united states district court for the southern … · 2019. 5. 30. · united states district court...

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

SHERRYL MEDINA, DANNY ALLEN, and JOHN CARTER WILLIAMS, on behalf of themselves, and all others similarly situated, Plaintiffs, v. ENHANCED RECOVERY COMPANY, LLC dba ERC, a Delaware limited liability company,

Defendant.

Case No. 2:15-CV-14342-JEM/MAYNARD

PLAINTIFFS’ UNOPPOSED MOTION AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT OF THE AWARD OF ATTORNEYS’ FEES, COSTS, AND

INCENTIVE AWARDS KAZEROUNI LAW GROUP, APC KOMLOSSY LAW, P.A. Abbas Kazerounian (pro hac vice) Emily C. Komlossy, Esq. (FBN 7714) [email protected] [email protected]

Mona Amini (pro hac vice) 4700 Sheridan Street, Suite J [email protected] Hollywood, FL 33021 245 Fischer Ave., Unit D1 Telephone: (954) 842-2021 Costa Mesa, CA 92626 Facsimile: (954) 416-6223 Tel: (800) 400-6808 Fax: (800) 520-5523 LAW OFFICES OF LAW OFFICES OF RONALD A. MARRON TODD M. FRIEDMAN, P.C. Ronald A. Marron (pro hac vice) Todd M. Friedman (pro hac vice) [email protected] [email protected] Alexis M. Wood (pro hac vice) 21550 Oxnard Street, #780 [email protected] Woodland Hills, CA 91367 Kas L. Gallucci (pro hac vice) Tel: (877) 206-4741 [email protected] Fax: (866) 633-0228 651 Arroyo Drive San Diego, CA 92103 Tel: (619) 696-9006 Fax: (619) 564-6665 Class Counsel and Attorneys for Plaintiffs

Case 2:15-cv-14342-JEM Document 126 Entered on FLSD Docket 05/22/2019 of 19

mailto:[email protected]





TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................................................ ii

MEMORANDUM OF LAW........................................................................................................ 1

I. INTRODUCTION ............................................................................................................ 1

II. THE SETTLEMENT ....................................................................................................... 1

A. The Settlement Class ............................................................................................ 1

B. Monetary Relief .................................................................................................... 2

III. CLASS COUNSEL ARE ENTITLED TO ATTORNEYS’ FEES AND COSTS

UNDER THE COMMON FUND DOCTRINE ............................................................... 2

IV. CLASS COUNSEL’S REQUESTED FEES ARE FAIR AND REASONABLE ............ 3

A. The Claims Against Defendant Required Substantial Time and Labor ............... 4

B. The Issues Involved Were Novel and Difficult, and Required the Skill of

Highly Talented Attorneys ................................................................................... 4

C. Class Counsel Achieved a Successful Result ....................................................... 5

D. The Claims Presented Serious Risk...................................................................... 5

E. Class Counsel Assumed Considerable Risk in Pursuing This Action on a Pure

Contingency Basis ................................................................................................ 6

F. The Requested Fee Comports With Fees Awarded in Similar Cases .................. 7

G. The Requested Fee is Reasonable Using a Lodestar Cross Check....................... 8

H. Class Counsel’s Rates are Reasonable and Have Been Approved Nationwide

by Numerous Federal and State Courts ................................................................ 9

V. THE REQUESTED LITIGATION COST ARE FAIR AND REASONABLE............. 10

VI. THE REQUESTED INCENTIVE AWARDS ARE FAIR AND REASONABLE ....... 11

VII. CONCLUSION .............................................................................................................. 12


ii

TABLE OF AUTHORITIES ABC Bartending School of Miami, Inc., v. American Chemicals & Equipment, Inc.,

No. 15-CV-23142-KMV (S.D. Fla. April 11, 2017) ............................................................. 8 Allapattah Servs., Inc. v. Exxon Corp.,

454 F. Supp. 2d 1185 (S.D. Fla. 2006) ............................................................................. 7, 11

Alnutt v. Cleary, 27 F. Supp. 2d 395 (W.D.N.Y. 1998) .................................................................................. 10

Bellifemine v. Sanofi−Aventis U.S. LLC,

2010 WL 3119374 (S.D.N.Y. Aug. 6, 2010) ..................................................................... 10 Blum v. Stenson,

465 U.S. 886, 897 (1984) ....................................................................................................... 8 Boeing Co. v. Van Gemert,

444 U.S. 472 (1980) ............................................................................................................... 2 Camden I Condo. Ass’n. v. Dunkle,

946 F.2d 768 (11th Cir. 1991) .................................................................................... 2, 3, 5, 7

In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) ................................................................................... 8

Cioffi v. New York Community Bank,

465 F. Supp. 2d 202 (E.D.N.Y. 2006) .................................................................................. 10 In re Continental Ill. Sec. Litig.,

962 F.2d 566 (7th Cir. 1992) .................................................................................................. 6

Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) .............................................................................................. 11

David v. American Suzuki Motor Corp.,

2010 WL 1628362 (S.D. Fla. Apr. 15, 2010) ....................................................................... 11 DiSorbo v. City of Schenectady, No. 99-CV-1131 (LEK),

2004 WL 115009 (N.D.N.Y. Jan. 9, 2004) ......................................................................... 10 Edmonds v. U.S.,

658 F. Supp. 1126 (D.S.C. 1987) ........................................................................................... 4

In re Gould Sec. Litig., 727 F. Supp. 1201 (N.D. Ill. 1989)......................................................................................... 2


iii

Gottlieb v. Citgo Petroleum Corp., No. 9:16-cv-81911,

2017 U.S. Dist. LEXIS 197382 (S.D. Fla. Nov. 29, 2017) .................................................... 8 Guarisma v. ADCAHB Med. Coverages, Inc.,

No. 1:13-cv-21016 (S.D. Fla. June 24, 2015) ........................................................................ 8 Gutter v. E.I. Dupont De Nemours & Co., 95-2152-Civ-Gold,

2003 U.S. Dist. LEXIS 27238 (S.D. Fla. May 30, 2003) ....................................................... 7 Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974) .................................................................................................. 3

Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) ................................................................................................... 6

Luessenhop v. Clinton Cnty., 558 F. Supp 2d 247 (N.D.N.Y. 2008) .................................................................................. 10

In re: Managed Care Litig. v. Aetna, MDL No. 1334,

2003 WL 22850070 (S.D. Fla. Oct. 24, 2003) ...................................................................... 7 Marty v. Anheuser-Busch Companies, LLC, No. 13-CV-23656-JJO,

2015 WL 6391185 (S.D. Fla. Oct. 22, 2015) ......................................................................... 8 Parker v. Time Warner Entertainment Co., L.P.,

631 F. Supp. 2d 242 (E.D.N.Y. 2009) .................................................................................... 8 Pennsylvania v. Del. Valley Citizens’ Council for Clean Air,

478 U.S. 546 (1986) ............................................................................................................... 8 Ressler v. Jacobson,

149 F.R.D. 651 (M.D. Fla. 1992) ........................................................................................... 5

Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir. 1988) .................................................................................................. 6

In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323 (S.D. Fla. 2001) ....................................................................... 2, 3, 5, 6

In re: Terazosin Hydrochloride Antitrust Litigation, 99-1317-MDL-Seitz, 2005 U.S. Dist. LEXIS 43082 (S.D. Fla. April 19, 2005)...................................................... 7

Velez v. Novartis Pharm. Corp., No. 04 CIV 09194 CM,

2010 WL 4877852 (S.D.N.Y. Nov. 30, 2010) ................................................................. 9, 10


iv

Walco Invs. v. Thenen, 975 F. Supp. 1468 (S.D. Fla. 1997) .................................................................................... 5, 6

Waters v. Int'l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) ............................................................................................. 7

Wolff v. Cash 4 Titles, No. 03-22778- CIV,

2012 WL 5290155 (S.D. Fla. Sept. 26, 2012) ........................................................................ 7


1

MEMORANDUM OF LAW

I. INTRODUCTION

Plaintiffs Sherryl Medina, Danny Allen and John Carter Williams (the “Plaintiffs” or “Class

Representatives”), by and through their undersigned counsel of record (“Class Counsel”), hereby

move this Court for an Order granting Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive

Awards for the Class Representatives.

This Unopposed Motion for Attorneys’ Fees, Costs, and Incentive Awards (“Fee Motion”)

comes before the Court pursuant to the Settlement and the Court’s December 12, 2018 Order

Granting Preliminary Approval (Dkt. No. 124), which set a Final Approval Hearing for June 19,

2019 at 1:30 pm. in the above-entitled Court, for consideration of the fairness, reasonableness, and

adequacy of the proposed Settlement and to hear Plaintiffs’ Motion for Attorneys’ Fees, Costs, and

Incentive Awards.

Pursuant to the Settlement preliminarily approved by this Court, Class Counsel respectfully

move this Court for an award of attorney’s fees equal to no more 33% of the Settlement Fund, or up

to $478,500. Additionally, Class Counsel will seek payment of reasonable and appropriate costs of

litigation. In light of the excellent results achieved in this litigation, and for the reasons detailed

herein, Class Counsel submit that the requested fee is appropriate, fair and reasonable and

respectfully requests that it be approved by the Court.

II. THE SETTLEMENT

A. The Settlement Class

The Settlement Class is defined as:

All persons in the United States who (1) were called one or more times by ERC, (2) on a Sprint, PayPal or AT&T account (3) through LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party Connect, (4) on his or her cellular telephone(s), (5) and that number was designed as a wrong number or bad number, (6) from August 7, 2014 through August 29, 2016, and (7) whose telephone numbers are identified in the Class List.

See Class Action Settlement Agreement (“Agreement”) at 2.27.1

1 A fully executed copy of the parties’ Agreement is attached as Exhibit 1 to the Declaration of Abbas Kazerounian (“Kazerounian Decl.”) filed concurrently in support of Plaintiffs’ Unopposed Motion for Attorney’s Fees, Costs, and Incentive Awards. Capitalized terms have the same meaning as set forth in the Agreement.


2

B. Monetary Relief

The Settlement Fund established by ERC provides for a total settlement payment of

$1,450,000.00. The Settlement Fund will be used to pay Approved Claims, any and all Settlement

Costs, and Class Counsel’s attorneys’ fees and costs of litigation to be paid from the Settlement

Fund, and not in addition thereto. In addition, upon approval by the Court, each of the Class

Representatives shall be paid an incentive award from the Settlement Fund for the time and effort

they have each personally invested in this Action. ERC shall not object to such incentive award to

be paid to each named Plaintiff from the Settlement Fund, provided the incentive award to each

named Plaintiff does not exceed $7,500, subject to Court approval. (Agreement at § 6.02).

III. CLASS COUNSEL ARE ENTITLED TO ATTORNEYS’ FEES AND COSTS UNDER

THE COMMON FUND DOCTRINE

It is well established that when a representative party has conferred a substantial benefit

upon a class, counsel is entitled to attorneys’ fees based upon the benefit obtained. Camden I

Condo. Ass’n. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991) (“Camden I”); Boeing Co. v. Van

Gemert, 444 U.S. 472, 478 (1980). The common benefit doctrine is an exception to the general rule

that each party must bear its own litigation costs. The doctrine serves the “twin goals of removing a

potential financial obstacle to a plaintiff’s pursuit of a claim on behalf of a class and of equitably

distributing the fees and costs of successful litigation among all who gained from the named

plaintiff’s efforts.” In re Gould Sec. Litig., 727 F. Supp. 1201, 1202 (N.D. Ill. 1989) (citation

omitted). The common benefit doctrine stems from the premise that those who receive the benefit of

a lawsuit without contributing to its costs are “unjustly enriched” at the expense of the successful

litigant. Van Gemert, 444 U.S. at 478. As a result, the Supreme Court, the Eleventh Circuit, and

courts in this District have all recognized that “[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 whole.” In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323, 1333 (S.D. Fla. 2001)

(“Sunbeam”). Courts have also recognized that appropriate fee awards in cases such as this

encourage redress for wrongs caused to entire classes of persons, and deter future misconduct of a

similar nature.

In the Eleventh Circuit, Class Counsel are awarded a percentage of the funds obtained

through a settlement. In Camden I – the controlling authority regarding attorneys’ fees in common-

fund class actions – the Eleventh Circuit held that “the percentage of the fund approach [as opposed


3

to the lodestar approach] is the better reasoned in a common fund case. Henceforth in this circuit,

attorneys’ fees awarded from a common fund shall be based upon a reasonable percentage of the

fund established for the benefit of the class.” Camden I, 946 F.2d at 774. The Court has discretion

in determining the appropriate fee percentage. “There is no hard and fast rule mandating a certain

percentage of a common fund which may be awarded as a fee because the amount of any fee must

be determined upon the facts of each case.” Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I,

946 F.2d at 774).

IV. CLASS COUNSEL’S REQUESTED FEES ARE FAIR AND REASONABLE

The Eleventh Circuit has provided the following set of factors the Court should use to

determine a reasonable percentage to award as an attorney’s fee to class counsel in class actions:

1) the time and labor required;

2) the novelty and difficulty of the relevant questions;

3) the skill required to properly carry out the legal services;

4) the preclusion of other employment by the attorney as a result of acceptance of the case;

5) the customary fee;

6) whether the fee is fixed or contingent;

7) time limitations imposed by the clients or the circumstances;

8) the results obtained, including the amount recovered for the Clients;

9) the experience, reputation, and ability of the attorneys;

10) the “undesirability” of the case;

11) the nature and the length of the professional relationship with the clients; and

12) fee awards in similar cases.

Camden I, 946 F.2d at 772 n.3 (citing factors originally set forth in Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

These 12 factors are guidelines and are not exclusive. “Other pertinent factors are the time

required to reach a settlement, whether there are any substantial objections by class members or

other parties to the settlement terms or the fees requested by counsel, any non-monetary benefits

conferred upon the class by the settlement, and the economics involved in prosecuting a class

action.” Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I, 946 F.2d at 775). The Eleventh

Circuit has “encouraged the lower courts to consider additional factors unique to the particular

case.” Camden I, 946 F.2d at 775. As applied, the Camden I factors support the requested fee.


4

A. The Claims Against Defendant Required Substantial Time and Labor

Prosecuting and settling these claims demanded considerable time and labor, making this fee

request reasonable. The organization of Class Counsel ensured that the work was coordinated to

maximize efficiency and minimize duplication of effort. Kazerounian Decl. ¶ 69. Class Counsel

devoted substantial time to investigating the claims against Defendant. Kazerounian Decl. ¶ 10.

Class Counsel also expended resources researching and developing the legal claims at issue. Id.

Substantial time and resources were also dedicated to conducting discovery. Id. Class Counsel

devoted substantial time to reviewing voluminous documents and electronic data produced by

Defendant and prepared for and took the deposition of Defendant’s 30(b)(6) representative. Id.

Class Counsel and Defendant served multiple sets of written discovery and participated in several

lengthy meet and confer conferences and discovery motions. Id. Class Counsel also engaged in

considerable motion practice during this a

Action, as Plaintiffs successfully opposed Defendant’s Motion to Dismiss Plaintiffs’ Amended

Complaint (Dkt. No. 46), filed motions to compel discovery, a Motion for Class Certification, and a

Motion for Preliminary Approval, which were all ultimately granted by the Court.

In addition, the parties participated in a full-day mediation session with Hon. Jay C. Gandhi,

(Ret.) of JAMS (Kazerounian Decl. ¶ 12), and filed a joint motion for a temporary stay of litigation

in this Action while the parties exhausted their mediation efforts. Id. ¶ 13. After the parties reached

a settlement, the parties reduced the agreement into writing after multiple rounds of negotiations

and revisions on the terms as well as soliciting bids for Class Administration. Id. ¶ 16. The parties’

settlement negotiations, along with drafting the formal settlement agreement and class notice

documents, consumed substantial time and resources. Id.

In sum, Class Counsel’s coordinated efforts were instrumental in achieving the successful

result in this action and obtaining the settlement benefits for the Settlement Class. Thus, the time

and resources devoted by Class Counsel in this action readily justify the requested fee award.

B. The Issues Involved Were Novel and Difficult, and Required the Skill of Highly

Talented Attorneys

“[P]rosecution and management of a complex national class action requires unique legal

skills and abilities.” Edmonds v. U.S., 658 F. Supp. 1126, 1137 (D.S.C. 1987). This Court witnessed

the quality of our legal work, which conferred a substantial benefit on the Settlement Class in the


5

face of significant litigation obstacles. Class Counsel’s work required the acquisition and analysis of

a significant amount of factual and legal information.

In any given case, the skill of legal counsel should be commensurate with the novelty and

complexity of the issues, as well as the skill of the opposing counsel. Litigation of this Action

required counsel trained in class action law and procedure as well as the specialized issues

presented here, such as analyzing the Telephone Consumer Protection Act (“TCPA”) and its

nuances, as well as analyzing class certification issues. Class Counsel have demonstrated

experience and success in litigating TCPA class actions, and their participation indisputably added

value to the representation of this Settlement Class. Kazerounian Decl. ¶ 10. The record in this

Action establishes that the Action involved complex and novel challenges, which Class Counsel

met and successfully overcame at every juncture. Id.

In evaluating the quality of representation by Class Counsel, the Court should also consider

opposing counsel. See Camden I, 946 F.2d at 772 n.3; Ressler v. Jacobson, 149 F.R.D. 651, 654

(M.D. Fla. 1992). Throughout the litigation, Defendant was represented by extremely capable

counsel who litigated this case vigorously and were highly competent adversaries. Kazerounian

Decl. ¶ 66; Walco Invs. v. Thenen, 975 F. Supp. 1468, 1472 (S.D. Fla. 1997) (stating that “[g]iven

the quality of defense counsel from prominent national law firms, the Court is not confident that

attorneys of lesser aptitude could have achieved similar results”).

C. Class Counsel Achieved a Successful Result

Given the significant litigation risks Class Counsel faced, the Settlement represents a

successful result. Rather than facing years of costly and uncertain litigation, the Settlement Class

members who submitted Approved Claims will be entitled to claim a pro rata cash benefit of from

the Settlement Fund. Agreement at § 5.02; Kazerounian Decl. ¶ 17.

D. The Claims Presented Serious Risk

The Settlement is particularly noteworthy given the combined litigation risks presented in

this Action. Kazerounian Decl. ¶ 13. As discussed above, Defendant raised substantial and

meritorious defenses. Consideration of the “litigation risks” factor under Camden I “recognizes that

counsel should be rewarded for taking on a case from which other law firms shrunk. Such aversion

could be due to any number of things, including social opprobrium surrounding the parties, thorny

factual circumstances, or the possible financial outcome of a case. All of this and more is enveloped

by the term ‘undesirable.’” Sunbeam, 176 F. Supp. 2d at 1336. Further, “[t]he point at which


6

plaintiffs settle with defendants . . . is simply not relevant to determining the risks incurred by their

counsel in agreeing to represent them.” Skelton v. General Motors Corp., 860 F.2d 250, 258 (7th

Cir. 1988). “Undesirability” and relevant risks must be evaluated from the standpoint of class

counsel as of the time they commenced the suit – not retroactively, with the benefit of hindsight.

Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 112 (3d

Cir. 1976); Walco, 975 F. Supp. at 1473.

Prosecuting this Action was risky from the outset. Defendant has consistently denied the

allegations raised in the Complaint, denied that class certification is proper for any purpose other

than Settlement, and made clear at the outset that it would vigorously seek to defeat class

certification and defend this case through trial if necessary. The recovery obtained through the

Settlement is substantial given the complexity of the litigation and the significant risks and barriers

that loomed in the absence of settlement. Any of these risks could have impeded, or altogether

derailed, Class Counsel and the Settlement Class’ ultimate success in prosecution of the claims in

this action. The recovery achieved by this Settlement must be measured against the fact that any

recovery by Plaintiffs and Settlement Class Members through continued litigation could only have

been achieved if: (i) Plaintiffs were able to establish liability and damages at trial; and (ii) the final

judgment was affirmed on appeal. The Settlement is an extremely fair and reasonable recovery for

the Settlement Class in light of Defendant’s defenses, and the challenging and unpredictable path of

litigation Plaintiffs and the certified class would have faced absent the Settlement. Kazerounian

Decl. ¶ 13.

E. Class Counsel Assumed Considerable Risk in Pursuing This Action on a Pure

Contingency Basis

In undertaking to prosecute this case on a purely contingent fee basis, Class Counsel

assumed a significant risk of nonpayment or underpayment as Class Counsel has received no

payment for their services on behalf of Plaintiffs and for the benefit of the Class to date.

Kazerounian Decl. ¶¶ 62-67. That risk warrants the award of an appropriate fee. Indeed, “[a]

contingency fee arrangement often justifies an increase in the award of attorney’s fees.” Sunbeam,

176 F. Supp. 2d at 1335 (quoting Behrens, 118 F.R.D. at 548); In re Continental Ill. Sec. Litig., 962

F.2d 566 (7th Cir. 1992) (holding that when a common fund case has been prosecuted on a

contingent-fee basis, plaintiffs’ counsel must be adequately compensated for the risk of non-

payment).


7

Public policy concerns – in particular, ensuring the continued availability of experienced and

capable counsel to represent classes of injured plaintiffs holding small individual claims – support

the requested fee. The progress of the Action to date shows the inherent risk faced by Class Counsel

in accepting and prosecuting the Action on a contingency fee basis. Despite Class Counsel’s effort

in litigating this Action, Class Counsel remains completely uncompensated for the time invested

during the years the Action has been pending, in addition to the substantial expenses that were

advanced by Class Counsel for the benefit of the Settlement Class. Kazerounian Decl. ¶¶ 62-67.

There can be no dispute that this case entailed substantial risk of nonpayment for Class Counsel.

F. The Requested Fee Comports With Fees Awarded in Similar Cases

Class Counsel’s requested fee of 33% of the Settlement Fund is within the range of fees

typically awarded in similar cases. Numerous decisions within and outside of the Southern District

of Florida and the Eleventh Circuit have found that a fee in the amount of one-third of the

settlement fund is within the range of reason under the factors listed by Camden I. “[F]ederal

district courts across the country have, in the class action settlement context, routinely awarded

class counsel fees in excess of the 25 percent ‘benchmark.’”2 Allapattah Servs., Inc. v. Exxon Corp.,

454 F. Supp. 2d 1185, 1210 (S.D. Fla. 2006) (emphasis added); Wolff v. Cash 4 Titles, No. 03-

22778- CIV, 2012 WL 5290155, at *5-6 (S.D. Fla. Sept. 26, 2012) (“The average percentage award

in the Eleventh Circuit mirrors that of awards nationwide—roughly one-third.”) (citing Circuit case

law and listing Southern and Middle District of Florida attorneys’ fees awards); In re: Terazosin

Hydrochloride Antitrust Litigation, 99-1317-MDL-Seitz, 2005 U.S. Dist. LEXIS 43082 (S.D. Fla.

April 19, 2005) (awarding fees of 33.33 % of settlement); In re: Managed Care Litig. v. Aetna,

MDL No. 1334, 2003 U.S. Dist. LEXIS 27228, 2003 WL 22850070 (S.D. Fla. Oct. 24, 2003)

(awarding fees and costs of 35.5% of settlement); Gutter v. E.I. Dupont De Nemours & Co., 95-

2152-Civ-Gold, 2003 U.S. Dist. LEXIS 27238 (S.D. Fla. May 30, 2003) (awarding fees of 33.33 %

of settlement); Waters v. Int'l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) (affirming fee

award of 33.33 % of settlement).3

2 See also 4 Newberg on Class Actions, § 14:6, at 551 (4th ed. 2002) (“Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”). 3 In re Lease Oil Antitrust Litig., 186 F.R.D. 403 (S.D. Tex. 1999) (35.1%); see also Gaskill v. Gordon, 942 F. Supp. 382, 387-88 (N.D. Ill. 1996), aff’d, 160 F.3d 361 (7th Cir. 1998) (finding that 33% is the norm, and awarding 38% of settlement fund); In re Combustion, Inc., 968 F. Supp. 1116 (W.D. La. 1997) (36%); In re Crazy Eddie Sec. Litig., 824 F. Supp. 320, 326 (E.D.N.Y. 1993) (33.8


8

Moreover, Class Counsel’s fee request also falls within the range of awards in similar TCPA

cases litigated within this Circuit and elsewhere. See Gottlieb v. Citgo Petroleum Corp., No. 9:16-

cv-81911, 2017 U.S. Dist. LEXIS 197382, at *7 (S.D. Fla. Nov. 29, 2017) (granting fees and costs

amounting to one-third of the $8,000,000.00 settlement fund); ABC Bartending School of Miami,

Inc., v. American Chemicals & Equipment, Inc., No. 15-CV-23142-KMV (S.D. Fla. April 11, 2017)

(granting fees and costs amounting to one-third of the $1,550,000.00 settlement fund); Guarisma v.

ADCAHB Med. Coverages, Inc., No. 1:13-cv-21016 (S.D. Fla. June 24, 2015) (granting fees and

costs amounting to one-third of the $4,500,000.00 settlement fund).

Therefore, the attorneys’ fees requested by Class Counsel are appropriate and should be

awarded by the Court.

G. The Requested Fee is Reasonable Using a Lodestar Cross Check

“In the Eleventh Circuit, a lodestar analysis may be used as a ‘cross-check’ to the

percentage-of-the-fund analysis.” Marty v. Anheuser-Busch Companies, LLC, No. 13-CV-23656-

JJO, 2015 WL 6391185, at *2 (S.D. Fla. Oct. 22, 2015). However, the “use of the lodestar cross-

check is not mandatory.” Id. (citing In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330,

1362-63 (S.D. Fla. 2011)). To calculate lodestar, counsel’s reasonable hours expended on the

litigation are multiplied by counsel’s reasonable rates. See Pennsylvania v. Del. Valley Citizens’

Council for Clean Air, 478 U.S. 546, 565 (1986); Blum v. Stenson, 465 U.S. 886, 897 (1984);

Parker v. Time Warner Entertainment Co., L.P., 631 F. Supp. 2d 242, 264 (E.D.N.Y. 2009). To

date, Class Counsel’s total combined lodestar here is $721,344.00, which is based on 1,355.1 total

hours of work. See Kazerounian Decl. ¶ 70; Friedman Decl. ¶¶ 12, 15-21; Marron Decl. ¶ 10;

Swigart Decl. ¶ 17; Komlossy Decl. ¶ 5. Counsel’s lodestar is summarized as follows:

COUNSEL TITLE RATE HOURS TOTAL

Law Offices of Ronald A. Marron

Ronald A. Marron Partner $785 2.2 $1,727.00

Alexis M. Wood Senior Associate $575 230.8 $132,710.00

Kas L. Gallucci Senior Associate $525 292.8 $153,720.00

%); In re Ampicillin Antitrust Litig., 526 F. Supp. 494, 498 (D.D.C. 1981) (45%); Beech Cinema, Inc. v. Twentieth-Century Fox Film Corp., 480 F. Supp. 1195, 1199 (S.D.N.Y. 1979), aff’d, 622 F.2d 1106 (2d Cir. 1980) (approximately 53%).


9

Kazerouni Law Group, APC

Abbas Kazerounian Partner $705 170.9 $120,484.50

Jason A. Ibey Associate $405 124.4 $50,382.00

Mona Amini Associate $395 304.7 $120,356.50

Hyde & Swigart

Joshua B. Swigart Partner $705 66.4 $46,812.00

Law Offices of Todd M. Friedman, P.C.

Todd M. Friedman Partner $725 61.0 $44,225.00

Tom Wheeler Associate $370 44.1 $16,317.00

Komlossy Law, P.A.

Emily Komlossy Partner $700 38.3 $26,810.00

Ross A. Appel Associate $400 19.5 $7,800.00

Total Lodestar: 1,355.1 $721,344.00

While a modest multiplier would be amply warranted here, Class Counsel seek less than

their actual lodestar, resulting in a negative multiplier of approximately 0.66, which will only

continue to decrease as Class Counsel continue to carry out their duties in effectuating the

Settlement. Velez v. Novartis Pharm. Corp., No. 04 CIV 09194 CM, 2010 WL 4877852, at *23

(S.D.N.Y. Nov. 30, 2010) (“[W]here ‘class counsel will be required to spend significant additional

time on this litigation in connection with implementing and monitoring the settlement, the

multiplier will actually be significantly lower.’”) (citations omitted). And, approval of the fee award

sought under a lodestar cross-check should not be denied when it is less than the lodestar. Id. at *23

(“[T]hat a low multiplier lodestar calculation yields a number approximating the percentage of fund

number persuades the court that it is appropriate to award the full requested fee to plaintiffs’

counsel.”). This is especially true here, where a good recovery was obtained, including relief

unavailable to plaintiffs at trial, there was significant risk, and all Camden I factors support the

request.

H. Class Counsel’s Rates are Reasonable and Have Been Approved Nationwide by

Numerous Federal and State Courts

Class Counsel’s hourly rates are reasonable because they are in line with prevailing hourly

rates charged by other attorneys of comparable experience, reputation, and ability for similar


10

complex consumer protection class action litigation. Class Counsel’s requested rates and hours are

listed in their accompanying declarations. See Kazerounian Decl. ¶¶ 70, 72; Friedman Decl. ¶¶ 12,

15-21; Marron Decl. ¶ 10; Swigart Decl. ¶¶ 17, 20-21. To further assist the Court, Class Counsel

have summarized their relevant experience in their accompanying declarations, exemplifying their

vast experience and expertise in the area of complex consumer protection class action litigation, and

setting forth examples of the hourly rates Class Counsel have been awarded in various other similar

class action cases. See Kazerounian Decl. ¶¶ 27-62, 71-27; Friedman Decl. ¶¶ 17, 18; Marron Decl.

¶¶ 10-12, 14-30; Swigart Decl. ¶¶ 20-21; Komlossy Decl. ¶ 5.

Accordingly, the Court should affirm similar hourly rates that countless other federal and

state courts have previously approved for Class Counsel.

V. THE REQUESTED LITIGATION COSTS ARE FAIR AND REASONABLE

“It is well settled that counsel who create a common fund . . . are entitled to the

reimbursement of [all reasonable] litigation costs and expenses . . . .” Velez, 2010 WL 4877852, at

*23 (quoting In re Marsh ERISA Litig., 265 F.R.D. at 150). Compensable items include, among

others, photocopying, travel expenses, telephone costs, postage, deposition costs, service of process

fees, and filing fees. See Luessenhop v. Clinton Cnty., 558 F. Supp 2d 247, 271-72 (N.D.N.Y.

2008); DiSorbo v. City of Schenectady, No. 99-CV-1131 (LEK), 2004 WL 115009, at * 5

(N.D.N.Y. Jan. 9, 2004) (awarding airfare and hotel expenses); Cioffi v. New York Community

Bank, 465 F. Supp. 2d 202, 217 (E.D.N.Y. 2006) (awarding filing fees, service costs, photocopying,

costs of depositions, and subpoena fees); Alnutt v. Cleary, 27 F. Supp. 2d 395, 403-04 (W.D.N.Y.

1998) (awarding service of process fees).

In litigating this case, Class Counsel have collectively incurred a total of $50,072.94 in

recoverable costs to date. See Kazerounian Decl. ¶¶ 63, 74; Friedman Decl. ¶ 13; Marron Decl. ¶

13; Swigart Decl. ¶ 22; Komlossy Decl. ¶ 6. Class Counsel’s expenses included court filing fees,

expert fees, deposition costs, process server expenses, costs associated with travel, photocopying

and mailing costs, and mediation fees. All of Class Counsel’s expenses were reasonable and

necessary for the successful prosecution of this case. Accordingly, the Court should grant Class

Counsel’s full request for reimbursement of their costs. See Bellifemine v. Sanofi−Aventis U.S. LLC,

2010 WL 3119374, at *7 (S.D.N.Y. Aug. 6, 2010) (“[T]he costs. . . are reasonable, and therefore,

Class Counsel should be reimbursed for these litigation-related expenses.”).


11

VI. THE REQUESTED INCENTIVE AWARDS ARE FAIR AND REASONABLE

Pursuant to the Settlement Agreement, Class Counsel respectfully approval from the Court,

and Defendant does not oppose, an Incentive Award for each of the Class Representative in the

amount of $7,500. Agreement at § 6.02; See Kazerounian Decl. ¶ 77. Incentive awards “compensate

named plaintiffs for the services they provided and the risks they incurred during the course of the

class action litigation.” Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D.

Fla. 2006). “[T]here is ample precedent for awarding incentive compensation to class

representatives at the conclusion of a successful class action.” David v. American Suzuki Motor

Corp., 2010 WL 1628362, at *6 (S.D. Fla. Apr. 15, 2010). Courts have consistently found service

awards to be an efficient and productive way to encourage members of a class to become class

representatives.4 The relevant factors include: (1) the actions the class representatives took to

protect the interests of the class; (2) the degree to which the class benefited from those actions; and

(3) the amount of time and effort the class representatives expended in pursuing the litigation. See,

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

These factors, as applied to this Action, demonstrate the reasonableness of the requested

Incentive Awards to the named Plaintiffs. The Class Representatives provided assistance that

enabled Class Counsel to successfully prosecute the Action including submitting to interviews with

Class Counsel, responding to discovery, reviewing all material filings, including approving the

Agreement.5 Plaintiffs were also prepared to devote additional time for depositions and to be

available for trial if necessary.

Based on the foregoing, the requested incentive awards for the Class Representative

Plaintiffs should by approved by the Court.

4 See, e.g., Stallworth v. Monsanto Co., No. PCA 73-45. 198) U.S. Dist. LEXIS 12858, at *20-21 (N.D. Fla. June 26, 1980) (approving service awards ranging from $10,000 to $20,000 to four named plaintiffs, “each of whom devoted substantial time to the prosecution of th[e] lawsuit”); Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (awarding class representatives $300,000 each, explaining that “the magnitude of the relief the Class Representatives obtained on behalf of the class warrants a substantial incentive award.”); Spicer v. Chicago Bd. Options Exchange, Inc., 844 F. Supp. 1226, 1267-68 (N.D. Ill. 1993) (collecting cases approving service awards ranging from $5,000 to $100,000, and awarding $10,000 to each named plaintiff). 5 See Affidavits of Class Representative Plaintiffs Sheryl Medina, Danny Allen, and John Carter Williams submitted with Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Settlement at Dkt. Nos. 121-8, 121-9, and 121-10, respectively.


12

VII. CONCLUSION

Based on the foregoing, Class Counsel respectfully request that the Court award

(1) $478,500 in attorneys’ fees; (2) $50,072.94 in costs to date; (3) $7,500 to each Class

Representative Plaintiff as an incentive award for his/her efforts in this action for the benefit of the

Settlement Class.

Date: May 22, 2019 Respectfully submitted,

KOMLOSSY LAW, P.A.

