DocketNumber： Nos. 434, 576, Dockets 84-7589, 84-7669
Judges： Mansfield, Newman, Oakes
Filed Date： 5/10/1985
Status： Precedential
Modified Date： 11/4/2024
This approval of an antitrust class action settlement comes before us a second time. In Malchman v. Davis, 706 F.2d 426 (2d Cir.1983), we remanded approval of the settlement for further analysis of the adequacy of class representation and the adequacy, fairness, and reasonableness of the settlement itself — the latter with particular concern for the proposed award of attorneys’ fees and costs in the amount of $2,325 million. Remand was ordered with the understanding that, while we were calling for “further analysis,” we were not making “any attempt to circumscribe the permissible conclusions that the District Judge may reach upon completing his further consideration of the matter.” Id. at 436 (Newman, J., concurring). On such further consideration, the district judge again concluded that the representation of the plaintiff class was adequate and the settlement, including attorneys’ fees, was adequate, fair, and reasonable. Malchman v. Davis, 588 F.Supp. 1047 (S.D.N.Y.1984). We affirm. Familiarity with the opinion of this court on the prior appeal and the opinion of the district court after remand will be assumed, though we will briefly restate the case to illuminate what follows.
In 1976, litigation commenced in state court in the form of a class action brought by Frieda Lederer on behalf of the class of insurance-buying members of the AARP, charging Davis, CPG, and others with fraud and breach of fiduciary duty and alleging, inter alia, that the class was overcharged for insurance policies purchased from CPG. A federal class action alleging antitrust liability was subsequently brought in October 1977, the class again consisting of the insurance-buying members of the AARP. Neither the state court nor the federal court action sought damages; rather, each sought injunctive relief to terminate the relationship between Leonard Davis and CPG, on the one hand, and the Associations, on the other. The district court’s opinion on remand now informs us that discovery was begun and basically continued in the state court action — in which there was no dispute concerning the jurisdiction of the court over the fraud and breach of fiduciary duty claims — with the understanding that the state court discovery would or could be used in the federal court action. We are also advised that, in response to mutual document requests, plaintiffs produced over 4,000 pages of documents and defendants over 100,000 pages of documents, of which plaintiffs made copies of over 65,000 pages. 588 F.Supp. at 1049-50 & n. 1. Depositions were also taken by both plaintiffs and defendants from January 1979 through mid-May 1980, with some 66 days of testimony resulting in 11,850 pages of transcript and “numerous disputes during the discovery resulting in applications to the state court.” Id. at 1050. Meanwhile, defendants filed a motion to dismiss the federal complaint, claiming that the action was barred by section 2(b) of the MeCarran-Ferguson Act, 15 U.S.C. § 1012(b) (1982) (concerning applicability of the Sherman Act, Clayton Act, and Federal Trade Commission Act to insurance business), and that the plaintiffs lacked standing. This motion was never decided, despite the quantity of material submitted to the court, because by the spring of 1980 serious settlement negotiations were taking place, and by mid-June of 1980 the parties had requested the federal court to withhold decision. Id.
Meanwhile, in February 1979, the Associations had passed a series of resolutions— in essence, to discontinue their endorsement of certain CPG products other than group health insurance, to accept general advertising, to study other insurance programs, to negotiate with CPG relative to membership maintenance and processing, and to consider the possibility of phasing out the Associations’ group health insurance program (run by CPG). On September 1, 1980, the Associations signed an agreement with CPG, the substance of which is set forth in our previous opinion, 706 F.2d at 429. The agreement essential
The appellants objecting to the settlement are the same persons who previously objected — including Harriet Miller, the former executive director of the Associations, who played an instrumental role in bringing about the disassociation of CPG and the Associations, as well as the Mountain Plains Congress of Senior Organizations. They now urge that the district court erred and violated this court’s mandate by granting renewed approval to the proposed settlement without allowing discovery and without conducting an evidentiary hearing. They contend that the settlement does not fall within a range of fairness reflecting adequacy of representation and that the district court made errors of law as well as incorrect assumptions regarding matters of fact. They object to approval of the attorneys’ fees and conclude generally that the proposed settlement is contrary to the interests of the class, being “all cost and no benefit.”
