Full opinion text
DECISION AND ORDER GRANTING FINAL APPROVAL OF THE SETTLEMENT McMAHON, District Judge. On August 8, 2011, after a lengthy presuit investigation, more than four years litigation, and eight months of negotiations facilitated by Magistrate Judge Ronald Ellis, Class Counsel, Jenner & Block, LLP, by its Partner, Richard F. Levy, acting on behalf of the members of the Liability Class and Injunctive Class certified by this Court in its April 27, 2010 Order (“Class Members” or “Plaintiffs”), and Defendants, the Pinnacle Group N.Y. LLC and Joel Wiener, entered into a Proposed Settlement Agreement (“Settlement” or “Settlement Agreement”) to resolve Charron, et al. v. Pinnacle Group N.Y. LLC, et al., No. 07-6316 (“the Action”), a class action lawsuit alleging that Defendants harassed and intimidated tenants in thousands of rent-regulated apartments throughout New York City, in violation of the federal civil racketeering statute, 18 U.S.C. § 1962(c) (“RICO”), and the New York Consumer Protection Act, N.Y. Gen. Bus. L. § 349 (“NYCPA”). This Court must decide whether to approve the Settlement Agreement. If the Settlement is approved, Defendants will agree not to contest its liability for violating either the RICO statutes or the NYCPA in proceedings brought before a Claims Administrator by Class Members. (Pinnacle continues to deny any wrongdoing.) In such proceedings, Class Members will be able to recover damages for a variety of claims (though not all conceivable claims). The process will be administratively stream-lined, and tenants can collect either a fixed amount of damages or such greater amount as they can prove, and there is no cap on the amount of actual damages for which Defendants can be found liable. No general releases will be exchanged; the only claim that will be extinguished by the Settlement will be the claims under RICO and the NYCPA that were brought as Counts I and II of the Second Amended Complaint. If a Class Member tenant has a viable rent overcharge claim, he can pursue that claim either through the claims administration process (as long as the claim accrued within the Class Period and is based on a rent increase that Pinnacle caused, see below), or in the New York state courts. Pinnacle will pay $2.5 million to educate and assist tenants regarding their rights under the Settlement Agreement. Moreover, a rent audit will be performed at Pinnacle’s expense; if it reveals a certain percentage of illegal overcharges, all Pinnacle leases will be audited. The rent audit may lead to further rent adjustments. Finally, Defendants have agreed to follow certain “best practices” in their dealings with tenants, as set forth in detailed protocols, which will be enforceable by an injunction. This Settlement does not get the class everything it wants; however, it gets the class a good deal that it does not presently have. By contrast, if the Settlement is not approved, the next step in the continuing litigation will almost certainly be a motion by Defendants to decertify the classes, which has a substantial chance of succeeding in view of the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). If the class is not decertified, liability under RICO and the NYCPA will be vigorously contested. Appeals will inevitably follow. And even if the class succeeds in proving the statutory violations alleged in the Complaint, there will have to be individual damage hearings to assess how much is owed to each Class Member—proceedings that will likely resemble the Claims Administration procedures negotiated in the Settlement, except that they will take longer and will be more formal and rule-bound. The entire process will take years. Following an extended notice period, significant media attention, and efforts by the Class Representatives to highlight the perceived shortcomings of the Settlement Agreement, fewer than 1% of more than 26,000 tenants to whom notice was mailed elected to opt out. Of those who did not opt out, fewer than 1% voiced objections to the Settlement Agreement. Among the objectors are the named Plaintiffs and a number of tenants, whose sincere and deeply felt concerns I have pondered at length. The Settlement is not, and cannot be, all things to all people. However, I believe that it is fair, reasonable, and adequate to the class as a whole. This is a case where the perfect could easily become the enemy of the good; that would not be in the best interests of the class as a whole. I thus approve the Settlement. I. BACKGROUND A. Litigation leading to the Settlement. In July 2007, following a year-long investigation, Plaintiffs brought suit pursuant to the federal civil racketeering statute, 18 U.S.C. § 1962(c), and New York’s Consumer Protection Act, N.Y. Gen. Bus. L. § 349, alleging that Defendants Pinnacle Group N.Y. LLC (“Pinnacle”) and its CEO Joel Wiener, acting in concert with others (collectively, the “Pinnacle Enterprise”), acquired several hundred apartment buildings during the real estate boom between 1999 and 2006, and then engaged in fraud and harassment to drive rent-regulated tenants out of their apartments. Each vacancy in a rent-regulated apartment would have entitled Pinnacle to a large increase in the legal rent—in some, to complete deregulation of the apartment on a going forward basis. In their Second Amended Complaint (“SAC”), Plaintiffs alleged that the Pinnacle Enterprise thereby sought to: (1) circumvent New York law by deregulating the apartments and obtaining rents in excess of those legally permitted, and (2) sell the illegally deregulated apartments in the then-booming condominium market. The SAC alleges that Pinnacle carried out these activities by: (1) misrepresenting the legally chargeable rent and the status and cost of renovations; (2) misrepresenting and refusing to acknowledge tenants’ succession rights; (3) filing meritless eviction proceedings (more than 5,000 during a 29-month period); (4) harassing and intimidating tenants through a variety of means; and (5) providing false information to government agencies. (See 4/27/10 Order Granting In Part and Denying In Part Plaintiffs’ Motion for Class Certification, 269 F.R.D. 221 at 225-26 (S.D.N.Y.2010), Dkt. 96, hereinafter “Certification Order”.) Defendants have denied, and continue to deny, all of these allegations. Over the course of this lawsuit, there have been several legal battles between the two sides: • On September 5, 2008, 575 F.Supp.2d 499 (S.D.N.Y.2008), this Court denied Defendants’ Motion to Dismiss the SAC, finding that the factual allegations of the SAC stated a cause of action under RICO and the NYCPA. (Dkt. 32.) • On April 27, 2010, following class certification discovery, this Court overruled Defendants’ objections to Plaintiffs’ motion for class certification and certified two classes. (Certification Order.) • On September 29, 2010, the Second Circuit denied Defendants’ petition for leave to appeal this Court’s Order certifying the classes. (2d Cir.Mandate, Dkt. 107.) If the Settlement is not approved, Defendants have advised that they will move to decertify the classes established by this Court’s April 27, 2010 Order in light of Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), which was handed down in June of last year. See Declaration of Richard Levy (“Levy Deck”) ¶ 8. The Settlement results from arm’s-length negotiations spanning more than a