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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-05-2012 1:41 pm
Case Number: CGC-11-516586
Filing Date: Jul-05-2012 1:38
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DECLARATION
ANTHONY E HELD VS. TWO'S COMPANY, INC. et al
001003676638
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Josh Voorhees, State Bar No. 241436
Rachel S. Doughty, State Bar No. 255904
THE CHANLER GROUP
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
Attorneys for Plaintiff
ANTHONY E. HELD, PH.D., P.E.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
ANTHONY E. HELD, PH.D., P.E.,
Plaintiff,
TWO’S COMPANY, INC.; et al.,
Defendants.
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Case No. CGC-11-516586
DECLARATION OF RACHEL S.
DOUGHTY IN SUPPORT OF
MOTION TO APPROVE
PROPOSITION 65 SETTLEMENT
AND CONSENT JUDGMENT
Date: August 24, 2012
Time: 9:30 a.m.
Dept. 302
Judge: Hon. Harold E. Kahn
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTI, Rachel S. Doughty, declare as follows:
1. I am an attorney licensed to practice in California. I represent plaintiff, Anthony E.
Held, Ph.D., P.E. (“Held” or “Plaintiff), and am one of the attorneys of record in this Health and
Safety Code section 25249.6 et seq. (“Proposition 65”) action. I have personal knowledge of the
facts set forth in this declaration or have been informed by those individuals who have personal
knowledge of the facts, and could and would competently testify hereto if called upon to do so.
2. Held brought this action as pursuant to Health and Safety Code section 25249.7,
subdivision (d) in order that he might promote awareness of exposures to toxic chemicals and
improve human health by reducing or eliminating hazardous substances contained in consumer
products.
3, Defendant, Two’s Company, Inc. (“Defendant” or “Two’s Company”), and Held,
with Held and Two’s Company collectively referred to as the “parties,” have reached a resolution
of this action through the mutual execution of a settlement agreement in the form of a “[Proposed]
Consent Judgment” (“Consent Judgment”). A true and correct copy of the fully executed Consent
Judgment is attached hereto as Exhibit A.
Investigation, Litigation and Settlement Background
4. Prior to the issuance of the 60-Day Notice of Violation (“Notice”) and the
Supplemental 60-Day Notice of Violation (“Supplemental Notice”), or the commencement of this
action, Plaintiff's investigation concluded that Defendant manufactured, imported, distributed,
and/or sold certain consumer products without the requisite health-hazard warning for the
Proposition 65-listed chemicals di(2-ethylhexyl)phthalate (“DEHP”) and lead. Plaintiff alleges
that handling such products causes consumers to become exposed to DEHP and lead. DEHP and
lead are listed pursuant to Proposition 65 as chemicals that are known to the State of California to
cause birth defects or other reproductive harm.
5. On April 8, 2011, Held served Two’s Company and various public enforcement
agencies with the Notice, alleging that Two’s Company was in violation of Health and Safety
Code section 25249.6 for failing to warn its customers and consumers in California that cosmetic
cases/bags such as the Mindy Weiss Bridesmaid Cosmetic Bag #8850 (#0 19218 08850 2) exposed
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DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTusers to DEHP. On September 19, 2011, Held served Two’s Company and various public
enforcement agencies with the Supplemental Notice, alleging that Two’s Company was in
violation of Health and Safety Code section 25249.6 for failing to warn its customers and
consumers in California that cosmetic cases/bags such as the Mindy Weiss Bridesmaid Cosmetic
Bag #8850 (#0 19218 08850 2) exposed users to DEHP and luggage tags such as the Hide & Seek
Luggage Tag, #41169-20 (#0 19218 72065 5) exposed users to lead and/or DEHP. The Notice and
Supplemental Notice will hereinafter be referred to as the “Notices.” On December 14, 2011, Held
filed the instant action (“Complaint”), against Two’s Company for the violations alleged in the
Notices.
6. On or about June 12, 2012, the parties finalized and entered into the Consent
Judgment, a settlement that resolves Held’s claims against Two’s Company for the alleged
violations of Proposition 65 with respect to the specific products identified by name and Universal
Product Code in the Notices and Complaint.
7. The Consent Judgment resolves all of Held’s claims against Two’s Company for
the violations of Proposition 65 alleged in the Notices and Complaint related to DEHP in the
Mindy Weiss Bridesmaid Cosmetic Bag #8850 (#0 19218 08850 2) and lead and DEHP in the Hide
& Seek Luggage Tag, #41169-20 (#0 19218 72065 5) (together, the “Products”), which were
manufactured, imported, distributed, sold and/or offered for sale by Two’s Company, directly or
through others, to consumers in California.
8. The Settlement is a product of extensive arm’s-length negotiations between the
parties, each of whom was represented by experienced counsel. The settlement discussions
included numerous e-mails and telephone calls between counsel during which the parties
exchanged product sales data, laboratory results, and other information relevant to settlement, both
orally and in writing. In negotiating the Settlement, Held and his counsel first sought agreement
with Two’s Company regarding injunctive terms. The parties’ counsel next addressed the basis for
calculating the monetary amounts to be paid in civil penalties. Finally, through counsel, the parties
negotiated the reimbursement of a portion of Held’s attorneys’ fees and costs.
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Selected Contents of Consent Judgment Constituting Significant Public Benefit
9. The Consent Judgment requires as of June 15, 2012, that Defendant shall not ship,
sell, distribute, or supply to an unaffiliated third party any Products that will be sold or offered for
sale to California consumers unless each accessible component (i.e., any component that can be
touched, handled, or mouthed by a person during reasonably foreseeable use) of any such Product
contains DEHP in concentrations less than 1,000 parts per million when analyzed pursuant to U.S.
Environmental Protection Agency sample preparation and test methodologies 3580A and 8270C,
and contains no more than 50 parts per million of lead when analyzed pursuant to EPA testing
methodologies 3050B and/or 6010B, and 1.0 microgram when analyzed pursuant to the NIOSH
9100 testing protocol. This reformulation standard is consistent with state and federal regulations
and has been approved by trial courts throughout the State of California as reasonable.
10. Proposition 65 regulations state that the determination of whether a level of
exposure to a chemical known to the state to cause birth defects or reproductive harm poses “no
observable effect” shall be based on evidence and standards of comparable scientific validity to the
evidence and standards which form the scientific basis for the listing of the chemical. It does not
preclude a person from using evidence, standards, risk assessment methodologies, principles,
assumptions, or levels not described in the article to establish that the level of exposure to a listed
chemical has “no observable effect.” (Cal. Code Regs., tit. 27, § 25701 et seq.)
11. Under the terms of the Consent Judgment, Two’s Company will pay $3,500 in civil
penalties (after application of a credit of $6,500 agreed to by Held in response to Two’s
Company’s commitment to reformulate its Products). The penalty amount was agreed to after
arm’s-length negotiations and is based on the facts and circumstances of this case. Almost all of
the facts that would and do support the civil penalty assessment factors under the statute were
strenuously contested in this case. This determination was made upon consideration of the factors
set forth in Health and Safety Code section 25249.7, subdivision (b)(2) and information, such as
sales data, provided by Two’s Company during settlement negotiations. Plaintiff considers the
sale of the Products without the requisite warnings a serious violation of the statute, and disputes
that Two’s Company has any viable defenses. Two’s Company, however, has demonstrated its
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commitment to complying with Proposition 65 and has agreed to compensate the public for its
alleged past violations. Two's Company’s cooperation in the settlement process, its agreement to
resolve this case without the expense of a trial, and similar settlements with Two’s Company’s
competitors were also material factors in determining the amount of civil penalties.
Reasonable Reimbursement of Attorneys’ Fees and Costs
12. The Consent Judgment requires that Two’s Company reimburse a portion of the
attorneys’ fees, investigation fees and costs, expert and consultant fees, and litigation costs
Plaintiff incurred in this case, as well as the cost incurred in connection with judicial approval of
the settlement, and to fully conclude this matter. Rather than have Plaintiff file a separate fee
application with the Court, the parties agreed to negotiate the fee component of the settlement prior
to finalizing and submitting the Consent Judgment to the Court.
13. As a result of these negotiations, and in order to facilitate the settlement of this case,
counsel for Plaintiff agreed to accept $19,000 as a resolution of attorneys’ fees, investigation fees,
and costs incurred throughout this enforcement action, including this motion for judicial approval.
The parties reached this agreement in accordance with general contract principles and the private
attorney general doctrine codified at Code of Civil Procedure section 1021.5. In the course of
investigating, litigating, and negotiating the settlement of this case, Plaintiff incurred
approximately $116,979 in attorneys’ fees and costs, after the exercise of billing judgment. I
believe that this amount is properly tabulated and supported by the summary records I have
reviewed. The amount of these fees incurred greatly exceeds the amount to be paid by Two’s
Company, resulting in a significant forfeiture of Plaintiffs fees and costs.
14. Below I provide a task-based summary of the efforts undertaken to successfully
conclude this action, for which my firm will be reimbursed $19,000. The time for attorneys,
paraprofessionals and clerks is organized into five stages of a Proposition 65 action: (1) the
investigation stage, including all steps necessary to conduct and conclude a successful
investigation; (2) the notice stage, including review of all investigation and testing material for
preparation of the Notices and Certificates of Merit; (3) the litigation stage, including all activities
from the preparation of the Complaint through any discovery and motion practice; (4) the
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settlement stage, including negotiation and preparation of the terms of the Consent Judgment, and
reporting the settlement to the Attorney General’s Office; and (5) the approval stage, including
drafting and revision of the motion to approve and the accompanying memorandum of points and
authorities, declaration, and exhibits, responding to any objections which may be posed, and
appearing at the approval hearing. Costs associated with the case form a sixth category, and
include filing fees, postage, and copy expense.