Discussion
We begin with appellants’ procedural objections. Their point is that the district court granted approval on remand without allowing discovery and without conducting an evidentiary hearing. Our prior opinion referred to the fact that the district court had “stated conclusions but made no specific findings” and that we could not properly review the settlement “because we do not have sufficient analysis of several pivotal issues.” 706 F.2d at 427. We said that we could not “intelligently review the settlement on this record,” id. at 433, and that while the district judge was entitled to rely on pertinent portions of the state court referee’s report as to reasonableness, “his reliance could not substitute for federal court inquiry as to matters pertinent to the federal suit that were either not considered or inadequately considered by the referee.” Id. at 434. Judge Newman, concurring, supported “our call for further analysis.” Id. at 436.
At the same time, we said that we did not expect a district judge to “convert settlement hearings into mini-trials on the merits,” id. at 433, and that no further evidentiary hearing would be necessary unless the objectors raised “cogent factual objections to the settlement,” id. at 434 (quoting Weinberger v. Kendrick, 698 F.2d 61, 79 (2d Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983)); see also City of Detroit v. Grinnell Corp., 495 F.2d 448, 464 (2d Cir.1974) (Grinnell I) (objectors must make “clear and specific showing that vital material was ignored by the District Court”). Thus we did not re
1. Adequacy of class representation. The first issue remanded for findings is whether the named plaintiffs were fair and adequate representatives for both the class of insurance buyers they purported to represent at the time suit was brought and the broadened class ultimately approved by the district court. Fed.R.Civ.P. 23(a)(4). In the district court, the objectors sought discovery as to “[t]he relationships of named-plaintiffs to counsel, and other information bearing upon adequacy of their representation of absentee class members.” Discovery was denied by the district court, which instead proceeded on the theory, citing Fischer v. ITT, 72 F.R.D. 170, 173 (E.D.N.Y.1976), that “the ‘touchstone’ for denial of class action status was the question of whether the plaintiff had an interest in the attorney’s fee,” and that as “a matter of common experience in class actions,” it is the attorneys and not the class plaintiffs “who make the litigation decisions, determine strategy, and negotiate settlement terms.” 588 F.Supp. at 1057-58. The district court, attesting to “the high professional character of [plaintiffs’ attorneys’] work,” found that the class was represented by attorneys who had “acted with outstanding vigor and dedication.” Id. at 1058.
On first impression, the district court’s denial of discovery appears in conflict with the spirit of our remand, where we pointed out that “[a] judge has an obligation to consider whether the interests of the class are adequately represented” and that he or she “must examine the quality of representation with particular care where, as here, a class is sought to be broadly expanded after the litigation has been in process and for purposes of settlement.” 706 F.2d at 433. Moreover, in this case an initial impression of impropriety in regard to class representation seems difficult to avoid; as we also pointed out, plaintiff Malchman is the brother of class counsel; plaintiff Conway is the sister of the chauffeur of class counsel; plaintiff Lederer was the mother-in-law of class counsel; and plaintiff Stone is a personal friend of class counsel. Id. at 432.
It appears now, however, that before settlement negotiations began, defendants had deposed the named plaintiffs at length on issues that included the ties between the named plaintiffs and class counsel; plaintiff Deutriell had been deposed for three days, resulting in 611 pages of transcript; plaintiff Louis Stone had also been deposed for three days, resulting in 399 pages of transcript; plaintiff Conway had been deposed for three days, resulting in 380 pages of transcript; and Joseph Stone, a plaintiff in the state court (but not the federal court) action, had been deposed at comparable length on two days. Our perusal of these depositions, transcripts of which were handed to us at argument, demonstrates to us that the defendants’ questioning of plaintiffs was searching, strenuous, and conducted at arm’s length— as evidence by the acerbic interchanges among the parties’ counsel and the deponents.
Joseph Stone, a man of impressive credentials,
Plaintiff Deautriell apparently had learned about the Lederer case from objector Harriet Miller, whom he had called in reference to the Washington Post article. Deautriell was to obtain from the Lederers what was then the name of co-counsel for plaintiffs, Kaufman, Taylor, Kimmel & Miller (now Kaufman Malchman & Kirby). He became a plaintiff after learning for himself about the nature of the suit; there is no indication that he was solicited in any manner, shape or form.
