OPINION AND ORDER APPROVING CLASS SETTLEMENT, CERTIFYING CLASS, AWARDING ATTORNEYS’ FEES AND COSTS, AND GRANTING INCENTIVE PAYMENTS TO CLASS REPRESENTATIVES
Plаintiffs bring this class action lawsuit under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., asserting, inter alia, Defendants breached ERISA-mandated fiduciary duties owed to Plaintiffs. The parties reached a Stipulation of Agreement of Settlement on February 22, 2006. This matter is now before the Court on Plaintiffs’ Motion for Final Approval of Proposed Settlement and Final Certification of the Class (Doc. 115-1), and Plaintiffs’ Motion for Order Awarding Attorneys’ Fees and Costs and Incentive Payments to Class Representatives (Doc. 110).
I. Approval of Proposed Class Settlement
This Court recognizes that settlement of class actions is generally favored and encouraged. Franks v. Kroger Co.,
1. The Court must preliminarily approve the proposed settlement;
2. Members of the class must be given notice of the proposed settlement; and
3. A fairness hearing must be held, after which the court must determine whether the proposed settlement is fair, reasonable and adequate.
Fed.R.Civ.P. 23(e); Williams v. Vukovich,
The determination of whether a proposed class settlement is fair, reasonable and adequate requires the Court to consider and balance several factors, which include:
1. Plaintiffs’ likelihood of ultimate success on the merits balanced against the amount and form of relief offered in settlement;
2. The complexity, expense and likely duration of the litigation;
3. The stage of the proceedings and the amount of discovery completed;
4. The judgment of experienced trial counsel;
5. The nature of the negotiations;
6. The objections raised by the class members; and
7. The public interest.
In re Telectronics Pacing Sys. Inc.,
A. Likelihood of Ultimate Success on the Mеrits Balanced Against the Amount and Form of Relief Offered in the Settlement
1. The Likelihood of Ultimate Success on the Merits
“The most important of the factors to be considered in reviewing a settlement is the probability of success on the merits.” In re General Tire & Rubber Co. Sec. Litig.,
1. Defendants were not the Plans’ fiduciaries, or if they were, their fiduciary duties did not extend to the matters at issue in this litigation;
2. To the extent Defendants were fiduciaries, they fully discharged all fiduciary duties imposed оn them by ERISA;
3. Even if Defendants failed to discharge one or more of their ERISA-mandated fiduciary duties, any such breach did not cause the losses alleged by Plaintiffs;
4. Broadwing common stock was at all relevant times a prudent investment for the Plans and their participants; and
5. The monetary relief sought by Plaintiffs is not permitted by ERISA.
Furthermore, the Class would need to rely substantially upon the testimony of expert witnesses to prove their claims. Acceptance of expert testimony is always far from certain, no matter how qualified the expert, inevitably leading to a “battle of the experts.” The Settlement agreement reached by the parties avoids the risks attendant to this “battle of the experts,” which could result in a ruling against Plaintiffs.
Beyond the legal obstacles Plaintiffs may encounter, each defense presents financial risks to the Class. Defendants are represented by experienced and competent counsel that have a larger litigation fund than Plaintiffs, which they would use to mount a zealous and thorough defense to Plaintiffs’ claims. Plaintiffs, on the other hand, are individuals not funded by a corporation and have limited financial resources.
Therefore, due to the existence of uncertainties inherent in Plaintiffs’ claims and resources, Plaintiffs’ likelihood of success on the merits is uncertain. This factor weighs in favor of approval of the proposed Settlement.
2. The Amount and Form of Relief Offered in Settlement
“The determination of what constitutes a ‘reasonable’ settlement is not susceptible of a mathematical equation yielding a particularized sum. Rather ... ‘in any case, there is a range of reasonableness with respect to a settlement.’ ” In re Michael Milken & Assoc1. Sec. Litig.,
Here, the $11 million cash Settlement provides valuable relief to all Class Members. The cash relief will be allocated to each Class Member’s account without the need for any further action taken by the Class Member’s to avail themselves of the relief. Moreover, the Settlement preserves the full rights of those who may have parallel claims under security laws.
Thus, balanced against the possibility that the Class Members will receive nothing by going forward on the merits of their claims, this factor weighs in favor of approving the proposed Settlement.
