Lane v. Page (862 F. Supp. 2d 1182, 2012)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Lead Plaintiffs Notice of Motion and Motion for Final Approval of Class Action Settlement, filed January 27, 2012 (Doc. 370)(“Motion for Approval of Class Settlement”); (ii) Miller Barondess, LLP’s Objection to Use of Settlement Funds in Court Registry for Settlement, filed February 14, 2012 (Doc. 380)(“Baron-dess Objection”); (in) Stephens Property Co. LLC’s Objection to Use of Funds in Court Registry for Settlement, filed February 17, 2012 (Doc. 383)(“Stephens Objection”); (iv) Interlegis, Inc.’s Motion to Extend the Deadline to File Objections to the January 9, 2012 Notice of Use Funds in Court Registry for Settlement (Document 367), filed March 1, 2012 (Doc. 395)(“Inter-legis Motion”); (v) Interlegis, Inc.’s Objection to the January 9, 2012 Notice of Use of Funds in Court Registry for Settlement (Doc. 367), filed March 1, 2012 (Doc. 396)(“Interlegis Objection”); (vi) Diana Armijo’s Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 384) (“D. Armijo Objection”); (vii) Barbara Armijo’s Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 385) (“B. Armijo Objection”); (viii) Joshua Moralez’ Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 386) (“J. Moralez Objection”); (ix) Patricia Baros’ Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 387) (“Baros Objection”); (x) Lori Moralez’ Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 388)(“Lori Moralez Objection”); (xi) the Agnes B. Sanchez Revocable Trust UTA, Peter A. Sanchez, Trustee, Objection, filed February 17, 2012 (Doc. 389)(“Sanchez Trust Objection”); (xii) Larry Moralez’ Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 390)(“Larry Moralez Objection”); (xiii) Anita Lucero’s Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 391)(“Lucero Objection”); (xiv) Angela Otero’s Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 392)(“Otero Objection”); (xv) Chris Lujan’s Objection to Proposed Class Settlement, filed February 17, 2012 (Doc. 393)(“Lujan Objection”); and (xvi) Requests for Exclusion from Settlement filed March 15, 2012 (Doc. 409)(“Exelusion Requests”). The Court held a hearing on March 20, 2012. The primary issues are: (i) whether the parties’ settlement of this case is fair, reasonable, and adequate; (ii) whether the Court should approve the parties’ agreement regarding attorney’s fees and expenses; (iii) whether the Court should authorize a payment of $4,725 to Lane; and (iv) whether the Court should use some portion of the settlement funds to pay Miller Barondess, LLP, Stephens Property Co. LLC, or Interlegis, Inc. the money they allege they are owed. The Court will grant the Interlegis Motion and will consider the Interlegis Objection as timely filed. The Court will overrule the Barondess Objection, the Stephens Objection, and the Interlegis Objection. The Court will also overrule all of the individual objections and will grant the Motion for Approval of Class Settlement. The Court finds that the settlement is fair, adequate, and reasonable, and will approve the Stipulation of Settlement, filed December 19, 2011 (Doc. 363). The Court also finds that the attorney’s fees and expenses, and the award to Lane are reasonable. Accordingly, the Court approves the settlement of: (i) $3,793,509.25 to the class; (ii) $3,100,000.00 in attorney’s fees and $650,000.00 in expenses; and (iii) $4,725.00 in reasonable costs and expenses to Lane, to be obtained from the attorney’s fees award.

FACTUAL BACKGROUND

Lane brings this shareholder class action on behalf of himself and the holders of common stock of Defendant Westland Development Company, Inc., against West-land Development, certain of its senior officers and directors, its merger partner, Defendant SunCal Companies Group and its affiliates, and the DESCO Defendants, who Lane contends were involved in planning, executing, and consummating the SunCal Merger. See Third Amended Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9 ¶ 1, at 2, filed June 17, 2010 (Doc. 206)(“TAC”). Lane alleges that, on or about September 20, 2006, the Defendants mailed to Westland Development shareholders a Proxy Statement that misrepresented and/or omitted material facts, and that this Proxy Statement was used to obtain shareholder approval of the sale of Westland Development to the SunCal Companies Group. See TAC ¶¶ 1, 3, at 2; SEC Schedule 14A Definitive Proxy Statement for Westland Development Co., Inc. at 6 (issued September 20, 2006), filed June 17, 2010 (Doc. 206-l)(“Proxy Statement”).

1. Westland Development.

In 1692, when the area around Albuquerque, New Mexico was part of the Spanish empire, King Charles II of Spain conveyed more than 55,000 acres of land to a few of his loyal subjects. See TAC ¶¶ 2, 6, at 2, 5 (quoting Peter C. Beller, Insider Deal on the Mesa, Forbes, Sept. 3, 2007); Director Defendants’, Westland’s, and Suncal’s Joint Opposition to Plaintiffs Motion for Class Certification at 4, filed February 4, 2009 (Doc. 141)(“Opposition to Class Certification”). This land, known as the Atrisco Land Grant, was originally part of the town of Atrisco, and now lies in and around western Albuquerque. See TAC ¶¶ 2, 6, at 2, 5 (citation omitted); Opposition to Class Certification at 3. The Atrisco Land Grant is an eighty-six-square-mile parcel of real estate, which includes tens of thousands of acres of undeveloped property, master planned communities, retail properties, water rights, and untapped oil and gas rights in and around Albuquerque. See TAC ¶¶ 2, 6, at 2, 5 (citation omitted).

The heirs of the original grantees formed Westland Development in 1967, transferring their interests in the land to the corporation. See TAC ¶ 2, 6, at 2, 6 (citation omitted); Opposition to Class Certification at 4. The heirs became the shareholders of the new corporation, receiving tradable stock proportional to their ancestors’ land holdings. See TAC ¶ 6, at 6. For most of Westland Development’s existence, its articles of incorporation prohibited the transfer of Westland Development stock to anyone other than an heir to the Atrisco Land Grant, and Westland Development stock was not publicly traded. See Opposition to Class Certification at 4; Proxy Statement at 6.

Westland Development owned about 46,-400 acres of land from the Atrisco Land Grant, including the mineral, oil, and gas rights. See Proxy Statement at 6. West-land Development also owned another 10,-000 acres of land located north of the original Atrisco land grant, but did not own the mineral rights to that land. See Proxy Statement at 6. Westland Development was in 'the business of selling and developing portions of the land it held, and it also leased retail property to businesses in Albuquerque and in El Paso, Texas. See Proxy Statement at 6.

