The Honorable Marsha J. Pechman WESTERN DISTRICT OF ... · LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES [PLC-23] Master No: 2:08-md-1919

LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES [PLC-23] Master No: 2:08-md-1919 MJP

Bernstein Litowitz Berger & Grossmann LLP1285 Avenue of the Americas

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The Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

IN RE WASHINGTON MUTUAL, INC. SECURITIES & ERISA LITIGATION

) ) ) ) )

No. 2:08-md-1919 MJP

IN RE WASHINGTON MUTUAL, INC. SECURITIES LITIGATION This Document Relates to: ALL CASES

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Lead Case No. C08-387 MJP PLC-23 LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES NOTE ON MOTION CALENDAR (Settlement Hearing Date): November 4, 2011 at 9:00 a.m.


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TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ii

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

A. Summary Of Case Prosecution And Risks ..............................................................4

B. The Basis For The Fee Request ...............................................................................7

C. Notice To The Class Of The Fee And Expense Application ...................................8

ARGUMENT ...................................................................................................................................9

I. THE REQUESTED ATTORNEYS’ FEES ARE FAIR AND REASONABLE .........................................................................................................9

A. The Court Should Award A Percentage Of The Common Fund .............................9

B. The Requested Fee Of 22.5% Of The Settlement Funds Is Reasonable ................10

1. The Requested Fee Is Reasonable Under The Percentage Method ...........10

2. The Requested Fee Is Reasonable Under The Lodestar Method ...............13

C. Consideration Of The Relevant Factors Used By Courts In The Ninth Circuit Supports The Fee Request .........................................................................15

1. The Results Achieved ................................................................................16

2. The Risks Of The Litigation ......................................................................16

3. The Skill Required And Quality Of The Work Performed ........................18

4. The Contingent Nature Of The Fee And The Financial Burden Carried By Counsel ....................................................................................20

5. Awards Made In Similar Cases..................................................................21

6. The Reaction Of The Class ........................................................................21

7. Public Policy Considerations .....................................................................22

II. LEAD COUNSEL’S EXPENSES ARE REASONABLE AND WERE NECESSARILY INCURRED TO ACHIEVE THE BENEFITS OBTAINED FOR THE CLASS ............................................................23

CONCLUSION ..............................................................................................................................25


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TABLE OF AUTHORITIES

Page(s) CASES

Backman v. Polaroid Corp., 910 F.2d 10 (1st Cir. 1990) ......................................................................................................21

Blum v. Stetson, 465 U.S. 886 (1984) .................................................................................................................14

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ...................................................................................................................9

California Alliance of Child & Family Services v. Wagner, 2011 WL 2837423 (N.D. Cal. July 15, 2011) ..........................................................................14

City of Roseville Employees’ Retirement System v. Micron Technology, Inc., 2011 WL 1882515 (D. Idaho Apr. 28, 2011) ..........................................................................13

Craft v. County of San Bernardino, 624 F. Supp. 2d 1113 (C.D. Cal. 2008) ...............................................................................9, 10

Dusek v. Mattel, Inc., No. 99-10864-MRP, slip op. (C.D. Cal. Sept. 29, 2003) .........................................................11

Fischel v. Equitable Life Assurance Society, 307 F.3d 997 (9th Cir. 2002) ...................................................................................................10

Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1993) .................................................................................................14

Glass v. UBS Financial Services, 331 Fed. Appx. 452 (9th Cir. 2009) .........................................................................................13

Gustafson v. Valley Inssurance Co., 2004 WL 2260605 (D. Or. Oct. 6, 2004) .................................................................................18

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .............................................................................................9, 10

Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994) .......................................................................................................23

Hicks v. Morgan Stanley, 2005 WL 2757792 (S.D.N.Y. Oct. 24, 2005) ..........................................................................23


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In re Activision Securities Litigation, 723 F. Supp. 1373 (N.D. Cal. 1989) ........................................................................................10

In re AremisSoft Corp. Securities Litigation, 210 F.R.D. 109 (D.N.J. 2002) ..................................................................................................13

In re BP Prudhoe Bay Royalty Trust Securities Litigation, No. C06-1505 MJP, slip op. (W.D. Wash. June 30, 2009) ......................................................11

In re Broadcom Corp. Securities Litigation, 2005 U.S. Dist. LEXIS 41993 (C.D. Cal. Sept. 12, 2005)...........................................11, 15, 23

In re Brocade Securities Litigation, No. 05-CV-2042-CRB, slip op. (N.D. Cal. Jan. 26, 2009) ......................................................11

In re CMS Energy Securities Litigation, 2007 U.S. Dist. LEXIS 96786 (E.D. Mich. Sept. 6, 2007) ......................................................12

In re Comverse Technology, Inc. Securities Litigation, 2010 WL 2653354 (E.D.N.Y. June 24, 2010) .........................................................................12

In re DaimlerChrysler AG Securities Litigation, No. 00-0993 (KAJ), slip op. (D. Del. Feb. 5, 2004) ................................................................12

In re Deutsche Telekom AG Securities Litigation, 2005 U.S. Dist. LEXIS 45798 (S.D.N.Y. June 9, 2005) ...................................................12, 13

In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 2007 WL 2416513 (N.D. Cal. Aug. 16, 2007) ........................................................................20

In re Equity Funding Corp. Securities Litigation, 438 F. Supp. 1303 (C.D. Cal. 1977) ........................................................................................20

In re Heritage Bond Litigation, 2005 WL 1594389 (C.D. Cal. June 10, 2005) ................................................................. passim

In re Informix Corp. Securities Litigation, 1999 U.S. Dist. LEXIS 23579 (N.D. Cal. Nov. 23, 1999).......................................................11

In re Initial Public Offering Securities Litigation, 671 F. Supp. 2d 467 (S.D.N.Y. 2009) ......................................................................................12

In re KeySpan Corp. Securities Litigation, 2005 WL 3093399 (E.D.N.Y. Sept. 30, 2005) ........................................................................20

In re M.D.C. Holdings Securities Litigation, 1990 WL 454747 (S.D. Cal. Aug. 30, 1990) ...........................................................................10


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In re Mercury Interactive Corp. Securities Litigation, 618 F.3d 988 (9th Cir. 2010) ...............................................................................................8, 13

In re Merrill Lynch & Co. Research Reports Securities Litigation, 246 F.R.D. 156 (S.D.N.Y. 2007) .............................................................................................12

In re MicroStrategy, Inc. Securities Litigation, 172 F. Supp. 2d 778 (E.D. Va. 2001) ......................................................................................14

In re Omnicom Group, Inc. Securities Litigation, 597 F.3d 501 (2d Cir. 2010).....................................................................................................21

In re Omnivision Technologies, Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2008) ........................................................................... passim

In re Oracle Securities Litigation, 852 F. Supp. 1437 (N.D. Cal. 1994) ........................................................................................10

In re Oxford Health Plans, Inc. Securities Litigation, 2003 U.S. Dist. LEXIS 26795 (S.D.N.Y. June 12, 2003) .......................................................12

In re Rite Aid Corp. Securities Litigation, 146 F. Supp. 2d 706 (E.D. Pa. 2001) .......................................................................................12

In re Rite Aid Corp. Securities Litigation, 362 F. Supp. 2d 587 (E.D. Pa. 2005) .......................................................................................12

In re Rite Aid Corp. Securities Litigation, 396 F.3d 294 (3d Cir. 2005).....................................................................................................12

In re Royal Ahold N.V. Securities & ERISA Litigation, 461 F. Supp. 2d 383 (D. Md. 2006) .........................................................................................15

In re Schering-Plough Corp. Securities Litigation, 2009 WL 5218066 (D.N.J. Dec. 31, 2009) ..............................................................................12

In re Veeco Instrstruments Inc. Securities Litigation, 2007 WL 4115808 (S.D.N.Y. Nov. 7, 2007) .......................................................................7, 22

In re Washington Public Power Supply Systems Securities Litigation, 19 F.3d 1291 (9th Cir. 1994) .............................................................................................16, 20

In re Williams Securities Litigation, No. 02-CV-72-SPF (FHM), slip op. (N.D. Okla. Feb. 12, 2007) ............................................12

In re Worldcom, Inc. Securities Litigation, 2004 WL 2591402 (S.D.N.Y. Nov. 12, 2004) .....................................................................7, 22


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Knight v. Red Door Salons, Inc., 2009 WL 248367 (N.D. Cal. Feb. 2, 2009) ...................................................................9, 21, 25

McGuire v. Dendreon Corp., Case No. C07-800 MJP, slip op. (W.D. Wash. Dec. 20, 2010) ...............................................11

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) ...............................................................................................9, 10

Rodriguez v. West. Publishing Corp., 563 F.3d 948 (9th Cir. 2009) ...................................................................................................10

Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ...................................................................................................9

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) .................................................................................................................22

Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240, 1244 (9th Cir. 1982), vacated and remanded on other grounds, 461 U.S. 952 (1983) .................................................................................................................25

Torrisi v. Tuscon Electric Power Co., 8 F.3d 1370 (9th Cir. 1993) .....................................................................................................10

Van Vranken v. Atlantic Richfield Corp., 901 F. Supp. 294 (N.D. Cal. 1995) ..........................................................................................13

Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) ......................................................................................... passim

Westar Energy, Inc. v. Lake, 493 F. Supp. 2d 1126 (D. Kan. 2007) ......................................................................................15

STATUTES

Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) ......................................................................................................................6

OTHER AUTHORITIES

Fed. R. Civ. P. 23(f) .........................................................................................................................5

Fed. R. Civ. P. 23(h) ....................................................................................................................1, 8

H.R. Conf. Rep. No. 104-369 (1995), reprinted in 1995 U.S.C.C.A.N. 730 (1995) .....................22


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Court-appointed Lead Counsel, Bernstein Litowitz Berger & Grossmann LLP (“Lead

Counsel” or “BLB&G”), having achieved a total recovery of $208.5 million in cash for the

benefit of the Class in this action, respectfully submits this motion, pursuant to Fed. R. Civ. P.

23(h), for an award of attorneys’ fees on behalf of Plaintiffs’ Counsel in the amount of 22.5% of

each Settlement Fund. Lead Counsel also seeks reimbursement of $5,347,015.07 in Litigation

Expenses that were reasonably and necessarily incurred in prosecuting the Action.

Lead Plaintiff is simultaneously submitting herewith the Declaration of Hannah Ross in

Support of Lead Plaintiff’s Motions for Final Approval of Class Action Settlements and

Approval of Plan of Allocation and Lead Counsel’s Motion for an Award of Attorneys’ Fees and

Litigation Expenses (the “Ross Declaration” or “Ross Decl.”) and Lead Plaintiff’s Motion for

Final Approval of Class Action Settlements (the “Settlement Motion”). For the sake of brevity,

the Court is respectfully referred to the Ross Declaration and the Settlement Motion for a

detailed description of, inter alia: the history of the Action through the submission of the

Settlements to the Court; the nature of the claims asserted in the Action; the negotiations leading

to the Settlements; the value of the Settlements to the Class, as compared to the risks and

uncertainties of continued litigation; and a description of the services Lead Counsel, Liaison

Counsel, and the other Plaintiffs’ Counsel provided for the benefit of the Class.1

PRELIMINARY STATEMENT

After over three years of hard-fought litigation, Plaintiffs’ Counsel have succeeded in

obtaining Settlements on behalf of Lead Plaintiff and the Class totaling $208.5 million, plus

interest. Lead Plaintiff and Lead Counsel believe the Settlements to be an excellent result for the

Class. Lead Counsel, Liaison Counsel, and the other Plaintiffs’ Counsel prosecuted this Action

on behalf of the Class on a purely contingent-fee basis and achieved this result in the face of

significant hurdles and risks to recovery.

1 Unless otherwise noted, capitalized terms shall have the meaning set out in the Ross Declaration or in the Stipulations of Settlement (ECF Nos. 874-1, 874-2 and 874-3).


