chavez & gertler llp · plaintiffs’ memo. iso motion for attorneys’ fees, etc. 1 2 3 4 5 6...
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PLAINTIFFS’ MEMO. ISO MOTION FOR ATTORNEYS’ FEES, ETC.
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CHAVEZ & GERTLER LLP Mark A. Chavez (CA Bar No. 90858) Nance F. Becker (CA Bar No. 99292) 42 Miller Avenue Mill Valley, California 94941 Tel: (415) 381-5599 Fax: (415) 381-5572 [email protected] [email protected] BRAUN LAW GROUP, P.C. Michael D. Braun (Bar No. 167416) 1999 Avenue of the Stars, Ste. 1100 Los Angeles, California 90067 Tel: (310) 836-6000 Fax: (310) 836-6010 [email protected] LAW OFFICES OF ANDREW KIERSTEAD Andrew S. Kierstead (Bar. No. 132105) 1001 SW 5th Avenue, Suite 1100 Portland, Oregon 97204 Tel: (508) 224-6246 Fax: (508) 244-4356 [email protected] Attorneys for Plaintiffs Nicholas Miller, Jeffrey Borneman, and the Proposed Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NICHOLAS MILLER and JEFFREY BORNEMAN, individually and on behalf of all others similarly situated, Plaintiffs, vs. WISE COMPANY INC., Defendant.
)) ) ) ) ) ) ) ) ) ) ) ) )
Case No: 5:17-cv-00616-JAK-PLA CLASS ACTION PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS, EXPENSES AND SERVICE AWARDS Hrg. Date: July 15, 2019 Time: 8:30 a.m. Ctrm: 10B Hon. John A. Kronstadt
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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................ 2
II. ARGUMENT ................................................................................................... 3
A. Plaintiffs Are Entitled To An Award of Attorneys’ Fees Pursuant to Federal Rule of Civil Procedure 23(h) And California Law ................. 3
B. The Court Should Award Fees On A Lodestar/Multiplier Basis ........... 5
C. The Court Should Award Plaintiffs’ Counsel An Enhanced Lodestar .. 7
1. Plaintiffs’ Lodestar Is Reasonable And Well-Supported ............ 7
2. The Requested Multiplier Of 1.5 is Well-Justified And Should Be Awarded ............................................................................... 13
a. Plaintiffs achieved an excellent result for the class.............. 16 b. Plaintiffs faced a substantial risk of non-recovery ............... 17 c. The litigation was in the public interest ............................... 18 d. Counsel demonstrated a high degree of skill ....................... 18
D. Payment Of Class Counsel’s Litigation Expenses Is Appropriate And Warranted ............................................................................................. 19
E. Plaintiffs’ Request For Service Awards Should Be Granted ............... 20
III. Conclusion .......................................................................................................... 23
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TABLE OF AUTHORITIES CASES Anunziato v. eMachines, Inc. 402 F. Supp. 2d 1133 (C.D. Cal. 2005) ................................................................ 18 Beasley v. Wells Fargo Bank 235 Cal.App.3d 1407 (2008) ................................................................................ 19 Bennett v. Simplexgrinnell LP (No. 11-CV-01854-JST) 2015 WL 12932332 (N.D. Cal. Sept. 3, 2015) ..................................................... 19 Boring v. Bed Bath & Beyond (No. 12-CV-05259-JST) 2014 WL 2967474 (N.D. Cal. June 30, 2014) ..................................................... 22 Brown v. Hain Celestial Grp., Inc.(No. C-11-03082 LB) 2014 WL 6483216 (N.D. Cal. Nov. 18, 2014) ................................................... 22 Cazares v. Saenz 208 Cal.App.3d 279 (1989) ................................................................................. 17 Cellphone Term. Fee Cases 186 Cal.App.4th 1380 (2010) ............................................................................... 20 Chalmers v. Los Angeles 796 F.2d 1205(9th Cir. 1985) ................................................................................ 11 Chavez v. City of Los Angeles 47 Cal.4th 970 (2010) ............................................................................................. 6 Chavez v. Netflix 162 Cal.App.4th 43 (2008) .................................................................................... 15 Church of Scientology v. Wollersheim 42 Cal.App.4th 628 (1996) disapproved on other grounds by Equilon Enterprises
v. Consumer Cause, Inc. 29 Cal.4th 53 (2002) ...................................................... 8 City of Burlington v. Dague 505 U.S. 557 (1992) ................................................................................................ 7 City of Riverside v. Rivera 477 U.S. 561 (1986) ............................................................................................. 16
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Coalition for L.A. County Planning v. Board of Supervisors 76 Cal.App.3d 241 (1977) ..................................................................................... 15 Colgan v. Leatherman Tool Group, Inc. 2006 135 Cal.App.4th 663 (2006)......................................................................... 17 Davis v. City of San Diego 106 Cal.App.4th 893(2003) ................................................................................... 11 Deatrick v. Securitas Sec. Services USA, Inc., (No.13-CV-05016-JST) 2016 WL 5394016 (N.D. Cal. Sept. 27, 2016) .................................................... 22 Downey Cares v. Downey Community 196 Cal.App.3d 983 (1987) ..................................................................................... 6 Folsom v. Butte County Ass’n of Gov’ts 32 Cal.3d 668 (1991) ............................................................................................. 18 Gates v. Gomez 60 F.3d 525 (9th Cir. 1995) ..................................................................................... 8 Hanlon v. Chrysler Corp. 150 F.3d 101 (9th Cir. 1998) ................................................................................... 7 Harman v. City and County of San Francisco 159 Cal.App.4th 407(2007) ................................................................................... 14 Harris v. Marhoefer 24 F.3d 16 (9th Cir. 1994) ..................................................................................... 19 Harris v. Vector Marketing Corp.( No. C-08-5198) 2012 WL 381202 (N.D. Cal. Feb. 6, 2012) .................................................... 21,22 Hensley v. Eckerhart 461 U.S. 424 (1983) .......................................................................................... 7,16 Horsford v. Bd. of Trustees of Cal. State Univ. 132 Cal.App.4th 359 (2005) .............................................................................. 7,14 Housing Rights Ctr. v. Sterling (No. CV 03-859 DSF) 2005 U.S. Dist. LEXIS 31872 (C.D. Cal. Nov. 1, 2005) ...................................... 12