year, following the Second Circuit’s rejection of Defendants’ request to appeal this Court’s Order certifying the tenant classes. After many discussions, the parties submitted confidential settlement proposals for the consideration of Magistrate Judge Ronald Ellis, who had been designated by the Court to mediate and supervise the progress of settlement. Class Counsel and Defendants’ Counsel attended two additional mediation conferences with Judge Ellis (including a six-hour continuous session) during which the parties’ differences were narrowed; additionally, the Class Representatives attended two mediation conferences with Judge Ellis, which is an extraordinary procedure in my experience. Finally, since the Class Certification ruling, Class Counsel has met in person with Class Representatives several times as settlement negotiations progressed, held telephone conferences with individual Class Representatives, and participated in at least three community meetings that included, in each case, hundreds of Class Members. After extended negotiations, the counsel finally reached a settlement agreement (the “Settlement” or “Settlement Agreement”). B. The Terms of the Settlement Agreement. 1. Claims Administration Process. Class Members will eligible to receive redress for: (1) past rent overcharges, subject to certain exclusions, discussed below; (2) harassment, in whatever form, including failure to make necessary repairs and meritless evictions; (3) meritless billings and eviction proceedings related to alleged nonpayment of rent; and (4) interference with occupancy rights through meritless and unduly burdensome queries regarding matters such as succession rights, primary residence, roommates, and subletting. With respect to overcharges, Defendants will pay double the rent overcharge plus interest if the overcharge is deemed “willful.” Willfulness will be presumed and Defendants will bear the burden of overcoming that presumption. Class Member Claims will be submitted to a Claims Administrator, former New York Supreme Court Justice Marylin Shafer, on a simplified “Notice of Claim” form. The Claims Administrator will have the power to order document production from Pinnacle, or to request it from State agencies. She will not be required to apply the Rules of Evidence and her decisions will be final and non-appealable. Tenants may not bring before the Claims Administrator claims for overcharges relating to rents that were set before the beginning of Class Period (July 11, 2004), or rents that were set by a prior owner. However, class members who participate in this lawsuit and do not opt out will- not be barred from seeking, and may commence or pursue, money damages for these claims in any other forum. Moreover, tenants who cannot bring any overcharge claims in this lawsuit may still bring any other type of claim (for harassment or otherwise) through the Claims Administration process. Tenants with cognizable harassment claims will be awarded the higher of their actual damages (with no limit) or (1) $500 if the Defendants’ conduct was minimal, (2) $1,000 if the Defendants’ conduct was “moderate,” and (3) $1,500 if the Defendants’ conduct was serious. These damages are available whether or not there is provable economic loss. Defendants have agreed to pay all costs incurred in the claims process for the Claims Administrator and administration. 2. Lease Audit. An independent Certified Public Accountant, appointed by the Court, will determine whether new rents set by Defendants between January 1, 2008 and April 27, 2010 are in compliance with applicable rent stabilization and rent control laws. The lease auditor will review a random sample of 25% of all new leases during this period. If the lease auditor determines that 15% or more of the selected sample is being overcharged by $10 or more per month, the auditor will review 100% of new leases from that time period. If the lease audit shows violations of applicable law resulting in overcharges, Defendants will (in addition to paying any damages that may be awarded by the Claims Administrator) adjust rents to legally permissible levels. Defendants have agreed to pay all costs associated with this audit. 3. “Best Practices”—Protocols Governing Pinnacle’s Relationship with its Tenants. The Settlement also provides equitable and systemic relief designed to ensure that current tenants living in all of Defendants’ properties enjoy habitable premises and receive fair treatment from their landlord in accordance with applicable New York State and New York City Rent Control and Rent Stabilization laws, as well as other New York housing laws. These compulsory practices are set forth in 13 pages of “protocols” that form part of the Settlement Agreement regarding: (1) setting and implementing initial rents and rent increases; (2) evaluating potential nonpayment and holdover proceedings; (3) recording and responding to requests for repairs and services; (4) providing a tenant helpline; and (5) training Defendants’ staff. Defendants will pay all costs necessary to staff a helpline, establish modern communication systems with tenants, and maintain electronic records of compliance with protocols required by the Settlement Agreement. The Claims Administrator will monitor Defendants’ compliance and will be empowered to award tenants damages through the claims administration procedure if Pinnacle fails to comply with the protocols. Upon the Court’s approval of the Settlement, an injunction will be entered that will remain in force for two years. If, during this period, Defendants demonstrate a pattern of material noncompliance with the Protocols or other terms of the Settlement Agreement, the Claims Administrator may impose remedies for such violations. Non-compliance shall be presumed willful. If the Claims Administrator certifies that such remedies as are available to her will be ineffective in enforcing compliance with the injunction, application may then be made to this Court to enforce the injunction, as well as for such other relief as the Court may deem appropriate. 4. Defendants Will Pay $2.5 Million for Legal Assistance to Effectuate the Terms of the Settlement. Up to $2,350,000 will be paid to the Legal Aid Society and Legal Services NYC (to be administered by the New York Bar Foundation) for legal and related assistance in implementing the terms of the Settlement Agreement. In addition, $150,000- will be paid to three community organizations for tenant assistance, including but not limited to, outreach and education of Pinnacle tenants regarding the terms of the Settlement Agreement. If funds remain after the two-year injunction period, the remainder will be distributed to nonprofit groups in New York City to assist tenants. 