Plaintiff Louis Stone wrote an investment letter for the firm then known as Shearson, Hayden & Stone, for whom he was a registered representative and vice president. According to Stone’s deposition, in June 1978, Stone had lunch with his friend, Stanley L. Kaufman, counsel for plaintiff Lederer. Following the luncheon, over which the litigation was discussed, Stone volunteered to become a plaintiff “as a representative policy holder and as a social-minded participant in so-called benefits of this hospitalization plan for older people ... in an inflating society who are subject to the hazards of sickness and old age without adequate incomes currently.” Stone testified without hesitation that it was he who first raised the subject of his becoming a plaintiff. He, too, had some feisty words for defendants’ counsel: “The objective here, it seems to me, is not to ascertain the truth of the facts, the objective is to discredit me as a plaintiff or as a witness and I wish you would state this objective and, of course, you don’t.” As he went on to say, “[a]nd although I don’t hold myself out as one of nature’s noblemen, I think that I have a duty as a citizen to help in the prosecution of evil.”
Plaintiff Conway has worked full- and part-time for Social Concern Housekeeping Vendor Agency for some six years. Her late brother, Alvin Curley, had been a chauffeur for Milton Gould, of what was then Shea, Gould, Climenko & Casey (now Shea & Gould), and had “overheard a conversation that Shea Gould was involved in a lawsuit against AARP and Colonial Penn.” Her brother asked her if she wanted to join in. After that conversation, she received a call from one of the Shea, Gould lawyers, but she testified unequivocally that no lawyer had asked her to become a plaintiff in this action.
Appellants argue that the district court did not make an independent examination of the relationship between counsel and the named plaintiffs. While we think the district court’s treatment of the adequacy of representation was somewhat limited, cf. Susman v. Lincoln American Corp., 561 F.2d 86, 90-94 (7th Cir.1977) (setting forth extensive analysis of adequacy of representation problems where named plaintiff related to plaintiff’s counsel), our examination of the depositions indicates that the plaintiffs — particularly Joseph Stone, a plaintiff in the state court proceeding — were quite appropriate, perhaps even zealous members of the class. Moreover, as the brief of the plaintiffs-appellees points out, appellants failed to specify a single question that would have improved upon the defendants’ searching depositions of the plaintiffs. Certainly in respect to the dual issues of representation and solicitation, appellants have furnished no “cogent factual objections” indicating the need for discovery or possible evidentiary hearing. See Weinberger, 698 F.2d at 79.
In the end, the question whether named plaintiffs are adequate class representatives is one committed to the sound discretion of the district court.
2. Adequacy, fairness, and reasonableness of the settlement. The second major issue is the adequacy, fairness, and reasonableness of the settlement. See, e.g., Weinberger, 698 F.2d at 73; Plummer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir. 1982). We have gained much from the district court’s opinion, as well as from the briefs and record furnished to us on this appeal, and may now compare the substantive terms of the settlement to the likely result of a trial, Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25, 88 S.Ct. 1157, 1163-64, 20 L.Ed.2d 1 (1968); accord In re Traffic Executive Association-Eastern Railroads, 627 F.2d 631, 633 (2d Cir.1980), and examine the negotiating process for evidence of coercion or collusion. Weinberger, 698 F.2d at 74; Robertson v. National Basketball Association, 556 F.2d 682, 684 n. 1 (2d Cir. 1977); Grinnell I, 495 F.2d at 465.
On comparing the possible results of a trial to the terms of the settlement, the key issue from a federal-court point of view is, as it always has been, the viability of a claim for damages by the plaintiff class under the antitrust laws. No such claim was made; our question on the previous appeal was whether one should have been, 706 F.2d at 435. We note at the outset that the principal question does not, perhaps, concern liability itself but rather remedy. We say this, because the prospect of liability under federal antitrust law was at least a factor in inducing defendants to acquiesce in what amounts to substantial injunctive relief in exchange for the foreclosure to class members of claims for relief in damages. We say “perhaps,” however, because the McCarron-Ferguson defense, see supra at 3747, was still outstanding at the time of settlement. But the main question concerns the role that a potential claim for damages relief did play or should have played in the litigation strategy of class counsel.
