A bit more on Berger & Montague:
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Judicial Commendations
The standing of Berger & Montague, P.C. in successfully conducting major securities and antitrust litigation has been recognized by numerous courts. Examples are as follows:
In In re AM International Securities Litigation, approving an approximate $20 million settlement in cash and warrants, Judge Sprizzo addressed Lead Counsel, including members of the firm, as follows:
[O]bviously you are all able lawyers. And I think the case was handled -- and I will say it for the record so you can put it in your next set of papers -- at least in my view, competently and expertly...
In In Re American Integrity Securities Litigation, CCH Fed. Sec. L. Rep. Para. 94,738 at p. 93,989 (E.D. Pa. 1989), where Berger & Montague was sole lead counsel, Judge Shapiro cited "the excellent results obtained" and awarded lead counsel an additional multiplier "warranted by the high quality of work including the management and coordination to avoid duplication of effort and ensure a prompt and efficient resolution of the litigation."
In In re Art Materials Antitrust Litigation, 1984 CCH Trade Cases Para. 65,815 (N.D. Ohio 1983), where the firm and Merrill Davidoff were co-lead counsel, Judge Krupansky, who had been elevated to the Sixth Circuit Court of Appeals, commented at p. 67,417:
Finally, the court unhesitatingly concludes that the quality of the representation rendered by counsel was uniformly high. The attorneys involved in this litigation are extremely experienced and skilled in the prosecution of antitrust litigation and other complex actions. Their services have been rendered in an efficient and expeditious manner, but have nevertheless been productive of a highly favorable result.
In Bogosian v. Gulf Oil Corp., 621 F. Supp. 27 (E.D. Pa. 1985), a nationwide antitrust class action wherein Berger & Montague was lead counsel, Judge Van Artsdalen recognized the efforts of class counsel in negotiating settlements including injunctive relief on the eve of trial in the face of severe obstacles:
As to the quality of the work performed, although that would normally be reflected in the not immodest hourly rates of all attorneys, for which one would expect to obtain excellent quality work at all times, the results of the settlements speak for themselves. Despite the extreme uncertainties of trial, plaintiffs' counsel were able to negotiate a cash settlement of a not insubstantial sum, and in addition, by way of equitable relief, substantial concessions by the defendants which, subject to various condition, will afford the right, at least, to lessee-dealers to obtain gasoline supply product from major oil companies and suppliers other than from their respective lessors. The additional benefits obtained for the classes by way of equitable relief would, in andof itself, justify some upward adjustment of the lodestar figure. 621 F. Supp. at 31.
In Charal v. Andes, 88 F.R.D. 265, 267 (E.D. Pa. 1980), Judge Bechtle noted:
...Counsel in this case are highly experienced in securities litigation and have enjoyed nationwide respect in this area....
In In re Coleco Securities Litigation, Master File No. 83 Civ. 9199 (S.D.N.Y.), where the firm was the lead counsel, the court in approving the settlement stated in its opinion at pp. 28-29:
... I just want to comment on one thing and that is the point that has been made that the litigation has been conducted without unnecessary frills or consumption of time. And I must say that apart from my own observations of the progress of this case I have consulted with the magistrate who shares the same view.
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I am satisfied that able and sophisticated counsel on both sides have pursued the case on the merits and the fact that they are being generously compensated for their efforts is entirely as it should be.
In Gross, et al. v. National Liquid Reserves, Inc., et al., CCH Fed. Sec. L. Rep. Para. 99,618, at p. 97,424, the court found that:
Counsel...are highly respected members of the bar and have substantial experience in shareholder class and derivative actions.
Furthermore, the court stated that "the actions were resolved with great efficiency..." at p. 97,246.
At the June 5, 1987 hearing in In re E.F. Hutton Banking Practices Litigation, where the firm was lead counsel, Judge Knapp stated in his opinion at pp. 35-36:
[I] will say without question that I think the work was highly competent.... I will state unequivocally, I think the work has been extraordinarily competent.
In In re Master Key Antitrust Litigation, [1978-1] Trade Cases (CCH) Para. 61,887 at pp. 73,725-73,726 (D. Conn. 1977), where Berger & Montague (Mr. Montague) was co-lead counsel and co-lead trial counsel, Judge Blumenfeld expressly found:
. . . The work of the Berger firm showed a high degree of efficiency and imagination, particularly in the maintenance and management of the national class actions.
This firm was one of the lead counsel in In re Oak Industries Securities Litigation. In approving a $33 million cash settlement, the Honorable Harry R. McCue stated in his opinion at pp. 24-30:
[T]his is an outstanding achievement, and it has been rarely achieved or equaled anywhere in the United States in similar class action securities litigation.
