1 2 3 4 5 6 7 8 9 10 11 .g 12 t-l i:i:: fr 13 ll.l 0 14 o:i ·c;; 15 o e £-< p.. IZl -< 16 17 18 19 20 21 22 23 24 25 26 27 28 Gene J. Stonebarger, State Bar No. 209461 [email protected]Richard D. Lambert, State Bar No. 251148 [email protected]STONEBARGER LAW A Professional Corporation 75 Iron Point Circle, Ste. 145 Folsom, CA 95630 Telephone: (916) 235-7140 Facsimile: (916) 235-7141 Attorneys for Representative Plaintiffs and the Class UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JAMES WILSON, an individual, and JACK ) WHITE, an individual, on behalf of themselves ) and all others similarly situated, ) ) Representative ) Plaintiffs, ) ) vs. ) METALS USA, INC., a Delaware Corporation; and DOES 1-100, inclusive, ) Defendants. ) CASE NO. 2:12-CV-00568-KJM-DB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AWARDS Date: September 6, 2019 Time: 10:00 a.m. Courtroom: 3 Judge: Hon. Kimberly J. Mueller MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 1 of 33
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Gene J. Stonebarger, State Bar No. 209461 [email protected] Richard D. Lambert, State Bar No. 251148 [email protected] STONEBARGER LAW A Professional Corporation 75 Iron Point Circle, Ste. 145 Folsom, CA 95630 Telephone: (916) 235-7140 Facsimile: (916) 235-7141
Attorneys for Representative Plaintiffs and the Class
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JAMES WILSON, an individual, and JACK ) WHITE, an individual, on behalf of themselves ) and all others similarly situated, )
) Representative )
Plaintiffs, ) )
vs. )
METALS USA, INC., a Delaware Corporation; ~ and DOES 1-100, inclusive, )
Defendants. ~ )
CASE NO. 2:12-CV-00568-KJM-DB
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AWARDS
Date: September 6, 2019 Time: 10:00 a.m. Courtroom: 3 Judge: Hon. Kimberly J. Mueller
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 1 of 33
THE LITIGATION ........................................................................................................... 2
CALIFORNIA LAW ENTITLES COUNSEL TO A REASONABLE FEE ................... 3
A. Class Counsel is Entitled to a Fee Award Under the CLRA ................................ 3
B. Class Counsel is Entitled to a Fee Award Under Section 1021.5 ......................... 4
AN A WARD OF $983,228.20 IN ATTORNEYS' FEES IS REASONABLE ................................................................................................................ 5
A. Bluetooth Does Not Apply ................................................................................ .... 6
B. Class Counsel Has Revised its Lodestar ............................................................... 7
C. Class Counsel's Revised Lodestar is Reasonable ................................................. 8
1. The Hours Expended by Class Counsel are Reasonable .......................... 8
2. Class Counsel's Hourly Rates are Reasonable ......................................... 10
D. IF THE COURT WERE TO REDUCE THE RATES OR HOURS SPENT, AN UPWARD MULTIPLIER IS APPROPRIATE ............................. 12
1. The Quality of Class Counsel's Representation was Remarkable ............................................................................................. 13
2. The Benefits Obtained for the Class are Substantial .............................. 14
3. The Issues Presented Were Extraordinarily Novel and Complex .................................................................................................. 15
4. The Risk ofNon-Payment was Tremendous .......................................... 16
A CROSS-CHECK ON THE TOTAL SETTLEMENT AMOUNT PROVES THE REQUESTED FEE IS REASONABLE .... ........... ......................... ....... 16
A. The Court Must Analyze Class Counsel's Request for Fees Based on Amount Made Available as Opposed to the Amount Actually Claimed ............................................................................................................... 16
B. The Total Value of the Settlement is Approximately $4,015,000.00 ..... ............ 18
C. Even Using a Value of$2,800,000, the Fee Award is Still Reasonable .................................................................... ...................................... 19
TABLE OF CONTENTS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 2 of 33
1 VI. CLASS COUNSEL SHOULD BE AWARDED COSTS .............................................. 20
2 VII. THE CLASS REPRESENTATIVE AWARDS ARE REASONABLE ......................... 20
3 VIII. CONCLUSION ............................................................................................................... 23
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TABLE OF CONTENTS
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1 Plaintiffs James Wilson and Jack White ("Plaintiffs") and Stonebarger Law, APC ("Class
2 Counsel") respectfully submit the following Motion for Attorneys' Fees, Costs, and Incentive
3 Awards as follows:
4 I. INTRODUCTION
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Plaintiffs and Class Counsel find the requested amounts to be proper and reasonable
given the extraordinary risks, length, difficulty, and complexity ofthis Action.
As set more fully below, Class Counsel: (i) undertook representation on a purely
contingent basis; (ii) was opposed by an unrelenting opponent; (iii) undertook the Action despite
the fact that the outcome was far from certain given the facts, law, and accompanying
circumstances; (iv) litigated the Action with the utmost vigor and legal skill; and (v) produced an
excellent result for the Class following nearly eight (8) years oflitigation.
Given the substantial delay in payment, and the time and costs advanced by Class
Counsel (on a purely contingent basis), Class Counsel has undoubtedly earned $983,228.201 in
attorneys' fees and is due $127,771.802 in unreimbursed costs (to date). The requested fee is fair,
reasonable, and justified under the applicable law and the factual circumstances, including the
risks and challenges faced by Class Counsel in undertaking this Action and the substantial
benefit provided for the Class. Thus, Class Counsel seeks a total award of $127,771.80 in costs,
18 and $983,228.20 in fees for its efforts.
