2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-8-2009

In Re: Insurance

Precedential or Non-Precedential: Precedential

Docket No. 07-1759

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Recommended Citation

"In Re: Insurance " (2009). 2009 Decisions. Paper 568.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 07-1759, 07-1763, 07-1769, 07-1779,

07-1786, 07-1793, 07-1796, 07-1826,

07-2935, 07-2957, 07-3037, 07-3038,

07-3039, 07-3040, 07-3041, 07-3042, and 07-3687

 

IN RE: INSURANCE BROKERAGE

ANTITRUST LITIGATION (MDL No. 1663)

Shapiro & Lodwick Co. LPA,

Sports & Spine Physical Therapy Inc.,

Irene Pekoe, Hoffman Legal Group, LLC,

Lacy Redd and Cross & Sir, Objectors,

 Appellants, No. 07-1759

Romero General Construction Corporation, Objector,

 Appellant, No. 07-1763

Dan C.D. Sturdevant, Objector,

 Appellant, No. 07-1769

Van Enterprises, Inc., Objector,

 Appellant, No. 07-1779
2

Class Members Iaad O Inc., Trustee of

8 Pacific Street Trust and Zorkess LLC,

 Appellants, No. 07-1786

Emerald Financial Group, Inc., Objector,

 Appellant, No. 07-1793

Palomar Grading and Paving, Inc., Objector,

 Appellant, No. 07-1796

Harold Folsom Jensen, Objector,

 Appellant, No. 07-1826

Van Enterprises, Inc., Objector,

 Appellant, No. 07-2935

Class Members Iaad O Inc., Trustee of

8 Pacific Street Trust and Zorkess LLC,

 Appellants, No. 07-2957

Shapiro & Lodwick Co. LPA, and

Sports & Spine Physical Therapy, Inc.,

 Appellants, No. 07-3037
3

Lacy Redd and Cross & Sir,

 Appellants, No. 07-3038

Irene Pekoe and Hoffman Legal Group, LLC,

 Appellants, No. 07-3039

Romero General Construction Corp.,

 Appellant, No. 07-3040

Emerald Financial Group, Inc.,

Palomar Grading and Paving, Inc.,

and Harold Folsom Jensen,

 Appellants, No. 07-3041

Dan C.D. Sturdevant,

 Appellant, No. 07-3042

Van Enterprises, Inc.,

 Appellant, No. 07-3687

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 04-cv-05184)

District Judge: Honorable Garrett E. Brown, Jr.

 
4

Argued April 21, 2009

Before: SCIRICA, Chief Judge, FISHER

and GREENBERG, Circuit Judges.

(Filed: September 8, 2009)

Edward F. Siegel

27600 Chagrin Boulevard

Suite 340

Cleveland, OH 44122

Attorney for Appellants, Shapiro & Lodwick Co.,

Sports & Spine Physical Therapy Inc., Irene Pekoe,

Hoffman Legal Group, Lacy Redd and Cross & Sir

Edward W. Cochran

Cochran & Cochran

20030 Marchmont Road

Shaker Heights, OH 44122-0000

Attorney for Appellants, Irene Pekoe and

Hoffman Legal Group

N. Albert Bacharach

115 Northeast 6th Avenue

Gainsville, FL 32601-6592

Attorney for Appellants, Lacy Redd and Cross & Sir

Andrea J. Lawrence

Cohen, Tauber, Spievack & Wagner LLP

420 Lexington Avenue, Suite 2400

New York, NY 10170

Attorney for Appellants, Romero General
5

Construction Corp., Emerald Financial Group,

Inc., Palomar Grading and Paving, Inc. and

Harold Folsom Jensen

Kenneth E. Nelson

Nelson Law Firm, PC

1100 Main Street, Suite 2900

Kansas City, MO 64105

Stephen Tsai

991 U.S. Highway 22 West, Suite 102

Bridgewater, NJ 08807

Attorneys for Appellant, Dan C.D. Sturdevant

Howard J. Bashman, Esq. (Argued)

Law Offices of Howard J. Bashman

2300 Computer Avenue, Suite G-22

Willow Grove, PA 19090

Dennis D. Gibson

Gibson, McClure, Wallace & Daniels, LLP

8080 North Central Expressway

Suite 1300, L.B. 50

Dallas, TX 75206-1838

Ethan L. Shaw

Moore Landrey LLP

1609 Shoal Creek Boulevard, Suite 100

Austin, TX 78701-1054
6

Alani Golanski

Weitz & Luxenberg

700 Broadway 

New York, NY 10003

Attorneys for Appellant, Van Enterprises, Inc.

John J. Pentz, III (Argued)

Class Action Fairness Group

2 Clock Tower Place, Suite 260G

Maynard, MA 01754

Edward F. Siegel

27600 Chagrin Boulevard

Suite 340

Cleveland, OH 44122

Attorneys for Appellants, Class Members Iaad O, Inc.,

Trustee of 8 Pacific Street Trust and Zorkess LLC

Bryan L. Clobes (Argued)

Ellen Meriwether

Cafferty Faucher LLP

1717 Arch Street, Suite 3610

Philadelphia, PA 19103

Edith M. Kallas

Joe R. Whatley, Jr.

Whatley, Drake & Kallas LLC

1540 Broadway, 37th Floor

New York, NY 10036

Attorneys for Appellees, Opticare Health System,

Sunburst Hospitality, Golden Gate Bridge,
7

Highway and Transportation District,

Redwood Oil Co., Bayou Steel Corp.,

Clear Lam Packaging, Inc., Cellect LLC,

City of Stamford, Connecticut Spring & Stamp Co.,

Eagle Creek, Inc., Comcar Industries, Inc.,

Gateway Club Apartments, Ltd.,

Michigan Multi-King Corp., Robert Mulcahy,

Glenn Singer, Enclave, LLC, Omni Group

of Companies and Class Plaintiffs

Ann M. Ashton

Ralph C. Ferrara

Elizabeth B. Sandza

Dewey & LeBoeuf, LLP

1101 New York Avenue, N.W.

Suite 1100

Washington, DC 20005

Jonathan E. Richman

Dewey & LeBoeuf, LLP

1301 Avenue of the Americas

New York, NY 10019-6092

Attorneys for Appellees, Zurich American

Ins. Co., d/b/a Zurich NA, American Guarantee

and Liability Ins. Co., Assurance Company of

America, Empire Fire and Marine Ins. Co.,

Empire Indemnity Ins. Co., Fidelity and Deposit

Company of Maryland, Steadfast Ins. Co. and

Zurich Financial Services
8

James A. Donahue, III (Argued)

Jennifer J. Kirk

Office of Attorney General of Pennsylvania

Strawberry Square, 14th Floor

Harrisburg, PA 17120

Attorney for Appellees, Commonwealth of

Pennsylvania, Commonwealth of Virginia,

State of Florida, State of California, State of Hawaii,

State of Maryland, Commonwealth of Massachusetts,

State of Texas and State of Oregon

Christopher R. Hunt

Office of the Attorney General of Florida

Department of Legal Affairs

Plaza Level – 01, The Capitol

Tallahassee, FL 32399

Attorney for Appellee, State of Florida

Kathleen Foote

Office of the Attorney General of California

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

Attorney for Appellee, State of California

Rodney Kimura

Office of the Attorney General of Hawaii

425 Queen Street

Honolulu, HI 96813

Attorney for Appellee, State of Hawaii
9

Alan M. Barr

Office of Attorney General of Maryland

Antitrust Division

200 Saint Paul Place

Baltimore, MA 21202

Attorney for Appellee, State of Maryland

Amy L. Nable

Office of Attorney General of Massachusetts

One Ashburton Place

McCormack Building

Boston, MA 02108

Attorney for Appellee, Commonwealth

of Massachusetts

Mark Toby

Bret Fulkerson

Office of the Attorney General of Texas

300 West 15th Street, Floor 9

Austin, TX 78701

Attorney for Appellee, State of Texas

Jennifer L. Gobble

Office of the Attorney General of Virginia

900 East Main Street

Richmond, VA 23219

Attorney for Appellee, Commonwealth of 

Virginia and Attorney General of Virginia
10

Tim Nord

Caren Rovics

Office of the Attorney General of Oregon

1162 Court Street North East

Salem, OR 97301-5938

Attorney for Appellee, State of Oregon

Edwin M. Larkin, III (Argued)

Lina M. Viviano

Christopher J. Paolella

Winston & Strawn

200 Park Avenue

New York, NY 10166

Terrence M. Grimm

Winston & Strawn

35 West Wacker Drive

Chicago, IL 60601

James S. Richter

Winston & Strawn

One Gateway Center, 7th Floor

Newark, NJ 07102

Attorneys for Appellees, Arthur J. Gallagher & Co.,

Arthur J. Gallagher Risk Management Services, Inc.

and Gallagher Benefit Services, Inc.

 

OPINION OF THE COURT

 
11

FISHER, Circuit Judge.

At issue in this consolidated appeal are the standards a

district court applies when deciding whether to certify a

settlement-only class, approve a class settlement, and approve

class counsel’s petition for attorneys’ fees. More specifically,

we are presented with challenges to the District Court’s orders

granting final approval of a $121,800,000 settlement and a

$28,000,000 settlement, as well as to the District Court’s order

approving an award of $29,500,000 for attorneys’ fees and

expenses in conjunction with the larger of the two settlements.

Appellants are members of the settlement class in one or both of

the settlements who objected to various aspects of the settlement

agreements prior to the District Court granting final approval of

those agreements. Appellees are the settling parties, consisting

of the plaintiffs, settling defendants, and intervenor attorneys

general in one settlement, and the plaintiffs and settling

defendants in the other settlement. Because we conclude that

the class certification requirements of Federal Rule of Civil

Procedure 23(a) and (b) were satisfied with respect to both

settlement classes and that both settlements were fair under

Federal Rule of Civil Procedure 23(e), we will affirm the

District Court’s orders granting final approval of both

settlements. We will also affirm the District Court’s order

granting attorneys’ fees because we conclude that the District

Court acted within its discretion in awarding a reasonable fee.

I. Background

The origins of this case date back to October 2004 when

the New York State Attorney General, Eliot Spitzer, filed a civil
Judge Faith S. Hochberg initially presided over the 1

consolidated cases; however, Chief Judge Garrett E. Brown, Jr.

replaced her on January 3, 2007, due to her recusal.

12

complaint against the insurance broker Marsh & McLennan

(Marsh) in New York state court, alleging that Marsh had

solicited fixed bids from insurance companies and had then

received improper payments for directing customers to those

companies. In November 2004, a multi-state group consisting

of twelve attorneys general and several state insurance

departments began investigating the alleged bid rigging and

steering activities of brokers and insurers in the property and

casualty insurance industry. Private parties commenced

numerous putative class actions in federal courts across the

country as well.

On February 17, 2005, the Judicial Panel on Multidistrict

Litigation consolidated these private civil actions from multiple

jurisdictions under 28 U.S.C. § 1407 and transferred the cases

to the United States District Court for the District of New Jersey

for pretrial proceedings. In re Ins. Brokerage Antitrust Litig.,

1

360 F. Supp. 2d 1371 (J.P.M.L. 2005). The plaintiffs claimed

a vast conspiracy between some of the nation’s largest insurance

brokers (the Broker Defendants) and insurance carriers (the

Insurer Defendants) involving bid rigging and allocating or

steering customers to defeat competition in the insurance market

in exchange for high brokerage commissions. The District

Court initially severed the various actions and realigned them

into two consolidated dockets – one consolidated case pertaining

to property and casualty commercial insurance (the Commercial
13

Case) and the other consolidated case pertaining to employee

benefits insurance (the Employee Benefits Case). See In re Ins.

Brokerage Antitrust Litig., 2006 WL 2850607, at *2 (D.N.J.

Oct. 3, 2006).

The plaintiffs in the Commercial Case are a proposed

class of businesses, individuals, and public entities who,

between August 26, 1994 and September 1, 2005, engaged the

services of the Broker Defendants to obtain advice with respect

to the procurement or renewal of commercial property and

casualty insurance and entered into or renewed an insurance

policy with the Insurer Defendants. The plaintiffs in the

Employee Benefits Case are both employers who utilized the

services of the Broker Defendants to obtain group insurance

coverage from the Insurer Defendants for their employees as

part of their employee benefits plans and employees who

obtained insurance from the Insurer Defendants through their

employers’ benefits plans.

In August 2005, the plaintiffs filed separate consolidated

amended complaints in the Commercial Case and in the

Employee Benefits Case. The plaintiffs in the Commercial Case

alleged that “[t]he Broker Defendants and Insurer Defendants

engaged in a combination and conspiracy to suppress and

eliminate competition in the sale of insurance by coordinating

and rigging bids for insurance policies, allocating insurance

markets and customers and raising, maintaining or stabilizing

premium prices above competitive levels.” (Corrected First

Consolidated Am. Commercial Class Action Compl. ¶ 1.) The

plaintiffs in the Employee Benefits case alleged that the Broker

Defendants and Insurer Defendants
Additionally, the employee-plaintiffs in the Employee 2

Benefits Case asserted claims against the Insurer Defendants for

breach of fiduciary duty under the Employee Retirement Income

Security Act of 1974 (ERISA), Section 502(a)(2), 29 U.S.C.

§ 1132(a)(2).

14

“have conspired to manipulate the insurance

market through undisclosed profit-sharing

agreements and kickbacks in an effort to capture

larger market shares and profits to the detriment

of their unwitting clients and insureds. Although

the Broker Defendants are hired to find the best

insurance coverage at the lowest price, the Insurer

Defendants pay the Broker Defendants

undisclosed or inadequately disclosed Contingent

Commissions, Communication Fees, and other

compensation so that the Broker Defendants will

steer their clients to them.”

(Corrected First Consolidated Am. Employee Benefits Class

Action Compl. ¶ 1.)

The plaintiffs in both the Commercial Case and the

Employee Benefits Case brought claims against the Broker and

Insurer Defendants for violating the Sherman Act, 15 U.S.C.

§ 1, the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. § 1962(c)- (d), the antitrust laws of fortyeight states and the District of Columbia, and state common law

duties (i.e., unjust enrichment and breach of fiduciary duty).2

The plaintiffs in both cases sought restitution, compensatory,
15

punitive and treble damages, disgorgement, injunctive and

declaratory relief, and attorneys’ fees and costs.

After the plaintiffs filed their first amended complaints,

the defendants filed motions to dismiss the federal claims in

both cases pursuant to Federal Rule of Civil Procedure 12(b)(6),

arguing that the facts alleged in the complaints were insufficient

to state a cause of action for a Sherman Act or RICO violation.

