AFFIDAVIT OF GARY N. REGER STATE OF TEXAS § § COUNTY OF JEFFERSON §

BEFORE ME, personally appeared GARY N. REGER, of Jefferson County,

Texas, and on his oath swears, states, and testifies as follows:

1. I am over the age of eighteen (18) years of age and competent to make this

Affidavit.

2. I am not disqualified from giving testimony.

3. I have personal knowledge of the matters to which I herein testify.

4. I will testify truthfully.

5. I am licensed to practice law in the state of Texas.

6. Attached hereto and incorporated herein by reference as Exhibit A is my

web page bio. Also attached as part of Exhibit A is a list of class action proceedings in

which I have been class counsel and have become familiar with attorney fee awards in

class actions.

7. I have recent commercial cases in the Beaumont state courts, the Western

District of Texas, the Northern District of Texas, and the Southern District of Texas.

8. The class counsel in this case (Geter) requested that I express an expert

opinion as to whether the hours spent on this case were reasonable and the reasonable

values of the services performed based on the standards of the legal community in which

the attorneys practice. In forming this opinion I applied the factors for determining the

lodestar figure required by Tex. R. Civ. P. 42(i)(1) using the factors specified in Rule

(2)

1.04(b) of the Texas Disciplinary R. Prof. Conduct; to wit:

(a) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;

(b) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;

(c) the fee customarily charged in the locality for similar legal services;

(d) the amount involved and the results obtained;

(e) the time limitations imposed by the client or by the circumstances;

(f) the nature and length of the professional relationship with the client;

(g) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(h) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

9. In forming my opinion I reviewed detailed time records for Tom Kiehnhoff

and DeWayne Layfield attached as Exhibit B. These time records document the services

performed, who performed the services and at what hourly rate, when they were

performed, and how much time the work required.

10. In forming my opinion I also reviewed the additional material listed on

Exhibit C.

(3)

11. In addition, I generally reviewed reported attorney fee cases. I also applied

my own experience. Without limitation, I have personal knowledge of the following

particularly germane fee awards:

a) In 2013 an Oklahoma state court approved a fee award to class counsel based on an hourly rate of $575.00 per hour for Dewayne Layfield, and for lawyers of Mr. Kiehnoff’s experience of $650 per hour. The Oklahoma court applied the standard of “the reasonable value of the services performed based on the legal community in which the attorneys practice.”1

b) In 2004 a Jefferson County (Beaumont), Texas trial court found hourly rates of $500.00 to $775.00 for senior partners to be reasonable in a certified class action.2

12. The result in this case was extraordinary in modern Texas class action

history. The class was certified by the trial court, affirmed by the court of appeals and

review was denied by the Texas Supreme Court. That is a rare victory for class counsel.

13. In my opinion the number of hours of work reported by Tom Kiehnhoff and

DeWayne Layfield were reasonable.

14. In my opinion the reasonable hourly rates for Tom Kiehnhoff and

DeWayne Layfield are $650.00 per hour and $575.00 respectively.

15. Based on my review of the evidence in this case, my general survey, and

my personal knowledge, it is my opinion that the lodestar figure for class counsel in this

case is $812,227.50, based on 861.5 hours for Tom Kiehnhoff at a rate of $650.00 per

hour ($559,975) and 438.7 hours for DeWayne Layfield at a rate of $575.00 per hour

($252,252.50).

16. I also have reviewed the expenses of $249,832.84 incurred by class counsel

in this case. These are itemized in Exhibit D. I find them to be necessary and reasonable.

1 The Stroud case identified on Exhibit A. Adjusted for inflation, this is $940.00 in 2012. 2 Shields v. BridgeStone/Firestone, Inc., No. 170,462, 172nd District Court, Jefferson County, Texas (2004).

Exhibit A

Orgain Bell & Tucker, LLP

Gary Neale Reger Partner since 1981 gnr@obt.com

Gary is listed in Best Lawyers in America in the categories of bankruptcy, banking (litigation, secured transactions) and real estate. He has been selected as a Texas Super Lawyer in business litigation. His experience covers a broad range of commercial work, including commercial arbitrations, commercial litigation, and commercial transactions. Gary has represented both defendants and plaintiffs in major litigated commercial disputes, in the areas of industrial and commercial insurance claims, bankruptcy, class actions, the Uniform Commercial Code, technology, real estate development, banking, usury, oil and gas, estates, fraud, partnership and corporate management, shareholder derivative claims, partnership and corporate dissolution, and other commercial disputes. Gary received his B.B.A. degree from Texas A&M University in 1973 and graduated with honors from the University of Texas School of Law in 1976. At the University of Texas School of Law, he was a member of the Order of the Coif. Gary is a Life Fellow of the Texas Bar Foundation. He served on the board of directors for the Texas Association for Bank Counsel from 1983 until 1987. He has served on the Local Rules Committee for the United States Bankruptcy Court for the Eastern District of Texas. Gary was honored by the Beaumont Foundation of America, which established the $2 million Gary Neale Reger Endowed Scholarship Fund in his honor at Texas A&M’s Mays Business School. The fund provides scholarships for top students majoring in business honors. Gary sits on the board of directors of the Beaumont Family Shelter, Inc., which constructed and operates the Albert E. and Gena Reaud Family Shelter, a hospitality house for the families of patients of local hospitals administered through the Baptist Beaumont Hospital. Gary practices primarily in the firm's office in Beaumont.

