Opinion
MDL Docket No. 1275 All Cases (Judge David R. Herndon)
April 19, 2001
MEMORANDUM AND ORDER
On March 29, 2001, this Court held a hearing on Plaintiffs' motion for final approval of the proposed class action settlement in this case; Plaintiffs' proposed plan of allocation; the application of Plaintiffs' counsel for an award of attorneys' fees and costs and incentive payments to the class representatives; and the motions to intervene by purported class members objecting to the settlement and Plaintiffs' counsel's application. Having fully considered all papers submitted and oral argument presented on the matters, the factual record of all proceedings before the Court, and the totality of the circumstances, the Court grants Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards.
The settlement negotiated by Plaintiffs' counsel, and ultimately approved by the Court, has created an $88 million cash fund, which is accruing interest, to be distributed to class members after deduction of notice and administrative expenses and any Court-awarded attorneys' fees and costs. In payment of their attorneys' fees and reimbursement of costs they incurred in this case, Plaintiffs' counsel seek a total award of 29 percent of the $88 million original balance of the fund, plus interest thereon at the same rate and for the same period as that earned by the settlement fund since its establishment. Plaintiffs' counsel also ask the Court to authorize payment of incentive awards of $5,000 to each of the class representatives, to be paid from the amount awarded to Plaintiffs' counsel for fees and costs.
The Court has evaluated the fees requested by Plaintiffs' counsel for their services in this case in light of the market prices commanded by legal services of similar nature and scope. See In re Continental Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) ("[T]he object in awarding a reasonable attorney's fee is to simulate the market where a direct market determination is infeasible. It is infeasible in a class action . . . . So the judge has to step in and play surrogate client."). The Court finds that the percentage-of-recovery method of awarding fees is more appropriate than the lodestar method here, and will award attorneys' fees to Plaintiffs' counsel using the percentage method. See Florin v. Nationsbank of Georgia, 34 F.3d 560, 566 (7th Cir. 1994) ("[I]n common fund cases, the decision whether to use a percentage method or a lodestar method remains in the discretion of the district court.").
Plaintiffs' counsel seek an award of 29 percent plus interest to cover attorneys' fees and costs and incentive awards. Thus, the requested fee is effectively less than 29 percent. The Court finds that this percentage fee is within the range of percentage fees typically awarded in common-fund cases. See, e.g., Malloy v. Ameritech, 98-CV-488-GPM (S.D.Ill. July 21, 2000) (awarding 29 percent of settlement fund for attorneys' fees and costs)("The Court finds that the percentage of the fund requested is well within the range approved by the Seventh Circuit . . . ."); Gaskill v. Gordon, 160 F.3d 361 (7th Cir 1998) (affirming 38 percent fee award).
In the exercise of its discretion, and from its unique perspective as a trial court and the transferee court for this multidistrict litigation, the Court has also considered all other relevant factors in evaluating Plaintiffs' counsel's application, including the difficulty of prosecuting telecommunications claims generally; the risks of pursuing this case in particular; the complexity of the issues involved; the vigorous opposition Plaintiffs' counsel faced from sophisticated and well-funded Defendants represented by skilled counsel; the achievement of a very large cash settlement fund under these conditions; Plaintiffs' counsel's design and implementation of a computerized claims process, which appears to have been highly successful in encouraging class members to participate in the settlement; and the fact that completion of the claims process is likely to require substantial additional work of Plaintiffs' counsel. See, e.g., Ellis v. Flying Tiger Corp., 504 F.2d 1004, 1008-09 (7th Cir. 1972) (reviewing percentage fee award in light of "the course of this litigation, the difficulties and preparation time involved, and the benefits achieved for the class"); Montgomery v. Aetna Plywood, Inc., 1999 WL 172313 at *4 (N.D. Ill. Mar. 18, 1999) (awarding percentage fee after consideration of factors such as vigorous opposition faced by plaintiffs; "highly competent representation" provided, "good recovery" achieved, and creative settlement terms designed by plaintiffs' counsel; risks of litigation; and size of recovery), aff'd in part, rev'd in part on other grounds, 231 F.3d 399 (7th Cir. 2000).
