UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Transcription

1 Case 2:06-cv JLL-MF Document 155 Filed 01/23/15 Page 1 of 3 PageID: 3019 Stephen L. Dreyfuss, Esq. Matthew E. Moloshok, Esq. HELLRING LINDEMAN GOLDSTEIN & SIEGAL LLP One Gateway Center Newark, New Jersey Telephone: (973) Facsimile: (973) Court-Appointed Class Counsel [Additional Class Counsel Listed on Signature Page.] UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RALPH DEMMICK, on behalf of himself and all others similarly situated; DONALD BARTH, on behalf of himself and all others similarly situated, v. Plaintiffs, CELLCO PARTNERSHIP, a Delaware General Partnership doing business as Verizon Wireless; and DOES 1 through 10, Civ. Act. No (JLL) Honorable José L. Linares PLAINTIFFS MOTION FOR ORDER GRANTING INCENTIVE AWARDS TO CLASS REPRESENTATIVES Hearing Date: March 30, 2015 Hearing Time: 10:00 a.m. ORAL ARGUMENT REQUESTED Defendant.

2 Case 2:06-cv JLL-MF Document 155 Filed 01/23/15 Page 2 of 3 PageID: 3020 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 30, 2015 at 10:00 a.m., or as soon thereafter as counsel may be heard, before the Honorable José L. Linares, U.S.D.J., at the Martin Luther King, Jr. Federal Building and Courthouse, 50 Walnut Street, Newark, New Jersey, plaintiffs Ralph Demmick and Donald Barth (together, Plaintiffs ) shall move this Court for an Order Granting Incentive Awards to Class Representatives in the amount of $15,000 to each of the Plaintiffs to compensate them for the time and effort that they devoted, and the services that they provided, as class representatives in this action. PLEASE TAKE FURTHER NOTICE that, in support of their motion, Plaintiffs will rely upon the Memorandum of Law submitted herewith as well as the Declarations of Ralph Demmick and Donald Barth. Dated: January 23, 2015 HELLRING LINDEMAN GOLDSTEIN & SIEGAL LLP By s/ Stephen L. Dreyfuss, Esq. Stephen L. Dreyfuss, Esq. Matthew M. Moloshok, Esq. One Gateway Center Newark, New Jersey Telephone: (973) Facsimile: (973)

3 Case 2:06-cv JLL-MF Document 155 Filed 01/23/15 Page 3 of 3 PageID: 3021 FOLEY BEZEK BEHLE & CURTIS, LLP Peter J. Bezek, Esq. (admitted pro hac vice) Robert A. Curtis, Esq. (admitted pro hac vice) 15 West Carrillo Street Santa Barbara, California Telephone: (805) Facsimile: (805) ARIAS OZZELLO & GIGNAC LLP J. Paul Gignac, Esq. (admitted pro hac vice) 115 S. La Cumbre Lane, Suite 300 Santa Barbara, California Telephone: (805) Facsimile: (805) Court-Appointed Class Counsel 3

