Kaplan v. Comedy Partners

Filing 50

OPINION & ORDER re: (47 in 1:23-cv-02409-VSB) MOTION for Settlement (Notice of Motion and Motion for Preliminary Approval of Class Action Settlement Agreement). filed by Michael Kaplan., For the foregoing reasons, Plaintiffs' uno pposed motion for preliminary approval of the settlement is GRANTED on the terms set out in the Order re Preliminary Approval of Settlement Agreement, Certification of Settlement Class, Appointment of Class Counsel, and Appointment of Class Represent atives that will issue in conjunction with this Opinion & Order. The Court will hold a final fairness hearing on Tuesday, July 22, 2025 at Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, NY, at 10:00am in Courtroom 518. Accordingly, it is hereby: ORDERED that, pending the Final Approval Hearing, all deadlines in this action save those set out in this Opinion & Order and in the Order re Preliminary Approval of Settlement Agreement, Certification of Settlement Class, Appointment of Class Counsel, and Appointment of Class Representatives, for the purpose of executing the Settlement Agreement are stayed. IT IS FURTHER ORDERED that counsel for all parties shall appear for a telephonic conference in this matter on April 4, 2025 a t 2:00pm. The dial-in number is 1-855-244-8681 and the access code is 2309 3085 835. There is no attendee ID. IT IS FURTHER ORDERED that I shall retain jurisdiction over this action to consider all further matters arising out of or connected with the Settlement Agreement. The Clerk of Court is respectfully directed to close the motion at Doc. 47 in No. 23-CV-2409. SO ORDERED. (Fairness Hearing set for 7/22/2025 at 10:00 AM in Courtroom 518, 40 Centre Street, New York, NY 10007 before Judge Vernon S. Broderick., Telephone Conference set for 4/4/2025 at 02:00 PM before Judge Vernon S. Broderick.) (Signed by Judge Vernon S. Broderick on 3/11/2025) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JOSEPH ZIMMERMAN, individually and on :
behalf of all others similarly situated, et al., :
:
:
Plaintiffs,
:
:
- against :
PARAMOUNT GLOBAL, et al.,
:
:
Defendants. :
:
--------------------------------------------------------- :
:
:
MICHAEL KAPLAN, individually and on
:
behalf of all others similarly situated,
:
Plaintiff,
:
:
:
- against :
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COMEDY PARTNERS,
:
Defendant. :
:
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23-CV-2409 (VSB)

22-CV-9355 (VSB)
OPINION & ORDER

Appearances:
Benjamin Sweet
Nye, Stirling, Hale, Miller & Sweet, LLP
Pittsburg, PA
Scott Adam Kamber
Kamberlaw, LLC
Denver, CO
Counsel for Plaintiffs Zimmerman, DeVito, Donnelly, and the Proposed Class

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Adrian John Buonanoce
Bobby Pouya
Daniel L. Warshaw
Pearson Warshaw, LLP
Sherman Oaks, CA
Melissa Eubanks
VGC, LLP
Beverly Hills, CA
Douglas L Johnson
Neville Lawrence Johnson
Johnson & Johnson LLP
Beverly Hills, CA
Counsel for Plaintiff Kaplan
Kenneth L. Steinthal
King & Spalding LLP
San Francisco, CA
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Plaintiffs and the Proposed Class (collectively, “Plaintiffs”) in this consolidated case are
recording artists whose works have been distributed on SiriusXM Radio (“SiriusXM”) pursuant
to licensing agreements or recording contracts (the “Recording Contracts”). Plaintiffs allege that
Defendants failed to pay royalties for SiriusXM’s distribution of their works that are owed under
the Recording Contracts. Before me is Plaintiffs’ motion for preliminary class certification and
settlement approval. Because I find after a preliminary evaluation that the settlement is fair,
reasonable, and the result of good faith negotiation, Plaintiffs’ motion is GRANTED.
I.

Background
A.

