Rupa Marya v. Warner Chappell Music Inc

Filing 323

NOTICE OF MOTION AND MOTION for Attorney Fees Plaintiffs' Notice of Motion and Motion for Award of Attorneys' Fees and Expenses and for Incentive Compensation Awards; Memorandum of Points and Authorities in Support Thereof filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. Motion set for hearing on 6/27/2016 at 09:30 AM before Judge George H. King. (Attachments: # 1 Declaration of Randall S. Newman, # 2 Declaration of Daniel J. Schacht, # 3 Declaration of Kara M. Wolke, # 4 Proposed Order) (Manifold, Betsy)

1 BETSY C. MANIFOLD (182450)
[e-mail]
2 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
3 750 B Street, Suite 2770
San Diego, CA 92101
4 Telephone: [phone]
Facsimile: 619/234-4599
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Lead Counsel for Plaintiffs
6 and the Settlement Class
7 [ADDITIONAL COUNSEL APPEAR
ON SIGNATURE PAGE]
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA 10
WESTERN DIVISION
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12 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
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Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC,
16 INC., et al.,
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Defendants.

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Lead Case No. CV 13-04460-GHK (MRWx)
PLAINTIFFS’ NOTICE OF MOTION
AND MOTION FOR AWARD OF
ATTORNEYS’ FEES AND EXPENSES
AND FOR INCENTIVE
COMPENSATION AWARDS;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
THEREOF
Date:
Time:
Room:
Judge:

June 27, 2016
9:30 a.m.
650
Hon. George H. King,
Chief Judge

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TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE

2 ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on June 27, 2016, at 9:30 a.m., or as soon
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4 thereafter as this matter may be heard before the Honorable George H. King in
5 Courtroom 650 at the Edward R. Roybal Federal Building, 225 E. Temple Street,
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Los Angeles, California 90012, plaintiffs Good Morning To You Productions Corp.,
Robert Siegel, Rupa Marya d/b/a Rupa & The April Fishes, and Majar Productions,
LLC, will respectfully move the Court to grant an award of attorneys’ fees and
expenses and for incentive compensation awards in connection with final approval
of the Settlement of the Action, and entry of the [Proposed] Final Order and
Judgment, submitted herewith.
This Motion is made pursuant to the Court’s Preliminary Approval Order,
entered on March 7, 2016. Dkt. 316. As part of the Settlement, Defendants have

13 reserved the right to challenge the request for attorneys’ fees and expenses.
14 Plaintiffs’ are unaware if Defendants Warner/Chappell Music, Inc. and Summy15 Birchard, Inc. will oppose this Motion.
16

This Motion is based upon this Notice of Motion and Motion for Award of

17 Attorneys’ Fees and Expenses and for Incentive Compensation Awards, Plaintiffs’
18 Memorandum of Points and Authorities in Support Thereof, the Declaration of Mark
19 C. Rifkin, the Class Action Settlement Agreement (“Agreement”), the Fifth
20 Amended Complaint, any reply in further support, oral argument of counsel, the
21 complete Court files and record in the above-captioned matter, and such additional
22 matters as the Court may consider.
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Respectfully submitted,

24 Dated: April 27, 2016

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

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By:

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/s/ Betsy C. Manifold
BETSY C. MANIFOLD

FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
RANDALL S. NEWMAN (190547)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

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Lead Counsel for Plaintiffs
and the Settlement Class

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HUNT ORTMANN PALFFY
NIEVES DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]

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Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY PRONGAY &
MURRAY LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160
Attorneys for Plaintiffs

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TABLE OF CONTENTS

1

Page No.

2
3 I. 
4 II. 

INTRODUCTION ............................................................................................. 1 

5

A. 

The Excellent Results in the Action Justifies the Fee Request............... 3 

6

B. 

Plaintiffs’ Counsel’s Lodestar Easily Justifies the Fee Request............. 9 

7

C. 

Plaintiffs’ Counsel’s Expenses are Reasonable .................................... 14 

8

D. 

Plaintiffs Are Entitled to Incentive Compensation Awards ................. 15 

9

E. 

The Reaction of the Class Also Favors Final Approval ....................... 17 

10 III. 
11

THE REQUEST FOR PAYMENT OF ATTORNEYS’ FEES AND
OUT-OF-POCKET EXPENSES IS APPROPRIATE ...................................... 2 

CONCLUSION ............................................................................................... 17 

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1

TABLE OF AUTHORITIES
Page No.

2
3

Cases 

4 Anderson v. Nextel Retail Stores, LLC, 2010 U.S. Dist.
No. CV 07-4480-SVW (FFMx),
LEXIS 71598 (C.D. Cal. June 30, 2010) ...................................................... 16
5
Bd. of Trade
of
6 Arenson v. F. Supp. 1349of City Ill.Chicago,
372
(N.D.
1974) ............................................................... 11
7 Boeing Co. v. Van Gemert,
444 U.S. 472 (1980) ........................................................................................ 3
8
Phinney, Bass & Green, P.A.,
9 Boston & Maine Corp. v. Sheehan, ......................................................................... 10
778 F.2d 890 (1st Cir. 1985)
10 Bradburn Parent Teacher Store, Inc. v. 3M (Minn. Mining and Mfg. Co.),
513 F. Supp. 2d 322 (E.D. Pa. 2007) ............................................................ 16
11
Passport Int’l Prods.,
12 Catalog v. CV 03-8514 WJR (CWx), 2004 U.S. Dist.
No.
LEXIS 26798 (C.D. Cal. Dec. 17, 2004) ...................................................... 12
13
v. Illumination Arts, Inc.,
14 Curtis No. C12-0991JLR, 2013 U.S. Dist.
LEXIS 167456 (W.D. Wash. Nov. 21, 2013) ............................................... 12
15
Star Bldg. Corp.
16 Diamond F.3d 503 (4th Cir.v. Freed,
30
1994) ........................................................................... 12
17 Fantasy, Inc. v. Fogerty,
94 F3d 553 (9th Cir. 1996) ............................................................................ 12
18
v. Victoria Secret Stores, LLC,
19 FernandezCV 06-04149 MMM (SHx), 2008 U.S. Dist.
No.
LEXIS 123546 (C.D. Cal. July 21, 2008) ....................................................... 5
20
Fantasy,
21 Fogerty v. U.S. 517 Inc., ...................................................................................... 11
510
(1994)
22 Franco v. Ruiz Food Prods., Inc.,
No. 1:10-cv-02354-SKO, 2012 U.S. Dist.
23
LEXIS 169057 (E.D. Cal Nov. 27, 2012) ....................................................... 3
24 Garcia v. Gordon Trucking, Inc.,
No. 1:10-CV-0324 AWI SKO, 2012 U.S. Dist.
25
LEXIS 160052 (E.D. Cal. Oct. 31, 2012) ....................................................... 5
26
27
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1
2
3

