UNLIMITED CIVIL JURISDICTION

Transcription

1 0 0 LOHR RIPAMONTI & SEGARICH LLP Jason S. Lohr (SBN ) jason.lohr@lrllp.com Alec L. Segarich (SBN 0) alec.segarich@lrllp.com Roberto G. Ripamonti (SBN ) roberto.ripamonti@lrllp.com 0 Geary Street, th Fl. San Francisco, CA 0 Telephone: () - Facsimile: () - Attorneys for Plaintiff ABDO GHAZI and the class SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ABDO GHAZI, individually, and on behalf of all others similarly situated, Plaintiff, v. UBER TECHNOLOGIES, INC., RASIER, LLC; RASIER-CA, LLC; and DOES -0, Defendants. UNLIMITED CIVIL JURISDICTION Case No. CGC-- SUPPLEMENTAL BRIEFING IN SUPPORT OF CLASS COUNSELS MOTION FOR ATTORNEYS FEES AND COSTS Hon. Curtis E.A. Karnow Date: September 0, 0 Time: :00 p.m. Dept: 0

2 0 0 TABLE OF CONTENTS INTRODUCTION... SUPPLEMENTAL ARGUMENT... A. LRS Counsel s lodestar is properly calculated utilizing LRS Counsel s 0 hourly rate.... B. Preparing the motion to disqualify class counsel in O Connor was reasonable.... The Court may not apportion fees on a fee agreement alone, but must fully consider each attorney s relative contribution to the benefit of the class..... The billing records and declarations from all Class Counsel, demonstrate that LRS Counsel performed the majority of the work in this case..... Mr. Granahan s billing records show a pattern of inconsistencies resulting in an inflated record of his contributions..... The pattern of overbilling is relevant to the Court s analysis of the reasonableness of fees..... If the Court considers a fee splitting agreement in its analysis, the Court should consider co-counsel s February, 0 exchange, not Mr. Ghazi s fee agreement.... If the Court determines that the disclosure in Mr. Ghazi s fee agreement is enforceable as a fee splitting agreement, then the Court must take into account and give effect to all of the language in Mr. Ghazi s fee agreement.... CONCLUSION...

3 0 0 TABLE OF AUTHORITIES CASES Allapattah Services, Inc. v. Exxon Corp. (S.D.Fl. 00) F. Supp. d... Blanchard v. Bergeron () U.S.... Center for Biological Diversity v. County of San Bernardino (00) Cal.App.th 0... Cohen v. Brown (00) Cal.App.th 0... Graham v. DaimlerChrysler Corp. (00) Cal.th... Hayes v. Haushalter (In re FPI/Agretech Sec. Litig.) (th Cir. ) 0 F.d..., Horsford v Board of Trustees of California State University (00) Cal.App.th... Ketchem v. Moses (00) Cal.th...,, McCown v. City of Fontana (th Cir. 00) F.d 0... O Connor v. Uber Techs., Inc. (N.D.Cal. Aug., 0) 0 U.S.Dist.LEXIS 0... Rebney v. Wells Fargo Bank (0) 0 Cal.App.d... Rey v. Madera Unified Sch. Dist. (0) 0 Cal. App. th... Serrano v. Priest (Serrano III) () Cal.App.d... Serrano v. Unruh (Serrano IV) () Cal.d..., Stokus v. Marsh (0) Cal.App.d... Woodland Hills Residents Ass n v. City Counsel (Woodland Hills II) () Cal. d... STATUTES Cal. Bus. & Prof. Code... Cal. Bus. & Prof. Code (b)... Cal. Code Civ. Proc RULES Cal. Rules of Prof. Conduct, Rule

4 0 0 INTRODUCTION This supplemental brief is submitted by Lohr Ripamonti & Segarich LLP ( LRS Counsel ) in response to the Court s August, 0, tentative ruling requesting additional briefing on certain issues raised in LRS Counsel s Motion for Attorneys Fees. Specifically, the Court requested further briefing regarding the following: () why it is appropriate to calculate LRS Counsel s lodestar utilizing its current hourly rates, () the reasonableness of the motion to disqualify Class Counsel in O Connor, and () allocation of fees among Class Counsel. SUPPLEMENTAL ARGUMENT A. LRS Counsel s lodestar is properly calculated utilizing LRS Counsel s 0 hourly rate. The Court requested clarification on why it is proper to calculate LRS counsel s lodestar utilizing the firm s 0 hourly rate. The Court also requested that LRS Counsel perform an additional calculation to determine LRS Counsel s lodestar had they utilized contemporaneous rates. By way of introduction, the present matter is one where no individual class member could afford to litigate on his or her own account, let alone on behalf of the entire class. Attorneys who accept these type of engagements receive no fee unless the client prevails. Often, and as with the present case, contingency fee attorneys must wait years until they receive any compensation for their work. By contrast, attorneys who earn hourly rates receive fees incrementally as their work is completed and can use those fees to support the legal practice. The Supreme Court recognized this dilemma in Missouri v. Jenkins, in which it approved the use of current market rates calculating a lodestar fee award, rather than rates in effect when services were rendered. Missouri v. Jenkins () U.S.,. In Missouri, the Court reasoned: Id. Clearly compensation received several years after services were rendered as it frequently is in complex [public interest] litigation is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment whether by the application of current rather than historic hourly rates or otherwise is within the contemplation of the statute. - -

