# PIERONI v. HUMANIGEN, INC.

> District Court, D. New Jersey · September 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10656629

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10656629

## How later opinions describe it (automated extraction)

- noting that the “commonality requirement ‘does not require identical claims or facts among class member|s]” (citations omitted)
- finding 29 objectors out of a class of 281 “strongly favors settlement”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Case No. 2:22-cv-05258 (WIM)

OPINION FOR FINAL
APPROVAL OF SETTLEMENT,
□□ ING SECURINES CLASS CERTIFICATION,
AWARD OF ATTORNEYS’
FEES AND EXPENSES, AND
SERVICE AWARDS

WILLIAM J. MARTINI U.S.D.S.:
Before the Court in this class action against Defendants Humanigen, Inc.
(“Humanigen”), Dale Chappell, and Cameron Durrant (jointly “Defendants”) are motions by
Plaintiffs Alejandro Pieroni, Dr. Scott Greenbaum, and Joshua Mailey (collectively
“Plaintiffs”) for (1) final approval of a class action settlement, ECF Nos. 72, 74, and (2)
award of attorneys’ fees and expenses and service awards for the lead Plaintiffs, ECF Nos.
73, 74. For the reasons stated below, the motion for final approval is GRANTED and the
settlement is finally APPROVED, and the motion for attorneys’ fees, expenses and service
awards is GRANTED.
L BACKGROUND
A. Facts and Procedural History
Plaintiffs allege that between May 16, 2020, and July 12, 2022, Defendants made a
series of false and/or materially misleading statements concerning the scientific bases
underlying their efforts to develop their leading product candidate, lenzilumab, as a
treatment for COVID. According to Plaintiffs’ consolidated amended class action
complaint (“CAC”), “[t]hroughout the Class Period, Defendants repeatedly promoted
lenzilumab’s prospects as a successful COVID treatment while, at the same time, raising
over $300 million through public offerings that allowed Humanigen to avert insolvency.”
ECF No, 36 9 6, Plaintiffs assert that lenzilumab’s prospects of success were overstated,
that Defendants failed to disclose material adverse nonpublic information concerning the
scientific merits of repurposing lenzilumab as a COVID treatment as part of a scheme to

mislead investors into purchasing shares of Humanigen stock. According to Plaintiffs,
subsequent developments undermined Defendants’ projections of confidence ‘in
lenzilumab and caused Humanigen stock prices to plummet: these events included the
FDA’s rejection of Humanigen’s Emergency Use Authorization application (47.25% drop
in price per share) and the publication of results from a clinical trial that failed to
demonstrate lenzilumab’s efficacy as a COVID treatment (79.6% drop in price per share).
On August 26, 2022, Plaintiff Alejandro Pieroni filed a class action complaint
against Defendants Humanigen and Durrant, along with Humanigen executive Timothy
Morris,! for violations of the Section 10(b) of the Exchange Act and Rule 10b-5
promulgated thereunder, and against Durrant and Morris for violations of Section 20(a) of
the Exchange Act (the “Pieroni Action’), See ECF No. 1. On October 17, Plaintiff
Greenbaum filed an additional action asserting the same claims arising from the same set
of facts against the same Defendants, and adding Defendant Chappell as an additional
individual defendant (the “Greenbaum Action”). See Greenbaum v. Humanigen, Inc., et.
al., No. 2:22-cv-06118-WJM-AME. On October 25, Plaintiff Greenbaum filed a motion
to consolidate his action with the Pieroni Action, and for his appointment as lead plaintiff
in the proposed consolidated class action. The same day, Plaintiff Mailey also filed a
motion seeking consolidation of the actions and seeking his own assignment as lead
plaintiff? Greenbaum and Mailey then filed a joint stipulation agreeing to proceed as co-
lead plaintiffs on December 5, ECF No, 18 (corrected at ECF No, 19). The Court approved
the stipulation on December 9, 2022. ECF No. 20. Plaintiffs filed their CAC on March
27, 2023. ECF No. 36.
The CAC asserts that all defendants violated Section 10(b) of the Exchange Act and
Rule 10b-5 thereunder, and that Defendants Durrant and Chappell violated Section 20(a)
of the Exchange Act. After an initially unsuccessful attempt to resolve the dispute through
mediation, ECF Nos. 37-39, Defendants filed their Motion to Dismiss the CAC on J uly 7,
ECF No. 40. On August 29, the parties notified the Court that they had reached a
settlement-in-principle.

Mr. Morris is not named as a defendant in the CAC, and is no longer a party to this action.
2 A third class member, Meena Motwani, initially moved for consolidation and her own
appointment as Lead Plaintiff, ECF No. 8, but abandoned her motion by failing to file any
opposition to the other competing motions. See Lifestyle Invs., LLC y. Amicus Therapeutics, Inc.,
No, 3:15-cv-7350 (FLW) (DEA), 2016 WL 3032684, at *3 (D.N.J. May 26, 2016) (motions
“deemed abandoned” where movant did “not file[] any opposition”).

B. The Proposed Settlement
On September 22, Plaintiff filed a Stipulation of Settlement,? ECF No. 44, and a
motion for preliminary approval of the same, ECF No. 45. The Stipulation of Settlement
would establish a Settlement Fund in the amount of $3,000,000 to be held in an interest-
bearing escrow account until used in the following manner:
(a) to pay all the costs and expenses reasonably and actually incurred in
connection with providing Notice, Postcard Notice, and Summary Notice,
locating Settlement Class Members, soliciting Class claims, assisting with
the filing of claims, administering and distributing the Net Settlement Fund
to Authorized Claimants, processing Proof of Claim and Release forms, and
paying escrow fees and costs, if any;
(b) to pay the Taxes and Tax Expenses;
(c) to pay attorneys’ fees and expenses of Plaintiffs’ Counsel and
reimbursement of Plaintiffs’ expenses (the “Fee and Expense Award”), ifand
to the extent allowed by the Court; and
(d) to distribute the balance of the Net Settlement Fund to Authorized
Claimants as allowed by this Stipulation, the Plan of Allocation, or the Court.
Stipulation of Settlement (“Stipulation” or “Settlement”) at 28-29, ECF No. 44, The
Stipulation defines an Authorized Claimant as a Settlement Class Member whose claim
has been allowed under the terms of the Stipulation, and in turn defines a Settlement Class
Member as any Person’ who purchased or acquired Humanigen securities between May
16, 2020 and July 12, 2022, except for
“(i) Defendants; (ii) the officers, directors, and affiliates of Humanigen, at all
relevant times; (iii) Humanigen’s employee retirement or benefit plan(s) and

