Chelsea, LLC v. Regal Stone, Ltd. et al

Filing 288

ORDER by Judge Samuel Conti granting in part and denying in part 212 Motion for Attorney Fees (sclc2, COURT STAFF) (Filed on 11/23/2010)

Russo, et al., v. Regal Stone, Ltd. et al

Doc. 288

1 2 3 4 5 6 7 8 9 10 ALLEN LORETZ, individually and on behalf of all others similarly situated, Plaintiffs, v. REGAL STONE, LTD., HANJIN SHIPPING, CO., LTD., SYNERGY MARITIME, LTD., FLEET MANAGEMENT LTD., and JOHN COTA, In Personam, M/V COSCO BUSAN, their engines, tackle, equipment, appurtenances, freights, and cargo, In Rem, Defendants. I. INTRODUCTION This action stems from the allision of the cargo ship M/V COSCO BUSAN with the San Francisco-Oakland Bay Bridge on November 7, 2007. On September 3, 2010, the Court held a hearing on the ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-5800 SC ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEYS' FEES AND COSTS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Motion for Final Approval of Class Action Settlement filed by Dungeness Crab Skippers and Crewmembers. ECF No. 263. Defendants

Regal Stone Limited ("Regal Stone"), Fleet Management Ltd. ("Fleet Management") and M/V COSCO BUSAN (collectively "Defendants") did not oppose final approval of the settlement. Court approved the settlement. ECF No. 264. ECF No. 226. The

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On July 2, 2010, Audet & Partners, LLP ("Audet & Partners"), and Cotchett, Pitre & McCarthy ("CPM") (collectively, "Class Counsel") filed a Motion for Award of Attorneys' Fees, Costs, and Service Awards to the Named Plaintiffs. Attorneys' Fees"). ECF No. 212 ("Mot. for

Defendants filed an Opposition and Class ECF Nos. 227 ("Opp'n"), 236 ("Reply").

Counsel submitted a Reply.

At the hearing on September 3, 2010, the Court requested time records for in camera review. ECF No. 263. The Court subsequently

ordered Class Counsel to file supplemental declarations, and to serve Defendants with redacted versions of the time records. Nos. 266, 272. ECF

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Defendants filed objections to the fee records. Class Counsel filed a Response. ECF

ECF No. 277 ("Defs.' Objs."). No. 279 ("Resp. to Objs.").

The Court also ordered Class Counsel to file supplemental declarations regarding the size of the class and the amount recovered by class members to date. ECF No. 281 ("Oct. 22, 2010

Order"), 282 ("Supp. Gross Decl. in Resp. to Oct. 22, 2010 Order"),1 284 ("Taylor Decl. in Resp. to Oct. 22, 2010 Order"), 285 ("Supp. Taylor Decl. in Resp. to Oct. 22, 2010 Order ").2 Having considered the papers submitted and the arguments presented, the Court GRANTS IN PART and DENIES IN PART the Motion for an Award of Attorneys' Fees, Costs, and Service Awards to the Named Plaintiffs.

1

Stuart G. Gross ("Gross"), an attorney at the law firm of CPM, filed a number of declarations in support of the Motion for Attorneys' Fees.
2

Julie L. Taylor ("Taylor"), attorney at the law firm Keesal, Young & Logan, filed a number of declarations in opposition to the Motion for Attorneys' Fees. 2

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II.

BACKGROUND On November 15, 2007, a putative class action was filed on

behalf of all commercial fishing operations in the San Francisco Bay Area harmed as a result of the COSCO BUSAN oil spill. 1 ("Compl."). ECF No.

On November 19, 2007, a Verified First Amended ECF No. 7 ("FAC"). It requested that

Complaint was filed.

Defendants be required to establish a fund and emergency clean-up program, it sought to hold Defendants strictly liable for damages as a result of the oil spill, and it also asserted causes of action for negligence and violation of California's Business and Professions Code § 17200 et seq. FAC ¶¶ 35-58. On July 29, 2008, ECF No. 117

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a Verified Second Amended Complaint was filed. ("SAC").

It added causes of action for strict liability under the

Lempert-Keene-Seastrand Oil Spill Prevention and Response Act ("Lempert-Keene Act"), Cal. Gov't Code § 8670 et seq.; negligence per se; and public nuisance. SAC ¶¶ 67-95.

On November 20, 2007, CPM filed a putative class action in the Superior Court of San Francisco, Tarantino et al. v. Hanjin Shipping et al. ("the Tarantino action"), No. CGC-07-469379, on behalf of a similar class of commercial fishing operations. Decl. ¶ 6.3 Pitre

Audet & Partners and CPM soon thereafter coordinated Mot. for Attorneys' Fees at 4.

their efforts.