Glass v. UBS Fin. Servs.,
No. C-06-4068 MMC, 2007 U.S. Dist.
LEXIS 8476 (N.D. Cal. Jan. 26, 2007) ......................................................... 16
Hanlon v. Chrysler Corp.,
150 F.3d 1011 (9th Cir. 1998) ................................................................. 3, 4, 5

4 Harris v. Marhoefer,
24 F.3d 16 (9th Cir. 1994) ............................................................................. 14
5
Hensley v. Eckerhart,
6
461 U.S. 424 (1983) ........................................................................................ 3
7 IBEW Local 697 Pension Fund v. Int’l Game Tech., Inc.,
No. 3:09-cv-00419-MMD-WGC, 2012 U.S. Dist.
8
LEXIS 151498 (D. Nev. Oct. 19, 2012) ......................................................... 4
9 In re Am. Apparel, Inc. S’holder Litig.,
No. CV 10-06352 MMM (JCGx), 2014 U.S. Dist.
10
LEXIS 184548 (C.D. Cal. July 28, 2014) ..................................................... 14
11 In re Cenco, Inc. Sec. Litig.,
519 F. Supp. 322 (N.D. Ill. 1981) ................................................................. 11
12
In re Dad’s Kid Corp. Baseball Card Trademark &
13 Copyright Infringement Score Group, Inc.,
No. MDL 958 WJR (CTX), 1994
14
WL 794773 (C.D. Cal. Dec. 13, 1994) ......................................................... 13
15 In re Heritage Bond Litig.,
No. 02-ML-1475 DT, 2005 U.S. Dist.
16
LEXIS 13555 (C.D. Cal. June 10, 2005) ........................................... 4, 15, 16
17 In re Immune Response Sec. Litig.,
497 F. Supp. 2d 1166 (S.D. Cal. 2007) ........................................................... 4
18
In re Ins. Brokerage Antitrust Litig.,
19
No. 04-5184 (GEB), 2007 U.S. Dist.
LEXIS 40729 (D.N.J. June 5, 2007) ....................................................................... 16
20
In re Media Vision Tech. Sec. Litig.,
21
913 F. Supp. 1362 (N.D. Cal. 1995) ............................................................. 14
22 In re Mego Fin. Corp. Sec. Litig.,
213 F.3d 454 (9th Cir. 2000) ..................................................................... 5, 16
23
In re Mego Fin. Corp.,
24
213 F.3d ......................................................................................................... 16
25 In re Nucoa Real Margarine Litig.,
No. CV 10-00927 MMM (AJWx), 2012 U.S. Dist.
26
LEXIS 189901 (C.D. Cal. June 12, 2012) ...................................................... 5
27
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1

In re OmniVision Techs., Inc.,
559 F. Supp. 2d 1036 (N.D. Cal. 2007) .................................................... 4, 14

2 In re Superior Beverage/Glass Container Consol. Pretrial,
133 F.R.D. 119 (N.D. Ill. 1990) .................................................................... 10
3
InvesSys, Inc. v. McGraw-Hill Cos., Ltd.,
4
369 F.3d 16 (1st Cir. 2004) ........................................................................... 11
5 Keith v. Volpe,
501 F. Supp. 403 (C.D. Cal. 1980)................................................................ 11
6
Kerr v. Screen Extras Guild, Inc.,
7
526 F.2d 67 (9th Cir. 1975) ........................................................................... 13
8 Lanard Toys Ltd. v P.C. Woo Inc.,
No. 99-55552, 2000 U.S. App.
9
LEXIS 23801 (9th Cir. Sept. 19, 2000) ........................................................ 12
10 Magnuson v. Video Yesteryear,
No. C-92-4049 DLJ, 1996 WL
11
784564 (N.D. Cal. Dec. 26, 1996) ................................................................ 13
12 Meijer, Inc. v. Abbott Labs.,
No. C 07–05985–CW (N.D. Cal. Aug. 11, 2011) ........................................... 5
13
MNG Corp. v. Andersen (Atl. Rec. Corp.),
14
No. 05-933-AC, 2008 U.S. Dist.
LEXIS 121070 (D. Or. May 14, 2008) ......................................................... 13
15
Mun. Auth. of Bloomsburg v. Commonwealth of Pennsylvania,
16
527 F. Supp. 982 (M.D. Pa. 1981) ................................................................ 11
17 Nat’l Ctr. for Jewish Film v. Riverside Films LLC,
No. 5:12-CV-44-ODW (DTBx), 2012 U.S. Dist.
18
LEXIS 178363 (C.D. Cal. Dec. 14, 2012) .................................................... 12
19 Paul, Johnson, Alston & Hunt v. Graulty,
886 F.2d 268 (9th Cir. 1989) ........................................................................... 4
20
Rabin v. Concord Assets Group, Inc.,
21
No. 89 Civ. 6130 (LBS), 1991 U.S. Dist.
LEXIS 18273 (S.D.N.Y. Dec. 19, 1991) ...................................................... 10
22
Rievman v. Burlington N. R.R. Co.,
23
118 F.R.D. 29 (S.D.N.Y. 1987) .................................................................... 11
24 Roberti v. OSI Sys.,
No. CV-13-09174 MWF (MRW), 2015 U.S. Dist.
25
LEXIS 164312 (C.D. Cal. Dec. 8, 2015) ...................................................... 14
26 Six (6) Mexican Workers v. Arizona Citrus Growers,
904 F.2d 1301 (9th Cir. 1990) ......................................................................... 4
27
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1

Staton v. Boeing Co.,
327 F.3d 938 (9th Cir. 2003) ............................................................. 5, 6, 9, 15