4 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 1 of 5 PageID: 3022

5 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 2 of 5 PageID: 3023

6 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 3 of 5 PageID: 3024

7 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 4 of 5 PageID: 3025

8 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 5 of 5 PageID: 3026

9 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 1 of 5 PageID: 3027

10 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 2 of 5 PageID: 3028

11 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 3 of 5 PageID: 3029

12 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 4 of 5 PageID: 3030

13 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 5 of 5 PageID: 3031

14 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 1 of 10 PageID: 3032 Stephen L. Dreyfuss, Esq. Matthew E. Moloshok, Esq. HELLRING LINDEMAN GOLDSTEIN & SIEGAL LLP One Gateway Center Newark, New Jersey Telephone: (973) Facsimile: (973) Court-Appointed Class Counsel [Additional Class Counsel Listed on Signature Page.] UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RALPH DEMMICK, on behalf of himself and all others similarly situated; DONALD BARTH, on behalf of himself and all others similarly situated, v. Plaintiffs, CELLCO PARTNERSHIP, a Delaware General Partnership doing business as Verizon Wireless; and DOES 1 through 10, Civ. Act. No (JLL) Honorable José L. Linares MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR ORDER GRANTING INCENTIVE AWARDS TO CLASS REPRESENTATIVES Hearing Date: March 30, 2015 Hearing Time: 10:00 a.m. Defendant. Stephen L. Dreyfuss, Esq. Matthew E. Moloshok, Esq. HELLRING LINDEMAN GOLDSTEIN & SIEGAL LLP One Gateway Center Newark, New Jersey Telephone: (973) Facsimile: (973) i

15 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 2 of 10 PageID: 3033 Peter J. Bezek, Esq. (admitted pro hac vice) Robert A. Curtis, Esq. (admitted pro hac vice) FOLEY BEZEK BEHLE & CURTIS, LLP 15 West Carrillo Street Santa Barbara, California Telephone: (805) Facsimile: (805) J. Paul Gignac, Esq. (admitted pro hac vice) ARIAS OZZELLO & GIGNAC LLP 115 S. La Cumbre Lane, Suite 300 Santa Barbara, California Telephone: (805) Facsimile: (805) ii

16 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 3 of 10 PageID: 3034 TABLE OF CONTENTS Page I. INTRODUCTION...1 II. ARGUMENT..1 A. Incentive Awards Are Appropriate For Class Representatives...1 B. Plaintiffs Performed Services That Merit Compensation...2 C. The IncentiveAwards Requested Are Reasonable In Amount And In Line With Those Granted By Other Courts...4 III. CONCLUSION...5 iii

17 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 4 of 10 PageID: 3035 TABLE OF AUTHORITIES Cases Page(s) Bredbenner v. Liberty Travel, Inc., 2011 WL (D.N.J. Apr. 8, 2011)...1 Enterprise Energy v. Columbia Gas Transmission, 137 F.R.D. 240 (S.D. Ohio 1991)... 4 Hicks v. Stanley 2005 WL (S.D.N.Y. Oct. 24, 2005) 2 In re LG/Zenith Rear Projection TV Class Action Litig., 2009 WL (D.N.J. Feb. 18, 2009) 5 In re Ins. Brokerage Antitrust Litigation, 579 F.3d 241 (3d Cir. 2009)... 4 In re Mego Fin. Corp. Sec. Litig. v. Nadler, 213 F.3d 454 (9 th Cir. 2000) 4 In re SmithKline Beacham Corp. Sec. Litig., 751 F. Supp. 525 (E.D. Pa. 1990)...4 Whitford v. First Nationwide Bank, 147 F.R.D. 135 (W.D. Ky. 1992)..5 iv

18 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 5 of 10 PageID: 3036 I. INTRODUCTION Plaintiffs Ralph Demmick and Donald Barth (together, Plaintiffs ) move this Court for an Order Granting Incentive Awards to Class Representatives in the amount of $15,000 to each of the Plaintiffs to compensate them for the time and effort that they devoted, and the services that they performed, as class representatives in this action. For the reasons explained herein, Plaintiffs submit that the time and effort devoted to this litigation by Plaintiffs, and the services performed by them as class representatives, contributed to the successful resolution of this litigation and conferred a significant benefit on the Settlement Class Members for which they should be rewarded. Accordingly, the Court should grant incentive awards to Plaintiffs in the amount of $15,000 each. II. ARGUMENT A. Incentive Awards Are Appropriate For Class Representatives. Incentive awards for class representatives promote the public policy of encouraging individuals to undertake the responsibility of representative lawsuits. It is clear that [c]ourts have ample authority to award incentive or service payments to particular class members where the individual provided a benefit to the class or incurred risks during the course of litigation. Bredbenner v. Liberty Travel, Inc., 2011 WL , at *23 (D.N.J. Apr. 8, 2011) (collecting cases). 1

