UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

Transcription

1 Case :0-cv-0-CBM-E Document 0 Filed 0// Page of Page ID #: 0 BROWER PIVEN A Professional Corporation DAVID A.P. BROWER (Admitted Pro Hac Vice) Park Avenue South rd Floor New York, New York 00 Telephone: () Facsimile: () brower@browerpiven.com Lead Counsel for the Class [Additional Counsel Appear on Signature Page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 0 RAMON GOMEZ, On Behalf of Himself and All Others Similarly Situated, Plaintiff, vs. BIDZ.COM, INC., DAVID ZINBERG, Defendants ROLAND POMFRET, On Behalf of Himself and All Others Similarly Situated, Lead Plaintiff, vs. BIDZ.COM, INC., DAVID ZINBERG, and LAWRENCE Y. KONG, Defendants. Lead Case No. CV0-0 CBM-Ex (Consolidated with Nos. CV0-0 CBM; CV0-0 CBM) CLASS ACTION LEAD PLAINTIFF S COUNSEL S NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS FEES AND REIMBURSEMENT OF EXPENSES DATE: July, 0 TIME: 0:00 a.m. CTRM: JUDGE: Hon. Consuelo B. Marshall

2 Case :0-cv-0-CBM-E Document 0 Filed 0// Page of Page ID #: 0 0 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on July, 0 at 0:00 a.m., before the Honorable Consuelo B. Marshall, United States District Court for the Central District of California, Western Division, located at N. Spring Street, Los Angeles, California 00 in Courtroom No., Plaintiff Roland Pomfret ( Plaintiff ), on behalf of himself and on behalf of the Class, will and hereby does move the Court for an award of attorneys fees to Plaintiff s Counsel and for reimbursement of their litigation costs and expenses incurred in prosecuting the above-captioned action, as set forth in the Stipulation and Agreement of Settlement, dated as of December, 0, between Plaintiff and Defendants Bidz.com, Inc., David Zinberg, and Lawrence Y. Kong. Moreover, Plaintiff moves the Court for approval for Lead Counsel to pay the claims administrator the cost of the notice program. This Motion is based on the accompanying Memorandum of Law in Support of Lead Plaintiff s Counsel s Motion for an Award of Attorneys Fees and Reimbursement of Expenses; Declaration of David A.P. Brower in Support of Lead Plaintiff s Motion for Certification of the Class for Settlement Purposes, Final Approval of the Settlement, Approval of the Plan of Allocation, and Lead Plaintiff s Counsel s Motion for an Award of Attorneys Fees and Reimbursement of Expenses, dated April, 0, with accompanying exhibits, filed and served concurrently with this motion; and the complete files and records in this action; and such other written or oral arguments presented to the Court. This Motion is made pursuant to the Court s Preliminary Order for Notice and Hearing in Connection with Settlement Proceedings signed on February, 0.

3 Case :0-cv-0-CBM-E Document 0 Filed 0// Page of Page ID #: 0 0 DATED: April, 0 Respectfully submitted, BROWER PIVEN A Professional Corporation /s/ David A.P. Brower David A.P. Brower (Admitted Pro Hac Vice) Park Avenue South rd Floor New York, New York 00 Telephone: Facsimile: brower@browerpiven.com Charles J. Piven (Admitted Pro Hac Vice) Yelena Trepetin (Admitted Pro Hac Vice) Old Valley Road Stevenson, Maryland Telephone: Facsimile: piven@browerpiven.com Lead Counsel for the Class MILBERG LLP David E. Azar (SBN ) dazar@milberg.com One California Plaza 00 S. Grand Avenue, Suite 00 Los Angeles, CA 00 Telephone: () -00 Facsimile: () - Liaison Counsel for the Class

4 Case :0-cv-0-CBM-E Document 0 Filed 0// Page of Page ID #: 0 DECLARATION OF SERVICE BY CM/ECF I, the undersigned, declare:. That declarant is and was, at all times herein mentioned, a citizen of the United States and employed in New York City, over the age of years, and not a party to or interested party in the action; that declarant s business address is Park Avenue South, rd Floor, New York, NY 00.. I hereby certify that on April, 0, I served Lead Plaintiff s Counsel s Notice Of Motion And Motion For An Award Of Attorneys Fees And Reimbursement Of Expenses and Memorandum Of Law In Support Of Lead Plaintiff s Counsel s Motion For An Award Of Attorneys Fees And Reimbursement Of Expenses by electronically filing the documents listed above by using the Case Management/Electronic Case filing system.. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the Court s CM/ECF system. I declare under penalty of perjury that the foregoing is true and correct. Executed on April, 0 at New York, NY. /s/ David A.P. Brower DAVID A.P. BROWER 0

5 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 BROWER PIVEN A Professional Corporation DAVID A.P. BROWER (Admitted Pro Hac Vice) Park Avenue South rd Floor New York, New York 00 Telephone: () Facsimile: () brower@browerpiven.com Lead Counsel for the Class [Additional Counsel Appear on Signature Page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 0 RAMON GOMEZ, On Behalf of Himself and All Others Similarly Situated, Plaintiff, vs. BIDZ.COM, INC., DAVID ZINBERG, Defendants ROLAND POMFRET, On Behalf of Himself and All Others Similarly Situated, Lead Plaintiff, vs. BIDZ.COM, INC., DAVID ZINBERG, and LAWRENCE Y. KONG, Defendants. Lead Case No. CV0-0 CBM-Ex (Consolidated with Nos. CV0-0 CBM; CV0-0 CBM) CLASS ACTION MEMORANDUM OF LAW IN SUPPORT OF LEAD PLAINTIFF S COUNSEL S MOTION FOR AN AWARD OF ATTORNEYS FEES AND REIMBURSEMENT OF EXPENSES DATE: July, 0 TIME: 0:00 a.m. CTRM: JUDGE: Hon. Consuelo B. Marshall

6 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 TABLE OF CONTENTS i Page PRELIMINARY STATEMENT... I. THE REQUESTED ATTORNEYS FEES ARE FAIR AND REASONABLE AND SHOULD BE APPROVED... II. A. A Reasonable Percentage Of The Fund Recovered Is An Appropriate Approach To Awarding Attorneys Fees In Common Fund Cases... B. Consideration Of The Relevant Factors Used By Courts In The Ninth Circuit Justifies The Fee Award in This Case.... The Settlement Achieved.... Risks Of Litigation And Contingent Nature Of The Fee.... The Skill Required And Quality Of The Work Performed.... The Novelty And Difficulty Of The Questions Presented.... The Contingent Nature of the Fee And The Financial Burden Carried By Lead Plaintiff s Counsel.... The Customary Fee.... Reaction Of The Class To The Settlement And Attorneys Fees And Expenses Sought.... The Lodestar Crosscheck Confirms The Reasonableness Of The Requested Fee... LEAD PLAINTIFF S COUNSEL S EXPENSES ARE REASONABLE AND WERE NECESSARILY INCURRED TO ACHIEVE THE BENEFIT OBTAINED FOR THE CLASS... CONCLUSION...