Plaintiffs applied for and were issued a warrant for the arrest of the COSCO BUSAN. ECF Nos. 10 ("App."), 19 ("Order The

Authorizing Issue of Warrant of Arrest"), 21 ("Warrant").
3

Frank M. Pitre ("Pitre"), partner in the law firm of CPM, filed a declaration in support of Plaintiff's Motion for Final Approval of the Class Action Settlement. ECF No. 215.

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Court appointed Marine Lenders Services, LLC, as substitute custodian of the vessel. ECF No. 20 ("Order of Appointment"). The

COSCO BUSAN left U.S. waters on or about December 20, 2007, after Regal Stone and Fleet Management signed a Letter of Undertaking in the amount of $20,000,000 as security. 5. On April 25, 2008, the Court ordered Defendants to inform claimants who signed Prepayment Advance Forms that, by doing so, they did not waive their right to join any lawsuit or class action for damages resulting from the oil spill. 2008 Order"). ECF No. 86 ("Apr. 25, Mot. for Attorneys' Fees at

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After several rounds of mediation and numerous

settlement discussions, Class Counsel signed a Memorandum of Understanding on October 1, 2009, outlining the terms of the Dungeness Crab fishermen settlement. Audet Decl. ¶¶ 11, 20-26.4

On April 21, 2010, the Court granted preliminary approval of the settlement in this case, and provisionally certified the class for settlement purposes. ECF No. 207 ("Apr. 21, 2010 Order"). The

Court permitted Plaintiffs from the Tarantino action to intervene in this case for the purpose of settling the claims of Dungeness Crab fishermen in both this case and the state court action. No. 209 ("Stip. and Order re: Limited Intervention"). The Settlement Agreement applies to Dungeness Crab skippers and crewmembers who have not individually settled their claims. See ECF No. 199 ("Mem. of P. & A. in Support of Mot. for Preliminary Approval of Dungeness Crab Settlement") Ex. A
4

ECF

William M. Audet ("Audet"), founding partner of Audet & Partners, filed a declaration in support of the Motion for Final Approval and the Motion for Award of Attorneys' Fees, Costs, and Service Awards to the Named Plaintiffs. ECF No. 214. 4

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("Settlement Agreement").

After the oil spill, Regal Stone

established a claims process under the Oil Pollution Act of 1990 ("OPA") and the Lempert-Keene Act (hereinafter, "OPA Claims Process"). Settlement Agreement at 3. Under OPA, "each

responsible party for a vessel . . . from which oil is discharged . . . is liable for the removal costs and damages . . . that result from such incident." 33 U.S.C. § 2702. OPA requires injured

parties to present their claims for removal costs and damages to the responsible party. Id. §§ 2713(a),(c). To promote speedy

resolution of OPA claims, the statute holds the responsible party liable for interest after thirty days from receipt of the claim. Id. §§ 2705. California law also imposes strict liability on

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vessel owners for clean-up costs and damages resulting from an oil spill, and it also requires the establishment of a claims process. See Cal. Gov't Code §§ 8670 et seq. Over $16 million has been paid

to skippers through the OPA Claims Process, including payments made to 220 individuals and entities that are not part of the class because they individually settled their claims. Resp. to Oct. 22, 2010 Order ¶ 27 n.2. Under the settlement's terms, skippers who have not individually settled must first seek compensation through the OPA Claims Process. Settlement Agreement at 3. To date, thirty-two Taylor Decl. in

skippers have filed claims.

Twenty-seven of these have received

compensation through the OPA Claims Process in the total amount of $1,161,363.43, one skipper received a payment of $40,125, and four skipper claims are pending. 22, 2010 Order ¶¶ 15-17. Supp. Taylor Decl. in Resp. to Oct.

Named class representatives were

reimbursed for clean-up payment reductions in the amount of

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$3,827.50.

Id. ¶ 15.

The deadline for skippers to submit their Settlement Agreement at 21; Supp.

OPA claims is January 1, 2011.

Gross Decl. in Resp. to Oct. 22, 2010 Order ¶ 20; Taylor Decl. in Resp. to Oct. 22, 2010 Order ¶ 10. It is not likely that many more

skippers will file claims prior to this deadline because most or all of these thirty-two skipper claims were filed prior to notice being sent to the class. 22, 2010 Order ¶¶ 7-8. Within 180 days after resolution of their OPA claims, these skippers must then submit their claims to Gilardi & Co., LLC, the Class Action Settlement Claims Administrator ("Settlement Claims Administrator"), which is authorized to pay skippers a twenty-five percent premium and reimbursement of attorneys' fees. Agreement at 17-22. Settlement See Supp. Taylor Decl. in Resp. to Oct.

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As of November 3, 2010, twenty-seven skippers

who are part of the class have been paid $1,161,363.43. Supp. Gross Decl. in Resp. to Oct. 22, 2010 Order ¶ 33; Supp. Taylor Decl. in Resp. to Oct. 22, 2010 Order ¶ 15. Taking into account the

payments that have been made to date, and based on estimates concerning four pending claims, the total potential recovery for skippers who are part of the class is not likely to exceed $1,716,660.83. Order ¶¶ 20. See Supp. Taylor Decl. in Resp. to Oct. 22, 2010

As a result of this settlement, skippers are likely

to receive approximately $343,332.17 in excess of what they could have received through the OPA Claims Process. Id. ¶ 21.

