JOHN GLEESON, District Judge.
This putative class action alleges a conspiracy to fix prices in the international commercial freight forwarding industry.
This is the second installment of proposed settlements ("Panalpina 2").
Plaintiffs' counsel ("Class Counsel") also seek approval of their proposed plan of allocation, as well as an interim fee award of 25% of the total available settlement fund and reimbursement of expenses. I held a final fairness hearing on November 2, 2015, at which there was oral argument in support of the proposed settlement, allocation plan, and the requested attorneys' fees. No one objected at the hearing and there have not been any written objections filed.
For the reasons discussed below, I approve the 11 settlement agreements and allocation plan, and I grant the request for attorneys' fees.
I assume familiarity with the facts of the case as set forth in Panalpina 1. As noted above, I have granted final approval to 10 settlements and have awarded $16,853,536.74 in interim fee awards.
SDV has agreed to pay $350,000.00 into the settlement fund, and has agreed to provide substantial cooperation. SDV Settlement §§ II.B.1.a, II.B.2.
Panalpina has agreed to pay $35,000,000.00 and 100% of its future proceeds from the Air Cargo MDL. Panalpina Settlement § II.A.1.
Geodis agreed to pay $3,000,000.00, as well as to cooperate. Geodis Settlement § II.A.
DSV agreed to pay $1,500,000.00 to the settlement class, as well as 100% of any future proceeds from the Air Cargo MDL. DSV Settlement § II.A.1.
Jet Speed agreed to pay $750,000.00 and 100% of any future proceeds from the Air Cargo MDL into the settlement fund. Jet Speed Settlement § II.A.1.
Toll agreed to pay $900,000.00 and 100% of any future proceeds from the Air Cargo MDL into the settlement fund. Toll Settlement § II.A.1.
Agility agreed to pay $16,000,000.00 and 100% of its proceeds from the Air Cargo MDL into the settlement fund. Agility Settlement § II.A.2.
UPS agreed to pay 100% of its proceeds from the Air Cargo MDL received from June 18, 2014 forward, in an amount not to exceed $25,000,000.00. UPS Settlement § II.A.1.
Dachser agreed to pay $2,500,000.00 and assign 100% of its rights to proceeds from the Air Cargo MDL into the settlement fund. Dachser Settlement § II.A.1.
The Japanese Defendants agreed to settle all claims on a collective basis by paying $100,000,000.00 into the settlement fund.
DHL has agreed to settle the severed claims affecting the Japanese-only routes as defined in the settlement agreement by paying $5,000,000.00 into the settlement fund. DHL Japanese Settlement § II.A.1.
On October 7, 2013, I entered an order preliminarily approving the SDV settlement agreement and certifying the settlement class. Order, ECF No. 894. On August 22, 2014, I entered an order preliminarily approving the Panalpina, Geodis, DSV, and Jet Speed settlement agreements and certifying the settlement classes. Order, ECF No. 1102. Also on August 22, 2014, I entered an order preliminarily approving the Toll settlement agreement and certifying the settlement class. Order, ECF No. 1103.
On December 18, 2014, I entered an order preliminarily approving the Agility and UPS settlement agreements and certifying the settlement classes. Order, ECF No. 1124. On February 20, 2015, I entered an order preliminarily approving the Dachser settlement agreement and certifying the settlement class. Order, ECF No. 1147. On April 27, 2015, I entered an order preliminarily approving the settlement agreements as to the Japanese Defendants and as to DHL for the Japanese-only claims, as well as certifying the settlement class. Order, ECF No. 1189.
On May 21, 2015, plaintiffs moved for approval of their class notice program. Mot. to Approve Class Notice Program, ECF No. 1201. On May 29, 2015, I entered an order approving the program.
The notice papers provided a deadline of September 18, 2015 for class members to opt out of or object to any settlement. Redell Decl. ¶¶ 9-10. Only six class members have opted out, and no class members have objected to final approval of any of the 11 settlement agreements. Pls.' Mem. in Supp. Mot. Final Approval at 18-19; Redell Decl. ¶¶ 9-10.
The Plan of Allocation is the same as that for the first round of settlements, which I previously approved. See Pls.' Mem. in Supp. Mot. Final Approval at 25 & Ex. 14; Panalpina 1, 2013 WL 4525323, at *13. As I described in Panalpina 1: "10% of the net settlement funds will be allocated pro rata based on the total worldwide freight forwarding charges paid for shipments to, from, or within the United States during the [relevant time period]. Second, 90% of the net settlement funds will be allocated pro rata based on the surcharges paid on the shipping routes of all defendants that conspired on that particular surcharge for which a particular Class Member paid surcharges on freight forwarding services during the same period." Panalpina 1, 2013 WL 4525323, at *13 (internal quotation marks and citations omitted); accord Pls.' Mem. in Supp. Mot. Final Approval at 25 & Ex. 14.