2 Teller v. Dogge,
No. 2:12-CV-591 JCM (GWF), 2014 U.S. Dist.
3
LEXIS 139632 (D. Nev. Sept. 30, 2014) ...................................................... 12
4 Tobias v. Joy Music, Inc.,
204 F. Supp. 556 (S.D.N.Y. 1962) ................................................................ 11
5
Vizcaino v. Microsoft Corp.,
6
290 F.3d 1043 (9th Cir. 2002) ................................................................. 4, 6, 9
7 Washington Shoe Co. v. A-Z Sporting Goods, Inc.,
No. C09-1042RSL, 2013 U.S. Dist.
8
LEXIS 114339 (W.D. Wash. Aug. 12, 2013) ............................................... 13
9 Weeks v. Kellogg Co.,
No. CV 09-08102 (MMM) (RZx), 2011 U.S. Dist.
10
LEXIS 155472 (C.D. Cal. Nov. 23, 2011) ...................................................... 5
11 Wren v. RGIS Inventory Specialists,
No. C-06-05778 JCS, 2011 U.S. Dist. LEXIS 38667 (N.D. Cal. April 1,
12
2011 ............................................................................................................... 15
13

Statutes 

14 17 U.S.C.
§ 505 .................................................................................................. 11, 12, 17
15
Other Authorities 
16
U.S. Const.,
17
art. I, § 8 ........................................................................................................ 12
18

Rules 

19 Fed. R. Civ. P.
23(h) .......................................................................................................... 3, 14
20
21
22
23
24
25
26
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1

Plaintiffs Good Morning to You Productions Corp. (“GMTY), Robert Siegel

2 (“Siegel”), Rupa Marya d/b/a Rupa & The April Fishes (“Marya”), and Majar
3 Productions, LLC (“Majar”) (collectively, the “Plaintiffs”) hereby submit this
4 Memorandum of Points and Authorities in support of their motion for an award of
5 attorneys’ fees and expenses and for incentive compensation awards in connection
6 with final approval of the Settlement of the Action, and entry of the [Proposed]
7 Final Order and Judgment submitted herewith.1
8 I.

INTRODUCTION

9

This unprecedented Action and the extraordinary results achieved – an end

10 to one of the most infamous copyright disputes of all time, a judicial determination
11 that Happy Birthday to You (“Happy Birthday” or the “Song”) is in the public
12 domain, and a fund of up to $14 million to reimburse those who paid Defendants
13 for the Song – would not have been possible had these four Plaintiffs not taken the
14 initiative to bring the Action and had their counsel not worked tirelessly for more
15 than three years without any assurance of success or payment for their services. By
16 any standard, their accomplishment is outstanding. Plaintiffs fully deserve the
17 modest incentive compensation awards they seek, and Plaintiffs’ Counsel have
18 earned the attorneys’ fees and reimbursement of expenses they seek. Indeed,
19 Plaintiffs’ counsel are seeking significantly less attorneys’ fees than the lodestar
20 value of their work in the Action to date (and no attorneys’ fees for their
21 substantial additional work that will be needed to implement the Settlement).
22

As set forth herein, the fee and expense requests are reasonable, justified,

23 and deserving of full approval.
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25

1

Unless otherwise defined herein, this Memorandum of Points and Authorities
incorporates by reference the defined terms set forth in the Revised Class Action
26 Settlement Agreement filed March 3, 2016, and all such terms shall have the same
meaning herein.
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1 II.

THE REQUEST FOR PAYMENT OF ATTORNEYS’ FEES
AND OUT-OF-POCKET EXPENSES IS APPROPRIATE

2
An extraordinary result has been achieved in this Action: the decades-long

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wrongful copyright claim by Warner and its predecessors-in-interest (and of late,
by the Intervenors) has ended.2 With Defendants’ and the Intervenors’ consent, the
Court has been asked to declare that Happy Birthday is in the public domain. In
addition, Defendants have agreed to pay up to $14 million – less the fees and
expenses approved by the Court – to return fees paid by Settlement Class Members
since 1949.
Plaintiffs’ Counsel have devoted more than 9,000 hours, with a combined

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lodestar value of more than $5,178,000 in litigating this risky and complex action,
and have incurred $204,461.40 in unreimbursed expenses to achieve this historic
victory; they have done so with no assurance of success and no assurance of
payment for their work. All four Plaintiffs, as well, devoted many hours to the
successful prosecution of the Action. Documentary filmmaker Jennifer Nelson,
President of Plaintiff GMTY, who filed the first complaint, devoted hundreds of
hours investigating and challenging the disputed copyright claim.
Plaintiffs’ Counsel seek attorneys’ fees in the amount of $4,620,000 (a

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negative multiplier of just 0.892 times their collective lodestar) plus
reimbursement of their costs in the amount of $204,461.40. Three Plaintiffs seek
incentive compensation of $10,000 each, and Plaintiff GMTY seeks $15,000 for
Ms. Nelson’s extraordinary efforts. The results achieved, and their efforts in the
litigation, support their requests.
Significantly, Plaintiffs’ Counsel do not have a “free pass” from Defendants.

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2

The Settlement is described at length in the accompanying Memorandum of
26 Points and Authorities in Support of Plaintiffs’ Motion for Final Approval of
Proposed Class Action Settlement (“Settlement Brief”).
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1 As part of the Settlement, Defendants have reserved the right to challenge the
2 request for attorneys’ fees and expenses. See Revised Settlement Agreement, §
3 8.1.1. Plaintiffs’ Counsel accepted that condition, confident that the results
4 achieved by their hard work – much of which was required by Defendants’
5 extremely vigorous defense of the copyright – support their fee request.3
6

As explained more fully below, Plaintiffs and their counsel are fully

7 deserving of these fee and expense requests.
8

A.

