Memorandum - Fees and Costs - Final

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28 1MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES

AND PLAINTIFF SERVICE AWARDS

CHAVEZ & GERTLER, LLPJonathan Gertler (Bar No. 111531)42 Miller AvenueMill Valley, CA 94941Telephone: (415) 381-5599Facsimile: (415) 381-5572

CLARK & MARKHAMR. Craig Clark (Bar No. 129219) David R. Markham (Bar No. 071814)600 B Street, Ste. 2130San Diego CA 92101Telephone: (619) 239-1321Facsimile: (619) 239-5888

Attorneys for PlaintiffAdditional counsel listed on signature page.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

LISA L. CONNELL, an individual, on behalfof herself, and on behalf of all personssimilarly situated,

Plaintiffs,

vs.

SUN MICROSYSTEMS, INC, a DelawareCorporation with its principal place ofbusiness in California, and Does 1 to 100.

Defendants.

Case No. RG06252310

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF MOTIONFOR AWARD OF ATTORNEY FEES ANDLITIGATION EXPENSES

[C.R.C. § 3.769]

Date: November 12, 2008Time: 3:00 p.m.

Dept: 17Judge: Hon. Steven Brick

Complaint filed: January 25, 2006 Trial date: None set

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28 iMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES


TABLE OF CONTENTS

I. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. THE ATTORNEYS' FEES REQUESTED ARE FAIR AND REASONABLE AND SHOULD BE APPROVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. THE AGREEMENT FOR THE PAYMENT OF FEES AND EXPENSES IS APPROPRIATE AND SHOULD BE ENFORCED . . . . . . . . . . . . . . 6

B. CLASS COUNSEL’S FEE AWARD IS APPROPRIATELY AWARDED UNDER THE LODESTAR/MULTIPLIER APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. THE SERRANO AND LEALAO FACTORS WARRANT LODESTAR ENHANCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. THE NOVELTY AND DIFFICULTY OF THE QUESTIONS INVOLVED AND THE SKILL DISPLAYED IN PRESENTING THEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2. THE EXTENT TO WHICH THE NATURE OF THE LITIGATION PRECLUDED OTHER EMPLOYMENT AND ADDITIONAL FACTORS SET FORTH IN LEALAO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. THE CONTINGENT NATURE OF THE FEE AWARD, BOTH FROM THE VIEW OF EVENTUAL VICTORY ON THE MERITS AND THE POINT OF VIEW OF ESTABLISHING ELIGIBILITY FOR AN AWARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

4. THE REQUESTED AWARD COMPARES FAVORABLY TO THE RESULT ACHIEVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. CLASS COUNSEL IS ALSO ENTITLED TO REIMBURSEMENT OF THE OUT OF POCKET COSTS AND EXPENSES INCURRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. THE CLASS REPRESENTATIVES SHOULD RECEIVE THE REQUESTED SERVICE AWARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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28 iiMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES


TABLE OF AUTHORITIES

Cases: Page

Arenson v. Board of Trade, 372 F.Supp. 1349, 1354 (N.D. Ill. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

Bagwell v. Florida Broadband, 2005 WL 1962562, (S.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D.Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Blum v. Stenson, 465 U.S. 886, 902 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Bogosian v. Gulf Oil Corp., 621 F. Supp. 27 (E.D. Pa. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Craft v. County of San Bernardino, 2008 U.S. Dist. LEXIS 27526 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 338 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1431-32 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

Dunk v. Ford Motor Co., 48 Cal.App.4th 1794, 1801 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Evans v. Jeff D., 475 U.S. 717, 734-35, 738 n.30 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Glendora Community Redevelopment Agency v. Demeter 155 Cal.App.3d 465, 479- 481 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hickman v. United States, 105 Lab. Cas. (CCH) P34,866; 1986 U.S. Cl. Ct. LEXIS 826 (1986) . . . . . . . . . . . . . . . . . . . 4

Hobbs v. Roth Staffing Cos., 2007 Cal. App. Unpub. LEXIS 796 (January 30, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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28 iiiMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES


In re Activision Sec. Litigation, 723 F. Supp. 1373, 1377-78 (N.D. Cal. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re Immune Response Secs. Litig., 497 F. Supp. 2d 1166, 1176 (S.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re King Resources Co. Securities Litig., 420 F.Supp. 610, 634 (D. Colo. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

In re Remeron Direct Purchaser Antitrust Litigation, 2005 U.S. Dist. LEXIS 27013 (D.N.J. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

In Re Rite-Aid Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re RJR Nabisco, Inc. Sec. Litig., Fed. Sec. L. Rep. (CCH) P 96,984 (S.D.N.Y. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Warner Communications Sec. Lit, 618 F.Supp. 735, 749-50 (S.D. N.Y. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Koppinger v. American Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

Lealao v. Beneficial California, 82 Cal.App.4th 19, 32 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 6, 7, 9, 12, 14

McKittrick v. Gardner, 378 F.2d 872, 875 (4th Cir.1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1098 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 10

Powers v. Eichen, 229 F.3d 1249, 1256 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Press v. Lucky Stores, Inc.. 34 Cal. 3d 311, 322 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rabin v. Concord Assets Group Inc., 1991 U.S. Dist. LEXIS 18273, Fed. Sec. L. Rep. (CCH) ¶ 96,471 (S.D.N.Y. 1991) . . . . . . . . 7

Raper v. State of Iowa, 688 N.W.2d 29, 43 (Iowa 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rausch v. Hartford Fin. Servs. Group, 2007 U.S. Dist. LEXIS 14740 (D. Ore 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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28 ivMEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES


Rebney v. Wells Fargo Bank, 232 Cal.App.3d 1344, 1347 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rievman v. Burlington Northern Railroad Co., 118 F.R.D. 29, 35 (S.D.N.Y. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

Roberts v. Texaco, Inc., 979 F. Supp. 185, 197 (S.D.N.Y. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Serrano v. Priest, 20 Cal.3d 25, 49 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 9, 10

Shillinglaw v. System Works, Inc., 1993 U.S. Dist. LEXIS 21358 (N.D. Ga. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Steiner v.BOC Financial Corp., 1980 U.S. Dist. LEXIS 14561; Fed.Sec.L.Rep.(CCH) ¶ 97,656 (S.D.N.Y. 1980) . . . . . . . . . 13

Sternwest Corp. v. Ash 183 Cal.App.3d 74, 75 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7, 9, 14

Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1176 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Weiss v. Mercedes-Benz of N. Amer., Inc., 899 F. Supp. 1297(D.N.J. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 9, 10

Statutes:

29 C.F.R. § 541.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

29 C.F.R. § 541.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

Secondary Authorities:

3 Newberg & Conte, Newberg on Class Actions, §14.03 at 14-5 (3d ed. 1992) . . . . . . . . . . . . . . 9, 14

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1 The procedural history of this action, the discovery conducted, the settlement negotiations, and therisks of litigation and of establishing liability and damages at trial are described in Plaintiff's Memorandum in Support of Settlement (the “Settlement Memorandum”) to which the Courts' attentionis respectfully invited.

1MEMORANDUM OF P&A IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES, LITIGATION EXPENSES


I. PRELIMINARY STATEMENT

After over two years of litigation, culminating in a full-day mediation before preeminent wage and

hour litigator and mediator, Mark Rudy, Class Counsel successfully negotiated a Settlement which provides

for a common fund of $5,800,000.00, plus the employer’s share of payroll taxes, as payment in full of all

of Plaintiffs’ claims arising from the events described in the Complaint, including Class Counsel’s

attorneys’ fees costs and expenses, service payment to the Class Representative and the cost of class notice

and claims administration. This Court granted preliminary approval of the Class Settlement on July 24,

2008 and notice of the Settlement was mailed to the Class Members as ordered by the Court.

Not one Class Member has objected to the requested attorney fee award of $1,740,000.00 and the

award is not opposed by Defendant Sun Microsystems, Inc. (“Sun”). The award is most certainly reasonable

and appropriate under the lodestar multiplier approach, which has been adopted by California Courts.

Lealao v. Beneficial California, 82 Cal.App.4th 19, 32 (2000). In this case, Class Counsel’s combined

lodestar totaled $1,625,567.75, which means the requested fee award represents Class Counsel’s lodestar

with a nominal multiplier of 1.07. Further, the requested fee award compares favorably when “cross-

checking” the amount against the value of the class recovery, because the requested fee award represents

30% of the common fund. See Lealao, supra, 82 Cal. App. 4th at 24, 45.

The requested fee award of $1,740,000 is no doubt reasonable and appropriate in light of the novelty

of this case, the amount and difficulty of the work required, the risks undertaken, and the results achieved,

all of which support this award representing only a nominal multiplier enhancement of Class Counsel’s

lodestar.1 Serrano v. Priest, 20 Cal.3d 25, 49 (1977). The requested multiplier is therefore warranted and

well within the accepted range for class action attorneys fee multipliers. Wershba v. Apple Computer, 91

Cal. App. 4th 224, 255 (2001) (“multipliers can range from 2 to 4 or even higher”). Class Counsel also

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respectfully requests that this Court approve the payment of costs in the amount of $49,437.52 and the Class

Representative’s incentive award in the amount of $25,000 for Plaintiff Lisa Connell.

II. SUMMARY OF ARGUMENT

In California, Courts start with the lodestar-multiplier method for the determination of an attorney’s

fee award and then utilize “the common federal practice of ‘cross-checking’ the lodestar against the value

of the class recovery.” Lealao, 82 Cal. App. 4th at 45.

In this case, Class Counsel’s lodestar is the reasonable number of hours expended for the services

provided with rates calculated at prevailing market rates for the same services if performed on an hourly

basis for hourly clients in hourly cases. See Decl. Gertler at ¶ 10. The lodestar figure must be adjusted

upward based on the consideration of the specific factors in order to fix the fee award at the fair market

value for the legal services provided in a contingent fee case. Lealao, 82 Cal.App.4th at 40, citing Press

v. Lucky Stores, Inc.. 34 Cal. 3d 311, 322 (1984). As stated by the Courts in Lealao, and Serrano these

enhancement factors include the following:

(a) The novelty and difficulty of the questions presented;

(b) The skill of the attorneys;

(c) The preclusion of other employment;

(d) The contingent risk of the action;

(e) The results achieved;

Consideration of each of these factors in this case supports a substantial enhancement or multiplier of Class

Counsel’s lodestar.

In defining a reasonable fee, the Court’s should mimic the marketplace for cases involving a large

contingent risk such as this one. Lealao, 82 Cal.App.4th at 49. Id. In so doing, the Court should recognize

that Class Counsel devoted 3,232.60 attorney and paralegal hours and advanced $49,437.52 in costs to

prosecute this case, risking that none of this expenditure of time or money would be recouped. Other courts

which have reviewed similar contingent fee class action cases routinely approved the award of multipliers

of between 2 and 4. Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) (“multipliers can range

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from 2 to 4 or even higher”); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) (3.65

multiplier approved because of substantial risk); Rievman v. Burlington Northern Railroad Co., 118 F.R.D.

29, 35 (S.D.N.Y. 1987) ("In recent years, multipliers between 3 and 4.5 have been common"). Here, Class

Counsel seeks a nominal lodestar multiplier of 1.07, which is well below the accepted range for class action

lodestar multipliers.

