KAZEROUNI LAW GROUP, APC...MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA 1 2 3 Jason A. Ibey, Esq. (SBN: 284607) 4 5 Costa Mesa, CA 92626 6

NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA

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KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (SBN: 249203) [email protected] Jason A. Ibey, Esq. (SBN: 284607) [email protected] 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (SBN: 225557) [email protected] 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Rafael David Sherman

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

RAFAEL DAVID SHERMAN, Individually And On Behalf Of All Other Similarly Situated,

Plaintiff,

v.

KAISER FOUNDATION HEALTH PLAN, INC., a/k/a KAISIER PERMANENTE,

Defendant.

Case No.: 13-cv-00981-JAH-JMA NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT Date: April 27, 2015 Time: 2:30 p.m. Place: Courtroom 13B Judge: Hon. John A. Houston

Case 3:13-cv-00981-JAH-JMA Document 44 Filed 03/04/15 Page 1 of 2

NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES, COSTS, AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA 1

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on April 27, 2015, at 2:30 p.m., before the

United States District Court, Southern District of California, Courtroom 13B, 333

West Broadway, San Diego, CA 92101, plaintiff, Rafael David Sherman

(“Plaintiff”), will move this Court for an Order Granting Approval of Plaintiff’s

Motion for Attorneys’ Fees, Costs and Incentive Payment.

This motion is based upon this notice, the records and papers on file herein,

the attached memorandum of points and authorities, the declarations and exhibits

thereto, and on such other evidence as may be presented at the hearing of this

Motion.

Respectfully submitted,

KAZEROUNI LAW GROUP, APC

Date: March 4, 2015 By:/s/ Abbas Kazerounian ABBAS KAZEROUNIAN, ESQ. ATTORNEY FOR PLAINTIFF

Case 3:13-cv-00981-JAH-JMA Document 44 Filed 03/04/15 Page 2 of 2

MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA

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



Plaintiff,

v.


Defendant.

Case No.: 13-cv-00981-JAH-JMA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT Date: April 27, 2015 Time: 2:30 p.m. Place: Courtroom 13B Judge: Hon. John A. Houston [Filed concurrently with Declaration of Abbas Kazerounian, Declaration of Joshua B. Swigart, Declaration of Jason A. Ibey, Declaration of Rafael David Sherman, Declaration of Todd M. Friedman, Declaration of Stephen G. Recordon, Declaration of Clinton Rooney]

Case 3:13-cv-00981-JAH-JMA Document 44-1 Filed 03/04/15 Page 1 of 29

MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA i

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... ii

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

II. STATEMENT OF FACTS ........................................................................ 3

A. BRIEF FACTUAL BACKGROUND .............................................................. 3

B. PROCEDURAL HISTORY .......................................................................... 4

III. ARGUMENT ............................................................................................. 5

A. THE REQUESTED FEE AWARD IS FAIR, REASONABLE, AND JUSTIFIED ... 5

1. The requested fees resulted from arm’s length negotiations ... 6

2. The requested fees are reasonable, fair and justified under the percentage-of-the-fund method .......................................... 7

a. Class counsel have obtained excellent results for the class in comparison to awards made in similar cases… ............................................................................. 8

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

c. The skill required and quality of work performed support the requested fees .............................................. 12

d. Class counsels’ undertaking of this Action on a contingency-fee basis supports the requested fees ......... 13

3. The requested fees are reasonable, fair and justified under

the lodestar method ................................................................ 15 a. Class Counsels’ lodestar is reasonable ......................... 16

b. Class Counsels’ hourly rates are reasonable ................ 17

B. THE REQUESTED COSTS ARE FAIR AND REASONABLE ........................ 19

C. THE REQUESTED INCENTIVE AWARD IS FAIR AND REASONABLE ........ 20

IV. CONCLUSION ........................................................................................ 22


MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA ii

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TABLE OF AUTHORITIES

CASES

Baird v. Sabre Inc.,

2014 WL 320250 (C.D. Cal. Jan. 28, 2014) .................................................. 10, 14

Barani v. Wells Fargo Bank,

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

Blum v. Stevenson,

465 U.S. 886 (1994) ............................................................................................... 17

Connelly v. Hilton Grand Vacations, Co., LLC,

294 F.R.D. 574 (S.D. Cal. 2013) ......................................................................... 11

Davis v. City and County of San Francisco,

976 F.3d 1536 (9th Cir. 1992) ............................................................................. 17

Dennis v. Kellogg Co.,

2010 WL 4285011 (S.D. Cal. Oct. 14, 2010) ........................................................ 6

Di Giacomo v. Plains All Am. Pipeline,

2001 U.S. Dist. LEXIS 25532 (S.D. Tex. Dec. 18, 2001) .................................. 16

Fischel v. Equit. Life Assurance Soc’y,

307 F.3d 997 (9th Cir. 2002) ............................................................................... 16

Gager v. Dell Fin. Servs., LLC,

727 F.3d 265, 272 (3d Cir. Pa. 2013) ................................................................. 11

Glass v. UBS Fin. Servs.,

2007 U.S. Dist. LEXIS 8476, (N.D. Cal. Jan. 26, 2007) .............................. 15, 16

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

2014 WL 888665 (S.D. Cal. Mar. 5, 2014) ........................................................... 11

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) .......................................................................... 2, 6, 15

///


MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA iii

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Hartless v. Clorox Co.,

273 F.R.D. 630 (S.D. Cal. 2011) ........................................................................ 19

Hensley v. Eckerhart,

461 U.S. 424 (1983) .............................................................................................. 8

Hyde v. Midland Credit Management Inc.,

No. 07-55326 (9th Cir.) ....................................................................................... 18

In re Activision Sec. Litig.,

723 F. Supp. 1373 (N.D. Cal. 1989) ..................................................................... 8

In re Beverly Hills Fire Litigation,

639 F. Supp. 915 (E.D. Ky. 1986) ....................................................................... 16

In re Bluetooth Headset Prods. Liab. Litig.,

654 F.3d 935 (9th Cir. 2011) ................................................................................. 5

In re Immune Response Sec. Litig.,

497 F. Supp. 2d 1166 (S.D. Cal. 2007) ............................................................... 19

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

Case No. 11-MD-02261-JM-JMA (S.D. Cal. Dec. 30, 2012) ......................... 9, 15

In re Media Vision Tech. Sec. Litig.,

913 F. Supp. 1362 (N.D. Cal. 1996) ..................................................................... 19

In re Mego Fin. Corp. Sec. Litig.,

2123 F.3d at 457 (9th Cir. 2000) ......................................................................... 21

In re Mercury Interactive Corp.,

618 F.3d 988 (9th Cir. 2010) .................................................................................. 5

In re Omnivision Techs.,

559 F. Supp. 2d 1036 (N.D. Cal. 2007) ............................................... 8, 10, 12, 14

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

19 F.3d 1291 (9th Cir. 1994) ................................................................................ 13

///


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Kerr v. Screen Extras Guild, Inc.,

526 F.2d 67 (9th Cir. 1975) ................................................................................. 16

Knutson v. Schwan’s Home Service, Inc.,

Case No. 12-CV-00964-GPC-DHB (S.D. Cal. Jul. 14, 2012) ............................ 10

Knutson v. Sirius XM Radio,

No. 12-56120 (9th Cir. 2014) .............................................................................. 18

Linney v. Cellular Alaska Part.,

1997 U.S. Dist. LEXIS 24300, (N.D. Cal. 1997) ................................................ 21

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

2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2008) ................................................. 21

Malta v. Federal Loan Home Mort. Corp.,

2013 U.S. Dist. LEXIS 15731 (S.D. Cal. Feb. 4, 2013) ....................................... 10

Milliron v. T-Mobile USA, Inc.,

2009 WL 3345762 (D.N.J. Sept. 14, 2009) ........................................................... 6

Mills v. Electric Auto-Lite Co.,

396 U.S. 375 (1970) ............................................................................................. 19

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

688 F.2d 615 (9th Cir. 1982) ................................................................................. 6

Opson v. Hanesbrands Inc.,

2009 U.S. Dist. LEXIS 33900 (N.D. Cal. Apr. 3, 2009) ....................................... 21

Ordick v. UnionBancCal Corp.,

2012 U.S. Dist. LEXIS 171413 (N.D. Cal. Dec. 3, 2012) .................................... 22

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

2008 WL 4351842 (C.D. Cal) ............................................................................ 19

Radcliffe v. Experian Info. Solutions, Inc.,

2013 U.S. App. LEXIS 9126 (9th Cir. Mar. 4, 2013) ......................................... 21

///


MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA v

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Rodriguez v. CleanSource, Inc.,

2014 U.S. Dist. LEXIS 106901, *13 (S.D. Cal. Aug. 4, 2014) ............................. 8

Rodriguez v. West Publishing Corp.,

563 F.3d 948 (9th Cir. 2009) ................................................................................ 20

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

2010 WL 2486346 (C.D. Cal. June 15, 2010) ....................................................... 6

Serrano v. Unruh,

32 Cal. 3d 621 (1982) .......................................................................................... 17

Smith v. Microsoft Corp.,

2014 U.S. Dist. LEXIS 12799 .............................................................................. 11

Staton v. Boeing Co.,

327 F.3d 938 (9th Cir. 2003) .......................................................................... 5, 20

Vandervort v. Balboa Capital Corp.,

2014 U.S. Dist. Lexis 46174 (C.D. Cal. Mar. 27, 2014) ....................................... 21

Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002) ............................................................. 8, 10, 14, 15

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

2015 U.S. Dist. LEXIS 23869, *36 (N.D. Ill. Feb. 27, 2015) .......... 10, 12, 14, 15

West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 76558 (E.D. Cal. 2006) ................................................. 21 Wojcik v. Buffalo Bills Inc.,

Case No. 8:12-cv-02414-SDM-TBM (M.D. Fla. Aug. 25, 2014) .......................... 9

STATUTES

47 U.S.C. § 227 ......................................................................................................... 3 RULES

Fed. R. Civ. P. 23 ....................................................................................................... 2


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Fed. R. Civ. P. 23(h) .............................................................................................. 5, 9 Fed. R. Civ. P. 30(b)(6) .................................................................................... 4, 7, 11 OTHER 2 Joseph McLaughlin, McLaughlin on Class Actions § 6:7 (8th ed. 2011) ............................................... 7 Federal Judicial Center, Manual for Complex Litigation, § 27.71 (4th ed. 2004) .................................... 8-9 National Law Journal 2012 Billing Survey, ALM Legal Intelligence ............................................................................... 18, 19


MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA 1

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I. INTRODUCTION

Plaintiff moves the Court for an award of attorneys’ fees, costs and incentive

payment as part of this preliminarily approved class action settlement (see Dkt. No.

38) between plaintiff Rafael David Sherman (“Plaintiff” and/or “Sherman”) and

defendant Kaiser Foundation Health Plan, Inc. (“Defendant” and/or “Kaiser”).1

The Settlement Agreement provides for a substantial financial benefit of

$5,350,000.00 (“Settlement Fund”) to the approximately 864,412 settlement class

members (“Class Members”).2 Settlement Agreement (“SA”), §§ 1.2, 3 and 4.

Every member of the Class who submits a Valid Claim Form, as set forth in

Section 9.2 of the Settlement Agreement, will be entitled to a pro rata share of the

Settlement Fund in the form of a check - after deducting the attorneys’ fees and

costs, the incentive award to the Class Representative and the administrative costs

from the Settlement Fund. SA § 4. Accordingly, the Settlement Agreement

provides that Defendant will pay all of the following from the Settlement Fund: (1)

attorneys’ fees in an amount not to exceed 25% of the Settlement Fund

($1,337,500.00) (id. at § 5); (2) litigation costs up to $25,000 (id.); (3) an incentive

award for the Plaintiff and Class Representative in an amount not to exceed $1,500

(id. at § 6); and (4) all settlement administration costs, estimated to be

approximately $495,374 (id. at § 7), which is $475,897.85 as of January 31, 2015.

On December 4, 2014, the Court granted preliminary approval of the

Settlement and its terms enumerated above, observing, “the Settlement of the

Lawsuit, on the terms and conditions set forth in the Agreement and the exhibits

thereto, is in all respects fundamentally fair, reasonable and adequate and in the

best interest of the Class Members.” Dkt. No. 38, 2:17-20. The Court preliminarily

approved the attorneys’ fees, litigation costs, incentive award and administrative

1 Collectively referred to as the “Parties.” 2 Defined terms are intended to have their meaning in the Settlement Agreement. The Settlement Agreement was filed at Dkt. No. 35-3.



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costs sought by stating, “[t]he Court preliminarily approves the process set forth in

the Agreement for reviewing, approving and paying claims from the Settlement

Fund on a pro rata basis, after deducting notice and claims administration costs,

attorneys’ fees, litigation costs, and any incentive payment.” Dkt. No. 38, 4:19-

23.

Federal Rules of Civil Procedure provide that “[i]n a certified class action,

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

authorized by law or by the parties agreement.” Fed. R. Civ. P. 23. The Settlement

Agreement, which was preliminarily approved by this Court, was the result of

extensive arm’s length negotiations. See Recitals to the SA. Among other things,

the parties have propounded and responded to extensive written discovery and

exchanged voluminous documents. Id. Further, the arm’s length negotiations

before a mediator, the Hon. Judge Leo S. Papas (Ret.) (id.), serve as “independent

confirmation” of the reasonableness of the settlement’s terms including the

attorneys’ fees, litigation costs, and incentive award sought by this Motion. See

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998). Under these

circumstances, the Court may give deference to the judgment of the Parties

regarding the reasonableness of the requested fees.

The reasonableness of the requested fees is also supported by the “percentage

of-the-fund” and “lodestar” approach. The $1,337,500.00 in attorneys’ fees sought

equates to 25% of the $5,350,000.00 Settlement Fund, which falls squarely in line

with the Ninth Circuit’s benchmark percentage of 25% for attorneys’ fee awards in

common fund cases, such as the present. Additionally, Class Counsel have incurred

a combined total of 496.20 hours litigating this action for a combined lodestar of

$272,808. While the percentage-of-the-fund and loadstar approaches support the

amount of attorneys’ fees requested, a strict application of either one is not

warranted here.

Through this fee brief, which is unopposed by Defendant, Plaintiff seeks



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Court approval of the agreed-upon costs and fees as follows: (1) all settlement

administration costs estimated to be approximately $495,374 and to be paid to the

Claims Administrator; (2) attorneys’ fees in the amount of $1,337,500.00; (3)

litigation costs in the amount of $9,791.23 as of March 3, 2015 (and up to

$25,0003); and (4) an incentive award of $1,500 for the Class Representative. As

more thoroughly stated herein and as detailed in the supporting declarations filed

herewith, these sums are fair and reasonable as they resulted from extensive arm’s

length negotiations and are further supported by the percentage-of-the-fund and

loadstar methodologies. See Declaration of Abbas Kazerounian (“Kazerounian

Decl.”) ¶¶ 6, 17-28; Declaration of Joshua B. Swigart (“Swigart Decl.”) ¶¶ 5, 16-28;

see also, Declaration of Jason A. Ibey (“Ibey Decl.”) ¶¶ 4-16.

II. STATEMENT OF FACTS

A. Brief Factual Background

During the relevant time period, April 24, 2009 through the date of entry of

a Preliminary Approval Order, which is December 4, 2014, Defendant sent

Plaintiff and other former Kaiser members prerecorded messages to their cellular

telephones, without their consent, encouraging them to re-apply for Kaiser

coverage or to return at the next opportunity. See Second Amended Complaint

(“SAC.”) ¶¶ 14-24 [Dkt. No. 15]; Section B to Recitals to SA; id. at § 1.

In filing suit, Plaintiff alleged that Defendant violated the Telephone

Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) by making calls to

cellular telephones using an ATDS and/or an artificial or prerecorded voice

without the recipient’s prior express consent. See SA § B. Plaintiff contends he is

entitled to statutory damages pursuant to the TCPA. SAC, ¶¶ 39 and 43.

Defendant has denied, and continues to deny, that it violated the TCPA and denies

3 Class Counsel may seek recovery of any additional costs incurred through final approval and will submit supplemental briefing, if necessary, prior to the final approval hearing.



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all charges of wrongdoing or liability against it, but nevertheless desires to settle

the Action. See Sections E and F to Recitals to SA; id. at § 2.

B. Procedural History

Plaintiff filed a complaint for damages and injunctive relief against

Defendant on April 24, 2013 and a First Amended Complaint on April 26, 2013

[Dkt. No. 4]. A Second Amended Complaint was filed on August 15, 2013. Dkt.

No. 15. Defendant filed an answer on September 17, 2013. Dkt. No. 17.

A telephonic Case Management Conference was held on October 1, 2013

before Magistrate Judge Jan M. Adler. Dkt. No. 18. The Parties’ counsel also

appeared before Judge Jan M. Adler on August 12, 2013, for an Early Neutral

Evaluation Conference (“ENE”). See Kazerounian Decl. in support of Plaintiff’s

Motion for Preliminary Approval, Dkt. No. 35-2, ¶ 7. The Parties also engaged in a

full day of mediation before Honorable Leo S. Papas (Ret.) on February 4, 2014,

and met for further negotiation subsequently before agreeing on the proposed

Settlement terms. See Section E to Recitals to SA. The parties have also conducted

considerable formal written discovery, and Class Counsel served Defendant with

written Confirmatory Discovery. See Kazerounian Decl., Dkt. 35-2, ¶ 13-14.

Moreover, in November of 2014, Class Counsel held an information interview with

a representative of Defendant, regarding the discovery produced in this action and

the information that formed the basis of the settlement. Kazerounian Decl., ¶ 6.

Through this process, the Parties reached a settlement agreement. See

generally, SA. After the Settlement Agreement had been reached, Plaintiff filed a

Motion for Preliminary Approval of Class Action Settlement and Certification of a

Settlement Class, which the Court granted on December 4, 2014. Dkt. No. 38.

Plaintiff now files this unopposed Motion for Attorneys’ Fees, Costs and Incentive

Payment. Objector Edward R. Kaempf filed a notice of withdrawal of his objection

on January 17, 2015 (Dkt No. 42). Class Counsel took the deposition of objector

Marianne Nygaard on February 5, 2015, who withdrew her objection and filed a



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notice of withdrawal of that objection on February 6, 2015 (Dkt. No. 43). See

Kazerounian Decl., ¶ 26.

III. ARGUMENT

Class Counsel respectfully assert that (A) the requested fee award of

$1,337,500.00 is fair, reasonable, and justified; (B) the payment of up to $25,000

(currently $9,791.23) in costs is fair and reasonable; and (C) the named Plaintiff’s

modest incentive award of $1,500 is fair and reasonable.

A. The Requested Fee Award Is Fair, Reasonable And Justified

Federal Rules of Civil Procedure provide that “[i]n a certified class action,

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

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

added). As explained by the Ninth Circuit, “[a]ttorneys’ fees provisions included in

proposed class action settlement agreements are, like every other aspect of such

agreements, subject to the determination whether the settlement is ‘fundamentally

fair, adequate, and reasonable.’” Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir.

2003).

In common fund cases, Courts within the Ninth Circuit have discretion to use

one of two methods to determine whether the fee request is reasonable: (1)

percentage-of-the-fund; or, (2) lodestar plus a risk multiplier. Staton, 327 F.3d at

967-68; see also In re Mercury Interactive Corp., 618 F.3d 988, 992 (9th Cir. 2010).

“Though courts have discretion to choose which calculation method they use, their

discretion must be exercised so as to achieve a reasonable result.” In re Bluetooth

Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011).

In most common fund cases where a percentage-of-the-fund or lodestar

analysis is applied, attorneys’ fees, litigation costs, and incentive awards are paid

directly from the settlement fund, which invariably reduces class members’

recovery. Class Counsel maintain the request for attorneys’ fees is reasonable based

solely upon the arm’s length formal negotiations that serve as independent



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confirmation of the fairness of the settlement, including attorneys’ fees. See

Hanlon, 150 F.3d at 1029. However, the requested fees are also fully supported

under the percentage-of-the-fund and lodestar approach, which Class Counsel offer

as an additional and optional means of cross-checking the requested fees. 1. The requested fees resulted from arm’s length negotiations

While attorneys’ fee provisions included in class action settlements are

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

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

upon what is otherwise a private consensual agreement negotiated between the

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

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

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

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

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

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

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

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

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

upon the mediation proceedings “as independent confirmation that the fee was not

the result of collusion or a sacrifice of the interests of the class.” Hanlon, 150 F.3d

at 1029. See also Milliron v. T-Mobile USA, Inc., 2009 WL 3345762, at *5 (D.N.J.

Sept. 14, 2009) (“the participation of an independent mediator in settlement

negotiation virtually insures that the negotiations were conducted at arm’s length

and without collusion between the parties”); Sandoval v. Tharaldson Emp. Mgmt.,

Inc., 2010 WL 2486346, at *6 (C.D. Cal. June 15, 2010) (“the assistance of an

experienced mediator in the settlement process confirms that the settlement is non-

collusive”); Dennis v. Kellogg Co., 2010 WL 4285011, at *4 (S.D. Cal. Oct. 14,



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2010) (parties engaged in a “full-day mediation session,” which helped to establish

that the proposed settlement was non-collusive). See also 2 McLaughlin on Class

Actions, § 6:7 (8th ed.) (“A settlement reached after a supervised mediation

receives a presumption of reasonableness and the absence of collusion”).

In granting preliminary settlement approval, this Court found, “that the

Settlement of the Lawsuit, on the terms and conditions set forth in the Agreement

and the exhibits thereto, is in all respects fundamentally fair, reasonable, adequate

and in the best interest of the Class Members.” Dkt. No. 38, 2:16-20. The extensive

arm’s length negotiations that occurred in this case are outlined in the Settlement

Agreement, which this Court preliminarily approved. Id.; see also, Sections C and

D to Recitals to SA. Among other things, the Parties have propounded and

responded to extensive written discovery and exchanged voluminous documents.

Section C to Recitals to SA. The Parties also engaged in an ENE and telephonic

Case Management Conference before Magistrate Judge Jan M. Adler (See

Kazerounian Decl. in support of Plaintiff’s Motion for Preliminary Approval, filed

previously at Dkt. No. 35-2, ¶ 7). These negotiations culminated with a full-day

mediation session before a respected former federal magistrate judge, the Hon. Leo

S. Papas (Ret.) (see Section D to Recitals to SA), which ultimately resulted in a

settlement conferring excellent benefits to the Class. Under these circumstances,

the Court may give deference to the mediation proceedings and the judgment of the

Parties regarding the reasonableness of fees and costs.

Additionally, the requested fee is also wholly supported by both the

percentage-of-the-fund and lodestar methods, which the Court may employ as a

means of assessing the reasonableness of the requested fee.

2. The requested fees are reasonable, fair, and justified under the percentage-of-the-fund method

Courts consider a number of factors to determine the appropriate percentage

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



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

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

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

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

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

Vizcaino, 290 F.3d at 1047. As recently explained by this Court, “[m]ost

attorneys’ fees awards usually fall within the range of 20 to 30 percent of the

common fund.” Rodriguez v. CleanSource, Inc., 2014 U.S. Dist. LEXIS 106901,

*13 (S.D. Cal. Aug. 4, 2014) (citing Paul, Johnson, Alston & Hunt v. Graulty, 886

F.2d 268, 272 (9th Cir. Haw. 1989)). Indeed, “in most common fund cases, the

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

1036, 1047 (N.D. Cal. 2007) (citing In re Activision Sec. Litig., 723 F. Supp. 1373,

1378 (N.D. Cal. 1998)). Both the Omnivision and Activision Courts concluded that

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

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

Class Counsels’ request for attorneys’ fees in the amount of $1,337,500.00

equates to 25% of the $5,350,000 Settlement Fund, which falls squarely within the

Ninth Circuit’s benchmark and is less than more recent precedents. In addition, the

fee request is fully supported by the factors enunciated in Vizcaino including: (a) the

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

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

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

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

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

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

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

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



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

factor supports Class Counsels’ fee request.

The settlement secured by Plaintiff and Class Counsel provides an excellent

recovery for Class Members as compared to similar TCPA cases, despite the

uncertainty of recovery in TCPA class actions. The Settlement Agreement provides

for $5,350,000.00 in recovery for the Class. SA § 4. Every member of the Class

who submits a Valid Claim Form, as set forth in Section 9.2 of the Settlement

Agreement, will be entitled to a pro rata share of the Settlement Fund in the form

of a check - after deducting the attorneys’ fees and costs, the incentive award to the

Class Representative and the administrative costs from the Settlement Fund. SA §

4.

The individual recovery of each Class Member here (estimated to be

approximately $106 in value as of March 2, 2015) far exceeds or is in line with other

TCPA class action settlements.4 Notably, the settlement obtained here exceeds the

settlement in a nearly identical TCPA class action, in which each class member

received a single voucher for an oil change valued at $20. In re Jiffy Lube

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

No. 90-1 p. 7-8 (S.D. Cal. Dec. 30, 2012); See also Wojcik v. Buffalo Bills Inc., No.

8:12-cv-02414-SDM-TBM, Dkt. No. 79 (M.D. Florida August 25, 2014) [Exhibit

B] (finally approving a settlement in a TCPA action with a gift card value of

$57.50 to $75.00 for each class member, redeemable at Buffalo Bills stores). Here,

Plaintiff and Class Counsel secured a settlement in excess of five times that of Jiffy

Lube making the settlement excellent as compared to similar cases. The recovery is

4 As of March 2, 2015, there are 32,898 valid claims reported by the Claims Administrator, which represents a claims rate of approximately 3.8%, for there are an estimated 864,412 Class Members. Class Counsel estimate a final claims rate of approximately 4-5%. See Dkt. No. 35-1, 5:1-6:3. Class Counsel will have a more accurate figure after the deadline for the Class Members to file a claim runs on April 3, 2015.



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also in line with the very recently finally approved TCPA class action settlement in

Wilkins, 2015 U.S. Dist. LEXIS 23869 at *12, where each of the claiming class

members are to receive $93.22.

b. The risks of litigation support the requested fees

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

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

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

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

requested fee).