The Excellent Results in the Action Justifies the Fee Request

9

In a successful class action, such as this Action, Rule 23(h) permits the

10 Court to “award reasonable attorney’s fees . . . that are authorized by law or by the
11 parties’ agreement.” Fed. R. Civ. P. 23(h). Section 8.1 of the Revised Settlement
12 Agreement permits Plaintiffs’ Counsel to seek attorneys’ fees; Plaintiffs’ Counsel
13 agreed to seek no more than $4,620,000 (or 33% of the Settlement Fund).
Under the “common fund” or “common benefit” doctrine, “a lawyer who

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15 recovers a common fund for the benefit of persons other than himself or his client
16 is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v.
17 Van Gemert, 444 U.S. 472, 478 (1980). “[A]ttorneys who create a common fund or
18 benefit for a group of persons may be awarded their fees and costs to be paid out of
19 the fund.” See Franco v. Ruiz Food Prods., Inc., No. 1:10-cv-02354-SKO, 2012
20 U.S. Dist. LEXIS 169057, at *42-43 (E.D. Cal Nov. 27, 2012) (citing Hanlon v.
21 Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998)). The Ninth Circuit “has
22 affirmed the use of two separate methods for determining attorneys’ fees,” giving
23 district courts “discretion to use either a percentage or lodestar method.” Hanlon,
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3

Plaintiffs’ Counsel are aware that their “request for attorney’s fees should not
25 result in a second major litigation. Ideally, of course, litigants will settle the
amount of a fee.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (emphasis
26 added). Because of Defendants’ potential reversionary interest in the Settlement
Fund, however, this was unavoidable.
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1 150 F.3d at 1029 (citations omitted). “The percentage method means that the court
2 simply awards the attorneys a percentage of the fund sufficient to provide class
3 counsel with a reasonable fee.” Id. (citing Paul, Johnson, Alston & Hunt v.
4 Graulty, 886 F.2d 268, 272 (9th Cir. 1989)).
5

Generally, under the percentage method, the Ninth Circuit “has established

6 25% of the common fund as a benchmark award for attorney fees.” Hanlon, 150
7 F.3d at 1029 (citing Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d
8 1301, 1311 (9th Cir. 1990)). The 25% “benchmark” in contingent class actions
9 assumes, as happened here, that plaintiffs’ counsel will bear the risk of non10 payment in complex litigation and will provide quality services.
11

The 25% benchmark percentage may be “adjusted upward or downward to

12 account for any unusual circumstances.” Paul, Johnson, Alston & Hunt, 886 F.2d
13 at 272.
14

Indeed, “in most common fund cases, the award exceeds the benchmark.” In

15 re OmniVision Techs., Inc., 559 F. Supp. 2d 1036, 1047-48 (N.D. Cal. 2007);
16 IBEW Local 697 Pension Fund v. Int’l Game Tech., Inc., No. 3:09-cv-0041917 MMD-WGC, 2012 U.S. Dist. LEXIS 151498, at *12-13 (D. Nev. Oct. 19, 2012)
18 (“the benchmark should be thirty percent rather than the twenty-five percent
19 recommended”); In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 117520 76 (S.D. Cal. 2007) (“proposed fee of 25% is consistent, if not below, the average
21 award in similar complex actions”); In re Heritage Bond Litig., No. 02-ML-1475
22 DT, 2005 U.S. Dist. LEXIS 13555, at *58-59, 61 n.12 (C.D. Cal. June 10, 2005),
23 (awarding fee award of 33-1/3% because “courts in this circuit, as well as other
24 circuits, have awarded attorneys’ fees of 30% or more in complex class actions”).
25 Indeed, in Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002), the
26 Ninth Circuit itself approved a fee award of 28% of the $96.8 million settlement).
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1

Ample additional precedent exists in this Circuit and Court for granting fees

2 to plaintiff’s counsel that are equal to or greater than the 33% fee requested herein.
3 See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir. 2000) (affirming
4 award of one-third of the total recovery); In re Nucoa Real Margarine Litig., No.
5 CV 10-00927 MMM (AJWx), 2012 U.S. Dist. LEXIS 189901, at *108 (C.D. Cal.
6 June 12, 2012) (awarding attorneys’ fees of “45 percent of the total monetary
7 amount to be paid by [defendant] to resolve the case”); Weeks v. Kellogg Co., No.
8 CV 09-08102 (MMM) (RZx), 2011 U.S. Dist. LEXIS 155472, at *110 (C.D. Cal.
9 Nov. 23, 2011) (“30 percent figure is reasonable in light of awards in other
10 common fund cases”); Fernandez v. Victoria Secret Stores, LLC, No. CV 0611 04149 MMM (SHx), 2008 U.S. Dist. LEXIS 123546, at *54-55 (C.D. Cal. July 21,
12 2008) (awarding 34% of the value of common fund as attorneys’ fee); Meijer, Inc.
13 v. Abbott Labs., No. C 07–05985–CW, slip op. at 4 (N.D. Cal. Aug. 11, 2011)
14 (awarding attorney’s fee of 33-1/3% of recovery); and Garcia v. Gordon Trucking,
15 Inc., No. 1:10-CV-0324 AWI SKO, 2012 U.S. Dist. LEXIS 160052 (E.D. Cal. Oct.
16 31, 2012) (court approved attorneys’ fees of 33% of the common fund).4
17

Moreover, in common fund or common benefit cases, the Court may also

18 consider injunctive or non-monetary relief in setting attorneys’ fees when the value
19 of the injunctive or non-monetary benefit may be measured. See Staton v. Boeing
20 Co., 327 F.3d 938, 973 (9th Cir. 2003). For example, in Hanlon, 150 F.3d at 1029,
21 the Ninth Circuit “upheld the use of the common fund doctrine to award attorneys’
22 fees after the parties reached a settlement agreement under which Chrysler would
23 replace defective latches on minivans that it had manufactured. Although the
24 [remedy was] injunctive in nature, the agreement bestowed upon each beneficiary
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4

Because of the nature of copyright claims, there are few (if any) class actions
under the Copyright Act. This case was unique.

