This matter comes before the Court upon Plaintiffs’ Motion for Final Approval of the proposed Settlement Agreement
I. BACKGROUND
This matter involves several class actions filed against a multitude of insurers and insurance brokers alleging industry-wide conspiracies, in violation of federal antitrust laws, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state statutory and common law. Plaintiffs are purchasers of insurance, and defendants are insurers (the “Insurer Defendants”) and insurance brokers (the “Broker Defendants”). In 2005, Plaintiffs’ actions were consolidated by the Judicial Panel on Multidistrict Litigation into MDL 1663, In re Insurance Brokerage Antitrust Litigation, and transferred to the District of New Jersey for coordinated pretrial proceedings. Upon transfer, the actions were severed into two consolidated dockets — the first pertaining to claims regarding property and casualty insurance (the “Commercial Case”), and the second pertaining to claims regarding employee benefits insurance (the “Employee Benefits Case”). See In re Ins. Brokerage Antitrust Litig.,
It is evident that this complex matter has a lengthy procedural history. It has been presided over by three district judges, the subject of several motions to dismiss, and taken on appeal to the Third Circuit. Although the parties are familiar with the history of the case, given that such history bears on the instant motion, a discussion of the proceedings is warranted.
After transfer to this District, Plaintiffs filed a separate consolidated amended complaint in each of the Commercial and Employee Benefits Cases. Shortly thereafter, Judge Hochberg — the district judge then presiding over this matter-granted motions to dismiss Plaintiffs’ federal antitrust and RICO claims without prejudice in both cases pursuant to Federal Rule of Civil Procedure 12(b)(6). In re Ins. Brokerage Antitrust Litig., MDL No. 1663,
In response, Plaintiffs filed a Second Consolidated Amended Class Action Complaint (“Second Amended Complaint”) in each of the Commercial and Employee Benefits eases, along with a Revised Statement of Particularity and a Third Amended RICO Case Statement augmenting the Second Amended Complaints’ allegations. For a third time, defendants moved to dismiss under Rule 12(b)(6) and Judge Brown again dismissed Plaintiffs’ federal antitrust and RICO claims, this time with prejudice. In re Ins. Brokerage Antitrust Litig.,
Plaintiffs timely appealed to the Third Circuit. On appeal, the Third Circuit vacated the dismissal of Plaintiffs’ federal antitrust and RICO claims relating to the alleged Marsh-Brokered Excess Casualty Insurance conspiracy. In re Ins. Brokerage Antitrust Litig.,
Following remand of this action by the Third Circuit, the parties actively litigated this matter. In June 2011, the action was transferred from the Hon. Garrett E. Brown, Jr., U.S.D.J. to the Undersigned. Shortly thereafter, this Court approved a settlement with multiple defendants.
Plaintiffs and the remaining defendants resumed litigation and concluded discovery in October 2012. Commencing in the fall of 2012, the parties engaged in a settlement mediation process, under the auspices of former federal Judge Layn Phillips, and submitted to the Court a Settlement Agreement for preliminary approval in March 2013. This is the fifth Settlement Agreement submitted for approval in this action. The Court previously approved four related settlements, in an aggregate amount exceeding $259,800.00, with the Zurich, Gallagher, and Marsh Defendants (the “Zurich Settlement,” “Marsh Settlement” and “Gallagher Settlement,” respectively), as well as additional defendants including AIG, Hartford, Fireman’s Fund and Travelers (the “Global Settlement”). In re Ins. Brokerage Antitrust Litig.,
On April 9, 2013, this Court entered an Order preliminarily approving the proposed settlement and preliminarily certifying a class for settlement purposes (the “Preliminary Approval Order”). Thereafter, Class Counsel filed an application for an award of attorney fees and reimbursement of litigation expenses. Class Counsel also applied for service awards for each named Plaintiff.
