Preview
SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
18CV334378
Santa Clara — Civil
Edward J. Wynne (SBN #165819)
ewynne@wynnelawfirm.com
George R. Nemiroff (SBN #262058)
gnemiroff{@wynnelawfirm.com
WYNNE LAW FIRM
Wood Island
80 E. Sir Francis Drake Blvd. Suite 3G
Larkspur, CA 94939
Telephone (415) 461-6400
Facsimile (415) 461-3900
Bryan J. McCormack (SBN 192418)
bryan@mcelawfirm.com
MCCORMACK LAW FIRM
80 E. Sir Francis Drake Blvd., Suite 3G
Larkspur, CA 94939
Telephone (415) 925-5161
Facsimile (415) 651-7837
Plaintiff's Counsel
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
CIVIL - UNLIMITED JURISDICTION
THOMPSON LY, individually and on behalf of]
other members of the general public similarly
situated,
Plaintiff,
vs.
SAGE INTACCT, INC., and DOES 1 to 10,
Defendants.
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 11/9/2020 4:02 PM
Reviewed By: R. Walker
Case #18CV334378
Envelope: 5266293
Case No. 18CV334378
PLAINTIFF’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF AWARD OF ATTORNEYS}
FEES AND COSTS AND CLASS
REPRESENTATIVE ENHANCEMENT
AWARDS
[CLASS ACTION]
Complaint Filed: September 12, 2018
Date: December 10, 2020
Time: 1:30 p.m.
Hon. Brian Walsh
Dept. 1
i
PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
TABLE OF CONTENTS
INTRODUCTION .....ceeecesecseseeseseseesescsnenesesscacsnssssseueneaesucssseensaesesasansucacssensaeeucaceseneneeneaeee 1
COUNSEL’S FEE AWARD IS PROPERLY CALCULATED AS A
PERCENTAGE OF THE FUND... cessesseseseeseseesescseencenssscanescansnsnsaceneacansesaeereneaneneaeere 1
A. The Common Fund Doctrine ......0.ccccccescessessesees ees eeseeseeseeseesessessessesneseesssaneneeenaees 2
B. All Of The Factors Regarding Fee Requests Support The Requested
AWAIE oo eeescecees ees eeseeseeseeseeseesesseseesesseseesseseessestssssesseesesseeseeseesesseeessssesseseesesseeneeneaes 3
Le she vResulistACWICVCCs ties c ,
2. Risks of Litigation... eeesecsesesessesesteseensssseseeaeensecaeenessacsesacenensacerencerenes 5
3 The Skill Required and the Quality Of Work... ceseseesseeeeeseeeeeeeeeeee 6
4. The Contingent Nature of the Fee and the Financial Burden .................. 6
5 Awards in Similar Cases ........c.cscssesescessessescessesteseenesssssesesseesessesseesesseeness 8
Cc. Plaintiff's Request For Attorney’s Fees Is Reasonable By A Lodestar
Cross-Check........csccsessesseeseesenee
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
1. Class Counsels’ Hourly Rates Have Previously Been Approved..............9
a @lass\Counselys|leodestat street erences 9
3. Multiplier Is Appropriate ...........ceeeseeseseeeeseseeseeeeeeseseeneecseseneeneaseneensenees 11
Dz. Class Counsel’s Costs Were Reasonably Incurred. .............:ccsesseseseesesesteseeeeseeee 12
Be The Class Representatives Should Receive the Requested Service Award......... 12
TIT, = CONCLUSION .......eescesssesseesseessessseestesseesseeseassessessesneeseaseessesscsussaseaseessecsneeneeaseessesseesnes 13
ii
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
TABLE OF AUTHORITIES
Federal Cases
Boeing Co. v. Van Gemert
(1980) 444 U.S. 472. eecescseecscescsescecscesseseseecscssscsesescscesecsescecscseensscecseeseensseeseenseeeseeseenseeereee 4
Brotherton v. Cleveland,
(S.D. Ohio 2001) 141 F.Supp.2d 907 ...sssccccsssssssssssssssssssesssssssssssesssssssssssesssssssssssessesessssseeeee 13
Central Railroad & Banking Co. of Ga. v. Pettus,
MSGS UG CCS Siete ce 3
Cook v. Niedert,
(7th Cir. 1998) 142 F.3d 1004 oo ceeeeeseseseessesesesesescsesssescsesssssssssssessssssseassesssesssesseeteee LF
Enter Energy Corp. v. Columbia Gas Transmission Corp.
(CS: Ohio wOO els 7sR AR D240 eee
Florin v. Nations Bank of Georgia,
(9th Cir. 1994) 34 F.3d 560 oo. ceccseceseesesessesesesssseessessssesesesscsessssesnsassesessesesesaeseescsessseeseeneaeenee 3
Glass vy. UBS Fin. Servs.,
(N.D. Cal. Jan. 27 2007)
2007 U.S. Dist. LEXIS 8476 ......cecesesssssssssesseseseeessesesesesnesesesssesessesesesassesseseseeeeaesneneaeeecaeeenes 5, 13
In re Bluetooth,
(9th Cir. 2011) 654 F.3d 935 oo. eeeeceeeeeeseeteeeee ee
Inre Dun & Bradstreet Credit Servs. Customer Litig.
(S.D. Ohio 1990) 130 F.R.D. 366... ecesessesesesesesesesesesesesesesesescsessarssecscsesssessseassesssesssessseeeee LO
In re Heritage Bond Litig.,
(C.D. Cal. June 10, 2005)
USS. Dist. LEXIS 13627 o.eeecececssecsesecessesesseseseseseenesssesneseseeneaesesssnsueaeseencensucassnsncasseeasensnenssneneaes 4
In re Immune Response Sec. Litig.
(S.D. Cal. 2007) 497 F.Supp.2d 1166...
In re Omnivision Technologies,
(N.D. Cal. 2007) 2007 WL 4293467 ......eeesssssssessssssesessessescseseesenesesnsseeseaeseeneaeereneneeneaeereneneenees 4,4
In re Rite Aid Corp. Secs. Litig.
(3d Cir. 2005) 396 F.3d 294 ooo. eeeecccecssseceesesessesesessesessesesessesesessesesnesesesaesnsecsesesssassesassesecassessceesseee
In re Warner Communications Sec. Lit.
CSEDEING YE VOSS)OVS SUD: 155
In re Washington Pub.Power aaa a Sec. a
(1994) 19 F.3d 1291... ee |
Kress v. a
E.D. Cal. Case 2:08-cv-00965-TLN-AC, April 19, 2018 ......ceeeecsesseseseesesessseseesesesreneseeneseereee 8
McKittrick v. Gardner,
(4th Cir, 1967) 378 F.2d 872 .....eeccecssecseesseessessesssesssessnesseesnesseesecsneeseessesssessesssesseesetsessnessesseesee J
iii
PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
McLeod v. Bank of America,
N.D. Cal. case number 16-cv-03294-EMC.
Paul, Johnson, Alston & Hunt v. Gaulty,
(9th Cir. 1989) 886 F.2d 268 oo... eee sseeseseesesesesseseesesesessesesnsassesseaesnsacsesseseeeeusesseeneeesusaseeeneees 3,4
Powers v. Eichen,
(Oth Cir. 2000) 229 F.3d 1249 .o.ceccecesceseeseeseesesseessssessesseseesessesseesessessessessseesssseesnesnsstsensnssesenese
Sarinana v. D.S. Waters of America,
N.D. Cal. Case 3:13-cv-00905 EMC, February 12, 2015.......eeseesessessesssseseeeseseeneeeeenssneneesenene a
Van Vranken vy. Atlantic Richfield Co.
(N.D. Cal. 1995) 901 F.Supp. 294 v.cccssssssssssssssssssssessessssesssssssssssssssssssesssesssssesssssesssessssssssssesesess 13
Vincent v. Hughes Air West
(9th Cir. 1977) 557 F.2d 759 .
State Cases
Aldo U.S. Wage & Hour Cases,
Orange County Superior Court, JCCP No. 4581, October 24, 2012 .....c.ccceesseessesecssseeseseseeee F
Brinkel v. Westamerica Bank,
Marin County Sup. Ct. Case number CIV 1303112... csceessesessssssessesessesesessscsessesesssscssescsseeeee
Duran et al. v. U.S. Bank, N.A.
(2014) 59 Cab 4th Loosccccsccccssssssssssesssssssssseesssssssssesnssssossesseesassssessseunsesesrssesecessasssessesnsasssseseseen
Harris v. CUSO Financial Services,
San Diego County Superior Court Case 37-2015-4960-CU-OE-CTL, September 21, 2017...... g
In re Ret. Cases,
2003 WL 22506555, (Cal. Ct. App. Nov. 4, 2003) .......ccssscesssesesesseseseeeseseessesssesssseeeesseseseeeeeee Ll
Laffitte v. Robert Half Intern,
(2016) 1 Cal Sth 480, 503... eecessesssessssssessnseseessecsssseesssesecsssessessecssessnsssssnessessseesseesesssesseseseeseee q
Lee v. Activision Blizzard,
Los Angeles County Superior Court Case BC 575664, June 14, 2017 ......ceceeceesseseseeeeseeseseeeeee
Lowe v. Merrill Lynch, Pierce, Fenner & Smith, Incorporated,
Alameda Sup. Ct. Case number RG 18906865 0.0... sscesssseeeseseeesrestereseeeeeeneereenteteseerseeneeteneaee I
Paparella v. JPMorgan Chase Bank,
Orange County Superior Court Case 30-2010-370146, August 15, 2014... eseseeeeeseseseeeee g
Puchatlski et al. v. Taco Bell Corp.,
(San Diego County Superior Court Case GIC 870429)..
