Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 1 of 63 PageID #: 470

Transcription

1 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 1 of 63 PageID #: 470 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK BROOKLYN DIVISION PHILIP J. CHARVAT and SABRINA WHEELER, individually and on behalf of all others similarly situated, No. 2:15-cv JMA-SIL v. Plaintiffs, DEMAND FOR JURY PLYMOUTH ROCK ENERGY, LLC, ENERGY ACQUISITIONS GROUP, LLC, and JOHN WILLIAM VAN TUBERGEN, Defendants. DECLARATION OF BETH E. TERRELL IN SUPPORT OF CLASS COUNSEL S MOTION FOR ATTORNEYS FEES, COSTS, AND SERVICE AWARDS I, Beth E. Terrell, declare as follows: 1. I am a member of the law firm of Terrell Marshall Law Group PLLC ( TMLG ), counsel of record for Plaintiffs in this matter. I am admitted to practice before this Court and am a member in good standing of the bars of the states of Washington and California. I respectfully submit this declaration in support of Plaintiffs motion for attorneys fees and service awards. Except as otherwise noted, I have personal knowledge of the facts set forth in this declaration, and could testify competently to them if called upon to do so. 2. Plaintiffs estimate that each claimant will receive between $ This estimate is based on a conservatively estimated claims rate range of 6% to 10%, which, in my experience, is slightly higher than claims rates in recent TCPA actions.

2 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 2 of 63 PageID #: TMLG has always worked with no guarantee of being compensated for its time and effort on this case. Payment of TMLG s fees has always been contingent on successfully obtaining relief for Plaintiffs and Class members. I always believed and understood there was a substantial risk of non-payment. This belief and understanding was based on past experience in class action cases, and particularly in other TCPA class actions. A. Firm Background and Experience 4. TMLG is a law firm in Seattle, Washington, that focuses on complex civil and commercial litigation with an emphasis on consumer protection, product defect, civil rights, employment, wage and hour, real estate, and personal injury matters. The attorneys of TMLG have extensive experience in class actions, collective actions, and other complex matters. They have been appointed lead or co-lead class counsel in numerous cases at both the state and federal level. They have prosecuted a variety of multi-million-dollar consumer fraud, civil rights, wage and hour, and product defect class actions. The defendants in these cases have included companies such as Wal-Mart, Microsoft, Best Buy, Toyota, Honda, Sallie Mae, Comcast, ABM Industries, Inc., AT&T, T- Mobile USA, Weyerhaeuser, Behr Products, American Cemwood, Bank of America, Discover Financial Services, Capital One, and HSBC. 5. I am the lead attorney from TMLG in the instant litigation. A founding member of TMLG, I concentrate my practice in complex litigation, including the prosecution of consumer, defective product, and wage and hour class actions. I have served as co-lead counsel on numerous multi-state and nationwide class actions. I also handle a variety of employment issues including employment discrimination, restrictive covenant litigation, and pre-litigation counseling and advice. 6. I received a B.A., magna cum laude, from Gonzaga University in In 1995, I received my J.D. from the University of California, Davis School of Law, Order of the Coif

3 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 3 of 63 PageID #: 472 Prior to forming TMLG in May 2008, I was a member of Tousley Brain Stephens PLLC. I am a frequent speaker at legal conferences on a wide variety of topics including consumer class actions, employment litigation, and electronic discovery, and I have been awarded an AV rating in Martindale Hubble by my peers. 7. I am actively involved in several professional organizations and activities. For example, I currently am an Eagle Member of the Washington State Association of Justice ( WSAJ ), and serve as the Chair of its Consumer Protection Section. I am the current Chair of the Washington Employment Lawyers Association and a member of the Public Justice Foundation s Board of Directors. I also serve on the Foundation s Executive and Development Committees. 8. I have been repeatedly named to the annual Washington Super Lawyers list (2005, 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017) by Washington Law & Politics Magazine. I was also named to their Top 100 Washington Super Lawyers list (2014 and 2015) and their Top 50 Women Super Lawyers list (2012, 2013, 2014, 2015, and 2016). 9. My work on this case, estimated at 33.5 hours, was billed at a rate of $ per hour. B. Qualifications of Other TMLG Attorneys and Staff 10. Jennifer Rust Murray is a founding member of TMLG. Ms. Murray graduated from the University of Washington School of Law in 2005 where she was a member of the Washington Law Review. Ms. Murray s law review article entitled Proving Cause in Fact under Washington s Consumer Protection Act: The Case for a Rebuttable Presumption of Reliance won the Carkeek prize for best submission by a student author. Prior to law school, Ms. Murray earned a Ph.D. in Philosophy from Emory University. Ms. Murray has been an active member of the Washington State Bar Association since her admission to the bar in In 2010, Ms

