LABATON SUCHAROW LLP JOEL H. BERNSTEIN jbernstein

Transcription

Case 2:07-cv-05295-MRP -MAN Document 990 Filed 10/11/10 Page 1 of 15 Page ID
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LABATON SUCHAROW LLP
JOEL H. BERNSTEIN
[email protected]
JONATHAN M. PLASSE
[email protected]
IRA A. SCHOCHET
[email protected]
DAVID J. GOLDSMITH
[email protected]
MICHAEL H. ROGERS
[email protected]
JOSHUA L. CROWELL
[email protected]
140 Broadway
New York, New York 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
Lead Counsel for Lead
Plaintiffs New York Funds
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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IN RE COUNTRYWIDE FINANCIAL
CORPORATION SECURITIES
LITIGATION
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This Document Applies to: All Actions
Lead Case No.
CV 07-05295 MRP (MANx)
DECLARATION OF
MICHAEL H. DIAMOND IN
SUPPORT OF LEAD COUNSEL’S
REQUEST FOR ATTORNEYS’
FEES AND EXPENSES
Date: November 15, 2010
Time: 1:00 a.m.
Courtroom: 12
Judge: Hon. Mariana R. Pfaelzer
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DIAMOND DECL. IN SUPP. OF ATTORNEY’S FEES & EXPENSES
LEAD CASE NO. CV 07-05295 MRP (MANX)
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I, MICHAEL H. DIAMOND, hereby declare as follows:
1.
I am an attorney admitted to the practice of law in the State of
California and before this Court. I submit this declaration in support of the
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application by Labaton Sucharow LLP (“Lead Counsel”), Lead Plaintiffs’ Counsel
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in the above entitled matter, for an award of attorneys’ fees. I have personal
knowledge of the matters stated herein and, if called upon, I could and would
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competently testify thereto.
2.
I have been retained by Lead Counsel to present my opinion as to the
reasonableness of the fees sought in its application. For the reasons set forth in the
discussion below, it is my opinion that the fees and expenses sought clearly meet
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the standard for reasonable fees and expenses.
Qualifications
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3.
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A copy of my resume is attached as Exhibit A. I was admitted to the
New York Bar in 1971, the California Bar in 1984 and practiced law continuously
until my retirement in November 2007. During that time, I specialized in securities
litigation. I defended multiple corporations and their officers and directors in both
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major shareholder class action cases and derivative actions involving issues of
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disclosure and breach of fiduciary duty. Over the course of my career, I have
litigated against many of the leading class action attorneys nationwide and, as a
result, I negotiated multiple settlements, which included negotiating reasonable
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attorneys’ fees.
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4.
From 1984 to 1994, I was the Managing Partner and Head of
Litigation for the Los Angeles office of the law firm of Skadden, Arps, Slate,
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Meagher and Flom, LLP (“Skadden”). From 1992 to 1994, when I left Skadden, I
was in charge of the entire firm’s litigation related disciplines, an area that
included more than 500 lawyers. From 2000 to 2007, I served as the head of the
Los Angeles litigation group for the law firm of Milbank, Tweed, Hadley &
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McCloy, LLP (“Milbank”). As a result of these management responsibilities, in
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addition to my own practice history, I have extensive experience in attorney
staffing and billing practices in large complex cases.
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I also served from 1994 to 1997 as Executive Vice President and
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General Counsel for New World Communications, Inc., a publicly traded
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company, where I worked closely with outside counsel in major business cases and
transactions. This experience adds to my ability to evaluate counsel’s conduct
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from a client’s point of view.
6.
My experience as a securities class action litigator at Skadden and
Milbank, as a manager of litigators at both of those firms and as General Counsel
at New World Communications qualifies me as an expert in evaluating attorney
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fees and the conduct of lawyers in large complex cases. Therefore, I feel qualified
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to opine on the reasonableness of Lead Counsel’s attorneys’ fees and expenses in
its representation of Lead Plaintiffs in this matter. I am being compensated for my
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services in this matter as a rate of $750 per hour.
Materials Relied Upon
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7.
In the course of my research as part of my engagement, I have
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reviewed the following documents.
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A.
The May 6, 2004 Implementation Contract and
Amendments between the Comptroller of the State of New York in
his capacity as sole trustee of the Common Retirement Fund and
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Administrative Head of the New York State and Local Employees’
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Retirement System and the New York State and Local Police and Fire
Retirement System and Lead Counsel (the ‘State Implementation
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Agreement”);
B.
The June 16, 2006 Master Agreement between the City
of New York Law Department, acting on behalf of the New York City
Pension Funds and Retirement Systems and Lead Counsel (the “City
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Agreement”);
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C.
Correspondence from Lead Counsel to the City of New
York Law department in October, 2007 relating to legal fees;
D.
Time and expense reports supplied by Lead Counsel to
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Lead Plaintiffs from September 2007 to (i) August 2010 (regarding
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time reports) and (ii) September 2010 (expense reports);
E.
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Plaintiffs describing the work performed on a monthly basis;
F.
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Narrative reports supplied by Lead Counsel to the Lead
Agendas of meetings between Lead Counsel and
representatives of the Lead Plaintiffs;
G.
A memorandum dated May 18, 2009 from Lead Counsel
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to the Lead Plaintiffs discussing billing for attorneys involved in
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document review;
H.
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The July 1, 2009 deposition transcript of Maurice
Peaslee, associate counsel in charge of securities litigation for the
office of the New York State Comptroller;
I.
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The July 2, 2009 deposition transcript of Karen J.
Seemen , assistant corporation counsel in the Pensions Divisions of
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the City of New York Law Department;
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Correspondence relating to expenses;
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The Second Consolidated Amended Complaint in this
action;
L.
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The Pleadings submitted to the Court is support of the
Settlement of this action;
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The Court docket in this action; and
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The pleadings and documents submitted in support of the
fee application.
8.
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M.
In addition to reviewing the documents discussed in Paragraph 7,
supra, I had numerous discussions with attorneys at Lead Counsel regarding the
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issues in the case and the extent of the work undertaken in connection with this
matter.
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I also reviewed certain statistical reports surveying class action
settlements and legal fee awards:
A.
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Brian T. Fitzpatrick, “An Empirical Study of Class
Action Settlements and Their Fee Awards,” Vanderbilt Law School
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Law & Economics Paper 10-06 (July 2010 draft) (the ‘Vanderbilt
Study”), a copy of which is attached hereto as Exhibit B.
B.
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Eisenberg & Miller, “Attorney Fees and Expenses in
Class Action Settlements: 1993-2008,” 7 Journal of Empirical Studies,
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Issues 2, 248-281 (June 2010) (“Eisenberg & Miller”), a copy of
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which is attached hereto as Exhibit C.
C.
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Class Actions”, 24 Class Action Reports 167 -234 (2003) (“Logan”), a
copy of which is attached hereto as Exhibit D.
The Fee Application
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10.
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Logan, et al., “Attorney Fee Awards in Common Fund
The Fee application seeks an award of $47.372 million. This is 7.59%
of the $624 million settlement amount. It also represents less than 80% of the total
time charges (the lodestar) recorded by Lead counsel alone. I have not been
requested as part of my engagement to opine as to the fairness of the settlement
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amount, but I would note that the amount was reached following years of
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exhaustive litigation and mediation by the Honorable A. Howard Matz, an
experienced Federal Judge appointed by this Court. In addition, the amount has
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been preliminarily found to be fair by the Court after submission of voluminous
papers in support, and no fees will be awarded until a final finding of fairness is
made. Therefore, assuming the settlement achieved through the efforts of Lead
Counsel and its associated counsel is found to be fair, the fee sought, while
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obviously a significant sum, seems clearly reasonable viewed either as a
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percentage of the settlement achieved or as a reflection of the work performed on
the case.
The Percentage Method
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11.
The most commonly used method to determine legal fees in class
action cases is to base the award on a percentage of the settlement achieved. As
has been reported by numerous commentators, including those who authored the
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studies listed in paragraph 9, supra, this method is by far the one most uses by
Courts considering attorney fee awards in class actions. The Eisenberg and Miller
study points out that since 1995 the percentage method has been the one
overwhelmingly used in securities class actions. The percentage sought here,
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7.59%, is in my view a low percentage in this kind of case and is clearly
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reasonable. This is supported by several factors:
A.
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The accepted “standard” according to many cases in the
Ninth Circuit is 25% of the settlement amount. While obviously this
standard is subject to and has been departed from in many decisions,
the fact remains that the percentage sought here is less than 1/3 of that
amount.
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B.
In my experience, it is unusual for a Lead Counsel in a
securities class action to seek a fee below 15% of the settlement
achieved, yet here the fee sought is barely ½ of that percentage.
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C.
Lead Counsel in this case did significant work on the
possible claim against Countrywide and the various defendants prior
to being retained by the Lead Plaintiffs. This work consisted of
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interviewing numerous witnesses, reviewing documents and even
drafting and filing a preliminary complaint, all without any assurance
that it would be retained as counsel by the Lead Plaintiffs. There was
also a risk that Lead Counsel’s clients would not be chosen lead
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plaintiff, and indeed others tried to claim that designation in hard
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fought motion practice. Finally, it was not at all clear that the case
would lead to a successful result – the defendants raised significant
defenses that could have upset any recovery. (See discussion of risk in
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Plaintiffs’ Memorandum of Points and Authorities in Support of
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Motion for Final Approval of Proposed Settlement and Plan of
Allocation of Net Settlement Fund, at II.B.) In my experience, courts
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have recognized in awarding fees that the risks taken by counsel in
pursuing a complex case to a successful conclusion are a significant
factor in awarding fees. Indeed, Eisenberg and Miller (page 251)
noted a “significant association between fee level . . . and risk.”
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D.
The fee percentage sought here was set by agreement
with the Lead Plaintiffs, sophisticated plaintiffs who were cognizant
of their fiduciary obligations to the class they represent. Indeed, the
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percentage fee set in the State Implementation Agreement was
reduced when the New York City Pension funds joined as co-lead
plaintiff. This is not a case where the Plaintiffs’ attorney set his own
fee – it was set by prior agreement with sophisticated clients. Given
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the importance of the Lead Plaintiff in the statutory scheme adopted in
1995, this is a significant fact.
E.
This is clearly not a case where a strike suit lawyer seeks
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a windfall fee after forcing a settlement without doing real substantive
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work. From the beginning groundwork mentioned in C above, and
through 3 years of intense legal work, as described in more detail in
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the papers filed in support of this application, Lead Counsel and its
associated firms took exactly the opposite approach, putting in
extraordinary work on the case and consulting on a regular basis with
their clients. This businesslike conduct of the litigation stands in
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sharp contrast to the abusive behavior which led to the calls for class
action reform.
F.
Comparison of the percentage fee sought here to the fees
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awarded in other class action cases supports the position that the
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percentage sought here is reasonable. Using figures from the
Vanderbilt Study, which purports to analyze all Federal Class action
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settlements in 2006 and 2007, the mean percentage fee awarded in
2006-7 in 233 securities class action settlements was 24.7%, and the
median was 25%, three times the percentage sought here. The mean
and median percentage awards for all class action settlements (not just
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securities cases) in the Ninth Circuit (111 cases) were 23.9% and
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25%. The author of the Vanderbilt Study points out that as
settlements get larger, the percentages go down, but the percentage
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sough here compares favorably even at the highest level. Thus the 2
cases he found in the $500 million to $1 billion range awarded a fee
averaging 12.9%, more than 50% higher than the fee sought here.
Indeed it is instructive that in the largest settlement, the Enron cases,
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where the settlement amount was 10 times what it is in this case, the
legal fees awarded equaled 9.5% of the $7 billion settlement. The
other studies I reviewed presented similar results. Thus Logan found
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that from 1993 to 2003 the mean percentage fee recovery in 277
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securities cases was 18.9%. Eisenberg and Miller report that from
1993 to 2008 in cases where the settlement exceeded $175.5 million,
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the mean percentage fee recovery was 12%.
G.
The amount arrived at by using the percentage method is
often tested for reasonableness by using what is called a “lodestar
crosscheck”, that is by checking that the fee awarded does not
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unreasonably exceed the amount that the lawyers would have earned
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had they been compensated for their work on a time basis. In
securities cases it is normal for the percentage fee awarded to result in
a multiple of the lodestar amount. In the Vanderbilt Study the average
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multiple for all types of class actions, including types such as
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consumer and debt collection cases which do not require the same
sophistication and intensive discovery and legal work of a case such
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as this, was still 0.98. Eisenberg found the mean multiple in securities
cases to be 1.75, and Logan found the average multiple for 877
securities cases from 1973 to 2003 was 4.29. Indeed, in this case
Lead counsel agreed with the Law Department of New York City that
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its fee in the case would be limited to 3 times its lodestar amount,
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demonstrating the view of a sophisticated client that a multiple of 3
was a normal cap. Yet in fact, the fee sought here is a multiple of less
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than 0.8 of the Labaton Firm’s lodestar alone, and less than 0.7 of the
total lodestar of all counsel who worked on the Plaintiffs’ side. Yet,
as discussed below, 100% of the lodestar would be a reasonable
reflection of what time charges should be in a case of this magnitude
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litigated as energetically as it was by all parties. In the Enron
settlement mentioned above, the fee awarded to the Plaintiffs’
attorneys was 5.2 times the lodestar. For Counsel to receive less than
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70% of the total lodestar under the percentage method is a certain
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indication that the fee arrived at is reasonable.
In sum, the percentage method yields a more than reasonable fee based on a
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number of factors intrinsic to this case as well as in comparison to other class
action fees.
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The Lodestar
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This was a large, complex case. As described in greater detail in the
papers submitted in support of this application it required a vast amount of legal
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work:
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a.
The case involved 44 defendants.
b.
There were five motions to dismiss the First Amended
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Complaint.
c.
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The Second Amended Complaint relied on statements
from 14 witnesses to support its claims.
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d.
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There were eight motions to dismiss the Second Amended
Complaint.
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e.
There was a bitterly fought battle over class certification.
f.
More than 29 million documents were produced, reviewed,
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and analyzed during discovery.
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There were more than 80 depositions, many of which
resulted in formal discovery disputes requiring court
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intervention.
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h.
There were myriad court hearings.
i.
The case involved the selection, retention and utilization of
three testifying and six consulting experts.
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j.
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There were five settlement mediation sessions.
There are several ways clients analyze legal fees to determine whether
they are reasonable. Indeed, it is important to note here that in fact there were 2
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active and sophisticated clients (see, e.g., Bierman declaration submitted in support
of this application, Par. 5) who were overseeing the work being done. As Mr.
Bierman points out (Par. 3), their activities included “frequent discussions with
Lead Counsel regarding overall strategies for the case; reviewing, commenting on
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and approving the filing of pleadings, briefs and other submissions; testifying at
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depositions; reviewing briefs and other submissions by defendants; overseeing and
approving, under terms and conditions NYSCRF believed to be appropriate, the
retention of certain experts and consultants; and having representatives of
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NYSCRF appear in Court when such appearances would be appropriate and
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beneficial to the class.” This was not a case where the lawyers had the
uncontrolled opportunity to create unnecessary work.
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14.
In my experience on large cases such as this, clients often look at the
staffing to see if there has been use of an excessive number of attorneys employed
on their cases. Obviously, in a case such as this where deadlines were short and
the motions and discovery required extensive work, it would be necessary to pull
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in many attorneys to meet deadlines. Yet the Lead Counsel time records show a
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remarkable concentration of work – 3/4 of Labaton’s lodestar amount attributable
to attorneys who were not specially hired and utilized for document review was
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accumulated by only 11 attorneys. This shows that there was a concerted effort to
make efficient use of the attorneys on the case. The client agrees: “NYSCRF
found the number of attorneys that Lead Counsel used to staff this litigation to be
reasonable.” (Bierman declaration, Par. 12).
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15.
In getting to the bottom of the practices attacked in the Second
Amended Complaint, Lead Counsel sought extensive document discovery.
Document discovery in a case such as this, where over 29 million documents were
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produced, is a huge undertaking. A conscientious attorney must be sure all those
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documents are reviewed by attorneys who will understand and be able to cull out
of that huge universe of materials the documents that will help prove the claims
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made. I have overseen document review in cases with a fraction of the documents
produced here, and I still found myself directing an army of lawyers working with
database specialist and other professionals who specialize in document review.
Lead Counsel thus chose, after consultation with Lead Plaintiffs, to employ
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specific lawyers to accomplish this task. These attorneys were not per diem
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attorneys or attorneys sent from a temp agency. They were hired as staff and
trained to do the document review thoroughly and properly. Lead Counsel also
consulted an expert on ethics to ascertain what was the proper way to charge for
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this work, and was advised that the work should be charged as lawyer time and
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made part of the lodestar. Over ½ of the Lead Counsel lodestar amount arises from
time charges by these attorneys. This was not only a reasonable way to accomplish
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the necessary document review, but it enabled the review to be accomplished by
relatively low priced lawyers, thus keeping the cost to the class as low as possible.
In the end, Lead Counsel employed over 170 such attorneys, and their blended
billing rate was $313/hour, which in my experience is a low rate for attorneys
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working in New York City or Los Angeles, and lower than Lead Counsel
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associates who would otherwise have conducted the document review.
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I have also examined the billing rates and hours expended by the other
Plaintiffs’ counsel working on this case. Looking at the monthly time reports and
comparing them to the work done in the corresponding months, the hours spent do
not seem excessive at all. The case went on for 32 months before it was settled in
April, and the non-document review attorneys at all of the firms on the Plaintiffs’
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side worked 57,600 hours in those months – an average of approximately 1,800
hours per month. Considering the huge amount of work done as described in the
submissions in support of the fee application, this time is, in my experience,
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surprisingly low.
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17.
I also reviewed the rise and fall of hours spent on the case by Lead
Counsel attorneys on a monthly basis to insure that the amount of work being done
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reflected the demands of the case and not some attempt to create hours wastefully.
I used the narrative work descriptions provided by Lead Counsel to its clients as
well as the docket sheet in the case to see if the variability in hours matched the
variability in work load, and I found that it did so. This conclusion is supported by
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a graph prepared by Lead Counsel (See Lead Plaintiffs’ Memorandum of Law in
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Support of Application for Award of Attorney’s Fees and Reimbursement of
Expenses, p. 16) which tracks the rise and fall of monthly hours, as well as hours
spent on document review and depositions, over the course of the case. The chart
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graphically demonstrates how the rise and fall of hours was dictated by the work
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demands of the case. There was no evidence that hours were created to do
unnecessary work. As the client put it (Bierman declaration, Par. 12), . . .“we are
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satisfied that the hours and resources that Plaintiffs’ Counsel devoted to this action
was a benefit to the Class.”
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The billing rates used to arrive at the lodestar amount were reasonable
in my view. The partner rates ranged from $550 to $865 per hour, rates that seem
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on the low side to me. While data on billing rates is not easy to find, I have
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awareness of billing rates from my practice experience and from interactions with
lawyers at large firms such as the ones opposite Lead Counsel in this case. I know
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that the top partners at those firms charge much more than the top rate of $865
charged by Lead Counsel – indeed billing rates of top partners at the large New
York firms approach and sometimes exceed $1000/hour, with Los Angeles large
firms at or near the same level. The average partner rate charged by the Labaton
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attorneys, $734, would be considered a bargain for a law firm in New York or Los
Angeles capable of handling a case of this magnitude and complexity. The
associate and paralegal rates seem similarly to be on the low side of what would be
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considered the “going rate”. Indeed, the blended rate for all attorneys who worked
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on the Plaintiff’s side of the case is $403, an extremely reasonable rate for a New
York or Los Angeles firm handling cases at this level. What is even more startling
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is the blended rate for attorneys that would be implied if the fee application is
approved. Since the lodestar multiplier sought is less than 0.7, if we were to take
70% of the charges for all the other timekeepers and subtract it from the total
amount sought in fees, the result of 43.354 million would be the amount sought for
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attorneys’ work. This would yield an effective blended rate sought by the fee
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application here for all the attorneys who worked on this case of $276, an
extremely low number in today’s market by any measure. It is interesting to
compare this $276 blended rate sought here to the hourly rate of $1,370 in 2003
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dollars that the Logan study found was the average received in fees awarded in 277
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securities cases settled from 1973 to 2003, and which would surely be higher
today.
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19.
In comparing the billing rates giving rise to the lodestar amount to
prevailing rates for lawyers handling comparable cases, it also should be noted that
non-contingent firm rates are set in a context where payment is anticipated on a
relatively current basis. Here, the Lead Counsel rates might not have been
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collected at all, as noted in the discussion of risk above, but even when they are
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collected, it is hardly current. Assuming this settlement is approved in November,
the average collection time for a dollar in fees charged by Lead counsel will
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exceed sixteen months. Given the risk of non-collection and the time delay in
collection, for comparative purposes the Lead Counsel rates are actually lower by
comparison than the raw numbers would indicate.
20.
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For all the above reasons, it is my opinion that the full lodestar
amount presented by Lead Counsel could form a reasonable basis for a fee award.
A fortiori, the fee sought in the application, which is less than 70% of that amount,
is reasonable.
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Expenses
21.
I have also reviewed the expenses sought in the application of
$8,080,517.87. When one subtracts out the expert fees of $4,939,243.07, the
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resulting amount of $3,141,274.80 is about 6.6% of the fees sought, a reasonable
number. Indeed, if one also subtracts out the $1,687,065.81 for electronic
document hosting, the remaining $1,454,208.99 of normal litigation expenses is
about 3% of the fees sought ($47,372,000) and only 2.1% of the fees charged
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($69,190,643.25). In my experience, this is a very low ratio. Indeed, even
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including expert and document hosting fees the total expenses amount to less than
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1.3% of the recovery, well below the mean of2.8% or the median ofl.7% found in
the Eisenberg and Miller study, at 274. It also is important to note that expenses
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were closely monitored by the clients, who received back-up for all expense
charged and actually disallowed certain charges which are not included in the
expenses sought. For all these reasons, the expense amount is clearly reasonable in
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my opinion.
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Summary
22.
The fee application here reflects a well run, exceptionally lawyered
case that achieved an excellent result for the class. The intimate involvement of
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the client and the voluminous substantive work undertaken by the law firm makes
this case a prime example of how securities class actions were intended to be
carried out under the changes adopted in 1995 in the PSLRA. The fee requested is
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anything but overreaching, not even seeking the full lodestar amount. Under all
the circumstances, the fee requested is in my opinion eminently reasonable.
Executed this 11th day of October, 2010.
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•
MICHAEL H. DIAMOND
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DIAMOND DECL. IN SuPP. OF ATTORNEy'S FEES & EXPENSES
LEAD CAsE No. CV 07-05295 MRP (MANX)
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Case 2:07-cv-05295-MRP -MAN Document 990-1
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Filed 10/11/10 Page 1 of 4 Page ID
Exhibit A
#:41139
MICHAEL H. DIAMOND
250 N. Canon Dr., Penthouse
Beverly Hills, CA 90210
310 550 8015
[email protected]
Areas of Expertise
1
Corporate governance, fiduciary duties and disclosure obligations of corporate
officers, directors and controlling shareholders generally and in acquisition
transactions
2
Litigation, analysis and resolution of complex business and financial disputes
3
All aspects of law firm and litigation management, including fee and billing
issues.
4
Legal aspects of television broadcast and production
Professional Experience
FOUNDER AND MEMBER, MHD MEDIATION,LLC
Beverly Hills, CA
October 2007 to present
1 Practice includes mediation, consulting and expert witness services
2 Serve as director of and consultant to large family business on wide range
of governance and business issues
3 Testified as expert witness on disclosure and fiduciary duty issues
4 Served as consultant on fiduciary duty issues
LITIGATION PARTNER, HEAD OF LOS ANGELES LITIGATION
DEPARTMENT
MILBANK, TWEED, HADLEY & MCCLOY
Los Angeles, CA
June 2000 to October 2007
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2
3
4
5
Practice focused on Corporate Governance, Fiduciary Duty and Securities
Represented former CEO in jury trial of securities class action involving alleged
misleading financial statements and disclosures
Represented former officers and directors in Breach of Fiduciary Duty jury trial
involving alleged interested financial transactions and fraudulent payments
Represented Corporate Directors in cases alleging breach of fiduciary duty
arising from alleged misleading financial disclosures in acquisition transactions
Represented bank in dispute over repurchase of mortgages
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Represented Creditors’ Committee of Pacific Gas & Electric in reorganization
case where primary issue was interpretation of financial forecasts
7 Advised corporate directors on fiduciary and disclosure obligations
8 Represented Television Network in dispute with affiliate
9 Represented Investment Advisor in Breach of Fiduciary Duty suit by Investor
10 Represented CEO of Family owned business in an attempt to invalidate a family
trust as part of a divorce action
11 Managed, Expanded and Upgraded Los Angeles Litigation Group
FOUNDING PARTNER
DIAMOND & OSTROW LLP
Los Angeles, CA
1
2
3
4
September 1997 to June 2000
Practice focused on Corporate Governance, Securities and business cases
Represented Broker/dealer sued by Orange County in matter arising from
derivative investments leading to Orange County bankruptcy
Represented securities underwriter in case alleging misleading financial
forecasts under Rule 144A
Advised special Board committee in Management Buyout transaction
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL, HEAD OF
CORPORATE COMMUNICATIONS
NEW WORLD COMMUNICATIONS GROUP
Los Angeles, CA and New York, NY
May 1994 to September 1997
1 Served as General Counsel of Publicly Traded Broadcast, Production
and Distribution Company.
2 Advised Directors on Governance, Fiduciary Obligations and
Disclosure issues.
3 Negotiated Groundbreaking Network Affiliation Agreements and
Station and Corporate Acquisitions
4 Assisted in preparation of SEC filings and disclosure documents and
was in charge of Annual Report Preparation
5 Generally supervised Legal Functions of the Company
LITIGATION PARTNER, MANAGING PARTNER OF LOS ANGELES OFFICE,
PARTNER IN CHARGE OF WORLDWIDE LITIGATION
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
New York, NY and Los Angeles, CA
August 1971 to May 1994
1 Practice focused on representation of and advice to Corporate Officers
and Directors in acquisition transactions where key issue was breach of
fiduciary duty and in financial disclosure and securities cases
2 Represented and advised directors of numerous companies including Walt
Disney, Carter Hawley Hale, Lockheed, Conoco, Mesa Petroleum, Hunt
#:41141
3
4
5
6
7
Oil, Humana, Hartford National Bank, Multibank, Woolworth on
governance and financial issues arising in acquisitions
Represented family members in disputes over governance of family
owned businesses
Advised law firm members on separation issues
Management functions included serving on firm’s policy committee,
compensation committee and part of office of executive partner
Involved in all aspects of firm management including strategic planning,
compensation and expansion as firm grew from fewer than 100 to over
1000 lawyers
Managing partner of Los Angeles Office from inception as it grew to over
100 lawyers
Education
1 Brown University
Providence, R.I.
A.B. Mathematics 1964
2 Columbia University Law School New York, NY J.D. (Magna cum
Laude) 1969
3 Harvard University Law School Cambridge, MA
Mediation Workshop in the Program of Instruction for Lawyers at the Program
on Negotiation 2007
#:41142
Exhibit B
#:41143
An Empirical Study of Class Action Settlements
and Their Fee Awards
Brian T. Fitzpatrick*
This article is a comprehensive empirical study of class action settlements in federal
court. Although there have been prior empirical studies of federal class action
settlements, these studies have either been confined to securities cases or have been
based on samples of cases that were not intended to be representative of the whole
(such as those settlements approved in published opinions). By contrast, in this
article, I attempt to study every federal class action settlement from the years 2006
and 2007. As far as I am aware, this study is the first attempt to collect a complete
set of federal class action settlements for any given year. I find that district court
judges approved 688 class action settlements over this two-year period, involving
nearly $33 billion. Of this $33 billion, roughly $5 billion was awarded to class
action lawyers, or about 15% of the total. Most judges chose to award fees by using
the highly discretionary percentage-of-the-settlement method, and the fees awarded
according to this method varied over a broad range, with a mean and median around
25%. Fee percentages were strongly and inversely associated with the size of the
settlement. The age of the case at settlement was positively associated with fee
percentages. There was some variation in fee percentages depending on the subject
matter of the litigation and the geographic circuit in which the district court was
located, with lower percentages in securities cases and in settlements from the
Second and Ninth Circuits. There was no evidence that fee percentages were
associated with whether the class action was certified as a settlement class or with the
political affiliation of the judge who made the award.
I.
Introduction
Class actions have been the source of great controversy in the United
States. Corporations fear them. 1 Policymakers have tried to corral them. 2
*
Associate Professor of Law, Vanderbilt University Law School. J.D., 2000, Harvard Law
School. Address: Vanderbilt Law School, 131 21st Ave South, Nashville, TN 37203; email:
[email protected]. Research for this article was supported by Vanderbilt’s
Cecil D. Branstetter Litigation & Dispute Resolution Program and Law & Business Program.
I am grateful for comments I received from Dale Collins, Robin Effron, Ted Eisenberg,
Deborah Hensler, Richard Nagareda, Randall Thomas, an anonymous referee for this journal,
and participants at workshops at Vanderbilt Law School, the University of Minnesota Law
School, the 2009 Meeting of the Midwestern Law and Economics Association, and the 2009
Conference on Empirical Legal Studies. I am also grateful for the research assistance of Drew
Dorner, David Dunn, James Gottry, Chris Lantz, Gary Peeples, Keith Randall, Andrew Yi,
and, especially, Jessica Pan.
1
See, e.g., Robert W. Wood, Defining Employees and Independent Contractors, BUS. L.
TODAY, May-June 2008, at 45, 48.
#:41144
Commentators and scholars have suggested countless ways to reform them. 3
Despite all of the attention showered on class actions, and despite the
excellent empirical work on class actions to date, the data that currently
exists on how the class action system operates in the United States is limited.
We do not know, for example, how much money changes hands in class
action litigation every year. We do not know how much of this money goes
to class action lawyers rather than class members. Indeed, we do not even
know how many class action cases are resolved on an annual basis. In order
to intelligently assess our class action system as well as whether and how it
should be reformed, answers to all of these questions are important. Answers
to these questions are equally important to policymakers in other countries
who are currently thinking about adopting American-style class action
devices. 4
This article tries to answer these and other questions by reporting the
results of an empirical study that attempted to gather all class action
settlements approved by federal judges over a recent two-year period, 2006
and 2007. I use class action settlements as the basis of the study because,
even more so than individual litigation, virtually all cases certified as class
actions and not dismissed before trial end in settlement.5 I use federal
settlements as the basis of the study for practical reasons: it was easier to
identify and collect settlements approved by federal judges than those
approved by state judges. Systematic study of class action settlements in
state courts must await further study;6 these future studies are important
2
See Private Securities Litigation Reform Act (PSLRA) of 1995, Pub. L. No. 104-67, 109
Stat. 737 (codified as amended in scattered sections of 15 U.S.C.); Class Action Fairness Act
of 2005, 28 U.S.C. §§ 1453, 1711-1715 (2006).
3
See, e.g., Robert G. Bone, Agreeing to Fair Process: The Problem with Contractarian
Theories of Procedural Fairness, 83 B.U. L. REV. 485, 490-94 (2003); Allan Erbsen, From
“Predominance” to “Resolvability”: A New Approach to Regulating Class Actions, 58 VAND.
L. REV. 995, 1080-81 (2005).
4
See, e.g., Samuel Issacharoff & Geoffrey Miller, Will Aggregate Litigation Come to
Europe?, 62 VAND. L. REV. 179 (2009).
5
See, e.g., Emery Lee & Thomas E. Willing, Impact of the Class Action Fairness Act on the
Federal Courts: Preliminary Findings from Phase Two’s Pre-CAFA Sample of Diversity Class
Actions 11 (Federal Judicial Center 2008); Tom Baker & Sean J. Griffith, How the Merits
Matter: D&O Insurance and Securities Settlements, 157 U. PA. L. REV. 755 (2009).
6
Empirical scholars have begun to study state court class actions in certain subject areas
and in certain states. See, e.g., Robert B. Thompson & Randall S. Thomas, The Public and
Private Faces of Derivative Suits, 57 VAND. L. REV. 1747 (2004); Robert B. Thompson &
Randall S. Thomas, The New Look of Shareholder Litigation: Acquisition-Oriented Class
Actions, 57 VAND. L. REV. 133 (2004); Findings of the Study of California Class Action
Litigation (Administrative Office of the Courts) (First Interim Report, 2009).
2
#:41145
because there may be more class action settlements in state courts than there
are in federal court.7
This article attempts to make three contributions to the existing empirical
literature on class action settlements. First, virtually all of the prior empirical
studies of federal class action settlements have either been confined to
securities cases or have been based on samples of cases that were not
intended to be representative of the whole (such as those settlements
approved in published opinions). In this article, by contrast, I attempt to
collect every federal class action settlement from the years 2006 and 2007.
As far as I am aware, this study is the first to attempt to collect a complete set
of federal class action settlements for any given year.8 As such, this article
allows us to see for the first time a complete picture of the cases that are
settled in federal court. This includes aggregate annual statistics, such as
how many class actions are settled every year, how much money is approved
every year in these settlements, and how much of that money class action
lawyers reap every year. It also includes how these settlements are
distributed geographically as well as by litigation area, what sort of relief was
provided in the settlements, how long the class actions took to reach
settlement, and an analysis of what factors were associated with the fees
awarded to class counsel by district court judges.
Second, because this article analyzes settlements that were approved in
both published and unpublished opinions, it allows us to assess how well the
few prior studies that looked beyond securities cases but relied only on
published opinions capture the complete picture of class action settlements.
To the extent these prior studies adequately capture the complete picture, it
may be less imperative for courts, policymakers, and empirical scholars to
spend the considerable resources needed to collect unpublished opinions in
order to make sound decisions about how to design our class action system.
Third, this article studies factors that may influence district court judges
when they award fees to class counsel that have not been studied before. For
example, in light of the discretion district court judges have been delegated
over fees under Rule 23, as well as the salience the issue of class action
litigation has assumed in national politics, Realist theories of judicial
behavior would predict that Republican judges would award smaller fee
percentages than Democratic judges. I study whether the political beliefs of
district court judges are associated with the fees they award, and, in doing so,
contribute to the literature that attempts to assess the extent to which these
beliefs influence the decisions of not just appellate judges, but trial judges as
7
See DEBORAH R. HENSLER, ET AL., CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR
PRIVATE GAIN 56 (2000).
8
Of course, I cannot be certain that I found every one of the class actions that settled in
federal court over this period. Nonetheless, I am confident that, if I did not find some, the
number I did not find is small and would not contribute meaningfully to the data reported in
this article.
3
#:41146
well. Moreover, it contributes to the small but growing literature examining
whether the ideological influences found in published judicial decisions
persist when unpublished decisions are examined as well.
In Part II of this article, I briefly survey the existing empirical studies of
class action settlements. In Part III, I describe the methodology I used to
collect the 2006-2007 federal class action settlements and I report my
findings regarding these settlements. District court judges approved 688
class action settlements over this two-year period, involving over $33 billion.
I report a number of descriptive statistics for these settlements, including the
number of plaintiff versus defendant classes, the distribution of settlements
by subject matter, the age of the case at settlement, the geographic
distribution of settlements, the number of settlement classes, the distribution
of relief across settlements, and various statistics on the amount of money
involved in the settlements. It should be noted that, despite the fact that the
few prior studies that looked beyond securities settlements appeared to
oversample larger settlements, much of the analysis set forth in this article is
consistent with these prior studies. This suggests that scholars may not need
to sample unpublished as well as published opinions in order to paint an
adequate picture of class action settlements.
In Part IV, I perform an analysis of the fees judges awarded to class
action lawyers in the 2006-2007 settlements. All told, judges awarded nearly
$5 billion over this two-year period in fees and expenses to class action
lawyers, or about 15% of the total amount of the settlements. Most federal
judges chose to award fees by using the highly discretionary percentage-ofthe-settlement method, and, unsurprisingly, the fees awarded according to
this method varied over a broad range, with a mean and median around 25%.
Using regression analysis, I confirm prior studies and find that fee
percentages are strongly and inversely associated with the size of the
settlement. Further, I find that the age of the case is positively associated
with fee percentages but that the percentages were not associated with
whether the class action was certified as a settlement class. There also
appeared to be some variation in fee percentages depending on the subject
matter of the litigation and the geographic circuit in which the district court
was located. Fee percentages in securities cases were lower than the
percentages in some but not all other areas, and district courts in some
circuits—the Ninth and the Second (in securities cases)—awarded lower fee
percentages than courts in many other circuits. Finally, the regression
analysis did not confirm the Realist hypothesis: there was no association
between fee percentage and the political beliefs of the judge in any
regression.
II.
Prior Empirical Studies of Class Action Settlements
4
#:41147
There are many existing empirical studies of federal securities class
action settlements.9 Studies of securities settlements have been plentiful
because for-profit organizations maintain lists of all federal securities class
action settlements for the benefit of institutional investors that are entitled to
file claims in these settlements.10 Using this data, studies have shown that
since 2005, for example, there have been roughly 100 securities class action
settlements in federal court each year, and these settlements have involved
between $7 billion and $17 billion per year.11 Scholars have used this data to
analyze many different aspects of these settlements, including the factors that
are associated with the percentage of the settlements that courts have
awarded to class action lawyers.12 These studies have found that the mean
and median fees awarded by district court judges are between 20% and 30%
of the settlement amount. 13 These studies have also found that a number of
factors are associated with the percentage of the settlement awarded as fees,
including (inversely) the size of the settlement, the age of the case, whether a
public pension fund was the lead plaintiff, and whether certain law firms
were class counsel.14 None of these studies has examined whether the
political affiliation of the federal district court judge awarding the fees was
associated with the size of awards.
9
See, e.g., James D. Cox & Randall S. Thomas, Does the Plaintiff Matter? An Empirical
Analysis of Lead Plaintiffs in Securities Class Actions, 106 COLUM. L. REV. 1587 (2006);
James D. Cox, Randall S. Thomas & Lynn Bai, There are Plaintiffs and . . . there are
Plaintiffs: An Empirical Analysis of Securities Class Action Settlements, 61 VAND. L. REV. 355
(2008); Theodore Eisenberg, Geoffrey Miller & Michael A. Perino, A New Look at Judicial
Impact: Attorneys’ Fees in Securities Class Actions after Goldberger v. Integrated Resources,
Inc., 29 WASH. U. J.L. & POL’Y 5 (2009); Michael A. Perino, Markets and Monitors: The
Impact of Competition and Experience on Attorneys’ Fees in Securities Class Actions (St.
John’s Legal Studies, Research Paper No. 06-0034, 2006), available at
http://ssrn.com/abstract=870577 [hereinafter Perino, Markets and Monitors]; Michael A.
Perino, The Milberg Weiss Prosecution: No Harm, No Foul? (St. John’s Legal Studies,
Research
Paper
No.
08-0135,
2008),
available
at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133995 [hereinafter Perino, Milberg
Weiss].
10
See, e.g., RiskMetrics Group, available at http://www.riskmetrics.com/scas.
11
See CORNERSTONE RESEARCH, SECURITIES CLASS ACTION SETTLEMENTS: 2007 REVIEW
ANALYSIS
1
(2008),
available
at
http://securities.stanford.edu/Settlements/REVIEW_19952007/Settlements_Through_12_2007.pdf.
AND
12
See, e.g., Eisenberg, Miller & Perino, supra note 9, at 17-24, 28-36; Perino, Markets and
Monitors, supra note 9, at 12-28, 39-44; Perino, Milberg Weiss, supra note 9, at 32-33, 39-60.
13
See, e.g., Eisenberg, Miller & Perino, supra note 9, at 17-18, 22, 28, 33; Perino, Markets
and Monitors, supra note 9, at 20-21, 40; Perino, Milberg Weiss, supra note 9, at 32-33, 51-53.
14
See, e.g., Eisenberg, Miller & Perino, supra note 9, at 14-24, 29-30, 33-34; Perino,
Markets and Monitors, supra note 9, at 20-28, 41; Perino, Milberg Weiss, supra note 9, at 3958.
5
#:41148
There are no comparable organizations that maintain lists of nonsecurities class action settlements. As such, studies of class action
settlements beyond the securities area are much rarer, and, when they have
been done, rely on samples of settlements that were not intended to be
representative of the whole. The two largest studies of class action
settlements not limited to securities class actions are a 2004 study by Ted
Eisenberg and Geoff Miller,15 which was recently updated to include data
through 2008,16 and a 2003 study by Class Action Reports.17 The EisenbergMiller studies collected data from class action settlements in both state and
federal courts found from court opinions published in the Westlaw and Lexis
databases and checked against lists maintained by the CCH Federal
Securities and Trade Regulation Reporters. Through 2008, their studies have
now identified 689 settlements over a sixteen-year period, or less than 45
settlements per year.18 Over this sixteen-year period, their studies found that
the mean and median settlement amounts were, respectively, $116 million
and $12.5 million (in 2008 dollars), and that the mean and median fees
awarded by district courts were 23% and 24% of the settlement,
respectively. 19 Their studies also performed an analysis of fee percentages
and fee awards. For the data through 2002, they found that the percentage of
the settlement awarded as fees was associated with the size of the settlement
(inversely), the age of the case, and whether the district court went out of its
way to comment on the level of risk that class counsel had assumed in
pursuing the case.20 For the data through 2008, they regressed only fee
awards and found that the awards were inversely associated with the size of
the settlement, that state courts gave lower awards than federal courts, and
that the level of risk was still associated with larger awards.21 Their studies
have not examined whether the political affiliations of the federal district
court judges awarding fees were associated with the size of the awards.
The Class Action Reports study collected data on 1120 state and federal
settlements over a 30 year period, or less than 40 settlements per year.22
15
See Theodore Eisenberg & Geoffrey Miller, Attorney Fees in Class Action Settlements:
An Empirical Study, 1 J. EMPIRICAL LEGAL STUD. 27 (2004).
16
See Theodore Eisenberg & Geoffrey Miller, Attorneys’ Fees and Expenses in Class
Action Settlements: 1993-2008, 7 JOURNAL OF EMPIRICAL LEGAL STUDIES 248 (2010)
[hereinafter Eisenberg & Miller II].
17
See Stuart J. Logan, Jack Moshman & Beverly C. Moore, Jr., Attorney Fee Awards in
Common Fund Class Actions, 24 Class Action Reports 169 (Mar.-Apr. 2003).
18
See Eisenberg & Miller II, supra note 16, at 251.
19
See id. at 258-59.
20
See Eisenberg & Miller, supra note 15, at 61-62.
21
22
See Eisenberg & Miller, supra note 15, at 34.
6
#:41149
Over the same ten-year period analyzed by the Eisenberg-Miller study, the
Class Action Reports data found mean and median settlements of $35.4 and
$7.6 million (in 2002 dollars), as well as mean and median fee percentages
between 25% and 30%. 23 Professors Eisenberg and Miller performed an
analysis of the fee awards in the Class Action Reports study and found the
percentage of the settlement awarded as fees was likewise associated with the
size of the settlement (inversely) and the age of the case. 24
III.
Federal Class Action Settlements 2006 & 2007
As far as I am aware, there has never been an empirical study of all
federal class action settlements in a particular year. In this Article, I attempt
to make such a study for two recent years: 2006 and 2007. In order to
compile a list of all federal class settlements in 2006 and 2007, I started with
one of the aforementioned lists of securities settlements, the one maintained
by RiskMetrics, and I supplemented this list with settlements that could be
found through three other sources: 1) broad searches of district court opinions
in the Westlaw and Lexis databases,25 2) four reporters of class action
settlements—BNA Class Action Litigation Report, Mealey’s Jury Verdicts
and Settlements, Mealey’s Litigation Report, and the Class Action World
website26—and 3) a list from the Administrative Office of Courts of all
district court cases coded as class actions that terminated by settlement
between 2005 and 2008.27 I then removed any duplicate cases and examined
the docket sheets and court orders of each of the remaining cases to
determine whether the cases were in fact certified as class actions under
either Rule 23, Rule 23.1, or Rule 23.2.28 For each of the cases verified as
such, I gathered the district court’s order approving the settlement, the district
court’s order awarding attorneys’ fees, and, in many cases, the settlement
agreements and class counsel’s motions for fees, from electronic databases
23
See id. at 47, 51.
24
See id. at 61-62.
25
The searches consisted of the following terms: ("class action" & (settle! /s approv! /s
(2006 2007))); (((counsel attorney) /s fee /s award!) & (settle! /s (2006 2007)) & “class
action”); (“class action” /s settle! & da(aft 12/31/2005 & bef 1/1/2008)); (“class action” /s (fair
reasonable adequate) & da(aft 12/31/2005 & bef 1/1/2008)).
26
See http://classactionworld.com/
27
I examined the AO lists in the year before and after the two-year period under
investigation because the termination date recorded by the AO was not necessarily the same
date the district court approved the settlement.