On June 21, 2013, Plaintiffs filed a Motion for Final Approval of the Proposed Settlement. In response thereto, the Court has
This Court held a Fairness Hearing on July 17, 2013. Having considered the arguments and submissions regarding the preliminarily-approved Settlement Agreement, and having conducted the Fairness Hearing as required by Fed.R.Civ.P. 23(e)(2), the Court grants Plaintiffs’ Motion for Final Approval of the Settlement Agreement, certifies the Settlement Class for purposes of settlement only, and approves the requested attorney fee award, service awards, and reimbursement of litigation expenses.
II. TERMS OF SETTLEMENT
The Settlement Class consists of “all persons and entities that, during the period from January 1, 1998 through December 31, 2004, inclusive, purchased excess casualty or commercial umbrella insurance policies in any layer of coverage from any insurance company affiliated with any Excess Casualty Insurer Defendant Group through Marsh & McLennan Companies, Inc., or any subsidiaries or affiliates thereof.” (Settlement Agreement at 6-7.)
The Settling Defendants deposited a settlement payment totaling $10.5 million (the “Settlement Fund”) into an interest-bearing escrow account (the “Settlement Escrow Account”) that is being administered pursuant to an escrow agreement. (Pls.’ Mot. Br. at 6.) The costs of implementing and administering the Settlement Agreement have been paid from the Settlement Escrow Account. {Id. at 6-7.)
According to the Settlement Agreement’s Plan of Allocation (Settlement Agreement, Ex. 7), all Settlement Class members shall be allocated a portion of the Net Settlement Fund. Two of the three Settling Defendants, ACE and Chubb, previously entered into settlement agreements with regulatory authorities (the “Regulatory Settlements”) for related conduct. Pursuant to the Regulatory Settlements, ACE and Chubb made payments to and received releases from several Settlement Class members. Thus, the Settlement Class members are divided into two groups: those that previously settled in the Regulatory Settlements (the “Regulatory Settlement Class Members”) and those that did not (the “Non-Regulatory Settlement Class Members”).
Pursuant to the Plan of Allocation, Payments will be made, pro rata, based on the premiums the Settlement Class members paid for their excess casualty insurance policies. The Non-Regulatory Settlement Class members will be allocated 75% of the Net Settlement Fund and will receive a larger pro rata share of their premium payment than the Regulatory Settlement Class Members will receive. The Regulatory Settlement Class Members will be allocated 25% of the Net Settlement Fund and will receive a smaller pro rata share of their premium payment. In addition, as a matter of administrative efficiency, all Settlement Class members will receive a minimum payment of at least $10, and the payments to Settlement Class members that would otherwise receive less than $10 on a straight pro rata basis will be increased to $10.
Class Counsel filed an application for an award of attorney fees in the amount of $3.465 million, which is approximately 33% of the Settlement Fund, and for reimbursement of litigation expenses in the amount of $1,023,188.76. Class Counsel also applied for service awards of $1,000 for each named Plaintiff. (Settlement Agreement at 11-12). Plaintiffs seek to have the attorney fees, litigation expenses, and service awards paid solely from the Settlement Escrow Account. (Pl. Mot. Br. at 7).
III. NOTICE
The names and addresses of the Settlement Class members were obtained through: (1) the existing records of Class Counsel and the claims administrator; and (2) a reasonable search by the Settling Defendants of their records relating to excess casualty or commercial umbrella insurance policies
Notice of the Settlement was disseminated to the Settlement Class as follows: (1) a “Postcard Notice” was mailed to the Settlement Class members (Id., Ex. 4); (2) a “Detailed Notice” (Id., Exhibit 5) was posted on the website www.insurancebrokerage settlement2013.com and Class Counsel’s firm websites; and (3) a “Publication Notice” (Id., Ex. 6) was published two times in all editions of The New York Times, The Wall Street Journal, USA Today, and Business Insurance, and in one issue of RM Magazine. (Decl. of Daniel Coggeshall ¶¶2-15). All notices were mailed by May 9, 2013. (Pl. Mot. Br. at 9).
