Robert A. Curtis, SBN 203870 FOLEY BEZEK BEHLE & CURTIS ... · (d) Rolnik/Godoy v. AT&T Wireless, New Jersey Superior Court, Essex County, Case No. L-180-04, which resulted in benefits

DECLARATION OF ROBERT A. CURTIS

CASE NO. 5:10-CV-05193-VKD

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Robert A. Curtis, SBN [email protected] FOLEY BEZEK BEHLE & CURTIS, LLP 15 West Carrillo Street Santa Barbara, California 93101 Telephone: (805) 962-9495 Facsimile: (805) 962-0722 William M. Aron, SBN 234408 [email protected] LAW OFFICE OF WILLIAM M. ARON 15 West Carrillo Street Santa Barbara, California 93101 Telephone: (805) 618-1768 Facsimile: (805) 618-1580 Justin P. Karczag, SBN 223764 [email protected] KARCZAG AND ASSOCIATES PC 1100 Wilshire Boulevard, Suite 3307 Los Angeles, California 90017 Telephone: (213) 559-7395 Facsimile: (213) 559-7396

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

HAYLEY HICKCOX-HUFFMAN, on behalf of herself and all others similarly situated,

Plaintiff,

v.

US AIRWAYS, INC., US AIRWAYS GROUP, INC., and DOES 1 through 10, inclusive,

Defendants.

Case No. 5:10-cv-05193-VKD

DECLARATION OF ROBERT A. CURTIS IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEY FEES AND REIMBURSEMENT OF EXPENSES TO CLASS COUNSEL, AND INCENTIVE AWARDS FOR CLASS REPRESENTATIVES Date: April 1, 2019 Time: 10:00 a.m. Dept: Courtroom 2, Fifth Floor

Case 5:10-cv-05193-VKD Document 109-1 Filed 02/07/19 Page 1 of 30

- 2 - DECLARATION OF ROBERT A. CURTIS


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DECLARATION OF ROBERT A. CURTIS

I, ROBERT A. CURTIS, do hereby state and declare:

1. I am a Partner in the law firm of Foley Bezek Behle & Curtis, LLP

(“FBB&C”), one of the law firms representing Plaintiff in this action. I submit this

declaration in support of Plaintiff’s Motion for Preliminary Approval.

2. I am a member in good standing of the California State Bar, and I have

never been the subject of any type of disciplinary proceeding. I am admitted to

practice before all the state courts in California, the United States District Courts

for the Central, Northern, Eastern, and Southern Districts of California, the Western

District of Michigan, the District of Colorado and the Ninth Circuit Court of

Appeals. I have personal knowledge of the facts set forth in this Declaration, and

for those matters set forth on information and belief, I believe those to be true. If

called upon to testify, I could and would testify to the same in a court of law.

My Experience in Class Actions and Complex Litigation

3. I graduated from the University of California at Los Angeles with a

B.S. in 1996 and received my law degree from Pepperdine University School of

Law in 1999. Upon graduating from law school, I was hired full time at Foley

Bezek & Komoroske, LLP (the predecessor name of my current firm) and became a

partner in January 2003. I was admitted to the California Bar in 1999. Over the

past eighteen years, the primary focus of my practice has been complex business

litigation and class actions. I have tried numerous cases to verdict in many forums

including the Superior Court of California, the Superior Court of Arizona and in the

United States District Court. Several years ago, I was the lead trial attorney for the

plaintiff and obtained a $38.9 million jury verdict in a 7-week lender liability trial

in Los Angeles Superior Court against East West Bank. The East West Bank

verdict was the 12th largest verdict in California and the 54th largest verdict in the

entire United States for 2014.

4. I, in conjunction with other partners at the firm, have litigated cases

that have resulted in over $415 million in settlements and verdicts against some of




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the largest companies and biggest law firms in the country. During the past fifteen

years, my partners and I collectively have been involved in the representation of

plaintiffs in more than 25 different class action cases and have been certified to act

as Class Counsel in the Superior Court of the State of California, in the Superior

Court of the State of New Jersey and in the federal district courts of various

jurisdictions throughout the country. During that time, I have had significant

involvement with and have served as lead or co-lead counsel in a number of major

class actions which were settled in a manner that resulted in substantial, material

benefits for various classes of wronged individuals. Included below are some of the

larger settlements:

(a) Demmick v. Cellco Partnership, District of New Jersey, Case

No. 06-2163 (JLL), a $64.2 million settlement;

(b) Lozano v. AT&T Wireless Services, Inc., et al., U.S. District

Court, Central District of California, Case No. CV02-90-AHS(AJWx), which

resulted in a potential recovery for the class of more than $42 million in cash

benefits;

(c) Stern v. AT&T Mobility Corporation, et al., U.S. District Court,

Central District of California, Case No. CV05-08842-CAS(Ctx), which resulted in

a potential recovery for the class of more than $38 million in cash benefits;

(d) Rolnik/Godoy v. AT&T Wireless, New Jersey Superior Court,

Essex County, Case No. L-180-04, which resulted in benefits to the class of more

than $49 million;

(e) Amiri v. My Pillow, California Superior Court, San Bernardino

County, Case No. CIVDS 1606479, which resulted in a potential recovery for the

classes of more than $30 million in cash benefits;

(f) Roark v. GTE California, California Superior Court, Santa

Barbara County, Case No. 01035862, a $20 million settlement; and

(g) In Re: Structured Settlement Litigation, Los Angeles Superior

Court, Master Case No. BC244111, co-lead counsel in case which resulted in a




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settlement of over $100 million.

