Full opinion text
OPINION AND ORDER SHIRAA. SCHEINDLIN, United States District Judge: I. INTRODUCTION This consolidated action comprises hundreds of securities class actions brought against issuers and underwriters of technology stocks that had their initial public offerings (“IPOs”) during the late 1990s. On April 2, 2009, the parties filed a Stipulation and Agreement of Settlement (“Stipulation”) that seeks to conclude eight years of litigation in all 309 coordinated class actions. Following the Court’s preliminary approval of the proposed settlement, plaintiffs now move for an Order of Final Approval of the Settlement, Plan of Allocation, and Class Certification. The Plaintiffs’ Executive Committee (the “Committee”) moves the Court to grant Attorneys’ Fees and Reimbursement of Expenses and Private Securities Litigation Reform Act (“PSLRA”) Awards to the Lead Plaintiffs and Class Representatives of the 309 settled actions. For the reasons stated below, plaintiffs’ motion for an Order of Final Approval of the Settlement, Plan of Allocation, and Class Certification is granted. The Committee’s motion for the Award of Attorneys’ Fees and Expenses and PSLRA Awards is granted, but not for the amounts requested. II. BACKGROUND A. Plaintiffs’ Allegations Plaintiffs’ allegations are discussed at length in a series of earlier Opinions. In brief, plaintiffs allege that the underwriters of hundreds of IPOs required allocants in those IPOs to purchase shares in the aftermarket, often at inflated prices, and to pay the underwriters undisclosed compensation. Additionally, the underwriters allegedly prepared analyst reports that contained inaccurate information and recommendations. Plaintiffs allege that the issuers participated in or were at least aware of this misconduct and benefitted financially by large run-ups in the prices of their stock. Finally, plaintiffs allege that they lost billions of dollars as a result of these manipulations and the fraudulent statements made to cover up the scheme. Plaintiffs have brought claims under both the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”). B. Settlement Terms In April 2009, the parties entered into a global settlement of the 309 cases, which is subject to this Court’s approval. The Stipulation provides that defendants will pay a total of $586 million (“Settlement Amount”) in exchange for plaintiffs releasing all Settled Claims against them. The Stipulation further provides that the Settlement Amount less any advances will be deposited into an escrow account at least fourteen days before the date of the fairness hearing. The parties have stipulated that final approval of the settlement in all of the actions is required. C. Class Certification On October 13, 2004,1 issued an Opinion and Order certifying classes in each of six focus cases. The classes consisted of “all persons and entities that purchased or otherwise acquired the securities of [the issuer] during the Class Period and were damaged thereby, subject to various exclusions.” The Class Periods for the Exchange Act claims were the periods from the respective IPOs through December 6, 2000. For the Securities Act Claims, the Class Periods were limited to periods in which all tradeable shares in the market could be traced to the IPOs. In June 2005, the Second Circuit granted defendants’ petition for leave to appeal pursuant to Rule 23© of the Federal Rules of Civil Procedure. The Circuit directed the parties to address the proper standard for a class certification motion and whether the Basic v. Levinson presumption of reliance was appropriately extended to plaintiffs’ claims. On December 5, 2006, the Second Circuit announced its Opinion in Miles v. Merrill Lynch & Co. (“Miles I”). In Miles I, the Circuit revised the standard to be applied in class certification actions and then applied that new standard to this case. The court also concluded that plaintiffs “cannot satisfy the predominance requirement for a(b)(3) class action” because individual questions predominated over common questions in the areas of knowledge and reliance. First, the court held that plaintiffs could not take advantage of the Basic presumption of reliance. The court noted that “the market for IPO shares is not efficient,” citing the fact that no analyst reports are published during the 25-day “quiet period.” Second, the court ruled that many potential claimants would have known that the price was “affected by the alleged manipulation,” thereby making it difficult for plaintiffs to prove that they were ignorant of inflated prices, a prerequisite of a section 10(b) claim. The court noted that the classes as defined included initial IPO allocants, who were “required to purchase in the aftermarket” and who were “fully aware of the obligation that is alleged to have artificially inflated share prices.” It also noted plaintiffs’ admission that there was an “industry-wide understanding” of aftermarket purchases, evidenced by the knowledge of the many thousands of people employed by the institutional investors who had been parties to the tie-in agreements and by news reports arid a Securities Exchange Commission (“SEC”) Staff Legal Bulletin that had publicized such practices in 1999 and 2000. This appeared to close the door on any opportunity for class certification in these cases. However, on April 6, 2007, the Miles panel issued a decision denying rehearing of Miles I but clarifying certain points in its original opinion (“Miles II”). Plaintiffs had argued in their petition for rehearing that the Circuit had erred both in finding that predominance could not be satisfied and in failing to remand to this Court for evaluation of the class under the clarified standard. Specifically, plaintiffs argued that non-allocants who purchased shares in the aftermarket “would have relied on the market price of the shares and would have lacked knowledge of the alleged fraud....” The Circuit explained that its decision in Miles I applied only to the broad class certified by this Court. Thus, the Circuit resolved both of plaintiffs’ arguments by observing that “[n]othing in [Miles I] precludes the Petitioners from returning to the District Court to seek certification of a more modest class, one as to which the Rule 23 criteria might be met, according to the standards we have outlined.” The Circuit concluded, “we leave it to the Petitioners in the first instance to seek whatever relief they deem appropriate from the District Court, which can be expected to give such a request full and fair consideration.” According to the Stipulation, the parties have agreed to class certification in each of the 309 cases pursuant to Rule 23(a) and Rule 23(b)(3): [A]ll Persons who purchased or otherwise acquired any of the Subject Securities at issue in such case during the Settlement Class Period applicable to such action and were damaged thereby. (a) Subject to the review provisions provided in Paragraph 20 [of the Stipulation], excluded from the Settlement Class is each Person, other than a Natural Person, that was identified as a recipient of an allocation of shares from the “institutional pot” in the IPO or Other Charged Offering of any of the 309 Subject Securities, according to a list derived from the final “institutional pot” list created at the time of each IPO or Other