memorandum - fees and costs - final
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28 1MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
CHAVEZ & GERTLER, LLPJonathan Gertler (Bar No. 111531)42 Miller AvenueMill Valley, CA 94941Telephone: (415) 381-5599Facsimile: (415) 381-5572
CLARK & MARKHAMR. Craig Clark (Bar No. 129219) David R. Markham (Bar No. 071814)600 B Street, Ste. 2130San Diego CA 92101Telephone: (619) 239-1321Facsimile: (619) 239-5888
Attorneys for PlaintiffAdditional counsel listed on signature page.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
LISA L. CONNELL, an individual, on behalfof herself, and on behalf of all personssimilarly situated,
Plaintiffs,
vs.
SUN MICROSYSTEMS, INC, a DelawareCorporation with its principal place ofbusiness in California, and Does 1 to 100.
Defendants.
Case No. RG06252310
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF MOTIONFOR AWARD OF ATTORNEY FEES ANDLITIGATION EXPENSES
[C.R.C. § 3.769]
Date: November 12, 2008Time: 3:00 p.m.
Dept: 17Judge: Hon. Steven Brick
Complaint filed: January 25, 2006 Trial date: None set
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28 iMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
TABLE OF CONTENTS
I. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. THE ATTORNEYS' FEES REQUESTED ARE FAIR AND REASONABLE AND SHOULD BE APPROVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. THE AGREEMENT FOR THE PAYMENT OF FEES AND EXPENSES IS APPROPRIATE AND SHOULD BE ENFORCED . . . . . . . . . . . . . . 6
B. CLASS COUNSEL’S FEE AWARD IS APPROPRIATELY AWARDED UNDER THE LODESTAR/MULTIPLIER APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. THE SERRANO AND LEALAO FACTORS WARRANT LODESTAR ENHANCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. THE NOVELTY AND DIFFICULTY OF THE QUESTIONS INVOLVED AND THE SKILL DISPLAYED IN PRESENTING THEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. THE EXTENT TO WHICH THE NATURE OF THE LITIGATION PRECLUDED OTHER EMPLOYMENT AND ADDITIONAL FACTORS SET FORTH IN LEALAO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. THE CONTINGENT NATURE OF THE FEE AWARD, BOTH FROM THE VIEW OF EVENTUAL VICTORY ON THE MERITS AND THE POINT OF VIEW OF ESTABLISHING ELIGIBILITY FOR AN AWARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. THE REQUESTED AWARD COMPARES FAVORABLY TO THE RESULT ACHIEVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
IV. CLASS COUNSEL IS ALSO ENTITLED TO REIMBURSEMENT OF THE OUT OF POCKET COSTS AND EXPENSES INCURRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
V. THE CLASS REPRESENTATIVES SHOULD RECEIVE THE REQUESTED SERVICE AWARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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28 iiMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
TABLE OF AUTHORITIES
Cases: Page
Arenson v. Board of Trade, 372 F.Supp. 1349, 1354 (N.D. Ill. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11
Bagwell v. Florida Broadband, 2005 WL 1962562, (S.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13
Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D.Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Blum v. Stenson, 465 U.S. 886, 902 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Bogosian v. Gulf Oil Corp., 621 F. Supp. 27 (E.D. Pa. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Craft v. County of San Bernardino, 2008 U.S. Dist. LEXIS 27526 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 338 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7
Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1431-32 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11
Dunk v. Ford Motor Co., 48 Cal.App.4th 1794, 1801 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Evans v. Jeff D., 475 U.S. 717, 734-35, 738 n.30 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Glendora Community Redevelopment Agency v. Demeter 155 Cal.App.3d 465, 479- 481 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hickman v. United States, 105 Lab. Cas. (CCH) P34,866; 1986 U.S. Cl. Ct. LEXIS 826 (1986) . . . . . . . . . . . . . . . . . . . 4
Hobbs v. Roth Staffing Cos., 2007 Cal. App. Unpub. LEXIS 796 (January 30, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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28 iiiMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
In re Activision Sec. Litigation, 723 F. Supp. 1373, 1377-78 (N.D. Cal. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16
In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
In re Immune Response Secs. Litig., 497 F. Supp. 2d 1166, 1176 (S.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
In re King Resources Co. Securities Litig., 420 F.Supp. 610, 634 (D. Colo. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11
In re Remeron Direct Purchaser Antitrust Litigation, 2005 U.S. Dist. LEXIS 27013 (D.N.J. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In Re Rite-Aid Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
In re RJR Nabisco, Inc. Sec. Litig., Fed. Sec. L. Rep. (CCH) P 96,984 (S.D.N.Y. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
In re Warner Communications Sec. Lit, 618 F.Supp. 735, 749-50 (S.D. N.Y. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Koppinger v. American Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13
Lealao v. Beneficial California, 82 Cal.App.4th 19, 32 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 6, 7, 9, 12, 14
McKittrick v. Gardner, 378 F.2d 872, 875 (4th Cir.1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1098 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 10
Powers v. Eichen, 229 F.3d 1249, 1256 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Press v. Lucky Stores, Inc.. 34 Cal. 3d 311, 322 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rabin v. Concord Assets Group Inc., 1991 U.S. Dist. LEXIS 18273, Fed. Sec. L. Rep. (CCH) ¶ 96,471 (S.D.N.Y. 1991) . . . . . . . . 7
Raper v. State of Iowa, 688 N.W.2d 29, 43 (Iowa 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rausch v. Hartford Fin. Servs. Group, 2007 U.S. Dist. LEXIS 14740 (D. Ore 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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28 ivMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
Rebney v. Wells Fargo Bank, 232 Cal.App.3d 1344, 1347 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rievman v. Burlington Northern Railroad Co., 118 F.R.D. 29, 35 (S.D.N.Y. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7
Roberts v. Texaco, Inc., 979 F. Supp. 185, 197 (S.D.N.Y. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Serrano v. Priest, 20 Cal.3d 25, 49 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 9, 10
Shillinglaw v. System Works, Inc., 1993 U.S. Dist. LEXIS 21358 (N.D. Ga. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Steiner v.BOC Financial Corp., 1980 U.S. Dist. LEXIS 14561; Fed.Sec.L.Rep.(CCH) ¶ 97,656 (S.D.N.Y. 1980) . . . . . . . . . 13
Sternwest Corp. v. Ash 183 Cal.App.3d 74, 75 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7, 9, 14
Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11
Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1176 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Weiss v. Mercedes-Benz of N. Amer., Inc., 899 F. Supp. 1297(D.N.J. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 9, 10
Statutes:
29 C.F.R. § 541.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13
29 C.F.R. § 541.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13
Secondary Authorities:
3 Newberg & Conte, Newberg on Class Actions, §14.03 at 14-5 (3d ed. 1992) . . . . . . . . . . . . . . 9, 14
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1 The procedural history of this action, the discovery conducted, the settlement negotiations, and therisks of litigation and of establishing liability and damages at trial are described in Plaintiff's Memorandum in Support of Settlement (the “Settlement Memorandum”) to which the Courts' attentionis respectfully invited.
1MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
I. PRELIMINARY STATEMENT
After over two years of litigation, culminating in a full-day mediation before preeminent wage and
hour litigator and mediator, Mark Rudy, Class Counsel successfully negotiated a Settlement which provides
for a common fund of $5,800,000.00, plus the employer’s share of payroll taxes, as payment in full of all
of Plaintiffs’ claims arising from the events described in the Complaint, including Class Counsel’s
attorneys’ fees costs and expenses, service payment to the Class Representative and the cost of class notice
and claims administration. This Court granted preliminary approval of the Class Settlement on July 24,
2008 and notice of the Settlement was mailed to the Class Members as ordered by the Court.
Not one Class Member has objected to the requested attorney fee award of $1,740,000.00 and the
award is not opposed by Defendant Sun Microsystems, Inc. (“Sun”). The award is most certainly reasonable
and appropriate under the lodestar multiplier approach, which has been adopted by California Courts.
Lealao v. Beneficial California, 82 Cal.App.4th 19, 32 (2000). In this case, Class Counsel’s combined
lodestar totaled $1,625,567.75, which means the requested fee award represents Class Counsel’s lodestar
with a nominal multiplier of 1.07. Further, the requested fee award compares favorably when “cross-
checking” the amount against the value of the class recovery, because the requested fee award represents
30% of the common fund. See Lealao, supra, 82 Cal. App. 4th at 24, 45.
The requested fee award of $1,740,000 is no doubt reasonable and appropriate in light of the novelty
of this case, the amount and difficulty of the work required, the risks undertaken, and the results achieved,
all of which support this award representing only a nominal multiplier enhancement of Class Counsel’s
lodestar.1 Serrano v. Priest, 20 Cal.3d 25, 49 (1977). The requested multiplier is therefore warranted and
well within the accepted range for class action attorneys fee multipliers. Wershba v. Apple Computer, 91
Cal. App. 4th 224, 255 (2001) (“multipliers can range from 2 to 4 or even higher”). Class Counsel also
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28 2MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
respectfully requests that this Court approve the payment of costs in the amount of $49,437.52 and the Class
Representative’s incentive award in the amount of $25,000 for Plaintiff Lisa Connell.
II. SUMMARY OF ARGUMENT
In California, Courts start with the lodestar-multiplier method for the determination of an attorney’s
fee award and then utilize “the common federal practice of ‘cross-checking’ the lodestar against the value
of the class recovery.” Lealao, 82 Cal. App. 4th at 45.
In this case, Class Counsel’s lodestar is the reasonable number of hours expended for the services
provided with rates calculated at prevailing market rates for the same services if performed on an hourly
basis for hourly clients in hourly cases. See Decl. Gertler at ¶ 10. The lodestar figure must be adjusted
upward based on the consideration of the specific factors in order to fix the fee award at the fair market
value for the legal services provided in a contingent fee case. Lealao, 82 Cal.App.4th at 40, citing Press
v. Lucky Stores, Inc.. 34 Cal. 3d 311, 322 (1984). As stated by the Courts in Lealao, and Serrano these
enhancement factors include the following:
(a) The novelty and difficulty of the questions presented;
(b) The skill of the attorneys;
(c) The preclusion of other employment;
(d) The contingent risk of the action;
(e) The results achieved;
Consideration of each of these factors in this case supports a substantial enhancement or multiplier of Class
Counsel’s lodestar.
In defining a reasonable fee, the Court’s should mimic the marketplace for cases involving a large
contingent risk such as this one. Lealao, 82 Cal.App.4th at 49. Id. In so doing, the Court should recognize
that Class Counsel devoted 3,232.60 attorney and paralegal hours and advanced $49,437.52 in costs to
prosecute this case, risking that none of this expenditure of time or money would be recouped. Other courts
which have reviewed similar contingent fee class action cases routinely approved the award of multipliers
of between 2 and 4. Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) (“multipliers can range
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28 3MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
from 2 to 4 or even higher”); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) (3.65
multiplier approved because of substantial risk); Rievman v. Burlington Northern Railroad Co., 118 F.R.D.
29, 35 (S.D.N.Y. 1987) ("In recent years, multipliers between 3 and 4.5 have been common"). Here, Class
Counsel seeks a nominal lodestar multiplier of 1.07, which is well below the accepted range for class action
lodestar multipliers.
