     09-0008-cv
     MBA V. WORLD AIRWAYS, INC.


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
     January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
     Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either
     the federal appendix or an electronic database (with the notation “summary order”). A party citing a
     summary order must serve a copy of it on any party not represented by counsel.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3   on the 10th day of March, two thousand ten.
 4
 5   PRESENT:
 6
 7               AMALYA L. KEARSE,
 8               ROBERT A. KATZMANN,
 9               DEBRA ANN LIVINGSTON,
10                                 Circuit Judges.
11   ____________________________________________________________
12
13   Ijeoma Mba, Rachel Jones, Patience Jones,
14                Plaintiffs-Appellants,
15
16           -v.-                                              No. 09-0008-cv
17
18   World Airways, Inc.,
19                Defendant-Appellee,
20
21   O. Peter Obafemi, Dr., Ritetime Aviation and Travel Services, Inc.,
22                 Defendants.
23   ____________________________________________________________
24
25                                    Roger Bennet Adler (O. Benjamin Okeke, of counsel), Brooklyn,
26                                    NY, for Plaintiffs-Appellants.
27
28                                    Malcolm L. Benge, Zuckert, Scoutt & Rasenberger, LLP,
29                                    Washington, DC (Patrick J. Bonner, Freehill, Hogan & Mahar,
30                                    LLP, New York, NY, on the brief), for Defendant-Appellee.
31
32                                    David M. Goldhaber, C. Kinnier Lastimosa, Sedgwick, Detert,
33                                    Moran & Arnold LLP, Chicago, IL, for Amicus Curiae Capitol
34                                    Indemnity Corporation.
 1          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED in part and VACATED and

 3   REMANDED in part.

 4          Plaintiffs-Appellants Ijeoma Mba, Rachel Jones, and Patience Jones (“Plaintiffs”) appeal

 5   from orders of the United States District Court for the Eastern District of New York (Dearie,

 6   C.J.), entered December 8 and 10, 2008, approving a class settlement between Plaintiffs, other

 7   class members, Defendant-Appellee World Airways, Inc. (“World Airways”), and Amicus

 8   Curiae Capitol Indemnity Corporation, and granting attorneys’ fees and expenses to lead counsel

 9   only. Plaintiffs argue that the distribution of unpaid settlement funds confers an undue benefit

10   upon World Airways and that members of the plaintiff class from Nigeria will be unable to

11   receive payment. They also argue that the district court’s awards of attorneys’ fees were abuses

12   of discretion. For the reasons stated herein, we affirm the district court’s order approving the

13   settlement but vacate its orders granting class counsel Thacher Proffitt & Wood LLP (“Thacher”)

14   $1,355,265.94 in fees and $109,734.06 in costs and Echeruo, Counsel, Attorneys at Law, LLP

15   (“Echeruo”) $600,000 in fees and denying fees and costs to O. Benjamin Okeke (“Okeke”). We

16   assume the parties’ familiarity with the underlying facts, procedural history, and specification of

17   the issues on appeal.

18          We review approval of class action settlements for abuse of discretion. See Cent. States

19   Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229,

20   246 (2d Cir. 2007). The district court’s factual conclusions related to a settlement agreement are

21   reviewed for clear error; its legal conclusions we examine de novo. Id. at 247. Similarly, with

22   regard to attorneys’ fees, this Court “will not overturn a district court’s award of attorneys’ fees



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 1   ‘absent an abuse of discretion, such as a mistake of law or a clearly erroneous factual finding.’”

 2   In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 134 (2d Cir. 2008) (quoting Goldberger v.

 3   Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000)). Abuse of discretion is interpreted in a

 4   particularly deferential fashion for fee decisions, given that the district court is in a far better

 5   position than this Court to make these determinations. Id.

 6          A district court may approve a proposal that binds class members only “after a hearing

 7   and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). It must also

 8   determine that the settlement is not the product of collusion. Grant v. Bethlehem Steel Corp.,

 9   823 F.2d 20, 22-23 (2d Cir. 1987). In order to determine whether a settlement is fair, the district

10   court must look at both the settlement’s terms and the negotiating process leading up to the

11   settlement.   D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001).                Moreover, a

12   presumption of fairness, adequacy, and reasonableness may attach as long as there were arm’s-

13   length negotiations between experienced counsel after meaningful discovery. See Wal-Mart

14   Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005). To evaluate the substantive

15   reasonableness of a settlement, we apply the Grinnell factors:

16                  (1) the complexity, expense and likely duration of the litigation;
17                  (2) the reaction of the class to the settlement; (3) the stage of the
18                  proceedings and the amount of discovery completed; (4) the risks
19                  of establishing liability; (5) the risks of establishing damages; (6)
20                  the risks of maintaining the class action through the trial; (7) the
21                  ability of the defendants to withstand a greater judgment; (8) the
22                  range of reasonableness of the settlement fund in light of the best
23                  possible recovery; [and] (9) the range of reasonableness of the
24                  settlement fund to a possible recovery in light of all the attendant
25                  risks of litigation.

