UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Transcription

1 1 1 1 Staton Mike Arias, SBN 1 mike@asstlawyers.com Mikael H. Stahle, SBN mikael@asstlawyers.com ARIAS, SANGUINETTI, STAHLE & TORRIJOS, LLP 01 Center Drive West, Suite 0 Los Angeles, California 00-0 Tel: --; Fax: -1-0 Attorneys for Plaintiff Julie Sullivan and the Settlement Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JULIE SULLIVAN, an individual, on behalf of herself and all others similarly situated, vs. Plaintiff, DOLGEN CALIFORNIA, LLC, a Tennessee limited liability company; and DOES 1 through 0, inclusive, Defendants. Case No. -cv-0-jd Hon. James Donato CLASS ACTION NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEY S FEES, COSTS, AND INCENTIVE AWARD; MEMORANDUM OF POINTS AND AUTHORITIES Date: February, Time: :00 a.m. Courtroom: Complaint Filed: February, Trial Date: None AND INCENTIVE AWARD (NO. -CV-0-JD)

2 1 1 1 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February, at :00 a.m., or as soon thereafter as counsel may be heard, before the Honorable James Donato, in Courtroom, th Floor, United States District Court for the Northern District of California, 0 Golden Gate Avenue, San Francisco, California, Plaintiff Julie Sullivan will and hereby does move for an Order awarding: (1) Attorney s fees in the amount of $,000 (i.e., % of the Settlement Fund); () Costs and litigation expenses in the amount of $,.; and () An incentive award to Class Representative Julie Sullivan in the amount of $1, This motion is made on the grounds that Plaintiff s requests for attorney s fees, reimbursement of costs and expenses incurred in prosecuting the case, and the incentive award are fair, objectively reasonable, and appropriate in light of the results obtained on behalf of the class and the relevant Ninth Circuit authority. The motion is based on this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities; the Declaration of Mike Arias; the Declaration of Julie Sullivan; and such evidence and argument as may be presented at the hearing on this motion. Dated: January, ARIAS SANGUINETTI STAHLE & TORRIJOS LLP /s/ Mikael H. Stahle MIKE ARIAS MIKAEL H. STAHLE Attorneys for Plaintiff Julie Sullivan and the Settlement Class AND INCENTIVE AWARD (NO. -CV-0-JD)

3 1 1 1 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES... 1 I. INTRODUCTION... 1 II. III. IV. THE $,000 IN REQUESTED ATTORNEY'S FEES IS FAIR AND REASON-ABLE IN LIGHT OF THE RESULTS OBTAINED FOR THE CLASS... A. Class Counsel's Fee Request Is Reasonable Under the Percentage-of-Recovery Method Class Counsel Obtained an Exceptional Result for the Class.... Class Counsel Assumed Significant Risks in Undertaking This Litigation.... This Case Involved Complex Issues of Fact and Law That Required Class Action Attorneys With Specific Experience and Expertise.... Class Counsel Carried the Financial Burden in Pursuing This Litigation on a Contingency Fee Basis... B. The Requested Fees Are Reasonable Using the Lodestar Method As a Cross-Check... CLASS COUNSEL SHOULD BE REIMBURSED FOR THEIR REASON-ABLE COSTS AND EXPENSES INCURRED IN PROSECUTING THE ACTION... 1 A $1,000 INCENTIVE PAYMENT TO PLAINTIFF IS FAIR AND REASON-ABLE... 1 V. CONCLUSION... i MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (NO. :1-CV-0-JST)

4 1 1 1 STATUTES TABLE OF AUTHORITIES Cal. Labor Code... passim Cal. Code Regs. 00() ()... 1 Fed. R. Civ. P. Rule (h)... CASES In re Bluetooth Headset Products Liab. Litig. F.d (th Cir. )..., Californians for Disability Rights v. California Dept. of Transp. WL (N.D. Cal. ) Californians for Disability Rights, Inc. v. California Dept. of Transp. WL 0 (N.D. Cal. )... 1 Cervantez v. Celestica Corp. WL 1 (C.D. Cal. July, )... 1 Cicero v. DirecTV, Inc. WL 1 (C.D. Cal. July, )... 1 In re Continental Illinois Sec. Litig. F.d (th Cir. )... 1 Cook v. Niedert 1 F.d 0 (th Cir. )... 1 ii AND INCENTIVE AWARD (NO. -CV-0-JD)

