IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR PIERCE COUNTY

Transcription

1 E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON August :33 PM The Honorable VICKI L. HOGAN KEVIN STOCK COUNTY CLERK NO: IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR PIERCE COUNTY EDMOND JOHNSTON, Jr., and JESSICA LONERO, individually and as the representatives of all persons similarly situated, v. Plaintiffs, UNITED SERVICES AUTOMOBILE ASSOCIATION ( USAA ), USAA Casualty Insurance Company ( CIC ), USAA General Indemnity Company ( GIC ), and Garrison Property and Casualty Insurance Company ( Garrison )); NO PLAINTIFFS MOTION AWARD OF FEES AND COSTS Hearing Date: October 6, 2016 Defendants. I. INTRODUCTION A. MOTION/RELIEF REQUESTED COME NOW the Plaintiffs/CLASS REPRESENTATIVES, EDMOND JOHNSTON, Jr., and JESSICA LONERO, through Class Counsel, and move the Court for entry of an agreed order which provides for the following relief: OF FEES AND COSTS - 1

2 1) Approves Class Counsel s request for attorney s fees/costs; and 2) Approves payment of incentive fees to the Plaintiffs/Class Representatives. This request is respectfully submitted pursuant to the Superior Court Civil Rule CR 23(e), and to the procedure and criteria for final approval as stated in the Manual for Complex Litigation, Fourth (Federal Judicial Center 2004) (hereinafter the Manual ) as more fully described herein. B. EVIDENCE RELIED UPON 1. Declaration of STEPHEN M. HANSEN. II. RELEVANT FACTUAL AND PROCEDURAL HISTORY On July 15, 2014, EDMOND JOHNSTON, JR. filed a Class Action Complaint in the above entitled matter against Defendant UNITED SERVICES AUTOMOBILE ASSOCIATION ( USAA ) alleging causes of action for 1) breach of contract and 2) violation of RCW (3). Mr. Johnston s Complaint based these causes of action on the Defendants alleged failure to disclose the availability of a Diminished Value ( DV ) recovery as an element of damages of his automobile property damage loss, and to properly and fairly assess his claim for DV and to pay him and Class Members (as hereinafter defined) for the amount that their vehicles value diminished as a result of property damage to their vehicles. Mr. Johnston sought to represent Class Members who had suffered losses and presented claims under the UM/UIM provisions of their insuring agreements. On August 20, 2014, Defendant removed this matter to United States District Court in Case No.3:14-cv Defendant then filed its Motion to Dismiss Mr. Johnston s Complaint on September 5, Mr. Johnston then filed his Motion for Remand to Superior Court on OF FEES AND COSTS - 2

3 September 19, On November 10, 2014, Judge Robert J. Bryan granted Mr. Johnston s remand motion without consideration of USAA s motion to dismiss. USAA then petitioned the Ninth Circuit Court of Appeals for Permission to Appeal the remand. USAA s petition was denied and the case was remanded to Superior Court. In April, 2015, USAA renewed its motion to dismiss. On June 19, 2015, USAA s motion was granted as to the cause of action alleged under RCW (3) (based on Plaintiff s prior stipulation) but otherwise denied. The parties thereafter agreed to a discovery and briefing schedule for class certification. Mr. Johnston amended his Complaint on July 27, 2015 to include additional Plaintiffs. During this time the parties exchanged written discovery requests in the form of Interrogatories and Requests for Production of Documents. This included the exchange of hundreds of documents. USAA deposed Edmund Johnston on June 18, 2015 and Alicia Johnston on June 19, USAA s CR 30(b)(6) representative, Michael Price, was deposed on June 5, Having obtained the information necessary for Class Certification to be filed, Plaintiffs then filed their class certification motion on September 3, The parties thereafter commenced settlement discussions, and agreed to extend the deadlines pertaining to the class certification motion to accommodate these discussion. These discussions culminated with the settlement which was granted preliminary approval May 3, As discussed in the preliminary approval motion, Fees were not discussed, nor negotiated, until other relevant details of the settlement (amounts and structure) were finalized. Notice was sent on July 5, This notice clearly stated the intent of Plaintiffs Counsel to seek a fee and costs of up to 27.5% of the common fund, and further to seek $7, (each) as an inventive payment for both Class Representatives. The deadline for Objections (either to the settlement or the fee and OF FEES AND COSTS - 3