Factual and Procedural History

I adopt the factual and procedural background set out in the “Factual and Procedural
Background” section of the memorandum of law in support of the motion for preliminary

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settlement approval and provide a summary below. (Doc. 48 (“Mem.”) 1–3. 1) By adopting the
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factual and procedural background, I am not making a finding as to the veracity of the alleged
facts.
In May 2021, Plaintiff Joseph Zimmerman “engaged in written communications and a
document exchange with ViacomCBS’s (“Viacom”) Business & Legal Affairs Department.” (Id.
at 1.) Through these discussions, Zimmerman learned that Defendant “Comedy Partners was
collecting his share of the public performance royalties from SiriusXM via a direct licensing
agreement with SiriusXM. The direct license limited Zimmerman’s ability to collect his royalty
share through SoundExchange, the statutorily created collection agency that would have
otherwise collected and paid Zimmerman for his share of the public performance royalties.” (Id.
(citing 17 U.S.C. §§ 112, 114)). Comedy Partners did not meet Zimmerman’s demand for
royalty payments. (Id.) On August 26, 2022, Zimmerman and Plaintiffs Anthony DeVito and
Sean Donnelly, all fellow comedians, filed “copyright applications with the Library of Congress
in order to perfect and pursue their rights.” (Id.)
Meanwhile, Plaintiff Michael Kaplan, another comedian, also learned that he did not
receive royalties for SiriusXM’s distributions of his works. (Id.) On November 1, 2022, Kaplan
filed a putative class action (the “Kaplan action”) against Defendant Comedy Partners before this
Court. 2 See Kaplan v. Comedy Partners, No. 22-CV-9355 (S.D.N.Y. filed Nov. 1, 2022).
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Kaplan asserted claims for “(1) breach of contract; (2) breach of the covenant of good faith and
fair dealing; (3) money had and received; and (4) unjust enrichment, based on Comedy Partners’

Unless otherwise noted, record citations refer to Zimmerman v. Paramount Global, No. 23-CV-2409 (S.D.N.Y.
filed Mar. 21, 2023).
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The Kaplan action was originally assigned to Judge John G. Koeltl and was reassigned to Judge Dale Ho on May
2, 2024.

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alleged failure to pay royalties owed to artists with whom it had Recording Contracts and whose
works have been distributed via digital audio transmission on SiriusXM pursuant to such
Recording Contracts.” (Mem. 1–2.)
On March 21, 2023, Plaintiffs Zimmerman, DeVito, and Donnelly filed a separate
putative class action (the “Zimmerman action”) related to the royalty payments. (See Doc. 1.)
The Plaintiffs in the Zimmerman action asserted the same four claims as the Kaplan action
against Defendants Paramount Global, Comedy Partners, and Does 1–10. (Mem. 3.) The
Zimmerman Plaintiffs also asserted “additional causes of action for (1) declaratory judgment
regarding violations of [the Copyright Act], 17 U.S.C. §§ 106(6), 114(g)(2)(D); (2) direct
violation of [the Copyright Act], 17 U.S.C. §§ 106(6), 114(g)(2)(D); (3) breach of fiduciary duty;
and (4) accounting [of damages].” (Id.) The Zimmerman Plaintiffs sought, inter alia, “copyright
damages for willful infringement based on Zimmerman’s prior 2021” unmet demand to Comedy
Partners “for public performance royalties.” (Id.)
On May 18, 2023, Defendants submitted a letter in the Zimmerman and Kaplan actions
informing the Court that the parties to each proceeding “believe that joint mediation proceedings
may facilitate early resolution of both actions.” (Doc. 20; Kaplan Doc. 31.) The letter also noted
that the Kaplan plaintiffs had “engaged in preliminary settlement discussions and data
exchanges” since the filing of that action. (Id.) On August 16, 2023, the parties notified the
Court that they had scheduled a joint mediation session before the Honorable Louis Meisinger
for September 19, 2023. (Doc. 22.) The parties reached a settlement-in-principle during the
mediation, and scheduled a second mediation in order to finalize the settlement terms. (See Doc.
30.) On May 21, 2024, I granted the parties’ joint motions to consolidate the Zimmerman and