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1 a clearly measurable benefit: one replacement latch for each minivan owned.”
2 Staton, 327 F.3d at 973-74.
3

When the value of injunctive or non-monetary relief cannot be readily

4 ascertained, the Court “should consider the value of the injunctive relief obtained
5 as a ‘relevant circumstance’ in determining what percentage of the common fund
6 class counsel should receive as attorneys’ fees.” Staton, 327 F.3d at 974 (emphasis
7 added) (citing Vizcaino, 290 F.3d at 1049).
8

An upward departure from the “benchmark” of 25% is warranted here for at

9 least the following four reasons.
10

First, the historic results achieved in the Action easily support an award that

11 is slightly higher than the benchmark. The significance of this unprecedented
12 Action cannot be overstated. It ends a notorious and wrongful copyright claim that
13 eluded judicial review for more than eight decades. It ends Defendants’ and the
14 Intervenors’ claim to own any rights to the Song or to demand payment for use of
15 the Song, which will save the public at least $15 million over the next 21 years. It
16 will declare the Song to be in the public domain. And it provides a substantial cash
17 fund of up to $14 million to be allocated (after Court-approved fees and expenses)
18 among those who paid Defendants to use the Song in the past. Significantly, those
19 Class Members who paid to use the Song during the period June 13, 2009, to the
20 present stand to recover 100% of their payment.
21

While every settlement is a compromise of sorts – and this Settlement is no

22 exception – few settlements accomplish all of the litigation’s main objectives the
23 way this Settlement has. In light of the value of the cash payment as well as the
24 value of the injunctive relief – including, in particular, the present value of the
25 future payments that Defendants and the Intervenors have waived – an attorneys’
26 fee of $4,620,000, which equals 33% of the $14 million Settlement Fund (or just
27 15.9% of the combined value of the Settlement Fund plus the present value of the
28
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1 waived fees, is fully justified). Even if the Court decides not to include the present
2 value of the waived fees in setting the percentage of the attorneys’ fee, the fact that
3 Plaintiffs’ Counsel successfully negotiated for the waiver fully supports a
4 percentage fee award that is slightly higher than the benchmark.
5

Second, the extraordinarily high level of skill of Plaintiffs’ Counsel supports

6 a fee slightly above the benchmark. As the Court knows from observing the work
7 first-hand, the service performed by Lead Counsel and all of Plaintiffs’ Counsel in
8 this case has been of the highest caliber. Plaintiffs’ Counsel faced a determined
9 adversary in Defendants’ Counsel, one of the nation’s finest and most prominent
10 law firms, who were paid well for their services by corporate defendants with deep
11 pockets and every incentive to defend their decades-long copyright claim. To say
12 the least, Defendants’ Counsel put Plaintiffs’ Counsel to the test, and Plaintiffs’
13 Counsel rose to that challenge, providing exceptionally high-quality service from
14 the inception of this Action through to its successful conclusion. Few cases achieve
15 as much notoriety and worldwide acclaim as this Action has, which would not
16 have been possible had Lead Counsel and all of Plaintiffs’ Counsel not provided
17 such outstanding service. In sum, the quality of representation by Plaintiffs’
18 Counsel further warrants a fee award that is slightly higher than the benchmark.
19

Third, the amount of work required from Plaintiffs’ Counsel to withstand

20 Defendants’ extremely vigorous defense strongly supports a fee above the
21 benchmark. Nothing about this case was simple. Aware of the significance of the
22 Action even before it was commenced, Plaintiffs’ Counsel conducted painstakingly
23 thorough legal and historical factual research before filing the first complaint. As a
24 result, Plaintiffs’ theory of the case remained consistent throughout. The Court will
25 recall, on the other hand, the shifting defenses offered by Defendants, each of
26 which required Plaintiffs’ Counsel to conduct even more historical investigation
27 and to respond to even more creative legal arguments. The Court will also recall
28
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1 the 1922 publication of the Song with Summy’s permission but without a
2 copyright notice – the so-called “smoking gun” – that was “mistakenly” not
3 produced by Defendants until July 2015, seven months after the cross-motions for
4 summary judgment were filed. See Declaration of Mark C. Rifkin in Support of
5 Final Approval of Class Action Settlement and Request for Attorneys’ Fees and
6 Expenses (“Rifkin Decl.”), ¶ 41.
7

The nature of the Action, dependent, as it was, on historical documentary

8 evidence – much of which was either missing or obscure – and Plaintiffs’ burden
9 to prove a negative fact (that Defendants did not own a copyright to the Song’s
10 lyrics) made the case particularly difficult to prove. Not only did Plaintiffs’
11 Counsel succeed in doing so, but they succeeded on summary judgment, which is
12 an especially rare feat for a plaintiff in any complex litigation. Plaintiffs’ Counsel
13 did so only because their preparation of the case and for summary judgment were
14 exhaustive. Again, this factor also supports an attorneys’ fee that is slightly higher
15 than the benchmark.
16

And fourth, the novelty and complexity of the Action supports a fee slightly

17 higher than the benchmark. This Action was not only unprecedented, it was legally
18 and factually complex. No court ever has determined the scope of the Happy
19 Birthday copyright, and the Copyright Act does not include a mechanism for
20 challenging a disputed copyright claim. Plaintiffs’ Counsel’s use of the Declaratory
21 Judgment Act, 28 U.S.C. § 2201, et seq., and Rule 23 was extremely inventive, and
22 the class action mechanism in particular provides an unique framework for the
23 Court to declare the Song to be in the public domain. Plaintiffs’ Counsels’
24 exceptional work in this unprecedented case rightly has been recognized as
25 groundbreaking. See Rifkin Decl., ¶¶ 43-46 and Exhibits J, K. This final factor also
26 easily warrants a fee award slightly higher than the benchmark.
27

Plaintiffs’ Counsel’s request for attorneys’ fee of $4,620,000, which equals

28
-8-

1 33% of the $14 million Settlement Fund and just 15.9% of the combined value of
2 the Settlement Fund plus the present value of the waived fees, is fully justified
3 under the percentage of the common fund method.
4

B.

Plaintiffs’ Counsel’s Lodestar Easily Justifies the Fee Request

5

Moreover, using the “lodestar” approach as a check on the reasonableness of

6 the agreed-upon fee and expense amounts demonstrates it is well within the range
7 commonly awarded in securities, shareholder representative, and other types of
8 complex actions. Indeed, as the Ninth Circuit held in Staton:
9

Alternatively, particularly where obtaining injunctive relief likely

10

accounted for a significant part of the fees expended, courts can use

11

the common fund version of the lodestar method either to set the fee

12

award or as a cross-check to assist in the determination of how the

13

‘relevant circumstance’ of the injunctive relief should affect a

14

percentage award.”