4 cost and/or Class Representative bonus) is September 6, However, while there have been four (4) opt-outs from the settlement, no objections have been received to date. 1 III. PLAINTIFFS REQUEST FOR ATTORNEYS FEES AND COSTS AND AN INCENTIVE AWARD Class Counsel have represented the named Plaintiffs and the interests of the Class throughout this contested litigation, including discovery and motion practice that resulted in the proposed Settlement Agreement, for over two full years. In prosecuting this action Plaintiffs counsel has incurred $13, in hard costs for travel and experts to date. Given the extensiveness of the litigation, the size of the eventual settlement, and the excellent outcome, Plaintiffs Counsel Request and award for fees and costs of 27.5% of the $5,947,200 fund created through their efforts. The request for a fee up to 27.5% the fund was highlighted in the Class notice, and no objections have been received. 2 Class Counsel also request an incentive award for Class Representatives EDMOND JOHNSTON, Jr., and JESSICA LONERO in the amount of $7, each. These amounts are agreed to by the Defendants and they were disclosed and highlighted in the class notice, and no objections have been submitted by any Class Member. A. The Fee Should Be Approved As Reasonable Under the Common Fund Doctrine. According to the American Rule, reaffirmed by the United States Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Soc y, 421 U.S. 240, 273 (1975), attorneys fees 1 The Class included 7,434 claims. Plaintiffs will provide figures on current claims rate with their final approval motion. 2 The request is for a total of $1,635,480, of which $13, is costs and $1,621, is a fee. The actual fee percentage requested is therefore 27.26%. OF FEES AND COSTS - 4

5 cannot be awarded in the absence of a statute or contract. However, the common fund exception to the American Rule permits class counsel and representatives to be compensated for their efforts that create a common fund for the benefit a class of litigants. Common fund cases are predominantly, but not exclusively, class actions. See Manual, at The Common Fund Exception to the American Rule The Court has equitable powers to award fees and costs in a common fund case. The common fund exception rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant s expense. Boeing Co. v. Van Gernert, 444 U.S. 472, 478 (1980). Since the decisions in Trustees v. Greenough, 105 U.S. 527, 537 (1881), and Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 124 (1885), courts have recognized that a litigant or a lawyer whose efforts create a common fund for the benefit of persons other than himself or his client is entitled to reasonable attorneys fees and expenses from the fund as a whole. Boeing, 444 U.S. at 478; Mills v. Electric Auto-lite Co., 396 U.S. 375, 395 (1970); Sprague v. Ticonic Nat l Bank, 307 U.S. 161, 167 (1939); Hall v. Cole, 412 U.S. 1, 13 (1973); Camden I Condo. Ass n v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991). We take as a starting point the settled principle that passive members of a class who accepted the fruits of the labors of others are obligated to contribute to the attorney for the active members who created the fund. Lindy Bros. Builders v. Am. Radiator and Standard Sanitary Corp., 540 F.2d 102, 119 (3d Cir. 1976); Cent. R.R. & Banking, 113 U.S. at 127. Absent extraordinary circumstances, the unrepresented claimants should pay for the attorneys services in proportion to their benefit from them that is, the unrepresented claimants should pay a percentage of the reasonable value of the attorneys services to the class equal to their OF FEES AND COSTS - 5

