Gilbert v. Abercrombie & Fitch Co. et al

Filing 28

REPORT AND RECOMMENDATION re 22 MOTION for Settlement Final Approval and Application for Award of Attorneys' Fees and Costs - It is hereby RECOMMENDED that (a) because the proposed settlement of the action on the terms and conditions set forth in the Stipulation and Settlement Agreement is fair, reasonable, adequate, and in the best interest of the Class, the Settlement Agreement be finally approved by the Court; (b) the Class be finally certified for settlement purpos es; (c) the Action be dismissed with prejudice pursuant to the terms of the Stipulation and Settlement Agreement; (d) the Class, Class Plaintiff Representative, and defendants be bound by the release set forth in the Stipulation and Settlement Agreem ent; and (e) Class Counsel be awarded reasonable attorneys fees in the amount of $165,000 and reimbursement of expenses in the amount of $2,000. Objections to R&R due by 8/22/2016. Signed by Magistrate Judge Norah McCann King on 8/5/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ERIC GILBERT, on behalf of himself
and all others similarly situated,
Plaintiffs,
Case No. 2:15-cv-2854
Judge Smith
Magistrate Judge King

v.
ABERCROMBIE & FITCH, CO.,
et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court, pursuant to an order of
reference, see Preliminary Approval Order, ECF No. 19, p. 2, on
Plaintiff’s Motion for Final Approval of Class Action Settlement and
Application for an Award of Attorneys’ Fees and Reimbursement of
Expenses, ECF No. 22 (“Plaintiff’s Motion for Final Approval”).
Court conducted a fairness hearing on June 28, 2016.

The

Order, ECF No.

26.
I.

Background
Plaintiffs initiated this stockholder class action in the Court

of Common Pleas for Franklin County, Ohio, on August 22, 2015, against
defendants Abercrombie & Fitch Co. (“ANF” or “the Company”), Wells
Fargo Bank, N.A. (“Wells Fargo”), and Arthur C. Martinez, James B.
Bachmann, Bonnie R. Brooks, Terry L. Burman, Sarah M. Gallagher,
Michael E. Greenlees, Archie M. Griffin, Charles R. Perrin, Stephanie
M. Shern, and Craig R. Stapleton (together, the “Individual

Defendants”).

Defendants removed the action to this Court on

September 24, 2015, pursuant to the Class Action Fairness Act, 28
U.S.C. §§ 1332(d), 1453.

ECF No. 1.

shareholder who resides in Florida.
(caption); ¶ 11.

Plaintiff Gilbert is an ANF
Complaint, ECF No. 2, page 1

ANF is a citizen of Delaware and Ohio.

Wells Fargo is a citizen of South Dakota.

Id. at ¶ 16.

Individual Defendants is a citizen of Florida.
A.

Id. at ¶ 12.
None of the

Id. at 1 (caption).

Alleged Wrongdoing

The Individual Defendants entered into two credit agreements on
August 7, 2014, with Wells Fargo serving as administrative agent:

(1)

a term loan credit agreement that provides an unsecured term loan to
ANF in the principal amount of $300 million, maturing on August 7,
2021 (“Term Loan Credit Agreement”); and (2) a revolving credit
agreement that provides up to $400 million on a revolving basis,
maturing on August 7, 2019 (the “Revolving Credit Agreement”)
(collectively with the Term Loan Credit Agreement, “the Credit
Agreements”).

Complaint, ¶¶ 2, 26-28; Stipulation and Agreement of

Settlement, ECF No. 23-1, § I.2.

Under Section 8.01(j) of the Credit

Agreements, a “Change of Control” constitutes an “Event of Default.”
Complaint, ¶ 31.

Section 8.02 of the Credit Agreements provides that

upon an “Event of Default,” the “Administrative Agent” may, or at the
request of the “Required Lenders” shall, “declare the unpaid principal
amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other Obligations . . . to be immediately due and
payable, without presentment, demand, protest or other notice of any
kind[.]”

Id. (emphasis added by Complaint).

2

Under Section 1.01 of the Credit Agreements, the definition of
“Change of Control” contained a provision whereby a change of control
would be triggered by, inter alia, “the occupation of a majority of
the seats (other than vacant seats) on the board of directors of the
Parent by Persons who were neither (i) nominated by the board of
directors nor (ii) appointed by directors so nominated [the “Dead Hand
Proxy Put”].”

Complaint, ¶ 30.

Under the Credit Agreements, the board of directors (“the Board”)
does not have an approval right that would permit it to disarm the
Dead Hand Proxy Put provisions by approving—-even if not endorsing-the dissident director nominees.

Id. at ¶ 3.

Under these

circumstances, a successful proxy fight that replaced a majority of
the Board would qualify as a change of control under the Credit
Agreements and trigger debt acceleration.

Id. at ¶¶ 3-4.

As of May

2, 2015, the gross amount outstanding under the Term Loan Credit
Agreement was $298.5 million.

Id. at ¶ 3.

Both Credit Agreements also contain another debt acceleration
provision.

Id. at ¶¶ 5, 40.

More specifically, the definition of

“Change of Control” includes, inter alia, the acquisition of 33% or
more of ANF stock by any person or group, which then triggers an event
of default that accelerates the debt and makes it immediately due and
payable (the “Poison Put”).

Id. at ¶¶ 5, 40-43.

The Complaint identifies the deterrent effect of these debt
acceleration provisions as two-fold.

Id. at ¶ 6.

First, such

provisions deter potential activists from seeking seats on the Board
because such provisions coerce stockholders to vote in favor of the

3

incumbent directors in order to avoid accelerating ANF’s approximately
$300 million in debt.

Id.

Second, the Poison Put provisions also may

prevent potential acquirers from seeking to initiate a takeover
because the Board has unlawfully ceded to ANF’s lenders the authority
to approve or reject a takeover.

Id.

Plaintiffs filed the instant action on August 22, 2015, asserting
claims of breach of fiduciary duty as against the Individual
Defendants (Count I) and aiding and abetting the Individual
Defendants’ breach of fiduciary duty as against Wells Fargo (Count
II).

Id. at ¶¶ 55-63.

The Complaint seeks declaratory and injunctive

relief, including enjoining defendants from enforcing the Dead Hand
Proxy Puts and Poison Puts, as well as an award of costs and
attorneys’ fees.
B.

Negotiations and Preliminary Approval

Within weeks of the filing of this action, ANF agreed to revise
the Credit Agreements to eliminate the threats posed by the Dead Hand
Proxy Put provisions (“the Amendments”).

Declaration of Robin

Winchester, ECF No. 23, ¶ 13 (“First Winchester Declaration”);
Stipulation and Agreement of Settlement, § II.6, § III.B.17.

More

specifically, ANF modified the Revolving Credit Agreement by removing
from the definition of “Change of Control” the Dead Hand Proxy Put
provisions.

See Id.; ANF’s Current Report (Form 8-K dated September

10, 2015), ECF No. 23-13, PAGEID#1318.

Similarly, ANF amended the

Term Loan Credit Agreement by amending the definition of “Change of
Control” so that it does not treat changes in the composition of the
Board differently in the context of actual or threatened proxy

4

solicitations.

Id. at PAGEID#:1318-1319.

effective September 10, 2015.

The Amendments became

Id.; Stipulation and Agreement of

Settlement, § II.6.
In light of the Amendments, counsel for the parties began arm’slength negotiations regarding possibly settling the action on a classwide basis.

First Winchester Declaration, ¶ 14.

Approximately five

months later, on or around February 18, 2016, counsel for the parties
concluded their settlement discussions and finalized the documentation
of their agreement.

Id. at ¶ 15.

On March 16, 2016, Plaintiff’s

Unopposed Motion for Preliminary Approval of Class Action Settlement,
ECF No. 18, was filed.

On March 24, 2016, the Court preliminarily

approved the proposed settlement, preliminarily certified a class for
settlement purposes, appointed the named plaintiff as Class
Representative, appointed lead counsel for the class, approved and
directed the issuance of notice to the class, and referred the matter
to the undersigned for a fairness hearing
to, among other things: (i) determine whether the proposed
Settlement, on the terms and conditions provided for in the
Stipulation, should be approved by the Court; (ii)
determine whether the Released Claims against Defendants
should be dismissed with prejudice as set forth in the
Stipulation; (iii) determine whether Plaintiff’s Counsel’s
application for an award of Attorneys’ Fees and Expenses
should be approved; and (iv) rule on such other matters as
the Court may deem appropriate.
Preliminary Approval Order, ECF No. 19, pp. 2-3.

The Court also

established a procedure for the filing of written objections to the
proposed settlement.

Id. at 4-5.

5

The undersigned held a fairness hearing, conducted pursuant to
Fed. R. Civ. P. 23(e), on June 28, 2016.

Only counsel for the parties

appeared.
This matter is now ripe for consideration.
C.