Under the terms of the settlement, Dungeness Crab crewmembers can receive a base payment of $500 plus a payment of $250 for each qualifying season worked, up to a maximum settlement payment of $1250. Settlement Agreement at 18. Forty crewmembers submitted

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claims to the Settlement Claims Administrator prior to the November 2, 2010 deadline for crewmember claims. Oct. 22, 2010 Order ¶ 20. Taylor Decl. in Resp. to

Of those forty, the Settlement Claims Id. Those nine The other

Administrator found nine claims to be valid. crewmembers will be paid a total of $9500.

Id. ¶ 36.

thirty-one crewmembers failed to submit the required documentation. Id. ¶ 20. If they correct these deficiencies, the highest possible

amount crewmembers will be paid under the terms of the settlement is $41,750. Id. ¶ 36.

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III. LEGAL STANDARD Plaintiffs asserted claims under California law, including the Lempert-Keene Act, which allows prevailing plaintiffs to recover reasonable costs, attorneys' fees, and the costs of necessary expert witnesses. Cal. Gov't Code § 8670.56.5(f). Where

California law governs the claim, it also governs the award of attorneys' fees. See Vizcaino v. Microsoft Corp., 290 F.3d 1043,

1047 (9th Cir. 2002) (applying Washington law to calculate fees where claim was brought under Washington law); see also Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995) (applying California law). Courts in California and the Ninth Circuit recognize two methods for calculating attorneys' fees in civil class actions: the lodestar/multiplier method and the percentage of recovery method. Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 253 (Ct. App. 2001); Hanlon v. Chrysler Group, 150 F.3d 1011, 1029 (9th Cir. 1998). In fee-shifting cases, "in which the responsibility to pay

attorney fees is statutorily or otherwise transferred from the

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prevailing plaintiff or class to the defendant, the primary method for establishing the amount of 'reasonable' attorney fees is the lodestar method." Lealao v. Beneficial Cal., Inc., 82 Cal. App.

4th 19, 26 (Ct. App. 2000). "[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate." 22 Cal. 4th 1084, 1095 (2000). PLCM Group v. Drexler,

The reasonable hourly rate is that Id. The lodestar

prevailing in the community for similar work.

figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. Id. These factors include:

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"(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award." Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (citing Serrano v. Priest, 20 Cal.3d 25, 49 (1977)).

IV.

DISCUSSION A. CPM's Lodestar 1. Reasonable Hours

CPM has provided the Court with its billing records for in camera review and it has publicly filed and served redacted versions of these records. Allocated Time Report").5
5

First Supp. Gross Decl. Ex. 1 ("CPM As noted above, CPM's clients intervened

Gross filed a supplemental declaration in support of the Motion for Attorneys' Fees. ECF No. 273. 8

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in this action for the purpose of settling Dungeness Crab fishermen claims. The attorneys' fees that CPM seeks in this case represents

approximately twenty-seven percent of its total lodestar for the entire Tarantino action, and CPM will seek an award of the rest of its fees in the state court action. Second Supp. Gross Decl. ¶ 3.6

These other fees were incurred pursuing claims on behalf of other commercial fishermen, variously referred to as the "finfish claims," or the "flatfish claims." Id.; Supp. Audet Decl. ¶ 3.7 Time entries that

CPM color-coded its Allocated Time Report.

CPM allocated equally between Dungeness Crab claims and Finfish claims are highlighted in green. The greatest concentration of

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"green time" occurs at the beginning of the litigation, when CPM was doing work that was foundational for all of the claims it pursued. This activity includes: preparing the complaint;

conducting investigations; meetings with potential class members; conducting legal research on matters including service on foreign defendants; preparing an amended complaint; conducting legal research regarding the effect of related criminal proceedings on the civil cases; preparing discovery plans; coordinating with the San Francisco City Attorney's office; applying for complex designation status; reviewing reports from the National Transportation Safety Board ("NTSB"); preparing third party subpoenas for crew members; assisting fishermen with the OPA Claims Process; preparing for and attending material witness depositions;

6

Gross filed a second supplemental declaration in support of the Motion for Attorneys' Fees. ECF No. 276.
7

Audet filed a supplemental declaration in support of the Motion for Attorneys' Fees. ECF No. 275. 9

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preparing for and attending mediation sessions; reviewing data related to damages; and engaging in settlement discussions. CPM Allocated Time Report. Time entries fully allocated to the Dungeness Crab claims are highlighted in yellow. These include preparing the motion and See

affidavits for an Order to Show Cause ("OSC"); meetings with clients regarding the OPA Claims Process and assisting fishermen with their claim forms; and work related to settling the claims of the Dungeness Crab fishermen. See id.