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In re Google Referrer Header Privacy Litig.( No. 5:10–CV–04809–EJD) 2015 WL 1520475 (N.D. Cal. Mar. 31, 2015) ..................................................... 15 In re Heritage Bond Litig.( No. 02-ML-1475 DT) 2005 WL 1594403 (C.D. Cal. June 10, 2005) ..................................................... 14 In re Media Vision Tech. Sec. Litig. 913 F.Supp.1362 (N.D. Cal. 1996) ....................................................................... 19 In re Mercury Interactive Sec. Litig.(No. 05-cv-03395-JF) 2011 WL 826797 (N.D. Cal. Mar. 3, 2011) .......................................................... 15 In re Online DVD-Rental Antitrust Litig. 779 F.3d 934 (9th Cir. 2015) ................................................................................. 21 In re TFT-LCD (Flat Panel) Antitrust Litig. (No. M 07-1827 SI) 2013 WL 1365900 (N.D. Cal. Apr. 3, 2013) ........................................................ 21 In re Wachovia Corp, etc.(No. 5:09-md-02015-JF) 2011 WL 1877630 (N.D. Cal. May 17, 2011) ...................................................... 15 In re Washington Pub. Power Supply Sys. 19 F.3d 1291 (9th Cir. 1994) ................................................................................... 7 Johnson v. Univ. College of Univ. of Alabama 706 F.2d 1205 (11th Cir. 1983) ............................................................................. 13 Keith v. Volpe 501 F.Supp. 403 (C.D. Cal. 1980) ...................................................................... 15 Ketchum v. Moses 24 Cal.4th 1122 (2001) .................................................................................. passim Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924 .................................................................................. 17 Lauderdale v. City of Long Beach, (No. CV 08-979 ABC (JWJX)) 2010 WL 11570514 (C.D. Cal. Jan. 11, 2010) ..................................................... 13 Lealao v. Beneficial California, Inc. 82 Cal.App.4th 19 (2000)............................................................................... passim
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Lilly v. Jamba Juice Co. 308 F.R.D. 231 (N.D. Cal. 2014) .......................................................................... 22 Mangold v. California Pub. 67 F.3d 1470 (9th Cir. 1995) ................................................................................... 5 Marini v. Municipal Court 99 Cal.App.3d 829 (1979) ....................................................................................... 5 Mathis v. Spears 857 F.2d 749 (9th Cir. 1988) ................................................................................. 12 MBNA Am. Bank, N.A. v. Gorman 147 Cal.App.4th Supp. 1 (Cal. App. Dep’t Super. Ct. 2006) ......................... 5,7,11 McGrath v. Cty. of Nevada 67 F.3d 248, 255 (9th Cir. 1994) ........................................................................... 13 Moore v. Verizon Communic. Inc.(No. C 09–1823 SBA) 2013 WL 4610764 (N.D. Cal. Aug. 28, 2013) ..................................................... 21 Morales v. City of San Rafael 96 F.3d 359 (9th Cir. 1996) .................................................................................. 16 Moreno v. City of Sacramento 534 F.3d 1106 (9th Cir. 2008) ............................................................................... 13 MRO Communic., Inc. v. American Tel. & Tel. Co. 197 F.3d 1276 (9th Cir. 1999) ................................................................................. 4 Press v. Lucky Stores 34 Cal.3d 311(1983) ................................................................................................ 6 Probe v. State Teachers' Ret. Sys. 780 F.2d 776 (9th Cir. 1986) ................................................................................. 13 Quesada v. Thomason 850 F.2d 537 (9th Cir. 1988) ................................................................................. 16 Rodriguez v. West Publishing Corp. 563 F.3d 948 (9th Cir. 2009) ................................................................................. 20
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Schwartz v. Sec. of Health & Human Serv. 73 F.3d 895 (9th Cir. 1995) ................................................................................... 11 Serrano v. Priest 20 Cal.3d 25 (1977) ....................................................................................... passim Serrano v. Unruh 32 Cal.3d 621 (1982) ............................................................................................ 6,7 Smith v. Am. Greetings Corp. (No. 14-CV-02577-JST) 2016 WL 362395 (N.D. Cal. May 19, 2016) ........................................................ 21 State v. Meyer 174 Cal.App.3d 1061 (1985) ................................................................................. 18 Staton v. Boeing Co. 327 F.3d 938 (9th Cir. 2003) ................................................................................. 20 Thieriot v. Celtic Ins Co.( No. 10-04462 LB) 2011 1522385, (N.D. Cal. Apr. 21, 2011) ............................................................ 15 United Steelworkers of Am. v. Phelps Dodge Corp. 896 F.2d 403, 407 (9th Cir. 1990) ......................................................................... 11 Van Vranken v. Atlantic Richfield Co. 901 F.Supp.299 ............................................................................................... 15,21 Vizcaino v. Microsoft Corp 290 F.3d 1043 (9th Cir. 2002) ...................................................................... 7,14,15 Vo v. Las Virgenes Municipal Water Dist. 79 Cal.App.4th 440 (2000)...................................................................................... 6 Walsh v. Kindred Healthcare (No. 11–cv–00050–JSW) 2013 WL 6623224 (N.D. Cal. Dec. 16, 2013) ..................................................... 21 Wershba v. Apple Computer 91 Cal. App.4th 224 (2001) ................................................................................... 15 Woodland Hills Res. Ass’n v. City Council 23 Cal.3d 917 (1979) ............................................................................................ 16
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STATUTES
Class Action Fairness Act, 28 U.S.C. §§1332(d), 1441(a), 1446(b) ......................... 4
Cal. False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq. ............ passim
Cal. Unfair Competition Law, Cal. Civil Code §§ 17200 et seq. ...................... passim
Cal. Consumers Legal Remedies Act, Cal. Civil Code §§ 1750, et seq............passim
Cal. Code Civil Procedure §1021.5 ..................................................................passim RULES
Fed. R. Civ. P. 23 ................................................................................................... 3,19
Fed. R. Civ. P. 54(d)(1) ..................................................................................... passim
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I. INTRODUCTION
After discovery, the production of additional information, and two mediation
sessions conducted by a highly-regarded JAMS mediator, Plaintiffs Nicholas Miller
and Jeffrey Borneman (“Plaintiffs”) and Defendant Wise Company Inc. (“Wise”)
reached a settlement under which Wise agreed to resolve Plaintiffs’ consumer
deception claims by fundamentally altering its marketing and sale practices, as well
as offering 20% refunds to class matters. The Court entered its order preliminarily
approving the Settlement on November 26, 2018. Prelim. Approval Order
(“PAO”), Dkt. 47.
The Settlement is a resounding victory for consumers. For years, Wise
marketed its Long-Term Food Kits based on the length of time each would
purportedly feed a stated number of adults and/or children. Those representations
were a material part of Wise’s bargain with its customers, who reasonably rely on
Wise’s representations about the quantity of food in its food kits to help them
calculate and stockpile the amount they will need to get through long-term
disasters. Plaintiffs and their experts alleged, however, that an adult who relied on
the number of servings of food contained in Wise’s Long-Term Food Kits for the
stated times would receive only one-quarter to one-third of the minimum calories
recommended by the FDA, and that the Long-Term Food Kits lack the quantity of
protein and other nutrients required to maintain good health.
