Rupa Marya v. Warner Chappell Music Inc

Filing 332

In Opposition re: 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 #323 /Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses filed by Defendant Warner Chappell Music Inc. (Attachments: #1 Declaration Of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #2 Exhibit 1 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #3 Exhibit 2 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #4 Exhibit 3 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #5 Exhibit 4 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses)(Klaus, Kelly)

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 ADAM I. KAPLAN (State Bar No. 268182)
[e-mail]
4 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
5 Thirty-Fifth Floor
Los Angeles, California 90071-1560
6 Telephone: [phone]
Facsimile: [phone]
7
Attorneys for Defendants
8
9

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
13
Plaintiffs,
14
v.
15
WARNER/CHAPPELL MUSIC, INC.,
16 et al.,
17
18
19

Defendants.

Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR
AWARD OF ATTORNEYS’ FEES
AND EXPENSES
Date:
Time:
Courtroom:
Judge:

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

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DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION
CASE NO. CV 13-04460-GHK (MRWx)

TABLE OF CONTENTS

1

Page

2

3 INTRODUCTION ....................................................................................................... 1 
BACKGROUND ......................................................................................................... 2 
4
ARGUMENT ............................................................................................................... 5 
5 I. 
CLASS COUNSEL HAVE NOT JUSTIFIED A FEE AWARD
EXCEEDING THE NINTH CIRCUIT’S 25% BENCHMARK ...................... 5 
6
A.  Legal Standard ........................................................................................ 5 
7
B.  Class Counsel Have Not Carried Their Burden to Establish the
8
Reasonableness of the Requested 33% Fee Award ................................ 6 
9
1. 
The Results Do Not Justify Class Counsel’s Fee Request ........... 6 
10

2. 

The Amount of Work Does Not Justify Class Counsel’s
Request for a Significant Upward Adjustment from the
25% Benchmark............................................................................ 8 

3. 

Neither the Novelty Nor Complexity of this Case Justify
Class Counsel’s Request ............................................................. 11 

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12
13

16

Class Counsel’s Skill Does Not Justify Fees Nearly OneThird Above the Benchmark ...................................................... 13 
THE LODESTAR CROSS-CHECK DOES NOT DEMONSTRATE
THAT CLASS COUNSEL’S $4.62 MILLION FEE REQUEST IS
REASONABLE............................................................................................... 14 

17

A. 

Legal Standard ...................................................................................... 14 

18

A. 

Class Counsel Have Not Established that Their Claimed Hours
Were Reasonably Expended ................................................................. 15 

14
15 II. 

4. 

19

1. 
2. 

21
22
23
24

B. 

Class Counsel’s Hours Appear Excessive .................................. 17 

3. 

20

Class Counsel’s Time Records Are Insufficient ........................ 15 

Class Counsel Appear Not to Have Appropriately
Delegated Tasks .......................................................................... 18 

Class Counsel Have Not Established that Their Billing Rates Are
Reasonable ............................................................................................ 19 

C. 

Class Counsel Cannot Make the Lodestar Calculation Appear
More Favorable by Using an Unjustified Multiplier ............................ 20 
III.  CLASS COUNSEL HAVE NOT SUBMITTED SUFFICIENT
26
INFORMATION TO JUSTIFY THEIR CLAIMED EXPENSES ................. 21 
27 CONCLUSION.......................................................................................................... 22 
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DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

TABLE OF AUTHORITIES
Page(s)

2
3 FEDERAL CASES

4 ABKCO Music, Inc. v. LaVere,
217 F.3d 684 (9th Cir. 2000) ................................................................................ 12
5
6 In re Am. Apparel, Inc. S’holder Litig.,
2014 WL 10212865 (C.D. Cal. July 28, 2014) ......................................... 5, passim
7
8 Arnett v. Bank of Am., N.A.,
2014 WL 4672458 (D. Or. Sept. 18, 2014) .................................................... 13, 14
9
Bluetooth Headset Prods. Liab. Litig.,
10
654 F.3d 935 (9th Cir. 2011) ........................................................................ 5, 6, 20
11
In re Cadence Design Sys., Inc. Sec. & Derivative Litig.,
12
2012 WL 1414092 (N.D. Cal. Apr. 23, 2012)........................................................ 6
13
Campon v. City of Blue Springs, Missouri,
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289 F.3d 546 (8th Cir. 2002) .......................................................................... 10, 18
15 Chalmers v. City of Los Angeles,
796 F.2d 1205 (9th Cir. 1986) .............................................................................. 20
16
17 Davis v. City & Cty. of San Francisco,
976 F.2d 1536 (9th Cir. 1992), vacated in part on other grounds ........................ 17
18
19 Diagnostic Unit Inmate Council v. Films Inc.,
88 F.3d 651 (8th Cir. 1996) .................................................................................. 12
20
21 Fernandez v. Victoria Secret Stores, LLC,
2008 WL 8150856 (C.D. Cal. July 21, 2008) ................................................ 11, 12
22
Fischel v. Equitable Life Assurance Soc’y,
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307 F.3d 997 (9th Cir. 2002) .................................................................................. 5
24
Garcia v. Gordon Trucking, Inc.,
25
2012 WL 5364575 (E.D. Cal. Oct. 31, 2012) ................................................ 11, 12
26 Hawthorne v. Umpqua Bank,
2015 WL 1927342 (N.D. Cal. Apr. 28, 2015)........................................................ 8
27
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DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

TABLE OF AUTHORITIES
(continued)

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Page(s)

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4 Hensley v. Eckerhart,
461 U.S. 424 (1983) ....................................................................................... 14, 17
5
6 In re Heritage Bond Litig.,
2005 WL 1594403 (C.D. Cal. June 10, 2005) ................................................ 11, 12
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Intel Corp. v. Terabyte Int’l, Inc.,
8
6 F.3d 614 (9th Cir. 1993) .............................................................................. 15, 16
9
Jankey v. Beach Hut,
10
2006 WL 4569361 (C.D. Cal. Dec. 19, 2006)................................................ 15, 17
11
Ko v. Natura Pet Prods., Inc.,
12
2012 WL 3945541 (N.D. Cal. Sept. 10, 2012)..................................................... 15
13 MacDougal v. Catalyst Nightclub,
58 F. Supp. 2d 1101 (N.D. Cal. 1999).................................................................. 19
14
15 MRC II Distrib. Co. v. Coelho,
2012 WL 3810257 (C.D. Cal. Sept. 4, 2012) ....................................................... 12
16
17 Paul, Johnson, Alston & Hunt v. Graulty,
886 F.2d 268 (9th Cir. 1989) .................................................................................. 6
18
19 Staton v. Boeing Co.,
327 F.3d 938 (9th Cir. 2003) .................................................................................. 8
20
Weeks v. Kellogg Co.,
21
2013 WL 6531177 (C.D. Cal. Nov. 23, 2013) ..................................... 8, 15, 19, 20
22
White v. Kimmell,
23
94 F. Supp. 502 (S.D. Cal. 1950) ......................................................................... 12
24 Zucker v. Occidental Petroleum Corp.,
968 F. Supp. 1396 (C.D. Cal. 1997) ......................................................... 15, 17, 18
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26
27
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DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