B. Complexity, Expense and Likely Duration of the Litigation
In general, “[m]ost class actions are inherently complex and settlement avoids the costs, delays, and multitude of other problems associated with them.” In re Telectronics Pacing Sys. Inc.,
ERISA-mandated fiduciary breach claims have four major components, each requiring different types of proof. First, the plaintiffs must prove that each defendant is a fiduciary; second, that each defendant breached a duty; third, that the breach has caused damage; fourth, the amount of damages that are attributable to the fiduciary breaches. These requirements may be difficult to prove because many fiduciaries did not have named fiduciary obligations regarding Plan investments. Unquestionably, organizing the proof, deposing all the fiduciaries and various professional employees perfоrming work for the Plans, and retaining experts in fiduciary practice, would be both time consuming and expensive.
In addition, due to the legal and factual complexities, this case would be expensive to litigate and, if fully litigated, may take years to resolve. Assuming Plaintiffs’ claims survive the motion to dismiss and then the summary judgment motions, trial preparation will result in the expenditure of many additional hours of effort and substantial additional expense. The trial would last several weeks and involve numerous attorneys, experts, the introduction of voluminous documentary and deposition evidence, vigorously contested motions, and the expenditure of enormous amounts of judicial and financial resources. In complex class action litigation such as this, those expenses will burden any recovery obtained for the Class, if Plaintiffs were to succeed.
Furthermore, if the Class were to recover a judgment larger than the Settlement offer, the additional delay due to post trial motions and the appellate process could deny Class Members a recovery for years. See e.g., Chatelain v. Prudential-Bache Sec.,
Thus, this factor also weighs in favor of approving the proposed Settlement. It secures a substantial benefit for the Class in a highly complex action, undiminished by further expenses, and without delay, costs, and uncertainty of protracted litigation.
C. Stage of the Proceedings and the Amount of Discovery Completed
To insure that Plaintiffs have had access to sufficient information to evaluate their case and to assess the adequacy of the proposed Settlement, the stage of the proceedings and the discovery taken must be considered. See
Plaintiffs’ discovery included: obtaining and reviewing more than 30,000 documents related to the allegations contained in the Complaint; completing several sets of interrogatories and document requests and interrogatories; deposing Defendants’ key employees that related to the Plans; retaining experts in various disciplines; and, obtaining preliminary reports in support of Plaintiffs’ allegations concerning liability and economic loss. Given this extensive discovery, this Court will “defer to thе judgment of experienced trial counsel who have evaluated the strengths of their case.” Kogan,
In addition to the thorough discovery, Plaintiffs filed a Motion for a Class Certification on November 15, 2004. On February 6, 2005, Defendants filed a Motion to Dismiss the consolidated Complaint. Based upon the extensive briefing and the discovery completed, both parties had a “clear view of the strengths and weaknesses of their cases.” In re Warner Communications Sec. Litig.,
Hence, the record before this Court clearly demonstrates that both sides in this conflict have been afforded an adequate opportunity to conduct a sufficient discovery to be fully
D. Judgment of Experienced Trial Counsel
It is well settled that, in approving a class action settlement, the court “should defer to the judgment of experienced counsel who has competently evaluated the strength of his proofs.” Williams,
In the instant case, both Plaintiffs’ and Defendants’ counsel are experienced practitioners in the field of complex ERISA, class action, employment and securities litigation. Counsel for both sides urge final approval of the proposed Settlement based upon their experience, their knowledge of the strengths and weaknesses of the case, their analysis of the discovery reviewed to date, the likely recovery at trial and on appeal, and other factors considered in evaluating the proposed class action settlement. In addition, the Court determines that the proposed Settlement has been negotiated vigorously and at arm’s-length by Plaintiffs and their counsel on behalf of the Plans and the Plaintiff Class. This Court further finds that, at all times, Plaintiffs acted independently and that their interests coincide with the interests of the Plans and the Plaintiff Class.
The Court also gives weight to the report filed by an Independent Fiduciary, which determined, inter alia, that:
1. The Settlement is reasonable in light of the Plans’ likelihood of full recovery, the risks and costs of litigation, and the value of claims foregone;
2. The terms and conditions of the transaction are no less favorable to the Plans than comparable arms-length terms and condition that would have been agreed to by unrelated parties under similar circumstances;
3. The transaction is not part of an agreement, arrangement or understanding designed to benefit a party in interest; and
4. All terms of the Settlement are specifically described in the written Settlement agreement.
Based on the foregoing, it is evident that both parties made a well-informed decision to enter into the proposed Settlement. Therefore, this factor weighs in favor of approving the proposed Settlement.
