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1 2 3 4

BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232

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8

UNITED EMPLOYEES LAW GROUP Walter Haines (State Bar #71705) 65 Pine Ave, #312 Long Beach, CA 90802 Telephone: (562) 256-1047 Facsimile: (562) 256-1006

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Attorneys for Plaintiff

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10 11

SUPERIOR COURT OF THE STATE OF CALIFORNIA 12

IN AND FOR THE COUNTY OF ORANGE 13 14 15

NIMET BEHAR, on behalf of herself, and on behalf of all persons similarly situated,

Class Action

Plaintiffs,

16 17

vs.

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UNION BANK, N.A.,

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CASE No. 30-2009-00317275

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY’S FEES AND LITIGATION EXPENSES

Defendant.

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Hearing Date: Hearing Time:

December 1, 2010 8:30 a.m.

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Judge: Hon. Nancy Wieben Stock Dept.: CX105

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Action Filed: November 4, 2009

23 24 25 26 27 28 1 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


TABLE OF CONTENTS

1 2 I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. 4

THE ATTORNEYS’ FEES REQUESTED ARE FAIR AND REASONABLE AND SHOULD BE APPROVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5

A.

3

The Agreement for the Payment of Fees and Expenses is Appropriate and Should Be Enforced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

6 III. 7

CLASS COUNSEL'S FEE AWARD IS PROPERLY CALCULATED AS A PERCENTAGE OF THE TOTAL VALUE CREATED FOR THE BENEFIT OF THE CLASS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8 A.

In a Common Fund Case, an Award Based Upon The Percentage of the Fund Is Not Prohibited By California Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B.

The Fee Award is Supported By 1) the Results Achieved; 2) the Risk, 3) the Skill Required, 4) the Contingent Nature of the Fee and 5) Awards In Similar Cases . . . 7

9 10 11

1.

The Results Achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2.

Risks of Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3.

The Skill Required and the Quality of Work . . . . . . . . . . . . . . . . . . . . . . 10

4.

The Contingent Nature of the Fee and the Financial Burden . . . . . . . . . . 10

5.

Awards in Similar Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12 13 14 15 16 D.

Lodestar Cross-Check . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17 IV.

CLASS COUNSEL’S COSTS WERE REASONABLY INCURRED . . . . . . . . . . . . . . 14

V.

THE REQUESTED SERVICE AWARD IS REASONABLE . . . . . . . . . . . . . . . . . . . . 14

VI.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

18 19 20 21 22 23 24 25 26 27 28

i MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


TABLE OF AUTHORITIES

1 2

Cases:

3

Page Amaral v. Cintas Corporation No. 2, 163 Cal. App. 4th 1157 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4 5 6

Arenson v. Board of Trade, 372 F.Supp. 1349 (N.D. Ill. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Baldwin v. Trailer Inns, Inc. 266 F.3d 1104 (9th Cir.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

7 8 9

Barcia v. Contain-A-Way, Inc., 2009 U.S. Dist. LEXIS 17118 (S.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D.Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

10 11 12

Blum v. Stenson, 465 U.S. 886 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

13 14 15

Brotherton v. Cleveland, 141 F.Supp.2d 907 (S.D.Ohio 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Chavez v. Netflix, Inc., 162 Cal.App.4th 43 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

16 17 18

Consumer Privacy Cases, 175 Cal. App. 4th 545 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

19 20 21

Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

22 23 24

Dunk v. Ford Motor Co., 48 Cal.App.4th 1794 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

25 26 27 28

Evans v. Jeff D., 475 U.S. 717 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ii MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


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Gentry v. Superior Court, 42 Cal. 4th 443 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2 3 4

Glass v. UBS Fin. Servs. 2007 U.S. Dist. LEXIS 8476 (N.D.Cal. Jan. 27 2007) . . . . . . . . . . . . . . . . . . . . . . . . 8, 15 Green v. Obledo, 29 Cal. 3d 126 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5 6 7

Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

8 9 10

In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13627 (C.D. Cal. June 10, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re King Resources Co. Securities Litig. 420 F.Supp. 610 (D. Colo. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

11 12 13

In re Omnivision Technologies, Inc., 2007 WL 4293467 (N.D.Cal., Dec 06, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 In re Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

14 15 16

In re Warner Communications Sec. Lit, 618 F.Supp. 735 (S.D. N.Y. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12 Kennedy v. Commonwealth Edison Co., 410 F.3d 365 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

17 18 19

Lealao v. Beneficial California, Inc. 82 Cal.App.4th 19 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 7 Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

20 21 22

McKittrick v. Gardner, 378 F.2d 872 (4th Cir.1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Mevorah v. Wells Fargo Home Mortg. (In re Wells Fargo Home Mortg.), 571 F.3d 953 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

23 24 25

Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d 493 (D.N.J. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

26 27 28

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 iii MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


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Pellegrino v. Robert Half Intern., Inc., 182 Cal.App.4th 278 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2 3 4

Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10 Rabin v. Concord Assets Group Inc., [1991-1992 Transfer Binder] Fed. Sec. L. Rep. (CCH) Par. 96,471 (S.D.N.Y. 1991) . . . 14

5 6 7

Rievman v. Burlington Northern Railroad Co., 118 F.R.D. 29 (S.D.N.Y. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Serrano v. Priest, 20 Cal.3d 25 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8 9 10

Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 Steiner v. BOC Financial Corp., 1980 U.S. Dist. LEXIS 14561 (S.D.N.Y. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

11 12 13

Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Vasquez v. Superior Court, 4 Cal.3d 800 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

14 15 16

Vincent v. Hughes Air West, Inc. 557 F.2d 759 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 13

17 18 19

Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Wershba v. Apple Computer, 91 Cal. App. 4th 224 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

20 21 22 23 24 25 26 27 28

iv MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

I.