5 1 1 1 Craft v. County of San Bernardino F.Supp.d 1 (C.D.Cal. 0)... Edmonds v. United States F. Supp. (D.S.C. )... In re Equity Funding Corp. Sec. Litigation F. Supp. (C.D. Cal. )... Fishel v. Equitable Life Assur. Society of U.S. 0 F.d,(th Cir. 0)... Harris v. Marhoefer F.d (th Cir. )... 1 In re Immune Response Sec. Litig. F. Supp. d 1 (S.D. Cal. 0)... 1 Kanawi v. Bechtel Corp. WL (N.D. Cal. )... In re King Resources Co. Sec. Litigation F. Supp. (D. Colo. )... Lewis v. Anderson F.d 1 (th Cir. )... Lortez v. Regal Stone, Ltd. F. Supp. d 1 (N.D. Cal. )... 1 McPhail v. First Command Fin. Planning, Inc. 0 WL 1 (S.D. Cal. Mar. 0, 0)... In re Media Vision Tech. Sec. Litig. 1 F. Supp. 1 (N.D. Cal. )... 1 In re Mego Fin. Corp. Sec. Litig. F.d (th Cir. 00)... In re Mercury Interactive Corp. Securities Litigation F.d (th Cir. )..., iii AND INCENTIVE AWARD (NO. -CV-0-JD)

6 1 1 1 In re Omnivision Technologies, Inc. F. Supp. d (N.D. Cal. 0)..., In re Pacific Enterprises Sec. Litig. F.d (th Cir. )... Paul, Johnson, Alston & Hunt v. Graulty F.d (th Cir. )..., In Re Rite Aid Corp. Sec. Litig. F.d (d Cir. 0)... Six () Mexican Workers v. Arizona Citrus Growers 0 F.d 1 (th Cir. 0)... passim Staton v. Boeing Co. F.d (th Cir. 0)... Suzuki v. Hitachi Global Storage Technologies, Inc. WL (N.D. Cal. )... 1 Torrisi v. Tucson Elec. Power Co. F.d (th Cir. )... Vizcaino v. Microsoft Corp. 0 F.d (th Cir. 0)... passim In re Washington Public Power Supply System Sec. Litig. F.d 11 (th Cir. )..., Williams v. Costco Wholesale Corp. WL (S.D. Cal. July, )... 1 Wren v. RGIS Inventory Specialists WL (N.D. Cal. ) supplemented, WL (N.D. Cal. )... Young v. Polo Retail, LLC 0 WL (N.D. Cal., Mar., 0)... iv AND INCENTIVE AWARD (NO. -CV-0-JD)

7 1 1 1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This Motion for Attorney s Fees, Costs, and Incentive Payment is made in connection with a class action settlement on behalf of approximately 1,0 current and former hourly employees of Dollar General ( Defendant ), as a resolution to the hard fought litigation related to Defendant s compliance with California s rules governing electronic wage statements. Plaintiff initially filed her Complaint (the Complaint ) in Alameda Superior Court on February,, asserting wages and hour claims under the California Labor Code, as well as representative PAGA claims. Dollar General removed the lawsuit to the United States District Court, Northern District of California on April,. The case was assigned for all purposes to this Court. On or about March,, Plaintiff, through counsel, sent a letter (the PAGA Notice Letter ), to the California Labor and Workforce Development Agency (the LWDA ), advising of her intention to pursue claims against Defendant pursuant to Private Attorneys General Act of 0, Cal. Labor Code et seq. ( PAGA ). On April,, Plaintiff filed the operative First Amended Complaint ( FAC ). It alleges the following claims for relief: (1) Failure to pay overtime compensation in violation of Cal. Labor Code, 1, and [class claim and individual claim]; () Failure to provide meal periods in violation of Cal. Labor Code., 1, and Cal. Code Regs. 00() [class claim and individual claim]; () Failure to provide rest periods in violation of. and Cal. Code Regs. 00() [class claim and individual claim]; () Failure to provide accurate itemized wage statements in violation of Cal. Labor Code [class claim and individual claim]; () Failure to provide printed wage statements in violation of Cal. Labor Code [class claim and individual claim]; () Unfair competition in violation of Cal. Business & Professions Code 0 et seq. [class claim and individual claim].; and () Penalties pursuant to the Private Attorneys General Act, Cal. Labor Code et seq. [representative claim]. (Dkt. #1). /// 1 AND INCENTIVE AWARD (NO. -CV-0-JD)