5 0 0 California courts agree with this reasoning. A contingent fee must be higher than the fee for the same legal services as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans. Ketchem v. Moses (00) Cal.th, - (citation omitted). Therefore, both California and federal law recognize that contingent fee awards should be enhanced to compensate for delay in payment. While the Court may choose to compensate for Class Counsel s delay in payment by adjusting the requested lodestar, it is also appropriate to calculate Class Counsel s lodestar utilizing current hourly rates and to adjust the lodestar as appropriate under other applicable lodestar adjustment factors. See e.g. Serrano v. Unruh (Serrano IV) () Cal.d, - (In successive fee applications for prior work, the Court adjusted the past hourly rates to reflect increased experience and skill); Graham v. DaimlerChrysler Corp. (00) Cal.th, - (in adjusting a lodestar utilizing various lodestar factors, enhancement for delay in payment may be reduced if lodestar is based on current hourly rate). Accordingly, it is proper to compensate LRS Counsel using their current billing rates to account for the delay in payment in this three-and-one-half year old case, or alternatively a lodestar enhancement to do so. Consistent with these alternatives, and in response to the Court s request for further explanation as to the firm s hourly and historical billing rates, LRS Counsel has reviewed its billing records for all past cases from 0 to the present. Ripamonti Supp. Decl.. The firm generally re-evaluates its rates twice a year, (on January st and July st). Id. at. When the firm was first retained by Mr. Ghazi in March 0, its partner hourly rate was $, which had been in place since July 0. Id. On July, 0, the firm increased its rate to $00 per hour, and this rate was approved by San Francisco, Contra Costa, and San Mateo Superior Courts, in five class action matters. Id. at. On January, 0, the firm increased its rate to $ per hour, based on the prevailing market rate for class action matters in San Francisco. Id. This rate Declaration of Roberto Ripamonti in Support of Supplemental Briefing in Support of Class Counsels Motion for Attorneys Fees (hereafter Ripamonti Supp. Decl.). - -

6 0 0 was approved by San Francisco Superior Court in one class action matter. Id. Finally, the firm slightly increased its rate to its current $00 per hour rate on January, 0. Id. at. Using the rates and time periods described above, LRS Counsel re-calculated the contemporaneous rates for each entry, appropriate to its time period. The total lodestar using LRS Counsel s contemporaneous fees is $,0.0. Id. at. B. Preparing the motion to disqualify class counsel in O Connor was reasonable Class counsel billed. hours related to preparing a motion to disqualify class counsel in the O Connor matter. Class counsel believes these hours were necessary and reasonable in light of the nature of the proposed O Connor settlement. On April, 0, counsel in O Connor filed a motion for preliminary approval to settle that case, as well as the claims in other pending cases in state and federal court. The settlement explicitly referenced these cases, including Mr. Ghazi s case. (Lohr Supp. Decl. Ex., page ). As part of the settlement, counsel in O Connor had agreed to file an amended complaint that copied, essentially verbatim, the claims alleged in Mr. Ghazi s case. The settlement also anticipated the distribution of a single fund that was to be apportioned between California Uber drivers and separate class of Massachusetts Uber drivers. The fund, while meant to be consideration for the compromise of all employment claims in each state, was apportioned solely for the claims alleged by counsel in O Connor. Further, in subsequent filings, class counsel for O Connor indicated it valued many of the claims in the related cases at zero, including Mr. Ghazi s case. Class Counsel viewed this settlement as essentially a reverse auction of the claims in the related cases. Furthermore, O Connor counsel s justification for its zero value of Mr. Ghazi s case that the claims would likely be preempted under the Workers Compensation Act s exclusivity rule was simply wrong: preemption applies only when employers actually secure With respect to Mr. Ghazi s case, in the Joint Supplemental Briefing in Support of Preliminary Approval of Settlement, Class counsel opined: Because it is unclear whether Sections 00. and can be enforced by a private plaintiff through the UCL, and because of the potential preemption arguments that Uber would make under the Workers Compensation Act s exclusivity rule, Plaintiffs believe this claim was unlikely to succeed. (Lohr Supp. Decl. Ex., :-). - -

