Pokorny et al v. Quixtar Inc et al

Filing 291

Order by Hon. Samuel Conti granting 225 Motion for Attorney Fees.(sclc2, COURT STAFF) (Filed on 7/18/2013)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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Jeff Pokorny, Larry Blenn, and Kenneth
Busiere, on behalf of themselves and those
similarly situated,
Plaintiffs,

Defendant.

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Quixtar, Inc.,

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CASE NO. C 07-0201 SC

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v.

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[PROPOSED] ORDER GRANTING
MOTION FOR ATTORNEYS’
FEES, EXPENSES, AND
INCENTIVE COMPENSATION

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Plaintiffs in this class action have moved for an award of attorneys’ fees, expenses,

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and incentive compensation to the three named class representatives. DE 225. From a class

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of over 2.9 million persons, the only objections to the motion were filed by Maria Wong and

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Maria Juarez, DE 235, Mike and Evie Bitondo, DE 241-1, Ex. F, and Virgil and Darlene

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Hill, DE 241-1, Ex. F. The Court held a hearing on the motion on November 16, 2012

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(none of the objectors appeared), took the matter under submission, and later deferred ruling

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until a “plan for equitable distribution of the settlement proceeds has been adduced and

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finalized.” DE 246. Such a plan has been adduced and finalized and the Court now

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overrules all objections and GRANTS the motion.

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I.

ATTORNEYS’ FEES
In a class action, an attorneys’ fee award to class counsel must be “fair, reasonable,

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and adequate.” Staton v. Boeing Co., 327 F.3d 938, 963–64 (9th Cir. 2003). Courts usually

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base the fee award on a percentage of the fund recovered for the class but then cross-check

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the reasonableness of the percentage to be awarded by reviewing the lodestar multiplier.

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Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). The Ninth Circuit uses a

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25% baseline in common fund class actions, and “in most common fund cases, the award

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exceeds that benchmark,” with a 30% award the norm “absent extraordinary circumstances

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CASE NO. C 07-0201 SC

[PROPOSED] ORDER GRANTING MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND
INCENTIVE COMPENSATION

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that suggest reasons to lower or increase the percentage.” In re Omnivision Techs. Inc., 559 F.

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Supp. 2d 1036, 1047-48 (N.D. Cal. 2007) (quotation omitted).

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After considering the evidence and all of the pertinent factors set forth in Staton,

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Vizcaino, and subsequent cases, the Court finds Class Counsel’s $15 million fee request to be

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fair, adequate, and reasonable under both the percentage method and the lodestar cross-check.

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The requested $15 million award is 27.3% of the $55 million common fund, if the non-cash

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component of the fund is valued at retail. Even if the product component of the fund is

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discounted by 20% off Quixtar’s retail prices, in light of Plaintiffs’ allegations of overcharges,

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see In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197 (D. Me.

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2003) (valuing products at 20% below retail), the requested fee would be 29.5% of the fund.

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These amounts are reasonable even without consideration of the value of injunctive relief.

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The court may properly consider the value of injunctive relief obtained as a result of

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settlement in determining the appropriate fee. See Staton, 327 F.3d at 968 (injunctive relief

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may be a “relevant circumstance” in determining what percentage of the common fund class

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counsel should receive as attorneys’ fees). Here, the settlement contains substantial injunctive

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relief. See DE 224-1, Goddard Decl. ¶ 9 (injunctive relief in settlement is “even more valuable

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than the substantial economic relief.”) It is undisputed that the injunctive relief has substantial

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value. Accordingly, the injunctive relief elements of the settlement constitute further support

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for the reasonableness of the fee award.

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The reasonableness of this fee is confirmed by the lodestar cross-check, which results

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in a multiplier of less than 2.20, DE 243-1 ¶ 7, well within the range of reasonableness. See

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Vizcaino, 290 F.3d at 1052-54 (approving 28% fee that resulted in a 3.65 multiplier); Milliron

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v. T-Mobile USA, 423 F. App’x 131, 135 (3d Cir. 2011) (“we have approved a multiplier of

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2.99 in a relatively simple case”); In re Cadence Design Sys., Inc. Sec. & Derivative Litig., No.

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C–08–4966 SC, 2012 WL 1414092, at *5 (N.D. Cal. April 23, 2012 (awarding counsel “more

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than 2.88 times its lodestar amount”); Been v. O.K. Industries, Inc., No. CIV-02-285-RAW,

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2011 WL 4478766, at *11 (E.D. Okla. 2011) (citing a study “reporting average multiplier of

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CASE NO. C 07-0201 SC

[PROPOSED] ORDER GRANTING MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND
INCENTIVE COMPENSATION

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3.89 in survey of 1,120 class action cases” and finding that a multiplier of 2.43% would be

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“per se reasonable”).
Accordingly, Class Counsel’s request for a $15 million fee award is GRANTED, with a

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reduction of $16,000 in accordance with the Court’s prior order, DE 275 at 2.
II.

EXPENSES
Class Counsel is entitled to recover its “out-of-pocket expenses that would normally be

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charged to a fee paying client.” Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). Class

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Counsel has submitted adequate support for $666,525 in expenses they incurred over the past

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seven years for which reimbursement is sought. No party has objected to reimbursement of

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any of these expenses, and the motion for reimbursement is GRANTED.
III.

INCENTIVE COMPENSATION

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“Incentive awards are fairly typical in class action cases … and are intended to

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compensate class representatives for work done on behalf of the class, to make up for financial

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or reputational risk undertaken in bringing the action, and, sometimes, to recognize their

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willingness to act as a private attorney general.” Rodriguez v. West Publ’g Co., 563 F.3d 948,

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958-59 (9th Cir. 2009) (internal citation omitted). See Van Vranken v. Atl. Richfield Co., 901

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F. Supp. 294, 299-300 (N.D. Cal. 1995) ($50,000 award to named plaintiff). It is undisputed

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that each of the three class representatives spent over two hundred hours of time assisting

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counsel, reviewing documents, meeting witnesses, attending hearings and mediation sessions,

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and doing additional work over the seven year course of this litigation. In view of the

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evidence submitted and the pertinent law, the request for awards of $20,000 to each class

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representative is GRANTED.

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IV.

CONCLUSION
In view of the foregoing, the Escrow Agent is AUTHORIZED and DIRECTED to pay

the following amounts from the Cash Fund:
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$15,000,000 for attorneys’ fees, minus $16,000 reduction per prior order, for a total
attorneys’ fee of $14,984,000 to Class Counsel
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CASE NO. C 07-0201 SC

[PROPOSED] ORDER GRANTING MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND
INCENTIVE COMPENSATION

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

$666,525 in expenses to Class Counsel

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$20,000 to plaintiff Jeff Pokorny

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

$20,000 to plaintiff Larry Blenn, and

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 $20,000 to plaintiff Kenneth Busiere.
These amounts should be paid to a bank account designated by Boies Schiller &

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Flexner LLP (“BSF”). BSF shall be responsible for the distribution of all funds to the

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appropriate parties.

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July
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DONE AND ORDERED this ___ day of ____________, 2013.

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________________________________________
UNITED STATES SENIOR DISTRICT JUDGE

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CASE NO. C 07-0201 SC

[PROPOSED] ORDER GRANTING MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND
INCENTIVE COMPENSATION