There is a substantial difference between the risk assumed by attorneys being paid by the hour and

attorneys working on a contingent fee basis. The attorney being paid by the hour can go to the bank with

his fee. Powers v. Eichen, 229 F.3d 1249, 1256 (2000). The attorney working on a contingent basis can

only log hours while working without pay towards a result that will hopefully entitle him to a market place

contingent fee taking into account the risk and other factors of the undertaking. Id., at 1257. Otherwise,

the contingent fee attorney receives nothing. Id. In the case at bar, Class Counsel subjected themselves to

this contingent fee market risk in this all or nothing contingent fee case wherein the necessity and financial

burden of private enforcement makes the requested award appropriate. Decl. Gertler at ¶ 10.

A $1,740,000.00 contingent fee award, representing a nominal lodestar multiplier of 1.07, mimics

the market place because this was the amount negotiated in arms-length adversarial negotiations between

opposing counsel who deal in the market place and subject themselves to market forces on a daily basis.

Lealao, 82 Cal.App.4th at 48. This amount was also the amount recommended and approved by the

mediator as reasonable and appropriate. This action is an example of a private action that resulted in the

enforcement of substantive provisions of labor law that substantially benefits the members of the Class

financially and will benefit the public interest by deterring others from committing similar acts. Given the

unique reliance of our legal system on private litigants to enforce substantive provisions of law in class

actions, attorneys providing these substantial benefits should be paid an award equal to the amount

negotiated in private bargaining that takes place in the legal market place. Deposit Guaranty Nat. Bank,

Jackson, Miss. v. Roper (1980) 445 U.S. 326, 338, rehg. denied, 446 U.S. 947.

At the time this case was brought, the result was far from certain. Sun’s practice at issue here had

been in place for years before 2002. Sun’s numerous defenses to the case created difficulties with proof and

novel legal issues in the uncharted waters of overtime wages with respect to IT professional and technical

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2 In Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1431-32 (2006), the Court of Appealrecently affirmed an order denying class certification to a class of employees who claimed that theywere denied overtime pay holding that the issue of whether an exemption applied would have to beindividually determined for each class member, which meant that common issues did not predominate. See also Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440 (2007) (upholding the decertification ofan overtime class action).

3 See e.g. Dunbar v. Albertson's, Inc., 141 Cal. App. 4th at 1431-32; Shillinglaw v. System Works,Inc., 1993 U.S. Dist. LEXIS 21358 (N.D. Ga. 1993) (holding that a computer programmer/analyst wasan exempt administrative employee); Hickman v. United States, 105 Lab. Cas. (CCH) P34,866; 1986



support engineers, which Class Counsel was required to overcome in order to be successful. For example,

were the Plaintiff’s and Class Members’ claims barred from recovery by the “administrative exemption”

by analogy set forth in 29 C.F.R. Section 541.402 as was held in Koppinger v. American Interiors, Inc., 295

F. Supp. 2d 797 (N.D. Ohio 2003)? Decl. Gertler at ¶ 10(e). Did Class Members perform work that was

“directly related to management or general business operations” within the meaning of the administrative

exemption and/or 29 C.F.R. § 541.201(a)(b)? Were IT-related positions exempt under the professional

exemption as was held in Bagwell v. Florida Broadband, 2005 WL 1962562, (S.D. Fla. 2005)? Would

Plaintiff be able to maintain class certification at trial and thereby recover on behalf of Sun’s employees?2

Could the hours of overtime be accurately calculated for the Class Members? All of these issues presented

very substantial risks, any one of which could have resulted in the Class receiving nothing.

The Settlement was possible only because Class Counsel had been able to achieve class certification

for all Class Members and convince Sun that Class Counsel could potentially prevail on the novel legal

issues regarding overtime compensation for IT personnel and technical support engineers and overcome

difficulties in proof as to monetary relief.

In successfully navigating these hurdles so as to convince Sun to settle, Class Counsel displayed

skills beyond those that might be expected of attorneys of comparable expertise or experience. Here, Class

Counsel was pursuing a difficult and risky claim where previous overtime cases involving computer

programmers and IT personnel had failed to establish liability for overtime, failed to obtain class

certification without a representative for each job position and/or failed to obtain monetary recovery for

these employees.3

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U.S. Cl. Ct. LEXIS 826 (August 8, 1986) (electronics technician and computer equipment analyst wereexempt under the administrative exemption); Raper v. State of Iowa, 688 N.W.2d 29, 43 (Iowa 2004);Hobbs v. Roth Staffing Cos., 2007 Cal. App. Unpub. LEXIS 796 (January 30, 2007). While Hobbs hasno precedential value since the case is not a published opinion, the holding further supports theconclusion that there was a significant risk that class certification might also have been denied in thiscase.



Class Counsel’s skill in presenting this case in a novel way to overcome the difficulties that

prevented recovery in previous unsuccessful computer programmer overtime wage cases is all the more

compelling given the exceptional and well recognized quality of Sun’s Counsel from the prestigious,

capable, and well-staffed law firm of Wilson, Sonsini, Goodrich & Rosati PC. See In re King Resources

Co. Securities Litig., 420 F.Supp. 610, 634 (D. Colo. 1976); Arenson v. Board of Trade, 372 F.Supp. 1349,

1354 (N.D. Ill. 1974). To represent the Class on a contingent fee basis, Class Counsel had to forego

compensable hourly work on other cases at the same rate so as to devote the necessary time and resources

to this contingent case. In so doing, Class Counsel gave up the hourly work that a firm can bank on for the

risky contingent fee work in this case which could have paid Class Counsel nothing. Decl. Gertler at ¶

10(f); Powers, supra, 229 F.3d at 1256.

