Attorneys for Plaintiff and the Settlement Class · counsel of record ("Class Counsel") for Plaintiff Kami Brown in the instant action. 2. I submit this declaration, pursuant to Rule

LAW OFFICES OF ZEV B. ZYSMAN A Professional Corporation Zev B. Zysman (176805) [email protected] 15760 Ventura Boulevard, 16th Floor Encino, CA 91436 Telephone: (818) 783-8836 Facsimile: (818) 783-9985

CAPSTONE LAW APC Jordan L. Lurie (130013) [email protected] 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Telephone: (31)) 556-4811 Facsimile: (310) 943-0396

ICAMI BROWN on Behalf of Herself and All Others Similarly Situated,

Plaintiff,

v.

DEFENDER SECURITY COMPANY d/b/a DEFENDER DIRECT, INC. and PROTECT YOUR HOME; and DOES 1 through 100, inclusive,

Defendants

Case No: CV12-07319-CAS (PJW)

CLASS ACTION

DECLARATION OF ZEV B. ZYSMAN FILED IN SUPPORT OF PLAINTIFF'S MOTION FOR AN AWARD OF ATTORNEYS' FEES, EXPENSES AND INCENTIVE AWARD

Date: March 3, 2014 Time: 10:00 a.m. Ctrm: 5 Judge: Honorable Christina A. Snyder

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Attorneys for Plaintiff and the Settlement Class

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case 2:12-cv-07319-CAS-PJW Document 65-2 Filed 01/13/14 Page 1 of 65 Page ID #:806

I, Zev B. Zysman declare:

1. I am an attorney at law duly licensed to practice in the State of California

and the United States District Court for the Central District of California. I am the

principal of the Law Offices of Zev B. Zysman, A Professional Corporation, and am

counsel of record ("Class Counsel") for Plaintiff Kami Brown in the instant action.

2. I submit this declaration, pursuant to Rule 23 of the Federal Rules of

Civil Procedure, in support of my firm's application for an award of attorneys' fees in

connection with services rendered in this case, as well as the reimbursement of

expenses incurred by my firm in connection with this litigation.

3. My firm acted as Co-Lead Class Counsel for Plaintiff in this class action.

I have been involved in this case and have been the primary attorney in charge of this

case since its inception. I was primarily responsible for drafting of the Complaint, and

being involved in all aspects of litigation, investigation and settlement.

4. To date, no objections have been filed with respect to any aspect of the

Settlement or the instant motion.

5. Class Counsel seeks an aggregate award of 30% of the Common Fund as

legal fees for services rendered on a wholly contingent basis as well as

reimbursement of their out-of-pocket litigation expenses reasonably incurred in the

prosecution of this litigation. As discussed in the accompanying Memorandum in

Support of Plaintiff's Motion for an Award of Attorneys' Fees, Expenses and

Incentive Award (the "Fee Motion"), a fee and expense award of 30% of the benefits

achieved for the Settlement Class is well within the range of fees commonly awarded

as a percentage of the recovery in similar class actions, within the Ninth Circuit and

throughout the United States.

6. Below is a schedule of the total hours and billing rates for work

performed on this matter, and the lodestar calculation based on my firm's most

current billing rates. No secretarial, administrative or other staff time (including

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paralegal time) is being billed or requested. The schedule was prepared from

contemporaneous, daily time records regularly prepared and maintained by my firm.

Lodestar - Inception through January 13, 2014

Attorney Number of Rate Lodestar

Hours Zev B. Zysman

775.00 $635.00 Total:

$492,125.00

7. The total number of hours expended on this litigation by my firm is 775

hours. The total lodestar for my firm is $492,125.00.

8. Co-Lead Class Counsel at Capstone Law APC have submitted detailed

information regarding their hours spent and hourly rates in the accompanying

Declaration of Jordan L. Lurie. In total, Class Counsel at Capstone Law APC have

spent 496.5 hours at the rates stated in the Lurie Declaration totaling $237,794.50

9. In sum, the cumulative lodestar for the services performed by all firms

is $729,919.50. Class Counsel spent a total of 1,271.50 attorney hours in the

prosecution of this litigation.

10. As explained in the Fee Motion, a lodestar analysis more than confirms

the reasonableness of Class Counsel's percentage fee request as the requested fee and

expense in the sum of $420,000 actually results in a negative lodestar multiplier.

11. All of the matters undertaken by Class Counsel's firm are class actions.

I have been practicing for almost 19 years. While the use of current hourly rates is

appropriate because it accounts for the time value of money where, as here, Class

Counsel has not been paid contemporaneously for its work on this case, for the

purpose of this Motion, Class Counsel relies on the lower rates in effect in 2012 when

the case was initiated.

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Firm Name

Cozen O'Connor

Loeb & Loeb

Manatt Phelps & Phillips

Sheppard Mullin Richter & Hampton Winston & Strawn

Partner Range Associate Range

up to $880 up to $695

up to $950 up to $550

up to $850 up to $505

up to $715 up to $525

up to $995 up to $670

12. Class Counsel's rate is the same rate established for all cases in 2012.

The hourly rate charged is based, in part, on delay in payment that results from the

firm's contingency-based system of representation, and the skill and experience of

counsel in prosecuting class actions.

13. Based on my experience in litigating class action cases with co-counsel,

my familiarity with the class action practice in Los Angeles and in California, and my

review of rates charged by my class action colleagues, my firm's hourly rates are in

line with the rates prevailing in the community for similar services of lawyers of

reasonable comparable skill and reputation.

14. Further, based on my experience in litigating class action cases against

opposing counsel, my familiarity with the class action practice in Los Angeles and in

California, and my review of rates charged by defense lawyers in class action cases,

my firm's hourly rates are lower than the rates charged by major law firms who serve

as opposing counsel in class action cases. Attached hereto as Exhibit 1 is a true and

correct copy of the relevant sections of a survey of attorneys fees provided by the

National Law Journal in 2009, which includes fee ranges charged by prominent law

firms nationwide. Highlighted are the following firms based or with major presence

in Los Angeles that regularly litigate complex class action cases:

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15. Class Counsel's hourly rate has been accepted and approved in other

class action litigation in state and federal courts. Most recently, in a consumer class

action entitled Sosinov v. RadioShack, Corp., Case No. BC449675, pending in the

Los Angeles Superior Court, Central Civil West, Judge William F. Highberger

specifically approved Class Counsel's hourly rate which is the same as Class Counsel

is seeking here. Attached hereto as Exhibit 2 is a copy of the Final Order Approving

Class Action Settlement and Judgment dated March 27, 2013 by Judge William F.

Highberger.

16. In addition, in a consumer class action entitled Pomerants v. Skechers

U.S.A. Inc., Case No. BC436360, pending in the Los Angles Superior Court, Central

Civil West, Judge John S. Wiley approved Class Counsel's hourly rate which is the

same as Class Counsel is seeking here. Attached hereto as Exhibit 3 is a copy of the

Final Order Approving Class Action Settlement and Judgment dated February 7,

2012 by Judge John S. Wiley.

17. Further, in a consumer class action entitled Konevskya v. Tommy

Bahama Group, et al., Case No. BC424931, pending in the Los Angles Superior

Court, Central Civil West, Judge Jane L. Johnson approved Class Counsel's hourly

rate which is the same as Class Counsel is seeking here. Attached hereto as Exhibits

4 and 5, respectively, are copies of the Final Order Approving Class Action

Settlement and Judgment and Order Awarding Attorneys' Fees, Expenses and

Incentive Award dated December 12, 2011 by Judge Jane L. Johnson.

18. Morever, in a consumer class action entitled Burcham v. Welch Foods,

Inc., Case No. CV-10-01427-AHM, pending in Los Angeles in the Central District of

California, Judge A. Howard Matz approved Class Counsel's hourly rate which is the

same rate as the rate charged here. Attached hereto as Exhibit 6 is a copy of the

Order and Final Judgment dated June 27, 2011 by Judge A. Howard Matz.

19. Further, attached hereto as Exhibit 7 is a copy of a Judgment and Order of

Dismissal dated September 23, 2008 by Judge William F. Fahey in a consumer class

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action entitled Brand v. Simple Tech, Inc., Case No. BC360001, pending in Los

Angeles Superior Court. In that case, Judge Fahey approved Class Counsel's hourly

rate which is similar to the rate charged here.

20. Attached hereto as Exhibit 8 is a sworn statement by a class action

attorney in the matter entitled Lundell v. Dell Inc., Case No. CO5-03970 JW (N.D.

Cal.) evidencing that firm's hourly rates for class litigation in 2006. Those 2006 rates

are consistent with (and even higher than) the rates charged by Class Counsel now in

2013.

21. Class Counsel has extensive experience in complex business litigation

and class actions. Plaintiff's Counsel has successfully served as Class Counsel

prosecuting numerous consumer class actions to Judgment, including Burcham v.