19 Plaintiffs filed suit specifically to hold MUSA liable for the warranty protection provided
20 to the Class upon purchasing Dura-Loe stone coated roofing panels (the "Tiles"). The
21 Settlement, undoubtedly, achieves this goal by securing MUSA's agreement to make $2,800,000
22 available to the Class to make claims.
23 Absent the efforts of Class Counsel, there is no doubt that the Class could not have been
24 eligible to receive the relief provided for in the Settlement; to the contrary, they would not have
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26 1 The current lodestar of Class Counsel exceeds more than $1,040,000 to date. Nonetheless, Class Counsel seeks $983,228.20 plus $127,771.80 in costs for its efforts over the course of eight (8) years.
27 2 While Class Counsel recognizes the requested cost amount is approximately $12,750 greater than that stated in the preliminary approval papers, additional costs related to postage, experts, and notice were paid since that filing. A an
28 itemization of Class Counsel's costs is set forth in the Declaration ofRichard D. Lambert in Support of Motion for Fees, Costs, and Incentive Awards ("Lambert Deel.") at ~29.
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1 received anything. That Plaintiffs and Class Counsel achieved the desired result and provided the
2 Class with a benefit in the face of continual and staunch opposition by MUSA should be
3 rewarded.
4 In addition, Mr. Wilson should be awarded $25,000 and Mr. White should be awarded
5 $14,000 as incentive awards given their respective dedication to this Action ("Incentive
6 Awards"). While the requested Incentive Awards maybe higher than those ordinarily awarded,
7 given the substantial risks faced by Plaintiffs (and the ultimate risk of a cost award against them),
8 the uncertainty of this Action, and the delay in payment, the requested Incentive Awards are fair
9 and reasonable.
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Indeed, the requested Incentive Awards represent the specific amount each respective
Plaintiff was offered by Defendant Metals USA, Inc. ("MUSA") seven (7) years ago to resolve
each respective claim. See Declaration of James Wilson in Support of Plaintiffs Motion for
Attorneys' Fees, Costs, and Incentive Awards ("Wilson Deel.") at ifif5-6; see Declaration of Jack
White in Support of Plaintiffs Motion for Attorneys' Fees, Costs, and Incentive Awards ("White
Deel.") at ifi!5-6. Given the fact that each Plaintiff was offered an amount that would have
ultimately made him whole at the onset of this Action, should not be held against them; to the
contrary, their dedication in obtaining recovery for the Class should be rewarded. See Wilson
18 Deel. at i!i!5-6; White Deel. at iM!5-6.
19 Most critically, though, is the fact that the requested attorneys' fees, costs, and incentive
20 awards, will not diminish the monetary relief obtained for the Class. See Lambert Deel. at i\2.
21 Indeed, any amounts, as approved by the Court, will be paid separate and apart from the amount
22 made available to the Class. Id.
23 Thus, and as explained in more detail below, Class Counsel's requested fee and cost
24 award is reasonable and should be approved and the Incentive Awards should also be approved.
25 II. THE LITIGATION
26 For sake of brevity, Class Counsel directs this Court to the procedural history set forth in
27 the Plaintiffs' Motion for Preliminary Approval. [Doc. 140-1] at 2:01-5:03.
28 ///
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1 III. CALIFORNIA LAW ENTITLES CLASS COUNSEL TO A REASONABLE FEE
2 At the conclusion of a successful class action, plaintiffs' counsel may move for an award
3 ofreasonable attorney fees. See Fed. R. Civ. P. 23(h). The first issue in assessing any such
4 motion is to identify the applicable law, as both eligibility for a fee award and the method of
5 calculating that award varies depending on whether state or federal law applies.
6 This Court's jurisdiction arises under the Class Action Fairness Act ("CAFA"), 28 U.S.C.
7 § 1332( d), which means this Court is sitting in diversity. Exxon Mobil Corp. v. Allapattah
8 Services, Inc., 545 U.S. 546, 571 (2005)("CAFA confers federal diversity jurisdiction over class
9 actions ... [.]").
10 In diversity actions, "state law governs both the right to recover attorney's fees and the
11 computation of their amount." Collado v. Toyota Motor Sales, U.S.A., Inc., 550 Fed. Appx. 368,
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369 (9th Cir. 2013); Mangold v. Cal. Pub. Utils. Comm 'n, 67 F.3d 1470, 1478 (9th Cir.
1995)("Existing Ninth Circuit precedent has applied state law in determining not only the right to
fees, but also in the method of calculating the fees."). Thus, California state law controls the
method for determining fees here.
A. Class Counsel is Entitled to a Fee Award Under the CLRA
17 The CLRA, one of the claims alleged in the Action3, provides: "[t]he court shall award
18 court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to [the
19 CLRA]." Cal. Civ. Code§ 1780(e). As observed, "the availability of costs and attorneys fees to
20 prevailing plaintiffs is integral to making the CLRA an effective piece of consumer legislation,
21 increasing the financial feasibility of bringing suits under the statute." Broughton v. Cigna
23 512 (2003 )("The provision for recovery of attorney's fees allows consumers to pursue remedies
24 in cases as here, where the compensatory damages are relatively modest."). "Accordingly, an
25 award of attorney fees to 'a prevailing plaintiff' in an action brought pursuant to the CLRA is
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28 3 The Third Amended Complaint [Doc. 78], and each prior complaint, alleged violations of the CLRA and such claims are included in the Released Claims. See [Doc. 140-3] at ~1.33.
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1 mandatory, even where the litigation is resolved by a pre-trial settlement agreement." Kim v.