8 1 1 1 Plaintiff s first, second, and third causes of action in the FAC are entirely based on her allegations that she, as well as other Dollar General Market Store Managers in California, were misclassified as exempt employees, and her fourth cause of action (asserting a California Labor Code wage statement claim) is a related derivative claim to her misclassification allegations. Plaintiff s fifth cause of action, also asserting a California Labor Code wage statement claim, is based on the allegation that Dollar General failed to provide all California exempt and non-exempt employees who worked at Dollar General retail stores printed wage statements. Plaintiff s sixth cause of action, for unfair competition, is a derivative claim. Plaintiff s seventh cause of action seeks PAGA penalties, and is based on Plaintiff s first, second, third, fourth, and fifth causes of action. In reliance on Plaintiff s first, second, third, and fourth causes of action, the FAC sought certification of a putative class comprised of [a]ll persons employed as a [market] store manager in one or more Dollar General branded store in California at any time on or after February, ; and, in reliance on Plaintiff s fifth cause of action, the FAC sought certification of a putative class comprised of [a]ll persons employed in one or more Dollar General branded store in California at any time on or after February,. (Dkt. #1). With respect to Plaintiff s seventh cause of action, the FAC identified the aggrieved employees under PAGA as Plaintiff and all other persons employed by Defendant in one or more Dollar General branded store in California at any time on or after February, 1 in that one or more of the violations alleged [in the FAC] was committed against them, and each of them. (Dkt. #1) The Parties engaged in formal and informal discovery and exchanges of extensive documents and information, including data regarding the size of the putative class. On March,, Plaintiff filed a Motion for Class Certification, seeking certification on her first, fifth, and sixth causes of action. (Dkt #1.) Plaintiff subsequently conceded certification on her first cause of action, and her sixth cause of action as it pertains to her misclassification allegations. Consequently, Plaintiff s class claims related to the first, AND INCENTIVE AWARD (NO. -CV-0-JD)

9 1 1 1 second, third, and fourth causes of action in the FAC (resulting from Plaintiff s misclassification allegations) are no longer in dispute in this Lawsuit. At the conclusion of the May, hearing, the Court took the Motion for Class Certification (as to the fifth cause of action, and the sixth cause of action to the extent it is derivative of the printed wage statement claim) under submission. (Dkt #.) In addition, on April,, Defendant filed a Motion for Summary Judgment, in which it sought, inter alia, a ruling as a matter of law that Plaintiff (and any class she sought to represent) were properly classified as exempt from overtime pay, and that Plaintiff s wage statement claims under Cal. Labor Code fail as a matter of law. (Dkt. #-). Pursuant to an arms-length mediation facilitated by the Hon. Carl J. West (Ret.), which took place on March,, as well as a settlement conference facilitated by the Honorable Joseph C. Spero, Chief Magistrate Judge for the Northern District, which took place on June 1, (the Settlement Conference ), the Parties agreed to settle the issues, matters, and things in dispute between and among them in the manner set forth in the Amended Stipulation for Class Action Settlement ( Class Action Settlement ), attached as Exhibit 1 to the Amended Declaration of Mike Arias, filed concurrently therewith on August 1,. (See Dkt #-1.) (See also Declaration of Mike Arias in Support of Motion for Attorney s Fees, Costs, and Incentive Award [ Arias Decl. ], filed concurrently herewith, 1.) On November 1,, this Court granted Preliminary Approval of the Settlement, setting a deadline of February, for Plaintiff to file a motion for final approval and a request for fees, costs, and incentive awards, along with a fairness hearing for February,. (See Dkt #.) In accordance with Ninth Circuit precedent, Plaintiff is filing the instant motion for attorney s fees, costs, and incentive award ahead of the January, deadline for class members to object to the settlement. (See In re Mercury Interactive Corp. Securities Litigation, F.d, (th Cir. ) (no bright-line rule applies, and length of time will vary from case to case, but class members must be given adequate opportunity to examine and oppose class counsel s fee motion).) Here, in light of the AND INCENTIVE AWARD (NO. -CV-0-JD)