7 0 0 workers compensation for employees. Therefore it appeared that the analysis of Mr. Ghazi s claims was perfunctory at best. In addition, O Connor counsel had also filed a mass action in this court, representing approximately 0 individual drivers on the same misclassification claims. Based on these facts, Class Counsel prepared an objection on behalf of Mr. Ghazi, who was a putative class member in the proposed settlement, and also moved to intervene in O Connor to protect Mr. Ghazi s UCL claims in the proposed settlement in the event his objection was overruled. As a putative plaintiff-in-intervention, he moved to disqualify counsel in O Connor on the basis that it had negotiated the settlement on behalf of disparate and conflicted groups of class members, which created fatal conflicts moving forward, and also did so without proper safeguards to ensure due process. To be clear, in Class Counsel s opinion, it was important to highlight this issue beyond a mere objection. At that time, a motion for preliminary approval had already been filed and Judge Chen appeared to be receptive to the consolidation of claims. It was crucial to establish a record of why it was an extremely unorthodox settlement, and alert the Court to the fundamental conflicts raised by the settlement. There were also legitimate concerns that O Connor counsel was simply overreaching, and was willing to sacrifice Mr. Ghazi s claims to facilitate settlement. Ultimately, the settlement was not approved. As a result, Class counsel s motions to intervene and to disqualify were denied as moot. However, Judge Chen, in discussing the motions in his order, acknowledged that the proposed interveners can protect and indeed have protected their interest by objecting to the settlement. O Connor v. Uber Techs., Inc. (N.D.Cal. Aug., 0) 0 U.S.Dist.LEXIS 0, at *, *. And to be clear, the O Connor settlement, and in particular its proposed global relief, was fundamentally a litigation tactic by Uber. California law recognizes that, in fee shifting cases, a defendant cannot escape liability for fees simply because Plaintiff litigated its case with vigor. Defendants are free to adopt any defense strategy they choose. But, they must pay the costs of aggressive strategies imposed on the prevailing plaintiffs. Serrano IV, Cal.d at -; Stokus v. Marsh (0) Cal.App.d, -. This concept should be applied here. Indeed, a rule to the contrary would be an unjustifiable intrusion on class counsels duty to - -

8 0 0 zealously litigate on behalf of the class, and would also intrude on class counsels right to prosecute the case as counsel deems appropriate given the facts presented. C. The Court should award fees based upon Class Counsel s lodestar, guided by the reasonableness of the fees requested. Finally, at the hearing, the Court invited argument on whether it is appropriate to split the Class Counsel fee award equally between LRS Counsel and Mr. Granahan due to language in the retainer agreement between Class Counsel and Mr. Ghazi. LRS Counsel believes that the Court s reference to the retainer agreement is misplaced. Specifically, while the Court may consider a fee splitting agreement in its award of fees, such an agreement is not determinative: rather, the Court must look primarily to the relative contributions of the attorneys. Moreover, even if Class Counsels fee splitting agreement was determinative, it actually demonstrates an agreement for equal pay for equal work, not a mere 0-0 split. Finally, if the Court intends to enforce the retainer agreement as a fee agreement between Class Counsel, it must give effect to the entire contract, which reiterates analyzing the work completed, not a mere percentage.. The Court may not apportion fees on a fee agreement alone, but must fully consider each attorney s relative contribution to the benefit of the class. The present fee motion is brought under the private attorney general doctrine codified in Cal. Code Civ. Proc. 0.. The California Supreme Court has held that the purpose of the private attorney general doctrine is to encourage suits that enforce significant public policies or that otherwise benefit a broad class of people by awarding reasonable attorneys fees to those who successfully bring such suits. Woodland Hills Residents Ass n v. City Counsel (Woodland Hills II) () Cal. d, -, citing Serrano v. Priest (Serrano III) () Cal.App.d,. Furthermore, the U.S. Supreme Court has made clear that a contingent fee agreement with an attorney has little or no bearing on determining what a reasonable fee is, nor does a While the statute language is permissive, The California Supreme Court has also instructed, however, that attorney fee awards under section 0. should be fully compensatory, and absent circumstances rendering the award unjust, an award should ordinarily include compensation for all the hours reasonably spent. Center for Biological Diversity v. County of San Bernardino (00) Cal.App.th 0, ; citing Ketchum, Cal.th at (additional citation omitted). - -