Time entries that were allocated between the Dungeness Crab claims and the Finfish claims in some other proportion are highlighted in blue. The "blue time" includes a ten percent

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allocation for some of the early factual investigations conducted by CPM. See id. Some of the investigations conducted early in

December 2008 were allocated seventy-five percent to the Dungeness Crab claims. CPM allocated twenty-five percent of the time related Some of the

to a Freedom of Information Act ("FOIA") request.

entries related to settling the Dungeness Crab claims were allocated sixty-six, seventy-five, or ninety percent to the Dungeness Crab claims. CPM retained several experts to assess the long-term impact of the oil spill on the Dungeness Crab fishery, including the Research Group of Corvallis, Oregon, and Edward Ueber. ¶ 4.8 Supp. Pitre Decl.

A FOIA request by CPM to the National Oceanic and

Aeronautical Administration yielded a huge amount of data related

8

Pitre filed a supplemental declaration in support of the Motion for Attorneys' Fees. ECF No. 250. 10

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to the oil spill that was analyzed by CPM and its consultants. Pitre Decl. ¶ 12. It is clear to the Court that determining the nature and extent of the damages suffered by Dungeness Crab fishermen was no easy matter. These efforts had an impact on the parties'

settlement negotiations. Indeed, Class Counsel agreed to settle with Defendants only after an expert concluded that the probability of long-term impact from the oil spill on the Dungeness Crab fishery was small. Supp. Pitre Decl. ¶ 5. Considering the

substantial disagreements between Class Counsel and Defendants concerning such issues as the appropriateness of crab fishermen pursuing their claims as a class action, it is clear to the Court that the parties' negotiations were intense, substantive, and adversarial. See Audet Decl. ¶¶ 20-26; Pitre Decl. ¶¶ 14-17.

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Having carefully reviewed CPM's detailed time entries, and with the exceptions noted below, the Court finds the time spent on this case by CPM attorneys, paralegals, and staff was reasonable, and that the allocation of time between Dungeness Crab claims and Finfish claims is reasonable. 2. Reasonable Rates

When determining a reasonable hourly rate, the Court looks to "the prevailing hourly rate in the area for comparable services." Ketchum, 24 Cal. 4th at 1140; see also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (relevant community is forum in which district court sits). The Court can consider

evidence including "declarations by Bay Area attorneys concerning the prevailing rates for contingent fee cases." 4th at 1140. Ketchum, 24 Cal.

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CPM's attorneys billed at rates ranging from $900 per hour for Joseph W. Cotchett, who spent only 4.85 hours working on this case, to rates of $150 per hour for work performed by law clerks. Decl. Ex 3 ("CPM Lodestar Report"). Pitre

Most of the work in this case

was performed by partner Frank M. Pitre, whose hourly rate was $775, associate Stuart G. Gross, whose hourly rate was $350, and case assistant/paralegal Ryan Manuel, whose hourly rate was $225. See id. The Court finds that the rates charged by CPM's attorneys, case assistants, and paralegals are reasonable. The rates charged

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are the same as those charged by CPM in other cases of this nature, including rates charged to CPM's hourly clients. Pitre Decl. ¶ 24.

Class counsel submitted a number of declarations from other attorneys representing plaintiffs in complex civil litigation who aver that CPM's rates are comparable to their own and to those of other attorneys of similar levels of experience. See Alexander Alexander

Saveri Decl. ¶¶ 2-3;9 Joseph Saveri Decl. ¶¶ 1-2.10

Saveri has attached to his declaration hourly fee schedules from a case in San Francisco Superior Court showing that other attorneys billed at similar rates. Alexander Saveri Decl. Ex. C, D, and E.

Taking into account the experience of the attorneys working on this case and in comparable cases, and taking into account the

9

Alexander Saveri, managing partner of Saveri & Saveri, Inc., filed a declaration in support of the Motion for Award of Attorneys' Fees. ECF No. 251.
10

Joseph R. Saveri, an attorney practicing in the Northern District of California, filed a declaration in support of the Motion for Award of Attorneys' Fees. ECF No. 254.

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complexity of this case, the Court finds that CPM's rates were reasonable. B. Audet's Lodestar 1. Reasonable Hours

Audet & Partners submitted its time records for in camera review, and the law firm also filed and served redacted versions of the time records. Records").11 See Supp. Nadji Decl. Ex. A ("Audet Time

These records show that attorneys at Audet & Partners

began investigating the case and meeting with potential clients in early November 2007. See id. Attorneys from Audet & Partners

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spent time preparing the complaint and amended complaints; requesting a show cause hearing regarding ex parte communications with putative class members; assisting fishermen with the OPA Claims Process; propounding discovery requests; participating in depositions; analyzing expert reports and other data; mediating Dungeness Crab fishermen's claims; and engaging in settlement discussions. See id.