15. Attached as Exhibit B to this declaration is a “Statement of Fees and Costs” The
Chanler Group (“TCG”) employees and contractors billed during each stage of this case. The
breakdown also includes the total costs incurred. The following paragraphs represent a general
composite of tasks associated with investigation, notice, litigation, settlement, and approval as
follows:
15.1 During the pre-notice investigation stage, investigation staff perform eight
categories of activities. The time attributable to these eight subcategories of the investigation stage
is found in Category I of Exhibit B. The categories include, but are not limited to, the noted tasks:
15.1.1 Violator Identification and In-Office Investigation
Identifying and investigating one or more violators; identifying and investigating any
upstream or downstream manufacturers, distributors, and retailers; researching and verifying
violator attributes, including business locations, number of employees, executive staff
composition, net worth and annual sales; and reviewing product lines, product literature and
advertising, and any associated product warnings.
15.1.2 Field Investigation
Reviewing online retail locations and traveling to and from multiple brick-and-mortar retail
locations throughout California; examining store entrances, exteriors and interiors, including all
departments, points-of-sale, and customer service areas for any visible Proposition 65 signage, and
recording pertinent information; purchasing, taking custody of, and securing the products at issue
and with the corresponding receipts; completing a field investigation report; and transferring
custody of the products to an office investigator.
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT15.1.3 Intake Process
Taking office custody and inventory of each product purchased, together with all field
investigation forms and receipts; duplicating receipts for the product file; reviewing and quality
control of field investigation forms; preparing a computerized investigation report; reviewing
product labeling and packaging for breakage and cracks; recording product attributes, including
component parts, product design, color, flexibility, texture and scent; assigning a control or
evidence number and storage location; photographing the products, packaging and labeling;
updating the investigation file; storing evidence; documenting chain of custody throughout the
internal investigation; reviewing all processes and procedures followed to assure conformance with
established standards; and preparing case summary reports.
15.1.4 Testing
Preparing all required pre-testing forms and documentation; conducting in-office X-ray
Fluorescence (“XRF”) testing of products for chemical content and generating reports; ordering
tests and confirming testing protocols with laboratories; reviewing all test results and quality
control reports upon receipt; and recording results.
15.1.5 Expert Consultation
Preparing for and meeting with retained experts to discuss and review product information,
laboratory analyses, and the source, routes, and magnitude of potential exposures; and reviewing
support for the required Certificates of Merit prepared by the expert.
15.1.6 Case File Preparation
Compiling investigative work product and assembling a case file.
15.1.7 Notice Preparation
Assisting attorneys with preparation of the Notices, including reviewing the chemicals at
issue, routes of exposure, the relevant time period, the product and product type descriptions, the
manufacturers, distributors and retailers involved, the location of the violations, the service
addresses, and the Certificates of Merit and supporting scientific basis.
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT15.1.8 Project Management
Developing an in-depth field investigation to inspect, assess and secure evidence;
overseeing execution of investigation plan; advising attorneys regarding XRF testing and
laboratory testing; communicating with the client as needed.
15.2 For the notice stage, including all activities leading to the issuance of a
notice, legal staff perform the following tasks including, but not limited to: (1) consulting initially
with the client regarding a specific Proposition 65 violation and discussing issuance of the notice;
(2) consulting internally with investigative staff regarding the specific Proposition 65 violation; (3)
reviewing investigation reports regarding the products and chemicals at issue; (4) reviewing the
location of purchases, whether any warnings signs or labels were observed on or near the products
at issue, and the identities of any manufacturers, distributors, importers, or retailers involved in the
violation; (5) consulting with an expert and reviewing the expert’s letter used to support the
Certificate of Merit for the notice; (6) reviewing financial and legal information regarding all
potential defendants, including the number of employees, location of business, and type of
business; (7) consulting further with the client regarding the results of the investigation, testing
results, chemicals involved, category of products, and specific information about the entities who
will or will not receive the notice; (8) preparing an investigative case file for issuance of the notice;
(9) scheduling and calendaring of the issuance of the notice; (10) reviewing the case file and
investigative file in preparation for drafting and editing the notice; (11) executing the Certificates
of Merit for the notice; and (12) finalizing and issuing the notice, including perfecting service of
the notice on all applicable parties. The time attributable to the notice stage of this enforcement
action is found in Category II of Exhibit B.
15.3 For the litigation stage, including all activities from the expiration of a
notice to resolution of the matter, Plaintiffs counsel, paralegals, and clerks perform the following
tasks including, but not limited to: (1) reviewing the notice and preparing the case file; (2) adding
the matter to the firm’s calendar and calendaring the notice’s expiration date; (3) reviewing the
letter of representation or the initial communication with the noticed entity or its defense counsel;
(4) updating the firm’s contact list regarding the noticed entity and any defense counsel; (5)
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researching the applicable statute of limitations; (6) researching the agent for service of process of
a noticed entity; (7) selecting the proper venue for the action; (8) researching, drafting, editing,
reviewing, and executing the Complaint; (9) preparing the summons and civil case cover sheet;
(10) updating the firm’s database with the Complaint filing date; (11) coordinating and conducting
the service of the Complaint and summons; (12) reviewing the completed proof of service from
process servers or returned certified mail proofs of receipt; (13) completing and preparing
summons and proof of service of summons for filing with the court; (14) calendaring the
responsive pleading date; (15) calendaring the first day to issue discovery; (16) researching,
drafting, and propounding written discovery; (17) preparing and filing case management
statements; (18) attending case management conferences; (19) legal research; and (20) motion
practice as necessary. The time attributable to the litigation stage of this enforcement action is
found in Category III of Exhibit B. Because of the extensive litigation in this matter, Category III
is divided into the following subcategories: Complaint; Case Management; Discovery (Written);
Discovery (Deposition); Motion to Compel; and Removal to Fedearl Court and Remand.
15.4 The settlement stage includes, but is not limited to, the following activities:
(1) reviewing prior judgments to ensure consistency in enforcement; (2) preparing and drafting the
Consent Judgment; (3) negotiating, editing, and revising provisions of the Consent Judgment with
opposing counsel; (4) discussing settlement offers and demands with the client; (5) negotiating
injunctive terms; (6) reviewing applicable factors for civil penalties and negotiating civil penalties;
(7) negotiating attorneys’ fees and costs; (8) calendaring compliance schedules; and (9) reporting
the settlement to the Attorney General. The time attributable the settlement stage of this
enforcement action is found in Category IV of Exhibit B.
15.5 The Motion to Approve stage consists of the activities required to bring the
Consent Judgment before the Court for approval, including, but not limited to: (1) drafting the
notice of motion and motion to approve the Consent Judgment; (2) drafting the memorandum of
points and authorities in support of the motion to approve; (3) drafting the declaration in support of
the motion to approve; (4) preparing an affidavit of compliance with pertinent regulations; (5)
service of the motion on defense counsel and the Attorney General; (6) calendaring all briefing
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deadlines and hearings; (7) reviewing and responding to any concerns and/or objections from the
Attorney General; (8) appearing at the hearing on the motion to approve; (9) preparing any
requested supplemental briefing; (10) preparing and serving the notice of entry of judgment; (11)
review of any compliance report and attendance at any needed compliance hearing; and (12)
otherwise complying with the terms of the Consent Judgment. The time attributable to the judicial
approval of stage of this enforcement action is found in Category V of Exhibit B.
16. The negotiated reimbursement of fees and costs includes partial recovery of the
$22,639.36 in investigation fees incurred by Held, as recorded in Category I of Exhibit B. As
discussed above, in Proposition 65 actions brought by plaintiffs represented by TCG, including this
case, the investigation stage includes eight subcategories of tasks: (1) violator identification and
in-office investigation; (2) field investigation; (3) intake process; (4) testing; (5) expert
consultation; (6) case file preparation; (7) notice preparation; and (8) project management.
17. Beginning in or around late-2008, TCG began employing a court-approved
averaging of investigation subcategories (1), (5), (6), and (8) in motions to approve Proposition 65
settlements. Fees from these subcategories are based on averages calculated from the same
subcategories across nine sample cases, and represent a cross-section of cases brought by one of
TCG?’s clients involving Proposition 65 violations, including cases brought against a diverse mix
of manufacturers, distributors, and retailers of varying sizes. These four investigative
subcategories are derived from an average because the time necessary to complete the tasks in each
subcategory is consistent from one case to another and from one staff member to another, making
the average of these subcategories a reasonable standard of the time actually incurred. For
example, in subcategory 1, the time it takes to identify the alleged violator, research the relevant
Secretary of State records, and determine the entity’s legal status is virtually identical from one
company to another. In subcategory 5, the initial time spent consulting with an expert is uniform
from one case to the next. In subcategory 6, the time spent preparing and maintaining a case file is
similar from one case to another because my firm follows uniform procedures for maintaining its
case files. Similarly, in subcategory 8, the time needed to manage the project is also consistent
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across cases based upon set procedures for case oversight. Accordingly, the time and fees incurred
for these four subcategories do not vary substantially and are capable of being averaged.
18. The fees in the following four investigation subcategories varied broadly across the
nine sample cases depending on the size of each investigation: (2) field investigation; (3) intake
process; (4) testing; and (7) notice preparation. To control for this variance, a task-based value
was calculated for each activity performed in these subcategories. The task-based value is reported
each time that a task is performed in a particular subcategory for a particular product. For
example, time is reported: (i) for each product tested in the testing subcategory; (ii) for each
product purchased in the field investigation; (iii) for each product processed in the intake
subcategory; and (iv) for each notice issued in the notice subcategory. This process ensures
accurate accounting of the fees associated with both larger, more complex, and smaller, less
complex investigations.
19. Based on TCG’s review of motions to approve Proposition 65 settlements in cases
brought by its clients, motions utilizing this method to calculate the pre-notice investigative fees
have been granted in dozens of cases by each of the Superior Courts in the Bay Area, including the
trial courts for Alameda, Contra Costa, Marin, Sacramento, San Francisco, San Mateo, and Santa
Clara counties. Use of this model to calculate the investigative fees ensures accuracy in each case
without requiring investigative and accounting personnel to invest significant time and resources to
determine a per-case fee calculation.
