Rupa Marya v. Warner Chappell Music Inc

Filing 339

DECLARATION of Omel A. Nieves in Support of 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 Revised Declaration of Omel A. Nieves in Support of Final Approval of Class Action Settlement and Request for Attorneys' Fees filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Manifold, Betsy)

1 FRANCIS M. GREGOREK(144785)
gregorek whafh.com
2 BETSYMANIFOLD(182450)
manifold whafll.com
3 RACHEL R. RICKERT(190634)
rickert whafh.com
4 MARI A C. LIVESAY(223247)
livesay whafh.com
5 BRITT NY N. DEJONG(258766)
de'ong~a,whafh.com
6 ~
OLF~HALDENSTEIN ADLER
FREEMAN & HERZ LLP
7 750 B Street Suite 2770
San Diego, C 92101
AA
8 Telephone: [phone]
Facsimile: 619/234-4599
9
nterim Lead CounselfoN Plaintiffs and the[P~oposedJ Class
10 I
11

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA -

13

WESTERN DIVISION

14 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
15
Plaintiffs,

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17

v.

Lead Case No. CV 13-04460-GHK(MRWx)
REVISED DECLARATION OF OMEL A.
NIEVES IN SUPPORT OF FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

18
ARNER/CHAPPELL MUSIC,
19 W
INC., et al.
2
0
Defendants.
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Room:
Judge:
Date:
Time:

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

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REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

1

The undersigned, Omel A. Nieves, under penalty of perjury, hereby declares

2 and states as follows:
3

1.

I am an attorney duly licensed to practice law in the State of California

4 and I am admitted to practice in this Court. I am a shareholder and managing partner
5 of the law firm of Hunt Ortmann Palffy Nieves Darling & Mah, Inc. ("Hunt
6 Ortmann"), Plaintiffs' local counsel in this litigation. I have personal knowledge of
7 the matters set forth herein and, if called upon, I could and would competently testify
8 thereto.
9

2
.

I submit this Declaration in support of Plaintiffs' motions for final

10 approval of the Settlement and for an award of attorneys' fees and reimbursement of
1 1 expenses. These motions and supporting memoranda of law are filed concurrently
12 herewith.
13

3.

This Declaration sets forth the nature of the work my firm performed in

14 the litigation to demonstrate why Plaintiffs' Counsel's request for attorneys' fees is
15 reasonable and should be approved by the Court.
16

4
.

As the Court is aware, the Action was extensively investigated by

17 Plaintiffs' Counsel before it was commenced, and was actively and aggressively
18 litigated by Plaintiffs' Counsel until the Settlement was reached on February 8, 2016.
19 For their part, Defendants (and, to a lesser extent, the Intervenors) vigorously
2 defended themselves against Plaintiffs' claims. The case presented novel and
0
21 complex issues and posed great risk to both sides. Nothing about the litigation was
22 simple.
23

5.

My firm acted as local counsel for Plaintiff Rupa Marya, and all

24 Plaintiffs throughout the litigation. We were involved in most of the major efforts by
25 Plaintiffs' Counsel. Specifically, Hunt Ortmann reviewed all documents prepared by
2 Plaintiffs Counsel including filings to ensure conformance with the District Rules
6
27 and Local Rules. Hunt Ortmann reviewed pleadings, law and motion and discovery
28 in this matter and made appearances in court when necessary. Our work in each
1

REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

1
2

phase of the litigation is described in detiail below.
6
.

The information in this declaration regarding the firm's time and

3

expenses is taken directly from time and expense printouts and supporting

4

documentation prepared and/or maintained by the firm in the ordinary course of

5

business. I am the partner who oversaw and conducted the day-to-day activities in

6 this litigation and I reviewed these printouts (and backup documentation where
7 necessary or appropriate) in connection with the preparation of this declaration. The
8

purpose of this review was to confirm the accuracy of the entries on the printouts as

9

well as the necessity for, and reasonableness of, the time committed to the litigation.