TABLE OF AUTHORITIES
(continued)

2

Page(s)

3
4 FEDERAL STATUTES
5 17 U.S.C. § 505.................................................................................................... 14, 15
6
FEDERAL RULES
7
Fed. R. Civ. P. Rule 23 ........................................................................................ 12, 21
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DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

INTRODUCTION

2

Class Counsel ask the Court to award them $4.62 million in fees—fully a

3 third of the common fund and almost one-third more than the Ninth Circuit’s 25%
4 benchmark for common fund awards. Class Counsel have not justified this
5 significant upward departure. This case was not unusually work-intensive or
6 complex. Over a three-year period it involved just a handful of hearings, two
7 dispositive motions, four depositions, and a small document production. Class
8 Counsel argue that their claimed lodestar—more than 9,000 hours incurred by four
9 different law firms—validates the reasonableness of their request. In fact, Class
10 Counsel’s lodestar proffer provides no basis for the required cross-check, because
11 the numbers are simply aggregated. What little information Class Counsel have
12 provided raises significant questions about whether Class Counsel’s fee request and
13 their simultaneous request to recover more than $200,000 in claimed expenses are
14 reasonable. The Court should either deny the motion or, at a minimum, require
15 Class Counsel to produce appropriate time and expense information (along with an
16 opportunity for Warner/Chappell to review and object in writing to the same) for the
17 following reasons:
18

First, Class Counsel have not identified the actual tasks that individual

19 attorneys performed or how much time they wrote down for any given task. This
20 makes it impossible for Warner/Chappell to respond to—or the Court to evaluate—
21 Class Counsel’s claim that their above-benchmark request is justified by the
22 purported reasonable expenditure of effort and resources on Plaintiffs’ side.
23

Second, the information Class Counsel have provided shows that many of the

24 time reports are excessive. Class Counsel report expending hundreds of hours on a
25 single opposition to a motion to dismiss, thousands of hours on limited discovery,
26 and thousands more hours on a summary judgment motion.
27

Third, Class Counsel’s top-line summary shows that their lodestar is

28 improperly comprised of an overabundance of time recorded by partners rather than
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 by more junior attorneys with lower billing rates. Lead Counsel’s partners account
2 for 70% of that firm’s attorney hours. The result, of course, is to drive up the
3 claimed amount of the lodestar with more hours at higher billing rates. Ninth
4 Circuit law makes it clear that the Court should reduce the lodestar so as not to
5 reward Class Counsel’s inefficient inflation of fees.
6

Fourth, Class Counsel have failed to provide evidence showing that their

7 hourly rates are reasonable for the Central District of California.
8

Fifth, Class Counsel have failed to show that their out-of-pocket expenses are

9 reasonable. They have submitted no receipts and offer only bare-bones descriptions
10 of their incurred costs.
11

BACKGROUND

12

Class Counsel argue for a significant upward adjustment from the Ninth

13 Circuit’s 25% benchmark. The case is exceptional, they say, because the result they
14 obtained could not have been achieved had Class Counsel “not worked tirelessly for
15 more than three years.” Mot. at 1.
16

Class Counsel, however, submit only top-line summaries of the hours spent

17 by attorneys at each firm during broad phases of the litigation. Rifkin Decl. at 4-19
18 & Exs. B-I; Newman Decl. at 3-9 & Exs. B-I; Schacht Decl. at 2-6; Wolke Decl. at
19 2-6. They provide no information about how much time any individual lawyer spent
20 on any particular task.1
21
22
23
24
25
26
27
28

1

The hours and lodestar figures cited in this opposition are compiled from the four
declarations Class Counsel timely filed in support of their fee request. This
compilation is presented in Exhibit 1 to the Declaration of Kelly M. Klaus (“Klaus
Decl.”). This opposition and Klaus Decl. Ex. 1 do not address the hours and
lodestar figures in the Nieves Declaration, which, without explanation, was filed
only yesterday (May 26). Dkt. 330. Because the Nieves declaration was filed 29
days late, Dkt. 316 at 9-10, there is insufficient time for Warner/Chappell to
consider and respond to it. Accordingly, Warner/Chappell requests that the Court
strike the Nieves declaration.
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

Based on the limited information Class Counsel have provided, there are

2 serious questions about the reasonableness of the claimed hours, billing rates, and
3 expenses at each of the broad stages of this litigation.
4

Initial Complaints. Class Counsel claim they spent 1,568 hours—resulting in

5 a lodestar subcomponent total of $908,904—for work related to researching and
6 drafting the initial four class action complaints.
7

Class Counsel filed their essentially identical complaints in June and July

8 2013. While the complaints were lengthy and cited a number of historical facts,
9 Class Counsel were hardly writing on a blank slate. In 2008, Prof. Robert Brauneis
10 wrote a law review article, entitled “Copyright and the World’s Most Popular
11 Song.” Prof. Brauneis’s article questioned whether Patty and Mildred Hill wrote the
12 Happy Birthday lyrics, whether they forfeited or abandoned their rights in the song,
13 whether they assigned their rights to Warner/Chappell’s predecessor (or simply
14 granted an implied license), whether the E51990 copyright registration covered the
15 lyrics, and whether Warner/Chappell’s predecessor validly renewed the copyright.
16 Klaus Decl. Ex. 3 at 17, 40-70. Prof. Brauneis created a public website that
17 contained more than 100 historical documents relating to Happy Birthday, including
18 Copyright Office records, court filings, and publications of the song. Klaus Decl.
19 ¶¶ 13-14 & Exs. 3-4. Prof. Brauneis worked as a litigation consultant for Class
20 Counsel, id. ¶ 11; Rifkin Decl. ¶ 14, and the initial class complaints (like the
21 subsequent iterations) track many of Prof. Brauneis’s theories. Compare Dkt. 1,
22 with Klaus Decl. Ex. 3 at 17, 40-70.
23

The firms that filed the first two complaints, Wolf Haldenstein and Randall S.