20. For all categories on Exhibit B other than the investigation stage, attorneys,
paralegals, auditors, investigators, expert and other professionals and paraprofessionals are
instructed to keep near-contemporaneous time records of their work. I am informed and believe
that those contributing time to this case keep their records in this manner, and that the records were
computerized, summarized, and reviewed. The Statement of Fees and Costs, attached as Exhibit
B, identifies each individual who recorded time; that individual’s billing rate(s); the amount of
time billed at each rate; and the total amount of corresponding fees. Below, I provide a summary
of the professional background, qualifications, and experience of each individual who billed time
to this case.
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DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT21. Josh Voorhees received his law degree in 2003 from Santa Clara University, where
he was a member of the Law Review. He is admitted to practice in Connecticut, New York, and
California. He has practiced civil litigation for over eight years and started working with Mr.
Chanler in 2005. He began representing citizen enforcers in Proposition 65 matters in 2006 upon
gaining admission to the California Bar. He has experience at every stage of litigation, from client
consultation, to investigation, written discovery, depositions, settlement negotiations, mediation,
arbitration, and trial. He has written and argued dozens of motions, briefs, and oppositions to
motions in both federal and state court. He has assisted lead trial counsel in pre-trial and trial
activities. His experience in Proposition 65 litigation includes conducting extensive written
discovery, taking fact and expert witness depositions, writing and arguing motions, negotiating
settlements, obtaining court approval of settlements, and preparation of cases for trial. His hourly
rates are $525 for 2011 and $545 for 2012. These rates were established taking into consideration
his years of experience, the specialized nature of Proposition 65 litigation, and his role as the
managing attorney for TCG.
22. Brian Johnson received his law degree with a certificate of specialization in
Environmental Law in 2004 from Tulane University Law School. He is admitted to practice in
California and the federal District Court for the Northern District of California. Mr. Johnson has
practiced civil litigation for over seven years, which includes trial and appellate experience in
environmental, residential and commercial real estate, and insurance law. He started working with
TCG in 2010, representing private citizens in enforcement actions brought under Proposition 65.
Mr. Johnson has experience in all stages of litigation, from client consultation, to investigation,
written discovery, depositions, settlement negotiations, mediation, arbitration, and trial. He has
considerable motion practice experience including drafting motions, oppositions, and supporting
memoranda and obtaining many successful rulings following oral argument. For more than two
years Mr. Johnson’s practice has been devoted entirely to Proposition 65 litigation, including
independent case management of dozens of cases from the service of the initial 60-day notice of
violation up through the time of trial. Mr. Johnson’s billing rate was $445 for 2011 and is $460 for
2012. These rates were established taking into consideration his years of environmental and
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litigation experience, the specialized nature of Proposition 65 litigation, and his responsibilities
and experience as an associate of the firm.
23. — Lalso incurred and billed time in this matter. I received my law degree from the
University of Virginia in 2004. I also have a B.S. in Biochemistry, Cellular, and Molecular
Biology from the University of Tennessee and an M.S. in Natural Resources with a minor
concentration in Biogeochemistry from Cornell University. Prior to attending law school I was a
fellow at the United States Environmental Protection Agency and performed cancer research at
Vanderbilt University. I am admitted to practice in North Carolina as well as California and the
federal district courts of the Eastern District of California and the Western District of North
Carolina. I commenced working with TCG in 2011, representing private citizens in enforcement
actions brought under Proposition 65. My work with TCG comprises approximately half of my
practice. My practice also includes representing citizens in federal Clean Water Act, Endangered
Species Act, and Administrative Procedure Act cases, which have similar elements to Propositon
65 cases. I have experience in all stages of litigation, including client consultation, investigation,
discovery, settlement negotiations, and trial. For over two years I worked at Paul, Hastings,
Janofsky, and Walker, LLP (“Paul Hastings”), where my practice was entirely environmental law,
including Proposition 65 compliance counseling for businesses. When I left Paul Hastings in early
2010 my billing rate was $530 and would now be over $600. My billing rate for 2011 at TCG was
$525 per hour and it is presently $545. This rate was established taking into consideration my
years of environmental and litigation experience, my science education, the specialized nature of
Proposition 65 litigation, and my responsibilities at TCG.
24. Rosalind Conrad is the managing paralegal at TCG. She joined the firm in March,
2006. Before joining TCG, from 2002 to late 2005, she worked as a bankruptcy paralegal and as
the in-office notary public at the Law Offices of Walter D. Wagoner in New Haven, Connecticut.
She has accumulated over nine years experience as a paralegal, and during her time with TCG has
supported multiple attorneys in hundreds of Proposition 65 matters, including multiple cases that
have gone to trial. Ms. Conrad oversees the legal support staff of TCG’s Berkeley office as well as
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the legal support staff in other offices. Ms. Conrad’s billing rates are $255 for 2011 and $265 for
2012.
25. Dennis Johnson is a paralegal who joined the firm in 2000 while attending the
University of California at Berkeley, from which he earned a B.A. in 2003. Starting in 2005 Mr.
Johnson attended the University of Connecticut School of Law while continuing to work for TCG
in its New Canaan office While attending law school, Mr. Johnson interned as a law clerk at both
United Technologies Corporation and the United States Postal Service’s employment law division,
and clerked for Moore Leonhardt & Associates in Hartford, Connecticut, where he gained valuable
pre-trial preparation experience. Mr. Johnson received his J.D. from the University of Connecticut
School of Law in 2008, and shortly thereafter continued his relationship with TCG when he
became a paralegal in its Berkeley office in 2009, then its Silicon Valley office in 2011. Mr.
Johnson’s billing rates are $270 for 2011 and $280 for 2012.
26. Cynthia Price is a senior paralegal who performs paraprofessional tasks at all stages
of litigation. Ms. Price joined TCG in 2011. She earned a B.A. from Mills College in May, 1992.
She earned her Paralegal Certificate from San Francisco State University in June 2008. Before
joining TCG, Ms. Price was the office manager and a notary public at the Law Offices of Herzig
and Berlese in San Francisco. She has six years of experience in an administrative capacity and
five in legal support. Ms. Price’s billing rates are $255 for 2011 and $265 for 2012.
27. Eleanor Chen-Ranstrom is TCG’s billing administrator. In this role, Ms. Chen-
Ranstrom oversees and monitors TCG’s contemporaneous time records, prepares fee and cost
summaries for attorneys, and works closely with attorneys in the preparation of materials
submitted in support of motions to approve negotiated settlements, contested fee applications,
mediations, and arbitrations. Ms. Chen-Ranstrom earned a B.A. in Anthropology and Sociology in
May 2007. She started at TCG in September 2007. Ms. Chen-Ranstrom’s billing rate is $205 for
2012.
28. Allison Carr is a legal assistant who works closely with attorneys and paralegals at
all stages of litigation. Ms. Carr assists in the preparation of draft legal documents for attorney
review and assists attorneys in the revision of these documents. Ms. Carr is one of the legal
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DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTassistants that oversees TCG’s legal calendar and tracks statutory and internal deadlines with
attorneys. Ms. Carr assists attorneys with the assembly, filing, and service of legal documents at
all stages of litigation. Ms. Carr began working for TCG in January, 2010. Before joining TCG,
Ms. Carr worked in various administrative support positions for a combined four years previous
office experience. Ms. Carr’s billing rates are $120 for 2011 and $125 for 2012.
29. Bernice Dea is the director of investigation at The Chanler Group. She directs,
manages, and oversees all investigation staff and investigation activities/tasks related to alleged
Proposition 65 violations on behalf of the firm’s clients, including plaintiff Anthony Held in this
Proposition 65 action. During the past fifteen years, she has been the managing investigator on
thousands of Proposition 65 matters. She directs a team of managers, senior and junior field
investigators, and several in-office personnel--all of whom specialize in Proposition 65
investigations. Ms. Dea has conducted investigations for the following law firms: Chanler Law
Group, Paras Law Group, Martin Law Group, Sheffer & Chanler LLP, Hirst & Chanler LLP, and,
most recently, The Chanler Group. She is licensed by the State of California, Department of
Consumer Affairs, Bureau of Security and Investigative Services as a private investigator. Ms.
Dea is also responsible for all staff training, design and implementation of all policies and
procedures, and assistance with litigation support including discovery, depositions, trial
preparation, and trial testimony. I know of no other investigator, public or private, with as much
Proposition 65 experience. Her billing rate, as the director of investigation, was $400 in 2011 and
is $420 in 2012.
30. | Suzanne Miller is the filing clerk at TCG. She works closely with all legal files to
ensure proper organization throughout the entire litigation process. Ms. Miller assists attorneys
with complaint service, drafting related service documents, and filing documents with the court.
Ms. Miller joined TCG in December, 2010 with one year of experience as a legal filing clerk. She
has over two years of office experience and four years of customer service experience. Ms. Miller
began attending law school part-time in 2009 and is a 2013 J.D. candidate. Ms. Miller’s billing
rate is $125 in 2012.
14
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENToO ND HW PB YW N
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31. | am informed and believe that the hourly rates charged in this case are reasonable.
TCG investigates and prosecutes Proposition 65 actions on behalf of private enforcers primarily in
the San Francisco Bay Area. The founding attorney of TCG and one of the founding attorneys of
its predecessor firm, Hirst & Chanler LLP (“H&C”), conferred with senior colleagues to determine
reasonable billing rates for attorneys, paraprofessionals, investigators, clerks and other billable
personnel on an annual basis. As a part of this process, the billing rates for H&C and TCG have
been compared with rates listed in third-party surveys such as the periodic nationwide law firm
billing rate survey of the National Law Journal. Hourly rates for TCG were most recently audited
in January 2011. Since its inception in 2009, TCG’s billing rates have been based on average rates
charged by similarly-situated law firms. Most influential are the rates of those firms that litigate
Proposition 65 cases, whose rates have been used as a benchmark of reasonableness in this
specialized area of practice. Additionally, rates approved by trial courts in Proposition 65
settlements have been considered, including the rates of H&C--which were approved as a
component of settlement in every case submitted since its inception in 2005--and the rates of TCG,
which have been approved in superior courts throughout California, including this Court and the
Alameda, Marin, Sacramento, Contra Costa, and Santa Clara County Superior Courts. TCG
continues to use the same practices employed by H&C to establish and update its rates.