As the district court correctly observed, in order to obtain relief in damages, class members must prove “injury in fact,” see J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787, 791-92 (5th Cir.1983), by way of demonstrating that the insurance purchased from the defendant insurance companies either cost more or was of less value than insurance otherwise available to them absent the alleged anticompetitive activity. Even though the aggregated damages, as appellants point out, might be enormous,
We also referred to the possibility of derivative damages, specifically in terms of the “over $19 million” in advertising revenues it is estimated the Associations will obtain from other advertisers “in the next five years alone.” 706 F.2d at 435. The district court thought this derivative claim worthless, since N.Y. Not-for-Profit Corp. Law § 623(a) (McKinney 1970) requires that such an action be brought by at least five percent of any class of members.
Significantly, however, neither below nor on this appeal have appellants advanced any data that would lead us to think that an assertion of this derivative claim could be litigated successfully; appellants have failed to utilize the opportunity afforded by this court’s previous remand to produce “cogent factual objections” to the foreclosure of derivative damages claims on behalf of the Associations. However tantalizing the prospect of a derivative claim for lost revenues may be when expressed as a generality, in the absence of data articulating the claim with specificity, the district court’s approval of a settlement foreclosing to class members the right to bring a derivative action must be affirmed.
In doing so, we note that the very nature of a derivative claim largely mitigates whatever threat may be posed by the settlement’s foreclosure of the right of class members to bring a claim on behalf of the Associations against the- defendants because the nearly 3,000 members of the Associations who have opted out of the current lawsuit remain eligible to vindicate injury suffered by the Associations as a result of defendants’ alleged illegalities, notwithstanding the district court’s approval of the settlement. It is perhaps significant, however, that as yet no one has attempted such a derivative action.
Finally, we called on the district court to examine Copitka v. Colonial Penn Group, Inc., No. 442574 (Cal.Super.Ct. San Diego Cty.1979), a case settled for $500,000 in the heat of the publicity surrounding the soon-to-be-terminated relationship between CPG and the Associations. We agree that the case is irrelevant to the issues in this federal antitrust action.
Finding no viable federal antitrust claim for damages is not, of course, to say that there is no state claim for fraud or breach of fiduciary duty of sufficient viability to render unfair and unreasonable a settlement foreclosing such a claim. That determination, of course, is a matter for the state court, which has yet finally to act. The parties’ settlement is conditioned upon approval of both the state court and the federal court, so that our judgment affirming approval of the settlement is necessarily subject to the state court’s approval but we make it so subject, in any event.
The second factor that we asked the district court to examine is “the negotiating process, examined in the light of the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.” 706 F.2d at 433. The district court’s analysis of these issues on remand is somewhat unresponsive. Although, as previously mentioned, the district court attests “to the high professional character of [plaintiffs’ attorneys’] work,” adding that “[t]here has never been the slightest hint in the conduct of plaintiffs’ attorneys that they were willing to sacrifice legitimate claims for an easy settlement,” 588 F.Supp. at 1058, we had hoped for more analysis, especially given the tem
Despite the limited assistance from the district court, however, we have been enlightened by the briefs and record on appeal. They indicate an early fruitless round of settlement negotiations in 1979, at which time the Associations began to change the structure of its ties to CPG in a manner directly responsive to allegations made in the state and federal court complaints. Of course, as the objectors suggested in their offer of proof to the district court, no one can be certain whether the decision to separate the Associations from CPG stemmed principally from this lawsuit, or from the pendency of other litigation coupled with investigations by the United States Postal Service and the Securities and Exchange Commission, or from what appellants have termed “a deluge of attendant unfavorable publicity.” We do know, however, that this litigation commenced and was proceeding at pace with the development of the record to which we have alluded above — a significant fact, since it is immaterial as a matter of law whether there were factors involved in the agreement of September 1980 other than the lawsuit. One never can tell the exact motivations of the parties in reaching a voluntary agreement, but it is apparent that we were under a misimpression that the issues addressed in the lawsuit settlement, because resolved subsequent in time to the voluntary agreement, were not a causative factor or a catalyst in bringing about the voluntary agreement. The likelihood that the voluntary agreement might have followed logically, if not chronologically, from litigation directed toward a judicially imposed resolution of the dispute cannot be overlooked, since it is clear that the Associations on the one hand and Leonard Davis and CPG and related companies on the other desired to forestall further unfavorable publicity by “voluntary” agreement.