15 Staton, 327 F.3d at 974 (emphasis added) (citing Vizciano, 290 F.3d at 1050
16 (“lodestar, which measures the lawyers’ investment of time in the litigation,
17 provides a check on the reasonableness of the percentage award”)). This approach
18 is especially appropriate in this Action, where many of the Settlement benefits –
19 ending the disputed copyright claims, the waiver of future fees forever, and the
20 Court’s declaration that the Song is in the public domain – are injunctive in nature.
21

Here, as substantiated by the declarations from Lead Counsel and all other

22 Plaintiffs’ Counsel, the hard-working attorneys and paralegals spent nearly 9,500
23 hours in performance of their services on behalf of Plaintiffs and the Class. Those
24 declarations document a cumulative lodestar at current hourly rates for the services
25 performed by all Plaintiffs’ Counsel of $5,329,372.80. Under the lodestar
26 approach, the fee requested by Plaintiffs’ Counsel reflects a negative lodestar
27
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1 multiplier of 0.892, which is eminently reasonable.
2

As discussed above, and as the Court is aware, Plaintiffs’ Counsel conducted

3 an exhaustive factual investigation of the Song and the disputed copyright, as well
4 extensive legal research of the claims asserted in the Action. The Settlement was
5 achieved only after three years of contentious and intense litigation, after Plaintiffs
6 withstood Defendants’ motion to dismiss, after the Court ruled on the cross7 motions for summary judgment, after an informal exchange of damages data, and
8 after the Parties completed nearly all the preparation for the bench trial on the
9 remainder of Claim One for declaratory judgment. See Rifkin Decl., ¶¶ 14-17, 1910 22, 24, 26-32, 34-42, 48-51. In addition, the Settlement could not have been
11 achieved without a week of intensive negotiations facilitated by David Rotman,
12 Esquire, an experienced and highly respected mediator.
13

None of the work required to bring this Action to a successful conclusion

14 was easy, and none of it was or could have been completed without the
15 considerable efforts by the attorneys and paralegals of Plaintiffs’ Counsel. The
16 successful prosecution of this Action reflects more than three years of their hard
17 work – always at risk of non-payment and, at times, against long odds.
18

In lodestar/multiplier jurisprudence involving complex class actions,

19 “‘multipliers of between 3 and 4.5 have been common’”5 Rabin v. Concord Assets
20 Group, Inc., No. 89 Civ. 6130 (LBS), 1991 U.S. Dist. LEXIS 18273, at *4
21 (S.D.N.Y. Dec. 19, 1991) (citation omitted). See also Rievman v. Burlington N.
22
23

5

In order to ensure adequate compensation to counsel under the unique
circumstances of each case, courts often apply multipliers that reflect counsel’s
24 skill and results, and eschew any “arbitrary ceiling on multipliers.” In re Superior
Beverage/Glass Container Consol. Pretrial, 133 F.R.D. 119, 131 (N.D. Ill. 1990).
25 Thus, in Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778
F.2d 890, 894 (1st Cir. 1985), the First Circuit reversed a fee award based on a
26 multiplier of almost 2.5 and remanded with instructions to award a fee equal to six
times the lodestar.
27
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1 R.R. Co., 118 F.R.D. 29, 35 (S.D.N.Y. 1987); Keith v. Volpe, 501 F. Supp. 403,
2 414 (C.D. Cal. 1980) (multiplier of 3.5); Mun. Auth. of Bloomsburg v.
3 Commonwealth of Pennsylvania, 527 F. Supp. 982, 999-1000 (M.D. Pa. 1981) (4.5
4 multiplier); In re Cenco, Inc. Sec. Litig., 519 F. Supp. 322, 326-28 (N.D. Ill. 1981)
5 (4 multiplier); Arenson v. Bd. of Trade of City of Chicago, 372 F. Supp. 1349, 1358
6 (N.D. Ill. 1974) (multiplier of 4 awarded). Therefore, in an especially difficult case
7 such as this one, a negative multiplier of 0.892 is more than reasonable.
8

Under the lodestar method – taking into account the considerable non-cash

9 injunctive relief obtained in the Settlement and the thousands of hours of work
10 expended by Plaintiffs’ Counsel over the course of the litigation – the requested
11 attorneys’ fee of $4,620,000 (a negative multiplier of 0.892 on their combined
12 lodestar) is eminently reasonable and should be granted without reservation.
13

The Copyright Act provides an analogous basis for awarding attorneys’ fees

14 to Plaintiffs’ Counsel. Under 17 U.S.C. § 505, “the court in its discretion . . . . may
15 also award a reasonable attorney’s fee to the prevailing party as part of the costs.”
16 Where a federal copyright claim was asserted in the complaint, the court may
17 award attorneys’ fees under 17 U.S.C. § 505 even though the trial concerned a
18 related state law claim, not the federal copyright claim itself. See InvesSys, Inc. v.
19 McGraw-Hill Cos., Ltd., 369 F.3d 16, 19-20 (1st Cir. 2004). Indeed, in Tobias v.
20 Joy Music, Inc., 204 F. Supp. 556, 560 (S.D.N.Y. 1962), the district court awarded
21 attorneys’ fees to the successful defendant in a declaratory judgment action
22 brought to determine the disputed ownership of a song.
23

Fees may be awarded under 17 U.S.C. § 505 at the Court’s discretion;

24 however, that discretion must be exercised evenhandedly: “[p]revailing plaintiffs
25 and prevailing defendants are to be treated alike.” Fogerty v. Fantasy, Inc., 510
26 U.S. 517, 534 (1994). That is, those parties who successfully assert a copyright and
27 those – such as Plaintiffs in this case – who successfully seek to limit or invalidate
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1 a copyright are equally entitled to attorneys’ fees. For example, in Diamond Star
2 Bldg. Corp. v. Freed, 30 F.3d 503, 507 (4th Cir. 1994), the Fourth Circuit held that
3 a successful defense against a meritless claim of infringement justifies an award of
4 attorneys’ fees and remanded the case accordingly. As the Ninth Circuit has held,
5 the important consideration is whether an award of attorneys’ fees advances the
6 purpose of the Copyright Act. Fantasy, Inc. v. Fogerty, 94 F3d 553, 555-56 (9th
7 Cir. 1996). As set forth in the Copyright Clause of the Constitution, the primary
8 purpose of the Copyright Act is not to protect the economic interests of corporate
9 copyright owners, but rather “to promote the Progress of Science and useful Arts.”
10 U.S. Const., art. I, § 8. See Catalog v. Passport Int’l Prods., No. CV 03-8514 WJR
11 (CWx), 2004 U.S. Dist LEXIS 26798, at *27 (C.D. Cal. Dec. 17, 2004) (discussing
12 Copyright Clause).
13