Sav-On v. Superior Court,
(2004) 34 Cal 4th 319... eecccecsesssssessssessessesseeseesesseessssssssssssessessecssessenesssesssessecsesseesseseesseasensseseess® q
Serrano vy. Priest,
(1977) 20 Cal.3d 25 w.oceccesecsssseesecsessesssssseessssessessesseesssessssssseesesseesessessesseessssssecsrsseessesesatessenssecaness q
iv
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
Walsh vy. Overton,
Alameda County Superior Court Case RG 13679913, May 8, 2015.0... essessessseseeeseenessseeneeeeneee g
Wershba v. Apple Computer,
(2001) 91 Cal. App.4th 224 wc sccscseesseseesnesesseesesessessssnesesseseeseeseeseesessessasseseesesnenneenaee 1]
Statutes, Rules & Regulations
A. Conte, Attorney Fee Awards,
PT eee eee eee ee Br4
Newberg, Newberg on Class Actions,
3rd Ed., § 14.03 ...ccccccscssessesessesseseessesseseeseesessesseesessessessesesnsseescssnsenssssessssessesseeseeseesssesseesneseeses 8
R. Pearle, California Attorney Fee Awards (CEB) § 7.4 ...c.ssssssssssssessesessessssssesessssesessesesseseseseeseeees 4
v
PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
I. INTRODUCTION
After over two years of litigation, Class Counsel successfully negotiated a Settlement
with Defendant Sage Intacct, Inc., which provides for a $1,100,000 common fund for the
payment and administration of claims of the Class Members, the payment of attorney’s fees and
costs, and Plaintiff's service award. Class Counsel is seeking attorney’s fees of 33.3% of the
common fund as the class was notified in the Notice of Class Action Settlement. Preliminary
approval of the Class Settlement was granted on August 8, 2020 and notice of the Settlement
was mailed to the Class Members. Not one Class Member has objected to the requested fee
award or requested service awards. The requested fee falls within the Ninth Circuit’s
benchmark of 25% to 40% of a common fund and is fair compensation for undertaking such
complex, risky and time-consuming litigation on a contingent basis.
Since the attorneys’ fees requested are well within the range of reasonableness and the
results achieved for the Class Members are excellent, Plaintiff respectfully requests that the
Court award the requested fees in the amount of 33% or $366,666. Plaintiff also respectfully
requests that the Court order payment of a class representative service award of $7,500 to
Plaintiff and Counsel’s costs in an amount of $13,389.
II. COUNSEL’S FEE AWARD IS PROPERLY CALCULATED AS A
PERCENTAGE OF THE FUND
Class Counsel seeks a fee award for his successful prosecution and resolution of this
action, calculated as 33% of the common fund created by the Settlement. As stated by the
California Supreme Court:
[U]se of the percentage method to calculate a fee in a common fund case, where
the award serves to spread the attorney fee among all the beneficiaries of the fund,
does not in itself constitute an abuse of discretion. We join the overwhelming
majority of federal and state courts in holding that when class action litigation
establishes a monetary fund for the benefit of the class members, and the trial court
in its equitable powers awards class counsel a fee out of that fund, the court may
determine the amount of a reasonable fee by choosing an appropriate percentage of
the fund created. The recognized advantages of the percentage method—including
relative ease of calculation, alignment of incentives between counsel and the class,
a better approximation of market conditions in a contingency case, and the
encouragement it provides counsel to seek an early settlement and avoid
1
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
unnecessarily prolonging the litigation (Citation) convince us the percentage
method is a valuable tool that should not be denied our trial courts.
Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 503.
Prior California decisions and federal courts have long recognized that an appropriate
method for determining the award of attorneys’ fees is based on a percentage of the total value
of benefits afforded to class members by the settlement. Serrano v. Priest (1977) 20 Cal.3d 25,
34 (“Serrano IIT”); Boeing Co. v. Van Gemert (1980) 444 U.S. 472, 478; see also Vincent v.
Hughes Air West, Inc. (9th Cir. 1977) 557 F.2d 759, 769. The awarding of a fee based on a
percentage of the common fund recovered is to “spread litigation costs proportionately among
all the beneficiaries so that the active beneficiary does not bear the entire burden alone.”
Vincent v. Hughes Air West, Inc., supra, 557 F.2d at 769. The total settlement fund is
$1,100,000. Class Counsel is requesting a total fee award of 33% or $366,666.
A. The Common Fund Doctrine
The Common Fund Doctrine is predicated on the principle of preventing unjust
enrichment. It provides that when a litigant’s efforts create or preserve a fund from which others
derive benefits, the litigant may require the passive beneficiaries to compensate those who
created the fund. Both state and federal courts in California have embraced this doctrine.
Serrano v. Priest (Serrano III), supra, at 35; Cramptom v. Takegoshi (1993) 17 Cal.App.4th
308, 317; Vincent v. Hughes Air West, Inc., supra, at 769.
The Common Fund Doctrine is the oldest exception to the American rule, which
prohibits fee shifting, that is, awarding attorneys’ fees to the winning party from the losing party
without statutory or contractual authorization.
The Common Fund exception is grounded in the historic power of equity to
permit the trustee of a fund or property (or a party preserving or recovering a fund
for the benefit of others, as well as himself or herself) to recover costs, including
attorney’s fees. Those costs and fees are paid out of the fund or property itself, or
directly from the other parties enjoying the benefit.
R. Pearle, California Attorney Fee Awards (CEB) § 7.4, at 7-5.
In the present case, a common fund has been created and the requisites supporting
payment of fees by the beneficiaries of that fund are satisfied. Under this doctrine, courts have
2
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
recognized that class litigation is necessary to protect the rights of individuals whose injuries are
too small to economically justify individual representation. In Paul, Johnson, Alston & Hunt v.
Gaulty (9th Cir. 1989) 886 F.2d 268, 271, the Ninth Circuit embraced this principle when it
stated:
Since the Supreme Court’s 1885 decision in Central Railroad & Banking Co. of
Ga. v. Pettus, 113 U.S. 116 (1885), it is well settled that the lawyer who creates a
common fund is allowed an extra reward, beyond that which he has arranged with
his client, so that he might share the wealth of those upon whom he has conferred
a benefit. The amount of such a reward is that which is deemed ‘reasonable’
under the circumstances.
Accordingly, in determining a reasonable common fund fee award, courts should
properly consider the fact that fees serve as an economic incentive for lawyers to bring class
action litigation in order to achieve increased access to the judicial system for meritorious
claims and to enhance deterrents to wrongdoing. See, A. Conte, Attorney Fee Awards, 2nd. Ed.,
§ 104, at 6. Without prosecution on a contingent basis and use of the class action mechanism,
the courthouse door would effectively be closed to all class members due to the relatively small
amount of their individual claims in relation to the enormous time and cost associated with class
action litigation. When the Ninth Circuit held that the Common Fund Doctrine was available in
ERISA cases, the court echoed the foregoing sentiment:
Having determined that risk multipliers remain available in common fund cases
after Dague, we further note that we have held, in a pre-Dague case, that a risk
multiplier is not merely available in a common fund case but mandated, if the
court finds that counsel ‘had no sure source of compensation for their services .. .
Moreover, we have observed that the need for such an adjustment is particularly
acute in class action suits. The lawyers for the class receive no fee if the suit fails,
so their entitlement to fees is inescapably contingent.’
Florin v. Nations Bank of Georgia (9th Cir. 1994) 34 F.3d 560, 564.
When this case was originally filed it was “inescapably contingent.” Further, the result
was by no means guaranteed. Effective prosecution of this case was founded upon the risky
contingent investment of time and expense.
B. All of The Factors Regarding Fee Requests Support The Requested Award
Fee determinations in both common fund and statutory fee situations are incapable of}
3
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
mathematical precision because of the intangible factors that must be resolved in the court’s
discretion based on the circumstances of each particular case. See, A. Conte, Attorney Fee
Awards, 2nd Ed., § 207, at 44. In determining an appropriate fee in a common fund case, a court
must decide, based on the unique posture of each case, what percentage of the common fund
would most reasonably compensate class counsel given the nature of the litigation and the
performance of counsel. Paul, Johnson, Alston & Hunt v. Gaulty (9th Cir. 1989) 886 F.2d 268,
272 (the benchmark percentage fee may be adjusted to account for the circumstances involved
in this case.)
Courts apply a five-part test in calculating a reasonable percentage fee in common fund
cases.
(1) the results achieved; (2) the risk of litigation; (3) the skill required and the
quality of work; (4) the contingent nature of the fee and the financial burden
carried by the plaintiffs; and (5) awards made in similar cases.
In re Omnivision Technologies, Inc. (N.D. Cal. 2007) 2007 WL 4293467 at *9.
Here, each of these five factors strongly supports an award of the percentage fee
requested in this case.
1. The Results Achieved
“The overall result and benefit to the class from the litigation is the most critical factor
in granting a fee award.” Omnivision, 2007 WL 4293467 at *9; See also, Jn re Heritage Bond
Litig. (C.D. Cal. June 10, 2005) U.S. Dist. LEXIS 13627, at *27-28.
Class Counsel obtained an outstanding result in this case for the Class Members. The
Settlement provides monetary benefits to the Class Members that are superior to those
recovered in similar overtime wage class actions. (Declaration of Edward J. Wynne in support
of Motion for Final Approval, Award of Attorneys’ Fees and Costs and Class Representative
Enhancement Awards (“Decl. of Wynne”) at § 24.) The Settlement is particularly advantageous
to the Class Member because the proceeds will be distributed shortly as opposed to waiting
additional years for a similar, or possibly, less favorable result.