Charged Offering by the lead Underwriter in that Offering (“Excluded Allocants”). (b) Also excluded from the Settlement Classes are (i) each Person that currently is or previously was a named defendant in any of the 309 Actions (hereafter “Named Defendant”), (ii) any attorney who has appeared in the Actions on behalf of a Named Defendant, (iii) members of the immediate family of any Named Defendant, (iv) any entity in which any Excluded Allocant or Named Defendant has or during any of the class periods had a majority interest, (v) the legal representatives, heirs, successors or assigns of any Excluded Allocant or Named Defendant; and (vi) any director, officer, employee, or beneficial owner of any Excluded Allocant or Named Defendant during any of the Settlement Class Periods. Notwithstanding the prior sentence, a person shall not be excluded from the Settlement Classes merely by virtue of his, her or its beneficial ownership of the securities of a publicly-traded Excluded Allocant or Named Defendant. In each settled action, the Class Period is from the date of the IPO until December 6, 2000. In a June 10, 2009 Opinion and Order (“June Opinion and Order”), I certified the settlement classes in this case after reconsidering the Rule 23(a) and (b) factors in light of the Circuit’s new standards. I held that plaintiffs had demonstrated by the preponderance of the evidence that reliance and loss causation could be proven on a class-wide basis. I also ruled that “when the classes are properly circumscribed and institutional allocants are excluded, individual questions of knowledge will not predominate over common ones.” Finally, the class no longer excludes those retail investors who may have “paid any undisclosed compensation to the allocating underwriter(s),” which the Second Circuit found problematic in Miles J. Instead, the settlement classes exclude all institutional investors who were also initial allocants whether or not they may have paid improper and undisclosed compensation to the underwriter defendants, therefore resolving the ascertainability problems in the 2004 class certification motion. D. Fees and Expenses The Committee requests that the Court award attorneys’ fees of one-third of the Total Designation Amount in each Action and expenses of approximately fifty million dollars in connection with the prosecution of the Actions. In support of its fee motion, the Committee has submitted summary time sheets demonstrating that the attorneys of the firms comprising the Committee have collectively spent 677,000 hours for a lodestar of $276 million. It also notes that it has advanced approximately forty-three million dollars in expenses. The fifty-plus other plaintiffs’ firms that were involved in this litigation have reported spending over 350,000 hours, for over one hundred million dollars in lodestar and approximately $7.5 million in expenses. The Committee also supports the payment of “reasonable” class representative awards for lead plaintiffs, proposed class representatives, and/or proposed settlement class representatives. It has submitted the declarations of over four hundred lead plaintiffs and class representatives attesting to the hours spent and hourly wages lost performing work for this litigation. The Committee requests that the Court grant an aggregate award to lead plaintiffs and class representatives not to exceed four million dollars. E. Plan of Designation and Allocation According to the Stipulation, the Settlement Amount is to be distributed to all Authorized Claimants in accordance with the Plan of Allocation, and none shall revert to defendants under any circumstances. The Stipulation further provides that the Plan of Allocation is “not a necessary term of the Stipulation” and is “not a condition of this Stipulation or the Settlement that any particular Plan of Allocation be approved.” The proposed Plan of Allocation (the “Plan”) is set forth in the Notice of Pendency. According to the Plan, the $586 million Settlement Amount and interest earned will be reduced by taxes, costs, fees, and expenses to produce a “Net Settlement Fund.” This Net Settlement Fund will then be allocated to the Actions in proportion to the amount of potentially recoverable damages in accordance with a table of amounts as set forth in Schedule 2 of the Notice of Pendency (“Net Designation Amounts”). For those cases in which the applied damage methodology resulted in a Net Designation Amount of less than $300,000 for a particular action, it is proposed that such case would be allotted a “floor” or minimum Net Designation Amount of $300,000. This floor applies only in thirty-five eases, “resulting in total additional designations (to those cases) of $3,925,139, over and above the designation amounts resulting from the damage methodology.” The highest Net Designation Amount in the 309 cases is approximately twenty million dollars. Authorized Claimants will be eligible to receive a pro rata share of the Net Settlement Fund designated for the case or cases for which they have a claim up to the amount of their recognized losses (“Recognized Claim”). Where the Net Designation Amount for a particular case exceeds the actual amount of the recognized losses of all Authorized Claimants, the excess will “flow into a pot to be combined with excess Net Designation Amounts from all other Actions ... and will be utilized to pay underfunded Recognized Claims in all Actions.” Finally, once all Recognized Claims are paid, any excess funds will be pooled and distributed to all Authorized Claimants in proportion to each Authorized Claimant’s “Unpaid Market Loss.” The Unpaid Market Loss is calculated by subtracting the Recognized Claim from the Overall Market Loss — equal to the purchase price paid (“PPP”) minus the sales proceeds received from a Subject Security (“SPR”) or the PPP minus the holding price per Subject Security (“HPS”). The HPS values are calculated using the closing price of the Subject Security as of December 6, 2000. Recognized Claims will be calculated according to the following formula: For Subject Securities purchased during the Class Period but sold prior to December 6, 2000, the Recognized Claim is the lesser of (a) the alleged inflation in the price of the security (“IPS”) at the date of purchase minus the IPS at the date of sale, multiplied by the number of securities purchased and sold, or (b) the PPP minus the SPR, multiplied by the number of securities purchased and sold. For those Subject Securities purchased during the Class Period and held as of December 6, 2000, the Recognized Claim will be calculated as the IPS on the date of purchase multiplied by the number of securities purchased during the Class Period. For those Authorized Claimants who have purchased and sold a Subject Security more than once during the Class Period, their Recognized Claim will be determined on a Last In First Out or “LIFO” basis. Finally, each Authorized Claimant is entitled to a minimum distribution amount of ten dollars no matter the size of his, her, or its Recognized Claim. F. Class Representative Approvals Plaintiffs inform the Court that in each of the 309 cases, at least one of the proposed settlement class representatives affirmatively approved the settlement. However, they also report that in five cases, the lead