This case was filed on November 15, 2007, shortly after the COSCO BUSAN allided with the Bay Bridge. See Compl. Successfully

litigating this case involved extensive research in the specialized area of law that governs oil spill liability. Audet retained and

utilized a number of maritime consultants during discovery and later to prepare Plaintiffs' damages calculations. 16. Audet Decl. ¶

Class Counsel attended depositions, including those of the Id. ¶ 17. During the course of this

COSCO BUSAN's crew members.

two-and-a-half year litigation, Class counsel has been in contact
11

Adel A. Nadji ("Nadji"), attorney at Audet, filed a supplemental declaration in support of the Motion for Award of Attorneys' Fees. ECF No. 274. 13

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with over one hundred class members and/or commercial fishermen regarding their experiences related to the oil spill. Id. ¶ 18.

Audet & Partners retained a number of experts during the course of this litigation, including Dennis M. King, Ph.D., of King & Associates, Inc., who conducted background research, data collection, data analysis, and report preparation for Audet & Partners. Id. ¶ 32(c). The law firm retained and utilized

consultants and reviewed thousands of pages of documents related to the events leading up to the oil spill. Id. ¶ 16. The firm

engaged Marine Lender Services, LLC, to assist with the arrest of the COSCO BUSAN. Id. ¶ 32(d). Audet & Partners' Motion for an OSC

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helped insure that the Claims Process established by Defendants was conducted in a fair manner, and the law firm successfully petitioned the Court for an Order enjoining Defendants from attempting to get fishermen who participated in the OPA Claims Process from giving up their rights to participate in this action. Audet & Partners worked with the Settlement Claims Administrator regarding the class notice plan, the claim form, publication notice, and the class notice. Id. ¶ 32(j). With the exceptions

noted below, the Court finds that the time Audet & Partners expended on this case was reasonable. 2. Reasonable Rates

Attorneys, paralegals and legal assistants for Audet & Partners billed at rates ranging from an hourly rate of $650 for William Audet, who spent 639.82 hours working on this case, to hourly rates of $100 for a number of legal assistants or paralegals. Audet Decl. Ex. 4 ("Audet Chart"). For the reasons

explained above when discussing CPM's hourly rates, see Part

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IV.A.2, supra, the Court finds that Audet & Partners' hourly rates are reasonable. C. Objections

Defendants filed objections to Class Counsel's time records. The Court addresses each objection. 1. Block Billing

Defendants contend that Class Counsel engaged in excessive block billing, thereby hampering the Court's ability to determine the reasonableness of the hours expended on this case. Objs. at 1-2. Defs.'

Defendants request the Court reduce Class Counsel's Id.

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block billing entries by at least thirty percent. The Court denies the request.

The Court has "authority to

reduce hours that are billed in block format . . . because block billing makes it more difficult to determine how much time was spent on particular activities." Welch v. Metro. Life Ins. Co.,

480 F.3d 942, 948 (9th Cir. 2007); but see Wershba, 91 Cal. App. 4th at 255 (fee awards permitted in absence of detailed time sheets). Here, the time records submitted by Audet & Partners and

CPM are sufficiently detailed for the Court to determine the reasonableness of the hours expended. Defendants, for example,

complain about Audet's time entry for November 20, 2007, where he billed 13.75 hours based on 18 separate tasks. 2. See Defs.' Objs. at

While, as explained below, see Part IV.C.7, infra, the Court

reduces Audet's fee request for time spent communicating with the media, this fee reduction shows that the time entries are sufficiently clear and detailed for the Court to evaluate their reasonableness. The Court denies Defendants' request for a

reduction based on block billing.

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2.

Tarantino State Court Action

Defendants object that several time entries relate to work performed solely in connection with the Tarantino state court action. Defs.' Objs. at 3. However, as explained above, the

settlement in this case resolves the class claims of the Dungeness Crab fishermen brought here and in state court. Defendants point

out that CPM seeks fees for work done to prepare and serve the Tarantino complaint and to obtain complex designation in the Tarantino case. Id. at 3. CPM seeks reimbursement for fifty

percent of this time, which is reasonable, because this work benefited Dungeness Crab fishermen. Now that Defendants are in

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possession of redacted versions of CPM's time records, Defendants can make sure that CPM does not seek duplicate recovery in the Tarantino action. Defendants object that Audet & Partners' records include entries relating to mediations and discovery that took place after the parties signed a Memorandum of Understanding. 3. Defs.' Objs. at

According to Defendants, there were no additional mediations or

additional discovery relating to the Dungeness Crab claims after the MOU was signed. Moriarty Decl. ¶ 5.12 It appears, therefore,

that time entries for mediation and discovery after November 2009 can only relate to the Tarantino action. Also, Adel Nadji's time See

entries concerning opt-outs do not relate to this case.