The Notices explained that any Settlement Class members desiring to be excluded from or object to the Settlement Agreement should file their requests for exclusion or objections no later than June 28, 2013. No objections to the Settlement Agreement have been lodged, only one objection to the fee request was filed, and only two requests for exclusion have been received. (Coggeshall Decl. ¶¶ 16-17; Pis. Reply Br. 2). According to Plaintiffs, one such request for exclusion was filed on behalf of an entity who does not appear to be a member of the Settlement Class. (Supplemental Declaration of Daniel Coggeshall ¶ 3).
IV. FINAL APPROVAL
Under Federal Rule of Civil Procedure 23(e), approval of a class settlement is warranted only if the settlement is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). Acting as a fiduciary responsible for protecting the rights of absent class members, the Court is required to “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interest of those whose claims will be extinguished.” In re Cendant Corp. Litig.,
(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; (9) and the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id.
Additionally, a presumption of fairness exists where a settlement has been negotiated at arm’s length, discovery is sufficient, the settlement proponents are experienced in similar matters and there are few objectors. In re Warfarin Sodium Antitrust Litig.,
Turning to each of the Girsh factors, the Court finds as follows:
A. Complexity, Expense and Likely Duration of the Litigation
The first factor, the complexity, expense and likely duration of the litigation, is considered to evaluate “the probable costs, in both time and money, of continued litigation.” Cendant,
This litigation involves federal and state antitrust claims, as well as alleged RICO and common law violations, by numerous brokerage and insurance companies. Over the course of this nine year litigation, Class Counsel have reviewed over sixty million pages of documents and taken over 300 depositions. (Pls.’ Mot. Br. at 4-5). Since the case was remanded by the Third Circuit, Class Counsel took 30 additional depositions and expended significant effort reviewing new documentary evidence, including the review of trial, deposition and internal investigation transcripts, as well as nearly 10 million newly-produced documents. (Id. at 5). Class Counsel also engaged in extensive discovery-related motion practice before the magistrate judge in this ease. (Id.) Further, as stated above, settlements have already been achieved and approved with the Zurich, Marsh and Gallagher Defendants. See In re Ins. Brokerage Antitrust Litig.,
By reaching a favorable Settlement with the remaining Defendants prior to the trial, Class Counsel have avoided significant expense and delay, and have also provided an immediate benefit to the Settlement Class. A trial on the merits would entail considerable expense and would not necessarily end the litigation. As explained by the Court in the prior three settlements, “[t]o proceed with litigation of this matter would undoubtedly become a costly and lengthy process for all parties.” In re Ins. Brokerage Antitrust Litig.,
As a result, this factor weighs strongly in favor of approval of the Settlement. See In re Warfarin Sodium Antitrust Litig.,
B. Reaction of the Class to the Settlement
In determining the reaction of the class to the settlement, this second factor “attempts to gauge whether members of the class support the settlement.” In re Lucent Techs., Inc., Sec. Litig.,
C. The Stage of the Proceedings and the Amount of Discovery Completed
The Court should consider the stage of the proceedings and the amount of discovery completed in order to evaluate the degree of ease development that Class Counsel have accomplished prior to settlement. Through this lens, courts can determine whether Class Counsel had an “adequate appreciation of the merits of the case before negotiating.” Cendant,
D. Risks of Establishing Liability
This risks of establishing liability should be considered 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.” Cendant,
To succeed at trial, Plaintiffs must prove the elements of their various claims, which include federal antitrust, RICO and state law claims. Summary judgment motions, trial and potential appeals still remain to be completed. As explained in connection with approval of the Marsh, Gallagher, Zurich and Global Settlements, “this case involves difficult factual and legal issues which would have translated into protracted litigation and accumulating expenses, in both time and money.” In re Ins. Brokerage Antitrust Litig.,
E. Risks of Establishing Damages
This factor, which measures the risks of establishing damages, also “attempts to measure the expected value of litigating the action rather than settling it at the current time.” Cendant,
F. Risks of Maintaining Class Action Status through Trial
The Court also finds that the sixth factor, the risk of maintaining class action status through trial, weighs in favor of approval of the Settlement. “Because the prospects for obtaining certification have a great impact on the range of recovery one can expect to reap from the [class] action, this factor measures the likelihood of obtaining and keeping a class certification if the action were to proceed to trial.” In re Warfarin Sodium Antitrust Litig.,
G. The Settling Defendants’ Ability to Withstand a Greater Judgment
In Cendant, the Third Circuit interpreted this factor as concerning “whether the defendants could withstand a judgment for an amount significantly greater than the Settlement.”