24 Newman PC, claim to have spent 1,294 hours (almost 54 entire days) simply
25 preparing the complaints. A third law firm filed another substantially similar
26 complaint (Dkt. 1), and did so with Wolf Haldenstein and Newman. Klaus Decl.
27 ¶¶ 5-7. That third law firm recorded an additional 234.8 hours for this apparently
28 duplicative effort.
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

Opposition to Motion to Dismiss. Class Counsel claim they spent 469.5

2 hours—resulting in a lodestar subcomponent total of $273,747—opposing
3 Warner/Chappell’s motion to dismiss the Second Amended Complaint.
4

Warner/Chappell filed a straightforward motion to dismiss, raising questions

5 as to copyright preemption, the specificity of certain allegations, and the applicable
6 statute of limitations. Dkt. 52. In response, Class Counsel filed an opposition brief
7 and a 3-page request for judicial notice. Dkts. 61-63. For this single 25-page brief
8 addressing pure questions of law and attendance at the hearing on this motion, Class
9 Counsel billed well over 400 hours. Moreover, each of the four firms billed a
10 significant number of hours on the same motion: Wolf Haldenstein billed 196.5
11 hours, Donahue Fitzgerald billed 108.2 hours, Newman billed 101.1 hours, and
12 Glancy Prongay billed 63.7 hours. While even Lead Counsel’s 196.5 hours seem
13 high for opposing a motion to dismiss, there is no apparent value added by the 273
14 combined hours from the other three firms. The Court ultimately ruled against
15 Plaintiffs on the only legal questions it resolved at the motion to dismiss stage (it
16 deferred ruling on the state law claims). Dkt. 71.
17

Discovery. Class Counsel claim they spent 2,751.3 hours—resulting in a

18 lodestar subcomponent total of $1,479,351—during the discovery phase of the
19 litigation. Mr. Rifkin, the lead partner on the case, alone billed 505 hours on
20 discovery. Rifkin Decl. Ex. E.
21

Discovery involved a limited amount of written discovery, two joint

22 discovery motions, and the exchange of a small number of documents. Excluding
23 Plaintiffs’ production of complete volumes of the Catalog of Copyright Entries, less
24 than 15,000 total pages were exchanged. Klaus Decl. ¶ 15. Discovery also
25 involved few depositions. Class Counsel took just three depositions (one was
26 continued over two days for a combined total of under 1.5 hours). Class Counsel
27 defended only the single deposition of their expert musicologist. Id. ¶ 16.
28
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

Summary Judgment. Class Counsel claim they spent 2,500.4 hours—

2 resulting in a lodestar subcomponent total of $1,397,169—during the summary
3 judgment phase of the litigation.
4

Plaintiffs’ and Warner/Chappell’s cross-motions for summary judgment

5 required two principal briefs: an initial 50-page joint brief and a supplemental 246 page joint brief. Dkts. 182, 219. The parties also filed a joint appendix of exhibits
7 and a joint statement of uncontroverted facts. Dkts. 183,187-94. Both parties filed
8 motions to supplement the record and Class Counsel filed a separate motion to strike
9 exhibits. Dkts. 197, 223-24. There were two summary judgment hearings.
10 Although two firms accounted for most of the billing time during summary
11 judgment—2,013.2 hours—the other two firms still billed 283.5 and 203.7 hours,
12 respectively. Collectively, this adds up to more than 104 entire days of billing.
13
14 I.
15

ARGUMENT
Class Counsel Have Not Justified a Fee Award Exceeding the Ninth
Circuit’s 25% Benchmark
A.

Legal Standard

16
17

“In a common fund case, the district court has discretion to apply either the

18 lodestar method or the percentage-of-the-fund method in calculating a fee award.”
19 Fischel v. Equitable Life Assurance Soc’y, 307 F.3d 997, 1006 (9th Cir. 2002).
20 Under either method, courts require that fee awards “be reasonable under the
21 circumstances.” In re Am. Apparel, Inc. S’holder Litig., 2014 WL 10212865, at *20
22 (C.D. Cal. July 28, 2014) (citation omitted). The Ninth Circuit encourages district
23 courts “to guard against an unreasonable result” by cross-checking fee requests
24 against a second method. Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 94425 45 (9th Cir. 2011). Accordingly, even when the percentage method is applied, as
26 Class Counsel request, courts typically “use the lodestar method to cross-check the
27 reasonableness of the percentage to be awarded.” In re Cadence Design Sys., Inc.
28 Sec. & Derivative Litig., 2012 WL 1414092, at *4 (N.D. Cal. Apr. 23, 2012).
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

The Ninth Circuit has set the “benchmark” award under the percentage

2 method at 25% of the fund, which may “then be adjusted upward or downward to
3 account for any unusual circumstances involved in this case.” Paul, Johnson, Alston
4 & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). A departure from the 25%
5 benchmark requires a showing of “special circumstances.” Bluetooth, 654 F.3d at
6 942.
7

B.

Class Counsel Have Not Carried Their Burden to Establish the
Reasonableness of the Requested 33% Fee Award

8
9

Under the Ninth Circuit’s 25% benchmark, Class Counsel would receive $3.5

10 million. Class Counsel instead seek attorneys’ fees of 33% of the common fund, or
11 $4.62 million. Class Counsel state seven times that their request is just “slightly
12 higher” than the 25% benchmark. But a fee request that is almost one-third more
13 than the benchmark—which amounts to an additional $1.12 million—is not slightly
14 higher than the benchmark. Class Counsel have not demonstrated that there are
15 “special circumstances” here that justify a fee award above the 25% benchmark.
16
17

1.