Preliminarily Certified Class

The preliminarily certified Class of plaintiffs consists of the
following:
[A]ll persons who held ANF common stock at any time during
the period from August 7, 2014 through and including the
close of trading on the date of the Settlement Hearing1
[hearing at which the parties will present the Stipulation
and Agreement of Settlement for approval by the Court]
(“the Class Period”) and who continued to hold ANF common
stock as of the end of the Class Period, but excluding (i)
the Individual Defendants and their respective immediate
family members; and (ii) agents, attorneys, heirs,
successors-in-interest or assigns of any of the foregoing
excluded persons.
Stipulation and Agreement of Settlement, § III.A.16.
Preliminary Approval Order, p. 3.

Plaintiff Eric Gilbert has been

appointed as Class Representative of the Class.
D.

See also

Id.

The Proposed Stipulation and Agreement of Settlement

The Stipulation and Agreement of Settlement memorializes the
Amendments to the Credit Agreements effective September 10, 2015.
at § III.B.17.

Id.

The proposed settlement also provides for a new

procedure, which plaintiff summarizes as follows:
[T]he ANF Board will adopt a resolution instructing the
General Counsel of the Company that, during the designated
period, certain proposed agreements that include a Changeof-Control Provision must be presented to the ANF Board,
prior to execution and delivery, for review of any impact
of said Change-of-Control Provision on the ANF Stockholder
voting franchise, among other factors in the Board’s
1

Capitalized terms not otherwise defined have the meaning indicated in the
Stipulation and Agreement of Settlement.

6

exercise of its business judgment. See id. [Stipulation
and Agreement of Settlement] at § III.B.18. This new
procedure requires Board-level consideration before the
Company can enter into any defined Agreements with
provisions similar to the Dead Hand Proxy Puts at issue
which could impinge on ANF’s stockholders’ voting rights.
Plaintiff’s Motion for Final Approval, p. 6 (citing Stipulation and
Agreement of Settlement).

The Stipulation and Agreement of Settlement

releases all claims by the Class Plaintiff, ANF, each of ANF’s
stockholders, and defendants.
Settlement, § III.B.19-20.

Stipulation and Agreement of

The proposed settlement further provides

that ANF will pay up to $165,000.00 for plaintiff’s attorneys’ fees
and expenses plus reimbursement of expenses not to exceed $2,000.00,
and will take no position on plaintiff’s application for such fees and
expenses.

Id. at § III.D.21.

The proposed settlement contemplates

that the Court “may consider and rule upon fairness, reasonableness
and adequacy of the Settlement independently of any award of
Attorneys’ Fees and Expenses.”

Id.

Class Plaintiff’s Counsel “shall

allocate the attorneys’ fees awarded amongst Class Plaintiff’s Counsel
in a manner which they, in good faith, believe reflects the
contributions of such counsel.”

Id. at § III.D.22.

The proposed

settlement does not contemplate any other monetary payment, either to
ANF or to its stockholders.
E.

Notice to ANF Stockholders

In accordance with the Preliminary Approval Order, ECF No. 19,
ANF notified the class of the proposed settlement by:

(1) filing a

Form 8-K with the Unites States Securities and Exchange Commission
(“SEC”); and (2) posting on the “Investors” page of ANF’s website,
which shall remain throughout the Settlement Effective Date.
7

First

Winchester Declaration, ¶ 18; ANF’s Current Report (Form 8-K), ECF No.
23-14.

These forms of notice provided the ANF stockholders with,

inter alia, a copy of the Notice of Pendency and Proposed Settlement
of Class Action, ECF No. 18-3 (“the Notice”); the Stipulation and
Agreement of Settlement; and a copy of the Preliminary Approval Order,
ECF No. 19.

First Winchester Declaration, ¶ 18.

The Notice detailed

the proposed settlement, including the request for attorneys’ fees and
expenses.

Id. at ¶ 19.

The Notice also provided the time and place

of the fairness hearing and explained the procedures for objecting to
the proposed settlement and request for fees.

Id.

The Notice advised

Class members that the deadline for objecting was June 14, 2016.

Id.

ANF also gave notice to the Class consistent with that which is
required under the Class Action Fairness Act (“CAFA”) by sending
formal service of information about the settlement and the action to
the Attorney General of the United States and the Attorneys General of
the States designated in the statute.

Id.; Declaration of John J.

Kulewicz (“Kulewicz Declaration”), ECF No. 20, ¶¶ 2-6.

No class

members have objected to the settlement.
Plaintiff moved for final approval of the settlement agreement
and for an award of attorneys’ fees and expenses on June 7, 2016.
Plaintiff’s Motion for Final Approval.
to plaintiff’s motion.

See

Defendants have not responded

No appearance was made by or on behalf of any

Class member or objector at the fairness hearing.
This matter is now ripe for the Court’s consideration.

8

II.

Class Certification
A.

Standard

A class action “may only be certified if the trial court is
satisfied, after a rigorous analysis, that the prerequisites of Rule
23(a) have been satisfied.”

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

147, 161 (1982).

See also Stout v. J.D. Byrider, 228 F.3d 709, 716

(6th Cir. 2000).

Rule 23(a) of the Federal Rules of Civil Procedure

establishes four prerequisites to class certification:
(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 or defenses of the representative parties
are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a).

“In addition to fulfilling the four

prerequisites of Rule 23(a), the proposed class must also meet at
least one of the three requirements listed in Rule 23(b).”

In re

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d
838, 850 (6th Cir. 2013) (citing Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338 (2011)).

Plaintiffs in this action seek class certification

under Rule 23(b)(1)(A) and (b)(2).

“The trial court has broad

discretion in deciding whether to certify a class, but that discretion
must be exercised within the framework of Rule 23.”
Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).

In re Am. Med.

This Court will

consider each of the Rule 23 requirements for certification.

9

B.

Numerosity

Rule 23(a)(1) requires the class to be “so numerous that joinder
of all members is impracticable[.]”

Fed. R. Civ. P. 23(a)(1).

Although “there is no strict numerical test, ‘substantial’ numbers
usually satisfy the numerosity requirement.”

Daffin v. Ford Motor

Co., 458 F.3d 549, 552 (6th Cir. 2006) (quoting In re Am. Med. Sys.,
75 F.3d at 1079).

The Company publicly traded its common stock on the

New York Stock Exchange under the ticker symbol “ANF.”

The Company’s

filings with the SEC on June 9, 2014, reflect 72,779,580 shares of ANF
stock outstanding as of May 30, 2014.

See ANF’s Form 10-Q filed with

the SEC on June 9, 2014 at
https://www.sec.gov/Archives/edgar/data/1018840/000101884014000042/anf
-2014503x10q.htm.

Although plaintiff is not certain of the exact

number of class members, the information filed with the SEC reflects
that the number of holders of ANF common stock on August 7, 2014 was
likely in the thousands geographically dispersed throughout the United
States.

See id.

Joinder of thousands – or tens of thousands – of

class members across multiple states would be impracticable.

The

Court concludes that this large number of potential class members
satisfies the numerosity requirement.

See, e.g., In re Whirlpool

Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 852
(6th Cir. 2013) (“Evidence of these [thousands of] shipments to
retailers is sufficient to show numerosity of a class consisting of
all Ohio residents who purchased a Duet in Ohio primarily for
personal, family or household purposes.”); Adams v. Anheuser-Busch
Companies, Inc., No. 2:10-CV-826, 2012 WL 1058961, at *4 (S.D. Ohio

10

Mar. 28, 2012) (finding a class of approximately 60 individuals
geographically dispersed throughout the United States sufficient to
satisfy the numerosity requirement).
C.

Commonality

“Rule 23(a)(2) requires plaintiffs to prove that there are
questions of fact or law common to the class . . . .”

Young v.

Nationwide Mut. Ins. Co., 693 F.3d 532, 542 (6th Cir. 2012).

“To

demonstrate commonality, plaintiffs must show that class members have
suffered the same injury.”

In re Whirlpool Corp., 722 F.3d at 852

(citing Dukes, 131 S. Ct. at 2551).

“Their claims must depend upon a

common contention . . . of such a nature that it is capable of
classwide resolution — which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each
one of the claims in one stroke.”

Dukes, 564 U.S. at 350.

“This

inquiry focuses on whether a class action will generate common answers
that are likely to drive resolution of the lawsuit.”
Corp., 722 F.3d at 852.

In re Whirlpool

See also Davis v. Cintas Corp., 717 F.3d 476,

487 (6th Cir. 2013).
“The commonality test is qualitative rather than quantitative,
that is, there need be only a single issue common to all members of
the class.”
omitted).

In re Am. Med. Sys., 75 F.3d at 1083 (internal quotations
See also Dukes, 564 U.S. at 359 (“We quite agree that for

purposes of Rule 23(a)(2) ‘[e]ven a single [common] question’ will
do[.]”) (internal quotations and citations omitted; alterations in
original); In re Whirlpool Corp., 722 F.3d at 853.

“̔[T]he mere fact

that questions peculiar to each individual member of the class action

11

remain after the common questions of the defendant’s liability have
been resolved does not dictate the conclusion that a class action is
impermissible.’”

Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501

F.3d 592, 619 (6th Cir. 2007) (quoting Sterling v. Velsicol Chem.
Corp., 855 F.2d 1188, 1197 (6th Cir. 1988)).
This case presents common issues of fact sufficient to satisfy
the requirements of Rule 23(a)(2).