3 California courts have adopted two (2) approaches to determining when a party is a
4 "prevailing plaintiff' entitled to a fee award under the CLRA. The first approach borrows from
5 Section 1032 of the California Code of Civil Procedure and determines that a plaintiff is the
6 "prevailing party" if he or she obtained a "net monetary recovery." Kim, 149 Cal. App. 4th at
7 1 79. The second approach determines prevailing party status based upon whether a party
8 succeeded on a practical level. Id.; Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th
9 140, 150-51 (2006). Under this pragmatic approach, plaintiffs are considered prevailing parties
10 "if they succeed on any significant issue in litigation which achieves some of the benefit the
11 parties sought in brining suit." Id. at 154 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
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(1983)(emphasis in original).
Here, having achieved compensation for the Class, Class Counsel and Plaintiffs
accomplished their primary litigation objection, and thus, are prevailing parties under either the
"net monetary recovery" approach or the pragmatic approach set forth in Graciano.
B. Class Counsel is Entitled to a Fee Award Under Section 1021.5
17 In addition to fees under the CLRA, Class Counsel is also entitled to fees under Section
18 1021.5 -i.e., the private attorney general doctrine. Vasquez v. State of California, 45 Cal. 4th
19 243, 250 (2008). The fundamental objective of Section 1021.5 is "to encourage suits enforcing
20 public policies by providing substantial attorney fees to successful litigants in such cases." Id.
21 Section 1021.5 authorizes an award of attorney fees to a "successful party" in any action
22 that "has resulted in the enforcement of an important right affecting the public interest if: (a) a
23 significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public
24 or a large class of persons, (b) the necessity and financial burden of private enforcement are such
25 as to make the award appropriate, and ( c) such fees should not in the interest of justice be paid
26 out of the recovery, if any." Cal. Code of Civ. Proc. §1021.5; Lyons v. Chinese Hosp. Ass 'n, 136
27 Cal. App. 4th 1331, 1344 (2006)("Although section 1021.5 is phrased in permissive terms (the
28 court 'may' award), the discretion to deny fees to a party that meets its terms is quite limited.").
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1 Plaintiffs and Class Counsel satisfy the requirements under Section 1021.5 as they are: (i)
2 the "successful party" under the statute for the same reasons they qualify under the CLRA - has
3 achieved one of the primary benefits sought in bringing the Action (Lyons, 136 Cal. App. 4th at
4 1346 ("A 'successful' party means a 'prevailing' party."')); (ii) the case has conferred a
5 significant benefit on a large class of persons by making monetary relief available to at least one
6 thousand (1,000) consumers (see Graham v. DaimlerChrys/er Corp., 34 Cal. 4th 553, 561
7 (2004)(only 1,000 subject vehicles sold to California consumers satisfied the numerical
8 requirement of Section 1021.5) ); and (iii) without the incentive of an attorney fees award,
9 Plaintiffs could not have afforded lawyers to litigate this Action as, for example, their out-of-
10 pocket losses were not significant enough to hire a lawyer and litigate an individual suit. See
11 Ryan v. California Interscholastic Federation, 94 Cal. App. 4th 1033, 1044 (2001)("As to the
12 necessity and financial burden of private enforcement, an award is appropriate where the cost of
13 the legal victory transcends the claimant's personal interest; in other words, where the burden of
14 pursuing the litigation is out of proportion to the plaintiffs individual stake in the matter."); see
15 also Wilson Deel. at if9; see White Deel. at ~9.
16 IV. AN AWARD OF $983,228.20 IN ATTORNEYS' FEES IS REASONABLE
17 Under California law, "absent circumstances rendering the award unjust, an attorney fee
18 award should ordinarily include compensation for all the hours reasonably spent, including those
19 relating solely to the fee." Ketchum v. Moses, 24 Cal. 4th 1122, 1133 (2001); accord Serrano v.
20 Unruh, 32 Cal. 3d 621, 632-33 (1982)("The rule in federal courts of appeals when they construe
21 statutes like section 1021.5, embodying the private-attorney-general doctrine, is that, absent facts
22 rendering the award unjust, parties who qualify for a fee should recover for all hours reasonably
23 spent, including those on fee-related matters.").
24 As the Ninth Circuit has held: "Only in rare or exceptional cases will an attorney's
25 reasonable expenditure of time on a case not be commensurate with the fees to which he is
26 entitled." Velez v. Wynne, 220 F. App'x 512, 514 (9th Cir. 2007)(quoting Cunningham v. County
27 of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988)).
28 ///
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1 To determine the amount of fees to be awarded under fee-shifting statutes, such as those
2 at issue here, California courts apply the lodestar-multiplier method. Such is especially true here,
3 where there is no common fund. See Roos v. Honeywell Internal., Inc., 241 Cal. App. 4th 1472,
4 1490 (2015)("In fee-shifting cases, requests for attorney fees are typically measured under the
5 lodestar method."); Meister v. Regents of Univ. of California, 67 Cal. App. 4th 43 7, 448-49
6 (1998)("[T]he California Supreme Court intended its lodestar method to apply to a statutory
7 attorney's fee award unless the statutory authorization for the award provided for another method
8 of calculation"); Lealao v. Beneficial California, Inc. 82 Cal.App.4th 19, 26 (2000)("[T]he
9 primary method for establishing the amount of 'reasonable' attorney fees [in fee-shifting cases]
10 is the lodestar method").
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The first step in the lodestar analysis is to multiply the number of hours reasonably spent
by counsel on the litigation by a reasonable hourly rate. Graham, 34 Cal. 4th at 579; Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998). This is known as the "lodestar".