As this Court recently observed, “[t]he law interpreting the TCPA and its

consent requirement has been in flux, making it difficult for Class Members to prove

lack of consent under the TCPA.” Knutson v. Schwan’s Home Service, Inc., Case

No. 12-CV-00964-GPC-DHB, Dkt. No. 139 p. 4 (S.D. Cal. Jul. 14, 2012) (citing

Baird v. Sabre Inc., 2014 WL 320250 (C.D. Cal. Jan 28, 2014)). One court has

assumed “the average TCPA case carries a 43% chance of success,” In re Capital

One Telephone Consumer Protection Act Litigation, MDL No. 2416, p. 37 (N.D.

Ill. Feb. 12, 2015) [Exhibit C].

The difficulty of proving lack of consent, the gravamen of a TCPA claim, is

reflected in TCPA settlements yielding recoveries that equate to a small fraction of

the full $500 statutory recovery. For example, this Court has approved TCPA

settlements that could yield as little as approximately $3 per class member if every

member were to make a claim. See Malta v. Fed. Home Loan Mortgage Corp.,

2013 WL 444619 (S.D. Cal. Feb. 5, 2013); see also Barani v. Wells Fargo Bank,

N.A., 2014 WL 1389329 (S.D. Cal. Apr. 9, 2014) (approving a TCPA settlement

where claimants would receive approximately $7 if all class members made a

claim). The uncertainty of recovery under the TCPA is further reflected by the fact

this Court has approved a settlement, and awarded $475,000 in attorneys fees, in a

TCPA action where class members received no monetary relief, only an injunction.



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See Grant v. Capital Mgmt. Servs., L.P., 2014 WL 888665 (S.D. Cal. Mar. 5,

2014).

Courts have also refused to certify TCPA class actions, which is an

additional risk that is avoided by settlement. See Smith v. Microsoft Corp., 2014

U.S. Dist. LEXIS 12799, *28 (S.D. Cal. Jan. 28, 2014) (Class certification denied);

Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D. 574, 579 (S.D. Cal. 2013)

(Class certification denied).

In this action, there is a serious dispute here regarding whether Defendant

had prior express consent to call former Kaiser Permanente members on their cell

phone. Whether consent to automated calls following the conclusion of health

insurance membership is a novel issue. Were this case to proceed to trial, Plaintiff

would need to show either that any consent lapsed or ended upon termination of

the health insurance membership or that consent to marketing calls fell outside the

scope of any consent from the former members. Defendant would likely argue that

consent remained, even following termination of the health insurance membership,

unless the consent had been expressly revoked by the Class Members. “[A]n

individual should be allowed withdraw consent at any time if she no longer wishes

to continue with a particular course of action.” Gager v. Dell Fin. Servs., LLC, 727

F.3d 265, 272 (3d Cir. Pa. 2013). Plaintiff would argue that termination of the

membership automatically revoked any prior consent,5 especially for marketing

purposes. As noted by the FCC in 2012, “[c]onsumers who provide a wireless

phone number for a limited purpose – for service calls only – do not necessarily

expect to receive telemarketing calls that go beyond the limited purpose for which

oral consent regarding service calls may have been granted.” In re Rules

Implementing the TCPA of 1991, 27 F.C.C.R. 1830, 1840 (Feb. 15, 2012). 5 Under the common law doctrine of consent, “consent is terminated when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct.” Gager, 727 F.3d at 271 (citing Restatement (Second) of Torts § 892A, cmt. i (1979)) (emphasis added).



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Therefore, the consent defense presents a substantial risk for both sides, and

supports the reasonableness of this settlement with an excellent financial recovery

for the Class Members.

According to the court in Wilkins, “considering [defendant’s] potentially

meritorious defenses and the legal uncertainty concerning the application of the

TCPA, the court concludes that Plaintiffs would probably face an uphill battle

proceeding to trial and, once there, obtaining relief. The settlement provides value

that is fair considering the very real possibility that Plaintiffs may recover nothing

if they were to proceed further with the litigation.” Wilkins, 2015 U.S. Dist. LEXIS

23869 at *24.

Thus, the risks of continued litigation not only depicts the high degree of

results obtained for the Class, but also further support the reasonableness of the

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

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

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

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

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

consumer class actions. Class Counsel have successfully prosecuted numerous

TCPA and other complex consumer class actions and have secured noteworthy

recoveries for those classes. See Swigart Decl., ¶¶ 8-10; Kazerounian Decl. ¶ 10-

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

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

actions.

In the present case, Class Counsel performed significant factual investigation

prior to bringing the action and conducted extensive written discovery. See

6 See also Declaration of Jason Ibey (“Ibey Decl.”), ¶¶ 6-16, filed concurrently.



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Kazerounain Decl., ¶¶ 6 and 26. The Parties engaged in formal discovery, with

Plaintiff serving Requests for Admission, Request for Production of Documents, and

Special Interrogatories, and Defendant serving Plaintiff serving Requests for

Admission, Request for Production of Documents, and Special Interrogatories. See

id. Defendant produced 482 pages of documentation to Plaintiff. Id. Plaintiff also

held and informal interview in November of 2014 with a representative of

Defendant regarding the discovery produced by Defendant and information that

served as the basis for the settlement following mediation. Id.

Further, Plaintiff’s Counsel then participated in protracted negotiations,

including an ENE and Case Management Conference before Magistrate Judge Jan

M. Adler, and a full day mediation before Honorable Leo S. Papas (Ret.) where

they vigorously negotiated and ultimately secured a settlement for the benefit of

Class Members worth millions of dollars. See id. at ¶ 6; Swigart Decl., ¶ 5. Class

Counsel also met with Defendant after mediation to further negotiate the structure of

the settlement. Kazerounian Decl., ¶ 6.

Lastly, the two Class Members who filed an objection to the Settlement have

since withdrawn their objections after discussions with Class Counsel, including

the deposition of one of the objectors in Sacramento, which was taken by Class

Counsel. See Kazerounian Decl., ¶ 26.

Thus, Class Counsels’ skill and expertise (as discussed below), reflected in

the prompt and significant Settlement, supports the requested fees.

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

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

rewarding attorneys who undertake representation on a contingent basis by

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

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

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



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

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

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

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

paying them a premium over their normal hourly rates”). See also Wilkins v. HSBC

Bank Nev., N.A., 2015 U.S. Dist. LEXIS 23869, *36 (N.D. Ill. Feb. 27, 2015)

(“[t]he estimated magnitude of the risk necessarily affects the price at which Class

Counsel in this case would have been willing to offer their services in an ex ante

negotiation, had such a negotiation occurred.”).

Class Counsel prosecuted this matter on a purely contingent basis while

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

receive a fee if there were a recovery. See Kazerounian Decl., ¶ 17; Swigart Decl., ¶

16. In pursuit of this litigation, Class Counsel have spent considerable outlays of

time and money by, among other things, (1) investigating the actions; (2) conducting

extensive discovery; (3) negotiating the Settlement over a period of months,

including a full day of private mediation; (4) Class counsel will also be required to

oversee administration of the Settlement; and, (5) respond to Class Member

inquiries and address objections to the Settlement. Kazerounian Decl., ¶¶ 24-28;

Swigart Decl., ¶¶ 17-28. Class Counsel expended these resources despite the risk

that Class Counsel may never be compensated, especially in light of the fluctuating

interpretations of the TCPA and the difficulty in securing class certification. See

Baird v. Sabre Inc., 2014 WL 320250 (C.D. Cal Jan 28, 2014).

In this case, Plaintiff’s counsel here incurred $9,791.23 in costs (as of March

3, 2015) and spent a combined 496.20 hours litigating this action. Thus, Class

Counsels’ “substantial outlay, when there is a risk that none of it will be recovered,

further supports the award of the requested fees” in this matter. Omnivision, 559 F.

Supp. 2d at 1047. Therefore, the requested fees are fully supported by the factors

enunciated by Vizcaino, which is commensurate with the excellent results obtained



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for the Class and is comparable or in excess of awards in other TCPA cases, namely

In Re Jiffy Lube. Moreover, the fee is supported by the decision in Wilkins, 2015

U.S. Dist. LEXIS 23869 at *42, which recently awarded “attorneys’ fees and costs

in the total amount of $9,495,000 (approximately 23.75% of the $39,975,000

settlement amount)” in a TCPA class action settlement).7

However, while the percentage-of-the-fund method is the preferred and most

widely used method for determining attorneys’ fees in a common fund case, it

should be noted that the percentage-of-the-fund method is optional and may be

applied at the Court’s discretion. Accordingly, the Court may also apply the lodestar

method as another optional means of cross-checking the requested fees.

3. The requested fees are reasonable, fair, and justified under the lodestar method

A court applying the percentage-of-the-fund method may use the lodestar

method as a “cross-check on the reasonableness of a percentage figure.” Vizcaino,

290 F.3d at 1050. However, a cross-check is optional. See Glass v. UBS Fin.

Servs., 2007 U.S. Dist. LEXIS 8476, at *48 (N.D. Cal. Jan. 26, 2007) (finding that

“where the early settlement resulted in a significant benefit to the class,” there is no

need “to conduct a lodestar cross-check”). If the Court chooses to perform such a

cross-check in this matter, it will confirm that an approximately 25% fee award of

$5,350,000 is reasonable.

The first step in the lodestar-multiplier approach is to multiply the number of

hours counsel reasonably expended by a reasonable hourly rate. Hanlon, 150 F.3d

at 1029. Once this raw lodestar figure is determined, the Court may then adjust that

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

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

7 The Wilkins’ Court explained the market rate fee scale for TCPA class actions as follows: 30% fee for first $10 million, 25% fee for next $10 million, and 20% fee for $20-45 million. Wilkins, 2015 U.S. Dist. LEXIS 23869 at *35.



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(2) whether fee is fixed or contingent; (3) the complexity of the issues involved; (4)

the preclusion of the other employment due to acceptance of the case; and, (5) the

experience, reputation, and ability of the attorneys. See Kerr v, Screen Extras Guild,

Inc., 526 F.2d 67, 70 (9th Cir. 1975).8

a. Class Counsels’ lodestar is reasonable

The accompanying declarations of Class Counsel and an associate attorney set

forth the hours of work and billing rates used to calculate their lodestar. Plaintiff’s

attorneys’ work is summarized as follows: HRS. INCURRED RATE/HR. TOTAL

KAZEROUNI LAW GROUP, APC - - -

A) ABBAS KAZEROUNIAN 246.30 $565 $139,159.50

B) JASON A. IBEY 65.40 $365 $23,871

HYDE & SWIGART - - -

A) JOSHUA B. SWIGART 184.50 $595 $109,777.50

TOTAL COMBINED LODESTAR 496.20 - $272,808

As described in the accompanying declarations, Class Counsel and their staff

have devoted a total of 496.20 hours to this litigation, and have a total lodestar of

$272,808 as of March 3, 2015, see Kazerounian Decl., ¶¶ 24-28; Swigart Decl., ¶¶

23-28; see also Ibey Decl. ¶ 6, representing a multiplier of 4.092.9 These amounts

include a conservative estimate of the additional time that Class Counsel will spend

going forward in seeking final approval of, and implementing the Settlement,

8 The risk inherent in contingency representation is a critical factor. The Ninth Circuit stresses that “[i]t is an abuse of discretion to fail to apply a risk multiplier when...there is evidence that the case was risky.” Fischel v. Equit. Life Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002); see also Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, at *16 (N.D. Cal. 2007). 9 See In re Beverly Hills Fire Litigation, 639 F. Supp. 915 (E.D. Ky. 1986) (awarding multiplier of 5 for lead counsel); Di Giacomo v. Plains All Am. Pipeline, 2001 U.S. Dist. LEXIS 25532 (S.D. Tex. Dec. 18, 2001) (approving 5.3 multiplier).



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including assisting Class Members with claims and overseeing claims

administration. Generally, these tasks require substantially more hours that those

estimated. Class Counsels’ lodestar will continue to grow as Class Counsel finalizes

the settlement process and closes the litigation.

The Claims Period will last for approximately one month (deadline of April 3,

2015), and Class Counsels’ commitment of time and labor to this case will continue

until (and likely beyond) that date. These responsibilities will require a substantial

number of hours of work by Class Counsel over the coming months. See

Kazerounian Decl. ¶ 28; Swigart Decl. ¶¶ 17 and 28; see also Ibey Decl. ¶ 6.

Thus, Class Counsel’s lodestar is reasonable. Class Counsel prosecuted the

claims at issue efficiently and effectively, making every effort to prevent the

duplication of work that might have resulted from having multiple firms working on

this case. In this regard, tasks were reasonably divided among firms to ensure

avoiding the replication of work. Further, tasks were delegated appropriately among

partners, associate attorneys, paralegals, and other staff according to their

complexity such that the attorneys with higher billing rates billed time only where

necessary. In addition, Class Counsels’ contemporaneous time records were

carefully reviewed and duplicative work was deleted. See Kazerounian Decl. ¶ 23;

Swigart Decl. ¶ 17.

b. Class Counsels’ hourly rates are reasonable

Similarly, Class Counsels’ hourly rates are also reasonable. In assessing the

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

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

reasonably comparable skill, experience and reputation.” Blum v. Stevenson, 465

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

976 F.3d 1536, 1546 (9th Cir. 1992); and, Serrano v. Unruh, 32 Cal. 3d 621, 643

(1982). Class Counsel here are experienced, highly regarded members of the bar

with extensive expertise in the area of class actions and complex litigation involving



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consumer claims like those at issue here. See Kazerounian Decl. ¶¶ 8-13; Swigart

Decl. ¶¶ 8-10; see also Ibey Decl. ¶¶ 7-15. Both Mr. Kazerounian and Mr. Swigart

are considered experts in the area of the TCPA and have lectured on the TCPA;

and Mr. Kazerounian is an adjunct professor at California Western School of Law

teaching a consumer law course featuring the TCPA. See Kazerounian Decl. ¶ 9;

Swigart Decl. ¶ 11. Mr. Kazerounian has also successfully argued before the Ninth

Circuit Court of Appeal in a TCPA action, resulting in a reversal of a motion to

compel arbitration in Knutson v. Sirius XM Radio, No. 12-56120 (9th Cir. 2014).10

Kazeronian Decl., ¶ 14. Mr. Swigart has also argued before the Ninth Circuit Court

of Appeal in the matter of Hyde v. Midland Credit Management Inc., No. 07-55326

(9th Cir.). Swigart Decl., ¶ 13.

Further, Plaintiff submits declarations from other experienced attorneys

supporting such hourly rates. See Declaration of Clinton Rooney (“Rooney Decl.”),

¶¶ 3-5; Declaration of Stephen G. Recordon (“Recordon Decl.”), ¶¶ 3-5;

Declaration of Todd M. Friedman (“Friedman Decl.”), ¶¶ 3-6.

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

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

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

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

which a high of $625 and a low of $310.11 See Exhibit A to Kazerounian Decl.,

filed concurrently. Thus, the billing rate for both partners (i.e., Mr. Kazerounian

10 Additionally, an article written by Mr. Kazerounian, entitled, Principles of Litigating Consumer Class Actions, was published in the February 2015 Edition of the Advocate. 11 Further, a 2010-2011 survey from of consumer attorney rates for this district during 2010-11 (Ronald L. Burdge, United States Consumer Law Attorney Fee Survey Report 2010-2011, Top 10 Cities, at 21 (2nd ed. 2012), available at http://ncbankruptcyexpert.com/wp/wp-content/uploads/2013/01/TOP-TEN-Cities-Edition-US-Consumer-Law-Attorney-Fee-Survey-2010-11.pdf), support these rates.



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and Mr. Swigart) is well within the normal range of fees charged by firms in

Southern California for partners.12

Additionally, associate Jason A. Ibey of Kazerouni Law Group, APC, who

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

consumer class actions, especially TCPA class actions, which justifies his hourly

rate. See Ibey Decl. ¶¶ 7-16; see also Friedman Decl., ¶ 6. According to the same

2012 National Law Journal Billing Survey referenced above, the average hourly

rate for an associate at a surveyed law firm in Irvine, California, was $330, which a

high of $420 and a low of $295; and the average hourly rate for an associate at a

surveyed law firm in Riverside, California was $250, which a high of $390 and a

low of $225. See Exhibit A Kazerounian Decl. Thus, the billing rate for Jason A.

Ibey is well within the normal range of fees charged by firms in Southern

California for an associate attorney.

Therefore, Class Counsels’ combined lodestar of $272,808 is reasonable

and supports the requested fees.

B. The Requested Costs Are Fair And Reasonable

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

preserves a common fund are reimbursed proportionately by those class members

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

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

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

case were necessary to secure the resolution of this litigation. See In re Immune

Response Sec. Litig., 497 F. Supp. 2d 1166, 1177-78 (S.D. Cal. 2007) (finding that

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



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costs such as filing fees, photocopy costs, travel expenses, postage, telephone and

fax costs, computerized legal research fees, and mediation expenses are relevant and

necessary expenses in class action litigation). Based upon the discussion herein,

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

Throughout the course of this litigation, Class Counsel had to incur costs

totaling $9,791.23. See Kazerounian Decl. ¶ 20; Swigart Decl., ¶¶ 19-20. These

costs were necessary to secure the resolution of this litigation. Class Counsel put

forward said costs without assurance that Class Counsel would ever be repaid. These

costs are likely to increase as the claims submission deadline and time for the final

approval hearing draws nearer.

Here, the Class Notice informed Class Members that Class Counsel would

seek an award of costs up to $25,000. See Dkt. No. 35-4. Further, the Settlement

Agreement authorizes a petition of costs for up to $25,000. SA § 5. In light of the

expenses Class Counsel were required to incur to bring this case to its current

settlement posture, the request for costs of $9,791.23 is reasonable. Class Counsel

will likely incur additional costs as this case moves to the final approval stage,

which final approval hearing is set for April 27, 2015.

C. The Requested Incentive Award Is Fair And Reasonable

As the Ninth Circuit has recognized, “named Plaintiffs, as opposed to

designated class members who are not named Plaintiffs, are eligible for reasonable

incentive payments.” Staton, 327 F.3d at 977; Rodriguez v. West Publishing Corp.,

563 F.3d 948, 958 (9th Cir. 2009) (service awards “are fairly typical in class action

cases”). Such awards are intended to compensate class representatives for work

done on behalf of the class [and] make up for financial or reputational risk

undertaken in bringing the action.” Id. Small incentive awards, such as those

requested here, promote the public policy of encouraging individuals to undertake

the responsibility of representative lawsuits. The requested modest incentive award



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of $1,500 for the Plaintiff is well justified.13 This amount awarded as a service

award is well in line with similar awards approved by other federal courts, and

supported by the recent Ninth Circuit authority in Radcliffe v. Experian Info.

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

In addition to lending his name to this matter, and thus subjecting himself to

public attention, Plaintiff has actively engaged in this action. Among other things,

he (1) provided information to Class Counsel for the Complaints; (2) reviewed

pleadings and other documents; (3) communicated on a regular basis with counsel

and kept himself informed of progress in the litigation and settlement negotiations;

(4) made himself available telephonically for mediation; (5) reviewed and approved

the proposed settlement; and (6) submitted a declaration in support of the motion for

preliminary approval. See Declaration of Rafael David Sherman ¶¶ 4-5, filed

concurrently.

Mr. Sherman’s dedication to this action was notable, particularly given the

relatively modest personal financial stakes in this case. See Vandervort v. Balboa

Capital Corp., 88 Fed. R. Serv. 3d 365 (C.D. Cal. 2014) (awarding an incentive

payment of $10,000 for name plaintiffs in a TCPA case); Opson v. Hanesbrands

Inc., 2009 U.S. Dist. LEXIS 33900, at *27-28 (N.D. Cal. Apr. 3, 2009) (awarding

$5,000 incentive payment and finding that “in general, courts have found that $5,000

13 Courts have long recognized that a class representative should be compensated for their service to the class. In re Mego Fin. Corp. Sec. Lit., 2123 F.3d 454, 463 (9th Cir. 2000); West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 76558, at *26 (E.D. Cal. 2006). Such compensation provides the economic motivation to induce potential plaintiffs to lend their names and support to class actions generally. West, 2006 U.S. Dist. LEXIS 76558, at *26. And the same incentive fees further ensure that meritorious actions are prosecuted to completion. Linney v. Cellular Alaska Part., 1997 U.S. Dist. LEXIS 24300, at *23 (N.D. Cal. 1997). A court should order an incentive award when it finds that it is not the product of collusion and does not come at the expense of the remaining members of the class. Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314, at *17-18 (S.D. Cal. 2008).



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incentive payments are reasonable”); Ordick v. UnionBancCal Corp., 2012 U.S.

Dist. LEXIS 171413, at *11 (N.D. Cal. Dec. 3, 2012 (awarding $5,000 to named

Plaintiffs where “the settlement was reached at the early stages of litigation”).

Thus, Class Counsel respectfully request the Court award a modest incentive

payment of $1,500 to the named Plaintiff for his efforts as Class Representative.

IV. CONCLUSION

For the foregoing reasons, Class Counsel respectfully request that the Court

grant Plaintiff’s motion for an award of attorneys’ fees in the total amount of

$1,337,500.00, litigation costs of up to $25,000 (currently $9,791.23), costs of

notice and claims administration in the amount of $475,897.85 as of January 31,

2015 (and an estimated $495,374), and an incentive award in the amount of $1,500

to the named Plaintiff. Kazerounian Decl., ¶ 4; Swigart Decl., ¶ 3.

Respectfully submitted,

KAZEROUNI LAW GROUP, APC Date: March 4, 2015 By:/s/ Abbas Kazerounian ABBAS KAZEROUNIAN, ESQ. ATTORNEY FOR PLAINTIFF HYDE & SWIGART Joshua B. Swigart, Esq. (SBN: 225557) [email protected] 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff


KAZEROUNIAN DECL. IN SUPP. OF MTN. FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA

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Plaintiff,

v.


Defendant.

Case No.: 13-cv-00981-JAH-JMA DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT Date: April 27, 2015 Time: 2:30 p.m. Place: Courtroom 13B Judge: Hon. John A. Houston


KAZEROUNIAN DECL. IN SUPP. OF MTN. FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA 1

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DECLARATION OF ABBAS KAZEROUNIAN

I, Abbas Kazerounian, declare:

1. I am an attorney admitted to the State Bar of California in 2007 and have

been a member in good standing since that time. I have litigated cases in

both state and federal courts in California, Washington, Nevada, Arizona,

Arkansas, New York, New Jersey, Colorado, Tennessee, Ohio, Illinois and

Texas. I am admitted in every federal district in California and have

handled federal litigation in the federal districts of California. I am also

admitted to the state bar of Texas, Illinois, Washington, the Ninth Circuit

Court of Appeals, and the Supreme Court of the United States. I am a

partner with the law firm Kazerouni Law Group, APC, and co-counsel for

plaintiff Rafael David Sherman (“Plaintiff”) in the above-captioned action

against defendant Kaiser Foundation Health Plan, Inc. (“Defendant”).

2. I have personal knowledge of the following facts and, if called upon as a

witness, could and would competently testify thereto, except as to those

matters which are explicitly set forth as based upon my information and

belief and, as to such matters, I am informed and believe that they are true

and correct.

3. I am writing this declaration in support of Plaintiff’s Motion for Attorneys’

Fees, Costs and Incentive Payment.

4. Plaintiff seeks the Court’s approval of the following to be paid from the

$5,350,000.00 Settlement Fund, as part of the preliminarily approved

Settlement Agreement:

a. Attorneys’ fees in the amount of $1,337,500, representing 25% of the

$5,350,000.00 Settlement Fund;

b. Costs of litigation incurred by Class Counsel in the amount of

$9,791.23 as of March 3, 2015;



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c. Notice and claims administration costs of $475,897.85 as of January

31, 2015 (estimated to be $495,374); and

d. An incentive award of $1,500 to the named Plaintiff.

5. As part of the Settlement Agreement previously filed as Exhibit 1 to the

Plaintiff’s Motion for Preliminary Approval of Class Action Settlement

(Dkt. No. 35-3), Plaintiff and Defendant (hereinafter the “Parties”), agreed

that Defendant would pay all of the following from the Settlement Fund: (1)

attorney’s fees in an amount not to exceed 25% of the Settlement Fund

($1,337,500.00) (id. at § 5); (2) litigation costs up to $25,000 (id.); (3) an

incentive award for the Plaintiff and Class Representative in an amount not

to exceed $1,500 (id. at § 6); and (4) all settlement administration costs,

estimated to be approximately $495,374 (id. at § 7).

6. The Settlement Agreement was the result of good faith, arm’s length

settlement negotiations over many months, including a telephonic Case

Management Conference, which was held on October 1, 2013 before

Magistrate Judge Jan M. Adler (Dkt. No. 18) and an Neutral Evaluation

Conference (“ENE”) before Judge Jan M. Adler, held on August 7, 2013

(see Kazerounian Decl. in support of Plaintiff’s Motion for Preliminary

Approval, Dkt. No. 35-2, ¶ 7). The Parties also engaged in a full day of

mediation before Honorable Leo S. Papas (Ret.) on February 4, 2014, and

Class Counsel met with Defendant subsequent to the mediation to further

negotiate the structure of the settlement before agreeing on the proposed

Settlement terms. See Section E to Recitals to SA. Additionally, the parties

have also conducted considerable formal written discovery, including

written Confirmatory Discovery, with Defendant producing 482 pages of

documents. Class Counsel also conducted an informal interview in

November of 2014 with a representative of Defendant concerning the formal

discovery responses and information that served as the basis for the



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settlement.

I. COUNSEL’S EXPERIENCE

7. The Kazerouni Law Group, APC, has been preliminarly approved as Class

Counsel for purposes of this action and proceeding with the settlement. Dkt.

No. 38. I believe that my experience and expertise in this practice area in

California is sufficient to justify my hourly billing rate in this case of $565

per hour. To that end, I hereby submit for the court’s consideration my

qualifications and a summary of my experience which justify that hourly

rate.