As for the incentive awards to the class representatives, such awards properly compensate named plaintiffs for the services they render and the risks they incur in pursuing claims on behalf of the class. The $5,000 awards requested here are within the range typically awarded by courts. By coming forward to serve as class representatives, assuming all associated responsibilities such as the obligation to participate in discovery, and cooperating with their counsel in the prosecution of this case, the named plaintiffs here played an important role in achieving the settlement. Furthermore, the requested incentive awards will not affect the recovery received by the class members under the settlement, as the awards will be paid out of the amount awarded to Plaintiffs' counsel for attorneys' fees and costs.
The Court has considered all objections to the application of Plaintiffs' counsel for attorneys' fees and costs and incentive awards, and has heard argument on the objections. As explained above, under the circumstances here, the Court finds that the percentage method of awarding fees is appropriate and the 29-percent fee-and-cost award is reasonable. Furthermore, the award may properly be calculated as a percentage of the entire fund, and need not be based only on that portion actually claimed by the class. See Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) (holding that common-fund doctrine required assessment of fees against entire fund, and not only against claimed portion). The Court is not required to "cross-check" the requested percentage award with a lodestar analysis. The Court knows of no decision by the Seventh Circuit requiring a lodestar cross-check in all circumstances and, because the Court has found that the percentage method better simulates the market for the type of services rendered by Plaintiffs' counsel here, a cross-check is not necessary. This reasoning is echoed by Ramah Navajo Chapter v. Babbitt, 50 F. Supp.2d 1091 (D.N.M. 1999), in which the "the Court . . . adopted this [percentage] method of determining a reasonable fee because it most closely approximates the manner in which the marketplace would value the services provided." Id. at 1104. "In the contingency fee context the marketplace would value the services by the results obtained, not by the hours required to achieve them." Id. "Therefore, the lodestar analysis proposed by the Objectors — either as the primary means of setting the award or as a check on the reasonableness of a proposed percentage — would not provide an accurate gauge by which to judge the award." Id.
Plaintiffs' counsel suffer from no disabling conflict of interest simply because they seek fees and costs from the settlement fund. Under the common-fund doctrine, the reasonable costs of creating a common fund should be paid from the fund itself. The Court recognizes that the award reduces the amount of the settlement fund available for distribution to the class. However, the class notice approved by the Court addressed the effect of the award on the settlement fund. The notice accurately disclosed that the award of attorneys' fees would reduce the amount available for distribution to the class, and informed the class members that they need not pay the attorneys' fees or costs of Plaintiffs' counsel out of their own pockets.
It is also proper to award the incentive payments to the class representatives, for they are the ones who actually stepped forward to pursue this case for the benefit of all. Having been in a unique position to observe the class representatives' contributions, as reflected by the papers and proceedings before it, the Court need not require the class representatives to support the incentive awards with their own affidavits or declarations, and declines to do so. Finally, none of the objections having helped the Court in its analysis of Plaintiffs' counsel's application, the Court denies all requests by the objectors for their own attorneys' fees or costs. The Court rejects all of the objections, for the reasons stated here and in the record of these proceedings.
Therefore, having considered all papers submitted and oral argument presented in support of and in opposition to Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards, including all objections to the application from purported class members, the Court GRANTS the application (Doc 65). The Court AWARDS Plaintiffs' counsel 29 percent of the $88 million settlement fund, plus interest thereon at the same rate and for the same period as that earned by the settlement fund since its establishment, in payment of their attorneys' fees and reimbursement of the costs they incurred in this case. The Court also AWARDS incentive payments of $5,000 to each of the class representatives, to be paid from the fee-and-cost award. IT IS SO ORDERED.
MEMORANDUM AND ORDER
On March 29, 2001, this Court held a hearing on Plaintiffs' motion for final approval of the proposed class action settlement in this case; Plaintiffs' proposed plan of allocation; the application of Plaintiffs' counsel for an award of attorneys' fees and costs and incentive payments to the class representatives; and the motions to intervene by purported class members objecting to the settlement and Plaintiffs' counsel's application.