The Results Do Not Justify Class Counsel’s Fee Request

Class Counsel argue that the settlement is extraordinary because it ends a

18 “wrongful” practice. That is incorrect. Nothing in the Settlement Agreement
19 suggests wrongful conduct took place. Likewise, the Court did not rule that Clayton
20 F. Summy Co.’s (or its successors’) licensing of Happy Birthday was “wrongful.”
21 The Court ruled that the evidence before it did not support that Summy had rights in
22 the song’s lyrics when it registered the E51990 copyright in 1935. This limited
23 ruling did not address the propriety of Summy’s or anyone else’s actions. The
24 ruling also was subject to an unresolved motion for reconsideration and alternative
25 request for interlocutory appeal when the parties agreed to settle. In any event, the
26 Court’s ruling did not address whether the Hill Foundation retained a common law
27 copyright in the lyrics following the 1935 registrations or the 1944 transfers. The
28 Court allowed the Hill Foundation and the Association of Childhood Education
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 International (“ACEI”) (to whom Jessica Hill bequeathed her interest in the Hill
2 Foundation) to intervene in this litigation to try to prove just that. If the Hill
3 Foundation did retain the common law copyright, then instead of paying Summy (or
4 its successors)—who shared their royalties with the Hill Foundation per the parties’
5 agreements (and later shared their royalties with ACEI)—licensees simply would
6 have had to pay the Hill Foundation (or ACEI) directly.
7

Class Counsel also are wrong in asserting that Warner/Chappell “consent[ed]”

8 to Happy Birthday being declared public domain. Mot. at 2. Warner/Chappell only
9 agreed not to oppose Class Counsel’s request that the Court issue such a declaration
10 once the settlement is completely final (as provided in the Settlement Agreement),
11 and Warner/Chappell and ACEI then have disclaimed their interest in the song.
12

Class Counsel next contend that the settlement “will save” the public $15

13 million because Warner/Chappell is agreeing not to license the song under its claim
14 of ownership. Mot. at 6. This, too, is incorrect. Class Counsel extract this figure
15 from a declaration that purports to estimate the revenue Warner/Chappell would
16 receive from Happy Birthday. Dkt. 301-2. But Warner/Chappell’s projected
17 revenue is not equivalent to would-be licensees’ projected savings.
18 Warner/Chappell’s projected ASCAP-based revenue, for example, does not amount
19 to savings on the part of ASCAP licensees. ASCAP issues blanket licenses,
20 covering the use of all compositions in its repertoire. Class Counsel have not
21 provided and cannot provide evidence that the result in this case will affect the cost
22 of the blanket license (it will not). Nor is it plausible to suggest that this settlement
23 will reduce the cost of similar blanket licenses issued by foreign collecting societies.
24

Class Counsel also argue that their $4.62 million fee request is reasonable

25 because it is only 15.9% of $29 million, which is the sum of the $14 million
26 Settlement Fund plus the supposed $15 million in public savings. Mot. at 6-7. This
27 argument fails because the value of the common fund—i.e., the dominator to which
28 to apply the 25% benchmark—must be based on monetary benefits to the class. In
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 Weeks v. Kellogg Co., 2013 WL 6531177 (C.D. Cal. Nov. 23, 2013), for example,
2 Judge Morrow calculated the fee percentage based on the settlement value “directly
3 benefit[ting] individual class members” and excluded from that amount a cy pres
4 donation valued at $2.5 million. Id. at *25-28. Class Counsel have not valued and
5 cannot value the monetary “savings” that individual members of the Settlement
6 Class will realize—let alone do so with the requisite “precision.” Id. at *28 (quoting
7 Staton v. Boeing Co., 327 F.3d 938, 974 (9th Cir. 2003)).
8

Class Counsel do not address how the settlement value compares to the

9 maximum recovery the proposed class could have achieved. In their motion for
10 final approval, Class Counsel estimate that Period One Class Members paid $11
11 million in license fees and Period Two Class Members paid approximately $35-$40
12 million in license fees. Dkt. 322 at 14. This means that the $14 million settlement
13 achieved 27.5% to 30% of the maximum recovery. Class Counsel have not shown
14 that this result warrants fees nearly one-third above the benchmark. See, e.g.,
15 Hawthorne v. Umpqua Bank, 2015 WL 1927342, at *5 (N.D. Cal. Apr. 28, 2015)
16 (awarding 25% in fees instead of 33% and noting that recovery of 37.7% of the
17 maximum recoverable at trial was “deserving of approval,” but “not an ‘exceptional’
18 or ‘unusual’ award”).

20

The Amount of Work Does Not Justify Class Counsel’s
Request for a Significant Upward Adjustment from the 25%
Benchmark

21

The amount of work involved in litigating this case was not unusual. In fact,

19

2.

22 the workload was significantly reduced by the lack of percipient witnesses and the
23 limited documentary evidence. Class Counsel have billed a substantial number of
24 hours in this litigation. But they have not provided sufficient records for
25 Warner/Chappell to respond in detail to the reasonableness of Class Counsel’s
26 billing practices—or for the Court to evaluate the same. In particular, Class Counsel
27 have not indicated how much time any particular lawyer spent on any particular
28
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 task. However, the information that Class Counsel have submitted so far strongly
2 suggests that they duplicated efforts and overbilled in litigating this case.2
3

Although Wolf Haldenstein served as Lead Counsel, the three other firms

4 each billed a significant number of hours at every stage of the litigation except
5 during trial preparation (only Wolf Haldenstein and Newman billed during this
6 phase). The breakdown of each firm’s total hours is as follows: Wolf Haldenstein
7 billed 5,473 hours, Newman billed 2,193 hours, Donahue Fitzgerald billed 894
8 hours, and Glancy Prongay billed 493 hours. The value added by this apparently
9 overlapping and excessive billing is far from clear.
10

Class Counsel billed 1,568 hours researching and drafting the initial

11 complaints ($908,903.50 in fees), for example, even though Prof. Brauneis had
12 already laid the groundwork, posted many of the documents to his website, and
13 served as Class Counsel’s consultant.3 Further, Donahue Fitzgerald spent 234.8
14 hours drafting a complaint that was substantially identical to the previous two
15 complaints, which Wolf Haldenstein and Newman had already spent 1,294.2 hours
16 drafting.
17

Class Counsel also claim to have billed 469.5 hours ($273,747 in fees)

18 drafting a single 25-page brief opposing Warner/Chappell’s motion to dismiss and
19 attending one hearing on that motion. Donahue Fitzgerald and Glancy Prongay
20 billed 171.9 hours toward this effort even though Wolf Haldenstein and Newman
21 also billed 297.6 hours on the same brief.
22

Class Counsel also billed 2,500.4 hours during the summary judgment phase

23 of the litigation ($1,397,169 in fees). Whereas cross-motions for summary
24
25

