exhibit 1 - steel antitrust litigation settlement website no. 08-cv-5214 ... (nucor, steel dynamics,...

EXHIBIT 1

Case: 1:08-cv-05214 Document #: 519-2 Filed: 10/01/14 of 21 PageID #:19558

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

IN RE: STEEL ANTITRUST LITIGATION ______________________________________ THIS DOCUMENT RELATES TO ALL DIRECT PURCHASER ACTIONS: Standard Iron Works v. ArcelorMittal, et al., Case No. 08-cv-5214 Wilmington Steel Processing Co., Inc. v. ArcelorMittal, et al., Case No. 08-cv-5371 Capow, Inc. d/b/a Eastern States Steel v. ArcelorMittal, et al., Case No. 08-cv-5633 Alco Industries, Inc. v. ArcelorMittal, et al., Case No. 08-cv-6197

Case No. 08-cv-5214

Honorable James B. Zagel

Gulf Stream Builders Supply, Inc. v. ArcelorMittal, et al., Case No. 10-cv-4236

JOINT DECLARATION OF JEFFREY S. ISTVAN AND MICHAEL J. GUZMAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF

SETTLEMENTS WITH ARCELORMITTAL S.A., ARCELORMITTAL USA LLC, AND UNITED STATES STEEL CORPORATION, AND CLASS

COUNSEL’S MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF EXPENSES

Jeffrey S. Istvan and Michael J. Guzman declare and state as follows:

1. Jeffrey S. Istvan states that he is a member of the law firm of Fine Kaplan

and Black, R.P.C. (“Fine Kaplan”) and is one of the Court-appointed Interim Co-Lead

Counsel for the Plaintiff Class in this litigation.


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2. Michael J. Guzman states that he is a partner in the law firm of Kellogg,

Huber, Hansen, Todd, Evans & Figel, PLLC (“Kellogg Huber”) and is one of the Court-

appointed Interim Co-Lead Counsel for the Plaintiff Class in this litigation.

3. Jeffrey S. Istvan and Michael J. Guzman (collectively, “Co-Lead

Counsel”) submit this Declaration in support of (i) Plaintiffs’ Motion for Final Approval

of Settlements with ArcelorMittal S.A., ArcelorMittal USA LLC, and United States Steel

Corporation; and (ii) Class Counsel’s Motion for Attorneys’ Fees and Reimbursement of

Expenses. We have personal knowledge of the matters set forth herein and, if called as

witnesses, we could and would testify competently as follows:

THE SETTLEMENTS ARE FAIR AND REASONABLE

4. The settlements with ArcelorMittal ($90 million) and U.S. Steel ($58

million) (collectively, “the Settlements”) were the product of extensive good faith, arm’s

length negotiations conducted over a period of months between Co-Lead Counsel and

counsel for the settling Defendants.

5. There was no collusion in connection with the Settlements, nor have the

settling Defendants provided for any payment of attorneys’ fees. Instead, the Settlement

negotiations were protracted, adversarial and hard-fought, with any and all fees to be

awarded by the Court pursuant to the common fund doctrine.

6. In the experienced good faith judgment of Co-Lead Counsel, the

Settlements deliver an excellent result for the Class given the nature of the case and the

risks of continued litigation.

7. The Settlements with ArcelorMittal and U.S. Steel provide for a

guaranteed cash benefit of $148 million—payable promptly to class members without the


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need for an onerous claims process—while the litigation continues against three

remaining Defendants (Nucor, Steel Dynamics, and SSAB) under principles of joint and

several liability.

8. The Settlements bring the total common fund recovery to $163.9 million

(i.e., a total of $15.9 million from CMC, Gerdau and AK Steel, plus $148 million from

ArcelorMittal and U.S. Steel), which is a substantial and meaningful recovery for the

approximately 5,300 class members.

9. The Settlements are fair and reasonable given the risks of continued

litigation, which include, inter alia, Plaintiffs’ pending motion for class certification; the

possibility of appeal of the class certification decision under Rule 23(f); and, assuming

the Class is certified, all the risks of continued litigation on the merits (e.g., summary

judgment, Daubert, evidentiary challenges, trial risk on liability and damages, post-trial

motions, and the possibility of several stages of appeal up to and including the Supreme

Court).

10. In addition to the nine-figure monetary benefit to the Class, the

Settlements deliver substantial non-monetary benefits in the form of cooperation from

ArcelorMittal and U.S. Steel, including production of previously unproduced documents

and phone records, interviews and depositions from certain key executives, assistance in

locating former employees, and authentication of business records for purposes of

admissibility at trial.

11. Significantly, moreover, as of the date of this filing, no class member has

objected to any aspect of any of the Settlements reached in this case.


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12. For all of these reasons, Co-Lead Counsel strongly endorse the

Settlements as fair, reasonable, adequate, and in the best interests of the Class.

SETTLEMENT NOTICE AND ADMINISTRATION COSTS

13. Class Counsel have moved for an order authorizing the payment of

settlement notice and administration costs from the Settlement Funds. The costs incurred

to date are as follows:1

The Garden City Group, Inc., $109,242.95

Info Tech, Inc., $1,200.00

14. Based on Class Counsel’s experience and supervision of all work relating

to Settlement notice and administration, the costs reported in paragraph 13 above were

reasonable and necessary.

HISTORY OF LITIGATION AND SUMMARY OF WORK

15. Class Counsel have moved for an award of attorneys’ fees and

reimbursement of litigation expenses from the $163.9 million common settlement fund.

As described in more detail below, the history of the case supports Class Counsel’s one-

third (33.33%) fee request, given that Class Counsel built the claims from the ground up

and bore significant risk and costs to pursue the litigation on behalf of the Class.

16. Class Counsel began investigating potential collusion in the steel industry

in early 2008. From that time through the filing of the initial complaint in September

2008, our firms devoted substantial resources to the case including, inter alia, interviews

1 These figures include only the costs of the ArcelorMittal and U.S. Steel notice

and administration. Class Counsel requested the Court’s authorization to pay the costs incurred in connection with CMC, Gerdau and AK Steel settlements during the final approval proceedings for those settlements in July 2014.


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with industry professionals, review of industry documents, engaging experts to evaluate

the issues, and performing legal research. In total, we devoted 1434.90 hours to the

matter prior to September 12, 2008, equating to approximately $902,222.25 of Class

Counsel’s time (“lodestar”) at current billing rates.

17. Based on our investigation, we identified strong foundation for alleging

that Defendants, the nation’s largest steelmakers, had engaged in collusive behavior in

the production and sale of steel products. At the same time, we recognized that any

litigation of this type would involve significant risk.

18. Accepting these risks, we agreed to handle the case on an entirely

contingent basis (i.e., to advance all time and litigation costs to prosecute the claims), and

we filed the initial complaint on behalf of Standard Iron Works on September 12, 2008.

See Standard Iron Works v. ArcelorMittal, et al., No. 08-cv-5214. A series of related

cases were later filed in this district. See Wilmington Steel Processing Co., Inc. v.

ArcelorMittal et al., No. 08-cv-5371; Capow, Inc. v. ArcelorMittal et al., No. 08-cv-

5633; MPM Display, Inc. v. ArcelorMittal et al., No. 08 C 5700; REM Sys., Inc. v.

ArcelorMittal et al., No. 08-cv-5942;2 Alco Indus. Inc. v. ArcelorMittal, et al., No. 08-cv-

06197; Gulf Stream Builders Supply, Inc. v. ArcelorMittal, et al, No. 10-cv-4236.

19. Co-Lead Class Counsel then took the lead in (i) organizing the parties and

counsel in the related actions; (ii) consolidating all direct purchaser cases before this

Court; and (iii) negotiating various case management orders with Defendants. See, e.g.,

Dkt. Nos. 28, 48 (initial case management orders), Dkt. Nos. 228, 235 (protective orders),

Dkt. No. 258 (expert discovery order).

2 The MPM Display and REM Systems cases were later voluntarily dismissed.


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20. On January 2, 2009, Defendants moved to dismiss for failure to state a

claim. Dkt. No. 110. Because Plaintiffs’ complaint included detailed factual allegations,

Defendants introduced a large number of exhibits (beyond the four corners of the

complaint) in support of their motion to dismiss, which the Court agreed to consider

under Rule 12. See Dkt. Nos. 111-119.

21. Class Counsel devoted substantial resources to opposing Defendants’

motion with an equally fact-intensive opposition brief, see Dkt. No. 132, and to preparing

for oral argument.

22. The Court heard argument on February 26, 2009, with Plaintiffs’

presentation handled by Michael Kellogg, a founding partner of Kellogg Huber and

respected Supreme Court and antitrust specialist.

23. On June 12, 2009, the Court denied Defendants’ motion to dismiss,

relying largely on the extensive factual record developed and introduced by Class

Counsel. Dkt. No. 170.

24. After prevailing on the motion to dismiss, Class Counsel drafted and

served discovery on all eight Defendants, which triggered a series of case management

disputes about how class certification discovery should proceed. See, e.g., Dkt. Nos. 181,

211, 221, 233.

25. On January 28, 2010, the Court ordered a phased discovery schedule

under which Plaintiffs received limited executive-level discovery relevant to class

certification issues from two of the eight Defendants, which Plaintiffs were then

permitted to use to demonstrate the relevance of executive-level discovery from all

Defendants with respect to class certification issues. See 1/28/2010 Status Hearing Tr.


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26. By random draw, this first phase of discovery proceeded with Defendants

U.S. Steel and Gerdau. Between February and October 2010, Class Counsel engaged in

exhaustive meet and confers with these two Defendants over issues including (i) the

identity of relevant custodians, (ii) the substantive scope of discovery, (iii) on-site search

and document collection protocols, (iv) electronic keyword searches and protocols, (v)

production of paper and handwritten records, (vi) document preservation issues, (vii) an

array of data discovery issues, and much more.

27. In parallel, Class Counsel devoted substantial time and effort to obtaining

transaction, financial, and operational data from all eight Defendants. This process was

challenging and involved, first, obtaining transaction-specific sales data on nearly 30

million steel transactions. Because Defendants used different software and formats for

their various sales databases, Class Counsel engaged in protracted back and forth to

obtain, process, and understand the relevant information. Working closely with

Plaintiffs’ experts, Class Counsel managed this process.

28. Similar work was necessary to obtain Defendants’ financial and

operational data for the relevant period, including monthly price, cost, steel production

and capacity data. Class Counsel was required to (i) identify the relevant

financial/cost/production reports for each of the eight Defendants; (ii) search Defendants’

respective document productions to collect all relevant reports; (iii) follow up with

certain Defendants to fill identified gaps in the production; and ultimately (iv) input the

relevant data into usable electronic format. Working closely with Plaintiffs’ experts,

Class Counsel completed this process as well.


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29. Class Counsel finished the initial phase of U.S. Steel and Gerdau

executive-level discovery in late 2010, after which Plaintiffs moved to compel similar

executive-level class certification discovery from the other six Defendants. See Dkt. No.

261 (Plaintiffs’ motion to compel filed November 19, 2010).

30. On February 3, 2011, after briefing and argument, including a hearing at

which Class Counsel presented some of the fruits of the Gerdau and U.S. Steel discovery,

the Court overruled Defendants’ objections and allowed executive-level class

certification discovery to proceed against the other six Defendants. Dkt. No. 279.

31. Class Counsel devoted the next 16 months to obtaining and reviewing the

same type of discovery previously obtained from U.S. Steel and Gerdau, including

dozens of meet and confers with the “other six” Defendants on essentially the same

issues: custodians, substantive scope, search and collection protocols, electronic

keywords, paper and handwritten documents, preservation, data discovery, etc. During

this time period, Class Counsel’s work with respect to the transaction, financial, and

operational data, described in paragraphs 27-28 above, continued.

32. While all of the above discovery was proceeding, Class Counsel also spent

significant time handling discovery of the class representatives. Defendants served all-

encompassing discovery requests on the class representatives. Responding entailed a

number of steps and a number of lawyers. First, there were site visits to each of the class

representatives’ facilities to assess the nature and volume of documents (paper and

electronic) and custodians. Second, Class Counsel retained an e-discovery vendor and

accompanied that vendor on site visits to collect and preserve electronic documents, as

well as to collect and process paper documents. Third, Class Counsel negotiated the


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scope of discovery with various defense lawyers and oversaw the production of

documents in conformance with the agreements reached. Fourth, Class Counsel

reviewed all the documents collected from the class representatives.

33. Throughout class certification discovery, Class Counsel made every effort

to meet and confer productively to resolve as many disputes as possible without the need

for Court involvement. Nonetheless, many disputes arose, requiring Class Counsel to

research the issues and prepare for and conduct negotiations.

34. Both sides completed their production of class certification documents and

data in early 2012. In total, over 3.5 million pages of discovery were reviewed by Class

Counsel.

35. On May 24, 2012, Plaintiffs moved for class certification. See Dkt. No.

305. Plaintiffs’ opening class certification filings were substantial, see Dkt. Nos. 307-

313, reflecting the volume of work involved in obtaining discovery, reviewing millions of

pages of documents, retaining and supervising experts, drafting the briefs, and organizing

thousands of pages of exhibits.

36. Defendants requested and received more than nine months to file their

opposition. Most of Class Counsel’s work during this period focused on (i) preparing for

and defending expert and class representative depositions; and (ii) continuing Class

Counsel’s review of Defendants’ documents in anticipation of particular class

certification and Daubert arguments. In addition, Class Counsel continued to work with

Plaintiffs’ econometric expert, Dr. McClave, including preparing for a hearing in July

2012 during which Dr. McClave explained his model to the Court.


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37. On February 28, 2013, Defendants opposed class certification and filed

Daubert motions directed at two of Plaintiffs’ experts, Dr. McClave and Dr. Solow. As

expected, Defendants’ submissions were voluminous, including hundreds of pages of

briefing, thousands of pages of exhibits, and reports or declarations from four different

experts and industry witnesses.

38. Class Counsel performed additional document review and analysis in

response to Defendants’ arguments; vetted Defendants’ experts and their prior opinions,

including intensive study of their testimony before the United States International Trade

Commission; deposed Defendants’ experts and industry witnesses; supervised rebuttal

work from Plaintiffs’ experts; and prepared Plaintiffs’ reply and opposition briefs on

class certification and Daubert issues, respectively.

39. On October 15, 2013, Plaintiffs submitted their class certification reply

and oppositions to Defendants’ two Daubert motions, including three expert rebuttal

reports and thousands of pages of exhibits. See Dkt. Nos. 389-416.

40. Defendants filed their Daubert replies (and a new expert report) on

January 6, 2014, after which the Court scheduled a three-day class certification and

Daubert hearing for March 5-6 and April 11, 2014.

41. Class Counsel devoted considerable resources to preparing witnesses,

demonstratives, and attorney presentations for the hearing, as well as drafting Plaintiffs’

proposed post-hearing findings of fact and conclusions of law.

42. During the run-up to the class certification hearing, Class Counsel

negotiated “icebreaker” settlements with Defendants Commercial Metals ($3.99 million),

Gerdau ($6.1 million) and AK Steel ($5.8 million). After the class certification hearing,


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Class Counsel negotiated significantly larger settlements with Defendants ArcelorMittal

($90 million) and U.S. Steel ($58 million).

43. Each of these settlement agreements required exhaustive negotiation and

drafting of monetary and other terms. Other settlement-related work included managing

all issues relating to class notice and administration, including retention of vendors (e.g.,

claims administrators and escrow agents), drafting of notices, launching and updating the

settlement website, negotiating escrow agreements, researching class member contact

information, and handling communications with class members to answer questions

about the case.

44. From the beginning of the case through July 31, 2014, Class Counsel

devoted a total of 53,343.95 hours, accounting for $27,690,030.10 in time at current

hourly rates (“lodestar”) to prosecuting the claims on behalf of the Class. Using

historical hourly rates, this translates to $23,629,295.95 in lodestar.3

45. The breakdown of Class Counsel’s time by date and stage of the

proceeding is as follows:

2008 through June 2009. Class Counsel devoted 9,488.48 hours and $5,360,699.00 in time (at current hourly rates) from the beginning of their investigation of the case through June 2009, when the Court denied the motions to dismiss. Critical tasks in this phase included, inter alia, pre-complaint investigation, preparing the complaint, coordinating related cases, litigating initial case management issues, and opposing the motions to dismiss.

3 These totals exclude time spent on the instant fee petition and supporting papers. 4 See, e.g., In re Plasma Derivative Protein Therapies Antitrust Litig., MDL No.

2109, Dkt. No. 697-1, at 9 (N.D. Ill. 2014) (lodestar of $39 million at class certification stage); In re Southeastern Milk Antitrust Litig., 2013 WL 2155387, at *5, 7 (E.D. Tenn. May 17, 2013) (lodestar over $53 million after five years of litigation); In re Brand Name Prescription Drugs Antitrust Litig., 2000 WL 204112, at *3 (N.D. Ill. Feb. 10, 2000) (lodestar of $84 million after approximately six years of litigation).


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July 2009 through May 2012. Class Counsel devoted 28,750.97 hours

and $14,682,611.35 in time during this phase of the case, which commences after the Court denied the motions to dismiss and ends when Plaintiffs filed their Motion for Class Certification. The vast bulk of the work during this period involved reviewing and synthesizing millions of pages of documents and data, coordinating expert work, drafting, serving and responding to discovery, litigating case management and discovery disputes, continuing to conduct independent research into the facts, and preparing Plaintiffs’ opening class certification submissions.

June 2012 through October 2013. Class Counsel devoted 9,633.35 hours

and $4,948,872.75 in time during this phase of the case, which commences after filing of the Motion for Class Certification and ends after the close of briefing on that motion. Most of the time during this period was devoted to preparing the experts and class representatives for depositions, defending those depositions, document analysis and expert work on class certification and Daubert issues, preparing for and taking the depositions of Defendants’ experts, and drafting the class certification reply and oppositions to the Daubert motions.

November 2013 through July 2014. Class Counsel devoted 5,471.15

hours and $2,697,847.00 in time during this phase of the case, which work included preparing for and conducting the class certification hearing and drafting Plaintiffs’ post-hearing submissions, and settlement-related work, including negotiation, drafting, approval briefing, class notice and administration, and court hearings.

46. Another way of looking at Class Counsel’s time is by substantive category

of work. Each month, all firms in the case are required to submit detailed time and

expense reports, and they are required to place each expenditure of time into one of ten

substantive categories of work. From 2008 through July 2014, the breakdown of time by

category of work was as follows:

Category No. of Hours Lodestar

Factual Research and Investigation 4,372.65 $2,223,533.75

Document Review 15,234.80 $7,339,819.10

Depositions (including preparation) 2,673.85 $1,321,097.75


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Other Discovery 8,427.10 $4,250,258.75

Meetings/Negotiations with Defense Counsel (including preparation)

777.65 $486,992.00

Pleadings, Briefs and Legal Research 9,276.78 5,063,099.00

Litigation Strategy and Case Management

5,418.50 $3,157,311.00

Court Appearances and Preparation 2,561.50 $1,401,122.25

Experts 3,398.32 $1,722,921.00

Settlement 1,202.80 $723,875.50

Total 53,343.95 $27,690,030.01

47. At all times throughout the case, Class Counsel have worked efficiently

and made every effort to avoid wasting time or duplicating effort. In Co-Lead Counsel’s

experience, the total lodestar reported above is reasonable for a case of this nature

(involving large claims against eight sophisticated Defendants and years of discovery),

and indeed is lower than in many comparable cases.4

48. To validate the total lodestar and expenses submitted herein, Co-Lead

Counsel and each co-counsel law firm representing Plaintiffs has prepared a signed

declaration summarizing that firm’s time, costs and expenses, and attesting that all hourly

rates used in this matter are the same as those billed to paying clients in non-contingent

4 See, e.g., In re Plasma Derivative Protein Therapies Antitrust Litig., MDL No.

2109, Dkt. No. 697-1, at 9 (N.D. Ill. 2014) (lodestar of $39 million at class certification stage); In re Southeastern Milk Antitrust Litig., 2013 WL 2155387, at *5, 7 (E.D. Tenn. May 17, 2013) (lodestar over $53 million after five years of litigation); In re Brand Name Prescription Drugs Antitrust Litig., 2000 WL 204112, at *3 (N.D. Ill. Feb. 10, 2000) (lodestar of $84 million after approximately six years of litigation).


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matters. With the Court’s permission, these declarations will be submitted to the Court

for in camera review. See Plaintiffs’ Motion for in camera review, filed

contemporaneously.5

49. Class Counsel also request reimbursement for the costs that they have

advanced in litigating this case on behalf of the class.

50. Class Counsel previously moved for reimbursement of the vast majority of

their costs and expenses in connection with final approval of the CMC, Gerdau, and AK

Steel settlements in July 2014. See Dkt. No. 494-1 at 15 (requesting reimbursement of

$5,064,908.97). At the July final approval hearing, the Court indicated its intention to

approve the CMC, Gerdau and AK Steel settlements and to review the expenses prior to

final approval. See 7/10/14 Hearing Tr. at 13-14 (Class Counsel submitting requested

backup for all costs and expenses).6

51. Class Counsel now seek reimbursement for the remaining $406,850.08 in

“out of pocket” costs incurred through July 31, 2014. For the most part, these are costs

that were advanced by individual firms for travel, computerized legal research, copying

and the like, backup for which can be found in the individual Class Counsel declarations

being submitted to the Court for in camera review, filed contemporaneously. These costs

5 Class Counsel have not submitted this information publicly because it would

reveal sensitive information on staffing, case strategy and litigation tactics to the Defendants were it disclosed. If the Court wishes to review even more granular backup (e.g., daily time entries for all Class Counsel), Plaintiffs are prepared to submit this information for in camera review at or after the October 17, 2014, final approval hearing.

6 After the final approval hearing, CMC, Gerdau and AK Steel advised Plaintiffs

of an issue relating to CAFA notice requirements, and obtained Plaintiffs’ consent to delay entry of the Court’s final approval order (and any order awarding reimbursement of litigation expenses) until October 17, 2014. See 7/16/2014 Letter to Court from Defendants CMC, Gerdau and AK Steel.


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were not submitted for reimbursement in connection with the CMC, Gerdau and AK

Steel settlements.

52. Summing all of the Class Counsel declarations, the breakdown of the total

costs, by category, is as follows:

CO-COUNSEL OUT OF POCKET EXPENSES

Commercial Copies $33,785.82

Internal Reproduction/ Copies $77,874.79

Court Fees (Filing, etc.) $6,180.05

Court Reporters/Transcripts $992.50

Computer Research $71,746.82

Telephone/Fax/E-mail $4,760.53

Postage/Express/Delivery/Messenger $20,623.04

Professional Fees (expert, investigator, accountant, etc.) $2,562.21

Witness/Service Fees $1,965.00

Travel: Air Transportation, Ground Travel, Meals, Lodging, etc.

$183,476.12

Miscellaneous $2,883.20

TOTAL $406,850.08

53. Class Counsel thus seek a total of $406,850.08 in cost reimbursement in

this petition. Together with Class Counsel’s prior request for expense reimbursement in

connection with the earlier settlements, Class Counsel seek total reimbursement of

$5,471,759.05 from the $163.9 million common settlement fund.


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MARKET RATE FOR CLASS COUNSEL’S SERVICES

54. Co-Lead Counsel are experienced high-stakes litigators and often

represent sophisticated individual clients and class action plaintiffs in antitrust and other

complex litigation in exchange for a one-third contingent fee from any recovery.

55. In a case like this one—involving large antitrust claims against

sophisticated defendants with vast resources and capable counsel—a one-third contingent

fee is consistent with Class Counsel’s standard market rate.

56. For example, Michael Guzman states that Kellogg Huber has been

retained by many private and governmental clients to prosecute antitrust and other

complex contingent claims on a non-class basis, and the firm’s typical market rate ranges

from 25-50% of any recovery. Examples include the following:

Confidential antitrust matter involving e-book price fixing (S.D.N.Y., 2014) (contingent fee of 33% in a non-class case; matter is ongoing);

Confidential accounting fraud matter (arbitration, 2010) (contingent fee of 33.33% with client also paying expenses);

Columbia Hospital for Women Medical Center, Inc. v. NCRIC, Inc., Adv.

Pro. No. 09-10010 (Bankr. D.D.C. 2009) (contingent fee of 50% with client also paying expenses);

In re Copper Antitrust Litigation, M.D.L. Docket No. 1303 (W.D. Wis.

2007) (contingent fee of 33.33% with client also paying expenses);

Volumetrics Medical Imaging, LLC v. General Electric Healthcare Ltd., et. al., No. 1:05-cv-00955-NCT-RAE (M.D. N.C. 2005) (contingent fee of 50% with client also paying expenses)

HCP Life Science Assets TRS, LLC, et. al. v. Camanne Management, Inc. , et al., 2008 CA 004024B (D.C. Super. Ct.) & Nos. 1O-CV-674, 10-CV-770 & 10-CV- 821 (D.C.C.A.) (contingent fee of 33.33% with client paying expenses).


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57. Michael Guzman further states that Kellogg Huber's standard market rate

is similar in contingent class action litigation. Examples include:

In re Urethanes Antitrust Litig., MDL No. 1616, Dkt. No. 2210 (D. Kan. Dec. 13, 2011) (one-third fee from initial settlements with litigation continuing) (Kellogg Huber co-lead trial counsel in non-settling portion of case)

Massachusetts Smokeless Tobacco Litigation, Civil Case No. 03-5038 (Mass. 2010) (one-third fee awarded from common fund settlement) (Kellogg Huber co-lead counsel for class)

Smokeless Tobacco Cases I-IV, J.C.C.P. Nos. 4250, 4258, 4259 & 4262 (Cal. Sup. Ct, 2009) (one-third fee awarded from common fund settlement) (Kellogg Huber member of Plaintiffs’ Executive Committee)

Feuerabend, et al. v. UST Inc., et al., Case No. 02-CV-7124 (Wis. 2007)

(one-third fee awarded from common fund settlement) (Kellogg Huber co-lead counsel for class)

Chance v. United States Tobacco Co., No. No. 05-cv-112 (Kan. 2007)

(one-third fee awarded from common fund settlement) (Kellogg, Huber, Hansen co-lead counsel for class)

Microsoft Antitrust Litigation (Cal. 2006) (one-third fee awarded from

common fund settlement) (Kellogg Huber member of Plaintiffs’ Executive Committee)

58. Jeffrey Istvan states that Fine Kaplan’s primary practice is representing

class action plaintiffs, and the firm is commonly awarded one-third of any common fund

recovery for its work. Recent examples of awarded fees include:

In re Urethanes Antitrust Litig., MDL No. 1616, Dkt. No. 2210 (D. Kan. Dec. 13, 2011) (one-third fee from initial settlements with litigation continuing) (Fine Kaplan serves as co-lead counsel for the class)

In re Plasma-Derivative Protein Therapies Antitrust Litig., 09-cv-7666, Dkt. Nos. 693 and 701 (N.D. Ill. 2014) (class counsel including Fine Kaplan awarded one-third fee)

In re Southeastern Milk Antitrust Litig., 2013 WL 2155387 (E.D. Tenn.