There is little question that the result achieved in this litigation is excellent. The absence
of any objection to either the settlement or the attorney’s fee request from any of the Class
4
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
Members supports this finding. Most Class Members will receive thousands of dollars as their
share of the settlement. Based on preliminary estimated settlement amount calculations, the
highest Individual Settlement Payment to be paid is $30,089.63, the lowest is approximately
$211.90, and the average is approximately $7,874.54. The average amount per workweek is
approximately $98.89. (See Declaration of Elizabeth Kruckenberg in support of Motion for
Final Approval (“Decl. of Kruckenberg”) at 11.) In fact, these amounts will increase due to
interest being earned on the fund.
Additionally, the weekly amount represents approximately two hours of overtime for
every week the Class Member held a class position including any weeks where the Class
Member may have been absent due to vacation, holiday or sickness. (Decl. of Wynne, §j 19-
20.) The average Class Member’s recovery is a sum that most likely exceeds most Class
Member’s expectations and is a significant amount by any measure.
The Class Members also received a substantial benefit as the result of the settlement of|
this action both in terms of receiving the settlement proceeds much sooner and avoiding the risk
of receiving nothing at all. (Decl. of Wynne, § 34.) See Glass v. UBS Fin. Servs. (N.D. Cal. Jan.
27 2007) 2007 U.S. Dist. LEXIS 8476 at *48 (“The early settlement of the instant action
resulted in significant benefit to the class.... Class counsel achieved an excellent result for the
class members by settling the instant action promptly.”)
2. Risks of Litigation
“The risk that further litigation might result in Plaintiffs not recovering at all,
particularly a case involving complicated legal issues, is a significant factor in the award of
fees.” Omnivision, 2007 WL 4293467 at *9. At the time this case was brought, the result was far
from certain. Defendant’s numerous defenses to the case created difficulties with proof and
complex legal issues. As enumerated in the Motion for Final Approval, some of the risks
included denial of certification, judgment for Defendant at trial, and judgment for Defendant in
the Court of Appeal and/or Supreme Court. All of these are very substantial risks, any of which
could have resulted in the Class receiving nothing.
3
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
3. The Skill Required and the Quality of Work
As set forth in the Declaration of Edward J. Wynne, Class Counsel has consistently
demonstrated the highest standards of professionalism, skill and ability. Class Counsel has tried
to judgment the only known misclassification class action in California at both the liability and
damages phases under California’s outside sales exemption which ultimately resulted in the
opinion Duran et al. v. U.S. Bank, N.A. (2014) 59 Cal.4th 1. The Supreme Court called it “an
exceedingly rare beast.” /d. at 12. The case was remanded back to the Superior Court where
class certification was denied (and affirmed by the Court of Appeal in a second published
opinion) after 17 years of hard-fought litigation. Class Counsel was also counsel in another
pillar of the wage & hour litigation, Sav-On v. Superior Court (2004) 34 Cal.4th 319. In
addition, Class Counsel tried an executive exemption case through Plaintiffs’ case-in-chief,
Puchalski et al. v. Taco Bell Corp. (San Diego County Superior Court Case GIC 870429), in a
single phased trial. In addition to these high-profile cases, Counsel has litigated numerous wage
& hour class actions over the past 20+ years and is recognized as an expert by his peers. (Decl.
of Wynne, §f 2-11.)
Class Counsel brought his extensive and unique experience to this case and was able to
employ it for the benefit of the class. Class Counsel demonstrated superior skill in focusing
discovery and maneuvering the case toward relatively early settlement while avoiding
substantial law and motion practice for the benefit of the Class.
4. The Contingent Nature of the Fee and the Financial Burden
This case was litigated on a contingent basis with all of the concomitant risk factors
inherent in such an uncertain undertaking. (Decl. of Wynne, § 25.) There is a substantial
difference between the risk assumed by attorneys being paid by the hour and attorneys working
on a contingent fee basis. The attorney being paid by the hour can go to the bank with his fee.
Powers y. Eichen (9th Cir. 2000) 229 F.3d 1249, 1256. The attorney working on a contingent
basis can only log hours while working without pay towards a result that will hopefully entitle
him or her to a market place contingent fee taking into account the risk and other factors of the
undertaking. /d. at 1257. Otherwise, the contingent fee attorney receives nothing. Jd. In this
6
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
case, Class Counsel subjected themselves to this contingent fee market risk in this all-or-nothing
contingent fee case wherein the necessity and financial burden of private enforcement makes the
requested award appropriate. (Decl. of Wynne, {ff 25, 34.)
Counsel retained on a contingency fee basis, whether in private matters or in class action
litigation, is entitled to a premium beyond his or her standard, hourly, non-contingent fee
schedule in order to compensate for both the risks and the delay in payment. The simple fact is
that despite the most vigorous and competent of efforts, success is never guaranteed. McKittrick
v. Gardner (4th Cir. 1967) 378 F.2d 872, 875. Indeed, if counsel is not adequately compensated
for the risks inherent in difficult class actions, competent attorneys will be discouraged from
prosecuting similar cases. Steiner v. BOC Financial Corp. (S.D.N.Y. October 10, 1980) 1980
U.S. Dist. LEXIS 14561 at *6 -*7.
Here, the contingent nature of the fee award, both from the point of view of eventual
settlement and the point of view of establishing eligibility for an award, also warrant the
requested fee award. A number of difficult issues, the adverse resolution of any one of which
could have doomed the successful prosecution of the action, were present here. Attorney’s fees
in this case were not only contingent but extremely risky, with a very real chance that Class
Counsel would receive nothing at all for his efforts after having devoted significant time and
advancing costs. (Decl. of Wynne, § 34.) In addition to Counsels’ time, Counsel also bore the
financial burden of advancing all costs. Especially in this type of litigation where the corporate
defendants and their attorneys are well-funded, this can prove to be very expensive and risky.
Because the risk of advancing costs in this type of litigation can be significant, it is therefore
cost prohibitive to many attorneys. (Decl. of Wynne, §{ 35-36.) Here, the financial burden
undertaken by Class Counsel was not insubstantial by the time settlement was reached. Of
course, the costs would have increased exponentially as the action progressed if no settlement
had been reached. Class Counsel advanced a total of $13,389 in costs which could not have
been recovered if this case had been lost. (See “Summary of Costs” attached as Exhibit 2 to the
Declaration of Edward. J. Wynne.)
7
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
5. Awards in Similar Cases
The attorney’s fees requested by Class Counsel are within the range of fees awarded in
comparable cases. A review of class action settlements shows that the courts have historically
awarded fees in the range of 20% to 50% depending upon the circumstances of the case. Class
Counsel’s requested fees are one-third of the fund, a percentage well within the range of|
reasonableness given the excellent results obtained for the Class, the risks undertaken, and the
skill of the prosecution. In Jn re Warner Communications Sec. Lit. (S.D. N.Y. 1985) 618
F.Supp. 735, 749-50, the court concluded that percentage fees in common fund cases range
from 20% to 50%. Professor Newberg is in accord:
No general rule can be articulated on what is a reasonable percentage of a
common fund. Usually 50% of the fund is the upper limit on a reasonable fee
award from a common fund in order to assure that the fees do not consume a
disproportionate part of the recovery obtained for the class, although somewhat
larger percentages are not unprecedented.
Newberg, Newberg on Class Actions, 3rd Ed., § 14.03, at 14-13.
Some of the class action awards obtained by Class Counsel herein from courts around
the state support the reasonableness of a fee award requested here:
© Kress v. PriceWaterhouseCoopers, E.D. Cal. Case 2:08-cv-00965-TLN-AC,
April 19, 2018, Hon. Troy Nunley (33% fee awarded to Wynne Law Firm).
© Harris v. CUSO Financial Services, Inc., San Diego County Superior Court
Case 37-2015-4960-CU-OE-CTL, September 21, 2017, Hon Richard E. L. Strauss (33% fee
awarded to Wynne Law Firm).
@ Lee v. Activision Blizzard, Inc., Los Angeles County Superior Court Case BC
575664, June 14, 2017, Hon. Maren E. Nelson (33% fee awarded to Wynne Law Firm).
e Walsh v. Overton, Alameda County Superior Court Case RG 13679913, May
8, 2015, Hon. Wynne Carvill (33% fee awarded to Wynne Law Firm).
e Sarinana v. D.S. Waters of America, Inc., N.D. Cal. Case 3:13-cv-00905 EMC,
February 12, 2015, Hon. Edward M. Chen (33% fee awarded to Wynne Law Firm).
e Paparella vy. JPMorgan Chase Bank, Orange County Superior Court Case 30-
8
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
2010-370146, August 15, 2014, Hon. Robert J. Moss (33% awarded to Wynne Law Firm).
e Aldo U.S. Wage & Hour Cases, Orange County Superior Court, JCCP No.
4581, October 24, 2012, Hon. Steven L. Perk (33% awarded to Wynne Law Firm).
(Decl. of Wynne, § XX.)
A fee award of 33.3% of the common fund in this case is reasonable in light of the
prevailing fees that have been awarded in other similar cases as set forth above. Furthermore, it
is certainly significant that not a single objection has been made to the fee request.
Cc. Plaintiff's Request For Attorney’s Fees Is Reasonable By A Lodestar Cross-Check.
Plaintiff's fee request is also reasonable based on the lodestar analysis as a final “cross-
check on the percentage method.” Jn re Washington Pub.Power Supply Sys. Sec. Litig. (1994)
19 F.3d 1291, 1296-1298. Where the lodestar method is used as a cross-check, it can be
performed with a less exhaustive cataloguing and review of counsel’s hours. See In re Rite Aid
Corp. Secs. Litig. (3d Cir. 2005) 396 F.3d 294, 306 (‘The lodestar cross-check calculation need
entail neither mathematical precision nor bean-counting.”); Jn re Immune Response Sec. Litig.