By: /s/ Emily C. Komlossy Emily C. Komlossy, Esq. (FBN 7714) [email protected] 4700 Sheridan Street, Suite J Hollywood, FL 33021 Telephone: (954) 842-2021 Facsimile: (954) 416-6223

LAW OFFICES OF RONALD A. MARRON Ronald A. Marron (pro hac vice) [email protected] Alexis M. Wood (pro hac vice) [email protected] Kas L. Gallucci (pro hac vice) [email protected] 651 Arroyo Drive San Diego, CA 92103 Tel: (619) 696-9006 Fax: (619) 564-6665 KAZEROUNI LAW GROUP, APC Abbas Kazerounian (pro hac vice) [email protected] Mona Amini (pro hac vice) [email protected] 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Tel: 800-400-6808 Fax: 800-520-5523 LAW OFFICES OF TODD M. FRIEDMAN, P.C. Todd M. Friedman (pro hac vice) [email protected]


13

21550 Oxnard Street, #780 Woodland Hills, CA 91367 Tel: 877-206-4741 Fax: 866-633-0228 Class Counsel and Attorneys for Plaintiffs


CERTIFICATE OF SERVICE

I hereby certify that on May 22, 2019, I electronically filed the foregoing document with

the Clerk of Court using CM/ECF pursuant to the Local Rules and Order of the Court. I also

certify that the foregoing document is being served this day on all counsel of record identified

below via electronic mail to the email addresses noted below.

Scott Stephen Gallagher [email protected] Richard Dean Rivera [email protected] SMITH, GAMBRELL AND RUSSELL 50 N. Laura St., Ste. 2600 Jacksonville, FL 32202 /s/ Emily C. Komlossy

Emily C. Komlossy


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Defendant.


DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR THE AWARD OF ATTORNEY’S FEES, COSTS, AND

INCENTIVE AWARDS

I, ABBAS KAZEROUNIAN, declare as follows:

1. I am a founding and managing Partner of the law firm Kazerouni Law Group, APC (“KLG”),

counsel of record for Plaintiffs in the above-captioned matter against Defendant Enhanced

Recovery Company, LLC dba ERC (“Defendant”).

2. I am over the age of 18 and fully competent to make this declaration. I have personal

knowledge of the facts set forth in this declaration, and if called as a witness, I would

competently testify to the matters herein from personal knowledge. This declaration is based

upon my personal knowledge, except where expressly noted otherwise.

3. I have been granted permission to practice before this Court pro hac vice in this matter. I am

a member in good standing of the bars of the States of California, Texas, Illinois,

Washington, Colorado, Michigan, District of Columbia, New York, the Ninth Circuit Court

of Appeals, the Eighth Circuit Court of Appeals, and the Supreme Court of the United States.

4. I respectfully submit this declaration in support of the Plaintiffs’ Unopposed Motion for the

Award of Attorney’s Fees, Costs, and Incentive Awards for the named Class Representative

Plaintiffs.

Case 2:15-cv-14342-JEM Document 126-1 Entered on FLSD Docket 05/22/2019 Page 1 of 72

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5. Based on my experience, and for all the reasons detailed herein, I believe the requested

attorneys’ fees, costs, and incentive awards are fair and reasonable.

CASE HISTORY

6. This action was initially commenced on September 3, 2015, in the U.S. District Court for

the Southern District of California and on September 28, 2015 was transferred to the U.S.

District Court for the Southern District of Florida (the “Court”) titled Medina v. Enhanced

Recovery Company, LLC, Case No. 2:15-cv-14342-JEM (the “Litigation”), alleging putative

class claims under the Telephone Consumer Protection Act (“TCPA”) turning on ERC’s

alleged practices of calling individuals without their consent.

7. On October 19, 2015, ERC filed an Answer.

8. The parties engaged in discovery and motion practice until a stay was issued in this case

pending a decision by the Multi-District Litigation Panel as to whether this matter should be

consolidated with two actions pending in the Central District of California and an action in

the Eastern District of California. The Multi-District Litigation Panel denied consolidation.

9. After the stay was lifted, Plaintiffs Sherryl Medina, Danny Allen, and John Carter Williams

filed a First Amended Complaint in this Action. The parties then continued to engage in

further discovery and motion practice.

10. Class Counsel have demonstrated experience and success in litigating TCPA class actions,

and their participation indisputably added value to the representation of this Settlement Class.

Class Counsel devoted substantial time to investigating the claims against Defendant. Class

Counsel also expended resources researching and developing the legal claims at issue.

Substantial time and resources were also dedicated to conducting discovery. Class Counsel

devoted substantial time to reviewing voluminous documents and electronic data produced

by Defendant and prepared for and took the deposition of Defendant’s 30(b)(6)

representative. Class Counsel and Defendant also served multiple sets of written discovery

and participated in several lengthy meet and confer conferences and discovery motions and

engaged in considerable motion practice during this action. In turn, the record in this action

establishes that the Action involved complex and novel challenges, which Class Counsel met

and successfully overcame at every juncture.

11. Plaintiffs took the Fed. R. Civ. P. 30(b)(6) deposition of the representative for ERC on

January 9, 2018.


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12. On April 27, 2018, the parties participated in a full-day mediation with the Hon. Jay C.

Gandhi (Ret.) of JAMS.

13. On May 1, 2018, the parties filed a joint motion for a temporary stay of litigation in this

action while the parties exhausted their mediation efforts.

14. Prosecuting this Action was risky from the outset. Defendant has consistently denied the

allegations raised in the Complaint, denied that class certification is proper for any purpose

other than Settlement, and made clear at the outset that it would vigorously seek to defeat

class certification and defend this case through trial if necessary. The recovery obtained

through the Settlement is substantial and particularly noteworthy given the significant

litigation risks presented in this action and barriers that loomed in the absence of settlement.

Any of these risks could have impeded, or altogether derailed, Class Counsel and the

Settlement Class’ ultimate success in prosecution of the claims in this action. The recovery

achieved by this Settlement must be measured against the fact that any recovery by Plaintiffs

and Settlement Class Members through continued litigation could only have been achieved

if: (i) Plaintiffs were able to establish liability and damages at trial; and (ii) the final

judgment was affirmed on appeal. The Settlement is an extremely fair and reasonable

recovery for the Settlement Class in light of Defendant’s defenses, and the challenging and

unpredictable path of litigation Plaintiff and the certified class would have faced absent the

Settlement.

15. On May 18, 2018, the Court issued an order lifting the stay and reopened the case, directing

the parties on submission of settlement papers.

16. Subsequently, the Parties reduced the agreement into writing after multiple rounds of

negotiations and revisions on the terms as well as soliciting bids for Class Administration.

The parties’ settlement negotiations, along with drafting the formal settlement agreement

and class notice documents, consumed substantial time and resources.

17. The Parties agreed to settle on the terms in the Settlement Agreement as set forth therein, on

behalf of a Settlement Class of approximately 156,679 persons who in the United States

who (1) were called one or more times by ERC, (2) on a Sprint, PayPal or AT&T account

(3) through LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party Connect, (4) on

his or her cellular telephone(s), (5) and that number was designated as a wrong number or

bad number, (6) from August 7, 2014 through December 31, 2017, and (7) whose telephone


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numbers are identified in the Class List. Plaintiffs’ counsel is satisfied the information

provided about the number of persons in the Settlement Class is correct, but is conducting

confirmatory discovery pursuant to § 15.01 of the Settlement Agreement. A true and correct

copy of the final executed Settlement Agreement (“Agreement”) is attached hereto as

Exhibit 1.

18. Pursuant to the Agreement, those persons in the Settlement Class who submit an Approved

Claim will receive a pro rata distribution from the Total Settlement Amount after payment

of administration costs to KCC (which shall not exceed $235,000), Class Counsel’s

attorneys’ fees of up to 33% of the Settlement fund or $478,500, costs of litigation, and

incentive awards of $7,500 to each Class Representative, with approval of the Court.

19. Available Total Settlement Amounts will be apportioned in an equal manner to each Class

Member. The amount of the check shall be calculated by the Claims Administrator on a

pro-rata basis. The Net Settlement Amount shall equal the Settlement Amount minus all

payments of the Class Counsel Award, the class representatives Incentive Awards, and the

Settlement Administrator Expenses. (Settlement Agreement at § 6.01-6.03, 19.03). The Net

Settlement Amount will be distributed among the Settlement Class Members who do not

timely opt out. Each Class Member’s Individual Settlement Payment will be in an equal

amount, made on a pro rata basis to each Settlement Class Members during the Class

Period, as determined from the Class Information provided to the Settlement Administrator

by Defendant. The dollar value of each Individual Settlement Amount shall be determined

by dividing the Net Settlement Amount by the total number of Participating Class Members.

Settlement Agreement at § 5.02.

20. As part of that Agreement, Defendant will make a Payment of $1,450,000 as the settlement

benefits (the “Total Settlement Amount”) for all Approved Claims. Defendant will also pay

all attorneys’ fees and expenses, incentive awards, and costs of notice and claims

administration from the Total Settlement Amount.

21. On August 24, 2018, Plaintiffs filed an unopposed Motion for Preliminary Approval of the

parties’ Class Action Settlement. (Dkt. No. 121).

22. On December 12, 2018, this Court issued an Order granting Preliminary Approval of the

parties’ Class Action Settlement Agreement. (Dkt. No. 124). The Court’s Order approved


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the proposed Notice Plan and Notice to Class Members, appointed Plaintiffs’ Counsel,

including KLG as Class Counsel, and appointed Plaintiffs as Class Representatives. Id.

23. Pursuant to the Agreement given preliminary approval by this Court, the Settlement Class

Members were sent notice by direct mail explaining they are entitled to receive settlement

benefits as they are part the Class and are entitled to a monetary payment, in the form of a

cash distribution. Settlement Agreement at § 9.01.

24. Class Members were required to submit a claim to be part of the Settlement either by phone,

website, or mail. Settlement Agreement at § 10.02-03. Defendant has produced a Class List

that includes the cellular telephone number for each Settlement Class Member at the time

that such call was made and the date of the call pursuant to § 8.02 of the Settlement

Agreement. Using that information, the Claims Administrator obtained the names and

current addresses of the subscribers of the cellular phone numbers and to mail postcard

notice. Id. at § 9.01. Any Postcard Notices that were returned as non-deliverable with a

forwarding address or with an updated address were promptly be re-mailed by the Claims

Administrator. Id. at § 9.02.

25. The Claims Administrator has established and maintained a Settlement Website that (i)

enables Class Members to submit a claim and access and download the Class Notice and

Claim Form, (ii) provides contact information for Class Counsel, (iii) and provides access to

relevant documents, including the Settlement Agreement and Class Notice, the Preliminary

Settlement Approval Order, and a downloadable Claim Form for anyone wanting to print a

hard copy and mail in the Claim Form, the Complaint, a list of frequently asked questions

and answers, and when filed, the Final Settlement Approval Order. Settlement Agreement at

§ 9.03-04. Pursuant to the Agreement, the Class Notice approved by the Court included the

address (URL) of the Settlement Website. In addition, the Claims Administrator has set up a

toll-free telephone number for receiving toll-free calls related to the Settlement. The Claims

Administrator will continue maintain the Settlement Website and toll-free telephone number

until at least 30 days following Final Approval of the Settlement.

26. The Claims Administrator, Kurtzman Carson Consultants, LLC (“KCC”), has informed

Class Counsel that there have been 122,728 Notices mailed out to Settlement Class

Members. Of these, 17,101 were unable to be reached un subsequent re-mailing and re-


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lookup, but Plaintiffs were still able to provide direct notice to 67.3% of the Settlement

Class Members. There have been a total of 4,729 claim forms timely received, and KCC’s

Preliminary review of the submitted Claims confirms 4,078 Approved Claims were

submitted. See Declaration of H. Jacob Hack. at ¶ 10 submitted with Plaintiffs’ Motion for

Final Approval. The strength of the settlement is further evidence by the fact that KCC has

received only one (2) opt-outs, and zero objections to the Settlement.

EXPERIENCE OF ABBAS KAZEROUNIAN

AND KAZEROUNI LAW GROUP, APC

27. Since my admission to the California bar in 2007, I have been engaged exclusively in the

area of consumer rights litigation, primarily in the area of fair debt collections, the defense of

debt collection lawsuits, class action litigation under the Telephone Consumer Protection

Act, California’s invasion of privacy statutes, under California Penal Code § 630, et seq., and

California’s unfair business statutes under Cal. Civ. Code § 17200 et seq. and § 17500 et seq.

28. My firm, Kazerouni Law Group, APC, in which I am a principal, has litigated over 2,000

individual consumer cases and over 500 consumer class actions in the past ten years. These

Class Actions were litigated in both state and federal courts in Arizona, California,

Washington, Ohio, Nevada, New Jersey, New York, Minnesota, Missouri, Tennessee,

Illinois, Texas, and various California State Courts. My firm has five (5) offices located in

Orange County, California; San Luis Obispo, California; Phoenix, Arizona; Las Vegas,

Nevada; and Dallas, Texas.

29. Kazerouni Law Group, APC has extensive experience in consumer class actions and other

complex litigation. My firm has a history of aggressive, successful prosecution of consumer

class actions, specifically under California’s invasion of privacy statutes and Telephone

Consumer Protection Act. Approximately 95% percent of my practice concerns consumer

litigation in general, and approximately 50% percent of my class action practice involves

litigating claims under the TCPA.

30. I have filed and litigated numerous other class actions based on the Telephone Consumer

Protection Act. The following is a non-exhaustive list of other TCPA class actions which I

am or have been personally involved in:

a. Lemieux v. EZ Lube, LLC, et al., 12-CV-01791-JLS-WYG (S.D. Cal.) (Served as co-

lead counsel; finally approved on December 8, 2014);


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b. Malta, et al. v. Wells Fargo Home Mortgage, et al., 10-CV-1290-IEG (BLM) (S.D.

Cal.) (Served as co-lead counsel for a settlement class of borrowers in connection

with residential or automotive loans and violations of the TCPA in attempts to collect

on those accounts; obtained a common settlement fund in the amount of $17,100,000;

final approval granted in 2013);

c. Conner v. JPMorgan Chase Bank, et al., 10-CV-1284 DMS (BGS) (S.D. Cal.)

(finally approved $11,973,558);

d. In Re: Midland Credit Management, Inc., Telephone Consumer Protection Act

Litigation, 11-md-2286-MMA (MDD) (S.D. Cal.) (Counsel for a Plaintiff in the lead

action, prior to the action being recategorized through the multi-district litigation

process; finally approved for $18,000,000);

e. In Re: Portfolio Recovery Associates, LLC Telephone Consumer Protection Act

Litigation, 11-md-02295-JAH (BGS) (S.D. Cal.) (Counsel for a Plaintiff in the lead

action, prior to the action being recategorized through the multi-district litigation

process);

f. Arthur v. SLM Corporation, 10-CV-00198 JLR (W.D. Wash.) (Nationwide settlement

achieving the then-largest monetary settlement in the history of the TCPA concerning

calls to cellular telephone at the time: $24.15 million; final approval granted in 2012);

g. Lo v. Oxnard European Motors, LLC, et al., 11-CV-1009-JLS-MDD (S.D. Cal.)

(Achieving one of the highest class member payouts in a TCPA action of $1,331.25

per claimant; final approval granted in 2012);

h. Sarabi v. Weltman, Weinberg & Reis Co., L.P.A., 10-01777-AJB-NLS (S.D. Cal.)

(Approved as co-lead counsel and worked to obtain a national TCPA class settlement

where claiming class members each received payment in the amount of $70.00 per

claimant; final approval granted in 2013);

i. Barani v. Wells Fargo Bank, N.A., 12-CV-02999-GPC (KSC) (S.D. Cal.) (Co-lead

class counsel in a settlement under the TCPA for the sending of unauthorized text

messages to non-account holders in connection to wire transfers; finally approved on

March 6, 2015 for over $1,000,000);

j. Mills v. HSBC Bank Nevada, N.A., Case No. 12-CV-04010-SI (N.D. Cal.) (Finally

approved for $39,975,000);


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k. Martin v. Wells Fargo Bank, N.A., 12-CV-06030-SI (N.D. Cal.);

l. Heinrichs v. Wells Fargo Bank, N.A., 13-CV-05434-WHA (N.D. Cal.);

m. Newman v. ER Solutions, Inc., 11-CV-0592H (BGS);

n. In Re Jiffy Lube International, Inc., MDL No. 2261 (Finally approved for

$47,000,000.00);

o. Jaber v. NASCAR, 11-CV-1783 DMS (WVG) (S.D. Cal.);

p. Ridley v. Union Bank, N.A., 11-CV-1773 DMS (NLS) (S.D. Cal.);

q. Ryabyshchuk v. Citibank (South Dakota) N.A., et al, 11-CV-1236-IEG (WVG);

r. Sherman v. Kaiser Foundation Health Plan, Inc., 13-CV-0981-JAH (JMA) (S.D.

Cal.) (Settled for $5,350,000 and finally approved on May 12, 2015; served as co-

lead counsel);

s. Rivera v. Nuvell Credit Company LLC, 13-CV-00164-TJH-OP (E.D. Cal.);

t. Karayan v. Gamestop Corp., 3:12-CV-01555-P (N.D. Texas);

u. Foote v. Credit One Bank, N.A. et al., 13-cv-00512-MWF-PLA (C.D. Cal.);

v. Webb v. Healthcare Revenue Recovery Group, 13-cv-00737–RS (N.D. Cal.);

w. Couser v. Comenity Bank, 12-cv-02484-MMA-BGS (S.D. Cal. Oc. 2, 2014) (Finally

approved for $8,475,000 on May 27, 2015 as served as co-lead counsel);

x. Couser v. Apria Healthcare, Inc. et al., 13-cv-00035-JVS-RNB (C.D. Cal. Oct. 27,

2014) (Finally approved on March 9, 2015 and served as co-lead counsel);

y. Rose v. Bank of America Corporation et al., 12-cv-04009-EJD (N.D. Cal.) (Finally

approved for $32,000,000 in 2014);

z. Newman v. AmeriCredit Financial Services, 11-cv-03041-DMS-BLM (S.D. Cal.)

(finally approving TCPA settlement for over $6,500,000 on March 28, 2016);

aa. Fox v. Asset Acceptance, LLC, 14-cv-00734-GW-FFM (C.D. Cal. July 1, 2016)

(finally approved TCPA class action for $1,000,000; $200,000 cash and $800,000

debt relief);

bb. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.) (Class

Certification granted and preliminarily approved for $7,000,000);

cc. Barrett v. Wesley Financial Group, LLC, 13-cv-00554-LAB-KSC (S.D. Cal.) (Class

certification granted);


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dd. Gehrich v. Chase Bank, N.A., 12-cv-5510 (N.D. Cal.) (finally approved for

$34,000,000);

ee. Stemple v. QC Holdings, No. 3:12-cv-01997-BAS-WVG (S.D. Cal.) (finally

approved);

ff. Cross v. Wells Fargo Bank, N.A., No. 1:15-cv-01270-RWS (N.D. Ga.); and,

gg. Markos et al. v. Wells Fargo Bank, N.A., No. 1:15-cv-01156-LMM (N.D. Ga.).

31. Many of the cases listed above, which have settled, have resulted in the creation of combined

common funds and/or distribution to class member in the hundreds of millions of dollars.

The outstanding results mentioned above are a direct result of the diligence and tenacity

shown by both myself and Kazerouni Law Group, APC, in successfully prosecuting complex

class actions.

32. In addition to my class action experience, I have experience in commercial litigation and

large-scale products liability litigation including a $2.5 million dollar settlement in Mei Lu

Hwei, et al v. American Honda Motor Co., Inc., et al. (Case No. BC401211 in Superior Court

of California for County of Los Angeles). I have regularly litigated cases in state and federal

courts, and have reached numerous confidential seven-figure settlements against

internationally known companies.

33. I argued before the Ninth Circuit Court of Appeals in Knutson v. Sirius XM Radio, No. 12-

56120 (9th Cir. 2014), which resulted in an order in favor of my client.

34. I argued before the Ninth Circuit Court of Appeals in Afewerki v. Anaya Law Grp., 868 F.3d

771 (9th Cir. 2017), resulting in a favorable order for my client. I argued before the Ninth

Circuit Court of Appeals again for the same case on May 15, 2019 and the matter has been

taken under submission.

35. I successfully argued before the Ninth Circuit Court of Appeals in Marks v. Crunch San

Diego, LLC, No. 14-56834, 2018 U.S. App. LEXIS 26883 (9th Cir. Sep. 20, 2018), that

resulted in a groundbreaking victory for consumers in TCPA cases.

36. Kazerouni Law Group, APC has extensive experience in other consumer related issues as

well. A brief summary of a non-inclusive list of notable decisions are as follows:

a. Knell, et al. v. FIA Card Services, N.A., 13-CV-01653-AJB-WVG (S.D. Cal.)

(California class action settlement under Penal Code 632 et seq., for claims of


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invasion of privacy. Settlement resulted in a common fund in the amount of

$2,750,000; finally approved in August 15, 2014);

b. Hoffman v. Bank of America Corporation, 12-CV-00539-JAH-DHB (S.D. Cal.)

(California class action settlement under Penal Code 632 et seq., for claims of

invasion of privacy. Settlement resulted in a common fund in the amount of

$2,600,000; finally approved on November 6, 2014 and served as co-lead counsel);

c. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-GPC-WVG

(S.D. Cal.) (TCPA class action where Defendant’s motion for summary judgment was

denied holding that a single call or text message with the use of an ATDS may be

actionable under the TCPA);

d. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-NLS, 2014

U.S. Dist. LEXIS 9146 (S.D. Cal.) (Defendant’s motion to dismiss or in the

alternative to strike the class allegations was denied finding that debt collection calls

were not exempt from coverage under the TCPA);

e. Iniguez v. The CBE Group, Inc., 2013 U.S. Dist. LEXIS 127066 (E.D. Cal.); 13-CV-

00843-JAM-AC (The court denied Defendant’s motion to dismiss and to strike class

allegations holding that the TCPA applies to any call made to a cellular telephone

with an ATDS);

f. Macias v. Water & Power Community Credit Union, BC515936 (Los Angeles

Superior Court) (Class certification granted under the Rosenthal Fair Debt Collection

Practices Act; class action settlement finally approved in 2016); and,

g. Mount v. Wells Fargo Bank, N.A., BC395959 (Sup. Ct. Los Angeles) (finally

approved for $5,600,000).

h. Oxina v. Land’s End, Inc., No. 3:14-cv-02577-MMA-NLS (S.D. Cal. 2014) (finally

approved)

i. Lapuebla v. BirchBox, Inc.; No. 3:15-cv-00498-BEN-BGS (S.D. Cal.) (finally

approved)

j. Medeiros v. HSBC Card Services, Inc. et al., 2017 U.S. LEXIS 178484 (C.D. Cal.

Oct. 23, 2017) (finally approved CIPA class action settlement for $13,000,000);


- 11 -

hh. Zaw v. Nelnet Business Solutions, Inc. et al., No. 13-cv-05788-RS (N.D. Cal.)

(finally approved in 2014 for $1,188,110 in action under Cal. Pen. Code § 630, et

seq.);

ii. Ronquillo-Griffin v. Telus Communications, Inc. et al., 3:17-cv-00129-JM-MLB

(S.D. Cal.);

jj. Foote v. Credit One Bank, LLC, 2:13-cv-08605-MWF-PLA (C.D. Cal.);

kk. Olney v. Job.com, Inc. et al., 13-cv-02004-AWI-SAB (E.D. Cal.);

ll. Bohkle v. U.S. Bank, N.A., 12-cv-09247-RGK-E (C.D. Cal.);

mm. Dake v. Receivables Performance Management, LLC, 5:12-cv-01680-VAP-SP (C.D.

Cal.);

nn. Garcia v. Earthlink, Inc., 3:12-CV-01129-DMS-BLM (S.D. Cal.);

oo. Montegna v. Portfolio Recovery Associates, LLC, 3:12-cv-00764-MMA-BGS (S.D.

Cal.);

pp. Burkhammer v. Allied Interstate, LLC, 2017 Cal. Super. LEXIS 109 (Sup. Ct. San

Luis Obispo) (RFDCPA class action finally approved on October 30, 2017);

qq. Moreno-Peralta v. TRS Recovery Services, Inc., 2017 Cal. Super. LEXIS 548 (Sup.

Ct. San Luis Obispo Oct. 10, 2017) (RFDCPA class action preliminarily approved);

rr. McPolin v. Credit Service of Logan, 16-cv-116 BSJ (D. Utah) (FDCPA class action

with consumers to each receive $1,428.57, debt relief, and tradeline deletion finally

approved on November 9, 2017).

ss. Reid v. I.C. System, Inc., 2017 U.S. Dist. LEXIS 43770 (D. Ariz. March 24, 2017)

(TCPA class actions finally approved in the amount of $3,500,000);

tt. Maxin v. RHG & Company, Inc., 2017 U.S. Dist. LEXIS 27374 (S.D. Cal. February

27, 2017) (finally approved class action settlement for $900,000);

uu. Scheuerman v. Vitamin Shoppe Industries, Inc., BC592773 (Los Angeles Superior

Court) (finally approved class action settlement for up to $638,384);

vv. Giffin v. Universal Protein Supplements, BC613414 (Los Angeles Superior Court)

(finally approved, class received over $210,000);

ww. Hooker v. Sirius XM Radio Inc., 4:13-cv-00003-AWA-LRL (E.D. Va. December 22,

2016) (Served as co-lead counsel in finally approved TCPA class action settlement

with a monetary fund of $35,000,000);


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xx. Caldera v. Am. Med. Collection Agency, 2017 U.S. Dist. LEXIS 99239 (C.D. Cal.

June 27, 2017) (Order certifying nationwide TCPA class action);

yy. Luster v. Wells Fargo Dealer Services, Inc., 15-cv-1058 (TWT) (N.D. Ga.

November 8, 2017) (TCPA class action finally approved in the amount of

$14,834,058.00); and

zz. Couser v. Dish One Satellite, LLC, 5:15-cv-02218-CBM-DTB (C.D. Cal. November

21, 2017) (TCPA class action finally approved for $935,000).

37. I have undergone extensive training in the area of consumer law. The following is a list of

recent training conferences I attended:

a. Four-day National Consumer Law Center Conference; Nashville, TN –2008;

b. Three-day National Consumer Law Center Conference; Portland, OR -2008;

c. Three-day National Consumer Law Center Conference; San Diego, CA - 2009;

d. Three-day National Consumer Law Center Conference; Seattle, WA -2011;

e. National Consumer Law Center Conference in 2013;

f. National Consumer Law Center Conference in 2014;

g. National Consumer Law Center Conference in 2015;

h. National Consumer Law Center Conference in 2016;

i. Three-day CAALA Conference; Las Vegas, NV – 2009;

j. Three-day CAALA Conference; Las Vegas, NV – 2013;

k. Three-day CAALA Conference; Las Vegas, NV – 2015;

l. Three-day CAALA Conference; Las Vegas, NV – 2016;

m. Three-day CAOC Conference – 2014 and 2015;

n. Speaker at ABA National Conference, Business Litigation Section; Trends in

Consumer Litigation; San Francisco, CA – 2013;

o. Speaker at the ABA TCPA National Webinar (Consumer Protection, Privacy &

Information Security, Private Advertising Litigation, and Media & Technology

Committees) – September 2013;

p. Speaker at the 2014 ACA Conference in November 2014;

q. Speaker at ACI Conference in Dallas, TX in September of 2016 concerning The

Borrower's Perspective: Insight From The Plaintiffs' Bar and Consumer Advocates;


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r. Speaker on TCPA panel in September of 2016 at the Annual Consumer Financial

Services Conference;

s. Speaker at the 2016 CAOC Conference in in 2015, 2016, and 2017.

t. Presented at the 2016, 2017, and 2018 CAOC seminar in Palm Springs, CA;

u. Speaker at national webinar on June 7, 2017 for the CAOC, entitled, Understanding

the Fair Debt Collection Practices Act;

v. Speaker at CAOC Lake Tahoe Seminar 2017 on Hot Litigation Topics;

w. Speaker at National Webinar by ABA Consumer Financial Services Committee on

“The D.C. Circuit’s TCPA Decision on the FCC Ruling” on March 22, 2018;

x. Speaker at 2018 Inland Empire CAOC Convention on “Class Action Hot Topics” in

May 2018.

y. Speaker at Mass Torts Made Perfect on Modern Trends in the TCPA in April 2019.

z. Speaker at the CAOC Inland Empire Seminar in May 2019 on the topic of “Dealing

with Overly Ambitious Lien Holders.”

38. I am an adjunct professor at California Western School of Law where I teach a three credit

course in consumer law.

39. As one of the main plaintiff litigators of consumer rights cases in the Central District of

California, I have been requested to and have made regular presentations to community

organizations regarding debt collection laws and consumer rights, including the Telephone

Consumer Protection Act (“TCPA”). These organizations include Whittier Law School,

Iranian American Bar Association, Trinity School of Law and Chapman Law School,

University of California, Irvine, and California Western School of Law.

40. I was the principle anchor on Time Television Broadcasting every Thursday night as an

expert on consumer law generally, and the TCPA specifically, between 2012 and 2013.

41. I am often called upon to give legal analysis on popular television and radio shows such as

Dr. Drew Midday Live and Fox 5.

42. I have been named Rising Star by San Diego Daily Tribune in 2012, and Rising Star in Super

Lawyers Magazine in 2013, 2014, and 2015; and I have been named Super Lawyer in 2016,

2017 and 2018.

43. I lectured in Class Action Trends at the CAOC 2015 Conference in San Francisco.

44. I lectured in Social Media issues at the CAOC 2016 Conference in San Francisco.


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45. I was selected for membership into The National Trial Lawyers: Top 40 Under 40 in 2016.

46. I was a panelist in a webinar, ABA Telephonic Brown Bag re: TCPA, on August 25, 2015.

47. I lectured on the TCPA before the ABA Business Law Section, Consumer Financial Services

Committee in January 2016 at an event in Utah entitled, “Impact of the FCC’s 2015 Rulings

on TCPA Litigation.” I spoke on privacy rights on a panel before the California State Bar

Convention in 2016.

48. In January of 2016, I spoke on the impact of the Federal Communications Comission’s 2015

Declaratory Ruling on TCPA litigation at the ABA National Convention in Salt Lake City,

Utah.

49. On January 12, 2017, I spoke at 22nd National Forum on Residential Mortgage Litigation &

Regulatory Enforcement.

50. An article I wrote entitled, Principles of Litigating Consumer Class Actions, was published in

the February 2015 Edition of the Advocate.

51. In 2016, I wrote an article entitled “Finding a Balance” that was published in the Nutrition

Business Journal, concerning a lawsuit filed under the Racketeer Influenced and Corrupt

Organization Act.

52. In 2016, I wrote an article entitled “The FDCPA: The Forgotten Statute” that was published

in the Daily Journal.

53. In September 2017, I wrote an article entitled “Collateral Damage,” that was published by

Plaintiff Magazine.

54. In September 2017, I was honored to receive the 2017 Distinguished Alumnus of the Year

Award from California Western School of Law, which is presented to alumni who

distinguish themselves in their professional life and who embody high ethical standards and

commitment to community service.

55. I am a member in good standing of the following local and national associations:

a. Consumer Attorneys Association of Los Angeles;

b. The Orange County Bar Association;

c. Twice served as former President of the Orange County Chapter of the Iranian

American Bar Association;

d. Orange County Trial Lawyers Association;

e. National Association of Consumer Advocates;


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f. Consumer Attorneys of California;

g. Federal Bar Association; and

h. Member of the Leading Forum of the American Association of Justice.

i. American Bar Association.

j. Colorado State Bar Association

k. Western Trial Lawyers Association.

56. I have been appointed class counsel in several class actions brought under the Telephone

Consumer Protection Act of 1991, 47 U.S.C. § 227 (TCPA). My practice involves significant

TCPA litigation and I am or have been counsel in significant national TCPA class actions

including, but not limited to, class actions against Bank of America, Chase, Wells Fargo, and

Comenity Bank, to mention a few.

57. In addition to my class action experience, I have experience in commercial litigation and

large-scale products liability litigation including a $2.5 million dollar settlement in Mei Lu

Hwei, et al v. American Honda Motor Co., Inc., et al. (Case No. BC401211 in Superior Court

of California for County of Los Angeles). I have regularly litigated cases in state and federal

courts, and have reached numerous confidential seven-figure settlements against

internationally known companies.





59. Throughout this litigation, I have strived to fairly, responsibly, vigorously and adequately

represent the putative class members in this action. I believe that I have been successful in

that endeavor thus far and shall continue in this vein.

60. I will commit the necessary resources and time to represent the interests of the proposed

class. Kazerouni Law Group, APC will commit multiple lawyers and support staff, as

necessary, to the case. Kazerouni Law Group, APC also has the financial resources to

represent the class.

61. Class Counsel has considered the expense, complexity, and delay associated with continued

litigation. In response, Class Counsel carefully analyzed the settlement in light of the parties’

respective positions and elected that the immediate, certain, and substantial payment and


- 16 -

remedial measures offered by Defendant to resolve this matter are fair, reasonable, and

adequate relief to the Class.

62. Based on my experience with similar class actions and my years of experience litigating

complex consumer class actions, I believe that my hourly billing rate in this case of $705 per

hour is justified.

CONTINGENT NATURE OF ACTION

63. To date, Class Counsel has not received any payment for their services in conducting this

litigation on behalf of Plaintiffs’ and members of the Class, nor have Class Counsel been

reimbursed for their out-of-pocket costs. Pursuant to the terms of the Settlement Agreement

and the Court’s Order Granting Preliminary Approval, Class Counsel collectively seek an

award of attorneys’ fees in the amount of $478,500 and costs in the amount of $50,072.94.

64. Class Counsel’s work in this case has been entirely contingent on successfully litigating the

claims in this action and receiving an award of attorneys’ fees and costs, This action has

been litigated for over four years without any payment of attorneys’ fees or costs. Class

counsel has incurred litigation costs on a contingency basis, carrying the risk that the time

and out-of-pocket costs could be lost if the case were not resolved successfully. Had this

action proceeded to trial, Class Counsel’s risk, attorneys’ fees and costs would have

increased dramatically.

65. Class Counsel’s hourly rates include many factors beyond personal compensation, including

non-billed office personnel, equipment, insurance, research materials, office and other

overhead expenses. Consumer litigation inevitably involves large corporations, which have

the capacity to bring enormous resources to bear that individual consumers are simply unable

to meet on their own. Large companies often vigorously resist settling cases. Thus, if

plaintiffs’ attorneys are not compensated at a rate that allows them to maintain the

technological – as well as intellectual and professional resources – to match corporate

defendants’ exhaustive resources, consumers simply cannot prevail. Few attorneys have the

means and ability to take these cases, and if those that do so are not compensated at a rate

that allows them the chance of prevailing on behalf of consumers, these cases will not be

brought, and the remedial purpose of this legislation will fail.

66. Unfortunately, there are few attorneys who regularly represent plaintiffs in cases involving

consumer rights statutes, such as the Telephone Consumer Protection Act (TCPA) at issue in


- 17 -

this action. This is most likely due to the specialized and complex nature of the statute and

case law and due to the relative financial resources of the respective parties, whereby the

consumer is often forced to “match resources” with the defendant and litigate his or her

rights up to, and sometimes through, trial.