5. Agreement by Defendants to Pay Judicially Approved Legal Fees. Defendants have also agreed to provide up to $1.25 million for legal fees to Class Counsel, and up to $200,000 to reimburse Class Counsel for documented out of pocket expenses directly related to this case. 6. Agreement by Defendants to Assist in Eliminating Blacklisting. Finally, Defendants have agreed to procedures that should serve to eliminate and prevent “blacklisting” of Class Members by other landlords. If the Claims Administrator finds that a claimant was subject to a meritless eviction proceeding, Defendants will sign a stipulation agreeing to dismiss the underlying eviction proceeding, and will provide the tenant with a letter authorizing the tenant to deliver a copy of the stipulation to any tenant screening bureau or tenant reporting agency that has a record of the proceeding in its database, as well as to any prospective landlord of an apartment that the tenant proposes to rent. C. Subsequent Proceedings. On August 4, 2011, the Court entered an Order in aid of settlement (Dkt. 124) assigning the case to Magistrate Judge Ellis for the purpose, among others, of holding the Fairness Hearing and preparing a Report and Recommendation to the Court as to whether the Settlement should be finally approved in accordance with Rule 23(e)(3) of the Federal Rules of Civil Procedure. On August 11, 2011, the parties sought preliminary approval of the Settlement and the forms of notice to all Class Members. Judge Ellis preliminarily approved the Settlement Agreement at a hearing on August 17, 2011, finding that the Settlement met the test for preliminary approval. The Class Representatives (named Plaintiffs) vigorously opposed the proposed settlement. Judge Ellis concluded that the issues raised by the Class Representatives would be more appropriately addressed at the fairness hearing. (8/17/11 Tr. at 29:2-3, Dkt. 127.) Class Counsel provided potential Class Members with two notices describing the lawsuit, the Settlement, and the tenants’ right to request exclusion from the liability class. The long-form and short-form initial notices (collectively the “Initial Notices”) were approved by Magistrate Judge Ellis on August 31, 2011. (Dkt. 129.) The Initial Notices provided a 30-day opt out period that ended on October 7, 2011. On September 2, 2011, Class Counsel mailed the long-form notice to the last known addresses of all members of the classes from a list of potential Class Members provided by Pinnacle directly to Dahl Administration, LLC (the “Notice Administrator”). In addition, Pinnacle posted the short-form notices in each Pinnacle building. See Declaration of Adam Kaplan (“Pinnacle Decl.”) ¶ 7. At an extended hearing before both Judge Ellis and myself on October 28, 2011, in response to certain issues raised by Class Members, I concluded that a Revised Notice should be prepared and sent, in English and Spanish. I also determined that there should be posting of notice and other measures taken to get the word out, including placing advertisements in periodicals. The Revised Notice provided a 57-day opt out period that ended on March 2, 2012. This Court originally approved the form of the Revised Notice, in English and Spanish, on December 16, 2011 (Dkt. 165), and modified that ruling slightly on December 23, 2011 (Dkt. 170). On January 6, 2012, Class Counsel mailed approximately 22,000 Revised Notices to the last known addresses of all members of the classes from a list of potential Class Members provided by Pinnacle directly to the Notice Administrator. See Levy Decl. ¶ 40, 43. The same day, Class Counsel mailed over 100 “Opt In Letters” to Class Members who had previously opted out of the Settlement, advising them of their right to opt back in to the Settlement during the Revised Notice period. See Affidavit of Ruby Melendez (“Melendez Aff.”) ¶ 40. Pinnacle posted the Revised Notice in English and in Spanish in each Pinnacle building and provided the Revised Notice to new owners of former Pinnacle buildings with requests to post the notices. See Pinnacle Decl. ¶¶ 16-17. In addition to mailing and posting, a toll-free number was established to assist Class Members with questions concerning the Settlement and their opt out rights, and an informational website was established. See Levy Decl. ¶¶ 48-49. The toll-free number and the website address were referenced on the bottom of every page of the Notice and Revised Notice. Id. Finally, Class Counsel published the short-form notice in The New York Post and (in Spanish) in El Diaño. Id. ¶¶ 26-29. A team of Jenner & Block lawyers and personnel (including persons fluent in Spanish) provided responses to more than 1,000 telephone calls and approximately 100 email messages, website submissions, and letters from potential Class Members through March 12, 2012 (the “Calling Team”). See Declaration of Marisa K. Perry (“Perry Decl.”) ¶48. The Calling Team received training on the background of the lawsuit, and the terms, benefits, and tradeoffs of the Settlement. Id. ¶ 25. The Calling Team also received training from Andrew Scherer, consultant to Class Counsel and an expert in landlord/tenant law, on subjects related to rent-regulation and applicable state laws. Id. ¶ 26. Mr. Scherer provided guidance to the Calling Team throughout each of the notice periods. Id. In addition, at the request of several of the Class Representatives, a team of Jenner & Block lawyers, together with Mr. Scherer, appeared at an “Informational Seminar” on October 5, 2011. More than 200 persons attended that seminar, which continued for several hours. Levy Decl. ¶¶ 54-58. All questions were answered, in English or through simultaneous interpretation by a professional Spanish interpreter. Id. The Class Representatives organized another informational seminar for Pinnacle tenants on March 24, 2012. Id. ¶ 60. On March 3, 2012, one day after the opt out period expired, Class Counsel were advised by Ms. Kim Powell, a Class Representative, that it appeared that tenants in a former Pinnacle Building on West 109th Street had not received either the Initial Notices or the Revised Notices of the proposed settlement. Levy Decl. ¶ 45. That same day, Class Counsel transmitted this information to Defendants’ counsel, who, after investigation, advised that 3,915 tenants had accidently been omitted from the mailing lists they provided to the Notice Administrator. Id. On March 8, 2012, Defendants’ counsel, by letter to the Court, proposed that the opt out date for these omitted tenants be extended to a date 45 days after the mailing to the omitted tenants of a Supplemental Notice, together with the Revised Notice in English and Spanish, with the Court reserving final judgment and keeping the record open for the omitted tenants until such date. On March 9, 2012, the Court approved the proposal. (Dkt. 177.) The Supplemental Notice, in English and Spanish, together with the Revised Notice in English and Spanish, was mailed to the omitted tenants on March 13, 2012. Pinnacle Decl. ¶ 27; see also Levy Decl. ¶ 47. The Supplemental Notice specified an extended opt out and objection date of April 27, 2012 for the omitted tenants who had not received prior notice, as required by this Court’s order. See Pinnacle Decl. ¶ 27. A fairness hearing was held on April 12, 2012. One hundred and thirty-one purported objectors asked for permission to speak at the hearing, but most did not show up. Thirty-five Pinnacle tenants were allowed the opportunity to speak; nearly all spoke against approval of the Settlement. Not all of those who spoke had previously requested an opportunity to be heard, and some who spoke appeared not to be Class Members. Nonetheless, no one was turned away from the microphone, although time limits were imposed. The Court encouraged Class Members to submit additional statements in writing to chambers. The Court has received, and reviewed, ten such submissions, which were distributed to all counsel on May 1, 2012. D. Reaction to