Of most importance, the district court has made a finding not only that “there was a long and conscientious struggle by the attorneys for both plaintiffs and defendants to achieve an honorable and realistic disposition of this important case,” 588 F.Supp. at 1061, but that “[t]he attack mounted by plaintiffs succeeded” as “[f]ew class actions have ever succeeded in altering commercial relationships of such magnitude,” id. at 1052. On this record, we cannot say that these findings are clearly erroneous, nor do we think it would be prudent judicial administration to remand for further findings in this respect. The experience of counsel and the vigor with which the case was in fact prosecuted indicate that the negotiation process in general was aboveboard, at arm’s length, and non-eollusive. And once we treat the agreement of September 1980 as caused in substantial part by the suit(s), we cannot ignore the fact that under the “voluntary” agreement of September 1980 CPG agreed to pay the Associations a total of $6.86 million and to spend an additional $4.5 mil
We come finally to the point that, unfortunately perhaps, constitutes the principal thrust of this appeal, namely, that the attorneys’ fees agreed upon in the settlement were negotiated simultaneously with issues on the merits, thereby tainting the settlement. Cf. Barnett v. Pritzker, 73 F.R.D. 430, 432 (S.D.N.Y.1977) (viewing class action defendant’s presettlement arrangement to pay plaintiff’s attorneys’ fees in a definite amount as potentially collusive); City of Philadelphia v. Chas. Pfizer & Co., 345 F.Supp. 454, 471 (S.D.N.Y.1972) (expressing concern over simultaneous negotiations for class members and fees). See generally Developments in the Law— Class Actions, 89 Harv.L.Rev. 1318, 1608 & n. 132 (1976). Appellants argue further that long after agreement on fees had been reached there were settlement drafts and correspondence indicating that negotiations were continuing. And they emphasize that they pressed without success for discovery in this area following remand by this court to the district court. Appellees, in response, assert that fees were discussed only after a “framework of settlement” on the merits had been agreed upon, and that documents in the state court proceeding— now a part of the record in this case on appeal — are sufficient to support this position without additional discovery.
The key to appellants’ claims are statements made to the state court referee by Mr. Rosdeitcher, counsel for CPG, that fees had been discussed during the course of the settlement discussions. Mr. Rosdeitcher, when asked how the number of $2.325 million came about, testified that:
This was a negotiated figure. During the course of the settlement discussions we were asked whether, among other things, as part of the settlement, we would agree not to oppose a fee of a certain size. And various numbers I can’t remember the progression of the numbers, various numbers were discussed.
When asked over what period of time the negotiations took place, Mr. Rosdeitcher responded, “I would say there were two periods ... of settlement discussion.” He then stated that the first discussion of settlement, which included discussion about both the entire settlement and the entire counsel fees, occurred in 1979, when evidently a claim was made for $4 million in attorneys’ fees. Under further questioning, Mr. Rosdeitcher testified that in early 1980, CPG would probably not have opposed a sum of $1 million, while the other side was talking about $4 million. He testified before the referee that “through the period in early 1980, we came to an agreement as to the number we would not oppose.” Appellants claim that such testimony proves the occurrence of a simultaneous discussion of merits and fees sufficient to taint the entire settlement.
Appellees’ response is that, when read in context, Mr. Rosdeitcher’s testimony does not support appellants’ claim. Referring to a transcript of the hearing before the referee, appellees point out that during an early round of settlement negotiations in 1979, defendants were asked whether they would agree not to oppose a fee of $4 million. The CPG people responded that they would not accept any such proposal, whereupon the discussions broke off. In the latter part of 1979 and continuing on into 1980, settlement discussions began anew and a framework of settlement was agreed upon orally. Furthermore, in an affidavit submitted to the state court and now included in our record on appeal, counsel for CPG states that only after the merits of the settlement were accepted in principle did CPG enter into negotiations concerning the maximum fee that it would not oppose, and only at the conclusion of those negotiations did it agree to accept a fee application not in excess of $2.325 million. Affidavits filed in the state court on behalf of the Association and the plaintiffs support the CPG statement — in effect, that only certain minutiae were left for resolu
We agree. This and other courts have previously expressed concern over the award of attorneys’ fees in class action settlements. See, e.g., Prandini v. National Tea Co., 557 F.2d 1015, 1020-21 (3d Cir.1977); Grinnell I, 495 F.2d at 468-74. Sharing this concern, we nevertheless find no reason to disturb the district court’s determination that the conduct of the parties leading to agreement on attorneys’ fees was proper. Here, in contrast to the circumstances in Prandini, there is no issue involving allocation of a fund between class damages and attorneys’ fees or even a separate award. Instead, the discussion concerned the payment of attorneys’ fees alone, presumably in anticipation of the “relief” that plaintiffs would obtain as a result of defendants’ agreement of September 1980. Also in contrast to Prandini, the course of negotiations on the settlement in general reflects the absence of a “sweetheart” relationship between negotiating parties, as evidenced by the combativeness of deposition testimony, see supra at 898-899, and by the averment, supra at 904, that the earlier fee negotiations broke off when plaintiffs pressed for a fee considered to be too high. Moreover, as the court in Prandini recognized, “with the increasingly heavy burden upon the courts, settlements of disputes must be encouraged.” 557 F.2d at 1021. Absent special circumstances, such as those in Prandini, the negotiation of attorneys’ fees cannot be excluded from this principle. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 453 n. 15, 102 S.Ct. 1162, 1167 n. 15, 71 L.Ed.2d 325 (1982); cf. Shlensky v. Dorsey, 574 F.2d 131, 150 (3d Cir.1978) (refusing to require that approval of damage aspect of settlement precede consideration of attorneys’ fees). We do not find such special circumstances here.
