In Re: Veritas Software Corp Securities Litigation

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3627
IN RE: VERITAS SOFTWARE CORP. SECURITIES LITIGATION
Peter A. Spitalieri, Trustee u/t/d 06/10/88;
771 Freedom Street LP, Appellants
(Pursuant to Fed.R.App.P. 12(a))
On Appeal From the United States District Court
for the District of Delaware
(D.C. Civil No. 1-04-cv-00831)
District Judge: Honorable Sue L. Robinson
Submitted Under Third Circuit LAR 34.1(a)
September 30, 2009
Before: MCKEE, Chief Judge, CHAGARES, and NYGAARD, Circuit Judges.
(Filed: October 4, 2010)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
The appellants Peter A. Spitalieri and 771 Freedom Street LP purport to be
members of a class which settled a securities fraud class action lawsuit with the defendant
Veritas Software Corp. The appellants are seeking reversal of the District Court’s
approval of an award of 30% of the settlement fund as attorneys’ fees to the attorneys
representing the class. We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts.
On July 7, 2004, the plaintiffs commenced a class action securities lawsuit against
Veritas arising out of a press release that allegedly contained misleading information
regarding the company’s revenue and earnings for the second quarter of that year. On
March 3, 2005, the District Court appointed the lead plaintiffs, Tay Siew Choon and
Mark Leonov, for the class and approved their selection of class counsel.
In August 2006, the case was referred to mediation. After almost two more years
of mediation and negotiation, on April 8, 2008, class counsel reached a settlement
agreement in the amount of $21.5 million with Veritas. The settlement was given
preliminary approval by the District Court on April 16. As part of the preliminary
approval, the District Court directed that Notice be sent to all ascertainable class members
by April 30. The Notice stated, inter alia, that class counsel “intend to apply to the Court
for an award of attorneys’ fees of no more than thirty percent (30%) of the Settlement
Fund, plus reimbursement of costs and expenses of up to $650,000, including an award of
up to $15,000 to each lead plaintiff pursuant to the Lead Plaintiff Expense Application.”
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Joint Appendix (“JA”) 5. More than 220,000 Notices were sent out to known class
members, and the Notice was published in Investor’s Business Daily and Bloomberg
News Wire Services. The Notice explicitly stated that any objection to the settlement or
fee application had to be made to the District Court by June 30, 2008. As of June 30, no
class member filed any objection.
Pursuant to the instructions of the District Court, on July 24, 2008, class counsel
formally filed a fee application seeking 30% of the settlement fund. In support of the
application, class counsel filed a brief and declaration setting forth a detailed, itemized
breakdown of the work performed, including 8200 hours of legal work and $600,000 of
advanced costs. Class counsel’s lodestar multiplier for this work was $4,223,458.00, for
a multiplier of 1.52.
On July 29, 2008, more than four weeks after the deadline for filing any objection
to the fee application, the appellants filed their Objection. This Objection did not address
the substance of the fee application, but instead accused the two lead plaintiffs of being
unsophisticated and easily manipulated by class counsel, and made a series of claims
about what the appellants would have done differently had they been the lead plaintiffs.
Two days later, on July 31, the District Court held the previously-scheduled final fairness
hearing. At the hearing, class counsel made a presentation in support of the settlement
agreement and fee application. Counsel for the appellants also appeared and argued as to
the merits of their Objection. At the conclusion of the hearing, the District Court
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approved the settlement agreement and fee application, noting that “I certainly find that
the record more than adequately demonstrates that there was appropriate notice to the
class and that the proposed settlement is fair, reasonable and adequate . . . .” JA 79.
With regard to the appellants’ objection, the District Court denied it as untimely,
noting that the objection was filed well after the deadline for filing such an objection, and
that the objection failed to address the substance or detail of the fee application itself. JA
80-81. The District Court entered a final judgment approving the settlement and fee on
August 6, 2008. The appellants filed a timely Notice of Appeal on August 22, 2008.
II.
This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 to review a
district court’s order awarding attorney’s fees to class counsel.1 A district court’s award
1
The appellees claim that the District Court lacked jurisdiction to decide this issue,
and that we lack jurisdiction on appeal, because the appellants have not shown that they
are in fact members of this class. They challenged the appellants’ standing before the
District Court in a hearing. In response, the appellants submitted some sort of
documentation (which the District Court did not enter into the record) to the District
Court, which then, without explicitly issuing a holding as to standing, proceeded to the
issue of the timeliness and substance of the challenge.
This Court has previously observed that in certain circumstances, the District
Court may review the reasonableness of an award of attorneys’ fees in a class action
lawsuit, even in the absence of a challenge. In re Cendant Corp. PRIDES Litig., 243 F.3d
722, 730-31 (3d Cir. 2001). This is because of the unique fiduciary nature of the federal
courts system over the award of attorneys’ fees in class action cases. The Court of
Appeals for the Ninth Circuit has characterized challenges to attorneys’ fees in class
action matters as “but an ancillary matter over which the district court retains equitable
jurisdiction.” Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir.