The Court has considered motions to intervene by the following objectors:
(1) Jonathan I. Arnold; (2) James Cerveny; (3) John R. Corey and Michael Livingston; (4) Melody L. Fields and Peter B. Cummins; (5) Yolanda V. Luna; (6) Kathleen and William McWhorter and Caufield Associates, Inc.; (7) Alan Rothstein, Rick Schweinberg, and Laura Ellis; (8) Leslie Sax and Lawrence Wolfson; (9) Tri-County Abstract Company, John J. Pentz, Jr., Connie Pentz Realty, and Joel Shapiro; and (10) Ronald K. Weintraub. The Court has evaluated the motions in light of Seventh Circuit precedent concerning the intervention of class members who object to settlements or associated attorneys' fee awards. See Crawford v. Equifax Payment Servs., 201 F.3d 877, 881 (7th Cir. 2000) (in reversing order approving procedurally suspect and "substantively troubling" settlement, stating that objectors should be freely allowed intervention to appeal); Cusack v. Bank United of Texas, 159 F.3d 1040, 1042 (7th Cir. 1998) (affirming denial of objectors' motion to intervene, where they failed to show they were prejudiced or otherwise adversely affected by settlement). The Court has considered all relevant factors and finds that the movants fail to satisfy the requirements for intervention of right under FEDERAL RULE OF CIVIL PROCEDURE 24(a) or permissive intervention under RULE 24(b). In particular, the Court finds that the movants have failed to show, under Rule 24(a), that they have an interest relating to the property or transaction that is the subject of this action, that they are so situated that disposition of the action may as a practical matter impair or impede their ability to protect that interest, and that their interest is inadequately represented by existing parties. The Court also finds that the movants have failed to show, under Rule 24(b), that they have a claim sharing a question of law or fact with this action, and that their intervention would not unduly delay or prejudice the adjudication of the rights of the original parties or the class.
For instance, the movants have failed to make an adequate showing that they are members of the class; and that they have been billed by Defendants and paid nonsubscriber surcharges or rates for direct-dialed long distance telephone calls for which they have not received credits; and that they have filed or intend to file claims under the settlement, such that their interests would be adversely affected by approval of the settlement or Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards. The movants' submissions reflect a lack of familiarity with the litigation generally and the terms of the settlement in particular. Virtually all of the movants are represented by counsel, who could have gained such awareness simply by reviewing the documents in the Court's publicly accessible files. By itself, the movants' lack of familiarity with the settlement they attack raises serious doubt about whether they are truly seeking to protect a genuine interest in this matter.
Further, the movants have failed to show any prejudice from the form or manner in which notice was given to the class. The Court has found that the form and manner of notice given in this case complied with FEDERAL RULE OF CIVIL PROCEDURE 23(c)(2) and the due process clause of the United States Constitution. The movants' submissions show that they themselves received enough information about the terms of the settlement to understand their options for making claims against the settlement fund and for making objections. Furthermore, the movants do not argue they were not sufficiently informed about the procedures for excluding themselves from the class.
The movants have also failed to show any prejudice from the substantive terms of the settlement. The settlement gives all class members the option of receiving (a) a full or close to full refund of actual overcharges resulting from nonsubscriber overbilling by supplying a minimal amount of information, or (b) a $75 flat payment by supplying even less. The Court has found this consideration fair, reasonable, and adequate for the class members' release of claims against Defendants for nonsubscriber billing. As discussed above, the movants' submissions show that they understood these options. If dissatisfied with this consideration, the movants could have excluded themselves from the class and preserved any claims they might have against Defendants. Again, the movants' submissions do not show they misunderstood the exclusion option.