6 percentage of the class s recovery. Lindy Bros. Builders, Inc., v. Am. Radiator & Standard Sanitary Corp., 487 F. 2d 161, 169 (3d Cir. 1973) (Lindy I). The equitable powers of the courts over the fund created by the litigation allows a court to prevent inequity by assessing attorneys fees against the entire fund, thus spreading fees proportionately among those benefited by the suit. Boeing, 444 U.S. at 478; Mills, 396 U.S. at The Common Fund Exception in Washington In Bowles v. Dep t. of Ret. Sys., 121 Wn.2d 52, 847 P.2d 440 (1993), the Washington Supreme Court held that, where attorneys create a common fund, they are entitled to collect attorneys fees from that fund. Id. at 72. In recognizing this equitable theory for the award of attorneys fees, the court stated: We note in passing that this holding also furthers important policy interests. When attorney fees are available to prevailing class action plaintiffs, plaintiffs will have less difficulty obtaining counsel and greater access to the judicial system. Little good comes from a system where justice is available only to those who can afford its price. Id at 71. After recognizing the equitable common fund theory, the Bowles court provided the methodology by which attorneys fees are to be calculated in Washington. Specifically, the Court adopted the percentage of recovery approach. Id. at The Court explained that under this approach, [t]he attorneys are to be compensated according to the size of the judgment recovered, not the actual hours expended. Id. The rationale for applying the percentage method is explained in the Manual for Complex Litigation as follows: Indeed, one purpose of the percentage method is to encourage early settlements 3 While Plaintiffs counsel has time records of the hours they have worked, a fee is not being sought under a lodestar approach, as a statutory fee is not at issue in this case. OF FEES AND COSTS - 6

7 by not penalizing efficient counsel, thus insuring that competent counsel continues to be willing to undertake risky, complex, and novel litigation. Generally, the factor given the greatest emphasis is the size of the fund created, because a common fund is itself the measure of success and represents the benchmark from which a reasonable fee will be awarded. See Manual, at 193; see also Bowles, 122 Wn.2d 72 ( In common fund cases, the size of the recovery constitutes a suitable measure of the attorneys performance. ). Here, the size of the common fund ($5,947,200) compared to the number of Class Members is excellent, resulting in an average recovery of $ per class member. This is particularly true when compared to the more modest pre-class certification and post-class certification settlements obtained in prior diminished value cases, and that USAA agreed to add entities which were not sued into the settlement, allowing a single resolution saving the parties and the Court s time. 4 Moreover, the distribution formula and the fact that Class Members who lack information on their vehicle s previous accident history can still receive compensation is an excellent measure of Class Counsel s success and speaks volumes about Class Counsel s performance, as does Class Counsel s negotiation of a more simple claims form with only three questions than was used in recent settlements such as Merrill v. PEMCO and Moeller v. Farmers. The advantage of using the percentage of recovery method is also addressed in the wellrecognized class action treatise, Newberg on Class Actions. There, the author points out that under the percentage of recovery method, the more the attorney succeeds in recovering money for the client, with the fewest number of legal hours expended to reach that result, the higher 4 The settlement in Busani v. USAA was based on $309 per actual class member. That was then the template for subsequent settlements, including Rose and Laughlin, before Moeller vs. Farmers. Mansker was a recovery of $6.1M for 8965 class members or $680.42/class member. OF FEES AND COSTS - 7

8 the dollar amount of fees the lawyer earns. Thus, [o]ne of the primary advantages of the POR [percentage of recovery] method is that it is thought to equate the interests of class counsel with those of the class members and encourage class counsel to prosecute the case in an efficient manner. Herbert B. Newberg & Alba Conte, 4 Newberg on Class Actions s 14:06, at (4th ed. 2002). Here, Class Counsel expended a significant amount of time and effort on this case, while also working to prevent unnecessary and expensive discovery. Additionally, the Stipulation of Settlement balances the Class s interest in receiving an immediate cash payment with Class Counsel s interest in receiving a fee for their efforts in creating a common fund. Finally, after adopting the percentage of recovery approach, the Washington Supreme Court established the benchmark of 25% of the common fund as a reasonable fee. Bowles, 122 Wn.2d at Ninth Circuit authority in Washington cases has provided a typical range or benchmark of between 20 to 40%. See, e.g., In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.2d 1291, 1297 (9th Cir. 1994). When, as here the results are particularly outstanding, the typical fee is higher. 5 See, e.g., In re Pac. Enters. Secs. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (affirming an award equal to 33% of the common fund); In re Activision Secs. Litig., 723 F. Supp. 1373, 1379 (N.D. Cal. 1989) (awarding 32.8%); In re Ampicillin Antitrust Litig., 526 F. Supp. 494, 500 (D.D.C. 1981) (awarding 45% of $7.3 million settlement fund); Beech Cinema, Inc. v. Twentieth- Century Fox Film Corp., 480 F. Supp (S.D.N.Y 1979) aff d 622 F.2d 1106 (2d Cir. 5 The fee approved by this Court in Busani v. USAA was 30% of the fund to cover both fees and costs. The fees approved in Meyer v. AmFam by Judge Leighton, in Merrill v. PEMCO by Judge Culpepper, and by this Court in Moeller v. Farmers were all at 30%. As such, the fee requested in this matter 27.26% is lower than in prior recent cases. OF FEES AND COSTS - 8