Counsel for plaintiffs seek a total interim fee award of $42,246,681.08 payable in the following installments: (1) $40,684,181.08, representing 25% of the settlement proceeds currently paid into the settlement fund, payable now; (2) $250,000.00, representing 25% of the settlement proceeds scheduled to be paid by Geodis upon final approval of its settlement agreement, payable at the time of final approval of that agreement; (3) $1,250,000.00, representing 25% of the settlement proceeds scheduled to be paid by Agility on the later of 15 days after final approval of that agreement or on January 4, 2016, payable on the same date; and (4) $62,500.00, representing 25% of the settlement proceeds scheduled to be paid by Jet Speed on May 8, 2016, payable on the same date. Pls.' Mem. in Supp. Mot. Final Approval at 24. In addition, Class Counsel seek reimbursement of $4,046,323.05 for interim litigation expenses. Id.
Pursuant to Federal Rule of Civil Procedure 23(e), any settlement of a class action requires court approval. A court may grant approval of a proposed settlement of a class action if it is "fair, adequate, and reasonable, and not a product of collusion." Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). In so doing, the court must "eschew any rubber stamp approval" yet simultaneously "stop short of the detailed and thorough investigation that it would take if it were actually trying the case." Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000). Judicial discretion is informed by a general policy favoring settlement. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982); see also Denney v. Jenkins & Gilchrist, 230 F.R.D. 317, 328 (S.D.N.Y. 2005) ("There is a strong judicial policy in favor of settlements, particularly in the class action context. The compromise of complex litigation is encouraged by the courts and favored by public policy." (citations and internal quotation marks omitted), aff'd in part and vacated in part, 443 F.3d 253 (2d Cir. 2006)).
To evaluate whether a class settlement is fair, I examine (1) the negotiations that led up to it, and (2) the substantive terms of the settlement. See In re Holocaust Victims Assets Litig., 105 F.Supp.2d 139, 145 (E.D.N.Y. 2000). In evaluating procedural fairness, "[t]he [negotiation] process must be examined `in light of the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.'" Id. at 145-46 (quoting Malchman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983)). Factors relevant to the substantive fairness of a proposed settlement include: "(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 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 (internal citations omitted).
I find that the 11 settlement agreements are procedurally fair. Plaintiffs represent that the settlements were each "entered into in good faith, after extensive arms' length negotiations between experienced and informed counsel on both sides." Pls.' Mem. in Supp. Mot. Final Approval at 14. Nine of the settlement agreements—the Panalpina, Geodis, Jet Speed, Toll, Agility, UPS, Dachser, DHL and Japanese Settlement Agreements—were aided by a "nationally recognized mediator." Id. at 15. Further, plaintiffs represent that Class Counsel "zealously represented the interests of the Class during all settlement negotiations," that extensive discovery had occurred, and that Class Counsel "were well informed as to the facts of the case and the strengths of the claims asserted" in negotiating the settlement terms. Id. There is nothing in the record to indicate otherwise. Rather, the record supports that each settlement agreement was the product of numerous meetings, resolutions of "disputed terms," and the assessment of relevant data, including revenue data and other information about settling defendants' operations. See Joint Decl. of Co-Lead Counsel, ECF No. 1282, ¶¶ 278-312.
I have no reason to believe that the parties entered into the settlement agreements through collusive behavior or that any preferential treatment was improperly conferred upon the class representative or any portion of the class. See, e.g., In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997). Accordingly, I conclude that the settlement agreements were reached by good-faith negotiations that were "fair, adequate, and reasonable, and not a product of collusion." Joel A., 218 F.3d at 138.
I also find that the settlement agreements are substantively fair. My findings here borrow from those set forth in my previous opinion approving settlements in this case.
First, the complexity of federal antitrust cases is well known. See, e.g., Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 263 (2d Cir. 2001) (noting the "factual complexities of antitrust cases"); Weseley v. Spear, Leeds & Kellogg, 711 F.Supp. 713, 719 (E.D.N.Y. 1989) (Nickerson, J.) (antitrust class actions "are notoriously complex, protracted, and bitterly fought"). As I noted in Panalpina 1, "the potential for this complex litigation to consume considerable time and resources has been great. Complex factual and legal issues abound." Panalpina 1, 2013 WL 4525323, at *7. Continued proceedings would likely involve some or all of the following necessities to present proof and litigate a case: voluminous discovery, dueling experts, trial preparation, damages calculations, and appeals of any adverse jury verdicts. Each of these stages involve risk. As I wrote in Panalpina 1, "[i]t is undisputed that developing cases against any of the settling defendants would have required significant time and expense. In addition, as a result of many of these defendants' bargained-for cooperation, these settlement agreements may facilitate a more expeditious outcome of the remaining claims, and may advance the final resolution of this litigation." Id. The same conclusions remain undisputed here.