INTRODUCTION

2

After almost a year litigation, Class Counsel successfully negotiated a California class action

3

settlement which provides for a common fund settlement to paid to the Settlement Class in the amount

4

of Nine Hundred Seventy-Five Thousand Dollars ($975,000) (the “Settlement Sum”). As part of the

5

settlement, the parties agreed to an award of attorneys’ fees and costs equal to 25% of the total

6

settlement value. Class Counsel respectfully applies to the Court for approval of the agreed attorneys’

7

fee award equal to 25% of the Settlement Sum.

8

Preliminary approval of the Class Settlement was granted on July 23, 2010. Notice of the

9

Settlement was mailed to the Class Members.1 Not one Class Member has objected to the requested fee

10

award. (Declaration of Blumenthal at ¶16.) The requested attorneys’ fee award is at the low end of the

11

benchmark for fees of 25% to 40% of a common fund and is fair compensation for undertaking such

12

complex, risky and time-consuming litigation on a contingent basis. See Six Mexican Workers v.

13

Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (establishing “25 percent of the fund as

14

the ‘benchmark’ award that should be given in common fund cases.”)

15

The requested award of 25% of the common fund is well within the range of reasonableness and

16

the results achieved for the Class Members are excellent, Plaintiff respectfully request that the Court

17

award the requested attorneys’ fees in the amount of 25% of the Settlement Sum, which equals

18

$243,750 for attorneys' fees.2 After extensive and hard fought negotiations, the award sought herein

19

was finally agreed upon by the Parties. Not one Class Member has objected to the fee award and the

20

award is not opposed by Defendant. The award is more than reasonable and appropriate when viewed

21

as a percentage of the common fund (25%), and is further supported by reference to the under the

22

lodestar multiplier approach because the requested award is equal to Class Counsel’s lodestar with a

23 24 1

25 26 27 28

The procedural history of this action, the discovery conducted, the settlement negotiations, and the risks of litigation and of establishing liability and damages at trial are described in Plaintiffs’ Memorandum in Support of Motion for Final Approval of Class Action Settlement filed herewith. 2 The reasonableness of this attorneys’ fee award is also established by reference to Class Counsel’s lodestar, which is $138,837.50. This is Class Counsel’s lodestar as of November 9, 2010. Class Counsel will be incurring additional attorneys’ fees in completing final approval, appearing before this Court and completing all of the remaining work required for the Settlement. 1 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

modest multiplier (1.75), which is warranted and reasonable under settled precedent.3

2

Plaintiff also respectfully seeks approval of reimbursement of litigation expenses in the amount

3

of $17,852.69, which is less than what is provided by the Settlement Agreement. Finally, Plaintiff

4

respectfully requests that this Court order payment of a class representative service award of four

5

thousand dollars ($4,000) to the Plaintiff in accordance with the Settlement Agreement.

6 7

II.

THE ATTORNEYS’ FEES REQUESTED ARE FAIR AND REASONABLE AND SHOULD BE APPROVED

8 In defining a reasonable fee, the Court should mimic the marketplace for cases involving a 9 significant contingent risk such as this one. Our legal system places unique reliance on private litigants 10 to enforce substantive provisions of employment law through class actions. See Gentry v. Superior 11

Court, 42 Cal. 4th 443, 450-6 (2007) (confirming the public importance of private enforcement of

12 overtime laws through class actions). Therefore, attorneys providing these substantial benefits should 13 be paid an award equal to the amount negotiated in private bargaining that takes place in the legal 14 market place. Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 338, rehg. denied, 15 446 U.S. 947 (1980). “When a fee is set by a court rather than by contract, the object is to set it at a 16 level that will approximate what the market would set. . . . The judge, in other words, is trying to mimic 17 the market in legal services.” Gaskill v. Gordon, 160 F.3d 361, 363 (7th Cir. 1998); Lealao v. 18 Beneficial California, Inc. 82 Cal.App.4th 19, 49-50 (2000) (“attempting to award the fee that informed 19 private bargaining, if it were truly possible, might have reached.” A fee award should approximate a 20 “percentage fee [] freely negotiated in comparable litigation.”). 21 At the time this case was brought, the result was far from certain. Defendant’s practice at issue 22 here had been in place for years. Defendant’s numerous defenses to the merits of the case and to class 23 certification created difficulties with proof and complex legal issues for Class Counsel to overcome. 24 25 26 27 28

3

See Pellegrino v. Robert Half Intern., Inc., 182 Cal.App.4th 278 (2010) (in class actions “reasonable multipliers of 2.0 to 4.0 are often applied.”); Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) ("multipliers can range from 2 to 4 or even higher."); In re Sutter Health Uninsured Pricing Cases,171 Cal.App.4th 495, 512 (2009) (affirming multiplier of 2.52 as “fair and reasonable); Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 66 (2008) (affirming multiplier of 2.53 as well within the approved range of 2 to 4). 2 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


