Rupa Marya v. Warner Chappell Music Inc

Filing 346

NOTICE /Defendants' Notice of Filing of Statement Pursuant to Dkt. 334, Regarding Class Counsel's Billing Records filed by Defendants Summy-Birchard Inc, Warner Chappell Music Inc. (Attachments: # 1 Redacted Document Exhibit A - Defendants' [Redacted] Statement, Pursuant to Dkt. 334, Regarding Class Counsel's Billing Records, # 2 Unredacted Document POS to Defendants' [Unredacted] Statement, Pursuant to Dkt. 334, Regarding Class Counsel's Billing Records)(Klaus, Kelly)

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Exhibit A REDACTED REDACTED PURSUANT TO ORDER OF THE COURT DATED JUNE 10, 2016 (DKT. 334) 1 GLENN D. POMERANTZ (State Bar No. 112503) gl~nn. pomerantz@, 2 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@, 3 ADAM I. K'APLAN (State Bar No. 268182) adam.k8J>lan@, 4 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue 5 Thirty-Fifth Floor Los Angeles, California 90071-1560 6 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 7 Attorneys for Defendants 8 9 UNITED STATES DISTRICT COURT 10 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' [REDACTED] STATEMENT, PURSUANT TO DKT. 334, REGARDING CLASS COUNSEL'S BILLING RECORDS Date: Time: Courtroom: Judge: June 27, 2016 9:30 a.m. 650 Hon. George H. King, Chief Judge 20 21 22 23 24 25 26 27 28 DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13-04460-GHK (MRWx) I Pursuant to the Court's Order of June 10, 2016 (Dkt. 334), Defendants hereby 2 submit the following statement regarding the billing records that Class Counsel filed 3 under seal on June 17, 2016 (Dkt. 337). 4 Defendants previously explained that, even based on the summaries Class 5 Counsel submitted with their fee motion, there appeared to be significant issues with 6 Class Counsel's claimed hours and rates. These issues preclude the use of Class 7 Counsel's purported lodestar as a meaningful cross-check on Class Counsel's 8 request for $1.12 million more in fees than the 25% benchmark award would 9 provide ($3.5 million). Class Counsel provided Defendants with a hard copy of 10 more than 3 00 pages of partially redacted billing records last Friday afternoon. 11 Defendants' review since that time confirms that Class Counsel's billing practices 12 are deficient and disqualify the lodestar from providing a meaningful cross-check. 1 13 We discuss below the deficiencies across five different categories. 14 I. Block Billing 15 '"[B]lock-billing' makes it impossible for the Court to determine whether 16 specific entries are excessive or duplicative." Mayer v. RSB Equity Grp., LLC, 2011 17 WL 2650185, at *2 (C.D. Cal. July 5, 2011 ). Courts routinely reduce lodestar hours 18 by 30% or more as a result of block billing. Id. (reducing total compensable hours 19 by 30% due, to block-billing); see also, e.g., Lahiri v. Universal Music & Video 20 Distrib. Corp., 606 F.3d 1216, 1222-23 (9th Cir. 2010) (affirming 30% reduction on 21 block-billed hours). 22 Class Counsel's billing records reveal that almost all of Class Counsel's 23 attorneys, paralegals and support staff"block billed" their time. See Dkt. 337 at 524 65, 123-83, 187-90, 193 (WolfHaldenstein), 205-51 (Randall S. Newman PC), 26925 98 (Donahue Fitzgerald), 300-11 (Glancy Prongay). For example, Mr. Rifkin, who 26 27 1 Defendants would be pleased to provide a more thorough analysis of Class Counsel's billing records if the Court would like; this response_provides only a high28 level overview of some of the most troubling aspects of Class Counsel's records. -1- DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13-04460-GHK (MRWx) 1 billed 1,700 hours and is Class Counsel's lead attorney, and Mr. Newman, who 2 billed 2,193 hours, each block billed their time. Dkt. 337 at 10-60 (Mr. Rifkin's 3 timesheets), 126-27 & 205-51 (Mr. Newman's timesheets). 2 Although Mr. Rifkin 4 often broke his daily time into two or three entries, most of those entries themselves 5 contained compilations of different tasks, with no indication as to how much time 6 was spent on a given task. Mr. Rifkin has tWo entries for July 24, 2014, for 7 example. But one entry block bills 8.5 hours (' ") and the other entry block bills 2.0 hours 8 9 "). Dkt. 337 at 33. Messrs. Rifkin's and 10 11 Newman's time alone, most of which is block-billed, amounts to $2.8 million in 12 fees-well over half of Class Counsel's entire claimed lodestar. 