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Kaplan actions pursuant to Federal Rule of Civil Procedure 42(a) in anticipation of the parties’
motion for preliminary settlement approval. (See Doc. 37.)
On August 29, 2024, the parties submitted a joint motion for preliminary approval of their
class action settlement, (Doc. 47), a supporting memorandum of law, (Doc. 48 (“Mem”), and
supporting declarations of Daniel L. Warshaw, (Doc. 49 (“Warshaw Decl.”)), Neville L. Johnson,
(Doc. 50 (“Johnson Decl.”)), Cameron R. Azari, (Doc. 52 (“Azari Decl.”)), Benjamin J. Sweet,
(Doc. 54 (“Sweet Decl.”)), Plaintiff Kaplan, (Doc. 51 (“Kaplan Decl.”)), Plaintiff DeVito, (Doc.
55 (“DeVito Decl.”)), Plaintiff Donnelly, (Doc. 56 (“Donnelly Decl.”)), and Plaintiff
Zimmerman, (Doc. 57 (“Zimmerman Decl.”)). The parties’ Settlement Agreement is attached as
an exhibit to the Warshaw Declaration. (See Doc. 49-1 (“Settlement Agreement”).)
B.

Summary of Settlement Agreement

The Settlement Agreement includes a single Settlement Class, defined as:
All persons and entities, their agents, successors in interest, affiliates, assigns, heirs,
executors, trustees, and administrators who are or were parties to Recording
Contracts with Comedy Partners whose works have been distributed by digital
audio transmission via SiriusXM Radio pursuant to such Recording Contracts
between May 19, 2013, up to and including December 31, 2022 [(the “Class
Period”)].
(Settlement Agreement ¶ 2(a).) Upon the Court’s final settlement approval, the Agreement
provides that Defendants will pay a total of $11,000,000 into a settlement fund, which covers
“(1) the Class Settlement Payments, (2) any amounts needed to satisfy (a) any award of
Attorneys’ Fees and Expenses, (b) any Incentive Award, and (c) all Notice and Administration
Costs.” (Id. ¶ 4.) Each Class Member who does not opt out of the Settlement Class will receive
a pro rata share of the Net Settlement Sum “equal to the total number of plays of the individual
Class Member’s Recordings, compared to the total number of plays of all Class Member

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Recordings (in the aggregate) via the SiriusXM Radio platform during the [Class Period].” (Id.
¶ 1(g); see also id. ¶ 4(a)(i).)
II.

Legal Standard
A.

Preliminary Settlement Approval

It is within a district court’s discretion to approve proposed class action settlements. See
Kelen v. World Fin. Network Nat’l Bank, 302 F.R.D. 56, 68 (S.D.N.Y. 2014) (citing Maywalt v.
Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995)). “The compromise of
complex litigation is encouraged by the courts and favored by public policy.” Wal-Mart Stores,
Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 117 (2d Cir. 2005) (quoting 4 Alba Conte & Herbert B.
Newberg, Newberg on Class Actions § 11:41, at 87 (4th ed. 2002)), superseded by Fed. R. Civ. P.
23(e)(2), as recognized in Moses v. New York Times Co., 79 F.4th 235, 243 (2d Cir. 2023). The
parties and their counsel are in a unique position to assess the potential risks of litigation, and
thus district courts in exercising their discretion often give weight to the fact that the parties have
chosen to settle. See Yuzary v. HSBC Bank USA, N.A., No. 12-CV-3693, 2013 WL 1832181, at
*1 (S.D.N.Y. Apr. 30, 2013) (citation omitted).
Federal Rule of Civil Procedure 23(e) requires judicial approval of any class action
settlement. Review of a proposed settlement generally involves preliminary approval followed
by a fairness hearing. See Silver v. 31 Great Jones Rest., No. 11-CV-7442, 2013 WL 208918, at
*1 (S.D.N.Y. Jan. 4, 2013). “[C]ourts often grant preliminary settlement approval without
requiring a hearing or a court appearance.” Lizondro-Garcia v. Kefi LLC, 300 F.R.D. 169, 179
(S.D.N.Y. 2014) (citation omitted). However, “[e]ven at the preliminary approval stage, the
Court’s role in reviewing the proposed settlement ‘is demanding because the adversariness of
litigation is often lost after the agreement to settle.’” In re GSE Bonds Antitrust Litig., 414 F.
Supp. 3d 686, 692 (S.D.N.Y. 2019) (quoting Zink v. First Niagara Bank, N.A., 155 F. Supp. 3d
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297, 308 (W.D.N.Y. 2016)). Thus, a district court must consider whether the court “will likely be
able to: (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of
judgment on the proposal.” In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.,
330 F.R.D. 11, 28 (E.D.N.Y. 2019) (quoting Fed. R. Civ. P. 23(e)(1)(B)(i)–(ii)) (emphasis
omitted); see also In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d at 692 (same). Courts
conducting this analysis “must make a preliminary evaluation as to whether the settlement is fair,
reasonable and adequate.” In re Currency Conversion Fee Antitrust Litig., No. 01-MD-1409, M21-95, 2006 WL 3247396, at *5 (S.D.N.Y. Nov. 8, 2006) (internal quotation marks omitted). In
making this determination, courts consider the (1) adequacy of representation, (2) existence of
arm’s-length negotiations, (3) adequacy of relief, and (4) equitableness of treatment of class
members. Fed. R. Civ. P. 23(e)(2)(A)–(D). In addition to these four factors, courts in this Circuit
also consider whether the settlement is fair, reasonable, and adequate based on the nine factors 3
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established in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), 4 which
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partially overlap with the factors in Rule 23(e)(2)(C)–(D).
B.