There is a substantial difference between the risk assumed by attorneys being paid by the hour and
attorneys working on a contingent fee basis. The attorney being paid by the hour can go to the bank with
his fee. Powers v. Eichen, 229 F.3d 1249, 1256 (2000). The attorney working on a contingent basis can
only log hours while working without pay towards a result that will hopefully entitle him to a market place
contingent fee taking into account the risk and other factors of the undertaking. Id., at 1257. Otherwise,
the contingent fee attorney receives nothing. Id. In the case at bar, Class Counsel subjected themselves to
this contingent fee market risk in this all or nothing contingent fee case wherein the necessity and financial
burden of private enforcement makes the requested award appropriate. Decl. Gertler at ¶ 10.
A $1,740,000.00 contingent fee award, representing a nominal lodestar multiplier of 1.07, mimics
the market place because this was the amount negotiated in arms-length adversarial negotiations between
opposing counsel who deal in the market place and subject themselves to market forces on a daily basis.
Lealao, 82 Cal.App.4th at 48. This amount was also the amount recommended and approved by the
mediator as reasonable and appropriate. This action is an example of a private action that resulted in the
enforcement of substantive provisions of labor law that substantially benefits the members of the Class
financially and will benefit the public interest by deterring others from committing similar acts. Given the
unique reliance of our legal system on private litigants to enforce substantive provisions of law in class
actions, attorneys providing these substantial benefits should be paid an award equal to the amount
negotiated in private bargaining that takes place in the legal market place. Deposit Guaranty Nat. Bank,
Jackson, Miss. v. Roper (1980) 445 U.S. 326, 338, rehg. denied, 446 U.S. 947.
At the time this case was brought, the result was far from certain. Sun’s practice at issue here had
been in place for years before 2002. Sun’s numerous defenses to the case created difficulties with proof and
novel legal issues in the uncharted waters of overtime wages with respect to IT professional and technical
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2 In Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1431-32 (2006), the Court of Appealrecently affirmed an order denying class certification to a class of employees who claimed that theywere denied overtime pay holding that the issue of whether an exemption applied would have to beindividually determined for each class member, which meant that common issues did not predominate. See also Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440 (2007) (upholding the decertification ofan overtime class action).
3 See e.g. Dunbar v. Albertson's, Inc., 141 Cal. App. 4th at 1431-32; Shillinglaw v. System Works,Inc., 1993 U.S. Dist. LEXIS 21358 (N.D. Ga. 1993) (holding that a computer programmer/analyst wasan exempt administrative employee); Hickman v. United States, 105 Lab. Cas. (CCH) P34,866; 1986
4MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
support engineers, which Class Counsel was required to overcome in order to be successful. For example,
were the Plaintiff’s and Class Members’ claims barred from recovery by the “administrative exemption”
by analogy set forth in 29 C.F.R. Section 541.402 as was held in Koppinger v. American Interiors, Inc., 295
F. Supp. 2d 797 (N.D. Ohio 2003)? Decl. Gertler at ¶ 10(e). Did Class Members perform work that was
“directly related to management or general business operations” within the meaning of the administrative
exemption and/or 29 C.F.R. § 541.201(a)(b)? Were IT-related positions exempt under the professional
exemption as was held in Bagwell v. Florida Broadband, 2005 WL 1962562, (S.D. Fla. 2005)? Would
Plaintiff be able to maintain class certification at trial and thereby recover on behalf of Sun’s employees?2
Could the hours of overtime be accurately calculated for the Class Members? All of these issues presented
very substantial risks, any one of which could have resulted in the Class receiving nothing.
The Settlement was possible only because Class Counsel had been able to achieve class certification
for all Class Members and convince Sun that Class Counsel could potentially prevail on the novel legal
issues regarding overtime compensation for IT personnel and technical support engineers and overcome
difficulties in proof as to monetary relief.
In successfully navigating these hurdles so as to convince Sun to settle, Class Counsel displayed
skills beyond those that might be expected of attorneys of comparable expertise or experience. Here, Class
Counsel was pursuing a difficult and risky claim where previous overtime cases involving computer
programmers and IT personnel had failed to establish liability for overtime, failed to obtain class
certification without a representative for each job position and/or failed to obtain monetary recovery for
these employees.3
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U.S. Cl. Ct. LEXIS 826 (August 8, 1986) (electronics technician and computer equipment analyst wereexempt under the administrative exemption); Raper v. State of Iowa, 688 N.W.2d 29, 43 (Iowa 2004);Hobbs v. Roth Staffing Cos., 2007 Cal. App. Unpub. LEXIS 796 (January 30, 2007). While Hobbs hasno precedential value since the case is not a published opinion, the holding further supports theconclusion that there was a significant risk that class certification might also have been denied in thiscase.
5MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
Class Counsel’s skill in presenting this case in a novel way to overcome the difficulties that
prevented recovery in previous unsuccessful computer programmer overtime wage cases is all the more
compelling given the exceptional and well recognized quality of Sun’s Counsel from the prestigious,
capable, and well-staffed law firm of Wilson, Sonsini, Goodrich & Rosati PC. See In re King Resources
Co. Securities Litig., 420 F.Supp. 610, 634 (D. Colo. 1976); Arenson v. Board of Trade, 372 F.Supp. 1349,
1354 (N.D. Ill. 1974). To represent the Class on a contingent fee basis, Class Counsel had to forego
compensable hourly work on other cases at the same rate so as to devote the necessary time and resources
to this contingent case. In so doing, Class Counsel gave up the hourly work that a firm can bank on for the
risky contingent fee work in this case which could have paid Class Counsel nothing. Decl. Gertler at ¶
10(f); Powers, supra, 229 F.3d at 1256.
