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1 Case:0-cv-0-JF Document0 Filed/0/ Page of Eric H. Gibbs (State Bar No. ) Dylan Hughes (State Bar No. 0) Geoffrey A. Munroe (State Bar No. 0) Amy M. Zeman (State Bar No. 00) GIRARD GIBBS LLP 0 California Street, th Floor San Francisco, CA 0 Telephone: () -00 Facsimile: () - ehg@girardgibbs.com Attorneys for Plaintiffs JONAS SUGARMAN and QUANG LE, on behalf of themselves and all others similarly situated, vs. Plaintiffs, DUCATI NORTH AMERICA, INC., Defendant. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. :0-cv-0-JF NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES, EXPENSES, AND SERVICE AWARDS Date: January 0, 0 Time: :00 p.m. Judge: Hon. Jeremy Fogel CASE NO. :0-CV-0-JF

2 Case:0-cv-0-JF Document0 Filed/0/ Page of NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on January 0, 0, at :00 p.m. before the Honorable Jeremy Fogel in Courtroom, th Floor of the United States District Court for the Northern District of California, San Jose Division, located at 0 South st Street, San Jose, California, Plaintiffs Jonas Sugarman and Quang Le will and hereby do move for an order awarding attorney fees, expenses and service awards. Plaintiffs bring this motion pursuant to Federal Rule of Civil Procedure (h) on the grounds that the parties settlement agreement authorizes the requested award, which is also warranted under California s Consumers Legal Remedies Act, Cal. Civ. Code 0(e), and California s private attorney general statute, Cal. Civ. Proc. Code 0.. Plaintiffs motion is based on this notice; the accompanying Memorandum of Points and Authorities and Declarations of Eric H. Gibbs and Amy M. Zeman; and all other papers filed and proceedings had in this action. DATED: December 0, 0 Respectfully submitted, GIRARD GIBBS LLP By: /s/ Eric H. Gibbs Eric H. Gibbs Dylan Hughes Geoffrey A. Munroe Amy M. Zeman 0 California Street, th Floor San Francisco, CA 0 Telephone: () -00 Facsimile: () - Attorneys for Plaintiffs CASE NO. :0-CV-0-JF

3 Case:0-cv-0-JF Document0 Filed/0/ Page of 0 0 TABLE OF CONTENTS I. INTRODUCTION... II. ARGUMENT... A. The Court s Role In Evaluating The Agreed-Upon Fee To Be Paid By Ducati.... B. The Negotiated Fee Is Reasonable Under California s Lodestar Method..... Class Counsel s Time Was Reasonably Spent..... Class Counsel s Hourly Rates Are Reasonable and Have Been Previously Approved as Such In Similar Litigation Class Counsel s Work in this Case Would Likely Justify An Upward Adjustment, Making Ducati s Agreement To Pay Class Counsel s Lodestar Reasonable and Non-Collusive.... C. The Service Awards Requested Are Also Reasonable and Appropriate.... III. CONCLUSION... 0 i CASE NO. :0-CV-0-JF

4 Case:0-cv-0-JF Document0 Filed/0/ Page of Cases TABLE OF AUTHORITIES Brothers v. Hewlett-Packard Co. 00 WL (N.D. Cal. Feb., 00)... Buccellato v. AT&T Operations, Inc. 0 WL (N.D. Cal. June 0, 0)... Chavez v. Netflix, Inc. Cal. App. th (00)... Daugherty v. American Honda Cal. App. th (00)... Graham v. DaimlerChrysler Corp. Cal.th (00)... In re Bluetooth Headset Products Liab. Litig. F.d (th Cir. 0)... In re Charles Schwab Corp. Securities Litig 0 WL (N.D. Cal. Apr., 0)... In re Consumer Privacy Cases Cal. App. th (00)..., In re Nuvelo, Inc. Securities Litig. 0 WL 0 (N.D. Cal. July, 0)... 0 In re Vitamin Cases 00 WL (Cal. Sup. Ct. Apr., 00)... In re Wells Fargo Loan Processor Over-Time Pay Litigation 0 WL 0 (N.D. Cal. Aug., 0)... 0, Kent v. Hewlett-Packard Company 0 WL 0 (N.D. Cal. Sept. 0, 0)... Ketchum v. Moses Cal.th (00)... Kim v. Euromotors West/The Auto Gallery Cal. App. th 0 (00)... ii CASE NO. :0-CV-0-JF