As the result of this innovative action and the ensuing Settlement, consumers
are now receiving much more accurate information about Wise’s products. Wise
has agreed to completely eliminate its “Food Calculator,” which purported to
inform consumers about the quantity of food needed to feed their families for
specified periods in the event of disaster. Wise has also agreed that “none of the
Eligible Products ... will be marketed or displayed in conjunction with any claim, in
words, graphics, or otherwise, that the food kit contains an “X Day” or “X Month”
supply. Settlement Agreement (“S.A.”), Sec. D-2. In addition, consumers who
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overpaid for Eligible Products during the Class Period have the right to claim
significant cash awards of 20% of the purchase price they paid for the products. In
many cases, this will amount to hundreds of dollars per customer.
Although the parties resolved all issues relating to Wise’s liability for the
actions and omissions alleged in the Complaint and the relief to be provided to the
members of the Settlement Class, they did not negotiate the amount of
compensation due to Plaintiffs’ counsel for the hundreds of hours they spent
investigating, litigating, and very successfully resolving this matter, leaving that
determination to the Court. The Settlement Agreement provides that:
Plaintiffs are entitled to an award of attorneys’ fees, costs and expenses in an amount to be determined by the Court. *** The amount of fees, costs and expenses awarded by the Court shall be paid by Wise within 14 days of the Effective Date. Class Counsel’s support of the Settlement Agreement as fair and reasonable is not conditioned upon the Court’s award of the attorneys’ fees, costs and expenses requested.
S.A. sec. H. See also sec. D.1.c (“Wise shall pay such Attorneys’ Fee and Expense
Award and Service Awards as are ordered by the Court.”).
In accordance with the Settlement Agreement, Plaintiffs now move the Court
for an award of attorneys’ fees, costs, expenses and service awards. Specifically,
Plaintiffs ask the Court for a lodestar-based fee award, enhanced by a 1.5 multiplier
that reflects the exceptional results efficiently achieved. Plaintiffs request an award
of $966,453.75 in fees, $52,725.26 in costs and expenses, and service awards of
$3,000 apiece to Mr. Miller and Mr. Borneman. As demonstrated below, the
requested awards are reasonable and appropriate under the circumstances of this
case.
II. ARGUMENT
A. Plaintiffs Are Entitled To An Award Of Attorneys’ Fees Pursuant to Federal Rule of Civil Procedure 23(h) And California Law
Federal Rule of Civil Procedure 23(h) provides that, “[i]n a certified class
action, the court may award reasonable attorney’s fees and nontaxable costs that are
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authorized by law or by the parties’ agreement.” Fees in this case are authorized
under both prongs of that Rule.
First, the Settlement Agreement itself conclusively establishes Plaintiffs’
entitlement to an award of attorneys’ fees, costs and expenses. It explicitly
authorizes an application to the Court for such an award. S.A. sec. H, sec. D.1.c,
supra.
Second, fees are authorized by the express provisions of California law.
Although this Court has jurisdiction over this matter pursuant to the Class Action
Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d), 1441(a), and 1446(b) (see Wise
Notice of Removal, Dkt. 1), Plaintiffs’ claims arise solely under California law. The
Complaint alleges violations of California’s False Advertising Law (“FAL,” Cal.
Bus. & Prof. Code §§ 17500 et seq.); Unfair Competition Law (“UCL,” Cal. Civil
Code §§ 17200 et seq.); and the Consumers Legal Remedies Act (“CLRA,” Cal.
Civil Code §§ 1750 et seq.). Under controlling Ninth Circuit precedent, Plaintiffs’
entitlement to a fee and cost award is, thus, governed by California law. MRO
Communic., Inc. v. American Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999),
cert. denied, 529 U.S. 1124 (2000) (“In an action involving state law claims, we
apply the law of the forum state to determine whether a party is entitled to
attorneys’ fees, unless it conflicts with a valid federal statute or procedural rule.”).
Here, Plaintiffs are entitled to an award of attorneys’ fees and costs pursuant
to Civil Code §1780(e) (CLRA claim). Section 1780(e) provides that “[t]he Court
shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed
pursuant to [the CLRA] [emph. added].” Plaintiffs have achieved significant relief
and are the prevailing party.
Plaintiffs are, in addition, entitled to an award of fees and costs under Cal.
Code of Civil Procedure §1021.5 (FAL and UCL claims). This “private attorney
general” statute allows a court to award attorney’s fees to a successful party in any
action which has resulted in the enforcement of an important public right affecting
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the public interest. An award is appropriate “‘under section 1021.5 [upon] a
showing that the litigation: “(1) served to vindicate an important public right; (2)
conferred a significant benefit on the general public or a large class of persons; and
(3) [was necessary and] imposed a financial burden on plaintiffs which was out of
proportion to their individual stake in the matter.” [Cit. omitted.]’” MBNA Am.
Bank, N.A. v. Gorman, 147 Cal.App.4th Supp. 1, 9 (Cal. App. Dep’t Super. Ct.
2006), as mod. on denial of reh’g (Jan. 2, 2007) (“MBNA Bank”).
Plaintiffs’ Counsel’s efforts to achieve the very favorable resolution of this
matter over the course of the last two years have been wholly without
compensation, and their ability to recover their fees and expenses has been wholly
contingent upon the outcome of the case. Plaintiffs sued to enforce the important
public policies underlying the FAL, the UCL, and the CLRA; the Settlement
confers significant benefits on thousands of consumers – including not only the
members of the class, but the greater public pool of future purchasers of Wise
products; and the small amount of money at stake for each of the two class
representatives is grossly out of proportion to the costs of the litigation. As stated in
Marini v. Municipal Court, 99 Cal.App.3d 829, 836 (1979), “[a]n award on the
‘private attorney general’ theory is appropriate when the cost of the claimant’s legal
victory transcends his personal interest, that is, when the necessity for pursuing the
lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in
the matter.’”
B. The Court Should Award Fees On A Lodestar/Multiplier Basis
Where, as here, state law is applied to determine entitlement to attorneys’
fees, the method of calculating attorneys’ fees is also controlled by state law.
Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995).
Federal common law limitations on fee multipliers do not apply in such cases. Id.
Under California law, in “‘fee shifting’ cases, in which the responsibility to
pay attorney fees is statutorily or otherwise transferred from the prevailing plaintiff
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or class to the defendant, the primary method for establishing the amount of
‘reasonable’ attorney fees is the lodestar method.” Lealao v. Beneficial California,
Inc., 82 Cal.App.4th 19, 26 (2000); Chavez v. City of Los Angeles, 47 Cal.4th 970,
985 (2010) (“Under Code of Civil Procedure section 1021.5 ..., if a court
determines that attorney fees should be awarded, computation of those fees is based
on the lodestar adjustment method as set forth in Serrano v. Priest (1977) 20 Cal.3d
25.”) (The cited Serrano decision is hereafter referenced as “Serrano III”.)