plaintiff disapproved of the settlement. Nevertheless, they note that none of these lead plaintiffs objected to the settlement or requested exclusion. In addition, they inform the Court that in each of these five eases, a class member who desires to serve as settlement class representative has approved the settlement. G. Notice Following this Court’s preliminary approval of the settlement, The Garden City Group (“GCG”) — Claims Administrator for these actions — mailed more than seven million copies of the Notice of Pendency to potential class members. The Summary Notice was also published in three national newspapers — The Wall Street Journal, The New York Times, and USA Today— and as a press release over the PR Newswire. Each of the seven million potential class members received a Summary “Frontispiece” that identifies the Subject Security purchased by the class member and summarizes the settlement terms, the Notice of Pendency (the “Notice”), and a Proof of Claim form and instructions for completing the form. Pursuant to the PSLRA, the Notice and attached schedules include the following information: (1) a Statement of Plaintiff Recovery, detailing the aggregate recovery and the recovery on an average per-share basis; (2) a Statement of Potential Outcome of the Case, explaining the litigation positions of both plaintiffs and defendants at the time of settlement; (3) a Statement of Attorneys’ Fees and Costs Sought and Request for PSLRA Awards Reimbursing Reasonable Time and Expense for Representative Plaintiffs, stating the intention of plaintiffs’ counsel to seek fees not to exceed one-third of the gross settlement and lead plaintiffs and class representatives awards not to exceed four million dollars and providing the fees and costs on a per-share basis; (4) contact information for members of the Plaintiffs’ Executive Committee; and (5) a Statement of the Reason for the Settlement, noting the creation of a $586 million settlement fund for class members. Pursuant to Federal Rule of Civil Procedure 23(c)(2), the Notice also provides information about the litigation, including a description of plaintiffs’ claims and the defenses put forth by defendants. It sets forth the class definition and the settlement benefits. It further provides instructions for submitting a proof of claim, requesting exclusion, and objecting to the settlement. The Notice also informs class members of their ability to hire separate counsel to represent them in this litigation. The Notice informs class members of the date of the fairness hearing, the consequences of failing to act, and how a class member can obtain more information. Finally, it includes details of the Plan of Allocation and a message to securities brokers and other nominees informing them of the Court’s Order to submit the names and last known addresses of any entity or person for which they purchased securities during the class period within twenty days of receiving the Notice. GCG maintains a website at wwwipo securitieslitigation.com (“IPO website”), which includes information regarding the litigation, explains the proposed settlement, and allows class members to submit proofs of claim. GCG also maintains a 24-hour toll-free hotline and an email address to assist class members with their questions. As of August 25, 2009, GCG had received 371 requests for exclusion and 85,848 Proofs of Claim. As of the date of the fairness hearing, GCG had received over 100,000 Proofs of Claim. Although the deadline to request exclusion has passed, class members will have until December 10, 2009 to submit Proofs of Claim. H. Fairness Hearing A fairness hearing was held on September 10, 2009. Six objectors spoke at the hearing, and they presented a wide range of concerns, including objections with respect to the class definition, the Notice, the requested attorneys’ fees and expenses, and the requested PSLRA awards. The Committee was given the opportunity to respond to all objections. III. APPLICABLE LAW A. Final Approval Unlike settlements in ordinary suits, the settlement of a class action must by approved by the court. The court owes a duty to class members to ensure that the proposed settlement is “fair, reasonable and adequate.” In making this determination, the court’s “primary concern is with the substantive terms of the settlement;” accordingly, the court must “compare the terms of the compromise with the likely rewards of litigation.” The trial judge must “ ‘apprise! ] himself of all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated.’ ” The court should not go so far as to effectively conduct a trial on the merit s, but should make “findings of fact and conclusions of law whenever the propriety of the settlement is seriously in dispute.” The court must also scrutinize the negotiating process leading up to the settlement. “A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” In determining whether a settlement is “fair, reasonable and adequate,” courts in this Circuit look to the following factors: (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 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; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation (collectively, the “Grinnell factors”). Ultimately, the approval of the proposed settlement of a class action is a matter of discretion for the trial court. Nevertheless, a court should be mindful of the “ ‘strong judicial policy in favor of settlements, particularly in the class action context.’ ” B. Plan of Allocation “ ‘To warrant approval, the plan of allocation must meet the standards by which the ... settlement was scrutinized— namely, it must be fair and adequate.’ ” “An allocation formula need only have a reasonable, rational basis, particularly if recommended by experienced and competent class counsel.” Nevertheless, “where a proposed settlement provides favorable treatment to some segment of the class, careful judicial scrutiny is required to prevent injustice and to ensure that the burden of settlement is not shifted arbitrarily to a small group of class members.” C. PSLRA Awards Section 27(a)(4) of the PSLRA states: The share of any final judgment or of any settlement that is awarded to a representative party serving on behalf of a class shall be equal, on a per share basis, to the portion of the final judgment or settlement awarded to all other members of the class. Nothing in this paragraph shall be construed to limit the award of reasonable costs and expenses (including lost wages) directly relating to the representation of the class to any representative party serving on behalf of a class. D.Attorneys’ Fees Federal Rule of Civil Procedure 23(h) provides: “In a certified class action, a court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” “‘[A] party that secured a fund for the benefit of others, in addition to himself, may recover his costs, including his attorney’s fees, from the fund itself or directly from the other parties enjoying the benefit.’ ” “This principle is known as the common fund doctrine.” “ ‘The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.’ ” Courts may award attorneys’ fees in common fund cases under either the “lodestar” method or the “percentage of the fund” method. “The lodestar method multiplies hours reasonably expended against a reasonable hourly rate. Courts in their discretion may increase the lodestar by applying a multiplier based on factors such as the riskiness of the litigation and the quality of the attorneys.” “The trend in this Circuit is toward the percentage method, [ ] which directly aligns the interests of the class and its counsel and provides a powerful incentive for the efficient prosecution and early resolution of litigation.... In contrast, the lodestar creates an unanticipated disincentive to early settlements, tempts lawyers to run up their hours, and compels district courts to engage in a gimlet-eyed review of line-item fee audits.” Nevertheless, “the lodestar remains useful as a baseline even if the percentage method is eventually chosen.” “Irrespective of which method is used, the ‘Goldberger factors’ ultimately determine the reasonableness of a common fund fee. They include: (1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation ...; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations.” Finally, “[r]ecognizing that economies of scale could cause windfalls in common fund cases, courts have traditionally awarded fees for common fund cases in the lower range of what is reasonable.” IV. DISCUSSION A. Final Approval 1. Settlement Discussions The Court requested and the parties provided affidavits from retired Judges Nicholas Politan and Daniel Weinstein, the two mediators that assisted the parties to come to the terms of the instant settlement. Judges Politan and Weinstein have both attested that the settlement “was fully negotiated, was the best that the settlement classes could obtain, and is fair, adequate and reasonable to the members of the classes.” They inform the Court that negotiations spanned nine months, included seven full mediation sessions, and countless phone conferences and other meetings with individual parties. In addition, they confirm that the terms were the product of arms’ length bargaining. They note specifically that “[c]ounsel on all sides were well-prepared, extremely knowledgeable about the facts and the law, and advocated vigorously for their client.” Thus, a presumption of fairness, adequacy, and reasonableness attaches to this settlement. 2. The Grinnell Factors Courts in this Circuit look to the nine Grinnell factors to determine whether a settlement is “fair, reasonable and adequate” in accordance with Rule 23(e). Although I have already evaluated eight of the nine factors in the June Opinion and Order, I nevertheless consider each of the factors or group of factors again, a. The Complexity, Expense and Likely Duration of the Litigation It has been eight years since thousands of investors brought the class action lawsuits that are the subject of this consolidated action. These actions alleged that fifty-five underwriters, more than three hundred issuers, and hundreds of individuals associated with these issuers defrauded the public. On August 9, 2001, the Chief Judge of the United States District Court for the Southern District of New York entered an Order transferring each of these cases to this Court’s docket for pretrial coordination. In an Order dated August 12, 2003, a similar action in Florida was transferred to this Court for pre-trial supervision. Ultimately, all of these cases would have been re-assigned to judges in this district had the actions gone to trial. In addition, plaintiffs note that “a vast amount of additional factual and expert discovery remains to prepare for trials, and motions would be filed raising every possible kind of pre-trial, trial and post-trial issue conceivable.” This Court has already issued twenty-nine Opinions in this case. The Court of Appeals has issued three. No one disputes that adjudication of these actions would have been a daunting task, and the expense and effort involved would certainly have been burdensome to the parties and the Court. This factor therefore weighs heavily in favor of final approval, b. Stage of Proceedings and Amount of Discovery Completed This factor is aimed at ensuring that the parties have a “thorough understanding of their case” prior to settlement. Litigation in this case has been ongoing for eight years. The Court has decided multiple motions to dismiss, considered numerous motions for class certification, and the parties have submitted more than a dozen expert reports, taken more than a hundred depositions, and reviewed tens of millions of pages in discovery. In addition, plaintiffs have informed the Court that they are “proposing this settlement with eyes open.” I find that this factor weighs in favor of final approval, c. Risks of Class Prevailing (Establishing Liability, Damages, and Maintaining the Class Through Trial) Plaintiffs concede that “establishing liability is, at best, uncertain.” They contend that defendants have denied any wrongdoing in the case, arguing that the tie-in agreements were really “underwriters gauging ‘indications of interest’ as part of the IPO price discovery process.” Plaintiffs admit that it is possible that a jury might find defendants’ version of events to be more compelling, reducing their recovery to nothing. Plaintiffs also acknowledge that if history is any indication, their chances of success at trial is — at best — fifty percent. Even more complicated is the issue of loss causation and damages. Plaintiffs’ expert, Daniel R. Fischel, has proposed a method of proving that the alleged scheme inflated stock prices as early as the beginning of trading and that this inflation dissipated throughout the class period. Defendants have challenged this proposed methodology during previous motions for class certification, submitting reports from a number of other experts in the field. There is a likelihood that defendants’ theories might be credited by the jury, thereby limiting the amount of recovery plaintiffs would receive. Finally, the maintenance of class certification in these cases through trial is fraught with risks. Plaintiffs inform the Court that defendants have compromised on several issues that defendants had previously argued would make these class actions unmanageable if they went to trial. In addition, decertification is always a likely possibility during trial in complex class actions such as these. These factors therefore weigh in favor of final approval, d. Ability of Defendants to Withstand a Greater Judgment Although plaintiffs previously argued- — ■ and this Court agreed — that the economic climate and the insolvency of many of the defendants made it imperative “ ‘to take the bird in hand instead of a prospective flock in the bush,’ ” they now retreat from this argument. In its final approval motion, plaintiffs state that they “do not contend that defendants could not collectively withstand a greater judgment.” Indeed, the economy shows signs of recovery, and a number of the underwriter defendants no longer appear to be faltering. While “ ‘[t]he fact that a defendant is able to pay more than it offers in settlement does not, standing alone, indicate the settlement is unreasonable or inadequate,’ ” this factor weighs against final approval. e. Range of Reasonableness of Settlement Fund in Light of Best Possible Recovery and Attendant Risks of Litigation The Second Circuit has held that a settlement that is within a range “ ‘that recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion,’ ” will not be reversed on appeal. The Settlement Amount has been one of the most scrutinized parts of the Stipulation. The $586 million settlement represents two percent of the aggregate expected recovery in the 309 actions and is less than the one billion dollar guarantee provided by the Issuer defendants that the Court previously preliminarily approved in 2005. However, a few points are worth noting. First, and most importantly, it cannot be disputed that the Second Circuit’s decision in Miles I changed the negotiating positions of plaintiffs and defendants dramatically. Although the Circuit subsequently revived the litigation in Miles II — opining that nothing in Miles I bars plaintiffs from returning to this Court with a more modest class definition — its ruling in Miles I effectively prevented institutional investors who were initial allocants in the IPOs from participating in any class. The exclusion of these institutional investors is largely the reason why the expected recovery in this litigation has decreased from fifty-five billion dollars to thirty-two billion dollars. Plaintiffs cannot expect to receive the same aggregate recovery after Miles I. Second, although a number of objectors noted that the settlement was minuscule compared to the expected recovery in the case, the Second Circuit has held that a settlement amount of even a fraction of the potential recovery does not render a proposed settlement inadequate. And while the proposed settlement is being compared — -justifiably or not — to the expected recovery amount as calculated by plaintiffs’ damages expert, plaintiffs note that the expected recovery is based largely on assumptions, “any of which, if wrong, could doom any recovery at all or certainly drastically reduce any recovery even if successful at trial.” Finally, although the billion dollar guarantee provided by the Issuer defendants in 2005 was larger than the current proposed settlement, it was negotiated prior to the Second Circuit’s decision in Miles I. As noted above, the class size was restricted and the expected recovery severely limited following that decision. It is therefore inappropriate to compare the proposed settlement to the 2005 settlement. Nevertheless, as I noted in my June Opinion and Order, the 2005 settlement is distinguishable because it was merely a guarantee. None of the proceeds were to be distributed to putative class members until “after the conclusion of all of the above-mentioned proceedings with respect to the Underwriters.” In addition, the guarantee required plaintiffs to continue to litigate their claims against the Underwriters. Forcing plaintiffs to litigate the matter until verdict (and potentially through an appeal) would have been not only costly but uncertain. In the end, plaintiffs could have lost against the underwriters after expending significant additional costs. And while the Settlement Amount is less than the billion dollar guarantee in absolute terms, the class definition has been significantly narrowed. All institutional investors who received IPO allocations from the “institutional pots” are now excluded from recovery, thereby severely limiting the number of potential claimants. Plaintiffs estimate that “there are roughly 7,000 unique entities (other than natural persons) that received allocations from the institutional pot list” and that they and their employees and defendants’ employees are now excluded from the settlement class. As a result, although the “pie” is smaller, each Authorized Claimant should receive a larger slice. I therefore find that the settlement is reasonable in light of the expected recovery and attendant risks. f. Reaction of the Class to Settlement The final Grinnell factor that I must consider is the reaction of the class to the settlement. “ ‘If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.’ ” The Second Circuit has also previously provided guidance as to what percentage of the class must object before a settlement would be rendered unfair, indicating that an otherwise fair settlement should not be deemed unfair because of opposition by thirty-six percent of the total class. As noted, over seven million notices were sent to potential class members, and the Committee informed the Court at the Fairness Hearing that GCG has received over 100,000 Proofs of Claim as of that date. GCG reports that as of August 25, 2009, it has received 371 requests for exclusion. As of the date of this Opinion, the Court has received objections from approximately 140 class members — less than a hundredth of one percent. Nevertheless, because many of the objectors have raised valid concerns, I will discuss and respond to each of them. i. Notice Was Inadequate Some class members opined that the Notice was inadequate and incomplete. For instance, Douglas Parker contends that the Notice fails to: (1) give details of the 2005 proposed settlement so that class members can compare that settlement with the current settlement; (2) set forth the aggregate amount of estimated damages or the contributions of the underwriters to the settlement; (3) provide evidence that the defendants are unable to withstand a greater settlement; (4) disclose the reasons why five of the lead plaintiffs declined to approve the settlement; and (5) disclose any information substantiating plaintiffs’ counsel’s request for fees and expenses. At the fairness hearing, a number of objectors opined that the Notice was inadequate because it failed to provide information substantiating the Committee’s request for PSLRA lead plaintiff and class representative awards not to exceed an aggregate of four million dollars. Objectors argued that class members need to know how much is being awarded to these class representatives before they decide whether to participate in the settlement. As an initial matter, neither the PSLRA nor Rule 23 requires greater disclosure than the contents of the Notice of Pendency that was disseminated in these actions. And although the PSLRA provides that a court may direct notice of additional information to class members, I noted at the fairness hearing that providing too much information may also pose significant problems — doing so may confuse class members and make it impossible for them to locate the information in which they are most interested. Nevertheless, I will discuss each of the above objections in turn. The 2005 Settlement Although I predicted that class members might compare the current settlement to the 2005 settlement and therefore distinguished the two settlements in my June Opinion and Order and again in this Opinion, that settlement should not be a relevant factor in a class member’s consideration of the current offer. The 2005 settlement was offered by the Issuer defendants prior to the Second Circuit’s decisions in Miles I and Miles II and was derailed by those opinions. In any case, the settlements are easily distinguishable because the 2005 settlement was not only based on a larger expected recovery, but provided only a guarantee of recovery some time in the future. Aggregate Amount of Estimated Damages Although the Notice does not include the aggregate amount of estimated damages for all 309 actions, it includes the estimated recovery for each of the actions, which is all that is required under the