3 Unless otherwise indicated, capitalized terms shall have the same meaning as defined in the
Stipulation.
4 A Person is defined as “an individual, corporation, limited liability corporation,
professional corporation, partnership, limited partnership, limited liability partnership, limited
liability company, association, joint stock company, estate, legal representative, trust,
unincorporated association, government or any political subdivision or agency thereof, and any
business, legal or other entity and their spouses, heirs, predecessors, successors, representatives,
or assignees.” Stipulation §j 1.17.

their participants or beneficiaries to the extent they purchased or acquired
Humanigen securities through any such plan(s); (iv) any entity in which
Defendants have or had a controlling interest; (v) Immediate Family
members of any excluded person; and (vi) the legal representatives, heirs,
successors, or assigns of any excluded person or entity.”
Stipulation ff 1.29, 1.30. To receive benefits, Settlement Class Members must
timely submit a valid Claim Form. See ECF No. 44-2 at 4. Authorized Claimants will
receive payments from the Settlement Fund in an amount calculated in accordance with
Plaintiffs’ Plan of Allocation. Stipulation 9 5.14. The Plan of Allocation determines an
Authorized Claimant’s payment amount based on several factors, including the timing and
manner in which the securities were purchased or acquired, whether and when the
Settlement Class Member sold their securities, and the number of shares purchased or
acquired by the Settlement Class Member. See ECF No. 44-2. Plaintiffs appointed A.B.
Data, Ltd., as Claims Administrator in accordance with the Stipulation. Any monies
remaining in the Settlement Fund after’ initial distribution are to be redistributed to the
Authorized Claimants and, in the event that a de minimis sum remains and cannot be
practicably or economically redistributed, it will be donated to charity. Jd. § 5.14. The
Settlement would also dismiss with prejudice claims in this litigation by Plaintiffs and all
Settlement Class Members who have not opted out. Jed. at 23.
On November 8, 2023, this Court granted preliminary approval of the Settlement,
(“Preliminary Approval Order”) “as fair, reasonable, and adequate as to all Settlement Class
Members, pending a final settlement and fairness hearing.” Preliminary Approval Order ¥ 3,
ECF No. 48. The Court also preliminarily certified the Class for settlement purposes only
and approved the proposed Settlement notice documents and notice plan. /d. at {] 4-19. A
hearing on the final approval of the Settlement (the “Fairness Hearing”) was held on
September 10, 2024.
C. Notice
Between November 22, 2023 and July 26, 2024, the Claims Administrator
distributed or caused to be distributed 78,625 Postcard Notices to identified Settlement
Class Members. See Declaration of Ann Cavanaugh (“Cavanaugh Dec.”), ECF No, 72-5.
The Postcard Notice advises of the settlement website
(www.HumanigenSecuriliesLitigation.com) (“Settlement Website”) that provides detailed
information concerning the Settlement, including access to downloadable copies of the
Claim Form, Long Form Notice, Postcard Notice, Settlement Agreement, Preliminary
Approval Order, the CAC in this Action, and additional Court Documents and allows Class

Members to submit a claim online. Jd. § 4. The Postcard Notice and website also include
a toll-free number, 1-877-354-3785, which has recorded information, as well as contact
email and P.O. Box addresses.
Settlement Class Members had until March 7, 2024 to submit a claim. Preliminary
Approval Order ] 16, ECF No. 48; Supplemental Declaration of Ann Cavanaugh (“Suppl.
Cavanaugh Dec.”), { ECF No. 74-1. The deadline for any objections to (or requests for
exclusion from) the Settlement was August 6, 2024.° ECF No, 71. As of August 8, 2024,
the Claims Administrator had received no objections to the Settlement, four requests for
exclusion (on behalf of eight individual Settlement Class Members), and 24,594 Claims.
Suppl. Cavanaugh Dec. {[ 8. As of the same date, the Claims Administrator was in the
process of validating all Claim Forms received. Id.
IL. DISCUSSION
Plaintiffs’ pending motions ask the Court to: (1) find that the notice of the Settlement
given to potential Class Members was adequate; (2) approve the Settlement Agreement as
fair, reasonable, and adequate; and (3) certify the Class under Rule 23 to effectuate the
class settlement; (4) award attorneys’ fees and expenses to Class Counsel; and 5) approve
Service Awards in the amount of $7,500 to each of the Class Representatives distributed
from the Settlement Fund. Each issue is addressed in turn.
A. Motion to Approve Settlement
1. Adequacy of Notice
Before approving the settlement of a class action, the Court must “direct notice in a
reasonable manner to all class members who would be bound by the proposal.” Fed. R.
Civ. P, 23(e)(1). Rule 23(c)(2) requires notice that
clearly and concisely state[s] in plain, easily understood language: (4) the
nature of the action; (ii) the definition of the class certified; (ii) the class
claims, issues, or defenses; (iv) that a class member may enter an appearance
through an attorney if the member so desires; (v) that the court will exclude
from the class any member who requests exclusion; (vi) the time and manner

5 See ECF No. 71 (resetting deadline for objections in light of resolution of Defendant
Humanigen’s bankruptcy proceedings). -

for requesting exclusion; and (vii) the binding effect of a class judgment on
“members under Rule 23(c)(3).
In addition, notice of the settlement must be the best that is “practicable under the
circumstances.” Jd. The form and manner of the notice must satisfy the requirements of
due process. Shapiro v. Alliance MMA, Inc., No, 17-2583, 2018 WL 3 158812, at *7 (D.N.J.
June 28, 2018).
Here, the notice provided to Class Members satisfies the requirements of Fed. R.
Civ. P. 23 and due process. The notices were provided to Class Members by a third-party
claims administration and describe: (1) the nature of the action and the bases for the claims,
2) the definition of the certified class, (3) the key terms of the Settlement, including the
Settlement Amount, the process for each Class Member to receive a Settlement payment,
and the release of claims against Defendants, (4) the binding nature of the Settlement on
each Class Member, and (5) the rights of each Class Member to retain separate legal
counsel, object to the Settlement, opt-out of the Class, or appear at the Fairness Hearing,
as well as the deadlines by which to do so. See Stipulation (and Exhibits), Settlement
Website. Such notice “contain[ed] sufficient information to enable class members to make
informed decisions on whether they should take steps to protect their rights.” In re Baby
Products Antitrust Litig., 708 F.3d 163, 180 (3d Cir. 2013) (“Baby Prods.”’). Members
were notified in the best practicable manner under the circumstances. The requirements of
Rule 23 and due process are satisfied.
2. Girsh and Prudential Considerations of Settlement
Fed. R. Civ. P. Rule 23(e) requires court approval of any proposed settlement of a
class action. A court may, in its discretion, approve a proposed class action settlement “only
on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); in re
Prudential Ins. Co, Am. Sales Practice Litig. Agent Actions, (“Prudential”), 148 F.3d 283,
299, 316 (3d Cir.1998). The law encourages and favors the settlement of civil actions in
federal court, particularly in complex class actions where the settlement is the result of
arm’s-length negotiations between experienced counsel after meaningful discovery. Jn re
Gen. Motors Corp, Pick-Up Truck Fuel Tank Prods. Liab. Litig., General Motors "55
F.3d 768, 784 (3d Cir.1995); see also Inre Warfarin Sodium Antitrust Litig,, 391 F.3d 516,
535 (3d Cir. 2004) (“Warfarin”). However, notwithstanding the general presumption in
favor of a settlement in the class action context, the Court also “acts as a fiduciary who
must serve as a guardian of the rights of absent class members.” General Motors, 55 F.3d
at 785 (citations and quotations omitted).

