Saska v. Metro. Museum of Art
| Decision Date | 15 June 2017 |
| Citation | 57 Misc.3d 218,54 N.Y.S.3d 566 |
| Parties | Filip SASKA, Tomas Nadrchal, and Stephen Michelman, Plaintiffs, v. The METROPOLITAN MUSEUM OF ART, Defendant. |
| Court | New York Supreme Court |
Emery Celli Brinckerhoff & Abady LLP, for the Saska Plaintiffs.
Arnold & Porter Kaye Scholer LLP, for defendant.
Hiller, PC, for the Grunewald Plaintiffs, as objectors.
Anna St. John of the Competitive Enterprise Institute Center for Class Action Fairness, as objector.
By order dated November 10, 2016, the court granted preliminary approval of the parties' amended class action settlement agreement (the Settlement). See Dkt. 133 (the Preliminary Approval Decision).1 The parties now move for final approval of the Settlement and class certification. There are two objectors: (1) the Grunewald Plaintiffs, who object on the same grounds as in their opposition to preliminary approval;2 and (2) Anna St. John, on behalf of the Competitive Enterprise Institute Center for Class Action Fairness, who objects on the grounds that the Settlement is purportedly a worthless disclosure-only settlement and that the $350,000 in fees requested by plaintiffs' attorneys at Emery Celli Brinckerhoff & Abady LLP (ECBA) are excessive. The court reserved on the motion after oral argument. See 5/5/17 Tr. For the reasons that follow, the court grants plaintiffs' motion in all respects except for the $1,000 service awards sought for each of the three class representatives.
The history of this action and the related action commenced by the Grunewald Plaintiffs is set forth in the Preliminary Approval Decision and is not repeated here. Likewise, an extensive discussion of the Settlement's terms may be found in the Preliminary Approval Decision.3
At this juncture, the parties seek final approval of the Settlement, which principally requires the Museum to change its signs to more clearly and prominently inform the public that the listed admission prices are merely suggested, and not mandatory. Compare Dkt. 155 (), with Dkt. 153 at 47–53 (). The court does not believe a reasonable person is likely to be deceived by the new signage into thinking there is a mandatory $25 admission fee. Likewise, the court does not believe a reasonable person could compare the two signs side-by-side and conclude that the new sign is not a significant improvement over the old sign. Since the only claim being settled is a claim for injunctive relief to remedy the Museum's allegedly deceptive admission policy and attendant signage as violative of GBL § 349, the outcome achieved by the Settlement is outstanding.
As discussed in the Preliminary Approval Decision, there is no merit in the Grunewald Plaintiffs' contention that additional relief is warranted. The additional relief they seek would remedy claims that are not being settled (e.g., claims for monetary damages) or claims that were dismissed (i.e., claims under the Lease and the 1893 Statute). See Preliminary Approval Decision at 19 ( ). It would be unreasonable to require the parties' settlement to account for either of these types of claims. See id. at 20 () (citation and quotation marks omitted). The Settlement sufficiently remedies claims that are actually pending. The signs, already put in place, which clearly inform the Museum's patrons of the discretionary nature of their admission fee, are far less deceptive than the previous signs, where the word "Recommended" was in small print. This is particularly the case when taken together with the changes on the website and the kiosks.
That said, before granting final approval to a class action settlement, the court must first certify that the requisite factors militate in favor of approval and class certification. Here, the court will not separately discuss class certification because it has already done so in the Preliminary Approval Decision.
Preliminary Approval Decision at 22–23, accord Borden v. 400 E. 55th St. Assocs., L.P., 24 N.Y.3d 382, 399–400, 998 N.Y.S.2d 729, 23 N.E.3d 997 (2014). Simply put, this action is a textbook example of a case that is most amenable to resolution on a class-wide basis.