10 1 1 1 relatively straightforward and modest fee request, Plaintiff submits that the instant motion provides class members with an adequate opportunity to assert any desired objection or opposition to the motion. Arias Sanguinetti Stahle & Torrijos LLP ( Class Counsel ) hereby respectfully requests an award of attorneys fees in the amount of $,000 and the reimbursement of $,. in litigation costs and expenses for their efforts in prosec-uting and obtaining a settlement that is the subject of the motion for final approval that will be filed on or before February, after the close of the notice period. As explained in more detail herein, and as supported by the accompanying declarations of Mike Arias and Julie Sullivan, the requested fees, costs, and incentive award fall within the norm for class actions and are justified by the results of the settlement and relevant Ninth Circuit authority. The proposed settlement establishes a $00,000 Settlement Fund, which will be used to pay for attorneys fees, administrative costs, and class benefits. Significantly, there is no claim procedure or reversion under the terms of the Settlement Agreement that is, the class members need not make a claim to receive their settlement shares and no part of the $00,000 Settlement Fund will return to Defendant. Given the amount of legal work done by experienced Class Counsel on behalf of the Settlement Class and the results obtained in this litigation, the request for $,000 in attorneys fees is both fair and reasonable. The fees requested represents percent of the $00,000 Settlement Fund provided under the settlement. Not only does the requested fully comply with the Ninth Circuit s -percent benchmark, it represents a mere. percent (in other words, a significant negative multiplier) of the $,0 lodestar of attorney time expended by Class Counsel in the prosecution of this case. In addition, Plaintiff seeks an incentive award of $1,000 for Representative Plaintiff, Julie Sullivan. The requested service award is justified in light of Plaintiff s willingness to step forward and assert claims on behalf of the Class and in light of Plaintiff s significant assistance during the prosecution of this case over the past three years. /// AND INCENTIVE AWARD (NO. -CV-0-JD)

11 1 1 1 Because the requested attorneys fees, reimbursement of litigation expenses and incentive payment are objectively reasonable and appropriate, Plaintiff and Class Counsel respectfully request that the Court approve this motion in full. II. THE $,000 IN REQUESTED ATTORNEY S FEES IS FAIR AND REASON- ABLE IN LIGHT OF THE RESULTS OBTAINED FOR THE CLASS Rule (h) of the Federal Rules of Civil Procedure provides that, [i]n a certified class action, the court may award reasonable attorney s fees and nontaxable costs that are authorized by law or by the parties agreement. Fed. R. Civ. P. (h). The Ninth Circuit has long-recognized that [w]hen counsel recover a common fund which confers a substantial benefit upon a class of beneficiaries, they are entitled to recover their attorney s fees from the fund. (Fishel v. Equitable Life Assur. Society of U.S., 0 F.d, 0 (th Cir. 0) (citing Lewis v. Anderson, F.d 1, (th Cir. )).) Fairness mandates the application of this rule known as the common fund doctrine because those who benefit from the creation of a fund should share the wealth with the lawyers whose skill and effort helped create it. (In re Washington Public Power Supply System Sec. Litig., F.d 11, 0 (th Cir. ).) In short, the common fund doctrine, is designed to prevent unjust enrichment by distributing the costs of litigation among those who benefit from the efforts of the litigants and their counsel. (In re Omnivision Technologies, Inc., F. Supp. d, (N.D. Cal. 0) (citing Paul, Johnson, Alston & Hunt v. Graulty, F.d, 1 (th Cir. )).) Within the Ninth Circuit courts have discretion to employ either the lodestar method or the percentage-of-recovery method to establish the reasonable amount of attorneys fees to award. (See In re Bluetooth Headset Products Liab. Litig., F.d, (th Cir. ) (citing In re Mercury Interactive Corp., F.d, (th Cir. )).) Regardless of the method used, however, the goal is the same: to reasonably compensate counsel for their efforts in creating the common fund. (See Paul, Johnson, F.d at 1-.) Here, both methods for calculating attorneys fees support awarding Class Counsel $,000 in fees. AND INCENTIVE AWARD (NO. -CV-0-JD)