46

The Third Circuit has identified nine factors for evaluating a class action settlement:
(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. Girsh v. Jepson, 531 F.2d
153, 157 Gd Cir.1975).
Beyond these nine Girsh factors, additional factors the Court may consider when
appropriate and relevant, include: the maturity of the underlying substantive issues; the
existence and probable outcome of claims by other classes and subclasses; the comparison
between the results achieved by the settlement for individual class or subclass members
and the results achieved-or likely to be achieved-for other claimants, whether class or
subclass members ate accorded the right to opt out of the settlement; whether any
_ provisions for attorneys’ fees are reasonable; and whether the procedure for processing
individual claims under the settlement is fair and reasonable. Prudential, 148 F.3d at 323,
An additional inquiry to test the reasonableness of a settlement is whether the settlement
provides a “direct benefit” to members of the class. See Baby Prods, 708 F.3d at 174.
“These factors are a guide and the absence of one or more does not automatically render
the settlement unfair.” In re Am. Family Enters. 256 B.R. 377, 418 (D.N.J. 2000)
(quotations omitted). Instead, the Court “must look at all the circumstances of the case and
determine whether the settlement is within the range of reasonableness under Girsh.” In re
Valeant Pharms. Int’ Inc. Sec. Litig., No. 15-07658, 2020 WL 3166456, at *7 (D.N.J. June
15, 2020) (“Valeant”). The Court addresses each Girsh factor, and, where appropriate,
Prudential factor, in turn.®
i. The complexity, expense and likely duration of the litigation
Analysis of the first Girsh factor “captures the probable costs, in both time and
money, of continued litigation.” In re Nat’l Football League Players Concussion Injury
Litig., 821 F.3d 410, 437 (3d Cir, 2016) (“NFL Players Litig.”). Here, the costs, complexity
6 Rule 23(e)(2) was amended in 2018 to include a list of factors for courts to consider in
evaluating a proposed settlement of a class action. The Third Circuit has, however,
continued to apply the Girsh and Prudential factors. See In re Google Inc. Cookie
Placement Consumer Priv. Litig., 934 F.3d 316, 329 Gd Cir. 2019). Accordingly, this
Court likewise focuses its analysis on the appropriate Girsh and Prudential factors.
77

and likely duration of this case strongly favor settlement. This action is quite complex,
involving difficult questions related both to securities law and biopharmaceutical research.
See Whitely v. Zynerba Pharma., Inc., Civil Action No, 19-4959, 2021 WL 4206696 (Sept.
16, 2021) (first Girsh factor weighs in favor of settlement where “case raised significant
and complex factual and legal questions regarding Defendants’ purported omissions and/or
misrepresentations in SEC filings regarding a pharmaceutical product in development”);
Seidman v. American Mobile Systems, 965 F.Supp. 612, 619 (E.D. PA. 1997) (securities
fraud class action “{u]nquestionably ... would be complex and expensive.”). The parties
have also yet to engage in discovery, which would undoubtedly require significant further
time and expense, patticularly in light of the expert witnesses each party would likely seek
to designate and/or depose. Continued litigation would likely require the resolution of
class certification challenges, discovery-related motions, and summary judgment motions,
all before reaching the pre-trial phase. If and when the case reached a final judgment on
the merits, any such judgment would likely be subject to a lengthy and expensive appeals
process. The Settlement eliminates the costs and risks associated with further litigation and
provides for Settlement Class Members to receive prompt compensation. The first Girsh
factor weighs strongly in favor of settlement.
ii. The reaction of the class to the settlement
“The second Girsh factor ‘attempts to gauge whether members of the class support
the settlement.” Warfarin, 391 F.3d at 536 (quoting Prudential, 148 F.3d at 318). The
absence of any objections by Class Members and the small number of requests for
exclusion relative to the apparent size of the Class strongly weigh in favor of approval of
the Settlement. See e.g., NFL Players Litig. 821 F.3d at 438; Little-King v. Hayt Hayt &
Landau, No. 11-5621, 2013 WL 4874349, at *21 (D.N.J. Sept. 10, 2013) (collecting cases).
As of August 8, 2024, no Settlement Class members objected to the Settlement and
only eight requested exclusion from the Settlement (representing an infinitesimally small
exclusion rate). See Suppl. Cavanaugh Decl. 6-7. As such, the Settlement Class reaction
has been overwhelmingly positive. See e.g., Stoetzner v. United States Steel Corp., 897
F.2d 115, 118-19 (3d Cir. 1990) (finding 29 objectors out of a class of 281 “strongly favors
settlement”). Support for the settlement is further bolstered by the fact that 24,594 Claims
were submitted prior to the submission deadline in March 2024. This factor weighs
strongly in favor of approval of the Settlement.