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The Settlements were achieved only after Lead Counsel, Liaison Counsel, and other

Plaintiffs’ Counsel working under Lead Counsel’s direction had: conducted an extensive

investigation into WaMu’s mortgage loan business; prepared two detailed complaints based on

this investigation; briefed responses to two rounds of motions to dismiss and a motion for

judgment on the pleadings; reviewed and analyzed more than 26 million pages of documents

produced by Defendants and third parties; took or participated in 37 depositions across the

country, including 25 fact depositions and 12 depositions in connection with class certification;

participated in other class certification discovery; successfully moved for class certification;

litigated in the Bankruptcy Court proceedings to protect the claims of the Class; assisted certain

governmental investigations (upon request); retained and consulted with numerous experts; and

participated in a complex and adversarial mediation process. See, e.g., Ross Decl. at ¶ 5.

Lead Counsel’s achievement in obtaining the Settlements is underscored by the

significant risks faced by Plaintiffs with respect to establishing liability and damages in the

Action and the prospect, following WaMu’s bankruptcy, that the Class, if it prevailed at trial,

would probably not be able to recover on a judgment against the Individual Defendants. The

Settlements were accomplished as a result of the unwavering efforts of Lead Counsel, who,

together with Liaison Counsel and the other Plaintiffs’ Counsel, dedicated immense time and

resources, and brought to bear the skill and expertise necessary to achieve the outstanding result

for the Class under the oversight of Lead Plaintiff.

The prosecution of this Action was undertaken by Plaintiffs’ Counsel on an entirely

contingent basis. As described below, Lead Counsel, Liaison Counsel and other Plaintiffs’

Counsel spent over 94,000 hours prosecuting this case and they funded millions of dollars of

expenses without any assurance that they would be compensated and in the face of some of the

finest defense firms in the country doing their best to try to ensure that the Class would recover

nothing. Indeed, when WaMu filed for bankruptcy weeks after the filing of the Consolidated

Complaint, which removed a significant source of potential recovery for the Class, the risk of

non-payment became even greater. As compensation for their efforts on behalf of the Class,


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Lead Counsel is applying, on behalf of all Plaintiffs’ Counsel, for attorneys’ fees constituting

22.5% of each Settlement Fund (i.e., 22.5% of each Settlement Amount with any interest earned

thereon), and for reimbursement of $5,347,015.07 in litigation expenses. In addition to Lead

Counsel, the application includes Liaison Counsel Byrnes Keller Cromwell LLP; and counsel for

the other Plaintiffs who assisted in the prosecution of this Action under the direction of Lead

Counsel: Sugarman & Susskind, P.A.; Saxena White, PA; and Murray Frank LLP (formerly

known as Murray, Frank & Sailer LLP). Fees will be allocated among Plaintiffs’ Counsel in a

manner which, in the opinion of Lead Counsel, fairly compensates Plaintiffs’ Counsel for their

respective contributions to the prosecution of the Action. Fees will be allocated only based on

actual legal work performed by Plaintiffs’ Counsel to advance this litigation.

The fee percentage was approved by Lead Plaintiff Ontario Teachers’ Pension Plan

Board (“Lead Plaintiff” or “Ontario Teachers”), a sophisticated institutional investor with

experience serving as a lead plaintiff in securities class actions and in retaining and negotiating

fees with counsel. Lead Plaintiff, which closely supervised the investigation, prosecution,

mediation and settlement of the Action, approved this fee percentage based on its experience in

serving as a Lead Plaintiff, its knowledge of the attorneys’ fees sought and awarded in other

federal securities class actions, and in light of the considerable risks of the Action and the time

and effort devoted by Plaintiffs’ Counsel. See Declaration of In Ha Jang for the Ontario

Teachers’ Pension Plan Board (“Jang Decl.”), attached as Exhibit 2 to the Ross Declaration, at

¶¶ 24, 26. Judge Layn R. Phillips, a highly respected mediator with broad experience mediating

complex commercial cases, including federal securities class actions, has also stated, based on

his extensive experience mediating similar cases, that he believes the fee request is fair and

reasonable. See Declaration of Layn R. Phillips (the “Phillips Decl.”), attached as Exhibit 1 to

the Ross Declaration, at ¶ 19.

Fees in this Circuit are generally awarded as a percentage of the common fund. The

requested fee percentage here is below the 25% benchmark for such awards established by the

Ninth Circuit (see Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002)), and is


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within the range of fee awards customarily granted in securities class actions of comparable size,

complexity and risk. See Section I.B.1 below. The requested fee is also reasonable when

compared to Plaintiffs’ Counsel’s lodestar. The requested 22.5% fee would result in a multiplier

of approximately 1.2 on Plaintiffs’ Counsel’s aggregate lodestar of $38,513,189.00, based on

each firm’s regular current rates. See Ross Decl. ¶ 121. A lodestar multiplier of 1.2 is

reasonable compared to awards in similar cases and in light of the substantial contingency risks

of the litigation.

The expenses incurred by Plaintiffs’ Counsel that are being applied for total

$5,347,015.17 and include the costs of experts, the fees of Lead Plaintiff’s counsel in WaMu’s

bankruptcy proceedings, out-of-town travel, document management costs, and other expenses of

the type typically charged to clients billed by the hour. These expenses, which have been

approved by Lead Plaintiff (see Jang Decl. ¶ 25), were reasonable and necessary to the

prosecution of the Action and Lead Counsel respectfully requests that they be approved for

reimbursement from the Settlement Funds.

For these reasons, as discussed further below, Lead Counsel respectfully submits that the

requested fees and expenses are fair and reasonable and should be granted.

A. Summary Of Case Prosecution And Risks

Lead and Liaison Counsel began to vigorously prosecute the Action immediately upon

their appointment on May 7, 2008. However, the favorable settlements achieved for the Class

were not reached until after nearly three years of their sustained efforts, which were assisted as

appropriate by other Plaintiffs’ Counsel. As explained in greater detail in the Ross Declaration,

by the time the Settlements were reached, Lead Counsel and the other Plaintiffs’ Counsel had,

among other things:

Conducted an extensive investigation, which included interviews with nearly 500 witnesses and a thorough review of publicly available information about WaMu (Ross Decl. ¶¶ 31-37);

Drafted and filed two detailed complaints based upon this investigation (id. ¶¶ 38-39, 42);


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Researched and prepared extensive briefing in opposition to five separate motions to dismiss the Consolidated Complaint, five separate motions to dismiss the Amended Complaint, and a high-stakes motion for judgment on the pleadings (id. ¶¶ 401-41, 43-47, 74-77);

Conducted extensive merits discovery, including the review over 26 million pages of documents produced by Defendants and various third-parties (id. ¶¶ 48-59), and the depositions of 25 fact witnesses (id. ¶¶ 65-66);

Successfully litigated several important discovery disputes before the Court, resulting in the production of numerous critical documents involving WaMu’s regulator, the Office of Thrift Supervision, and Goldman Sachs (¶¶ 60-63);

Successfully litigated a complex and contested motion for class certification (id. ¶¶ 67-72), participated in class certification discovery including 12 depositions (id. ¶ 68) and opposed three Rule 23(f) petitions for appellate review of the Court’s class certification order (id. ¶ 73);

Retained and consulted with experts in accounting and auditing, loan underwriting and statistical analysis, risk management, loss reserve modeling, loss causation, and damages (id. ¶¶ 91-100);

Litigated in WaMu’s Bankruptcy Court proceedings in order to protect the interests of the Class, including, for example, successfully fighting to prevent the Class’s claims from being extinguished (id. ¶¶ 79-83); and

Engaged in extensive settlement negotiations, including several formal mediation sessions with each group of Defendants (id. ¶¶ 85-90).

In sum, the Settlements were achieved only as the result of Plaintiffs’ Counsel’s dedication of

thousands of hours to uncovering the truth about WaMu’s mortgage loan business and advancing

this litigation through their skilled advocacy and hard work.

Additionally, as set forth in greater detail in the Ross Declaration, this Action presented

substantial risks beyond those present in many other class actions prosecuted on a contingency

basis under the exacting standards of the Private Securities Litigation Reform Act of 1995 (the

“PSLRA”). For example, one of the most significant risks faced by Plaintiffs was the possibility

that the Defendants who were most directly involved in the alleged misconduct would be unable

to afford to pay a substantial judgment at the conclusion of the litigation. See Ross Decl. ¶¶ 7,

102-103. This risk was greatly increased when WaMu declared bankruptcy on September 26,

2008, which stayed the Action against WaMu, and left the Individual Defendants as the only


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active Defendants who could be found liable for the damages suffered by purchasers of certain

WaMu securities, including WaMu common stock. See id. ¶ 7, 103.

While Lead Counsel believed, based on its factual investigation and legal research, that

all claims asserted in the Action were meritorious, Lead Counsel also recognized that Lead

Plaintiff and the Class would face substantial hurdles in establishing liability and proving

damages against Defendants. For example, Lead Counsel recognized that the declines in the

prices of WaMu’s securities had occurred at the same time that many other banks and financial

institutions had suffered losses as part of the global economic meltdown in 2007 and 2008. This

created significant challenges for Lead Counsel in establishing the necessary causal connection

between the revelation of the allegedly false statements in WaMu’s public filings and the

declines in the prices of WaMu’s securities. See Ross Decl. ¶ 104. Lead Counsel also

recognized that there were substantial risks with respect to proving the scienter of the Exchange

Act Defendants and proving the falsity of the alleged misstatements. Here, there had been no

restatement of WaMu’s financial statements, Defendants never acknowledged that any improper

conduct had occurred, and there were no successful criminal prosecutions or SEC civil

enforcement actions against any of the Defendants. See Ross Decl. ¶¶ 9, 105. (On the contrary,

Lead Counsel’s detailed investigation into WaMu’s mortgage loan business, underwriting

practices and appraisal conduct was actually utilized several times by various government

entities in their own subsequent investigations. See id. ¶¶ 34-37.) The Officer Defendants who

were alleged to have violated Section 10(b) of the Exchange Act had argued and would continue

to argue that their statements were not intentionally false because the housing crisis was

completely unexpected and that they lacked any motive to commit fraud, indeed, they claimed to

have actually lost substantial money on their WaMu investments. See id. ¶ 105. Additionally,

Defendants would argue that certain of the statements at issue in the Action were not actionably

false or misleading because they were mere opinions or puffery, or because they were estimates

that later proved inaccurate but were not false at time they were made. See id. ¶ 106. These

litigation risks were magnified by the complexity and technical nature of the subject matter


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underlying the claims, which concerned the quality of WaMu’s loan underwriting, appraisal

process, risk management procedures and accounting for its loan loss reserves. These issues

would have had to be presented to the jury through experts. A jury’s reaction to a “battle of

experts” created an additional level of uncertainty about the outcome of the litigation. See id.

¶¶ 104, 109.

It was in the face of these significant risks (and others) that Lead and Liaison Counsel

achieved the Settlements for Lead Plaintiff and the Class.

B. The Basis For The Fee Request

Lead Counsel is applying for attorneys’ fees for all Plaintiffs’ Counsel in the amount of

22.5% of each Settlement Fund. The fee percentage was approved by Lead Plaintiff Ontario

Teachers, a sophisticated institutional investor with a significant financial stake in the Action.

Ontario Teachers has firsthand knowledge of the strengths and weaknesses of the Action,

including the risks of litigation and recovering on a judgment and had directly observed Lead

and Liaison Counsel’s dedicated efforts to obtain the outstanding recovery for the Class. See

Jang Decl. ¶¶ 2-22.

In its review and consideration of the fee percentage, Lead Plaintiff evaluated what, in its

opinion, was a fair and reasonable fee for class counsel. See Jang Decl. ¶ 26. In this assessment,

Lead Plaintiff considered the excellent results obtained in the face of the challenges and risks

described above, and the skill and amount of effort exerted by Lead and Liaison Counsel. See id.

¶¶ 24, 26. As a result, Lead Plaintiff approved the request for 22.5% of the Settlement Funds.

Id. The fact that Lead Plaintiff has approved and recommended the Fee Application is a factor

that should be given considerable weight in this Court’s analysis of the reasonableness of the

requested fee. See In re Veeco Instrs. Inc. Sec. Litig., 2007 WL 4115808, at *8 (S.D.N.Y. Nov.

