Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1451-REB-PAC (Consolidated with Civil Action Nos. 01-cv-1472-REB-PAC, 01-cv-1527-REB-PAC, 01cv-1616-REB-PAC, 01-cv-1799-REB-PAC, 01-cv-1930-REB-PAC, 01-cv-2083-REBPAC, 02-cv-0333-REB-PAC, 02-cv-0374-REB-PAC, 02-cv-0507-REB-PAC, 02-cv-0658REB-PAC, 02-cv-755-REB-PAC, 02-cv-798-REB-PAC and 04-cv-0238-REB-PAC) In re QWEST COMMUNICATIONS INTERNATIONAL, INC. SECURITIES LITIGATION LEAD COUNSEL'S OPPOSITION TO THE MOTION BY INTERVENORS/OBJECTORS REINER AND FLANAGAN FOR AWARD OF FEES AND COSTS

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Lead Counsel submit this opposition to the motion by intervenors/objectors Reiner and Flanagan (collectively, the "Reiner Objectors") (Docket No. 1079) for an award of fees and costs.1 On September 29, 2006, the Court entered the Order Awarding Attorney Fees and Expenses ("Order") (Docket No. 1051) to Lead Counsel. The Reiner Objectors' counsel now assert that they should be entitled to an award of attorneys' fees and expenses because, in their view, they played a useful and constructive role and worked to benefit the Class because the Court reduced the amount of attorneys' fees and expenses requested by Lead Counsel.2 The truth is that the Reiner Objectors' objection was boilerplate, filed without any meaningful analysis, did not benefit the Class in any way and, we believe, did not assist the Court in its determination of the amount of attorneys' fees and

The Reiner Objectors seek an award of attorneys' fees in the amount of $41,612.50 and expenses of $285.00. The requested expenses include the cost of a plane ticket for Mr. Siegel to attend the final approval hearing. However, Mr. Siegel did not, nor did any counsel for the Reiner Objectors attended the final approval hearing. See paragraphs 4 and 6 to the Declaration of Edward F. Siegel in Support of Reiner and Flanagan Application for Award of Attorney's Fees and Reimbursement of Expenses, dated November 15, 2006 (Docket No. 1079-2).
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1

Tellingly, the objectors' counsel's own clients ­ Reiner and Flanagan ­ do not appear to have joined in the motion in any way as the motion is devoid of any indication that they support the requested relief.

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expenses awarded to Lead Counsel.3 The Reiner Objectors' counsel's request for an award of attorneys' fees and expenses should be rejected.4 The general rule is that an objector's counsel is not entitled to a fee award. In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 572, 593 (D.N.J. 1997); Powers v. Eichen, No. 96CV1431-B (AJB), 2001 U.S. Dist. LEXIS 13561, at *6 (S.D. Cal. Aug. 29, 2001), aff'd, 2002 U.S. App. LEXIS 24159 (9th Cir. Nov. 22, 2002). An award is appropriate only when the objector has had a meaningful impact on the proceedings. Powers, 2001 U.S. Dist. LEXIS 13561, at *6. The critical inquiry is "whether the efforts of objectors' counsel `improved' the settlement, `assisted the court,' and/or `enhanced the recovery' in any discernable fashion." In re Anchor Sec. Litig., No. CV-88-3024, 1991 U.S. Dist. LEXIS 4573, at *3 (E.D.N.Y. Apr. 8, 1991) (citation omitted). Here, the Reiner Objectors' counsel's efforts did not improve the settlement, assist the Court or enhance the Class's recovery and thus are not entitled to an award of

3

While only the Court knows what role the Reiner Objectors played in its decision, Lead Counsel does not believe, based on a review of the Order, that the Reiner Objectors had any impact on the Court's decision. Edward F. Siegel, counsel for the Reiner Objectors, is a professional objector who repeatedly raises boilerplate arguments without any meaningful analysis, just as he has here, in opposition to class action settlements and fee requests in cases throughout the country. For example, in In re AT&T Corp. Sec. Litig., MDL No. 1399, Civ. No. 00-5364 (GEB) (D.N.J.), Mr. Siegel filed similar boilerplate objections that he filed here, which were rejected by the District Court in its order approving the settlement and counsel's fee request. The Third Circuit Court of Appeals affirmed the District Court's decision and rejected the arguments advanced by Mr. Siegel and others on appeal. In re AT&T Corp. Sec. Litig., 455 F.3d 160, 170-75 (3d Cir. 2006). After the Third Circuit Court of Appeals decision, Mr. Reiner and others filed a joint application for attorneys' fees and expenses with the District Court which was also rejected.