5 Case:0-cv-0-JF Document0 Filed/0/ Page of Long v.hewlett-packard Co. 00 WL (N.D. Cal. July, 00)... Mangold v. California Public Utilities Commission F.d 0 (th Cir. )... Natural Gas Anti-Trust Cases I, II, III & IV 00 WL (Cal. Super. 00)... Rodriguez F.d (th Cir. 00)... Staton v. Boeing Co. F.d (th Cir. 00)..., Wershba v. Apple Computer, Inc. Cal. App. th (00)... Winterrowd v. Am. Gen. Annuity Ins. Co. F.d (th Cir. 00)... Rules Fed. R. Civ. P....,, Statutes Cal. Civ. Code 0... Cal. Code of Civ. Proc , iii CASE NO. :0-CV-0-JF

6 Case:0-cv-0-JF Document0 Filed/0/ Page of MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Having achieved the goals of this lawsuit and by negotiating a class settlement that will provide about,000 Ducati owners with notice of potentially unsafe conditions and corrective repairs, Plaintiffs have a claim for attorney fees and litigation expenses under two California fee-shifting statutes. Rather than litigating the appropriate amount of this fee award, however, the parties have settled on $,000 for both fees and expenses a figure that is within the range of fees that the Court might have awarded in a contested motion. Plaintiffs now request that the Court approve the fee authorized by the parties agreement under Rule (h) of the Rules of Civil Procedure. The lodestar analysis used to calculate fees under California s fee-shifting statutes confirms that the agreed-upon fee is reasonable. Class counsel has spent, hours over the past year working on behalf of the class, which at their customary hourly rates amounts to a lodestar of $,. In light of the contingency risk class counsel undertook and the positive results they achieved through the litigation, both of which could have supported an upward adjustment to the lodestar in a contested proceeding, the $,000 Ducati has agreed to pay compares favorably. When class counsel s $0,0 in litigation expenses are taken into account, an $,000 award actually reflects a fee reduction, particularly considering that class counsel will continue to devote substantial time to this case in the foreseeable future. In other words, Ducati settled Plaintiffs statutory fee right on reasonable terms, the payment of which should therefore be approved. The parties further ask that the Court approve service awards of $,00 to the two class representatives and to two other class members who also participated in the action, in recognition of the contributions they made on behalf of similarly situated Ducati owners. II. ARGUMENT A. The Court s Role In Evaluating The Agreed-Upon Fee To Be Paid By Ducati. At the conclusion of a successful class action, class counsel may apply to the Court for an award of reasonable attorney s fees and nontaxable costs that are authorized by law or by the parties agreement. Fed. R. Civ. P. (h). Here, Ducati has agreed to pay $,000 in settlement of Plaintiffs statutory fee-shifting claims and class counsel is seeking an award consistent with that agreement. CASE NO. :0-CV-0-JF

7 Case:0-cv-0-JF Document0 Filed/0/ Page of Though the amount class counsel is requesting is the result of negotiation, the Court must still ensure that the requested fee award is reasonable. See In re Bluetooth Headset Products Liab. Litig., F.d, (th Cir. 0). The reason is that while ordinarily a defendant would never agree to pay more than a fee-shifting claim is worth, in a class action setting there is a risk that class counsel negotiated a class settlement that under-compensates class members in exchange for defendant s agreement to an inflated fee settlement. See Staton v. Boeing Co., F.d, (th Cir. 00) ( If fees are unreasonably high, the likelihood is that the defendant obtained an economically beneficial concession with regard to the [class] merits provisions. ). The Court therefore should review the $,000 Ducati has agreed to pay and ask whether it is the result of a legitimate fee settlement. [S]ince the proper amount of fees is often open to dispute and the parties are compromising precisely to avoid litigation, the court need not inquire into the reasonableness of the fees even at the high end with precisely the same level of scrutiny as when the fee amount is litigated. Staton, F.d at. Nonetheless, the Court should conduct an explicit calculation under the applicable fee-shifting statutes so that it can determine whether $,000 is measurably higher than [Ducati] could conceivably have to pay were the fee amount litigated ; if it is not, the fee should be approved as the result of a legitimate compromise. Id.; see also Bluethooth, F.d at (requiring explicit calculation or explanation for approval of a stipulated fee request). B. The Negotiated Fee Is Reasonable Under California s Lodestar Method. This is not a case where Plaintiffs sought or obtained a common fund, so federal common fund doctrine does not come into play. Instead, Plaintiffs right to a fee arises under two California feeshifting statutes that are designed to incentivize counsel to purse consumers interest through publicly beneficial litigation. The first statute is the California Consumers Legal Remedies Act (CLRA), Cal. Civ. Code 0(e). It provides that in any case brought pursuant to the CLRA, as this case was, a plaintiff who prevails through trial or settlement is entitled to an award of attorney fees and costs. See id.; Kim v. Euromotors West/The Auto Gallery, Cal. App. th 0, - (00). The second statute is California s codification of the private attorney general doctrine, Cal. Code of Civ. Proc. 0.. It provides that plaintiffs who successfully confer a significant benefit on the general public or large class of persons are entitled to attorney fees. See id.; Graham v. DaimlerChrysler Corp., CASE NO. :0-CV-0-JF