5. Other class action litigation matters on which I worked extensively on

and which were certified as class actions are: Coldiron v. Bank of America, Los

Angeles Superior Court, Case No. BC 121154; Kirksey v. Chicago Title Ins. Co.,

Los Angeles Superior Court, Case No. BC. 106189; Young v. Western Cities

Mortgage Corp., Los Angeles Superior Court, Case No. BC 121782; Baron v.

Great Western, Los Angeles Superior Court, Case No. BC121153; Blinkinsop v.

Vegas Grand, U.S. District Court for the District of Nevada, Case No.

CV-S-05-0714-BES-RJJ; Scott v. Vegas Icon, U.S. District Court for the District of

Nevada, Case No. 2:06cv00082; Fletcher v. Brown & Brown, et al., Santa Barbara

Superior Court Case No. 01131631; Vinson v. Idearc Media, Riverside Superior

Court Case No. INC055768, Internal Revenue Service §1031 Tax Deferred

Exchange Litigation, District Court of Nevada Case No. 2:07cv1394; Denison v.

The Salvation Army, Superior Court of California Case No. BC368827; Behar

International Counsel v. T-Mobile, California Superior Court, San Diego County,

Case No. GIC 820372, and Kearney v. Equilon Enterprises, LLC, District Court of

Oregon, Case No. 3:14cv00254-HZ.

6. Also, in the United States District Court for the District of New

Jersey, my firm was appointed by the Court as Lead Class Counsel in the Multi-

District Litigation (MDL) matter entitled In Re: Verizon Wireless Data Charges

Litigation, Case No. 3:09cv04592-FLW-TJB. The settlement of that MDL

proceeding encompassed thirty-one cases filed in multiple jurisdictions throughout

the country that were transferred to the District of New Jersey for coordinated

pretrial proceedings. The case settled and over $55 million in benefits were

provided to the class. The MDL at its core was a consumer class action for

violations of federal and state consumer protection laws. In approving the

settlement, Judge Wolfson specifically noted “it was the vigorous efforts of the

Foley firm that led to the proposed settlement.” Judge Wolfson stated that “lead

counsel negotiated a sizeable settlement within a reasonable amount of time since




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the start of the litigation. Because of those timely efforts, the class will benefit

more,” and that FBB&C was “skilled and experienced in litigating these types of

class action cases.” Transcript from Final Approval Hearing in In re: Verizon

Data Charges Litigation, Case No. 10-1749 (SLW) dated March 1, 2012.

7. In addition to working on the plaintiffs’ side of class action litigation,

my firm also has served as lead counsel for the defense in many class actions,

including: (a) Doe v. Darkside Productions, Inc., San Francisco Superior Court,

Case No. CGC-05-439667; (b) Bauer v. Darkside Productions, Inc., San Francisco

Superior Court, Case No. CGC-05-443247; (c) In re: Weekend Warrior Trailer

Cases, Orange County Superior Court, Case No. JCCP 4455; (d) Anderson v. EFX

Performance, Inc., Orange County Superior Court, Case No 30-2011-00442192-

CU-MT-CXC; and (e) Lopez v. Islay Investments, Santa Barbara Superior Court,

Case No. 15CV02255.

Summary of Our Efforts in this Matter

8. During the course of this litigation, I conducted pretrial discovery

including inspection of the US Airways Terms of Transportation and related

policies. I reviewed over 1850 documents and propounded interrogatories. I also

engaged an expert, Charles Clapsaddle, who assisted me in analysis of data

regarding checked baggage. Together, Mr. Clapsaddle and I reviewed massive

amounts of electronic data including over 1,100,000 electronic records of lost bags.

Based on this data, we built various damage models. Class Counsel spent

considerable time developing their theories of liability and damages in order to

credibly address class certification. Class Counsel also expended substantial effort

in obtaining the discovery necessary to advance these legal theories.

9. Ultimately, the parties agreed to mediate this dispute and participated

in two, separate full-day mediation sessions with Jill Sperber, Esq. of Judicate

West. Ms. Sperber supervised numerous contentious back and forth negotiations

and finally resolved the matter at almost 10:00 p.m. on the second full day of

mediation. The mediation was at all times arms-length.




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10. During and before the mediation Plaintiff’s counsel weighed the

strengths and weaknesses of the case, examined all of the issues including the risks

and expenses of further litigation, our chances at class certification, potential

difficulties at proving liability, and at prevailing on a damage model that properly

fit the circumstances of this case. We also considered the time value of the present

settlement, and the refund that will be provided to members of the Class in agreeing

to the proposed settlement. In addition, both parties’ experts prepared and

exchanged several damage models during the mediation. Class Counsel were able

to present their case theories in a persuasive manner to the mediator in such a way

as to produce a very advantageous result for the Settlement Classes.

11. The amount of attorneys’ fees was neither discussed, negotiated nor

agreed upon by the parties as part of the Settlement, and therefore had no impact on

the negotiation of the terms of the Settlement.