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There can be no doubt that the public good was fully served by the attorneys for the plaintiffs in this case, because they invested their own time, their own money, they invested their special skills and knowledge to vindicate the rights and interests of the thousands of investors who invested their money and placed their trust in the integrity of the securities market.
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I conclude that the achievement of plaintiffs' counsel under any of those tests was superior.
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I think that the manner in which this case was handled and litigated by counsel for each of the defendants and counsel for the plaintiffs, this litigation, the way this was conducted, should serve as a textbook example of how these cases should be conducted. * * *
I think this is an example of how, with the combined skill, wisdom and experience of attorneys representing the plaintiffs and attorneys who are similarly skilled and experienced and wise representing the defendants, they sat down and resolved a very difficult situation; and if this case was in the hands of less-experienced, less-skilled, less-wise attorneys, I predict that this could have turned into a disaster.
Judge Joseph F. Anderson, Jr., at the final settlement hearing in In re Policy Management Systems Corporation, Civil Action No. 3:93-0807-17 (D. S.C.), approved a $31 million cash settlement plus accrued interest awarding 30% of the fund and expenses and interest on both sums, where Sherrie R. Savett served as co-lead counsel. He stated on May 25, 1995:
I don't have a problem at all approving the settlement. In light of what you've said today and your submission to the Court and I am familiar with the case . . . it was a sharply litigated case, with good lawyers on both sides and I think it's an ideal case for settlement. It's the largest settlement I've been called upon to approve in my eight years as a judge.
In In re Revco Securities Litigation, Case No. 1:89CV0593, Order (N.D. Oh. September 14, 1993), reported at, inter alia, 1993 Fed. Sec. L. Rep. (CCH) Para. 97,809 (N.D. Ohio 1993), where the Honorable William K. Thomas, Senior District Judge for the United States District Court for the Northern District of Ohio, made the following observations:
In the proceedings it has presided over, this court has become directly familiar with the specialized, highly competent, and effective quality of the legal services performed by Merrill G. Davidoff and Martin I. Twersky, Esq. of Berger & Montague...
...Examination of the experience-studded biographies of the attorneys primarily involved in this litigation and review of their pioneering prosecution of many class actions in antitrust, securities, toxic tort matters and some defense representation in antitrust and other litigation, this court has no difficulty in approving and adopting the hourly rates fixed by Judge Aldrich.
In In re Sequoia Systems, Inc. Securities Litigation, Civ. 93-11331-WD (D. Mass., Order of September 10, 1993), where Todd S. Collins was lead counsel, Judge Woodlock granted plaintiffs' counsel fee request on the basis of:
... the evaluation that I've made of this case and the quality of the counsel involved in this case and the speed with which relatively complex litigation has been resolved. I think that is a function of the quality of the counsel involved, their ability to get to the core of the case, the jugular of the case promptly, and effect a prompt resolution. That prompt resolution is a time value to the members of the class themselves.
In Ratner v. Bennett, Case No. 92-4701 (E.D. Pa., Memorandum of May 8, 1996), a case brought on behalf of bank stock purchasers in which Todd S. Collins was lead counsel, Judge Broderick wrote in his opinion approving the settlement and awarding attorney's fees and costs:
The Court's review reveals that the class members were well served by attorneys who are highly experienced and nationally recognized in class action litigation generally and securities litigation in particular.
In Spawd, Inc. and General Generics v. Bolar Pharmaceutical Co., Inc., Civil Action No. PJM-92-3624 (D. Md.), an antitrust price-fixing case, in approving the settlement and attorneys' fees, on October 28, 1994, the Honorable Peter J. Messitte described plaintiffs' lead counsel (Merrill G. Davidoff of Berger & Montague, P.C.) as follows:
.... although we will visit this again at the time of attorneys' fees, the counsel have been of the highest ability, frankly on both sides, which seems to me to mean not only does one reward able plaintiffs' counsel but they get rewarded because they deal with able defense counsel, more so.
Transcript of Settlement Approval Hearing, October 28, 1994 at p. 104. The court further noted:
Obviously, high skill was required to perform the services here, and I'll revisit the issue of experience and ability in a moment, but this was not the kind of case that an average lawyer without special skill in the class action anti-trust field, it seems to me, could handle.
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The experience and ability of the attorneys I have mentioned earlier, in my view in reviewing the documents, which I have no reason to doubt, the plaintiffs' counsel are at the top of the profession in this regard and certainly have used their expertise to craft an extremely favorable settlement for their clients, and to that extent they deserve to be rewarded.