Once this raw lodestar figure has been determined, the Court may consider
"enhancement" factors to adjust the lodestar award, "including the quality of the representation,
the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk
of nonpayment." Hanlon, 150 F.3d at 1029; Ketchum, 24 Cal. 4th at 1132; Serrano v. Priest
("Serrano III"), 20 Cal. 3d 25, 48-49 (1977); Ramos v. Countrywide Home Loans, Inc. 82 Cal.
App. 4th 615, 622 (2000); Beasley v. Wells Fargo Bank, 235 Cal. App. 3d 1407, 1418 (1991).
However, "trial courts need not, and indeed should not, become green-eyeshade
accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to
achieve auditing perfection." Fox v. Vice, 563 U.S. 826, 838 (2011).
A. Bluetooth Does Not Apply
Plaintiffs and Class Counsel respectfully submit In re Bluetooth Headset Prods. Liab.
Litig., 654 F.3d 935 (9th Cir. 201 l)("Bluetooth ")is inapplicable as it only applies to settlements
"negotiated prior to formal class certification." Id. at 946 (emphasis in original); see also Allen v.
Bedolla, 787 F.3d 1218, 1224 (9th Cir. 2015); In re Ferrero Litigation, 583 F. App'x 665, 668
(9th Cir. 2014).
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1 The record is clear: this Court certified a Class in July of2016 and denied MUSA's
2 motion for summary judgement approximately one (1) year later. See Lambert Deel. at if3. The
3 fact that the Class was formally certified by this Court and that summary judgement was denied,
4 excises this case from Bluetooth.
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Indeed, when the Parties opted to explore resolution, such discussions were performed
following numerous arms-length negotiations before a neutral mediator. See Lambert Deel. at ~4.
And, more specifically, the Parties zealously negotiated the terms of the Settlement and, only
following an agreement as to the Class terms, did the Parties discuss attorneys' fees and costs. Id.
Importantly, the Parties did not discuss an award of attorneys' fees, costs, or incentive awards
until after the Class benefit of $2,800,000 had been agreed upon. Id.
B. Class Counsel Has Revised its Lodestar
At preliminary approval, Class Counsel submitted a lodestar of $1,400,000. See Lambert
Deel. at ~5. This lodestar, at the time, was accurate based upon rates approved for Class Counsel
in the Southern District of California, Central District of California, Northern District of
California, the Superior Court for the County of San Diego, the Superior Court for the County of
Los Angeles, the Superior Court for the County of Ventura, the Superior Court for the County of
San Francisco and the Superior Court for the County of Sacramento, as well the total number of
18 hours expended by Class Counsel at that time. Id.
19 Following preliminary approval, however, Class Counsel has reviewed previous orders
20 issued by the Eastern District of California with regard to hourly rates and, as a result, has
21 decreased its hourly rates to coincide with those previously approved by this Court. Id. at if6.
22 In addition, Class Counsel has reduced its hours in an effort to eliminate: (i) unnecessary
23 work: (ii) duplicative work; or (iii) time spent by an attorney that could have been performed by
24 a paralegal. As a result, Class Counsel has decreased the hours included in its previously
25 submitted lodestar. See Lambert Deel. at if7.
26 Thus, Class Counsel hereby submits a lodestar of $1,040,810 (to date), which applies the
27 following rates: (i) Mr. Stonebarger, $475.00; (ii) Mr. Lambert, $400.00; (iii) Ms. Yan, $250.00;
28 and (iv) paralegals $100.00. Id. at if8.
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1 That Class Counsel has reduced its prevailing (and previously accepted) rates and has
2 undertaken to eliminate numerous hours further justifies the current lodestar requested by
3 Plaintiffs and Class Counsel.
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C. Class Counsel's Revised Lodestar is Reasonable
"There is a strong presumption that the lodestar figure represents a reasonable fee."
Morales v. City of San Rafael, 96 F.3d 359, 363, at n.8 (9th Cir. 1996); see also Cunningham,
879 F.2d at 488. The lodestar "constitutes earned compensation; unlike a windfall, it is neither
unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for
such services, which typically includes a premium for the risk of nonpayment or delay in
payment of attorney fees." Ketchum, 24 Cal. 4th at 1138. Prevailing counsel are routinely
awarded their lodestar. See, e.g., Blackwell v. Foley, 724 F. Supp. 2d 1068, 1085 (N.D. Cal.
2010)(holding that, under section 1021.5, prevailing counsel were entitled to be "fully
compensated" in the amount of their lodestar).
1. The Hours Expended by Class Counsel are Reasonable
The number of hours Class Counsel devoted to this Action is reasonable. Serrano, 32
Cal. 3d at 632-33 (counsel are entitled to compensation for all hours reasonably expended);
Caudle v. Bristow Optical Co., 224 F.3d 1014, 1028 (9th Cir. 2000). To file, litigate, and prepare
for trial in this Action (over the course of nearly eight (8) years), Class Counsel had to spend
considerable time due to the unique circumstances of this Action.
Indeed, this was not a case where discovery and the information critical to prevail at class
certification, defeat summary judgment, and prepare for trial was readily available from MUSA.
See Lambert Deel. at ~9. To the contrary, very few documents, reports, and data was in the
possession of MUSA which required Class Counsel to spend a substantial amount of time
seeking discovery and information regarding the Tiles from third parties and absent Class
members. Id. Such information was critical for the success of this Action and, absent such
monumental efforts, there is little doubt the Action would have progressed as it did. Id.