12. The results achieved for the class are excellent and the risks faced by

Class Counsel in this action were substantial. Over the last 10 years, several similar

lawsuits were filed against other airlines, by other plaintiff counsel, and all of those

lawsuits have been dismissed (as this case initially was) on Federal Preemption

grounds. But instead of packing up the tents, Plaintiff’s counsel took this fight to

the Ninth Circuit and won a stunning reversal. In my opinion, that reversal and the

Ninth Circuit opinion drove the Defendant to mediation.

13. Over a period of time spanning over eight years, Class Counsel

worked aggressively in order to position this case so that it could be resolved

favorably for the members of the Settlement Classes by: (a) serving formal

discovery consisting of interrogatories and requests for production of documents;

(b) reviewing and analyzing thousands of documents that were produced by

Defendant; (c) conducting legal research concerning the claims filed in this action

and the defenses raised thereto; (d) filing and opposing numerous motions; (e)

hiring expert to analyze millions of lines of data and prepare complex damage

models; and (f) participating in two lengthy mediation session in order to reach




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settlement on behalf of the Settlement Classes.

Lodestar Calculations and Expenses

14. Since the inception of this matter through January 31, 2019, Foley

Bezek Behle & Curtis, LLP has devoted 1066.65 professional hours to the

prosecution of this case, which results in a lodestar of $541,970 with respect to this

litigation. This lodestar total does not include the time spent preparing this Motion

or its supporting declarations nor does it include any future time which we be spent

drafting the Motion for Final Approval and preparing for and attending the Final

Approval hearing. Based upon my experience with other class action matters, I

believe that the time expended by my firm in connection this matter, when

compared to the result achieved for the Class, is reasonable in amount and was

necessary to ensure the successful prosecution of this action on behalf of the

Settlement Class.

15. The following is a summary listing each lawyer and legal assistant for

which Foley Bezek Behle & Curtis, LLP is seeking compensation for legal services,

the hours each individual expended, and the hourly rate at which compensation is

sought:

Name Position Hours Hourly

Rate

Total

Thomas G. Foley Partner 12.3 $695 $8,548.50

Peter J. Bezek Managing Partner 3.6 $695 $2,502.00

Robert Curtis Partner 292.4 $695 $203,218.00Justin Karczag (through Feb. 2018)

Partner 269.2 $525 $141,330.00

Roger Behle Partner 61.4 $525 $32,235.00

Kevin Gamarnik Associate/Junior Partner

60.05 $450 $27,022.50

Muhammed Hussain Associate 17.9 $350 $6,265.00

Aaron Arndt Associate 18.8 $350 $6,580.00

Stephanie Hanning Associate 260.7 $350 $91,245.00




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Ashley Hussey Associate 48.1 $350 $16,835.00

Amanda Naples Associate 10.3 $350 $3,605.00

Marisa Poulos Associate 1.7 $350 $595.00

Rachel Evans Paralegal 3.4 $195 $663.00

Chantel Walker Paralegal 2.9 $195 $565.50

Colleen Connors Paralegal 3.5 $195 $682.50

Wendy Kosche Paralegal 0.4 $195 $78.00

TOTAL 1,066.65 $541,970

16. The rates listed above for the Partners are the actual rates that my firm

charges for litigation matters that my firm handles on an hourly basis. The rates

listed for associates above are lower than the actual rates that my firm charges for

litigation matters that my firm handles on an hourly basis. The figures and amounts

reflected above do not include: (a) any multiplier or other factor to account for the

risks involved in the case or the wholly contingent nature of my firm’s

representation of the Class; or (b) any adjustment for the complexity of the

litigation, the level of the opposition encountered, the preclusion of other

employment, or other factors that might justify a higher level of compensation for

the work performed. Indeed, Judge Wolfson in the United States District Court,

District of New Jersey, in 2011 approved rates slightly lower than these stating

“Counsel's rates vary between attorneys and paralegals depending on the position,

experience level, and locality of the particular attorney. I have reviewed the

attorneys' declarations and I am satisfied that the hourly rate charged for each of the

attorneys and his or her staff is based upon a reasonable hourly billing rate for such

services in the given geographical area, the nature of the services provided, and the

experience of the lawyer.” Transcript from Final Approval Hearing in In re:

Verizon Data Charges Litigation, Case No. 10-1749 (SLW) dated March 1, 2012.

17. FBB&C maintains narrative time records for each individual for whom




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it seeks compensation. The description of services is a compilation of the billing

entries that are inputted by the attorneys and professional staff members of my firm

into a computerized billing system maintained by my firm. These time records are

voluminous and highly detailed and are available for submission to the Court upon

request. However, because many of the time records may reflect information that is

protected from disclosure by the attorney-client privilege and/or the attorney work-

product doctrine, it would be necessary for the time records to be redacted or

submitted for in camera inspection by the Court only. I am the partner at my firm

who was charged with overseeing the firm’s work on this matter. I personally

supervised the work that was done by my other partners, associate attorneys and

professional staff members at my firm. I coordinated and delegated the work that

was done by my firm in order to ensure that it was accomplished timely and

efficiently without duplication of effort. In those instances in which multiple

attorneys or staff members were involved on a project, it was due to the size and

complexity of the project and/or time constraints imposed for the completion of the

project.

18. FBB&C has expended significant time on this matter without any

compensation for over eight years and has advanced and carried the expenses

necessary to pursue this action to its successful conclusion. Plainly, in the absence

of our time commitment to this case, my firm could have devoted its time and effort

to other clients or class action cases.