7, 2007); In re Worldcom, Inc. Sec. Litig., 2004 WL 2591402, at *20 (S.D.N.Y. Nov. 12, 2004).

In addition, the requested percentage that Lead Plaintiff has approved is below the Ninth

Circuit’s 25% benchmark and is within the range of fees typically awarded in other large,

complex and heavily litigated securities class actions in this and other Circuits. The Fee


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Application is particularly fair and reasonable considering the substantial lodestar that Plaintiffs’

Counsel have amassed. The requested fee represents a lodestar multiplier of 1.2, which, in view

of the substantial risks undertaken, is modest when compared to the multipliers awarded in other

large, complex class actions, including those less procedurally advanced and less aggressively

litigated.

C. Notice To The Class Of The Fee And Expense Application

Pursuant to the Preliminary Approval Order entered by the Court on July 21, 2011, the

Court-appointed Claims Administrator began disseminating the Notice to the Class on August

10, 2011. See Affidavit of Jennifer M. Keough Regarding (A) Mailing of the Notice and the

Proof of Claim and Release; (B) Publication of Summary Notice; and (C) Report on Requests for

Exclusion (“Keough Aff.”), attached as Exhibit 3 to the Ross Declaration, at ¶ 3. As of

September 18, 2011, over 950,000 Notices had been mailed to potential Class Members and

nominees stating that Lead Counsel would seek fees in the amount of 22.5% of each Settlement

Fund and reimbursement of up to $5.8 million in Litigation Expenses. See Keough Aff. ¶ 7 and

Keough Aff. Ex. A at ¶¶ 5, 77.

While the objection deadline (October 10, 2011) has not yet passed, no objections to the

application for fees and expenses have been received to date. See Ross. Decl. ¶¶ 131, 145.

Consistent with Rule 23(h) and the Ninth Circuit’s decision in In re Mercury Interactive Corp.

Sec. Litig., 618 F.3d 988 (9th Cir. 2010), this Motion for an Award of Attorneys’ Fees and

Reimbursement of Litigation Expenses is being filed more than 14 days before the deadline for

objections. The Motion will be available to Class Members on PACER and, free of charge, on

www.WashingtonMutualSecuritiesLitigationSettlement.com, the website developed specifically

for the Settlements. If any objections are received after the filing of this Motion, Lead Counsel

will respond in its reply submission, in accordance with the schedule set by the Court


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ARGUMENT

I. THE REQUESTED ATTORNEYS’ FEES ARE FAIR AND REASONABLE

A. The Court Should Award A Percentage Of The Common Fund

The Supreme Court has long recognized that, when a representative plaintiff successfully

establishes a common fund in which others have a beneficial interest, the costs of the litigation,

including an award of reasonable attorneys’ fees, should be paid from the fund. See Boeing Co.

v. Van Gemert, 444 U.S. 472, 478 (1980) (“[A] litigant or a lawyer who recovers a common fund

for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee

from the fund as a whole.”). The purpose of the common fund doctrine is to fairly and

adequately compensate class counsel for their services and prevent the unjust enrichment of

persons who benefit from a lawsuit without bearing its costs. See Boeing, 444 U.S. at 478; Paul,

Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989).

Courts traditionally have used two methods when determining a reasonable attorneys’ fee

in common fund cases: (1) the percentage method, which awards attorneys’ fees as a percentage

of the fund created for the benefit of the class; and (2) the lodestar approach, in which a lodestar

based on the number of hours expended by counsel and the reasonable hourly rate of the

attorneys is adjusted by an appropriate multiplier to reflect the risks of the litigation, the quality

of the results achieved, the complexity and novelty of the issues presented and other factors. See

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998); Graulty, 886 F.2d at 272.

The Ninth Circuit has repeatedly approved the use of the percentage method in common

fund cases. See, e.g., Vizcaino, 290 F.3d at 1047; Hanlon, 150 F.3d at 1029; Six Mexican

Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990); Graulty, 886 F.2d at

272. Indeed, while district courts have discretion to employ either method, see Vizcaino, 290

F.3d at 1047, the percentage method has become the overwhelmingly favored approach for

awarding fees in common fund cases where the value of the fund is readily ascertainable. See

Knight v. Red Door Salons, Inc., 2009 WL 248367, at *5 (N.D. Cal. Feb. 2, 2009) (“use of the

percentage method in common fund cases appears to be dominant”); Craft v. County of San


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Bernardino, 624 F. Supp. 2d 1113, 1123 (C.D. Cal. 2008) (“the general trend [is] towards the

percentage of the fund method”).

The percentage method is desirable because it most closely aligns the lawyers’ interests

with that of the class and creates an incentive for counsel to achieve the maximum possible

recovery in the shortest amount of time. See Craft, 624 F. Supp. 2d at 1123-24; In re Oracle Sec.

Litig., 852 F. Supp. 1437, 1454 (N.D. Cal. 1994). In addition, the percentage method decreases

the burden imposed on courts by eliminating the need for the detailed and time-consuming

lodestar analysis. See In re M.D.C. Holdings Sec. Litig., 1990 WL 454747, at *8 (S.D. Cal. Aug.

30, 1990); In re Activision Sec. Litig., 723 F. Supp. 1373, 1377-78 (N.D. Cal. 1989). It is also

consistent with the practice in the private marketplace where contingent-fee attorneys are

customarily compensated based on a percentage of the recovery. See M.D.C. Holdings, 1990

WL 454747, at *8.

B. The Requested Fee Of 22.5% Of The Settlement Funds Is Reasonable

Whether the percentage or lodestar method is used, the court must determine that the

amount of the award is reasonable under the circumstances. See, e.g., Rodriguez v. West. Publ’g

Corp., 563 F.3d 948, 968 (9th Cir. 2009). Here, in view of the litigation risks faced; the

magnitude and length of the effort required; the result achieved; the skill required and the quality

of the representation; and the endorsement of the fee by a sophisticated institutional Lead

Plaintiff, an award of 22.5% of the Settlement Funds is reasonable.

1. The Requested Fee Is Reasonable Under The Percentage Method

The Ninth Circuit has recognized that attorneys’ fees awarded under the percentage

method ordinarily range from 20% to 30% of the fund (see Graulty, 886 F.2d at 272), and has

established 25% of the settlement amount as the appropriate benchmark for such awards. See

Fischel v. Equitable Life Assur. Soc’y, 307 F.3d 997, 1006 (9th Cir. 2002); Vizcaino, 290 F.3d at

1047-48; Hanlon, 150 F.3d at 1029; Torrisi v. Tuscon Elec. Power Co., 8 F.3d 1370, 1376 (9th

Cir. 1993); Graulty, 886 F.2d at 272. The 25% benchmark can “be adjusted upward or

downward to account for any unusual circumstances involved in [the] case.” Graulty, 886 F.2d


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at 272. Indeed, “in most common fund cases, the award exceeds that benchmark.” In re

Omnivision Techs. Inc., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 2008); accord In re Heritage

Bond Litig., 2005 WL 1594403, at *19 & n.14 (C.D. Cal. June 10, 2005).

The 22.5% fee requested here is reasonable because it is below the benchmark

established by the Ninth Circuit and falls within the range of percentage fees generally awarded

in this Circuit in securities class actions and other complex class actions with large recoveries.

See, e.g., In re Brocade Sec. Litig., No. 05-CV-2042-CRB, slip op. at 13 (N.D. Cal. Jan. 26,

2009) (awarding 25% of $160 million settlement fund net of expenses) (attached hereto as

Exhibit 1); In re Broadcom Corp. Sec. Litig., 2005 U.S. Dist. LEXIS 41993, at *15-*22 (C.D.

Cal. Sept. 12, 2005) (awarding 25% of $150 million settlement fund); Dusek v. Mattel, Inc., No.

99-10864-MRP, slip op. at 2 (C.D. Cal. Sept. 29, 2003) (awarding 27% of $122 million

settlement fund) (attached hereto as Exhibit 2); In re Informix Corp. Sec. Litig., 1999 U.S. Dist.

LEXIS 23579, at *6 (N.D. Cal. Nov. 23, 1999) (awarding 30% of $132 million settlement fund);

see also Vizcaino, 290 F.3d at 1048-50 (affirming award of 28% of a $96.9 million settlement

fund); McGuire v. Dendreon Corp., Case No. C07-800 MJP, ECF No. 235, slip op. at 3-4 (W.D.

Wash. Dec. 20, 2010) (awarding 25% of $16.5 million settlement fund) (attached hereto as

Exhibit 3); In re BP Prudhoe Bay Royalty Trust Sec. Litig., No. C06-1505 MJP, ECF No. 27, slip

op. at 2 (W.D. Wash. June 30, 2009) (awarding 27% of $43.25 million settlement fund) (attached

hereto as Exhibit 4). Indeed, in this multi-district litigation, when the plaintiffs in the ERISA

action settled with certain of these same defendants well over a year ago, the Court approved a

fee application for 25% of the overall settlement. ECF No. 795, slip op. at 4. Here, in order to

achieve the substantial recovery obtained from Defendants, Lead Plaintiff needed to push the

case forward a considerable distance, including through Class certification and extensive merits

discovery. All of this further supports the reasonableness of the fee application here for 22.5%

of the settlement. (Also, as discussed below, the multiplier here is lower than the multiplier

resulting from the 25% fee awarded in the WaMu ERISA case.)


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A review of fee awards in securities class actions in other Circuits with recoveries of

similar size also supports the reasonableness of the requested 22.5% fee. See, e.g., In re

Comverse Tech., Inc. Sec. Litig., 2010 WL 2653354, at *4 (E.D.N.Y. June 24, 2010) (awarding

25% of $225 million settlement fund); In re Schering-Plough Corp. Sec. Litig., 2009 WL

5218066, at *5-*6 (D.N.J. Dec. 31, 2009) (awarding 23% of $165 million settlement); In re

Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467, 516 (S.D.N.Y. 2009) (awarding 33.3% of

$510 million net settlement fund); In re CMS Energy Sec. Litig., 2007 U.S. Dist. LEXIS 96786,

at *14-*15 (E.D. Mich. Sept. 6, 2007) (awarding 22.5% of $200 million settlement fund); In re

Merrill Lynch & Co. Research Reports Sec. Litig., 246 F.R.D. 156, 178 (S.D.N.Y. 2007)

(awarding 24% of $133 million settlement fund); In re Williams Sec. Litig., No. 02-CV-72-SPF

(FHM), slip op. at 2 (N.D. Okla. Feb. 12, 2007) (awarding 25% of $311 million settlement fund)

(attached hereto as Exhibit 5); In re Rite Aid Corp. Sec. Litig., 362 F. Supp. 2d 587, 588-90 (E.D.

Pa. 2005) (awarding 25% of $126.6 million settlement); In re Deutsche Telekom AG Sec. Litig.,

2005 U.S. Dist. LEXIS 45798, at *12-*13 (S.D.N.Y. June 9, 2005) (awarding 28% of $120

million settlement); In re DaimlerChrysler AG Sec. Litig., No. 00-0993 (KAJ), slip op. at 1-2 (D.

Del. Feb. 5, 2004) (awarding 22.5% of $300 million settlement fund net of expenses) (attached

hereto as Exhibit 6); In re Oxford Health Plans, Inc. Sec. Litig., 2003 U.S. Dist. LEXIS 26795, at

*13 (S.D.N.Y. June 12, 2003) (awarding 28% of $300 million settlement fund); In re Rite Aid

Corp. Sec. Litig., 146 F. Supp. 2d 706, 734-36 (E.D. Pa. 2001) (awarding 25% of $193 million

settlement fund); see generally In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 298 (3d Cir. 2005)

(citing a law school professor’s expert declaration reporting that “percentage recoveries between

25% to 30% were ‘fairly standard’ in . . . class actions involving settlements between $100 and

$200 million”).

As discussed below in Section I.C, an analysis of all of the relevant case-specific factors,

including the quality of the results achieved, the time and effort expended by counsel, the

complexity of the issues, and the risks faced in the litigation also bolsters the reasonableness of

the requested fee percentage.