13 Class Counsel's block billing is particularly egregious-and makes the 14 reasonableness of their claimed hours particularly difficult to assess-because 12 15 attorneys or paralegals at three different firms collectively block billed 10 or more 16 hours in a single day on more than 100 occasions. 3 Class Counsel's billing records 17 simply do not allow the Court to conduct a meaningful cross-check on Class 18 Counsel's request for $4.62 million in fees. 19 II. Round-Number Time Entries 20 The deficiencies caused by Class Counsel's block billing are exacerbated by 21 the fact that certain attorneys routinely block billed their daily entries in round 22 numbers. This further calls into question the accuracy of Class Counsel's records. 23 See, e.g., MacDonald v. Ford Motor Co., 2016 WL 3055643, at *8 (N.D. Cal. May 24 25 2 Messrs. Rifkin's and Newman's aggregate hours are based on the figures in their declarations supporting Class Counsel's fee request. See Dkt. 323-1 Exs. B-1; Dkt. 26 324 Exs. B-1. 27 3 See, e.g., Dkt. 337 at 47, 51, 133, 143, 147, 152, 157, 162,166-67,171-73, 188, 194, 198, 205-06, 208-09, 212-14, 216-18, 222, 230, 234, 240-42, 247, 251, 279, 28 288-90, 292. -2- DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13·04460-GHK (MRWx) 1 31, 2016) (reducing fee request where "most" of an attorney's entries were "in either 2 one or half-hour increments"); Hawaii Def Found. v. City & Cty. ofHonolulu, 2014 3 WL 2804448, at *6 (D. Haw. June 19, 2014) ("Counsels' time sheets indicate that 4 they largely billed in hour or half-hour increments, which suggests that the hours 5 billed are excessive."). 6 An associate at WolfHaldenstein, who billed over $425,000 to this matter, 7 recorded the vast majority of her daily time entries in either one hour or half-hour 8 increments. See Dkt. 337 at 156-72 (only 31 of243 entries (13%) did not end in 9 ".O" or" .05"). Likewise, Mr. Newman, who billed $1.4 million in fees, routinely 10 recorded daily hours in perfectly round numbers. 4 By way of example, between 11 November 15, 2014 and November 28, 2014, Mr. Newman billed the following 12 daily hours over 14 consecutive days (12 of which were in hour-long increments): 13 16.0, 15.0, 14.0, 17.0, 15.0, 15.0, 13.0, 11.0, 12.8, 9.0, 11.0, 13.0, 16.0, 6.2. Dkt. 14 337 at 241. These and other round-number entries for large amounts of billing time 15 indicate excessive billing. MacDonald, 2016 WL 3055643, at *8; Hawaii Def 16 Found., 2014 WL 2804448, at *6. They also suggest that Class Counsel engaged in 17 post hoc, inflated estimates as to the actual time they worked on billable tasks. 18 III. Excessive Billing and Duplication of Efforts 19 Class Counsel's billing records confirm that they spent excessive amounts of 20 time at each stage of the litigation, that there was substantial overlap among the five 21 plaintiffs' firms, and that tasks routinely were not delegated to lower billing 22 attorneys and staff. WolfHaldenstein ran the case, in close coordination with 23 Newman PC. Together, these two firms billed an enormous number of hours-time 24 that itself is excessive. Adding time from multiple lawyers at other law firms for 25 what appears to be substantially overlapping work was, at a minimum, extremely 26 inefficient, and in all events grossly inflated Class Counsel's claimed lodestar. 27 4 See Dkt. 337 at 126-27, 205-06, 208-09, 212-14,216-18, 221-24, 230-32, 233-35, 28 240-43, 245, 247. -3- DEFS." [REDACTED] STATEMENT RE: PLS." BILLING RECORDS CASE NO. CV 13·04460-GHK (MRWx) 1 To begin, Mr. Newman alone billed a staggering number of hours between 2 September 2012 and March 28, 2013, they day he first' 3 4 - " Dkt. 337 at 205-213. He billed 535 hours over the course of six months, 5 which is an average of9.5 hours for each day that he billed to this matter. Id. Mr. 6 Newman and the remaining firms billed 750 more hours on their pre-filing 7 investigation and drafting of the initial (substantially similar) complaints between 8 then and July 2013. 