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attorneys' fees and expenses. The Reiner Objectors' counsel raises two arguments in support of their request for attorneys' fees and costs. The Reiner Objectors' first

suggestion that, in their absence, this Court would not have made an independent examination of the settlement or Lead Counsel's fee request or an informed decision is baseless, insulting and wrong. It is clear that the Court conducted its own thorough review of the settlement and fee and cost request ­ independent of any of the objections. The Reiner Objectors' counsel's only other claim to an award of attorneys' fees is that the Reiner Objectors were the only objectors "to offer detailed and substantive grounds, along with evidence in support of their position that the fees and expenses should not exceed 15.10% of the Settlement Fund." Reiner Objectors' Motion at paragraph 6 (emphasis omitted) (Docket No. 1079). This so-called "detailed and substantive grounds, along with evidence" consisted of a single published study analyzing fee awards in class action cases. See paragraph 2 to the Objections to Proposed Settlement of Class Action (Docket No. 962). The Court, however, did not rely on this study but instead concluded that "neither the lead plaintiffs nor any objector has proposed a persuasive analytical scheme that explains why high percentages or high lodestar multiples are awarded in some cases, and lower percentages or lodestar multiples are awarded in other cases." See Order at p.10 (Docket No. 1051). Thus, it is hard to see how the submission of a single study that the Court did not rely upon "improved the settlement, assisted the Court[,] . . . enhanced the recovery[,] . . . advance[d] the progress of the litigation or sharpen[ed] any issues."

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Prudential, 962 F. Supp. at 593-94.5 Accordingly, the Court should reject the Reiner Objectors' counsel's request for an award of attorneys' fees. See Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 289 (7th Cir. 2002) (court rejected objectors' attorneys' fee requests finding that the objectors, like counsel here, "added nothing"); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1052 (9th Cir. 2002) ("In the absence of a showing that objectors substantially enhanced the benefits to the class under the settlement, as a matter of law they were not entitled to fees."); In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 360 (N.D. Ga. 1993) (court rejected requests by objectors' attorneys since they did not benefit the class); Bowling v. Pfizer, Inc., 922 F. Supp. 1261, 1285 (S.D. Ohio 1996) (same).

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While not a basis for the Reiner Objectors' counsel's request for attorneys' fees, the Reiner Objectors erroneously argued that Lead Counsel did not make any references to the multiple on counsel's lodestar in its declarations and fee request. In fact, the fee brief filed in support of Lead Counsel's request for an award of attorneys' fees specifically provided the number of hours worked by Lead Plaintiffs' counsel and their paraprofessionals and inhouse experts, the total lodestar information and the resulting multiplier ­ demonstrating that counsel for the Reiner Objectors did not bother to review the application for fees in any meaningful way before filing an objection he now claims was somehow helpful to the Court. The Reiner Objectors also erroneously claimed that after reviewing the Stipulation of Partial Settlement there was no provision for more than one distribution to Class Members. The Stipulation, however, clearly contains such a provision at paragraph 6.6.

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I.

CONCLUSION For the foregoing reasons, Lead Counsel respectfully submit that the Court should

deny the Reiner Objectors' counsel's request for attorneys' fees and expenses. DATED: December 5, 2006 Respectfully submitted, LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP MICHAEL J. DOWD SPENCER A. BURKHOLZ THOMAS E. EGLER JEFFREY D. LIGHT SCOTT H. SAHAM X. JAY ALVAREZ TRIG R. SMITH TED MINAHAN ANDREA N. WILLIAMS

s/ MICHAEL J. DOWD MICHAEL J. DOWD 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP MICHELLE M. McCARRON 9601 Wilshire Blvd., Suite 510 Los Angeles, CA 90210 Telephone: 310/859-3100 310/278-2148 (fax) Lead Counsel for Plaintiffs SHUMAN & BERENS LLP KIP B. SHUMAN JEFFREY A. BERENS 801 East 17th Avenue Denver, CO 80218-1417 Telephone: 303/861-3003 303/830-6920 (fax) Liaison Counsel
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CERTIFICATE OF SERVICE I hereby certify that on December 5, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have caused to be mailed the foregoing document or paper via the United States Postal Service to the nonCM/ECF participants indicated on the attached Manual Notice List.

s/ MICHAEL J. DOWD MICHAEL J. DOWD LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) E-mail: [email protected]

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