Transcript of Settlement Approval Hearing, October 28, 1994 at pp. 112-114.
In In re Subaru of America, Inc. Shareholder Litigation, where Sherrie R. Savett served as co-lead counsel, Judge Lowengrub stated:
I think that the settlement achieved through the very skillful and diligent work of counsel on behalf of the shareholders was excellent. I cannot just say that it was -- it is fair and reasonable. It's an excellent result.
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It was done without the intervention of the Court. The Court was not burdened with a multiplicity of motions, management conferences, et cetera, that generally raise their head in this type of litigation or in any complex litigation.
Judge Stewart Dalzell, at the final settlement hearing of In re U.S. Bioscience Securities Litigation, Civil Action No. 92-0678, (E.D. Pa.) approved a $15.25 million settlement of a heavily litigated biotechnology securities class action, where Sherrie R. Savett served as co-lead counsel. He stated on April 4, 1994:
The quality of lawyering on both sides, but I am going to stress now on the plaintiffs' side, simply has not been exceeded in any case, and we have had some marvelous counsel appear before us and make superb arguments, but they really don't come any better than Mrs. Savett . . . , and the arguments we had on the motion to dismiss [Mrs. Savett argued the motion], both sides were fabulous, but plaintiffs' counsel were as good as they come.
Transcript pp. 39-40.
Judge Dalzell went on to describe the services of Mrs. Savett as "superb". (Transcript p. 46)
In In re Warner Communications Securities Litigation, 618 F. Supp. 735 (S.D.N.Y. 1985), where the firm was one of the lead counsel, the court stated in its opinion at pp. 748-49:
...The quality of the work of plaintiffs' counsel on this case is also demonstrated by the efficient manner of prosecution. Rather than engaging in long months of extensive motion practice... plaintiff's counsel were able to successfully negotiate these issues with defendants and proceed directly to discovery on merits... This efficient prosecution enabled the plaintiffs' counsel to concentrate their energy on the complex issues of the lawsuit.
Judge Keenan further commented in his opinion:
The quality of work of plaintiffs' counsel on this case is also demonstrated by the efficient manner of prosecution.... At the settlement hearing, defense counsel conceded that plaintiffs' counsel constitute the "cream of the plaintiffs' bar." The court cannot find fault with that characterization. Id.
In Wolgin v. Magic Marker Corporation, 82 F.R.D. 168, 175 (E.D. Pa. 1979), where the Berger firm was lead counsel, Chief Judge Luongo stated:
...I am fully satisfied that [counsel for the named plaintiffs] are capable of conducting the proposed class action in a vigorous and efficient manner.
In awarding fees in the Magic Marker case, Judge Luongo noted that the settlements achieved in that action represented "an outstanding result by any standard" and that the application of the contingency and quality factors to the Berger firm's hours, the bulk of which "[were] attributable to the services of Sherrie R. Savett and Gary E. Cantor," would warrant increasing the Berger firm's lodestar "by a multiple of two." In re Magic Marker Securities Litigation, Fed. Sec. L. Rep. (CCH) at Para. 97,116 at p. 96,195 (E.D. Pa. 1979).
Similar statements appear in City of Detroit v. Grinnell Corporation, [1976-1] Trade Cases (CCH) Para. 60,913 at p. 68,981 (S.D.N.Y. 1976) (where Judge Metzner favorably commented on the skill of the predecessor firm to Berger & Montague); In re Anthracite Coal Antitrust Litigation, 81 F.R.D. 499, 502-03 (M.D. Pa. 1979) (Judge Muir); Hedges Enterprises, Inc. v. Continental Group Inc., 81 F.R.D. 461, 466 (E.D. Pa. 1979) (Judge Bechtle). In Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator Standard Sanitary Corp., [1974-2] Trade Cases (CCH) Para. 75-361 (E.D. Pa. 1974), Judge Harvey found that David Berger "has an unequaled national reputation as a plaintiffs' class action attorney" (at p. 98,157), that his "experience in national class action litigation . . . can hardly be equaled by any attorney in the country" (at p. 98,165), and that he "... was not only capable of successfully conducting a national class action litigation, but was also possessed of a visible track record which demonstrates his successes in this field". See also, PASA v. GAB, 352 F. Supp. 648, 651 (E.D. Pa. 1972); Lindy I, 341 F. Supp. 1077, 1090-91 (E.D. Pa. 1972); Philadelphia Electric Company v. Anaconda American Brass Co., 47 F.R.D. 557, 559 (E.D. Pa. 1969).
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