9 0 0 contingent fee agreement necessarily place a cap on fees awarded by a Court. Blanchard v. Bergeron () U.S.,. As stated in Blanchard: Id. As we understand s provision for allowing a reasonable attorney s fee, it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. Similarly, as stated by the Ninth Circuit, [t]here is very little case law concerning the allocation of attorneys fees among co-counsel. That which does exist indicates that district courts may refuse to accept a fee allocation agreement whenever there is good cause to do so. Hayes v. Haushalter (In re FPI/Agretech Sec. Litig.) (th Cir. ) 0 F.d,. Thus, the fundamental determination to be made by the Court is whether the fees requested are reasonable, not whether or not the fees requested comport with an agreement between attorneys. This reasoning underlies the governing California rule stated in Mark v. Spencer, which requires the Court to look at the actual efforts of counsel, rather than simply relying on a fee splitting agreement. Mark v. Spencer (00) Cal.App.th, 0 ( courts may not rely solely on a fee distribution agreement to allocate fees between class counsel. Instead, an award of attorney fees in class action litigation must be tied to counsel s actual efforts to benefit the class. ). This rule derives from the fact that fee awards based upon the reasonableness of the fee must necessarily look to the work actually performed. Rebney v. Wells Fargo Bank (0) 0 Cal.App.d, (affirming that an award of attorney fees in class action litigation must be related to counsel s actual efforts to benefit the class). Therefore, as with the attorneys in Mark v. Spencer, the Court here must look at the actual efforts of the attorneys. Mark, Cal.App.th at 0. ( [A] court may not base its allocation of attorney fees between Mark and Spencer solely on the fee-splitting agreement, but must fully consider the attorneys actual efforts to benefit the class members. ).. The billing records and declarations from all Class Counsel, demonstrate that LRS Counsel performed the majority of the work in this case. Even so, the Court has great discretion in determining whether fees are reasonably incurred. Center for Biological Diversity, Cal.App.th at. - -

10 0 0 The billing records and declarations of all class counsel make clear that LRS Counsel performed the majority of the work in this matter. Specifically, the billing records submitted by counsel show that LRS Counsel billed for approximately percent of the work in this matter, while Mr. Granahan billed for percent of the work. However, drilling down into high-level tasks performed shows that LRS Counsel was responsible for percent of the communications with Uber s counsel, percent of the complaint drafting, percent of the appellate brief drafting, percent of settlement negotiations, and % of all legal document drafting in the case. Furthermore, these high-level numbers are simply the aggregate sums of the data submitted by counsel and do not account for the quality of time billed. The declarations of counsel describing the work performed better illuminate the facts that LRS Counsel was primarily responsible for prosecuting this case. Regarding specific work performed, a review of Mr. Granahan s declaration shows he was primarily involved with prefiling case research (Granahan Decl. ), research relating to occupational accident coverage (Granahan Decl. ), and research broadly relating to the costs of various types of insurance coverage that might be procured by working drivers. (Granahan Decl. ). While Mr. Granahan also states that he conducted a thorough investigation into the facts and law relating to the present matter, he fails to describe in any detail exactly what his investigation consisted of. (Granahan Decl. 0). By contrast, LRS Counsel s declarations, filed concurrently with LRS Counsel s fee motion, describe in detail the substantial work performed by LRS Counsel. The portion of Mr. Segarich s declaration devoted to the discussion of work performed spans pages, and describes all major work performed, and how it was assigned. (Segarich Decl. -). Likewise, Mr. Lohr s declaration describes in detail what work actually occurred in this matter. Declaration of Conor Granahan in Support of Motion for Final Approval of Class Action Settlement; Motion for Attorneys Fees and Costs; Response to Objection to Class Settlement Indeed, despite claiming to have spent some. hours researching and monitoring the filings and hearings in the O Connor matter (See Lohr Supp. Decl. Ex. ), he incorrectly states in his declaration that that the O Connor matter implicated an FLSA claim, and that Judge Chen certified a class in O Connor under the FLSA. (Granahan Decl. ). In fact, the primary claims at issue in O Connor are the failure to pay tips under California Labor Code, and unreimbursed expense claims under California Labor Code 0. And these are the two claims Judge Chen ultimately certified. There are no FLSA claims in O Connor. - -

11 0 0 (Lohr Decl. -). These declarations show that LRS Counsel was primarily responsible for the prosecution of this case, performed the majority of the work, and performed nearly all of the work related to the appeal, the settlement, and certification of the settlement class. LRS Counsel also submitted 0 pages of billing records further describing the work performed. Finally, Mr. Granahan s declaration does not match his billing records. Mr. Granahan submitted billing records totaling. hours. Yet, Mr. Granahan s declaration, while describing a few significant tasks relating to the litigation, fails to detail work that would justify the significant number of hours billed. This lack of detail is also reflected in his billing records that contain significant inconsistencies, which must impact the Court s analysis of reasonableness.. Mr. Granahan s billing records show a pattern of inconsistencies resulting in an inflated record of his contributions. Generally, the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. Horsford v Board of Trustees of California State University (00) Cal.App.th,. However, An attorney fee award should [only] include compensation for all hours reasonably spent [, which] means padding in the form of inefficient... efforts is not subject to compensation. Rey v. Madera Unified Sch. Dist. (0) 0 Cal. App. th, (internal quotation marks and citations omitted). Therefore, in determining what number of hours are reasonably compensable, the court should exclude hours that are excessive, redundant, or otherwise unnecessary. McCown v. City of Fontana (th Cir. 00) F.d 0, 0 (citation omitted). To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether. Ketchum, Cal. th at. While LRS Counsel does not have sufficient information to assess each billing entry, it appears that Mr. Granahan s billing records are inflated and should be proportionally discounted. As a threshold matter, the billing records contain a single 0. billing entry in the entire. years of litigation. Further, Mr. Granahan s billing records, consisting of entries, contain only entries that are billed at 0. hours. By contrast, LRS counsel s billing records contain hundreds of such entries ( entries of 0., and entries of 0. hours), since litigation that is truly - -