28
See FED. R. CIV. P. 23, 23.1 & 23.2. I excluded from this analysis opt-in collective
actions, such as those brought pursuant to the provisions of the Fair Labor Standards Act, see
29 U.S.C. § 216(b), if such actions did not also include claims certified under the opt-out
mechanism in Rule 23.
7
#:41150
(such as Westlaw or PACER), and, when necessary, from the clerk’s offices
of the various federal district courts. In this Part, I report the characteristics
of the settlements themselves, and, in the next Part, I report the
characteristics of the attorneys’ fees awarded to class counsel by the district
courts that approved the settlements.
A. Number of settlements
I found 688 settlements approved by federal district courts during 2006
and 2007 using the methodology described above. This is almost the exact
same number the Eisenberg-Miller study found over a sixteen-year period in
both federal and state court. Indeed, the number of annual settlements
identified in this study is several times the number of annual settlements that
have been identified in any prior empirical study of class action settlements.
Of the 688 settlements I found, 304 of these settlements were approved in
2006 and 384 were approved in 2007.29
B. Defendant versus plaintiff classes
Although Rule 23 permits federal judges to certify either a class of
plaintiffs or a class of defendants, it is widely assumed that it is extremely
rare for courts to certify defendant classes.30 My findings confirm this
widely held assumption. Of the 688 class action settlements approved in
2006 and 2007, 685 involved plaintiff classes and only three involved
defendant classes. All three of these defendant-class settlements were in
employment benefits cases, where companies sued classes of current or
former employees. 31
C. Settlement subject areas
29
A settlement was assigned to a particular year if the district court judge’s order approving
the settlement was dated between January 1 and December 31 of that year. Cases involving
multiple defendants sometimes settled over time because defendants would settle separately
with the plaintiff class. All such partial settlements approved by the district court on the same
date were treated as one settlement. Partial settlements approved by the district court on
different dates were treated as different settlements.
30
See, e.g., Robert H. Klonoff, Edward K.M. Bilich & Suzette M. Malveaux, Class Actions
and Other Multi-Party Litigation: Cases and Materials 1061 (2d ed. 2006).
31
See Halliburton Company v. Graves, No. 04-00280 (S.D. Tex., Sep. 28, 2007); Rexam,
Inc. v. United Steel Workers of America, No. 03-2998 (D. Minn. Aug. 29, 2007); Rexam, Inc.
v. United Steel Workers of America, No. 03-2998 (D. Minn. Sept. 17, 2007).
8
Case 2:07-cv-05295-MRP -MAN Document 990-2 Filed 10/11/10 Page 10 of 42 Page ID
#:41151
Although courts are free to certify Rule 23 classes in almost any subject
area, it is widely assumed that securities settlements dominate the federal
class action docket. 32 At least in terms of the number of settlements, my
findings reject this conventional wisdom. As Table 1 shows, although
securities settlements comprised a large percentage of the 2006 and 2007
settlements, they did not comprise a majority of those settlements. As one
would have expected in light of Supreme Court precedent over the last two
decades,33 there were almost no mass tort class actions (included in the
“Other” category) settled over the two-year period.
Although the Eisenberg-Miller study through 2008 is not directly
comparable on the distribution of settlements across litigation subject areas—
because its state and federal court data cannot be separated (more than 10%
of the settlements were from state court34) and because it excludes
settlements in fee-shifting cases—their study through 2008 is the best
existing point of comparison. Interestingly, despite the fact that state courts
were included in their data, their study through 2008 found about the same
percentage of securities cases (39%) as my 2006-2007 dataset shows.35 But
their study found many more consumer (18%) and antitrust (10%) cases
while finding many fewer labor and employment (8%), employee benefits
(6%), and civil rights (3%) cases.36 This is not unexpected given their
reliance on published opinions and their exclusion of fee-shifting cases.
32
See, e.g., John C. Coffee, Jr., Reforming the Security Class Action: An Essay on
Deterrence and its Implementation, 106 COLUM. L. REV. 1534, 1539-40 (2006) (describing
securities class actions as “the 800-pound gorilla that dominates and overshadows other forms
of class actions”).
33
See, e.g., Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT. REV. 183,
208.
34
35
See id. at 262.
36
See id.
9
#:41152
Table 1: The number of class action settlements approved by federal
judges in 2006 and 2007 in each subject area
Subject matter
Securities
Labor and Employment
Consumer
Employee Benefits
Civil Rights
Debt Collection
Antitrust
Commercial
Other
Total
Number of settlements
2006
2007
122 (40%)
135 (35%)
41 (14%)
53 (14%)
40 (13%)
47 (12%)
23 (8%)
38 (10%)
24 (8%)
37 (10%)
19 (6%)
23 (6%)
13 (4%)
17 (4%)
4 (1%)
9 (2%)
18 (6%)
25 (6%)
304
384
Note: Securities: cases brought under federal and state securities laws. Labor and
Employment: workplace claims brought under either federal or state law, with the exception
of ERISA cases. Consumer: cases brought under the Fair Credit Reporting Act as well as
cases for consumer fraud, etc. Employee Benefits: ERISA cases. Civil Rights: cases
brought under 42 U.S.C. § 1983 or cases brought under the Americans with Disability Act
seeking non-workplace accommodations. Debt Collection: cases brought under the Fair
Debt Collection Practices Act. Antirust: cases brought under federal or state antitrust laws.
Commercial: cases between businesses, excluding antitrust cases. Other: includes, among
other things, derivative actions against corporate managers and directors, environmental
suits, insurance suits, Medicare and Medicaid suits, product liability suits, and mass tort
suits.
Sources: Westlaw, PACER, district court clerks’ offices.
D. Settlement classes
The Federal Rules of Civil Procedure permit parties to seek certification
of a suit as a class action for settlement purposes only.37 When the district
court certifies a class in such circumstances, the court need not consider
whether it would be manageable to try the litigation as a class.38 So-called
“settlement classes” have always been more controversial than classes
certified for litigation because they raise the prospect that, at least where
there are competing class actions filed against the same defendant, the
defendant could play class counsel off one another to find the one willing to
settle the case for the least amount of money. 39 Prior to the Supreme Court’s
1997 opinion in Amchem Products, Inc. v. Windsor,40 it was uncertain
37
See Martin H. Redish, Settlement Class Actions, The Case-or-Controversy Requirement,
and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 553 (2006).
38
See Amchem Products, Inc v Windsor, 521 US 591, 620 (1997).
39
See Redish, supra note 37, at 557-59.
40
521 US 591 (1997).
10
#:41153
whether the Federal Rules even permitted settlement classes. It may
therefore be a bit surprising to learn that 68% of the federal settlements in
2006 and 2007 were settlement classes. This percentage is higher than the
percentage found in the Eisenberg-Miller studies, which found that only 57%
of class action settlements in state and federal court between 2003 and 2008
were settlement classes. 41 It should be noted that the distribution of litigation
subject areas among the settlement classes in my 2006-2007 federal data set
did not differ much from the distribution among non-settlement classes, with
two exceptions. One exception was consumer cases, which were nearly three
times as prevalent among settlement classes (15.9%) as non-settlement
classes (5.9%); the other was civil rights cases, which were four times as
prevalent among non-settlement classes (18.0%) as settlements classes
(4.5%). In light of the skepticism with which the courts had long treated
settlement classes, one might have suspected that courts would award lower
fee percentages in such settlements. Nonetheless, as I report in Part III,
whether a case was certified as a settlement class was not associated with the
fee percentages awarded by federal district court judges.
E. The age at settlement
One interesting question is how long class actions were litigated before
they reached settlement. Unsurprisingly, cases reached settlement over a
wide range of ages. 42 As shown in Table 2, the average time to settlement
was a bit more than 3 years (1196 days) and the median time was a bit under
3 years (1068 days). The average and median ages here are similar to those
found in Eisenberg-Miller study through 2002, which found averages of 3.35
years in fee-shifting cases and 2.86 years in non-fee-shifting cases, and
medians of 4.01 years in fee-shifting cases and 3.0 years in non-fee-shifting
cases.43 Their study through 2008 did not report case ages.
The shortest time to settlement was 105 days in a labor and employment
case.44 The longest time to settlement was nearly 15 years (5443 days) in a
commercial case.45 The average and median time to settlement varied
41
42
The age of the case was calculated by subtracting the date the relevant complaint was
filed from the date the settlement was approved by the district court judge. The dates were
taken from PACER. For consolidated cases, I used the date of the earliest complaint. If the
case had been transferred, consolidated, or removed, the date the complaint was filed was not
always available from PACER. In such cases, I used the date the case was transferred,
consolidated, or removed as the start date.
43
See Eisenberg & Miller, supra note 15, at 59-60.
44
See Clemmons v. Rent-A-Center West, Inc., No. 05-6307 (D. Or. Jan. 20, 2006).
45
See Allapattah Services Inc. v. Exxon Corp., No. 91-0986 (S.D. Fla. Apr. 7, 2006).
11
#:41154
significantly by litigation subject matter, with securities cases generally
taking the longest time and debt collection cases taking the shortest time.
Labor and employment cases and consumer cases also settled relatively early.
Table 2: The number of days 2006-2007 federal class action cases took to
reach settlement in each subject area
Subject matter
Average
Median
Minimum Maximum
Securities
Consumer
Employee Benefits
Civil Rights
Debt Collection
Antitrust
Commercial
Other
1438
928
963
1162
1373
738
1140
1267
1065
1327
786
720
1161
1360
673
1167
760
962
392
105
127
164
181
223
237
163
185
3802
2497
4961
3157
3354
1973
2480
5443
3620
All
1196
1068
105
5443
Source: PACER.
F. The location of settlements
The 2006-2007 federal class action settlements were not distributed
across the country in the same way federal civil litigation is in general. As
Figure 1 shows, some of the geographic circuits attracted much more class
action attention than we would expect based on their docket size, and others
attracted much less. In particular, district courts in the First, Second,
Seventh, and Ninth Circuits approved a much larger share of class action
settlements than the share of all civil litigation they resolved, with the First,
Second, and Seventh Circuits approving nearly double the share and the
Ninth Circuit approving one-and-one half times the share. By contrast, the
shares of class action settlements approved by district courts in the Fifth and
Eighth Circuits were less than one half of their share of all civil litigation,
with the Third, Fourth, and Eleventh Circuits also exhibiting significant
underrepresentation.
With respect to a comparison with the Eisenberg-Miller studies, their
federal court data through 2008 can be separated from their state court data
on the question of the geographic distribution of settlements, and there are
some significant differences between their federal data and the numbers
reflected in Figure 1. Their study reported considerably higher proportions
of settlements than I found from the Second (23.8%), Third (19.7%), Eighth
12
#:41155
(4.8%), and D.C. (3.3%) Circuits, and considerably lower proportions from
the Fourth (1.3%), Seventh (6.8%), and Ninth (16.6%) Circuits.46
Figure 1: The percentage of 2006-2007 district court civil terminations
and class action settlements in each federal circuit
Sources: PACER, Statistical Tables for the Federal Judiciary 2006 & 2007 (available at
http://www.uscourts.gov/stats/index.html).
Figure 2 separates the class action settlement data in Figure 1 into
securities and non-securities cases. Figure 2 suggests that the overrepresentation of settlements in the First and Second Circuits is largely
attributable to securities cases, whereas the over-representation in the
Seventh Circuit is attributable to non-securities cases, and the overrepresentation in the Ninth is attributable to both securities and non-securities
cases.
46
13
#:41156
Figure 2: The percentage of 2006-2007 district court civil terminations
and class action settlements in each federal circuit
Sources: PACER, Statistical Tables for the Federal Judiciary 2006 & 2007 (available at
http://www.uscourts.gov/stats/index.html).
It is interesting to ask why some circuits received more class action
attention than others. One hypothesis is that class actions are filed in circuits
where class action lawyers believe they can find favorable law or favorable
judges. Federal class actions often involve class members spread across
multiple states, and, as such, class action lawyers may have a great deal of
discretion over which district they file suit in.47 One way in which law or
judges may be favorable to class action attorneys is with regard to attorneys’
fees. In Part III, I attempt to test whether district court judges in the circuits
with the most over- and under-subscribed class action dockets award
attorneys’ fees that would attract or discourage filings there; I find no
evidence that they do.
Another hypothesis is that class action suits are settled in jurisdictions
where defendants are located. This might be the case because, although class
action lawyers may have discretion over where to file, venue restrictions
might ultimately restrict cases to jurisdictions in which defendants have their
corporate headquarters or other operations.48 This might explain why the
47
See Samuel Issacharoff & Richard Nagareda, Class Settlements Under Attack, 156 U. PA.
L. REV. 1649, 1662 (2008).
48
See 28 U.S.C. §§ 1391, 1404, 1406, 1407. See also Foster v. Nationwide Mutual Ins. Co.,
No. 07-04928, 2007 U.S. Dist. LEXIS 95240 at *2-17 (N.D. Cal. Dec. 14, 2007) (transferring
14
#:41157
Second Circuit, with the financial industry in New York, sees so many
securities suits, and why other circuits with cities with a large corporate
presence, such as the First (Boston), Seventh (Chicago), and Ninth (Los
Angeles and San Francisco), see more settlements than one would expect
based on the size of their civil dockets.
Another hypothesis might be that class action lawyers file cases wherever
it is most convenient for them to litigate the cases—i.e., in the cities in which
their offices are located. This, too, might explain the Second Circuit’s
overrepresentation in securities settlements, with prominent securities firms
located in New York, as well as the over-representation of other settlements
in some of the circuits in which major metropolitan areas with prominent
plaintiffs’ firms are found.
G. Type of relief
Under Rule 23, district court judges can certify class actions for
injunctive or declaratory relief, for money damages, or for a combination of
the two.49 In addition, settlements can provide money damages both in the
form of cash as well as in the form of in-kind relief, such as coupons to
purchase the defendant’s products.50
As shown in Table 3, the vast majority of class actions settled in 2006
and 2007 provided cash relief to the class (89%), but a substantial number
also provided in-kind relief (6%) or injunctive or declaratory relief (23%).
As would be expected in light of the focus on consumer cases in the debate
over the anti-coupon provision in the Class Action Fairness Act of 2005,51
consumer cases had the greatest percentage of settlements providing for inkind relief (30%). Civil rights cases had the greatest percentage of
settlements providing for injunctive or declaratory relief (75%), though
almost half of civil rights cases also provided some cash relief (49%). The
securities settlements were quite distinctive from the settlements in other
venue to jurisdiction where the defendant’s corporate headquarters were located). One prior
empirical study of securities class action settlements found that 85% of such cases are filed in
the home circuit of the defendant corporation. See James D. Cox, Randall S. Thomas & Lynn
Bai, Do Differences in Pleading Standards Cause Forum Shopping in Securities Class
Actions?: Doctrinal and Empirical Analyses, 2009 WIS. L. REV. 421, 429, 440, 450-51 (2009).
49
See FED. R. CIV. P. 23(b).
50
These coupon settlements have become very controversial in recent years, and Congress
discouraged them in the Class Action Fairness Act of 2005 by tying attorneys’ fees to the
value of coupons that were ultimately redeemed by class members as opposed to the value of
coupons offered class members. See 28 U.S.C. § 1712.
51
See, e.g., 151 CONG. REC. H723 (2005) (statement of Rep. Sensenbrenner) (arguing that
consumers are “seeing all of their gains go to attorneys and them just getting coupon
settlements from the people who have allegedly done them wrong.”).
15
#:41158
areas in their singular focus on cash relief: every single securities settlement
provided cash to the class and almost none of them provided in-kind,
injunctive, or declaratory relief. This is but one example of how the focus on
securities settlements in the prior empirical scholarship can lead to a distorted
picture of class action litigation.
Table 3: The percentage of 2006 and 2007 class action settlements
providing each type of relief in each subject area
Subject matter
Cash
In-kind relief Injunctive or
declaratory
relief
Securities
(n=257)
(n=94)
Consumer
(n=87)
Employee Benefits
(n=61)
Civil Rights
(n=61)
Debt Collection
(n=42)
Antitrust
(n=30)
Commercial
(n=13)
Other
(n=43)
All
(n=688)
100%
0%
2%
95%
6%
29%
74%
30%
37%
90%
0%
34%
49%
2%
75%
98%
0%
12%
97%
13%
7%
92%
0%
62%
77%
7%
33%
89%
6%
23%
Note: Cash: cash, securities, refunds, charitable contributions, contributions to employee
benefit plans, forgiven debt, relinquishment of liens or claims, and liquidated repairs to
property. In-kind relief: vouchers, coupons, gift cards, warranty extensions, merchandise,
services, and extended insurance policies. Injunctive or declaratory relief: modification of
terms of employee benefit plans, modification of compensation practices, changes in business
practices, capital improvements, research, and unliquidated repairs to property.
H. Settlement money
Although securities settlements did not comprise the majority of federal
class action settlements in 2006 and 2007, they did comprise the majority of
the money—indeed, the vast majority of the money—involved in class action
16
#:41159
settlements. In Table 4, I report the total amount of ascertainable value
involved in the 2006 and 2007 settlements. This amount includes all
determinate52 payments in cash or cash equivalents (such as marketable
securities), including attorneys’ fees and expenses, as well as any in-kind
relief (such as coupons) or injunctive relief that was valued by the district
court.53 I did not attempt to assign a value to any relief that was not valued
by the district court (even if it may have been valued by class counsel). It
should be noted that district courts did not often value in-kind or injunctive
relief—they did so only 18% of the time—and very little of the amounts set
forth in Table 4—only $1.3 billion, or 4%—are based on these valuations. It
should also be noted that the amounts in Table 4 reflect only what defendants
agreed to pay; they do not reflect the amounts that defendants actually paid
out after the claims administration process concluded. Prior empirical
research has found that, depending on how settlements are structured (e.g.,
whether they awarded a fixed amount of money to each class member who
eventually files a valid claim or a pro rata amount of a fixed settlement to
each class member), defendants can end up paying much less than they
agreed. 54
52
For example, I excluded awards of a fixed amount of money to each class member who
eventually filed a valid claim (as opposed to settlements that awarded a pro rata amount of a
fixed settlement to each class member) if the total amount of money set aside to pay the claims
was not set forth in the settlement documents.
53
In some cases, the district court valued the relief in the settlement over a range. In these
cases, I used the middle point in the range.
54
See HENSLER, ET AL., supra note 7, at 427-430.
17
#:41160
Table 4: The total amount of money involved in federal class action
settlements in 2006 and 2007
Subject
matter
Securities
Labor and
Employment
Consumer
Employee
Benefits
Civil Rights
Debt
Collection
Antitrust
Commercial
Other
Total
Total ascertainable monetary value in settlements (and
percentage of overall annual total)
2006
2007
(n=304)
(n=384)
$16,728
76%
$8,038
73%
$266.5
1%
$547.7
5%
$517.3
$443.8
2%
2%
$732.8
$280.8
7%
3%
$265.4
$8.9
1%
<1%
$81.7
$5.7
1%
<1%
$1,079
$1,217
$1,568
5%
6%
7%
$660.5
$124.0
$592.5
6%
1%
5%
$22,093
100%
$11,063
100%
Note: Dollar amounts are in millions. Includes all determinate payments in cash or cash
equivalents (such as marketable securities), including attorneys’ fees and expenses, as well as
any in-kind relief (such as coupons) or injunctive relief that was valued by the district court.
Table 4 shows that, in both years, around three-quarters of all the money
involved in federal class action settlements came from securities cases. Thus,
in this sense, the conventional wisdom about the dominance of securities
cases in class action litigation is correct. Figure 3 is a graphical
representation of the contribution each litigation area makes to the total
number and total amount of money involved in the 2006-2007 settlements.
18
#:41161
Figure 3: The percentage of 2006-2007 federal class action settlements
and settlement money from each subject area
Table 4 also shows that, in total, over $33 billion was approved in the
2006-2007 settlements. Over $22 billion was approved in 2006 and over $11
billion in 2007. It should be emphasized again that the totals in Table 4
understate the amount of money defendants agreed to pay in class action
settlements in 2006 and 2007 because they exclude the unascertainable value
of those settlements.
This understatement disproportionately affects
litigation areas, such as civil rights, where much of the relief is injunctive
because, as I noted, very little of such relief was valued by district courts.
Nonetheless, these numbers are, as far as I am aware, the first attempt to
calculate how much money is involved in federal class action settlements in a
given year.
The significant discrepancy between the two years is largely attributable
to the 2006 securities settlement related to the collapse of Enron, which
totaled $6.6 billion, as well as to the fact that seven of the eight 2006-2007
settlements for more than $1 billion were approved in 2006.55 Indeed, it is
55
See In re Enron Corporation Securities Litigation, MDL 1446 (S.D. Tex. May 24, 2006)
($6,600,000,000); In re Tyco International Ltd. Multidistrict Litigation, MDL 02-1335
(D.N.H. Dec. 19, 2007) ($3,200,000,000); In re AOL Time Warner, Inc. Securities and
“ERISA” Litigation, MDL 1500 (S.D.N.Y. Apr. 6, 2006) ($2,500,000,000); In re: Diet Drugs
19
#:41162
worth noting that the eight settlements for more than $1 billion accounted for
almost $18 billion of the $33 billion that changed hands over the two year
period. That is, a mere 1% of the settlements comprised over 50% of the
wealth involved in federal class action settlements in 2006 and 2007. In
order to give some sense of the distribution of settlement size in the 20062007 dataset, Table 5 sets forth the number of settlements with an
ascertainable value beyond fee, expense, and class-representative incentive
awards (605 out of the 688 settlements). Nearly two-thirds of all settlements
fell below $10 million.
Table 5: The distribution by size of 2006-2007 federal class action
settlements with ascertainable value
Settlement Size (in millions)
Number of Settlements
[$0 to $1]
131
(21.7%)
($1 to $10]
261
(43.1%)
($10 to $50]
139
(23.0%)
($50 to $100]
33
(5.45%)
($100 to $500]
31
(5.12%)
($500 to $6600]
10
(1.65%)
605
Total
Note: includes only settlements with ascertainable value beyond merely fee, expense, and
class-representative incentive awards.
Given the disproportionate influence exerted by securities settlements on
the total amount of money involved in class actions, it is unsurprising that the
average securities settlement involved more money than the average
settlement in most of the other subject areas. These numbers are provided in
Table 6, which includes, again, only the settlements with an ascertainable
value beyond fee, expense, and class-representative incentive awards. The
average settlement over the entire two-year period for all types of cases was
almost $55 million, but the median was only $5.1 million. (With the $6.6
billion Enron settlement excluded, the average settlement for all ascertainable
Products Liability Litigation, MDL 1203 (E.D. Pa. May 24, 2006) ($1,275,000,000); In re
Nortel Networks Corp. Securities Litigation (Nortel I), No.01-1855 (S.D.N.Y. Dec. 26, 2006)
($1,142,780,000); In re Royal Ahold N.V. Securities and ERISA Litigation, 03-1539 (D. Md.
Jun. 16, 2006) ($1,100,000,000); Allapattah Services Inc. v. Exxon Corp., No. 91-0986 (S.D.
Fla. Apr. 7, 2006) ($1,075,000,000); In re Nortel Networks Corp. Securities Litigation (Nortel
II), No. 05-1659 (S.D.N.Y. Dec. 26, 2006) ($1,074,270,000).
20
#:41163
cases dropped to $43.8 million, and, for securities cases, dropped to $71.0
million.) The average settlements varied widely by litigation area, with
securities and commercial settlements at the high end of around $100 million,
but the median settlements for nearly every area were bunched around a few
million dollars. It should be noted that the high average for commercial
cases is largely due to one settlement above $1 billion;56 when that settlement
is removed, the average for commercial cases was only $24.2 million.
Table 6: The average and median settlement amounts in the 2006-2007
federal class action settlements with ascertainable value to the class
Subject matter
Average
Median
Securities (n=257)
(n=88)
Consumer (n=65)
Employee Benefits (n=52)
Civil Rights (n=34)
Debt Collection (n=40)
Antitrust (n=29)
Commercial (n=12)
Other (n=28)
$96.4
$8.0
$9.2
$18.8
$13.9
$9.7
$0.37
$60.0
$111.7
$76.6
$1.8
$2.9
$5.3
$2.5
$0.088
$22.0
$7.1
$6.2
All (n=605)
$54.7
$5.1
Note: Dollar amounts are in millions. Includes only settlements with ascertainable value
beyond merely fee, expense, and class-representative incentive awards.
Table 6 permits comparison with the two prior empirical studies of class
action settlements that sought to include non-securities as well as securities
cases in their purview. The Eisenberg-Miller study through 2002, which
included both common-fund and fee-shifting cases, found that the mean class
action settlement was $112 million and the median was $12.9 million, both in
2006 dollars,57 more than double the average and median I found for all
settlements in 2006 and 2007. The Eisenberg-Miller update through 2008
included only common-fund cases and found mean and median settlements in
federal court of $115 million and $11.7 million (both again in 2006 dollars),58
respectively; this is still more than double the average and median I found.
This suggests that the methodology used by the Eisenberg-Miller studies—
56
See Allapattah Services Inc. v. Exxon Corp., No. 91-0986 (S.D. Fla. Apr. 7, 2006)
(approving $1,075,000,000 settlement).
57
58
21
#:41164
looking at district court opinions that were published in Westlaw or Lexis—
oversampled larger class actions (because opinions approving larger class
actions are, presumably, more likely to be published than opinions approving
smaller ones). It is also possible that the exclusion of fee-shifting cases from
their data through 2008 contributed to this skew, although, given that their
data through 2002 included fee-shifting cases and found an almost identical
mean and median as their data through 2008, the primary explanation for the
much larger mean and median in their study through 2008 is probably their
reliance on published opinions. Over the same years examined by Professors
Eisenberg and Miller, the Class Action Reports study found a smaller
average settlement than I did ($39.5 million in 2006 dollars), but a larger
median ($8.48 million in 2006 dollars). It is possible that the Class Action
Reports methodology also oversampled larger class actions, explaining its
larger median, but that there are more “mega” class actions today than there
were before 2003, explaining its smaller mean.59
It is interesting to ask how significant the $16 billion that was involved
annually in these 350 or so federal class action settlements is in the grand
scheme of American litigation. Unfortunately, we do not know how much
money is transferred every year in American litigation. The only studies of
which I am aware that attempt even a partial answer to this question are the
estimates of how much money is transferred in the American “tort” system
every year by a financial services consulting firm, Tillinghast-Towers
Perrin.60 These studies are not directly comparable to the class action
settlement numbers because, again, the number of tort class action
settlements in 2006 and 2007 was very small. Nonetheless, as the tort system
no doubt constitutes a large percentage of the money transferred in all
litigation, these studies provide something of a point of reference to assess
the significance of class action settlements. In 2006 and 2007, TillinghastTowers Perrin estimated that the American tort system transferred $160
billion and $164 billion, respectively, to claimants and their lawyers.61 The
total amount of money involved in the 2006 and 2007 federal class action
settlements reported in Table 4 was, therefore, roughly 10% of the
59
There were eight class action settlements during 2006 and 2007 of more than $1 billion.
See note 55 supra.
60
Some commentators have been critical of Tillinghast’s reports, typically on the ground
that the reports overestimate the cost of the tort system. See M. Martin Boyer, Three Insights
from the Canadian D&O Insurance Market: Inertia, Information and Insiders, 14 CONN. INS.
L.J. 75, 84 (2007); John Fabian Witt, Form and Substance in the Law of Counterinsurgency
Damages, 41 LOY. L.A. L. REV. 1455, 1475 n.135 (2008). If these criticisms are valid, then
class action settlements would appear even more significant as compared to the tort system.
61
See TILLINGHAST-TOWERS PERRIN, U.S. TORT COSTS: 2008 UPDATE 5 (2008). The report
calculates $252 billion in total tort “costs” in 2007 and $246.9 billion in 2006, see id., but only
65% of those costs represent payments made to claimants and their lawyers (the remainder
represents insurance administration costs and legal costs to defendants). See TILLINGHAST TOWERS PERRIN, U.S. TORT COSTS: 2003 UPDATE 17 (2003).
22
#:41165
Tillinghast-Towers Perrin estimate. This suggests that, in merely 350 cases
every year, federal class action settlements involve the same amount of
wealth as 10% of the entire American tort system. It would seem that this is
a significant amount of money for so few cases.
IV.
Attorneys’ Fees in Federal Class Action Settlements 2006 & 2007
A. Total Amount of Fees and Expenses
As I demonstrated in Part III, federal class action settlements involved a
great deal of money in 2006 and 2007, some $16 billion a year. A perennial
concern with class action litigation is whether class action lawyers are
reaping an outsized portion of this money. 62 The 2006-2007 federal class
action data suggest that these concerns may be exaggerated. As shown in
Table 7, only 13% of the settlement amount in 2006 and 20% of the amount
in 2007 went to class action lawyers as fee and expense awards.63 The 2006
percentage is lower than the 2007 percentage in large part because the class
action lawyers in the Enron securities settlement received less than 10% of
the $6.6 billion corpus. In any event, the percentages in both 2006 and 2007
are far lower than the portions of settlements that contingency-fee lawyers
receive in individual litigation, which are usually at least 33%.64 Lawyers
received less than 33% of settlements in fees and expenses in virtually every
subject area in both years.
62
See, e.g., John C. Coffee, Jr., Commentary, Conflicts, Consent, and Allocation After
Amchem Products—Or, Why Attorneys Still Need Consent to Give Away Their Clients’
Money, 84 VA. L. REV. 1541, 1544 (1998); Christopher R. Leslie, A Market-Based Approach
to Coupon Settlements in Antitrust and Consumer Class Action Litigation, 49 UCLA L. REV.
991, 995 (2002).
63
In some of the partial settlements, see note 29 supra, the district court awarded expenses
for all the settlements at once and it was unclear what portion of the expenses was attributable
to which settlement. In these instances, I assigned each settlement a pro rata portion of
expenses. To the extent possible, all of the fee and expense numbers in this article exclude any
interest known to be awarded by the courts.
64
See, e.g., Herbert M. Kritzer, The Wages of Risk: The Returns of Contingency Fee Legal
Practice, 47 DEPAUL L. REV. 267, 284-86 (1998) (reporting results of a survey of Wisconsin
lawyers).
23
#:41166
Table 7: The total amount of fees and expenses awarded to class action
lawyers in federal class action settlements in 2006 and 2007
Subject matter
Securities
Consumer
Employee Benefits
Civil Rights
Debt Collection
Antitrust
Commercial
Other
Total
Total fees and expenses awarded in settlements
(and as percentage of total settlement amounts)
in each subject area
2006
2007
(n=292)
(n=363)
$1,899 (11%)
$1,467 (20%)
$75.1 (28%)
$144.5 (26%)
$126.4 (24%)
$65.3 (9%)
$57.1 (13%)
$71.9 (26%)
$31.0 (12%)
$32.2 (39%)
$2.5 (28%)
$1.1 (19%)
$274.6 (26%)
$157.3 (24%)
$347.3 (29%)
$18.2 (15%)
$119.3 (8%)
$103.3 (17%)
$2,932 (13%)
$2,063 (20%)
Note: Dollar amounts are in millions. Excludes settlements in which fees were not (or at
least not yet) sought (22 settlements), settlements in which fees have not yet been awarded (2
settlements), and settlements in which fees could not be ascertained due to indefinite award
amounts, missing documents, or non-public side agreements (9 settlements).
It should be noted that, in some respect, the percentages in Table 7
overstate the portion of settlements that were awarded to class action
attorneys because, again, many of these settlements involved indefinite cash
relief or non-cash relief that could not be valued. 65 If the value of all of this
relief could have been included, then the percentages in Table 7 would have
been even lower. On the other hand, as noted above, not all of the money
defendants agree to pay in class action settlements is ultimately collected by
the class.66 To the extent leftover money is returned to the defendant, the
percentages in Table 7 understate the portion class action lawyers received
relative to their clients.
B. Method of Awarding Fees
65
Indeed, the large year-to-year variation in the percentages in labor, consumer, and
employee benefits cases arose because district courts made particularly large valuations of the
equitable relief in a few settlements and used the lodestar method to calculate the fees in these
settlements (and thereby did not consider their large valuations in calculating the fees).
66
See HENSLER, ET AL., supra note 7, at 427-430.
24
#:41167
District court judges have a great deal of discretion in how they set fee
awards in class action cases. Under Rule 23, federal judges are told only that
the fees they award to class counsel must be “reasonable.”67 Courts often
exercise this discretion by choosing between two approaches: the lodestar
approach or the percentage-of-the-settlement approach.68 The lodestar
approach works much the way it does in individual litigation: the court
calculates the fee based on the number of hours class counsel actually
worked on the case multiplied by a reasonable hourly rate and a discretionary
multiplier.69 The percentage-of-the-settlement approach bases the fee on the
size of the settlement rather than the hours class counsel actually worked: the
district court picks a percentage of the settlement that it thinks is reasonable
based on a number of factors, one of which is often the fee lodestar
(sometimes referred to as a “lodestar cross check”).70 My 2006-2007 dataset
shows that the percentage-of-the-settlement approach has become much more
common than the lodestar approach. In 69% of the settlements reported in
Table 7, district court judges employed the percentage-of-the-settlement
method with or without the lodestar cross check. They employed the lodestar
method in only 12% of settlements. In the other 20% of settlements, the
court did not state the method it used or it used another method altogether. 71
The pure lodestar method was used most often in consumer (29%) and debt
collection (45%) cases. These numbers are fairly consistent with the
Eisenberg-Miller data from 2003 to 2008. They found that the lodestar
method was used in only 9.6% of settlements.72 Their number is no doubt
lower than the 12% number found in the 2006-2007 dataset because they
excluded fee-shifting cases from their study.
67
FED. R. CIV. P. 23(h).
68
The discretion to pick between these methods is most pronounced in settlements where
the underlying claim was not found in a statute that would shift attorney’s fees to the
defendant, see, e.g., In re Thirteen Appeals Arising out of the San Juan DuPont Plaza Hotel
Fire Litig., 56 F.3d 295, 307 (1st. Cir. 1995) (permitting either percentage or lodestar method
in common fund cases); Goldberger v. Integrated Res. Inc., 209 F.3d 43, 50 (2d Cir. 2000)
(same); Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 516 (6th Cir. 1993) (same). By
contrast, courts typically used the lodestar approach in settlements arising from fee-shifting
cases.
69
70
See id. at 31-32.
71
These numbers are based on the fee method described in the district court’s order
awarding fees, unless the order was silent, in which case the method, if any, described in class
counsel’s motion for fees (if it could be obtained) was used. If the court explicitly justified the
fee award by reference to its percentage of the settlement, I counted it as the percentage
method. If the court explicitly justified the award by reference to a lodestar calculation, I
counted it as the lodestar method. If the court explicitly justified the award by reference to
both, I counted it as the percentage method with a lodestar cross check. If the court calculated
neither a percentage nor the fee lodestar in its order, then I counted it as an “other” method.
72
25
#:41168
C. Variation in Fees Awarded
Not only do district courts often have discretion to choose between the
lodestar method and the percentage-of-the-settlement method, but each of
these methods leaves district courts with a great deal of discretion in how the
method is ultimately applied. The courts that use the percentage-of-thesettlement method usually rely upon a multi-factor test,73 and, like most
multifactor tests, it can plausibly yield almost any result. It is true that in
many of these cases, judges examine the fee percentages that other courts
have awarded to guide their discretion.74 In addition, the Ninth Circuit has
adopted a presumption that 25% is the proper fee award percentage in class
action cases. 75 Moreover, in securities cases, some courts presume that the
proper fee award percentage is the one class counsel agreed to when it was
hired by the large shareholder that is now usually selected as the lead plaintiff
in such cases. 76 Nonetheless, presumptions, of course, can be overcome, and,
as one court has put it, “[t]here is no hard and fast rule mandating a certain
percentage . . . which may reasonably be awarded as a fee because the
amount of any fee must be determined upon the facts of each case.”77 The
court added: “[i]ndividualization in the exercise of a discretionary power [for
fee awards] will alone retain equity as a living system and save it from
sterility.”78 It is therefore not surprising that district courts awarded fees over
a broad range when they used the percentage-of-the-settlement method.
Figure 4 is a graph of the distribution of fee awards as a percentage of the
settlement in the 444 cases where district courts used the percentage method
with or without a lodestar cross check and the fee percentages were
ascertainable. These fee awards are exclusive of awards for expenses
whenever the awards could be separated by examining either the district
73
The Eleventh Circuit, for example, has identified a non-exclusive list of 15 factors that
district courts might consider. See Camden I Condominium Ass'n, Inc. v. Dunkle, 946 F.2d
768, 772 n.3, 775 (11th Cir. 1991). See also In re Tyco Int’l, Ltd. Multidistrict Litig., 535 F.
Supp. 2d 249, 265 (D.N.H. 2007) (five factors); Goldberger v. Integrated Res. Inc., 209 F.3d
43, 50 (2d Cir. 2000) (six factors); Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n. 1
(3d Cir. 2000) (seven factors); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F. Supp. 2d
383, 385 (D. Md. 2006) (thirteen factors); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454
(10th Cir. 1988) (twelve factors); In re Baan Co. Sec. Litig., 288 F. Supp. 2d 14, 17 (D.D.C.
2003) (seven factors).
74
75
See Staton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003).
76
See, e.g., In re Cendant Corp. Litigation, 264 F.3d 201, 282 (3d Cir. 2001).
77
Camden I Condominium Ass'n, 946 F.2d at 774.
78
Camden I Condominium Ass'n, 946 F.2d at 774 (alterations in original and internal
quotation marks omitted).
26
#:41169
court’s order or counsel’s motion for fees and expenses (which was 96% of
the time). The awards ranged from 3% of the settlement to 47% of the
settlement. The average award was 25.4% and the median was 25%. Most
fee awards were between 25% and 35%, with almost no awards more than
35%. The Eisenberg-Miller study through 2008 found a slightly lower mean
(24%) but the same median (25%) among its federal court settlements.79
0
.1
Fraction of settlements
.2
.3
.4
Figure 4: The distribution of 2006-2007 federal class action fee awards
using the percentage-of-the-settlement method with or without lodestar
crosscheck
0
10
20
30
40
Percentage of settlement awarded in fees
50
It should be noted that in 218 of these 444 settlements (49%), district
courts said they considered the lodestar calculation as a factor in assessing
the reasonableness of the fee percentages awarded. In 204 of these
settlements, the lodestar multiplier resulting from the fee award could be
ascertained. The lodestar multiplier in these cases ranged from .07 to 10.3,
with a mean of 1.65 and a median of 1.34. Although there is always the
possibility that class counsel are optimistic with their time sheets when they
submit them for lodestar consideration, these lodestar numbers—only one
multiplier above 6.0, with the bulk of the range not much above 1.0—strike
me as fairly parsimonious for the risk that goes into any piece of litigation
79
27
#:41170
and cast doubt on the notion that the percentage-of-the-settlement method
results in windfalls to class counsel.80
Table 8 shows the mean and median fee percentages awarded in each
litigation subject area. The fee percentages did not appear to vary greatly
across litigation subject areas, with most mean and median awards between
25% and 30%. As I report later in this Part, however, after controlling for
other variables, there were statistically significant differences in the fee
percentages awarded in some subject areas compared to others. The mean
and median percentages for securities cases were 24.7% and 25.0%,
respectively; for all non-securities cases, the mean and median were 26.1%
and 26.0%, respectively. The Eisenberg-Miller study through 2008 found
mean awards ranging from 21-27% and medians from 19-25%,81 a bit lower
than the ranges in my 2006-2007 dataset, which again, may be because they
oversampled larger settlements (as I show below, district courts awarded
smaller fee percentages in larger cases).
80
It should be emphasized, of course, that these 204 settlements may not be representative
of the settlements where the percentage-of-the-settlement method was used without the
lodestar crosscheck.
81
28
#:41171
Table 8: Fee awards in 2006-2007 federal class action settlements using
the percentage-of-the settlement method with or without lodestar
crosscheck
Subject matter
Percentage of settlement
awarded as fees
Mean
Median
24.7%
25.0%
Securities
(n=233)
(n=61)
Consumer
(n=39)
Employee Benefits
(n=37)
Civil Rights
(n=20)
Debt Collection
(n=5)
Antitrust
(n=23)
Commercial
(n=7)
Other
(n=19)
All
(n=444)
28.0%
29.0%
23.5%
24.6%
26.0%
28.0%
29.0%
30.3%
24.2%
25.0%
25.4%
25.0%
23.3%
25.0%
24.9%
26.0%
25.7%
25.0%
In light of the fact that, as I noted above, the distribution of class action
settlements among the geographic circuits does not track their civil litigation
dockets generally, it is interesting to ask whether one reason for the pattern in
class action cases is that circuits oversubscribed with class actions award
higher fee percentages. Although this question will be taken up with more
sophistication in the regression analysis below, it is worth describing here the
mean and median fee percentages in each of the circuits. Those data are
presented in Table 9. Contrary to the hypothesis set forth in Part III, two of
the circuits most oversubscribed with class actions, the Second and the Ninth,
were the only circuits in which the mean fee awards were under 25%. As I
explain below, these differences are statistically significant and remain so
after controlling for other variables.
29
#:41172
Table 9: Fee awards in 2006-2007 federal class action settlements using
the percentage-of-the settlement method with or without lodestar
crosscheck
Circuit
First
(n=27)
Second
(n=72)
Third
(n=50)
Fourth
(n=19)
Fifth
(n=27)
Sixth
(n=25)
Seventh
(n=39)
Eighth
(n=15)
Ninth
(n=111)
Tenth
(n=18)
Eleventh
(n=35)
DC
(n=6)
Percentage of settlement awarded as fees
Mean
Median
27.0%
25.0%
23.8%
24.5%
25.4%
29.3%
25.2%
28.0%
26.4%
29.0%
26.1%
28.0%
27.4%
29.0%
26.1%
30.0%
23.9%
25.0%
25.3%
25.5%
28.1%
30.0%
26.9%
26.0%
The lodestar method likewise permits district courts to exercise a great
deal of leeway through the application of the discretionary multiplier. Figure
5 shows the distribution of lodestar multipliers in the 71 settlements in which
district courts used the lodestar method and the multiplier could be
ascertained. The average multiplier was .98 and the median was .92, which
suggests that courts were not terribly prone to exercise their discretion to
deviate from the amount of money encompassed in the lodestar calculation.
These 71 settlements were heavily concentrated within the consumer (median
multiplier 1.13) and debt collection (.66) subject areas. If cases in which
district courts used the percentage-of-the-settlement method with a lodestar
cross check are combined with the lodestar cases, the average and median
multipliers (in the 263 cases where the multipliers were ascertainable) were
1.45 and 1.19, respectively. Again—putting to one side the possibility that
30
#:41173
class counsel are optimistic with their time sheets—these multipliers appear
fairly modest in light of the risk involved in any piece of litigation.
0
Fraction of settlements
.1
.2
.3
Figure 5: The distribution of lodestar multipliers in 2006-2007 federal
class action fee awards using the lodestar method
0
.5
1
1.5
2
2.5
Multiplier
D. Factors Influencing Percentage Awards
Whether district courts are exercising their discretion over fee awards
wisely is an important public policy question given the amount of money at
stake in class action settlements. As shown above, district court judges
awarded class action lawyers nearly $5 billion in fees and expenses in 20062007. Based on the comparison to the tort system set forth in Part III, it is
not difficult to surmise that, in the 350 or so settlements every year, district
court judges are awarding a significant portion of all of the annual
compensation received by contingency-fee lawyers in the United States.
Contingency fees are arguably the engine that drives much of the noncriminal regulation in America; unlike many other nations, we regulate
largely through the ex post, decentralized device of litigation.82 To the extent
district courts could have exercised their discretion to award billions more or
82
See, e.g., Samuel Issacharoff, Regulating after the Fact, 56 DEPAUL L. REV. 375, 377
(2007).
31
#:41174
billions less to class action lawyers, district courts have been delegated a
great deal of leeway over a big chunk of our regulatory horsepower. It is
therefore worth examining how district courts exercise their discretion over
fees. This examination is particularly important in cases where district courts
use the percentage-of-the-settlement method to award fees: not only do such
cases comprise the vast majority of settlements, but they comprise the vast
majority of the money awarded as fees. As such, the analysis that follows
will be confined to the 444 settlements where the district courts used the
percentage-of-the-settlement method.
As I noted, prior empirical studies have shown that fee percentages are
strongly and inversely related to the size of the settlement both in securities
fraud and other cases. As shown in Figure 6, the 2006-2007 data are
consistent with prior studies. Regression analysis, set forth in more detail
below, confirms that, after controlling for other variables, fee percentage is
strongly and inversely associated with settlement size among all cases,
among securities cases, and among all non-securities cases.