26   City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal citations omitted),

27   abrogated on other grounds by Goldberger, 209 F.3d 43.


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 1          Plaintiffs object to the substance of the settlement on the ground that World Airways

 2   need not pay out the entire common fund amount if the number of claimants is fewer than 2,050,

 3   suggesting that this renders the settlement unreasonable and that the district court abused its

 4   discretion in approving it. We conclude otherwise. This Court has held that unclaimed portions

 5   of a class action fund in a private action may properly be returned to the defendant. See Van

 6   Gemert v. Boeing Co., 739 F.2d 730, 733, 737 (2d Cir. 1984). The history of this case provides

 7   no indication that the defendants behaved in a manner that would make reversion of the unpaid

 8   funds to World Airways so inappropriate as to be an abuse of discretion. Moreover, to the extent

 9   that Plaintiffs requested that the lower court restructure the terms of the settlement agreement to

10   avoid the reversion, we find that the court’s refusal to do so was not an abuse of discretion.

11   “[T]he district judge generally should not dictate the terms of a settlement agreement in a class

12   action. Rather, ‘he should approve or disapprove a proposed agreement as it is placed before him

13   and should not take it upon himself to modify its terms[]’ . . . .” In re Agent Orange Prod. Liab.

14   Litig., 821 F.2d 139, 144 (2d Cir. 1987) (quoting In re Warner Commc’ns Sec. Litig., 798 F.2d

15   35, 37 (2d Cir. 1986)).

16          We also find that Plaintiffs’ concerns about payment to Nigerian class members do not

17   render the settlement unreasonable.     Counsel for World Airways indicated at the Fairness

18   Hearing that there were many ways for Nigerian class members to be paid, including payment in

19   dollars and conversion to local currency, and stated that they would work to ensure payment to

20   those class members if problems arose with payment in dollars. The district court accepted those

21   statements.   Plaintiffs have proffered no evidence other than conclusory statements about

22   Nigerian law that would cause this Court to disturb that determination.



                                                     4
 1          We agree with Plaintiffs, however, that the district court inadequately explained its

 2   determinations regarding attorneys’ fees and costs in connection with this settlement. In granting

 3   attorneys’ fees to the class counsel in this case, Thacher and Echeruo, the district court noted that

 4   “[t]he sole opposition is voiced by [Plaintiffs’ counsel] Benjamin Okeke. The stated opposition,

 5   however, does not cast any doubt upon the appropriateness and reasonableness of the fee request.

 6   Largely for the reasons stated in the submission of Class Counsel, therefore, the Court grants the

 7   application and awards the requested fees and disbursements.” The district court also noted that

 8   “the benefits enjoyed by Class members likely and substantially exceed the level of recovery

 9   enjoyed by non-class members who have settled their claims independently of this litigation.”

10   Two days later, it issued an order specifying that Thacher would receive $1,355,265.94 in fees

11   and $109,734.06 in costs and Echeruo $600,000 in fees, amounts that were less than the draft

12   invoices provided to the court but tallying with the amounts requested by class counsel. In

13   response to a submission by Plaintiffs suggesting that “it might have been [a]n oversight on the

14   part of the court to render a decision” on the objections to the class settlement without discussing

15   the motion for Plaintiffs’ counsel’s fees and costs, the court handwrote the following: “Counsel

16   is mistaken. The Court considered all objections Re fees and costs.”