E. Nature of the Negotiations
The Cоurt gives significant weight to the belief of experienced counsel that the settlement is in the best interest of the class. 137 F.Supp.2d. at 1016 (citing In re Orthopedic Bone Screw Prod. Liab. Litig.,
In the case at bar, the proposed Settlement was negotiated in an adversarial manner after substantial factual investigation, intensive legal analysis and expert investigation and consultation. The proposed Settlement negotiations included several face-to-face meetings as well as numerous telephone conferences. Both parties to the negotiations vigorously attempted to secure the most desirable conclusion for their respective clients. Settlement proposal documents were exchanged back and forth betwеen the parties on numerous occasions in an attempt to resolve the key issues relative to the proposed Settlement. This process resulted in a fair, reasonable and adequate Settlement. See TBG, Inc. v. Bendis,
As a result, the Court concludes that the proposed Settlement was reached in good faith. This factor weighs in favor of approving the proposed Settlement.
F. Objections Raised by the Class Members
In considering a class action settlement, the Court should look to the reaction of the class members.
Here, there are over 5,000 Class Members, all of which were sent a mailed notice of the Settlement at their last known address. Of those, no Class Member objected to the Settlement. As such, the Class reaction indicates the Class supports the Settlement. See Whitford,
G. Public Interest
The Court notes that the public interest favors approval of the proposed Settlement. See Franks,
II. Class Certification
The benefits of a settlement can be realized only through the final certification of a settlement class. However, the court maintains broad discretion in deciding whether to certify a class. See Amchem Prods., Inc. v. Windsor,
A. Rule 23(a) Requirements
The four requirements of Rule 23(a), numerosity, commonality, typicality and adequacy are well recognized and defined by the courts. See Senter v. General Motors Corp.,
1. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” This requirement is not amenable to a strict numerical test. In re Am. Med. Sys., Inc.,
In the instant case, class notice was sent to over 5,000 participants in the Plans, which included almost all of Cincinnati Bell employees who worked for Broadwing and/or Cincinnati Bell during the class period from November 9, 1999 through Februаry 28, 2003. Therefore, there is no question that
2. Commonality
Rule 23(a)(2) requires “questions of law or fact common to the class.” This requirement is interdependent with the impracticability of the joinder requirement. Id. at 1080. Together, these tests form the conceptual basis for class actions. Id.
The class-action was designed as an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Class relief is peculiarly appropriate when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class. For in such cases, the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23.
Id. (quoting General Telephone v. Falcon,
Not every common question satisfies the commonality requirement; at some point of generality and abstraction almost any set of claims exhibits commonality. Sprague v. General Motors Corp.,
Here, each Class Member’s claim raises questions of law or fact that are common to the class. In general, determining Defendants’ liability for ERISA violations is common to all Class Members because a breach of fiduciary duty affects all participants and beneficiaries. Banyai v. Mazur,
In addition, the fundamental claims and defenses pertain to Defendants’ conduct as fiduciaries, which are generally suitable for class treatment. See Rule 23(b)(1)(B) advisory committee’s note. Thus, Rule 23(a)(2) is satisfied because there are questions of law or fact common to the Class.
3. Typicality
The claims or defenses of the representative parties are typical of the claims and defenses of the class. Under Rule 23(a)(3), “the claims or defenses of the representative parties [shall be] typical of the claims or defenses of the class.”
Typicality determines whether a sufficient relationship еxists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiffs injury arises from or is directly related to a wrong to the class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.
In re Am. Med. Sys.,
Differing degrees of injury among class members does not necessarily defeat typicality if the basic injury each сlass member asserts is the same. Bittinger v. Tecumseh Prods. Co.,
In IKON, the court addressed numerous challenges to the typicality requirement.
Therefore, as in IKON, since the representative parties are stаting the same claim, concerning the same conduct and seeking the same relief as the Class Members, Rule 28(a)(3) is satisfied.