0
10
Fee Percentage
20
30
40
50
Figure 6: Fee awards as a function of settlement size in 2006-2007 class
action cases using the percentage-of-the-settlement method with or
without lodestar crosscheck
10
15
20
Settlement amount (natural log)
25
As noted above, courts often look to fee percentages in other cases as one
factor they consider in deciding what percentage to award in a settlement at
hand. In light of this practice, and, in light of the fact that the size of the
32
#:41175
settlement has such a strong relationship to fee percentages, scholars have
tried to help guide the practice by reporting the distribution of fee
percentages across different settlement sizes.83 In Table 10, I follow the
Eisenberg-Miller studies and attempt to contribute to this guidance by setting
forth the mean and median fee percentages, as well as the standard deviation,
for each decile of the 2006-2007 settlements in which courts used the
percentage-of-the-settlement method to award fees. The mean percentages
ranged from over 28% in the first decile to less than 19% in the last decile.
Table 10: Mean, median, and standard deviation of fee awards by
settlement size in 2006-2007 federal class action settlements using the
percentage-of-the settlement method with or without lodestar crosscheck
Settlement Size
Mean
Median
Standard
(in millions)
Deviation
[$0 to $0.75]
28.8%
29.6%
6.1%
(n = 45)
($0.75 to $1.75]
28.7%
30.0%
6.2%
(n=44)
($1.75 to $2.85]
26.5%
29.3%
7.9%
(n = 45)
($2.85 to $4.45]
26.0%
27.5%
6.3%
(n = 45)
($4.45 to $7.0]
27.4%
29.7%
5.1%
(n = 44)
($7.0 to $10.0]
26.4%
28.0%
6.6%
(n = 43)
($10.0 to $15.2]
24.8%
25.0%
6.4%
(n = 45)
($15.2 to $30.0]
24.4%
25.0%
7.5%
(n = 46)
($30.0 to $72.5]
22.3%
24.9%
8.4%
(n = 42)
($72.5 to $6600]
18.4%
19.0%
7.9%
(n = 45)
It should be noted that the last decile in Table 10 covers an especially
wide range of settlements, those from $72.5 million to the Enron settlement
of $6.6 billion. In order to give more meaningful data to courts that must
award fees in the largest settlements, Table 11 shows the last decile broken
into additional cut points. When both Tables 10 and 11 are examined
together, it appears that fee percentages tended to drift lower at a fairly slow
83
33
#:41176
pace until a settlement size of $100 million was reached, at which point the
fee percentages plunged well below 20%, and by the time $500 million was
reached, they plunged well below 15%, with most awards at that level under
even 10%.
Table 11: Mean, median, and standard deviation of fee awards of the
largest 2006-2007 federal class action settlements using the percentageof-the settlement method with or without lodestar crosscheck
Settlement Size
Mean
Median
Standard
(in millions)
Deviation
($72.5 to $100]
23.7%
24.3%
5.3%
(n = 12)
($100 to $250]
17.9%
16.9%
5.2%
(n=14)
($250 to $500]
17.8%
19.5%
7.9%
(n = 8)
($500 to $1000]
12.9%
12.9%
7.2%
(n = 2)
($1000 to $6600]
13.7%
9.5%
11%
(n = 9)
Prior empirical studies have not examined whether fee awards are
associated with the political affiliation of the district court judges making the
awards. This is surprising because Realist theories of judicial behavior
would predict that political affiliation would influence fee decisions.84 It is
true that, as a general matter, political affiliation may influence district court
judges to a lesser degree than it does appellate judges (who have been the
focus of most of the prior empirical studies of Realist theories): district court
judges decide more routine cases and are subject to greater oversight on
appeal than appellate judges. On the other hand, class action settlements are
a bit different in these regards than many other decisions made by district
court judges. To begin with, class action settlements are almost never
appealed, and when they are, the appeals are usually settled before the
appellate court hears the case. 85 Thus, district courts have much less reason
to worry about the constraint of appellate review in fashioning fee awards.
Moreover, one would think the potential for political affiliation to influence
84
See generally C. K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL
DISTRICT COURTS (1996). See also Max M. Schanzenbach & Emerson H. Tiller, Reviewing
the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U. Chi. L.
Rev. 715, 724-25 (2008).
85
See Brian T. Fitzpatrick, The End of Objector Blackmail?, 62 Vand. L. Rev. 1623, 1640,
1634-38 (2009) (finding that less than 10% of class action settlements approved by federal
courts in 2006 were appealed by class members).
34
#:41177
judicial decisionmaking is greatest when legal sources lead to indeterminate
outcomes and when judicial decisions touch upon matters that are salient in
national politics. (The more salient a matter is, the more likely Presidents
will select judges with views on the matter and the more likely those views
will diverge between Republicans and Democrats.) Fee award decisions
would seem to satisfy both of these criteria. The law of fee awards, as
explained above, is highly discretionary, and fee award decisions are
wrapped up in highly salient political issues such as tort reform and the
relative power of plaintiffs’ lawyers and corporations. I would expect to find
that judges appointed by Democratic presidents awarded higher fees in the
2006-2007 settlements than did judges appointed by Republican presidents.
The data, however, do not appear to bear this out. Of the 444 fee awards
using the percentage-of-the-settlement approach, 52% were approved by
Republican appointees, 45% were approved by Democratic appointees, and
4% were approved by non-Article III judges (usually magistrate judges). The
mean fee percentage approved by Republican appointees (25.6%) was
slightly greater than the mean approved by Democratic appointees (24.9%).
The medians (25%) were the same.
In order to examine whether the Realist hypothesis fared better after
controlling for other variables, I performed regression analysis of the fee
percentage data for the 427 settlements approved by Article III judges. I
used ordinary least squares regression with the dependent variable the
percentage of the settlement that was awarded in fees.86 The independent
variables were the natural log of the amount of the settlement, the natural log
of the age of the case (in days), indicator variables for whether the class was
certified as a settlement class, for litigation subject areas, and for circuits, as
well as indicator variables for whether the judge was appointed by a
Republican or Democratic President and for the judge’s race and gender.87
The results for five regressions are in Table 12. In the first regression
(column 1), only the settlement amount, case age, and judge’s political
affiliation, gender, and race were included as independent variables. In the
second regression (column 2), all of the independent variables were included.
86
Professors Eisenberg and Miller used a square root transformation of the fee percentages
in some of their regressions. I ran all of the regressions using this transformation as well and it
did not appreciably change the results. I also ran the regressions using a natural log
transformation of fee percentage and with the dependent variable natural log of the fee amount
(as opposed to the fee percentage). None of these models changed the results appreciably.
The regressions were also run with and without the 2006 Enron settlement because it was such
an outlier ($6.6 billion); the case did not change the regression results appreciably. For every
regression, the data and residuals were inspected to confirm the standard assumptions of
linearity, homoscedasticity, and the normal distribution of errors.
87
Prior studies of judicial behavior have found that the race and sex of the judge can be
associated with their decisions. See, e.g., Adam B. Cox & Thomas J. Miles, Judging the
Voting Rights Act, 108 COLUM. L. REV. 1 (2008) Donald R. Songer et al., A Reappraisal of
Diversification in the Federal Courts: Gender Effects in the Courts of Appeals, 56 J. POL. 425
(1994).
35
#:41178
In the third regression (column 3), only securities cases were analyzed, and,
in the fourth regression (column 4), only non-securities cases were analyzed.
In none of these regressions was the political affiliation of the district
court judge associated with fee percentage in a statistically significant
manner.88 One possible explanation for the lack of evidence for the Realist
hypothesis is that district court judges elevate other preferences above their
political and ideological ones. For example, district courts of both political
stripes may succumb to docket-clearing pressures and largely rubber stamp
whatever fee is requested by class counsel; after all, these requests are rarely
challenged by defendants. Moreover, if judges award class counsel whatever
they request, class counsel will not appeal, and, given that, as noted above,
class members rarely appeal settlements (and when they do, often settle them
before the appeal is heard), 89 judges can thereby virtually guarantee there will
be no appellate review of their settlement decisions. Indeed, scholars have
found that, in the vast majority of cases, the fees ultimately awarded by
federal judges are little different than those sought by class counsel. 90
Another explanation for the lack of evidence for the Realist hypothesis is
that my dataset includes both unpublished as well as published decisions. It
is thought that Realist theories of judicial behavior lose force in unpublished
judicial decisions. This is the case because the kinds of questions for which
Realist theories would predict that judges have the most room to let their
ideologies run are questions for which the law is ambiguous; it is thought that
these kinds of questions are more often answered in published opinions. 91
Indeed, most of the studies finding an association between ideological beliefs
and case outcomes were based on datasets that included only published
opinions.92 On the other hand, there are a small but growing number of
studies that have examined unpublished opinions as well, and some of these
studies have shown that ideological effects persisted. 93 Nonetheless, in light
88
Although these coefficients are not reported in Table 8, the gender of the district court
judge was never statistically significant. The race of the judge was only occasionally
significant.
89
See Fitzpatrick, supra note 85, at 1640.
90
See Eisenberg & Miller II, supra note 16, at 270 (finding that state and federal judges
awarded the fees requested by class counsel in 72.5% of settlements); Eisenberg, Miller &
Perino, supra note 9, at 22 (“[J]udges take a light touch when it comes to reviewing fee
requests.”).
91
See, e.g., Ahmed E. Taha, Data and Selection Bias: A Case Study, 75 UMKC L. REV.
171, 179 (2006).
92
See id. at 178-79.
93
See, e.g., David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and
Asylum Law in the Ninth Circuit, 73 U. CIN. L. REV. 817, 843 (2005); Deborah Jones Merritt &
James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts
of Appeals, 54 VAND. L. REV. 71, 109 (2001); Donald R. Songer, Criteria for Publication of
Opinions in the U.S. Courts of Appeals: Formal Rules Versus Empirical Reality, 73
JUDICATURE 307, 312 (1990). At the trial court level, however, the studies of civil cases have
36
#:41179
of the discretion that judges exercise with respect to fee-award decisions, it
hard to characterize any decision in this area as “unambiguous.” Thus, even
when unpublished, I would have expected the fee award decisions to exhibit
an association with ideological beliefs. Thus, I am more persuaded by the
explanation suggesting that judges are more concerned with clearing their
dockets or insulating their decisions from appeal in these cases than with
furthering their ideological beliefs.
In all of the regressions, the size of the settlement was strongly and
inversely associated with fee percentages. Whether the case was certified as
a settlement class was not associated with fee percentages in any of the
regressions. The age of the case at settlement was associated with fee
percentages in the first two regressions, and when the settlement class
variable was removed in regressions three and four, the age variable became
positively associated with fee percentages in non-securities cases but
remained insignificant in securities cases. Professors Eisenberg and Miller
likewise found that the age of the case at settlement was positively associated
with fee percentages in their 1993-2002 dataset,94 and that settlement classes
were not associated with fee percentages in their 2003-2008 dataset.95
Although the structure of these regressions did not permit extensive
comparisons of fee awards across different litigation subject areas, fee
percentages appeared to vary somewhat depending on the type of case that
settled. Securities cases were used as the baseline litigation subject area in
the second and fifth regressions, permitting a comparison of fee awards in
each non-securities area with the awards in securities cases. These
regressions show that awards in a few areas, including labor/employment and
antitrust, were more lucrative than those in securities cases. In the fourth
regression, which included only non-securities cases, labor and employment
cases were used as the baseline litigation subject area, permitting comparison
between fee percentages in that area and the other non-securities areas. This
regression shows that fee percentages in several areas, including consumer
and employee benefits cases, were lower than the percentages in labor and
employment cases.
In the fifth regression (column 5), I attempted to discern whether the
circuits identified in Part III as those with the most overrepresented (the First,
found no ideological effects. See Laura Beth Nielsen, Robert L. Nelson, & Ryon Lancaster,
Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in
the Post Civil Rights United States, 7 J. EMPIRICAL L. STUD. 175, 192-93 (2010); Denise M.
Keele et al., An Analysis of Ideological Effects in Published versus Unpublished Judicial
Opinions, 6 J. EMPIRICAL L. STUDIES 213, 230 (2009); Orley Ashenfelter, Theodore Eisenberg,
& Stewart J. Schwab, Politics and the Judiciary: The Influence of Judicial Background on
Case Outcomes, 24 J. LEGAL STUD. 257, 276-77 (1995). With respect to criminal cases, there
is at least one study at the trial court level that has found ideological effects. See
Schanzenbach & Tiller, supra note 84, at 734.
94
95
37
#:41180
Second, Seventh, and Ninth) and underrepresented (the Fifth and Eighth)
class action dockets awarded attorneys’ fees differently than the other
circuits. That is, perhaps district court judges in the First, Second, Seventh,
and Ninth Circuits award greater percentages of class action settlements as
fees than do the other circuits, whereas district court judges in the Fifth and
Eighth Circuits award smaller percentages. In order to test this hypothesis, in
the fifth regression, I included indicator variables only for the six circuits
with unusual dockets to measure their fee awards against the other six
circuits combined. The regression showed statistically significant association
with fee percentages for only two of the six unusual circuits: the Second and
Ninth Circuits. In both cases, however, the direction of the association (i.e.,
the Second and Ninth Circuits awarded smaller fees than the baseline
circuits) was opposite the hypothesized direction.96
The lack of the expected association with the unusual circuits might be
explained by the fact that class action lawyers forum shop along dimensions
other than their potential fee awards; they might, for example, put more
emphasis on favorable class-certification law because there can be no fee
award if the class is not certified. As noted above, it might also be the case
that class action lawyers are unable to engage in forum shopping at all
because defendants are able to transfer venue to the district in which they are
headquartered or another district with a significant connection to the
litigation.
It is unclear why the Second and Ninth Circuits were associated with
lower fee awards despite their heavy class action dockets. Indeed, it should
be noted that the Ninth Circuit was the baseline circuit in the second, third,
and fourth regressions, and, in all of these regressions, district courts in the
Ninth Circuit awarded smaller fees than courts in many of the other circuits.
The lower fees in the Ninth Circuit may be attributable to the fact that it has
adopted a presumption that the proper fee to be awarded in a class action
settlement is 25% of the settlement.97 This presumption may make it more
difficult for district court judges to award larger fee percentages. The lower
awards in the Second Circuit are more difficult to explain, but it should be
noted that the difference between the Second Circuit and the baseline circuits
went away when the fifth regression was re-run with only non-securities
96
This relationship persisted when the regressions were re-run among the securities and
non-securities cases separately. I do not report these results, but, even though the First,
Second, and Ninth Circuits were oversubscribed with securities class action settlements and
the Fifth, Sixth, and Eighth were undersubscribed, there was no association between fee
percentages and any of these unusual circuits except, again, the inverse association with the
Second and Ninth Circuits. In non-securities cases, even though the Seventh and Ninth
Circuits were oversubscribed and the Fifth and the Eighth undersubscribed, there was no
association between fee percentages and any of these unusual circuits except again for the
inverse association with the Ninth Circuit.
97
See note 75 supra. It should be noted that none of the results from the previous
regressions were affected when the Ninth Circuit settlements were excluded from the data.
38
#:41181
cases.98 This suggests that the awards in the Second Circuit may be lower
only in securities cases. In any event, it should be noted that the lower fee
awards from the Second and Ninth Circuits contrast with the findings in the
Eisenberg-Miller studies which found no inter-circuit differences in fee
awards in common-fund cases in their data through 2008.99
98
The Ninth Circuit’s differences persisted.
99
39
#:41182
Table 12: Regression of fee percentages in 2006-2007 settlements using
percentage-of-the-settlement method with or without lodestar crosscheck
Independent variable
Settlement amount
(natural log)
Age of case (natural log
days)
Judge’s political affiliation
(1 = Democrat)
Settlement class
1st Circuit
2d Circuit
3d Circuit
4th Circuit
5th Circuit
6th Circuit
7th Circuit
8th Circuit
9th Circuit
(1)
-1.77
(-5.43)**
1.66
(2.31)**
-0.630
(-0.83)
Regression coefficients (and robust t-statistics)
(2)
(3)
(4)
-1.76
-1.76
-1.41
(-8.52)**
(-7.16)**
(-4.00)**
1.99
1.13
1.72
(2.71)**
(1.21)
(1.47)
-0.345
0.657
-1.43
(-0.49)
(0.76)
(-1.20)
.150
.873
-1.62
(0.19)
(0.84)
(-1.00)
3.30
4.41
0.031
(2.74)**
(3.32)**
(0.01)
0.513
-0.813
2.93
(0.44)
(-0.61)
(1.14)
2.25
4.00
-1.11
(1.99)**
(3.85)**
(-0.50)
2.34
0.544
3.81
(1.22)
(0.19)
(1.35)
2.98
1.09
6.11
(1.90)*
(0.65)
(1.97)**
2.91
0.838
4.41
(2.28)**
(0.57)
(2.15)**
2.55
3.22
2.90
(2.23)**
(2.36)**
(1.46)
2.12
-0.759
3.73
(0.97)
(-0.24)
(1.19)
----
10th Circuit
(5)
-1.78
(-8.67)**
2.00
(2.69)**
-0.232
(-0.34)
.124
(0.15)
0.579
(0.51)
-2.23
(-1.98)**
--0.230
(0.15)
--0.227
(-0.20)
-0.586
(-0.28)
-2.73
(-3.44)**
--
1.45
-0.254
3.16
(0.94)
(-0.13)
(1.29)
4.05
3.85
4.14
-11 Circuit
(3.44)**
(3.07)**
(1.88)*
2.76
2.60
2.41
-DC Circuit
(1.10)
(0.80)
(0.64)
--Securities case
2.93
-2.85
Labor and employment
(3.00)**
(2.94)**
case
-1.65
-4.39
-1.62
Consumer case
(-0.88)
(-2.20)**
(-0.88)
-0.306
-4.23
-0.325
Employee benefits case
(-0.23)
(-2.55)**
(-0.26)
1.85
-2.05
1.76
Civil rights case
(0.99)
(-0.97)
(0.95)
-4.93
-7.93
-5.04
Debt collection case
(-1.71)*
(-2.49)**
(-1.75)*
3.06
0.937
2.78
Antitrust case
(2.11)**
(0.47)
(1.98)**
-0.028
-2.65
0.178
Commercial case
(-0.01)
(-0.73)
(0.05)
-0.340
-3.73
-0.221
Other case
(-0.17)
(-1.65)
(-0.11)
42.1
37.2
43.0
38.2
40.1
Constant
(7.29)**
(6.08)**
(6.72)**
(4.14)**
(7.62)**
427
427
232
195
427
N
.20
.26
.37
.26
.26
R2
6.59
6.50
5.63
7.24
6.48
Root MSE
Note: ** significant at the 5% level; * significant at the 10% level. Standard errors in column 1 were
clustered by circuit. Indicator variables for race and gender were included in each regression but not
th
40
#:41183
reported.
Sources: Westlaw, PACER, district court clerks’ offices, Federal Judicial Center.
V.
Conclusion
This article has attempted to fill some of the gaps in our knowledge about
class action litigation by reporting the results of an empirical study that
attempted to collect all class action settlements approved by federal judges in
2006 and 2007. District court judges approved 688 class action settlements
over this two-year period, involving more than $33 billion. Of this $33
billion, nearly $5 billion was awarded to class action lawyers, or about 15%
of the total. District courts typically awarded fees using the highly
discretionary percentage-of-the-settlement method, and fee awards varied
over a wide range under this method, with a mean and median around 25%.
Fee awards using this method were strongly and inversely associated with the
size of the settlement. Fee percentages were positively associated with the
age of the case at settlement. Fee percentages were not associated with
whether the class action was certified as a settlement class or with the
political affiliation of the judge who made the award. Finally, there appeared
to be some variation in fee percentages depending on subject matter of the
litigation and the geographic circuit in which the district court was located.
Fee percentages in securities cases were lower than the percentages in some
but not all of the other litigation areas, and district courts in the Ninth Circuit
and in the Second Circuit (in securities cases) awarded lower fee percentages
than district courts in several other circuits. The lower awards in the Ninth
Circuit may be attributable to the fact that it is the only circuit that has
adopted a presumptive fee percentage of 25%.
41
#:41184
Exhibit C
2:07-cv-05295-MRP -MAN Document 990-3
#:41185
Filed 10/11/10 Page 2 of 35 Pa
Journal of Empirical Legal Studies
Volume 7, Issue 2, 248–281, June 2010
Attorney Fees and Expenses in Class
Action Settlements: 1993–2008
jels_1178
248..281
Theodore Eisenberg and Geoffrey P. Miller*
We report on a comprehensive database of 18 years of available opinions (1993–2008,
inclusive) on settlements in class action and shareholder derivative cases in state and federal
courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between
attorney fees and class recovery size: regardless of the methodology for calculating fees
ostensibly employed by the courts, the class recovery size was the overwhelmingly important
determinant of the fee. The present study, which nearly doubles the number of cases in the
database, confirms that relationship. Fees display the same relationship to class recoveries in
both data sets and neither fees nor recoveries materially increased over time. Although the
size of the class recovery dwarfs other influences, significant associations exist between the
fee amount and both the fee method used and the riskiness of the case. We found no robust
evidence of significant differences between federal and state courts. The strong association
between fee and class recovery persists in cases with recoveries of $100 million or more, as
do the significant associations between fee level and fee method and risk. Fees were not
significantly affected by the existence of a settlement class, the presence of objectors, or opt
outs from the class. Courts granted the requested fee in over 70 percent of the cases, with the
Second Circuit granting the requested amount least often. In cases denying the requested
fee, the mean fee was 68 percent of the requested amount. Fees and costs exhibit scale effects
with the percent of each decreasing as the class recovery amount increased. Costs are
strongly associated with hours expended on the case.
I. Introduction and Background
Class actions and their close cousins, shareholder derivative lawsuits, are vital mechanisms
by which the legal system copes with mass harms—similar injuries to a large number of
people. Long a feature of the U.S. landscape, class actions have recently begun to spread
across the world.1
*Address correspondence to Theodore Eisenberg, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853; email
[email protected]. Eisenberg is Henry Allen Mark Professor of Law & Adjunct Professor of
Statistical Sciences, Cornell Law School; Miller is Stuyvesant P. Comfort Professor of Law, New York University Law
School.
We have from time to time acted as expert witnesses or consultants on the issue of attorney fees in class action cases.
We thank participants at the International Conference on Empirical Legal Studies, Tel Aviv University and Kevin
Clermont for comments, and Thomas P. Eisenberg, Nicholas Germain, and Erica Miller for excellent research
assistance.
1
See, e.g., Samuel Issacharoff & Geoffrey Miller, Will Aggregate Litigation Come to Europe? 62 Vanderbilt L. Rev. 179
(2009).
248
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Attorney Fees and Expenses in Class Action Settlements
249
A crucial issue for all class and derivative litigation is the matter of compensating
counsel. Unless class counsel are adequately compensated, class and derivative litigation
will be undersupplied in the legal market. On the other hand, if class action attorneys are
overcompensated they may bring too many of these lawsuits and receive an excessive share
of the settlement value in cases that are brought.
In normal litigation the attorney compensation can be set by private agreement
between lawyer and client, but private agreement does not work in the case of class action
and derivative litigation: in these contexts there is no client capable of negotiating with the
attorney. In class actions, the clients are disorganized and, prior to notice of certification,
usually do not even know that a lawsuit has been filed on their behalf. Except perhaps
in the case of private securities litigation, the representative plaintiff cannot effectively
negotiate with the attorneys over fees and costs: he or she has only a minority stake in the
matter (in consumer cases, often a miniscule one), is often unsophisticated, and may be
strongly influenced by the attorney’s advice. In derivative cases, the ostensible client—the
corporation—is usually managed by defendants in the lawsuits and therefore is unwilling to
pay any fee to incentivize an attorney to bring the lawsuit. In both settings, therefore, the
court must independently determine the appropriate attorney fee award.
Where can the court look for information on this question? No private stakeholder is
a reliable source of information. The class attorneys’ suggested fee is not impartial since, at
the time of the settlement, their interest is to seek the largest possible award. Nor can the
court rely on the defendant’s recommendations. Settlement agreements often contain
“clear-sailing” clauses under which defendants agree not to object to a fee request up to a
certain amount. However, clear-sailing agreements are of little value when the defendant is
not paying the fee—indeed, it is not clear that the defendant has any “skin in the game”
when the fee will be paid out of the class recovery. Even when the defendant does pay the
fee—as in the typical consumer class action—the clear-sailing agreement has limited probative value unless the parties have deferred fee negotiations until after achieving a definite
agreement on the merits. Otherwise, there is reason for concern that the defendant may
have agreed to pay class counsel a premium in exchange for reductions in the amount
going to the class. The reaction of the class to the settlement and proposed fee is also not
a reliable guide. Empirical research suggests that the vast majority of class members are
rationally indifferent to class action settlements; their failure to opt out of a settlement does
not indicate approval of the proposed fee.2 Nor can the court rely on objectors to the
settlement. Few objectors appear at class action fairness hearings,3 and those who show up
may not object to the fee. Even if objectors do complain about the fee, they have only a
small amount at stake and thus lack the incentive to thoroughly research the fee question.
Lacking reliable guidance from class counsel, the defendant, class members, or
objectors, the judge has no alternative but to make an independent investigation. Where,
however, should the judge look for information pertinent to the task of setting fees? Among
2
See Theodore Eisenberg & Geoffrey Miller, The Role of Opt-Outs and Objectors in Class Action Litigation:
Theoretical and Empirical Issues, 57 Vanderbilt L. Rev. 1529 (2004).
3
Id.
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250
Eisenberg and Miller
the factors that judges typically examine in setting fees, the most important is probably that
of “awards in similar cases.”4 Precedents of fees awarded by other courts should, in theory,
be relatively reliable guides because the prior courts were presumably exercising the
requisite rigorous scrutiny and judicial independence when they set the fees, and because
class counsel will have presumably considered the relevant case law in calculating whether
to take on the litigation in the case at bar. But even this approach is not problem-free. In
the typical class action settlement, the fee is taken from the common fund generated on
behalf of the class. No party, in this case, has the right incentives to vigorously research the
precedents running contrary to counsel’s fee request. Unless the judge does his or her own
research, he or she may not have access to unbiased information about fees in similar cases.
The present empirical study is intended to assist courts in the task of fee setting—and
counsel in the task of identifying appropriate fees to request—by supplying an account of
compensation practices in courts across the country, studied over an extended period of
time, and conducted in an academic setting outside the fires of litigation. The information
provided in this article is the best data on “awards in similar cases” from cases with available
opinions. If used effectively, our study may be of material assistance in further rationalizing
the compensation of class counsel.
We find, regardless of the methodology for calculating fees ostensibly employed by
the courts, that the overwhelmingly important determinant of the fee is simply the size of
the recovery obtained by the class. Fees display the same relationship to class recoveries in
data sets spanning both 1993 to 2002 and 2003 to 2008. Neither fees nor recoveries
materially increased over time. Although the size of the class recovery dwarfs other influences, significant associations exist between the fee amount and both the fee method used
and the riskiness of the case. We found no robust evidence of significant differences
between federal and state courts. The strong association between fee and class recovery
persists in cases with recoveries of $100 million or more, as do the significant associations
between fee level and fee method and risk.
Courts granted the requested fee in over 70 percent of the cases, with courts in the
Second Circuit granting the requested amount least often. In cases in which the requested
fee was not awarded, the mean fee was 68 percent of the requested amount. Costs are
modest, with both means and median costs comprising less than 3 percent of the class
recovery. Fees and costs both exhibit scale effects, with the percent of each decreasing as
the class recovery amount increased. Costs are strongly associated with hours expended on
the case. Fees were not significantly affected by the existence of a settlement class, the
presence of objectors, or opt outs from the class.
Section II of this article describes the data gathering and coding. Section III presents
the relation between fee amount and class recovery and fee percent and class recovery over
time, and by locale (including state and federal courts), and by case category. It also explores
the relation between the fee and risk, settlement class, and the presence of opt outs and
objectors. Section IV assesses the relation between the fee and the method used to compute
4
See, e.g., Thompson v. Connick, 553 F.3d 836 (5th Cir. 2008); Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195
n.1 (3d Cir. 2000); Spell v. McDaniel, 824 F.2d 1380, 1402 n.18 (4th Cir. 1987).
#:41188
251
the fee, as well as the pattern of multipliers used in connection with lodestar fees. Section V
reports on the pattern of costs and expenses. Section VI presents multivariate results that
confirm our core findings. Section VII discusses the results and Section VIII concludes.
II. Methodology
The results reported here were gathered in two segments. The first segment covered cases
reported from 1993 to 2002 and its results are reported in previous work.5 That study also
described the motivation for the variables used in this study. The basis for believing that the
variables studied might relate to fee awards is reasonably self-evident and need not be
repeated here.
As previously reported, we searched in the WESTLAW™ “AllCases” database using the
search “settlement & ‘class action’ & attorney! w/2 fee! & date(=[1993–2002])”. This search’s
results were checked against a search of the LEXIS™ “Mega” database using equivalent
search terms. We also compiled lists of citations in the cases found by these search requests
and included any additional cases meeting the basic search criteria. We further checked the
list against the CCH™ Federal Securities and Trade Regulation Reporters. Once cases had
been identified by this method, we sometimes gathered additional information about case
characteristics from other sources—for example, information on the Internet or docket
entries in the U.S. Courts PACER system. The second segment covered the period 2003 to
2008, inclusive. We replicated the WESTLAW search (expanded to include the term
“derivative” to make doubly sure we picked up all derivative settlements) and checked the
results, in many cases, against information available on the Internet or in PACER.
The present study focuses solely on common fund cases and does not assess cases in
which a court applied a statutory fee-shifting statute to assess fees. Our searches and
exclusion criteria yielded recovery and fee information for a total sample of 689 common
fund cases. Relatively more cases come from the later period (301 cases for six years from
2003 to 2008 compared with 388 cases for the preceding 10 years). This was principally due
to the significantly expanded coverage of the PACER system in the later period, and also to
our inclusion of cases in which fee-shifting statutes could have been applied but the fee was
not determined by formally applying the fee-shifting statute.
We used the following conventions for coding in both searches. If the court stated a
range of value (e.g., for the amount of class recovery), we used the midpoint. If there was
no better estimate available but a maximum recovery value could be ascertained, we used
the maximum possible recovery. If the court estimated the relief at “over” or “more than”
a sum, the sum that was the minimum was used. Where the settlement amount included
post- or prejudgment interest, we included that in the amount of the settlement. We
collected only the number of attorney hours, thus excluding, where possible, the (usually
minor) hours reported for paralegals or law clerks.
5
For our prior empirical study of class action attorney fees, see Theodore Eisenberg & Geoffrey P. Miller, Attorney
Fees in Class Action Settlements: An Empirical Study, 1 J. Empirical Legal Stud. 27 (2004).
#:41189
252
To code the court’s fee calculation method, we tracked whether the court engaged in
a lodestar calculation and, if so, the purity of the lodestar approach. This generated the
following fee method categories: (1) percentage method cases in which no lodestar calculation exists, (2) cases in which both the lodestar calculation and the percentage approach
were used (usually with the lodestar being employed as a “cross-check” on the percentage
fee), and (3) pure lodestar cases in which the lodestar method was the exclusive method
used. If the lodestar amount was not specified, but could be estimated with reasonable
accuracy, we included it. We used plaintiffs’ own estimates of their lodestar only when these
estimates were not contested by the court. In some cases, the court simply reported a fee
without explaining its methodology; these we recorded as missing or as “negotiated” if the
approved fee was the one negotiated by the parties.
The coding of variables related to fee shifting was somewhat subtle. Many class action
cases are brought under numerous claims for relief, some of which authorize the court to
award fees to the prevailing plaintiff or prevailing party. When these cases settle, the courts
often set fees without reference to the fee-shifting statute. Even when fee-shifting statutes
are potentially available, the fee is often awarded out of the class recovery. Our “fee-shifting”
variable codes whether the fee could have been calculated under a fee-shifting statute
had the case progressed to a litigated judgment, regardless of whether the court
actually invoked the fee-shifting statute as a basis for awarding the fee. For the later cases
(2003–2008), we kept track of whether the court had actually used the fee-shifting statute
as a basis for awarding the fee. In that period, a fee-shifting statute was available in 177 cases
but was used as the basis for awarding the fee in only 21 cases, 11.9 percent. We included
as common fund cases the 156 cases in which fee-shifting statutes were available but were
not used. Preliminary regression models indicated no significant difference in fee awards
between these cases and “purer” common fund cases.
For many other variables, coding was reasonably straightforward. In employment
discrimination and civil rights cases, two prominent categories of fee-shifting statute cases,
the amount of the relief to the class, as expected, often was difficult to quantify because an
important element of relief in such cases was often injunctive. For civil rights cases involving
only injunctive relief, the cost to the defendant was used as a measure of the value of the
relief for the class when this was available. In some fee-shifting cases, the court awarded
attorney fees but it was impossible to estimate the amount of class damages. These fee and
recovery coding conventions led to usable values for the fee amount and the client recovery,
two of our core variables, in the 689 cases studied here.
We also coded cases for risk. Where the court addressed the question of risk, we
coded according to our best estimate of the court’s evaluation. In many cases, however, the
court did not explicitly address the risk of the litigation. Coding therefore depended on
assuming that risk was not prominent in cases in which courts did not mention it. We
divided the cases into three risk categories. If nothing was said about risk or if the court’s
discussion suggested a normal degree of risk, the case was coded as being medium risk. If
the court affirmatively indicated the existence of substantial risk, or if exceptional risk was
evident from the facts or procedural history of the case, we coded the case as having high
risk. If the court indicated or the facts otherwise suggested that the case was very likely to
generate a substantial recovery for the class at the time it was brought (e.g., if the case grew
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253
out of a prior government prosecution that had resulted in fines or convictions), we coded
the case as low risk.
As in our earlier work, two caveats about using published opinions are in order.
First, our data include only opinions that were published in some readily available
form. Obviously, therefore, we have not included the full universe of cases in our data set.
Although published opinions are not necessarily representative of the universe of all cases,
they can lead to important insights. For judges seeking to inform their fee decisions with
knowledge of other cases, published opinions are the prime source of data. Further, the
present study expands on the published opinion data by delving into unpublished materials
available on PACER when these could supply information missing from the published case
reports.
A second caveat about the published opinion data is that this methodology overweights federal cases. Opinions of state trial court judges are published less frequently than
opinions of federal district courts; and since fee awards are typically reported in the court
of first instance, we found many more federal than state opinions responsive to our search
request. Further, the PACER system allowed us to “dig” for more information in the case of
federal opinions. There is no state analog to PACER, and therefore we could only rarely
discover information about fees and related issues when a state opinion on a class action or
derivative case failed to report the necessary data.
III. Bivariate Results: Fee Amount and Fee Percent
We first examine bivariate results—that is, the relation between either the fee amount or
the fee percent and one of the other variables coded in our data. We outline the persistent
regular relationship between fees and recovery in both data sets (1993–2002 and 2003–
2008). We then examine the pattern of fees across other dimensions such as time, locale,
case category, risk, settlement class status, and the presence of opt outs and objectors. All
amounts are in 2008 inflation-adjusted dollars.
A. The Persistent Relation Between Fee and Recovery
The relation between fee amount and class recovery has remained consistent over time.
Figure 1 shows scatterplots of the fee amount and class recovery for each of the two time
periods (Figures 1a and 1b), for the time periods combined (Figure 1c), and for cases with
recoveries greater than or equal to $100 million (Figure 1d). The scales have been transformed into log10 units to address the bunching of cases at the lower end of the recovery
scale that would occur in a linear dollar scale. Units of log10 can easily be interpreted
because the log10 scale is simply based on powers of 10 (e.g., a value of 9 on a log10 scale
is equal to $1 billion, or one followed by nine zeros).
Figures 1a and 1b show that the pattern is virtually unchanged over time. The
associations between fee and recovery are striking and large. The linear correlation
between fee and recovery exceeds 0.94 for each time period and the slope of the relationships appears constant for the two time periods. In a regression model with a dummy
#:41191
254
Figure 1: Fees as a function of recovery.
4
4
5
5
Fee (log 10)
8
7
6
Fee (log 10)
6
7
8
9
b. 2003-2008
9
a. 1993-2002
4
5
6
7
8
Recovery (log 10)
9
10
4
6
7
8
Recovery (log 10)
9
10
4
6.5
7
5
Fee (log 10)
6
7
8
Fee (log 10)
7.5 8 8.5
9
d. Recoveries of $100 Million or More
9
c. Time Periods Combined
5
4
5
6
7
8
Recovery (log 10)
9
10
8
8.5
9
9.5
Recovery (log 10)
10
variable for time period and an interaction term consisting of the product of the time
period dummy variable and the class recovery size, one cannot reject the hypothesis that the
dummy variable and the interaction term coefficients are jointly zero, thus confirming the
consistency of the pattern. The relation between fees and class recoveries is also observed
when the data are combined, as shown in Figure 1c. In both the separate and combined
data sets, the size of the class recovery swamps all other influences on the size of the fee, as
shown in regression models in Section VI of this article.6 Figure 1d, which is limited to large
cases, also shows a strong linear relation between fee and recovery. For these 109 cases, the
linear correlation coefficient is 0.77 (p < 0.0001). The decreased slope for the high end of
case recoveries is consistent with the scaling effect discussed in Section III.B.4 of this article.
Figure 2 further supports the primacy of the recovery as the explanation for the fee
award. For ease of comparison, Figure 2a reproduces the combined time period data from
Figure 1c. Figures 2b and 2c show that neither the hours claimed nor the age of a case are
as strongly associated with the fee amount as is the class recovery amount.
With six additional years of data, we can extend our prior analysis of the pattern of
fees and class recoveries over time. One notable earlier finding was the absence of
6
Figure 1b shows the later time period with more low-recovery cases (less than $100,000). This is likely attributable to
our inclusion in the non-fee-shifting sample cases in which a fee-shifting statute existed but was not used, as well as
to the information about smaller cases now available on PACER See Section II.
#:41192
255
Fee as a function of recovery, hours, and age, 2003–2008.
Figure 2:
b. Fee as a Function of Hours
4
4
5
5
Fee (log 10)
8
6
7
Fee (log 10)
8
6
7
9
9
a. Fee as a Function of Recovery
4
5
6
7
8
Recovery (log 10)
9
10
1
2
3
4
Hours (log 10)
5
6
4
5
Fee (log 10)
6
7
8
9
c. Fee as a Function of Age
0
1
2
3
4 5 6 7 8
Age of case in years
9
10
increases in class recoveries or fees over time,7 a finding that heartened opponents of
attempts to reform the class action system via the Class Action Fairness Act of 2005
(CAFA)8 and prompted a response from a noted Yale Law School professor.9 The newer
data reveal that the level of both class recoveries and attorney fees has not varied substantially over time. As Figure 3 shows, these amounts have shown no distinct time trend
for most of 16 years. Inflation-adjusted recoveries and fees through 2007 were at levels
not significantly different from levels in 1993 and in fact are lower in inflation-adjusted
dollars. In 2008, a noticeable drop in mean and median recoveries and fees occurred.
The difference in class recovery medians between 2008 and all earlier years combined
is statistically significant at p = 0.002, and the difference in fees between 2008 and
earlier years is significant at p = 0.0003. The difference in the median ratio of fee to
recovery (ratio of the logs) did not significantly differ between 2008 and earlier years
7
Eisenberg & Miller, supra note 5.
8
Class Action Fairness Act, Pub. L. No. 109-2, 119 Stat. 4 (2005). See 149 Cong. Rec. S1299902 (Oct. 22, 2003)
(remarks of Senator Feingold); 151 Cong. Rec. S1086-02 (Feb. 8, 2005) (remarks of Senator Feingold).
9
George L. Priest, What We Know and What We Don’t Know About Modern Class Actions: A Review of the
Eisenberg-Miller Study (Feb. 2005, Manhattan Inst.).
2:07-cv-05295-MRP -MAN Document 990-3 Filed 10/11/10 Page 10 of 35 Pa
#:41193
256
6
Amount (log(10)
6.5
7
7.5
Figure 3: Class recovery and attorney fee over time, mean and median.
1993
1995
1997
1999
Mean recovery
Mean fee
2001
Year
2003
2005
2007
Median recovery
Median fee
Sources: Westlaw, LexisNexis, PACER.
(p = 0.517).10 We therefore do not view the changes in 2008 as necessarily indicating
anything significant about longer-term fee patterns.
B. Locales, Case Categories, and Other Factors
Table 1 shows the distribution of cases by locale. It combines all 25 federal appellate
opinions into one category, “Appeal,” and all 75 state cases into one category, “State.”
Federal district court cases dominate the sample, accounting for approximately 85 percent
of the cases. The federal class action cases cluster by districts. The Southern District of New
York accounted for 103 of 589 federal district court cases, and the Eastern District of
Pennsylvania accounted for 70 such cases. They are the only two districts to account for 10
percent or more of the federal trial court portion of the sample and together accounted for
25 percent of all cases in the sample. Two other districts accounted for more than 5 percent
of the federal court portion of the sample: the Northern District of California had 47 cases
10
This pattern of average and median fees in more recent years may be partly due to the increase in smaller cases that
we were able to code by accessing the PACER database and to inclusion in the later period of cases in which
fee-shifting statutes were theoretically available but not used to set the fee. We investigated whether a changing mix
of cases explained the pattern by separately assessing, for the two time periods, cases with recoveries greater than or
equal to $5 million and recoveries less than $5 million. For both recovery size groups, the difference in recovery across
the two time periods was not statistically significantly different. The difference over time in medians for cases with
recoveries greater than or equal to $5 million was significant at p = 0.590; for cases with recoveries less than $5 million,
the difference in medians was significant at p = 0.749. But the smaller cases were more prevalent in the later period.
Cases with recoveries of less than $5 million comprised 33 percent of the later period cases compared to 24 percent
of the earlier period cases, a difference statistically significant at p = 0.022. Thus the decreasing recovery amount over
time is attributable to a different mix of cases in our sample, and not to differences in treatment of similar cases over
time. Thus, throughout more than a decade of civil litigation reform efforts based on claims of increasing awards and
fees, the pattern in available opinions, which tend to include the largest cases, has not significantly changed.
#:41194
257
Table 1: Frequency of Class Action Fee Opinions, by
Court, 1993–2008
Locale
Other
SDNY
State
EDPA
NDCA
DNJ
NDIL
EDNY
APPEAL
DDC
EDMI
DMN
EDLA
MDFL
EDCA
CDCA
DMA
SDCA
Total
N
% of Cases
161
103
75
70
47
35
29
26
25
18
17
16
13
12
12
10
10
10
689
23.37
14.95
10.89
10.16
6.82
5.08
4.21
3.77
3.63
2.61
2.47
2.32
1.89
1.74
1.74
1.45
1.45
1.45
100.00
and the District of New Jersey 35 cases. The Northern District of Illinois had just under 5
percent of the federal district cases. Together, these five districts accounted for over 50
percent of the federal district court opinions.
These results suggest that class action litigation in the federal system is heavily
concentrated in a few jurisdictions. Of the 94 federal district courts, nearly half of all
class actions in our data set occurred in five courts. Even adjusting for population (the
popular class action districts also tend to be ones with large populations), the concentration ratio remains striking. We take this as evidence that certain jurisdictions offer
advantages for class action litigation, either in the form of experienced judges who can
handle these cases in a fair and expeditious manner, faster dockets, a sense on the part
of plaintiffs’ attorneys that the courts in these districts are reasonably well-inclined toward
class action litigation, or a concentration of class action attorneys specializing in the
practice.
We also investigated whether different federal courts appear to specialize in different
types of cases. Table 2 shows the breakdown of the four largest case types, plus the residual
case type, “Other,” in the federal district courts with the largest number of class action
settlements in our data (those listed in Table 1). For each case category, one column shows
the percent of cases in each district and a second column shows the number of cases. For
example, the Southern District of New York accounted for 70 of 253 securities cases, 28
percent of that category. Thus, the Southern District of New York tends to dominate
securities class actions, whereas the Eastern District of Pennsylvania is the leader in antitrust
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258
Table 2:
Class Action Case Categories by Locale, 1993–2008
Antitrust
Consumer
Employment
Securities
Other
Total
District
%
N
%
N
%
N
%
N
%
N
%
N
Other
SDNY
EDPA
NDCA
DNJ
NDIL
EDNY
DDC
EDMI
DMN
EDLA
EDCA
MDFL
CDCA
DMA
SDCA
Total
16
7
20
7
8
10
5
16
3
5
0
0
2
0
2
0
100
10
4
12
4
5
6
3
10
2
3
0
0
1
0
1
0
61
35
1
14
7
7
7
7
1
0
3
3
2
2
2
5
2
100
34
1
13
7
7
7
7
1
0
3
3
2
2
2
5
2
96
30
10
2
14
2
4
2
0
0
4
4
16
2
6
0
4
100
15
5
1
7
1
2
1
0
0
2
2
8
1
3
0
2
50
21
28
14
8
6
5
6
1
2
2
2
0
3
1
1
2
100
52
70
36
19
15
12
14
2
6
6
4
0
7
3
2
5
253
38
18
6
8
5
2
1
4
7
2
3
2
1
2
2
1
100
49
23
8
10
7
2
1
5
9
2
4
2
1
2
2
1
128
27
18
12
8
6
5
4
3
3
3
2
2
2
2
2
2
100
160
103
70
47
35
29
26
18
17
16
13
12
12
10
10
10
588
Note: Table includes only federal district court cases.
and consumer cases. The Northern and Eastern Districts of California are the leaders in
employment cases. Table 2 shows that the SDNY’s dominance is almost completely attributable to its large role in securities cases.