Due process requires that class members be given notice of a proposed settlement and opportunity to be heard. Notice papers were mailed to over 1.67 million potential class members, Kinsella Decl. ¶ 11, and plaintiffs estimate the class size to number in the hundreds of thousands. Pls.' Mem. in Supp. Mot. Final Approval at 18. Only six members of the class have opted out, and there was not a single objection. Id. at 18-19. That the overwhelming—almost unanimous—majority of the class members have elected to remain in the settlement class supports a finding that the settlement is fair, reasonable, and adequate. See, e.g., In re Sumitomo Copper Litig., 189 F.R.D. 274, 281 (S.D.N.Y. 1999); In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 527 (E.D. Mich. 2003).
I also find that the settlement amounts presented here are within the range of reasonableness. In the aggregate, the settlement proceeds from the 11 agreements presently establish a guaranteed settlement fund worth approximately $197,623,497.87. In addition, the defendants have agreed to cooperate to help the plaintiffs pursue their claims. "[T]hough the agreement[s] to cooperate with Plaintiffs ha[ve] not been factored in to the overall value of these settlements, [they] add[] significant value." See In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-MD-1775 (JG)(VVP), 2011 WL 2909162, at *4 (E.D.N.Y. July 15, 2011). Finally, the settlement proceeds from the agreements will continue to grow as settling defendants receive payments from the Air Cargo MDL.
In sum, I conclude that the 11 proposed settlement agreements are both procedurally and substantively fair, and I therefore approve them.
"As a general rule, the adequacy of an allocation plan turns on . . . whether the proposed apportionment is fair and reasonable" under the particular circumstances of the case. In re Painewebber Ltd. P'ships Litig., 171 F.R.D. 104, 133 (S.D.N.Y. 1997), aff'd, 117 F.3d 721 (2d Cir. 1997). "An allocation formula need only have a reasonable, rational basis, particularly if recommended by experienced and competent class counsel." In re American Bank Note Holographics, Inc., 127 F.Supp.2d 418, 429-30 (S.D.N.Y. 2001) (internal quotation marks omitted). Whether the allocation plan is equitable is "squarely within the discretion of the district court." In re PaineWebber, 171 F.R.D. at 132.
I find that the plan is both fair and reasonable, and thus I approve it. The plan is the same as the one I approved in Panalpina 1, and I see no reason to reach a different result here. Moreover, no class member has objected to the plan, strongly suggesting it is fair, reasonable and adequate to the class.
I may award attorneys' fees using either a percentage of the fund or the lodestar method.
Class Counsel seek an interim fee award of $42,246,681.08, which represents 25% of the total available settlement fund ($168,986,724.33, payable in four installments).
I find the requested attorneys' fees are fair and reasonable, and satisfy the Goldberger factors. This litigation is almost eight years old, and Class Counsel represent that they have "spent a total of 153,782.18 hours prosecuting the litigation." Pls.' Mem. in Supp. Mot. Interim Attorneys' Fees at 12. The amount of time and energy spent on the litigation is directly related to the factual and legal complexity of this action. "[A]ntitrust cases, by their nature, are highly complex," and this case is no different. Wal-Mart, 396 F.3d at 122; see also Weseley, 711 F. Supp. at 719 (antitrust class actions "are notoriously complex, protracted, and bitterly fought"). As I have already discussed, this litigation was obviously risky and complex.
As I stated in Panalpina 1, 2013 WL 4525323, at *16: "Class Counsel are highly experienced practitioners in complex litigation generally and antitrust litigation specifically. The settlement agreements [are] the result of hard fought arms'-length negotiation with settlement defendants' respective counsel." The settlement amounts proposed here attest to Class Counsel's abilities. In sum, I find the proposed attorneys' fees reasonable and thus grant the request.
For the reasons stated above, the SDV, Geodis, Jet Speed, DSV, Toll and Japanese Defendants' settlement agreements are approved, and all claims against those defendants by those members of the settlement class who have not timely exercised their right to be excluded from the settlement agreements are dismissed with prejudice. My grant of final approval to the Agility, UPS, and DHL Japanese settlement agreements will be held in abeyance until January 7, 2016.
So ordered.