Unites States of America v. Apple, Inc. et al

Filing 479

NOTICE OF APPEAL from (685 in 1:11-md-02293-DLC) Order, (684 in 1:11-md-02293-DLC) Order. Document filed by Dianne Young Erwin. Filing fee $ 505.00, receipt number 0208-10421257. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A - Attorney Fee Award, # 2 Exhibit B - Final Judgment)Filed In Associated Cases: 1:11-md-02293-DLC et al.(Stein, David)

EXHIBIT
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

·IN RE ELECTRONIC BOOKS ANTITRUST
LITIGATION

This Document Relates to:

No. 11-md-02293 (DLC) .
ECF Case

CLASS ACTION

ALL ACTIONS

[I!ROPQSEDfoRDER GRANTING CLASS COUNSEL'S MOTION
FOR AWARD OF ATTORNEYS' FEES AND REIMBURSEJ\tiENT OF EXPENSES
RELATED TO APPLE SETTLEl\tiENT

010260-11 712851 VI

This matter came befo:e the Court for hearing on November 21, 2014, pursuant to Class
Counsel's Motion for Award of Attorneys' Fees and Reimbursement ofExpenses Related to
Apple Settlement. Having considered all papers filed and proceedings held herein, including the
objections to the proposed fee application, and otherwise being fully informed in the premises, it
is HEREBY ORDERED, ADJUDGED AND DECREED as follows:
A.

The Court hereby awards to Counsel for the Settlement Class attorneys' fees, as

provided for in Section III of the Settlement Agreement by and Among Apple Inc., Plaintiff
States and Class Plaintiffs ("Settlement Agreement"). 1
B.

In making this award of attorneys' fees and reimbursement of expenses in the

amounts described, the Court has considered and finds as follows:
a)

Notice of the settlement was sent to over 23 million consumers nationwide

identified by retailers as eligible consumers. Only 76 consumers requested exclusion from the
settlement, not all of whom were members ofthe Settlement Class.
b) ·

The time and labor expended by Class Counsel supports the requested fee.

Counsel for the Settlement Class have submitted declarations supporting a cumulative lodestar of
20,254 hours and $9,532,321.75, as well as $607,091.56 in expenses unreimbursed by the prior
settlements with the Publisher Defendants. This lodestar reflects the significant time and
attention undertaken to get the results in this case.
c)

The magnitude and complexity ofthis litigation is evident, particularly in

the result. As outlined in Counsel for the Settlement Class's motion for attorney's fees and in the
accompanying declarations, the volume of the pleadings filed in this case, the number of

1

All capitalized terms in this Order shall have the same meaning as defined in the Apple
Settlement Agreement, July 16, 20 14; ECF No. 642-1.
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depositions, the breadth of document productions, and the complexity of the transactional
database all confirm that this was extraordinarily complex litigation.
d)

Btmnsel for the Settlement Class undettook significant dsk

when-th~y

..,.
-tiled this litigation, more than an ordinary piece oflitigatiaBIThe risks Class Counsel undertook
in this case are consistent with the litigation's scope and complexity, and justify a substantial
award.
e)

Counsel for the Settlement Class have conducted the action and achieved

the settlement with skilJ, perseverance and diligent advocacy on behalf of the Class Plaintiffs and
the Settlement Class as a whole.
f)

The total amount to be paid, collectively, to Counsel for the Settlement

Class and Plaintiff States for attorneys' fees, costs relating to the investigation, litigation and
appeal of the litigation and for release of civil penalties claims, as a percentage of the total
payments by all defendants to consumers nationwide, would equal 0, 7 or 17 percent, depending
on the outcome of the Final Liability decision. This Court fmds such an award of fees to be
consistent with the settlement's size and scope.
g)

Public policy considerations also support the requested fee, as only a small

number of firms have the expertise, resources, and inclination to lead the prosecution of cases
such as this one.
h)

The amount of attorneys' fees and reimbursable expenses awarded to

Class Counsel is fair and reasonable given the number of attorney hours expended to achieve the
settlement on behalf of plaintiffs and the Settlement Class as a whole, and the estimated value of
the settlement benefits obtained for the Settlement Class, and the amount awarded is consistent
with awards for similar work in similar cases.