1. Fees Across Locales
Table 3 shows summary statistics about fees and recoveries by locale. The mean fee to
recovery ratio was 0.23, or 23 percent of the class award, but this percent varies by recovery
size, as shown in Figure 5 and Table 7. The mean fee was $12.8 million and the median
was $2.3 million. The mean class recovery was $116.0 million and the median was $12.5
million.
Some bankruptcy case fee studies11 and other studies of case outcomes show notable
interdistrict variation. Like these studies, we find significant variation across federal districts. For the 16 federal districts with at least 10 cases with necessary information in the
11
See Lynn M. LoPucki & Joseph W. Doherty, The Determinants of Professional Fees in Large Bankruptcy Reorganization Cases, 1 J. Empirical Legal Stud. 111, 114, 136 (2004) (showing significant fee request reduction variation
across Delaware and the Southern District of New York); Stephen J. Lubben, Corporate Reorganization and Professional Fees, 82 Am. Bankr. L.J. 82 (2008) (showing some significant Delaware and Southern District of New York
effects). But see Lynn M. LoPucki & Joseph W. Doherty, Professional Overcharging in Large Bankruptcy Reorganization Cases, 5 J. Empirical Legal Stud. 983, 1010 (2008) (tbl. 5, showing insignificant Delaware and Southern District
of New York effects).
#:41196
Table 3:
APPEAL
CDCA
DDC
DMA
DMN
DNJ
EDCA
EDLA
EDMI
EDNY
EDPA
MDFL
NDCA
NDIL
Other
SDCA
SDNY
State
Total
259
Fee and Class Recoveries, by Locale, 1993–2008
Mean
Ratio
Median
Ratio
Mean
Fee
Median
Fee
Mean
Gross
Recovery
Median
Gross
Recovery
Number
of Cases
0.19
0.25
0.22
0.16
0.25
0.21
0.26
0.26
0.22
0.32
0.28
0.21
0.26
0.24
0.24
0.26
0.22
0.20
0.23
0.20
0.25
0.22
0.15
0.27
0.22
0.25
0.23
0.20
0.25
0.29
0.21
0.25
0.24
0.25
0.25
0.22
0.20
0.24
5.89
3.93
16.69
11.50
8.77
32.26
0.40
7.79
6.56
11.33
12.66
3.64
4.44
12.14
20.47
4.66
11.54
5.94
12.84
2.15
2.75
2.14
7.00
4.75
7.80
0.12
1.77
1.34
2.38
1.51
2.66
2.00
2.75
3.25
1.14
2.13
2.00
2.33
57.86
16.30
134.79
118.55
40.99
503.42
3.26
43.53
34.80
142.42
75.79
18.23
24.06
51.45
154.98
63.12
127.97
61.61
116.01
13.37
19.90
13.00
81.00
14.25
36.88
0.54
8.61
11.75
9.03
6.88
14.87
9.25
12.50
16.38
4.90
12.85
12.32
12.50
25
10
18
10
16
35
12
13
17
26
70
12
47
29
161
10
103
75
689
Note: Dollar amounts are in millions of 2008 dollars.
sample (including “Other” as a district), a test of the hypothesis that the median ratio of fee
to class recovery does not differ significantly can be rejected, with a Mann-Whitney test
yielding a significance level of p = 0.014. Given the strong association between fee and class
recovery, we explored these initial interdistrict differences by accounting for recovery level
and case category in regression models. The district dummy variables were collectively
statistically significant (p = 0.035), indicating that when the size of class recoveries and case
categories are accounted for, one can reject the hypothesis of no statistically significant
interdistrict differences. Table 3’s first two numerical columns suggest that interdistrict
differences can be nontrivial but are not dramatic. With one exception, the District of
Massachusetts, the median ratio always ranges from 0.20 to 0.29.
In federal courts, attorney fee doctrine is dictated at the circuit court level if
the appeals court has issued an opinion on point (the Supreme Court has never offered
definitive guidance on this issue). The Ninth Circuit has a 25 percent benchmark fee in
common fund cases but allows departures based on individual case factors,12 and the
Eleventh Circuit has indicated that its district courts view 25 percent as a benchmark.13
12
E.g., Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993).
13
Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).
#:41197
260
Table 4:
Fee and Class Recoveries, by Federal Circuit, 1993–2008
Circuit
Mean
Ratio
Median
Ratio
Mean
Fee
Median
Fee
Mean
Gross
Recovery
Median
Gross
Recovery
Number
of Cases
1st
2nd
3rd
4th
5th
6th
7th
8th
9th
10th
11th
DC
Total
0.20
0.23
0.26
0.20
0.24
0.23
0.26
0.25
0.25
0.22
0.21
0.21
0.24
0.20
0.24
0.26
0.21
0.23
0.23
0.24
0.30
0.25
0.23
0.22
0.22
0.25
31.83
10.58
17.38
29.27
42.39
10.42
8.79
11.21
4.53
12.46
17.35
15.17
13.74
3.50
2.13
3.00
1.89
2.63
3.33
2.15
4.18
1.80
7.42
4.22
1.94
2.40
227.41
119.06
193.50
320.07
368.34
94.65
38.37
68.35
32.97
63.96
87.09
122.04
123.12
19.32
11.63
13.38
13.55
15.65
15.50
10.07
14.70
9.50
32.00
26.85
11.00
12.50
21
145
120
8
26
42
42
29
101
22
34
20
610
Note: Three Federal Circuit cases and all state court cases are omitted. Dollar amounts are in millions of 2008 dollars.
The Eleventh and D.C. Circuits mandate the percentage methodexclusively, while other
circuits allow percentage or lodestar methods.14 The Second Circuit’s Goldberger decision
rejected the use of benchmarks and mandated a fact-specific inquiry.15
Table 4 explores intercircuit variation, showing summary statistics about fees and
recoveries by circuit, and excludes state court cases. The median and mean fee to recovery
ratios were 0.24 and 0.25, respectively. In regression models of the ratio, circuit dummy
variables were not collectively statistically significant (p = 0.124), indicating that when the
size of class recoveries and case categories are accounted for, one cannot reject the
hypothesis of no statistically significant intercircuit differences. We also explored differences between particular circuits and all other circuits based on announced benchmarks
and methods. In regression models using dummy variables for individual circuits, and
controlling for case category and recovery size, none of the individual circuit effects were
statistically significant. Nor were differences within the Second Circuit significantly different pre- and post-Goldberger.16
14
Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C. Cir. 1993); Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768,
774 (11th Cir. 1991).
15
Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000).
16
Nor was the variance in fee percent significantly different between the Ninth or Eleventh Circuits and other circuits.
For a more in-depth exploration of the effect (or lack of effect) of the Goldberger decision, see Theodore Eisenberg,
Geoffrey Miller & Michael Perino, A New Look at Judicial Impact: Attorneys’ Fees in Securities Class Actions After
Goldberger v. Integrated Resources, Inc., 29 Wash. U. J. Law & Policy 5 (2009).
#:41198
261
2. State-Federal Differences
We hypothesized that the fee percent would tend to be higher in class actions in state court
than in federal court.17 Beliefs in differences in how federal and state courts process class
actions were cited as reasons for enactment of CAFA.18 The Congress that enacted CAFA
intended to route interstate class actions to federal court, “with the expressed intent of
defeating the plaintiffs’ bar’s manipulation of state courts.”19 President George W. Bush
declared that it “marks a critical step toward ending the lawsuit culture in our country.”20
Empirical support for CAFA was almost entirely lacking, however, with both Federal Judicial
Center (FJC) research21 and our own prior work22 suggesting little in the way of significant
state-federal defferences.
Table 3 shows that the mean fee to class recovery ratio for state court cases
was 0.20, lower than the overall mean ratio of 0.24. Regression models of the fee (log 10)
or the ratio (of logs) as a function of the case category and the class recovery
size indicate that the federal-state difference was sometimes statistically significant in
the direction suggested by Table 3—namely, that state courts award lower percentage
fees.23 The direction of the effect is surprising if one believes federal courts are less
receptive to class actions than are state courts. A lower fee to recovery ratio suggests
somewhat less encouragement of class action activity by state courts compared to federal
courts.
3. Case Categories
Table 5 summarizes fees, recoveries, and their ratios by case categories. Mean fees ranged
from 11 percent of the class recovery in tax cases to 27 percent in employment cases. In the
17
18
Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of 28 U.S.C.). See generally Kevin M. Clermont
& Theodore Eisenberg, CAFA Judicata: A Tale of Waste and Politics, 156 U. Pa. L. Rev. 1553 (2008); Georgene M.
Vairo, Class Action Fairness Act of 2005 (2005).
19
Clermont & Eisenberg, supra note 18, at 1554–55.
20
Remarks on Signing the Class Action Fairness Act of 2005, 41 Weekly Comp. Pres. Doc. 265, 265 (Feb. 18, 2005); see
also Edward A. Purcell, Jr., The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform, 156 U. Pa. L. Rev. 1823 (2008) (stressing partisan support for CAFA).
21
Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does it Make? 81 Notre Dame L. Rev. 591, 645, 652–54 (2006) (finding insignificant differences in state court
and federal court treatment of class actions, and observing that “[a]ttorney perceptions of judicial predispositions
toward their clients’ interests show little or no relationship to the judicial rulings in the surveyed [state and federal
class action] cases”). See also Section VII.
22
23
The state court effect was significant in multilevel models with a random intercept for case category. The effect was
insignificant in models with dummy variables for case category.
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262
Table 5:
Fee and Class Recoveries, by Case Category, 1993–2008
Antitrust
Civil rights
Consumer
Corporate
Employment
ERISA
Securities
Tax refund/tax
Tort
Other
Total
Mean
Ratio
Median
Ratio
Mean
Fee
Median
Fee
Mean
Gross
Recovery
Median
Gross
Recovery
Number
of Cases
0.22
0.24
0.25
0.21
0.27
0.23
0.23
0.11
0.21
0.23
0.23
0.23
0.23
0.20
0.19
0.25
0.25
0.25
0.06
0.20
0.25
0.24
21.02
4.10
10.04
3.35
2.43
6.61
14.78
12.96
30.15
13.59
12.84
9.15
1.52
1.70
1.12
0.75
3.46
2.52
5.50
6.33
2.00
2.33
163.48
16.53
128.42
16.51
12.28
29.54
141.96
188.01
254.60
61.86
116.01
39.36
7.48
9.33
9.86
3.00
14.00
12.50
60.07
25.86
10.75
12.50
71
18
125
30
55
43
268
8
29
42
689
Note: Dollar amounts are in millions of 2008 dollars.
Table 6:
Frequency of Case Categories, by Time Period
Non-Fee-Shifting Cases
1993–2002
Antitrust
Civil rights
Consumer
Corporate
Employment
ERISA
Securities
Tax refund/tax
Tort
Other
Total
2003–2008
N
% of Cases in Period
N
36
2
52
15
7
7
142
6
17
19
303
11.9
0.7
17.2
5.0
2.3
2.3
46.9
2.0
5.6
6.3
100
35
16
73
15
48
36
126
2
12
23
386
9.1
4.2
18.9
3.9
12.4
9.3
32.6
0.5
3.1
6.0
100
larger case categories, fees ranged from 21 percent to 27 percent of recoveries. A test of the
hypothesis that the median ratio of fees to recoveries is the same across case categories can
be rejected at p < 0.022, if one includes the small civil rights and tax categories. But the effect
becomes statistically insignificant if one excludes the two smallest categories (p = 0.222).
The case category makeup of the samples varied over time. Table 6 shows the case
category breakdown for the time period of our prior study and the years 2003 to 2008,
added for purposes of this study. In each time period, securities cases were the dominant
case category, but they declined as a proportion of the sample in the later time period. This
#:41200
Fee and recovery by case category, 1993–2008.
Antitrust
Civil Rights
Consumer
Corporate
Employment
ERISA
Securities
Tax Refund/Tax
Tort
Other
10
8
6
4
6
8
10
4
Fee (log 10)
4
6
8
10
Figure 4:
263
4
6
8
10 4
6
8
10
Gross recovery (log10)
is due to the increase in the proportion of civil rights, employment, and ERISA cases, which
likely increased because of the change in coding, discussed above, to allow inclusion with
common fund cases, cases subject to a fee-shifting statute but in which the fee was not
determined pursuant to the statute, as well as to increased availability of information
through the PACER database.
Figure 4 explores whether the core relation between fee amount and class recovery
varies by case category. It shows that relation through separate scatterplots for 10 case
categories. The consistency of the pattern across category is striking. Every category shows
the same basic relation between fee and recovery.
4. Scaling Effect
The existence of a scaling effect—the fee percent decreases as class recovery increases—is
central to justifying aggregate litigation such as class actions. Plaintiffs’ ability to aggregate
into classes that reduce the percentage of recovery devoted to fees should be a hallmark of
a well-functioning class action system.24 As Figure 5 shows, a substantial scaling effect existed
24
#:41201
264
Figure 5:
Fee as a percent of recovery for two time periods.
2003-08
60
40
0
20
Fee percent
80
100
1993-2002
4
5
6
7
8
9
10 4
5
6
7
8
9
10
Recovery (log 10)
in the 2003–2008 period, as well as in the earlier 1993–2002 period. The linear correlation
coefficient for 2003–2008 was -0.57 and for 1993–2002 was -0.50, both statistically significant at p < 0.0001. The lines in the figure show the best-fitting regression line for each data
subset.
Table 7 presents additional information about the scale effect. For purposes
of this table, we divided the range of class recoveries into deciles of about 69
cases each. Table 7’s first column shows the bounds on the deciles, starting with the
lowest decile of class recoveries. Thus the table’s first numerical row includes cases
with class recoveries in the first decile, those recoveries less than or equal to $1.1 million.
The table’s last row includes cases in the highest decile, those with recoveries
greater than $175.5 million. The table’s columns show, within each decile range, the
mean, median, and standard deviation of the fee percent for the row decile. Thus, for
the 69 cases with class recoveries of less than $1.1 million, the mean fee percent
award was 37.9 percent in 69 cases, the median fee percent award was 32.3 percent,
and the standard deviation was 19.6 percent. Although there is some fluctuation in the
scale effect trend across the middle deciles, the overall trend is clear, with the highest
decile having less than one-third of the median and mean percentage fee of the lowest
decile.
#:41202
265
Table 7: Mean, Median, and Standard Deviation of
Fee Percent, Controlling for Class Recovery Amount,
1993–2008
Range of Class Recovery
(Millions) Decile
Mean
Median
SD
N
Recovery <= 1.1
Recovery > 1.1 <= 2.8
Recovery > 2.8 <= 5.3
Recovery > 5.3 <= 8.7
Recovery > 8.7 <= 14.3
Recovery > 14.3 <= 22.8
Recovery > 22.8 <= 38.3
Recovery > 38.3 <= 69.6
Recovery > 69.6 <= 175.5
Recovery > 175.5
37.9
27.1
26.4
22.8
23.8
22.7
22.1
20.5
19.4
12.0
32.3
26.4
25.0
22.1
25.0
23.5
24.9
21.9
19.9
10.2
19.6
9.1
9.8
8.4
8.1
7.5
8.7
10.0
8.4
7.9
69
69
69
69
69
69
68
70
69
68
Table 8:
Fee Percent, by Risk Level
High Risk
Antitrust
Civil rights
Consumer
Corporate
Employment
ERISA
Securities
Tax refund/tax
Tort
Other
Total
Low/Medium Risk
N
Fee %
N
Fee %
9
4
14
4
4
5
45
—
8
13
106
20.1
29.3
31.3
23.4
35.1
24.6
26.4
—
25.1
22.1
26.1
62
13
110
26
51
38
217
8
21
29
575
22.2
23.2
24.7
20.8
26.2
23.2
22.7
10.8
19.0
23.9
23.1
5. Risk
Standards applied to attorney fees uniformly indicate that greater risk warrants an
increased fee.25 Table 8 reports, by case category, the mean fee percent separately for high
risk and other cases. It confirms that courts systematically reward risk. For every case
category except antitrust and “other,” mean fee percents were higher in high-risk cases than
in other cases. The difference within a case category between high-risk cases and other cases
25
E.g., Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000).
#:41203
266
Table 9: Fee Percent and Settlement Classes, Opt
Outs, Objectors
Period
2003–2008
A. Settlement Class Status
Settlement class
Not a settlement class
B. Presence of Objectors
Any objector
No objector
C. Number of Opt Outs
No opt outs
One opt out
>One opt out
N
Fee %
208
160
24.4%
25.4%
142
123
23.4%
28.6%
28
20
116
34.6%
37.2%
23.6%
was statistically significant only for the large securities category (t test significance level,
p = 0.006).
6. Settlement Classes, Opt Outs, and Objectors
Table 9 reports the relation between the fee percent and three class action case characteristics: settlement class status (Panel A),26 whether any objection was filed (Panel B), and the
number of class members opting out of the class (Panel C). We collected useful data on
these issues only for the later time period (2003–2008). No significant difference in fee
percent for settlement class cases compared to nonsettlement class cases emerged. There
were significant differences in the fee percent for cases with and without objectors. Cases
with objectors tended to have lower fee percents than cases without objectors. Cases with
more than one opting-out class member tended to have lower fee percents than cases with
zero or one opting-out class member. But, in regression models that supplement those
reported in Table 17, the objector and opt-out variables were found not to be significant
once one controlled for recovery size.
IV. Bivariate Results: Fee Methods and Multipliers
The dominant method used to calculate fees in class actions has evolved from considering
multiple factors27 to the dominance of two other methods, the lodestar and percentage
26
A settlement class is a case in which a class was certified for settlement purposes only.
27
The factors include the time and labor required, the customary fee, whether the fee is fixed or contingent, the
amount involved and the results obtained, the experience, reputation, and ability of the attorneys, awards in similar
#:41204
Table 10:
267
Frequency of Method Used, by Time Period
1993–2002
Lodestar
Percent
Both (usually % with LS check)
Other
Total
2003–2008
N
N
38
158
68
16
280
13.6
56.4
24.3
5.7
100
37
146
165
38
386
9.6
37.8
42.8
9.8
100
Note: LS = lodestar method.
methods. Under the lodestar method, courts multiply the reasonable number of hours
expended by counsel by a reasonable hourly rate and then adjust the product for various
factors.28 Under the percentage method, the court multiplies the amount recovered on
behalf of the class by a percentage factor. Some courts adopt a blended approach that
checks the percentage method for reasonableness against a lodestar calculation.29 We
explore here the rates at which courts use the fee calculation methods, the relation between
those methods and fees, the rates at which courts granted requested fees, and the use of
multipliers in cases using the lodestar method.
A. Lodestar
1. Frequency of Use of Lodestar Versus Percent
Table 10 reports the rate of use of competing methods of computing a fee award. One
result is the decline in the use of the lodestar method. From 1993 to 2002, 13.6 percent of
cases used a pure lodestar method. From 2003 to 2008, only 9.6 percent of cases used the
lodestar method, a notable but not statistically significant reduction (p = 0.136). This is
likely due to the relatively few cases using the lodestar method exclusively.
Table 10 also suggests a reduction in use of the pure percent method, from 56.4
percent to 37.8 percent, but this understates the dominance of the percent method. For the
1993 to 2002 period, we coded which method was primary and which was used as a check.
In non-fee-shifting cases in this period, 61 cases used the percent method with a lodestar
cases, the nature and length of the professional relationship with the client, the time limitations imposed by the client
or the circumstances, the preclusion of other employment by the attorney due to acceptance of the case, the novelty
and difficulty of the questions, the skill needed to perform the legal services, and the “undesirability” of the case. The
leading precedent outlining this multifactor approach is Johnson v. Georgia Highway Express, 488 F.2d 714, 717–19
(5th Cir. 1974).
28
E.g., Gisbrecht v. Barnhart, 535 U.S. 789 (2002). See Charles Silver, Unloading the Lodestar: Toward a New Fee
Award Procedure, 70 Tex. L. Rev. 865 (1992); Charles Silver, Due Process and the Lodestar Method: You Can’t Get
There from Here, 74 Tulane L. Rev. 1809 (2000).
29
See notes 12–15 supra for circuit level case law addressing the fee method to be used.
#:41205
268
0
.1
Proportion lodestar
.2
.3
.4
.5
Figure 6: Pure lodestar use over time.
1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Year
Securities cases
Other cases
check compared with three cases that used the lodestar method with the percent method
as a check. The 68 cases shown as using “both” methods in the earlier period included an
additional four cases that used both methods without indicating which was dominant. So
cases coded as using “both” methods were almost always percent method cases with a
lodestar check. We used less detailed coding of the method in the second period. If a case
used both methods, we simply coded it as “both.” Nevertheless, it is reasonable to assume
that the “both” cases in the second period are similar to those in the earlier period and are
dominated by the percent method with the lodestar as a check. So our best estimate is that
the percent method is the overwhelmingly dominant method of computing fees, either as
the sole method or as the primary method with the lodestar as a check. Figure 6 shows the
rate of pure lodestar use over time, with a separate line for the large subset of securities class
actions. Figure 1’s strong linear correlation between fee and recovery supports this assessment as a lodestar-dominated system would likely show a less strong association between fee
and class recovery.
Table 11 limits the sample to federal cases and shows the fee method used broken
down by circuit. As suggested by Table 10, the use of the percent method, combined with
the use of the percent method with a lodestar check, dominates. Table 11 shows that this is
the pattern in every circuit, regardless of formal fee method doctrine. The lodestar method
peaks at 21 percent of cases in the Sixth Circuit and only the Second Circuit combines
nontrivial lodestar use with a substantial number of cases. The table slightly overstates the
more recent federal rate of lodestar use, which totaled only 9 percent in cases from 2003 to
2008.
#:41206
Table 11:
269
Fee Method by Circuit, Federal Cases, 1993–2008
Lodestar
Percent
Both
Other
Total
Circuit
%
N
%
N
%
N
%
N
%
N
1st
2nd
3rd
4th
5th
6th
7th
8th
9th
10th
11th
D.C.
Federal Circuit
Total
5
19
5
13
20
21
10
0
9
9
3
0
0
11
1
26
6
1
5
8
4
0
9
2
1
0
0
63
60
37
37
50
40
62
61
59
48
41
52
50
100
46
12
51
43
4
10
24
25
17
48
9
17
10
3
273
35
40
56
38
36
13
17
34
30
45
36
35
0
37
7
55
65
3
9
5
7
10
30
10
12
7
0
220
0
5
3
0
4
5
12
7
13
5
9
15
0
7
0
7
3
0
1
2
5
2
13
1
3
3
0
40
100
100
100
100
100
100
100
100
100
100
100
100
100
100
20
139
117
8
25
39
41
29
100
22
33
20
3
596
Table 12:
Fee Percent by Method Used, by Time Period
1993–2002
Lodestar
Percent
Both (usually % with LS check)
Other
Total
2003–2008
N
Mean Fee % of Recovery
N
Mean Fee % of Recovery
38
158
68
16
280
17.2
23.4
22.9
11.4
21.7
37
146
165
38
386
31.6
25.3
21.9
28.7
24.8
Note: LS = lodestar method.
2. Is Use of the Lodestar Method Associated with Lower Fee Awards?
Table 12 explores the relation between fee method and fee percent. Although the table’s
first row suggests a substantial increase in fee percents in lodestar cases over time, the
higher fee percents in recent lodestar cases are an artifact of case category. Consumer cases
comprise 37 percent of the lodestar category and the difference between percent and
lodestar methods vanishes if one excludes consumer cases. The consumer case category
percent of cases changed for the two periods in our sample. Consumer cases were 59.5
percent of the lodestar cases in the later period compared to 15.8 percent of the lodestar
cases in the earlier period. The lodestar method was used at a higher rate, 23.0 percent, in
consumer cases than in any case category other than the small tax category. These highpercent consumer cases (see Table 8) are the source of the change in mean lodestar fee
percents over time. The increased prominence of consumer cases in the later period
#:41207
270
sample is likely attributable to our including as common fund cases those in which a
fee-shifting statute was theoretically available but was not in fact used. In regression models,
reported below (see Table 18), the percent and “both” fee methods have positive and
statistically significant coefficients compared to the lodestar method once case category is
controlled for.
For the period 2003 to 2008, we coded the hours worked by attorneys in cases with
opinions reporting that information. The lower lodestar awards appear to be a consequence of fewer hours worked, or at least fewer hours claimed in court filings. Fewer hours
were worked, on average, in lodestar method cases than in other cases and fewer hours were
worked in consumer cases than in any other case category. As in regressions of the fee
amount, regression of hours worked that controlled for fee method, case category, and
circuit yielded coefficients for the percent and “both” method dummy variables that are
statistically significant and positive compared to lodestar cases.
B. Fee Grant Rates
Fee requests were generally granted in the amount requested, with 72.5 percent of requests
granted in full, as shown in Table 13’s last row (Panel A). Our data for the rate of grants is
limited to the 2003 to 2008 period because requested amounts were not recorded for the
earlier time period. Table 13 shows that strong intercircuit differences (p = 0.012, excluding the two Federal Circuit cases) in the grant rate existed, with the Second Circuit granting
the requested amount statistically significantly less often than the Third Circuit or the Ninth
Circuit. These intercircuit differences remain significant in logistic regression models that
control for case category and recovery amount, and in models that exclude securities cases.
The table also shows that state courts tended to grant award requests at a lower rate than
federal courts. The difference between federal and state grant rates was only statistically
significant at p = 0.148.
Fee requests were not granted in full in 100 of 363 cases. In those cases, the mean fee
grant was 68 percent of the request and the median was 74 percent. The mean grant of 61
percent in state court cases was lower than the 69 percent in federal court cases and the
median of 66 percent in state court cases was also lower than the median of 75 percent in
federal court cases. However, only nine of the 100 cases with less than full grants were state
court cases.
Table 13, Panel B, shows the rate at which requested fees were granted in relation
to the range of class of recovery, using the same decile ranges as Table 7. It shows a
declining grant rate as the class recovery increases. The grant rate for the lowest recovery
decile was 83 percent compared to 56 percent for the highest recovery decile. We interpret this as indicating that judges tend to scrutinize fee requests in large cases more
closely than they do for smaller cases. Panel C shows the grant rate in relation to the
percent of class recovery requested as fees. Instead of using class recovery deciles, it uses
deciles of the percent of recovery requested, which range from the lowest decile of
requests up to 11.8 percent of the recovery to the highest decile of requests over 35.7
percent. It shows a trend of decreasing grant rates as the percent of the recovery
requested increased. Attorneys requesting the lowest percents received requested amounts
#:41208
Table 13:
271
Rates at Which Requested Fees Were Given, 2003–2008
A. By Locale
Locale
Proportion of Fee Requests
Granted in the Amount Requested
N
0.70
0.54
0.83
0.60
0.69
0.79
0.79
0.83
0.83
0.77
0.64
0.80
0.50
0.59
0.72
10
74
64
5
13
24
14
18
72
13
22
10
2
22
363
1st
2nd
3rd
4th
5th
6th
7th
8th
9th
10th
11th
D.C.
Federal Circuit
State court
Total
B. By Range of Class Recovery (Millions)
Range of Class Recovery (Millions) Decile
Recovery <= 1.1
Recovery > 1.1 <= 2.8
Recovery > 2.8 <= 5.3
Recovery > 5.3 <= 8.7
Recovery > 8.7 <= 14.3
Recovery > 14.3 <= 22.8
Recovery > 22.8 <= 38.3
Recovery > 38.3 <= 69.6
Recovery > 69.6 <= 175.5
Recovery > 175.5
Rate Granted
N
0.83
0.75
0.82
0.67
0.77
0.68
0.76
0.68
0.67
0.56
52
36
38
33
35
34
33
34
36
32
Rate Granted
N
0.81
0.86
0.62
0.76
0.72
0.71
0.67
0.61
36
36
37
75
72
35
36
36
C. By Range of Class Recovery Percent Requested Decile
Percent
Percent
Percent
Percent
Percent
Percent
Percent
Percent
of
of
of
of
of
of
of
of
recovery
recovery
recovery
recovery
recovery
recovery
recovery
recovery
requested <= 11.8%
requested > 11.8% <= 17.8%
requested > 17.8% <= 21.9%
requested > 21.9% <= 25%
requested > 25.0% <= 30.0%
requested > 30.0% <= 33.3%
requested > 33.3% <= 35.7%
requested > 35.7%
Note: In Panel C, the number of observations in the fourth and fifth rows reflects the bunching of fee requests at 25
percent and 30 percent. They each occupy approximately two deciles of fee requests.
#:41209
272
Table 14: Mean Multiplier by Circuit and
Case Category
Mean Multiplier
N
2.10
1.58
2.01
2.43
2.07
1.97
1.85
2.30
1.54
1.91
1.19
2.23
1.54
1.81
15
97
87
7
15
22
16
14
50
14
19
11
1
368
2.24
1.99
1.82
1.94
1.24
1.58
1.75
1.83
2.35
1.81
38
11
60
7
21
29
177
11
14
368
A. Circuit
1st
2nd
3rd
4th
5th
6th
7th
8th
9th
10th
11th
D.C.
Federal
Total
B. Case Category
Antitrust
Civil rights
Consumer
Corporate
Employment
ERISA
Securities
Tort
Other
Total
in 81 percent of cases compared to 61 percent for attorneys requesting the highest percents. This result suggests that attorneys who make more modest fee requests have a
greater chance of having their requests granted.
We explored the effects of the class recovery amount, percent of recovery requested,
circuit, and type of case in logistic regression models in which whether the requested
fee was granted was a dichotomous dependent variable. The class recovery amount and
the percent of recovery requested were highly statistically significant (each p < 0.001), the
circuit dummy variables were jointly significant at p = 0.005, and the case type dummy
variables were not statistically significant (p = 0.262).
C. Multipliers
Courts often check the percentage-based attorney fee against the lodestar award. If the
percentage fee grossly exceeds the lodestar amount, the fee may be deemed excessive, and
the courts can adjust the fee downward to a more reasonable range. Table 14 reports, for
#:41210
Relation between multipliers and fee percent, recovery, and hours, 2003–2008.
Figure 7:
b. Recovery vs. Multiplier, 2003-2008
10
a. Fee Percent vs. Multiplier, 2003-2008
c
oc
Recovery (log 10)
6
8
cc
c = Consumer case
o = non-consumer case
cc
o
occ
cc
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c oo
oo ooo
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ocooo
ooco co
cococo
ooco
oo
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-4
-2
0
Multiplier (log)
o
c
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cooo o
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oo oo
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ooco
o occoo o o
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o
4
o
20
Fee percent
40 60 80 100
273
2
4
-4
-2
0
Multiplier (log)
2
4
Multiplier (log)
2
-2
0
4
c. Multiplier vs. Hours, 2003-2008
o
o
o
o
o oo o
c
o o oooo o o oo oo
o
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o
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c
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-4
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4
6
8
10
Hours (log)
12
14
federal cases, the mean multiplier applied by circuit and by case category. The sample is
limited to those cases that reported a multiplier that was not equal to 1.
The mean multiplier ranged from 1.19 in the Eleventh Circuit to 2.43 in the Fourth
Circuit. Across case categories, the mean multiplier ranged from 2.35 in “other” to 1.24 in
employment cases. But, in regression models of the multiplier (log) as a function of circuits
and case categories, neither the dummy variables for circuits nor for case categories were
collectively significant. We therefore cannot reject the hypotheses that multipliers are
similar across circuits and case categories.
We do, however, find significantly different multipliers used in cases in which feeshifting statutes were available and cases in which they were not. With no statute in the
background, multipliers averaged 1.96 in 161 cases with necessary data. If a fee-shifting
statute was available, multipliers averaged 1.38 in 66 cases. The difference in medians was
significant at p = 0.021.
Figure 7 shows the relation between the fee outcomes, class recovery amount, and
multipliers (Figures 7a and 7b), and between multiplier and hours reported (Figure 7c).
Since a suspected fee windfall is most likely to occur when the percentage method
would yield what is perceived to be too high a fee, we expect the multiplier to tend to bring
high percentage fee cases into a more moderate range. We therefore predicted and found,
in our prior study, a strong negative correlation between the lodestar multiplier (fee award
#:41211
274
Table 15: Mean, Median, and Standard Deviation of
Multiplier, Controlling for Class Recovery Amount,
1993–2008
(Millions) Decile
Mean
Median
SD
N
Recovery <= 1.1
Recovery > 1.1 <= 2.8
Recovery > 2.8 <= 5.3
Recovery > 5.3 <= 8.7
Recovery > 8.7 <= 14.3
Recovery > 14.3 <= 22.8
Recovery > 22.8 <= 38.3
Recovery > 38.3 <= 69.6
Recovery > 69.6 <= 175.5
Recovery > 175.5
0.88
0.95
1.44
1.59
1.49
1.68
1.83
1.98
2.70
3.18
0.74
0.77
1.25
1.25
1.45
1.51
1.44
1.75
2.09
2.60
0.45
0.67
0.74
1.32
0.87
0.85
1.44
1.00
2.43
1.99
33
40
32
34
37
38
33
38
43
40
divided by the lodestar) and the percentage fee awarded.30 A similar relation exists for
2003–2008, as shown in Figure 7a.
Higher multipliers should, in general, lead to higher recoveries, a result shown in
Figure 7b. Increased multipliers do not appear to be being used a reward for hours worked.
Figure 7c shows no clear positive association between mutlipliers and hours.
Table 15 presents more detailed information about the relation between class recovery and multipliers. It uses the recovery deciles reported in Table 7, but Table 15 includes
fewer observations because the sample is limited to cases with multipliers not equal to 1.
The table reports the mean, median, and standard deviation for each recovery decile.
The pattern for the mean and median multiplier confirms that suggested by Figure 7b. As
the recovery decile increases, the multiplier also tends to increase, with the multiplier in the
highest recovery decile more than triple that of the multiplier in the lowest recovery decile.
V. Costs and Expenses
Costs and expenses (collectively “costs”) tended to be a small percentage of the class
recovery and have remained a fairly constant percentage over time. For the 232 cases from
1993 to 2002 for which cost data were available, mean costs were 2.8 percent of the recovery
and median costs were 1.7 percent. For the 304 cases with necessary data from 2003 to 2008,
mean costs were 2.7 percent of the recovery and median costs remained at 1.7 percent. As
before, we found no evidence that the cost percent increased over time.31
30
31
Id.
#:41212
275
Figure 8: Costs as a function of recovery, fees, hours, and age, non-fee-shifting cases,
2003–2008.
b. Costs as a Function of Fee
Costs (log 10)
4 5 6 7
2
2
3
3
Costs (log 10)
4 5 6 7
8
8
a. Costs as a Function of Recovery
5
6
7
8
Recovery (log 10)
9
10
4
5
8
9
d. Costs as a Function of Age
2
2
3
3
Costs (log 10)
4 5 6 7
Costs (log 10)
4 5 6 7
8
8
c. Costs as a Function of Hours
6
7
Fee (log 10)
2
3
4
Hours (log 10)
5
6
0
1
2
3
4
5
6
7
Age of case in years
8
9
10
Note: Cases with age greater than 10 years old are coded as 10 years old.
We further explored costs as a function of four variables: (1) the class recovery,
(2) the fee, (3) the hours reported in the court’s opinion, and (4) the age of the case in
years. We only coded hours billed and case age beginning with the 2003 to 2008 data.
Figure 8 shows the relation between costs and the four factors and limits the sample to cases
in which hours were reported in opinions and costs were at least $100. All four factors are
positively associated with costs. The figure also suggests that the strongest association is
between costs and hours.
Table 16 shows the correlation coefficients between costs and the four factors in
Figure 8. The first four numerical columns cover the period 2003–2008, for which hours
data were recorded. The last two numerical columns show the correlation between costs
and fee and recovery for the period 1993–2002. The correlations between costs and
recovery and fee for either period do not reach the strength of association of hours and
costs in the later period. The weaker correlation between costs and age may be in part a
function of age being coded only in whole years and therefore providing a less continuous
measure of that factor.
A regression model, not reported here, of costs as a percent of recovery controls for
case category and other factors. It shows that costs, like fees, have a scale effect: their
percent of recovery significantly declines as the size of the recovery increases. The cost
#:41213
276
Table 16:
Correlations Between Costs and Four Factors
Fee
(Log10)
Recovery
(Log10)
Hours
(Log)
Age in Years
Period = 2003–2008
Correlation Coeff.
Significance
N
0.86
<0.0001
167
0.85
<0.0001
167
0.91
<0.0001
167
Fee
(Log10)
Recovery
(Log10)
Period = 1993–2002
0.34
<0.0001
167
0.77
<0.0001
232
0.71
<0.0001
232
percent significantly increases with hours. In a model with both case age and hours as
explanatory variables, only hours were statistically significant.
VI. Multivariate Results
Some of the above results are so strong and robust that no further analysis is needed to
support their credibility. The strong correlation between fees and class recovery and the
scale effect survive any reasonable analysis, are reasonably represented by Figures 1 and 5,
and are confirmed in regression models reported below. Other key results consist of factors
associated with the level of the fee award. These include:
1. The tendency of state courts to award a lower percent of recovery as a fee,
2. The relation between case category and fee percent,
3. The tendency of high-risk cases to receive a higher percent of the class recovery as
a fee, and
4. The tendency of lodestar awards in non-fee-shifting cases to be lower than
percent-method awards.
This section first explores the robustness of these results to simultaneous control for
recovery level and then reports regression models.
A. The Relation Between the Fee Award and State Court Status, Risk, and the Lodestar Method
As Figure 1 and our earlier work suggest, for most explanatory variables, the size of the class
recovery is the most important potential confounding factor in assessing the relation
between other covariates and the fee award. From Figures 1 and 5, we know that: (1) the fee
award increased with class recovery, and (2) the fee award was a declining percent of the
class recovery as the class recovery increased. Regression models assessing nonrecovery
covariates thus require both a dummy variable for the covariate, and an interaction term
between the covariate and the class recovery. That is, the covariate may influence both the
intercept and the slope of the line representing the relation between the covariate and the
fee award. The use of class recovery, a dummy covariate, and an interaction term raises
problems of multicollinearity in the regression model, which preliminary analysis confirmed. The problems arose even when a single covariate and interaction term were
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Table 17: Influence of Locale, Risk, and Lodestar Method on Percent Fee Award, Controlling for Class Recovery Amount, 1993–2008
Federal-State
(Millions) Decile
Recovery <= 1.1
N
Recovery > 1.1 <= 2.8
N
Recovery > 2.8 <= 5.3
N
Recovery > 5.3 <= 8.7
N
Recovery > 8.7 <= 14.3
N
Recovery > 14.3 <= 22.8
N
Recovery > 22.8 <= 38.3
N
Recovery > 38.3 <= 69.6
N
Recovery > 69.6 <= 175.5
N
Recovery > 175.5
N
Risk
Lodestar
Federal
Case
State
Case
Low-/Medium-Risk
Case
High-Risk
Case
Other
Methods
Pure
Lodestar
38.7
64
26.8
63
27.0
58
22.7
61
24.1
61
23.3
62
22.3
58
21.2
61
19.6
64
12.6
61
27.2
5
30.4
6
23.2
11
23.2
8
21.4
8
15.6
6
20.8
10
15.7
9
16.0
5
6.5
7
37.1
64
26.7
60
26.0
61
21.8
55
23.3
58
22.7
63
20.9
58
19.9
62
17.3
50
10.6
52
48.4
5
29.5
9
29.3
8
26.8
14
26.8
11
23.0
6
29.2
10
24.6
8
24.7
19
16.5
16
32.3
53
26.6
64
26.8
65
23.3
54
24.8
56
23.3
61
24.0
53
21.6
61
20.0
62
12.7
62
58.0
15
33.4
5
17.9
2
20.5
9
19.0
11
16.3
6
11.7
11
9.8
7
10.0
4
4.3
5
included in regression models, and were magnified when multiple covariates and interaction terms were used. Rather than simply report possibly questionable regression models,
we first used a simpler technique to explore the possible influence of certain covariates on
the fee award while simultaneously accounting for the class recovery.
Table 17 expands on Section III’s tables by reporting in more detail, for non-feeshifting cases, the relation between the fee awarded and three key covariates—state court
status, risk, and use of the lodestar method—while controlling for the size of the class
recovery. As was done for Tables 7, 13, and 15, we divided the range of class recoveries into
deciles. Table 17’s first column shows the bounds on the deciles, starting with the lowest
decile of class recoveries. Each decile’s statistics are reported in two rows; the first shows the
fee percent and the second row shows the number of cases included in the fee percent
calculation. Thus the table’s first two numerical rows include cases with class recoveries in
the first decile, those recoveries less than or equal to $1.1 million. The table’s last two rows
include cases in the highest decile, those with recoveries greater than $175.5 million. The
table’s second and third columns show, within each decile range, the mean fee percent
award and the number of cases, divided by federal court versus state court status. Thus, for
the 69 cases with class recoveries of less than $1.1 million, the mean federal case fee percent
award was 38.7 percent in 64 cases and the mean state case fee percent award was 27.2
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percent in five cases. The table’s fourth and fifth columns show the same information, but
now divided by high-risk case status versus low-/medium-risk case status. The table’s sixth
and seventh columns show the same information divided by use of the pure lodestar
method versus use of all other methods.
With respect to federal versus state court status, the mean state case fee percent is
lower than the mean federal percent for every recovery decile except the second and
fourth. Thus, after controlling for class recovery size, state courts tend to award lower fees
than federal courts but not overwhelmingly so. The pattern is even more consistent with
respect to risk. For every recovery decile, the fee percent is higher in high-risk cases than in
low-/medium-risk cases. The lodestar effect follows the same trend, with every class recovery
decile except the lowest two showing a lower fee percent in pure lodestar cases than in
other cases. In the low recovery deciles, of course, the lodestar method can compensate
attorneys for substantial efforts that a percent fee award may not fully reflect. Section III’s
results for these three covariates therefore survive analysis that controls for the key potential
confounder, the class recovery size.
B. Regression Models
Table 18 reports ordinary least squares regression models that confirm our core results.
Model 1 shows that over 90 percent of the variance in the fee is explained by the size of the
Table 18:
Regression Models of Fees
1
2
3
4
5
Dependent Variable = Fee (Log10)
Gross recovery (log10)
0.850
(74.37)**
State court case
0.850
(73.79)**
-0.088
(8.25)**
High-risk case
0.846
(73.32)**
-0.083
(8.15)**
0.111
(7.16)**
0.833
(62.21)**
-0.040
(3.13)**
0.102
(6.06)**
0.827
(61.35)**
0.003
(0.15)
0.098
(5.06)**
0.395
(4.92)**
No
681
0.92
0.188
(4.76)**
0.181
(4.82)**
0.032
(0.62)
0.331
(3.28)**
No
663
0.93
0.169
(4.22)**
0.158
(4.15)**
0.028
(0.51)
0.440
(3.64)**
Yes
663
0.93
Lodestar = reference category
Percent method
Both methods
Other methods
Constant
Case category dummies
Observations
R2
0.374
(4.91)**
No
689
0.92
0.382
(4.69)**
No
688
0.92
Notes: Robust t statistics in parentheses; *significant at 5 percent; **significant at 1 percent; standard errors are
clustered by locale.
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recovery. None of the other models add materially to the explanatory power of this simple
model. Nevertheless, it is noteworthy that the model with the largest set of explanatory
variables, Model 5, shows no statistically significant difference between state and federal
courts. The models also consistently confirm that fee methods other than the pure lodestar
method tend to have higher fees. The models confirm the association between greater risk
and increased fees.32 In Model 5, a test of the hypothesis that the case category dummy
variables are jointly equal to zero can be rejected at p = 0.0003. Their significance persists
if one omits the two small cases categories, civil rights and tax, but the significance level
increases to p = 0.012. The significance of the results in Table 18 persists if one limits the
sample to the 106 cases with recoveries of $100 million or more but the sizes of the
coefficients do change. The percent of variance explained then ranges from 72 percent to
77 percent, depending on the model.
We also tested whether the use of a lodestar “cross-check” generated a different
pattern of fees than when fees were calculated according to the percentage method alone.
A regression analysis not reported here does not find any statistically significant difference
between fees calculated by the percentage method alone and those calculated by the
percentage method with the lodestar cross-check. This result may raise questions about
the utility of the lodestar cross-check, which can involve a time-consuming analysis of the
reasonableness of the attorneys’ hours and hourly rates.