PSLRA. A class member need only add all of the individual damages figures to obtain an aggregate figure. And while the Notice did not specify how much of the settlement is being paid by the underwriters as opposed to the issuers, the Court has since directed plaintiffs’ counsel to disclose on the IPO website the fact that the bulk of the settlement is being paid by the underwriters and “a portion is being paid by the insurance companies for the Issuers.” The Court can now disclose that although the Underwriter defendants (and/or their insurers) and the insurers of the Issuer defendants participated in the settlement, no portion of the settlement is being paid by the Issuer defendants themselves. Plaintiffs’ counsel note that they have not been able to identify one case in which notice was deemed inadequate because of a lack of disclosure of the contributions of each defendant to the settlement, and objectors have cited to none. Evidence of Defendants’ Ability to Withstand Greater Judgment As noted, whether the defendants can withstand a greater judgment is one of the Grinnell factors a court must consider when determining whether to approve a proposed settlement. However, this factor should not be over-emphasized. Just because a defendant is capable of making a larger payment does not mean that the settlement is inadequate. What is required is only a determination that the settlement is fair, reasonable, and adequate. Nevertheless, the Court has already held that this factor weighs against approval of the proposed settlement. Reasons that Five of the Lead Plaintiffs Did Not Approve the Settlement Although the refusal of five lead plaintiffs to approve the settlement may appear troubling, the substitution of unnamed class members for named plaintiffs who fall out of a case because of settlement “is a common and normally an unexceptionable [] feature of class action litigation....” And the Committee has informed the Court that those reasons cannot be disclosed without a waiver of the attorney-client privilege with respect to communications between plaintiffs’ counsel and those five lead plaintiffs. The Committee also notes that none of these five lead plaintiffs have opted out of the class, nor have any of them objected to the settlement. Substantiation of Request for Attorneys’ Fees and Expenses Pursuant to Court order, the Committee posted a short summary of the work it has performed on this litigation on the IPO website. Class members were therefore able to evaluate the request for fees in light of the work performed in the litigation prior to the deadline for submission of objections. In addition, the request for attorneys’ fees and expenses has since been filed with the Court and posted on the IPO website, pursuant to Court order. An additional period of time has been extended to class members to object to plaintiffs’ counsel’s application. The Court has carefully considered these objections and the application in determining the proper and fair amount to award to plaintiffs’ counsel. Substantiation of Request for PSLRA Awards Some objectors opined at the fairness hearing that class members could not consider the proposed settlement without information regarding each individual lead plaintiffs or class representative’s request for PSLRA awards. As noted at the fairness hearing, however, I am not aware of any settlement in which a court has ruled on fee applications prior to providing notice to the class. Moreover, the Notice included plaintiffs’ counsel’s request of awards to lead plaintiffs and class representatives not to exceed four million dollars. For purposes of deciding whether to participate in the settlement, the amount that individual lead plaintiffs or class representatives are requesting is irrelevant. Furthermore, as with the attorneys’ fees, each award request has since been posted on the IPO website for review by class members. Any argument that failing to give notice of such information by mail is in contravention of the PSLRA is erroneous. The Notice provides the information required by the PSLRA, including the maximum amount of the award request and the PSLRA Statement of Fees, Expenses and PSLRA Award Requests per damaged share. ii. Required Documentation Is Too Burdensome A number of objectors noted that the documentation required to substantiate their claims is unreasonably burdensome considering the small recovery they will receive and the lapse of time since their investments. Some objectors question how plaintiffs’ counsel and GCG have been able to locate enough information to identify potential class members but nonetheless cannot find the other information needed to substantiate class members’ claims. Plaintiffs’ counsel respond that a “vast majority” of class members were notified during the 2005 settlement that they should retain documentation to support their claims. A requirement that potential class members provide documentation is not unusual in securities litigations. This measure is implemented for the purpose of reducing the number of fraudulent claims. Nevertheless, any documentation requirements must be reasonable in light of the time that has passed since many of these securities were traded. The Court had therefore ordered plaintiffs’ counsel and GCG to post a notice on the IPO website, notifying potential class members that they should submit all proofs of claim no matter the lack of appropriate documentation. Thus, all potential class members who wish to participate in this settlement but who cannot locate appropriate documentation are nonetheless encouraged to submit their claims documents — GCG and plaintiffs’ counsel are directed to attempt, in good faith, to determine each claim’s eligibility for participation. iii. Claims Lack Merit A few objectors contend surprisingly that the claims in this action have no merit. For instance, one class member opined that “[t]he lawsuit [is] frivolous. The only sin committed by the 309 companies was that they conducted their IPO[s] just before the bubble burst and the stock market crashed.” Two other objectors state, “[w]e believe the claims are without merit and therefore we beg the court to rule against the plaintiffs.” Yet another objector contends “[w]ere this case to go to trial, it seems readily apparent that, while expensive, the defense would win and the plaintiffs and their attorneys and representatives would receive absolutely nothing.” Finally, one objector believes that “the case is based too much on plausibility and based insufficiently in reality. The court documents I reviewed indicate that nothing has been proved.” Because the parties agreed to settle this litigation in the midst of discovery, the Court has not made any rulings regarding the merits of the actions. Nonetheless, this objection makes no sense — particularly in light of the fact that the Issuer defendants are not contributing to this settlement. That plaintiffs’ counsel were able to negotiate a settlement with defendants over allegedly weak claims indicates that plaintiffs’ counsel have represented their clients well. iv. The Objections of Theodore Bechtold On behalf of thirty-nine objectors, attorney Theodore Bechtold filed a number of letters voicing objections to the proposed settlement. Some of the objections have been addressed above, such as