In Re Bank of America

13-1573-(L)
In re Bank of America

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
_____________________

August Term, 2013

(Argued: April 22, 2014 Decided: November 5, 2014)

Docket No. 13-1573(L), 13-1677(con), 13-1798(con), 13-1830(con), 13-1853(con)
_____________________

IN RE BANK OF AMERICA CORP. SECURITIES, DERIVATIVE, AND EMPLOYEE
RETIREMENT INCOME SECURITY ACT (ERISA) LITIGATION
-------------------------------

MICHAEL WASHENIK, ORLOFF FAMILY TRUST DTD 10/3/91, ORLOFF FAMILY TRUST DTD
12/31/01, ST. STEPHEN, INC., LEONARD MASIOWSKI, MARYANN MASIOWSKI, MICHAEL J. RINIS,
BABETTE RINIS, MICHAEL J. RINIS, IRA,1

Objectors–Appellants,

CHARLES N. DORNFEST,2

Plaintiff,

V.

PUBLIC PENSION FUNDS, THE PUBLIC PENSION FUND GROUP,
STEVEN J. SKLAR, AS (IRA ACCOUNT BENEFICIARY), ON BEHALF OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED, RHONDA WILSON, ALMA ALVAREZ, MICHAEL R. BAHNMAIER, MARK
ADAMS, ELIZABETH EAGEN, VERNON C. DAILEY, RICHARD ADAME, ARLENE KAHN, PETRA
CHATMAN, STICHTING PENSIOENFONDS ABP, GRANT MITCHELL, NEW YORK STATE TEACHERS’
RETIREMENT SYSTEM, PUBLIC EMPLOYEES’ RETIREMENT ASSOCIATION OF COLORADO, STEVE R.
GRABER, INDIVIDUALLY, AS ASSIGNEE OF CLAIMS OF THE SRG 2008 TRUST, SCHWAB SP500
INDEX FUND, SCHWAB 1000 INDEX FUND, SCHWAB INSTITUTIONAL SELECT SP500 FUND,
SCHWAB DIVIDEND EQUITY FUND, SCHWAB CORE EQUITY FUND, SCHWAB PREMIER EQUITY
FUND, SCHWAB FUNDAMENTAL US LARGE COMPANY INDEX FUND, SCHWAB TOTAL STOCK
MARKET INDEX FUND, SCHWAB SP500 INDEX PORTFOLIO, SCHWAB MARKETTRACK GROWTH

1
By stipulation filed on April 17, 2014, objectors-appellants AMP Capital Investors Limited, Colonial First State
Investments Ltd, and H.E.S.T. Australia Ltd have agreed with defendants–appellees to withdraw their appeal in
Docket No. 13-1573.
2
By stipulation filed on October 24, 2013, plaintiff Charles Dornfest agreed with defendants–appellees to withdraw
his appeal in Docket No. 13-1677.
 PORTFOLIO, SCHWAB MARKETTRACK BALANCED PORTFOLIO, SCHWAB INVESTMENTS, SCHWAB
CAPITAL TRUST, DR. SALOMON MELGEN, FLOR MELGEN, SFM HOLDINGS LIMITED PARTNERSHIP,
INTERNATIONAL FUND MANAGEMENT S.A., DEKA INTERNATIONAL S.A. LUXEMBURG, DEKA
INVESTMENT GMBH, DI, AARON KATZ, JOEL KATZ, SYLVIA WEISSMANN, PARKER FAMILY
INVESTMENTS L.L.C., JEFFREY R. PARKER, THE 1997 JEFFREY R. PARKER FAMILY TRUST, DREW
E. PARKER, THE 1994 DREW E. PARKER FAMILY TRUST, KEITH D. PARKER, JULIE M. SORIN, THE
1991 JEFFREY R. PARKER FAMILY TRUST, THE 1994 JULIE P. MANTELL FAMILY TRUST, MICHAEL
A. PARKER, MARK D. WENDER, ELLIOT WENDER, PENINA WENDER, STANLEY L. WENDER,
RAZELLE M. WENDER, JILL W. GOLDSTEIN, JERRY E. FINGER, AMBASSADOR LIFE INSURANCE
COMPANY, SELECT INVESTORS EXCHANGE FUND, L.P., RICHARD FINGER, JEF FAMILY TRUST,
1976 REAL ESTATE TRUST, WALTER FINGER, THE JERRY E. FINGER FAMILY TRUST D/T/D
12/28/1989, THE JERRY E. FINGER FAMILY TRUST, LEO R. JALENAK, PEGGY E. JALENAK, KERS &
CO., ROBERT GEGNAS, 198 LOCHA DRIVE, JUPITER, FL 334587752, STEVEN L. SHAPIRO, HARVEY
M. MITNICK, NATHAN A. FRIEDMAN, BONNIE FRIEDMAN, KENNETH A. CIULLO, JOANNA CIULLO,
THOMAS P. DINAPOLI, COMPTROLLER OF THE STATE OF NEW YORK, AS ADMINISTRATIVE HEAD
OF THE NEW YORK STATE AND LOCAL RETIREMENT SYSTEMS AND AS SOLE TRUSTEE OF THE NEW
YORK STATE COMMON RETIREMENT FUND, SCHWAB FINANCIAL SERVICES FUND,