May 17, 2013) (class counsel including Fine Kaplan awarded one-third fee)


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In re Metoprolol Succinate End-Payor Antitrust Litig., No. 06-cv-71, Dkt.

No. 342 (D. Del. March 7, 2013) (class counsel awarded 32% fee) (Fine Kaplan served as co-lead counsel)

In re Aftermarket Filters Antitrust Litig., No. 08-cv-4883, Dkt. No. 1063

(N.D. Ill. Feb. 22, 2013) (class counsel awarded 30% fee) (Fine Kaplan served as co-lead counsel)

In re Terrapin Express, Inc. v. Airborne Express, Inc., No. 11–199–

01536–05 (AAA 2007) (class counsel awarded 30% fee) (Fine Kaplan served as co-lead counsel)

In re OSB Antitrust Litig., No. 06-cv-826, Dkt. No. 987 (E.D. Pa. Feb. 9,

2009) (class counsel awarded one-third fee) (Fine Kaplan served on plaintiffs’ Executive Committee)

In re Automotive Refinishing Paint Antitrust Litig., 2008 WL 63269 (E.D.

Pa. Jan. 3, 2008) (class counsel awarded approximately one-third fee) (Fine Kaplan on plaintiffs’ Executive Committee)

In re Linerboard Antitrust Litig., 2004 WL 1221350 (E.D. Pa. June 2,

2004) (class counsel awarded 30% fee) (Fine Kaplan on plaintiffs’ Executive Committee)

59. Jeffrey Istvan further states that Fine Kaplan is compensated at similar

market rates when representing individual clients. For example, the most recent antitrust

case in which Fine Kaplan represented individual plaintiffs against large, sophisticated

defendants involved conspiracy allegations and hundreds of millions of dollars in

estimated damages. Fine Kaplan represented the clients on a fully contingent basis for a

30% fee ,plus payment of all litigation expenses.7

7 Fine Kaplan’s slight downward departure from a standard one-third fee in that

case was justified by somewhat lower ex ante risks, given that (i) certain conspiracy facts had been established in a prior government investigation, and (ii) disputed and time-consuming class certification issues were not in play because it was not a class case.


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60. Here, where the claims involve a complex antitrust class action with no

parallel government investigation or proceeding, Fine Kaplan’s typical ex ante market

rate is one-third of any class recovery.

61. Co-Lead Counsel also expect clients to reimburse them for litigation costs

as part of their standard terms and conditions with both individual and class action

clients. All categories of costs and expenses requested here—expert and e-discovery

costs, courtroom technology, inside and outside copying costs, depositions and

transcripts, legal research costs, other vendor and consulting services, travel, etc.—are

billed to and reimbursed directly by individual clients in nearly every case, and are thus

well-accepted by the marketplace. Furthermore, in Class Counsel’s experience, these

costs are nearly always reimbursed in full by the Court in the context of common

settlement funds.


EXHIBIT 2

Case: 1:08-cv-05214 Document #: 519-3 Filed: 10/01/14 Page 1 of 36 PageID #:19579

Case: 1:09-cv-07666 Document #: 693 Filed: 01/22/14 Page 1 of 3 PageID #:8998Case: 1:08-cv-05214 Document #: 519-3 Filed: 10/01/14 Page 2 of 36 PageID #:19580

1857768.1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION IN RE: PLASMA-DERIVATIVE PROTEIN THERAPIES ANTITRUST LITIGATION ______________________________________ This Document Relates To All Actions

Case No. 09 C 7666 MDL No. 2109 Judge Joan B. Gottschall Magistrate Judge Arlander Keys

PLAINTIFFS’ MOTION FOR A FINAL AWARD OF ATTORNEYS’ FEES,

REIMBURSEMENT OF EXPENSES, AND APPROVAL OF INCENTIVE AWARDS FOR THE CLASS REPRESENTATIVES

Plaintiffs respectfully move this Court for entry of an Order approving the requested

award of attorney’s fees in the amount of one-third the Settlement Fund ($21.33 million),

reimbursement of litigation expenses ($280,971.12), and the approval of incentive awards of

$50,0000 for each of the three Class Representatives from the settlement with Defendants Baxter

International, Inc. and Baxter Healthcare Corporation (collectively “Baxter”). In support of this

motion, Plaintiffs provide the attached Memorandum of Law, the Joint Declaration of Richard A.

Koffman and Charles E. Tompkins, and the accompanying exhibits.

Dated: March 10, 2014 Respectfully submitted,

s/Charles E. Tompkins WILLIAMS MONTGOMERY & JOHN LTD. Charles E. Tompkins Anthony J. O’Neill Bethany C. Teska 233 S. Wacker Dr., Suite 6100 Chicago, IL 60606 Plaintiffs’ Steering Committee s/Richard A. Koffman COHEN MILSTEIN SELLERS & TOLL Richard A. Koffman Benjamin D. Brown Christopher J. Cormier


1857768.1

Emmy L. Levens 1100 New York Ave, NW, Suite 500 West Washington, D.C. 20005 Plaintiffs’ Steering Committee s/Deborah H. Bornstein FREEBORN & PETERS LLP Deborah H. Bornstein David C. Gustman 311 S. Wacker Dr., Suite 3000 Chicago, IL 60606 Plaintiffs’ Liaison Counsel


1857768.1

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served upon All Counsel of Record by e-mail on this 10th day of March, 2014. s/Emmy L. Levens


1858796.1


EASTERN DIVISION

IN RE: PLASMA-DERIVATIVE PROTEIN THERAPIES ANTITRUST LITIGATION ______________________________________ This Document Relates To All Actions

Case No. 09 C 7666 MDL No. 2109 Judge Joan B. Gottschall Magistrate Judge Arlander Keys

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A FINAL

AWARD OF ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES, AND APPROVAL OF INCENTIVE AWARDS FOR CLASS REPRESENTATIVES

COHEN MILSTEIN SELLERS & TOLL PLLC Richard A. Koffman Benjamin D. Brown Christopher J. Cormier Emmy L. Levens 1100 New York Avenue, NW Suite 500 West Washington, DC 20005 Plaintiffs’ Steering Committee

WILLIAMS MONTGOMERY & JOHN LTD. Charles E. Tompkins Anthony J. O'Neill Bethany C. Teska 233 S. Wacker Drive Suite 6100 Chicago, Il 60606 Plaintiffs’ Steering Committee FREEBORN & PETERS LLP David Gustman Deborah H. Bornstein 311 S. Wacker Drive Suite 3000 Chicago, IL 60606 Plaintiffs’ Liaison Counsel

Case: 1:09-cv-07666 Document #: 697-1 Filed: 03/10/14 Page 1 of 28 PageID #:9183Case: 1:08-cv-05214 Document #: 519-3 Filed: 10/01/14 Page 8 of 36 PageID #:19586

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TABLE OF CONTENTS

Page

I. THE REQUESTED ATTORNEYS’ FEES ARE FAIR AND REASONABLE. ............... 4

A. The Requested Fees are Fair and Reasonable as a Percentage of the Fund. ........... 5 B. The Lodestar/Multiplier Method Confirms the Requested Attorneys’ Fees

are Fair and Reasonable .......................................................................................... 7 C. The Quality of Legal Services Rendered Supports the Fee Request .................... 13 D. To Date, No Class Member Has Objected to the Fee and Expense Request ........ 14

II. THE REQUEST FOR REIMBURSEMENT OF COSTS AND EXPENSES IS FAIR AND REASONABLE. ........................................................................................... 15

III. INCENTIVE AWARDS FOR THE CLASS REPRESENTATIVES ARE WARRANTED AND THE AMOUNT REQUESTED IS REASONABLE. ................... 17

IV. CONCLUSION ................................................................................................................. 20


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TABLE OF AUTHORITIES

Page(s)

CASES

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ...................................................................................................................4

Hawaii v. Standard Oil Co. of California, 405 U.S. 251 (1972) .....................................................4

Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) .......................................................... passim

In re Cont’l Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) ........................................................................................... passim

Florin v. Nationsbank of Ga., N.A. (“Florin I”), 34 F.3d 560 (7th Cir. 1994) ...............................................................................................4, 5, 8

Florin v. Nationsbank of Ga., N.A. (“Florin II”), 60 F.3d 1245 (7th Cir. 1995) .................................................................................................8, 9

Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) .............................................................................................5, 8, 9

Halverson v. Convenient Food Mart, Inc., 458 F.2d 927 (7th Cir. 1972) .....................................................................................................4

Kirchoff v. Flynn, 786 F.2d 320 (7th Cir. 1986) ...................................................................................................13

Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997).....................................................................................................13

Skelton v. Gen. Motors Corp., 860 F.2d 250 (7th Cir. 1988) .....................................................................................................9

Smith v. Vill. of Maywood, 17 F.3d 219 (7th Cir. 1994) .....................................................................................................10

In re Synthroid Mktg. Litig., 264 F.3d 712 (7th Cir. 2001) ........................................................................................... passim


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Taubenfeld v. Aon Corp. 415 F.3d 597 (7th Cir. 2005) .............................................................................................4, 5, 6

United States Football League v. Nat’l Football League, 887 F.2d 408 (2d Cir. 1989).......................................................................................................9

Aspacher v. Rosenthal Collins Group, No. 00 C 7520, 2001 U.S. Dist. LEXIS 19464 (N.D. Ill. Nov. 6, 2001) .................................13

Been v. O.K. Indus., Inc., No. CIV-02-285-RAW, 2011 U.S. Dist. LEXIS 115151, at *33-36 (E.D. Okla. Aug. 16, 2011) ...........................................................................................19, 20

In re Buspirone Antitrust Litig., No. 01-CV-7951 (JGK) (S.D.N.Y. April 1, 2003) ....................................................................7

Campbell v. Advantage Sales & Mktg. LLC, No. 09–01430, 2012 WL 1424417 (S.D. Ind. Apr. 24, 2012) ...................................................6

In re Clark Oil & Refining Corp. Antitrust Litig., 422 F.Supp. 503 (E.D. Wis. 1976) .............................................................................................4

Cooper v. IBM Pers. Pension Plan, No. 99 -829-GPM, 2005 U.S. Dist. LEXIS 17071 (S.D. Ill. Aug. 16, 2005) ............................5

In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373-74 (S.D. Ohio 1990) ...............................................................................................................................20

Edmonds v. United States, 658 F. Supp. 1126 (D.S.C. 1987) .......................................................................................13, 14

Goldsmith v. Tech. Solutions Co., No. 92 C 4374, 1995 U.S. Dist. LEXIS 15093 (N.D. Ill. Oct. 10, 1995) ..............................6, 7

Great Neck Capital Appreciation Inv. P’ship, L.P. v. PricewaterhouseCoopers, 212 F.R.D. 400 (E.D. Wis. 2002) ......................................................................................6, 7, 8

Heder v. City of Two Rivers, 255 F. Supp. 2d 947 (E.D. Wis. 2003) .....................................................................................10

Hershey v. ExxonMobil Oil Corp., No. 07-1300-JTM, 2012 U.S. Dist. LEXIS 153803, at *43 (D. Kan. Oct. 26, 2012).....................................................................................................20

In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166 (E.D. Pa. 2000) ...............................................................................................16


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Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) ..........................................20

In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467 (S.D.N.Y. 2009) ........................................................................................7

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 264 F.R.D. 438, 448 (N.D. Ill. 2009) ........................................................................................................................................19

In re Lawnmower Engine Horsepower Marketing & Sales Practices Litig., 733 F. Supp. 2d 997, 1016 (E.D. Wis. 2010) ..........................................................................................18, 19

In re Linerboard Antitrust Litig., No. MDL 1261, 2004 WL 1221350, at *16 (E.D. Pa. June 2, 2004) ........................................9

Long v. Trans World Airlines, Inc., No. 86 C 7521, 1993 U.S. Dist. LEXIS 5063 (N.D. Ill. Apr. 15, 1993) ....................................7

Lucken Family Ltd. P’ship, LLLP, v. Ultra Res., Inc., 09-cv-01543-REB-KMT, 2010 U.S. Dist. LEXIS 144366, at *16-*17 (D. Colo. Dec. 22, 2010) ....................................................19

McKinnie v. JP Morgan Chase Bank, N.A., 678 F.Supp.2d 806 (E.D. Wis. 2009) .........................................................................................6

Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235 (S.D.N.Y. 1993)...........................................................................................16

In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y. 1998) .............................................................................................13

North Shore Hematology-Oncology Associates, P.C. v. Bristol Myers Squibb Co., No. 1:04cv248 (EGS) (D.D.C. Nov. 30, 2004)..........................................................................7

In re Prudential Sec. Ltd. P’ship Litig., 985 F. Supp. 410 (S.D.N.Y. 1997).............................................................................................7

In re Ready–Mixed Concrete Antitrust Litig., No. 05–00979, 2010 WL 3282591 (S.D. Ind. Aug. 17, 2010) ..................................................6

In re Relafen Antitrust Litig., No. 01-12239-WGY (D. Mass. April 9, 2004) ..........................................................................7

In re Remeron Direct Purchaser Antitrust Litig., 2005 WL 3008808, at *12 - *14 (D. N.J. Nov. 9, 2005) .....................................................7, 15


iv

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Retsky Family Ltd. P’ship v. Price Waterhouse LLP, No. 97 C 7694, 2001 U.S. Dist. LEXIS 20397 (N.D. Ill. Dec. 6, 2001) ...............................6, 7

Ryskamp v. Looney, No. 10-cv-00842-WJM-KLM, 2012 U.S. Dist. LEXIS 114190, at *18-19 (D. Colo. Aug. 14, 2012) .............................................................................................20

Schulte v. Fifth Third Bank, 805 F.Supp. 2d 560, 600-601 (N.D. Ill. 2011) .................................17

Spicer v. Chicago Bd. Options Exch., Inc., 844 F. Supp. 1226 (N.D. Ill. 1993) ....................................................................................16, 17

In re Terazosin Hydrocholride Antitrust Litig., No. 99-MDL-1317 (S.D.Fla. Apr. 19, 2005) .............................................................................7

In re Trans Union Corp. Privacy Litig., No. 00 C 4729, 2009 U.S. Dist. LEXIS 116934 (N.D. Ill. October 1, 2009), modified and remanded by, 629 F.3d 741 (7th Cir. 2011) .....................................................5, 7

In re Vitamin C Antitrust Litig., No. 06-MD-1738 (BMC) (JO), 2012 U.S. Dist. LEXIS 152275, at *35-36 (E.D.N.Y. Oct. 22, 2012) ...........................................................................20

OTHER AUTHORITIES

Rule 23(h) of the Federal Rules of Civil Procedure ........................................................................1

William B. Rubenstein, Newberg on Class Actions § 14:6 (4th ed.) ..............................................7


1

1858796.1

This case involves allegations that the two largest manufacturers of life-sustaining

biologic therapies conspired to restrict the supply and increase the prices of those therapies in

violation of the antitrust laws. Following a lengthy pre-filing investigation, Class Counsel and

their legal team have engaged in nearly five years of intensive litigation, during which they have:

successfully filed a detailed Consolidated Amended Complaint; defeated two motions to dismiss;

engaged in extensive discovery-related motion practice; reviewed more than 11 million pages of

documents; taken and defended more than sixty depositions on three separate continents;

retained and consulted two preeminent economists (and defended their depositions); submitted

several hundred pages of briefing and other materials in support of Plaintiff’s motion for class

certification; and engaged in protracted, arm’s length settlement negotiations with all three

Defendants. All of these efforts have now come to fruition, as Class Counsel have reached a

Settlement with the final remaining defendant, Baxter, for $64 million. This brings the total relief

to the Class to $128 million. As explained more fully in the simultaneously filed Motion for

Final Approval of the Baxter Settlement, this is a truly excellent result for the Class.

Class Counsel – Richard A. Koffman and Charles E. Tompkins, and their respective law

firms1 – hereby submit this memorandum in support of their Motion for a Final Award of

Attorneys’ Fees and Reimbursement of Litigation Expenses pursuant to Rule 23(h) of the

Federal Rules of Civil Procedure. As compensation for their considerable work on behalf of the

1 Class Counsel have been ably assisted throughout by a team of experienced attorneys from many of the nation’s top plaintiffs’ firms, including Liaison Counsel from Freeborn & Peters LLP.


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1858796.1

Class, Class Counsel seek an award of one-third of the Settlement fund, $21,333,333.33.2

Counsel respectfully submit that this fee is eminently fair and reasonable given that Plaintiffs’

counsel have invested over 94,000 professional hours, valued at more than $37.75 million, and

invested $5 million in out-of-pocket expenses, all without any guarantee of payment or

reimbursement. This extraordinary investment apparently mirrors Defendants’: Baxter stated in

open Court that it had engaged one hundred contract attorneys to work on this matter3 and CSL

publicly acknowledged that it had spent more than $20 million in legal fees related to this suit,

and expected to spend $20 million more if the case were litigated to conclusion. Applying

simple mathematics and logic to these facts, the three Defendants’ total legal fees to date are

likely in excess of $50 million.

Counsel also asks that the Court approve an incentive award of $50,000 for each of the

Class Representatives in this matter. The Class Representatives have collectively spent

thousands of hours prosecuting this matter on behalf of the Class, and their efforts have been

critical to the successful result achieved for the Class. The Class Representatives devoted

significant resources to the case despite the fact that each of the Class Representatives’

2 Attached as Exhibit 1 is the Joint Declaration of Richard A. Koffman and Charles E. Tompkins in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and Plan of Allocation and Class Counsel’s Motion for an Award of Attorneys’ Fees, Reimbursement of Litigation Expenses, and Approval of Incentive Awards for Class Representatives (the “Joint Declaration” or “Joint Decl.”), which contains a description of the history of the litigation, the claims asserted, the investigation and discovery undertaken, the negotiation and substance of the Settlement, and the substantial risks and uncertainties presented by and overcome in this litigation.

Class Counsel will submit shortly the detailed declarations and time entries for each Firm requesting attorneys’ fees in this case for the Court’s review in camera.

3 Tr. of Hearing held on Feb. 15, 2012 at 6, ECF No. 456.


3

1858796.1

respective recoveries from the Settlement is comparatively small. The Class Representatives

took seriously their responsibilities as “private attorneys general” enforcing the antitrust laws,

and each took significant risks and made enormous sacrifices to that end. As the requested

incentive awards collectively amount to only .1% of the total recovery to the Class and

individually are de minimus in relation to the recovery obtained by other members of the Class,

the requested payments are both justified and reasonable.

To date, no Class Member has objected to either the proposed Settlement, to Class

Counsel’s request for fees and expenses, or to the award of $50,000 to each of the Class

Representatives.4 Additionally, not a single class member opted out of the settlement before the

March 3, 2014 opt-out deadline. Given the sophisticated nature of most members of the

Settlement Class, which include hospitals and national drug distributors with legal counsel of

their own, the fact that none of them has opted out speaks volumes about the quality of the

settlement and underscores the excellent result achieved by Class Counsel and the Class

Representatives.

Both Class Counsel and the Class Representatives devoted tremendous time and effort to

the prosecution of the Class’s claims, and their efforts paid off. The requested attorneys’ fees

and incentive awards are both conservative and amply justified in light of the investment, risks,

and excellent results obtained for the Class.

4 The deadline for objections is March 31, 2014. If any objections are received, they will be addressed in Class Counsel’s reply submission, which will be filed on April 14, 2014.


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ARGUMENT

I. THE REQUESTED ATTORNEYS’ FEES ARE FAIR AND REASONABLE.

It is well-settled that attorneys who, by their efforts, create a common fund for the benefit

of a class are entitled to reasonable compensation for their services. Boeing Co. v. Van Gemert,

444 U.S. 472, 478 (1980) (“a litigant or a lawyer who recovers a common fund for the benefit of

persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as

a whole”); Florin v. Nationsbank of Ga., N.A. (“Florin I”), 34 F.3d 560, 563 (7th Cir. 1994)

(“When a case results in the creation of a common fund for the benefit of the plaintiff class, the

common fund doctrine allows plaintiffs’ attorneys to petition the court to recover its fees out of

the fund.”). Courts have recognized that, in addition to providing just compensation, substantial

counsel fees encourage forceful prosecution of cases. See Halverson v. Convenient Food Mart,

Inc., 458 F.2d 927, 931 n.5 (7th Cir. 1972). Moreover, providing reasonable attorneys’ fees in

successful private antitrust actions promotes “[p]rivate antitrust litigation [which] is widely

recognized as an effective supplement to government enforcement of the antitrust laws and

contributes to the maintenance of a competitive economy.” In re Clark Oil & Refining Corp.

Antitrust Litig., 422 F. Supp. 503, 510 (E.D. Wis. 1976), citing Hawaii v. Standard Oil Co. of

Cal., 405 U.S. 251, 262 (1972).

In making the determination regarding the appropriate amount of attorneys’ fees to be

awarded to counsel who have successfully prosecuted litigation on behalf of a class, the Seventh

Circuit has instructed: “[W]hen deciding on appropriate fee levels in common-fund cases, courts

must do their best to award counsel the market price for legal services, in light of the risk of

nonpayment and the normal rate of compensation in the market at the time.” Taubenfeld v. Aon


5

1858796.1

Corp., 415 F.3d 597, 599 (7th Cir. 2005); see also In re Synthroid Mktg. Litig., 264 F.3d 712,

718 (7th Cir. 2001) (same). In affirming an award of fees equal to nearly one-third of the

settlement fund plus expenses, the Seventh Circuit considered, among others, the following

factors: (1) “awards made by courts in other class actions” which “amount[ed] to 30-39% of the

settlement fund”; (2) “the quality of legal services rendered”; and (3) “the contingent nature of

the case.” Taubenfeld, 415 F.3d at 600. An examination of these three factors demonstrates that

an award of attorneys’ fees equal to one-third the settlement amount is both fair and reasonable.

A. The Requested Fees are Fair and Reasonable as a Percentage of the Fund.

The Seventh Circuit has strongly endorsed the percentage of the fund method, pursuant to

which fees are awarded as a percentage of the total recovery, because it most closely

approximates the manner in which attorneys are compensated in the marketplace for contingent

fee work. See Gaskill v. Gordon, 160 F.3d 361, 362 (7th Cir. 1998) (“When a class suit produces

a fund for the class, it is commonplace to award the lawyers for the class a percentage of the fund

. . . in recognition of the fact that most suits for damages in this country are handled on the

plaintiff’s side on a contingent-fee basis”).5 The Seventh Circuit has also recognized “that there

are advantages to utilizing the percentage method in common fund cases because of its relative

simplicity of administration.” Florin I, 34 F.3d at 566; In re Trans Union Corp. Privacy Litig.,

No. 00 C 4729, 2009 U.S. Dist. LEXIS 116934, at *13 (N.D. Ill. Oct. 1, 2009), modified and

5 Cooper v. IBM Pers. Pension Plan, No. 99 -829-GPM, 2005 U.S. Dist. LEXIS 17071, at *13 (S.D. Ill. Aug. 16, 2005) (“‘[T]he approach favored in the Seventh Circuit is to compute attorney’s fees as a percentage of the benefit conferred on the class,’ particularly where that percentage of the benefit approach replicates the market”).


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remanded by, 629 F.3d 741 (7th Cir. 2011) (same); see also In re Cont’l Ill. Sec. Litig., 962 F.2d

566, 573 (7th Cir. 1992) (noting it is easier to award a percentage “than it would be to hassle

over every item or category of hours and expense and what multiple to fix and so forth”).6

The fee award requested here, amounting to one-third of the recovery, is reasonable and

well justified in light of the significant risks faced in the litigation, the obstacles overcome, and

the quality of Class Counsel’s work. Moreover, the requested fee is also plainly consistent with

fee awards made by courts in other, similar cases. In complex class action cases like this one,

percentages in the range of 33% to 40% of the recovery have been held appropriate within the

Seventh Circuit. See Retsky Family Ltd. P’ship v. Price Waterhouse LLP, No. 97 C 7694, 2001

U.S. Dist. LEXIS 20397, at *10 (N.D. Ill. Dec. 6, 2001) (“A customary contingency fee would

range from 33 1/3% to 40% of the amount recovered.”); Goldsmith v. Tech. Solutions Co., No.

92 C 4374, 1995 U.S. Dist. LEXIS 15093, at *27 (N.D. Ill. Oct. 10, 1995) (“Thus, where the

percentage method is utilized, courts in this District commonly award attorneys’ fees equal to

approximately one-third or more of the recovery.”).7 Moreover, an award of one-third the

6 Although the Seventh Circuit has strongly endorsed the percentage method, district courts retain discretion to choose either the percentage or lodestar method of calculating fees. In re Trans Union, 2009 U.S. Dist. LEXIS 116934, at *13.