10 As a result of this review, reductions were made to both time and expenses in the
11

exercise of billing judgment. As a result of this review and the adjustments made, I

12 believe that the time and the expenses for which payment is sought as set forth in this
13 declaration are reasonable in amount and was necessary for the effective and efficient
14 prosecution and resolution ofthe litigation.
15
1VIy firm incurred minimal costs of which we are not seeking
7.
16 reimbursement.
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18

8.

After the reductions referred to above, the number of hours spent on

litigation by my firm is 102.70`. The fee amount for attorney time based on the firm's

19 current billed rates is $56,458.50. The hourly rates shown below are the usual and
2 customary rates set by the firm for each individual, and are rates that are actually
0
21

billed to, and paid by, clients ofthe firm.

22

A
.

Attorneys' Fees

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9
.

My firm assisted with primarily reviewing and advising on(1)the initial

24 complaint; (2) amended complaint; (3) response to Defendants' Motion to Dismiss;
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2
6
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1 This figure includes three (3)additional hours that Omel A. Nieves reasonably anticipates spending on
travel to and attendance at the June 27, 2016 hearing, and conferences with Plaintiffs Counsel and the client
regarding the hearing.

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2

REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'PEES

1 (4) discovery;(5) cross-motions for summary judgment;(6) settlement negotiations;
2 and (7) settlement approval and administration. As stated above, as local counsel,
3

my firm was responsible to ensure all District and local rules were followed. As a

4 result, all documents were passed by my firm for quality assurance.
5
6
7

10.

The work and the amount of time performed by the attorneys of my firm

during this phase of the litigation is summarized below:
Attorney

Position

Omel A. Nieves
Alison C. Gibbs
Katherine J. Odenbreit
Tina B. Nieves
TOTALS:

Partner
Associate
Associate
Of counsel

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9
10
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1 1.

Hours
Worked
65.402
3.7
16.80
16.80
102.70

Hourly Rate
$575.00
$420.00
$465.00
$575.00

Total
$37,432.50
$1,554.00
$7,812.00
$9,660.00
$56,458.50

I graduated from the University of California, Davis School of Law, was

California Bar in December 1989, and am a Shareholder and
14 admitted to the
Ortmann Palffy Nieves Darling & Mah, Inc. ("Hunt
15 Managing Partner with Hunt
16
17
18

Ortmann").
12.

For the past 26 years I have specialized in complex litigation with an

emphasis on business and real estate matters. As managing partner, I oversee the

irm's 23 attorneys and its considerable inventory of litigation matters which range in
19 f
2
0 value from $25,000 up to complex multiparty cases with claims in excess of $200
21

million. In addition, we handle many transactional matters for our clients in contracts

22 worth over five (5) hundred million dollars. I have also represented large numbers of
23 plaintiffs in the Northridge Earthquake Insurance Claims litigation, a collective
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action which yielded multiple multimillion dollar settlements for our clients.
13.

I am an experienced trial lawyer. Throughout the course of my practice,

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2 This figure includes three(3)additional hours that Mr. Nieves reasonably anticipates spending on travel to
and attendance at the June 27, 2016 hearing, and conferences with the client regarding the hearing.

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3

REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

1

I have successfully tried in excess of 25 high value bench and jury trials in addition

2 to countless arbitrations. I have represented cross complainants in a large complex
3

multiparty construction action captioned SSR Marlowe, LLC v Taisei Construction

4 Corporation, et.al. LASC Case No. BC363862I which was resulted in a very
5 favorable confidential settlement. I represented plaintiffs in a Consolidated Complex
6 action captioned In Re UCLA Westwood Replacement Hospital Cases LASC Case
7 No. SC096499 which resulted in a large confidential settlement on the eve of trial. In
8 addition, I

represented

plaintiffs

in

a

Class

Action

action

captioned

9 Dalal Abed~abo, et al vs. AT&T Mobility Services LLC, a Delaware limited liability
10 company USDC Central District Case No. SACV 11-01388 VAP, which resulted in a
11

confidential settlement prior to trial. This is just a small sampling of the complex

12 actions in which I have been involved. As a consequence, I have extensive
13 experience in managing and directing large discovery efforts, overall litigation
14 strategy, interviewing and deposing percipient and expert witnesses, developing
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experts in a wide variety of fields, and in all aspects of trial preparation and

16

management.