19. FBB&C has expended a total of $40,300.53 in unreimbursed costs and

expenses that were necessarily incurred in connection with the prosecution of this

matter. These expenses were incurred solely in connection with this action and are

reflected on FBB&C’s books and records maintained in the ordinary course of

business. These books and records are prepared from invoices, receipts, expense

vouchers, check records and other records, and are an accurate record of the

expenses incurred in this case and are available for submission upon request. These

expenses are detailed as follows:




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Costs

Lexis/ Pacer $1,429.98

In house copies $752.93

Outside copy service $458.67

Postage $29.57

Travel $3,532.35

Meals $490.99

Filing Fees $805.00

Courtcall $90.00

Mediation $9,577.50

Attorney Service $1,323.70

Overnight delivery $220.49

Experts $21,589.35

Total $40,300.53

20. All of the expenses for which my firm seeks reimbursement were

reasonably and necessarily incurred in connection with the prosecution and

resolution of this action.

Notice and Lack of Objectors

21. The Postcard Notice was mailed to 348,856 class members. A true

and correct copy of the Postcard Notice is attached hereto as Exhibit 1 and a report

from the Court-Appointed Claims Administrator establishing the number of

postcards mailed and the number objection received to date is attached hereto as

Exhibit 2.

22. The Postcard Notice gave a short summary of the fees and costs to be

requested which read, “The settlement provides a $9.85 million Settlement Fund

that will be used to pay ….. and (iv) Attorneys’ Fees not to exceed $2,955,000 and

costs and expenses not to exceed $50,000.” It also informed class members that




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they had the right to object to the attorneys’ fees requested and states “Class

Counsel’s motion Attorneys’ Fees and Expenses and the Incentive Award will be

available on the Settlement Website after they are filed and before the hearing.”

(Ibid.)

23. The Long Form Notice that was disseminated to class members and

that is posted on the Internet: (a) notifies class members of the maximum amounts

of the attorneys’ fees, expenses and incentive award that will be sought; and (b)

notifies class members that the fee application papers will be filed prior to the

deadline to opt-out or object. Accordingly, class members have been provided

with fair notice of the attorneys’ fees, expenses and incentive award that are being

sought and the basis for the amounts requested, as well as their right to object and

instructions on how to object if they choose to do so.

24. To date, no objections have been received to the attorneys’ fees, costs

or incentive award.

Class Representative Participation

25. In fulfilling her duties as the class representative in this action,

Plaintiff Hickcox-Huffman devoted significant amounts of her personal time to,

inter alia: reviewing the complaint before it was filed; gathering documents to

support her claims; responding to written discovery requests propounded by

Defendant and gathered documents to produce to Defendants; reviewing legal

documents (including the Settlement Agreement) provided to them by Class

Counsel; and conferring with Class Counsel regarding various litigation-related

issues.

I declare under penalty of perjury, under the laws of the State of California

and the United States of America, that the foregoing is true and correct. Executed

this 7th day of February, 2019 in Santa Barbara, California.

__/s/ Robert A. Curtis

Robert A. Curtis


EXHIBIT 1

EXHIBIT 1


LEGAL NOTICE

If Between November 16, 2005 And April 29, 2010 You Checked A Bag

On A Domestic Flight With US Airways, Your Bag Was Lost Or

Delayed, And Between November 16, 2005 And April 29, 2010 You

Reported To US Airways That Your Bag Was Lost Or Delayed And

Did Not Receive A Refund Of The Checked Baggage Fee For The Lost Or Delayed Bag, You Could Receive

A Cash Payment From A Class Action Settlement.

Para obtener una notificación en español, por favor llame o visite nuestra web.

www.checkedbaggagesettlement.com

[TOLL-FREE NUMBER]DO NOT CONTACT THE COURT or US Airways or its affiliates (including

American Airlines, Inc.) concerning this notice or this lawsuit.

UAH

Hickcox-Huffman v. US Airways, Inc.Settlement AdministratorP.O. Box XXXXCity, ST XXXXX-XXXX

«Barcode»Postal Service: Please do not mark barcode

Control#: AOA-«ClaimID»-«MailRec» «First1» «Last1» «CO» «Addr2»«Addr1»«City», «St» «Zip»