The Complaint alleges that the

Individual Defendants acted in breach of their fiduciary duties and
that Wells Fargo aided and abetted that breach in connection with the
Dead Hand Proxy Put and Poison Put provisions contained in the Credit
Agreements.

Whether the Individual Defendants acted in breach of

their fiduciary duties by approving and entering into the Credit
Agreements containing these provisions is a question of law common to
every member of the class.

See Complaint, ¶ 50.

Whether Wells Fargo

aided and abetted that breach is also a common question of law and
fact.

Id.

Finally, whether the Dead Hand Proxy Puts and Poison Puts

should be invalidated presents a common question of law.

Id.

Accordingly, there are issues of law and fact common to all members of
the class sufficient to satisfy the requirements of Rule 23(a)(2).
D.

Typicality

“Rule 23(a)(3) requires proof that plaintiffs’ claims are typical
of the class members’ claims.”

Young, 693 F.3d at 542.

“Typicality

is met if the class members’ claims are ̔fairly encompassed by the
named plaintiffs’ claims.’”

In re Whirlpool Corp., 722 F.3d at 852

(quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir.
1998)).

“This requirement insures that the representatives’ interests

12

are aligned with the interests of the represented class members so
that, by pursuing their own interests, the class representatives also
advocate the interests of the class members.”

Id. at 852-53 (citing

Sprague, 133 F.3d at 399).
In the case presently before the Court, Plaintiff, a current ANF
shareholder, was an ANF shareholder at the time of the alleged
wrongdoing.

Complaint, ¶ 11.

Plaintiff seeks to represent a class of

persons who held ANF common stock at any time during the period from
August 7, 2014 until the fairness hearing.

Under these circumstances,

plaintiff’s interests are typical of those of the class.

More

specifically, the underlying facts and legal theories underlying
plaintiff’s claims, i.e., the inclusion of the Dead Hand Proxy Put and
Poison Put in the Credit Agreements as well as the alleged breach of
fiduciary duties and the alleged aiding and abetting thereof, underlie
the class members’ claims.

The typicality requirement of Rule

23(a)(3) is therefore satisfied.
E.

Fairness and Adequacy

Rule 23(a)(4) requires that “the representative parties will
fairly and adequately protect the interests of the class.”
Civ. P. 23(a)(4).

Fed. R.

“The adequacy inquiry under Rule 23(a)(4) serves to

uncover conflicts of interest between named parties and the class they
seek to represent.”
(1997).

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625

“A class representative must be part of the class and possess

the same interest and suffer the same injury as the class members.”
Id. (quotations omitted).

Two considerations underlie the

determination of adequacy of representation: “̔1) the representative

13

must have common interests with unnamed members of the class, and 2)
it must appear that the representatives will vigorously prosecute the
interests of the class through qualified counsel.’”

In re Am. Med.

Sys., 75 F.3d at 1083 (quoting Senter v. Gen. Motors Corp., 532 F.2d
511, 525 (6th Cir. 1976)).

“The adequate representation requirement

overlaps with the typicality requirement because in the absence of
typical claims, the class representative has no incentives to pursue
the claims of the other class members.”

Id.

As described above, the claims of Plaintiff, the Class
Representative, are typical of the class, incentivizing him to pursue
the class claims.

No objections have been filed with the Court

expressing concern that Plaintiff will not vigorously pursue the class
claims.

Based on this record, the Court is persuaded that, in

pursuing his own interests and claims, Plaintiff will also advocate
for the interests of the class members.
In addition, Plaintiff has retained Class Counsel who are
experienced practitioners in class action litigation and are qualified
to handle this matter.

See, e.g., First Winchester Declaration, ¶ 6;

Declaration Mark Landes, ECF No. 23-3, ¶ 3 (“First Landes
Declaration”); Declaration of Jeremy Friedman, ECF No. 23-4, ¶ 2
(“First Friedman Declaration”); Exhibit 5, attached to First
Winchester Declaration (copy of profiles of firm Kessler Topaz Meltzer
& Check, LLP (“Kessler Topaz”) and its attorneys).

Because the Class

Representative and Class Counsel have demonstrated an ability to
vigorously pursue the claims of the class, and because there is no
conflict of interest or antagonism with Plaintiff or the rest of the

14

class, the Court concludes that the Class Representative and Class
Counsel will fairly and adequately protect the interests of the class.
Plaintiff asks that the law firm of Kessler Topaz be appointed as
lead counsel for the class pursuant to Rule 23(g).

That rule requires

a court to consider several factors:
(i) the work counsel has done in identifying or
investigating potential claims in the action; (ii)
counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in the
action; (iii) counsel’s knowledge of the applicable law;
and (iv) the resources that counsel will commit to
representing the class[.]
Fed. R. Civ. P. 23(g)(1)(A).
In the case presently before the Court, Kessler Topaz assisted in
reaching a settlement requiring defendants to remove the Dead Hand
Proxy Put and Poison Put provisions.
Declaration, ¶ 6.

See supra; Winchester

Doing so required Kessler Topaz to inspect and

analyze the Company’s filings with the SEC as well as research the law
applicable to such provisions and identify potential defenses.
Kessler Topaz has extensive experience in class action litigation in
federal and state courts throughout the United States.

See First

Winchester Declaration, ¶ 6; Exhibit 5, attached thereto (copy of
Kessler Topaz resume).

Kessler Topaz is also skilled in shareholder

and transactional litigation, focusing on such a practice over the
past 24 years and receiving a Martindale Hubbell “AV” rating.

Id.

Kessler Topaz has extensive available resources, including nearly 100
lawyers specializing in complex stockholder litigation with offices in
California and Pennsylvania.

Id.

For all these reasons, then, the

15

Court concludes that Kessler Topaz will adequately serve as lead
counsel.
F.

Rule 23(b)(1)(A)

Having concluded that the four prerequisites of Rule 23(a) have
been met, the Court must now determine whether Plaintiff has
established that this litigation may properly be maintained as a class
action under one of the subdivisions of Rule 23(b).

Under Rule

23(b)(1)(A) a class action is appropriate where “prosecuting separate
actions by or against individual class members would create a risk of
. . . inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of conduct
for the party opposing the class[.]”

“A class action is appropriate

under this subsection when ‘the party is obliged by law to treat the
members of the class alike[.]’”

Pipefitters Local 636 Ins. Fund v.

Blue Cross Blue Shield of Michigan, 654 F.3d 618, 633 (6th Cir. 2011)
(quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)).
The Court finds that certification of a non-opt-out class under
Rule 23(b)(1) is appropriate in this action.

Plaintiff asserts claims

of breach of fiduciary duties and aiding and abetting such breach.
These fiduciary duties are owed to all stockholders and a breach of
such duties impacts all of the stockholders.

Accordingly, if this

Court denies class certification, the individual ANF stockholders
could file hundreds or thousands of separate actions, risking
“inconsistent or varying adjudications” that would “establish
incompatible standards of conduct” for defendants.
23(b)(1)(A).

Fed. R. Civ. P.

For these reasons, certification under Rule 23(b)(1) is

16

appropriate.

See Shanehchian v. Macy’s, Inc., No. 1:07-CV-00828, 2011

WL 883659, at *9 (S.D. Ohio Mar. 10, 2011) (certifying class under,
inter alia, Rule 23(b)(1)(A) where action asserts breach of fiduciary
duty claim); In re Nationwide Fin. Servs. Litig., No. 2:08-CV-00249,
2009 WL 8747486, at *11 (S.D. Ohio Aug. 19, 2009) (finding
certification under Rule 23(b)(1) appropriate where various
shareholder actions could result in inconsistent judgments).
G.

Rule 23(b)(2)

Plaintiff contends that certification of a non-opt-out class
under Rule 23(b)(2) is also appropriate.

This Court agrees.

Certification under this sub-section of the rule is proper if “the
party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class
as a whole[.]”

“The key to the (b)(2) class is the indivisible nature

of the injunctive or declaratory remedy warranted— the notion that the
conduct is such that it can be enjoined or declared unlawful only as
to all of the class members or as to none of them.”

Dukes, 564 U.S.

at 360 (internal quotation marks and citations omitted).
The alleged misconduct in the instant case, i.e., the inclusion
of the Dead Hand Proxy Put and Poison Put provisions, can be “declared
unlawful only as to all of the class members or as to none of them[.]”
The removal of such provisions in the Credit Agreements therefore
impacts all of the stockholders and protection against the inclusion
of comparable provisions in the future likewise benefits all

17

stockholders.

The Court therefore concludes that certification of a

non-opt-out class under Rule 23(b)(2) is also proper.
III. Approval of the Proposed Class Settlement
Rule 23(e) governs settlements of class actions and imposes the
following procedural safeguards:
(1) The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is
fair, reasonable, and adequate.
(3) The parties seeking approval must file a
identifying any agreement made in connection
proposal.

statement
with the

. . .
(5) Any class member may object to the proposal if it
requires court approval under this subdivision (e); the
objection may be withdrawn only with the court’s approval.
Fed. R. Civ. P. 23(e).2
The terms of the settlement were previously submitted to the
Court, which preliminarily approved those terms.
Order, ECF No. 19.