Under this method, the court begins with a “touchstone” or “lodestar” figure,
which is based on “a careful compilation of the time spent and reasonable hourly
compensation of each attorney … involved in the presentation of the case.”
Serrano III, 20 Cal.3d at 48; Ketchum v. Moses, 24 Cal.4th 1122, 1131-32 (2001);
Press v. Lucky Store, 34 Cal.3d 311, 322 (1983). The lodestar is, simply, the
number of hours reasonably expended in the litigation multiplied by a reasonable
hourly rate. See, e.g., Serrano v. Unruh, 32 Cal.3d 621, 626-39 (1982) (“Serrano
IV”); Press, 34 Cal.3d at 321-25. The reasonableness of the hours claimed is
assessed by “the entire course of the litigation, including pretrial matters, settlement
negotiations, discovery, [and] litigation tactics.” Vo v. Las Virgenes Municipal
Water Dist., 79 Cal.App.4th 440, 447 (2000).
Following determination of the lodestar, the court may increase or decrease
the lodestar figure by applying a positive or negative “multiplier” based on various
factors. Serrano III, 20 Cal.3d at 49; Downey Cares v. Downey Community Dev.
Comm’n., 196 Cal.App.3d 983, 995-96 (1987). As relevant here, those factors
include the complexity of the issues and the amount at stake; the results achieved;
the promptness of the settlement; the skill of counsel; and the contingent nature of
any fee award. Ketchum, 24 Cal.4th at 1132-22; Serrano III, 20 Cal.3d at 49 (listing
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relevant factors); Lealao, 82 Cal.App.4th at 42, 45 (courts may consider experience
of counsel, amount at stake and results obtained as lodestar enhancement factors).1
C. The Court Should Award Plaintiffs’ Counsel An Enhanced Lodestar
All of the above factors strongly support awarding Plaintiffs attorneys’ fees
in the full amount of their counsel’s lodestar, as well as an enhancement to reflect
the high level of risk undertaken in this complex and novel litigation, the efficiency
with which the case was successfully litigated and resolved, and the excellent
results achieved.
1. Plaintiffs’ Lodestar Is Reasonable And Well-Supported
An award of attorneys’ fees calculated under the lodestar method should be
“fully compensatory.” Ketchum, 24 Cal.4th at 1132. “[A]bsent circumstances
rendering an award unjust, the fee should ordinarily include compensation for all
hours reasonably spent, including those relating solely to the fee.” Serrano IV, 32
Cal.3d at 624; Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal.App.4th 359,
394 (2005). “Time is compensable if it was reasonably expended and is the type of
work that would be billed to a client.” MBNA Bank, 147 Cal.App.4th Supp. at 734,
citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). There is a “‘strong
presumption’ that the lodestar represents the ‘reasonable’ fee.” City of Burlington v.
Dague, 505 U.S. 557, 562 (1992). Any party who attempts to oppose the fee
application “has a burden of rebuttal that requires submission of evidence to the …
1 The Ninth Circuit has, likewise, long held that where, as here, no common fund has been created but the defendant has agreed to pay attorneys’ fees separate and apart from any relief to the class, the plaintiff’s fee award should be based on a lodestar analysis. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998). The Ninth Circuit’s lodestar approach involves a similar two-step process to establish a reasonable fee: (1) calculation of the lodestar by multiplying the hours expended by a reasonable hourly rate, and (2) application of a multiplier enhancement, where appropriate. See In re Washington Pub. Power Supply Sys. Sec. Litig. (“WPPSS”), 19 F.3d 1291, 1294 n.2 (9th Cir. 1994); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002).
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court challenging the accuracy and reasonableness of the hours charged or the facts
asserted by the prevailing party in its submitted affidavits. [Cit. omitted].” Gates v.
Gomez, 60 F.3d 525, 534-35 (9th Cir. 1995). See Church of Scientology v.
Wollersheim,42 Cal.App.4th 628, 629 (1996), disapproved on other grounds
by Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (2002) (affirming
attorney fee award based on (i) declarations submitted by moving party’s counsel
that described their experience and expertise and provided information supportive
of the rates charged; (ii) itemized accountings of attorney time; and (iii) the
declaration of an expert on attorney fees who opined that the rates requested by his
counsel were “well within the range of market rates charged by attorneys of
equivalent experience, skill and expertise,” and where the opposing party did not
present any evidence “that the award was based upon unnecessary or duplicative
work or any other improper basis.”).
Here, Plaintiffs’ Counsel have submitted declarations attesting to their
individual qualifications, experience, and expertise (Declarations of Mark A.
Chavez, Michael Braun, Andrew Kierstead (Exh. A to the Chavez Decl.), Jason
Riddick, and Jeffrey Huron and exhibits thereto2), and their detailed time entries
describing the specific work performed. They have also categorized their time in
accordance with the Court’s guidelines. Chavez Decl. ¶ 35. Exhibit C to the Chavez
Declaration is a spreadsheet summarizing the combined total lodestar for all
Plaintiffs’ counsel, listed by attorney and broken down by task. The following table
2 In the PAO, the Court designated Mark A. Chavez and Nance F. Becker of Chavez & Gertler LLP, Michael D. Braun of the Braun Law Group, P.C., and Andrew Kierstead, Law Offices of Andrew Kierstead as Class Counsel. PAO p.15. Mr. Riddick and Mr. Huron initially consulted with and investigated the named Plaintiffs’ claims, and then brought in Class Counsel. Counsel have reached agreement on the allocation of any attorneys’ fees recovered, and have disclosed the agreement to the named Plaintiffs and obtained their approval. Chavez Decl. ¶¶ 26, 27. Under this agreement, following reimbursement of costs, attorneys Riddick and Huron will collectively receive 20% of the fees, and the net fees will be allocated among the other co-counsel in proportion to each firm’s respective contribution to the litigation, as determined by lead counsel Chavez & Gertler. Chavez Decl. ¶ 26.
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summarizes those lodestar calculations. The table replicates the tables submitted to
the Court with Plaintiffs’ preliminary approval papers on March 30, 2018 (Dkt. 40-
2), the Supplemental Declaration filed April 18, 2018 (Dkt. 41), and the
Supplemental Memorandum filed July 20, 2016 (Dkt.46), which added information
concerning attorney Kierstead’s time. The sole exception is that the prior estimates
of the future time to be spent on the case have been eliminated and replaced with
the actual hours Chavez & Gertler and the Braun Law Group devoted to the
preparation of this motion and the implementation of the Settlement, and a shorter
estimate of the time needed to fully complete the work has been added. Braun Decl.
¶ 12, Chavez Decl. ¶ 29.