(S.D. Cal. 2007) 497 F.Supp.2d 1166 (“Although counsel have not provided a detailed
cataloging of hours spent, the Court finds the information provided to be sufficient for purposes
of lodestar cross-check.”). The lodestar method is calculated by multiplying “the number of|
hours reasonably expended on the litigation ... by a reasonable hourly rate.” In re Bluetooth,
(9th Cir. 2011) 654 F.3d 935, 941.
1. Class Counsels’ Hourly Rates Have Previously Been Approved.
In terms of the hourly rate, Class Counsel Edward J. Wynne has been approved, in botl
federal and state courts, at the hourly rate of $820. (Decl. of Wynne, {| 33.) In McLeod v. Bank of
America, N.D. Cal. case number 16-cv-03294-EMC, on March 19, 2019, Judge Chen approved
Counsel’s hourly rate of $820 which was supported with an expert declaration. (Dkt. 79, N.D!
Cal. case 16-cv-03294-EMC.) In Brinkel v. Westamerica Bank, Marin County Sup. Ct. Cas¢
number CIV 1303112, on March 22, 2019, Judge Chernus likewise approved Counsel’s hourl
rate of $820. Most recently, on July 30, 2020, in Lowe v. Merrill Lynch, Pierce, Fenner & Smith,
9
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
Incorporated, Alameda Sup. Ct. Case number RG 18906865, Judge Winifred Y. Smith approved
Counsel’s hourly rate of $820.
2. Class Counsel’s Lodestar
Class Counsel has worked on this case for over two years. During this time, Class
Counsel’s respective offices invested 648.9 hours in prosecuting this case on behalf of the
Class. (Decl. of Wynne, § 26; Decl. of McCormack, § 4.) Class Counsel reasonably expects to
incur an additional 20 hours in order to carry out all the terms of the settlement for which they
will not seek additional compensation for. (Decl. of Wynne, § 26.) Class Counsel will be
spending this time on such activities as: Preparing for and attending the hearing on final
approval; conferring with the Settlement Administrator and reviewing its reports;
communicating with Plaintiff; communicating with Class Members prior to and after final
approval on a variety of issues including, but not limited to, the status of the settlement, status
of their claim, explaining the settlement, handling lost checks, and address updates;
communicating with defense counsel; resolving disputes; and, generally carrying out the terms
and conditions of the settlement. (Decl. of Wynne, §] 26.) As such, Class Counsel’s office will
have invested 668.9 hours in prosecuting this case for the benefit of the class. (/d.)
Accordingly, Class Counsel’s combined lodestar is currently $342,949 (Decl. of Wynne,
4 27-28; Decl. of McCormack, § 5.) The time spent and the fees incurred were reasonable and
necessary for the successful prosecution of this case. (Decl. of Wynne, { 27.) Counsel’s detailed
time records were kept contemporaneously. (Decl. of Wynne, § 28.) Due to the length of time
this case has been pending and the amount and type of activities that were needed to be
performed, not all time was captured in Counsel’s time records. Class Counsel estimates that up
to 5% of the firm’s time was not recorded. (Decl. of Wynne, { 30.)
A summary of each person’s lodestar is below:
10
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
WYNNE LAW FIRM & MCCORMACK LAW FIRM
LODESTAR SUMMARY
Hourl: Total
Rate” Hours ee
Edward J. Wynne $820.00 120.7 $98,974
Bryan McCormick $750.00 219.0 $164,250
George Nemiroff $525.00 27.0 $14,175
Ben Leash (Paralegal) $250.00 220.5 $55,125
Lesley Amberger
(Paralegal) $250.00 417 $10,425
628.9 $342,949
(Decl. of Wynne, §] 28; Decl. of McCormick, {] 5.)
3. Multiplier Is Appropriate
In common fund cases, courts frequently apply multipliers to the lodestar to reflect the
risks involved, the complexity of the litigation, and other relevant factors. See Vizcaino, 290
F.3d at 1051 (courts “routinely enhance[] the lodestar to reflect the risk of non-payment in
common fund cases”). Such an enhancement “mirrors the established practice in the private
legal market of rewarding attorneys for taking the risk of nonpayment by paying them a
premium over their normal hourly rates for winning contingency cases.” Jd.
Class Counsel bore a high contingent risk. (Decl. of Wynne, {| 34.) Based on this risk, as
well as the other relevant factors, the resulting modest multiplier of 1.07 on the lodestar cross-
check is below the range of multipliers that courts regularly approve as fair and reasonable.
Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255 (multipliers can range from
2 to 4 or even higher); Jn re Ret. Cases, 2003 WL 22506555, at *8 (Cal. Ct. App. Nov. 4, 2003)
(affirming 4.0 multiplier in determining statutory fees); Steiner v. American Broad. Co. (9th Cir.
2007) 248 Fed. Appx. 780, 783 (affirming fee award where the lodestar multiplier was 3.65).
Here, the application of a very modest 1.07 multiplier is warranted given the significant
results achieved for the Class, the substantial risks of the litigation, and the lack of any
objection. Thus, the lodestar cross-check demonstrates that the $366,666 fee is fair and
reasonable. (Decl. of Wynne, {J 40-42.)
11
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
D. Class Counsel’s Costs Were Reasonably Incurred.
Class Counsel requests a cost award of $13,389. (Decl. of Wynne, {| 35-36, Exh. 2,
“Summary of Costs”.) These expenses include the amounts paid for service of process, legal
research charges, travel expenses, mediation fees, court fees and delivery charges, all of which
are costs normally billed to and paid by the client. These costs were reasonably incurred in the
prosecution of this matter. (Decl. of Wynne, § 36, Exh. 2.)
E. The Class Representatives Should Receive the Requested Service Award
Plaintiff respectfully submits that for his service as the Class Representative, Plaintiff
Thompson Ly should be awarded $7,500. Defendant does not oppose this service award. The
requested award was disclosed to the Class Members and not one Class Member objected. Here,
Plaintiff placed the interests of the class before his own, including, for example, acknowledging
his duties as class representative before the action was ever filed. (Decl. of Wynne, {| 37.)
Plaintiff also retained experienced counsel and actively participated in the litigation throughout
its pendency. (/d.; Declaration of Thompson Ly (“Ly Decl.”), { 4.) Plaintiff is not a plaintiff or
party in any other pending similar class action(s). (/d.)
Plaintiff assisted in the prosecution of this action by educating Class Counsel about the
work performed by the Class Members and Defendant’s policies and procedures. Beyond
educating Class Counsel about Defendant’s business, Plaintiff assisted by providing documents
from his employment with Defendant which were instrumental in Class Counsel’s
understanding of the case. (Decl. of Wynne, { 37; Ly Decl., § 6.) Plaintiff also provided contact
information to Class Counsel of putative class members and contacted them to encourage their
participation in the action. (/d.) Plaintiff also participated in the action throughout its pendency,
including the settlement process. (/d.) Additionally, Plaintiff responded to formal and informal
discovery requests. (Decl. of Wynne, § 37.) He also had his deposition taken for a partial day
but was not completed and worked with counsel before his deposition to ensure that he was
thoroughly prepared. (Decl. of Wynne, § 37; Decl. of Ly, §[ 6.) It is estimated that Plaintiff
expended at least 35 hours assisting Counsel during the pendency of this action. (Decl. of Ly,
6).
12
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
In addition to Plaintiff's active participation and assistance in the prosecution of this
action, Plaintiff knowingly gave up his right to prosecute his own individual potential claims
against Defendant in order to represent the interests of the putative class without any conflict.
Plaintiff has agreed to execute a general release of all claims with a Civil Code section 1542
waiver. In doing so, Plaintiff demonstrates his commitment to putting the interests of the class
above his own individual interests, including the associated sacrifice of viable individual claims.
(Decl. of Wynne, § 38; Decl. of Ly, § 7.) Thus, Class Counsel recommends that the requested.
enhancement payment to Plaintiff is fair, adequate and reasonable under these circumstances.
(Decl. of Wynne fj 40-42.)
The payment of service awards to successful class representatives is appropriate and the
amount of $7,500 in total is well within the currently accepted range. See e.g. Van Vranken v.
Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294, 299-300 (incentive award of $50,000);
In re Dun & Bradstreet Credit Servs. Customer Litig. (S.D. Ohio 1990) 130 F.R.D. 366 (two
incentive awards of $55,000, and three incentive awards of $35,000); Brotherton v. Cleveland
(S.D. Ohio 2001) 141 F.Supp.2d 907, 913-14 (granting a $50,000 service award); Enter Energy
Corp. v. Columbia Gas Transmission Corp. (S.D. Ohio 1991) 137 F.R.D. 240 ($50,000 awarded
to each class representative). Glass v. UBS Fin. Servs., (N.D. Cal. Jan. 27 2007) 2007 U.S. Dist.
LEXIS 8476 at *51-*52 (awarding $25,000 service award in FLSA overtime wages class
action); Cook v. Niedert (7th Cir. 1998) 142 F.3d 1004, 1016 (affirming $25,000 service award
to class representative in ERISA case).
Plaintiff's efforts in bringing the lawsuit have conferred a substantial benefit on all Class
Members. Class Counsel respectfully requests that the Court approve the requested service
awards.
Il. CONCLUSION
The representation of the Class provided by Class Counsel has been wholly contingent.