Preliminary Approval

Notice provided to the class, as described supra,

was effected in conformity with the directions of the Court.

A

fairness hearing was conducted pursuant to Fed. R. Civ. P. 23(e) on
June 28, 2016.

The Court must now consider whether the settlement

agreement is “fair, reasonable, and adequate.”
23(e)(2).

Fed. R. Civ. P.

In making this determination, the Court considers several

factors:
2

Rule 23(e)(4), which is not applicable to this case, provides: “If the class
action was previously certified under Rule 23(b)(3), the court may refuse to
approve a settlement unless it affords a new opportunity to request exclusion
to individual class members who had an earlier opportunity to request
exclusion but did not do so.”

18

“(1) the risk of fraud or collusion; (2) the complexity,
expense and likely duration of the litigation; (3) the
amount of discovery engaged in by the parties; (4) the
likelihood of success on the merits; (5) the opinions of
class counsel and class representatives; (6) the reaction
of absent class members; and (7) the public interest.”
Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235,
244 (6th Cir. 2011) (quoting UAW v. Gen. Motors Corp., 497 F.3d 615,
631 (6th Cir. 2007)).

The Court “enjoys wide discretion in assessing

the weight and applicability of these factors.”

Granada Invs., Inc.

v. DWG Corp., 962 F.2d 1203, 1205-06 (6th Cir. 1992).

Finally, in

considering these factors, the task of the court “is not to decide
whether one side is right or even whether one side has the better of
these arguments. . . .

The question rather is whether the parties are

using settlement to resolve a legitimate legal and factual
disagreement.”
A.

UAW, 497 F.3d at 632.

Risk of Fraud or Collusion

Having carefully examined the terms of the Stipulation and
Agreement of Settlement, the Court now turns to the first factor of
its inquiry, i.e., the risk of fraud or collusion.
Dev. Co., 636 F.3d at 244.

See Poplar Creek

“Courts presume the absence of fraud or

collusion unless there is evidence to the contrary.”

IUE-CWA v. Gen.

Motors Corp., 238 F.R.D. 583, 598 (E.D. Mich. 2006).

This is a

complex stockholder class action.

The Stipulation and Agreement of

Settlement is the product of months of protracted, arm’s-length,
“hard-fought” negotiations between counsel for the parties.
Winchester Declaration, ¶¶ 8, 23-24.

First

For example, beginning around

September 2015, counsel engaged in repeated discussions and exchanged
numerous drafts of proposed settlement terms.
19

Id.

Throughout these

discussions, the parties requested extensions of time and filed
reports updating the Court on the status of these negotiations, which
culminated in the Stipulation and Agreement of Settlement.

Id.

See

also ECF Nos. 6, 11, 13, 15, 17 (joint motions and status reports).
Despite notice and the opportunity to object, no objections have been
filed.

Based on this record, there is no evidence, or even

suggestion, of fraud or collusion.

This factor therefore weighs in

favor of approval of the Stipulation and Agreement of Settlement.
B.

Complexity, Expense, and Likely Duration of the Litigation

“Generally speaking, ‘[m]ost class actions are inherently complex
and settlement avoids the costs, delays, and multitude of other
problems associated with them.’”

In re Telectronics Pacing Sys.,

Inc., 137 F. Supp.2d 985, 1013 (S.D. Ohio 2001) decision clarified,
148 F. Supp.2d 936 (S.D. Ohio 2001) (quoting In re Austrian & German
Bank Holocaust Litig., 80 F. Supp.2d 164, 174 (S.D.N.Y. 2000)).
action is no exception to that general rule.

This

The action has been

pending for nearly one year and plaintiff has already incurred more
than $100,000.00 in attorneys’ fees.
Declaration, ¶ 47.

See, e.g., First Winchester

In the absence of a settlement, continued

litigation would span years, requiring fact discovery, expert
discovery, formal class certification, and other motion practice,
including post-trial motions and appeals; that litigation would be
both extensive and costly.

See, e.g., id. at ¶ 30.

Consideration of

this factor therefore weighs in favor of approving the Stipulation and
Settlement Agreement.

20

C.

Amount of Discovery Engaged in by the Parties

Shortly after this action was filed, the parties began to engage
in arm’s-length negotiations.

First Winchester Declaration, ¶¶ 13-14.

In light of these negotiations and at the joint request of the
parties, ECF No. 11, the preliminary pretrial conference was vacated,
Order, ECF No. 12, and was never rescheduled in light of the
negotiated settlement.

While plaintiff conducted an extensive

investigation throughout the development and prosecution of this
action, First Winchester Declaration, ¶ 25, there was no need to
engage in formal discovery because a settlement was reached before the
need arose.
D.

This factor is therefore neutral.

Likelihood of Success on the Merits

“The most important of the factors to be considered in reviewing
a settlement is the probability of success on the merits.

The

likelihood of success, in turn, provides a gauge from which the
benefits of the settlement must be measured.”

Poplar Creek Dev. Co.,

636 F.3d at 245 (quoting In re Gen. Tire & Rubber Co. Sec. Litig., 726
F.2d 1075, 1086 (6th Cir. 1984)).
The Complaint alleges that the Individual Defendants acted in
breach of their fiduciary duties by improperly agreeing to the Dead
Hand Proxy Put and Poison Put provisions in the Credit Agreements and
that Wells Fargo aided and abetted the Individual Defendants’ breach
of fiduciary duties.

Complaint, ¶¶ 32-39, 44-46, 55-63.

Although

this Court has not considered the merits of plaintiff’s claims, the
likelihood of success on such claims, especially that addressing the
Poison Put provision, is uncertain.

21

For example, because ANF is

incorporated in Delaware, id. at ¶ 12, Delaware law governs the
fiduciary duties of its directors.

See, e.g., In re Abercrombie &

Fitch Co. Derivative Litig., No. 2:05-CV-00819, 2009 WL 9523196, at *2
(S.D. Ohio Mar. 12, 2009).

Plaintiff faces significant hurdles in

proving a breach of fiduciary duty under Delaware law.

Under that

law, corporate directors must “use that amount of care which
ordinarily careful and prudent men would use in similar
circumstances[,]” Graham v. Allis–Chalmers Mfg. Co., 188 A.2d 125, 130
(Del. 1963), and “consider all material information reasonably
available” in making business decisions, Brehm v. Eisner, 746 A.2d
244, 259 (Del. 2000).

Alleged deficiencies in the performance of

directors’ duties are actionable only if their actions are grossly
negligent.

Id.

In order to establish a breach, a plaintiff pursuing

such a claim must establish that a decision of the board resulted in
loss because that decision was ill advised or grossly negligent or
that a board's failure to act resulted in loss because due attention
would have prevented the loss.

See In re Caremark Int’l Inc.

Derivative Litig., 698 A.2d 959, 967 (Del.Ch. 1996).
task.

This is no easy

See id. (“The theory here advanced is possibly the most

difficult theory in corporation law upon which a plaintiff might hope
to win a judgment.”).
Under these circumstances, it cannot be said that the likelihood
of success on the merits of Plaintiff’s claims is certain.

This

factor therefore weighs in favor of approval of the Settlement
Agreement.

22

E.

Opinions of Class Counsel and Class Representatives

Experienced counsel on both sides of this case recommend that the
Court approve the Settlement Agreement and this recommendation is
entitled to deference.

See e.g., Williams v. Vukovich, 720 F.2d 909,

922-23 (6th Cir. 1983) (“The court should defer to the judgment of
experienced counsel who has competently evaluated the strength of his
proofs[,]” and that deference “should correspond to the amount of
discovery completed and the character of the evidence uncovered.”).
Here, Class Counsel have extensive experience in class actions as well
as shareholder class and derivative actions.

See First Winchester

Declaration, ¶ 6; Exhibit 5, attached thereto (copy of Kessler Topaz
resume); Second Landes Declaration, ¶ 3; First Friedman Declaration, ¶
2.

With nearly 100 attorneys specializing in complex stockholder

litigation, Kessler Topaz, Lead Class Counsel, is particularly
experienced in stockholder and transactional litigation.
Winchester Declaration, ¶ 6.

First

With the breadth of this experience,

Class Counsel understand the legal standards and defenses involved in
this action and understand what is in the best interests of the Class.
Id. at ¶ 24.

Equipped with this experience and understanding, Class

Counsel have concluded that the proposed settlement is fair,
reasonable, and adequate based on the defenses and risks involved in
proving liability and damages as well as the further risk, delay, and
expense associated with continued litigation.
Declaration, ¶¶ 8-9, 24-27.

See First Winchester

Counsel for defendants negotiated the

Stipulation and Settlement Agreement, which reflects defendants’
conclusion that “it is desirable that the Gilbert Action be fully and

23

finally settled in the manner and conditions set forth in this
Stipulation[.]”

Stipulation and Settlement Agreement, ¶¶ 13-14.

First Winchester Declaration, ¶ 7.

Cf.