9 1980) (awarding approximately 53% of settlement fund); Van Gemert v. Boeing Co., 516 F. Supp. 412, 420 (S.D.N.Y. 1981) (awarding 36% of settlement fund); Dennings v. Clearwire Corp., No. C JLR, 2013 U.S. Dist. LEXIS (W.D. Wash. May 3, 2013) (granting request for 35.78% fee). B. The Requested Fee of 27.26% Is Reasonable Given the Result and the Work Undertaken by Counsel. The decision of what percentage to award in attorneys fees in common fund cases is committed to the sound discretion of the trial court. In exercising this discretion, courts have recognized several factors that may assist in determining whether the fee requested is reasonable. Analysis of these factors, in light of the Supreme Court s holding in Bowles, provides further support that an award of 27.26% is reasonable given the excellent result in this case for the Class. The factors to consider include: (i) the size of the fund and the number of persons who actually received monetary benefits; (ii) the skill and efficiency of the attorneys involved; (iii) the complexity and duration of the litigation; (iv) the risks of the non-recovery and non-payment; and (v) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel. See Manual, 14:121 at The Size of the Settlement Created and the Number of Persons Benefited The common fund created by the Stipulation of Settlement is substantial and results in a meaningful cash award to each of the Class Members who submit a valid Claim Form. The settlement fund of $5,947,200 is an average payout of $800 per claim, with the number being substantially higher given the settlement formula for those with more severely damaged vehicles. This sum is made available via a simple claims process. The size of the Class and the amount of the common fund and the large payments for each Class member secured by Class OF FEES AND COSTS - 9

10 Counsel support Class Counsel s application for fees and costs. The Skill and Efficiency of the Attorneys Involved Through overseeing this case, and in the prior Pierce County diminished value cases, this Court and Judges of the Court have enjoyed direct experience with Class Counsel by which it can evaluate the skill and efficiency of the attorneys involved. Class Counsel s skill and efficiency in litigating the diminished value claims in this case are beyond question and support the requested fee award. It is noteworthy that the excellent result was obtained with reasonable costs, and that resolution came after Plaintiffs Counsel has laid out what they believe the results show was a compelling case for Class Certification, and that motion was pending. 2. The Complexity and Duration of the Litigation In hard fought and arm s-length settlement discussions, Class Counsel were able to draw upon not only their hard work in this case, but also their success in other diminished value litigation against other insurance carriers. The settlement only came after months of litigation, and with a Class Certification motion pending. Thus, this factor strongly supports the requested award of fees and costs. 3. The Risk of Non-Payment Class Counsel are well aware of the risk of non-payment in contingent fee cases. Moreover, as this Court well knows, Class Counsel have been involved in numerous other diminished value cases that, for various reasons, were either dismissed or not certified. In these cases, Class Counsel received no payment for their services and lost all the money they spent on expenses. Despite these risks, and prior failures, Class Counsel invested large amounts of financial resources and time to litigate this matter. Plaintiffs counsel fought for the recovery obtained for this Class, even though, as with all litigation, the end result was far from certain. OF FEES AND COSTS - 10