4 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 4 of 63 PageID #: 473 Murray was admitted to the Oregon State Bar. In 2011, 2012, 2013, 2014, and 2015, Ms. Murray was named a Washington Rising Star by SuperLawyer Magazine. Ms. Murray focuses her practice on complex commercial litigation with an emphasis on consumer and employment issues. Ms. Murray s work on this case, estimated at 57.7 hours, was billed at $ per hour. 11. Mary B. Reiten is a member of TMLG. Ms. Reiten received her B.A. with high honors from the University of California, Berkeley in 1991 and graduated from the University of California, Hastings College of Law in Before joining TMLG, Ms. Reiten was a member of Tousley Brain Stephens PLLC. Ms. Reiten was also an associate at Lieff Cabraser Heiman & Bernstein for one year and clerked for the superior courts of Sitka, Alaska and San Francisco, California. Ms. Reiten has represented plaintiffs in several consumer class actions, including Spafford v. EchoStar; Hartman, et al. v. Comcast; Richison v. American Cemwood Corp.; Zwicker et al. v. General Motors Corporation; and Trimble v. Holmes Harbor Sewer District, et al. In 2004, Ms. Reiten was named a Washington Rising Star by Washington Law & Politics magazine. Ms. Reiten s work on this case, estimated at 15.2 hours, was billed at $ per hour. 12. A. Janay Ferguson is formerly of counsel at TMLG. Ms. Ferguson had sixteen years of experience in complex civil litigation, professional malpractice, and employment law. Before joining TMLG, Ms. Ferguson represented attorneys, brokers, accountants, realtors, and other professions involving a variety of claims including professional discipline, corporate dissolution, and employment disputes. Ms. Ferguson s work on this case, estimated at 9.9 hours, was billed at $ per hour. 13. Samuel J. Strauss, a former associate at TMLG, also performed substantial work on this matter. Mr. Strauss graduated from the University of Washington School of Law with - 4 -

5 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 5 of 63 PageID #: 474 honors in Before relocating to another state, Mr. Strauss was an active member of the Washington Employment Lawyers Association and Washington State Association for Justice, and was a member of the QLaw Foundation Board of Directors and Unemployment Law Project Board of Directors. Mr. Strauss work on this case, estimated at 16.1 hours, was billed at $ per hour. 14. Renee L. Ambacher, a former law clerk at TMLG, also performed work on this matter. At the time Ms. Ambacher worked on this matter in 2016, she was a law student at the University of Washington School of Law. The work performed by Ms. Ambacher was work that required sufficient knowledge of legal concepts and that I or another attorney would have had to perform absent such assistance. Ms. Ambacher s work on this case, estimated at 10.9 hours, was billed at $ per hour. 15. Rachel E. Hoover is a paralegal at TMLG. Ms. Hoover has been a paralegal at TMLG since 2011 and has worked in the legal field since Ms. Hoover is qualified to perform substantive legal work based on her training and past experience working for attorneys, including attorneys outside of TMLG s offices. The work performed by Ms. Hoover was work that required sufficient knowledge of legal concepts and that I or another attorney would have had to perform absent such assistance. Ms. Hoover s work on this case, estimated at 29.7 hours, was billed at $ per hour. 16. Bradford K. Kinsey is a legal secretary at TMLG. Mr. Kinsey has been a legal secretary at TMLG since 2009 and has worked in the legal field since Mr. Kinsey is qualified to perform substantive legal work based on his training and past experience working for attorneys, including attorneys outside of TMLG s offices. Mr. Kinsey s work on this case, estimated at 19.8 hours, was billed at $ per hour

6 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 6 of 63 PageID #: Razel D. Agustino is a former litigation assistant at TMLG and worked in that capacity since She has a B.A. from the University of California, Berkeley and is qualified to perform legal work based on her training and experience in the field. The work that Ms. Agustino performed required sufficient knowledge of legal concepts and that I or another attorney would have had to perform absent her assistance. Ms. Agustino s work on this case, estimated at 15.0 hours, was billed at $ per hour. 18. China Davis is a former legal assistant at TMLG and has worked in the legal field since She has a B.A. from Northwestern University and is qualified to perform legal work based on her training and experience in the field. The work that Ms. Davis performed required sufficient knowledge of legal concepts and that I or another attorney would have had to perform absent her assistance. Ms. Davis work on this case, estimated at 57.7 hours, was billed at $ per hour. C. Other Cases Litigated by TMLG 19. TMLG has actively and successfully litigated class action lawsuits under the Telephone Consumer Protection Act ( TCPA ). TMLG has taken the lead in some of the largest nationwide class actions filed under the TCPA, including those filed against large financial institutions such as Sallie Mae, Bank of America, Discover Financial Services, Capital One, and HSBC. I have been appointed co-lead counsel in two of the largest MDLs involving TCPA claims, In re Capital One Telephone Consumer Protection Act Litigation, 1:12-cv (N.D. Illinois), and In re Monitronics International, Inc. Telephone Consumer Protection Act Litigation, MDL No. 1:13-MD-2493 (N.D. W. Va.). 20. TMLG is litigating or has recently settled the following Telephone Consumer Protection class actions: - 6 -