Class Counsel’s fee request is well within the realm of reasonableness for fee requests approved
by California and federal courts given the efforts expended in this case and the stage of
proceedings at the time of the Settlement. Moreover, Class Counsel undertook great risks on a
13
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378SCO mem ND HW BR YW NY
Cm ND DA A Rw N
beoN NY NY YY NN YD
eo IA DWF BN | S
contingent fee basis and achieved an outstanding result for the benefit of Class Members.
Based on the foregoing, Class Counsel respectfully requests approval of the application for
award of attorneys’ fees and costs of one-third of the value of the settlement. It should be noted
that Class Counsel will finish the prosecution of this action including the disbursement of funds,
final accounting and defense of an appeal, if any, without a subsequent attorney’s fee request.
Dated: November 9, 2020 WYNNE LAW FIRM
lo
Edward J. Wynne
Bryan McCormick
George R. Nemiroff
Attorneys for Plaintiff
14
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES.
AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
18CV334378
Preview
SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S 18CV334378 Santa Clara — Civil Edward J. Wynne (SBN #165819) ewynne@wynnelawfirm.com George R. Nemiroff (SBN #262058) gnemiroff{@wynnelawfirm.com WYNNE LAW FIRM Wood Island 80 E. Sir Francis Drake Blvd. Suite 3G Larkspur, CA 94939 Telephone (415) 461-6400 Facsimile (415) 461-3900 Bryan J. McCormack (SBN 192418) bryan@mcelawfirm.com MCCORMACK LAW FIRM 80 E. Sir Francis Drake Blvd., Suite 3G Larkspur, CA 94939 Telephone (415) 925-5161 Facsimile (415) 651-7837 Plaintiff's Counsel SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL - UNLIMITED JURISDICTION THOMPSON LY, individually and on behalf of] other members of the general public similarly situated, Plaintiff, vs. SAGE INTACCT, INC., and DOES 1 to 10, Defendants. Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/9/2020 4:02 PM Reviewed By: R. Walker Case #18CV334378 Envelope: 5266293 Case No. 18CV334378 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS} FEES AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS [CLASS ACTION] Complaint Filed: September 12, 2018 Date: December 10, 2020 Time: 1:30 p.m. Hon. Brian Walsh Dept. 1 i PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY TABLE OF CONTENTS INTRODUCTION .....ceeecesecseseeseseseesescsnenesesscacsnssssseueneaesucssseensaesesasansucacssensaeeucaceseneneeneaeee 1 COUNSEL’S FEE AWARD IS PROPERLY CALCULATED AS A PERCENTAGE OF THE FUND... cessesseseseeseseesescseencenssscanescansnsnsaceneacansesaeereneaneneaeere 1 A. The Common Fund Doctrine ......0.ccccccescessessesees ees eeseeseeseeseesessessessesneseesssaneneeenaees 2 B. All Of The Factors Regarding Fee Requests Support The Requested AWAIE oo eeescecees ees eeseeseeseeseeseesesseseesesseseesseseessestssssesseesesseeseeseesesseeessssesseseesesseeneeneaes 3 Le she vResulistACWICVCCs ties c , 2. Risks of Litigation... eeesecsesesessesesteseensssseseeaeensecaeenessacsesacenensacerencerenes 5 3 The Skill Required and the Quality Of Work... ceseseesseeeeeseeeeeeeeeeee 6 4. The Contingent Nature of the Fee and the Financial Burden .................. 6 5 Awards in Similar Cases ........c.cscssesescessessescessesteseenesssssesesseesessesseesesseeness 8 Cc. Plaintiff's Request For Attorney’s Fees Is Reasonable By A Lodestar Cross-Check........csccsessesseeseesenee Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S 1. Class Counsels’ Hourly Rates Have Previously Been Approved..............9 a @lass\Counselys|leodestat street erences 9 3. Multiplier Is Appropriate ...........ceeeseeseseeeeseseeseeeeeeseseeneecseseneeneaseneensenees 11 Dz. Class Counsel’s Costs Were Reasonably Incurred. .............:ccsesseseseesesesteseeeeseeee 12 Be The Class Representatives Should Receive the Requested Service Award......... 12 TIT, = CONCLUSION .......eescesssesseesseessessseestesseesseeseassessessesneeseaseessesscsussaseaseessecsneeneeaseessesseesnes 13 ii PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S TABLE OF AUTHORITIES Federal Cases Boeing Co. v. Van Gemert (1980) 444 U.S. 472. eecescseecscescsescecscesseseseecscssscsesescscesecsescecscseensscecseeseensseeseenseeeseeseenseeereee 4 Brotherton v. Cleveland, (S.D. Ohio 2001) 141 F.Supp.2d 907 ...sssccccsssssssssssssssssssesssssssssssesssssssssssesssssssssssessesessssseeeee 13 Central Railroad & Banking Co. of Ga. v. Pettus, MSGS UG CCS Siete ce 3 Cook v. Niedert, (7th Cir. 1998) 142 F.3d 1004 oo ceeeeeseseseessesesesesescsesssescsesssssssssssessssssseassesssesssesseeteee LF Enter Energy Corp. v. Columbia Gas Transmission Corp. (CS: Ohio wOO els 7sR AR D240 eee Florin v. Nations Bank of Georgia, (9th Cir. 1994) 34 F.3d 560 oo. ceccseceseesesessesesesssseessessssesesesscsessssesnsassesessesesesaeseescsessseeseeneaeenee 3 Glass vy. UBS Fin. Servs., (N.D. Cal. Jan. 27 2007) 2007 U.S. Dist. LEXIS 8476 ......cecesesssssssssesseseseeessesesesesnesesesssesessesesesassesseseseeeeaesneneaeeecaeeenes 5, 13 In re Bluetooth, (9th Cir. 2011) 654 F.3d 935 oo. eeeeceeeeeeseeteeeee ee Inre Dun & Bradstreet Credit Servs. Customer Litig. (S.D. Ohio 1990) 130 F.R.D. 366... ecesessesesesesesesesesesesesesesesescsessarssecscsesssessseassesssesssessseeeee LO In re Heritage Bond Litig., (C.D. Cal. June 10, 2005) USS. Dist. LEXIS 13627 o.eeecececssecsesecessesesseseseseseenesssesneseseeneaesesssnsueaeseencensucassnsncasseeasensnenssneneaes 4 In re Immune Response Sec. Litig. (S.D. Cal. 2007) 497 F.Supp.2d 1166... In re Omnivision Technologies, (N.D. Cal. 2007) 2007 WL 4293467 ......eeesssssssessssssesessessescseseesenesesnsseeseaeseeneaeereneneeneaeereneneenees 4,4 In re Rite Aid Corp. Secs. Litig. (3d Cir. 2005) 396 F.3d 294 ooo. eeeecccecssseceesesessesesessesessesesessesesessesesnesesesaesnsecsesesssassesassesecassessceesseee In re Warner Communications Sec. Lit. CSEDEING YE VOSS)OVS SUD: 155 In re Washington Pub.Power aaa a Sec. a (1994) 19 F.3d 1291... ee | Kress v. a E.D. Cal. Case 2:08-cv-00965-TLN-AC, April 19, 2018 ......ceeeecsesseseseesesessseseesesesreneseeneseereee 8 McKittrick v. Gardner, (4th Cir, 1967) 378 F.2d 872 .....eeccecssecseesseessessesssesssessnesseesnesseesecsneeseessesssessesssesseesetsessnessesseesee J iii PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S McLeod v. Bank of America, N.D. Cal. case number 16-cv-03294-EMC. Paul, Johnson, Alston & Hunt v. Gaulty, (9th Cir. 1989) 886 F.2d 268 oo... eee sseeseseesesesesseseesesesessesesnsassesseaesnsacsesseseeeeusesseeneeesusaseeeneees 3,4 Powers v. Eichen, (Oth Cir. 2000) 229 F.3d 1249 .o.ceccecesceseeseeseesesseessssessesseseesessesseesessessessessseesssseesnesnsstsensnssesenese Sarinana v. D.S. Waters of America, N.D. Cal. Case 3:13-cv-00905 EMC, February 12, 2015.......eeseesessessesssseseeeseseeneeeeenssneneesenene a Van Vranken vy. Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294 v.cccssssssssssssssssssssessessssesssssssssssssssssssesssesssssesssssesssessssssssssesesess 13 Vincent v. Hughes Air West (9th Cir. 1977) 557 F.2d 759 . State Cases Aldo U.S. Wage & Hour Cases, Orange County Superior Court, JCCP No. 4581, October 24, 2012 .....c.ccceesseessesecssseeseseseeee F Brinkel v. Westamerica Bank, Marin County Sup. Ct. Case number CIV 1303112... csceessesessssssessesessesesessscsessesesssscssescsseeeee Duran et al. v. U.S. Bank, N.A. (2014) 59 Cab 4th Loosccccsccccssssssssssesssssssssseesssssssssesnssssossesseesassssessseunsesesrssesecessasssessesnsasssseseseen Harris v. CUSO Financial Services, San Diego County Superior Court Case 37-2015-4960-CU-OE-CTL, September 21, 2017...... g In re Ret. Cases, 2003 WL 22506555, (Cal. Ct. App. Nov. 4, 2003) .......ccssscesssesesesseseseeeseseessesssesssseeeesseseseeeeeee Ll Laffitte v. Robert Half Intern, (2016) 1 Cal Sth 480, 503... eecessesssessssssessnseseessecsssseesssesecsssessessecssessnsssssnessessseesseesesssesseseseeseee q Lee v. Activision Blizzard, Los Angeles County Superior Court Case BC 575664, June 14, 2017 ......ceceeceesseseseeeeseeseseeeeee Lowe v. Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Alameda Sup. Ct. Case number RG 18906865 0.0... sscesssseeeseseeesrestereseeeeeeneereenteteseerseeneeteneaee I Paparella v. JPMorgan Chase Bank, Orange County Superior Court Case 30-2010-370146, August 15, 2014... eseseeeeeseseseeeee g Puchatlski et al. v. Taco Bell Corp., (San Diego County Superior Court Case GIC 870429).. Sav-On v. Superior Court, (2004) 34 Cal 4th 319... eecccecsesssssessssessessesseeseesesseessssssssssssessessecssessenesssesssessecsesseesseseesseasensseseess® q Serrano vy. Priest, (1977) 20 Cal.3d 25 w.oceccesecsssseesecsessesssssseessssessessesseesssessssssseesesseesessessesseessssssecsrsseessesesatessenssecaness q iv PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S Walsh vy. Overton, Alameda County Superior Court Case RG 13679913, May 8, 2015.0... essessessseseeeseenessseeneeeeneee g Wershba v. Apple Computer, (2001) 91 Cal. App.4th 224 wc sccscseesseseesnesesseesesessessssnesesseseeseeseeseesessessasseseesesnenneenaee 1] Statutes, Rules & Regulations A. Conte, Attorney Fee Awards, PT eee eee eee ee Br4 Newberg, Newberg on Class Actions, 3rd Ed., § 14.03 ...ccccccscssessesessesseseessesseseeseesessesseesessessessesesnsseescssnsenssssessssessesseeseeseesssesseesneseeses 8 R. Pearle, California Attorney Fee Awards (CEB) § 7.4 ...c.ssssssssssssessesessessssssesessssesessesesseseseseeseeees 4 v PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S I. INTRODUCTION After over two years of litigation, Class Counsel successfully negotiated a Settlement with Defendant Sage Intacct, Inc., which provides for a $1,100,000 common fund for the payment and administration of claims of the Class Members, the payment of attorney’s fees and costs, and Plaintiff's service award. Class Counsel is seeking attorney’s fees of 33.3% of the common fund as the class was notified in the Notice of Class Action Settlement. Preliminary approval of the Class Settlement was granted on August 8, 2020 and notice of the Settlement was mailed to the Class