Two remaining questions may be dealt with summarily. First, should the Associations, which are indeed made up of the members of the plaintiff class, be required to pay any part of the settlement?
On further consideration, we agree. The similarity between this case and Shlensky, 574 F.2d at 150, is instructive. In Shlen-sky, plaintiffs’ derivative action on behalf of the Gulf Oil Corporation sought, inter alia, recovery of corporate funds illegally expended in certain election campaigns. The parties agreed to a stipulated settlement that included an agreement by Gulf to reimburse plaintiffs’ attorneys and accountants for up to $600,000 in fees and $25,000 in expenses. On appeal from the district court’s approval of the settlement, the Third Circuit rejected the objector’s claim that Gulf’s agreement to pay plaintiffs’ fees and expenses contributed to a settlement that was unfair and unreasonable because Gulf would be left without a net benefit. In so doing, the court found nothing improper in Gulf’s agreement to pay fees and expenses totaling $625,000, where as a result of the settlement Gulf’s monetary benefit alone would total $2,875,-000.
Here, as in Shlensky, a party purportedly harmed by defendants’ allegedly illegal conduct agreed to pay a part of plaintiffs’ attorneys’ fees. In Shlensky, the court found reasonable Gulf’s assumption of $650,000 in plaintiffs’ fees and expenses in light of Gulf’s net gain of $2,875,000 from the settlement. Id. Here, where the Associations’ contribution of several hundred thousand dollars to plaintiffs’ fees and expenses is part of a settlement whereby CPG will pay to or spend on behalf of the Associations a total of over $11 million, see supra at 903-904, the contribution is a fortiori reasonable.
Moreover, the settlement brings to the Associations substantial nonmonetary benefits; it is quite evident from the affidavit filed by Cyril F. Brickfield, the Executive Director of the Associations and a party defendant to this action, that the Associations were desirous of ending the litigation as well as terminating the relationship with CPG, because it was interfering with the conduct of business of the Associations, was a cloud on their reputations and was discouraging voluntary service leaders as well as professional staff. The Brickfield affidavit points out that without the Associations’ participation in the fee provision an agreement would not have been reached; and had the agreement failed, the Associations would have been faced with legal fees in further defense of the suit, as well as the other costs inherent in litigation. We think that these considerations justify the payment of fees by the Associations, but not with the bonus multiplier that was applied by the district court; we therefore reduce the attorneys’ fees payable by the Association to $252,683.
For the reasons stated in the district court opinion, 588 F.Supp. at 1059-60, we agree that the award of attorneys’ fees and costs may otherwise stand.
Settlement as modified approved, subject to approval of the state Supreme Court in Conway v. Davis. No costs to any party.
. Mr. Stone is a lawyer and sometime consumer advocate who formerly served as Assistant District Attorney in New York County, Chief of the Criminal Court Bureau of that office and Judge of the Criminal Court of the City of New York.