VII. Discussion
The data support several major conclusions.
Strength of Relation and Dominance of Method. The percentage fee method is overwhelmingly
the method used by courts in awarding fees in class actions. It is so widely used and so
consistently employed that other information about cases adds little explanatory power to
study of the fee award. The amount of the class recovery dwarfs all other effects. Even in
circuits that eschew the percentage method, it appears to be the dominant de facto method
used and best explains the pattern of awards. The consistent pattern may help attorneys to
calibrate their fee requests and lead to courts usually approving the requested fee amount.
Scale Effect and Aggregate Litigation. The pattern of class action awards continues to exhibit
a strong scale effect. Attorneys receive a smaller proportion of the recovery as the size of the
recovery increases. Aggregation of claims thus appears to have produced the kind of
efficiency hoped for. This characteristic of aggregate litigation should be considered when
evaluating devices designed to preclude or discourage aggregate litigation or arbitration,
such as prohibitions on class arbitration.33
32
Multilevel models, using random intercepts for locale and case category, do not yield materially different results.
33
For a study suggesting possible efforts to discourage aggregate litigation, see Theodore Eisenberg, Geoffrey P. Miller
& Emily Sherwin, Mandatory Arbitration for Customers But Not for Peers: A Study of Arbitration Clauses in Consumer
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The Scope and Nature of Our Sample. Some perspective on the scope of our sample relative
to the universe of class action cases comes from a study of class actions against insurers
from 1993 through 2002. The RAND Institute for Civil Justice surveyed 269 property
and casualty insurers and 207 life and health insurers, received responses from 205 companies, and obtained usable information from 199 insurers.34 Of 564 attempted class
actions, 12 percent led to a class settlement.35 In 32 cases, the respondents provided
information about the aggregate pool of funds offered to settle the case and its associated
expenses. The amounts ranged from $360,000 to $150 million, with a mean fund size
of $12.8 million and a median size of $2.6 million. Almost two-thirds of the cases, 62.5
percent, resulted in a common fund of less than $5 million.36 In 48 cases, the respondents supplied information about the award to class counsel for fees and expenses. Fees
and expenses ranged from $50,000 to $50,000,000, with a mean of $3.4 million and a
median of $554,000.37 The overall median fee and expense ratio from the pooled data
was thus about 21 percent ($554,000 divided by $2.6 million). This compares to a pooled
median fee of $2.33 million and median gross recovery of $12.5 million in our sample,
as shown in Table 3, which yields a pooled ratio of 19 percent. The scaling effect, combined with our higher median gross recovery, probably helps explain the lower ratio in
our sample of cases.
Aside from the RAND study’s similar findings about fee levels, the study shows the
small fraction of class action filings that lead to information about fees, even in the absence
of being limited to available opinions. In the RAND data, 564 purported class actions led to
78 certified classes and 32 cases with available fee information. Thus, less than 15 percent
of purported class actions were certified and about 6 percent led to usable fee information.
If the same proportions are assumed to apply more broadly, then our 689 fee cases can be
thought of as representing over 12,000 purported class action filings.
Federal-State Differences. Despite claims that CAFA was needed to redress differences in state
and federal court processing of class actions, our data provide little evidence of federal-state
differences. The fee per amount recovered did not systematically differ between federal and
state courts, as shown in Table 17. Table 13 shows that state courts were, if anything, less
likely than federal courts to grant the requested fee amount.
and Non-Consumer Contracts, 92 Judicature 118 (Nov.–Dec. 2008); Theodore Eisenberg, Geoffrey P. Miller & Emily
Sherwin, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer
Contracts, U. Mich J.L. Reform 871 (2008), reprinted in 4 ICFAI U.J. of Alternative Disp. Resol. 51 (2008).
34
Nicholas M. Pace, Stephen J. Carroll, Ingo Vogelsang & Laura Zakaras, Insurance Class Actions in the United States
9–10 (2007).
35
Id. at 47 (tbl. 3.16).
36
Id. at 54.
37
Id. at 55.
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The absence of pro-class bias in state courts is consistent with sources cited above38
and with additional research. In the RAND insurance study, of 564 attempted class actions,
12 percent led to a class settlement, with 12 percent of the 465 state court cases and 15
percent of the 98 federal court cases settling.39 The modal outcome of a pretrial ruling for
the defense did not significantly differ between federal and state courts.40 The settlement
rate for the cases with certified classes did not statistically significantly differ between
federal and state courts.41
Thus, available evidence about comparative state-federal judicial performance in
class actions consistently suggests no strong differences.
VIII. Conclusion
Over the course of 16 years, attorney fees in class action cases have displayed a strikingly
strong linear relation to class recoveries. Significant associations also exist between the fee
amount and both the fee method and the riskiness of the case. Despite CAFA’s premise of
differences between federal and state court treatment of class actions, our findings add to
a growing body of evidence that little hard data support claims of significant state-federal
differences. Core results persisted in mega-cases, those with recoveries of $100 million or
more, in cases with settlement classes, and in cases with and without objectors and opt outs.
Fees and costs decline as a percent of the recovery as the recovery amount increases,
suggesting the efficiency of this form of aggregate litigation. In this data set that likely
includes the most significant class action decisions, those that lead to an available opinion,
neither fees nor recoveries materially increased over time.
We hope that the information contained in this study can be of use to courts charged
with the important and sometimes daunting task of setting counsel fees in class action and
derivative cases.
38
Text accompanying notes 18–22 supra.
39
Pace et al., supra note 34, at 47 (tbl. 3.16).
40
Id.
41
Id. at 48 (tbl. 3.17). The study did not distinguish between orders certifying the case for a class trial, those certifying
for settlement purposes only, and those certifying on a provisional basis only. Id. at 17. Neil Marchand reports that
plaintiffs’ preferences for state or federal court in Michigan class actions vary depending on the governing substantive
law, with preference for state courts in cases governed by state substantive law and preference for federal courts in
cases governed by federal substantive law. Neil J. Marchand, Class Action Activity in Michigan’s State and Federal
Courts, available at <http://ssrn.com/abstract=1334923>.
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ATTORNEY FEE AWARDS IN COMMON FUND CLASS ACTIONS [FN1]
I. Introduction and Methodology
In 1990 we published an extensive survey of fee awards in securities and antitrust class actions. [FN2] That
analysis included 404 cases, representing aggregate class recoveries of $6.3 billion for more than 2.5 million
hours for which the fees were awarded. Since then, we have reported fee award data for individual cases in § 50
of each issue. Now we have an updated Survey which, unlike the 1990 Survey, includes consumer, labor, mass
tort, and other types of class actions as well as securities and antitrust cases. [FN3] The new Survey is much larger--1,120 cases, representing aggregate class recoveries of about $41 billion for more than 5.7 million hours-although we do not have hours data for cases actually accounting for 60% of the total recoveries and 65% of the
fees awarded, due to the present dominance of the percentage of recovery method for awarding fees, where no
hours are reported. [FN4] The data for each case is itemized in Table 1 (pp. 169-193) and is summarized for
each class recovery size range as follows:
As can be seen, for every dollar recovered in a common fund class action, 18.4 cents goes to the attorneys
and for other costs (expert fees, out-of-pocket expenses, etc.) [FN5] and 81.6 cents goes to the class members,
which should seem to be a pretty good deal for class members relative to paying, say, 40% to an individual personal injury lawyer. A comparison with our 1990 study, limited to antitrust and securities class actions, shows
the following:
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In our 1990 Study, we noted that average hourly rates, multipliers, and fee percentages had changed little
from that reported in our previous 1980 Study. [FN6] In contrast, those numbers have changed significantly
from 1990 to 2003. Notably (1) the average hourly rate has increased from $494.26 in 1990 (inflated to 2003
dollars) to $1,192.43 in 2003; and (2) the average multiplier has increased from 1.83 in 1990 to 3.89 in 2003.
But these increases are mainly due to the addition of new “mega” cases with very high class recoveries. For example, in the 1990 Study there were only 12 cases with recoveries of $75 million or greater (and containing
hourly data). In the 2003 Study, there are 55 such cases. Because the data show that, on average, higher recoveries result in higher hourly rates and higher multipliers, these new large recovery cases explain the multiplier and
hourly rate increases from 1990 to 2003.
Similarly, the average percentage of recovery consumed by fees and expenses has also increased, from 14.8
in 1990 to 18.4 in 2003. This increase is explained by the increasing ascendancy of the percentage-of-recovery
method of awarding fees over the more stringent lodestar/multiplier method. For the 471 cases that used the percentage method, fees and costs consumed an average of 20.9% of recoveries. For the 649 non-percentage (or
“mixed” percentage/multiplier) fee cases, fees and costs consumed an average of 14.5% of recoveries. Even in
the larger recovery ranges ($75 million or higher), courts have awarded fees of at least 25% in 25 of those 90
cases.
The 2003 Survey does confirm what the 1980 and 1990 Surveys found--that hourly rates and multipliers tend
on average to increase with the size of the class recovery (though there is extreme variability in individual
cases). The percentage of the class recovery consumed by attorney fees and costs is remarkably constant for recoveries under $10 million (averaging from 30.4% to 31.9%) and then declines gradually from 27.9% to 23.6%
for recoveries between $10 million and $75 million. Even at recoveries in the $75 million to $100 million Group
(20.9%) and the over $100 million Group (15.1%), the average percentages are significantly higher than those in
the highest range in the 1990 study--10.1% for the over $50 million Group.
That the overall fee percentage is 15.1% for recoveries in Group 1 ($100 million and over), as compared
with the 18.4% figure for the entire sample, illustrates how a relatively few “big cases” dominate the entire
sample. Just 13 cases in which recoveries were over $400 million account for nearly half of the total $41.6 billion recovered in all 1,120 cases and 36% of the total fees awarded.
Care has been taken to include all fee awards we have been able to find and analyze thus far, those involving
low as well as high percentages, hourly rates, and multipliers. This is not a “selective” Survey aimed at pleasing
either plaintiffs or defendants. Table 1 follows and combines all of the cases into a single sample ordered by the
size of the class recovery. A more detailed explanation of the data in Table 1 follows.
II. Chart of Recoveries and Awards by Recovery Size
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(Recoveries, Fee and Costs Recovery Percentages, Hours, Lodestars, Multipliers, and Hourly Rates)
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EXPLANATION OF DATA
Class Recovery. Table 1 provides a shorthand name for each case in Column 1 and the amount of the class
recovery in Column 2. We have attempted to exclude all cases in which class members received “coupons” usable for discounts off of future purchases from the defendant, newly issued securities of unknown market value,
or open ended “claims made” settlements in which the claims made are not now known and/or claims not made
revert to the settling defendant, since the real value of those class recoveries is unknown (though the fees are),
and no common fund recovery amount or fee percentage can be properly computed. The class recovery includes
accrued interest where known (as do fee awards). Where fees and/or other expenses (e.g., notice costs) were
paid separately from, and in addition to the settlement amount, the amount of those fees and expenses are added
to and included in the class recovery.
Fees and Costs. The total fee awarded all plaintiff attorneys in each case is listed in Column 3, and the total
costs and disbursements are listed in Column 4. Where known, compensation awarded for paralegal and law
clerk time is treated as costs (at their lodestar rates) rather than fees, which by transferring any paralegal multipliers to attorney compensation sometimes causes the data we compute for attorney hourly rates, lodestars, and
multipliers to differ slightly from the figures stated in the court decisions awarding the fees. [FN7]
Fee Percentage. Column 5 shows the percentage of the class recovery consumed by the sum of fees and
costs. This percentage is computed not by reference to the net class recovery (after deduction of fees and costs)
but by reference to the gross recovery, which includes fees and costs even where they are awarded separately
from and in addition to a class recovery fund. The Table 1 Overall Summary and the Summaries for each recovery range Group separately break down all of the data for cases in which fees were awarded on a percentage
basis vs. those in which the lodestar/multiplier or “mixed” method was used. [FN8]
Length of Case. Column 6 shows the approximate length of time between the filing of the complaint and the
final fee award, the date of which is given in Column 7. In recent years courts generally have used current rates
(or sometimes have added interest to historical rates) to compensate for the delay in payment. In some earlier
cases, however, there was either no compensation for delay in payment, or the court added a separate
“multiplier” for delay or included that factor in determining the overall multiplier. More recently the delay in
payment problem has focused on the time elapsing between the date that the fee petition is initially filed and the
date fees are finally awarded. This can sometimes be as long as two years, during which “current” lodestar rates
continue to rise. Some courts award interest on fees for this period; others do not.
Attorney Hours. Column 8 shows the total hours for which all plaintiff attorneys in each case were awarded
fees. Column 9 provides the number of claimed hours, if any, that were specifically disallowed. Thus it should
be kept in mind that the hourly rates displayed as having been awarded in these cases do not include disallowed
hours. Since time spent preparing fee petitions is not compensable in common fund cases, we do not even count
such time as “excluded hours.” Of course, this is a necessary task that does take time, and to that extent the
hourly rates we publish are somewhat inflated. Sometimes it is difficult to determine whether a court is reducing
a fee request by disallowing hours, by reducing hourly rates, or both. To the extent possible, we have tried to
keep these concepts distinct. Disallowed hours are reflected in Column 9. Reductions in hourly rates are reflected in Column 11 (lodestar rate).
Net Recovery Per Hour. Column 10 tabulates the net class recovery per compensated attorney hour, after
each class recovery (col. 2) has been inflated to current (February 2003) dollars. These data track the pattern
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seen previously in which hourly rates and multipliers tend to increase (on average) as does the size of the class
recovery. So does the net recovery per attorney hour, which should confirm the economies of scale inherent in
class action litigation. However, as can be seen by the highlighted $50 to $75 million and $2 to $3 million recovery ranges, this pattern does not pan out. This statistic, which varies widely from case to case, may also be
used as a crude measure of efficiency as to what fee should be awarded in a given case. But the time spent just
as well be explained by how difficult or easy the case had been.
Lodestar Rates. Column 11 shows the average lodestar hourly rate for all plaintiff attorneys or firms in each
case. For the unfamiliar, the “lodestar” rate is the “market” hourly rate that the petitioning plaintiff attorney
charges paying clients in a noncontingent fee case (or sometimes what some hypothetical attorney of similar
skill and experience would or should charge). These rates typically vary with the experience and skill of the attorney or firm-- partners charge higher rates than associates--as well as geographically.
Multipliers. In Column 12 is listed any multiplier applied to the lodestar to produce the total hourly rate (col.
13). Often multipliers are not explicitly awarded but can be computed from the total fee awarded (even if on a
percentage fee basis) if the total lodestar is known. Values such as 0.80 represent negative multipliers, where
counsel failed to recover their normal billing rate (often as a result of a voluntary reduction in the lodestar because the fee would otherwise consume too high a percentage of the recovery, but sometimes because of inferior
performance by counsel, or judicial hostility). [FN9]
Total Hourly Rates. Column 13 displays the average total hourly rates derived by dividing the fee by the
hours (col. 3 / col. 8--also derived by applying the multiplier (col. 12) to the lodestar rate (col. 11) where that
data is available.
Current Rates. The total hourly rate data (col. 13) are a stepping stone to Column 14, which inflates those
rates into February 2003 dollars using the Consumer Price Index (for all urban consumers). These are cases in
which fees were awarded at widely varying points in time over a nearly 30 year period of price inflation. Converting all of these rates to constant and current dollars enables valid comparisons to be made among the cases.
[FN10] We have not attempted to investigate how accurately the CPI reflects increases in lawyers' fees in general or in plaintiff class action attorney lodestar fees in particular.
Proxies. In a number of cases the court provided incomplete lodestar/multiplier/hours data. For example, the
total lodestar for all class counsel may be given but not the number of attorney hours. Or the total hours may be
specified but not their lodestar value. On occasion the resulting multiplier may be indicated but not the hours or
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lodestar value. The boldfaced numbers in Table 1 represent hourly and multiplier data derived from average
hourly rate “proxies.” In particular, the average attorney lodestar hourly rate (inflated to February 2003 dollars)
is $292.20. [FN11] Where the lodestar hourly rate is unavailable for a particular case, we have substituted that
average figure in order to compute the multiplier. Similarly, where the number of attorney hours is unavailable,
we have divided the total fee awarded by the $292.20 average hourly rate to estimate the number of hours. And
where only the multiplier is available, the number of hours can be estimated by total fee/multiplier/$292.20. The
Table 1 Overall Summary and the Summaries for each recovery range Group separately break down the lodestar
and total hourly rates for cases not using proxies (i.e., the actual data is available) and cases using proxies.
Caveat Regarding Rates/Multipliers. It should be kept in mind that 616 of the 1,120 Survey cases have no
data (actual or proxy) for hours, hourly rates, or multipliers. These cases--most of which are pure percentage fee
awards-- account for 60% of the total recoveries and 65.1% of the total fees. We just do not presently know,
without further very time-consuming and expensive investigation into court records of fee petitions or correspondence asking plaintiffs' counsel to provide copies (as we did for the 1990 Survey), how many hours were
spent on these cases.
III. Analysis
Fees by Type of Case. In the introduction we noted that the use of the percentage rather than the lodestar/
multiplier method of awarding fees seemingly has resulted in an increase from 14.8% to 18.4% of the attorney
fee/expenses “take” of what class members actually receive (though other factors may also be at play here). The
data may be analyzed in other ways as well. One question we thought of interest is to separate the total Database
into particular types of cases--antitrust, consumer, securities, etc.--and see whether fees awarded were higher or
lower depending upon the type of case. These summary data are displayed in Table 2.
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It can be seen that the percentage of the recovery consumed by fees and costs ranges from 14.7% for Labor/
Wage/Pension cases to 23.0% for Employment Discrimination cases, with the other case types in between. The
current total hourly rates (for cases in which data or proxy data are available) range from $636.47/hr. for Labor/
Wage/Pension cases to $1,370.49/hr. for Securities cases. Just eyeballing these averages suggests that the disparities are significant, even though the same fee award standards are supposedly used in all types of cases. Some
of these disparities, however, might be explained by grouping each case type into size of recovery ranges, as was
done for the entire sample in Table 1. We have not presently run those separate numbers.
Fees by Time Period. Table 3 breaks the fee awards down into seven time periods between 1973 and 2003.
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There are disparities in these averages as well, though the general upward trend since 1985 is probably explainable in part by the rise of the percentage method of awarding fees. Again, breaking down these recoveries
into size ranges (expressed in current dollars) might further explain the disparities, but we have not yet run those
numbers.
IV. Citations to Cases in Attorney Fee Study
A & J Deutscher Family Fund v. Pacific Scientific Co., No. 85-1850 (C.D. Cal. June 16, 1989) (see 13
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Class Action Rep. 324 (1990))
AAMCO Automatic Transmissions, Inc. v. Tayloe, 82 F.R.D. 405 (E.D. Pa. 1979) (see 13 Class Action Rep.
496 (1990))
Abramson v. Hyatt Int'l Corp., 1982 Fed. Sec. L. Rep. (CCH) ¶ 98,447 (S.D.N.Y.) (see 13 Class Action Rep.
458 (1990))
Abulaban v. R.W. Pressprich & Co., No. 69-5734 (S.D.N.Y. Feb. 5, 1976), as noted in N.Y.L.J., Feb. 10,
1976 (see 13 Class Action Rep. 444 (1990))
Acree v. Wells Fargo Bank, No. 948134 (Cal. Super Ct. San Francisco Mar. 4, 1994) (see 17 Class Action
Rep. 428 (1994))
Adair v. Bristol Technology Systems, Inc., 1999 Fed. Sec. L. Rep. (CCH) ¶ 90,731, 1999 WL 1037878 at
*3-*4 (S.D.N.Y. Nov. 16, 1999) (see 21 Class Action Rep. 260 (2000))
Adams v. Standard Knitting Mills, Inc., 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,377 (E.D. Tenn.) (see 13 Class
Action Rep. 438 (1990))
Alexander v. Centrafarm Group, N.V., No. 88-3378 (N.D. Ill. Sept. 20 & Nov. 9, 1989) (see 13 Class Action
Rep. 372 (1990))
Alexander v. National Football League, 1977-2 Trade Cases (CCH) ¶ 61,730 (D. Minn.) (see 13 Class Action Rep. 486 (1990))
Allan v. Perry Drug Stores, Inc., Nos. 93-74303 & 93-74557 (E.D. Mich. Feb. 21, 1995) (see 19 Class Action Rep. 67 (1997))
Almand v. Lesok, No. 3-96-1571 (N.D. Tex. Feb. 1, 1999) [Texas Commerce Bank] (see 20 Class Action
Rep. 388 (1999))
Alpha Group Consultants, Ltd. v. Weintraub, No. 91-0143 (S.D. Cal. May 11, 1993) (McCue, Mg) (see 17
Altman v. Central of Ga. Ry. Co., 540 F.2d 1105 (D.C. Cir. 1976), 580 F.2d 659 (D.C. Cir. 1978) (see 13
Ampex (same as In re Consolidated Pretrial Proceedings in Ampex Securities Cases, No. 73360 (N.D. Cal.
Oct. 6, 1976) (see 13 Class Action Rep. 316 (1990)))
Amsterdam v. Turbodyne Corp., 1981 Fed. Sec. L. Rep. (CCH) ¶ 97,976 (S.D.N.Y.) (see 13 Class Action
Rep. 406 (1990))
Anderson v. Boothe, No. 85-0025 (E.D. Pa. June 13 & July 14, 1986) (see 13 Class Action Rep. 292 (1990))
Antonopulos v. North American Thoroughbreds, Inc., 1991 Fed. Sec. L. Rep. (CCH) ¶ 96,058 (S.D. Cal.) (
see 14 Class Action Rep. 264 (1991))
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Antonson v. Robertson, 1993 WL 500871 (D. Kan. Nov. 23, 1993) (see 16 Class Action Rep. 576 (1993))
Armstrong v. Crown Life Ins. Co., No. 96-1675 (W.D. Wash. Mar. 25, 1998)
Arnold v. Bank of Boston Corp., No. 12883 (Del. Ch. New Castle Co. Nov. 6, 1996 & Hearing Tr.)
Axelrod v. Saks & Co., 1980-1 Trade Cases (CCH) ¶ 63,861 (E.D. Pa. 1981) (see 13 Class Action Rep. 506
(1990))
Ayers v. Sutliffe, Nos. 1-90-650, 1-91-240 & 1-91-595 (S.D. Ohio Dec. 11, 1992) (see 16 Class Action Rep.
472 (1993))
B&B Inv. Club v. Kleinert's, Inc., No. 73-642 (E.D. Pa. Aug. 4, 1978) (see 13 Class Action Rep. 376
(1990))
Babbitt v. Albertson's Inc., No. 92-1883 (N.D. Cal. Oct. 5, 1994) (see 18 Class Action Rep. 338 (1996))
Baffa v. Donaldson Lufkin & Jenrette Securities Corp., 2002 WL 1315603 (S.D.N.Y. June 17, 2002) (see
23 Class Action Rep. 784 (2002))
Bagel Inn, Inc. v. All Star Dairies, 539 F. Supp. 107 (D.N.J. 1982) (Meanor, J) (see 13 Class Action Rep.
502 (1990))
Bakalor v. Integrated Communication Network, Inc., No. 96-2021 (S.D. Fla. Dec. 15, 1997)
Baker v. Health Management, Inc., No. 97-1646 (E.D.N.Y. Nov. 30, 1999)
Balan v. Merrill Lynch & Co., No. 94-9043 (S.D.N.Y. Dec. 26, 2000) (see 22 Class Action Rep. 259 (2001))
Bank v. Pitt, No. 89-6015 (S.D. Fla. Sept. 30, 1994) (see 17 Class Action Rep. 532 (1994))
Barnett v. Pritzker, 73 F.R.D. 430 (S.D.N.Y. 1977) (MacMahon, J) (see 13 Class Action Rep. 368 (1990))
Barnhart v. Safeway Stores, Inc., No. 92-0803 (E.D. Cal. June 28, 1994) (Shubb, J) (see 18 Class Action
Rep. 338 (1996))
Baron v. Commercial & Indus. Bank of Memphis, 1979 Fed. Sec. L. Rep. (CCH) ¶ 97,132 (S.D.N.Y.) (see
Barr v. WUI-TAS, Inc., 1976-1 Trade Cases (CCH) ¶ 60,725 (S.D.N.Y.) (MacMahon, J) (see 13 Class Action Rep. 506 (1990))
Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 640 F. Supp. 697 (S.D. Ohio 1986) (see 13 Class
Action Rep. 298 (1990))
Bassett v. Toyota Motor Credit Corp., No. 92-063-K (Ala. Cir. Ct. Washington Co. Feb. 23, 1995) (see 19
Bassman v. Union Pacific Corp., No. 97-2819 (N.D. Tex. Dec. 13, 2000) (see 22 Class Action Rep. 259
(2001))
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Beckmann v. CBS, Inc., No. 96-1172 (D. Minn. Jan. 19, 2001) (see 22 Class Action Rep. 402 (2001))
Beecher v. Able, 435 F. Supp. 397 (S.D.N.Y. 1977) (see 13 Class Action Rep. 338 (1990))
Beeson v. Producer's Brokerage Co., No. 83-1872 (7th Cir. June 5, 1987) (see 13 Class Action Rep. 348
(1990))
Behrens v. Wometco Enterprises., Inc., 118 F.R.D. 534, 544-550 (S.D. Fla. 1988) (see 13 Class Action
Rep. 356 (1990))
Beldekas v. Amin, No. 91-2283 (C.D. Cal. Nov. 22, 1993) (see 17 Class Action Rep. 124 (1994))
Benerofe v. Bartlett, 1975 Fed. Sec. L. Rep. (CCH) ¶ 95,260 (S.D.N.Y.) (see 13 Class Action Rep. 368
(1990))
Benzoni v. Greve, No. 70-3194 (S.D.N.Y. Jan. 15, 1975), as noted in N.Y.L.J., Jan. 20, 1975 (see 13 Class
Action Rep. 444 (1990))
Berl v. The Southland Corp., No. CA3-90-1254 (N.D. Tex. Nov. 1, 1991)
Berlinsky v. Alcatel Alsthom, 970 F. Supp. 348 (S.D.N.Y. 1997)
Bernstein Assocs., Inc. Defined Benefits Pension Plan v. Kidder Peabody & Co., Nos. 93-1569, 93-4288 &
93-4417 (Colo. Dist. Ct. City & Co. of Denver Apr. 28, 1995) (see 19 Class Action Rep. 66 (1997))
Bharucha v. Reuters Holdings, PLC, No. 90-3838 (E.D.N.Y. May 30, 1996)
Biagas v. Chadsey, No. 97-191 (S.D. Fla. Nov. 30, 2001) (see 22 Class Action Rep. 958 (2001))
Biben v. Card, Nos. 84-0844, 84-0846 & 840978 (W.D. Mo. Dec. 16, 1993) (see 17 Class Action Rep. 662
(1994))
Black v. Chase Bank of Texas National Ass'n, No. 00-822 (N.D. Tex. Nov. 6, 2001) (see 22 Class Action
Rep. 955 (2001))
Blackman v. O'Brien Environmental Energy, Inc., 1999 WL 397389 (E.D. Pa. May 12, 1999) (see 22
Blank v. Talley Industries, Inc., 390 F. Supp. 1 (S.D.N.Y. 1975) (see 13 Class Action Rep. 304 (1990))
Bleznak v. CGS Scientific Corp., 387 F. Supp. 1184 (E.D. Pa. 1974) (see 13 Class Action Rep. 422 (1990))
Bloor v. Ameritrust Corp., No. 90-1501 (N.D. Ohio Mar. 17, 1994) (see 17 Class Action Rep. 425 (1994))
Bobalik v. Ameritech Mobile Communications, Inc., No. 96 CH 4130 (Ill. Cir. Ct. Cook Co. Mar. 5, 2002)
(see 23 Class Action Rep. 453 (2002))
Bogart v. National Community Banks, Inc., No. 90-5032 (D.N.J. Oct. 16, 1995 & notice dated Aug. 21,
1995)
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Boggess v. Hogan, 410 F. Supp. 443 (N.D. Ill. 1976) (Robson, J) (see 13 Class Action Rep. 398 (1990))
Bogosian v. Gulf Oil Corp., Nos. 71-1137 & 71-2543 (E.D. Pa. June 19, 1981), 621 F. Supp. 27 (E.D. Pa.
1985) (Van Artsdalen, J) (see 13 Class Action Rep. 478 (1990))
Bonime v. Doyle, 1977 Fed. Sec. L. Rep. (CCH) ¶ 96,113 (S.D.N.Y.) (Lasker, J) (see 13 Class Action Rep.
460 (1990))
In re Borland I & II Securities Litigation, Nos. 95-2295 & 95-669 ((N.D. Cal. Sept. 20, 1999) [Kaplan v.
Kahn; Crook v. Kahn]
Bosco v. Scott, No. 00-901 (M.D.N.C. May 7 & 17, 2002)
Bowen v. Southtrust Bank of Alabama, 760 F. Supp. 889 (M.D. Ala. 1991) (see 14 Class Action Rep. 179
(1991))
Bowles v. Washington Dep't of Retirement Sys., 847 P.2d 440, 452-453 (Wash. 1993)
Bowling v. Pfizer, Inc., 922 F. Supp. 1261 (S.D. Ohio 1996), 927 F. Supp. 1036 (S.D. Ohio 1996), aff'd, 102
F.3d 777 (6th Cir. 1996)
Boyet v. Top Brass Enterprises, Inc., No. 85-0162 (E.D.N.Y. 1990) (see 13 Class Action Rep. 388 (1990))
Bragger v. Trinity Capital Enterprise Corp., 1993 WL 287626 (S.D.N.Y. July 23, 1993) (see 16 Class Action Rep. 577 (1993))
Branca v. Paymentech, Inc., No. 97-2507 (N.D. Tex. Jan. 4, 2001) (see 22 Class Action Rep. 260 (2001))
Braun v. Culp, 1985 Fed. Sec. L. Rep. (CCH) ¶ 92,093 (M.D.N.C.) (see 13 Class Action Rep. 388 (1990))
Breiterman v. Roper Corp., 1990 Fed. Sec. L. Rep. (CCH) ¶ 94,885 at 94,832-94,833 (S.D.N.Y.) (see 13
Breslow v. Prudential-Bache Properties, Inc., No. 91-1230 (N.D. Ill. Jan. 15, 1992) (Kocoras, J) (see 16
Brewer v. Southern Union Co., 607 F. Supp. 1511 (D. Colo. 1984) (see 13 Class Action Rep. 476 (1990))
Brewster v. City of Dallas, No. DV98-08100 (Tex. Dist. Ct. Dallas Co. Jan. 10, 2003) (see 24 Class Action
Rep. 121 (2003))
Briskman v. Upjohn Co., No. 86-3625 (E.D. Pa. July 1, 1988 & Nov. 20, 1989) (Bechtle, J) (see 13 Class
Action Rep. 372 (1990))
Brogren v. Pohlad, Nos. 3-93-714 & 3-94-20 (D. Minn. Dec. 3, 1998) [MEI Diversified] (see 20 Class Action Rep. 396 (1999))
Brown v. Steinberg, 1991 Fed. Sec. L. Rep. (CCH) ¶ 95,680 (S.D.N.Y. 1990) (Motley, J) (see 13 Class Action Rep. 352 (1990))
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Brucker v. Thyssen-Bornemisza Europe N.V., No. 74-5755 (S.D.N.Y. Sept. 14, 1977) (Stewart, J), as noted
in N.Y.L.J., Sept. 1, 1977 (see 13 Class Action Rep. 322 (1990))
Bruno v. Pacific Holding Corp., No. 11983/77 (N.Y. Sup. Ct. N.Y. Co. Mar. 16, 1978) (Greenfield, J), as
noted in N.Y.L.J., Mar. 21, 1978 (see 13 Class Action Rep. 442 (1990))
Bruno v. Southdown, Inc., 1981 Fed. Sec. L. Rep. (CCH) ¶ 97,977 (S.D.N.Y.) (Lowe, J) (see 13 Class Action Rep. 408 (1990))
Buchet v. ITT Consumer Fin. Corp., No. 3-91 CIV 809 (D. Minn. Jan. 17, 1995) (Alsop, J) (see 17 Class
Action Rep. 666 (1994))
Bullock v. Kircher, 84 F.R.D. 1 (D.N.J. 1979) (Brotman, J) (see 13 Class Action Rep. 340 (1990))
Burger v. CPC Int'l, Inc., 76 F.R.D. 183 (S.D.N.Y. 1977) (MacMahon, J) (see 13 Class Action Rep. 398
(1990))
Burney v. Thorn Americas, Inc., No. 97-1596 (Wis. Cir. Ct. Racine Co. Mar. 19, 1999)
Burstein v. Applied Extrusion Technologies, Inc., No. 92-12166 (D. Mass. Aug. 15, 1995) (Saris, J) (see 18
Bush v. Rewald, No. 84-0881 (D. Hawaii Oct. 23, 1986) (Pence, J) (see 13 Class Action Rep. 460 (1990))
Butkus v. Chicken Unlimited Enterprises, Inc., No. 71-1607 (N.D. Ill. May 29, 1975) (see 13 Class Action
Rep. 520 (1990))
Butler v. Northstar Health Servs., Inc., No. 96-701 (W.D. Pa. Nov. 10, 1997)
In re California Federal Bank, FSB Securities Litigation, No. 93-4497 (C.D. Cal. Feb. 19, 1997)
Camden I Condominium Ass'n v. Dunkle, 946 F.2d 768 (11th Cir. 1991), on remand, No. 83-8265 (S.D.
Fla.) (Dubina, J, w/Tjoflat & Williams, JJ) (see 17 Class Action Rep. 223 (1994))
Cardiology Assocs., P.C. Pension Plan Trust v. National Intergroup, Inc., No. 85-3048 (S.D.N.Y. Feb. 13,
1987) (Walker, J) (see 13 Class Action Rep. 402 (1990))
Carley Capital Group v. Deloitte & Touche, L.L.P., No. 97-3183 (N.D. Ga. Nov. 21, 2000) [Medaphis
Corp.] (see 21 Class Action Rep. 745 (2000))
Carlon v. Jones Intercable, Inc., No. 94-275 (D. Colo. Nov. 8, 1994) (Nottingham, J) (see 18 Class Action
Rep. 186 (1995))
Carlson v. General Motors Corp., No. 2:86-2674-1 (D.S.C. Nov. 22, 1991, Nov. 9, 1992, Apr. 12, 1993,
Sept. 28, 1993 & Oct. 13, 1993) (Hawkins, J) (see 16 Class Action Rep. 580 (1993))
Chalverus v. Pegasystems, Inc., No. 97-12570 (D. Mass. Dec. 19, 2000) (see 22 Class Action Rep. 260
(2001))
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Charal v. Andes, 88 F.R.D. 265 (E.D. Pa. 1980) (Bechtle, J) (see 13 Class Action Rep. 330 (1990))
Chatelain v. Prudential-Bache Securities, Inc., 805 F. Supp. 209, 215-216 (S.D.N.Y. 1992) (Lowe, J) (see
Chill v. Capitol Bancorporation, No. 87-0924 (D. Mass. Sept. 19, 1989) (Harrington, J) (see 13 Class Action Rep. 456 (1990))
Christian Fellowship Foundation Peace United Church of Christ v. American Government Income Portfolio, Inc., No. 95-987 (W.D. Wash. Aug. 20, 1997)
Christiansen v. Medi-Mail, Inc., No. 95-0052 (S.D. Cal. Oct. 28, 1996)
Cimarron Pipeline Construction, Inc. v. National Council on Compensation Insurance, Nos. 89-822 &
89-1186 (W.D. Okla. June 7, 1993) (Thompson, J) (see 16 Class Action Rep. 472 (1993))
Ciszek v. Castle & Cooke Homes, Inc., No. 94-6582 (C.D. Cal. June 26, 1995)
Clark v. Cameron-Brown Co., 1981 Fed. Sec. L. Rep. (CCH) ¶ 98,014 (M.D.N.C.) (Gordon, J) (see 13 Class
Action Rep. 366 (1990))
Clark v. Ford Motor Credit Co., No. 674525-7 (Cal. Super. Ct. Alameda Co. Dec. 15, 1993)(Lambden, J) (
Clen v. Merryman, No. 98-412 (D. Nev. May 23, 2001) (see 22 Class Action Rep. 958 (2001))
Cohen v. Apache Corp., 1993 WL 126560 (S.D.N.Y. Apr. 21, 1993) (Leval, J) (see 16 Class Action Rep. 351
(1993))
Cohen v. Uniroyal, Inc., No. 76-2989 (E.D. Pa. Mar. 2, 1981) (Giles, J) (see 13 Class Action Rep. 388
(1990))
Colaprico v. Sun Microsystems, Inc., No. 90-20610 (N.D. Cal. June 2, 1993) (Infante, Mg), as noted in L.A.
Daily J., June 7, 1993, at 3 (see 16 Class Action Rep. 739 (1993))
Cole v. Schenley Indus., Inc., No. 71-1028 (S.D.N.Y. May 30, 1979) (Owen, J), as noted in N.Y.L.J., June 7,
Commins v. Johnson & Higgins, Inc., No. 88-0364 (N.D. Cal. Sept. 28, 1989) (Vukasin, J) (see 13 Class
Action Rep. 452 (1990))
Conley v. Bank One, Youngstown, N.A., No. 4:91-0251 (N.D. Ohio Apr. 19, 1994) (see 18 Class Action
Rep. 186 (1995))
Continental Assurance Co. Separate Account (B) v. Continental Assurance Co., No. 75-1807 (N.D. Ill.
Oct. 1976) (see 13 Class Action Rep. 420 (1990))
Cook v. McCarron, 1997 WL 47448 (N.D. Ill. Jan. 30, 1997)
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Cooper v. Lewson, 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,329 (S.D.N.Y.) (see 13 Class Action Rep. 464
(1990))
Cooperman v. Lee, No. CA001093 (Cal. Super. Ct. Los Angeles Co. Nov. 18, 1988) (Cooperman, J) (see 13
Copland v. Fischer & Porter Co., No. 93-8366-09-5 (Pa. Ct. C.P. Bucks Co. Dec. 13, 2001) (see 23 Class
Action Rep. 458 (2002))
Cosgrove v. Sullivan, 759 F. Supp. 166 (S.D.N.Y. 1991) (Goettel, J) (see 15 Class Action Rep. 384 (1992))
Cox v. Shell Oil Co., 1995 WL 775363 (Tenn. Ch. Obion Co. Nov. 17, 1995) (see 18 Class Action Rep. 536
(1996))
Crouch v. Tenneco, Inc., 853 S.W.2d 643 (Tex. App. 1993) (Davidson, J) (see 17 Class Action Rep. 669
(1994))
Croucher v. MidCon Corp. Employee Stock Ownership Plan Administrative Committee, No. 98-4159 (S.D.
Tex. Mar. 15, 2001) (see 22 Class Action Rep. 956 (2001))
Cross v. Dickstein Partners, Inc., Nos. 95-6247, 95-9496, 95-9343 & 95-6548 (S.D.N.Y. Dec. 17, 1999)
[Hills Stores] (see 21 Class Action Rep. 261 (2000))
Cruise v. Condor Servs., Inc., No. 94-832 (D. Ariz. Mar. 11, 1996)
Cumberland Farms, Inc. v. Browning-Ferris Indus., Inc., No. 87-3717 (E.D. Pa. Dec. 18, 1990)) (see 14
Curran v. Oeberst, Nos. 85-1685, 86-1314, 87-0342, 87-0833, 87-1250, 87-1476, 88-0308 & 89-0396 (E.D.
Cal. July 21, 1989) (see 13 Class Action Rep. 332 (1990))
Cytryn v. Cook, No. 89-20801 (N.D. Cal. May 1, 1992) (Infante, Mg) (see 16 Class Action Rep. 472 (1993))
Daniels v. First Union National Bank of Florida, No. 94-125 (M.D. Fla. Nov. 20, 1996) (Schlesinger, J)
Danton v. Cymaticolor Corp., No. 84-2866 (D.N.J. Sept. 28, 1987) (Thompson, J) (see 13 Class Action Rep.
422 (1990))
Davies v. Continental Bank, MDL No. 745 (E.D. Pa. Feb. 24, June 9 & June 28, 1989) (Newcomer, J) (see
Davis v. Cullinet Software, Inc., No. 85-3204 (D. Mass. Sept. 21, 1993) (Wolf, J) (see 16 Class Action Rep.
739 (1993))
Day v. NLO, Inc., No. C-1-90-67 (S.D. Ohio May 23, 1995 & Nov.3, 1995)
DeLano v. Reddi Brake Supply Corp., No. 95-7444 (C.D. Cal. Dec. 9, 1996)
De Milia v. Cybernetics Int'l Corp., No. 713696 (S.D.N.Y. 1976) (Lasker, J) (see 13 Class Action Rep. 412
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(1990))
Decker v. Security Pacific Corp., Nos. 90-6497 & 91-2409 (C.D. Cal. Nov. 16, 1993) (Takasugi, J) (see 16
Dekro v. Stern Bros. & Co., 571 F. Supp. 97 (W.D. Mo. 1983) (Stevens, J) (see 13 Class Action Rep. 354
(1990))
Delay v. Hurd Millwork Co., No. 97-07371-0 (Wash. Super. Ct. Spokane Co. Dec. 18, 1998)
Del Noce v. Delyar Corp., No. 72-1819 (S.D.N.Y. 1978) (Brieant, J), as noted in N.Y.L.J., May 24, 1978 (
Delgozzo v. Blueray Sys., No. L-04603-88 (N.J. Super. Ct. Camden Co. Jan. 22, 1996) (Supnick, J) (see 18
Dennis v. Saks & Co., 1978-1 Trade Cases (CCH) ¶ 61,871 (S.D.N.Y.) (Werker, J) (see 13 Class Action
Rep. 494 (1990))
Denny v. Carey, No. 76-259 (E.D. Pa. Sept. 15, 1981) (see 13 Class Action Rep. 388 (1990))
DePriest v. McCaw Cellular Communications, Inc., No. 90-1112 (D.D.C. Jan. 17, 1996)
DeSario v. Industrial Excess Landfill, Inc., No. 89-570 (Ohio Ct. C.P. Stark Co. Aug. 30, 1996) (see 19
Class Action Rep. 475 ((1998))
Detroit v. Grinnell Corp., 1976-1 Trade Cas. (CCH) ¶ 60,913 (S.D.N.Y.) (Metzner, J), rev'd, 560 F.2d 1093
(2d Cir. 1977), 1978-1 Trade Cas. (CCH) ¶ 61,111 (2d Cir.) (Moore, J, w/ Mulligan & Clark, JJ) (see 13 Class
Action Rep. 488 (1990))
Deutsch v. Cogan, No. 8808 (Del. Ch. New Castle Co. Nov. 4, 1993) (Hartnett, J) (see 17 Class Action Rep.
124 (1994))
DiCicco v. American Eagle Outfitters, Inc., No. 95-1937 (W.D. Pa. Oct. 12, 1996)
Di Giacomo v. Plains All American Pipeline, No. 99-4137 (S.D. Tex. Dec. 18, 2001) (see also Koplovitz v.
Plains Resources, Inc., No. 99-4212 (S.D. Tex. Dec. 18, 2001) (see 23 Class Action Rep. 304 (2002))
Dittmer v. Deloitte & Touche, LLP, No. 00-131 (M.D. Fla. Apr. 23, 2002) (see 23 Class Action Rep. 458
(2002))
Dixie Brewing Co. v. John Barth, Inc., No. 84-4112 (E.D. Pa. Jan. 27, 1986) (Hannum, J) (see 13 Class
Action Rep. 500 (1990))
Donlevy v. First Commercial Mortgage Co., No. 96-11401 (D. Mass. Oct. 8, 1998) (see 20 Class Action
Rep. 638 (1999))
Dorey Corp. v. E.I. duPont de Nemours & Co., 1977-1 Trade Cas. (CCH) ¶ 61,313 (S.D.N.Y.) (Bonsal, J) (
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Dorfman v. First Boston Corp., 70 F.R.D. 366 (E.D. Pa. 1976) (Lord, J) (see 13 Class Action Rep. 376
(1990))
Draney v. Wilson, Morton, Assaf & McElligott, 1985 Fed. Sec. L. Rep. (CCH) ¶ 92,360 (D. Ariz.) (Hardy,
J) (see 13 Class Action Rep. 456 (1990))
Duban v. Diversified Mortgage Investors, 87 F.R.D. 33 (S.D.N.Y. 1980) (Gagliardi, J) (see 13 Class Action
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Dunlop v. Bowers, No. 569577 (Cal. Super. Ct. Orange Co. July 24, 1990) (Rylaarsdam, J) (see 13 Class
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Dworsky v. Bank Shares, Inc., No. 3-93-13 (D. Minn. May 3, 1993) (Magnuson, J) (see 16 Class Action
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Dyson v. Flagstar Corp., No. 93-1503 (D. Md. Aug. 1, 1994) (Chasanow, J) (see 19 Class Action Rep. 72-73
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Easton & Co. v. Anderson, No. CA-000756 (Cal. Super. Ct. Los Angeles Co. June 12, 1989) (Cooperman,
Edmonds v. U.S., 658 F. Supp. 1126 (D.S.C. 1987) (Blatt, J) (see 11 Class Action Rep. 377 (1988))
Eltman v. Grandma Lee's, Inc., 1986 Fed. Sec. L. Rep. (CCH) ¶ 92,798 at 93,906-93,907 (E.D.N.Y.)