Christman Decl. ¶ 10; Second Christman Decl. ¶ 8 (no requests for

12

Anne Moriarty ("Moriarty"), counsel for Defendants Regal Stone, Fleet Management and the M/V COSCO BUSAN, filed a declaration in support of Defendants' Objections to Class Counsel's fee records. ECF No. 278.

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exclusion).13

Accordingly, the Court reduces Audet & Partners'

requested fees by $16,026.14 3. Plaintiffs Who Withdrew

Defendants point out that, during the course of this litigation, some Named Plaintiffs withdrew. Defs.' Objs. at 4.

Defendants contend they should not be held responsible for fees Class Counsel incurred due to decisions to withdraw. Id. However,

Class Counsel assisted many fishermen who ultimately decided to individually settle, and work by Class Counsel to maintain the viable of this class action is recoverable. Accordingly, the Court

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denies the request to reduce the fee award based on fees incurred dealing with the withdrawal of Named Plaintiffs. 4. Work Relating to Non-Class Action Cases

Defendants object to Class Counsel's time entries relating to non-class action cases filed against Defendants as a result of the oil spill. Defs.' Objs. at 4. Defendants contend that Class

Counsel should not be compensated for work relating to a claim by Next Seafood, a crab processor that is not a class member in this case or the Tarantino action. respond to this objection. See id. Class Counsel does not

Accordingly, the Court reduces Audet &

Partners' award by $6316.50.15
13

Rachel Christman ("Christman"), case manager at Gilardi & Co., LLC, filed two declarations related to this motion. ECF Nos. 216, 240. Defendants request that Audet & Partners' fees be reduced by $16,053,50. This includes a time entry for A. Bustamante on May 15, 2009, but there is no such time entry in the records. The Court reduces Audet's fees by $16,026 ($16,053.50 - $27.50 = $16,026). Time entries reflecting work on Next Seafood's claim include Audet's entries for March 14, 2008, April 8, 2009, April 23, 2009, 17

14

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With regard to the other time entries that refer to related cases, the Court finds that the work performed advanced this class action. For example, Fleet Management's guilty pleas in the

criminal action would have been admissible evidence in this case. Also, this Court's finding in Continental Insurance Co. v. Regal Stone, Case No. 08-2052, that Section 1198 of the California Harbors and Navigations Code is not preempted by federal law is relevant to the claims brought by Dungeness Crab fishermen because it helps establish the liability of the shipowner for the actions of the ship's pilot. Other than the time entries related to Next

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Seafood, the Court will not reduce Class Counsel's request for fees based on work done in connection with related cases. 5. Clerical Work

Defendants seek a reduction of fees based on time spent on clerical work and related administrative tasks. In Missouri v.

Jenkins, the Supreme Court held that a "'reasonable attorney's fee' provided for by statute should compensate the work of paralegals, as well as that of attorneys." 491 U.S. 274, 285 (1989). Both the

Ninth Circuit and California courts allow clerical and secretarial work to be included in the Court's determination of reasonable attorneys' fees. Trs. of the Constr. Indus. and Laborers Health

and Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006); Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal. App. 3d 914, 951 (Ct. App. 1985). Hence, the Court denies

and June 3, 2009; McShane's entries for March 14, 2008, and March 17, 2008; Nadji's entry for May 5, 2009; Chamberlin's entry for June 3, 2009; and Chase's entry for January 24, 2008, and March 19, 2008. 18

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Defendants' request to reduce the fee award based on time entries describing paralegal or clerical work. 6. Duplication of Work

Defendants contend that Class Counsel's records reflect significant evidence of duplication. Defs.' Objs. at 5. With

regard to work performed on the OSC, the time records do not support Defendants' contention. Audet states that his firm served

as the lead counsel on the motion, and that CPM provided support including, but not limited to, class member declarations. Audet Decl. ¶ 5. Supp.

The time records support this statement because

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the vast majority of the work performed by CPM on the OSC motion was performed by a CPM associate, Stuart Gross. Time Report. Defendants contend it was unnecessary and duplicative for one attorney from both CPM and Audet & Partners to prepare for and attend the five COSCO BUSAN crewmember depositions taken in connection with a civil action filed by the United States Government. Defs.' Objs. at 6. The Court finds it was not See CPM Allocated

duplicative for these two firms to have one attorney present at each of the depositions to ensure that the deposition testimony could be entered into evidence in either this case or in the Tarantino state court action.16 Defendants contend that it was unnecessary and duplicative for five attorneys from CPM and Audet & Partners to prepare for and attend the one-day mediation in December 2008. Defs.' Objs. at 7.

