MEMORANDUM
Plaintiff Bradburn Parent Teacher Store, Inc. (“Bradburn”) has brought this class action antitrust lawsuit against Defendant 3M for damages arising out of 3M’s allegedly anti-competitive conduct. Plaintiffs have reached a settlement with 3M, which we preliminarily approved on October 24, 2006. Presently before the Court are Plaintiffs Motion for Final Approval of Settlement (Docket No. 350) and Class Counsel’s “Application for Attorneys’ Fee, Expenses, and Class Representative Incentive Award” (Docket No. 355). After a Final Approval Hearing held on April 18, 2007, and for the reasons that follow, we grant the Motion for Final Approval and the “Application for Attorneys’ Fee, Expenses, and Class Representative Incentive Award” as described in our Final Approval Order and Judgment below.
I. BACKGROUND
Bradburn brings this action against 3M on behalf of itself and other members of a class, which was approved on August 18, 2004 and includes persons who purchased invisible or transparent tape from 3M at any time from October 2, 1998 to the present, who have not purchased for resale under the class member’s own label, any “private label” invisible or transparent tape from 3M or any of 3M’s competitors from October 2, 1988 to the present. Bradburn alleges one count of monopolization in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, claiming that 3M unlawfully maintained monopoly power in the invisible and transparent tape markets in the United States. (Compl.1ffl 29-33.)
The conduct of 3M that forms the basis of thig class action lawsuit was the subject of a prior lawsuit before the' Court,
Le-Page’s Inc. v. 3M,
Civ. A. No. 97-3983 (E.D.Pa.). In that suit, LePage’s, a competing supplier of transparent tape, sued 3M alleging,
inter alia,
unlawful maintenance of monopoly power in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. The jury found in favor of LePage’s on its claim, and we denied 3M’s Motion, for Judgment as a Matter of Law.
See Le Page’s Inc. v. 3M,
Civ. A. No. 97-3983,
On March 1, 2004, we denied Bradburn’s initial motion for class certification on the grounds that the inclusion of direct purchasers of transparent tape who had also purchased private label tape (from 3M or elsewhere) could create conflicts in damage theories with class members, such as Bradburn, who had not purchased private label tape, because the private label tape purchasers might benefit from pursuing a “lost profit” rather than an overcharge theory of damages.
Bradburn Parent/Teacher Store v. 3M,
Bradburn then sought certification of the following modified class:
All persons who directly purchased invisible or transparent tape from 3M Company between October 2, 1998 and the present, who have not purchased, for resale under the class member’s own label, any “private label” invisible or transparent tape from 3M Company or any of 3M. Company’s competitors at any time from October 2, 1988 to the present.
We granted certification of Bradburn’s modified class on August 18, 2004.
Brad-burn Parent/Teacker Store, Inc. v. 3M,
Following certification, Bradburn sought to apply estoppel to many of the liability findings of the
Le Page’s
jury, with some success. In our Order of March 30, 2005, we granted collateral estoppel to Bradburn on several issues (the “Estoppel Order”).
Bradburn Parent/Teacher Store, Inc. v. 3M,
Following the class and estoppel proceedings, the parties proceeded to full fact
On September 8, 2006, Bradburn filed a Motion for Preliminary Approval of Settlement. We preliminarily approved the Settlement on October 24, 2006. This Order also authorized the dissemination of Notice of Proposed Settlement, scheduled a Final Approval Hearing for April 18, 2007, and set February 7, 2007 as the deadline for objections to the Settlement.
On January 18, 2007, Bradburn filed the instant Motion for Final Approval of the Settlement and Class Counsel’s “Application for Attorneys’ Fee, Expenses, and Class Representative Incentive Award.” The Motion and Application were supported by the following: Declaration of Charles G. Hunter (“Hunter Declaration”); Declaration of Richard Bithell (“Bithell Declaration”); Declaration of Gregory Baruch (“Baruch Declaration”); and Declaration of Geoffrey C. Hazard (“Hazard Declaration”). Bradburn subsequently filed a Corrected Memorandum in Support of Motion for Final Approval of Settlement (“PI. Corr. Mem. in Support”); Class Counsel’s Corrected Application for Attorneys’ Fee, Expenses, and Class Representative Award (“CorrApplication”); Memorandum in Further Support of the Motion and Application (“PI. Mem. in Further Support”); Second Declaration of Gregory Baruch (“Second Baruch Decl.”); Second Declaration of Bithell (“Second Bithell Decl.”); and Third Declaration of Bithell (“Third Bithell Deck”).
B. The Settlement Agreement
1. The Class Definition
The Class certified by the Court, and clarified in the Preliminary Approval Order as to the time period for the Class is defined as follows:
all persons who directly purchased invisible or transparent tape from 3M Company between October 2, 1998 and February 10, 2006, who have not purchased, for resale under the Class Member’s own label, any “private label” invisible or transparent tape from 3M Company or any of 3M Company’s competitors at any time from October 2,1988 to February 10, 2006; but excluding the following: (i) 3M Company, its subsidiaries, affiliates, officers, directors, and employees; (ii) those Persons that timely and validly requested exclusion from the Class in response to the Notice of Pen-dency of Class Action dated November 29, 2004, provided pursuant to the Court’s November 12, 2004 Order; and (iii) any other Person that may be excluded by order of the Court.