Class Counsel also requests an award of costs in the amount of $49,437.52. Class Counsel expended

$49,437.52 in unreimbursed costs in prosecuting this action on behalf of the Class. The Notice informed

the Class that Class Counsel would seek reimbursement of costs not to exceed $125,000.00, and not one

member of the Class objected to the reimbursement of costs and expenses. Finally, Class Counsel requests

that the Court approve payment of the agreed service award to Plaintiff Lisa Connell in the amount of

$25,000 for her work and participation in this case. The payment of service awards to successful class

representatives is appropriate and the amount of $25,000 is well within the currently accepted range. See

e.g. Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995) (incentive award

of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990)

(incentive awards of $ 55,000). Sun has agreed to this service award to the Plaintiff, and after notice to the

Class of this requested service award, not one member of the Class has objected to the award.

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For all of these reasons as discussed in detail herein, Plaintiff respectfully submit that the cost award

of $49,437.52, the attorney’s fee award of $1,740,000 (representing Class Counsel’s lodestar with a 1.07

multiplier), and Plaintiff Connell’s incentive award of $25,000 should be awarded in accordance with the

Settlement Agreement.

III. THE ATTORNEYS' FEES REQUESTED ARE FAIR AND REASONABLE AND SHOULDBE APPROVED

A. THE AGREEMENT FOR THE PAYMENT OF FEES AND EXPENSES ISAPPROPRIATE AND SHOULD BE ENFORCED

The United States Supreme Court has ruled that the parties to a class action properly may negotiate

not only the settlement of the action itself, but also the payment of attorneys' fees. See Evans v. Jeff D., 475

U.S. 717, 734-35, 738 n.30 (1980). In Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), the Supreme Court

held that negotiated, agreed-upon attorneys’ fee provisions are the ideal towards which the parties should

strive:

A request for attorney's fees should not result in a second major litigation. Ideally, of course,litigants will settle the amount of a fee." Id.

California’s Supreme Court agrees:

We do not want a [trial] court, in setting an attorney's fee, [to] become enmeshed in ameticulous analysis of every detailed facet of the professional representation. It . . . is not ourintention that the inquiry into the adequacy of the fee assume massive proportions, perhapsdwarfing the case in chief.

PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1098 (2000); see also Lealo, supra, 82 Cal.App. 4th at 47-48.

The United States Supreme Court has reemphasized this policy and further stressed that the trial court

“has a responsibility to encourage agreement” on fees. Blum v. Stenson, 465 U.S. 886, 902 n.19 (1984).

Here, as part of the Settlement, Sun agreed not to object to an award of $1,740,000 for Class Counsel’s

attorneys’ fees. Such a fee is commensurate with what the market would provide for similar services and

the Court therefore can most certainly enforce the agreement. Decl. Gertler at ¶ 10(g).

The reasonableness of the requested fee can be evidenced by the fact that it compares favorably to

Class Counsel’s overall lodestar calculation in this case. See Vizcaino, supra, 290 F.3d at 1050 (“lodestar

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4 Emphasis added and internal citations omitted unless otherwise noted.

5 Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) (3.65 multiplier approvedbecause of substantial risk) Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 549 (S.D.Fla.1988)(court applied multiplier of 3, noting that this was "average" for a large complicated class actionwhere multipliers ranged from 2.26 to 4.5); Rievman v. Burlington Northern Railroad Co., 118 F.R.D.29, 35 (S.D.N.Y. 1987)("In recent years, multipliers between 3 and 4.5 have been common"); Rabin v.Concord Assets Group Inc., 1991 U.S. Dist. LEXIS 18273 at * 4, Fed. Sec. L. Rep. (CCH) ¶ 96,471(S.D.N.Y. December 19, 1991) (court applied multiplier of 4.4, noting that in recent years multipliersfrom 3 to 4.5 have commonly been awarded).



[method] may provide a useful perspective on the reasonableness of a given [fee] award.”) As the United

States Supreme Court has instructed:

Given the unique reliance of our legal system on private litigants to enforce substantiveprovisions of law through class and derivative actions, attorneys providing the essentialenforcement services must be provided incentives roughly comparable to thosenegotiated in the private bargaining that takes place in the legal marketplace, as it willotherwise be economic for defendants to increase injurious behavior.

Deposit Guaranty Nat. Bank, supra, 445 U.S. at 338.4

In the class action context, that means “attempting to award the fee that informed private bargaining,

if it were truly possible, might have reached.” Lealao, 82 Cal.App.4th at 48. Here, informed arms-length

bargaining between experienced counsel for the Class and Sun resulted in Sun bargaining Class Counsel’s

award down to their lodestar with a nominal 1.07 multiplier, which is on the low end of the common

benchmark of a full lodestar with a 2 to 4 multiplier enhancement. Decl. Gertler at ¶ 9(b). The bargaining

was clearly adversarial and arms length as the amount was the result of a mediator’s proposal. Such

bargaining is obviously the best measure of the market for fees. Deposit Guaranty, supra, 445 U.S. at 338.

Moreover, fee awards in actions brought under the same or comparable statutes as this one have resulted

in substantially higher fees than the sum sought by Class Counsel herein, further reflecting the accurate

market value of the award requested.5 In Wershba v. Apple Computer, 91 Cal. App. 4th at 255 , the

Court noted that “multipliers can range from 2 to 4 or even higher.”