Welch Foods, Inc., Case No. CV-10-01427-AHM, (Central District of California);

Sosinov v. RadioShack, Corp., Case No. BC449675 (Los Angeles Superior Court,

Central Civil West); Pomerants v. Skechers U.S.A. Inc., Case BC436360 (Los

Angeles Superior Court, Central Civil West); Yu v. Microsoft Corp., Case No.

BC316448 (Los Angeles Superior Court, Central Civil West); Zilberman v. Netgear,

Inc., Case No. 1-04-CV-021230 (Santa Clara Superior Court); Satsuta v. The Linksys

Group, Case No. 1-03-CV002896 (Santa Clara Superior Court ); Brand v. Simple

Tech, Inc., Case No. BC360001 (Los Angeles Superior Court); and In Re Wireless

Product Cases, JCCP Case No. 4381 (San Francisco Superior Court).

22. The requested fee is justified for all the reasons set forth in the Fee

Motion. The Court also is requested to take into account that, as Class Counsel know

from personal experience, despite the most vigorous and competent of efforts, success

in contingent class actions is never assured. Lawyers who specialize in contingent

matters live in a world of uncertainty. Unlike the defense bar, whose attorneys are

paid regularly for each hour of service and are reimbursed on a current basis for

expenses incurred, plaintiffs' lawyers normally have no steady flow of income.

Moreover, as demonstrated recently, changes in the law through legislation or judicial

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decree potentially can be catastrophic and can occur on a moment's notice, adversely

impacting pending litigation. This occurs in many hard-fought lawsuits where

because of the discovery of facts unknown when the case commenced, or a significant

change in the law during the pendency of the litigation, highly professional efforts of

members of the plaintiffs' bar produce no result for the class or corporation sued for,

and hence, no fee for counsel.

23. Moreover, Class Counsel's involvement in this case is not at an end.

Class Counsel will also incur additional time in this case through its conclusion,

researching, drafting and preparing the Motion for Final Approval of Settlement, and

attending the hearing on Final Approval of Settlement and Attorneys' Fees, Expenses,

and incentive Award.

24. This firm expended a total of $5,218.80 in un-reimbursed out-of-pocket

costs and expenses in connection with the prosecution of this litigation based on

information provided to me. These expenses are broken down as follows:

SCHEDULE OF COSTS AND EXPENSES

Filing Fees/Service/Messenger $298.55

Copy Charges $325.00

Legal Research $425.50

Mediation Fees $3,333.00

Meals/Travel/Hotel/Transportation Related $510.75

To Mediation

Court Appearance Expenses And Related $260.25

Meetings (parking/mileage)

Postage/FedEx/Telephone/Fax $65.75

TOTAL CASE-RELATED EXPENSES $5,218.80

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25. These expenses are those which are normally charged to paying clients:

filing fees, mediation fees, postage and courier services, computer and database

research, photocopying and facsimile charges; and overnight delivery and messenger

services, long-distance phone calls, and travel for court appearances and settlement

discussions.

26. The following is additional information regarding certain expenses for

which we are seeking reimbursement:

(a) Photocopying: In-house copying is billed at the rate of $.25 per

page. Out-sourced copying is billed at the charged rate.

(b) Faxes are billed at the rate of $1.00 per page.

(c) Online Research: This includes research charges through Lexis

Nexis, Westlaw and PACER. The computerized research charges were warranted in

this matter. It is standard practice for attorneys to use Lexis-Nexis and Westlaw to

assist them in researching legal and factual issues, and the use of such tools creates

efficiency in litigation and saves the Class time and money.

27. The expenses incurred pertaining to this case are reflected in the books

and records of this firm. These books and records are prepared from expense

vouchers and check records and are an accurate record of the expenses incurred based

on information provided to me.

28. In my opinion, an enhancement award of $5,000 from the Common Fund

to the Plaintiff, is justified. Ms. Brown's supporting declaration is submitted

concurrently. Ms. Brown devoted significant time and effort to the successful

prosecution of this case through frequent correspondence with counsel, review of

pleadings and participating in settlement discussions. Without Ms. Brown's

assistance, it would have been difficult if not impossible for Class Counsel to achieve

a favorable settlement for the Class. In addition, Ms. Brown willingly accepted the

risk that she might be personally liable for Defendant's costs if the lawsuit were

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unsuccessful. For these reasons, Class Counsel requests an award of $5,000 for the

Class Representative.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct. Executed this 13th day of January,

2014 at Encino, California.

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/s/ Zev B. Zysman Zev B. Zysman

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EXHIBIT 1


ift ALM 2009 NLJ Billing Survey

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2009 Akin Gump Strauss — Hauer & Feld LLP

Washington. DC

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Natsis LIP 2009 Alston & Bird LIP Atlanta, GA $860 $450 $555

. $205 $385

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$755 $420 $485 . . MU

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LLP

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Memphis, TN

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& Ingersoll, LIP

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PLC Nashville, TN

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King, PUG ........_

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$465 $200 $275 $150 $191 $319 $278 $195 $320

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$500 $250 .

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2009

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LIP

Seattle. WA $775 $310 $445 $210 $300 $474

— $507—

$34-6

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NY

$75 $385 $465 $230 $3111

2009 Dickinson Wright PLLC

Detroit. MI $575 $275 $325 $185

$630 2069 Dickstein Shapiro LLP

- - DC,

Washington, $950 $500 $515 $265 $403 V.;33 $520 $415

2009 Dinsmore & Shohl LLF' Cincinnati,

OH S526 $200 . S295- -- $165 $2134 $345 $286 $200 $340

2009 DLA-Piper US NOW. York.

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$515

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—

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OA $795 $315 - $450

2009

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_

$200 $290 $440

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& Dodge LLP

Pittsburgh, PA

$321 $447 1305

.

$545

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$855

$325

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Washington, DC

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$631 $530 $ 400 7- $520

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WI . __ 2009 Foley Hoag LIP Rosron, MA . _

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l'A

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P.A. Minneapolis, MN .

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i609 LIP,.

Dallas, Tx $115 $350 $4416 $:2-10 $310 $512 —

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Rochester, NY

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--

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2009 VA

2009 1-c-e-Filifier LLP

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Page 7


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2009 Lane Powell Ms S & Seattle. WA

2009

2009—

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. New York.

NY -

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MO, S490 $255 $265

. $180

2009 LeClaldt y an Riclintand, VA

2009

2009

.... - 2009

2009

Leonard, Street and

Deinard s Professional Association

Minneapolis. MN •

-- -----

Lewis and Roca LLP

Lewis, Rice & Fingersh

Phoenix. AZ

St. Louis,

MO

'

— $450 $250 $210 $140

$390

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Corireration

Minneapolis,

• MN _ ..._. Sao Francisco,CA.

MO

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PA

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Mil I IL.

ummi 2

$383 $626 $531

2009 Mcandrews Held 8. Malloy

ehicago. IL $625 $290 --$220

2009 McCarter & English, LIP

Newark. NJ $700 $350 $395 $205 $301 $472 $396 $315 $468

2009

_

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_

$295 $270 $225

$275 - i

200 $110 $250 2009

2009

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Mulvaney & Carpenter,

LIP

- tviorristown.

NJ $500 $295 $250 $145 $185

McGlinchey Stafford New

Orleans, LA 2009 . _ 2009

McKenna Long &

AldrAge LIP Atlanta. GA $775 $350 $470 $220 $284 S471

Friedrich

Michael Hest &

LLF' _ _ Milwaukrie. WI.__

$(320 $235

__.

$305 $190 $2:35 $303 $305 $225 $375

Page 9


ETS=

5375 $7.35 $330 $305 $2:10

1

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, Tennessee

Detroit., Mt - $640 $240 7:609 NItlfer, , Canfield.

Paddock and Stone,

P.L.C. 2009 Montgomery,

Philadelphia, $605 $370

McCracken, Welker & PA

2009 Moore & Van Allen Charlotle. $265

PLLC NC

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Bockius LLP 2009 Morris, Manning A Atlanta. GA $760 $365

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$22 0 $100

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$375

$355

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$200

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SC

Nixon Peabody LIP New York, NY

$405 — $190 $248 $39i- $340 $245 ---$-/-80—

--__

5750 $175

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Page 10


Page 11

tr•

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Los Angeles.

CA 2000

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Nash, Smoak &

Stewart, P.C. 2009 Onick, Herrington & Son

Sutcliffe LLP Francisco. CA.

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DC

S251 $625

$990 $400 — $540 aRT-1 - $395

$190

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2009 Perkins Cole LIP

2009 Phelps Dunbar LLP

2009 Phillips Lytle LLP

2009 Plunkett & Cooney

2009 Polsinelli Shughart PC

2000 FrosicaUer Rose LLP

2009 Quarles & Brady LIP

New York, NY

$820

New $450

Orleans, LA Buffalo, NY $475

Bloomfield Hats, NY Kansas City.

MO New York.