Plaintiffs–Appellees,

V.

BANK OF AMERICA CORP., GARY A. CARLIN, NELSON CHAI, KENNETH D. LEWIS, JOHN A. THAIN,
FRANK P. BRAMBLE, SR., WILLIAM BARNET, III, JOHN T. COLLINS, GARY L. COUNTRYMAN,
TOMMY R. FRANKS, CHARLES K. GIFFORD, MONICA C. LOZANO, WALTER E. MASSEY, THOMAS J.
MAY, PATRICIA E. MITCHELL, THOMAS M. RYAN, MEREDITH R. SPANGLER, ROBERT L. TILLMAN,
JACKIE M. WARD, NEIL A. COTTY, JOE L. PRICE, BANC OF AMERICA SECURITIES L.L.C., MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BANK OF AMERICA, J. STEELE ALPHIN, AMY
WOODS BRINKLEY, BARBARA J. DESOER, LIAM E. MCGEE, TIMOTHY J. MAYOPOULOS, BRIAN T.
MOYNIHAN, BRUCE L. HAMMONDS, RICHARD K. STRUTHERS, BANK OF AMERICA CORPORATION
CORPORATE BENEFITS COMMITTEE DEFENDANTS, BANK OF AMERICA COMPENSATION AND
BENEFITS COMMITTEE DEFENDANTS, KEITH T. BANKS, TERESA BRENNER, CAROL T. CHRIST,
ARMANDO M. CODINA, VIRGIS W. COLBERT, GREGORY CURL, JOHN D. FINNEGAN, GREGORY
FLEMING, FOX-PITT KELTON COCHRAN CARONIA WALLER (USA) L.L.C., J.C. FLOWERS & CO.,
L.L.C., JUDITH MAYHEW JONAS, AULANA L. PETERS, JOSEPH W. PRUEHER, ANN N. REESE,
MICHAEL ROSS, CHARLES O. ROSSOTTI, PETER STINGI, THOMAS K. MONTAG, KENNETH D. DAVIS,
MARTIN I. FINEBERG, KENNETH A. LEWIS, MERRILL LYNCH & CO., INC., 4 WORLD FINANCIAL
CENTER3, NEW YORK, NY 10080, BANK OF AMERICA CORPORATION, 100 N. TRYON STREET,
CHARLOTTE, NC 28255, JOSEPH L. PRICE, JEREMY FINEBERG, O. TEMPLE SLOAN, JR.,

Defendants–Appellees,

PETER KRAUS,

Defendant.

3
Clerk is kindly asked to amend the caption as reflected above from “cneter” to “center.”
2
 _______________________

Before: WINTER, PARKER, AND HALL, Circuit Judges.
_______________________

Appeal from the United States District Court for the Southern District of New York
(Castel, J.) approving the final settlement of a class action lawsuit brought against defendants.
Objectors-appellants challenge the district court’s approval, including the distribution of funds
under the settlement and the award of attorneys’ fees. We AFFIRM the district court’s approval
of the final settlement.
_______________________

FOR APPELLANTS: STEVE A. MILLER, Steve A. Miller, P.C., Denver,
Colorado, for Objector-Appellant Michael
Washenik.

N. ALBERT BACHARACH, JR., N. Albert Bacharach,
Jr., PA, Gainesville, Florida, for Objectors-
Appellants Leonard Masiowski, MaryAnn
Masiowski, Michael J. Rinis, Babette Rinis; and
Michael J. Rinis, IRA.

