UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

THE BOARD OF TRUSTEES OF THE Case No. 09-cv-13201 

CITY OF BIRMINGHAM EMPLOYEES’ 

RETIREMENT SYSTEM, ET AL, Hon. Stephen J. Murphy, III 

Plaintiffs, 

 

v. 

COMERICA BANK, 

Defendant/Third-Party Plaintiff, 

v. 

MUNDER CAPITAL MANAGEMENT, 

Third-Party Defendant. 

MOTION FOR APPLICATION OF PLAINTIFFS’ COUNSEL FOR AN 

AWARD OF ATTORNEY FEES AND EXPENSES 

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For the reasons set forth in the attached Brief in Support of this Motion, 

Plaintiffs’ Counsel respectfully request that this Court award $3,261,745.19 in 

fees, reflecting 30% of the Gross Settlement fund after the deduction of reimbursed 

expenses, and $127,516.02 in expenses, as set forth in the proposed order attached 

as Exhibit A to the Plaintiffs’ Motion for Final Approval of Class Action 

Settlement and Plan of Allocation of Settlement Proceeds. 

Respectfully submitted, 

THE MILLER LAW FIRM, P.C.

Attorneys for Plaintiffs 

By: /s/ E. Powell Miller 

E. POWELL MILLER (P39487) 

MARC L. NEWMAN (P51393) 

CHRISTOPHER D. KAYE (P61918) 

950 West University Drive, Suite 300 

Rochester MI 48307 

248-841-2200 

epm@millerlawpc.com 

SULLIVAN, WARD, ASHER & 

PATTON, P.C. 

Attorneys for Plaintiffs 

By: /s/ Gerard J. Andree (w/ permission)

GERARD J. ANDREE (P25497) 

MICHAEL J. ASHER (P39347) 

25800 Northwestern Highway 

1000 Maccabees Center 

Southfield, MI 48075 

Telephone: 248.746.2731 

Facsimile: 248.746.4805 

gandree@swappc.com

GLANCY BINKOW & GOLDBERG

 LLP 

Attorneys for Plaintiffs 

Lionel Glancy 

Peter Binkow 

Glancy Binkow & Goldberg LLP

1925 Century Park East, Suite 2100

Los Angeles, CA 90067 

ROBINS GELLER RUDMAN & 

DOWD LLP 

Paul J. Geller 

Stephen R. Astley 

120 East Palmetto Park Road, 

Suite 500 

Boca Raton, Florida 33432 

Telephone: (561) 750-3000 

Facsimile: (561) 750-3364

Dated: November 14, 2013 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

THE BOARD OF TRUSTEES OF THE Case No. 09-cv-13201 

CITY OF BIRMINGHAM EMPLOYEES’ 

RETIREMENT SYSTEM, ET AL, Hon. Stephen J. Murphy, III 

Plaintiffs, 

 

v. 

COMERICA BANK, 

Defendant/Third-Party Plaintiff, 

v. 

MUNDER CAPITAL MANAGEMENT, 

Third-Party Defendant. 

BRIEF IN SUPPORT OF APPLICATION OF PLAINTIFFS’ COUNSEL 

FOR AN AWARD OF ATTORNEY FEES AND EXPENSES 

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i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES .................................................................................... ii

I. INTRODUCTION ............................................................................................... 1 

II. AWARD OF ATTORNEY FEES ....................................................................... 4

A. Lead Plaintiff’s Counsel Are Entitled to a Fee From the Traditional 

Common Fund They Obtained .............................................................. 4

B. The Court Should Award Attorney Fees Using the Percentage 

Approach ............................................................................................... 5

C. The Requested Percentage is Appropriate When Compared to the 

Range of Percentage-of-Fund Awards .................................................. 8

D. Consideration of the Relevant Factors Justifies an Award of a Thirty 

Percent Fee in This Case ....................................................................... 9

1. The Value of the Benefit Achieved ............................................ 9

2. Public Policy Considerations .................................................... 10

3. The Risks of Litigation and the Contingent Nature of the Fee . 12

4. The Value of Services on an Hourly Basis ............................... 15

5. The Complexity of the Litigation ............................................. 16

6. The Quality of the Representation ............................................ 17

E. Plaintiffs’ Counsel’s Expenses are Reasonable and Were Necessarily 

Incurred to Achieve the Benefit Obtained .......................................... 18

III. CONCLUSION .................................................................................................. 20 

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ii 

TABLE OF AUTHORITIES 

Cases 

Abrams v. Lightolier, Inc.,	50 F.3d 1204 (3d Cir. 1995) ......................................... 19 

Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) .......................... 14 

Arenson v. Bd. of Trade, 372 F. Supp. 1349 (N.D. Ill. 1974) .................................. 17 

Ass'n v. Dunkle, 946 F.2d 768 (11th Cir. 1991) ......................................................... 7 

Backman v. Polaroid Corp., 910 F.2d 10 (1st Cir. 1990) ........................................ 14 

Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 640 F. Supp. 697 (S.D. Ohio 

1986) ........................................................................................................................ 12 

BCBS v. Wells Fargo, No. 11-2529 (D. Minn. August 9, 2013) ............................. 15 

Behrens v. Wometco Enters., Inc., 118 F.R.D. 534(S.D. Fla. 1988) ( ..................... 10 

Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979) ................ 14 

Blanchard v. Bergeron, 489 U.S. 87 (1989) .............................................................. 6 