Class Counsel responds that Defendants were represented at the
16

Stuart Gross appears to have duplicated his May 19, 2008 time entry of 10.5 hours. The Court reduces CPM's fee request by $3675 for this double billing ($350 x 10.5). 19

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mediation by three partners from Keesal, Young & Logan, and three representatives from Hudson Marine Management Services ("Hudson Marine"). Resp. to Objs. at 4. Having reviewed the time entries

associated with preparing for and attending the mediation, the Court finds Class Counsel's time was reasonable. Defendants also

object to a number of other single entries in the time records. Defs.' Objs. at 8. Having reviewed these entries, and having

considered Defendants' objections to them, the Court finds that the time spent and work performed was neither unnecessary nor duplicative. 7. Media Contacts

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17

The Court finds that Class Counsel should not be compensated for time spent interacting with the media. Such contacts serve to

enhance Class Counsel's reputation, and that is compensation enough. Having reviewed Audet's time entries, the Court estimates

he spent about twenty hours interacting with the media, and hence the Court reduces his requested award by $13,000. Having reviewed

CPM's time entries that describe contacts with the media, the Court reduces CPM's award by $3087.50.17 8. OPA Claims Process

Defendants object to time spent assisting individual fishermen submit their OPA claims. Defs.' Objs. at 9. The Court has

reviewed some of the correspondence between Lead Plaintiffs, Class Counsel and Hudson Marine as part of the Lead Plaintiffs' pursuit

Based on CPM's time records, the Court estimates that Frank Pitre spent approximately 2.5 hours dealing with media contacts, Stuart Gross spent approximately 1.5 hours, and Nirav Engineer spent approximately 2.5 hours. (2.5 x $775) + (1.5 x $350) + (2.5 x $250) = $3087.50.

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of their claims.

See Gross Decl. Exs. 1-22.18

The Court is Lead

persuaded that Lead Plaintiffs required attorney assistance. Plaintiffs were awarded $510,749.49 in short-term claims. Decl. ¶ 32.

Pitre

Class Counsel should be compensated for their work The Court denies the request to exclude

assisting Lead Plaintiffs.

work performed on behalf of individual fishermen. D. Revised Lodestars

Audet & Partners expended 1955.65 hours in the prosecution and settlement of this case. Audet Decl. ¶¶ 34-36. These hours

multiplied by reasonable hour rates resulted in a requested lodestar of $890,185.45. Id. Having reviewed the time records of

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Audet & Partners in camera, and having considered Defendants' objections, the Court finds that the lodestar should be reduced by $35,342.50.19 Therefore Audet & Partners' revised lodestar, based

on the Court's determination of reasonable hours expended and reasonable rates charged, is $854,842.95. CPM expended 1268.60 hours in the prosecution and settlement of this case. Pitre Decl. ¶ 24. These hours multiplied by

reasonable hour rates result in a requested lodestar of $434,392.50. Id. Having reviewed the time records of CPM in

camera, and having considered Defendants' objections, the Court finds that the lodestar should be reduced by $6762.50.20 Therefore, CPM's revised lodestar, based on the Court's

18

Gross filed a declaration in support of Plaintiffs' Response to Defendants' Objections to Class Counsel's Fee Records. ECF No. 280. $16,026 + $6316.50 + $13000 = $35,342.50. $3675 + $3087.50 = $6762.50. 21

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determination of reasonable hours and reasonable rates, is $427,630. E. Requested Enhancement Mot. for Attorneys'

Class Counsel requests a 1.5 multiplier. Fees at 2, 17. warranted.

Defendants contend that a negative multiplier is Other than the reductions outlined above,

Opp'n at 25.

the Court neither enhances nor reduces the revised lodestars. Under California law, the party seeking a fee enhancement bears the burden of proof. Ketchum, 24 Cal. 4th at 1138. In

determining whether to include a fee enhancement, the trial court takes into account such factors as contingent risk and exceptional skill. Id. The purpose of such an adjustment is to fix a fee at Id. at 1132. "In

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the fair market value for the particular action.

effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill to justify augmentation of the unadorned lodestar in order to approximate the fair market rate for such services." The Court finds that a multiplier is not justified. Id.

While

Class Counsel prosecuted this case on a contingent-fee basis, see Pitre Decl. ¶ 26; Audet Decl. ¶ 38, the risks were not as great as in other such cases. Before this lawsuit was filed, Regal Stone

had been designated as the responsible party for the oil spill pursuant to the Lempert-Keene Act. See Opp'n at 5. This act See Cal. Gov't

imposes strict liability on the responsible party.

Code § 8670.56.5(a) ("A responsible party . . . shall be absolutely liable without regard to fault for any damages incurred by any injured party that arise out of, or are caused by a spill . . . ."). The statute provides for reasonable attorneys' fees and

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costs.

Id. § 8670.56.5(f).