Conditional Settlement Class Certification and Appointment of Class
Counsel

Conditional settlement class certification and the appointment of class counsel have
several practical purposes “including avoiding the costs of litigating class status while facilitating
a global settlement, ensuring notification of all class members of the terms of the proposed

The Grinnell factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the
class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of
establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the
trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the
settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a
possible recovery in light of all the attendant risks of litigation. See Grinnell, 495 F.2d at 463.

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The Advisory Committee Notes to the 2018 amendments indicate that the four new Rule 23 factors were intended
to supplement rather than displace the “Grinnell” factors. See Fed. R. Civ. P. 23 advisory committee’s note to 2018
amendment, subdiv. (e)(2)).

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settlement agreement, and setting the date and time of the final approval hearing.” Almonte v.
Marina Ice Cream Corp., No. 16-CV-660, 2016 WL 7217258, at *2 (S.D.N.Y. Dec. 8, 2016)
(citing In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 790–
92 (3d Cir. 1995)). A proposed settlement class must meet the requirements of Rule 23(a) and
(b)(3). Under Rule 23(a), class certification is appropriate if “(1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions of law or fact common to the
class; (3) the claims . . . of the representative parties are typical of the claims . . . of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R.
Civ. P. 23(a)(1)–(4). “The party seeking class certification bears the burden of establishing each
of these elements by a ‘preponderance of the evidence.’” Lizondro-Garcia, 300 F.R.D. at 174
(quoting Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202
(2d Cir. 2008)). Once each of these four threshold requirements are met, “class certification is
appropriate if the action also satisfies one of the three alternative criteria set forth in Rule 23(b).”
Id. To certify a class under Rule 23(b)(3), as the parties seek to do here, a court must also find
“that the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
III.

Discussion
A.