7 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 7 of 63 PageID #: 476 In re Capital One Telephone Consumer Protection Act Litigation Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. I served as court-appointed Interim Co-Lead Counsel; final approval of the $75,455, settlement was granted in February In re Monitronics International, Inc. Telephone Consumer Protection Act Litigation Filed on behalf consumers who received automated, prerecorded solicitation telephone calls on their residential and business telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq., the Washington Automatic Dialing and Announcing Device statute, RCW , and the Washington Consumer Protection Act, RCW et seq. I serve as co-lead counsel in the MDL. The case settled on a class-wide basis in 2017, and preliminary approval was granted in September Wilkins, et al. v. HSBC Bank Nevada, N.A., et al. Filed on behalf of individuals who alleged that HSBC made prerecorded calls using an automatic dialing system. The case settled on a class-wide basis in 2014 for $39,975,000, and final approval was granted in March Ott, et al. v. Mortgage Investors Corporation Filed on behalf of consumers who received automated solicitation telephone calls on their cellular and residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG negotiated a $7,483,600 classwide settlement; final approval was granted in January Abante Rooter and Plumbing, Inc., et al. v. Alarm.com Incorporated, et al. TMLG represents three certified classes of consumers who received automated solicitation telephone calls on their cellular and residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case is pending in the United States District Court for the Northern District of California. Abante Rooter and Plumbing, Inc., et al. v. Pivotal Payments Inc., et al. Filed on behalf of consumers who received automated solicitation telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case is pending in the United States District Court for the Northern District of California

8 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 8 of 63 PageID #: 477 Snyder, et al. v. Ocwen Loan Servicing, LLC Filed on behalf of consumers who received automated collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis in 2017, and preliminary approval is pending in the United States District Court for the Northern District of Illinois. Charvat, et al. v. Plymouth Rock Energy, et al. Filed on behalf of consumers who received automated solicitation telephone calls on their cellular and residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. and/or to telephone numbers registered on the National-Do-Not-Call Registry. The case settled on a class-wide basis in 2016, and preliminary approval was granted in September Davenport v. Discover Financial Services, et al. Filed on behalf of consumers who received automated solicitation telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis for $5,000,000 in 2016, and final approval is pending in the United States District Court for the Northern District of Illinois. Melito, et al. v. American Eagle Outfitters, Inc., et al. Filed on behalf of consumers who received spam text messages on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis in 2016, and final approval was granted in September Ashack v. Caliber Home Loans Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG worked to negotiate a $2,895,000 nationwide settlement in 2016, and final approval was granted in June Joseph v. TrueBlue Inc., et al. Filed on behalf of consumers who received spam text messages on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a classwide basis in 2016, and final approval was granted in March Booth, et al. v. AppStack, et al. TMLG represents a certified class of consumers who received automated, prerecorded solicitation telephone - 8 -

9 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 9 of 63 PageID #: 478 calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis in 2016, and final approval was granted in January Bee, Denning, Inc., et al. v. Capital Alliance Group, et al. TMLG represented two certified classes of consumers who received junk faxes and automated, prerecorded solicitation telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis, and final was granted in November Lushe, et al. v. Verengo, Inc. Filed on behalf of consumers who received automated, prerecorded solicitation telephone calls on their cellular and residential telephones without their prior express consent, within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis in 2015, and final approval was granted in May Rinky Dink, et al. v. Electronic Merchant Systems, Inc., et al. Filed on behalf of consumers who received automated, prerecorded solicitation telephone calls on their cellular telephones and Washington landlines without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq., the Washington Automatic Dialing and Announcing Device statute, RCW , and the Washington Consumer Protection Act, RCW et seq. The case settled on a class-wide basis in 2015, and final approval was granted in April Rinky Dink, et al. v. World Business Lenders, LLC Filed on behalf of consumers who received automated, prerecorded solicitation telephone calls on their cellular telephones and Washington landlines without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq., the Washington Automatic Dialing and Announcing Device statute, RCW , and the Washington Consumer Protection Act, RCW et seq. The case settled on a class-wide basis in 2015, and final approval was granted in May Taylor v. Universal Auto Group I Filed on behalf of consumers who received automated, prerecorded solicitation telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. The case settled on a class-wide basis, and final approval was granted in February

10 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 10 of 63 PageID #: 479 actions: Gehrich v. Chase Bank USA Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG worked to negotiate a $34,000,000 nationwide settlement; final approval was granted in March Chesbro v. Best Buy Stores, L.P. Filed on behalf of consumers who received automated, prerecorded solicitation telephone calls on their residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG negotiated a $4.5 million settlement, which was granted final approval in September Rose, et al. v. Bank of America Corp., et al. Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG worked to negotiate a nationwide settlement of $32,083,905, which was granted final approval in August Steinfeld v. Discover Financial Services, et al. Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG negotiated an $8.7 million settlement, which was granted final approval in March Hanley v. Fifth Third Bank Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG negotiated a $4.5 million settlement, which was granted final approval in December Arthur v. Sallie Mae, Inc. Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. TMLG worked to negotiate a $24.15 million nationwide settlement, and final approval was granted in TMLG is litigating or has recently settled the following consumer protection class