2. Prior Merger Offers.

Various parties approached Westland Development about acquiring either West-land Development or a significant portion of its assets. See Proxy Statement at 16. None of the inquiries ever materialized into a viable proposal, but Westland Development’s Board of Directors engaged an independent company to value Westland Development’s stock in 2001 and again in February of 2005. See TAC ¶ 47, at 27; Proxy Statement at 16. The first valuation determined that Westland was worth about $70 million, or approximately $87.00' per share, while the second valuation four years later produced a figure of approximately $180.00 per share. See TAC ¶ 47, at 27; Proxy Statement at 16. According to Lane, the first valuation reached a figure of $70 million only after Defendant Barbara Page, Westland’s president, chief executive officer, and chief financial officer, contacted the valuation company and ordered that the valuation be reduced. See TAC at ¶ 48, at 28.

Sometime in early June or late July of 2005, Page met with Philip Aries, the head of Tucson, Arizona, based Aries Realty. See TAC ¶ 6, at 7 (citations omitted); Proxy Statement at 17. Aries Realty was a representative of a group of investors interested in acquiring Westland Development. See TAC ¶ 6, at 7 (citations omitted); Proxy Statement at 17. The investment group and Westland Development embarked on a series of negotiations that ultimately resulted in terms that Westland Development’s Board of Directors approved on August 17, 2005. See TAC ¶ 6, at 7 (citations omitted); Opposition to Class Certification at 3; Proxy Statement at 18. The terms provided for the acquisition of Westland Development by way of merger into a newly formed company named ANM Holdings, Inc., with Westland Development shareholders being cashed out for $200.00 per share. See TAC ¶ 6, at 7 (citations omitted); Opposition to Class Certification at 3; Proxy Statement at 18. The terms also permitted Westland Development to consider other offers in a post-signing market-check — a so-called fiduciary out. See Opposition to Class Certification at 3; Proxy Statement at 18. On September 19, 2005, Westland Development’s Board of Directors approved the merger agreement. See Proxy Statement at 19.

Westland Development proceeded to consider a series of unsolicited offers that it received in the wake of publicity about the merger discussions, and of its filing with the Securities and Exchange Commission (“SEC”) in connection with the proposed merger. See TAC ¶ 6, at 8-9; Opposition to Class Certification at 4; Proxy Statement at 19. Westland Development determined that two of the offers it received, from Sedora Holdings, LLC and Atrisco Heritage, were genuine “acquisition proposals” under the merger agreement with ANM Holdings, which Westland Development could consider under the fiduciary out. See TAC ¶ 48(b), at 29; Proxy Statement at 21. Westland Development entered into negotiations with the companies making the offers and ultimately concluded that Sedora Holdings’ offer of $255.00 per share was superior to either ANM Holdings’ or Atrisco Heritage’s offers. See Opposition to Class Certification at 4; Proxy Statement at 22. Westland Development exercised its rights under the fiduciary out, and ANM Holdings decided not to counter Sedora Holdings’ offer. See Opposition to Class Certification at 4; Proxy Statement at 22. Westland canceled its merger agreement with ANM Holdings and entered into a merger agreement with Sedora Holdings. See Opposition to Class Certification at 4; Proxy Statement at 22. The new merger agreement with Sedora Holdings, like the one with ANM Holdings, had a fiduciary out clause. See Opposition to Class Certification at 4; Proxy Statement at 22.

3. The Merger with SunCal Companies Group.

On May 23, 2006, the SunCal Companies Group entered the picture and made a proposal to acquire Westland Development for $280.00 per share. See Proxy Statement at 23. On May 31, 2006, Westland Development’s Board of Directors determined that the SunCal Companies Group’s offer was superior to Sedora Holdings’ offer, and gave Sedora Holdings until June 5, 2006 to revise its offer. See Proxy Statement at 23. After Westland Development’s determination that the SunCal Companies Group’s offer was superior, Westland Development continued to receive additional offers, and Sedora Holdings also amended its offer in an effort to regain its status as the preferred buyer. See Proxy Statement at 24. Bidding continued, and the SunCal Companies Group increased its offer twice, ultimately arriving at a figure of $315.00 per share, an amount with which Sedora Holdings declined to compete. See TAC ¶ 37, at 19; Opposition to Class Certification at 4; Proxy Statement at 24. Westland Development and the SunCal Companies Group formally entered into a merger agreement on July 19, 2006. See TAC ¶37, at 19; Opposition to Class Certification at 4; Proxy Statement at 25.

Under the terms of the merger agreement, each of the 794,927 issued and outstanding shares of Westland Development common stock would be converted into the right to receive $315.00 in cash, with an acquisition company created by the SunCal Companies Group becoming the owner of all of Westland Development’s outstanding stock. See TAC ¶ 37, at 19; Opposition to Class Certification at 4; Proxy Statement at 26. Additionally, the merger agreement entitled Westland Development’s shareholders to receive an ownership interest in a newly formed company called Atrisco Oil and Gas LLC (“Atrisco LLC”), which would be a vehicle for providing income from Westland Development’s mineral rights to Westland Development’s shareholders. See Opposition to Class Certification at 4-5; Proxy Statement at 24-25. Atrisco LLC would receive all the income from Westland Development’s existing oil- and-gas leases, plus half the income from future mineral leases on Westland Development property. See Opposition to Class Certification at 4-5; Proxy Statement at 24-25. The agreement also provided for the creation of the Atrisco Heritage Foundation (“Atrisco Foundation”), a non-profit organization that was to be devoted to promoting and preserving the cultural heritage of the Atrisco heirs. See Opposition to Class Certification at 5; Proxy Statement at 24, 26-27.

On September 20, 2006, Westland Development filed its definitive Proxy Statement for the merger with the SEC and mailed the Proxy Statement to all Westland Development’s shareholders. See TAC ¶ 3, at 1; Proxy Statement at 3. A shareholder meeting was convened on November 6, 2006, and on November 21, 2006, Westland Development announced that shareholders had approved the merger. See TAC ¶ 5, at 5. Shareholders voted on the proposal, with 72.4% of Westland Development’s common shares and 97.75% of Westland Development’s Class B shares ultimately voting in favor of the SunCal Merger. See TAC ¶ 5, at 5. On December 7, 2006, West-land “announced the consummation of the” merger. TAC ¶ 5, at 5. As a result of the merger, approximately 6,100 Westland heirs got an average of $37,000.00 apiece, while the nine members of Westland Development’s Board of Directors received $15 million. See TAC ¶ 6, at 9.