7 See also, e.g., Campbell v. Advantage Sales & Mktg. LLC, No. 09–01430-LJM-MJD, 2012 WL 1424417, at *2 (S.D. Ind. Apr. 24, 2012) (awarding one-third of recovery as attorneys’ fees); In re Ready–Mixed Concrete Antitrust Litig., No. 1:05-cv-00979-SEB-TAB, 2010 WL 3282591, at *3 (S.D. Ind. Aug. 17, 2010) (awarding 33.3% of the common fund as fees in direct-purchaser antitrust action ); Taubenfeld, 415 F.3d at 598 (affirming award of 30%); McKinnie v. JP Morgan Chase Bank, N.A., 678 F. Supp. 2d 806, 816 (E.D. Wis. 2009) (awarding 30% of common fund); Great Neck Capital Appreciation Inv. P’ship, L.P. v. PricewaterhouseCoopers, L.L.P., 212 F.R.D. 400, 417 (E.D. Wis. 2002) (approving 30% fee award); Retsky, 2001 U.S. Dist. LEXIS 20397, at *10 - *11 (awarding 33 1/3% of fund); Goldsmith, 1995 U.S. Dist. LEXIS


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1858796.1

Settlement is consistent with other complex antitrust actions involving the pharmaceutical

industry. See, e.g., In re Remeron Direct Purchaser Antitrust Litig., No. Civ. 03-0085 FSH,

2005 WL 3008808, at *12 - *14 (D. N.J. Nov. 9, 2005) (33.3% in direct-purchaser antitrust suit

in pharmaceutical industry).8 Finally, “Empirical studies show that, regardless whether the

percentage method or the lodestar method is used, fee awards in class actions average around

one-third of the recovery.” William B. Rubenstein, Newberg on Class Actions § 14:6 (4th ed.).

Accordingly, Class Counsel request that the court adopt the percentage of the fund approach – as

it did with respect to the prior Settlement with CSL and PPTA – and award one-third of the

Settlement fund as attorneys’ fees.

B. The Lodestar/Multiplier Method Confirms the Requested Attorneys’ Fees are Fair and Reasonable

Using the lodestar/multiplier method as a cross-check confirms the appropriateness of the

requested fees. See, e.g., In re Trans Union, 2009 U.S. Dist. LEXIS 116934, at *6. The

lodestar/multiplier method entails multiplying the number of hours each attorney or other

15093, at *27 - *28 (awarding fee of 33 1/3%); Long v. Trans World Airlines, Inc., No. 86 C 7521, 1993 U.S. Dist. LEXIS 5063, at *6 (N.D. Ill. Apr. 15, 1993) (32% of settlement or $1.3 million); see also In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467, 516 (S.D.N.Y. 2009) (33.3% of $586 million settlement).

8 See also Order and Final Judgment at §12, In re Relafen Antitrust Litig., 221 F.R.D. 260, No. 01-12239-WGY (D. Mass. Apr. 9, 2004), ECF No. 297 (awarding 33.3% fee of a $175 million settlement); Minute Order and Final Judgment, In re Buspirone Antitrust Litig., 211 F.R.D. 249, No. 01-CV-07951 (JGK) (S.D.N.Y. Apr. 17, 2003) (awarding a 33.3% fee of a $220 million settlement); Final Order and Judgment Approving Settlement Between Class Plaintiff and Defendant Bristol-Myers Squibb Company at §14, North Shore Hematology-Oncology Assoc., P.C. v. Bristol Myers Squibb Co., No. 1:04-cv-248 (EGS) (D.D.C. Nov. 30, 2004), ECF No. 30 (awarding a 33.3% fee of a $50 million settlement); Order and Final Judgment at §24, In re Terazosin Hydrocholride Antitrust Litig., 352 F. Supp. 2d 1279, No. 99-MD-1317 (S.D. Fla. Apr. 19, 2005), ECF No. 1557; (awarding a 33.3% fee of a $72.5 million settlement).


8

1858796.1

professional expended on the case by his or her hourly rate to derive the lodestar figure. See,

e.g., Great Neck, 212 F.R.D. at 411. The court then typically adjusts the lodestar, by applying a

multiplier, to reflect factors such as the contingent nature of the case, the consequent risk of non-

payment (or under-payment), and the quality of work performed.

“[A] risk multiplier is not merely available in a common fund case but mandated, if the

court finds that counsel ‘had no sure source of compensation for the services.’” Florin I, 34 F.3d

at 565 (quoting In re Continental Ill. Sec. Litig., 962 F.2d 566, 569 (7th Cir. 1992)) (“the need

for such an adjustment is particularly acute in class action suits”).9 There are numerous class

actions in which plaintiffs’ counsel expended thousands of hours and advanced significant

litigation expenses and yet received no remuneration whatsoever, despite their hard work and

expertise. At the outset of this litigation, there was no guarantee this would not be one of those

class actions.

As the Seventh Circuit has emphasized, “court[s] must also be careful to sustain the

incentive for attorneys to continue to represent such clients on an ‘inescapably contingent’

basis.” Florin v. Nationsbank of Ga., N.A. (“Florin II”), 60 F.3d 1245, 1247 (7th Cir. 1995)

(quoting In re Continental Ill. Sec. Litig., 962 F.2d at 569). See also Gaskill, 160 F.3d at 363

(recognizing contingent-fee contracts “shift part of the risk of loss from client to lawyer”). This

9 See also In re Prudential Sec. Inc. Ltd. P’ships Litig., 985 F. Supp. 410, 414 (S.D.N.Y. 1997) (“Because counsel who rendered services were not being compensated for their work as it was being performed and because of the significant risk that they might never receive any compensation if the action was unsuccessful, courts have, when warranted, applied a multiplier to the lodestar to arrive at a fair contingent fee.”).


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is particularly true in complex antitrust matters, which are notoriously complex and risky, and

frequently involve unpredictable “battles of experts.” See, e.g., In re Linerboard Antitrust Litig.,

No. MDL 1261, 2004 WL 1221350, at *16 (E.D. Pa. June 2, 2004) (using a multiplier to “reflect

the risks of nonpayment facing counsel, to serve as an incentive for counsel to undertake socially

beneficial litigation, or as a reward to counsel for an extraordinary result” in a complex antitrust

matter); see also Skelton v. Gen. Motors Corp., 860 F.2d 250, 253 (7th Cir. 1988) (“The stronger

the defense, the higher the risk involved in bringing the suit and the greater the multiplier

necessary to compensate plaintiff’s attorney for bringing the action.”).

From the very outset, no matter how strong Class Counsel believed the case to be, there

existed the significant possibility Defendants might prevail on motion, at trial, or on appeal – and

hence Class Counsel would receive no compensation for their work on behalf of the Class.

Plainly, Class Counsel here were not “assured of a paycheck.” See Florin II, 60 F.3d at 1247.

Nonetheless, they collectively risked significant amounts of time and money to achieve a

recovery for the Class.

Here, Plaintiffs’ counsel collectively expended approximately 94,000 hours of

professional time10 prosecuting the Class’s claims. Joint Decl. ¶ 24. Counsel’s total lodestar,

derived by multiplying the number of hours by each firm’s historical hourly rates, amounts to

approximately $39 million. Id. The requested fee of $21,333,333.33 reflects only a .56%

10 Since it is customary to bill paralegals at hourly rates, it is appropriate to include their time in the lodestar. In re Cont’l, 962 F.2d at 569. Courts have recognized the economic value of using paralegals to do work that otherwise would have to be performed by attorneys. See id.; United States Football League v. Nat’l Football League, 887 F.2d 408, 416 (2d Cir. 1989).


10

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multiplier. Id. ¶ 26. However, this Court approved an identical award from the CSL/PPTA

Settlement. See Dkt. No. 693. Taking that award, along with the award requested here, into

consideration, Class Counsel have requested a total fee only slightly larger than their total

lodestar in the case – a multiplier of approximately 1.13. This is particularly conservative given

that Class Counsel’s lodestar was calculated using historical rates and includes only time

invested since this Court’s appointment of Plaintiffs’ Steering Committee. 11 Courts have held

use of current rates is appropriate to compensate counsel for the loss of use of funds. See Smith

v. Vill. of Maywood, 17 F.3d 219, 221 (7th Cir. 1994) (“A court may elect to use . . . current

rates . . . as acceptable compensation for the delay in payment of fees.”); Heder v. City of Two

Rivers, 255 F. Supp. 2d 947, 958 (E.D. Wis. 2003) (“awarding fees at the current rate . . . . is an

accepted method”). Using current rates rather than historical rates, and including time spent on

pre-filing investigations, the total fees sought from both settlements would likely be less than

Class Counsel’s lodestar.

Given the risks Class Counsel embraced in bringing this case, and the overwhelming case

law supporting the use of risk multipliers, the fees requested are plainly conservative and

reasonable. As discussed in greater detail in the Joint Declaration, during the course of this

litigation Class Counsel have, among other things:

• Researched the law pertinent to the claims against Defendants and the potential

11 Class Counsel, in an effort to be conservative in their billing, have included in their fee applications only time spent since this Court’s appointment of Plaintiffs’ Steering Committee, thereby excluding significant time spent on counsel’s pre-filing investigations and briefing of leadership issues. Additionally, Class Counsel have not sought compensation for time spent preparing this and their previous application for attorneys’ fees and reimbursement of expenses.


11

1858796.1

defenses thereto;

• Prepared a detailed and comprehensive amended complaint based on the extensive factual and expert information Class Counsel collected;

• Researched and drafted comprehensive briefs (and assembled supporting materials) in opposition to Defendants’ motion to dismiss;

• Prepared and served numerous discovery requests on Defendants;

• Briefed and argued numerous discovery disputes before Magistrate Judge Keys (and resolved numerous other discovery disputes amicably without involving the Court);

• Prepared and served subpoenas for the production of documents on seventeen third parties;

• Filed FOIA requests with the United Stated Department of Health and Human Services and the Food and Drug Administration Center for Biologics Evaluation and Research for documents relevant to a shortage of Ig or albumin, and reviewed those documents.

• Engaged in protracted negotiation of discovery issues with Defendants and third parties including the negotiation of an ESI protocol and protective order as well as extensive briefing regarding the adequacy of Defendant PPTA’s document production;

• Reviewed and analyzed over 11 million pages of documents produced in this litigation;

• Reviewed tens of thousands of pages of other information concerning the Plasma industry, including: (a) Market Research Bureau Reports; (b) transcripts from the Advisory Committee on Blood Safety and Availability; (c) the Defendants’ press releases; (d) transcripts of CSL’s and Baxter’s quarterly analyst conference calls; (e) news articles regarding consolidation in the plasma industry and alleged shortages of products; and (f) materials from the Federal Trade Commission’s investigation and complaint challenging CSL’s proposed acquisition of Talecris;

• Defended the Class Representatives’ depositions;

• Deposed more than sixty witnesses on three continents;

• Located and interviewed former employees of Defendants and leaders from relevant patient populations;


12

1858796.1

• Retained and consulted two preeminent economists – Dr. Richard Frank and Dr. Raymond Hartman – to analyze the Class’s claims, to examine whether the economics of the industry support the Class’s theory of conspiracy, to estimate damages, and to assess various issues relating to proving damages;

• Prepared and filed the motions, briefs, and Declarations – totaling several hundred pages – in support of Class Certification;

• Conducted arm’s-length settlement negotiations with Defendants’ counsel;

• Prepared and negotiated the Settlement Agreements and relevant exhibits;

• Prepared the motions and briefs in support of Preliminary Approval and Final Approval of the proposed Settlements;

• Coordinated issuance of Notice and various settlement administration-related matters with the Claims Administrator and with the escrow agent that is presently holding the Settlement Fund assets in an interest-bearing account for the benefit of the Class; and

• Communicated with the Class Representatives with updates on litigation status throughout.

See Joint Decl. ¶ 7.

Class Counsel have made every effort to be efficient in litigating this Action. As much as

possible, Class Counsel managed the assignment of work in this case to avoid unnecessarily

duplicative or overlapping work. Where appropriate, work was assigned to junior lawyers,

paralegals, and others with lower hourly rates, and hourly rates for first-level document review

were capped at $400/hr., even for senior attorneys who typically bill at higher hourly rates.

Courts have held the hourly rates to be applied in calculating the lodestar are those

normally charged for similar work by attorneys of comparable skill and experience in the

community where the attorney practices. See In re Synthroid, 264 F.3d at 718 (“when deciding

on appropriate fee levels in common-fund cases, courts must do their best to award counsel the

market price for legal services, in light of the risk of nonpayment and the normal rate of


13

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compensation in the market at the time”).12 “The attorney’s actual billing rate for comparable

work is ‘presumptively appropriate’ to use as the market rate.” Aspacher v. Rosenthal Collins

Grp., No. 00 C 7520, 2001 U.S. Dist. LEXIS 19464, at *5 (N.D. Ill. Nov. 6, 2001) (quoting

People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996)). See also In re

Cont'l, 962 F.2d at 569 (“lawyers . . . are entitled to be compensated at market rates”).

The hourly fee rates claimed by Plaintiffs’ Counsel are the same as the regular rates

historically charged for their services and which have been approved in other complex class

action litigation. Joint Decl. ¶ 26. In short, the hours expended by Plaintiffs’ Counsel, which

produced the Settlement now before the Court, were reasonable in view of the work performed,

the stage of the proceedings reached, and the complexity of the claims and defenses asserted.

C. The Quality of Legal Services Rendered Supports the Fee Request

Class Counsel respectfully submit that they rendered superior representation to the Class

through their efforts and persistence in litigating the Action. The “prosecution and management

of a complex national class action requires unique legal skills and abilities.” Edmonds v. United

States, 658 F. Supp. 1126, 1137 (D.S.C. 1987). Class Counsel practice extensively in the highly

12 See also Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir. 1986) (“[w]hen the ‘prevailing’ method of compensating lawyers for ‘similar services’ is the contingent fee, then the contingent fee is the ‘market rate’”) (internal citations not included); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (“[t]he ‘lodestar’ figure should be ‘in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation’”) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)); In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465, 489 (S.D.N.Y. 1998) (appropriate rate in performing lodestar analysis is “the rate ‘normally charged for similar work by attorneys of like skill in the area,’ taking into account factors such as the experience of the attorney performing the work and the type of work performed”) (quoting City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir. 1977)) .


14

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challenging field of antitrust litigation and have skillfully litigated these types of actions in courts

across the country. See Joint Decl. ¶ 28. This expertise proved essential in litigating the Class’s

claims.

Throughout the course of this case, Class Counsel were confronted with a number of

legal and factual obstacles to establishing, among other things, an illegal conspiracy among

Defendants, class-wide antitrust impact, and damages. Defendants have consistently argued that

Plaintiffs would not be able to prove Defendants agreed to reduce the supply of plasma-

derivative protein therapies, as opposed to merely acting interdependently in an oligopolistic

market. Had the case not settled, Defendants undoubtedly would have contested class-wide

impact and damages, as well.

However, despite the complexity of the issues and the substantial difficulties of

establishing liability and damages, Class Counsel helped the Class achieve an excellent recovery.

Only the skillful and persistent efforts of Class Counsel enabled the Class to secure $64 million

in this final settlement and $128 million in total.

D. To Date, No Class Member Has Objected to the Fee and Expense Request

In accordance with the Court’s Order for Notice and Hearing, dated January 8, 2014,

more than 2000 copies of the Notice of (i) Pendency and Proposed Settlement of Class Action;

(ii) Settlement Fairness Hearing; and (iii) Motion for Attorneys’ Fees, Reimbursement of

Litigation Expenses and Approval of Incentive Awards for the Class Representatives (the

“Notice”), and the Proof of Claim and Release form were distributed to potential Class Members.

See Declaration of Lauren Edwardson of Epiq, the Settlement Administrator in the Action,

Regarding Mailing of the Notice and Proof of Claim; Publication of the Internet Ads; and Report


15

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on Requests for Exclusion, attached to Plaintiffs’ Motion for Final Approval of the Baxter

Settlement as Exhibit 2, at ¶¶ 5-6. In addition, information regarding the settlement was posted

on several websites13 identified as regularly visited by class members. See id ¶¶ 12-15.

The Notice advised Class Members that Class Counsel would be seeking fees of up to 33

1/3% of the Settlement Fund and reimbursement of expenses, along with $50,000 incentive

awards for each Class Representatives. See Long-Form Notice at 7, attached as Exhibit A to

Garcia Declaration. The Notice further apprised Class Members of their right to object to the

motion for fees and expenses. The Court-established deadline for filing objections is March 31,

2014, and if any objections are received, they will be addressed in Class Counsel’s reply

submission to be filed on April 14, 2014. To date, no Class Member has objected. That not a

single Class Member has objected to the motion for fees and expenses to date underscores the

reasonableness of the fee and expense award sought, especially where, as here, the Class is

comprised of many sophisticated hospitals and national distributors more than capable of

objecting should they believe the requested fees to be unreasonable.14 See In re Remeron, 2005

WL 3008808, at *13 (“The lack of objections from the Class supports the reasonableness of the

fee request.”).

II. THE REQUEST FOR REIMBURSEMENT OF COSTS AND EXPENSES IS FAIR AND REASONABLE.

Class Counsel seek reimbursement from the Settlement Fund of $280,971.12 in litigation

13 These websites included Hospital and Health Networks, HEM/ONC Today, Medical Economics, and Modern Healthcare.

14 As noted above, the fact that no class members opted out of the settlement by the March 3 deadline (or since) is a testament to the quality of the settlement achieved.


16

1858796.1

expenses reasonably and actually incurred by Class Counsel in connection with commencing and

prosecuting the claims against the Defendants. Courts regularly award reimbursement of the

expenses counsel incurred in prosecuting the litigation. See Spicer v. Chicago Bd. Options

Exch., Inc., 844 F. Supp. 1226, 1256 (N.D. Ill. 1993) (detailing and awarding expenses incurred

during litigation); Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993)

(“Attorneys may be compensated for reasonable out-of-pocket expenses incurred and

customarily charged to their clients, as long as they ‘were incidental and necessary to the

representation’ of those clients.”) (quoting Reichman v. Bonsignore, Brignati & Mazzotta, P.C.,

818 F.2d 278, 283 (2d Cir. 1987)).15 The vast majority of Class Counsel’s expenses (more than

$4.5 million) were reimbursed out of the prior CSL/PPTA Settlement. The remaining expenses,

detailed more fully in the Joint Declaration and declarations attached to the compendium, reflect

primarily: (1) the maintenance of Plaintiffs’ document database, (2) conferences with Plaintiffs’

experts to resolve Settlement notice and administration matters, and (3) travel for Court-ordered

hearings, and (4) copying and mailing expenses related to court filings. Joint Decl. ¶¶ 36-39.

As these expenses were critical to achieving the excellent result obtained for the Class, and fully

reasonable in light of the demands of complex antitrust litigation and the market for these types

of litigation support services, Class Counsel ask that their remaining unreimbursed expenses be

reimbursed from the Settlement fund.

15 In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 192 (E.D. Pa. 2000) (“Counsel for each firm has submitted an affidavit attesting to the unreimbursed expenses paid out, and the court sees no reason to disallow any particular category or claim.”).


17

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III. INCENTIVE AWARDS FOR THE CLASS REPRESENTATIVES ARE WARRANTED AND THE AMOUNT REQUESTED IS REASONABLE.

“Incentive awards are justified when necessary to induce individuals to become named

representatives.” Synthroid , 264 F.3d at 722–23. In determining whether incentive awards are

appropriate, “relevant factors include the actions the plaintiff has taken to protect the interests of

the class, the degree to which the class has benefitted from those actions, and the amount of time

and effort the plaintiff expended in pursuing the litigation.” Cook v. Niedert, 142 F.3d 1004,

1016 (7th Cir. 1998); Spicer v. Chicago Bd. Options Exch., Inc., 844 F. Supp. 1226, 1267 (N.D.

Ill.1993).

Here, incentive payments of $50,000 to each of the Class Representatives are reasonable

and appropriate. To begin, simply by agreeing to serve as a named plaintiff the Class

Representatives opened themselves up to scrutiny and attention which, in and of itself, has been

found worthy of some type of remuneration. See Schulte v. Fifth Third Bank, 805 F.Supp. 2d

560, 600-01 (N.D. Ill. 2011). But the efforts of the Class Representatives in this matter went

much further than this. All three Class Representatives provided essential assistance in the

litigation by locating and producing responsive documents and information, participating in

teleconferences and meetings with counsel, making employees available to counsel, preparing

for and sitting for depositions, maintaining expensive legacy document systems, and

participating in a quarterly review of their document retention policies to ensure compliance with

the Court-ordered litigation hold. Decl. of Linda S. Tyler in Support of Petition for Incentive

Award to Named Plaintiff University of Utah (attached hereto as Exhibit 3); Decl. of

Giteshchandra Patel in Support of Petition for Incentive Award to Named Plaintiff Ravi Patel,


18

1858796.1

M.D., Inc. d/b/a Comprehensive Blood and Cancer Center (attached hereto as Exhibit 4); Decl.

of LCDA. Moraima Torres Toro in Support of Petition for Incentive Award to Named Plaintiff

Hospital Damas, Inc. (attached hereto as Exhibit 5). This substantial effort was time-consuming:

each of the three named plaintiffs spent hundreds of hours in the prosecution of this case. Id.

Not only did the Class Representatives exert this tremendous effort despite the

understanding that their individual recovery was likely to be small, they did so knowing that such

an effort would require them to invest significant time and resources to benefit the Class as a

whole. It additionally bears mention that the Class Representatives undertook this effort despite

a risk that the Defendants, who the Class Representatives remained dependent upon for the

purchase of medication and therapies throughout the litigation, would retaliate against them in

some manner.16 Given the substantial efforts involved in serving as a Class Representative in

this litigation and the risks of retaliation, it is not surprising that there is no evidence that any

member of the Class was willing to serve as a named plaintiff absent the possibility of an

incentive award. Joint Decl. ¶¶ 40-41. As such, this is precisely the type of case in which the

Seventh Circuit has found incentive payments to be appropriate. See Synthroid , 264 F.3d at

722–23

Notably, the incentive awards requested here collectively amount to only .1% of the total

recovery to the Class – an almost negligible percentage. Reducing each class member’s recovery

by 0.1% to compensate the Class Representatives for the risks and efforts they undertook to

16 To Defendants’ credit, there is no evidence of such retaliation in this matter, but each Class Representative ran the risk of retaliation by stepping forward to prosecute these claims on behalf of the Class.


19

1858796.1

benefit the Class as a whole is more than reasonable under the circumstances of this case. See

Cook, 142 F.3d at 1016 (7th Cir. 1998) (approving settlement that amounted to .19% of

Settlement Fund); In re Lawnmower Engine Horsepower Marketing & Sales Practices Litig.,

733 F. Supp. 2d 997, 1016 (E.D. Wis. 2010) (approving incentive payments to class

representatives where the total award “is only a tiny percentage (0.12%) of the class’s overall

recovery”). Moreover, it bears mention that the requested incentive awards amount to a small

fraction of the recoveries obtained by many of the larger Class members. Here, the recovery for

some members of the Class is measured in the millions of dollars. Thus, there is no concern that

the Class Representatives will be disproportionately compensated. Kaufman v. Am. Express

Travel Related Servs. Co., Inc., 264 F.R.D. 438, 448 (N.D. Ill. 2009) (refusing to award incentive

payments 125 times greater than the maximum recovery of any similar Class member). Indeed,

as discussed previously, were the requested incentive award unfair or unreasonable in any way, it

is highly likely that absent class members would have objected. That they did not serves only to

reinforce the appropriateness of the requested award.

Finally, $50,000 incentive awards are reasonable in light of the efforts required and the

recovery obtained for the Class. See Cook, 142 F.3d at 1016 (affirming incentive award of

$25,000 of $13 million Settlement fund); Lucken Family Ltd. P’ship, LLLP, v. Ultra Res., Inc.,

09-cv-01543-REB-KMT, 2010 U.S. Dist. LEXIS 144366, at *16-*17 (D. Colo. Dec. 22, 2010)

(noting Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251

(S.D. Ohio 1991) (approving incentive awards of $50,000 for each of 6 class representatives, for

a total of $300,000 out of a settlement fund of $56.6 million, which was 0.56% of the common

fund) and In re Mego Financial Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000) (approving


20

1858796.1

$5,000 incentive award to each plaintiff where settlement was valued at $1.75 million)).17

The efforts of the Class Representatives were absolutely essential to the Class’s recovery,

see Joint Decl. ¶¶ 40-41, and the Class Representatives should be rewarded accordingly. See

Cook, 142 F.3d at 1016 (7th Cir. 1998).

CONCLUSION

Class Counsel respectfully request that the Court approve their motion for an award of

attorneys’ fees equal to one third of the Settlement Fund (approximately $21.33 million). In

addition, Class Counsel requests an award of $280,971.12 from the Settlement Fund for

reimbursement of their actual costs and expenses incurred in connection with their representation

of the Class in this Action and not previously reimbursed. Finally, Counsel asks that the Court

grant their request to award each of the three Class Representatives $50,000 in recognition of

their significant efforts on behalf the Settlement Classes.

17 See also Been v. O.K. Indus., Inc., No. CIV-02-285-RAW, 2011 U.S. Dist. LEXIS 115151, at *33-36 (E.D. Okla. Aug. 16, 2011) (approving incentive awards of $100,000 for each of five class representatives for a total of $500,000); Hershey v. ExxonMobil Oil Corp., No. 07-1300-JTM, 2012 U.S. Dist. LEXIS 153803, at *43 (D. Kan. Oct. 26, 2012) (approving an incentive award of $60,500 plus accrued interest); Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (approving awards of $300,000 to each of four class representatives); In re Vitamin C Antitrust Litig., No. 06-MD-1738 (BMC) (JO), 2012 U.S. Dist. LEXIS 152275, at *35-36 (E.D.N.Y. Oct. 22, 2012) (approving incentive awards of $50,000 to each of two class representatives); cf. Ryskamp v. Looney, No. 10-cv-00842-WJM-KLM, 2012 U.S. Dist. LEXIS 114190, at *18-19 (D. Colo. Aug. 14, 2012) (approving a $50,000 incentive award to the lead plaintiff in a derivative action, not a class action, and citing In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373-74 (S.D. Ohio 1990) (approving incentive awards of either $55,000 or $35,000 to each of 5 representative plaintiffs)).


21

1858796.1

Dated: March 10, 2014

Respectfully submitted, /s/ Richard A. Koffman___________________ COHEN MILSTEIN SELLERS & TOLL PLLC Richard A. Koffman Benjamin D. Brown Christopher J. Cormier Emmy L. Levens 1100 New York Ave, NW, Suite 500 West Washington DC 20005 Plaintiffs' Steering Committee

/s/ Charles E. Tompkins__________________ WILLIAMS MONTGOMERY & JOHN LTD. Charles E. Tompkins Anthony J. O'Neill Bethany C. Teska 233 S. Wacker Dr., Suite 6100 Chicago, Il 60606 Plaintiffs' Steering Committee

FREEBORN & PETERS LLP David C. Gustman Deborah H. Bornstein 311 S. Wacker Dr., Suite 3000 Chicago, IL 60606 Plaintiffs’ Liaison Counsel


22

1858796.1

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served upon All Counsel of Record by e-mail on this 10th day of March, 2014.