Attorney Hours Rate Lodestar Mark A. Chavez 195.1 $850-$9003 $167,300.00 Nance F. Becker 395.7 $750-$800 $300,825.00 Dan L. Gildor 14.5 $695 $ 10,077.50 Jonathan E. Gertler 2.2 $825 $ 1,815.00 J. Raden and J. Ford, Legal Assistants
52.4 $225 $ 11,790.00
Subtotal, Chavez & Gertler
659.9 $491,807.50
Michael Braun 158.95 $700 $111,265.00 Andrew S. Kierstead 32.0 $640 $ 20,480.00 Jason Riddick 33.0 $550 $ 18,150.00 Jeffrey Huron 4.0 $650 $ 2,600.00 TOTAL 887.85 $644,302.50
The time expended by Plaintiffs’ Counsel was reasonable and necessary to
achieve the very successful final outcome in this case. The work encompassed a
wide range of tasks, including but not limited to the following:
Detailed factual investigation of Wise’s nutrition claims, including
consulting with experts both before and after filing suit. To prove their
claims, Plaintiffs retained (1) an expert nutritionist/dietician, who confirmed
3 The work done by attorneys Chavez and Becker in 2019 are charged at their usual rate in effect in that year. Chavez Decl. ¶ 32.
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that each of the Long-Term Food Kits at issue in fact contain only one
quarter to one third of the daily calories recommended by the FDA; (2) a
marketing expert, who opined that the representations on Wise’s website
regarding the quantity and quality of the food contained in the Long-Term
Food Kits were replete with material misrepresentations and omissions; and
(3) a business expert, who presented models for the calculation of restitution
and damages.
Drafting the pleadings and researching applicable law;
Promulgating written discovery to Wise and its third party partners,
meeting and conferring about discovery issues, and organizing and reviewing
the over 13,000 documents that Wise electronically produced;
Deposing Wise’s designated representative about marketing, nutrition,
and sales;
Preparing the Plaintiffs and expert witnesses for the depositions that
Wise requested (but, due to the settlement, did not take) to oppose class
certification;
Fully briefing the motion for class certification;
Attending a case management conference;
Conferring with their clients and keeping them apprised about the
progress of the litigation;
Engaging in extensive settlement discussions and participating in two
mediation sessions with Wise;
Preparing the motion for preliminary approval and this motion; and
Working with the Settlement Administrator to implement the
settlement notice and claim procedures and respond to questions from class
members.
Chavez Decl. ¶ 39. All of that time was essential to protect the interests of the class
members, and to the successful prosecution of the case. Id.
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There is no reasonable basis for Wise to dispute the amount of the lodestar.
First, the record amply demonstrates that the rates charged are reasonable. A
prevailing party’s attorneys’ are entitled to be compensated at “the rate prevailing in
the community for similar work performed by attorneys of comparable skill,
experience, and reputation.” Chalmers v. Los Angeles, 796 F.2d 1205, 1211 (9th
Cir. 1985); see also Ketchum, 24 Cal.4th at 1133. The relevant community is that in
which the court sits, here the Central District of California. Schwartz v. Sec. of
Health & Human Serv., 73 F.3d 895, 906 (9th Cir. 1995). Plaintiffs’ Counsel are
highly-respected members of the bar with extensive experience in prosecuting high-
stakes complex litigation, including consumer class actions. The sworn declarations
of counsel attest to their hourly rates and total hours devoted to the case, their
experience, and their contribution to the prosecution of this case. Such affidavits are
sufficient to establish the appropriate market rate. See United Steelworkers of Am. v.
Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the
plaintiffs’ attorney and other attorneys regarding prevailing fees in the community,
and rate determinations in other cases, particularly those setting a rate for the
plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”);
MBNA Bank, 147 Cal. App.4th Supp. at 733 (attorney affidavits sufficient to
establish appropriate market rate without additional evidence); Davis v. City of San
Diego, 106 Cal.App.4th 893, 903 (2003) (while the moving party has the burden to
prove the appropriate market rate, it may satisfy its burden through its own
affidavits, without additional evidence).
Further demonstrating the reasonableness of the claimed rates, Plaintiffs’
counsels’ declarations also attest to the fact that counsels’ standard rates have
routinely been approved by courts overseeing other class action cases. Chavez Decl.
¶ 34, Braun Decl. ¶ 18. Attorney Braun’s Declaration (¶ 19) also cites numerous
cases from the Central, as well as the Northern, District of California in which – as
far back as 2012 – hourly rates from $725 to $800 were approved. Indeed, in
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Housing Rights Ctr. v. Sterling, No. CV 03-859 DSF, 2005 U.S. Dist. LEXIS
31872, at *10 (C.D. Cal. Nov. 1, 2005), the Central District over ten years ago
noted that hourly rates of up to $1,000.00 per hour were common in the Los
Angeles area. The “law makes clear” that it is appropriate for the Court to consider
fee surveys and other evidence of customary fees in determining the reasonableness
of an attorney’s hourly rates. Mathis v. Spears, 857 F.2d 749, 755-56 (9th Cir.
1988).
Second, while Wise has intimated it may argue that Class Counsel duplicated
their efforts, there are no indicia of undue duplication. Although more than one law
firm and several attorneys participated in the litigation, this does not mean that their
hours were duplicative or unreasonable. In particular, about three-quarters of
attorney Braun’s time (Braun Law Group) is related to his investigation of the
claims and initial draft of the pleadings (which began in October 2015), and
predates the involvement of Chavez & Gertler, whose first time entry is dated June
10, 2016. Chavez Decl. ¶ 40 and Exh. B. The same is true of Messrs. Riddick and
Huron, who were personal counsel to the class representatives, collectively billed
less than 40 hours, and had little involvement in the case after suit was filed. Id.
Class Counsel worked hard to avoid duplication of effort throughout the litigation.
For example, Chavez & Gertler and its legal assistants alone reviewed the
voluminous documents produced by Wise, drafted the discovery to Wise, and
conducted the PMK deposition, while Braun Law Group was responsible for third
party discovery to Wise’s retailers. Chavez & Gertler also took the lead in
settlement negotiation and documentation: As evidenced by Chavez Decl. Exh. C,
Mr. Braun has recorded only 24.5 hours on settlement-related work, as compared to
over 200 hours for Chavez & Gertler.
Further, the courts have frequently recognized that law is not practiced by
one lawyer sitting alone in her office. “[I]n an important class action litigation such
as this, the participation of more than one attorney does not constitute an
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unnecessary duplication of effort.” Probe v. State Teachers' Ret. Sys., 780 F.2d 776,
785 (9th Cir. 1986); McGrath v. Cty. of Nevada, 67 F.3d 248, 255 (9th Cir. 1994)
(also stating that, “participation of more than one attorney does not constitute an
unnecessary duplication of effort.”). This District has held:
“Common experience indicates that lawyers often hire other lawyers to help them with specific issues in the case.” [Citation.] Of course, there is some degree of duplication that is necessary in any case, so “the court should defer to the winning lawyer's professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.” Excellent result
Lauderdale v. City of Long Beach, No. CV 08-979 ABC (JWJX), 2010 WL
11570514, at *6 (C.D. Cal. Jan. 11, 2010), quoting from Moreno v. City of
Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).