Moreover, this Action was vigorously litigated for nearly eight (8) years during which the
Parties engaged in substantial law and motion practice including two (2) motions to dismiss, a
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1 contested motion for class certification, and a contested motion for summary judgment. Id. at
2 ifl 0. Each of these motions involved complex legal and factual issues. Id.
3 Class Counsel will include, under seal, in conjunction with its Final Approval Motion, its
4 time sheets for in camera review, a summary of such time - totaling more than 3,770 hours- is
5 summarized in the Declaration of Richard D. Lambert and includes the following:
6 • communicating with clients and Class Members;
7 • performing pre-filing research regarding MUSA's purchase ofDura-Loc's assets; • interviewing absent Class Members;
8 • traveling to and meeting with Class Members and conducting site inspections; • gathering documents and Tiles from Class Members;
9 • drafting and obtaining discovery from absent Class Members; • communicating and working with experts;
10 • researching legal claims and MUSA' s defenses, and drafting complaints; • researching and writing the briefs opposing MUSA's motions to dismiss;
11 • researching and writing briefs for the motion for class certification; • preparing for oral argument at hearings;
12 • drafting and meeting and conferring with MUSA on discovery; • responding to written discovery;
13 • reviewing document productions; • preparing for and taking depositions;
14 • preparing absent Class Members for depositions and defending them; • preparing experts for depositions and defending them;
15 • researching, writing, and gathering the evidence to oppose summary judgement; • traveling to and attending mediations;
16 • negotiating an agreement in principle to resolve the litigation; • negotiating the specific terms of the Settlement;
17 • drafting the settlement papers, • drafting the preliminary approval motion;
18 • drafting the fee motion; • communicating with Class Members following the Settlement; and
19 • assisting with submission of Claim Forms.
20 See Lambert Deel. at if 11.
21 All of these tasks were performed for the benefit of the Class, and the time spent was
22 reasonable. Lambert Deel. at ifl2. Class Counsel took care to prevent the duplication and
23 inefficiencies that might otherwise have occurred and, to the extent there was any duplication or
24 inefficiencies, Class Counsel has eliminated all such hours. Id.
25 Given that Class Counsel has already reduced its time, it should be paid for all hours set
26 forth in its records. Hensley, 461 U.S. at 435-36; Ketchum, 24 Cal. 4th at 1133; Moreno v. City of
27 Sacramento, 534 F .3d 1106, 1112 (9th Cir. 2008)("lawyers are not likely to spend unnecessary
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MEMORA..~DUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, Ai~D INCENTIVE AW ARDS
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time on contingency fee cases" and "[b ]y and large, the court should defer to the winning
lawyer's professional judgment as to how much time he was required to spend on the case.").
2. Class Counsel's Hourly Rates are Reasonable
In assessing the reasonableness of an hourly rate, the Court considers whether the rate is
"in line with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895, n.11 (1984).
Yet, "to compensate for the delay in payment," the Court should apply each biller's current rate
for all hours of work performed, regardless of when the work took place. In re Washington
Public Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994).
"Courts may find hourly rates reasonable based on evidence of other courts approving
similar rates or other attorneys who are engaged in similar litigation charging similar rates."
Mcintosh v. McAfee, Inc., 2009 U.S. Dist. LEXIS 20505, *5 (N.D. Cal. 2009).
Class Counsel has applied the following rates in calculating its lodestar: (i) $475.00 for
Mr. Stonebarger; (ii) $400.00 for Mr. Lambert; (iii) $250.00 for Ms. Yan; and (iv) $100.00 per
hour for paralegals. These rates are in line with those previously approved by Courts in the
Eastern District of California; and, specifically, this Court.
Courts in the Eastern District have frequently found a rate of $100 an hour for paralegals
to be reasonable. See Hay v. Berryhill, 2018 U.S. Dist. LEXIS 214500, at *12 (E.D. Cal. 2018)
(prevailing rate in the Eastern District for paralegals is $100 per hour); Goodwin v. Winn Mgmt.
Grp. LLC, 2018 U.S. Dist. LEXIS 29684, at *25 (E.D. Cal. 2018)("This court has previously
held that the prevailing rate for paralegals in the Eastern District of California is between $95
22 and $115 per hour.").
23 As to Mr. Stonebarger, Class Counsel has set a rate of $475.00 per hour. Mr. Stonebarger
24 is a partner and has been practicing law in California for nineteen (19) years. See Lambert Deel.
25 at ir13 and Exh. 'A'. Considering the success of Mr. Stonebarger, the recognition of his peers,
26 and the approval by other Judges in this District as to his rate, $475.00 an hour is appropriate. Id.
27 at ir14, at Exh. 'B' at 7:07-10; see, e.g., Ogbuehi v. Comcast ofCal.!Colo./Fla.I Or., Inc., 2015
28 U.S. Dist. LEXIS 74548, at *31 (E.D. Cal. 2015)(calculating lodestar amount using hourly rates
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MEMORANDUM OF POINTS A.~D AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 20 of 33
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of$650 for an attorney with nineteen years' experience); Estrada v. iYogi, Inc., 2016 U.S. Dist.
LEXIS 8947, at *16 (E.D. Cal. 2016)("Courts in the Eastern District of California have regularly
approved hourly rates of$400 or more for partners or experienced attorneys"); Monterrubio v.
Best Buy Stores, L.P., 291 F.R.D. 443, 460-61 (E.D. Cal. 2013)(applying the "prevailing hourly
rates in the Eastern District of California" of$400 for partners); Ontiveros v. Zamora, 303
F.R.D. 356, 374 (E.D. Cal. 2014); Zaksom v. Am. Honda Motor Corp. Co., 2015 U.S. Dist.