17          When awarding fees to counsel in common fund cases, the basic touchstone that a district

18   court should consider is “what is reasonable under the circumstances,” Goldberger, 209 F.3d at

19   47 (internal quotation marks omitted), in light of the governing principles that “the fee awarded

20   must reflect ‘the actual effort made by the attorney to benefit the class’ and that a court is ‘to act

21   as a fiduciary who must serve as a guardian of the rights of absent class members,’” Cent. States,

22   504 F.3d at 249 (quoting City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1099 (2d Cir. 1977),



                                                       5
 1   abrogated on other grounds by Goldberger, 209 F.3d 43). Factors considered in determining

 2   what is reasonable include:

 3          “(1) [T]he time and labor expended by counsel; (2) the magnitude and
 4          complexities of the litigation; (3) the risk of the litigation . . .; (4) the quality of
 5          representation; (5) the requested fee in relation to the settlement; and (6) public
 6          policy considerations.”
 7
 8   Goldberger, 209 F.3d at 50 (quoting In re Union Carbide Corp. Consumer Prods. Bus. Sec.

 9   Litig., 724 F. Supp. 160, 163 (S.D.N.Y. 1989)).

10          Although this Court is deferential to the district court’s familiarity with the case in the

11   setting of fees, “it is important that we ‘be informed by the record of why the district court acted

12   as it did.’” Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997) (quoting In re

13   Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir. 1992) (per curiam)) (internal citations

14   omitted). Although “[t]he district court is not required to ‘set forth item-by-item findings

15   concerning what may be countless objections to individual billing items,’” Haley v. Pataki, 106

16   F.3d 478, 484 (2d Cir. 1997) (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)

17   (per curiam)), fee determinations nonetheless require “a conscientious and detailed inquiry into

18   the validity of the representations that a certain number of hours were usefully and reasonably

19   expended.” Id. (quoting Lunday, 42 F.3d at 134) (internal quotation mark omitted).

20          In this case, we cannot say that the reasoning of the district court is sufficiently set forth

21   to permit appropriate appellate review.        This Court has prescribed two methodologies for

22   calculating attorneys’ fees: the lodestar method and the percentage-of-the-fund method. See

23   Goldberger, 209 F.3d at 47. The district court did not officially use either method, nor did it

24   reference in writing the Goldberger factors to determine reasonableness. Rather, it only adopted

25   the reasoning of the submissions of class counsel, giving them the entire amount requested. But


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 1   that request appears to have been generated by counsel’s choice to reduce its billing invoices by

 2   some unspecified amount to meet the parameters of the settlement agreement. Moreover, had the

 3   district court examined the extensive invoices given to it by Thacher, it would have found, as

 4   Plaintiffs correctly point out, that Thacher was billing for its work on its fee application. This

 5   Court has expressly forbidden such billing in common fund cases. See Savoie v. Merchants

 6   Bank, 166 F.3d 456, 461 (2d Cir. 1999). Given the incentive structure of common fund cases,

 7   which provides attorneys with the “temptation . . . to agree to a less than optimal settlement ‘in

 8   exchange for red-carpet treatment on fees’” and class members with little to gain from objecting,

 9   the district court must guard the rights of the class with zeal. Goldberger, 209 F.3d at 53 (quoting

10   Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991)). Part of that process

11   requires the court explicitly to set forth its reasons for a fee award.

12           Similarly, we find that the district court inadequately explained its decision to deny

13   attorneys’ fees to Plaintiffs’ counsel, Okeke. Although a district court may deny an application

14   for a percentage of the recovery, decisions doing so in the past have been based on and upheld

15   due to “extensive findings with respect to [the attorney’s] time and efforts in the case,” findings

16   supporting a conclusion that these efforts “did not ultimately benefit the settlement fund.” Cent.

17   States, 504 F.3d at 250 (emphasis omitted). Here the record contains no evidence of such

18   findings.

19           In short, because the objections raised by the Plaintiffs to the disposition in the settlement

20   agreement of unclaimed funds and to the arrangements for the payment of Nigerian class

21   members do not render the settlement unreasonable or its approval an abuse of discretion, we

22   affirm the district court’s order approving the settlement. Because, however, we find that the



                                                        7
 1   district court failed to provide sufficient grounds for its orders granting class counsel Thacher

 2   $1,355,265.94 in fees and $109,734.06 in costs and Echeruo $600,000 in fees and denying fees

 3   and costs to Okeke, we vacate those orders and remand to the district court for further findings.

 4          We have reviewed all arguments not otherwise discussed in this summary order and find

 5   them to be moot or without merit. For the foregoing reasons, the judgment of the district court is

 6   hereby affirmed in part and vacated and remanded in part.

 7
 8                                                        FOR THE COURT:
 9                                                        Catherine O’Hagan Wolfe, Clerk
10
11
12




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