It is black-letter law that a court in granting final approval to class action settlement must weigh the following factors: "the likelihood of success, the extent of support from the parties, the judgment of counsel, the presence of bargaining in good faith, and the nature of the issues of law and fact." In re Colt Indus. S'holder Lit., 155 A.D.2d 154, 160, 553 N.Y.S.2d 138 (1st Dept.1990), aff'd as mod. 77 N.Y.2d 185, 565 N.Y.S.2d 755, 566 N.E.2d 1160 (1991) ; see Gordon v. Verizon Commc'ns, Inc., 148 A.D.3d 146, 156, 46 N.Y.S.3d 557 (1st Dept.2017) ().
The likelihood of plaintiffs prevailing in this case was highly uncertain. There is little doubt that a determination of whether the Museum's old signage was deceptive under GBL § 349 would have been a question for the finder of fact. It is axiomatic that all trials involve substantial risk and uncertainty. To hedge that risk and to avoid the extreme expense of electronic discovery, depositions, expert reports, and motion practice over class certification and summary judgment, as well as appeals of apparent legal questions of first impression, the Museum agreed to settle by offering to change its signage and admission policy in a manner that makes the voluntary nature of its patrons' contributions far more apparent. Indeed, if plaintiffs were to prevail on liability at trial, the court would have had to issue an injunction mandating new signage. The agreed-upon signage is not dissimilar to what the court would have ordered.
As discussed in the Preliminary Approval Decision, the court, much to the parties' chagrin, rejected the proposed signage in their original settlement agreement, and only agreed to grant preliminary approval after the signage was changed to its current form. Ergo, the court believes the new signage clearly and accurately informs the public of the Museum's admission policy. Given the court's belief that the signage is substantially similar to what plaintiffs would have obtained had they prevailed on the merits, the Settlement's result is a very good outcome. Hence, the court finds that first and fifth approval factors, the likelihood of success and the nature of the issues of law and fact, weigh heavily in favor of approval.
The next three factors—the extent of support from the parties, the judgment of counsel, and the presence of bargaining in good faith—also militate strongly in favor of approval. As explained in the Preliminary Approval Decision, there is no reason to doubt that the Settlement is the product of extensive arms' length negotiations between two New York law firms with excellent reputations. The court cannot overstate the thoughtfulness demonstrated by counsel to the unique legal issues in the case and their diligence in the lengthy, complex and protracted settlement process. Moreover, the court, as noted, had some involvement in the process that resulted in the final iteration of the signage, going so far as to reject the original version that had been the product of months of negotiations. From a process standpoint, the Settlement unquestionably meets the requisite standards for approval.
That said, in Gordon, the First Department added two new factors that must be considered when evaluating "proposed nonmonetary settlements of class action suits." Gordon, 148 A.D.3d at 158, 46 N.Y.S.3d 557. The first is "whether the proposed settlement is in the best interests of the putative settlement class as a whole." Id. This factor clearly weighs in favor of approval. The settlement class—people that paid to enter the Museum or purchased a membership since March 5, 2007—are getting the very injunctive relief they sought at the outset of the case: a clear, nondeceptive admissions policy. To the extent the settlement class includes individuals who wish to serve as class representatives in another action seeking damages, the Settlement does not foreclose that possibility. Only the three named class representatives are releasing their claims for monetary damages. Consequently, the class is getting a superior admissions policy immediately without giving up the possibility of a monetary damages recovery. There is no downside here.
In that regard, the fact that the Museum also is obtaining prompt certainty over its admissions policy is why the final Gordon factor—"whether the proposed settlement is in the best interest of the corporation"—is satisfied. See id. at 158, 46 N.Y.S.3d 557. The Museum is being relieved of the possibility of its old admissions policy giving rise to future liability (and attendant public relations concerns) for being deceptive by having the court certify now, instead of years down the line, that its new signage is not deceptive. The court would not have approved the new signage if it thought that a reasonable patron would be deceived by it. There is significant benefit to the Museum in knowing that it can put this legal issue to bed.
Turning now to the objections, the court finds them to be without merit. With respect to the Grunewald Plaintiffs, as noted, they did not proffer any objections other than those considered and rejected by the...
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