Nieman v. Duke Energy Corporation et al

Filing 112

ORDER granting #96 Motion for Attorney Fees. It is therefore ordered that Lead Counsel's Motion for an Award of Attorney's Fees and Expenses is Granted attorneys' fees of 18% of the Settlement Fund are Allowed, plus expenses in the amount of $191,738.27, together with the interest earned on both amounts for the same time period and at the same rate as that earned on the Settlement Fund until paid. Lead Plaintiff Amalgamated Bank is awarded $20,612.50 for its representation of the Settlement Class during the litigation.. Signed by District Judge Max O. Cogburn, Jr on 11/2/2015. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:12-cv-00456-MOC-DSC
MAURINE NIEMAN, ET AL.,
Plaintiffs,
Vs.
DUKE ENERGY CORPORATION, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

CLASS ACTION
ATTORNEYS’ FEES ORDER

THIS MATTER having come before the Court on August 12, 2015, on the motion of
Lead Counsel for an award of attorneys’ fees and expenses and Lead Plaintiff’s expenses in the
litigation, and 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 March 5, 2015 (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 Settlement Class who have not timely and
validly requested exclusion.
3.

The Court hereby awards Lead Counsel attorneys’ fees of 18% of the Settlement

Fund, plus expenses in the amount of $191,738.27, together with the interest earned on both
amounts for the same time period and at the same rate as that earned on the Settlement Fund
until paid. The Court finds that the amount of fees awarded is appropriate and that the amount
1

of fees awarded is fair and reasonable under the “percentage-of-recovery” method after an
analysis of relevant factors outlined by the Fifth Circuit in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714-717-19 (5th Cir. 1974), which were adopted by the Fourth Circuit in Barber
v. Kimbrell’s, 577 F.2d 216, 226 (4th Cir. 1978). In so doing, the court has considered the
objections to the fee award filed by Donald Robert Pierson II and Fiduciary Counselors, Inc.
While plaintiffs’ counsel requested 24.5%, the requested lodestar multiplier of 8.75 (which is
merely a crosscheck) is far beyond the range courts have found acceptable in other large
securities actions. Most courts agree that the typical lodestar multiplier in a large post-PSLRA
securities class actions ranges from 1.3 to 4.5. In re Cendant Corp. PRIDES Litigation, 243 F.3d
722 (3rd Cir. 2001).

A multiplies of 4.5 would, in the circumstances of this case, be

inappropriately too low. Where courts do approve a particularly high multiplier, they have held,
as follows:
the Court is not uncomfortable with deviating from the normal range of lodestar
multipliers, at least to some extent. Given the outstanding settlement in this case
and the noticeable skill of counsel, a lodestar multiplier greater than the average
would not be unwarranted or unprecedented. Indeed, the Court has adopted the
percentage approach, and the lodestar cross check is but one of several factors it
must consider; it should not unilaterally control the Court's analysis. From the
Court's analysis of the previous factors, the Court has found that approximately
18% is a reasonable award, which would yield a lodestar multiplier of six. Though
significantly above average, the Court finds this award reasonable under the
circumstances.
In re Cardinal Health Inc. Securities Litigations, 528 F.Supp.2d 752, 768 (S.D.Ohio 2007). Even
at 18%, the multiplier remains high, but is facially reasonable under the circumstances of this
action wherein counsel took substantial risk, results were not assured, the legal issues were
difficult, and the class was broad. The amount of the settlement and the efficiency of counsel in
reaching such a resolution reinforce an upward variance from a 4.5 multiplier, but not an 8.0
multiplier. Considering all of the arguments presented, the court finds that the work
2

accomplished in this case -- which was substantial -- is reasonably compensated by an 18% fee
when the Johnson factors are considered and then crosschecked.
4.

The fees and expenses shall be allocated among plaintiffs’ Counsel in a manner

which, in Lead Counsel’s good-faith judgment, reflects each such counsel’s contribution to the
institution, prosecution, and resolution of the litigation. Pursuant to 15 U.S.C. §77z-1(a)(4) and
15 U.S.C. §78u-4(a)(4), Lead Plaintiff Amalgamated Bank is awarded $20,612.50 for its
representation of the Settlement Class during the litigation.
5.

The awarded attorneys’ fees and expenses and interest earned thereon, shall

immediately be paid to Lead Counsel subject to the terms, conditions, and obligations of the
Stipulation, and in particular ¶¶8.1-8.2 thereof, which terms, conditions, and obligations are
incorporated herein.
ORDER
IT IS, THEREFORE, ORDERED that Lead Counsel’s Motion for an Award of
Attorneys’ Fees and Expenses (ECF No. 96) is GRANTED attorneys’ fees of 18% of the
Settlement Fund are ALLOWED, plus expenses in the amount of $191,738.27, together with
the interest earned on both amounts for the same time period and at the same rate as that earned
on the Settlement Fund until paid. Lead Plaintiff Amalgamated Bank is awarded $20,612.50 for
its representation of the Settlement Class during the litigation.

Signed: November 2, 2015

3