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finding a twenty-five percent fee adequate to further public policy of encouraging securities lawsuits
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09 Civ. 10087 (SAS)
11-16-2011
IN RE CANADIAN SUPERIOR SECURITIES LITIGATION This Document Relates To: ALL ACTIONS.
David Avi Rosenfeld, Esq, Samuel Howard Rudman, Esq. Robbins Geller Rudman & Dowd LLP (LI) Ellen Anne Gusikoff Stewart, Esq. Robbins Geller Rudman & Dowd LLP (San Diego) Marshall Pierce Dees, Esq. Michael Ira Fistel, Jr., Esq. Holzer Holzer & Fistel, LLC David A.P. Brower, Esq. Brower Piven Lawrence P. Eagel, Esq. Paul D. Wexler, Esq. Bragar, Wexler & Eagel, P.C. Mark Peter Kindall, Esq. Schatz and Nobel PC Robin Bronzaft Howald Clancy Binkow & Goldberg LLP (NYC) For Defendants: Jack C. Auspitz, Esq. Jamie A. Levitt, Esq. Morrison & Foerster LLP (NYC)
MEMORANDUM
OPINION AND ORDER
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiffs have brought putative securities class actions against officers of Canadian Superior Energy, Inc. ("Canadian Superior"). On June 9, 2011, the parties filed a Stipulation and Agreement of Settlement ("Stipulation") that seeks to conclude this litigation. Following the Court's preliminary approval of the proposed settlement, plaintiffs now move for Final Approval of Settlement and Plan of Allocation of Settlement Proceeds. Co-Lead Plaintiffs' Counsel move for an Award of Attorneys' Fees and Expenses. A fairness hearing was held on November 8, 2011, and no objections were raised. For the reasons stated below, plaintiffs' motion for Final Approval of Settlement and Plan of Allocation of Settlement Proceeds is granted. Co-Lead Plaintiffs' Counsel's motion for an Award of Attorneys' Fees and Expenses is granted, but not for the amounts requested. I. CLASS CERTIFICATION
See Docket No. 59. The terms of the Stipulation are incorporated into this Order by reference. All capitalized terms not defined in this Order have the meaning given to them in the Stipulation.
See Docket No. 60.
For purposes of settlement only, the Court finds that the prerequisites for a class action under Federal Rule of Civil Procedure 23(a) and (b)(3) have been satisfied in that: (a) the number of U.S. Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the U.S. Class; (c) the claims of the U.S. Lead Plaintiff are typical of the claims of the U.S. Class he seeks to represent; (d) the U.S. Lead Plaintiff has and will fairly and adequately represent the interests of the U.S. Class; (e) the questions of law and fact common to the members of the U.S. Class predominate over any questions affecting only individual U.S. Class Members; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Pursuant to Rule 23 and for purposes of the Settlement only, this Court hereby finally certifies the U.S. Action as a class action on behalf of all individuals and entities who purchased or otherwise acquired Canadian Superior common stock between January 14, 2008 and February 17, 2009, inclusive, other than members of the Canadian Class and Excluded Persons. Included within the definition of Excluded Persons and excluded from the U.S. Class are the individuals and/or entities who have requested exclusion from the U.S. Class by filing a timely and valid request for exclusion as listed on Exhibit 1 annexed hereto.
II. NOTICE
Notice of the pendency of the U.S. Action as a class action and of the proposed Settlement was given to all U.S. Class Members who could be identified with reasonable effort. The form and method of notifying the U.S. Class of the pendency of the U.S. Action as a class action and of the terms and conditions of the proposed Settlement met the requirements of Rule 23, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. §78u-4(a)(7), as amended by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), Rule 23.1 of the Local Rules of the Southern and Eastern Districts of New York, and due process, and constituted due and sufficient notice to all individuals and entities entitled thereto.