Bleznak v. C.G.S. Scientific Corp., 387 F. Supp. 1184 (E.D. Pa. 1974) .................. 11 

Blum v. Stenson, 465 U.S. 886 n.16 (1984) ............................................................... 5 

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ...................................................... 4 

Bowling v. Pfizer, Inc., 922 F. Supp. 1261 (S.D. Ohio 1996) ................................... 7 

Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722 (10th Cir. 1993) ...... 18 

Brown v. Phillips Petroleum Co., 838 F.2d 451 (10th Cir. 1988) ............................. 7 

Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885) ........................................ 6 

Court Awarded Attorney Fees, 108 F.R.D. 237 (October 8, 1985) ........................... 8 

Facility, 173 F.R.D. 205 (S.D. Ohio 1997) ............................................................... 7 

F&M, 1999 U.S. Dist. LEXIS 11090, at *19-20 (multiplier of 1.35) ..................... 15 

Geffon v. Micrion Corp., 249 F.3d 29 (1st Cir. 2001) ............................................. 14 

Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000) .............................. 8 

Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994) ........................................................ 7 

Greebel v. FTP Software, Inc., 194 F.3d 185 (1st Cir. 1999).................................. 14 

Green v. Nuveen Advisory Corp., 295 F.3d 738 (7th Cir. 2002) ............................. 14 

Harman v. Lyphomed, Inc., 945 F.2d 969 (7th Cir. 1991) ........................................ 8 

Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994) ..................................................... 18 

Hensley v. Eckerhart, 461 U.S. 424 (1983) ............................................................. 10 

Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713 (11th Cir. 2012) ................ 14 

In re Cardizem CD Antitrust Litig., No. 99-md-1278, Order (E.D. Mich. Nov. 26, 

2002) ........................................................................................................................ 15 

In re Comshare Inc. Sec. Litig., 183 F.3d 542 (6th Cir. 1999) ................................ 14 

In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 

1990) ........................................................................................................................ 12 

In re Folding Carton Antitrust Litigation, 84 F.R.D. 245, 261 (D.C.Ill., 1979) ..3,10 

2:09-cv-13201-SJM-MJH Doc # 135 Filed 11/14/13 Pg 5 of 30 Pg ID 3320
iii 

In re King Res. Co. Sec. Litig., 420 F. Supp. 610 (D. Colo. 1976) ......................... 16 

In re Lason, Inc. Sec. Litig., No. 99-CV-76079, Order and Final Judgment (E.D. 

Mich. Mar. 31, 2003) ............................................................................................... 15 

In re Prudential-Bache Energy Income P'ships Sec. Litig., No. 888, 1994 WL 

202394 (E.D. La. May 18, 1994) ............................................................................. 13 

In re Sirrom Capital Corp. Sec. Litig., No. 3-98-0643 (M.D. Tenn. Feb. 4, 2000) .. 8 

In re Superior Beverage/Glass Container Consolidated Pretrial, 133 F.R.D. 119, 

131 (N.D. Ill. 1990) .................................................................................................. 15 

In re Telectronics Pacing Sys., 186 F.R.D. 459 (S.D. Ohio 1999) ............................ 6 

Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496, 503-04 (E.D. Mich. 2000)15

Levitin v. Painewebber, Inc., 159 F.3d 698 (2d Cir. 1998) ..................................... 14 

Lindy Bros. Builders v. American Radiator, 540 F.2d 102 (3d Cir. 1975) ............... 3 

Longman v. Food Lion, Inc., 197 F.3d 675 (4th Cir. 1999) .................................... 14 

Mashburn v. Nat'l Healthcare, Inc., 684 F. Supp. 679 (M.D. Ala. 1988) ................. 5 

Miller v. Woodmoor Corp., Nos. 74-F-988, 76-F-567, 1978 WL 1146 (D. Colo. 

Sept. 28, 1978) ......................................................................................................... 16 

Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235 (S.D.N.Y. 1993) ............... 19 

Missouri v. Jenkins, 491 U.S. 274 (1989) .................................................................. 8 

Morse v. McWhorter, No. 3:97-0370 (M.D. Tenn. Mar. 12, 2004) .......................... 8 

Phillips v. LCI Int'l, Inc., 190 F.3d 609 (4th Cir. 1999) .......................................... 14 

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir. 1974) ....................... 11 

Rawlings v. Prudential Bache-Props., 9 F.3d 513 (6th Cir. 1993) ................ 6, 9, 10 

Robbins v. Koger Props., 116 F.3d 1441 (11th Cir. 1997) ...................................... 14 

Silver v. H&R Block, 105 F.3d 394 (8th Cir. 1997) ................................................. 14 

Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939) ................................................ 6 

Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993) ................................ 7 

Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir. 1988) ( ............................ 14 

Warner Commc'ns Sec. Litig.,, 618 F. Supp. 735 (S.D.N.Y. 1985) ........... 11, 12, 17 

White v. Abrams, 495 F.2d 724 (9th Cir. 1974) ....................................................... 11 

G. Hornstein, Legal Therapeutics: The Salvage Factor in Counsel Fee Awards, 69 

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iv 

ISSUES PRESENTED 

Should the Court grant Plaintiffs’ Counsel their requests fees and 

reimbursement of litigation expenses? 

Plaintiffs’ counsel says yes. 