Members. Not one Class Member has objected to the requested fee award or requested service awards. The requested fee falls within the Ninth Circuit’s benchmark of 25% to 40% of a common fund and is fair compensation for undertaking such complex, risky and time-consuming litigation on a contingent basis. Since the attorneys’ fees requested are well within the range of reasonableness and the results achieved for the Class Members are excellent, Plaintiff respectfully requests that the Court award the requested fees in the amount of 33% or $366,666. Plaintiff also respectfully requests that the Court order payment of a class representative service award of $7,500 to Plaintiff and Counsel’s costs in an amount of $13,389. II. COUNSEL’S FEE AWARD IS PROPERLY CALCULATED AS A PERCENTAGE OF THE FUND Class Counsel seeks a fee award for his successful prosecution and resolution of this action, calculated as 33% of the common fund created by the Settlement. As stated by the California Supreme Court: [U]se of the percentage method to calculate a fee in a common fund case, where the award serves to spread the attorney fee among all the beneficiaries of the fund, does not in itself constitute an abuse of discretion. We join the overwhelming majority of federal and state courts in holding that when class action litigation establishes a monetary fund for the benefit of the class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created. The recognized advantages of the percentage method—including relative ease of calculation, alignment of incentives between counsel and the class, a better approximation of market conditions in a contingency case, and the encouragement it provides counsel to seek an early settlement and avoid 1 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S unnecessarily prolonging the litigation (Citation) convince us the percentage method is a valuable tool that should not be denied our trial courts. Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 503. Prior California decisions and federal courts have long recognized that an appropriate method for determining the award of attorneys’ fees is based on a percentage of the total value of benefits afforded to class members by the settlement. Serrano v. Priest (1977) 20 Cal.3d 25, 34 (“Serrano IIT”); Boeing Co. v. Van Gemert (1980) 444 U.S. 472, 478; see also Vincent v. Hughes Air West, Inc. (9th Cir. 1977) 557 F.2d 759, 769. The awarding of a fee based on a percentage of the common fund recovered is to “spread litigation costs proportionately among all the beneficiaries so that the active beneficiary does not bear the entire burden alone.” Vincent v. Hughes Air West, Inc., supra, 557 F.2d at 769. The total settlement fund is $1,100,000. Class Counsel is requesting a total fee award of 33% or $366,666. A. The Common Fund Doctrine The Common Fund Doctrine is predicated on the principle of preventing unjust enrichment. It provides that when a litigant’s efforts create or preserve a fund from which others derive benefits, the litigant may require the passive beneficiaries to compensate those who created the fund. Both state and federal courts in California have embraced this doctrine. Serrano v. Priest (Serrano III), supra, at 35; Cramptom v. Takegoshi (1993) 17 Cal.App.4th 308, 317; Vincent v. Hughes Air West, Inc., supra, at 769. The Common Fund Doctrine is the oldest exception to the American rule, which prohibits fee shifting, that is, awarding attorneys’ fees to the winning party from the losing party without statutory or contractual authorization. The Common Fund exception is grounded in the historic power of equity to permit the trustee of a fund or property (or a party preserving or recovering a fund for the benefit of others, as well as himself or herself) to recover costs, including attorney’s fees. Those costs and fees are paid out of the fund or property itself, or directly from the other parties enjoying the benefit. R. Pearle, California Attorney Fee Awards (CEB) § 7.4, at 7-5. In the present case, a common fund has been created and the requisites supporting payment of fees by the beneficiaries of that fund are satisfied. Under this doctrine, courts have 2 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S recognized that class litigation is necessary to protect the rights of individuals whose injuries are too small to economically justify individual representation. In Paul, Johnson, Alston & Hunt v. Gaulty (9th Cir. 1989) 886 F.2d 268, 271, the Ninth Circuit embraced this principle when it stated: Since the Supreme Court’s 1885 decision in Central Railroad & Banking Co. of Ga. v. Pettus, 113 U.S. 116 (1885), it is well settled that the lawyer who creates a common fund is allowed an extra reward, beyond that which he has arranged with his client, so that he might share the wealth of those upon whom he has conferred a benefit. The amount of such a reward is that which is deemed ‘reasonable’ under the circumstances. Accordingly, in determining a reasonable common fund fee award, courts should properly consider the fact that fees serve as an economic incentive for lawyers to bring class action litigation in order to achieve increased access to the judicial system for meritorious claims and to enhance deterrents to wrongdoing. See, A. Conte, Attorney Fee Awards, 2nd. Ed., § 104, at 6. Without prosecution on a contingent basis and use of the class action mechanism, the courthouse door would effectively be closed to all class members due to the relatively small amount of their individual claims in relation to the enormous time and cost associated with class action litigation. When the Ninth Circuit held that the Common Fund Doctrine was available in ERISA cases, the court echoed the foregoing sentiment: Having determined that risk multipliers remain available in common fund cases after Dague, we further note that we have held, in a pre-Dague case, that a risk multiplier is not merely available in a common fund case but mandated, if the court finds that counsel ‘had no sure source of compensation for their services .. . Moreover, we have observed that the need for such an adjustment is particularly acute in class action suits. The lawyers for the class receive no fee if the suit fails, so their entitlement to fees is inescapably contingent.’ Florin v. Nations Bank of Georgia (9th Cir. 1994) 34 F.3d 560, 564. When this case was originally filed it was “inescapably contingent.” Further, the result was by no means guaranteed. Effective prosecution of this case was founded upon the risky contingent investment of time and expense. B. All of The Factors Regarding Fee Requests Support The Requested Award Fee determinations in both common fund and statutory fee situations are incapable of} 3 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S mathematical precision because of the intangible factors that must be resolved in the court’s discretion based on the circumstances of each particular case. See, A. Conte, Attorney Fee Awards, 2nd Ed., § 207, at 44. In determining an appropriate fee in a common fund case, a court must decide, based on the unique posture of each case, what percentage of the common fund would most reasonably compensate class counsel given the nature of the litigation and the performance of counsel. Paul, Johnson, Alston & Hunt v. Gaulty (9th Cir. 1989) 886 F.2d 268, 272 (the benchmark percentage fee may be adjusted to account for the circumstances involved in this case.) Courts apply a five-part test in calculating a reasonable percentage fee in common fund cases. (1) the results achieved; (2) the risk of litigation; (3) the skill required and the quality of work; (4) the contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made in similar cases. In re Omnivision Technologies, Inc. (N.D. Cal. 2007) 2007 WL 4293467 at *9. Here, each of these five factors strongly supports an award of the percentage fee requested in this case. 1. The Results Achieved “The overall result and benefit to the class from the litigation is the most critical factor in granting a fee award.” Omnivision, 2007 WL 4293467 at *9; See also, Jn re Heritage Bond Litig. (C.D. Cal. June 10, 2005) U.S. Dist. LEXIS 13627, at *27-28. Class Counsel obtained an outstanding result in this case for the Class Members. The Settlement provides monetary benefits to the Class Members that are superior to those recovered in similar overtime wage class actions. (Declaration of Edward J. Wynne in support of Motion for Final Approval, Award of Attorneys’ Fees and Costs and Class Representative Enhancement Awards (“Decl. of Wynne”) at § 24.) The Settlement is particularly advantageous to the Class Member because the proceeds will be distributed shortly as opposed to waiting additional years for a similar, or possibly, less favorable result. There is little question that the result achieved in this litigation is excellent. The absence of any objection to either the settlement or the attorney’s fee request from any of the Class 4 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S Members supports this finding. Most Class Members will receive thousands of dollars as their share of the settlement. Based on preliminary estimated settlement amount calculations, the highest Individual Settlement Payment to be paid is $30,089.63, the lowest is approximately $211.90, and the average is approximately $7,874.54. The average amount per workweek is approximately $98.89. (See Declaration of Elizabeth Kruckenberg in support of Motion for Final Approval (“Decl. of Kruckenberg”) at 11.) In fact, these amounts will increase due to interest being earned on the fund. Additionally, the weekly amount represents approximately two hours of overtime for every week the Class Member held a class position including any weeks where the Class Member may have been absent due to vacation, holiday or sickness. (Decl. of Wynne, §j 19- 20.) The average Class Member’s recovery is a sum that most likely exceeds most Class Member’s expectations and is a significant amount by any measure. The Class Members also received a substantial benefit as the result of the settlement of| this action both in terms of receiving the settlement proceeds much sooner and avoiding the risk of receiving nothing at all. (Decl. of Wynne, § 34.) See Glass v. UBS Fin. Servs. (N.D. Cal. Jan. 27 2007) 2007 U.S. Dist. LEXIS 8476 at *48 (“The early settlement of the instant action resulted in significant benefit to the class.... Class counsel achieved an excellent result for the class members by settling the instant action promptly.”) 