7 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 TABLE OF AUTHORITIES CASES ii Page(s) Abrams v. Lightolier, Inc., 0 F.d 0 (d Cir. )... In re Activision Sec. Litig., F. Supp. (N.D. Cal. )... Antonopulos v. N. Am. Thoroughbreds, Inc., No. -0, U.S. Dist. LEXIS (S.D. Cal. May, )..., In re Apollo Group, Inc. Sec. Litig., No. 0-0, 00 U.S. Dist. LEXIS (D. Ariz. Aug., 00)... In re Apple Computer Sec. Litig., No. -0 (N.D. Cal. Mar. 0, )... Blum v. Stenson, U.S. ()... Bratcher v. Bray Doyle Indep. Sch. Dist. No., F.d (0th Cir. )... Buccellato v. AT&T Operations, Inc., No. 0-, 0 U.S. Dist. LEXIS (N.D. Cal. June 0, 0)... In re Cardinal Health Inc. Sec. Litig., F. Supp. d (S.D. Ohio 00)... In re Charles Schwab Corp. Sec. Litig., No. 0-00, 0 U.S. Dist. LEXIS (N.D. Cal. Apr., 0)... In re Cont l Ill. Sec. Litig., F.d (th Cir. )..., In re Corel Corp. Sec. Litig., F. Supp. d (E.D Pa. 00)...

8 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 In re Countrywide Fin. Corp. Sec. Litig., No. 0-0, 0 U.S. Dist. LEXIS (C.D. Cal. Mar., 0)... Craft v. County of San Bernardino, F. Supp. d (00)...0, In re Crazy Eddie Sec. Litig., F. Supp. 0 (E.D.N.Y. )... In re De Laurentiis Enter. Group Inc. Sec. Litig., No. -0 (C.D. Cal. Nov., )... In re Digital Sound Corp. Sec. Litig., No. 0- (C.D. Cal. Apr., )... In re Enron Corp. Sec., Deriv. & ERISA Litig., F. Supp. d (S.D. Tex. 00)... In re Equity Funding Corp. Sec. Litig., F. Supp. 0 (C.D. Cal. )... Fischel v. Equitable Life Assur. Soc y of the U.S., 0 F.d (th Cir. 00)... In re Future Healthcare Sec. Litig., No. -0 (S.D. Ohio Nov., 000)... Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc., F. Supp. (S.D.N.Y. 0)... In re Gen. Instruments Sec. Litig., 0 F. Supp. d (E.D. Pa. 00)..., Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir. )... Harris v. Marhoefer, F.d (th Cir. )... iii

9 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 Hensley v. Eckerhart, U.S. ()... In re Heritage Bond Litig., MDL No. 0-, 00 U.S. Dist. LEXIS (C.D. Cal. June 0, 00)... passim In re Ikon Office Solutions, Inc., F.R.D. (E.D. Pa. 000)... In re Immunex Sec. Litig., F. Supp. (W.D. Wash. )... In re Interpool, Inc. Sec. Litig., No. :0-00-SRC (D.N.J. Sept., 00)... In re JDS Uniphase Corp. Sec. Litig., No. 0-, 00 WL (N.D. Cal. Nov., 00)... Johnson v. Brennan, No. 0-, 0 U.S. Dist. LEXIS 0 (S.D.N.Y. Sept., 0)... Jones v. GN Netcom, Inc. (In re Bluetooth Headset Prods. Liab. Litig.), F.d (th Cir. 0)..., In re King Res. Co. Sec. Litig., 0 F. Supp. 0 (D. Colo. )...,, Keith v. Volpe, 0 F. Supp. 0 (C.D. Cal. 0)... Kerr v. Screen Extras Guild, Inc., F.d (th Cir. )... Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 0 F.d 0 (d Cir. )... In re M.D.C. Holdings Sec. Litig., No. -000, 0 U.S. Dist. LEXIS (S.D. Cal. Aug. 0, 0)... iv

10 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #:0 0 0 In re Mercury Interactive Corp. Sec. Litig., F.d (th Cir. 00)... In re McDonnell Douglas Equip. Leasing Sec. Litig., F. Supp. (S.D.N.Y. )... In re Media Vision Tech. Sec. Litig., F. Supp., (N.D. Cal. )... In re Mego Fin. Corp. Sec. Litig., F.d (th Cir. 000)..., Miltland Raleigh Durham v. Myers, 0 F. Supp. (S.D.N.Y. )... In re New World Enter. Sec. Litig., No. -00 (C.D. Cal. Oct., )... In re Olicom Sec. Litig., Master File No. :-0 (N.D. Tex. Aug. 0, )... In re Omnivision Techs., Inc., F. Supp. d 0 (N.D. Cal. 00)..., In re Oracle Sec. Litig., F. Supp. (N.D. Cal. )... In re Pac. Enters. Sec. Litig., F.d (th Cir. )... Paul, Johnson, Alston & Hunt v. Graulty, F.d (th Cir. )... Pincay Invs. Co. v. Covad Communs. Group, Inc., No. 0-, F. App x. 0 (th Cir. Feb., 00)... In re PNC Bank Corp. Sec. Litig., No. - (W.D. Pa. Sept., )... In re Pub. Service Co. of New Mexico, No. -0, U.S. Dist. LEXIS (S.D. Cal. July, )... v