19 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 6 of 10 PageID: 3037 See also, Hicks v. Stanley, 2005 WL , at *10 (S.D.N.Y. Oct. 24, 2005) (courts grant incentive awards both to reimburse the named plaintiffs for expenses incurred through their involvement with the action and lost wages, as well as to provide an incentive for such plaintiffs to remain involved in the litigation and to incur such expenses in the first place. ) B. Plaintiffs Performed Services That Merit Compensation. Plaintiffs have been actively involved with this litigation throughout the nine years that it has been ongoing. Plaintiffs each estimate that, during the course of this litigation, they have spent at least 100 hours performing the following tasks, among others: (a) investigating their claims and conferring with counsel; (b) reviewing the original complaint and each amended complaint before it was filed on their behalf; (c) gathering documents to support their claims; (d) responding to written discovery requests (both interrogatories and document requests) propounded by Verizon Wireless; (e) preparing for and attending their depositions; (f) preparing declarations for submission to the court (including their declaration in support of Plaintiffs Motion for Class Certification in this action); (g) reviewing legal documents (including the lengthy SAS) provided to them by my counsel; and (h) conferring with their counsel regarding various litigation-related issues. (Barth Decl., 7; Demmick Dec., 7.) 2

20 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 7 of 10 PageID: 3038 Plaintiffs initiated this lawsuit and voluntarily undertook the burdens associated with commencing litigation including the potential exposure to paying the defendant s costs if the defendant prevailed in this lawsuit. (Barth Decl., 6; Demmick Dec., 6.) In fact, each was exposed to potential liability due to the Counterclaim that Verizon Wireless filed against them. In addition to the time that they personally devoted to this litigation, Plaintiffs each had a non-party family member who was forced to devote time to this litigation because she (Mr. Demmick s wife and Mr. Barth s daughter) was also deposed by Verizon Wireless. (Barth Decl., 8; Demmick Dec., 8.) Plaintiffs initiated this lawsuit because they believed that Verizon Wireless was overcharging them for calls that were made under their Family SharePlans and because they believed that there likely were many other Verizon Wireless customers who were incurring the same types of overcharges. (Barth Decl., 9; Demmick Dec., 9.) Plaintiffs support the Settlement and believe that it is in the best interests of the Settlement Class Members. (Barth Decl., 5; Demmick Dec., 5.) Neither of the Plaintiffs was ever promised, or ever expected to receive, any compensation for performing his duties as a class representative. (Barth Decl., 9; Demmick Dec., 9.) However, both Plaintiffs will be very appreciative if the Court determines that their efforts on behalf of the 3

21 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 8 of 10 PageID: 3039 Settlement Class Members in commencing and assisting with the prosecution of this action are deserving of an incentive award. (Barth Decl., 10; Demmick Dec., 10.) C. The Incentive Awards Requested Are Reasonable In Amount And In Line With Those Granted By Other Courts. A $15,000 incentive award for each of the two class representatives is reasonable in the context of this case, particularly when one considers the length of the litigation, the number of hours invested by Plaintiffs, and the size of the Settlement obtained for the benefit of the Settlement Class Members. Moreover, the amount requested is in line with awards approved by federal courts in New Jersey and elsewhere. See, e.g., In re Ins. Brokerage Antitrust Litigation, 579 F.3d 241, 285 (3d Cir. 2009) (finding no error in approving a settlement that included a $10,000 incentive award for each class representative); Enterprise Energy v. Columbia Gas Transmission, 137 F.R.D. 240, (S.D. Ohio 1991) (approving $50,000 in incentive payments to each of six class representatives); In re Mego Fin. Corp. Sec. Litig. v. Nadler, 213 F.3d 454, 463 (9 th Cir. 2000) (approving incentive awards of $5,000 to the two class representatives in a class action settled for $1.725 million); In re SmithKline Beacham Corp. Sec. Litig., 751 F. Supp. 525, 535 (E.D. Pa. 1990) (approving $5,000 incentive awards for one representative of each of nine plaintiff classes as part of class action settlement); and Whitford v. 4