Ex. 1, Page 1 of 2


A settlement has been proposed in a class action lawsuit alleging that US Airways failed to deliver checked baggage on domestic flights within a particular timeframe. US Airways denies the allegations. The Court did not decide who is right. WHO IS INCLUDED? All passengers of US Airways who traveled on a domestic flight between November 16, 2005 and April 29, 2010 (the “Class Period”), checked baggage that was lost or delayed, reported the lost or delayed checked baggage to US Airways during the Class Period, and whose checked baggage fee was not previously refunded (“Class Members”).THE PROPOSED SETTLEMENT BENEFITS. The settlement provides a $9.85 million Settlement Fund that will be used to pay: (i) on a pro rata basis, money to Class Members whose current address can be determined based on US Airways’ records and other sources, and who either (a) appear in US Airways’ records as having, during the Class Period, checked a bag on a domestic flight with US Airways that was lost or delayed, reported the lost or delayed checked baggage to US Airways, and not received a refund of the checked baggage fee for the lost or delayed bag or (b) submits a valid Claim Form by [DATE] (ii) Settlement Administration Expenses, (iii) a $10,000 Incentive Award to the Class Representative, and (iv) Attorneys’ Fees not to exceed $2,955,000 and costs and expenses not to exceed $50,000.WHO REPRESENTS YOU? The Court appointed the law firms Foley Bezek Behle & Curtis LLP, Karczag and Associates PC, and the Law Office of William M. Aron to represent you as “Class Counsel.”YOUR OPTIONS. If you are a Class Member, you may (1) exclude yourself from the class; or (2) do nothing and be bound by the terms of the settlement; (3) send in a Claim Form; (4) object to the settlement; and/or (5) go to a hearing.If you exclude yourself, you cannot receive a cash payment from this settlement, but you can sue, or continue to sue, US Airways regarding the claims in this case. If you do not want to be legally bound by the settlement, you must exclude yourself online or by mail postmarked by [DATE]. If you do not exclude yourself from the Class, you may submit a Claim Form and/or object to the settlement by [DATE].THE FAIRNESS HEARING. The Court will hold a hearing in this case on [DATE] at [TIME] in Courtroom 2 of the San Jose Courthouse, 280 South 1st Street, San Jose, California 95113. At this hearing, the Court will consider whether to approve the settlement, Class Counsel’s application for Attorneys’ Fees and Expenses, and the Incentive Award. You may appear at the hearing, but you do not have to. You do not need to retain an attorney to appear at the hearing, but you have the right to do so. Class Counsel’s motion for Attorneys’ Fees and Expenses and the Incentive Award will be available on the Settlement Website after they are filed and before the hearing. WANT MORE INFORMATION? Full details, including the Claim Form, detailed notice and settlement agreement, are available at www.checkedbaggagesettlement.com, by calling [NUMBER], or by writing to [ADDRESS].

Ex. 1, Page 2 of 2


EXHIBIT 2

EXHIBIT 2


2/4/2019

Weekly Case Status Report 3301 Kerner Blvd

San Rafael, CA 94901(415) 461-0410

SR. PROJECT MANAGER Jay Geraci 2/21/2019Direct Telephone: 415-798-5919 2/21/2019Email: [email protected] 2/21/2019

4/1/2019PROJECT MANAGER Jeanne ChernilaDirect Telephone: 415-798-5969Email: [email protected]

PLAINTIFF(S) COUNSEL DEFENSE COUNSELRobert A.Curtis [email protected] Matt Bahleda [email protected] BEZEK BEHLE & CURTIS, LLP O'Melveny & Myers LLP

404,14710

0.0025%2,124

0.5256%

DateNoticesMailed

Notices E-Mailed RUM1 RUM Remailed FOE2 FOE Remailed

TimelyOpt-OutsReceived

Late Opt-OutsReceived

ObjectionsReceived

* TotalTimelyClaims

ReceivedLate Claims

Received11/23/2018 342,792 16,901 0 0 0 0 0 0 0 0 012/3/2018 0 0 0 0 0 0 1 0 0 476 012/10/2018 6,054 0 11,315 3,094 1,056 1,056 2 0 0 416 012/17/2018 0 0 53,821 0 1,025 36 3 0 0 207 012/24/2018 0 0 4,498 4,186 0 0 2 0 0 142 012/31/2018 0 0 9,982 10,957 203 1,100 0 0 0 112 01/7/2019 0 0 2,644 2,862 23 88 0 0 0 233 01/14/2019 0 0 719 0 0 0 0 0 0 260 01/22/2019 0 0 1,997 686 0 20 1 0 0 104 01/28/2019 0 0 2,424 0 15 0 0 0 0 89 02/4/2019 0 0 255 0 3 0 1 0 0 85 0

Total: 348,846 16,901 87,655 21,785 2,325 2,300 10 0 0 2,124 0

NOTES 1RUM is an acronym for Returned Undeliverable Mail, indicating mail returned by the United States Postal Service (USPS).2FOE is an acronym for Forward Order Expired, indicating mail returned by the United States Postal Service (USPS) with a forwarding address.

The numbers and statistics on this report are for your reference only and will change throughout the administration process. Final numbers and statistics shall be provided by the Senior Project Manager once response deadlines have passed and all responses have been properly validated.

Hickcox-Huffman v. USAirways Class StatisticsTotal class membersTotal opt-outs:% opt-outs:Total claim forms:

Claims Filing Deadline:Objection Deadline:

Opt-out Deadline:Final Approval Hearing:

% claim forms:

Notification Mailings Correspondence Claim Forms

Ex. 2, Page 1 of 1


mailto:[email protected]



EXHIBIT 3

EXHIBIT 3


Case 2:06-cv-02163-JLL-MF Document 158-5 Fed 01123/15 Page 1 of 13 Page(D: 3357

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

RALPH DEMMICK, on behalf of Civ. Act. No. 06-2 163 (JLL)himself and all others similarlysituated; DONALD BARTH, on behalfof himself and all others similarlysituated,

Plaintiffs,V.