iii. The stage of the proceedings and the amount of discovery
completed
The third Girsh factor “captures the degree of case development that class counsel
have accomplished prior to the settlement. Through this lens, courts can determine whether
class counsel had an adequate appreciation of the merits of this case before negotiating.”
Inve Cendant Corp. Litig., 264 F.3d 201, 235 (3d Cir. 2001) (quotations omitted). “The
fact that a case has not proceeded through discovery does not necessarily weigh against
settlement approval.” P. Van Hove BVBA y, Universal Travel Grp., Inc., No. 11-2 164, 2017
WL 2734714, at *7 (D.N.J. June 26, 2017). “Even settlements reached at a very early stage
and prior to formal discovery are appropriate where there is no evidence of collusion and
the settlement represents substantial concessions by both parties.” In re Johnson & Johnson
Derivative Litig., 900 F. Supp. 2d 467, 482 (D.N.J. 2012).
In this case, while the parties reached the Settlement prior to engaging in formal
discovery, Plaintiffs engaged in a preliminary investigation of the case, conducted legal
research into the merits of the case (and likelihood of protracted litigation), engaged expert
witnesses, interviewed fact witnesses, exchanged mediation briefs, and participated in
mediation. The Court finds that the parties had an adequate appreciation of the merits of
the case even without formal discovery. Accordingly, while the early stage of case
development here does not weigh in favor of settlement, neither does it weigh against. Cf
Weiss v. Mercedes-Benz of N. Am., 899 F. Supp. 1297, 1301 (D.N.J. 1995) (approving a
settlement even though case was still in the early stages of discovery). This factor is
neutral,
iv. The risks of establishing liability and damages
The fourth and fifth Girsh factors “survey the potential risks and rewards of
proceeding to litigation in order to weigh the likelihood of success against the benefit of an
immediate settlement.” Warfarin, 391 F.3d at 537. In other words, the Court must consider
“what the potential rewards (or downside) of litigation might have been had class counsel
elected to litigate the claims rather than settle them.” General Motors, 55 F.3d at 814, The
Court weighs the value of an immediate guaranteed settlement against the challenges that
remain in proceeding with litigation. Even if the class is certified, which Defendants would
likely oppose, and Plaintiffs survive any dispositive motions, there is no guarantee that
Plaintiffs would be successful in proving liability and damages. To illustrate just one hurdle
that Plaintiffs would need to overcome in establishing liability: Plaintiffs’ theory of liability
depends on their ability to persuade a jury that Defendants’ statements about the scientific
support for the efficacy of lenzilumab as a treatment for COVID were false or misleading

and, to the extent the statements are alleged to be misleading by reason of material
omission, that Defendants were obligated to disclose the omitted facts in order to render
their statements not misleading. See Macquarie Infrastructure Corp. v. Moab Partners, L.
P., 601 U.S. 257, 264 (2024) (“Rule [10b-5] prohibits omitting material facts necessary to
make the statement made ... not misleading.”), This would require proof of the statements’
falsity, Defendants’ knowledge thereof, and the materiality of information omitted from
their statements—none of which is a guarantee.
Nor is establishing loss causation an easy task: Plaintiffs would need to prove not
only that share prices were artificially inflated by Defendants’ statements, but that those
misstatements caused Humanigen’s stock prices to fall. See Dura Pharma.,, Inc. v. Broudo,
544 U.S, 336, 347 (“artificially inflated purchase price’ is not itself a relevant economic
loss.”). As Plaintiffs acknowledge, proving loss causation would likely require a “battle of
the experts,” the jury’s response to which would be unpredictable. See Jn re Viropharma
Inc. Sec. Litig., Civil Action No, 12-2714, 2016 WL 312108, at *13 GE.D. PA. Jan. 25,
2016) (quoting Jn re Corel Corp. Inc. Sec. Litig., 293 F.Supp. 2d 484, 492 (E.D, Pa. 2003).
Plaintiffs certainly may have been able to succeed in establishing liability and damages at
trial, but to attempt to do so would undoubtedly carry significant risk. See in re Schering-
Plough/Merg Merger Litig., No. 09-cv-1099, 2010 WL 1257722, at *10 (“A trial on the
merits always entails considerable risk.”), Even assuming a favorable trial outcome, the
possibility of an appeal would further delay relief for the Class Members. Accordingly, in
light of the real and extensive risks involved in Plaintiffs’ case, these two factors weigh in
favor of approving the Settlement.
v. The risks of maintaining the class action through the trial
The sixth Girsh factor “measures the likelihood of obtaining and keeping a class
certification if the action were to proceed to trial.” Warfarin, 391 F.3d at 537 (citations
omitted), Plaintiffs have not yet been certified as a class (other than their preliminary
certification for settlement purposes, ECF No. 48). To proceed with this litigation, they
“would still need to undertake the somewhat complex and expensive task of certifying the
putative class,” subject to Defendants’ oppositions and, if need be, appeals. ECF No, 72-
1 at 26. Furthermore, even if the Court were to certify a litigation class, the certification
would not be set in stone. See Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160
(1982) (“Even after a certification order is entered, the judge remains free to modify it in
the light of subsequent developments in the litigation.”); Prudential, 148 F.3d at 321
(“Under Rule 23, a district court may decertify or modify a class at any time during the

nn

litigation if it proves to be unmanageable.”). Hence, since the class has yet to be certified
and given the risks, this factor favors approving the Settlement.
vi. The ability of the defendants to withstand a greater judgment
The seventh Girsh factor considers whether Defendants could withstand a
significantly higher judgment amount. Even if Defendants could withstand a much greater
judgment, this fact would not be dispositive. See Warfarin, 391 F.3d at 538 (“[The] fact
that [Defendant] could afford to pay more does not mean that it is obligated to pay any
more than what the ... class members are entitled to under the theories of liability that
existed at the time the settlement was reached”). And where Defendants’ ability to pay
would be jeopardized by a much greater judgment, this factor weighs in favor of approval
of approval. See Prudential, 962 F.Supp. at 540 (“The settlement is fair, reasonable, and
adequate in light of Prudential’s inability to withstand a much greater judgment”). Here,
Humanigen has already filed for bankruptcy and the settlement amount has been approved
by the Bankruptcy Court. The fact of Humanigen’s bankruptcy underscores the risks that
Plaintiffs would face if they tried to secure a substantially higher judgment (i.c., the risk of
recovering nothing at all). This factor is weighs in favor of approving the Settlement.
vii. The range of reasonableness of the settlement fund in light of the
best possible recovery and all attendant risks of litigation
The eighth and ninth Girsh factors analyze “whether the settlement represents a
good value for a weak case or a poor value for a strong case.” Warfarin, 391 F.3d at 538.
“The factors test two sides of the same coin: reasonableness in light of the best possible
recovery and reasonableness in light of the risks the parties would face if the case went to
trial.” Id. Here, the value of the settlement is low compared to the recovery Plaintiffs
sought, while the risks attendant to litigating a securities class action against a company
already in bankruptcy are significant. The Settlement Fund amounts to only about 0.58%
of the damages alleged, but there is a significant risk that proceeding with litigation would
result in an even lower or non-existent recovery even if Plaintiffs were successful on the
merits in light of Defendants’ anticipated difficulties paying the damages. In light of the
risks of proceeding with litigation discussed above, and the certainty of the benefits
provided by the Settlement, these factors weigh slightly in favor of approving the
Settlement.