LEXIS 74450, at *37-38 (E.D. Cal. 2015)("prevailing hourly rates in the Eastern District of
California are in the $400/hour range")( citing Monterrubio, 291 F.R.D. at 460); Bond v.
Ferguson Enterprises, Inc., 2011 U.S. Dist. LEXIS 70390, at *11-13 (E.D. Cal. 201 l)(awarding
$540 per hour for work performed by a partner with more than 8 years of experience); Vasquez v.
Coast Valley Roofing, Inc., 266 F.R.D. 482, 491 n.l (E.D. Cal. 2010) (awarding $525 per hour
for work performed by a partner with more than 10 years of experience).
Likewise, Class Counsel has set a rate of $400. 00 per hour for Richard D. Lambert, also a
partner. Mr. Lambert has practiced law in California for nearly twelve (12) years and, since his
admission, earned numerous accolades for his work in consumer class actions. See Lambert
Deel. at ifl 3 and Exh. 'A'. Given his experience and recognition in the field of consumer class
actions, a rate of$400.00 per hour is reasonable and within the rates applied by Courts in this
District. See Monterrubio, 291 F.R.D. 443, 460-61; Ontiveros, 303 F.R.D. at 374; Bond, 2011
U.S. Dist. LEXIS 70390, at *11-13; Vasquez, 266 F.R.D. at 491 n.l.
With respect to Ms. Yan, Class Counsel has applied a rate of$250.00 per hour which is
reasonable given her experience. Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 452 (E.D.
Cal. 2013); Ogbuehi, 2015 U.S. Dist. LEXIS 74548, at *31; Gong-Chun v. Aetna Inc., 2012 U.S.
Dist. LEXIS 96828, at *22 (E.D. Cal. 2012)("The prevailing rate in the local community for
attorneys with less than four years of experience is $300 per hour."). Based upon the foregoing,
Class Counsel submits the requested rates are more than reasonable.
26 Ill
27 Ill
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 21 of 33
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D. If the Court Were to Reduce the Rates or Hours Spent, an Upward Multiplier is Appropriate
While Class Counsel believes its lodestar should be awarded, were this Court to find: (a)
Class Counsel's hourly rates too high; or (b) Class Counsel's hours excessive, this Court should
award an upward multiplier in order to provide Class Counsel with a fee of$983,228.20.
Once a reasonable lodestar figure has been determined, the Court may then enhance the
lodestar with a "multiplier," if necessary, to arrive at a reasonable fee. Upward multipliers may
be appropriate based on consideration of"the quality of the representation, the benefit obtained
for the class, the complexity and novelty of the issues presented, and the risk of nonpayment."
Hanlon, 150 F.3d at 1029; Ketchum, 24 Cal. 4th at 1132; Jadwin v. Cnty. of Kern, 767 F. Supp.
2d 1069, 1134-35 (E.D. Cal. 2011). In wholly-contingent consumer class actions, like this one,
the California Supreme Court, which this Court is bound by, has observed:
A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.
A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work ifhe is paid only for the second of these functions. Ifhe is paid no more, competent counsel will be reluctant to accept fee award cases.
Ketchum, 24 Cal. 4th at 1132-33 (citations and internal quotation marks omitted); see a/so see
Graham, 34 Cal. 4th at 579-80.
Consequently, numerous Courts have observed the reasonableness of fee awards with
applications of multipliers of two (2) to four (4) and even higher. See, e.g., Wershba v. Apple
Computer, Inc., 91 Cal. App. 4th 224, 255 (2001)("Multipliers can range from 2 to 4 or even
higher."); Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 66 (2008)(same); Vizcaino v. Microsoft
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 27 of 33
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Thus, courts applying California law, have repeatedly denied attempts to limit a lodestar
based fee by reference to the recovery. See, e.g., Taylor v. Nabors Drilling USA, LP, 222 Cal.
App. 4th 1228, 1251-52 (2014)(affirming $680,520 fee where jury awarded only $160,000, and
stating that "[a ]ppellant has not cited any authority requiring that fee awards be proportional to
the amount of damages recovered"); Warren, 30 Cal. App. 5th at 37-39 (reversing lodestar-based
fee to the extent it had been reduced in light of damages awarded); Gong-Chun, 2012 U.S. Dist.
LEXIS 96828, at *64-65 (recognizing that "where attorneys' fees are awarded pursuant to a
statutory fee-shifting provision and are not taken out of a common-fund, the proportionality of
the attorneys' fees to the damages award is not the measure ofreasonableness.")(citing Vo v. Las
Virgenes Mun. Water Dist., 79 Cal. App. 4th 440, 446 (2000)(affinning $470,000 fee award
when plaintiff recovered only $3 7 ,500; "[ u ]nder the lodestar method, a party who qualifies for a
fee should recover for all hours reasonably spent unless special circumstances would render an
award unjust."); see also Harman v. City & County of San Francisco, 158 Cal. App. 4th 407
(2007)(upholding, subject to limited remand, $1.1 million fee on $30,300 in damages).
B. The Total Value of the Settlement is Approximately $4,015,000.00
As a cross-check, or as an independent methodology, the Court can utilize the
percentage-of-recovery method which further supports Class Counsel's request of$983,228.20
18 in fees.