Almost a year later, on October 3, 2006, the District Court

granted the defendants’ motions to dismiss for failure to state a

cause of action as to the Sherman Act and RICO claims, but did

so without prejudice and gave leave to the plaintiffs to amend

their pleadings. In re Ins. Brokerage Antitrust Litig., 2006 WL

2850607 (D.N.J. Oct. 3, 2006). Subsequently, the plaintiffs

filed a supplemental statement of particularity in each case for

their federal antitrust claims and an amended case statement for

their RICO claims. The defendants renewed their motions to

dismiss these claims pursuant to Rule 12(b)(6). On April 5,

2007, the District Court once again granted the defendants’

motions to dismiss these claims, without prejudice, and gave the

plaintiffs leave to amend their pleadings. In re Ins. Brokerage

Antitrust Litig., 2007 WL 1062980 (D.N.J. Apr. 5, 2007). Not

long thereafter, the plaintiffs filed a Second Amended

Complaint in the Commercial Case and Employee Benefits

Case, and the defendants again renewed their motions to dismiss

the federal claims. On August 31, 2007 and September 28,

2007, the District Court dismissed the Sherman Act claims and

RICO claims in both cases on Rule 12(b)(6) grounds and, this

time, did so with prejudice. In re Ins. Brokerage Antitrust Litig.,

2007 WL 2533989 (D.N.J. Aug. 31, 2007); In re Ins. Brokerage

Antitrust Litig., 2007 WL 2892700 (D.N.J. Sept. 28, 2007).
The Zurich Defendants are a group of insurers 3

comprised of Zurich Financial Services, Zurich American

Insurance Company, Steadfast Insurance Company, Fidelity and

Deposit Company of Maryland, Empire Fire and Marine

Insurance Company, American Guarantee and Liability

Insurance Company, Empire Indemnity Insurance Company, and

Assurance Company of America.

16

A. The Zurich Settlement

In August 2005, the Zurich Defendants were added to the

Commercial Case putative class action. At the same time as the 3

litigation was proceeding, the Zurich Defendants were also the

subject of investigations conducted by various state attorneys

general and state departments of insurance stemming from the

same alleged practices in the marketing and sale of commercial

insurance. On October 14, 2005, the Zurich Defendants and the

plaintiffs entered into a Memorandum of Understanding (MOU),

which set forth the principal terms of a settlement of the claims

against the Zurich Defendants. Specifically, the MOU

established that any claims arising out of transactions with the

Zurich Defendants from August 26, 1994 through September 1,

2005 would be resolved by the settlement and that, in return, the

Zurich Defendants would establish a $100,000,000 settlement

fund for the benefit of the Settlement Class. The Settlement

Class included

“all individuals or entities, who during the

Settlement Class Period, engaged the services of

(i) one of the Broker Defendants or any subsidiary
17

or affiliate of a Broker Defendant in connection

with a Settlement Class Policy Purchase from any

Zurich Insurer, any Insurer Defendant or any

insurance company that is not an affiliate or

subsidiary of a Zurich Insurer, or (ii) any other

broker . . . in connection with a Settlement Class

Policy Purchase from any Zurich Insurer.”

The MOU was subject to the completion of full

confirmatory discovery and the plaintiffs reserved the right to

terminate the MOU if, following completion of the confirmatory

discovery, they reasonably and in good faith did not believe the

terms of the settlement were fair, reasonable, and adequate. The

MOU was also contingent upon the successful resolution of the

ongoing state investigations and the successful negotiation and

execution of a stipulation of settlement between the Zurich

Defendants and the plaintiffs.

On March 20, 2006, the Zurich Defendants reached an

agreement (Multi-State Agreement) with ten states – California,

Florida, Hawaii, Maryland, Massachusetts, Oregon,

Pennsylvania, Texas, Virginia, and West Virginia – which

resolved the investigations of the attorneys general in those

states against the Zurich Defendants. At the same time, the

Zurich Defendants reached a Regulatory Settlement Agreement

with fifteen state departments of insurance, which contained

provisions that mirrored those contained in the Multi-State

Agreement and resolved the investigations of the insurance

departments in those various states against the Zurich
It is unclear from the record which states participated in 4

the Regulatory Settlement Agreement.

The value of private class action lawsuits occurring 5

concurrently with, or following from, state attorney general

investigations has been the subject of scholarly debate. See,

e.g., John H. Beisner, Matthew Shors & Jessica Davidson

Miller, Class Action “Cops”: Public Servants or Private

Entrepreneurs?, 57 Stan. L. Rev. 1441 (2005); “FTC

Workshop,” Class Actions as an Alternative to Regulation: The

Unique Challenges Presented by Multiple Enforcers and

Follow-On Lawsuits, 18 Geo. J. Legal Ethics 1311 (2005).

Critics of concurrent private class action lawsuits and

government investigations, in which private lawyers and

attorneys general work together, claim that the practice may

transform the office of the attorney general into a moneymaking apparatus where private attorneys repeatedly take on

projects with the government in order to gain access to its

investigative findings and succeed in lucrative class action

lawsuits. On the other hand, supporters of partnerships between

attorneys general and private class action attorneys argue that

class action suits fill the gaps resulting from insufficient

18

Defendants. Under the terms of the Multi-State Agreement, the 4

Zurich Defendants agreed to provide $51,700,000 in restitution

to the Settlement Class, which would supplement the settlement

relief to be provided pursuant to any final settlement agreement

reached by the parties and would be distributed to the Settlement

Class in accordance with the plan of allocation set forth in such

a settlement agreement.5
government regulation and enforcement, and help to deter

industry bad behavior. Proponents also claim that working with

attorneys general creates a higher level of political

accountability for private attorneys, and that the partnership

method is an efficient means of sharing information between the

government and the private attorneys.

19

On March 27, 2006, the Zurich Defendants executed a

separate agreement with the attorneys general in the states of

New York, Connecticut, and Illinois (Three-State Agreement),

which resolved the investigations against the Zurich Defendants

in those states. The Three-State Agreement required the Zurich

Defendants to establish an $88,000,000 settlement fund to

provide relief to a group of policyholders specified in the ThreeState Agreement. Any distributions made pursuant to the ThreeState Agreement were to be separate from those made pursuant

to any final settlement agreement reached by the parties and the

Multi-State Agreement.

On July 26, 2006, following the resolution of the state

investigations, the Zurich Defendants entered into a Stipulation

of Settlement with the plaintiffs (Zurich Settlement Agreement).

The terms of the Zurich Settlement Agreement provided that the

Zurich Defendants would pay $100,000,000 to the policyholders

who meet the definition of the Settlement Class; however,

because some of the potential Settlement Class Members were

also eligible to seek relief under the separate Three-State

Agreement, the Zurich Settlement Agreement allowed the

Zurich Defendants to initially create a fund in the amount of

$70,100,000 while designating the remaining $29,900,000 for
As the attorneys general explain, “[m]ost insurance 6

customers structure their insurance coverage in three tiers[:] a

level of self-insurance, a level of primary insurance, and one or

more levels of excess insurance. The class includes those

persons who bought the primary and excess insurance from the

20

policyholders who qualify as Settlement Class Members but opt

to claim reimbursement under the Three-State Agreement

instead of the Zurich Settlement Agreement. Only if the Zurich

Defendants failed to disburse at least $29,900,000 through the

Three-State Agreement (all of which would go to policyholders

who were eligible for relief under the Zurich Settlement

Agreement) would the Zurich Defendants be required to fund

the balance to the Settlement Class fund. Thus, the Zurich

Defendants were required to pay $70,100,000 under the terms of

the Zurich Settlement Agreement and $51,700,000 under the

terms of the Multi-State Agreement for a total fund of

$121,800,000 for the Settlement Class Members, while

$29,900,000 of the amount designated for the Settlement Class

in the MOU would be used to fund the $88,000,000 award

established by the Three-State Agreement.

Under the terms of the Zurich Settlement Agreement,

51.7% of the settlement fund is allotted to Zurich policyholders

who purchased excess casualty insurance during the 2001 to

2004 time period, while Zurich policyholders who purchased

other lines of commercial insurance, or who purchased excess

casualty policies in other time periods, are allotted 33.9% of the

settlement fund, and those Settlement Class Members who are

not Zurich policyholders are allotted 9% of the settlement fund.6
defendant brokers.”

Additionally, a total of 1,067 potential Settlement Class 7

Members filed timely exclusions, opting out of the Zurich

Settlement Agreement.

21

The Zurich Defendants also agreed to separately pay any

administration and distribution costs associated with the Zurich

Settlement Agreement.

On November 8, 2006, the District Court entered an order

preliminarily certifying the Settlement Class and preliminarily

approving the proposed Zurich Settlement Agreement. The

District Court set January 11, 2007 as a deadline for filing any

objections to the Zurich Settlement Agreement and scheduled a

fairness hearing for January 26, 2007. Pursuant to the District

Court’s order, an administrator mailed notice of the proposed

settlement to over 3,790,000 Settlement Class Members and also

published notice of the fairness hearing in multiple periodicals,

including The New York Times, The Wall Street Journal, USA

Today, Business Insurance Magazine, Risk Management

Magazine, and the newspaper with the largest circulation in each

of the fifty states and the District of Columbia. The

administrator also established a website and toll-free number to

provide details of the proposed settlement and offer assistance

to the Settlement Class Members.

A total of fifteen potential Settlement Class Members

filed timely objections to the proposed Zurich Settlement

Agreement. The objections pertained to the sufficiency of the 7
The attorneys general who participated in the Multi-State 8

Agreement filed a motion to intervene in the litigation in support

of the approval of the Zurich Settlement Agreement, and on

September 18, 2006, the District Court granted this motion.

22

notice, scope of the release and bar order, requirements for

submitting claims forms, procedures for requesting exclusion,

Plan of Allocation, class certification, and attorneys’ fees. At

the scheduled fairness hearing before the District Court, eight of

the objectors were represented by counsel; however, Van

Enterprises, Inc. (Van Enterprises), one of the current

appellants, was not among the objectors who appeared before

the District Court, despite having filed a Notice of Appearance.

In addition to Class Counsel, the Zurich Defendants, and eight

of the objectors, a representative from the Office of the Attorney

General of Texas appeared at the fairness hearing on behalf of

the intervening attorneys general.8

On February 16, 2007, the District Court issued an

opinion granting the Zurich Defendants’ and the plaintiffs’

motion for final approval of the settlement and dismissing, with

prejudice, the Zurich Defendants from the litigation. In re Ins.

Brokerage Antitrust Litig., 2007 WL 542227 (D.N.J. Feb. 16,

2007) (Zurich Settlement Final Approval Opinion). In

explaining its decision to grant final approval of the settlement,

the District Court chose not to summarize each of the individual

challenges raised by the objectors, but it did discuss the general

categories of objections that were raised and dismissed each of

these types of objection. After rejecting all of the objections, the

District Court certified the Settlement Class, finding that it met
The plaintiffs asked the District Court to consider only 9

whether the proposed class met the standards set forth in Rule

23(b)(3) and not to consider whether Rule 23(b)(2) was

satisfied.

When these individual amounts are added together, the 10

total is only $29,910,000 and thus is $40,000 short of the

requested fee of $29,950,000. The parties do not address this

discrepancy.

23

all of the requirements of Rule 23(a) and (b)(3), and approved 9

the Zurich Settlement Agreement, finding that all of the fairness

requirements of Rule 23(e) were met.

Additionally, the Zurich Defendants agreed with the

plaintiffs to pay up to $29,950,000 for attorneys’ fees, expense

reimbursements, and incentive awards for the named plaintiffs,

which would not be subtracted from the Settlement Class fund.

The parties also agreed that if the District Court granted less

than the requested fees and expenses or if this amount was later

reduced, the Zurich Defendants – not the Settlement Class

Members – would be entitled to the difference in amount. Class

Counsel filed a motion for an award of fees in the District Court,

requesting that the District Court distribute the $29,950,000 as

follows: “$3,957,000 for reimbursement of litigation expenses;

$150,000 for payment of incentive awards to fifteen Plaintiffs;

and $25,803,000 for attorneys fees incurred in the prosecution

of this litigation.” Various Settlement Class Members filed 10

objections in opposition to the motion for an award of fees. The

objections challenged the value of benefits to Settlement Class
24

Members created by Class Counsel in light of the involvement

of the attorneys general, the inclusion of time spent on nonZurich Settlement matters in the calculation of the lodestar,

Class Counsel’s performance of their gatekeeper function, and

the overall amount of the fees. On June 5, 2007, the District

Court approved the requested fee award, rejecting all of the

objections. In re Ins. Brokerage Antitrust Litig., 2007 WL

1652303 (D.N.J. June 5, 2007) (Zurich Settlement Attorneys’

Fees Opinion).

The following objectors filed timely notices of appeal

from the District Court’s order granting the settling parties’

motion for final approval of the settlement: Shapiro & Lodwick

Co., LPA, Sports & Spine Physical Therapy, Inc., Irene Pekoe,

Hoffman Legal Group, LLC, Lacy Redd and Cross & Sir

(07-1759); Romero General Construction Group (07-1763); Dan

C.D. Sturdevant (07-1769); Van Enterprises, Inc. (07-1779);

Iaad O., Inc. (Trustee of 8 Pacific Street Trust) and Zorkess LLC

(07-1786); Emerald Financial Group, Inc. (07-1793); Palomar

Grading and Paving, Inc. (07-1796); and Harold Folsom Jensen

(07-1826).

The following objectors filed timely notices of appeal

from the District Court’s order awarding attorneys’ fees and

expenses: Van Enterprises, Inc. (07-2935); Iaad O., Inc. (Trustee

of 8 Pacific Street Trust) and Zorkess LLC (07-2957); Shapiro

& Lodwick Co., LPA and Sports & Spine Physical Therapy, Inc.

(07-3037); Lacy Redd and Cross & Sir (07-3038); Irene Pekoe

and Hoffman Legal Group, LLC (07-3039); Romero General

Construction Corp. (07-3040); Dan C.D. Sturdevant (07-3042);
Appellants Shapiro & Lodwick Co., LPA; Sports & 11

Spine Physical Therapy, Inc.; Irene Pekoe; Hoffman Legal

Group, LLC; Lacy Redd; Cross & Sir; Iaad O., Inc.; and Zorkess

LLC jointly filed one appellate brief. In addressing arguments

presented by this group, we will refer to them as the

Iaad/Zorkess objectors. Appellant Van Enterprises submitted its

own appellate brief; therefore, we will identify arguments

presented in this brief by referring to Van Enterprises. The

remaining appellants filed a motion to adopt the briefs submitted

on behalf of the Iaad/Zorkess objectors and Van Enterprises.

The Gallagher Defendants are a group of insurance 12

brokers comprised of Arthur J. Gallagher & Co., Arthur J.

Gallagher Risk Management Services, Inc., and Gallagher

Benefit Services, Inc. The Gallagher Defendants remained

parties to both the Commercial Case and the Employee Benefits

25

Emerald Financial Group, Inc., Palomar Grading and Paving,

Inc., and Harold Folsom Jensen (07-3041).11

Through various consolidations, the appeals of these

objectors from both the District Court’s final approval order and

its attorneys’ fees order have been joined together. Altogether,

there are sixteen consolidated appeals related to the Zurich

Settlement.

B. The Gallagher Settlement

In December 2004, the Gallagher Defendants were added

to the class action litigation. The Gallagher Defendants were 12
Case after the District Court created two distinct dockets for the

class action litigation.

It is unclear from the record whether the Gallagher 13

Defendants entered into similar agreements with other states or

were able to resolve all of the state investigations that were

pending against them through these agreements.

26

also subject to ongoing investigations by state attorneys general

and state insurance departments for possible anticompetitive

activities. On May 18, 2005, the Gallagher Defendants, whose

principal place of business and headquarters are located in

Illinois, entered into an Assurance of Voluntary Compliance

with the Attorney General of Illinois and the Director of the

Illinois Division of Insurance, and a Stipulation and Consent

Order with the Director of the Illinois Division of Insurance.