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v 

MOST CONTROLLING AUTHORITY 

Cases 

Boeing Co. v Van Gemert, 444 US 472 (1980)

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1 

I. INTRODUCTION 

Counsel for Plaintiffs in this complex financial class action respectfully 

submit this memorandum of law in support of their request for an award of 

attorney fees of 30% of the Settlement Fund after the deduction of litigation 

expenses, plus their litigation expenses of $127,516.02. The substantial and certain 

recovery obtained for the Class –recovery of $11,000,000 in cash or cashequivalent account credits – was achieved through the skill and effective advocacy 

of Plaintiffs’ Counsel. Plaintiffs’ Counsel’s efforts to date have been without 

compensation of any kind and the fee has been wholly contingent upon the result 

achieved. 

The requested fee – 30% of the fund after the deduction of expenses – is at 

the low end of the range awarded in class actions in this Circuit as well as 

numerous decisions throughout the country, and is the appropriate method of 

compensating counsel. The amount requested is especially warranted in light of 

the substantial recovery secured for the Class, the efforts of Plaintiffs’ Counsel in 

obtaining this result, and the significant risks in bringing the litigation. Indeed, 

absent this settlement, the litigation could have continued for several more years – 

particularly at the appellate level – at considerable expense without the Class 

receiving the benefits of the settlement, thus creating the likelihood that the Class 

would ultimately receive less, or even no recovery. 

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2 

The prosecution and settlement of this litigation required great skill and 

extensive efforts by Plaintiffs’ Counsel. Plaintiffs’ Counsel marshaled 

considerable resources and expended substantial efforts in the prosecution of this 

litigation. The settlement was only achieved after the named Plaintiffs conducted 

substantial effort in prosecuting this action, including, but not limited to: (1) 

conducting an extensive investigation in connection with the filing of the 

Complaint in the Litigation; (2) briefing and prevailing against defendants’ motion 

to dismiss; (3) reviewing a voluminous amount of documents produced during 

discovery; and (4) consulting with experts in structured finance, securities lending, 

and special investment vehicles.1

 Importantly, while this work was all necessary 

and required, Plaintiffs’ Counsel sought to litigate this case as efficiently as 

possible. Indeed, Plaintiffs’ Counsel was able to obtain a favorable settlement 

before taking any depositions. As courts have widely recognized, “[o]ne thousand 

plodding hours may be far less productive than one imaginative, brilliant hour.” G. 

Hornstein, Legal Therapeutics: The Salvage Factor in Counsel Fee Awards, 69 

 1

 Submitted herewith in support of approval of the proposed settlement is 

Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan of 

Allocation of Settlement Proceeds (the “Settlement Brief”), which more fully 

describes the history of the litigation, the claims asserted, the investigation 

undertaken, the negotiation and substance of the settlement, the risks of the 

litigation, and the reasonableness of the fee request. Also submitted herewith are 

declarations from Plaintiffs’ counsel setting forth the time expended and expenses 

incurred in prosecuting the litigation. See Exs. C-G 

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3 

Harv.L.Rev. 658, 660 (1956)(quoted in In re Folding Carton Antitrust Litigation, 

84 F.R.D. 245, 261 (D.C.Ill., 1979). See also Lindy Bros. Builders v. American 

Radiator, 540 F.2d 102 (3d Cir. 1975)(multiplier awarded based in part on class 

counsels’ efficient use of time, even though that factor undoubtedly served to 

diminish the number of hours for which compensation would be forthcoming.) 

Continued litigation posed significant risks for the Class, with ultimate 

success far from certain. As discussed in greater detail in the Settlement Brief, 

continued litigation would be fraught with risks. Defendant would continue to 

adamantly deny any wrongdoing and, at trial, offer testimony and expert analysis 

to support its contentions. Plaintiffs would face the risk that a jury would react 

unfavorably to the evidence presented by them and instead believe the testimony 

and arguments of defendant and find in their favor. Plaintiffs’ Counsel firmly 

believe that the settlement obtained is a very good result for the Class under the 

circumstances and is a result of their creative and diligent efforts. In light of these 

factors, Plaintiffs’ Counsel believe that the percentage fee award requested is fair 

and reasonable. 

In accordance with this Court’s Order Granting Preliminarily Approval of 

Class Action Settlement, Approving Form and Manner of Notice and Setting Date 

for Final Approval of Settlement entered on October 9, 2013, to date an aggregate 

of 105 notices have been sent to potential Class Members. See Declaration of 

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4 

Jennifer Keough re Notice Dissemination (“Keough Decl.”), Ex. A at ¶6. The 

Notice informed the Class that Plaintiffs’ Counsel would make an application for 

attorney fees not to exceed 30% of the Settlement Fund plus reimbursement of 

expenses. For the reasons set forth herein, Plaintiffs’ Counsel respectfully submit 

that the attorney fees and expenses requested are fair and reasonable under the 

applicable legal standards and in light of the contingency risk undertaken, the 

diligent efforts of counsel, and the substantial monetary benefits obtained. Thus, 

Plaintiffs’ Counsel respectfully request that the Court should award such fees and 

expenses. 

II. AWARD OF ATTORNEY FEES 

A. Lead Plaintiff’s Counsel Are Entitled to a Fee From the 

Traditional Common Fund They Obtained 

For over a century, the Supreme Court has recognized the “common fund” 

exception to the general rule that a litigant bears his or her own attorneys’ fees. 