67. Throughout the litigation, Defendant was represented by extremely capable counsel who

litigated this case vigorously and were highly competent adversaries. Unlike counsel for

Defendant, who are regularly paid a fair-market hourly rate, Class Counsel has received no

compensation for their services during over three (3) years of arduous litigation and received

no reimbursement for out-of-pocket costs required to successfully prosecute this action. The

contingent nature of Class Counsel’s representation and the risks of this litigation fully

warrant judicial approval of Class Counsel’s request for an award of attorneys’ fees and

costs.

68. The average consumer does not have funds to litigate this type of case. Therefore, in further

justification of our fees, I note that we take such cases on a contingency fee basis, advance all

litigation costs and do not charge the consumer anything up front. This action has required

my firm, Kazerouni Law Group, APC, and its attorneys to spend time on this litigation that

could have been spent on other matters. At various times during the litigation of this class

action, this lawsuit has consumed my time as well as my firm’s resources. My firm has not

been paid anything for our work on this case since it was filed over four years ago. It is my

opinion that law firms in such a position expect to receive a multiplier in cases such as these

because of the risk taken, the extent to which firms are unable to take on other cases, the

delay in getting paid, and the costs my firm must advance in order to litigate such cases.

KAZEROUNI LAW GROUP, APC’S LODESTAR

69. I respectfully submit that this firm utilized skill, careful and thorough preparation and

investigation through litigation to reach a favorable result for Plaintiffs and the Class. Class

Counsel coordinated their efforts during various phases of this contentious litigation and the

division of work ensured the efficient and non-duplicative litigation of this matter.

Accordingly, after carefully reviewing my firms billing records, I determined that the hours

expended by myself and the attorneys in my firm were necessary and reasonably incurred in

litigating this case to a successful resolution.


- 18 -

70. Kazerouni Law Group, APC has maintained contemporaneous time records since the

commencement of this action. As of the date of this declaration, Kazerouni Law Group,

APC has incurred a total of 586.4 hours and a total lodestar of $286,840.00. My billing rate

is $705.00 and I have personally incurred 170.9 hours of attorney time for this case, resulting

in a lodestar of $120,484.50. In addition, Mona Amini, an associate at Kazerouni Law

Group, has dedicated 304.7 hours of attorney time throughout this litigation at the hourly rate

of $395.00,1 producing a lodestar of $120,356.50. Also, Jason Ibey, an associate at Kazerouni

Law Group, has dedicated 124.4 hours of attorney time throughout this litigation at the

hourly rate of $405.00,2 producing a lodestar of $50,382.00. For ease of reference,

Kazerouni Law Group’s lodestar is summarized as follows:

Attorney Title Rate Hours Lodestar Abbas Kazerounian Partner $705 170.9 $ 120,484.50 Jason A. Ibey Associate $405 124.4 $ 50,382.00 Mona Amini Associate $395 304.7 $ 120,356.50

Total: 568.4 $ 286,840.00 Kazerouni Law Group, APC’s aggregate lodestar includes hours incurred drafting and

reviewing pleadings, preparing for and taking Defendant’s deposition in Florida, preparing

for trial, preparing for and participating in the mediation in Texas with Hon. Jay C. Gandhi

(Ret.) of JAMS which brought this Action to its resolution, reviewing and revising the draft

settlement agreement and related documents, preparing the motion for preliminary approval,

preparing for and participating in court appearances, meetings, and discussions with experts,

Defendant’s counsel and co-counsel, and communications with Settlement Class members

and the Settlement Administrators. This figure includes approximately 25 hours for any

supplemental briefing regarding attorneys’ fees and costs, preparation, travel time and

appearance time for the final approval hearing, and further overseeing the settlement

administration through the date of final approval and beyond.

1 Ms. Amini’s hourly rate was approved in Santana, et al. v. Rady Children’s Hospital, No. 37-2014-00022411-CU-MT-CTL (San Diego Super. Ct., Feb. 8, 2019). 2 Mr. Ibey’s hourly rate was recently approved in Ronquillo, et al v. Transunion Rental Screening Solutions, et al., No. 17-cv-129-JM-BLM, (C.D. Cal., May 9, 2019).


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REASONABLENESS OF HOURLY RATES

71. Kazerouni Law Group, APC’s hourly rates are reasonable in respect to the ranges charged by

comparable law firms in the State of California.3

72. My hourly rate has steadily increased over the course of time, and different rates have been

approved based on the complex or non-complex nature of the litigation. In 2012, the Hon.

Anthony K. Battaglia approved an hourly rate of $450 for me in Sarabi v. Weltman,

Weinberg & Reis Co., L.P.A., Case No. 10-CV-1777-AJB, Dkt. No. 42 (S.D. Cal. 2012). I

was approved for $545 in Hoffman v. Bank of America, N.A., 12-cv-00539-JAH-DHB (S.D.

Cal. Nov. 3, 2014) [Dkt. No. 67]; Zaw v. Nelnet Business Solutions, Inc., 13-cv-05788-RS

(N. D. Cal. Dec. 1, 2014) [Dkt. No. 39]; and Lemieux v. EZ Lube, Inc. et al., 12-cv-01791-

BAS-JLB (S.D. Cal. Dec. 8, 2014) [Dkt. No. 83]. I was also approved for an hourly rate of

$550 in Couser v Apria Healthcare Inc. et al., 13-cv-00035-JVS-RNB (C.D. Cal. March 9,

2015). I was approved for an hourly rate of $595 in an unpublished opinion by the Court of

Appeal of the State of California in William Mount, et al., v. Wells Fargo Bank, N.A., No.

B260585 (Cal. Ct. App., Feb. 10, 2016). In Abdeljalil v. GE Capital Retail Bank, 12-cv-2078

JAH (MDD) (S.D. Cal. Dec. 22, 2016) I was approved for $605 per hour. In Hooker v.

Sirius XM Radio Inc., No. 13-cv-3 AWA (LRL); Maxin v. RHG & Company, Inc. No. 16-2625

JLS (BLM) (S.D. Cal.); and Giffin v. Universal Protein Supplements Co., BC613414 (Los

Angeles Superior Court) I was approved for an hourly rate of $625; and I was approved for

an hourly rate of $675 in Dowlatshahi v. McIlhenny Company, No. 30-2017-00911222-CU-

NP-CXC (Orange County Super. Ct.). I was approved for an hourly rate of $695 in Santana,

et al. v. Rady Children’s Hospital, No. 37-2014-00022411-CU-MT-CTL (San Diego Super.

Ct.) and in Khoury v. Wynn Resorts, Ltd., No. A-18-773073-C (Dist. Nev.). Most recently, I

was approved for an hourly rate of $705 in Ronquillo, et al v. Transunion Rental Screening

Solutions, et al., No. 17-cv-129-JM-BLM, (C.D. Cal., May 9, 2019). Based on the foregoing,

in the present Motion, I am requesting an hourly rate of $705, which I believe is

commensurate with my skill and experience in consumer class action litigation.

73. Class Counsel collectively seek an award of attorneys’ fees in the amount of $478,500 and

incentive awards of $7,500 for each Class Representative Plaintiff, with approval of the

Court. In light of time expended and the successful litigation of this case by Class Counsel,

3 See 2013 National Law Journal Billing Survey attached hereto as Exhibit 2.


- 20 -

the requested attorneys’ fee award of 33% of the Settlement Fund, equivalent to $478,500, is

justified. Class Counsel in this case could readily justify the application of a higher multiplier

to their lodestar given the exceptional result and settlement benefits conferred to the Class

through successful litigation of this action, however, Class Counsel have limited their request

for fees to no more 33% of the Settlement Fund. (Agreement at 6.01). A lodestar cross-check

is not required in this circuit; however, a lodestar cross-check of Class Counsel’s lodestar

further demonstrates that the requested fee award is reasonable under the circumstances.

KAZEROUNI LAW GROUP, APC’S COSTS

74. As of the date of this declaration, my firm has incurred a total of $43,645.13 in litigation

costs and expenses in connection with this litigation for which my firm is seeking

reimbursement. These costs include the $400.00 filing fee for Class Representative Plaintiff

Danny Allen’s Class Action Complaint initially filed in the Central District of California,

deposition and court reporter expenses for the deposition of Defendant’s Rule 30(b)(6)

representative, printing, expert witness fees of $12,045.00, copying, and postage costs, pro

hac vice application fees, expenses related to travel for the deposition of Defendant’s Rule

30(b)(6) Representative and the mediation, and mediation fees of $7,500.00 paid to JAMS

for the parties’ mediation with Hon. Jay C. Gandhi (Ret.). Inherently, it is anticipated that

Class Counsel may incur further costs through final approval of this action and will seek

reimbursement of such costs.

75. The expenses pertaining to this case are reflected in the books and records of Kazerouni Law

Group, APC. These books and records are prepared from expense vouchers, check records

and other documents and are an accurate record of the expenses. All of the expenses listed

above were reasonably incurred in the normal course of business. It is the practice of

Kazerouni Law Group, APC to charge our clients for these categories of expenses.

76. Class Counsel is highly experienced in prosecuting consumer class actions, having litigated

hundreds of class action lawsuits, and are qualified to evaluate the Class claims and to

evaluate the risks and potential outcome of further litigation and the benefits of settlement on

a fully informed basis.

INCENTIVE AWARDS FOR CLASS REPRESENTATIVE PLAINTIFFS

77. Class Counsel also seek an incentive award of $7,500 for each of the Class Representative

Plaintiffs ($22,500 total). Importantly, there is no opposition or objection to the Settlement


- 21 -

and no Settlement Class member has objected to the request for an incentive award of $7,500

to each of the Class Representative Plaintiffs. The Class Representative Plaintiffs spent

significant time and provided invaluable assistance to counsel and the Settlement Class in

this case. The assistance the Class Representative Plaintiffs provided counsel producing

information and documents support their claims, reviewing documents, reviewing discovery

responses and document production, confirming facts and claims asserted in this action,

reviewing the Settlement Agreement, maintaining contact with counsel throughout this

action, and preparing to appear for trial in the event this action had not settled. Accordingly,

an award of $7,500 to each of the Class Representative Plaintiffs for the time and effort they

each spent participating in the litigation should be ordered for their extraordinary

contributions for the benefit of the Settlement Class.

EXHIBITS

78. Attached hereto as Exhibit 1 is a true and correct copy of the final and fully executed

Settlement Agreement.

79. Attached hereto as Exhibit 2 is a true and correct copy of the 2013 National Law Journal

Billing Survey.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. EXECUTED at Costa Mesa, California, this 22nd day of May,

2019.

/s/ Abbas Kazerounian Abbas Kazerounian


EXHIBIT 1


1 of 31

Medina v. Enhanced Recovery Company, LLC (S.D. Fla. Case No. 2:15-cv-14342-JEM)

CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (“Agreement”) is entered into by Plaintiff Sherryl

Medina, Plaintiff Danny Allen and Plaintiff John Carter Williams (collectively, the “Plaintiffs”),

for themselves individually and on behalf of the Settlement Class (as defined below), and by

Defendant Enhanced Recovery Company, LLC (“ERC” or “Defendant”). Plaintiffs and ERC are

referred to collectively in this Agreement as the “Parties.”

RECITALS

1.01. On September 3, 2015, Plaintiff Sherryl Medina filed a putative class action

complaint against ERC in the United States District Court for the Southern District of California

entitled Sherryl Medina, on behalf of herself and all others similarly situated vs. Enhanced

Recovery Company, LLC dba ERC, a Delaware limited liability company, which was assigned

Case No. 3:15-cv-01966-LAB-KSC. The complaint alleges that ERC violated the Telephone

Consumer Protection Act, 47 U.S.C. § 227, et seq. (the "TCPA") by using an automatic telephone

dialing system or an artificial or prerecorded voice to call cellular phones without the prior express

consent of Plaintiff and the putative class members.

1.02. On September 28, 2015, the Honorable Larry Alan Burns transferred the case from

the United States District Court for the Southern District of California to the United States District

Court for the Southern District of Florida, and the case was assigned Case No. 2:15-cv-14342-

JEM (the “Action”).

1.03. On October 9, 2015, ERC filed an Answer to the Complaint.

1.04. On August 28, 2016, Plaintiff Medina filed a First Amended Complaint adding

Plaintiff Danny Allen and Plaintiff John Carter Williams as named Plaintiffs.

1.05. On September 7, 2017, ERC filed an Answer to Plaintiffs’ First Amended

Complaint.

1.06. ERC has denied, and continues to deny, all material allegations of the First

Amended Complaint. ERC specifically denies that it called Plaintiffs or putative class members

without their consent, denies that it violated the TCPA, and denies that Plaintiffs and putative class

members are entitled to any relief from ERC. ERC further contends that the Action would not be

amenable to class certification. Nevertheless, taking into account the uncertainty and risks inherent

in any litigation, ERC has concluded that further defense of the Action would be protracted,


2 of 30 Medina v. Enhanced Recovery Company, LLC (S.D. Fla. Case No. 2:15-cv-14342-JEM)

burdensome, and expensive, and that it is desirable and beneficial to fully and finally settle and

terminate the Action in the manner and upon the terms and conditions set forth in this Agreement,

subject to Court approval.

1.07. This Agreement resulted from good faith, arm's length settlement negotiations over

many months, including a day-long mediation session, before the Hon. Jay C. Gandhi, (Ret.), of

JAMS on April 27, 2018. Prior to that mediation, ERC provided Plaintiffs with extensive

information concerning their claims, including data regarding telephone calls placed to putative

class members. The Parties also participated in direct discussions about a possible resolution of

this litigation, including numerous telephonic meetings. Certain information provided by ERC is

subject to confirmatory discovery by Plaintiffs as a condition of this Agreement.

1.08. Based on their investigation and the negotiations described in this Agreement, Class

Counsel have concluded, taking into account the sharply contested issues involved, the risks,

uncertainty and cost of further prosecution of this litigation, and the substantial benefits to be

received by class members pursuant to this Agreement, that a settlement with ERC on the terms

set forth herein is fair, reasonable, adequate and in the best interests of the Settlement Class

Members.

1.09. Plaintiffs’ Motion for Preliminary Approval will include a request for leave from

the Court to modify the class definition to comport with the definition agreed-upon in the

mediation and will mirror the definition set forth in Section 2.27 below. Assuming the Court grants

the Motion for Final Approval of the Agreement, the Action will be dismissed with prejudice.

1.10. The Parties understand, acknowledge and agree that the execution of this

Agreement constitutes the settlement and compromise of disputed claims. This Agreement is

inadmissible as evidence against any party except to enforce the terms of the Agreement and is not

an admission of wrongdoing or liability on the part of any party to this Agreement. It is the Parties'

desire and intention to effect a full, complete and final settlement and resolution of all existing

disputes and claims as set forth herein.

1.11. The settlement contemplated by this Agreement is subject to preliminary and final

approval by the Court, as set forth herein. This Agreement is intended by the Parties to fully,

finally and forever resolve, discharge and settle the Released Claims, upon and subject to the terms

and conditions hereof.



DEFINITIONS

2.01. “Action” means the Action captioned Sherryl Medina, Danny Allen, John Carter

Williams, on behalf of themselves, and all others similarly situated vs. Enhanced Recovery

Company, LLC dba ERC which was assigned Case No. 2:15-cv-14342.

2.02. “Agreement” means this Settlement Agreement and Release.

2.03. “Approved Claim” means a claim submitted by a Settlement Class Member that is

submitted timely and in accordance with the directions required for submitting a claim pursuant to

Sections 10.02 and 10.03 of the Agreement.

2.04. “CAFA Notice” means the notice required by 28 U.S.C. Section 1715(b).

2.05. “Claim Form” means the document on the Settlement Website that can be

downloaded by a Settlement Class Member if she or he wants to submit a claim by mail.

2.06. “Claims Administrator” shall mean Kurtzman Carson Consultants, LLC (“KCC”).

2.07. “Claims Deadline” means 90 days from mailing of the Postcard Notice.

2.08. “Class Counsel” means Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci of

The Law Offices of Ronald A. Marron, Abbas Kazerounian and Mona Amini of Kazerouni Law

Group, APC, Joshua B. Swigart of Hyde & Swigart, APC, and Todd Friedman of The Law Offices

of Todd M. Friedman, PC.

2.09. “Class List” means the list of cellular phone numbers called in which calls were

placed as identified from records maintained by ERC, consistent with the definition of the

Settlement Class. In order to be a Settlement Class Member, the cellular telephone number of the

claimant must be on the Class List.

2.10. “Class Period” means August 7, 2014 through December 31, 2017, inclusive.

2.11. “Court” means the United States District Court for the Southern District of Florida,

and the U.S. District Judge Jose E. Martinez to which the Action is assigned.

2.12. “ERC” means Enhanced Recovery Company LLC, including any of its divisions.

2.13. “Effective Date” means the first business day after which all of the events and

conditions specified in Section 17.01 have been met and have occurred.

2.14. “Final Approval Hearing” means the hearing held by the Court to determine

whether to finally approve the settlement of this Action as set forth in this Agreement as fair,

reasonable and adequate.



2.15. “Final Judgment” means the Court's order and final judgment affirming its prior

certification of the Settlement Class and providing final approval of the Agreement as fair,

reasonable and adequate, and such other relief as jointly requested by the Parties and granted by

the Court.

2.16. “Funding Date” means the date, which shall be no later than five (5) business days

after the Effective Date, on which ERC shall make the payments of the Settlement Fund due

pursuant to Section 8.04.

2.17. “Notice” means the notices to be provided to Settlement Class Members as set forth

in Section 9, including, without limitation, the Postcard Notice and the Website Notice to be posted

on the Settlement Website, as described in Sections 9.01 through 9.07. The forms of the Postcard

Notice and the Website Notice will comply with notice requirements of Rule 23 of the Federal

Rules of Civil Procedure.

2.18. “Objection Deadline” means ten (10) days after the Claims Deadline.

2.19. “Opt-Out Deadline” means ten (10) days after the Claims Deadline.

2.20. “Person” shall mean, without limitation, any individual and his or her spouse, heirs,

successors, representatives, and assigns.

2.21. “Plaintiffs” means Sherryl Medina, Danny Allen and John Carter Williams, for

purposes of this settlement only.

2.22. “Postcard Notice” means the notice of settlement sent in a postcard format

summarizing the terms of the settlement and advising Settlement Class Members of their options

in submitting a claim, excluding themselves, or objecting to the settlement.

2.23. “Preliminary Approval Order” means the Court's Order entered in connection with

the Preliminary Approval Hearing.

2.24. “Released Claims” means those claims released in Section 16.

2.25. “Released Parties” means Enhanced Recovery Company, LLC and its predecessors,

successors, assigns, parents, subsidiaries, divisions, departments, vendors, clients, principals, and

agents, and any and all past, present, and future officers, directors, employees, stockholders,

successors, attorneys, insurers, reinsurers, claim service managers, and subrogees of any of the

foregoing, relative to the Released Claims. For the avoidance of any doubt, the term Released

Parties includes, without limitation, the persons, entities, creditors and clients on whose behalf

ERC initiated the telephone calls at issue in this Action.



2.26. “Releasing Parties” means Plaintiffs, all Settlement Class Members, and their

respective present or past estates, heirs, assigns, successors, agents, attorneys, executors, and any

other representatives of any of these Persons and entities, regardless of whether that Person

submitted a Claim Form. “Releasing Parties” includes, without limitation, any person who submits

a Claim Form and receives a payment under the Agreement, regardless of whether that Person

otherwise satisfies the requirements of a Settlement Class Member. For the avoidance of any

doubt, Releasing Parties includes, without limitation, the subscriber to, and any customary user of,

the subject telephone number identified in the Class List.

2.27. “Settlement Class” refers to the following: All persons in the United States who (1)

were called one or more times by ERC, (2) on a Sprint, PayPal or AT&T account (3) through

LiveVox Blast, LiveVox Quick Connect or LiveVox Right Party Connect, (4) on his or her cellular

telephone(s), (5) and that number was designated as a wrong number or bad number, (6) from

August 7, 2014 through December 31, 2017, and (7) whose telephone numbers are identified in

the Class List.

Excluded from the Settlement Class are ERC, its parent companies, affiliates or

subsidiaries, or any entities in which such companies have a controlling interest; and any

employees thereof; the judge or magistrate judge to whom the Action is assigned and any member

of those judges' staffs and immediate families, and any persons who timely and validly request

exclusion from the Settlement Class. ERC represents that there are approximately 156,769 persons

in the Settlement Class. This number will be verified through confirmatory discovery.

2.28. “Settlement Class Member” means a Person who falls within the definition of the

Settlement Class as set forth in Section 2.27 above and who has not submitted a valid request for

exclusion.

2.29. “Settlement Costs” means all costs incurred in the litigation by the Plaintiffs, the

Class and their attorneys, including but not limited to attorneys' fees incurred representing the

Plaintiffs and the Class, their costs of suit, cost of litigation, cost of notice and claims

administration, and all other costs incurred in this Action by or on behalf of the Class.

2.30. “Settlement Fund” means the sum of one million four hundred and fifty thousand

dollars ($1,450,000.00) that ERC agrees to pay to settle this Action in full. The Settlement Fund

shall be used for Settlement Costs and all amounts to be paid to Settlement Class Members and

Class Counsel under this Agreement, including any incentive award to the Class Representatives,



and any fee award to Class Counsel. Under no circumstances shall ERC be required to pay any

amount in excess of the $1,450,000.00 Settlement Fund to resolve the Action. The Settlement

Fund shall be maintained in an interest-bearing account if possible, at a bank chosen by the Claims

Administrator which is insured by the Federal Deposit Insurance Corporation and that has total

assets of at least five-hundred million dollars ($500,000,000) and a short-term deposit rating of at

least P-1 (Moody’s) or A-1 (Standard & Poor’s).

2.31. “Settlement Website” means the Internet website operated by the Claims

Administrator as described in Section 9.04.

2.32. “TCPA” means the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.,

and any regulations or rulings promulgated under it.

2.33. “Website Notice” means the long-form of Notice describing the terms of this

Agreement in a question and answer format, which will be made available on the Settlement

Website as described in Section 9.03, informing the Settlement Class Members in detail of their

rights and obligations related to this Settlement, and advise them how to file a claim, to exclude

themselves from the settlement, or to object.

BOTH SIDES RECOMMEND APPROVAL OF THE SETTLEMENT

3.01. ERC’s Position on the Conditional Certification of Settlement Class. ERC disputes

that a class could be properly certified to litigate the claims asserted in this Action. However,

solely for purposes of avoiding the expense and inconvenience of further litigation, ERC does not

oppose and agrees to certification of the Class defined in Section 2.27, for settlement purposes

only, pursuant to Fed. R. Civ. P. 23(b)(3). Preliminary certification of the Class for settlement

purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor

would ERC be precluded from challenging class certification in further proceedings in the Action

or in any other action if the Settlement is not finalized or finally approved. If the Settlement is not

ultimately finally approved by the Court, the certification of the Class will be void, and no doctrine

of waiver, estoppel or preclusion will be asserted in any proceedings involving ERC. No

agreements made by or entered into by ERC in connection with the Agreement may be used by

Plaintiffs, any Person in the Class or any other Person, to establish any of the elements of class

certification in any litigated certification proceedings, whether in this Action or any other judicial

proceeding, or otherwise.

3.02. Plaintiffs’ Belief in the Merits of Case. Plaintiffs believe that the claims asserted



in the Action have merit and that the evidence developed to date supports those claims. This

Agreement shall in no event be construed or deemed to be evidence of or an admission or

concession on the part of Plaintiffs that there is any infirmity in the claims asserted by Plaintiffs,

or that there is any merit whatsoever to any of the contentions and defenses that ERC has asserted.

3.03. Plaintiffs Recognize the Benefits of Settlement. Plaintiffs recognize and

acknowledge the expense and amount of time that would be required to continue to pursue the

Action against ERC, as well as the uncertainty, risk and difficulties of proof inherent in prosecuting

such claims on behalf of the Class. Plaintiffs have concluded that it is desirable that the Action

and any Released Claims be fully and finally settled and released as set forth in this Agreement.

Plaintiffs and Class Counsel believe that this Agreement confers substantial benefits upon the

Class and is in the best interests of individual Settlement Class Members.

CLASS COUNSEL AND CLASS REPRESENTATIVE

4.01. Class Representatives and Class Counsel Appointment. For settlement

purposes, and subject to Court approval, Sherryl Medina, Danny Allen and John Carter Williams

are appointed as the Class Representatives for the Class. The law firms appointed as Class Counsel

for the Settlement Class are as follows: The Law Offices of Ronald A. Marron, Kazerouni Law

Group, APC, Hyde & Swigart, APC, and The Law Offices of Todd Friedman, PC.

SETTLEMENT TERMS AND BENEFITS TO THE SETTLEMENT CLASS

5.01. Total Payment. ERC shall pay $1,450,000.00 to settle the Action and obtain a full

release from the Releasing Parties of all Released Claims. The Settlement Fund established by

ERC will be used to pay Approved Claims and any and all Settlement Costs. Settlement Class

Members will be eligible for a cash payment, the amount of which is dependent upon the number

of Approved Claims.

5.02. Amount Paid per Claim. The amount paid per Approved Claim shall be divided

among the approved claimants on a pro rata basis from the amount remaining in the Settlement

Fund after payment of all Settlement Costs from the Settlement Fund.

5.03. Qualifying for Payment. Settlement Class Members shall be entitled to submit a

claim if their cellular phone number is on the Class List as a phone number that received a

telephone call during the Class Period. Only one claim for each phone number called shall be

permitted.

5.04. Account Changes to Block Automatic Dialing of Cellular Telephone Numbers and



Systemically Code Borrower's Consent. As an additional benefit to all Settlement Class Members,

ERC has developed significant enhancements to its existing policies and procedures, as necessary,

(1) to block identifiable cellular telephone numbers from being contacted via LiveVox Blast,

LiveVox Quick Connect or LiveVox Right Party Connect , and (2) to require that if any person

revokes his or her consent by any commercially reasonable means, that person shall not receive

any further calls from ERC on his or her cellular telephone via an automatic telephone dialing

system and/or an artificial or prerecorded voice. These procedures were developed and

implemented during the Class Period, at least in part, because of this Action.

ATTORNEYS' FEES, COSTS, AND PAYMENT TO CLASS REPRESENTATIVES

6.01. Attorneys’ Fees and Costs. Class Counsel shall move the Court for an award of

attorneys' fees and expenses to be paid from the Settlement Fund. Class Counsel has agreed, with

no consideration from ERC, to limit their request for fees to no more 33% of the Settlement Fund.

Payment of any award of attorneys’ fees and costs shall be made from the Settlement Fund, and

not in addition thereto. Should the Court award less than the amount sought by Class Counsel, the

difference in the amount sought and the amount ultimately awarded pursuant to this Section shall

remain in the Settlement Fund to be distributed to Settlement Class Members with Approved

Claims. Upon appropriate Court order so providing, any attorneys’ fees and costs awarded to

Class Counsel by the Court shall be paid by the Claims Administrator from the Settlement Fund

no later than five (5) business days after the Funding Date.

6.02. Incentive Award. The Class Representatives shall be paid an incentive award for

the time and effort they have personally invested in this Action, upon approval by the Court. ERC

shall not object to such incentive award to be paid to each Plaintiff from the Settlement Fund,

provided the incentive award to each Plaintiff does not exceed $7,500, subject to Court approval.

Within five (5) business days after the Funding Date, the Claims Administrator shall pay to Class

Counsel the amount of incentive payment awarded by the Court, and Class Counsel shall disburse

such funds to Plaintiffs.

6.03 Settlement Independent of Award of Fees, Costs and Incentive Payments. The

payment of Class Counsel’s attorneys’ fees, costs and the incentive payment set forth above in

Sections 6.01 and 6.02 are subject to and dependent upon the Court’s approval of the Agreement

as fair, reasonable, adequate, and in the best interests of Settlement Class Members. However,

this Agreement is not dependent upon the Court’s approval of Plaintiffs’ or Class Counsel’s



requests for such payments or awarding the particular amounts sought by Plaintiffs or Class

Counsel. In the event the Court declines Plaintiffs’ or Class Counsel’s requests for attorneys’ fees

and costs or incentive awards, or awards less than the amounts sought by Plaintiffs or Class

Counsel, this Agreement and Release shall continue to be effective and enforceable by the Parties.

PRELIMINARY APPROVAL

7.01. Order of Preliminary Approval. As soon as practicable after the execution of this

Agreement, Plaintiffs shall move the Court for entry of the Preliminary Approval Order. Pursuant

to the motion for preliminary approval, the Plaintiffs will request that:

(a) the Court conditionally certify the Settlement Class for settlement purposes

only and appoint Plaintiffs as class representatives and Class Counsel as counsel for the Settlement

Class for settlement purposes only;

(b) the Court preliminarily approve the settlement and this Agreement as fair,

adequate, and reasonable, and within the reasonable range of possible final approval;

(c) the Court approve the forms of Notice and find that the notice program set

forth herein constitutes the best notice practicable under the circumstances, and satisfies due

process and Rule 23 of the Federal Rules of Civil Procedure;

(d) the Court set the date and time for the Final Approval Hearing, which may

be continued by the Court from time to time without the necessity of further notice; and,

(e) the Court set the Claims Deadline, the Objection Deadline, and the Opt-Out

Deadline.

ADMINISTRATION AND NOTIFICATION PROCESS

8.01. Third-Party Claims Administrator. The Claims Administrator shall be responsible

for all matters relating to the administration of this settlement, as set forth herein. Those

responsibilities include, but are not limited to, obtaining names and addresses for Settlement Class

Members whose addresses are not provided by ERC, including reverse telephone look up,

providing notice to Settlement Class Members, obtaining new addresses for returned mail, setting

up and maintaining the settlement website and toll-free telephone number, fielding inquiries about

the settlement, processing claims, acting as a liaison between Class Members and the Parties

regarding claims and settlement information, approving claims, rejecting any claim form where



there is evidence of fraud, keeping record of any valid exclusions or objections to the settlement,

directing the mailing of settlement payments to Settlement Class Members, maintaining

reasonably detailed records of exclusion requests and objections, and any other tasks reasonably

required to effectuate the administration of this Agreement. The Claims Administrator will

provide, at minimum, bi-monthly updates on the claims status to counsel for all Parties, and will

respond to the Parties’ questions about the status of the case or other related matters in a timely

manner.

8.02. Class List. To facilitate the notice and claims administration process, ERC and its

counsel will provide to the Claims Administrator and to Class Counsel, in an electronically

searchable and readable format, a Class List that includes the cellular telephone number for each

Settlement Class Member at the time that such call was made and the date of the call. ERC

represents for settlement purposes that there are 156,769 Persons in the Settlement Class

representing that number of unique cellular phone numbers in the Class List. Any personal

information relating to Settlement Class Members provided to the Claims Administrator or Class

Counsel pursuant to this Settlement shall be provided solely for the purpose of providing notice as

provided in this Agreement and allowing Settlement Class Members to recover under this

settlement. Such information shall be kept in strict confidence and subject to the Agreed

Confidentiality Order; shall not be disclosed to any third party other than Plaintiff’s consultant

working with the data; and shall not be used for any other purpose. If the Claims Administrator

obtains any updated contact information from the Settlement Class Members, in the claims process

or otherwise, none of that updated contact information shall be provided to ERC but shall be

maintained solely by the Claims Administrator. However, such information may be provided to

Class Counsel if necessary to facilitate communication between the Settlement Class Member or

claimant about filing claims or other information to assist the Settlement Class Member or

claimant, and to counsel for ERC for the limited purpose of providing additional or supplemental

CAFA Notice as described in Section 9.07.

8.03. Payment of Notice and Claims Administration Costs. All settlement administration

costs, including the Claims Administrator fees, shall be paid directly from the Settlement Fund,

once created. If this Agreement is terminated or fails to become effective as described in Section

17, Plaintiffs and ERC shall be equally responsible for payment to the Claims Administrator of

any claims administration costs necessarily incurred by the Claims Administrator except that, in



the event this Agreement is terminated at the election of either Plaintiffs or ERC, over the objection

of the other, the party electing termination shall be responsible for such costs.

8.04 Distribution of the Settlement Fund. The Claims Administrator shall distribute the

funds in the Settlement Fund in the following order and within the time period set forth with respect

to each such payment:

(a) no later than five (5) business days after the Funding Date, the Claims

Administrator shall pay taxes and tax-related expenses, if any, or, at the

Claims Administrator’s discretion, it shall reserve an amount of the

Settlement Fund sufficient to pay taxes and tax-related expenses as

described in Section 19;

(b) no later than five (5) business days after the Funding Date, the Claims

Administrator shall pay to the Class Representatives any incentive award

ordered by the Court, as described in Section 6.02.;

(c) no later than five (5) business days after the Funding Date, the Claims

Administrator shall pay to Class Counsel any award of attorneys’ fees,

costs, or expenses ordered by the Court, as described in Section 6.01;

(d) no later than twenty (20) days after the Funding Date, the Claims

Administrator shall be paid for any unreimbursed costs of administration;

(e) no later than thirty (30) days after the Funding Date, the Claims

Administrator shall pay the Settlement Awards to Settlement Class

Members who submitted Approved Claims pursuant to Section 10;

(f) no later than 210 days after the Funding Date, to the extent administratively

feasible, the Claims Administrator shall make a supplemental distribution

to Settlement Class Members who submitted Approved Claims pursuant to

Section 10; and

(g) on the final distribution date, which is the earlier of (i) the date as of which

all the checks for Settlement Awards have been cashed; or (ii) 210 days

after the date on which the last check for a Settlement Award was issued,

the Claims Administrator shall report such checks to the relevant states as

unclaimed funds.



NOTICES

9.01. Mailing of Postcard Notice. The Claims Administrator shall send the Postcard

Notice to each Settlement Class Member via first class mail within thirty (30) days after entry of

the Preliminary Approval Order, or as soon as practicable thereafter. If sent after the thirty (30)

day period, the ninety (90) day Claims Period shall remain intact. The Claims Administrator shall

use the Class List to obtain each Settlement Class Member's cellular telephone number at the time

when the subject call was made and will do what it believes is reasonable and necessary to obtain

the names and current addresses of the subscribers of the cellular phone numbers prior to mailing

the notice. If and to the extent deemed necessary by the Claims Administrator, the last known

address of Settlement Class Members will be subject to confirmation or updating as follows: (a)

the Claims Administrator may conduct a reasonable search to locate an updated address for any

Class Member whose settlement Notice is returned as undeliverable; (b) the Claims Administrator

shall update addresses based on any forwarding information received from the United States Post

Office; and (c) the Claims Administrator shall update addresses based on information it receives

and through any requests received from Settlement Class Members.

9.02. Re-Mailing of Returned Postcard Notices. Any Postcard Notices that are returned

as non-deliverable with a forwarding address or with an updated address shall promptly be re-

mailed by the Claims Administrator to such forwarding address.

9.03. Website Notice. In addition to the Postcard Notice, the Claims Administrator shall

post on the website a long form of the Notice in a Question and Answer format which sets forth

the details of the settlement, and the rights of Settlement Class Members to participate in the

Settlement, to exclude themselves, or to object to the settlement.