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For example, were the Plaintiffs’ and Class Members’ claims barred from recovery by the

2

“administrative exemption”as was held in Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 373-

3

74 (7th Cir. 2005)? Did Class Members perform work that was “directly related to management or

4

general business operations” within the meaning of the “executive exemption” as was held in Baldwin

5

v. Trailer Inns, Inc. 266 F.3d 1104 (9th Cir.2001)? Would Plaintiffs be able to obtain class

6

certification and thereby recover on behalf of Defendant’s employees?4 All of these were very

7

substantial risks any of which could have resulted in the Class receiving nothing if the claims were

8

litigated. (Declaration of Blumenthal ¶10(f)-(g).)

9

The Settlement was possible only because Class Counsel had been able to convince Defendant

10

that Class Counsel could potentially prevail on the legal issues regarding overtime compensation,

11

achieve class certification for all the employees in the position at all banking locations, and overcome

12

difficulties in proof as to monetary relief.

13

In successfully navigating these hurdles so as to convince Defendant to settle, Class Counsel

14

displayed skills consistent with those that might be expected of attorneys of comparable class action

15

experience. Here, Class Counsel was pursuing a difficult and risky claim where previous actions, as

16

noted above, had failed to establish liability for overtime, failed to obtain class certification and/or

17

failed to obtain monetary recovery for these employees.

18

Class Counsel’s skill in presenting this case to overcome the difficulties that prevented recovery

19

in many other overtime wage cases is also compelling given the exceptional and well recognized

20

quality of Defendant’s Counsel from the respected, capable, and well-staffed law firm of Pillsbury

21

Winthrop Shaw Pittman LLP. See In re King Resources Co. Securities Litig. 420 F.Supp. 610, 634 (D.

22

Colo. 1976); Arenson v. Board of Trade, 372 F.Supp. 1349, 1354 (N.D. Ill. 1974). To represent the

23

Class on a contingent fee basis, Class Counsel had to forego compensable hourly work on other cases

24 4

25 26 27 28

Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1431-32 (2006) affirmed an order denying class certification to a class of employees who claimed that they were denied overtime pay holding that the issue of whether an exemption applied would have to be individually determined for each class member, which meant that common issues did not predominate. See also Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000) (application of overtime exemption depended on individual issues that barred certification); Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440 (2007) (upholding the decertification of an overtime class action). 3 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

to devote the necessary time and resources to this contingent case. In so doing, Class Counsel gave up

2

the hourly work that a firm can bank on for the risky contingent fee work in this case which could have

3

paid Class Counsel nothing. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000).

4 5

A.

The Agreement for the Payment of Fees and Expenses is Appropriate and Should Be Enforced

6

The United States Supreme Court has ruled that the parties to a class action properly may

7

negotiate not only the settlement of the action itself, but also the payment of attorneys' fees. See Evans

8

v. Jeff D., 475 U.S. 717, 734-35, 738, n.30 (1980). In Hensley v. Eckerhart, 461 U.S. 424, 437 (1983),

9

the Supreme Court held that negotiated, agreed-upon attorneys' fee provisions are the ideal towards

10

which the parties should strive:

11

A request for attorney's fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee.

12 Id. 13 The United States Supreme Court has reemphasized this policy and further stressed that the trial 14 court “has a responsibility to encourage agreement” on fees. Blum v. Stenson, 465 U.S. 886, 902 n.19 15 (1984). Here, as part of the Settlement, Defendant agreed not to object to a award of 25% of the 16 settlement amount for attorneys’ fees. Such a fee is commensurate with what the market would provide 17 for similar services and the Court therefore can most certainly enforce the agreement. As the United 18 States Supreme Court has instructed: 19 Given the unique reliance of our legal system on private litigants to enforce substantive provisions of law through class and derivative actions, attorneys providing the essential enforcement services must be provided incentives roughly comparable to those negotiated in the private bargaining that takes place in the legal marketplace, as it will otherwise be economic for defendants to increase injurious behavior.

20 21 22

Deposit Guaranty Nat. Bank, supra, 445 U.S. at 338.5

23 Here, informed arms-length bargaining between experienced counsel for the Class and 24 Defendant was clearly adversarial and arms length as the amount was the result of a mediator’s 25 proposal. Such bargaining is obviously the best measure of the market for fees. The requested fee and 26 cost award was bargained for during adversarial bargaining by counsel for each of the parties, after the 27 28

5

Emphasis added and internal citations omitted unless otherwise noted. 4 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

substantive terms of the Settlement had been agreed to. The requested fee and cost award was a

2

product of arms-length negotiations and fairly reflects the marketplace value of the services rendered

3

by Class Counsel in this case. (Declaration of Blumenthal at ¶9). As a result, the fee agreed to by the

4

parties should be approved.