8. As one of the main plaintiff litigators of consumer rights cases in the

Southern District of California, I have been requested to and have made

regular presentations to community organizations regarding debt collection

laws and consumer rights, including the Telephone Consumer Protection

Act (“TCPA”). These organizations include Whittier Law School, Iranian

American Bar Association, Trinity School of Law and Chapman Law

School, University of Southern California, Irvine, and California Western

School of Law. I was the principle anchor on Time Television Broadcasting

every Thursday night as an expert on consumer law generally, and the

TCPA specifically, between 2012 and 2013. I am a member of the

following organizations:

a. Consumer Attorneys Association of Los Angeles;

b. The Orange County Bar Association;

c. Former President of the Orange County Chapter of the Iranian

American Bar Association;

d. Member in good standing of National Association of Consumer

Advocates;

e. Member of Consumer Attorneys of California;



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f. Member of the Federal Bar Association; and

g. Member of the Leading Forum of the American Association of

Justice.

9. I am an adjunct professor at California Western School of Law where I

teach a three-credit course in consumer law.

10. I have extensive experience prosecuting cases related to consumer issues.

My firm, Kazerouni Law Group, APC, in which I am a principal, has

litigated over 1000 individual based consumer cases and litigated over 300

consumer class actions. These class actions were litigated in federal courts

in California, Colorado, Arkansas, Washington, Ohio, Nevada, Arizona,

Tennessee, Illinois and Texas, as well as California State Courts.

Approximately 95% percent of my practice concerns consumer litigation in

general, and approximately 50% percent of my class action practice

involves litigating claims under the TCPA. I have also been named Rising

Star by San Diego Daily Tribune in 2012, and Rising Star in Super Lawyers

Magazine in 2013, 2014 and 2015.

11. Throughout this litigation, I have strived to fairly, responsibly, vigorously

and adequately represent the putative class members in this action, and I

believe that I have been successful in that endeavor.

12. My co-counsel Hyde & Swigart is very experienced in the area of consumer

law, including the TCPA. I have and currently work with this firm in a

number of other class action cases as co-counsel, including cases under the

TCPA.

13. I have filed and litigated numerous consumer rights class actions based on

the TCPA and the federal and state consumer statutes in the past several

years. The following is a non-exhaustive list of consumer rights class

actions which I am or have been personally involved in:



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a. Hoffman v. Bank of America Corporation, 12-CV-00539-JAH-DHB

(S.D. Cal.) [Dkt. No. 67] (California class action settlement under Penal

Code 632 et seq., for claims of invasion of privacy. Settlement resulted

in a common fund in the amount of $2,600,000; finally approved on

November 6, 2014);

b. Malta, et al. v. Wells Fargo Home Mortgage, et al., 10-CV-1290 IEG

(BLM) (Served as co-lead counsel for a settlement class of borrowers in

connection with residential or automotive loans and violations of the

TCPA in attempts to collect on those accounts; obtained a common

settlement fund in the amount of $17,100,000; final approval granted in

2013);

c. Conner v. JPMorgan Chase Bank, et al., 10-CV-1284 DMS (BGS) (S.D.

Cal.) (Currently serving as co-lead counsel for the settlement class of

borrowers in connection with residential loans and TCPA violations

stemming from the collection of those accounts; Settlement of more than

$11,000,000; finally approved);

d. In Re: Midland Credit Management, Inc., Telephone Consumer

Protection Act Litigation, 11-md-2286-MMA (MDD) (S.D. Cal.)

(Counsel for a Plaintiff in the lead action, prior to the action being

recategorized through the multi-district litigation process; still actively

involved in the MDL litigation and settlement process);

e. In Re: Portfolio Recovery Associates, LLC Telephone Consumer

Protection Act Litigation, 11-md-02295-JAH (BGS) (Counsel for a

Plaintiff in the lead action, prior to the action being recategorized through

the multi-district litigation process; still actively involved in the MDL

litigation and settlement process);



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f. Arthur v. SLM Corporation, 10-CV-00198 JLR (W.D. Wash.)

(nationwide settlement achieving the then-largest monetary settlement in

the history of the TCPA: $24.15m; final approval granted in 2012);

g. Lo v. Oxnard European Motors, LLC, et al., 11-CV-1009-JLS-MDD

(S.D. Cal.) (achieving one of the highest class member payouts in a

TCPA action of $1,331.25; final approval granted in 2012);

h. Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., 10-01777-AJB-NLS

(S.D. Cal.) (approved as co-lead counsel and worked to obtain a national

TCPA class settlement where claiming class members each received

payment in the amount of $70.00; final approval granted in 2013);

i. Barani v. Wells Fargo Bank, N.A., 12-CV-02999-GPC-KSC (S.D. Cal.)

(Class action settlement under the TCPA for the sending of unauthorized

text messages to non-account holders in connection to wire transfers;

preliminarily approved for $1,033,361.95);

j. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-

GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion

for summary judgment was denied holding that a single call or text

message with the use of an ATDS may be actionable under the TCPA).

k. Olney v. Progressive Casualty Insurance Company, 2014 U.S. Dist.

LEXIS 9146 (S.D. Cal.); 13-CV-2058-GPC-NLS (Defendant’s motion to

dismiss or in the alternative to strike the class allegations was denied

finding that debt collection calls were not exempt from coverage under

the TCPA, case pending);

l. Iniguez v. The CBE Group, Inc., 2013 U.S. Dist. LEXIS 127066 (E.D.

Cal.); 13-CV-00843-JAM-AC (the court denying Defendant’s motion to

dismiss and to strike class allegations holding that the TCPA applies to

any call made to a cellular telephone with an ATDS);



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m. Wilkins v. HSBC Bank Nevada, N.A., Case No. 12-CV-04010-SI (N.D.

Ill.) (Finally approved for $39,975,000 on February 27, 2015);

n. Martin v. Wells Fargo Bank, N.A., 12-CV-06030-SI (N.D. Cal.);

o. Heinrichs v. Wells Fargo Bank, N.A., 13-CV-05434-WHA (N.D. Cal.);

p. Newman v. ER Solutions, Inc., 11-CV-0592H (BGS);

q. In Re Jiffy Lube International, Inc., MDL No. 2261 (finally approved for

$47,000,000.00);

r. Jaber v. NASCAR, 11-CV-1783 DMS (WVG) (S.D. Cal.);

s. Ridley v. Union Bank, N.A., 11-CV-1773 DMS (NLS) (S.D. Cal.);

t. Ryabyshchuk v. Citibank (South Dakota) N.A., et al, 11-CV-1236-IEG

(WVG);

u. Rivera v. Nuvell Credit Company LLC, 13-CV-00164-TJH-OP (E.D.

Cal);

v. Couser v. Comenity Bank, No. (S.D. Cal.) (preliminarily approved TCPA

class action with common fund of $8,475,000);

w. Fox v. Asset Acceptance, LLC, No. 14-cv-00734 -GW-FFM (C.D. Cal.)

(TCPA class action, settled and drafting preliminary approval papers);

x. Olney v. Job.com, Inc. et al., No. 12-cv-01724-LJO-SKO (E.D. Cal.);

y. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal.) (class

certification granted on September 5, 2014);

z. Newman v. AmeriCredit, 11-cv-03041-DMS-BLM (preliminarily

approved for $8,500,000 on November 26, 2014);

aa. Lemieux v. EZ Lube, Inc. et al., 12-cv-01791-BAS-JLB (S.D. Cal.)

(finally approved for $479,364 on December 8, 2014); and

bb. Knutson v. Schwan’s Home Service, Inc. et al., 12-cv-00964-GPC-DHB

(S.D. Cal.) (preliminarily approved for $ 2,535,280; final approval

hearing held).

14. I argued before the Ninth Circuit Court of Appeals in Knutson v. Sirius XM



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Radio, No. 12-56120 (9th Cir. 2014), which resulted in an order reversing

the district court’s decision to compel arbitration in a TCPA action.

15. An article that I wrote entitled, Principles of Litigating Consumer Class

Actions, was published in the February 2015 Edition of the Advocate.

16. Therefore, I believe that my experience and years in practice are sufficient

to justify my hourly billing rate in this case of $565 per hour.

II. OVERVIEW OF KAZEROUNI LAW GROUP, APC’S EFFORTS IN THIS ACTION

A. CONTINGENT NATURE OF ACTION

17. This action, filed on April 24, 2013, required Kazerouni Law Group, APC,

to spend time on this litigation that could have been spent on other matters.

At various times during the litigation of this class action, this lawsuit has

consumed my time as well as my firm’s resources. My firm has not been

paid anything for our work on this case since it was filed. It is my opinion

that law firms in such a position expect to receive a multiplier in cases such

as these because of the risk taken, the extent to which firms are unable to

take on other cases, the delay in getting paid and the costs we have to

advance.

B. KAZEROUNI LAW GROUP, APC’S LODESTAR

18. Kazerouni Law Group, APC, has maintained contemporaneous time records

since the commencement of this action. To date, I have incurred 246.30

hours of attorney time for this case, with a total lodestar of $139,159.50.1

This figure includes an additional estimated 30 hours for preparing the final

approval hearing papers and addressing any objections to the settlement,

1 The hourly rate sought and used in this lodestar calculation is $565. This figure does not include the hours worked by my associate, Jason A. Ibey, which I understand total 65.40 hours (which include an anticipated additional 8 hours) at a billing rate of $365 resulting in a lodestar of $23,871. See Declaration of Jason A. Ibey.



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appearing at the hearing and further overseeing the settlement

adminsitration. At my billing rate of $565 per hour in this case, the fees

incurred to date by my firm, including the hours of my assoicate Jason A.

Ibey, total $163,029.50 (see Declaration of Jason A. Ibey, filed

concurrently). Of course, if more than 30 hours are needed by me to finalize

the settlement, that would increase my lodestar.

19. It is my understanding that co-counsel Joshua B. Swigart at Hyde &

Swigart has incurred 184.50 hours of attorney time, which includes an

expected additional 45 hours for preparing the final approval hearing

papers, addressing any objections to the settlement, appearing at the hearing

and further overseeing the settlement adminsitration. Further, it is my

understanding that Mr. Swigart’s hourly billing rate is $595.00, and that

Hyde & Swigart has to date incurred fees in the amount of $109,777.502.

See Declaration of Joshua B. Swigart, filed concurrently.

C. KAZEROUNI LAW GROUP, APC’S COSTS

20. My firm has incurred litigation costs in this matter in the amount of

$4,092.89 for which my firm is seeking reimbursement. Also, it is my

understanding that Hyde & Swigart incurred and is seeking reimbursement

for $5,698.34 in litigation costs, which total costs are less than the $25,000

in costs authorized by the Settlement Agreement. SA § 5. Should my firm,

or Hyde & Swigart, incur costs through final approval of this action,

Plaintiff may seek reimbursement of such costs, which additional costs are

not expected to increase by more than $5,000.

D. REASONABLENESS OF HOURLY RATES

2 It is my understanding that this does not include work for paralegals at Hyde & Swigart, as the hours for paralegal time have been zeroed.



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21. Kazerouni Law Group, APC’s hourly rates are reasonable in respect to the

ranges charged by comparable law firms in the State of California.3

22. My hourly rate has increased over time, and different rates have been

approved based on the complex or non-complex nature of the litigation. In

the year 2012, the Hon. Anthony K. Battaglia approved an hourly rate of

$450 for me in Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., Case No.

10-CV-1777-AJB, Dkt. No. 42 (S.D. Cal. 2012). More recently, I have

been approved for $545 in Lemieux v. EZ Lube, Inc. et al., 12-cv-01791-

BAS-JLB (S.D. Cal.) [Dkt. No. 83]; Hoffman v. Bank of America, N.A., 12-

cv-00539-JAH-DHB (S.D. Cal.) [Dkt. No. 67]; and Zaw v. Nelnet Business

Solutions, Inc., 13-cv-05788-RS (N. D. Cal.) [Dkt. No. 39].

23. My firm reduced or elimated time reported where necessary to ensure that

Class Counsel are not seeking reimbursement for unecessary duplication of

efforts.

E. OVERVIEW OF WORK PERFORMED BY KAZEROUNI LAW GROUP, APC

24. To provide the Court with an overview of the work done by the Kazerouni

Law Group, APC, in this case, without requiring the review of the time

records themselves, I divided my work into specific phases that track the

progress of the litigation from our initial investigation through settlement.

25. Initial Case Investigation and Drafting the Complaints. I spent

approximately 18.4 hours on combined initial case investigation, research

and drafting the Complaints. Such investigation included the following:

Conducting factual and legal research into the merits of the TCPA claims;

discussing the facts with our client; conducting research on the Defendant

and whether Defendant had been investigated for any prior TCPA violations

3 See Survey of the National Law Journal in 2012, attached hereto as Exhibit A.



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of similar sort; drafting the Complaint, First Amended Complaint and

Second Amended Complaint, and reviewing Defendant’s responsive

pleadings.

26. Discovery. I spent approximately 41.8 hours on discovery matters, which

included the following: preparation of a discovery plan, review of the

parties’ initial disclosures and the document production; numerous written

and telephonic meet and confer conferences with opposing counsel to

resolve discovery disputes and respond to requests for extensions, preparing

deposition notices, interviewing Defendant’s representative, discussions

with objectors, and the taking the deposition of one of the objectors to the

Settlement in Sacramento.

27. Settlement Negotiations and Settlement Approval. I spent approximately

156.10 hours negotiating settlement and seeking the Court’s approval of the

settlement thereafter. My efforts included following: preparing for and/or

attending an Early Neutral Evaluation Conference, a Case Management

Conference, and a full-day mediation session; negotiating specific settlement

details subsequent to establishing general settlement terms through

mediation; reviewing the settlement agreement including claims and notice

forms, working on the motion for preliminary approval, and preparing the

present fee brief.

28. Anticipated Additional Hours Expended for Overseeing Settlement

Administration and Final Approval. I anticipate I will spend an additional

30 hours for preparing the final approval hearing papers, appearing at the

hearing, and overseeing the settlement administration. Additional time may

be needed should there be objections filed to the Settlement – two objections

were filed by Class Members and both were later withdrawn after Class

Counsel discussed the objections with the objectors.

III. INCENTIVE AWARD SOUGHT



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29. As set forth in the Motion, the Class Representative, Rafael David Sherman,

is applying for a modest incentive award of $1,500. Mr. Sherman has been

active in this litigation and provided critical information to their counsel,

which made the successful litigation of this matter possible. Mr. Sherman

assisted with the factual investigation in his claims, reviewed settlement

proposals and made himself available telephonically for the formal

mediation.

30. The incentive award sought in the amount of $1,500 for serving as class

representative is a modest request. SA § 6.

31. Based on the amount of work and involvement by Plaintiff, the small

incentive award of $1,500 in this case is justified.

IV. EXHIBITS

32. Attached hereto as Exhibit A is a true and correct copy of the National Law

Journal 2012 Billing Survey, accessed online on July 1, 2014.

33. Attached hereto as Exhibit B is a true and correct copy of the order granting

final approval of class action settlement in Wojcik v. Buffalo Bills Inc., Case

No. 8:12-cv-02414-SDM-TBM (M.D. Florida August 25, 2014).

34. Attached hereto as Exhibit C is a true and correct copy of the order granting

final approval in In re Capital One Telephone Consumer Protection Act

Litigation, MDL No. 2416 (N.D. Ill. Feb. 12, 2015).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on March 4, 2015, pursuant to the laws of the United States and the

State of California at Costa Mesa, California.

/s/ Abbas Kazerounian

Abbas Kazerounian


KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, SUITE D1, COSTA MESA, CALIFORNIA 92626

(800) 400-6808

PLAINTIFF’S EXHIBIT A

National Law Journal 2012 Billing Survey

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of

Rafael D. Sherman, Individually and On Behalf of All Others Similarly

Situated

v.

Kaiser Foundation Health Plan, Inc. a/k/a Kaiser Permanente,

13-CV-00981-JAH-JMA


Location Firmwide Billing Rate High

Firmwide Billing Rate Low

Firmwide Billing Rate Med

Partner Billing Rate High

Partner Billing Rate Low

Partner Billing Rate Med

Associate Billing Rate High

Associate Billing Rate Low

Associate Billing Rate Med

NLJ Billing Source

Notes

New Orleans $595.00 $120.00 $320.00 $595.00 $275.00 $375.00 $305.00 $175.00 $250.00 2012 NLJ Billing Survey

Riverside, CA

$625.00 $225.00 $390.00 $625.00 $310.00 $435.00 $390.00 $225.00 $250.00 2012 NLJ Billing Survey

Chicago $835.00 $105.00 $385.00 $835.00 $325.00 $560.00 $460.00 $190.00 $325.00 2012 NLJ Billing Survey

St. Louis $795.00 $200.00 $480.00 $795.00 $390.00 $553.00 $550.00 $200.00 $373.00 2012 NLJ Billing Survey

Detroit $750.00 $210.00 $313.00 $750.00 $290.00 $363.00 $425.00 $210.00 $234.00 2012 NLJ Billing Survey

Philadelphia $970.00 $235.00 $440.00 $970.00 $320.00 $513.00 $575.00 $235.00 $345.00 2012 NLJ Billing Survey

Detroit $585.00 $285.00 $280.00 $205.00 2012 NLJ Billing Survey

Copyright © ALM Media Properties, LLC. All rights reserved.

2012 NLJ Billing Survey

Year Firm Name Average FTE Attorneys

2012 Adams and Reese 267

2012 Best Best & Krieger 191

2012 Brinks Hofer Gilson & Lione

135

2012 Bryan Cave 884

2012 Butzel Long 140

2012 Cozen O'Connor 503

2012 Dickinson Wright 254

Copyright 2011 ALM Media properties, LLC. All rights reserved. 1 888-770-5647

www.alm.com


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Washington $1250.00 $210.00 $580.00 $1250.00 $560.00 $700.00 $570.00 $235.00 $460.00 2012 NLJ Billing Survey

Cincinnati $650.00 $130.00 $310.00 $650.00 $180.00 $380.00 $325.00 $130.00 $225.00 2012 NLJ Billing Survey

New York $1200.00 $105.00 $635.00 $1200.00 $550.00 $775.00 $760.00 $335.00 $530.00 2012 NLJ Billing Survey

Minneapolis $835.00 $200.00 $410.00 $835.00 $305.00 $525.00 $420.00 $200.00 $275.00 2012 NLJ Billing Survey

Chicago $685.00 $130.00 $415.00 $675.00 $395.00 $505.00 $465.00 $235.00 $305.00 2012 NLJ Billing Survey


Atlanta $565.00 $215.00 $410.00 $565.00 $350.00 $430.00 $395.00 $215.00 $305.00 2012 NLJ Billing Survey

Milwaukee $875.00 $200.00 $495.00 $875.00 $390.00 $570.00 $605.00 $200.00 $370.00 2012 NLJ Billing Survey


Cincinnati $525.00 $150.00 $295.00 $525.00 $205.00 $350.00 $275.00 $150.00 $205.00 2012 NLJ Billing Survey

Dallas $795.00 $230.00 $485.00 $795.00 $395.00 $565.00 $525.00 $235.00 $350.00 2012 NLJ Billing Survey

Newark, NJ $815.00 $285.00 $450.00 $815.00 $395.00 $500.00 $450.00 $285.00 $320.00 2012 NLJ Billing Survey

Rochester, NY


2012 Dickstein Shapiro 343

2012 Dinsmore & Shohl 412

2012 DLA Piper 3746

2012 Dorsey & Whitney 531

2012 Dykema Gossett 331

2012 Epstein Becker & Green 275

2012 Fisher & Phillips 237

2012 Foley & Lardner 874

2012 Fox Rothschild 471

2012 Frost Brown Todd 393

2012 Gardere Wynne Sewell 242

2012 Gibbons 200

2012 Harris Beach 189


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Syracuse, NY



Denver $695.00 $180.00 $360.00 $695.00 $275.00 $420.00 $400.00 $180.00 $268.00 2012 NLJ Billing Survey


St. Louis $890.00 $185.00 $355.00 $890.00 $240.00 $405.00 $445.00 $185.00 $235.00 2012 NLJ Billing Survey


Irvine, CA $760.00 $120.00 $380.00 $760.00 $425.00 $525.00 $420.00 $295.00 $330.00 2012 NLJ Billing Survey

Kansas City, MO


Phoenix $725.00 $225.00 $470.00 $725.00 $410.00 $520.00 $450.00 $225.00 $330.00 2012 NLJ Billing Survey


Oklahoma City


Cleveland $600.00 $185.00 $380.00 $595.00 $310.00 $440.00 $370.00 $185.00 $270.00 2012 NLJ Billing Survey

Morristown, NJ


2012 Hiscock & Barclay 165

2012 Hogan Lovells 2253

2012 Holland & Hart 394

2012 Holland & Knight 908

2012 Husch Blackwell 520

2012 Kelley Drye & Warren 303

2012 Knobbe Martens Olson & Bear

265

2012 Lathrop & Gage 290

2012 Lewis and Roca 183

2012 Locke Lord 540

2012 McAfee & Taft 183

2012 McDonald Hopkins 128

2012 McElroy, Deutsch, Mulvaney & Carpenter

286


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Atlanta $830.00 $215.00 $455.00 $830.00 $375.00 $550.00 $560.00 $215.00 $395.00 2012 NLJ Billing Survey

Milwaukee $650.00 $210.00 $380.00 $650.00 $245.00 $425.00 $350.00 $210.00 $265.00 2012 NLJ Billing Survey

Baltimore $700.00 $230.00 $405.00 $700.00 $320.00 $460.00 $350.00 $230.00 $300.00 2012 NLJ Billing Survey

Chattanooga, TN


Columbia, SC



Seattle $910.00 $220.00 $485.00 $910.00 $290.00 $560.00 $605.00 $220.00 $365.00 2012 NLJ Billing Survey

Kansas City, MO


Costa Mesa, CA

$650.00 $200.00 $650.00 $340.00 $425.00 $200.00 2012 NLJ Billing Survey



San Francisco


Toledo, OH $570.00 $180.00 $375.00 $570.00 $280.00 $390.00 $325.00 $210.00 $255.00 2012 NLJ Billing Survey

2012 McKenna Long & Aldridge 424

2012 Michael Best & Friedrich 196

2012 Miles & Stockbridge 213

2012 Miller & Martin 169

2012 Nelson Mullins Riley & Scarborough

414

2012 Patton Boggs 491

2012 Perkins Coie 747

2012 Polsinelli Shughart 503

2012 Rutan & Tucker 144

2012 Saul Ewing 219

2012 Schulte Roth & Zabel 371

2012 Sedgwick 343

2012 Shumaker, Loop & Kendrick

219


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Miami $635.00 $190.00 $380.00 $635.00 $250.00 $415.00 $370.00 $190.00 $263.00 2012 NLJ Billing Survey

Portland, OR $655.00 $200.00 $400.00 $655.00 $300.00 $463.00 $435.00 $200.00 $276.00 2012 NLJ Billing Survey


Boston $900.00 $320.00 $570.00 $900.00 $500.00 $670.00 $540.00 $320.00 $430.00 2012 NLJ Billing Survey


St. Louis $750.00 $200.00 $750.00 $330.00 $460.00 $200.00 2012 NLJ Billing Survey

Cleveland, OH



2012 Shutts & Bowen 212

2012 Stoel Rives 374

2012 Strasburger & Price 212

2012 Sullivan & Worcester 144

2012 Thompson & Knight 291

2012 Thompson Coburn 309

2012 Ulmer & Berne 178

2012 Winstead 258


www.alm.com


Location Partner Billing Rate High

Partner Billing Rate Low

Associate Billing Rate High

Associate Billing Rate Low

Associate Billing Rate Average

Partner Billing Rate Average

Firmwide Billing Rate Average

Associate Billing Rate Med

Partner Billing Rate Med

HoustonMemphis $595.00 $250.00 $315.00 $160.00 $228.00 $357.00 $311.00 225 345Riverside, CA $575.00 $275.00 $375.00 $205.00 $265.00 $417.00 $358.00 240 420BostonMinneapolis $625.00 $325.00 $305.00 $230.00Orlando $575.00 $295.00 $350.00 $180.00 $265.00 $435.00 $377.00 265 395St. Louis $795.00 $375.00 $540.00 $200.00 $356.00 $565.00 $475.00 360 553Detroit $700.00 $325.00 $425.00 $225.00 $274.00 $440.00New YorkTampa $815.00 $320.00 $380.00 $195.00 $262.00 $470.00 $397.00 265 470

Philadelphia $900.00 $305.00 $550.00 $225.00 $330.00 $510.00 $439.00 330 490

Parsippany $960.00 $380.00 $470.00 $235.00 $317.00 $537.00 $447.00 315 525

Detroit $600.00 $325.00 $320.00 $200.00

Washington $1000.00 $540.00 $545.00 $225.00 $435.00 $680.00 $560.00 465 670

Cincinnati $630.00 $150.00 $310.00 $130.00 $217.00 $373.00 $308.00 220 370

New York $1120.00 $530.00 $730.00 $320.00 $508.00 $747.00 $585.00 510 730

Minneapolis $810.00 $295.00 $465.00 $190.00 $294.00 $526.00 $426.00 275 525

Philadelphia $875.00 $375.00 $530.00 $225.00 $365.00 $575.00 $503.00 365 570

Detroit $665.00 $310.00 $395.00 $260.00 $309.00 $482.00 $406.00 305 485

New York $850.00 $350.00 $550.00 $195.00 $341.00 $519.00 $428.00 325 500

New York $730.00 $460.00 $440.00 $275.00 325 525

Atlanta

2011 Fitzpatrick, Cella, Harper & Scinto2011 Ford & Harrison

2011 Dykema Gossett2011 Epstein Becker & Green

2011 Dorsey & Whitney2011 Duane Morris

2011 Dinsmore & Shohl2011 DLA Piper

2011 Dickinson Wright2011 Dickstein Shapiro

2011 Cozen O'Connor2011 Day Pitney

2011 Cadwalader, Wickersham & Taft2011 Carlton Fields

2011 Bryan Cave2011 Butzel Long

2011 Briggs and Morgan2011 Broad and Cassel

2011 Best Best & Krieger2011 Bingham McCutchen

2011 Andrews Kurth2011 Baker, Donelson, Bearman, Caldwell &

2011 NLJ Billing SurveyCopyright © ALM Media Properties, LLC. All rights reserved.

Fiscal Year

Firm Name

Copyright 2011 ALM Media properties, LLC. All rights reserved. 1

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Philadelphia $725.00 $325.00 $455.00 $190.00 $297.00 $486.00 $413.00 295 483