2. Terms of the Settlement Agreement
The Settlement Agreement provides for payment into a common fund of $39,750,000.00 in cash (the “Settlement Consideration”). Following payment of the attorneys’ fees, expenses, and any class representative incentive award from the Settlement Consideration, all of the remaining funds are to be distributed to the Class. The Settlement Agreement does not require class members to file
C. Final Approval Hearing
On April 18, 2006, we held a Final Approval Hearing to address the Motion for Final Approval and the Application for Fees, Expenses, and Class Representative Incentive Award. At the Final Approval Hearing, Class Counsel reported that no objections or requests for entry of appearance through separate counsel have been filed, and no correspondence has been received that would indicate a Class Member’s interest in raising an objection in response to the Notices mailed before or after the original objections deadline. The parties agreed to an extension until May 3, 2007 to allow time for 71 Class Members, whose addresses had only recently been identified and who were sent a Notice of the proposed Class Settlement on or before April 9, 2007, to file any objections. Class Counsel subsequently reported to the Court on May 3, 2007, that no objections have been filed by these 71 remaining Class Members.
II. MOTION FOR FINAL APPROVAL OF SETTLEMENT
“The decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.”
Girsh v. Jepson,
A. Adequacy of Notice
The due process demands of the Fifth Amendment and the Federal Rules of Civil Procedure require adequate notice to class members of a proposed settlement.
In re Aetna,
Moreover, “in a settlement class maintained under Rule 23(b) (3), class notice must meet the requirements of both Federal Rules of Civil Procedure 23(c)(2) and 23(e).”
In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prod. Liab. Litig.,
In addition to the requirements of Rule 23(c)(2), Rule 23(e) “requires that notice of a proposed settlement must inform class members: (1) of the nature of the pending litigation; (2) of the settlement’s general terms; (3) that complete information is available from the court files; and (4) that any class member may appear and be heard at the Fairness Hearing.”
Id.
at 517-18 (citation omitted). The court should consider both “the mode of dissemination and its content to assess whether notice was sufficient.”
Id.
Although the “notice need not be unduly specific ... the notice document must describe, in detail, the nature of the proposed settlement, the circumstances justifying it, and the consequences of accepting and opting out of it.”
Id.
at 518 (citing
In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prod. Liab. Litig.,
We find that the Notice provided in this case satisfies the requirements of due process and the Federal Rules of Civil Procedure. Pursuant to the Settlement Agreement and the Court’s Preliminary Approval Order, Poorman-Douglas Corp. (“PDC”) was authorized and appointed to serve as Settlement Administrator in this matter, and was responsible for assisting with the administration of the Settlement by, among other things, mailing the Class Notice to Class Members, and identifying Class Members whose initial Notices were returned as undeliverable. (Bithell Decl. ¶ 4.) The Settlement Class consists of 3,574 Class Members identified in the 3M data provided to Plaintiff and PDC. (Second Bithell Decl. ¶ 5.) PDC mailed the Notice of the Proposed Class Settlement to each Class Member on the Class Member list on January 8, 2007. (Bithell Decl. ¶ 6.) Included in the notice was a special insert sheet that calculated each class member’s approximate percentage share of the Net Settlement Amount.
(Id.)
For undeliverable Notices, PDC performed a database search for a new address for the Class Members using an address search database owned and operated by Lexis/Nexis. (Second Bithell Decl. ¶ 6.) New addresses
We also find the content of the Notice to be adequate under the due process clause and Rule 23. The Notice describes the nature and background of this action and defines the Class, Class claims, and consequences of Class Membership. (PI. Corr. Mem. in Support, Ex. B.) It summarizes the terms of the Settlement, including information relating to the size of the Settlement Fund; the release provisions of the Settlement; and the attorneys’ fees, expenses, and incentive award for which Bradburn may apply.
(Id.)
The Notice also describes the proposed Distribution Plan.
(Id.)
The Notice informs Class Members of the time and date of the Final Approval Hearing, and advises them of the nature and purpose of the Hearing, of their rights to object to the Settlement and appear at the Hearing, and of the procedure for asserting those rights.
(Id.)
The Notice includes the contact information of the relevant attorneys and of the Settlement Administrator, and also directs Class Members to the dedicated website where additional information pertaining to the case maybe found.
(Id.)
After reviewing the Notice, we conclude that the substance, like the method of dissemination* is sufficient to satisfy the concerns of due process and Rule 23.
See In re Prudential,
B. Presumption of Fairness
Rule 23(e) of the Federal Rules of Civil Procedure requires that the Court must approve any settlement of a class action and states that the Court may only approve a settlement “after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(1). The Third Circuit has determined that a court should accord a presumption of fairness to a settlement if the court finds that: “(1) the negotiations occurred at arms length; (2) there was suffi
The Settlement in this case is entitled to a presumption of fairness. The Settlement resulted from arm’s-length negotiations that occurred both during the Court-suggested mediation and in the months following mediation. (PI. Corr. Mem in Support at 8.) This case was settled only after all discovery, lasting more than one year, was completed. (Hazard Decl. ¶ 11.) Class Counsel has extensive experience litigating complex actions such as the one at hand. (Baruch Decl. ¶ 3.) Lastly, no Class Members filed objections to the Settlement. Accordingly, we will apply a presumption of fairness in analyzing the Settlement.
C. The Girsh Factors
The Third Circuit developed a nine factor test in
Girsh,
“which provides the analytic structure for determining whether a class action settlement is fair, reasonable, and adequate under Rule 23(e).”
In re Cendant,
(1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of all the attendant risks of litigation.
Id.
at 232 (citing
Girsh,
1. Complexity, expense, and likely duration of the litigation
“This factor captures ‘the probable costs, in both time and money, of continued litigation.’ ”
Id.
at 233 (quoting
In re General Motors, 55
F.3d at 812). An antitrust class action, such as this one, is “arguably the most complex action to prosecute” as “[t]he legal and factual issues involved are always numerous and uncertain in outcome.”