Thus, a court may reduce fees because they are duplicative “only if the
attorneys are unreasonably doing the same work.” Johnson v. Univ. College of
Univ. of Alabama in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983) (emph.
original). That is not the case here. Rather, each of the Plaintiffs’ firms applied its
particular expertise in a non-duplicative and efficient manner. Plaintiffs’ counsel
spent a very small percentage of the overall time in essential coordination
conferences, which included agreement on allocation of tasks to avoid duplication.
Chavez Decl. ¶ 40. Thus, there is no basis to reduce Plaintiffs’ lodestar.
2. The Requested Multiplier Of 1.5 is Well-Justified AndShould Be Awarded
Once the lodestar is determined, the Court may adjust the award upward or
downward based on all relevant factors, including the risk undertaken by the
attorneys, the novelty and difficulty of the questions presented, the skill displayed
in prosecuting the case, and the extent to which the nature of the litigation
prevented other employment by the attorneys. Serrano III, 20 Cal.3d at 48-49;
Ketchum, 24 Cal.4th at 1132. “In effect, the court determines, retrospectively,
whether the litigation involved a contingent risk or required extraordinary legal skill
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justifying augmentation of the unadorned lodestar in order to approximate the fair
market value for such services.” Harman v. City and County of San Francisco, 159
Cal.App.4th 407, 416 (2007) (internal citations omitted).
In Ketchum, the California Supreme Court strongly reaffirmed the multiplier
component of the lodestar multiplier method, emphasizing that risk multipliers are
not windfalls, but “earned compensation.” 24 Cal.4th at 1138. The Court stated:
Under our precedents, the unadorned lodestar reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider under Serrano III. The adjustment to the lodestar figure, e.g. to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.
Ibid. (emph. original). The court noted that “[t]he lodestar multiplier method … has
… been widely applied by the Courts of Appeal under a broad range of statutes
authorizing attorney fees,” and that the method has been implicitly endorsed by the
California Legislature. Id. at 1134-35. The court endorsed the policy rationale
behind the multiplier rule, and expressly declined the defendant’s invitation to
reconsider California’s approach in light of the limitations which have been placed
on fee enhancements in federal courts. Id. at 1136-39.4
Similarly, in Horsford, supra, the Court of Appeal held:
It has long been recognized ... that the contingent and deferred nature of the fee award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. (Ketchum v.
4 Federal courts do, of course, also commonly award lodestar multipliers in appropriate cases: “it is common for a counsel’s lodestar figure to be adjusted upward by some multiplier reflecting a variety of factors such as the effort expended by counsel, the complexity of the case, and the risks assumed by counsel.” In re Heritage Bond Litig., No. 02-ML-1475 DT, 2005 WL 1594403 at *22 (C.D. Cal. June 10, 2005). See Vizcaino, 280 F.3d at 1051 (“courts have routinely enhanced the lodestar to reflect the risk of non-payment in common fund cases”).
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Moses, supra, 24 Cal.4th at pp. 1132–1133 ....) “‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’” (Id. at p. 1133 ..., quoting with approval from Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480.)
132 Cal.App.4th at 394–95.
Plaintiffs request a multiplier of 1.5 be applied to their lodestar to reflect the
excellent results achieved, the substantial risk of non-recovery, the novelty of the
issues, the public interest nature of the claims, and the quality of representation. A
1.5 multiplier is less than the typical range of multipliers commonly awarded. See,
e.g., Coalition for L.A. County Planning v. Board of Supervisors, 76 Cal.App.3d
241, 251 (1977) (affirming 2.0 multiplier based on the quality of the work and the
importance and public nature of the suit); Wershba v. Apple Computer, 91 Cal.
App.4th 224, 255 (2001) (“[m]ultipliers can range from 2 to 4 or even higher”);
City of Oakland, supra (affirming a multiplier of 2.34); Chavez v. Netflix, 162
Cal.App.4th 43 (2008) (rejecting objections to a class action settlement and
affirming attorneys’ fee award of $2,040,000 based on a court-determined lodestar
of $805,000 and a multiplier of 2.5, and finding, among other things, that the
multiplier was in line with prevailing case law. Id. at 66.)5
5 The same is true in the Ninth Circuit. See, e.g., Vizcaino, supra, 290 F.3d at 1051 n.6 (upholding multiplier of 3.65, while noting that multipliers in class action cases typically range from 1.0 to 4.0, with the majority in the 1.5 to 3.0 range);Van Vranken v. Atlantic Richfield Co., 901 F.Supp.294, 298 (N.D. Cal. 1995) (Noting that “[m]ultipliers in the 3-4 range are common in lodestar awards for lengthy and complex class action litigation,” and that “1.8 ... would be a relatively low multiplier”); Keith v. Volpe, 501 F.Supp. 403, 414 (C.D. Cal. 1980) (awarding a 3.5 multiplier); In re Mercury Interactive Sec. Litig., No. 05-cv-03395-JF, 2011 WL 826797 at *2 (N.D. Cal. Mar. 3, 2011) (multiplier of 3.08 “is within the acceptable range”); Thieriot v. Celtic Ins Co., No. 10-04462 LB, 2011 1522385, *7 (N.D. Cal. Apr. 21, 2011) (multiplier of 1.94 is “within the customary range”); In re Google Referrer Header Privacy Litig., No. 5:10–CV–04809–EJD, 2015 WL 1520475, at *10 (N.D. Cal. Mar. 31, 2015) (multiplier of 2.2); In re Wachovia Corp, etc., No. 5:09-md-02015-JF, 2011 WL 1877630 at *7 (N.D. Cal. May 17, 2011) (multiplier of 2.2 “is well within the acceptable range”).
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As discussed below, the circumstances of this case amply justify awarding
Plaintiffs a lodestar multiplier.
a. Plaintiffs achieved an excellent result for the class
The lodestar multiplier method has always permitted an enhancement of the
lodestar to reflect the result achieved. Lealao, 82 Cal.App.4th at 46. Indeed, “[t]he
most critical factor” in evaluating fee awards “is the degree of success obtained” by
counsel for the class. Hensley, 461 U.S. at 436. Here, Plaintiffs achieved precisely
the relief they set out to obtain, and the agreed marketing changes likely exceed
what Plaintiffs could have won had the case been resolved through adjudication
rather than settlement.