5 III. 6

CLASS COUNSEL'S FEE AWARD IS PROPERLY CALCULATED AS A PERCENTAGE OF THE TOTAL VALUE CREATED FOR THE BENEFIT OF THE CLASS

7 Class Counsel seeks an attorney fee award for their successful prosecution and resolution of this 8 action, calculated as 25% the cash value of the common fund created by the Settlement. In cases such 9 as this one, California and federal courts have long recognized that an appropriate method for 10 determining the award of attorneys’ fees is based on a percentage of the total value of benefits afforded 11 to class members by the settlement. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Paul, 12 Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (1989); Vincent v. Hughes Air West, Inc. 557 13 F.2d 759, 769 (9th Cir. 1977); Serrano v. Priest, 20 Cal.3d 25, 34 (1977). Moreover, 25% is 14

reasonable and at the low end of commonly awarded fees. A review of class action settlements 15

over the past 10 years shows that the courts have historically awarded fees in the range of 20% 16

to 50%, depending upon the circumstances of the case. See In re Warner Communications Sec. 17 Lit, 618 F.Supp. 735, 749-50 (S.D. N.Y. 1985); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 18

1047-49 (9th Cir. 2002) (approving 28% attorneys fee award as reflecting “the standard contingency

19 fee for similar cases”); Six Mexican Workers, supra, 904 F.2d at 1311 (confirming “25 percent of the 20 fund as the ‘benchmark’ award that should be given in common fund cases.”). 21 The awarding of a fee based on a percentage of the common fund recovered is to “spread 22 litigation costs proportionately among all the beneficiaries so that the active beneficiary does not bear 23 the entire burden alone.” Vincent v. Hughes Air West, Inc., supra, 557 F.2d at 769. The Total 24 Settlement Value is $975,000.00. Accordingly, Class Counsel reasonably requests $243,750 in 25 attorneys fees as a percentage (25%) of the common fund created for the benefit of the Class. 26

Notably, this is an all-in common fund settlement without a reversion to the Defendant. 27 28

5 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

A.

In a Common Fund Case, an Award Based Upon The Percentage of the Fund Is Not Prohibited By California Law

2 California courts have been expressly authorized to award attorneys’ fees so as “to ensure that 3 the fee awarded is within the range of fees freely negotiated in the legal marketplace in 4 comparable litigation.” Lealao v. Beneficial Cal., Inc., supra, 82 Cal.App. 4th at 50. As Lealao 5 explained, in a representative action, courts must consider the amount of attorney fees typically 6 negotiated in comparable litigation: 7 Given the unique reliance of our legal system on private litigants to enforce substantive provisions of law through class and derivative actions, attorneys providing the essential enforcement services must be provided incentives roughly comparable to those negotiated in the private bargaining that takes place in the legal marketplace, as it will otherwise be economic for defendants to increase injurious behavior. It has therefore been urged (most persistently by Judge Richard Posner) that in defining a “reasonable fee” in such representative actions the law should “mimic the market.”

8 9 10 11

Id. at 47. 12 In this case, the fees are being paid from the common fund, accordingly, the fee should be 13 awarded to mimic fees freely negotiated in the legal marketplace for comparable common fund cases 14 under Lealao. (Declaration of Blumenthal at ¶10(b).) As Lealao acknowledged, in cases like this one, 15 the percentage-of-the-benefit approach should be considered because it “it better approximates the 16 workings of the marketplace than the lodestar approach.” 82 Cal.App. 4th at 49. 17 It is in large part because it provides a credible measure of the market value of the legal services provided that some federal courts use a percentage-of-the-benefit analysis to “cross-check” the propriety of a lodestar fee award. ( In re General Motors Corp. Pick-Up Truck Fuel Tank, supra, 55 F.3d at p. 820 [“it is sensible for a court to use a second method of fee approval to cross check its conclusion under the first method”]; As we have said, the California Supreme Court has never prohibited adjustment of the lodestar on this basis.

18 19 20 21

Id.6

22 In Consumer Privacy Cases, 175 Cal. App. 4th 545, 557-8 (2009), the Court of Appeal recently 23 24 25 26 27 28

6

Dunk v. Ford Motor Co., 48 Cal.App.4th 1794 (1996), also does not prohibit adjustment of the lodestar multiplier to mimic a percentage fee. In Dunk the percentage-of-the-benefit approach could not be applied because, unlike the $975,000 Settlement in this case, the monetary value of the recovery in Dunk was not an “easily calculable sum of money.” Id. at 1809. See Lealao, 82 Cal.App. 4th at 50. (“Though the settlement did not create a common fund out of which fees are to be paid, the monetary value of the benefit to the class is much less speculative than that of some traditional common funds.”) 6 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

acknowledged that under California law, a percentage of the fund method may be used in a common

2

fund case:

3

Regardless of whether attorney fees are determined using the lodestar method or awarded based on a “percentage-of-the-benefit” analysis under the common fund doctrine, “‘[t]he ultimate goal … is the award of a “reasonable” fee to compensate counsel for their efforts, irrespective of the [*558] method of calculation.’ [Citations.]” (Apple Computer, Inc. v. Superior Court, supra, 126 Cal.App.4th at p. 1270.) [***23] It is not an abuse of discretion to choose one method over another as long as the method chosen is applied consistently using percentage figures that accurately reflect the marketplace.