4. Adequacy of Representation
Rule 23(a)(4) requires “the representative parties will fairly and adequately protect the interests of the class.” Due process demands this inasmuch as a final judgment will bind all class members. In re Am. Med. Sys.,
To establish adequacy of representation, plaintiffs must satisfy two elements. First, the representative must have interests common with the unnamed members of the class. Id. Second, it must be shown that the representatives — through qualified counsel — will vigorously prosecute the interests of the class. Id.
Here, the first element is satisfied. The plan-wide nature of the relief sought by Plaintiffs unites their interests with those of absent Class Members. In addition, Plaintiffs and each Class Member have been damaged by the same alleged misconduct and, as a result, each has precisely the same interest in achieving the maximum recovery.
The second element is satisfied. Plaintiffs have shown that they are more than adequate representatives for the class. Plaintiffs’ counsel are experienced in representing plaintiffs in ERISA and class action litigation generally. Moreover, the record indicates Plaintiffs’ counsel vigorously and effectively pursued the interests of the Class.
Therefore, Rule 23(a)(4) is satisfied.
B. Rule 23(b) Analysis
To be properly certified, a class action must satisfy' each of the four requirements of Rule 23(a) and must also pass at least one of the tests set forth in Rule 23(b). Rule 23(b) provides:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual membеrs of the class which would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the*379 difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b).
Rule 23(b)(1)(A) “considers possible prejudice to the [defendants while 23(b)(1)(B) looks to possible prejudice to the putative class members.” IKON,
Certification is also appropriate pursuant to Rule 23(b)(2) because all Plaintiffs’ ERISA claims are based on conduct by Defendants that is “generally applicable to the class.” Rule 23(b)(2). Plaintiffs allege that Defendants breached their fiduciary duties to the Class by failing to follow the provisions of the Plans, failing to insure that Broadwing stock was a prudent investment for the Plans, failing to monitor the Plans’ fiduciaries, and failing to disclose material information regarding the value of Broadwing stock to the Plans’ participants. This conduct affected all Plan participants and beneficiaries and, thus, class certification under Rule 23(b)(2) is appropriate because it cannot reasonably be disputed that the conduct was “generally applicable to the class.” Rule 23(b)(2).
For the above reasons, the Courts grants plaintiffs’ motion to approve the settlement class. The Court hereby approves the maintenance of the Action as a class action pursuant to Fed.R.Civ.P. Rule 23(a), 23(b)(1) and (b)(2), with the Class being defined as follows:
All participants and beneficiaries of the Cincinnati Bell Inc. Savings and Security Plan and the Cincinnati Bell Retirement Savings Plan (known as the Broadwing Retirement Savings Plan from August 31, 2001 to July 24, 2003), and any predecessor plan, who held shares or units of the Cincinnati Bell Inc. Common Stock Fund or for whose benefit the Plans held shares of the Broadwing Inc. or Cincinnati Bell Inc. common stock at any time from November 9, 1999 through February 28, 2003 (the “Relevant Period”). Excluded from the Class are the Court, the Defendants, members of their immediate families, thеir legal representatives, heirs, successors or assigns, and any entity in which Defendants have had a controlling interest.
III. Attorneys’ Fees, Costs, and Incentive Payments
The Court conducted a hearing on this matter on June 22, 2006. On the basis of that hearing, and plaintiffs’ motion and supporting materials, the Court finds as follows:
Plaintiffs’ Counsel achieved a proposed Settlement that provides for the immediate recovery of $11,000,000.00, in cash, plus interest (the “Settlement Fund”). There were no objections filed to the proposed settlement, to the request for attorneys fees and costs, nor to the request for payments to the Class Representatives. The Independent ERISA Fiduciary, required to review the settlement under Department of Labor procedures, likewise, has not objected to the settlement, nor to the attorneys fees amount requested.
As noted above, the Class will recover a substantial portion оf the damages they suffered without further delay or risk. The Settlement is the result of arm’s-length negotiations by experienced counsel. The Settlement was presented to this Court for final approval only after Plaintiffs’ Counsel determined that the settlement was in the Class’s best interests.