11 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 11 of 63 PageID #: 480 Gold, et al. v. Lumber Liquidators, Inc. Filed in 2014 on behalf of consumers who purchased defective flooring. TMLG represents a nationwide class of consumers as well as seven sub-classes of consumers in the states of California, New York, Illinois, West Virginia, Minnesota, Pennsylvania, and Florida. The case is pending in the United States District Court for the Northern District of California. Jordan v. Nationstar Mortgage, LLC After a plaintiff class was certified by a Washington trial court, the action was removed to District Court in TMLG represents a class of homeowners who were improperly locked out of their homes by their mortgage lender. Breazeale, et al v. Victim Services, Inc., et al TMLG currently represents a proposed class of consumers who allege violations of the FDCPA. The lawsuit is pending in U.S. District Court for the Northern District of California. Dibb, et al. v. AllianceOne Receivables Management, Inc. TMLG represents three certified classes of Washington consumers who received unfair and deceptive debt collection notices that included threats of criminal prosecution. The case settled on a class-wide basis for $1,900,000 in March 2017, and final approval was granted in July Cavnar, et al. v. BounceBack, Inc. Filed in 2014 on behalf of Washington consumers who received false, misleading, and deceptive debt collection letters printed on the letter head of county prosecuting attorneys. TMLG worked to negotiate a class-wide settlement, and final approval was granted in September Soto v. American Honda Motor Corporation Filed in 2012 on behalf of owners and lessees of Honda Accords that consume motor oil at a much higher rate than intended, due to a systemic design defect. The case settled on a class-wide basis and final approval was granted in March Smith v. Legal Helpers Debt Resolution LLC Filed in 2011 on behalf of consumers who were charged excessive fees for debt adjusting services in violation of Washington law. Class settlements were approved by the Court in December 2012 and December Brown v. Consumer Law Associates LLC, et al. Filed in 2011 on behalf of consumers who were charged excessive fees for debt adjusting services in violation of Washington law. A class settlement was approved by the Court in

12 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 12 of 63 PageID #: 481 actions: Bronzich, et al. v. Persels & Associates, LLC, et al. Filed in 2010 on behalf of consumers who were charged excessive fees for debt adjusting services in violation of Washington law. A class settlement was approved by the Court in Milligan, et al. v. Toyota Motor Sales, Inc. Filed in 2009 on behalf of owners of Toyota RAV4s containing defective Electronic Computer Modules, which cause harsh shifting conditions and permanent damage to the transmissions. TMLG worked to negotiate a nationwide class action settlement, and final approval was granted in January Kitec Consolidated Cases Served as co-counsel in a national class action lawsuit against the manufacturers of defective hydronic heating and plumbing systems. The case settled for $125,000,000, and final approval was granted in Seraphin v. AT&T Internet Services, Inc., et al. A multi-state class action filed in 2009 on behalf of AT&T internet customers who paid $20 a month or less for internet service and were assessed and Early Termination Fee when they cancelled service. A class settlement was approved by the Court in TMLG is litigating or has recently settled the following wage and hour class Helde v. Knight Transportation, Inc. TMLG represented a certified class of current and former truck drivers alleging violations of wage and hour laws in Washington. After several years of vigorous litigation, TMLG reached a class-wide settlement of $1.45 million, not including attorneys fees and costs. Final Approval is currently pending in U.S. District Court for the Western District of Washington. Tolliver, et al. v. Avvo, Inc. TMLG represented a class of current and former sales employees who alleged they were misclassified as overtime exempt. The case settled on a class-wide basis for $1.75 million, and final approval was granted in September McCracken v. Pacific Cargo Services, LLC, et al. TMLG represented a certified class of truck drivers in Washington and Oregon who alleged wage and hour violations. After years of complex litigation in Washington and Oregon Courts, TMLG reached a settlement of $475,000 on behalf of the class. King County Superior Court granted final approval of the settlement in August

13 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 13 of 63 PageID #: 482 Spencer v. FedEx Ground Package System, Inc. TMLG represented a certified class of current and former delivery drivers who allege violations of state wage and hour laws. The case settled on a classwide basis for $10,500,000, and final approval was granted in December Romatka, et al. v. Brinker International Payroll Company, L.P., et al. Filed in 2013 on behalf of approximated 900 workers who alleged violations of Washington State wage and hour laws. The case settled on a class-wide basis, and final approval was granted in March Newell v. Home Care of Washington, Inc., et al. TMLG represented a certified class of more than 400 in-home health care workers who alleged violations of state wage and hour laws. The case settled on a class-wide basis, and final approval was granted in January Paz v. Sakuma Brothers Farms, Inc. Filed in 2013 on behalf of migrant and seasonal workers who alleged violations of Washington State wage and hours laws. A class-wide settlement was approved by the Court in December Hill v. Xerox Business Services, LLC, et al., and Douglas v. Xerox Business Services, LLC, et al. TMLG represents two certified classes of current and former call center workers who allege violations of state and federal wage and hour laws. Both cases were filed in 2012 and are pending in the United States District Court for the Western District of Washington. Dickerson v. Cable Communications, Inc., et al. Filed in 2012 on behalf of approximately 500 individuals alleging their employer violated Oregon s wage and hour laws. Defendants systematic scheme of wage and hour violations involved, among other things, failure to pay non-managerial installation technicians for all hours worked, including overtime. The case settled on a class-wide basis, and final approval was granted in Khadera v. ABM Industries, Inc. TMLG represented 337 employees who alleged violations of federal and state wage and hour laws. The case settled, and final approval was granted in Simpson v. ABM Industries, Inc. TMLG represented a CR 23 class of approximately 6,800 employees who alleged Washington State wage and hour violations. The case settled in March 2012, and final approval of the settlement was granted in September