NY Milwaukee. WI

$450 $240

$525 $195 37 $518 $424 $515

$260 $130 $110 $255 $213 $105 $355 —

$416 $150 $235 $340 $250 $230 $335

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$375 $200 $025

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_

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LIP _

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Sedgwick, Moran & Arnold LLP

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Page 13

MO -- Louisville, KY Pot Rand, OR

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S000

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2009 1Shook. Hardy & Bacon Kansas City, MO

2009 Shumaker, Loop & Toledo, OH

Kendrick, Lt.r - 2009 151115 Cununis &Croes Newark. N.1

P.C. 2059 Skadden, Arps, Slate, New York.

Meagher & Flom I.LP NY

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_ 2009 Snell & Wilmer L.L.P. Phoenix, AZ $17t1--

2009 Squire, Sanders & Cleveland.

Dempsey L.L.P. _ OH

2009 Steptoe & Johnson Washington.

LIP DC fleadiny, PA

Kansas City, $080

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$610 $325

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Corporation -

7000 Istinson Morrison Hecker LLP

200-9 Stites & Harbison,

PLLC Tow Sloel Rives I_LP

stfasburuel & Price,

LLP


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LLP Sutherland Asbill &

13reiman LLP

Taft Stettlulus &

Thompson & Knight

Thompson Coburn

LLP TOWNSEND and

TOWNSEND and

CR W Troutman Sanders LLP

Boston, MA

Atlanta, GA

and • Washington ,

C

Dallas, TX $560

$455 Ulmer & Berne LLP

$560

Vedder—P- iice, P.C.

Venable LLP

Vinson & Elkins LLP

Vorys, Sater, Seymour

and Pease LLP

2069 Waller Lansden Dorich

& Davis LIP

Page 14


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5309 — Wiggin and Dana New Haven, $650

$410 -$220

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CT

3_009 Williams Mullen _Ric711._.niorid.

VA •

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DC --2710

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i66-9— 111 d PC Dallas, , $655

$285 $385 $215

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inisten & Strewn LIP

$498 $345

Ljp_BILLP _____

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$372 $638

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Page 15


EXHIBIT 2


11.

SItriCoieG ..; Court ,.

2.7 h.:1Si A .packe. Officer/Clerk

fiy Dep. tify

SUPERIOR CM iRT OF TI IL STATE OF CALIFORNIA

COUNTY OF LOS ANGELES 0 20 13

/0Y1 SOSIN0i, cm Behalf of Herself and I No. 9C449675

314

All Others Similarly Situated, CLASS ACT

Plaintiff, FIN xi. flimi vi , Rox (;

;kcitoNSi•..T1 ■ No

RADIOSILACK CORPORATION., and DOES 1 through 100, inclusive.

Dept. 31)7 . Judge: lion. William F. I lighberger

Date Action Filed: November 19, 2010 Trial Date: Not Set

On March 27, 2013, this Court heard plaintiff' Zoya Sosinov's ("Plaintirr) unopposed

motion for final approval of the class action settlement. This Court reviewed: (a) the motion and •

the supporting papers, including, the Settlement Agreement and Release ("Agreemenri (b) any

objections tiled with or presented to the Court: (c) the parties' responses to any objections: and

id) counsels' arguments. Based on this review and the findings below, the Court tbund good •

cause to grant the motion.

I/

Defendants.

3

4

5

7

8

9

10

11

12

13

14

to

17

19

20

21

14

14;

I /I


FINDINGS:

The Agreement was fair. reasonable. and adequate.

2. The parties adequately performed their obligations under the Agreement.

3. Defendant RadioShack Corporation ("Defendant"), provided notice to Clas ■

Members in compliance with Section 3.3 of the Agreement, due process, and CAL. R. CI. 3.769.

The notice: (i) fully and accurately informed Class Members about the lawsuit and settlement: (ii) )

provided sufficient intOrmation so that Class Members were able to decide whether to accept the

benefits offered, opt-out and pursue their own remedies, or object to the proposed settlement; (iii)

provided procedures for Class Members to file written objections to the proposed settlement, to

appear at the hearing, and to state objections to the proposed settlement: and (iv) provided the

time, date and place of the final fairness hearing. /7

4. An award of S

in attorneys' fees and costs to Plaintiff's ;

Counsel is lair and reasonable in light of the nature of this case. Plaintiff's Counsel's experience

and elThrts in prosecuting this Action, and the benefits obtained for the Class.

An incentive award to Plaintiff Zoya Sosinov of S 2-e-00 5. is lair

and reasonable in light of: (a) Plaintiff's risks (including financial, professional. and emotional ) in

commencing this action as the Class Representative; (h) the time and efThrt spent by Plaintiff in

litigating this action as the Class RepieentaiiN e: and Id Plaintiff's public intere s t s ervi,:e.

IT IS ORDERED TIIAT:

1. (lass Members. The Class Members are defined as:

All persons, who between November 19, 2009 and December 13. 2012, used a credit card to make a purchase at a RadioShack store located in California and whose personal identification information. including, but not limited to, postal address, zip code, e-mail address, and/or telephone number (landline or mobile), were requested and recorded by Defendant.

Binding Effect of Order. I his order applies to Al claims or causes of action

settled under the Agreement. and binds all class members, including those who did not properly

request exclusion under paragraph 6 of the Preliminary Approval of Class Settlement and

Provisional Class Certification Order. This order does not bind persons who filed timely and

5

9

10

II

12

13

14

15

16

IT

IS

19


and C a. PlaintiffsA unseL atto eys . fe •s ord co C

t an'vi t en c Sli

verruled.

preselitative's

d $1-z tive Award filed

by Steven Blue

ObjectimS by Steven

4. Mate in the Objection. The

36 iitt7J (04 veA919a:iche

A

valid Requests for Exclusions. Attached as Exhibit A is a list of persons who properly requested

to be excluded from the settlement.

3. Objection. The Court has considered the Objection to the Settlement and:or

4. Release. Plaintiff and all Class Members who did not properly request exclusion ;

are: (1) deemed to have released and discharged Defendant From all claims arising out of or S

asserted in this action and claims released under the Agreement: and (2) barred and permanently •

enjoined from asserting, instituting, or prosecuting, either directly or indirectly, these claims. 10

5. Class Relief. The Credit ( ...ert...cates provided to Class Members will be activated , 11

and made negotiable according to the timeline set forth in Sections 3.3(b), 3.3(e) and 3.5 of the 12

Agreement. 13

6. Cy Pres. Defendant shall donate all Certificates that can not be reasonahl:, : 14

delivered to (*lass Members fiAlowing attempts at the last known address of' each (lass Member 15

a,:cording to the terms set forth in Section 2.4 of the Agreement.

7. At torney's Fees and Costs. Plaintiffs Counsel t aw aed

s 3 r (Y01) C" in fees and costs. Defendant must pay Plaintiffs Counsel this amount - ;yr)

according to the timeline set ION!) in Section 2.6 of the Agreement.

as 8. Incentive Award. Plaintiff /ova tiosinov is awarded (70_

in incentive award. Defendant must pay Plaintiff this amount according to the timeline set fOrth

in Section 2.7 of the Agreement.

9. Court's Jurisdiction. Pursuant to the parties' request, ('Al.. COM PRO(' 13

■ 664.6. and CAL. R. 3.769(h). the Court N.\ ill retain jurisdiction over this action and the

parties until 1iiiI perrinance th • Agreement

) 6 ' •4 /5 (-O.

ce-c 377/ (')

DATE:1): JUDGE. OF T ;_ SUPER OR COURT

3. WILLIAM E. H I GHBERGER


EXHIBIT 3


0.1;eicz 4 •-• A iY r

Itf0 0 r' / 2012

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CENTRAL CIVIL WEST COURTHOUSE

No. BC436360

CLASS ACTION

[ j FINAL ORDER APPROVING ' LASS ACTION SETTLEMENT AND

JUDGMENT

Date: February 7, 2012 Time: 9:00 a.m. Dept: 311 Judge: Hon. John S. Wiley Jr.

On February 7, 2012, this Court heard plaintiff Ada Pomerants's ("Plaintiff") unopposed

motion for final approval of the class action settlement. This Court reviewed: (a) the motion and

the supporting papers, including, the Settlement Agreement and Release ("Agreement"); (b) any

objections filed with or presented to the Court; (c) the parties' responses to any objections; and

(d) counsels' arguments. Based of this review and the findings below, the Court found good


/ / /

III

/II

[PROPOSED' FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

23

24

25

26

-)7

F,

ADA POMERANTS, on Behalf of Herself and All Others Similarly Situated,

Plaintiff,

V.

SKECHERS U.S.A., INC. and DOES 1 through 100, inclusive,

Defendant.


8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

FINDINGS:

1. The Agreement was fair, reasonable, and adequate.


3. Defendant Skcchers U.S.A., Inc. ("Defendant" or "Skechers"), provided notice to

Class Members in compliance with Section 3.3 of the Agreement, due process, and CAL. R. CT.