Under the terms of these agreements, the Gallagher Defendants

voluntarily implemented various business reforms and

transferred $26,962,500 into a fund from which amounts were

distributed to certain qualifying Gallagher customers.

13

In April 2005, the Gallagher Defendants began settlement

agreement negotiations with the plaintiffs and, more than a year

and a half later, on December 29, 2006, the parties entered into

a Stipulation of Settlement (Gallagher Settlement Agreement).

Several amendments to the Gallagher Settlement Agreement

were filed in the following months, one of which included the

submission of a Plan of Allocation. The proposed Gallagher

Settlement Agreement called for the creation of a $28,000,000

settlement fund to be paid to insureds who fell within the
27

definition of the Settlement Class and was intended to “resolve

all claims that have been, or could have been, asserted in this

action by Plaintiffs against the Gallagher Defendants.” The

Settlement Class was defined as “all individuals or entities” who

“purchase[d] or renew[ed] commercial insurance, or reinsurance

thereof, obtained through engaging the services of the Gallagher

Defendants” or any Broker Defendant during the class period,

and “all individuals or entities” that “were employers providing

employee benefits insurance” and employees receiving

“employee benefits insurance” through an employer sponsored

plan that was obtained through the Gallagher Defendants or any

Broker Defendant during the class period. (Gallagher App. 409-

10.) For purposes of allocation, the Settlement Class was

divided into six separate claimant groups:

“Commercial Class members who purchased or

renewed commercial insurance either through a

Gallagher Entity (‘Commercial Direct Claimants’)

or a Commercial Broker Defendant (‘Commercial

Conspiracy Claimants’), Employer members of

the Employee Benefits Class who purchased or

renewed employee benefits insurance either

through a Gallagher Entity (‘Employer Direct

Claimants’) or an Employee Benefit Broker

Defendant (‘Employer Conspiracy Claimants’),

and all Employee members of the Employee

Benefits Class who purchased or renewed

employee benefits insurance either through a

Gallagher Entity (‘Employee Direct Claimants’)

or through an Employee Benefits Broker

Defendant (‘Employee Conspiracy Claimants’).”
28

Thus the claimant groups were categorized based on the type of

insurance involved and whether the insurance was purchased

through the Gallagher Defendants or another Broker Defendant.

Under the Plan of Allocation, the fund was to be distributed

among the claimant groups as follows: 68% to Commercial

Direct Claimants, 13.2% to Commercial Conspiracy Claimants,

3.6% to Employer Direct Claimants, 0.5% to Employer

Conspiracy Claimants, 13.3% to Employee Direct Claimants,

and 1.4% to Employee Conspiracy Claimants.

In addition to establishing a settlement fund, the proposed

Gallagher Settlement Agreement also required the Gallagher

Defendants to make certain changes to their alleged business

practices – such as prohibitions on accepting contingent

compensation, “pay to play” arrangements, “bid rigging”

arrangements, reinsurance leveraging, and inappropriate use of

wholesale insurance brokers – and to make certain disclosures

to customers and implement certain training for its employees.

The Gallagher Defendants also agreed to pay the administration

and distribution costs associated with the Gallagher Settlement

Agreement.

On April 13, 2007, the District Court entered an order

preliminarily certifying the Settlement Class and preliminarily

approving the Gallagher Settlement Agreement. The District

Court set June 29, 2007 as the deadline for the filing of

exclusions and objections to the proposed Gallagher Settlement

Agreement and scheduled a fairness hearing for July 24, 2007.

Pursuant to the District Court’s order, the administrator mailed

notice of the proposed Gallagher Settlement Agreement to over

288,000 potential Settlement Class Members and also published
In addition, the District Court also received 206 timely 14

requests for exclusion from the proposed Gallagher Settlement

Agreement.

29

notice of the Gallagher Settlement Agreement twice in The New

York Times, The Wall Street Journal, and USA Today, once in

Business Insurance Magazine and Risk Management Magazine,

and once in the newspaper with the largest circulation in each of

the fifty states and the District of Columbia. The administrator

also established a website and toll-free hotline to provide

material relevant to the proposed Gallagher Settlement

Agreement.

Only two Settlement Class Members filed objections to

the Gallagher Settlement Agreement. The objections pertained 14

to the amount of the settlement, requirements of the settlement

claim form, the allocation of the settlement, and whether the

requirements of class certification were satisfied. One of the

two objectors, appellant Van Enterprises – who also objected to

the Zurich Settlement – failed to appear at the fairness hearing

despite having filed a Notice of Intention to Appear. The

District Court issued an order on September 4, 2007, granting

the Gallagher Defendants’ and plaintiffs’ motion for final

approval of the settlement and dismissing the Gallagher

Defendants from the litigation with prejudice, determining that

all of the objections lacked merit and concluding that the

Settlement Class could be certified and the Gallagher Settlement

Agreement could be approved consistent with the Rule 23
As in the Zurich Settlement, the plaintiffs asked the 15

District Court to consider only whether the requirements of Rule

23(b)(3) were met.

30

requirements. In re Ins. Brokerage Antitrust Litig., 2007 WL 15

2589950 (D.N.J. Sept. 4, 2007) (Gallagher Settlement Final

Approval Opinion).

Separately, the Gallagher Defendants agreed to pay up to

$8,885,000 for Class Counsel’s attorneys’ fees, litigation

expenses, and incentive awards for each of the twenty-five

named plaintiffs. These fees were not to be deducted from the

$28,000,000 settlement fund. No party objected to the petition

for fees, and the District Court approved it.

Van Enterprises filed a timely notice of appeal from the

District Court’s order granting the motion for final approval of

the settlement (07-3687) and is the only objector that remains in

this appeal.

II. Jurisdiction

The District Court had jurisdiction over the Sherman Act

and RICO claims, which involved federal questions, pursuant to

28 U.S.C. § 1331 and had supplemental jurisdiction over the

state law claims, which arose out of the same common nucleus

of operative facts, pursuant to 28 U.S.C. § 1367. Each of the

three decisions of the District Court that is under consideration

was a final order and we have jurisdiction to review them
We consolidated the appeals from the Zurich Settlement 16

and the Gallagher Settlement for purposes of oral argument and

disposition.

31

pursuant to 28 U.S.C. § 1291. “We review a class certification 16

order for abuse of discretion, which occurs if the district court’s

decision rests upon a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact.” In

re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d

Cir. 2008) (internal quotation marks omitted). “The decision of

whether to approve a proposed settlement of a class action is left

to the sound discretion of the district court.” In re Prudential

Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283,

299 (3d Cir. 1998) (internal quotation marks omitted). We

review a district court’s award of attorneys’ fees for an abuse of

discretion, taking into consideration whether the district court

employed the proper legal standards, followed the proper

procedures, and made findings of fact that are not clearly

erroneous. In re Cendant Corp. PRIDES Litig., 243 F.3d 722,

727 (3d Cir. 2001).

III. Analysis of the Final Approval of the

Settlements and the Award of Fees

We begin our analysis with an overview of the standards

for certifying a settlement class and approving a class action

settlement. Next, we review the District Court’s decisions in

both the Zurich Settlement and the Gallagher Settlement and

consider the arguments that the objectors raise with respect to

each of these decisions. Finally, we provide an overview of the
32

standards for approving an award of attorneys’ fees, and we

review the District Court’s decision granting Class Counsel’s

petition for an award of fees in the Zurich Settlement, taking

into consideration the arguments that the objectors raise on

appeal.

A. Requirements for Approving Class Settlements

In order to approve a class settlement agreement, a

district court must determine that the requirements for class

certification under Federal Rule of Civil Procedure 23(a) and (b)

are met and must determine that the settlement is fair to the class

under Federal Rule of Civil Procedure 23(e). As the Supreme

Court has made clear:

“Confronted with a request for settlement-only

class certification, a district court need not inquire

whether the case, if tried, would present

intractable management problems, for the

proposal is that there be no trial. But other

specifications of [Rule 23] – those designed to

protect absentees by blocking unwarranted or

overbroad class definitions – demand undiluted,

even heightened, attention in the settlement

context.”

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)

(citation omitted). “[I]f a fairness inquiry under Rule 23(e)

controlled certification, eclipsing Rule 23(a) and (b), and

permitting class designation despite the impossibility of

litigation, both class counsel and court would be disarmed.” Id.
33

at 621. Thus, it is important to “apply[] the class certification

requirements of Rules 23(a) and (b) separately from [the]

fairness determination under Rule 23(e).” In re Prudential Ins.

Co., 148 F.3d at 308.

“The requirements of [Rule 23] (a) and (b) are designed

to insure that a proposed class has ‘sufficient unity so that absent

class members can fairly be bound by decisions of class

representatives.’” Id. at 309 (quoting Amchem, 521 U.S. at

621). Under Rule 23(a), the prerequisites to class certification

are:

“(1) the class is so numerous that joinder of all

members is impracticable; (2) there are questions

of law or fact common to the class; (3) the claims

or defenses of the representative parties are

typical of the claims or defenses of the class; and

(4) the representative parties will fairly and

adequately protect the interests of the class.”

Fed. R. Civ. P. 23(a); see Amchem, 521 U.S. at 613. If all of the

prerequisites of Rule 23(a) are satisfied, a class action may be

maintained if the standards set forth in Rule 23(b) are satisfied

as well. Fed. R. Civ. P. 23(b). Rule 23(b)(3) requires “the court

[to] find[] that the questions of law or fact common to class

members predominate over any questions affecting only

individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3); see also Amchem, 521

U.S. at 618 (“Among current applications of Rule 23(b)(3), the

‘settlement only’ class has become a stock device.”). The
34

“[f]actual determinations necessary to make Rule 23 findings

must be made by a preponderance of the evidence. In other

words, to certify a class the district court must find that the

evidence more likely than not establishes each fact necessary to

meet the requirements of Rule 23.” In re Hydrogen Peroxide

Antitrust Litig., 552 F.3d at 320. Accordingly, “[c]lass

certification is proper only if the trial court is satisfied, after a

rigorous analysis, that the prerequisites of Rule 23 are met.” Id.

at 309 (internal quotation marks omitted).

“Even if it has satisfied the requirements for certification

under Rule 23, a class action cannot be settled without the

approval of the court and a determination that the proposed

settlement is fair, reasonable and adequate.” In re Prudential

Ins. Co., 148 F.3d at 316 (internal quotation marks omitted); see

Fed. R. Civ. P. 23(e)(2) (stating that a district court may approve

a proposed settlement “only after a hearing and on finding that

it is fair, reasonable, and adequate”). In Girsh v. Jepson, our

Court articulated nine factors to be considered when

determining the fairness of a proposed settlement:

“‘(1) the complexity, expense and likely duration

of the litigation; (2) the reaction of the class to the

settlement; (3) the stage of the proceedings and

the amount of discovery completed; (4) the risks

of establishing liability; (5) the risks of

establishing damages; (6) the risks of maintaining

the class action through the trial; (7) the ability of

the defendants to withstand a greater judgment;

(8) the range of reasonableness of the settlement

fund in light of the best possible recovery; (9) the
35

range of reasonableness of the settlement fund to

a possible recovery in light of all the attendant

risks of litigation.’”

521 F.2d 153, 157 (3d Cir. 1975) (internal quotation marks and

alterations omitted). “[W]here settlement negotiations precede

class certification, and approval for settlement and certification

are sought simultaneously, we require district courts to be even

more scrupulous than usual when examining the fairness of the

proposed settlement.” In re Warfarin Sodium Antitrust Litig.,

391 F.3d 516, 534 (3d Cir. 2004) (internal quotation marks

omitted).

B. Challenges to the Approval

of the Zurich Settlement

1. The District Court’s Analysis

The District Court granted final approval of the Zurich

Settlement after concluding that the Rule 23 requirements were

satisfied. Specifically, the District Court determined that the

proposed Zurich Settlement Class met the standards established

by Rule 23(a) because the large, nationwide class of plaintiffs

“easily satisfies the numerosity requirement” of subsection

(a)(1); the “many common questions of law and fact” satisfy the

commonality requirement of subsection (a)(2); the claims of the

named plaintiffs are “indistinguishable” from those made on

behalf of the settlement class and “encompass[] identical

allegations” arising “from the same course of action taken by the

Zurich Defendants,” which satisfies the typicality requirement

of subsection (a)(3); and the dual components of the adequacy
36

of representation requirement of subsection (a)(4) are satisfied

because the attorneys representing the named plaintiffs are

“clearly ‘well qualified and experienced class action attorneys,’”

and the interests of the named plaintiffs “are not antagonistic to

those of the absent class members.” Zurich Settlement Final

Approval Opinion at *13-15.

The District Court also concluded that the standards of

Rule 23(b)(3) were met, finding that the predominance

requirement was satisfied due to the “identical claims of both

the named Plaintiffs and the absent class members aris[ing] from

the same set of facts regarding the alleged collusive and

anticompetitive behavior of the Zurich Defendants,” and the

superiority requirement was satisfied because litigating all of

these claims “in one action is . . . far more desirable than

numerous separate actions litigating the same issues.” Id. at

*16. Thus, the District Court concluded that the class

established by the Zurich Settlement Agreement met all of the

requirements of Rule 23(a) and (b)(3). The District Court noted

that Van Enterprises had asserted in its written objection that the

Settlement Class “lacks commonality, typicality, adequacy of

representation and a predominance of common issues,” but the

District Court rejected these contentions because Van

Enterprises “provide[d] no cogent argument or legal basis to

support these assertions, failing to reference a single case, from

this or any other Court, that might explain its allegations.” Id.

at *17.

The District Court also considered the fairness of the

Zurich Settlement Agreement and found that none of the Girsh

“factors suggest[s] that the proposed settlement should not be
37

approved.” Id. at *4. The District Court found that the first five

Girsh factors “overwhelmingly weigh in favor of approval of

[the] settlement.” Id. As to the first factor – complexity,

expense, and likely duration of the litigation – the District Court

determined that “this case involves highly complex legal and

factual issues . . . [that] would undoubtedly [lead to] a costly and

lengthy [litigation] process for all parties” and that “[t]his

proposed settlement provides an immediate benefit to the

Plaintiffs.” Id. Applying the second factor, the District Court

“conclude[d] that the small number of objections by Class

Members to the settlement award, more specifically, to the

calculation of the settlement award and damages resulting from

the conduct of the Zurich Defendants, strongly weighs in favor

of approval.” Id. at *5. The District Court determined that,

under the third factor, the stage of proceedings and the amount

of discovery completed weighed in favor of settlement because,

“[b]ased upon the amount of time Counsel expended in

negotiations and the extent of the discovery process, . . . Counsel

had a thorough appreciation for the merits of the case prior to

settlement.” Id. at *6. With respect to the fourth and fifth

factors, the District Court concluded that the risks of

establishing both liability and damages weighed in favor of

settlement because “[t]his case involves difficult factual and

legal issues which would have translated into protracted

litigation and accumulating expenses, in both time and money.”