Emmy L. Levens


UNITED STATES DISTRICT COURTFOR THE Northern District of Illinois − CM/ECF LIVE, Ver 6,1

Eastern Division

In Re: Plasma−Derivative Protein TherapiesAntitrust Litigation, et al.

Plaintiff,v. Case No.:

1:09−cv−07666Honorable Joan B.Gottschall

CSL Limited, et al.Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Wednesday, April 16, 2014:

MINUTE entry before the Honorable Joan B. Gottschall: Motion hearing held. Plaintiff's Unopposed Motion for Final Approval of Class Settlement with Baxter [696] and Motion for Final Award of Attorneys' Fees, Reimbursement of Expenses, and Approval of Incentive Awards for Class Representatives [697] are granted. Judgment is entered Defendants Baxter International, Inc. and Baxter Healthcare Corporation. Enter Order and Judgment. Civil case terminated. This order relates to all member cases associated with MDL 2109. MDL 2109 terminated. Mailed notice(ef, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules ofCivil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It wasgenerated by CM/ECF, the automated docketing system used to maintain the civil andcriminal dockets of this District. If a minute order or other document is enclosed, pleaserefer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit ourweb site at www.ilnd.uscourts.gov.

dismissing with prejudice from this action


EXHIBIT 3


IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

)

IN RE: URETHANE ANTITRUST ) MDL No. 1616LITIGATION ) No. 04-md-01616-JWL )

)This Document Relates To: )The Polyether Polyol Cases ) )

ORDER AWARDING ATTORNEYS’ FEESAND REIMBURSEMENT OF LITIGATION EXPENSES

TO PLAINTIFFS’ CO-LEAD COUNSEL

Upon consideration of Class Plaintiffs’ Petition For Award Of Attorneys’ Fees And

Reimbursement Of Litigation Expenses (Doc. # 2142), and all papers submitted in support of or

in opposition thereto, and after a December 12, 2011 hearing thereon, it is hereby ORDERED

that the Petition is GRANTED. It is specifically ORDERED that:

1. The Notice provided to the Class of Class Plaintiffs’ Petition For Award Of

Attorneys’ Fees And Reimbursement Of Litigation Expenses complied with this Court’s

September 28, 2011 Order (Doc. 2080), meets the requirements of Rule 23 of the Federal Rules

of Civil Procedure and due process, was the best notice practicable under the circumstances, and

constitutes due and sufficient notice to all persons entitled thereto.

2. Co-Lead Counsel Fine, Kaplan and Black, R.P.C. and Cohen Milstein Sellers &

Toll PLLC (“Co-Lead Counsel”) are awarded attorneys’ fees in the amount of one third (1/3) of

the funds held in the Escrow Account (as defined by paragraph 11 of the Huntsman Settlement

Agreement dated May 27, 2011), including interest earned thereon for the same time period and

at the same rate as that earned by the Settlement Fund until disbursed to Co-Lead Counsel.

Case 2:04-md-01616-JWL-JPO Document 2210 Filed 12/13/11 Page 1 of 3Case: 1:08-cv-05214 Document #: 519-4 Filed: 10/01/14 Page 2 of 4 PageID #:19616

These fees shall be payable to Class Counsel as soon as practicable after entry of this Order, and

thereafter Class Counsel shall be paid one third (1/3) of each subsequent Huntsman installment

payment into the Escrow Account made pursuant to paragraph 27 of the Huntsman Settlement

Agreement dated May 27, 2011.

3. Co-Lead Counsel are further awarded attorneys’ fees in the amount of one third

(1/3) of the funds held in the Escrow Account (as defined by paragraph 11 of the BASF

Settlement Agreement dated September 21, 2011), including interest earned thereon for the same

time period and at the same rate as that earned by the Settlement Fund until disbursed to Co-Lead

Counsel. These fees shall be payable to Class Counsel as soon as practicable after entry of this

Order, and thereafter Class Counsel shall be paid one third (1/3) of each subsequent BASF

installment payment into the Escrow Account made pursuant to paragraph 26 of the BASF

Settlement Agreement dated September 21, 2011.

4. Co-Lead Counsel are awarded reimbursement of litigation costs and expenses in

the amount of $5,014,329.08. Approximately thirty-nine percent (39%) of this award, or

$1,955,588.34, shall be paid from the funds held in the Escrow Account as defined by paragraph

11 of the Huntsman Settlement Agreement dated May 27, 2011. Approximately sixty-one

percent (61%) of this award, or $3,058,740.74, shall be paid from the funds held in the Escrow

Account as defined by paragraph 11 of the BASF Settlement Agreement dated September 21,

2011. The reimbursements of costs and expenses from the BASF and Huntsman Escrow

Accounts each shall be made in three installments, the first to paid as soon as practicable after

entry of this Order, and the remaining payments to be made as soon as practicable after each time

Huntsman or BASF make an installment payment into their respective Escrow Accounts.

-2-


5. The award of attorneys’ fees shall be allocated among plaintiffs’ counsel by

agreement among Co-Lead Counsel in a manner that, in Co-Lead Counsel’s good-faith judgment,

reflects each plaintiffs’ counsel’s contribution to the institution, prosecution and resolution of the

litigation against Defendants.

6. The Court retains jurisdiction over matters that are the subject of this Order until

after full disbursement of the Escrow Accounts, and/or as necessary to effectuate the terms of the

Settlement Agreements relating to attorneys’ fees and litigation costs and expenses.

ENTERED THIS 12th day of December, 2011.

s/ John W. Lungstrum Honorable John W. LungstrumUnited States District Judge

-3-


EXHIBIT 4


1


STANDARD IRON WORKS, on behalf of itself and all others similarly situated, Plaintiff, v. ARCELORMITTAL; ARCELORMITTAL USA, INC.; UNITED STATES STEEL CORPORATION; NUCOR CORPORATION; GERDAU AMERISTEEL CORPORATION; STEEL DYNAMICS, INC.; AK STEEL HOLDING CORPORATION; COMMERCIAL METALS, INC., Defendants.

Civil Action No. 08-CV-5214

DECLARATION OF GEOFFREY P. MILLER

I, GEOFFREY P. MILLER, declare under penalty of perjury as follows:

1. I am over 18 years of age, I am competent to make this declaration, and I have

personal knowledge of the matters and facts recited herein.

Scope of Retention

2. I have been retained to analyze the requested attorneys’ fee award in light of

empirical data on market rates and awards in similar cases.


2

Qualifications

3. I am the Stuyvesant P. Comfort Professor of Law at the New York University

Law School. I am a magna cum laude graduate of Princeton University and a 1978 graduate of

the Columbia Law School where I was Editor-in-Chief of the Law Review. I served as a law

clerk to the Honorable Carl McGowan of the United States Court of Appeals for the District of

Columbia Circuit and to the Honorable Byron R. White, Associate Justice of the United States

Supreme Court. I was an attorney-adviser at the Office of Legal Counsel in the United States

Department of Justice from 1980-1982. After practicing civil litigation with a Washington D.C.

law firm, I joined the faculty of the University of Chicago Law School in 1983, where I served as

Kirkland & Ellis Professor and Associate Dean. I moved to New York University in 1995. A

copy of my resume is attached as Appendix A.

4. I am a founder, board member and former co-president of the Society for

Empirical Legal Studies, an organization of researchers in the fields of law, economics,

sociology, psychology, business, and political science whose work examines the statistical and

empirical bases of legal rules. I am a 2011 inductee into the American Academy of Arts and

Sciences and am one of HeinOnline Law Journal Library’s top-100 most cited authors all time.1

A recent empirical study of scholarly influence lists me as one of the top 50 most relevant law

professors in the United States.2

5. I have written extensively over the years on issues relating to attorneys’ fees,

particularly in class action cases. My articles with Professor Macey on class action litigation

1 See http://www.heinonline.org/HOL/MostCitedAuthors?collection=journals. 2 John Yoo & James Cleith Phillips, The Cite Stuff: Inventing a Better Law Faculty Relevance Measure, UC Berkeley Public Law Research Paper No. 2140944 (September 3, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2140944.


3

have been cited as authority by courts across the United States.3 My empirical studies on class

action cases, co-authored with Professor Theodore Eisenberg of Cornell University, are a leading

authority on that topic.4

3 Eubank v. Pella Corporation, 753 F.3d 718 (7th Cir. 2014); In re Processed Egg Products Antitrust Litigation, 2012 WL 2885924 (E.D.Pa. 2012); Louisiana Municipal Police Employees' Retirement System v. Pyott,--- A.3d ----, 2012 WL 2087205 (Del.Ch. 2012); Forsythe v. ESC Fund Management Co., 2012 WL 1655538 ( Del.Ch. 2012); Creative Montessori Learning Centers v. Ashford Gear LLC, 662 F.3d 913, (7th Cir. 2011); In re Sauer-Danfoss Inc. Shareholders Litigation, 2011 WL 2519210 (Del.Ch. 2011); Thorogood v. Sears, Roebuck and Co., 627 F.3d 289 (7th Cir. 2010); Ehrheart v. Verizon Wireless, 609 F.3d 590 (3rd Cir. 2010); In re Revlon, Inc. Shareholders Litigation, 990 A.2d 940 (Del.Ch. 2010); Lubin v. Farmers Group, Inc., 2009 WL 3682602 (Tex.App. 2009); Westgate Ford Truck Sales, Inc. v. Ford Motor Co., 2007 WL 2269471 (Ohio App. 2007); Acosta v. Trans Union, LLC, 243 F.R.D. 377 (C.D.Cal. 2007); Amalgamated Bank v. Yost, 2005 WL 226117 (E.D.Pa. 2005); Official Committee of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548 (3rd Cir. 2003); Fruchter v. Florida Progress Corp., 2002 WL 1558220, (Fl. App. 2002); In re Microstrategy, Inc., 172 F.Supp.2d 778 (E.D.Va. 2001); In re Cendant Corp. Litigation, 264 F.3d 201 (3rd Cir. 2001); Scardelletti v. Debarr, 265 F.3d 195 (4th Cir. 2001); In re Auction Houses Antitrust Litigation, 197 F.R.D. 71 (S.D.N.Y. 2000); Lealao v. Beneficial California, Inc., 82 Cal.App.4th 19, 97 Cal.Rptr.2d 797 (2000); AUSA Life Ins. Co. v. Ernst and Young, 206 F.3d 202 (2nd Cir. 2000); Davis v. Carl Cannon Chevrolet-Olds, Inc., 182 F.3d 792 (11th Cir. 1999); In re Baan Co. Securities Litigation, 186 F.R.D. 214 D.D.C. 1999); In re Quantum Health Resources, Inc., 962 F.Supp. 1254 (C.D. Cal. 1999); Strong v. BellSouth Telecommunications, Inc., 173 F.R.D. 167 (W.D.La. 1997); Howard v. Globe Life Ins. Co., 973 F.Supp. 1412 (N.D.Fla. 1996); Kamilewicz v. Bank of Boston Corp., 100 F.3d 1348 (7th Cir. 1996); In re Asbestos Litigation, 90 F.3d 963 (5th Cir. 1996); General Motors Corp. v. Bloyed, 916 S.W.2d 949 (Tex. 1996); Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill.2d 235, 659 N.E.2d 909, 213 Ill.Dec. 563 (1995); In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir. 1995); In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768 (3rd Cir. 1995); BTZ, Inc. v. Great Northern Nekoosa Corp., 47 F.3d 463 (1st. Cir. 1995); Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3rd Cir. 1993); In re Oracle Securities Litigation, 829 F.Supp. 1176 (N.D. Ca. 1993); Gottlieb v. Wiles, 150 F.R.D. 174 (D.Colo. 1993); Durr v. Intercounty Title Co. of Illinois, 826 F.Supp. 259 (N.D.Ill. 1993); qad. inc. v. ALN Associates, Inc., 807 F.Supp. 465 (N.D.Ill. 1992); Wesley v. General Motors Acceptance Corp., 1992 WL 57948 (N.D.Ill. 1992); In re Verifone Securities Litigation, 784 F.Supp. 1471 (N.D.Cal. 1992); Davis v. Coopers & Lybrand, 1991 WL 154460 (N.D.Ill. 1991). 4 See Chesemore v. Alliance Holdings, Inc., 2014 WL 4415919 (W.D. Wis. 2014); In re Celexa and Lexapro Marketing and Sales Practices Litigation, 2014 WL 4446464 (D.Mass. 2014); In re Colgate-Palmolive Co. Erisa Litigation, --- F.Supp.2d ---- 2014 WL 3292415 (S.D.N.Y. 2014); Eubank v. Pella Corporation, 753 F.3d 718 (7th Cir. 2014); Haggart v. United States, 116 Fed.Cl. 131, 2014 WL 2112179 (Ct. Cl. 2014); Scovil v. FedEx Ground Package System, Inc., U2014 WL 1057079 (D.Me. 2014); Phillips v. Asset Acceptance, LLC, 736 F.3d 1076 (7th Cir. 2013); Richardson v. L'Oreal USA, Inc., --- F.Supp.2d ----, 2013 WL 5941486 (D.D.C. 2013); Swift v. Direct Buy, Inc., 2013 WL 5770633 (N.D.Ind. 2013); Singleton v. Domino's Pizza, LLC, --- F.Supp.2d ----, 2013 WL 5506027 (D.Md. 2013); In re Schering-Plough Corp. Enhance Securities Litigation, 2013 WL 5505744 (D.N.J. 2013); In re Vioxx Products Liability Litigation, 2013 WL 5295707 (E.D.La. 2013); Evans v. TIN, Inc., 2013 WL 4501061 (E.D.La. 2013) (“The data sets in the empirical study conducted by Professors Eisenberg and Miller are commonly used by district courts in this circuit”); Silverman v. Motorola Solutions, Inc., --- Fed.Appx. ----, 2013 WL 4082893 (7th Cir. 2013); City of Pontiac General Employees' Retirement System v. Lockheed Martin Corp.. --- F.Supp.2d ---, 2013 WL 3796658 (S.D.N.Y. 2013); Gortat v. Capala Bros., --- F.Supp.2d ----, 2013 WL 2566622 (E.D.N.Y. 2013); In re Southeastern Milk Antitrust Litigation, 2013 WL 2155387 (E.D.Tenn. 2013); Strawn v. Farmers Ins. Co. of Oregon, 353 Or. 210, 297 P.3d 439 (Or. 2013); Heekin v. Anthem, Inc., 2012 WL 5878032 (S.D.Ind. 2012); Espenscheid v. DirectSat USA, LLC, 688 F.3d 872, 877 (7th Cir. 2012); In re Trans Union Corp. Privacy Litig., 629 F.3d 741, 744 (7th Cir. 2011); Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739, 760 (11th Cir. 2004) (Judges Tjoflat and Birch, dissenting from denial of en banc review); Strawn v. Farmers Ins. Co. of Oregon, 353 Or. 210, 297 P.3d 439 (2013); In re Amaranth Natural Gas Commodities Litig., No. 07-6377, 2012 U.S. Dist. LEXIS 82599,


4

6. I have participated in class action litigation, both as an attorney and more recently

as an expert consultant and expert witness, on issues such as class counsel fees and the value of

settlements.

7. I am being compensated for my services in this matter on an hourly basis at my

usual billing rate of $750 per hour.

at *7 n.12 (S.D.N.Y. June 11, 2012); Board of Trustees of AFTRA Ret. Fund v. JPMorgan Chase Bank, N.A., No. 09-686, 2012 U.S. Dist. LEXIS 79418, at *5 n.12 (S.D.N.Y. June 7, 2012); Lane v. Page, No. 06-1071, 2012 U.S. Dist. LEXIS 74273, at *161 (D.N.M. May 22, 2012); Silverman v. Motorola, Inc., No. 07-4507, 2012 U.S. Dist. LEXIS 63477, at *15 (N.D. Ill. May 7, 2012); In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., MDL No. 09-2046, 2012 U.S. Dist. LEXIS 37326, at *94, *116 (S.D. Tex. Mar. 20, 2012) (“The tables included in the [Eisenberg and Miller] study are good indicators of what the market would pay for class counsel's services because the tables show what attorneys have been paid in similar cases, and thus what class counsel could have expected when they decided to invest their resources in this case.”); Walsh v. Popular, Inc., No. 09-1552, 2012 U.S. Dist. LEXIS 32991, at *24 (D.P.R. Mar. 12, 2012); Am. Int’l Group, Inc. v. Ace Ina Holdings, Inc., No. 07-2898, 2012 U.S. Dist. LEXIS 25265, at *59 (N.D. Ill. Feb. 28, 2012); Ebbert v. Nassau County, 05-5445, 2011 U.S. Dist. LEXIS 150080, at *41 (E.D.N.Y. Dec. 22, 2011); In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1336 n.4 (S.D. Fla. 2011); Latorraca v. Centennial Techs., Inc., No. 97-10304, 2011 U.S. Dist. LEXIS 135435, at *11 (D. Mass. Nov. 22, 2011); In re Ky. Grilled Chicken Coupon Mktg. & Sales Litig., 2011 WL 5599129 (N.D. Ill. Nov. 16, 2011); Pavlik v. FDIC, No. 10-816, 2011 U.S. Dist. LEXIS 126016, at *11 (N.D. Ill. Nov. 1, 2011); In re Puerto Rican Cabotage Antitrust Litig., 815 F. Supp. 2d 448, 461 (D.P.R. 2011); In re AT & T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d 1028, 1033 (N.D. Ill. 2011); In re Vioxx Prods. Liab. Litig., 760 F. Supp. 2d 640, 652 (E.D. La. 2010); Velez v. Novartis Pharms Corp., 04-09194, 2010 U.S. Dist. LEXIS 125945, at *60-61 (S.D.N.Y. Nov. 30, 2010); Braud v. Transport Serv. Co. of Illinois, No. 05-1898, 2010 U.S. Dist. LEXIS 93433, at *27-30 (E.D. La. Aug. 17, 2010); In re Lawnmower Engine Horsepower Mktg. & Sales Prac. Litig., 733 F. Supp. 2d 997, 1013 (E.D. Wis. 2010); Klein v. O’Neal, Inc., 705 F. Supp. 2d 632, 675 (N.D. Tex. 2010); Fiala v. Metro. Life Ins. Co., 899 N.Y.S.2d 531, 541 (N.Y. Sup. Ct. 2010); In re Metlife Demutualization Litig., 689 F. Supp. 2d 297, 359 (E.D.N.Y. 2010); In re Marsh Erisa Litig., 265 F.R.D. 128, 149 (S.D.N.Y. 2010); Strawn v. Farmers Ins. Co., 226 P.3d 86, 99 (Or. Ct. App. 2010); Hall v. Children’s Place Retail Stores, Inc., 669 F. Supp. 2d 399, 403 n.35 (S.D.N.Y. 2009); In re Trans Union Corp. Privacy Litig., No. 00-4729, 2009 U.S. Dist. LEXIS 116934, at *22-25, *39 (N.D. Ill. Dec. 9, 2009); Loudermilk Serv., Inc. v. Marathon Petroleum Co. LLC, 623 F. Supp. 2d 713, 724 (S.D. W.Va. 2009) (“Because the Eisenberg and Miller study was a far more comprehensive analysis of similar cases than this Court could hope to achieve in a reasonable time, the Court accepts their results as a benchmark on which to judge a reasonable fee in this case.”); Rodriguez v. West Publ’g Co., 563 F.3d 948, 958 (9th Cir. 2009); In re OCA, Inc. Sec. and Deriv. Litig., No. 05-2165, 2009 U.S. Dist. LEXIS 19210, at *63-66 (E.D. La. Mar. 2, 2009); In re Enron Corp. Secs., Deriv. & ERISA Litig., 586 F. Supp. 2d 732, 800 (S.D. Tex. 2008); In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 755 n.2 (S.D. Ohio 2007); In re Tyco Int’l., Ltd. Multidistrict Litig., 535 F. Supp. 2d 249, 269 (D.N.H. 2007); Acosta v. Trans Union, LLC, 243 F.R.D. 377, 388 (C.D. Cal. 2007); Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830, 853, 862-64, 866, 870 (E.D. La. 2007) (“[T]he Court will look to Eisenberg and Miller’s data sets to determine an average percentage for cases of similar magnitude”); Silberblatt v. Morgan Stanley, 524 F. Supp. 2d 425, 435 n.6 (S.D.N.Y. 2007); Fireside Bank v. Superior Court, 155 P.3d 268, 281 n.7 (Cal. 2007); In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30, 38, 42 (D.N.H. 2006); Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1209, 1211 (S.D. Fla. 2006); In re Educ. Testing Serv. Praxis Principles of Learning and Teaching Grades 7-12 Litig., 447 F. Supp. 2d 612, 629-32 (E.D. La. 2006); Hicks v. Morgan Stanley, No. 01-10071, 2005 U.S. Dist. LEXIS 24890, at *25 (S.D.N.Y. Oct. 24, 2005); In re Lupron Mktg. and Sales Prac. Litig., 01-10861, 2005 U.S. Dist. LEXIS 17456, at *18 (D. Mass. Aug. 17, 2005); In re HPL Techs., Inc. Sec. Litig., 366 F.Supp.2d 912, 914 (N.D. Cal. 2005); In re Relafen Antitrust Litig., 231 F.R.D. 52, 80-81 (D. Mass. 2005); In re Relafen Antitrust Litig., 221 F.R.D. 260, 286 (D. Mass. 2004).


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Materials Relied Upon

8. I have reviewed an extensive compilation of materials from this case, including

the documents described in Appendix B to this declaration. I have discussed the matter with

plaintiffs’ counsel, reviewed numerous cases dealing with attorneys’ fees in class action

settlements, and evaluated the statistical reports and analyses surveying class action legal fee

awards set forth in Appendix C to this declaration.

Summary of Opinion

9. It is my opinion that the requested fee award of 33.3% of the settlement fund is

comfortably within the range of common outcomes, and reasonable in light of prevailing market

rates, as informed by data on fee awards in cases in this Circuit and across the country.

Background

10. The Complaint alleges that Defendant steel companies conspired to fix the price

of steel products by engaging in coordinated reductions in output, thus driving supply down and

increasing prices.

11. Defendants moved to dismiss on the ground that the complaint failed to set forth

plausible allegations of an antitrust conspiracy as required under Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007).

12. In June 2009 this Court denied the motion to dismiss, finding that the complaint

sufficiently alleged facts plausibly suggesting an agreement to curtail production.

13. The Court bifurcated discovery and ordered the parties to focus on class

certification discovery first. The Court then imposed a “test case” procedure where certain types

of discovery could be sought from only two of the eight defendants in the first instance. After


6

plaintiffs satisfied the Court that the “test case” discovery had yielded fruit, then they were

allowed to pursue class certification discovery against the remaining defendants.

14. Plaintiffs moved for class certification. Defendants vigorously opposed the

motion and moved to exclude the testimony of two of Plaintiffs’ experts.

15. In March and April 2014 this Court held three days of hearings on Plaintiffs’

motion for class certification.

The Settlements

16. Meanwhile, Plaintiffs began to negotiate settlements with individual Defendants.

Those negotiations were hard-fought and adversarial.

17. In the Spring of 2014, Plaintiffs’ Counsel achieved “icebreaker” settlements with

Commercial Metals Company, AK Steel Holding Corporation, and Gerdau Ameristeel

Corporation. Soon thereafter, a larger defendant, ArcelorMittal, also settled, followed by United

States Steel Corporation. The following table summarizes the settlements:

Table 1: Settlements Now Before the Court

Defendant(s) Date of Agreement Amount Commercial Metals Company March 2014 $3,999,999 AK Steel Holding Corporation April 2014 $5,800,000 Gerdau Ameristeel Corporation April 2014 $6,100,000 ArcelorMittal S.A. and ArcelorMittal USA LLC May 2014 $90,000,000 United States Steel Corporation July 2014 $58,000,000 Total $163,899,999

18. Notably, these all-cash settlements do not allow for any reversion of unclaimed

funds to the Defendants. Rather, the settlement amounts will be distributed pro rata to class

members who file valid claims. Thus, the full pecuniary benefits of this settlement will accrue

for the benefit of class members.


7

19. In addition to obtaining monetary relief for class members, these settlements

require the Settling Defendants to assist Plaintiffs’ Counsel in their prosecution of this case

against the remaining Defendants by producing evidence relating to the merits, authenticating

documents, and making certain witnesses available for interviews and depositions.

20. This Court has given preliminary approval to the Settlements and scheduled a

final fairness hearing.

The Fee Request

21. Plaintiffs’ Counsel seeks a fee award equal to one-third (33.3%) of the settlement

funds.

Analysis

22. I recognize that it is the Court’s responsibility to determine an appropriate counsel

fee and that the role of an expert is necessarily limited. I offer the following opinions in the hope

they may provide information that can assist the Court in carrying out this task.

23. Effective enforcement of the antitrust laws is essential to a market economy.

Without legal protections for competition, diligently and vigorously enforced both by

government and the private sector, producers would take unfair advantage of customers and the

price system would fail to serve its fundamental purpose of facilitating the efficient distribution

of goods and services. Accordingly, there is a strong public interest in incentivizing capable

attorneys to act as “private attorneys-general” in policing against illegal anticompetitive

behavior. In my opinion it is appropriate to take these public policies into account when

evaluating Plaintiff Counsel’s fee request.

24. Courts in this Circuit employ two methodologies to evaluate fee requests in class

action settlements: the percentage-of-recovery method, which compares the fee request with the


8

benefit recovered for the class, and the lodestar method, which determines counsel’s reasonable

hours and hourly rate and adjusts this figure by a “multiplier” to account for special features of

the litigation, most importantly the risk assumed by class counsel. In either case, the goal of the

analysis is to mimic the rate that would be paid by the market for similar services. See

Americana Art China Co., Inc. v. Foxfire Printing and Packaging, Inc. 743 F.3d 343, 346 (7th

Cir. 2014). I will review counsel’s fee request using both methodologies, beginning first with

the percentage method.