Importantly, attorneys’ fee awarded under 17 U.S.C. § 505 need not relate to

14 the amount of damages recovered. For example, in Lanard Toys Ltd. v P.C. Woo
15 Inc., No. 99-55552, 2000 U.S. App. LEXIS 23801, at *7-8 (9th Cir. Sept. 19,
16 2000), the Ninth Circuit affirmed the district court’s award of attorneys’ fees to a
17 successful defendant that was more than ten times higher than the amount of the
18 claim itself. The Ninth Circuit expressly rejected the plaintiff’s argument that such
19 an award could not be granted absent a finding of bad faith, frivolous, or vexatious
20 conduct. Id.6
21

6

Other instances where attorneys’ fees were awarded under Section 505
22 substantially in excess of the amount of the claim are as follows:
 Nat’l Ctr. for Jewish Film v. Riverside Films LLC, No. 5:12-CV-44-ODW
23
(DTBx), 2012 U.S. Dist. LEXIS 178363 (C.D. Cal. Dec. 14, 2012) (court
awarded fees approximately 10 times higher than underlying damages);
24
 Teller v. Dogge, No. 2:12-CV-591 JCM (GWF), 2014 U.S. Dist. LEXIS
139632 (D. Nev. Sept. 30, 2014) (court awarded fees approximately 33
25
times higher than underlying damages);
 Curtis v. Illumination Arts, Inc., No. C12-0991JLR, 2013 U.S. Dist. LEXIS
26
167456 (W.D. Wash. Nov. 21, 2013) (fees approximately four times higher
than damages);
27 (footnote continued on following page)
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1

The procedure for awarding fees under Section 505 in the Ninth Circuit is as

2 follows:
3

The calculation of a reasonable fee award usually involves two steps.

4

First, the court must calculate the “lodestar figure” by taking the

5

number of hours reasonably expended on the litigation and

6

multiplying it by a reasonable hourly rate . . . . [Next,] the court may

7

consider many of the factors set forth in Kerr v. Screen Extras Guild,

8

Inc., 526 F.2d 67, 70 (9th Cir. 1975). These factors include the

9

novelty or difficulty of the case, the preclusion of other employment,

10

time limitations, the amount at stake, the results obtained, and the

11

undesirability of the case. Id.

12 MNG Corp. v. Andersen (Atl. Rec. Corp.), No. 05-933-AC, 2008 U.S. Dist. LEXIS
13 121070, at *6-7 (D. Or. May 14, 2008) (additional citations omitted). These factors
14 are nearly the same as those applicable under the common fund or benefit doctrine,
15 but beginning with the successful attorney’s lodestar.
16

Although Plaintiffs’ Counsel seek an award of attorneys’ fees under the

17 common fund or benefit doctrine, applying the fee-shifting provisions of Section
18 505 of the Copyright Act as an analogy also fully supports the requested attorneys’
19 fee award.
20
21
22
23
24
25
26

 Washington Shoe Co. v. A-Z Sporting Goods, Inc., No. C09-1042RSL, 2013
U.S. Dist. LEXIS 114339 (W.D. Wash. Aug. 12, 2013) (fees approximately
four times higher than damages);
 Magnuson v. Video Yesteryear, No. C-92-4049 DLJ, 1996 WL 784564
(N.D. Cal. Dec. 26, 1996) (fees approximately 100 times higher than
damages); and
 In re Dad’s Kid Corp. Baseball Card Trademark & Copyright Infringement
Score Group, Inc., No. MDL 958 WJR (CTX), 1994 WL 794773 (C.D. Cal.
Dec. 13, 1994), amended, No. MDL 958 WJR (CTX), 1995 WL 253069
(C.D. Cal. Jan. 18, 1995) (fees approximately 47 times higher than
damages).

27
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1

C.

Plaintiffs’ Counsel’s Expenses are Reasonable

2

Rule 23(h) also permits the Court to “award . . . nontaxable costs that are

3 authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Section 8.1
4 of the Revised Settlement Agreement permits Plaintiffs’ Counsel to seek
5 reimbursement of their reasonable expenses; Plaintiffs’ Counsel have agreed to
6 seek no more than $400,000 in costs.
7

Attorneys who create a common fund or benefit for a class are entitled to be

8 reimbursed for their out-of-pocket expenses incurred in creating the fund or
9 benefit, so long as the submitted expenses are reasonable, necessary, and directly
10 related to the prosecution of the action. See Roberti v. OSI Sys., No. CV-13-09174
11 MWF (MRW), 2015 U.S. Dist. LEXIS 164312, at *20 (C.D. Cal. Dec. 8, 2015)
12 (citing Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)) (class counsel may
13 recover reasonable expenses typically billed to paying clients in non-contingent
14 litigation); In re Am. Apparel, Inc. S’holder Litig., No. CV 10-06352 MMM
15 (JCGx), 2014 U.S. Dist. LEXIS 184548, at *88 (C.D. Cal. July 28, 2014); In re
16 OmniVision Techs., Inc., 559 F. Supp. 2d at 1048 (“Attorneys may recover their
17 reasonable expenses that would typically be billed to paying clients in non18 contingency matters.”); In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362,
19 1366 (N.D. Cal. 1995).
20

Plaintiffs’ Counsel have incurred expenses in the prosecution of this Action

21 in the total amount of $204,461.40, substantially below the cap of $400,000 in
22 costs provided for in the Settlement and Notice. These expenses represent less than
23 4% of the combined lodestar of Plaintiffs’ Counsel. Wolf Haldenstein, which
24 served as Lead Counsel for Plaintiffs throughout the litigation, has incurred the
25 largest amount of expenses, $165,635.98. Of those expenses, online research (both
26 legal and factual research) was by far the largest amount (approximately $68,000
27 for Wolf Haldenstein and $90,469.02 for all Plaintiffs’ Counsel) – as expected,
28
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1 given the massive historical research done by Plaintiffs’ Counsel and the novel and
2 complicated legal issues involved. Meals, hotel, and travel was the other largest
3 expense (more than $30,000 for Wolf Haldenstein and $45,150.69 in total for all
4 Plaintiffs’ Counsel) – again, as expected in light of the fact that the case was
5 litigated in this Court rather than the Southern District of New York where the first
6 case was filed and where Wolf Haldenstein has its main office.7 All the expenses
7 are described in the accompanying declarations of Plaintiffs’ Counsel.
8

From the beginning of the case, Plaintiffs’ Counsel were aware they might

9 not recover any of their expenses, and, at the very least, would not recover
10 anything until the Action was successfully resolved. Plaintiffs’ Counsel also
11 understood that, even assuming that the Action was ultimately successful,
12 reimbursement for expenses would not compensate them for the lost use of the
13 funds advanced to prosecute the Action.
14

D.