Cincinnati $515.00 $205.00 $265.00 $150.00 $200.00 $340.00 $296.00 200 340

Dallas $815.00 $380.00 $500.00 $225.00 $325.00 $550.00 $435.00 320 550

Newark $725.00 $400.00 $475.00 $285.00 $380.00 $562.00 $505.00 320 505

Rochester $390.00 $275.00 $260.00 $160.00

Syracuse $750.00 $195.00 $350.00 $150.00 $207.00 $304.00 $269.00 195 265

Buffalo $685.00 $240.00 $420.00 $180.00 $234.00 $378.00 225 360

Washington $895.00 $300.00 $495.00 $175.00 $295.00 $530.00 $445.00 290 520

New York $990.00 $625.00 $695.00 $270.00 $533.00 $828.00 $633.00 540 800

Richmond

St. Louis $850.00 $225.00 $425.00 $175.00 $226.00 $395.00 $341.00 210 390

Charleston, WV $505.00 $255.00 $260.00 $155.00 $208.00 $319.00 $275.00 205 325

White Plains

New York $1080.00 $685.00 $705.00 $310.00 $519.00 $831.00 $661.00 525 835

New York $925.00 $480.00 $595.00 $275.00 $425.00 $634.00 $474.00 420 645

Irvine $735.00 $415.00 $495.00 $295.00 $346.00 $525.00 $439.00 345 500

Seattle $645.00 $340.00 $360.00 $225.00 $295.00 $460.00 $405.00 285 450

New York

Kansas City, MO $735.00 $275.00 $410.00 $205.00 $246.00 $390.00 $337.00 245 390

St. Louis $470.00 $270.00 $320.00 $150.00 $275.00

Roseland, NJ $895.00 $435.00 $660.00 $250.00 $400.00 $613.00 $478.00 390 595

Los Angeles $850.00 $540.00 $550.00 $215.00 $464.00 $676.00 $602.00 500 670

Morristown, NJ $575.00 $295.00 $325.00 $185.00 $250.00 $350.00 $245.00 235 375

Atlanta $800.00 $405.00 $510.00 $215.00 $374.00 $562.00 $472.00 375 540

Milwaukee $650.00 $245.00 $310.00 $205.00 $241.00 $413.00 $321.00

Chattanooga $610.00 $240.00 $275.00 $185.00 $215.00 $369.00 $313.00 215 375

Columbia, SC $850.00 $220.00 $350.00 $170.00 $255.00 $412.00 $318.00 250 400

Columbia, SC $550.00 $235.00 $265.00 $170.00

2011 Nelson Mullins Riley & Scarborough2011 Nexsen Pruet

2011 Michael Best & Friedrich 2011 Miller & Martin

2011 McElroy, Deutsch, Mulvaney & Carpenter2011 McKenna Long & Aldridge

2011 Lowenstein Sandler2011 Manatt, Phelps & Phillips

2011 Lathrop & Gage2011 Lewis, Rice & Fingersh

2011 Lane Powell2011 Latham & Watkins

2011 Kelley Drye & Warren2011 Knobbe Martens Olson & Bear

2011 Jackson Lewis2011 Kaye Scholer

2011 Husch Blackwell2011 Jackson Kelly

2011 Hughes Hubbard & Reed2011 Hunton & Williams

2011 Hodgson Russ2011 Holland & Knight

2011 Harris Beach2011 Hiscock & Barclay

2011 Gardere Wynne Sewell2011 Gibbons

2011 Fox Rothschild2011 Frost Brown Todd


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San Francisco

Washington $990.00 $410.00 $570.00 $240.00 $410.00 $659.00 $546.00 415 645

Philadelphia $825.00 $380.00 $460.00 $235.00 $344.00 $557.00

Seattle $875.00 $285.00 $590.00 $215.00 $368.00 $550.00 $462.00 545

New Orleans $465.00 $190.00 $245.00 $150.00 $189.00 $281.00 $236.00 190 275

Kansas City, MO $630.00 $275.00 $335.00 $205.00

Pittsburgh

Philadelphia $750.00 $350.00 $495.00 $245.00 $326.00 $502.00 $431.00 300 490

New York $935.00 $770.00 $675.00 $285.00 $608.00 $846.00 $615.00 580 840

San Francisco

Chicago $790.00 $355.00 $505.00 $225.00 $341.00 $528.00 $437.00 340 525

Los Angeles $860.00 $505.00 $635.00 $275.00

Toledo $555.00 $265.00 $320.00 $195.00 $252.00 $364.00 $345.00 250 375

Washington

Portland, OR $625.00 $320.00 $500.00 $195.00 $292.00 $451.00 $385.00 275 450

Dallas $630.00 $211.00 $332.00 $199.00 $250.00 $395.00 $363.00 238 397

Dallas $875.00 $440.00 $460.00 $250.00 $358.00 $594.00 $520.00 350 585

St. Louis $750.00 $315.00 $445.00 $195.00

Cleveland $585.00 $280.00 $390.00 $200.00 $260.00 $405.00 $316.00

Chicago $735.00 $295.00 $520.00 $265.00 $345.00 $500.00 $445.00 335 490

Philadelphia

Washington

Washington

Dallas $680.00 $365.00 $410.00 $215.00 $301.00 $477.00 $406.00

Chicago $1130.00 $580.00 $600.00 $350.00 $434.00 $713.00 $557.00 413 700

Louisville $500.00 $240.00 $275.00 $180.00 $220.00 $325.00 $312.00 235 375

2011 Winston & Strawn2011 Wyatt, Tarrant & Combs

2011 Wilmer Cutler Pickering Hale and Dorr2011 Winstead

2011 White and Williams2011 Wiley Rein

2011 Ulmer & Berne2011 Vedder Price

2011 Thompson & Knight2011 Thompson Coburn

2011 Stoel Rives2011 Strasburger & Price

2011 Shumaker, Loop & Kendrick2011 Steptoe & Johnson LLP

2011 Seyfarth Shaw2011 Sheppard, Mullin, Richter & Hampton

2011 Schulte Roth & Zabel2011 Sedgwick, Detert, Moran & Arnold

2011 Reed Smith2011 Saul Ewing

2011 Phelps Dunbar2011 Polsinelli Shughart

2011 Pepper Hamilton2011 Perkins Coie

2011 Orrick, Herrington & Sutcliffe2011 Patton Boggs


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Firmwide Billing Rate Med

Annual billable hours requirement

Variation on the billable hour

Percentage of your firm's revenue is obtained through variations on the billable hour (%)

Firm Billing Alternatives Percentage of your firm's revenue is obtained via alternative billing (%)

NLJ Billing Source

78 10 National Law Journal, December 19, 2011310 5 20 National Law Journal, December 19, 2011360 25 7 National Law Journal, December 19, 2011

5 5 National Law Journal, December 19, 201190 National Law Journal, December 19, 2011

350 National Law Journal, December 19, 2011460 20 National Law Journal, December 19, 2011

24 8 National Law Journal, December 19, 201127 25 National Law Journal, December 19, 2011

400 National Law Journal, December 19, 2011

410 21 National Law Journal, December 19, 2011

450 46 7 National Law Journal, December 19, 2011

National Law Journal, December 19, 2011










Notes


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(800) 400-6808

PLAINTIFF’S EXHIBIT B

Final Judgment and Order of Dismissal in Wojcik v. Buffalo Bills Inc., Case No. 8:12-cv-02414-SDM-TBM (M.D. Florida August 25, 2014).

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of


Situated

v.


13-CV-00981-JAH-JMA


UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JERRY WOJCIK, an individual, on

behalf of himself and all others similarly

situated,

Plaintiff,

v. CASE NO. 8:12-cv-2414-T-23TBM

BUFFALO BILLS, INC.,

Defendant.

___________________________________/

FINAL JUDGMENT AND ORDER OF DISMISSAL

The plaintiff moves (Doc. 77) for final approval of a class action settlement,

for an award of attorneys’ fees for the plaintiff’s counsel, for an award of expenses,

and for an incentive award. A “fairness hearing” on the settlement occurred on

August 20, 2014.

1. An April 17, 2014 order (Doc. 73) grants preliminary approval of the

settlement and certifies a settlement class* that comprises:

All Persons in the United States and its territories who during the

Class Period (from the period of September 12, 2008 until the date

of a final Settlement Agreement) subscribed to the Text Service by

texting the word “BILLS” from their cellular telephone to SMS

short code 64621 in order to receive SMS text message alerts from

Defendant during the Class Period and who received text messages

from Defendant within a Weekly period (a period of seven (7) days

* The terms and phrases in this order retain the meaning ascribed to them in the settlement

agreement.

Case 8:12-cv-02414-SDM-TBM Document 79 Filed 08/25/14 Page 1 of 4 PageID 2043


measured from 12:00:01 a.m. Sunday to 11:59:59 p.m. Saturday)during the Class Period where the number of text messages sent aspart of the Text Service exceeded five (5) text messages in thatWeek.

2. Excluded from the settlement class are (1) the defendant, Buffalo Bills,

Inc. (“BBI”), and BBI’s agents, subsidiaries, parents, successors, and predecessors;

(2) any entity in which BBI has a controlling interest; (3) BBI’s current and former

employees, officers, and directors; (4) the attorneys, other legal representatives,

successors, and assigns of any excluded person; and (5) any person whose claim

against the defendant has been adjudicated or released in another action.

3. The settlement is approved because the settlement is fair, reasonable, and

adequate and because the settlement is in the best interests of the settlement class,

which is confirmed by the legal and factual composition of this action, the

arm’s-length negotiations that preceded the settlement, the maturity of the litigation,

and participation by both experienced and skillful counsel for the parties and an

experienced and skillful mediator. The plaintiff and the class counsel adequately

represented the settlement class in entering and implementing the settlement

agreement. Accordingly, the settlement agreement is APPROVED. This order

incorporates by reference (1) the settlement agreement and (2) the findings of fact

and conclusions of law announced during the August 20, 2014 fairness hearing.

4. An April 17, 2014 order preliminarily approves, as the best notice

practicable under the circumstances, the parties’ plan to notify the settlement class.

- 2 -



Now successfully implemented, the notice plan satisfies the requirements of Rule 23,

Federal Rules of Civil Procedure.

5. In accord with the Class Action Fairness Act of 2005 (“CAFA”), 28

U.S.C. § 1715, BBI properly and timely notified state and federal officials of the

settlement agreement. BBI’s notice and the accompanying material comply with the

applicable requirements of CAFA.

6. On the effective date of the settlement agreement, the plaintiff and each

settlement class member fully, finally, completely, and forever release, acquit, and

discharge each released party from each released claim. The settlement agreement

binds each settlement class member not excluded from the settlement class. Each

settlement class member not excluded from the settlement class is permanently

barred and enjoined from filing, commencing, or prosecuting and from intervening

or participating in (as a class member or otherwise) any other action in any

jurisdiction, if the action is based on, or arises from, a released claim.

7. As an award of attorneys’ fees, the defendant must pay the plaintiff’s

counsel $562,500.

8. BBI must pay the plaintiff an incentive award of $5,000 in consideration

(1) of his assuming the risk of litigation and (2) of his contributing to the result

achieved for the settlement class.

9. In good faith and with the application of best efforts, the parties must

deliver the BBI debit cards to eligible members of the settlement class no later than

- 3 -



November 1, 2014. If either party appeals or causes a tolling of the time to appeal,

the parties must deliver the BBI debit cards to eligible members of the settlement

class within sixty days after this order becomes final (for example, by expiration of

the time to appeal or by receipt of the mandate of the appellate court).

10. Except as specified in this order, the parties must bear their own costs

and attorneys’ fees.

11. Neither the settlement agreement nor the settlement itself nor the acts,

statements, documents, or proceedings pertaining to the settlement agreement

admits, concedes, or evidences any fault, wrongdoing, or liability by a party; the

validity of any claim or defense; the existence or amount of damages; or the

recovery, if any, that might have resulted from a trial.

12. Until the settlement agreement is wholly performed, jurisdiction is

retained over the parties and the action (a) to implement, enforce, and administer the

settlement agreement and (b) to resolve any dispute concerning the composition of

the settlement class or the entitlement to a benefit under the settlement agreement.

ORDERED in Tampa, Florida, on August 25, 2014.

- 4 -




(800) 400-6808

PLAINTIFF’S EXHIBIT C

Order granting final approval of class action settlement in In re Capital One Telephone Consumer Protection Act Litigation, MDL No. 2416

(N.D. Ill. Feb. 12, 2015).

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of


Situated

v.


13-CV-00981-JAH-JMA


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE CAPITAL ONE TELEPHONE CONSUMER PROTECTION ACT LITIGATION,

) ) ) )

Master Docket No. 12 C 10064 MDL No. 2416

BRIDGETT AMADECK, et al.,

v. CAPITAL ONE FINANCIAL CORPORATION, and CAPITAL ONE BANK (USA), N.A.

) ) ) ) ) ) ) )

No. 12 C 10135

NICHOLAS MARTIN, et al.,

v. LEADING EDGE RECOVERY SOLUTIONS, LLC, and CAPITAL ONE BANK (USA), N.A.

) ) ) ) ) ) ) )

No. 11 C 5886

CHARLES C. PATTERSON,

v. CAPITAL MANAGEMENT SERVICES, L.P. and CAPITAL ONE BANK (USA), N.A.

) ) ) ) ) ) ) )

No. 12 C 1061

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

The three above-captioned, nationwide class actions were filed against Capital One, its

subsidiaries, and its Participating Vendors (collectively, “Defendants”),1 as a result of the

1 Capitol One includes defendants Capital One Bank (USA), N.A., Capital One, N.A., Capital One Financial Corporation, Capital One Services, LLC, and Capital One Services II, LLC. The Participating Vendors include defendants Capital Management Services, LP (“CMS”), Leading Edge Recovery Solutions, LLC (“Leading Edge”), and AllianceOne Receivables Management, Inc. (“AllianceOne”).

Case: 1:12-cv-10064 Document #: 329 Filed: 02/12/15 Page 1 of 43 PageID #:4218Case 3:13-cv-00981-JAH-JMA Document 44-5 Filed 03/04/15 Page 2 of 44

Defendants’ allegedly using automatic telephone dialing systems or artificial or prerecorded

voice messages to contact consumers’ cell phones without prior express consent, in alleged

violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A). (Dkt.

No. 120.) On December 10, 2012, the United States Judicial Panel on Multidistrict Litigation

(the “JPML”) selected this court to coordinate pursuant to 28 U.S.C. § 1408 the pretrial

proceedings in these three class actions, along with other individual lawsuits filed throughout the

United States. (Dkt. No. 1.) The cases filed outside this district were transferred to this district

and assigned to this court’s calendar. On February 28, 2013, Plaintiffs filed a Consolidated

Master Class Action Complaint (“Master Complaint”) superseding the complaints filed in the

three class actions. (Dkt. No. 19.) On June 13, 2014, after reaching a settlement in principle,

Plaintiffs filed an Amended Consolidated Master Class Action Complaint (“Amended Master

Complaint”). (Dkt. No. 120 (“Am. Compl.”).)

On July 29, 2014, the court granted Plaintiffs’ unopposed request for preliminary

approval of class settlement,2 (Dkt. No. 129), and entered an Order (Dkt. No. 137) conditionally

certifying a settlement class, preliminarily approving the class action settlement, approving the

notice plan, and appointing a claims and notice administrator. Since then, the parties have filed

memoranda in support of Plaintiffs’ motion (Dkt. No. 260) for final approval of the class action

settlement. Class Counsel, consisting of the attorneys who collectively represent the class, have

also filed a motion for approval of attorneys’ fees and for service awards to the class

representatives (the “Named Plaintiffs”). (Dkt. No. 175.) Fourteen people out of the more than

2 Plaintiffs never filed a proper motion for preliminary approval, although they filed two memoranda in support of such a motion. (Dkt. Nos. 121, 129.) They captioned the memoranda as “motions” in the docket text, but the actual headings of the filings reveal that neither is a motion, merely a memorandum. The court ignored Plaintiffs’ oversight in light of the need for a standalone order (Dkt. No. 137) granting preliminary approval.

- 2 -


17 million settlement class members filed briefs or statements in opposition to the Amended

Settlement Agreement and Release (“Settlement Agreement”) (Dkt. No. 131 Ex. 1) and Class

Counsel’s requested fee award. The court, after notice was provided, conducted a fairness

hearing on January 15, 2015 to allow any class members who expressed the desire to address the

court regarding the settlement to do so. (Dkt. No. 320.)

For the reasons explained below, the court grants the motion for final approval of the

class action settlement, (Dkt. No. 260), because under the circumstances and the law the

settlement reached in these three consolidated class action cases is fair, reasonable, and adequate.

The court grants in part and denies in part Class Counsel’s motion for approval of attorneys’

fees, and grants Class Counsel’s requested incentive awards to the five Named Plaintiffs in the

amount of $5,000 each. (Dkt. No. 175.)

BACKGROUND

I. History of the Litigation

In 1991, Congress enacted the TCPA “to address telephone marketing calls and certain

telemarketing practices that Congress found to be an invasion of consumer privacy.” Jamison v.

First Credit Servs., 290 F.R.D. 92, 96 (N.D. Ill. 2013) (Kendall, J.). The “certain telemarketing

practices” that drew Congress’s legislative action were automatic telephone dialing systems and

prerecorded voices. 47 U.S.C. § 227. The two technologies were relatively new in 1991 and

greatly improved telemarketers’ ability to contact consumers on their phones. In response to the

“national outcry over the explosion of unsolicited telephone advertising,” Congress passed the

TCPA. See 137 Cong. Rec. 30,817 (1991) (statement of Senator Pressler). The TCPA prohibits

callers from using “any automatic telephone dialing system or an artificial or prerecorded voice”

to make any non-emergency call to a cell phone, unless they have the “prior express consent of

the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). The penalties Congress enacted to answer the

- 3 -


public outcry are harsh: the TCPA imposes on callers statutory damages of $500 per call, which

can be trebled if the court finds the violation to have been willful or knowing. 47 U.S.C. §

227(b).

The calls at issue in these three consolidated class actions were made for the decidedly

non-emergency purpose of debt collection. According to the Amended Master Complaint,

between January 18, 2008 and June 20, 2014, Capitol One or one of its Participating Vendors (on

behalf of Capital One) called class members’ cell phones using an automatic telephone dialing

system or an artificial or prerecorded voice in connection with an attempt to collect on a credit

card debt. (Am. Compl. ¶ 52.)

After Plaintiffs filed their Master Complaint on February 28, 2013, the parties engaged in

six months of class-wide discovery “sufficient to engage in meaningful settlement discussions.”

(Dkt. No. 129 at 13.) On July 2, 2013, November 4, 2013, and January 29, 2014, the parties

participated in mediation sessions with retired United States Magistrate Judge Edward A.

Infante. The parties also spoke with Judge Infante by phone on two other occasions. (Id.) Capital

One and Plaintiffs agreed thereafter to a settlement in February 2014. (Id. at 14.) The

Participating Vendors agreed to join the settlement in the months thereafter. (Id.)

On June 13, 2014, Plaintiffs filed their request for an order certifying the proposed class

for settlement purposes, preliminarily approving the settlement agreement, approving the notice

plan, ordering the dissemination of notice as set out in the Settlement Agreement, and appointing

BrownGreer as the Notice and Claims Administrator. (Dkt. No. 121.) Plaintiffs filed an amended

motion seeking the same relief on July 13, 2014 and, on July 29, 2014, the court granted

Plaintiffs’ amended motion. (Dkt. No. 137.)

On August 12, 2014, BrownGreer began implementing the parties’ notice plan, which

entailed: (1) sending 12,342,000 summary notices via email to all potential class members who

- 4 -


had email addresses reflected in Capital One’s records; (2) mailing 4,303,218 postcard notices

via first class mail to class members who had opted out of receiving email from Capital One,

who did not have email addresses on file, or whose emails were undeliverable; (3) running

internet banner notices on 40 websites BrownGreer determined class members were likely to

visit; (4) establishing a settlement website and toll-free information telephone number dedicated

to answering telephone inquiries; and (5) providing notice of the settlement to the officials

designated pursuant to Class Action Fairness Act, 28 U.S.C. § 1715. (Dkt. No. 264.)

BrownGreer provided a thorough summary of its execution of the notice plan in two

separate declarations provided to the court. (Dkt. Nos. 264, 305.) Here, it is sufficient to note that

the notice plan reached 15,983,613 known, unique settlement class members, a figure that

represents 96.03% of the known settlement class and 91.22% of the estimated total settlement

class.3 (Dkt. No. 305 ¶ 6.) Despite the robust and effective notice plan, only 1,378,534 unique

claimants—7.87% of the estimated class—filed claims with the administrator by the filing

deadline. (Id. ¶ 14.) 462 class members have submitted valid opt-out requests and another 103

claimants have submitted opt-out requests that are invalid, either because they are incomplete or

untimely. (Id. ¶ 8.) BrownGreer estimated that as of December 23, 2014 its total notice and

administration costs were $5,093,000. (Id. ¶ 16.) No updated figures have been provided to the

court.

3 The parties estimate that approximately 5% of the settlement class is unknown to Capital One or Plaintiffs. (Dkt. No. 264 ¶ 11.)

- 5 -


II. The Settlement Agreement

The important provisions of the Settlement Agreement provide for both monetary and

injunctive relief to class members.

The Settlement Agreement defines the settlement class as follows:

All persons within the United States who received a non-emergency telephone call from Capital One’s dialer(s) to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice in connection with an attempt to collect on a credit card debt from January 18, 2008 through June 20, 2014, and all persons within the United States who received a non-emergency telephone call from a Participating Vendor’s dialer(s) made on behalf of Capital One to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice in connection with an attempt to collect on a credit card debt from February 28, 2009, through June 20, 2014.

(Settlement Agreement § 2.39.) Plaintiffs estimate that the class includes 17,522,049 members.4

The Settlement Agreement requires Defendants to establish a non-reversionary settlement

fund of $75,455,099.5 (Settlement Agreement § 2.42.) After subtracting notice and

administration costs ($5,093,000), Class Counsel’s requested service awards for the five Named

Plaintiffs ($25,000), and Class Counsel’s requested fee award ($22,636,530)—all of which will

be paid out of the settlement fund—the value of the settlement to class members is $47,700,569.

(Dkt. No. 305.); see Pearson v. NBTY, Inc., 772 F.3d 778, 780-81 (7th Cir. 2014) (citing Redman

v. RadioShack Corp., 768 F.3d 622, 630 (7th Cir. 2014) (holding notice costs, administration

costs, and attorneys’ fees are not part of the value received from the settlement by class

members). If all 17,522,049 class members had filed a claim, they would have received $2.72

4 The court calculated this figure using BrownGreer’s number of contacted class members, 15,983,613, in conjunction with its assessment that 15,983,613 represents 91.22% of the total class. (See Dkt. No. 305 ¶ 6.)

5 The settlement fund is actually $75,455,098.74. For the sake of simplicity, the court has rounded the numbers to the closest dollar, as it has done with the other figures discussed in this opinion.

- 6 -


each. But because only a fraction of class members filed a claim, as is often the case in consumer

class actions, the 1,378,534 timely claimants will receive at least $34.60 each, and possibly more

if some claimants fail to cash their settlement checks within 210 days, allowing for a second pro

rata distribution to class members who filed a claim and deposited their settlement checks on

time. (Settlement Agreement § 7.04(e).) If, following the second pro rata distribution, there

remain undeposited settlement checks, the remainder of the settlement fund will go to a cy pres

recipient. The Settlement Agreement does not identify the recipient of the cy pres award because

the parties decided to wait until after the claims period to gauge the potential size of any cy pres

award. (Settlement Agreement § 7.04(f).) In their response to objectors, however, Class Counsel

agreed to name the Electronic Frontier Foundation. (Dkt. No. 269 at 33.)

The Settlement Agreement also requires Capital One to institute a protocol under which it

uses an automatic dialer to call a customer’s (or debtor’s) cell phone number only in cases where

the individual provided the cell phone number on his or her credit application. Capital One will

further refrain from calling a cell phone number unless either the cell phone number is linked to

the customer’s name based on third party research or Capital One has made contact with the

customer on the cell phone number within the past 90 days. (Dkt. No. 262 ¶ 21.) As discussed

below, this change would bring Capital One’s use of an automatic dialer within Plaintiffs’

interpretation of the statutorily undefined term “prior express consent,” which is excluded from

the prohibitions of the TCPA, 47 U.S.C. §227(b)(1).

The court, at final approval hearing on January 15, 2015, (Dkt. No. 320), heard from

Class Counsel, counsel for Capital One, and counsel for objector Jeffrey Collins. Although the

court invited specific objectors by name and anyone else present in the courtroom to speak, no

- 7 -


other objector addressed the court even though some of the objectors had previously indicated

their intent to address the court at the final approval hearing.6

LEGAL STANDARDS

I. Approval of a Proposed Settlement in Class Actions

A court may approve a settlement that would bind class members only if, after proper

notice and a public a hearing, the court determines that the proposed settlement is “fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(3). Under Seventh Circuit law, a district court

must, in evaluating the fairness of a settlement, consider “the strength of plaintiffs’ case

compared to the amount of defendants’ settlement offer, an assessment of the likely complexity,

length and expense of the litigation, an evaluation of the amount of opposition to settlement

among affected parties, the opinion of competent counsel, and the stage of the proceedings and

the amount of discovery completed at the time of settlement.” Synfuel Techs., Inc. v. DHL

Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) (quoting Isby v. Bayh, 75 F.3d 1191,

1199 (7th Cir. 1996)).