Class Counsel also requests an award of costs in the amount of $49,437.52. Class Counsel expended
$49,437.52 in unreimbursed costs in prosecuting this action on behalf of the Class. The Notice informed
the Class that Class Counsel would seek reimbursement of costs not to exceed $125,000.00, and not one
member of the Class objected to the reimbursement of costs and expenses. Finally, Class Counsel requests
that the Court approve payment of the agreed service award to Plaintiff Lisa Connell in the amount of
$25,000 for her work and participation in this case. The payment of service awards to successful class
representatives is appropriate and the amount of $25,000 is well within the currently accepted range. See
e.g. Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995) (incentive award
of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990)
(incentive awards of $ 55,000). Sun has agreed to this service award to the Plaintiff, and after notice to the
Class of this requested service award, not one member of the Class has objected to the award.
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28 6MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
For all of these reasons as discussed in detail herein, Plaintiff respectfully submit that the cost award
of $49,437.52, the attorney’s fee award of $1,740,000 (representing Class Counsel’s lodestar with a 1.07
multiplier), and Plaintiff Connell’s incentive award of $25,000 should be awarded in accordance with the
Settlement Agreement.
III. THE ATTORNEYS' FEES REQUESTED ARE FAIR AND REASONABLE AND SHOULDBE APPROVED
A. THE AGREEMENT FOR THE PAYMENT OF FEES AND EXPENSES ISAPPROPRIATE AND SHOULD BE ENFORCED
The United States Supreme Court has ruled that the parties to a class action properly may negotiate
not only the settlement of the action itself, but also the payment of attorneys' fees. See Evans v. Jeff D., 475
U.S. 717, 734-35, 738 n.30 (1980). In Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), the Supreme Court
held that negotiated, agreed-upon attorneys’ fee provisions are the ideal towards which the parties should
strive:
A request for attorney's fees should not result in a second major litigation. Ideally, of course,litigants will settle the amount of a fee." Id.
California’s Supreme Court agrees:
We do not want a [trial] court, in setting an attorney's fee, [to] become enmeshed in ameticulous analysis of every detailed facet of the professional representation. It . . . is not ourintention that the inquiry into the adequacy of the fee assume massive proportions, perhapsdwarfing the case in chief.
PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1098 (2000); see also Lealo, supra, 82 Cal.App. 4th at 47-48.
The United States Supreme Court has reemphasized this policy and further stressed that the trial court
“has a responsibility to encourage agreement” on fees. Blum v. Stenson, 465 U.S. 886, 902 n.19 (1984).
Here, as part of the Settlement, Sun agreed not to object to an award of $1,740,000 for Class Counsel’s
attorneys’ fees. Such a fee is commensurate with what the market would provide for similar services and
the Court therefore can most certainly enforce the agreement. Decl. Gertler at ¶ 10(g).
The reasonableness of the requested fee can be evidenced by the fact that it compares favorably to
Class Counsel’s overall lodestar calculation in this case. See Vizcaino, supra, 290 F.3d at 1050 (“lodestar
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4 Emphasis added and internal citations omitted unless otherwise noted.
5 Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) (3.65 multiplier approvedbecause of substantial risk) Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D.Fla.1988)(court applied multiplier of 3, noting that this was "average" for a large complicated class actionwhere multipliers ranged from 2.26 to 4.5); Rievman v. Burlington Northern Railroad Co., 118 F.R.D.29, 35 (S.D.N.Y. 1987)("In recent years, multipliers between 3 and 4.5 have been common"); Rabin v.Concord Assets Group Inc., 1991 U.S. Dist. LEXIS 18273 at * 4, Fed. Sec. L. Rep. (CCH) ¶ 96,471(S.D.N.Y. December 19, 1991) (court applied multiplier of 4.4, noting that in recent years multipliersfrom 3 to 4.5 have commonly been awarded).
7MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
[method] may provide a useful perspective on the reasonableness of a given [fee] award.”) As the United
States Supreme Court has instructed:
Given the unique reliance of our legal system on private litigants to enforce substantiveprovisions of law through class and derivative actions, attorneys providing the essentialenforcement services must be provided incentives roughly comparable to thosenegotiated in the private bargaining that takes place in the legal marketplace, as it willotherwise be economic for defendants to increase injurious behavior.
Deposit Guaranty Nat. Bank, supra, 445 U.S. at 338.4
In the class action context, that means “attempting to award the fee that informed private bargaining,
if it were truly possible, might have reached.” Lealao, 82 Cal.App.4th at 48. Here, informed arms-length
bargaining between experienced counsel for the Class and Sun resulted in Sun bargaining Class Counsel’s
award down to their lodestar with a nominal 1.07 multiplier, which is on the low end of the common
benchmark of a full lodestar with a 2 to 4 multiplier enhancement. Decl. Gertler at ¶ 9(b). The bargaining
was clearly adversarial and arms length as the amount was the result of a mediator’s proposal. Such
bargaining is obviously the best measure of the market for fees. Deposit Guaranty, supra, 445 U.S. at 338.
Moreover, fee awards in actions brought under the same or comparable statutes as this one have resulted
in substantially higher fees than the sum sought by Class Counsel herein, further reflecting the accurate
market value of the award requested.5 In Wershba v. Apple Computer, 91 Cal. App. 4th at 255 , the
Court noted that “multipliers can range from 2 to 4 or even higher.”