(Glasser, J) (see 13 Class Action Rep. 364 (1990))
Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 248-250 (S.D. Ohio 1991)
(Smith, J) (see 14 Class Action Rep. 375 (1991))
Entin v. Barg, 412 F. Supp. 508 (E.D. Pa. 1976) (Becker, J) (see 13 Class Action Rep. 396 (1990))
Epstein v. Itron, Inc., No. 97-214 (E.D. Wash. Nov. 19, 1999)
Erie County Retirees Ass'n v. County of Erie, 192 F. Supp. 2d 369 (W.D. Pa. 2002)
Esden v. Retirement Plan of the First National Bank of Boston, No. 97-114 (D. Vt. Mar. 21, 2001) (see 22
Escamilla v. ASARCO, Inc., No. 91-5716 (Colo. Dist. Ct. City & Co. of Denver Nov. 5, 1993) (Hoffman, J)
Evans v. BCI Coca-Cola Bottling Co. of Los Angeles, No. BC 220525 (Cal. Super. Ct. Los Angeles Co.
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Fantel v. Osrow, No. 87-0875 (E.D.N.Y. June 22, 1988) (Nickerson, J) (see 13 Class Action Rep. 414
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Case
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Fecht v. Conseco, Inc., No. 92-699 (S.D. Ind. Nov. 16, 1998)
Federman v. Empire Fire & Marine Ins. Co., 1976 Fed. Sec. L. Rep. (CCH) ¶ 95,418 (S.D.N.Y.)
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Feeney v. Cam-Net Communications Network, Inc., No. 94-6431 (May 16, 1996)
Feeney v. The Ultimate Corp., No. 91-2953 (D.N.J. Feb. 23, 1998)
Feldman v. Glaze, No. 87-20723 (N.D. Cal. June 4, 1990) (Ingram, J) (see 13 Class Action Rep. 462 (1990))
Feldman v. Hanley, No. 69 Civ. 772 (S.D.N.Y. Mar. 6, 1975) (Lasker, J), as noted in N.Y.L.J., Mar. 11,
Feldman v. Motorola, Inc., No. 90-5887 (N.D. Ill. June 28, 1995) (Norgle, J) (see 19 Class Action Rep. 66
(1997))
Feuerstein v. Burns, 569 F. Supp. 268 (S.D. Cal. 1983) (Keep, J) (see 13 Class Action Rep. 390 (1990))
Fine v. Houston Oil Trust, No. 82-551 (S.D. Tex. Dec. 16, 1986) (Bue, J) (see 13 Class Action Rep. 272
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Finkel v. O'Brien, No. 85-2539 (D.N.J. Mar. 27, 1990) (Politan, J) (see 13 Class Action Rep. 388 (1990))
First Eastern Corp. v. Mainwaring, No. 92-1176 (E.D. Pa. Nov. 18, 1994) (Buckwalter, J) (see 18 Class
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First Interstate Bank of Nevada N.A. v. Nat'l Republic Bank of Chicago, No. 80-C-6401 (N.D. Ill. Feb. 12,
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Fischer v. International Tel. & Tel. Corp., 78 F.R.D. 237 (E.D.N.Y. 1978) (Platt, J) (see 13 Class Action
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Fisher v. Netrix Corp., No. 93-401 (E.D. Va. Nov. 22, 1993) (Cacheris, J) (see 16 Class Action Rep. 738
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Florin v. NationsBank of Georgia, N.A., 60 F.3d 1245 (7th Cir. 1995) (Kanne, J, w/Eschbach & Rovner, JJ)
Forbush v. J.C. Penney Co., No. 3:90-2719 (N.D. Tex. Sept. 20, 1995)
Forman v. Sun Co., No. 9805-003157 (Pa. Ct. C.P. Philadelphia Co. Apr. 7, 2000) (see 21 Class Action
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Forsyth v. Humana, Inc., No. 89-0249 (D. Nev. Nov. 30, 1999) (see 21 Class Action Rep. 257 (2000))
Fossett Corp. v. Gearhart, No. 4-88-715 (N.D. Tex. Sept. 22, 1989) (see 13 Class Action Rep. 358 (1990))
Fournier v. PFS Investments, Inc., 997 F. Supp. 828 (E.D. Mich. 1998) [Basic Energy and Affiliated Resources]
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Fox v. American Cyanamid Co., No. 19,996 (Tenn. Ch. Ct. Obion Co. June 2, 1999) (see 21 Class Action
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Frankenstein v. McCrory Corp., 425 F. Supp. 762 (S.D.N.Y. 1977) (see 13 Class Action Rep. 348 (1990))
Franklin v. First Union Corp., Nos. 99-344 & 99-610 (E.D. Va. June 13, 2001)
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Friedberg v. Discreet Logic, Inc., No. 96-11232 (D. Mass. Nov. 25, 1997 & Dec. 22, 1998)
Friedlander v. Barnes, 1986 Fed. Sec. L. Rep. (CCH) ¶ 92,754 (S.D.N.Y.) (Carter, J) (see 13 Class Action
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Friedman v. Colgate-Palmolive Co., 1984 Fed. Sec. L. Rep. (CCH) ¶ 91,494 (E.D.N.Y.) (Sifton, J) (see 13
Friedman v. Lansdale Parking Auth., No. 92-7257 (E.D. Pa. May 9, 1994), 1995 Fed. Sec. L. Rep. (CCH) ¶
98,676 (E.D. Pa.) (Yohn, J) (see 18 Class Action Rep. 334 (1996))
Frome v. ABC Int'l, Inc., 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,598 (S.D.N.Y.) (Sand, J) (see 13 Class Action
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Galdi Securities Corp. v. Propp, 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,233 (S.D.N.Y. 1979) (Lowe, J) (see 13
Ganesh, L.L.C. v. Computer Learning Centers, Inc., No. 98-859 (E.D. Va. July 9, 1999) (see 20 Class Action Rep. 640 (1999))
Garcia v. General Motors Corp., No. L-4394-95 (N.J. Super. Ct. Bergen Co. Aug. 3, 2000); Bishop v. General Motors Corp., No. L-01756-95 (N.J. Super. Ct. Burlington Co. Aug. 3, 2000) (see 22 Class Action Rep. 91
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Garrity v. Caribbean Cigar Co., No. 97-3802 (S.D. Fla. Aug. 14, 2001) (see 22 Class Action Rep. 605
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Gaskill v. Gordon, 1995 WL 746091 (N.D. Ill. Dec. 14, 1995), on reconsideration, 942 F. Supp. 382 (N.D.
Ill. 1996) (Williams, J)
Gelfand v. Hygrade Food Products Corp., 1977 Fed. Sec. L. Rep. (CCH) ¶ 95,926 (S.D.N.Y.) (Conner, J),
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Gelfer v. Pegasystems, Inc., No. 98-12527 (D. Mass. Dec. 19, 2000) (see 22 Class Action Rep. 260 (2001))
Gelobter v. Bressler, 1991 Del. Ch. LEXIS 186 (Del. Ch. New Castle Co. Nov. 6, 1991) (Jacobs, J) (see 15
Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 700 F. Supp. 208 (S.D.N.Y. 1988), 741 F. Supp. 84
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Georgallas v. Martin Color-fi, Inc., No. 95-0648 (D.S.C. Sept. 10, 1997) (see 20 Class Action Rep. 298
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Gergely v. VanVoorhis, No. 87-469 (Ohio Ct. C.P. Erie Co. Dec. 7, 1994) [Funtime, Inc.]
Gerstein v. Micron Technology, Inc., No. 891262 (D. Idaho Sept. 8, 1993), No. 89-1262 (D. Idaho 1994),
1994 Fed. Sec. L. Rep. (CCH) ¶ 98,334 at 90,305 (D. Idaho) (Ryan, J) (see 18 Class Action Rep. 184 (1995))
Giarraputo v. UNUMProvident Corp., No. 99301 (D. Me. June 27, 2002) (see 23 Class Action Rep. 626
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Gilbert v. First Alert, Inc., 1998 WL 142406 (N.D. Ill. Mar. 24, 1998) (see 20 Class Action Rep. 535
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Gilman v. Independence Blue Cross, 1997 WL 633568 (E.D. Pa. Oct. 6, 1997) (see 20 Class Action Rep.
388 (1999))
Gilman v. Mohawk Data Sciences Corp., No. 71 Civ. 4742 (S.D.N.Y. May 3, 1976) (Metzner, J), as noted in
N.Y.L.J., May 7, 1976 (see 13 Class Action Rep. 352 (1990))
Gissen v. Colorado Interstate Corp., 1975 Fed. Sec. L. Rep. (CCH) ¶ 95,012 (D. Del.) (Latchum, J) (see 13
Gluck v. Cellstar Corp., No. 96-1353 (N.D. Tex. Jan. 25, 1999) (see 21 Class Action Rep. 156 (2000))
Gogola v. FirstSouth Savings and Loan of Pittsburgh, No. 1121 (Pa. Ct. C.P. Fayette Co. Mar. 31, 1993)
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Goldberg v. Touche, Ross & Co., No. 74-1483 (S.D.N.Y. June 26, 1979) (see 13 Class Action Rep. 346
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F.3d 43 (2d Cir. 2000) (see 21 Class Action Rep. 816 (2000))
Golden v. Shulman, 1988 Fed. Sec. L. Rep. (CCH) ¶ 94,060 at 90,953-90,954 (E.D.N.Y.) (Sifton, J) (see 13
Golden v. U.S. Diagnostic, Inc., Nos. 97-8010 & 97-8017 (S.D. Fla. Dec. 7 & 21, 1998)
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Goldfarb v. Virginia State Bar, No. 75-72 (E.D. Va. 1977) (Bryan, J) (see 13 Class Action Rep. 508 (1990))
Goldsmith v. Pyramid Communications, Inc., No. 72-126 (S.D.N.Y. Jan. 22, 1975) (Brieant, J), as noted in
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Goldsmith v. Technology Solutions Co., No. 92-4374 (N.D. Ill. Oct. 10 & 18, 1995) (Guzman, Mg) (see 19
Goldstein v. Alodex Corp., No. 71-1857 (E.D. Pa. Dec. 7, 1973) (Broderick, J) (see 13 Class Action Rep.
440 (1990))
Goldstein v. Cytogen Corp., No. 92-3960 (D.N.J. Nov. 29, 1994) (Hughes, Mg.) (see 18 Class Action Rep.
80 (1995))
Goldstein v. Levin-Townsend Computer Corp., 1974 Fed. Sec. L. Rep. (CCH) ¶ 94,833 (S.D.N.Y.) (see 13
Goodman v. Streufert, No. 92-1671 (D. Colo. Dec. 1993) (Weinshienk, J) (see 17 Class Action Rep. 124
(1994))
Gordon v. American Adjustable Rate Term Trust, Nos. 4-95-666 & 4-95-667 (D. Minn. Sept. 3, 1996 &
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Gordon v. Floating Point Systems, Inc., No. 86-952 (D. Ore. Jan. 29, 1990) (Redden, J) (see 13 Class Action Rep. 300 (1990))
Gordon v. Hunt, No. 82-1318 (S.D.N.Y. Aug. 16 & Oct. 1, 1990) (Lasker, J) (see 13 Class Action Rep. 272
(1990))
Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994)
Gould v. American-Hawaiian Steamship Co., Nos. 3707 & 3722 (D. Del. June 21, 1976) (Wright, J) (see 13
Gould v. Harris, No. 95-2584 (C.D. Cal. Jan. 14, 2000) [Guardian Bancorp] (see 21 Class Action Rep. 426
(2000))
Gracy Fund, L.P. v. EFX Corp., No. 98-1808 (N.D. Tex. Dec. 28, 2000) (see 22 Class Action Rep. 260
(2001))
Grad v. Memorex Corp., No. 71-1685 (N.D. Cal. 1975) (Williams, J) (see 13 Class Action Rep. 454 (1990))
Green v. Occidental Petroleum Corp., No. 71-591 (C.D. Cal. Nov. 7, 1979) (Kelleher, J) (see 13 Class Action Rep. 438 (1990))
Green v. Wolf Corp., 66 F.R.D. 568 (S.D.N.Y. 1976) (Edelstein, J) (see 13 Class Action Rep. 420 (1990))
Greene v. Emersons, Ltd., 1987 Fed. Sec. L. Rep. (CCH) ¶ 93,263 (S.D.N.Y.) (Haight, J) (see 13 Class Action Rep. 394 (1990))
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Greenfield v. Compuserve Corp., No. 96-06-4810 (Ohio Ct. C.P. Franklin Co. Dec. 20, 2000) (see 22 Class
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Greenfield v. Flying Diamond Oil Corp., 1984 Fed. Sec. L. Rep. (CCH) ¶ 91,495 (S.D.N.Y.) (Haight, J) (see
Greenfield v. Footwear Investors, Inc., 1986 WL 10806 (E.D. Pa. Sept. 30, 1986) (Broderick, J) (see 13
Greenfield v. Mattel, Inc., No. 73-515 (C.D. Cal. Aug. 12, 1977) (Lucas, J) (see 13 Class Action Rep. 274
(1990))
Gregory v. Producer's Brokerage Co., No. 83-982 (7th Cir. June 5, 1987) (see 13 Class Action Rep. 348
(1990))
Grier v. Chase Manhattan Automotive Fin. Co., 2000 WL 175126 at *7-*8 (E.D. Pa. Feb. 16, 2000) (see 21
Grimm v. Whitney-Fidalgo Seafoods, Inc., 458 F. Supp. 7 (S.D.N.Y. 1978) (Brieant, J) (see 13 Class Action
Rep. 424 (1990))
Grossman, Faber & Miller v. Cable Funding Corp., 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,513 (D. Del.)
(Stapleton, J) (see 13 Class Action Rep. 462 (1990))
Grossman v. Microsoft Corp., No. 89-326 (W.D. Wash. June 28, 1990) (Coughenour, J) (see 13 Class Action Rep. 460 (1990))
Grunin v. International House of Pancakes, 513 F.2d 114 (8th Cir. 1975) (Stephenson, J, w/Lay & Vogel,
JJ) (see 13 Class Action Rep. 518 (1990))
Gunter v. Ridgewood Energy Corp., No. 95-438 (D.N.J. Aug. 6, 2001) (see 23 Class Action Rep. 306
(2002))
Guthertz v. Diaz, Nos. 84-4514 & 84-4175 (D. Md. Oct. 14, 1988) (Motz, J) (see 13 Class Action Rep. 414
(1990))
Guthrie County State Bank v. Mahlmann, 1993 WL 50854 (N.D. Ill. Feb. 24, 1993) (Nordberg, J) (see 16
Haitz v. Meyer, No. 572968-3 (Cal. Super. Ct. Alameda Co. Aug. 20, 1990) (Girard, J) (see 13 Class Action
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Hal Bloomberg Trust v. Gencor Industries, Inc., No. 99-106 (M.D. Fla. Apr. 23, 2002) (see 23 Class Action Rep. 458 (2002))
Hall v. Security Planning Serv., Inc., 371 F. Supp. 7 (D. Ariz. 1974) (Muecke, J), 419 F. Supp. 405 (D. Ariz. 1976), 462 F. Supp. 1058 (D. Ariz. 1978), sub nom. De Marco v. Security Planning Serv., Inc., 462 F.
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Case
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Haltman v. Aura Systems, Inc., Nos. 92-3388, 92-3592 & 92-4563 (C.D. Cal. Aug. 25, 1994) (Marshall, J) (
Harman v. Lyphomed, Inc., 734 F. Supp. 294 (N.D. Ill. 1990) (see 13 Class Action Rep. 306 (1990)), rev'd
in part, vacated in part & remanded, 945 F.2d 969 (7th Cir. 1991) (Cudahy, J, w/Coffey & Flaum, JJ), on remand, 787 F. Supp. 772 (N.D. Ill. 1992)
Harmsen v. Smith, 1985 Fed. Sec. L. Rep. (CCH) ¶ 92,379 (S.D. Cal.) (Enright, J) (see 13 Class Action
Rep. 298 (1990))
Harris v. E.F. Hutton Group, Inc., 1993 WL 541661 (S.D.N.Y. Dec. 29, 1993)
Harris v. Republic Airlines, Inc., 1991 U.S. Dist. LEXIS 16461 (D. Minn. Nov. 12, 1991) (Rosenbaum, J) (
Hartings v. American Express, No. 88-0744 (W.D. Pa. Jan. 31, 1994)
Hawk Industries, Inc. v. Bausch & Lomb, Inc., 1975 Fed. Sec. L. Rep. (CCH) ¶ 95,306 (S.D.N.Y.)
(MacMahon, J) (see 13 Class Action Rep. 444 (1990))
Haynes v. Shoney's, Inc., 1993 WL 19915 (N.D. Fla. Jan. 25, 1993)
Head v. NetManage, Inc., No. 97-4385 (N.D. Cal. Nov. 13, 2000) (see 22 Class Action Rep. 405 (2001))
Heartland Communications, Inc. v. Sprint Corp., No. 94-2370 (D. Kan. Oct. 17, 1996) (see 19 Class Action
Rep. 598 (1998))
Heckmann v. Ahmanson, No. CA 000851 (Cal. Super. Ct. Los Angeles Co. Sept. 15, 1989) (Schoettler, J) (
Hedberg v. Schanck, 1985 Fed. Sec. L. Rep. (CCH) ¶ 92,384 (N.D. Ill.) (Moran, J) (see 13 Class Action
Rep. 450 (1990))
Heideman v. Toreson, No. 86-20024 (N.D. Cal. Dec. 20, 1989) (McCue, Mg.) (see 13 Class Action Rep. 322
(1990))
Heit v. Amrep Corp., 82 F.R.D. 130 (S.D.N.Y. 1979) (Lasker, J) (see 13 Class Action Rep. 460 (1990))
Heliotrope General, Inc. v. Sumitomo Corp., No. 701679 (Cal. Super. Ct. San Diego Co. Feb. 8, 1999) (see
Helwig v. Vencor, Inc., No. 97-835 (W.D. Ky. May 13, 2002) (see 23 Class Action Rep. 626 (2002))
Hemley v. American Honda Motor Co., No. 72-4127 (S.D.N.Y. Sept. 28, 1976) (Owen, J) (see 13 Class Action Rep. 518 (1990))
Henderson v. First Interstate Bank of California, No. 91-01138 (Cal. Super. Ct. Contra Costa Co. Sept. 24,
1992) (Marchiano, J) (see 17 Class Action Rep. 428 (1994))
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Henderson v. Scientific-Atlanta, Inc., No. 88-2208 (N.D. Ga. Jan. 31, 1994) (Vining, J)
Herbst v. International Tel. & Tel. Corp., No. 15,155 (D. Conn. May 31, 1977) (Blumenfeld, J) (see 13
Hermann v. Atlantic Richfield Co., No. 71-842 (W.D. Pa. Sept. 21, 1978) (Ziegler, J) (see 13 Class Action
Rep. 506 (1990))
HEW Corp. v. Tandy Corp., 1979-2 Trade Cases (CCH) ¶ 63,065 (D. Mass.) (Freedman, J) (see 13 Class
Action Rep. 488 (1990))
Hinckley v. E.I. DuPont De Nemours & Co., 583 F. Supp. 11 (E.D. Pa. 1983) (Weiner, J) (see 13 Class Action Rep. 344 (1990))
Hindler v. Telequest, Inc., No. 89-0847 (S.D. Cal. Dec. 13, 1993) (McCue, Mg) (see 17 Class Action Rep.
125 (1994))
Hodge v. Franklin Select Realty Trust, No. 400905 (Cal. Super. Ct. San Mateo Co. June 19, 2000) (see 21
Hoefer & Arnett, Inc. v. Lehigh Press, Inc., 695 F. Supp. 832 (E.D. Pa. 1988) (Gawthrop, J) (see 13 Class
Action Rep. 354 (1990))
Hofer v. Capitol American Life Ins. Co., Docket 24, No. 336 (Wyo. Dist. Ct. Goshen Co. July 10, 1996, July 15, 1996 & Aug. 1, 1996) (Kautz, J) (see 19 Class Action Rep. 475 (1998))
Holden v. Burlington Northern, Inc., 665 F. Supp. 1398 (D. Minn. 1987)
Holton v. Rothschild, Nos. 83-3253, 84-1557, 84-1993 & 84-4081 (D. Mass. May 15, 1989) (McNaught, J) (
Hubner v. United Technologies Corp., 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,593 (S.D.N.Y.) (Conner, J) (see
Huddleston v. Herman & MacLean, No. 3-6677 (N.D. Tex. Oct. 16, 1979) (Taylor, J) (see 13 Class Action
Rep. 360 (1990))
Husni v. Financial Corp. of America, Nos. 84-6050 & 86-2296 (C.D. Cal. July 7, 1986) (Hatter, J) (see 13
Hwang v. Smith Corona Corp., No. 89-450 (D. Conn. Mar. 12, 1992) (Daly, J) (see 16 Class Action Rep.
351 (1993))
Hynes v. Mendel, Nos. 90-1204 & 92-573 (M.D. Ala. Oct. 12, 1993) (Clemon, J) (see 16 Class Action Rep.
472 (1993))
Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001)
In re Aames Fin. Corp. Securities Litigation, No. 97-6714 (C.D. Cal. Feb. 22, 1999) (see 20 Class Action
Case
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Rep. 641 (1999))
In re Acres Gaming Securities Litigation, No. 97-1848 (D. Nev. June 15, 2001) (see 22 Class Action Rep.
956 (2001))
In re A.L. Laboratories, Inc., No. 92-4694 (D.N.J. Feb. 16, 1994) (Ackerman, J) (see 17 Class Action Rep.
425 (1994))
In re Abbott Laboratories Securities Litigation, No. 92-C-3869 (N.D. Ill. July 3, 1995) (Aspen, J), 1995
Fed. Sec. L. Rep. (CCH) ¶ 98,973, 1995 WL 792083 (N.D. Ill. July 3, 1995) (Cooley, Sp. M.) (see 18 Class Action Rep. 329 (1996))
In re Activision Securities Litigation, 723 F. Supp. 1373 (N.D. Cal. 1989) (Patel, J) (see 13 Class Action
Rep. 346 (1990))
In re Aero Sys., Inc. Securities Litigation, Nos. 90-0083 & 90-0426 (S.D. Fla. Oct. 18, 1993) (Bandstra,
Mg) (see 17 Class Action Rep. 125 (1994))
In re Aetna, Inc. Securities Litigation, 2001 WL 20928 at *13-*16 (E.D. Pa. Jan. 4, 2001) (see 22 Class Action Rep. 91 (2001))
In re “Agent Orange” Prod. Liability Litigation, 611 F. Supp. 1296 (E.D.N.Y. 1985), aff'd in part, rev'd in
part & remanded, 818 F.2d 226 (2d Cir. 1987) (Miner, J, w/Van Graafeiland & Winter, JJ), on remand, 139
F.R.D. 581, 583-585 (E.D.N.Y. 1981)
In re AIA Indus., Inc. Securities Litigation, 1988 U.S. Dist. LEXIS 2952 (E.D. Pa. Mar. 31, 1988) (Ditter,
In re Air West Securities Litigation, MDL No. 177 (N.D. Cal. Sept. 5, 1979) (Zirpoli, J) (see 13 Class Action Rep. 356 (1990))
In re Alcatel Alsthom Securities Litigation, No. 99-MD-1263 (E.D. Tex. Dec. 18, 2001) (see 23 Class Action Rep. 117 (2002))
In re Alcoholic Beverages Litigation, 1983-1 Trade Cases (CCH) ¶ 65,342 (E.D.N.Y.) (Sifton, J) (see 13
In re American Integrity Securities Litigation, 1989 Fed. Sec. L. Rep. (CCH) ¶ 94,738 (E.D. Pa.), amended,
No. 86-7133 (E.D. Pa. Sept. 5, 1989) (Shapiro, J) (see 13 Class Action Rep. 326 (1990))
In re Amdahl Securities Litigation, No. 92-20609 (N.D. Cal. Sept. 10, 1993) (Infante, Mg) (see 17 Class
Action Rep. 122 (1994))
In re American Bank Note Holographics, Inc. Securities Litigation, 127 F. Supp. 418 (S.D.N.Y. 2001) (see
In re American Continental Corp./Lincoln Sav. & L. Securities Litigation, MDL No. 834 (D. Ariz. July 24,
1990) (see 15 Class Action Rep. 380 (1992))
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In re American Dental Laser, Inc. Securities Litigation, No. 92-71917 (E.D. Mich. Feb. 11, 1994) (Rosen,
J)
In re Amino Acid Lysine Antitrust Litigation, 918 F. Supp. 1190 (N.D. Ill. 1996), MDL No. 1083 & No.
95-7679 (N.D. Ill. Jan. 27, 1997)
In re Ampicillin Antitrust Litigation, 81 F.R.D. 395 (D.D.C. 1978), 526 F. Supp. 494 (D.D.C. 1981) (see 13
In re Anchor Securities Litigation, 1990 Fed. Sec. L. Rep. (CCH) ¶ 95, 481 (E.D.N.Y.), 1991 Fed. Sec. L.
Rep. (CCH) ¶ 96,078 (E.D.N.Y.) (Sifton, J) (see 13 Class Action Rep. 376 (1990))
In re Ancor Communications, Inc. Securities Litigation, No. 97-1696 (D. Minn. Feb. 5, 1999) (see 20
In re Anika Therapeutics Securities Litigation, No. 00-11127 (D. Mass. Oct. 22, 2001) (see 22 Class Action Rep. 957 (2001))
In re AnnTaylor Stores Securities Litigation, 1993 U.S. Dist. LEXIS 7053 (S.D.N.Y. May 25, 1993)
(Motley, J) (see 16 Class Action Rep. 472 (1993))
In re Anthracite Coal Antitrust Litigation, 81 F.R.D. 499 (M.D. Pa. 1979), 1979-1 Trade Cases ¶ 62,438
(M.D. Pa.) (Muir, J), aff'd in part, rev'd in part & remanded sub nom. Wilkes Barre Steam Heat Co. v. Blue
Coal Corp., No. 79-1416 (3d Cir. Dec. 13, 1979) (see 13 Class Action Rep. 496 (1990))
In re Antibiotics Antitrust Litigation, 410 F. Supp. 680, 704 (D. Minn. 1975) (Farmer/Veterinarian Classes)
(Lord, J) (see 13 Class Action Rep. 474 (1990))
In re Antibiotics Antitrust Litigation, 410 F. Supp. 706 (D. Minn. 1975) (Consumer Government Entities
Classes) ) (Lord, J) (see 13 Class Action Rep. 474 (1990))
In re Antibiotics Antitrust Litigation, 410 F. Supp. 722 (D. Minn. 1975) (Wholesaler Class) ) (Lord, J) (see
In re Apple Computer Securities Litigation, No. 84-20148 (N.D. Cal. Mar. 30, 1992) (Ware, J) (see 15
In re Arakis Energy Corp. Securities Litigation, 2001 Fed. Sec. L. Rep. (CCH) ¶ 91,646, 2001 WL
1590512 (E.D.N.Y. Oct. 31, 2001)
In re Archer Daniels Midland Co. Securities Litigation, No. 95-2287 (C.D. Ill. Apr. 11, 1997 & Oct. 30,
1998) (see 20 Class Action Rep. 533 ((1999))
In re Arizona Bakery Products Litigation, No. 74-208-A-PHX (D. Ariz. Oct. 28, 1976) (Muecke, J) ) (see
In re Arizona Dairy Prods. Antitrust Litigation, No. 74-569A (D. Ariz. Apr. 16, 1979), 1984-1 Trade Cases
(CCH) ¶ 65,816 (D. Ariz.) (Muecke, J) (see 13 Class Action Rep. 488 (1990))
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In re Arizona Escrow Fee Antitrust Litigation, 1982-83 Trade Cases (CCH) ¶ 65,198 (D. Ariz. 1982)
(Muecke, J) (see 13 Class Action Rep. 494 (1990))
In re Armored Car Antitrust Litigation, 472 F. Supp. 1357 (N.D. Ga. 1979), on reconsideration, No. 78-139
(N.D. Ga. June 7, 1979) (Freeman, J) (see 13 Class Action Rep. 486 (1990))
In re Art Materials Antitrust Litigation, 1984-1 Trade Cases (CCH) ¶ 65,815 (N.D. Ohio 1983)
(Krupansky, J) (see 13 Class Action Rep. 492 (1990))
In re Ascend Communications Securities Litigation, No. 97-8861 (C.D. Cal. Sept. 5, 2000) (see 22 Class
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In re Assisted Living Concepts, Inc. Securities Litigation, No. 99-167 (D. Ore. Nov. 30, 2000 & May 23,
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Cir. July 29, 1998) (unpublished)
In re Aurora Electronics Securities Litigation, No. 93-3292 (C.D. Cal. Sept. 5, 1995 & notice dated June
20, 1995) (see 18 Class Action Rep. 333 (1996))
In re Avant! Securities Litigation, No. 96-20132 (N.D. Cal. June 11, 2001) (see 22 Class Action Rep. 403
(2001))
In re Avant-Garde Computing, Inc. Securities Litigation, No. 85-4149 (D.N.J. July 30, 1990) (see 13 Class
Action Rep. 352 (1990))
In re Avon Products, Inc. Securities Litigation, 1992 Fed. Sec. L. Rep. (CCH) ¶ 97,061 (S.D.N.Y.) (Lasker,
In re Baldwin-United Corp. Litigation, 1986 Fed. Sec. L. Rep. (CCH) ¶ 92,918 (S.D.N.Y.) (see 13 Class
Action Rep. 264 (1990))
In re Bally Shareholder Litigation, No. 87-0373 (D.N.J. 1990) (see 13 Class Action Rep. 452 (1990))
In re Bank of New England Corp. Class Action Litigation, No. 89-2582 (D. Mass. Dec. 15, 1992) (Skinner,
In re Bank One Shareholders Class Actions, No. 00-880 (N.D. Ill. Apr. 9 & June 1, 2001) (see 22 Class
Action Rep. 957 (2001))
In re BankAmerica Corp. Securities Litigation, 228 F. Supp. 2d 1061 (E.D. Mo. 2002) (see 24 Class Action
Rep. 121 (2003))
In re Bankamerica Securities Litigation, No. 85-4779 (C.D. Cal. Apr. 26, 1988) (see 13 Class Action Rep.
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In re Belmac Corp. Securities Litigation, No. 92-1814 (M.D. Fla. Apr. 6, 1994) (see 17 Class Action Rep.
218 (1994))
In re Bestline Products Securities & Antitrust Litigation, MDL No. 162 (S.D. Fla. Feb. 25 & Mar. 22,
1977) (King, J) (see 13 Class Action Rep. 364 (1990))
In re Beverly Enterprises Securities Litigation, No. 88-01189 (C.D. Cal. June 16, 1992) (Lew, J) (see 16
In re Blech Securities Litigation (Weiss v. Blech), 2000 WL 661680 at *5-*6 (S.D.N.Y. May 19, 2000) (see
In re Boesky Securities Litigation (Pacific Lumber), 888 F. Supp. 551 (S.D.N.Y. 1995) (Pollack, J)
In re Bolar Pharmaceutical Co. Securities Litigation, No. 89-1726 (E.D.N.Y. Nov. 26, 1991), vacated &
remanded, 966 F.2d 731 (2d Cir. 1992), on remand, 800 F. Supp. 1091 (E.D.N.Y. 1992) (see 15 Class Action
Rep. 381 (1992))
In re Brand Name Prescription Drugs Antitrust Litigation, 2000-1 Trade Cas. (CCH) ¶ 72,835, 2000 WL
204112 (N.D. Ill. Feb. 10, 2000) (see 21 Class Action Rep. 423 (2000))
In re Brooktree Securities Litigation, 915 F. Supp. 193 (S.D. Cal. 1996)
In re Bulk Popcorn Antitrust Litigation, No. 3-89-710 (D. Minn. Sept. 3, 1992) (see 16 Class Action Rep.
580 (1993))
In re Businessland Securities Litigation, 1991 Fed. Sec. L. Rep. (CCH) ¶ 96,059 (N.D. Cal.) (see 14 Class
Action Rep. 264 (1991))
In re C&S/Sovran Shareholder Litigation, No. 91-1354 (N.D. Ga. May 27, 1994) (see 17 Class Action Rep.
425 (1994))
In re C.R. Bard, Inc. Securities Litigation, No. 90-948 (D.N.J. Oct. 17, 1991)
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274 (1990))
In re Capital Underwriters, Inc. Securities Litigation, 519 F. Supp. 92 (N.D. Cal. 1981) (see 13 Class Action Rep. 380 (1990))
In re Carbon Dioxide Antitrust Litigation, 1996-2 Trade Cas. (CCH) ¶ 71,522, 1996 WL 523534 (M.D. Fla.
July 15, 1996)
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In re Caterpillar, Inc. Securities Litigation, Nos. 90-1238 & 90-1242 (C.D. Ill. May 11, 1994)
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In re Cellular Technical Servs. Co., Inc. Securities Litigation, No. 97-1155 (W.D. Wash. May 24, 1999) (
In re Cement and Concrete Antitrust Litigation, 1980-81 Trade Cases (CCH) ¶ 63,798 (D. Ariz. 1980)
(Muecke, J) (see 13 Class Action Rep. 512 (1990))
In re Cenco, Inc. Securities Litigation, MDL No. 291 (N.D. Ill. June 2, 1978 & Apr. 28, 1979) (Crowley, J)
In re Cendant Corp. Securities Litigation, 182 F.R.D. 144 (D.N.J. 1998), 109 F. Supp. 2d 285 (D.N.J.
2000), vacated & remanded, 264 F.3d 201 (3d Cir. 2001), on remand, 243 F. Supp. 2d 166 (D.N.J. Feb. 5, 2003)
In re Cendant Corp. PRIDES Litigation, 51 F. Supp. 2d 537 (D.N.J. 1999), vacated & remanded, 243 F.3d
722 (3d Cir. 2001), on remand, No. 98-2819 (D.N.J. June 11, 2002)
In re Cendant Corp. Derivative Action Litigation, 232 F. Supp. 2d 327 (D.N.J. 2002)
In re Centennial Technologies Litigation, No. 97-10304 (D. Mass. Apr. 29 1998) (see 21 Class Action Rep.
426 (2000))
In re Centocor, Inc. Securities Litigation, 1993 WL 189937 (E.D. Pa. June 2, 1993) (Bechtle, J) (see 16
In re Centocor Securities Litigation II, 1995 WL 754454 (E.D. Pa. Dec. 14, 1995) (see 16 Class Action
Rep. 352 (1993))
In re Ceridian Corp. Securities Litigation, No. 97-2044 (D. Minn. Mar. 31, 2000) (see 21 Class Action Rep.
560 (2000))
In re Chain Link Fence Antitrust Litigation, No. CLF-1 (D. Md. Nov. 9, 1989) (see 13 Class Action Rep.
498 (1990))
In re Chambers Development Securities Litigation, MDL No. 982 (W.D. Pa. Aug. 23, 1995) (see 18 Class
Action Rep. 329 (1996))
In re Chicken Antitrust Litigation, 1980-2 Trade Cases (CCH) ¶ 63,485 (N.D. Ga.) (see 13 Class Action
Rep. 478 (1990))
In re Chlorine and Caustic Soda Antitrust Litigation, No. 86-5428 (E.D. Pa. Sept. 22, 1988) (Bechtle, J) (
In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 736 F. Supp. 1007 (E.D. Mo.
1990) (Nangle, J) (see 13 Class Action Rep. 743 (1990))
In re CHS Electronics, Inc. Securities Litigation, No. 99-8186 (S.D. Fla. Mar. 1, 2002) (see 23 Class Action Rep. 304 (2002))
In re Cincinnati Gas & Elec. Co. Securities Litigation, 643 F. Supp. 148 (S.D. Ohio 1986) (see 13 Class
Action Rep. 296 (1990))
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In re Cincinnati Microwave, Inc. Securities Litigation, Nos. 95-905, 95-910, 95-928 & 95-967 (S.D. Ohio
Mar. 21, 1997)
In re CitiSource, Inc. Securities Litigation, No. 86-1711 (S.D.N.Y. Mar. 8, 1994) (see 18 Class Action Rep.
184 (1995))
In re Citric Acid Antitrust Litigation, MDL No. 1092 & No. 95-2963 (N.D. Cal. Oct. 20, 2000)
In re Cityscape Financial Corp. Securities Litigation, MDL No. 1234 (E.D.N.Y. Nov. 27, 2000) (see 22
In re Clark Oil & Refining Corp. Antitrust Litigation, 422 F. Supp. 503 (E.D. Wis. 1976) (Reynolds, J) (
In re Clearly Canadian Securities Litigation, No. 93-1037 (N.D. Cal. Sept. 3, 1999)
In re Coastal Physician Group, Inc. Securities Litigation, No. 95-306 (M.D.N.C. July 7, 1998) (see 20
In re Columbia Gas Sys., Inc. Securities Litigation, No. 91-357 (D. Del. Nov. 2, 1995) (Farnan, J) (see 18
In re Combustion, Inc., 968 F. Supp. 1116 (W.D. La. 1997) (Haik, J)
In re Commercial Explosives Antitrust Litigation, MDL No. 1093 (D. Utah Dec. 29, 1998) (20 Class Action
Rep. 532 (1999))
In re Compact Video, Inc. Securities Litigation, No. 82-4782 (C.D. Cal. May 13 & June 3, 1986) (Tashima,
In re Comptronix Securities Litigation, No. 92-02752 (N.D. Ala. Dec. 1, 1993)
In re Computer Input Servs., Inc. Securities Litigation, No. 83-1393 (E.D. Pa. June 19, 1987) (see 13 Class
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In re Computer Memories Securities Litigation, No. 85-2335 (N.D. Cal. July 10, 1987) (Lynch, J) (see 13
In re Conseco, Inc. Securities Litigation, No. 00-585 (S.D. Ind. Aug. 7, 2002) (see 23 Class Action Rep.
785 (2002))
In re Consolidated Capital Securities Litigation, No. 85-7332 (N.D. Cal. Sept. 11, 1990) (see 13 Class Action Rep. 446 (1990))
In re Consolidated Delivery & Logistics, Inc. Securities Litigation, No. 97 1939 (S.D.N.Y. Feb. 10, 1999) (
In re Consolidated Pretrial Proceedings in Ampex Securities Cases, No. 73-360 (N.D. Cal. Oct. 6, 1976) (
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In re Continental Illinois Securities Litigation, 750 F. Supp. 868 (N.D. Ill. 1990) (see 13 Class Action Rep.
428 (1990)), rev'd & remanded sub nom. In the Matter of: Continental Illinois Securities Litigation, 962 F.2d
566 (7th Cir. 1992), on remand, No. 82-4712 (N.D. Ill. Dec. 1, 1992), pet. for writ of mandamus granted & vacated, 985 F.2d 867 (7th Cir. 1993), on remand sub nom. In re Continental Illinois Securities Litigation, 813
F. Supp. 633 (N.D. Ill. 1993), pet. for writ of mandamus granted sub nom. In the Matter of Much, Shelist,
Freed, Dennenberg, Ament & Eiger, Greenfield & Chimicles, Wolf, Haldenstein, Adler, Freeman & Herz,
No. 92-4088 (7th Cir. Dec. 28, 1993) (see 16 Class Action Rep. 570 (1993))
In re Continental/Midlantic Shareholders Litigation, 1987 WL 16678 (E.D. Pa. Sept. 1, 1987) (Newcomer,
In re Control Data Corp. Securities Litigation, Nos. 3-85-1341 & 3-85-1269 (D. Minn. Sept. 21, 1994)
(Rosenbaum, J) (see 17 Class Action Rep. 662 (1994))
In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litigation, MDL No. 150 (C.D. Cal.)
& No. 789-489 (Cal. Super. Ct. San Francisco Aug. 11, 1994)
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In re Copley Pharmaceutical, Inc. “Albuterol” Products Liability Litigation, 1 F. Supp. 2d 1407 (D. Wyo.
In re Cordis Corp. Pacemaker Prod. Liability Litigation, MDL No. 850 (S.D. Ohio Oct. 6, 1995) (Rice, J) (
In re Corrugated Container Antitrust Litigation, 1983-2 Trade Cases (CCH) ¶ 65,628 (S.D. Tex.), withdrawn & vacated as modified by settlement, 1985-1 Trade Cases (CCH) ¶ 66,457 (S.D. Tex. 1983) (see 13 Class
Action Rep. 472 (1990))
In re Cousins Securities Litigation, No. 84-1821 (S.D. Cal. Aug. 23, 1988) (Gonzalez, Mg.) (see 13 Class
Action Rep. 450 (1990))
In re Crazy Eddie Securities Litigation, 824 F. Supp. 320, 325-328 (E.D.N.Y. 1993) (Nickerson, J) (see 16
In re Credit Acceptance Corp. Securities Litigation, No. 98-70417 (E.D. Mich. Sept. 24, 2001) (see 23
In re Crown American Realty Trust Securities Litigation (Johnson v. Pasquerilla), No. 95-202 (W.D. Pa.
May 31, 2001) (see 22 Class Action Rep. 403 (2001))
In re D.C. Soft Drinks Antitrust Litigation, 1989-1 Trade Cases (CCH) ¶ 68,602 (D.D.C.) (Sporkin, J) (see
In re Datascope Corp. Securities Litigation, No. 93-4954 (D.N.J. Feb. 25, 1997) (Bassler, J) (see 20 Class
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In re Datastream Systems, Inc. Securities Litigation, No. 99-88 (D.S.C. Dec. 6, 2000) (see 22 Class Action
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In re Deforest Tender Offer Securities Litigation, No. 1:94-CV-2983 (N.D. Ga. Oct. 13, 1995)
In re Dell Computer Corp. Securities Litigation, No. 93-282 (W.D. Tex. Apr. 25, 1995)
In re Detection Sys., Inc. Securities Litigation, No. 98-6068 (W.D.N.Y. Nov. 29, 2000) (see 22 Class Action Rep. 94 (2001))
In re Digital Lightwave, Inc. Securities Litigation, No. 98-152 (M.D. Fla. Apr. 30, 1999) (see 20 Class Action Rep. 534 (1999))
In re Digital Sys. Int'l, Inc. Securities Litigation, No. C91-1521 (W.D. Wash. Nov. 22, 1993) (Dwyer, J) (
In re Dime Savings Bank of New York Litigation, 1994 WL 60884 (E.D.N.Y. Feb. 23, 1994) (Mishler, J) (
In re Discovery Zone, Inc. Securities Litigation, No. 94-7089 (N.D. Ill. Apr. 19, 1999) (see 21 Class Action
Rep. 261 (2000))
In re Dollar General Corp. Securities Litigation, No. 01-388 (M.D. Tenn. May 24, 2002) (see 23 Class Action Rep. 626 (2002))
In re Dreyfus Aggressive Growth Mutual Fund Litigation, 2001 WL 709262 at *4-*7 (S.D.N.Y. June 22,
In re Dun & Bradstreet Credit Servs. Customer Litigation, 130 F.R.D. 366, 372-377 (S.D. Ohio 1990)
(Weber, J) (see 13 Class Action Rep. 239 (1990))
In re E.F. Hutton Banking Practices Litigation, MDL No. 649 (S.D.N.Y. Mar. 8, 1988) (Knapp, J) (see 13
In re Einstein Noah Bagel Corp. Securities Litigation, No. 97-1614 (D. Colo. June 4, 1999 & Nov. 3,
In re Electric Weld Steel Tubing Antitrust Litigation, No. 79-4628 (E.D. Pa. Feb. 25 & June 21, 1982)
(Huyett, J) (see 13 Class Action Rep. 492 (1990))
In re Electro-Catheter Securities Litigation, No. 87-41 (D.N.J. Sept. 7, 1989) (Politan, J) (see 13 Class Action Rep. 350 (1990))
In re Elscint, Ltd. Securities Litigation, MDL No. 675 (D. Mass. Feb. 21, 1989) (Keeton, J) (see 13 Class
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In re Emerson Shareholder Litigation, No. 87-4046 (E.D.N.Y.) (Caden, Mg), aff'd, No. 87-8046 (E.D.N.Y.