2

Class Counsel claim to have spent “more than 9,000 hours” (Mot. at 2) or “nearly
9,500 hours” litigating this case (id. at 9). Adding up the figures in their
26 declarations results in a total of 9,052.8 hours.
3
27 Notably, Prof. Brauneis’s 2008 website provided links to all but one of the
documents the Court ultimately cited in granting partial summary judgment to
28 Plaintiffs. Compare Klaus Decl. ¶ 14 & Ex. 4, with Dkt. 244 at 28-41.
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 judgment in this district often involve three briefs per side (75 pages total), the
2 parties here filed only two joint summary judgment briefs (a total of 37 pages total
3 per side). The parties filed a substantial index and statement of facts and a few
4 ancillary motions, yet 2,500.4 hours still seems excessive. See, e.g., Am. Apparel,
5 2014 WL 10212865, at *27 (“In our view, it should not take four experienced,
6 highly paid attorneys 480 hours to prepare one summary judgment motion and to
7 prepare for and conduct a four-day trial when all pretrial discovery had been
8 completed.”) (quoting Campon v. City of Blue Springs, Missouri, 289 F.3d 546, 553
9 (8th Cir. 2002)). Moreover, Donahue Fitzgerald and Glancy Prongay spent 487.2
10 hours during this phase of the litigation even though the other two firms also billed
11 2,013.2 hours during this time.
12

As noted, Class Counsel claim to have recorded 2,751.3 hours (translating to

13 $1,479,351 in claimed lodestar fees) for discovery. Discovery involved relatively
14 few documents. Warner/Chappell produced about 2,900 pages, Plaintiffs produced
15 less than 6,400 pages (excluding volumes of the Catalog of Copyright Entries), and
16 third parties and Intervenors produced less than 5,600 pages. Klaus Decl. ¶ 15. By
17 contemporary class action standards, 15,000 pages of documents is a small
18 population. Class Counsel deposed just three individuals: (1) Warner/Chappell’s
19 Rule 30(b)(6) witness, (2) Warner/Chappell’s Vice President of Administration, and
20 (3) ASCAP’s Rule 30(b)(6) witness. They deposed ASCAP’s witness on two
21 occasions, with the initial deposition and the continued deposition lasting less than
22 1.5 hours in total. Id. ¶ 16. Class Counsel defended just one deposition, that of their
23 expert musicologist. Class Counsel filed two joint discovery motions (they
24 withdrew one and lost the other). Id. ¶ 17.
25

In short, while Class Counsel’s bills are high, they appear unreasonably so—

26 if anything, the amount of work involved was less than in a comparable consumer or
27 securities class action. Indeed, the very cases that Class Counsel cite in support of
28 an upward departure from the 25% benchmark show that the level of work required
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 in this case was not extraordinary. In In re Heritage Bond Litig., 2005 WL 1594403
2 (C.D. Cal. June 10, 2005), for example, the court awarded an upward adjustment,
3 but only after emphasizing that class counsel:
4

 “reviewed, analyzed and coded approximately 1.1 million documents”—

5

compared to less than 8,500 pages produced by Warner/Chappell or third

6

parties;

7

 “took 34 depositions and defended depositions of all of the representative

8

plaintiffs throughout California”—compared to four depositions here; and

9

 briefed “numerous discovery motions, a motion for class certification,

10

nineteen motions to dismiss, a motion for stay, and … three motions for

11

summary judgment”—as opposed to two dispositive motions, two

12

discovery motions, and a handful of ancillary motions.

13 Id. at *19-20 (emphasis added). See also Garcia v. Gordon Trucking, Inc., 2012
14 WL 5364575, at *2, 9 (E.D. Cal. Oct. 31, 2012) (upward adjustment warranted, in
15 part, by “extensive” motion practice, 16 depositions, dozens of witness interviews,
16 and complicated data restructuring and analysis); Fernandez v. Victoria Secret
17 Stores, LLC, 2008 WL 8150856, at *1, 10-12 (C.D. Cal. July 21, 2008) (upward
18 adjustment, based on discounted common fund value, reasonable in part due to
19 numerous motions, 20 depositions, and extensive mediation sessions in multiple
20 cities).
21

3.

Neither the Novelty Nor Complexity of this Case Justify
Class Counsel’s Request

22
23

This case was neither exceptionally novel nor complex. For the most part, it

24 involved basic copyright principles. Class Counsel suggest that it was novel
25 because no court had previously determined the scope of the Happy Birthday
26 copyright, but that proves nothing. If the opposite were true, Class Counsel would
27 not have had a case. Class Counsel also cite their “extremely inventive” use of the
28 Declaratory Judgment Act and Rule 23. But this does not support their request for
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 an extra $1.12 million in fees either. Class Counsel are not the first to seek a
2 declaration that a copyrighted work is in the public domain or even the first to file a
3 class action seeking a declaratory judgment under the Copyright Act.4 Once again,
4 Class Counsel’s own cases show that this litigation was not unusually complex. Cf.
5 Garcia, 2012 WL 5364575, at *8-9 (emphasizing the “complexity of the legal
6 issues” involved during extensive motion practice); Fernandez, 2008 WL 8150856,
7 at *10-13 (emphasizing that it was a “legally novel and factually complex” case
8 involving an unprecedented application of California labor law); Heritage Bond,
9 2005 WL 1594403, at *20 (noting that the case involved “highly complex issues” of
10 securities law and “numerous bonds offered over a course of several years” and “a
11 multitude of plaintiffs and over forty defendants”).
12

Class Counsel also claim that Warner/Chappell offered “shifting defenses”

13 that necessitated substantial additional work, whereas Class Counsel’s theory of the
14 case remained consistent throughout. This caricature of Warner/Chappell’s conduct
15 is highly inaccurate. And, Class Counsel themselves changed positions on
16 numerous issues, requiring Warner/Chappell—not the class—to litigate points that
17 should have been (and in some cases were) undisputed. For example, Class
18 Counsel’s first four complaints expressly alleged that the Happy Birthday lyrics
19 were included on the E51990 deposit copy. Klaus Decl. ¶ 18. Plaintiffs revised this
20 allegation only after their Lead Counsel—in oral argument on the motion to
21 dismiss—flagged a point that Prof. Brauneis had noted in his article about the
22 Copyright Office no longer having the E51990 deposit copy, and after
23 Warner/Chappell pointed out that Plaintiffs’ complaints all had included the Happy
24 Birthday lyrics with the deposit copy. Oct. 7, 2013, Dkt. 69, Hr’g Tr. at 48:6-18,
25 53:1-20; Dkt. 95, ¶ 98. Plaintiffs’ revision required Warner/Chappell to search
26