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14.

Katherine Odenbreit was a Senior Attorney with the Class Action

18 Program at the law firm Hunt Ortmann.
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15. Ms. Odenbreit has been an attorney nearly 18 years and has exclusively
2 dedicated her practice to litigating class actions for the past 9 years. She is a member
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of the California Employment Lawyers' Association ("CELA"), a state-wide

22 association of over 1,000 plaintiff lawyers who focus on employment law and
23 currently serve on the Wage and Hour Committee and as Chair of the Federal
24 Practice sub-committee. She has been invited to be a guest speaker at many wage
25 and hour seminars, including those sponsored by Bridgeport and CELA.
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16.

Prior to joining Hunt Ortmann, she was one of the founding partners of

Barge, Petersen & Odenbreit LLP. Barge, Petersen & Odenbreit LLP was a boutique

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REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

1

firm whose practice was dedicated to representing employees and peace officers in

2 wage and hour class and collective actions. The firm represented over 2,500 Los
3

Angeles Police Department officers in wage and hour claims in the California

4 Central District Court and the California Southern District Court. Barge, Petersen &
5

Odenbreit was also lead or co-lead counsel on numerous state and federal wage and

6 hour class actions.
7

17.

Prior to Barge, Petersen & Odenbreit, she was the Director of Litigation

8 f the firm Class Action Litigation Group APC ("CALG"). CALG's practice was
or
9 exclusively dedicated to state and federal wage and hour class and collective actions.
10 As Director of Litigation, she was responsible for oversight of litigation of all cases,
11

including supervision of attorneys and staff, case management and making key court

12 appearances.
13

18.

The first 7 years of her legal career, her practice was focused on

14 criminal defense where she litigated over 30 cases to jury trial in both state and
15 f
ederal courts and handled numerous appeals.
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19.

She began class action practice at the law firm of Spiro, Moss, Barness,

17 Harrison &Barge (aka "Spiro Moss"). At the time she was there, the firm had
18 approximately 8-10 attorneys and focused primarily on employment wage and hour
19 class actions.
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20. Her collective firms and attorneys have handled more than 200 overtime
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and other wage related class actions for the past 9 years. Her collective firms and/or

22 herself have been appointed lead or co-lead counsel and/or counsel for representative
23 plaintiffs in FLSA collective actions in over fifty matters in federal and state courts
24 throughout California, many of those by way of certification motion. The following
25 is a small sample of employers where she and/or her firm were appointed class
2 counsel:
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Dibel v Jenn~g,USDC Southern District, 06CV2533 JLS (AJB);

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REVISED DECLARATION OF OMEL A. NIEVES
1N SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

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•

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(
BLM)[over 40,000 class members];
•

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Boyce v. 24 Hour Fitness, USDC Southern District, 03CV2140 BEN

Harris v. Liberty Mutual Ins. Co., JCCP 4234; California Supreme
Court Case No. 5156555;
Salvador v. PLS Financial Services, USDC Central District, 08CV00882

•

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AHM (CWx);
•

Lockhart v. County of Los Angeles, USDC Central District, 07CV 1680

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ABC(CWx);

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Oberschlake v. St. Joseph's Hospital, Orange County Superior Court,

•
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04CC00301;
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•

Solley et al. v. Pier 1 Imports, JCCP 4373;

•

Hoke v. Construction Protective Services, Los Angeles Superior Court,
JCCP 4605;

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15

•

DeLao v. Kazi Foods, Inc., Los Angeles Superior Court, BC386085

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21.

She was also lead counsel on the matter of Brennan v. U.S. TelePacific~

17 Orange County Superior Court, 30-2010-00422317; Fourth Appellate District,
18 Division 3, Case No. G046225. This matter is a consumer class action currently on
19 appeal following an order denying a motion to compel arbitration. This case
2 involves issues recently raised by the United States Supreme Court in AT&T v.
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Concepcion.