In re Linerboard Antitrust Litig.,
The parties to this action have spent nearly four years litigating these claims. This litigation has included two class certifications, several hearings on the court’s estoppel rulings, more than a full year of discovery, and virtually complete trial preparation. Whatever the disposition of the case on the merits, litigation likely would have continued for some time thereafter through post-trial motions and appeal.
See In re Ikon,
2. The reaction of the class
This factor “attempts to gauge whether members of the class support the settlement.” Id. As stated above, Notice of this Settlement was disseminated thoroughly by means of publication and first-class mail, and informed potential Class Members of their rights to object to the Settlement and to request exclusion from the Class. The deadline for filing objections and requesting exclusion was originally February 7, 2007. As of the Final Approval Hearing on April 18, 2007, no objections had been filed. (PI. Mem. in Further Support at 7.) At the Final Approval Hearing, the parties suggested and we agreed to extend the deadline for the filing of objections until May 3, 2007 for the additional 71 Class Members who had recently been sent their Notices of Settlement. As of May 6, 2007, Class Counsel reported to the Court that no objections have been filed.
This total absence of objections argues in favor of the proposed Settlement.
See Sala v. Nat’l R.R. Passenger Corp.,
3. Stage of proceedings and amount of discovery completed
This factor enables the Court to “ ‘determine whether counsel had an adequate appreciation of the merits of the case before negotiating.’”
In re Cendant,
4. Risks of establishing liability
This factor enables the Court to examine “ ‘what the potential rewards (or downside) of litigation might have been had class counsel decided to litigate the claims rather than settle them.’ ”
In re Cendant,
Amtitrust actions are among the most high risk, complex cases to litigate.
Stop & Shop Supermarket Co. v. SmithKline Beecham Corp.,
Civ. A. No. 03-4578,
Bradburn’s risks of establishing liability in this case are diminished by the Le Page’s verdict and the Amended Estoppel Order. However, the Amended Estoppel Order left many issues unresolved and Bradburn, therefore, still faced numerous challenges in establishing 3M’s liability in this case. For example, the Amended Es-toppel Order left intact Bradburn’s obligation to prove injury and damages. Even if 3M had monopolized the market and harmed competition for some period between 1993 and 1999, 3M could still argue that this did not affect purchases of transparent and invisible tape. Additionally, the market definition rulings extended only into 1999. Therefore, the market definition could be re-litigated for the period from October 13, 1999 to the present, and 3M had argued that the market had substantially changed since the time of the Le Page’s trial, and had become international. (PI. Corr. Mem in Support at 13-14.) Thus, while the Amended Estoppel Order provided some potential efficiencies at trial, substantial trial risk remained for the Bradburn class. We concluded that, given these challenges, this factor favors settlement.
5. Risks of establishing damages
“Like the fourth factor, ‘this inquiry attempts to measure the expected value of litigating the action rather than settling it at the current time.’ ”
In re Cendant,
6.Risks of maintaining class action status through trial
This factor allows the Court to weigh the possibility that, if a class were certified for trial in this case, it would be decertified prior to trial. Federal Rule of Civil Procedure 23(a) provides that “a district court may decertify or modify a class at any time during the litigation if it proves to be unmanageable, and proceeding to trial would always entail the risk, even if slight, of decertification.”
In re Cendant,
7. Ability of defendants to withstand greater judgment
This factor “is concerned with whether the defendants could withstand a judgment for an amount significantly greater than the Settlement.”
In re Cendant,
8. & 9. Range of reasonableness (in light of best possible recovery and risks of litigation)
The eighth and ninth
Girsh
factors “ask whether the settlement is reasonable in light of the best possible recovery and the risks the parties would face if the case went to trial.”
In re Aetna,
Pursuant to the Settlement Agreement, Class Members will receive immediate monetary relief in accordance with their relevant purchases of 3M tape, without undertaking the l'isks, costs, and delays of further litigation. The proposed Settlement provides between approximately 41 and 48 percent of the damages calculated by Plaintiffs expert economist. (PI. Corr. Mem. in Support at 19.) This result is significantly above the typical antitrust settlement, and courts routinely grant approval to settlements that involve recoveries that represent a much lower percentage of the actual damages.
See Stop & Shop Supermarket Co.,
The Settlement Consideration also represents more than 18.5 percent of 3M sales to Class Members. (PI. Corr. Mem. in Support at 19.) This is also far above settlements approved in other cases.
See Meijer Inc. v. 3M,
Civ. A. No. 04-5871,
Thus, of the nine
Girsh
factors, we find that only factor seven (the ability of 3M to withstand greater judgment) weighs against approving the Settlement. This
D. Fairness of the Distribution Plan
In addition to analyzing the terms of the Settlement Agreement, the Court must also examine the fairness of the proposed Distribution Plan. ‘“Approval of a plan of allocation of a settlement fund in a class action is governed by the same standards of review applicable to approval of the settlement as a whole: the distribution plan must be fair, reasonable and adequate.’ ”
In re Ikon,
The proposed Distribution Plan allocates the Settlement Fund among Class Members based upon their pro rata share of the Class’s total transparent tape purchases from 3M during the damage period, net of invoice adjustments and rebates paid as of the date of the settlement. (Hunter Decl. ¶¶ 8-10.) The Distribution Plan provides a straightforward method for determining each Class Member’s pro rata share of the net Settlement Fund. The calculations and distribution methodology were overseen by the Leaf Group, consulting experts on computer data and damages issues throughout this litigation, as well as Class Counsel and PDC. (Hunter Decl. ¶ 2, Bithell Decl. ¶ 6.) We find that the proposed distribution methodology is fair, reasonable, and adequate.