11 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 In re Ravisent Techs., Inc. Sec. Litig., No. 00-0, 00 U.S. Dist. LEXIS 0 (E.D. Pa. Apr., 00)... In re Reliance Sec. Litig., MDL No. 0 (D. Del. Feb., 00)... Retsky v. Price Waterhouse, No. - (N.D. Ill. Jan. 0, 00)... In re Rite Aid Corp. Sec. Litig., F. Supp. d 0 (E.D. Pa. 00)... In re RJR Nabisco, Inc. Sec. Litig., MDL No., U.S. Dist. LEXIS 0, (S.D.N.Y. Aug., )... Robbins v. Koger Props., Inc., F.d (th Cir. )... Roberts v. Texaco, Inc., F. Supp. (S.D.N.Y. )... In re Rykoff-Sexton Sec. Litig., No. 0-0 (C.D. Cal. Dec. 0, )... In re Schein Pharm., Inc. Sec. Litig., Master Docket No. - (D.N.J. Dec., 000)... In re Seagate Tech. Sec. Litig., No. -0 (N.D. Cal. Aug., )... In re Select Comfort Corp. Sec. Litig., No. - (D. Minn. Feb., 00)... Steinver v. Am. Broad Co., F. App x 0 (th Cir. 00)... In re Synthroid Mktg. Litig., F.d (th Cir. 00)... vi

12 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 In re TFT-LCD (Flat Panel) Antitrust Litig., No. 0-, 0 U.S. Dist. LEXIS (N.D. Cal. Apr., 0)..., 0 Thornberry v. Delta Air Lines, Inc., F.d 0 (th Cir. )... Trang v. Turbine Engine Components Techs. Corp., No. -0, 0 U.S. Dist. LEXIS 0 (C.D. Cal. Dec., 0)... Trauth v. Spearmint Rhino Cos. Worldwide, No. 0-0, 0 U.S. Dist. LEXIS (C.D. Cal. Oct., 0)... In re Toyota Motor Corp. Unintended Acceleration Mktg., No. :0-, 0 U.S. Dist. LEXIS (C.D. Cal. Dec., 0)..., In re U.S. Interactive, Inc. Sec. Litig., No. 0- (E.D. Pa. Oct. 0, 00)... Van Vranken v. Atlantic Richfield Co., 0 F. Supp. (N.D. Cal. )..., Vizcaino v. Microsoft Corp., 0 F.d 0 (th Cir. 00)... passim In re Wash. Pub. Power Supply Sys. Sec. Litig., F.d (th Cir. ) ( WPPSS )... passim In re Xytronyx Sec. Litig., No. - (S.D. Cal. June, )... In re ZZZZ Best Sec. Litig., No. - (C.D. Cal. Jan., )... STATUTES Private Securities Litigation Reform Act of ( PSLRA )...passim vii

13 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 OTHER AUTHORITIES John C. Coffee, Jr., Understanding the Plaintiff s Attorney: The Implicationsof Economic Theory for Private Enforcement of the Law Through Class and Derivative Actions Colum. L. Rev., ()... Richard Posner, Economic Analysis of Law., at (d ed. )... Senate Report No. 0-, 0th Congress, reprinted in U.S.C.C.A.N.... viii

14 Case :0-cv-0-CBM-E Document 0- Filed 0// Page 0 of Page ID #: 0 0 PRELIMINARY STATEMENT Lead Plaintiff Roland Pomfret ( Plaintiff ), in the above-entitled action (the Action ), submits this memorandum in support of Lead Plaintiff s Counsel s application for an award of attorneys fees for their services rendered in this Action; for reimbursement of their litigation costs and expenses incurred in prosecuting this successful Action; and for approval to pay the Claims Administrator the costs related to the notice program. Lead Plaintiff s Counsel are simultaneously submitting the Memorandum of Law in Support of Lead Plaintiff s Motion for Certification of the Class for Settlement Purposes, Final Approval of the Settlement, and Approval of the Plan of Allocation (the Settlement Memorandum ), and the Declaration of David A.P. Brower in Support of Lead Plaintiff s Motion for Certification of the Class for Settlement Purposes, Final Approval of the Settlement, Approval of the Plan of Allocation, and Lead Plaintiff s Counsel s Motion for an Award of Attorneys Fees and Reimbursement of Expenses, dated April, 0 (the Brower Declaration ). The Brower Declaration describes the history of this Action, the claims asserted, the efforts of Lead Plaintiff s Counsel, the documents reviewed, the evidence adduced, and the negotiations leading to the Settlement set forth in the Stipulation between Plaintiff and Defendants Bidz.com, Inc. ( Bidz or the Company ), David Zinberg, and Lawrence Y. Kong (collectively, Defendants ). The Settlement Memorandum discusses the complexity, magnitude and risks associated with this Action and many of the legal obstacles to Plaintiff s success on the merits. Rather than repeating those matters here, this memorandum will focus on the legal and factual standards applicable to attorneys fee requests by successful Lead Counsel is Brower Piven, A Professional Corporation ( Brower Piven ). Lead Plaintiff s Counsel is Brower Piven and Milberg LLP. All terms not defined herein have the same definition as in the Stipulation and Agreement of Settlement, dated as of December, 0 ( Stipulation ). All citations and quotation marks omitted unless otherwise noted.

15 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 plaintiffs attorneys in class action litigation and the appropriateness of the fees requested by Lead Plaintiff s Counsel here. This Action was prosecuted by Lead Plaintiff s Counsel on behalf of all persons and entities who purchased Bidz common stock between August, 00 and November, 00, inclusive (the Class and Class Period ), on a fully contingent basis, and through their efforts, they have obtained a proposed a cash settlement fund for the benefit of the Class of $,0,000, plus interest (the Settlement Fund ), and up to $0,000 for the costs of notice and administration (the Settlement ). The Settlement was arrived at only after reviewing public documents and nonpublic documents produced by Defendants; interviewing numerous witnesses, including former employees of Bidz; drafting a detailed Consolidated Class Action Complaint and the Consolidated Amended Class Action Complaint; defending against two separate rounds of motions to dismiss; subpoenaing third parties relevant to the claims made; engaging in an extensive damages analysis; and vigorously negotiating with able opponents, including through a mediation session with JAMS Mediator Jed D. Melnick. As discussed below, this motion for fees and expenses is premised on a number of factors, including the substantial monetary result Lead Plaintiff s Counsel have achieved for members of the Class; the numerous and substantial risks undertaken on a wholly contingent basis; Lead Plaintiff s Counsel s vigorous and skillful prosecution of the Action; and the lack of any objections by members of the Class to the requested fees. As compensation for their efforts on behalf of the Class, Lead Plaintiff s Counsel respectfully request that the Court award attorneys fees equal to % of the total benefits accrued to the Class, or $00,000, plus accrued interest. Lead Plaintiff s Counsel also seek reimbursement of $00,000 in out-of-pocket expenses which they reasonably and necessarily incurred in litigating the claims of Class members. Since Plaintiff s Counsel have underestimated their unreimbursed expenses as discussed in the Brower Declaration. Plaintiff s Counsel may seek an award for reimbursement of the expenses that exceed $00,000 at a later time when applying for an award of other [Footnote continued on next page]