12 0 0 contemporaneously billed will necessarily produce many such entries, reflecting s, phone calls, brief reviews of documents, and other short but properly billable tasks. Further, LRS counsel waived. hours as non-billable or duplicative work, whereas Mr. Granahan undertook no such analysis and waived no hours of any kind. As to specific entries, Mr. Granahan s billing records reveal significant errors that tend to inflate the amount of time worked. There errors include excessive billing for certain activities, entries that appear to be erroneous, and billings that do not appear to be reasonably related to the prosecution of the instant case. While it is understandable that billing records of substantial length may contain errors, many of the errors in Mr. Granahan s records appear to be systematic. Excessive Billing Entries During the litigation, Class Counsel attended hearings in this Court, and in federal court. After reviewing Class Counsel s billing records it is clear Mr. Granahan billed substantially more than LRS Counsel in preparing for and attending these hearings, as shown below: CDG Billing Entry Time LRS Billing Entries Time //0 Attend CMC at SF Superior.0 ALS //0 Attend Case Management 0. Court Conference //0 Attend CMC hearing at SF. ALS //0 Attend Case Management. Superior Conference //0 Attend hearing on petition to. ALS //0 Appear for hearing on 0. compel arbitration petition for motion to compel arbitration //0 Attend hearing at SF Superior. JSL //0 Attend hearing on 0. one shot brief opposition motion to stay //0 Attend hearing for preliminary approval in O Connor; confer with multiple objecting counsel. ALS //0 Appeared at O Connor hearing for intervention; preliminary approval. //0 Attend hearing before Judge Karnow regarding individual settlement; confer with counsel before and after hearing //0 Attend hearing for preliminary approval; confer with counsel before and after //0 Attend hearing for renewed preliminary approval; confer with counsel before and after //0 JSL: Attend motion to dismiss //0 ALS: Attend Hearing on Motion to seal and application to dismiss.0 //0 ALS: Appear for preliminary approval hearing. //0 ALS: Attend motion for preliminary approval //0 JSL: Attend hearing preliminary approval

13 0 0 In total, Mr. Granahan billed at least double, and often much more, than LRS Counsel for attending the same hearings, even at hearings where LRS Counsel already had more than one attorney attending a hearing. It is also important to note Mr. Granahan had separate billings to prepare for these hearings. Mr. Granahan frequently billed substantial time for hearings in which he was a passive observer; and specifically, he billed. hours in total preparing for hearings despite the fact that Mr. Granahan argued only one motion in this matter. This is contrasted by LRS Counsel who billed. hours preparing for these hearings combined, and was responsible for arguing and appearing for each of these hearings with a single exception. Drafting Documents These aggressive billing practices also appear to have been applied to other time entries. Specifically, Mr. Granahan appears to have billed an excessive amount of time on preparing and reviewing documents. While LRS Counsel was responsible for all major filings in this matter, Mr. Granahan was solely responsible for certain documents, including declarations for himself, and declarations for Mr. Ghazi relating to preliminary and final approval. Mr. Granahan frequently billed multiple hours to draft - page declarations. For example, he billed. hours to prepare Mr. Ghazi s -page declaration in support of preliminary approval (Lohr Supp. Decl. Ex. ). And Mr. Granahan billed. hours to prepare his own page declaration for the same motion (Lohr Supp. Decl. Ex. ). These entries appear to overstate the reasonable amount of time for preparing these declarations. Other examples are identified below: CDC Billing Entry Time Comment //0 Draft Granahan declaration for motion to dismiss. The one page declaration is attached to Lohr Supp. Decl. as Ex.. //0 Draft Ghazi declaration for motion to dismiss. The two page declaration is attached to Lohr Supp. Decl. as Ex.. //0 finalize declaration of Abdo Ghazi ISO preliminary approval //0 Draft declaration for Abdo Ghazi ISO preliminary approval.0. The three page declaration is attached to Lohr Supp. Decl. as Ex.. //0 finalize declaration of C. Granahan ISO preliminary approval //0 Draft COG declaration ISO preliminary approval brief. //0 Draft declaration for David Hart. The one page declaration is attached to Lohr.0 The three page declaration is attached to Lohr Supp. Decl. as Ex