Federal and California state courts are in accord that the value of such non-
monetary relief can and should be considered in addition to the amount of financial
recovery, if any, in evaluating the propriety of a requested attorney fee award. See,
e.g., City of Riverside v. Rivera, 477 U.S. 561, 574-79 (1986) (rejecting argument
that fee awards in civil rights cases should be proportional to the damages
recovered, but should instead reflect the contribution of the case to the public
interest); Quesada v. Thomason, 850 F.2d 537, 540 (9th Cir. 1988) ([I]t is
inappropriate for a district court to reduce a fee award below the lodestar simply
because the damages obtained are small.); Morales v. City of San Rafael, 96 F.3d
359, 364 (9th Cir. 1996), amended on denial of reh'g, 108 F.3d 981 (9th Cir. 1997)
(“However, the amount of damages recovered by Morales is not the sole indicator
of the extent of his success. *** Thus, in determining a reasonable fee award on
remand, the district court should consider not only the monetary results but also the
significant nonmonetary results [Plaintiff] achieved for himself and other members
of society. [Fn. omitted.]”); Woodland Hills Res. Ass’n v. City Council, 23 Cal.3d
917, 940 (1979) (“the ‘significant benefit’ that will justify an attorney fee award
[under Cal. Code Civil Proc. §1021.5] need not represent a ‘tangible’ asset or a
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‘concrete’ gain but ... may be recognized simply from the effectuation of a
fundamental constitutional or statutory policy.”)
This policy strongly applies to lawsuits that, like this one, successfully enjoin
a practice that violates the California UCL. For example, in Colgan v. Leatherman
Tool Group, Inc., 2006 135 Cal.App.4th 663, 703 (2006), the California Court of
Appeal affirmed an award of attorneys’ fees in a UCL action where injunctive relief
was awarded without restitution, stating:
Plaintiffs’ lawsuits concerned the enforcement of the California consumer protection laws – an important right affecting the public interest.... The lawsuits also resulted in a significant benefit for a substantial number of people by causing [Defendant] to change its labeling and advertising practices and by enjoining it from making future misleading representations.
See also Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 947 (affirming
fee award in UCL action that resulted in injunction prohibiting defendants from
violating Insurance Code sections pertaining to collection of broker fees but did not
result in restitution).
b. Plaintiffs faced a substantial risk of non-recovery
Plaintiffs’ Counsel assumed significant risk in this case, which they
undertook solely on a contingent basis with no guarantee of recovery. Chavez Decl.
¶¶ 42-46. Misleading marketing cases are difficult to prove; similar “defective
labeling” cases have failed; and, as the Court in the PAO recognized, Defendant
Wise challenged both the basis of liability and the propriety of class certification.
PAO pp. 12, 13. Risk multipliers are “intended to approximate market-level
compensation” for undertaking precisely such risky, but publicly important,
services. Ketchum, 24 Cal.4th at 1138; see Cazares v. Saenz, 208 Cal.App.3d 279,
287-88 (1989) (noting that a lawyer negotiating a contingent fee contract in a risky
case will demand a higher percentage fee than a lawyer whose case involves less
risk).
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c. The litigation was in the public interest
As reflected in California’s “private attorney general” statute, Code Civ.
Proc. §1021.5, this state has a strong public policy in favor of “encourag[ing] public
interest litigation that might otherwise be too costly to pursue,” and of ensuring that
“worthy claimants [are not] silenced or stifled because of a lack of legal resources.”
Folsom v. Butte County Ass’n of Gov’ts, 32 Cal.3d 668, 683-84 (1991). See State v.
Meyer, 174 Cal.App.3d 1061, 1073 (1985) (the “public service element, and
motivation to represent consumers and enforce laws” may justify lodestar
enhancement); Lealao, 82 Cal.App.4th at 41 (“‘this kind of consumer class action
litigation would not be pursued by counsel but for the expectation of receiving
enhanced fee awards in successful cases.’ [Citation.]”).
Here, Plaintiffs sued not to obtain the small personal benefit of a refund of
the purchase price of the food kits they bought, but because they were genuinely
concerned about the impact of Wise’s representations on other consumers,
including less sophisticated individuals lulled into a false sense of security by
Wise’s “food calculator” and other assurances. Borneman Decl. ¶ 4, Miller Decl. ¶
4. Their claims arise under the UCL, FAL, and CLRA, each of which has as its
purpose to protect the public and consumers from unscrupulous practices. See
Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1137 (C.D. Cal. 2005) (“The
goal of both the UCL and the FAL is the protection of consumers.”); Civil Code
§1760 (the CLRA “shall be liberally construed and applied to promote its
underlying purposes, which are to protect consumers against unfair and deceptive
business practices....”). The important public benefits achieved through this
settlement would not have occurred but for the efforts of Plaintiffs’ Counsel.
d. Counsel demonstrated a high degree of skill
Ketchum also supports a multiplier in this case because “the quality of
representation far exceeds the quality of representation that would have been
provided by an attorney of comparable skill and experience billing at the hourly rate
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used in the lodestar calculation.” 24 Cal.4th at 1138. This was a complex case
involving disputed and unsettled issues that settled quickly, efficiently, and on
terms that provide complete relief for the class. Counsel’s prosecution of this action
achieved a successful result with far less effort than might be expected, which in
turn would warrant an enhancement.
D. Payment Of Class Counsel’s Litigation Expenses Is Appropriate And Warranted
Plaintiffs are also entitled to recover the costs and expenses incurred in
prosecution of the class claims, which amount to $52,725.26. Chavez Decl. ¶¶ 47-
49 and Exh. E. The Settlement Agreement expressly states that “Plaintiffs are
entitled to an award of ... costs and expenses in an amount to be determined by the
Court (S.A., sec. H), and a cost award is authorized by Fed. R. Civ. Proc. 54(d)(1)
(“costs other than attorneys’ fees shall be allowed as of course to the prevailing
party unless the court otherwise directs”); Fed. R. Civ. Proc. 23(h) (in a certified
class action, “the court may award ... nontaxable costs that are authorized by law or
by the parties’ agreement”); and by California law. Beasley v. Wells Fargo Bank,
235 Cal.App.3d 1407, 1421-22 (2008).6 “[W]ith the exception of routine office
overhead normally absorbed by the practicing attorney, all reasonable expenses
incurred in the case preparation, during the course of litigation, or as an aspect of
settlement of the case” are subject to reimbursement. In re Media Vision Tech. Sec.
Litig., 913 F.Supp.1362, 1368 (N.D. Cal. 1996). See Harris v. Marhoefer, 24 F.3d
16, 19 (9th Cir. 1994) (“[Plaintiff] may recover as part of the award of attorney’s
fees those out-of-pocket expenses that ‘would normally be charged to a fee paying
client.’ [Citation].”); Bennett v. Simplexgrinnell LP, No. 11-CV-01854-JST, 2015
WL 12932332 (N.D. Cal. Sept. 3, 2015) at *7 (allowing expenses incurred in
6 This Court’s Local Rules specify that when a case is removed to this venue from Superior Court, a litigant may recover all costs recoverable in state court. Central District L.R. 54-3.13.