See In re Remeron Direct Purchaser Antitrust Litig.,
Civ. A. No. 03-0085,
In sum, we find that the content and dissemination of Notice in this case satisfies the requirements of due process and the Federal Rules of Civil Procedure, and we also find that the Settlement Agreement is fair, adequate and reasonable in light of all relevant considerations. We therefore grant final approval to the Settlement. We further find that the proposed Distribution Plan is fair, reasonable and adequate, and approve the Plan.
III. APPLICATION FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD
Class Counsel request that the Court grant the following, to be distributed from the common fund established by the Settlement: (1) a class representative incentive award of $75,000 to Bradburn/Teacher Store; (2) an award of attorneys’ fees of $13,912,500, or 35% of the Settlement common fund; and (3) an award of costs and expenses of $1,011,375 for reimbursement of expenses incurred by counsel on behalf of the class.
A. Expenses
? who create a common fund for the benefit of a class are entitled
B. Attorneys ’ Fees
“District courts approving class action settlements must thoroughly review fee petitions for fairness. Although the ultimate decision as to the proper amount of attorneys’ fees rests in the sound discretion of the court, the court must set forth its reasoning clearly.”
In re Aetna,
Courts typically use one of two methods for assessing attorneys’ fees, either the percentage of recovery method or the lodestar method.
In re Rite Aid Corp. Sec. Litig.,
Class Counsel have requested attorneys’ fees of $13,912,500, or 35% of the Settle
In
Gunter v. Ridgewood Energy Corp.,
(1) the size of the fund created and the number of persons benefited; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or the fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs’ counsel; and the awards in similar cases.
Id.
at 195 n. 1;
see also In re Rite Aid,
This list [of Gunter factors] was not intended to be exhaustive.... In Prudential, we noted, three other factors that may be relevant and important to consider: (1) the value of benefits accruing to class members attributable to the efforts of class counsel as opposed to the efforts of other groups, such as government agencies conducting investigations; (2) the percentage fee that would have been negotiated had the case been subject to a private contingent fee agreement at the time counsel was retained; and (3) any ‘innovative’ terms of the settlement.... In reviewing an attorneys’ fees award in a class action settlement, a district court should consider the Gunter factors, the Prudential factors, and any other factors that are useful and relevant with respect to the particular facts of the case.
In re AT & T,
1. Size of fund created and number of persons benefitted
Class Counsel have obtained for the class a common fund of $39,750,000 in cash, less expenses, attorneys’ fees, and incentive award, benefiting more than 3000 Class Members. As discussed above, the Settlement Consideration represents 18.5 percent of what Class Members paid to 3M for invisible and transparent tape during the damage period, and amounts to 41 to 48 percent of the total single damages claimed by the class. As the Settlement does not require Class Members to file proof of claim forms, all Class Members that can be located will receive a distribution from the common fund. Therefore, this factor weighs in favor of finding that the percentage of the settlement fund requested is appropriate.
2. Presence or absence of substantial objections by members of the class
There have been no objections either to the Settlement Agreement or to the requested attorneys’ fees. The absence of objections to the requested attorneys’ fees in this case is particularly notable. given the sophisticated nature of the absent Class Members.
See In re Remeron Direct Purchaser Antitrust Litig.,
3. Skill and efficiency of the attorneys involved
The skill and efficiency of Class Counsel are “measured by the quality of the result achieved, the difficulties faced, the speed and efficiency of the recovery, the standing, experience and expertise of the counsel, the skill and professionalism with which counsel prosecuted the case and the performance and quality of opposing counsel.”
In re Ikon,
4. Complexity and duration of the litigation
As mentioned above, courts have stated that antitrust class action are perhaps the
5. Risk of nonpayment
Class Counsel’s compensation for their services in this case was wholly contingent on the success of the litigation. (Hazard Decl. ¶ 25.) Given the risks of establishing liability and damages discussed above, the possibility of non-payment has been present throughout this litigation. Accordingly, this factor weighs in favor of finding that the percentage of the settlement fund requested is appropriate.
6. Amount of time devoted to the case by Plaintiffs’ counsel
Class Counsel spent more than four years, more than 9,000 hours in attorney time, and approximately 2,000 hours in paralegal time working on this case. ' (Baruch Decl. ¶ 2.) Due to the significant number of hours devoted to this litigation and the duration of this litigation, this factor weighs in favor of finding that the percentage of the settlement fund requested is appropriate.
7.Awards in similar cases
This factor requires the Court to compare the percentage of recovery requested as a fee in this case against the percentage of recovery awarded as a fee in other common fund cases in which the percentage of recovery method, rather than the lodestar method, was used.
In re Cendant Corp. PRIDES Litig.,
We conclude that each of the seven Gunter factors favors the requested award of attorneys’ fees in this case. Accordingly, we find that, under the Gunter analysis, the percentage of recovery requested as attorneys’ fees in this ease is reasonable.
8. The Prudential factors
Our assessment of Class Counsel’s re-' quest for attorneys’ fees in light of the three
Prudential
factors is consistent with our finding of reasonableness under the
Gunter
factors. The first
Prudential
factor is intended to measure whether “the entire value of the benefits accruing to class members is properly attributable to the efforts of class counsel,”
In re AT & T,
As for the second
Prudential
factor, we find that a percentage of recovery of 35 percent is comparable to the likely “percentage fee that would have been negotiated had the case been subject to a private contingent fee agreement at the time counsel was retained.”