H. The Range of Reasonableness of the Settlement Fund in Light of the Best Possible Recovery and the Attendant Risks of Litigation
The eighth and ninth factors, the range of reasonableness of the Settlement Fund in light of the best possible recovery and the attendant risks of litigation, also weigh in favor of settlement. “The fact that a proposed settlement may only amount to a fraction of the potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved. The percentage recovery, rather must represent a material percentage recovery to plaintiff in light of all the risks considered under Girsh.” In re Cendant Corp. Sec. Litig.,
I. Summary of Girsh Factors
In conclusion, the Court holds that the nine Girsh factors weigh in favor of approval. The Settlement Agreement was reached after arm’s-length negotiations between experienced counsel after completion of a significant amount of discovery and motion practice. Therefore, the Court concludes that the settlement of $10.5 million represents a reasonable and adequate result for the Settlement Class considering the substantial risks Plaintiffs face and the immediate benefits provided by the Settlement.
J. Plan of Allocation
The Court must determine whether the Plan of Allocation contemplated in the Settlement Agreement is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). As noted above, the Settlement Agreement creates a Settlement Fund of $10.5 million. (Settlement Agreement, Ex. 7.) (Id.) This Court concludes that the Plan satisfies the standard set forth in Rule 23(e).
V. CLASS CERTIFICATION
On April 9, 2013, the Court preliminarily approved the proposed Settlement Agreement and preliminarily certified the Settlement Class. Rule 23 of the Federal Rules of Civil Procedure requires the Court to engage in a two-step analysis to determine whether to certify a class action for settlement purposes. First, the Court must determine if Plaintiffs have satisfied the prerequisites for maintaining a class action as set forth in Rule 23(a). If Plaintiffs can satisfy these prerequisites, the Court must then determine whether the alternative requirements of Rule 23(b) are met. See Fed.R.Civ.P. 23(a) advisory committee’s note. “Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial.” Amchern Prods., Inc. v. Windsor,
A. Rule 23(a) Factors
1. Numerosity
Courts will ordinarily discharge the prerequisite of numerosity if “the class is so
Here, Settlement Class members number more than 20,000. (Pls.’ Mot. Br. at 24.) The Claims Administrator retained by Class Counsel mailed 22,457 Postcard Notices to potential Class Members. (Coggeshall Decl. ¶ 11). “There can be no serious question that joinder of all these parties, geographically dispersed throughout the United States, would be impracticable.” In re Corrugated Container Antitrust Litig.,
2. Commonality
Plaintiffs must demonstrate that there are questions of fact or law common to the class to satisfy the commonality requirement. Fed.R.Civ.P. 23(a)(2). The Supreme Court recently clarified the standard, emphasizing that a plaintiff must show that class members “have suffered the same injury,” not merely a violation of the same law. Wal-Mart Stores, Inc. v. Dukes, - U.S. -,
Due to the conspiratorial nature of allegations in antitrust and RICO actions, such cases often present common questions of law and fact and are frequently certified as class actions. See, e.g., In re Flat Glass Antitrust Litig.,
In this case, there are many common questions of law and fact. These include, inter alia: (a) whether the Settling Defendants engaged in a contract, combination or conspiracy to allocate the market for the sale of insurance; (b) whether the Settling Defendants’ contract, combination or conspiracy reduced and unreasonably restrained compe
3. Typicality
Rule 23(a)(3) requires that a representative plaintiff’s claims be “typical of the claims ... of the class.” “The typicality requirement is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals.” Barnes v. Am. Tobacco Co.,
Here, the named Plaintiffs’ claims are typical of those brought by the Settlement Class members at large. See, e.g., In re Pet Food Prods. Liab. Litig.,
4. Adequacy of Representation
Finally, the Court must consider adequacy of representation both as to the named Plaintiffs and their Class Counsel under Rules 23(a) and (g). The class representatives should “fairly and adequately protect the interests of the class.” Georgine v. Amchem Products, Inc.,
Here, there is no indication that the named Plaintiffs’ interests are antagonistic to those of the absent class members. “The central questions in this case ... animate[ ] in an identical fashion the claims of both groups. In addressing these common questions, the named Plaintiffs have advocated as vigorously for the absent class members as they have for themselves.” In re Ins. Bro
As to Class Counsel’s adequacy, the Court has already found that the two firms serving as Plaintiffs’ Class Counsel have “successfully prosecuted numerous antitrust actions,” and that the individual attorneys representing these firms, Edith Kallas and Bryan Clobes, are “clearly well qualified and experienced class action attorneys who have been involved in similar ... litigation around the country.” In re Ins. Brokerage Antitrust Litig.,
With this last requirement satisfied, it is clear that the Settlement Class in this case has demonstrated compliance with the elements of Rules 23(a) and (g).