25. In performing this analysis, I draw on empirical evidence on fee awards in settled

class action cases. These data provide objective information about prevailing market norms and

standards and are employed by courts around the country when evaluating fee petitions in class

action cases. See In re Heartland Payment Systems, Inc. Customer Data Sec. Breach Litigation,

851 F.Supp.2d 1040, 1080 (S.D.Tex. 2012) (Rosenthal, J.).

Percentage Method

26. The percentage method is an excellent approach for calculating a counsel fee in

cases where the benefit to class members can reasonably be quantified. Advantages of the

percentage method include the following:

(a) It is consistent with private market arrangements for contingent fee litigation,

which nearly always employ a percentage rather than a lodestar methodology.

(b) It is easy to calculate and does not require courts to don a “green visor” and make

a painstaking audit of counsel’s hours and hourly rate.

(c) It aligns counsel’s incentives with those of the clients by giving attorneys a direct

pecuniary interest in the outcome of the case that is precisely parallel to the interest of the clients.

(d) It encourages counsel to engage in efficient litigation tactics and discourages


9

excessive expenditures of attorney time.

27. Research on percentage fees in class action settlements, published in the late

1990s, identified basic patterns that remain valid today. A 1996 study by the National Economic

Research Associates examined average and median fee awards for settled securities fraud cases.

Average awards fell within a narrow range, from a low of 30.73% in the Fifth Circuit to a high of

32.78% in the Fourth Circuit. The average fee in the Seventh Circuit was 31.83% ─ very close

to the 33.3% sought in the present case.

Table 2: Plaintiffs’ Attorneys Fees by Federal Circuit: NERA Data

Circuit Number of Settlements

Average Attorney Fee as a Percentage of

Settlement

D.C. 2 31.67 First 26 30.99

Second 69 31.48 Third 58 32.00 Fourth 12 32.78 Fifth 26 30.73 Sixth 13 31.00

Seventh 18 31.83 Eighth 12 32.47 Ninth 155 32.57 Tenth 13 32.13

Eleventh 29 29.92 Total 433 31.84

Source: Denise N. Martin, Vinita M. Juneja, Todd S. Foster, and Frederick C. Dunbar, Recent Trends IV: What

Explains Filings and Settlements in Shareholder Class Actions? Table 12b (1996).

28. Researchers affiliated with NERA updated the 1996 study in 1999. The 1999

NERA update shows that, exclusive of expenses, attorneys’ fee awards in securities class actions

continued to cluster at between 31-33% of the common fund recovery. Table 3 shows this:


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Table 3: Fee Awards in Settled Securities Class Actions 1991-1999: NERA Data

1991

1992

1993

1994

1995

1996

1997

1998

Jun-99

Number of

Settlements

48

79

90

101

104

104

98

80

29

Average Fee as a

Percentage of Average Settlement

33%

27%

24%

34%

33%

31%

32%

31%

33%

Source: Todd S. Foster, Denise N. Martin, Vinita M. Juneja, Frederick C. Dunbar, Trends in Securities Litigation and the Impact of PSLRA, Figure 12 (June 1999).

29. A 1996 Federal Judicial Center study examined all class actions terminated in

four federal district courts between July 1, 1992 and June 30, 1994. Thomas E. Willging, et al.,

Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory

Committee on Civil Rules 4 (1996). Median fee awards ranged from 27% to 30%, and most

awards were between 20% and 40% of the monetary settlement. Fee awards clustered at around

30 percent in all types of class action litigation in the four federal district courts, including the

Northern District of Illinois (where the highest mean fees were reported):


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Table 4: Percentage Fees in Four Federal District Courts

Source: Thomas E. Willging, Laural L. Hooper & Robert J. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 151 (1996)

30. During the decade of the 2000s, researchers expanded their investigations to

include substantially larger data sets. The basic findings were entirely consistent with the studies

described above. One large-scale study covering a ten year period in courts around the country

is found in the March-April 2003 edition of Class Action Reports (CAR). The following table

reports the CAR data broken down by type of case:


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Table 5: Fee-Award Percent Summary by Case Category

Category Mean Fee % Median Fee % Number

Antitrust 26.8 28.4 31

Consumer 24.3 25.0 48

Civil rights 23.5 25.5 4

Derivative 33.3 33.3 1

Employment 25.5 25.7 17

Environmental 30.5 30.5 2

Government regulation

29.7 29.7 1

Labor/wage/pension

22.9 26.4 30

Mass tort 17.6 17.0 8

Securities 27.9 30.0 483

Taxpayer 3.5 3.5 1

Utilities 20.3 20.3 2

Social welfare/entitle-

ments 16.9 16.9 2

Total 27.0 30.0 630

Sources: Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in Class Action Settlements: An Empirical Study, 1 Journal of Empirical Legal Studies 51(2004), analyzing data from Stuart J. Logan, Jack Moshman & Beverly C. Moore, Jr., Attorney Fee Awards in Common Fund Class Actions, 24 Class Action Rep. 169 (2003).

This table discloses that the mean fee across the range of cases in the study was 27.0% and the

median fee was 30.0%.

31. During the decade of the 2000s academic researchers also published analyses of

large-scale data sets of class action attorneys’ fees. Eisenberg and Miller studied fees in all

published class action settlements between 1993 and 2008. They found that the mean percentage


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fee in federal cases was 24% and the median fee was 25%.5

32. Eisenberg and Miller’s data were broad, in the sense that they covered all reported

cases over a fifteen year period. Fitzpatrick, in contrast, examined all federal class action

settlements in 2006-2007, including non-reported as well as reported cases. He found that the

mean attorneys’ fee was 25.7% and the median fee was 25.0%.6

33. I recently updated the Eisenberg-Miller study of attorneys’ fees in class action

settlements for the years 2009-2013, inclusive, analyzing 458 cases where the percentage fee

could be determined. This study discloses that the mean fee award was 27% and the median was

29%. For courts in the Seventh Circuit, the mean fee award was 29% and the median was 31%:

Table 6: Plaintiffs’ Attorneys Fees by Federal Circuit: 2009-2013

Circuit Mean Median Number of Cases

1st .23 .23 8 2nd .28 .30 116 3rd .27 .29 46 4th .29 .32 22 5th .26 .28 12 6th .26 .26 23 7th .29 .31 14 8th .25 .25 20 9th .27 .28 144 10th .24 .25 18 11th .22 .22 14 D.C. .30 .33 6

Federal .27 .26 6

Total .27 .29 449

Source: Westlaw, LexisNexis, PACER

5 Theodore Eisenberg and Geoffrey Miller, Attorneys’ Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 259 table 4 (2010).

6 Brian Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical L. Stud. 811 (2010).


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34. To summarize the data, most class action fee awards range between 20% and 40%

of the class recovery, with average/median fees clustering between 25-30% nationwide and the

most recent data indicating average/median fees of approximately 30% in the Seventh Circuit.

35. It is the very nature of averages, of course, that some values will be above the

mean and some will be below, and several features of the present case militate in favor of a one

third fee that slightly exceeds the average fee award. This was not an average case. It was

complicated, risky, did not settle early, and counsel invested more than fifty thousand hours and

five million dollars over six years before achieving these settlements. A one third fee is fully

warranted in these circumstances.

36. First, the extent of counsel’s risk is an important factor explaining variation in

percentage fee awards. Eisenberg and Miller find in a survey of all published class action

settlements between 1993 and 2008 that high-risk cases generated higher fees than low-risk cases

in 80% of the case categories they examined.7 Regression analysis revealed that high-risk cases

were significantly associated with higher fee awards as a percentage of the recovery in every

specification of the model.

37. Counsel in this litigation undertook significantly more risk than in many class

action cases. For example:

(a) Unlike many antitrust class actions, this case did not grow out of a government

investigation or government enforcement proceeding. Counsel had to investigate the case and

develop legal and factual theories of recovery from the ground up.

(b) It is in the nature of an antitrust conspiracy that the conduct occurs in the

shadows. Sophisticated parties are careful to disguise their illegal activities, hide their tracks,

7 Theodore Eisenberg and Geoffrey Miller, Attorneys’ Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 265 Table 8 (2010).


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and develop benign explanations for potential acts of misconduct that do come to light. The

secrecy of the Defendants’ actions thus created a risk that Plaintiffs’ Counsel would never be

able to establish facts sufficient to prove their allegations, even if an antitrust conspiracy in fact

occurred.

(c) This case was costly, both in terms of Counsel’s hours and in expenses for expert

witnesses and other services. This is due in part to the evolving standard for certifying a Rule

23(b)(3) class. Counsel reasonably chose to commission several million dollars worth of

econometric modeling and other expert evidence as one way to demonstrate commonality and

predominance. Given the scope of the case and uncertainty about the legal standard, counsel

acted prudently in my opinion. Counsel incurred all these expenses in advance, with no

assurance of repayment at the end of the day.

(d) Defendants argued that the allegations in the complaint did not support the

“plausible” inference of conspiracy required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007). They advanced numerous arguments to the effect that it would have been impossible to

implement a supply-restriction conspiracy given the nature of the steel industry, and they painted

the complaint as fundamentally flawed. Though Plaintiffs prevailed (and continue to prevail)

over such arguments, when undertaking the case there surely was a risk of a less favorable

outcome.

(e) Discovery also posed significant risks for Plaintiffs’ Counsel. Cases of this nature

are necessarily costly and time-consuming, and the costs and risks were amplified here by the

number of defendants (eight), the volume of documents produced (over 3.5 million pages to

date), the length of the class certification schedule, and the risks borne by Plaintiffs in connection

with Defendants’ proposal to bifurcate (and hence substantially limit) discovery in advance of


16

class certification.

(f) Further, although the Court’s “test case” approach to discovery served a valuable

purpose, it created even further risks and costs for Class Counsel. It lengthened the discovery

period, and therefore extended the time to resolution. And it imposed a hurdle because if Class

Counsel could not persuade the Court that they had found useful evidence in the files of the

executives of the two sampled Defendants, they might not be permitted to look at the files of the

executives of the other Defendants.

(g) Class certification was an important risk factor. Plaintiffs alleged an industry-

wide conspiracy involving multiple Defendants and steel products. Defendants argued that

Plaintiffs’ claims involved a plethora of individual issues that made the case unmanageable on a

class basis. Defendants further challenged the adequacy and typicality of the named plaintiffs,

insisted that the class was not ascertainable, and argued that, given the substantial size of some

individual claims, class treatment was not superior to other available means for resolving the

controversy. Defendants also filed a Daubert challenge to two of Plaintiffs’ experts and

proffered the testimony of respected experts of their own. Although in my opinion Plaintiffs’

arguments in favor of class certification were persuasive, Defendants and their capable counsel

argued the issues well.

(h) Finally, this is not a case where class counsel settled for a substantial amount after

incurring only a small number of hours. This matter has been pending for more than six years,

far longer than the usual class action case, and discovery was exceptionally complex. The

burden of litigating this case is evident in the hours expended on the matter so far – more than

53,000 – as well as counsel’s lodestar (number of hours times hourly rates) of more than $27.7

million. The economies of scale that cause courts to reduce the percentage fee in some large


17

cases were not present here.

38. Given these risks, as well as the other ex ante risks of litigation on the merits

(summary judgment, Daubert, trial, appeal, etc.), a fee percentage on the high end of the usual

range is in my opinion warranted.

39. Nor is it appropriate, in my opinion, to reduce the percentage fee award based on

the size of the settlement fund. Some courts and commentators have opined that the percentage

of recovery should decline as settlements get larger so as to avoid awarding potential windfall

fees. Others have noted that reducing percentage fees as cases become large creates undesirable

incentives for class counsel, including incentives not to push for the largest possible settlement

and also to potentially settle earlier in the life of the case. The empirical data yield ambiguous

results regarding whether and in what cases courts reduce fee awards based on settlement size,8

and the Seventh Circuit, for its part, has held that district courts should avoid imposing a

“megafund” rule under which percentage fee awards are necessarily reduced in big cases. In re

Synthroid Marketing Litig., 264 F.3d 712 (7th Cir. 2001) (rejecting percentage cap on fees in

“megafund” cases because class counsel should be awarded market rates).

40. Regardless of the wisdom of scaling fees in certain large cases (e.g., where the

government did the heavy lifting and/or class counsel bore little risk and settled early), a one

third fee is fully justified here for the reasons explained above – where Class Counsel developed

the claims from the ground up, bore the risk, invested more than thirty million dollars in

8 The NERA study mentioned above found virtually no difference in percentage fees as between large and small settlements. See Denise N. Martin, Vinita M. Juneja, Todd S. Foster, and Frederick C. Dunbar, Recent Trends IV: What Explains Filings and Settlements in Shareholder Class Actions? Table 9 (1996). Other studies find that average percentage fee awards tend to fall as recoveries rise. See Brian Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 Journal of Empirical Legal Studies 811, table 10 (2010); Theodore Eisenberg and Geoffrey Miller, Attorneys’ Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 265 table 7 (2010). My update on fee awards through 2013 yields similar results.


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professional time and expenses, and obtained a favorable all-cash settlement fund for the class.

A one third percentage fee – which is only slightly higher than the average class action fee award

and is consistent with many fee awards in similar antitrust litigation – is in my opinion

reasonable and appropriate under the circumstances.

Lodestar Method

41. I now consider the fee request using the lodestar methodology, which is

appropriate as a cross-check to the calculation of a reasonable attorneys’ fee using the percentage

method. The lodestar analysis proceeds in three steps: (a) determining the reasonable number of

hours; (b) determining the reasonable hourly rate; and (c) determining the lodestar multiplier.

Hours

42. I am informed by counsel that plaintiffs’ firms expended 53,343 hours in

conducting this litigation.

43. While I have not attempted to audit counsel’s activities at the level of evaluating

the appropriate time or staffing levels for particular tasks, I have considered the reported hours in

light of the circumstances of this case and in comparison with other class action settlements.

44. This case was unusually demanding on attorney time. To prove the claim of a

covert agreement to fix prices, counsel needed to engage in a searching investigation of the

Defendants’ conduct – not only discovering and analyzing actions and comments made in

meetings with other Defendants, but also probing into the available internal communications

within each of the Defendant firms. The analysis was made all the more challenging by the fact

that Defendants took pains to disguise possible evidence of anticompetitive behavior and sought

to provide a plausible cover for potentially wrongful conduct.

45. It was only through the persistent efforts of counsel that the factual record of this


19

case could be advanced to the point where a settlement could be informed by reasonable

information about the Defendants’ conduct and the impact of that conduct on market prices. In

light of these circumstances, it is my judgment that the hours expended by counsel were

reasonable.

46. I have also considered the allocation of work and responsibility in this case.

Counsel’s records reflect an appropriate allocation of responsibility as between senior and junior

attorneys, with a view towards litigating this case in an efficient and effective manner.

Hourly Rates

47. I now turn to an evaluation of the appropriate hourly rates. These rates are

determined, under the lodestar analysis, by comparing counsel’s rates with those of attorneys in

the relevant market who possess similar background, experience and qualifications. In my

judgment the relevant market is the market for trial attorneys practicing in the field of complex

litigation.

48. In evaluating the reasonableness of counsel’s hourly rates, I have examined the

lodestar statement of co-lead counsel Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC.

This firm reports current hourly rates ranging from $600-$1,100 per hour for partners working

on the case. Fewer than 30 hours were billed by the most expensive senior partner. The bulk of

the partner work was done by experienced partners billing at lesser rates. Associate rates range

from $395-$525/hour. Paralegals are billed at $180-$250 per hour. I am informed that the

Kellogg Huber firm has a substantial practice of serving clients on a billable hour basis and that

these are the same rates it charges its paying clients.

49. I have also examined the lodestar statement of co-lead counsel Fine, Kaplan and

Black, R.P.C. This firm reports current hourly rates ranging from $425-$750 per hour for


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attorneys. Fewer than 8% of the firm’s hours in the case were billed by the firm’s most

expensive senior partners. The bulk of the work was done by experienced partners and senior

associates billing at lesser rates. Senior paralegals are billed at $250 per hour. I am informed

that the Fine Kaplan firm also serves clients on a billable hour basis and that these are the same

rates it charges those paying clients.

50. A variety of sources of information are available to evaluate the reasonableness of

these rates. Publicly available data records billing rates for defense firms involved in the present

case. In In re Dynegy Holdings, LLC, et al., Debtors, No. 11-38111 (CGM), a bankruptcy case, Sidley &

Austin reported billing rates of $625-$1,050 and $340-$950 for non-partners. A recent survey of law firm

billing rates disclosed median partner rates of $960 for Cleary Gottlieb and $900 for Cadwalader,

Wickersham & Taft. 9

51. On the plaintiffs’ side, comparable billing rates can be gleaned from a review of

awards in prior class action settlements in securities and shareholders derivative litigation. The

following table reports on hourly rates approved in cases in the Southern District of New York.

Although these data are not comprehensive or systematically compiled, I believe they reflect

reasonable market rates for qualified plaintiffs’ counsel in class action cases nationwide:

9 Amy Kolz, “Bankruptcy Rates Top $1,000 Mark In 2008-09.” Weblog. The Am Law Daily, 12 Dec 2000, available at http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202436371636.


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Table 7: Plaintiffs’ Class Action Attorney Billing Rates

Case Name

Plaintiff Firm

Citation

Non-Partner

Attorneys’ Fee Range

Partners’ Fee Range

In re Bear Stearns Companies, Inc. Securities, Derivative and ERISA Litig., No. 08-cv-2793 (RWS)

Berman DeValerio (S.D.N.Y.) (Aug. 2012) (Dkt. No. 302-4)

$275 - $780 $595 - $780

In re Bear Stearns Companies, Inc. Securities, Derivative and ERISA Litig., No. 08-cv-2793 (RWS)

Labaton Sucharow LLP (S.D.N.Y.) (Aug. 2012) (Dkt. No. 302-5)

$275 - $700 $725 - $975

Board of Trustees of the AFTRA Retirement Fund, et al., v. JPMorgan Chase Bank, N.A., No. 1:09-cv-00686 (SAS)(DCF)

Kessler Topaz Meltzer & Check LLP

(S.D.N.Y.) (May 2012) (Dkt. No. 187-1)

$275 - $575 $625 - $735

In re Wachovia Equity Securities Litigation, No. 08 Civ. 6171 (RJS)

Kirby McInerney LLP (S.D.N.Y.) (Apr. 2012) (Dkt. No. 106-5)

$280 - $600 $600 - $800

In re Lehman Brothers Securities and Erisa Litigation, No. 1:08-cv-05523 (LAK)(GWG)

Bernstein Litowitz & Grossman LLP

(S.D.N.Y) (Mar. 2012) (Dkt. No. 343-12)

$310 - $675 $650 - $975


Kessler Topaz Meltzer & Check LLP

(S.D.N.Y) (Mar. 2012) (Dkt. No. 343-13)

$275 - $500 $600 - $725


Labaton Sucharow (S.D.N.Y) (Mar. 2012) (Dkt. No. 343-17)

$275 - $650 $750 - $975

Rubin v. MF Global, Ltd., et al., No. 08 Civ. 2233 (VM)

Barrack Rodos & Bacine (S.D.N.Y.) (Nov. 2011) (Dkt. No. 198)

$335 - $455 $560 - $740

Rubin v. MF Global, Ltd., et al., No. 08 Civ. 2233 (VM)

Cohen Milstein Sellers & Toll PLLC

(S.D.N.Y.) (Nov. 2011) (Dkt. No. 198)

$230 - $615 $700 - $795

In re Wachovia Preferred Sec. and Bond/Notes Litigation, No. 09 Civ. 6351 (RJS)

Bernstein Litowitz Berger & Grossman LLP

(S.D.N.Y.) (Oct. 2011) (Dkt. No. 148-7)

$340 - $675 $650 - $975


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Kessler Topaz Meltzer & Check, LLP

(S.D.N.Y.) (Oct. 2011) (Dkt. No. 148-8)

$375 - $550 $600 - $725


Robbins Geller Rudman & Dowd LLP

(S.D.N.Y.) (Oct. 2011) (Dkt. No. 148-9)

$265 - $640 $565 - $775

Cornwell et al. v. Credit Suisse Group et al., No. 08 Civ. 03758 (VM)

Robbins Geller Rudman & Dowd LLP

(S.D.N.Y.) (July 2011) (Dkt. No. 117)

$360 - $670 $565 - $795

Lapin v. Goldman Sachs & Co., No. 04 Civ. 2236 (RJS)

Kirby McInerney LLP (S.D.N.Y.) (Nov. 2010) (Dkt No. 129)

$275 - $600 $600 - $900

Lapin v. Goldman Sachs & Co., No. 04 Civ. 2236 (RJS)

Glancy Binkow & Goldberg LLP

(S.D.N.Y.) (Nov. 2010) (Dkt. No. 129

$325 - $575 $625 - $725

In re MBIA, Inc., Sec. Litigation, No. 08 Civ. 0264 (KMK)

Bernstein Litowitz Berger & Grossman LLP

(S.D.N.Y.) (Dec. 2011) (Dkt. No. 92)

$375 - $675 $700 - $975

In re Refco, Inc. Securities Litigation, No. 05 Civ. 08626 (JSR)

Grant & Eisenhofer P.A. (S.D.N.Y.) (Sept. 2010) (Dkt. No. 738-5)

$250 - $620 $650 - $845

In re Merrill Lynch & Co. Inc., Securities, Derivatives and ERISA Litigation, No. 07-cv-09633 (LBS)(AJP)(DFE)

Kaplan Fox & Kilsheimer LLP

(S.D.N.Y.) (Jun. 2009) (Dkt. No. 246-4)

$255 - $500 $550 - $775

In re Merrill Lynch & Co. Inc., Securities, Derivatives and ERISA Litigation, No. 07-cv-09633(LBS)(AJP)(DFE)

Barrack, Rodos & Bacine

(S.D.N.Y.) (Jun. 2009) (Dkt. No. 246-5)

$290 - $450 $525 - $695


Berger & Montague, P.C.

(S.D.N.Y.) (Jun. 2009) (Dkt. No. 246-6)

$295 - $440 $460 - $725


Pomerantz Haudek Grossman & Gross LLP

(S.D.N.Y.) (Jun. 2009) (Dkt. No. 246-7)

$385 - $550 $525 - $830

In re Merrill Lynch & Co. Murray, Frank Sailer (S.D.N.Y.) (Jun. $350 - $550


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Inc., Securities, Derivatives and ERISA Litigation, No. 07-cv-09633(LBS)(AJP)(DFE)

LLP 2009) (Dkt. No. 246-8)

$675 - $750

In re Telik, Inc. Securities Litigation, No. 07 Civ. 04819 (CM)

Bernstein Liebhard & Lifshitz, LLP

(S.D.N.Y.) (Aug. 2008) (Dkt. No. 72)

$350 - $550 $700 - $750

Sources: Westlaw, LexisNexis

52. Based on this analysis, it is my opinion that the requested lodestar is within the

range of reason when judged in the light of lodestar fees awarded in similar cases.

Multiplier

53. I now turn to an evaluation of an appropriate risk multiplier. Using counsel’s

reported lodestar of $27,690,030.10,10 the multiplier associated with the fee request is 1.97. The

question is whether this multiplier is appropriate under the circumstances.

54. It is obvious that a multiplier is required if counsel are to have adequate incentives

to bring litigation of this sort. The question is what the multiplier should be.

55. Substantial multipliers are commonly observed in federal antitrust class actions.

See, e.g., In re Skelaxin (Metaxalone) Antitrust Litig., 2014 WL 2946459, *2 (E.D. Tenn. June

30, 2014) (awarding multiplier of between 2.1 and 2.5) (collecting cases); In re Flonase Antitrust

Litig., 951 F. Supp. 2d 739, 750 (E.D. Pa. 2013) (“multiples ranging from one to four are

frequently awarded” and support 2.99 multiplier award); In re TFT-LCD (Flat Panel) Antitrust

Litig., 2013 WL 1365900, *8 (N.D. Cal. April 3, 2013) (awarding multiplier of 2.4-2.6); In re

Prescription Drugs Antitrust Litig., 2000 WL 204112 (N.D. Ill. Feb. 10, 2000) (2.06 multiplier);

In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 489 (S.D.N.Y. 1998)

(“multipliers of between 3 and 4.5 have become common”).

10 This lodestar estimate is based on current as opposed to historical hourly rates – an appropriate means for adjusting for the substantial loss of the time value of money in this action, which has been ongoing for more than six years. See Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994).


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56. Information about class action multipliers is contained in Eisenberg and Miller’s

study of attorneys’ fees in all publicly reported class action cases from 1993 to 2008. As shown

in the following table, the mean multiplier across all federal circuits was 1.81 and the mean for

the Seventh Circuit was 1.85:

Table 8: Multipliers Awarded in Class Action Settlements, 1993-2008

Circuit Mean Multiplier Number of Cases

1st 2.10 15 2nd 1.58 97 3rd 2.01 87 4th 2.43 7 5th 2.07 15 6th 1.97 22 7th 1.85 16 8th 1.20 14 9th 1.54 50 10th 1.91 14 11th 1.19 19 D.C. 2.23 11

Federal 1.54 1 Total 1.81 368

Source: Theodore Eisenberg and Geoffrey Miller, Attorney Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 272 Table 14 (2010).

57. My update on this study for the years 2009-2013, inclusive, found that the mean

lodestar for the data set as a whole was 1.51; for the Seventh Circuit, it was 1.76:


25

Table 9: Multipliers Awarded in Class Action Settlements, 2009-2013

Circuit Mean Multiplier Number of Cases

1st 2.52 5 2nd 1.95 74 3rd 1.45 76 4th 1.40 11 5th 1.75 6 6th 1.23 14 7th 1.76 7 8th 1.56 16 9th 1.30 93 10th 1.23 8 11th 0.57 4 D.C. 2.30 2

Federal 1.04 2 Total 1.51 318

Source: Westlaw, LexisNexis, PACER

58. Empirical research discloses a significant positive relationship between multiplier

and the class recovery: multipliers get larger as settlement size increases. The relationship

between multiplier and recovery is set forth in the following table, from Eisenberg and Miller’s

study of all reported class action settlements between 1993 and 2008:11

11 Theodore Eisenberg and Geoffrey Miller, Attorneys’ Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248 (2010).


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Table 10: Multipliers Awarded in Class Action Settlements by Class Recovery, 1993-2008

Recovery ($ millions)

Mean Median Number of Cases

<=1.1 0.88 0.74 33 >1.1 <=2.8 0.95 0.77 40 >2.8 <=5.3 1.44 1.25 32 >5.3 <=8.7 1.59 1.25 34 >8.7<=14.3 1.49 1.45 37 >14.3<=22.8 1.68 1.51 38 >22.8<=38.3 1.83 1.44 33 >38.3<=69.6 1.98 1.75 38 >69.6<=175.5 2.70 2.09 43

>175.5 3.18 2.60 40

Source: Theodore Eisenberg and Geoffrey Miller, Attorney Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 274 Table 15 (2010)

For cases such as the present litigation, with recoveries in the range of $69.6 million to $175.5

million, the mean multiplier was 2.70 – well above the mean of 1.81 observed for cases generally

in this data set and also well above the 1.97 sought in the present action.