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2. The Requested Fee Is Reasonable Under The Lodestar Method

Although the overwhelming trend among courts in this Circuit is to apply the percentage

approach to determine attorneys’ fees in common fund cases, courts may use a lodestar analysis

as a “cross-check” on the percentage method. See Glass v. UBS Fin. Servs., 331 Fed. Appx. 452,

456 (9th Cir. 2009); Vizcaino, 290 F.3d at 1050-51. In cases of this nature, fees representing

multiples of the lodestar are regularly awarded to reflect the contingency fee risk and other

relevant factors.

In Vizcaino, the Ninth Circuit noted that

courts have routinely enhanced the lodestar to reflect the risk of non-payment in common fund cases. . . . This mirrors the established practice in the private legal market of rewarding attorneys for taking the risk of nonpayment by paying them a premium over their normal hourly rates for winning contingency cases. . . . In common fund cases, attorneys whose compensation depends on their winning the case [] must make up in compensation in the cases they win for the lack of compensation in the cases they lose.

290 F.3d at 1051 (citations and internal quotation marks omitted).

The Ninth Circuit has found that multipliers ranging up to four are frequently awarded in

common fund cases. See Vizcaino, 290 F.3d at 1051 (affirming a 28% award resulting in a 3.65

multiplier); City of Roseville Employees’ Ret. Sys. v. Micron Tech., Inc., 2011 WL 1882515, at

*7 (D. Idaho Apr. 28, 2011) (a “multiplier of 2.72 . . . is relatively standard”); Mercury

Interactive, 2011 WL 826797, at *2 (awarding fee resulting in a multiplier of 3.08, which the

court said was “within the acceptable range”); see also Deutsche Telekom, 2005 U.S. Dist.

LEXIS 45798, at *12-*14 (awarding fee representing a 3.97 multiplier); In re AremisSoft Corp.

Sec. Litig., 210 F.R.D. 109, 135 (D.N.J. 2002) (awarding fee representing a 4.3 multiplier); see

generally Van Vranken v. Atlantic Richfield Corp., 901 F. Supp. 294, 298 (N.D. Cal. 1995)

(“Multipliers in the 3-4 range are common in lodestar awards for lengthy and complex class

action litigation.”).

Here, the total lodestar of Plaintiffs’ Counsel, derived by multiplying the hours worked

by each firm’s attorneys and paraprofessionals (over 94,000 hours) by their currently hourly


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rates, is $38,513,189.00, such that the requested 22.5% fee, which amounts to $46,912,500

(before interest) represents about 1.2 times Plaintiffs’ Counsel’s lodestar. A lodestar multiplier

of 1.2 is on the low end of multipliers typically awarded, particularly in relation to the substantial

risks of this litigation. Indeed, in the ERISA settlement, the Court approved a fee application of

25% of the settlement, resulting in a lodestar multiplier of 2.03 on approximately 17,000 hours of

work. See ECF No. 795, slip op. at 4; ECF No. 754, at 9-10.

The hourly rates of Lead Counsel, Liaison Counsel and other Plaintiffs’ Counsel that

were used to generate the lodestar are reasonable and appropriate. First, it is appropriate to

calculate the lodestar using “current rather than historic rates in order to adjust for inflation and

loss of the use of funds.” Gates v. Deukmejian, 987 F.2d 1392, 1406 (9th Cir. 1993); accord

Vizcaino, 209 F.3d at 1051 (approving of the district court’s calculation of the lodestar “at

prevailing rates to compensate for delay in receipt of payment”). Reasonable hourly rates are

determined by reference to the prevailing market rates charged by attorneys of comparable skill

and experience in the relevant community. See Blum v. Stetson, 465 U.S. 886, 895 (1984);

California Alliance of Child & Family Servs. v. Wagner, 2011 WL 2837423, at *2 (N.D. Cal.

July 15, 2011). Here, where the Action was a multi-district litigation and Defendants retained

firms of national scope, many of which had their principal offices in California and New York –

including the New York and Los Angeles offices of Simpson Thacher & Bartlett LLP, the Los

Angeles and New York offices of Gibson Dunn & Crutcher LLP, the Palo Alto office of Wilson

Sonsini Goodrich & Rosati, and the Los Angeles office of Latham & Watkins, LLP – it is

appropriate to consider the relevant legal community to be the national market for securities class

action firms with the skill and resources to undertake litigation of this magnitude. Further, by

agreement of the parties, this Action was mediated by the Honorable Layn Phillips, who has a

national practice and works out of his California and New York offices. See In re

MicroStrategy, Inc. Sec. Litig., 172 F. Supp. 2d 778, 788 (E.D. Va. 2001) (“the hourly rates

charged by counsel, although high for this locality, are nonetheless within the range of

reasonableness for PSLRA cases, where the market for class action attorneys is nationwide and


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populated by very experienced attorneys with excellent credentials”); In re Royal Ahold N.V.

Sec. & ERISA Litig., 461 F. Supp. 2d 383, 386 n.6 (D. Md. 2006) (approving fees in securities

class action and holding that class counsel’s “hourly rates, while somewhat high for this district,

are within a reasonable range for the national firms that prosecuted the case”); see also Westar

Energy, Inc. v. Lake, 493 F. Supp. 2d 1126, 1146 (D. Kan. 2007) (where litigation requires

“specialized skills in a narrow area of law, such as . . . antitrust or other complex litigation” the

court need not rely on local rates but may conclude that “the relevant community . . . [is] that

group of attorneys specializing in the relevant law and in complex litigation”).

Further, even if one were to use Seattle rates for all Plaintiffs’ Counsel, it supports the

reasonableness of the requested fee, because the resulting lodestar multiplier is still a modest 1.8.

This multiplier is also well within the range typically awarded in contingency fee cases and, thus,

the lodestar approach – either restated at Seattle rates or not – fully supports the reasonableness

of the requested 22.5% fee.

In sum, the attorneys’ fees requested are well within the range of what courts in this

Circuit and throughout the country commonly award in complex class actions such as this one

and the requested 22.5% fee is reasonable and fair, whether calculated as a percentage of the

fund or in relation to Plaintiffs’ Counsel’s lodestar.

C. Consideration Of The Relevant Factors Used By Courts In The Ninth Circuit Supports The Fee Request

Courts in the Ninth Circuit have considered the following criteria in analyzing the

reasonableness of a request for attorneys’ fees in a common fund case: (1) the results achieved;

(2) the risks of litigation; (3) the skill required and quality of work; (4) the contingent nature of

the fee and financial burden carried by the plaintiffs; (5) awards made in similar cases; (6) the

reaction of the class; and (7) public policy considerations. See Vizcaino, 290 F.3d at 1048-50;

Omnivision, 559 F. Supp. 2d at 1046-48; Heritage Bond, 2005 WL 1594403, at *18; Broadcom,

2005 U.S. Dist. LEXIS 41993, at *20. As discussed below, application of all these factors

confirms that the 22.5% fee request is reasonable.


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1. The Results Achieved

Courts have consistently recognized that the settlement achieved is a major and perhaps

the most important factor to be considered in determining an appropriate fee award. See

Omnivision, 559 F. Supp. 2d at 1046; Heritage Bond, 2005 WL 1594403, at *19.

Lead Counsel have succeeded in obtaining Settlements providing a total cash recovery of

$208.5 million for the Class in the face of significant risks on dispositive legal issues and

regarding collectability of a judgment. This achievement was the result of Lead Counsel’s

extensive investigation of the issues, vigorous prosecution, skillful presentation of the issues, and

forceful settlement negotiations. The Settlements will provide immediate compensation to the

Class and will avoid the substantial risks of lesser or no recovery due to the defenses to liability

and limited sources of recovery. While the Underwriter Defendants and Deloitte were not

subject to the same financial constraints as WaMu and the Individual Defendants, the only

claims against these Defendants were for violations of the Securities Act with respect to the

notes and preferred stock that were offered during the Class Period. There were no claims

against these Defendants on behalf of the purchasers of WaMu common stock. Thus, recovery

for a very significant portion of the Class rested on the resources available to the Individual

Defendants. Under all these circumstances, the amounts obtained in the Settlements are a

substantial achievement on behalf of the Class and weigh in favor of granting the requested fee.

2. The Risks Of The Litigation

Risks of the litigation are an important factor in determining a fair fee award. See, e.g.,

In re Washington Pub. Power Supply Sys. Sec. Litig. (“WPPSS”), 19 F.3d 1291, 1299-1301 (9th

Cir. 1994); Omnivision, 559 F. Supp. 2d at 1046-47 (“The risk that further litigation might result

in Plaintiffs not recovering at all, particularly [in] a case involving complicated legal issues, is a

significant factor in the award of fees.”).

In this Action, Lead Counsel, like the Class Members, faced substantial risks of lesser or

no recovery. One of the most significant risks in the Action was the possibility that the

Defendants who were most directly involved in the alleged fraud – and the only Defendants who


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could be held liable for fraud claims relating to damages to WaMu common stock – would be

unable to afford to pay a material judgment at the conclusion of the litigation. See Ross Decl.

¶ 102. This risk, in fact, materialized shortly after the filing of the Consolidated Complaint,

when WaMu declared bankruptcy in September 2008, leaving the Individual Defendants and

their insurance policies as the sole sources for payment on certain of the Class’s claims. See id.

¶ 103. This risk was further enhanced because the Individual Defendants’ insurance was a

wasting asset that was rapidly being depleted by the costs of defending this Action (which

involved five separate defense firms), litigations pending before this Court, and several

government investigations. Thus, the Individual Defendants’ ability to pay was being

progressively reduced each month as the Action continued. See id. ¶ 102.

From the outset, Lead Counsel also faced substantial risks in establishing liability and

proving damages on behalf of Lead Plaintiff and the Class against all Defendants. As discussed

above and in detail in the Ross Declaration, these risks included, among others:

A finding that some or all of the Class’s damages were caused by factors (such as the economic crisis) other than the allegedly false and misleading statements (Ross Decl. ¶ 104);

A finding that the Officer Defendants did not act with scienter (id. ¶ 105);

A finding that Defendants’ statements regarding WaMu’s underwriting, risk management, loan loss reserves, financial statements, and internal controls were not false and misleading when made (id. ¶ 106); and

A finding that the Underwriter Defendants and Deloitte had performed adequate due diligence with respect to WaMu’s security offerings (id. ¶ 107).

While Lead Counsel developed persuasive evidence and strong legal arguments

supporting the claims against Defendants, Lead Counsel recognized that if Defendants were

successful in these arguments at any stage of the litigation, total recoverable damages for the

Class would have been greatly reduced or eliminated altogether. In the face of these risks, Lead

Counsel achieved a $208.5 million recovery for the Class. These circumstances further support

the propriety of the requested fee.


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3. The Skill Required And Quality Of The Work Performed

The third factor to consider in determining what fee to award is the skill required and

quality of work performed. See Gustafson v. Valley Ins. Co., 2004 WL 2260605, at *2 (D. Or.

Oct. 6, 2004). “The ‘prosecution and management of a complex national class action requires

unique legal skills and abilities.’ This is particularly true in securities cases because the

[PSLRA] makes it much more difficult for securities plaintiffs to get past a motion to dismiss.”

Omnivision, 559 F. Supp. 2d at 1047; see also In re Heritage Bond Litig., 2005 WL 1594389, at

*12 (C.D. Cal. June 10, 2005) (“The experience of counsel is also a factor in determining the

appropriate fee award.”).

Lead Counsel is among the most experienced and skilled practitioners in the securities

litigation field and has a long and successful track record in such cases. See BLB&G Firm

Resume, attached as Exhibit 6-3 to the Ross Declaration. Liaison Counsel is also a highly skilled

and experienced litigator and trial attorney. See Exhibit 7-3 to the Ross Declaration. From the

outset, Lead Counsel, Liaison Counsel and other Plaintiffs’ Counsel engaged in a coordinated

and dedicated effort to obtain the maximum recovery for the Class and demonstrated that they

were dedicating, and that they would continue to dedicate the resources necessary to develop

their case.