B. Rule 23(b)(3) Factors
The Court must next address the question of whether the class action also comports with the requirements of Rule 23(b). Under 23(b)(3), the Court must find both 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 available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3); (Pls.’ Mot. Br. at 29.) As explained below, the class action in this case readily meets these requirements of predominance and superiority.
1. Questions of Law and Fact Common to the Class Predominate
To satisfy the predominance requirement, parties must do more than merely demonstrate a “common interest in a fair compromise;” instead, they must provide evidence that the proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor,
Here, as discussed in the sections on commonality and typicality, the claims of both the named Plaintiffs and the absent class members arise from the same set of facts regarding the alleged collusive and anti-competitive behavior of the Settling Defendants. In affirming the prior settlements, the Third Circuit found that common issues predominated. See In re Ins. Brokerage Antitrust Litig.,
2. A Class Action is Superior to Other Available Methods
To demonstrate that a class action is “superior to other available methods” for bringing suit in a given case, the Court must “balance, in terms of fairness and efficiency, the merits of a class action against those of
To litigate the individual claims of the potential class members would place a heavy burden on the judicial system and require unnecessary duplication of effort by all parties. It would not be economically feasible for the Settlement Class members to seek individual redress. The litigation of all claims in one action is far more desirable than numerous, separate actions and therefore the superiority requirement is met.
VI. NOTICE
“In the class action context, the district court obtains personal jurisdiction over the absentee class members by providing proper notice of the impending class action and providing the absentees with the opportunity to be heard or the opportunity to exclude themselves from the class.” In re Prudential Ins. Co. of Am. Sales Practice Litig. Agent Actions,
Additionally, in this ease, where a settlement class has been provisionally certified and a proposed settlement preliminarily approved, proper notice must meet the requirements of Federal Rules of Civil Procedure 23(c)(2)(B) and 23(e). Larson v. Sprint Nextel Corp., No. 07-5325,
The Court finds that the parties complied with the requirements set forth by Rules 23(e)(2)(B) and 23(e). The notice plan was thorough and included all of the essential elements necessary to properly apprise absent Settlement Class members of their rights. The Postcard Notices included: (1) the nature of the action and the class claims;
VII. ATTORNEY FEES
As stated above, Class Counsel filed an application for an award of attorney fees in the amount of $3,465 million, which is 33% of the Settlement Fund, and for reimbursement of litigation expenses in the amount of $1,023,188.76. Class Counsel also applied for service awards of $1,000 for each of the remaining named Plaintiffs.
The Court previously approved attorney fees, expenses, and incentive awards in connection with the Zurich, Gallagher, Marsh and Global Settlements. The Court found each request reasonable, and granted a total of $54,495,284 in attorney fees and $8,763,908 in expenses, and $805,000 in incentive awards in connection with the previous settlements.
Plaintiffs request that the attorney fees, litigation expenses, and service awards be paid solely from the Settlement Fund. (Pis.’ Mot. Br. 7.) The Settling Defendants do not oppose the sums requested by Class Counsel, and only the J. Corman Family Limited Partnership # 5 (the “Corman Partnership”) has filed a general objection to the requested fees. For the reasons that follow, the Court will grant the requested attorney fees, reimbursement of expenses and incentive award payments.