4

See, e.g., ABKCO Music, Inc. v. LaVere, 217 F.3d 684 (9th Cir. 2000); Diagnostic
Unit Inmate Council v. Films Inc., 88 F.3d 651, 652 (8th Cir. 1996); MRC II Distrib.
27
Co. v. Coelho, 2012 WL 3810257, at*1 (C.D. Cal. Sept. 4, 2012); White v. Kimmell,
28 94 F. Supp. 502, 504 (S.D. Cal. 1950).
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 through the British Museum for deposit records. Even after Warner/Chappell later
2 obtained those records, Class Counsel objected to the evidence. Klaus Decl. ¶ 20.
3 Class Counsel also ignore that at the first summary judgment hearing, Class Counsel
4 suggested that Jessica Hill created the song while Mildred Hill played the piano,
5 while at the second summary judgment hearing, Class Counsel argued that Patty
6 wrote the song entirely apart from Mildred. Compare Mar. 23, 2015, Dkt. 208,
7 Hr’g Tr. at 67-68, with July 29, 2015, Dkt. 230, Hr’g Tr. at 15-21.
8

The point of these examples (and others Warner/Chappell could cite) is not to

9 throw mud, but instead to rebut Class Counsel’s claim that they were a model of
10 perfect consistency and had to adjust their positions to Warner/Chappell’s shifting
11 theories. Here, as in most cases, the parties discovered additional facts and
12 conformed their theories to the evidence. None of this required extraordinary efforts
13 by Class Counsel.
14

4.

Class Counsel’s Skill Does Not Justify Fees Nearly OneThird Above the Benchmark

15
16

Class Counsel argue that they deserve $1.12 million more than the $3.5

17 million benchmark because both sides performed high-caliber work. But this does
18 not make the case exceptional. In the context of national class action lawsuits, it is
19 not unusual for counsel to be skillful advocates. Arnett v. Bank of Am., N.A., 2014
20 WL 4672458, at *13 (D. Or. Sept. 18, 2014). In Arnett, for example, the court
21 concluded that while class counsel were all “highly skilled, have significant class
22 action experience, and expended significant effort pursuing the litigation,” this did
23 not justify an upward departure from the Ninth Circuit’s benchmark. Id. The Court
24 should reach the same conclusion here.
25
26
27
28
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 II.
2

The Lodestar Cross-Check Does Not Demonstrate that Class Counsel’s
$4.62 Million Fee Request Is Reasonable
A.

Legal Standard

3
4

Cross-checking a percentage-based award against what the lodestar award

5 would be is “the best practice.” Am. Apparel, 2014 WL 10212865, at *23 (citation
6 omitted). This is particularly true where, as here, counsel request an award that
7 significantly exceeds the Ninth Circuit benchmark. Class Counsel contend that their
8 lodestar fee award would be $5,329,372.80, which, they argue, demonstrates the
9 reasonableness of their request for $4.62 million in fees. But a lodestar is not
10 determined simply by adding up the total of each attorney’s cumulative hours
11 multiplied by his or her claimed hourly rates. A lodestar must be based on the
12 number of hours reasonably spent multiplied by the reasonable hourly rate.
13 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
14

Because Class Counsel have not explained how much time any lawyer spent

15 on any individual task, it is impossible to determine the number of hours reasonably
16 spent. Likewise, it is impossible to determine reasonable rates for the attorneys and
17 legal staff who work for Class Counsel because Class Counsel have not submitted
18 evidence of each attorney’s and paralegal’s level of experience. Nor have Class
19 Counsel offered evidence of prevailing market rates in this district. Based on the
20 limited evidence that Class Counsel have provided, both the hours expended and the
21 rates charged appear to be facially unreasonable.5
22
23
24
5

Class Counsel argue that they are also entitled to fees under the Copyright Act’s
provision allowing courts to award “reasonable attorney’s fee[s] to the prevailing
26 party.” 17 U.S.C. § 505. This provision does not justify Class Counsel’s inflated
fee request. Even assuming § 505 somehow were to apply, Class Counsel have
27 offered no reason why this would entitle them to a higher award than they otherwise
would receive under the percentage method cross-checked against the lodestar
28 amount.
25

DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

A.

Class Counsel Have Not Established that Their Claimed Hours
Were Reasonably Expended

2
3

“[T]he fee applicant bears the burden of documenting the appropriate hours

4 expended in the litigation and must submit evidence in support of the hours
5 worked.” Am. Apparel, 2014 WL 10212865, at *26 (citation omitted). “Although
6 detailed billing reports are not required, the court must have some information
7 regarding what a particular attorney was doing during the hours billed to evaluate
8 the reasonableness of the fees charged.” Weeks, 2013 WL 6531177, at *32-33
9 (discussing cases with adequate billing reports). Sufficient evidence of how
10 attorneys spent their time is necessary to ensure: (1) “the time devoted to particular
11 tasks was reasonable,” Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir.
12 1993); (2) “there was [not] improper overlapping of hours,” id.; (3) that tasks
13 performed were commensurate with the attorney’s experience, and thus billing rate,
14 Zucker v. Occidental Petroleum Corp., 968 F. Supp. 1396, 1402 (C.D. Cal. 1997);
15 and (4) that bills reflect working time, and not time traveling or performing tasks not
16 customarily billed to clients, Jankey v. Beach Hut, 2006 WL 4569361, at *4-5 (C.D.
17 Cal. Dec. 19, 2006).
18

“Where the documentation is inadequate, the district court is free to reduce an

19 applicant’s fee award accordingly.” Weeks, 2013 WL 6531177, at *33 (citation
20 omitted). In Ko v. Natura Pet Products, Inc., 2012 WL 3945541 (N.D. Cal. Sept.
21 10, 2012), for example, the court granted a benchmark award rather than the
22 requested 35% because the billing records, which even included narrative entries,
23 lacked “sufficient factual detail to enable the Court to determine whether the hours
24 billed were justified.” Id. at *12-13.
25
26

1.