FOR APPELLEES: ROBERT N. KAPLAN, Kaplan Fox & Kilsheimer LLP,
New York, New York, (Steven B. Singer, John J.
Rizio-Hamilton, Bernstein Litowitz Berger &
Grossman LLP, New York, New York; David
Kessler, Sharan Nirmul, Kessler Topaz Meltzer &
Check LLP, Radnor, Pennsylvania; Frederic S. Fox,
Kaplan Fox & Kilsheimer LLP, New York, New
York, on the brief) for Plaintiffs-Appellees Public
Pension Funds and Grant Mitchell.

DANIEL J. KRAMER, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, New York, (Brad S.
Karp, Audra J. Soloway, Paul, Weiss, Rifkind,
Wharton & Garrison LLP, New York, New York;
Mitchell A. Lowenthal, Lewis J. Limin, Cleary
Gottlieb Steen & Hamilton LLP, New York, New
York; Julia Guttman, Baker Botts LLP, Washington
D.C.; Colby A. Smith, Debevoise & Plimpton LLP,
Washington D.C.; Adam S. Hakki, Shearman &
Sterling LLP, New York, New York, on the brief)
for Defendants-Appellees.
____________________________________________________

3
PER CURIAM:

In this appeal, we consider several challenges to the district court’s approval of a

settlement agreement between representative plaintiffs and the defendant Bank of America in a

class action lawsuit alleging violations of the Securities Act of 1933, 15 U.S.C. § 77a et seq., and

the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. The underlying litigation traces its

origins to Bank of America’s negotiations with Merrill Lynch in the Fall of 2008, which

culminated in the two financial institutions merging in January 2009. Holders of Bank of

America stock and derivative options brought claims against Bank of America when it was

discovered that senior officers at the Bank had withheld information leading up to the

shareholder vote on the merger—information that included Merrill Lynch’s losses of more than

$20 billion in the final quarter of 2008 and agreements regarding bonuses orchestrated by the

two financial institutions in anticipation of the merger. he district court consolidated these

claims and named lead plaintiffs to pursue the actions on behalf of the larger class in

conformance with the Private Securities Litigation Reform Act, 15 U.S.C. § 78u–4(a)(3)(B)(i).

Before trial commenced, the parties negotiated a settlement agreement. Pursuant to Federal Rule

of Civil Procedure 23(e), the district court approved the notice of the settlement to class

members. After that notice issued, certain nonnamed class members objected to the settlement.

We address these objections.4

4
Appellees have challenged whether certain objectors-appellants demonstrated in the district court proceedings an
interest as members of the certified class such that they may maintain the present appeal. An objector-appellant
must demonstrate his or her status as a class member in order to raise an objection in the district court and
subsequently be considered a party for purposes of Rule 3 of the Federal Rules of Appellate Procedure. See Fed. R.
App. Pro. 3(c); cf. Devlin v. Scardelletti, 536 U.S. 1, 14 (2002) (“[N]onnamed class members . . . who have objected
in a timely manner to approval of the settlement at the fairness hearing have the power to bring an appeal without
first intervening.”). The notice of the settlement approved by the district court provided as much. See J. App’x at
750 (requiring objectors to be “a Class Member [who] did not previously submit a request for exclusion in
connection with the Class Notice”). For purposes of resolving the issues raised in this appeal, however, we need not
address whether those objectors-appellants are proper parties. They have articulated no objections of their own but,
rather, have joined in the arguments of those nonnamed class members who are parties to this appeal and did file
objections with the district court that included proof of their respective status as class members. We need not, and
4
 BACKGROUND

The amended class action complaint, filed in October 2010, recounts the conduct alleged

to have been perpetrated by Bank of America and Merrill Lynch officers. The false and

misleading statements made by Bank of America officers in the lead up to the merger between

the two banks, plaintiffs contend, gave rise to violations of Sections 10(b), 14(a), and 20(a) of the

Securities Exchange Act of 1934, and violations of Sections 11, 12, and 15 of the Securities Act

of 1933.