the inadequacy of the settlement amount and the inadequacy of the Notice. Bechtold argues additionally, however, that (1) the same person cannot serve as lead plaintiff in more than one action, and (2) that this Court’s “participation in some related IPOs” exacerbates the concerns about possible conflicts of interest. Both of these contentions have been adequately addressed by the Court in previous opinions and rulings. For instance, in 2002, this Court held that it was appropriate for the same person to serve as a lead plaintiff in multiple IPO cases. Moreover, I agree with plaintiffs’ counsel’s argument that such challenge has surely been waived when none of Bechtold’s clients have ever questioned the appointment of any of the lead plaintiffs until now or moved to be appointed lead plaintiff or class representative. Bechtold’s second objection was also addressed in one of my previous decisions. I held there that I had nothing more than a “ ‘remote, contingent, or speculative’ ” interest in the litigation and therefore dismissed any claim that there was a conflict of interest. Bechtold also submitted a letter that criticizes the appointment as lead plaintiff in several eases in this litigation of Saul Kassin, who Bechtold claims is the same Saul Kassin that was arrested recently on federal money laundering charges. Bechtold argues that Saul Kassin’s involvement in this case “taints [the] involvement of [all of the Kassins] in the IPO Securities Litigation....” The Committee has confirmed that the Saul Kassin that is serving as lead plaintiff in several cases is not the same man as the Saul Kassin that was arrested. Bechtold’s arguments are therefore rejected. v. Conclusion Having carefully considered and addressed the objections to the proposed settlement, I conclude that the Grinnell factors weigh — on balance — in favor of approving the proposed settlement. I therefore find that the proposed settlement is fair, reasonable, and adequate, and the settlement is hereby approved. B. Class Certification In addition to challenging the fairness of the settlement, some of the objectors also criticized the Court’s certification of the settlement classes in these actions. I will address each of these issues in turn. 1. Class Definition JKM Company contends that the class definition incorrectly includes investors “who were damaged.” JKM Company suggests that the class certification should include only those individuals who purchased shares of the Subject Securities during the class period regardless of whether they were damaged. It argues that inclusion of such a phrase in the class definition “(1) does not provide a precise, objective and presently ascertainable way to identify class members, (2) requires a ‘mini trial’ to determine whether a particular person is in the class, and (3) requires the Court to address the central issue of liability (whether a person has suffered damages).” This argument has no merit. Class definitions are important because (1) they identify the individuals who are precluded from bringing suit in the future, in accordance with the Stipulation’s bar provision, and (2) they identify the individuals who may recover pursuant to the Plan of Allocation. First, an investor who was not damaged by defendants’ alleged misconduct would not otherwise be able to bring a claim based on the same misconduct in a subsequent action. It is therefore of little consequence that the class definition contains the “and were damaged thereby” phrase. For purposes of determining who can bring suit in the future, that phrase is simply superfluous because an investor who is not damaged would not have a viable claim. Second, at the fairness hearing, JKM Company argued further that it could not ascertain easily whether it was a member of the class because the phrase “and were damaged thereby” was not defined. But an investor incurs damages on his, her, or its purchase by losing money. A quick look at trading records would show whether JKM Company had lost money on its investments. Thus, the cases to which JKM Company cites are inapposite. Chiang v. Veneman and Williams v. Glickman are discrimination cases. In these cases, the Third Circuit and a district court in the District of Columbia rejected class definitions that required a determination as to whether potential class members suffered discrimination. Similarly, in Kenro, Inc. v. Fax Daily, Inc., the district court refused to certify a class defined as “all persons or entities who have received ... a publication from Fax Daily, Inc---without the prior expressed invitation or permission of such person or entity.” In each of these cases, class membership hinged on the courts’ ability to determine whether an individual was discriminated against or whether he or she had invited the advertisements, necessitating individual mini-trials. This is not the case here. Moreover, the Plan of Allocation defines how damages will be determined. Those who believe they have been damaged will submit their proofs of claim, and each claim will be evaluated based upon an objective formula pursuant to the Plan of Allocation. Thus, to the extent that JKM Company is questioning how a determination will be made regarding who has been damaged, its objection is properly directed to the Plan of Allocation, which I discuss later in this Opinion. Finally, while this particular issue has never been addressed by the Second Circuit, the Fifth Circuit has affirmed a class definition with the phrase “and were damaged thereby” and similar classes have been certified by other courts in this district. JKM Company’s objection is therefore unfounded. 2. Class Period Objector James J. Hayes contends that the class period is too long because any alleged inflation would have dissipated after the first quarterly earnings statement was issued by each issuer, apprising potential class members of the actual value of their investments and uncovering possible manipulation. However, whether the first earnings report of any of the issuers would have informed shareholders and potential investors about the true value of their investment is an issue common to all class members. Class certification requires only that the Court assess whether each element of plaintiffs’ claim can be resolved class-wide. The question of whether plaintiffs could succeed in showing that the alleged inflation persisted for the entire class period is properly addressed after class certification. 