14 0 0 ISO preliminary approval brief Supp. Decl. as Ex.. //0 Prepare declaration of A. Ghazi ISO final approval. The four page declaration is attached to Lohr Supp. Decl. as Ex.. //0 Prepare letter to Uber regarding opt out of arbitration for client A. Ghazi.0 The two sentence letter is attached to Lohr Supp. Decl. as Ex.. //0 Prepare factual allegations for complaint.0 On March, 0, Mr. Granahan ed his factually summary. The actual factual summary consisted of one page. See Lohr Supp. Decl. as.. The overbilling was not limited to drafting documents; Mr. Granahan billed a substantial number of hours reviewing documents in this matter, many of questionable necessity. In total, Mr. Granahan billed. hours reviewing documents, representing, approximately a quarter of Mr. Granahan s total. This is remarkable because LRS Counsel, who performed over three quarters of the total work in this case billed only. hours reviewing documents. Furthermore, the billing entries submitted by Mr. Granahan show a pattern of excessive or aggressive billing. Following are several examples: CDG Billing Entry Time Comment //0 Review amended petition to compel arbitration.0 The Page Amended Notice is attached to Lohr Supp. Decl. as Ex.. //0 Review and edit stipulated request to extend briefing for opposition to motion to stay. The Stipulation, consisting of sentences, is attached to Lohr Supp. Decl. as Ex. 0. //0 Review Defense notice of submission of appeal. The Notice, consisting of sentence, is attached to Lohr Supp. Decl. as Ex.. //0 Review request to consolidate appeal with Richardson matter. The Page Stipulation is attached to Lohr Supp. Decl. as Ex.. //0 Review Appellate court order re consolidation of appeal with Richardson. The Order, consisting of sentences, is attached to Lohr Supp. Decl. as Ex.. //0 Review Appellate court s order denying motion to stay appeal. The Page order is attached to Lohr Supp. Decl. as Ex.. //0 Review Uber statement in support of O Connor settlement. The Page Statement is attached to Lohr Supp. Decl. as Ex.. Erroneous Entries In addition, Mr. Granahan s billing shows records that appear to be clearly erroneous. These entries are identified below. CDG Billing Entry Time LRS Billing Entries Time //0: Meeting with co-counsel re: causes of action and investigation strategy.. //0: Meeting with co-counsel regarding strategy for pleadings, public relations, and PAGA letters..0 //0: Conference with LRS co-counsel //0: Conference call with C. attorneys regarding strategy for filing complaint;.0 Granahan re: complaint review

15 0 0 media concerns. //0: Confer with co-counsel re strategy for coordination of case with Price case in LA Superior..0 //0: Pre-conference call with co-counsel re call with opposing counsel for joint CMC..0 //0: Conference call with opposing counsel re joint CMC statement and conference..0 /0/0: Conference call with co-counsel re strategy for CMC conference.0 //0: Attend hearing for preliminary approval in O Connor; confer with multiple objecting counsel.. //0: Discuss strategy with co-counsel for settlement offer to present to Uber re occupational accident policies.. //0: Conference call with counsel for consolidated appeal re status of brief 0. /0/0: Conference with A. Segarich and J. Lohr remediation strategy.0 /0/0: Conference call with co-counsel re strategy for mediators call. 0. /0/0: Confer with co-counsel following mediator call. 0. //0: Attend and travel to and from mediation; confer with client thereafter..0 //0: Confer with A. Segarich re McGill decision and upcoming FCRA settlement..0 /0/0: Ghazi -counsel conference call re status of case 0. //0: Meet with co-counsel to discuss strategy and division of work.. Time Not Reasonably Related to this Case //0: Call with C. Granahan re: coordination of case, extension of time for responsive pleading. 0. //0: Call with C. Granahan re: prep for CMC meet and confer. 0. //0: CMC meet and confer call with OC. 0. LRS Counsel has no record of any such call taking place and did not bill for it //0: Appeared at O Connor hearing re: motion for intervention, preliminary approval.. //0: Calls with C. Granahan re: settlement strategy after Mohamed ruling. 0. //0: Calls with C. Granahan re: settlement strategy, insurance expert. 0. This conference was an after work happy hour and was not billed for. 0.0 /0/0: Calls with C. Granahan re: mediation strategy, prep. 0. //0: Attend Mediation.0 //0: Call with C. Granahan re: mediation/settlement strategy. 0. /0/0: Call with C. Granahan re: next litigation steps, client 0. This was a short meeting re: division of labor and lasted no more than hour. LRS Counsel did not bill for this meeting. 0.0 Finally, in addition to the entries above that appear to overstate the work performed, at least billing entries appear to be for work that is not reasonably related to the present litigation. In total,. hours appear to have been inappropriately billed because the work related to soliciting firms to co-counsel with Mr. Granahan, work performed on Mr. Ghazi s individual case, or work monitoring and reviewing other cases that were irrelevant to Mr. Ghazi s case. These billing entries are identified and attached as Exhibit of the Supplemental Declaration of Jason Lohr.. The pattern of overbilling is relevant to the Court s analysis of the reasonableness of fees.