3.769. The notice: (i) fully and accurately informed Class Members about the lawsuit and

settlement; (ii) provided sufficient information so that Class Members were able to decide

whether to accept the benefits offered, opt-out and pursue their own remedies, or object to the

proposed settlement; (iii) provided procedures for Class Members to file written objections to the

proposed settlement, to appear at the hearing, and to state objections to the proposed settlement;

and (iv) provided the time, date and place of the final fairness hearing.

i 4. An award of $ 8 751 (x,o. n attorneys' fees and costs to Class Counsel is

fair and reasonable in light of the nature of this case, Class Counsel's experience and efforts in

prosecuting this Action, and the benefits obtained for the Class.

5. An incentive award to Plaintiff Ada Pomerants of $ ;17) G-001 g0 is lair and

reasonable in light of: (a) Plaintiff's risks (including financial, professional, and emotional) in

commencing this action as the Class Representative; (b) the time and effort spent by Plaintiff in

litigating this action as the Class Representative; and (c) Plaintiffs public interest service.

IT IS ORDERED THAT:

1. Class Members. The Class Members are defined as:

All persons who, between April 22, 2009 and November 11, 2011, used a credit card to make a purchase at a Skechers store (including Skechers retail stores, concept stores, factory outlet stores, and warehouse stores) located in California and whose personal identification information, including, but not limited to, postal address, e-mail address, and/or telephone number (landline or mobile), were requested and recorded by Skechers.

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2. Binding Effect of Order. This order applies to all claims or causes of action

settled under the Agreement, and binds all class members, including those who did not properly

request exclusion under paragraph 6 of the Preliminary Approval of Class Settlement and

2.

/PROPOSED' FINAL ORDER APPROVING CLASS ACTION SETI'LEMENT AND JUDGMENT





3. Release. Plaintiff and all Class Members who did not properly request exclusion

are: (1) deemed to have released and discharged Defendant from all claims arising out of or

asserted in this action and claims released under the Agreement; and (2) barred and permanently

enjoined from asserting, instituting, or prosecuting, either directly or indirectly, these claims. The

full terms of the release described in this paragraph are set forth in paragraphs 4.2 and 4.3 of the

Agreement.

4. Class Relief. Defendant will issue a single Merchandise Certificate to each Class

Member who timely registered to receive a Merchandise Certificate as provided in the Agreement

no later than thirty-five (35) calendar days after the Final Settlement Date, which is defined under

Paragraph 1.10 of the Agreement, or after the end of the period for Class Members to register to

receive a Merchandise Certificate, which ever is later.

5. Attorney's Fees and Costs. Class Counsel is awarded $ QV. 0) in fees

and costs. Defendant must pay Class Counsel this amount according to the timeline set forth in

Section 2,3 of the Agreement.

6. Incentive Award. Plaintiff Ada Pomerants is awarded $2 ;00., 00 as an

incentive award. Defendant must pay Plaintiff this amount according to the timeline set forth in

Section 2.4 of the Agreement.

7. Court's Jurisdiction. Pursuant to the parties' request, CAL. CODE Ctv. PROC.

§ 664.6, and CAL. R. CT. 3.769(h), the Court will retain jurisdiction over this action and the

parties until final performance of the Agreement.

/ / I

3.

[PROPOSED] FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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8. Acknowledgement of Satisfaction of Judgment. Plaintiff must file Judicial

Council Form !U-l00 with the Court according to the timeline set forth in Paragraph 4.4 of the

Agreement.

DATED:

u 2.012 ;

JUDGE OF THE SUPERIOR COURT

4. IPROPOSEDI FINAL ORDER APPROVING CLASS ACTION SeIllENIENT AND JuDGmENT

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EXHIBIT 4


V.

No. BC424931 INNA KONEVSKYA, on Behalf of Herself and All Others Similarly Situated,

CLASS ACTION Plaintiff,

FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

Defendants.

TOMMY BAHAMA GROUP, INC., 16 OXFORD INDUSTRIES, INC., and DOES 1

through 100, inclusive, Dept. 308 17 Judge: Hon. Jane L. Johnson

IS Date Action Filed: October 28, 2009 Trial Date: Not Set

ORIGINA I FILED DEC 12 2011

LOS ANGELES SUPERIOR COURT


• COUNTY OF LOS ANGELES

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20 On /8— , 2011, this Court heard plaintiff Irina Koncvskya's ("Plaintiff) motion

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for final approval of the class action settlement. This Court reviewed: (a) the motion and the

supporting papers, including, the Settlement Agreement and Release ("Agreement"); (b) any

objections filed with or presented to the Court (c) the parties' responses to any objections; and

(d) counsels' arguments. Based of this review and the findings below, the Court found good


///

// 1

/1/

[PR0P0SED1 FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT


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FINDINGS:

1. The Agreement was fair, reasonable, and adequate.


3. Defendants Tommy Bahama Group, Inc. and Oxford Industries. Inc.

("Defendants"), provided notice to Class Members in compliance with Section 3.3 of the

Agreement, due process, and CAL. R. CT. 3.769. The notice: (i) fully and accurately informed

Class Members about the lawsuit and settlement; (ii) provided sufficient information so that Class

Members were able to decide whether to accept the benefits offered, opt-out and pursue their own

remedies, or object to the proposed settlement; (iii) provided procedures for

Class Members to file written objections to the proposed settlement, to appear at the hearing, and

to state objections to the proposed settlement; and (iv) provided the time, date and place of the

final fairness hearing.

4. An award of $ ;) S-V/ OZ.O. 0 0 in attorneys' fees and costs to Class •

Counsel is fair and reasonable in light of the nature of this case, Class Counsel's experience and

efforts in prosecuting this Action, and the benefits obtained for the Class.

5. An incentive award to Plaintiff Inna konevslcya of $ 01-/ OD 0 - a° is fair

and reasonable in light of: (a) Plaintiff's risks (including financial, professional, and emotional) in

commencing this action as the Class Representative; (b) the time and effort spent by Plaintiff in

litigating this action as the Class Representative; and (c) Plaintiff's public interest service.

IT IS ORDERED THAT:

1. Class Members. The Class Members are defined as:

All persons, who between October 28, 2008 and September 26, 2011, used a credit card to make a purchase at a Tommy Bahama store located in California and whose personal identification information, including, but not limited to, postal address, e-mail address, and/or telephone number, were requested and recorded by Defendants.

The class does not include any persons who were employed by Tommy Bahama Group, Inc., Oxford Industries, Inc., or Tommy Bahama R&R Holdings Inc. between October 28, 2008 and September 26, 2011.

2.

II FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDCM ENT


2. Binding Effect of Order. This order applies to all claims or causes of action

settled under the Agreement, and binds all class members, including those who did not properly

request exclusion , under paragraph 6 of the Preliminary Approval of Class Settlement and -




3. Release. Plaintiff and all Class Members who did not properly request exclusion

are: (1) deemed to have released and discharged Defendants from all claims arising out of or

asserted in this action and claims released under the Agreement; and (2) barred and permanently .

enjoined from asserting, instituting, or prosecuting, either directly or indirectly, these claims. The '

full terms of the release described in this paragraph are set forth in paragraphs 4.2 and 4.3 of the

Agreement.

4. Class Relief, Defendants will issue a single Merchandise Certificate to each Class

Member who submitted a valid and timely Claim Form as provided in the Agreement no later

than twenty-five (25) calendar days after the Final Settlement date, which is defined under

Paragraph 1.13 of the Agreement:

g . Attorney's Fees and Costs. Class Counsel is awarded S 00 02_0 0

in fees and costs. Defendants must pay Class Counsel this amount according to the timeline set

forth in Section 2.4 of the Agreement.

6. Incentive Award. Plaintiff hma Konevskya is awarded S 00 0 . 0

as an incentive award. Defendants must pay Plaintiff this amount according to the timeline set

forth in Section 2.5 of the Agreement.

7. Court's Jurisdiction. Pursuant to the parties' request, CAL. CODE CIV. PROC.

§ 664.6, and CAL. R. CT. 3.769(h), the Court will retain jurisdiction over this action and the

parties until final performance of the Agreement.

3.

[filniniMMI FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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8. Acknowledgement of Satisfaction of Judgment. Plaintiff must file Judicial

Council Form EJ-100 with the Court according to the timeline set forth in Paragraph 4.4 of the •

Agreemc»t.