59. My follow-up study of all class action settlements in published cases from 2009 to

2013 confirms that multiplier awards rise with class recovery:


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Table 11: Multipliers Awarded in Class Action Settlements by Class Recovery, 2009-2013

Class recovery (millions)

Number of cases Mean Median

.03-.40 30 0.86 0.66

.40-.85 29 0.81 0.76

.85-1.9 29 1.38 1.21 1.9-3.0 29 1.22 1.05 3.0-5.0 29 1.34 1.00 5.0-8.5 29 1.52 1.13 8.5-16.5 29 1.78 1.66 16.5-27.5 29 1.39 1.18 27.5-88.9 29 2.29 1.79

> 88.9 29 2.51 1.50

Sources: LexisNexis, Westlaw, PACER

For cases such as the present litigation with recoveries in excess of $88.9 million, the mean

multiplier was 2.51 – again higher than the 1.97 multiplier sought in this action.

60. Eisenberg and Miller’s 2008 study also reveals that lodestar multipliers are

significantly higher in antitrust class actions than in other types of class action. As shown in the

following table, the mean multiplier in antitrust cases was 2.24 as compared with a mean of 1.81

for class actions generally:


28

Table 12: Multipliers Awarded in Class Action Settlements, 1993-2008, by Case Type

Case Category Mean Multiplier Number of Cases

Antitrust 2.24 38 Civil Rights 1.99 11 Consumer 1.82 60 Corporate 1.94 7

Employment 1.24 21 ERISA 1.58 29

Securities 1.75 177 Tort 1.83 11

Other 2.35 14 Total 1.81 368

Source: Theodore Eisenberg and Geoffrey Miller, Attorney Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 272 Table 14 (2010). 61. It is evident that the requested 1.97 multiplier here is consistent with, and in fact

below, multipliers awarded in similar cases. Accordingly, it is my opinion that judged in light of

similar cases, the fee request is appropriate when analyzed under the lodestar method.


29

CONCLUSION

Based on the empirical evidence, it is my opinion that the requested fee award of 33.3%

of the settlement fund is comfortably within the range of common outcomes, and reasonable in

light of prevailing market rates, as informed by data on fee awards in cases in this Circuit and

across the country.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge, information and belief.

Executed on this 1st day of October, 2014, at New York, New York.

Geoffrey P. Miller


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Appendix A: Resume

GEOFFREY P. MILLER

New York University Law School 40 Washington Square South Suite 411G New York, New York 10012 (212) 998-6329 (office) (212) 995-4659 (fax) [email protected]

Work Experience New York University Law School (1995-present) Stuyvesant P. Comfort Professor of Law Director, NYU Center for the Study of Central Banks and Financial Institutions (1994-present) Co-Director, Program in Corporate Compliance and Enforcement (2014-present) Co-Director, NYU Center for Law, Economics and Organization (2006-2012)Co-Founder and Co-President, Society for Empirical Legal Studies (2006-2007) Chair, Academic Personnel Committee (1999-2000; 2004-2006) Chair, Promotions and Tenure Committee (2007-2009) University of Chicago Law School (1983-1995) Kirkland & Ellis Professor (1989-1995) Editor, Journal of Legal Studies (1989-1995) Director, Program in Law and Economics (1994-1995) Director, Legal Theory Workshop (1989-1993) Associate Dean (1987-1989) Professor of Law (1987-1989) Assistant Professor of Law (1983-1987) Distinguished Visiting Scholar, Banco Central del Paraguay (2014) Visiting Lecturer, University of Frankfurt, 2013 Visiting Lecturer, Collegio Carlo Alberto, Moncalieri Italy, Spring 2011, Spring 2013, Spring 2014 Faculty Member, Study Center Gerzensee, Switzerland, Spring 2012 Visiting Lecturer, University of Genoa Department of Law, 2011 Visiting Scholar, European University Institute, Florence Italy, Fall/Winter 2010 Visiting Chair on Private Actors and Globalisation, Hague Institute for the Internationalisation

of Law, Fall/Winter 2010 Robert B. and Candace J. Haas Visiting Professor of Law, Harvard Law School, Fall 2009 Max Schmidheiny Guest Professor, University of St. Gallen, Switzerland Summer 2009


31

Faculty Member, NYU-NUS in Singapore, 2009, 2011, 2013 Fresco Endowed Professor of Law, University of Genoa, Italy, Summer 2008, Spring 2009, Summer 2010 Visiting Scholar, University of Minnesota Law School, Spring 2008 Visiting Lecturer, University of Bolzano, Italy, Summer 2007 Commerzbank Visiting Professor, Institute for Law & Finance, University of Frankfurt, Germany, Summer 2004, Summer 2005, Summer 2010 Visiting Professor, Columbia Law School, Fall 2001 Visiting Professor, University of Sydney, Australia, Summer 2002; Summer 2006; Spring 2009 Zaeslin Visiting Professor, University of Basel, Switzerland, Summer 2001, 2002, 2003, 2004, 2005, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014 Visiting Scholar, CentER for Economic Research, Tilburg, Holland, Summer 1996 John M. Olin Visiting Scholar, Cornell University Law School, Summer 1992, Spring 1996; Winter 1997, Summer 2005, Spring 2008, Spring 2009, Spring 2010 Visiting Scholar, Bank of Japan, Spring 1995 Visiting Professor, New York University Law School, Fall 1994 Consultant, Federal Reserve Bank of Chicago, 1992-1994 Visiting Scholar, New York University Law School, Fall 1993 Simpson Grierson Butler White Visiting Professor, University of Aukland, New Zealand, Summer 1993 Associate, Ennis, Friedman, Bersoff & Ewing Washington, D.C. (1982-83) Attorney Adviser, Office of Legal Counsel U.S. Department of Justice (1980-82) Clerk, Hon. Byron R. White Supreme Court of the United States (1979-80) Clerk, Hon. Carl McGowan U.S. Court of Appeals, District of Columbia (1978-79)

Corporate Service

Member of the Board of Directors, State Farm Bank (2010) – board and committee service for nontraditional federally chartered thrift institution with $15 billion in assets.

Education Columbia Law School, J.D. (1978) Editor-in-Chief, Columbia Law Review (1977-78) Princeton University, A.B. magna cum laude (1973)


32

Publications

Books The Law of Governance, Risk Management and Compliance (Wolters Kluwer Law & Business 2014) The Governance of International Banking (co-authored with Fabrizio Cafaggi, with Tiago Andreotti, Maciej Borowicz, Agnieszka Janczuk, Eugenia Macchiavello and Paolo Saguato) (Edward Elgar 2013) Ways of a King: Legal and Political Ideas in the Bible (Vandenhoeck & Ruprecht 2011) Trust, Risk, and Moral Hazard in Financial Markets (Il Mulino 2011) The Origins of the Necessary and Proper Clause (with Gary Lawson, Robert Natelson, and Guy Seidman) (Cambridge University Press 2010) The Economics of Ancient Law (editor) (Edward Elgar 2010) Bank Mergers and Acquisitions (editor, with Yakov Amihud) (Kluwer Academic Publishers 1998) La Banca Central en América Latina: Aspectos Económicos y Juridicos [Central Banks in Latin America and Their New Legal Structure] (in Spanish) (editor, with Ernesto Aguirre and Roberto Junguito Bonnet) (Tercer Mundo: Bogotá 1997) Costly Policies: State Regulation and Antitrust Exemption in Insurance Markets (AEI Press 1993) (with Jonathan R. Macey) Banking Law and Regulation, Little, Brown & Co. 1992 (with Jonathan R. Macey); Second Edition, Aspen Law & Business 1997 (with Jonathan R. Macey), Third Edition, Aspen Law & Business 2001 (with Jonathan R. Macey and Richard Scott Carnell); Fourth Edition, Aspen Law & Business 2008 (with Richard Scott Carnell and Jonathan R. Macey), under title “The Law of Banking and Financial Institutions”; Fifth Edition, Wolters Kluwer 2013 (with Richard Scott Carnell and Jonathan R. Macey), under title “The Law of Financial Institutions” Banking Law and Regulation: Statutory and Case Supplement (Little, Brown & Co. 1992; Second Edition, Aspen Law & Business, 1997) (with Jonathan R. Macey), Third Edition, Aspen Law & Business, 2000) (with Jonathan R. Macey and Richard Scott Carnell); Fourth Edition, Aspen Law & Business 2008 (with Richard Scott Carnell and Jonathan Macey); Fifth Edition, Aspen Casebook Series 2011 (with Richard Scott Carnell and Jonathan Macey).


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Banking Law and Regulation: Teacher’s Manual (1992; Second Edition 1997; Third Edition 2001, Fourth Edition 2008) (with Jonathan R. Macey and Richard Scott Carnell)

Articles

Civil Procedure A New Procedure for State Court Personal Jurisdiction (manuscript on file with the author)

An Information-Forcing Approach to the Motion to Dismiss, 5 Journal of Legal Analysis 437-465 (2014) (with Samuel Issacharoff)

In Search of the Most Adequate Forum: State Court Personal Jurisdiction, 2 Stanford Journal of Complex Litigation 1 (2014)

Group Litigation in the Enforcement of Tort Law, in Jennifer Arlen, ed., The Economics of Torts (2013)

The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, 63 Vanderbilt Law Review 107 (2010) (with Charles Silver) Will Aggregate Litigation Come to Europe?, 62 Vanderbilt Law Review 177-210 (2009) (with Samuel Issacharoff) Preliminary Judgments, 2010 University of Illinois Law Review 165 (2009) A New Look at Judicial Impact: Attorneys’ Fees in Securities Class Actions after Goldberger v. Integrated Resources, Inc., 29 Washington University Journal of Law & Policy 5-35 (2009) (with Theodore Eisenberg and Michael Perino) Punti cardine in tema di class action negli Stati Uniti e in Italia (Cutting-Edge Issues in U.S. and Italian Class Action Litigation), 2008 Analisi Giuridica dell'Economia 211-230 (2008) Compensation and Deterrence in Consumer Class Actions in the United States, in Fabrizio Cafaggi and Hans W. Micklitz, eds., New Frontiers in Consumer Protection: The Interplay Between Private and Public Enforcement 263-282 (2009) Pleading after Tellabs, 2009 Wisconsin Law Review 507-534 (2009) Mandatory Arbitration for Customers But Not For Peers, 92 Judicature 118-123 (2009) (with Theodore Eisenberg and Emily Sherwin) Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Non-Consumer Contracts, 41 University of Michigan Journal of Law Reform 871-96 (2008) (with Theodore Eisenberg and Emily Sherwin); reprinted in 7 ICFAI University Journal of Alternative Dispute Resolution (Hyderabad, India)


34

Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source, 89 Boston University Law Review 2009 (2009) (with Theodore Eisenberg) All-or-Nothing Versus Proportionate Damages, 38 Journal of Legal Studies 345-382 (2009) (with Shmuel Leshem) Judicial Review of Class Action Settlements, 1 Journal of Legal Analysis 167-205 (2008) (with Jonathan R. Macey) Do Juries Add Value? Evidence From an Empirical Study of Jury Trial Waiver Clauses in Large Corporate Contracts, 4 Journal of Empirical Legal Studies 539 (2007) (with Theodore Eisenberg) The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly-Held Companies’ Contracts, 56 DePaul Law Review 335 (2007) (with Theodore Eisenberg), reprinted in 49 Corporate Practice Commentator323 (2007) Rethinking Certification and Notice in Opt-Out Class Actions, 74 University of Missouri Kansas City Law Review 637 (2006) Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA Law Review 1303 (2006) (with Theodore Eisenberg) Review of the Merits in Class Action Certification, 33 Hofstra Law Review 51 (2004) The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 Vanderbilt Law Review 1529 (2004) (with Theodore Eisenberg) Competing Bids in Class Action Settlements, 31 Hofstra Law Review 633-650 (2003) On the Costs of Civil Justice, 80 University of Texas Law Review 2115 (2002) Class Actions in the Gulf States: Empirical Analysis of a Cultural Stereotype, 74 Tulane Law Review 681 (2000) Full Faith and Credit to Settlements in Overlapping Class Actions: A Reply to Kahan and Silberman, 73 New York University Law Review 1167-1178 (1998) Nonpecuniary Class Action Settlements, 60 Law and Contemporary Problems 97-155 (1997) (with Lori Singer) Class Actions, in I New Palgrave Dictionary of Economics and the Law 257-262 (Peter Newman, ed., Macmillan Press 1998) The Legal-Economic Analysis of Comparative Civil Procedure, 45 American Journal of Comparative Law 905-19 (1997)


35

Overlapping Class Actions, 71 New York University Law Review 514 (1996) Settlement of Litigation: A Critical Retrospective, in Larry Kramer, ed., Reforming the Civil Justice System 13-37 (NYU Press 1996) Expanding on the Fifty Percent Hypothesis: A Multimodal Approach to the Selection of Cases for Litigation, 25 Journal of Legal Studies 233 (1996) (with Daniel Kessler and Thomas Meites) A Market Approach to Tort Reform Via Rule 23, 80 Cornell Law Review 909 (1995) (with Jonathan R. Macey) Settlement Escrows, 24 Journal of Legal Studies 87 (1994) (with Robert Gertner) Introduction: Economic Analysis of Civil Procedure, 23 Journal of Legal Studies 303 (1994) Auctioning Class Action and Derivative Suits: A Rejoinder, 87 Northwestern Law Review 701 (1992) (with Jonathan R. Macey) The Plaintiffs’ Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 University of Chicago Law Review 1 (1991) (with Jonathan R. Macey), reprinted in Franklin A. Gevurtz, Corporate Law Anthology 186-194 (1997) Some Thoughts on the Equilibrium Hypothesis, 69 Boston University Law Review 561 (1989) Some Agency Problems in Settlement, 16 Journal of Legal Studies 189 (1987) An Economic Analysis of Rule 68, 15 Journal of Legal Studies 93 (1986) The Public Interest in Attorneys' Fees Awards for Public Interest Litigation, 47 Law and Contemporary Problems 233 (1984) (with Robert V. Percival), reprinted in University of Chicago Law School Record (1989) Note, Aldinger v. Howard and Pendent Jurisdiction, 77 Columbia Law Review 127 (1977)

Legal Ethics/Legal Profession The English vs. the American Rule on Attorneys Fees: An Empirical Study of Attorney Fee Clauses in Publicly-Held Companies’ Contracts (manuscript 2010) (with Theodore Eisenberg) Attorneys’ Fees and Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248 (2010) (with Theodore Eisenberg) Ethical Considerations in Class Action Practice, in Practising Law Institute, Class Action Litigation 2007: Prosecution & Defense Strategies (2007)


36

From Club to Market: The Evolving Role of Business Lawyers, 74 Fordham Law Review 1105 (2005) Bad Judges, 83 Texas Law Review 431 (2004) Attorneys’ Fees in Class Action Settlements: An Empirical Study, 1 Journal of Empirical Legal Studies 27 (2004) (with Theodore Eisenberg) Professional Independence and the Corporate Lawyer (with William T. Allen), in Jay W. Lorsch, Leslie Berlowitz, and Andy Zelleke, Restoring Trust in American Business 113-126 (American Academy of Arts and Sciences 2005) Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, 2003 University of Chicago Legal Forum 581-630 (2003) Payment of Expenses in Securities Class Actions: Ethical Dilemmas, Class Counsel, and Congressional Intent, 22 Review of Litigation 557 (2003) Ethical Considerations in Class Action Practice, in Practising Law Institute, Class Action Litigation: Prosecution & Defense Strategies (2003) Conflicts of Interest in Negotiation: An After-word and a Reply, 84 Iowa Law Review 1133-1139 (1999) (with Jonathan R. Macey) Second Opinions in Litigation, 84 Virginia Law Review 1411-1437 (1998)(with Michael Klausner and Richard Painter) Kaye, Scholer as Original Sin: The Lawyer’s Duty of Candor and the Bar’s Temptations of Evasions and Apology, 23 Law & Social Inquiry 305-313 (1998) An Economic Analysis of Conflict of Interest Regulation, 82 Iowa Law Review 965-1005 (1997) (with Jonathan R. Macey), republished in Foundations of the Law and Ethics of Lawyering, George Meredith Cohen and Susan P Koniak, editors. New York: Foundation Press (2004) Reflections on Professional Responsibility in a Regulatory State, 63 George Washington Law Review 1105 (1995) (with Jonathan R. Macey) Government Lawyers' Ethics in a System of Checks and Balances, 54 University of Chicago Law Review 1293 (1987)

Corporate, Contract and Securities Law Damages versus Specific Performance: Lessons from Commercial Contracts, __ Journal of Empirical Legal Studies __ (forthcoming 2014) (with Theodore Eisenberg)


37

A Modest Proposal for Fixing Delaware’s Broken Duty of Care, 2010 Columbia Business Law Review 319 (2010) Un-manifested Harm in Business-to-Business Cases, 167 Journal of Theoretical and Institutional Economics 80-93 (2011) Process as Currency with the Courts: Judicial Scrutiny of Directors’ Decisions, 1 International Journal of Corporate Governance 337-365 (2010) (with Jonathan R. Macey) A Simple Theory of Takeover Regulation in the United States and Europe, 42 Cornell International Law Journal 301 (2009) (with Guido Ferrarini), reprinted in 55 Rivista Delle Societá 680 (2010) Bargains Bicoastal: New Light on Contract Theory, 31 Cardozo Law Review 1475 (2010) Flight to New York: an Empirical Analysis of Choice of Law and Forum Selection Clauses in Large Commercial Contracts, 30 Cardozo Law Review 1475 (2009) (with Theodore Eisenberg) The Market for Contracts, 30 Cardozo Law Review 2073 (2009) (with Theodore Eisenberg) Ex Ante Choices of Law and Forum: An Empirical Analysis of Corporate Merger Agreements, 59 Vanderbilt Law Review 1975 (2006) (with Theodore Eisenberg) Catastrophic Failures: Enron and Beyond, 89 Cornell Law Review 423-455 (2004) Capital Markets on the Internet: An Introduction, 5 New York University Journal of Legislation and Public Policy 1 (2001-2002) Das Kapital: Solvency Regulation of the American Business Enterprise, in Eric Posner, ed., Chicago Lectures in Law and Economics 65-81 (2000) Takeovers: English and American, 6 European Financial Management 533-542 (2000) Choice of Law as a Pre-Commitment Device, in F.H. Buckley, ed., The Fall and Rise of Freedom of Contract 357-69 (Duke University Press 1998) On the Advantages of Defined Contribution Plans, in Samuel Estreicher, ed., Proceedings of the 50th Annual Conference on Labor (Kluwer Academic Press, forthcoming 1998) Political Structure and Corporate Governance: Some Points of Contrast Between the U.S. and the U.K., 1998 Columbia Business Law Review 51-78 (1998), reprinted in Sloan Project on Corporate Governance at Columbia Law School, Corporate Governance Today 629-648 (1998) Finance and the Firm, 152 Journal of Institutional and Theoretical Economics [Zeitschrift fur die Gesamte Staatswissenschaft] 89-107 (1996)


38

Corporate Governance and Commercial Banking: A Comparative Examination of Germany, Japan and the United States, 48 Stanford Law Review 73 (1995) (with Jonathan R. Macey) Comment on "Brokerage, Market Fragmentation, and Securities Market Regulation," in Andrew W. Lo, ed., The Industrial Organization and Regulation of the Securities Industry, University of Chicago Press (1996) Corporate Stakeholders: A Contractual Perspective, 43 University of Toronto Law Review 401 (1993) (with Jonathan R. Macey) The Culture of Capital: Comments on Conley and O'Barr, 71 North Carolina Law Review 201 (1992) The Economic Efficiency of Close Corporation Law: A Comment, 70 Washington University Law Quarterly 399 (1992) Lessons from Financial Economics: Materiality, Reliance, and the Utility of Empirical Methodology in Extending the Reach of Basic v. Levinson, 77 Virginia Law Review 1015 (1991) (with Jonathan R. Macey, Jeffrey Netter, and Mark Mitchell) The Fraud on the Market System Revisited, 77 Virginia Law Review 999 (1991) (with Jonathan R. Macey) Politics, Bureaucracies, and Financial Markets: Bank Entry into Commercial Paper Underwriting in the United States and Japan, 139 University of Pennsylvania Law Review 369-453 (1990) (with David Litt, Jonathan R. Macey, and Edward L. Rubin) Good Finance, Bad Economics: An Analysis of the Fraud on the Market Theory, 42 Stanford Law Review 1059 (1990) (with Jonathan R. Macey) Trans-Union Reconsidered, 98 Yale Law Journal 127 (1988)(with Jonathan R. Macey) Toward an Interest Group Theory of Delaware Corporate Law, 65 Texas Law Review 469 (1987) (with Jonathan R. Macey)

Constitutional Law Confederacy, in The Encyclopedia of Political Thought (Wiley-Blackwell) (forthcoming) The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law and Contemporary Problems 35 (1993) The Unitary Executive in a Unified Theory of Constitutional Law: The Problem of Interpretation, 15 Cardozo Law Review 201 (1993)


39

Liberty and Constitutional Architecture: The Rights-Structure Paradigm, 16 Harvard Journal of Law & Public Policy 87 (1993) Rights and Structure in Constitutional Theory, 8 Social Philosophy & Policy 196 (1991), reprinted in E. Frankel Paul, ed., Reassessing Civil Rights (1991) The Appropriations Power and the Necessary and Proper Clause, 68 Washington University Law Quarterly 640 (1990) (panel) From Compromise to Confrontation: Separation of Powers in the Reagan Era, 57 George Washington Law Review 401 (1989) Rediscovering Economic Liberties, 41 Rutgers Law Review 773 (1989) (panel) War Powers and the Constitution: A Middle Ground, 43 University of Miami Law Review 35 (1988) (panel) The Debate Over Independent Agencies in Light of the Empirical Evidence, 1988 Duke Law Journal 215 (1988) Independent Agencies, 1986 Supreme Court Review 41 (1986)

Financial Institutions Intellectual Hazard and the Design of Financial Stability Regulation, in University of St. Gallen Series in Law and Economics, Peter Nobel, ed. (Zurich: Schulthess, 2010) (with Gerald Rosenfeld) Intellectual Hazard: How Conceptual Biases in Complex Organizations Contributed to the Crisis of 2008, 33 Harvard Journal of Law & Public Policy 807 (2010) (with Gerald Rosenfeld) Helping Law Catch Up to Markets: Applying Broker-Dealer Law to Subprime Mortgages, 34 Journal of Corporation Law 789 (2009) (with Jonathan Macey, Maureen O’Hara and Gabriel D. Rosenberg) The Basel Committee, Global Administrative Law, and the Developing World, in Benedict Kingsbury and Richard Stewart, eds, India, the South and the Shaping of Global Administrative Law (forthcoming, Oxford University Press India 2008) (with Michael Barr) Comment: Credit Risk Transfer, Hedge Funds, and the Supply of Liquidity, in Peter Nobel and Marina Gets, eds., Law and Economics of Risk in Finance, University of St. Gallen Series in Law and Economics 73 (2008) Global Administrative Law – The View from Basel, 17 European Journal of International Law 15 (2006) (with Michael Barr)


40

Three Myths about Central Banks, Federal Reserve Bank of Cleveland Economic Commentary (November 2002) Central Bank Independence in Ordinary and Extraordinary Times, in Jan Kleiniman, ed., Central Bank Independence: the Economic Foundations, the Constitutional Implications, and Democratic Accountability (Kluwer Academic Press 2000) 31-51 (with Rosa Lastra) External Review of Central Bank Decisions, in 1 International Monetary Fund, Current Developments in Monetary and Financial Law 535-51 (1999) Bank Mergers and American Bank Competitiveness, in Yakov Amihud & Geoffrey Miller, eds., Bank Mergers and Acquisitions 175-190 (Kluwer Academic Publishers, 1998) (with Jonathan R. Macey) Introduction: Bank Mergers and Acquisitions, in Yakov Amihud & Geoffrey Miller, eds., Bank Mergers and Acquisitions vii-xiii (Kluwer Academic Publishers, 1998) Deposit Insurance for Economies in Transition, in Kluwers Yearbook of International and Financial Law 103-138 (1997) and R. Lastra and H. Schiffman, eds., Bank Failures and Bank Insolvency Law in Economies in Transition 37-70 (Kluwers Academic Press 1998) Central Bank Independence, Liberalization and Inflation in Transition Economies: An International Perspective, 49 Journal of Monetary Economics 237 (2002) (with Alex Cukierman and Bilin Neyapti) An Interest-Group Theory of Central Bank Independence, 27 Journal of Legal Studies 433-453 (June 1998) On the Obsolescence of Commercial Banking, 154 Journal of Institutional and Theoretical Economics [Zeitschrift fur die gesamte Staatswissenschaft] 61-73 (1998) Banking Crises in Perspective: Two Causes and One Cure, in Gerard Caprio, Jr, William C. Hunter, George G. Kaufman, and Danny M. Leipziger, eds., Preventing Banking Crises: Lessons from Recent Global Bank Failures 279-287 (Federal Reserve Bank of Chicago, 1998) Universal Banks are Not the Answer to America’s Corporate Governance “Problem”: A Look at Germany, Japan, and the U.S., 9 Journal of Applied Corporate Finance 57-73 (1997)(with Jonathan R. Macey), republished in The Revolution in Corporate Finance, Joel M Stern and David H. Chew, editors, Marlden, MA: Blackwell (2003) Cooperation, Conflict, and Convergence in Japanese Finance: Evidence from the “Jusen” Problem, 29 Law and Policy in International Business 1-78 (1998)(pre-published as Washington University School of Law, Working Paper No. 97-3-1) (with Curtis Milhaupt)