. It is because of, not despite, our belief in deference to the discretion of the district court that we have referred to the record in explanation of the district court that we have referred to the record in explanation of the district court’s finding that class representation was adequate, given the district court’s rather sketchy treatment of client-counsel relations that many,
. We find, however, not altogether irrefutable the district court’s conclusion that comparing loss ratios could not serve as a method of determining damages in this case. Prudential’s willingness to utilize a loss ratio over 14% lower than CPG’s average previous loss ratio obviously reflects a commitment prospective in nature, and to that extent is irrelevant to proof of damages here. It is possible, however, that the Prudential loss ratio was not determined whimsically but was projected from data that would form much of the factual basis for the antitrust claims at issue here. A demonstration, however, of the extent to which Prudential’s determination of a loss ratio might reveal a method of structuring what to lay persons seems an intimidating mass of data was a task for appellants, not the district court — a task appellants failed to perform. We emphasize the difference between supporting a claim for the relevance of data and supporting a claim on the basis of specific data. Because appellants failed to do the former, the district court was well within its discretion to discount the prospect of the latter.
Similarly, we can agree with the district court that a theory of unjust enrichment is inappropriate in proving damages for an antitrust violation, 588 F.Supp. at 1056-57, without rejecting the possibility that, as in Zeller v. Bogue Elec. Mfg. Co., 476 F.2d 795, 802 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973), CPG’s excess gain might be found the most effective way to measure plaintiffs’ loss. But appellants’ inability to justify advancing litigation to a stage where that issue would emerge makes the point moot.
. In light of Judge Mansfield’s vigorous dissenting opinion, we wish to make it clear that we view the viability of class claims for damages solely from the standpoint that they are claims for federal antitrust violations and lost advertising revenues. As such for damage purposes we agree with the district judge that the claims had no viability and rather than be "potentially worth many millions of dollars,” as Judge Mansfield suggests, and as our first opinion thought possible, it had no worth. This is not to express any opinion on the value, if any, of the state claims, as we say in the text at 3761. Moreover, it is not as if no monetary recovery were obtained in the settlement; as we pointed out, CPG agreed in the "voluntary" agreement of September 1980 to pay the Associations a total of $6.86 million and to spend an additional $4.5 million to promote membership in the Associations.
. It may be, as Judge Mansfield suggests, that it would be wise not to have the subject of attorneys’ fees agreed upon but "be left to the court for determination after its independent review and approval of a settlement____’’ (dissenting op., at 909). But where, as here, the amount of the fees is important to the party paying them, as well as to the attorney recipient, it seems to the author of this opinion that an agreement “not to oppose” an application for fees up to a point is essential to completion of the settlement, because the defendants want to know their total maximum exposure and the plaintiffs do not want to be sandbagged. It is difficult to see how this could be left entirely to the court for determination after the settlement.
I note with interest Judge Newman’s doubts about a defendant's “clear sailing” clause and the distinction that he draws between such a clause and a plaintiffs "ceiling” clause. In my view, as a practical matter, I believe it a distinction without a difference.
. According to the terms of the settlement, the defendants are not to oppose plaintiffs' application for attorneys’ fees and expenses not in excess of $2,325 million. Of those fees and expenses not in excess of $1 million, CPG is to pay 90% and the Associations the remaining 10%. Of any fees and expenses in excess of $1 million, CPG is to pay 70% and the Associations the remaining 30%. The plaintiffs did in fact apply to the state court referee, as well as to the district court, for the full $2,325 million, and both the referee and the district court approved the application, the district court approving the application again on remand, 588 F.Supp. at 1061.
. In the previous appeal, we incorrectly describe the magnitude of the bonus approved by the referee and the district court as applying a multiplier of two to the average hourly rate of $120. The district court informs us, 588 F.Supp. at 1059, that a multiplier of 1.685 more accurately reflects the bonus over the average hourly rate, given the 10,282.75 hours submitted by plaintiffs’ co-counsel to justify an application for $2,085,901 in fees.
. We arrive at this figure by calculating, according to the agreed upon contribution formula, supra note 4, the Associations’ share of plain-' tiffs’ requested fee of $2,085,901 to be $425,700, and then reducing it by a divisor of 1.685. Because CPG’s contribution is, of course, unaffected by the elimination of the multiplier as applied to the Associations’ contribution, the effect of the foregoing modification is a reduction of plaintiffs’ fee award from $2,085,901 to $1,912,-814. The net result is that CPG’s contribution to plaintiffs’ fees remains at $1,660,131, while the Associations' contribution is reduced to $252,-683.