Furthermore, the movants have failed to show that they have been inadequately represented in this litigation. On the contrary, the Court finds that the representation of the class by Plaintiffs and their counsel has been more than adequate at all times. The movants' ability to file and argue objections to the settlement and Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards refutes any argument that their views on these matters have not been advocated. Conversely, the movants have failed to show that they themselves will adequately represent the class in prosecuting their objections. By moving to intervene as named parties in this class action, the movants effectively seek to join the litigation as class representatives or usurp the existing ones. Either course requires them to show they are adequate class representatives. Through their very objections, however, the movants have shown their interests to be antagonistic to the vast majority of class members who have accepted the terms of the settlement, including the many who have sent letters or e-mails enthusiastically supporting it. In addition, the movants' lack of familiarity with the litigation and the settlement raises further concern about their ability to adequately represent the class. See Gottlieb v. Wiles, 11 F.3d 1004, 1008 (10th Cir. 1993) (affirming denial of motion to intervene)("Permitting unnamed class members to pursue an appeal contrary to the wishes of the named class representatives would effectively substitute the unnamed members for the certified class representatives . . . . Since in this case the Welches are the only class members to have objected to the terms of the settlement, their interests are not compatible with those of the other members of the class, and the Welches would thus be ineligible to represent the class."), cited in In re Brand Name Prescription Drugs Antitrust Litig., 115 F.3d 456, 458 (7th Cir. 1997).
Therefore, having considered all papers submitted and oral argument presented in support of and in opposition to the motions to intervene, the full record of this litigation, and the totality of the circumstances, the Court DENIES all motions to intervene (Docs. 55, 63, 71, 80, 84, 91, 92, 94, and 101).
IT IS SO ORDERED.
MEMORANDUM AND ORDER
By its Order Granting Preliminary Approval of Proposed Settlement, Provisionally Certifying Class, and Directing Dissemination of Notice to Class, filed January 12, 2001, the Court granted preliminary approval of the proposed class action settlement in this litigation. The Court also scheduled a hearing for March 29, 2001 on whether it should grant final approval of the settlement; Plaintiffs' proposed plan of allocation; and Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards to the class representatives. The Court ordered that any objections to the settlement or Plaintiffs' counsel's application be submitted in writing, and established procedures for the filing, briefing, and resolution of objections. The Court directed that the class be given notice of the settlement and the hearing in the form and manner proposed by the parties, including the procedures for the filing, briefing, and resolution of objections.
As of the March 29, 2001 hearing, the Court had received approximately ten objections from individual or groups of purported class members to the terms of the settlement or the notice to the class thereof. Most of these objectors and other purported class members also objected to Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards. In addition, many of those objecting to the settlement or the application sought to intervene in the litigation. The Court heard oral argument on the objections and the motions to intervene at the March 29, 2001 hearing.
This Order is the Court's ruling on the objections insofar as they relate to whether the proposed settlement is fair, reasonable, and adequate and should thus be approved by the Court. The Court will issue a separate Order addressing all motions to intervene and a separate Order addressing the objections directed at Plaintiffs' counsel's application for attorneys' fees and costs and incentive awards to the class representatives.
The Court's duty is to consider the settlement as a whole to determine if it is fair, reasonable, and adequate. See Armstrong v. Board of Sch. Dirs., 616 F.2d 305, 312, 315 (7th Cir. 1980) (stating standard), overruled on other grounds, Felzen v. Andreas, 134 F.3d 873, 875 (7th Cir. 1998). In making that determination, the Court affords a "presumption of fairness" to proposed settlements that are the product of arm's-length, adversarial negotiations between competent counsel conducted after sufficient discovery. See, e.g., Susquehanna Corp. v. Korholz, 84 F.R.D. 316, 321 (N.D.Ill. 1979). With these standards in mind, the Court turns to the merits of the objections.