9.04. Settlement Website. Within 30 days of the entry of the Preliminary Approval

Order, the Claims Administrator shall maintain and administer a dedicated settlement website

containing class information and related documents, along with information necessary to file a

claim. At a minimum, such documents shall include this Agreement and exhibits thereto, if any,

the Notice, a Question & Answer Form Notice, the Preliminary Approval Order, a downloadable

Claim Form which may be printed and mailed to the Claims Administrator, an electronic version

of the Claim Form which may be completed and submitted electronically, the operative Complaint,

and when filed, the application for attorneys’ fees and costs and the Final Judgment.



9.05. Toll Free Telephone Number. Within thirty (30) days after entry of the Preliminary

Approval Order, the Claims Administrator shall set up a toll-free telephone number for submitting

claims and responding to inquiries about the settlement. That telephone number shall be

maintained until the Claims Deadline. After that time, and through the date the Final Judgment is

entered, a recording will advise any caller to the toll-free telephone number that the Claims

Deadline has passed and the details regarding the settlement may be reviewed on the Settlement

Website.

9.06. Publication Notice. The Class Administrator shall cause the publication of the

notice in the print edition of the USA Today on two occasions, both on business days and at least

one week apart, publication to be completed within thirty (30) days after entry of the Preliminary

Approval Order, or as soon as practicable thereafter.

9.07. CAFA Notice. ERC shall be responsible for timely compliance with the Class

Action Fairness Act ("CAFA"), 28 U.S.C. § 1715. ERC shall provide proof of such compliance by

filing a confirming declaration with the Court within 10 court days of completion.

CLAIMS PROCESS

10.01. Potential Claimants. Each Settlement Class Member who does not timely and

validly request exclusion from the Settlement as required in this Agreement shall be entitled to

make a claim. Each Settlement Class Member shall be entitled to make only one claim per cellular

telephone number called, regardless of the number of calls made to that Settlement Class Member's

cellular phone number(s).

10.02. How to Make a Claim. In order to make a claim, a Settlement Class Member must

follow one of the following methods: (a) submit a claim telephonically via the toll-free number;

(b) submit a claim online through the Settlement Website; or (c) submit by first-class mail or

otherwise the completed Claim Form downloaded from the Settlement Website to the Claims

Administrator. All claims must be submitted by the Claims Deadline as set forth in the Postcard

Notice and Website Notice. Any Claim Form postmarked after the Claims Deadline shall be

deemed untimely and an invalid claim.

10.03. How a Claim is Approved. To submit a claim, Settlement Class Members

receiving a Postcard Notice may provide his or her name, a Claim Identification number assigned

to each Postcard Notice, his or her cellular telephone number, and a current address to which the

payment may be sent. If the claimant’s Claim Identification number matches the Claim



Identification number assigned by the Claims Administrator, that claim will be approved, subject

to the limitation that no more than one claim will be paid for each cellular telephone number

belonging to each Settlement Class Member. Alternatively, if the claimant has no Claim

Identification number, but the claimant’s cellular telephone number is confirmed on the Class list,

the claim will be approved. The Claims Administrator shall configure the claims process to accept

multiple claims submitted under a single cellular telephone number. However, the Claims

Administrator shall implement procedures to identify instances in which more than three claims

are submitted under the same cellular phone number and report such instances to the Parties to

determine proper handling. ERC may take reasonable steps to verify that the claimant was called

at the cellular phone number at issue during the Class Period.

A Settlement Class Member who did not receive a Postcard Notice or does not have a

Claim Identification Number available may submit a claim by providing his or her name, mailing

address, and cellular telephone number(s) that she or he believes may have been called by ERC

during the Class Period. A Settlement Class Member may submit more than one cellular phone

number in connection with a claim until all numbers she or he believes may have been called have

been checked against the Class List, limited to no more than six cellular phone numbers in each

online or telephone submission session. If the submission is by a Claim Form that is mailed in, all

such cellular phone numbers believed to have been called may be included in the Claim Form. The

Claims Administrator shall check those submitted cellular phone numbers against the phone

numbers in the Class List, immediately and electronically, if possible, at the time of the inquiry. If

the claimant’s cellular telephone number matches a cellular telephone number in the Class List,

that claim will be approved, subject to the limitation that no more than one claim will be paid to

the same person for each cellular telephone number called. The provision of any telephone

number during the claims process shall not be used as a means to contact said person in an attempt

to collect on any alleged debts owed, and is solely being provided to confirm (or deny) valid

claims.

A Settlement Class Member can submit more than one claim only if that Settlement Class

Member has more than one cellular telephone number on the Class List. No more than one claim

per Settlement Class Member will be permitted for each cellular telephone number on the Class

List. Except as necessary to resolve issues relating to denied claims pursuant to Section 11.01, or

to evaluate requests for exclusion and/or respond to objections, or for the limited purpose of



providing additional or supplemental CAFA Notice as described in Section 9.07, the Claims

Administrator shall not provide to ERC, its counsel or any of its agents any identifying

information, including any updated contact information, obtained from the Settlement Class

Members for purposes of facilitating the Class Notice, Settlement Awards, or claims

administration.

CLAIM REVIEW PROCESS

11.01. Review of Approved or Denied Claims. Each Settlement Class Member who does

not exclude himself or herself from the class and who makes a timely claim shall have their claim

reviewed by the Claims Administrator. The Claims Administrator shall review the claims and

advise the Parties, at a minimum, on a bi-monthly basis of the claims that are approved and denied.

Class Counsel shall be entitled to contest the denial of any claims, first through conferring with

the Claims Administrator, and if they are unable to resolve such issues, they may seek assistance

of the Court to resolve the issues at the earliest possible date, and to attempt to have a resolution

before any fairness hearing. However, if those issues are unresolved at the time of the fairness

hearing, that will not prevent the fairness hearing from going forward, with the issues to be

resolved at a later date but within sixty (60) days of the entry of any order regarding the fairness

hearing, including any order for final approval of the settlement.

11.02. Mailing of Settlement Check. The Claims Administrator shall send Settlement

checks to Settlement Class Members who submitted Approved Claims via U.S. mail no later than

thirty (30) days after the Funding Date. If any settlement checks are returned, the Claims

Administrator shall attempt to obtain a new mailing address for that Settlement Class Member by

taking the steps described in Sections 9.01. If, after a second mailing, the settlement check is again

returned, no further efforts need be taken by the Claims Administrator to resend the check. The

Claims Administrator shall advise Class Counsel and counsel for ERC of the names of the

claimants whose checks are returned by the postal service as soon as practicable. Each settlement

check will be negotiable for one hundred and eighty (180) days after it is issued. Any funds not

paid out as the result of uncashed settlement checks shall, to the extent administratively feasible,

be distributed pro rata to Settlement Class Members who submitted Approved Claims via U.S.

mail no later than two hundred and ten (210) days after the Funding Date. Any funds not paid out

as the result of uncashed settlement checks after the first and second distribution, to the extent

applicable, shall be reported to the relevant states as unclaimed funds by the Claims Administrator.



OPT-OUTS AND OBJECTIONS

12.01. Opting Out of the Settlement. A Settlement Class Member may request to be

excluded from the Settlement Class by sending a complete written request to the Claims

Administrator postmarked on or before the Opt-Out Deadline to be excluded from the Settlement

Class. The complete written request shall include the member’s name, his or her address, the name

of the Action (i.e., Medina v. Enhanced Recovery Company, LLC,), a statement that he or she

wishes to be excluded from the Settlement Class, and either: (1) the Claim Identification Number

on the Postcard Notice, or (2) the cellular telephone number on which he or she received a

telephone call. A request to be excluded that does not include all of the foregoing information,

that is sent to an address other than that designated in the Notice, or that is not postmarked within

the time specified, shall be invalid, and the Person(s) serving such a request shall be deemed to

remain members of the Settlement Class and shall be bound as Settlement Class Members by this

Agreement, if approved. Any member of the Settlement Class who is recognized by the Parties or

the Court as validly excluded from the Settlement Class shall not: (1) be bound by the Final

Judgment; (2) be entitled to relief under this Agreement; (3) gain any rights by virtue of this

Agreement; nor (4) be entitled to object to any aspect of this Agreement. “Mass” or “class”

requests for exclusion shall not be allowed. If more than 250 Persons submit valid requests for

exclusion, ERC has the option of voiding this settlement and proceeding with the litigation, as

provided in Sections 17.02 to 17.05 below.

12.02. Objections. Any Settlement Class Member who intends to object to the fairness of

this settlement must file a written objection with the Court, and provide a copy of the objection to

the Claims Administrator, Class Counsel and counsel for ERC no later than the Objection Deadline

as set forth below:

(a) In the written objection, the Settlement Class Member must state his or her

full name, address, the reasons for his or her objection, and to ensure

membership in the Settlement Class, either: (1) the Claim Identification

Number on the Postcard Notice; or (2) the cellular telephone number(s) on

which he or she received a Telephone Call. Any supporting documents,

evidence, and citations must also be attached to the Objection.

(b) Any Settlement Class Member who objects may appear at the Final

Approval Hearing, either in person or through an attorney hired at the



Settlement Class Member's own expense, to object to the fairness,

reasonableness, or adequacy of this Agreement or the settlement. A

Settlement Class Member or his or her attorney intending to make an

appearance at the Final Approval Hearing: (a) file a notice of appearance

with the Court no later than ten (10) days prior to the Fairness Hearing, or

as the Court may otherwise direct; and (b) serve a copy of such notice of

appearance on all counsel for all Parties. For any attorney representing an

objector, the attorney shall file a declaration listing all objections previously

filed for anyone, the case name, court, and case number, and how much, if

any amount, was paid in connection with the objection. Any Settlement

Class Member who fails to timely file a written objection with the Court

and notice of his or her intent to appear at the Final Approval Hearing in

accordance with the terms of this Section and as detailed in the Notice, and

at the same time provide copies to designated counsel for the Parties, shall

not be permitted to object to this Agreement at the Final Approval Hearing,

shall be foreclosed from seeking any review of this Agreement by appeal or

other means, and shall be deemed to have waived his or her objections and

be forever barred from making any such objections in the Action or any

other action or proceeding.

FINAL APPROVAL AND JUDGMENT ORDER

13.01. No later than fourteen (14) calendar days prior to the Final Approval Hearing, the

Claims Administrator shall file with the Court and serve on counsel for all Parties a declaration

stating that the Notice required by the Agreement has been completed in accordance with the terms

of the Preliminary Approval Order.

13.02. If the Settlement is approved preliminarily by the Court, and all other conditions

precedent to the settlement have been satisfied, no later than fourteen (14) calendar days prior to

Final Approval Hearing:

(a) The Parties shall jointly request, individually or collectively, that the Court

enter a Final Judgment, with Class Counsel filing a memorandum of points

and authorities in support of the motion; and,



(b) Counsel for the Class and ERC may file a memorandum addressing any

objections submitted to the Settlement.

13.03. At the Final Approval Hearing, the Court will consider and determine whether the

provisions of this Agreement should be approved, whether the Agreement should be finally

approved as fair, reasonable, and adequate, whether any objections to the Agreement should be

overruled, whether the fee award and incentive payments to the Class Representative should be

approved, and whether a judgment finally approving the Agreement should be entered.

13.04. This Agreement is subject to and conditioned upon the issuance by the Court of a

Final Judgment which grants final approval of this Agreement and:

(a) finds that the Notice provided satisfies the requirements of due process and

Fed. R. Civ. P. 23(e)(1);

(b) finds that Settlement Class Members have been adequately represented by

the Class Representatives and Class Counsel;

(c) finds that the Agreement is fair, reasonable and adequate to the Settlement

Class, that each Settlement Class Member shall be bound by this

Agreement, including the releases in 16.01, and the covenant not to sue in

Section 16.02, and that this Agreement should be and is approved;

(d) dismisses on the merits and with prejudice all claims of the Settlement Class

Members asserted against ERC in the Action;

(e) permanently enjoins each and every Settlement Class Member from

bringing, joining, prosecuting, or continuing to prosecute any Released

Claims against ERC or the Released Parties; and,

(f) retains jurisdiction of all matters relating to the interpretation,

administration, implementation, effectuation and enforcement of this

Settlement.

FINAL JUDGMENT

14.01 The Judgment entered at the Final Approval Hearing approving the Agreement and

determining the fee award and incentive award shall be deemed final one business day following

the latest of the following events: (i) the date upon which the time expires for filing or noticing

any appeal of the Court’s Final Judgment approving this Agreement; (ii) if there is an appeal or

appeals, other than an appeal or appeals solely with respect to the Fee Award and/or incentive



award, the date of completion, in a manner that finally affirms and leaves in place the Final

Judgment without any material modification, of all proceedings arising out of the appeal or appeals

(including, but not limited to, the expiration of all deadlines for motions for reconsideration or

petitions for review and/or certiorari, all proceedings ordered on remand, and all proceedings

arising out of any subsequent appeal or appeals following decisions on remand); or (iii) the date

of final dismissal of any appeal or the final dismissal of any proceeding on certiorari.

CONFIRMATORY DISCOVERY

15.01. Subject to the Agreed Confidentiality Order, Class Counsel may conduct discovery

to confirm the accuracy of the information provided to them during the course of the litigation and

the Parties’ settlement negotiations. The purpose of that discovery is to confirm (a) the total

number of Settlement Class Members, i.e., cellular telephone numbers to which ERC placed a call

on a Sprint, PayPal or AT&T account, through LiveVox Blast, LiveVox Quick Connect or

LiveVox Right Party Connect, and which numbers were listed as wrong numbers or bad numbers

on the account in which calls were placed, during the Class Period, as identified in the Class List,

(b) how those numbers on the Class List were determined, (c) the process used to determine the

cellular telephone numbers on the Class List, and (d) summary regarding the changes in ERC’s

procedures affecting TCPA compliance as referenced in Paragraph 5.04. This discovery shall all

be subject to the Agreed Confidentiality Order and is to be used solely for purposes of finalizing

this Settlement and, consistent with Section 17 below, may not be used for any other purpose in

the event this Agreement is terminated or is otherwise not fully and finally approved by the Court.

RELEASE OF CLAIMS

16.01. Released Claims. The Releasing Parties hereby release, resolve, relinquish and

discharge each and all of the Released Parties from each of the Released Claims (as defined below).

The Releasing Parties further agree that they will not institute any action or cause of action (in law,

in equity or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent,

which they may have or claim to have, in state or federal court, in arbitration, or with any state,

federal or local government agency or with any administrative or advisory body, arising from or

reasonably related to the Released Claims. The release does not apply to Persons who timely opt-

out of the Settlement.



(a) “Released Claims” means any and all claims, causes of action, suits,

obligations, debts, demands, agreements, promises, liabilities, damages,

losses, controversies, costs, expenses, and attorneys' fees of any nature

whatsoever, whether based on any federal law, state law, common law,

territorial law, foreign law, contract, rule, regulation, any regulatory

promulgation (including, but not limited to, any opinion or declaratory

ruling), common law or equity, whether known or unknown, suspected or

unsuspected, asserted or unasserted, foreseen or unforeseen, actual or

contingent, liquidated or unliquidated, punitive or compensatory, as of the

date of the Final Judgment Order, that arise out of or relate in any way to

the Telephone Calls, including but not limited to any claims relative to the

telephone calls under the TCPA and any relevant regulatory or

administrative promulgations, case law, or Federal Communications

Commission regulations or orders implementing or interpreting the TCPA.

The Parties acknowledge and agree that the Released Claims set forth

herein does not release any claims held by the States or other governmental

entities or any claims for TCPA violations for any other telephone calls

placed by entities other than ERC.

16.02. Covenant Not To Sue. The Releasing Parties agree and covenant not to sue any

Released Party with respect to any of the Released Claims, or otherwise to assist others in doing

so, and agree to be forever barred from doing so, in any court of law or equity, or any other forum. CONDITIONS OF SETTLEMENT, EFFECT OF

DISAPPROVAL, CANCELLATION OR TERMINATION OF AGREEMENT

17.01. The Effective Date of this Agreement shall not occur unless and until each and

every one of the following events occurs, and shall be the date upon which the last (in time) of the

following events occurs:

(a) This Agreement has been signed by the Parties, Class Counsel and ERC’s

Counsel;



(b) The Court has entered an order granting Preliminary Approval of the

Agreement;

(c) The Court has entered Final Judgment finally approving the Settlement

Agreement, following notice to the Settlement Class and a Final Approval

Hearing, as provided in the Federal Rules of Civil Procedure, and has

entered the Final Judgment, or a judgment substantially consistent with this

Agreement;

(d) The Final Judgment has become final, by satisfaction of the conditions set

forth in Section 14.01 above; and

(e) The time provided for termination of this Agreement by any Party has

expired with no party having exercised the option of termination.

17.02 If some or all of the conditions specified in Section 17.01 are not met, or in the

event that this Agreement is not approved by the Court, or the settlement set forth in this

Agreement is terminated or fails to become effective in accordance with its terms, then this

Agreement shall be cancelled and terminated subject to Section 17.03, unless Class Counsel and

ERC’s Counsel mutually agree in writing to proceed with this Agreement. Notwithstanding

anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to

Class Counsel set forth above or the incentive award to the Class Representatives, regardless of

the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be

grounds for termination of the Agreement.

17.03 Either Side May Terminate the Agreement. Plaintiffs and ERC shall each have the

right to unilaterally terminate this Agreement by providing written notice of her, their or its election

to do so ("Termination Notice") to all other Parties hereto within ten (10) calendar days of any of

the following occurrences:

(a) the Court rejects, materially modifies, materially amends or changes, or

declines to preliminarily or finally approve the Agreement;

(b) an appellate court reverses the Final Judgment, and the Agreement is not

reinstated without material change by the Court on remand;

(c) any court incorporates into, or deletes or strikes from, or modifies, amends,

or changes, the Preliminary Approval Order, Final Judgment, or the Agreement in a way that



Plaintiffs or ERC reasonably consider material, unless such modification or amendment is

accepted in writing by all Parties;

(d) the Effective Date does not occur; or

(e) any other ground for termination provided for elsewhere in this Agreement

occurs.

17.04. Termination if Large Number of Opt–Outs. If, at the conclusion of Opt-Out

Deadline, more than 250 Persons have submitted valid requests for exclusion from the Settlement,

ERC shall have, in its sole and absolute discretion, the option to terminate this Agreement within

ten (10) calendar days after the Opt-Out Deadline.

17.05. Revert to Status Quo. If either Plaintiffs or ERC terminate this Agreement as

provided herein, the Agreement shall be of no force and effect and the Parties' rights and defenses

shall be restored, without prejudice, to their respective positions as if this Agreement had never

been executed, any orders entered by the Court in connection with this Agreement shall be vacated,

and this Agreement shall not be used for any purpose whatsoever against any of the Parties.

However, any payments made to the Claims Administrator for services rendered to the date of

termination shall not be refunded.

NO ADMISSION OF LIABILITY

18.01. ERC denies any liability or wrongdoing of any kind associated with the alleged

claims in the operative complaints. ERC has denied and continues to deny each and every material

factual allegation and all claims asserted against them in the Action. Nothing herein shall

constitute an admission by ERC of wrongdoing or liability, or of the truth of any allegations in the

Action. Nothing herein shall constitute an admission by ERC that the Action is properly brought

on a class or representative basis, or that classes may be certified in this Action, other than for

settlement purposes. To this end, the settlement of the Action, the negotiation and execution of

this Agreement, and all acts performed or documents executed pursuant to or in furtherance of the

Settlement: (i) are not and shall not be deemed to be, and may not be used as, an admission or

evidence of any wrongdoing or liability on the part of ERC or of the truth of any of the allegations

in the Action; (ii) are not and shall not be deemed to be, and may not be used as, an admission or

evidence of any fault or omission on the part of ERC in any civil, criminal or administrative

proceeding in any court, arbitration forum, administrative agency or other tribunal; and, (iii) are



not and shall not be deemed to be and may not be used as an admission of the appropriateness of

these or similar claims for class certification.

18.02. Pursuant to Federal Rules of Evidence Rule 408 and any similar provisions under

the laws of other states, neither this Agreement nor any related documents filed or created in

connection with this Agreement shall be admissible in evidence in any proceeding, except as

necessary to approve, interpret or enforce this Agreement.

TAXES 19.01. Qualified Settlement Fund. The Parties agree that the account into which the

Settlement Fund is deposited is intended to be and will at all times constitute a “qualified settlement

fund” within the meaning of Treas. Reg. §1.468B 1

19.02. Claims Administrator is “Administrator”. For the purpose of §1.468B of the Code

and the Treasury regulations thereunder, the approved Claims Administrator shall be designated

as the “administrator” of the Settlement Fund. The Claims Administrator shall cause to be timely

and properly filed all informational and other tax returns necessary or advisable with respect to the

Settlement Fund (including, without limitation, the returns described in Treas. Reg. §1.468B 2(k)).

Such returns on the income earned by the Settlement Fund shall be first used to pay the expenses

of the Settlement Fund, including without limitation any fees or costs of the Claims Administrator,

with any remaining returns to be paid out of the Settlement Fund as provided in Section 13.3

19.03. Expenses Paid from Fund. Any expenses reasonably incurred by the Claims

Administrator in carrying out the duties described in this Agreement, including fees of tax

attorneys and/or accountants, shall be paid by the Claims Administrator from the Settlement Fund

pursuant to its estimates and invoice for services rendered, in accordance with Section 8.04.

Settlement Fund expenses shall be first paid from any available returns on the income of the

Settlement Fund, and then from the corpus of the Settlement Fund as necessary. Expenses must be

submitted to and approved by Class Counsel prior to withdrawal by the Claims Administrator.

19.04. Responsibility for Taxes on Distribution. Any person or entity that receives a

distribution from the Settlement Fund pursuant to Section 8.04 shall be solely responsible for any

taxes or tax-related expenses owed or incurred by that person or entity by reason of that

distribution. Such taxes and tax-related expenses shall not be paid from the Settlement Fund.

19.05. ERC is Not Responsible. Plaintiffs and Class Counsel shall fully bear all the tax

consequences of any and all benefits received by the Settlement Class Members from ERC in



connection with this Agreement. Plaintiffs acknowledge that ERC and its attorneys provided no

tax advice related to this Agreement and that ERC may be required to file certain Form 1099 or

other information reports with the United States Internal Revenue Service. Plaintiffs have been

advised to consult with tax counsel of Plaintiffs’ own choice to seek legal and tax advice regarding

the taxability or non-taxability of consideration provided herein. In no event shall ERC or any of

the other Released Parties have any responsibility or liability for taxes or tax-related expenses

arising in connection with the payment or distribution of the Settlement Fund to Plaintiffs, Class

Counsel or any other person or entity, and the Settlement Fund shall indemnify and hold ERC and

the other Released Parties harmless for all such taxes and tax-related expenses (including, without

limitation, taxes and tax-related expenses payable by reason of any such indemnification).

MISCELLANEOUS

20.01. Entire Agreement. This Agreement and any exhibits set forth the entire agreement

and understanding of the Parties with respect to the matters set forth herein, and supersede all prior

negotiations, agreements, arrangements and undertakings with respect to the matters set forth

herein. No representations, warranties or inducements have been made to any party concerning

this Agreement or its exhibits other than the representations, warranties and covenants contained

and memorialized in such documents.

20.02. Governing Law. This Agreement shall be governed by the laws of the State of

Florida.

20.03. Non-Waiver Of Debts/Obligations Owing By Settlement Class Members. The

Parties understand and agree that this Agreement and any terms herein shall not affect in any regard

any debt or obligation owed by any Plaintiffs, Settlement Class Members, or other Persons to ERC

and/or its clients, principals and their related or affiliated entities. This Agreement does not

operate to waive, extinguish, terminate, reduce or affect any debt or obligation owed by Plaintiffs,

Settlement Class Members, or other Persons and shall not impair or limit any right or cause of

action or right to enforce or otherwise collect any underlying debt or amount owed to ERC and its

clients, principals and their related or affiliated entities.

20.04. Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the

Parties to this Agreement, including the Plaintiffs and all Settlement Class Members, for purposes

of the administration and enforcement of this Agreement and the Final Judgment.



20.05. No Construction Against Drafter. This Agreement was drafted jointly by the

Parties and, in construing and interpreting this Agreement, no provision of this Agreement shall

be construed or interpreted against any Party based upon the contention that this Agreement or a

portion of it was purportedly drafted or prepared by that Party.

20.06. Resolution of Disputes. The Parties shall cooperate in good faith in the

administration of this Settlement. Any unresolved dispute regarding the administration of this

Agreement shall be decided by the Court, or by a mediator upon agreement of the Parties.

20.07. Counterparts. This Agreement may be signed in counterparts and the separate

signature pages executed by the Parties and their counsel may be combined to create a document

binding on all of the Parties and together shall constitute one and the same instrument. Signature

by digital, facsimile, or in PDF format will constitute sufficient execution of this Agreement. A

complete set of original executed counterparts shall be filed with the Court if the Court so requests.

20.08. Time Periods. The time periods and dates described herein are subject to Court

approval and may be modified upon order of the Court or written stipulation of the Parties.

20.09. Authority. Each person executing this Agreement on behalf of any of the Parties

hereto represents that such person has the authority to so execute this Agreement.

20.10. No Oral Modifications. This Agreement may not be amended, modified, altered or

otherwise changed in any manner, except by a writing signed by a duly authorized agent of ERC

and Plaintiff, and approved by the Court.

20.11. Advice of Counsel. The Parties have relied upon the advice and representation of

counsel, selected by them, concerning the claims hereby released. The Parties have read and

understand fully this Agreement and have been fully advised as to the legal effect hereof by counsel

of their own selection and intend to be legally bound by the same.

20.12 Effect of Agreement. Whether the Effective Date occurs or this Agreement is

terminated, neither this Agreement nor the settlement contained herein, nor any act performed or

document executed pursuant to or in furtherance of this Agreement or the settlement:

(a) is, may be deemed, or shall be used, offered or received against the Released

Parties, or each or any of them as an admission, concession or evidence of,

the validity of any Released Claims, the truth of any fact alleged by

Plaintiffs, the deficiency of any defense that has been or could have been

asserted in the Action, the violation of any law or statute, the reasonableness



of the settlement amount or the Fee Award, or of any alleged wrongdoing,

liability, negligence, or fault of the Released Parties, or any of them;

(b) is, may be deemed, or shall be used, offered or received against ERC as, an

admission, concession or evidence of any fault, misrepresentation or

omission with respect to any statement or written document approved or

made by the Released Parties, or any of them;

(c) is, may be deemed, or shall be used, offered or received against Plaintiffs or

the Settlement Class, or each or any of them as an admission, concession or

evidence of, the infirmity or strength of any claims asserted in the Action,

the truth or falsity of any fact alleged by ERC, or the availability or lack of

availability of meritorious defenses to the claims raised in the Action;

(d) is, may be deemed, or shall be used, offered or received against the Released

Parties, or each or any of them as an admission or concession with respect

to any liability, negligence, fault or wrongdoing as against any Released

Parties, in any civil, criminal or administrative proceeding in any court,

administrative agency or other tribunal. However, the settlement, this

Agreement, and any acts performed and/or documents executed in

furtherance of or pursuant to this Agreement and/or settlement may be used

in any proceedings as may be necessary to effectuate the provisions of this

Agreement. Moreover, if this Agreement is approved by the Court, any

party or any of the Released Parties may file this Agreement and/or the Final

Judgment in any action that may be brought against such party or Parties in

order to support a defense or counterclaim based on principles of res

judicata, collateral estoppel, release, good faith settlement, judgment bar or

reduction, or any other theory of claim preclusion or issue preclusion, or

similar defense or counterclaim;

(e) is, may be deemed, or shall be construed against Plaintiffs, or each or any

of them, or against the Released Parties, or each or any of them, as an

admission or concession that the consideration to be given hereunder

represents an amount equal to, less than or greater than that amount that

could have or would have been recovered after trial; and



(f) is, may be deemed, or shall be construed as or received in evidence as an

admission or concession against Plaintiffs and the Settlement Class, or each

and any of them, or against the Released Parties, or each or any of them,

that any of Plaintiff’s claims are with or without merit or that damages

recoverable in the Action would have exceeded or would have been less

than any particular amount.

20.13 No Waiver. The waiver by one Party of any breach of this Agreement by any other

Party shall not be deemed as a waiver of any other prior or subsequent breaches of this Agreement.

20.14 Force of Terms. The breach of one or more provisions of this Agreement by one

party shall not be sufficient to void any other terms of this Agreement, which shall remain in force.

However, the non-breaching party shall retain all of his, her or its rights under applicable law to

obtain a remedy for such breach.

20.15 Exhibits. If there are any exhibits attached to this Agreement, all of the exhibits

are material and integral parts hereof and are fully incorporated herein by reference. The Parties

understand portions of those exhibits may be modified as deemed necessary by the Parties and the

Court, and so long as there is no material change in the terms, the Parties shall not refuse to accept

such modifications.

20.16 Amendment. This Agreement may be amended or modified only by a written

instrument signed by or on behalf of all Parties or their respective successors-in-interest.

20.17 Fees and Costs. Except as otherwise provided herein, each Party shall bear its own

attorneys’ fees and costs incurred in any way related to the Action.

20.18 Warranty. Plaintiffs represent and warrant that they have not assigned any claim

or right or interest relating to any of the Released Claims against the Released Parties to any other

Person or party and that they are fully entitled to release the same. ERC warrants that the person

signing this Agreement on its behalf has full authority to do so.

20.19. Notices. Unless otherwise stated herein, any notice required or provided for under

this Agreement shall be in writing and may be sent by electronic mail, fax or hand delivery, postage

prepaid, as follows:

If to Class Counsel:

Ronald A. Marron Alexis M. Wood



Kas L. Gallucci LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: 619-696-9006 [email protected] [email protected] [email protected] Abbas Kazerounian Mona Amini KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: 800-400-6808 [email protected] [email protected] Joshua B. Swigart HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: 619-233-7770 [email protected] Todd Friedman LAW OFFICES OF TODD FRIEDMAN, PC 21550 Oxnard Street, #780 Woodland Hills, CA 91367 Telephone: 877-206-4741 [email protected]

If to counsel for Defendant Enhanced Recovery Company, LLC

Scott Gallagher Richard Rivera SMITH GAMBRELL & RUSSELL LLP 50 N. Laura Street, Suite 2600 Jacksonville, Florida 32202 Telephone: 904-598-6111 [email protected] [email protected]


APPROVED AS TO FORM:

�� I

Ronald A. Marron LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: 619-696-9006

245 Fischer Avenue, Unit Dl Costa Mesa, CA 92626 Telephone: 800-400-6808

Joshua B. Swigart HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego CA 92108 Telephone: 619-233-7770

Todd Friedman LAW OFFICES OF TODD FRIEDMAN PC 21550 Oxnard Street, #780 Woodland Hills, CA 91367 Telephone: 877-206-4741

Attorneys for Plaintiffs Medina, Allen and Williams, and the Settlement Class

30 of30

Scott S. Gallagher SMITH, GAMBRELL & RUSSELL, LLP 50 N. Laura Street, Suite 2600 Jacksonville, Florida 32202 Telephone: 904-598-6111

For Enhanced Recovery Company, LLC.

Medina v. Enhanced Recovery Company, LLC (S.D. Fla. Case No. 2:15-cv-14342-JEM)


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- 1 -




Defendant.


DECLARATION OF RONALD A. MARRON IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR THE AWARD OF ATTORNEY’S FEES, COSTS, AND

INCENTIVE AWARDS

I, RONALD A. MARRON, declare as follows:

1. I am a founding and managing Partner of the law firm Law Offices of Ronald A. Marron

counsel of record for Plaintiffs in the above-captioned matter against Defendant Enhanced

Recovery Company, LLC dba ERC (“Defendant”). I, along with my colleagues Alexis Wood

and Kas Gallucci, have been appointed Class Counsel in this matter. I am a member in good

standing of the State Bar of California and the United States District Courts for the Northern,

Central, Eastern, and Southern Districts of California and of the United States Court of

Appeals for the Ninth Circuit. I have been admitted to practice pro hac vice in this matter.

2. I am entering this declaration in support of Plaintiffs’ Memorandum of Law in Support of

Motion for Approval of Attorneys’ Fees, Expenses, and Incentive Awards. I make this

Declaration based on personal knowledge and if called to testify, I could and would

competently testify to the matters contained herein.

3. I have practiced civil litigation for over twenty-three (23) years. Approximately twenty-one

(21) years ago, I started my own law firm with an emphasis in consumer fraud. Over the

years, I have acquired extensive experience in class actions and other complex litigation and


- 2 -

have obtained large settlements as lead counsel. I have devoted part of my practice to the

area of the Telephone Consumer Protection Act.

CASE HISTORY

4. For brevity purposes, I incorporate the Case History from the Declaration of Abbas

Kazerounian, and add the following.

5. My firm initially commenced this action on September 3, 2015, in the U.S. District Court

for the Southern District of California and on September 28, 2015 it was transferred to the

U.S. District Court for the Southern District of Florida (the “Court”) titled Medina v.

Enhanced Recovery Company, LLC, Case No. 2:15-cv-14342-JEM (the “Litigation”),

alleging putative class claims under the Telephone Consumer Protection Act (“TCPA”)

turning on ERC’s alleged practices of calling individuals without their consent.

6. Upon transfer of this action, my firm retained the services of Komlossy Law, P.A.,

experienced class action and trial attorneys, to assist in the prosecution of this action, and to

serve as local counsel.

7. Following the denial by the Judicial Panel for Multidistrict Litigation for centralization of

related class actions pending against ERC, counsel for plaintiffs self-organized to proceed

forward for the benefit of the Class. This included division of work, so as not to duplicate

efforts, and the retention of Komlossy Law, P.A. by the two additional plaintiffs.

EXPERIENCE OF LAW OFFICES OF RONALD A. MARRON, HOURS AND

EXPENSES TO DATE

8. For brevity, attached hereto as Exhibit 1 is a true and accurate copy of my firm’s resume. As

shown in Exhibit 1, my firm has extensive experience in prosecuting class actions and other

complex litigation of similar nature, scope, and complexity. Further, my firm has intimate

knowledge of the law in the field of consumer privacy and TCPA litigation. See also

Declaration of Ronald A. Marron in support of Motion for Preliminary Approval, Dkt. No.

121-7.

9. The hours billed in this action by my firm are reasonable, reflect the intensity with which

issues were disputed in this case, and the amount of work necessary for this litigation to

culminate in the successful resolution of injunctive relief on behalf of the Class.

10. My firm has contributed over 630 hours to this litigation, including 525.8 attorney hours and

104.6 staff hours; however, my firm is not including staff hours in this fee petition. My


- 3 -

billing rate is $785, the billing rate for Alexis M. Wood, Senior Associate, is $575, and the

billing rate for Kas L. Gallucci, Senior Associate, is $525.

11. I reviewed my firm’s time records and made my best effort to reduce duplicate billing. In

addition, my firm does not use block billing and maintains contemporaneous time records.

12. The hourly rates identified above are based on the ordinary professional billing rate that we

charge clients, including those that pay for legal services by the hour.

13. To date, my firm has incurred costs of approximately $2,382.38. This includes $625.00 in

filing fees, $225.00 in process service fees, $9.90 in court reporter fees, $862.73 in costs

associated with travel to mediation in Texas, and an additional $659.75 in costs for

processing Defendant’s discovery, printing, postage and calendaring.