the Settlement. The final count of Class Member responses to the Settlement is as follows: • 56 letters supporting the Settlement; • 118 written objections to the settlement • 141 opt outs; • 5 opt ins from Class Members, during the revised notice period, who had previously opted out. Fewer than 1% of the Class Members to whom the Initial Notice, the Revised Notice and/or the Supplemental Notice were mailed opted out of the lawsuit, and an even smaller percentage of the class objected to the lawsuit. Nevertheless, there has been strident opposition to the Settlement from those who do object. First, On October 6, 2011, several individual Class Members (the “Objectors”), represented by counsel from the Northern Manhattan Improvement Corporation, the Urban Justice Center, and Yankwitt & McGuire LLP, brought an order to show cause, seeking to halt the original fairness hearing (scheduled for October 20, 2011), obtain discovery, and cancel the Class Notice plan. At a hearing on October 7, 2011, Judge Ellis denied the order to show cause without prejudice. Following that denial, a flurry of correspondence crossed my desk, which led to the joint hearing that is referred to above. At the October 28, 2011, hearing-during which Class Counsel, Defense Counsel, Objectors’ Counsel, and the named Plaintiffs spoke at length-I decided to withdraw the reference to Magistrate Judge Ellis and to hear and decide all matters relating to the settlement in the first instance. I also permitted new counsel to appear on behalf of the Objectors, and they have been involved in the settlement proceedings since that time. A critical objection was the fear that some tenants would lose their right to challenge alleged rent overcharges. In order to allow the Objectors to obtain factual support for their objection, I ordered an 18-building sample review ordered designed to reveal the percentage of Class Members who had signed their leases before July 11, 2004 or with a prior owner. As noted above, tenants meeting this description are not permitted, under the Settlement, to bring rent overcharge claims before the Claims Administrator, unless Pinnacle raised them rent by an illegal amount during the Class Period. However, they can bring a rent overcharge proceeding against a prior owner, or for a period outside the Class Period, in State court or other forum, subject to the statute of limitations. By another order to show cause, dated January 4, 2012, the Objectors moved for comprehensive discovery, including the full rent regulation history of every building Pinnacle owned during the Class Period. I denied the motion and order to show cause on January 12, 2012, finding that the 18 building sample previously ordered was enough to permit the Objectors to articulate them objections to the Settlement Agreement. (Dkt. 176.) I also observed that: I have defined the class in a particular way; I have specifically excluded from the scope of this litigation any claims that accrued prior to July 11, 2004, which is three years before the date the complaint was filed. The fairness of the settlement must relate to the resolution of claims that are actually before the court; I am not going to re-litigate the bounds of the case or of the class in the context of approving a settlement. Finally, the named plaintiffs, Class Representatives Marjorie Charron, Ted Charron, Andres Mares-Muro, Raymond Andrew Stahl-David and Kim Powell, do not support the Settlement and have asked the Court not to approve it. I heard from them at hearings held on October 28, 2011 and April 12, 2012. I have read their prehearing briefs in opposition to approval of the Settlement, and their post-hearing submissions too. I have carefully considered their objections in reaching my opinion, as detailed farther below. Although I expressed some concern whether the Class Representatives could remain the named plaintiffs notwithstanding their disagreement with Class Counsel, courts in the Second Circuit have long recognized that such disagreements do not require that a settlement be disapproved, and have not required that the objecting named plaintiffs be replaced. See, e.g., Maywalt v. Parker & Parsley Petroleum Co., 864 F.Supp. 1422, 1430 (S.D.N.Y.1994) (four of five named plaintiffs objected to settlement). Indeed, four Circuit Courts of Appeals have held that unanimous disapproval of the settlement by the named plaintiffs does not require that the court either refuse to accept the settlement or replace the named plaintiffs. See Flinn v. FMC Corp., 528 F.2d 1169, 1174 & n. 19 (4th Cir.1975); Kincade v. Gen. Tire and Rubber Co., 635 F.2d 501, 503-04 (5th Cir. 1981); Elliott v. Sperry Rand Corp., 680 F.2d 1225, 1226-27 (8th Cir.1982); Laskey v. Int’l Union, Etc. (UAW), 638 F.2d 954, 956 (6th Cir.1981). Class Counsel has not asked that the Class Representatives be replaced, and I see no need to do so. II. NOTICE OF THE PROPOSED SETTLEMENT MEETS THE REQUIREMENTS OF LAW A. Standard of Review. “The standard for the adequacy of a settlement notice in a class action under either the Due Process Clause or the Federal Rules is measured by reasonableness.” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 113-14 (2d Cir. 2005). There are no rigid rules for determining whether a settlement notice to the class satisfies constitutional or Rule 23(e) requirements; the settlement notice merely must “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.” Id. at 114 (quoting Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir.1982)). Courts in this Circuit have explained that a Rule 23 Notice will satisfy due process when it “describe[s] the terms of the settlement generally!,]” In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 60 (S.D.N.Y.1993), and “inform[s] the class about the allocation of attorneys’ fees, and provide[s] specific information regarding the date, time, and place of the final approval hearing[,]” Clark v. Ecolab Inc., Nos. 07 Civ. 8623, 04 Civ. 4488, and 06 Civ. 5672(PAC), 2009 WL 6615729, at *6, 2009 U.S. Dist. LEXIS 108736, at *22 (S.D.N.Y. Nov. 17, 2009). Notice is considered “adequate if it may be understood by the average class member.” Id. The Initial, Revised and Supplemental Notices in this case meet these requirements. In addition to providing a general summary of the terms of the Settlement and detailing tenants’ rights and options regarding the lawsuit, the notices detail the allocation of attorney’s fees and expenses, clarify that those attorney fee amounts will not affect the recovery of monetary benefits for Class Members through the claims process, and provide details regarding the fairness hearing including the date, time, and location. See Torres v. Gristede’s Operating Corp., Nos. 04-cv-3316, 08-cv-8531, and 08-CV-9627 (PAC), 2010 WL 5507892, at *7, 2010 U.S. Dist. LEXIS 139144, at *21 (S.D.N.Y. Dec. 21, 2010) (finding that notice complied with all constitutional requirements where it “adequately advised class members of the terms of the settlement, as well as the right of members of the class to opt out of the class, to object to the settlement, and to appear at the fairness hearing”). As detailed below, the Class Members have received multiple forms and rounds of notice of the Settlement in conformance with Fed.R.Civ.P. 23(e)(1). Class Counsel has complied with every requirement of Rule 23 and has added substantial