As detailed in the Ross Declaration, Lead and Liaison Counsel conducted an extremely

extensive pre-filing investigation of WaMu’s mortgage loan business that included nearly 500

witness interviews; a thorough review of publicly available information and consultation with a

number of experts. See Ross Decl. ¶¶ 31-37. As a result of their persistent and skillful work,

Lead Plaintiff was able to plead detailed allegations based on their investigation and largely

defeat Defendants’ two rounds of motions to dismiss the complaints. Plaintiffs’ Counsel also

demonstrated the quality of their work in successfully obtaining certification of the Class and,

ultimately, in achieving the Settlements totaling $208.5 million on behalf of the Class.

Related factors that should be considered in judging the skill and quality of the class

counsel’s work are the novelty and complexity of the issues and the magnitude of the litigation.


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See Heritage Bond, 2005 WL 1594403, at *20 (“Courts have recognized that the novelty,

difficulty and complexity of the issues involved are significant factors in determining a fee

award.”). Here, there can be no doubt that the issues involved in this litigation were more

complex than a typical securities action. WaMu was one of the nation’s largest savings and loan

associations before its bankruptcy and its residential mortgage lending, which was the subject of

the allegations in the Complaint, was its principal business. The allegations of the Complaint

addressed numerous distinct aspects of WaMu’s mortgage lending business, including its

underwriting practices, its use of appraisals, and its risk management function, as well as

challenging the proper accounting for WaMu’s loan loss reserves. Unlike many securities cases

which involve the truth or falsity of a discrete fact represented in a public filing, this case was

largely predicated upon omissions to disclose facts about entire facets of WaMu’s business

operations, such as loan underwriting, risk management, and other control procedures, that made

Defendants’ public statements misleading. This entailed discovery regarding many aspects of

WaMu’s business, and the complexity and technical nature of the issues required the retention

and extensive use of experts in a variety of fields, including accounting and auditing, loan

underwriting and statistical analysis, risk management, loss reserve modeling, loss causation, and

damages. See Ross Decl. ¶¶ 91-100. Many of the complex issues that were central to the

allegations of the Complaints, such as the adequacy of WaMu’s loss reserve statistical modeling,

would have to have been presented to a jury through a “battle of the experts.”

The magnitude of the litigation and the scope of the work performed by Plaintiffs’

Counsel are also reflected in the substantial amount of discovery conducted. Here, Plaintiffs’

Counsel successfully obtained, reviewed, and analyzed over 26 million pages of documents from

Defendants and third parties (see Ross Decl. ¶¶ 53-59), and prepared for and participated in 37

depositions of fact and class certification witnesses, including numerous WaMu employees (see

id. ¶ 65-66, 68).

Lead Counsel, through its vigorous prosecution of the Action, made it abundantly clear to

Defendants and their counsel that it was willing and able to take this case to trial, which was


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undoubtedly a factor that encouraged Defendants to engage in settlement discussions, and added

valuable leverage in the negotiations, ultimately resulting in the recovery for the Class. Thus,

Lead Counsel’s extensive efforts and skill leading to the Settlements strongly support the

requested percentage fee.

Finally, the quality and vigor of opposing counsel is also important in evaluating the

services rendered by Lead Counsel. See, e.g., Heritage Bond, 2005 WL 1594403, at *20; In re

Equity Funding Corp. Sec. Litig., 438 F. Supp. 1303, 1337 (C.D. Cal. 1977). The Settling

Defendants were represented by some of the country’s most prominent and highly skilled

defense law firms, including Simpson Thacher & Bartlett LLP; Davis Wright Tremaine LLP;

Wilson Sonsini Goodrich & Rosati; Orrick, Herrington & Sutcliffe LLP; Gibson, Dunn &

Crutcher LLP; Latham & Watkins, LLP; and Perkins Coie LLP. These firms vigorously litigated

the Action and spared no effort in the defense of their clients. The fact that Plaintiffs’ Counsel

achieved these beneficial Settlements for the Class in the face of such formidable legal

opposition further evidences the quality of their work.

4. The Contingent Nature Of The Fee And The Financial Burden Carried By Counsel

The Ninth Circuit has confirmed that a determination of a fair and reasonable fee must

include consideration of the contingent nature of the fee and the obstacles surmounted in

obtaining the settlement. See WPPSS, 19 F.3d at 1299 (“It is an established practice in the

private legal market to reward attorneys for taking the risk of non-payment by paying them a

premium over their normal hourly rates for winning contingency cases”); Omnivision, 559 F.

Supp. 2d at 1047 (“The importance of assuring adequate representation for plaintiffs who could

not otherwise afford competent attorneys justifies providing those attorneys who do accept

matters on a contingent-fee basis a larger fee than if they were billing by the hour or on a flat

fee.”); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 2007 WL 2416513, at

*1 (N.D. Cal. Aug. 16, 2007) (“Plaintiffs’ counsel risked time and effort and advanced costs and

expenses with no ultimate guarantee of compensation.”).


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Here, Plaintiffs’ Counsel received no compensation for over three years of heated

litigation and invested $38,513,189.00 in time, and incurred expenses totaling $5,347,015.07 in

obtaining the Settlements for the benefit of the Class. See Ross Decl. ¶¶ 121, 133. In addition to

the advancement of costs, lawyers working on the case have forgone the business opportunity to

devote time to other cases. See Vizcaino, 290 F.3d at 1050. Any fee award has always been at

risk, and completely contingent on the result achieved and on this Court’s discretion in awarding

fees and expenses.

Indeed, the risk of no recovery in complex cases is very real. Lead Counsel knows from

personal experience that, despite the most vigorous and competent efforts, their success in

contingent litigation such as this is never guaranteed. The commencement of a class action is no

guarantee of success. These cases are not always settled, nor are plaintiffs’ lawyers always

successful. See, e.g., In re Omnicom Group, Inc. Sec. Litig., 597 F.3d 501 (2d Cir. 2010)

(affirming grant of summary judgment in favor of defendants on loss causation grounds after

several years of litigation); Backman v. Polaroid Corp., 910 F.2d 10 (1st Cir. 1990) (class won a

substantial jury verdict and a motion for judgment n.o.v. was denied, but on appeal judgment

was reversed and the case dismissed, after 11 years of litigation). In light of the significant

challenges to establishing liability and damages and recovering on a judgment that were present

in this case, as discussed above, the contingent nature of fee strongly supports the fee request.

5. Awards Made In Similar Cases

As discussed in Section I.B.1 above, Lead Counsel’s requested fee of 22.5% of the

Settlement Funds is below the Ninth Circuit’s 25% benchmark and is within the range typically

awarded in similar cases.

6. The Reaction Of The Class

The reaction of the class to a proposed settlement and fee request is a relevant factor in

approving fees. See Red Door Salons, 2009 WL 248367, at *7; Omnivision, 559 F. Supp. 2d at

1048. As of September 18, 2011, the Notice had been sent to over 950,000 potential Class

Members and the Summary Notice was published in The Seattle Times and The Wall Street


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Journal and issued over the PR Newswire on August 23, 2011. See Keough Aff. ¶¶ 7-8 (attached

as Exhibit 3 to the Ross Declaration). The Court-approved Notice (attached as Ex. A to the

Keough Aff.) informed Class Members that Lead Counsel intended to apply to the Court for an

award of attorneys’ fees in the amount of 22.5% of the Settlement Funds. The Notice further

advised Class Members of their right to object to the Settlements, the Plan of Allocation, or the

request for attorneys’ fees and expenses. While the deadline for submitting objections does not

expire until October 10, 2011, to date, no Class Member has filed an objection. This factor

further supports the requested fee award.

In addition, Lead Plaintiff Ontario Teachers, which was actively involved in the

prosecution, mediation and settlement of this Action, has approved the fee. See Jang Decl.,

attached as Exhibit 2 to the Ross Decl., at ¶¶ 24, 26. Ontario Teachers is a paradigmatic example

of the type of sophisticated and financially interested investor that Congress envisioned serving

as a fiduciary for the class when it enacted the PSLRA. The PSLRA was intended to encourage

sophisticated institutional investors like Ontario Teachers to assume control of securities class

actions in order to “increase the likelihood that parties with significant holdings in issuers, whose

interests are more strongly aligned with the class of shareholders, will participate in the litigation

and exercise control over the selection and actions of plaintiff’s counsel.” See H.R. Conf. Rep.

No. 104-369, at *27, reprinted in 1995 U.S.C.C.A.N. 730, 731 (1995). Congress believed that

these institutions would be in the best position to monitor the ongoing prosecution of the

litigation and to assess the reasonableness of counsel’s fee request. Accordingly, the

endorsement of the fee by a PSLRA Lead Plaintiff supports approval of the fee. See Veeco

Instrs., 2007 WL 4115808, at *8; Worldcom, 2004 WL 2591402, at *20.

7. Public Policy Considerations

The Supreme Court has “long recognized that meritorious private actions to enforce

federal antifraud securities laws are an essential supplement to criminal prosecutions and civil

enforcement actions.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 313 (2007). In

furtherance of this important public policy, courts should award fees that are sufficient to


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encourage plaintiffs’ counsel to bring securities class actions that supplement the efforts of the

SEC, taking into account the risks undertaken in such actions. See Broadcom, 2005 U.S. Dist.

LEXIS 41993, at *20-*21 (“Recognizing that the federal securities laws are remedial in nature,

the courts have encouraged fee awards that fairly reward attorneys who have served the

Congressional purpose of enforcing the laws with private lawsuits.”); Hicks v. Morgan Stanley,

2005 WL 2757792, at *9 (S.D.N.Y. Oct. 24, 2005) (“To make certain that the public is

represented by talented and experienced trial counsel, the remuneration should be both fair and

rewarding.”).

II. LEAD COUNSEL’S EXPENSES ARE REASONABLE AND WERE NECESSARILY INCURRED TO ACHIEVE THE BENEFITS OBTAINED FOR THE CLASS

Lead Counsel also requests that the Court grant their application for $5,347,015.07 in

reimbursement of costs incurred by Plaintiffs’ Counsel in connection with the prosecution of this

litigation. See Ross Decl. ¶ 133. The appropriate analysis to apply in deciding whether expenses

are compensable in a common fund case of this type is whether the particular costs are of the

type typically billed by attorneys to paying clients in the marketplace. See, e.g., Harris v.

Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (class counsel “may recover as part of the award of

attorney’s fees those out-of-pocket expenses that ‘would normally be charged to a fee paying

client.’”); Omnivision, 559 F. Supp. 2d at 1048 (“Attorneys may recover their reasonable

expenses that would typically be billed to paying clients in non-contingency matters.”);

(citations omitted).

From the beginning of the case, Lead Counsel and the other Plaintiffs’ Counsel were

aware that they might not recover any of their expenses, and, at the very least, would not recover

anything until the Action was successfully resolved. Lead Counsel also understood that, even

assuming that the case was ultimately successful, an award of expenses would not compensate

them for the lost use of the funds advanced to prosecute this Action. Thus, Lead Counsel were


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motivated to, and did, take significant steps to minimize expenses whenever practicable without

jeopardizing the vigorous and efficient prosecution of the Action. See Ross Decl. ¶ 134.

The expenses for which Plaintiffs’ Counsel seek reimbursement are the type of expenses

routinely charged to hourly paying clients. For example, a large portion of the litigation

expenses for which reimbursement is sought were incurred for experts’ fees and fees of counsel

who assisted Plaintiffs’ Counsel with respect to bankruptcy issues. Of the total amount of

expenses, over $1.9 million was expended on experts and consultants in the areas of accounting

and auditing; loss causation, market efficiency, and damages; loan underwriting and statistical

analysis, risk management, and loss reserve modeling. The hourly rate of Plaintiffs’ experts was

reasonable (see Ross Decl. ¶ 137) and far less than experts retained by Defendants for similar

purposes. The expertise and assistance provided by these experts was critical to the prosecution

and successful resolution of this Action. See id. ¶¶ 91-100. Fees paid to Lowenstein Sandler PC,

which provided valuable and necessary services as counsel for Lead Plaintiff in WaMu’s Chapter

11 bankruptcy proceedings, came to $921,960.24. See id. ¶ 138.

