fee brief draft final - carrie couser v. dish one satellite, llc€¦ · · 2017-07-26memorandum...

MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES, COSTS AND SERVICE AWARD CASE NO.: 15-cv-02218-CBM-DTB

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KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (SBN: 249203) [email protected] Jason A. Ibey Esq. (SBN: 284607) [email protected] 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 [Additional Counsel On Signature Page] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No.: 15-cv-02218-CBM-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES, COSTS AND SERVICE AWARD DATE: November 14, 2017 TIME: 11:00 a.m. CRTRM: 8B JUDGE: Hon. Consuelo B. Marshall

[Declaration of Abbas Kazerounian; Declaration of Joshua B. Swigart; Declaration of Todd M. Friedman; Declaration of Jason A. Ibey; Declaration of Carrie Couser]

CARRIE COUSER, on behalf of herself and all others similarly situated, Plaintiff,

v. DISH ONE SATELLITE, LLC,

Defendant.

Case 5:15-cv-02218-CBM-DTB Document 109-1 Filed 07/20/17 of 37 Page ID #:1692

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................. iii

I. INTRODUCTION ........................................................................................ 1

II. SUMMARY OF PLAINTIFF’S COUNSEL’S ATTORNEYS’ FEES ................................................................................... 2

A. Summary Chart .................................................................................. 2

B. Time Records ...................................................................................... 2

C. Reasonableness of Hourly Rates ....................................................... 3

1. Experience of Counsel and Hourly Rates Approved In Other Cases ..................................................... 3

a. Abbas Kazerounian - Partner ......................................... 3

b. Joshua B. Swigart – Partner .......................................... 4

c. Todd M. Friedman – Partner ......................................... 4

d. Jason A. Ibey – Senior Associate ................................... 4

e. Adrian Bacon – Senior Associate ................................... 5

2. National Law Journal Survey and Supporting Case Law ............................................................ 5

D. Percentage of the Fund ...................................................................... 7

a. Class Counsel have obtained great results for the Class in comparison to awards made in similar cases ........................................ 8

b. The risks of litigation support the requested fees ........ 10

c. The skill required and quality of work performed support the requested fees .......................... 14

d. Class Counsels’ undertaking of this Action on a contingency-fee basis supports the requested fees ........................................... 15

E. Lodestar ............................................................................................. 17

1. Results Obtained .................................................................. 17

2. Contingency Fee ................................................................... 18


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3. Complexity of the Issues ..................................................... 18

4. Class Counsels’ Experience, Reputation and Ability ........................................................ 19

5. Arm’s-length Negotiations .................................................. 19

III. CLASS COUNSELS’ REQUEST FOR LITIGATION COSTS OF UP TO $30,000 IS REASONABLE ................................. 21

IV. A SERVICE AWARD OF $5,000 IS REASONABLE ....................... 23

V. CONCLUSION ...................................................................................... 25


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TABLE OF AUTHORITIES

CASES

Aarons v. BMW of N. Am., LLC,

2014 U.S. Dist. LEXIS 118442 (C.D. Cal. Apr. 29, 2014) ............................... 5, 6

Abdeljalil v. GE Capital Retail Bank,

3:12-cv-02078-JAH-MDD (S.D. Cal.) ................................................................... 25

Adams v. AllianceOne Receivables Management, Inc., et al.,

No. 08-cv-00248, Dkt. No. 137 (S.D. Cal. 2008) ............................................ 8, 10

Amadeck v. Capital One Fin. Corp.,

80 F. Supp. 3d 781 (N.D. Ill. 2015) ...................................................................... 18

Baird v. Sabre Inc.,

2014 WL 320250 (C.D. Cal. Jan 28, 2014) .................................................... 11, 16

Barani v. Wells Fargo Bank, N.A.,

2014 WL 1389329 (S.D. Cal. Apr. 9, 2014) ........................................................ 10

Barbosa v. Cargill Meat Solutions Corp.,

297 F.R.D. 431 (E.D. Cal. 2013) ............................................................................ 7

Blum v. Stevenson,

465 U.S. 886 (1994) ............................................................................................... 3

Browne v. Am. Honda Motor Co., 09-cv-06750 MMM DTBX,

2010 WL 9499073 (C.D. Cal. Oct. 5, 2010) ...................................................... 5, 7

Chan v. Sutter Health Sacramento Sierra Region,

No. LA CV15-02004 JAK (AGRx), 2017 U.S. Dist. LEXIS 32236

(C.D. Cal. Feb. 14, 2017) ..................................................................................... 14

Charvat v. NMP, LLC,

No. 2:09-cv-209, 2012 U.S. Dist. LEXIS 139505

(S.D. Ohio Sep. 27, 2012) .................................................................................... 13


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Cellphone Termination Fee Cases,

186 Cal. App. 4th 1380 (Cal. Ct. App. 2010) ....................................................... 23

Couser v. Dish One Satellite, LLC,

No. 5:15-cv-02218-CBM-DTB, 2017 U.S. Dist. LEXIS 74747

(C.D. Cal. May 16, 2017) ..................................................................................... 20

Davis v. City and County of San Francisco,

976 F.3d 1536, 1546 (9th Cir. 1992) (9th Cir. 1992) ............................................ 3

Donaca v. Dish Network, LLC,

303 F.R.D. 390 (D. Colo. 2014) ........................................................................... 11

Fischel v. Equit. Life Assurance Soc’y,

307 F.3d 997 (9th Cir. 2002) .......................................................................... 18, 21

Fleisher v. Phx. Life Ins. Co.,

2015 U.S. Dist. LEXIS 121574 (S.D.N.Y. Sep. 9, 2015) .................................... 20

Fox v. Asset Acceptance, LLC,

2:14-cv-00734-GW-FFM (C.D. Cal. July 1, 2016) ................................................ 10

Glass v. UBS Fin. Servs., Inc.,

2007 WL 221862 (N.D. Cal. 2007) ................................................................ 18, 21

Grant v. Capital Mgmt. Servs., L.P.,

2014 U.S. Dist. LEXIS 29836 (S.D. Cal. Mar. 5, 2014) ..................................... 11

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) .................................................................... 1, 17, 19

Hartless v. Clorox Co.,

273 F.R.D. 630 (S.D. Cal. 2011) ............................................................................ 6

Hensley v. Eckerhart,

461 U.S. 424 (1983) ............................................................................................... 9

In re Activision Sec. Litig.,

723 F. Supp. 1373 (N.D. Cal. 1998) ................................................................... 7, 8


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In re Cardizem CD Antitrust Litig.,

218 F.R.D. 508 (E.D. Mich. 2003) ....................................................................... 20

In re Immune Response Sec. Litig.,

497 F. Supp. 2d 1166 (S.D. Cal. 2007) ............................................................ 3, 22

In re Linerboard Antitrust Litig.,

No. 1261, 2004 U.S. Dist. LEXIS 10532, 2004 WL 1221350

(E.D. Pa. June 2, 2004) ......................................................................................... 21

In re Jiffy Lube International, Inc. Text Spam Litigation,

Case No. 11-MD-02261-JM-JMA, Dkt. No. 90-1

(S.D. Cal. Dec. 30, 2012) ............................................................................... 10, 16

In re Omnivision Techs.,

559 F. Supp. 2d 1036 (N.D. Cal. 2007) ...................................................... 7, 10, 16

In re Rite Aid Corp. Sec. Litig.,

396 F.3d 294 (3d Cir. Pa. 2005) ............................................................................. 3

In re Washington Pub. Power Supply Sys. Sec. Litig.,

19 F.3d 1291 (9th Cir, 1994) ................................................................................ 15

Kearney v. Hyundai Motor Am.,

2013 WL 3287996 (C.D. Cal. June 28, 2013) ........................................................ 6

Kerr v, Screen Extras Guild, Inc.,

526 F.2d 67 (9th Cir. 1975) .................................................................................. 17

Klee v. Nissan N. Am., Inc.,

No. CV 12-08238 AWT (PJWx), 2015 U.S. Dist. LEXIS 88270,

(C.D. Cal. July 7, 2015) ............................................................................. 6, 23, 25

Kline v. Post Holdings Inc.,

3:15-cv-02348-AJB-RBB (S.D. Cal. April 6, 2017) .......................................... 4, 5


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Krakauer v. Dish Network L.L.C.,

311 F.R.D. 384 (M.D. N.C. Sept 9, 2015) ............................................................ 11

Linney v. Cellular Alaska Part.,

1997 U.S. Dist. LEXIS 24300 (N.D. Cal. July 18, 1997) ................................... 24

Lo v. Oxnard European Motors, LLC,

2012 WL 1932283 (S.D. Cal., May 29, 2012) ..................................................... 17

Louie v. Kaiser Found. Health Plan, Inc.,

2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2008) .................................................. 24