I have been appointed as class counsel in the following matters:

o Cause No. 1:99cv0120; Ethan Shaw, et al v. Toshiba America Information Systems, et al.; In the United States District Court for the Eastern District of Texas

o Cause No. A-162,152; Hal LaPray, et a. v. Compaq Computer Corporation; In the 60th Judicial District Court, Jefferson County, Texas

o Cause No. A-164,880; Muzette Alvis, et al v. Hewlett-Packard Company; In the 58th Judicial District Court, Jefferson County, Texas

o Cause No. D-164,939; Michael Albanese, et al v. Compaq Computer Corporation; In the 136th Judicial District Court, Jefferson County, Texas

o Cause No. E-165,336; David Packard, et a. v. eMachines, Inc., et al; In the 172nd Judicial District Court, Jefferson County, Texas

o Case No. CJ-2003-967; Debbie Barrett v. Hewlett Packard Company; In the District Court for Cleveland County, Oklahoma

o Case No. CJ-2003-969; Stephen Grider and Beverly Grider v. Compaq Computer Corporation; In the District Court for Cleveland County, Oklahoma

o Case No. CJ-03-968-L; Kiley Stroud v. eMachines, Inc.; In the District Court of Cleveland

County, Oklahoma o Cause No. 8725; Anderson Brothers Partnership, et al. v. EnerMart Energy Services Trust, et

al; In the 287th Judicial District Court, Parmer County, Texas I also acted as proposed class counsel in Case No. CV 025760; Tammy Collins, et al v. eMachines, Inc., et al; San Joaquin County Superior Court, California, which was made moot before certification by settlement of a national class.

 

 

Exhibit B

Exhibit C

Cause No. 09—00386-CV

INDEX Of GETER DOCUMENTS REVIEWED BY GNR – VOL. 11

1. Brief of Appellee 12/2002

2. Reply Brief of Appellants Gerald Hooks and 9/2003

Lesly K.Hooks

3. Brief of Appellees 10/2003

4. Brief of Appellees State Texas 10/2003

5. Unopposed Motion for Extension of Time to File 10/2003

6. Brief of Appellants

7. Reply Brief of Appellants Jan Lubin, 11/2003

8. Gilberto Villanueva and Michael Palading

9. Brief of Appellants 1/2004

                                                            1 For items with exhibits or attachments, I also reviewed those as well as the described document. 

FARMERS GROUP, INC Plaintiff

§ § § §

IN THE DISTRICT COURT OF

VS. SANDRA GETER

§ § § § § §

JEFFERSON COUNTY, TEXAS 172ND JUDICIAL DISTRICT

10. Brief of Appellants 1/2004

11. Notice /Board Order Pursuant 11/2004

12. Reply Brief of Appellants 4/2004

13. Supplemental Brief of Appellants 6/2004

14. Brief of Appellants 11/2005

15. Unopposed First Motion for Extension of Time to File 2/2006

16. Reply Brief of Appellants

17. Reply Brief of Appellants 3/2006

18. Reply of Brief of Appellants 3/2006

19. Appellants’ Supplemental Brief 4/2007

20. Appellants & Orders

1  

Cause No. 09—00386-CV

INDEX Of GETER DOCUMENTS REVIEWED BY GNR – VOL. 21

1. Hearing on Motion for Class Certification April 2003

2. Motions July 2003

3. Appellants’’ Joint Motion for Extension of Time to File July 2003

4. Appellants’ Brief

5. Original Proceeding August 2003

6. Objection by Sandra Geter to Motion for Consolidation August 2003

7. Original Proceeding August 2003

8. Hearing on Various Motion August 2003

9. Petition for Review August 2003

                                                            1 For items with exhibits or attachments, I also reviewed those as well as the described document. 

FARMERS GROUP, INC Plaintiff

§ § § §

IN THE DISTRICT COURT OF

VS. SANDRA GETER

§ § § § § §

JEFFERSON COUNTY, TEXAS 172ND JUDICIAL DISTRICT

2  

10. Relators’ Reply to Real Party in Interest’s Response to September 2003

11. Petition for Writ of Mandamus

12. Motion to Extend Time to File Response Brief on The December 2004

13. Merits of Respondents Gerald Hooks and Lesly K. Hooks

14. Response Brief on The Merits of Respondents Gerald December 2005

15. Response Brief on The Merits of Respondents Gerald December 2003

16. Response for Review on The Merits of Respondents December 2005

17. Appendix to Response Brief on The Merits of December 2005

18. Motion to Extend Time to File Response Brief on December 2005

19. Motion to Extend Time to File Response Brief on December 2005

20. Appendix to Respondents Brief on The Merits of August 2005

21. Petitioners’ Petition for Review March 2005

22. Order Granting Motion for Class Certification June 2005

23. Motion for Leave to File Supplemental Brief May 2007

24. First Unopposed Motion for Extension of Time to May 2007

25. Petition for Review October 2007

26. Response to Petition for Review January 2008

27. Brief on The Merits of Petitioners April 2008

28. Response to Brief on The Merits of Petitioners May 2008

29. Reply Brief on The Merits of Petitioners July 2008

3  

30. Motion for Consolidation of Pretrial Proceedings

Exhibit D