14 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 14 of 63 PageID #: 483 Barnett, et al. v. Wal-Mart Stores, Inc. Filed in 2001 on behalf of Washington employees alleging wage and hour violations by the country s largest private employer. After more than seven years of litigation, TMLG obtained a settlement of $35 million on behalf of a certified class of approximately 88,000 employees. That settlement was approved in July McGinnity, et al. v. AutoNation, Inc., et al. TMLG represented a certified class of more than 500 employees who were denied earned vacation benefits. After nearly two years of litigation before an arbitrator, we obtained an award of $2.34 million on behalf of the class. We successfully defended the award on appeal, and the Washington Supreme Court denied Defendants petition for review. A judgment in excess of $2,600,000 was satisfied in September Ramirez, et al. v. Precision Drywall, Inc. TMLG represented a certified class of workers who alleged they were not paid for overtime work. The case was tried before a jury during a five-week period in 2010, and TMLG successfully obtained a judgment for the workers in excess of $4,000,000. TMLG continues to work on enforcing the judgment against multiple defendants. D. The Requested Fee Award 23. Class Counsel are moving for an award of reasonable fees in the amount of $558,333, which amounts to one-third of the Settlement Fund, and reimbursement of litigation costs, estimated to be $50, TMLG attorneys and staff members maintain contemporaneous, daily time records. TMLG maintains these time records in the regular course of its business. 25. I reviewed the time entries for this case and reduced and eliminated time where appropriate. I eliminated time that was administrative in nature, and made reductions where time arguably could have been more efficiently spent. In total, I reduced TMLG s hours by 61.5 hours or 19%. Following these reductions, TMLG s lodestar is $99,

15 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 15 of 63 PageID #: 484 E. TMLG s Billing Rates 26. The below table details the fees my firm has expended to date in the prosecution of this matter. It is likely that TMLG will expend additional time working on this case, including preparing for and attending the final fairness hearing, answering Class Member questions, and working with the Claims Administrator. NAME AND POSITION DESCRIPTION OF WORK PERFORMED RATE HOURS BILLED TOTAL Beth E. Terrell Partner at Terrell Marshall Law Group PLLC J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995 Jennifer Rust Murray Partner at Terrell Marshall Law Group PLLC J.D. from Univ. of Washington School of Law, 2005 Mary B. Reiten Partner at Terrell Marshall Law Group PLLC since October 2013 J.D. from Univ. of California, Hastings College of Law, 1998 A. Janay Ferguson Of Counsel at Terrell Marshall Law Group PLLC from April 2015 ATTORNEYS Worked on pleadings and memoranda; analyzed various legal and factual issues; worked on discovery matters; worked on case strategy; worked on expert witness issues; worked on damages issues; worked on ESI and data issues; prepared for mediation; attended mediation. Worked on pleadings and memoranda; analyzed various legal and factual issues; worked on discovery matters; worked on case strategy; worked on expert witness issues; worked on damages issues; worked on ESI and data issues; attended mediation; negotiated and worked on the settlement agreement and supporting documents; worked on notice and settlement administration issues; worked on approval papers. Worked on pleadings, memoranda, and correspondence; analyzed various legal and factual issues; worked on discovery matters; worked on third-party discovery. Worked on pleadings, memoranda, and correspondence; analyzed various factual issues; worked on insurance issues. $ $24, $ $34, $ $8, $ $5,

16 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 16 of 63 PageID #: 485 NAME AND POSITION DESCRIPTION OF WORK PERFORMED RATE HOURS BILLED TOTAL through March 2017 J.D. from Seattle University School of Law, 2000 Samuel J. Strauss Associate at Terrell Marshall Law Group PLLC from Sept to April 2016 J.D. from Univ. of Washington School of Law, 2013 Renee L. Ambacher Law Clerk at Terrell Marshall Law Group PLLC from October 2016 to December 2016 University of Washington School of Law Rachel E. Hoover Paralegal at Terrell Marshall Law Group PLLC since March 2011 University of Washington, 2005 Bradford Kinsey Legal Secretary at Terrell Marshall Law Group PLLC since October 2009 AA as a legal assistant from Edmonds Community College, 1989 Razel D. Agustino Legal Assistant at Terrell Marshall Interviewed class members; investigated complaints; worked on complaint. LAW CLERKS Worked on preliminary approval papers; researched legal issues. PARALEGALS/LEGAL ASSISTANTS Worked on initial case investigation; worked on pleadings and memoranda; worked on discovery; worked on third party discovery; worked on data analysis; worked on expert issues; worked on document review; worked on document production; worked on class notice and claims administration issues. Drafted and revised pleadings; filed and served pleadings and discovery-related documents; prepared correspondence; researched court rules and procedures; coordinated signatures for settlement agreement and finalized same. Drafted third party discovery; worked on discovery; filed and served pleadings and discovery-related documents. $ $4, $ $2, $ $8, $ $4, $ $1,