16 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 this action arises under the Private Securities Litigation Reform Act of ( PSLRA ), the award of attorneys fees is now governed by Section D(a)() of the PSLRA, which has adopted the percentage of the recovery method for the award of attorneys fees in securities class actions. See Senate Report No. 0-, 0th Congress, reprinted in U.S.C.C.A.N., -0 (Senate Committee Report on the PSLRA criticizing the lodestar method and stating that the PSLRA intends fees to be based on a percentage). As demonstrated herein, the percentage of the recovery method which is consistent with the practice in the private marketplace where contingent fee attorneys and their clients routinely enter into percentage fee arrangements has been widely embraced by courts in this District, this Circuit and across the country as the best approach to calculating attorneys fees. The % of the total benefits requested, which reflects the bench mark percentage in this Circuit, see Paul, Johnson, Alston & Hunt v. Graulty, F.d (th Cir. ), is more than fair and reasonable here when considered under the applicable standards and, as discussed below, is well within the normal range of awards made in contingent fee matters for class actions in the Ninth Circuit, particularly in view of the considerable risks attendant in bringing and pursuing this litigation. See, e.g., Jones v. GN Netcom, Inc. (In re Bluetooth Headset Prods. Liab. Litig.), F.d, (th Cir. 0) ( [C]ourts typically calculate % of the fund as the benchmark for a reason-able fee award.... ); In re Mego Fin. Corp. Sec. Litig., F.d (th Cir. 000) (upholding fee award of %); Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ) ( This circuit has established % of the common fund as a benchmark award for attorney fees. ); In re Toyota Motor Corp. Unintended Acceleration Mktg., No. :0-, 0 U.S. Dist. LEXIS, at * (C.D. Cal. Dec., 0) (citing Hanlon); In re Heritage Bond Litig., MDL No. 0-, 00 [Footnote continued from previous page] later-incurred settlement-related unreimbursed expenses, including expenses incurred in connection with the administration of the Settlement.

17 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 U.S. Dist. LEXIS, at *0 (C.D. Cal. June 0, 00) (awarding % of the class fund as a fee). Furthermore, under a lodestar analysis, which may still be used as a cross check of the appropriateness of settling on a particular percentage, plaintiffs counsel s time in common fund cases has been routinely multiplied by a factor of to times that counsel s time to compensate them for having undertaken the very real risk of receiving no compensation at all. See, e.g., Van Vranken v. Atlantic Richfield Co., 0 F. Supp., (N.D. Cal. ). Lead Plaintiff s Counsel s total lodestar of $,,.0 reflects,. hours of time. Thus, the fees sought here reflect a substantial discount (%) on the time Lead Plaintiff s Counsel actually spent litigating the matter and requires the application of a negative multiplier to the lodestar. The requested risk multiplier, therefore, is also well below the range of multipliers awarded by courts in those securities class actions where the lodestar method has been utilized to determine fee awards to successful counsel. Importantly, under either the percentage of the benefit or the lodestar/multiplier approach, the ultimate objective is an award that, in the Court s view, will fairly and reasonably compensate Lead Plaintiff s Counsel for their successful efforts on behalf of the Class. See, e.g., In re Cont l Ill. Sec. Litig., F.d, (th Cir. ) (explaining that the goal of the fee-setting process is to determine what the lawyer would receive if he were selling his services in the market. ); In re Oracle Sec. Litig., F. Supp., 0 (N.D. Cal. ) (quoting In re Cont l Ill. with approval). Consequently, and for the reasons more specifically set forth below, Lead Plaintiff s Counsel submit that their request for an award of attorneys fees and reimbursement of expenses is fair and reasonable and should be awarded in full. Furthermore, the deadline for Class members to object to Lead Plaintiff s Counsel s fee request is May, 0. Notice was sent to,000 Class members and potential nominees (including Claim Packets that had to be r ed due to updated addresses). See Affidavit of Abbe L. Darr Regarding (A) Mailing of the Notice And

18 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 Proof Of Claim; (B) Publication Of The Summary Notice; And (C) Requests For Exclusion Received to Date, dated April, 0 ( Darr Affidavit or Darr Aff. ) at, attached as Exhibit to the Brower Declaration. The Notice stated that Lead Plaintiff s Counsel would seek an award of attorneys fees and reimbursement of expenses not to exceed % of the $. million total benefit to the Settlement Class. Importantly, while the deadline for objections has not yet passed, as of April, 0, not a single Class member has objected to Lead Plaintiff s Counsel s request for attorneys fees or reimbursement of expenses. Id. at. I. THE REQUESTED ATTORNEYS FEES ARE FAIR AND REASONABLE AND SHOULD BE APPROVED A. A Reasonable Percentage Of The Fund Recovered Is An Appropriate Approach To Awarding Attorneys Fees In Common Fund Cases For their efforts in creating a common fund for the benefit of the Class, Lead Plaintiff s Counsel seek a reasonable percentage of the total benefits recovered for the Class. It is well settled in the Ninth Circuit that, in a common fund case, the court has discretion to apply either the percentage of the fund method or the lodestar method in calculating a fee award. Fischel v. Equitable Life Assur. Soc y of the U.S., 0 F.d, 00 (th Cir. 00); see also In re Wash. Pub. Power Supply Sys. Sec. Litig., F.d, (th Cir. ) ( WPPSS ); Trang v. Turbine Engine Components Techs. Corp., No. -0, 0 U.S. Dist. LEXIS 0, at * (C.D. Cal. Dec., 0). While a court has discretion to use either method, the primary basis of the fee award remains the percentage method. Vizcaino v. Microsoft Corp., 0 F.d 0, 00 (th Cir. 00). Courts within the Ninth Circuit have almost uniformly shifted to the percentage method in awarding fees in representative actions. The lodestar method The PSLRA requires that total attorneys fees and expenses awarded by the court to counsel for the plaintiff class shall not exceed a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class. U.S.C. u-(a)().

