United States District Court, W.D. Missouri, Central Division
MEMORANDUM AND ORDER
NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE.
Counsel for plaintiffs seek an award of attorneys' fees
in the amount of $18, 331, 500, the reimbursement of
reasonable expenses incurred in prosecuting this action in
the amount of $2, 256, 805, and compensation to each of the
class representatives in the amount of $25, 000 from the
common fund created from the Settlement in this matter
(“Motion”). Doc. 863. The Court has reviewed
Class Counsel's request and supporting evidence, prior
orders and attorney fee applications made in this case, as
well as attorneys' fees and class representative awards
from similar cases. For the reasons stated herein, the Court
will grant the Motion.
December 29, 2006, Plaintiffs filed this case against ABB,
Inc. and certain plan fiduciaries (collectively
“ABB”) on behalf of the Personal Retirement
Investment and Savings Management Plan and the Personal
Retirement Investment and Savings Management Plan for
Represented Employees of ABB, Inc. (collectively the
“Plans”). Two Court-ordered mediations were held
before trial without a settlement.
month-long trial was conducted, the Court issued its Order
and Judgment for Plaintiffs finding that ABB breached its
fiduciary duties of prudence and loyalty to the Plans by: (1)
failing to monitor and ensure the reasonableness of the
Plans' recordkeeping fees ($13.4 million in losses) and
(2) removing the Vanguard Wellington fund and replacing it
with the Fidelity Freedom funds ($21.8 million in losses).
See Doc. 623. Under the ERISA fee-shifting
provision, the Court also entered an award of attorneys'
fees to Class Counsel, finding that:
[t]he case . . . involved significant novel legal questions
regarding the extent of the fiduciary duties owed by plan
administrators under ERISA and will have a general deterrent
effect on similarly situated fiduciaries … In
addition, the results of this case may help benefit other
plan beneficiaries, in the event of similar litigation, by
further clarifying the duty of loyalty and prudence owed by
record keepers and employers.
Doc. 718, p. 3. At that time, the attorneys' fee award
was $12, 947, 747.68, approximately one-third of the monetary
award. See generally id. Injunctive relief was also
granted, which was estimated to have a value at that time of
at least as much as the monetary relief originally ordered by
the Court. Doc. 782, n.5.
appealed this Court's trial order and decision to the
Eighth Circuit Court of Appeals. The Eighth Circuit upheld
the district court's finding that ABB breached its
fiduciary duty to monitor Plan recordkeeping fees and its
finding of damages on that claim. The Court of Appeals,
however, reversed this Court's ruling on the removal and
replacement of the Vanguard Wellington fund. See Tussey
v. ABB, Inc., 746 F.3d 327, 338 (8th Cir.
remand, this Court again found that ABB breached its
fiduciary duty on the Wellington claim but ruled for ABB on
the issue of damages. Doc. 771. After a second appeal, the
case was remanded for calculation of damages on
Plaintiffs' Vanguard Wellington claim. See Tussey v.
ABB, Inc., 850 F.3d 951 (8th Cir. 2017).
the issue of damages on the Wellington Vanguard claim was
being litigated, the parties engaged in a third, and
ultimately successful, mediation. The Court preliminarily
approved the parties' settlement agreement on April 2,
2019. Doc. 861. Notices were sent on June 14, 2019 to all
members of the potential class, which included information
pertaining to the Class Counsel's requested fee of
approximately one-third from the Settlement fund, the
requested reimbursement of expenses, and the incentive awards
to the class representatives.
In a common fund settlement, a percentage of the recovery for
an award of attorneys' fees is appropriate.
the “common fund” doctrine, Class Counsel is
entitled to an award of reasonable attorneys' fees from
the settlement proceeds. Fed.R.Civ.P. 23(h); Boeing Co.
v. Van Gemert, 444 U.S. 472, 478 (1980). “Courts
utilize two main approaches to analyzing a request for
attorney fees”-the “lodestar” approach or
the “percentage of the benefit” approach.
Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 244
(8th Cir. 1996). While “[i]t is within the discretion
of the district court to choose which method to apply,
” in common fund cases, the percentage of the benefit
approach is generally recommended. Id. at 245-46;
see also Koenig v. U.S. Bank N.A., 291 F.3d 1035,
1038 (8th Cir. 2002). In such cases, the benefit should be
based on both the monetary and the non-monetary value of the
settlement. Beesley v. Int'l Paper Co., No.
06-703, 2014 WL 375432, at *1 (S.D. Ill. Jan. 31, 2014)
(citing Manual for Complex Litigation (Fourth) § 21.71
(2004)); Principles of the Law of Aggregate
Litigation, A.L.I., § 3.13(b) (May 20, 2009)
(“a percent-of-the-fund approach should be the method
utilized in most common-fund cases, with the percentage being
based on both the monetary and the nonmonetary value of the
settlement.”); cf. Blanchard v. Bergeron, 489
U.S. 87, 95 (1989) (cautioning against an “undesirable
emphasis” on monetary “damages” that might
“shortchange efforts to seek effective injunctive or
the “Eighth Circuit has not laid out factors that a
district court must consider when determining whether a
percentage of the common fund is
reasonable…[d]ecisions from this Court have relied on
factors set forth by other Circuits, including the Third and
Fifth Circuits.” Yarrington v. Solvay Pharms.,
Inc., 697 F.Supp.2d 1057, 1061-62 (D. Minn. 2010)
(citing Carlson v. C.H. Robinson Worldwide, Inc.,
No. 02-3780, 2006 U.S. Dist. LEXIS 67108, at *7 (D. Minn.
Sept. 18, 2006)). In Yarrington, this Court
considered seven factors: (1) the benefit conferred on the
class; (2) the risk to which plaintiffs' counsel was
exposed; (3) the difficulty and novelty of the legal and
factual issues of the case; (4) the skill of the lawyers,
both plaintiffs' and defendants'; (5) the time and
labor involved; (6) the ...