The requested fee award, agreed to by the parties as part of the Settlement, should be approved. The
requested fee award was bargained for during arms’ length adversarial bargaining by counsel for each of
the parties as part of the Settlement, and is substantially less than sums awarded in comparable litigation
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28 8MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
where a multiplier enhances the lodestar amount. Decl. Gertler at ¶9(c). In order to achieve an agreement,
recognized wage and hour litigator and mediator, Mark Rudy, had to intervene in the negotiations with a
mediator’s proposal which he recommended as the fair and appropriate amount. The requested fee was a
product of arms-length negotiations and fairly reflects the marketplace value of the services rendered by
Class Counsel in this case. As a result, this sum recommended by Mr. Rudy, and accepted by both parties,
can and should be approved by this Court.
B. CLASS COUNSEL’S FEE AWARD IS APPROPRIATELY AWARDED UNDER THELODESTAR/MULTIPLIER APPROACH
The method for assessing whether a fee award in a consumer class action such as this one is
reasonable is the lodestar/multiplier method. The lodestar amount is calculated by multiplying the
reasonable hours spent by counsel by the reasonable hourly rate for those lawyers. The lodestar figure can
then be multiplied based on a number of factors specific to the litigation. Dunk v. Ford Motor Co., 48
Cal.App.4th 1794, 1801 (1996); Rebney v. Wells Fargo Bank, 232 Cal.App.3d 1344, 1347 (1991); Serrano,
supra, 20 Cal. 3d at 48-49. Recently, the California Supreme Court re-affirmed this lodestar approach:
The reasonable hourly rate is that prevailing in the community for similar work. (Id. atp.1004; Shaffer v. Superior Court, (1995) 33 Cal. App. 4th 993, 1002.). The lodestar figuremay then be adjusted, based on consideration of factors specific to the case, in orderto fix the fee at the fair market value for the legal services provided. (Serrano v. Priest,supra, 20 Cal. 3d at p.49.)
PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000).
In this case, the lodestar multiplier approach clearly supports the reasonableness and propriety of
the requested fee. As part of this Settlement, Class Counsel agreed to a fee award equal to their lodestar
with a 1.07 multiplier which is well below within the accepted norm of multipliers of 2 to 4. Class
Counsel’s fee request is $1,740,000.00, and the billing records evidence that the combined lodestar for Class
Counsel is currently $1,625,567.75, which represents a nominal multiplier of 1.07. Decl. Gertler ¶12. After
the mediator proactively intervened in the settlement negotiations and recommended a fee as part of his
mediator’s proposal that was on the low end of the range of fees for similar class actions, Class Counsel had
no choice but to accept this recommended fee, to avoid jeopardizing the Settlement that is very favorable
to the Class in that Class Counsel was able to settle for $5.8 million as an all-in amount without a reversion
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28 9MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
to Sun. Class Counsel therefore respectfully request a reasonable and justified fee award of $1,740,000.00
in accordance with the Settlement Agreement.
C. THE SERRANO AND LEALAO FACTORS WARRANT LODESTARENHANCEMENT
In Serrano v. Priest, 20 Cal.3d 25 (1977), the California Supreme Court set forth various factors the
trial court may use in augmenting the lodestar figure. Among the factors to be considered are the novelty
and difficulty of the questions involved, the skill displayed in presenting them, the extent to which the nature
of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award,
both from the point of view of eventual victory on the merits and the point of view of establishing eligibility
for an award. Serrano, supra, 20 Cal.3d at 49. Additional factors to be considered to determine
enhancement of the lodestar were set forth in Lealao as well and include whether any class members have
objected to the fee award sought, whether class counsel subordinated their own economic interests to that
of the class, the amount of the settlement, and whether the settlement was prompt and should be rewarded
accordingly. Lealao, supra, 82 Cal.App. 4th at 50-53. All of these factors support a multiplier in this case
that is within the accepted benchmark range of 2 to 4.
In large complicated class actions such as this, multipliers in the 2 to 4 range are the norm, even
when the issues presented therein are relatively routine. See e.g 3 Newberg & Conte, Newberg on Class
Actions, §14.03 at 14-5 (3d ed. 1992); Wershba, supra, 91 Cal. App. 4th at 255 (multiplier of two to four
frequently awarded). In Vizcaino, supra, the Ninth District Court of Appeals reviewed the authority on
multiplier awards, and noted that the majority of multipliers awarded were in the 1.5 to 3 range. In
California, many cases have recognized that multipliers of 4 or even more may be used under certain special
facts and circumstances. Lealao, 82 Cal.App.4th at 52; see also Glendora Community Redevelopment
Agency v. Demeter 155 Cal.App.3d 465, 479- 481 (1984)(affirming a percentage-based statutory fee award
that amounted to multiplier of 12); Sternwest Corp. v. Ash 183 Cal.App.3d 74, 75 (1986) (remanding the
case to the trial court “with directions to enhance the lodestar award by such factor (two, three, four or
otherwise)”). Sternwest was cited with approval by the Supreme Court, though not this language, in PLCM
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6 Some cases have awarded multipliers much higher than the multiplier requested here. See e.g.Glendora Comm. Redevelopment Agency v. Demeter, 155 Cal. App. 3d 465, 202 Cal. Rptr. 389 (1984)(multiplier of 12 times lodestar); In Re Rite-Aid Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001)(10.73multiplier) Weiss v. Mercedes-Benz of N. Amer., Inc., 899 F. Supp. 1297, 1995 U.S. Dist. LEXIS 14708(D.N.J. May 11, 1995) (multiplier of 9.3 times lodestar); In re RJR Nabisco, Inc. Sec. Litig., Fed. Sec. L.Rep. (CCH) P 96,984 (S.D.N.Y. 1992) (multiplier of 6 times lodestar); Roberts v. Texaco, 979 F. Supp.185 (S.D.N.Y. 1997)(5.50 multiplier).
10MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
Group, Inc. v. Drexler, 22 Cal.4th 1884, 1095 (2000). In Wershba, the Court of Appeal confirmed that
multipliers commonly “range from 2 to 4 or even higher” Id., at 255.6
1. The Novelty and Difficulty of the Questions Involved and the Skill Displayed inPresenting Them
The novelty and complexity of the issues presented in this case, as well as the skill displayed by
Class Counsel, warrant enhancement of the lodestar. Serrano, 20 Cal. 3d at 49. These factors are not
redundant of the number of hours spent or of the hourly rates charged. Rather, they reflect the fact that in
the legal marketplace, a difficult or complex case requires a higher fee than a more routine case. Roberts
v. Texaco, Inc., 979 F. Supp. 185, 197 (S.D.N.Y. 1997). Skill of an attorney alone can justify enhancing
the lodestar figure if the skills exhibited are beyond those that might be expected of attorneys of comparable
expertise or experience. Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1176 (1998). Greater skill
must be used by attorneys of comparable expertise and experience working on a contingent fee basis than
on an hourly basis because the contingent fee attorney must as a result of financial necessity minimize the
all or nothing hours expended in order to achieve the same result that an hourly attorney could achieve in
a reasonable period of time without the burden of working on an all or nothing basis.
Here, Class Counsel were confronted with complex factual and legal defenses that presented
significant hurdles to achieving a favorable settlement. Due to the novel and complex legal issues involved,
Class Counsel were required to demonstrate skills above and beyond those that would be expected of
persons of their stature and experience. Weeks, 63 Cal.App.4th at 1176. .
In fact, many previous overtime cases, especially those involving computer engineers and IT-related
personnel that had been litigated were either unsuccessful on certification or presented difficulty in
obtaining monetary relief. With respect to the risks of this case, one Court has held that these types of cases
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28 11MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
present individual issues of whether the exemption applied precluded certification. Dunbar v. Albertson's,
Inc., 141 Cal. App. 4th 1422, 1431-32 (2006) and Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440
(2007). Moreover, courts in other jurisdictions have held that IT personnel are exempt under either the
administrative or the professional exemptions. In navigating these procedural hurdles that presented novel
and difficult questions, Class Counsel displayed skills beyond those that might be expected of attorneys of
comparable expertise or experience. Decl Gertler at ¶ 8(d).
In order to reach a settlement, Class Counsel had to convince Defendant and their counsel that Class
Counsel could overcome difficult obstacles in proving liability and achieving monetary recovery for the
Class Members, where others had failed to gain any relief for IT personnel in similar actions claiming
overtime wages. Class Counsel also had to convince the Court, Defendant and Defendant’s counsel that
the applicability of the administrative and professional exemptions to overtime wages could be litigated
on a class-wide basis and would not raise individual issues that would defeat class certification. In
navigating these very difficult issues, Class Counsel, negotiated through the hurdles and individual issues
that could have defeated class certification.
The quality of opposing counsel is also important in evaluating the quality of Class Counsel's work.
In re King Resources Co. Securities Litig , supra, 420 F.Supp. at 634; Arenson, supra, 372 F.Supp. at 1354.
In this action, Sun was represented by the prestigious and capable law firm of Wilson, Sonsini, Goodrich
& Rosati PC, led by the experienced counsel of Fred W. Alvarez, Ulrico S. Rosales, and Troy A. Valdez,
as well as several supporting attorneys. Decl. Gertler at ¶ 11(c). Defense counsels’ efforts on behalf of
their client was aggressive and unrelenting. Class Counsel was forced to oppose three (3) motions to strike
and amend the pleadings several times to obtain relief in this case. Importantly, Class Counsel was
successful in obtaining certification of the Class despite the opposition of Sun. The novelty of Class
Counsel’s approach and the difficulty of this case as well as the quality and tenacity of opposing counsel
all evidence the skill presented by Class Counsel in the successful prosecution of this action which supports
the nominal 1.07 multiplier requested.
2. The Extent to Which the Nature of the Litigation Precluded Other Employment andAdditional Factors Set Forth in Lealao
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28 12MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
Class Counsel, consisting of Chavez & Gertler, Blumenthal & Nordrehaug, Clark & Markham and
the United Employees Law Group, were responsible for the work on this case and are each small firms
consisting of less than ten attorneys. Decl. Gertler at ¶11(d); Decl. Blum. at ¶ 3; Haines Decl. at ¶3. These
firms had to forego well-compensated work on other hourly cases at the same rate or other contingent cases
so as to devote the necessary time and resources to this case. Id. Many of the tasks that these firm would
have performed and been compensated for in these other cases had to be delegated to other law firms. This
litigation thus precluded other more lucrative employment which also warrants enhancement of the lodestar.
In Lealao, the court articulated additional factors to those set forth in Serrano III that should be
considered in determining enhancement of a lodestar including whether any Class Members have objected
to the fee award sought, whether Class Counsel subordinated their own economic interests to that of the
class, and whether the settlement was prompt and should be rewarded accordingly. Lealao, supra, 82
Cal.App. 4th at 50-52.
As to whether any class member had objected to the fee award, the answer is that not one class
member has objected to the fee. This fact also warrants enhancement of the lodestar. Lealao, 82
Cal.App.4th at 51. Moreover, as set forth in the Declaration of Gertler, the very reason Class Counsel is
not seeking a higher multiplier of 3 to 4 is because Class Counsel subordinated their own economic interests
to that of the Class in order to facilitate the best settlement possible for the Class. Decl. Gertler at ¶ 11(e).
This factor also warrants further enhancement of the lodestar. Lealao, supra, 82 Cal.App.4th at 52.