4. Westland Development’s Proxy Statement.

Lane contends that the Defendants used the allegedly false and misleading Proxy Statement, which was disseminated to each Westland Development shareholder, to secure the votes needed to consummate the SunCal Merger. Lane asserts that, in an attempt to convince Westland Development’s shareholders of the legitimacy of the process used to sell Westland Development and the adequacy of the consideration given in exchange for Westland Development’s assets, the Proxy Statement falsely stated that “Westland’s board of directors had every reason to believe the post-signing market check would be effective in maximizing shareholder value by finding the best acquisition proposal for Westland.” TAC ¶ 4, at 3 (quoting Proxy Statement at 27). Lane also asserts that the Defendants caused the Proxy Statement to omit material facts necessary to make the statements made therein not false or misleading. See TAC at ¶ 4, at 3. These statements and omissions form the heart of this case. See TAC ¶¶ 38-58, at 19-39.

a. Conflicts of Interest.

Lane alleges that the Proxy Statement failed to fully disclose several conflicts of interest involving a number of Westland Development directors. The Proxy Statement disclosed that “some of Westland’s officers and directors have various relationships with Westland or interests in the merger that are different from your interests as a shareholder and that may present actual or potential conflicts of interest,” TAC ¶ 39, at 20 (quoting Proxy Statement at 29), revealing that two of Westland Development’s board members had contracts that would result in severance payments for involuntary dismissal, see TAC ¶ 39, at 20 (quoting Proxy Statement at 30). According to the Proxy Statement, Page was “employed as West-land’s president and chief executive officer under a renewable six year employment agreement” that also provided for seven times her annual salary as a severance payment if her employment were involuntarily terminated. TAC ¶ 39, at 20 (quoting Proxy Statement at 30). The Proxy Statement also states that Defendant Sosimo Padilla, Westland Development’s chairman and executive vice president, had a consulting agreement with severance terms similar to those in Page’s contract. See TAC ¶ 39, at 20 (quoting Proxy Statement at 30).

The Proxy Statement states that, in addition to money due under those contracts, the existing Westland directors could receive future positions on the board of Atrisco LLC and as trustees of the Atrisco Foundation. See Proxy Statement at 31. The existing Westland Development Board of Directors was given the power to appoint the Atrisco Foundation’s trustees from among Westland Development’s shareholders, and it was considered likely that “one or more” of Westland Development’s directors would be chosen as a trustee. Proxy Statement at 31. Atrisco LLC’s Board of Directors was to be drawn from the Westland Development Board of Directors, although which directors would be picked was said to be undecided. See Proxy Statement at 31.

According to Lane, the Proxy Statement fails to mention that Page and Padilla’s contracts were of recent vintage, having been secretly modified to secure their support for the merger. See TAC ¶¶ 40-41, at 21. Lane also asserts that the Proxy Statement fails to disclose that “at least four Westland directors were promised lifelong trusteeships” at the Atrisco Foundation or on the board of Atrisco LLC, and that, instead of receiving “customary fees” for their service, they were going to receive outsized “lucrative annual retainers.” TAC ¶ 42, at 22.

b. Page’s Vote Against the Merger.

Lane’s TAC states that the Proxy Statement contains nothing about the fact that Page voted against the merger at a board meeting on July 18, 2006, and that Defendant Troy Benavidez abstained from voting at the same meeting. See TAC ¶¶ 44-45, at 24-25. The Proxy Statement states only, Lane notes, that Westland Development’s Board of Directors recommends that the shareholders approve the merger and plan to vote their shares for the merger. See TAC ¶¶ 43-44, at 23-24 (quoting Proxy Statement at 5-12). Moreover, in a question-and-answer section about the merger, the Proxy Statement states that ‘Westland’s directors and officers plan to vote their shares in favor of the approval of the merger agreement.” Proxy Statement at 10. According to Lane, despite this representation, four of the nine directors on Westland Development’s board — Benavidez, Defendant Ray Mares, Jr., Defendant Charles Pena, and Defendant Randolph Sanchez — did not vote their Class A shares in favor of. the merger, while a fifth director — Defendant Joe Chavez — voted only 100 of his 310 Class A shares in favor of the merger. See TAC ¶ 45 & n. 4, at 24-25.

c. The Market-Check Process.

The Proxy Statement indicates that Westland Development was employing a market-check process in connection with the merger and that “Westland’s board of directors had every reason to believe the post-signing market check would be effective in maximizing shareholder value by finding the best acquisition proposal for Westland.” Proxy Statement at 27. The market check consisted primarily of the consideration of various offers to acquire the company. See Proxy Statement at 19-27. According to Lane, Westland Development never actively solicited prospective bidders to secure the best value for the company or otherwise determined the value of the shares at the time of the sale. See TAC ¶46, at 25-27. Lane further alleges that the negotiations with ANM Holdings detailed in the Proxy Statement “are either false or confirm that defendants falsified internal Westland documents because during the relevant period none of the Board minutes mention any negotiations with ANM.” TAC ¶ 46(a), at 25.

d. The Valuation of Westland Development.

Lane alleges that there were two important flaws in the Proxy Statement’s disclosure of the valuations made of Westland. The Proxy Statement mentions two separate valuations that the same independent valuation firm conducted- — one performed in 2001, and the other in 2005. The 2001 opinion valued Westland Development at about $87.00 per share, see Proxy Statement at 16, while the 2005 opinion valued Westland Development at about $180.00 per share, see Proxy Statement at 27. Lane alleges that the Proxy Statement fails to disclose that the 2001 valuation originally assessed Westland Development at $249.00 per share, but that Page ordered the company performing the valuation to manipulate the valuation downward to $87.00 per share. See TAC ¶ 48, at 28. Lane also alleges that the 2005 valuation is undermined by the Proxy Statement’s failure to mention an internal appraisal by Westland Development’s vice president of sales, Brent Lesley, which valued West-land Development at $474.00 per share, more than twice that of the 2005 valuation. See TAC ¶ 48(a), at 28.

e. The Westland Development’s Board of Directors’ Statement of Fairness.

According to the Proxy Statement, Westland Development’s Board of Directors thought the merger was “advisable and fair to, and in the best interests of Westland and Westland’s shareholders.” TAC ¶ 49, at 30 (quoting Proxy Statement at 26). The Proxy Statement also states that Westland Development’s Board of Directors held this belief, “in part, because the cash consideration to be received by holders of Westland common stock is fair, from a financial point of view, to the West-land shareholders.” TAC ¶ 49, at 30 (quoting Proxy Statement at 6). Lane contends that these statements are subjectively and objectively materially false and/or misleading, because the offer was below Lesley’s valuation, the directors did not have an independent valuation of the land, and Westland Development’s Board of Directors did not know the value of the land’s mineral rights, and some of the directors had expressed that they thought the offer was insufficient to justify selling part of their heritage. See TAC ¶ 49, at 30-32.

f. The Tax-Increment Development District (“TIDD”).