“The ‘most important factor relevant to the fairness of a class action settlement’ is the

first one listed: ‘the strength of plaintiff’s case on the merits balanced against the amount offered

in the settlement.’” Synfuel, 463 F.3d at 653 (quoting In re Gen. Motors Corp. Engine

Interchange Litig., 594 F.2d 1106, 1132 (7th Cir. 1979)). Furthermore, “[i]n conducting this

analysis, the district court should begin by ‘quantifying the net expected value of continued

6 The court originally set the final approval hearing for December 9, 2014, but rescheduled the hearing for January 15, 2015 after granting Collins’ request for additional discovery. Class Counsel informed all objectors who had previously stated a desire to appear of the date change and, out an abundance of caution, the court’s clerk waited in the courtroom designated for the hearing on December 9 to record the appearance of any objector who mistakenly appeared on that date. No objector came to the designated courtroom on December 9, 2014.

- 8 -


litigation to the class.’ To do so, the court should ‘estimate the range of possible outcomes and

ascribe a probability to each point on the range.’” Id. (quoting Reynolds v. Beneficial Nat’l Bank,

288 F.3d 277, 284–85 (7th Cir. 2002)).

“Federal courts naturally favor the settlement of class action litigation.” Isby, 75 F.3d at

1196. Nevertheless, the Seventh Circuit has warned that “the structure of class actions under

Rule 23 . . . gives class action lawyers an incentive to negotiate settlements that enrich

themselves but give scant reward to class members, while at the same time the burden of

responding to class plaintiffs’ discovery demands gives defendants an incentive to agree to early

settlement that may treat the class action lawyers better than the class.” Thorogood v. Sears,

Roebuck & Co., 627 F.3d 289, 293 (7th Cir. 2010) (emphasis omitted). District courts must

therefore “exercise the highest degree of vigilance in scrutinizing proposed settlements of class

actions.” Synfuel, 463 F.3d at 652. This court has endeavored to do that.

II. Attorneys’ Fees in Class Actions

“In a certified class action, the court may award reasonable attorney’s fees . . . that are

authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). In determining a

reasonable fee, the court “must balance the competing goals of fairly compensating attorneys for

their services rendered on behalf of the class and of protecting the interests of the class members

in the fund.” Skelton v. Gen. Motors Corp., 860 F.2d 250, 258 (7th Cir. 1988), cert. denied, 493

U.S. 810 (1989). To determine the reasonableness of the sought-after fee in a common-fund case,

“courts must do their best to award counsel the market price for legal services, in light of the risk

of nonpayment and the normal rate of compensation in the market at the time.” In re Synthroid

Mktg. Litig., 264 F.3d 712, 718 (7th Cir. 2001) (Synthroid I). The probability of success at the

outset of the litigation is relevant to this inquiry. See Florin v. Nationsbank of Ga., N.A., 34 F.3d

560, 565 (7th Cir. 1994).

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In Synthroid, the Seventh Circuit held that the “market rate for legal fees depends in part

on the risk of nonpayment a firm agrees to bear, in part on the quality of its performance, in part

on the amount of work necessary to resolve the litigation, and in part on the stakes of the case.”

Synthroid I, 264 F.3d at 721. The Seventh Circuit has further explained that “[t]he object in

awarding a reasonable attorney’s fee . . . is to give the lawyer what he would have gotten in the

way of a fee in arm’s length negotiation, had one been feasible.” In re Cont’l Ill. Sec. Litig., 962

F.2d 566, 572 (7th Cir. 1992). See also In re Trans Union Corp. Privacy Litig., 629 F.3d 741,

744 (7th Cir. 2011) (recognizing that “[s]uch [an] estimation is inherently conjectural”).

The Federal Rules of Civil Procedure allow the court, in a certified class action, to

“award reasonable . . . nontaxable costs that are authorized by law or by the parties’ agreement.”

Fed. R. Civ. P. 23(h). The Seventh Circuit has instructed that district courts must exercise their

discretion to “disallow particular expenses that are unreasonable whether because excessive in

amount or because they should not have been incurred at all.” Zabkowicz v. W. Bend Co., Div. of

Dart Indus., Inc., 789 F.2d 540, 553 (7th Cir. 1986) (quoting Henry v. Webermeier, 738 F.2d

188, 192 (7th Cir. 1984)).

ANALYSIS

I. Approval of the Class Settlement in This Litigation

Applying the five factors identified in Synfuel, the court concludes that the settlement is

“fair, reasonable, and adequate,” and therefore meets the requirements of Rule 23.

A. Potential of Class Members’ Recovery through Continued Litigation Balanced Against Settlement Amount Offered

As noted above, “[t]he most important factor” in determining whether a proposed

settlement satisfies Rule 23 is the “strength of [Plaintiffs’] case on the merits balanced against

the amount offered in the settlement.” Synfuel, 463 F.2d at 653 (citations omitted). The

Settlement Agreement, as it stands, requires Defendants to pay $75.5 million into the settlement

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fund out of which all eligible class members who made a timely claim will receive their pro rata

share, and maybe more if fellow claimants are delinquent in depositing their checks. At the time

the court granted preliminary approval, Defendants stated that the settlement constituted the

largest cash sum in the 22-year history of the TCPA, (Dkt. No. 129 at 7). That fact, though true,

is slightly deceiving because the size of the settlement amount is attributable mainly to the large

size of the class—17.5 million people. The recovery per class member—excluding

administrative costs, Named Plaintiff awards, and attorneys’ fees—is a relatively diminutive

$2.72. The court does not have the necessary data to compare this proposed settlement to other

TCPA actions based on the recovery per class member. There are, however, a number of

benchmark settlements to which the court can compare the recovery per claimant. The recovery

per claimant here is $34.60. That number falls within the range of recoveries in other TCPA

actions but, as Judge Davila noted in discussing a similarly sized settlement last year, it falls on

the “lower end of the scale.” Rose v. Bank of Am. Corp., Nos. 11 C 2390 & 12 C 4009, 2014 WL

4273358, at *11 (N.D. Cal. Aug. 29, 2014). The settlement also falls far short of the $500

statutory recovery available for each phone call, of which there were many: Capital One or its

Participating Vendors made approximately 1.9 billion phone calls in alleged violation of the

TCPA. (Dkt. No. 324 at 11:3.) So if Plaintiffs were to litigate their claims successfully through

trial, Capital One would be on the hook for a minimum of $950 billion. Moreover, Plaintiffs’

recovery could possibly be as high as $2.85 trillion if Plaintiffs proved the violations were

knowing or willful.

But a settlement is a compromise, and courts need not—and indeed should not—“reject a

settlement solely because it does not provide a complete victory to plaintiffs.” In re AT&T

Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 347 (N.D. Ill. 2010) (St. Eve, J.).

This is especially true when complete victory would most surely bankrupt the prospective

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judgment debtor. It also bears mention that the $34.60 per claimant recovery in this case does not

seem so miniscule in light of the fact that class members did not suffer any actual damages

beyond a few unpleasant phone calls, which they received ostensibly because they did not pay

their credit card bills on time.

More importantly, $34.60 per claimant is not insignificant considering Capital One’s

counsel’s estimate that Plaintiffs will recover nothing through continued litigation. (Dkt. No.

267.) The court recognizes that Plaintiffs would indeed face myriad hurdles by proceeding to

trial.

First, at a trial, Plaintiffs would have the burden to effectively rebut Capital One’s chief

defense that the class members’ consented to be contacted on their cell phones. Capital One

argues that it obtained consent to call from each class member because every version of Capital

One’s standard cardholder agreement contained provisions expressing that Plaintiffs consented to

receive calls through an autodialing technology. (Dkt. No. 267 at 2.) Plaintiffs admit that they

agreed to the terms of their cardholder agreements, but argue they did not agree to be contacted

“in violation of the TCPA.” (Dkt. No. 262.) Many class members, however, even provided their

cell phone numbers to Capital One as their primary contact numbers. (Id.) Under an FCC order

in 2008 implementing the TCPA, autodialed collection calls to “wireless numbers provided by

the called party in connection with an existing debt are made with the ‘prior express consent’ of

the called party,” and are therefore permissible. In Re Rules and Regulations Implementing the

Telephone Consumer Prot. Act of 1991, 23 F.C.C.R. 559 ¶ 9 (2008) (“2008 TCPA Order”); 47

U.S.C. § 227(b)(1)(A)(iii). The FCC’s same 2008 TCPA Order, however, states that “prior

express consent is deemed to be granted only if the wireless number was provided by the

consumer to the creditor, and that such number was provided during the transaction that resulted

in the debt owed.” 2008 TPCA Order ¶ 10. Plaintiffs interpret the FCC’s 2008 TCPA Order to

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mean that the cell phone number must have been provided during the origination of the credit

relationship, i.e., during the transaction. (Dkt. No. 262 at 21.) As United States District Judge

J.P. Stadtmueller commented in a recent opinion, however, the 2008 TCPA Order is “far from

clear.” Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008, at *8 (E.D. Wis. Nov. 20,

2014). Furthermore, in this district, the only district judge to have addressed the issue held that a

caller is entitled to summary judgment against a TCPA claim when it can show the plaintiff

provided a cell phone number as a contact number. See Greene v. DirecTV, No. 10 C 117, 2010

WL 4628734, at *3 (N.D. Ill. Nov. 8, 2010) (Kocoras, J.). The parties’ disparate interpretations

of the 2008 TCPA Order are reflective of the split opinion among practitioners and the courts, a

split that at least injects uncertainty into this litigation and will continue to warrant caution by

plaintiffs and defendants until clearer guidance is provided. See, e.g., Baird v. Sabre, Inc., 995 F.

Supp. 2d 110, 1006 (C.D. Cal. 2014) (noting the FCC’s series of TCPA Orders are not “model[s]

of clarity”).

Second, should Plaintiffs proceed to trial, there would be manageability concerns that

may pose serious obstacles to class certification, thus depriving Plaintiffs of the benefits of a

class action. Rule 23(b)(3) requires that “questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a class action is

superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.

R. Civ. P. 23(b)(3). In assessing predominance, a court must analyze “the likely difficulties in

managing a class action,” id. 23(b)(3)(D), which “encompass[ ] the whole range of practical

problems that may render the class action format inappropriate for a particular suit.” Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 164 (1974). Identifying consenting class members and the

precise timing and nature of that consent would require Capital One to locate documents and

analyze call recordings for nearly all of the 17.5 million class members. These individual

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determinations do not always comport with Rule 23(b)(3)’s manageability requirement and have

caused some courts to reject class certification on numerous occasions. See, e.g., Balschmiter,

2014 WL 6611008, at *19-20; see also Jamison, 290 F.R.D. at 107 (denying certification of

TCPA litigation where “parties would need to scour [defendant’s] records” to determine

consent).

Third, without the prompt and final resolution a settlement provides, Plaintiffs run the

risk that forthcoming FCC orders may extinguish their claims. There are three sets of petitions

currently before the FCC, all of which would eliminate or reduce Capital One’s TCPA liability in

this case. The first is the FCC’s definition of an autodialer. Although the TCPA defines an

autodialer as “equipment which has the capacity (A) to store or produce telephone numbers to be

called, using a random or sequential number generator; and (B) to dial such numbers,” 47 U.S.C.

§ 227(a)(1), the FCC has expanded the definition to cover predictive dialers that can “store or

produce telephone numbers,” even if they do not “us[e] a random or sequential number

generator.” See In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991,

18 F.C.C.R. 14014, 14091-93 (2003). The FCC is considering petitions seeking to exclude from

the TCPA predictive dialers used for non-telemarketing purposes, such as debt collection. (See

Dkt. No. 267 (collecting petitions).) The second and, perhaps, more pressing set of petitions to

the FCC ask the FCC to clarify how and when consent may be expressed by consumers. See

Michael O’Rielly, FCC Commissioner, TCPA: It is Time to Provide Clarity, FCC Blog (Mar. 25,

2014) (available at http://www.fcc.gov/blog/tcpa-it-time-provide-clarity) (asserting that “the

FCC needs to address this inventory of petitions as soon as possible,” and “answer . . . whether

consent can be inferred from consumer behavior or social norms”). The final set of petitions

seeks to clarify that a caller does not violate the TCPA when it makes autodialed calls to another

cell phone subscriber by mistake. (See Dkt. No. 267 (collecting petitions).) If the FCC were to

- 14 -


issue orders favoring callers in connection with any of the issues discussed above, Plaintiffs

claims would be completely barred or materially limited.

In light of Capital One’s potentially meritorious defenses and the legal uncertainty

concerning the application of the TCPA, the court concludes that Plaintiffs would probably face

an uphill battle proceeding to trial and, once there, obtaining relief. The settlement provides

value that is fair considering the very real possibility that Plaintiffs may recover nothing if they

were to proceed further with the litigation.

B. Likely Complexity, Length and Expense of Litigation

In Synfuel, the Seventh Circuit instructed that the likely complexity, length, and expense

of continued litigation are relevant factors district court should consider in determining whether a

class action settlement satisfies Rule 23. Synfuel, 463 F.3d at 653. All of these factors when

considered in this litigation strongly weigh in favor of approval of the proposed settlement.

Although the parties have conducted limited discovery for the purpose of evaluating settlement,

they would need to engage in significant additional discovery of Capital One’s millions (or

billions) of call records, if the litigation were to proceed further. This would likely require each

side to retain experts to analyze the mountains of data. There would be significant motion

practice, and any judgment in favor of Plaintiffs would be further delayed by any appeal taken

from the entry of a final judgment.

C. Scant Opposition to Settlement

The Seventh Circuit has held that the amount of opposition to a settlement among

affected parties is yet another factor district courts should consider in deciding whether to

approve a class action settlement. Synfuel, 463 F.3d at 653. Only 565 class members have

requested to be excluded from the settlement, representing approximately 0.0032% of all class

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members.7 Of the approximately, 17.5 million class members, the court has received 14 timely

objections to the Settlement Agreement and only 9 of those objections take issue with the value

of the settlement; the other 5 objectors limit their concerns to Class Counsel’s requested fee

award. Such a low percentage of opposition favors a finding that the settlement is fair,

reasonable, and adequate under Rule 23. See, e.g., AT&T Mobility, 789 F. Supp. 2d at 965

(citations omitted) (finding opt-out or objection by 0.01% of class members was “remarkably

low” and supported the settlement).

D. The Experience and Views of Counsel

Under Synfuel, the opinion of competent counsel is relevant to determining whether a

class action settlement is fair, reasonable, and adequate under Rule 23. Synfuel, 463 F.3d at 653.

The court accepts that Class Counsel in this case are experienced litigators, especially in the

TCPA context, and that they strongly support the settlement. (Dkt. No. 262 at 20.) Even though

Class Counsel may be considered biased because they stand to benefit from approval, under

Synfuel, this factor weighs in favor of approval.

E. Stage of the Proceedings and the Amount of Discovery Completed

The final factor the court is to consider under Synfuel concerns the stage of the

proceedings and the amount of discovery completed at the time of the settlement. Synfuel, 463

F.3d at 653. The parties in this case engaged in substantial motion practice and discovery in two

of the individual class actions before the JPML transferred the cases to this court. Class Counsel

have analyzed a complete set of the contractual language Capital One offers as the basis for class

members’ consent to be contacted. And prior to the mediation proceedings before retired

Magistrate Judge Infante, the parties exchanged discovery over a six-month period sufficient to

7 The court includes invalid and untimely opt-out requests in the total because those requests, although invalid, signal disapproval of the settlement.

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engage in “meaningful settlement discussions.” Although this settlement-directed discovery is

not identical to the type of full discovery that counsel may desire “to evaluate the merits of

plaintiffs’ claims,” Armstrong v. Bd. Of Sch.. Dirs. of City of Milwaukee, 616 F.2d 305, 325 (7th

Cir. 1980), the court is not convinced that extensive formal discovery, when measured against

the cost that would be incurred, would place the parties in a proportionally better position than

they are now to determine an appropriate settlement value of this litigation. Evaluating the merits

of Plaintiffs’ claims would, as discussed above, require an arduous scouring of Capital One’s

records for individual plaintiffs, undermining the cost-saving benefits of the settlement. The

court finds that the parties have completed a sufficient amount of discovery to be able to place

value on their respective positions in this case. The final Synfuel factor weighs in favor of

settlement.

F. Objections Presented Are Not Well Founded Under the Applicable Law

For the reasons explained above, the factors set out by the Seventh Circuit in Synfuel

support approving the Settlement Agreement in this case. Notwithstanding the court’s conclusion

that the Settlement Agreement is fair, reasonable, and adequate under Rule 23, there are 14 class

members who have filed timely objections, although only a subset of those 14 take issue with the

amount of the settlement. (Dkt. Nos. 144, 152, 184, 189, 193, 196, 199, 202, 215, 225, 227, 228.)

These objections collectively state a number of arguments the court will discuss briefly below.

First, some objectors argue that class members are not receiving enough money in light

of the available statutory damages. As the court discussed above, a class-wide recovery in line

with the statutory awards is unrealistic and would ultimately result in class members finding their

place in line among Capital One’s unsecured creditors in a bankruptcy proceeding. Moreover, as

discussed above, the strength of Plaintiffs’ case did not warrant a settlement anywhere close to

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the statutory award, which is what Plaintiffs would have sought had they prevailed at trial on the

liability issue.

Second, certain objectors complain that they should be able to make claims against the

settlement fund for every call they received, consistent with the framework of the TCPA.

Although the court inquired of counsel about the possibility of a call-based claims process as

well, the court ultimately accepts the representations of Class Counsel and Capital One that it is

unlikely that a material portion of the class had an average call volume greater or lesser than any

other class member. The court also accepts Class Counsel’s representation that a call-based

claims process would be extremely costly to administer and is inadvisable given the fact that

increased administration costs would result in a corresponding decrease in the money available

to the class.

Lastly, the court rejects the complaints of the objectors who have any issue with the

notice and claims process. The court agrees with Class Counsel that the notice provided by

BrownGreer was state of the art and well-tailored to reach the maximum number of class

members. Lead counsel for Capitol One represented to the court that percentage of class

members reached through the notice process was the highest he had ever seen. (Dkt. No. 324 at

35:16-20.) Submitting a claim, in this court’s experienced view, was exceedingly easy for the

class members. Each class members needed only to complete a short online form or return a

postcard.

Accordingly, the court finds that none of the objections to the total amount of the

settlement or its administration are well-founded and, for the reasons explained in detail above,

the court grants the motion (Dkt. No. 260) for final approval of the class action Settlement

Agreement.

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II. Attorneys’ Fees

Although certain of 14 timely objectors contend that Class Counsel’s requested fee is

excessive, the court need not engage in a lengthy analysis of each objector’s argument because

the Seventh Circuit has directed district courts, when deciding whether requested fees are

excessive, to estimate the contingent fee that the class would have negotiated with Class Counsel

at the outset of the litigation, “had negotiations with clients having a real stake been feasible.” In

re Trans Union Corp. Privacy Litig., 629 F.3d 741, 744 (7th Cir. 2011). The court endeavors to

approximate such a market fee below.

A. Class Counsel’s Requested Fees

Class Counsel in this case represent that they have spent 4,268 hours in professional time

over a three-year period litigating and settling this case on a contingent fee basis. (Dkt. No. 252.)

They seek for their efforts an award of attorneys’ fees equal to 30% of the $75,455,099

settlement fund or $22,636.530. They do not seek additional payment or reimbursement for any

of their expenses on top of the requested fee award, nor do they seek compensation for the

injunctive relief barring Capital One from calling an individual’s cell phone without prior

express consent.

To justify their request, Class Counsel argue that their requested fee is less than the

33.3% fee “consistently” awarded in TCPA and non-TCPA class action litigation in this district.

(See Dkt. No. 176 at 19-20 (collecting cases).) They further argue that the substantial risk they

assumed in prosecuting the litigation on a purely contingent basis supports a 30% fee because

there is a reasonable chance that this case, if litigated, could result in no recovery at all for the

class. Class Counsel urge the court to adopt their preferred approach to calculating fees based on

a percentage of the settlement fund rather than through a lodestar analysis, and to calculate that

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percentage from the total settlement fund inclusive of administrative costs, cy pres awards, and

incentive awards.

B. Fee Calculation Method

Although the court granted limited discovery regarding Class Counsel’s lodestar data, the

court agrees with Class Counsel that the fee award in this case should be calculated as a

percentage of the money recovered for the class. It has long been the law in the Seventh Circuit

that in common fund cases like this one, district courts have discretion to choose either the

lodestar or a percentage approach to calculating fees. Florin v. Nationsbank of Ga., N.A., 34 F.3d

560, 566 (7th Cir. 1994) (“It bears reiterating here that we do not believe that the lodestar

approach is so flawed that it should be abandoned . . . . We therefore restate the law of this

circuit that in common fund cases, the decision whether to use a percentage method or a lodestar

method remains in the discretion of the district court. We recognize here . . . that there are

advantages to utilizing the percentage method in common fund cases because of its relative

simplicity of administration.”). Ultimately, the district judge’s job is to approximate the market

rate between willing buyers and willing sellers that would have prevailed had the parties

negotiated the rate at the outset of the representation. Silverman v. Motorola Solutions, Inc., 739

F.3d 956, 957 (7th Cir. 2013) (citations omitted). Although the court need not adopt the

calculation method that is most prevalent in the marketplace as it existed at the time of the

hypothetical negotiation, see Cook v. Niedert, 142 F.3d 1004, 1013 (7th Cir. 1994), such an

approach is more efficient for the court and more likely to yield an accurate approximation of the

market rate.

Here, had an arm’s length negotiation been feasible, the court believes that the class

would have negotiated a fee arrangement based on a percentage of the recovery, consistent with

the normal practice in consumer class actions. An ex ante agreement based on lodestar requires a

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client to monitor counsel, and the class-member “clients” here had little incentive to do so. There

are approximately 17.5 million class members in this case, the prospective relief is minimal, and

none of the class members suffered tangible damages beyond the inconvenience of receiving one

or more debt-collection calls to their cell phones on ostensibly overdue credit card bills. The

class would not have negotiated a compensation scheme that required a level of monitoring the

class members were not interested in or capable of providing. Instead, the class would have

chosen the compensation scheme that required the least monitoring to align the incentives of the

class and its counsel—the percentage method. The court will therefore apply the percentage

method as well.

The court does not, however, agree with Class Counsel’s assertion that “it is

appropriate—and the norm in the Seventh Circuit—to include administrative and notice costs

when calculating fees based on a percentage-of-the-fund.” (Dkt. No. 269 at 17.) The Seventh

Circuit has instructed district courts that the “ratio that is relevant to assessing the reasonableness

of the attorneys’ fee that the parties agreed to is the ratio of (1) the fee to (2) the fee plus what the

class members received.” Redman v. RadioShack, 768 F.3d 622, 630 (7th Cir. 2014).

Administration and notice costs, although paid through the settlement fund, are not benefits to

the class and thus not part of “what the class members received.” Id. Class Counsel argue that the

Seventh Circuit’s recent instruction in Redman applies only in cases involving a fund that must

be monetized from coupon redemptions. The settlement in this case, by contrast, is a non-

reversionary cash fund. (Dkt. No. 269 at 18.) The court does not agree with Class Counsel’s

limited interpretation of Redman. In Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014),

decided two months after Redman, the Seventh Circuit applied its holding in Redman to a

reversionary cash fund and clarified that costs incurred as part of the settlement do not shed light

on the fairness of the split between Class Counsel and class members. Id. at 781 (citing Redman,

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768 F.3d at 630). The Seventh Circuit also extended its analysis to cy pres and service awards

because neither award directly benefits the class, or at least the whole class, and therefore should

not be included in the court’s assessment of the settlement’s value to the class. Id. at 784.

In order to evaluate the fairness of Class Counsel’s fee request consistent with the

Seventh’s Circuit’s recent guidance, the court must recalculate the percentage fee sought by

Class Counsel. After subtracting administration and notice costs ($5,093,000) and the Named

Plaintiff service awards ($25,000), the total money available to split among the class and Class

Counsel is $70,337,099. Class Counsel seeks 22,636,530 of that total, or slightly above 32%.

C. Class Counsel’s Requested 32% Fee Exceeds the Market Rate

The Seventh Circuit has instructed district courts to approximate the market rate that

would have prevailed at the outset of the litigation had negotiations between Class Counsel and

“clients having a real stake” been feasible. Trans Union Corp. Privacy Litig., 629 F.3d at 744.

The Seventh Circuit, however, has not expressed a preference for a particular method of

determining that market fee. The market-mimicking approach is, as the Seventh Circuit

acknowledged, “inherently conjectural.” Id.; see also Synthroid I, 264 F.3d at 719 (“[I]t is indeed

impossible to know ex post the outcome of a hypothetical bargain ex ante.”) In Synthroid I,

however, the Seventh Circuit explained that it is possible to learn about “similar bargains” and

set forth three “guides” or “benchmarks” to help district courts estimate the market fee: (1) actual

fee contracts between plaintiffs and their attorneys; (2) data from similar common fund cases

where fees were privately negotiated; and (3) information from class-counsel auctions. Synthroid

I, 264 F.3d at 719. At least two judges presiding in this district, and one judge from another

district employing the Seventh Circuit’s market-mimicking approach, have applied these three

benchmarks to determine ex post the market contingent fee. See AT&T Mobility, 792 F. Supp. 2d

at 1033-1034; In re Trans Union Corp. Privacy Litig., No. 00 C 4729, 2009 WL 4799954, at

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*10-13 (N.D. Ill. Dec. 9, 2009) (Gettleman, J.), rev’d on other grounds, 629 F.3d 741 (7th Cir.

2011); In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30, 40-45 (D.N.H. 2006) (Smith, J.).

This court will likewise analyze each benchmark to estimate the prevailing market rate for TCPA

class action litigation generally, and then adjust that rate based on the risk of nonpayment in this

case.

1. Class Counsel’s Contingent Fee Agreements

The first benchmark is any actual agreement between plaintiffs and attorneys in this case.