Trs. v. Greenough, 105 U.S. 527 (1882). The rationale for the common fund 

principle was explained in Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980), as 

follows: 

[T]his Court has recognized consistently that a litigant or a lawyer who 

recovers a common fund for the benefit of persons other than himself or 

his client is entitled to a reasonable attorney’s fee from the fund as a 

whole. . . . Jurisdiction over the fund involved in the litigation allows a 

court to prevent . . . inequity by assessing attorney’s fees against the 

entire fund, thus spreading fees proportionately among those benefited 

by the suit. 

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5 

The common fund doctrine both prevents unjust enrichment and encourages 

counsel to protect the rights of those who have relatively small claims. Federal 

courts, therefore, have long recognized that fee awards in successful cases – such 

as the instant one – encourage the prosecution of other actions on behalf of 

individuals with valid claims, and thereby promote private enforcement of, and 

compliance with, important areas of federal and state law, including the federal 

securities laws. See, e.g., Mashburn v. Nat’l Healthcare, Inc., 684 F. Supp. 679, 

687 (M.D. Ala. 1988) (it is “economic reality” that “a financial incentive is 

necessary to entice capable attorneys, who otherwise could be paid regularly by 

hourly-rate clients, to devote their time to complex, time-consuming cases for 

which they may never be paid.”). 

In complex financial class actions, competent counsel for plaintiffs can be 

retained only on a contingent basis. Consequently, a large segment of the public 

would be denied a remedy for violations of investors’ rights if fees awarded by the 

courts did not fairly and adequately compensate counsel for the services provided, 

the risks undertaken, and the delay before any compensation is received. 

B. The Court Should Award Attorney Fees Using the Percentage 

Approach 

The diligent efforts of plaintiffs’ counsel have resulted in the creation of the 

Settlement Fund of $11,000,000. Courts generally favor awarding fees from a 

common fund based upon the percentage-of-the-fund method. See Blum v. 

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6 

Stenson, 465 U.S. 886, 900 n.16 (1984) (stating that in common fund cases “a 

reasonable fee is based on a percentage of the fund bestowed on the class”); 

Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 165-66 (1939); Cent. R.R. & Banking 

Co. v. Pettus, 113 U.S. 116, 124-25 (1885); Greenough, 105 U.S. at 532. In 

contrast to common fund cases, the Supreme Court has always addressed the 

lodestar method in the context of statutory fee-shifting cases. The lodestar in such 

cases is calculated by “‘multiplying the number of hours reasonably expended on 

the litigation times a reasonable hourly rate.’” Blanchard v. Bergeron, 489 U.S. 87, 

94 (1989) (citation omitted). 

Consistent with Supreme Court authority, the Sixth Circuit has also held that 

the percentage approach is a proper method for determining attorney fee awards in 

common fund cases. See, e.g., Rawlings v. Prudential Bache-Props., 9 F.3d 513, 

515-16 (6th Cir. 1993). In fee awards in securities class actions, which like this 

case aggregate the claims of multiple investors, district courts in this Circuit have 

virtually uniformly shifted to the percentage method in awarding fees in common 

fund cases because it fosters judicial economy by eliminating the detailed and 

time-consuming lodestar analysis. See In re Telectronics Pacing Sys., 186 F.R.D. 

459, 483 (S.D. Ohio 1999) (“the preferred method in common fund cases has been 

to award a reasonable percentage of the fund to Class Counsel as attorneys’ fees”), 

rev’d on other grounds, 221 F.3d 870 (6th Cir. 2000); In re F&M Distribs., Inc. 

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7 

Sec. Litig., No. 95-CV-71778-DT, 1999 U.S. Dist. LEXIS 11090, at *8 (E.D. 

Mich. June 29, 1999); In re S. Ohio Corr. Facility, 173 F.R.D. 205, 217 (S.D. Ohio 

1997); Bowling v. Pfizer, Inc., 922 F. Supp. 1261, 1278-79 (S.D. Ohio 1996). 

 The Sixth Circuit is not alone in its use of the percentage approach. The 

vast majority of other Circuits recognize the propriety of percentage fee awards in 

common fund cases and the shortcomings of the lodestar/multiplier method. For 

example, the District of Columbia Circuit held: 

We adopt a percentage-of-the-fund methodology . . . because 

it is more efficient, easier to administer, and more closely 

reflects the marketplace. 

Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1270 (D.C. Cir. 1993). The 

Eleventh Circuit rejected the lodestar approach in all common fund cases, making 

the percentage method mandatory. In Camden I Condo. Ass’n v. Dunkle, 946 F.2d 

768 (11th Cir. 1991), the court reversed a fee order that used the lodestar/multiplier 

method, relying upon statutory fee-shifting principles. The court concluded: 

After reviewing Blum, the [Third Circuit] Task Force Report, 

and the foregoing cases from other circuits, we believe that the 

percentage of the fund approach is the better reasoned in a 

common fund case. 