8 Case:0-cv-0-JF Document0 Filed/0/ Page of Cal.th, (00) ( It is well settled that attorney fees under section 0. may be awarded for consumer class action suits benefiting a large number of people. ). Since Plaintiffs right to a fee arises under California law, settled Erie principles require application of California law in assessing the reasonable amount of that fee as well. See Mangold v. California Public Utilities Commission, F.d 0, (th Cir. ) (in diversity actions, state law applies in determining not only the right to fees, but also in the method of calculating the fees ). Under California law, the primary method for calculating statutory fee awards is the lodestar method a two-step process under which the lodestar is produced by multiplying the time reasonably spent on the litigation by a reasonable hourly rate, and then may be adjusted upward or downward to take into account a variety of other factors, such as contingent risk or the quality of the results obtained. In re Consumer Privacy Cases, Cal. App. th, - (00). A summary of the lodestar calculation for the attorneys who represented the class in this case appears in the following chart: Attorney Total Hours % of Total Hours Billing Rate Lodestar Eric H. Gibbs. % $ $,0. Dylan Hughes. 0% $ $,0.0 Geoffrey A. Munroe. % $ $,0.0 Amy M. Zeman. % $0 $0,.0 Litigation Assistants. % $00 $,0.00 TOTALS.0 00% $ (blend) $,. The reasonableness of the total hours spent by class counsel, as well as their hourly rates, is discussed in the ensuing two sections. The third section then analyzes the multiplier factors that courts consider when deciding whether the lodestar should be adjusted. In this case, Ducati s decision to settle the fee for lodestar was sensible and not indicative of any behind-the-scenes collusion, as the factors very well could have justified a higher award than Ducati is paying. CASE NO. :0-CV-0-JF

9 Case:0-cv-0-JF Document0 Filed/0/ Page of Class Counsel s Time Was Reasonably Spent. In litigating this case, class counsel used the same staffing model that has proven successful in other motor vehicle class actions. (See Gibbs Decl..) The litigation team consisted of the following members, whose primary responsibilities are briefly described: Eric. H. Gibbs As the senior partner, Mr. Gibbs was involved in case management and strategy decisions, review of pleadings and briefs, and negotiations. He handled court appearances in the case and personally led our settlement negotiations with Ducati. Dylan Hughes A junior partner, Mr. Hughes ran class counsel s investigation and discovery efforts. He oversaw our extensive communications with Ducati regarding evidence preservation and a discovery plan, and was also heavily involved in our settlement negotiations with Ducati. Geoffrey A. Munroe Mr. Munroe is a senior associate and was primarily responsible for pleadings and briefs. He drafted most of Plaintiffs filings in this case, participated in discovery negotiations, and assisted in framing the relief negotiated for the class. Amy M. Zeman Ms. Zeman is a junior associate who was responsible for a wide range of lower-level tasks. She performed legal research, assisted with our post-filing factual investigation, served as our primary attorney-contact for class members, and drafted settlement documents. She also assisted Mr. Munroe in drafting pleadings and briefs. Litigation Assistants Class counsel also relied heavily on a staff of highly competent college graduates for assistance throughout the litigation. In particular, our litigation assistants interviewed class members and completed factual research. To assist the Court in evaluating the reasonableness of the time spent on this case, class counsel has reviewed their daily time records and prepared a detailed summary of the work performed throughout the case. (See id., -.) Class counsel believes that this will be more helpful to the Court in assessing their time and contributions than would combing through daily records, and is sufficient as an evidentiary matter, but would be happy to provide the daily time records as well if the Court prefers. See Winterrowd v. Am. Gen. Annuity Ins. Co., F.d, (th Cir. 00) (when awarding fees under a California fee-shifting statute, [t]estimony of an attorney as to the number of CASE NO. :0-CV-0-JF