12 1 1 1 A. Class Counsel s Fee Request Is Reasonable Under the Percentage-of- Recovery Method The Ninth Circuit has expressly approved the use of the percentage method in common fund cases. (See Vizcaino v. Microsoft Corp., 0 F.d, (th Cir. 0); Paul, Johnson, F.d at ; Six () Mexican Workers v. Arizona Citrus Growers, 0 F.d 1, 1 (th Cir. 0); Torrisi v. Tucson Elec. Power Co., F.d (th Cir. ).) Indeed, while courts have discretion to use either method, use of the percentage method in common fund cases appears to be dominant. (Omnivision Technologies, F. Supp. d at (citing Vizcaino, 0 F.d at ; Six Mexican Workers, 0 F.d at 1; and Paul, Johnson, F.d at ).) 1 The Ninth Circuit has held that percent of the gross settlement amount is the benchmark for attorneys fees awarded under the percentage method. (See Vizcaino, 0 F.d at ; Six Mexican Workers, 0 F.d at 1 (recognizing percent standard award ).) In fact, district courts have often granted and the Ninth Circuit has affirmed awards of attorneys fees at or above a 0 percent fee. (See, e.g., In re Mego Fin. Corp. Sec. Litig., F.d, (th Cir. 00) (affirming fee award of 1/% of fund); In re Pacific Enterprises Sec. Litig., F.d, (th Cir. ) (awarding attorneys fees equal to % of settlement fund); McPhail v. First Command Fin. Planning, Inc., No. 0cv IEG JMA, 0 WL 1, at * (S.D. Cal. Mar. 0, 0) (awarding attorneys fees of 0% for first $ million of the settlement fund and % for the remaining $ million).) Indeed, in cases where the common fund is relatively small as is the case here courts routinely award attorneys fees above the -percent benchmark. 1 The advantages of the percentage method were detailed by this Court in In re Activision, F. Supp. 1, 1- (N.D. Cal. ). After reviewing case law from this and other circuits, the court concluded that in class action common fund cases the better practice is to set a percentage fee, which it concluded would encourage plaintiffs attorneys to move for early settlement, provide predictability for the attorneys and the class members, and reduce the time consumed by counsel and court in dealing with voluminous fee petitions. AND INCENTIVE AWARD (NO. -CV-0-JD)

13 1 1 1 (See Craft v. County of San Bernardino, F.Supp.d 1, (C.D.Cal. 0) (holding attorneys fees for large fund cases are typically under % and cases below $ million are often more than the % benchmark).) In Vizcaino, the Ninth Circuit found that a -percent fee award in a class action was reasonable under the percentage method when considering the relevant circumstances. (Vizcaino, 0 F.d at 0.) In reaching its decision, the Ninth Circuit held that the district court may consider the following factors when analyzing a request for fees: (i) the results obtained for the class, including whether counsel s performance generated benefits beyond the cash settlement fund; (ii) the risk undertaken by counsel; (iii) the skill required and the quality of work; (iv) the contingent nature of the fee and the financial burden carried; (v) the market rate; and (vi) awards in similar cases. (Vizcaino, supra, 0 F.d at -0; Six Mexican Workers, supra, 0 F.d at 1.) Each of these factors supports approval of Class Counsel s $,000 fee request. 1. Class Counsel Obtained an Exceptional Result for the Class The benefit achieved for the class is an important factor to be considered in awarding attorneys fees. (See Vizcaino, 0 F.d at ; see Torrisi, F.d. at 1 (considering counsel s expert handling of the case ); Six Mexican Workers, 0 F.d at 1 (noting plaintiffs substantial success ).) Here, Class Counsel achieved an exceptional result for the settlement class. Pursuant to the settlement, Defendant will establish a $00,000 Settlement Fund for the benefit of the Settlement Class, out of which each Settlement Class Member will receive his or her pro rata share based on his or her length of employment. Moreover, the Settlement Agreement provides for an injunctive relief component obligating Defendant to, using its best efforts, and within a reasonable time after judgment, implement changes to its policies and/or procedures to add an option that allows new and current California retail employees to make an election to receive their wage statements each pay period in printed form, [which] election will remain in effect for future pay periods unless an alternative election is made by the employee. (See Arias Decl. at 1-1.) Class Counsel s ability AND INCENTIVE AWARD (NO. -CV-0-JD)