14. Attached hereto as Exhibit 2 is a chart prepared by my firm outlining reasonable and

comparable class action attorneys’ hourly rates recently approved.

15. Attached hereto as Exhibit 3 are true and correct copies of portions of the published National

Law Journal (NLJ) 2011 Law Firm Billing Survey; a rate analysis for partners and associates

in the Southern California area, compiled by summarizing the NLJ 2011 Survey only as to

Southern California firms; and a Summary reflecting the market rate increase in Southern

California from 2010 to 2011 for partners and associates created by analyzing the 2010 NLJ

Survey to the 2011 NLJ Survey. 24 of the 57 firms listed have senior partner hourly billing

rates at or above $750, with the highest rates at or above $1,200 per hour. As this evidence

shows, Class Counsel’s requested attorney rates for 2015-2018 fall within the average

prevailing market rates within the community.

16. Attached hereto as Exhibit 4 is a true and correct copy of the 2014 Report on the State of the

Legal Market put out by The Center for the Study of the Legal Profession at the Georgetown

University Law Center and Thomson Reuters Peer Monitor (Peer Monitor Report). The Peer

Monitor report shows that “from the third quarter of 2010 through November 2013 . . . firms

increased their standard rates by 11 percent[,] from an average of $429 per hour to $476 per

hour.” This average rate, see id., support’s Class Counsel’s hourly rates.

17. Courts have recognized that my law firm’s attorney’s hourly rates are reasonable for counsel

with similar experience and expertise within the Southern California area, as noted in the

following examples.


- 4 -

18. On October 31, 2017, the Honorable Thomas R. Allen of the Circuit Court of Cook County,

Illinois, approved the following hourly rates (Ronald Marron at $745, Alexis Wood at $500,

Skye Resendes at $475, Kas Gallucci at $450, William Richards at $440, Beth Goodman at

$440, Erin Minelli at $440, law clerks at $245, and legal assistants/paralegals at $215), in the

case of Thornton v. NCO Financial Systems, Inc., Case No. 16 CH 5780.

19. On November 16, 2015, the Honorable Maxine M. Chesney, Senior District Court Judge for

the Northern District of California, approved the following hourly rates (Ronald Marron at

$745, Alexis Wood at $475, Skye Resendes at $475, Kas Gallucci at $450, William Richards

at $440, Marshall Lurtz at $440, Erin Minelli at $440, law clerks at $245, and legal

assistants/paralegals at $215), in the case of Johnson v. Triple Leaf, Inc., Case No. 3:14-cv-

01570-MMC. The Court found that the fee requested was “reasonable when judged by the

standards in this circuit,” and also that my firm’s attorney, law clerk and staff rates were

“reasonable in light of the complexity of this litigation, the work performed, Class Counsel’s

reputation, experience, competence, and the prevailing billing rates for comparably complex

work by comparably-qualified counsel in the relevant market.” Dkt. 65.

20. On August 6, 2015, the Honorable Kenneth R. Freeman of the Superior Court of California,

County of Los Angeles, approved the following hourly rates for Class Counsel: Ronald

Marron at $745, Skye Resendes at $475, Alexis Wood at $475, Kas Gallucci at $450,

William Richards at $440, Marshall Lurtz at $440, Erin Minelli at $440, and law clerks at

$290 in the case of Perry v. Truong Giang Corp., No. BC58568.

21. On August 7, 2015, the Honorable Brendan Linehan Shannon of the United States

Bankruptcy Court for the District of Delaware approved the following hourly rates for Class

Counsel: Ronald Marron at $745, Skye Resendes at $475, Alexis Wood at $475, Kas

Gallucci at $450, William Richards at $440, Marshall Lurtz at $440, Beth Goodman at $440,

Erin Minelli at $440, and law clerks at $290 in the case of In re: LEAF123, INC. (f/k/a

NATROL, INC.), et al., No. 14-11446 (BLS).

22. On July 29, 2014, the Honorable Richard Seeborg of the Northern District of California

approved the following hourly rates for Class Counsel: Ronald Marron at $715, Skye

Resendes at $440, Kas Gallucci at $400, and law clerks at $290 in the case of In re Quaker

Oats Litig., No. 5:10-cv-00502-RS (N.D. Cal.), Dkt. No. 221.


- 5 -

23. On March 13, 2014, the Honorable Gonzalo P. Curiel of the Southern District of California

approved my hourly rate of $715 per hour; Ms. Resendes’ rate of $440 per hour; Ms. Wood’s

rate of $425 per hour; Ms. Minelli and Ms. Gallucci’s rates of $400 per hour; Ms. Danielle

Eisner’s post-Bar law clerk rate of $290 per hour; and $215 per hour for legal assistants in

Mason v. Heel, Inc., No. 3:12-cv-3056-GPC-KSC, 2014 WL 1664271 (S.D. Cal. Mar. 13,

2014).

24. On October 31, 2013, the Honorable Michael M. Anello of the Southern District of

California awarded me fees of $680 per hour, Ms. Resendes fees of $400 per hour, Ms.

Wood fees of $385 per hour, Ms. Minelli fees of $385 per hour, and Ms. Gallucci fees of

$385 per hour in a homeopathic drug consumer class action case; and also approved $280 per

hour for patent agent/post-Bar law clerk Danielle Eisner; $245 per hour for regular law

clerks; and $215 hourly rates for support staff such as paralegals. See also Nigh v.

Humphreys Pharmacal Incorporated, 3:12-cv-02714-MMA-DHB, 2013 WL 5995382 (S.D.

Cal. Oct. 23, 2013).

25. On March 13, 2013, the Honorable David O. Carter of the Central District of California

awarded me fees of $680 per hour, Ms. Resendes fees of $400 per hour, and former

associate, Maggie Realin, fees of $375 per hour in a dietary supplement consumer fraud class

action case; and also approved $245 per hour for law clerks and $215 hourly rates for support

staff such as paralegals. Bruno v. Quten Research Inst., LLC, No. 8:11-cv-00173-DOC-E,

2013 WL 990495, at *4-5 (C.D. Cal. Mar. 13, 2013) (“Class Counsel, . . . the Law Offices of

Ronald A. Marron displayed competence and diligence in the prosecution of this action, and

their requested rates are approved as fair and reasonable.”); see also id. at *4 (“The Court

notes that, in addition to the monetary relief obtained by Class Counsel for class plaintiffs,

there is a high value to the injunctive relief obtained in this case. New labeling practices

affecting hundreds of thousands of bottles per year, over ten years, bring a benefit to class

consumers, the marketplace, and competitors who do not mislabel their products.”).

26. On October 31, 2012, the Honorable John A. Houston of the Southern District of California

awarded me fees of $650 per hour and Ms. Resendes fees of $385 per hour in a homeopathic

drug consumer fraud class action case. Gallucci, 2012 WL 5359485, at *9 (S.D. Cal. Oct. 31,

2012) (“The Court finds the [foregoing] hourly billing rates reasonable in light of the

complexity of this litigation, the work performed, Class Counsels' reputation, experience,


- 6 -

competence, and the prevailing billing rates for comparably complex work by comparably-

qualified counsel in the relevant market.”).

27. On August 21, 2012, the Honorable Thomas J. Whelan awarded me fees of $650 per hour,

Ms. Resendes at $385 per hour and Ms. Realin at $375 per hour, in the consumer dietary

supplement class action of Burton v. Ganeden, No. 11-cv-1471 W (NLS), Dkt. Nos. 52, 48,

45.

28. On July 9, 2012, the Honorable Marilyn L. Huff awarded me fees of $650 per hour, and

approved the rates of my associate attorneys, Ms. Resendes at $385 per hour, and former

associate, Maggie Realin, at $375 per hour in the consumer food class action of In re

Fererro, Case No. 3:11-cv-00205 H (KSC) (S.D. Cal.), Dkt. No. 127. Judge Huff noted that

the fees requested were “appropriate given the contingent nature of the case and the excellent

results obtained for the Class, and because no enhancement or multiplier was sought above

the actual amount of Class Counsel's lodestar. The Court concludes the billing rates used by

Class Counsel to be justified by prior awards in similar litigation and the evidence presented

with their motion showing these rates are in line with prevailing rates in this District.”

29. In March 2011, the Honorable Janis L. Sammartino awarded me fees based on a discounted

hourly rate of $595. Iorio, 2011 U.S. Dist. LEXIS 21824, at *31 (S.D. Cal. Mar. 3, 2011).

Despite being of similar seniority and experience, at the request of and in deference to my

co-counsel, I reduced my requested rate to $595.

30. Our firm’s practice is to keep contemporaneous records for each timekeeper and to regularly

record time records in the normal course of business; and we kept time records in this case

consistent with that practice. Moreover, our firm’s practice is to bill in 6-minute (tenth-of-an-

hour) increments. The firm’s billing records are voluminous but shall be provided for in

camera review, if the Court deems it necessary.

31. My firm’s retainer agreement with Ms. Medina provides for a contingency fee of one-third of

the total fund.

32. My firm is fully committed to prosecuting this action against Defendant to achieve a

successful outcome for the proposed Settlement Class and has the financial means to do so.

33. Throughout this litigation, I have strived to fairly, responsibly, vigorously and adequately

represent the putative class members in this action. I believe that I have been successful in

that endeavor thus far and shall continue in this vein.


- 7 -

INCENTIVE AWARDS FOR CLASS REPRESENTATIVE PLAINTIFFS

34. Ms. Medina specifically retained my firm to prosecute her TCPA claims against ERC. Ms.

Medina has worked with my firm and co-counsel prosecuting this action for nearly four years

and through every stage of litigation, from assisting with the pre-suit investigation to

reviewing the complaint, participating in the discovery process, remaining involved through

the temproary stays, motion practice, and engaging in the settlement and approval process.

35. Class Counsel also seek an incentive award of $7,500 for each of the Class Representative

Plaintiffs ($22,500 total). Importantly, there is no opposition or objection to the Settlement

and no Settlement Class member has objected to the request for an incentive award of $7,500

to each of the Class Representative Plaintiffs. The Class Representative Plaintiffs spent

significant time and provided invaluable assistance to counsel and the Settlement Class in

this case. The assistance the Class Representative Plaintiffs provided counsel producing

information and documents support their claims, reviewing documents, reviewing discovery

responses and document production, confirming facts and claims asserted in this action,

reviewing the Settlement Agreement, maintaining contact with counsel throughout this

action, and preparing to appear for trial in the event this action had not settled. Accordingly,

an award of $7,500 to each of the Class Representative Plaintiffs for the time and effort they

each spent participating in the litigation should be ordered for their extraordinary

contributions for the benefit of the Settlement Class.


foregoing is true and correct. EXECUTED at San Diego, California, this 22nd day of May, 2019.

/s/ Ronald A. Marron Ronald A. Marron


EXHIBIT 1


1

LAW OFFICES OF RONALD A. MARRON, APLC 651 Arroyo Drive

San Diego ▪ CA ▪ 92103 Tel.: (619) 696-9006 Fax: (619) 564-6665

Firm Resume

FIRM OVERVIEW

The Law Offices of Ronald A. Marron is a recognized class action and complex litigation firm based out of San Diego, California, representing clients across the nation. Founded in 1996 with an emphasis in consumer and securities fraud, the firm has expanded its practice to include complex cases such as Ponzi schemes and shareholder derivative suits. The firm has skillfully litigated hundreds of lawsuits and arbitrations against investment advisors and stockbrokers, such as Morgan Stanley, LPL Financial, Merrill Lynch, Banc of America Securities, and Citigroup, who placed clients into unsuitable investments, failed to diversify, and who violated the Securities Act of 1933 and/or 1934. Aptly and competently prepared to represent its clients, the firm has taken on cases against the likes of Shell Oil, Citigroup, Wells Fargo, Union Bank of California, American Express Advisors, Morgan Stanley and Merrill Lynch. Since 2004, the firm has devoted most of its practice to the area of false and misleading labeling of Consumer Products and food, drug and over-the-counter products, as well as seeking to protect consumers from unauthorized and unsolicited telephone calls, SMS or text messages to cellular phones from corporations under the Telephone Consumer Protection Act. The firm employs five attorneys, whose qualifications are discussed in brief below.

THE MARRON FIRM’S ATTORNEYS:

Ronald A. Marron, Founder As the founder of the Law Offices of Ronald A. Marron, APLC, Mr. Marron has been practicing law for 22 years. He was a member of the United States Marine Corps from 1984 to 1990 (Active Duty 1984-1988, Reserves 1988-1990) and thereafter received a B.S. in Finance from the University of Southern California in 1991. While attending Southwestern University School of Law (1992-1994), he interned at the California Department of Corporations with emphasis in consumer complaints and fraud investigations. Mr. Marron has extensive experience in class actions and other complex litigation and has obtained hundreds of millions of dollars on behalf of consumers as lead counsel. Mr. Marron has represented plaintiffs victimized in Ponzi schemes, shareholder derivative suits, and securities fraud cases. Mr. Marron has assisted two United States Senate Subcommittees and their staff in investigations of financial fraud, plus the Senate Subcommittee on Aging relating to annuity sales practices by agents using proceeds from reverse mortgages. Mr. Marron's clients have testified before the United States Senate Subcommittee on Investigations relating to abusive sales practices alleged in a complaint he filed against All-Tech Investment Group. The hearings resulted in federal legislation that: (a) raised the minimum capital requirements, and (b) required written risk disclosure signed by consumer. The civil action resulted in return of client funds and attorneys’ fees pursuant to the private attorney general statute and/or Consumers Legal Remedies Act. Mr. Marron conducted the legal research


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and co-wrote the brief that resulted in the largest punitive damages award (500%) in NASD history for aggrieved investors against Dean Witter Reynolds in securities arbitration. Mr. Marron's opinion on deferred annuity sales practices targeting the elderly has often been sought by major financial news organizations and publications such as Forbes, the Wall Street Journal, the Kiplinger's Retirement Report, CNN, and FOX News affiliates. In addition, he has devoted significant energy and time educating seniors and senior citizen service providers, legislators, and various non-profits (including Elder Law & Advocacy) about deferred annuity sales practices targeting the elderly. Mr. Marron had numerous speaking engagements at FAST (Fiduciary Abuse Specialist Team), which is an organization devoted to the detection of, prevention, and prosecution of elder financial abuse; Adult Protective Services; and Elder Law & Advocacy, a non-profit dedicated to assisting seniors who have been the victims of financial fraud. He has litigated hundreds of lawsuits and arbitrations against major corporations, such as Shell Oil, Citigroup, Wells Fargo, Morgan Stanley, and Merrill Lynch. In recent years, Mr. Marron has devoted almost all of his practice to the area of false and misleading labeling of food, dietary supplements, and over-the-counter products. He is a member in good standing of the State Bar of California; the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States District Court for the Eastern District of Michigan; the United States District Court for the Eastern and Western Districts of Wisconsin; the United States District Court of Colorado; the United States Court of Appeals for the Ninth Circuit; and the Supreme Court of the United States. Alexis M. Wood, Senior Associate Ms. Wood graduated cum laude from California Western School of Law in 2009, where she was the recipient of the Dean’s Merit Scholarship for Ethnic & Cultural Diversity and also Creative Problem Solving Scholarships. In addition, during law school, Ms. Wood was the President of the Elder, Child, and Family Law Society, and participated in the study abroad program on international and comparative human rights law in Galway, Ireland. Ms. Wood interned for the Alternate Public Defender during law school, and also held a judicial externship with the San Diego Superior Court. Upon graduation, Ms. Wood obtained her Nevada Bar license and worked at the law firm Alverson Taylor Mortensen & Sanders in Las Vegas, Nevada where she specialized in medical malpractice. Ms. Wood then obtained her license to practice law in California in 2010 and worked at the bankruptcy firm Pite Duncan, LLP in San Diego, California, in which she represented financial institutions in bankruptcy proceedings. She additionally worked for the national law firm Gordon & Rees, LLP as an associate attorney in the professional liability defense and tort & product liability practice groups. Ms. Wood was also selected to the 2015 and 2016 California Super Lawyers Rising Star list (general category)—a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. No more than 2.5% of the lawyers in the state were selected for the Rising Stars list. Ms. Wood joined the Law Office of Ronald Marron in September of 2012 and has dedicated her practice to consumer advocacy. Ms. Wood is also a foster youth advocate with Voices for Children. She is a member in good standing of the State Bar of California; the State Bar of Nevada; the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States District Court of Nevada; the United States District Court for the Eastern and Western Districts of Wisconsin; the United States District Court of Colorado; and the United States Court of Appeals for the Ninth Circuit. Kas L. Gallucci, Senior Associate Ms. Gallucci graduated cum laude from California Western School of Law in 2012, where she ranked


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in the top 12% of her graduating class and was listed on the Dean’s Honor List for four terms. During law school, Ms. Gallucci received the highest grade in her Legal Skills and Advanced Legal Research classes. She also participated in the Capitals of Europe Summer Study Abroad Program, where the Honorable Samuel A. Alito, Jr. was a Distinguished Guest Jurist. Ms. Gallucci has worked for the firm since 2009 and has a number of years’ experience in consumer fraud cases and is currently prosecuting violations of the Telephone Consumer Protection Act. Ms. Gallucci also regularly assists with the firm’s food, drug, and cosmetic cases. She is a member in good standing of the State Bar of California; the United States District Courts for the Central, Northern, and Southern Districts of California; the United States District Court for the Eastern District of Michigan; the United States District Court for the Eastern and Western Districtsalle of Wisconsin; the United States District Court for New Mexico; the United States District Court of Colorado; and the United States Court of Appeals for the Ninth Circuit. Michael Houchin, Associate Mr. Houchin has been with the Law Offices of Ronald A. Marron since 2011. Prior to passing the California bar exam, Mr. Houchin worked as a law clerk for the firm while he attended law school courses in the evenings at the Thomas Jefferson School of Law. During law school, Mr. Houchin received four Witkin Awards for the highest grade achieved in his Legal Writing, Constitutional Law, American Indian Law, and California Civil Procedure courses. He also served as an editor on the Thomas Jefferson Law Review and was a member of an editing team that prepared a student Note for compliance with publishable quality standards. See I. Suruelo, Harmonizing Section 14(B) with The Policy Goals of the NLRA on the Heels of Michigan's Enactment of Right-To-Work Laws, 36 T. JEFFERSON L. REV. 427 (2014). Mr. Houchin graduated magna cum laude in May of 2015 and ranked in the top 5% of his graduating class. Through his work at the Law Offices of Ronald A. Marron, APLC, Mr. Houchin has gained substantial familiarity with multi-district litigation proceedings, solutions for e-discovery management, and false advertising investigations. He is a member in good standing of the State Bar of California; and the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States Court of Appeals for the Ninth Circuit; and the Supreme Court of the United States. Lilach Halperin, Associate Ms. Halperin graduated cum laude from the University of San Diego School of Law in 2018. During law school, Ms. Halperin held a judicial externship with the San Diego Superior Court and volunteered for numerous pro bono clinics, including the USD Entrepreneurship Clinic, the USD State Sales and Use Tax Clinic, and the San Diego Clean Slate Clinic. In addition, Ms. Halperin was the Chair of the USD Pro Bono Legal Advocates Consumer Affairs Clinic, where she worked with the Legal Aid Society of San Diego to assist indigent clients with lawsuits in consumer protection law. In her third year of law school, Ms. Halperin was hired as a law clerk for the Law Offices of Ronald A. Marron and assisted in consumer fraud cases for the firm, including the areas of false and misleading labeling of consumer products. Ms. Halperin recently passed the California Bar and will continue working for the Marron firm as an Associate Attorney. She is a member of good standing of the State Bar of California; and the United States District Courts for the Southern, Northern and Central Districts of California. Support Staff The Marron Firm also employs a number of knowledgeable and experienced support staff, including paralegals and legal assistants.


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EXAMPLES OF MARRON FIRM’S SUCCESSES ON BEHALF OF CONSUMERS Busch v. Bluestem Brands, Inc., No. 16-cv-0644(WMW/HB) ( On May 3, 2019, the Honorable Judge Wilhelmina M. Wright granted preliminary approval of a nationwide TCPA class action settlement and appointed the Law Offices of Ronald A. Marron as co-lead class counsel. A final approval hearing is scheduled for October 8, 2019. Littlejohn v. Ferrara Cando Company, No. 18-cv-0658-AJB-WVG On February 28, 2019, the Honorable Anthony J. Battaglia granted preliminary approval of a nationwide CLRA class action settlement and appointed the Law Offices of Ronald A. Marron as class counsel. A final approval hearing is scheduled for May 31, 2019. Rwomwijhu v. SMX, LLC, No. BC634518 (L.A. Supr. Ct.) On January 11, 2019, the Honorable Carolyn B. Kuhl granted final approval of case brought pursuant to under California’s Private Attorneys General Act where the Law Offices of Ronald A. Marron served as co-lead class counsel. Jackson v. Lang Pharma Nutrition, Inc., No. 37-2017-00028196-CU-BC-CTL (S.D. Supr. Ct.) On December 20, 2018, the Honorable Joel R. Wohlfeil of the California Superior Court granted final approval to a nationwide labeling case settlement involving Co-q10 dietary supplements where the Law Offices of Ronald A. Marron served as class counsel. The settlement created a fund in the amount of $1,306,000 for which class members could elect to obtain cash or product vouchers. Medina v. Enhanced Recovery Company, LLC, No. 15-CV-14342-MARTINEZ-MAYNARD (S.D. Fla.) On December 12, 2018, the Honorable Judge Jose E. Martinez granted preliminary approval of a nationwide TCPA class action settlement and appointed the Law Offices of Ronald A. Marron as co-lead class counsel. A final approval hearing is scheduled for June 19, 2019. Simms v. ExactTarget, LLC, No. 1-14-cv-00737-WTL-DKL (S.D. Ind.) On October 19, 2018, the Honorable William T. Lawrence granted final approval of a nationwide TCPA class action settlement where the Law Offices of Ronald A. Marron served as class counsel. The settlement created a $6.25 million common fund. Mancini v. The Western and Southern Life Insurance Company, et al., No. 16-cv-2830-LAB (WVG) (S.D. Cal) On September 18, 2018, the Honorable Larry Alan Burns granted final approval of settlement in the amount of $477,500 to resolve claims under California’s Private Attorneys General Act. Gonzales v. Starside Security & Investigation, No. 37-2015-00036423-CU-OE-CTL (S.D. Supr. Ct.)


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On September 7, 2018, the Honorable Gregory W. Pollack granted final approval of a wage and hour class action settlement and where the Law Offices of Ronald A. Marron served as class counsel. Mollicone v. Universal Handicraft, No. 17-21464-Civ-Scola (S.D. Fla.) On August 10, 2018, the Honorable Robert N. Scola, Jr. granted final approval of class action settlement regarding false advertising claims of Adore cosmetics products marketed as containing a plant stem cell formula where in which the Law Offices of Ronald A. Marron served as class counsel. In his Preliminary Approval Order, Judge Scola stated that the Marron Firm is “experienced and competent in the prosecution of complex class action litigation.” (Dkt. No. 120). Mason v. M3 Financial Services, Inc., No. 15-cv-4194 (N.D. Ill.) On June 29, 2018, the Honorable Andrea R. Wood granted final approval of a nationwide TCPA class action settlement in the amount of $600,000 in which the Law Offices of Ronald A. Marron served as co-lead class counsel. Lucero v. Tommie Copper, Inc., No. 15 Civ. 3183 (AT) (S.D. N.Y.) On May 4, 2018, the Honorable Analisa Torres granted final approval of a false advertising class settlement in the amount $700,000. This case involves allegations of false and deceptive advertising and endorser liability for copper fabric compression clothing. On January 4, 2016, the Honorable Analisa Torres appointed the Marron firm as Interim Lead Class Counsel over the opposition and challenge of other plaintiffs’ counsel, noting that the Marron firm’s “detailed” complaint was “more specifically pleaded, . . . assert[ing] a more comprehensive set of theories . . . [and was] more factually developed.” Potzner v. Tommie Copper Inc., No. 15 CIV. 3183 (AT), 2016 WL 304746, at *1 (S.D.N.Y. Jan. 4, 2016). Judge Torres also noted that Mr. Marron and his firm’s attorneys had “substantial experience litigating complex consumer class actions, are familiar with the applicable law, and have the resources necessary to represent the class.” Id. Gutierrez-Rodriguez v. R.M. Galicia, Inc., No. 16-cv-00182-H-BLM (S.D. Cal.) On March 26, 2018, the Honorable Marilyn Huff granted final approval of a nationwide TCPA class action settlement which provided monetary relief in the amount of $1,500,000, in addition to significant injunctive relief. (Dkt. 67.) The Law Offices of Ronald A. Marron were appointed class counsel. Gutierrez-Rodriguez v. R.M. Galicia, Inc., No. 16-CV-00182-H-BLM, 2018 WL 1470198, at *2 (S.D. Cal. Mar. 26, 2018). Thornton v. NCO Financial Systems, No. 16-CH-5780 (Cook County, Ill) On October 31, 2017, the Honorable Tomas R. Allen of the Circuit Court of Cook County, Illinois, granted final approval to a nationwide TCPA class which created a common fund in the amount of $8,000,000 and also provided for injunctive relief. The Law Offices of Ronald A. Marron served as co-lead class counsel. Elkind v. Revlon Consumer Products Corporation, No. 14-cv-2484(JS)(AKT) (E.D.N.Y.) On September 5, 2017, the Honorable A. Kathleen Tomlinson granted final approval of a nationwide false advertising class action settlement which challenged Revlon’s advertising of its “Age Defying with DNA Advantage” line of cosmetics in the amount of $900,000, and significant injunctive relief. The Law Offices of Ronald A. Marron served as co-lead class counsel. Sanders v. R.B.S. Citizen, N.A., No. 13-CV-03136-BAS (RBB) (S.D. Cal.)


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On January 27, 2017 the Honorable Cynthia A. Bashant granted final approval of a nationwide TCPA class action settlement in the amount of $4,551,267.50. Sanders v. R.B.S. Citizen, N.A., No. 13-CV-03136-BAS (RBB), 2017 WL 363536 (S.D. Cal. Jan. 25, 2017). On July 1, 2016, the Honorable Cynthia A. Bashant certified a nationwide class, for settlement purposes, of over one million persons receiving cell phone calls from Citizens made with an alleged automatic telephone dialing system. Dkt. 107. The Court appointed the Law Offices of Ronald A. Marron as class counsel, noting they have “significant experience in handling class actions.” Id. In re Leaf123 (Augustine v. Natrol), No. 14-114466 (U.S. Bankruptcy Court for the District of Delaware) This action involved allegations of false and deceptive advertising of Senna Leaf tea products as dietary aids. Plaintiff alleged Senna Leaf is nothing more than a stimulant laxative which does not aid diets but hinders them. After a strong showing in the district court, and pursuant to other actions against the defendant manufacturer, the defendant filed for bankruptcy. The Marron Firm followed defendant to the federal bankruptcy court and retained bankruptcy counsel to assist. After a full day mediation before a retired federal jurist, and months of follow up negotiations, a settlement was reached. On August 7, 2015, in In re Leaf123 (adversary proceeding of Augustine v. Natrol), the Honorable Brendan L. Shannon approved an injunctive relief-only settlement, finding it “fair, reasonable and adequate.” Johnson v. Triple Leaf Tea, Inc., No. 3:14-cv-01570-MMC (N.D. Cal.) An injunctive relief class action settlement, requiring manufacturer of senna leaf diet teas to re-label their products and remove ingredients based on alleged consumer confusion and harm, was filed in April 2014. The Marron firmed served as class counsel and the Honorable Maxine M. Chesney, Senior U.S. District Court Judge granted final approval to a classwide settlement on November 16, 2015. Johnson v. Triple Leaf Tea Inc., No. 3:14-CV-01570-MMC, 2015 WL 8943150, at *3, *5 (N.D. Cal. Nov. 16, 2015) (“Class Counsel has fully and competently prosecuted all causes of action, claims, theories of liability, and remedies reasonably available to the Class Members. The Court hereby affirms its appointment of the Law Offices of Ronald A. Marron, APLC as Class Counsel . . . . Class Counsel and Defendant's counsel are highly experienced civil litigation attorneys with specialized knowledge in food and drug labeling issues, and complex class action litigation generally.”). Perry v. Truong Giang Corp., Case No. BC58568 (L.A. Supr. Ct.) Plaintiff alleged defendant’s Senna Leaf teas, advertised as diet aids, were falsely or misleadingly advertised to consumers. After an all-day mediation, a class wide settlement was reached. In granting final approval to the settlement on August 5, 2015, the Honorable Kenneth Freeman noted that class counsel’s hourly rates were “reasonable” and stated the Marron Firm’s lawyers used skill in securing the positive results achieved on behalf of the class. The court also noted “this case involved difficult legal issues because federal and state laws governing dietary supplements are a gray area, . . . the attorneys displayed skill in researching and settling this case, which provides a benefit not only to Class Members but to the public at large . . . .” Carr v. Tadin, Inc., No. 3:12-cv-03040-JLS-JMA (S.D. Cal.) An injunctive relief class action settlement, requiring manufacturer of diet teas and other health supplements to re-label their products to avoid alleged consumer confusion, was filed in January 2014 before the Honorable Janis L. Sammartino. The Marron Firm was appointed as class counsel and the


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classwide settlement was granted final approval on December 5, 2014. Gallucci v. Boiron, Inc., No. 3:11-cv-2039-JAH (S.D. Cal.) The firm was class counsel for consumers of homeopathic drug products in an action against Boiron, Inc., the largest foreign manufacturer of homeopathic products in the United States, involving allegations that Boiron’s labeling and advertising were false and misleading. We obtained a nationwide settlement for the class which provided injunctive relief and restitution from a common fund of $5 million. The settlement was upheld by the Ninth Circuit on February 21, 2015. The case also set an industry standard for homeopathic drug labeling. See www.homeopathicpharmacy.org/pdf/press/AAHP_Advertising_ Guidelines.pdf. Red v. Kraft Foods Global, Inc., No. 2:10-1028-GW (C.D. Cal) The firm represented consumers in a class action against one of the world’s largest food companies and was appointed lead counsel in a consolidated putative class action. Though not fully settled, the action has resulted in a permanent injunction barring the use of deceptive health claims on Nabisco packaged foods containing artificial trans fat. The Court has also granted an interim award of attorneys’ fees. Mason v. Heel, Inc., No. 3:12-cv-3056-GPC-KSC (S.D. Cal.) Plaintiff alleged false and deceptive advertising of over-the-counter homeopathic drugs. On October 31, 2013, the Honorable Gonzalo P. Curiel granted preliminary approval to a nationwide class settlement of $1 million in monetary relief for the class plus four significant forms of injunctive relief. Final approval was granted on March 13, 2014. See Mason v. Heel, Inc., 3:12-CV-03056-GPC, 2014 WL 1664271 (S.D. Cal. Mar. 13, 2014). Clark v. National Western Life Insurance Co., No. BC321681 (L.A. Co. Super. Ct.) Class action involving allegations of elder financial abuse and fraud. After litigating the case for well over six years, including Mr. Marron being appointed co-lead class counsel, the case resulted in a settlement of approximately $25 million for consumers. In re Quaker Oats Labeling Litig., No. 5:10-cv-00502-RS (N.D. Cal.) False and deceptive advertising case concerning Instant Oats, Chewy Granola Bars and Oatmeal To Go products, including use of partially hydrogenated vegetable oil while also representing the products as healthy snacks. An injunctive relief class action settlement was granted preliminary approval on February 2, 2014, with my firm being appointed Class Counsel. On July 29, 2014, the court granted the final approval of the settlement. Nigh v. Humphreys Pharmacal, Inc., No. 3:12-cv-02714-MMA-DHB (S.D. Cal.) Case involving allegations of false and deceptive advertising of homeopathic over-the-counter drugs as effective when they allegedly were not. On October 23, 2013, a global settlement was granted final approved by the Honorable Michael M. Anello, involving a common fund of $1.4 million plus five significant forms of injunctive relief for consumers. Burton v. Ganeden Biotech, Inc., No. 3:11-cv-01471-W-NLS (S.D. Cal.) Action alleging false and deceptive advertising of a dietary probiotic supplement. On March 13, 2012, the Marron Firm settled the case for $900,000 in a common fund plus injunctive relief in the form of labeling changes. Final approval was granted on October 5, 2012.