10 Case:0-cv-0-JF Document0 Filed/0/ Page0 of hours worked on a particular case is sufficient evidence to support an award of attorney fees ). The following narrative descriptions of the primary stages of the litigation will also, hopefully, give the Court a sense of the work required to obtain swift and effective relief for class members. To make the narrative easier to read, it is written at times in the first person plural ( we ) form, by which class counsel intends no disrespect. Initial Investigation: Our involvement began in early October 00, when Mr. Sugarman contacted us about the repeated fuel tank problems he was experiencing with his Ducati motorcycle. Initial efforts focused on understanding the nature and extent of the problem, which included retaining a materials scientist to help with the analysis. By combing through safety concerns lodged with NHTSA by Ducati owners, internet forums frequented by Ducati aficionados, and information gleaned from local Ducati dealers, we found that the plastic fuel tanks on Ducati motorcycles were deforming in what appeared to be large numbers, leading to three potential unsafe conditions: motorcycle instability as the fuel tank loosened from its mounts; steering impingement; and fuel leaks. (Gibbs Decl. -, 0.) Our investigation revealed that some Ducati owners were growing increasingly concerned with these potential safety issues and frustrated with Ducati s response. Owners reported that Ducati was not informing its customers that expansion-related problems could recur even after the warranty repairs that Ducati was providing free of charge, that Ducati dealerships weren t providing consistent information about the expansion-related problems, and that Ducati did not seem to be doing anything to provide a long-term solution to address the potentially unsafe conditions class counsel had identified. Class counsel spent a good deal of time analyzing potential consumer protection and warranty theories of recovery, including diving deep into federal and state regulations to analyze the federally-mandated -year emissions warranty that potentially covered fuel tank problems. (Id. 0.) While some recent cases in the Northern District had concluded that a manufacturer was not liable for replacing one defective part with another identical part that likewise failed, we believed that the presence of potential safety issues, the fact-based nature of the inquiry under warranty law, and other differing circumstances could lead to a different result and thus merited our involvement. Given our considerable experience in CASE NO. :0-CV-0-JF

11 Case:0-cv-0-JF Document0 Filed/0/ Page of these types of matters, however, we recognized the uncertainties and increasing difficulties plaintiffs face in litigating defective product class action cases. (See id. - &.) Before filing this lawsuit in mid-november 00, class counsel sent Ducati a pre-lawsuit demand letter setting forth our position that it was violating California consumer protection and warranty law, and requesting that it notify Ducati owners of fuel tank problems and the potential safety issues we had identified, and implement warranty repair procedures that would prevent recurrence of the potential safety issues. When Ducati did not respond to our demand letter, we filed suit on behalf of Mr. Sugarman seeking the same relief; Quang Le was added as an additional plaintiff a short time later. (Id., &.) Motorcycle Inspections, Evidence Preservation, and Other Early Litigation Activity: The parties expert consultants, accompanied by counsel, inspected Mr. Sugarman s motorcycle at a Ducati dealership in Florida and Mr. Le s motorcycle at a Ducati dealership in Los Angeles. And after Plaintiffs submitted declarations later in the litigation from other Ducati owners who experienced potentially unsafe conditions, the parties conducted another joint motorcycle inspection in Illinois. These inspections were time consuming not just because they were spread throughout the country, but because they involved technical and strategic issues of evidence preservation. Class counsel spent several weeks attempting to understand the issues that Ducati intended to contest, working with their expert consultant, Dr. Kasbekar, to determine the testing they might need to conduct prior to trial in light of those issues, and negotiating a protocol for removing, electronically scanning, and preserving the plaintiffs fuel tanks for later testing. (Id. -,, & -.) In addition to the evidence preservation negotiations, the parties engaged in ongoing correspondence and lengthy telephone conferences on several matters contemplated by Rule. We were able to negotiate a protocol for production of electronically stored information; a protective order under which our expert consultant would be pre-cleared to review any documents or materials Ducati might produce; and a subpoena protocol by which we could expediently obtain discovery from Ducati s Italian parent company. (Id.,, & -.) In confronting these issues early and thoroughly, our focus was on getting the case moving, as we realized that the relief we were requesting for the class notice of fuel tank problems and improved repairs would become less and less valuable to class CASE NO. :0-CV-0-JF