material to clarify matters and to make the Initial and Revised Notices understandable for Class Members. B. The Notices Were Adequate 1. The Initial Notices. The adequacy of the Initial Notice (which had been approved by Magistrate Judge Ellis and mailed on September 2, 2011 with an opt out date of October 7, 2011) was first raised by the Objectors in a “Show Cause” order one day before the expiration of the 30 day opt out period in the original Notice. (Dkt. 137.) By Order dated October 11, 2011 (Dkt. 138), I stayed all deadlines in this case and set a status hearing for October 28, 2011. At the October 28 hearing, after reviewing the Objectors’ papers and objections, I found the Initial Notice to be “very, very straightforward” and written in “plain English.” (10/28/11 Tr. at 32:3—4.) I noted that the Initial Notice was “not a document that’s full of legalese” and that “[c]are was taken here to make this document comprehensible to the average person.” (Id. at 39:12-15.) Overruling objections that the Initial Notice was too technical, this Court stated that “I don’t see how [the Initial Notice] can be less technical and still be complete and informative.” (Id. at 39:16-18.) Nevertheless, after hearing from all parties, including the five Class Representatives, I directed that certain changes be made to improve the Initial Notice (including the translation of the long-form notice into Spanish), and suggested (but did not require) that Class Counsel make other changes that had been offered by the Objectors and Class Representatives. 2. The Revised Notice. Following the October 28, 2011 Hearing, the Court entered an Order directing that the original notice “be amended to”: (a) Identify the buildings that are involved in this litigation (at least by address); (b) Include information from the recently amended settlement agreement that clarified that class members whose rents were set by other landlords or were set by Pinnacle prior to 2004, could not pursue rent overcharge claims through the Settlement Administrative Process, but were free to assert such claims in any other forum; and (c) Be sent in both English and Spanish. (11/1/11 Order at 1, Dkt. 146.) The Order also: • mandated that the Revised Notice be “posted in its entirety in English and Spanish in each building;” • authorized “Marjorie Charron ... [to] check compliance and report to Mr. Levy and the Court if there is a problem;” • imposed a 45-day period from the mailing of the Revised Notice for filing objections and opting out of the lawsuit; and • required that Defendants perform a hand inspection of a random selection of buildings to determine the percentage of Class Members who signed their leases before July 11, 2004 and who signed their lease before Pinnacle purchased the building. Class Counsel incorporated all of the required changes set forth above into a Revised Notice. In addition, a number of changes that were suggested, but not mandated, by the Court were incorporated into the Revised Notice. With respect to the Spanish translation, Class Counsel incorporated every suggestion from the Objectors and the Class Representatives, both of whom agreed that the translation was in appropriate colloquial Spanish. On November 22, 2011, the Court entered an Order overruling objections to the Revised Form of Notice from both the Class Representatives and the Objectors. (Dkt. 156.) The Order generally approved the form proposed by Class Counsel. On December 23, 2011, the Court entered an Amended Order Directing Revised Notice to Potential Class Members and Setting Schedule for Fairness Hearing. (Dkt. 170.) On January 4, 2012, the Objectors filed a second order to show cause seeking the same discovery from Defendants that the Court had previously denied. They alleged that the requested discovery was required “on due process” grounds. (Dkt. 127.) In a January 12, 2012 Order, I Court reaffirmed my previous finding that the Revised Notice met due process standards, saying: I am also not inclined to revisit my prior order concerning notice, and I believe that the order that I have already authorized, indeed directed, more than complies with the rights of the members of the class. I thus decline the request that the objector’s counsel be provided with the discovery they seek on “due process” grounds. (Dkt. 176 (emphasis added).) 3. Class Members Had a Total of 89 Days to Opt Out and 115 Days to Object to the Settlement. Through the two Notice periods, Class Members had a total of 89 days during which they could exercise their rights to participate in or opt out of the Settlement, and a total of 115 days to submit written objections to the Court. The initial notice period lasted 32 days, from September 6, 2011 to October 7, 2011 (including October 7, 2011). The revised notice period lasted 57 days, from January 6, 2012 to March 2, 2012 (including March 2, 2012). Class Members who wished to object to the Settlement were given a total of 115 days to do so (32 days in the initial notice period plus 83 days (from January 6, 2012 to March 28, 2012) during the revised notice period). Courts have held that opt out periods of less than 45 days satisfy due process, even where unsophisticated class members must make decisions regarding complex issues of law or fact. See, e.g., In re Marsh & McLennan Cos., Inc. Sec. Litig., No. 04 Civ. 8144(CM), 2009 WL 5178546, at *13, 2009 U.S. Dist. LEXIS 120953, at *40 (S.D.N.Y. Dec. 23, 2009) (approving a precertification settlement with a 30-day opt out period in a complex securities fraud class action case); Rowe v. E.I. du Pont de Nemours & Co., Civil Nos. 06-1810 and 06-3080 (RMB/AMD), 2011 WL 3837106, at *7, 2011 U.S. Dist. LEXIS 96450, at *25 (D.N.J. Aug. 26, 2011) (approving thirty-five day opt out period for class action settlement of water pollution claims over the objection of intervenors who claimed that longer notice was required because the “issues involved in the settlement are complex, thereby demanding highly specialized, scientific knowledge”). The 89-day period for opting out here is far longer than the 35-day period in Rowe or the 30-day period in Marsh, and is more than sufficient to protect Class Members’ due process rights. Additionally, all opt out requests received between September 6, 2011—the mailing date of the initial notice—and March 2, 2012—the opt out deadline in the Revised Notice—will be honored. A few opt out requests were postmarked after the original October 7, 2011, deadline and normally would not have been considered timely. Given the unique procedural history of this case, however, and the fact that this Court stayed all deadlines (10/11/11 Order, Dkt. 138), the October 7, 2011, initial opt out deadline became moot, and the opt out period effectively lasted from September 6, 2011, to and including March 2, 2012, or 179 days. Thus, the Notice Program in this action complied with the orders of this Court, the Due Process Clause, and the Federal Rules. Both this Court and Magistrate Judge Ellis have considered the arguments raised by those who oppose the Settlement and concluded that they do not have merit. The notices meet all Constitutional and Rule 23(e) standards. III. THE PROPOSED SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE. The law favors compromise and settlement of class action suits. Wal-Mart Stores, 396 F.3d at 116 (2d Cir.2005) (noting the “strong judicial policy in favor of settlements, particularly in the class action context”) (quoting In re Paine-Webber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir.1998)) (internal quotation marks omitted); see also Alba Conte & Herbert Newberg, 4 Newberg on Class Actions § 11.41 (4th ed. 2002) (“The compromise of complex litigation is encouraged by the courts and favored by public policy.”). Approval of a proposed class action settlement is within the discretion of the district court. Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.2000). Before granting final approval of a class action settlement, a reviewing court must find that the settlement is procedurally and substantively fair, reasonable, and adequate. Fed. R.Civ.P. 23(e)(1). A. Procedural Fairness. To demonstrate that a settlement is procedurally fair, its proponents bear the burden of showing: (1) that the settlement was reached through arm’s-length negotiation and is not collusive; (2) that the proponents are counsel experienced in similar cases; (3) that there has been sufficient discovery to enable counsel to act intelligently; and (4) that the number of objectors or their relative interest is small. In re McDonnell Douglas Equip. Leasing Sec. Litig., 838 F.Supp. 729, 737 (S.D.N.Y. 1993). That burden has been more than met here. 1. The Settlement is the Product of Arm’s-Length Negotiations. As detailed above, every aspect of the proceedings, from discovery and motion practice through completion of the settlement negotiations, has been vigorously contested. The arm’s-length settlement negotiations, lasting approximately eight months, involved counsel and an experienced mediator, Judge Ellis, whose oversight of earlier proceedings made him fully familiar with the details of the case. There is no evidence of collusion between the parties. Levy Deck ¶ 7. These facts raise a presumption that the Settlement satisfies due process requirements. See Prasker v. Asia Five Eight LLC, 08 Civ. 5811(MGC), 2010 WL 476009, at *3-4, 2010 U.S. Dist. LEXIS 1445, at *10 (S.D.N.Y. Jan. 6, 2010). 2. Proponents are Experienced Counsel. As recognized in this Court’s Certification Order, Class Counsel are “qualified, experienced and more than able to conduct this litigation, no matter how complieated[.]” (Certification Order, 269 F.R.D. at 234.) Mr. Levy’s declaration attesting to his extensive experience with complex litigation, class actions, corporate reorganization, debt restructuring, commercial and bankruptcy litigation, bank regulation, and corporate transactions and governance is attached to the Motion for Attorneys’ Fees which was initially filed on September 2, 2011. (Dkt. 126.) Recommendations of experienced counsel are entitled to great weight in evaluating a proposed settlement in a class action because such counsel are most closely acquainted with the facts of the underlying litigation. See In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104,125 (S.D.N.Y.1997). Class Counsel supports the proposed Settlement and believes that it is in the best interests of the tenant classes. Although Mr. Levy does not boast personal experience with the New York City rent statutes and regulations, often described as “an impenetrable thicket, confusing not only to laymen but to lawyers,” Roberts v. Tishman Speyer Properties, L.P., 13 N.Y.3d 270, 295, 890 N.Y.S.2d 388, 918 N.E.2d 900 (2009) (Read, J., dissenting) (citation omitted), Class Counsel retained Andrew Scherer, an expert in the field, to assist. Mr. Levy’s legal acumen and professional experience, particularly when combined with Mr. Scherer’s expertise, weigh in favor of approving the Settlement. 3. There Has Been Sufficient Discovery to Enable Counsel to Act Intelligently. Before filing this lawsuit, Class Counsel undertook a comprehensive pre-suit investigation lasting over a year. The pre-suit investigation in this case far exceeded what is customary in the class action lawsuits I usually see. Counsel spoke with tenants, reviewed tenant documents, and researched potential claims. After filing the lawsuit, Class Counsel and Defendants engaged in certification discovery involving the exchange of documents and several depositions, and extensive motion practice involving the strength and weaknesses of the claims in the SAC. Additional merits discovery will do little to help Class Counsel “act intelligently” regarding the Settlement. Defendants have agreed, as part of the Settlement, to pay whatever amounts the Claims Administrator tells them to pay, without any caps on actual damages, and with no chance for appeal. Contrary to the contention of some Class Members, there is no need for additional discovery about Pinnacle’s “ill-gotten gains.” Disgorgement is unavailable to the Plaintiffs as a remedy for Defendants’ RICO violations, unless it serves solely to prevent and restrain future RICO violations. See United States v. Sasso, 215 F.3d 283, 289-92 (2d Cir.2000); United States v. Carson, 52 F.3d 1173, 1182 (2d Cir.1995), overruled on other grounds by Pegram v. Herdrich, 530 U.S. 211, 225, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). Here, that purpose is achieved through a series of protocols that will govern Pinnacle’s relationships with its tenants, and a two-year injunction against violations of those protocols and state and federal laws. And punitive damages are not available under any circumstances as a remedy for Plaintiffs’ RICO claims. See Bingham v. Zolt, 823 F.Supp. 1126, 1135 (S.D.N.Y.1993) (“RICO’s treble damages provision precludes recovery of punitive damages.”). Although further merits discovery might have allowed Class Counsel to assess the risks of continuing with litigation even more thoroughly than has already been done, that is true in every case that settles before discovery concludes. And in this case, the most significant litigation risk may not be establishing liability under RICO; it is the very real possibility that the liability class will be decertified in the wake of the Supreme Court’s decision in Wal-Mart v. Dukes. Were that to happen, the Class Members would be forced to proceed individually against a sophisticated and well-financed adversary. So while the parties have not engaged in full merits discovery, I believe that discovery has proceeded far enough for Class Counsel to evaluate the relative benefits of Settlement against the risk of continued litigation, and to reach an intelligent decision regarding the desirability of settlement. 4. The Number of Objectors is Small. As of April 12, 2012, only 118 Class Members filed objections-less than 1% of the Class. For all these reasons, the Settlement is entitled to an initial presumption of fairness, reasonableness, and adequacy. See Wal-Mart Stores, 396 F.3d at 116. B. Substantive Fairness: The Grinnell Factors Demonstrate That the Settlement is Substantively Fair, Reasonable, and Adequate, and Weigh in Favor of Approval. In the Second Circuit, courts look to a non-exhaustive list of factors set forth in Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), and more recently applied in Wal-Mart Stores, 396 F.3d at 116, when considering whether a proposed class action settlement, on substantive grounds, is fair, reasonable, and adequate. The Grinnell factors are: (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 action 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. Grinnell, 495 F.2d at 463. On balance, the Grinnell factors weigh heavily in favor of final approval of the Settlement Agreement. 1. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1). This Court has noted that where a settlement results in “substantial and tangible present recovery, without the attendant risk and delay of trial,” the first factor weighs in favor of settlement. In re Am. Bank Note Holographies, Inc., 127 F.Supp.2d 418, 425 (S.D.N.Y.2001); see also Slomovics v. All for a Dollar, Inc., 906 F.Supp. 146, 149 (E.D.N.Y.1995). The path from this stage of the litigation to a final judgment on the issue of Defendants’ liability for violation of the RICO statutes and the New York Consumer Protection Act would be long, complicated, and expensive. As this Court has explained: “It could be ten years from now before you get anything if everybody goes after everything that he wants.” (10/28/11 Tr. at 15:1-3, Dkt. 154.) Notwithstanding the strength of the evidence Plaintiffs elicited during the pre-suit investigation and discovery, additional discovery would be required to establish liability and damages, including depositions of Class Members, Defendants, and Defendants’ employees, managers, and partners. A fact-intensive trial would be necessary, and while the Class Members are sure they will win, they might in fact lose. Preparing and putting on evidence at such a trial would consume tremendous amounts of time and resources and demand substantial judicial resources. Plus, only certain issues would be tried. In particular, damages to the individual Class Members would not be awarded; those would require additional trials, which would be costly and further defer closure. Establishing a mechanism for adjudicating causation and damages will present many of the difficulties that the Claims Administration Process redresses. Thus, if the Settlement is denied, individual Class Members could find themselves in approximately the same position as if it were approved, except that time, resources, and effort would have been bled out of both sides along the way. Finally, post-trial motions and appeal would delay resolution and increase costs still more. By obtaining prompt approval of this Settlement as fair, reasonable and adequate prior to decertification motions, summary judgment proceedings or trial, Class Members will avoid significant expense and delay and ensure a speedy, risk-free recovery for the class. Even if the class remained certified—by no means a certainty given recent Supreme Court decisions—going to trial puts Class Members in a worse—not better— position relative to the Settlement. Significantly, Plaintiffs’ suit was intended, not only to obtain redress for injuries, but to restrain and prevent Defendants from engaging in practices that may adversely affect the Class Members in the future. The Settlement Agreement achieves this significant goal, by requiring that Defendants adhere to a set of protocols and implementing a monitoring system, with compliance insured by a two-year injunction. Plaintiffs’ suit has also resulted in Defendants agreeing to an audit of certain leases. 2. The Reaction of the Class as a Whole Supports Approval (Grinnell Factor 2). In class action settlements, the notice and approval process generally solicits negative feedback regarding a settlement, because it is designed to solicit opt outs and objections by advising class members of the procedures and deadlines for filing such responses with the court. “A certain number of opt outs and objections are to be expected in a class action,” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 527 (E.D.Mich.2003), and in litigation involving a large class, such as that here, “it would be ‘extremely unusual’ not to encounter objections.” In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 478 (S.D.N.Y.1998). Statements of support are not similarly solicited, but nevertheless, Class Counsel received 56 unsolicited letters of support. Over 22,000 Revised Notices were mailed on January 6, 2012. Almost 4,000 more were mailed to the Omitted Tenants in March. The deadline for opt outs passed on March 2, 2012 and April 27, 2012, for Omitted Tenants. As of April 27, 2012, including all submissions from the Initial and Revised Notice periods, Class Counsel received: • 56 letters supporting the Settlement; • 118 objections to the Settlement; • 141 opt outs; and • 5 opt ins from persons who had previously opted out. In sum, fewer than 1% of the tenants who received notice opted out of the lawsuit, and an even smaller percentage objected. In addition, the Jenner & Block employees who responded to more than 1,000 phone calls and over 100 website and Post Office box submissions report that many of the persons reaching out for assistance were supportive of the Settlement and intend to participate in the claims process. See Perry Decl. ¶¶ 49-53; Melendez Aff. ¶¶ 34-37. “That the overwhelming majority of class members have elected to remain in the Settlement Class, without objection, constitutes the ‘reaction of the class,’ as a whole,” and supports a finding that “the Settlement is ‘fair, reasonable, and adequate.’ ” In re Cardizem CD Antitrust Litig., 218 F.R.D. at 527. Courts in this circuit have regularly approved settlements even where substantial portions of the class have objected. See, e.g., County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1325 (2d Cir.1990) (affirming approval of settlement over objections of “a majority” of class); TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 462 (2d Cir.1982) (affirming approval of settlement where between 54 and 58 percent of class objected). This factor therefore weighs in favor of final approval. The Court acknowledges, as it must, the strenuous opposition so eloquently expressed by the Class Representatives, as well as more than thirty Pinnacle tenants who spoke against the Settlement at the April 12, 2012 Fairness Hearing. Their concerns, which are legitimate, are discussed at greater length below. However passionately the Class Representatives object, and however sympathetic the individual situations of the objecting Class Members, those who have opposed or objected to the Settlement represent a tiny fraction of the approximately 26,000 tenants to whom notice was mailed. Great efforts were made over more than six months to educate those tenants about the pros and cons of the Settlement, in phone calls, public meetings, and otherwise. The Court cannot help but conclude that the silence and acquiescence of 99% of the Class Members speaks more loudly in favor of approval than the strident objections of the 1% against it. 3. The Proceedings and Discovery Have Advanced Far Enough to Allow the Parties to Responsibly Resolve the Case (Grinnell Factor 3). This factor requires the Court to consider whether the parties have adequate information about their claims. See In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 458 (S.D.N.Y.2004). Although settlement agreements reached before class certification are subject to additional scrutiny, see D'Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.2001), no such scrutiny is required here, since the Settlement was reached after the classes were certified. See Dupler v. Costco Wholesale Corp., 705 F.Supp.2d 231, 240 n. 6 (E.D.N.Y.2010). The parties here have enough information