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22.

Alison C. Gibbs is an associate with Hunt Ortmann.

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23.

For the past three years, Ms. Gibbs has devoted her practice to

24 representing workers nationwide in wage and hour class and collective actions. She
25 has quickly become recognized as a skilled and efficient litigator in wage and hour
26 class actions litigating against defendants such as Downey Savings &Loan, the
27 Federal Depository Insurance Company ("FDIC"), TelePacific Communications Inc.,
28 Countrywide Financial Corporation, Kinecta Alternative Financial Solutions, Inc.,
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REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES

1

Jenny Craig, PLS Financial Services, Inc., A Place For Mom,Inc., Intel Corporation

2 and Kazi Foods, Inc. She is a member ofthe Orange County Bar Association's Labor
3

and Employment Section and Young Lawyers Division, California State Bar Labor

4 and Employment Section, and the California Employment Lawyers Association
5 (
"CELA") organization. Prior to becoming an attorney, she worked directly for the
6 General Counsel of the Distilled Spirits Council of the United States on a variety of
7 cases including class actions. She was also active in protecting workers' rights as a
8

member of Educating for Justice non-profit organization where she was instrumental

9 in seeking fair wages for employees around the world.
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11

24.

Tina B. Nieves was Of Counsel to the Hunt Ortmann law firm. As of

January 1, 2012, the firm had engaged her services to work on all of the firm's class

12 action matters.
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25. In addition to her association with Hunt Ortmann as Of Counsel, she
14

was formerly founding partner in the firm of Gancedo &Nieves LLP, which

15

specializes in Wage and Hour, Consumer Fraud and Products Liability Class Actions

16 and Pharmaceutical Mass Torts. In her 24 years of practice, she has represented
17 thousands of plaintiffs who have been the victims of corporate fraud and
18 wrongdoing.
19

26.

She had been appointed lead or class counsel in the following class

2 actions, among others: Youngberg v. Bank of America National Trust and Savings
0
21 Association, Civil Action No. BC105027, Mazza~ella v. Bank ofAmerica Corp BC
22 310413(settled banking fee class action), Babinski v. Pilot Catastrophe Adjusters,
23 Inc. Civil Action No. CV-988459 JSL, and Gospodnetich v. Rite Aid Corp. CV
24 17594 (settled nationwide wage and hour overtime class actions). She was appointed
25

class counsel in O'Connor v. Boeing North American Inc., Civil Action No. 97-1554

2
6 ABC and In re Burbank Environmental Litigation, CV-96-5584 MRP (settled
27
environmental class actions); In ~e Woodlawn Memorial Park Litigation BC 227385
28
"
7

REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FE~S

1

(settled cemetery abuse class action); and In ~e CD Antitrust Litigation, MDL No.

2

1361.

3

27.

In addition to her 26 years' experience representing plaintiffs in class

4 actions, she also developed a specialty in pharmaceutical mass torts and has been
5

appointed to serve as lead counsel, liaison counsel, or to serve on the Plaintiffs

6 Executive Committees in a wide variety of these cases nationwide.

She has

7 represented thousands of individuals injured by Fen-Phen, Rezulin, Propulsid, PPA,
8 Baycol, Fosamax, Avandia, Vioxx, Celebrex and Bextra, Medtronics Sprint Fidelis
9 Leads, and Yaz,Yasmin and Ocella.
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11

28.

Based on my experience practicing law in the area of complex litigation)

and class actions, it is my opinion that the hours charged and the rates are reasonable

12 and consistent with community standards. Furthermore, the hours were necessarily
13 incurred.
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15

29.

I hereby certify, under penalty of perjury under the laws of the United

States of America that the foregoing statements are true and correct to the best of my

16 knowledge, information and belief.
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Executed this 16th day of June, 2016,
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$

REVISED DECLARATION OF OMEL A. NIEVES
IN SUPPORT OF FINAL APPROVAL OF CLASS
ACTION SETTLEMENT AND REQUEST FOR
ATTORNEYS'FEES