12 Case:0-cv-0-JF Document0 Filed/0/ Page of members as the litigation dragged out. The one issue we were unable to reach agreement on with Ducati, however, was early discovery. We discussed the types of documents that existed, Ducati s information technology, and document custodians so that we could craft topics that would be both informative to Plaintiffs and relatively easy for Ducati to produce promptly. We propounded targeted discovery requests and continued negotiating with Ducati in an effort to obtain the types of documents that in our experience are typically provided to auto companies executives in the event of a widespread problem summaries of field tests, warranty data, and failure analysis, for instance. Ducati, however, resisted producing any documents that were not strictly related to the named plaintiffs. (Id. & -.) Motion Practice: Ducati filed a motion to dismiss each of Plaintiffs warranty and consumer protection claims and also filed a motion to stay discovery until its motion to dismiss could be resolved. Class counsel prepared a fact-intensive opposition to the motion to stay that, among other things, explained the alleged safety issues with expert testimony and video evidence. Because the motion to stay was not scheduled to be heard for a few months (in effect giving Ducati the stay it was requesting), Plaintiffs filed their opposition well in advance and asked that the Court consider the motion at the upcoming case management conference, as an administrative motion, or on an expedited basis. Just prior to the case management conference, the parties ongoing meet and confer efforts resulted in Ducati s agreement to produce several of the categories Plaintiffs were requesting. That discovery proved instrumental to the relatively swift settlement that was later reached, as it allowed class counsel to combine Ducati s internal data with their own information and verify the precise problems that would need to be addressed on each model of Ducati motorcycle. (Id. - & -.) The briefing on Ducati s motion to dismiss was just as instrumental to resolution of the case, although it too was not ultimately heard. From Plaintiffs perspective, it proved extremely valuable in crystallizing the risk points for the class s warranty and consumer protection theories of recovery. In its moving papers, and in the Joint Case Management Conference Statement, Ducati had clearly set out its defenses. Many of those such as its contention that its warranty repairs were appropriate under the circumstances and that the expansion-related issues Plaintiffs had identified did not pose an unreasonable safety risk raised questions that could be resolved either way, including at the pleadings CASE NO. :0-CV-0-JF

13 Case:0-cv-0-JF Document0 Filed/0/ Page of stage, especially given the relative dearth of legal precedence on the issues. On the other hand, Ducati s filings provided Plaintiffs the opportunity to clearly demonstrate Ducati s risk points, making a negotiated resolution more appealing for both sides One final motion that bears mentioning is Plaintiffs Rule (g) motion for appointment as interim class counsel. The motion was a bit different than a typical Rule (g) motion in that it included testimony from several absent class members who had contacted us and were very concerned that the underlying issues be resolved as expeditiously as possible. At that point, class counsel had already incurred non-trivial expert fees and the out-of-pocket costs were set to markedly increase as Ducati produced its internal data for our analysis. We had asked Ducati to stipulate to our appointment as interim class counsel given the resources we were devoting for the class s benefit, but Ducati declined. The accounts of absent class members who had contacted us helped to demonstrate the need for interim class counsel, but also may have proved useful in responding to Ducati s argument that we had not pled sufficient non-conclusory facts to establish a plausible safety risk. (Id. &.) Discovery Productions and Initial Settlement Discussions: Several additional meet and confer sessions were required, but Ducati eventually produced the internal failure analyses, field reports, and cumulative warranty data Plaintiffs sought. We were able to use this information to understand the model-specific problems that were occurring as a result of fuel tank expansion and the types of improved repairs that would be necessary to address them. (Id., & -.) We also spent a good deal of time compiling and analyzing data collected directly from Ducati owners. As part of our ongoing investigation, we received feedback from approximately 00 Ducati owners about their fuel tanks and were able to conduct in-depth interviews with over 0 of these Ducati owners. In addition, about 00 Ducati owners had contacted NHTSA with safety concerns and other feedback, resulting in published accounts we folded into our data analysis. (Id.) We also learned that Ducati had developed a potential solution to the problems experienced by Mr. Le and decided to explore whether the solution was effective and whether similar solutions could be developed for other affected models. (Id. &.) In March, we followed up on our pre-lawsuit demand letter and after a preliminary discussion between counsel on possible model-specific repairs in New York, and a series of telephonic conferences, the parties agreed that an in-depth meeting was CASE NO. :0-CV-0-JF