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Hohenberg v. Ferrero U.S.A., Inc., No. 3:11-CV-00205-H-CAB (S.D. Cal.) This case involved false and deceptive advertising of sugary food product as a healthy breakfast food for children. After successfully defeating a motion to dismiss, Hohenberg, 2011 U.S. Dist. LEXIS 38471, at *6 (S.D. Cal. Mar. 22, 2011), the Honorable Marilyn Huff certified a class on November 15, 2011, resulting in a published decision, In re Ferrero Litig., 278 F.R.D. 552 (S.D. Cal. 2011). A final settlement consisting of injunctive relief labeling and marketing changes, plus a $550,000 common fund for monetary relief to the class was finally approved on July 9, 2012. In re Qunol CoQ10 Liquid Labeling Litigation, No. 8:11-cv-173-DOC (C.D. Cal.) This case involved false and deceptive consumer advertising of a dietary supplement. The Marron Firm was appointed class counsel and successfully defeated defendants’ motion to decertify the class following the Ninth Circuit’s decision in Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012); see also Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist. LEXIS 132323 (C.D. Cal. Nov. 14, 2011). The case settled on the eve of trial (originally scheduled for October 2, 2012) for cash payments to the class and injunctive relief. Iorio v. Asset Marketing Systems, Inc., No. 05cv00633-IEG-CAB (S.D. Cal.) This action involved allegations of elder financial abuse and fraud. Mr. Marron was appointed class counsel on August 24, 2006 and the Court certified a class on July 25, 2006. After nearly six years of intensive litigation, including “challenges to the pleadings, class certification, class decertification, summary judgment,…motion to modify the class definition, motion to strike various remedies in the prayer for relief, and motion to decertify the Class’ punitive damages claim,” plus three petitions to the Ninth Circuit, attempting to challenge the Rule 23(f) class certification, a settlement valued at $110 million was reached and approved on March 3, 2011. Iorio, Dkt. No. 480. In granting final approval to the settlement, the Court noted that class counsel were “highly experienced trial lawyers with specialized knowledge in insurance and annuity litigation, and complex class action litigation generally” and “capable of properly assessing the risks, expenses, and duration of continued litigation, including at trial and on appeal.” Id. at 7:18-22. Martinez v. Toll Brothers, No. 09-cv-00937-CDJ (E.D. Penn.) Shareholder derivative case alleging breach of fiduciary duty, corporate waste, unjust enrichment and insider trading, filed derivatively on behalf of Toll Brothers and against individual corporate officers. Under a joint prosecution agreement, this action was litigated along with other consolidated and related actions against Toll Brothers in a case styled Pfeiffer v. Toll Brothers, No. 4140-VCL in the Delaware Chancery Court. After extensive litigation, the case settled in September 2012 for $16.25 million in reimbursement to the corporation. Peterman v. North American Co. for Life & Health Insurance, No. BC357194, (L.A. Co. Super. Ct.), involved allegations of elder financial abuse. This case was litigated for over four years and achieved a settlement of approximately $60 million for consumers. Vaccarino v. Midland Nat’l Life Ins. Co., No. 2:11-cv-05858-CAS (MANx) (C.D. Cal.) This action involved allegations of elder financial abuse and fraud. On June 17, 2013, the Honorable Christina A. Snyder appointed the Marron Firm as Class Counsel, and on February 3, 2014, the Court certified a class of annuities purchasers under various theories of relief, including breach of


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contract and the UCL. On September 22, 2014, the court granted final approval to a class action settlement that achieved a settlement of approximately $5.55 million for consumers, including cy pres relief to the Congress of California Seniors. CURRENT AND NOTABLE APPOINTMENTS AS CLASS COUNSEL Hilsley v. Ocean Spray Cranberries, Inc., No. 3:17-cv-02335(GPC) (S.D. Cal.) A nationwide class of consumers brought this suit against Ocean Spray Cranberries, Inc. and Arnold Worldwide LLC for violations of California’s Consumer Legal Remedies Act. Plaintiff alleges that certain Ocean Spray products falsely state “no artificial flavors” when they in fact contain the artificial flavoring agent, malic acid. On November 29, 2018, the Honorable Gonzalo P. Curiel granted class certification, appointing Ronald A. Marron and Michael Houchin of the Marron Firm as class counsel. Romero v. Securus Technologies, Inc. No. 3:16-cv-01283 (JM) (S.D. Cal.) Plaintiffs Juan Romero, Kenneth Elliot, and Frank Tiscareno allege that Securus Technologies illegally recorded telephone conversations between inmates and their counsel. On November 21, 2018, the Honorable Jeffrey Miller granted class certification in part, appointing the Law Offices of Ronald A. Marron as co-lead class counsel. O’Shea v. American Solar Solutions, Inc., No. 3:14-cv-00894-L-RBB (S.D. Cal.) On March 3, 2017, the Honorable M. James Lorenz certified a TCPA class of all individuals in the United States who were called on behalf of the defendant, using the ViciDial predictive dialers, on a cellular telephone number, between November 22, 2012 and August 22, 2015, and appointed Ronald A. Marron, Alexis Wood and Kas Gallucci as class counsel. Reyes v. Education Credit Management Corporation, No. 3:15-cv-00628-BAS-AGS (S.D. Cal.) Plaintiff A.J. Reyes brought suit against Education Credit Management Corporation under California’s Invasion of Privacy Act. Plaintiff alleges due to an error in the Defendant’s phone system, inbound calls to ECMC were being recorded without their consent. On September 20, 2017, the Honorable Cynthia Bashant certified a class of individuals who made inbound calls to lines with the faulty setting, as well as granted certification of plaintiff’s demand for injunctive relief and monetary damages. The Law Offices of Ronald A. Marron was appointed as class counsel. Robbins v. Gencor Nutrients, Inc., No. 16AC-CC00366 (Circuit Court, Cole Cty. Mo.). On May 14, 2018, the Honorable Jon E. Beetem granted preliminary approval of a nationwide false advertising class action settlement concerning testosterone boosting supplements and appointed the Law Offices of Ronald A. Marron as co-lead class counsel. Allen v. Hyland’s, Inc., No. 12-CV-1150 DMG (MANx) (C.D. Cal.) Nationwide class of consumers certified for false and deceptive advertising against largest U.S.-based manufacturer of homeopathic drugs, involving ten over-the-counter homeopathic drug products. A nationwide class was certified after two years of vigorous litigation, including Marron firm counsel surviving against two motions to dismiss, a motion for judgment on the pleadings, and a motion to strike punitive damages. See 300 F.R.D. 643 (C.D. Cal. 2014). Following a thirteen-day jury trial before the Honorable Judge Dolly M. Gee, a verdict was returned in favor of Hyland’s. The Marron Firm timely appealed. On May 15, 2019, the Ninth Circuit reversed the judgment in part


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holding that “the jury’s narrow findings as to deceptive advertising do not resolve [Plaintiffs’] broader unfair practices theory” and that “the district court must engage in fact-finding to resolve [the UCL claim], and erred in granting judgment to Hyland’s without doing so.” Allen v. Hylands, Inc., No. 17-56184, 2018 WL 2142843, at *3 (9th Cir. May 15, 2019). Allen v. Similasan Corp., No. 12-cv-376 BAS (JLB) (S.D. Cal.) A California class of consumers alleging false and deceptive advertising of six homeopathic drugs was certified by the Honorable Cynthia A. Bashant on March 30, 2015, with the Court noting that the firm was experienced and competent to prosecute the matter on behalf of the Class. Judge Bashant denied summary judgment on the class’ claims that the drug products were not effective, as advertised, and certified claims under California’s Consumers Legal Remedies Act, Unfair Competition Law, False Advertising Law, breach of express and implied warranty, and violation of the federal Magnuson-Moss Warranty Act. OTHER NOTABLE CASES In re Santa Fe Natural Tobacco Company Marketing & Sales Practices Litig., No. 1:16-md-02695-JB-LF (D.N.M.) On May 24, 2016, Ronald A. Marron was appointed to the Executive Committee in a multidistrict litigation labeling case. (Dkt. 24.) Henderson v. The J.M. Smucker Company, No. 2:10-cv-4524-GHK (C.D. Cal.) This action was the catalyst forcing the defendant to reformulate a children’s frozen food production to remove trans-fat. On June 19, 2013, the Honorable George H. King held the firm’s client was a prevailing Private Attorney General and entitled to her costs and attorneys’ fees. NINTH CIRCUIT CASES

John Sandoval v. Pharmacare US, Inc., Case No. 16-56301 (9th Cir.) On April 5, 2016, the Ninth Circuit reversed, in part, the District Court’s order granting summary judgment in a false advertising class action concerning an aphrodisiac dietary supplement called “IntenseX” The Marron Firm successfully argued that statements on the intensex.com website showed that the defendant failed to obtain approval of IntenseX as an OTC aphrodisiac drug, thus creating a basis for liability under California’s Unfair Competition Law. Reid v. Johnson & Johnson, Case No. 12-56726 (9th Cir.) On March 13, 2015, the Ninth Circuit reversed, in part, the District Court’s order granting the defendant’s motion to dismiss in a false advertising class action concerning Benecol spread that was allegedly falsely advertised as containing “No Trans Fat.” The Marron Firm successfully argued that the plaintiff’s claims are not preempted by the Federal Food, Drug, and Cosmetics Act. Reid v. Johnson & Johnson, 780 F.3d 952, 964 (9th Cir. 2015).


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SUPREME COURT CASES Troy Lambert v. Nutraceutical Corp., Case No. 17-1094 On September 15, 2017, the Ninth Circuit Court of Appeals reversed a class decertification order in a false advertising class action concerning a dietary supplement product. (Case No. 15-56423). The Marron Firm successfully argued that the “full refund” measure of damages could be calculated on a class wide basis and that the model matched plaintiff’s theory of liability. “In a matter of first impression,” the Ninth Circuit also held that “the Rule 23(f) deadline is not jurisdictional” and that “equitable exceptions apply.” Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1174 (9th Cir. 2017). On February 26, 2019, the United States Supreme Court reversed the Ninth Circuit's holding that equitable exceptions apply to the Rule 23(f) deadline. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019). However, the Supreme Court remanded the case back to the Ninth Circuit for consideration of whether the "Rule 23(f) petition was timely even without resort to tolling." Id.at 717. The Ninth Circuit is now currently considering the remanded issues.


EXHIBIT 2


Case Name/Billing Attorney Years of Experience/Years in

Practice

Hourly Rate

Vess v. Bank of Am., N.A., No. 10-cv-0920 AJB, 2013 WL 5775330, at *4 (S.D. Cal. Oct. 24, 2013) Decl. of Alisa A. Martin ¶¶ 16, 18

- Alisa A. Martin

- James R. Patterson

Bar admission – 2002 = 11 years’ experience at time of this case; class action experience = 10 years Bar admission – 2000 = 13 years’ experience at time of this case

$575

$675

Johansson-Dohrmann v. Cbr Systems, Inc., No. 3:12-cv-01115-MMA-BGS, 2013 WL 3864341, at *10 (S.D. Cal. July 24, 2013) (approving average hourly rate of $540); id. at *53 (declaring that in 2007 hourly rates at San Diego office of Luce, Forward were $725 for a partner and $220-$450 for associates) Decl. of Patrick N. Keegan, ¶¶ 20

- Patrick N. Keegan

- Average hourly rate

Bar admission – 1993 = 20 years’ experience at time of this case

$695

$540


- Testifying at ¶ 53 with proof at Ex. C (p. 54 of 76) that in 2007 hourly rates at San Diego office of Luce, Forward were $725 for a partner and $220-$450 for associates

$725 (partner, in

2007)

$220-$450 (associate

rate range, in 2007)

Morey v. Louis Vuitton, No. Am., Inc., No. 11-cv-1517 WQH (BLM)., 2014 WL 109194, at *6-7 (S.D. Cal. Jan. 9, 2014) (coupon settlement) Decl. of Gene J. Stonebarger ¶¶ 6, 7 & Ex. A

- Gene J. Stonebarger

- Richard D. Lambert

- Elaine W. Yan

- James R. Patterson

- Allison Goddard

Bar admission – 2000 = 14 years’ experience Bar admission – 2007 = 7 years’ experience Bar admission – 2011 = 3 years’ experience, 2 Witkin Awards Bar admission – 2000 = 14 years’ experience Bar admission – 2000 = 14 years’ experience

$650

$500

$350

$675

$675

Chaikin v. Lululemon USA Inc., No. 3:12–CV–02481–GPC–MDD, 2014 WL 1245461, at *6-7 (S.D. Cal. Mar. 17, 2014) ($25 off future purchase settlement) Decl. of Gene J. Stonebarger ¶ 6


- Gene J. Stonebarger - Richard D. Lambert - Elaine W. Yan - James R. Patterson - Brian J. Lawler

Same as above Same as above Same as above Same as above Bar admission – 2002 (members.calbar.ca. gov/fal/Member/Detail/221488)

$650 $500 $350 $650 $500

In Re Hydroxycut Marketing & Sales Practices Litig., No. 3:09-MD-02087-BTM (KSC) Decl. of Timothy G. Blood ¶¶ 28-29, 31

- Timothy G. Blood

- Leslie Hurst

- Thomas O’Reardon, II

- Paula Roach

- Paralegals - Document Clerk

Bar admission – 1990 = 24 years’ experience Bar admission – 1995 = 19 years’ experience Bar admission – 2006 = 8 years’ experience Bar admission – 2007 = 7 years’ experience

$695

$585

$510

$410

$150-$290 $225

In re Quaker Oats Labeling Litig., 5:10-CV-00502-RS, Order at pp. 7-8, July 29, 2014, approving rates for injunctive relief only settlement, as follows:

- Ronald A. Marron


- Skye Resendes - Alexis Wood - Kas Gallucci - Erin J. Minelli

Over 19 years’ experience 4th year of practice 7th year of practice 2d year of practice 7th year of practice

$715

$440 $425 $400 $400

In re Ferrero Litigation, No. 12-56469, D.C. No. 3:11-cv-00205-H-KSC, unpublished July 16, 2014 Ninth Circuit Memorandum Opinion, approving rates incurred for injunctive relief settlement in 2012, as follows:

- Ronald A. Marron

- Skye Resendes See also Final Order and Judgment ¶ 11 (“The Court concludes the billing rates used by Class Counsel to be justified by prior awards in similar litigation and the evidence presented with their motion showing these rates are in line with prevailing rates in this District.”), and Decl. of Ronald A. Marron in support of fees in that case.

Over 17 years’ experience at the time of fee award 1 year of experience at time of fee award

$650

$385


EXHIBIT 3


Firm

P

rincipal A

verage F

irm w

ide F

irm w

ide P

artner P

artner P

artner P

artner A

ssociate A

ssociate A

ssociate A

ssociate N

ame

or Largest

fill-time

Average

Median

Billing

Billing

Billing

Billing

Billing

Billing

Billing

Billing

Office

equivalent B

illing B

illing R

ate: R

ate: R

ate: R

ate: R

ate: R

ate: R

ate: R

ate: A

ttorneys R

ate H

igh L

ow

A

verage M

edian H

igh L

ow

Average

Median

Best B

est R

iverside, 195

$358 $360

$575 $275

$417 $420

$375 $205

$265 $240

&

CA

($550)

($31 0) ($395)

($225) K

rieger

Knobbe,

Irvine, 268

$439 $415

$735 $415

$525 $500

$495 $295

$346 $345

Martens,

CA

($432)

($415) ($71 0)

($395) ($511)

($485) ($450)

($285) ($322)

($335) O

lson &

Bear

Manatt,

Los

322 $602

$620 $850

$540 $676

$670 $550

$215 $464

$500 P

helps &

Angeles,

($568) ($590)

($850) ($525)

($651) ($650)

($525) ($200)

($405) ($410)

I

Phillips

CA

Sheppard,

Los

465 $860

$505 $635

$275 M

ullin, A

ngeles, ($820)

($495) ($620)

($270) R

itcher &

CA

H

ampton

* Billing R

ates in RE

D are from

the 20 I 0 NL

J Billing S

urvey


Firm

P

rincipal A

verage F

irm w

ide F

irm w

ide P

artner P

artner P

artner P

artner A

ssociate A

ssociate A

ssociate A

ssociate N

ame

or Largest

fill-time

Average

Median

Billing

Billing

Billing

Billing

Billing

Billing

Billing

Billing

Office

equivalent B

illing B

illing R

ate: R

ate: R

ate: R

ate: R

ate: R

ate: R

ate: R

ate: A

ttorneys R

ate H

igh L

ow

Average

Median

High

Low

A

verage M

edian

Best B

est R

iverside, 195

$358 $360

$575 $275

$417 $420

$375 $205

$265 $240

&

CA

K

rieger

Knobbe,

Irvine, 268

$439 $415

$735 $415

$525 $500

$495 $295

$346 $345

Martens,

CA

O

lson &

Bear

Manatt,

Los

322 $602

$620 $850

$540 $676

$670 $550

$215 $464

$500 I P

helps &

Angeles,

I P

hillips C

A

Sheppard,

Los

465 $860

$505 $635

$275 M

ullin, A

ngeles, R

itcher &

CA

H

ampton


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The 2011 Law Firm Billing Survey It appears that modest annual billing rate increases are here to stay. For the third year in a row, law firms showed restraint with hourly rate increases, inching up at a rate only slightly higher than inflation in many cases.

December 19,2011 It appears that modest annual billing rate increases are here to stay. For the third year in a row, Law firms showed restraint with hourly rate increases, inching up at a rate only slightly higher than inflation in many cases. The average firmwide billing rate, which combines partner and associate rates, increased by 4.4 percent during 2011, according to The National Law Journals annual Billing survey. That followed on the heels of a 2.7 percent increase in 2010 and a 2.5 percent increase in 2009- all of which paled in comparison to the gogo, prerecession days when firms could charge between 6 and 8 percent more each year.

etore the recession, I think we had a seller's market," said Altman W eil consultant Ward Bower. "There was so much demand that law firms were in the driver's seat and could get what they wanted. Clients are in the driver's seat now, and they aren't going to pay those increases. They're exerting much more control over pricing, strategy and staffing decisions."

BY THE NUMBERS

A nationwide sampling of law firm billing rates We asked the respondents to our 2011 survey ofthe nation's 250 largest law firms to provide a range ofhourly billing rates.

Firms report using alternatives to the billable hour Law firms report on the percentages of revenue obtained through variations on the billable hour and true alternatives.

Firms report their billing rates by associate class A sampling of hourly rates charged by law firms that establish billing rates based on associate class.

FURTHER READING: See last year's survey.


• ·.;;,

BILLING SURVE .

A SPECIAL REPORT

Ffmlllride l Pat1ner Partner Partner i Associate Associate Assoc!Dta ,._;

Finn Na.me Average Median j Billing 1 llilllno Bllflng ' a..,. ..., """' ~ Bllliog _ BilUng Rate: Rate: 1 Rate: ~ate: Rate: -;

1:~ ~!" High low lil9h . :.., \;~:-"" c:, ~Jver~ .!"" "' Baker. I Donelson. Memphis, I Bearman, 527 $311 $310 $595 $250 $357 $345 S315 I $160 S22B~

Caldwell& Tenn.

1 Berl:oWitz

.-~~Sis~~& =l<ffiigir - -53.60".. :~$5'7.5 =:·

I 1 Briggs ana Minneapolis I $62~ Mufgan

-~ .- ::'

- _$180 Sa3"5'

BlyanCM st. Louis 90S $475 $565 S!i40 $200 S356

... But!el LOijgo- O'ef{ol! f~fi SV.QO S32,

Carlton Tampa, Fta. 270 $1115 i $320 $470 $470 $380 $195 $262~ Fields

~30

Day l'lllley Parsipj!any, 324 $447 $537 $.525 S317 NJ. ,.., ,..._.,


Finn Name

Day Pitney

I Olcl!:stein Shapfrc

.:-olosmori:& Sh'otll ~-

Duane Morris

Epstein

• Principal or . Largest

omce

'

T-~~ ~

•• i::::t::.-

Pa{sippany, N.J.

• Wast\lngton

Setk&t& ! NewYork Green

, Average full. · Filmwide flrmwide ~ Partrn!r P artnef Partner lime A'terage Media:n Billing BilllnQ Biling equivalent BHiino , BliUqg Rate: ~'!~~we• g·"to . -E' P_!tl:l HiM

...J._ - ~

Rate: ' Rate: 1-i\u.• ! ~ uDN~~no .... :~ - . .

324 $447

335 l 5560 i

l

S550 S1006 , $540 , I , 5680

$615 I $1120 l 5530 S747

' $875 ! $375 ' $575

Partner Billing Rate: '~<>Iii•"'

5670

$730

$570

Associate Assoc ate ~te.li Billing Billin!l . Bi!Ung

. Rate: ; Rate: . Rate: ~ "''""''""" ~-7!..~~

$545 5225 $~

L

S730 5508

$53Q ' !

s22s I

l

S350 I S519 ! $500 1 !550 1 '$1'95 j 5341" I


Average Y- FinnWide FimJWide Partner . Partner . Partner · Partner Associate Associate Assodll ~~ Principal or 8 -·

Firm Name Largest time Average Medan Billing . iJillq t Billing 6illfn9 8illing Bi~ BiUing

Office equivalent ann no .~llif'l!l Rate: Rate: · Rate: Rate: Rat.e: R!tle: "ate: ~ _;,;;~ t" ~.:~ ~\I'C g,.,.,. D''" Lllnto ln:ur ,UIIIIiAn Lll~ J..patr '-"".~~

Fi~e.trU:t~ -. :· ~. i -·!; ~~-. _:; ~~5:: ·cella( ~· -~.;;.- ,j :E-_~..,.:".

~crt>:':: ~ ~ 1~8 5730 sl{~ S275 r-~

~;!!~rf&' o 7 ,1Je "'! .. ;::.

'Strnro ! ~ "?.i.'

~ .~ !) .. _J~ L __:_$-

fox Philadelphia 450 S413 $420 S725 $325 $486 ' $483 $455 $190 S297 Rolhscllild t :

! ~-_''t;"'"~~ ~- - . . '

~

~

i.ro§tllr.®m ~

iH-_ ~ - -A~

ftSu :. .. ~;_' Clr~Cf.nnan. _:;._ · ~ ~.,!101 $2·9& 5295 ' :S5,15 ! S_34tr $255 -'if~· ;~;~ :!"" :~~ "' -a:~ ,?g '!'"&.

."1:.;- ,..,T~~.- ~ ~ - " 4 ; Gardei& I

I ' i

SJ25s i WjMe oanas 265 $435 $45\l $815 $38.1} $550 $551} I $500 $225 I

Sewell

~ .. ;:-. ~z -~~ .... . --:.;. -;~

199' :-- ~0 ~450 SJ>2S S4Qo sapo. ·~ " - ~ -.

Harris ! Roell ester, I i 176 $39{} $275 $250 I S160 Beach N.Y.

' ~· _ !'otk:L -. B'frtt~

~'iacu'se.

• i Hodgson I ' Bulfalo, N.Y. $885 S24tl $378 $360 $420 $180 $234 Russ

_$520

l New York 300 S633 $615 $828 I $000 ~ $695 $270 $533 L j

>';: --; - -- - - _.!I

t O , ,.,.. • •• + o I "'li n"••


Flrm tlame

Hughes Hubbard & Reed

Jades on Kelty

~'-=ka~a· - 1 $~oler

KelleyOrye &VI!arren

}

~o'o~e. Mart'&ns. ·olson_& ~Bear- -

Principal or Largest Offfte

NewYcnk

Charleston, W.Va.

New YO!!<

t Lane Powell 1 Seattle

leWis, Rice & Rngersh ' St. LOlliS

Average tuu. . lime

equi>Jalent A·"nnu>uc,.-

300

· Flrmwide . Average ' Bllnng

O•to·

$633

'351 - i341

._..

170 $275

321 $474

152 $275

Firmwlde Mechn BlUing Jl.:af<>

Partner 1 Partner Billing Billing Rate: Rate: IJinh '"'"

$515 $990 5625

$275 ! S505

$400 I $925 $4BO

$470 S270

~-._

PartDer Billing

• Rate: J 1\ua-r.tno

$828

$634

$460

. ' S390'

' Partner 8llliftq Rate: Uorll;on

i800

S190

$325

: 5al5

$645

S500

Associate Associate Associate {t Bining I Bi!Hng BlUing R8te: Rate: Rate: l.linh

S695

S425

S260 I

$595

I I'MJI

S2.70

S175

S155

':".·.,...,

"lfb . r

$275

$150

S533

S208

·s~oo

"Hi_, -I


Finn Name

Mana11, Phetps& Pllillif}s

M!Uer& Maron

PriRCipal or Largest Office

Los Angeles

·~~~

Nelsoli., ulllils Rile\'_

' &. • . :s-~rnorough

Nexsan Columbia, Pruet S.C.

Average full. . time

equivalent Attnmouc•

322

184

178

$602

$472

$313

S620 S85G S540 $!)75 S670

I

$455 $800 $405 $562 I $540

5325 S610 ! $240- $369 $375 i

$550 5235

$550

$510

$265

Associate Associate ~ BiUing BlJliOO Rate: ! Rate: I nur J~A._uorAttG

-,~ -i£io . ·~~: "i¥'.;;l--~~~~

S215 $464

$215 $374


Prtncipal or Firm Name Largest

" Oftice .. . -Ffattoo -~

,- B.oggs~ --.....

Pepper Hamilton

Phelps Dtmhar

Polsl~'ellf ~ S~UQllark

Philadelphia

NewOtleans

Saul E\'iing , Philadelphia

I Seyfaflll Shaw

Sne~Rard, "ultrn.

_"Rlchter& ~Ramp!on·

ShumaKer. Loop& Kendrick

Toledo, Ohio

Average fuUUme equivalent

-~"""'"""''

Flnnwide Firmwide Partner Average Median . Silting Billing ~ BillinQ Rate:

-L 9"'~ -.~ p:at~·

- __ .,. Partner Par1ner Partner Associate Associate Associate ~ Billing

1 Billing Billing Billil1!1 Billing BiDing

Rale: Rat.e: Rate: : Rate: Rate: Rate:

"--6

~ ·~>:12 -- - s54{., · :-Ej,.JO -:..r ...

• ."~ - .A""'WI" Ua,.:tl!>n U~lr --~~-'i_i:._, -~J!OJ':Jlno }419 ~~~9 , ~ "' S6if6k ~- ~5,70· -""S24(t- ., 10

~59 $825 mo

'--~~ ~1,5 ,

·S285-~=~- /'J~.

280 $236 S225 $465 5190

$431 $450 $750 $350

$355 i

20S $345 ' :S365 $555 $265

$557

S55o ~.:. s~· ..:;; ---~- ~·o:..-

I $281 I S275

$490

$528 $525 '

$364 $175

~

S460 $235

S24~ 5150

5495 $245

I $505 I $225

$.32{) I $195 !

$189 '

S326

S608

S252

' =-


• ..,,. ... . _ ..... -I - ··-- - -·

Principal or A•teraqe lull- Finnwide fmnwide Partner Partner Partner Partner Associate Associate Associate -~ ; FlrmName Largest . time Average Median Billing Billing Billing . Billing : 8ilfing - Billing BUfing

Office equivalent Billing Blllng Rate.: Rate: Rate: Rate: Rate: · Rate: Rate: ~-- ' i\lfi\!TI4Ue' g_.,f .. -f.r- ~~·0 ~illh ,......,, 1\ua.ns.M " ~Otti:OI)' "'-'~·~< l l\\11

1 At~or:v.o-"f!lfl'\ilton ~.

-~0::4=:_~ :1-· f -.

.~~ ~-:

Shumaker. Loop& Tol&dG. Ohio 208 $345 $365 S555 $265 $364 $375 $32.!} $195 $252 Kendrick i

s.Js~ ~ 1fts_·. S625 - ..• &tSo·r -~::-'ssoo' -- "37F 373 S320 $4St §.1fl5.-. S292

~ zr±~ · .. - -- -:z:;-~- ~~ ~3+-- - r-Strasburger Dallas 181 5363 $362 5630 S211 S395

: $397 I 5332 S199 $250: &Price

I j I

I '-~~ .. . -~

- '::$59~ .t' ~$595

':'h~-

I ' Thampson i i Coburn St. Louis 325 S750 I 5315 $445 I 5195

1 l~9 S280 5260:

-7

I Vedder Price l Chicago ' 246 $445 $445 $735 $295 $490 $520 S26.5 j S345

S'3~S~ - :"~ -~~

'o'\li'n~tealJ $680 o· SZ15 'SJQ$

Winston& I

Strawn Chicago 868 S557 $550 $1130 5580 $700 1


EXHIBIT 4


GEORGETOWN LAW Center for the Study of the Legal Profession PEER MONITOR ~

Report on the State of the Legal Market


The Center for the Study of the Legal Profession at the Georgetown University Law Center and Thomson Reuters Peer Monitor are pleased

to present this 2014 Reporl setting out our views of the dominant trends

impacting the legal market in 2013 and key issues likely to influence the market in 2014 and beyond. 1

Introduction - Is Bigger Always Better?

There is a famous scene in the 1975 award-winning Steven Spielberg movie Jaws, when the Amity Police Chief Martin Brody (played by Roy Scheider) first catches a glimpse of the 25-foot long great white shark that has been terrorizing his community and that he is then chasing in a small fishing boat. Stunned by what he has seen, Brody backs into the cabin of the boat and grimly remarks to Quint, the seasoned shark hunter, "You're gonna need a bigger boat."

In an admittedly different context, one could argue that this same advice has been the most prominent driver of law firm strategies over the past decade or so. In large measure, most law firm leaders -- both before and since the Great Recession -- have appeared fixated on building "a bigger boat" as the keystone of their vision for moving their firms forward. Driven by a desire to achieve perceived economies of scale, to better serve client needs, to mirror the actions of competitors, or to improve their rankings in industry statistics, law firms have pursued aggressive growth strategies -- before 2008, through ever increasing hiring quotas and, since 2008, primarily through lateral hiring and mergers.2

The past year saw an overall continuation of this trend, although some firms have begun to retrench. According to The National Law Journal, the 350 largest U.S. law firms grew by only 1.1 percent during 2012, as compared to 1. 7 percent growth in 2011. And, interestingly, some 140 firms on the NLJ 350 list (or about 40 percent of the group) actually shrank in size as compared to the prior year.3 At the same time, 2013 was a record year for law firm mergers, and lateral acquisitions continued apace.

By early December, the number of reported mergers involving U.S. law firms (91) had already surpassed the previous record (70) set in 2008, and it was widely expected that the year-end total would be even higher.4

1 The Center for the Study of the Legal Profession and Thomson Reuters Peer Monitor gratefully acknowledge the

participation of the following persons in the preparation of this Report: from the Center for the Study of the Legal Profession -James W. Jones, Senior Fellow (lead author) and Milton C. Regan, Jr., Professor of Law and Co-Direc

tor; and from Thomson Reuters Peer Monitor- Mark Medice, Senior Director and Jennifer Roberts, Data Analyst.

2 The dramatic growth in the size of law firms has been a major feature of the legal market for the past 50 years. In

2012, The National Law Journal's NLJ 350 list showed that the 350th largest law firm in the U.S. had 112 lawyers.

That compared starkly to 1965, when the largest law firm in the U.S. had only 125 lawyers.

3 "The NLJ 350," The National Law Journal, July 6, 2013.

4 "Big Firm Tie-Ups Abroad Keep 2013 Merger Mania Alive," The AmLaw Daily, Dec. 12, 2013. The article also

describes high levels of merger activity in the United Kingdom, Canada, and South Africa.


While year-end figures on lateral moves among U.S. law firms are not yet available, it is expected that they will reflect a continuation of the high level of lateral partner activity that we have seen in the market in recent years.5 In addition, in a recent survey of leaders of Amlaw 200 firms, The American Lawyer found that a whopping 80 percent of respondents expected to make lateral partner hires in litigation related practice areas during 2014.6

Against this background, this report will examine the continuing dominant role that growth appears to play in the strategic thinking of most U.S. law firms. We will ask whether building "a bigger boat" is always the right strategy for firms and will consider some of the challenges that growth - particularly rapid growth -- poses for law firm leaders. Finally, we will suggest other areas of focus that we believe may be far more relevant to the success of law firms in the future. The starting place for our inquiry, however, must be a look at the state of today's legal market and the ways in which competition in the market has changed fundamentally since 2008.

Current State of the Legal Market By the Numbers

By most indicators, 2013 was another flat year for economic growth in U.S. law firms, with continuing sluggish demand growth, persistent challenges of low productivity, ongoing client pushback on rate increases, and a continuing struggle to maintain discipline on expenses. Although the performance of individual firms obviously differed, with some performing well above market averages, on the whole the financial performance of the U.S. legal market remained fairly lackluster during the year.

Demand Growth

Demand for legal services in 2013 declined slightly across the industry, as tracked in the Thomson Reuters Peer Monitor data base.7 As shown in Chart 1 below (which tracks performance on a year-to-date basis through November), after a sharp decline in the first quarter,8 demand growth recovered somewhat ending at a slightly negative level of -1.1 percent for the 12-month period measured. While a clear improvement over the collapse in demand growth seen in 2009 (when growth hit a negative 5.1 percent level), the current demand growth rate has been essentially flat to somewhat negative for the past three years.

5 In February 2013, in its annual Lateral Report, The American Lawyer noted that lateral partner moves among Am Law 200 firms jumped 9.7 percent over the prior year for the 12-month period ending September 30, 2012, and 33.6 percent over a similar period in 2010. Even taking into account the fact that 280 of the 2,691 lateral partner moves in 2012 were attributable to the failure of a single firm (Dewey & LeBoeuf), the increased level of activity was noteworthy. "The 2013 Lateral Report,' The American Lawyer, Mar. 1, 2013.

6 Richard Uoyd, "Firm Leaders Survey: Slow Growth on Tap for 2014," The American Lawyer. Dec. 2, 2013. 7 Thomson Reuters Peer Monitor data rPeer Monitor data") are based on reported results from 130 law firms, including 53

AmLaw 100 firms, 38 AmLaw 2nd 100 firms, and 39 additional firms. For present purposes, "demand for legal services" is viewed as equivalent to total billable hours recorded by firms included in a particular data base.

8 It is worth noting that the sharp decline in demand growth during the first quarter of 2013 followed an upswing in demand in the fourth quarter of 2012, an increase at least partly attributable to the desire of many clients to close various corporate transactions in advance of new tax rules that took effect on January 1, 2013.

2


l ~ ro a::

..c

~ 2

<.9

Chart 1 -Growth in Demand for Legal Services

6

3

0

-3 -t

-6 ) 2005-2008 2009 CAGR

Source Thomson Reuters Peer Monitor

Y/Y% Change

2010 2011 2012 2013 (Nov YTD)

As shown in Chart 2 below, among various practice areas, when measured on a 2013 year-to-date comparative basis, real estate showed the highest demand growth, albeit at a modest 1.2 percent level, followed by labor and employment at 0.4 percent. Corporate practices were essentially flat, and all other practices saw declines.

Chart 2- Demand Growth by Practices

3 Y/Y% Change

0 -t---

I -6

-9 Real Labor/ Corporate

Estate Emp loyment (all) Tax IP- Litigation Bankruptcy

Litigation

( • YTD Nov: '13 v '12 l Source Thomson Reuters Peer Mon1tor

Productivity

During 2013, the number of lawyers in U.S. firms grew by about 1 percent. Given the

slight decline in overall demand growth, it is not surprising, therefore, that productivity

- defined as the total number of billable hours recorded by a firm divided by the total

number of lawyers in the firm -- remained essentially flat.

3


-§ 0 :;; a; Q_

'3 0

:r:

As can be seen in Chart 3 below, this continues a trend that we have seen for the last several years.9 What remains significant, however, is that current levels of productivity are still over 100 billable hours per timekeeper per year lower than in the pre-recession period in 2007.

Moreover, 2013 saw a continuation of the familiar pattern of associate billable hours exceeding those of equity partners by some 100-120 hours per year, and equity partner billable hours exceeding those of other categories of lawyers (including non-equity partners, of counsel, senior counsel , special counsel, etc.) by some 300 hours per year. All of this as shown in Chart 3 evidences an ongoing problem of under productivity in the latter categories of lawyers.

Ch art 3- Productivity (Hours per Lawyer) by Category

150 1 140

130 1 120 -

110 --j

100 o1 02 m o41a· a2 u1~~' a' o•fo,-a2 o3 o'flll o2 a' o4 o1 o2 Q3 o•1o1 02 o' a4:.:o, 02 a' o• o• o2 oct+Nov

I ·as '06 l•o7 l·os l·og '10 l·u i·12 '13

- Equity Partners - Associates - Other Lawyers - Composite

Source Thomson Reuters ;:.aor :\1on,tor Lawyers Only

Rates and Realization

As has been the case since the beginning of the Great Recession in 2008, firms continued to raise their rates during 2013, albeit at a fairly modest level of 3.5 percent (well below the 6-8 percent annual increases typical in the pre-2008 period). And, as has also been the case for the past five years, clients continued to push back on rate increases, keeping pressure on the realization rates that firms were able to achieve.

Chart 4 below shows the rate progression as tracked in the Peer Monitor data base from the third quarter of 2010 through November 2013. As can be seen, over this three-year period, firms increased their standard rates by 11 percent from an average of $429 per hour to $476 (or an average increase of about 3.7 pen::ent per year). At the same time, however, the collected rates actually achieved by firms increased by only 8.8 percent from an average of $363 per hour to $395 (or an average increase of 2.9 percent).

9 There was an uptick in productivity during October 2013, but- based on data from prior years- this appears to be a fairly typical seasonal anomaly with October hours generally being counterbalanced by lower billable hours for the remainder of the fourth quarter.