III. APPROVAL OF SETTLEMENT
I find that the proposed settlement is fair, adequate, and reasonable and in the best interests of the U.S. class. Initially, a strong presumption of fairness attaches because the settlement was reached by experienced counsel after arm's length negotiations. In addition, the Grinnell factors weigh in favor of approving the settlement.
See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005).
See City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000).
First, the complexity, expense, and duration of the litigation justify the settlement. The litigation would likely be lengthy and relatively expensive as many of the witnesses are located in Canada. There would be technical questions concerning oil exploration efforts off the coast of Trinidad and Tobago, which would require expert discovery and testimony. Second, the reaction of the class weighs in favor of settlement - no objections have been made, and only three Class Members have opted out of the settlement. Third, the stage of proceedings favors settlement - although there has been no formal discovery, plaintiffs' counsel have done an adequate factual investigation to be thoroughly apprised of the merits of their case.
Fourth, the risk of establishing liability favors settlement. Although plaintiffs survived a motion to dismiss, defendants could raise several defenses that would pose serious obstacles on summary judgment - specifically, defendants contend that (a) the statements at issue were speculative and forward looking; (b) the defendants did not make the statements or omissions with the requisite scienter; and (c) plaintiffs would have difficulty establishing that their losses were caused by defendants' alleged misrepresentations. Fifth, plaintiffs would have difficulty quantifying and proving the amount of their damages.
Sixth, the risk of maintaining the Class Action through trial favors settlement. Defendants would oppose class certification, and the settlement avoids defendants raising "intractable management problems" as a defense to class certification. Seventh, the settlement is reasonable in light of the best possible recovery and the attendant risks of litigation. The settlement provides an immediate payment to the Class of a settlement that constitutes 8.5% of "Lead Plaintiffs most aggressive estimate of maximum provable damages." Although not a spectacular recovery, it does exceed the average recovery in shareholder litigation. Eighth, the ability of defendants to withstand a greater judgment weighs heavily in favor of settlement. Canadian Superior is in receivership. The only source of recovery is the directors' and officers' liability insurance policy, which was wasting away each day.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997).
Lead Plaintiffs Memorandum of Law in Support of Motion for Final Approval of Settlement and Plan of Allocation of Settlement Proceeds at 16.
See Ellen M. Ryan, Laura E. Simmons, Securities Class Action Settlements, 2010 Review and Analysis, at 5 (Cornerstone Research 2011).
Accordingly, the Settlement is approved as fair, reasonable, and adequate. The U.S. Action is hereby dismissed in its entirety with prejudice and without costs.
IV. PLAN OF ALLOCATION
The Plan of Allocation is approved as fair and reasonable, and plaintiffs' counsel and the Claims Administrator are directed to administer the Stipulation in accordance with its terms and provisions. Without further order of the Court, the parties may agree to reasonable extensions of time to carry out any of the provisions of the Stipulation.
V. ATTORNEYS' FEES AND EXPENSES
Co-Lead Plaintiffs' Counsel requests $109,787.62 in expenses on behalf of all of plaintiffs' firms. In support of these expenses, Co-Lead Plaintiffs' Counsel has submitted a summary expense report for each firm. These costs include routine expenses relating to copying, court fees, postage and shipping, phone charges, legal research, and travel and transportation. The bulk of the expenses relate to experts, consultants, and investigators. No objections were filed to these expenses. The expenses total approximately two percent of the Settlement Amount.
See 9/2/11 Declaration of Jeffrey A. Berens, plaintiffs' counsel, Filed on Behalf of Dyer & Berens LLP in Support of Application for Award of Attorneys' Fees and Expenses ("Berens Decl.") at 1-2; 9/1/11 Declaration of Michael I. Fistel, Jr., plaintiffs' counsel, Filed on Behalf of Holzer Holzer & Fistel LLC in Support of Application for Award of Attorneys' Fees and Expenses ("Fistel Decl") at 2; 9/13/11 Declaration of Ellen Gusikoff Stewart Filed on Behalf of Robbins Geller Rudman & Dowd LLP in Support of Application for Award of Attorneys' Fees and Expenses ("Stewart Decl.") at 2-3.