32. The established rates of H&C and TCG are equal to or lower than comparable
national and regional rates for highly specialized practice areas. TCG (and H&C previously)
performed comparisons of their billing rates against national and state billing rates reported by
similarly-situated law firms in the National Law Journal’s Law Firm Billing Survey (““NLJ
Survey”) in 2006, 2009, 2010, and 2011--the most recent years that the NLJ Survey was published.
H&C’s and TCG’s average billing rates have historically been lower than the national and
California averages of billing rates for similarly situated firms. H&C and TCG made such a
determination by examining the difference between each rate charged for each of our attorneys and
the average published rate for that attorney’s class.
33. | H&C’s and TCG’s highest hourly rates have historically been lower than the
highest hourly rates for almost all similarly-situated law firms listed in past NLJ Surveys, and
15
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT0 Oo ON DH BF WN
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H&C’s and TCG’s highest hourly rate have been at least $100 an hour less than the average of the
highest rates charged by those similarly-situated law firms. Law firms listed in the 2009 and 2010
NLJ Surveys that have represented opposing parties against TCG’s clients in Proposition 65 cases
and that have reported their highest billing rates have rates that are consistent with H&C’s and
TCG’s highest hourly rates, as follows: Alston & Bird ($865), Foley & Lardner ($1,035),
Greenberg Traurig ($875), Hogan & Hartson ($990), Loeb & Loeb ($975), Manatt Phelps &
Phillips ($850), McKenna Long & Aldridge ($775), Nixon Peabody ($905), and Venable ($950).
34. The work of H&C’s and TCG’s investigators is billed at rates between $115 and
$420 per hour for the calendar year 2012, between $115 and $400 per hour for the calendar year
2011, and between $115 and $380 per hour for the calendar year 2010. The work of the
paraprofessionals and law clerks is billed at rates that are between $120 and $280 per hour for the
calendar year 2012, between $115 and $270 per hour for the calendar year 2011, and between
$115 and $260 per hour for the calendar year 2010. It is TCG’s policy to make every effort to
utilize the attorney and staff at the lowest billing rate available to capably handle any given task.
35. Lalso am informed and believe that in some Proposition 65 cases, judges and
arbitrators alike have awarded a multiplier of attorney fees to compensate for, among other things,
the contingent nature of the legal work, the difficulty of the case, the delayed reimbursement of
fees, and the assumption of initial cost outlays. These multipliers have ranged from 1.25 to 1.75,
which have enhanced the fee award by 25% to 75%. While Held feels that such a multiplier would
be appropriate in this case, Held and his counsel are waiving any arguments that they may have
regarding entitlement to such a fee enhancement in the interest of finalizing this settlement.
36. Plaintiff, and other private enforcers of Proposition 65 represented by TCG, have
enforced California’s right-to-know statute since 1991. TCG has represented clients in matters
involving hundreds of different consumer product categories containing heavy metals such as lead
and cadmium. TCG has also represented Proposition 65 private enforcers in matters involving
other toxins, including solvents like toluene and benzene, and plasticizers like phthalate chemicals.
Through this work, TCG clients seek to enforce California consumers’ statutory rights, to promote
16
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTpublic awareness of exposures to harmful chemicals, and to thereby reduce the unnecessary use of
hazardous substances in consumer products.
37. Inthe last 20 years, TCG clients have successfully resolved hundreds of Proposition
65 cases and have been involved in many of the select few cases proceeding through a full trial on
the merits. TCG clients have compelled scores of manufacturers to rid their products of
unnecessary and previously hidden toxins, and have generated significant civil penalties,
earmarked for the State of California. TCG has created a summary compilation of the civil penalty
assessments and attorney fee settlements for all reported Proposition 65 settlements during the
years 2005 through 2011, inclusive. A true and correct copy of this settlement summary is
attached hereto and incorporated herein by this reference, as Exhibit C. This information is taken
from the public database of all settlements reported to the Attorney General’s office as is now
required under the statute. This settlement data can be found at, http://oag.ca.gow/prop65.
38. During the period of time from 2005 through 2011, TCG clients collected
$7,010,940 in civil fines, while all other private enforcers combined collected only $2,662,519.
While these figures are noteworthy on their own, their significance is perhaps increased when the
proportional penalty collection is compared to the total attorney fees negotiated for TCG clients.
TCG clients generated approximately 72% of the civil fines over this seven-year period, while
collecting only 38% of the fees. Said another way, clients represented by TCG over the past seven
years achieved the greatest civil fines to fees ratio when compared to all other private enforcers
combined. TCG collects more fines for the State, while collecting less attorneys’ fees, when
compared to the rest of the industry. It is important to note that this data does not reflect civil
penalty credits awarded by TCG clients to those settling defendants that elected to reformulate
their products, which would add several million dollars of value, if such adjusted civil fines were
tracked.
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17
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTI declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on this 3rd day of July 2012, at Berkeley, California.
on Mahl 5 Malls,
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18
DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTZech AWw BR WN
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Josh Voorhees, State Bar No. 241436
Rachel S. Doughty, State Bar No. 255904
‘THE CHANLER GROUP
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
Attomeys for Plaintiff
ANTHONY E. HELD, PH.D., P.E.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
ANTHONY E. HELD, PH.D., P.E., Case No. CGC-11-516586
Plaintiff, [PROPOSED] CONSENT JUDGMENT
v.
(Cal. Health & Saf. Code, § 25249.6 et seq.)
TWO’S COMPANY, INC.; and DOES 1-150,
inclusive,
Defendants.
[PROPOSED] CONSENT JUDGMENTpC e e
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1, INTRODUCTION
1.1 Anthony E. Held, Ph.D., P.E. and Two’s Company, Inc.
This Consent Judgment is entered into by and between Anthony E. Held, PH.D., P.E.
(“Dr. Held” or “Plaintiff’) and Two’s Company, Inc. (“Two’s” or “Defendant”), with Held and
Two’s collectively referred to as the “Parties.”
1.2 Plaintiff
Dr. Held is an individual residing in California who seeks to promote awareness of
exposures to toxic chemicals and improve human health by reducing or eliminating hazardous
substances contained in consumer products.
1.3 Defendant
Dr. Held alleges that Two’s employs ten or more persons and is a person in the course of
doing business for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986,
Health & Safety Code section 25249.6 et seq. (“Proposition 65”).
1.4 General Allegations
Dr. Held alleges that Two’s has manufactured, distributed, and/or offered for sale in
California cosmetic cases/bags containing di(2-ethylhexyl)phthalate (“DEHP”), luggage tags
containing DEHP, and luggage tags containing lead without the requisite Proposition 65
warnings. DEHP and lead are listed pursuant to Proposition 65 as chemicals known to the State
of California to cause birth defects and other reproductive harm.
1.5 Product Description
The products that are covered by this Consent Judgment are the Mindy Weiss Bridesmaid
Cosmetic Bag #8850 (#0 19218 08850 2) (“Mindy Weiss Bag”) distributed or sold by Two’s,
directly or through others, to consumers in California, and the Hide & Seek Luggage Tag,
#41169-20 (#0 19218 72065 5) (“Hide & Seek Tag”), distributed or sold by Two’s, directly or
through others, to consumers in California (“Products”).
1.6 Notices of Violation
On or about April 8, 2011, Dr. Held served Two’s and various public enforcement
agencies with a document entitled 60-Day Notice of Violation that provided Two’s and such
[PROPOSED] CONSENT JUDGMENToC Oo we NO
officials with notice that alleged that Two’s was in violation of Proposition 65 for failing to warn
its direct customers and end users that its cosmetic cases/bags exposed users in California to
DEHP. On or about September 19, 2011, Dr. Held served Two’s and various public enforcement
agencies with a Supplemental 60-Day Notice of Violation that provided Two's and such officials
with notice that alleged that Two’s was in violation of Proposition 65 for failing to warn its direct
customers and end users that its cosmetic cases/bags and luggage tags exposed users in California
to DEHP and that its luggage tags exposed users in California to lead. The April 8, 2011 60-Day
Notice of Violation and the September 19, 2011 Supplemental 60-Day Notice of violation will
hereinafter be referred to as the “Notices.”
1.7. Complaint
On December |4, 2011, Dr. Held filed a complaint in the Superior Court in and for the
County of San Francisco against Two’s and Does | through 150 (the “Complaint” or “Action”),
alleging violations of Proposition 65, based on the alleged exposures to DEHP contained in
certain cosmetic cases/bags and luggage tags sold by Two’s, and to lead in certain luggage tags
sold by Two’s.
1.8 No Admission
Two’s denies the material factual and legal allegations contained in the Notices and
Complaint and maintains that all products that it has sold in California, including the Products,
have been, and are, in compliance with all laws. Nothing in this Consent Judgment shall be
construed as an admission by Two’s of any fact, finding, conclusion of law, issue of law, or
violation of law, nor shall compliance with this Consent Judgment constitute or be construed as
an admission by Two’s of any fact, finding, conclusion of law, issue of law, or violation of law,
such being specifically denied by Two’s. However, this Section shall not diminish or otherwise
affect Two's obligations, responsibilities and duties under this Consent Judgment.