Additionally, counsel for ANF

represented at the fairness hearing that the proposed settlement was
in the parties’ best interest.

See also Stipulation and Settlement

Agreement, ¶ 12 (“. . . ANF believes it to be in the best interests of
the Company and its Stockholders for the Gilbert Action to be settled
and dismissed with prejudice[.]”).

Notably, the Class Representative

also has approved the Stipulation and Settlement Agreement. Id. at ¶¶
10-11.

Consideration of this factor therefore weighs in favor of

approving the Stipulation and Settlement Agreement.
F.

Reaction of Shareholders

In determining whether a settlement is fair, adequate and
reasonable, a court must also consider the reaction of absent
shareholders.

See Vassalle v. Midland Funding LLC, 708 F.3d 747, 754

(6th Cir. 2013).

Notice of the settlement and of the June 28, 2016

fairness hearing was sent to all persons and entities who held shares
of ANF common stock as of the close of business on August 29, 2014.
Affidavit of Mailing, ¶ 2.

As discussed in more detail above, ANF

notified the class of the proposed settlement, fairness hearing, and
timeline for raising objections in several ways, including by:

filing

a Form 8-K with the SEC; posting notice on the “Investors” page of
ANF’s website; and by formal service of information about the
settlement and the action to the Attorney General of the United States
and the Attorneys General of the States designated in the statute,
consistent with CAFA.

First Winchester Declaration, ¶ 18; ANF’s

24

Current Report (Form 8-K), ECF No. 23-14; Kulewicz Declaration, ¶¶ 26.

No objections were filed and no shareholders appeared at the

fairness hearing, which gives rise to an inference that most of the
shareholders had no qualms with the proposed settlement.

Cf. Olden v.

Gardner, 294 F. App’x 210, 217 (6th Cir. 2008) (finding that 79
objections in a class of nearly 11,000 members “tends to support a
finding that the settlement is fair”).

See also In re Delphi Corp.

Sec., Derivative & “ERISA” Litig., 248 F.R.D. 483, 500 (E.D. Mich.
2008) (“If only a small number [of opt outs or objections] are
received, that fact can be viewed as indicative of the adequacy of the
settlement.”) (internal quotations omitted; alteration in original);
Hainey v. Parrott, 617 F.Supp. 2d 668, 675 (S.D. Ohio 2007)
(“Generally, however, a small number of objections, particularly in a
class of this size, indicates that the settlement is fair, reasonable
and adequate.”).

This Court therefore concludes that the lack of any

objections supports a finding that the proposed settlement is fair,
reasonable, and adequate.
G.

Public Interest

The public interest also favors approval of the proposed
settlement.

First, “there is a strong public interest in encouraging

settlement of complex litigation and class action suits because they
are ‘notoriously difficult and unpredictable’ and settlement conserves
judicial resources.”

In re Cardizem CD Antitrust Litig., 218 F.R.D.

508, 530 (E.D. Mich. 2003) (quoting Granada Invs., Inc., 962 F.2d at
1205).

Accord In re Nationwide Fin. Servs. Litig., No. 2:08-cv-00249,

2009 WL 8747486, at *8 (S.D. Ohio Aug. 19, 2009) (“[T]here is

25

certainly a public interest in settlement of disputed claims that
require substantial federal judicial resources to supervise and
resolve.”).

Second, the proposed settlement ends potentially long and

protracted litigation and frees up judicial resources.
Telectronics, 137 F.Supp. 2d at 1025.

See In re

Accordingly, the Court

concludes that the proposed settlement serves the public interest.
In short, and considering all the relevant factors, this Court
concludes that the proposed settlement provides a substantial benefit
to the parties and is fair, reasonable, and adequate.
IV.

Attorneys’ Fees and Costs
The Stipulation and Settlement Agreement provides that Class

Counsel shall submit an application for attorneys’ fees, to be awarded
by the Court, not to exceed $165,000, plus reimbursement of actual,
reasonable, and ordinary expenses not to exceed $2000.
and Settlement Agreement, ¶ 21.

Stipulation

The attorneys’ fees and expenses

shall be paid by ANF (or any applicable insurer).

Id.

Plaintiff

included a request for an award of attorneys’ fees and expenses in
Plaintiff’s Motion for Final Approval and supplemented that request in
Plaintiff’s Supplemental Submission in Further Support of Motion for
Final Approval of Class Action Settlement and Application for an Award
of Attorneys’ Fees and Reimbursement of Expenses, ECF No. 27.
Defendants take no position on Plaintiff’s fee application.

Id.

Plaintiff’s successful prosecution of this action justifies an
award of reasonable attorneys’ fees.

See Ramey v. Cincinnati

Enquirer, Inc., 508 F.2d 1188, 1194 (6th Cir. 1974) (citing Mills v.
Electric Auto-Lite Co., 396 U.S. 375 (1970)); Shlensky, 574 F.2d at

26

149.

Plaintiff proposes that an award based on the lodestar method of

calculation is appropriate, and this Court agrees with that
proposition.

Notably, the proposed settlement does not provide for a

common fund and, as discussed supra, the exact value of the resulting
benefit to ANF and to its shareholders cannot be precisely determined.
The lodestar method will account for the amount of work performed by
counsel and will ensure that counsel is fairly compensated for the
results achieved.

See Rawlings v. Prudential-Bache Props., Inc., 9

F.3d 513, 515-16 (6th Cir. 1993); In re Rite Aid Corp. Sec. Litig.,
396 F.3d 294, 300 (3d Cir. 2005).
In determining an appropriate “lodestar” figure, a court
multiplies the number of hours reasonably expended on the litigation
by a reasonable hourly rate.

Bldg. Serv. Local 47 Cleaning

Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th
Cir. 1995) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
The court “may then, within limits, adjust the ‘lodestar’ to reflect
relevant considerations peculiar to the subject litigation.”

Adcock-

Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing
Reed v. Rhodes, 179 F.3d 453, 471-72 (6th Cir. 1999)).

In assessing

the reasonableness of a fee award, courts
[o]ften, but by no means invariably, . . . address these
factors: “(1) the value of the benefit rendered to the
plaintiff class; (2) the value of the services on an hourly
basis; (3) whether the services were undertaken on a
contingent fee basis; (4) society’s stake in rewarding
attorneys who produce such benefits in order to maintain an
incentive to others; (5) the complexity of the litigation;
and (6) the professional skill and standing of counsel
involved on both sides.”

27

Moulton v. U.S. Steel Corp., 581 F.3d 344, 352 (6th Cir. 2009)
(quoting Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996)).
See also Ramey, 508 F.2d at 1196.
Plaintiff’s counsel submits that the Kessler Topaz firm billed
249.60 hours in connection with the litigation as of June 3, 2016; the
law firm of Friedman Oster & Tejtel PLLC (“Friedman Oster”) billed
68.5 hours in connection with the litigation as of June 3, 2016; and
the law firm of Isaac, Wiles, Burkholder & Teetor, LLC (“Isaac Wiles”)
billed 11.10 hours in connection with the litigation as of March 25,
2016.

First Winchester Declaration, ¶¶ 46-48; Exhibits 1 and 2,

attached to Supplemental Declaration of Robin Winchester, ECF No. 27-1
(“Supplemental Winchester Declaration); First Friedman Declaration, ¶¶
4-6; Exhibits 1 and 2, attached to Supplemental Declaration of Jeremy
Friedman, ECF No. 27-2 (“Supplemental Friedman Declaration”); First
Landes Declaration, ¶¶ 4-6; Exhibits 1 and 2, attached to Supplemental
Declaration of Mark Landes, ECF No. 27-3 (“Supplemental Landes
Declaration”).

Based on the customary or current hourly rates charged

by each firm, Class Counsel represents that the total lodestar value
for the time is $155,951.

First Winchester Declaration, ¶¶ 47, 59

(averring that the lodestar value for Kessler Topaz time billed is
$112,216.25 and that the total lodestar value for all firm time
combined is $155,951); First Friedman Declaration, ¶ 5 (averring that
the lodestar value for Friedman Oster time billed is $39,850); First
Landes Declaration, ¶ 4 (averring that the lodestar value for Isaac
Wiles time billed is $3,885.75).

Class Counsel also submits that

Kessler Topaz incurred a total of $3,259.08 in unreimbursed expenses

28

in connection with filing fees; messenger, courier, and overnight
mailing fees; external reproduction costs; research; and internal
reproduction costs.

First Winchester Declaration, ¶ 57.