This action was undertaken and prosecuted on a wholly contingent basis. Plaintiffs’ Counsel have requested that the Court award attorneys fees on a common fund basis in the amount of 23% of the Settlement Fund, or $2,530,000.00, plus accrued interest. Plaintiffs’ Counsel also seek reimbursement of $99,801.36 in litigation expenses which they reasonably and necessarily incurred,
The Court must ensure that class counsel are fairly compensated for the amount of work done and the results achieved. Rawlings v. Prudential-Bache Props., Inc.,
The Court’s function is to determine what the lawyer would receive in the market and to compensate counsel at the fair market value. Revco Securities Litigation, Arsam Co. v. Saloman Brothers, Inc.,
Where Counsel’s efforts create a substantial common fund for the benefit of the Class, they are, therefore, entitled to payment from the fund based on a percentage of that fund. Brotherton v. Cleveland,
The common fund fee award sought here is 23% of the total $11,000,000 recovery. The 23% share is comparable to, and indeed, well below the percentage of the recovery approved in similar cases. Robinson v. Ford Motor Co.,
To compensate for the delay Plaintiffs’ Counsel encountered in receiving compensation, it is appropriate to use current fee rates in calculating the lodestar. See Missouri v. Jenkins,
In this Circuit, the lodestar figure is used to confirm the reasonableness of the percentage of the fund award. Bowling v. Pfizer, Inc.,
While determination of the fee based upon the common fund percentage approach is most appropriate here, the fee requested, if calculated by the lodestar plus multiplier method, would result in a multiplier of 1.6 times the lodestar. A multiplier of between approximately 2.0 and 5.0 existed in the fee awards in this District in Basile v. Merrill Lynch and Brotherton v. Cleveland, further confirming the reasonableness of the 23% common fund requested.
In Ramey v. Cincinnati Enquirer, Inc., the Sixth Circuit identified six factors for consideration in determining the reasonableness of a fee award:
1. The value of the benefit rendered to the class;
2. Society’s stake in rewarding attorneys who produce such benefits in order to maintain an inсentive to others;
3. Whether the services were undertaken on a contingent fee basis;
4. The value of the services on an hourly basis;
5. The complexity of the litigation; and,
6. The professional skill and standing of counsel on both sides.
A review of the Ramey factors also supports the Plaintiffs’ fee request as being fair and reasonable. Plaintiffs secured a substantial benefit for the class and there is a public interest in ensuring that attorneys willing to represent employees in ERISA litigation are adequately paid so that they and others like them will continue to take on such cases. Adequately compensatory fee awards in successful class actions promote private enforcement of and compliance with important areas of federal law. See, Bateman Eichler, Hill Richards, Inc. v. Berner,
An ERISA case involves highly-specialized and complex areas of law. The type of claims brought here, breaches of duty by the Plan’s fiduciaries, are based on rapidly evolving legal theories. There are significant conflicts between the approaches adopted by different trial courts and appеllate courts and most law in this area was decided after this case was filed. Plaintiffs’ Counsel are nationally known leaders in the fields of ERISA, class action and complex litigation and their law firms have a notable record in national and class litigation. See, Declarations of Counsel and resumes. These lawyers vigorously defended their clients against worthy opponents in one of the regions’s largest law firms.
Plaintiffs’ Counsel have unreimbursed expenses of $99,801.36. The expenses are summarized by category in the Connor Declaration and detailed in the respective time and billing records of Plaintiffs’ Counsel. They are reasonable and necessary expenses, including photocopying, postage, travel, lodging, filing fees and Pacer expenses, long distance telephone, telecopier, computer database research, depositions expenses, and expert fees and expenses.
The Court finds appropriate the requested payment to the two Class Representatives, Kevin Streckfuss and Kathleen Kurtz, for their efforts in this case, in a very modest amount of $5,000 each, plus an award from the Fund of out of pocket expenses they incurred (copies, parking, mileage, postage, not to exceed $1,000 each), to be paid by Plaintiffs’ Counsel from the amount reserved for administration of the Fund in the Settlement. These two Plaintiffs located willing counsel, initiated lawsuits, and invested their own time, effort, and funds (in the form of unreimbursed expenses) for the benefit of the Class. Plaintiffs Streckfuss and Kurtz were deposed at length. Their initiative, time, and effort were essential to the successful prosecution of the case and resulted in a significant recovery for the Class. Indeed, several other named plaintiffs were either not willing or able to serve as Class Representatives, making the contributions of Mr. Streckfuss and Mrs. Kurtz even more significant.
Plaintiffs’ Counsel and the Class Representatives are also entitled to interest on their awards and payments, proportional to and on the same conditions and at the same rate as that which is being earned by the Class, starting from the date of deposit of the funds in the Settlement Fund escrow account on or about April 16, 2006.