1.9 Consent to Jurisdiction
For purposes of this Consent Judgment only, the Parties stipulate that this Court has
jurisdiction over Two’s as to the allegations contained in the Complaint, that venue is prope
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-05-2012 1:41 pm Case Number: CGC-11-516586 Filing Date: Jul-05-2012 1:38 Filed by: Juke Box: 001 Image: 03676638 DECLARATION ANTHONY E HELD VS. TWO'S COMPANY, INC. et al 001003676638 Instructions: Please place this sheet on top of the document to be scanned.0 eo IND WH BRB YW N a a a Ce ND WH FF WN & SC Josh Voorhees, State Bar No. 241436 Rachel S. Doughty, State Bar No. 255904 THE CHANLER GROUP 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 Attorneys for Plaintiff ANTHONY E. HELD, PH.D., P.E. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION ANTHONY E. HELD, PH.D., P.E., Plaintiff, TWO’S COMPANY, INC.; et al., Defendants. N N YY NY Y N NN VY od A AW BF Yow NH = S Case No. CGC-11-516586 DECLARATION OF RACHEL S. DOUGHTY IN SUPPORT OF MOTION TO APPROVE PROPOSITION 65 SETTLEMENT AND CONSENT JUDGMENT Date: August 24, 2012 Time: 9:30 a.m. Dept. 302 Judge: Hon. Harold E. Kahn DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTI, Rachel S. Doughty, declare as follows: 1. I am an attorney licensed to practice in California. I represent plaintiff, Anthony E. Held, Ph.D., P.E. (“Held” or “Plaintiff), and am one of the attorneys of record in this Health and Safety Code section 25249.6 et seq. (“Proposition 65”) action. I have personal knowledge of the facts set forth in this declaration or have been informed by those individuals who have personal knowledge of the facts, and could and would competently testify hereto if called upon to do so. 2. Held brought this action as pursuant to Health and Safety Code section 25249.7, subdivision (d) in order that he might promote awareness of exposures to toxic chemicals and improve human health by reducing or eliminating hazardous substances contained in consumer products. 3, Defendant, Two’s Company, Inc. (“Defendant” or “Two’s Company”), and Held, with Held and Two’s Company collectively referred to as the “parties,” have reached a resolution of this action through the mutual execution of a settlement agreement in the form of a “[Proposed] Consent Judgment” (“Consent Judgment”). A true and correct copy of the fully executed Consent Judgment is attached hereto as Exhibit A. Investigation, Litigation and Settlement Background 4. Prior to the issuance of the 60-Day Notice of Violation (“Notice”) and the Supplemental 60-Day Notice of Violation (“Supplemental Notice”), or the commencement of this action, Plaintiff's investigation concluded that Defendant manufactured, imported, distributed, and/or sold certain consumer products without the requisite health-hazard warning for the Proposition 65-listed chemicals di(2-ethylhexyl)phthalate (“DEHP”) and lead. Plaintiff alleges that handling such products causes consumers to become exposed to DEHP and lead. DEHP and lead are listed pursuant to Proposition 65 as chemicals that are known to the State of California to cause birth defects or other reproductive harm. 5. On April 8, 2011, Held served Two’s Company and various public enforcement agencies with the Notice, alleging that Two’s Company was in violation of Health and Safety Code section 25249.6 for failing to warn its customers and consumers in California that cosmetic cases/bags such as the Mindy Weiss Bridesmaid Cosmetic Bag #8850 (#0 19218 08850 2) exposed 1 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTusers to DEHP. On September 19, 2011, Held served Two’s Company and various public enforcement agencies with the Supplemental Notice, alleging that Two’s Company was in violation of Health and Safety Code section 25249.6 for failing to warn its customers and consumers in California that cosmetic cases/bags such as the Mindy Weiss Bridesmaid Cosmetic Bag #8850 (#0 19218 08850 2) exposed users to DEHP and luggage tags such as the Hide & Seek Luggage Tag, #41169-20 (#0 19218 72065 5) exposed users to lead and/or DEHP. The Notice and Supplemental Notice will hereinafter be referred to as the “Notices.” On December 14, 2011, Held filed the instant action (“Complaint”), against Two’s Company for the violations alleged in the Notices. 6. On or about June 12, 2012, the parties finalized and entered into the Consent Judgment, a settlement that resolves Held’s claims against Two’s Company for the alleged violations of Proposition 65 with respect to the specific products identified by name and Universal Product Code in the Notices and Complaint. 7. The Consent Judgment resolves all of Held’s claims against Two’s Company for the violations of Proposition 65 alleged in the Notices and Complaint related to DEHP in the Mindy Weiss Bridesmaid Cosmetic Bag #8850 (#0 19218 08850 2) and lead and DEHP in the Hide & Seek Luggage Tag, #41169-20 (#0 19218 72065 5) (together, the “Products”), which were manufactured, imported, distributed, sold and/or offered for sale by Two’s Company, directly or through others, to consumers in California. 8. The Settlement is a product of extensive arm’s-length negotiations between the parties, each of whom was represented by experienced counsel. The settlement discussions included numerous e-mails and telephone calls between counsel during which the parties exchanged product sales data, laboratory results, and other information relevant to settlement, both orally and in writing. In negotiating the Settlement, Held and his counsel first sought agreement with Two’s Company regarding injunctive terms. The parties’ counsel next addressed the basis for calculating the monetary amounts to be paid in civil penalties. Finally, through counsel, the parties negotiated the reimbursement of a portion of Held’s attorneys’ fees and costs. 2 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT0 ON DH FB WN NY N NY N YN N NN NO Bee wee ee ee ee ot DAA FF BHwNH = SO OH I DAH BRB WH | SS Selected Contents of Consent Judgment Constituting Significant Public Benefit 9. The Consent Judgment requires as of June 15, 2012, that Defendant shall not ship, sell, distribute, or supply to an unaffiliated third party any Products that will be sold or offered for sale to California consumers unless each accessible component (i.e., any component that can be touched, handled, or mouthed by a person during reasonably foreseeable use) of any such Product contains DEHP in concentrations less than 1,000 parts per million when analyzed pursuant to U.S. Environmental Protection Agency sample preparation and test methodologies 3580A and 8270C, and contains no more than 50 parts per million of lead when analyzed pursuant to EPA testing methodologies 3050B and/or 6010B, and 1.0 microgram when analyzed pursuant to the NIOSH 9100 testing protocol. This reformulation standard is consistent with state and federal regulations and has been approved by trial courts throughout the State of California as reasonable. 10. Proposition 65 regulations state that the determination of whether a level of exposure to a chemical known to the state to cause birth defects or reproductive harm poses “no observable effect” shall be based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of the chemical. It does not preclude a person from using evidence, standards, risk assessment methodologies, principles, assumptions, or levels not described in the article to establish that the level of exposure to a listed chemical has “no observable effect.” (Cal. Code Regs., tit. 27, § 25701 et seq.) 11. Under the terms of the Consent Judgment, Two’s Company will pay $3,500 in civil penalties (after application of a credit of $6,500 agreed to by Held in response to Two’s Company’s commitment to reformulate its Products). The penalty amount was agreed to after arm’s-length negotiations and is based on the facts and circumstances of this case. Almost all of the facts that would and do support the civil penalty assessment factors under the statute were strenuously contested in this case. This determination was made upon consideration of the factors set forth in Health and Safety Code section 25249.7, subdivision (b)(2) and information, such as sales data, provided by Two’s Company during settlement negotiations. Plaintiff considers the sale of the Products without the requisite warnings a serious violation of the statute, and disputes that Two’s Company has any viable defenses. Two’s Company, however, has demonstrated its 3 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT0 Oe YN DW FF Bw N RMR YY NK NN NN Be we we ew ee ew ee oN DA AW BF BN = SGD we IAD DH BF WN SK OS commitment to complying with Proposition 65 and has agreed to compensate the public for its alleged past violations. Two's Company’s cooperation in the settlement process, its agreement to resolve this case without the expense of a trial, and similar settlements with Two’s Company’s competitors were also material factors in determining the amount of civil penalties. Reasonable Reimbursement of Attorneys’ Fees and Costs 12. The Consent Judgment requires that Two’s Company reimburse a portion of the attorneys’ fees, investigation fees and costs, expert and consultant fees, and litigation costs Plaintiff incurred in this case, as well as the cost incurred in connection with judicial approval of the settlement, and to fully conclude this matter. Rather than have Plaintiff file a separate fee application with the Court, the parties agreed to negotiate the fee component of the settlement prior to finalizing and submitting the Consent Judgment to the Court. 13. As a result of these negotiations, and in order to facilitate the settlement of this case, counsel for Plaintiff agreed to accept $19,000 as a resolution of attorneys’ fees, investigation fees, and costs incurred throughout this enforcement action, including this motion for judicial approval. The parties reached this agreement in accordance with general contract principles and the private attorney general doctrine codified at Code of Civil Procedure section 1021.5. In the course of investigating, litigating, and negotiating the settlement of this case, Plaintiff incurred approximately $116,979 in attorneys’ fees and costs, after the exercise of billing judgment. I believe that this amount is properly tabulated and supported by the summary records I have reviewed. The amount of these fees incurred greatly exceeds the amount to be paid by Two’s Company, resulting in a significant forfeiture of Plaintiffs fees and costs. 14. Below I provide a task-based summary of the efforts undertaken to successfully conclude this action, for which my firm will be reimbursed $19,000. The time for attorneys, paraprofessionals and clerks is organized into five stages of a Proposition 65 action: (1) the investigation stage, including all steps necessary to conduct and conclude a successful investigation; (2) the notice stage, including review of all investigation and testing material for preparation of the Notices and Certificates of Merit; (3) the litigation stage, including all activities from the preparation of the Complaint through any discovery and motion practice; (4) the 4 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT0 ON DWH FF WN YN YN NY NY NK KN NY BB Be Be Se Be Be Be Be oN A A KF BN =— SF © we NIN DH BF WN KF SO settlement stage, including negotiation and preparation of the terms of the Consent Judgment, and reporting the settlement to the Attorney General’s Office; and (5) the approval stage, including drafting and revision of the motion to approve and the accompanying memorandum of points and authorities, declaration, and exhibits, responding to any objections which may be posed, and appearing at the approval hearing. Costs associated with the case form a sixth category, and include filing fees, postage, and copy expense. 