The requested fee award, agreed to by the parties as part of the Settlement, should be approved. The

requested fee award was bargained for during arms’ length adversarial bargaining by counsel for each of

the parties as part of the Settlement, and is substantially less than sums awarded in comparable litigation

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where a multiplier enhances the lodestar amount. Decl. Gertler at ¶9(c). In order to achieve an agreement,

recognized wage and hour litigator and mediator, Mark Rudy, had to intervene in the negotiations with a

mediator’s proposal which he recommended as the fair and appropriate amount. The requested fee was a

product of arms-length negotiations and fairly reflects the marketplace value of the services rendered by

Class Counsel in this case. As a result, this sum recommended by Mr. Rudy, and accepted by both parties,

can and should be approved by this Court.

B. CLASS COUNSEL’S FEE AWARD IS APPROPRIATELY AWARDED UNDER THELODESTAR/MULTIPLIER APPROACH

The method for assessing whether a fee award in a consumer class action such as this one is

reasonable is the lodestar/multiplier method. The lodestar amount is calculated by multiplying the

reasonable hours spent by counsel by the reasonable hourly rate for those lawyers. The lodestar figure can

then be multiplied based on a number of factors specific to the litigation. Dunk v. Ford Motor Co., 48

Cal.App.4th 1794, 1801 (1996); Rebney v. Wells Fargo Bank, 232 Cal.App.3d 1344, 1347 (1991); Serrano,

supra, 20 Cal. 3d at 48-49. Recently, the California Supreme Court re-affirmed this lodestar approach:

The reasonable hourly rate is that prevailing in the community for similar work. (Id. atp.1004; Shaffer v. Superior Court, (1995) 33 Cal. App. 4th 993, 1002.). The lodestar figuremay then be adjusted, based on consideration of factors specific to the case, in orderto fix the fee at the fair market value for the legal services provided. (Serrano v. Priest,supra, 20 Cal. 3d at p.49.)

PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000).

In this case, the lodestar multiplier approach clearly supports the reasonableness and propriety of

the requested fee. As part of this Settlement, Class Counsel agreed to a fee award equal to their lodestar

with a 1.07 multiplier which is well below within the accepted norm of multipliers of 2 to 4. Class

Counsel’s fee request is $1,740,000.00, and the billing records evidence that the combined lodestar for Class

Counsel is currently $1,625,567.75, which represents a nominal multiplier of 1.07. Decl. Gertler ¶12. After

the mediator proactively intervened in the settlement negotiations and recommended a fee as part of his

mediator’s proposal that was on the low end of the range of fees for similar class actions, Class Counsel had

no choice but to accept this recommended fee, to avoid jeopardizing the Settlement that is very favorable

to the Class in that Class Counsel was able to settle for $5.8 million as an all-in amount without a reversion

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to Sun. Class Counsel therefore respectfully request a reasonable and justified fee award of $1,740,000.00

in accordance with the Settlement Agreement.

C. THE SERRANO AND LEALAO FACTORS WARRANT LODESTARENHANCEMENT

In Serrano v. Priest, 20 Cal.3d 25 (1977), the California Supreme Court set forth various factors the

trial court may use in augmenting the lodestar figure. Among the factors to be considered are the novelty

and difficulty of the questions involved, the skill displayed in presenting them, the extent to which the nature

of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award,

both from the point of view of eventual victory on the merits and the point of view of establishing eligibility

for an award. Serrano, supra, 20 Cal.3d at 49. Additional factors to be considered to determine

enhancement of the lodestar were set forth in Lealao as well and include whether any class members have

objected to the fee award sought, whether class counsel subordinated their own economic interests to that

of the class, the amount of the settlement, and whether the settlement was prompt and should be rewarded

accordingly. Lealao, supra, 82 Cal.App. 4th at 50-53. All of these factors support a multiplier in this case

that is within the accepted benchmark range of 2 to 4.

In large complicated class actions such as this, multipliers in the 2 to 4 range are the norm, even

when the issues presented therein are relatively routine. See e.g 3 Newberg & Conte, Newberg on Class

Actions, §14.03 at 14-5 (3d ed. 1992); Wershba, supra, 91 Cal. App. 4th at 255 (multiplier of two to four

frequently awarded). In Vizcaino, supra, the Ninth District Court of Appeals reviewed the authority on

multiplier awards, and noted that the majority of multipliers awarded were in the 1.5 to 3 range. In

California, many cases have recognized that multipliers of 4 or even more may be used under certain special

facts and circumstances. Lealao, 82 Cal.App.4th at 52; see also Glendora Community Redevelopment

Agency v. Demeter 155 Cal.App.3d 465, 479- 481 (1984)(affirming a percentage-based statutory fee award

that amounted to multiplier of 12); Sternwest Corp. v. Ash 183 Cal.App.3d 74, 75 (1986) (remanding the

case to the trial court “with directions to enhance the lodestar award by such factor (two, three, four or

otherwise)”). Sternwest was cited with approval by the Supreme Court, though not this language, in PLCM

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6 Some cases have awarded multipliers much higher than the multiplier requested here. See e.g.Glendora Comm. Redevelopment Agency v. Demeter, 155 Cal. App. 3d 465, 202 Cal. Rptr. 389 (1984)(multiplier of 12 times lodestar); In Re Rite-Aid Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001)(10.73multiplier) Weiss v. Mercedes-Benz of N. Amer., Inc., 899 F. Supp. 1297, 1995 U.S. Dist. LEXIS 14708(D.N.J. May 11, 1995) (multiplier of 9.3 times lodestar); In re RJR Nabisco, Inc. Sec. Litig., Fed. Sec. L.Rep. (CCH) P 96,984 (S.D.N.Y. 1992) (multiplier of 6 times lodestar); Roberts v. Texaco, 979 F. Supp.185 (S.D.N.Y. 1997)(5.50 multiplier).