Id. The District Court concluded its Girsh analysis by
As we noted in In re Prudential Insurance Co. America 17

Sales Practice Litigation Agent Actions, 148 F.3d 283, 323 (3d

Cir. 1998), depending on the facts of a given case, “it may be

useful to expand the traditional Girsh factors to include, when

appropriate,” additional factors “that bear on the ability to assess

the probable outcome of a trial on the merits of liability and

individual damages,” as well as “the existence and probable

outcome of claims by other classes and subclasses; the

comparison between the results achieved by the settlement for

individual class or subclass members and the results achieved –

or likely to be achieved – for other claimants; whether class or

subclass members are accorded the right to opt out of the

settlement; whether any provisions for attorneys’ fees are

reasonable; and whether the procedure for processing individual

claims under the settlement is fair and reasonable.” The

Prudential factors relevant here weigh in favor of the Zurich

Settlement. For example, class members had a right to opt out,

and some did so, see Zurich Settlement Final Approval Opinion

at *5; the District Court found the claims processing procedure

fair and reasonable, see id. at *10, and we agree; and the

attorneys’ fees awarded in conjunction with the settlement are

reasonable, see infra Part III.D.

38

determining that the final four factors weighed “slightly or

moderately in favor of approval.” Id. at *8.17

Prior to certifying the class and approving the Zurich

Settlement, the District Court addressed objections regarding the

failure to utilize subclasses. Certain objectors claimed that three

subclasses were necessary due to the allocation of funds under
The suggestion was to create three subclasses: Excess 18

Claimants, Non-Excess Claimants, and Conspiracy Claimants.

See supra note 11. 19

39

the Zurich Settlement Agreement, and that each of these

subclasses was entitled to separate representation. The District 18

Court acknowledged that the use of subclasses is appropriate

where members of a class have “interests divergent from the rest

of the class,” but determined that the objectors here “failed to

raise, let alone describe, any divergent or antagonistic interests

between the three groups.” Id. at *18. The District Court also

noted that “[a] class need not be divided into subclasses merely

because different groups have alternative legal theories for

recovery, or because those groups have different factual bases

for relief.” Id. at *17. Therefore, the District Court rejected the

objection.

2. The Objectors’ Arguments on Appeal

On appeal, there are two principal groups of objectors:

Van Enterprises, who submitted a brief on its own behalf, and

the Iaad/Zorkess objectors, who submitted a joint brief on behalf

of several objectors. Van Enterprises presents numerous 19

arguments in its opening brief before this Court. Briefly stated,

Van Enterprises currently challenges the District Court’s

certification of the class, arguing that it failed to rigorously

analyze the Rule 23 requirements and, in particular, that the

Settlement Class is overbroad, resulting in a predominance of

individual issues as opposed to common ones. Van Enterprises
Although Van Enterprises objected to the petition for 20

attorneys’ fees and filed a notice of appeal from the District

Court’s order granting attorneys’ fees, it did not, on appeal, raise

any arguments related to the award of fees.

40

also argues that the named plaintiffs lack standing because they

have not demonstrated an injury in fact. Both Van Enterprises

and the Iaad/Zorkess objectors challenge the District Court’s

failure to utilize subclasses despite the allocation of the

settlement fund to various types of policyholders. The

Iaad/Zorkess objectors also challenge the District Court’s award

of $29,950,000 in attorneys’ fees and expenses.20

a. Failure to Preserve Arguments on Appeal

At the outset, the plaintiffs assert that Van Enterprises

failed to properly preserve its arguments with respect to the

Zurich Settlement. They contend that the arguments Van

Enterprises now raises on appeal were not preserved by Van

Enterprises’ written objection in the District Court, in which

Van Enterprises attempted to merely “incorporate by reference

into its objection every argument raised in every brief,

declaration and exhibit that was submitted in connection with

Plaintiffs’ motion for class certification, as well as the

Defendants’ motion to dismiss.” In other words, the plaintiffs

argue that this “conclusory” written objection “simply cannot

serve to preserve for appeal the sprawling arguments it now

raises concerning certification of the Settlement Class.” The

plaintiffs also point out that “Van failed to attend the Fairness

Hearing, during which it could have elaborated on its cryptic
The fact that Van Enterprises repeatedly refers to 21

documents which the non-settling Broker and Insurer

Defendants in the Commercial Case litigation submitted to the

District Court is troubling. We find it peculiar that Van

Enterprises’ interests are so closely aligned with the non-settling

defendants, but nonetheless we accept these arguments at face

value.

41

arguments made entirely by reference.” Thus, the plaintiffs

contend that the only arguments Van Enterprises preserved for

appeal pertain to the Plan of Allocation and the purported need

for subclasses.

Although Van Enterprises frequently cites submissions

to the District Court in the Commercial Case litigation – instead

of its own written objection – as support for the various

arguments it advances on appeal, Van Enterprises asserts that its

written objection preserved all of these arguments because the

objection “incorporated the motions, responses, briefs,

declarations and exhibits filed by the Plaintiffs and Defendants

concerning class certification of a litigation class.” Van

Enterprises argues that the District Court erred by not

considering these “adversarial motions and briefing for a

Litigation Class despite emphatic requests from the non-settling

Defendants and Van Enterprises.”21

As an initial matter, although Van Enterprises did not

appear at the fairness hearing to argue its objections, its absence

from the hearing did not cause it to forfeit the objections it had

timely submitted to the District Court in written form. Van
42

Enterprises acted in accordance with the notice provided to the

potential Settlement Class Members, which stated that

attendance at the hearing was not necessary so long as an

objection was properly filed with the District Court by the

deadline:

“If you are a Settlement Class Member . . . and do

not exclude yourself from the Settlement Class,

you may object to the Zurich Settlement, any term

of the Zurich Settlement Agreement, the Plan of

Allocation or Plaintiffs’ application for attorneys’

fees and expenses. Such objection must be in

writing and must provide evidence of your

membership in the Settlement Class. The written

objection also should state the specific reason(s),

if any, for the objection, including any legal

support you wish to bring to the Court’s attention

and any evidence you wish to introduce in support

of the objection. A written objection (and any

support for it) must be received by the Court and

the following counsel by no later than January 11,

2007.

* * *

If (and only if) you make a written objection to

the Zurich Settlement as set out above, you may

choose to speak – either in person or through an

attorney hired at your own expense – at the

hearing . . . the Court has set to consider whether

to approve the Zurich Settlement. You are not
43

required to attend the hearing. Lack of attendance

at the hearing will not prevent the Court from

considering your objection.”

(Zurich App. 3077-79.) Thus, while it was necessary for Van

Enterprises to provide the grounds for its objections in writing

in order to preserve its arguments for appeal, it was unnecessary

for it to appear at the hearing.

However, we are not obligated to entertain all of the

arguments that Van Enterprises presently advances. “Absent

exceptional circumstances, this Court will not consider issues

raised for the first time on appeal.” Del. Nation v.

Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006) (citing Harris

v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994)); see also

Salvation Army v. Dep’t of Cmty. Affairs of N.J., 919 F.2d 183,

196 (3d Cir. 1990) (“The matter of what questions may be taken

up and resolved for the first time on appeal is one left primarily

to the discretion of the courts of appeals, to be exercised on the

facts of individual cases.” (internal quotation marks omitted)).

For an issue to be preserved for appeal, a party “must

unequivocally put its position before the trial court at a point and

in a manner that permits the court to consider its merits.” Shell

Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d Cir.

1999). A fleeting reference or vague allusion to an issue will

not suffice to preserve it for appeal, so “the crucial question

regarding waiver is whether defendants presented the argument

with sufficient specificity to alert the district court.” Keenan v.

City of Phila., 983 F.2d 459, 471 (3d Cir. 1992); see also Frank

v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir. 1990)

(“Particularly where important and complex issues of law are
Because Van Enterprises failed to appear before the 22

District Court at the fairness hearing, Van Enterprises forfeited

the opportunity to zealously advocate its objections in person

and expound upon the challenges that it raised in its written

objection. A practical consequence of Van Enterprises’ failure

to appear at the fairness hearing, combined with its submission

of a relatively sparse written objection, is that its grounds for

challenging the approval of the settlement were not welldeveloped and, not surprisingly, were not persuasive to the

District Court.

44

presented, a far more detailed exposition of argument is required

to preserve an issue.”). Thus, the arguments that were properly

preserved for appeal are limited to those which Van Enterprises

presented with at least a minimum level of thoroughness to the

District Court through its written objection and, without the

existence of compelling circumstances, we need not entertain

challenges to the approval of the Zurich Settlement which were

not before the District Court.22

Turning to the substance of Van Enterprises’ written

objection, we are able to discern that Van Enterprises’ principal

challenges to the approval of the Zurich Settlement are that the

Settlement Class is overbroad – which impacts the Rule 23

requirements of commonality, typicality, and predominance of

common issues – and that antagonistic interests among the class

members exist such that, in the absence of separate subclasses,

the adequacy of representation requirement is not satisfied and

the Plan of Allocation is not fair. (Zurich App. 2439.) Van

Enterprises did not offer much support in its written objection
In total, Van Enterprises presented eighteen sub- 23

arguments in its opening brief on appeal. While we have

identified the objections that were preserved, we will not list all

of the current objections that were not preserved.

45

to substantiate its argument that the Rule 23 requirements are

not satisfied, but rather posited that the Settlement Class should

not be certified unless the litigation class can properly be

certified, and thus Van Enterprises asserted that the District

Court needed to consider all of the filings in the class action

litigation that have a bearing on whether certification of the

litigation class is appropriate. Van Enterprises also did not

substantiate its argument that subclasses were needed to ensure

a fair allocation of the settlement fund other than to say that the

Plan of Allocation treats various types of policyholders

differently.

Although Van Enterprises detracts from the credibility

and persuasiveness of its objections by presenting them in such

a conclusory fashion, we nonetheless will credit its explicit

mention of the commonality, typicality, and predominance

requirements of Rule 23(a) and (b), as well as its brief

discussion of the need for subclasses – which touched on both

the adequacy of representation requirement of Rule 23(a) and

the fairness of the Plan of Allocation under Rule 23(e) – and

will consider these specific challenges on appeal. But beyond

these objections, Van Enterprises has forfeited the opportunity

to challenge other aspects of the District Court’s decision to

approve the Zurich Settlement by failing to make any mention

of those arguments in its written objection.23
46

The attorneys general argue that among the issues that

Van Enterprises has failed to preserve for appeal is its challenge

to the named plaintiffs’ standing. The attorneys general assert

that the standing issue “was not addressed in Van’s original

objection. . . . If Van had seriously believed there was an issue

of standing, it could have raised it at the District Court level.”

They also note that “[i]n the related ‘Gallagher’ settlement, Van

raised the [standing] argument and was denied by the same

District Judge as here.”

We agree that Van Enterprises’ objection is devoid of any

reference, express or implied, to the named plaintiffs’ standing

and there is no basis for construing the objection as containing

such a challenge. In a somewhat telling statement, Van

Enterprises now argues that “no standing issues were addressed

by the Settling Parties and District Court in connection with [the

Zurich] Settlement Class.” The likely explanation for the

absence of a standing analysis is that no challenge was made to

the plaintiffs’ standing and the District Court did not otherwise

discern a reason to include a discussion of the plaintiffs’

standing in its opinion. That said, because “[s]tanding is a

threshold jurisdictional requirement, and we have an obligation

to examine our own jurisdiction and that of the district courts,”

we will briefly address whether the named plaintiffs have

standing. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399

F.3d 248, 254 (3d Cir. 2005) (internal quotation marks and

citation omitted).

Turning to the “irreducible constitutional minimum” of

standing, the Supreme Court has articulated three requirements:
47

“First, the plaintiff must have suffered an ‘injury

in fact’ – an invasion of a legally protected

interest which is (a) concrete and particularized

and (b) ‘actual or imminent, not conjectural or

hypothetical.’ Second, there must be a causal

connection between the injury and the conduct

complained of – the injury has to be ‘fairly . . .

trace[able] to the challenged action of the

defendant, and not . . . th[e] result [of] the

independent action of some third party not before

the court.’ Third, it must be ‘likely,’ as opposed

to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(internal citations and select quotation marks omitted).

Van Enterprises argues that “the named Plaintiffs do not

allege and have not shown that any of their policies were subject

to the improper use of contingent commission agreements,” and

thus they have not established an injury in fact. Van Enterprises

contends that, at best, “Plaintiffs allege that the entire class paid

‘higher prices that arguably ensued in [the] entire industry’ as a

result of Defendants’ allegedly anticompetitive conduct directed

at some subset of Class Members.”

In response, the attorneys general assert that “at least

seven of the named plaintiffs purchased Zurich insurance

policies,” and that this “is sufficient to establish standing for

class certification purposes” because “[o]nce a named Plaintiff

has been shown to have standing and therefore [is] properly
48

before the Court,” the focus shifts to “compliance with the

provisions of Rule 23.” Alternatively, the plaintiffs argue that

“because the Settlement Class is limited to those policyholders

with a ‘direct and immediate relationship’ to a Defendant coconspirator in this Action, and because all Settlement Class

Members purchased insurance at prices elevated by Defendants’

unlawful scheme, all members of the Settlement Class have

been injured by the anticompetitive conduct described in the

Complaint and therefore have standing.” They add that “the

payment of contingent commissions drove up the costs of all

insurance policies” because “[t]hrough a process called

‘premium build-up’ the contingent commissions paid by insurers

were built into formulas used to derive all rates.”

Van Enterprises’ arguments must be rejected because it

is clear that the named plaintiffs alleged a concrete and

particularized injury in fact. The plaintiffs alleged that they paid

supra-competitive prices for their insurance policies as a result

of the contingent commission arrangements and other

anticompetitive conduct of the Zurich Defendants. This

increase in price constitutes a concrete injury in fact. Moreover,

because the named plaintiffs purchased insurance policies from

the Zurich Defendants during the relevant class period, their

injuries are neither generalized nor speculative. This is not to

say that the named plaintiffs have proven that they were injured

by the Zurich Defendants, but they are not required to prove

their injuries in order to establish that they are a proper party to

bring their claims before the court. Additionally, the plaintiffs

alleged that the economic harm they suffered can be traced to

the Zurich Defendants’ conduct and these injuries can be

redressed by imposing liability on the Zurich Defendants.
There is no indication that Van Enterprises contests the 24

District Court’s finding that the superiority requirement of Rule

23(b)(3) was satisfied and it is beyond dispute that no such

argument was preserved in Van Enterprises’ written objection.

Therefore, we will not address this aspect of Rule 23(b)(3).

49

Therefore, we are satisfied that the case and controversy

requirement of Article III is met and that the named plaintiffs

had standing to bring this case.

b. Challenges to Class Certification

Turning to the merits of Van Enterprises’ preserved

objections to class certification, Van argues that “[t]he District

Court failed to rigorously analyze the Rule 23 criteria before

certifying this Settlement Class.” Although Van Enterprises

speaks in general terms about all of the Rule 23 requirements,

Van’s arguments are primarily directed at the predominance

component of Rule 23(b)(3). Nonetheless, to the extent that 24

Van Enterprises continues to argue that the commonality and

typicality requirements of Rule 23(a) were not satisfied (as it did

in its written objection), we reject any such argument. The

District Court correctly noted that “‘commonality does not

require an identity of claims or facts among class members’;

rather, ‘[t]he commonality requirement will be satisfied if the

named plaintiffs share at least one question of fact or law with

the grievances of the prospective class.’” Zurich Settlement

Final Approval Opinion at *13 (quoting Newton v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183 (3d Cir.