14 Case:0-cv-0-JF Document0 Filed/0/ Page of appropriate, and that meeting should take place at Ducati s headquarters. (Id.) Armed with the results of discovery and their independent data analysis, class counsel and Dr. Kasbekar travelled to Bologna, Italy, for face-to-face meetings with Ducati s executives and engineers. Among other things, Plaintiffs expert was able to speak directly with Ducati s engineers about the fuel tank expansion process and proposed solutions to the model-specific issues Plaintiffs had identified. (Id. 0 &.) Settlement Negotiations: The parties continued to discuss improved warranty repairs for each model vehicle upon their return from Italy. Class counsel worked with their expert consultant to evaluate the efficacy of the proposed repairs and continued to talk to Ducati owners to ensure that the safety-related problems experienced on each motorcycle model were being adequately addressed. (Id. &.) Once the parties had tentative agreement on improved warranty repairs, class counsel began drafting settlement terms to implement those repairs through an extended warranty. Over the course of about two months, while motorcycle inspections and other discovery activities continued, the parties exchanged several draft settlement agreements and engaged in frequent negotiation sessions over the phone. (Id. &.) Negotiating extended warranty coverage for cosmetic repairs proved particularly daunting given the relative weakness of those claims. But class counsel knew that cosmetic issues were important to class members and were ultimately able to negotiate a -year extended warranty and a uniform standard for when fuel tanks should be replaced due to surface irregularities. Settlement Approval and Class Member Communication: The last several months of the litigation have been devoted to the settlement approval process. Class counsel have prepared preliminary approval papers, final approval papers, and this fee application, and worked with Ducati to prepare class notice. We have also worked hard to continue communicating with class members, answering their questions and responding to any concerns about the settlement. We sent an update to all the Ducati owners who had contacted us about their fuel tanks over the past year, posted information about the settlement on our firm website, and set up a dedicated phone line to take class member calls. Since notice was sent out, about 0 class members have contacted us about the settlement, whether to ask for clarification, request assistance obtaining repairs, express appreciation or objections, or simply to request updates regarding the settlement approval process. (Id. & -.) CASE NO. :0-CV-0-JF

15 Case:0-cv-0-JF Document0 Filed/0/ Page of We expect to continue devoting substantial time to the case over the next few weeks, as more class members contact us with questions or concerns and as we formally respond to objections.. Class Counsel s Hourly Rates Are Reasonable and Have Been Previously Approved as Such In Similar Litigation. Class counsel has used an almost identical litigation team in multiple automobile class action lawsuits recently and successfully litigated by the firm. (See id..) Of the four attorneys who worked on this case, Mr. Gibbs, Mr. Hughes, and Mr. Munroe each worked in similar capacities in Browne v. American Honda Motor Co., No. 0-CV-00 (C.D. Cal.) and Parkinson v. Hyundai Motor America, No. 0-CV-0, where their time was approved at the same hourly rates as class counsel is seeking here. See Browne, Doc. (Oct., 00); Parkinson, Doc. 0- (Sept., 00). Ms. Zeman is new to the team, but her responsibilities mirrored those of the junior associate in Browne and Parkinson, whose time was approved in both actions at a slightly higher hourly rate than is being requested for Ms. Zeman. (See Gibbs Decl. ; see also id. (sample of other motor vehicle class actions in which the firm s billing rates were approved); id., Exh. (Girard Gibbs firm résumé; Exh. (NLJ survey of 00 billing rates); Exh. (expert report regarding Girard Gibbs hourly rates).) A review of a few of the more recent fee approvals issued by Northern District judges also confirms that the hourly rates charged by class counsel are in line with the prevailing rates in the community for complex class action litigation. In August 0, Judge Chen approved attorney fees calculated with hourly rates ranging from $00-$ for attorneys and $-$ for professional staff. In re Wells Fargo Loan Processor Over-Time Pay Litigation, No. C-0-, 0 WL 0, at *0 (N.D. Cal. Aug., 0); Wells Fargo, Dkt. No. (Decl.). In July 0, Judge Breyer approved attorney fees checked against a lodestar calculated with hourly rates ranging from $0-$00 for associates and $00-$00 for partners. In re Nuvelo, Inc. Securities Litig., No. C-0-00, 0 WL 0, at * (N.D. Cal. July, 0); Nuvelo, Dkt. No. - (Decl.), Exh.. In June 0, Judge Koh approved attorney fees calculated with hourly rates ranging from $0-$ for paralegals and $0-$0 for attorneys. Buccellato v. AT&T Operations, 0 CASE NO. :0-CV-0-JF