4 5 6 7

Id., 175 Cal. App. 4th at 557-8. 8 Because this is a common fund case, and the percentage of the fund is the comparable 9 marketplace for fee awards in common fund cases, Lealao and Consumer Privacy support an 10

award based upon the percentage of the common fund.7

Here, as noted above 25% is the

11 benchmark and the low end of comparable awards for common fund cases, which establishes the 12 requested award as reasonable. 13 14 15

B.

The Fee Award is Supported By 1) the Results Achieved; 2) the Risk, 3) the Skill Required, 4) the Contingent Nature of the Fee and 5) Awards In Similar Cases

16

What has now emerged in most fee award decisions is a recognition that fee determinations in

17

both common fund and statutory fee situations are incapable of mathematical precision because of the

18

intangible factors that must be resolved in the court's discretion based on the circumstances of each

19

particular case. See, A. Conte, Attorney Fee Awards, 2nd Ed., § 207, at §§44. In determining an

20

appropriate fee in a common fund case, a court must decide, based on the unique posture of each case,

21

what percentage of the common fund would most reasonably compensate Class Counsel given the

22

nature of the litigation and the performance of counsel. Paul, Johnson, Alston & Hunt, supra, 886 F.2d

23

at 272 (the benchmark percentage fee may be adjusted to account for the circumstances involved in this

24 25 26 27 28

7

As Lealao notes, in the context of a common fund settlement, the California Supreme Court has never prohibited the use of a percentage of the fund to award fees. 82 Cal.App. 4th at 49. In fact, the California Supreme Court has urged trial courts to follow class action federal authority. Green v. Obledo, 29 Cal. 3d 126, 146 (1981); Vasquez v. Superior Court, 4 Cal.3d 800, 821 (1971). 7 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

case.)

2

Courts apply a five-part test in calculating a reasonable percentage fee in common fund cases.

3

(1) the results achieved; (2) the risk of litigation; (3) the skill required and the quality of work; (4) the contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made in similar cases.

4 5 6 7 8

In re Omnivision Technologies, Inc., 2007 WL 4293467 at *9 (N.D.Cal., Dec 06, 2007). Here, each of these five factors strongly support an award of the percentage fee (25%) requested in this case. 1.

The Results Achieved

9

“The overall result and benefit to the class from the litigation is the most critical factor in

10

granting a fee award.” Omnivision, 2007 WL 4293467 at *9; See also In re Heritage Bond Litig., 2005

11

U.S. Dist. LEXIS 13627, at *27-28 (C.D. Cal. June 10, 2005). Class Counsel obtained an excellent

12

result in this case for the Class Members and at fairly early stage of the litigation. The Settlement

13

provides monetary benefits to the Class Members that are superior to those recovered in similar

14

overtime wage class actions. The Settlement is particularly advantageous to the Settlement Class

15

because the proceeds will be distributed shortly as opposed to waiting additional years for a similar,

16

or possibly, less favorable result.

17

There is little question that the result achieved in this litigation is excellent. The absence of any

18

objection to either the settlement or the attorneys’ fee request from any of a total of 111 Settlement

19

Class Members bears this out. Settlement Class Members will receive thousands of dollars as their

20

share of the settlement. The average Class Member’s recovery is a sum that exceeds most Class

21

Member’s expectations and an amount that may make a real impact on their lives.

22

The Settlement Class Members also received a substantial benefit as the result of the relatively

23

early settlement of this action both in terms of receiving the settlement proceeds much sooner and

24

avoiding the risk of receiving nothing at all. See Glass v. UBS Fin. Servs. 2007 U.S. Dist. LEXIS 8476

25

at * 48 (N.D.Cal. Jan. 27 2007) (“The early settlement of the instant action resulted in significant

26

benefit to the class…. Class counsel achieved an excellent result for the class members by settling the

27

instant action promptly.”) As a result, this factor would support an enhancement of the fee award, and

28

8 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

therefore certainly supports the fee award in this case which is at the ordinary benchmark of 25%.

2

2.

Risks of Litigation

3

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

4

involving complicated legal issues, is a significant factor in the award of fees.” Omnivision, 2007 WL

5

4293467 at *9.

6

At the time this case was brought, the result was far from certain. Defendant’s practice at issue

7

here had been in place for years. Defendant’s numerous defenses to the merits of the case and to class

8

certification created difficulties with proof and complex legal issues for Class Counsel to overcome.

9

For example, were the Plaintiffs’ and Class Members’ claims barred from recovery by the

10

“administrative exemption”as was held in Kennedy, supra, 410 F.3d 365, 373-74? Did Class Members

11

perform work that was “directly related to management or general business operations” within the

12

meaning of the “executive exemption” as was held in Baldwin, supra, 266 F.3d 1104? Would

13

Plaintiffs be able to obtain class certification and thereby recover on behalf of Defendant’s employees?

14

All of these were very substantial risks any of which could have resulted in the Class receiving nothing

15

if the claims were litigated. (Declaration of Blumenthal ¶10(f).)