See Stewart Decl. at 2.
I find that these expenses are reasonable. These expenses, particularly those attributable to professional services, were a contributing factor to achieving the settlement. Accordingly, I grant plaintiffs' counsel $109,787.62 in expenses, plus interest on such amount at the same rate as that earned by the Gross Settlement Fund.
See In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 468 (S.D.N.Y. 2004).
In addition to expenses, Co-Lead Plaintiffs' Counsel also request a fee of thirty percent of sixty percent of the Settlement Amount, or $936,000, for U.S. counsel. Although I intend to use the percentage method to award fees in this matter, the lodestar is often used as a cross-check. Co-Lead Plaintiffs' Counsel represent that the aggregate loadstar for all plaintiffs' firms is $760,006.25 for 1,654.4 hours. Because the lodestar is being used merely as a cross-check, it is unnecessary for the Court to delve into each hour of work that was performed by counsel to ascertain whether the number of hours reportedly expended was reasonable. After reviewing the supporting declarations, which include a summary of the hours expended by and the billing rates for every attorney, paralegal, and staff member that worked on this litigation, I find that $760,006.25 is a reasonable lodestar for the time expended by plaintiffs' firms.
See Co-Lead Counsel's Memorandum of Law in Support of Motion for an Award of Attorney's Fees and Expenses at 17. In addition, Canadian Counsel are requesting twenty-five percent of forty percent of the Settlement Amount, or $520,000. See id. at 1 n.2. Due to the greater amount of work expended by U.S. Counsel, I find that the sixty-percent/forty-percent split of fees between Canadian Counsel and U.S. Counsel is reasonable.
See id. at 17; see also Stewart Decl. at 1; Berens Decl. at 1; Fistel Decl. at 1.
See Goldberger, 209 F.3d at 50 (citing In re Prudential Ins. Co. Am. Sales Litig., 148 F.3d 283, 342 (3d Cir. 1998) ("Of course, where [the lodestar is] used as a mere cross-check, the hours documented by counsel need not be exhaustively scrutinized by the district court.").
I further find that a fee of twenty-five percent of sixty percent, or $780,000, is reasonable after assessing the Goldberger factors. First, I find that the time and labor expended by plaintiffs' counsel support a twenty-five percent fee. As noted, plaintiffs' counsel have invested approximately 1,650 hours in these actions. They also expect additional time to be expended administering and distributing the settlement funds. However, there was no formal discovery in these actions. Due to the early stage of this litigation, a lower fee of twenty-five percent fee is appropriate.
Second, while these actions, like all securities class actions, would likely have required expert discovery and motion practice, this action is not on the large side of securities litigations. It focused on alleged misstatements and/or omissions concerning discrete issues by officers of one corporation in receivership. A twenty-five percent fee is reasonable compensation considering the size and relative simplicity of this litigation.
Third, the risk of this litigation supports a twenty-five percent fee. "It is well-established that litigation risk must be measured as of when the case is filed." Although there was certainly a risk of plaintiffs receiving nothing in this action, I do not find that the risk was substantial enough to justify a thirty-percent fee.
Id. at 55 (citations omitted).
Fourth, I find that plaintiffs' counsel ably represented the interests of the Class. Still, the Second Circuit has held that "the quality of representation is best measured by results." In this case, although plaintiffs have recovered 8.5% of the maximum amount of estimated damages, I find that the total recovery of $5,200,000 is not so extraordinary as to justify a thirty-percent fee. In this case, the result is underwhelming despite counsel's best efforts. This factor weighs in favor of a fee award of twenty-five percent.
Id.