In discussing Westland Development’s Board of Directors’ views on the merger, the Proxy Statement asserts that West-land Development was a somewhat “unattractive” acquisition target, because it held a “vast amount of undeveloped land” that would be very expensive and time consuming to develop. TAC ¶ 50, at 32 (quoting Proxy Statement at 27). Additionally, the Proxy Statement asserts that Westland Development was facing “significantly increasing costs ... to develop its own land,” because the City of Albuquerque would not bear the infrastructure costs associated with recent Westland Development developments, such as the Petroglyphs. TAC ¶ 50, at 32 (quoting Proxy Statement at 28). Lane alleges the Proxy Statement, however, fails to mention that Westland Development had expertise in and was pursuing public financing, including hiring consultants and lobbyists. See TAC ¶ 51, at 33-34. Lane also contends that the Defendants failed to disclose that “SunCal had arranged to take advantage of an October 2006 TIDD which allowed SunCal to utilize tax dollars to fund the infrastructure costs associated with the development of Westland.” TAC ¶ 51, at 33-34.

g. Mineral Rights and Atrisco LLC.

Lane alleges that the Proxy Statement made four omissions regarding the mineral resources available to Westland Development and the creation of Atrisco LLC. The Proxy Statement represents that Westland Development had no opinion as to the value of Class A stock in Atrisco LLC, and stated that Westland Development’s management did not know if there was “oil, natural gas, coal bed methane gas or any other natural resource under Westland’s land,” and was “not aware of any commercially successful drilling on the property.” TAC ¶ 52, at 34 (quoting Proxy Statement at 7). Lane contends this statement ignores four important facts that should have been disclosed: (i) that Westland Development’s Board of Directors had been informed that between 100 and 500 million barrels of oil could be located on Westland Development’s property; (ii) that Sanchez had expressed his concern at an August 29, 2005, board meeting about losing valuable water and mineral rights; (iii) that Westland Development had received an offer from Savant Resources to lease all of Westland Development’s property for oil- and-gas exploration; and (iv) that Tecton Energy LLC had offered to expand its existing oil-and-gas-exploration lease from 7,000 to 30,000 acres. See TAC ¶ 52, at 35.

h. Participants in the Merger.

The Proxy Statement represents that Westland Development was furnishing the Proxy Statement in connection with the solicitation of proxies by Westland Development’s Board of Directors, and that “Westland and its directors and executive officers [we]re participating in the solicitation of proxies from Westland’s shareholders with respect to the matters described in this proxy statement. SunCal may also be deemed a participant in the solicitation of such proxies.” TAC ¶ 55, at 36 (quoting Proxy Statement at 13). The Proxy Statement further states that Westland Development, Defendant SCC Acquisition Corp., and Defendant SCC Acquisitions, Inc. were the “Participants in the Merger.” TAC ¶ 55, at 37 (citing Proxy Statement at 13). Lane contends that these statements were misleading, because they omitted a number of relevant entities. An organizational chart filed with the SunCal Companies Group’s October 31, 2007 TIDD application represented that, immediately before the merger, the SunCal Companies Group and its affiliates consisted of SCC NM Member LLC and D.E. Shaw Real Estate Portfolios 1, LLC (“DESCO Real Estate”), which are 7.5% and 92.5% owners, respectively, of SCC Westland Venture LLC (the parent of Westland Holdco, Inc.). See Westland Organizational Chart, filed February 9, 2009, 2009 WL 1312896 (Doc. ^^(“Organizational Chart”). Westland Holdco, Inc. is, in turn, the parent of SCC Acquisition Corp., the entity that was merged into Westland. Additionally, SCC Acquisition Corp. owned and/or controlled two of its subsidiaries, Westland SPE GP, LLC and Westland DevCo, LP. See Organizational Chart at 1.

i. Proxy Statement Solicitors.

The Proxy Statement included a segment dealing with Proxy Statement solicitors, which stated that “Westland expects to make arrangements with and compensate approximately 90 individuals to assist in the solicitation” of the proxies. TAC ¶ 57, at 39 (quoting Proxy Statement at 16). Westland Development did not hire any Proxy Statement solicitors. See TAC ¶ 58, at 39. Lane alleges that the Defendants were aware that Westland Development never hired any Proxy Statement solicitors, and that SCC Acquisition Corp. retained all the Proxy Statement solicitors, “who secretly received lucrative payments for delivering votes in favor of the” merger. TAC ¶ 58, at 39.

5. The State Litigation.

On February 21, 2006, Rachel M. Stubbs filed a complaint in connection with the Board of Directors agreement to merge with ANM Holdings in the Second Judicial District Court, Bernalillo County, State of New Mexico. See Declaration of Darren J. Robbins in Support of Lead Plaintiffs Motion for Final Approval of Class Action Settlement ¶ 15, at 6, filed January 27, 2012 (Doc. 372)(“Robbins Decl.”); Stipulation of Settlement at 11, filed December 9, 2011 (Doc. 363)(“Settlement”). In that case, Stuffs alleged that the Individual Defendants violated their fiduciary duties and stood to gain twenty-six million dollars — including $3.2 million in golden parachute termination payments and “$7 million via 35,000 ‘change in control’ Class B shares they issued to themselves in anticipation of the merger.” Robbins Decl. ¶ 15, at 6. Three other shareholder actions were filed in the Second Judicial District Court soon thereafter: (i) on March 2, 2006, Rael v. Page, No. D-202-CV-2006-01756; (ii) on March 13, 2006, Lane v. Page, No. D-202-CV-2006-02055; and (iii) on March 16, 2006, Apodaca v. Page, No. D-202-CV-2006-02144. See Settlement at 6, 11; Robbins Decl. ¶ 15, at 6. “In the interests of efficiency and judicial economy, the parties deemed the Rael Action the lead case in the State Actions.” Settlement at 11. See Robbins Decl. ¶ 17, at 9. Coughlin Stoia Geller Rudman & Robbins, LLP of San Diego, California represented Maria Elena Rael in the state action. See Rael v. Page, No. D-202-CV-2006-01756, Filing Affidavit of Darren J. Robbins (dated March 14, 2006) available at http://www2.nmcourts.gov/caselookup/ app; Rael v. Page, 147 N.M. 306, 306, 222 P.3d 678, 679 (Ct.App.2009). After the filing of the Rael v. Page action, Westland Development amended its merger agreement to clarify that the 35,000 Class B change-in-control shares would not be issued, which increased the per share price from $255.00 to $266.23. See Robbins Decl. ¶ 18, at 9. On June 21, 2006, the defendants in Rael v. Page — the Individual Defendants and Westland Development-filed a motion to dismiss the complaint and on June 28, 2006, after receiving another offer, moved to stay discovery until a new proxy was filed. See Settlement at 11. Rael unsuccessfully opposed the defendants’ efforts to stay discovery and filed an amended complaint on September 27, 2006. See Settlement at 11-12. Rael deposed various parties and prepared and served expert reports. See Settlement at 12. Discovery involved thirteen boxes, approximately 33,000 pages of document reviews, and five depositions. See Robbins Decl. ¶ 22, at 10-11. On November 2, 2006, the district court issued a one-page order granting the defendants’ motion to dismiss. See Settlement at 12. Rael successfully appealed the dismissal, and the Court of Appeals of New Mexico reversed the state court’s holding. See Settlement at 12-13; Rael v. Page, 147 N.M. at 308, 222 P.3d at 680. The defendants then filed a writ of certiorari to the Supreme Court of New Mexico, which the Supreme Court of New Mexico denied on September 30, 2006. See Settlement at 14.