2001)). Indeed, the District Court listed several common
50

questions of law and fact before concluding that the

commonality requirement was satisfied. We find no error in this

determination. And with respect to the typicality requirement,

the District Court stated that “‘if the claims of the named

plaintiffs and class members involve the same conduct by the

defendant, typicality is established.’” Id. at *14 (quoting

Newton, 259 F.3d at 183-84). Based on this standard, the

District Court explained:

“Here, the claims made by named Plaintiffs and

those made on behalf of the Settlement Class

Members are indistinguishable, encompassing

identical allegations that the Zurich Defendants

violated RICO, federal and state antitrust laws,

and the common law obligation of fiduciary duty.

These claims arise in each case from the same

course of action taken by the Zurich Defendants.

Consequently, the named Plaintiffs’ claims are

typical of those brought by the Settlement Class

Members at large.”

Id. We discern no error in this finding either. Although we are

satisfied with the District Court’s analysis of the commonality

and typicality requirements of Rule 23(a), we think that Van

Enterprises’ challenge to the predominance requirement of Rule

23(b)(3) calls for a closer look.

As part of its challenge to the District Court’s finding of

predominance, Van Enterprises argues that “the Settling Parties

and the District Court did not address how antitrust injury could

be shown with common proof for this overbroad Settlement
None of these particular arguments was raised in Van 25

Enterprises’ written objection. Nonetheless, because of the

magnitude of this settlement – both in terms of the amount of

money involved and the number of persons affected – we will

exercise our discretion to consider these arguments. The

significance of this litigation, in combination with our

independent obligation to ensure the fairness of the settlement

for absent class members, persuades us to entertain these newly

developed arguments on appeal. But our decision to construe

liberally Van Enterprises’ written objection to encompass the

more detailed reasons now offered for its challenge to the

51

Class that includes class members who did not purchase

insurance from any Insurer Defendant or who utilized a broker

who is not even alleged to be part of the conspiracy” and that

“[d]ue to the overbroad class definition, even the question of

whether there is an antitrust conspiracy under federal or state

law is not common to the class.” Van Enterprises makes similar

arguments in the context of the plaintiffs’ RICO claim as well.

Briefly stated, Van Enterprises argues: “The Settling Parties and

the District Court did not address whether the named Plaintiffs

or Settlement Class members had standing to bring a RICO

claim, whether there was a uniform misrepresentation or

omission to the class, whether proximate causation and financial

loss were common to the class, or the applicability of the filed

rate doctrine.” Through these arguments, Van Enterprises

attempts to demonstrate that common issues do not predominate

with respect to the antitrust claims and that “[i]ndividual

questions remain that would have to be separately

adjudicated.”25
predominance requirement should in no way be interpreted as

sanctioning Van Enterprises’ conduct. For this reason, we

reiterate that Van Enterprises should have presented these

arguments to the District Court so that it could have

incorporated such considerations into its own analysis, and

ordinarily claims raised in this manner will be deemed waived.

Additionally, while we recognize that the District Court’s

discussion of the predominance requirement was not particularly

detailed, we think that its treatment of this requirement was

understandable given the conclusory objection that Van

Enterprises made to predominance. The District Court’s

analysis, though brief, was more thorough than Van Enterprises’

objection on this point.

52

The plaintiffs respond that “Van’s arguments regarding

common impact and common injury ignore that Plaintiffs’

claims and the Settlement Class Members’ claims are identically

predicated on the Zurich Defendants’ actions” and that, as a

result, “the district court’s finding of predominance was not an

abuse of discretion.” The plaintiffs also argue that Van

Enterprises’ challenges to the merits of the claims “have no

relevance to the determination of whether to certify a settlement

class.” To this argument, the attorneys general add that Van

Enterprises simply accuses the District Court of “not read[ing]

enough briefs, enough declarations, enough reports, enough

memoranda, enough cases or enough evidence to support

approval of class certification and settlement.”

The Supreme Court has explained that “[t]he Rule

23(b)(3) predominance inquiry tests whether proposed classes
53

are sufficiently cohesive to warrant adjudication by

representation,” which imposes a standard “far more

demanding” than the Rule 23(a) commonality requirement.

Amchem, 521 U.S. at 623-24. Whereas “Rule 23(a)(2)’s

commonality element requires that the proposed class members

share at least one question of fact or law in common with each

other,” the Rule 23(b)(3) predominance element “requires that

common issues predominate over issues affecting only

individual class members.” In re Warfarin Sodium Antitrust

Litig., 391 F.3d at 527-28. Hence, we consider the Rule 23(a)

commonality requirement to be incorporated into the more

stringent Rule 23(b)(3) predominance requirement, and

therefore deem it appropriate to “analyze the two factors

together, with particular focus on the predominance

requirement.” Id. at 528; accord Danvers Motor Co. v. Ford

Motor Co., 543 F.3d 141, 148 (3d Cir. 2008) (“[W]here an

action is to proceed under Rule 23(b)(3), the commonality

requirement is subsumed by the predominance requirement.”

(internal quotation marks omitted)). Because class certification

is unsuitable where “proof of the essential elements of the cause

of action requires individual treatment,” Newton, 259 F.3d at

172, we will “examine the elements of plaintiffs’ claim through

the prism of Rule 23 to determine whether the District Court

properly certified the class,” In re Hydrogen Peroxide Antitrust

Litig., 552 F.3d at 311 (internal quotation marks omitted).

Here, the District Court relied on its Rule 23(a)

commonality analysis in assessing the predominance

requirement of Rule 23(b)(3). After setting forth general

principles about the predominance requirement, the District

Court, interpreting precedent from our Court, noted that
We do not read the District Court’s statement as 26

implying that common issues necessarily predominate in every

antitrust case; such a proposition would be incorrect. See In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d at 321-22 (“We

recognize the Supreme Court has observed that ‘[p]redominance

is a test readily met in certain cases alleging consumer or

securities fraud or violations of the antitrust laws.’ But it does

not follow that a court should relax its certification analysis, or

presume a requirement for certification is met, merely because

a plaintiff’s claims fall within one of those substantive

categories.” (citation omitted)). Rather we construe this

statement together with the District Court’s identification of

various issues in the present case that are common to the class.

In doing so, we interpret the District Court’s statement as

indicating that, in this case, given the common issues of law and

fact which stem from the conduct of the defendants, the

predominance requirement is necessarily met.

54

“because the ‘clear[] focus’ of an antitrust class action is ‘on the

allegedly deceptive conduct of defendant’ and not on ‘the

conduct of individual class members,’ common issues

necessarily predominate.” Zurich Settlement Final Approval 26

Opinion at *15 (quoting In re Warfarin Sodium Antitrust Litig.,

391 F.3d at 528). The District Court then provided the

following explanation in support of finding the predominance

requirement satisfied:

“Here, as discussed in the sections on

commonality and typicality, the identical claims

of both the named Plaintiffs and the absent class
55

members arise from the same set of facts

regarding the alleged collusive and

anticompetitive behavior of the Zurich

Defendants. Consequently, the predominance

requirement is satisfied.”

Id. at *16. In its earlier discussion of the commonality

requirement, the District Court listed the following as examples

of the common questions of law and fact:

“(1) whether the Zurich Defendants entered into

a conspiracy to allocate the market for the sale of

insurance; (2) whether the Zurich Defendants’

alleged conspiracy had the purpose and effect of

unlawfully restraining competition in the

insurance industry; (3) whether the Zurich

Defendants’ conduct violated Section 1 of the

Sherman Act; (4) whether the Zurich Defendants’

conduct breached their fiduciary duty to their

clients; and (5) whether the actions of the Zurich

Defendants violated the RICO statute.”

Id. at *13.

Reading the District Court’s commonality and

predominance analyses together, as is appropriate in this

context, see In re Warfarin Sodium Antitrust Litig., 391 F.3d at

528, it is clear that the District Court identified several

significant – albeit broad – common issues, even if it did not

further refine its analysis by assessing the individual elements of

the plaintiffs’ claims. However, as we indicated earlier, the
56

District Court was not presented with a vigorous challenge to

the predominance requirement, which may have influenced its

decision not to provide a more thorough analysis of this issue.

In order to ensure that the District Court applied the correct legal

standard and acted within its discretion in certifying this class,

we will conduct a Rule 23(b)(3) predominance analysis for

ourselves, building on the foundation provided by the District

Court.

Because our task calls for us to “examine the elements of

plaintiffs’ claim through the prism of Rule 23,” In re Hydrogen

Peroxide Antitrust Litig., 552 F.3d at 311 (internal quotation

marks omitted), we begin with the elements of the plaintiffs’

federal antitrust claim. Section 1 of the Sherman Act prohibits

“[e]very contract, combination in the form of trust or otherwise,

or conspiracy, in restraint of trade or commerce among the

several States, or with foreign nations.” 15 U.S.C. § 1. “To

establish a violation of Section 1, a plaintiff must prove:

(1) concerted action by the defendants; (2) that produced anticompetitive effects within the relevant product and geographic

markets; (3) that the concerted actions were illegal; and (4) that

it was injured as a proximate result of the concerted action.”

Gordon v. Lewistown Hosp., 423 F.3d 184, 207 (3d Cir. 2005)

(citing Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co.,

998 F.2d 1224, 1229 (3d Cir. 1993)). The Supreme Court has

explained that Section 1 of the Sherman Act “‘does not prohibit

[all] unreasonable restraints of trade . . . but only restraints

effected by a contract, combination, or conspiracy,’” and

therefore “‘[t]he crucial question’ is whether the challenged

anticompetitive conduct ‘stem[s] from independent decision or

from an agreement, tacit or express.’” Bell Atl. Corp. v.
57

Twombly, 550 U.S. 544, 553 (2007) (citations omitted); see

Gordon, 423 F.3d at 207 (“The essence of a Section 1 claim is

the existence of an agreement.”).

Turning to the plaintiffs’ allegations, we consider

whether common questions of law and fact exist with respect to

each of these elements. Because the first and third elements of

a Sherman Act violation focus on the conduct of the defendants,

we find that common questions abound with respect to whether

the defendants engaged in illegal, concerted action. For

example, common questions relevant to these two elements

include whether the Zurich Defendants agreed with any of the

Broker Defendants to pay contingent commissions in exchange

for an allocation of a certain amount of business in the insurance

market, whether the Zurich Defendants conspired with any

Insurer Defendants to reduce competition and allocate the

market among a select group of insurers, whether the Zurich

Defendants agreed not to compete for other Insurer Defendants’

customers in return for incumbent protection of their own

customers, whether the Zurich Defendants shared a common

objective of reducing competition among the other Insurer

Defendants as opposed to merely engaging in parallel conduct,

whether there was a discernible division of the insurance market

which amounted to an illegal restraint of trade, and whether

these agreements constituted horizontal restraints of trade that

are per se illegal. The second element of a Sherman Act

violation, which focuses on the effects of the defendants’

challenged conduct, also involves common questions in the

present case, including whether the Zurich Defendants’ actions

reduced competition for insurance, whether the Zurich

Defendants’ actions resulted in a consolidation of the insurance
58

industry, and whether the Zurich Defendants’ actions produced

an increase in the cost of premiums for commercial insurance.

The fourth element of a Sherman Act violation, which

addresses whether the plaintiffs suffered an antitrust injury, is at

the center of Van Enterprises’ challenge to the District Court’s

Rule 23(b)(3) predominance finding. In the context of class

certifications, we have stated that “impact often is critically

important for the purpose of evaluating Rule 23(b)(3)’s

predominance requirement because it is an element of the claim

that may call for individual, as opposed to common, proof.” In

re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 311.

Accordingly, for purposes of class certification pursuant to Rule

23(b)(3), “the task for plaintiffs . . . is to demonstrate that the

element of antitrust impact is capable of proof at trial through

evidence that is common to the class rather than individual to its

members.” Id. at 311-12. For this reason, although the fourth

element focuses on whether the plaintiffs were injured by the

defendants’ conduct, it may still involve common questions of

law and fact if proof of injury can be established on a class-wide

basis.

Van Enterprises argues that antitrust injury cannot be

proven on a class-wide basis because the Settlement Class

includes class members who did not purchase insurance from an

Insurer Defendant or utilize a Broker Defendant. The plaintiffs

counter that antitrust injury is a question that is common to the

class because “Contingent Commissions . . . are included in each

insurer’s ratemaking formulas and are consequently ‘built’ into

every commercial premium for commercial insurance products,”

and “the conspiratorial conduct of all Defendants (including
59

Zurich) reduced or eliminated competition for insurance

products, thereby raising the insurance premiums paid by

Plaintiffs and all members of the class.” Thus, they argue that

all class members were injured by the Zurich Defendants’

anticompetitive conduct, even if the extent of their injuries

varied. The attorneys general likewise argue that “[c]ontingent

commissions paid by insurers were built into the premiums

charged to members of the class which resulted in supra

competitive premium prices to insurance consumers,” and that

“[a]s a result of the Defendant’s conduct, Plaintiffs and

unnamed class members have paid insurance premiums in

excess of what they would have paid had the Broker Defendants

acted in accordance with their fiduciary duties and their

representations to their clients.”

As the arguments of the plaintiffs and attorneys general

illustrate, whether the named plaintiffs and absent class

members were proximately injured by the conduct of the Zurich

Defendants is a question that is capable of proof on a class-wide

basis. Contrary to Van Enterprises’ assertion, the Settlement

Class only includes policyholders who purchased insurance

directly from the Zurich Defendants and policyholders who

utilized one of the Broker Defendants, and therefore the

plaintiffs’ theory for proving antitrust injury would apply to all

of the class members. Consequently, we are satisfied that the

element of antitrust injury – that is, the fact of damages – is

susceptible to common proof, even if the amount of damage that

each plaintiff suffered could not be established by common

proof. Unlike in In re Hydrogen Peroxide Antitrust Litigation,

where the certification inquiry was set against the backdrop of

an impending trial, here we are not as concerned with
60

“formulat[ing] some prediction” as to how this element of a

Sherman Act violation would “play out” at trial, 552 F.3d at 311

(internal quotation marks omitted), “for the proposal is that there

be no trial,” Amchem, 521 U.S. at 620, and instead our inquiry

into the element of antitrust injury is solely for the purpose of

ensuring that issues common to the class predominate over

individual ones. As the foregoing analysis demonstrates,

common questions exist even with respect to the element of

antitrust injury and therefore any individual issues do not

overwhelm the common ones. Because each of the elements of

a Sherman Act violation involves common questions of law and

fact, we conclude that common questions predominate over

individual ones with respect to the federal antitrust claim.

Next, we consider the essential elements of the plaintiffs’

RICO claim. The RICO statute provides, in relevant part:

“It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity

. . . .”

18 U.S.C. § 1962(c). Establishing liability under this section of

the RICO statute “requires (1) conduct (2) of an enterprise

(3) through a pattern (4) of racketeering activity,” plus an injury

to “business or property.” Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479, 496 (1985) (footnote omitted); see Lum v. Bank of

Am., 361 F.3d 217, 223 (3d Cir. 2004). Under Section 1962(d),
61

“[i]t is also unlawful for anyone to conspire to violate

§ 1962(c).” Lum, 361 F.3d at 223. Section 1961(1) of RICO

provides a list of the federal and state crimes which constitute

“racketeering activity” and includes mail and wire fraud, and

Section 1961(4) of RICO defines the term “enterprise” to

“include[] any individual, partnership, corporation, association,

or other legal entity, and any union or group of individuals

associated in fact although not a legal entity.”