4


2J '" o=

'" :;r

'" >

""

Chart 4- Rate Progression

$500

$475 -·

$450 - i

$425 _, ~~--~;:~--~~~-----

/ -----~-- ~ $400

$375 l ---------------~~ ~ ~ -----~~ --~~----------------~

--------~-~------------$350 _/

~-

•03

'10

(

04 ! 01 0

!'11

Source Thomson Rellters Peer \~omlor

02

(

[; L01 03 04 02 03 Q4 Q2 Q3 Nov

YTD 2

- Standard - Worked -Billed -Collected

These results, which reflect continuing client resistance to firm rate hikes, are also reflected in firm realization rates over the same period. As can be seen in Chart 5 below, over the three-year period from the third quarter of 2010 through the third quarter of 2013, realization rates - i.e., the percentages of work performed at a firm's standard rates that are actually billed to and collected from clients - have continued to decline. Billing realization dropped from 89.12 percent to 86.74 percent, while collected realization dropped from 85.32 percent to 83.49 percent (a rate that is slightly lower than the record low rate of 83.6 percent seen in 2012). What this means, of course, is that - on average - law firms are collecting only 83.5 cents for every $1.00 of standard time they record. To understand the full impact, one need only consider that at the end of 2007, the collected realization rate was at the 92 percent level.

Chart 5- Billed and Collected Rates against Standard

90%

89%

86%

84%

83%

Q3 Q4~ Q3 l·n- -(

o4 I 01

:'11

Q2

( - Billing - Collection;

Source. n'ornson Reute~s Peer Uon:ter

Q4 01

o'l3

02 Q3 Nov YTD

5


Expenses

One of the challenges of managing in a slow growth economy is keeping a tight rein on

expenses- both direct and indirect.10 Prior to the onset of the economic downturn in

2008, by any rational measure expenses in law firms were largely out of control. In the

fourth quarter of 2007, for example, direct expenses of U.S. law firms (measured on a

rolling 12-month year-over- year percentage change basis) were growing at an average

annual rate of 18 percent, while indirect expenses were growing at 10.9 percent. With

the beginning of the recession in 2008, almost all firms slashed expenses across the

board, hitting negative growth rates in the second quarter of 2010 of -8.2 percent for di

rect expenses and -2.9 percent for indirect. Those reduced levels of spending -induced

primarily by panicked reactions to the economic crisis - were not sustainable over the

long term, and expenses began to rise again toward the end of 2010. Since that time, as

shown in Chart 6 below, although expense growth has increased - in 2013 up to 2.1

percent for both direct and indirect expenses -- firms have done a reasonably good job of

managing their expenses effectively.

Chart 6- Expense Growth

20% -, Rolling 12-Month Y/Y% Change

15% --j

10%

5%

0

-5% ----!

-lO% -~ r Ql Q2 Q3 Q4 rQl Q2 Q3 Q4,Q1 Q2 Q3 Q4 F Q2 Q3 Q4 CIQ1 Q2 Q3 Q4 (Q, Q2 Q3 Q4 -,IQ l Q2 Q3

I '07 I '08 I '09 I '10 '11 I '12 '13

r -Direct -Overhead

Source: Thomson Reuters Peer Ma11ilcu

Profits per Partner

The continuing combination of sluggish demand growth, constrained productivity, and

low realization rates have combined to keep profits per partner ("PPP") relatively flat over

the past three years. As shown on Chart 7 below, while PPP in 201311 was up slightly for

all categories affirms across the market, the increase over 2012 was quite modest and,

at least in the case of Am Law 100 and mid-sized firms, lower than levels in 2011.12

1 0 Direct expenses refer to those expenses related to fee earners (primarily the compensation and benefits costs of lawyers and other timekeepers). Indirect expenses refer to all other expenses of the firm (including occupancy costs, technology, administrative staff, etc.).

11 The PPP shown on Chart 7 for 2013 is based on YTD October numbers. 12 It should be noted that Peer Monitor includes in its "profits per partner" number a// lawyers listed by firms as "partners"

(whether equity or non~quily or income). This approach facilitates easier comparisons between firms than a "profits per equity partne~· measure and eliminates questions about how firms define "equity partners."

6


Chart 7- Profits per Partner

$600,000

$550,000

$500,000

$450,000

$350,000

$300,000 r All Segments Am Law 100

( • 2011 • 2012

Source. Thomson Reute1s Peer Momlar

Am Law Second 100

• 2013

Changed Basis of Competition in the Legal Market

Mid Size

The current trends described above reflect fundamental changes in the nature of competition in the legal market, changes that have been increasingly evident since 2008. Although many factors have contributed to these changes, some of them unrelated to the economic downturn, 13 the onset of the Great Recession accelerated (and, to some extent, exacerbated) the pace of change across the market.

The first and perhaps most obvious change is that the legal market has become much more intensely competitive than it was five years ago. This is hardly surprising since, for the past five years, the supply of legal services has significantly exceeded demand, as reflected in the ongoing struggle of firms to maintain prior levels of productivity. In a market in which supply exceeds demand, the only way in which one supplier can expand its market share is by taking business from others, with a resulting increase in overall competition. And that is precisely what has happened in the legal market since 2008.

A second and perhaps more lasting change is that the market for legal services has shifted from a sellers' to a buyers' market, a shift that has serious long-term implications for the leaders of all law firms. Prior to 2008, the fundamental decisions about how legal services were delivered --the myriad decisions about how matters were organized, scheduled, and staffed; how strategies and tactics were implemented; and how lawyers charged for their services --were all essentially made by law firms and not by their clients. This is not to suggest that clients were not consulted or that, from time to time, clients didn't push back, but by and large all of the key decisions relating to a representation were made by outside lawyers.

13 These unrelated changes include factors like the growing availability of public information about the legal market, the inexorable drive toward commoditization of legal services enhanced by the growth of enabling technologies, the emergence of non-traditional service providers, the changing role of in-house corporate counsel, the impact of globalization, and the collapse of an unsustainable law firm business and economic model based largely on the ability to raise rates 6-8 percent a year.

7


All of that changed beginning in 2008, when clients -driven to a large extent by an economic imperative to bring down the overall costs of legal services - took control of all of

these key decisions. That shift, combined with the dynamic of a market in which supply

exceeds demand (as described above), placed clients in control of the relationships with their outside law firms in ways never before seen in the legal market. And clients have

not been reluctant to exercise their new leverage.

Over the past five years, clients have talked increasingly about enhancing the "value"

they receive for the legal services they purchase, 14 and it has become increasingly clear that what they mean by "value" is efficiency, predictability, and cost effectiveness in the delivery of legal services, quality being assumed.15 This has led many corporate

law departments to retain more work in-house thereby reducing their reliance on outside counsel. Indeed, the 2013 Altman Weil Chief Legal Officer Survey16 found that,

among the 207 CLO respondents, 44 percent indicated that they had shifted work to in-house lawyers during the previous 12 months, and 30.5 percent said that they had reduced the total amount of work sent to outside counsel.17 Moreover, some 29 per

cent of respondents indicated that they intended to decrease their overall use of outside counsel in the next 12 months, and only 15 percent said they expected to increase such use.18 Consistent with these responses, 47 percent of CLOs indicated that they had decreased their budgets for outside counsel during 2013 (a figure that compares

to 39 percent in 2012 and 25.4 percent in 2011 ). 19

Interestingly, the same client focus on enhanced value in the delivery of legal services

may now be evident in a subtle but potentially important shift in the allocation of business within the legal market. In a recent survey conducted by Advancelaw, 20 general counsel

at 88 major companies were asked about their willingness to move high stakes (though not necessarily "bet the company") work away from "pedigreed firms" (essentially de

fined as Amlaw 20 or Magic Circle firms) to non-pedigreed firms, assuming a 30 percent difference in overall cost. 21 Of the respondents, 7 4 percent indicated they would be in

clined to use the less pedigreed firm, with only 13 percent saying they would not.22 In a related question, respondents were asked whether, based on their own experiences,

lawyers at the most pedigreed firms were more or Jess responsive than their counterparts at other firms. Some 57 percent of respondents said that they found lawyers at

pedigreed firms less responsive, while only 11 percent said they found them more.23

Similar results were reflected in the Altman Weil CLO Survey, where 40.5 percent of respondents indicated that they had shifted work to lower priced outside law firms in the preceding 12 months.24

14 This concept was embodied in the "Value Challenge" program launched by the Association of Corporate Counsel in 2008. See www.acc.com/valuechallenge/.

15 Obviously, corporate general counsel are concerned about the quality of legal advice they receive. Increasingly, however, quality is viewed as the "labia stakes" necessary to play in the game to begin with and not a factor for deciding which firm should be awarded a particular piece of work Stated differently, offering high quality legal advice is essential to getting on a general counsel's list to begin with, but once on the list, it is likely that work will be awarded on the basis of which firm the general counsel believes can deliver the services most efficiently, predictably, and cost effectively.

16 Alman Well, Inc., 2013 Chief Legal Officer Survey: An Altman Wei/ Flash Survey, Nov. 2013 ("Altman Well CLO Survey").

17 /d. atp. 10. 18 /d. atp. 4. 19 /d. atp. 17. 20 AdvanceLaw is an organization that vets law firms for quality, efficiency, and dient service and shares performance informa

tion with its membership of some 90 general counsel of major global companies, induding the likes of Google, Panasonic, Nike, eBay, Orade, Deutsche Bank, Kellogg, Yahoo, 3M, ConAgra, Nestle, and Unilever. See http://www.advancelaw.com.

21 The current cost premium for anAmLaw 20 firm relative to an AmLaw 150 or 200 firm is typically far more than 30 percent. As of November 2013, based on Peer Monitor data, the spread between the average standard and worked rates of AmLaw 100 firms and those of AmLaw 2nd 100 firms averaged 22 peroenl And, of course, the average for aiiAmLaw 100 firms is significantly lower than for AmLaw 20 firms alone.

22 The survey question and results are set out at http://hbrblogs.files.wordpress.com/2013/10/badnews-biglaw_580r2.gif. 23 !d.

24 Altman Weil CLO Survey, at p. 1 0. 8


What these results suggest is that brand value - in this case the brand value of the largest and historically most prestigious firms in the legal market -- may be losing some of its luster as increasingly savvy general counsel select outside law firms based on considerations of price and efficiency and not on reputation alone. Further tantalizing evidence for this conclusion is provided in the 2013 Counsellink Enterprise Legal Management Trends Report released in October.25 That report compared the billings of the "Largest 50" U.S. law firms (i.e., firms with more than 750 lawyers) with those of firms in the 200 to 500 lawyer range, the latter being defined as "Large Enough" firms.26 The report found that three years ago, "Large Enough" firms accounted for 18 percent of all of the billings in the Counsel link data base, while the "Largest 50" firms accounted for 26 percent. In 2013, the share of "Large Enough" firms had risen to 22 percent, while the share of the "Largest 50" firms had declined to 20 percent. 27

Looking at high fee work, the Counsel link Trends Report found a similar pattern, at least in respect of high fee litigation matters. Based on the past three years of billing history for litigation matters with total billings of at least $1 million, the report found that "Large Enough" firms nearly doubled the portion of such work they received, growing their share from 22 percent in 2010 to 41 percent in 2013. 28

Challenges of Growth as a Strategy

Against this background, we can return to our initial question -- whether the dominant role played by growth in the strategic thinking of most law firms continues to make sense given the significant changes that have occurred in the legal market? The most common justifications given for a focus on growth include (i) the desire to achieve "economies of scale", (ii) the necessity of creating an "ever expanding pie" to provide opportunities for younger lawyers and especially younger partners, (iii) the need to diversify to protect a firm against cyclical downturns in specific practices, and (iv) the requirements for a larger market footprint to better serve the needs of clients. While there is some validity to all of these arguments, they must be balanced against the potential problems created by growth - particularly rapid growth.

As to the desire to achieve economies of scale, it must be noted at the outset that this is a pecuiliar strategic objective for an industry that continues to be largely reliant on an hourly-billing model. Economies of scale, as an economic concept, are focused on the creation of efficiencies that allow producers to lower costs and thereby create a competitive advantage. In the context of the legal industry, however, adding more lawyers (all of whom bill at ever increasing hourly rates) is the antithesis of what economies of scale are supposed to produce. Even if we assume, however, that economies of scale may be important in the legal industry, there are limits on the benefits that can be derived from growth.

25 Counsellink, "Enterprise Legal Management Trends Report- 2013 Mid-Year Edition: The Rise of'Large Enough' Law Firms." Oct 2013 ("Counsellink Trends Report"). This report uses data available through the Counsel link Enterprise Legal Management platform, an a-billing system. Currently. the data base indudes 2 million invoices representing more than $10 billion in legal spend and well over 300,000 matters over the past four years.

26 The report explains that the term "Large Enough" is applied to these firms "because firms of this size generally have fullservice capabilities across a broad array of practice areas and have the capacity to appropriately staff and handle oomplex and also high-volume, repetitive legal matters." Counsellink Trends Report, p.4.

27 /d. at p. 5. These figures, and others induded in the Counsellink Trends Report, are based on rolling 12-month totals end-ing on June 30 of each relevant year.

28 /d. at p. 6. 9


Observers of the legal market have commented for some time that the benefits of scale seem to diminish once a law firm exceeds 100 lawyers or so, and that is particu

larly true if the law firm has multiple offices. 29 Moreover, a comparison of the number

of lawyers in Am Law 200 firms and the profits per partner of such firms shows that there is very low correlation between firm size and profitabil ity. 30 This conclusion was

recently confirmed by an analysis of Peer Monitor data for some 132 firms reporting their financial results for 2012. These results showed a very weak relationship be

tween profits per partner and firm size, as well as overall margin (i.e., profit as a percentage of revenue) and firm size. Indeed, firm size had a negative relationship with

reported margin figures. Similarly, a regression analysis using 2013 Peer Monitor data from 130 firms showed a very low correlation between firm size and office count with reported expenses per lawyer or with expenses as a percentage of overall firm rev

enue.31 Additionally, whatever the potential benefits of economies of scale, the size needed for a firm to achieve such benefits has undoubtedly been lowered in recent years as a result of substantial improvements in technology which have allowed smaller firms to "punch above their weight." 32

From a strategic point of view, however, the real problem with growth in this context

is not just that economies of scale tend to diminish above a certain size. It is rather that, once a firm achieves a certain size, diseconomies of scale can actually set in.

Large firms with multiple offices -- particularly ones in multiple countries -- are much more difficult to manage than smaller firms. They require a much higher investment of resources to achieve uniformity in quality and service delivery and to meet the ex

pectations of clients (described above) for efficiency, predictability, and cost effectiveness. They also face unique challenges in maintaining collegial and collaborative

cultures, particularly in the face of rapid growth resulting from mergers or large-scale lateral acquisitions. In other words, pursuing growth for the purpose of achieving economies of scale can be a mixed blessing.

A similar analysis can be applied to the use of growth as a primary means of creating

opportunities for younger partners. While it is true that larger firms may have broader reputations and better name recognition, factors that could be helpful to

younger partners in seeking to develop or expand client relationships, it is also true (as described above) that the importance of "brand" as a factor that is considered by clients in selecting outside counsel has diminished in recent years.

29 In 2003, Ward Bower of Altman Weil noted:

For over 30 years, ... [survey data) has shown, generally. that there are no economies of scale in private law practice. Larger firms almost always spend more per lawyer on staffing, occupancy, equipment, promotion, malpractice and other non-personnel insurance coverages, office supplies and other expenses than do smaller firms. This is counterintuitive, in the sense that larger firms should be able to spread fixed costs across a larger number of lawyers, reducing per lawyer costs, overall. However, that principle does not take into account the excess plant and equipment capacity necessary to support growth, or the increases in staff and communications costs as firms become larger.

Ward Bower, "Mining the Surveys: DISeconomies of Scale?" Altman Weil, Inc. repcrt, 2003.

30 Ed Wesemann, "What Is the Optimum Size for a Law Firm?" hllp://edweseman.com/artides/profitability/2011/03/16/what-is-the-optimum-size-for-!Haw-firml. Wesemann notes that profitability does appear to correlate with two other factors, both related to location. First, firms headquartered or having their largest office in New Yorl<, Chicago, Washington, Los Angeles, or San Francisco are generally more profitable than similar firms in other cities. And, firms with more than one office are generally less profitable than firms of the same size having only one office, at least until firms exceed 200 lawyers or so in size.

31 Based on analysis by Peer Monitor staff. 32 See I an Wimbush, "Economies of Scale Needed to Set Up a Firm Have Actually Fallen," The Law Society Gazette,

Sept, 24, 2013. Wimbush notes that "[b]amers to entry to the legal marl<et have been lowered in recent years, largely due to advances in technology, for example using Cloud-based IT systems."

10


It would seem that, to maximize new business opportunities for younger partners and others, it would be wiser for firms to focus their energies less on growth and more on the issues that clients care about- responsiveness, efficiency, cost effectiveness, and the like. We will have more to say about that below.

As to the need for firms to diversify their practices, there is obviously wisdom in the notion of attempting to diversify risk by having enough practices to weather a temporary downturn in one or two. That fact, however, does not mean that firms will be successful in moving into areas that are outside their traditional markets or areas of competence -- at least not in the short term. Moreover, given the increased willingness of firms in recent years to weed out "underperforming" partners and practices, the use of risk diversification as a rationale for growth rings somewhat hollow.

Finally, as to the concern about needing a larger market footprint to serve client needs, this can certainly be a legitimate strategic issue for some firms. A firm focused on high-end capital market transactions might well need offices in key capital market centers around the world. An IP firm serving the high tech and biotech industries might see value in offices in Silicon Valley, Route 128, the Dulles corridor, Research Triangle Park, and Austin. A labor and employment law boutique might well justify offices in key major employment centers around the country. Or an energy focused firm might need offices in Houston, Calgary, the Middle East, and Central Asia. But while it may be important for firms in particular markets to have sufficient size to handle large, complex, high-volume matters for clients, even this imperative has its limits. As previously noted, in the Counsellink Trends Report, firms having 200 to 500 lawyers were regarded as "large enough" for these purposes.33

The real point is that a particular firm's decision to grow should be made in the context of a clear strategic vision of a market segment that the firm can realistically expect to serve. There is nothing wrong with growth per se, and indeed organic, demand-led growth resulting from a firm's successful expansion of client relationships can be very healthy. But growth for growth's sake is not a viable strategy in today's legal market. The notion that clients will come if only a firm builds a large enough platform or that, despite obvious trends toward the disaggregation of legal services, clients will somehow be attracted to a "one-stop shopping" solution is not likely a formula for success. Strategy should drive growth and not the other way around. In our view, much of the growth that has characterized the legal market in recent years fails to conform to this simple rule and frankly masks a bigger problem -- the continuing failure of most firms to focus on strategic issues that are more important for their long-term success than the number of lawyers or offices they may have.

Changing Strategic Focus

To address the concerns of clients for more efficient, predictable, and cost effective legal services, law firms must focus their attention on re-thinking the basic organizational, pricing, and service delivery models that have dominated the market for the past several decades. While some firms have engaged in such reviews and launched innovative new models to better compete in the current market environment, most have not.

33 See note 26 supra. 11


In its 2013 Law Firms in Transition Survey report,34 Altman Weil describes the responses

of some 238 managing partners and chairs of U.S. law firms with 50 or more lawyers to a

number of questions about their firms' willingness to change their basic operational mod

els. Interestingly, the law firm leaders surveyed clearly understand that the legal market

has changed in fundamental ways, with substantial majorities agreeing that permanent

changes in the market include more price competition (95.6 percent), focus on improved

practice efficiency (95.6 percent), more commoditized legal work (89.7 percent), more

non-hourly billing (79.5 percent), and more competition from non-traditional service

providers (78.6 percent).35 And 66.7 percent of respondents indicated that they believe

the pace of change in the legal market will increase going forward.36 And yet, only ami

nority of firms has undertaken any significant changes to their basic business models.

More specifically, 44.6 percent of those surveyed indicated that their firms had taken

some steps to improve the efficiency of their legal service delivery,37 mostly in the form

of changing project staffing models to include part-time and contract lawyers and out

sourcing some (primarily non-lawyer) functions. 38 Some 45 percent reported that their

firms had made significant changes in their strategic approach to partnership admis

sion and retention, primarily in the form of tightening standards or practices for admis

sion to the equity partner ranks. 39 And 29 percent of firm leaders indicated that their

firms had changed their strategic approaches to pricing since 2008.40

When asked to rank their overall confidence level (on a 0 to 10 scale) in their firms' ability to

keep pace with the challenges in the new legal marketplace, the law firm leaders participat

ing in the survey produced a median rating of7 (in the "moderate" range), with only 12.9

percent indicating a "high" level of confidence.41 When asked, however, to rate their part

ners' level of adaptability to change (again on a 0 to 10 scale), the median rating dropped to

5 (in the "low" range), with only 2.2 percent indicating a "high" level of adaptability.42

The law firm leaders participating in the survey were also asked how serious they be

lieve law firms are about changing their legal service delivery model to provide greater

value to clients (as opposed to just reducing rates). Again using a 0 to 10 scale, re

spondents produced a median rating of 5 (in the "low" range).43 That compared to a

median rating of 3 given by corporate chief legal officers when asked the same ques

tion in October 2012.44

The lack of commitment to genuine change reflected in these results seemed con

firmed by responses to another question posed to survey participants. Asked to list

the greatest challenges their firms face in the next 24 months, the top four answers

from respondents (which constituted just over 50 percent of all responses) were all in

ternally focused issues aimed at protecting the status quo of the law firm and not at

becoming more responsive to clients.45

34 Thomas S. Clay, 2013 Law Firms in Transition: An Altman Wei/ Flash Survey, Altman Weil,lnc., May 2013 ("Altman Weil Report").

35/d. at p. 1. 36 !d. at p. 3. 37 /d. at p. 9.

38 /d. at p. 26. 39/d. at p. 18.

40 /d. at p. 8. In a related response, only 31 .5 percent of respondents indicated that their firms are primarily proactive in promoting the use of alternative fee strategies with their clients. /d. at p. 54.

41 !d. at p. 4. 42 /d. at p. 6.

43 !d. at p. 12. 44 !d. at p. 14.

45 /d. at pp. v-vi. The top four priorities listed included increasing revenue (15.2 percent), developing new business (14.6 percent), growth (12.4 percent), and profitability (10.7 percent). /d. at 62.

12


Indeed, adding value for clients was only eighth on the list of twelve items (mentioned

by 5.6 percent of survey participants) and improving efficiency in service delivery was

eleventh on the list (mentioned by only 2.8 percent of respondents).46

Against this background, it is somewhat surprising that a majority of the respondents

to the Altman Wei I survey nonetheless believe that growth (in terms of lawyer head

count) is required for their firms' continued success. Indeed 55.7 percent of those

surveyed responded affirmatively to that question, with only 35.7 percent responding

negatively.47 This is surely puzzling in the wake of five years of tepid demand growth and stagnant productivity and with little prospects of a quick turnaround in either of

those conditions. One possible explanation is that law firm leaders feel constrained to articulate some kind of strategic vision to help their firms weather the current storm,

and the message that we need to "build a bigger boat" is more politically palatable

than a message that we need to fundamentally change the way we do our work.

Unfortunately, however, for most law firms, only a commitment to re-think and revise their

basic models for managing their professional talent (partners, associates, and others); for

delivering their legal services; and for pricing their work is likely to produce competitive success in the long run. This is particularly true if one considers the possibility that the legal

market may be currently poised for what could be a dramatic reordering based on the same type of disruptive forces that have reordered many other businesses and industries.

In an intriguing recent article in the Harvard Business Review, Clay Christensen, Dina

Wang, and Derek van Bever argue exactly that.48 As they note:

In our research and teaching at Harvard Business School, we emphasize the impor

tance of looking at the world through the lens of theory - that is, of understanding the forces that bring about change and the circumstances in which those forces are op

erative: what causes what to happen, when and why .... Over the past year we

have been studying the professional services, especially consulting and law, through the lens of those theories to understand how they are changing and why ....

We have come to the conclusion that the same forces that disrupted so many

businesses, from steel to publishing, are starting to reshape the world of consulting [and law]. The implications for firms and their clients are significant.

The pattern of industry disruption is familiar: New competitors with new business

models arrive;49 incumbents choose to ignore the new players or to flee to

46 /d. at p. 62. 47 /d. at p. 35. 48 Clayton M. Christensen, Dina Wang, and Derek van Bever, "ConsuHing on the Cusp of Disruption," Harvard Business Re

view, Oct. 2013. p. 107. 49 It is interesting to note that, in 2013, we continued to see the emergence of a wide variety of non-traditional service

providers vying for market share in the legal space. This was particularly evident in the United Kingdom where sweeping changes to the regulation of legal practice enacted in 2007 have spawned a variety of "alternative business structure" ("ABS") arrangements that permit outside investments in law firms and the formation of muHi-disciplinary partnerships in which firms owned by a variety of professionals and investors may offer a wide range of services, including legal services. In two noteworthy developments, DLA Piper announced its investment (along with other private investors) in Riverview Law, a combined barristers' chambers and solicitors' practice to offer fixed-fee commercial services for small- and mediumsized companies. See www.riverviewiaw.com/. And British Telecom decided to spin out its motor claims division, commercialize it with an ABS license, and offer claims services to other corporations operating large vehicle fleets. See "BT Launches Legal Service for Corporate Customers," Fleet News, Apr. 3, 2013, www.fleetnews.co.uklnews/2013/3/4/btlaunches-legal-service-for-corporate-customers/46362/. Meanwhile, in the United Slates, non-traditional service providers also continued to gain ground in the legal market. See Bill Henderson, "Bringing the Disruption of the Legal Services Market into the Law School Classroom," The Legal Whiteboard, Law Professor Blogs, LLC, Nov. 23, 2013, listing 16 non-tradttional providers currently working actively in the U.S. market. And, in Singapore, it was recenUy reported that Ernst & Young plans to expand its professional services to the legal services area in the Asia Pacific region. See Yun Kriegler, "E& Y Hires Former HSF Partner as It Mulls Singapore Legal Services Launch," The Lawyer, Dec. 10, 2013.

13


higher-margin activities; a disrupter whose product was once barely good

enough achieves a level of quality acceptable to the broad middle of the mar

ket, undermining the position of longtime leaders and often causing a "flip" to a new basis of competition. 5°

Pointing to the changed and enhanced role of corporate general counsel, the widespread availability of comparative information about law firms and their services, the

trend toward disaggregation of services by in-house counsel, and the emergence of new service delivery models and businesses, the authors argue that a disruptive transformation in the legal market may well already be underway. Although acknowl

edging that the relatively small number of genuinely "bet-the-company" matters may be immune from most of these pressures, the article concludes that ongoing disruption is virtually inevitable.

The ... [professionals] we spoke with who rejected the notion of disruption in their industry cited the difficulty of getting large partnerships to agree on revolutionary

strategies. They pointed to the purported impermeability of their brands and reputations. They claimed that too many things could never be commoditized in consulting [or law]. Why try something new, they asked, when what they've been doing has worked so well for so long?

We are familiar with these objections - and not at all swayed by them. If our long study of disruption has led us to any universal conclusion, it is that every industry will eventually face it. The leaders of the legal services industry would once have

held that the franchise of the top law firms was virtually unassailable, enshrined in practice and tradition - and, in some countries, in law. And yet disruption of these firms is undeniably under way ....

*

[A]Ithough we cannot forecast the exact progress of disruption ... , we can say

with utter confidence that whatever its pace, some incumbents will be caught by surprise. The temptation for market leaders to view the advent of new competitors

with a mixture of disdain, denial, and rationalization is nearly irresistible. U.S. Steel posted record profit margins in the years prior to its unseating by the min

imills; in many ways it was blind to its disruption. As we and others have observed, there may be nothing as vulnerable as entrenched success. 51

Conclusion So, to end where we began - is growth important as a dominant law firm strategy? For some firms, the answer is no doubt yes, but for most firms the answer must surely be no. Far more important is to focus on those factors that can help reshape the firm to be

more responsive to the needs of clients, to deliver services in a more efficient and predictable manner, and to develop pricing models that reflect more accurately the value of

the services being delivered. For most firms, in other words, the goal should be not to "build a bigger boat" but rather to build a better one.

50 Christensen, Wang, and van Bever, note 49 supra, at 107-08. 51 /d. at p. 114.

14


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Defendant.


DECLARATION OF TODD M. FRIEDMAN IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR THE AWARD OF ATTORNEY’S FEES, COSTS, AND

INCENTIVE AWARDS

I, TODD M. FRIEDMAN, declare:

1. I am one of the attorneys for the Plaintiffs in this action, Sherryl Medina, Danny Allen,

and John Carter Williams (“Plaintiffs”). I am an attorney licensed to practice law in the

State of California since 2001, the State of Illinois since 2002, and the State of

Pennsylvania since 2011. I have been continuously licensed in California since 2001,

Illinois since 2002, and Pennsylvania since 2011, and am in good standing with the

California State Bar, Illinois State Bar, and Pennsylvania State Bar. I have litigated cases

in both state and federal courts in California and Illinois. I am also admitted in every

Federal district in California and have handled federal litigation in the federal districts of

California. I am admitted to practice before this Court pro hac vice.

2. The declaration is based upon my personal knowledge, except where expressly noted

otherwise.

3. I submit this declaration in support of the Plaintiffs’ Motion for Attorneys’ Fees and

Costs, and Plaintiff’s Incentive Award.


2

I. Class Counsel’s Experience

4. The Law Offices of Todd M. Friedman, P.C. has been preliminarily appointed as Class

Counsel in this Action. I am informed and believe that Class Counsel are qualified and

able to conduct this litigation as a class action.

5. As one of the main plaintiff litigators of consumer rights cases in Southern of California,

I have been requested to and have made regular presentations to community

organizations regarding debt collection laws and consumer rights.

6. I have extensive experience prosecuting cases related to consumer issues. My firm, The

Law Offices of Todd M. Friedman, P.C., in which I am a principal, has litigated over

1000 individual based consumer cases and litigated over 200 consumer class actions.

These class actions were litigated in federal courts in California, as well as California

State Courts. Approximately 100% percent of my practice concerns consumer litigation

in general, with approximately 90% of my class action experience involving consumer

protection, and approximately 30% percent of my class action practice involves

litigating claims under the UCL.

7. My experience in litigating class actions and my years in practice allow me to provide

outstanding representation to the Settlement Class. I will continue to strive to fairly,

responsibly, vigorously and adequately represent the putative class members in this

action.

8. The Law Offices of Todd M. Friedman has served as plaintiff’s counsel in at least the

following class action cases involving various class actions claims consumer rights

claims, where a settlement was reached on a class-wide basis, and have achieved over

$160,000,000 in class-wide relief for consumers:

a. Dancer v. L.A. Times, BC472154 (L.A. Superior Court) (common fund class-

wide settlement of $3 million to $4 million granted final approval);

b. Couser v. Comenity Bank, 3:12-cv-02484-MMA-BGS (S.D. Cal.) ($8.475

million class-wide settlement achieved and granted final approval);

c. Stemple v. QC Financial Services Group of California, Inc., 3:12-cv-01997-

CAB-WVG (S.D. Cal.) (certified class achieved by motion, and subsequent

class-wide settlement of $1.5 million achieved, with final approval granted);


3

d. Couser v. Apria Healthcare, Inc. 8:13-cv-00035-JVS-RNB (C.D. Cal.) (common

fund class-wide settlement of $400,000 to $750,000, granted final approval);

e. Abdeljalil v. General Electric Capital Corporation, 12-CV-02078-IEG-RBB

(S.D. Cal.) (class-wide settlement with common fund of $6.125 million

achieved, preliminary approval granted, final approval granted);

f. Fox v. Asset Acceptance, 3:13-CV-00922-DMS-BGS (S.D. Cal.) (common fund

of $1 million in class-wide relief achieved, granted final approval);

g. Friedman v. LAC Basketball Club, Inc., 2:13-cv-00818-CBM-AN (C.D. Cal.)

(class-wide settlement achieved and granted final approval);

h. Gerich et al. v. Chase Bank USA et al. Case No 1:12-cv-5510 (N.D. Ill.) (class-

wide settlement of $34 million, granted final approval);

i. Than Zaw v Nelnet, Inc., Penal Code § 632 class – (Achieved class-wide

settlement of $1,188,110, granted final approval of court);

j. Medeiros v HSBC, (common fund settlement of between $4.5 million and $6.5

million achieved, final approval granted);

k. Ann Fox v. Spectrum Club Holding Company et al., Case No. 2:14-CV-06766-

PSG-FFMx (class-wide settlement, final approval granted);

l. Sayan Aboudi v. T-Mobile USA, Inc., Case No. 3:12-cv-02169-BTM-NLS (class-

wide settlement in TCPA case, with common fund of $2.5 million to $5 million,

with average per class member payment of $500, final approval granted);

m. Andrew Roseman v. BGASC, LLC, et al., Case No. EDCV 15-1100-VAP (SPx)

(C.D. Cal.) (class-wide relief achieved, final approval granted);

n. Everado Gonzalez v The Scotts Company, Case No. BC577875, Consolidated

with Case No: BC570350 (LASC) (class-wide settlement of $925,000 in wage

and hour class action on behalf of approximately 603 employees achieved, final

approval granted);

o. Payton v Luxe Valet, Case No. BC588462 (LASC) (class-wide settlement in

wage and hour independent contractor misclassification class action, on behalf of

1,800 employees, settled for $2.4 million, final approval granted);

p. Shelby v Two Jinn, Inc., Case No. 2:15-cv-03794-AB-GJS (C.D. Cal.) (EFTA

class action involving no cognizable actual damages, with net worth of company


4

of $25 million, settled for non-reversionary common fund of $457,000, despite

liability under 15 U.S. Code § 1693m(a) likely being only $250,000; final

approval granted, zero objections);

q. Couser v Dish One Satellite, Case No. 5:15-cv-02218-CBM-DTB (C.D. Cal.)

(TCPA class action, final approval granted);

r. Couser v Dish One Satellite, Case No. RIC 1603185 (Riverside S.C.) (Penal

Code 632 class action, preliminary approval granted);

s. De La Paz v Accurate Courier NCA LLC, Case No. 16CV00555 (Santa Cruz

County Superior Court) (PAGA and Labor Code class action, final approval

granted);

t. Ross v Zurixx LLC, Case No. 34-2016-00190874 (Sacramento SC) (UCL, FAL

and CLRA class action alleging false advertising for real estate educational

courses, non-reversionary common fund settlement for over $600 per class

member, final approval granted);

u. Eubank v Terminix International, Inc., Case No. 3:15-cv-00145-WQH-JMA

(PAGA settlement reached in wage and hour action on behalf of pest control

technicians, final approval granted);

v. Holland v Tenet Healthcare Corporation, Case No. 15CVP0226 (Superior Court

of San Luis Obispo County) (PAGA settlement reached in wage and hour action

on behalf of nurses, final approval granted);

w. Jonathan Weisberg, v. HD Supply, Inc., Case No. 15-cv-08248-FMO (MRWx)

(class-wide settlement in TCPA class action, settled for $1.225 million, final

approval granted);

x. Miler v Pacific Auto Wash Partners, Case No. 30-2015-00813013-CU-OE-CXC

(wage and hour class action, final approval granted);

y. Sonia Barrientos v Law Office of Jeffrey H. Jordan, Case No. 2:15-cv-06282-

JAK-GJS (FDCPA/RFDCPA letter class action, settled on class wide basis, final

approval granted);

z. Tahmasian v Midway Rent A Car, Case No. 30-2015-00813013-CU-OE-CXC

(LASC) (PAGA and Labor Code class action, final approval granted);


5

aa. Craig Cunningham v Lexington Law Firm, Case No. 1:17-cv-00087-EJF (N.D.