Lundell v. Dell, Inc.,

CIVA C05-3970 JWRS, 2006 WL 3507938 (N.D. Cal. Dec. 5, 2006) ............... 19

Malta v. Freddie Mac & Wells Fargo Home Mortgage,

10-cv-1290, Dkt. Nos. 56-1 and 91 (S.D. Cal. June 16, 2013) ............................ 21

Me. State Ret. Sys. v. Countrywide Fin. Corp.,

No. 2:10-CV-00302 MRP (MANx), 2013 U.S. Dist. LEXIS 179190

(C.D. Cal. Dec. 5, 2013) ....................................................................................... 20

Media Vision Tech. Sec. Litig.,

913 F. Supp. 1362 (N.D. Cal. 1996) ............................................................... 21, 22

Milliron v. T-Mobile USA, Inc.,

2009 WL 3345762 (D.N.J. Sept. 14, 2009) .......................................................... 20

Mills v. Electric Auto-Lite Co.,

396 U.S. 375 (1970) ............................................................................................. 21

Morey v. Loius Vuitton N. Am. Inc.,

No. 11cv1517 WQH (BLM), 2014 U.S. Dist. LEXIS 3331

(S.D. Cal. Jan. 9, 2014) ......................................................................................... 25

Nat’l Rural Tele. Coop v. DIRECTV, Inc.,

221 F.R.D 523 (C.D. Cal. 2004) ............................................................................. 9


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Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San Francisco,

688 F.2d 615 (9th Cir. 1982) ................................................................................ 19

Ontiveros v. Zamora,

303 F.R.D. 356 (E.D. Cal. 2014) .......................................................................... 23

Parkinson v. Hyundai Motor Am.,

796 F. Supp. 2d 1160 (C.D. Cal. 2010) .................................................................. 7

POM Wonderful, LLC v. Purely Juice, Inc.,

2008 WL 4351842 (C.D. Cal) ................................................................................ 6

Radcliffe v. Experian Info. Solutions, Inc.,

2013 U.S. App. LEXIS 9126 (9th Cir. Mar. 4, 2013) ......................................... 25

Robinson v. Paramount Equity Mortg., LLC,

No. 2:14-cv-02359-TLN-CKD, 2017 U.S. Dist. LEXIS 3693

(E.D. Cal. Jan. 9, 2017) ........................................................................................ 12

Rodriguez v. Disner,

688 F.3d 645 (9th Cir. 2012) ................................................................................ 22

Rodriguez v. West Publishing Corp.,

563 F.3d 948 (9th Cir. 2009) ................................................................................ 23

Romero v. Dep't Stores Nat'l Bank,

No. 15-CV-193-CAB-MDD, 2016 U.S. Dist. LEXIS 110889

(S.D. Cal. Aug. 5, 2016) ....................................................................................... 11

Rutti v. Lojack Corp.,

No. SACV 06-350 DOC (JCx), 2012 U.S. Dist. LEXIS 107677,

2012 WL 3151077 (C.D. Cal. July 31, 2012) ................................................... 7, 22

Sanchez v. Frito-Lay, Inc.,

2015 U.S. Dist. LEXIS 102771 (E.D. Cal. Aug. 5, 2015) ................................... 23

Sandoval v. Tharaldson Emp. Mgmt., Inc.,

2010 WL 2486346 (C.D. Cal. June 15, 2010) ...................................................... 20


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Serrano v. Unruh,

32 Cal. 3d 621 (1982) ............................................................................................. 3

Shames v. Hertz Corp.,

2012 U.S. Dist. LEXIS 158577 (S.D. Cal. Nov. 5, 2012) ............................... 5, 13

Sherman v. Kaiser Foundation Health Plan, Inc.,

3:13-cv-00981-JAH-JMA (S.D. Cal. May 12, 2015) ..................................... 10, 21

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) .......................................................................................... 11

Staton v. Boeing Co.,

327 F.3d 938 (9th Cir. 2003) ................................................................................ 23

Stemple v. QC Holdings, Inc.,

No. 12-cv-01997-BAS (WVG), 2016 U.S. Dist. LEXIS 157244

(S.D. Cal. Nov. 7, 2016) ......................................................................................... 8

Tarlecki v. Bebe Stores, Inc.,

2009 WL 3720872 (N.D. Cal. Nov. 3, 2009) ....................................................... 23

Texas v. American Blast Fax, Inc.,

121 F. Supp. 2d 1085 (W.D. Tex. 2000) .............................................................. 17

United States v. DIRECTV, Inc.,

2005 U.S. Dist. LEXIS 46942 (C.D. Cal. Dec. 14, 2005) ................................... 13

Van Patten v. Vertical Fitness Grp., LLC,

No. 14-55980,

2017 U.S. App. LEXIS 1591 (9th Cir. Jan. 30, 2017) ......................................... 11

Van Vranken v. Atl. Richfield Co.,

901 F. Supp. 294 (N.D. Cal. 1995) ....................................................................... 23

Vandervort v. Balboa Capital Corp.,

88 Fed. R. Serv. 3d 365 (C.D. Cal. 2014) ............................................................ 25


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Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002) .......................................................... 7, 8, 10, 15, 16

Warnick v. Dish Network LLC,

301 F.R.D. 551 (D. Colo. 2014) ........................................................................... 11

West v. Circle K Stores, Inc.,

2006 U.S. Dist. LEXIS 76558 (E.D. Cal. Oct. 19, 2006) .................................... 24

Wilkins v. HSBC Bank Nev., N.A.,

2015 U.S. Dist. LEXIS 23869 (N.D. Ill. Feb. 27, 2015) ...................................... 11

Williams v. Costco Wholesale Corp.,

No. 02-cv-2003-IEG-AJB, 2012 WL 2721452 (S.D. Cal. Jul. 7, 2010) .............. 25

Wojcik v. Buffalo Bills Inc.,

No. 8:12-cv-02414-SDM-TBM, Dkt. No. 79

(M.D. Florida Aug. 25, 2014) .............................................................................. 10

STATUTES

47 U.S.C. § 227(a)(1) .............................................................................................. 18

47 U.S.C. § 227(b)(3) ............................................................................................... 9

47 U.S.C. § 227(c)(5) .......................................................................................... 9, 13

RULES

Fed. R. Civ. P. 23 ....................................................................................................... 1

Fed. R. Civ. P. 323(a)(4) ......................................................................................... 21

Fed. R. Civ. P. 23(h) ........................................................................................ 2, 9, 23

REGULATIONS

47 C.F.R. § 64.1200(c)(5) ....................................................................................... 24


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OTHER

2 Joseph M. McLaughlin,

McLaughlin on Class Actions § 6:7 (8th ed. 2011) ............................................. 8

Federal Judicial Center,

Manual for Complex Litigation, § 27.71 (4th ed. 2004) ..................................... 20


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I. INTRODUCTION

In accordance with the Court’s May 16, 2017 preliminary approval order

(Dkt. No. 108), plaintiff Carrie Couser (“Plaintiff” or “Ms. Couser”) submits this

timely motion for attorneys’ fees, costs and service award in connection with the

proposed settlement. Under the Settlement Agreement (“Agr.”), Plaintiff agreed

with defendant, Dish One Satellite, LLC (“Defendant” or “Dish One”) to move

separately for attorneys’ fees, costs and service award. Agr. §§ III.J and K.

According to Federal Rules of Civil Procedure, “[i]n a certified class action,

the court may award reasonable attorneys’ fees and nontaxable costs that are

authorized by law or by the parties agreement.” Fed. R. Civ. P. 23. As noted by

Plaintiff’s motion for preliminary approval of class action Settlement (Dkt. Nos.

102-1, 105 and 107), which was approved by this Court (Dkt. No. 108), the

Settlement Agreement in this action resulted from arm’s length negotiations,

including mediation before Eric Green. The arm’s length negotiations, especially

those before a seasoned mediator, serve as “independent confirmation” of the

reasonableness of the settlement’s terms including the attorneys’ fees, costs, and

service award sought by this Motion. See Hanlon v. Chrysler Corp., 150 F.3d

1011, 1029 (9th Cir. 1998). Under these circumstances, the Court may give

deference to the judgment of Plaintiff and Class Counsel regarding the

reasonableness of the requested fees.