In mid-September 2008, Bank of America announced the potential acquisition of Merrill

Lynch and a shareholder vote to follow in December of 2008. Much of the behind-the-scenes

negotiations were conducted by John Thain and Michael Lewis, the CEOs of Merrill Lynch and

Bank of America, respectively. These negotiations included whether Bank of America would

subsidize prospective year-end bonuses for Merrill Lynch executives and employees for the 2008

year, a condition to which Bank of America agreed. The parties also agreed that these bonuses

would be paid out in December of 2008, prior to the merger officially closing. Leading up to a

shareholder vote on the merger, Merrill Lynch incurred losses of $7.5 billion in October, and

$5.8 billion in November (with an additional “goodwill impairment” of $2.2 billion tied to the

subprime residential mortgage side of Merrill Lynch’s operations)—a total loss of $15.5 billion

over the first two months of the quarter alone. Neither financial institution revealed to

shareholders or the public the extent of Merrill Lynch’s losses during the fourth quarter. In

November 2008, instead of disclosing any discussion of the agreement on bonuses or Merrill

Lynch’s losses, Bank of America and Merrill Lynch filed a Joint Definitive Proxy Statement

therefore do not, resolve the appellees’ challenges to those objectors whose status as class members is questionable,
as the substance of all the objections properly before the court are ripe for review.
5
seeking approval of the merger from shareholders. Shareholders thereafter voted to approve the

merger.

In their complaint plaintiffs allege that after the shareholder vote some senior Bank of

America executives who were aware of Merrill Lynch’s losses sought to invoke a “material

adverse change” clause to terminate the merger between the banks. The plaintiffs claim that

Bank of America was stopped from invoking the clause and halting the merger by then-Secretary

of the Treasury Henry Paulson and then-Chairman of the Federal Reserve Ben Bernanke. The

plaintiffs further allege that the government did not credit Bank of America’s assertions that

Merrill Lynch’s insolvency took the bank by surprise because it had had three months to

investigate Merrill Lynch. Bank of America, the plaintiffs allege, was nonetheless able to

negotiate a resolution with the federal government: agreeing not to invoke the “material adverse

change” clause so long as the federal government provided Bank of America with a $138 billion

bailout, consisting of $20 billion of capital infusion and an asset guarantee of $118 billion.

At the time the merger closed on January 1, 2009, shareholders remained unaware that

the projected losses for Merrill Lynch in the fourth quarter of 2008 were over $21 billion; that

Bank of America executives had attempted to use the material adverse change clause to avoid the

merger; that Bank of America negotiated the acquisition of Merrill Lynch with the federal

government and secured an agreement that the objecting executives would not be fired if they

went forward with the merger; and that, despite the losses, Merrill Lynch still paid its executives

and employees $3.6 billion in bonuses. This information only became public in mid-to-late

January. Once this information reached the public, Bank of America shares fell from $12.99 to

$5.10 over the course of eleven days. Shareholder lawsuits promptly followed.

After the claims were consolidated, pursuant to Federal Rule of Civil Procedure 23 the

district court certified the plaintiff class and designated various pension funds and other parties
6
as the Class Representatives. The court also approved the notice of the class action that would

be distributed through a variety of media to inform the public of the action. The certified classes

included:

(1) All persons and entities who held Bank of America Corporation
common stock as of October 10, 2008, and were entitled to vote on
the merger between Bank of America Corporation and Merrill
Lynch & Co., Inc. that was consummated on January 1, 2009;
(2) All persons and entities who purchased or otherwise acquired
the common stock of Bank of America Corporation during the
period from September 18, 2008 through January 21, 2009,
inclusive, excluding shares of Bank of America Corporation
common stock acquired by exchanging Merrill Lynch & Co., Inc.
common stock for Bank of America Corporation common stock
through the merger between the two companies;
(3) All persons and entities who purchased or otherwise acquired
January 2011 call options on Bank of America Corporation
common stock during the period from September 18, 2008 through
January 21, 2009, inclusive; and
(4) All persons and entities who purchased Bank of America
Corporation common stock issued under the Registration
Statement and Prospectus and October 7, 2008 Supplemental
Prospectus of the Bank of America Corporation, in the common
stock offering that occurred on or about October 7, 2008.

The notice provided potential class members with information about being a member of the class

as well as the procedures to follow to opt out of the class. It also provided a deadline of May 7,

2012, to opt out of the settlement.

In November 2012, the class representatives filed a motion for preliminary approval of a

negotiated settlement of $2,425,000,000.00. The motion included the proviso that funds from

the settlement would go toward paying any litigation costs and attorneys’ fees awarded by the

court. The district court preliminarily approved the settlement in December 2012, and notice

was provided to class members. The notice also allowed class members the opportunity to opt

back into the class if they had previously opted out, and an opportunity to object to the

7
settlement. Following notice of the preliminary approval of the settlement, several persons filed

objections.

The objections at issue in this appeal were originally raised in the district court by the

Washeniks, the Masiowskis and Rinises, St. Stephen, Inc., and the Orloff Family trusts. The

substance of these objections focused on whether attorneys’ fees under the settlement agreement

were reasonable, whether representative plaintiffs were entitled to reimbursement for litigation

costs, and whether the notice complied with due process requirements, the Private Securities

Litigation Reform Act, and Federal Rule of Civil Procedure 23.