41

Nihon no kin’yu ni okeru jusenmondai hoteki bunsekito keizaiteki bunseki [The Jusen Problem in Japanese Finance: A Legal and Economic Analysis], 1132 Jurisuto 140-49; 1134 Jurisuto 86-92; 1136 Jurisuto 83-89 (1998) (with Curtis Milhaupt) (in Japanese) A Regulatory Cartel Model of Decisionmaking in Japanese Finance, 4 Zeitschrift fur Japanisches Recht 18-29 (1997)(with Curtis Milhaupt) Banco de Fondos Mutuos Para América Latina? [Mutual Fund Banking for Latin America?], in La Banca Central en América Latina: Aspectos Económicos y Juridicos [Central Banks in Latin America and Their New Legal Structure], Ernesto Aguirre, Roberto Junguito Bonnet, and Geoffrey Miller, eds. 272-280 (1997) (in Spanish) The Role of a Central Bank in A Bubble Economy, 18 Cardozo Law Review 1053 (1996) Decisionmaking at the Bank of Japan, 28 Law and Policy in International Business 1 (1996) Is Deposit Insurance Inevitable? Lessons From Argentina, 16 International Review of Law and Economics 211 (1996), reprinted in Jagdeep Bandhari and Alan Sykes, eds., Economic Dimensions in International Law: Comparative and Empirical Perspectives 392-404 (Cambridge University Press, 1998) El Papel del Banco Central en una Economia Especulativa [The Role of a Central Bank in a Speculative Economy], in Miguel Mancera Aguayo, ed., El Banco de México en la Reconstrucción Económica Nacional 137 (Centro Cultural Manuel Gómez Morin, A.C., 1996) Comments on Rajan and James, in A. Saunders & I. Walter, eds., Universal Banking: Financial System Design Reconsidered 330-333 (Irwin & Co. 1996) Deposit Insurance, the Regulatory Contract, and the Mismatch in the Term Structure of Banks' Assets and Liabilities, 12 Yale Journal on Regulation 1-50 (1995)(with Jonathan R. Macey), reprinted as L’Assurance Des Depots, Le Contrat Reglementaire Implicite, et la Destruction des Eschances des Actifs et Passifs Bancaires, 6 Journal des Economistes et des Etudes Humaines 531 (1995) Double Liability of Bank Shareholders: A Look at the New Data, 28 Wake Forest Law Review 933 (1993) (with Jonathan R. Macey) Politics of Deposit Insurance Reform: The Case of Argentina, Federal Reserve Bank of Chicago, Proceedings of a Conference on Bank Structure and Competition 473 (1993) and 1 University of Chicago Law School Roundtable 129 (1994), republished as "Políticas de Reforma de Seguro de Depósito. El Caso de la Argentina," in Revista de Derecho Bancario y de la Actividad Financiera, Año 4, Enero-diciembre 1994, No. 19/24, at 221-239 (1995) (Argentine journal) Comment on Universal Banks and Financial Stability, 19 Brooklyn International Law Journal 197 (1993)


42

Kaye, Scholar, FIRREA and the Desirability of Early Closure: A View of the Kaye, Scholar Case from the Perspective of Bank Regulatory Policy, 66 University of Southern California Law Review 1115 (1993) (with Jonathan R. Macey) Constitutional Moments, Pre-commitment, and Fundamental Reform: The Case of Argentina, 71 Washington University Law Quarterly 1061 (1993) Legal Restrictions on Bank Consolidation: An Economic Analysis, 77 Iowa Law Review 1083 (1992) The Community Reinvestment Act: An Economic Analysis, 79 Virginia Law Review 291 (1993) (with Jonathan R. Macey) Drunken Sailors on a Sinking Ship? The Rehnquist Court and the Bank Failure Problem, 1993 Public Interest Law Review 83 (1993) Comments on Calomiris, in M. Klausner & L. White, eds., Structural Change in Banking 212 (1993) The McCarran-Ferguson Act: A Case Study of Regulatory Federalism, 68 New York University Law Review 13 (1993), republished in 7 National Insurance Law Review 521 (1995)(with Jonathan R. Macey)(study prepared originally under the auspices of the American Enterprise Institute’s Project on Federalism) Bank Failure: The Politicization of a Social Problem, 45 Stanford Law Review 289 (1992) (with Jonathan R. Macey) Toward Enhanced Consumer Choice in Banking: Uninsured Depository Facilities as Financial Intermediaries for the 1990s, 1991 N.Y.U. Annual Survey of American Law 865 (1992) (with Jonathan R. Macey) Nondeposit Deposits and the Future of Bank Regulation, 91 Michigan Law Review 237-273(1992) (with Jonathan R. Macey) America's Banking System: The Origins and Future of the Current Crisis, 69 Washington University Law Quarterly 769 (1991) (with Jonathan R. Macey) Bank Failures, Risk Monitoring, and the Market for Corporate Control (with Jonathan R. Macey), 88 Columbia Law Review 1153 (1988) (study conducted under the auspices of the Administrative Conference of the United States) The Future of the Dual Banking System, 53 Brooklyn Law Review 1 (1987) Public Policy Implications of Legislation Limiting the Growth of Interstate Banks, Federal Reserve Bank of Chicago, Proceedings of a Conference on Bank Structure and Competition 602 (1986)


43

Interstate Branching and the Constitution, 41 Business Lawyer 337 (1986) Interstate Banking in the Court, 1985 Supreme Court Review 179 (1985)

Legal History The Corporate Law Origins of the Necessary and Proper Clause, 79 George Washington University Law Review 1 (2010) Meinhard v. Salmon, in Jonathan R. Macey, ed., Corporate Law Stories (2008) The Industrial Organization of Political Production: A Case Study, 149 Journal of Institutional and Theoretical Economics [Zeitschrift fur die gesamte Staatswissenschaft] 769 (1993) Comments on Priest, 36 Journal of Law and Economics 325 (1993) Toward "Neutral Principles" in the Law: Selections from the Oral History of Herbert Wechsler, 93 Columbia Law Review 854 (1993) (with Norman Silber) Double Liability of Bank Shareholders: History and Implications, 27 Wake Forest Law Review 31 (1992) (with Jonathan R. Macey) Origin of the Blue Sky Laws, 70 Texas Law Review 347 (1991) (with Jonathan R. Macey), reprinted in 34 Corporate Practice Commentator 223 (1992) Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine, 77 California Law Review 83 (1989) The True Story of Carolene Products, 1987 Supreme Court Review 397 (1987), reprinted in Michael J. Glennon, et al., eds., Constitutional Law Anthology (Anderson Publishing 1997), pp. 94-103; reprinted in J. Ely, Property Rights in American History: Reform and Regulation of Property Rights (Garland Publishing 1997), pp. 165-197. Interviewer, Columbia University Oral History Collection, Life of Herbert Wechsler (1980-1982) (with Norman Silber)

Jurisprudence The Case of the Speluncean Explorers: Contemporary Proceedings, 61 George Washington Law Review 1798 (1993) The End of History and the New World Order: The Triumph of Capitalism and the Competition Between Liberalism and Democracy, 25 Cornell International Law Journal 277 (1992) (with Jonathan R. Macey)


44

The Canons of Statutory Construction and Judicial Preferences, 45 Vanderbilt Law Review 647 (1992) (with Jonathan R. Macey) Pragmatics and the Maxims of Interpretation, 1990 Wisconsin Law Review 1179 (1990) Economic Efficiency and the Lockean Proviso, 10 Harvard Journal of Law and Public Policy 401 (1987)

Ancient Law Taxation, in Oxford Encyclopedia of the Bible and Law (Oxford University Press) (forthcoming) Logos and Narrative, NYU School of Law, Public Law Research Paper No. 10-78 (2010) Monarchy in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-76 (2010) Nationhood and Law in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-57 (2010) Revelation and Legitimacy in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-52 (2010) The Book of Judges: The Hebrew Bible’s Federalist Papers, NYU School of Law, Public Law Research Paper No. 10-66 (2010) Consent of the Governed in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-56 (2010) Nomadism, Dependency, Slavery and Nationhood: Comparative Politics in the Book of Exodus, NYU School of Law, Public Law Research Paper No. 10-49 (2010) Economics of Ancient Law, in Geoffrey P. Miller, ed., The Economics of Ancient Law (Edward Elgar, forthcoming 2010) Patriarchy: The Political Theory of Family Authority in the Book of Genesis (manuscript 2010) The Dark Age: How the Biblical Narratives Demonstrate the Necessity for Law and Government (NYU School of Law, Public Law Research Paper No. 10-18) Origin of Obligation: Genesis 2:4b-3:24 (NYU School of Law, Public Law Research Paper No. 09-60) Sovereignty and Conquest in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-61 (2010)


45

Golden Calves, Stone Tablets, and Fundamental Law: A Political Interpretation of Exodus 32 (NYU School of Law, Public Law Research Paper No. 10-02) A Riposte Form in the Song of Deborah, in Tikva Frymer-Kensky, Bernard Levinson and Victor Matthews, eds., Gender and Law in the Hebrew Bible and the Ancient Near East 113-27 (1998) Foreword: The Development of Ancient Near Eastern Law, 70 Chicago-Kent Law Review 1623 (1996) Why Ancient Law?, 70 Chicago-Kent Law Review 1465 (1995)(with James Lindgrin and Laurent Mayali) Foreword: Land Law in Ancient Times, 71 Chicago-Kent Law Review 233 (1996) The Song of Deborah: A Legal-Economic Analysis, 144 University of Pennsylvania Law Review 2293 (1996) The Legal-Economic Approach to Biblical Interpretation, 150 Journal of Institutional and Theoretical Economics [Zeitschrift fur die gesamte Staatswissenschaft] 755 (1994) J as Constitutionalist: A Legal-Economic Interpretation of Exodus 17:8-16 and Related Texts, 70 Chicago-Kent Law Review 1829 (1995) Verbal Feud in the Hebrew Bible: Judges 3:12-30 and 19-21, 55 Journal of Near Eastern Studies 105 (1995) Contracts of Genesis, 22 Journal of Legal Studies 15-45 (1993) Ritual and Regulation: A Legal-Economic Analysis of Selected Biblical Texts, 22 Journal of Legal Studies 477 (1993)

Law and Society Parental Bonding and the Design of Child Support Obligations, in William S. Comanor, ed., The Law and Economics of Child Support Payments 210-240 (Edward Elgar 2004) The Legal Function of Ritual, 80 Chicago-Kent Law Review 1181 (2005) Handicapped Parking, 29 Hofstra Law Review 81 (2000) (with Lori S. Singer) Custody and Couvade: The Importance of Paternal Bonding in the Law of Family Relations, 33 Indiana Law Review 691 (2000) Norm Enforcement in the Public Sphere: The Case of Handicapped Parking, 71 George Washington Law Review 895-933 (2004)


46

Norms and Interests, 32 Hofstra Law Review 637 (2003) Circumcision: A Legal-Cultural Analysis, 9 Virginia Journal of Social Policy and the Law 498-585 (2002), pre-published as New York University Public Law and Legal Theory Working Paper Series, Working Paper 5 (2000) Law, Pollution, and the Management of Social Anxiety, 7 Michigan Women’s Law Journal 221-289 (2001)

Other: Richard Posner, 61 N.Y.U. Annual Survey of American Law 13 (2004) Introduction: The Law and Economics of Risk, 19 Journal of Legal Studies 531 (1990) (with Richard A. Epstein) Law School Curriculum: A Reply to Kennedy, 14 Seton Hall Law Review 1077 (1984) (under pen name of Chris Langdell)

Book Reviews Defusing the Banks’ Financial Time Bomb, BusinessWeek (Mar. 11, 2010) (review of Robert Pozen, Too Big to Save? How to Fix the U.S. Financial System Love & Joy: Law, Language and Religion in Ancient Israel, by Yochanan Muffs, 58 Journal of Near Eastern Studies 144-45 (1999) Jesus and the Jews: The Pharisaic Tradition in John; The Trial Of Jesus; Jesus And The Law, by Alan Watson, 1 Edinburgh Law Review 273 (1997) No Contest: Corporate Lawyers and the Perversion of Justice in America, by Ralph Nader and Wesley J. Smith, Washington Post (October 13, 1996) The Rise and Fall of the Classical Corporation: Hovenkamp's Enterprise and American Law: 1836-1937, 59 University of Chicago Law Review 1677 (1993) Property Rights and the Constitution: A Review of James W. Ely, Jr.'s The Guardian of Every Other Right, 37 American Journal of Legal History 378 (1993) Anatomy of A Disaster: Why Bank Regulation Failed, 86 Northwestern University Law Review 742 (1992) The Glittering Eye of Law, 84 Michigan Law Review 1901 (1986) A Rhetoric of Law, 52 University of Chicago Law Review 247 (1985)


47

Major Lectures Trust, Risk, and Moral Hazard in Financial Markets (University of Genoa, Fresco Chair Lectures in Law and Finance, June 2010) A Simple Theory of Takeover Regulation in the United States and Europe; Intellectual Hazard (Commerzebank Lectures, University of Frankfurt, May 2010) The European Union’s Takeover Directive and Its Implementation in Italy (University of Rome III, 2008) Catastrophic Financial Failures: Enron, HIH and More (Ross Parsons Lecture, Sydney, Australia, 2002) Das Kapital: Solvency Regulation of the American Business Enterprise (Coase Lecture, University of Chicago Law School, 1993) Banking in the Theory of Finance; The Simple Economics of Litigation and Settlement; The Economic Structure of Corporation Law (University of Auckland, New Zealand, 1993)

Journal Referee Reports American Law and Economics Review Journal of Legal Studies Journal of Law, Economics and Organization Review of Law and Economics

Conferences Organized Regulating Risk Taking in a Post-Crisis Environment (4th Annual Law & Banking/Finance Conference (New York, New York, May 16-17, 2014) (co-organizer with Prof. Gerard Hertig, ETH Zurich) Fifth Annual NYU Global Economic Policy Forum (New York, New York, November 12, 2012) (co-organizer) Assessing Ongoing Financial Reforms (3rd Annual Law & Banking/Finance Conference (Zurich, Switzerland, June 7-8, 2013) (co-organizer with Prof. Gerard Hertig, ETH Zurich) Tackling Systemic Risk: 2nd Annual Law & Banking/Finance Conference (Zurich, Switzerland, April 20-21 2012) (co-organizer with Prof. Gerard Hertig, ETH Zurich) Judicial Dialogue on Mass Litigation, Florence Italy, October 15-16, 2010 (co-organizer of conference co-sponsored by NYU Law School, the American Law Institute, and the European University Institute)


48

Banking and Finance: 1st Annual Law and Banking/Finance Conference (Florence, Italy, April 15-16, 2011) (co-organizer with Prof. Gerard Hertig, ETH Zurich) Finlawmetrics 2010: Central Banking, Regulation & Supervision after the Financial Crisis (co-sponsor and member of steering committee) Finlawmetrics 2009: After The Big Bang: Reshaping Central Banking, Regulation and Supervision (Milan, Italy, Spring 2009) (co-sponsor and member of steering committee) NYU Global Economic Policy Forum 2009: The Future of Regulation and Capital Markets (November 5, 2009) (co-organized with Professor Alan Rechtschaffen and with the NYU Law School Alumni Association) Third Annual Conference on Empirical Legal Studies (Cornell University, Ithaca, New York, Fall 2008) (co-organizer) NYU Global Economic Policy Forum (April 14, 2007). Major conference on economic policy. Keynote address by Jean Claude Trichet, President of the European Central Bank; presentations by Tevi Troy, Deputy Secretary of the Department of Health and Human Services; Kevin Warsh, Member of the Board of Governors of the Federal Reserve System; and Donald B. Marron, Jr., Senior Economic Advisor, President’s Council of Economic Advisors. Co-organized with Professor Alan Rechtschaffen. Second Annual Conference on Empirical Legal Studies (New York, New York, November 10-11, 2007). Major conference (425 participants) exploring all aspects of the empirical study of law. Co-organized with Jennifer Arlen, Bernard Black, Theodore Eisenberg and Michael Heise. NYU Global Economic Policy Forum (April 11, 2007). Major conference on economic policy. Keynote address by Ben S. Bernanke, Chairman of the Board of Governors of the Federal Reserve System; presentations by Stanley Druckenmiller, Founder of Dusquesne Capital, Tevi Troy, Domestic Policy Advisor for President George W. Bush, and Jeffrey Rosen, Vice Chair of Lazard. Co-organized with Professor Alan Rechtschaffen. First Annual Conference on Empirical Legal Studies (Austin, Texas, October 2006). Major conference exploring all aspects of the empirical study of law. Co-organized with Jennifer Arlen, Bernard Black, Theodore Eisenberg and Michael Heise. Conference on Legal Aspects of the International Activities of Central Banks, Lima Peru, October 1997. This conference, co-sponsored by the central bank of Peru, brought together leaders in the legal and economic issues facing central banks in the management of their external reserves. Conference on the Governance of Institutional Investors (New York, New York, February 14, 1997). This conference, sponsored by the NYU Stern School of Business Salomon Center in association with the New York University Law School Center for the Study of Central Banks, brought together top executives, attorneys, scholars and others interested in the management and


49

organization, both economic and legal, of the nation's large institutional investors, including its mutual fund industry. Conference on Bank Mergers and Acquisitions (New York, New York, October 11, 1996). This conference, sponsored by the NYU Stern School of Business Salomon Center in association with the New York University Law School's Center for the Study of Central Banks, brought together leading academics, lawyers, and investment bankers to discuss some of the broader implications of bank mergers and acquisitions. Co-organizer of this conference was Professor Yakov Amihud of the Stern School's Finance Department. Conference in Central Banks in Latin America (Bogota, Colombia, February, 1996). This conference, co-sponsored by the central bank of Colombia with technical assistance from the Legal Affairs Department of the International Monetary Fund, brought together leaders of Latin American central banks, the international financial community, and scholars from a variety of disciplines, to discuss issues related to the independence of central banks and economic development. Conference on Central Banks in Asia (Shanghai, China, October, 1995). This conference, co-sponsored with KPMG-Peat Marwick, brought together leaders from commercial banks, investment banks, and industrial firms, as well as central bankers, to discuss Asian central banks to address issues such as the proposed law granting a degree of independence to the central bank of China. Conference on Ancient Law (Berkeley, California, March 1995). This conference, organized with Professors James Lindgren of Chicago-Kent Law School and Laurent Mayali of the University of California at Berkeley Law School, brought together important figures from a variety of disciplines interested in Ancient Law. Conference on Central Banks in Eastern Europe and the Newly Independent States (Chicago, Illinois, April 1994). This conference brought together the Prime Minister of Estonia, three present or former Ministers of Finance of Eastern European states (including Boris Fyoderov, former Finance Minister of the Russian Republic), the heads of the central banks of eleven nations in Eastern Europe and the Newly Independent States, together with a wide variety of highly-placed officials from these countries and from the west, to discuss issues related to the independence of central banks and economic development.

Professional Memberships and Positions New York State Bar District of Columbia Bar American Bar Association American Law Institute (1988-1996) Member, Paolo Baffi Centre Scientific Advisory Board, Milan, Italy (2008- present) Member, International Academic Council, University of St. Gallen, Switzerland (2004-present) Chairman, Section on Business Associations, American Association of Law


50

Schools (1995) Member of the Board of Directors, American Law and Economics Association (1995-1998) Member of the Foreign Advisory Committee, Latin American Law and Economics Association (1995-2000) Member of the Foreign Advisory Board, Universitad Tocurato Di Tella School of Law, Buenos Aires, Argentina (1992-1999) Member of the Editorial Board, Supreme Court Economic Review Member of the Editorial Board, The Independent Review Member of the Advisory Board, Yearbook of International Financial and Economic Law Member of the Advisory Board, University of Hong Kong Faculty of Law Asian Institute of International Financial Law (2001-present) Member of the Advisory Board, LSN Comparative Law Abstracts

Courses The Law and Business of Bitcoin (2014) Compliance and Risk Management for Attorneys (2014, 2015 scheduled) Reading Class: Cutting Edge Issues in Banking and Finance (2014-2015) Legal Profession (1985-93; 1996-98; 2003-2007; 2013 The Crisis of 2008 (2009, 2010) Reading Class: Restructuring Finance (2009) Property (1986-87) Corporations (1985-88; 1991-93; 1997-2000; 2005; 2008; 2012, 2014) Seminar on Separation of Powers (1985, 1987) Civil Procedure (1983-84; 2004-2005; 2011) Federal Regulation of Banking (1983, 1989-93; 1995-97; 2003, 2006-2010; 2012, 2015 scheduled) Law and Business of Banking (2012; with Gerald Rosenfeld) Land Development (1984-85) Securities Law (1990-91) Workshop in Legal Theory (1989-91) Seminar on Financial Institutions (1992-93 (with Merton Miller); 1996-97) Ethics in Class Action Practice (Continuing Legal Education Seminar 2002-2005) Law and Economics (University of Basel, Switzerland 2005, 2007, 2008; 2009; 2010; 2011; 2012) Advanced Seminar on Law and Economics (University of Genoa, Italy 2008) Banking and the Financial Crisis (University of Genoa, Italy 2009) Trust, Risk, and Moral Hazard in Financial Markets (University of Genoa, Italy, 2010) International Banking (University of Sydney, Australia, 2002, 2006) Introduction to Banking Law (University of Basel, Switzerland 2001, 2002, 2003, 2004, 2009, 2010; 2011; 2012 Banking in the Theory of Finance (University of Frankfurt, Germany 2004, 2005) Banking Regulation in Crisis (University of Frankfurt, Germany, 2010) Banking: Law and Economics Issues after the Financial Crisis (Study Center Gerzensee, 2012)


51

Litigation and Alternative Dispute Resolution

Brief and Reply Brief for Plaintiff-Appellant, Glancy v. Taubman Centers, Inc. No. 03-

1609 (6th Cir. 2003). Amicus Brief for American Bankers Association, et al., In Re: Visa Check/Mastermoney

Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001) (of counsel) Briefed and argued Moran v. Household Finance Corp. (the "Poison Pill" case) in the

Supreme Court of Delaware (1985)

Briefed cases in the U.S. Supreme Court, U.S. Court of Appeals, U.S. District Courts, and state trial and appellate courts. Conducted depositions and other pretrial discovery. (1982-1983)

Briefed and argued Hodges v. Metts, 676 F.2d 1133 (6th Cir. 1982), on behalf of the United States.

Conducted trial of American Psychological Association v. Birch Tree Press, et al. (U.S. District Court, Washington, D.C. 1983).