9 During the discovery phase (roughly February through September 2014), five 10 partners, two associates, six paralegals and one technician at Wolf Haldenstein 11 together with Mr. Newman collectively billed over 2,500 hours-the equivalent of 12 more than 104 days of around-the-clock billing. That time is excessive for just a 13 limited amount of written discovery, two joint discovery motions, a relatively small 14 number of documents, and four depositions. Class Counsel's billing records are 15 often vague, which make it difficult to assess the reasonableness of their claimed 16 time. See, e.g., id. at 164 (showing that Ms. Landes (an associate) billed 17.5 hours 17 over three days in May 2014 on tasks such as 18 19 "). On top of these already 20 excessive hours between WolfHaldenstein and Newman PC, multiple attorneys and 21 a paralegal at two other firms billed an additional 240 hours on discovery. 22 During the summary judgment phase (roughly October 2014 through July 23 2015), five partners, one associate and two paralegals at WolfHaldenstein and Mr. 24 Newman collectively billed over 2,000 hours-the equivalent of 83 straight days of 25 billing. That time, itself, is excessive for a single 50-page joint motion, a 24-page 26 supplemental brief, and two oral arguments. Nevertheless, the records Plaintiffs 27 have produced show that two partners and two associates at Donahue Fitzgerald 28 billed nearly 250 hours for the same motion. See, e.g., Id. at 42 (showing that Mr. -4- DEFS. • [REDACTED] STATEMENT RE: PLS. • BILL!NG RECORDS CASE NO. CV 13·04460-GHK (MRWx) 1 Rifkin billed multiple hours on May 21 and 22, 2015 researching ' 2 - " ) , 103 (Ms. Manifold billed multiple hours during this period researching 3 abandonment), 270 (Mr. Drake (a case clerk) billed 6.4 hours during this period 4 researching abandonment), 290 (Mr. Schact (a partner) billed 5.2 hours during this 5 period researching abandonment), 297 (Mr. Williams (an associate) billed 9.3 hours 6 during this period researching abandonment). Similarly, two partners and two 7 associates at Glancy Prongay billed another 200 hours to the same motion. 5 A 8 dozen plaintiffs' lawyers working on these summary judgment-related tasks is 9 excessive. 10 Similarly, seven attorneys-none of whom was an associate-at four 11 different firms each billed significant amounts of time, which amounted to hundreds 12 of cumulative hours, drafting a single 25-page opposition brief to Defendants' 13 motion to dismiss. 14 Another law firm, Hunt Ortmann, billed over 100 hours ($56,000 in fees) 15 simply reviewing Class Counsel's filings for compliance with the Local Rules. This 16 time not only is excessive; it also appears to be completely unnecessary. The four 17 Class Counsel firms other than Newman PC each had multiple attorneys admitted in 18 this District, as well as paralegals, who each could have performed this task-and 19 likely did so as the firms prepared the filings. 20 To give one of many examples of excessive billing between WolfHaldenstein 21 and Newman PC, between October 23 and 28, 2014, Ms. Landes spent roughly 22 35 hours drafting the statement of facts (Dkt. 337 at 170), yet about two weeks later, 23 Ms. Manifold and Ms. Landes spent nearly 20 more hours revising this statement 24 (id. at 94 (Ms. Manifold's timesheet), 171 (Ms. Landes's timesheet) at the same 25 time that Mr. Newman billed nearly 90 hours over six straight days "reviewing" and 26 27 28 at 306. -5- DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13-04460-GHK (MRWx) 1 "revising" the same statement (id. at 241 (Mr. Newman's timesheet)). Class 2 Counsel also billed a number of exceedingly long days. For example, Mr. Rifkin 3 billed two 18.5 hour days (id. at 36, 56), Ms. Manifold billed a 20.3 hour day (id. at 4 96), and Mr. Newman has 14 daily entries with more than 15 hours each (id. at 207, 5 213, 217, 218, 240-41, 251). Such high daily billing is evidence of inflation. See, 6 e.g., Cotton v. City ofEureka, Cal., 889 F. Supp. 2d 1154, 1178 (N.D. Cal. 2012) 7 (reducing hours due to high daily billing); Alvarado v. FedEx Corp., 2011 WL 8 4708133, at* 17 (N.D. Cal. Sept. 30, 2011) (40% across-the-board reduction due to 9 inflated hours, including "repeated billing for excessively long days"). 