Group, Inc. v. Drexler, 22 Cal.4th 1884, 1095 (2000). In Wershba, the Court of Appeal confirmed that

multipliers commonly “range from 2 to 4 or even higher” Id., at 255.6

1. The Novelty and Difficulty of the Questions Involved and the Skill Displayed inPresenting Them

The novelty and complexity of the issues presented in this case, as well as the skill displayed by

Class Counsel, warrant enhancement of the lodestar. Serrano, 20 Cal. 3d at 49. These factors are not

redundant of the number of hours spent or of the hourly rates charged. Rather, they reflect the fact that in

the legal marketplace, a difficult or complex case requires a higher fee than a more routine case. Roberts

v. Texaco, Inc., 979 F. Supp. 185, 197 (S.D.N.Y. 1997). Skill of an attorney alone can justify enhancing

the lodestar figure if the skills exhibited are beyond those that might be expected of attorneys of comparable

expertise or experience. Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1176 (1998). Greater skill

must be used by attorneys of comparable expertise and experience working on a contingent fee basis than

on an hourly basis because the contingent fee attorney must as a result of financial necessity minimize the

all or nothing hours expended in order to achieve the same result that an hourly attorney could achieve in

a reasonable period of time without the burden of working on an all or nothing basis.

Here, Class Counsel were confronted with complex factual and legal defenses that presented

significant hurdles to achieving a favorable settlement. Due to the novel and complex legal issues involved,

Class Counsel were required to demonstrate skills above and beyond those that would be expected of

persons of their stature and experience. Weeks, 63 Cal.App.4th at 1176. .

In fact, many previous overtime cases, especially those involving computer engineers and IT-related

personnel that had been litigated were either unsuccessful on certification or presented difficulty in

obtaining monetary relief. With respect to the risks of this case, one Court has held that these types of cases

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present individual issues of whether the exemption applied precluded certification. Dunbar v. Albertson's,

Inc., 141 Cal. App. 4th 1422, 1431-32 (2006) and Walsh v. Ikon Office Solutions, 148 Cal. App. 4th 1440

(2007). Moreover, courts in other jurisdictions have held that IT personnel are exempt under either the

administrative or the professional exemptions. In navigating these procedural hurdles that presented novel

and difficult questions, Class Counsel displayed skills beyond those that might be expected of attorneys of

comparable expertise or experience. Decl Gertler at ¶ 8(d).

In order to reach a settlement, Class Counsel had to convince Defendant and their counsel that Class

Counsel could overcome difficult obstacles in proving liability and achieving monetary recovery for the

Class Members, where others had failed to gain any relief for IT personnel in similar actions claiming

overtime wages. Class Counsel also had to convince the Court, Defendant and Defendant’s counsel that

the applicability of the administrative and professional exemptions to overtime wages could be litigated

on a class-wide basis and would not raise individual issues that would defeat class certification. In

navigating these very difficult issues, Class Counsel, negotiated through the hurdles and individual issues

that could have defeated class certification.

The quality of opposing counsel is also important in evaluating the quality of Class Counsel's work.

In re King Resources Co. Securities Litig , supra, 420 F.Supp. at 634; Arenson, supra, 372 F.Supp. at 1354.

In this action, Sun was represented by the prestigious and capable law firm of Wilson, Sonsini, Goodrich

& Rosati PC, led by the experienced counsel of Fred W. Alvarez, Ulrico S. Rosales, and Troy A. Valdez,

as well as several supporting attorneys. Decl. Gertler at ¶ 11(c). Defense counsels’ efforts on behalf of

their client was aggressive and unrelenting. Class Counsel was forced to oppose three (3) motions to strike

and amend the pleadings several times to obtain relief in this case. Importantly, Class Counsel was

successful in obtaining certification of the Class despite the opposition of Sun. The novelty of Class

Counsel’s approach and the difficulty of this case as well as the quality and tenacity of opposing counsel

all evidence the skill presented by Class Counsel in the successful prosecution of this action which supports

the nominal 1.07 multiplier requested.

2. The Extent to Which the Nature of the Litigation Precluded Other Employment andAdditional Factors Set Forth in Lealao

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Class Counsel, consisting of Chavez & Gertler, Blumenthal & Nordrehaug, Clark & Markham and

the United Employees Law Group, were responsible for the work on this case and are each small firms

consisting of less than ten attorneys. Decl. Gertler at ¶11(d); Decl. Blum. at ¶ 3; Haines Decl. at ¶3. These

firms had to forego well-compensated work on other hourly cases at the same rate or other contingent cases

so as to devote the necessary time and resources to this case. Id. Many of the tasks that these firm would

have performed and been compensated for in these other cases had to be delegated to other law firms. This

litigation thus precluded other more lucrative employment which also warrants enhancement of the lodestar.

In Lealao, the court articulated additional factors to those set forth in Serrano III that should be

considered in determining enhancement of a lodestar including whether any Class Members have objected

to the fee award sought, whether Class Counsel subordinated their own economic interests to that of the

class, and whether the settlement was prompt and should be rewarded accordingly. Lealao, supra, 82

Cal.App. 4th at 50-52.

As to whether any class member had objected to the fee award, the answer is that not one class

member has objected to the fee. This fact also warrants enhancement of the lodestar. Lealao, 82

Cal.App.4th at 51. Moreover, as set forth in the Declaration of Gertler, the very reason Class Counsel is

not seeking a higher multiplier of 3 to 4 is because Class Counsel subordinated their own economic interests

to that of the Class in order to facilitate the best settlement possible for the Class. Decl. Gertler at ¶ 11(e).

This factor also warrants further enhancement of the lodestar. Lealao, supra, 82 Cal.App.4th at 52.