16 Case:0-cv-0-JF Document0 Filed/0/ Page of Inc., No. C-0-00, 0 WL, at * (N.D. Cal. June 0, 0); Buccellato, Dkt. No. (Decl.), Exh. A. In April 0, Judge Alsup approved attorney fees checked against a lodestar calculated with hourly rates ranging from $0 for paralegals, $-$ for associates, and $0- $0 for partners. In re Charles Schwab Corp. Securities Litig, No. 0-00, 0 WL, at * (N.D. Cal. Apr., 0); see Schwab, Dkt. No. (Decl.).. Class Counsel s Work in this Case Would Likely Justify An Upward Adjustment, Making Ducati s Agreement To Pay Class Counsel s Lodestar Reasonable and Non-Collusive. The final step in the lodestar/multiplier method is to consider whether an upward or downward adjustment of the lodestar calculation is appropriate. The various factors courts consider when assigning a multiplier include: () The risks presented by the litigation; () The novelty and difficulty of the questions involved; () The results obtained on behalf of the class; and () The skill exhibited by counsel. See, e.g., In re Consumer Privacy Cases, Cal. App. th at. These factors, which are discussed briefly below, demonstrate that class counsel could very well have obtained an upward adjustment for their work in this case. In wholly-contingent consumer class actions that yield positive results for class members, like this case did, California courts have awarded fees using multipliers of or higher. See, e.g., Wershba v. Apple Computer, Inc., Cal. App. th, (00) ( Multipliers can range from to or even higher. ); Chavez v. Netflix, Inc., Cal. App. th, (same). Ducati therefore faced a real risk that it would end up paying more than $,000 were it to litigate the issue of fees. Because Ducati did not consent to a figure that was measurably higher than it could conceivably have had to pay were the fee litigated, see Staton, F.d at, Ducati s agreement to pay $,000 in fees should be viewed as a legitimate fee settlement and accordingly approved by the Court. CASE NO. :0-CV-0-JF

17 Case:0-cv-0-JF Document0 Filed/0/ Page of Risk Presented and Novelty and Difficulty of Issues Presented. One of the primary purposes of awarding a fee multiplier is to compensate counsel at a rate reflecting the risk of nonpayment in contingency cases. See Ketchum v. Moses, Cal. th, (00); id. at ( A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases. ) (citation omitted). Class counsel assumed a significant risk when they filed this case. In seeking improved warranty repairs, class counsel was confronted with two Northern District cases that rejected a similar theory in the computer context. See Brothers v. Hewlett-Packard Co., No. 0-, 00 WL, at * (N.D. Cal. Feb., 00); Long v. Hewlett-Packard Co., No. C-0-0, 00 WL, at * (N.D. Cal. July, 00). Ducati thus had a tenable argument that by replacing deformed fuel tanks with new fuel tanks, it was complying with the literal terms of its repair or replace warranty provisions as a matter of law. And even if Plaintiffs prevailed on the pleadings, the question of whether Ducati s existing repairs were appropriate under the circumstances raised a factual issue that was hardly clear cut under existing law. Since Daugherty v. American Honda, Cal. App. th (00), California courts have been hesitant to impose obligations on manufacturers outside of the warranty period, as Plaintiffs were asking the Court to do here. An oft-cited exception for safety issues has developed, but it is unclear precisely what level of safety risk is required. Despite what appeared to be significant safety concerns amongst Ducati owners, the fact remained that class counsel has yet to encounter anyone who suffered personal injury or an accident as a result of fuel tank expansion (nor did Ducati identify such a person in discovery). In addition, NHTSA had conducted a preliminary investigation into fuel tank issues on some of the motorcycles involved in the class and concluded that Monster motorcycles did not exhibit a current safety defect trend and that fuel leakage on Multistrada motorcycles was unrelated to fuel tank deformation. To this day, Ducati remains steadfast that none of the fuel tank issues Plaintiffs have identified pose any ultimate safety risk to consumers. Other risk points are discussed in Plaintiffs motion for final approval and are evident throughout Ducati s motion to dismiss. In short, this case presented unique issues in warranty and CASE NO. :0-CV-0-JF