Preliminary Approval of Class Settlement

Based on the materials Plaintiffs have submitted and for the reasons outlined below, I find
that the settlement merits preliminary approval.
1. Adequacy of Representation
“Determination of adequacy typically entails inquiry as to whether: (1) plaintiff’s
interests are antagonistic to the interest of other members of the class and (2) plaintiff’s attorneys
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are qualified, experienced and able to conduct the litigation.” Cordes & Co. Fin. Servs. v. A.G.
Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007) (internal quotation marks omitted).
Here, Plaintiffs’ interests are not antagonistic to the interest of the other class members;
rather, Plaintiffs and unnamed class members alike each suffered the same injury—Defendants’
use of their works on SiriusXM without paying royalties. Although each Class Member will
receive a different amount, the variations in payments bear a direct, pro rata relationship to the
variations in out-of-pocket damages sustained by each class member based on the number of
times SiriusXM played their works without royalty compensation.
Plaintiffs’ attorneys have also demonstrated the necessary qualifications and skill in this
matter through their prior results and experience. (See Mem. 15; Warshaw Decl. ¶¶ 9–15;
Johnson Decl. ¶¶ 4–5; Sweet Decl. ¶¶ 3–11.) Plaintiffs’ counsel has also demonstrated their skill
through their work on this case, which involved substantial negotiation and discovery and
resulted in a successful mediated settlement. (See Sweet Decl. ¶¶ 12–17.) Therefore, Rule
23(e)(2)(A)’s adequacy of representation prong weighs in favor of approval.
2. Existence of Arm’s-Length Negotiations
The existence of arm’s-length negotiations further counsels in favor of approving the
settlement on a preliminary basis. Rule 23(e)(2)(B) requires a court to consider whether a
proposed settlement “was negotiated at arm’s length.” Here, counsel for Plaintiffs engaged in an
eighteen-month settlement negotiation process following pre-litigation negotiation and
discovery; the parties’ negotiations during the litigation involved using a mediator, discovery
related to Defendants’ use of Plaintiffs’ works and Plaintiffs’ retention of “professional auditors
as litigation consultants to assist in the evaluation of the case and the Settlement before it was
finalized.” (Mem. 7.) Given this work, the parties had a full opportunity to acquaint themselves
with the strength of the case prior to and over the course of their negotiations. The parties were
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represented by experienced counsel who were then aided in their negotiations—as noted—by an
experienced, privately retained mediator. (Id. 6–7.) “Courts have [] recognized a presumption of
fairness when a settlement is reached with the assistance of a mediator.” Lea v. Tal Educ. Grp.,
No. 18-CV-5480, 2021 WL 5578665, at *8 (S.D.N.Y. Nov. 30, 2021) (citing Alves v. Main, 2012
WL 6043272, at *22 (D.N.J. Dec. 4, 2012), aff’d, 559 F. App’x 151 (3d Cir. 2014)); cf. id.
(applying presumption of fairness to a settlement reached with the assistance of a privately
retained mediator). The mediator assisted the parties in arriving at a settlement-in-principle and
finalizing the Settlement Agreement. All of this strongly suggests that the Settlement is the result
of good faith arm’s-length negotiations. See In re Namenda Direct Purchaser Antitrust Litig.,
462 F. Supp. 3d 307, 311 (S.D.N.Y. 2020) (approving settlement where parties engaged in
substantive mediation and experienced counsel reached an agreement after arm’s-length
negotiations)
3. Adequacy of Relief
In assessing the adequacy of a settlement under Rule 23(e)(2)(C)(i), “courts may need to
forecast the likely range of possible classwide recoveries and the likelihood of success in
obtaining such results.” In re Payment Card, 330 F.R.D. at 36 (quoting Fed. R. Civ. P. 23
advisory committee’s note to 2018 amendment). This inquiry overlaps with the Grinnell factors
of “complexity, expense, and likely duration of the litigation” along with “the risks of
establishing liability,” “the risks of establishing damages,” and “the risks of maintaining the class
action through the trial.” See Grinnell, 495 F.2d at 463.
The risks in this action including the procedural complexity of two parallel actions, the
intricacies of interpreting each Plaintiff’s Recording Contract, and the substantial time it would
take for Plaintiffs to litigate this case through any motions to dismiss, class certification,

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summary judgment, and trial. (Mem. 8.) These considerations weigh in favor of preliminary
approval.
Under Rule 23(e)(2)(C)(ii), a court must evaluate the “effectiveness of any proposed
method of distributing relief to the class, including the method of processing class-member
claims.” Fed. R. Civ. P. 23(e)(2)(C)(ii). “A claims processing method should deter or defeat
unjustified claims, but the court should be alert to whether the claims process is unduly
demanding.” Tal Educ. Grp., 2021 WL 5578665, at *11 (internal quotation marks omitted).
“When formulated by competent and experienced class counsel, a plan for allocation of net
settlement proceeds need have only a reasonable, rational basis.” In re Advanced Battery Techs.,
Inc. Sec. Litig., 298 F.R.D. 171, 180 (S.D.N.Y. 2014) (internal quotation marks omitted).
Here, the distribution plan here has been formulated by experienced counsel and is being
overseen by Epiq Class Action and Claims Solutions, Inc. (“Epiq”), an experienced claims
administrator. (See Azari Decl. ¶¶ 2–4.) Because of discovery exchanged during settlement
negotiations, within 30 days of this Court’s preliminary approval of the Settlement Agreement
each Class Member will receive a notice via email and/or first-class mail informing them of the
substantive terms of the Agreement, advising them of their options to object or opt-out, and
explaining how to receive additional information about the settlement. (Mem. 18–19.) Having
reviewed the proposed notices, (Docs. 52-2–52-4), I find that they are adequate and pose little
risk that the distribution process unduly demanding or unable to filter out unjustified claims.
Therefore, I find that this plan is fair, reasonable, and adequate.
In assessing the adequacy of the relief, Rule 23 also requires the court to examine the
proposed attorneys’ fees. Fed. R. Civ. P. 23(e)(2)(C)(iii). The parties do not discuss the amount
of attorneys’ fees they intend to request in their memorandum of law, stating that the Settlement