Through this fee petition, Plaintiff seeks Court approval of: (1) attorneys’

fees of $233,750; (2) actual litigation costs (up to $30,000); and (3) a service

award to Ms. Couser of $5,000. These amounts are to be paid by Defendant from

the Settlement Fund. See Agr. §§ III.J and K. The reasonableness of the requested

fees is supported by the percentage-of-the-fund and lodestar approaches.

As stated herein and as detailed in the supporting declarations filed herewith,

these sums are fair and reasonable as they resulted from arm’s length negotiations

and are further supported by the percentage-of-the-fund and lodestar



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methodologies. See Declaration of Abbas Kazerounian (“Kazerounian Decl.”), ¶¶ 6-

7; Declaration of Joshua B. Swigart (“Swigart Decl.”) ¶¶ 5-6; Declaration of Todd

M. Friedman (“Friedman Decl.”), ¶¶ 3-19; Declaration of Jason A. Ibey (“Ibey

Decl.”), ¶¶ 4-7, 29-31.

II. SUMMARY OF PLAINTIFF’S COUNSELS’ ATTORNEYS’ FEES “In a certified class action, the court may award reasonable attorneys’ fees

and nontaxable costs that are authorized by law or by the parties agreement.” Fed.

R. Civ. P. 23(h) (underlining added).

A. Summary Chart

Below is a summary chart of Plaintiff’s counsel’s time working on the case,

which is supported by concurrently filed declarations. Kazerounian Decl., ¶¶ 6-7;

Swigart Decl., ¶¶ 5-6; Friedman Decl., ¶¶ 3-4; Ibey Decl., ¶¶ 4-7, 29-31. HRS. INCURRED RATE/HR. TOTAL

KAZEROUNI LAW GROUP, APC - - -

A) ABBAS KAZEROUNIAN - PARTNER

107.1 $605 $64,795.5

B) JASON A. IBEY - ASSOCIATE 327.70 $380 $124,526

HYDE & SWIGART - - -

A) JOSHUA B. SWIGART - PARTNER

29.6 $605 $17,908

LAW OFFICES OF TODD M. FRIEDMAN

- - -

A) TODD M. FRIEDMAN - PARTNER

73.7 $650 $47,905

B) ADRIAN BACON - ASSOCIATE 15.6 $575 $8,970

TOTAL COMBINED LODESTAR 553.7 - $264,104.5

B. Time Records

Class Counsel have categorized by major task in their respective

declarations the amount of attorney hours incurred in this litigation. Kazerounian

Decl., ¶¶ 6-7; Swigart Decl., ¶¶ 5-6; Friedman Decl., ¶¶ 3-4, 9; Ibey Decl., ¶¶ 5-6.



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Courts may “rely on summaries submitted by the attorneys and [the court] need

not review actual billings,” In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 307 (3d

Cir. Pa. 2005), cited approvingly in In re Immune Response Sec. Litig., 497 F.

Supp. 2d 1166, 1176 (S.D. Cal. 2007) (“Here, counsel have provided sworn

declarations from attorneys attesting to the experience and qualifications of the

attorneys who worked on the case, the hourly rates, and the hours expended.”).1

C. Reasonableness of Hourly Rates

Plaintiff’s attorneys’ hourly rates are also reasonable. In assessing the

reasonableness of an attorney’s hourly rate, courts consider whether the claimed

rate is “in line with those prevailing in the community for similar services by

lawyers of reasonably comparable skill, experience and reputation.” Blum v.

Stevenson, 465 U.S. 886, 895, n.11 (1994). See also Davis v. City and County of

San Francisco, 976 F.3d 1536, 1546 (9th Cir. 1992); and, Serrano v. Unruh, 32

Cal. 3d 621, 643 (1982).

1. Experience of Counsel and Hourly Rates Approved In Other Cases

Plaintiff’s counsel here are experienced members of the bar with extensive

experience in the area of class actions and complex litigation involving consumer

claims like those at issue here under the TCPA.

a. Abbas Kazerounian - Partner

Mr. Kazerounian (of Kazerouni Law Group, APC) has considerable

experience litigating TCPA class actions. See Kazerounian Decl., ¶¶ 15-44 (listing

some of the consumer cases worked on and relevant experience). Mr. Kazerounian

has also lectured on the TCPA and is an adjunct professor at California Western

School of Law teaching a consumer law course featuring the TCPA. Id. at ¶ 23.

Mr. Kazerounian has argued two appeals before the Ninth Circuit Court of

Appeals in an action filed under the TCPA. Id. at ¶¶ 20-21.

1 Class Counsel are willing to provide detailed billing records if requested by the Court.



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Mr. Kazerounian estimates incurring 107.1 hours in this litigation, as

indicated in the Summary Chart and accompanying declaration. Kazerounian

Decl., ¶¶ 6-7. Mr. Kazerounian was approved for an hourly rate of $605 in Kline

v. Post Holdings Inc., 3:15-cv-02348-AJB-RBB (S.D.Cal. April 6, 2017) [Exhibit

1].2 Mr. Kazerounian has been approved at a similar hourly rate in other cases.

Kazerounian Decl., ¶ 9.

b. Joshua B. Swigart - Partner

Mr. Swigart was approved for an hourly rate of $605 in Kline, 3:15-cv-

02348-AJB-RBB (S.D.Cal. April 6, 2017). Mr. Swigart has been approved at a

similar hourly rate in other cases. Swigart Decl., ¶ 7. Mr. Swigart (of Hyde &

Swigart) also has considerable experience litigating TCPA class actions. See

Swigart Decl., ¶¶ 11-14 (listing some of the consumer cases worked on and

relevant experience). Mr. Swigart estimates incurring 29.6 hours in this litigation,

as indicated in the Summary Chart and accompanying declaration. Mr. Swigart

has argued successfully before the Ninth Circuit Court of Appeals in an action

under the TCPA in Flores v. ADIR International, LLC, No. 15-56260. Id. at ¶ 15.

c. Todd M. Friedman - Partner

Mr. Friedman (of Law Office of Todd M. Friedman) has substantial

experience litigating consumer cases. See Friedman Decl., ¶¶ 16-19 (listing some

of the consumer cases worked on and relevant experience). Mr. Friedman

estimates incurring 73.7 hours in this litigation, as indicated in the Summary Chart

and accompanying declaration. Id. at ¶¶ 3-4. Mr. Friedman’s hourly rate of $650

based on his near 16 years of experience is reasonable. Id. at ¶¶ 3-8, 15-19.

d. Jason A. Ibey – Senior Associate

Associate attorney Jason A. Ibey (of Kazerouni Law Group, APC) has

contributed much to this litigation, and has significant experience in litigating

consumer class actions, especially TCPA class actions. See Ibey Decl., ¶¶ 17-27 2 Exhibits are to the Declaration of Jason A. Ibey, unless otherwise stated.



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(listing some of the consumer cases worked on and relevant experience).

Mr. Ibey estimates incurring 327.7 hours in this litigation, as indicated in

the Summary Chart and accompanying declaration. Mr. Ibey was recently

approved for an hourly rate of $380 in Kline, 3:15-cv-02348-AJB-RBB (S.D.Cal.

Apr. 6, 2017), and has been approved at a similar hourly rate in other cases. Ibey

Decl., ¶¶ 29-31.

e. Adrian Bacon – Senior Associate

Associate attorney Adrian Bacon (of Law Office of Todd M. Friedman) has

also contributed much to this litigation, and has significant experience in litigating

consumer class actions, including TCPA class actions. See Friedman Decl., ¶¶ 11-

13 (listing some of the consumer cases worked on and relevant experience).

Mr. Bacon estimates incurring 15.6 hours in this litigation, as indicated in

the Summary Chart and accompanying declaration of Mr. Friedman. Id. at ¶ 9.

Mr. Bacon was recently approved for an hourly rate of $575. Id. at ¶ 10. Mr.

Bacon has been approved at a similar hourly rate in other cases. Id. at ¶ 11. Mr.

Bacon is also currently being transitioned into a partnership role. Id.

In further support of the hourly rate for Mr. Ibey and Mr. Bacon, see

Browne v. American Honda Motor Co., 2010 U.S. Dist. LEXIS 144823, at *26

(C.D. Cal. Oct. 5, 2010) finding that associate's hourly rate of $380 falls within

the range of billing rates for lawyers two years out of school); Aarons v. BMW of

N. Am., LLC, 2014 U.S. Dist. LEXIS 118442 at *45 (C.D. Cal. Apr. 29, 2014)

(approving hourly rates for associates up to $550 in consumer class action). 3

2. National Law Journal Survey and Supporting Case Law

According to a survey from the National Law Journal in 2012 (December 7,

2012), the average hourly rate for a partner at a surveyed law firm in Irvine,

3 According to the Court in Shames v. Hertz Corp., 2012 U.S. Dist. LEXIS 158577, *60 (S.D. Cal. Nov. 5, 2012) (“[t]he National Law Journal data reveals that rates at six national defense firms with San Diego offices averaged between $550 and $747 per hour for partners and $346 and $508 per hour for associates.”