Plaintiff supports his fee request with evidence of the hours
expended and hourly rates for each individual who worked on this
matter as well as evidence of the experience of certain such
individuals, as follows:
Attorneys
Name

Title - Firm

Years of
Experience

Hours

Hourly
Rate

Total

Marc A.
Topaz

Partner –
Kessler Topaz

Unknown

3.35

$850

$2,847.50

Robin
Winchester

Partner –
Kessler Topaz

Unknown

36.50

$725

$26,462.50

Eric Zagar

Partner –
Kessler Topaz

Unknown

5.50

$800

$4,400

Seamus
Kaskela

Associate –
Kessler Topaz

Unknown

20

$500

$10,000

Christopher
Windover

Associate –
Kessler Topaz

Unknown

104.25

$425

$44,306.25

David Uris3

Staff Attorney –
Kessler Topaz

Unknown

35.25

$350

$12,337.50

Jeremy
Friedman

Member –
Friedman Oster

9 years

43.50

$600

$26,100

Spencer
Oster

Member –
Friedman Oster

13 years

11.50

$550

$6,325

David Tejtel

Member –
Friedman Oster

9 years

13.50

$550

$7,425

Mark Landes

Partner – Isaac Wiles

31 years

.70

$350

$245

Maribeth
Meluch

Partner – Isaac Wiles

25 years

9.30

$350

$3,255

3

Mr. Uris is no longer with Kessler Topaz.
50(f).

29

First Winchester Declaration, ¶

Partner – Isaac Wiles

10 years

1.10

Total:

Mark
Troutman

$350

284.45

$385
$144,088.75

Non-Attorneys
Name

Title - Firm

Years of
Experience

Hours

Hourly
Rate

Total

Fabiana
Angrisano

Investigation Dep’t –
Kessler Topaz

Unknown

7

$300

$2100

Jamie
Maginnis

Investigation Dep’t –
Kessler Topaz

Unknown

6.50

$300

$1950

Christopher
McGinnis

Paralegal –
Kessler Topaz

Unknown

9

$250

$2250

Doug
Tewksbury

Paralegal –
Kessler Topaz

Unknown

22.25

$250

$5562.50

Total:

44.75

$11,862.50

First Winchester Declaration, ¶¶ 48, 51; Exhibit 5 (firm and attorney
resumes), attached thereto; Supplemental Winchester Declaration, ¶¶ 57; Exhibits 1 and 2 (schedules of time expended in this litigation
with privileged information redacted), attached thereto; First
Friedman Declaration, ¶ 6; Exhibit A (firm and attorney resumes),
attached thereto; Supplemental Friedman Declaration, ¶¶ 5-7; Exhibits
1 and 2 (schedules of time expended in this litigation with privileged
information redacted), attached thereto; First Landes Declaration, ¶¶
3-4; Supplemental Landes Declaration, ¶¶ 5-7; Exhibits 1 and 2,
(schedules of time expended in this litigation with privileged
information redacted), attached thereto.
As noted supra, the lodestar figure is calculated by multiplying
the proven number of hours reasonably expended on the litigation by a

30

reasonable hourly rate.

See Grandview Raceway, 46 F.3d at 1401.

The

Court shall address in turn the number of hours reasonably expended
and the reasonable hourly rate.
A.

Hours Reasonably Expended

[T]he key requirement for an award of attorney fees is that
the documentation offered in support of the hours charged
must be of sufficient detail and probative value to enable
the court to determine with a high degree of certainty that
such hours were actually and reasonably expended in the
prosecution of the litigation. . . . Although counsel need
not record in great detail each minute he or she spent on
an item, the general subject matter should be identified.
Gascho v. Glob. Fitness Holdings, LLC, 822 F.3d 269, 281 (6th Cir.
2016) (quoting Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,
553 (6th Cir. 2008)) (internal quotation marks and citations omitted).
The Court concludes that the number of hours expended on this
litigation is reasonable.

As noted supra, Class Counsel submitted

schedules of the time expended in connection with this litigation.
These records reflect that Friedman Oster counsel began researching
and investigating the claims asserted in this action in June and July
2015 before this action was filed on September 24, 2015.
1, attached to Supplemental Friedman Declaration.

See Exhibit

While this firm

continued to investigate and began drafting the Complaint, Kessler
Topaz counsel and staff initiated their own investigation of ANF’s
Board of Directors in early August 2015 and assisted in fact-checking
and revising the Complaint.
Winchester Declaration.

Id.; Exhibit 1, attached to Supplemental

Counsel with Isaac Wiles provided reasonable

assistance as local counsel in connection with the filing of the
Complaint.

Exhibit 1, attached to Supplemental Landes Declaration.

The records provided to the Court also reflect that counsel from all
31

firms assisted in communicating with defense counsel regarding a
potential settlement and/or preparing settlement documents.

See

Exhibit 1, attached to Supplemental Friedman Declaration; Exhibit 1,
attached to Supplemental Friedman Declaration; Exhibit 1, attached to
Supplemental Landes Declaration.

Counsel also reasonably expended

hours in preparing the preliminary and final request for approval of
settlement as well as communicating with the Court regarding the
fairness hearing.

Id.

Moreover, the complexity of the case and the

results ultimately achieved support the conclusion that the number of
hours expended in this matter was reasonable.

In short, this Court is

satisfied that the number of hours billed by plaintiff’s counsel is
reasonable.
B.

Reasonable Hourly Rate

The Court now turns to the reasonableness of plaintiff’s
counsel’s hourly rates.

“A trial court, in calculating the

‘reasonable hourly rate’ component of the lodestar computation, should
initially assess the ‘prevailing market rate in the relevant
community.’”

Adcock-Ladd, 227 F.3d at 350 (emphasis in original)

(quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).

“The prevailing

market rate is ‘that rate which lawyers of comparable skill and
experience can reasonably expect to command within the venue of the
court of record.’”

Waldo v. Consumers Energy Co., 726 F.3d 802, 821

(6th Cir. 2013) (quoting Adcock-Ladd, 227 F.3d at 350).

See also Van

Horn v. Nationwide Prop. & Cas. Ins. Co., No. 10–3643, 436 F. App’x
496, at *499 (6th Cir. Aug. 26, 2011) (quoting Gonter v. Hunt Valve
Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007)); Geier v. Sundquist, 372

32

F.3d 784, 791 (6th Cir. 2004); Brian A. v. Hattaway, No. 02-5666, 83
F. App’x 692, at *694 (6th Cir. Nov. 21, 2003).

“The appropriate

rate, therefore, is not necessarily the exact value sought by a
particular firm, but is rather the market rate in the venue sufficient
to encourage competent representation.”

Gonter, 510 F.3d at 618

(citing Lamar Adver. Co. v. Charter Twp. of Van Buren, 178 F. App’x
498 (6th Cir. 2006)).

“A court may, however, award a higher hourly

rate for an out-of-town specialist if (1) hiring the out-of-town
specialist was reasonable in the first instance, and (2) if the rates
sought by the out-of-town specialist are reasonable for an attorney of
his or her degree of skill, experience, and reputation.”

Brian A., 83

F. App’x at *694 (citing Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir.
1995)).
The Court shall address each firm’s hourly rates in turn.
1.

Hourly rates for Isaac Wiles

Isaac Wiles counsel’s rates are $350 per hour.
Declaration, ¶ 4.

First Landes

These rates “are in the range of its [the firm’s]

usual and customary hourly rates charged for this kind of work.”
at ¶ 8.

Id.

These rates are consistent with those in the local market and

the Court’s experience.

See, e.g., In re Sulzer Orthopedics, Inc.,

398 F.3d 778 (6th Cir. 2005); Gascho v. Glob. Fitness Holdings, LLC,
No. 2:11-CV-436, 2014 WL 1350509, at *34 (S.D. Ohio July 16, 2014)
(recommending an attorneys’ fee award in class action based on rates
ranging from $180 per hour to $450 per hour), adopted by, 2014 WL
3543819, aff’d, 822 F.3d 269 (6th Cir. 2016); Johnson v. Midwest
Logistics Sys., Ltd., No. 2:11-cv-1061, 2013 WL 2295880 (S.D. Ohio May

33

24, 2013); Lowther v. AK Steel Corp., No. 1:11-cv-877, 2012 WL 6676131
(S.D. Ohio Dec. 21, 2012).

The Court therefore finds that the hourly

rate of $350 for work performed by Isaac Wiles counsel is reasonable.
2.

Hourly rates for Friedman Oster

Friedman Oster counsel’s rates range from $550 to $600 per hour,
which reflect the firm’s “customary hourly rates.”
Declaration, ¶¶ 6, 10.

First Friedman

These rates exceed the average hourly rates

charged in Columbus, Ohio.

See supra.

However, this Court concludes

that it was reasonable for plaintiff to hire counsel from outside this
forum.

ANF is a corporation with an international presence, plaintiff

is a shareholder from Florida, and the issues in this case are complex
and not limited to those peculiar to this District.

It is also

significant that, in additional to their local counsel, both plaintiff
and defendants are represented in this action by national counsel with
substantial experience in securities litigation.

Given Class

counsel’s skill, experience, and reputation, and considering the
specialized issues presented in this case, it was reasonable for
Plaintiff to hire out of district specialists.

After reviewing the

record, the Court concludes that the hourly rates requested by
Friedman Oster counsel are reasonable.
As noted supra, the requested billing rates reflect Friedman
Oster’s customary hourly rates. Moreover, the firm undertook this
litigation on an entirely contingent basis.
Declaration, ¶¶ 3, 10.

First Friedman

The rates reflect Friedman Oster’s highly

specialized skill and experience, and reputation in shareholder
litigation.