After the case was remanded to the state trial court, Rael filed a second amended complaint to include additional parties and refine her post-merger allegations. See Settlement at 15. The parties engaged in discovery, including serving deposition notices and requests for production. See Settlement at 15. “Certain of the defendants answered the complaint, while others filed motions to dismiss which required full briefing by the parties.” Robbins Decl. ¶ 41, at 15. The defendants also moved to stay the state action in favor of this case, which Rael opposed. See Robbins Decl. ¶ 41, at 15. In April 2011, the state court stayed Rael v. Page in favor of this action. See Robbins Decl. ¶ 41, at 15.

6. Remaining Merger Consideration.

In the Agreement and Plan of Merger (dated July 19, 2006), filed March 13, 2012 (Doc. 401-l)(“Merger Agreement”), the parties to the merger agreed:

At any time which is more than six (6) months after the Effective Time, the Surviving Corporation, will be entitled to require the Paying Agent to deliver to it any funds which had been deposited with the Paying Agent and have not been disbursed in accordance with this Article III (including, without limitation, interest and other income received by the Paying Agent in respect of the funds made available to it), and after the funds have been delivered to the Surviving Corporation, Persons entitled to payment in accordance with this Article III will be entitled to look solely to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) for payment of the Cash Merger Consideration upon surrender of the Certificates held by them, without any interest thereon; provided, that such Persons will have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving [Corporation]....

Merger Agreement at 4 (emphasis original). Since the Paying Agent, Mellon Investor Services, LLC, began the disbursement of funds, some shareholders of Westland Development have not come forward to claim their funds. See Notice of Deposit into Court Registry at 1-2, filed June 6, 2011 (Doc. 353). In the Disbursing Agent Agreement, filed June 6, 2011 (Doc. 353-1), the parties to the merger agreed that, “[a]t the request of the Surviving Corporation, Mellon shall deliver to the Surviving Corporation or its designee all unexchanged securities and related unclaimed property for the Surviving Corporation one year after the Effective Time.” Disbursing Agent Agreement ¶ 12, at 5. The Remaining Merger Consideration is the $2,278,702.41 in unpaid shareholder proceeds remaining after the SunCal Merger. See Settlement at 7. On May 23, 2011, the Court ordered, in conformance with the parties’ stipulation, that the Remaining Merger Consideration be transferred to the Court registry pending the outcome of the litigation. See Stipulated Order at 3, filed May 23, 2011 (Doc. 352).

7. Financial State of the Defendants.

On April 5, 2010, Westland DevCo, LP filed a petition for bankruptcy relief under Chapter 11 of Title 11 of the United States Code. See In re Westland DevCo, LP, Case No. 10-bk-11166-CSS (D.DeLBankr.), Declaration of Bruce V. Cook in Support of Debtor’s Chapter 11 Petition ¶ 2, at 2 (dated April 5, 2010), filed April 9, 2010 (Doc. 200-l)(“Cook Deck”). Commercial property values dropped approximately forty percent in value nationwide between October 2007 and April 2010, and commercial property values in Albuquerque dropped approximately twenty-seven percent during the same period. See Richard Metcalf, “Real Estate Moves at Fire-Sale Prices; As Values Slump, Market for Commercial Properties Tilts Heavily in Favor of Buyers,” Albuquerque Journal (dated April 5, 2010), filed April 9, 2010 (Doc. 200-2). The 54,000 acres acquired in the SunCal Merger have been foreclosed upon. See Lead Plaintiffs Memorandum of Law in Support of Motion for Final Approval of Class Action Settlement at 10, filed January 27, 2012 (Doc. 371)(“Memo Seeking Approval”).

PROCEDURAL BACKGROUND

Lane filed his initial Complaint on November 3, 2006, in which he asserted class-action claims under § 14(a) and § 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a through 78oo (“Exchange Act”). Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9, filed November 3, 2006 (Doc. l)(“Complaint”). Lane filed his Request for Hearing on Motion and Memorandum of Law in Support of Plaintiffs Application for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue contemporaneously with his Complaint. See Doc. 3 (“Motion for TRO”). Lane asked that the Court enjoin the scheduled November 6, 2006 shareholder vote “until shareholders receive the material information they need to make an informed decisions on whether or not to divest themselves of their historic ownership in the Atriseo Land Grant.” Motion for TRO at 5. After a five hour hearing, the Court denied the Motion for TRO. See Clerk’s Minutes at 1 (dated November 3, 2006), filed December 13, 2006 (Doc. 25). The Court held that Lane had not met his high burden of establishing “a clear and unequivocal right,” or that there was a “substantial likelihood” that he would prevail. Clerk’s Minutes at 2. The Court agreed with Lane that the public interest is served “by complete and full information,” but found that Lane had not established that there were misrepresentations or that any such misrepresentations were material. Clerk’s Minutes at 4.