Some objectors criticized the way in which notice was disseminated to the class. The record demonstrates that Poorman-Douglas Corp., whose retention as Claims Administrator by Plaintiffs' counsel was authorized by the Court, sent the Court-approved full form of notice by first-class mail to more than 5.3 million potential class members. As further authorized by the Court, Huntington Legal Advertising published the Court-approved summary form of notice in eight general-interest magazines distributed nationally; approximately 900 newspapers throughout the United States and a Puerto Rico newspaper. In addition, Huntington Legal Advertising caused the distribution of the Court-approved press release to over 2,500 news outlets throughout the United States. Huntington Legal Advertising attested — without rebuttal — to its estimation that as a result of the mailing and publication of notice, over 92 percent, or 22 million, of the approximately 24 million past and present long distance customers of Defendants MCI WorldCom, Inc. (now known as "WorldCom, Inc."), MCI Telecommunications Corporation, MCI Communications Corporation, and MCI WorldCom Management Company had four opportunities on average to see the full or summary form of notice. The class here is a subset of the group comprising all past and present long distance customers. The manner in which notice was distributed was more than adequate, and the objections thereto are overruled. The objections to the substance of the notice are also meritless. As it did when it approved the full and summary forms of notice, the Court finds that the forms of notice fairly and clearly described the terms of the settlement and explained the options open to class members who disagreed with its terms. Moreover, the class member responses to the notice received by the Claims Administrator and counsel confirm that the notice adequately conveyed the substance of the settlement to the class. The notice thus met the requirements of Rule 23(c)(2) of the Federal Rules of Civil Procedure and of the due process clause of the United States Constitution. Turning to the substantive fairness of the settlement, the Court notes that in exercising its supervisory power over the progress of this litigation, the Court gained first-hand knowledge that the negotiations leading to this settlement were hard-fought, lengthy and entirely at arm's length. Counsel for both Plaintiffs and Defendants devoted considerable effort to achieving this heavily negotiated compromise. No objector has offered any reason to conclude that the settlement was in any way improper, collusive, or otherwise flawed. On the contrary, the settlement appears on its face to provide full, or close to full, compensation for all class members who respond to the notice, which was the best practicable notice under the circumstances. The Court finds that the settlement is, on the merits, fair, adequate, and reasonable for the class as a whole.
Therefore, having considered all papers submitted and oral argument presented in support of and in opposition to the proposed class action settlement and the objections thereto, and having considered the full record of this litigation, the Court rejects all of the objections. The Court finds that the parties gave the best practicable notice of the settlement to the class under the circumstances. The Court finds that the settlement is, on the merits, fair, reasonable, and adequate for the class as a whole.
IT IS SO ORDERED.
ORDER
On January 12, 2001, the Court entered an Order granting preliminary approval of the proposed settlement, provisionally certified the class, and directed dissemination of notice to the class (Doc. 50). On March 29, 2001, the Court held a hearing on the parties' motion to approve the settlement set forth in the Stipulation of Settlement, dated December 22, 2000 (the "Stipulation"). Due and adequate notice having been given of the settlement set forth in the Stipulation (the "Settlement") as required in said Order, and the Court having considered all papers filed and proceedings had herein and otherwise being fully informed in the premises and good cause appearing therefor, the Court now rules as follows.
1. This Court has jurisdiction over the subject matter of the litigation and over all parties to the litigation, including all members of the class.
2. Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 23, this Court hereby reaffirms its findings and conclusion, set forth in its Preliminary Approval Order that, for purposes of the Stipulation and the Settlement, this Class meets the prerequisites for the bringing of a class action set forth in FEDERAL RULE OF CIVIL PROCEDURE RULE 23(a) and the requirements for maintenance of a class action under RULE 23(b)(3). The Court hereby makes final its previously conditional certification of the class.
3. Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 23(e), the Court hereby approves the Settlement and finds that the Settlement is, in all respects, fair, reasonable, and adequate for the class.
4. This Court hereby dismisses with prejudice and without costs (except as otherwise provided in the Stipulation) the litigation against the Defendants.
5. The Court finds that the Stipulation and the Settlement are fair, reasonable, and adequate as to each of the settling parties, grants final approval of the Stipulation and the Settlement in all respects, and directs the settling parties to perform the terms of the Stipulation.
6. As set forth in Paragraph 5.1 of the Stipulation, upon the effective date, the Representative Plaintiffs and each of the class members shall be deemed to have, and by operation of the judgment entered in this case shall have, fully, finally, and forever released, relinquished, and discharged the released persons from all released claims.
7. As set forth in Paragraph 5.2 of the Stipulation, upon the effective date, each of the released persons and their counsel shall be deemed to have, and by operation of the judgment shall have, fully, finally, and forever released, relinquished, and discharged each and all of the Representative Plaintiffs and counsel to the Representative Plaintiffs from any and all other claims, demands, liabilities, and causes of action of every nature and description whatsoever, known or unknown, whether or not concealed or hidden, asserted or that might have been asserted, arising out of, based upon, or related to the initiation, prosecution, assertion, litigation, settlement, or resolution of the Litigation or the released claims.