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California, was $525, with a high of $760 and a low of $425; and the average

hourly rate for a partner at a surveyed law firm in Riverside, California was $435,

with a high of $625 and a low of $310. See Exhibit 2. Thus, the billing rate for the

partners (i.e., Mr. Kazerounian, Mr. Swigart, and Mr. Friedman) is well within the

normal range of fees charged by firms in Southern California for partner work.4

According to the same 2012 National Law Journal Billing Survey referenced

above, the average hourly rate for an associate at a surveyed law firm in Irvine,

California, was $330, with a high of $420 and a low of $295; and the average

hourly rate for an associate at a surveyed law firm in Riverside, California was

$250, with a high of $390 and a low of $225.

Such hourly rates are further substantiated by the 2013 NLJ Billing Survey,

the average hourly rate for a partner at a surveyed law firm in Irvine, California,

was $555, with a high of $785 and a low of $440; and, the average hourly rate for a

partner at a surveyed law firm in Costa Mesa, California was $490, with a high of

$675 and a low of $345. See Exhibit 3. The average hourly rate for a partner at a

surveyed law firm in Los Angeles, California was $615, with a high of $680 and a

low of approximately $525. Based on the same survey, the average hourly rate for

an associate at a surveyed law firm in Costa Mesa, California was $320, with a

high of $500 and a low of $230; and the average hourly rate for an associate at a

surveyed law firm in Los Angeles, California was $365, with a high of $375 and a

low of $350.

Case law from courts in this District also support the hourly rates for Class

Counsel. See Klee v. Nissan N. Am., Inc., 2015 U.S. Dist. LEXIS 88270 (C.D. Cal.

July 7, 2015) (supporting hourly rates for senior attorneys between $370-$695 in

4 See Hartless v. Clorox Co., 273 F.R.D. 630, 643-44 (S.D. Cal. 2011), aff’d in part, 473 F. Appx. 716 (9th Cir. 2012) (approving hourly rates in the San Diego area of $675-795 for partners, up to $410 for associates, and up to $345 for paralegals); see also POM Wonderful, LLC v. Purely Juice, Inc., 2008 WL 4351842 at *4 (C.D. Cal) (finding partner rates of $750 to $475 and associate rates of $425 to $275 reasonable).



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consumer class action); Aarons v. BMW of N. Am., LLC, 2014 U.S. Dist. LEXIS

118442 (C.D. Cal. Apr. 29, 2014) (supporting hourly rates for partners up to $775

in consumer class action); Kearney v. Hyundai Motor Am., No. SACV 09-1298-

JST, 2013 WL 3287996, at *8 (C.D. Cal. June 28, 2013) (authorizing hourly rates

for attorneys ranging from $650-$800 in consumer class action); Parkinson v.

Hyundai Motor Am., 796 F. Supp. 2d 1160, 1172 (C.D. Cal. 2010) (supporting

hourly rates between $445-$675 in consumer class action); Browne v. Am. Honda

Motor Co., 09-cv-06750 MMM DTBX, 2010 WL 9499073, at *7 (C.D. Cal. Oct.

5, 2010) (authorizing hourly rates between $445-$675 for attorneys with

experience ranging from seven to fifteen years of experience in consumer class

action).5 Therefore, the hourly rates of Plaintiff’s counsel are reasonable.

D. Percentage of the Fund

Courts consider a number of factors to determine the appropriate percentage

of the fund to awarding as attorneys’ fees in a common fund case including: (a) the

results achieved; (b) the risk of litigation; (c) the skill required and the quality of

work; (d) the contingent nature of the fee; and, (e) awards made in similar cases.

Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047, 1048-1050 (9th Cir. 2002).

The “benchmark” percentage for attorney’s fees in the Ninth Circuit is 25% of

the common fund with costs and expenses awarded in addition to this amount.

Vizcaino, 290 F.3d at 1047. “However, in most common fund cases, the award

exceeds that [25%] benchmark.” In re Omnivision Techs., 559 F. Supp. 2d 1036,

1047 (N.D. Cal. 2007) (citing In re Activision Sec. Litig., 723 F. Supp. 1373, 1378

(N.D. Cal. 1998)). See also Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D.

431, 448 (E.D. Cal. 2013) (“[t]he typical range of acceptable attorneys’ fees in the

Ninth Circuit is 20 percent to 33.3 percent of the total settlement value”).

“[A]bsent extraordinary circumstances that suggest reasons to lower or increase the

5 See also Rutti v. Lojack Corp., 2012 U.S. Dist. LEXIS 107677, *33 (C.D. Cal. July 31, 2012) (approving hourly rates of $650 and $750 in FLRA class action).



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percentage, the rate should be set at 30%.” Omnivision, 559 F. Supp. 2d at 1048,

citing In re Activision Sec. Litig., 723 F.Supp. at 1378.

Courts have awarded 25% or more in attorneys’ fees in several TCPA class

action settlements in which Plaintiff’s counsel have been involved. For example, a

court awarded attorneys’ fees representing 30% of the settlement fund in a TCPA

matter entitled, Adams v. AllianceOne Receivables Management, Inc., et al., No.

08-cv-00248, Dkt. No. 137 (S.D. Cal. 2008) (awarding attorneys’ fees of

$2,700,000, representing 30% of the settlement fund) [Exhibit 4]. See also Stemple

v. QC Holdings, Inc., No. 12-cv-01997-BAS (WVG), 2016 U.S. Dist. LEXIS

157244, *8 (S.D. Cal. Nov. 7, 2016) (awarding attorneys’ fees of 30% of the fund

in a TCPA settlement).

Attorneys’ fees are often paid from the common fund, thereby reducing class

members’ recovery, as is this case here. Class Counsel’s request for attorneys’ fees

in the amount of $233,750 equates to 25% of the $935,000 Settlement Fund (Dkt.

No. 105, 2:4-7; Agr. § III.J), which is reasonable considering the Ninth Circuit’s

benchmark and more recent precedent, as well as the risks and results obtained in

this Settlement. The Settlement Class Members were adequately apprised that Class

Counsel would be seeking up to 25% of the Settlement Fund in attorneys’ fees in the

class notice. [Dkt. Nos. 105:2:4-7; 105-6; 105-8, ¶ 7; 105-10.] As of July 18, 2017,

no class member has objected to the fee request. Ibey Decl., ¶ 16.

In addition, the fee request is fully supported by the factors enunciated in

Vizcaino including: (a) the results achieved; (b) the risk of litigation; (c) the skill

required and the quality of work; (d) the contingent nature of the fee; and, (e) awards

made in similar cases.

a. Class Counsel have obtained great results for the Class in comparison to awards made in similar cases

The results obtained for the class are generally considered to be the most

important factor in determining the appropriate fee award in a common fund case.



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See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); Omnivision, 559 F. Supp. 2d at

1046; see also Federal Judicial Center, Manual for Complex Litigation, § 27.71, p.

336 (4th Ed. 2004) (the “fundamental focus is on the result actually achieved for

class members”) (citing Fed. R. Civ. P. 23(h) committee note). Standing alone, this

factor supports Class Counsel’s fee request.

This action has been litigated since October 28, 2015. Following mediation

with Eric Green on December 16, 2016, the parties were able to reach an

agreement in principle to settle the action. Agr. § I.C.; Ibey Decl., ¶ 7. The

Settlement secured by Plaintiff and Class Counsel provides a great recovery for

Settlement Class Members as compared to similar TCPA cases, despite the

uncertainty of recovery in TCPA class actions. This is especially the case where

unlike settlement for violations of the TCPA’s autodialer provisions that provides

for a minimum of $500 per violation (47 U.S.C § 227(b)(3), violations of the do-not-

call provisions of the TCPA allow for recovery of nominal damages up to $500 per

violation (47 U.S.C § 227(c)(5)).

The Settlement Agreement provides for $935,000 in recovery for the

approximately 94,877 Settlement Class Members. Agr. §§ I.D. and III(B). After

deducting attorneys’ fees and costs, a service award to Plaintiff, and costs of notice

and claims administration, every Class Member who makes a timely and valid

claim will be entitled to a pro rata distribution of the Settlement Fund. Agr. §§

II.A.28 and III.G.3.