CELLCO PARTNERSHIP, a DelawareGeneral Partnership doing business asVerizon Wireless; and DOES 1 through10,

Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERAWARDING ATTORNEYS’ FEES TO CLASS COUNSEL, REIMBURSINGEXPENSES INCURRED BY CLASS COUNSEL AND APPROVINGPAYMENT OF SETTLEMENT ADMINISTRATOR’S FEES ANDEXPENSES

Case 2:06-cv-02163-JLL-MF Document 183 Filed 05/01/15 Page 1 of 13 PageID: 3678

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The Court having considered the papers filed in support of Plaintiffs’

Motion for Order: (1) Awarding Attorneys’ Fees to Class Counsel; (2)

Reimbursing Expenses Incurred by Class Counsel; and (3) Approving Payment of

the Settlement Administrator’s Fees and Expenses (“Attorneys’ Fees, Litigation

Expenses and Settlement Administration Costs Motion”), and having considered

any and all filed objections to the Attorneys’ Fees, Litigation Expenses and

Settlement Administration Costs Motion, hereby makes the following findings of

fact and conclusions of law:

FINDINGS OF FACT1

Pursuant to Fed.R. Civ.P. 23(h)(3), 52(a), and 54(d)(2)(C) the Court makes

the following findings of fact:

(1) The parties negotiated and agreed upon a common fund settlement in

this action (“Settlement”) valued at $64.2 million and comprised of $36,700,000 in

cash and $27,500,000 in calling units.

(2) The parties agreed on the terms of the Settlement after multiple

mediation sessions conducted by the Hon. Layn Phillips, a former Judge of the

United States District Court for the Western District of Oklahoma.

(3) There was no discussion of attorneys’ fees during these mediation

sessions, and there is no basis to believe that the amount or terms of the Settlementwere impacted by considerations related to attorneys’ fees.

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(4) Verizon Wireless takes no position on the Attorneys’ Fees, Litigation

Expenses and Settlement Administration Costs Motion submitted by Class

Counsel.

(5) The aggregate lodestar of Class Counsel and FCC Counsel in the

amount of $4,848,134 is reasonable and justified based on, among other things: (a)

the market competitive hourly rates charged by Plaintiffs’ counsel for the work that

was performed; (b) the significant time and effort that was expended by Plaintiffs’counsel (more than 8540 hours); and (c) the duration of the case (more than nine

years).

(6) The total expenses incurred by Plaintiffs’ counsel in the amount of

$352,883 were reasonably and necessarily incurred in connection with the

prosecution and resolution of this action.

(7) The fees and expenses of the court-appointed SettlementAdministrator, Kurtzman Carson Consultants (“KCC”), of up to $2,057,647 werereasonable and necessary in order to disseminate class notice and performsettlement administration services.

(8) Class Counsel’s request for an award of $19,260,000 in attorneys’fees represents 30% of the $64.2 million value of the Settlement.

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(9) Class Counsel’s request for an award of $19,260,000 in attorneys’fees equates to a multiplier of 3.97 on the aggregate lodestar of Class Counsel andFCC Counsel through January 23, 2015 in the amount of $4,848,134.

(10) Therefore, whether analyzed as a percentage-of-the-recovery or on alodestar/multiplier basis, the attorneys’ fees requested by Class Counsel in theamount of $19,260,000 are fair and reasonable.

(11) The Class Notice that was disseminated to class members and isposted on the website www.VerizonFSPciassaction.com notified class members ofthe amounts of attorneys’ fees, litigation expenses and incentive awards that wouldbe sought.

(12) The Attorneys’ Fees, Litigation Expenses and SettlementAdministration Costs Motion was filed on January 23, 2015 and posted on thewebsite www.VerizonFSPclassaction.com on January 26, 2013, thereby providingSettlement Class Members with a full month until February 27, 2015 in which tofile any objection to the Attorneys’ Fees, Litigation Expenses and SettlementAdministration Costs Motion.

(13) The notice portion of the Attorneys’ Fees, Litigation Expenses andSettlement Administration Costs Motion prominently notifies all Settlement ClassMembers in CAPITAL LETTERS of their right to oppose or object to theAttorneys’ Fees, Litigation Expenses and Settlement Administration Costs Motion

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in whole or in part, directs Settlement Class Members to Section 16 of the ClassNotice posted on the website for instructions on how to object, and notifiesSettlement Class Members of the February 27, 2015 deadline to oppose or objectto the Attorneys’ Fees, Litigation Expenses and Settlement Administration CostsMotion.

CONCLUSIONS OF LAW

Pursuant to Fed.R. Civ.P. 23(h)(3), 52(a) and 54(d)(2)(C), the Court makesthe following conclusions of law:

(1) Courts must thoroughly analyze an application for attorneys’ fees in aclass action settlement. In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir.2005).

(2) The Court must undertake this thorough analysis even where theparties have agreed upon or where there is no objection to the requested attorneys’fees. Yong Soon Oh v. AT&T Corp., 225 F.R.D. 142, 146 (D.N.J. 2004); In re PetFood Prods. Liab. Litig., 629 F.3d 333, 358 (3d Cir. 2010) (quoting from Fed. R.Civ. P. 23(h)(4) advisory committee note (“Whether or not there are formalobjections, the court must determine whether a fee award is justified. .

.

(3) Tn a federal class action settlement, federal law governs the decisionconcerning fees and costs. In re Diet Drugs, 582 F.3d 524, 540 (3d Cir. 2009);McGee v. Cont’l Tire N Am., Inc., 2009 WL 539893, at *13 (D.N.J. Mar. 4, 2009).