19 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 is used only when special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted to the case or other relevant factors. Toyota, 0 U.S. Dist. LEXIS, at *. Compensating counsel in common-fund cases on a percentage basis is reasonable. First, it more closely aligns the lawyers interest in being paid a fair fee with the interest of the class in achieving the maximum possible recovery in the shortest amount of time. Second, use of the percentage method decreases the burden imposed on courts by eliminating a detailed and time-consuming lodestar analysis and assuring that the beneficiaries do not experience undue delay in receiving their share of the settlement. See Johnson v. Brennan, No. 0-, 0 U.S. Dist. LEXIS 0, at * (S.D.N.Y. Sept., 0) ( [T] he percentage method preserves judicial resources because it relieves the court of the cumbersome, enervating, and often surrealistic process of evaluating fee petitions. ); see also In re Activision Sec. Litig., F. Supp., - (N.D. Cal. ). It is also consistent with the practice in the private marketplace where contingent-fee attorneys are customarily compensated by a percentage of the recovery. See also John C. Coffee, Jr., Understanding the Plaintiff s Attorney: The Implications of Economic Theory for Private Enforcement of the Law Through Class and Derivative Actions, Colum. L. Rev., - (). B. Consideration Of The Relevant Factors Used By Courts In The Ninth Circuit Justifies The Fee Award in This Case The ultimate task for this Court in awarding attorneys fees is to ensure that counsel is fairly compensated for the work they performed and the results they achieved. Lead Plaintiff s Counsel seeks a fee award of % of the $. million total benefit to the Class, or $00,000, plus interest, and submit that such an award is reasonable and appropriate under the circumstances of this case. After the decision is made to apply the percentage method of fee determination, courts must determine what percentage to apply. Although not mandated by the Ninth Circuit, courts often consider the following factors when determining the percentage to be applied: () the result obtained for the

20 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #:0 0 0 class; () the effort expended by counsel; () counsel s experience; () counsel s skill; () the complexity of the issues; () the risks of non-payment assumed by counsel; () the reaction of the class; and () comparison with counsel s loadstar. See, e.g., Heritage, 00 U.S. Dist. LEXIS, at *0. As discussed below, application of these factors confirms that a fee of % of the total benefits is justified.. The Settlement Achieved Here, Lead Plaintiff s Counsel has succeeded in obtaining a $. million cash settlement, plus interest, and an agreement from Defendants to pay up to $0,000 for the costs of notice and administration of the Settlement, amounts that would otherwise reduce the amount available for ultimate distribution to claiming Class members. The total benefits to the Class represent over % of the total estimated damages that could be recovered if Plaintiff was completely successful on all issues of liability and damages in the Action, and 00% of eligible Class members file and prove their claims. Further, on a claims-made basis, the estimated actual recovery to claiming Class members is approximately.% of their maximum possible recovery, assuming complete success on all issues of liability and damages for the entire Class. This achievement was the result of Lead Plaintiff s Counsel s arduous litigation and settlement negotiations. As a result of this Settlement, Class members will receive immediate compensation for their losses in Bidz common stock and will avoid the substantial risks of no recovery had the Action been litigated and lost at summary judgment, trial or on appeal. Courts have consistently recognized that the results achieved is a major and perhaps the most important factor to be considered in determining an appropriate fee award. Hensley v. Eckerhart, U.S., () ( most critical factor is the degree of success obtained ); In re Bluetooth Headset, F.d at ( Foremost among these considerations, however, is the benefit obtained for the class. ); In re King Res. Co. Sec. Litig., 0 F. Supp. 0, 0 (D. Colo. ) ( the amount of the recovery, and end result achieved are of primary importance, for these are the true benefit to the client ). As described in detail in the Brower Declaration, Plaintiff faced

21 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 numerous obstacles in this litigation. The expense and length of continued proceedings necessary to prosecute the Action against Defendants through discovery, trial and appeals would be substantial. Plaintiff, with Lead Plaintiff s Counsel, carefully considered the likelihood of success against Defendants, the likely total damages that could be recovered against Defendants following the Court s order on the motion to dismiss, the risks to quantifying such damages, as well as the uncertain outcome and risk of any litigation, especially in complex actions such as this, and the difficulties and delays inherent in such litigation. The outstanding recovery here merits an attorney fee award of % of the total benefits achieved for the Class. It is also commensurate with the results obtained in other cases where class counsel was awarded % of a common fund. Indeed, similar and higher percentage fee awards have been made where the amount of the recovery is a much lower percentage of class-wide potential damages. See In re Gen. Instruments Sec. Litig., 0 F. Supp. d,, (E.D. Pa. 00) (awarding % from settlement fund that was approximately % of the plaintiffs estimated damages); In re Crazy Eddie Sec. Litig., F. Supp. 0, (E.D.N.Y. ) (awarding.% where counsel recovered 0% of damages).. Risks Of Litigation And Contingent Nature Of The Fee Numerous cases have recognized that risk is an important factor in determining a fair fee award. See, e.g., WPPSS, F.d at -0; Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 0 F.d 0, (d Cir. ); In re TFT- LCD (Flat Panel) Antitrust Litig., No. 0-, 0 U.S. Dist. LEXIS, at * (N.D. Cal. Apr., 0). Uncertainty that an ultimate recovery would be obtained is highly relevant in determining risk. WPPSS, F.d at 00; Lindy, 0 F.d at. As the court aptly observed in In re King Resources: The litigation also involved unique and substantial issues of law in the technical area of SEC Rule 0 b-... difficult, complex and oft-disputed class action questions, and difficult questions regarding computation of damages. * * * In evaluating the services rendered in this case, appropriate consideration