Class Counsel submit that they have “expended tremendous effort and resources prosecuting the claims, including conducting extensive factual investigation and legal research, drafting and amending pleadings, and working on hard fought and complex discovery and motion practice involving over 100 defendants and numerous third parties, coordinating with scores of individual, tag-along plaintiffs, and successfully prosecuting appeals after dismissal of the action.” (Pis.’ Fee Br. 2.) Further, Class Counsel advise
In a written submission to the Court, the only objector as to fees, the Corman Partnership, argues that the Court should limit the fees and expenses to 25% of the settlement. (Corman Objection 1.) Writing on behalf of the Corman Partnership, Jack Corman argues that “[his] experience in settlements of the nature of this cause is at most an attorneys fees [sic] of 25% of the net amount of the settlement after reasonable expenses” and indicates his personal belief that the requested fees and expenses in this case are too high. (Id.) Corman further states that the Notice does not suggest the net amount that a particular Settlement Class member may receive after the payment of fees and expenses. (Id.) Having reviewed the parties’ submissions, the Court concludes, as discussed below, that the Corman Partnership’s objection is without merit. The sums requested by Class Counsel are reasonable and will be approved.
A. Standard for Judicial Approval of Fees
The awarding of fees is within the discretion of the court, so long as the court employs the proper legal standards, follows the proper procedures, and makes findings of facts that are not clearly erroneous. In re Cendant Corp. PRIDES Litig.,
Notwithstanding this deferential standard, a district court is required by Gunter v. Ridgewood Energy Corp.,
This Court will review the fee application under a percentage of recovery analysis with a lodestar cross-check. “Relevant law evidences two basic methods for evaluating the reasonableness of a particular attorney fee request — the lodestar approach and the percentage-of-recovery approach. Each has distinct attributes suiting it to particular types of cases.” Varacallo v. Massachusetts Mut. Life Ins. Co.,
B. Relevant Factors
The Court finds that the totality of the Gunter factors weighs strongly in favor of approval of the fee award for the same reasons provided in this Court’s analysis of the Girsh factors. Given the similarity and overlap of the Gunter and Girsh factors, the Court incorporates by reference the reasons cited above under the Girsh test for approval of the Settlement Agreement. The Court will now discuss additional reasons that support approval of attorney fees in this matter.
1. Size of the Fund Created and Number of Persons Benefited
With regard to the size and nature of the Settlement Fund and the number of persons benefited by the Settlement Agreement, Class Counsel were able to obtain a significant settlement of $10.5 million for the Settlement Class, despite the substantial risks of establishing liability. Further, each of the approximately 20,000 insurance purchasers who are members of the Settlement Class will receive payment from the Settlement Fund. (Pis.’ Fee Br. 11.) As Class Counsel notes, such payment augments monies the Settlement Class members have previously received in connection with earlier settlements in this ease, as well as settlements by state regulatory authorities with the defendants. (Id.) As such, this factor weighs in favor of approval.
2. Presence or Absence of Substantial Objections by Members of the Class to Settlement Terms and/or Fees Requested by Counsel
The absence of substantial objections by Settlement Class members to the fees requested by Class Counsel strongly supports approval. As previously noted, only the Cor-man Partnership filed a general objection to the fees sought by Class Counsel. Plaintiffs have provided information that demonstrates a negative multiplier on Class Counsel’s lodestar fees of .32. (Pis.’ Fee Br. 19.) Moreover, as discussed more fully below, the fees requested by Class Counsel fall within the range of amounts awarded in similar actions when approving attorney fees. As such, the Court overrules the Corman Partnership’s objection to the requested fees.