10 IV. Billing for Travel Time and "Media Inquiries" 11 Class Counsel's billing records also reveal extensive billing for time spent 12 travelling. Although Class Counsel's block billing makes it is impossible to tell 13 precisely how much time they billed for travel, the figure appears to be substantial. 14 Messrs. Rifkin and Newman, for example, appear to have written down large 15 amounts of time for each of their multiple cross-country trips. See, e.g., Dkt. 337 at 16 16-18, 33, 36, 40-41, 45, 50-51, 56 (Mr. Rifkin's timesheets); id. at 222-24, 240-42, 17 247, 251 (Mr. Newman's timesheets). 6 Mr. Rifkin even billed $5,330 for traveling 18 to Los Angeles on November 8, 2015 to speak about the Court's summary judgment 19 ruling at a Los Angeles Copyright Society meeting. Id. at 50; see 20 He appears to have billed thousands 21 of more dollars for his time at that meeting. Dkt. 337 at 50. 22 The billing records also reveal extensive time billed for fielding media 23 inquiries, particularly by Mr. Rifkin. Once again, it is impossible to quantify Class 24 25 6 Other attorneys billed for lengthy plane trips as well. See, e.g., id. at 279, 288-90, 292. Tellingly, not all attorneys billed for tfieir travel time. Ms. Manifold, who 26 traveled from San Diego to Los Angeles on multiple occasions, billed time working in transit, but not for tlie transit itseff. See, e.g., ia. at 91-92. And on at least one 27 occasion, another attorney recorded travel time but did not bill for it. Id. at 274. Appare~tly some of Plain~iffs' attorneys recognized the impropriety of writing down 28 every mmute spent travelmg. -6- DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13·04460·GHK (MRWx) 1 Counsel's time speaking with reporters, due to block billing, although it appears 2 they billed a substantial amount of time to this unjustified effort throughout the 3 litigation. See, e.g., id. at 11-12, 14, 33, 41-42, 45-50, 52, 55-57 (Mr. Rifkin's 4 timesheets); id. at 102, 150-51, 158, 217, 242-43 (other attorneys' timesheets). 5 V. Hunt Ortmann's Delayed Submissions 6 Finally, Class Counsel's billing records unjustifiably include time entries for 7 Hunt Ortmann. Aside from the fact that Hunt Ortmann's services appear to have 8 been unnecessary, this firm submitted its time 29 days late, on May 26, 2016. Dkt. 9 330. That was just a day before the objection/exclusion deadline and Defendants' 10 fee opposition deadline, so Class Members did not have a meaningful opportunity to 11 assess the reasonableness of Hunt Ortmann's hours, and Defendants did not have 12 time to assess and comment upon the same. Moreover, Hunt Ortmann's declaration 13 inexplicably requested fees of three times its purported lodestar, claiming that it 14 typically would request a lodestar factor of three. Id. at 3. It was unclear how this 15 request related to Class Counsel's request for 33% of the common fund, as Class 16 Counsel's fee motion and supporting declarations said nothing about Hunt 17 Ortmann's hours or its request for three times its fees. Class Counsel's June 14 18 reply again was silent about Hunt Ortmann's hours and its role in the case. 7 The 19 Court should ignore Hunt Ortmann's hours in conducting the lodestar cross-check 20 not only because its work appears to have been unnecessary, but also due to that 21 firm's untimely and confused filings. 22 23 24 25 26 27 7 Hunt Ortmann filed a revised declaration on June 17, which stated that it is not 28 seeking fees of three times its claimed lodestar. Dkt. 339. -7- DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13-04460-GHK (MRWx) 1 2 DATED: June 24, 2016 MUNGER, TOLLES & OLSON LLP 3 4 Isl Kelly M Klaus By: KELLY M. KLAUS 5 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- DEFS.' [REDACTED] STATEMENT RE: PLS.' BILLING RECORDS CASE NO. CV 13-04460-GHK (MRWx)

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