In the Preliminary Approval Motion, Class Counsel estimated a final claims

rate of 5%, with a recovery of approximately $107 per claim.6 Dkt. No. 102-1,

15:12-15. It is well-settled that a proposed settlement may be accepted where the

recovery represents a fraction of the maximum potential recovery. See e.g., Nat’l

Rural Tele. Coop v. DIRECTV, Inc., 221 F.R.D 523, 527 (C.D. Cal. 2004) (“well

6 The deadline to submit a claim online or by mail is not until August 14, 2017.



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settled law that a proposed settlement may be acceptable even though it amounts to

only a fraction of the potential recovery”).

The Settlement Class Members’ anticipated recovery here of $107 is

substantially greater than the results obtained in many other TCPA class action

settlements. For instance, in Jiffy Lube, each class member received a single

voucher (rather than cash) for an oil change valued at $20.00. In re Jiffy Lube

International, Inc. Text Spam Litigation, Case No. 11-MD-02261-JM-JMA, Dkt.

No. 90-1, p. 7-8 (S.D. Cal. Dec. 30, 2012) [Exhibit 5]. In Adams v. AllianceOne

Receivables Management, Inc., et al., No. 08-cv-00248, Dkt. No. 137 (S.D. Cal.

2008), the actual recovery was approximately $40.00 [Exhibit 4]. In Wojcik v.

Buffalo Bills Inc., No. 8:12-cv-02414-SDM-TBM, Dkt. No. 79 (M.D. Florida Aug.

25, 2014), the court finally approved a settlement in a TCPA action with a gift card

value of $57.50 to $75.00 for each class member) [Exhibit 6]. In Sherman v.

Kaiser Foundation Health Plan, Inc., 3:13-cv-00981-JAH-JMA (S.D. Cal. May

12, 2015), this Court finally approved a settlement with a per claimant recovery of

$39.68 [Exhibit 7; Ibey Decl., ¶ 39.] More recently in Fox v. Asset Acceptance,

LLC, 2:14-cv-00734-GW-FFM (C.D.Cal. July 1, 2016), Judge Wu finally

approved a TCPA settlement with an estimated cash award of $28.00 for class

members who did not owe a debt and an estimated award of $62.00 to class

members who owed a debt to the defendant in that case) [Exhibit 8].

b. The risks of litigation support the requested fees

“The risk that further litigation might result in Plaintiffs not recovering at all,

particularly a case involving complicated legal issues, is a significant factor in the

award of fees.” Omnivision, 559 F. Supp. 2d at 1046-47; see also Vizcaino, 290 F.3d

at 1048 (risk of dismissal or loss on class certification is relevant to evaluation of a

requested fee).

Courts have observed that “the law interpreting the TCPA . . . has been

under flux…” Barani v. Wells Fargo Bank, N.A., 2014 WL 1389329, at *5 (S.D.



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Cal. Apr. 9, 2014); accord Wilkins v. HSBC Bank Nev., N.A. 2015 U.S. Dist.

LEXIS 23869 (N.D. Ill. Feb. 27, 2015); see also Baird v. Sabre Inc., 2014 WL

320250 (C.D. Cal. Jan 28, 2014). The uncertainty of recovery under the TCPA is

further reflected by the fact that a federal court has approved a settlement and

awarded $475,000 in attorneys’ fees in a TCPA action where class members

received no monetary relief, only an injunction. See Grant v. Capital Mgmt. Servs.,

L.P. 2014 U.S. Dist. LEXIS 29836 (S.D.Cal. Mar. 5, 2014).

Dish One Satellite has strongly contested the claims asserted by Plaintiff in

this Action. See Dkt. Nos. 15, 18, and 57; see also Agr. § I (B). While both sides

believe in the merits of their respective cases, there are risks to both sides in

continuing the Action. See Agr. § I (B). Indeed, some district courts have refused

to certify TCPA class actions with regard to alleged of violations of the do-not-call

provisions. See e.g., Donaca v. Dish Network, LLC, 303 F.R.D. 390, 402 (D. Colo.

2014); Warnick v. Dish Network LLC, 301 F.R.D. 551, 561 (D. Colo. 2014). On

the other hand, some district courts have certified TCPA class actions involving

alleged violations of the do-not-call provisions. See e.g., Krakauer v. Dish Network

L.L.C., 311 F.R.D. 384 (M.D. N.C. Sept 9, 2015) (granting certification of two

proposed classes including persons on the National Do Not Call Registry and

persons appearing on the internal do-not-call list for Dish Network).

There are also risks apart from a class certification decision. Following the

Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Since

the decision in Spokeo, many TCPA defendants have argued that plaintiffs lack

Article III standing to sue under the TCPA for the receipt of unwanted calls or text

messages without some economic or substantial harm. See e.g., Romero v. Dep't

Stores Nat'l Bank, No. 15-CV-193-CAB-MDD, 2016 U.S. Dist. LEXIS 110889

(S.D. Cal. Aug. 5, 2016). However, most courts have found Article III standing in

TCPA cases for receipt of unwanted calls or text messages to one’s telephone,

including the Ninth Circuit Court of Appeals. See Van Patten v. Vertical Fitness



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Grp., LLC, No. 14-55980, 2017 U.S. App. LEXIS 1591, at *12 (9th Cir. Jan. 30,

2017). If the lawsuit were to be dismissed for lack of constitutional standing

(Article III), Plaintiff would have suffered a great loss of time and expense and

would have to re-file the action in state court and start from scratch, in light of the

stipulated protective order’s restriction on use of discovery.

Earlier in the case, on April 5, 2016, Plaintiff filed a Rule 37 motion seeking

to resolve a discovery dispute concerning information and documentation sought

from Defendant (Dkt. No. 52-1). That motion was denied without prejudice (Dkt.

No. 53) and a telephonic conference was subsequently held (Dkt. No. 57).

Following that conference, Defendant provided Plaintiff with additional discovery

and promised to provide other discovery, including its evidence of alleged consent

by the putative class members to receive the marketing calls and evidence of any

established business relationship between Defendant and the putative class

members. Due to the difficulty of obtaining the information maintained by a third-

party technology provider, Defendant has produced limited evidence of consent or

established business relationship for the putative class members. If the litigation

were to continue, and Defendant was afforded sufficient time, Defendant maintains

that it would be able to produce such evidence for a substantial portion of putative

class members, which may call into question the predominance of common issues

in this particular case.

In considering the Settlement, the Parties carefully balanced the risks of

continuing to engage in protracted and contentious litigation against the benefits to

the Settlement Class, including the significant Settlement Fund and the deterrent

effects it would have. See Dkt. No. 102-1, 1:16-21; 12:15-15:7.

This Settlement is similar to the very recently preliminarily approved TCPA

settlement in Robinson v. Paramount Equity Mortg., LLC, No. 2:14-cv-02359-

TLN-CKD, 2017 U.S. Dist. LEXIS 3693 (E.D. Cal. Jan. 9, 2017) (providing

settlement fund not to exceed $660,000 with the class defined as “All persons



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whom Defendant called for marketing purposes on a cellular telephone without

prior express written consent from October 16, 2013 to May 15, 2015, and all

persons whom Defendant called on a telephone number which was registered on

the National Do Not Call Registry without prior express written consent from

October 16, 2013 to May 15, 2015.”). See also United States v. DIRECTV, Inc.,

2005 U.S. Dist. LEXIS 46942, at *29 (C.D. Cal. Dec. 14, 2005) ($5,335,000

settlement reached with FTC for alleged Do-Not-Call Registry violations by

DirecTV).

Without a settlement, Defendant would have likely challenged the propriety

of class certification and there would likely be an appeal of such decision to the

Ninth Circuit Court of Appeals. However, Defendant must realize that the

potential amount of damages could be substantially higher should the action

continue through trial, where claims under the TCPA are worth up to $500 for a

negligent violation, 47 U.S.C. § 227(c)(5), which could be trebled for knowing or

willful violation, id. See Charvat v. NMP, LLC, No. 2:09-cv-209, 2012 U.S. Dist.

LEXIS 139505, *10 (S.D. Ohio Sep. 27, 2012) (noting that the TCPA “sets no

floor for statutory damages” and awarding damages of $50 per call). That risk is

high in this case which involves persons called by Dish One (which is not a large

business) who allegedly did not want to receive marketing calls. FAC, Dkt. No. 78,

¶¶ 12, 27, 32 and 36.

There is also the possibility that were the action certified as a class action

that Plaintiff may not prevail on the merits. See Shames v. Hertz Corp., 2012 U.S.