Id. at 774.2

 2

 Other circuits and commentators have expressly approved the use of the 

percentage method. In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 

1296 (9th Cir. 1994) (“WPPSS”); Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994); 

Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988) (footnote 16 

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8 

C. The Requested Percentage is Appropriate When Compared to the 

Range of Percentage-of-Fund Awards 

In selecting an appropriate percentage award, the Supreme Court recognizes 

that an appropriate fee is intended to approximate what counsel would receive if 

they were bargaining for their services in the marketplace. Missouri v. Jenkins, 

491 U.S. 274, 285 (1989). If this were a nonrepresentative, private action, the 

customary fee arrangement would be contingent, on a percentage basis, and in the 

range of 30% to 40% of the recovery. Blum, 465 U.S. at 903 (“In tort suits, an 

attorney might receive one-third of whatever amount the plaintiff recovers. In 

those cases, therefore, the fee is directly proportional to the recovery.”). Plaintiffs’ 

Counsel’s request for an award of attorneys’ fees of 30% of the Settlement Fund is 

within – and in fact is at the low end of – the range of prior percentage awards 

made by many courts in this District and Circuit. See, e.g., Morse v. McWhorter, 

No. 3:97-0370 (M.D. Tenn. Mar. 12, 2004) (J. Higgins) (awarding a one-third fee 

of $49.5 million settlement plus expenses); In re Sirrom Capital Corp. Sec. Litig., 

No. 3-98-0643 (M.D. Tenn. Feb. 4, 2000) (J. Campbell) (awarding one-third of a 

$15 million settlement plus expenses). In addition, the requested fee also 

 

of Blum recognizes both “implicitly” and “explicitly” that a percentage recovery is 

reasonable in common fund cases); Harman v. Lyphomed, Inc., 945 F.2d 969, 975 

(7th Cir. 1991); Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); 

Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 

237, 254 (October 8, 1985). 

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9 

constitutes the median of fee awards in a study of securities class actions 

conducted by the defense-oriented firm of National Economic Research Associates 

(“NERA”). The study found that for settlements between $10 million and $20 

million that were finalized from 1996 through June 2012, median plaintiffs’ 

attorneys’ fees are 30% of the settlement amount. Ex. B, at 31. Counsel’s request 

here is rendered all the more reasonable since it constitutes 30% of the settlement 

fund after the deduction of litigation expenses. 

D. Consideration of the Relevant Factors Justifies an Award of a 

Thirty Percent Fee in This Case 

Plaintiffs’ Counsel seek an award of 30% from the fund that they created 

and submit such an award is reasonable and appropriate under the circumstances. 

The ultimate task for the court is to ensure that counsel is fairly compensated for 

the work performed and the result achieved. Rawlings v. Prudential-Bache Props., 

9 F.3d 513, 516 (6th Cir. 1993). Consideration of the factors enumerated by the 

Sixth Circuit in determining the fairness of an attorney fee request confirms that a 

30% fee award is justified under the circumstances of this case and the fee is fair 

and reasonable. 

1. The Value of the Benefit Achieved 

Plaintiffs’ Counsel have secured a settlement that provides for a substantial 

and certain cash or cash-equivalent payment of $11,000,000 for the benefit of the 

Class. Courts have consistently recognized that the result achieved is a major factor 

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10 

to be considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 

(1983) (“most critical factor is the degree of success obtained”); Rawlings, 9 F.3d 

at 516 (a percentage of the fund will compensate counsel for the result achieved); 

Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 547-48 (S.D. Fla. 1988) (“The 

quality of work performed in a case that settles before trial is best measured by the 

benefit obtained.”), aff’d, 899 F.2d 21 (11th Cir. 1990). The $11,000,000 cash and 

cash-equivalent settlement here provides a substantial and certain benefit to the 

Class. This favorable settlement was achieved as a result of the creative 

prosecutorial and investigative efforts of Plaintiffs’ Counsel, including the 

contentious motion practice and settlement negotiations detailed in the Settlement 

Brief. See In re Folding Carton Antitrust Litigation, 84 F.R.D. at 261 (creative, 

efficient hours more valuable than a thousand plodding hours.) As a result of this 

settlement, the Class Members will benefit and receive compensation for a portion 

of their losses and avoid the very real risk of no recovery in the absence of a 

settlement. 

2. Public Policy Considerations 

Plaintiffs’ counsel in complex financial class action litigation are invariably 

retained on a contingent basis, largely due to the significant commitment of time 

and expense required. The typical class representative is unlikely to be able to 

pursue long and protracted litigation at his or her own expense, particularly with 

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11 

the knowledge that others similarly situated will be able to “free-ride” on these 

efforts at no cost or risk to themselves. This is especially true where, as here, the 

claims pertain to a specific type of investment – a “special investment vehicle” –

held in a particular type of investment pool – the cash collateral invested as part of 

a security lending program. The number of potential experts regarding these issues 

is severely limited, making their retention cost-prohibitive for all but the largest 

claims. Furthermore, the significant expense combined with the high degree of 

uncertainty of ultimate success means that contingent fees are virtually always 

required for such cases. Adequate compensation to encourage attorneys to assume 

the risk of litigation is in the public interest. Indeed, without adequate 

compensation for plaintiffs’ counsel, victims of malinvestment would be prevented 

from pursuing their claims. Thus, an important factor is “society’s stake in 

rewarding attorneys who produce such benefits in order to maintain an incentive to 

others.” Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974); 

see also White v. Abrams, 495 F.2d 724, 730-31 (9th Cir. 1974); Bleznak v. C.G.S. 

Scientific Corp., 387 F. Supp. 1184, 1189 (E.D. Pa. 1974). In In re Warner 

Commc’ns Sec. Litig., 618 F. Supp. 735 (S.D.N.Y. 1985), Judge Keenan described 

the public policy considerations involved in adequately compensating class action 

lawyers in financial class actions: 

The federal securities laws are remedial in nature and, in 

order to effectuate their statutory purpose of protecting 

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12 

investors and consumers, private lawsuits should be 

encouraged. 

