The opinion of the court was delivered by: Walls, District Judge
On August 4, 1998, the time of the selection of lead plaintiffs in this matter, *fn1 the Court announced that it would conduct an auction to determine the lowest qualified bidder to represent plaintiffs as lead counsel. In response, by September 17, 1998, nineteen firms, jointly and singly, submitted twelve bids in the following manner: Seven firms bid for appointment as lead counsel to the non-Prides claims, two firms as to both the Prides and non-Prides claims, and three firms for Prides claims only. It is of utmost concern to the Court that this opinion, the bidders' identities and the contents of their bids be sealed until resolution of this matter. This is done to maintain adversarial integrity, that of strategy and tactics, which is the prerogative of all parties, plaintiffs and defendants. Accordingly, each bid is identified only by a number, 1 of 12 to 12 of 12.
Basic liability in this case has been conceded by the major corporate defendant. No one needs to be reminded that it was Cendant's public admission on April 15, 1998 that spawned this litigation. There are other defendants, but it is doubtful that these other defendants, en masse, will resolve these matters before Cendant. The Court does not believe, at this time, that there are intricate damage issues, but does recognize the need to explore the nature and extent of any involvement of the other defendants, individual and corporate, and the representations made by Cendant's corporate predecessor(s) in 1997 and earlier years.
The Court, for the purposes of analysis, gave greater emphasis to the middle sections of the bid grid, that is, from discovery through summary judgment and from summary judgment through trial. It is noteworthy that this analysis comports with the bidders' implicit evaluation of the case, evidenced by their bids. The Court now briefly reviews each of the bids. The most important criteria of the Court were, among others:
1)Litigation experience, including
a) demonstrated ability to try successfully a case, if necessary, and
b) demonstrated ability to achieve an effective resolution by settlement;
2)fiscal ability to maintain the litigation; and
3)a fee schedule that represents a realistic incentive to pursue a determined resolution of the plaintiffs' cause at reasonable cost.
Bidder 1 of 12 submitted a bid with a declining fee scale, ranging from 2.5% to 1.5% from discovery through a summary judgment motion, and 4.5% to 2.0% from summary judgment through trial. This fee schedule is not a realistic evaluation of the efforts necessary to obtain optimum results for the plaintiffs or to try this case, if required. The bid is contrary to the interests of the putative class.