Another significant expense related to the cost or processing, uploading, hosting and

accessing the over 26 million pages of documents produced to Lead Plaintiff and reviewed by

Plaintiffs’ Counsel. These document management charges amounted to over $1.4 million. See

id. ¶ 139. This system allowed Lead Counsel and Liaison Counsel to coordinate seamlessly in

the preparation for depositions and other aspects of the litigation. See id. ¶ 58. Another large

component of the litigation expenses was for on-line legal and factual research such as Westlaw

and Lexis. This research was necessary to the successful prosecution of the Action and, as

discussed in the respective declarations of Plaintiffs’ Counsel, the costs for which reimbursement

are sought are the amounts billed to Plaintiffs’ Counsel by these vendors. See id. ¶ 140.

Further, Lead Counsel and Liaison Counsel were required to travel in connection with

prosecuting and mediating this matter and taking and defending depositions and, thus, incurred

the related costs of travel tickets, meals, and lodging. Included in the expense request is

$157,613.76 for out-of-town travel expenses necessarily incurred for the prosecution of this


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Litigation. See Ross Decl. ¶ 141. As set forth in Plaintiffs’ Counsel’s respective declarations all

charges for air travel in this application are at coach fare rates. See id. The expenses in this

category are reasonable in amount, and are properly charged against the fund created.

The other expenses for which reimbursement is sought are the types of expenses that are

necessarily incurred in litigation and routinely charged to clients billed by the hour. These

expenses include, among others, long distance telephone and facsimile charges, postage and

delivery expenses, filing fees, photocopying, and court reporters’ fees. See Thornberry v. Delta

Air Lines, Inc., 676 F.2d 1240, 1244 (9th Cir. 1982), vacated and remanded on other grounds,

461 U.S. 952 (1983); see also Red Door Salon, 2009 WL 248367, at *7 (approving of expenses

relating to “online legal research, travel, postage and messenger services, phone and fax charges,

copying, court costs, and the costs of travel”); Omnivision, 559 F. Supp. 2d at 1048 (approving

of expenses relating to “photocopying, printing, postage and messenger services, court costs,

legal research on Lexis and Westlaw, experts and consultants, and the costs of travel for various

attorneys and their staff throughout the case”). Plaintiffs’ Counsel are not seeking

reimbursement for working meals or local travel costs incurred in the Action, although such

costs are typically billed to clients in connection with after-hours work by attorneys and staff

(and reimbursed by courts in common fund cases). See Ross Decl. ¶ 133 n.6.

The Court-approved Notice provided to potential Class Members informed them that

Lead Counsel intended to apply for the reimbursement of litigation expenses in an amount not to

exceed $5.8 million. The amount of expenses now sought – $5,347,015.07 – is less the amount

stated in the Notice. The deadline for objecting to the fee and expense application is October 10,

2011. To date, there have been no objections to the request for reimbursement of expenses.

CONCLUSION

For the foregoing reasons, Lead Counsel respectfully requests that the Court approve its

Fee and Expense Application and award attorneys’ fees in the amount of 22.5% of each

Settlement Fund and reimbursement of Litigation Expenses in the amount of $5,347,015.07, to

be paid from the Settlement Funds.


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Dated: September 25, 2011 Respectfully submitted, BERNSTEIN LITOWITZ BERGER &

GROSSMANN LLP By: /s/ Hannah Ross Hannah Ross (pro hac vice) Katherine M. Sinderson (pro hac vice) 1285 Avenue of the Americas New York, New York 10019 Tel: (212) 554-1400 Fax: (212) 554-1444 Email: [email protected]

[email protected]

Counsel for Lead Plaintiff Ontario Teachers’ Pension Plan Board and Lead Counsel for the Class

BYRNES & KELLER LLP Bradley S. Keller, WSBA# 10665 Jofrey M. McWilliam, WSBA# 28441 1000 Second Avenue, Suite 3800 Seattle, Washington 98104 Tel: (206) 622-2000 Fax: (206) 622-2522 Email: [email protected]

[email protected] Liaison Counsel for the Class


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CERTIFICATE OF SERVICE

I hereby certify that on September 25, 2011, I electronically filed the foregoing and all of

its attachments with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to the e-mail addresses on the Court’s Electronic Mail Notice list.

BERNSTEIN LITOWITZ BERGER &

GROSSMANN LLP By: /s/ Hannah Ross Hannah Ross (pro hac vice) Katherine M. Sinderson (pro hac vice) 1285 Avenue of the Americas New York, New York 10019 Tel: (212) 554-1400 Fax: (212) 554-1444 Email: [email protected]

[email protected] Counsel for Lead Plaintiff Ontario Teachers’ Pension Plan Board and Lead Counsel for the Class

BYRNES & KELLER LLP Bradley S. Keller, WSBA# 10665 Jofrey M. McWilliam, WSBA# 28441 1000 Second Avenue, Suite 3800 Seattle, Washington 98104 Tel: (206) 622-2000 Fax: (206) 622-2522 Email: [email protected]

[email protected]

Liaison Counsel for the Class

#577927

Exhibit 1

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1 No. 3:05-CV-02042-CRB

Jeffrey J. Angelovich (admitted Pro Hac Vice)Bradley E. Beckworth (admitted Pro Hac Vice)Susan Whatley (admitted Pro Hac Vice)NIX, PATTERSON & ROACH, L.L.P.205 Linda Drive Daingerfield, Texas 75638Telephone: 903-645-7333 Facsimile: [email protected]@[email protected]

Sean Rommel (admitted Pro Hac Vice)PATTON ROBERTS, PLLCCentury Bank Plaza 2900 St. Michael Drive, Suite 400 Texarkana, TX 75505-6128 Telephone: 903-334-7000Facsimile: [email protected]

Co-Lead Counsel

Laurence D. King (State Bar No. 206423)Linda M. Fong (State Bar No. 124232)KAPLAN FOX & KILSHEIMER LLP555 Montgomery Street, Suite 1501San Francisco, CA 94111Telephone: 415-772-4700Facsimile: [email protected]@KaplanFox.com

Liaison Counsel

Sean M. Handler (admitted Pro Hac Vice)John A. KehoeSCHIFFRIN BARROWAY TOPAZ &KESSLER LLP280 King of Prussia Rd.Radnor, PA 19087Telephone: 610-667-7706Facsimile: [email protected]@sbtklaw.com

Additional Counsel for Erie

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

In re: BROCADE SECURITIESLITIGATION

))))))))))))))))

Consolidated Case No.: 3:05-CV-02042-CRB

FINAL ORDER AND JUDGMENT

Case3:05-cv-02042-CRB Document496-1 Filed01/26/09 Page1 of 15

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2 No. 3:05-CV-02042-CRB

WHEREAS, a consolidated class action is pending in this Court captioned: In re: Brocade

Securities Litigation, Consolidated Case No. 3:05-CV-02042-CRB (the “Action”);

WHEREAS, the Court previously certified the Class (as defined herein) in this Action by

Order dated October 12, 2007, over the opposition of defendants Brocade Communications Systems,

Inc. (“Brocade” or the “Company”) and Gregory Reyes, Antonio Canova, Larry Sonsini, Seth

Neiman, and Neal Dempsey (collectively, “Individual Defendants”);

WHEREAS, on November 18, 2008, the Court preliminarily certified the same Class for

purposes of effectuating the settlement among Lead Plaintiff and Class Representative, Arkansas

Public Employees Retirement System (“APERS”), and Class Representative, Erie County Public

Employees Retirement System (“ERIE”) (together, “Class Representatives”), and KPMG LLP

(“KPMG” and, collectively with Brocade and the Individual Defendants, “Defendants”);

WHEREAS, pursuant to Federal Rule of Civil Procedure 23(e), this matter came before the

Court for hearing pursuant to the Preliminary Approval of Settlement Agreement Order dated

November 18, 2008 (the “Notice Order”), on the application of the parties for approval of a

proposed settlement of the Action (the “Settlement”) set forth in the following stipulations: (i) a

Modified Stipulation and Agreement of Settlement dated January 14, 2009 entered into among Class

Representatives, on behalf of themselves and the Class, Brocade and the Individual Defendants (the

“Brocade Stipulation”), and (ii) a Stipulation and Agreement of Settlement dated October 23, 2008

entered into among Class Representatives, on behalf of themselves and the Class, and KPMG (the

“KPMG Stipulation,” and together with the Brocade Stipulation, the “Stipulations”);

WHEREAS, due and adequate notice has been given to the Class as required in the Notice

Order; and

WHEREAS, the Court has considered all papers filed and proceedings had herein and

otherwise is fully informed in the premises and good cause appearing therefor;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:


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3 No. 3:05-CV-02042-CRB

1. This Order and Final Judgment (the “Judgment”) incorporates by reference the

definitions in the Stipulations and all terms used herein shall have the same meanings as set forth

in the Stipulations unless otherwise defined herein.

2. This Court has jurisdiction over the subject matter of the Action, and over all parties

to the Action (the “Parties”), including all members of the Class.

3. The Notice of Class Action, Proposed Settlement, Motion for Attorneys’ Fees and

Fairness Hearing (the “Notice”) has been given to the Class, pursuant to and in the manner directed

by the Notice Order, proof of the mailing of the Notice and publication of the Publication Notice

was filed with the Court by Plaintiffs’ Counsel, and full opportunity to be heard has been offered

to all Parties, the Class, and persons and entities in interest. The form and manner of Notice and

Publication Notice are hereby determined to have: (a) constituted the best practicable notice, (b)

constituted notice that was reasonably calculated, under the circumstances, to apprise Class

Members of the pendency of the Action, of the effect of the Stipulations, including the effect of the

releases provided for therein, of their right to object to the proposed Settlement, of their right to

exclude themselves from the Class, and of their right to appear at the Fairness Hearing, (c)

constituted reasonable, due, adequate and sufficient notice to all persons or entities entitled to

receive notice, and (d) met all applicable requirements of the Federal Rules of Civil Procedure, the

United States Constitution (including the Due Process Clause), 15 U.S.C. § 78u-4(a)(7), the Rules

of the Court and all other applicable laws. It is further determined that all members of the Class are

bound by the Judgment herein.

4. In connection with the certification of the Class, the Court has already determined

that each element Federal Rule of Civil Procedure 23(a) and 23(b)(3) was satisfied as to Class

Representatives’ claims against Brocade and the Individual Defendants and incorporates that prior

order as if set forth fully herein. Additionally, for purposes of effectuating the Settlement, each of

the provisions of Fed. R. Civ. P. 23 has been satisfied and the Action has been properly maintained

according to the provisions of Rules 23(a) and 23(b)(3) as to Class Representatives’ claims against


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4 No. 3:05-CV-02042-CRB

KPMG. Specifically, this Court finds that: (a) the Class is so numerous that joinder of all members

is impracticable; (b) there are questions of law and fact common to the Class; (c) the claims of the

Class Representatives are typical of the claims of the Class; (d) Class Representatives and their

counsel have fairly and adequately protected the interests of the Class; (e) the questions of law and

fact common to members of the Class predominate over any questions affecting only individual

members of the Class; and (f) a class action is superior to other available methods for the fair and

efficient adjudication of the controversy considering: (i) the interests of the Class Members in

individually controlling the prosecution of the separate actions, (ii) the extent and nature of any

litigation concerning the controversy already commenced by members of the Class, (iii) the

desirability or undesirability of continuing the litigation of the claims asserted in this Action, and

(iv) the difficulties likely to be encountered in the management of this Action as a class action.

5. Accordingly, the Action is hereby certified as a class action pursuant to Fed. R. Civ.

P. 23(a) and 23(b)(3) for purposes of effectuating the Settlement with KPMG on behalf of the same

Class previously certified in this Action, which consists of: all persons and entities who purchased

or otherwise acquired Brocade common stock between May 18, 2000 and May 15, 2005, inclusive,

and who were damaged thereby (the “Class”). Excluded from the Class are: (a) Defendants; (b) all

officers, directors, and partners of any Defendant and of any Defendant’s partnerships, subsidiaries,

or affiliates at all relevant times; (c) members of the immediate family of any of the foregoing

excluded parties; (d) the legal representatives, heirs, successors, and assigns of any of the foregoing

excluded parties; and (e) any entity in which any of the foregoing excluded parties has or had a

controlling interest at all relevant times. Also excluded from the Class are any putative members

of the Class who excluded themselves by timely requesting exclusion in accordance with the

requirements set forth in the Notice, as listed on Exhibit 1 annexed hereto.