16

Finally, would Plaintiffs be able to obtain class certification and thereby recover on behalf of

17

all employees at all banking locations? Dunbar, supra, 141 Cal. App. 4th at 1431-32, affirmed an order

18

denying class certification to a class of employees who claimed that they were denied overtime pay

19

holding that the issue of whether an exemption applied would have to be individually determined for

20

each class member, which meant that common issues did not predominate. In particular, the Dunbar

21

decision relied on the significant variation from store to store, which is the exact argument advanced

22

by Defendant in this case. See also Morisky, supra,. 111 F. Supp. 2d at 498. (application of overtime

23

exemption depended on individual issues that barred certification); Walsh, supra, 148 Cal. App. 4th

24

1440 (upholding the decertification of an overtime class action). Here, Defendant had stated that class

25

certification would be vigorously opposed, and there was certainly a risk that class certification would

26

have been denied. (Declaration of Blumenthal, ¶ 10(g).)

27 28

All of these were very substantial risks any of which could have resulted in the Class receiving 9 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

nothing if the claims were litigated. This factor therefore also supports an enhancement of the

2

percentage, making the requested fee equal only to the benchmark undeniable reasonable.

3

3.

The Skill Required and the Quality of Work

4

Practice in the narrow area of wage and hour class action litigation requires skill, knowledge

5

and experience in two distinct subsets of the law. Expertise in one does not necessarily translate into

6

expertise in the other. Class Counsel must have expertise in both. The issues presented in this case

7

required more than just a general appreciation of wage and hour law and class action procedure as this

8

area of practice is still developing as evidenced by the Supreme Court’s recent ruling in Murphy v.

9

Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) (holding that payments under Labor Code §

10

226.7 are a wage not a penalty) and the recent decision by the Ninth Circuit in Mevorah v. Wells Fargo

11

Home Mortg. (In re Wells Fargo Home Mortg.), 571 F.3d 953 (9th Cir. 2009).

12

The Settlement was possible only because Class Counsel was able to convince Defendant that

13

Plaintiff could potentially prevail on the difficult legal issues regarding overtime compensation, achieve

14

class certification, overcome difficulties in proof as to monetary relief and take the case to trial if need

15

be, as exemplified by the foregoing.

16

In successfully navigating these hurdles Class Counsel displayed the necessary dual skill set.

17

The high quality of the Class Counsel’s work in this case was mandated by the very vigorous and

18

experienced defense presented by counsel for Defendant. Class Counsel was required to invest

19

substantial time and resources in investigation, discovery and determination of potential damages and

20

communicating with and responding to opposing counsel’s and class members’ requests and inquiries.

21

4.

The Contingent Nature of the Fee and the Financial Burden

22

There is a substantial difference between the risk assumed by attorneys being paid by the hour

23

and attorneys working on a contingent fee basis. The attorney being paid by the hour can go to the

24

bank with his fee. Powers, supra, 229 F.3d at 1256. The attorney working on a contingent basis can

25

only log hours while working without pay towards a result that will hopefully entitle him to a market

26

place contingent fee taking into account the risk and other factors of the undertaking. Id at 1257.

27

Otherwise, the contingent fee attorney receives nothing. Id.

28

10 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

In this case, Class Counsel subjected themselves to this contingent fee market risk in this all or

2

nothing contingent fee case wherein the necessity and financial burden of private enforcement makes

3

the requested award appropriate. The contingent fee practices of Class Counsel do not accommodate

4

the investment of unnecessary time in a case. This case was litigated on a contingent basis with all of

5

the concomitant risk factors inherent in such an uncertain undertaking. (Declaration of Blumenthal,

6

¶ 10(d).) On account of the concerted and dedicated effort this case demanded in order to properly

7

handle and prosecute, Class Counsel were precluded from taking other cases, and in fact, had to turn

8

away other potential fee generating cases. (Declaration of Blumenthal at ¶3.)

9

Counsel retained on a contingency fee basis, whether in private matters or in class action

10

litigation, is entitled to a premium beyond their standard, hourly, non-contingent fee schedule in order

11

to compensate for both the risks and the delay in payment. The simple fact is that despite the most

12

vigorous and competent of efforts, success is never guaranteed. McKittrick v. Gardner, 378 F.2d 872,

13

875 (4th Cir.1967). Indeed, if counsel is not adequately compensated for the risks inherent in difficult

14

class actions, competent attorneys will be discouraged from prosecuting similar cases. Steiner v. BOC

15

Financial Corp., 1980 U.S. Dist. LEXIS 14561 at *6- *7 (S.D.N.Y. 1980).

16

Here, the contingent nature of the fee award, both from the point of view of eventual settlement

17

and the point of view of establishing eligibility for an award, also warrant the requested fee award. A

18

number of difficult issues, the adverse resolution of any one of which could have doomed the successful

19

prosecution of the action, were present here. As discussed above, attorneys’ fees in this case were not

20

only contingent but extremely risky, with a very real chance that Class Counsel would receive nothing

21

at all for their efforts, having devoted time and advanced costs. Class Counsel has previously invested

22

in cases which resulted in no recovery. (Declaration of Blumenthal, ¶ 10(e).)

23

Class Counsel were required to advance all costs in this litigation. Especially in this type of

24

litigation where the corporate defendants and their attorneys are well funded, this can prove to be very

25

expensive and risky. Accordingly, because the risk of advancing costs in this type of litigation can be

26

significant, it is therefore cost prohibitive to many attorneys. (Declaration of Blumenthal, ¶ 10(j)).