17 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 17 of 63 PageID #: 486 NAME AND POSITION DESCRIPTION OF WORK PERFORMED RATE HOURS BILLED TOTAL Law Group PLLC from March 2015 to January 2017 University of California, Berkeley, 2012 China D. Davis Legal Assistant at Terrell Marshall Law Group PLLC from February 2015 to April 2016 Northwestern University, 2010 Worked on initial case investigation; reviewed complaints related to Plymouth Rock Energy; worked on public records requests; telephone calls with class members; performed factual research. $ $5, TOTAL: $99, TMLG sets its rates for attorneys and staff members based on a variety of factors, including among others: the experience, skill, and sophistication required for the types of legal services typically performed; the rates customarily charged in similar matters; and the experience, reputation, and ability of the attorneys and staff members. 28. Our lodestar calculations are based on reasonable hourly rates. Indeed, courts have approved fee requests by TMLG that were based on these rates (or similar rates in place at the time of application). A sample of the federal courts since 2010 that have approved TMLG s billing rates and reimbursement of costs as reasonable are: a. May 2016, in Lushe v. Verengo, Inc., CV AB (PJWx) (C.D. Cal.); b. September 2014, in Chesbro v. Best Buy Stores, L.P., C RAJ (W.D. Wash.); c. March 2013, in Meilleur v. AT&T Corp., C MJP (W.D. Wash.);

18 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 18 of 63 PageID #: 487 d. October 2012, in Khadera v. ABM Industries, Inc., C RSM (W.D. Wash.); e. September 2012, in Arthur v. Sallie Mae, Inc., C JLR (W.D. Wash.); f. January 2012, in Milligan v. Toyota Motor Sales, U.S.A., Inc., C RS (N.D. Cal.); g. August 2011, in Seraphin v. AT&T Internet Svcs., CV REB (D. Idaho); and h. December 2010, in Carideo v. Dell Inc., No. CV JLR (W.D. Wash.). 29. The regular practice at TMLG is for all attorneys and staff to keep contemporaneous time records, maintained on a daily basis, and describing tasks performed in 0.1 hour increments. Firm policy requires all staff to enter their time into an electronic timekeeping system on a daily basis. I carefully reviewed TMLG s time records for time that I believed represented duplicative work. 30. TMLG incurred $25, in out-of-pocket costs prosecuting this action. The following table identifies the expenses my firm has expended to date in the prosecution of this matter. My firm put forward these out-of-pocket costs without assurance that they would ever be repaid. CATEGORY OF EXPENSE TOTAL Air Fare $ Expert $18, FedEx $

19 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 19 of 63 PageID #: 488 CATEGORY OF EXPENSE TOTAL Filing Fees $ Hotel $1, Meals $ Mediation $1, Messenger/Process Server $2, Mileage $ Outside Copies $2.33 PACER $11.40 Postage $66.65 Taxi $ Toll $26.00 TOTAL $25, The costs itemized in this chart are taken from contemporaneous, documented expense records regularly prepared and maintained by TMLG in the regular course of business. F. Careful Assignment of Work 32. Tasks were delegated appropriately among partners, associate attorneys, paralegals, and other staff according to their complexity. The work performed by associate attorneys and paralegals was work that required sufficient knowledge of legal concepts and that I or another partner would have had to perform absent such assistance. The paralegals identified are all qualified to perform substantive legal work based on their training and past experience working for attorneys, including attorneys outside of TMLG s offices. I and other Class counsel

20 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 20 of 63 PageID #: 489 therefore made every effort to litigate this efficiently by reducing duplication of effort and assigning work to the lowest billing timekeepers where feasible. 33. In addition, TMLG worked closely with co-counsel to divide tasks, ensure efficient case management, and prevent duplication of efforts. By assigning specific tasks among firms, we were able to avoid replicating work. Only where it was necessary to have involvement from all of the firms, such as during the mediations, did such involvement occur. 34. Attached hereto as Exhibits A E are true and correct copies of decisions from courts across the country awarding attorneys fees equal to one-third of the common fund. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED at Seattle, Washington, this 5th day of October, /s/ Beth E. Terrell, Admitted Pro Hac Vice Beth E. Terrell, Admitted Pro Hac Vice

21 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 21 of 63 PageID #: 490 CERTIFICATE OF SERVICE I, Beth E. Terrell, hereby certify that on October 5, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Casey B. Howard choward@lockelord.com LOCKE LORD LLP Three World Financial Center New York, New York Telephone: (212) Simon Fleischmann, Admitted Pro Hac Vice sfleischmann@lockelord.com LOCKE LORD LLP 111 South Wacker Drive Chicago, Illinois Telephone: (312) Attorneys for Defendant Plymouth Rock Energy, LLC Scott R. Sewick ssewick@vttlaw.com VAN TUBERGEN & TREUTLER, PLLC 114 North Third Street Grand Haven, Michigan Telephone: (616) Attorneys for Defendants Energy Acquisitions Group, LLC and Van Tubergen DATED this 5th day of October, TERRELL MARSHALL LAW GROUP PLLC By: /s/ Beth E. Terrell, Admitted Pro Hac Vice Beth E. Terrell, Admitted Pro Hac Vice bterrell@terrellmarshall.com 936 North 34th Street, Suite 300 Seattle, Washington Telephone: (206) Attorneys for Plaintiffs