8. The notice of the Settlement provided to the members of the class by Representative Plaintiffs, pursuant to the Preliminary Approval Order, was the best notice practicable under the circumstances, including the individual notice to all members of the class who could be identified through reasonable effort. Under the circumstances, said notice provided the best practicable notice of those proceedings and of the matters set forth therein, including the proposed Settlement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirements of due process.
9. Neither the plan of allocation submitted by Plaintiffs' lead counsel, nor any application for attorneys' fees and reimbursement or expenses, nor any application for incentive awards to the Representative Plaintiffs, nor any order entered by this Court thereon shall in any way disturb or affect the final judgment in this case, and all such matters shall be considered separate from the judgment.
10. Within forty-five (45) days after entry of the judgment, the Parties shall file an agreed listing of each person who submitted a request for exclusion from the class in compliance with the procedures set forth in the notice to the class. The persons so identified shall neither share in the benefits of the Settlement nor be bound by the judgment in this case. All other members of the class shall be bound by the judgment.
11. Neither the Stipulation nor the Settlement nor any act performed or document executed pursuant to or in furtherance of the Stipulation or the Settlement (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any released claims, or of any wrongdoing or liability of the Defendants, or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Defendants in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal. Defendants may file the Stipulation and/or the judgment from this action in any other action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good-faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.
12. Without affecting the finality of the judgment in this case, the Court hereby retains continuing jurisdiction over (a) implementation of the Settlement and any award or distribution of the settlement fund, including interest earned thereon; (b) disposition of the settlement fund; (c) further proceedings, if necessary, on applications for attorneys' fees, costs, and expenses and applications for incentive awards to the Representative Plaintiffs in connection with the litigation and the Settlement; and (d) all parties hereto for the purpose of construing, enforcing, and administering the Stipulation. Among other things, this Court retains continuing jurisdiction over the litigation to enforce Defendants' obligations under the Stipulation to pay class claims, administrative expenses, awards of attorneys' fees, costs, and expenses, and incentive payments to the Representative Plaintiffs from the settlement fund; and if Defendants fail to fulfill those obligations completely, the Court retains the power to vacate the provisions of the judgment releasing, relinquishing, and discharging, and barring and enjoining the prosecution of, the released claims against the released persons, and to reinstate the released claims against the released persons.
13. The Court finds that during the course of the litigation, the settling parties and their respective counsel at all times complied with the requirements of FEDERAL RULE OF CIVIL PROCEDURE 11, and that the Stipulation is the product of good-faith negotiations.
14. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation, then the judgment in this case shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation. Accordingly, the Court GRANTS the parties' motion to approve settlement (Doc. 66) and DISMISSES with prejudice the Plaintiffs' claims against Defendants. The Court DIRECTS the Clerk to enter judgment pursuant to the Stipulation of Settlement.
IT IS SO ORDERED.
ORDER
On March 29, 2001, this Court held a hearing on Plaintiffs' motion for final approval of the proposed class action settlement in this case; Plaintiffs' proposed plan of allocation; the application of Plaintiffs' counsel for an award of attorneys' fees and costs and incentive payments to the class representatives; and the motions to intervene by purported class members objecting to the settlement and Plaintiffs' counsel's application. The Court will issue separate orders granting final approval of the settlement; granting Plaintiffs' counsel's application; rejecting all objections to the settlement on the merits; and denying all motions to intervene.
The Stipulation Of Settlement dated December 22, 2000, setting forth the terms of the settlement, includes as Exhibit C a Plan Of Allocation, which sets forth a plan for distribution of the settlement fund to the class after deduction of notice and administrative expenses; any attorneys' fees and costs awarded to Plaintiffs' counsel; and any incentive payments awarded to the class representatives. Having considered all papers submitted and oral argument presented in support of and in opposition to the Plan Of Allocation, the full record of this litigation, and the totality of the circumstances, the Court approves the Plan Of Allocation as fair, reasonable, and adequate for the class as a whole.
IT IS SO ORDERED.