DATED: DEC 1:2, nil JANE L. JOHNSON

JUDGE OF THE SUPERIOR COURT

704227 vItSD

1illIMMIND1 FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT


EXHIBIT 5


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ORIGINAL .FILED DEC 122011

7 OS AN GELES SUPEREOR COI.TRT


FOR THE COUNTY OF LOS ANGELES

1NNA KONEVSKYA, on Behalf of Herself and ) Case No: BC42493 I All Others Similarly Situated, )

) CLASS ACTION Plaintiff, )

) v. ) ilkibellhealiC ORDER AWARDING

. ) ATTORNEYS' FEES, EXPENSES AND TOMMY BAHAMA GROUP, INC., OXFORD) INCENTIVE AWARD INDUSTRIES, INC., and DOES 1 through 100,) inclusive, ) Date: - December 5, 2011

) Time: 10:00 a.m. ) Dept: 308 ) Judge: Hon. Jane L. Johnson

Defendants. ) )

t01001100114•) ORDER AWARDING ATTORNEYS FEES, EXPENSES AND INCENTIVE AWARD 8C424931


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Plaintiff's Unopposed Motion for Award of Attorneys' Fees, Expenses and Incentive

Award came on regularly for hearing on December 5, 2011. Having reviewed the papers filed in

connection with the motion and good cause appearing therefore, subject to the entry by the Court

of a final order and judgment approving the settlement in this matter,

IT IS HEREBY ORDERED THAT:

1. Class Counsel is entitled to reasonable attorneys' fees for their work, which the

Court finds to be $92.0; 72241n light of the nature of the case, work performed, hourly rates,

Class Counsel's experience and the benefits obtained for the Class, and to recover $ g,a 7/. I in

reasonable expenses incurred in the Litigation. bn

2. The Plaintiff is entitled to an award of $.?,f) in light of Plaintiffs risks in

commencing this action as the Class Representative, the time and effort spent by Plaintiff in

litigating this action as the Class Representative, and Plaintiff's public interest service.

3. The above payments are to be made by Defendants within the time established in

the Parties' negotiated Settlement Agreement.

4. .1n the event the Court does not grant final approval of the settlement in this action

and enter judgment accordingly, the findings contained herein shall be deemed null and void b

initio.

Dated: - 1 2-- , 2011 JANE L. JOHNSON

HON. JANE L. JOHNSON CALIFORNIA SUPERIOR COURT JUDGE

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(11PMIONINI] ORDER AWARDING ATTORNEYS' FEES, EXPENSES AND INCENTIVE AWARD BC:4249.31


EXHIBIT 6


).!)

CLERK. U.S FILED. DISTRICT COURT I

JUN 2 8 2011

'e 1 of 7 Page ID Case 2:09-cv-05946-AHM-t Document 107 Filed 06/27/11

Jordan L. Lurie (130013) [email protected] Zev B. Zysman (176805) [email protected] Joel E. Elkins (256020) [email protected] WEtsS& LURIE 10940 Wilshire Boulevard, 23r d Floor Los Angeles, CA 90024 Telephone: (310) 208-2800 Facsimile: (310) 209-2348

Attorney's for Plaintiff and The Settlement Class

MARY AM BURCHAM, on Behalf of Herself and All Others Similarly Situated,

Plaintiff,

V.

WELCH FOODS, INC.,

Defendant.

CONSOLIDATED WITH

SEAN P. COURTNEY,

Plaintiff,

V.

WELCH FOODS, INC., et al.,

Defendants.

Case Nos. CV 09-05946 A rvl (AGRx)

consolidated with

SA CV10-01427-AHM (AGRx)

CLASS ACTION

ORDER AND FINAL

Date: June 27, 2011 Time: 10:00 a.m. Ctrm: 14 Judge: Honorable A. Howard Ivlatz

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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Case 2:09-cv-05946-AHM-A" Document 107 Filed 06/27/11 r ie 2 of 7 Page ID #:1853

7) :. ) „ I . 105. 1 1 '

On this 27th day of June, 2011, a hearing having been held before this Court

to determine: (i) whether the terms and conditions of the Stipulation of Settlement

between Plaintiff, on behalf of herself and the class, and Welch Foods, Inc.

("Welch's), dated March 10, 2011 (the "Stipulation") are fair, reasonable and

adequate for the settlement of all claims asserted by the Class members against

Welch's and the Released Parties in the Litigation now pending before this Court

under the above caption; and (ii) whether judgment should be entered dismissing

the Litigation on the merits and with prejudice as to all Class Members who have

not requested exclusion therefrom, and the Plaintiff and all Class Members shall he

forever barred from bringing or prosecuting, in any capacity, any action or

proceeding that involves or asserts any of the Released Claims against any of the

Released Parties.

And it appearing that a notice of hearing substantially in the form approved

by the Court was provided to all persons reasonably identifiable;

And the Court, having considered all matters submitted to it at the hearing

and otherwise having determined the fairness and reasonableness of the proposed

Settlement of the claims of the Class Members against Welch's and the Released

Parties;

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Settlement is approved as fair, reasonable and adequate, and in the

best interests of the Class Members. The parties to the Settlement are directed to

consummate the Settlement in accordance with the terms and provisions of the

Amended Stipulation. Pursuant to Federal Rules of Civil procedure 23(b)(3), the

Class consists of all persons who purchased Welch's 100% Juice White Grape

Pomegranate flavored 3 Juice blend from concentrate with added ingredients (the

"WGP Product - ) during the period from July I, 2007 through the date of this

judgment. Excluded from the Class are Welch's, officers and directors of Welch's

and its parent, subsidiaries and affiliates, and the legal representatives, heirs,

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Case 2:09-cv-05946-AHI -3IR Document 107 Filed 06/27/1 'age 3 of 7 Page ID #:1859

2.1.19.0v.05 94c, _AHM - AGR Doct:mr!n; '105 - 1 Filed 0/7:02/1 1 of 7 Pa:) ,,,

1 successors or assigns of any such excluded party. Also excluded from the Class arc

the persons and entities who timely file a valid request for exclusion from the

3 IClass.

2. The Court finds that the Class meets all requirements of Federal Rules

of Civil Procedure 23(a) and (b)(3) for certification of the class claims, including:

(a) numerosity; (b) commonality; (c) typicality; (d) adequacy of the Lead Plaintiff

and Class Counsel; (e) predominance of common questions of fact and law among

the Class; and (f) superiority.

3. Having considered the factors set forth in Rule 23(g)(1) of the Federal

Rules of Civil Procedure, the Court finds that Class Counsel have fairly and

adequately represented the Class for purposes of entering into and implementing.

the Settlement, and thus, hereby appoint Class Counsel as counsel to represent the

Class Members.

4. The complaints in the above-captioned consolidated action, currently

pending before this Court, are hereby dismissed without costs and with•prejudice in

full and final discharge of any and all claims or obligations that were or could have

been asserted in the Litigation, as against Welch's and all Released Parties.

5. No persons submitted timely and valid requests for exclusions

("Opt-Outs").

6. The Court has received and considered the filed objection of plaintiffs

Courtney and Rojas to the Settlement and hereby overrules the objection for the

reasons set forth by the parties in their Responses to the objection. The Court has

considered all objections filed up until the date of the fairness hearing, whether

timely or untimely postmarked, and whether or not separately identified in the

moving papers. The Court overrules all objections, finding that they do not alter

the Court's finding that the Settlement Agreement is fair and reasonable.

7. "Released Claims" means any and all claims, actions and causes of

action in law or equity, suits, obligations, debts, demands, agreements, promises,

Cast ,

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Case 2:09-cv-05946-AHM-ft Document 107 Filed 06%27/11 • le 4 of 7 Page ID #:1860

2:09-r.v-05946-AI-IM-AGR ;Doct:r.) , nt 105-1 Filed 05/22/1 1 of 7 Parp :7) ti:1852

warranties, liabilities, controversies, damages, losses, attorneys' fees, costs or

expenses or any kind whatsoever, whether based on common law or on any federal

or state statute, rule, regulation, or other law or right of action, foreseen or

unforeseen, natural or unnatural, known or unknown, accrued or not accrued,

suspected or unsuspected, fixed or contingent, and whether or not concealed or

hidden, with the exception of claims for personal injury, that are based upon, or arc

related to, arise from or are connected with the claims, or the factual bases for the

claims, asserted in the Litigation, or any facts, circumstances, statements,

omissions, events or other matters raised or referred to in the pleadings in the

Litigation which could have been raised against W'elch's and any of the Released

Parties by the Lead Plaintiffs or any Class Member.

8. "Released Parties" means Welch Foods, Inc.; its officers, directors,

employees, agents, assigns, as well as its retail, wholesale or club store distributors,

as well as the National Grape Cooperative, and its officers, directors, employees,

agents, assigns, and each of its member growers, and each of their respective

employees, agents or assigns.

9. Class Members, the successors and assigns of any of them, and anyone

claiming through or on behalf of them, are hereby permanently enjoined and barred

from instituting, commencing or prosecuting, either directly or in any other

capacity, any Released Claim against any of the Released Parties.

10. The Released Claims are hereby ordered as compromised, settled,

released, discharged and dismissed as to each of the Released Parties on the merits

and with prejudice by virtue of the proceedings herein and this Judgment.

11. The Released Parties are hereby permanently enjoined and barred

from instituting, commencing or prosecuting, either directly or in any other

capacity, any claim arising from or out of the matters giving rise to the Litigation

against the Lead Plaintiff, Class Members or their attorneys.

