In re American Realty Capital Properties, Inc. Litigation

Filing 1312

ORDER AWARDING ATTORNEYS' FEES AND EXPENSES. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. This Order incorporates by reference the definitions in the Stipulation of Settlement dated September 30, 2019 (the "Stipulation"), and all capitalized terms used, but not defined herein, shall have the same meanings as set forth in the Stipulation. 2. This Court has jurisdiction over the subject matter of this application and all matters relating thereto, including all Members of the Class who have not timely and validly requested exclusion. 3. Notice of Lead Counsel's Fee Motion was given to all Class Members who could be located with reasonable effort. The form and method of notifying the Class of the Fee Motion met the requirements of Rule 23 of the Federal Rules of Civil Procedure and 15 U.S.C. 78u-4(a)(7), the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995, due process, and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to persons and entities entitled thereto. 4. The Court hereby awards attorneys' fees equal to $100,000,000 of the Settlement Amount plus expenses in the amount of $5,154,721.91. The Court finds that the amount of fees awarded is fair, reasonable, and appropriate under both the lodestar and "percentage-of-recovery" methods. 5. The fees and expenses shall be allocated among Plaintiffs' Counsel in a manner which, in Lead Counsel's good faith judgment, reflects such counsel's contribution to the institution, prosecution, and resolution of the Litigation. 6. The awarded attorneys' fees and expenses shall be paid to Lead Counsel as follows: (1) the full amount of expenses ($5,154,721.91) shall be paid immediately upon entry of this Order; (ii) one-third of the fee award shall be paid immediately upon entry of this Order; (iii) one-third of the fee award shall be paid 90 days after entry of this Order; and (iv) one-third of the fee award shall be paid upon the initial distribution of the Net Settlement Fund pursuant to Part 5 of the Stipulation. 7. In making this award of fees and expenses to Lead Counsel, the Court has considered and found that: (a) the Settlement has created a fund of $1,025,000,000.00 in cash that is already on deposit, and numerous Class Members who submit, or have submitted, valid Proof of Claim and Release forms will benefit from the Settlement created by Lead Counsel; (b) over 246,000 copies of the Notice were disseminated to potential Class Members indicating that Lead Counsel would move for attorneys' fees in an amount not to exceed 13% of the Settlement Amount and for costs, charges and expenses in an amount not to exceed $6 million, plus interest on both amounts, and no objections to the fees or expenses were filed by Class Members; (c) Lead Counsel has pursued the Litigation and achieved the Settlement with skill, perseverance, and diligent advocacy; (d) Lead Counsel has expended substantial time and effort pursuing the Litigation on behalf of the Class; (e) Lead Counsel pursued the Litigation entirely on a contingent basis; (f) the Litigation involves complex factual and legal issues and, in the absence of settlement, would involve lengthy proceedings whose resolution would be uncertain; (g) had Lead Counsel not achieved the Settlement, there would remain a significant risk that the Class may have recovered less or nothing from Defendants; (h) public policy concerns favor the award of reasonable attorneys' fees and expenses in securities class action litigation; and (i) the attorneys' fees and expenses awarded hereby are fair and reasonable and consistent with awards in similar cases within the Second Circuit. 8. Any appeal or any challenge affecting this Court's approval regarding the Fee Motion shall in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. 9. In the event that the Settlement is terminated or does not become Final or the Effective Date does not occur in accordance with the terms of the Stipulation, this Order shall be rendered null and void to the extent provided in the Stipulation and shall be vacated in accordance with the Stipulation. IT IS SO ORDERED. Granting #1284 Motion for Attorney Fees. (Signed by Judge Alvin K. Hellerstein on 1/23/2020). Entry made only in case no. 15mc040, as per Chambers. (rjm)

USDCSDNY
OCUMENT
· LfC TR O ·1CAI.I .Y FILED
H)C #:
>.-\ TE FILED :

-------___._,~ ---

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------X
Civil Action No. 1:15-mc-00040-AKH
In re AMERICAN REAL TY CAPITAL
PROPERTIES, INC. LITIGATION
CLASS ACTION
This Document Relates To :
ALL ACTIONS.
X

-tp.B CY:'1'Pf'tt ORDER AW ARD ING ATTORNEYS ' FEES AND EXPENSES

4843 -4315-3329.v3

This matter having come before the Court on January 21 , 2020, on the motion of Lead
Counsel for an award of attorneys' fees and expenses (the "Fee Motion"), the Court, having
considered all papers filed and proceedings conducted herein, having found the Settlement of this
Litigation to be fair, reasonable and adequate, and otherwise being fully informed in the premises
and good cause appearing therefore;
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1.