* * * 

Fair awards in cases such as this encourage and support 

other prosecutions, and thereby forward the cause of 

securities law enforcement and compliance. 

Id. at 750-51, aff’d, 798 F.2d 35 (2d Cir. 1986). Other courts have expressed 

similar views. See, e.g., Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 640 

F. Supp. 697, 702 (S.D. Ohio 1986); In re Dun & Bradstreet Credit Servs. 

Customer Litig., 130 F.R.D. 366, 373 (S.D. Ohio 1990). Without the willingness 

of Plaintiffs’ Counsel to assume that task, members of the Class would not have 

recovered anything, let alone the substantial recovery obtained here for their 

benefit. 

3. The Risks of Litigation and the Contingent Nature of the 

Fee 

A determination of a fair fee must include consideration of the contingent 

nature of the fee and the difficulties that were overcome in obtaining the 

settlement. 

It is an established practice in the private legal market to 

reward attorneys for taking the risk of non-payment by 

paying them a premium over their normal hourly rates for 

winning contingency cases. See Richard Posner, Economic 

Analysis of Law §21.9, at 534-35 (3d ed. 1986). Contingent 

fees that may far exceed the market value of the services if 

rendered on a non-contingent basis are accepted in the legal 

profession as a legitimate way of assuring competent 

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representation for plaintiffs who could not afford to pay on 

an hourly basis regardless whether they win or lose. 

WPPSS, 19 F.3d at 1299. 

In awarding counsel’s attorneys’ fees in In re Prudential-Bache Energy 

Income P’ships Sec. Litig., No. 888, 1994 WL 202394 (E.D. La. May 18, 1994), 

the court noted the risks that plaintiffs’ counsel had taken: 

Although today it might appear that risk was not great based 

on Prudential Securities’ global settlement with the Securities 

and Exchange Commission, such was not the case when the 

action was commenced and throughout most of the litigation. 

Counsel’s contingent fee risk is an important factor in 

determining the fee award. Success is never guaranteed and 

counsel faced serious risks since both trial and judicial 

review are unpredictable. Counsel advanced all of the costs 

of litigation, a not insubstantial amount, and bore the 

additional risk of unsuccessful prosecution. 

Id. at *6. 

Plaintiffs’ Counsel prosecuted this action on a wholly contingent basis. 

There are numerous cases where plaintiffs’ counsel in contingent cases such as this 

– after the expenditure of thousands of hours – have received no compensation. 

Plaintiffs’ Counsel are aware of many hard-fought lawsuits where, because of the 

discovery of facts unknown when the case was commenced, or changes in the law 

during the pendency of the case, or a decision of a judge or jury following a trial 

on the merits, excellent professional efforts of members of the plaintiffs’ bar 

produced no fee for counsel. There are many appellate decisions affirming 

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summary judgment and directed verdicts for defendants in financial class actions.3 

Even plaintiffs who succeed at trial may find their judgment overturned on appeal. 

For example, plaintiffs’ lawyers lost a substantial investment of time and money in 

a large investor class action in Robbins v. Koger Props., 116 F.3d 1441 (11th Cir. 

1997), when the Court of Appeals reversed a jury verdict of $81 million against an 

accounting firm after a 19-day trial in Jacksonville, Florida.4

Securities lending litigation is especially fraught with risk at the trial stage. 

For example, this past August, a jury in the United States District Court for the 

District of Minnesota heard a six-week trial in a case brought by several 

 3

 See, e.g., Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713 (11th Cir. 2012); 

Green v. Nuveen Advisory Corp., 295 F.3d 738 (7th Cir. 2002); Geffon v. Micrion 

Corp., 249 F.3d 29 (1st Cir. 2001); Greebel v. FTP Software, Inc., 194 F.3d 185 

(1st Cir. 1999); Longman v. Food Lion, Inc., 197 F.3d 675 (4th Cir. 1999); Phillips 

v. LCI Int’l, Inc., 190 F.3d 609 (4th Cir. 1999); In re Comshare Inc. Sec. Litig., 183 

F.3d 542 (6th Cir. 1999); Levitin v. Painewebber, Inc., 159 F.3d 698 (2d Cir. 

1998); Silver v. H&R Block, 105 F.3d 394 (8th Cir. 1997). 

4

 See also, e.g., Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) 

(Tenth Circuit overturned securities fraud class action jury verdict for plaintiffs in 

case filed in 1973 and tried in 1988 on the basis of 1994 Supreme Court opinion); 

In re Apple Computer Sec. Litig., No. C-84- 20148-(A)-JW, 1991 U.S. Dist. 

LEXIS 15608 (N.D. Cal. Sept. 6, 1991) (verdict against two individual defendants, 

but court vacated judgment on motion for judgment notwithstanding the verdict); 

Backman v. Polaroid Corp., 910 F.2d 10 (1st Cir. 1990) (where the class won a 

substantial jury verdict and motion for judgment n.o.v. was denied, on appeal the 

judgment was reversed and the case was dismissed – after 11 years of litigation); 

Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979) 

(multimillion dollar judgment reversed after lengthy trial); Ward v. Succession of 

Freeman, 854 F.2d 780 (5th Cir. 1988) (reversing plaintiffs’ jury verdict for 

securities fraud). 

