% award strikes the right balance.
Although the recovery for class members may be lower than desired, class
counsel expended an extraordinary amount of time and labor on behalf of class
members. Class members were justifiably concerned about class counsel’s
original attorneys’ fees request, which would have awarded class counsel fees of
three times their lodestar. But the present award represents a discount, not a
windfall, because it does not fully compensate class counsel for the time and
effort they invested in the litigation. That discount reflects the value of the
settlement achieved on behalf of the class, which was not fully satisfactory to the
Taking into account all of the Golberger factors, and assessing the
percentage-based fees award for reasonableness using counsel’s lodestar, the
court finds an attorneys’ fees award of 30% of the net class fund to be reasonable
in the Seijas cases.
Distribution of the Attorneys’ Fees Award
As class counsel in the Seijas cases from 2004–2010, Gleizer may well be
entitled to compensation for his work. But the information needed to resolve the
dispute as to Gleizer’s fees is not presently in front of the court. Therefore, the
court declines to resolve the dispute regarding the distribution of attorneys’ fees
in the Seijas cases at this time. The attorneys’ fees in the Seijas cases are to be
paid into escrow until the current dispute as to how the fee will be allocated
between Class Counsel of Record and Gleizer is resolved.
Named Plaintiff Incentive Award
Class counsel in Brecher requests a service award of $5,000 to named
plaintiff Henry H. Brecher. That request is denied.
The court has discretion to grant incentive awards. Roberts v. Texaco, Inc.,
979 F. Supp. 185, 200 (S.D.N.Y. 1997). “Payments to class representatives, while
not foreclosed, should be closely scrutinized.” Sakiko Fujiwara v. Sushi Yasuda
Ltd., 58 F. Supp. 3d 424, 434 (S.D.N.Y. 2014) (quoting Silberblatt v. Morgan
Stanley, 524 F. Supp. 2d 425, 435 (S.D.N.Y. 2007)). The court’s main
consideration in determining whether to grant an incentive award is the
existence of special circumstances. Roberts, 979 F. Supp. at 200. Therefore, the
court closely scrutinizes payments to class representatives considering (1) the
personal risk incurred by the plaintiff, (2) the time and effort expended by the
plaintiff in assisting the litigation, (3) any other burden sustained by the plaintiff
due to the litigation, and (4) the ultimate recovery. Id. Incentive awards must be
balanced against the “equally important quest for parity and fairness among
class members.” In re AOL Time Warner ERISA Litig., No. 02 cv. 8853, 2007 WL
3145111, at *4 (S.D.N.Y. Oct. 26, 2007).
Class counsel argues that Brecher vigorously pursued the litigation in this
case and has furthered the interests of the class by interviewing potential class
counsel, learning about defaulted debt, responding to discovery, traveling to be
deposed, and communicating with class counsel. Brecher certainly contributed
to an ultimately successful class action, but the proposed incentive award would
directly decrease the recovery of other class members. While Brecher is to be
recognized for his efforts, he did not incur any additional risk in pursuing this
litigation. Brecher diligently protected his interests and those of the class, but
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