This was a useful starting point in Synthroid because one group of sophisticated plaintiffs had

negotiated a fee agreement at the outset and set the opening price. Synthroid I, 264 F.3d at 720.

That, however, is not the case here. Like most consumer class actions, the only fee agreements

are Class Counsel’s retainer agreements with the Named Plaintiffs, which provide for contingent

fees ranging from 33.3% to 40% of the settlement fund. (Dkt. No. 176 at 22.) These retainer

agreements are of little value to determining the market rate because named plaintiffs are less

often sophisticated buyers of legal services and more often “the cat’s paws of the class lawyers.”

In re Trans Union, 629 F.3d at 744. Moreover, the agreements here were between Class Counsel

and five individual plaintiffs who, individually, did not have “a sufficient stake to drive a hard—

or any—bargain with the lawyer[s].” Continental, 962 F.2d at 572. The court therefore finds that

Class Counsel’s contingent fee agreements with the Named Plaintiffs do not inform the court’s

estimation sufficiently as to what Class Counsel would have received in an ex ante negotiation

with the entire class, has such a negotiation occurred.

2. Data on Fee Awards in Other Cases

The second and third Synthroid benchmarks concern data from similar common fund

cases where the parties set fee schedules ex ante, either through a private negotiation or a

judicially conducted “auction.” Because data from pre-suit negotiations and auctions tend to be

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sparse—and with regard to TCPA class actions, nonexistent—district courts have also examined

empirical data analyzing fee awards in other class actions where fees were awarded at the end of

the case. See, e.g., AT&T Mobility, 792 F. Supp. 2d at 1033; Trans Union, 2009 WL 4799954, at

*11-13. The Seventh Circuit has relied on the same empirical data to determine the “norm” for

fee awards, see Silverman, 739 F.3d at 958, and this court will do so as well. While large-scale

empirical studies necessarily include ex post fee awards from other circuits that may not be

reflective of the market price at the time those cases were filed, the awards likely affect the price

at which national class action lawyers are willing to provide their services going forward. See,

e.g., Trans Union, 2009 WL 4799954, at *11 (noting awards in class actions generally may

influence expectations of a lawyer and client engaging in negotiation); Nilsen v. York County,

400 F. Supp. 2d 266, 282-83 (D. Me. 2005) (“Other courts’ awards necessarily affect the

expectations of lawyers and, therefore, what they might agree to in voluntary negotiation.”)

i. Empirical Studies

In 2004, Theodore Eisenberg and Geoffrey Miller examined two data sets covering class

actions from 1993 to 2002 and found that the mean fee award from settlements in the $38 to $79

million range was 16.9% and the median was 15.5%. Theodore Eisenberg & Geoffrey P. Miller,

Attorney Fees in Class Action Settlements: An Empirical Study, 1 J. Empirical Legal Studies 27,

73 (2004). In 2010, Eisenberg and Miller updated their study in to analyze class action

settlements from 1993 to 2008. Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in

Class Action Settlements: 1993-2008, 7 J. Empirical Legal Studies 248 (2010). The updated

study found that the mean award from settlements in the $38.3 to $69.6 million range, the third

highest decile, was 20.5% and the median was 21.9%; the mean award from settlements in the

$69.6 to $175.5 range, the second highest decile, was 19.4% and the median was 19.9%. Id. at

Tab. 7.

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In the same year as Eisenberg and Miller published their updated 2010 study, Brian

Fitzpatrick, who filed a declaration in this case on behalf of Class Counsel, (Dkt. No. 270),

published a paper analyzing every federal class action settlement in 2006 and 2007. Brian T.

Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J.

Empirical Legal Studies 811 (2010). Fitzpatrick found that the mean award from settlements in

the $72.5 to $100 million range was 23.7% and the median was 24.3%. Id. at 839.

All three studies confirm Eisenberg and Miller’s original finding of a scaling effect

whereby the percentage fee decreases as the class recovery increases. See 1 J. Empirical Legal

Stud. At 28 (“[A] scaling effect exists, with fees constituting a lower percent of the client’s

recovery as the client’s recovery increases.”) In Eisenberg and Miller’s 2010 study, they found

that settlements in the top decile by total recovery yielded a median and mean fee percentage that

was less than one-third of the median and mean percentage fee in settlements in the lowest

decile. 7 J. Empirical Legal Studies at 264. Fitzpatrick found a similar, although less pronounced

scaling effect: settlements in the top decile by recovery yielded a mean fee of 18.4% and a

median of 19%, whereas settlements in the lowest decile yielded a mean fee of 28.8% and a

median of 29.6%. 7 J. Empirical Legal Studies at 839; see also Silverman, 739 F.3d at 958

(observing that the empirical data show that the percentage of the fund awarded to counsel

declines as the size of the fund increases).

Accordingly, if past awards are reflective of the market for this case and its $75.5 million

negotiated settlement fund, and if the published empirical data discussed above accurately reflect

the fees awarded in TCPA class actions, it is fair to conclude that class members would have

negotiated an across-the-board fee somewhere between 20% and 24% of the settlement fund.

Class Counsel’s requested 32% fee (or 30% fee, depending on the denominator) exceeds that

across-the-board range.

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ii. The Court’s TCPA Class Action Settlement Analysis

To assist the court in determining whether the findings from the above empirical studies

are indeed representative of the across-the-board percentage fees awarded in TCPA class actions,

the court requested class counsel in another settled TCPA case, Wilkins v. HSBC Bank, No. 14 C

190 (N.D. Ill.), pending on this court’s docket, to submit data from other finally approved TCPA

class action settlements since 2010. Class counsel in HSBC, many of whom also represent class

members in this case, diligently compiled publicly available summary information contained in

73 TCPA class action settlements approved since 2010. See HSBC, No. 14 C 190 (N.D. Ill.)

(Dkt. No. 109-1). The court has now analyzed the data from 72 of the cases—one case lacked

publicly available fee information—and has attempted in the table below to recreate the

Eisenberg-Miller and Fitzpatrick summaries for TCPA class action settlements. Like the

empirical analyses discussed in the previous section, the table below reports the mean and

median fee percentage, as well as the standard deviation, for each total recovery decile of the

TCPA class action settlements provided by class counsel in HSBC.

Decile Recovery

Range (Start/End)8

Mean Fee (%)

Median Fee (%)

Standard Deviation

Number of Cases

Less than $345,000 31.2 31.5 3.1 8

$345,000 $510,000 33.1 33.3 2.8 7

8 In cases where any unclaimed portion of the settlement reverted to defendants, the court considered the total recovery to be the amount made available to class members before any reversion.

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Decile Recovery

Range (Start/End)8

Mean Fee (%)

Median Fee (%)

Standard Deviation

Number of Cases

$510,000 $1.1 Million 37.1 33.0 18.1 7

$1.1 million $1.6 million 29.4 33.3 6.3 7

$1.6 million $2.6 million 30.7 30.7 4.1 7

$2.6 million $4.6 million 26.1 33.0 10.2 7

$4.6 million $7.0 million 24.1 25.0 9.8 7

$7.0 million $9.8 million 25.8 25.0 4.6 7

$9.8 million $15.9 million 23.7 25.0 8.6 7

$15.9 million $39.9 million 17.2 17.7 4.8 8

HSBC, No. 14 C 190 (N.D. Ill.) (Dkt. No. 109-1).

Because this court lacks the technical expertise of Eisenberg, Miller, or Fitzpatrick, and

because the sample size of cases (72) is quite small, the statistics set forth above are but an

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informal analysis.9 The data similarly fail to provide a meaningful benchmark for a case like this

one, where the $75.5 million recovery begins to approach what many courts consider a

“megafund.” Despite these shortcomings, the available TCPA data offer two important insights.

First, the across-the-board percentage awards in TCPA class actions roughly track the fee awards

in other types of cases, after controlling for class recovery amount. Second, TCPA class actions

exhibit the same relationship between fee awards and recoveries as other types of cases: that is,

the percentage of the fund awarded to counsel generally declines as the size of the fund

increases.

iii. Competitive Fee Structures Negotiated Ex Ante

The analysis desired by Seventh Circuit authority is not at an end, however, because the

second and third benchmarks from Synthroid—ex ante arrangements and judicially overseen

“auctions”10—reveal that sophisticated parties engaged in an pre-filing fee negotiations rarely

agree to a single, across-the-board percentage fee structure, and rarely pay a percentage of the

recovery equal to the benchmark established by past awards. The court has not uncovered any

data about ex ante fee arrangements or auctions in the consumer class action context, let alone

data on TCPA class actions. Data from published opinions in securities and antitrust cases do

exist where district courts utilized a competitive approach to negotiate a fee structure on behalf

9 The court has expended considerable time and effort placing the information submitted by HSBC counsel into usable a dataset for this informal analysis. To assist judges in future cases, and to provide a starting point for more adept statisticians, the court will make its underlying dataset available in a separate order on the docket.

10 The Seventh Circuit has repeatedly stated that litigants do not select their own lawyers through auctions because there is no standard of quality of legal services. Silverman, 739 F.3d at 958; In re Synthroid Marketing Litig., 325 F.3d 974, 979-80 (7th Cir. 2003) (Synthroid II). To the extent that the term “auction” implies an iterative process where bidders compete exclusively on price, that is not the process described here. The auctions described in this section reflect cases where judges placed themselves in the “clients’” shoes and selected the “best bid” based on the quality of the legal work and the price offered. See Synthroid I, 264 F.3d at 720.

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of the class at the outset. As far as the court can tell, there are at least fourteen class action

cases—twelve securities actions and two antitrust actions—where district court judges have

selected lead counsel and negotiated a fee structure using a competitive process. See In re Oracle

Sec. Litig., 131 F.R.D. 688 (N.D. Cal. 1990); In re Wells Fargo Sec. Litig., 157 F.R.D. 467 (N.D.

Cal. 1994); In re Amino Acid Lysine Antitrust Litig., 918 F. Supp. 1190 (N.D. Ill. 1996) (Shadur,

J.); In re California Micro Devices Sec. Litig., 168 F.R.D. 257 (N.D. Cal. 1996); In re Cendant

Corp. Litig., 182 F.R.D. 144 (D.N.J. 1998); In re Network Assocs. Inc., Sec. Litig., 76 F. Supp.

2d 1017 (N.D. Cal. 1999); Sherleigh Assocs. LLC v. Windmere-Durable Holdings, Inc., 184

F.R.D. 688 (S.D. Fla. 1999); In re Lucent Techs. Inc. Sec. Litig., 194 F.R.D. 137 (D.N.J. 2000);

In re Bank One Shareholders Class Actions, 96 F. Supp. 2d 780 (N.D. Ill. 2000) (Shadur, J.);

Wenderhold v. Cylink Corp., 188 F.R.D. 577 (N.D. Cal. 1999); In re Auction Houses Antitrust

Litig., 197 F.R.D. 71 (S.D.N.Y. 2001); In re Quintus Sec. Litig., Nos. 00-C-4264 & 00-C-3894,

2001 WL 709204 (N.D. Cal. Apr. 12, 2001); In re Commtouch Software Ltd. Sec. Litig., No. 01-

C-00719, Order Re Lead Plaintiff Selection and Class Counsel Selection (N.D. Cal. June 27,

2001); In re Comdisco Sec. Litig., 141 F. Supp. 2d 951 (N.D. Ill. 2001) (Shadur, J.)

(Memorandum Opinion entering attached Apr. 6, 2001, Memorandum Order).

The data from these securities and antitrust cases, where available, do not shed light on

the market rate in consumer class actions, but they do illustrate that (1) negotiated fee

agreements regularly provide for a recovery that increases at a decreasing rate and (2) negotiated

fee agreements frequently result in lower fee awards than those suggested by the empirical data

on past awards granted after the fact. In 2006, United States District Judge William Smith

conducted a survey of the fee structures adopted in some of the cases listed above. Cabletron,

239 F.R.D. at 43. The findings of Judge Smith’s survey are reprinted in part below and

supplemented by this court’s independent research. Because the case before Judge Smith was a

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securities class action, Judge Smith applied the negotiated fee schedule of each surveyed case to

the settlement amount in Cabletron. This court will not conduct a similar analysis because, as

discussed above, the court cannot impute the market rate for attorneys’ fees charged in securities

and antitrust cases onto a consumer class action. It is sufficient to note that in nearly every case,

the presiding judge selected a bid with a declining contingent-fee scale.11 See Cabletron, 239

F.R.D at 44 (“[T]he competitive fee structures uniformly reflect a downward scaling as the

settlement fund increases.”).

Instead, the court compares the prevailing fee percentage (i.e., the “blended” rate) in

each case to the mean and median set forth in Eisenberg and Miller’s 2010 study for the

corresponding recovery amount. Such a comparison should help the court determine whether and

to what extent the empirical data—which largely reflect past fee awards determined ex post—

overestimate the contingent fees parties agree to when they actually negotiate at the outset of a

case.

The summary is as follows:

Case Name Total Recovery

Actual Fee Award12

Eisenberg & Miller Mean/Median

In re Oracle Sec. Litig., No. 90-CV- 931 (N.D. Cal., Judge Vaughn Walker) $25 million 22.5% 22.1% (mean)

24.9% (median)

11 In In re Auction Houses Antitrust Litigation, 197 F.R.D. 71 (S.D.N.Y. 2000), counsel agreed to the opposite approach, taking no fees for the first $405 million recovered and 25% of everything above $405 million. The government had already established liability and the lawyers (as well as the class and the court) believed that the first few hundred million would come easy. See Synthroid I, 264 F.3d at 721 (discussing fee structure selected in Auction Houses).

12 Unlike Judge Smith’s analysis, and in recognition that Class Counsel in this case have not included a request for expenses on top of their overall fee request, the court includes expenses awarded to Class Counsel in calculating the fee award.

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Case Name Total Recovery

Actual Fee Award12

Eisenberg & Miller Mean/Median

In re Wells Fargo Sec. Litig., No. 91- CV-1944 (N.D. Cal., Judge Vaughn Walker) $13.7 million 22% 23.8% (mean)

25.0% (median)

In re California Micro Devices Sec. Litig., No. 94-CV-2817 (N.D. Cal., Judge Vaughn Walker) $26 million 15.7% 22.1% (mean)

24.9% (median)

In re Amino Acid Lysine Antitrust Litig., No. 95-CV- 7679 (N.D. Ill., Judge Milton Shadur) $49 million 7.0% 20.5% (mean)

21.9% (median)

In re Cendant Corp. PRIDES Litig., No. 98- CV-2819 (D.N.J., Judge William H. Walls)

$341 million 6.0% 12.0% (mean) 10.2% (median)

In re Cendant Corp. Non-PRIDES Litig., No. 98-CV-2819 (D.N.J., Judge William H. Walls)

$3.2 billion 8.7% 12.0% (mean) 10.2% (median)

In re Auction Houses Antitrust Litig., No. 00-CV-648 (S.D.N.Y., Judge Lewis Kaplan)


In re Bank One Shareholders Class Actions, No. 00-CV-880 (N.D. Ill., Judge Milton Shadur)


In re Network Associates, Inc., No. 99-CV-1729 (N.D. Cal., Judge William Alsup)


In re Quintus Corp. Sec. Litig., No. 00-CV-4263 (N.D. Cal., Judge Vaughn Walker)


Cabletron, 238 F.R.D. at 44; Laural L. Hooper & Marie Leary, Auctioning the Role of Class

Counsel in Class Action Cases: A Descriptive Study, Washington, D.C.: Federal Judicial Center,

2001 (supplementing Judge Smith’s analysis).

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As discussed earlier, the foregoing analysis is merely illustrative and does not purport to

approximate the contingent fee for a TCPA class action, had that fee been negotiated at the

outset of the case with a “client” having a real stake in the outcome. The analysis does, however,

suggest that selecting competent counsel using a competitive process generates a lower

percentage-of-the-fund fee arrangement than Eisenberg and Miller’s mean and median

percentages, which mostly reflect awards granted ex post. The spreads between the negotiated

fees and Eisenberg and Miller’s estimates vary from 0% to 17% and are especially pronounced

for settlements that produced large recoveries. The particular spread depends on the unique facts

and risk factors of each case, but the court’s finding here is generally consistent with the

experience of district court judges who have used a competitive-bid approach to select counsel in

the past. See, e.g., In re Comdisco Sec. Litig., 150 F. Supp. 2d at 947 n.7 (“[T]his Court’s prior

experience as well as the bidding results in the present case confirm that the cited mythic norm

[of 25 percent to 35 percent] is grossly excessive even where substantially smaller [than $100

million] amounts are at stake.”)

The remaining question is whether the findings discussed above apply to a hypothetical

ex ante negotiation in the consumer class action context, or merely to securities and antitrust

cases. The court believes the findings from securities and antitrust cases provide some guidance

regarding the ex ante negotiation in any type of class action. As Eisenberg and Miller concluded

in 2004 and again in 2010, “the overwhelmingly important determinant of the fee is simply the

size of the recovery obtained by the class,” not the subject matter of the litigation. 7 J. Empirical

Legal Studies at 250. All of the empirical studies surveying past awards found similar across-the-

board percentage awards for securities, antitrust, and consumer class actions. Id. at 264 (Tab. 5);

7 J. Empirical Legal Studies at 835 (Tab. 8). Additionally, this court’s informal analysis

discussed earlier in this opinion, and which the court could not have conducted without the

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diligent assistance of counsel, confirmed that the same conclusion applies to the TCPA subset of

consumer class actions. Furthermore, the court has no reason to believe that securities or antitrust

cases are any more or less predictable than consumer class actions, such that counsel would be

willing to negotiate a scaled fee schedule in one set of cases but not the other. As the Seventh

Circuit explained in Silverman, a downward scaling fee arrangement is well-suited to securities

litigation because a large portion of class counsel’s expenses must be devoted to establishing

liability, whereas damages can be calculated mechanically from movements in stock prices.

Silverman, 739 F.3d at 959. That applies equally, if not more, to TCPA cases because nearly all

of counsel’s efforts are devoted to determining liability. Damages are fixed by statute.

3. Court’s Estimation of the Market Rate for TCPA Class Actions Exclusive of Risk

The Seventh Circuit acknowledged in Synthroid I that it is, of course, “impossible to

know ex post the outcome of a hypothetical bargain ex ante . . . . [b]ut a court can learn about

similar bargains.” Synthroid I, 264 F.3d at 719 (emphasis original). That is what the court has

endeavored to do in the preceding sections and the court now draws the following conclusions.

First, given the class’s inability to effectively monitor counsel, an ex ante negotiation would have

produced a fee arrangement based on a percentage of the recovery. Second, the data available on

past awards in TCPA cases and other class actions show that the mean and median recovery for a

$75.5 million TCPA case are between 20% and 24% of the settlement fund. Third, an ex ante

negotiation between Class Counsel and class members in this case, had individual class members

had a real stake in the litigation, would have produced a downward scaling fee arrangement. See

Silverman, 739 F.3d at 959 (“The [empirical data] reinforce the observation in the Synthroid

opinions that negotiated fee agreements regularly provide for a recovery that increases at a

decreasing rate.”) Fourth, given the $75.5 million recovery, the downward scaling fee

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arrangement would have produced an actual percentage award below or toward the bottom of

Eisenberg and Miller’s 20% to 24% range for similarly sized settlements.

The special master appointed by Judge Gettleman in Trans Union observed, correctly,

that determining the criteria for the hypothetical negotiation is the easy part; attaching actual

numbers to the hypothetical downward scaling fee agreement is “more art than science.” Trans

Union, 2009 WL 4799954, at *15. As a starting point, the court applies a slightly modified

version of the fee schedule set out by the Seventh Circuit in Synthroid II because Synthroid II is

the only consumer class action known to this court where the parties (or in this case the court)

estimated a downward scaling fee agreement in a consumer class action.13 Synthroid II, 325 F.3d

at 980. As demonstrated in the table below, applying the modified Synthroid II scale to the total

recovery in this case yields a result that is largely consistent with the conclusions drawn from the

court’s analysis in Section II.C.2. The fee structure affords Class Counsel a relatively high rate

for the initial recovery consistent with Class Counsel’s need to devote most of their efforts to

determining liability. The marginal rates diminish as the recovery increases because,

notwithstanding the class’s desire to incentivize counsel to seek a higher award, the measure of

damages depends more on the number of class members (or phone calls) than the additional

efforts of counsel. Finally, the modified Synthroid II structure produces an actual percentage fee

of 19.97%, which is .03% below Eisenberg and Miller’s 20% to 24% range for similarly sized

settlements.

13 In Synthroid II, the Seventh Circuit set the third “recovery tier” of the consumer class fee schedule at $20-$46 million because it used the total recovery by third-party payers, $46 million, to benchmark the consumer class scale. Here, the court adopts $20-$45 million as the recovery range for the third tier of the estimated fee scale because fee scales negotiated ex ante, including those surveyed above, generally reflect uniform recovery ranges—in this case, multiples of five.

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Application of Modified Synthroid II Structure

Recovery Fee Percentage Fee

First $10 million 30% $3,000,000

Next $10 million 25% $2,500,000

$20 – 45 million 20% $5,000,000

Excess above $45 million ($30,455,099) 15% $4,568,265

Total Fee 19.97% $15,068,265

In light of the Synthroid II structure’s fit with this court’s observations about the TCPA

class-action market, and the fact that the Synthroid II structure resembles the fee schedules

actually put forth by lawyers in an ex ante negotiations (although it is admittedly less tailored),

the court adopts the Synthroid II structure as its estimation of the market contingent fee for a

$75.5 million TCPA class action independent of the risks associated with a particular case.

4. Risk of the Litigation

The last factor the Seventh Circuit instructs a district court to consider is the risk

plaintiffs’ lawyers face of possibly losing the litigation when they undertake class representation.

The estimated magnitude of the risk necessarily affects the price at which Class Counsel in this

case would have been willing to offer their services in an ex ante negotiation, had such a

negotiation occurred. See Synthroid I, 264 F.3d at 721. The Seventh Circuit has explained the

risk premium in fee negotiations with the following hypothetical: “[I]f the market-determined fee

for a sure winner were $1 million the market-determined fee for handling a similar suit with only

a 50 percent change of a favorable outcome should be $2 million.” Trans Union, 629 F.3d at 746

(citations omitted).

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As this court discussed earlier in this opinion, Class Counsel in this case faced a variety

of serious obstacles to success in bringing the lawsuit, and faced the real prospect of recovering

nothing. First, it was quite possible that the discovery may have revealed that many class

members acquiesced to receiving calls on their cell phones when they agreed to their cardholder

agreements with Capital One. Some customers provided Capital One with their cell phone

numbers as their primary contact numbers, arguably waiving any right not to receive debt-

collection calls on their cell phone from Capital One. Second, at the outset of the litigation there

was a serious question whether the Plaintiffs’ claims could meet Rule 23’s manageability

requirement given that Capital One would have to review its records to determine which class

members provided consent through cardholder agreements, which class members actually

provided their cell phone numbers to Capital One, and whether each class member actually

owned their cell phone number at the time Capital One called it using an autodialer. Third, as

Capital One has noted throughout this litigation, there are presently petitions before the FCC

urging the FCC to (1) revise the TCPA’s definition of “automatic telephone dialing system” to

exclude dialers like those used by Capital One, and (2) provide a safe harbor for all calls that

Capital One inadvertently made to wrong numbers. Consequently, the longer this litigation were

to continue, the longer Plaintiffs would be exposed to the possibility that the FCC would take

action that might extinguish Plaintiffs’ claims.

On the flip side, Capital One’s potential monetary liability in this litigation is staggering.

Even if each of the 7.5 million class members in this case had only received one phone call a

piece and could not prove that any of the calls were made in willful violation of the TCPA,

Capital One’s exposure is still greater than $8.7 billion. That type of potentially bankruptcy-level

exposure is sufficient to compel an in terrorem settlement before a liability determination is

made and is accordingly a factor that reduces Class Counsel’s risk of non-payment. See AT&T

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Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1752 (2011) (noting class actions can produce in

terrorem settlements).

The precise level of risk faced by Class Counsel more than two years ago, when the cases

were filed, is difficult for a district court to determine and quantify after the fact. The Seventh

Circuit, however, has criticized at least one district court for failing to make an attempt to do so.

See Trans Union, 629 F.3d at 746-48. As hard as the task may be, this court will endeavor to

determine an appropriate risk multiplier. After preliminary approval of the Class Settlement and

after the court granted limited discovery of Class Counsel’s lodestar information in this case and

other TCPA cases, Professor Todd Henderson submitted a report on behalf of class member

objector Jeffery Collins. Professor Henderson’s report calculated that Class Counsel recovered

on behalf of the various classes they had represented (and themselves) in about 43% of past

TCPA cases.14 (Dkt. No. 294 ¶ 10.) Professor Henderson’s determination was based on the

limited sample of TCPA cases in which Class Counsel participated. It is, however, the best

information available to court. As a result, the court assumes the average TCPA case carries a

43% chance of success, and the question the court ultimately must answer is whether Class

Counsel in this case faced a greater or lesser chance of prevailing. Considering the circumstances

of this case, the court believes that the class members’ consent issues made the representation

riskier than a typical TCPA class action, but only slightly so after considering the strong

incentives to settlement created by the magnitude of Capitol One’s potential liability.

14 Professor Henderson further determined that after adjusting for the amount of effort Class Counsel invested in each case, about 64% of Class Counsel’s total investments were in cases in which they recovered. (Id. ¶ 10.) Because the court is concerned with the riskiness of this case relative to other TCPA cases, however, it adopts Professor Henderson’s 43% estimate, unadjusted for Class Counsel’s investment savvy.