Proving the first element of a RICO violation in this case

would involve common questions about the activities of the

Zurich Defendants and, in particular, whether the Zurich

Defendants participated or engaged in conduct with other

Insurer Defendants and Broker Defendants. The second element

also involves common questions of law and fact, namely

whether an enterprise of Broker Defendants and Insurer

Defendants existed (of which the Zurich Defendants were a

part) either as an association in fact or as a more formal

organization or entity. Proving the third and fourth elements

would encompass common questions of law and fact as well,

including whether activities that constitute racketeering were

taking place through the enterprise (such as mail or wire fraud)

and whether these racketeering activities were recurring such

that a pattern could be established. While establishing an injury

is not as conducive to common proof because it requires that a

plaintiff demonstrate harm to his property or business, for the

reasons already set forth in our discussion of the element of

antitrust impact, we are satisfied that the plaintiffs have

presented a plausible theory for proving a class-wide injury as

a result of the racketeering activities of the alleged enterprises
Again, “Non-Excess Claimants” refers to those 27

policyholders who purchased a primary insurance policy from

or through one of the defendants whereas “Excess Claimants”

refers to those policyholders who purchased additional insurance

policies – in excess of their primary insurance coverage – from

or through one of the defendants.

62

at issue here. Thus, each element of the alleged RICO violation

involves common questions of law and fact.

Based on our analysis of the essential elements of the

plaintiffs’ federal claims, we agree with the District Court’s

conclusion that common questions of law and fact predominate

over any individual ones, and therefore the predominance

requirement of Rule 23(b)(3) is satisfied.

c. Challenges to the Plan of Allocation

Both Van Enterprises and the Iaad/Zorkess objectors

present challenges related to the Plan of Allocation, arguing that

subclasses were needed to ensure adequate representation for the

various types of policyholders and to ensure a fair allocation of

the settlement fund. Specifically, the Iaad/Zorkess objectors

argue that the District Court abused its discretion by failing to

require the establishment of subclasses and separate

representation for the Excess and Non-Excess Claimants.

27

They also contend that “no informal procedures designed to

mimic sub-classing were employed” and “the increased recovery

of one sub-class was achieved at the expense of another subclass’ diminished recovery.” Van Enterprises argues that,
Although Van Enterprises argues that “[t]here is 28

significant disparate treatment” between the three groups that

results from the Plan of Allocation, Van Enterprises does not

specify why the settlement is not fair, reasonable, and adequate

for any particular type of policyholder.

63

because not all of the class members purchased insurance

directly from the Zurich Defendants, the class members have

antagonistic interests and should not be represented by one set

of lawyers. Instead, according to Van Enterprises, subclasses

should have been certified and, as a result of the District Court’s

decision not to require subclasses and separate representation,

the Plan of Allocation was not fair.28

The plaintiffs respond that there are no divergent interests

among the class members because “[t]he groups for intra-class

allocation were created solely for economic reasons to provide

a fair distribution of the Settlement proceeds among the

Settlement Class Members,” and explain that “[t]he relief was

tailored to the individual policyholders’ circumstances, and the

structure of the distribution does not create intra-class conflicts.”

They contend that “[t]he Settlement Class Members are all in the

same position vis-a-vis the Zurich Defendants; they are

policyholders that were hampered by the same alleged activities

engaged in by the Zurich Defendants.” Moreover, they defend

the Plan of Allocation by arguing that it “was prepared by Class

Counsel, with the substantial assistance of economic experts and

the Intervenor Attorneys General, in such a way as to fairly

allocate the recovery among Settlement Class Members in

accordance with Plaintiffs’ theories of potential damages in the
64

Action.” They maintain that the objectors “fail to recognize that

the Plan of Allocation is designed to reflect certain differences

in the impact of the Defendants’ conduct in certain lines of

insurance during different years.”

The attorneys general also argue that subclasses were not

necessary in this settlement and that the Plan of Allocation was

fair. They contend that the objectors are essentially

“complain[ing] that the comparatively weak claims receive

comparatively less economic redress” and that “[t]his type of

disparity is common in class cases without establishing

subclasses.” Additionally, the attorneys general state: “Payment

among class members will vary depending on the type of

insurance policy they purchased, but that type of variation has

never been held to warrant subclasses, especially where the

variation in payment is based on the variations in the strength of

cases involving particular insurance products.” The attorneys

general also assert that because “the purchasers of excess and

non-excess insurance are all known, have been noticed and are

the same persons,” this case is distinguishable from other cases

in which subclasses were required. In sum, the attorneys general

assert that “there can be no need for subclasses where the

difference involved different claims by many of the same

persons.”

Federal Rule of Civil Procedure 23(c)(5) states that

“[w]hen appropriate, a class action may be divided into

subclasses that are each treated as a class under this rule.” An

advisory committee note for Rule 23(c) indicates that subclasses

are appropriate “[w]here a class is found to include subclasses

divergent in interest.” Accordingly, “[a] district court hearing
65

a class action has the discretion to divide the class into

subclasses and certify each subclass separately.” In re Cendant

Corp. Sec. Litig., 404 F.3d 173, 202 (3d Cir. 2005). We have

explained that the option to utilize subclasses “is designed to

prevent conflicts of interest in class representation.” Id.

Nonetheless, “[w]hile subclasses can be useful in preventing

conflicts of interest, they have their drawbacks.” Id. (citing a

secondary source for the proposition that subclassing can create

a “Balkanization” of the class action and present a huge obstacle

to settlement if each subclass has an incentive to hold out for

more money). Because “the decision whether to certify a

subclass requires a balancing of costs and benefits that can best

be performed by a district judge,” we accord substantial

deference to district courts with respect to their resolution of this

issue. Id.; see Alexander v. Gino’s, Inc., 621 F.2d 71, 75 (3d

Cir. 1980) (noting that “the district court has considerable

discretion in utilizing subclasses” under Rule 23(c)). Thus,

“[w]here the district court has declined to certify a subclass, we

will ordinarily defer to its decision unless it constituted an abuse

of discretion.” In re Cendant Corp. Sec. Litig., 404 F.3d at 202;

cf. In re Prudential Ins. Co., 148 F.3d at 316 (explaining that the

objector had “not demonstrated that [one type of] claimants

differ from other class members so as to require the creation of

a subclass,” and concluding that “[b]ecause the [one type of]

claimants did not require specialized or distinct treatment, the

court’s failure to create a separate subclass for those claimants

. . . was not an abuse of discretion”).

Under the circumstances of this case, we cannot say that

the District Court abused its discretion in refusing to create

subclasses or require separate representation. We acknowledge
66

that the objectors’ argument that subclasses should have been

utilized has some appeal to it, given that the Plan of Allocation

divides the total settlement award on the basis of the type of

insurance, thereby creating different groups for the purpose of

reimbursement, and the groups do not have access to an equal

percentage of the fund. But subclasses are only necessary when

members of the class have divergent interests and the District

Court found that no such divergent interests existed between the

allocation groups. The District Court explained that the

objectors

“failed to raise, let alone describe, any divergent

or antagonistic interests between the three groups,

as is required in order for subclasses to be

mandated. Instead, [the objectors] state[] without

explanation that these groups have ‘claims of

varying merit’ – a statement that appears to have

been derived entirely from the fact that the

Settlement’s plan of allocation has chosen to

distribute different percentages of the settlement

monies to these groups.”

Zurich Settlement Final Approval Opinion at *18 (citation

omitted). The District Court reasoned that simply because the

relief varied among the different groups of class members did

not demonstrate that there were conflicting or antagonistic

interests within the class. The District Court’s analysis of the

adequacy of representation requirement of Rule 23(a) provides

additional support for its conclusion that there are no divergent

interests among the class members. In this context, the District

Court found that
67

“it is clear that the named Plaintiffs’ interests are

not antagonistic to those of the absent class

members. The central questions in this case

regarding the Zurich Defendants’ alleged conduct,

and the impact of that conduct on both the named

Plaintiffs and the absent class members, animates

in an identical fashion the claims of both

groups. . . . Plaintiffs have advocated as

vigorously for the absent class members as they

have for themselves.”

Id. at *15.

Moreover, on appeal, the objectors still fail to articulate

how the interests of the various members are divergent, and

instead they continue to point to the fact that the fund was

allocated in such a way that a greater percentage of the

settlement value is designated for class members who purchased

excess insurance during certain years. However, this is simply

a reflection of the extent of the injury that certain class members

incurred and does not clearly suggest that the class members had

antagonistic interests. Additionally, as the attorneys general

emphasized at oral argument, many of the Settlement Class

Members are both Excess and Non-Excess policyholders and

will be entitled to recover damages for overpayment of

premiums for both types of insurance. This illustrates that the

Plan of Allocation did not create de facto subclasses among the

class members but merely created a structure for ensuring that

reimbursement is tied to the extent of damages incurred on

certain policies of insurance. This method for distributing the

fund, in which individuals and entities may have claims that
68

span several of the allocation groups, did not produce a

divergence of interests among the class members. Rather,

regardless of the type of insurance at issue and the time period

during which it was purchased, all of the class members shared

a unified interest in establishing the Zurich Defendants’ liability

for engaging in anticompetitive conduct which increased the

cost of premiums for all policyholders.

Additionally, the District Court found that the Zurich

Settlement Agreement and the Plan of Allocation were fair,

reasonable, and adequate, and in support of this finding credited

the representation of the attorneys general that the Plan of

Allocation “accurately reflects differences in the impact of the

Defendants’ conduct in certain lines of insurance during

different years.” Id. at *11. As the plaintiffs explained in their

memorandum in support of their motion for final approval of the

settlement,

“[f]or each group of claimants, the distributable

amount from the Combined Settlement Amount

will be calculated by dividing the premium paid

by each claimant for the applicable policies by the

total premiums paid by all claimants. . . . With

respect to any Settlement Class Policy Purchase,

no Conspiracy Claimant can recover a higher

percentage of the premium paid than that

recovered by an Excess Claimant or a Non-Excess

Claimant. In addition, to the extent that any of the

Combined Settlement Amount allocable to the

Conspiracy Claimants is not distributed, that

remaining amount shall be reallocated to the
69

Excess Claimants and the Non-Excess Claimants,

with 62.7% allocated to the Excess Claimants,

and 37.3% allocated to the Non-Excess

Claimants.”

(Zurich App. 2906.) This information further demonstrates that

the Plan of Allocation was carefully devised to ensure a fair

distribution of the settlement fund to the various types of

claimants and was allocated in such a way that policyholders

who likely incurred the most damage are entitled to a larger

proportion of the recovery than those whose injuries were less

severe. Even if some potential benefits may have been realized

from utilizing subclasses, it is not at all clear that the advantages

would have outweighed the disadvantages, and therefore it is

difficult to say that the District Court abused its discretion by

not taking this step. Consequently, we conclude that the District

Court’s decision not to certify separate subclasses or require

separate representation did not constitute an abuse of discretion

and likewise its approval of the Zurich Settlement Agreement

and Plan of Allocation was also within its discretion.

C. Challenges to the Approval

of the Gallagher Settlement

1. The District Court’s Analysis

In the Gallagher Settlement, the District Court utilized

the same approach it used in approving the Zurich Settlement

with respect to the Rule 23 requirements for approving class

action settlements. The District Court addressed the

prerequisites of Rule 23(a) and concluded that the existence of
70

over 288,000 potential class members “easily satisfies the

numerosity requirement [of subsection (a)(1)], as numbers in

excess of forty, particularly those exceeding one hundred or one

thousand have sustained the requirement”; the commonality

requirement of subsection (a)(2) was “clearly satisfied” because

of the “many common questions of law and fact”; the typicality

requirement of subsection (a)(3) was met because “the claims

made by named Plaintiffs and those made on behalf of the

Settlement Class Members are indistinguishable, encompassing

identical allegations” and such claims arose “in each case from

the same course of action taken by the Gallagher Defendants”;

and the adequacy of representation requirement of subsection

(a)(4) was met because Class Counsel were “clearly well

qualified and experienced class action attorneys who have been

involved in similar . . . litigation around the country,” and

because “it is clear that the named Plaintiffs’ interests are not

antagonistic to those of the absent class members.” Gallagher

Settlement Final Approval Opinion at *9-11 (internal quotation

marks omitted).

With respect to Rule 23(b)(3), the District Court

concluded that the predominance requirement was met because

“the identical claims of both the named Plaintiffs and the absent

class members arise from the same set of facts regarding the

alleged collusive and anticompetitive behavior of the Gallagher

Defendants.” Id. at *12. The District Court also determined

that the superiority requirement of Rule 23(b)(3) was satisfied

by the class action in light of the presence of more than 288,000

potential class members and millions of pages of documents,

which, according to the District Court, made it “more desirable”
The supplemental Prudential factors relevant here also 29

weigh in favor of the Gallagher Settlement. See supra note 17

(quoting In re Prudential Ins. Co., 148 F.3d at 323) (noting

factors that may be appropriate to consider in addition to the

ones enumerated in Girsh). Prior to the settlement, “[c]ounsel

for the Plaintiffs obtained approximately 70 million pages of

documents from various defendants and third parties, including

roughly 1.4 million pages of documents and volumes of data

from the Gallagher defendants alone. During this period,

Plaintiffs’ counsel also met and conferred with defense counsel

numerous times and conducted approximately 181 depositions

in connection with the action.” Gallagher Settlement Final

Approval Opinion at *2 (citation omitted). Accordingly,

counsel had an extensive opportunity to assess the merits of the

case. In addition, class members had a right to opt out, and

some did so. See id. at *5. The objectors do not dispute the

fairness of the award of attorneys’ fees on appeal, but the

District Court approved it as fair and reasonable, and we find no

reason to doubt its judgment. Nor do we see cause to dispute

71

to litigate these claims in one action, rather than in “numerous,

separate actions litigating the same issue.” Id. at *13.

The District Court also concluded that the Settlement

Agreement satisfied Rule 23(e) because the agreement was fair,

reasonable, and adequate. The District Court reached this

conclusion after analyzing each of the Girsh factors and

determining that the first five factors “overwhelmingly weigh in

favor of approval of settlement” and the final four factors

“weigh slightly or moderately in favor of approval.” Id. at *4.29
the fairness of the claims-processing procedure. See id. at *15

(rejecting objections to the proposed claim form).

72

Prior to certifying the class and approving the Gallagher

Settlement Agreement, the District Court addressed and rejected

the challenges raised by the two objectors.

2. Van Enterprises’ Arguments on Appeal

As previously mentioned, Van Enterprises is the only

objector-appellant with respect to the Gallagher Settlement.

Van Enterprises presents nearly identical challenges to the

District Court’s approval of the Gallagher Settlement as it did

with respect to the Zurich Settlement, arguing that the named

plaintiffs lack standing, the Settlement Class is overbroad and

the certification requirements of Rule 23(a) and (b)(3) were not

satisfied, and the Plan of Allocation is not fair.

a. Challenges to the Plaintiffs’ Standing

Unlike the Zurich Settlement, Van Enterprises did object

in writing to the Gallagher Settlement on the basis of the named

plaintiffs’ lack of standing, and therefore these arguments were

considered by the District Court. The District Court found that

“[t]he named Plaintiffs here have sufficiently alleged injury in

fact – artificially inflated insurance premiums – as a result of the

Gallagher Defendants’ participation in the alleged customer

allocation scheme and other alleged conduct,” and that, as a

result, “unnamed Plaintiffs in the class need not make a separate
73

showing of injury in fact, and standing is not an obstacle to

certification for the class for settlement purposes.” Id. at *14.