In re AT & T,
With respect to the third
Prudential
factor, the Settlement Agreement here contains no particularly “innovative” terms to argue in favor of the requested award of attorneys’ fees.
In re AT & T,
In sum, we find that both the Prudential factors and the Gunter factors support our conclusion that the percentage of recovery requested by Class Counsel for attorneys’ fees in this case is reasonable.
The Third Circuit has suggested that, in addition to reviewing the fee award reasonableness factors, “it is ‘sensible’ for district courts to ‘cross-check’ the percentage fee award against the ‘lodestar’ method.”
In re Rite Aid,
The total lodestar amount submitted to the Court by Class Counsel in this case is $5,476,800 for 10,957.5 hours of attorney and paralegal time. (Baruch Deck ¶ 2.) The lodestar amount covers work done from the inception of the claims in this action through January 18, 2007 and is calculated at current rates. {Id.) The hours worked were recorded contemporaneously in the books and records that the firms maintained in the ordinary course of business. {Id. ¶ 5.) The lodestar amount, taken against the requested fee award, results in a lodestar multiplier of approximately 2.5.
The Third Circuit has recognized that multipliers “ ‘ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied.’ ”
In re Cendant PRIDES,
Having thoroughly reviewed Class Counsel’s request for attorneys’ fees, we conclude that the percentage of recovery requested by Class Counsel is reasonable, and -that the lodestar cross-check is consistent with a finding of reasonableness. Accordingly, we approve Class Counsel’s request, and award Class Counsel
C. Incentive Award to Representative Plaintiffs
Bradburn has asked the Court to approve an incentive award in the amount of $75,000 to be paid from the Settlement Fund, because Bradburn has spent a significant amount of its own time litigating this case for the absent members of the Settlement Class. “ ‘Courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.’ ”
Cullen v. Whitman Med. Corp.,
Bradburn has worked closely with Class Counsel throughout the four years of investigation, prosecution and settlement of the claims in this litigation. (Corr. Application at 6.) Although it is a small business, Bradburn’s representatives underwent nine depositions, in addition to providing testimony at the class certification hearing, and at the time of settlement, Bradburn’s representatives were preparing to attend and give testimony at the trial.
(Id.)
In opposing class certification, 3M interrogated Bradburn at length on internal family quarrels and allegations of misconduct, and claimed that these allegations disqualified Bradburn from being an adequate representative.
(Id.)
Furthermore, the Notice advised Class Members that Bradburn would apply for an incentive award up to this amount and there were no objections to the award.
See In re Remeron,
IV. CONCLUSION
For the foregoing reasons, we conclude that the Settlement Agreement and Distribution Plan are fair, adequate and reasonable, and we approve them. The Court further concludes that Class Counsel’s requested reimbursement of expenses in the amount of $1,011,375 and requested award of attorneys’ fees representing 35% of the Settlement Fund (or $13,558,518) are fair and reasonable, and we approve them. Lastly, the Court approves Bradburn’s request to be paid an incentive award in the amount of $75,000.
An appropriate Order follows.
FINAL APPROVAL ORDER AND JUDGMENT
WHEREAS Plaintiff Bradburn Parent Teacher Store, Inc. (“Bradburn”), on behalf of itself and each Class Member, as defined herein, by and through its counsel of record in the Litigation, has asserted claims for damages and injunctive relief against 3M Company (“3M”), alleging violations of federal antitrust law;
WHEREAS, the Court entered an order on August 18, 2004 certifying a class of Plaintiffs comprising “all persons who directly purchased invisible or transparent tape from 3M Company between October 2, 1998 and the present, who have not
WHEREAS, the Court has appointed R. Stephen Berry, J. Daniel Leftwich and Gregory Baruch, of the law firm of Berry & Leftwich, and Charles M. Jones, of the law firm of Jones, Osteen, Jones & Arnold, to serve as Class Counsel; and
WHEREAS, the Court directed on November 12, 2004 that potential class members be given notice of the class certification and afforded an opportunity to exclude themselves from the class; and
WHEREAS, Class Counsel certified on December 7, 2004 that such notice had been provided; and
WHEREAS the Plaintiff and 3M, desiring to resolve any and all disputes in this action, executed a Settlement Agreement dated as of September 5, 2006, which was filed with the Court on September 8, 2006; and
WHEREAS the Settlement Agreement does not constitute, and shall not be construed as or deemed to be evidence of, an admission of any fault, wrongdoing or liability by 3M or by any other person or entity; and
WHEREAS Plaintiff and 3M have agreed to entry of this Final Approval Order and Judgment (hereinafter, the “Order”); and
WHEREAS Plaintiff, on behalf of itself and éach Class Member, has agreed to the release of claims specified in the Settlement Agreement; and
WHEREAS, on October 24, 2006, this Court confirmed and updated the class certification granted in its Order dated August 18, 2004, granted preliminary approval to the Settlement Agreement and directed that Notice be given to the Class as defined in the Court’s Order dated August 18, 2004 and updated in the Preliminary Approval Order; and
WHEREAS, pursuant to the Preliminary Approval Order, Notice of the Settlement was given to Class Members, in accordance with Federal Rules of Civil Procedure 23(c)(2) and 23(e) and the requirements of due process (which Notice is incorporated herein by reference); and
WHEREAS an opportunity to be heard was given to all persons requesting to be heard in accordance with this Court’s Orders; the Court has reviewed and considered the terms of the Settlement Agreement, and the submissions of the parties in support thereof; and after holding a hearing on April 18, 2007 at which all interested parties were given an opportunity to be heard; and
WHEREAS there is no just reason for delay;
NOW, THEREFORE, before the taking of any testimony, without trial or adjudication of any issue of fact or law herein, without any admission of liability or wrongdoing by 3M Company, and upon the consent of the Settling Parties,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
I.