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Agreement “is not contingent upon the approval of attorneys’ fees” and that the “Court will
separately and independently determine the appropriate amount of fees, costs, and expenses to
award to Class Counsel.” (Mem. 6.) However, the proposed notice of settlement indicates that
any request for attorneys’ fees will be for “up to $3,666,666.66 of the $11 million Settlement
Fund, and up to $100,000.00 in costs and expenses.” (Doc. 52-2 at 3.) “[A]n application for a
fee award of an amount not to exceed one-third of the” Settlement Fund, “plus reasonable out-ofpocket costs . . . is consistent with what other courts in this District have approved.” Grissom v.
Sterling Infosystems, Inc., No. 20-CV-7948, 2024 WL 4627567, at *5 (S.D.N.Y. Oct. 30, 2024)
(citing Suarez v. Rosa Mexicano Brands Inc., No. 16-CV-5464, 2018 WL 1801319, at *1
(S.D.N.Y. Apr. 13, 2018); Zorrilla v. Carlson Rests., Inc., No. 14-CV-2740, 2018 WL 1737139,
at *2 (S.D.N.Y. Apr. 9, 2018)). Thus, I find for purposes of preliminary approval that the
anticipated attorneys’ fee request appears reasonable, subject to final approval.
Finally, a court must consider “any agreement required to be identified under Rule
23(e)(3),” Fed. R. Civ. P. 23(e)(2)(C)(iv), which includes “any agreement made in connection
with the proposal,” Fed. R. Civ. P. 23(e)(3). The parties have identified no prior separate
agreement, and the proposed Settlement Agreement “constitutes the entire agreement between
the Parties.” (Settlement Agreement ¶ 27.) This consideration does not weigh against
preliminary settlement approval.
4. Equitable Treatment of Class Members
Rule 23(e)(2)(D) requires the Court to consider whether “the proposal treats class
members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). The Settlement
Agreement’s pro rata distribution scheme is sufficient evidence of equitable treatment in this
regard. See In re Payment Card, 330 F.R.D. at 47 (finding that a “pro rata distribution scheme is
sufficiently equitable”).
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As part of this factor, I must also consider the incentive payments proposed in the
Agreement. “Rule 23(e)(2)(D) does not forbid incentive awards.” Moses, 79 F.4th at 245. “At
the same time, the rule requires that courts reject incentive awards that are excessive compared to
the service provided by the class representative or that are unfair to the absent class members.”
Id. The parties have proposed a service award to each of the four named Plaintiffs—
Zimmerman, Kaplan, DeVito, and Donnelly—that is not to exceed $5,000. (Settlement
Agreement ¶ 13.) This award is within the range of service awards approved by courts in this
District given counsel’s representation regarding the contributions of the named Plaintiffs to this
case. 5 (See Zimmerman Decl. ¶¶ 5–6, 8; Kaplan Decl. ¶¶ 4–6; DeVito Decl. ¶¶ 5–6, 8; Donnelly
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Decl. ¶¶ 5–6, 8.) Thus, the incentive awards are reasonable in light of the particular
circumstances of this case.
5. Remaining Grinnell Factors
The Grinnell factors not expressly assessed under Rule 23(e)(2) include “[] the reaction
of the class to the settlement; [] the stage of the proceedings and the amount of discovery
completed; . . . [] the ability of the defendants to withstand a greater judgment; [] the range of
reasonableness of the settlement fund in light of the best possible recovery; and [] the range of
reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of
litigation.” Grinnell, 495 F.2d at 463.
All five of these Grinnell factors favor preliminary approval. First, the named Plaintiffs
favor the Settlement, and their approval is probative of the Class’s reaction at this time since
notice has not yet been issued. See, e.g., Sonterra Cap. Master Fund, Ltd. v. Barclays Bank PLC,

“Awards on an individualized basis have generally ranged from $2,500 to $85,000.” Hart v. BHH, LLC, No. 15CV-4804, 2020 WL 5645984, at *5 (S.D.N.Y. Sept. 22, 2020) (citation omitted).