Dist. LEXIS 158577, *18 (S.D. Cal. Nov. 5, 2012) (“this case presented Plaintiffs

myriad challenges, uncertain prospects at trial, and the possibility that recovery for

the class would not come immediately, if ever.”). As explained by counsel for

Plaintiff at the preliminary approval hearing, there is a dispute as to whether Dish

One had obtained adequate written consent to call Ms. Couser for marketing

purposes given that the customer form was not signed by Ms. Couser. [Exhibit 9,



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6:25-7:4.] At the same hearing, counsel for Dish One noted their positon that there

was an established business relationship defense because Ms. Couser allegedly

expressed interest in Defendant’s services. [Exhibit 9, 12:18-21.]

Consequently, the risks of continued litigation depict the high degree of

results obtained for the Class and also further support the reasonableness of the

requested fees. c. The skill required and quality of work performed

support the requested fees The “prosecution and management of a complex [] class action requires

unique legal skills and abilities” that are to be considered when evaluating fees.

Omnivision, 559 F. Supp. 2d at 1047. Class Counsel are experienced class action

litigators who have been appointed “class counsel” in TCPA and related consumer

class actions. Class Counsel have successfully prosecuted numerous TCPA and

other complex consumer class actions, and have secured noteworthy recoveries for

those classes. See Swigart Decl., ¶¶ 11-14; Kazerounian Decl. ¶¶ 15-44; Friedman

Decl., ¶¶ 16-19; Ibey Decl., ¶ 25.

Class Counsel’s proven track record demonstrates not only the quality of

work performed, but also the skill required to successfully prosecute large complex

class actions. Notably, Mr. Kazerounian and Mr. Swigart have lectured on the TCPA

on several occasions. See Kazerounian Decl., ¶¶ 24(r), 25, 32, and 34; Swigart Decl.,

¶ 17. Courts have recognized the skill and experience of Plaintiff’s counsel in the

context of TCPA class action litigation in particular. Judge Kronstadt noted on

February 14, 2017 that “Class Counsel [which included attorneys such as Abbas

Kazerounian and Joshua B. Swigart] has substantial experience in class action

litigation related to consumer protection statutes, including the TCPA.” Chan v.

Sutter Health Sacramento Sierra Region, No. LA CV15-02004 JAK (AGRx), 2017

U.S. Dist. LEXIS 32236, at *11 (C.D. Cal. Feb. 14, 2017).7 Also, on December 7 In 2015, Judge Curiel opined, “All of the attorneys for the plaintiffs are very seasoned, between



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19, 2016, Judge Houston stated, “Class Counsel [which included Abbas

Kazerounian, Joshua B. Swigart and Todd M. Friedman] have the requisite

experience to litigate TCPA actions and to adequately represent the class.” Exhibit

10, 12:5-7.

Here, Class Counsel performed factual investigation prior to bringing the

action, conducted extensive written discovery (Plaintiff served three sets of written

discovery), took the deposition of the Rule 30(b)(6) representative of non-party

PossibleNow, Inc. in Alpharetta, Georgia (a company used by Dish One for

telemarketing compliance purposes), obtained documentation from third parties via

subpoena (i.e., PossibleNow, Inc. and Voxtelesys), and retained experts for purposes

of data analysis (i.e., Information Research and Hansen Legal Technologies, Inc.)

who provided their detailed results after a time-consuming process requiring several

days of work and several discussions with Plaintiff’s counsel. Ibey Decl., ¶¶ 9-14.

Nearly all the discovery took place prior to the mediation.

Class Counsels’ skill and expertise reflected in the relatively prompt and

significant Settlement, supports the requested fees.

d. Class Counsels’ undertaking of this Action on a contingency-fee basis supports the requested fees

The Ninth Circuit has long recognized that the public interest is served by

rewarding attorneys who undertake representation on a contingent basis by

compensating them for the risk that they might never be paid for their work. In re

Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (“Contingent

fees that may far exceed the market value of the services if rendered on a non-

contingent basis are accepted in the legal profession as a legitimate way of assuring

competent representation for Plaintiffs who could not afford to pay on an hourly

basis regardless of whether they win or lose”); Vizcaino, 290 F.3d at 1051 (courts

the Kazerouni Law Group and Hyde & Swigart, in handling not only class actions but specifically class actions under the TCPA.” Exhibit 11, 10:6-10.



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reward successful class counsel in contingency cases “for taking risk of nonpayment

by paying them a premium over their normal hourly rates”).

Class Counsel prosecuted this matter on a purely contingent basis while

agreeing to advance all necessary expenses knowing that Class Counsel would only

receive a fee if there were a recovery. See Kazerounian Decl., ¶ 13; Swigart Decl., ¶

10; Friedman Decl., ¶ 15. In pursuit of this litigation, Class Counsel have spent

considerable outlays of time and money by, among other things, (1) investigating the

action; (2) conducting discovery; (3) negotiating the Settlement over a period of

months, including an all-day private mediation before Eric Green; and (6)

overseeing administration of the Settlement. Class Counsel expended these

resources despite the risk that Class Counsel may never be compensated especially

in light of the fluctuating interpretations of the TCPA and the difficulty in obtaining

and maintaining class certification. See Baird v. Sabre Inc., 2014 WL 320250 (C.D.

Cal Jan 28, 2014).

Class Counsel have incurred $29,375.43 in costs and over 553 hours litigating

this action. Kazerounian Decl., ¶ 12; Swigart Decl., ¶ 10; Friedman Decl., ¶¶ 3-4, 9,

15. Thus, Plaintiff’s counsels’ “substantial outlay, when there is a risk that none of

it will be recovered, further supports the award of the requested fees” in this matter.

Omnivision, 559 F. Supp. 2d at 1047.

As articulated above, the percentage-of-the-fund method is the preferred and

most widely used method for determining attorneys’ fees in a common fund case.

The requested fees are fully supported by the factors enunciated by Vizcaino and is

commensurate with the excellent results obtained for the Class and is comparable or

in excess of awards in other TCPA cases, namely In Re Jiffy Lube.

While the requested fees are fully supported by the percentage-of-the-fund

method, it should again be noted that the application of the percentage-of-the-fund

method is optional and may be applied at the Court’s discretion. In addition, the

Court may also apply the lodestar method as another optional means of cross-



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checking the requested fees.

E. Lodestar

Plaintiff’s counsels’ lodestar is $264,104.5, and this lodestar includes a

reasonable number of additional anticipated hours through final approval and

overseeing any contingent cy pres distribution of unclaimed funds (Agr. § III.J).

Kazerounian Decl., ¶¶ 6-7; Swigart Decl., ¶¶ 5-6; Friedman Decl., ¶¶ 3-4, 9; Ibey

Decl., ¶¶ 5-6.

The relevant lodestar factors support the requested award of attorneys’ fees

of $233,750. The first step in the lodestar-multiplier approach is to multiply the

number of hours counsel reasonably expended by a reasonable hourly rate. Hanlon,

150 F.3d at 1029. Once this raw lodestar figure is determined, the Court may then

adjust that figure based upon its consideration of many of the same “enhancement”

factors considered in a percentage-of-the-fund analysis, such as: (1) the results

obtained; (2) whether fee is fixed or contingent; (3) the complexity of the issues

involved; (4) the preclusion of the other employment due to acceptance of the case;

and, (5) the experience, reputation, and ability of the attorneys. See Kerr v, Screen

Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).

1. Results Obtained

The “results obtained” is an important inquiry. Here, Class Counsel were

able to negotiate a nationwide settlement to recover damages for approximately

94,877 Settlement Class Members. Agr. § III(B). Although the settlement does not

expressly provide for injunctive relief, Dish One closed its call center prior to the

Settlement. See Dkt. No. 105-8, ¶ 9. Further, Class Members will likely benefit

from the deterrent effect of this TCPA Settlement. See e.g., Lo v. Oxnard European

Motors, LLC, 2012 WL 1932283, *5 (S.D. Cal., May 29, 2012); see also Texas v.

American Blast Fax, Inc., 121 F. Supp. 2d 1085, 1090 (W.D. Tex. 2000) (noting

the TCPA’s statutory damages provision designed to address and deter the overall

public harm caused by such conduct).



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In light of the risks in this case and the fact that Dish One is a small door-

to-door marketing company in Provo, Utah (Exhibit 9, 12:4-7), Class Counsel

have obtained significant relief for the Settlement Class Members with the

Settlement Fund of $935,000 (Agr. § I.D), which provides for an anticipated

individual recovery of $107 (based upon the estimated participation rate of 5%).

2. Contingency Fee

The risk inherent in contingency representation is a critical factor. The

Ninth Circuit stresses that “[i]t is an abuse of discretion to fail to apply a risk

multiplier when...there is evidence that the case was risky.” Fischel v. Equit. Life

Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002); see also Glass v. UBS Fin.