11 As the Ninth Circuit has observed [c]ontingent fees that may far exceed the market value of the services if rendered on a non-contingent basis are accepted in the legal profession as a legitimate way of assuring competent representation for plaintiffs who could not afford to pay on an hourly basis regardless whether they win or lose. In re Wash. Pub. Power Supply Sys. Secs. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). 4. The Presence or Absence of Substantial Objections As set forth above, there have been no objections to date to the proposed settlement or fees by Class Members. Through the Individual Notice, Class Members were specifically advised that Class Counsel intended to request an award of attorneys fees up to 27.5% of the common fund, plus their costs. Through the date of this filing, not one Class Member has objected. This strongly supports the award of the requested fee, which is well within the benchmark in common fund cases, and is conservative given the actual results obtained and the extensiveness of the proceedings. In this matter, the Court s judgement is aided by the fees given in similar cases. Prior diminished value cases, than this case resulted in awards of 30% (Busani v. USAA) and 29% (Laughlin v. Allstate). Notably, each of these cases resulted in recoveries of less than $309/claim, the recovery in Busani. The hard costs to date in this matter total $13, These include travel and expert costs, as well as deposition transcript costs, expert costs, and the original filing costs. It is anticipated that another several thousand dollars in costs will be incurred by the date of final approval, costs which will slightly reduce the percentage fee the Class Counsel requests since this request is for an award of 27.5% for costs and fees. These necessary costs were incurred in this matter, and as disclosed in the notice, should be awarded. OF FEES AND COSTS - 11

12 C. Incentive Awards to Class Representatives are Proper The Stipulation of Settlement provides that Defendants will pay each class representative $7,500.00, and the notice informed Class Members of this request. Notice at p.4 No objection has been received to date, and Class Counsel respectfully request that the Court approve this modest incentive payment for the class representatives. The granting of an incentive award to a class representative lies within the Court s sound discretion. See, e.g., In re Mego Fin. Corp. Secs. Litig., 213 F.3d 454, 463 (9th Cir. 2000). The size of an incentive award depends on several factors, including the amount of risks to the class representative, both financial and otherwise, in becoming and continuing as a litigant; the time and effort expended by the representative in assisting in the prosecution of the litigation or in bringing to bear added value; and any other burden sustained by the representative in lending himself to prosecute an ultimate recovery of those claims. See, e.g., Roberts v. Texaco, Inc., 979 F. Supp. 185, 199 (S.D.N.Y. 1997); In re Catfish Antitrust Litig., 939 F. Supp. 493 (N.D. Miss. 1996); Spicer v. Chicago Bd. Options Exch. Inc., 844 F. Supp. 1226, 1266 (N.D. Ill. 1993). Here, each class representative was an active participant in the prosecution of the settled case, subjected themselves to discovery, and were active in the litigation. They made themselves available to Class Counsel, answered discovery requests, provided documents and participated in arbitration. Given the commitment of time and attention to this litigation, the requested incentive award is well within the range of incentive awards that have been granted in other, similar cases. In accordance with the holding of the Washington Supreme Court in Bowles, this Court should approve Class Counsel s request for an award of 27.5% for their combined attorneys OF FEES AND COSTS - 12

13 fees and hard costs. The court should further grant incentive awards of $7, (each) to Sgt. Johnston and to Ms. Lonero. Through the Individual Notice, Class Members were made aware that Class Counsel would seek approval of their costs. There being no objections by Class Members to date, the amounts requested should be approved. The proposed Settlement provides hard-won and substantial relief to the Class as a whole and is particularly impressive when viewed in light of the uncertainty of results, high costs, and prolonged proceedings if litigation were to continue. By all relevant measures, the proposed Settlement is fair, adequate and reasonable and is deserving of final approval. Additionally, the Notice Program authorized by this Court and carried out by the Parties satisfies the due process rights of all Class Members. Further, the Class Counsel s request for attorneys fees, costs, and an incentive award for the Class Representative is reasonable and has been agreed to by the Parties For all of the foregoing reasons, Class Counsel, on behalf of the Plaintiff and Class Members, respectfully request the Court: 1. Grant Class Counsel an award of attorneys fees in the amount of $1,635,580 for their attorney s fees and costs; and 2. Award Sgt. Johnston and Ms. Lonero incentive payments in the amount of $7, each. IV. CONCLUSION For all of the foregoing reasons, Sgt. Johnston, Ms. Lonero, and Class Counsel respectfully request that the Court GRANT the proposed fee, cost, and class representitive award request. OF FEES AND COSTS - 13