Id. at ¶ 11. Friedman Oster is “a New York based

34

litigation boutique that specializes in shareholder rights and
corporate governance litigation.”
Friedman Declaration.

Exhibit 1, p. 1, attached to First

Friedman Oster actively litigates shareholder

derivative and class action litigation in the Delaware Court of
Chancery, which is nationally recognized for its expertise in
corporate and shareholder litigation.
Declaration, ¶¶ 8, 14.

Id. at 1-2; First Friedman

In other litigation, the firm has obtained

significant results for corporate stockholders.

Exhibit 1, p. 1,

attached to First Friedman Declaration (detailing favorable litigation
results).

Attorney Jeremy Friedman, Spencer Oster, and David Tejtel,

are experienced in shareholder class actions, corporate governance,
and transactional litigation, with a combined experience of over
thirty years.

Id. at 3-4.

The hourly rates charged by Friedman Oster are consistent with
the rates for similar services by lawyers of reasonably comparable
skill, experience, and national reputation.

Notably, Plaintiff

presents evidence that suggests that Friedman Oster’s hourly rates are
commensurate with those of counsel for certain defendants who, like
Plaintiff’s counsel, have extensive experience and national
reputations in the areas of shareholder derivative and class action
litigation.

See, e.g., First Winchester Declaration, ¶ 54 (citing

findings by the National Law Journal (“NLJ”), “Billing Rates Across
the Country,” Jan. 13, 2014, available at
http://www.nationallawjournal.com/id=1202636785489/Billing-RatesAcross-the-Country?slreturn=20160704124207); Exhibit 6,, PAGEID#:905,
attached thereto (excerpts from “Billing Rates Across the Country,”

35

reporting partner billing rates between $495 and $875 for the law firm
of Alston & Bird LLP, counsel for Wells Fargo), PAGEID#:906-907
(reporting partner billing rates between $490 and $780 for the law
firm of Patton Boggs, and partner billing rates between $350 and $950
for the law firm Squire Sanders, which merged into the law firm Squire
Patton Boggs, LLP, counsel for Individual Defendants).
In arguing that Plaintiff’s counsel’s hourly rates are
reasonable, Plaintiff asks this Court to consider that it has
previously approved higher hourly rates charged by counsel with
similar specialized skill.

First Winchester Declaration, ¶¶ 53, 55

(citing In re Porsche Cars North America, Inc. Plastic Coolant Tubes
Products Liability, S.D. Ohio Case No. 2:11-md-2233, which approved
fee award based on hourly rates of up to $850 for partners); Exhibits
7 and 8, attached thereto (copies of motion for attorneys’ fees and
order granting such request filed in In re Porsche Cars North America,
Inc. Plastic Coolant Tubes Products Liability, S.D. Ohio Case No.
2:11-md-2233); First Friedman Declaration, ¶ 13.

While In re Porsche

Cars North America, Inc. Plastic Coolant Tubes Products Liability was
a multi-district litigation involving products liability and this
action is not, the Court nevertheless notes that Friedman Oster’s
hourly rates are lower than those previously approved by this Court in
other litigation.
Finally, Plaintiff presents evidence of the reasonableness of
Friedman Oster’s hourly rate in light of those approved by the
Delaware Court of Chancery, which “has a national recognition for its
expertise in corporate and shareholder litigation.”

36

First Friedman

Declaration, ¶ 14.

The Delaware Court of Chancery has traditionally

“used hours worked to calculate an effective hourly rate that can be
examined to guard against windfall compensation when awarding large
fees.”

In re Sauer-Danfoss Inc. Shareholders Litig., 65 A.3d 1116,

1139 (Del. Ch. 2011).

This “implied hourly rate” for Friedman Oster

is $581.75 (dividing the Friedman Oster lodestar of $39,850 by 68.50
Friedman Oster hours billed), which is within the range approved by
the Delaware Court of Chancery.

First Friedman Declaration, ¶¶ 6, 14.

For all these reasons, the Court concludes that the hourly rates
ranging from $550 per hour to $600 per hour for work performed by
Friedman Oster’s counsel is reasonable.
3.

Hourly rates for Kessler Topaz

Kessler Topaz counsel’s billing rates range from $350 per hour to
$850 per hour, reflecting the customary billing rates for partners,
associates, and a staff attorney.
52.

First Winchester Declaration, ¶ 48,

As noted supra, these rates exceed the average hourly rates

charged in Columbus, Ohio but, for the reasons previously discussed,
it was reasonable for Plaintiff to hire counsel from outside this
forum.

For the reasons that follow, the Court concludes that the

hourly rates for counsel at Kessler Topaz are reasonable, but the
hourly rates for the firm’s non-attorneys are not reasonable.
Kessler Topaz is a large and successful shareholder litigation
firm with offices in Pennsylvania and California, recognized by the
National Law Journal as one of the top securities class action law
firms in the United States.

First Winchester Declaration, ¶¶ 51, 53;

Exhibit 5, p. 1, attached thereto (copy of firm resume).

37

Kessler

Topaz has served as lead or co-lead counsel in many large and complex
class actions involving high-profile clients.

Exhibit 5, pp. 1-15,

attached to First Winchester Declaration (highlighting noteworthy
litigation).

Kessler Topaz undertook this litigation on an entirely

contingent basis.

First Friedman Declaration, ¶ 38.

The hourly rates charged by Kessler Topaz are consistent with the
rates for similar services by lawyers of reasonably comparable skill,
experience, and national reputation.

As discussed above, the hourly

rates reflected in the NLJ survey suggest that Kessler Topaz counsel’s
hourly rates are commensurate with those of counsel for some of the
defendants, who also likewise possess extensive expertise with
national reputations in the areas of shareholder derivative and class
action litigation.

First Winchester Declaration, ¶ 54; Exhibit 6,

attached thereto #:905, attached thereto (reporting partner billing
rates between $495 and $875 for the law firm of Alston & Bird LLP,
counsel for Wells Fargo), PAGEID#:906-907 (reporting partner billing
rates between $490 and $780 and associate billing rates between $325
and $475 for the law firm of Patton Boggs, and partner billing rates
between $350 and $950 as well as associate billing rates between $250
and $530 for the law firm Squire Sanders).
Although at the high end, the Kessler Topaz partners’ hourly
rates are within the range of or are comparable to those rates
previously approved by this Court.

First Winchester Declaration, ¶¶

53, 55 (citing In re Porsche Cars North America, Inc. Plastic Coolant
Tubes Products Liability, S.D. Ohio Case No. 2:11-md-2233, which

38

approved fee award based on hourly rates of up to $850 for partners
and $550 for associates for out-of-district counsel).
Plaintiff also points out that Kessler Topaz’s “implied hourly
rate” of $449.58 (dividing Kessler Topaz lodestar of $112,216.25 by
249.60 Kessler Topaz hours billed) is consistent with rates approved
by the Delaware Court of Chancery.

First Winchester Declaration, ¶¶

48, 56 (citing Seinfeld v. Coker, 847 A.2d 330, 337-38 (Del. Ch. 2000)
(approving rate of $1300 per hour); In re KSW, Inc. S’holder Litig.,
No. 7875-VCG, copy of transcript attached thereto as Exhibit 9,
PAGEID#:1153 (noting that rate of $762 per hour “is a healthy rate but
not unusual or excessive particularly in light of the fact that this
was a purely contingent fee case”); Pontiac Gen. Emps. Ret. Sys. v.
Ballantine, C.A. No. 9789-VCL, copy of transcript attached thereto as
Exhibit 11).
The hourly rates for Kessler Topaz partners, associates, and
staff attorneys - which range from $350 to $850 - is therefore
reasonable based on the present record.
Plaintiff also seeks fees for non-attorneys employed by Kessler
Topaz.

Plaintiff specifically seeks $250 per hour for work performed

by two paralegals.

First Winchester Declaration, ¶ 48.

Plaintiff

submits that the paralegals belong to Kessler Topaz’s Acquisitions and
Shareholder Derivative Litigation Group.4

Id. at ¶ 50(g), (h).

The

paralegals’ work involved proofreading and cite-checking as well as
monitoring the docket and noting upcoming deadlines.

Id.

The Court,

however, finds that this requested rate is double the hourly rates
4

One of the paralegals, Doug Tewksbury, is no longer employed by Kessler
Topaz. Id. at ¶ 50(g).

39

recently approved for paralegals by this Court.

See Kehoe Component

Sales Inc. v. Best Lighting Prods., Inc., No. 2:10-cv-00789, 2014 WL
5034643, at *8 (S.D. Ohio Oct. 8, 2014) ($125 per hour for
paralegals); Castro v. Los Camperos, Inc., No. 2:13-cv-1186, 2014 WL
4626292, at *4 (S.D. Ohio Sept. 15, 2014) (“Considering that only 10.3
percent of paralegals in the greater Columbus area bill at a rate over
$130 per hour, see The Economics of Law Practice in Ohio in 2013, p.
43, . . . .”); Javery v. Lucent Techs. Inc. Long-Term Disability Plan
for Mgmt. or LBA Emps., No. 2:09-cv-00008, 2014 WL 2779427, at *8
(S.D. Ohio June 19, 2014) ($125 per hour for paralegals); Wilson v. D
& N Masonry, Inc., No. 1:12-cv-922, 2014 WL 1789136, at *2 (S.D. Ohio
May 5, 2014) ($125 per hour for paralegals).