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No. 15-cv-3538, 2023 WL 3749996, at *5 (S.D.N.Y. June 1, 2023) (“[T]he Representative
Plaintiffs favor the Settlement, and their approval is probative of the Class’s reaction at this time
since notice has not yet been issued.”) Second, through pre-litigation negotiations and extensive
discussion with counsel before, during, and after the mediation, the named Plaintiffs have
“obtained a sufficient understanding of the case to gauge the strengths and weaknesses of [their]
claims and the adequacy of the settlement.” In re AOL Time Warner, Inc., No. 02-CV-5575, 2006
WL 903236, at *10 (S.D.N.Y. Apr. 6, 2006). I note that because the underlying claims involve
the named Plaintiffs’ livelihoods, they are acutely aware of the issues at stake, as shown by
Plaintiff Zimmerman’s decision to initiate direct negotiations with Viacom prior to the filing of
this lawsuit. (See Mem. 2.) Third, the fact that Defendants could potentially withstand a greater
judgment “does not, standing alone, indicate that the settlement is unreasonable or inadequate.”
In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 460 (S.D.N.Y. 2004) (internal
quotation marks omitted). Finally, in considering the settlement in light of the best possible
recovery and the risks of litigation, the Settlement Agreement provides adequate recovery for the
class, of which each member will receive a substantial pro rata payment from the common fund,
which represents “more than 68% of the total unpaid royalties (i.e., damages) that Plaintiffs and
their consultant auditors calculated were owed to the Class”; the total unpaid royalties
“approximated $16 million.” (Mem 11.) Given the litigation risks already discussed, this is a
reasonable and adequate settlement.
B.

Conditional Class Certification

Plaintiffs have met the requirements for a class set out by Rule 23(a)(1)–(4). The class is
sufficiently numerous because, according to the parties’ estimate, it consists of approximately
120 members. (Mem. 13.) Common issues predominate across the class because each of
Plaintiff’s harms stems from Defendants’ alleged failure to pay royalties for SiriusXM
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distribution. Plaintiffs’ claims are typical of the class because their claims, like all class
members, arise out of these factual and legal circumstances. The adequacy requirements are met
both because Plaintiffs’ interests are not antagonistic to those of the class and because, as
discussed above, their attorneys have sufficient skill and experience to competently represent the
class and have achieved a sound result. Because the class certification request is made in the
context of settlement only, I need not address the issue of manageability. See Soler v. Fresh
Direct, LLC, No. 20-CV-3431, 2023 WL 2492977, at *6 (S.D.N.Y. Mar. 14, 2023) (certifying
“settlement class for the purposes of settlement, notice, and award distribution only”).
Furthermore, the predominance and superiority requirements of Rule 23(b)(3) are
satisfied because the common legal and factual issues already discussed “predominate over any
questions affecting only individual members” and a class action is a superior method of resolving
these issues. Fed. R. Civ. P. 23(b)(3).
IV.

Conclusion

For the foregoing reasons, Plaintiffs’ unopposed motion for preliminary approval of the
settlement is GRANTED on the terms set out in the Order re Preliminary Approval of Settlement
Agreement, Certification of Settlement Class, Appointment of Class Counsel, and Appointment
of Class Representatives that will issue in conjunction with this Opinion & Order. The Court
will hold a final fairness hearing on Tuesday, July 22, 2025 at Thurgood Marshall U.S.
Courthouse, 40 Foley Square, New York, NY, at 10:00am in Courtroom 518.
Accordingly, it is hereby:
ORDERED that, pending the Final Approval Hearing, all deadlines in this action save
those set out in this Opinion & Order and in the Order re Preliminary Approval of Settlement
Agreement, Certification of Settlement Class, Appointment of Class Counsel, and Appointment
of Class Representatives, for the purpose of executing the Settlement Agreement are stayed.
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IT IS FURTHER ORDERED that counsel for all parties shall appear for a telephonic
conference in this matter on April 4, 2025 at 2:00pm. The dial-in number is 1-855-244-8681 and
the access code is 2309 3085 835. There is no attendee ID.
IT IS FURTHER ORDERED that I shall retain jurisdiction over this action to consider all
further matters arising out of or connected with the Settlement Agreement.
The Clerk of Court is respectfully directed to close the motion at Doc. 47 in No. 23-CV2409.
SO ORDERED.
Dated: March 11, 2025
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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