Van Enterprises contends that “the named plaintiffs do

not allege and have not shown that any of their policies were

subject to the improper use of contingent commission

agreements” and that “[n]one of the named plaintiffs claim that

the receipt of contingent commissions caused any broker to steer

them to a policy that cost more than it should have.” Van

Enterprises argues that, at best, the plaintiffs assert that they

have standing because “the Insurer Defendants ‘passed through’

their payments of contingent commission to all of their insureds,

regardless of the geographic area or the line of commercial

insurance” and that this amounts to a non-particularized and

conjectural allegation of injury.

The defendants respond that Van Enterprises’ arguments

are unavailing because “three different named class members

purchased insurance coverage through Gallagher that included

policies issued by Defendant Insurers who had entered into

contingent commission agreements with Gallagher,” and “these

named plaintiffs were individually harmed by the existence of

undisclosed contingent commissions.” The plaintiffs add that

“because the Settlement Class is limited to those policyholders

with a ‘direct and immediate relationship’ to a Broker Defendant

co-conspirator in this Action, and because all Settlement Class

Members purchased insurance at prices elevated by Defendants’

unlawful scheme, all members of the Settlement Class have

standing and have been injured by the anticompetitive conduct

described in the Complaints.” The plaintiffs also contend that

they “have suffered immediate concrete economic harm – an
74

out-of-pocket cost – at the point they purchased their insurance

policies through the Broker Defendants.”

Because the plaintiffs alleged that several of the named

plaintiffs utilized the Gallagher Defendants’ brokerage services

in order to obtain insurance and that the plaintiffs suffered

economic harm in the form of higher premiums as a result of the

defendants’ anticompetitive conduct, the named plaintiffs have

standing for purposes of the class certification. The allegations

demonstrate that the named plaintiffs suffered an injury in fact

that is concrete and particularized and which was proximately

caused by the actions of the Gallagher Defendants, and this is

sufficient to establish their standing. We do not need to assess

the merits of the plaintiffs’ argument that, having purchased

insurance at higher prices, all of the class members have

standing, because the critical question is whether the named

plaintiffs who were actually before the District Court had

standing irrespective of whether each absent class member could

establish standing. The named plaintiffs only needed to allege

that they suffered an injury in fact and were not required to

prove the merits of their case against the Gallagher Defendants

to establish standing. Accordingly, we conclude that the District

Court correctly determined that the named plaintiffs had

standing and that the case could proceed.

b. Challenges to Class Certification

Van Enterprises’ challenges to the certification of the

Gallagher Settlement Class mimic its challenges to the

certification of the Zurich Settlement Class. In general terms,

Van Enterprises argues: “A review of the pleadings, RICO
75

statement, orders of dismissal and arguments and evidence

submitted by the Settling Parties in favor of certifying this

Settlement Class make clear that this incredibly broad

Settlement Class does not meet the requirements of Rule 23.”

More specifically, Van Enterprises contends that the

predominance requirement of Rule 23(b)(3) was not met

because “common questions did not predominate for the

antitrust claims” and “antitrust impact or injury could not be

shown with common proof.” As for the RICO claims, Van

Enterprises argues the predominance requirement is not met

because “there were not standard, uniform misrepresentations to

the class” and it was questionable “whether any violation of

RICO caused loss to the class.” Van Enterprises also argues that

the District Court, by “appl[ying] the commonality standard of

[Rule] 23(a)(2) to determine whether questions of law or fact

common to the members of the class predominate over any

questions affecting only individual members,” used the incorrect

legal standard in making its Rule 23(b)(3) determination. As

these challenges were preserved in Van Enterprises’ written

objection, we will consider each of them in turn.

Although Van Enterprises’ arguments are primarily

focused on the predominance requirement of Rule 23(b)(3), we

will briefly address the commonality and typicality requirements

of Rule 23(a) as it specifically challenged these requirements in

its written objection. The District Court found that the

commonality requirement was satisfied because “there are many

common questions of law and fact,” listing, among others,

questions such as whether “the Gallagher Defendants entered

into a contract, combination or conspiracy to allocate the market

for sale of insurance” and whether “the Gallagher Defendants
76

engaged in a pattern of racketeering activity.” Gallagher

Settlement Final Approval Opinion at *10. Because the

commonality requirement is “satisfied if the named plaintiffs

share at least one question of fact or law with the grievances of

the prospective class,” Newton, 259 F.3d at 183 (internal

quotation marks omitted), we do not discern any error in the

District Court’s finding that the commonality requirement was

satisfied. As for the typicality requirement, the District Court

found that

“the claims made by named Plaintiffs and those

made on behalf of the Settlement Class Members

are indistinguishable, encompassing identical

allegations that the Gallagher Defendants violated

RICO, federal and state antitrust laws, and the

common law obligations. These claims arise in

each case from the same course of action taken by

the Gallagher Defendants. Consequently, the

named Plaintiffs’ claims are typical of those

brought by the Settlement Class Members at

large.”

Gallagher Settlement Final Approval Opinion at *11. We agree

with the District Court that the claims of the named plaintiffs

and the class members stem from the conduct of the Gallagher

Defendants and that the interests of the named plaintiffs are

sufficiently aligned with the interests of the entire class such that

the typicality requirement is satisfied. Accordingly, we discern

no error in the District Court’s finding on this Rule 23(a)

requirement of class certification.
77

Turning to Van Enterprises’ challenge to the

predominance requirement of Rule 23(b)(3), the District Court

provided a nearly verbatim analysis of this element in its

Gallagher Settlement opinion as it did in its Zurich Settlement

opinion. The District Court noted that in order to satisfy this

element of Rule 23(b)(3) “parties must do more than merely

demonstrate a ‘common interest in a fair compromise’; instead,

they must provide evidence that the proposed class is

‘sufficiently cohesive to warrant adjudication by

representation.’” Id. at *12 (quoting Amchem, 521 U.S. at 623).

The District Court referred back to its Rule 23(a) commonality

analysis in which it identified the following issues as being

common to the class:

“whether: (1) the Gallagher Defendants entered

into a contract, combination or conspiracy to

allocate the market for sale of insurance; (2) the

Gallagher Defendants’ contract, combination or

conspiracy had the purpose and effect of reducing

and unreasonably restraining competition in the

sale of insurance; (3) the Gallagher Defendants’

conduct violated § 1 of the Sherman Act; (4) the

Gallagher Defendants engaged in a pattern of

racketeering activity; and (5) the Gallagher

Defendants violated RICO.”

Id. at *10.

However, one notable difference between the District

Court’s analysis of predominance in the Gallagher Settlement in

contrast to its discussion of this requirement in the Zurich
78

Settlement is that the District Court was able to specifically

address Van Enterprises’ challenge to the predominance

requirement because Van Enterprises had provided a more

thorough explanation of its objection in its written submission

to the District Court. Thus the District Court noted that Van

Enterprises objected to the following: “[W]hether any antitrust

injury is common to the class; whether Plaintiffs can show a

uniform fraudulent representation sufficient to certify a RICO

class; and whether common unjust enrichment issues

predominate throughout the class.” Id. at *14. Notwithstanding

the reasons for Van Enterprises’ objection, the District court

determined: “[N]amed Plaintiffs and absent class members are

asserting identical claims that arise from the same set of facts

regarding collusive and anticompetitive behavior of the

Gallagher Defendants. Consistent with the law of the Third

Circuit, this satisfies the commonality requirement of [Rule]

23(a).” Id.

While we acknowledge that the District Court was

imprecise when it referred to Rule 23(a) at this point of its

analysis, as opposed to Rule 23(b)(3), it is clear from the entirety

of the District Court’s discussion that it was assessing whether

the predominance component of Rule 23(b)(3) was satisfied.

Similarly, at another point in its discussion, the District Court

referred to “the commonality requirement of [Rule] 23(b)(3)” as

opposed to the predominance requirement of Rule 23(b)(3). Id.

Although it is appropriate to consider the commonality

requirement of Rule 23(a) together with the predominance

requirement of Rule 23(b)(3), see In re Warfarin Sodium

Antitrust Litig., 391 F.3d at 528, district courts must take care
79

not to conflate the terminology because doing so results in

confusion and may undermine the district court’s conclusions.

Therefore, to ensure that the predominance requirement

of Rule 23(b)(3) was satisfied, we will briefly analyze whether

common questions of law and fact predominate over individual

ones with respect to the plaintiffs’ federal antitrust and RICO

claims. As we discussed in the context of the Zurich Settlement,

because the first and third elements of a Sherman Act violation

focus on the conduct of the defendants, it is not difficult to

identify common questions relevant to establishing these

elements, such as whether the Gallagher Defendants agreed with

any of the Insurer Defendants to steer customers to those

insurers in exchange for the payment of contingent

commissions, whether the Gallagher Defendants conspired with

any Insurer Defendants to reduce competition in the insurance

market by soliciting non-competitive bids, whether the

Gallagher Defendants agreed with other Broker Defendants to

share their contingent commission arrangements with each other

but not to disclose these arrangements to their customers,

whether the Gallagher Defendants actually engaged in collusive

actions with other Broker Defendants as opposed to merely

taking unilateral actions in their own best interest, whether any

of the Gallagher Defendants’ agreements constituted horizontal

restraints of trade, and whether the Gallagher Defendants

succeeded at allocating their business among a select group of

insurers in restraint of trade. Common questions that are

relevant to the second element of a Sherman Act violation

include whether the Gallagher Defendants’ actions reduced

competition for insurance, whether the Gallagher Defendants’

actions resulted in an allocation of customers and a
80

consolidation of the insurance market, and whether the

Gallagher Defendants’ actions caused an increase in the cost of

premiums for insurance. As for the fourth element, we likewise

conclude that there are common questions relevant to proving

antitrust injury. The plaintiffs alleged that premiums throughout

the insurance industry were artificially inflated as a result of the

contingent commission agreements and other allegedly

anticompetitive practices that the Gallagher Defendants engaged

in. Based on this theory, antitrust injury is susceptible to proof

on a class-wide basis and involves common questions.

Turning to the plaintiffs’ RICO claim, many of the same

common questions that we identified in the context of the Zurich

Settlement are also relevant here. The first element of a RICO

violation involves the common question of whether the

Gallagher Defendants participated or engaged in conduct with

other Insurer Defendants and Broker Defendants. The second

element, whether an enterprise existed, also involves common

questions of law and fact, such as whether the Broker

Defendants and Insurer Defendants were part of an association

in fact or whether they formed an enterprise through the legally

recognized Counsel of Insurance Agents and Brokers.

Similarly, the third and fourth elements involve common

questions of law and fact as well, including whether the

enterprise was being used to commit mail or wire fraud, or other

acts that constitute racketeering, and whether such activities

occurred often enough to establish a pattern. Again, we

recognize that establishing liability under RICO also requires

demonstrating that the plaintiffs suffered an injury to their

property or business, which may require individual proof in

some cases, but in this case the plaintiffs’ “premium buildup”
81

theory lends itself to proof on a class-wide basis. In sum, we

conclude that, because the essential elements of the plaintiffs’

federal claims involve common questions of law and fact, such

common questions predominate over any individual ones, and

Rule 23(b)(3) is satisfied.

c. Challenges to the Plan of Allocation

Van Enterprises also contends that separate subclasses

should have been certified to ensure adequate representation and

a fair allocation of the settlement. Van Enterprises argues that

the six categories of claimants among whom the settlement fund

is allocated are subject to disparate treatment and that

antagonistic interests exist between these groups. As an initial

matter, we note that Van Enterprises made only a passing

reference to the use of subclasses in its written objection to the

Gallagher Settlement, which falls far short of the “sufficient

specificity” standard of presenting an issue for consideration

before the District Court in order to preserve it for appeal.

Keenan, 983 F.2d at 471; accord Shell Petroleum, 182 F.3d at

218. Van Enterprises also failed to substantiate its argument

that the Plan of Allocation was unfair, other than to state that

“there is significant disparate treatment” of the six claimant

groups. Nonetheless, to the extent that Van Enterprises’

arguments contest the adequacy of representation – a challenge

which it did preserve in its written objection – we will consider

all of these arguments on appeal.

The District Court found that Van Enterprises’ challenge

to the Plan of Allocation was actually a challenge to the

certification of the class because Van Enterprises’ arguments
82

related to the adequacy of representation as opposed to the

fairness of the amounts of the fund that were allotted to each

group of claimants. See Gallagher Settlement Final Approval

Opinion at *9. We agree with the District Court that Van

Enterprises did not raise any substantive challenges to the Plan

of Allocation, nor does it articulate any such challenge on

appeal. Accordingly, we find no error in the District Court’s

conclusion that the Settlement Agreement and the Plan of

Allocation satisfied the requirements of Rule 23(e).

Addressing Van Enterprises’ challenges in the context of

the adequacy of representation requirement of Rule 23(a), the

District Court found that there were not any antagonistic

interests among the Class Members. Specifically, the District

Court determined:

“Here, it is clear that the named Plaintiffs’

interests are not antagonistic to those of the absent

class members. The central questions in this case

regarding the Gallagher Defendants’ alleged

conduct, and the impact of that conduct on both

the named Plaintiffs and the absent class

members, animates in an identical fashion the

claims of both groups. [I]n addressing these

common questions, the named Plaintiffs have

advocated as vigorously for the absent class

members as they have for themselves.”

Id. at *11. The District Court found that the named plaintiffs

did not have any divergent or conflicting interests with the

absent class members and were therefore adequate
83

representatives of the class, and we discern no error in this

finding. Moreover, in the absence of divergent interests among

the class members, we conclude that the District Court did not

abuse its discretion by choosing not to utilize subclasses.

D. Challenge to the Attorneys’

Fees in the Zurich Settlement

1. Standards for Approving Attorneys’ Fees

Requests for awards of attorneys’ fees in a class action

settlement may be presented as either a percentage of the total

recovery of a common fund or as a dollar amount that is not

derivative of the settlement value. When a percentage of the

total recovery of the settlement is requested, we have articulated

several factors that a district court should consider for assessing

the reasonableness of the fee. See Gunter v. Ridgewood Energy

Corp., 223 F.3d 190 (3d Cir. 2000). The Gunter factors are as

follows:

“(1) the size of the fund created and the number

of persons benefitted; (2) the presence or absence

of substantial objections by members of the class

to the settlement terms and/or fees requested by

counsel; (3) the skill and efficiency of the

attorneys involved; (4) the complexity and

duration of the litigation; (5) the risk of

nonpayment; (6) the amount of time devoted to

the case by plaintiffs’ counsel; and (7) the awards

in similar cases.”
84

Id. at 195 n.1. These factors “need not be applied in a formulaic

way . . . and in certain cases, one factor may outweigh the rest.”

Id. We have instructed district courts that they are “to engage in

robust assessments of the fee award reasonableness factors when

evaluating a fee request.” In re Rite Aid Corp. Sec. Litig., 396

F.3d 294, 302 (3d Cir. 2005).