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(4) Under federal class action case law, courts in the Third Circuit assessattorneys’ fees in class actions in one of two ways: the “percentage-of-recovery”method or the “lodestar-multiplier” method. See In re Rite Aid, supra, 396 F.3d at300. “The former applies a certain percentage to the [settlement] fund. The lattermultiplies the number of hours class counsel worked on a case by a reasonablehourly billing rate for such services.” In re Diet Drugs, supra, 582 F.3d at 540(internal quotation marks and citations omitted). The ultimate choice ofmethodology rests within the sound discretion of the Court. In re General MotorsCorp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 821 (3d Cir.1995).

(5) Courts in the Third Circuit typically apply the percentage-of-recoverymethod of assessing attorneys’ fees in cases where there is an established commonfund. See, e.g., In re Rite Aid, supra, 396 F.3d at 300 (“the percentage-of-recoverymethod is generally favored in common fund cases because it allows courts toaward fees from the fund in a manner that rewards counsel for success andpenalizes it for failure.”). See also In re AT&T Corp. Sec. Litig., 455 F.3d 160,164 (3d Cir. 2006); In re Cendant Corp. PRIDES Litigation, 243 F.3d 722, 732 (3dCir. 2001); In re Electrical Carbon Products Anti-Trust Litigation, 447 F.Supp.2d389, 405 (D.N.J. 2006).

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(6) The percentage-of-recovery method “awards counsel a variablepercentage of the amount recovered for the class.” In re Gen. Motors, supra, 55F.3d at 819 n. 38. The Third Circuit has noted with approval percentage-of-recovery attorneys’ fees awards which range from as little as 19% of the recoveryto as much as 45% of the recovery. Id. at 822 (identifying range between 19% and45/). Many district courts in this Circuit have chosen to award attorneys’ fees atthe 33.330/0 level — which is the approximate median of the range recognized asacceptable by the Third Circuit. See, e.g., In re Merck & Co., inc. Vytorin ERISALitig., 2010 WL 547613, at *9 (D.N.J. Feb. 9, 2010) (approving fee of 33 1/3% ofsettlement); Rowe v. E.I. Dupont de Nemours & co., 2011 WL 3837106, at *22

(D.N.J. Aug. 26, 2011) (fmding award of 33.33% to be reasonable in caseestablishing $8.3 million settlement fund); Milliron v. T-Mobile USA, Inc., 2009WL 3345762, at *8 (D.N.J. Sept. 10, 2009), as amended (Sept. 14, 2009), aff’d,423 F. App’x 131 (3d Cir. 2011) (awarding attorneys’ fees of 33.33% of $13.5million); McGee, supra, 2009 WL 539893, at * 16 (court approved fee of up to32°/o of the value of settlement in a case which went from filing to settlement intwo years and where the only contested motion was a motion to dismiss).

(7) In common-fund cases where the attorneys’ fees are to be paid as apercentage of the recovery from the same source as the settlement benefits, thecourts of this Circuit analyze the attorneys’ fees request based on the factors set

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forth by the Third Circuit in Gunter V. Ridgewood Energy Corp., 223 F.3d 190 (3dCir. 2000). See Milliron, supra, 2009 WL 3345762, at *9 (“In common fund casesof the type presented here — where attorneys’ fees and the Class recovery comefrom the same source and the fees are based on a percentage of the Classsettlement — the Third Circuit has set forth a multi-factor analysis to help analyzewhether or not the percentage award is reasonable.”)

(8) The seven Gunter factors are: (1) the size of the fund created and thenumber of persons benefitted; (2) the presence or absence of substantial objectionsby members of the class to the settlement terms andJor fees requested by counsel;(3) the skill and efficiency of the attorneys involved; (4) the complexity andduration of the litigation; (5) the risk of nonpayment; (6) the amount of timedevoted to the case by plaintiffs’ counsel; and (7) the awards in similar cases.Gunter, supra, 233 F.3d at 195 n.l. See also, In reAT&TC’orp., supra, 455 F.3d at165; In re Cendant, supra, 243 F.3d at 733; Electrical carbon, supra, 447F.Supp.2d at 405.

(9) The Gun ter factors “are not to be applied in a formulaic way becauseeach case is different and in certain cases, one factor might outweigh the rest.” Inre AT&T Corp., supra, 455 F.3d at 166.

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(10) “What is important is that the district court evaluate what classcounsel actually did and how it benefitted the class.” In re AT&T Corp., supra,

455 F.3d at 165-66; In re Ikon Office Solutions, Inc. Securities Litigation, 194F.R.D. 166, 194 (E.D. Pa. 2000) (“The most significant factor in this case is thequality of representation, as measured by ‘the quality of the result achieved, thedifficulties faced, the speed and efficiency of the recovery, the standing,experience, and expertise of the counsel, the skill and professionalism with whichcounsel prosecuted the case and the performance and quality of opposingcounsel.”) (quoting from In re omputron Software, Inc., 6 F.Supp.2d 313, 323(D.N.J. 1998)).

(11) The Third Circuit recommends that courts cross-check the percentage-of-recovery calculation with the lodestar-multiplier method to ensure that thepercentage-of-recovery calculation is not too great. In re AT&T Corp., supra, 455F.3d at 164. That said, “the lodestar cross-check, while useful, should not displacea district court’s primary reliance on the percentage-of-recovery method.” Id.Moreover, “[tjhe lodestar cross-check calculation need entail neither mathematicalprecision nor bean-counting.” In re Rite Aid, supra, 396 F.3d at 300. Rather,“district courts may rely on summaries submitted by attorneys and need not reviewactual billing records.” Id.