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The next question the court now faces is how to adjust the market fee structure the court

has determined, as discussed earlier in this opinion, to account for the increased risk Class

Counsel faced of losing. Eisenberg and Miller in their 2010 study concluded that “high risk”

consumer class actions yield a percentage fee premium of about 6% above the “low or medium

risk” cases. 7 J. Empirical Legal Studies at 265 (Tab. 8). Absent better information and in light

of the court’s determination that this case was only slightly riskier than a typical TCPA class

action, the court adopts Eisenberg and Miller’s risk premium and applies it to the court’s

estimated market rate. Although Eisenberg and Miller’s 6% premium applied to the entire fee

award, such an application does not make sense in a case like this one, where the risk existed

only with regard to liability, not damages. Each of the potential impediments to establishing

Capital One’s liability: the class members’ alleged consent to be called; Rule 23 manageability

issues; and potentially forthcoming FCC orders; only affected Class Counsel’s ability to prove

their case on liability and consequently their ability to recover any damages. Once the risk

resulting from the impediments to establishing liability was overcome and Capital One’s liability

established, Class Counsel’s ability to obtain a large recovery was no longer materially affected

by that risk. As discussed above, one of the purposes of a downward scaling fee schedule is to

account for cases where the marginal costs of increasing the class’s damages recovery are low.

Class counsel in an ex ante negotiation must nevertheless be provided an incentive to take the

case at the outset and seek the highest award on behalf of the class that is reasonable under the

facts and law of the case.

Because all of the risk factors in this case were limited to the question of Capital One’s

liability, it follows that the risk premium related to Class Counsel’s fees should apply only to the

attorneys’ fees associated with the initial recovery tier negotiated between Class Counsel and the

sophisticated class members before the case was filed. In the hypothetical ex ante negotiation,

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Class Counsel would have desired compensation for their enhanced risk regardless of the

eventual level of recovery; the way to affect that desire is by incorporating the risk premium into

the attorney fee percentage related to the first recovery tier. Sophisticated class members, by

contrast, would have balked at agreeing to a similar adjustment to the second, third, and fourth

recovery tiers, because the risk factors present in this case related only to establishing liability

and would not have affected Class Counsel’s ability to achieve the additional damages recovery

reflected in second, third and fourth tiers. The court therefore applies the 6% premium only to

the first $10 million in the first tier of the market fee structure. The court’s risk-adjusted market

contingent fee structure is set forth in the table below, and nets Class Counsel an additional

$600,000.

Risk-Adjusted Fee Structure

Recovery Fee Percentage Fee

First $10 million 36% $3,600,000

Next $10 million 25% $2,500,000

$20 to $45 million 20% $5,000,000

Excess above $45 million ($30,455,099) 15% $4,568,265

Total Fee 20.77% $15,668,265

5. Professor Henderson’s Model

Lastly, as discussed earlier, the court granted objector Jeffrey Collins’s request for

discovery of information from Class Counsel regarding Class Counsel’s hours and hourly fees to

calculate the lodestar in this case and in Class Counsel’s previous TCPA class cases. Collins sent

Class Counsel’s information to Professor Henderson, who in turn filed a report analyzing the

data and proposing an alternative method for approximating the ex ante market rate at the

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conclusion of a case. Collins’s counsel acknowledged at the final approval hearing that no

district court or court of appeals has ever adopted Professor Henderson’s methodology. (Dkt. No.

324 at 54:17-19.) This court similarly declines to apply Professor Henderson’s method of

estimating the appropriate fee award in this case. Professor Henderson’s model, though not

applied, nevertheless merits a brief discussion.

Using Class Counsel’s lodestar data, Professor Henderson determined that Class Counsel,

who are highly experienced, achieve a recovery for their “clients” in approximately 43% of their

TCPA cases. (Dkt. No. 294 ¶ 10.) But after adjusting for Class Counsel’s tendency to devote

substantially more professional time to their winning cases than to their losing cases, Henderson

concluded that Class Counsel have a 64% chance of obtaining recovery for any given dollar of

lodestar invested in TCPA litigation. Given a 64% chance of recovery, Henderson determined

that Class Counsel need only obtain a weighted average 1.57 lodestar multiplier in successful

cases to compensate Class Counsel for their lodestar investment and the contingent risk Class

Counsel faces in TCPA class action litigation. (Id.) Applying that multiplier to this case,

Professor Henderson concluded that Class Counsel would have represented the class in this case

for 4.6% of the total recovery had they been forced to compete for the legal work at the outset of

the case.15

Professor Henderson’s model may possibly be a good predictor of the going rate in a

competitive market of homogenous plaintiffs lawyers. It does not, however, comport with the

Seventh Circuit’s guidance requiring the court to hypothetically approximate an ex ante fee

negotiation. As a threshold matter, Professor Henderson’s model relies exclusively on data

15 (Multiplier (1.57) × Lodestar ($2,213,769)) ÷ Recovery ($75,455,099) = 4.6%. Professor Henderson’s model is more complicated than the court’s basic description here. For purposes of this opinion, however, and because the court did not apply Professor Henderson’s approach, the court’s summary will suffice.

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relating to cases that were resolved after Class Counsel filed this case. That is not a criticism of

Professor Henderson’s methodology—he had no choice because he was limited to the data

available through discovery. The limitation, however, does undermine the applicability of

Professor Henderson’s model to this case. Class Counsel did not know, at the outset of the

litigation, that they needed only to achieve a 1.57 lodestar multiplier to compensate themselves

for the contingent risk, and accordingly could not have relied on that multiplier to formulate their

hypothetical ex ante bid for the legal work in this case. Professor Henderson’s model also

assumes “a hypothetical competitive market for plaintiffs’ lawyers’ services,” without ever

establishing that such a market exists. (Dkt. No. 294 ¶ 64.) The court’s job is to approximate the

market as it existed before the litigation, including the degree of competition. In doing so, the

court cannot assume a perfectly competitive market without the benefit of reviewing additional

evidence that is absent from this record. Indeed, the joint representation model present in this

case and many of the comparable TCPA cases suggests that the market among plaintiffs class

action lawyers, at least for large TCPA cases, may not be highly competitive. See also Joseph

Ostoyich and William Lavery, Looks Like Price-Fixing Among Class Action Plaintiffs Firms,

Law360 (Feb. 12, 2014 11:30 AM), http://www.law360.com-/articles/542260/looks-like-price-

fixing-among-class-action-plaintiffs-firms.

Ultimately, the court must follow the Seventh Circuit’s guidance in approximating the fee

that would have been negotiated ex ante in this TCPA case had such a negotiation occurred.

Unfortunately for Professor Henderson, his model is not among the methods accepted by the

Seventh Circuit. Using the benchmarks set forth in Synthroid I, as explained above, the court

concludes that the tiered fee arrangement displayed above, which approximates the agreed-upon

negotiated percentage of the attorneys’ fees to be taken from a $75.5 million settlement had

Class Counsel negotiated with capable, sophisticated class members having a real stake in the

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litigation, is about 20%. Although the court noted earlier that the fairness of a fee percentage is

to be considered against the total value of the settlement to the class less administrative and

notice costs, the benchmarks the court used to determine the market rate evaluated fees as a

percentage of the total recovery. The court therefore grants Class Counsel $15,668,265 of fees

which is equal to about 20.77%, or about one fifth, of the entire $75,455,099 settlement fund.

The court further grants Class Counsel’s requested incentive awards for the Named

Plaintiffs in the amount of $5,000 each. Incentive payments sufficient to induce Named Plaintiffs

to participate in the lawsuit are appropriate in the Seventh Circuit and, given the circumstances in

this case, were necessary. Continental, 962 F.2d at 571. Moreover, a $5,000 award is consistent

with the awards granted by other courts in this district in similar litigation. See AT&T Mobility,

792 F. Supp. 2d at 1041 (collecting cases).

The Settlement Agreement states that Defendants’ contributions to the settlement fund

are non-reversionary, (Settlement Agreement § 2.42), and that the settlement will “continue to be

effective and enforceable by the Parties,” in the event that the court declines Class Counsel’s fee

request or awards less than the amounts sought (id. § 5.03). But the Settlement Agreement is

silent on the matter of who, precisely, should receive the additional funds available should the

court reduce the requested fee award, as it has done here. For the avoidance of doubt, the court

orders that the additional money available as a result of its reduction to Class Counsel’s

requested fee should go to the class members who made timely claims. After incorporating the

court’s reduced fee award, the money available to class as result of the settlement is

$54,668,834, which results in a payment to each timely claimant of at least $39.66, and possibly

more if some claimants fail to deposit their settlement checks within 210 days.

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CONCLUSION

For the reasons set forth above, Plaintiffs’ motion for final approval of the class action

settlement [260] is granted. The settlement is fair, reasonable, and adequate. Class Counsel’s

motion for approval of attorneys’ fees [175] is granted in part and denied in part. The court

awards attorneys’ fees and costs in the total amount of $15,668,265 (about 20.77% of the

$75,455,099 settlement amount) and incentive awards of $5,000 to each of the five Named

Plaintiffs.

ENTER:

_______________________________ JAMES F. HOLDERMAN District Judge, United States District Court Date: February 12, 2015

- 43 -


SWIGART DECL. IN SUPP. OF MTN. FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA

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HYDE & SWIGART Joshua B. Swigart, Esq. (SBN: 225557) [email protected] 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (SBN: 249203) [email protected] Jason A. Ibey, Esq. (SBN: 284607) [email protected] 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Attorneys for Plaintiff and Proposed Settlement Class



Plaintiff,

v.


Defendant.

Case No.: 13-cv-00981-JAH-JMA DECLARATION OF JOSHUA B. SWIGART IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT Date: April 27, 2015 Time: 2:30 p.m. Place: Courtroom 13B Judge: Hon. John A. Houston


SWIGART DECL. IN SUPP. OF MTN. FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA 1

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DECLARATION OF JOSHUA B. SWIGART

1. I, Joshua B. Swigart, hereby declare under penalty of perjury, and pursuant to

the laws of the State of California and the United States of America, that the

foregoing is true and correct. If called as a witness, I would competently

testify to the matters herein from my own personal knowledge.

2. I am a partner of the law firm of Hyde & Swigart and co-counsel of record

for plaintiff Rafael David Sherman (“Plaintiff”) in the above-captioned action

against defendant Kaiser Foundation Health Plan, Inc. (“Defendant”). I am a

member in good standing of the bars of the State of California and District of

Columbia. I am also admitted in every federal district in California and have

handled federal litigation in Arizona, Washington, Minnesota, Tennessee and

Texas. I am writing this declaration in support of Plaintiff’s Motion for

Award of Attorneys’ Fees, Costs, and Incentive Award. Except as otherwise

noted, I have personal knowledge of the facts set forth in this declaration, and

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

3. Plaintiff seeks the Court’s approval of the following to be paid from the

$5,350,000.00 Settlement Fund, as part of the preliminarily approved

Settlement Agreement:

i. Attorneys’ fees in the amount of $1,337,500, representing 25% of

the $5,350,000.00 Settlement Fund;

ii. Costs of litigation incurred by Class Counsel in the amount of

$9,791.23 as of March 3, 2015;

iii. Notice and claims administration costs of $475,897.85 as of

January 31, 2015 (estimated to be $495,374); and

iv. An incentive award of $1,500 to the named Plaintiff.

4. As part of the Settlement Agreement previously filed as Exhibit 1 to the

Plaintiff’s Motion for Preliminary Approval of Class Action Settlement (Dkt.

No. 35-3), Plaintiff and Defendant (hereinafter the “Parties”), agreed that



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Defendant would pay all of the following from the Settlement Fund: (1)

attorney’s fees in an amount not to exceed 25% of the Settlement Fund

($1,337,500.00) (id. at § 5); (2) litigation costs up to $25,000 (id.); (3) an

incentive award for the Plaintiff and Class Representative in an amount not to

exceed $1,500 (id. at § 6); and (4) all settlement administration costs,

estimated to be approximately $495,374 (id. at § 7).

5. The Settlement Agreement was the result of good faith, arm’s length

settlement negotiations over many months, including a telephonic Case

Management Conference, which was held on October 1, 2013 before

Magistrate Judge Jan M. Adler and an Neutral Evaluation Conference

(“ENE”) before Judge Jan M. Adler, held on August 7, 2013 (see

Kazerounian Decl. in support of Plaintiff’s Motion for Preliminary Approval,

Dkt. No. 35-2, ¶ 7). The Parties also engaged in a full day of mediation

before Honorable Leo S. Papas (Ret.) on February 4, 2014, and Class

Counsel met with Defendant subsequent to the mediation to further negotiate

the structure of the settlement before agreeing on the proposed Settlement

terms. See Section E to Recitals to SA. Additionally, the parties have also

conducted considerable formal written discovery, including written

Confirmatory Discovery. See Kazerounian Decl. in support of Plaintiff’s

Motion for Preliminary Approval, Dkt. 35-2, ¶ 13-14.

I. BACKGROUND AND EXPERIENCE

6. Since my admission to the California bar in 2003, I have been engaged

exclusively in the area of consumer rights litigation, primarily in the area of

fair debt collections, the defense of debt collection lawsuits, and class

action litigation under the Telephone Consumer Protection Act (“TCPA”)

and Fair Debt Collection Practices Act (“FDCPA”).

7. Hyde & Swigart has been preliminarily confirmed as class counsel for

purposes of this action and to proceed with the class action settlement. [Dkt.



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No. 38]. My firm, Hyde & Swigart, in which I am a principal, has litigated

over 1,200 cases in the past ten years. My firm has three offices in two

states, San Diego, California, Riverside, California and Phoenix, Arizona.

Hyde & Swigart has extensive experience in consumer class actions and

other complex litigation, including the TCPA. My firm has a history of

aggressive, successful prosecution of consumer class actions, specifically

under the Fair Debt Collection Practices Act and Telephone Consumer

Protection Act.

A. EXPERIENCE RELEVANT TO THE TELEPHONE CONSUMER PROTECTION

ACT

8. I have filed and litigated several other class actions based on the Telephone

Consumer Protection Act in the past three years. The following is a list of

other TCPA class actions which I am or have been personally involved in:

a. Bellows v. NCO Financial Systems, Inc., 07-CV-01413-W (AJB) (S.D.

Cal) (One of the first class action settlements under the TCPA in the

nation; Hyde & Swigart served as co-lead counsel; final approval

granted in 2009);

b. Adams v. AllianceOne, Inc., 08-CV-0248-JAH (S.D. Cal) (Nationwide

TCPA class settlement providing class relief of $40 per claiming class

member resulting in over $2,500,000 paid to claiming class members;

final approval granted in 2013);

c. Gutierrez, et al. v. Barclays Group, et al., 10-CV-1012-DMS (BGS)

(Common fund created in the amount of $8,262,500 based on the receipt

of unsolicited text messages; final approval granted in 2012);

d. Malta, et al. v. Wells Fargo Home Mortgage, et al., 10-CV-1290-IEG

(BLM) (Served as co-lead counsel for a settlement class of borrowers in

connection with residential or automotive loans and violations of the

TCPA in attempts to collect on those accounts; obtained a common



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settlement fund in the amount of $17,100,000; final approval granted in

2013);

e. Conner v. JPMorgan Chase Bank, et al., 10-CV-1284 DMS (BGS) (S.D.

Cal.) (Currently serving as co-lead counsel for the settlement class of

borrowers in connection with residential loans and TCPA violations

stemming from the collection of those accounts; Settlement of more than

$11,000,000.0; finally approved);

f. In Re: Midland Credit Management, Inc., Telephone Consumer

Protection Act Litigation, 11-md-2286-MMA (MDD) (S.D. Cal.)

(Counsel for a Plaintiff in the lead action, prior to the action being

recategorized through the multi-district litigation process; still actively

involved in the MDL litigation and settlement process);

g. In Re: Portfolio Recovery Associates, LLC Telephone Consumer

Protection Act Litigation, 11-md-02295-JAH (BGS) (Counsel for a

Plaintiff in the lead action, prior to the action being recategorized

through the multi-district litigation process; still actively involved in the

MDL litigation and settlement process);

h. Arthur v. SLM Corporation, 10-CV-00198-JLR (W.D. Wash.)

(Nationwide settlement achieving the then-largest monetary settlement

in the history of the TCPA: $24.15 million; final approval granted in

2012);

i. Lo v. Oxnard European Motors, LLC, et al., 11-CV-1009-JLS-MDD

(S.D. Cal.)(Achieving one of the highest class member payouts in a

TCPA action of $1,331.25; final approval granted in 2012);

j. Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., 10-01777-AJB-NLS

(S.D. Cal.) (Approved as co-lead counsel and worked to obtain a

national TCPA class settlement where claiming class members each

received payment in the amount of $70.00; final approval granted in



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2013);

k. Wilkins v. HSBC Bank Nevada, N.A., Case No. 12-CV-04010-SI (N.D.

Ill.) (Finally approved for $39,975,000 on February 27, 2015);

l. Heinrichs v. Wells Fargo Bank, N.A., 13-CV-05434-WHA (N.D. Cal.);

m. Rose v. Bank of America Inc., 11-CV-02390-EJD (N.D. Cal)(National

TCPA action achieving a settlement of $32 million, final approval

granted in August of 2014);

n. Fox v. Asset Acceptance, LLC, No. 14-cv-00734 -GW-FFM (C.D. Cal.)

(TCPA class action, settled and drafting preliminary approval papers);

o. Olney v. Job.com, Inc. et al., No. 12-cv-01724-LJO-SKO (E.D. Cal.);

p. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal.)

(class certification granted on September 5, 2014);

q. Newman v. AmeriCredit, 11-cv-03041-DMS-BLM (preliminarily

approved for $8,500,000 on November 26, 2014);

r. Lemieux v. EZ Lube, Inc. et al., 12-cv-01791-BAS-JLB (S.D. Cal.)

(finally approved for $479,364 on December 8, 2014); and

s. Knutson v. Schwan’s Home Service, Inc. et al., 12-cv-00964-GPC-DHB

(S.D. Cal.) (preliminarily approved for $ 2,535,280; final approval

hearing held).

9. Many the cases listed above, which have settled, have resulted in the

creation of combined common funds and/or distribution to class member in

the tens of millions of dollars. The outstanding results mentioned above are

a direct result of the diligence and tenacity shown by both myself and Hyde

& Swigart in successfully prosecuting complex class actions.

B. HYDE & SWIGART’S OTHER CONSUMER RELATED EXPERIENCE AND

RESULTS

10. Hyde & Swigart has extensive experience in other consumer related issues,

including California Penal Code § 632, et seq., the Fair Debt Collection



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Practices Act and other related consumer statutes. A brief summary of a

non-inclusive list of notable published decisions are as follows:

a. CashCall, Inc. v. Superior Court, 159 Cal. App. 273 (2008); (Allowing

the original plaintiff who lacked standing in a class action to conduct

pre-certification discovery of the identities of potential plaintiffs with

standing);

b. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) (Co-lead counsel

on a class action involving privacy rights under Cal. Penal Code § 632 et

seq. Appeals court reversing the trial courts granting of Defendant’s

motion for summary judgment after case was certified);

c. Engelen v. Erin Capital Management, LLC, et al., No. 12-55039 (9th

Cir. 2013, not for publication, D.C. No.: 3:10-cv-01125-BEN-

RBB)(Reversing the lower court’s granting of summary judgment to the

defendant debt collector on the basis of the bona fide error defense and

remanding for further proceedings);

d. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-

GPC-WVG (S.D. Cal.)(TCPA class action where Defendant’s motion

for summary judgment was denied holding that a single call or text

message with the use of an ATDS may be actionable under the TCPA);

e. Olney v. Progressive Casualty Insurance Company, 2014 U.S. Dist.

LEXIS 9146 (S.D. Cal.); 13-CV-2058-GPC-NLS (Defendant’s motion

to dismiss or in the alternative to strike the class allegations was denied

finding that debt collection calls were not exempt from coverage under

the TCPA);

f. Iniguez v. The CBE Group, Inc., 2013 U.S. Dist. LEXIS 127066 (E.D.

Cal.); 13-CV-00843-JAM-AC (The court denying Defendant’s motion

to dismiss and to strike class allegations holding that the TCPA applies

to any call made to a cellular telephone with an ATDS);



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g. Catala v. Resurgent Capital Servs., L.P., 08-CV-2401 NLS, 2010 U.S.

Dist. LEXIS 63501 (S.D. Cal.)(Co-lead counsel on a class settlement

involving the Fair Debt Collection Practices Act);

h. Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104 (C.D. Cal.

2005)(Summary judgment was granted sua sponte in favor of a debtor

where debt collector violated the Fair Debt Collection Practices Act,

when its employees failed to disclose the debt collector’s identity and

the nature of its business in the messages left on the debtor’s answering

machine). This case has now been followed in at least four different

districts throughout the country;

i. Edstrom v. All Servs. & Processing, 2005 U.S. Dist. LEXIS 2773 (N.D.

Cal. 2005)(Numerous omissions from a letter sent by a debt collector to

members of a homeowners association, and a statement requiring any

dispute to be put in writing, violated 15 U.S.C. § 1692g(a) of the

FDCPA and Cal. Civ. Code §1788.17. The FDCPA required strict

compliance; actual confusion on debtors’ part was not required);

j. Forsberg v. Fid. Nat’l Credit Servs., 2004 U.S. Dist. LEXIS 7622 (S.D.

Cal. 2004)(Plaintiff alleged sufficient facts to support his claim that a

collection company, in its initial communication, did not comply with

the statutory requirements for notice of validation of debts under the

FDCPA);

k. Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (N.D. Cal. 2005)

(Court struck Defendant’s counter claim of the underlying debt in a fair

debt action based on lack of subject matter jurisdiction);

l. Geoffroy, et al. v. Washington Mutual Bank, 484 F. Supp. 2d 1115 (S.D.

Cal. 2007)(Court striking down Defendant’s arbitration agreement as

both procedurally and substantively unconscionable);

m. Yang v. DTS Financial Group, 07-CV-1731-JLS (WMc) (Holding that



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for profit debt settlement companies are covered under the FDCPA and

can be construed as “debt collectors” under 15 U.S.C. § 1692a(6));

n. Mason v. Creditanswers, 2008 U.S. Dist. LEXIS 68575; (Holding that a

forum selection clause causing a California consumer to litigate its

claims seems contrary to the polices advanced by certain consumer

protection statutes);

o. Myers v. LHR, Inc., 543 F.Supp.2d 1215 (2008) (Recognizing actual and

statutory damages in the amount of $92,000 in a default judgment based

on violations of the State and Federal collection statutes);

p. Yates v. Allied Intl Credit Corp., 578 F. Supp. 2d 1251 (2008) (Holding

a debtors claim based on the FDCPA stemming from the filing of a false

police report was not subject to the litigation privilege under Cal. Civ.

Code § 47(b));

q. Owings v. Hunt & Henriques, et al., 2010 U.S. Dist. LEXIS 91819 (S.D.

Cal.) (Recognizing that the Service Members Civil Relief Act applies to

California National Guard Members and that the debt collection

attorney’s false declaration the court violates the FDCPA); and

r. Heathman v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS

98742 (S.D. Cal. 2013)(Holding that failing to properly list and disclose

the identify of the original creditor in a state collection pleading is a

violation of the Fair Debt Collection Practices Act under 15 U.S.C. §

1692e)).

C. ADDITIONAL RELEVANT TRAINING, SPEAKING/TEACHING

ENGAGEMENTS AND ASSOCIATIONS

11. I have undergone extensive training in the area of consumer law and the

Telephone Consumer Protection Act. The following is a list of recent

training conferences I attended, some of which I have presented:

a. National Consumer Law Conference; Oakland, CA – 2003;



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b. National Consumer Law Conference (FDCPA Mini-Conference);

Kansas City, MO – 2004;

c. National Consumer Law Conference; Boston, MA – 2004;

d. Five-day extensive one-on-one training with The Barry Law Office; San

Diego, CA –2005;

e. Three-day FDCPA Mini-Conference; Minneapolis, MN – 2005;

f. Four-day extensive one-on-one training with The Barry Law Office;

Minneapolis, MN – 2005;

g. Four-day National Association of Consumer Advocates Conference;

Minneapolis, MN – 2005;

h. Four-day National Consumer Law Center Conference; Nashville, TN –

2008;

i. Three-day National Consumer Law Center Conference; Portland, OR -

2008;

j. Speaker at a Three-day National Consumer Law Center Conference; San

Diego, CA - 2009;

k. Speaker ABA/JAG presentation to military service members and

counsel; MCRD, San Diego CA – 2010;

l. Speaker ABA teleconference on defending consumer credit card debt

and related issues; San Diego, CA – 2010;

m. Three-day National Consumer Law Center Conference; Seattle, WA -

2011;

n. Two-day FDCPA Mini-Conference; New Orleans; LA - 2012;

o. Two-day National Consumer Law Center Conference on the FDCPA;

Seattle, WA - 2012;

p. National Consumer Law Center Conference, National Convention;

Baltimore, MD - 2013;

q. Speaker ABA National Conference, Business Litigation Section; Trends



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in Consumer Litigation; San Francisco, CA - 2013;

r. Speaker National Consumer Law Center; Nuts and Bolts of TCPA

Litigation; San Antonio, TX - 2014;

s. Speaker San Diego County Bar Association; Convergence of the

FDCPA and Consumer Bankruptcy; San Diego, CA - 2014;

t. Guest Speaker at California Western School of Law; Consumer Law

class - 2014;

u. 8th Annual Class Action Seminar; San Francisco, CA - 2014;

12. I am a member in good standing of the following local and national

associations:

a. National Association of Consumer Advocates;

b. Federal Bar Association, Southern District of California Chapter;

c. San Diego County Bar Association;

d. Riverside County Bar Association;

e. San Bernardino County Bar Association;

f. Enright Inns of Court (2011-2014);

g. American Association for Justice;

h. Public Justice.

13. I have argued before the Ninth Circuit Court of Appeal in the matter of

Hyde v. Midland Credit Management Inc., No. 07-55326.

14. Therefore, I believe that my experience and years in practice are sufficient


D. EXPERIENCE OF HYDE & SWIGART’S STAFF

15. Hyde & Swigart employs a highly qualified staff of paralegals, law clerks,

and legal assistants. In particular my paralegal, Eva Dickey, graduated

Manga Cum Laude from North Arizona University and has completed and

ABA approved paralegal program at UCSD. Since joining Hyde & Swigart

in 2013, Ms. Dickey has worked directly under my supervision on a variety



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of complex class actions including this action. However, my lodestar is not

including any hours for paralegal work on this case.