15. Attached as Exhibit B to this declaration is a “Statement of Fees and Costs” The Chanler Group (“TCG”) employees and contractors billed during each stage of this case. The breakdown also includes the total costs incurred. The following paragraphs represent a general composite of tasks associated with investigation, notice, litigation, settlement, and approval as follows: 15.1 During the pre-notice investigation stage, investigation staff perform eight categories of activities. The time attributable to these eight subcategories of the investigation stage is found in Category I of Exhibit B. The categories include, but are not limited to, the noted tasks: 15.1.1 Violator Identification and In-Office Investigation Identifying and investigating one or more violators; identifying and investigating any upstream or downstream manufacturers, distributors, and retailers; researching and verifying violator attributes, including business locations, number of employees, executive staff composition, net worth and annual sales; and reviewing product lines, product literature and advertising, and any associated product warnings. 15.1.2 Field Investigation Reviewing online retail locations and traveling to and from multiple brick-and-mortar retail locations throughout California; examining store entrances, exteriors and interiors, including all departments, points-of-sale, and customer service areas for any visible Proposition 65 signage, and recording pertinent information; purchasing, taking custody of, and securing the products at issue and with the corresponding receipts; completing a field investigation report; and transferring custody of the products to an office investigator. DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT15.1.3 Intake Process Taking office custody and inventory of each product purchased, together with all field investigation forms and receipts; duplicating receipts for the product file; reviewing and quality control of field investigation forms; preparing a computerized investigation report; reviewing product labeling and packaging for breakage and cracks; recording product attributes, including component parts, product design, color, flexibility, texture and scent; assigning a control or evidence number and storage location; photographing the products, packaging and labeling; updating the investigation file; storing evidence; documenting chain of custody throughout the internal investigation; reviewing all processes and procedures followed to assure conformance with established standards; and preparing case summary reports. 15.1.4 Testing Preparing all required pre-testing forms and documentation; conducting in-office X-ray Fluorescence (“XRF”) testing of products for chemical content and generating reports; ordering tests and confirming testing protocols with laboratories; reviewing all test results and quality control reports upon receipt; and recording results. 15.1.5 Expert Consultation Preparing for and meeting with retained experts to discuss and review product information, laboratory analyses, and the source, routes, and magnitude of potential exposures; and reviewing support for the required Certificates of Merit prepared by the expert. 15.1.6 Case File Preparation Compiling investigative work product and assembling a case file. 15.1.7 Notice Preparation Assisting attorneys with preparation of the Notices, including reviewing the chemicals at issue, routes of exposure, the relevant time period, the product and product type descriptions, the manufacturers, distributors and retailers involved, the location of the violations, the service addresses, and the Certificates of Merit and supporting scientific basis. DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT15.1.8 Project Management Developing an in-depth field investigation to inspect, assess and secure evidence; overseeing execution of investigation plan; advising attorneys regarding XRF testing and laboratory testing; communicating with the client as needed. 15.2 For the notice stage, including all activities leading to the issuance of a notice, legal staff perform the following tasks including, but not limited to: (1) consulting initially with the client regarding a specific Proposition 65 violation and discussing issuance of the notice; (2) consulting internally with investigative staff regarding the specific Proposition 65 violation; (3) reviewing investigation reports regarding the products and chemicals at issue; (4) reviewing the location of purchases, whether any warnings signs or labels were observed on or near the products at issue, and the identities of any manufacturers, distributors, importers, or retailers involved in the violation; (5) consulting with an expert and reviewing the expert’s letter used to support the Certificate of Merit for the notice; (6) reviewing financial and legal information regarding all potential defendants, including the number of employees, location of business, and type of business; (7) consulting further with the client regarding the results of the investigation, testing results, chemicals involved, category of products, and specific information about the entities who will or will not receive the notice; (8) preparing an investigative case file for issuance of the notice; (9) scheduling and calendaring of the issuance of the notice; (10) reviewing the case file and investigative file in preparation for drafting and editing the notice; (11) executing the Certificates of Merit for the notice; and (12) finalizing and issuing the notice, including perfecting service of the notice on all applicable parties. The time attributable to the notice stage of this enforcement action is found in Category II of Exhibit B. 15.3 For the litigation stage, including all activities from the expiration of a notice to resolution of the matter, Plaintiffs counsel, paralegals, and clerks perform the following tasks including, but not limited to: (1) reviewing the notice and preparing the case file; (2) adding the matter to the firm’s calendar and calendaring the notice’s expiration date; (3) reviewing the letter of representation or the initial communication with the noticed entity or its defense counsel; (4) updating the firm’s contact list regarding the noticed entity and any defense counsel; (5) DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTCoe YN DH AH F YW YN NHN N NY NY N N N Nw oN DU F&F BN F&F SC we IY DH BF WN SK researching the applicable statute of limitations; (6) researching the agent for service of process of a noticed entity; (7) selecting the proper venue for the action; (8) researching, drafting, editing, reviewing, and executing the Complaint; (9) preparing the summons and civil case cover sheet; (10) updating the firm’s database with the Complaint filing date; (11) coordinating and conducting the service of the Complaint and summons; (12) reviewing the completed proof of service from process servers or returned certified mail proofs of receipt; (13) completing and preparing summons and proof of service of summons for filing with the court; (14) calendaring the responsive pleading date; (15) calendaring the first day to issue discovery; (16) researching, drafting, and propounding written discovery; (17) preparing and filing case management statements; (18) attending case management conferences; (19) legal research; and (20) motion practice as necessary. The time attributable to the litigation stage of this enforcement action is found in Category III of Exhibit B. Because of the extensive litigation in this matter, Category III is divided into the following subcategories: Complaint; Case Management; Discovery (Written); Discovery (Deposition); Motion to Compel; and Removal to Fedearl Court and Remand. 15.4 The settlement stage includes, but is not limited to, the following activities: (1) reviewing prior judgments to ensure consistency in enforcement; (2) preparing and drafting the Consent Judgment; (3) negotiating, editing, and revising provisions of the Consent Judgment with opposing counsel; (4) discussing settlement offers and demands with the client; (5) negotiating injunctive terms; (6) reviewing applicable factors for civil penalties and negotiating civil penalties; (7) negotiating attorneys’ fees and costs; (8) calendaring compliance schedules; and (9) reporting the settlement to the Attorney General. The time attributable the settlement stage of this enforcement action is found in Category IV of Exhibit B. 15.5 The Motion to Approve stage consists of the activities required to bring the Consent Judgment before the Court for approval, including, but not limited to: (1) drafting the notice of motion and motion to approve the Consent Judgment; (2) drafting the memorandum of points and authorities in support of the motion to approve; (3) drafting the declaration in support of the motion to approve; (4) preparing an affidavit of compliance with pertinent regulations; (5) service of the motion on defense counsel and the Attorney General; (6) calendaring all briefing 8 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTCm YI DH FB Ww NY NY N NY N NN NN NY ee Be Be Be Be Be Be eB oN A A FB NH =F SF © we AY DH BF WN S| deadlines and hearings; (7) reviewing and responding to any concerns and/or objections from the Attorney General; (8) appearing at the hearing on the motion to approve; (9) preparing any requested supplemental briefing; (10) preparing and serving the notice of entry of judgment; (11) review of any compliance report and attendance at any needed compliance hearing; and (12) otherwise complying with the terms of the Consent Judgment. The time attributable to the judicial approval of stage of this enforcement action is found in Category V of Exhibit B. 16. The negotiated reimbursement of fees and costs includes partial recovery of the $22,639.36 in investigation fees incurred by Held, as recorded in Category I of Exhibit B. As discussed above, in Proposition 65 actions brought by plaintiffs represented by TCG, including this case, the investigation stage includes eight subcategories of tasks: (1) violator identification and in-office investigation; (2) field investigation; (3) intake process; (4) testing; (5) expert consultation; (6) case file preparation; (7) notice preparation; and (8) project management. 17. Beginning in or around late-2008, TCG began employing a court-approved averaging of investigation subcategories (1), (5), (6), and (8) in motions to approve Proposition 65 settlements. Fees from these subcategories are based on averages calculated from the same subcategories across nine sample cases, and represent a cross-section of cases brought by one of TCG?’s clients involving Proposition 65 violations, including cases brought against a diverse mix of manufacturers, distributors, and retailers of varying sizes. These four investigative subcategories are derived from an average because the time necessary to complete the tasks in each subcategory is consistent from one case to another and from one staff member to another, making the average of these subcategories a reasonable standard of the time actually incurred. For example, in subcategory 1, the time it takes to identify the alleged violator, research the relevant Secretary of State records, and determine the entity’s legal status is virtually identical from one company to another. In subcategory 5, the initial time spent consulting with an expert is uniform from one case to the next. In subcategory 6, the time spent preparing and maintaining a case file is similar from one case to another because my firm follows uniform procedures for maintaining its case files. Similarly, in subcategory 8, the time needed to manage the project is also consistent 9 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT0 Oe ND WH BF YW NY YN NR YN NN NK KN NY HY He ee we Be Be eB ee oN HD A BF YB YH F SOD we IA DHA BF wBWwNH S| SO across cases based upon set procedures for case oversight. Accordingly, the time and fees incurred for these four subcategories do not vary substantially and are capable of being averaged. 18. The fees in the following four investigation subcategories varied broadly across the nine sample cases depending on the size of each investigation: (2) field investigation; (3) intake process; (4) testing; and (7) notice preparation. To control for this variance, a task-based value was calculated for each activity performed in these subcategories. The task-based value is reported each time that a task is performed in a particular subcategory for a particular product. For example, time is reported: (i) for each product tested in the testing subcategory; (ii) for each product purchased in the field investigation; (iii) for each product processed in the intake subcategory; and (iv) for each notice issued in the notice subcategory. This process ensures accurate accounting of the fees associated with both larger, more complex, and smaller, less complex investigations. 