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(12) The lodestar method calculates fees by multiplying the hoursexpended by an appropriate hourly rate. In re Gen. Motors, supra, 55 F.3d at 819,n.37. The hours billed must be reasonable in amount, and the hourly rates of thoseperforming the services must be reasonable in the market and properly account forthe quality of the work and the experience of the lawyer. In re Rite Aid, supra, 396F.3dat3O6n. 14.

(13) Class Counsel’s lodestar is “presumptively reasonable” where it arisesfrom a reasonable hourly rate and a reasonable number of hours. PlannedParenthood v. Attorney General of the State ofNew Jersey, 297 F.3d 253, 265 n.5(3d Cir. 2002). In assessing the reasonableness of an attorney’s hourly rate, courtsconsider the prevailing market rate in the community for similar services bylawyers of reasonably comparable skill, experience, and reputation. Barkouras V.

Hecker, 2007 WL 1797651, at *3.4 (D.N.J. June 20, 2007) (citing Blum v. Stenson,465 U.S. 886, 895-96 and n.h (1984)).

(14) Where there has been a class settlement, the lodestar “is usuallymultiplied by a factor to reflect the degree of success, the risk of non-payment theattorneys faced and perhaps the delay in payment that they encountered.” Brown v.Esmor Corr. Servs., 2005 WL 1917869, at *13 (D.N.J. Aug. 10, 2005); see also InRe Prudential Ins. Co. Am. Sales Practices Litig. Agent Actions, 148 F.3d 283, 340(3d Cir. 1998) (“Multipliers may reflect the risks of nonrecovery facing counsel,

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may serve as an incentive for counsel to undertake socially beneficial litigation, ormay reward counsel for an extraordinary result.”).

(15) The Third Circuit has recognized that lodestar multipliers from one tofour “are frequently awarded” in class cases. In re Prudential Ins. Co., supra, 148F.3d at 341 (citing 3 Herbert Newberg & Albert Conte, Newberg on Class Actions

§ 14.03 at 14-5 (3d ed. 1992)); see also In re Cendant Corp. Litig., supra, 243 F.3dat 73 5-36 (multiplier of 3 used although case “was neither legally nor factuallycomplex,” there was a “minimal amount of motion practice,” and the partiessubmitted a settlement agreement within four months of the filing date); In reVtorin ERISA Litig., supra, 2010 WL 547613, at *13 (approving lodestarmultiplier of 2.78); In re Rite Aid Corp. Sec. Litig., 362 F.Supp.2d 587, 590 (E.D.Pa. 2005) (on remand from court of appeals, awarding 6.96 lodestar multiplier in anine-figure settlement obtained in a risky case “without relying on the fruits of anyofficial investigation”).

(16) Under Rule 23(h), in a certified class action “counsel for a class actionis entitled to reimbursement of expenses that were adequately documented andreasonably and appropriately incurred in the prosecution of the class action.”Careccio V. BMWofN. Am. LLC, 2010 WL 1752347, at *7 (D.N.J. Apr. 29, 2010).See also Merck Sharp & Dohme Pharm., SRL v. Teva Pharm. USA, Inc., 2010 WL1381413, at *4..7 (D.N.J. Mar. 31, 2010). Plaintiffs bear the evidentiary burden of

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showing that the claimed expenses are reasonable. In re Safety Components, Inc.

Sec. Litig., 166 F.Supp.2d 72, 108 (D.N.J. 2001).

(17) In determining whether the expenses claimed by counsel are

reasonable, the Court must consider whether the expenses were adequately

documented and appropriately incurred in the prosecution of the case. McGee,

supra, 2009 WL 539893, at *18; Yong Soon Oh, supra, 225 F.R.D. at 154.

(18) Courts in this district have found that travel and lodging for court or

deposition appearances, reasonable photocopying expenses, telephone and

facsimile charges, postal, messenger and express mail service charges, witness and

expert fees, computer-assisted research fees, filing fees, deposition and trial

transcript fees, and other expenses are incidental to and reasonably incurred in

connection with litigation and thus recoverable. Dewey v. Volkswagen ofAm., 728

F.Supp.2d 546, 611-612 (D.N.J. 2010).

ORDER

Pursuant to Fed.R. Civ.P. 23(h), the Court orders as follows:

(I) Attorneys’ fees in the amount of $19,260,000 are awarded to ClassCounsel for their services in connection with the litigation and resolution of theclaims asserted in this action.

(2) Class Counsel shall be reimbursed for their reasonable litigationexpenses occurred in connection with this action in the amount of $352,883.

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(3) Kurtzman Carson Consultants, the court-appointed SettlementAdministrator, shall be paid up to $2,057,647 in fees and expenses for class noticeand settlement administration services.

(4) The $1 9,260,00 in attorneys’ fees, the $352,883 in litigation expenses,and the up to $2,057,647 in settlement administration costs shall be paid from theSettlement Fund.

(5) The $1 9,260,00 in attorneys’ fees will be reduced to the extent of theincentive awards that are being separately granted to the Class Representatives inthe aggregate amount of $30,000, so that the net amount that will be paid to ClassCounsel for attorneys’ fees is $19,230,000.

Dated 7Hon. Jose L. LinaresUnited States District Judge

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