Finally, the duration of the litigation in this case warrants enhancement of the lodestar. This case
was settled after class certification but before trial, which means that the fees and costs incurred are much
lower than the fees and costs would have been after a hotly contested trial. Decl. Gertler at ¶¶ 6,11. The
settlement obtained here could not have become a reality absent Class Counsel’s persistence and tenacity
from the inception of the case.
3. The Contingent Nature of the Fee Award
Counsel retained on a contingency fee basis, whether in private matters or in representative litigation
of this sort, is entitled to a premium beyond their standard, hourly, non-contingent fee schedule in order to
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28 13MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
compensate for both the risks and the delay in payment. The simple fact is that despite the most vigorous
and competent of efforts, success is never guaranteed. McKittrick v. Gardner, 378 F.2d 872, 875 (4th
Cir.1967) (“charges on the basis of a minimal hourly rate are surely inappropriate for a lawyer who has
performed creditably when payment of any fee is so uncertain.”). Indeed, if counsel is not adequately
compensated for the risks inherent in difficult class actions, competent attorneys will be discouraged from
prosecuting similar cases. Steiner v.BOC Financial Corp., 1980 U.S. Dist. LEXIS 14561 at *6- *7;
Fed.Sec.L.Rep.(CCH) ¶ 97,656 (S.D.N.Y. October 10, 1980).
Here, the contingent nature of the fee award, both from the point of view of eventual settlement and
the point of view of establishing eligibility for an award, also warrant enhancement of the lodestar. A
number of difficult issues, the adverse resolution of any one of which could have doomed the successful
prosecution of the action, were present here. Decl. Gertler at ¶10(e). Sun’s practice at issue here had been
in place for years before 2002. Sun’s numerous defenses to the case created substantial litigation problems
for the Class and Class Counsel to overcome.
For example, were the Plaintiff’s and Class Members’ claims barred from recovery by the
“administrative exemption” by analogy set forth in 29 C.F.R. Section 541.402 as was held in Koppinger v.
American Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio 2003)? Decl. Gertler at ¶ 10(e). Did Class
Members perform work that was “directly related to management or general business operations” within
the meaning of the administrative exemption and/or 29 C.F.R. § 541.201(a)(b)? Were IT-related positions
exempt under the professional exemption as was held in Bagwell v. Florida Broadband, 2005 WL 1962562,
(S.D. Fla. 2005)? Would Plaintiff be able to maintain class certification at trial and thereby recover on
behalf of Sun’s employees? Could the hours of overtime be accurately calculated for the Class Members?
All of these issues presented very substantial risks, any one of which could have resulted in the Class
receiving nothing. As a result, victory was far from certain and was obtained only through the extraordinary
efforts of Class Counsel.
Moreover, the risky nature of this action and of establishing eligibility for a fee award here is further
evidenced by the difficulty of other IT personnel and employee overtime class actions. Decl. Gertler. at ¶11.
Had this action not succeeded, Class Counsel would have received no compensation for the hundreds of
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7 Federal courts have long recognized that when assessing the attorneys’ fees award as apercentage of the fund, Courts look to the total value of benefits afforded to class members bythe settlement. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).
8 In re Remeron Direct Purchaser Antitrust Litigation, 2005 U.S. Dist. LEXIS 27013, 16 (D.N.J.2005) (attorneys “regularly contract for contingent fees between 30% and 40%”).
14MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
hours they expended and would have been out of pocket for all costs and expert fees advanced. Decl.
Gertler at ¶¶ 10, 11.
4. The Requested Award Compares Favorably to the Result Achieved
This settlement resulted in the creation of a common fund in the amount of $5,800,000 for the
benefit of the Class.7 The requested fee award of $1,740,000 represents 30% of this common fund, which
is well within the accepted range for attorneys’ fees in a common fund case. Therefore, the significant
recovery in this case further supports the requested fee award under the common federal practice of ‘cross-
checking’ the lodestar against the value of the class recovery.” Lealao, 82 Cal. App. 4th at 45.
The Ninth Circuit Court of Appeals held that a percentage of 30% is within the “usual range”
for attorneys fees awards. Vizcaino, supra, 290 F.3d 1043, 1047-49 (approving 28% attorneys fee award
as reflecting “the standard contingency fee for similar cases”).8 In In re Warner Communications Sec.
Lit, 618 F.Supp. 735, 749-50 (S.D. N.Y. 1985), Judge Keenan found that percentage fees in
common fund cases range from 20% to as high as 50%. Professor Newberg is in accord:
No general rule can be articulated on what is a reasonable percentage of a commonfund. Usually 50% of the fund is the upper limit on a reasonable fee award from acommon fund in order to assure that the fees do not consume a disproportionate partof the recovery obtained for the class, although somewhat larger percentages are notunprecedented.
Newberg, Newberg on Class Actions, 3rd Ed., § 14.03, at 14-13.
More recently, in Craft v. County of San Bernardino, 2008 U.S. Dist. LEXIS 27526, at *30 (C.D.
Cal. 2008), the District Court noted that a 1996 study by the Federal Judicial Center “found that most fee
awards in common fund class actions were between 20% and 40% of the gross monetary settlement” and
that another study by National Economic Research Associates “found that attorneys' fees in these class
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9 See also In re Activision Sec. Litigation, 723 F. Supp. 1373, 1377-78 (N.D. Cal. 1989) (surveyingsecurities cases nationwide and noting, “This court’s review of recent reported cases discloses thatnearly all common fund awards range around 30%. . . .”); In re Immune Response Secs. Litig., 497 F.Supp. 2d 1166, 1176 (S.D. Cal. 2007) (Northern District of California study found that “the range of thepercentage of the award devoted to attorneys' fees was 7.6% to 55.6% with a mean of 29.5%.”); Rauschv. Hartford Fin. Servs. Group, 2007 U.S. Dist. LEXIS 14740, at *2 (D. Ore 2007) (awarding 30%); In reHeritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, at *18, n. 12 (C.D. Cal. June 10, 2005) (takingnotice of more than 200 federal cases in which a fee of 30% of higher was awarded).
15MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
actions averaged approximately 32% of the recovery.” Id. Thus, the requested fee award in this case,
representing 30% of the settlement, is endorsed by the percentage cross-check because 30% falls at the low
end of the national average for awards in common fund settlements and is most certainly reasonable.9 The
result achieved by Class Counsel also supports the requested fee award.
For these reasons as set forth herein above, Plaintiffs respectfully request a fee award of $1,740,000
to Class Counsel, roughly equaling their lodestar with a only a nominal 1.07 multiplier enhancement.
IV. CLASS COUNSEL IS ALSO ENTITLED TO REIMBURSEMENT OF THE OUT OFPOCKET COSTS AND EXPENSES INCURRED.
Every member of the Settlement Class received notice that Class Counsel would seek reimbursement
of costs and expenses in the amount not to exceed $125,000. Not one member of the Class objected to the
reimbursement of costs and expenses incurred by Class Counsel in this action, and the amount sought is
lower than the amount set forth in the notice.
These out-of-pocket expenses, totaling $49,437.52 were all reasonable and necessary to the
prosecution of this action. See Decl. Gertler ¶13 and Exhibit #3, thereto; Blum Decl. ¶8 and Exhibit #2,
thereto; Markham Decl. at ¶7, Exhibit #2, thereto; and Haines Decl. at ¶8 and Exhibit #2, thereto. These
expenses include the amounts paid for expert fees, service of process, mediation costs, legal research
charges, court fees and delivery charges, all of which are costs normally billed to and paid by the client.
All of the out of pocket expenses are detailed and documented in the Decl. Gertler, Exhibit #3; in the Blum
Decl. ¶13, Exhibit #2; in the Markham Decl. at ¶8, Exhibit #2; and in the Haines Decl. at ¶8, Exhibit #2.
All of the expenses incurred by Class Counsel and documented in the Gertler, Blumenthal, Markham and
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28 16MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
Haines Declarations were reasonably necessary to the litigation. See Decl. Gertler, at ¶13; Blum Decl. at
¶8; Markham Decl. at ¶7; Haines Decl. at ¶8.
V. THE CLASS REPRESENTATIVE SHOULD RECEIVE THE REQUESTEDSERVICE AWARD
Plaintiffs respectfully submit that for their service as the sole Class Representative, Plaintiff Lisa
Connell should be awarded $25,000. See Decl. Gertler ¶13. Sun has agreed to this service award to the
Plaintiff. The payment of service awards to successful class representatives is appropriate and the amount
of $25,000 is well within the currently accepted range. See e.g. Van Vranken v. Atlantic Richfield Co., 901
F.Supp. 294, 299-300 (N.D. Cal. 1995) (incentive award of $50,000); In re Dun & Bradstreet Credit Servs.
Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) (two incentive awards of $55,000, and three incentive
awards of $ 35,000); Bogosian v. Gulf Oil Corp., 621 F. Supp. 27 (E.D. Pa. 1985) (incentive awards of
$20,000 to each of two plaintiffs); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998); Enter. Energy
Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) ($50,000 to each class
representative). Moreover, at the preliminary approval hearing, Judge Sabraw requested additional
information regarding the role of Plaintiff Connell in this litigation, which was provided in the Supplemental
Declaration of Jonathan Gertler. After receiving and reviewing this additional information, Judge Sabraw
approved the proposed service award of $25,000 to Plaintiff Connell.
As the sole Representative of the Class, Plaintiff performed her duty to the Class admirably and
without exception. Plaintiff subjected herself to the very real possibility of an adverse judgment and a
corresponding payment of costs to Sun. Finally, Plaintiff worked with Class Counsel, responded thoroughly
to Sun’s discovery requests, appeared for deposition and participated in mediation. Without her
participation and work on behalf of the absent class members, there would be no case and no recovery for
the class. See Decl. Gertler ¶13.
As a result, Class Counsel respectfully requests that this Court order payment of costs in the amount
of $49,437.52, and payment of a class representative incentive award of $25,000 to Plaintiff Connell, in
accordance with the Settlement Agreement. Decl. Gertler,¶13.
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28 17MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES
AND PLAINTIFF SERVICE AWARDS
VI. CONCLUSION
For the foregoing reasons, Class Counsel respectfully requests the Court grant Class Counsel's
request for a cost award of $49,437.52, Class Representative award to Plaintiff of $25,000, and a fee award
of $1,740,000, based upon the lodestar/multiplier approach and the Settlement Agreement with a reasonable
cross-check of 30% of the common fund.
Dated: October ___, 2008 CHAVEZ & GERTLER, LLP
By: ___________________________________Jonathan Gertler, Esq.Attorneys for Plaintiff and the Class
CLARK & MARKHAMR. Craig Clark (State Bar #129219) David R. Markham (State Bar #071814)401 West A Street, Ste. 2200San Diego CA 92101Telephone: (619) 239-1321Facsimile: (619) 239-5888
BLUMENTHAL & NORDREHAUGNorman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975)2255 Calle ClaraLa Jolla, California 92037 (858)551-1223Fax: (858) 551-1232
UNITED EMPLOYEES LAW GROUPWalter Haines (State Bar #71705)65 Pine Ave, #312Long Beach, CA 90802Telephone: (562) 256-1047Facsimile: (562) 256-1006
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