3. Skill and Efficiency of Attorneys
Class Counsel include notably skilled attorneys with experience in antitrust, class actions and RICO litigation. (Pls.’ Fee Br. 11.) The substantial settlement sum negotiated by Class Counsel, not only in this Settlement, but also in the Zurich, Gallagher, Marsh and Global Settlements, further evidences their competence. In re Warfarin Sodium Antitrust Litig.,
4. The Complexity and Duration of the Litigation
This action involves federal and state antitrust laws, RICO and common law. An antitrust action is clearly a complex action to prosecute. In re Linerboard Antitrust Litig., MDL 1261,
5. The Risk of Non-Payment
Class Counsel submit that they undertook this action on a contingent fee basis, assuming a substantial risk that they might not be compensated for their efforts. (Pls.’ Fee Br. 13-14.) Courts recognize the risk of nonpayment as a major factor in considering an award of attorney fees. See In re Prudential-Bache Energy Income P’ships Sec. Litig., No. 888,
6. The Amount of Time Devoted to the Litigation
Class Counsel argue that they have devoted a tremendous amount of time to this litigation. Specifically, through February 28, 2013, Class Counsel indicate that they have spent over 444,110 hours in prosecuting this ease on behalf of the Settlement Class for an aggregate lodestar of approximately $182,601,243. (Pls.’ Fee Br. 15.) Additionally, Class Counsel assert that they have incurred approximately $9.75 million in litigation expenses to date. (Id.) Throughout this action, over fifty law firms were involved on behalf of Plaintiffs and specific work was allocated to different firms to avoid duplication. (Id.) Based on the amount of time expended on this matter and the number of attorneys involved in the negotiation and ongoing litigation, this factor weighs strongly in favor of approval.
7. Awards in Similar Cases
The Court must also take into consideration amounts awarded in similar actions when approving attorney fees. Specifically, the Court must: (1) compare the actual award requested to other awards in comparable settlements; and (2) ensure that the award is consistent with what an attorney would have received if the fee were negotiated on the open market. In re Remeron Direct Purchaser Antitrust Litig., No. 03-0085,
The second part of this analysis addresses whether the requested fee is consistent with a privately negotiated contingent fee in the marketplace. The percentage-of-the-fund method of awarding attorney fees in class actions should approximate the fee that would be negotiated if the lawyer were offering the services in the private marketplace.
To determine the market price for an attorney’s services, the Court should look to evidence of negotiated fee arrangements in comparable litigation. Continental Illinois Sec. Litig.,
8. Conclusion
In sum, for all the reasons stated above, the Court concludes that the requested fee by Class Counsel is fair and reasonable according to the Gunter factors.
C. Lodestar Cross-Check
The Third Circuit has stated that when an award is based on a percentage of recovery, it is sensible to confirm the reasonableness of the award using the lodestar method. In re Rite Aid,
In the present case, the proposed fee award presented by Class Counsel is 33% of the Settlement Fund. Class Counsel submit that the total number of hours expended by the attorneys and paraprofessionals through February 28, 2013
The reasonable attorney rate is determined by reference to the marketplace. Missouri v. Jenkins,
In their submissions, Class Counsel summarized the hours, costs, and their lodestar through February 28, 2013. It appears that the hourly rate being used by Class Counsel is approximately $411.16.
D. The Corman Partnership’s Objection
As previously noted, the Corman Partnership filed a general objection to the aforementioned fee award. The Corman Partnership proposes, without providing any support, that the fee award should be limited to 25%, rather than 33% of the settlement. Above, the Court details the reasonableness of the fee award sought by Class Counsel and explains that the fee request is well within the range of fees deemed acceptable by courts when approving settlements in similar cases. Thus, the Court finds that the Corman Partnership’s objection lacks merit and requires no further discussion.
E. Expenses
Class Counsel also request reimbursement for expenses incurred during this litigation. Although unreimbursed litigation expenses total $1,039,004.45, Class Counsel seek reimbursement for $1,023,188.76
F. Incentive Awards
Class Counsel also request that the Court approve the payment of incentive awards to each of the eight named Plaintiffs in the amount of $1,000. The total incentive awards requested for all eight named Plaintiffs is therefore $8,000. Class Counsel contend that the named Plaintiffs spent a significant amount of their own time and expense litigating these cases for the benefit of the absent members of the Settlement Class and should be compensated for their efforts. See, e.g., In re Lorazepam & Clorazepate Antitrust Litig.,
G. Conclusion
For the foregoing reasons, the Court approves Class Counsel’s request for attorney fees, reimbursement of expenses and incentive award payments.