11

viii. The Prudential Factors
In addition to the Girsh factors, the relevant Prudential factors favor approving the
Settlement. As to the Prudential factor that relates to the maturity of the underlying issues,
the Parties did engage in discovery, but (as discussed above) the parties participated in
significant factfinding, engaged expert witnesses, participated in mediation, and engaged
in long-term arms-length negotiations which ultimately led to the Settlement. The
Prudential factors that relate to the existence of other classes and subclasses are irrelevant
here as the Settlement Class encompasses all Persons who purchased Humanigen stock _
during the Class Period (except as limited by the Stipulation). Class Members have had
ample opportunity to object or opt-out of the Settlement and were provided clear
instructions on how to do so. See Cavanaugh Decl. (and Exhibits). The procedure for
processing individual claims under the Settlement is fair and reasonable, providing for
Settlement Class Members to submit claims online or via a paper claim form. See Suppl.
Cavanaugh Decl. 9] 4, 6, 7. As explained in more detail below, the attorneys’ fees
requested are also fair and reasonable. Finally, the Settlement also offers “direct benefits”
to the settlement class given that all Settlement Class Members are eligible to receive
compensation from the Settlement Fund upon verification by the Class Administrator. The
Court approves the Settlement finding it to be fair, reasonable, and adequate.
B. Class Certification .
In order to approve a class settlement agreement as fair under Fed. R. Civ. P. 23(c),
the Court must additionally determine that the requirements for class certification under
Rules 23(a) and (b) are also met. In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 257
(3d Cir. 2009), Each Rule 23 requirement must be established by a preponderance of the
evidence. In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015). While
the class certification analysis may “entail some overlap with the merits of the plaintiff's
underlying claim,” the court considers merits questions only to the extent they are relevant
to performing the “rigorous analysis” required to determine whether the Rule 23
prerequisites are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011).
1. Rule 23(a) Factors
Rule 23(a) provides that the class may be certified if: (1) the class is so numerous
that joinder is impracticable (“numerosity”); (2) there are questions of law or fact common
to the class (“commonality”); (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class (“typicality”); and (4) the representative parties
will fairly and adequately protect the interests of the class (“adequacy”). In re Constar Int □□
1% .

Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir, 2009) (quoting Fed. R. Civ. P. 23(a)). As
discussed below, the Rule 23(a) requirements for class certification aie satisfied.
i. Numerosity
Numetosity is satisfied when joinder of all putative class members is impracticable.
Fed, R, Civ. P. 23(a)(1). Where the number of potential plaintiffs exceed forty, the
numerosity requirement is generally fulfilled. Stewart v. Abraham, 275 F.3d 220, 227 Gd
Cir, 2001). Here, Plaintiffs estimate that there are “hundreds or thousands” of Settlement
Class Members, ECF No. 36 at 92, and 24,594 Claims have been received. Numerosity is
therefore satisfied.
ii. Commonality
Commonality requires that the members of the class must assert a common
contention that is capable of classwide resolution such that the “determination of its truth
or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke.” Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467, 489-90 (3d Cir, 2018)
(quoting Dukes, 564 U.S, at 350); see also Marcus v. BMW of N. Am., LLC, 687 F.3d 583,
597 (3d Cir. 2012) (noting that the “commonality requirement ‘does not require identical
claims or facts among class member|s]” (citations omitted)).

In this case, the dispute involves common issues relating to the alleged securities
fraud, the resulting harm to the Class, and the appropriate measure of Class damages. The
proposed class is sufficiently cohesive that the Class may use the same evidence to make a
prima facie showing of their claims and those claims are subject to class-wide proof,
Commonality and predominance requirements in Rules 23(a)(2) and 23(b)(3), respectively,
are thus satisfted.
iii. Typicality
“The concepts of commonality and typicality are broadly defined and tend to
merge.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (citation omitted).
“The typicality inquiry centers on whether the interest of the named plaintiffs align with
the interests of the absent members.” Stewart, 275 F.3d at 227 (citation omitted). Thus, the
typicality requirement ensures “that the class representatives are sufficiently similar to the
rest of the class—in terms of their legal claims, factual circumstances, and stake in the
litigation—so that certifying those individuals to represent the class will be fair to the rest
of the proposed class.” Jn re Schering Plough Corp, ERISA Litig., 589 F.3d 585, 597 (3d
Cir. 2009). “Factual differences will not render a claim atypical ifthe claim arises from the
same event or practice or course of conduct that gives rise to the claims of the [absent]
13

class members, and if it is based on the same legal theory.” Stewart, 275 F.3d at 227-28
(quoting Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir. 1992)). For the
typicality inquiry, a court thus compares “the attributes of the plaintiff, the class as a whole,
and the similarity between the plaintiff and the class.” Marcus, 687 F.3d at 598.
Plaintiffs’ claims here are typical because both Plaintiffs and Class Members were
injured by the same common course of conduct by Defendants— the alleged issuance of
false or misleading statements to artificially inflate Humanigen’s stock price to the benefit
of Defendants and ultimate harm of Plaintiffs, Plaintiffs also plead causes of action
common to all Settlement Class Members. Furthermore, Plaintiffs are not “subject to a
defense that is both inapplicable to many members of the class and likely to become a
major focus of the litigation.” In re Schering Plough Corp., 589 F.3d at 599. Thus,
Plaintiffs stand in the same position as the putative Class Members. Plaintiffs meet the
requirements of typicality.
ivy. Adequacy
Adequacy “encompasses two distinct inquiries designed to protect the interests of
absentee class members.” Prudential, 148 F.3d at 312. “First, [it] tests the qualifications
of the counsel to represent the class.” Jd. “Second, it ‘serves to uncover the conflicts of
interest between named parties and the class they seek to represent.’” Jd. (quoting Amchem
Prod, Inc. v. Windsor, 521 U.S. 591, 625 (1997),
Both Class Counsel have extensive experience in complex securities litigation and
class action proceedings. See ECF No. 45-2. Moreover, the Settlement was-reached after
arm’s length negotiations and mediation. Class Counsel are well versed in the applicable
legal issues and are qualified to represent the Class. Regarding the second prong, there is
no conflict of interest between the named parties and the Class. Amchem, 521 U.S. 591,
625-26. Plaintiffs, having suffered the same injury as the Class Members (although varying
in degree), possess the same interest and will adequately represent the interests of the Class.
Accordingly, the adequacy requirement is met.
2. Rule 23(b)(3) Factors
Next, in addition to Rule 23(a), class certification requires that a plaintiff also meet
one of the requirements set forth in Rule 23(b). Plaintiffs here specifically seek certification
ofa settlement class under Rule 23(b)(3), see ECF No. 36 § 220, which permits certification
only if (1) questions of law or fact common to class members predominate over individual — -
questions (“predominance”), and (2) a class action is the superior method for fairly and
efficiently adjudicating the controversy (“superiority”), Fed. R. Civ. P. 23(b)(3), Factors
relevant to a finding of predominance and superiority include:
14