The district court conducted a hearing in April to discuss the substance of these

challenges and those asserted by other class members. Relevant to this appeal, the court found

that the notice of the settlement complied with the preliminary approval order, constituted the

best notice practicable under the circumstances, amounted to a notice that was reasonably

calculated to inform class members of their rights under the settlement, and complied with

Federal Rule of Civil Procedure 23, the United States Constitution, and the Private Securities

Litigation Reform Act. The objectors appealed.

DISCUSSION

We review a district court’s approval of a settlement agreement for abuse of discretion.

See, e.g., Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 435 (2d Cir. 2007) (holding

that when “we find an abuse of discretion in our review of the allocation of funds derived from

class settlements, the scheme adopted by the District Court will not be upheld”); see also

McReynolds v. Richards-Cantave, 588 F.3d 790, 800 (2d Cir. 2009) (“A district court’s

determination that a settlement in a class action lawsuit is fair, reasonable, and adequate . . . is

reviewed for abuse of discretion.” (internal quotation marks omitted)). “[A] district court abuses

its discretion when ‘(1) its decision rests on an error of law (such as application of the wrong
8
legal principles) or a clearly erroneous factual finding, or (2) its decision—though not

necessarily the product of a legal error or a clearly erroneous factual finding—cannot be located

within the range of permissible decisions.’” Masters, 473 F.3d at 435 (quoting Zervos v. Verizon

New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001)).

The Award of Reimbursement Costs to Representative Plaintiffs

Objectors-appellants first argue the district court violated the Private Securities Litigation

Reform Act, 15 U.S.C. §§ 78u-4(a)(2)(A)(vi), 78u-4(a)(4), when it awarded $453,003.04 to

representative plaintiffs. They contend that the notice to class members—approved by the

district court—was deficient because it failed to identify these expected costs and because the

costs were not reasonable under 15 U.S.C. § 78u-4(a)(4). We conclude that the district court did

not abuse its discretion in any of these instances.

The notice to class members states that “Co-Lead Counsel also will apply for the

reimbursement of Litigation Expenses . . . which may include the reasonable costs and expenses

of Class Representatives . . . directly related to their representation of the Class.” J. App’x at

750. The yardstick against which we measure the sufficiency of notices in class action

proceedings is one of reasonableness. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396

F.3d 96, 113 (2d Cir. 2005); see also Fed. R. Civ. P. 23(e)(1) (“The court must direct notice in a

reasonable manner to all class members who would be bound by the proposal.” (emphasis

supplied)). Here, the district court approved a notice which identified the potential award of

attorneys’ fees and the costs of litigating, including “the reasonable costs and expenses of Class

Representatives,” as well as the approximate expected cost per share of $.03. Such notice

unequivocally conveys the relevant information to the respective class members. The district

9
court, therefore, neither exceeded the bounds of its discretion in approving the notice, nor

violated the Federal Rules of Civil Procedure or the United States Constitution.5

Likewise, the costs borne by representative plaintiffs litigating this matter were

reasonable, in accord with 15 U.S.C. § 78u-4(a)(4). We note that the representative plaintiffs

submitted affidavits to the district court that included a thorough accounting of hours dedicated

to the litigation and a statement that these hours constituted lost work time—an item for which

§ 78u-4(a)(4) expressly allows recovery. See Varljen v. H.J. Meyers & Co., 2000 WL 1683656,

at *5 n.2 (S.D.N.Y. Nov. 8, 2000) (allowing for the recovery of lost wages); cf. In re AMF

Bowling, 334 F. Supp. 2d 462, 470 (S.D.N.Y. 2004) (denying request for wages when

representative parties failed to include any assertion in affidavits to the court that they “lost time

at work or gave up employer-granted vacation time”). Because these costs were reasonable and

comport with § 78u-4(a)(4), objectors-appellants argument fails.

5
We also are not persuaded by objectors-appellants’ argument that the notice was deficient for failing to
“summarize” these costs on the cover page as required by 15 U.S.C. § 78u-4(a)(7)(C). That provision reads:

If any of the settling parties or their counsel intend to apply to the court for an
award of attorneys’ fees or costs from any fund established as part of the
settlement, a statement indicating which parties or counsel intend to make such
an application, the amount of fees and costs that will be sought (including the
amount of such fees and costs determined on an average per share basis), and a
brief explanation supporting the fees and costs sought. Such information shall
be clearly summarized on the cover page of any notice to a party of any
proposed or final settlement agreement.