16 0 0 The inaccuracies identified above are relevant to both the reasonableness of the attorneys fees claimed by Mr. Granahan, but also are relevant to a determination of the relative contributions by co-counsel in the present case. For example, if the Court were to determine that Mr. Granahan s billing required reduction, Mr. Granahan s overall contribution in this case would necessarily require an adjustment. Hayes similarly addressed the issue of the relative contributions of co-counsel: [co-counsel s] argument is without merit because it ignores the record evidence that, regardless of primary responsibility, LCH was far more involved than Chuck in the actual settlement of the case against the attorney defendants, while Chuck was not at all involved in litigating the case against Arthur Young. Hayes, 0 F.d at. And, as another court stated, citing Hayes, in rejecting a fifty-fifty allocation between firms: Merely showing up and sitting in court, or at strategy sessions, does not constitute an equal sharing of the workload. Notwithstanding the number of hours purportedly spent by the firm during the second phase of the case, I conclude that Pertnoy & Solowsky s substantive contribution does not exceed five percent of the allocation for the second phase of the case. During his testimony, Mr. Pertnoy suggested that the cost contribution made by his law firm justifies a fifty-fifty allocation between the two firms. I reject this contention because it is not substantiated by the greater weight of the more credible evidence. Allapattah Services, Inc. v. Exxon Corp. (S.D.Fl. 00) F. Supp. d, - (emphasis added). Therefore, the Court should consider these inaccuracies when it is determining the reasonableness of hours billed.. If the Court considers a fee splitting agreement in its analysis, the Court should consider co-counsel s February, 0, exchange, not Mr. Ghazi s fee agreement. As discussed above, the Court may consider a fee splitting agreement in its fee award analysis. Although a client must consent to fee-splitting among attorneys in writing, an agreement between the two attorneys need not be in writing or be signed by both attorneys. Cohen v. Brown (00) Cal.App.th 0. Class Counsel s actual fee/work agreement was initially an oral agreement that was later memorialized in an exchange that took place February, 0, not in Mr. Ghazi s retainer. The exchange clearly anticipates equal pay - -

17 0 0 for equal work. In the exchange, Mr. Granahan proposes a 0/0 work/fee arrangement, and acknowledged that the fee may be calculated utilizing the lodestar analysis. Lohr Supp. Decl. Ex.. LRS Counsel responded and accepted this proposition. Id. While Class Counsel disclosed this agreement to Mr. Ghazi pursuant to Cal. Rules of Prof. Conduct, Rule -00, the language in the fee agreement is clearly a disclosure meant to comply with Rule -00 (disclosing Class Counsel s prior agreement) and not more. To be clear, Mr. Ghazi s fee agreement is a separate agreement regulated by Cal. Bus. & Prof. Code, with distinct statutory and regulatory requirements. In fact the second sentence of the agreement alerts anyone reading the document that the agreement is meant to serve solely as a client fee agreement under Section : Business and Professions Code requires a written fee agreement in cases such as yours and this letter is intended to meet the requirements of that section. Lohr Decl. Ex. C. Accordingly, the fee agreement with Mr. Ghazi and the fee/work agreement between co-counsel are two separate agreements. The agreement between co-counsel related to fee sharing is memorialized in their 0 exchange. See Lohr Supp. Decl. Ex.. This agreement was disclosed in Mr. Ghazi s fee agreement, nothing more. To conflate the two agreements would be error. Furthermore, the declarations of Mr. Granahan makes clear that he agrees that the disclosure required under both Section, and Rule -00 was merely that: a disclosure: Pursuant to Rule -00, I fully disclosed in writing to Mr. Ghazi that a division of fees would be made in this case and the terms of such division. (Granahan Decl. ).... This disclosure was meant to appraise Mr. Ghazi of Class Counsel s agreement In order to comply with Rules of Professional Conduct, Rule -00-Financial Arrangements Among Lawyers, both firms needed to disclose the fee-splitting agreement to the client and obtain client consent. (Granahan Decl. ). Section and Rule -00 require full disclosure of any fee splitting arrangement between lawyers who do not work at the same firm. Specifically, Rule -00 states: (A) A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member unless: - -