3. Adequacy of Representation Hayes also claims that the Court failed to find by a preponderance of the evidence the adequacy of the representation with respect to plaintiffs’ counsel. In the June Opinion and Order, I appointed class counsel pursuant to Rule 23(g), noted that several of the findings that I made in 2004 regarding class certification would not change even when evaluated against the preponderance of the evidence standard, and found that plaintiffs had satisfied the adequacy of representation requirement with respect to class representatives. I will now address the adequacy of representation with respect to plaintiffs’ counsel. In order to conclude that the adequacy of representation requirement has been satisfied, courts must determine that “plaintiffs attorneys are qualified, experienced and able to conduct the litigation.” Each of the firms that comprise the Committee has tremendous experience in complex securities litigation. They have secured multi-million dollar settlements in a number of class actions, have won awards for their advocacy, and been praised by judges in other litigation. They have expended enormous resources to litigate these actions and negotiate this settlement, as is clear from the documentation they have submitted in support of their fee and expense request. They are knowledgeable about the issues and have vigorously represented the interests of class members. Hayes notes that counsel are inadequate because the recovery they negotiated was small compared to the expected damages, but that is properly an objection to plaintiffs’ counsel’s fees, rather than to the adequacy of their representation. I therefore hold that the adequacy of representation requirement has been met. 4. Knowledge Leslie Baum, Mike Hart, and Sue Shadley, through counsel, filed a joint letter contending that the new settlement class definition does not resolve the question of knowledge. They note that although the settlement classes have been narrowed to exclude those institutional investors who received allocations in the IPOs, they do not exclude natural persons who were identified as recipients of an allocation of shares from the “institutional pot.” However, the Second Circuit in Miles I was largely concerned with the knowledge of institutional investors who were initial allocants and their employees. Also, the Amended Master Allegations state that “the overwhelming majority of retail allocants, who generally receive relatively small allocations, also traded in ignorance of the scheme, as the Underwriter Defendants focused their requirements on certain investors, who generally receive relatively large allocations.” Additionally, this Court has held that plaintiffs are entitled to a presumption of reliance. While some natural persons who received initial allocations may have possessed knowledge of the scheme, objectors have not produced evidence to show that the number of such investors was more than a very small percentage of retail investors. Thus, the presumption remains unrebutted. Finally, in Miles I, the Second Circuit noted in particular plaintiffs’ identification of more than eleven thousand institutions and individuals that were allegedly induced into improper trading arrangements by defendants, ruling that this statistic called into doubt the vitality of the presumption of reliance. Plaintiffs have determined that seven thousand “unique entities (other than natural persons) [] received allocations from an institutional pot list.” That means that only four thousand retail allocants may have been aware of the scheme. When these investors are compared to the more than one hundred thousand class members who have submitted proofs of claim thus far, it is clear that common issues will predominate over individual issues. The exclusion of institutional investors who were initial allocants from the classes therefore resolves the predominance problem. 5. Reliance Baum, Hart, and Shadley also challenge the application of the Affiliated Ute presumption to cases involving price manipulation. They cite to the Ninth Circuit case of Desai v. Deutsche Bank Securities, Ltd. for the proposition that the presumption is only applicable to cases that “ ‘can be characterized as ... primarily alleging] omissions’ ” and that “ ‘manipulative conduct has always been distinct from actionable omissions.’ ” Because the Court held in its June Opinion and Order that plaintiffs had failed to show by a preponderance of the evidence that the markets for shares were efficient during the quiet period for each stock and therefore that plaintiffs are not entitled to rely on the Basic presumption, Baum, Hart, and Shadley argue that the class should exclude all investors who purchased during the quiet periods. However, Affiliated Ute itself was a case based on manipulative conduct. Affiliated Ute involved the partition of the assets of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah. According to the articles of the Ute Distribution Corporation (“UDC”) — -the corporation that was established for the purpose of managing the assets — any mixed-blood shareholder wishing to sell his shares in the UDC was required to offer a right of first refusal to other full-blood and mixed-blood members of the tribe prior to making the same offer to a non-member. In violation of the UDC articles, two non-Indian men — employees of the bank that was the transfer agent of these shares — concocted a scheme whereby they solicited and purchased UDC shares from mixed-blood Indians for themselves or for other non-Indian purchasers and made a profit doing so. The Supreme Court concluded that “defendants had devised a plan and induced the mixed-blood holders of UDC stock to dispose of their shares without disclosing to them material facts that reasonably could have been expected to influence their decisions to sell” such as that they were profiting from their purchases of shares. The Court thus held that in this situation, involving “primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery.” Similarly, here, plaintiffs allege that defendants engaged in a scheme to induce the purchase of IPO shares at inflated prices and for undisclosed compensation and also sustained the price inflation by publishing misleading analyst reports. They further allege that defendants failed to disclose the nature of the scheme and the underwriter and analyst compensation in the prospectuses that were sent to investors. The Supreme Court specifically contemplated that Affiliated Ute would apply in this situation. And the Second Circuit has given no indication that the Affiliated Ute presumption should not apply in this case. This argument is therefore rejected. 6. Conclusory Objections Finally, a number of objectors argue conclusorily that the settlement classes should not be certified because the revised class definition does not adequately resolve issues of reliance, causation, and ascertain-ability. In my June Opinion and Order, I discussed in detail plaintiffs’ burden in meeting these requirements. I found that plaintiffs had demonstrated by a preponderance of the evidence that reliance and loss causation could be proven on a class-wide basis and determined that the settlement classes were ascertainable. Nothing in these objections persuade me of the need to revisit the conclusions in my June Opinion and Order. I am therefore fully satisfied that plaintiffs have demonstrated by a preponderance of the evidence that the class certification requirements have been met. C. Plan of Allocation A Plan of Allocation has been recommended by plaintiffs’ counsel, a group of competent and qualified counsel. As such, I need only review the plan to confirm that it has a reasonable, rational basis. After a thorough review of the plan, I conclude that it is fair and reasonable. Because defendants would only agree to a global settlement of all of the actions, the parties propose a minimum designation from the Settlement Fund of $300,000 per case in this settlement. Plaintiffs’ counsel assert that the purpose of this “floor” is to allow class members from each of the actions to participate meaningfully in the proposed settlement