II. OVERVIEW OF HYDE & SWIGART’S EFFORTS IN THIS ACTION

A. CONTINGENT NATURE OF ACTION

16. This action, filed on April 24, 2013, required Hyde & Swigart to spend time

on this litigation that could have been spent on other matters. At various

times during the litigation of this class action, this lawsuit has consumed my

time as well as my firm’s resources. My firm has not been paid anything for

our work on this case since it was filed. It is my opinion that law firms in

such a position expect to receive a multiplier in cases such as these because

of the risk taken, the extent to which firms are unable to take on other cases,

the delay in getting paid and the costs we have to advance.

III. HYDE & SWIGART’S LODESTAR

17. Hyde & Swigart has maintained contemporaneous time records since the

commencement of this action. Hyde & Swigart has worked a total of

184.50 attorney hours, for a total lodestar of $109,777.50.1 This figure

includes an additional estimated 45 hours for preparing the final approval

hearing papers, addressing any objections to the settlement, appearing at the

hearing and overseeing the settlement administration. Of course, if more

than 45 hours are needed, that would increase my lodestar.

a. All attorneys and staff at Hyde & Swigart are instructed to maintain

contemporaneous time records reflecting the time spent on this and other

matters. The regular practice at Hyde & Swigart is for all attorneys and

staff to keep contemporaneous time records, maintained on a daily basis,

and describing tasks performed in 0.1-hour increments. Firm policy

1 The hourly attorney rate sought and used in this lodestar calculation is $595 and paralegal hours have been zeroed.



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requires all staff to enter their time into an electronic timekeeping

system on a daily basis. I review and audit the time on a regular basis.

b. Hyde & Swigart’s lodestar will grow as we continue to finalize the

settlement process and close the litigation. The claims period will last

for a couple more weeks, and Hyde & Swigart’s commitment of time

and labor to this case will continue until (and likely beyond) that

date. Hyde & Swigart will continue to assist Class members with

individual inquiries, will oversee the claims resolution process, and

Class Counsel will help resolve Class member challenges to the result of

their claims submissions. Judging by previous experiences, these

responsibilities will require dozens of hours of work by Class Counsel

over the coming weeks.

18. It is my understanding that co-counsel Abbas Kazerounian and Jason A.

Ibey at the Kazerouni Law Group, APC, have incurred 311.70 hours of

attorney time, which includes an expected additional 38 hours for preparing

the final approval hearing papers, addressing any objections to the

settlement, appearing at the hearing and further overseeing the settlement

administration. Further, it is my understanding that Mr. Kazerounian’s

hourly billing rate is $565, that Mr. Ibey’s hourly billing rate is $365, and

that Kazerouni Law Group, APC, has to date incurred fees in the amount of

$163,030.50.

IV. HYDE & SWIGART’S COSTS

19. Hyde & Swigart maintains all books and records regarding costs expended

on each case in the ordinary course of business, which books and records

evidence which checks have issued on each case and/or which accounts

payable are associated with each matter. I have reviewed the records of

costs expended in this matter.

20. Hyde & Swigart has incurred $5,698.34 in expenses related to the present



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action, which includes filing fees; service and courier fees; mediation fees;

and Federal Express or messenger charges. It is my understanding that

Kazerouni Law Group, APC has incurred $5,092.89 in litigation costs. The

total $9,791.23 in ligation costs sought are substantially less that the $25,000

in costs authorized by the Settlement Agreement. SA § 5.

V. REASONABLENESS OF HOURLY RATES

21. Hyde & Swigart’s hourly rates are reasonable in respect to the ranges

charged by comparable law firms in the State of California.2

22. From 2009 through present Hyde & Swigart’s approved hourly rate for both

attorneys and support staff has steadily increased. In 2013, in Malta v. Wells

Fargo Home Mortgage, 10-CV-1290-BEN (NLS) [Dkt. 92], I was

approved for an hourly rate of $545. More recently, I have been approved

for an hourly rate of $595 in Lemieux v. EZ Lube, Inc. et al., 12-cv-01791-

BAS-JLB (S.D. Cal.) [Dkt. No. 83]; and Hoffman v. Bank of America, N.A.,

12-cv-00539-JAH-DHB (S.D. Cal.) [Dkt. No. 67].

VI. OVERVIEW OF WORK PERFORMED BY HYDE & SWIGART

AND THE CONTINGENT NATURE OF THE ACTION

23. To provide the Court with an overview of the work done by Hyde &

Swigart in this case, without requiring the review of our voluminous time

records themselves, I divide my firm’s work into specific phases that track

the progress of the litigation from our initial investigation through

settlement.

24. Initial Case Investigation and Pleadings. Hyde & Swigart spent

approximately 9.80 hours on combined initial case investigation, research

and drafting the Complaints. Such investigation included the following: 2 See Survey from the National Law Journal in 2012, submitted as Exhibit A to the Declaration of Abbas Kazerounian, filed concurrently.



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Conducting factual and legal research into the merits of the TCPA claims;

discussing the facts with our client; conducting research on the Defendant

and whether Defendant had been investigated for any prior TCPA

violations of similar sort; drafting the Complaint, First Amended Complaint

and Second Amended Complaint, and reviewing Defendant’s responsive

pleadings.

25. Discovery. Hyde & Swigart spent approximately 32.20 hours on discovery

which included the following: preparing Plaintiff’s initial disclosures;

review of the Defendants initial disclosures and document production; draft

of written discovery, including confirmatory discovery; multiple written

and telephonic meet and confer conferences with opposing counsel in

regards to discovery extensions and disputes.

26. Settlement Negotiations and Settlement Approval. Hyde & Swigart spent

approximately 90 hours negotiating settlement and seeking the Court’s

approval of the settlement thereafter. My efforts included following:

preparing for and/or attending an Early Neutral Evaluation Conference, a

Case Management Conference, and a full-day mediation session;

negotiating specific settlement details subsequent to establishing general

settlement terms through mediation; reviewing the settlement agreement

including claims and notice forms, working on the motion for preliminary

approval, and preparing the present fee brief.

27. Claims Administration and Responding to Class Member’s Inquires. Hyde

& Swigart spent approximately 7.50 hours responding to class member’s

inquires and consulting with the Claims Administrator and Defendant’s

counsel regarding notice, claims, and website issues.

28. Anticipated Additional Hours Expended for Overseeing Settlement

Administration and Final Approval. I anticipate Hyde & Swigart will incur

an additional 45 hours for preparing the final approval hearing papers,



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appearing at the hearing, and overseeing the settlement administration.

Additional time may be needed should there be objections filed to the

Settlement – two objections were filed by Class Members and both were

later withdrawn after Class Counsel discussed the objections with the

objectors.

VII. CAREFUL REVIEW OF HYDE & SWIGART’S LODESTAR

AND DELETION OF DUPLICATIVE WORK

29. I personally reviewed the time reported in this action for all attorneys for all

attorneys, law clerks, paralegals, and other personnel. I have not included

and I am not making a request of the time spent by support staff at Hyde &

Swigart in this matter. Support hours have been excised from the requested

lodestar. This time billed to the file was removed based on reasonable

billing discretion and to ensure that Hyde & Swigart is not seeking

reimbursement for unnecessary duplication of efforts. I can therefore

confidently assert that the lodestar and hours reported in this declaration are

reasonable, particularly in light of our efforts and accomplishments in this

litigation.

VIII. INCENTIVE AWARD SOUGHT

30. As set forth in the Motion, the named class representative is applying for a

modest incentive award. The Class Representative, Rafael David Sherman,

is applying for a modest incentive award of $1,500. Mr. Sherman has been

active in this litigation and provided critical information to their counsel,

which made the successful litigation of this matter possible. Mr. Sherman

assisted with the factual investigation in his claims, reviewed settlement

proposals and made himself available telephonically for the formal

mediation.

31. The $1,500 incentive award sought by Mr. Sherman is modest for serving



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as class representative. SA § 6.

32. Based on the amount of work and involvement by Plaintiff, the small

incentive award in this case is justified.

I declare under penalty of perjury of the laws of California and the United

States that the foregoing is true and correct, and that this declaration was executed

in San Diego, CA on March 4, 2015. By: /s/ Joshua B. Swigart Joshua B. Swigart


IBEY DECL. IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA

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Plaintiff,

v.


Defendant.

Case No.: 13-cv-00981-JAH-JMA DECLARATION OF JASON A. IBEY IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT Date: April 27, 2015 Time: 2:30 p.m. Place: Courtroom 13B Judge: Hon. John A. Houston


IBEY DECL. IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT CASE NO. 13-CV-00981-JAH-JMA 1

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DECLARATION OF JASON A. IBEY

I, JASON A. IBEY, declare:

1. I am an attorney admitted to the State Bar of California on November 26,

2012, and have been a member in good standing since that time. I am also

admitted in every federal district in California and have handled federal

litigation in the federal districts of California. I am an associate with the law

firm Kazerouni Law Group, APC, and co-counsel for plaintiff Rafael David

Sherman (“Plaintiff”) in the above-captioned action against defendant Kaiser

Foundation Health Plan, Inc. (“Defendant”).

2. I have personal knowledge of the following facts and, if called upon as a

witness, could and would competently testify thereto, except as to those

matters which are explicitly set forth as based upon my information and

belief and, as to such matters, I am informed and believe that they are true

and correct.

3. I am writing this declaration in support of Plaintiff’s Motion for Attorneys’

Fees, Costs and Incentive Payment.

4. I have worked on this case, filed on April 24, 2013, since its inception.

5. I filed my notice of appearance in this case on April 26, 2013.

6. As an associate attorney working on this case, I incurred 65.40 hours of legal

work as of March 3, 2015, having maintained contemporaneous records of

hours worked and the task performed. More specifically, I have spent

approximately 2.7 hours assisting with case investigation, preparing the

complaints and reviewing pleadings and participating in the Case

Management Conference, approximately 17.30 hours addressing discovery

matters, approximately 6.6 hours preparing for the parties’ mediation session

including the mediation brief, approximately 29.30 hours assisting with the

motion for preliminary class action settlement, addressing class notice and

administration issues and objections to the settlement, and approximately



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9.50 hours working on the instant fee brief. I anticipate spending an

additional eight hours working on the motion for final approval of class

action settlement, for a total of 65.40 hours incurred in working on this case.

7. Prior to being admitted to practice law in California, I interned for the

Honorable Deborah Sanchez of the Los Angeles Superior Court, at the

Courthouse in Bellflower, California, for approximately two months.

8. Prior to being admitted to practice law in California, I also interned for

Kazerouni Law Group, APC for over one year, and was entrusted with

drafting numerous briefs in support of and in opposition to motions

concerning consumer actions, including class actions.

9. I have assisted with drafting two appeals to the Ninth Circuit Court of

Appeal, and I am currently assisting with the drafting on appeal to the Ninth

Circuit Court of Appeal that is currently due the beginning of April of 2015.

10. I predominantly practice in the Southern District of California; however, I

have litigated cases in each of the district courts in California.

11. I practice law exclusively in the area of consumer actions, with over 90% of

my legal practice dedicated to consumer class actions. I have been involved

in litigating dozens of consumer class actions.

12. I have actively participated in at least three private mediations involving

lawsuits for alleged violations of the TCPA.

13. I am a member of the following organizations:

a. The Orange County Chapter of the J. Reuben Clark Law Society;

b. The Orange County Bar Association;

c. Consumer Attorneys of California; and

d. The National Association of Consumer Advocates.

14. I have contributed significantly to several consumer class actions in which a

favorable published decision was issued, including but not limited to the

following cases:



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a. Sherman v. Yahoo!, Inc., 13-cv-00041-GPC-WVG (S.D. Cal.);

b. Stemple v. QC Holdings, Inc., 3:12-cv-01997-BAS-WVG (S.D. Cal.);

c. Barani v. Wells Fargo Bank, N.A., 3:12-cv-02999-GPC-KSC (S.D. Cal.);

d. Olney v. Job.com, Inc. et al., 12-cv-01724-LJO-SKO (E.D. Cal.);

e. Dake v. Receivables Performance Management, LLC, et al., 12-cv-01680-VAP-SP (E.D. Cal.); and

f. Webb v. Healthcare Revenue Recovery Group, LLC, 13-cv-00737-RS (N.D. Cal.).

15. I have served as plaintiff’s counsel in at least the following cases involving

various consumer rights claims (including class actions claims) under the

Telephone Consumer Protection Act:

a. Vacarro v. I.C. Systems, Inc., 12-cv-02371-JAH-NLS (S.D. Cal.);

b. Emanuel v. The Los Angeles Lakers, Inc., 12-cv-09936-GW-SH (C.D. Cal.);

c. Rivera v. Nuvell Credit Company LLC, 13-cv-00164-TJH-OP (E.D. Cal);

d. Sherman v. Yahoo!, Inc., 13-cv-00041-GPC-WVG (S.D. Cal.);

e. Olney v. Job.com, Inc. et al., 12-cv-01724 -LJO-SKO (E.D. Cal.);

f. Webb v. Healthcare Revenue Recovery Group, LLC, 13-cv-00737-RS (N.D. Cal.);

g. Holt v. Redbox Automated Retail, LLC, 11-cv-3046-DMS-RBB h. Hunter v. Pioneer Credit Recovery, Inc., 13-cv-02090 -JAK-DTB

(E.D. Cal.);

i. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. Cal.) (Pending class certification decision);

j. Heggen v. CitiBank N.A., et al., 13-cv-00021-MWF-PLA (C.D. Cal.);

k. Barrett v. Wesley Financial Group, LLC, et al., 13-cv-00554-LAB-KSC (S.D. Cal.) (Pending class certification decision);



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l. Cain v. Power Home Technologies, Inc., 13-cv-01507-H-WVG (S.D. Cal.);

m. Couser v. Comenity Bank, 12-cv-02484-MMA-BGS (S.D. Cal.) (preliminary approval granted);

n. Foote v. Credit One Bank, NA., et al., 13-cv-00512 -MWF-PLA (C.D. Cal.);

o. Island v. Chase Student Loan Services, LLC, 13-cv-02242-BEN-BLM (S.D. Cal.);

p. Montoya v. SLM Corporation et al., 14-cv-00287-KAW (N.D. Cal.);

q. Robinson v. Credit Control, LLC, 13-cv-01672 -DMS-WVG (S.D. Cal.);

r. Razavi v. IPSOS OTX Corp., et al., 13-cv-08972-FMO-MAN (C.D. Cal.);

s. Stemple v. QC Holdings, Inc., 3:12-cv-01997-BAS-WVG (S.D. Cal.) (class certification granted);

t. Newman v. AmeriCredit, 11-cv-03041-DMS-BLM (S.D. Cal.) (preliminarily approved for $8,500,000 on November 26, 2014);

u. Lemieux v. EZ Lube, Inc. et al., 12-cv-01791-BAS-JLB (S.D. Cal.) (finally approved for $479,364 on December 8, 2014);

v. Knutson v. Schwan’s Home Service, Inc. et al., 12-cv-00964-GPC- DHB (S.D. Cal.) (preliminarily approved for $ 2,535,280; final approval hearing held);

w. Barani v. Wells Fargo Bank, N.A., 12-CV-02999-GPC-KSC (S.D. Cal.) (preliminarily approved for $1,033,361.95; final approval hearing scheduled for March 6, 2015).

///

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///

///

///

///



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16. Therefore, I believe that my experience with consumer class actions,

despite having only been admitted to practice law in late 2012, is sufficient



Executed on March 4, 2015, pursuant to the laws of the United States of America

and the State of California at Costa Mesa, California.

/s/ Jason A. Ibey Jason A. Ibey


DECLARATION OF RAFAEL DAVID SHERMAN IN SUPPORT OF FEE BRIEF CASE NO. 13-CV-00981-JAH-JMA

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Plaintiff,

v.


Defendant.

Case No.: 13-cv-00981-JAH-JMA DECLARATION OF RAFAEL DAVID SHERMAN IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD Date: April 27, 2015 Time: 2:30 p.m. Place: Courtroom 13B Judge: Hon. John A. Houston


DECLARATION OF RAFAEL DAVID SHERMAN IN SUPPORT OF FEE BRIEF CASE NO. 13-CV-00981-JAH-JMA 1

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DECLARATION OF RAFAEL DAVID SHERMAN

I, Rafael David Sherman, declare:

1. I am a named Plaintiff in this above-captioned class action against defendant

Kaiser Foundation Health Plan, Inc., (hereinafter the “Defendant”).

2. I am filing this declaration in support of Plaintiff’s Motion For Attorneys’

Fees, Costs, and Incentive Award.

3. I, through my counsel, commenced this action on April 24, 2013 by filing a

putative class action complaint asserting causes of action for: (1) negligent

violation of Section 227(b)(3)(B) of the Telephone Consumer Protection Act

(“TCPA”), codified at 47 U.S.C. § 227 et seq., and (2) willful violation of

Section 227(b)(3)(B) of the TCPA (the “Complaint”). A First Amended

Complaint was filed on April 26, 2013. A Second Amended Complaint was

filed on August 15, 2013, which alleges that Defendant violated the

Telephone Consumer Protection Act by calling my cellular telephone without

my consent and encouraging me to re-apply for Kaiser coverage or to return

at the next opportunity.

4. I have participated throughout this litigation with the belief that I was

helping all other persons similarly situated to me. Before filing the

Complaint, I met with my attorneys for the initial consultation, participated

in calls regarding fact-finding efforts with my attorneys, held in person

meetings with my attorneys, made myself available telephonically during the

formal mediation which followed on February 4, 2014, submitted a

declaration in support of preliminary approval of class action settlement, and

now submit this declaration in support of the motion for attorneys’ fees,

costs and incentive award.

5. I have reviewed the Settlement Agreement that followed the mediation and

have discussed the settlement with my counsel. I believe the settlement is

fair, reasonable, and provides excellent benefits to the Class of past Kaiser



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KAZEROUNI LAW GROUP, APCAbbas Kazerounian, Esq. (SBN: 249203)[email protected] A. Ibey, Esq. (SBN: 284607)[email protected] Fischer Avenue, Unit DlCosta Mesa, CA 92626Telephone: (800) 400-6808Facsimile: (800) 520-5523

Attorneys for Plaintiff and ProposedSettlement Class

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIA

RAFAEL DAVID SHERMAN,Individually And On Behalf OfAll Other Similarly Situated,

Plaintiff,

v.

KAISER FOUNDATIONHEALTH PLAN, INC., a/k/aKAISIER PERMANENTE,

Defendant.

Case No.: 13-cv-00981-JAH-JMA

DECLARATION OF TODD M.FRIEDMAN IN SUPPORT OFPLAINTIFF'S MOTION FORATTORNEYS' FEES, COSTS, ANDINCENTIVE AWARD

Date: April 27, 2015Time: 2:30 p.m.Place: Courtroom 13BJudge: Hon. John A. Houston

DECLARATION OF TODD M. FRIEDMANCASE No.: 13-CV-00981-JAH-JMA


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DECLARATION OF TODD M. FRIEDMAN

I, TODD M. FRIEDMAN, declare:

1. I regularly practice before the United States District Court for the Southern

District of California. My firm is The Law Offices of Todd M. Friedman, P.C.

Although I predominantly practice in the United States District Court for the

Central District of California, I am familiar with the hourly rates charged by

attorneys who practice in the Southern District.

2. I have been licensed to practice law in the State of California since 2001. A

large part of my practice focuses on consumer related issues and litigaiton.

These cases include both individual as well as complex actions.

3. I have known attorneys Joshua B. Swigart and Abbas Kazerounian for several

years, and I am also familiar with their legal work, as they and I have similar

consumer law practices and practice in this federal district.

4. The hourly rate in the United States District Court for the Southern District of

California for an attorney with Mr. Swigart's experience and expertise in

consumer class action litigation would be in the rage of $595.00 per hour for

complex litigation. Therefore, $595.00 per hour, in my opinion, is a reasonable

hourly rate and appropriate for Mr. Swigart.

5. The hourly rate in the United States District Court for the Southern District of

California for an attorney with Mr. Kazerounian's experience and expertise in

consumer class action litigation would be in the range of $565.00 per hour in

this type of complex litigation. Therefore, $565.00 per hour, in my opinion, is a

reasonable hourly rate and appropriate for Mr. Kazerounian.

6. I have also known Jason A. Ibey for a couple years, and I am familiar with his

legal work. The hourly rate in the United States District Court for the Southern

District of California for an attorney with Mr. Ibey's experience in consumer

class action litigation would be in the range of $365.00 per hour in this type of

DECLARATION OF TODD M. FRIEDMANCASE No.: 13-CV-00981-JAH-JMA 1


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hourly rate and appropriate for Mr. Ibey.


Executed on February % 2015, pursuant to the laws of the United States and the

State of California., at Los Angeles, California.

By:

TODD M. FRIEDMAN

DECLARATION OF TODD M. FRIEDMANCASE No.: 13-CV-00981-JAH-JMA


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KAZEROUNI LAW GROUP, APCAbbas Kazerounian, Esq. (SBN: 249203)[email protected] A. Ibey, Esq. (SBN: 284607)

[email protected] Fischer Avenue, Unit DICosta Mesa, CA 92626Telephone: (800) 400-6808Facsimile: (800) 520-5523

Attomeys for the Plaintiffand ProposedSettlement Class


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RAFAEL DAVID SHERMAN,

LnlFI8idh:raELAiFadrl?nsiTueEta#,ofPlaintiff,

V.


Defendant.

Case No.: 13-cv-00981-JAH-m4A

DECLARATION OF STEPHEN a.RECORDON IN SUPPORT OFPLAINTIFF,S MOTION FORATTORNEYS9 FEES, COSTS,AND INCENTIVE AWARD

Date: Apri127, 2015Time: 2:30p.m.Place: Courtroom 13BJudge: Hon. John A. Houston

DECLARATION OF STEPHEN G. RECORDONCASE No. 13-cv-00981-JAH-JMA


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DECLARATION OF STEPHEN a. RECORDON

I, STEPHEN G. RECORDON, declare:

1. I regularly practice before the United States District Court for the Southem

District of Califomia, and I am familiar with the hourly rates charged by

attomeys who practice in this Court.

2. I have been licensed to practice law in the State of Califomia since 1980. I am

a partner with the law flrm Of Recordon & Recordon. A large part of my

practice focuses on consumer related issues and litigation. These cases include

both individual as well as complex actions.

3. I have ]mown attomeys Joshua B. Swigart and Abbas Kazerounian for several



4. The hourly rate in the United States District Court for the Southem District of

Califomia for an attomey with Mr. Swigart,s experience and expertise in





Califomia for an attomey with Mr. Kazerounian,s experience and expertise in


this type ofcomplex litigation. Therefore, $565.00 per hour, in my opinion, is a



Executed on March& , 2015, pursuant to the laws of the United States and the

State ofCalifomia, at Sam Diego, Califomia.

DECLARATION OF STEPIIEN a. RECORDONCASE No. 13-cv-00981-JAH-JMA


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KAZEROUNI LAW GROUP, APCAbbas Kazerounian, Esq. (SBN: 249203)[email protected] A. Ibey, Esq. (SBN: 284607)[email protected] Fischer Avenue, Unit DICosta Mesa, CA 92626Telephone: (800) 400-6808Facsimile: (800) 520-5523

Attomeys for Plaintiffand ProposedSettlement Class


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RAFAEL DAVID SHERMAN,

LnlFlt;vlidh:ral#mAiFadr1?nSiTueEta#,of

Plaintiff,

V.


Defendant.

Case No.: 13-cv-00981-JAH-m4A

DECLARATION OF CLINTONROONEY IN SUPPORT OFPLAINTIFF,S MOTION FORATTORNEYS9 FEES, COSTS,AND INCENTIVE AWARD

Date: Apri127, 2015Time: 2:30p.m.Place: Courtroom 13BJudge: Eon. John A. Houston

DECLARATION OF CLINTON RooNEYCASE No. 13-cv-00981-JAH-JMA


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DECLARATION OF CLINTON ROONEY

I, CLINTON ROONEY, declare:

1. I regularly practice before the United States District Court for the Southem

District of Califomia, and I am familiar with the hourly rates charged by

attomeys who practice in this Court.

2. I have been licensed to practice law in the State of Califomia for over ten years.

A large part of my practice focuses on consumer related issues and litigation.

These cases include both individual as well as complex actions.

3. I have lmown attomeys Joshua B. Swigart and Abbas Kazerounian for several




Califomia for an attomey with Mr. Swigart's experience and expertise in





Califomia for an attomey with Mr. Kazerounian,s experience and expertise in


this type ofcomplex litigation. Therefore, $565.00 per hour, in my opinion, is a



Executed on March Ji, 2015 pursuant to the laws of the United States and the

State ofCalifomia, at Sam Diego, Califomia.

I?

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CLINTON RooNEY

DECLARATION OF CLINTON RooNEYCASE No. 13-cv-00981-JAH-JMA


PROOF OF SERVICE Case No.: 13-cv-00981-JAH-JMA 1 OF 2

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Kaz

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PROOF OF SERVICE

I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Kazerouni Law Group, APC, 245 Fischer Avenue, Suite D1, Costa Mesa, California 92626. On March 4, 2015, I served the within document(s):

NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF JOSHUA B. SWIGART IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF JASON A. IBEY IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF RAFAEL DAVID SHERMAN IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF TODD M. FRIEDMAN IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF STEPHEN G. RECORDON IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT DECLARATION OF CLINTON ROONEY IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT

S CM/ECF - by transmitting electronically the document(s) listed above to the electronic case filing system on this date before 11:59 p.m. The Court’s CM/ECF system sends an e-mail notification of the filing to the parties and counsel of record who are registered with the Court’s CM/ECF system.

I am readily familiar with the firm's practice of collection and processing


PROOF OF SERVICE Case No.: 13-cv-00981-JAH-JMA 2 OF 2

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correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 4, 2015, at Costa Mesa, California.

___/s/ Abbas Kazerounian___ ABBAS KAZEROUNIAN