(A) the class members’ interests in individually controlling the prosecution
or defense of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class members; (C)
the desirability or undesirabifity of concentrating the litigation of the claims
in the particular forum; and (D) the likely difficulties in managing a class
action.
Fed. R. Civ, P. 23(b)(3), As set forth below, the predominance and superiority requirements
of Rule 23(b)(3) are satisfied.
i. Predominance
Predominance requires the court to evaluate whether “questions of law or fact
common to class members predominate over any questions affecting only individual
members.” Fed. R. Civ. P. Rule 23(b)(3). The inquiry, while similar to the considerations
under Rule 23(a)’s commonality requirement, is a “far more demanding” standard that
requires the Court to determine if the proposed class is sufficiently cohesive that members
of the class may use the same evidence to make a prima facie showing of their claims and
those claims are subject to class-wide proof. 7yson Foods, Inc. v. Bouaphakeo, 136 8, Ct.
1036, 1045 (2016); Danvers Motor Co. v. Ford Motor Co., 543 F.3d 141, 148 (3d Cir,
2008) (“where an action is to proceed under Rule 23(b)(3), the commonality requirement
‘ig subsumed by the predominance requirement.” (internal quotations and citation
omitted)), “[T]he focus of the predominance inquiry is on whether the defendant’s conduct
was common as to all of the class members, and whether all of the class members were
harmed by the defendant’s conduct.” Sullivan, 667 F 3d at 298; see also Warfarin, 391
F.3d at 528 (finding predominance in “broad-based” campaign to deceive providers and
patients regarding a generic equivalent).
The Court must examine through the prism of Rule 23(b)(3) the elements of
Plaintiffs’ claim and ask whether proof of the essential elements require individual
treatment. In re Ins. Brokerage Antitrust Litig., 579 F.3d at 266 (quoting Newton v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172 3d Cir, 2001)); see also Neale v.
Volvo Cars of North America, LLC, 794 F.3d 353, 370-71 (3d Cir. 2015), The mere
existence of individual questions does not preclude a finding of predominance, nor does
the possibility that some individualized inquiry as to damages may be required. Neale, 794
F.3d at 371. Rather, the Court engages in a qualitative examination of both common and
individual issues. /d. (citing Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455,
468 (2013)).
Here, Defendants’ alleged false and misleading public statements and their impact
14

on Humanigen’s stock price provided the basis for liability as to all potential Class
Members. Common proofs required to demonstrate this violation predominate over
individualized inquiries. No individual inquiry will be necessary regarding Defendants’
liability to each Class Member. Predominance is satisfied.
ii, Superiority
Finally, to establish superiority, a plaintiff must demonstrate that “a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy.” Fed. R. Civ. P. 23(b)(3). This inquiry requires the Court to “balance, in terms
of fairness and efficiency, the merits of a class action against those of alternative available
methods of adjudication.” Danvers Motor Co., 543 F.3d at 149 (citation omitted).
In this case, many of the putative Class Members are individuals for whom pursing
a costly individual action for relatively minor damages is not a realistic or efficient
alternative. No Class Member has brought a separate claim, which would likely be
consolidated into this action anyway. Litigating these claims separately would further
unduly burden the judicial system. Warfarin, 391 F.3d at 534. Fairness and efficiency
accordingly weigh in favor of a finding that a class action is the superior method of
adjudicating these claims. Hence, a class action is the superior method of adjudication in
this matter.
C. Motion for Attorneys’ Fees
Class Counsel request an attorneys’ fees award of $750,000.00 (25% of the Fund),
costs and expenses in the amount of $75,000.00, and service awards of $7,500 per Class
Representative ($22,500 total) to be paid out of the Settlement Fund.’

7 As the Settlement Fund is currently held in an interest-bearing escrow account, each of
Class Counsel’s requests for fees and expenses includes a request for interest accrued on the same.
See ECF No. 73-1 at 1, Class Counsel does not specify whether they seek prejudgment interest
dating back to the establishment of the Settlement Fund, or postjudgment interest dating from the
issuance of this decision. For the avoidance of doubt, Class Counsel is entitled to postjudgment
interest at the rate accrued by the Settlement Fund. They are not entitled to prejudgment interest,
particularly in light of the fact that their lodestar calculations are based on their cutrent hourly
billing rates. ECF Nos. 72-3 72-4 3; see also In re Safety Components, 166 F. Supp. At 109
n.13 (‘Because current hourly rates have been employed to account for any delay in payment
experienced by Plaintiffs’ Counsel, an award of prejudgment interest is inappropriate.”).
14

1. Attorney’s Fees for Class Counsel
Pursuant to Rule 23(h), the Court “may award reasonable attorney’s fees and
nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P.
23(h). Although the decision to award attorneys’ fees and expenses is within the Court’s
discretion, the Court must carefully review the negotiated award to ensure that it is fair,
reasonable, and adequate. Little-King, 2013 WL 4874349, at *18; see also In re Rite Aid
Corp. Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005) (“Rite Aid”). “Two considerations must
play central roles in the assessment of a fee award under Rule 23(h): 1) how the amount
awarded stacks up against the benefit given to the class, using either the amounts paid or
the sums promised; and 2) whether side agreements between class counsel and the
defendant suggest an unreasonable attorney's fee award.” Jn re Wawa, Inc. Data Sec. Litig.,
85 F.4th 712, 718-19 (3d Cir. 2023) (footnote omitted). There is no evidence of any side
agreements in this case.
In evaluating an award of attorneys’ fees, courts typically apply one of two
methodologies: (1) the lodestar method in which the number of hours worked by Class
Counsel is multiplied by a reasonable hourly billing rate for such services; or (2) the
percentage-of-recovery method in which Class Counsel is awarded a certain percentage of
the Settlement Amount. In re AT&T Corp., Sec. Litig., 455 F.3d 160, 164 (3d Cir, 2006).
Where, as here, the Settlement provides for the payment of attorneys’ fees from the same
source as the pool of settlement funds available to Class Members, the arrangement “is, for
practical purposes, a constructive common find” that is best analyzed using the percentage-
of-recovery methodology. See Dewy v. Volkswagen AG, 558 F. App’x 191, 197 3d Cir.
2014); see also General Motors, 55 F.3d at 820-21.
i. Percentage of Recovery Analysis
The Third Circuit has identified a number of factors for the Court to consider in
determining whether a fee award is reasonable under the percentage-of-recovery analysis:
(1) the size of the fund created and the number of persons benefitted; (2) the presence or
absence of substantial objections by members of the class to the settlement terms and/or
fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the
complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of
time devoted to the case by plaintiffs’ counsel; and (7) the awards in similar cases. Guster
v. Ridgewood Energy Corp., 223 F.3d 190, 195 □□□ (Gd Cir. 2000). In addition to these
seven factors, a court may evaluate these three additional factors: (8) the value of benefits
attributable to efforts of class counsel relative to the efforts of other groups, such as
government agencies conducting investigations; (9) the percentage fee that would have
17