Servs., Inc., 2007 WL 221862, *16 (N.D. Cal. 2007). Here, Class Counsel took

this matter on a contingency fee basis and incurred tens of thousands of dollars in

litigation costs. Kazerounian Decl., ¶ 13; Swigart Decl., ¶ 10; Friedman Decl., ¶

15. Notably, one court has assumed “the average TCPA case carries a 43% chance

of success,” Amadeck v. Capital One Fin. Corp. (In re Capital One Tel. Consumer

Prot. Act Litig.), 80 F. Supp. 3d 781, 806 (N.D. Ill. 2015). This factor supports

the fee request, as Class Counsel have incurred hundreds of hours of work

(including estimated additional incurred through the final approval hearing and

distribution of the settlement fund if final approval is granted) without the

guarantee they would obtain a recovery.

3. Complexity of the Issues

TCPA class action litigation is often complex, and several courts have

declined to certify class actions for alleged violations of the do-not-call provisions

of the TCPA. See Warnick v. Dish Network LLC, 301 F.R.D. 551 (D. Colo. 2014)

(denying class certification in case involving alleged violations of do-not-call

regulations). Although this case does not concern the highly technical issue of

whether an auto-dialer (47 U.S.C. § 227(a)(1)) was used, it does present

challenges, both legal and factual. First, Dish One contends that Plaintiff would



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not be able to prove which calls were for marketing purposes and which were for

non-marketing purposes such as informational calls or customer service calls.

[Exhibit 9, 6:1-19.] Second, determining whose was in the settlement class and

the class size required time-consuming expert analysis, which may have been

contested by Defendant if there were no settlement. See Ibey Decl., ¶¶ 12-14; Dkt.

Nos. 102-13; Exhibit 1 to Kazerounian Decl. (invoices from experts). This factor

therefore favors the requested fee award.

4. Class Counsels’ Experience, Reputation and Ability As mentioned above and explained in Plaintiff’s counsels’ declarations,

Plaintiff’s counsel are very experienced in consumer actions, including TCPA

class actions. See Kazerounian Decl., ¶¶ 15-44; Swigart Decl., ¶¶ 11-14; Friedman

Decl., ¶¶ 1, 11-13, 16-19; Ibey Decl., ¶¶ 17-25. “Class Counsel [Abbas

Kazerounian and Joshua Swigart] has substantial experience in class action

litigation related to consumer protection statutes, including the TCPA.” Chan v.

Sutter Health Sacramento Sierra Region, No. LA CV15-02004 JAK (AGRx),

2017 U.S. Dist. LEXIS 32236, at *11 (C.D. Cal. Feb. 14, 2017). This factor

supports approval of the attorneys’ fee request.

5. Arm’s-length Negotiations

While attorneys’ fee provisions included in class action settlements are

subject to the determination of whether the provision is fundamentally fair,

adequate and reasonable, the Ninth Circuit has opined that “the court's intrusion

upon what is otherwise a private consensual agreement negotiated between the

parties to a lawsuit must be limited to the extent necessary to reach a reasoned

judgment that the agreement is not the product of fraud or overreaching by, or

collusion between, the negotiating parties, and that the settlement, taken as a

whole, is fair, reasonable and adequate to all concerned.” Hanlon, 150 F.3d at

1027, citing Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San

Francisco, 688 F.2d 615, 625 (9th Cir. 1982); (emphasis added); see also, Lundell



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v. Dell, Inc., CIVA C05-3970 JWRS, 2006 WL 3507938 (N.D. Cal. Dec. 5, 2006).

In Hanlon, the Ninth Circuit went on to state that where settlement terms,

including attorneys’ fees, are reached through formal mediation, the Court may

rely upon the mediation proceedings “as independent confirmation that the fee was

not the result of collusion or a sacrifice of the interests of the class.” Hanlon, 150

F.3d at 1029. See also Milliron v. T-Mobile USA, Inc., 2009 WL 3345762, at *5

(D.N.J. Sept. 14, 2009) (“the participation of an independent mediator in

settlement negotiation virtually insures that the negotiations were conducted at

arm’s length and without collusion between the parties”); Sandoval v. Tharaldson

Emp. Mgmt., Inc., 2010 WL 2486346, at *6 (C.D. Cal. June 15, 2010) (“the

assistance of an experienced mediator in the settlement process confirms that the

settlement is non-collusive”). See also 2 McLaughlin on Class Actions, § 6:7 (8th

ed.) (“A settlement reached after a supervised mediation receives a presumption

of reasonableness and the absence of collusion”).

According to the Preliminary Approval Order, “[t]he Court has conducted a

preliminary evaluation of the Settlement as set forth in the Agreement. Based on

this preliminary evaluation, the Court finds that: (a) the Agreement is fair,

reasonable and adequate, and within the range of possible approval; (b) the

Agreement has been negotiated in good faith at arm's length between experienced

attorneys familiar with the legal and factual issues of this case…” Couser v. Dish

One Satellite, LLC, No. 5:15-cv-02218-CBM-DTB, 2017 U.S. Dist. LEXIS

74747, at *2-3 (C.D. Cal. May 16, 2017).

Class Counsel participated in settlement negotiations including an all-day

mediation in Boston, MA with Eric Green,8 and several calls and emails subsequent

8 See Fleisher v. Phx. Life Ins. Co., 2015 U.S. Dist. LEXIS 121574, at *45 (S.D.N.Y. Sep. 9, 2015) (calling Professor Green “an experienced and highly respected mediator”). Mr. Green is a “nationally-recognized” mediator (In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 515 (E.D. Mich. 2003)) who has helped negotiate settlements in complex litigation (see Me. State Ret. Sys. v. Countrywide Fin. Corp., No. 2:10-CV-00302 MRP (MANx), 2013 U.S. Dist. LEXIS 179190, at *51 (C.D. Cal. Dec. 5, 2013)). Notably, “[o]n August 20, 2014, Professor Green was named



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to that mediation, which ultimately secured a nationwide settlement for the benefit

of the Class. Ibey Decl., ¶ 7. Class Counsel continue to believe and contend that

this Settlement was the product of good faith negotiations. Ibey Decl., ¶ 8.

Consequently, as of approximately July 14, 2017, Plaintiff’s counsels’

lodestar is $245,107.50, representing a multiplier of less than 1 (0.88506), and is

reasonable in light of the work performed and expected through completion of the

case. The Ninth Circuit stresses that “[i]t is an abuse of discretion to fail to apply a

risk multiplier when... there is evidence that the case was risky.” Fischel v. Equit.

Life Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002); see also Glass v. UBS

Fin. Servs., Inc., 2007 WL 221862, at *16 (N.D. Cal. 2007). See In re Linerboard

Antitrust Litig., 2004 U.S. Dist. LEXIS 10532, 2004 WL 1221350, at *16 (noting

that “during 2001-2003, the average multiplier approved in common fund class

actions was 4.35”) (citation omitted).9

As the requested award of attorneys’ fees and costs is reasonable here, the

Court should find that proposed class counsel are adequate under Fed. R. Civ. P.

23(a)(4) and that the proposed fee request is reasonable.

III. CLASS COUNSELS’ REQUEST FOR LITIGATION COSTS OF UP TO $30,000 IS REASONABLE

“Reasonable costs and expenses incurred by an attorney who creates or

preserves a common fund are reimbursed proportionately by those class members

who benefit from the settlement.” In re Media Vision Tech. Sec. Litig., 913 F. Supp.

1362, 1366 (N.D. Cal. 1996) (citing Mills v. Electric Auto-Lite Co., 396 U.S. 375,

as the independent Monitor of the Consumer Relief portion of the Settlement Agreement between the United States Department of Justice, six states and Bank of America, resolving, among other issues, claims related to the Bank’s practices concerning residential mortgage-backed securities. Bank of America is obligated under the Settlement Agreement to provide $7 billion in Consumer Relief over the next four years.” Exhibit 12. 9 In TCPA cases in particular, courts within the Ninth Circuit have approved a multiplier of 5.157 in Malta v. Freddie Mac & Wells Fargo Home Mortgage, 10-cv-1290, Dkt. Nos. 56-1 and 91 (S.D. Cal. June 16, 2013); and 4.092 in Sherman v. Kaiser Foundation Health Plan, No. 3:13-cv-00981-JAH-JMA, Dkt. No. 58 (S.D. Cal. May 12, 2015).