Accordingly, this Court awards Plaintiffs’ Counsel $2,530,000.00 in attorneys fees and $99,801.36 in litigation expenses, plus accrued interest on these amounts. Named Class Representatives Streckfuss and Kurtz are also granted a payment of $5,000 each, plus reimbursement of their individual’s personal costs of the case, not to exceed $1,000 each.
IV. Disposition
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Final Approvаl of Proposed Settlement and Final Certification of the Class (Doc. 115-1) and Plaintiffs’ Motion for Order Awarding Attorneys’ Fees and Costs and Incentive Payments to Class Representatives (Doc. 110).
Based on the above, and the Settlement Agreement, the Court ORDERS, ADJUDGES AND DECREES as follows:
1. The Court hereby dismisses the Complaints and the Action against the Defendants with prejudice on the merits, and without taxation of costs in favor of or against any party.
*383 2. As of the date of Final Approval of Settlement (as defined in the Agreement), the Plaintiffs, the Plans, and each member of the Class on their own behalf and on behalf of their respective heirs, executors, administrators, past and present partners, officers, directors, agents, attorneys, predecessors, and assigns, shall have released each and all of the Released Persons from the Released Claims, and the Defendants shall be deemed to have released the Plaintiffs, the Settlement Class, and Class Counsel from the Released Claims, in accordance with the terms of the Agreement.
3. The Plaintiffs, the Plans, the Plans’ fiduciaries, and all members of the Settlement Class are hereby permanently barred and enjoined from instituting or prosecuting, either directly, indirectly or in a representative capacity, any other action in any court asserting any and all Released Claims against any and all Released Persons. Defendants are hereby permanently barred and enjoined from instituting or prosecuting, either directly, indirectly, or in a representative capacity, any other action in any court asserting any and all Released Claims against Plaintiffs, the Settlement Class, and Class Counsel.
4. All parties are hereby permanently barred and enjoined from the institution and prosecution, eithеr directly or indirectly, of any actions against any Defendants, their Related Parties, Defendants’ Counsel, any member of the Settlement Class, or Class Counsel based on the amount of any Settlement Claim issued pursuant to the Plan of Allocation approved in the Final Approval of the Settlement.
5. The Court hereby decrees that neither the Agreement nor the Settlement nor this Order is an admission or concession by any Defendant of any liability or wrongdoing. This Order is not a finding of the validity or invalidity of any of the claims asserted or defenses raised in this Action. Neither the Agreement nor the Settlement nor the Order and Final Judgment nor the settlement proceedings nor the settlement negotiations nor any related documents shall be offered or received in evidence as an admission, concession, presumption, or inference against any Defendant in any proсeeding, other than such proceedings as may be necessary to enforce or consummate the Agreement or to establish that such Order and Final Judgment was entered in this case.
6. Except as otherwise provided herein or in the Agreement, each party shall bear its own fees, expenses, and costs. Class Counsel shall allocate the award of attorneys’ fees among counsel for the Class based on their good-faith assessment of the contribution of such counsel to the prosecution of this Action.
7. Without affecting the finality of this Order, the Court retains jurisdiction for purposes of implementing the Agreement and reserves the power to enter additional orders to effectuate the fair and orderly administration and consummation of the Agreement and Settlement, as may from time to time be appropriate, and resolution of any and all disputes arising thereunder.
The Clerk shall enter a final judgment in this case, approving the $11,000,000 Class Settlement, certifying the Settlement Class as provided above, and awarding $2,530,000.00 in attorneys fees and $99,801.36 in litigation expenses to Plaintiffs’ Counsel, plus accrued interest on these amounts, and granting Named Class Representatives Streekfuss and Kurtz a payment of $5,000 each, plus reimbursement of their individual personal costs of the case, not to exceed $1,000 each.
The Clerk shall dismiss the Complaints and this Action in their entirety with prejudice on the merits and without taxation of costs in favor of or against any party.
The Clerk shall remove Doc. 115 and Doc. 110 from the Court’s pending CJRA motions list.
IT IS SO ORDERED.
Notes
. See, e.g., In re WorldCom ERISA Litig.,
. These costs are separate from the expense of providing notice to the class and a professional claims administrator. These expenses will be