This Order incorporates by reference the definitions in the Stipulation of Settlement

dated September 30, 2019 (the "Stipulation"), and all capitalized terms used, but not defined herein,
shall have the same meanings as set forth in the Stipulation.
2.

This Court has jurisdiction over the subject matter of this application and all matters

relating thereto, including all Members of the Class who have not timely and validly requested
exclusion.
3.

Notice ofLead Counsel's Fee Motion was given to all Class Members who could be

located with reasonable effort. The form and method of notifying the Class of the Fee Motion met
the requirements ofRule 23 of the Federal Rules of Civil Procedure and 15 U.S.C. §78u-4(a)(7), the
Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of
1995, due process, and any other applicable law, constituted the best notice practicable under the
circumstances, and constituted due and sufficient notice to persons and entities entitled thereto .
$'/co t:,OO/oo~
4.
The Court hereby awards attorneys' fees equal to ~ -~ ofthe Settlement Amoun ,
plus expenses in the amount of$5, 154,721 .91 , t~ - e - i m e ~ o o - enhoth.amol¼R~
t~

and..a the sam rate as that--eam.€4.o tke-SettlenrerrrFun un~ pai.G. The

bS>fo/

Court finds that the amount of fees awarded is fair, reasonable, and appropriate under the
,1

"percentage-of-recovery" metho<b.. ,
- 14843-4315-3329.v3

I

,

/ o cfc Ffct..-

5.

The fees and expenses shall be allocated among Plaintiffs' Counsel in a manner

which, in Lead Counsel's good faith judgment, reflects such counsel's contribution to the institution,
prosecution, and resolution of the Litigation.
6.

The awarded attorneys' fees and expenses ~nterestearneclihereon, shall be paid to

Lead Counsel as follows : (1) the full amount of expenses ($5 ,154,721 .91 pi.us iiitC:CJt Gwesd) shall
be paid immediately upon entry of this Order; (ii) one-third of the fee award shall be paid
immediately upon entry of this Order; (iii) one-third of the fee award shall be paid 90 days after
entry of this Order; and (iv) one-third of the fee award shall be paid upon the initial distribution of
the Net Settlement Fund pursuant to Part 5 of the Stipulation.
7.

In making this award of fees and expenses to Lead Counsel, the Court has considered

and found that :
(a)

the Settlement has created a fund of$1 ,025,000,000.00 in cash that is already

on deposit, and numerous Class Members who submit, or have submitted, valid Proof of Claim and
Release forms will benefit from the Settlement created by Lead Counsel;
(b)

over 246,000 copies of the Notice were disseminated to potential Class

Members indicating that Lead Counsel would move for attorneys ' fees in an amount not to exceed
13% of the Settlement Amount and for costs, charges and expenses in an amount not to exceed $6
million, plus interest on both amounts, and no objections to the fees or expenses were filed by Class
Members;
(c)

Lead Counsel has pursued the Litigation and achieved the Settlement with

skill, perseverance, and diligent advocacy;
(d)

Lead Counsel has expended substantial time and effort pursuing the Litigation

on behalf of the Class;
-24843-4315-3329. v3

(e)

Lead Counsel pursued the Litigation entirely on a contingent basis;

(f)

the Litigation involves complex factual and legal issues and, in the absence of

settlement, would involve lengthy proceedings whose resolution would be uncertain;
(g)

had Lead Counsel not achieved the Settlement, there would remam a

significant risk that the Class may have recovered less or nothing from Defendants;
(h)

public policy concerns favor the award of reasonable attorneys' fees and

expenses in securities class action litigation; and
(i)

the attorneys ' fees and expenses awarded hereby are fair and reasonable and

consistent with awards in similar cases within the Second Circuit.
8.

Any appeal or any challenge affecting this Court ' s approval regarding the Fee Motion

shall in no way disturb or affect the finality of the Judgment entered with respect to the Settlement.
9.

In the event that the Settlement is terminated or does not become Final or the

Effective Date does not occur in accordance with the terms of the Stipulation, this Order shall be
rendered null and void to the extent provided in the Stipulation and shall be vacated in accordance
with the Stipulation.
IT IS SO ORDERED.

DATED:
T
ONORABLE AL VINK. HELLERSTEIN
UNITED STATES DISTRICT JUDGE

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-34843-43 15-3329.vJ