18 0 0 () The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division;... (emphasis added). Furthermore, failure to make this disclosure renders the agreement voidable by the client. Cal. Bus. & Prof. Code (b). Therefore, LRS Counsel was bound to disclose to Mr. Ghazi the agreement reached in February 0. If the Court interprets this disclosure in a manner that prejudices LRS Counsel s ability to seek reasonable fees, it would essentially punish LRS Counsel for following the law.. If the Court determines that the disclosure in Mr. Ghazi s fee agreement is enforceable as a fee splitting agreement, then the Court must take into account and give effect to all of the language in Mr. Ghazi s fee agreement. The language cited by Mr. Granahan to support his windfall request for fees arises from Section of Mr. Ghazi s fee agreement which states: This matter will be handled by multiple lawyers or law firms. This means that each law firm will assume joint responsibility for the representation. The law firms representing you in this matter are Lohr Ripamonti LLP and the Law Offices of Conor Granahan. You understand that all fees in this matter are governed by the terms of this fee agreement and will be divided equally between these two firms. The division of fees will occur even if counsel are required to submit fee applications individually. Lohr Ripamonti LLP and the Law Offices of Conor Granahan shall both have equal duties and responsibilities in the litigation and will advance all agreed upon costs and split all awarded costs evenly. This division of fees will not increase the fee due from Client should Attorney obtain a recovery on behalf of Client. (Emphasis added) While Mr. Granahan relies on the language stating that fees will be divided equally between these two firms, he fails to address the language requiring: equal duties and responsibilities in the litigation. To be clear, the language does not indicate that fees will be split evenly regardless of the contributions of counsel, it states that both firms will have equal duties and responsibilities in the litigation: equal pay for equal work. Therefore the Court must give effect to all of the language in Mr. Ghazi s fee agreement instead of merely relying on two sentences out of context. County of Marin v. Assessment Appeals Bd. of Marin County () Cal.App.d, The language also requires both firms to advance costs equally, which also did not occur. - -

19 0 0 ([T]he contract must be construed as a whole and the intention of the parties must be ascertained from the consideration of the entire contract, not some isolated portion. ). And it is not only the language in the paragraph in Section that must be considered: the entirety of the fee agreement is key to its proper interpretation, should the Court choose to enforce Mr. Ghazi s fee agreement as a fee-splitting agreement. Accordingly, the Court must also give effect to the rest of the language in Section that states: You understand that we may make an application to the Court for an award of attorneys fees and costs as a prevailing party. You further understand that in making such application, we may, at our sole discretion and depending on the circumstances of the cases (sic), calculate our fees via the lodestar method, reflecting the number of hours worked multiplied by their reasonable hourly rate... (Emphasis added) The Court must also take into consideration the language in Section which states: You understand that, should this matter be resolved as a Class Action, the Court overseeing the litigation must approve any and all settlements of class wide claims, and that your acceptance of any settlement agreement does not guarantee the settlement will be approved. You further understand that, should this matter be resolved as a Class Action, our attorney fees will be determined by and approved by the Court overseeing the litigation. Therefore, if Mr. Ghazi s fee agreement is read as a fee-splitting agreement, then cocounsel has also agreed that they may, at co-counsel s discretion, make an application for fees based upon the lodestar, and that ultimately attorneys fees will be determined by the Court. And in fact, this is precisely what Mr. Ghazi, and co-counsel, agreed to do in this settlement. In sum, the provisions of Mr. Ghazi s fee agreement, if read in its entirety, track the agreement between co-counsel in February 0. Mr. Ghazi s fee agreement, anticipates that cocounsel would perform an equal amount of work, and would receive and equal amount of pay. Alternatively, co-counsel, at their discretion, could move for fees based upon counsel s lodestar. Therefore, pursuant to the plain language of either of these documents, co-counsel could choose to seek fees based upon their respective lodestar, which co-counsel ultimately chose to do. CONCLUSION It is appropriate for LRS Counsel to request fees based on its current hourly rates, although the Court may choose to modify LRS Counsel s lodestar to account for a delay in - -

20 0 payment. And as discussed in this brief, Class Counsel s motion to disqualify class counsel in O Connor was a reasonable litigation decision given the facts of the proposed settlement. And in any event, Class Counsel has the duty, and right, to make such litigation decisions. Regarding the proper allocation of fees between co-counsel, the answer lies in the actual efforts of counsel. Even so, if the Court is inclined to deviate from the lodestar method of calculating fees under the lodestar and rely on co-counsel s agreement, the Court must give effect to the entirety of co-counsel s agreement. There is nothing that suggests that LRS agreed to perform over percent of the work in this case in exchange for half of the reasonable fees. Each of the documents contemplates equal pay for equal work. And that is fundamentally what LRS Counsel has requested, and should be awarded here. Respectfully submitted, 0 DATED: August 0, 0 LOHR RIPAMONTI & SEGARICH LLP Jason S. Lohr Attorneys for Plaintiff Abdo Ghazi and the Settlement Class - -