On September 17, 2007, Lane filed a first amended complaint. See Amended Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9, filed September 17, 2007 (Doc. 50)(“First Amended Complaint”). On December 3, 2007, the Defendants filed motions to dismiss the First Amended Complaint. See Motion to Dismiss and Joinder in Director Defendants’ Motion to Dismiss, filed December 3, 2007 (Doc. 52); Motion to Dismiss, filed December 3, 2007 (Doc. 53). The Court granted in part and denied in part those motions on September 15, 2008. See Order, filed September 15, 2008 (Doc. 81); Memorandum Opinion, filed September 24, 2008 (Doc. 83)(“September 24, 2008 MO”). The primary issues that the Court addressed were: (i) whether Lane’s allegations were “so dependent upon alleged corporate mismanagement under New Mexico state law that they [could not] support a federal claim under § 14(a)”; (ii) whether the Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4 (“PSLRA”) imposed “heightened pleading requirements on Lane’s allegations and whether Lane’s pleadings [met] those requirements”; (iii) whether the omissions and misrepresentations which Lane alleged that the Defendants’ proxy solicitation contained were material; and (iv) whether Land had “properly stated a § 20(a) control person claim.” September 24, 2008 MO at 1099. The Court found that: (i) Lane’s claims fit § 14(a)’s parameters, and that his allegations did not turn on state law; (ii) the PSLRA applied in part to Lane’s allegations, but that Lane’s pleadings were sufficient to satisfy the PSLRA’s requirements; and (iii) that Lane had properly stated a § 20(a) claim. See September 24, 2008 MO at 1099-1100. The Court also found that: (i) Westland Development’s conflict-of-interest disclosures were not misleading and any omissions were not material; (ii) the market-check procedures described in the Proxy Statement were not materially false or misleading; (iii) the failure to disclose the internal valuation was not material; (iv) the statement that Westland Development’s Board of Directors thought the SunCal Merger was in the best interests of Westland Development’s shareholders was not materially false or misleading; (v) the failure to disclose information regarding the TIDD was not material; (vi) the failure to disclose oil-reserve information was not material; and (vii) the failure to disclose that only the SunCal Companies Group hired proxy solicitors was not material. See September 24, 2008 MO at 1120-29. Accordingly, the Court dismissed without prejudice those claims related to omissions or statements that the Court found to be true or immaterial. See September 24, 2008 MO at 1181-32.

On December 1, 2008, Lane filed a motion to amend his First Amended Complaint. See Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, filed December 1, 2008 (Doc. 105). The Court granted that motion on February 5, 2010. See Order Granting Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure at 1, filed February 5, 2009 (Doc. 144). Pursuant to the order granting the motion, Lane filed his Second Amended Complaint. See Second Amended Complaint for Violations of §§ 14(a) and 20(a) of the Securities and Exchange Act of 1934 and SEC Rule 14a-9, filed February 9, 2009 (Doe. 145)(“Second Amended Complaint”). Various Defendants filed motions to dismiss the Second Amended Complaint. See Director Defendants’ Motion to Dismiss Second Amended Complaint, filed February 5, 2009 (Doc. 142); Defendants Westland’s and SunCal’s Motion to Dismiss and Joinder in the Director Defendants’ Motion to Dismiss, filed February 5, 2009 (Doc. 143); and the D.E. Shaw Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint, filed February 26, 2009 (Doc. 152). The Court granted in part and denied in part those motions. See Memorandum Opinion and Order, 649 F.Supp.2d 1256, 1309-1310 (D.N.M.2009) (Doc. 177)(“July 17, 2009 MOO”). In the July 17, 2009 MOO, the Court was deciding: (i) whether the Court should allow allegations in the Second Amended Complaint which the Court did not expressly give leave to add; (ii) whether Lane sufficiently pled the alleged damages of the Westland Development shareholders; (hi) whether the allegations in the Second Amended Complaint were material under § 14(a); (iv) whether the statute of limitations barred the claims against the D.E. Shaw Defendants; and (v) whether Lane adequately pled the claim against the D.E. Shaw Defendants under § 20(a). See July 17, 2009 MOO at 1262. The Court found that Lane’s allegations regarding economic loss were conclusory. See July 17, 2009 MOO at 1262. The Court also found that most of Lane’s amendments were insufficient to cure the deficiencies that the Court identified in the September 24, 2009 MO, with the exception of the allegations related to proxy solicitors and the fairness statement, which the Court found had been sufficiently supplemented to support a claim. See July 17, 2009 MOO at 1262-63. With respect to loss causation, the Court stated that the “flaw requiring dismissal is relatively technical and likely to be easily remedied,” and that the Court would not enter judgment for ten days to give Lane an opportunity to file a motion to amend and cure that deficiency. See July 17, 2009 MOO at 1273. The Court noted that the Supreme Court of the United States, in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), altered the landscape of securities law. See July 17, 2009 MOO at 1277-78. It stated that an adequate pleading of economic loss would indicate what the loss contemplated is and the basic causal connection for the loss, which Lane failed to do. See July 17, 2009 MOO at 1279.

On July 15, 2009, Lane filed a motion to amend his Second Amended Complaint. See Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure (Doc. 176). On March 31, 2010, the Court issued an Order granting Lane’s motion to amend, see Doc. 199, and, on June 8, 2010, 727 F.Supp.2d 1214 (D.N.M. 2010), the Court issued its Memorandum Opinion more fully explaining its decision, see Doc. 204 (“June 8, 2010 MO”). The Court found that Lane had sufficiently alleged both causation and damages. See June 8, 2010 MO at 1230. The Court noted that many of the Defendants’ arguments were better aimed at a motion for summary judgment and that, taking the alleged facts as true, Lane stated a plausible claim for relief. See June 8, 2010 MO at 1235-36. On June 17, 2010, Lane filed his TAC. On July 1, 2010, the SunCal Companies Group filed its Answer to the Third Amended Complaint by SunCal (“SunCal TA”). Doc. 208. The party identified as responding to the TAC was “SunCal, improperly named as SunCal Companies Group.” SunCal TA at 1. One day later, on July 2, 2010, the SunCal Companies Group amended its Answer to respond on behalf of “Defendant SCC Acquisition Corp. (‘SCC’), improperly named as SunCal Companies Group.” Amended Answer to the Third Amended Complaint by SCC Acquisition Corp., filed July 2, 2010 (Doc. 211)(“SunCal TAA”). On March 31, 2010, the Court issued an Order granting Lane’s Motion to Amend. See Doc. 199. On June 17, 2010, Lane filed his TAC. The core of Lane’s claims is that Westland Development’s shareholders received too low a price for their shares. See TAC ¶ 64, at 40-41; June 8, 2010 MO at 1227-28, 1230-31, (stating that Lane had adequately pled damages).

On January 10, 2011, the Court joined eight entities to the case: (i) SCC NM Member LLC; (ii) SCC Westland Venture LLC; (iii) Westland Holdco, Inc.; (iv) SCC Acquisition Corp.; (v) SCC Acquisitions Inc.; (vi) Westland SPE GP, LLC; (vii) Westland DevCo, LP; and (viii) West-land DevCo, LLC. See Memorandum Opinion and Order at 1, filed January 10, 2011 (Doc. 283). In a separate memorandum opinion and order, filed the same day, the Court also: (i) certified a class of all persons who held the outstanding shares of Westland no par value Class A common stock as of the close of business on September 18, 2006, excluding the Defendants; (ii) certified Lane as the class representative; (iii) appointed Robbins Geller Rudman & Dowd LLP as class counsel; and (iv) defined the class claims as: (a) against all the Defendants for violations of § 14(a) of the Exchange Act and rule 14a-9 promulgated thereunder, 17 C.F.R. § 240.14a-9; and (b) against the Individual Defendants, the SunCal Companies Group, and the D.E. Shaw Group for violations of § 20(a) of the Exchange Act. See Memorandum Opinion and Order at 581, filed January 10, 2011 (Doc. 284)(“January 10, 2011 MOO”). In a forty-six page opinion, the Court concluded that rule 23’s requirements were satisfied, see January 10, 2011 MOO at 573-74, and that Lane could serve as a class representative, despite some “troubling” issues from his past, January 10, 2011 MOO at 579.