JURISDICTION
1.1. The Court has jurisdiction over the subject matter of this action and the parties hereto. Plaintiff brought this action asserting an claim under Section 2 of the Sherman Act, 15 U.S.C. § 2. Jurisdiction lies in this Court pursuant to 28 U.S.C. §§ 1331 and 1337. Venue is proper in the Eastern District of Pennsylvania.
DEFINITIONS
As used in this Final Approval Order and Judgment, the following definitions shall apply:
2.1. “3M” or “Defendant” means 3M Company and all of its predecessors, successors and past and present affiliates, subsidiaries, directors, officers, employees and agents.
2.2. “Class” means all Persons who directly purchased invisible or transparent tape from 3M Company between October 2, 1998 and February 10, 2006, who have not purchased, for resale under the Class Member’s own label, any “private label” invisible or transparent tape from 3M Company or any of 3M Company’s competitors at any time from October 2, 1988 to February 10, 2006; but excluding the following: (i) 3M Company, its subsidiaries, affiliates, officers, directors, and employees; (ii) those Persons that timely and validly requested exclusion from the Class in response to the Notice of Pendency of Class Action dated November 29, 2004, provided pursuant to the Court’s November 12, 2004 Order; and (in) any other Person that may be excluded by order of the Court.
2.3. “Class Counsel” means R. Stephen Berry, J. Daniel Leftwich, and Gregory Baruch of the law firm of Berry & Left-wich, and Charles M. Jones, of the law firm of Jones, Osteen, Jones & Arnold.
2.4. “Class Member” means any Person, including but not limited to the individual representative Plaintiff, that satisfies all of the requirements for inclusion in the Class as set forth in paragraph 2.2 herein, and that has not validly requested exclusion therefrom.
2.5. “Distribution Plan” means the plan that sets forth the process for the allocation and distribution of the Net Settlement Fund, which was submitted to the Court simultaneously with the Final Approval Motion.
2.6. “Effective Date” means the first date by which all of the events and conditions specified in paragraph 7.1 of the Settlement Agreement have been met and have occurred.
2.7. “Invisible or transparent tape” means invisible or transparent tape sold within the United States for home and office use, including such products as Scotch® Magic™ tape, Scotch® transparent tape, Highland™ tapes and other invisible or transparent tapes for home and office use, but not including such products as packaging tapes, sealing tapes or masking tapes.
2.8. “Judgment” refers to this Final Approval Order and Judgment.
2.9. “Litigation” means the action pending in the United States District Court for the Eastern District of Pennsylvania titled Bradburn Parent Teacher Store, Inc. v. 3M (Minnesota, Mining and Manufacturing Company), Civil Action No. 02-7676(JP).
2.10. “Notice of Proposed Settlement” means, collectively, the communications by which the Class was notified of the existence and terms of the Settlement.
2.11. “Notice Plan” means the plan approved in the Preliminary Approval Order for notifying the Class of the Settlement.
2.12. “Plaintiff’ means Bradburn Parent Teacher Store; Inc. and each of its parents, subsidiaries, affiliates, assignees, predecessors, successors, officers, directors, employees, agents, and attorneys.
2.13. “Released Claims” means the release and discharge of 3M and each of its parents, subsidiaries, divisions, affiliates, assignors, assignees, predecessors, succes
2.14.“Settlement” means the settlement contemplated by the terms, conditions and provisions set forth in the Settlement Agreement.
2.15. “Settlement Agreement” means the Settlement Agreement dated as of September 5, 2006 by and between Plaintiff Bradburn Parent Teacher Store, Inc., on behalf of itself and each Class.Member, and Defendant 3M Company, including all its thereto.
2.16. “Settlement Agreement Date” means September 5, 2006, the date as of which the Settling Parties entered into the Settlement Agreement.
2.17. “Settlement Consideration” means the amount that will be paid by 3M to or on behalf of the Class in exchange for the settlement and release of all Released Claims, as defined in paragraph 2.13 herein.
2.18. “Settling Parties” means, collectively, the Plaintiff, on behalf of itself and each Class Member, and 3M.
III.
FINAL APPROVAL OF SETTLEMENT
3.1. In its Order dated August 18, 2004, as confirmed and updated in the Preliminary Approval Order dated October 24, 2006, the Court certified the following Class which it now reconfirms:
all persons who directly purchased invisible or transparent tape from 3M Company between October 2, 1998 and February 10, 2006, who have not purchased, for resale under the Class Member’s own label, any “private label” invisible or transparent tape from 3M Company or any of 3M Company’s competitors at any time from October 2, 1988 to February 10, 2006.
3.2 Attached hereto as Exhibit 1 is the list of Persons that have timely excluded themselves from the Class, in response to
3.3 The Court finds that the Notice and the Notice Plan were reasonably calculated to apprise the Class of all material elements of the proposed settlement, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice. The Court finds that all Class Members were afforded the opportunity to object to or comment on the Settlement, and to appear at the Final Approval Hearing. Accordingly, the Court determines that all Class Members that have not excluded themselves from this Litigation are bound by this Final Approval Order and Judgment.