27

The financial burdens undertaken by Plaintiffs and Class Counsel in prosecuting this action on behalf

28

11 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

of the Class were very substantial. To date, Class Counsel advanced more than $17,000 in costs which

2

could not have been recovered if this case had been lost. (Declaration of Blumenthal at ¶ 10(j)).

3

Plaintiff undertook the risk of liability for Defendant’s costs and fees had this case not succeeded, as

4

well as other potential negative financial ramifications from having come forward to sue Defendant on

5

behalf of the Class.

6 7 8

Accordingly, the contingent nature of the fee and the financial burdens on Class Counsel and Plaintiffs also support the fee requested. 5.

Awards in Similar Cases

9

The attorneys’ fees requested by Class Counsel are within the range of fees awarded in

10

comparable cases. A review of class action settlements over the past 10 years shows that the courts have

11

historically awarded fees in the range of 20% to 50%, depending upon the circumstances of the case.

12

In re Warner Communications, supra, 618 F.Supp. at 749-50. Class Counsels’ requested fees and costs

13

are 25% of the total value of the case, a percentage well within the range of reasonableness given the

14

excellent results obtained for the Class, the risks undertaken, and the skill of the prosecution. See

15

Vizcaino, supra, 290 F.3d at 1047-49 (approving 28% attorneys fee award as reflecting “the standard

16

contingency fee for similar cases”).

17 18 19 20 21 22

In In re Warner Communications, Judge Keenan concluded that percentage fees in common fund cases range from 20% to 50%. Id., 618 F.Supp. at 749-50. Professor Newberg is in accord: No general rule can be articulated on what is a reasonable percentage of a common fund. Usually 50% of the fund is the upper limit on a reasonable fee award from a common fund in order to assure that the fees do not consume a disproportionate part of the recovery obtained for the class, although somewhat larger percentages are not unprecedented. Newberg, Newberg on Class Actions, 3rd Ed., § 14.03, at 14-13§§.

23

Some of the class action awards obtained by Class Counsel herein in similar overtime

24

employment actions throughout the state bear out the reasonableness of a fee and costs award

25

equivalent to 25% of the total settlement value:

26

On March 9, 2009, in Barcia v. Contain-a-Way, Inc., (U.S.D.C. Southern District of California),

27

the Honorable Irma E. Gonzalez, Chief Judge, awarded a 25% fee request to Class Counsel in an

28

12 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

overtime class action. Barcia v. Contain-A-Way, Inc., 2009 U.S. Dist. LEXIS 17118, *15-18 (S.D.

2

Cal. 2009). (Declaration of Blumenthal at ¶11.)

3

On February 2, 2009, in Louie v. Kaiser Foundation Health Plan, (U.S.D.C. Southern District

4

of California), the Honorable Irma E. Gonzalez, Chief Judge, awarded a 25% fee request to Class

5

Counsel in an overtime class action. Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS

6

78314 (S.D. Cal. 2009) (Holding that “[i]n wage and hour cases “[t]wenty-five percent is considered

7

a benchmark for attorneys' fees in common fund cases.”) (Declaration of Blumenthal at ¶11.)

8

On December 11, 2008, in Gruender et al. v. First American Title, (Orange County Superior

9

Court), the Honorable David C. Velasquez awarded a 25% fee request to Class Counsel in an overtime

10

class action. (Declaration of Blumenthal at ¶11.)

11

On November 12, 2008, in Connell v. Sun Microsystems (Alameda Superior Court Case No.

12

RG06252310), the Honorable Steven Brick awarded a 30% fee request to Class Counsel in an overtime

13

class action. (Declaration of Blumenthal at ¶11.)

14

An Attorneys’ Fee and Cost award equal to 25% of the common fund in this case is therefore

15

reasonable in light of the prevailing fees that have been awarded in other similar cases as set forth

16

above. Furthermore, it is certainly significant that not a single objection has been made to the fee

17

request.

18

D.

19

In a common fund settlement “[t]he lodestar method is merely a cross-check on the

20

reasonableness of a percentage figure”. Vizcaino, supra, 290 F.3d at 1050, n.5. In this case,

21

consideration of Class Counsel’s overall lodestar as a cross-check to the percentage figure also strongly

22

supports the reasonableness of the requested fee award.8 Class Counsel seeks an attorneys’ fee award

23 24 25 26 27 28

Lodestar Cross-Check

8

The Lodestar/Multiplier method is used in fee-shifting cases. Applied here, Lodestar/Multiplier method would also justify the requested award because the factors discussed above support the reasonableness of an fee award with a modest 1.75 multiplier. See e.g., Vizcaino, supra, 290 F.3d at 1051 (3.65 multiplier approved because of substantial risk); Rievman v. Burlington Northern Railroad Co., 118 F.R.D. 29, 35 (S.D.N.Y. 1987) (“In recent years, multipliers between 3 and 4.5 have been common”); Amaral v. Cintas Corporation No. 2, 163 Cal. App. 4th 1157, 1174 (2008) (approving lodestar with a 1.65 multiplier in a fee-shifting case); Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D.Fla. 1988) (court applied multiplier of 3, 13 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

of $243,750 (equal to 25% of the Settlement Sum), and Class Counsel’s lodestar in this case as of

2

November 9, 2010 is $138,837.50. (Declaration of Blumenthal, ¶ 10(k).) Therefore, the requested fee

3

award as a percentage of the fund is equal to the lodestar incurred in this case with only a modest

4

multiplier of 1.75. As a result, using Class Counsel’s lodestar as a cross-check clearly establishes the

5

reasonableness of the requested fee award.