The alternative to requesting a percentage of the total

recovery is to request a particular dollar amount in connection

with class counsel’s lodestar.

“The lodestar award is calculated by multiplying

the number of hours reasonably worked on a

client’s case by a reasonable hourly billing rate

for such services based on the given geographical

area, the nature of the services provided, and the

experience of the attorneys. The multiplier is a

device that attempts to account for the contingent

nature or risk involved in a particular case and the

quality of the attorneys’ work.”

Id. at 305-06 (footnote omitted). The reasonableness of the

requested fee can be assessed by calculating the lodestar

multiplier, which is equal to the proposed fee award divided by

the lodestar (i.e., the product of the total hours and the blended

billing rate). But the lodestar “multiplier need not fall within

any pre-defined range, provided that the District Court’s

analysis justifies the award.” Id. at 307.

“The percentage-of-recovery method is generally favored

in common fund cases because it allows courts to award fees
85

from the fund ‘in a manner that rewards counsel for success and

penalizes it for failure.’” Id. at 300 (quoting In re Prudential

Ins. Co., 148 F.3d at 333). “The lodestar method is more

typically applied in statutory fee-shifting cases,” but

“[r]egardless of the method chosen, we have suggested it is

sensible for a court to use a second method of fee approval to

cross-check its initial fee calculation.” Id. When the lodestar

method is used only as a cross-check, it is appropriate to apply

an abridged analysis, but courts should still “explain how the

application of a multiplier is justified by the facts of a particular

case.” In re Prudential Ins. Co., 148 F.3d at 340-41. “The

lodestar cross-check serves the purpose of alerting the trial

judge that when the multiplier is too great, the court should

reconsider its calculation under the percentage-of-recovery

method, with an eye toward reducing the award.” In re Rite Aid

Corp. Sec. Litig., 396 F.3d at 306.

2. The District Court’s Analysis

The District Court began its analysis by calculating the

percentage of recovery that Class Counsel’s fee request

represented, analogizing the fee request to a common fund case.

The District Court explained that according to Class Counsel,

the $29,950,000 fee award was 23% of the minimum recovery

attributable to their efforts or, alternatively, if expenses and

incentive awards were subtracted from the total award, then the

attorneys’ fee would amount to 19.9% of the minimum recovery.

See Zurich Settlement Attorneys’ Fees Opinion at *2. Class

Counsel claimed – and the District Court accepted for the

purposes of this calculation – that they deserved credit for the

$100,000,000 settlement fund established under the MOU and
86

the $29,950,000 for fees and expenses, for a combined total of

$129,950,000. Id. The District Court acknowledged that “this

Settlement is not strictly a common fund,” but reasoned that the

appropriate analysis “is analogous to that performed to the

common fund doctrine.” Id. at *3.

The District Court proceeded to analyze each of the

Gunter factors, at times applying some of the same reasoning it

used in approving the Zurich Settlement Agreement under the

Girsh factors. The District Court concluded that the first factor

– the size of the fund created and the number of persons

benefitted – weighed in favor of approval because “Class

Counsel were able to obtain a sizeable result, $121,800,000, on

behalf of the Class.” Id. at *4. The District Court also

referenced the number of people who would benefit from the

Settlement Agreement and the fact that the Settlement

Agreement would not be reduced by awarding attorneys’ fees

and expenses. Id. The District Court determined that the second

factor – the presence or absence of substantial objections by

members of the class to the settlement terms and/or fees

requested by counsel – weighed in favor of approval due to the

“small number of objections . . . [and the lack of] merits of those

objections.” Id. at *6. The District Court relied on the same

reasoning it used in its Girsh analysis to conclude that the third

and fourth factors were satisfied – the skill and efficiency of the

attorneys involved and the complexity and duration of the

litigation. See id.

The District Court found that the fifth factor – the risk of

non-payment – weighed in favor of approval because “Class

Counsel invested a substantial amount of time and effort to
87

reach this point and obtain the favorable Settlement” and “Class

Counsel accepted the responsibility of prosecuting this class

action on a contingent fee basis and without any guarantee of

success or award.” Id. at *7. As for the sixth factor – the

amount of time devoted to the case by plaintiffs’ counsel – the

District Court determined that it also weighed in favor of

approval due to the large amount of time (200,000 hours prior

to settlement), money (aggregate lodestar of nearly $74,000,000

and expenses of nearly $4,000,000), and effort put forth by

many firms (approximately fifty law firms). See id. Finally, the

District Court determined that the award requested by Class

Counsel (either 23% or 19.9%) was reasonable because it was

on par with amounts previously awarded in similar settlement

cases in the District of New Jersey and it was within the range

of privately negotiated contingent fees for commercial litigation.

See id. at *7-8. Consequently, the District Court concluded that

“the requested fee by Class Counsel is fair and reasonable

according to the Gunter factors.” Id. at *8.

In addition to considering the percentage of recovery in

the context of the Gunter factors, the District Court also

performed a lodestar cross-check and calculated the lodestar

multiplier by using Class Counsel’s proposed fee award of

$29,950,000, and dividing that number by the value of the

lodestar that Class Counsel claimed for its work through July 31,

2006 (the approximate time when the Zurich Settlement

Agreement was reached). See id. at *9. The District Court

accepted the total number of hours submitted by Class Counsel

and explained that it “may rely on summaries submitted by the

attorneys, and is not required to scrutinize every billing record.”

Id. The District Court also noted that “Class Counsel did not
88

provide declarations in support of any particular hourly rate,”

but based on the District Court’s own calculation (which it

arrived at by dividing the total lodestar by the total hours

worked), “[i]t appears that the hourly rate being used by Class

Counsel is approximately $365.” Id. at *10. The District Court

considered this rate reasonable based on Class Counsel’s

experience and the lack of objections to the rate. Id. The

District Court’s calculation produced a lodestar multiplier of

0.4, which the District Court stated was “within an accepted

range.” Id. at *9.

Before concluding its analysis, the District Court also

addressed the five objections raised to Class Counsel’s fee

request. First, the District Court rejected the claim that the value

of Class Counsel to class members was lower due to the

participation of several attorneys general, stating that “[b]ased

on details of the Settlement Agreements, it does not appear that

Class Counsel has run afoul of [the Third] Circuit’s prohibition

of collecting fees based on the work of governmental agencies.”

Id. at *5. Next, relying on Hensley v. Eckerhart, 461 U.S. 424

(1983), the District Court rejected the claim that Class Counsel

was seeking to recover fees based on non-Zurich Settlement

related issues, explaining that “there are situations where ‘the

plaintiff’s claims for relief will involve a common core of facts

or will be based on related legal theories’ and that ‘[m]uch of

counsel’s time will be devoted generally to the litigation as a

whole, making it difficult to divide the hours expended on a

claim-by-claim basis.’” Zurich Settlement Attorneys’ Fees

Opinion at *5 (quoting Hensley, 461 U.S. at 435). The District

Court also rejected the objections that Class Counsel failed to

perform their gatekeeper function and that the fees requested
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were too high, finding both objections “not persuasive.” Id. at

*6. The District Court finally rejected the objection that the

$10,000 class representation fee was too high, stating that “the

Objectors fail to put forth any authority to support this

argument.” Id. Relying on its Gunter analysis, which involved

calculating the percentage of recovery, and its lodestar crosscheck, the District Court approved Class Counsel’s requested

attorneys’ fees, reimbursement of expenditures, and incentive

awards for named plaintiffs.

3. The Objectors’ Challenges on Appeal

The Iaad/Zorkess objectors argue that the District Court

abused its discretion when it awarded $29,950,000 in attorneys’

fees and costs to Class Counsel because the District Court

“overestimated the settlement funds created solely by Class

Counsel, included time in Class Counsel’s lodestar that was

spent pursuing unsuccessful litigation, and failed to exclude

from the lodestar calculation clearly excessive time

submissions.” In particular, these objectors argue that “Zurich

class counsel can take credit for no more than $70 million of the

overall settlement,” because although the MOU secured

$100,000,000 for a settlement fund, “class counsel were

eventually forced to cede $29,900,000 to the Three-State

Settlement in order to make the overall deal work.” Moreover,

they assert that because “57% of the Settlement Fund [goes] to

the Excess Claimants represented by the various attorneys

general . . . only 43% of the $70 million balance of the MOU

monies, or $30 million, will be paid to the clients of the Zurich

class counsel.” Thus they argue that the attorneys’ fees awarded
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to Class Counsel represent far too high a percentage of the total

settlement value that Class Counsel’s efforts secured.

With respect to the calculation of the lodestar, the

Iaad/Zorkess objectors argue that “there is no justification for

Class Counsel’s inclusion of all of the time spent to date in this

consolidated case in support of their requested fee in the

settlement of only one small portion of the overall MDL

litigation.” Accordingly, these objectors contend that the

District Court should not have allowed Class Counsel to “merely

summarize[] the time and expenses of each of the 44 law firms

that claimed to have performed work that contributed to the

Zurich settlement.” Additionally, they argue that Class Counsel

abused their gatekeeper function with respect to allocating work

in such a way that promotes efficiency, and moreover that the

“amount of time claimed by certain firms . . . raises the

possibility of fraud.”

In response, the plaintiffs argue that they executed the

MOU with the Zurich Defendants “seven months before Zurich

settled with the Attorneys General and other regulators,” and

that “it was a requirement under the MOU . . . that Zurich settle

with the Attorneys General” and therefore Class Counsel played

a critical role in the settlement. They also contend that “[t]he

argument that Class Counsel can only recover for time spent on

Zurich, moreover, ignores the reality that Class Counsel’s

efforts cannot be compartmentalized, as a number of their

actions against all the Defendants provide a benefit to the Class

and clearly had a bearing on the Zurich Defendants’ interest in

and willingness to settle.” With respect to the objectors’ time

calculation challenge, the plaintiffs argue that “even if one
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assumed there was some duplication,” the award was not

excessive because it was “a fraction of Class Counsel’s total

lodestar.” In sum, the plaintiffs argue that “since the requested

fee amount is no more than a fraction of the total lodestar to

date, and the requested fee and expense award is not being paid

out of the common settlement fund, there is especially little risk

here that firms will somehow benefit from inefficient billing

practices, or that the Class will in any way be harmed by the

requested award.”

The Zurich Defendants do not take a position as to the

reasonableness of the attorneys’ fees; however, they do point out

that under the terms of the Zurich Settlement Agreement, “if the

Fees and Expenses award is reduced, as the Objectors seek,

Class Counsel must reimburse the Zurich Defendants that

amount, with interest.” The intervenor attorneys general also

take no position relating to the payment of attorneys’ fees.

We believe that it was appropriate for the District Court

to evaluate the reasonableness of the fee award under a

percentage of recovery method even though the Zurich

Settlement is not a typical common fund. In order to test the

reasonableness of the fee under this method, the District Court

needed to determine what amount of the total settlement value

could be attributed to the work of Class Counsel. Although at

one point the District Court refers to Class Counsel achieving a

sizeable result of $121,800,000 for the settlement fund, it is

clear from the remainder of the District Court’s analysis that it

was crediting Class Counsel with achieving $129,950,000 of the

Settlement Fund based on the $100,000,000 secured under the
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MOU and the $29,950,000 secured under the separate fee

agreement.

It was reasonable to include the $29,950,000 amount in

the calculation of the settlement value created by Class Counsel

in order to determine the percentage of the total recovery that

the fee constitutes because in the typical common fund case,

class counsel would be awarded a percentage of the fund and the

balance would be available for the class members (e.g.,

defendants agree to pay $100,000,000 to a common fund, but

class counsel is awarded 25% of the settlement value, leaving

only $75,000,000 for the class). Here, it is possible to view the

agreement reached between the Zurich Defendants and the

plaintiffs (absent the amount that was contributed to the

settlement fund pursuant to the Multi-State Agreement

negotiated by the attorneys general) as totaling $129,950,000

with a 23% fee award. This is why Class Counsel asserts that

their fee request amounts to 23% of the settlement value for

which they were responsible (or 19.9%, once expenses and

incentive awards are subtracted from the total fee award).

The objectors make a colorable argument that Class

Counsel should not be allowed to take credit for the entire

$100,000,000 as set forth in the MOU because, under the terms

of the Settlement Agreement, the Zurich Defendants were

allowed to reduce the total amount that they contributed to the

class settlement fund by $29,900,000 based on the separate fund

that they were creating pursuant to the Three-State Agreement.

If Class Counsel can only take credit for $70,000,000 of the

value of the Zurich settlement fund, then the percentage-ofrecovery which Class Counsel requested is much larger. Rather
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than asking for approximately $30,000,000 out of $130,000,000,

Class Counsel’s request would amount to about $30,000,000 out

of $100,000,000, or 30% of the fund. Nonetheless, we do not

believe that the District Court abused its discretion by crediting

Class Counsel with achieving the entire $100,000,000 as

provided for in the MOU, because even though nearly

$30,000,000 of this amount was separately earmarked for

distribution through the Three-State Agreement, the money still

benefitted potential Settlement Class Members in that everyone

who chose to claim under the Three-State Agreement otherwise

would have been eligible to claim under the Zurich Settlement

Agreement. We agree with the District Court that Class

Counsel’s efforts produced at least $100,000,000 for the

Settlement Class in addition to the $29,950,000 separately

designated for their fees.

Next we consider the District Court’s lodestar analysis.

Although the District Court was only utilizing the lodestar

method as a cross-check of the reasonableness of the fee request

under the percentage-of-recovery method, it still needed to

calculate the lodestar multiplier correctly in order for the crosscheck to be meaningful. Initially, despite the objectors’

arguments to the contrary, it was not error for the District Court

to rely on time summaries instead of reviewing actual time

records. See In re Rite Aid Corp. Sec. Litig., 396 F.3d at 306-07;

In re Prudential Ins. Co., 148 F.3d at 342. Although Class

Counsel did not disclose the billing rate they used to calculate

their lodestar, the District Court had enough information to

conclude that the blended billing rate was approximately $365,

and the District Court considered this a “reasonable hourly

billing rate for such services based on the given geographical
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area, the nature of the services provided, and the experience of

the attorneys.” Zurich Settlement Attorneys’ Fees Opinion at *8

(internal quotation marks omitted). We have no reason to

believe this finding was in error and, because the District Court

was in the best position to make this assessment, we defer to its

reasonable judgment.

The lodestar multiplier that the District Court calculated

was less than one and thus reveals that Class Counsel’s fee

request constitutes only a fraction of the work that they billed in

conjunction with the Zurich Settlement Agreement. Even

assuming there was some inflation of the hours billed in relation

to the Zurich Settlement or some duplicative work involved in

the total hours count, a significant adjustment would have to be

made to the hours calculation before the lodestar multiplier

(here, a fraction) would even begin to approach one. While

district courts must be aware of the potential for manipulation of

the lodestar and lodestar multiplier, we are satisfied that in the

present case the District Court’s lodestar cross-check confirmed

the reasonableness of the fee request. Additionally, the District

Court’s analysis of the Gunter factors was well-reasoned and

thorough and therefore further supports the conclusion that the

District Court’s award of fees was not an abuse of discretion.

IV. Conclusion

For the reasons set forth above, we will affirm the orders

of the District Court granting final approval of the Zurich

Settlement and the Gallagher Settlement and approving the

motion for an award of attorneys’ fees in the Zurich Settlement.