3.4 The terms of the Settlement Agreement are hereby approved. The Court finds that the Settlement is fair, reasonable and adequate and in the best interests of Plaintiff and the Class as a whole. The Settlement is the product of arm’s-length, serious and informed negotiations among experienced and knowledgeable counsel. The Settlement Agreement has the full force and effect of an order of this Court, and the Settling Parties are directed to implement the Settlement Agreement in accordance with its ■ terms and conditions.
3.5. The Distribution Plan is adjudged to be fair, reasonable and adequate and is hereby approved. Class Counsel are directed to proceed with the implementation of the Distribution Plan.
3.6 No objections have been filed with respect to the Settlement and/or the Distribution Plan.
3.7. No part of the Settlement Consideration to be provided by 3M pursuant to the Settlement Agreement shall constitute, nor shall it be construed or treated as constituting, a payment in lieu of treble damages, fines, penalties, forfeitures or punitive recoveries under any state or federal laws, rules or regulations, or any other applicable statute or provision.
IV.
DISMISSAL OF ACTION AND RELEASES OF CLAIMS
4.1. This action is dismissed with prejudice and, except as provided in paragraph 5.1 of this Order, without costs.
4.2. The Court hereby finds that the Released Claims which Plaintiff and the Class Members, on behalf of themselves and, with respect to individuals or individually owned businesses, on behalf of each of their heirs, predecessors, successors, representatives or assigns, and, with respect to corporate entities, on behalf of each of their parents, subsidiaries, affiliates, assignees, predecessors, successors, officers, directors, employees and agents, shall fully, and forever release, relinquish and discharge, by operation of this Final Approval Order and Judgment are as defined in paragraph 2.13 of this Order, i.e.,
the release and discharge of 3M and each of its parents, subsidiaries, divisions, affiliates, assignors, assignees, predecessors, successors, officers, directors, employees, agents and attorneys from any and all claims asserted, or which could have been asserted, in the Litigation and any and all claims and potential claims, demands, rights, liabilities and causes of action which have arisen or could arise hereafter, whether known or unknown, whether asserted or that could have been or could hereafter be asserted by any Class Member or any parent, affiliate or subsidiary of any of such Class Member against 3M and any of its subsidiaries, affiliates, directors, officers, employees and/oragents, concerning or relating in any way to or arising in any way from any 3M discount, rebate, offer, promotion or other sales program or practice (including without limitation, programs claimed to involve the bundling of products or volume or growth rebates) concerning, including or relating in any way to the sale, promotion or distribution of invisible or transparent tape for home or office use in effect from January 1, 1993 to September 5, 2006, including without limitation claims arising under any federal and/or state antitrust laws, unfair competition laws, consumer protection laws or deceptive trade practices acts or any similar statutory or common law provisions, but excluding from this release claims relating to any alleged product defect, personal injury or breach of contract. With the exception of claims relating to any alleged product defect, personal injury or breach of contract, this release is a “general release” as that term is used in Section 1542 of the Civil Code of the State of California and all Class Members that have not opted out will expressly waive any rights under that statute or any similar law of any state or territory of the United States or any principle of common law that is similar, comparable, or equivalent to Section 1542 of the California Civil Code.
4.3. Upon the Effective Date, each Class Member, on behalf of itself and, with respect to individuals or individually owned businesses, on behalf of each of their heirs, predecessors, successors, representatives or assigns, and, with respect to corporate entities, on behalf of each of their parents, subsidiaries, affiliates, assignees, predecessors, successors, officers, directors, employees and agents, shall have, shall be deemed to have and by operation of this Judgment shall have fully, finally and .forever released, relinquished and discharged 3M and its attorneys from any and all Released Claims and shall be deemed to have covenanted and agreed not to sue 3M or its attorneys with respect to the Released Claims.
4.4. Upon the Effective Date, 3M shall be deemed to have, and by operation of the Final Judgment shall have fully, finally and forever released, relinquished and discharged each and all of the Plaintiff and Class Counsel from all claims arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of the Litigation, other than claims for breach of the Settlement Agreement.
V.
FEES AND EXPENSES AND PLAINTIFF INCENTIVE AWARD
5.1 The Court approves the award of $13,558,518 to pay Class Counsel’s fees plus $1,011,375 to reimburse Class Counsel for payment of costs and expenses reasonably incurred in prosecuting and settling this action.
5.2 The Court approves the award of $75,000 as an incentive award for Plaintiff Bradburn Parent Teacher Store, Inc.
5.3 No objections have been filed with respect to attorneys’ fees and/or costs and expenses or with respect to Plaintiffs incentive award.
5.4 The fee award represents a multiplier of approximately 2.5 of Class Counsel’s lodestar of $5,476,800, which multiplier is reasonable under the circumstances.
VI.
FINALITY OF JUDGMENT
6.1 The Court finds that this Final Approval Order and Judgment adjudicates all the claims, rights and liabilities of the parties to the Settlement Agreement and is
VII.
RETENTION OF JURISDICTION
7.1. Without affecting the finality of this Order, the Court retains jurisdiction for the purposes of enforcing the terms of the Settlement Agreement, to supervise the Settlement and to bar class members that have not opted out from instituting, maintaining or otherwise pursuing claims encompassed within the Released Claims. The Court also retains jurisdiction to allow any of the Settling Parties to apply to this Court at any time for such further orders and directions as may be necessary and appropriate for the construction or carrying out of the Settlement Agreement and this Final Approval Order and Judgment, for the modification of any of the provisions of this Final Approval Order and Judgment, and for the enforcement of compliance herewith.