14 1 1 1 to obtain these settlement benefits is exceptional in light of Defendant s vigorous defense of the action.. Class Counsel Assumed Significant Risks in Undertaking This Litigation In determining the reasonableness of the requested fees, a court should not only consider the recovery obtained for the class, but also the risks taken by class counsel in pursuing the litigation. The Ninth Circuit recognizes that risk is an important factor in determining a reasonable fee award. (Vizcaino, 0 F.d at.) Uncertainty that an ultimate recovery would be obtained is highly relevant in determining such risk. As one court observed: In evaluating the services rendered in this case, appropriate consideration must be given to the risks assumed by plaintiffs counsel in undertaking the litigation. The prospects of success were by no means certain at the outset, and indeed, the chances of success were highly speculative and problematical. (In re King Resources Co. Sec. Litigation, F. Supp.,, - (D. Colo. ). From the initiation of this case, Class Counsel undertook considerable risk. These risks involved everything from certification issues, pleading and proof issues, to establishing the extent of Defendant s liability, to prevailing at trial. (See Arias Decl., -.) During the prosecution of this case, Class Counsel incurred significant expenses and expended significant resources knowing that the results in the case were uncertain, but confident that justice would be served by continuing to prosecute the case. fees. Accordingly, Class Counsels contingency risk supports the requested attorneys. This Case Involved Complex Issues of Fact and Law That Required Class Action Attorneys With Specific Experience and Expertise The prosecution and management of a complex national class action requires unique legal skills and abilities. (Edmonds v. United States, F. Supp., (D.S.C. ).) Class Counsel are experienced class action litigators. Furthermore, this AND INCENTIVE AWARD (NO. -CV-0-JD)

15 1 1 1 case involved a relatively novel and complex area of law, which required specific skills and experience, namely the statutory and regulatory environment in California governing electronic wage statements, which retailers and other employers have only fairly recently adopted as the techonology to do so has become available. Class Counsel bringing to bear its significant expertise and experience in complex class actions on this issues deserves to be rewarded. Class Counsel conducted extensive factual investigation, analysis of thousands of pages of documents, and discovery, inclduing traveling across the country for multiple depositions under Rule 0(b)(). (Arias Decl., -.) Class Counsel also participated in formal mediation and protracted settlement negotiations, which stretched over several months. (Arias Decl., 1). From the outset, Class Counsel litigated this action vigorously and skillfully, maximizing recovery for the benefit of the Class. As a result of Class Counsel s skill and diligence, they reached an excellent settlement result for the Class. The quality of Class Counsel s work, and the efficiency and dedication with which it was performed, should be rewarded. Moreover, the quality of opposing counsel is also an important factor when evaluating the quality of the work done by Class Counsel. (See In re Equity Funding Corp. Sec. Litigation, F. Supp., 1 (C.D. Cal. ). Here, Class Counsel were opposed by skilled and respected counsel from McGuireWoods, who had significant resources and experience with which to represent and defend Defendant s interests. This factor also strongly supports the fees requested. In summary, the factual and legal complexity of this action combined with McGuireWoods s vigorous defense of Defendant weigh strongly in favor of awarding the requested attorneys fees.. Class Counsel Carried the Financial Burden in Pursuing This Litigation on a Contingency Fee Basis A determination of a fair attorneys fee award must also include consideration of the contingent nature of the fee and the difficulties that were overcome in obtaining the AND INCENTIVE AWARD (NO. -CV-0-JD)

16 1 1 1 settlement. (Vizcaino, 0 F.d at -0.) Attorneys whose compensation depends on their winning the case must make up in compensation in the cases they win for the lack of compensation in the cases they lose. (Vizcaino, 0 F. d at 1.) Here, Class Counsel undertook this litigation on a purely contingency basis, with no assurance of recovering any attorneys fees or reimbursement of costs. Class Counsel initiated potentially complex, expensive and lengthy litigation, with no guarantee of compensation for the significant amount of time, money and effort that they were prepared to and did invest to prosecute this case. (Arias Decl., -.) Class Counsel dedicated ample resources of attorneys and other personnel to this action and paid out-of-pocket expenses necessary to prosecute the case, further supporting the fees requested. (Arias Decl., -.) In light of the burden that Class Counsel undertook in this action on a purely contingency fee basis, their request for attorneys fees is justified. B. The Requested Fees Are Reasonable Using the Lodestar Method As a Cross-Check The Ninth Circuit encourages district courts to cross-check one method of awarding fees against another method to ensure that the requested fees are reasonable. (In re Bluetooth, F.d at. In Vizcaino, for example, the court found that the lodestar cross-check validated the percentage fee award because the latter methodology resulted in a lodestar multiplier of.. Here, the lodestar methodology validates the percentage fee award because it results in a negative multiplier, with the request fee representing a mere. percent of the $,0 lodestar of attorney time expended by Class Counsel in the prosecution of this case. (Arias Decl., -.) In other words, Class Counsel requests attorneys fees far less than its lodestar. The lodestar method calculates attorneys fees by multiplying the number of hours that class counsel reasonably expended on the litigation by an hourly rate that takes into consideration the region and the experience of the lawyers. (Staton v. Boeing Co., F.d, (th Cir. 0).) Mathematical precision is not required when performing a AND INCENTIVE AWARD (NO. -CV-0-JD)