2. Risks of Litigation “The risk that further litigation might result in Plaintiffs not recovering at all, particularly a case involving complicated legal issues, is a significant factor in the award of fees.” Omnivision, 2007 WL 4293467 at *9. At the time this case was brought, the result was far from certain. Defendant’s numerous defenses to the case created difficulties with proof and complex legal issues. As enumerated in the Motion for Final Approval, some of the risks included denial of certification, judgment for Defendant at trial, and judgment for Defendant in the Court of Appeal and/or Supreme Court. All of these are very substantial risks, any of which could have resulted in the Class receiving nothing. 3 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S 3. The Skill Required and the Quality of Work As set forth in the Declaration of Edward J. Wynne, Class Counsel has consistently demonstrated the highest standards of professionalism, skill and ability. Class Counsel has tried to judgment the only known misclassification class action in California at both the liability and damages phases under California’s outside sales exemption which ultimately resulted in the opinion Duran et al. v. U.S. Bank, N.A. (2014) 59 Cal.4th 1. The Supreme Court called it “an exceedingly rare beast.” /d. at 12. The case was remanded back to the Superior Court where class certification was denied (and affirmed by the Court of Appeal in a second published opinion) after 17 years of hard-fought litigation. Class Counsel was also counsel in another pillar of the wage & hour litigation, Sav-On v. Superior Court (2004) 34 Cal.4th 319. In addition, Class Counsel tried an executive exemption case through Plaintiffs’ case-in-chief, Puchalski et al. v. Taco Bell Corp. (San Diego County Superior Court Case GIC 870429), in a single phased trial. In addition to these high-profile cases, Counsel has litigated numerous wage & hour class actions over the past 20+ years and is recognized as an expert by his peers. (Decl. of Wynne, §f 2-11.) Class Counsel brought his extensive and unique experience to this case and was able to employ it for the benefit of the class. Class Counsel demonstrated superior skill in focusing discovery and maneuvering the case toward relatively early settlement while avoiding substantial law and motion practice for the benefit of the Class. 4. The Contingent Nature of the Fee and the Financial Burden This case was litigated on a contingent basis with all of the concomitant risk factors inherent in such an uncertain undertaking. (Decl. of Wynne, § 25.) There is a substantial difference between the risk assumed by attorneys being paid by the hour and attorneys working on a contingent fee basis. The attorney being paid by the hour can go to the bank with his fee. Powers y. Eichen (9th Cir. 2000) 229 F.3d 1249, 1256. The attorney working on a contingent basis can only log hours while working without pay towards a result that will hopefully entitle him or her to a market place contingent fee taking into account the risk and other factors of the undertaking. /d. at 1257. Otherwise, the contingent fee attorney receives nothing. Jd. In this 6 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S case, Class Counsel subjected themselves to this contingent fee market risk in this all-or-nothing contingent fee case wherein the necessity and financial burden of private enforcement makes the requested award appropriate. (Decl. of Wynne, {ff 25, 34.) Counsel retained on a contingency fee basis, whether in private matters or in class action litigation, is entitled to a premium beyond his or her standard, hourly, non-contingent fee schedule in order to compensate for both the risks and the delay in payment. The simple fact is that despite the most vigorous and competent of efforts, success is never guaranteed. McKittrick v. Gardner (4th Cir. 1967) 378 F.2d 872, 875. Indeed, if counsel is not adequately compensated for the risks inherent in difficult class actions, competent attorneys will be discouraged from prosecuting similar cases. Steiner v. BOC Financial Corp. (S.D.N.Y. October 10, 1980) 1980 U.S. Dist. LEXIS 14561 at *6 -*7. Here, the contingent nature of the fee award, both from the point of view of eventual settlement and the point of view of establishing eligibility for an award, also warrant the requested fee award. A number of difficult issues, the adverse resolution of any one of which could have doomed the successful prosecution of the action, were present here. Attorney’s fees in this case were not only contingent but extremely risky, with a very real chance that Class Counsel would receive nothing at all for his efforts after having devoted significant time and advancing costs. (Decl. of Wynne, § 34.) In addition to Counsels’ time, Counsel also bore the financial burden of advancing all costs. Especially in this type of litigation where the corporate defendants and their attorneys are well-funded, this can prove to be very expensive and risky. Because the risk of advancing costs in this type of litigation can be significant, it is therefore cost prohibitive to many attorneys. (Decl. of Wynne, §{ 35-36.) Here, the financial burden undertaken by Class Counsel was not insubstantial by the time settlement was reached. Of course, the costs would have increased exponentially as the action progressed if no settlement had been reached. Class Counsel advanced a total of $13,389 in costs which could not have been recovered if this case had been lost. (See “Summary of Costs” attached as Exhibit 2 to the Declaration of Edward. J. Wynne.) 7 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S 5. Awards in Similar Cases The attorney’s fees requested by Class Counsel are within the range of fees awarded in comparable cases. A review of class action settlements shows that the courts have historically awarded fees in the range of 20% to 50% depending upon the circumstances of the case. Class Counsel’s requested fees are one-third of the fund, a percentage well within the range of| reasonableness given the excellent results obtained for the Class, the risks undertaken, and the skill of the prosecution. In Jn re Warner Communications Sec. Lit. (S.D. N.Y. 1985) 618 F.Supp. 735, 749-50, the court concluded that percentage fees in common fund cases range from 20% to 50%. Professor Newberg is in accord: No general rule can be articulated on what is a reasonable percentage of a common fund. Usually 50% of the fund is the upper limit on a reasonable fee award from a common fund in order to assure that the fees do not consume a disproportionate part of the recovery obtained for the class, although somewhat larger percentages are not unprecedented. Newberg, Newberg on Class Actions, 3rd Ed., § 14.03, at 14-13. Some of the class action awards obtained by Class Counsel herein from courts around the state support the reasonableness of a fee award requested here: © Kress v. PriceWaterhouseCoopers, E.D. Cal. Case 2:08-cv-00965-TLN-AC, April 19, 2018, Hon. Troy Nunley (33% fee awarded to Wynne Law Firm). © Harris v. CUSO Financial Services, Inc., San Diego County Superior Court Case 37-2015-4960-CU-OE-CTL, September 21, 2017, Hon Richard E. L. Strauss (33% fee awarded to Wynne Law Firm). @ Lee v. Activision Blizzard, Inc., Los Angeles County Superior Court Case BC 575664, June 14, 2017, Hon. Maren E. Nelson (33% fee awarded to Wynne Law Firm). e Walsh v. Overton, Alameda County Superior Court Case RG 13679913, May 8, 2015, Hon. Wynne Carvill (33% fee awarded to Wynne Law Firm). e Sarinana v. D.S. Waters of America, Inc., N.D. Cal. Case 3:13-cv-00905 EMC, February 12, 2015, Hon. Edward M. Chen (33% fee awarded to Wynne Law Firm). e Paparella vy. JPMorgan Chase Bank, Orange County Superior Court Case 30- 8 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S 2010-370146, August 15, 2014, Hon. Robert J. Moss (33% awarded to Wynne Law Firm). e Aldo U.S. Wage & Hour Cases, Orange County Superior Court, JCCP No. 4581, October 24, 2012, Hon. Steven L. Perk (33% awarded to Wynne Law Firm). (Decl. of Wynne, § XX.) A fee award of 33.3% of the common fund in this case is reasonable in light of the prevailing fees that have been awarded in other similar cases as set forth above. Furthermore, it is certainly significant that not a single objection has been made to the fee request. Cc. Plaintiff's Request For Attorney’s Fees Is Reasonable By A Lodestar Cross-Check. Plaintiff's fee request is also reasonable based on the lodestar analysis as a final “cross- check on the percentage method.” Jn re Washington Pub.Power Supply Sys. Sec. Litig. (1994) 19 F.3d 1291, 1296-1298. Where the lodestar method is used as a cross-check, it can be performed with a less exhaustive cataloguing and review of counsel’s hours. See In re Rite Aid Corp. Secs. Litig. (3d Cir. 2005) 396 F.3d 294, 306 (‘The lodestar cross-check calculation need entail neither mathematical precision nor bean-counting.”); Jn re Immune Response Sec. Litig. (S.D. Cal. 2007) 497 F.Supp.2d 1166 (“Although counsel have not provided a detailed cataloging of hours spent, the Court finds the information provided to be sufficient for purposes of lodestar cross-check.”). The lodestar method is calculated by multiplying “the number of| hours reasonably expended on the litigation ... by a reasonable hourly rate.” In re Bluetooth, (9th Cir. 2011) 654 F.3d 935, 941. 