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19 When determining the value of the settlement, courts consider the non-monetary benefits
20 conferred under the settlement terms. See, e.g., Staton v. Boeing co., 327 F.3d 938, 972-74 (9th
21 Cir. 2003); Hartless v. Clorox Co., 273 F.R.D. 630, 645 (S.D. Cal. 2011), aff'd, 473 F. App'x.
22 716 (9th Cir. 2012); Browning v. Yahoo! Inc., 2007 U.S. Dist. LEXIS 86266, at *40, n.19 (N.D.
23 Cal. 2007).
24 Here, the Settlement provides for $2,800,000 to the Class. Critically, the requested
25 amount of $983,228.20 in attorneys' fees to Class Counsel, the $127,771.80 in costs, the $39,000
26 in requested Incentive Awards, and the estimated $65,000 in administration costs, are to be paid
27 separate, and apart, from the Class benefit of$2,800,000.00. See Lambert Deel. at ir26.
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 28 of 33
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As such, the overall value of the Settlement is approximately $4,015,000 ($2,800,000 to
the Class, $1,150,000 in fees, costs, and incentive awards, and $65,000 in administration costs).
Id. at if27.4 Thus, Class Counsel's request for $983,228.20 in fees falls within the benchmark·
established by the Ninth Circuit as it constitutes approximately 24.4% of the total value provided
to the Class in the Settlement (i.e., $983,228.20 (fees)l$4,015,000 (total value)= 24.4%). Id.; see
Six Mexican Workers v. Arizona Citrus Workers, 904 F.2d 1301, 1311 (9th Cir. 1990).
C. Even Using a Value of $2,800,000, the Fee Award is Still Reasonable
Should this Court disagree with Class Counsel's analysis, and find that the overall value
provided to the Class should ultimately exclude attorneys' fees, costs, incentive awards, and
administration costs), the requested fee amount is still reasonable. In considering the factors that
might necessitate an attorneys' fee award in excess of the benchmark, Courts consider the same
factors as those to be considered when evaluating an upward multiplier. See Vizcaino, 290 F.3d
at 1048-49.5
Here, the Settlement makes available $2,800,000, and Class Counsel seeks $983,228.20
in attorneys' fees; or approximately 35% of the $2,800,000 Settlement ($983,228.201$2,800,000
= 35.1 %). See Lambert Deel. at if28. Such a percentage is hardly unreasonable given the issues,
delays, and difficulty posed by this Action as set forth above.
Indeed, numerous Courts in the Ninth Circuit have awarded similar amounts to attorneys
who have successfully prosecuted class actions. See Vasquez v. Coast Valley Roofing, Inc., 266
F.R.D. 482, 491 (E.D. Cal. 2010)(awarding 33.33% in fees); Williams v. Centerplate, Inc., 1013
U.S. Dist. LEXIS, at *21 (S.D. Cal. 2013). In fact, this Court has previously held that a request
for thirty-three percent (33%) in attorneys' fees was reasonable. See Dearaujo v. Regis Corp.,
23 2017 U.S. Dist. LEXIS 114300, at *29 (E.D. Cal. 2017).
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27 4 Class Counsel does not know the exact amount of the settlement administration costs, but submits $65 ,000 based
28 upon the average of the three (3) estimates it sought following settlement. See Lambert Deel. at if27. 5 Class Counsel would direct this Court to the multiplier factors as analyzed above.
19
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTOR,.~EYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 29 of 33
1 VI. CLASS COUNSEL SHOULD BE AWARDED COSTS
2 Class Counsel seeks to recover costs expended on this litigation in the amount of
3 $127,771.80. See Lambert Deel. at if29. Expense awards "should be limited to typical out-of-
4 pocket expenses that are charged to a fee paying client and should be reasonable and necessary."
5 In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1177 (S.D. Cal. 2007). Such costs
6 include reimbursement for: "(1) meals, hotels, and transportation; (2) photocopies; (3) postage,
7 telephone, and fax; (4) filing fees; (5) messenger and overnight delivery; (6) online legal
8 research; (7) class action notices; (8) experts, consultants, and investigators; and (9) mediation
9 fees." Id; Vincent v. Hughes Air West, 557 F.2d 759, 769 (9th Cir. 1977).
10 Here, Class Counsel is entitled to be reimbursed for costs in the amount of $127,771.80.
11 The requested costs (as itemized in the Declaration of Richard D. Lambert) are all directly
12 related to the prosecution of this action and were reasonably and necessarily incurred. See
13 Barbosa, 297 F.R.D. at 454; Fontes v. Heritage Operating, L.P., 2016 U.S. Dist. LEXIS 50502,
14 at *6 (S.D. Cal. 2016); see Lambert Deel. at if29.
15 Thus, Class Counsel requests that, in addition to Class Counsel's request for attorneys'
16 fees in the amount of$983,228.20, the Court grant its request for reimbursement of $127,771.80
17 in costs incurred in connection with the prosecution of this Litigation.
18 VII. THE CLASS REPRESENTATIVE AW ARDS ARE REASONABLE
19 "Incentive awards are fairly typical in class action cases." Rodriguez v. West Publishing
20 Corp., 563 F.3d 948, 958 (2009)(citing 4 ALBA CONTE ET AL., NEWBERG ON CLASS
21 ACTIONS§ 11:38 (4th ed. 2008)). These awards, generally sought after a settlement has been
22 reached, "compensate class representatives for work done on behalf of the class, to make up for
23 financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize
24 their willingness to act as a private attorney general." Id. at 958-59.
25 The Court has discretion to approve incentive awards, and considers: (i) the amount of
26 time and effort spent by the class representatives; (ii) the duration of the litigation; and (iii) the
27 personal benefit (or lack thereof) enjoyed by the class representatives as a result of the litigation.