1999).
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of attorney’s fees is reviewed for abuse of discretion. In re Cendant Corp. PRIDES Litig.,
243 F.3d 722, 727 (3d Cir. 2001). “We refrain from substituting our judgment for that of
the District Court insofar as its holding is reasonable and supported by the evidence.” In
re Orthopedic Bone Screw Prods. Liability Litig., 246 F.3d 315, 320 (3d Cir. 2001). We
do “not disturb an exercise of discretion ‘unless there is a definite and firm conviction
that the court below committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors.’” Id. (quoting Hanover Potato Prods., Inc. v.
Shalala, 989 F.2d 123, 127 (3d Cir. 1993) (quotation marks omitted)).
III.
The appellants first claim that the District Court abused its discretion in
determining that reasonable notice had been given to all class members. The Notice
contained specific information about the total amount of the class settlement ($21.5
million), the maximum percentage of the total amount class counsel would seek as
attorneys’ fees (30%), and the fees sought for costs and expenses as well as special
compensation to the lead plaintiffs. The Notice also specifically provided that any
Here, the issue of standing was raised before the District Court, and the District
Court proceeded to the substantive issue. Whether the District Court believed it had
standing because it accepted the submitted documents as proof of class membership, or
whether the District Court was exercising its equitable jurisdiction over the award of
attorneys’ fees to class counsel is immaterial for our purposes. The District Court had
jurisdiction to determine the reasonableness of attorneys’ fees, and we have jurisdiction
over the District Court’s decision pursuant to 28 U.S.C. § 1291.
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objection to the amount of attorneys’ fees had to be filed in District Court prior to June
30, 2008. The appellants do not dispute that they received this Notice.
“In class actions, courts have equitable powers to manage the litigation in order to
promote judicial economy and fairness to litigants.” De Asencio v. Tyson Foods, Inc.,
342 F.3d 301, 313 (3d Cir. 2003). These powers include the power to set reasonable
deadlines for pleadings or other documents that must be filed with the court. See
generally In re Orthopedic Bone Screw Prods. Liability Litig., 246 F.3d at 321.
In this case, the District Court directed that 220,000 Notices be sent out to all
known class members, as well as that notice be given by publication in two prominent
business publications. The District Court ordered that all Notices be sent by April 30, and
that anyone objecting would have until June 30 to object to the amount of the attorneys’
fees. The appellants did not file their objection to the award of attorneys’ fees until July
29, over four weeks after the deadline set by the District Court.
The District Court held that the appellants’ challenge to the award of attorneys’
fees was untimely. The appellants had at least 60 days to file their challenge within the
period set forth by the District Court, but they failed to do so, instead waiting until a few
days before the final settlement fairness hearing was held. The Notice, as directed by the
District Court, provided all material information to all known members of the class,
including the information regarding the amount of the attorneys’ fees. The District
Court’s order of notice and the time limit contained therein struck an adequate balance
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between giving all class members information and notice of the settlement and attorneys’
fees award, and serving the efficiency of the judicial system by ensuring the litigation
continued to move forward in an expeditious manner. After reviewing the manner in
which notice was given, and the manner in which the appellees waited until the eve of the
settlement fairness hearing to object to the fee, we are not left with a definite and firm
conviction that the District Court committed a clear error of judgment and we hold that
the District Court did not abuse its discretion in holding that the appellants’ challenge to
the award of attorneys’ fees was untimely.
We turn to the appellants’ contention that the District Court abused its discretion in
the approval of class counsel’s fee request. While the 30% fee is admittedly large, the
District Court took into account that class counsel spent four years, and thousands of
hours of attorneys’ labor, litigating this case. The final lodestar multiplier of 1.52 was
well within the range of attorneys’ fees awarded and approved by this Court. See, e.g., In
re Cendant Corp., 243 F.3d at 742 (holding that a lodestar multiplier of three would be
reasonable and appropriate); In re Prudential Co. Am. Sales Practice Litig. Agent Actions,
148 F.3d 283, 341 (3d Cir. 1988) (“Multiples ranging from one to four are frequently
awarded in common fund cases when the lodestar method is applied.” (citation and
quotation marks omitted)). After a thorough review of the record, we are satisfied that
the District Court carefully considered the relevant factors and determined that class
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counsel’s fee request was reasonable.2 We hold that the District Court did not abuse its
discretion in approving this fee request.
IV.
For these reasons, we will affirm the order of the District Court.
2
We also note that, while certainly not dispositive, not a single other member out
of the hundreds of thousands of known class members in this litigation objected to the
award of attorneys’ fees.
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