17 1 1 1 lodestar cross-check. (See Young v. Polo Retail, LLC, No. C-0--VRW, 0 WL, at * (N.D. Cal., Mar., 0) ( In contrast to the use of the lodestar method as a primary tool for setting a fee award, the lodestar cross-check can be performed with a less exhaustive cataloging and review of counsel's hours. ); In Re Rite Aid Corp. Sec. Litig., F.d, 0-0 (d Cir. 0) ( The lodestar cross-check calculation need entail neither mathematical precision nor bean-counting. ).) It is well-settled that a positive multiplier is appropriate in common fund cases to reward attorneys for the risk assumed in taking and litigating the case. [C]ourts have routinely enhanced the lodestar to reflect the risk of non-payment in common fund cases. (Washington Public Power, supra, F.d at 0.) This mirrors the established practice in the private legal market of rewarding attorneys for taking the risk of nonpayment by paying them a premium over their normal hourly rates for winning contingency cases. (Vizcaino, 0 F.d at 1.) In Vizcaino, the court examined a survey of multipliers in common fund cases, and found that they ranged from 0.-. with most ( of, or %) from and a bare majority (1 of, or %) in the range) Id. at 1. Here, however, because the fees sought by Class Counsel are less that their lodestar, Class Counsel s fee request results in a negative multiplier. Class Counsel expended 0. hours to achieve the class settlement. At their regular and reasonable hourly rates, those hours result in a lodestar base of $,0. (Arias Decl.,.) As such, Class Counsel s lodestar is far greater than the $,000 in attorneys fees for which Class Counsel is applying. Moreover, Class Counsel s hourly billing rates (see Arias Decl., ) are within the range accepted by courts in the Ninth Circuit when awarding attorneys fees on a lodestar basis, particularly in a complex class action. (See Wren v. RGIS Inventory Specialists, No. C 0 0 JCS, WL, at *- (N.D. Cal. ) supplemented, WL (N.D. Cal. ) (approving hourly rates of $0 and $); Kanawi v. Bechtel Corp., No. C 0 0 CRB, WL, at * (N.D. Cal. ) (approving a blended hourly rate of $1.0 in an ERISA class action); Californians for Disability AND INCENTIVE AWARD (NO. -CV-0-JD)

18 1 1 1 Rights v. California Dept. of Transp., No. C 0 01 SBA (MEJ), WL, at *1 (N.D. Cal. ) report and recommendation adopted sub nom., Californians for Disability Rights, Inc. v. California Dept. of Transp., WL 0 (N.D. Cal. ) (finding hourly rates of $ for attorney with years of experience, $0 for years, $0 for years, $0 for years; $0 for years, $0 for years, $ for years, $00 for years, $ for years, $0 for years, $0 for years, $0 for 1 year, and between $ and $ for paralegals appropriate in an ADA class action); Lortez v. Regal Stone, Ltd., F. Supp. d 1, (N.D. Cal. ) (finding hourly rates of $ for a partner, $0 for an associate and $ for a paralegal all reasonable in a class action brought, in part, under California s UCL); Suzuki v. Hitachi Global Storage Technologies, Inc., No. C 0- MHP, WL, at * (N.D. Cal. ) aff'd, F. App'x (th Cir. ) (finding hourly rates of $0 for a partner, $00 for an associate and $0 for paralegals appropriate in a consumer product misrepresentation class action).) In summary, given the large negative multiplier, even assuming arguendo that this Court were to find that the amount of hours expended were unreasonable or that the hourly rates of the Plaintiff s attorneys were likewise unreasonable, a substantial downward adjustment has already been factored into the award sought. Accordingly, Class Counsel s fee request is justified. III. CLASS COUNSEL SHOULD BE REIMBURSED FOR THEIR REASON- ABLE COSTS AND EXPENSES INCURRED IN PROSECUTING THE ACTION Plaintiff also requests that Class Counsel be reimbursed $,. for the litigation costs and expenses that they incurred in prosecuting this action. (Arias Decl., -.) Attorneys who create a common fund are entitled to the reimbursement of expenses they advanced for the benefit of the class. (See In re Media Vision Tech. Sec. Litig., 1 F. Supp. 1, 1 (N.D. Cal. ) ( Reasonable costs and expenses incurred by an attorney who creates or preserves a common fund are reimbursed proportionally by those class members who benefit from the settlement. ).) Expenses that are of the type normally 1 AND INCENTIVE AWARD (NO. -CV-0-JD)