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C.

This Court has considered the five objections filed in this case, only three of

which relate to Class Counsel's application for fees and expenses and finds the following:
a)

Mr. Ritchie Lipson (ECF No. 674), as resident of Arizona, is not a

member of the Settlement Class and does not have standing to object to the award of fees and
expenses to Class Counsel. Regardless, his objections regarding attorneys' fees and expenses are
duplicative of those made by other objectors and are addressed below.
b)

Ms. Dianne Erwin (ECF No. 670) and John Bradley (ECF No. 671)

challenge the parties' decision to negotiate class members' recovery separately from fees and
costs. This pout1 finds that, particularly given the involvement of multiple parties here (the,
litigating Plaintiffs States, Class Counsel and Apple), this separate negotiation of fees and costs
was protective of consumers' interests. Moreover, the settlement process was overseen by an
experienced mediator (Mr. Antonia Piazza), which gives the Court added confidence in the
integrity of the settlement process. The Court finds the negotiation of attorneys' fees and
expenses separate from consumer recovery does not render the settlement or the request for
attorneys' fees unfair or unreasonable.
c)

Ms. Erwin and Mr. Bradley also suggest that Apple's agreement to pay a

cet1ain amount in attorneys' fees and expenses renders the settlement per se unreasonable. The
Second Circuit, however, has explained, "an agreement 'not to oppose' an application for fees up
to a point is essential to [the] completion of the settlement, because the defendants want to know
their total maximum exposure and the plaintiffs do not want to be sandbagged." Malchman v.
Davis, 761 F.2d 893, 905 n.5 (2d Cir. 1985). Indeed, even the courts to whom the objectors cite

do not hold clear-sailing provisions to be sufficient in and of themselves to undermine a
settlement; rather, the question is whether the settlement is fair and reasonable on the whole, not

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whether it has one specific form. See, e.g., Gooch v. Life Investors Ins. Co. ofAm., 672 F.3d
402, 426 (6th Cir. 2012) ("[N]ot every 'clear sailing' provision demonstrates collusion.");

Weinberger v. Great N Nekoosa Corp., 925 F.2d 518,520 (1st Cir. 1991) (where settlement
includes a clear-sailing provision, "the court should scrutinize it to ensure that the fees awarded
are fair and reasonable"). The Court finds that the provision requiring Apple to pay attorneys'
fees and expenses separate from consumer compensation does not render the fees unfair or
umeasonable. Moreover, the Court finds that the range of fees requested by Class Counsel falls
within or below the ranges approved by courts in previous cases with recoveries of similar size.
d)

Both Ms. Erwin and Mr. Bradley argue that the Court cannot award fees

without detailed billing records. Steve Berman, the managing partner of Hagens Berman Sobol
Shapiro LLP and Kit Pierson, the co-chair of the Antitrust Practice Group at Cohen Milstein
Sellers & Toll PLLC, have both attested to the detailed work undertaken by Class Counsel in this
case, as well as that the requested lodestar reflects detailed and contemporaneously prepared
time. And the Second Circuit has stated that "where used as a mere cross-check, the hours
documented by counsel need not be exhaustively scrutinized by the district court," that "the
practice of requiring documentation ofhours as a 'cross-check'" is only "encourage[d)," and that
"the reasonableness of the claimed lodestar can be tested by the comt's familiarity with the case
(as well as encouraged by the strictures of Rule 11)." See Goldberger v.Integrated Res., Inc.,
209 F.3d 43, 50 (2d Cir. 2000); accord, e.g., Cassese v. Williams, 503 Fed. App'x 55, 59 (2d Cir.
2012), cert. denied, Komar v. Cassese, 133 S. Ct. 2013 (2013) (describing identical argument by
Mr. Bradley's counsel as "meritless"). The Comt finds, given its familiarity with the record and
the detail submitted by Class Counsel, that the fees requested by Class Counsel are reasonable_) ~-.~
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and the submission of detailed time records is not necessary.

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SO ORDERED.

DATED: ____________

HON. DENISE L. COTE
UNITED STATES DISTRICT COURT mDGE

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