22 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 22 of 63 PageID #: 491 EXHIBIT A

23 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 23 of 63 PageID #: 492 Case: 1:13-cv Document #: 98 Filed: 11/03/15 Page 1 of 7 PageID #:1367 NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SHEILA ALLEN, individually and on ) behalf of all others similarly situated, ) ) Plaintiff, ) ) v. ) No. 13 CV 8285 ) JP MORGAN CHASE BANK, N.A., ) Judge Rebecca R. Pallmeyer ) Defendant. ) ORDER Plaintiff Sheila Allen represents a nationwide class of persons who allege that Defendant JP Morgan Chase Bank called them on their cell phones, using an automatic telephone dialing system or recording, without consent, in violation of the Telephone Consumer Protection Act ( TCPA ), 47 U.S.C. 227(b)(1)(A). After extensive discovery, the parties negotiated a settlement. This court granted preliminary approval to the terms of the agreement on May 19, 2015 [58] and granted final approval on October 21, 2015 [93]. The court presented its reasons for that decision in open court, and summarizes those reasons in writing here. For these same reasons, the court approves Plaintiff Sheila Allen s motion [59] for an award of attorneys fees, costs, and a service award. DISCUSSION As amply explained in Plaintiff s motion for approval [83], the terms of this settlement were the result of a hard-fought, arm s-length negotiation, and the court found them fair, reasonable, and adequate. See FED. R.CIV. P. 23(e)(2). Under its terms, Defendant has paid $10,200,000 into a settlement fund which will provide pro rata payment to eligible class members who file claims. No funds will revert to Defendant. The court approved a plan of notice to class members that resulted in direct individual notice to the overwhelming majority (99.98%) of class members, more than 84,000 of whom have submitted claim forms. The parties anticipate that each qualified claimant will receive at least $70.00; if after initial

24 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 24 of 63 PageID #: 493 Case: 1:13-cv Document #: 98 Filed: 11/03/15 Page 2 of 7 PageID #:1368 distribution, funds remain sufficient to permit a further distribution of at least $10.00 per class members, an additional payment will be distributed. Class members who do not opt out are deemed to have released claims that arise out of Chase s automatic dialing system calls, as well as claims that arise out of or relate to the administration of the settlement. The parties reached agreement only after a full-day session with an experienced private mediator followed by weeks of continued negotiations on their own. In The agreement has been well received by class members, and appears on its face to be reasonable. The class appeared to have meritorious claims, but recovery was not at all free from doubt: Chase argued that certain FCC rulings defining an autodialer barred these claims; that Chase has a safe harbor for calls it made to reassigned numbers; and that a number of class members were barred from proceeding in court by arbitration provisions. Chase challenged class representative Sheila Allen s own claim on the basis that it had prior express consent for those calls within the meaning of the TCPA. In a class of 2,087,559 members, only four class members timely objected to the proposed resolution (two of whom later withdrew their objections), and another 43 requested exclusion from the settlement, while 84,727 have submitted claims for recovery under the settlement. The expected recovery of $70.25 per claimant is consistent with the amounts recovered in similar Telephone Consumer Protection Act (TCPA) class actions. See, e.g., In re Capital One Telephone Consumer Prot. Act Litig., 80 F. Supp. 3d 781, (N.D. Ill. 2015) (granting final approval where recovery per claimant was $34.60); Rose v. Bank of Am. Corp., 2014 WL , *10 11 (N.D. Cal. Aug. 29, 2014) (granting final approval where recovery per claimant was estimated at $20 to $40). Although Objectors argued that class members should have been compensated on a per-call basis, rather than receive a pro rata share of the award, this court is not persuaded. Objectors proposed method of apportioning damages would require factual inquiry into millions of individuals interactions with Defendant, which would quite simply be unfeasible. As Plaintiffs counsel concedes, a number of those individuals

25 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 25 of 63 PageID #: 494 Case: 1:13-cv Document #: 98 Filed: 11/03/15 Page 3 of 7 PageID #:1369 may have signed arbitration agreements that would preclude any recovery in a court action. This settlement obviates the need for individual inquiry and provides relief to any class member who responds to the notice. The court is satisfied, as well, that the method for providing notice to class members was reasonable and effective. See FED. R.CIV. P. 23(e)(1). The individual notice procedure resulted in contact with nearly all of the settlement class members. Only 43 of the millions of class members contacted chose to opt out. The 60-day notice period for objections and optouts was also was sufficient under Circuit precedent. See Gautreaux v. Pierce, 690 F.2d 616, 632 n. 17 (7th Cir. 1982) ( [W]e are unpersuaded that the 21-day notice period... [was] inadequate under Rule 23). Objectors urge that the release resulting from this settlement is overbroad. Again, the court disagrees. The proposed settlement provides for the release of claims arising from the use of an automatic telephone dialing system and/or an artificial or prerecorded voice to make calls to a cellular telephone, as well as claims arising from the settlement. (Pl. s Mot. for Settlement, Doc. 83, Ex. 1 at 15.) That release language plainly applies only to the species of claim brought in this action and does not jeopardize any claims unrelated to the allegations of the complaint.. Objectors also took issue with a possible future cy pres distribution of the settlement fund s remainder a distribution contemplated only if two attempts to distribute the award among those class members who filed claim forms but did not cash their checks prove unsuccessful. This approach, however, is well established. Glen Ellyn Pharmacy, Inc. v. LaRoche-Posay, LLC, No. 11 C968, 2012 WL , *1 (N.D. Ill. Feb. 23, 2012) (citing In re Folding Carton Antitrust Litig., 744 F.2d 1252, 1254 (7th Cir. 1984), and Houck on behalf of U.S. v. Folding Carton Admin. Comm., 881 F.2d 494, (7th Cir. 1989)). Objector Rhodes suggested a lower minimum threshold value ($2) for a further distribution to claimants, but his proposal was no less arbitrary than the minimum dollar value ($10) agreed to in the settlement.