22 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 must be given to the risks assumed by plaintiffs counsel in undertaking the litigation. The prospects of success were by no means certain at the outset, and indeed, the chances of success were highly speculative and problematical. 0 F. Supp. at, -; see also Heritage, 00 U.S. Dist. LEXIS, at * ( The risks assumed by Class Counsel, particularly the risk of non-payment or reimbursement of expenses, is a factor in determining counsel s proper fee award. ). Lead Plaintiff s Counsel undertook this action on a wholly contingent fee basis, risking their time and their own money with no guarantee of compensation. Unlike Defendants counsel (who were paid substantial hourly rates, and reimbursed for their out-of-pocket expenses on a regular basis), Lead Plaintiff s Counsel have not been compensated for any of their time or expenses to date, and have prosecuted this Action faced with the very real risk that they might not be compensated at all for their efforts. Indeed, the rate of dismissals in securities class actions has increased nearly two-fold since passage of the PSLRA. See In re Cardinal Health Inc. Sec. Litig., F. Supp. d, (S.D. Ohio 00) (almost % of shareholder class actions filed between December, 00 and December, 00 were dismissed). Further, even if Plaintiff prevailed on the issue of liability, significant additional risks would remain in establishing the existence of damages. In addition, class certification was not assured. Moreover, even success at trial does not negate the considerable risk of non-payment for counsel who undertake securities fraud class actions on a contingency basis. See, e.g., In re Apollo Group, Inc. Sec. Litig., No. 0-0, 00 U.S. Dist. LEXIS (D. Ariz. Aug., 00) (district court vacated $0 million jury verdict for plaintiffs and entered judgment in favor of defendants); Robbins v. Koger Props., Inc., F.d (th Cir. ) (verdict of $ million for plaintiffs reversed and judgment entered for defendant). Therefore, an evaluation of the risk of litigation supports the requested fee award.. The Skill Required And Quality Of The Work Performed The third factor to consider in determining what fee to award is the skill required and quality of work performed. Heritage, 00 U.S. Dist. LEXIS at *-*; In

23 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 re TFT-LCD, 0 U.S. Dist. LEXIS, at *. The successful prosecution of these complex claims required the participation of highly skilled and specialized attorneys. Heritage, 00 U.S. Dist. LEXIS, at *. ( The experience of counsel is also a factor in determining the appropriate fee award. ). From the outset, Lead Plaintiff s Counsel engaged in a concerted effort to obtain the maximum recovery for the Class. Lead Plaintiff s Counsel demonstrated that, despite the barriers erected by the PSLRA, they would work to try to develop sufficient evidence to support a convincing case. The Brower Declaration describes the background and experience of the firms representing Plaintiff. See Brower Decl., Exs. &. The firms that acted as Lead Plaintiff s Counsel are highly specialized in the field of securities class action litigation. Lead Plaintiff s Counsel s efforts in efficiently obtaining a very substantial recovery for the Settlement Class is the best indicator of their abilities. Lead Plaintiff s Counsel brought their significant experience to bear in achieving this Settlement. Both in terms of work performed and expenses incurred, this case was a model of efficient, effective, and frugal prosecution of claims by Lead Plaintiff s Counsel. Indeed, [w]ithout such expertise, it is likely that the hours would have been significantly higher to achieve the same result. Other counsel, even those experienced in [securities] litigation, would likely have had to expend considerably more time to accomplish the same result. See Craft v. County of San Bernardino, F. Supp. d, (00). From the outset, Lead Plaintiff s Counsel vigorously pursued the prosecution of this Action to obtain the maximum recovery for the Class, including conducting an investigation into the allegations against Defendants, successfully defeating Defendants second motion to dismiss, conducting discovery including from third parties, reviewing public documents available about the Company and non-public documents produced by Defendants, and consulting with experts concerning the issues in the case. As a result, Lead Plaintiff s Counsel marshaled the factual and legal information needed to successfully negotiate the exceptional settlement before the Court. The foregoing 0

24 Case :0-cv-0-CBM-E Document 0- Filed 0// Page 0 of Page ID #: 0 0 speaks volumes for the quality of representation the Class has received. Moreover, the quality and vigor of opposing counsel is also important in evaluating the services rendered by Lead Plaintiff s Counsel. See, e.g., Heritage, 00 U.S. Dist. LEXIS at *; In re Equity Funding Corp. Sec. Litig., F. Supp. 0, (C.D. Cal. ). Here, Defendants were represented by Gibson, Dunn & Crutcher, LLP, a prominent, national law firm with substantial experience in securities class actions. Thus, the fact that Lead Plaintiff s Counsel achieved this Settlement for the Class in the face of such formidable legal opposition further evidences the quality of their work.. The Novelty And Difficulty Of The Questions Presented Courts have long recognized that the novelty and difficulty of the issues in a case are significant factors to be considered in making a fee award. See Kerr v. Screen Extras Guild, Inc., F.d, -0 (th Cir. ); Trauth v. Spearmint Rhino Cos. Worldwide, No. 0-0, 0 U.S. Dist. LEXIS, at * n. (C.D. Cal. Oct., 0); Vizcaino, F. Supp. d at 0. As discussed in detail in the Settlement Memorandum and the Brower Declaration, this Action presented complex, difficult and challenging litigation to Lead Plaintiff s Counsel. This was made clear with the Court s dismissal of the Action after the first motion to dismiss. Lead Plaintiff s Counsel then invested significant time and effort thoroughly researching and further investigating their claims to address the shortcomings identified by the Court to overcome Defendants second motion to dismiss. These legal obstacles do not include the complex discovery that would be required later, as many of the witnesses were believed to live outside the United States. These difficulties weigh in favor of the requested fee award.. The Contingent Nature Of The Fee And The Financial Burden Carried By Lead Plaintiff s Counsel The Ninth Circuit has confirmed that a determination of a fair and reasonable fee must include consideration of the contingent nature of the fee and the obstacles surmounted in obtaining the settlement.

25 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 It is an established practice in the private legal market to reward attorneys for taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases. See Richard Posner, Economic Analysis of Law., at - (d ed. ). Contingent 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. WPPSS, F.d at ; see also In re Charles Schwab Corp. Sec. Litig., No. 0-00, 0 U.S. Dist. LEXIS, at *-*0 (N.D. Cal. Apr., 0)( Class counsel undertook the representation of the classes in this case on a contingent-fee basis, and no payment has been made to date for their services or for their litigation expenses. ). The importance of assuring adequate representation for plaintiffs who could not otherwise afford competent attorneys justifies providing those attorneys who do accept matters on a contingent fee basis a larger fee than if they were billing by the hour or on a flat fee. In re Omnivision Techs., Inc., F. Supp. d 0, 0 (N.D. Cal. 00). Lead Plaintiff s Counsel have received no compensation during the nearly fouryear course of this Action and have invested,. hours in time and incurred significant expenses (totaling more than $0,.0) in obtaining the Settlement for the benefit of the Class. In addition to the advancement of costs, lawyers working on the case have forgone the business opportunity to devote time to other cases. See Vizcaino, 0 F.d at 00. Any fee award or expense reimbursement to Lead Plaintiff s Counsel has always been at risk, and completely contingent on the result achieved and on this Court s discretion in awarding fees and reimbursing expenses. Indeed, the risk of no recovery in complex cases of this type is very real. Lead Plaintiff s Counsel knows from personal experience that, despite the most vigorous and competent efforts, their success in contingent litigation such as this is never guaranteed. The commencement of a class action is no guarantee of success. Bystanders who focus only on the fees awarded for the successes fail to consider that those same fees help fund the enormous overhead expenses incurred during the years of litigation when