Class Counsel’s Time Records Are Insufficient

Class Counsel claim to have spent “nearly 9,500 hours in performance of their

27 services on behalf of Plaintiffs and the Class.” Mot. at 9. But Class Counsel have
28 submitted no time records to support this claim. Instead, Class Counsel submitted
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 their own declarations identifying only the total number of hours they claimed to
2 have spent during eight broad phases of the litigation, without any description of the
3 specific tasks performed or time spent on those tasks.
4

First, Class Counsel’s summaries do not allow the Court to evaluate whether

5 the time expended by each attorney was reasonable. Intel, 6 F.3d at 623. For
6 example, it is impossible to determine if it was reasonable for Mr. Newman to bill
7 928 hours prior to filing the initial complaint, Newman Decl. Ex. B, or for Mr.
8 Rifkin to bill 505 hours during discovery, Rifkin Decl. Ex. E, without any
9 information about how much time these attorneys spent on any particular task
10 during those sweeping phases of the litigation.
11

Second, the summaries do not allow the Court to determine whether the

12 claimed hours reflect improper duplication of efforts or overstaffing. Intel, 6 F.3d at
13 623. For example, it is not clear why Donahue Fitzgerald needed to spend 234.8
14 hours drafting a complaint that duplicated the two complaints that had already been
15 filed. This is demonstrated by the fact that Glancy Prongay billed 39 hours drafting
16 its own “tag along” complaint. Class Counsel’s contention that numerous attorneys
17 and staff from four different law firms reasonably expended nearly 9,500 hours on a
18 case involving just a few depositions and two dispositive motions cries out for a
19 thorough evaluation of Class Counsel’s time records.
20

Third, the summaries preclude consideration of whether Class Counsel

21 delegated tasks appropriately within their respective firms. Intel, 6 F.3d at 623.
22 During discovery, for example, partners at Wolf Haldenstein billed 848 hours and
23 associates at the firm billed only 638 hours. Rifkin Decl. Ex. E. Without
24 information about the specific discovery-related tasks performed by any of these
25 partners or associates, it is impossible to assess whether resources were allocated
26 appropriately and efficiently. Zucker, 968 F. Supp. at 1402 (concluding that “work
27 billed by senior Class counsel should have been delegated to attorneys who charge
28 at lower rates”).
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

Fourth, the summaries do not indicate whether Mr. Rifkin or Mr. Newman

2 billed for their time traveling from New York to Los Angeles. Nor do Class
3 Counsel address whether such bills would be reasonable or appropriate. See Jankey,
4 2006 WL 4569361, at *4-5 (unreasonable to bill travel time absent evidence that it
5 is customary to do so within the district). Nor is it clear from the summaries how
6 much time Class Counsel billed for speaking with reporters or whether this time was
7 “directly and intimately related to the successful representation of a client.” Davis
8 v. City & Cty. of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), vacated in
9 part on other grounds; see Rifkin Decl. ¶¶ 32, 42 (noting that Wolf Haldenstein
10 billed time giving interviews to the media).
2.

11
12

Class Counsel’s Hours Appear Excessive

The Supreme Court has made clear that fee awards should exclude “hours that

13 are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. The
14 billing summaries on their face suggest that Class Counsel billed an excessive
15 number of hours to this case. For example, it seems excessive for Class Counsel to
16 have spent 1,568 hours researching and drafting the initial complaints in this action.
17 Although the complaints are detailed and rely on numerous historical records, many
18 of those records were already compiled by Prof. Brauneis, who served as Class
19 Counsel’s consultant for the litigation. Dkt. 1; Klaus Decl. ¶¶ 11-14 & Exs. 2-4.6
20

It also appears excessive for Class Counsel to have spent a total of 469.5

21 hours preparing a single 25-page opposition brief to Warner/Chappell’s motion to
22 dismiss the Second Amended Complaint and appearing at a single hearing. Even if
23 Warner/Chappell’s standard-length motion were “complex and, in part, novel,”
24 Rifkin Decl. ¶ 24—and it was not—this would not have justified the excessive hours
25 Class Counsel billed to this task. See, e.g., Am. Apparel, 2014 WL 10212865, at
26

6

Notwithstanding the extensive hours spent on the initial complaints, these
complaints had to be re-pleaded because they were unclear. Dkt. 71. The time
27
spent on that effort is not included in the 1,568 hours dedicated to drafting the initial
28 complaints.
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 *27 (quoting Campon, 289 F.3d at 553 (unreasonable to spend 480 hours preparing
2 a summary judgment motion and preparing for and conducting a four-day trial)).
3

Likewise, it appears excessive for Class Counsel to have spent 2,751.3 hours

4 during discovery given that the document productions were small, there was limited
5 written discovery, and there were only a few depositions and a few discovery6 related motions. Further, while the summary judgment index was substantial and
7 there was a lengthy statement of facts, there were only two summary judgment
8 briefs and two hearings. It does not seem reasonable for Class Counsel to have
9 expended a total of 2,500.4 hours on that phase of the litigation alone. As a general
10 matter, Class Counsel appear to have billed duplicative work throughout the
11 litigation, with partners at all four firms billing for overlapping tasks.
12

3.

Class Counsel Appear Not to Have Appropriately Delegated
Tasks

13
14

Class Counsel’s billing summaries suggest that Class Counsel failed to

15 delegate tasks to associates who billed at much lower rates. This is pertinent
16 because if senior partners record time for work that could have been done by junior
17 attorneys, then the lodestar will be inflated by an inefficient allocation of work
18 assignments. See Zucker, 968 F. Supp. at 1402. During the course of the litigation,
19 partners at Wolf Haldenstein billed 70.7% of the firm’s time, with associates billing
20 just 29.3% of the aggregate time. Klaus Decl. ¶ 4. This distribution of labor is the
21 opposite of what Judge Morrow found reasonable in American Apparel, where 66%
22 of the attorney work was assigned to “lower-billing associates, staff attorneys, and
23 of counsel.” Am. Apparel, 2014 WL 10212865, at *26. In fact, two Wolf
24 Haldenstein partners, who charge hourly rates of $820 and $770, respectively,
25 accounted for 42.6% of the entire Lodestar. Rifkin Decl. Exs. B-I; Mot. at 9. Class
26 Counsel’s failure to appropriately allocate resources at a minimum warrants a
27 substantial reduction in their lodestar. See, e.g., MacDougal v. Catalyst Nightclub,
28 58 F. Supp. 2d 1101, 1106 (N.D. Cal. 1999) (reducing award where a partner with
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 30 years of trial experience billed for tasks that “could have been undertaken by less
2 experienced associates”).
3

B.