19. Based on TCG’s review of motions to approve Proposition 65 settlements in cases brought by its clients, motions utilizing this method to calculate the pre-notice investigative fees have been granted in dozens of cases by each of the Superior Courts in the Bay Area, including the trial courts for Alameda, Contra Costa, Marin, Sacramento, San Francisco, San Mateo, and Santa Clara counties. Use of this model to calculate the investigative fees ensures accuracy in each case without requiring investigative and accounting personnel to invest significant time and resources to determine a per-case fee calculation. 20. For all categories on Exhibit B other than the investigation stage, attorneys, paralegals, auditors, investigators, expert and other professionals and paraprofessionals are instructed to keep near-contemporaneous time records of their work. I am informed and believe that those contributing time to this case keep their records in this manner, and that the records were computerized, summarized, and reviewed. The Statement of Fees and Costs, attached as Exhibit B, identifies each individual who recorded time; that individual’s billing rate(s); the amount of time billed at each rate; and the total amount of corresponding fees. Below, I provide a summary of the professional background, qualifications, and experience of each individual who billed time to this case. 10 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT21. Josh Voorhees received his law degree in 2003 from Santa Clara University, where he was a member of the Law Review. He is admitted to practice in Connecticut, New York, and California. He has practiced civil litigation for over eight years and started working with Mr. Chanler in 2005. He began representing citizen enforcers in Proposition 65 matters in 2006 upon gaining admission to the California Bar. He has experience at every stage of litigation, from client consultation, to investigation, written discovery, depositions, settlement negotiations, mediation, arbitration, and trial. He has written and argued dozens of motions, briefs, and oppositions to motions in both federal and state court. He has assisted lead trial counsel in pre-trial and trial activities. His experience in Proposition 65 litigation includes conducting extensive written discovery, taking fact and expert witness depositions, writing and arguing motions, negotiating settlements, obtaining court approval of settlements, and preparation of cases for trial. His hourly rates are $525 for 2011 and $545 for 2012. These rates were established taking into consideration his years of experience, the specialized nature of Proposition 65 litigation, and his role as the managing attorney for TCG. 22. Brian Johnson received his law degree with a certificate of specialization in Environmental Law in 2004 from Tulane University Law School. He is admitted to practice in California and the federal District Court for the Northern District of California. Mr. Johnson has practiced civil litigation for over seven years, which includes trial and appellate experience in environmental, residential and commercial real estate, and insurance law. He started working with TCG in 2010, representing private citizens in enforcement actions brought under Proposition 65. Mr. Johnson has experience in all stages of litigation, from client consultation, to investigation, written discovery, depositions, settlement negotiations, mediation, arbitration, and trial. He has considerable motion practice experience including drafting motions, oppositions, and supporting memoranda and obtaining many successful rulings following oral argument. For more than two years Mr. Johnson’s practice has been devoted entirely to Proposition 65 litigation, including independent case management of dozens of cases from the service of the initial 60-day notice of violation up through the time of trial. Mr. Johnson’s billing rate was $445 for 2011 and is $460 for 2012. These rates were established taking into consideration his years of environmental and ll DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTCo Oem tN DH FF Ww YY RN NY NY NY N NN KY He He wee we ewe em eB Be oN DA A BF BN =F SBD we I DH BF WH KF DO litigation experience, the specialized nature of Proposition 65 litigation, and his responsibilities and experience as an associate of the firm. 23. — Lalso incurred and billed time in this matter. I received my law degree from the University of Virginia in 2004. I also have a B.S. in Biochemistry, Cellular, and Molecular Biology from the University of Tennessee and an M.S. in Natural Resources with a minor concentration in Biogeochemistry from Cornell University. Prior to attending law school I was a fellow at the United States Environmental Protection Agency and performed cancer research at Vanderbilt University. I am admitted to practice in North Carolina as well as California and the federal district courts of the Eastern District of California and the Western District of North Carolina. I commenced working with TCG in 2011, representing private citizens in enforcement actions brought under Proposition 65. My work with TCG comprises approximately half of my practice. My practice also includes representing citizens in federal Clean Water Act, Endangered Species Act, and Administrative Procedure Act cases, which have similar elements to Propositon 65 cases. I have experience in all stages of litigation, including client consultation, investigation, discovery, settlement negotiations, and trial. For over two years I worked at Paul, Hastings, Janofsky, and Walker, LLP (“Paul Hastings”), where my practice was entirely environmental law, including Proposition 65 compliance counseling for businesses. When I left Paul Hastings in early 2010 my billing rate was $530 and would now be over $600. My billing rate for 2011 at TCG was $525 per hour and it is presently $545. This rate was established taking into consideration my years of environmental and litigation experience, my science education, the specialized nature of Proposition 65 litigation, and my responsibilities at TCG. 24. Rosalind Conrad is the managing paralegal at TCG. She joined the firm in March, 2006. Before joining TCG, from 2002 to late 2005, she worked as a bankruptcy paralegal and as the in-office notary public at the Law Offices of Walter D. Wagoner in New Haven, Connecticut. She has accumulated over nine years experience as a paralegal, and during her time with TCG has supported multiple attorneys in hundreds of Proposition 65 matters, including multiple cases that have gone to trial. Ms. Conrad oversees the legal support staff of TCG’s Berkeley office as well as 12 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTfe e 0 Oe ND HW FF WN Se =e Se ew we N - SO RN N N N N N NN Ye Bee Se Be oN A A BF YW NH Ff SO Oe IY DWH the legal support staff in other offices. Ms. Conrad’s billing rates are $255 for 2011 and $265 for 2012. 25. Dennis Johnson is a paralegal who joined the firm in 2000 while attending the University of California at Berkeley, from which he earned a B.A. in 2003. Starting in 2005 Mr. Johnson attended the University of Connecticut School of Law while continuing to work for TCG in its New Canaan office While attending law school, Mr. Johnson interned as a law clerk at both United Technologies Corporation and the United States Postal Service’s employment law division, and clerked for Moore Leonhardt & Associates in Hartford, Connecticut, where he gained valuable pre-trial preparation experience. Mr. Johnson received his J.D. from the University of Connecticut School of Law in 2008, and shortly thereafter continued his relationship with TCG when he became a paralegal in its Berkeley office in 2009, then its Silicon Valley office in 2011. Mr. Johnson’s billing rates are $270 for 2011 and $280 for 2012. 26. Cynthia Price is a senior paralegal who performs paraprofessional tasks at all stages of litigation. Ms. Price joined TCG in 2011. She earned a B.A. from Mills College in May, 1992. She earned her Paralegal Certificate from San Francisco State University in June 2008. Before joining TCG, Ms. Price was the office manager and a notary public at the Law Offices of Herzig and Berlese in San Francisco. She has six years of experience in an administrative capacity and five in legal support. Ms. Price’s billing rates are $255 for 2011 and $265 for 2012. 27. Eleanor Chen-Ranstrom is TCG’s billing administrator. In this role, Ms. Chen- Ranstrom oversees and monitors TCG’s contemporaneous time records, prepares fee and cost summaries for attorneys, and works closely with attorneys in the preparation of materials submitted in support of motions to approve negotiated settlements, contested fee applications, mediations, and arbitrations. Ms. Chen-Ranstrom earned a B.A. in Anthropology and Sociology in May 2007. She started at TCG in September 2007. Ms. Chen-Ranstrom’s billing rate is $205 for 2012. 28. Allison Carr is a legal assistant who works closely with attorneys and paralegals at all stages of litigation. Ms. Carr assists in the preparation of draft legal documents for attorney review and assists attorneys in the revision of these documents. Ms. Carr is one of the legal 13 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTassistants that oversees TCG’s legal calendar and tracks statutory and internal deadlines with attorneys. Ms. Carr assists attorneys with the assembly, filing, and service of legal documents at all stages of litigation. Ms. Carr began working for TCG in January, 2010. Before joining TCG, Ms. Carr worked in various administrative support positions for a combined four years previous office experience. Ms. Carr’s billing rates are $120 for 2011 and $125 for 2012. 29. Bernice Dea is the director of investigation at The Chanler Group. She directs, manages, and oversees all investigation staff and investigation activities/tasks related to alleged Proposition 65 violations on behalf of the firm’s clients, including plaintiff Anthony Held in this Proposition 65 action. During the past fifteen years, she has been the managing investigator on thousands of Proposition 65 matters. She directs a team of managers, senior and junior field investigators, and several in-office personnel--all of whom specialize in Proposition 65 investigations. Ms. Dea has conducted investigations for the following law firms: Chanler Law Group, Paras Law Group, Martin Law Group, Sheffer & Chanler LLP, Hirst & Chanler LLP, and, most recently, The Chanler Group. She is licensed by the State of California, Department of Consumer Affairs, Bureau of Security and Investigative Services as a private investigator. Ms. Dea is also responsible for all staff training, design and implementation of all policies and procedures, and assistance with litigation support including discovery, depositions, trial preparation, and trial testimony. I know of no other investigator, public or private, with as much Proposition 65 experience. Her billing rate, as the director of investigation, was $400 in 2011 and is $420 in 2012. 30. | Suzanne Miller is the filing clerk at TCG. She works closely with all legal files to ensure proper organization throughout the entire litigation process. Ms. Miller assists attorneys with complaint service, drafting related service documents, and filing documents with the court. Ms. Miller joined TCG in December, 2010 with one year of experience as a legal filing clerk. She has over two years of office experience and four years of customer service experience. Ms. Miller began attending law school part-time in 2009 and is a 2013 J.D. candidate. Ms. Miller’s billing rate is $125 in 2012. 