1. Stipulation of Settlement.

On December 9, 2011, the parties filed the Stipulation of Settlement. See Doc. 363. The Settlement notes that the Defendants “have denied and continue to deny each and all of the claims and contentions alleged by Lead Plaintiff in the Litigation.” Settlement at 16. Nonetheless, the Defendants “have concluded that further conduct of the Litigation could be protracted and expensive and that it is desirable that the Litigation be fully and finally settled.” Settlement at 17. Lane asserts that the class claims have merit, but acknowledges that “the expense and length of continued proceedings necessary to prosecute the Litigation” and “have taken into account the uncertain outcome and the risk of any litigation.” Settlement at 17. The parties stipulate and agree that, subject to Court approval of the Settlement, all claims that have or could have been brought in relation to this action are released. See Settlement at 17. The cash settlement consists of $3.8 million comprised of: (i) a cash payment of $1,500,000.00 by the DES-CO Defendants; and (ii) $2,278,702.41 in the Remaining Merger Consideration— plus any accumulated interest. See Settlement at 18. The Individual Defendants acknowledge that the Rael v. Page action influenced their decision to: (i) waive their claim to 35,000 “change-in-control” shares; (ii) transfer the Santa Clara, San Jose de Armijo, and Evangélico cemeteries and the La Capillita Antigua church to the Atrisco Foundation; (iii) produce Westland Development’s corporate books and records to shareholders; and (iv) convene an annual shareholder meeting on June 8, 2006. Settlement at 17. The Individual Defendants acknowledge that SCC Acquisition Corp.’s $315.00 per share offer on which the West-land Development shareholders voted on at the November 6, 2006 meeting was $60.00 per share higher than the $255.00 per share offer that the Individual Defendants agreed to on February 24, 2006. See Settlement at 17-18. Westland DevCo, LLC also acknowledges that it was aware of the Rael v. Page action and considered the allegations therein when it made its offers. See Settlement at 18. The parties assert that the Remaining Merger Consideration was paid into the federal court registry through Lane’s efforts in cooperation with Westland DevCo, LLC, the SunCal Companies Group, and the DESCO Defendants. See Settlement at 18. As part of the Settlement, Lane and Robbins Geller Rudman & Dowd LLP promise to use reasonable efforts to identify, locate, and make payment of the $315.00 per share cash consideration to class members who failed to tender their shares and/or were not located at the time of the SunCal Merger. See Settlement at 18.

Through the Settlement, Lane and each class member shall be deemed to have “fully, finally, and forever released, relinquished, and discharged” their claims against the Defendants. Settlement at 24. The Defendants shall also be deemed to have “fully, finally, and forever released” any claims against Lane, class counsel, or the class members related to this action. Settlement at 24. The Claims Administrator, Gilardi & Co. LLC, will administer and calculate the class members’ claims and oversee the disbursement of funds to any authorized claimant. See Settlement at 25. The Remaining Merger Consideration will then be distributed to the class members on a pro rata basis. See Settlement at 25. The $1.5 million paid by the DESCO Defendants will not be used to compensate the unpaid class members. See Settlement at 26. If, after six months, there is any remaining balance, Lane will reallocate the balance among the authorized claimants. See Settlement at 27.

With respect to attorney’s fees and expenses, the Individual Defendants’ insurance carrier will reimburse Robbins Geller Rudman & Dowd LLP for expenses incurred up to $650,000.00. See Settlement at 27. The insurance carrier will also pay attorney’s fees of $3.1 million. See Settlement at 27. The Settlement provides that the attorney’s fees are not part of the Settlement and that the Court should consider them separately. See Settlement at 28.

On December 19, 2011, the Court entered an Order Preliminarily Approving Settlement and Providing for Notice. See Doc. 366 (“Order Preliminarily Approving Settlement”).

2. Motion for Approval of Class Settlement.

On January 27, 2012, Lane filed the Motion for Approval of Class Settlement. See Doc. 370. In the Memo Seeking Approval, Lane asserts that, “[ajfter five years of hard-fought litigation and extensive settlement negotiations, the parties agreed on the terms of a Settlement.” Memo Seeking Approval at 8. He represents that the Settlement resolves all claims against all Defendants in this action as well as breach of fiduciary duty claims pending in the Second Judicial District Court. See Memo Seeking Approval at 8. Lane asserts that the class will receive a “$60 per share increase in cash consideration from what was to be paid to West-land shareholders in connection with [Sun-Cal] merger, as well as an additional $3,793,509.25 in cash.” Memo Seeking Approval at 8. Lanes states that the Settlement was not reached until he:

(i) moved for a preliminary injunctions and temporary restraining order on the eve of the shareholder vote; (ii) successfully opposed two rounds of defendants’ motions to dismiss; (iii) convinced the New Mexico Court of Appeals, through extensive briefing and oral argument, to reverse the State Court’s dismissal of the Rael Action and successfully opposed defendants’ Petition for Writ of Certiorari to the New Mexico Supreme Court; (iv) obtained class certification over defendants’ aggressive opposition; (v) conducted extensive discovery, including reviewing and analyzing over 250,000 pages of documents produced by defendants and non-party witnesses; (vi) prepared for and conducted 38 fact witness depositions; (vii) responded to discovery propounded by defendants and produced thousands of pages of documentation in response to defendants’ document requests; (viii) prepared lengthy, detailed responses to contention interrogatories and requests for admission; (ix) successfully litigated numerous complex discovery motions; (x) produced expert reports for three testifying experts for Lead Plaintiff; and (xi) began preparing for trial, including creating a trial plan and selecting the exhibits and testimony to be used at trial.

Memo Seeking Approval at 9-10. He argues that the Settlement takes into account the specific risks of continued litigation, including that the 54,000 acres acquired in the SunCal Merger have been foreclosed upon and that several of the entities involved in the purchase of Westland Development are no longer financially viable. See Memo Seeking Approval at 10. Lane states that, as a result of negotiations between class counsel and the Individual Defendants’ insurance carrier, the insurance carrier agreed to pay class counsel in the amount of: (i) up to $650,000.00 in expenses; and (ii) $3.1 million in fees. See Memo Seeking Approval at 11. He also states that he would receive reimbursement for his time in the amount of $4,725.00, as permitted under the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4. See Memo Seeking Approval at 11. Lane requests that the Court enter an order: (i) determining that the Settlement is fair; (ii) granting final approval of the Settlement and entering final judgment; (iii) approving the payment of attorney’s fees and expenses; and (iv) authorizing a payment to Lane for his time. See Memo Seeking Approval at 11.