6. The Settlement, and all transactions preparatory or incident thereto, is found to be

fair, reasonable, adequate, and in the best interests of the Class, and is hereby approved. The

Parties are hereby authorized and directed to comply with and to consummate the Settlement in


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5 No. 3:05-CV-02042-CRB

accordance with the Stipulations, and the Clerk of this Court is directed to enter and docket this

Judgment in the Action.

7. The Action and all claims included therein, as well as all of the Settled Claims

(defined in the Stipulations and in Paragraph 8(c) below) are dismissed with prejudice as to Class

Representatives and all other members of the Class, and as against each and all of the Released

Parties (defined in the Stipulations and in Paragraph 8(a) below). The Parties are to bear their own

costs, except as otherwise provided in the Stipulations.

8. As used in this Judgment, the terms “Released Parties,” “Related Parties,” “Settled

Claims,” “Settled Defendants’ Claims,” and “Unknown Claims” shall have the meanings set forth

below:

(a) “Released Parties” means Defendants and, as applicable, each of their Related Parties

as defined below.

(b) “Related Parties” means each of Defendants’ past or present directors, officers,

employees, partners, principals, members, insurers, co-insurers, re-insurers, controlling shareholders,

attorneys, advisors, accountants, auditors, personal or legal representatives, predecessors, successors,

parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs, related or affiliated entities,

any entity in which a Defendant has a controlling interest, any member of any Individual

Defendant’s immediate family, or any trust of which any Individual Defendant is the settlor or which

is for the benefit of any member of an Individual Defendant’s immediate family.

(c) “Settled Claims” means and includes any and all claims, debts, demands,

controversies, obligations, losses, rights or causes of action or liabilities of any kind or nature

whatsoever (including, but not limited to, any claims for damages (whether compensatory, special,

incidental, consequential, punitive, exemplary or otherwise), injunctive relief, declaratory relief,

rescission or rescissionary damages, interest, attorneys’ fees, expert or consulting fees, costs,

expenses, or any other form of legal or equitable relief whatsoever), whether based on federal, state,

local, statutory or common law or any other law, rule or regulation, whether fixed or contingent,


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accrued or un-accrued, liquidated or unliquidated, at law or in equity, matured or unmatured,

whether class or individual in nature, including both known claims and Unknown Claims (defined

herein) that: (i) have been asserted in this Action by Class Representatives on behalf of the Class

and its Class Members against any of the Released Parties, or (ii) have been or could have been

asserted in any forum by Class Representatives, Class Members or any of them against any of the

Released Parties, which arise out of, relate to or are based upon the allegations, transactions, facts,

matters, occurrences, representations or omissions involved, set forth, or referred to in the Complaint

and/or the Amended Complaint. Settled Claims shall also include any claims, debts, demands,

controversies, obligations, losses, rights or causes of action that Class Representatives, Class

Members or any of them may have against the Released Parties or any of them which involve or

relate in any way to the defense of the Action or the Settlement of the Action. Notwithstanding the

foregoing, Settled Claims shall not include: (i) any claims to enforce the Settlement, including,

without limitation, any of the terms of the Stipulations, the Notice Order, this Judgment or any other

orders issued by the Court in connection with the Settlement; (ii) any claims asserted by Persons

who exclude themselves from the Class by timely requesting exclusion in accordance with the

requirements set forth in the Notice; (iii) any claims, rights or causes of action that have been or

could have been asserted in the Derivative Actions and/or the Company Action (as defined in the

Brocade Stipulation); or (iv) any and all claims that have been asserted under the Securities Act of

1933 and the Securities Exchange Act of 1934, or any other laws, for the allegedly wrongful conduct

complained of in In re Brocade Communications Systems, Inc. Initial Public Offering Securities

Litigation, 01 CV 6613 (SAS)(BSJ), as coordinated for pretrial purposes in In re Initial Public

Offering Securities Litigation, Master File No. 21 MC 92 (SAS), pending in the United States

District Court for the Southern District of New York.

(d) “Settled Defendants’ Claims” means and includes any and all claims, debts, demands,

controversies, obligations, losses, costs, rights or causes of action or liabilities of any kind or nature

whatsoever (including, but not limited to, any claims for damages (whether compensatory, special,


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incidental, consequential, punitive, exemplary or otherwise), injunctive relief, declaratory relief,

rescission or rescissionary damages, interest, attorneys’ fees, expert or consulting fees, costs,

expenses, or any other form of legal or equitable relief whatsoever), whether based on federal, state,

local, statutory or common law or any other law, rule or regulation, whether fixed or contingent,

accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured,

including both known claims and Unknown Claims, that have been or could have been asserted in

the Action or any forum by the Released Parties against any of the Class Representatives, Plaintiffs’

Counsel, Class Members or their attorneys, which arise out of or relate in any way to the institution,

prosecution, or settlement of the Action. Notwithstanding the foregoing, Settled Defendants’ Claims

shall not include any claims to enforce the Settlement, including, without limitation, any of the terms

of the Stipulations, the Notice Order, this Judgment or any other orders issued by the Court in

connection with the Settlement .

(e) “Unknown Claims” means any and all claims that any Class Representative or Class

Member does not know or suspect to exist and any and all claims that any Defendant does not know

or suspect to exist in his, her or its favor at the time of the release of the Released Parties which, if

known by him, her or it, might have affected his, her or its settlement with and release of, as

applicable, the Released Parties, Class Representatives, and Class Members, or might have affected

his, her or its decision to object or not to object to this Settlement. The Class Representatives, Class

Members, Defendants and each of them have acknowledged and agreed that he, she or it may

hereafter discover facts in addition to or different from those which he, she or it now knows or

believes to be true with respect to the subject matter of the Settled Claims and/or the Settled

Defendants’ Claims. Nevertheless, with respect to any and all Settled Claims and Settled

Defendants’ Claims, the Parties to the Stipulations have stipulated and agreed that, upon the

Effective Date, they shall expressly waive and each of the Class Members shall be deemed to have,

and by operation of the Judgment shall have, waived all provisions, rights and benefits of California

Civil Code § 1542 and all provisions rights and benefits conferred by any law of any state or


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territory of the United States, or principle of common law, which is similar, comparable or

equivalent to California Civil Code § 1542. California Civil Code § 1542 provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IFKNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HISOR HER SETTLEMENT WITH THE DEBTOR.

The Parties to the Stipulations have expressly acknowledged and agreed, and the Class Members

shall be deemed to have, and by operation of the Judgment shall have acknowledged and agreed, that

the waiver and release of Unknown Claims constituting Settled Claims and/or Settled Defendants’

Claims was separately bargained for and a material element of the Settlement.

9. (a) In accordance with 15 U.S.C. § 78u-4(f)(7)(A), any and all claims for

contribution arising out of any Settled Claim (i) by any person against Brocade or the Individual

Defendants, and (ii) by Brocade or the Individual Defendants against any person, other than claims

for contribution that Brocade and/or the Special Litigation Committee (as defined in the Brocade

Stipulation) have asserted or may assert against the Individual Defendants, the Related Parties or

any of them, are hereby permanently barred and discharged. In accordance with 15 U.S.C. § 78u-

4(f)(7)(A), any and all claims for contribution arising out of any Settled Claim (i) by any person

against KPMG, and (ii) by KPMG against any person, other than a person whose liability has been

extinguished by the KPMG Settlement, are hereby permanently barred and discharged. This

paragraph 9(a) shall be referred to herein as the “Bar Order.”

(b) Notwithstanding the Bar Order or any other provision or paragraph in this

Judgment or 15 U.S.C. § 78u-4(f)(7)(A) to the contrary, the Individual Defendants have

acknowledged and agreed, and the Court finds, that the Individual Defendants are “person[s]

whose liability has been extinguished” by the Brocade Stipulation within the meaning of 15 U.S.C.

§ 78u-4(f)(7)(A)(ii). Further, the Court finds that the Individual Defendants have knowingly and

expressly waived the right to assert the Bar Order or 15 U.S.C. § 78u-4(f)(7)(A) as a defense to

any claims for contribution that Brocade and/or the Special Litigation Committee have asserted


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or may assert against them in connection with the defense and Settlement of the Action or any

related litigation arising from the transactions and occurrences that form the basis of the Action;

provided, however, that the Individual Defendants and their Related Parties, and each of them,

shall retain the right to defend against any such claims for contribution on other grounds,

including, without limitation: (i) that he or she is not at fault for the conduct giving rise to the

Settlement; (ii) that his or her proportional fault is less than asserted by Brocade and/or the Special

Litigation Committee; (iii) that Brocade is legally and/or contractually obligated to indemnify him

or her for some or all of the Settlement Amount and/or that he or she is not required to reimburse

or repay Brocade for that indemnified amount; and (iv) that the Settlement Amount is greater than

warranted under all of the circumstances. Further, Brocade and the Special Litigation Committee

have agreed that they will not argue or otherwise assert in any forum or proceeding that (i) by

entering into the Brocade Stipulation the Individual Defendants acquiesced in the Settlement

Amount or waived in any way their arguments challenging the Settlement Amount as excessive,

and (ii) the Bar Order in any way affects or impairs the existing rights of the Individual Defendants

to obtain indemnification and advancement of fees incurred in connection with Settled Claims or

any other claim asserted against them. The Individual Defendants have agreed that they will not

argue or otherwise assert in any forum or proceeding that, by entering into the Brocade

Stipulation, Brocade or the Special Litigation Committee in any way compromised or otherwise

affected its/their right to seek to limit or extinguish any purported obligation to indemnify or

advance fees to the Individual Defendants and their Related Parties or to seek to recover any of

the fees or expenses that Brocade has advanced or may advance on behalf of or for the benefit of

the Individual Defendants and/or their Related Parties.

10. Upon the Effective Date, Class Representatives and all Class Members on behalf

of themselves, their personal representatives, heirs, executors, administrators, trustees, successors

and assigns: (a) shall have fully, finally and forever released, relinquished and discharged each and

every one of the Settled Claims against the Released Parties, whether or not any such Class Member


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or Class Representative executes or delivers a Proof of Claim and Release form (“Proof of Claim”);

and (b) shall be deemed to have covenanted not to sue on, and shall forever be barred from suing

on, instituting, prosecuting, continuing, maintaining or asserting in any forum, either directly or

indirectly, on their own behalf or on behalf of any class or other person, any Settled Claim against

any of the Released Parties.

11. Upon the Effective Date, each of the Defendants, on behalf of themselves and their

Related Parties: (a) shall have fully, finally and forever released, relinquished and discharged each

and every one of the Settled Defendants’ Claims; and (b) shall be deemed to have covenanted not

to sue on, and shall forever be barred from suing on, instituting, prosecuting, continuing, maintaining

or asserting in any forum, either directly or indirectly, on their own behalf or on behalf of any class

or other person, any Settled Defendants’ Claim against Class Representatives, Class Members and

their respective counsel, or any of them.

12. Notwithstanding ¶¶ 9-11 herein, nothing in this Judgment shall bar any action or

claim by any of the Parties or the Released Parties to enforce or effectuate the terms of the

Stipulations or this Judgment.