14 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENToO ND HW PB YW N YR YN YN NKR NN Fe Be Be ew eB ew Be Be on Dn UN F&F Ww NK FG 0D Oe NY DH F&F WY KF CS 31. | am informed and believe that the hourly rates charged in this case are reasonable. TCG investigates and prosecutes Proposition 65 actions on behalf of private enforcers primarily in the San Francisco Bay Area. The founding attorney of TCG and one of the founding attorneys of its predecessor firm, Hirst & Chanler LLP (“H&C”), conferred with senior colleagues to determine reasonable billing rates for attorneys, paraprofessionals, investigators, clerks and other billable personnel on an annual basis. As a part of this process, the billing rates for H&C and TCG have been compared with rates listed in third-party surveys such as the periodic nationwide law firm billing rate survey of the National Law Journal. Hourly rates for TCG were most recently audited in January 2011. Since its inception in 2009, TCG’s billing rates have been based on average rates charged by similarly-situated law firms. Most influential are the rates of those firms that litigate Proposition 65 cases, whose rates have been used as a benchmark of reasonableness in this specialized area of practice. Additionally, rates approved by trial courts in Proposition 65 settlements have been considered, including the rates of H&C--which were approved as a component of settlement in every case submitted since its inception in 2005--and the rates of TCG, which have been approved in superior courts throughout California, including this Court and the Alameda, Marin, Sacramento, Contra Costa, and Santa Clara County Superior Courts. TCG continues to use the same practices employed by H&C to establish and update its rates. 32. The established rates of H&C and TCG are equal to or lower than comparable national and regional rates for highly specialized practice areas. TCG (and H&C previously) performed comparisons of their billing rates against national and state billing rates reported by similarly-situated law firms in the National Law Journal’s Law Firm Billing Survey (““NLJ Survey”) in 2006, 2009, 2010, and 2011--the most recent years that the NLJ Survey was published. H&C’s and TCG’s average billing rates have historically been lower than the national and California averages of billing rates for similarly situated firms. H&C and TCG made such a determination by examining the difference between each rate charged for each of our attorneys and the average published rate for that attorney’s class. 33. | H&C’s and TCG’s highest hourly rates have historically been lower than the highest hourly rates for almost all similarly-situated law firms listed in past NLJ Surveys, and 15 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENT0 Oo ON DH BF WN Rw oN NY NY KY NN NY NY HB Bee Be Be ewe Be Be oN A A FB YH NH FF SF G6 Oe RA A A BW NY | SD H&C’s and TCG’s highest hourly rate have been at least $100 an hour less than the average of the highest rates charged by those similarly-situated law firms. Law firms listed in the 2009 and 2010 NLJ Surveys that have represented opposing parties against TCG’s clients in Proposition 65 cases and that have reported their highest billing rates have rates that are consistent with H&C’s and TCG’s highest hourly rates, as follows: Alston & Bird ($865), Foley & Lardner ($1,035), Greenberg Traurig ($875), Hogan & Hartson ($990), Loeb & Loeb ($975), Manatt Phelps & Phillips ($850), McKenna Long & Aldridge ($775), Nixon Peabody ($905), and Venable ($950). 34. The work of H&C’s and TCG’s investigators is billed at rates between $115 and $420 per hour for the calendar year 2012, between $115 and $400 per hour for the calendar year 2011, and between $115 and $380 per hour for the calendar year 2010. The work of the paraprofessionals and law clerks is billed at rates that are between $120 and $280 per hour for the calendar year 2012, between $115 and $270 per hour for the calendar year 2011, and between $115 and $260 per hour for the calendar year 2010. It is TCG’s policy to make every effort to utilize the attorney and staff at the lowest billing rate available to capably handle any given task. 35. Lalso am informed and believe that in some Proposition 65 cases, judges and arbitrators alike have awarded a multiplier of attorney fees to compensate for, among other things, the contingent nature of the legal work, the difficulty of the case, the delayed reimbursement of fees, and the assumption of initial cost outlays. These multipliers have ranged from 1.25 to 1.75, which have enhanced the fee award by 25% to 75%. While Held feels that such a multiplier would be appropriate in this case, Held and his counsel are waiving any arguments that they may have regarding entitlement to such a fee enhancement in the interest of finalizing this settlement. 36. Plaintiff, and other private enforcers of Proposition 65 represented by TCG, have enforced California’s right-to-know statute since 1991. TCG has represented clients in matters involving hundreds of different consumer product categories containing heavy metals such as lead and cadmium. TCG has also represented Proposition 65 private enforcers in matters involving other toxins, including solvents like toluene and benzene, and plasticizers like phthalate chemicals. Through this work, TCG clients seek to enforce California consumers’ statutory rights, to promote 16 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTpublic awareness of exposures to harmful chemicals, and to thereby reduce the unnecessary use of hazardous substances in consumer products. 37. Inthe last 20 years, TCG clients have successfully resolved hundreds of Proposition 65 cases and have been involved in many of the select few cases proceeding through a full trial on the merits. TCG clients have compelled scores of manufacturers to rid their products of unnecessary and previously hidden toxins, and have generated significant civil penalties, earmarked for the State of California. TCG has created a summary compilation of the civil penalty assessments and attorney fee settlements for all reported Proposition 65 settlements during the years 2005 through 2011, inclusive. A true and correct copy of this settlement summary is attached hereto and incorporated herein by this reference, as Exhibit C. This information is taken from the public database of all settlements reported to the Attorney General’s office as is now required under the statute. This settlement data can be found at, http://oag.ca.gow/prop65. 38. During the period of time from 2005 through 2011, TCG clients collected $7,010,940 in civil fines, while all other private enforcers combined collected only $2,662,519. While these figures are noteworthy on their own, their significance is perhaps increased when the proportional penalty collection is compared to the total attorney fees negotiated for TCG clients. TCG clients generated approximately 72% of the civil fines over this seven-year period, while collecting only 38% of the fees. Said another way, clients represented by TCG over the past seven years achieved the greatest civil fines to fees ratio when compared to all other private enforcers combined. TCG collects more fines for the State, while collecting less attorneys’ fees, when compared to the rest of the industry. It is important to note that this data does not reflect civil penalty credits awarded by TCG clients to those settling defendants that elected to reformulate their products, which would add several million dollars of value, if such adjusted civil fines were tracked. it Mt Mt If 17 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTI declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 3rd day of July 2012, at Berkeley, California. on Mahl 5 Malls, Rad S. Doughty Co Oem YN DH BF WN NN YN N YN NN DY ee Be Be Be Be Be Be Be con KD UW FF YW NY KF SO Oem ND HW BF YW NY KF CS 18 DECLARATION ISO MOTION TO APPROVE PROP. 65 SETTLEMENT AND CONSENT JUDGMENTZech AWw BR WN co wm ND Josh Voorhees, State Bar No. 241436 Rachel S. Doughty, State Bar No. 255904 ‘THE CHANLER GROUP 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 Attomeys for Plaintiff ANTHONY E. HELD, PH.D., P.E. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION ANTHONY E. HELD, PH.D., P.E., Case No. CGC-11-516586 Plaintiff, [PROPOSED] CONSENT JUDGMENT v. (Cal. Health & Saf. Code, § 25249.6 et seq.) TWO’S COMPANY, INC.; and DOES 1-150, inclusive, Defendants. [PROPOSED] CONSENT JUDGMENTpC e e wR Bw NM = coe UN 1, INTRODUCTION 1.1 Anthony E. Held, Ph.D., P.E. and Two’s Company, Inc. This Consent Judgment is entered into by and between Anthony E. Held, PH.D., P.E. (“Dr. Held” or “Plaintiff’) and Two’s Company, Inc. (“Two’s” or “Defendant”), with Held and Two’s collectively referred to as the “Parties.” 1.2 Plaintiff Dr. Held is an individual residing in California who seeks to promote awareness of exposures to toxic chemicals and improve human health by reducing or eliminating hazardous substances contained in consumer products. 1.3 Defendant Dr. Held alleges that Two’s employs ten or more persons and is a person in the course of doing business for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986, Health & Safety Code section 25249.6 et seq. (“Proposition 65”). 1.4 General Allegations Dr. Held alleges that Two’s has manufactured, distributed, and/or offered for sale in California cosmetic cases/bags containing di(2-ethylhexyl)phthalate (“DEHP”), luggage tags containing DEHP, and luggage tags containing lead without the requisite Proposition 65 warnings. DEHP and lead are listed pursuant to Proposition 65 as chemicals known to the State of California to cause birth defects and other reproductive harm. 1.5 Product Description The products that are covered by this Consent Judgment are the Mindy Weiss Bridesmaid Cosmetic Bag #8850 (#0 19218 08850 2) (“Mindy Weiss Bag”) distributed or sold by Two’s, directly or through others, to consumers in California, and the Hide & Seek Luggage Tag, #41169-20 (#0 19218 72065 5) (“Hide & Seek Tag”), distributed or sold by Two’s, directly or through others, to consumers in California (“Products”). 1.6 Notices of Violation On or about April 8, 2011, Dr. Held served Two’s and various public enforcement agencies with a document entitled 60-Day Notice of Violation that provided Two’s and such [PROPOSED] CONSENT JUDGMENToC Oo we NO officials with notice that alleged that Two’s was in violation of Proposition 65 for failing to warn its direct customers and end users that its cosmetic cases/bags exposed users in California to DEHP. On or about September 19, 2011, Dr. Held served Two’s and various public enforcement agencies with a Supplemental 60-Day Notice of Violation that provided Two's and such officials with notice that alleged that Two’s was in violation of Proposition 65 for failing to warn its direct customers and end users that its cosmetic cases/bags and luggage tags exposed users in California to DEHP and that its luggage tags exposed users in California to lead. The April 8, 2011 60-Day Notice of Violation and the September 19, 2011 Supplemental 60-Day Notice of violation will hereinafter be referred to as the “Notices.” 1.7. Complaint On December |4, 2011, Dr. Held filed a complaint in the Superior Court in and for the County of San Francisco against Two’s and Does | through 150 (the “Complaint” or “Action”), alleging violations of Proposition 65, based on the alleged exposures to DEHP contained in certain cosmetic cases/bags and luggage tags sold by Two’s, and to lead in certain luggage tags sold by Two’s. 1.8 No Admission Two’s denies the material factual and legal allegations contained in the Notices and Complaint and maintains that all products that it has sold in California, including the Products, have been, and are, in compliance with all laws. Nothing in this Consent Judgment shall be construed as an admission by Two’s of any fact, finding, conclusion of law, issue of law, or violation of law, nor shall compliance with this Consent Judgment constitute or be construed as an admission by Two’s of any fact, finding, conclusion of law, issue of law, or violation of law, such being specifically denied by Two’s. However, this Section shall not diminish or otherwise affect Two's obligations, responsibilities and duties under this Consent Judgment. 1.9 Consent to Jurisdiction For purposes of this Consent Judgment only, the Parties stipulate that this Court has jurisdiction over Two’s as to the allegations contained in the Complaint, that venue is prope