7.2. If this Settlement is terminated or reversed or overturned on appeal (except as to attorneys’ fees, expenses, or incentive awards), then: (a) this Final Approval Order and Judgment will have no force or effect, and all negotiations, proceedings, and statements made in connection with the Settlement Agreement will be without prejudice to the right of any persons or entities, and shall not be deemed admissions as to any issue; (b) the Settling Parties expressly reserve all of their rights and preserve all applicable defenses; and (c) the Settling Parties shall be restored to their respective positions in this Litigation as of May 5, 2006, and proceed as if the Settlement Agreement, and all other related orders and papers, had not been executed.
7.3. Under Rule 54 of the Federal Rules of Civil Procedure, the Court, in the interests of justice, there being no just reason for delay, expressly directs the Clerk of the Court to enter this Final Approval Order and Judgment, and hereby decrees that upon entry, it be deemed a final judgment and appealable with respect to all claims by Class Members, in accordance with the terms of the Settlement Agreement.
7.4. The Court directs the Clerk of the Court to maintain for a period of five (5) years the record of those members of the Class listed on Exhibit 1 that timely excluded themselves from the Class.
So Ordered.
EXHIBIT 1
LIST OF PERSONS THAT HAVE TIMELY EXCLUDED THEMSELVES FROM THE CLASS
Advantage Office Prods, 8930 Western Way, Jacksonville FL 32256
All Printing Resources, 140 W Lake Dr, Glendale Hts IL 60139
Benjamin Office Supply, 5022 Cook Rd, Beltsville MD 20705
Bobels Office Plus, 1953 C Coopr Fostr, Amherst OH 44001
Borden Office Equipment, 141 N 5th St, Steubenville OH 43952
Bowmans Stationers Inc., 322 Parker St, Vacaville CA 95688
Brotherton Ofc Products, 130 S College Ave, Fort Collins CO 80524
Crown Products Company, PO Box 696, 450 Nepperhan Avenue, Yonkers N.Y. 10701
Data Essentials Inc, 3150 Mercier St, Kansas City MO 64111
Evans Drug Co, 102 W Randolph Ave, Enid OK 73701
F & L Country Store, 55883 Cnty Rd 43, Middlebury IN 46540
Foleys Inc, PO Box 2768, 1116 Foust Ave., High Point NC 27260
Frameware Inc, 25 Sherwood Ln, Fairfield NJ 07004
Fraternal Enterprises, 4100 Baldwin Rd, Holly MI 48442
Hearn Paper Co Inc, 556 N Meridian Rd, Youngstown OH 44509
J R Freeman Co Inc, 123 S D St Ste A, San Bernardino CA 92401
Johnson Wholesale Co., Inc., 2226 Mustang Way, Madison WI 53718
Joshen Paper Packaging, 5808 Grant Ave., Cuyahoga Heights, OH 44105
Kelly Paper Co., 288 Brea Canyon Rd, City Industry CA 91789
Latschs Inc, 200 Oakcreek Dr, Lincoln NE 68528
Markus Inc, 3646 Werk Rd, Cincinnati OH 45248
Marshfield Book & Stationery Inc, Mill W McMillan St, Marshfield WI 54449
Maurer Industrial Supply, Inc, 3940 Lexington Pk, Elkhart IN 46514
Maxi Aids, 42 Executive Blvd, Farming-dale N.Y. 11735
Meyers Sply Co, 191 Sheridan Dr, Nauga-tuck CT 06770
Motive Parts & Supply, Po Box 708, Rapid City SD 57709
Nashville Office Interiors, Inc., PO Box 330399, 1621 Church St., Nashville TN 37203
Office Church School Spl, 780 S. Pike W., Sumter SC 29150
Office Supply Services, 2139 Supply Ct NW, Concord NC 28027
Peters Office Supply, 338 NW 9th Ave, Portland OR 97209
Publix Super Markets Inc., 2600 County Line, Lakeland FL 33811
Ray Engel Packaging Supp, 12060 Lack-land Rd, St Louis MO 63146
Roanoke Moulding Design, 1715 Granby Street, Roanoke VA 24012
Rogards Office Prods, 214 S Walnut St, Champaign IL 61820
Schwarz, 8338 Austin Avenue, Morton Grove IL 60053
Schwegmans Office Supply, 502 W Broadway St, PO Box 616, West Plains MO 65775
Ship-Pac, Inc., 3000 Covington Rd, Kalamazoo MI 49001
Signcraft Screenprint, 100 A J Harle Dr, Galena IL 61036
Southwestern Bus Systems (now Southwestern Office Plus), 1007 N 8th St, Garden City KS 67846 ■
Stephens Office Supply, 1201 West Loop N, Houston TX 77055
Stinson Stationers, 1108 Baker Street, PO Box 3399, Bakersfield CA 93305
Student Book Store, 421 E. Grand River Ave., East Lansing MI 48823
Sundry Distributors, Inc., 110 E Washington St., PO Box 1166, Athens AL 35611
Swartz & Watson (dba Accurate Office Equipment & Stebbins Office Systems), 1248 Lincoln Way East, Massillon OH 44646
Tharco, 10900 Painter Avenue, Santa Fe Springs CA 90670
TSRC, Inc. (T/a The Supply'Room Companies), 14140 N. Washington Hwy., PO Box 1810, Ashland VA 23005
Total Office Products, 9452 Philips Hwy, Ste. 7, Jacksonville FL 32256
Unique Novelties, 61741 Campground, Washington MI 48094
Variety Distributors, PO Box 728, Harlan IA 51537
Wuzburg Inc., 710 S. Fourth St., PO Box 710, Memphis TN 38101