Finally, the duration of the litigation in this case warrants enhancement of the lodestar. This case

was settled after class certification but before trial, which means that the fees and costs incurred are much

lower than the fees and costs would have been after a hotly contested trial. Decl. Gertler at ¶¶ 6,11. The

settlement obtained here could not have become a reality absent Class Counsel’s persistence and tenacity

from the inception of the case.

3. The Contingent Nature of the Fee Award

Counsel retained on a contingency fee basis, whether in private matters or in representative litigation

of this sort, is entitled to a premium beyond their standard, hourly, non-contingent fee schedule in order to

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compensate for both the risks and the delay in payment. The simple fact is that despite the most vigorous

and competent of efforts, success is never guaranteed. McKittrick v. Gardner, 378 F.2d 872, 875 (4th

Cir.1967) (“charges on the basis of a minimal hourly rate are surely inappropriate for a lawyer who has

performed creditably when payment of any fee is so uncertain.”). Indeed, if counsel is not adequately

compensated for the risks inherent in difficult class actions, competent attorneys will be discouraged from

prosecuting similar cases. Steiner v.BOC Financial Corp., 1980 U.S. Dist. LEXIS 14561 at *6- *7;

Fed.Sec.L.Rep.(CCH) ¶ 97,656 (S.D.N.Y. October 10, 1980).

Here, the contingent nature of the fee award, both from the point of view of eventual settlement and

the point of view of establishing eligibility for an award, also warrant enhancement of the lodestar. A

number of difficult issues, the adverse resolution of any one of which could have doomed the successful

prosecution of the action, were present here. Decl. Gertler at ¶10(e). Sun’s practice at issue here had been

in place for years before 2002. Sun’s numerous defenses to the case created substantial litigation problems

for the Class and Class Counsel to overcome.

For example, were the Plaintiff’s and Class Members’ claims barred from recovery by the

“administrative exemption” by analogy set forth in 29 C.F.R. Section 541.402 as was held in Koppinger v.

American Interiors, Inc., 295 F. Supp. 2d 797 (N.D. Ohio 2003)? Decl. Gertler at ¶ 10(e). Did Class

Members perform work that was “directly related to management or general business operations” within

the meaning of the administrative exemption and/or 29 C.F.R. § 541.201(a)(b)? Were IT-related positions

exempt under the professional exemption as was held in Bagwell v. Florida Broadband, 2005 WL 1962562,

(S.D. Fla. 2005)? Would Plaintiff be able to maintain class certification at trial and thereby recover on

behalf of Sun’s employees? Could the hours of overtime be accurately calculated for the Class Members?

All of these issues presented very substantial risks, any one of which could have resulted in the Class

receiving nothing. As a result, victory was far from certain and was obtained only through the extraordinary

efforts of Class Counsel.

Moreover, the risky nature of this action and of establishing eligibility for a fee award here is further

evidenced by the difficulty of other IT personnel and employee overtime class actions. Decl. Gertler. at ¶11.

Had this action not succeeded, Class Counsel would have received no compensation for the hundreds of

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7 Federal courts have long recognized that when assessing the attorneys’ fees award as apercentage of the fund, Courts look to the total value of benefits afforded to class members bythe settlement. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).

8 In re Remeron Direct Purchaser Antitrust Litigation, 2005 U.S. Dist. LEXIS 27013, 16 (D.N.J.2005) (attorneys “regularly contract for contingent fees between 30% and 40%”).



hours they expended and would have been out of pocket for all costs and expert fees advanced. Decl.

Gertler at ¶¶ 10, 11.

4. The Requested Award Compares Favorably to the Result Achieved

This settlement resulted in the creation of a common fund in the amount of $5,800,000 for the

benefit of the Class.7 The requested fee award of $1,740,000 represents 30% of this common fund, which

is well within the accepted range for attorneys’ fees in a common fund case. Therefore, the significant

recovery in this case further supports the requested fee award under the common federal practice of ‘cross-

checking’ the lodestar against the value of the class recovery.” Lealao, 82 Cal. App. 4th at 45.

The Ninth Circuit Court of Appeals held that a percentage of 30% is within the “usual range”

for attorneys fees awards. Vizcaino, supra, 290 F.3d 1043, 1047-49 (approving 28% attorneys fee award

as reflecting “the standard contingency fee for similar cases”).8 In In re Warner Communications Sec.

Lit, 618 F.Supp. 735, 749-50 (S.D. N.Y. 1985), Judge Keenan found that percentage fees in

common fund cases range from 20% to as high as 50%. Professor Newberg is in accord:

No general rule can be articulated on what is a reasonable percentage of a commonfund. Usually 50% of the fund is the upper limit on a reasonable fee award from acommon fund in order to assure that the fees do not consume a disproportionate partof the recovery obtained for the class, although somewhat larger percentages are notunprecedented.

Newberg, Newberg on Class Actions, 3rd Ed., § 14.03, at 14-13.

More recently, in Craft v. County of San Bernardino, 2008 U.S. Dist. LEXIS 27526, at *30 (C.D.