14 RESPECTFULLY SUBMITTED this 19 th day of August, STEPHEN M. HANSEN, PS STEPHEN M. HANSEN, WSBA #15642 Class Co-Counsel Scott P. Nealey LAW OFFICE OF SCOTT P. NEALEY Law Office of Scott P. Nealey 71 Stevenson Street, Suite 400 San Francisco, California Telephone: (415) Facsimile: (415) CERTIFICATE OF SERVICE The undersigned certifies, under penalty of perjury under the laws of the State of Washington, that on the 19 th day of August, 2016, I [ X] ed [ ] mailed via regular U.S. mail [ ] faxed [ ] delivered by legal messenger a true and correct copy of this document to: Michael A. Moore David Edwards Corr Cronin Michelson Baumgardner & Preece LLP 1001 Fourth Avenue, Suite 3900 Seattle WA mmoore@corrcronin.com dedwards@corrcronin.com mbdahl@corrcronin.com Lawrence H. Heftman Jay Williams Dede Kokolis Schiff Hardin LLP 233 S Wacker Dr, Ste 6600 Chicago IL lheftman@schiffhardin.com jwilliams@schiffhardin.com dkokolis@schiffhardin.com DATED this 19 th day of August, 2016, at Tacoma, Washington. SARA B. WALKER, Legal Assistant to STEPHEN M. HANSEN OF FEES AND COSTS - 14

15 E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON August :33 PM 1 2 KEVIN STOCK The Honorable VICKI HOGAN COUNTY CLERK NO: IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON EDMOND JOHNSTON, Jr., and JESSICA LONERO individually and as the representatives of all persons similarly situated, Plaintiffs, v. UNITED SERVICES AUTOMOBILE ASSOCIATION ( USAA ), USAA Casualty Insurance Company ( CIC ), USAA General Indemnity Company ( GIC ), and Garrison Property and Casualty Insurance Company ( Garrison )); Defendants. IN AND FOR THE COUNTY OF PIERCE Case No DECLARATION OF STEPHEN M. HANSEN ISO PLAINTIFF S MOTION FOR APPROVAL OF ATTORNEY S FEES & COSTS I, STEPHEN M. HANSEN, declare under penalty of perjury as follows: 1. I am one of the attorneys of record for the Plaintiffs in this matter. This declaration is submitted in support of Plaintiffs Motion for of approval of attorney s fees and costs. 2. On July 15, 2014, EDMOND JOHNSTON, JR. filed a Class Action Complaint in the above entitled matter against Defendant UNITED SERVICES AUTOMOBILE ASSOCIATION ( USAA ) alleging causes of action for 1) 27 DECLARATION OF STEPHEN M. HANSEN ISO PLAINTIFF S MOTION FOR APPROVAL OF ATTORNEY S FEES & COSTS - 1 LAW OFFICES OF STEPHEN M. HANSEN PS 1821 DOCK STREET, UNIT 103 TACOMA, WA (253) (253) FAX