18 Case:0-cv-0-JF Document0 Filed/0/ Page of consumer protection law that were far from certain to prevail and faced a mounting body of case law denying consumers recovery under similar legal theories in other contexts. And because the case was fairly technical in nature, it required an outlay of expert fees and other out-of-pocket expenses that might never have been recovered had Ducati s motion to dismiss been granted or had Ducati otherwise prevailed. (See Gibbs Decl. (attesting to $0,0.0 in litigation expenses.) In such a situation, an upward adjustment of the lodestar would be justified to compensate class counsel for the added risk they took on for the ultimate benefit of the class. Result Achieved; Skill Exhibited by Plaintiffs Counsel. Despite the risks involved, class counsel have been able to achieve the goals of the lawsuit: Ducati agreed to provided class members with notice of potentially unsafe conditions and also to implement improved warranty repairs that will alleviate those risks. The corrective repairs have been tailored to address the potentially safety-related problems observed in each of the eight model families with plastic fuel tanks, and will be available to class members free of charge until either six years after the date of sale or eighteen months after the settlement becomes final, whichever provides longer coverage. Class counsel even succeeded in obtaining a -year extended warranty and objective standard for purely cosmetic repairs, despite the fact that those non-safety related claims are relatively weak in the wake of Daugherty. (See also Pls. Motion for Final Approval at - (further discussing the strength of the settlement).) The speed with which class counsel was able to obtain these benefits for the class is also significant. Notice and improved repairs would have become less and less valuable to class members had the litigation dragged on. By working for early discovery and, in turn, an early resolution, class counsel have maximized the value for class members. The overall result is worthy of an upward adjustment to class counsel s lodestar and is yet another reason why Ducati s decision to settle class counsel s fee claim for $,000 is reasonable and should be approved. See In re Vitamin Cases, No. 00, 00 WL, at * (Cal. Sup. Ct. Apr., 00) (affirming multiplier of.0) ( Limiting Plaintiffs' Counsel's multiplier because no class certification motion was filed or trial conducted would create a perverse financial incentive where, as here, Plaintiffs' Counsel negotiated an outstanding recovery without subjecting their clients to the uncertainties of class certification or trial. ). CASE NO. :0-CV-0-JF

19 Case:0-cv-0-JF Document0 Filed/0/ Page of C. The Service Awards Requested Are Also Reasonable and Appropriate. The Court has discretion to approve service awards (sometimes referred to as incentive awards ) to compensate class representatives for work done on behalf of the class. Rodriguez, F.d, (th Cir. 00) ( Incentive awards are fairly typical in class action cases. ). Here, Plaintiffs seek service awards of $,00 for both Mr. Sugarman and Mr. Le a reasonable amount considering their contributions to the litigation and well within the range of awards approved in recent class action litigation. See, e.g., Kent v. Hewlett-Packard Company, No. :0-CV-0, 0 WL 0, at * (N.D. Cal. Sept. 0, 0) (approving service awards not to exceed $000 per named Plaintiff); In re Wells Fargo Loan Processor Over-Time Pay Litigation, No. C-0-, 0 WL 0, at * (N.D. Cal. Aug., 0) (finding reasonable $00 service awards to three named Plaintiffs). Plaintiffs also seek service awards of $,00 for two class members, Frank White and Jerrick Torres, who retained Girard Gibbs LLP in this action, provided detailed information about their fuel tank expansion problems, submitted declarations to the Court in conjunction with Plaintiffs motion to appoint interim counsel, and submitted to inspections of their motorcycles. See In re Wells Fargo, 0 WL 0, at * (approving $000 service awards to non-named Plaintiffs who responded to written discovery and were deposed); Kent, 0 WL 0, at * (service awards compensate for assuming significant burdens during the litigation: retaining counsel, producing documents, responding to written discovery, and conferring with counsel. ). Only after agreeing on the terms for class relief did the parties discuss and agree upon the amounts of the requested service awards. (Gibbs Decl..) The amounts reflect a realistic assessment of the efforts expended by Mr. Sugaman, Mr. Le, Mr. White, and Mr. Torres, including (i) providing detailed descriptions of their experiences with fuel tank expansion; (ii) agreeing to postpone necessary repairs, even though their motorcycles remained largely unrideable until the delayed repairs were made, and accommodating motorcycle inspections that provided valuable information and evidence in the litigation; (iii) reviewing personal records and providing the bulk of almost,00 pages of documents produced to Ducati; and (iv) preparing detailed declarations about their fuel tank expansion problems. Zeman Decl. -. The commitment of personal time and tolerance of considerable inconvenience has CASE NO. :0-CV-0-JF

20 Case:0-cv-0-JF Document0 Filed/0/ Page0 of provided benefits to over,000 class members and warrants the Court s approval of the requested service awards. III. CONCLUSION For the reasons stated above, Plaintiffs respectfully request that the Court approve an $,000 award of fees and costs to class counsel pursuant to Rule (h), and also approve an award of $,00 each to Mr. Sugarman, Mr. Le, Mr. White, and Mr. Torres. DATED: December 0, 0 Respectfully submitted, GIRARD GIBBS LLP By: /s/ Eric H. Gibbs Eric H. Gibbs Dylan Hughes Geoffrey A. Munroe Amy M. Zeman 0 California Street, th Floor San Francisco, CA 0 Telephone: () -00 Facsimile: () - Attorneys for Plaintiffs CASE NO. :0-CV-0-JF