Lane argues that the Settlement was fairly and honestly negotiated. See Memo Seeking Approval at 18. He contends that this action has been “hotly contested” with over 360 docket entries over the course of the past five years. Memo Seeking Approval at 18. Lane asserts that the parties have extensively briefed numerous complex issues and that the settlement agreement took many months to negotiate. See Memo Seeking Approval at 18 (citing Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D.Colo.2006)). Additionally, Lane points out that all parties were represented by “multiple counsel with expertise on the [securities laws] and complex class litigation.” Memo Seeking Approval at 18-19 (alteration original)(quoting Lucas v. Kmart Corp., 234 F.R.D. at 693). He argues that where, as here, the settlement resulted from arm’s length negotiations, the Court may presume the settlement to be fair, adequate, and reasonable. See Memo Seeking Approval at 19. Lane further asserts that serious questions of law and fact exist that create a significant risk of obtaining a more favorable result after continued litigation. See Memo Seeking Approval at 19. He contends that class counsel obtained sufficient information to weigh the benefits of settlement against the risks of continued litigation. See Memo Seeking Approval at 19. As to the risks, Lane points out that the Defendants have strenuously argued at every stage of the litigation that the class’ claims lack merit and the Court’s rulings denying the Defendant’s motions to dismiss “provide no guarantee that [the class] will prevail on the merits.” Memo Seeking Approval at 19 (citing McNeely v. Nat'l Mobile Health Care, LLC, No. CIV-07-933-M, 2008 WL 4816510, at *13 (W.D.Okla. Oct. 27, 2008)). He emphasizes that the parties have vigorously contested whether the element of loss causation could be established. See Memo Seeking Approval at 20 (citing Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 343, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); Lane v. Page, 727 F.Supp.2d 1214 (D.N.M.2010)(Browning, J.)). Lane represents that the SunCal Merger was consummated at the peak of a “major real estate bubble” and that subsequent appraisals of the Westland Development land show a “marked decrease in value since the closing of the Merger.” Memo Seeking Approval at 20. He argues that damages would also have been hotly contested and that, in the end, this element would have been reduced to a “battle of experts.” Memo Seeking Approval at 20 (citing In re Veeco Instruments Inc. Sec. Litig., No. 05 MDL 0165(CM), 2007 WL 4115809, at *10 (S.D.N.Y. Nov. 7, 2007); In re Warner Commc’ns Sec. Litig., 618 F.Supp. 735, 744 (S.D.N.Y.1985) aff'd 798 F.2d 35 (2d Cir. 1986)).

Lane asserts that the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation. See Memo Seeking Approval at 21. He reiterates that this litigation has been pending for five years and that significant time investments will be necessary before a trial, including motions for summary judgment, motions in hmine, and motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Memo Seeking Approval at 21. He contends that the lack of financial viability of key Defendants will render collection on a monetary judgment difficult to obtain. See Memo Seeking Approval at 22. He argues that, “[b]y contrast, the proposed settlement agreement provides the class with substantial guaranteed relief’ now. Memo Seeking Approval at 22 (quoting Lucas v. Kmart Corp., 234 F.R.D. at 694)(citing McNeely v. Nat’l Mobile Health Care, LLC, 2008 WL 4816510, at *13). Lane asserts that class counsel has significant experience and expertise in securities and other complex class action litigation. See Memo Seeking Approval at 22. He contends that class counsel “used that expertise and experience to effectively prosecute this litigation, reaching a favorable result.” Memo Seeking Approval at 23. He argues that all of these facts support granting approval of the Settlement.

With respect to attorney’s fees and expenses, Lane contends that it is “axiomatic that a ‘request for attorney’s fees should not result in a second major litigation’ ” and that “ideally, of course, litigants will settle the amount of a fee.” Memo Seeking Approval at 23 (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)(Powell, J.)). He represents that class counsel and the Individual Defendants’ insurance carrier separately negotiated the fee and expense portion of the Settlement. See Memo Seeking Approval at 23. He argues that the attorney’s fees and expenses will not reduce the class award. See Memo Seeking Approval at 23-24 (citing In re Resorts Int’l S’holder Litig., No. 9470, 1990 WL 154154, at *6 (Del.Ch. Oct. 11, 1990)). Lane asserts that the $3.1 million fee - and $650,000.00 expense amount .is fair and reasonable, because it “represents a significant discount to the lodestar invested in this Litigation by Plaintiffs’ Counsel.” Memo Seeking Approval at 24. He states that, during the course of the litigation, class counsel have devoted more that 18,000 hours of attorney and para-professional time resulting in a lodestar of $9.1 million. See Memo Seeking Approval at 24. Lane argues that the attorney’s fee represents only six percent of the more than $51 million in cash consideration benefits to the class members. See Memo Seeking Approval at 24. He asserts that this includes the two to five dollars per share to be paid pursuant to the Settlement and the $60.00 per share increased consideration received as a result of the state actions in which the plaintiffs alleged director self-dealing and failure to maximize shareholder value. See Memo Seeking Approval at 24.

Lane contends that the applicable twelve-factor test, developed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and which the United States Court of Appeals for the Tenth Circuit adopted, see Gottlieb v. Barry, 43 F.3d 474, 483 & n. 4 (10th Cir.1994), weighs heavily in favor of approving the award of attorney’s fees and reimbursement of expenses. See Memo Seeking Approval at 25. He argues that the time and labor invested to adequately and successfully prosecute this litigation supports the fees and expenses, because class counsel prosecuted the litigation for “five years on a contingency basis without payment and advanced all costs and expenses incurred on behalf of the Class without any assurances of a fee or even reimbursement.” Memo Seeking Approval at 25. He asserts that the negotiated fee amount is “less than one-third of what Plaintiffs’ Counsel invested in litigating the case over the past five years.” Memo Seeking Approval at 25 (emphasis original). Moreover, Lane contends that class counsel have incurred expenses, and will likely incur more expenses, in the prosecution of the litigation in an amount which exceeds the $650,000.00 request. See Memo Seeking Approval at 25. He argues that class counsel’s efforts have yielded substantial economic benefits to the class. See Memo Seeking Approval at 25. Lane asserts that, in cases such as this one, where class counsel provides both substantial economic and non-economic benefits, courts often assess the attorney’s fees as a percentage of any increase in price to assess its reasonableness. See Memo Seeking Approval at 27 (citing In re Nationwide Fin. Servs. Litig., No. 2:08-CV-002