Plaintiffs Are Entitled to Incentive Compensation Awards

15

Plaintiff GMTY seeks an incentive compensation award of $15,000 and

16 Plaintiffs Siegel, Marya, and Majar seek incentive compensation awards of
17 $10,000 each. Such incentive compensation awards are regularly (if not routinely)
18 granted in the exercise of discretion by courts in this Circuit in similar class and
19 representative litigation. See, e.g., Staton, 327 F.3d at 977; In re Heritage Bond
20 Litig., 2005 U.S. Dist. LEXIS 13555, at *46-47; Wren v. RGIS Inventory
21 Specialists, No. C-06-05778 JCS, 2011 U.S. Dist. LEXIS 38667, at *38 (N.D. Cal.
22 April 1, 2011). “Such awards are intended to ‘compensate class representatives for
23 work done on behalf of the class, to make up for financial or reputational risk
24
25

7

One of the Plaintiffs’ licenses with Warner required it to litigate in California.
Therefore, Plaintiffs’ Counsel agreed with Defendants’ counsel to transfer the
26 original action to this Court, thus increasing the travel expense. See Rifkin Decl.,
¶ 79(b).
27
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1 undertaken in bringing the action, and, sometimes, to recognize their willingness to
2 act as a private attorney general.’” Anderson v. Nextel Retail Stores, LLC, No. CV
3 07-4480-SVW (FFMx), 2010 U.S. Dist LEXIS 71598, at *26-27 (C.D. Cal. June
4 30, 2010) (quoting In re Mego Fin. Corp., 213 F.3d at 463).
5

The Court should exercise its discretion to award incentive compensation to

6 the four Plaintiffs in this case. Plaintiff Nelson, for example, spent several hundred
7 hours investigating the origin of the Song and the scope of Defendants’ copyright
8 and many more hours overseeing the litigation for the Class, all of which she
9 describes in detail in her declaration submitted herewith. The other Plaintiffs
10 likewise spent considerable time and effort investigating or reviewing the claims
11 and overseeing the litigation, which they describe in their own declarations
12 submitted herewith.
13

The requested incentive compensation awards fall within the range typically

14 granted by courts across the country. For example, in Heritage Bond, noting that
15 the plaintiffs pursued a complicated case over three years of active litigation, this
16 Court granted incentive compensation awards to each of the plaintiffs, including
17 $15,000 to one plaintiff who devoted more than 300 hours to the litigation and
18 $12,500 to another plaintiff who spent 200 hours pursuing the litigation. Heritage
19 Bond, 2005 U.S. Dist. LEXIS 13555, at *56-57.

See also Bradburn Parent

20 Teacher Store, Inc. v. 3M (Minn. Mining and Mfg. Co.), 513 F. Supp. 2d 322, 342
21 (E.D. Pa. 2007) ($75,000 incentive payment to small business that served as named
22 plaintiff from $39,750,000 settlement); Glass v. UBS Fin. Servs., No. C-06-4068
23 MMC, 2007 U.S. Dist. LEXIS 8476, at *51-52 (N.D. Cal. Jan. 26, 2007) ($25,000
24 each to four plaintiffs from $45 million settlement); In re Ins. Brokerage Antitrust
25 Litig., No. 04-5184 (GEB), 2007 U.S. Dist. LEXIS 40729, at *68-69 (D.N.J. June
26 5, 2007) ($10,000 each to 15 plaintiffs from $121 million settlement fund).
27

For these reasons, given their substantial contributions to the successful

28
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1 prosecution of this Action, taking on burdens to challenge the disputed copyright in
2 court that no litigant has ever assumed,8 the four Plaintiffs should be granted
3 incentive compensation awards in the amount of $15,000 to GMTY and $10,000 to
4 each of the other three Plaintiffs.
5

E.

The Reaction of the Class Also Favors Final Approval

6

Although the time for members of the Settlement Class members to oppose

7 the fee and expense requests has not yet passed, to date no Settlement Class
8 Member has objected to the request for attorneys’ fees and expenses or for
9 incentive compensation awards to the named Plaintiffs. In addition, none of the
10 State Attorneys General has opposed either request. These facts also speak strongly
11 in favor of the reasonableness of both requests.
12 III.

CONCLUSION

13

For all the foregoing reasons, the Court should approve Plaintiffs’ Counsel

14 attorneys’ fees in the amount of $4,620,000 and reimbursement of expenses in the
15 amount of $204,461.40 – to be allocated by Lead Counsel among all Plaintiffs’
16 Counsel as provided for in Section 8.1.4 of the Revised Settlement Agreement –
17 for their excellent work and should grant incentive compensation awards of
18 $15,000 to Plaintiff GMTY and $10,000 each to Plaintiffs Siegel, Marya, and
19 Majar for their contribution to the successful conclusion of the Action.
20

Respectfully submitted,

21 Dated: April 27, 2016

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

22
By:

23
24
25

8

/s/ Betsy C. Manifold
BETSY C. MANIFOLD

At least potentially, the Court might have awarded attorneys’ fees and costs
26 against the four Plaintiffs under the analogous provisions of the Copyright Act, 17
U.S.C. § 505, had Defendants or the Intervenors prevailed.
27
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1

FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

2
3
4
5
6
7
8
9
10

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
RANDALL S. NEWMAN (190547)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

11
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13
14
15
16
17

Lead Counsel for Plaintiffs

18

HUNT ORTMANN PALFFY
NIEVES DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

1
2
3
4
5
6
7
8

GLANCY PRONGAY &
MURRAY LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
KARA M. WOLKE
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160
Attorneys for Plaintiffs

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WARNER.CHAPPELL:22890.v2

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