VIII. CONCLUSION
Because the named Plaintiffs have satisfied all of the requirements of Fed.R.Civ.P. 23, this Court certifies the proposed class for purposes of this Settlement and approves the Settlement Agreement. The Court also grants the applications of Class Counsel for attorney fees, reimbursement of expenses and incentive award payments. An appropriate Order and Judgment accompany this Opinion.
Attachment A — Settling Defendants
• ACE Defendants: ACE Limited, ACE INA Holdings, Inc., ACE USA, Inc., ACE American Insurance Company, Westchester Surplus Lines Insurance Company, Illinois Union Insurance Company, Indemnity Insurance Company of North America, ACE Group Holdings, Inc., ACE U.S. Holdings, Inc., Westchester Fire Insurance Company, INA Corporation, INA Financial Corporation, INA Holdings Corporation, ACE Property and Casualty Insurance Company, Pacific Employers Insurance Company
• Chubb Defendants: The Chubb Corporation, Federal Insurance Company, Executive Risk Indemnity Inc., Vigilant Insurance Company, Chubb & Son Inc.
• Munich Re Defendants: Munich Reinsurance Company, American Re Corporation, n/k/a Munich Re America Corporation, American Re-Insurance Company, n/k/a Munich Reinsurance America, Inc., American Alternative Insurance Corporation
Notes
. The Settling Defendants are listed in Exhibit A hereto.
. The Court considers any new arguments not presented by the parties in their papers or at the Fairness Hearing to be waived. See Brenner v. Local 514, United Bhd. of Carpenters & Joiners,
. The Third Circuit also vacated: (1) Judge Brown’s decision not to exercise supplemental jurisdiction over Plaintiffs’ state law claims; and (2) the dismissal of Plaintiffs’ RICO claim based on an alleged CIAB enterprise with respect to the broker defendants. In re Ins. Brokerage Antitrust Litig.,
. One objection to the request for attorney fees and expenses was filed on behalf of the J. Cor-man Family Limited Partnership # 5. The objection raises no issues regarding the Settlement, but merely addresses Class Counsel’s fees and expenses. Accordingly, the objection shall be discussed in connection with the Court’s analysis of that request.
. The attorney fees and expenses granted to Class Counsel in connection with the Zurich, Gallagher, Marsh and Global Settlements breaks down as follows:
(1) Zurich Settlement: Attorney Fees: $25,843,000, Expenses: $3,957,000, Incentives: $150,000, Total: $29,950,000 ("Zurich Fee Opinion”). In re Ins. Brokerage Antitrust Litig.,
(3) Marsh Settlement: Attorney Fees: $12,180,804, Expenses: $1,999,196, Incentives: $320,000, Total: $14,500,000 (“Marsh Fee Opinion”). In re Ins. Brokerage Antitrust Litig.,
. The Court will rely upon the February 28, 2013 date in performing the lodestar cross-check. See Varacallo v. Mass. Mut. Life Ins. Co.,
. The Court arrived at this rate by dividing the total lodestar amounts by the total hours worked. Through February 28, 2013, the total hours worked was 444,110 and the lodestar provided was $182,601,243. (Kallas and Clobes Decl., Ex. A.) The result is a rate of $411.16 per hour. The hourly rate used by Class Counsel in the Marsh Settlement was approximately $378.60. The hourly rate used by Class Counsel in the Gallagher Settlement was approximately $363.76. The hourly rate used by Class Counsel in the Zurich Settlement was approximately $365.90. The hourly rate used by Class Counsel in the Global Settlement was approximately $380.58.
. This amount represents the total expenses incurred by Class Counsel since the action was remanded to this Court by the Third Circuit. (Pls.’ Fee Br. 20.) Class Counsel further reduced this request from the $1,035,000 originally requested in their Fee Brief after receiving invoice credits from their data hosting service provider. (Pls. Reply Br. 4).