19 1 1 1 charged to hourly paying clients are reimbursable. (Harris v. Marhoefer, F.d, (th Cir. ) (recovery of those out-of-pocket expenses that would normally be charged to a fee paying client are reimbursable); see also In re Immune Response Sec. Litig., F. Supp. d 1, 1- (S.D. Cal. 0) (approving reasonable costs in class action settlement to include travel expenses, postage, telephone, fax, notice, filing fees, photocopies, and computerized legal research).) Here, the expenses which Class Counsel seek are the type of expenses routinely charged to hourly paying clients and are well-within the range of reasonableness given the length and complexity of this litigation. For example, Class Counsel seeks reimbursement for filing fees, legal research, mediation, transcripts, and messenger fees. All of these charges are commonly accepted as reimbursable in a common fund case. Plaintiff, therefore, respectfully requests that the Court order the reimbursement of Class Counsel s costs and expenses in the amount of $,.. IV. A $1,000 INCENTIVE PAYMENT TO PLAINTIFF IS FAIR AND REASON- ABLE Plaintiff Julie Sullivan applies to the Court for an incentive payment of $1,000. Settlements in class actions may include an incentive award to the named plaintiffs to compensate them for their time and effort and financial and reputational risks the litigation imposed upon them. (See Rodriguez v. West Publishing Corp., F.d, - (th Cir. 0).) Because a named plaintiff is an essential ingredient of any class action, an incentive award is appropriate if it is necessary to induce an individual to participate in the suit. (Cook v. Niedert, 1 F.d 0, (th Cir. ).) Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit could be thought the equivalent of the lawyers non-legal but essential case-specific expenses, such as long-distance phone calls, which are reimbursable. (In re Continental Illinois Sec. Litig., F.d, 1 (th Cir. ); Staton, F.d at.) /// 1 AND INCENTIVE AWARD (NO. -CV-0-JD)

20 1 1 1 In the context of this lawsuit, an award of a $1,000 incentive payment to Plaintiff is fair and reasonable. Plaintiff contributed extensive time and effort to the litigation of this class action. Plaintiff had regular telephone conversations and communications with Class Counsel, provided Class Counsel with background information regarding her claims, assisted Class Counsel in understanding her claims and in responding to discovery, and searched for and produced documents supporting her claims and the claims of the Class. Over the last three years, Julie Sullivan estimates that she devoted approximately hours assisting Class Counsel in this case. (See Declaration of Julie Sullivan, filed concurrently herewith, at -.) The amount of incentive payment sought by Plaintiff is in line with incentive payments awarded in other class actions. (See Cicero v. DirecTV, Inc., No. EDCV 0-1, WL 1, at * (C.D. Cal. July, ) (approving incentive awards of $,000 and $,00 where the class representatives actively participated in the action by assisting counsel and responding to discovery ); Williams v. Costco Wholesale Corp., No. 0cv0 IEG (AJB), WL, at * (S.D. Cal. July, ) (approving a $,000 incentive award); Cervantez v. Celestica Corp., No. EDCV 0--VAP (OPx), WL 1, at * (C.D. Cal. July, ) ( An award of $,000 is reasonable, considering the time Plaintiff expended, the applicable risks, and the awards other Class Members will receive ).) Based on the foregoing, Plaintiff respectfully requests that the Court award Plaintiff Julie Sullivan a $1,000 incentive payment, as provided under the Settlement Agreement. /// /// /// 1 AND INCENTIVE AWARD (NO. -CV-0-JD)

21 1 1 1 V. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court issue an order: (a) awarding attorneys fees in the amount of $,000; (b) reimbursing the litigation costs and expenses reasonably incurred in this action of $,.; and (c) awarding an incentive payment of $1,000 to Plaintiff Julie Sullivan. Dated: January, ARIAS SANGUINETTI STAHLE & TORRIJOS LLP /s/ Mikael H. Stahle MIKE ARIAS MIKAEL H. STAHLE Attorneys for Plaintiff Julie Sullivan and the Settlement Class AND INCENTIVE AWARD (NO. -CV-0-JD)

22 AND INCENTIVE AWARD (NO. -CV-0-JD)