been negotiated had the case been subject to a private contingent fee arrangement at the
time counsel was retained; and (10) any innovative terms of settlement. Jn re Diet Drugs
(Phentermine/Flenfuramine/Dexflenfuramine) Prods, Liab. Litig., 582 F.3d 524, 541 (3d
Cir. 2009).
The first factor supports the requested award because the $3,000,000 settlement
benefits tens of thousands of investors, The second and fifth factors overlap considerably
with those already considered by the Court in approving the Settlement as fair, reasonable,
and adequate. The Court has already noted the absence of any objections to the Settlement,
notice of which included specific information about the fees requested by Class Counsel.
See Settlement website; see also Valeant, 2020 WL 3166456, at *12. Similarly, the Court
has already analyzed the risk of nonpayment by noting the various risks, including the risk
of an unsuccessful trial or appeal, and the effect of Humanigen’s bankruptcy, that would
render Plaintiffs and their contingency-fee based counsel unable to recover anything at all.
See supra, ILA.2.iv.; In re Merck & Co., Inc. Vytorin ERISA Litig., No. 08-285, 2010 WL
547613, at *i1 (D.N.J. Feb. 9, 2010) (“Merck”). Accordingly, as with the Settlement, each
of these factors weighs in favor of approving the request for an award of attorneys’ fees
and expenses.
The third factor also supports approving the requested fee award. This factor
measures the “quality of the result achieved, the difficulties faced, the speed and efficiency
of the recovery, the standing, experience and expertise of counsel, the skill and
professionalism with which counsel prosecuted the case and the performance and quality
of opposing counsel.” Valeant, 2020 WL 3166456, at *12 (quotations omitted). As already
noted, the $3,000,000 Settlement is immediate and substantially benefits the Class
particularly in light of the length of this case, the complex issues involved, and the zealous
advocacy of counsel on both sides.
As to the fourth factor, the Court has already recognized the complexity of this case,
which supports the proposed fee award. Indeed, the case is doubly complex given the
inherent complexity baked into securities class action litigation layered atop the complex
scientific subject matter of the alleged false statements. Cf Kanefsky v. Honeywell Int'l
Inc., No. 18-cv-15536, 2022 WL 1320827, at *4 (D.N.J. May 3, 2022) (securities class
action was made “even more complex” where it involved “thorny issues” regarding the
accounting for the accounting of asbestos liabilities given the facts underlying the lawsuit),
As to the duration of the litigation, this action has been pending for just over two years. As
such, a fee award amounting to 25% the Settlement Fund is reasonable. See, e.g., Del.
Cnty. Emps. Ret. Sys. v. AdaptHealth Corp., F.Supp. 3d __, 2024 WL 3360661, at *6

7R

(E.D. Pa. 2024) (finding that two-year duration of litigation weighs in favor of 25% fee
award). Accordingly, the fourth factor weighs in favor of approving the settlement.
The sixth factor considers the time spent by Class Counsel in the litigation. Here,
Class Counsel spent a combined 1,378 hours on this case, including on preparing filings,
mediation, negotiations, document review, interviews, expert retention, and research. The
time spent by Class Counsel to achieve the settlement appears to have been necessary and
reasonable. Cf Mirakay y. Dakota Growers Pasta Co., Inc., No. 13-CV-4429 JAP, 2014
WL 5358987, at *13 (D.NJJ. Oct. 20, 2014) (2,016.7 hours of work justified fee award of
$2,900,000). This factor favors approving the requested award.
In evaluating the reasonableness of a requested fee award, the seventh factor
requires the Court to compare the requested award to those approved in similar cases. In
common fund cases such as this one in which the percentage-of-recovery methodology is
used, fee awards have ranged between 19% to 45% of the settlement fund. See General
Motors, 55 F.3d at 822. Here, the requested fee award of $750,000 represents 25% of the
Settlement Fund and is within the reasonable range of awards approved by the Third
Circuit. Indeed, many courts in the Third Circuit that “have considered 25% to be the
‘benchmark’ figure for attorney fee awards in class action lawsuits, with adjustments up or
down for significant case-specific factors.” In re Warfarin Sodium Antitrust Litig., 212
FRD. 231, 262 (D. Del. 2002), affd, 391 F.3d 516 Gd Cir. 2004); see also In re
Viropharma Inc. Sec. Litig., No. 12-2714, 2016 WL 312108, at *17-18 (E.D. Pa, Jan. 25,
2016) (awarding attorneys’ fees of 30% in securities class action settlement and identifying
25% as the median fee amount in similarly sized securities class action settlements). This
factor weighs in favor of awarding the requested award of 25%.
The eighth factor weighs in favor of approving the requested award for attorneys’
fees. The claims in this case were independent of any investigative reports or enforcement
actions by any governmental entity. Thus, the value of the Settlement achieved is directly
attributable to the efforts of Class Counsel and supports the reasonableness of the requested
fee award. See Valeant, 2020 WL 3166456, at *14.
The requested award of fees and expenses relative to the size of the recovery and
constructive common fund is also below the rate of contingent fees that are routinely
negotiated in the private marketplace. Merck, 2010 WL 547613, at *12 (citing cases _
recognizing attorneys routinely contract for contingent fees between 30-40%). As such, the
ninth factor also supports approval of the requested award.

0 :