6 7

IV.

CLASS COUNSEL’S COSTS WERE REASONABLY INCURRED

8

As part of the agreement, the parties agreed that Class Counsel shall be entitled to recoup their

9

reasonable litigation costs from the Settlement Sum, not to exceed $25,000. (Settlement Agreement

10

at Section 3.06(c).) Subject to Court approval, the Parties agreed that Settlement Class Counsel will

11

be paid reasonable and actual costs in prosecuting this litigation per Settlement Class Counsel's billing

12

statement

13

Class Counsel requests reimbursement for litigation expenses and costs in the amount of

14

$17,852.69 based upon counsel’s billing records, which is less than the agreed amount in the Settlement

15

Agreement. These expenses include the amounts paid for court filing fees, expert witness fees,

16

mediator fees, document copying fees, legal research charges, deposition travel expenses and delivery

17

charges, all of which are costs normally billed to and paid by the client. These costs were reasonably

18

incurred in the prosecution of this matter. (Declaration of Blumenthal, ¶ 13.)

19 20

V.

THE REQUESTED SERVICE AWARD IS REASONABLE

21

Plaintiff respectfully submit that for her service as the Class Representative, the Named Plaintiff

22

Nimet Behar should be awarded $4,000 in accordance with the Settlement Agreement. Defendant has

23

agreed to the payment of this service award to the Plaintiff.

24

As the sole Representative of the Class, Plaintiff performed her duty to the Class admirably and

25 26 27 28

noting that this was "average" for a large complicated class action where multipliers ranged from 2.26 to 4.5); Rabin v. Concord Assets Group Inc., [1991-1992 Transfer Binder] Fed. Sec. L. Rep. (CCH) Par. 96,471, at 92,081 (S.D.N.Y. 1991)(court applied multiplier of 4.4, noting that multipliers from 3 to 4.5 have commonly been awarded). 14 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

without exception. Plaintiff provided valuable documents from her employment at Defendant which

2

were instrumental in Class Counsels’ understanding of the case. Plaintiff also responded to numerous

3

requests and correspondence from Class Counsel, providing invaluable assistance and information

4

which ultimately resulted in the Settlement now benefitting the Class. (Decl of Blumenthal at ¶12).

5

Plaintiff also assumed the risk , that she might possibly be liable for costs incurred in connection

6

with this case and being “blacklisted” by other future employers. Without Plaintiff’s support,

7

cooperation and information, no other fellow employees would be receiving any benefit.

8

The payment of service awards to successful class representatives is appropriate and the

9

amounts of $4,000 is well below the currently accepted range. See e.g. Van Vranken v. Atlantic

10

Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995)(incentive award of $50,000); In re Dun &

11

Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) (two incentive awards of

12

$ 55,000, and three incentive awards of $ 35,000); Brotherton v. Cleveland, 141 F.Supp.2d 907, 913-14

13

(S.D.Ohio 2001)(granting a $50,000 service award); Enter. Energy Corp. v. Columbia Gas

14

Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) ($50,000 awarded to each class representative);

15

Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 at *51-*52 (N.D.Cal. 2007)(awarding $25,000

16

service award in FLSA overtime wages class action); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir.

17

1998)(affirming $25,000 service award to class representative in ERISA case);

18

Plaintiff’s efforts in bringing the lawsuit have conferred a very substantial benefit the Settlement

19

Class Members and there has been no objection to the service payment by any member of the Class.

20

(Declaration of Blumenthal, ¶¶ 14-15.) Accordingly, Class Counsel respectfully request that the Court

21

approve the requested service payment.

22 23

VI.

CONCLUSION

24

The representation of the Class provided by Class Counsel has been wholly contingent. Class

25

Counsel’s fee request is well within the realm of reasonableness for fee requests approved by California

26

and federal courts given the efforts expended in this case and the stage of proceedings at the time of

27

the Settlement. Moreover, Class Counsel achieved an excellent result for the immediate benefit of

28

15 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275


1

Class Members. Based on the foregoing, Class Counsel respectfully request approval of the application

2

for award of attorneys’ fees equal to $243,750 (equal to 25% of the Settlement Fund), an award of

3

litigation expenses in the amount of $15,964.3, and approval of the requested service award of $4,000

4

for the Plaintiff. It should be noted that as part of this award, Class Counsel will finish the prosecution

5

of this action including the disbursement of funds, final accounting and defense of an appeal, if any,

6

without a subsequent attorneys’ fee request.

7 Dated: November 10, 2010

BLUMENTHAL, NORDREHAUG & BHOWMIK

8 By:

s/Norman B. Blumenthal Norman B. Blumenthal, Esq. Attorneys for Plaintiff

9 10 K:\D\NBB\Behar v. Union Bank\Final Approval\p-Memorandum-Fees.wpd

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

16 MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES Case No. 30-2009-00317275

Memorandum - Fees - FINAL  

CASE No. 30-2009-00317275 Class Action MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY’S FEES AND LITIGATION...

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