28 Wilson v. Airborne, Inc., 2008 U.S. Dist. LEXIS 110411, at *37 (C.D. Cal. 2008).
20
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND L'l\il'CENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 30 of 33
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Here, the Class Representatives were instrumental in bringing this Action, have expended
numerous hours in order to do so, and bore considerable adverse risk. See Wilson Deel. at ~2-4,
and ifif7-9; White Deel. at ~~2-4, and W7-9. Each of these factors weigh in favor of the requested
incentive award of$25,000 to Plaintiff Wilson and $14,000 to Plaintiff White.
As to the first factor, in order to assert, litigate, and ultimately resolve this Action, each
Plaintiff was required to expend a substantial amount of time that no other individual member of
the Class was required. See Wilson Deel. at if2; White Deel. at if2. More specifically, each
Plaintiff continually conferred with Class Counsel throughout the nearly eight (8) year litigation,
undertook the task to locate documents, attend mediations, sit for depositions, and permit home
inspections. See Wilson Deel. at ~2; White Deel. at if2.
As to the second factor, and perhaps most importantly, is the fact, at the onset of this
litigation, MUSA offered Mr. Wilson and Mr. White a full refund of the price paid for their
respective roofs which would, if accepted, mooted each of their respective claims against
MUSA. See Wilson Deel. at W5-6; White Deel. at inf5-6. Each Plaintiff rejected such an offer
given the fact that each understood he was representing more than his own interests and was,
rather, representing the interests of the Class. Wilson Deel. at inf5-6; White Deel. at if~5-6. The
fact that each Plaintiff consciously chose to continue with a case that was hardly a certainty, at
great personal exposure, should be rewarded and not punished.
As to the third factor - risk - this weighs in substantial favor of the Plaintiffs.
Specifically, in class action losses, the class representatives are deemed the losing party and are
thus liable for the prevailing party's costs. Earley v. Superior Court, 79 Cal.App.4th 1420, 1433-
22 34 (2000).
23 Few are willing to undertake that risk, particularly given the substantial judgments
24 entered against class representatives. In re Tobacco Cases II, 240 Cal.App.4th 779, 805-07
25 (20 l 5)(upholding a defendant's cost award against the class representative in her personal
26 capacity in the amount of $764,552.73); Whiteway v. Fedex Kinkos Office & Print Services, Inc.,
27 2007 U.S. Dist. LEXIS 95398 (N.D. Cal. 2007)(named plaintiff assessed costs of $56,788). In
28 fact, the Whiteway court summed up the substantial risks associated with agreeing to act as a
21
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 31 of 33
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class representative:
'[T]he class representatives' dilemma - they must balance the risk of liability against their potential recovery .... While imposition of the entire cost burden on the named plaintiffs may have a chilling effect on the willingness of plaintiffs to bring class action suits, this effect easily may be outweighed by the potential recovery. All potential litigants must weigh costs of suit against likelihood of success and possible recovery before deciding to file suit. Those who choose to ·take the risks of litigation should be the ones to bear the costs when they are unsuccessful [citation omitted].
Id. at *6.
Here, in the event that MUSA prevailed in its defense, Plaintiffs stood to be personally
liable for MUSA's costs - which Class Counsel estimates to be more than $100,000. See
Lambert Deel. at ~30.
That each Plaintiff expended numerous hours, rejected personal settlement amounts equal
to his respective incentive awards, and faced personally liability in the event of an adverse
judgement, justifies the requested incentive awards. See Lambert Deel. at ~31. Indeed, the delay
in payment alone is sufficient to justify the requested amounts. Id.
Other Courts have recognized that in cases ofthis duration and complexity, incentive
awards, similar to those requested, here are appropriate. Jordan v. Mortgage, 2019 U.S. Dist.
LEXIS 74833, at *30 (E.D. Wash. 2019)(finding $20,000 preliminarily fair as an incentive
award when the case lasted six (6) years, plaintiff was deposed and subject to discovery, and
rejected a $25,000 individual settlement offer, and was nearly twenty (20) times greater than the
median estimated award to individual Class members); Van Vranken v. At!. Richfield Co., 901 F.
Supp. 294, 300 (N.D. Cal. 1995)(holding that incentive award of $50,000 to each named plaintiff
was fair and reasonable); Glass v. UBS Fin. Servs., Inc., 2007 U.S. Dist. LEXIS 8476 (N.D. Cal.
2007) (approving incentive award of$25,000 for each of four named plaintiffs); Singer v. Becton
Dickinson & Co., 2010 U.S. Dist. LEXIS 53416, at *25 (S.D. Cal. 2010) ($25,000 incentive
25 award in case with settlement fund of $548, 775).
26 Indeed, it would be a travesty for either Mr. Wilson or Mr. White to be provided less by
27 and through this Settlement than that which they were offered nearly eight (8) years ago. Thus,
28
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MEMORANDUM OF POJNTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 32 of 33
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1 the requested Incentive Award in the amount of$25,000 to Plaintiff Wilson and the Incentive
2 Award of$14,000 to Mr. White should be approved.
3 VIII. CONCLUSION
4 For all of the foregoing reasons, Plaintiffs respectfully request that the Court grant this
5 motion for attorneys' fees, costs, and incentive awards.
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Dated: May 31, 2019 STONEBARGER LAW, APC
By: Isl Richard D. Lambert Richard D. Lambert
Class Counsel for Plaintiffs and the Class
23
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARDS
Case 2:12-cv-00568-KJM-DB Document 150-1 Filed 05/31/19 Page 33 of 33
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