26 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 nothing is earned. These cases are not always settled, nor are plaintiffs lawyers always successful. Indeed, there are recent cases where plaintiffs class counsel has either lost at trial (and was forced to pay all of defendants costs) or won at trial only to have a substantial judgment overturned through post-trial motions. See, e.g., In re JDS Uniphase Corp. Sec. Litig., No. 0-, 00 WL (N.D. Cal. Nov., 00). Hard, diligent work by skilled counsel is required to develop facts and theories to prosecute a case or persuade Defendants to settle on terms favorable to the Class. It is essential that counsel, such as Lead Plaintiff s Counsel here, have the credibility to let Defendants know with certainty that they will persevere in the face of the risk, even at the expense of their fees.. The Customary Fee The Ninth Circuit has held that the bench mark percentage for the fee award should be percent. Graulty, F.d at. Further, granting % of the total benefits in fees based on the percentage method is consistent with the private marketplace where contingent-fee attorneys typically negotiate percentage fee arrangements with their clients. Many courts weigh the customary fee in the marketplace for contingent cases as a significant measure in approving fees. See, e.g., In re Synthroid Marketing Litig., F.d, (th Cir. 00) ( [W]hen deciding on appropriate fee levels in common-fund cases, courts must do their best to award counsel the market price for legal services, in light of the risk of nonpayment and the normal rate of compensation in the market at the time. ); In re RJR Nabisco, Inc. Sec. Litig., MDL No., U.S. Dist. LEXIS 0, at *0 (S.D.N.Y. Aug., ) ( What should govern such [fee] awards is not the essentially whimsical view of a judge, or even a panel of judges, as to how much is enough in a particular case, but what the market pays in similar cases ). Although the Ninth Circuit has not adopted the customary fee as a factor to consider in setting fees in class actions, the Circuit expressly recognized it as at least probative of what fee is reasonable. Vizcaino, 0 F.d at 0; see also In re Countrywide Fin. Corp. Sec. Litig., No. 0-0, 0

27 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 U.S. Dist. LEXIS, at * (C.D. Cal. Mar., 0). If there were a non-class action litigation, the customary contingent fee would likely range between 0 and 0 percent of the recovery. See, e.g., In re Pub. Service Co. of New Mexico, No. -0, U.S. Dist. LEXIS, at *0 (S.D. Cal. July, ); ( [i]f this were a non-representative litigation, the customary fee arrangement would be contingent, on a percentage basis, and in the range of 0% to 0% of the recovery ); In re M.D.C. Holdings Sec. Litig., No. -000, 0 U.S. Dist. LEXIS, at * (S.D. Cal. Aug. 0, 0) ( [i]n private contingent litigation, fee contracts have traditionally ranged between 0% and 0% of the total recovery ); In re Ikon Office Solutions, Inc., F.R.D., (E.D. Pa. 000) ( in private contingency fee cases, particularly in tort matters, plaintiffs counsel routinely negotiate agreements providing for between thirty and forty percent of any recovery ); accord Blum v. Stenson, U.S., 0 () ( In tort suits, an attorney might receive one-fourth of whatever amount the plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery. ) (concurring opinion). Thus, not surprisingly, courts in this circuit, as well as other circuits, have awarded attorneys fees of over % or more in complex class actions. Heritage, 00 U.S. Dist. LEXIS, at * (awarding fee of /% of common fund); see also In re Mego Fin. Corp. Sec. Litig., F.d at (affirming award of attorneys fees of /%); In re Pac. Enters. Sec. Litig., F.d, (th Cir. ) (% of total recovery); In re Pub. Serv. Co. of New Mexico, U.S. Dist. LEXIS, at *0 (awarding one-third); Antonopulos v. North Am. Thoroughbreds, Inc., No. -0, U.S. Dist. LEXIS, at *-* (S.D. Cal. May, ) (awarding one-third); In re M.D.C. Holdings Sec. Litig., 0 U.S. Dist. LEXIS, at * (awarding 0% attorneys fee plus expenses). See also In re Interpool, Inc. Sec. Litig., No. :0-00-SRC (D.N.J. Sept., 00) (awarding -/% of recovery, plus expenses); In re Ravisent Techs., Inc. Sec. Litig., Civ. A. No. 00-0, 00 U.S. Dist. LEXIS 0, at *, * (E.D. Pa. Apr., 00) (awarding fee of one-third of the settlement fund plus expenses in securities class action case); In re U.S. Interactive, Inc. Sec. Litig., No. 0- (E.D. Pa. Oct. 0, 00) (fee [Footnote continued on next page]