UT) (TCPA class action MDL involving solicitation prerecorded voice calls

made by a third party, vicarious liability alleged, preliminary approval pending).

bb. Sheena Raffin v Medicredit, Inc., et al., Case No. 2:15-cv-04912-MWF-PJW

(C.D. Cal.) (Cal. Penal Code § 632.7 class action certified by Hon. George H.

King Ret under Rule 23(b)(2) and (b)(3) by contested motion on behalf of 11,000

class members whose calls were recorded without knowledge or consent, settled

for $5 million, final approval granted);

cc. Fernandez v Reliance Home Services, Inc. Case No. BC607572 Los Angeles

Superior Court (wage and hour plus PAGA class action, final approval granted);

dd. Anne Wolf v Hewlett Packard Company, Case No. 5:15-cv-01221-TJH-GJS

(C.D. Cal.) (CLRA class action certified by contested motion on behalf of tens of

thousands of class members who purchased printer that was falsely advertised to

include Smart Install feature, settled on a wider multi-state, multi-product basis,

final approval granted);

ee. Jaylinda Girardot et al v. Bail Hotline Bail Bonds, Inc., Case No. BC700131 Los

Angeles County Superior Court (wage and hour plus PAGA class action, final

approval granted);

ff. Ryoo Dental, Inc. v OCO Biomedical, Inc., Case No. 8:16-cv-01626-DOC-KES

(TCPA fax blast class action, settled on class wide basis, final approval granted);

gg. Wondra Curtis v The Anthem Companies, Inc., Case No. 8:16-cv-01654-DOC-

JCG (wage and hour class action for off the clock work, settled on class wide

basis, final approval granted);

hh. Weinberg v Clarient, Inc. Case No. 56-2017-00494914-CU-NP-VTA Ventura

County Superior Court (Rosenthal Fair Debt Collection Practices Act class

action settled on behalf of 1,830 class members for privacy infringements

through clear envelope debt collection letters, final approval granted);

ii. Aliav v Sunset Eats, LLC, Case No. BC655401 Los Angeles Superior Court

(false advertising class action on behalf of approximately 10,000 class members,

settled on class wide basis; preliminary approval pending);


6

jj. Alfred Zaklit, et al. v. Nationstar Mortgage LLC, Case No. 5:15-cv-02190-CAS-

KK (C.D. Cal.) (Cal. Penal Code § 632.7 class action certified by contested

motion under Rule 23(b)(2) and (b)(3) on behalf of over 40,000 class members

whose calls were recorded without knowledge or consent, preliminary approval

pending);

kk. Mark Silva v. Olson and Co. Steel Case No. 17CV001045 Contra Costa County

Superior Court (wage and hour class action settled on behalf of 563 class

members, preliminary approval granted);

ll. Richards v. CoreCivic of Tennessee, LLC, Case No. 1:17-cv-01094-LJO-JLT

(E.D. Cal.) (wage and hour class action settled for approximately $3 million,

preliminary approval pending);

mm. Manopla v. Home Depot USA, Inc. Case No. 15-1120 (D. N.J.) (TCPA class

action, preliminary approval pending);

nn. Bonilla et al. v. Windsor Fashion, LLC Case No. CIVDS1723088 (wage and

hour class action settled on behalf of over 5,000 employees, preliminary

approval pending);

oo. Cawthorne v Rush Truck Centers of California, Inc. Case No. 5:17-cv-01541-

JGB-SP (wage and hour class action on behalf of 560 employees, preliminary

approval granted);

pp. Lizama v Medical Data Systems, Inc. Case No. 34-2017-00210986-CU-NP-GDS

(Sacramento County Superior Court) (Penal Code 632.7 class action alleging

illegal call recording, settled for $2.2 million on behalf of over 30,000

consumers, preliminary approval pending);

qq. Romano v SCI, Inc. Case No. 2:17-cv-03537-ODW-JEM (wage and hour class

action for independent contractor misclassification, settled for $2.5 million on

behalf of 230 employees, preliminary approval pending);

rr. Edward Makaron v. Enagic USA, Inc., Case No. 2:15-cv-05145-DDP-E (C.D.

Cal.) (TCPA class action certified on behalf of approximately 2,000,000 class

members under Rule 23(b)(2) and 23(b)(3), subsequently settled on a Rule

23(b)(2) and 23(b)(3) basis, preliminary approval pending);


7

ss. Audrey Hernandez v. Pegasus Building Services, Inc., SDSC Case No. 37-2018-

00023176-CU-OE-CTL (consolidated wage and hour and PAGA class action on

behalf of janitorial workers, preliminary approval pending);

tt. Walsh v Fry’s Electronics, Inc. Case No. MSC18-01681 (Contra Costa County

Superior Court) (Gift Card Act, CLRA, UCL, FAL class action settled for class-

wide public injunctive relief, preliminary approval pending);

uu. In RE HP Firmware Update Litigation, Case No. 5:16-cv-05820-EJD (N.D.

Cal.) (co-lead class counsel in consolidated Unfair Competition class action

alleging HP pushed a firmware update on consumers’ printers that blocked their

ability to use third party ink cartridges, preliminary approval granted, final

approval pending);

vv. Nishimoto v T&S Business Corporation, Case No. 34-2017-00211426

(Sacramento County Superior Court) (wage and hour and PAGA class action on

behalf of janitorial workers, preliminary approval pending);

ww. Rodriguez v. Experian Information Solutions, Inc. et. al. Case No. 2:15-

cv-01224-RAJ (W.D. Wash.) (FCRA class action for improper credit pulls;

certified under Rule 23 by contested motion, and settled on class-wide basis,

preliminary approval pending);

xx. Ahmed v HSBC Bank USA, Case No. 5:15-cv-02057-FMO (SPx) (C.D. Cal.)

(TCPA class, preliminary approval pending);

yy. Garcia et. al. v. HMS Host, Inc., Case Jo. 17-cv-03069-RS (N.D. Cal.) (wage

and hour class action, preliminary approval granted); and

zz. Aiken v. Malcolm Cisneros, A Law Corporation, Case No. 5:17-cv-02462-JLS-

SP (C.D. Cal.) (Fair Debt Collection Practices Act class action, settled on class

wide basis, preliminary approval pending).

9. My firm also certified the following cases as class actions under Rule 23 by contested

motion and was appointed class counsel:

a. Anne Wolf v Hewlett Packard Company, Case No. 5:15-cv-01221-TJH-GJS

(C.D. Cal.) (class action certified by contested motion on behalf of tens of

thousands of class members who purchased printer that was falsely advertised to

include Smart Install feature);


8

b. Caldera v. American Medical Collection Association, (C.D. Cal.) Case No. 2:16-

cv-00381-CBM-AJW (TCPA class action certified by contested motion)

c. Alfred Zaklit, et. al. v. Nationstar Mortgage LLC, Case No. 5:15-cv-02190-CAS-

KK (C.D. Cal.) Cal. Penal Code § 632.7 class action certified under Rule

23(b)(2) and (b)(3) on behalf of class members whose calls were recorded

without knowledge or consent);

d. D'Angelo Santana vs Rady Children's Hospital, Case No. 37-2014-00022411-

CU-MT-CTL (San Diego Superior Court) Confidentiality of Medical

Information Act, Cal. Civ. Code § 56 et seq.;

e. Edward Makaron v. Enagic USA, Inc., Case No. 2:15-cv-05145-DDP-E (C.D.

Cal.) (TCPA class action certified on behalf of approximately 2,000,000 class

members under Rule 23(b)(2) and 23(b)(3)); and

f. Rodriguez v. Experian Information Solutions, Inc. et. al. Case No. 2:15-cv-

01224-RAJ (W.D. Wash.) (FCRA class action for improper credit pulls; certified

under Rule 23).

g. Sheena Raffin v Medicredit, Inc. et. al., Case No. 2:15-cv-04912-MWF-PJW

(C.D. Cal.) (Cal. Penal Code § 632.7 class action certified by Hon. George H.

King Ret. under Rule 23(b)(2) and (b)(3) on behalf of class members whose calls

were recorded without knowledge or consent);

h. Stemple v. QC Financial Services Group of California, Inc., 3:12-cv-01997-

CAB-WVG (S.D. Cal.) (certified class achieved by motion, and subsequent

class-wide settlement);

i. Abdeljalil v. General Electric Capital Corporation, 12-CV-02078-IEG-RBB

(S.D. Cal.) (certified class achieved by motion, and subsequent class-wide

settlement); and

j. McCurley and Deforest v Royal Seas Cruises, Inc. Case No. 17-cv-00986-BAS-

AGS (certified class achieved by motion in TCPA class action on behalf of over

2 million class members).


9

II. Overview of Law Offices of Todd M. Friedman, P.C.’s Efforts in this Action

A. CONTINGENT NATURE OF ACTION

10. This action was commenced on September 3, 2015, in the U.S. District Court for the

Southern District of Florida (the “Court”) titled Medina v. Enhanced Recovery Company,

LLC, Case No. 2:15-cv-14342-JEM (the “Litigation”), alleging putative class claims

under the Telephone Consumer Protection Act (“TCPA”) turning on ERC’s alleged

practices of calling individuals without their consent. This settlement is a result of three

years of diligence.

11. The history of the case is evident from the docket. However it is important to note that

this case was brought on a contingency basis, with my office and my co-counsel’s office

having advanced all costs of litigation, time and effort to date on behalf of the Class

Members, without having been paid anything. The case was brought purely on

contingency.

B. LAW OFFICES OF TODD M. FRIEDMAN, P.C.’S LODESTAR

12. Law Offices of Todd M. Friedman, P.C. has maintained contemporaneous time records

since the commencement of this action. To date, I have incurred 105.1 hours of attorney

time for this case, with a total lodestar of $60,542.00. This figure does not include the

estimated hours for preparing the final approval hearing papers, responding to any

objectors, appearing at the hearing and overseeing the settlement adminsitration. I

anticipate my firm will expend approximately 20-25 hours working on these matters, in

addition to the hours described herein. My billing rate is $725 per hour in this case and

the billing rate for Thomas E. Wheeler is $370 per hour.

C. LAW OFFICES OF TODD M. FRIEDMAN, P.C.’S COSTS

13. My firm has incurred litigation costs in this matter in the amount of $1,998.88, for which

my firm is seeking reimbursement. These costs are comprised of costs for filing the

complaint, transmitting copies of ECF filings to the Honorable Court, and costs

associated with attending the mediation. The breakdown of costs is as follows:

Description Cost Filing Fee $400.00 FedEx Courtesy Copies to CA Court $14.11 Car Transportation Fees for Mediation $247.38


10

Flight for Mediation $846.40 Hotel for Mediation $344.99 Meals for Mediation $146.00 TOTAL $1,998.88

14. Should my firm incur costs through final approval of this action, Plaintiffs will seek

reimbursement of such costs, as set forth in the Settlement Agreement. If there are any

objectors to the Settlement, my office reserves the right to take their depositions, which

would be an additional expense (there have been no objectors to date). Importantly,

regardless of the costs that my firm incurs or is reimbursed through a Court Order, such

costs will be borne solely by Defendant, and will not detract from Class Members’

recoveries.

D. REASONABLENESS OF HOURLY RATES

15. Law Offices of Todd M. Friedman, P.C.’s hourly rates are reasonable in respect to the

ranges charged by comparable law firms in the State of California. My billing rate is

$725 per hour in this case and the rate of Thomas E. Wheeler is $370 per hour.

16. Regarding my rate, I have been practicing law since 2001, and am the managing partner

of one of the most active consumer protection law firms in California. I have been

counsel of record on hundreds of class action lawsuits, over 50 of which have resolved

on a class-wide basis, and approximately 10 of which were certified by contested motion

after considerable litigation.

17. The hourly rates sought herein have been approved by numerous courts. Recently in the

case of Sheena Raffin v Medicredit, Inc. et. al., Case No. 2:15-cv-04912-MWF-PJW

(C.D. Cal.), Judge Fitzgerald of the Central District of California explicitly found that

my rate of $725 and Mr. Wheeler’s rate of $370 per hour were all reasonable. The court

awarded us fees and granted final approval of a class action settlement, which my office

had litigated for over three years. Our fees were also recently approved as reasonable at

these same rates in the case of Jaylinda Girardot et al v. Bail Hotline Bail Bonds, Inc.,

Case No. BC700131 Los Angeles County Superior Court, where Judge Berle found at

oral argument that our hourly rates were fair and reasonable and granted approval.

Judge Hayes of the Southern District of California recently granted our fee petition in a

PAGA settlement that my office oversaw. The court approved our hourly rates at the

same rates sought in this matter and found in pertinent part: “The attorneys’ fees and


11

costs sought are reasonable and appropriate. The rates that Plaintiffs’ Counsel have

charged are reasonable and within the range of rates customarily charged by attorneys of

comparable skill, qualifications, and experience.” See Eubank v. Terminix

International, LLC, Case No. 3:15-cv-00145-WQH-LL (CA. S.D.) Dkt. No. 76.

18. Mr. Wheeler is a graduate of U. Penn Law and an associate at my firm. He has worked

extensively on consumer protection matters, including class actions, during his three

years with my firm. His work includes assisting on the Caldera and Makaron matters

cited above, a certified TCPA class action. In light of his experience, an hourly rate of

$370 is warranted, and is further warranted in light of customary rates for associates on

the Laffey Matrix.

19. I anticipate the Law Offices of Todd M. Friedman, P.C. will incur an additional 20

hours drafting the final approval papers, preparing for the final approval hearing, and

overseeing the settlement administration, including addressing any questions by

settlement Class Members (there are zero objectors and two opt-outs to date), addressing

and responding to any objections, as well as filing status reports after final approval.

20. With regard to a bare bones loadstar amount, our current billing records reflect

approximately 105.1 hours of time. Based on these rates, and the accompanying time

entries for each corresponding individual, the loadstar estimate for my office is $60,542.

21. Here is a breakdown and summary of the fees incurred by my office in connection with

this Case:

Name Number of

Hours Rate/Hr Total Todd M. Friedman 61.0 $725.00 $44,225 Thomas E. Wheeler 44.1 $370.00 $16,317 TOTAL 105.1 $60,542

22. Based on the foregoing, I submit that our request for an award of $478,500 is

reasonable. This represents an almost null multiplier based on current billing records for

all firms combined.


12

23. I also would submit that in light of the fact that Plaintiffs took an active role in the

investigation and litigation of this case, that Mr. William, Mr. Allen, and Ms. Medina

should each be awarded an incentive award of $7,500. Plaintiffs each diligently

participated throughout the case in investigating the allegations, providing information

and cocumentation necessary to the litigation, participated in motions and settlement

discussions, and ensured that the Class Members received the substantial recovery made

available to them. I believe the incentive award sought is reasonable and fair under the

circumstances.

I declare under penalty of perjury under the laws of California and the United States of

America that the foregoing is true and correct, and that this declaration was executed on May 22,

2019.

By:/s/ Todd M. Friedman Todd M. Friedman, Esq.


1




Defendant.


DECLARATION OF JOSHUA B. SWIGART IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR THE AWARD OF ATTORNEY’S FEES, COSTS, AND

INCENTIVE AWARDS

I, JOSHUA B. SWIGART, declare as follows:

1. I am a Partner of the law firm Hyde & Swigart, APC (“H&S”), counsel of record for

Plaintiffs in the above-captioned matter against Defendant Enhanced Recovery Company,

LLC dba ERC (“Defendant”). I am over the age of 18 and am fully competent to make

this declaration.

2. I am a partner of the law firm of Hyde & Swigart and co-counsel of record for Plaintiff in

the above-captioned action.

3. I am a member in good standing of the bars of the State of California and District of

Columbia, Washington State, and Michigan. I am also admitted in every federal district in

California, the Ninth Circuit Court of Appeals, and the Supreme Court of the United

States. I also have handled federal litigation in Arizona, Washington, Minnesota,

Tennessee and Texas. I am writing this declaration in support of Plaintiffs’ Motion for

Award of Attorneys’ Fees, Costs, and Service Awards. Except as otherwise noted, I have

personal knowledge of the facts set forth in this declaration, and could testify competently

to them if called upon to do so.


2

4. I have been appointed as one of Class Counsel in this action.

5. Since the inception of this case, my firm and I have been involved in investigating this

matter, thoroughly reviewing the facts, heavily litigating this matter, and subsequently

reaching a class settlement of this matter after arms-length bargaining and all day private

mediation.

6. I respectfully submit this declaration in support of the Plaintiffs’ Unopposed Motion for

Attorney’s Fees, Costs, and Incentive Awards for the named Class Representative

Plaintiffs. Based on my experience, and for all the reasons detailed herein, I believe the

requested attorneys’ fees, costs, and incentive awards are fair and reasonable.

CLASS COUNSEL’S EXPERIENCE

7. Since my admission to the California bar in 2003, I have been engaged exclusively in the

area of consumer rights litigation, primarily in the area of fair debt collections, the defense of

debt collection lawsuits, and have litigated hundreds of class action lawsuits under a variety

of consumer protection statutes, including the Telephone Consumer Protection Act,

California’s Invasion of Privacy Act, and Fair Debt Collection Practices Act.

8. My firm, Hyde & Swigart, in which I am a principal, has litigated over 5,000 cases in the

past eleven years. My firm has several offices, including in San Diego, California; Phoenix,

Arizona, Dallas, Texas, and Minneapolis, Minnesota. Hyde & Swigart has extensive

experience in consumer class actions and other complex litigation. My firm has a history of

aggressive, successful prosecution of consumer actions, specifically under CIPA, Fair Debt

Collection Practices Act, and Telephone Consumer Protection Act.

CONSUMER RELATED EXPERIENCE & RESULTS

9. Hyde & Swigart has extensive experience in consumer related issues. A brief summary of a

non-inclusive list of notable decisions are as follows:

a. Knell v. FIA Card Services, N.A., et al., 12-CV-426 AJB(WVG) (S.D. Cal. 2014)

(Co-lead counsel on a California class action involving privacy rights under Cal.

Penal Code § 632 et seq. Class relief provided for a common fund in the amount of

$2,750,000. Counsel obtained final approval on August 15, 2014);

b. Hoffman v. Bank of America, N.A., 12-CV-539 JAH(DHB) (S.D. Cal. 2014) (Co-lead

counsel on a California class action involving privacy rights under Cal. Penal Code §


3

632 et seq. Class relief provided for a common fund in the amount of $2,600,000.

Finally approved on November 6, 2014);

c. Zaw v. Nelnet Business Solutions, Inc., et al., C 13-05788 RS (N.D. Cal. 2014) (Co-

lead counsel on a California class action involving privacy rights under Cal. Penal

Code § 632 et seq. Class relief provided for a common fund in the amount of

$1,188,110. Final approval granted on December 1, 2014);

d. CashCall, Inc. v. Superior Court, 159 Cal. App. 273 (2008) (Allowing the original

plaintiff who lacked standing in a class action to conduct pre-certification discovery

of the identities of potential plaintiffs with standing);

e. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) (Co-lead counsel on a class

action involving privacy rights under Cal. Penal Code § 632 et seq. Appeals court

reversing the trial courts granting of Defendant’s motion for summary judgment after

case was certified);

f. Engelen v. Erin Capital Management, LLC, et al., No. 12-55039 (9th Cir. 2013, not

for publication, D.C. No.: 3:10-cv-01125-BEN-RBB) (Reversing the lower court’s

granting of summary judgment to the defendant debt collector on the basis of the

bona fide error defense and remanding for further proceedings);

g. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-GPC-WVG

(S.D. Cal.) (TCPA class action where Defendant’s motion for summary judgment was

denied holding that a single call or text message with the use of an ATDS may be

actionable under the TCPA);

h. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-NLS, 2014

U.S. Dist. LEXIS 9146 (S.D. Cal.) (Defendant’s motion to dismiss or in the

alternative to strike the class allegations was denied finding that debt collection calls

were not exempt from coverage under the TCPA);

i. Iniguez v. The CBE Group, Inc., 13-CV-00843-JAM-AC, 2013 U.S. Dist. LEXIS

127066 (E.D. Cal.) (The court denying Defendant’s motion to dismiss and to strike

class allegations holding that the TCPA applies to any call made to a cellular

telephone with an ATDS);


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j. Catala v. Resurgent Capital Servs., L.P., 08-CV-2401 NLS, 2010 U.S. Dist. LEXIS

63501 (S.D. Cal.) (Co-lead counsel on a class settlement involving the Fair Debt

Collection Practices Act);

k. Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104 (C.D. Cal. 2005) (Summary

judgment was granted sua sponte in favor of a debtor where debt collector violated

the Fair Debt Collection Practices Act, when its employees failed to disclose the debt

collector’s identity and the nature of its business in the messages left on the debtor’s

answering machine). This case has now been followed in at least four different

districts throughout the country.

l. Edstrom v. All Servs. & Processing, 2005 U.S. Dist. LEXIS 2773 (N.D. Cal. 2005)

(Numerous omissions from a letter sent by a debt collector to members of a

homeowner’s association, and a statement requiring any dispute to be put in writing,

violated 15 U.S.C. § 1692g(a) of the FDCPA and Cal. Civ. Code §1788.17. The

FDCPA required strict compliance; actual confusion on debtors’ part was not

required);

m. Forsberg v. Fid. Nat’l Credit Servs., 2004 U.S. Dist. LEXIS 7622 (S.D. Cal. 2004)

(Plaintiff alleged sufficient facts to support his claim that a collection company, in its

initial communication, did not comply with the statutory requirements for notice of

validation of debts under the FDCPA);

n. Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (N.D. Cal. 2005) (Court struck

Defendant’s counter claim of the underlying debt in a fair debt action based on lack

of subject matter jurisdiction);

o. Geoffroy, et al. v. Washington Mutual Bank, 484 F. Supp. 2d 1115 (S.D. Cal. 2007)

(Court striking down Defendant’s arbitration agreement as both procedurally and

substantively unconscionable);

p. Yang v. DTS Financial Group, 07-CV-1731 JLS (WMc) (Holding that for-profit debt

settlement companies are covered under the FDCPA and can be construed as “debt

collectors” under 15 U.S.C. § 1692a(6));

q. Mason v. Creditanswers, 2008 U.S. Dist. LEXIS 68575 (Holding that a forum

selection clause causing a California consumer to litigate its claims seems contrary to

the polices advanced by certain consumer protection statutes);


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r. Myers v. LHR, Inc., 543 F.Supp.2d 1215 (2008) (Recognizing actual and statutory

damages in the amount of $92,000 in a default judgment based on violations of the

State and Federal collection statutes);

s. Yates v. Allied Intl Credit Corp., 578 F. Supp. 2d 1251 (2008) (Holding a debtor’s

claim based on the FDCPA stemming from the filing of a false police report was not

subject to the litigation privilege under Cal. Civ. Code § 47(b));

t. Owings v. Hunt & Henriques, et al., 2010 U.S. Dist. LEXIS 91819 (S.D. Cal.)

(Recognizing that the Service Members Civil Relief Act applies to CA National

Guard Members and collection attorney’s false declaration violates the FDCPA);

u. Heathman v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS 98742 (S.D.

Cal. 2013) (Holding that failing to properly list and disclose the identity of the

original creditor in a state collection pleading is a violation of the Fair Debt

Collection Practices Act under 15 U.S.C. § 1692(e).

10. I have undergone extensive training in the area of consumer law. The following is a list of

recent training conferences I attended:

a. National Consumer Law Conference; Oakland, CA – 2003;

b. National Consumer Law Conference; Kansas City, MO – 2004;

c. National Consumer Law Conference; Boston, MA – 2004;

d. Five-day extensive one-on-one training with The Barry Law Office; San Diego,

CA –2005;

e. Three-day FDCPA Mini-Conference; Minneapolis, MN – 2005;

f. Four-day extensive one-on-one training with The Barry Law Office; Minneapolis,

MN – 2005;

g. Four-day National Association of Consumer Advocates Conference; Minneapolis,

MN – 2005;

h. Four-day National Consumer Law Center Conference; Nashville, TN –2008;

i. Three-day National Consumer Law Center Conference; Portland, OR -2008;

j. Speaker at a Three-day National Consumer Law Center Conference; San Diego,

CA - 2009;

k. Speaker ABA/JAG presentation to military service members and counsel; MCRD,

San Diego CA – 2010;


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l. Speaker ABA teleconference on defending consumer credit card debt and related

issues; San Diego, CA – 2010;

m. Three-day National Consumer Law Center Conference; Seattle, WA -2011;

n. Two-day FDCPA Mini-Conference; New Orleans; LA - 2012;

o. Two-day National Consumer Law Center Conference on the FDCPA; Seattle,

WA - 2012;

p. National Consumer Law Center Conference; Baltimore, MD - 2013;

q. Speaker ABA National Conference, Business Litigation Section; Trends in

Consumer Litigation; San Francisco, CA - 2013;

r. Speaker National Consumer Law Center; Nuts and Bolts of TCPA Litigation; San

Antonio, TX - 2014;

s. Speaker San Diego County Bar Association; Convergence of the FDCPA and

Consumer Bankruptcy; San Diego, CA - 2014;

t. Guest Speaker at California Western School of Law; Consumer Law class - 2014;

u. 8th Annual Class Action Seminar; San Francisco, CA – 2014.

v. Speaker regarding class actions at the NCLC National Conference held in

Anaheim, CA in 2016.

11. I am a member in good standing of the following local and national associations:

a. National Association of Consumer Advocates;

b. Federal Bar Association, Southern District of California Chapter;

c. San Diego County Bar Association;

d. Riverside County Bar Association;

e. San Bernardino County Bar Association;

f. Enright Inns of Court (2011-2014);

g. American Association for Justice.






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CONTINGENT NATURE OF ACTION

13. Plaintiffs’ counsel’s hourly rates include many factors beyond personal compensation,

including non-billed office personnel, equipment, insurance, research materials, office and

other overhead expenses. Consumer litigation inevitable involves large corporations, which

have the capacity to bring enormous resources to bear that individual consumers are simply

unable to meet on their own. Companies vigorously resist settling cases. Thus, if plaintiffs’

attorneys are not compensated at a rate that allows them to maintain the technological – as

well as intellectual and professional resources – to match corporate defendants’ exhaustive

resources, consumers simply cannot prevail. Few attorneys have the means and ability to

take these cases, and if those that do are not compensated at a rate that allows them the

chance of prevailing on behalf of consumers, these cases will not be brought, and the

remedial purpose of the consumer statutes at issue will fail.

14. Unfortunately, there are very few attorneys who regularly represent plaintiffs in cases

involving consumer rights statutes. This is most likely due to the specialized and complex

nature of the statutes at issue, due to the specialized and complex nature of consumer class

actions, and due to the relative financial resources of the respective parties, whereby the

consumer is often forced to “match resources” with the defendant and litigate his or her

rights right up to, and sometimes through, the date of trial.

15. The average consumer does not have funds to litigate this type of case. Therefore, in further

justification of Class Counsel’s fees, I note that we take such cases on a contingency basis,

advance all litigation costs and expenses, and do not charge the consumer one penny up

front. This action has required Hyde & Swigart to spend time on this litigation that could

have been spent on other matters. At various times during the litigation of this action, this

case has consumed my time as well as my firm’s resources. My firm has not paid anything

for our work on this case since its inception. It is my opinion that law firms in such a position

expect to receive a multiplier in cases such as these because of the risk taken, the extent to

which firms are unable to take on other cases, the delay in getting paid, and the costs and

expenses that my firm must advance in order to litigate such cases.

16. If this case were to be lost, we would not get paid. This alone would justify a fee rate well in

excess of the fees we charge for doing hourly work.


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HYDE & SWIGART’S LODESTAR

17. Hyde & Swigart has maintained contemporaneous time records since the commencement of

this action. As of the date of this declaration, my firm has incurred 66.4 hours of attorney

time in this case, with a total lodestar of $46,812.00. My hourly rate sought in this lodestar

calculation is $705. These hours consist of initial research and review of the complaint,

reviewing and revising the mediation brief, mediation, settlement discussions with opposing

counsel and continued discussions with co-counsel. This figure does not include hours for

traveling to, or appearing at the final approval hearing, and further overseeing the settlement

administration from thereon.

18. All attorneys and staff at Hyde & Swigart are instructed to maintain contemporaneous time

records reflecting the time spent on this and other matters. The regular practice at Hyde &

Swigart is for all attorneys and staff to keep time records, maintained on a daily basis, and

describing tasks performed in 0.1-hour increments. Firm policy further requires all staff and

attorneys to enter their time into an electronic time-keeping system on a daily basis. I also

review and audit the time on a regular basis.

19. Hyde & Swigart’s total lodestar will grow as we continue to finalize the settlement process

and close the litigation of this action. The claims period will last for one month after the

filing of this brief, and Hyde & Swigart’s commitment of time and labor to this case will

continue until (and likely beyond) that date. Hyde & Swigart will continue to assist Class

Members with any individual inquiries regarding the settlement or claims process, will

oversee settlement administration and the claims resolution process.

20. From 2009 through present Hyde & Swigart’s approved hourly rate for both attorneys and

support staff has steadily increased. In 2013, in Malta v. Wells Fargo Home Mortgage, 10-

CV-1290-BEN (NLS) [Dkt. 92], I was approved for an hourly rate of $545. More recently, I

have been approved for an hourly rate of $595 in Lemieux v. EZ Lube, Inc. et al., 12-cv-

01791-BAS-JLB (S.D. Cal.) [Dkt. No. 83]; and Hoffman v. Bank of America, N.A., 12-cv-

00539-JAH-DHB (S.D. Cal.) [Dkt. No. 67]. I was approved for an hourly rate of $595 in an

unpublished opinion by the Court of Appeal of the State of California in William Mount, et

al., v. Wells Fargo Bank, N.A., No. B260585 (Cal. Ct. App., Feb. 10, 2016). More recently,

in Abdeljalil v. GE Capital Retail Bank, 12-cv-2078 JAH (MDD) (S.D. Cal. Dec. 22, 2016) I

was approved for $605 per hour. In Hooker v. Sirius XM Radio Inc., No. 13-cv-3 AWA


9

(LRL); Maxin v. RHG & Company, Inc. No. 16-2625 JLS (BLM) (S.D. Cal.); and Giffin v.

Universal Protein Supplements Co., BC613414 (Los Angeles Superior Court) I was approved

for an hourly rate of $625. Thereafter, I was approved for an hourly rate of $675 in

Dowlatshahi v. McIlhenny Company, No. 30-2017-00911222-CU-NP-CXC (Orange County

Super. Ct.). Most recently, I was approved for an hourly rate of $705 in Ronquillo, et al v.

Transunion Rental Screening Solutions, et al., No. 17-cv-129-JM-BLM, (C.D. Cal., May 9,

2019). Correspondingly, I am requesting an hourly rate of $705 with this Motion.

21. Hyde & Swigart’s hourly rates are reasonable in respect to the ranges charged by comparable

law firms in the State of California.

HYDE & SWIGART’S COSTS

22. Hyde & Swigart maintains all books and records regarding costs expended on each case in

the ordinary course of business. I have reviewed the records of costs expended in this matter.

To date, Hyde & Swigart has incurred $1,789.72 in expenses related to travel and

photocopying costs related to this action.

INCENTIVE AWARDS

23. I further submit to the Court that the Class Representative Plaintiffs, Sherryl Medina, Danny

Allen, and John Carter Williams, should be awarded the requested incentive award of

$7,500 each in light of the active role of Plaintiffs in the investigation and litigation of this

case. Plaintiffs each diligently participated throughout the case in investigating the

allegations, providing information and cocumentation necessary to the litigation,

participated in motions and settlement discussions, and made themselves available for

depositions and trial if necessary. Thus, I believe the incentive award sought is reasonable

and fair under the circumstances.


foregoing is true and correct. EXECUTED at San Diego, California, this 22nd day of May, 2019.

/s/ Joshua B. Swigart Joshua B. Swigart





Defendant.


DECLARATION OF EMILY KOMLOSSY IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR THE AWARD OF ATTORNEY’S FEES, COSTS, AND

INCENTIVE AWARDS

I, Emily Komlossy, declare as follows:

1. I am a member of good standing of the Bar of this Court, and a shareholder in the

law firm of Komlossy Law, P.A. (the “Firm”), liaison counsel for Plaintiffs in the above-

captioned action. This declaration is based on my own personal knowledge and/or the firm’s

records of the matters stated herein and, if called upon, I could and would competently testify

thereto.

2. I submit this declaration in support of Plaintiffs’ Memorandum of Law in Support

of Reimbursement of Fees and Expenses in this action.

3. The Firm was actively engaged in all aspects of the litigation of the Action from

its inception, including, inter alia, meeting in person with counsel for defendants to prepare a

Joint Scheduling Report, the preparation and review of motions and documents, review of certain

documents produced by defendants and input into the preliminary settlement papers.

4. The information in this declaration regarding the time spent by attorneys of the

Firm was prepared using printouts prepared and maintained by the Firm in the ordinary course of

business. I oversaw the activities in the litigation and reviewed the printouts, as well as the


2

backup documentation where necessary and appropriate. The purpose of the review was to

confirm both the accuracy of the entries on the printouts as well as the necessity for, and

reasonableness of, the time committed to the litigation. As a result of the review, I believe that

the time reflected in the Firm’s lodestar is reasonable in amount and necessary for the effective

and efficient prosecution and resolution of the litigation.

5. The total number of hours spent on this litigation by the attorneys in the Firm is

57.8 hours. The total lodestar amount for the Firm based on the Firm’s current rates is

$34,610.00. The rates shown below are the usual and customary rates set by the Firm for each

individual, and have been approved by courts in this state. A breakdown of the lodestar is as

follows:

Total Hours and Lodestar

NAME AND STATUS TOTAL HOURS RATE TOTAL LODESTAR

Emily C. Komlossy (P) 38.3 $700.00 $26,810.00 Ross A. Appel (A) 19.5 $400.00 $7,800.00 Total: 57.8 $34,610.00 (P) - Partner; (A) - Associate

6. The Firm also incurred a total of $265.83 in unreimbursed expenses in connection

with the prosecution of the action. The expenses incurred are reflected in the books and records

of the Firm. These books and records are prepared from expenses vouchers and check records

and are an accurate record of the expenses incurred. The expenses include:

EXPENSE CATEGORY AMOUNT Filing/Service Fees $150.00 Postage/Fedex $68.58 Gas/Food (Meet and Confer) $47.25 Total: $265.83


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I declare under penalty of perjury of the laws of the United States of America that the

foregoing is true and correct. Executed on May 22, 2019, in Hollywood, Broward County,

Florida.

/s/ Emily C. Komlossy Emily Komlossy


united states district court for the southern … · 2019. 5. 30. · united states district court...

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