about their claims. The pretrial negotiations, motion practice, and certification discovery were not designed to justify a settlement, but were rather “an aggressive effort to ferret out facts helpful to the prosecution of the suit.” See In re Austrian & German Bank Holocaust Litig., 80 F.Supp.2d 164, 176 (S.D.N.Y.2000) (quoting Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y.1998)) (internal quotation marks omitted). And as discussed above, one primary litigation risk (if not the primary risk) if the Settlement is that the classes in this case would need to be decertified in light of intervening controlling precedent. If that risk eventuates, the Class Members will get nothing for their RICO claims except what they can individually prove after retaining and paying for their own counsel. No discovery is needed for counsel to “understand” what that entails. Additional damages discovery is unnecessary, because Pinnacle’s liability to individuals, and the Class as a whole, for rent overcharges and other money claims is not subject to any cap, except what the Class Member can prove. Everyone who establishes a claim will receive the amount awarded by the Claims Administrator. Class Representatives argue that discovery has been insufficient to establish that Defendants can pay all the damages that have been awarded. Defendants have presented information to the Magistrate Judge for in camera review, and to Class Counsel on an attorneys’ eyes only basis, and both Judge Ellis and Class Counsel believe that Defendants have an annual income and net worth sufficient to meet their potential liabilities under this Agreement. In the hearing before Judge Ellis, Mr. Levy—after meeting in chambers with Judge Ellis, Mr. Wiener, and Mr. Wiener’s counsel and examining Pinnacle’s sworn financial statements—stated: “I conclude that the assets appear, based on that financial statement, to be sufficient to satisfy any liabilities that may be awarded as we move forward.” (8/17/11 Tr. at 11:14-16, Dkt. 127.) Pinnacle’s financial statements included representations and warranties as to their accuracy and completeness in a form that would be accepted by federally insured banks for the purpose of obtaining credit. Were those representations to prove fraudulent, that would give rise to an independent cause of action, which the Settlement would not bar. The Objectors argue that Class Counsel should have forced Pinnacle to open its books so that the full extent of its malfeasance could be exposed. However, while such discovery might embarrass Pinnacle, and gratify the tenant activists, it would not do anything to help the Class Members were the case to proceed. As discussed above, the Class Members would not be entitled to disgorgement of “ill-gotten gains” if they litigated the RICO claim to victory, as numerous other mechanisms, including injunctive relief and treble damages, would be in place to restrain future RICO violations. So learning the extent of Pinnacle’s ill-gotten gains would not “raise the stakes” for the parties. 4. The Risks of Establishing Liability and Damages are Significant (Grinnell Factors I and 5). Class Counsel believes that Plaintiffs have a strong case, both under the civil RICO statute and under the NYCPA. However, “Litigation inherently involves risks.” In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. at 126. Defendants deny any wrongdoing whatever. They contend that they have complied with all applicable State and Federal laws. Establishing otherwise will require considerable additional pre-trial effort and a lengthy trial, the outcome of which is uncertain. Even if I were to assume that the plaintiff class was likely to succeed on the merits of a liability trial, I would have to weigh that likelihood against the certainty that the class was going to receive the following benefits: a simplified claims process for establishing rent overcharges and harassment claims against Pinnacle, with Pinnacle agreeing not to contest liability and no possibility that Pinnacle could appeal any adverse finding by the Claims Administrator; establishment of a set of Best Practices for the management of Pinnacle’s buildings on a going-forward basis, and an audit of leases that conceivably could lead to a correction of illegal base rents for thousands of Pinnacle tenants. Add to this the fact that each individual plaintiff would have to prove his or her own damages whether the case settled or not; this Court has always contemplated decertification after a liability trial, see Charron v. Pinnacle Group N.Y. LLC, 269 F.R.D. 221, 243 (S.D.N.Y.2010). With a settlement the tenants will not have to wait years to present their rent relief and other claims to an adjudicator, but can have those claims heard within the next twenty-four months, so the benefit of settling, rather than running the litigation risk, is clear. 5. Establishing a Class and Maintaining It Through Trial (Grinnell Factor 6). This case presents complicated class certification issues. Plaintiffs obtained class certification for two classes—a Liability class and an Injunction class—on April 27, 2010. Given Defendants’ vigorous motion practice in this case, a motion to decertify is a virtual certainty, see Levy Decl. ¶ 8, particularly in light of the Supreme Court’s recent decision in Dukes, 131 S.Ct. 2541 (2011). Dukes changed the state of play hugely. As this Court noted, “If the settlement is not approved[, t]here will be a motion under the new Supreme Court precedents to decertify the class and everybody can go on his own individual way.” (10/28/11 Tr. at 18:14-17, Dkt. 154.) While Plaintiffs believe that any such motion would not succeed, I am far from confident that they are correct. Whatever the risks, the prospect of decertification adds considerable uncertainty as to whether the Class could be maintained through trial. Furthermore, as noted about, this Court long ago discounted the possibility that the damages phase of the case could be litigated as a class action. It is well-settled in the Second Circuit that, in approving a class settlement, a court must take into consideration the specter of class decertification. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), abrogated on other grounds, Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000). The Court considers the risk of decertification in the context of Grinnell factor number six: “the risks of maintaining the class action through the trial.” Id.; In re Flag Telecom Holdings, Ltd. Sec. Litig., No. 02-cv-3400 (CM)(PED), 2010 WL 4537550, at *14 (S.D.N.Y. Nov. 8, 2010). The stronger the possibility of decertification, the more that factor weighs in favor of approving the settlement. See id. Dukes increases the risk that the classes here might be decertified. McDonough v. Toys “R” Us, Inc., 834 F.Supp.2d 329, 338 (E.D.Pa.2011) (“relatively recent higher court opinions are still being interpreted and therefore present a challenge to class counsel and increase the likelihood of unfavorable appellate review ... therefore this [risk of maintaining the class action through trial] factor weighs in favor of the settlement”). This factor therefore weighs in favor of final approval of the Settlement. A number of courts have considered the increased risk of decertification in their settlement analyses post -Dukes. See, e.g., Ebbert v. Nassau County, No. 05-cv-5445