NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: MGM MIRAGE SECURITIES 

LITIGATION,

------------------------------

LUZERNE COUNTY RETIREMENT 

SYSTEM; PHILADELPHIA BOARD OF 

PENSIONS AND RETIREMENT; 

ARKANSAS TEACHER RETIREMENT 

SYSTEM; STICHTING 

PENSIOENFONDS METAAL EN 

TECHNIEK, Lead Plaintiffs, 

Plaintiffs-Appellees, 

 v. 

NICKOLAS A. KACPROWSKI, 

Objector-Appellant, 

 v. 

MGM MIRAGE, AKA MGM Resorts 

International; JAMES J. MURREN; 

DANIEL J. D'ARRIGO; ROBERT C. 

BALDWIN; DEBORAH HOWER LANNI, 

Co-Executor of the Estate of J. Terrence 

Lanni, 

Defendants-Appellees.

No. 16-15534 

D.C. No. 

2:09-cv-01558-GMN-VCF 

MEMORANDUM*

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 15 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, Chief Judge, Presiding

Submitted September 13, 2017**

San Francisco, California

Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,*** Senior 

District Judge.

Objector Nickolas Kacprowski appeals the district court’s approval of a $75 

million settlement in a securities fraud class action related to a construction on the 

Las Vegas strip. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Kacprowski has standing to appeal the issues raised because he timely 

objected to the approval of the settlement, see Churchill Vill., LLC v. Gen. Elec., 

361 F.3d 566, 572–73 (9th Cir. 2004), and we examine the settlement taken as a 

whole, rather than its individual component parts, for overall fairness, Hanlon v. 

Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

1

 

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Robert H. Whaley, Senior United States District Judge 

for the Eastern District of Washington, sitting by designation.

1 Although he has not filed a claim form, Kacprowski also has standing to 

appeal the fee award because he appeals the settlement as a whole, and not only the 

fee award. Cf. Stetson v. Grissom, 821 F.3d 1157, 1163–64 (9th Cir. 2016)

(objector who fails to participate in settlement and objects only to class counsel’s 

fees generally does not have standing to appeal the fee award); Knisley v. Network 

Assocs., Inc., 312 F.3d 1123, 1126 (9th Cir. 2002) (standing issues arise when 

objector fails to participate in settlement and appeals only the fee award); see also 
3 

2. The extensive notice efforts here satisfied the requirements of due 

process and Federal Rule of Civil Procedure 23(c)(2). See Torrisi v. Tucson Elec. 

Power Co., 8 F.3d 1370, 1374 (9th Cir. 1993). The claims administrator, Gilardi & 

Co. LLC, mailed over 200,000 notices of the proposed settlement to potential class 

members, including 252 institutions holding securities for the benefit of their 

clients (i.e., nominee holders), approximately 4,200 financial institutions registered 

with the SEC, and 456 institutions that monitor securities class actions for their 

investor clients and regularly act on their behalf. Before mailing notices, Gilardi 

checked the potential class members’ names and addresses against the U.S. Postal 

Service’s National Change of Address database to identify any address changes. 

And, it re-mailed notices returned as undeliverable after investigating the potential 

class members’ alternative or updated address information using private databases 

and address locator services. 

Gilardi also published the settlement notice in the national edition of 

Investor’s Business Daily, over a national newswire service, PR Newswire, and on 

the Depository Trust Company’s Legal Notice System, and it established and 

actively maintained a settlement-specific website (www.mgmmiragesecurities

litigation.com). Lastly, the parties sought and obtained a continuance of the 

 

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 948–49 (9th Cir. 2011)

(“[T]he class recovery and the agreement on attorneys’ fees should be viewed as a 

‘package deal.’”).
4 

settlement hearing and an extension of the deadlines to permit more time for absent 

class members to receive notice, opt out, object, and submit their claims.2 We 

conclude that these procedures gave sufficient time and adequate notice “to all 

class members whose names and addresses may be ascertained through reasonable 

effort,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974), and provided “the 

best practicable notice under the circumstances,” Silber v. Mabon, 18 F.3d 1449, 

1454 (9th Cir. 1994).

3. The district court did not clearly abuse its discretion in approving the 

settlement here. See Allen v. Bedolla, 787 F.3d 1218, 1222 (9th Cir. 2015). In 

determining that the settlement was fair, reasonable, and adequate, the district 

court sufficiently considered the Churchill factors, 361 F.3d at 575, found that the 

settlement was not the product of collusion among the negotiating parties, and gave 

“a reasoned response to all non-frivolous objections.” Allen, 787 F.3d at 1224; see 

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011).

3

 

2 The district court also continued the settlement hearing a second time sua 

sponte. 

3 For example, the district court found that the parties had sufficient

information to make an informed decision about the settlement because, among 

other things, discovery produced over nine million pages of documents that the 

parties “reviewed and analyzed significantly.” And, in objecting to the 

settlement’s approval, Kacprowski conceded that he did not have access to that 

information. 
5 

In addition, the parties reached a settlement after extensive negotiations

before a nationally recognized mediator, retired U.S. District Judge Layn R. 

Phillips. Among other things, the district court properly relied on Judge Phillips’s

declaration stating that the settlement “represent[ed] a well-reasoned and sound 

resolution of highly uncertain litigation” and was “the product of vigorous and 

independent advocacy and arm’s-length negotiation conducted in good faith.” 

Lastly, the district court’s approval of the settlement withstands the higher level of 

scrutiny that we apply “when a settlement is negotiated absent class certification” 

because none of the subtle signs of collusion we identified in Allen and Bluetooth

were present here.

4

 Allen, 787 F.3d at 1224; see Bluetooth, 654 F.3d at 947.

4. Nor did the district court abuse its discretion in approving the allocation 

plan, which set a minimum threshold of $10 to receive a distribution from the 

settlement fund. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir. 

2000). It was not clearly erroneous for the district court to find that issuing very 

small checks to class members would cause a disproportionate administrative 

 

4 We reject Kacprowski’s argument that “evidence of collusion between the 

parties was present in the form of a clear sailing provision,” because the settlement 

provision providing that Defendants “shall take no position” as to Plaintiffs’ fee 

application, neither set a ceiling for the amount of fees Plaintiffs could request, see 

Allen, 787 F.3d at 1224, nor provided for the payment of fees separate and apart 

from class funds, see Bluetooth, 654 F.3d at 947; see also id. at 948 (stating that 

the presence of a neutral mediator is “a factor weighing in favor of a finding of 

non-collusiveness”).
6 

expense to the fund because of the costs of mailing the checks, tracking and 

accounting for each payment, following up on uncashed checks, and reissuing 

checks not cashed during their valid periods. The district court properly relied on 

uncontroverted evidence showing that smaller checks, such as those under $10, in 

many instances are never cashed. In addition, the court cited numerous cases that 

have approved similar or higher minimum thresholds. See, e.g., Destefano v. 

Zynga, Inc., No. 12-CV-04007-JSC, 2016 WL 537946, at *15 (N.D. Cal. Feb. 11, 

2016) ($10 threshold); In re Merrill Lynch & Co., Inc. Research Reports Sec. 

Litig., No. 02-MDL-1484JFK, 2007 WL 4526593, at *12 (S.D.N.Y. Dec. 20, 

2007) ($50 threshold).

5. Lastly, the district court did not abuse its broad discretion in awarding 

class counsel the benchmark award of 25% of the settlement fund as attorneys’ 

fees. See Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000). There were no 

special circumstances here indicating that the 25% benchmark award was either 

too small or too large. See Torrisi, 8 F.3d at 1376–77.

Objector shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).

AFFIRMED.