Although Defendants vigorously opposed

the efforts to prosecute this case as a class action, the Court finds that the underlying legal standard made this case less risky than comparable contingent-fee cases. The Court does not deny that Class Counsel litigated this case in a skillful manner. However, the Court has already taken into

account the skill and experience of Class Counsel in determining that Class Counsel's hours expended and rates charged were reasonable. The results do not warrant a fee enhancement. Forty

crewmembers have applied for the benefits made possible by this settlement, and their total recovery will not exceed $41,750. See Taylor Decl. in Resp. to Oct. 22, 2010 Order ¶ 36. The number of

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skippers in the class is not likely to be much higher than thirtytwo. See Supp. Taylor Decl. in Resp. to Oct. 22, 2010 Order ¶¶ 7These skippers are likely to recover approximately $1.7

8, 15-17.

million, but Class Counsel has essentially obtained for them a twenty-five percent premium over what they were entitled to under the OPA Claims Process. As a result of this settlement, skippers

are likely to receive approximately $343,332.17 in excess of what they could have received through the OPA Claims process. ¶ 21. The Court does not doubt that Class Counsel played an important role in ensuring that the OPA Claims Process proceeded in a fair and transparent manner, and in ensuring that important studies were performed to evaluate the effects of the oil spill on the Bay Area's crab fishery. Having reviewed Class Counsel's time See id.

records, the Court finds a substantial award of attorneys' fees is

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warranted.

However, Class Counsel has not met its burden of

convincing the Court that this award should be enhanced. F. Costs

Audet & Partners submitted a cost report showing the firm incurred costs of $40,911.39. Report"). Audet Decl. Ex. 5 ("Audet Cost

The costs include expert fees, photocopying, online

research, court filings, transcripts, and telephone and facsimile costs. Id. Audet declares he avoided unnecessary costs and Supp. Audet Decl. ¶ 11.

excluded unreasonable expenses.

Considering that this litigation has been pending for over two-anda-half years, and considering the clear need for expert analysis of the issues in this case, the Court finds the costs incurred by Audet & Partners are reasonable. CPM submitted a cost report showing the firm incurred costs of $29,144.55. Pitre Decl. Ex. 4 ("CPM Cost Report"). The costs

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include expert fees, court costs, depositions, document production, investigation costs, online research, photocopies, and amounts paid to process servers. Id. Gross declares the incurred costs were the Second Supp. Gross Decl. ¶ 14.

product of allocation decisions.

CPM separated out costs solely attributable to the pursuit of Finfish claims, and the remaining costs were divided in half and allocated equally between the pursuit of Dungeness Crab claims and Finfish claims. Id. The Court finds that CPM's allocated costs of

$29,144.55 are reasonable. G. Service Awards

Plaintiffs request a combined service award of $37,500, consisting of payments of $7500 to each of the five Named Plaintiffs. Such plaintiffs are eligible for reasonable incentive

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payments.

In re Cellphone Fee Termination Cases, 186 Cal. App. 4th

1380, 1393-95 (Ct. App. 2010); Staton v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003). The declarations filed by Allen Loretz, John

Tarantino, Steven Fitz, Sean Hodges, and John Atkinson state that they each participated actively in the litigation. 221. ECF Nos. 217-

The requested $7500 service award is included in the

Settlement Agreement, and it has already been agreed to by the Defendants. See Settlement Agreement at 26. The service award

does not reduce potential payments to other class members. Accordingly, the Court GRANTS the request for service awards of $7500 each to Allen Loretz, John Tarantino, Steven Fitz, Sean Hodges, and John Atkinson.

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V.

CONCLUSION In summary, as of November 3, 2010, twenty-seven skippers who

are part of the class have been paid $1,161,363.43.

The number of

skippers who are part of this class is not likely to exceed thirtytwo, and their total potential recovery is not likely to exceed $1,716,660.83. As a result of this class action, these skippers

will receive approximately $343,332.17 in excess of what they could have received through the OPA Claims Process. The number of

crewmembers who are part of the class will not exceed forty, and the highest possible amount crewmembers will be paid as a result of this class action is $41,750. Id. ¶ 36.

Having reviewed all of the submissions in support of, and in opposition to, the Motion for Attorneys' Fees and Costs, and for the reasons explained above, the Court GRANTS IN PART and DENIES IN PART the Motion. The Court hereby awards Audet & Partners, LLP

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$854,842.95 in attorneys' fees and $40,911.39 in costs.

The Court

hereby awards Cotchett, Pitre & McCarthy $427,630 in attorneys' fees and $29,144.55 in costs. The Court GRANTS the request for a

service award of $7500 each to the five Named Plaintiffs in this case: Allen Loretz, John Tarantino, Steven Fitz, Sean Hodges, and John Atkinson. The Settlement Agreement provides that the settling Defendants shall be solely responsible for all claims administration expenses. Settlement Agreement at 18. Class Counsel must continue to monitor

the claims process to ensure Dungeness Crab skippers and crewmembers receive their appropriate relief, but the Court will entertain no further motions for attorneys' fees or costs in this case.

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IT IS SO ORDERED.

Dated:

November 23, 2010 UNITED STATES DISTRICT JUDGE

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