15 U.S.C. § 78u–4(a)(7)(C) (emphasis supplied). “Our starting point in statutory interpretation is the statute’s plain
meaning,” United States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000), and in this instance the definition of
“summarize.” Webster’s Third New International Dictionary, Unabridged (2014) defines “summarize” as “to tell in
or reduce to a summary,” with “summary” defined as “constituting or containing a summing up of points: covering
main points concisely: summarizing very briefly.” The Oxford American English Dictionary (2014) alternatively
defines “summarize” as to “[g]ive a brief statement of the main points of (something).” Under either definition, the
cover page of the notice covered the main points of these costs in accord with § 78u–4(a)(7)(C), with more precise
information contained in the subsequent pages of the notice. The notice thus complied with the statutory
requirements under the PSLRA in summarizing on the cover page the costs associated with the litigation, as well as
attorneys’ fees, and in providing a further explanation of these aspects of the settlement in subsequent pages.
10
Notice of the Statement of Average Amount of Damages Per Share

Objectors-appellants next contend that the notice was constitutionally deficient in

violation of objectors’ due process rights with respect to the “Statement of Average Amount of

Damages Per Share.” We have had occasion to reject this argument previously in light of the

applicable requirements of the Private Securities Litigation Reform Act. See In re Am. Int’l

Grp., Inc. Sec. Litig., 452 F. App’x 75, 77 (2d Cir. 2012) (summary order), cert. denied 133 S.

Ct. 280. When parties state that they do not agree as to the average amount of damages per share,

section 78u-4(a)(7)(B)(ii) of Title 15 requires only that the parties provide a statement

“concerning the issue or issues on which the parties disagree.” 15 U.S.C. § 78u–4(a)(7)(B)(ii).

The relevant section of the notice—identified as “Statement of Average Amount of Damages Per

Share”—begins: “The Parties do not agree on the average amount of damages per share that

would be recoverable if Lead Plaintiffs were to prevail in the Action.” J. App’x at 749. The

paragraph then catalogues the disagreements between the parties, including the defendants’

assertion that no false or misleading statement occurred relevant to the merger with Merrill

Lynch in the fourth quarter of 2008, the defendants’ belief that they could demonstrate a

diminution in stock value traceable to other factors than those alleged by the plaintiffs, and a

general dispute between the parties over the proper methodology for determining damages.

Having identified in the notice of the settlement the particulars of their differences, the parties

complied with the requirements of 15 U.S.C. § 78u-4(a)(7)(B)(ii), and they were under no

obligation to identify the average amount of damages per share. See, e.g., In re Cendant Corp.

Litig., 264 F.3d 201, 247 n.26 (3d Cir. 2001). Accordingly, there was neither a deprivation of a

constitutional right, including due process, nor did the district court exceed the bounds of its

discretion in approving the notice.

11
The Award of Attorneys’ Fees

“What constitutes a reasonable fee is properly committed to the sound discretion of the

district court, and will not be overturned absent an abuse of discretion, such as a mistake of law

or a clearly erroneous factual finding.” Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d

Cir. 2000) (internal citation omitted). When considering common fund or class action law suits,

we have recognized that “[district] courts have traditionally awarded fees for common fund cases

in the lower range of what is reasonable” given the “economies of scale[.]” Wal-Mart Stores,

Inc., 396 F.3d at 122. Despite challenging the reasonableness of the fees awarded in the present

case, the objectors-appellants have failed to identify any specific abuse of discretion on the part

of the district court, and therefore our review convinces us that the court awarded fees based

upon an application of the criteria set out in Goldberger. 209 F.3d at 47. We are not persuaded,

furthermore, by the argument that a 3% cap of attorneys’ fees against the settlement total would

be a more reasonable fee and that the district court erred when it declined to impose such a cap.

No abuse of discretion will occur when, as in this instance, the district court fulfills both its “duty

to act as a fiduciary who must serve as a guardian of the rights of absent class members and . . .

the requirement of a searching assessment regarding attorneys’ fees that should properly be

performed in each case.” McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 419 (2d Cir. 2010)

(internal quotation marks omitted).

We have considered all of objectors-appellants remaining arguments and conclude that

they are without merit. The judgment of the district court approving the settlement is, therefore,

AFFIRMED.

12