13. This Judgment and the Stipulations, including any provisions contained in the

Stipulations, any negotiations, statements, or proceedings in connection therewith, or any action

undertaken pursuant thereto:

(a) shall not be offered or received against any Released Party as evidence of or

construed as or deemed to be evidence of any presumption, concession, or admission by the

Released Parties with respect to the truth of any fact alleged by any of the plaintiffs or the validity

of any claim that has been or could have been asserted in the Action or in any litigation, or the

deficiency of any defense that has been or could have been asserted in the Action or in any litigation,

or of any liability, negligence, fault, or wrongdoing of any Released Party;

(b) shall not be offered or received against any Released Party as evidence of a

presumption, concession or admission of any fault, misrepresentation or omission with respect to


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11 No. 3:05-CV-02042-CRB

any statement or written document approved or made by any Released Party;

(c) shall not be offered or received against any Released Party as evidence of a

presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing

in any civil, criminal or administrative action or proceeding, other than such proceedings as may be

necessary to effectuate the provisions of the Stipulations; provided, however, that the Released

Parties may offer or refer to the Stipulations to effectuate the terms of the Stipulations, including the

releases and other liability protection granted them hereunder, and may file the Stipulations and/or

this Judgment in any action that may be brought against them (other than one that has been or may

be brought by Brocade and/or the Special Litigation Committee) in order to support a defense or

counterclaim based on principles of res judicata, collateral estoppel, full faith and credit, release,

good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue

preclusion or similar defense or counterclaim;

(d) shall not be construed against any Released Party as an admission or concession that

the consideration to be given hereunder represents the amount that could be or would have been

recovered after trial; and

(e) shall not be construed as or received in evidence as an admission, concession or

presumption against the Class Representatives or any of the Class Members that any of their claims

are without merit, or that any defenses asserted by Defendants have any merit, or that damages

recoverable under the Action would not have exceeded the Settlement Amount.

14. The Plan of Allocation is approved as fair and reasonable, and Plaintiffs’ Counsel

and the Claims Administrator are directed to administer the Settlement in accordance with the terms

and provisions of the Stipulations.

15. The Court finds that all Parties and their counsel have complied with each

requirement of the PSLRA and Rules 11 and 37 of the Federal Rules of Civil Procedure as to all

proceedings herein and that Class Representatives and Plaintiffs’ Counsel at all times acted in the

best interests of the Class and had a good faith basis to bring, maintain and prosecute this Action as


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12 No. 3:05-CV-02042-CRB

to each Defendant in accordance with the PSLRA and Federal Rule of Civil Procedure 11.

16. Only those Class Members who submit valid and timely Proofs of Claim shall be

entitled to receive a distribution from the Net Settlement Fund. The Proof of Claim to be executed

by the Class Members shall further release all Settled Claims against the Released Parties. All Class

Members shall be bound by all of the terms of the Stipulations and this Judgment, including the

releases set forth herein, whether or not they submit a valid and timely Proof of Claim, and shall be

barred from bringing any action against any of the Released Parties concerning the Settled Claims.

17. No Class Member shall have any claim against Plaintiffs’ Counsel, the Claims

Administrator, or other agent designated by Plaintiffs’ Counsel based on the distributions made

substantially in accordance with the Settlement and Plan of Allocation as approved by the Court and

further orders of the Court.

18. No Class Member shall have any claim against the Defendants, Defendants’ counsel,

or any of the Released Parties with respect to: (a) any act, omission or determination of Plaintiffs’

Counsel, the Escrow Agent or the Claims Administrator, or any of their respective designees or

agents, in connection with the administration of the Settlement or otherwise; (b) the management,

investment or distribution of the Gross Settlement Fund and/or the Net Settlement Fund; (c) the Plan

of Allocation; (d) the determination, administration, calculation or payment of claims asserted

against the Gross Settlement Fund and/or the Net Settlement Fund; (e) the administration of the

Escrow Account; (f) any losses suffered by, or fluctuations in the value of, the Gross Settlement

Fund and/or the Net Settlement Fund; or (g) the payment or withholding of any Taxes, expenses

and/or costs incurred in connection with the taxation of the Gross Settlement Fund and/or the Net

Settlement Fund or the filing of any tax returns.

19. Any order approving or modifying the Plan of Allocation set forth in the Notice, or

the application by Plaintiffs’ Counsel for an award of attorneys’ fees and reimbursement of expenses

or any request of Class Representatives for reimbursement of reasonable costs and expenses shall

not disturb or affect the Finality of this Judgment, the Stipulations or the Settlement contained


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therein.

20. Plaintiffs’ Counsel are hereby awarded a total of $986,039 in reimbursement of

expenses, plus accrued interest. After deducting such expenses from the Gross Settlement Fund,

Plaintiffs’ Counsel also are hereby awarded attorneys’ fees in the amount of 25% of the Gross

Settlement Fund (net of any reimbursed expenses), plus accrued interest, which sum the Court finds

to be fair and reasonable. The foregoing awards of fees and expenses shall be paid to Plaintiffs’

Counsel from the Gross Settlement Fund, and such payment shall be made at the time and in the

manner provided in the Stipulations, with interest from the date the Gross Settlement Fund was

funded to the date of payment at the same net rate that interest is earned by the Gross Settlement

Fund. The appointment and distribution among Plaintiffs’ Counsel of any award of attorneys’ fees

shall be within Plaintiffs’ Counsel’s sole discretion.

21. In making this award of attorneys’ fees and reimbursement of expenses to be paid

from the Gross Settlement Fund, the Court has considered and found that:

(a) the Settlement has created a fund of $160,098,500 million in cash that is

already on deposit, plus interest thereon, and that numerous Class Members who submit acceptable

Proofs of Claim will benefit from the Settlement;

(b) Over 500,000 copies of the Notice were disseminated to putative Class

Members stating that Plaintiffs’ Counsel were moving for attorneys’ fees not to exceed 25% of the

Gross Settlement Fund and reimbursement of expenses from the Gross Settlement Fund in a total

amount not to exceed $1.2 million, and no objections were filed by any Class Member against the

terms of the proposed Settlement or the ceiling on the fees and expenses contained in the Notice;

(c) Plaintiffs’ Counsel have conducted the litigation and achieved the Settlement

in good faith and with skill, perseverance and diligent advocacy;

(d) The Action involves complex factual and legal issues and was actively

prosecuted for over three years and, in the absence of a settlement, would involve further lengthy

proceedings with uncertain resolution of the complex factual and legal issues;


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(e) Had Plaintiffs’ Counsel not achieved the Settlement there would remain a

significant risk that the Class Representatives and the Class may have recovered less or nothing from

the Defendants;

(f) Plaintiffs’ Counsel have advanced in excess of the requested $986,039 in

costs and expenses to fund the litigation of this Action; and

(g) The amount of attorneys’ fees awarded and expenses reimbursed from the

Gross Settlement Fund are fair and reasonable under all of the circumstances and consistent with

awards in similar cases.

22. No Class Member filed an objection to the terms of the settlement or the fee

application. Two objections were filed by former defendants who are not Class Members. Those

objections have been withdrawn and are no longer before the Court. All other objections, if any, are

hereby denied.

23. Without affecting the Finality of this Judgment in any way, the Court reserves

exclusive and continuing jurisdiction over the Action, the Class Representatives, the Class, and the

Released Parties for purposes of: (a) supervising the implementation, enforcement, construction, and

interpretation of the Stipulations, the Plan of Allocation, and this Judgment; (b) hearing and

determining any application by Plaintiffs’ Counsel for an award of attorneys’ fees, costs, and

expenses and/or reimbursement to the Class Representatives, if such determinations were not made

at the Fairness Hearing; and (c) supervising the distribution of the Gross Settlement Fund and/or the

Net Settlement Fund.

24. In the event that the Settlement is terminated or does not become Final in

accordance with the terms of the Stipulations for any reason whatsoever, or in the event that the

Gross Settlement Fund, or any portion thereof, is returned to Brocade or KPMG, then this Judgment

shall be rendered null and void and shall be vacated to the extent provided by and in accordance with

the Stipulations and, in such event, all orders entered and releases delivered in connection herewith

shall be null and void to the extent provided by and in accordance with the Stipulations.


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25. In the event that, prior to the Effective Date, Class Representatives or Brocade

institutes any legal action against the other to enforce any provision of the Brocade Stipulation or

this Judgment or to declare rights or obligations thereunder, the successful Party or Parties shall be

entitled to recover from the unsuccessful Party or Parties reasonable attorneys’ fees and costs

incurred in connection with any such action. Neither KPMG nor the Individual Defendants shall

have any obligation under this paragraph.

26. There is no reason for delay in the entry of this Judgment and immediate entry by

the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil

Procedure.

SIGNED January 26, 2009._______________________________________THE HONORABLE CHARLES R. BREYERUNITED STATES DISTRICT JUDGE


Exhibit 2

Case 2:99-cv-10864-MRP-CW Document 264 Filed 09/29/2003 Page 1 of 3



Exhibit 3

Case 2:07-cv-00800-MJP Document 235 Filed 12/20/10 Page 1 of 6






Exhibit 4

ORDER GRANTING AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF EXPENSES AND AWARD FOR LEAD PLAINTIFF’S TIME AND EXPENSES

No. C06-1505 MJP

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THE HONORABLE MARSHA J. PECHMAN

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

IN RE BP PRUDHOE BAY ROYALTY TRUST SECURITIES LITIGATION

))))))))))))))

Case No. C06-1505 MJP




1No. C06-1505 MJP

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This matter came before the Court on June 30, 2009, by motion of Lead Counsel for an

award of attorneys’ fees and reimbursement of expenses and an award for Lead Plaintiff’s time

and expenses. The Court, having considered all papers filed and proceedings conducted herein,

and having reviewed the entire record in the Litigation, and good cause appearing, hereby enters

the following order.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

1. The Court, for purposes of this Order, adopts all defined terms as set forth in the

Stipulation of Settlement, dated March 13, 2009, attached as Exhibit 1 to the Declaration of Dan

Drachler in Support of Lead Plaintiff the Teramura Family Trust Group’s Unopposed Motion for

Entry of the Order Preliminarily Approving Settlement, Approving Notice, and Scheduling

Settlement Hearing.

2. The Court has jurisdiction over the subject matter of Lead Counsel’s motion and

all matters relating thereto, including all Class Members who have not timely and validly

requested exclusion.

3. Lead Counsel is entitled to a fee paid out of the common fund created for the

benefit of the Class. Boeing Co. v. Van Gemert, 444 U.S. 472, 478-79 (1980). The Ninth Circuit

recognizes the propriety of the percentage of the fund method when awarding fees. Vizcaino v.

Microsoft Corp., 290 F. 3d 1043 (9th Cir. 2002).

4. The Court adopts the percentage of the fund method of awarding fees in this case,

and concludes that the percentage of the fund is the proper method for awarding attorneys’ fees in

this case.



2No. C06-1505 MJP

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5. The Court hereby awards attorneys’ fees of _27_% of the Settlement Fund, to be

paid from the Settlement Fund, as set forth in § VI of the Stipulation, and to include any interest

on such attorneys’ fees at the same rate and for the same period as earned by the Settlement Fund

(until paid).

6. The attorneys’ fee awarded is fair and reasonable based upon the Court’s

consideration of the vigorous prosecution of the Litigation by Lead Counsel and certain other

factors, including: (1) the results achieved; (2) the risk of litigation; (3) the skill required and the

quality of work; (4) the contingent nature of the fee and the financial burden carried by the

plaintiffs; and (5) awards made in similar cases.

7. The objection to the Fee and Expense Application filed by John J. Auld, Jr. and

Nancy S. Auld is hereby overruled.

8. The Court hereby awards Lead Counsel expenses in the aggregate amount of

�� to be paid as set forth in § VI of the Stipulation, and to include any interest on such

expenses at the same rate and for the same period as earned by the Settlement Fund (until paid).

9. The Court hereby awards to George Allen, the representative of Lead Plaintiff,

�� for time and expenses. This award is consistent with the provision in the Private

Securities Litigation Reform Act that allows “the award of reasonable costs and expenses

(including lost wages) directly relating to the representation of the Class to any representative

party serving on behalf of the class,” 15 U.S.C. § 78u-4(a)(4), and is further supported by case

law.

10. The awarded attorneys’ fees and expenses, and interest earned thereon, shall be

paid to Lead Counsel from the Settlement Fund subject to the terms, conditions, and obligations



3No. C06-1505 MJP

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Marsha J. Pechman United States District Judge

of the Stipulation and in particular § VI thereof, which terms, conditions, and obligations are

incorporated herein.

IT IS SO ORDERED.

Dated this 30th day of _June__, 2009

A

Presented by: s/Dan Drachler Dan Drachler, WSBA #27728


Exhibit 5

Exhibit 6

Documents

The Honorable Marsha J. Pechman WESTERN DISTRICT OF ... · LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES [PLC-23] Master No: 2:08-md-1919