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Case 2:09-cv-05946-AHM-1 Document 107 Filed 06127/11 le 5 of 7 Pace ID #:1861

105-1 Filed 3kii22:11 4:1853

12. The Released Parties' claims, arising out of the matters giving rise to

this Litigation, if any, against the Lead Plaintiff, Class Members or their attorneys,

are hereby comprised, settled, released, discharged and dismissed on the merits and

with prejudice by virtue of the proceedings herein and this Judgment.

13. Neither the Stipulation, nor any of its terms and provisions, nor any of

the negotiations or proceedings connected with it, nor any of the documents or

statements referred to therein shall be:

a. Offered in evidence as proof of liability or a presumption,

concession or an admission by any of the Released Parties of the truth of any fact

alleged or the validity of any claim that has been, could have been or in the future

might be asserted in the Complaint, or otherwise against the Released Parties, or of

any purported liability, fault, wrongdoing dr otherwise of the Released Parties: or

b. Offered or received in evidence as proof of a presumption,

concession or an admission of any purported liability, wrongdoing, fault,

misrepresentation or omission in any statement, document, report or financial

statement heretofore or hereafter issued, filed, approved or made by any of the

Released Parties or otherwise referred to for any other reason, other than for the

purpose of and in such proceeding as may be necessary for construing terminating

or enforcing the Stipulation; or

c. Construed as a concession or an admission that the Lead

Plaintiff or the Class Members have suffered any damage; or

d. Construed as or received in evidence as an admission,

concession or presumption against the Lead Plaintiff or the Class Members or any

of them, that any of their claims are without merit.

14. Exclusive jurisdiction is hereby retained over the parties and the C:iass

Members for all matters relating to the Litigation, including.the administration.

interpretation, effectuation or enforcement of the Stipulation and this Judgment.

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Case 2:09-cv-05946-AHMI -', Document 107 Filed 06/27111 -pe 6 of 7 Page ID #:1862

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D(A:;:ti..:nt 105-1 F ii C6122/11 #:1854

15. The Court has considered the submissions by the parties and all other

relevant factors involving the prosecution of claims on behalf of the Class. Class

Counsel initiated the Litigation on behalf of the Lead Plaintiff and acted to protect

the Class. Their efforts have produced the Stipulation entered into in good faith

that provides a fair, reasonable, adequate and certain result for the Class. Class

Counsel is entitled to reasonable attorneys' fees for their work, which the Court

finds to be 4239 EVA and to recover $.14 3 jalin expenses incurred in the —r Litigation. The Lead Plaintiff is entitled to an incentive award of $ ..;50 (2 00 ,

16. The finality of this Judgment shall not be affected in any manner by

rulings the Court may make on Lead Counsel's application for an award of

attorneys fees and reimbursement of expenses.

17. The Court hereby finds that the notice described herein provided the

best notice practicable under the circumstances, and fully satisfied the requirements

of Federal Rules of Civil Procedure 23, the requirements of due process, 28 U.S.C.

Section 1715, and any other applicable law. Said notice was reasonably calculated

to reach actual, potential and likely Class Members, and to direct them to resources

informing them of the benefits of the Settlement, the right to exclude themselves

from the Class, and the consequences of doing so or not doing so. There having

been no timely Opt-Outs submitted, all Settlement Class Members are bound by

this Judgment and are eligible to receive cash refund(s) or a replacement product

coupon as provided to Class Members by the terms of the Stipulation but may not

pursue their own individual remedies against Defendant relating to any of the

Released Claims against any of the Released Parties.

18. Without affecting the finality of this Judgment, the Court reserves

jurisdiction over the implementation, administration and enforcement of this

Judgment and the Stipulation, and all matters ancillary thereto.

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FrOrio r a United Sta

wa • tz s District Judge

Case 2:09-cv-05946-AHM- Document 107 Filed 06127/11 ge 7 of 7 Page ID #:1863

Dcy,;:ilweot 105-1 Filed 05/22;1'. - 17:1655

19. The Court finding that no reason exists for delay in ordering the fini ,.;

judgment pursuant to Federal Rule of Civil Procedure 54(b), the clerk is hereby

directed to enter this Judgment forthwith.

20. The parties are hereby authorized without needing further approval

from the Court, to agree to and adopt such modifications and expansions of, the

Stipulation, including without limitation, the forms to be used in the claims

process, which are consistent with this Judgment and do not limit the right of Class

Members under the Stipulation.

21. Defined terms herein are used as defined in the Stipulation between

Lead Plaintiff, on behalf of herself and the Class and Welch's.

22. In the event this Judgment does not become final, it shall be rendered

null and void and shall be vacated.

Dated:

Respectfully submitted,

WEISS & LURIE Jordan L. Lurie Zev B. Zysman Joel E. Elkins

Is/Jordan I... Lurie Jordan L. Lurie

10940 Wilshire Boulevard, 23 Floor Los Angeles, CA 90024 Telephone: (310) 208-2800 Facsimile: (310) 209-2348

Attorneys for Plaintiff and the Settlement Class

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EXHIBIT 7


FILED se \ fool WINDO\N

LOS ANGELES SUPER ■ OR CO UR I-

SEP 2 3 ZOOS

JOHN/A. GLA9,,1(E, gLERK

gra. S.kl

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SUPERIOR COURT FOR THE STATE OF CALIFORNIA

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FOR THE COUNTY OF LOS ANGELES

BORIS BRAND, on Behalf of Himself, and All ) Others Similarly Situated, )

) ) ) ) ). ) ) ) ) )

)

Plaintiff,

VS.

SIMPLE TECH, NC., and DOES 1-100, inclusive,

Defendants.

CASE NO.: BC360001

CLASS ACTION

frRePOSEIN JUDGMENT AND ORDER OF DISMISSAL

Lf. 66

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[PROPOSED1 JUDGMENT AND ORDER OF DISMISSAL

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This matter came on for hearing on September 4, 2008, on a motion for final class

certification and final approval of the parties' proposed class action settlement, which is set forth in

the Settlement Agreement and Release ("Agreement"). The Court has carefully considered the

Agreement, the record in the above-captioned action (the "Action"), the arguments, evidence and

authorities of counsel, including those submitted or introduced at the hearing, and all oral andicr

written objections and comments received regarding the proposed settlement. Good cause

appearing, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

I. The Court, for purposes of this Judgment, adopts the terms and definitions set forth

in the Agreement.

2. The Court has jurisdiction over the subject matter of the Action, the Class

Representative, the Settlement Class Members, and Defendant STEC Inc., ("STEC") which was

formerly known as SimpleTech, Inc.

3. The Court finds that the notice to the Settlement Class of the pendency of the Action

and of the proposed.settlement, disseminated via e-mailed notice (to Class Members for whom

STEC has an e-mail address and who did not indicate that they did not wish to receive

communications from STEC), published notice and posting of the notice on a website maintained

by STEC, as provided by the Agreement and by an Order of this Court, was fully implemented.

4. The Court finds that the notice as ordered and implemented was reasonably

calculated under the circumstances to apprise the Settlement Class Members of the pendency of this I

Action; all material elements of the proposed settlement; and their opportunity (a) to exclude

themselves from the proposed settlement; (b) to object to or comment on the settlement and/or

Class Counsel's fees and expenses, and the payment of incentive fees, arid to appear at the Final

Hearing; (a) to consult and/or retain an attorney of their choice at their own expense; and/or (d) to

seek to intervene in the Action. The notice was reasonable and the best notice practicable under the

circumstances; was due, adequate and sufficient notice to all Settlement Class Members; and

complied with the laws of the State of California, the California Code of Civil Procedure, the

California Rules of Court, due process, and any other applicable statutes or rules. A full opportunity

has been afforded to the members of the Settlement Class to participate at the Final Hearin, arid all

[PROPOSED) JUDGMENT AND ORDER OF DISMISSAL


members of the Settlement Class and other persons wishing to be heard have been heard.

Accordingly, the Court determines that all members of the Settlement Class are bound by this •

Judgment.

5. On May 30, 2008, this Court conditionally certified the following Settlement Class:

All persons or entities in the United States who purchased a Covered Simple Tech Hard Disk Drive from October 6, 2002 through February 9, 2007, who resided in the United States at the time of purchase, purchased the Covered Simple Tech Hard Disk Drive at a location within the United States, purchased the Covered Simple Tech Hard Disk Drive new (i.e., not second hand) from an entity that regularly sells/sold such devices or items, and did not purchase the Covered Simple Tech Hard Disk Drive for resale to others.

6. The Court earlier appointed Boris Brand as Class Representative of thc Settlement

Class. The Court appointed Jordan L. Lurie and Zev B. Zysman of the law firm, Weiss & Lurie, as

Class Counsel.