Fifth, I find that a twenty-five percent fee is reasonable in relation to the settlement. In addition to the fee requested by U.S. Counsel, Canadian counsel also requested twenty-five percent of forty percent of the Settlement Amount. In total, plaintiffs' counsel seek at least $1,565,787.62 in fees and expenses. This figure is not reasonable in light of the settlement. I see no reason why U.S. counsel should receive a thirty-percent fee while Canadian counsel receive twenty-five percent. As noted previously, the recovery of $5.2 million is by no means an overwhelming recovery. A twenty-five percent fee is reasonable in relation to the settlement.
This figure represents fees sought by U.S. and Canadian Counsel and expenses sought by U.S. Counsel. The expenses sought by Canadian Counsel are not known to this Court.
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Sixth, I find that a twenty-five percent fee is adequate to further the public policy of encouraging private lawsuits to protect investors. Plaintiffs' counsel will recover their lodestar and all expenses invested in these lawsuits. In these actions, a significant multiplier of the lodestar is not necessary to further public policy goals.
After reviewing the Goldberger factors I award plaintiffs' counsel fees of twenty-five percent of sixty percent of the Settlement Amount, or $780,000. I find that the Goldberger factors do not require a multiplier of the lodestar. The difference between the lodestar and the awarded fee is de minimis.
This fee should therefore adequately compensate - but not overcompensate - counsel for their time and labor. The award of fees and expenses are intended to compensate plaintiffs' counsel for all of the time and labor spent until the conclusion of this litigation, including that associated with the distribution of the settlement fund. However, I realize that by awarding a fee close to the lodestar I am not compensating counsel for the risks associated with bringing these actions. However, the risks here - together with the recovery achieved - do not warrant additional fees.
VI. CONCLUSION
For the reasons stated above, plaintiffs' motion for Final Approval of Settlement and Plan of Allocation of Settlement Proceeds is granted. Co-Lead Plaintiffs' Counsel's motion for an Award of Attorneys' Fees and Expenses is granted, but not for the amounts requested. The Clerk of the Court is directed to close this motion [Docket No. 62], this case, and all related cases.
SO ORDERED:
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
November 16, 2011
- Appearances -
For Plaintiffs:
David Avi Rosenfeld, Esq,
Samuel Howard Rudman, Esq.
Robbins Geller Rudman & Dowd LLP (LI)
Ellen Anne Gusikoff Stewart, Esq.
Robbins Geller Rudman & Dowd LLP (San Diego)
Marshall Pierce Dees, Esq.
Michael Ira Fistel, Jr., Esq.
Holzer Holzer & Fistel, LLC
David A.P. Brower, Esq.
Brower Piven
Lawrence P. Eagel, Esq.
Paul D. Wexler, Esq.
Bragar, Wexler & Eagel, P.C.
Mark Peter Kindall, Esq.
Schatz and Nobel PC
Robin Bronzaft Howald
Clancy Binkow & Goldberg LLP (NYC)
For Defendants:
Jack C. Auspitz, Esq.
Jamie A. Levitt, Esq.
Morrison & Foerster LLP (NYC)
Exclusion Cover Page
Case Name: Canadian Superior Energy Case Code: CANADIAN Exclusion Deadline: 10/10/2011 (Postmark Date) Name of Person Filing Exclusion: Bret & Kimberly Andrews
Exhibit 1
OPT OUT LETTER
FOR
CANADIAN SUPERIOR SECURITIES LITIGATION
Bret Andrews & Kimberly Andrews Telephone: 20 September 2011
Canadian Superior US Class Action Exclusions
Claims Administrator
c/o Gilardi & Co. LLC
PO Box 990
Corte Madera, CA 94976-0990
Dear Sir: This letter confirms our desire to opt out of the above mentioned class action. The number of shares of Canadian Superior purchased on the US AMEX exchange from 1/14/2008 - 2/17/2009: 39200 The number of shares of Canadian Superior sold on the US AMEX exchange from 1/14/2008 - 2/17/2009: 39200 Detail (broker statements enclosed):
+---------------------------+ ¦Date ¦Type ¦#shares¦ +----------+--------+-------¦ ¦1/17/2008 ¦purchase¦11000 ¦ +----------+--------+-------¦ ¦2/4/2008 ¦purchase¦17000 ¦ +----------+--------+-------¦ ¦2/13/2008 ¦purchase¦11200 ¦ +----------+--------+-------¦ ¦3/5/2008 ¦sale ¦9000 ¦ +----------+--------+-------¦ ¦3/10/2008 ¦sale ¦9400 ¦ +----------+--------+-------¦ ¦3/12/2008 ¦sale ¦20800 ¦ +---------------------------+
Sincerely,
Bret Andrews
Kimberly Andrews
Exclusion Cover Page
Case Name: Canadian Superior Energy Case Code: CANADIAN Exclusion Deadline: 10/10/2011 (Postmark Date) Name of Person Filing Exclusion: Columbus Capital Offshore Fund, LTD.