1. Class Counsels’ Hourly Rates Have Previously Been Approved. In terms of the hourly rate, Class Counsel Edward J. Wynne has been approved, in botl federal and state courts, at the hourly rate of $820. (Decl. of Wynne, {| 33.) In McLeod v. Bank of America, N.D. Cal. case number 16-cv-03294-EMC, on March 19, 2019, Judge Chen approved Counsel’s hourly rate of $820 which was supported with an expert declaration. (Dkt. 79, N.D! Cal. case 16-cv-03294-EMC.) In Brinkel v. Westamerica Bank, Marin County Sup. Ct. Cas¢ number CIV 1303112, on March 22, 2019, Judge Chernus likewise approved Counsel’s hourl rate of $820. Most recently, on July 30, 2020, in Lowe v. Merrill Lynch, Pierce, Fenner & Smith, 9 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S Incorporated, Alameda Sup. Ct. Case number RG 18906865, Judge Winifred Y. Smith approved Counsel’s hourly rate of $820. 2. Class Counsel’s Lodestar Class Counsel has worked on this case for over two years. During this time, Class Counsel’s respective offices invested 648.9 hours in prosecuting this case on behalf of the Class. (Decl. of Wynne, § 26; Decl. of McCormack, § 4.) Class Counsel reasonably expects to incur an additional 20 hours in order to carry out all the terms of the settlement for which they will not seek additional compensation for. (Decl. of Wynne, § 26.) Class Counsel will be spending this time on such activities as: Preparing for and attending the hearing on final approval; conferring with the Settlement Administrator and reviewing its reports; communicating with Plaintiff; communicating with Class Members prior to and after final approval on a variety of issues including, but not limited to, the status of the settlement, status of their claim, explaining the settlement, handling lost checks, and address updates; communicating with defense counsel; resolving disputes; and, generally carrying out the terms and conditions of the settlement. (Decl. of Wynne, §] 26.) As such, Class Counsel’s office will have invested 668.9 hours in prosecuting this case for the benefit of the class. (/d.) Accordingly, Class Counsel’s combined lodestar is currently $342,949 (Decl. of Wynne, 4 27-28; Decl. of McCormack, § 5.) The time spent and the fees incurred were reasonable and necessary for the successful prosecution of this case. (Decl. of Wynne, { 27.) Counsel’s detailed time records were kept contemporaneously. (Decl. of Wynne, § 28.) Due to the length of time this case has been pending and the amount and type of activities that were needed to be performed, not all time was captured in Counsel’s time records. Class Counsel estimates that up to 5% of the firm’s time was not recorded. (Decl. of Wynne, { 30.) A summary of each person’s lodestar is below: 10 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S WYNNE LAW FIRM & MCCORMACK LAW FIRM LODESTAR SUMMARY Hourl: Total Rate” Hours ee Edward J. Wynne $820.00 120.7 $98,974 Bryan McCormick $750.00 219.0 $164,250 George Nemiroff $525.00 27.0 $14,175 Ben Leash (Paralegal) $250.00 220.5 $55,125 Lesley Amberger (Paralegal) $250.00 417 $10,425 628.9 $342,949 (Decl. of Wynne, §] 28; Decl. of McCormick, {] 5.) 3. Multiplier Is Appropriate In common fund cases, courts frequently apply multipliers to the lodestar to reflect the risks involved, the complexity of the litigation, and other relevant factors. See Vizcaino, 290 F.3d at 1051 (courts “routinely enhance[] the lodestar to reflect the risk of non-payment in common fund cases”). Such an enhancement “mirrors the established practice in the private legal market of rewarding attorneys for taking the risk of nonpayment by paying them a premium over their normal hourly rates for winning contingency cases.” Jd. Class Counsel bore a high contingent risk. (Decl. of Wynne, {| 34.) Based on this risk, as well as the other relevant factors, the resulting modest multiplier of 1.07 on the lodestar cross- check is below the range of multipliers that courts regularly approve as fair and reasonable. Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255 (multipliers can range from 2 to 4 or even higher); Jn re Ret. Cases, 2003 WL 22506555, at *8 (Cal. Ct. App. Nov. 4, 2003) (affirming 4.0 multiplier in determining statutory fees); Steiner v. American Broad. Co. (9th Cir. 2007) 248 Fed. Appx. 780, 783 (affirming fee award where the lodestar multiplier was 3.65). Here, the application of a very modest 1.07 multiplier is warranted given the significant results achieved for the Class, the substantial risks of the litigation, and the lack of any objection. Thus, the lodestar cross-check demonstrates that the $366,666 fee is fair and reasonable. (Decl. of Wynne, {J 40-42.) 11 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S D. Class Counsel’s Costs Were Reasonably Incurred. Class Counsel requests a cost award of $13,389. (Decl. of Wynne, {| 35-36, Exh. 2, “Summary of Costs”.) These expenses include the amounts paid for service of process, legal research charges, travel expenses, mediation fees, court fees and delivery charges, all of which are costs normally billed to and paid by the client. These costs were reasonably incurred in the prosecution of this matter. (Decl. of Wynne, § 36, Exh. 2.) E. The Class Representatives Should Receive the Requested Service Award Plaintiff respectfully submits that for his service as the Class Representative, Plaintiff Thompson Ly should be awarded $7,500. Defendant does not oppose this service award. The requested award was disclosed to the Class Members and not one Class Member objected. Here, Plaintiff placed the interests of the class before his own, including, for example, acknowledging his duties as class representative before the action was ever filed. (Decl. of Wynne, {| 37.) Plaintiff also retained experienced counsel and actively participated in the litigation throughout its pendency. (/d.; Declaration of Thompson Ly (“Ly Decl.”), { 4.) Plaintiff is not a plaintiff or party in any other pending similar class action(s). (/d.) Plaintiff assisted in the prosecution of this action by educating Class Counsel about the work performed by the Class Members and Defendant’s policies and procedures. Beyond educating Class Counsel about Defendant’s business, Plaintiff assisted by providing documents from his employment with Defendant which were instrumental in Class Counsel’s understanding of the case. (Decl. of Wynne, { 37; Ly Decl., § 6.) Plaintiff also provided contact information to Class Counsel of putative class members and contacted them to encourage their participation in the action. (/d.) Plaintiff also participated in the action throughout its pendency, including the settlement process. (/d.) Additionally, Plaintiff responded to formal and informal discovery requests. (Decl. of Wynne, § 37.) He also had his deposition taken for a partial day but was not completed and worked with counsel before his deposition to ensure that he was thoroughly prepared. (Decl. of Wynne, § 37; Decl. of Ly, §[ 6.) It is estimated that Plaintiff expended at least 35 hours assisting Counsel during the pendency of this action. (Decl. of Ly, 6). 12 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S In addition to Plaintiff's active participation and assistance in the prosecution of this action, Plaintiff knowingly gave up his right to prosecute his own individual potential claims against Defendant in order to represent the interests of the putative class without any conflict. Plaintiff has agreed to execute a general release of all claims with a Civil Code section 1542 waiver. In doing so, Plaintiff demonstrates his commitment to putting the interests of the class above his own individual interests, including the associated sacrifice of viable individual claims. (Decl. of Wynne, § 38; Decl. of Ly, § 7.) Thus, Class Counsel recommends that the requested. enhancement payment to Plaintiff is fair, adequate and reasonable under these circumstances. (Decl. of Wynne fj 40-42.) The payment of service awards to successful class representatives is appropriate and the amount of $7,500 in total is well within the currently accepted range. See e.g. Van Vranken v. Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294, 299-300 (incentive award of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig. (S.D. Ohio 1990) 130 F.R.D. 366 (two incentive awards of $55,000, and three incentive awards of $35,000); Brotherton v. Cleveland (S.D. Ohio 2001) 141 F.Supp.2d 907, 913-14 (granting a $50,000 service award); Enter Energy Corp. v. Columbia Gas Transmission Corp. (S.D. Ohio 1991) 137 F.R.D. 240 ($50,000 awarded to each class representative). Glass v. UBS Fin. Servs., (N.D. Cal. Jan. 27 2007) 2007 U.S. Dist. LEXIS 8476 at *51-*52 (awarding $25,000 service award in FLSA overtime wages class action); Cook v. Niedert (7th Cir. 1998) 142 F.3d 1004, 1016 (affirming $25,000 service award to class representative in ERISA case). Plaintiff's efforts in bringing the lawsuit have conferred a substantial benefit on all Class Members. Class Counsel respectfully requests that the Court approve the requested service awards. Il. CONCLUSION The representation of the Class provided by Class Counsel has been wholly contingent. Class Counsel’s fee request is well within the realm of reasonableness for fee requests approved by California and federal courts given the efforts expended in this case and the stage of proceedings at the time of the Settlement. Moreover, Class Counsel undertook great risks on a 13 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378SCO mem ND HW BR YW NY Cm ND DA A Rw N beoN NY NY YY NN YD eo IA DWF BN | S contingent fee basis and achieved an outstanding result for the benefit of Class Members. Based on the foregoing, Class Counsel respectfully requests approval of the application for award of attorneys’ fees and costs of one-third of the value of the settlement. It should be noted that Class Counsel will finish the prosecution of this action including the disbursement of funds, final accounting and defense of an appeal, if any, without a subsequent attorney’s fee request. Dated: November 9, 2020 WYNNE LAW FIRM lo Edward J. Wynne Bryan McCormick George R. Nemiroff Attorneys for Plaintiff 14 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AWARD OF ATTORNEYS’ FEES. AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS 18CV334378