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391-392 (1970). The significant litigation expenses Class Counsel incurred in this

case were necessary to secure the resolution of this litigation. See Rutti, 2012 WL

3151077, at *12 (“Expenses such as reimbursement for travel,... lodging,

photocopying, long-distance telephone calls, computer legal research, postage,

courier service, mediation, exhibits, documents scanning, and visual equipment are

typically recoverable.”); In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166,

1177-78 (S.D. Cal. 2007). Some courts in this circuit have awarded litigation costs,

such as expert witness fees, to be distributed from class action settlement

funds. See, e.g., In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362, 1366

(N.D. Cal. 1996). Courts may award costs and expenses that are reasonable under

the circumstances. Rodriguez v. Disner, 688 F.3d 645, 653, 660 (9th Cir. 2012).

Class Counsel believe that the costs incurred in this matter are fair and reasonable.

Kazerounian Decl., ¶ 12; Swigart Decl., ¶ 10; Friedman Decl., ¶ 15.

The requested litigation expenses of $29,375.43 (as of approximately July

17, 2017) are identified in, and supported by, the accompanying attorney

declarations.10 See Kazerounian Decl., ¶ 45 (Exhibit 1 thereto); Swigart Decl., ¶

10; Friedman Decl., ¶ 15 (Exhibit 1 thereto).

LAW FIRM LITIGATION COSTS Kazerouni Law Group, APC $15,030.07 Hyde & Swigart $13,696.98 Law Offices of Todd M. Friedman, P.C.

$647.75

TOTAL: $29,375.43

Class Counsel respectfully request that the Court approve all litigation

expenses incurred in this action up to $30,000 (not limited to costs that are taxable

under Local Rule 54-2) because they were reasonably incurred, the costs requested

10 At the preliminary approval hearing, the Court stated, “And then any request for costs should be submitted to the clerk of court pursuant to Local Rule 54-2.” Exhibit 9, 24:19-21. Submitted currently therefore is completed form CV-59 pursuant to Local Rule 54-2.



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are in the context of settlement rather than a judgment (see Fed. R. Civ. 54), and

the Settlement Agreement provides that Class Counsel may request up to $30,000

in litigation expenses (Agr. § III.J). See Klee v. Nissan N. Am., Inc., No. CV 12-

08238 AWT (PJWx), 2015 U.S. Dist. LEXIS 88270, at *42 (C.D. Cal. July 7,

2015) (“Because the settlement agreement anticipated the recovery of these

litigation costs, the court approves the request for reimbursement.”).

Class counsel are entitled to reimbursement of reasonable “nontaxable costs

that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h)

(emphasis added). See also Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294,

299 (N.D. Cal. 1995) (approving reasonable costs in class action settlement).

“[C]ourts throughout the Ninth Circuit regularly award litigation costs and

expenses - including reasonable travel expenses…” Sanchez v. Frito-Lay, Inc.,

2015 U.S. Dist. LEXIS 102771, at *49 (E.D. Cal. Aug. 5, 2015); Ontiveros

Ontiveros v. Zamora, 303 F.R.D. 356 375 (E.D.Cal. Oct. 8, 2014) (citations

omitted). The current costs of $29,375.43 are also reasonably proportionate to the

amount of attorneys’ fees when compared to similarly sized settlements. See

e.g., Tarlecki v. bebe Stores, Inc., 2009 U.S. Dist. LEXIS 102531, 2009 WL

3720872, at *6 (N.D. Cal. Nov. 3, 2009) (awarding $30,000 in costs in conjunction

with $200,000 in attorneys’ fees).

IV. A SERVICE AWARD OF $5,000 IS REASONABLE As the Ninth Circuit has recognized, “named 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);

Rodriguez v. West Publishing Corp., 563 F.3d 948, 958 (9th Cir. 2009) (service

awards “are fairly typical in class action cases”). Such awards are intended to

compensate class representatives for work done on behalf of the class [and] make up

for financial or reputational risk undertaken in bringing the action.” Id.11 Modest

11 See also Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380, 1393-94 (Cal. Ct. App.



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service (or incentive) awards, such as those requested here, promote the public

policy of encouraging individuals to undertake the responsibility of representative

lawsuits. A court should order an incentive award when it finds that it is not the

product of collusion and does not come at the expense of the remaining class

members. Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS

78314, at *17-18 (S.D. Cal. 2008).

Ms. Couser received 17 calls from Dish One (Ibey Decl. ¶ 15), which, if

determined to be a violation, would entitle Ms. Couser of up to $8,000 12 in

statutory damages for a negligent violation of the TCPA. Couser feels strongly

about protecting her rights under the TCPA, and has brought other TCPA actions

in the past.13 [Couser Decl., ¶¶ 9-10.] In addition to lending her name to this matter,

and thus subjecting herself to public attention, Ms. Couser has actively engaged in

this action. Ms. Couser has personally spent approximately 25 hours engaged in

this action, which includes time spent in pre-litigation investigation, reviewing the

complaint, assisting with written discovery, preparing for and appearing at her

deposition, reviewing and signing settlement documents, and communicating with

Plaintiff’s counsel throughout the litigation with many emails and telephone calls.

[Couser Decl., ¶ 5.]

Ms. Couser requests a modest incentive award of $5,000 as sole

compensation for litigating this action and reaching a nationwide settlement to

recover damages for individuals who received calls allegedly in violation of the

TCPA. The requested incentive award of $5,000 for Ms. Couser is justified.14 See 2010) (explaining purpose of a service award). 12 The TCPA requires two or more calls for a violation of the do-not-call rules, which means the first call alone would not be actionable. See 47 C.F.R. § 64.1200(c)(5). 13 In 2015, Ms. Couser was finally approved as a class representative in a different TCPA settlement with Comenity Bank. Couser Decl., ¶ 9. 14 Such compensation provides the economic motivation to induce potential plaintiffs to lend their names and support to class actions generally. West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 76558 at *26 (E.D.Cal. Oct. 19, 2006). The same incentive fees further ensure that meritorious actions are prosecuted to completion. Linney v. Cellular Alaska Part., 1997 U.S. Dist. LEXIS 24300, at *23 (N.D. Cal. 1997).



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Klee, 2015 U.S. Dist. LEXIS 88270, at *43 (approving $5,000 incentive award).

Courts have approved similar or larger incentive awards in TCPA cases. See e.g.,

Vandervort v. Balboa Capital Corp., 88 Fed. R. Serv. 3d 365 (C.D. Cal. 2014)

(awarding an incentive payment of $10,000 total for two name plaintiffs in a

TCPA case; $5,000 each); Abdeljalil v. GE Capital Retail Bank, 3:12-cv-02078-

JAH-MDD (S.D.Cal.) (approving service award of $5,000 to each of the four

named plaintiffs in a TCPA action) [Exhibit 13]; Morey v. Loius Vuitton N. Am.

Inc., 2014 U.S. Dist. LEXIS 3331 at *31 (S.D.Cal.) (approving $5,000 service

award); Williams v. Costco Wholesale Corp., No. 02-cv-2003-IEG-AJB, 2010 U.S.

Dist. LEXIS 67731, 2012 WL 2721452, at *7 (S.D. Cal. Jul. 7, 2010). Therefore,

this amount awarded as a service award is in line with similar awards approved by

other federal courts, and is also supported by the recent Ninth Circuit authority in

Radcliffe v. Experian Info. Solutions, Inc., 2013 U.S. App. LEXIS 9126 (9th Cir.

Mar. 4, 2013).

In sum, an incentive award of $5,000 should be approved to Ms. Couser

from the Settlement Fund. Agr. § III.K.

V. CONCLUSION

For all the foregoing reasons, Plaintiff respectfully requests that the Court

enter an order (i) awarding Class Counsel $233,750 in reasonable attorneys’ fees;

(ii) awarding actual litigation expenses (up to $30,000 – current expenses are

$29,375.43); and (iii) approving a service award of $5,000 to Ms. Couser.15 Dated: July 19, 2017 KAZEROUNI LAW GROUP, APC

By: /s Abbas Kazerounian___ ABBAS KAZEROUNIAN, ESQ.

ATTORNEYS FOR PLAINTIFF 15 A proposed order will be submitted in connection with the motion for final approval of class action settlement (due filed by September 18, 2017, Dkt. No. 108), which will include a proposal for an award of the requested attorneys’ fees, litigation costs and service award.



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HYDE & SWIGART Joshua B. Swigart, Esq. (SBN: 225557) [email protected] 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff LAW OFFICES OF TODD M. FRIEDMAN, P.C. Todd M. Friedman, Esq. (SBN: 216752) [email protected] 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: 877-206-4741 Facsimile: 866-633-0228 Attorneys for Plaintiff


fee brief draft final - carrie couser v. dish one satellite, llc€¦ · · 2017-07-26memorandum...

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