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connection with research, filing fees, travel, mediation, postage, copying, expert
witnesses, and document management and processing).
Here, pursuant to counsels’ agreement, lead counsel Chavez & Gertler
advanced all of the major costs of the litigation including substantial expert witness
fees ($34,812.45) and mediator fees ($8,145.00). Chavez & Gertler and the Braun
Law Group also incurred customary and routine litigation expenses such as filing
fees, service of subpoenas and other documents, deposition transcripts, postage,
printing, electronic research, and travel expenses (a combined total of $9,767.81.
The costs are itemized by category in the accompanying declarations of Mr. Chavez
and Mr. Braun and the exhibits thereto. Chavez Decl. ¶48 and Exh. D; Braun Decl.
¶14 and Exh. B. Chavez Exhibit D also includes copies of invoices for the
documenting the mediation and expert fees it paid. Those expenses were essential
to the successful prosecution of the Class claims. Chavez Decl. ¶ 50. Because
Plaintiffs’ Counsel incurred all of these expenses with absolutely no assurance of
recovery, they were highly motivated to proceed in the most cost-effective manner
possible. Id. ¶ 47.
E. Plaintiffs’ Request For Service Awards Should Be Granted
“[N]amed plaintiffs, as opposed to designated class members who are not
named plaintiffs, are eligible for reasonable incentive payments.” Staton v. Boeing
Co., 327 F.3d 938, 977 (9th Cir. 2003); Cellphone Term. Fee Cases, 186
Cal.App.4th 1380, 1393-1395 (2010). Such “awards are fairly typical in class action
cases,” Rodriguez v. West Publishing Corp., 563 F.3d 948, 958 (9th Cir. 2009), and
have been endorsed by the Ninth Circuit as appropriate “to compensate class
representatives for work done on behalf of the class, to make up for financial or
reputational risk undertaken in bringing the action, and, sometimes, to recognize
their willingness to act as a private attorney general.” Id, 563 F.3d at 958-59.
The amount of incentive awards requested here – the $3,000 authorized by
the Settlement Agreement (S.A. sec. I) – is at the low end of the spectrum typically
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awarded by District Courts in California, where an award of “$5,000 is
presumptively reasonable,” Harris v. Vector Marketing Corp., No. C-08-5198,
2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting cases), and awards of
up to $25,000 are not uncommon. See Smith v. Am. Greetings Corp. No. 14-CV-
02577-JST, 2016 WL 362395 (N.D. Cal. May 19, 2016) at *10; Van Vranken v.
Atl. Richfield Co., 901 F.Supp. at, 299; In re Online DVD-Rental Antitrust Litig.,
779 F.3d 934, 947-48 (9th Cir. 2015); Moore v. Verizon Communic. Inc., No. C 09–
1823 SBA, 2013 WL 4610764, at *15 (N.D. Cal. Aug. 28, 2013); In re TFT-LCD
(Flat Panel) Antitrust Litig., M 07-1827 SI, 2013 WL 1365900, at *17 (N.D. Cal.
Apr. 3, 2013) (approving incentive awards from $7,500 to $15,000 in recognition of
“the contribution these class representatives and named plaintiffs made to this
litigation.”).
The Court should consider a number of factors in determining whether to
provide incentive awards, including “‘(1) the risk to the class representative in
commencing suit, both financial and otherwise; (2) the notoriety and personal
difficulties encountered by the class representative; (3) the amount of time and
effort spent by the class representative; (4) the duration of the litigation; and (5) the
personal benefit (or lack thereof) enjoyed by the class representative as a result of
the litigation.’” Walsh v. Kindred Healthcare, No. 11–cv–00050–JSW, 2013 WL
6623224, at *4 (N.D. Cal. Dec. 16, 2013), quoting Van Vranken, 901 F.Supp. at
299. Because Plaintiffs efficiently litigated this proceeding and the class
representatives’ depositions were noticed but ultimately not taken, Plaintiffs here
have not requested an enhanced award. However, as set forth in their accompanying
declarations, Mr. Miller and Mr. Borneman did each devote over 20 hours of their
time, risked the possibility of an adverse cost award, and contributed a very
valuable public service by calling Wise to account for its misleading and potentially
dangerous advertising. The requested awards are well-deserved.
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Plaintiffs recognize that some recent decisions have also held that courts
should “consider the proportionality between the incentive payment and the range
of class members’ settlement awards.” Deatrick v. Securitas Sec. Services USA,
Inc., 13-CV-05016-JST, 2016 WL 5394016, at *8 (N.D. Cal. Sept. 27, 2016).
However, strict proportionality is not required, with awards varying substantially
depending on the contributions of the representatives. See, e.g., Boring v. Bed Bath
& Beyond, No. 12-CV-05259-JST, 2014 WL 2967474, at *3 (N.D. Cal. June 30,
2014) (finding $7,500 was a reasonable enhancement award even though the
average payment to class members was approximately $170.80); Harris, supra,
2012 WL 381202 at *7-8 (granting $12,500 award from a $13 million settlement
fund, though the average payment was approximately $100).
Further, a strict proportionality requirement would have the effect of
eliminating incentive awards in consumer class actions that, like this one, are
specifically designed to enable consumers to call to account corporate defendants
whose conduct harms many individuals in amounts too small to warrant individual
litigation. As the Northern District has stated in other deceptive food packaging
cases, “if class actions are not available in small-ticket consumer-deception suits
like this one, then the wrongs that those suits allege will often escape redress, and
Rule 23(b)(3) will be nullified just where it is most socially useful.” Brown v. Hain
Celestial Grp., Inc., No. C-11-03082 LB, 2014 WL 6483216 (N.D. Cal. Nov. 18,
2014) at *10, referencing Lilly v. Jamba Juice Co., 308 F.R.D. 231, 238 (N.D. Cal.
2014).
In any case, the requested $3,000 awards are not unduly disproportional.
Although the average amount of Settlement Class Member claims will vary, the
amount lies midway in the range of prices of the Long-Term Food Kits at issue, $75
to $7,000, and claimants will receive settlement rebates of $15 to $1,400 per
product.
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III. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court at the
Fairness Hearing enter an order awarding (a) $ 966,453.75 to Class Counsel,
collectively, as attorneys’ fees, (b) $52,725.66 to Class Counsel as reimbursed costs
and litigation expenses, and (c) $3,000 to Plaintiff Miller and $3,000 to Plaintiff
Borneman as incentive awards.
Respectfully submitted,
Dated: May 9, 2019 CHAVEZ & GERTLER LLP BRAUN LAW GROUP, PC LAW OFFICES OF ANDREW KIERSTEAD By: _________________________ Nance F. Becker Attorneys for Plaintiffs and the Putative Class