28 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 Lead Plaintiff s Counsel s efforts were performed, and the results achieved, on a wholly contingent basis in the face of determined opposition. Under these circumstances, it necessarily follows that Lead Plaintiff s Counsel is entitled to the award of a reasonable percentage fee based on the benefit conferred and the common fund obtained. Indeed, courts have routinely awarded fees in far greater percentages of the result achieved to successful plaintiffs counsel. Under all of the circumstances present here, a % fee of the total benefits is fair and reasonable.. Reaction Of The Class To The Settlement And Attorneys Fees And Expenses Sought The reaction of the class to a proposed settlement and fee requested is a significant factor in approving fees. Pincay Invs. Co. v. Covad Communs. Group, Inc., No. 0-, F. App x. 0, (th Cir. Feb., 00). Here, Notice of the 0 [Footnote continued from previous page] equal to % of total recovery, plus expenses); In re Select Comfort Corp. Sec. Litig., No. - (D. Minn. Feb., 00) (awarding -/% of total recovery, plus expenses); In re Corel Corp. Sec. Litig., F. Supp. d, - (E.D Pa. 00) (awarding one-third of the settlement fund plus expenses in securities class action case); In re Reliance Sec. Litig., MDL No. 0 (D. Del. Feb., 00) (awarding % of total recovery, plus expenses); Retsky v. Price Waterhouse, No. - (N.D. Ill. Jan. 0, 00) (awarding % of total recovery, plus expenses); In re Gen. Instru. Sec. Litig., 0 F. Supp. d at - (awarding fee of one-third of the settlement fund, plus expenses, in securities class action case); In re Schein Pharm., Inc. Sec. Litig., Master Docket No. - (D.N.J. Dec., 000) (awarding -/% of total recovery, plus expenses); In re Future Healthcare Sec. Litig., No. -0 (S.D. Ohio Nov., 000) (awarding -/% of total recovery, plus expenses); In re PNC Bank Corp. Sec. Litig., No. - (W.D. Pa. Sept., ) (awarding -/% of total recovery, plus expenses); In re Olicom Sec. Litig., Master File No. :-0-D (N.D. Tex. Aug. 0, ) (awarding -/% of total recovery, plus expenses); In re ZZZZ Best Sec. Litig., No. - (C.D. Cal. Jan., ) (fee equal to -/% of total recovery, plus expenses); In re Xytronyx Sec. Litig., No. - (S.D. Cal. June, ) (awarding -/% of recovery, plus expenses); In re Apple Computer Sec. Litig., No. -0 (N.D. Cal. Mar. 0, ) (awarding approximately % of total recovery, plus expenses); In re Rykoff-Sexton Sec. Litig., No. 0-0 (C.D. Cal. Dec. 0, ) (awarding -/% of recovery, plus expenses); In re De Laurentiis Enter. Group Inc. Sec. Litig., No. -0 (C.D. Cal. Nov., ) (awarding % of total recovery, plus expenses); In re New World Enter. Sec. Litig., No. -00 (C.D. Cal. Oct., ) (awarding -/% of recovery, plus expenses); Antonopulos, U.S. Dist. LEXIS, at *-* (awarding one-third fee plus expenses in securities class action); In re Seagate Tech. Sec. Litig., No. -0 (N.D. Cal. Aug., ) (awarding - /% of total recovery, plus expenses); In re Digital Sound Corp. Sec. Litig., No. 0- (C.D. Cal. Apr., ) (awarding -/% of total recovery, plus expenses).

29 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #: 0 0 Settlement was sent to,000 potential nominees and Class members (including Claim Packets that were r ed due to updated addresses) and Summary Notice was published three times electronically over the PR Newswire. Darr Aff. at,. Moreover, the Notice and Proof of Claim were posted on the Claim Administrator s website. The Notice informed Class members that Lead Plaintiff s Counsel would apply for attorneys fees not to exceed % of the total benefits to the Class and reimbursement of litigation expenses in the approximate amount of $00,000. The Notice advised Class members of their right to object to the Settlement, the Plan of Allocation or to Lead Plaintiff s Counsel s fee request. Consistent with In re Mercury Interactive Corp. Sec. Litig., F.d, (th Cir. 00), which requires counsel s fee motion to be filed before the deadline for objections to afford class members the opportunity to thoroughly to examine counsel s fee motion, the deadline for filing any objections is May, 0 (providing for days to examine the papers). As of April, 0, no member of the Class has yet objected to Lead Plaintiff s Counsel s application for an award of attorneys fees. Darr Aff. at.. The Lodestar Crosscheck Confirms The Reasonableness Of The Requested Fee Although courts in this Circuit typically apply the percentage approach to determine attorneys fees in common-fund cases, the Court may use a lodestar analysis as a cross-check on the percentage method. See WPPSS, F.d at -. Vizcaino, F. Supp. d at 0; In re Immunex Sec. Litig., F. Supp., (W.D. Wash. ). Here, such a cross-check confirms that the requested fee amount is reasonable. In Vizcaino, the Ninth Circuit, in approving a multiplier of., noted that courts have routinely enhanced the lodestar to reflect the risk of non-payment in common fund cases. 0 F.d at 0 (quoting WPPSS, F.d at 00). In cases applying the lodestar method to award fees, multipliers of between and. have been common. See Van Vranken, 0 F. Supp. at ( Multipliers in the - range are

30 Case :0-cv-0-CBM-E Document 0- Filed 0// Page of Page ID #:0 0 0 common in lodestar awards for lengthy and complex class action litigation. ); see also Steinver v. Am. Broad Co., F. App x 0, (th Cir. 00) (approving a percentage fee award that corresponded to a multiplier of.); Buccellato v. AT&T Operations, Inc., No. 0-, 0 U.S. Dist. LEXIS, at *-* (N.D. Cal. June 0, 0) (finding a multiplier of. was reasonable); Craft, F. Supp. d at (approving a fee award that corresponded to a multiplier of.); In re Enron Corp. Sec., Deriv. & ERISA Litig., F. Supp. d (S.D. Tex. 00) (. multiplier); In re Rite Aid Corp. Sec. Litig., F. Supp. d 0 (E.D. Pa. 00) (multipliers of.-.); Roberts v. Texaco, Inc., F. Supp., (S.D.N.Y. ) (. multiplier); Keith v. Volpe, 0 F. Supp. 0, (C.D. Cal. 0) (multiplier of.). Here, the reported lodestar of Lead Plaintiff s Counsel is $,,.0. See Brower Decl., Exs. &. Thus, the fees sought here reflect a substantial (%) discount on the time charges of Lead Plaintiff s Counsel spent litigating the matter and requires the application of a negative multiplier to the lodestar. II. LEAD PLAINTIFF S COUNSEL S EXPENSES ARE REASONABLE AND WERE NECESSARILY INCURRED TO ACHIEVE THE BENEFIT OBTAINED FOR THE CLASS Lead Plaintiff s Counsel also requests that the Court grant their application for reimbursement of $00,000 in litigation costs incurred in connection with the prosecution of this litigation. See, e.g., In re Omnivision Techs., Inc., F. Supp. d at 0 ( Attorneys may recover their reasonable expenses that would typically be billed to paying clients in non-contingency matters. ) (citing Harris v. Marhoefer, F.d, (th Cir. )). The appropriate analysis to apply in deciding whether expenses are compensable in a common fund case of this type is whether the particular costs are of the type typically billed by attorneys to paying clients in the marketplace. See Harris, F.d at ( Harris may recover as part of the award of attorney s fees those out-of-pocket expenses that would normally be charged to a fee paying client. ); see also Bratcher v. Bray-Doyle Indep. Sch. Dist. No., F.d, - (0th Cir. ) (expenses