Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Filing 94

Statement re 86 Supplemental MOTION to Appoint Lead Plaintiff and Lead Counsel and Proposed Six-Month Discovery Plan OF WITHDRAWAL OF MOTION FOR APPOINTMENT OF BECK & LEE AS INTERIM CLASS COUNSEL by Beck & Lee Business Trial Lawyers. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Beck, Jared) (Filed on 8/18/2010)

Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Doc. 94 Att.

Exhibit 3

Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10CV02351 MHP EXH. ISO STATEMENT OF WITHDRAWAL OF MOTION FOR APPOINTMENT OF BECK & LEE AS INTERIM CLASS COUNSEL

Dockets.Justia.c

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK (233743) ELIZABETH LEE BECK (233742) Courthouse Plaza Building 28 West Flagler Street, Suite 555 Miami, FL 33130 Telephone: [phone] Facsimile: 786 664 3334 [e-mail] [e-mail] Counsel for Plaintiffs and the Proposed Classes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EVANGELINE RED, JENNIFER RED, and RACHEL WHITT, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. UNILEVER PLC and UNILEVER UNITED STATES, INC., Defendants. Case No: 3:10-cv-00387 JW (HRLx) Pleading Type: Class Action DECLARATION OF JARED H. BECK IN SUPPORT OF BECK & LEE BUSINESS TRIAL LAWYERS' OPPOSITION TO NOTICE OF TERMINATION OF BECK & LEE BY PLAINTIFFS EVANGELINE RED, JENNIFER RED, AND RACHEL WHITT AND [PROPOSED] ORDER Judge: The Honorable James Ware

Red et al. v. Unilever PLC et al., Case No. 3:10-cv-00387 JW DECLARATION OF JARED H. BECK

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I, Jared H. Beck, declare: 1. My name is Jared H. Beck. I am over 18 years of age, and I have personal

knowledge of the facts set forth in this Declaration. 2. I am an active member of the California and Florida Bars, and have worked as an

attorney since 2004. From 2004 to 2005, I worked as an associate at Quinn Emanuel Urquhart Oliver & Hedges, LLP in Los Angeles, California. In 2005, I moved to Miami, Florida, where I worked as an associate at Morgan Lewis & Bockius until 2007. In July of that year, I started a law firm, Beck & Lee Business Trial Lawyers ("Beck & Lee"), in Miami with my wife and law partner, Elizabeth Lee Beck ("Ms. Beck"), which we have co-managed continuously until the present. 3. I have known Gregory Weston ("Mr. Weston") since 2001, when we met as first-

year law students. After graduation, we kept in touch and would periodically talk on the phone, exchange e-mail correspondence, and meet each other in person. 4. My understanding is that Mr. Weston was employed as an associate attorney at

the law firm formerly known as Lerach Coughlin Stoia from sometime in 2005 until approximately January 2008, when he formed his own solo practice, The Weston Firm. 5. After Mr. Weston started his firm, we worked together on two or three real estate

matters in Florida and California. 6. In approximately May or June 2009, Mr. Weston approached me regarding an

investigation he was conducting into the food-labeling practices of Unilever PLC. Mr. Weston asked if Beck & Lee would be interested in assisting with the investigation and potentially jointly prosecuting the matter with his firm. 7. I agreed to Mr. Weston's proposal and proceeded, along with Ms. Beck, to assist

him with the investigation, which culminated on October 28, 2009, in the filing of a class action, Red et al. v. Unilever United States, Inc. et al., Case No. 2:09-cv-07855-MMM-AGR, in the Central District of California. Eventually, the case was transferred to the Honorable James Ware in the Northern District of California, San Jose Division and assigned the new case number 5:10cv-00387-JW. On June 21, 2010, the parties reached a preliminary settlement; the motion for

1
Red et al. v. Unilever PLC et al., Case No. 3:10-cv-00387 JW DECLARATION OF JARED H. BECK

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

preliminary approval is presently due by September 3, 2010, and Judge Ware has set a hearing on the motion for September 27, 2010. 8. Shortly after filing Red v. Unilever, The Weston Firm and Beck & Lee began

working together on other food-labeling investigations and cases. 9. In February 2010, The Weston Firm, Beck & Lee, and a third law firm, Reese

Richman LLP ("Reese Richman"), signed a Joint Prosecution Agreement ("February JPA") covering the three firms' joint prosecution of the Red v. Unilever matter, along with two other consumer class actions. A true copy of the February JPA is attached hereto as Exhibit A. 10. In March 2010, The Weston Firm and Beck & Lee signed a Joint Prosecution