Deposit Insurance for Thailand. Prepared a draft deposit insurance law for Thailand, at the request of the International Monetary Fund (1999)

Schatz v. Blanchard. Neutral arbitrator in a commercial arbitration (2000)

Expert Witness Testimony (past five years)

EM Ltd. and NML Capital, Ltd. v. The Republic of Argentina and Banco de La Nación Argentina, No. 08 Civ 7974 (TPG), United States District Court for the Southern District of New York (declaration and responsive declaration on whether a state-owned financial institution is an alter-ego of the government) (2009); second supplemental declaration (2010)

Tucker v. Scrushy, et al., Nos. CIV-02-5212, CV 03-3522, CV 03-2023, CV 03-2420,

CV 98-6592, Circuit Court of Jefferson County, Alabama, 2008 (affidavit on fees) (2009) In Re: 2007 Wildfire Class Litigation, Master Case No. 2008-00093086, Superior Court

of California, County of San Diego (2009) (affidavit and deposition on certification) In re: Columbia Hospital for Women Medical Center, Inc., Case No. 09-00010 (Teel, J.),

United States Bankruptcy Court for the District of Columbia (declaration on fees) (2009) In re Vioxx Products Liability Litigation, Civil Action No. 2:05-MD-01657-EEF-DEK,

United States District Court, Eastern District of Louisiana (affidavit on fee-capping order) (2009)


52

State of Missouri v. SBC Communications, Inc., No. No. 044-02645, Circuit Court of the City of St. Louis, Missouri (2009) (affidavit on fees) Alexander v. Nationwide Mutual Insurance Co., No. CV-2009-120-3, Circuit Court of Miller County, Arkansas (2009) (affidavit on fees) Peterman v. North American Company for Life and Health Insurance, Case No. BC357194, Superior Court of the State of California, County of Los Angeles (2009) (declaration on fees) Holman v. Student Loan Xpress, Inc., Case No. 8:08-cv-00305-SDM-MAP (Middle District of Florida, Tampa Division) (2009) (declaration on fees) Board of Trustees of the AFTRA Retirement Fund v. JPMorgan Chase, No. 09-00686 (Southern District of New York) (2010) (declaration on class certification) Polion v. Wal-Mart Stores, Inc., No. 01-03645 (Superior Court of Massachusetts, Commonwealth of Massachusetts) (2010) (declaration on fees; supplemental declaration on fees and motion to strike counsel) In re MoneyGram International, Inc. Securities Litigation, No. 08-883 (DSD/JJG), United States District Court, District of Minnesota (2010) (declaration on fees) Board of Trustees of the AFTRA Retirement Fund v. JPMorgan Chase Bank, N.A., No. 09-cv-00686 (SAS) (DF), United States District Court for the Southern District of New York (2010) (declaration and deposition on certification) Coffey v. Freeport-McMoran Copper & Gold, Inc., No. CJ-2008-68, District Court of Kay County, State of Oklahoma (2010) (affidavit on certification) In Re Puerto Rican Cabotage Antitrust Litigation MDL Docket No. 3:08-md-1960 (DRD), United States District Court for the District of Puerto Rico (2010) (declaration on fees) In re XTO Energy Shareholder Class Action Litigation, No. 352-242403-09, District Court of Tarrant County, Texas, 352nd Judicial District (2010) (affidavit on fees) The Board of Trustees of the Southern California IBEW-NECA Defined Contribution Plan v. Bank of New York Mellon, Civil Action No. 09-Cv-06273, Southern District of New York (2011) (declaration on certification) Iorio v. Asset Marketing Systems, Inc., Case No.: 05-CV-0633-JLS (CAB), Southern District of California (2011) (declaration in fees) Villaflor v. Equifax Information Services, LLC, Case No.: 3:09-cv-00329-MMC, Northern District of California (2011) (declaration on fees)


53

Feely v. Allstate Insurance Company, Case No. CV-2004-294-3A, Circuit Court of Miller County, Arkansas (2011) (affidavit on settlement and fees) Keegan v. American Honda Motor Co., Inc., Case Number: 2:10-cv-09508-MMM-AJW, United States District Court for the Central District of California (2011) (declaration on certification) Compusource Oklahoma v. BNY Mellon, N.A., Case No: CIV 08-469-KEW, United States District Court for the Eastern District of Oklahoma (2011) (declaration on certification) ABN Amro Bank v. Dinallo, Index No.: 601846/09 (New York State Supreme Court) (declaration and deposition on corporate restructuring/administrative law issue) In re Checking Account Overdraft Litigation, Case No.: 1:09-MD-02036-JLK, United States District Court for the Southern District of Florida (2012) (Bank of America case; declaration and supplemental declaration on fees) In re Checking Account Overdraft Litigation, Case No.: 1:09-MD-02036-JLK, United States District Court for the Southern District of Florida (2012) (Bank of Oklahoma case; declaration on fairness of settlement and fees) In re Cell Therapeutics Inc. Securities Litigation, Master Docket No. C10-414 MJP, United States District Court for the Western District of Washington (2012) (declaration on fees) In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL NO. 2179, Eastern District of Louisiana (2012) (declarations on economic and medical benefits class settlements) Freudenberg v. eTrade Financial Corporation, Case No.: 07-CV-8538, United States District Court for the Southern District of New York (2012) (declaration on fees) LaCour v. Whitney Bank, Case No. 8:11-cv-1896-VMC-MAP (United States District Court for the Middle District of Florida (2012) (declaration on settlement and fees) In re Checking Account Overdraft Litigation, Case No.: 1:09-MD-02036-JLK, United States District Court for the Southern District of Florida (2012) (Union Bank case; declaration on fees) Smith v. American Bankers Insurance Company of Florida, Case No.: 2:11-cv-02113-PKH, Western District of Arkansas (2012) (declaration on class certification) Blankenship v. RBS Citizens, N.A., Case No. 1:10-cv-22942-JLK, Southern District of Florida (2012) (declaration on fees) Mazzadra, et al. v. TD Bank, N.A., Case No. 1:10-cv-21870-JLK, Southern District of Florida (2012) (declaration on fees)


54

In re Citigroup Inc. Securities Litigation, Case No. 07-civ-9901-SHS, Southern District of New York (2013) (declaration on fees) Rubery v. E*Trade Financial Corporation, Case No. 07-CV-8612 (JPO), Southern District of New York (2013) (declaration and supplemental declaration on fees) Chieftain Royalty Co. v. QEP Energy Co., Case No. 11-cv-00212-R (Western District of Oklahoma 2013) (declaration on fairness of settlement and fees) Drummond v. Range Resources Corp., Case No. CJ-2010-510, District Court of Grady County, Oklahoma (2013) (declaration on fairness of settlement and fees) Landman Partners Inc. v. Blackstone Group LP, Case No. 08 Civ. 3601 (HB)(FM), Southern District of New York (2013) (declaration on fees) White v. Experian Information Solutions, Inc., Case No. 05-cv-1070 DOC, Central District of California (2013) (declaration on fees) Berry v. LexisNexis Risk & Information Analytics Group, Inc., Case No. 3:11cv754, Eastern District of Virginia (2013) (declaration on fees) Dyer v. Wells Fargo Bank, N.A., Case No. C-13 2858, Northern District of California (2014) (declaration on fees) U.S. Foodservice Inc. Pricing Litigation, Case No. 3:07-md-1894, District of Connecticut (2014) (declaration on fees)

Other Activities Member, Board of Directors, American Law and Economics Association (1996-1999) Member, Board of Advisors, The Independent Review (1996-present) Member, Board of Advisors, Asian Institute of International Financial Law (2001-present) Member, Editorial Advisory Board, Supreme Court Economic Review (1995-present) Member, Editorial Advisory Board, The Brookings-Wharton Papers on Financial Policy (1997-present) President, Section on Financial Institutions and Consumer Financial Services, American Association of Law Schools (1999) President, Section on Business Associations, American Association of Law Schools (1995)


55

Member, Board of Contributors, American Bar Association Preview of Supreme Court Cases (1985-1993) Consultant, Administrative Conference of the United States (1988-89; 1991-1992) Board of Directors and Volunteer Listener, D.C. Hotline (1980-83)

Awards 1992 Paul M. Bator Award for Excellence in Teaching, Scholarship and Public Service, from the Federalist Society for Law and Public Policy Studies

Languages

Reading knowledge of Spanish, French, and Italian.

Shorter Works Defusing The Banks’ Financial Time Bomb: Without Tough Reforms, Writes Robert Pozen, We'll Probably Face An Ugly Repeat of Recent History (Business Week, March 11, 2010) Why Interstate Banking is in the National Interest, Testimony Before the Subcommittee on Financial Institutions Supervision, Regulation and Deposit Insurance of the House Committee on Banking, Housing and Urban Affairs (September 29, 1993) Challenging the Concept of the Common Law as a Closed System, Columbia Law School Report, Autumn, 1993 (with Norman Silber) The Insurance Industry's Antitrust Exemption: A Longstanding Tradition Faces its Greatest Challenge, 1992-93 ABA Preview of Supreme Court Cases 198 (1993) Shootout at the Escheat Corral, 1992-93 ABA Preview of Supreme Court Cases (1993) Choices and Chances for Consumers, Legal Times, Oct. 12, 1992, at 29-30. Impeachment Procedures: An Unexplored Territory in the Separation of Powers, 1992-93 ABA Preview of Supreme Court Cases 39 (1992) An (Ex)changing of the Guard, 21 Journal of Legal Studies iii (1992) Revisiting the Contingency Factor in Fee-Shifting Awards, 1991-92 ABA Preview of Supreme Court Cases 327 (1992) The Foreign Sovereign Immunities Act and the Market for Public International Debt, 1991-92 ABA Preview of Supreme Court Cases 307 (1992)


56

Return of the Tenth Amendment?: Federal Control and State Autonomy over Low Level Radioactive Wastes, 1991-92 ABA Preview of Supreme Court Cases 284 (1992) What are the Limits on Congressional Power to Influence Pending Cases?, 1991-92 ABA Preview of Supreme Court Cases 158 (1991) RICO Standing for Securities Fraud: Does the Purchaser-Seller Rule of Rule 10b-5 Apply?, 1991-92 ABA Preview of Supreme Court Cases 155 (1991) Banking and Investment: Introduction to UPA Index and Microfiche Collection (University Publications of America 1991) Source of Strength in the Court: Can Bank Holding Companies be Required to Support Failing Subsidiary Banks?, 1991-92 ABA Preview of Supreme Court Cases 42 (1991) Source of Strength: A Source of Trouble, Legal Times, September 30, 1991 (Special Supplement, pp. 22-25) The Once and Future American Banking Industry, The American Enterprise (with Jonathan R. Macey)(1991) The Former Stockholder as Plaintiff in Short-Swing Trading Cases, 1990-91 ABA Preview of Supreme Court Cases (1991) Disposing of Demand Excuse in Derivative Litigation, 1990-91 ABA Preview of Supreme Court Cases (1991) Up in the Air: Can Congress Require States to Appoint Members of Congress to State Agencies?, 1990-91 ABA Preview of Supreme Court Cases 294 (1991) The Statute of Limitations under Rule 10b-5, 1990-91 ABA Preview of Supreme Court Cases (1991) Tort Claims Against Federal Banking Agencies: New Hope For Shareholders and Officers of Failed Depository Institutions?, 1990-91 ABA Preview of Supreme Court Cases 94 (1991) Punitive Damages Redux: If the Eighth Amendment Doesn't Apply, What About the Due Process Clause?, 1990-91 ABA Preview of Supreme Court Cases 47 (1990) Quandaries of Causation: Proxy Solicitation in Freeze-Out Mergers, 1990-91 ABA Preview of Supreme Court Cases 57 (1990) Racial Statesmanship, Legal Times S31 (July 23, 1990) Eurodollars, Sovereign Risk, and the Liability of U.S. Banks for Deposits in Foreign Branches, 1989-90 ABA Preview of Supreme Court Cases 281 (1990)


57

When is a Note a Note?, 1989-90 ABA Preview of Supreme Court Cases 18 (1990) Interstate Banking and the Commerce Clause, 1989-90 ABA Preview of Supreme Court Cases 168 (1990) Federal Courts, Municipalities, and the Contempt Power, 1989-90 ABA Preview of Supreme Court Cases 37 (1989) Shoe Could Still Drop on Issue of Punitive Damages, National Law Journal (August 21, l989) Punitive Damages and the Constitution, 1988-89 ABA Preview of Supreme Court Cases 391 (l989) States, Bankruptcy and the Eleventh Amendment, 1988-89 ABA Preview of Supreme Court Cases 412 (1989) Stockholders, Arbitration, and the Securities Act of 1933, 1988-89 ABA Preview of Supreme Court Cases 383 (1989) Appropriations Riders, Nondisclosure Agreements, and the Separation of Powers, 1988-89 ABA Preview of Supreme Court Cases 375 (1989) Judicial Appointments and the ABA: Business as Usual or Brand New World?, 1988-89 ABA Preview of Supreme Court Cases 379 (1989) S & L Receiverships, State Law, and the Federal Courts, 1988-89 ABA Preview of Supreme Court Cases 255 (1989) The Non-delegation Doctrine in Taxation: A Different Constitutional Calculus?, 1988-89 ABA Preview of Supreme Court Cases 26l (1989) Bankruptcy, Tax Liens, and Post-Petition Interest, 1988-89 ABA Preview of Supreme Court Cases (1989) Federal Courts, State Taxes: A Vexing Dilemma For the Enforcement of Civil Rights in a Federal System, 1989-90 ABA Preview of Supreme Court Cases 95 (1988) Separation of Powers and the Sentencing Commission, 1988-89 ABA Preview of Supreme Court Cases 23 (1988) Administering the Savings and Loan Crisis: New Problems for the FSLIC, 1988-89 ABA Preview of Supreme Court Cases (1988) Federal Procurement and the Separation of Powers, 1988-89 ABA Preview of Supreme Court Cases 26 (1988)


58

Thinking About a Career in Law, 1988-89 Talbot's Student Planning Book 32 (1988) Carl McGowan: A Great Judge Remembered, 56 George Washington Law Review 697 (1988) Separation of Powers: The Independent Counsel Case Tests the Limits, 1987-88 ABA Preview of Supreme Court Cases 390 (1988) Decisionmaking in Collegial Bodies, Judicature, April/May 1988 The FDIC, Bank Officers and the Due Process Clause, 1987-88 ABA Preview of Supreme Court Cases 326 (1988) Farm Foreclosures in Bankruptcy, 1987-88 ABA Preview of Supreme Court Cases l99 (1988) Equal Access to Justice and Government Litigation, 1987-88 ABA Preview of Supreme Court Cases 160 (1988) The Time Value of Money in Bankruptcy Cases, 1987-88 ABA Preview of Supreme Court Cases 116 (1987) Getting the Fee First?: Attorneys and the SSI Program l987-88 ABA Preview of Supreme Court Cases 118 (1987) The Farmer and the FDIC, 1987-88 ABA Preview of Supreme Court Cases 48 (1987) Testing the Limits of Securities Fraud: Financial Gossip in the Court, 1987-88 ABA Preview of Supreme Court Cases 26 (1987) Checks and Balances in the Twenty-First Century, 33 University of Chicago Law School Record 7 (1987) Separation of Powers May Become Focus Over NSC, Legal Times, Dec. 15, 1986, at 15 If a Bank is a Broker, is a Brokerage a Branch? 1986-87 ABA Preview of Supreme Court Cases 65 (1986) Attorney's Fees in the Supreme Court, American Bar Association Journal 40 (November, 1986) The Contingency Factor in Attorney's Fees Reconsidered, 1986-87 ABA Preview of Supreme Court Cases 20 (1986) Restitution and Bankruptcy in a Federal System, 1986-87 ABA Preview of Supreme Court Cases (1986) Don't Limit Contingent Fees, Chicago Tribune, June 11, 1986


59

The Budget and the Separation of Powers: Gramm-Rudman in the Court, 1985-86 ABA Previews of Supreme Court Cases 359 (1986) Keeping Attorneys Fees in Proportion, 1985-86 ABA Preview of Supreme Court Cases 325 (1986) Must the Federal Government Pay Interest on Attorneys Fees Awards?, 1985-86 ABA Preview of Supreme Court Cases 241 (1986) The Contingency Factor in Attorneys Fees Awards, 1985-86 ABA Preview of Supreme Court Cases 243 (1986) The FCC as Cop: Forcing State Public Service Commissions to Obey Federal Agency Orders, 1985-86 ABA Preview of Supreme Court Cases 191 (1986) Preemption, Public Utilities, and Power Over Telephone Rate-Setting, 1985-86 ABA Preview of Supreme Court Cases 187 (1986) A Bank is a Bank is a Bank -- or is it?, 1985-86 ABA Preview of Supreme Court Cases 67 (1985) Settlement Offers Conditioned on Waiver of Attorneys' Fees: A Legal and Ethical Dilemma Confronts the Court, 1985-86 ABA Preview of Supreme Court Cases 55 (1985) Bankruptcy and the Environment: The Case of Hazardous Wastes, 1985-86 ABA Preview of Supreme Court Cases 25 (1985) A Different Approach to Interstate Banking, American Banker (August 8, 1985) The SEC as Censor: Is Banning an Investment Advice Newsletter a Prior Restraint of the Press?, 1984-85 ABA Preview of Supreme Court Cases 243 (1985) Enforcing Federal Rights in State Courts, 1984-85 ABA Preview of Supreme Court Cases 277 (1985) Interstate Banking and the Constitution, 1984-85 ABA Preview of Supreme Court Cases 364 (1985) The "Sale of Business" Doctrine in the Supreme Court, 1984-85 ABA Preview of Supreme Court Cases 344 (1985) Sale of Business Revisited: Does the Doctrine Apply to Partial Sales of Corporate Control, 1984-85 ABA Preview of Supreme Court Cases 347 (1985) Six Cases Shape Business Law, American Bar Association Journal 124 (Jan. 1985)


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Offers of Settlement in Civil Rights Cases Pose Attorneys' Fees Question, 1984-85 ABA Preview of Supreme Court Cases 105 (1984) Using Bankruptcy to Avoid Liability for Cleaning up Toxic Wastes, 1984-85 ABA Preview of Supreme Court Cases 36 (1984) A Judicial Footnote Cemented the New Deal, Wall Street Journal, September 13, 1984 May Bank Holding Companies Provide Discount Brokerage Savings?, 1984-85 ABA Preview of Supreme Court Cases 575 (1984) Blum v. Stenson: Fundamental Questions About Attorneys' Fees Awards to Public Interest Lawyers, 1984-85 ABA Preview of Supreme Court Cases 301 (1984) Myths on the Midway, 30 Chicago Law School Record 13 (1984) Smith v. Robinson: Another Step Towards Solving the Attorneys' Fees Puzzle? 1983-84 ABA Preview of Supreme Court Cases 437 (1984) Securities Industry Association v. Board of Governors: Can Banks Distribute Commercial Paper? 1983-84 ABA Preview of Supreme Court Cases 425 (1984) The "7-Eleven" Case: Arbitration v. Litigation in a Federal System, 1983-84 ABA Preview of Supreme Court Cases 161 (1983) The Bildisco Case: Reconciling Federal Bankruptcy and Labor Policies, 1983-84 ABA Preview of Supreme Court Cases 169 (1983) The "Daily Income Fund" Case: What Role Should a Mutual Fund's Board of Directors Play in Disputes over Investment Advisor Fees, 1983-84 ABA Preview of Supreme Court Cases 107 (1983) Pulliam v. Allen: Should State Judges who Act Unconstitutionally Pay the Plaintiff's Attorneys' Fees?, 1983-84 ABA Preview of Supreme Court Cases 115 (1983) "Shortsighted" Bill Proposes D.C. Court Divestiture, Legal Time of Washington, August 16, 1982 The Tax Bill May Be Unconstitutional, Baltimore Sun, August 16, 1982 (with Donald N. Bersoff)


61

Appendix B: Case Materials Reviewed

1. Civil Docket

2. Defendants’ Joint Motion to Dismiss the Direct Purchasers’ Complaint

3. Memorandum of Law in Support of Defendants’ Joint Motion to Dismiss the Direct Purchasers’ Complaint

4. Memorandum Opinion and Order, June 12, 2009.

5. Protective Order

6. Memorandum of Law in Support of Direct Purchaser Plaintiffs’ Motion For Class Certification

7. Defendants’ Joint Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification

8. Reply Memorandum of Law in Support of Direct Purchaser Plaintiffs’ Motion for Class Certification

9. Plaintiffs’ Motion for Leave to Submit Supplemental Authority in Opposition to Defendants’ Daubert Motions and in Support of Plaintiffs’ Motion For Class Certification

10. Transcript of Proceedings Before the Honorable James B. Zagel, March 5, 2014

11. Transcript of Proceedings Before the Honorable James B. Zagel, March 6, 2014

12. Transcript of Proceedings Before the Honorable James B. Zagel, April. 11, 2014

13. Plaintiffs’ Motion for Preliminary Approval of Settlement With Arcelormittal S.A. and Arcelormittal Usa Llc, Conditional Certification of a Settlement Class, and Approval of Notice, Summary Notice and Notice Plan

14. Order Preliminarily Approving Settlement with Arcelormittal S.A. and Arcelormittal USA LLC, Conditionally Certifying Settlement Class, and Approving Notices and Notice Plan

15. Plaintiffs' Unopposed Motion for Preliminary Approval of Settlement With United States Steel Corporation, Conditional Certification of a Settlement Class, and Approval of Notice, Summary Notice and Notice Plan

16. Plaintiffs’ Motion for Leave to Submit Supplemental Authority in Support of Plaintiffs’ Motion for Class Certification


62

17. Order Preliminarily Approving Settlement with United States Steel Corporation, Conditionally Certifying Settlement Class, and Approving Notices and Notice Plan

18. Plaintiffs’ Motion for Leave to Submit Supplemental Authority on Support of Plaintiffs’ Motion for Class Certification

19. Settlement Agreement with Commercial Metals Company

20. Settlement Agreement with AK Steel Holding Corporation

21. Settlement Agreement with Gerdau Ameristeel Corporation

22. Settlement Agreement with ArcelorMittal S.A. and ArcelorMittal USA LLC

22. Settlement Agreement with United States Steel Corporation

23. Direct Purchaser Plaintiffs’ Motion for Final Approval of Settlements with Commercial Metals Company, AK Steel Holding Corporation, and Gerdau Ameristeel Corporation, for Payment of the Expenses of Notice and Settlement Administration, and for Reimbursement of Litigation Expenses to Class Counsel

24. Memorandum of Law in Support of Plaintiffs’ Motion for Final Approval of Settlements with Commercial Metals Company, AK Steel Holding Corporation and Gerdau Ameristeel Corporation, for Payment of the Expenses of Notice and Settlement Administration, and for Reimbursement of Litigation Expenses to Class Counsel

25. Joint Declaration of Jeffrey S. Istvan and Michael J. Guzman in Support of Direct Purchaser Plaintiffs’ Motion for Payment of Expenses of Settlement Administration and Reimbursement of Litigation Expenses to Class Counsel

26. Plaintiffs’ Counsels’ Lodestar Spreadsheet


63

Appendix C: Surveys and Analyses Reviewed

1. Brian Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical L. Stud. 811 (2010)

2. Theodore Eisenberg & Geoffrey Miller, “Attorney Fees and Expenses in Class

Action Settlements: 1993-2008,” 7 Journal of Empirical Studies 248-281 (2010) (“Eisenberg & Miller 2010”)

3. Theodore Eisenberg & Geoffrey Miller, “Attorneys’ Fees in Class Action

Settlements: An Empirical Study,” 1 Journal of Empirical Legal Studies 27 (2004) 4. Theodore Eisenberg, Geoffrey Miller & Michael Perino, A New Look at Judicial

Impact: Attorneys' Fees in Securities Class Action After Goldberger v. Integrated Resources, Inc., 29 Washington University Journal of Law & Policy 5 (2009)

5. Logan, Stuart J., Moshman, Jack & Moore, Beverly C., Jr., Attorney Fee Awards

In Common Fund Class Actions, 24 Class Action Rep. 167 (2003) 6. Kolz, Amy, “Bankruptcy Rates Top $1,000 Mark In 2008-09.” Weblog. The Am

Law Daily. 12 Dec 2009, available at http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202436371636

7. National Law Journal, “A Nationwide Sampling of Law Firm Billing Rates.”

Weblog. The National Law Journal. 19 Dec 2011, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202535946626


Weblog. The National Law Journal. 6 Dec 2010, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202475713526&slreturn=1


Weblog. The National Law Journal. 7 Dec 2009, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202436068099


Weblog. The National Law Journal. 8 Dec 2008, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202436055916&hbxlogin=1


Weblog. The National Law Journal. 10 Dec 2007, available at http://www.law.com/jsp/nlj/PubArticlePrinterFriendlyNLJ.jsp?id=1197021870294


64

12. Richard M. Phillips & Gilbert C Miller, The Private Securities Litigation Reform Act of 1995: Rebalancing Litigation Risks and Rewards for Class Action Plaintiffs, Defendants and Lawyers, 51 BUS. LAW. 1009, 1029 & n.131 (1996)

13. Bower, Ward. Pricing Legal Services. Report to Legal Management. Newtown

Square: Altman Weil, Inc., 2004, available at www.altmanweil.com/.../ce653539-fd49-4cfa-a6fe-2c68136304c3_document.pdf

14. Brennan, William. New Survey Focuses on Law Firm Economics. Report to

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Review and Analysis (Cornerstone Research 2010) 16. Ellen M. Ryan & Laura E. Simmons, Securities Class Action Settlements – 2011

Review and Analysis, (Cornerstone Research, 2012), available at http://www.cornerstone.com/files/Publication/a0e54ba8-2830-4c00-9481 108208ec4ed8/Presentation/PublicationAttachment/f03e4174-ec8a-4eb3-ba22-19bd5162f09e/Cornerstone_Research_Settlements_2011_Analysis.pdf

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EXHIBIT 5


Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judgeor Magistrate Judge

Judge Zagel Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 06 CV 3621 DATE June 24, 2010

CASETITLE

SCHAGRINGAS CO. et al. v. BP PRODUCTS NORTH AMERICA, INC., et al.

DOCKET ENTRY TEXT:

Plaintiffs’ motion for attorneys’ fees and expenses is granted. Plaintiffs’ motion for approval of final expensepayment to GCG is entered and continued. Plaintiffs are ordered to file documentation setting forth theamount of expenses outstanding.

Page 1 of 2


STATEMENT

As part of their motion for final settlement approval, Plaintiffs request attorneys’ fees in the amount of29.5% of the gross settlement fund, or $15.34 million, as well as costs and expenses in the amount of$782,869.28. Plaintiffs also seek approval of a final expense payment to The Garden City Group (“GCG”),the Claims Administrator in the present action. For the following reasons, Plaintiffs’ requests for approval ofpayments are granted.

Plaintiffs’ request for attorneys’ fees in the amount of 29.5%, or $15.34 million, is fair and reasonablecompensation for class counsels’ efforts in this case. “When a class suit produces a fund for the class, it iscommonplace to award the lawyers for the class a percentage of the fund, in recognition of the fact that mostsuits for damages in this country are handled on the plaintiff's side on a contingent-fee basis.” Gaskill v.Gordon, 160 F.3d 361, 362 (7th Cir. 1998) (internal citations omitted). When set by the court, the fee shouldbe at a level “that will approximate what the market would set.” Id. at 363; see Sutton v. Bernard, 504 F.3d688, 690 (7th Cir. 2007). One way to gauge the market rate is to examine evidence of “the terms of retentionin similar suits,” Steinlauf v. Continental Ill. Corp., 962 F.2d 566, 573 (7th Cir. 1992), or “an actual offer ofrepresentation by an attorney in this case to a plaintiff in this case regarding the specific facts of this case[,]”Spicer v. Chicago Bd. Options Exchange, Inc., 844 F. Supp. 1226, 1255 (N.D. Ill. 1993). In this case,Plaintiffs have submitted both, and the evidence demonstrates that the market range for legal services in acontingency matter such as this (or in this same matter) is 30-33%. Plaintiffs are seeking 29.5% of the grosssettlement fund, a percentage fee at the lower end of this range. Counsel expended substantial effort in thiscomplicated and risky monopolization case. The requested 29.5% fee is fair and reasonable.

Plaintiffs also request costs and expenses in the amount of $782,869.28. Because under the commonfund doctrine attorneys may collect their related expenses, because Plaintiffs’ requested fees are at the lowend of the market range, and because there has been no objection, Plaintiffs are entitled to this sum. SeeHolbrook v. Pitt, 748 F.2d 1168, 1176 (7th Cir. 1984); In re Matter of Synthroid Marketing Litig., 264 F.3d712, 722 (7th Cir. 2001).

Finally, Plaintiffs seek approval of a final expense payment to GCG, the Notice and ClaimsAdministrator retained in this case. In the Preliminary Approval Order, this Court authorized that moniesfrom the Settlement Fund be used for reasonable expenses associated with administering the Fund. I aminclined to authorize this payment, but am unable to locate any documentation filed since the last approvedpayment on December 8, 2009, which sets out or summarizes what these expenses might be. Once I receivesupporting documentation, I will issue my ruling on this payment.

Page 2 of 2


EXHIBIT 6


EXHIBIT 7


Case 1:01-cv-12239-WGY Document 297 Filed 04/09/04 Page 1 of 9Case: 1:08-cv-05214 Document #: 519-8 Filed: 10/01/14 Page 2 of 10 PageID #:19701

exhibit 1 - steel antitrust litigation settlement website no. 08-cv-5214 ... (nucor, steel dynamics,...

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