7. California Code of Civil Procedure section 382 provides for class certification when

there is an ascertainable class and a well-defined community of interest among class members. The

Settlement Class continues to meet this Standard for class certification,

8. More specifically, the Court finds for the purposes of settlement that: (a) the

Settlement Class is ascertainable; (b) the members of the Settlement Class are so numerous tha;

joinder would be impractical; (c) there is a community of interest among the members of the

Settlement Class; (d) there are questions of law and fact that are common to the Settlement Class

and those common questions predominate over individual questions; (c) the claims of the Class

Representative are typical of the claims of absent members of the Settlement Class; (I) the Class

Representative and Class Counsel have arid will fairly and adequately represent the interests of the

absent members of the Settlement Class; and (g) class treatment is superior to any alternative means

of resolving this matter.

9. Class certification is therefore an appropriate method for protecting the interests

the Class and resolving the common issues of fact and law arising out of STEC's alleged vioatims

of California law. Accordingly, pursuant to California Code of Civil Procedure section 3S2, t'ite

Court hereby makes final its earlier conditional certification of the Settlement Class for settlement

(PROPOSED) JUDGMENT AND ORDER OF DISMISSAL

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purposes only, and confirms the appointment of the Class Representative and Class Counsel to

represent the Settlement Class, as set forth above.

10. The Court grants final approval of the settlement set forth in the Agreement and

finds that it is fair, reasonable, adequate, and in the best interests of the Settlement Class as a whok'.

The settlement shall be consummated in accordance with the terms and conditions of the

Agreement,

11. The Court adjudges that the payment of attorneys' fees, costs and expenses in the

total amount of $360,134 to Class Counsel is fair, reasonable and adequate, and that amount shall

be paid to Class Counsel according to the terms of the Agreement. The Court further finds that an

incentive award of $2,000 to the Class Representative is fair, reasonable and adequate, and that said

payment shall be paid to Class Counsel for distribution to the Class Representative according to the

terms of the Agreement.

12. No persons made timely and valid requests for exclusion from the Settlement - Class

14 or filed any objections to the settlement and/or Class Counsel's attorneys' fees, and/or incentive

15 award.

16 13. As of the Effective Date, the Class Representative and all Settlement Class Me:-.-5c

17• shall be forever barred from bringing or prosecuting, in any capacity, any action or proceeding that

18 involves or asserts any of the Released Claims against any Released Party and shall conclusively be

19 deemed to have released and forever discharged the Released Parties from all Released Ciaims.

20 14. All Settlement Class Members shall, as of the Effective Date, conclusively be

21 deemed to have acknowledged that the Released Claims may include claims, rights, demands,

22 causes of action, liabilities, or suits that are riot known or suspected to exist as of the Effective Date

23 and shall have released all Released Claims, against the Released Parties. "Released Claims" do not

encompass claims for persona) injury and claims involving product defects unrelated to data storage

capacity of the Covered Simple Tech Hard Disk Drive Products. Further, as of the Effective Date

all Settlement Class Members shall be deemed to have waived any and all protections, rights and

benefits of California Civil Code § 1542 and any comparable statutory or common law provision of

28 any other jurisdiction.

[PROPOSED] JUDGMENT AND ORDER OF DISMISSAL

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15. The benefits and payments described in the Agreement are the only consideration,

2 fees, and expenses STEC or the Released Parties shall be obligated to give to the Class

3 Representative, Settlement Class Members, and Class Counsel in connection with the Agreement

and the payment of attorneys' fees and expenses and incentive award.

5 16. The Action and all claims asserted in the Action are dismissed on the merits and with

prejudice as to the Class Representative and all Settlement Class Members. Notwithstanding the

7 dismissal of the Action, STEC shall not claim and may not be awarded any costs, attorneys' fees, or

8 expenses.

9 17. The Agreement and this Judgment are not admissions of liability or fault by STEC or

10 the Released Parties, or a finding of the validity of any claims in the Action or of any wrongdoing

11 or violation of law by STEC or the Released Parties. The Agreement is not a concession by the

12 Parties and to the extent permitted by law, neither this Judgment, nor any of its terms or provisions,

13 nor any of the negotiations or proceedings connected with it, shall be offered as evidence or

14 received in evidence in any pending or future civil, criminal, or administrative action or proceeding

15 to establish any liability of, or admission by STEC, the Released Parties, or any of them.

16 Notwithstanding the foregoing, nothing in this Judgment shall be interpreted to prohibit the :Ise of

17 this Judgment in a proceeding to consummate or enforce the Agreement or Judgment, or to defend

18 against the assertion of Released Claims in any other proceeding, or as otherwise required by law.

19 18. The Court reserves exclusive and continuing jurisdiction over the Action, the Class

20 Representative, the Settlement Class Members, and STEC for the purposes of supervising the

21 implementation, enforcement, construction, and interpretation of the Agreement and this ludgment

22 and Order of Dismissal.

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24 Dated: 0. '3, 2008

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Hon rab e William F. Fah Judge of the Superior Cort of California County of Los Angeles

[PROPOSED' JUDGMENT AND ORDER OF DISMISSAL

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4


EXHIBIT 8


Jonathan D. SeIbin (SBN 170222) [email protected]

H. John Gutierrez (SBN 235406) higutierrez©Ichb.00m

LIEFF, CABRASER, HEIMANN & BERNSTEIN LLP 275 Battery Street, 30th Floor San Francisco, California 94111-3336 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

Attorneys for Plaintiffs

UNITT-.D STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

Q

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11 DON C. LLTNDELL and GILLIAN

12 ROBINSON, individually and on behalf of all others similarly situated,

13 Plaintiffs,

14 '

IS DELL, INC.

16 Defendant.

17

Case No. CO5-03970 1W

REPLY DECLARATION OF JONATHAN D. SELBEN LN SUPPORT OF CLASS COUNSEL'S MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS

I, JONATHAN D. SELBIN, declare as follows:

I. I am a member of the law firm of Lieff, Cabraser, Heimann & Bernstein,

LLP ("LCHB""), counsel of record for Plaintiffs in this matter. I am a member ir. good standing

of the bars of the States of California and New York, and the bar of the District of Co; t/ITia-

respectfully submit this declaration in support of Class counsel's motion for an award of

attorneys' fees and costs. I have personal ialowledge of the facts set forth in this declarattor., and

could testify competently to them if called upon to do so.

2. A true and correct summary of LCHB 's lodestar by personnel updated

through November 27,2006 is attached hereto as Ex. A. The L.C:r133 lodestar detail Class counsel

are providing the Court for in camera review are true and correct records of the. detailed time

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5771166.1 - 1 - RO"..X DECLARATION OF JONA.TH/C: SE:-Bri4


expended by LCHB attorneys and stain this matter, without any fee-related time included, and ;

reflects time reported in this matter in the same manner as detailedin my prior declaration, 1; i 1.

3. A true and correct summary of LCI-TB's costs by item updated through

November 27, 2006 is attached hereto as Ex. B. This amount is less than that previously re:por:ed

due to an accounting error.

4. •Attached hereto as Ex. C is a chart setting forth a summary of the lodestar

and costs by firm updated through Noveariber 27, 2006, based upon information found in Class

counsel's reply declarations submitted herewith. I am informed and believe that total hours snent

on this matter collectively by Class counsel through November 27, 2006, not including any tirne

spent on fee issues, is 2,728.8 hours, for a total lodestar at current billable rates of S I ,097, 1 45 .5(.3.

I am informed and believe that total costs expended collectively by Class counsel th.rotigh

November 27, 2006, not including any expenses spent on fee issues, is S141,867.09. I am

ir.forrried and believe that only those costs that qualify as reimbursable under in re

Tech. Sec. Litig., 913 F.Supp. 1362, 1366 (N.D. Cal.. 1996), have been included in this total.

5. In the two Weeks since my prior declaration, and through November 22,

2006, Class counsel have responded to and assisted an additional 205 Class members.

6. Following preliminary approval of the Settlement. Class counsel wcr::

contacted by a number of Class members who reported a variety of problems with obtaining relief

under the Settlement. There were reports that Dell's service technicians were denying die

existence of the Settlement, misinforming Class members about its terms, and attemptinc . to

charge Class members for various provisions of the warranty program that were tc be provided

for free. Class counsel followed up on each such instance, and while Dell corrected each such

problem, but-for Class counsel's diligence those Class members would not have obtained the

relief to which they were entitled. Class counsel will continue to monitor and work on steel:

problems as they arise during the life of the Settlement.

7. I am a member of my Erm's Executive Committee, which periodically

updates LCHB's billing rates. The last time such rates were updated was 2005. The updates are

based upon publicly available market survey data, cases in which courts have approved billing

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P.M'LY DECLARATION OF JONATHAN D. SELBM 577866.1


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rates of our firm and comparable class action firms in class litigation, and the rates that are

negotiated and paid by our lone paying hourly client, Merrill Lynch Mutual Funds.