Class Counsel Have Not Established that Their Billing Rates Are
Reasonable

4
5

A fee applicant “must submit ‘satisfactory evidence that the requested rates

6 are in line with those prevailing in the community for similar services by lawyers of
7 reasonably comparable skill, experience, and reputation.’” Weeks, 2013 WL
8 6531177, at *31 (internal citation and alteration omitted). To establish the
9 prevailing market rate in the community—here, the Central District of California—
10 the applicant may rely on declarations from counsel or survey data. Id.
11

Class Counsel have submitted no acceptable evidence demonstrating the

12 reasonableness of their claimed rates. They do not cite court decisions suggesting
13 their rates are reasonable. They do not cite surveys suggesting their rates are
14 reasonable. They do not even state in their declarations that their rates are
15 consistent with prevailing market rates in this district. Weeks, 2013 WL 6531177, at
16 *31. They simply proclaim that the rates they list are their “usual” and “customary”
17 rates. E.g., Rifkin Decl. ¶ 13. But Mr. Rifkin practices in New York. His “usual”
18 rate is not necessarily consistent with the prevailing market rate in the Central
19 District of California, which is the relevant market. Id. Moreover, Mr. Newman
20 quotes the rate that Wolf Haldenstein currently charges for his work, Newman Decl.
21 ¶ 13, but does not state that this is the rate he charged when he was a solo
22 practitioner—let alone state that the rate is consistent with prevailing rates in the
23 Central District. Similarly, Class Counsel have not stated whether the claimed rates
24 are what they charge their paying clients now, as opposed to what they charged in
25 2013 through 2015, i.e., while litigating the case. Class Counsel have given the
26 Court no basis for finding that their requested hourly rates are reasonable.
27
28
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

C.

Class Counsel Cannot Make the Lodestar Calculation Appear
More Favorable by Using an Unjustified Multiplier

2
3

Even if Class Counsel ultimately submit evidence of reasonable hours billed

4 at reasonable rates, there would be no basis for applying a positive multiplier to
5 establish that a 33% fee award is warranted. The lodestar amount is “presumptively
6 reasonable.” Bluetooth, 654 F.3d at 941-42 (quotation marks and citation omitted).
7 A district court may adjust a lodestar up or down “by an appropriate positive or
8 negative multiplier reflecting a host of reasonableness factors.” Id. (citation
9 omitted). Upward adjustments are limited to “rare, exceptional cases.” Chalmers v.
10 City of Los Angeles, 796 F.2d 1205, 1212 (9th Cir. 1986).
11

The Ninth Circuit considers the following factors in deciding whether to

12 apply a lodestar multiplier: (1) time and labor required; (2) novelty and difficulty of
13 the questions involved; (3) requisite legal skill necessary; (4) preclusion of other
14 employment due to acceptance of the case; (5) customary fee; (6) whether the fee is
15 fixed or contingent; (7) time limitations imposed by the client or the circumstances;
16 (8) amount at controversy and the results obtained; (9) experience, reputation, and
17 ability of the attorneys; (10) “undesirability” of the case; (11) nature and length of
18 the professional relationship with the client; and (12) awards in similar cases.
19 Bluetooth, 654 F.3d at 941-42 & n.7 (citation omitted).
20

Based on the limited and incomplete information in the record, and for the

21 reasons discussed supra at 6-13, there is no basis for the Court to find a multiplier
22 appropriate here. See Weeks, 2013 WL 6531177, at *34 n.157 (“Given the difficulty
23 of accurately calculating the lodestar, the court need not address counsel’s
24 contention that they are entitled to a lodestar enhancement.”).
25
26
27
28
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1 III.

Class Counsel Have Not Submitted Sufficient Information to Justify
Their Claimed Expenses

2
3

Courts have discretion to award “reasonable” costs and expenses under Fed.

4 R. Civ. P. Rule 23(h). Travel expenses, legal research, photocopying and the like
5 are typically recoverable as long as they are reasonable. Courts have discretion to
6 reimburse reasonable consulting and expert fees as well. Am. Apparel, 2014 WL
7 10212865, at *27-28. But counsel must submit sufficient records for the court to
8 determine whether claimed costs are reasonable and appropriate. See id. at *29
9 (concluding that amounts charged for travel were reasonable based on records
10 showing the costs of airfare, hotels, rental cars, and per diem food expenses).
11

Class Counsel request reimbursement of $204,461.40 in costs. Mot. at 14.

12 Through declarations, they describe the broad categories of expenses they claim to
13 have reasonably incurred—for example, legal research, transportation, expert fees,
14 and copying costs. This is insufficient. For example, Class Counsel do not provide
15 receipts, or even an itemized list, demonstrating that their travel expenses were
16 reasonable. Consequently, the Court cannot tell if “class counsel seek
17 reimbursement for ‘first class airplane tickets, luxury hotel accommodations, and
18 gourmet dinner meetings’ at the expense of a common fund recovery.” Am.
19 Apparel, at *29 (citation omitted). Similarly, Wolf Haldenstein claims that it spent
20 $21,309.71 on photocopying and reproduction, Rifkin Decl. ¶ 78, but they have not
21 “submitted receipts from which the court [may] determine whether the amounts are
22 reasonable.” Am. Apparel, at *29. In American Apparel, Judge Morrow awarded
23 only half of the $12,000 claimed photocopy expenses because it found that amount
24 high for litigation that lasted a year longer than this case. Id. Class Counsel have
25 not justified their substantially higher copying costs here. The Court should deny
26 the expense request or require Class Counsel to submit records sufficient to prove
27 the reasonableness of their claimed expenses.
28
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)

1

CONCLUSION

2

For the foregoing reasons, the Court should deny Class Counsel’s request for

3 attorneys’ fees. Alternatively, the Court should (1) deny Class Counsel’s request for
4 attorneys’ fees without prejudice, (2) direct Class Counsel to file a corrected
5 submission supported by sufficient records to establish the reasonableness of Class
6 Counsel’s claimed hours and billing rates, and (3) grant Warner/Chappell a
7 reasonable opportunity to review the revised submission and supporting evidence
8 and to submit an opposition to the renewed request. Likewise, the Court should
9 deny Class Counsel’s request for expenses or require it to submit records sufficient
10 to demonstrate the reasonableness of the claimed expenses.7
11
12 DATED: May 27, 2016

MUNGER, TOLLES & OLSON LLP

13
14

By:

15
16

/s/ Kelly M. Klaus
KELLY M. KLAUS

Attorneys for Defendants

17
18
19
20
21
22
23
24
25
26

7

Warner/Chappell does not object to Plaintiffs’ request for incentive awards and so
it is not responding to the arguments on that issue. To the extent that those
27
arguments overlap with Class Counsel’s arguments regarding their fee request,
28 Warner/Chappell does object to the arguments.
DEFS.’ OPP’N TO PLS.’ FEE AND EXPENSE MOTION

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CASE NO. CV 13-04460-GHK (MRWx)