Apr. 19, 1992), as noted in Diamond v. Fogelman, 1992 Fed. Sec. L. Rep. (CCH) ¶ 96,980 at 94,244 (E.D.N.Y.)
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(Kyle, J) (see 16 Class Action Rep. 472 (1993))
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July 9, 1990) (Wexler, J) (see 13 Class Action Rep. 290 (1990))
In re Engineering Animation Securities Litigation, Nos. 99-10117 & 99-10590 (S.D. Iowa May 16, 2001) (
In re Epitope, Inc. Securities Litigation, No. 92-759 (D. Or. June 14, 1993) (Redden, J) (see 16 Class Action Rep. 577 (1993))
In re Equatorial Communications Securities Litigation, No. 86-20782 (N.D. Cal. Nov. 22, 1988)
(Williams, J) (see 13 Class Action Rep. 328 (1990))
In re Equity Funding Corp. of America, 438 F. Supp. 1303 (C.D. Cal. 1977) (Lucas, J) (see 13 Class Action
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In re ESC Medical Systems, Ltd. Securities Litigation, No. 98-7530 (S.D.N.Y. Apr. 2, 2002) (see 23 Class
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In re Exide Corp. Securities Litigation, No. 98-60061 (E.D. Mich. Sept. 2, 1999) (see 21 Class Action Rep.
261 (2000))
In re F&M Distributors, Inc. Securities Litigation, No. 95-71778 (E.D. Mich. June 29, 1999) (see 21 Class
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In re Farmers Group Stock Options Litigation, 1992 Fed. Sec. L. Rep. (CCH) ¶ 96,522 at 92,381 (E.D. Pa.
1991) (Gawthrop, J) (see 15 Class Action Rep. 90 (1992))
In re Fernald Litigation, No. C-1-85-149 (S.D. Ohio Sept. 29, 1989) (Spiegel, J) (see 14 Class Action Rep.
93 (1991))
In re Fiddler's Woods Bondholders Litigation, 1987 Fed. Sec. L. Rep. (CCH) ¶ 93,537 (E.D. Pa.)
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In re Fidelity/Micron Securities Litigation, 1998 WL 313735 (D. Mass. June 5, 1998), No. 95-12676 (D.
Mass. June 25, 1998), vacated & remanded, 167 F.3d 735 (1st Cir. 1999), on remand, No. 95-12676 (D. Mass.
Aug. 24, 1999)
In re Fine Host Corporation Securities Litigation, 2000 WL 33116538 (D. Conn. Nov. 8, 2000) (see 22
In re Fine Paper Antitrust Litigation, 98 F.R.D. 48 (E.D. Pa. 1983), aff'd in part, rev'd in part & remanded,
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751 F.2d 562 (3d Cir. 1984), MDL No. 323 (E.D. Pa. May 23, 1986), MDL No. 323 (E.D. Pa. July 2, 1986),
MDL No. 323 (E.D. Pa. Feb. 13, 1987), MDL No. 323 (E.D. Pa. Feb. 17, 1987), rev'd, 840 F.2d 188 (3d Cir.
1988), MDL No. 323 (E.D. Pa. Apr. 28, 1987) (see 13 Class Action Rep. 508 (1990))
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In re First Jersey Securities, Inc. Securities Litigation, 1989 WL 69901 (E.D. Pa. June 23, 1989) (Weiner,
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(Sanders, J) (see 15 Class Action Rep. 199 (1992))
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In re Flight Transportation Corp. Securities Litigation, 685 F. Supp. 1092 (D. Minn. 1987) (Weiner, J) (
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(2001))
In re Focus Enhancements, Inc. Securities Litigation, No. 99-12344 (D. Mass. May 20, 2002) (see 23
In re Folding Carton Antitrust Litigation, 84 F.R.D. 245 (N.D. Ill. 1979) (Will & Robson, JJ) (see 13 Class
Action Rep. 472 (1990))
In re 4th Dimension Software, Ltd. Securities Litigation, No. 94-279 (C.D. Cal. Nov. 20, 1995 & notice
dated Sept. 5, 1995)
In re FPI/Agretech Securities Litigation, MDL No. 763 (D. Hawaii Dec. 8, 1994)
In re Frame Technology Securities Litigation, No. 93-20364 (N.D. Cal. July 18, 1994) (Infante, Mg) (see
In re Franklin Nat'l Bank Securities Litigation, 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,571 (E.D.N.Y.) (see 13
In re Fuel Oil Cases, 1982-2 Trade Cases (CCH) ¶ 64,796 (M.D. Fla.) (Carr, J) (see 13 Class Action Rep.
494 (1990))
In re Gas Meters Antitrust Litigation, MDL No. 360 (E.D. Pa. Jan. 17, 1980) (Weiner, J) (see 13 Class Action Rep. 484 (1990))
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In re Genentech, Inc. Securities Litigation, No. 88-4038 (N.D. Cal. Feb. 21, 1991)
In re General Public Utilities Securities Litigation, 1984 Fed. Sec. L. Rep. (CCH) ¶ 99,566 (D.N.J. 1983)
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In re General Instrument Securities Litigation, 2001 WL 1669375 (E.D. Pa. Dec. 28, 2001)
In re Geographics, Inc. Securities Litigation, No. 97-1170 (W.D. Wash. Oct. 30, 1998)
In re Gibson Greetings Securities Litigation II, No. 95-265 (S.D. Ohio Feb. 7, 1997)
In re Gibraltar Financial Corp. Securities Litigation, No. 87-07876 (C.D. Cal. Sept. 19, 1989) (Pfaelzer, J)
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Mass. Mar. 30, 1994) (Keeton, J) (see 18 Class Action Rep. 80 (1995))
In re Gitano Group, Inc. Securities Litigation, No. 94-0730 (S.D.N.Y. 1995)
In re Glassine & Greaseproof Paper Antitrust Litigation, No. 80-891 (E.D. Pa. Dec. 22, 1981) (Pollak, J) (
In re GNC Shareholder Litigation, 668 F. Supp. 450 (W.D. Pa. 1987) (Ziegler, J) (see 13 Class Action Rep.
378 (1990))
In re Goldome Securities Litigation, No. 88-4765 (S.D.N.Y. Mar. 29, 1990) (Sprizzo, J) (see 13 Class Action Rep. 352 (1990))
In re Gould Securities Litigation, 727 F. Supp. 1201 (N.D. Ill. 1989), No. 86-3598 (N.D. Ill. Nov. 21, 1989)
(Aspen, J) (see 13 Class Action Rep. 310 (1990))
In re Granada Partnerships Sec. Lit., MDL No. 837 (S.D. Tex. Oct. 16, 1992), as noted in In re PrudentialBache Energy Income Partnerships Securities Litigation, MDL No. 888 (E.D. La. Apr. 13, 1994)
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251293 at *6-*8 (E.D. Pa. Apr. 26, 1995) (Newcomer, J) (see 18 Class Action Rep. 332-333 (1996))
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In re Heart Technology Securities Litigation, No. 92-986Z (W.D. Wash. Sept. 15, 1994) (Zilly, J) (see 18
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(S.D.N.Y.), 562 F. Supp. 519 (S.D.N.Y. 1983) (Conner, J) (see 13 Class Action Rep. 316 (1990))
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(Cabranes, J) (see 13 Class Action Rep. 452 (1990))
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In re Leasing Solutions, Inc. Securities Litigation, No. 98-4366 (N.D. Cal. Feb. 28, 2000) (see 22 Class
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In re Medimmune, Inc. Securities Litigation, No. 93-3980 (D. Md. May 6, 1996) (Messitte, J) (see 19 Class
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In re NextLevel Sys., Inc. Securities Litigation, No. 97-7362 (N.D. Ill. Mar. 14, 2001) (see 22 Class Action
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In re PLC Sys., Inc. Securities Litigation, No. 97-11737 (D. Mass. Feb. 9, 2001) (see 22 Class Action Rep.
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94,997 (W.D. Okla.) (Weiner, J) (see 13 Class Action Rep. 312 (1990))
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Action Rep. 311 (2002))
In re Schulman Securities Litigation, MDL No. 753 (C.D. Cal. July 27, 1989) (Hauk, J) (see 13 Class Action Rep. 274 (1990))
In re Scientific Control Corp. Securities Litigation, 80 F.R.D. 237 (S.D.N.Y. 1978) (Brieant, J) (see 13
In re SCT Securities Litigation, 1986 WL 10552 (E.D. Pa. Sept. 19, 1986) (Green, J) (see 13 Class Action
Rep. 300 (1990))
In re Sea Containers, Ltd. Securities Litigation, Nos. 89-930, 89-1194, 89-1601, 89-1917 & 89-2750
(D.D.C. Oct. 31, 1990) (Penn, J) (see 13 Class Action Rep. 378 (1990))
In re Sears, Roebuck & Co. Securities Litigation, No. 97-2567 (N.D. Ill. Aug. 10, 1998)
In re Sequoia Systems, Inc. Securities Litigation, 1993 Fed. Sec. L. Rep. (CCH) ¶ 98,089 (D. Mass.)
(Woodlock, J) (see 17 Class Action Rep. 123 (1994))
In re Shared Medical Systems Corp. Securities Litigation, No. 87-5601 (E.D. Pa. Mar. 22, 1989)
(Gawthrop, J) (see 13 Class Action Rep. 344 (1990))
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In re Shell Oil Refinery, 155 F.R.D. 552 (E.D. La. 1993) (Mentz, J) (see 17 Class Action Rep. 667 (1994))
In re Shopping.com, Inc. Securities Litigation, No. 98-3255 (C.D. Cal. Feb. 12, 2001)
In re Sirrom Capital Corp. Securities Litigation, No. 98-0643 (M.D. Tenn. Feb. 4, 2000) (see 21 Class Action Rep. 427 (2000))
In re SmithKline Beckman Corp. Securities Litigation, 751 F. Supp. 525, 531-535 (E.D. Pa. 1990)
(Broderick, J) (see 13 Class Action Rep. 436 (1990))
In re SmithKline/Beecham Shareholder Litigation, No. 2303 (Pa. Ct. C.P. Philadelphia Co. May 22, 1990)
(Kremer, J)
In re Software AG Sys., Inc. Securities Litigation, No. 99-496 (E.D. Va. Sept. 8, 2000) (see 21 Class Action
Rep. 821 (2000))
In re Sorbates Direct Purchaser Antitrust Litigation, No. 98-4886 (N.D. Cal. Nov. 20, 2000) (see 22 Class
In re Sound Advice, Inc. Securities Litigation, No. 92-6457 (S.D. Fla. Mar. 25, 1994) (Ungaro-Benages, J)
In re Southeast Banking Corp. Securities Litigation, No. 90-0760 (S.D. Fla. Nov. 23, 1993) (Moore, J) (see
In re Spectrian Corp. Securities Litigation, No. 97-4672 (N.D. Cal. Oct. 20, 2000)
In re Standard Microsystems Securities Litigation, No. 95-2266 (E.D.N.Y. Jan. 28, 1998)
In re Standard Oil Company/British Petroleum Litigation, No. 126760 (Ohio Ct. C.P. Cuyahoga Co. July
2, 1987)
In re State Police Litigation, No. 89-606 (D. Conn. Dec. 2, 1999) (see 21 Class Action Rep. 682 (2000))
In re Storage Technology Securities Litigation, No. 92-B-750 (D. Colo. Dec. 1. 1995), Nos. 92-750 &
92-1059 (D. Colo. Dec. 12, 1995) (see 18 Class Action Rep. 536 (1996))
In re Stratosphere Corp. Securities Litigation, No. 96-708 (D. Nev. Dec. 6, 2000)
In re Structural Dynamics Research Corp., No. 94-630 (S.D. Ohio Mar. 22, 1996)
In re Sugar Industry Antitrust Litigation--Eastern Cases, MDL No. 201A (E.D. Pa. 1980) (Cahn, J) (see 13
In re Sugar Industry Antitrust Litigation--Western Cases, MDL No. 201 (N.D. Cal. May 12, 1978) (Boldt,
J), MDL No. 201 (N.D. Cal. Nov. 28, 1979) (Cahn, J) (see 13 Class Action Rep. 514 (1990))
In re Sulcus Computer Corp. Securities Litigation, No. 92-1165 (W.D. Pa. Sept. 16, 1994) (Standish, J) (
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In re Sumitomo Copper Litigation, 74 F. Supp. 2d 393 (S.D.N.Y. 1999), 146 F. Supp. 2d 436 (S.D.N.Y.
2001)
In re Summit Technology Securities Litigation, No. 96-11589 (D. Mass. Apr. 25, 2001)
In re Sunbeam Securities Litigation, 176 F. Supp. 2d 1323, 1332-1337 (S.D. Fla. 2001), No. 98-8258 (S.D.
Fla. Jan. 25, 2002), No. 98-8258 (S.D. Fla. Aug. 9, 2002) (see 23 Class Action Rep. 786 (2002))
In re Sun Microsystems, Inc. Securities Litigation, No. 89-20351 (N.D. Cal. June, 1993), as noted in L.A.
Daily J., June 7, 1993, at 3 (Whyte, J) (see 16 Class Action Rep. 472 (1993))
In re Sunrise Technologies Securities Litigation, No. 92-0948 (N.D. Cal. Apr. 18, 1994) (Henderson, J) (
In re Surgical Laser Technologies Securities Litigation, 1992 WL 328809 (E.D. Pa. Oct. 30, 1992) (Ditter,
In re Sybase, Inc. Securities Litigation, No. 95-1144 (N.D. Cal. June 13, 2000)
In re Sybase, Inc. II Securities Litigation, No. 98-252 (N.D. Cal. Sept. 29, 2000)
In re Synergen, Inc. Securities Litigation, No. 93-402 (D. Colo. Mar. 10, 1995) (Babcock, J) (see 18 Class
Action Rep. 332 (1996))
In re Synthroid Marketing Litigation, 201 F. Supp. 2d 861 (N.D. Ill. 2002), aff'd in part, vacated in part &
remanded, 2003 WL 1873816 (7th Cir. Apr. 15, 2003) (note: Due to time constraints, the Fee Study does not reflect the Seventh Circuit's recent decision in which it enhanced Consumer Counsel's fee award from about $14.6
million (including interest and costs) to about $17.52 million (plus interest and costs). Including these additional
fees would not have substantially affected the overall averages in our Study).
In re Tambrands, Inc. Securities Litigation, No. 93-2872 (S.D.N.Y. Nov. 17, 1995) (Brieant, J) (see 18
In re TCW/DW North American Government Income Trust Securities Litigation, No. 95-0167 (S.D.N.Y.
Apr. 26, 2000) (see 21 Class Action Rep. 683 (2000))
In re Tel-Save Securities Litigation, No. 98-3145 (E.D. Pa. Nov. 9, 2001) (see 22 Class Action Rep. 961
(2001))
In re Terra-Drill Partnerships Securities Litigation, 733 F. Supp. 1127 (S.D. Tex. 1990) (Pollack, J) (see
In re The Children's Place Retail Store, Inc. Securities Litigation, No. 97-5021 (D.N.J. May 23, 2000) (see
In re The Chubb Corp. Drought Ins. Litigation, MDL No. 782 (S.D. Ohio Dec. 12, 1988)
In re The Coca-Cola Co. Apple Juice Consumer Litigation, No. E-47054 (Ga. Super. Ct. Fulton Co. May 4,
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In re The WellCare Management Group, Inc. Securities Litigation, No. 96-0521 (N.D.N.Y. Jan. 31, 2000)
In re Thortec Int'l Securities Litigation, No. 88-2470 (N.D. Cal. Aug. 15, 1989) (Smith, J) (see 13 Class
Action Rep. 446 (1990))
In re 3Com Securities Litigation, No. 97-21083 (N.D. Cal. Mar. 9, 2001)
In re 3Com Securities Litigation, No. 89-20480 (N.D. Cal. Oct. 18, 1993) (Ingram, J) (see 16 Class Action
Rep. 738 (1993))
In re 3DO Securities Litigation, No. 94-1820 (N.D. Cal. Apr. 18, 1997)
In re Time Warner, Inc. Securities Litigation, No. 91-4081 (S.D.N.Y. Nov. 10, 1994)
In re Total Renal Care Securities Litigation, No. 99-1745 (C.D. Cal. Oct. 16, 2000) (see 21 Class Action
Rep. 821 (2000))
In re Toys “R” Us Antitrust Litigation, 191 F.R.D. 347 (E.D.N.Y. 2000)
In re TransOcean Tender Offer Securities Litigation, MDL No. 223 (N.D. Ill. Sept. 29, 1979) (Will, J) (see
In re Travel Agency Commission Antitrust Litigation, 953 F. Supp. 280 (D. Minn. 1997)
In re Triangle Industries, Inc. Shareholders Litigation, No. 10,466 (Del. Ch. New Castle Co. Mar. 15,
1990) (Hartnett, V.C.) (see 13 Class Action Rep. 426 (1990))
In re Trilogy Securities Litigation, No. 84-20617 (N.D. Cal. Mar. 14, 1986) (Aguilar, J) (see 13 Class Action Rep. 320 (1990))
In re Trimble Navigation Securities Litigation, No. 98-20441 (N.D. Cal. Sept. 23, 1999) (see 21 Class Action Rep. 262 (2000))
In re Triton Energy Corp. Securities Litigation, No. 92-1068 (N.D. Tex. Mar. 7, 1994)
In re TSO Financial Litigation, Nos. 87-7903, 7961, 8142 & 8302 (E.D. Pa. July 17, 1989), Nos. 87-7903,
7961, 8142 & 8302 (E.D. Pa. Aug. 7, 1989) (Broderick, J) (see 13 Class Action Rep. 364 (1990))
In re Tucson Elec. Co. Securities Litigation, 1992 WL 64520 (D. Ariz. Feb. 20, 1992) (Copple, J), aff'd sub
nom. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1379 (9th Cir. 1993) (Thompson, J)
In re Twinlab Corp. Securities Litigation, 187 F. Supp. 2d 80, 84-89 (E.D.N.Y. 2002) (see 23 Class Action
Rep. 311 (2002))
In re UCAR International, Inc. Securities Litigation, No. 98-600 (D. Conn. Jan. 19, 2000) (see 21 Class
Action Rep. 427 (2000))
In re U.S. Bioscience Securities Litigation, 1994 Fed. Sec. L. Rep. (CCH) ¶ 98,346 (E.D. Pa.) (Adams, Sp.
Master), aff'd, 155 F.R.D. 116 (E.D. Pa. 1994) (Dalzell, J) (see 17 Class Action Rep. 531 (1994))
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In re U.S. Financial Securities Litigation, MDL No. 161 (S.D. Cal. Nov. 27, 1978) (Turrentine, J) (see 13
In re Union Carbide Corp. Consumer Products Business Securities Litigation, 724 F. Supp. 160, 1110
(S.D.N.Y. 1989) (Brieant, J) (see 13 Class Action Rep. 278 (1990))
In re Unisys Corp. Retiree Medical Benefits ERISA Litigation, 886 F. Supp. 445 (E.D. Pa. 1995)
In re Unisys Corp. Securities Litigation, No. 99-5333 (E.D. Pa. Dec. 6, 2001) (see 22 Class Action Rep. 961
(2001))
In re Unisys Securities Litigation, No. 89-1179 (E.D. Pa. June 11, 1992)
In re United Energy Corp. Solar Power Modules Tax Shelter Investments Securities Litigation, 1989 Fed.
Sec. L. Rep. (CCH) ¶ 94,376 (C.D. Cal.) (Kenyon, J) (see 13 Class Action Rep. 452 (1990))
In re United Telecommunications, Inc. Securities Litigation, 1994 WL 326007 (D. Kan. June 1, 1994)
(O'Connor, J) (see 17 Class Action Rep. 215 (1994))
In re Urohealth Sys. Securities Litigation, No. 97-552 (C.D. Cal. June 5, 2000)
In re USA Detergents, Inc. Securities Litigation, No. 97-2459 (D.N.J. Dec. 15, 1998)
In re U.S. Bancorp Litigation, No. 99-891 (D. Minn. Dec. 12, 2000), aff'd, 291 F.3d 1035 (8th Cir. 2002)
In re U.S. Franchise Systems, Inc. Securities Litigation, No. 00-1244 (N.D. Ga. Apr. 15, 2002) (see 23
In re U.S. Healthcare Securities Litigation, No. 88-559 (E.D. Pa. Nov. 22, 1989), 1990 WL 44988 (E.D.
Pa. Apr. 11, 1990) (McGlynn, J) (see 13 Class Action Rep. 334 (1990))
In re USX Corp., Steel Stock Securities Litigation, No. 93-1246 (W.D. Pa. Mar. 18, 1996) (Diamond, J) (
In re ValuJet, Inc. Securities Litigation, No. 96-1355 (N.D. Ga. Oct. 28, 1999) (see 21 Class Action Rep.
263 (2000))
In re Value-Added Communications, Inc. Securities Litigation (see Papanikolaou v. Value-Added Communications, Inc.), No. 95-0346 (N.D. Tex. Dec. 9, 1996)
In re Valuevision International, Inc. Securities Litigation, 1997 WL 151774 (E.D. Pa. Mar. 25, 1997)
In re Vesta Insurance Group, Inc. Securities Litigation, No. 98-1407 (N.D. Ala. Dec. 10, 2001) (see 23
In re Vitamins Antitrust Litigation, MDL No. 1285 (D.D.C. July 16, 2001)
In re VMS Securities Litigation, No. 89-9448 (N.D. Ill. Nov. 19, 1991)
In re Wabash National Corp. Securities Litigation, No. 99-3 (N.D. Ind. Dec. 3, 2001) (see 23 Class Action
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Rep. 312 (2002))
In re Warner Communications Securities Litigation, 618 F. Supp. 735 (S.D.N.Y. 1985) (Keenan, J) (see 13
In re Washington Public Power Supply Sys. Securities Litigation (WPPSS), 779 F. Supp. 1063 (D. Ariz.
1990) (see 13 Class Action Rep. 258-265 (1990)), vacated & remanded, 19 F.3d 1291 (9th Cir. 1994), on remand, MDL No. 551 (D. Ariz. July 18, 1995) (Adams, Sp. Master) (see 17 Class Action Rep. 119 (1994))
In re Waste Management, Inc. Securities Litigation, No. 97-7709 (N.D. Ill. Sept. 17, 1999) (see 21 Class
Action Rep. 263 (2000))
In re Waste Management, Inc. Securities Litigation, No. 99-2183 (S.D. Tex. Apr. 29, 2002)
In re Water Heater Antitrust Litigation, MDL No. 379 (E.D. Pa. Aug. 8, 1980) (Ditter, J) (see 13 Class Action Rep. 516 (1990))
In re WCT Securities Litigation, No. 94-6524 (C.D. Cal. Feb. 1, 1996)
In re Wedtech Securities Litigation, MDL No. 735 (S.D.N.Y. July 30, 1992)
In re Wells Fargo Securities Litigation, No. 91-1944 (N.D. Cal. Mar. 31, 1995)
In re West Coast Department Stores Antitrust Litigation, 1982-2 Trade Cases (CCH) ¶ 64,763 (N.D. Cal.)
In re Western Union Securities Litigation, Nos. 84-5092 & 87-1415 (D.N.J. June 28, 1989) (Gerry, J) (see
In re Westinghouse Securities Litigation, Nos. 91-354, 97-309 & 97-960 (W. D. Pa. Oct. 19, 1999)
In re WICAT Securities Litigation, 671 F. Supp. 726 (D. Utah 1987) (Greene, J) (see 13 Class Action Rep.
330 (1990))
In re Wickes Cos., Inc. Securities Litigation, MDL No. 513 (S.D. Cal. Jan. 21, 1985) (Enright, J) (see 13
In re Winchell's Donut Houses, L.P. Securities Litigation, Nos. 88-117 (D. Del.) (Longobardi, J) & 9478
(Del. Ch. Oct. 27, 1989) (see 13 Class Action Rep. 436 (1990))
In re Wirebound Boxes Antitrust Litigation, MDL No. 793 (D. Minn. May 2, 1991) (see 14 Class Action
Rep. 265 (1991))
In re Woolworth Corp. Securities Class Action Litigation, No. 94-2217 (S.D.N.Y. Oct. 9, 1997 & Nov. 10,
1999)
In re Workers' Compensation Insurance Antitrust Litigation, 771 F. Supp. 284 (D. Minn. 1991)
(Rosenbaum, J) (see 14 Class Action Rep. 265 (1991))
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In re WorldPort Communications, Inc. Securities Litigation, No. 99-1817 (N.D. Ga. Oct. 19, 2001) (see 22
In re W.R. Grace & Co. Securities Litigation, No. 95-9003 (S.D.N.Y. Mar. 30, 1998) (see 21 Class Action
Rep. 263 (2000))
In re Wyse Technology Securities Litigation, No. 89-1818 (N.D. Cal. Mar. 30, 1992 & Oct. 26, 1993)
In re Xytronyx Securities Litigation, No. 92194 (S.D. Cal. June 11, 1994) (McKee, Mg), aff'd, No. 92-194
(S.D. Cal. July 26, 1994) (Gonzalez, J) (see 18 Class Action Rep. 333 (1996))
In re Zoll Medical Corp. Securities Litigation, No. 94-11579 (D. Mass. Oct. 5, 1998) (see 20 Class Action
Rep. 299 (1999))
In re ZZZZ Best Securities Litigation, No. 873574 (C.D. Cal. Jan. 23, 1995 & Nov. 20, 1995)
In the Matter of the Appraisal of Shell Oil Co., 1992 WL 321250 (Del. Ch. New Castle Co. Oct. 30, 1992)
(Hartnett, J) (see 15 Class Action Rep. 594 (1992))
J.E. and Z.B. Butler Foundation v. American Greetings Corp., No. 95-2411 (N.D. Ohio Aug. 18, 1997)
J.L. Schiffman & Co., Inc. Profit Sharing Trust v. Standard Indus., Inc., 1993 WL 271441 at *3-*4 (Del.
Ch. New Castle Co. July 19, 1993) (Allen, J) (see 17 Class Action Rep. 125 (1994))
J/H Real Estate, Inc. v. Abramson, 951 F. Supp. 63 (E.D. Pa. 1996 & 1997) (Bartle, J)
J.N. Futia Co. v. Phelps Dodge Indus., Inc., 1982-2 Trade Cases (CCH) ¶ 64,978 (S.D.N.Y.) (Sofaer, J) (
Jack Faucett Assocs. v. American Telephone & Telegraph Co., 1986 Trade Cases (CCH) ¶ 67,044
(D.D.C.) (Jackson, J) (see 13 Class Action Rep. 518 (1990))
Jacobs v. Coopers & Lybrand, L.L.P., No. 97-3374 (S.D.N.Y. Mar. 19, 2002) (see 23 Class Action Rep. 458
(2002))
James v. Phoenix Real Estate Bd., Inc., No. 73-559 (D. Ariz. 1975) (Craig, J) (see 13 Class Action Rep.
512 (1990))
Jaroslawicz v. Engelhard Corp., No. 84-3641 (D.N.J. Mar. 2, 1990) (Fisher, J) (see 13 Class Action Rep.
452 (1990))
Jenifer v. Delaware Solid Waste Authority, Nos. 98-270 & 98-565 (D. Del. Feb. 15, 2000) (see 21 Class
Action Rep. 816 (2000))
Jezarian v. Csapo, 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,211 (S.D.N.Y. 1979) (Bonsal, J) (see 13 Class Action
Rep. 304 (1990))
Johnson v. Bank of the West, No. 92-02127 (Cal. Super. Ct. Contra Costa Co. Sept. 21, 1993) (Marchiano,
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Jones v. National Distillers, No. 77-3646 (S.D.N.Y. Feb. 20, 1980) (Motley, J) (see 13 Class Action Rep.
408 (1990))
Jones v. Orenstein, No. 71-5576 (S.D.N.Y. Sept 13, 1977) (see 13 Class Action Rep. 444 (1990))
Jordan v. Edie & Co., 1981 Fed. Sec. L. Rep. (CCH) ¶ 98,230 (S.D.N.Y.) (Griesa, J) (see 13 Class Action
Rep. 410 (1990))
Jorstad v. IDS Realty Trust, 489 F. Supp. 1180 (D. Minn. 1980) (Lord, J), rev'd & remanded, 643 F.2d 1305
(8th Cir. 1981) (Ross, J, w/Stephenson & McMillian, JJ) (see 13 Class Action Rep. 268 (1990))
Joseph v. Shell Oil Co., 1985 WL 150466 (Del. Ch. New Castle Co. Apr. 22, 1985) (Hartnett, J) (see 15
Joslyn v. Hornblower & Weeks- Hemphill, Noyes, No. 70-2283 (C.D. Cal. Jan. 31, 1978) (Lucas, J) (see 13
Kalodner v. Michaels Stores, Inc., Nos. 95-1903 & 95-1904 (N.D. Tex. Jan. 26, 1998) (see 20 Class Action
Rep. 296 (1999))
Kamens v. Horizon Corp., 1981 Fed. Sec. L. Rep. (CCH) ¶ 98,007 (S.D.N.Y.) (Sand, J) (see 13 Class Action
Rep. 392 (1990))
Kaplan v. Kahn, No. 95-2295 (N.D. Cal. Sept. 20, 1999) [Borland I]; Crook v. Kahn, No. 95-669 (N.D. Cal.
Sept. 20, 1999) [Borland II]
Karp v. D.C. Club Corp., No. 76-678 (S.D.N.Y. Aug. 1977) (Knapp, J) (see 13 Class Action Rep. 444
(1990))
Kassover v. Huta, No. 90-00848 (S.D. Cal. May 10, 1994) (McCue, Mg & Gonzalez, J) (see 18 Class Action
Rep. 334 (1996))
Katheryn A. Doege, IRA v. Skolniks, Inc., No. 94-1884 (W.D. Okla. Apr. 24, 1997)
Katz v. Pels, 1992 U.S. Dist. LEXIS 8869 (S.D.N.Y. June 19, 1992) (Duffy, J) (see 15 Class Action Rep. 383
(1992))
Kaufman v. Lawrence, 1977 Fed. Sec. L. Rep. (CCH) ¶ 96,230 (S.D.N.Y.) (see 13 Class Action Rep. 444
(1990))
Kaufman v. Physician Reliance Network, Inc., No. 96-2628 (N.D. Tex. Dec. 1997)
Kaye v. Fast Food Operators, Inc., 99 F.R.D. 161 (S.D.N.Y. 1983) (Brieant, J) (see 13 Class Action Rep.
466 (1990))
Kazanas v. Millicom, Inc., 1992 Fed. Sec. L. Rep. (CCH) ¶ 97,255 (S.D.N.Y.) (Motley, J) (see 16 Class Action Rep. 352 (1993))
Kelly v. Piper, Jaffray & Hopwood, Inc., No. 732509 (Minn. Dist. Ct. Hennepin Co. July 20, 1981)
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(Sedgwick, J) (see 13 Class Action Rep. 360 (1990))
Kendrick v. Atcor, Inc., No. 87-1186, U.S. Dist. LEXIS 8389 (N.D. Ill. July 27, 1988) (Aspen, J) (see 13
Kensington Capital Mgt. v. Oakley, Inc., No. 97-808 (C.D. Cal. Dec. 18, 2000)
Kenty v. Transamerica Premier Ins. Co., 92CVH07-5822 (Ohio Ct. C.P. Franklin Co. Mar. 12, 1998) (see
Kestenbaum v. Emerson, 1981 Fed. Sec. L. Rep. (CCH) ¶ 98,293 (S.D.N.Y.) (see 13 Class Action Rep. 402
(1990))
Kiefer v. Ceridian Corp., No. 3-95-818 (D. Minn. Oct. 24, 1997)
Kirkorian v. Borelli, 695 F. Supp. 446, 454-457 (N.D. Cal. 1988) (Peckham, J) (see 13 Class Action Rep.
454 (1990))
Kirkvold v. Dakota Pork Indus., Inc., No. 97-4166 (D.S.D. Feb. 26, 1999) (see 20 Class Action Rep. 533
(1999))
Kirschner Bros. Oil, Inc. Profit Sharing Plan v. Fuller, No. 89-0800 (C.D. Cal. Apr. 27, 1990) (Wilson, J) (
Kiser v. Mocatta Metals Corp., No. 114811/93 (N.Y. Sup. Ct. N.Y. Co. Apr. 19, 1996)
Kisilenko v. STB Systems, Inc., No. 99-2872 (N.D. Tex. Nov. 2, 2000)
Klein v. King, No. 88-3141 (N.D. Cal. May 10, 1993 & notice dated Apr. 5, 1993) (see 16 Class Action Rep.
738 (1993))
Klein v. PDG Remediation, Inc., 1999 Fed. Sec. L. Rep. (CCH) ¶ 90,428, 1999 WL 38179 at *3 -*4
(S.D.N.Y. Jan. 28, 1999) (see 21 Class Action Rep. 261 (2000))
Kleinman v. Harris, No. 3-89-1869 (N.D. Tex. June 21, 1993) (Kendall, J) (see 16 Class Action Rep. 738
(1993))
Kline v. First Western Government Securities, No. 83-1076 (E.D. Pa. Nov. 19, 1996)
Koch v. Dwyer, No. 98-5519 (S.D.N.Y. May 3, 2002) (see 23 Class Action Rep. 453 (2002))
Koenig v. Benson, Nos. 86-1391 & 86-4290 (E.D. N.Y. Apr. 28, 1989) (Bartels, J) (see 13 Class Action Rep.
354 (1990))
Kohn v. American Metal Climax, Inc., No. 70-933 (E.D. Pa.) (Masterson, J), aff'd, 489 F.2d 262 (3d Cir.
1973), No. 70-933 (E.D. Pa. Mar. 29, 1974) (Ditter, J) (see 13 Class Action Rep. 438 (1990))
Koplovitz v. Plains Resources, Inc., No. 99-4212 (S.D. Tex. Dec. 18, 2001) (see also Di Giacomo v. Plains
All American Pipeline, No. 99-4137 (S.D. Tex. Dec. 18, 2001) (see 23 Class Action Rep. 304 (2002))
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Kors v. National Distillers & Chem. Corp., No. 74-3049 (S.D.N.Y. June 9, 1976) (Ward, J) (see 13 Class
Action Rep. 368 (1990))
Korwek v. Hunt, No. 84-7934 (S.D.N.Y. Aug. 16 & Oct. 1, 1990) (Lasker, J) (see 13 Class Action Rep. 272
(1990))
Kosen v. American Express Financial Advisors, Inc., No. 02-82 (D.D.C. June 16, 2002)
Kraszewski v. State Farm General Ins. Co., No. 79-1261 (N.D. Cal. June 10, 1993), in Class Counsel's Submission to the Special Master in Further Support of Application for an Award of Attorneys' Fees at 8, Roberts v.
Texaco, Inc., No. 94-2015 (S.D.N.Y. Apr. 24, 1997)
Kriegel v. Pacific Scientific Co., No. 98-4163 (C.D. Cal. May 3, 1999, Aug. 19, 1999 & Sept. 8, 2000)
Kronfeld v. Trans World Airlines, Inc., No. 83 Civ. 8641 (S.D.N.Y. Sept. 6, 1989) (Bartell, Sp. M.), aff'd,
129 F.R.D. 598 (S.D.N.Y. 1990) (Wood, J) (see 13 Class Action Rep. 362 (1990))
Kuhnlein v. Dep't of Revenue, 662 So.2d 309 (Fla. 1995)
Kurgan v. Mattel, Inc., No. 84-5677 (C.D. Cal. Mar. 5, 1986) (Williams, J) (see 13 Class Action Rep. 368
(1990))
Kurtz v. Blum, No. 94-1043 (C.D. Cal. Feb. 20, 1996)
Kurzweil v. Philip Morris Cos., 1999 WL 1076105 (S.D.N.Y. Nov. 30, 1999) (see 21 Class Action Rep. 262
(2000))
Labbee v. Wm. Wrigley, Jr. Co., 719 BNA Antitrust & Trade Reg. Rep. A-29 (W.D. Wash. 1975) (Boldt, J) (
LaChance v. Harrington, No. 94-4383 (E.D. Pa. Apr. 2, 1997) [National Media Corp.]
Lambert v. American Express Financial Corp., No. 99-493 (D. Minn. Dec. 17, 2001) (see 23 Class Action
Rep. 304 (2002))
Larkin v. Collins, No. 93-1252 (D. Kan. Feb. 25, 1994) (Belot, J) (see 17 Class Action Rep. 222 (1994))
Larkins v. Singley, No. 83-2533 (D. Ariz. Dec. 15, 1988) (see 13 Class Action Rep. 346 (1990))
Lasker v. Stevens Graphics Corp., No. 90-2766 (N.D. Tex. June 18 & Oct. 18, 1996)
Lavallie v. Owens-Corning Fiberglass Corp., No. 91-7640 (N.D. Ohio Sept. 20, 1995 & notice dated May
9, 1995)
Lazy Oil Co. v. Witco Corp., No. 94-110 No. 94-110 (W.D. Pa. Dec. 31, 1997)
Lee v. Sierra On-Line, Inc., No. 92-2089 (E.D. Cal. Nov. 3, 1995 & notice dated Sept. 13, 1995)
Lee v. Steloff, No. 88-0811 (C.D. Cal. Jan. 29, 1990) (Hupp, J) (see 13 Class Action Rep. 464 (1990))
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#:41299
Leonard v. Net Frame Sys., No. 95-0238 (N.D. Cal. Mar. 20, 1996)
Lerner v. Haimsohn, Nos. 86-2384, 87-182, 87183 & 88-1900 (D. Colo. Aug. 2, 1990) (Nottingham, J) (see
LeVerso v. SouthTrust Bank of Ala., No. 891367 (N.D. Ala. Jan. 7, 1993 & Aug. 15, 1994) (Blackburn, J) (
see 17 Class Action Rep. 532-533 (1994))
Levin v. Mississippi River Corp., 377 F. Supp. 926 (S.D.N.Y. 1974) (Weinfeld, J) (see 13 Class Action Rep.
436 (1990))
Levin v. Uni-Shield Int'l Corp., Nos. 77-2095 & 78-1971 (E.D. Pa. July 15, 1981) (Newcomer, J) (see 13
Levine v. American Export Industries, 1977 Fed. Sec. L. Rep. (CCH) ¶ 95,881 (S.D.N.Y.) (Pierce, J) (see
Levine v. American Express Co., No. 84-546 (S.D.N.Y. Oct. 23, 1978) (Ward, J) (see 13 Class Action Rep.
364 (1990))
Levinson v. Basic, Inc., No. 79-1220 (N.D. Ohio Mar. 16, Mar. 26 & Oct. 31, 1990) (Thomas, J) (see 13
Levit v. Filmways, Inc., 620 F. Supp. 421 (D. Del. 1985) (Wright, J) (see 13 Class Action Rep. 412 (1990))
Levit v. First American Bank & Trust, No. 88-0638 (S.D. Fla. Sept. 20, 1995)
Levitin v. A Pea in the Pod, Inc., No. 94-247 (N.D. Tex. Mar. 27, 1998)
Levy v. Eletr, No. 88-3457 (N.D. Cal. June 17, 1994)
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Rep. 464 (1990))
Liebhard v. Square D Co., No. 91-1103 (N.D. Ill. June 15, 1993) (Plunkett, J) (see 17 Class Action Rep. 122
(1994))
Liebman v. J. W. Peterson Coal & Oil Co., 63 F.R.D. 684 (N.D. Ill. 1974) (Will, J) (see 13 Class Action
Rep. 504 (1990))
Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161
(3d Cir. 1973) (Seitz, J, w/Weis & Scalera, JJ), on remand, 382 F. Supp. 999 (E.D. Pa. 1974) (Harvey, J), vacated & remanded, 540 F.2d 102 (3d Cir. 1976) (en banc) (Aldisert, J, w/Weis, Rosenn & Hunter, JJ, Gibbons &
Seitz, JJ, dissenting in part) (see 13 Class Action Rep. 480 (1990))
Livesay v. Punta Gorda Isles, Inc., No. 73-517 (E.D. Mo. Oct. 13, 1978) (Wangelin, J) (see 13 Class Action
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Logan v. King County, No. 93-2-20233-4 (Wash. Super. Ct. King Co. Dec. 19, 1997)
Lone Star Ladies Investment Club v. Schlotzsky's, Inc., No. 98-550 (W.D. Tex. Apr. 2, 2002)
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Long v. Trainor, 583 F. Supp. 1124 (E.D. Pa. 1984) (Luongo, J) (see 13 Class Action Rep. 462 (1990))
Long v. TWA, 1993 WL 121824 (N.D. Ill. Apr. 19, 1993)
Longden v. Sunderman, No. 3-87-0612 (N.D. Tex.), aff'd, 979 F.2d 1095 (5th Cir. 1992)
Longo v. Panic, No. 73-2207 (C.D. Cal. Feb. 9, 1977) (Firth, J) (see 13 Class Action Rep. 398 (1990))
Lowinger v. Combs, Nos. 95-73411 & 95-73420 (E.D. Mich. Dec. 11, 1998)
Lubliner v. Maxtor Corp., 1990 Fed. Sec. L. Rep. (CCH) ¶ 94,949 (N.D. Cal.) (see 13 Class Action Rep.
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Ludeman v. C&S/Sovran Corp., No. 92-8368 (S.D. Fla. Mar. 27, 1995)
Lynn v. Infinity Investors, Ltd., No. 97-226 (E.D. Tenn. May 21, 2001) (see 22 Class Action Rep. 605
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Lyons v. Scitex Corp., 987 F. Supp. 271 (S.D.N.Y. 1997)
Manngard v. Manchester Equipment Co., No. 97-1504 (E.D.N.Y. June 8, 1998)
Malanka v. de Castro, 1991 Fed. Sec. L. Rep. (CCH) ¶ 95,657 (D. Mass. 1990) (McNaught, J) (see 13 Class
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Mallory v. Regency Health Servs., No. 94-616 (C.D. Cal. Dec. 18, 1995)
Mark v. Fleming Cos., No. 96-506 (W.D. Okla. Sept. 6, 2001) (see 23 Class Action Rep. 310 (2002))
Marks v. Amre, Inc., No. 89-1045 (N.D. Tex. Dec. 22, 1992 & Dec. 2, 1993)
Marks v. Simulation Sciences, Inc., No. 98-546 (C.D. Cal. June 4, 2001) (see 22 Class Action Rep. 405
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Martin v. Government Employees Insurance Co., No. SU-01-CV-312 (Ga. Super. Ct. Muscogee Co. June 3,
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Martin v. KPMG, LLP, No. 00-2086 (E.D. Va. Mar. 30, 2001) (see also In re Orbital Sciences Corp. Securities Litigation, No. 99-197 (E.D. Va. Dec. 13, 2000)) (see 22 Class Action Rep. 406 (2001))
Mashburn v. National Healthcare, Inc., 684 F. Supp. 679 (M.D. Ala. 1988) (Dubina, J) (see 13 Class Action Rep. 288 (1990))
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Matthey v. KDI Corp., No. C-1-88-0304 (S.D. Ohio July 14, 1989) (Rubin, J) (see 13 Class Action Rep. 314
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Maxwell v. HealthAmerica, No. 3-87-0599 (M.D. Tenn. Oct. 1, 1993) (see 17 Class Action Rep. 664 (1994))
Maywalt v. Parker & Parsley Petroleum Co., 864 F. Supp. 1422, 1434-1440 (S.D.N.Y. 1994), 1995 WL
138626 (S.D.N.Y. Mar. 30, 1995), 1997 WL 7668 (S.D.N.Y. Jan. 9, 1997), 963 F. Supp. 310 (S.D.N.Y. 1997)
(Sweet, J) (see 17 Class Action Rep. 663 (1994))
Mazur v. Behrens, 1974 Trade Cases (CCH) ¶ 75,213 (N.D. Ill.) (McMillen, J) (see 13 Class Action Rep.