COLUMBUS
CAPITAL MANAGEMENT LLC
OPT OUT LETTER
FOR
CANADIAN SUPERIOR SECURITIES LITIGATION
Columbus Capital Management, LLC
Telephone: 05 October 2011
Canadian Superior US Class Action Exclusions
Claims Administrator
c/o Gilardi & Co. LLC
PO Box 990
Corte Madera, CA 94976-0990
Dear Sir: This letter confirms our desire to opt out of the above mentioned class action for the two investment partnerships that we manage.
Columbus Capital Partners, L.P.:
The number of shares of Canadian Superior purchased on the US AMEX exchange from 6/26/2008 - 8/12/2008: 637,500 The number of shares of Canadian Superior sold on the US AMEX exchange from 8/14/2008- 11/18/2008: 637,500
1 Market Street-Spear Tower | Suite 3790 | San Francisco, CA 94105 | Tel: (415)986-5085 | Fax: (415)986-5130
Columbus Capital Offshore Fund, LTD.:
The number of shares of Canadian Superior purchased on the US AMEX exchange from 6/26/2008 - 8/12/2008: 112,500 The number of shares of Canadian Superior sold on the US AMEX exchange from 8/14/2008 11/19/2008: 112,500 Details will be provided if requested. Sincerely,
Robert J. Morelli, Jr.
Chief Financial Officer
Canadian Superior Securities Litigation
Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
CANADIAN
Exclusion Cover Page
Case Name: Canadian Superior Energy Case Code: CANADIAN Exclusion Deadline: 10/10/2011 (Postmark Date) Name of Person Filing Exclusion: Columbus Capital Partners, L.P.
Opt-out Report Administration: Canadian Superior Energy ("CSE") Securities Litigation
Court: Ontario Superior Court of Justice - 1626CP, 1358/10CP & CV-10-1484S United States District Court Southern Court of New York - 1:09-cv-10087-SAS Opt-out Deadline: October 10, 2011 Date of Report: October 14, 2011 Prepared For: (via email) Anthony O'Brien - Siskinds LLP
Charles Wright - Siskinds LLP
A. Dimitri Lascaris - Siskinds LLP
Jay Strosberg - Sutts, Strosberg LLP
Ellen Gusikoff- Bobbins Geller Rudman & Dowd LLP
Michael I. Fistel, Jr. - Holzer Holzer & Fistel, LLC
Jeffrey A. Berens - Dyer & Berens LLP
Gavin Price - Jensen Shawa Solomon Duguid Hawkes LLP
Jamie A. Levitt - Morrison & Foerster, LLP
Cathy Crang - Carscallen Leitch LLP
V. Phil Lalonde - McLeod & Company LLP
Steven Leitl - Macleod Dixon LLP
Prepared By: Ivan Bobanovic Contact: Phone: 519-432-3405 x 328
Email: ibobanovic@nptricepoint.com
300-633 Colborne St. London, ON N6B 2V3 519.432.5534
www.nptricepoint.com