26 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 26 of 63 PageID #: 495 Case: 1:13-cv Document #: 98 Filed: 11/03/15 Page 4 of 7 PageID #:1370 It is costly to issue checks, and, as Plaintiffs counsel observes, the smaller the check, the less likely it is that class members will actually cash that check and benefit from the settlement. Objectors have suggested that the Supreme Court s grant of certiorari in Spokeo, Inc. v. Robins, see 135 S. Ct (2015), militates in favor of entering a stay of this case and postponing final approval, if any, until after the Supreme Court considers that challenge. This objection is particularly puzzling. As Plaintiffs counsel and Defendant s counsel point out, the Spokeo case puts the class at some risk. Should the Justices reverse the Ninth Circuit s holding in that case, see Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), some class members in this case (including some Objectors themselves) who have no provable damages may be barred from recovering anything. The court s decision not to stay final approval is in Objectors and the other class members best interests. Several remaining objections are easily dispatched. Objector Jabrani argued that the settlement should include compensation on a per-text-message basis; making the appropriate determinations would require expensive effort, however, and class counsel points out that it appears Jabrani himself did not receive any text messages from Defendant at all. Objector Sberna proposed that the settlement should provide for an offset to any debts owed by class members to Defendant. In the court s view, this proposal would essentially create a subclass; moreover, many class members did not owe Defendant any debt at all, and some debts that class members do technically owe Chase may no longer be collectable at all, due to limitations periods having run. In any event, any class member who believes he or she could recover substantially more money or greater relief on his/her own or was free to opt out of this settlement, and some did. The court recognizes that any settlement is a compromise, and that it is always possible to propose terms that might be more attractive to certain class members. The court s role is only to determine whether the settlement that has been proposed is fair and reasonable, and concludes that this one is particularly in light of the facts that several class

27 Case 2:15-cv JMA-SIL Document 57-3 Filed 10/05/17 Page 27 of 63 PageID #: 496 Case: 1:13-cv Document #: 98 Filed: 11/03/15 Page 5 of 7 PageID #:1371 members (including some Objectors ) claims might be subject to arbitration, and that some class members may have consented to calls from Defendant.. Finally, Objectors protested that the attorneys fees award of up to $3,399,966, which is one-third of the total settlement fund amount of $10.2 million, is unreasonable. See FED. R. CIV. P. 23(h). They proposed the use of a lodestar formula instead. In this circuit, courts setting attorneys fees in class actions attempt to approximate the market rate that prevails between willing buyers and willing sellers of legal services. Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 957 (7th Cir. 2013) (citations omitted). When a class suit produces a fund for the class, it is commonplace to award the lawyers for the class a percentage of the fund. Gaskill v. Gordon, 160 F.3d 361, 362 (7th Cir. 1998) (citations omitted). While the decision whether to use a percentage method or a lodestar method remains in the discretion of the district court, Florin v. Nationsbank of Ga., N.A., 34 F.3d 560, 566 (7th Cir. 1994), [t]he use of a lodestar cross-check has fallen into disfavor in this Circuit. Beesley v. Int l Paper Co., No. 3:06-cv-703, 2014 WL , *3 (S.D. Ill. Jan. 31, 2014) (citing In re Synthroid Mktg. Litig., 325 F.3d 974, (7th Cir. 2003) ( Inefficient conduct of the litigation therefore does not afford any reason to reduce class counsel s percentage of the fund that their work produced. )). Objectors are troubled by the percentage chosen in this case, where counsel expect to recover one-third of the award as an attorneys fee. In re Capital One was a class action in this district alleging the same statutory violation as alleged here; in that case, the court awarded a percentage formula rather than a lodestar, consistent with the normal practice in consumer class actions. 80 F. Supp. 3d at 795. Engaging in an in-depth analysis of the risks inherent to the litigation, class counsel s work, and existing empirical research on class settlements, the court concluded that class members would have negotiated a fee of approximately 20 to 24 percent of the settlement fund, with a downward scaling fee arrangement as the fund increased in value. Id. at The per-class member recovery in that case was much smaller however, and the settlement fund was $75.5 million, arguably making a lower fee percentage