8. Earlier this year in Kan, et al..v. Toshiba America Information Systems

4 Inc., Case No. 3C327273 (Los Angeles County Superior Court), Judge Elias of the Los Angeles

.5 County Superior Court approved a fee and cost award of $4.45 million, a multiplier of 3.38 on

6 class counsel's time. That case settled shortly after a CLRA notice letter was sent by Class

7 counsel on behalf of their clients.

8 9. LCHB s rates Were recently approved by Judge Chaney of the Los Angeles

9 Superior Court in Dolgin v. Health Net of California, Case No. BC 263211 (Los Angeles County

10 Superior Court). In that case, defendant challenged both the amount of hours Class counsel

11 expended and the hourly rates charged by LCHB. A true and correct copy of Judge Chaney 's

1" order of March 27, 2006 is attached hereto as Ex. D. •

13 .10. LCHB' s 2004 rates were approved by judge Jenkins of this Court, in

.14 Frank v.•Linited Airlines, Inc., Case No. C 92 0692 MJJ (N.D. Cal.). A true and correct copy of

Judge Jenkins's order of January 16, 2004 is attached hereto. as Ex. E.

16 11. During the mediation in this case, Dell produced its wan-anty claims data

17. for the 5150. Class counsel's expert analyzed that data in the same manner that the data was

18 analyzed in Oneil. Because the data was produced subject to the mediation privilege, and because

19 Dell will not eget to waive that confidentiality even though Class counsel would have been

2Ci entitled to obtain that information via formal discovery, Class counsel cannot inform the Court as

i! to the value of the Settlement using the Oneil analysis. However, Class counsel can repon that it

niort thth-adecitiately SUplibrt -SClatt dditiiSerS .fe r641.160-..

12: While it is true that a number of attorneys, particularly at LCHB, billed

some amount of time to this matter, the overwhelming majority of time billed to this mutter was

"5 billed by a total of five lawyers, two from LCHB (myself and John Gutierrez), and one each from

"6 the other three firms. As demonstrated in Exhibit •A hereto, the largest single amount of time was

devoted by Jo Ein Gutierrez, whose time accounts for 32% of the total.

28 I declare under penalty of pcjury under the laws of the State of California and the

577866.1 - 3 - REPLY DECLARATION OF JONATHAN D. SF.LE


United States that the foregoing is true and correct.

2 Executed thisZrfay of No vern York., New York.

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Aidt.lor \D. SELBIN 5

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577866.1 - 4 - REPLY DECLARATION OF JONATHAN a SELSIN


LIEF: CABRASER HEIMANN & BERNSTEIN, LLP

Report crantod on 11/271200E 06:00:57 PM From

inception

To 27-N0v-06

Case Number. 3118 DELL IN SPIRO N

PARTNER

NAME HOURS . RATE . TOTAL

ELIZABETH CABRASER ' 0.20 750.00 150.00 WILLIAM BERNSTEIN 40.90 750.00 30,675.00

JONATHAN SELBIN 267.70 550.00 147.23503

KATHRYN BARNETT 0.20 550.00 110.00

LORI ANDRUS 2.60 425.00 1.105.00

'...ISA LEEBOVE 2.20 475.00 1,045.00

313.80 180,323.00

ASSOMATE

NAME HOURS RATE TOTAL

KRSTEN _ANAr 4.50 . 340.00 1,530.00

henry Jonn Gutlerrez 861.10 375.09 322,91250

tteis.6o

324.44230

LAW LERK


ANA3ELLE BOLANOS 9.70 115.00 1,11539

9.70 1,11530

PARALEGAL

NAME HOURS. RATE TOTAL

' MARIA coRTa 72.50 115.00 8,33750

MATTHEW PUSHINSKY 4.10 115.00 471.50

ADELINA AdUNA 13630 155.00 21.15750

RICHARD ANTHONY 116.40 180.00 20,952.90

NATHANIEL GARRE.TT 6,30 230.00 1,449.00

CHAD HARTZ 9.10 90.00 . 1 1.729.00

.ALISON HONG 21.00 155.00 3.255.00

GREGORY LEWIS 1. 30 .190.00 304.00

MAJOR MUGRAGE 2.70 180.O0 486.00

DANIEL NEWHALL 43.30 1 90.00 8,227.00

SALLY NGUYEN 57.20 1 16.00 6,578.00

DARIN RAHMAN 0.50 1 55.00 77.50

DANIEL REID 1.00 1 90.00 100.00

472.20 73214.00

OTHER


VVEND1' DOLL. 0.30 170.00 51.00


RENEE 1AUKHER..11 0.20 180 09 38.00

OHR1S PARISO 14.20 205.00 2.911.00

DANIELLE HALE 4.09 215.00 860.00

RALPH HUGO 29.20 205.09 5,985.0C

47.90 9 .8.44.0D

CASE TOTALS 1,709.20 58%936.00


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CA.LFORNIA

SAN JOSE DIVISION

Don.C. Lundell and Gillian Robinson, NO. C 05-03970 JW individually and on behalf of all other similarly situated, • ORDER AWARDING CLASS COUNSEL

Plaintiffs, ATTORNEYS' FEES AND COSTS;

DENYING DEFENDANT'S MOTION TO STRIKE NEW AND IMPROPER EVIDENCE

Defend:alt. I .

The parties in this class action have reached a settlement that provides for reimbursement of

expenses the class members have incurred to repair the alleged defects of the Dell Inspiron 5150

laptop computer and for a new, one-year extended warranty that covers the alleged defects on

computers already several years old Despite agreement on the terms of the settlement, the parties

have been unable to agree on the amount of attorneys' fees that should be awarded to Plaintiffs'

counsel ("Class Counsel"). In JAMS mediation, Class Counsel agreed to not seek more than 33.3

million in fees and Costs, and Defendants agreed not to oppose a fee application of S1.3 million.

Both sides also agreed that neither would appeal an award of between $1.3 million and 33.3 million.

Presently before the Court is Class Counsel's Motion for an Award.of Attorneys' Fees and .

Costs. (Dcx.--1:et Item No. 53.) Class Counsel submit that., through November 2'7, 2006, they have

spent a total of 2,728.8 hours on this ease and that this time multiplied by reasonable hourly rates

17

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results in a base lodestar of $1,097,345.50.' (5m Reply Declaration of Jonathan D. Selbin, "Seibin

2 Decl.," Docket Item No. 60, 1 4, Ex. C.) In addition, Class Counsel submit that they have incurred

costs in the aminnt of $141,867.09. (Selbin Decl. 14.) Class Counsel contends that the Court

should apply a risk multiplier to the base lodestar to reward them for winning a contingency case. In

total, Class Counsel seeks $3.3 million in fees and costs.

After reviewing the billing records, submitted in camera, the Court finds that a lodestar of

$1,097,345.50 is reasonable. = In consumer remedies cases, courts have discretion to increase or

8 decrease the lodestar amount based on the nature of the litigation, the difficulty of the issues, the

9 contingent risk presented, and other circumstances in the case: at..e Graciano v. Robinson Ford

10 Sales. Inc..144 Cal. App. 4th 140, 160-61 (2006); L.talao v. Benef6al California. Inc. 82 Cal. App.

11 4th 19, 26 (2000). In this case, the Court increases the lodestar amount by $602,654.50 to

12 compensate Class Counsel for the contingencies that were present

1 Accordingly, the Court awards Class Counsel $1.7 million in attorneys' fees. Class Counsel

14 is also entitled to recover costs of S141.867.0.9. ateBcaslevv. Wells1L_Irea_Flank, 235 Cal. App. 3d

• 15 1407, 1421-22 (1991). /

16 bated: December 6, 2006 D

17 JAWS WARE lidded Stares District J:ticige

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This lodestar represents the total amount sought by the four firms that have been involved in this case. Lieff, Cabraser, Heimann & Bernstein LLP seeks $588,936.00 in fees for 1709.20 hours; Kiesel, Boucher & Larson LLP seeks $236,423.25 in fees for 372.45 hours; Malesovas & .Man‘LB.se.elr,s,$1.62,168..75, tutees. for 331.65 hours; Fee, 'Smith, Sharp & Vitullo LLP seeks $109,817.50 in fees for 315.5 hou - • r. .

,A --t 2 Defendant objects to the submission of billing records for in camera review and to the evidence that Class Counsel has attached to its reply brief. am Defendant's Mo tion to S:rike New

25 and improper Evidence, Docket Item No. 70.) Defendant, however, has indicated that it would not oppose a fee application that is larger than the. amount of the base lodestar here. In light of this

26 admission, the Court finds that Defendant has not been prejudiced by in camera review of the billing records and by Class Counsel's late submission of further evidence in support of their motion for

27 attorneys' fees. Accordingly, Defendant's Motion to Strike is DENMD.

28 2.


Documents

Attorneys for Plaintiff and the Settlement Class · counsel of record ("Class Counsel") for Plaintiff Kami Brown in the instant action. 2. I submit this declaration, pursuant to Rule