22 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 9 of 10 PageID: 3040 First Nationwide Bank, 147 F.R.D. 135, 138 (W.D. Ky. 1992) (approving the payment of $5,000 to each plaintiff as part of class settlement). Although the $30,000 total amount of incentive awards requested by Plaintiffs will be paid out of the Settlement Fund, Class Counsel propose that the attorneys fees awarded to Class Counsel be reduced by $30,000 to offset the payment of the incentive awards in order to ensure that the grant of the incentive awards does not diminish the Net Settlement Fund available for distribution to the Settlement Class Members. See In re LG/Zenith Rear Projection TV Class Action Litig., 2009 WL , at *9 (D.N.J. Feb. 18, 2009) (approving incentive award that will not decrease the recovery of other class members ). Considering the effort and risk undertaken by Plaintiffs to obtain an excellent Settlement for the Settlement Class Members, Plaintiffs request that the Court approve the incentive awards of $15,000 for each of the Plaintiffs to compensate them for their services in acting as class representatives in this action. III. CONCLUSION For all of the foregoing reasons, and on the basis of the legal authorities set forth herein, Plaintiffs respectfully request that the Court enter the Order submitted herewith granting incentive awards to the Class Representatives in the amount of $15,000 each. 5

23 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 10 of 10 PageID: 3041 Dated: January 23, 2015 HELLRING LINDEMAN GOLDSTEIN & SIEGAL LLP By s/ Stephen L. Dreyfuss, Esq. A Member of the Firm Stephen L. Dreyfuss, Esq. Matthew M. Moloshok, Esq. One Gateway Center Newark, New Jersey Telephone: (973) Facsimile: (973) FOLEY BEZEK BEHLE & CURTIS, LLP Peter J. Bezek, Esq. (admitted pro hac vice) Robert A. Curtis, Esq. (admitted pro hac vice) 15 West Carrillo Street Santa Barbara, California Telephone: (805) Facsimile: (805) ARIAS OZZELLO & GIGNAC LLP J. Paul Gignac, Esq. (admitted pro hac vice) 115 S. La Cumbre Lane, Suite 300 Santa Barbara, California Telephone: (805) Facsimile: (805) Court-Appointed Class Counsel 6

24 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 1 of 2 PageID: 3042 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RALPH DEMMICK, on behalf of himself and all others similarly situated; DONALD BARTH, on behalf of himself and all others similarly situated, Civ. Act. No (JLL) v. Plaintiffs, CELLCO PARTNERSHIP, a Delaware General Partnership doing business as Verizon Wireless; and DOES 1 through 10, Defendant. ORDER GRANTING INCENTIVE AWARDS TO CLASS REPRESENTATIVES

25 Case 2:06-cv JLL-MF Document Filed 01/23/15 Page 2 of 2 PageID: 3043 The Court, having reviewed the Motion for Order Granting Incentive Awards to Class Representatives filed by plaintiffs Ralph Demmick and Donald Barth ( Plaintiffs ) as well as the declarations submitted by Plaintiffs, and having determined that the time and effort devoted to this litigation by Plaintiffs, and the services provided by them, as class representatives contributed to the successful resolution of this litigation and conferred a significant benefit on the Settlement Class Members for which they should be rewarded, hereby ORDERS, ADJUDGES, and DECREES as follows: 1. Plaintiffs Motion for Order Granting Incentive Awards to Class Representatives is granted. 2. Plaintiffs shall be paid an incentive award in the amount of $15,000 each out of the Settlement Fund. 3. While the incentive awards will be paid out of the Settlement Fund, the attorneys fees awarded to Class Counsel in this action shall be reduced by $30, to offset the payment of the incentive awards, as proposed by Class Counsel, to ensure that the grant of the incentive awards does not diminish the Net Settlement Fund available for distribution to the Settlement Class Members. IT IS SO ORDERED. Dated: Honorable Jose L. Linares United States District Judge 1