506 (1990))
McCausland v. Shareholders Mgt. Co., 1974 Fed. Sec. L. Rep. (CCH) ¶ 94,580 (S.D.N.Y.) (Lasker, J) (see
McLendon v. Continental Group, Inc., 872 F. Supp. 142 (D.N.J. 1994)
Meer v. United Brands Co., 1979 Fed. Sec. L. Rep. (CCH) ¶ 96,794 (S.D.N.Y.) (Carter, J) (see 13 Class Action Rep. 462 (1990))
Meilke v. Constellation Bancorp, No. 90-3915 (S.D.N.Y. Apr. 22, 1996 & Hearing Tr.) (see 19 Class Action
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Meredith v. Mid-Atlantic Coca-Cola Bottling Co., Nos. 89-00302 & 89-00525 (E.D. Va. May 1 & June 18,
1990) (Merhige, J) (see 13 Class Action Rep. 498 (1990))
Meshel v. Nutri/System, Inc., 102 F.R.D. 135 (E.D. Pa. 1984) (Weiner, J) (see 13 Class Action Rep. 354
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Metropolitan Securities v. Goodyear Tire & Rubber Co., No. 86-9840 (S.D.N.Y. Nov. 8, 1988) (Broderick,
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Miller v. Fisco, Inc., 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,348 (E.D. Pa.) (Van Artsdalen, J) (see 13 Class
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Miller v. Mackey Int'l, Inc., 515 F.2d 241 (5th Cir. 1975) (F), on remand, 70 F.R.D. 533 (S.D. Fla. 1976)
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Milstein v. Huck, 600 F. Supp. 254 (E.D.N.Y. 1984) (Platt, J) (see 13 Class Action Rep. 402 (1990))
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Moelis v. Hyperion Capital Mgt., Inc., No. 94-3328 (S.D.N.Y. Oct. 21, 1997)
Moench v. Robertson, No. 92-4829 (D.N.J. Nov. 1, 1996)
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Morganstein v. Esber, 768 F. Supp. 725 (C.D. Cal. 1991) (see 14 Class Action Rep. 375 (1991))
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Muchnick v. First Federal Savings & Loan Ass'n of Philadelphia, No. 86-1104 (E.D. Pa. Sept. 29, 1986)
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Mueller v. Red Eagle Resources Corp., No. 13990 (Del. Ch. Ct. New Castle Co. Nov. 22, 1995)
Muller v. Cadbury Schweppes P.L.C., No. 96-0148788 (Conn. Super. Ct. Waterbury Jud. Dist. June 29,
Munsey Trust v. Sycor, 457 F. Supp. 924 (S.D.N.Y. 1978) (MacMahon, J) (see 13 Class Action Rep. 398
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Murphy v. Hollywood Entertainment Corp., No. 95-1926 (D. Ore. Aug. 15, 1997)
Murphy v. Presley Cos., No. CV 78-3035 (C.D. Cal. Apr. 7, 1981) (Waters, J) (see 13 Class Action Rep. 350
(1990))
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Mynaf v. Taco Bell Corp., No. CV 761193 (Cal. Super. Ct. Santa Clara Co. Sept. 21, 2001) (see 23 Class
Action Rep. 304 (2002))
Naef v. Masonite Corp., No. 94-4033 (Ala. Cir. Ct. Mobile Co. Jan. 23, 1998)
National Bonded Warehouse Ass'n, Inc. v. United States, 754 F. Supp. 874, 876-878 (Ct. Int'l Trade 1990)
(Restani, J) (see 14 Class Action Rep. 178 (1991))
National Treasury Employees Union v. United States, No. 02-128 (Cl. Ct. Dec. 20, 2002)
Naye v. Boyd, 1988 Fed. Sec. L. Rep. (CCH) ¶ 93,636 (W.D. Wash.), 1988 Fed. Sec. L. Rep. (CCH) ¶
93,697 (W.D. Wash.) (Rothstein, J) (see 13 Class Action Rep. 296 (1990))
Nelson v. All American Life & Financial Corp., No. 75-100-2 (S.D. Iowa July 19, 1990) (O'Brien, J) (see
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Nelson v. Waring, 602 F. Supp. 410 (N.D. Miss. 1984) (Senter, J) (see 13 Class Action Rep. 380 (1990))
Nemo v. Astrotech Int'l Corp., Nos. 85-982 & 85-1500 (W.D. Pa. Dec. 20, 1988) (see 13 Class Action Rep.
378 (1990))
Nensel v. Peoples Heritage Fin. Group, Inc., 815 F. Supp. 26 (D. Me. 1993) (Carter, J) (see 17 Class Action
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Neuberger v. Shapiro, No. 97-7947 (E.D. Pa. Aug. 25, 2000 & May 1, 2001) [Equipment Leasing Corp. of
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Newman v. Caribiner Int'l, Inc., No. 99-2271 (S.D.N.Y. Oct. 25, 2001) (see 22 Class Action Rep. 959
(2001))
New York v. Darling-Delaware, Inc., 440 F. Supp. 1132 (S.D.N.Y. 1977) (Stewart, J) (see 13 Class Action
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Nielsen v. United Creditors Alliance Corp., No. 98-5910 (N.D. Ill. July 18, 2000) (see 21 Class Action Rep.
558 (2000))
Northwestern Fruit Co. v. A. Levy & J. Zentner Co., 117 F.R.D. 670 (E.D. Cal. 1987), No. 84-263 (E.D.
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Novak v. Kasaks, No. 96-3073 (S.D.N.Y. Dec. 14, 1999) [AnnTaylor Stores] (see 21 Class Action Rep. 426
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O'Brien v. Nat'l Property Analysts Partners, No. 88-4153 (S.D.N.Y. Aug. 1989) (Leisure, J) (see 13 Class
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Orman v. America Online, Inc., No. 97-264 (E.D. Va. Dec. 14, 1998) (see 20 Class Action Rep. 295 (1999))
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Oppenlander v. Standard Oil Co., 64 F.R.D. 597 (D. Colo. 1974) (Finesilver, J) (see 13 Class Action Rep.
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Ostroff v. Hemisphere Hotels Corp., 1974 Fed. Sec. L. Rep. (CCH) ¶ 94,713 (S.D.N.Y.) (Bonsal, J) (see 13
Pace v. Real Estate Fund, No. 71-2161 (S.D.N.Y. Feb. 7, 1974) (Palmieri, J), as noted in N.Y.L.J. Feb. 8,
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Papanikolaou v. Value-Added Communications, Inc., No. 95-0346 (N.D. Tex. Dec. 9, 1996)
Paper Systems, Inc. v. Mitsubishi Corp., No. 96-959 (E.D. Wis. June 26, 2001) (see 22 Class Action Rep.
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Patterson v. Nationsbank, N.A., No. 99-481 (S.D. Ill. Feb. 4, 2000) (see 21 Class Action Rep. 425 (2000))
Paul v. American General Corp., No. H-90-2097 (S.D. Tex. Sept. 7, 1993) (Rainey, J) (see 18 Class Action
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Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) (Wiggins, J, w/Tang & Reinhardt,
JJ), on remand, (Bankr. D. Hawaii Dec. 1989) (Pence, J) (see 13 Class Action Rep. 440 (1990))
Pearlman v. Starrett Bros.& Eken Dev. Corp., No. 72-2247 (S.D.N.Y. Apr. 11, 1975) (Cannella, J), as noted
in N.Y.L.J. Apr. 16, 1975 (see 13 Class Action Rep. 420 (1990))
Peerless Weighing & Vending Machine Corp. (see Ravenswood Investment Co. v. Peerless Weighing &
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Peil v. National Semiconductor Corp., No. 77-4244 (E.D. Pa. Feb. 27, 1989) (Kelly, J) (see 13 Class Action
Rep. 378 (1990))
Peller v. Southern Co., No. 86-975 (N.D. Ga. Apr. 3, 1992) (Freeman, J) (see 16 Class Action Rep. 580
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Peregrine Options, Inc. v. Farley, Inc., 1992 WL 317037 (N.D. Ill. Oct. 28, 1992) (Williams, J) (see 16
Perkins v. Healthcare America, Inc., No. 95-223 (W.D. Tex. Apr. 26, 1996) (Sparks, J) (see 19 Class Action Rep. 68 (1997))
Phemister v. Harcourt Brace Jovanovich, Inc., 1984-2 Trade Cases (CCH) ¶ 66,234 (N.D. Ill.) (Moran, J) (
Philadelphia Geriatric Center v. Eli Lilly & Co., Nos. 79-4363 & 80-2682 (E.D. Pa. June 16, 1982)
(Luongo, J) (see 13 Class Action Rep. 500 (1990))
Phillips v. Automated Telephone Management Sys., No. 94-1602 (N.D. Tex. Oct. 21, 1996)
Phillips v. Bowers, No. 86-288 (D. Del. Mar. 18, 1988) (Latchum, J) (see 13 Class Action Rep. 388 (1990))
Picower v. Lord, 1977 Fed. Sec. L. Rep. (CCH) ¶ 95,882 (S.D.N.Y.) (Weinfeld, J) (see 13 Class Action Rep.
464 (1990))
Piggly Wiggly Clarksville, Inc. v. Mrs. Baird's Bakeries, Inc., No. 3:95-48 (E.D. Tex. Jan. 17, 1997)
Piser v. Blasius Indus., Inc., No. 73-F-30 (N.D. Ind. June 14, 1974) (see 13 Class Action Rep. 418 (1990))
Case
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Pleasant Overseas Corp. v. Hajjar, No. 93-20197 (N.D. Cal. Aug. 10, 1995)
Plumb v. State of Utah, 809 P.2d 734 (Utah 1990)
Pozzi v. Smith, 952 F. Supp. 218 (E.D. Pa. 1997)
Prescottano v. Koracorp Indus., Inc., No. 73-1074 (N.D. Cal. Apr. 25, 1977) (Sweigert, J) (see 13 Class Action Rep. 394 (1990))
Presley v. Carter Hawley Hale Profit Sharing Plan, 2000 WL 16437 at *2 (N.D. Cal. Jan. 7, 2000) (see 21
Price v. Ciba-Geigy Corp., No. 94-0647 (S.D. Ala. March, 28, 1995) (Butler, J) (see 18 Class Action Rep.
335 (1996))
Price (Miles) v. Philip Morris, Inc., No. 00-L-112 (Ill. Cir. Ct. Madison Co. Mar. 21, 2003)
Probandt v. Union Exploration Partners, Ltd., Nos. 90-3125, 90-5149 & 91-0306 (C.D. Cal. Sept. 29,
1992) (Lew, J) (see 16 Class Action Rep. 194 (1993))
Professional Adjusting Sys. of America, Inc. v. General Adjustment Bureau, Inc., No. 72-5122 (S.D.N.Y.
Sept. 22, 1978) (Werker, J) (see 13 Class Action Rep. 512 (1990))
Progressive United Corp. v. Belzberg, No. BC051367 (Cal. Super. Ct. Los Angeles Co. Oct. 3, 1995)
Purdue v. Country Mutual Ins. Co., No. 99-L-91 (Ill. Cir. Ct. Marion Co. Apr. 25, 2001) (see 23 Class Action Rep. 301 (2002))
Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d 1091 (D.N.M. 1999), No. 90-0957 (D.N.M. Dec. 6, 2002)
Rand v. Duke Assocs., No. 49DO1-9309-CT-0949 (Ind. Super. Ct. Marion Co. Feb. 11, 1994) (Mowery, J) (
Rand v. Standard Kollsman Industries, 1975 Fed. Sec. L. Rep. (CCH) ¶ 92,245 (S.D.N.Y.) (Cannella, J) (
Rappaport v. Merle Norman Cosmetics, Inc., No. 74-248 (C.D. Cal. Oct. 1976) (Gray, J) (see 13 Class Action Rep. 442 (1990))
Ratner v. Bennett, 1996 Fed. Sec. L. Rep. (CCH) ¶ 99,225, 1996 WL 243645 (E.D. Pa. May 8, 1996)
Ravenswood Investment Co. v. Peerless Weighing & Vending Machine Corp., No. 95 CH 5885 (Ill. Cir. Ct.
Cook Co. Nov. 26, 1996)
Rawlings v. Prudential-Bache Properties, Inc., No. 90-70958 (E.D. Mich. Apr. 10, 1992) (Gilmore, J), 9
F.3d 513 (6th Cir. 1993) (Norris, J, w/Jones & Jarvis, JJ) (see 17 Class Action Rep. 218 (1994))
Raz v. Archer Daniels Midland Co., No. 96-009729 (Wis. Cir. Ct. Milwaukee Co. Nov. 16, 1998) (see 20
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Red Eagle Resources Corp. v. Baker Hughes, Inc., No. 91-627 (S.D. Tex. May 31, 1994) (Black, J) (see 17
Ressler v. Jacobson, 149 F.R.D. 651 (M.D. Fla. 1992) (Nimmons, J) (see 16 Class Action Rep. 577 (1993))
Retsky Family, LP v. Price Waterhouse, LLP, 2001 WL 1568856 at *4 (N.D. Ill. Dec. 10, 2001) (see 22
Reynolds v. First Ala. Bank of Montgomery, 471 So. 2d 1238 (Ala. 1985)
Richardson v. White, Weld & Co., 1981 Fed. Sec. L. Rep. (CCH) ¶ 97,968 (S.D.N.Y.) (Conner, J) (see 13
Richman v. Piezo Elec. Prods., Inc., No. 84-0809 (S.D.N.Y. Apr. 13, 1988) (Griesa, J) (see 13 Class Action
Rep. 396 (1990))
Ridgeway v. TW Servs., Inc., Nos. 93-20202 & 93-20208 (N.D. Cal. July 29, 1994) (Ware, J) (see 19 Class
Rievman v. Burlington Northern Railroad Co., 118 F.R.D. 29 (S.D.N.Y. 1987) (Carter, J) (see 13 Class Action Rep. 274 (1990))
Rigg v. Brown, No. 932861 (Cal. Super. Ct. San Francisco Co. Dec. 13, 1993) (Dearman, J) (see 17 Class
Action Rep. 126 (1994))
Roberts v. Heim, 1991 Fed. Sec. L. Rep. (CCH) ¶ 96,221 at 91,153, 91,155-91,156 (N.D. Cal.) (Henderson,
Roberts v. Magnetic Metals Co., No. 78-0023 (D.N.J. Feb. 9, 1982) (Brotman, J) (see 13 Class Action Rep.
466 (1990))
Roberts v. Texaco, Inc., 979 F. Supp. 185 (S.D.N.Y. 1997) (Brieant, J & Moerdler, Sp. M)
Robertson v. Seidman & Seidman, 1981 Fed. Sec. L. Rep. (CCH) ¶ 97,847 (S.D.N.Y. 1980) (see 13 Class
Action Rep. 466 (1990))
Robinson v. Allegheny Beverage Corp., Nos. S-86-2309, S-87-1365 & S-87-1394 (D. Md. Sept. 6, 1988)
(Smalkin, J) (see 13 Class Action Rep. 324 (1990))
Robinson v. Co-Build Co., No. 73-1826 (E.D. Pa. June 1976) (Weiner, J) (see 13 Class Action Rep. 380
(1990))
Romero v. Tokai Credit Corp., No. BC081490 (Cal. Super. Ct. Los Angeles Co. July 19, 1994)
Rose v. Cooney, No. 92-208 (D. Conn. Sept. 8, 1994)
Rosenbaum v. Seeburg Indus., Inc., No. 75-1369 (E.D. Pa. June 22, 1977) (Luongo, J) (see 13 Class Action
Rep. 398 (1990))
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Ross v. A. H. Robins Co., Inc., 700 F. Supp. 682, 685-688 (S.D.N.Y. 1988) (Motley, J) (see 13 Class Action
Rep. 324 (1990))
Rothfarb v. Hambrecht, 649 F. Supp. 183 (N.D. Cal. 1986) (Orrick, J) (see 13 Class Action Rep. 300
(1990))
Rubenstein v. Collins, No. 92-1297 (S.D. Tex. Sept. 25, 1996)
Rubenstein v. Republic Nat'l Life Ins. Co., 74 F.R.D. 337 (N.D. Tex. 1976) (Pollack, J) (see 13 Class Action Rep. 320 (1990))
Rudolph v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1990 WL 7168 (N.D. Ill. Jan. 18, 1990)
Ruskin v. TIG Holdings, Inc., No. 98-1068 (S.D.N.Y. Feb. 15, 2002) (see 23 Class Action Rep. 311 (2002))
Ryan v. City of Chicago, No. 83-CH-0390 (Ill. Cir. Ct. Cook Co. Dec. 14, 1992)
Rybarczyk v. TRW, Inc., No. 95-2800 (N.D. Ohio Oct. 26, 2001)
Sachs v. MGM Grand Hotels, Inc., No. 7808 (Del. Ch. New Castle Co. Aug. 31, 1994) (Allen, J) (see 17
Saddle Rock Pts., Ltd. v. Hiatt, No. 96-9474 (S.D.N.Y. Apr. 13, 2001) [Maybelline, Inc.]
Salus v. Thomson McKinnon Asset Mgt., L.P., No. 89-6382 (S.D.N.Y. Oct. 29, 1993) (Duffy, J) (see 17
Sampson v. Eastman Kodak Co., No. 86-CH-650 (Ill. Cir. Ct. Cook Co. Dec. 21 & Dec. 22, 1988)
(Rakowski, J), as noted in 552 N.E.2d 1194 (Ill. App. 1990) (DiVito, J, w/Egan & Gordon, JJ) (see 14 Class Action Rep. 376 (1991))
Sanders v. Robinson Humphrey/American Express, Inc., 1990 Fed. Sec. L. Rep. (CCH) ¶ 95,315 at 96,494
(N.D. Ga.) (Vining, J) (see 13 Class Action Rep. 448 (1990))
Sandpiper Village Condominium Ass'n v. Louisiana-Pacific Corp., No. 95-879 (D. Ore. Apr. 26, 1996) (
Sands Point Partners, L.P. v. Pediatrix Medical Group, Inc., No. 99-6181 (S.D. Fla. May 3, 2002) (see 23
Sapir v. Delphi Ventures, No. 99-8086 (S.D. Fla. Nov. 29, 2001) (see 23 Class Action Rep. 311 (2002))
Schaefer v. Overland Express Funds, Inc., No. 95-0314 (S.D. Cal. Mar. 10, 1997)
Schenek v. FSI Futures, Inc., 1999 WL 33872 (S.D.N.Y. Jan. 25, 1999) (see 21 Class Action Rep. 262
(2000))
Schlanger v. Four Phase Sys., Inc., No. 81-7798 (S.D.N.Y.) (Brieant, J), as noted in N.Y.L.J., July 23,
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1984, at 1 (see 13 Class Action Rep. 458 (1990))
Schmidt v. Continental Securities, Inc., No. 75-279 (D. Ore. Sept. 18, 1975) (Skopil, J) (see 13 Class Action Rep. 444 (1990))
Schoenfeld v. The Dreyfus Corp., No. 98/604167 (N.Y. Sup. Ct. N.Y. Co. Dec. 20, 2001) (see 23 Class Action Rep. 458 (2002))
Scholes v. Tomlinson, No. 90-1350 (N.D. Ill. Apr. 1993), sub nom. Scholes v. Stone, McGuire & Benjamin, Nos. 90-6615 & 7201 (N.D. Ill. Sept. 29, 1994), sub nom. Scholes v. Douglas, No. 90-1292 (N.D. Ill.
Sept. 29, 1994) (Alesia, J) (see 17 Class Action Rep. 425 (1994))
Schuster Fund, Inc. v. Arlen Realty & Dev. Corp., 1974 Fed. Sec. L. Rep. (CCH) ¶ 94,879 (S.D.N.Y.) (see
Schwartz v. Celestial Seasonings, Inc., No. 95-1045 (D. Colo. Apr. 25, 2000)
Schwartz v. Harp, No. 84-4235 (C.D. Cal. Oct. 23, 1986) (Rymer, J) (see 13 Class Action Rep. 372 (1990))
Schwartz v. Novo Industri A/S, 119 F.R.D. 359, 364-367 (S.D.N.Y. 1988) (Conboy, J) (see 13 Class Action
Rep. 414 (1990))
Seagoing Uniform Corp. v. Texaco, Inc., 1989 Fed. Sec. L. Rep. (CCH) ¶ 94,791 (S.D.N.Y.) (Motley, J) (see
Segil v. Dynamex, Inc., No. 98-2593 (N.D. Tex. June 29, 2001) (see 22 Class Action Rep. 605 (2001))
Seiden v. Nicholson, No. 74-3117 (N.D. Ill. 1976) (see 13 Class Action Rep. 316 (1990))
Seidman v. American Mobile Sys., 965 F. Supp. 612 (E.D. Pa. 1997)
Seiffer v. Topsy's Int'l, Inc., 70 F.R.D. 622 (D. Kan. 1976), 80 F.R.D. 272 (D. Kan. 1978) (O'Connor, J) (
Seretan v. Globe Security Sys. Inc., No. 75-3317 (E.D. Pa. June 1, 1977) (McGlynn, J) (see 13 Class Action
Rep. 410 (1990))
Service Spring, Inc. v. Cambria Spring, Inc., 1985-1 Trade Cases (CCH) ¶ 66,437 (N.D. Ill. 1984)
(Leighton, J) (see 13 Class Action Rep. 492 (1990))
Shapiro v. Consolidated Edison Co., 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,364 (S.D.N.Y.) (Pierce, J) (see 13
Shea v. New York Life Ins. Co., No. 96-0746 (S.D. Fla. July 3, 1996)
Sheftelman v. Jones, No. 84-472 (N.D. Ga. Feb. 14, 1991) (Freeman, J), aff'd, 1992 U.S. App. LEXIS 2107
(11th Cir. Feb. 18, 1992) (unpublished) (Fay, Cox & Johnson, JJ) (see 15 Class Action Rep. 382 (1992))
Sherin v. Smith, 1988 Fed. Sec. L. Rep. (CCH) ¶ 93,582 (E.D. Pa. 1987) (Newcomer, J) (see 13 Class Ac-
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tion Rep. 386 (1990))
Sherman v. Widder, No. 92-1827 (S.D. Cal. June 3 & 17, 1994) (Gonzalez, J & McCue, Sp. Master) (see 17
Shields v. Dow Jones & Co., No. 11,115 (Del. Ch. New Castle Co. Apr. 26, 1991) (Hartnett, J), remanded,
No. 184 (Del. Nov. 22, 1991) (Moore, J, w/ Walsh & Holland, JJ), on remand, 1992 Del. Ch. LEXIS 24 (New
Castle Co. Jan. 10, 1992) (Hartnett, J) (see 15 Class Action Rep. 301 (1992))
Shipping Financial Servs. Corp. v. Able Telcom Holding Corp., No. 98-8633 (S.D. Fla. May 24, 2002)
Shores v. Publix Super Markets, Inc., No. 95-1162 (M.D. Fla. May 23, 1997)
Silverman v. CPS Chemical Co., No. 86-4894 (D.N.J. Jan. 28, 1994) (Bissell, J) (see 17 Class Action Rep.
532 (1994))
Silverman v. WMX Technologies, Inc., No. 12963 (Del. Ch. New Castle Co. Sept. 27, 2000)
Silverton Victorian Millworks, Inc. v. U.S. West, Inc., No. 95-CV-130 (Colo. Dist. Ct. La Plata Co. July 17,
Sirota v. Econo-Car Int'l, Inc., No. 72-4899 (S.D.N.Y. June 25,1975) (Metzner, J), as noted in N.Y.L.J.,
June 26, 1975 (see 13 Class Action Rep. 408 (1990))
Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (Farris, J, w/
Fernandez, J, Sneed, J, concurring) (see 16 Class Action Rep. 85 (1993))
Slade v. Shearson, Hammill & Co., 79 F.R.D. 309 (S.D.N.Y. 1978) (Carter, J) (see 13 Class Action Rep.
384 (1990))
Slavin v. Morgan Stanley & Co., No. 91-10191 (D. Mass. May 18, 1993) (Skinner, J) (see 17 Class Action
Rep. 123 (1994))
Slomovics v. All For A Dollar, 906 F. Supp. 146 (E.D.N.Y. 1995)
Sloter v. Blue Cross of Western Pa., No. 92-1925 (W.D. Pa. Mar. 4, 1994) (Standish, J) (see 18 Class Action Rep. 82 (1995))
Smith v. MCI Telecommunications Corp., 1993 WL 142006 at *5 (D. Kan. Apr. 28, 1993) (see 17 Class
Action Rep. 126 (1994))
Smith v. Shell Petroleum, Inc., No. 8395 (Del. Ch. New Castle Co. Sept. 29, 1992) (Hartnett, J) (see 15
Smith v. Texaco, Inc., No. 96-749 (E.D. Tex. Nov. 19, 2001) (see 23 Class Action Rep. 304 (2002))
Snapp v. Topps Co., No. 93-0347 (E.D.N.Y. Feb. 18 & Dec. 29, 1997)
Sonnenfeld v. City & County of Denver, No. 95-468 (D. Colo. Dec. 9, 1997)
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Soroka v. Dayton Hudson Corp., No. H-143579-3 (Cal. Super. Ct. Alameda Co. July 15, 1993) (Parrilli, J) (
see 18 Class Action Rep. 186-187 (1995))
Spencer v. Comserv. Corp., 1987 Fed. Sec. L. Rep. (CCH) ¶ 93,124 (D. Minn. 1986) (Rosenbaum, J) (see 13
Spicer v. Chicago Board Options Exchange, Inc., 844 F. Supp. 1226 (N.D. Ill. 1993)
Spiekermann v. Whittaker Corp., 598 F. Supp. 1 (E.D.N.Y. 1978) (Neaher, J) (see 13 Class Action Rep. 418
(1990))
Spilove v. Anderson, No. 81-833 (C.D. Cal. Dec. 14, 1981) (Real, J) (see 13 Class Action Rep. 354 (1990))
Spivak v. Petro-Lewis, 120 F.R.D. 693, 701 (D. Colo. 1988) (Carrigan, J) (see 13 Class Action Rep. 452
(1990))
Spring v. Continental Illinois Corp., Nos. 84-4648 & 84-8596 (N.D. Ill. Jan. 29, 1987) (Leinenweber, J) (
State of Alabama v. Brown, 577 So. 2d 1256 (Ala. 1991)
Steinberg v. Carey, 470 F. Supp. 471 (S.D.N.Y. 1979) (Weinfeld, J) (see 13 Class Action Rep. 400 (1990))
Steinberg v. System Software Assocs., No. 97 CH 00287 (Ill. Cir. Ct. Cook Co. Sept. 30, 1997) (see 20
Steiner v. Baxter, No. 89-809 (D. Colo. Dec. 3, 1993) (Sparr, J) (see 17 Class Action Rep. 327 (1994))
Steiner v. BOC Fin. Corp., 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,656 (S.D.N.Y.) (Pierce, J) (see 13 Class Action Rep. 372 (1990))
Steiner v. Coopers & Lybrand, No. 94-388 (D. Del. Oct. 26, 1994) (McKelvie, J) (see 18 Class Action Rep.
81 (1995))
Steiner v. Figgie International, Inc., No. 94-0805 (N.D. Ohio June 12, 1996)
Steiner v. Hercules, Inc., 835 F. Supp. 771 (D. Del. 1993), reconsideration granted in part, No. 90442 (D.
Del. Nov. 22, 1993) (see 18 Class Action Rep. 77 (1995))
Steiner v. Ideal Basics, Indus., Inc., No. 86-M-456 (D. Colo. Nov. 2, 1989) (Matsch, J) (see 13 Class Action
Rep. 290 (1990))
Steiner v. Whittaker Corp., No. CA-000817 (Cal. Super. Ct. Los Angeles Co. Mar. 23, 1989) (see 13 Class
Action Rep. 286 (1990))
Stender v. Lucky Stores, Inc., No. 88-1467 (N.D. Cal. Apr. 20, 1994) (see 18 Class Action Rep. 338 (1996))
Sterman v. Louisiana Pacific Corp., 81-1550 (E.D. Pa. Jan. 10, 1983) (see 13 Class Action Rep. 350
(1990))
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Stevelman v. Alias Research, Inc., No. 91-682 (D. Conn. Nov. 16, 2001)
Stevens v. O'Brien Environmental Energy, Inc., No. 94-4577 (E.D. Pa. June 8, 1999 & 10/10/2000) (see 22
Stewart v. Butler, No. 88-02240 (C.D. Cal. Oct. 17, 1989) (Hatter, J) (see 13 Class Action Rep. 334 (1990))
Stix v. Mount Sinai Hospital, Inc., No. 103856/93 (N.Y. Sup. Ct. N.Y. Co. July 6, 1994) (Baer, Referee &
Wilk, J) (see 18 Class Action Rep. 335 (1996))
Strang v. JHM Mortgage Securities, L.P., 890 F. Supp. 499 (E.D. Va. 1995)
Stryker & Brown v. Chicago Yellow Cab Co., No. 68-4001 (S.D.N.Y. June 28,1974) (Ward, J), as noted in
N.Y.L.J., July 2, 1974 (see 13 Class Action Rep. 410 (1990))
Stull v. Baker, 410 F. Supp. 1326 (S.D.N.Y. 1976) (Conner, J) (see 13 Class Action Rep. 442 (1990))
Sussman v. AML Communications, Inc., No. 98-2010 (C.D. Cal. May 3, 2000)
Swedish Hospital Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993)
Tabankin v. Kemper Short-Term Global Income Fund, No. 93-5231 (N.D. Ill. Nov. 9, 1995)
Talbot v. Marietta Corp., No. 92-048 (N.D.N.Y. Oct. 22, 1993) (McAvoy, J) (see 16 Class Action Rep. 738
(1993))
Tanzer v. Haynie, 1980 Fed. Sec. L. Rep. (CCH) ¶ 97,560 (S.D.N.Y.) (Carter, J) (see 13 Class Action Rep.
460 (1990))
Tauber v. Rhone-Poulenc Rorer, Inc., No. 90-4556 (S.D.N.Y. Dec. 22, 1993) (Sprizzo, J) (see 17 Class Action Rep. 216 (1994))
TBK Partners, Ltd v. Warshow, 1977 Fed. Sec. L. Rep. (CCH) ¶ 96,196 (S.D.N.Y.) (Cannella, J) (see 13
Tepper v. Tropicana Prods., Inc., Nos. 96-000846, 96-001048 & 96-003496 (Fla. Cir. Ct. Manatee Co. Feb.
26, 1999) (see 20 Class Action Rep. 532 (1999))
The Foothold Fund, L.P. v. Blau, No. 15037 (Del. Ch. New Castle Co. Sept. 15, 1998) [Barry Blau & Ptns.,
Inc.] (see 20 Class Action Rep. 535 (1999))
Theofilakos v. Brenhouse, 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,581 (S.D.N.Y.) (see 13 Class Action Rep.
422 (1990))
Thomas v. AVM Corp., No. 74 Civ. 1549 (S.D.N.Y. May 12, 1975), as noted in N.Y.L.J., May 14, 1975 (see
Thomas v. Veterans Cab Co., No. 715,705 (Cal. Super. Ct. San Francisco Co. Dec. 1979) (see 13 Class Action Rep. 512 (1990))
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Thompson v. Pacific Gamble Robinson Co., No. 1374-73 (D.D.C. June 22,1976) (see 13 Class Action Rep.
412 (1990))
Thompson v. Vaughan-Lee, No. 97-3007 (M.D. Fla. Aug. 17, 2001) (see 22 Class Action Rep. 606 (2001))
Toner v. Cadet Mfg. Co., No. 98-2-10876-2 (Wash. Super. Ct. King Co. Sept. 6, 2002) (see 23 Class Action
Rep. 992 (2002))
Tonnemacher v. Sasak, No. 89-0201 (D. Ariz. June 10, 1991) (see 14 Class Action Rep. 374 (1991))
Tornetta v. Diamond-Bathurst, Inc., No. 87-4678 (E.D. Pa. Aug. 2,1988) (see 13 Class Action Rep. 410
(1990))
Trief v. Dun & Bradstreet Corp., 840 F. Supp. 277, 282-285 (S.D.N.Y. 1993), reconsideration denied, 1994
WL 9781 (S.D.N.Y. Jan. 11, 1994) (see 17 Class Action Rep. 219 (1994))
Trist v. First Fed. Sav. & Loan Ass'n of Chester, 89 F.R.D. 8 (E.D. Pa. 1980) (see 13 Class Action Rep.
500 (1990))
Trustee of the Florence Katz Trust v. La Petite Academy, Inc., Nos. 88-7535 & 89-4991 (E.D. Pa. July 11,
1989) (Kelly, J) (see 13 Class Action Rep. 380 (1990))
Turabo Medical Center v. Beach, Nos. 96-2250, 96-8671, 96-2290, 96-8578, 96-2459, 96-8590, 96-8712 &
96-4010 (D.P.R. Aug. 13, 1997) [Pepsi-Cola Puerto Rico Bottling Co.] (see 20 Class Action Rep. 394 (1999))
U.S. West, Inc. v. MacAllister, 1993 Fed. Sec. L. Rep. (CCH) ¶ 97,169 at 95,237-95,238 (D. Colo. 1992) (
University Capital Corp. v. Barbara Lynn Stores, Inc., 1975 Fed. Sec. L. Rep. (CCH) ¶ 94,949 (S.D.N.Y.) (
Upton v. McKerrow, No. 94-0353 (N.D. Ga. Aug. 14, 1997) [Longhorn Steaks, Inc.]
Urbach v. Sayles, No. 91-1291 (D.N.J. Apr. 7, 1995) (see 18 Class Action Rep. 334 (1996))
Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849 (10th Cir. 1993)
Valente v. PepsiCo. Inc., 1979 Fed. Sec. L. Rep. (CCH) ¶ 96,921 (D. Del.) (see 13 Class Action Rep. 366
(1990))
Van Gemert v. Boeing Co., 1981 Fed. Sec. L. Rep. (CCH) ¶ 98,008 (S.D.N.Y.) (see 13 Class Action Rep.
316 (1990))
Van Vranken v. Atlantic Richfield Co., 1995 WL 507005 (N.D. Cal. Aug. 16, 1995), 901 F. Supp. 294
(N.D. Cal. 1995) (see 18 Class Action Rep. 537 (1996))
Varljen v. H.J. Meyers & Co., 2000 WL 1683656 at *4-*6 (S.D.N.Y. Nov. 8, 2000) [Palomar Medical Technologies, Inc.]
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Vaszlavik v. Storage Technology Corp., 83 FEP Cas. 1094 (D. Colo. 2000)
Verdin v. R&B Falcon Drilling USA, Inc., Nos. 01-168 & 00-488 (S.D. Tex. Apr. 24, 2002)
Vizcaino v. Microsoft Corp., 142 F. Supp. 2d 1299 (W.D. Wash. 2001), aff'd, 290 F.3d 1043 (9th Cir. 2002)
Voege v. Ackerman, 67 F.R.D. 432 (S.D.N.Y. 1975), 70 F.R.D. 693 (S.D.N.Y. 1976) (see 13 Class Action
Rep. 466 (1990))
Vogt v. Abbott Labs., No. 94-404 (Ill. Cir. Ct. St. Clair Co. Dec. 13, 1996)
Voisin v. Bartell Media Corp., 1982 Fed. Sec. L. Rep. (CCH) ¶ 99,014 (S.D.N.Y.) (see 13 Class Action Rep.
406 (1990))
Wade v. Industrial Funding Corp., No. 92-0343 (N.D. Cal. Dec. 19, 1994) (see 18 Class Action Rep. 536
(1996))
Walco Investments, Inc. v. Thenen, 975 F. Supp. 1468 (S.D. Fla. 1997)
Waldman v. Electrospace Corp., No. 74-3097 (S.D.N.Y. Mar. 15, 1979), as noted in N.Y.L.J. Mar. 19, 1979
Waldman v. Fidelco Growth Investors, Nos. 78-623, 78-796, 78-1349, 78-1527 & 78-2135 (E.D. Pa. July 7,
Waldner v. Shulman, 1989 WL 100184 (E.D. Pa. Aug. 28, 1989) (see 13 Class Action Rep. 416 (1990))
Walsingham v. Biocontrol Technology, Inc. No. 96-809 (W.D. Pa. Sept. 3, 2002) (see 23 Class Action Rep.
787 (2002))
Waltman v. Silverman, No. 66-1182 (S.D.N.Y. Mar. 12, 1974), as noted in N.Y.L.J., Mar. 13, 1974 (see 13
Warkel v. Cummins Engine Co., No. 90-428 (S.D. Ind. July 8, 1996)
Warnell v. Ford Motor Co., Nos. 98-1503 & 98-5287 (N.D. Ill. Nov. 20, 2000) (see 22 Class Action Rep.
403 (2001))
Waters v. International Precious Metals Corp., No. 90-6863 (S.D. Fla. Apr. 4, 1997), aff'd, 190 F.3d 1291
(11th Cir. 1999)
Weatherford Roofing Co. v. Employers National Ins. Co., No. 91-05637 (Tex. Dist. Ct. Dallas Co. Ct. Dallas Co. Sept. 20, 1994, Feb. 27, 1995, Dec. 27, 1995 & Nov. 1, 1996)
Wechsler v. Comfed Bancorp, Inc., No. 89-2224 (D. Mass. June 21, 1996)
Weinberger v. Cook Indus., Inc., 1981 Fed. Sec. L. Rep. (CCH) ¶ 97,978 (S.D.N.Y.) (see 13 Class Action
Rep. 410 (1990))
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Weinberger v. Flow General, Inc., 1984 Fed. Sec. L. Rep. (CCH) ¶ 91,541 (S.D.N.Y.) (see 13 Class Action
Rep. 458 (1990))
Weinberger v. Int'l Harvester Co., No. 81-1859 (S.D.N.Y. Jan. 19, 1988) (see 13 Class Action Rep. 350
(1990))
Weinberger v. Moldaw, No. 87-20107 (N.D. Cal. July 8, 1988) (see 13 Class Action Rep. 354 (1990))
Weinberger v. Schroeder, No. 84-20757 (N.D. Cal. Aug. 3, 1990) (see 13 Class Action Rep. 324 (1990))
Weinberger v. U.O.P., Inc., No. 5642 (Del. Ch. New Castle Co. Mar. 10, 1987)
Weiner v. Quaker Oats Co., No. 98-3123 (N.D. Ill. Sept. 14, 2001) (see 22 Class Action Rep. 961 (2001))
Weiss v. Drew Nat'l Corp., 465 F. Supp. 548 (S.D.N.Y. 1979) (see 13 Class Action Rep. 392 (1990))
Weiss v. Zayre Corp., 1990 Fed. Sec. L. Rep. (CCH) ¶ 94,883 (D. Mass. 1989) (see 13 Class Action Rep.
390 (1990))
Welling v. Alexy, No. 93-1591 (N.D. Cal. July 1, 1997) [Cirrus Logic]
Wells v. Dartmouth Bancorp, Inc., 813 F. Supp. 126 (D.N.H. 1993) (see 16 Class Action Rep. 353 (1993))
Weseley v. Spear, Leeds & Kellogg, 711 Fed. Supp. 713 (E.D.N.Y. 1989) (see 13 Class Action Rep. 372
(1990))
Westwood v. Cohen, No. 92-4406 (S.D.N.Y. Dec. 23, 1994) (see 19 Class Action Rep. 67 (1997))
White v. Employee Retirement Plan of Amoco Corp., 2001 WL 1204193 (N.D. Ill. Oct. 10, 2001)
White v. Heartland High-Yield Municipal Bond Fund, No. 00-1388 (E.D. Wis. July 18, 2002)
Wiegand v. Berry Petroleum Co., No. 9216 (Del. Ch. New Castle Co. Nov. 25, 1991)
Wilder v. Isenberg, 1974 Fed. Sec. L. Rep. (CCH) ¶ 94,818 (S.D.N.Y.) (see 13 Class Action Rep. 424
(1990))
Wilkins v. Nissan Motors Acceptance Corp., No. 92-02178 (Cal. Super. Ct. Contra Costa Co. Dec. 2, 1993)
Williams v. MGM-Pathe Communications Co., No. 91-03276 (C.D. Cal. Feb. 16, 1996), rev'd & remanded,
129 F.3d 1026 (9th Cir. 1997), on remand, No. 91-03276 (C.D. Cal. Feb. 2, 1998 & June 7, 1999) (see 19 Class
Action Rep. 473 (1998))
Willis v. Thorn Americas, Inc., Nos. 95-5878 & 96-3682 (E.D. Pa. July 6, 1998) (see 20 Class Action Rep.
638 (1999))
Wise v. Popoff, 835 F. Supp. 977 (E.D. Mich. 1993)
Wolff v. Cash 4 Titles, No. 00-542 (S.D. Fla. Nov. 9 & Dec 18, 2001)
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Wooten v. Dillard's, Inc., No. 99-990 (W.D. Mo. Jan. 16, 2002)
Wright v. Winn Dixie, Inc., No. 91-0047 (Ala. Cir. Ct. Montgomery Co. Dec. 1991) (see 16 Class Action
Rep. 85 (1993))
Yuan v. Bayard Drilling Technologies, Inc., No. 98-171 (W.D. Okla. July 16, 2001) (see 22 Class Action
Rep. 961 (2001))
Yud v. Saf T Lok, Inc., No. 98-8507 (S.D. Fla. Feb. 14, 2000) (see 21 Class Action Rep. 427 (2000))
Zaazouh v. Bank One of Youngstown, N.A., No. 89-145 (W.D. Pa. Nov. 10, 1993) (see 18 Class Action
Rep. 186 (1995))
Zeid v. Open Environmental Corp., No. 96-12466 (D. Mass. June 24, 1999)
Zimmerman v. Home Shopping Network, Inc., Nos. 10,911 & 10,919 (Del. Ch. New Castle Co. Sept. 5,
1991), as noted in Gelobter v. Bressler, 1991 Del. Ch. LEXIS 186 (Del. Ch. New Castle Co. Nov. 6, 1991) (see
Zinman v. Avemco Corp., 1978 Fed. Sec. L. Rep. (CCH) ¶ 96,325 (E.D. Pa.) (see 13 Class Action Rep. 416
(1990))
Zucker v. Sasaki, No. 95-10517 (S.D.N.Y. June 17, 1999) [Cygne Designs, Inc.]
Zucker v. Telebit Corp., No. 95-11793 (D. Mass. Feb. 14, 1997)
[FN1]. Case information compiled and analyzed by Stuart J. Logan, Associate Editor, and Beverly C. Moore, Jr.,
Editor in-Chief. Database compiled by statistician Dr. Jack Moshman, Moshman Associates, Inc., Bethesda, Md.
[FN2]. 13 Class Action Rep. 249 (1990).
[FN3]. To the left of each case name in the main Table 1 is a symbol indicating the type of case. S = securities,
A = antitrust, C = consumer, M = mass tort, T = taxpayer, L = labor/wage/pension, E = employment discrimination, EN = environmental pollution, CP = civil rights, W = social welfare/entitlements, U = utilities, D = derivative, and G = government regulation. The data for these particular types of cases are separately broken down later
in Table 2 (see p. 196).
[FN4]. This Survey does not cover any awards before approximately 1974, when fees were usually based on a
percentage of the recovery, and data on attorney hours and hourly rates were typically unavailable. Some of
these pre-Lindy awards are discussed at 5 Class Action Rep. 334-344, 472-480 (1978).
[FN5]. Total costs may be modestly understated to the extent that in some cases we do not have full information
on post-settlement/judgment notice and claims administration costs later deducted from the common fund prior
to its disbursement to class members. In some other cases for which this data is lacking, these expenses are paid
by the defendants on top of the settlement fund.
[FN6]. 6 Class Action Rep. 82 (1980).
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[FN7]. This conceptual distinction between attorney and paralegal compensation was developed in the 1990 Survey when the lodestar/multiplier method of awarding fees was most common. Under the criteria originating with
Lindy Bros. Builders, Inc. v. American Standard & Sanitary Corp., 487 F.2d 161 (3d Cir. 1973), fee petitions
would typically detail the hours and lodestar rates for attorneys and paralegals separately, so that the distinction
between true attorney compensation and paralegal costs could be made. However, given the subsequent ascendancy of the percentage fee method and the fee petition tendency to lump all attorney and paralegal time together,
the data necessary to distinguish attorney fees and paralegal costs is generally no longer available, at least not
from the court orders/decisions awarding fees. Thus, most paralegal costs in the Survey cases are as a practical
matter included in the Column 3 attorney fees.
[FN8]. Cases in which fees appear to have been awarded purely or primarily on a percentage basis are indicated
by “%” immediately to the left of Column 1. This is sometimes a judgment call, because in addition to the
“pure” lode-star/multiplier method, there is also the “mixed method” where the court uses what the multiplier
would turn out to be as a check on the reasonableness of the percentage selected or vice-versa.
[FN9]. As with lodestar rates, the multiplier for each case is an average for all attorneys or firms weighted by
their respective hours and hourly rates. Just as lodestars typically vary among members of a given firm (e.g.,
partners vs. associates), the multipliers awarded occasionally vary among different plaintiff firms in the same
case (e.g., “lead” vs. subordinate co-counsel). For example, in a given case lead counsel may be awarded a multiplier of 2.5, but the overall multiplier for all counsel may be only 1.9.
[FN10]. In some cases two or more separate fee awards are made at different points in time, as where there is a
series of partial settlements. In those cases an intermediate date of award is extrapolated based upon the number
of attorney hours involved in each separate fee award. That intermediate date is then used for the CPI adjustment.
[FN11]. The historical lodestar hourly rates (col. 11) can be converted into current rates by dividing the total
current rate (col. 14) by the historical total rate (col. 13) and multiplying by the col. 11 lodestar rate.
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Case
2:07-cv-05295-MRP
Page
24 NO.
98 ID
#:41317
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END OF DOCUMENT

LABATON SUCHAROW LLP JOEL H. BERNSTEIN jbernstein

Transcription

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