16 breach of contract and 2) violation of RCW (3). Mr. Johnston s Complaint based these causes of action on the Defendants alleged failure to disclose the availability of a Diminished Value ( DV ) recovery as an element of damages of his automobile property damage loss, and to properly and fairly assess his claim for DV and to pay him and Class Members (as hereinafter defined) for the amount that their vehicles value diminished as a result of property damage to their vehicles. Mr. Johnston sought to represent Class Members who had suffered losses and presented claims under the UM/UIM provisions of their insuring agreements. 3. On August 20, 2014, Defendant removed this matter to United States District Court in Case No.3:14-cv Defendant then filed its Motion to Dismiss Mr. Johnston s Complaint on September 5, Mr. Johnston then filed his Motion for Remand to Superior Court on September 19, On November 10, 2014, Judge Robert J. Bryan granted Mr. Johnston s remand motion without consideration of USAA s motion to dismiss. USAA then petitioned the Ninth Circuit Court of Appeals for Permission to Appeal the remand. USAA s petition was denied and the case was remanded to Superior Court. 4. In April, 2015, USAA renewed its motion to dismiss. On June 19, 2015, USAA s motion was granted as to the cause of action alleged under RCW (3) (based on Plaintiff s prior stipulation) but otherwise denied. The parties thereafter agreed to a discovery and briefing schedule for class certification. Mr. Johnston amended his Complaint on July 27, 2015 to include additional Plaintiffs. During this time the parties exchanged written discovery requests in the form of 27 DECLARATION OF STEPHEN M. HANSEN ISO PLAINTIFF S MOTION FOR APPROVAL OF ATTORNEY S FEES & COSTS - 2 LAW OFFICES OF STEPHEN M. HANSEN PS 1821 DOCK STREET, UNIT 103 TACOMA, WA (253) (253) FAX

17 Interrogatories and Requests for Production of Documents. This included the exchange of hundreds of documents. USAA deposed Edmund Johnston on June 18, 2015 and Alicia Johnston on June 19, USAA s CR 30(b)(6) representative, Michael Price, was deposed on June 5, Having obtained the information necessary for Class Certification to be filed, Plaintiffs then filed their class certification motion on September 3, The parties thereafter commenced settlement discussions, and agreed to extend the deadlines pertaining to the class certification motion to accommodate these discussion. These discussions culminated with the settlement which was granted preliminary approval May 3, As discussed in the preliminary approval motion, Fees were not discussed, nor negotiated, until other relevant details of the settlement (amounts and structure) were finalized. Notice was sent on July 5, This notice clearly stated the intent of Plaintiffs Counsel to seek a fee and costs of up to 27.5% of the common fund, and further to seek $7, (each) as an inventive payment for both Class Representatives. The deadline for Objections (either to the settlement or the fee and cost and/or Class Representative bonus) is September 6, However, while there have been four (4) opt-outs from the settlement, no objections have been received to date In prosecuting this action Plaintiffs counsel has incurred $13, in hard costs for travel, expert witness fees, court reporter and deposition transcript fees, filing The Class included 7,434 claims. Plaintiffs will provide figures on current claims rate with their final approval motion. DECLARATION OF STEPHEN M. HANSEN ISO PLAINTIFF S MOTION FOR APPROVAL OF ATTORNEY S FEES & COSTS - 3 LAW OFFICES OF STEPHEN M. HANSEN PS 1821 DOCK STREET, UNIT 103 TACOMA, WA (253) (253) FAX

18 1 2 fees, etc. DATED at Tacoma, Washington, this 19 th day of August, STEPHEN M. HANSEN, WSBA #15642 Of Attorneys for Plaintiff CERTIFICATE OF SERVICE The undersigned certifies, under penalty of perjury under the laws of the State of Washington, that on the 19 th day of August, 2016, I [ X] ed [ ] mailed via regular U.S. mail [ ] faxed [ ] delivered by legal messenger a true and correct copy of this document to: Michael A. Moore David Edwards Corr Cronin Michelson Baumgardner & Preece LLP 1001 Fourth Avenue, Suite 3900 Seattle WA mmoore@corrcronin.com dedwards@corrcronin.com mbdahl@corrcronin.com Lawrence H. Heftman Jay Williams Dede Kokolis Schiff Hardin LLP 233 S Wacker Dr, Ste 6600 Chicago IL lheftman@schiffhardin.com jwilliams@schiffhardin.com dkokolis@schiffhardin.com DATED this 19 th day of August, 2016, at Tacoma, Washington. SARA B. WALKER, Legal Assistant DECLARATION OF STEPHEN M. HANSEN ISO PLAINTIFF S MOTION FOR APPROVAL OF ATTORNEY S FEES & COSTS - 4 LAW OFFICES OF STEPHEN M. HANSEN PS 1821 DOCK STREET, UNIT 103 TACOMA, WA (253) (253) FAX