Cal. 2008), the District Court noted that a 1996 study by the Federal Judicial Center “found that most fee

awards in common fund class actions were between 20% and 40% of the gross monetary settlement” and

that another study by National Economic Research Associates “found that attorneys' fees in these class

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9 See also In re Activision Sec. Litigation, 723 F. Supp. 1373, 1377-78 (N.D. Cal. 1989) (surveyingsecurities cases nationwide and noting, “This court’s review of recent reported cases discloses thatnearly all common fund awards range around 30%. . . .”); In re Immune Response Secs. Litig., 497 F.Supp. 2d 1166, 1176 (S.D. Cal. 2007) (Northern District of California study found that “the range of thepercentage of the award devoted to attorneys' fees was 7.6% to 55.6% with a mean of 29.5%.”); Rauschv. Hartford Fin. Servs. Group, 2007 U.S. Dist. LEXIS 14740, at *2 (D. Ore 2007) (awarding 30%); In reHeritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, at *18, n. 12 (C.D. Cal. June 10, 2005) (takingnotice of more than 200 federal cases in which a fee of 30% of higher was awarded).



actions averaged approximately 32% of the recovery.” Id. Thus, the requested fee award in this case,

representing 30% of the settlement, is endorsed by the percentage cross-check because 30% falls at the low

end of the national average for awards in common fund settlements and is most certainly reasonable.9 The

result achieved by Class Counsel also supports the requested fee award.

For these reasons as set forth herein above, Plaintiffs respectfully request a fee award of $1,740,000

to Class Counsel, roughly equaling their lodestar with a only a nominal 1.07 multiplier enhancement.

IV. CLASS COUNSEL IS ALSO ENTITLED TO REIMBURSEMENT OF THE OUT OFPOCKET COSTS AND EXPENSES INCURRED.

Every member of the Settlement Class received notice that Class Counsel would seek reimbursement

of costs and expenses in the amount not to exceed $125,000. Not one member of the Class objected to the

reimbursement of costs and expenses incurred by Class Counsel in this action, and the amount sought is

lower than the amount set forth in the notice.

These out-of-pocket expenses, totaling $49,437.52 were all reasonable and necessary to the

prosecution of this action. See Decl. Gertler ¶13 and Exhibit #3, thereto; Blum Decl. ¶8 and Exhibit #2,

thereto; Markham Decl. at ¶7, Exhibit #2, thereto; and Haines Decl. at ¶8 and Exhibit #2, thereto. These

expenses include the amounts paid for expert fees, service of process, mediation costs, legal research

charges, court fees and delivery charges, all of which are costs normally billed to and paid by the client.

All of the out of pocket expenses are detailed and documented in the Decl. Gertler, Exhibit #3; in the Blum

Decl. ¶13, Exhibit #2; in the Markham Decl. at ¶8, Exhibit #2; and in the Haines Decl. at ¶8, Exhibit #2.

All of the expenses incurred by Class Counsel and documented in the Gertler, Blumenthal, Markham and

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Haines Declarations were reasonably necessary to the litigation. See Decl. Gertler, at ¶13; Blum Decl. at

¶8; Markham Decl. at ¶7; Haines Decl. at ¶8.

V. THE CLASS REPRESENTATIVE SHOULD RECEIVE THE REQUESTEDSERVICE AWARD

Plaintiffs respectfully submit that for their service as the sole Class Representative, Plaintiff Lisa

Connell should be awarded $25,000. See Decl. Gertler ¶13. Sun has agreed to this service award to the

Plaintiff. The payment of service awards to successful class representatives is appropriate and the amount

of $25,000 is well within the currently accepted range. See e.g. Van Vranken v. Atlantic Richfield Co., 901

F.Supp. 294, 299-300 (N.D. Cal. 1995) (incentive award of $50,000); In re Dun & Bradstreet Credit Servs.

Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) (two incentive awards of $55,000, and three incentive

awards of $ 35,000); Bogosian v. Gulf Oil Corp., 621 F. Supp. 27 (E.D. Pa. 1985) (incentive awards of

$20,000 to each of two plaintiffs); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998); Enter. Energy

Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) ($50,000 to each class

representative). Moreover, at the preliminary approval hearing, Judge Sabraw requested additional

information regarding the role of Plaintiff Connell in this litigation, which was provided in the Supplemental

Declaration of Jonathan Gertler. After receiving and reviewing this additional information, Judge Sabraw

approved the proposed service award of $25,000 to Plaintiff Connell.

As the sole Representative of the Class, Plaintiff performed her duty to the Class admirably and

without exception. Plaintiff subjected herself to the very real possibility of an adverse judgment and a

corresponding payment of costs to Sun. Finally, Plaintiff worked with Class Counsel, responded thoroughly

to Sun’s discovery requests, appeared for deposition and participated in mediation. Without her

participation and work on behalf of the absent class members, there would be no case and no recovery for

the class. See Decl. Gertler ¶13.

As a result, Class Counsel respectfully requests that this Court order payment of costs in the amount

of $49,437.52, and payment of a class representative incentive award of $25,000 to Plaintiff Connell, in

accordance with the Settlement Agreement. Decl. Gertler,¶13.

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VI. CONCLUSION

For the foregoing reasons, Class Counsel respectfully requests the Court grant Class Counsel's

request for a cost award of $49,437.52, Class Representative award to Plaintiff of $25,000, and a fee award

of $1,740,000, based upon the lodestar/multiplier approach and the Settlement Agreement with a reasonable

cross-check of 30% of the common fund.

Dated: October ___, 2008 CHAVEZ & GERTLER, LLP

By: ___________________________________Jonathan Gertler, Esq.Attorneys for Plaintiff and the Class

CLARK & MARKHAMR. Craig Clark (State Bar #129219) David R. Markham (State Bar #071814)401 West A Street, Ste. 2200San Diego CA 92101Telephone: (619) 239-1321Facsimile: (619) 239-5888

BLUMENTHAL & NORDREHAUGNorman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975)2255 Calle ClaraLa Jolla, California 92037 (858)551-1223Fax: (858) 551-1232

UNITED EMPLOYEES LAW GROUPWalter Haines (State Bar #71705)65 Pine Ave, #312Long Beach, CA 90802Telephone: (562) 256-1047Facsimile: (562) 256-1006

Documents

Memorandum - Fees and Costs - Final