In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.

ORDER

MARGO K. BRODIE, UNITED STATES DISTRICT JUDGE:

The Court, having considered the Rule 23(b)(3) Class Plaintiffs' Renewed Motion for Class Representative Service Awards, (Renewed Mot. for Class Rep. Serv. Awards (“Pls.' Mot.”), Docket Entry No. 8980), and all of the submissions, arguments, and objections made with respect to the motion,^[1] approves the service awards and expenses in the amounts requested and as specified in this Order.

I. Background

The service awards requested in Class Counsel's renewed motion have been contested for nearly a decade. Although the Court assumes familiarity with the procedural history of this multidistrict litigation as set forth more extensively in prior decisions, see, e.g., In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 986 F.Supp.2d 207 (E.D.N.Y. 2013) (Interchange Fees I), rev'd and vacated, 827 F.3d 223 (2d Cir. 2016) (Interchange Fees II); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11 (E.D.N.Y. 2019)

(Interchange Fees III), the Court briefly reviews the procedural history of the service awards at issue.

In January of 2014, following a 2013 settlement between Class Plaintiffs and Defendants (the “2013 Settlement”), Judge John Gleeson denied without prejudice Class Counsel's request for $1.8 million in incentive payments for nine named Class Plaintiffs, finding that “Class Counsel ha[d] not come close to justifying such large awards.” In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 991 F.Supp.2d 437, 448 (E.D.N.Y. 2014). The Court directed Class Counsel to provide “documentation setting forth the approximate value of each Class Plaintiff's claim[,] . . . each one's proposed incentive award[,] . . . [and] any relevant authority, factual and legal, for the requested awards.” Id. at 449.^[2]

In January of 2015, the Court approved $950,000 in service awards and $35,643.01 in expenses, collectively, for nine named Class Plaintiffs. (See Order on Class Plaintiffs' Mot. For Class Rep. Serv. Awards (the “2015 Order”), Docket Entry 6395). In June of 2016, the Second Circuit vacated the Court's certification of the settlement class and reversed approval of the 2013 Settlement. See Interchange Fees II, 827 F.3d 223. About two years later, the Rule 23(b)(3) Class reached a new settlement with Defendants (the “2019 Settlement”), which the Court preliminarily approved on January 24, 2019, (Order, Docket Entry No. 7361), and finally approved on December 13, 2019, (Order, Docket Entry No. 7818).

In December of 2019, the Court approved $900,000 in service awards and $35,643.01 in

expenses for eight named Class Plaintiffs.^[3] (See Order granting Mot. For Class Rep. Serv. Awards (the “2019 Order”), Docket Entry No. 7823.) The Court found that the requested awards were comparable to the awards granted in cases with smaller settlement fund sizes and for cases that had proceeded for substantially shorter periods of time. (Id. at 1-2 (collecting cases).)

Further, the Court noted that “Class Representatives spent an enormous period of time and resources in serving as named representatives in this complex litigation that ha[d] spanned well over a decade.” (Id. at 2.) Finally, the Court noted that Class Counsel had not sought awards any greater than had been approved in the 2013 Settlement Agreement, even though Class Plaintiffs expended considerable additional efforts in the intervening six years, “including time spent as a result of another round of discovery.” (Id. at 3.)

In March of 2023, the Second Circuit affirmed the Court's approval of the 2019 Settlement “in all respects,” “with the exception that [the Court was] direct[ed] . . . to reduce the service award to class representatives” to account for time spent on lobbying activities. Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F.4th 704, 721-23, 727 (2d Cir. 2023). On May 2, 2023, the Second Circuit issued a mandate “direct[ing the Court] to reduce the service award to class representatives to the extent that its size was increased by time spent in lobbying efforts that would not increase the recovery of damages.” (Mandate of U.S.C.A. 2d Cir. dated May 2, 2023, Docket Entry No. 8823); Fikes, 62 F.4th at 727 (same). On September 29, 2023, Class Counsel renewed their motion for approval of service awards and moved for disbursement of funds from the settlement fund. (See Pls.' Mot.) In light of the Second Circuit's decision in

Fikes, Class Counsel reduced their request to account for time that the named plaintiffs spent on lobbying activities. (Pls.' Mem. 5-6.) On October 23, 2023, Unlimited Vacations and Cruises, Inc., USA Pets LLC, Gnarlywood LLC, and Quincy Woodwrights, LLC, (collectively, “Objectors”) and, separately, Kevan McLaughlin filed objections to Class Counsel's motion. (See Objectors' Opp'n; McLaughlin Opp'n.)

II. The Court approves the requested service awards and expenses

Plaintiffs argue that “[i]n accordance with the Second Circuit's direction, the Court should reduce the service awards to the extent they reflect time spent lobbying.” (Pls.' Mem. 5.) They assert that “[o]nly four of the nine Class Representatives devoted time to lobbying,” (id.), and request that the service awards be reduced by $6,879.00 as a result, (id. at 6). Plaintiffs argue that “[i]n all other respects, . . . the Court's previous Service Award Order should remain undisturbed,” because “no good reason exists for any objector to once again battle for the Court's decision regarding service awards.” (Id.; see also id. (“[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.” (quoting Off. Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003))).)

Objectors argue that “[t]he Court of Appeals intended [the Court] to focus on activity that meaningfully contributed to the pursuit of (b)(3) damages, only.” (Objectors Opp'n 1.) They contend that the Second Circuit would not have “reversed and remanded” over $6,879 - an amount they describe as “de minimis.” (Id. at 2.) Instead, they contend that the Second Circuit's mandate “clearly requires [the] Court to consider the components that form the basis for the incentive awards.” (Id.) They also argue that the Court failed to consider that the Class Representatives are legal entities that should only be compensated for time attributable to the

corporate entity, as opposed to the “personal-time hours their employees voluntarily gave to the litigation cause.” (Id.) Specifically, Objectors argue that it is “improper to focus on the claimed time of Mitch Goldstone and Michael Schumann, as opposed to the claims of the respective businesses in which they hold ownership interests.” (Id. at 3.) Finally, Objectors contend that Class Counsel interpreted “lobbying efforts” too narrowly and that the service awards should be further reduced for time spent “blogging and [on] social media.” (Id. at 5-7.)

Objector Kevan McLaughlin argues that the Court “should exercise [its] solid discretion to deny service awards, rather than [its] nebulous discretion to award them.” (McLaughlin Opp'n 2.) McLaughlin argues that service awards “are illegal under the common-fund doctrine established in Trustees v. Greenough, 105 U.S. 527, 537-38 (1882),” but concedes that Second Circuit law permits service awards. (Id. (first citing Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 96 (2d Cir. 2019); and then citing Hyland v. Navient Corp., 48 F.4th 110, 123-24 (2d Cir. 2022)).) McLaughlin recognizes that the Second Circuit in Fikes “found that it was bound to follow its own precedents of Melito and Navient,” even though it had expressed reservations about the legality of service awards. (Id. at 3 (citing Fikes, 62 F.4th at 720).) McLaughlin also concedes that this Court “is, of course, bound to follow the mandate of the Second Circuit.” (Id. at 4.) Ultimately, McLaughlin argues that the Court “should exercise its discretion to decline the requested awards entirely,” because “[d]enial of the...