Indeed, this Court has

recently concluded in a previous action involving ANF that a rate for
paralegals should be limited to $125 per hour.

See City of Plantation

Police Officers’ Employees’ Ret. Sys. v. Jeffries, No. 2:14-CV-1380,
2014 WL 7404000, at *15 (S.D. Ohio Dec. 30, 2014).
persuaded that this conclusion was incorrect.

The Court is not

The Court therefore

limits Kessler Topaz’s paralegals’ hourly rate to $125.
Plaintiff also seeks fees for work performed by two individuals
in Kessler Topaz’s “Investigation Department.”
Declaration, ¶ 48.

First Winchester

These individuals’ rates are $300 per hour for

“identifying addresses for the Individual Defendants in order to
effectuate service of process of the complaint.”

Id. at 50(i)(j).

There is no evidence of these individuals’ experience.

See id.

While

the Court recognizes the need to effect proper service of process, it
is not persuaded that the present record justifies an hourly rate of

40

$300, which is comparable to the $350 hourly rate charged by Kessler
Topaz’s staff attorney.

Id. at ¶ 48.

The Court will therefore limit

the hourly rate for these individuals in Kessler Topaz’s
“Investigation Department” to the amount permissible for paralegals,
i.e., $125 per hour.
Considering the foregoing, the Court calculates Plaintiff’s
counsel’s lodestar value at $149,682.50:
Name

Title - Firm

Years of
Experience

Hours

Hourly
Rate

Total

Marc A.
Topaz

Partner –
Kessler Topaz

Unknown

3.35

$850

$2,847.50

Robin
Winchester

Partner –
Kessler Topaz

Unknown

36.50

$725

$26,462.50

Eric Zagar

Partner –
Kessler Topaz

Unknown

5.50

$800

$4,400

Seamus
Kaskela

Associate –
Kessler Topaz

Unknown

20

$500

$10,000

Christopher
Windover

Associate –
Kessler Topaz

Unknown

104.25

$425

$44,306.25

David Uris

Staff Attorney –
Kessler Topaz

Unknown

35.25

$350

$12,337.50

Jeremy
Friedman

Member –
Friedman Oster

9 years

43.50

$600

$26,100

Spencer
Oster

Member –
Friedman Oster

13 years

11.50

$550

$6,325

David Tejtel

Member –
Friedman Oster

9 years

13.50

$550

$7,425

Mark Landes

Partner – Isaac Wiles

31 years

.70

$350

$245

Maribeth
Meluch

Partner – Isaac Wiles

25 years

9.30

$350

$3,255

Mark
Troutman

Partner – Isaac Wiles

10 years

1.10

$350

$385

Fabiana
Angrisano

Investigation Dep’t –
Kessler Topaz

Unknown

7

$125

$875

41

Jamie
Maginnis

Investigation Dep’t –
Kessler Topaz

Unknown

6.50

$125

$812.50

Christopher
McGinnis

Paralegal –
Kessler Topaz

Unknown

9

$125

$1125

Doug
Tewksbury

Paralegal –
Kessler Topaz

Unknown

22.25

$125

$2781.25

Total:

329.20

$149,682.50

As discussed supra, the Court may, “within limits, adjust the
‘lodestar’ to reflect relevant considerations peculiar to the subject
litigation.”
471–72).

Adcock-Ladd, 227 F.3d at 349 (quoting Reed, 179 F.3d at

In adjusting the lodestar to arrive at a reasonable fee

award, a court may consider the following factors:
“(1) the time and labor required by a given case; (2) the
novelty and difficulty of the questions presented; (3) the
skill needed to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and
the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the ‘undesirability’ of the
case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar
cases.”
Id. at 349 n.8 (quoting Reed, 179 F.3d at 471–72 n. 3).

Of these

factors, the “results obtained” is the most important factor in
determining the reasonableness of a fee award.

Kentucky Rest.

Concepts Inc. v. City of Louisville, 117 F. App'x 415, 420 (6th Cir.
2004) (citing Hensley, 461 U.S. at 434-36).

See also Adcock-Ladd, 227

F.3d at 349 (“A highly important Johnson factor is the result
achieved.”) (emphasis in original).
As previously discussed, the proposed settlement provides a
substantial benefit to ANF and its shareholders.

More briefly, the

proposed settlement resulted in the Amendments to the Credit

42

Agreements, which removed threats posed by the Dead Hand Proxy Put and
Poison Put provisions.

The proposed settlement also effectuated

corporate governance reform aimed at preventing the ANF Board from
improperly agreeing to similar debt acceleration provisions in future
agreements.

The proposed settlement specifically addresses the

alleged misconduct in the Complaint and provides immediate relief
without the expense associated with years of litigation.
As noted supra, stockholder class action litigation is inherently
complex and the prosecution of such actions typically requires
specialized skill.

Plaintiff’s counsel also undertook the litigation

on a contingent fee basis and devoted substantial time and energy to
the action despite the risk associated with such fee arrangements.
Indeed, the risk presented in this litigation was significant:
Plaintiff’s counsel devoted nearly 300 hours in connection with the
litigation without any guarantee of compensation.

There is a

substantial public interest in compensating counsel at a rate that
takes into account not only the work performed but also the risk of
undertaking representation on a contingent basis.

It is also

significant that Plaintiff’s counsel has not sought fees for work
performed after June 3, 2016, including time attending the fairness
hearing.

Moreover, it is worth noting that, although potentially

thousands of stockholders were informed of the potential for an award
of attorneys’ fees and costs, and of the amount of fees and costs
sought, Notice, ECF No. 18-3; Affidavit of Mailing, ¶ 2, there were no
objections filed.

43

Plaintiff seeks $165,000 in attorneys’ fees, which he represents
is based upon multiplier of 1.06.

Plaintiff’s Motion for Final

Approval, PAGEID#:742 (citing First Winchester Declaration, ¶¶ 59-60).5
After reductions in the lodestar value as calculated supra, i.e.,
149,682.50, a $165,000 award would yield a multiplier of 1.10.

This

multiplier falls within the range of those previously approved by this
Court, see Jeffries, No. 2:14-CV-1380, 2014 WL 7404000, at *19, and
below the range of those approved in other corporate governance cases
and shareholder litigation.

See, e.g., Cohn v. Nelson, 375 F. Supp.

2d 844, 862 (E.D. Mo. 2005) (“In shareholder litigation, courts
typically apply a multiplier of 3 to 5 to compensate counsel for the
risk of contingent representation.”) (citing Vizcaino v. Microsoft
Corp., 290 F.3d 1043, 1052-54 (9th Cir. 2002) (listing 23 settlements
and multipliers for each, in which the average multiplier is 3.28)).
Considering the benefits of the proposed settlement, the risk
undertaken by Plaintiff’s counsel, the skill of counsel for both
sides, society’s stake in rewarding attorneys for the benefits
secured, and the complexity and duration of the litigation, all
discussed supra, the Court finds that a lodestar multiplier of 1.10 is
appropriate in this case.

Accordingly, the Court concludes that

Plaintiff is entitled to an award of reasonable attorneys’ fees in the

5

Plaintiff represents that he subtracted expenses in arriving at this
multiplier, see id., but it appears from the Court’s calculation that
Plaintiff did not, in fact, subtract expenses when reaching a multiplier of
1.06.

44

amount of $165,000.

Additionally, the Court finds that Plaintiff is

entitled to expenses in the amount of $2,000.6
WHEREUPON, based on the foregoing, the Court concludes that
Plaintiff and the Class have met their burden of showing that the
prerequisites for the certification of a class action pursuant to Rule
23(a) and Rule 23(b)(1)(A) and (b)(2) have been satisfied in this
case, that the Stipulation and Agreement of Settlement is fair,
reasonable, and adequate, and that Class Counsel’s requested award of
fees and expenses is fair and reasonable.

Accordingly, it is hereby

RECOMMENDED that
(a) because the proposed settlement of the action on the
terms and conditions set forth in the Stipulation and
Settlement Agreement is fair, reasonable, adequate, and in
the best interest of the Class, the Settlement Agreement be
finally approved by the Court;
(b) the Class be finally certified for settlement purposes;
(c) the Action be dismissed with prejudice pursuant to the
terms of the Stipulation and Settlement Agreement;
(d) the Class, Class Plaintiff Representative, and
defendants be bound by the release set forth in the
Stipulation and Settlement Agreement; and
(e) Class Counsel be awarded reasonable attorneys’ fees in
the amount of $165,000 and reimbursement of expenses in the
amount of $2,000.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part

6

Plaintiff submitted evidence of expenses totaling $3,259.08, see First
Winchester Declaration, ¶¶ 57-58, but as noted supra, the proposed settlement
limits Plaintiff’s recovery of expenses to $2,000. Stipulation and
Settlement Agreement, ¶ 21.

45

thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

August 5, 2016

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

46