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participants in Wells Fargo’s securities lending program. The plaintiffs’ claims in 

that case were broadly similar to the claims in this case. The jury granted Wells 

Fargo a “no-cause” verdict. BCBS v. Wells Fargo, No. 11-2529 (D. Minn. August 

9, 2013). 

4. The Value of Services on an Hourly Basis 

A considerable effort on the part of Plaintiffs’ Counsel was required to 

obtain the settlement for the benefit of the Class. Plaintiffs’ Counsel and other 

counsel for plaintiffs have committed over 6,300 hours in the prosecution of this 

Litigation. The resulting “lodestar” is $3,329,680.25. This is very close to the 

requested fee: $11,000,000 minus the requested expenses of $127,516.02 results in 

a total of $10,872,483.98; 30% of this sum is $3,261,745.19. Although courts 

commonly award a “multiplier,” or enhancement, in cases of this type,5

 here the 

 

5

 The multiplier is the ratio of the awarded fee to counsel’s lodestar. In one 

frequently-cited case, a District Court found that “multipliers should compensate 

counsel for the risk they incurred in bringing a case in which their compensation 

was contingent on their success, should recognize any extraordinary performance 

by particular counsel and should encourage the filing of meritorious class actions.”

In re Superior Beverage/Glass Container Consolidated Pretrial, 133 F.R.D. 119, 

131 (N.D. Ill. 1990). Courts in this See, e.g., In re Lason, Inc. Sec. Litig., No. 99-

CV-76079, Order and Final Judgment (E.D. Mich. Mar. 31, 2003) (Tarnow, J.) 

(awarding fees that amount to a multiplier of 1.8 multiplier); In re Cardizem CD 

Antitrust Litig., No. 99-md-1278, Order (E.D. Mich. Nov. 26, 2002) (Edmunds, J.) 

(multiplier of 3.7); Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496, 503-04 

(E.D. Mich. 2000) (2.49 multiplier); F&M, 1999 U.S. Dist. LEXIS 11090, at *19-

20 (multiplier of 1.35). The fact that the multiplier here is negative shows that the 

requested fee is inherently reasonable. 

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fee requested is actually less than the aggregate lodestar, reflecting a negative 

multiplier of .98 

5. The Complexity of the Litigation 

Prosecution of any complex financial class action presents inherently 

complex and novel issues. Courts have recognized this complexity in the context of 

securities fraud cases: 

The benefit to the class must also be viewed in its relationship to 

the complexity, magnitude, and novelty of the case. . . . 

Despite years of litigation, the area of securities law has gained 

little predictability. There are few “routine” or “simple” securities 

actions. Courts are continually modifying and/or reversing prior 

decisions in an attempt to interpret the securities law in such a way as 

to follow the spirit of the law while adapting to new situations which 

arise. Indeed, many facets of securities law have taken drastically new 

directions during the pendency of this action. . . . 

The complexity of a case is compounded when it is certified as a 

class action. . . . Management of the case, in and of itself, is a 

monumental task for counsel and the Court. 

Miller v. Woodmoor Corp., Nos. 74-F-988, 76-F-567, 1978 WL 1146, at *4 (D. 

Colo. Sept. 28, 1978); see also In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 

632 (D. Colo. 1976) (securities litigation involves “unique and substantial issues of 

law in the technical area of SEC Rule 10b-5, . . . difficult, complex and oftdisputed class action questions, and difficult questions regarding computation of 

damages”). The issues raised here were, if anything, more complex than in a 

securities fraud case – at least securities fraud plaintiffs have a wide body of 

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reported law on which to draw in prosecuting their claims, while there is only 

limited law addressing securities lending claims. This case raised multiple 

specific, novel issues, including but not limited to the foreseeability of the 2007-

2008 financial crisis, the amount of risk appropriate for securities lending cash 

collateral investments, the appropriate methods for managing such risk, the point in 

time during 2007 at which prudent investment professionals should have been 

aware of the risks to the structured finance market, the specific market for Sigma 

notes during 2007 and 2008, and the appropriate measure of damages should a 

securities lending program manager be found liable for the malinvestment of cash 

collateral. 

6. The Quality of the Representation 

Plaintiffs’ Counsel are nationally known leaders in the fields of investment 

class actions and complex litigation. The quality of the representation is 

demonstrated by the substantial benefit achieved for the Class and the efficient, 

effective prosecution and resolution of the action. The quality of opposing counsel 

is also important when the court evaluates the services rendered by plaintiffs’ 

counsel. See, e.g., Warner Commc’ns, 618 F. Supp. at 749; King Res., 420 F. 

Supp. at 634; Arenson v. Bd. of Trade, 372 F. Supp. 1349, 1351 (N.D. Ill. 1974). 

Nationally known, prominent, and extremely capable counsel represented 

defendant and vigorously defended this action. The ability of Plaintiffs’ Counsel 

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to obtain a favorable result for the Class in the face of such formidable opposition 

further evidences the quality of their work. 

Thus, there can be no dispute that all of the factors discussed above weigh in 

favor of the fee and expense award requested, and that the Court should grant 

Plaintiffs’ Counsel’s fee and expense application in its entirety. 

E. Plaintiffs’ Counsel’s Expenses are Reasonable and Were 

Necessarily Incurred to Achieve the Benefit Obtained 

Plaintiffs’ Counsel also request reimbursement of expenses incurred by 

Plaintiffs’ Counsel in connection with the prosecution of this litigation. Plaintiffs’ 

Counsel have submitted separate declarations in support of their expense request. 