As to the final factor, the Plan of Allocation provides for a carefully tailored
apportionment of the Settlement Funds to Authorized Claimants whereby Settlement Class
Members’ recovery is calculated based on relevant factors designed to scale the degree of
relief in accordance with the degree of harm experienced by the Class Member. This
approach is tailored to individual Settlement Class Members’ Claims while being
sufficiently formulaic to avoid unnecessary impediments to efficiency or to produce
arbitrary results. This factor weighs in favor of approving the requested award of fees,
Weighing the above factors, the Court finds that a 25% fee is reasonable under the
percentage-of-recovery analysis. The attorneys’ fees awarded shall be $750,000, plus
postjudgment interest.
ii. Lodestar Cross-Check
Courts in this District are encouraged to “cross-check” the reasonableness of
percentage fee awards against the lodestar method, though lodestar multipliers do not
“trump the primary reliance on the percentage of common fund method.” See Rite Aid, 396
F.3d at 305-07. Class Counsel submitted declarations summarizing the time spent on this
litigation by attorneys and non-lawyer billing employees, along with their and their
respective rates. See ECF Nos. 72-3, 72-4. These declarations reflect reasonable billing
rates of $900-1,325 per hour for partners, $500-600 per hour for associates, and $325 per
hour for non-attorney analysts and paralegals. Jd. Applying these rates to the hours devoted
to this litigation by the respective employees yields a total lodestar amount for Class
Counsel of $1,060,767. ECF No. 72-1. This would yield a negative lodestar multiplier of
0.70. “[Blecause the lodestar amount is more than the requested attorneys’ fee award, the
multiplier indicates that the award is reasonable on its face.” Haught v. Summit Resources,
ELC, No. 1:15-cv-0069, 2016 WL 1301011 (M.D. Pa. Apr. 4, 2016). The fee award of 1/3
- of $750,000.00 is thus reasonable when cross-checked under the lodestar method and is
approved.
2. Expenses
Class Counsel request reimbursement of $75,000 in litigation expenses. Class
Counsel is “entitled to reimbursement of expenses that were adequately documented and
reasonably and appropriately incurred in the prosecution of the class action.” In re Safety
Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 108 (D.N.J. 2001). Each Class Counsel
firm submitted a declaration in support of its requests for fees and expenses, and each
included a chart summarizing the expenses incurred by category, which together totaled
$76,521.44, the bulk of which is attributable to expert fees, mediation fees, and expenses
ary

incurred in connection with providing notice to Class Members. See ECF Nos. 72-3 15,
72-4 7 5. These expenses were limited to “the type of expenses routinely charged to hourly
paying clients and, therefore, should be reimbursed out of the common fund.” Jn re Ocean
Power Techs., Ine., No. 14-3799, 2016 WL. 6778218, at #29 (D.N.J. Nov. 15, 2016) (listing
private investigator, photocopying, postage, filing fees, travel, mediation fees, and
damages expert among routine fees for which Plaintiff should be reimbursed from the
common fund); see also Cendant, 232 F. Supp 2d, at 344 (computer-assisted research),
Beltran v. Sos Ltd., No. CV 21-7454 (RBK/EAP), 2023 WL 319895, at *8 (D.N.J. Jan. 3,
2023), report and recommendation adopted, No. CV 21-7454 (RBK/EAP), 2023 WL
316294 (D.N.J. Jan. 19, 2023) (press releases and notice). Moreover, no objections have
been filed to the expense request. Accordingly, Class Counsel’s request for reimbursement
of $75,000.00 in expenses, plus postjudgment interest, is approved.
3. Case Contributions to Representative Plaintiffs
Class Counsel seek an award of $7,500 for each of the three named Plaintiffs to be
paid from the Settlement Fund (totaling $22,500). The PSLRA provides for “the award of
reasonable costs and expenses (including lost wages) directly relating to the representation
of the class to any representative party serving on. behalf of a class.” 15 U.S.C. § 78u-
4(a)(4). The purpose of service payments is “to compensate named plaintiffs for the
services they provided and the risks they incurred during the course of class action
litigation and to reward the public service of contributing to the enforcement of mandatory
laws.” Sullivan, 667 F.3d at 333 n. 65 (internal quotes and citation omitted), While awards
that come out of funds allocated for attorneys’ fees “need not be subject to intense scrutiny”
because the public’s interests are not directly affected, in contrast, where. “payments come
out of the common fund independent of attorneys’ fees, the Court must carefully review
the request for fairness to other class members.” Bredbenner y. Liberty Travel, Inc., No.
09-1248, 2011 WL 1344745, at *22 (D.NJ. Apr. 8, 2011) (citing Varacallo v.
Massachusetts Mut. Life Ins. Co., 226 F.R.D. 207, 257 (D.NJ. 2005)). “[Iincentive awards
will not be freely distributed without a substantial basis to demonstrate that the individual
provided services for the Class and incurred risks during the course of the litigation.” Altnor
v. Preferred Freezer Servs., Inc., 197 F. Supp. 3d 746, 770 (E.D. Pa. 2016) (citing
Varacallo, 226 F.R.D, at 258). “A rubber-stamped approval by the Court of an unjustified
incentive award is fodder for abuse.” /d. at 771.
“To determine whether a proposed incentive award is proper, some courts have
considered factors such as (1) “the risk to the plaintiff in commencing litigation, both
financially and otherwise”; (2) “the notoriety and/or personal difficulties encountered by
“1

the representative plaintiff’; (3) “the extent of the plaintiff's personal involvement in the
lawsuit in terms of discovery responsibilities and/or testimony at depositions or trial”; (4)
“the duration of the litigation”; and (5) “the plaintiff's personal benefit (or lack thereof)
purely in her capacity as a member of the class.” Alnor, F. Supp.3d at 770 (citing McGee
v. Ann's Choice, Inc., No. 12-2664, 2014 WL 2514582, at *3 (E.D. Pa. June 4, 2014)).
Service awards are the appropriate means by which to “compensate named plaintiffs for
the services they provided and the risks they incurred during the course of class action
litigation, and to reward the public service of contributing to the enforcement of mandatory
laws.” Bredbenner v. Liberty Travel, Inc., No. 09-905, 2011 WL 1344745, at *22 (D.N.I.
Apr. 8, 2011); see also Altnor, 197 F, Supp. At 772.
Each named plaintiff submitted a declaration in support of their attorneys’ requests
for service awards, See ECF Nos. 72-6 (Plaintiff Greenbaum), 72-7 (Plaintiff Mailey), 72-
8 (Plaintiff Pieroni), According to these declarations, the named plaintiffs collectively
devoted over 250 hours of work to this litigation and settlement. Class members were
notified that service awards may, in the aggregate, comprise up to $100,000 of the
Settlement Fund, and none objected. The aggregate service awatd of $22,500 (divided
evenly between the three named plaintiffs) is reasonable compensation for their effort and
for the risks they took in undertaking this litigation. The Court will approve the service
award request of $7,500 apiece for Plaintiffs Pieroni, Greenbaum, and Mailey.
Il. CONCLUSION
In sum, the Settlement, which has no objectors, is fair, reasonable, and adequate
under Fed. R, Civ. P. 23(c), notice was adequate, and certification of the proposed Class is
appropriate under Rules 23(a) and (b), Thus, Plaintiffs’ unopposed motion to certify the
Class and for final approval of the Class Action Settlement is GRANTED. Plaintiffs’
request for attorneys’ fees and expenses is also fair and reasonable, and accordingly, is also
GRANTED. Class Counsels’ request for a service fee award of $7,500 per named plaintiff
is GRANTED. An appropriate Order follows.

DATE: September 11, 2024
WILLIAWJ. MARTINI, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10656629. Public record. Not legal advice.