Plaintiffs’ Counsel and other counsel for plaintiffs have incurred expenses in the 

aggregate amount of $127,516.02 in prosecuting this litigation. 

The appropriate analysis to apply in deciding which expenses are 

compensable in a common fund case of this type is whether the particular costs are 

of the type typically billed by attorneys to paying clients in the marketplace. 

Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (“Harris may recover as part of 

the award of attorney’s fees those out-of-pocket expenses that ‘would normally be 

charged to a fee paying client.’”) (citation omitted). Therefore, it is proper to 

reimburse reasonable expenses even though they are greater than taxable costs. Id; 

see also Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 725-26 (10th 

Cir. 1993) (expenses reimbursable if they would normally be billed to client); 

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Abrams v. Lightolier, Inc., 50 F.3d 1204, 1225 (3d Cir. 1995) (expenses 

recoverable if customary to bill clients for them); Miltland Raleigh-Durham v. 

Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993) (“Attorneys may be compensated 

for reasonable out-of-pocket expenses incurred and customarily charged to their 

clients, as long as they ‘were incidental and necessary to the representation’ of 

those clients.”) (citation omitted). The categories of expenses for which counsel 

seek reimbursement here are the type of expenses routinely charged to hourly 

clients and, therefore, should be reimbursed out of the common fund. 

A component of Plaintiffs’ Counsel’s expenses is the cost of experts. 

Plaintiffs’ Counsel retained experts who consulted on structured finance, securities 

lending collateral investment, and special investment vehicles. These experts 

provided significant services on behalf of the Class and their expenses were 

necessarily incurred for the successful prosecution of this litigation. Plaintiffs’ 

counsel was also required to engage the services of an expert in computer forensic 

analysis in order to procure electronically-stored data for discovery production. 

Plaintiffs’ Counsel also incurred other expenses necessary to achieve the 

result obtained. It is standard practice for attorneys to use computerized research 

to assist them in researching legal and factual issues. These services allowed 

counsel access to various Sigma-related documents, financial reports, and media 

stories. Plaintiffs’ Counsel were also required to travel in connection with this 

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litigation, and thus incurred the related costs of meals, lodging, and transportation. 

Counsel in this case traveled to appear before the Court for hearings and to attend 

mediation. Other expenses that were necessarily incurred in the prosecution of this 

litigation include expenses for mediation fees, photocopying, filing and witness 

fees, postage and overnight delivery, and telephone and telecopier expenses. 

Notably, by successfully negotiating a favorable settlement, Plaintiffs’ Counsel 

was able to avoid many of the expenses of protracted litigation, such as those 

associated with depositions. 

III. CONCLUSION 

For all of the foregoing reasons, Plaintiffs’ Counsel respectfully request that 

the Court approve Plaintiffs’ Counsel’s application for attorneys’ fees and 

reimbursement of expenses. 

THE MILLER LAW FIRM, P.C.

Attorneys for Plaintiffs 

By: /s/ E. Powell Miller 

E. POWELL MILLER (P39487) 

MARC L. NEWMAN (P51393) 

CHRISTOPHER D. KAYE (P61918) 

950 West University Drive, Suite 300 

Rochester MI 48307 

248-841-2200 

epm@millerlawpc.com 

SULLIVAN, WARD, ASHER & 

PATTON, P.C. 

Attorneys for Plaintiffs 

By: /s/ Gerard J. Andree (w/ permission)

GERARD J. ANDREE (P25497) 

MICHAEL J. ASHER (P39347) 

25800 Northwestern Highway 

1000 Maccabees Center 

Southfield, MI 48075 

Telephone: 248.746.2731 

Facsimile: 248.746.4805 

gandree@swappc.com

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21 

GLANCY BINKOW & GOLDBERG

 LLP 

Attorneys for Plaintiffs 

Lionel Glancy 

Peter Binkow 

Glancy Binkow & Goldberg LLP

1925 Century Park East, Suite 2100

Los Angeles, CA 90067 

ROBINS GELLER RUDMAN & 

DOWD LLP 

Paul J. Geller 

Stephen R. Astley 

120 East Palmetto Park Road, 

Suite 500 

Boca Raton, Florida 33432 

Telephone: (561) 750-3000 

Facsimile: (561) 750-3364

Dated: November 14, 2013 

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1 

CERTIFICATE OF SERVICE 

I hereby certify that on November 14, 2013, I electronically filed the 

foregoing document with the Clerk of the Court using the ECF system, which will 

automatically send notification of such filing to all attorneys of record registered 

for electronic filing. 

Respectfully submitted, 

THE MILLER LAW FIRM, P.C. 

 By: /s/ E. Powell Miller___________ 

THE MILLER LAW FIRM, P.C. 

E. Powell Miller (P39487) 

Christopher D. Kaye 

Marc L. Newman 

950 West University Drive, Suite 300 

Rochester, MI 48307 

Telephone: (248) 841-2200 

Facsimile: (248) 652-2852 

 GLANCY BINKOW & GOLDBERG LLP 

 Lionel Z. Glancy 

Peter A. Binkow 

Ex Kano S. Sams II 

1925 Century Park East, Suite 2100 

 Los Angeles, California 90067 

Telephone: (310) 201-9150 

Facsimile: (310) 201-9160 

Lead Counsel and Class 

Counsel 

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