Agreement ("March JPA") formalizing their cooperation with respect to their joint prosecution of eight consumer class actions. Mr. Weston extensively negotiated the terms of this agreement with Ms. Beck. The Weston Firm and Beck & Lee subsequently signed addenda to the March JPA in May, June, and July 2010. True copies of the March JPA and amendments are attached hereto as Exhibit B. 11. Jack Fitzgerald ("Mr. Fitzgerald") joined The Weston Firm as its second attorney

in February 2010. 12. From its inception, the relationship between The Weston Firm and Beck & Lee

appeared to be a highly cooperative and productive one. The attorneys communicated on a daily or near-daily basis and participated in weekly conference calls, extensively cooperating with one another on litigation strategy as well as in the drafting of pleadings, motions, and other papers. Beck & Lee paid the bulk of costs associated with prosecuting the joint actions, all with The Weston Firm's knowledge and encouragement, and reimbursed The Weston Firm for costs which it invoiced to Beck & Lee. Both firms were originally retained by clients to represent them as named plaintiffs, and it was understood that such individuals ­ no matter which firm signed the retainer agreement and interacted with the client ­ would have to consent to being represented by both The Weston Firm and Beck & Lee in any class action subject to the March JPA. 13. With respect to the Red v. Unilever action, Beck & Lee has expended substantial

hours and costs, including doing the vast majority of research and writing on Plaintiffs' 2
Red et al. v. Unilever PLC et al., Case No. 3:10-cv-00387 JW DECLARATION OF JARED H. BECK

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Opposition to Unilever United States Inc.'s Motion to Dismiss, as well as spearheading the settlement negotiations, starting with the parties' mediation March 18, 2010, and culminating with the settlement term sheet signed by the parties on June 21, 2010 in San Jose. This was all done with The Weston Firm's knowledge, consent, encouragement, and cooperation. All of the Plaintiffs in this action originally retained The Weston Firm, and Beck & Lee has never met or had contact with any of them. 14. On July 29, 2010, I presented oral argument at the hearing on a motion to dismiss

in another of The Weston Firm and Beck & Lee's joint cases, Peviani v. Hostess Brands Inc., Case No. CV 10-2303-CBM (VBKx), before the Honorable Consuelo B. Marshall in the Central District of California. After the hearing, which ended at approximately 10 a.m., The Weston Firm's sole employee and office assistant, Roz Sutton ("Ms. Sutton"), met Ms. Beck and me at the courthouse in downtown Los Angeles to give us a ride back to our hotel. Mr. Weston was not present. 15. During the ride, Ms. Sutton and Ms. Beck conversed with one another in the front

of the car while I sat in the backseat. I heard Ms. Sutton describe her experiences working at The Weston Firm to Ms. Beck. Ms. Sutton described the terms of her employment, and mentioned that she had been promised a "bonus" by Mr. Weston, because she had convinced her roommate, June Higginbotham ("Ms. Higginbotham"), to serve as a named plaintiff in class action litigation. Ms. Sutton also mentioned that Ms. Higginbotham stood to gain a fee from The Weston Firm in exchange for serving as a class representative; when questioned by Ms. Beck, Ms. Sutton indicated that this fee was separate from any incentive award to be awarded by a court, and that the fee was not mentioned in her attorney-client agreement but based on a "handshake" with Mr. Weston. Ms. Sutton also mentioned that under the terms of her employment agreement, she stood to gain a bonus from the proceeds of any case settlement, provided she billed a certain number of hours. This was the first time I received any indication that The Weston Firm had engaged in or was engaging in practices of such a nature. 16. Immediately after Ms. Sutton dropped us off at the hotel, I had a lengthy

discussion with Ms. Beck about how to handle the issue. We concluded that we were dutybound to investigate: (1) the truth of Ms. Sutton's comments; and (2) if they were true, the extent 3
Red et al. v. Unilever PLC et al., Case No. 3:10-cv-00387 JW DECLARATION OF JARED H. BECK

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to which the plaintiffs who originally retained The Weston Firm in the jointly prosecuted cases were involved. We agreed to start the investigation by obtaining the contact information for the named plaintiffs originally retaining The Weston Firm, and then speaking with them directly. 17. Upon our return to Miami, on Friday, July 30, 2010, Ms. Beck directed our

paralegal, Alejandro Gutierrez, to begin the process of obtaining the clients' contact information from The Weston Firm. 18. On Sunday, August 1, 2010, Ms. Beck and I travelled to the Tampa area, where

we had three days of depositions to defend and take, on August 2, 3, and 5, in another matter, BCJJ, LLC v. LeFevre et al., Case No. 8:09-cv-00551-EAK-EAJ (M.D. Fla.). Both of us spent the entire week in the Tampa area with the exception of August 5, when I travelled between Tampa and Miami to attend a hearing that morning in another matter. 19. Without any prior explanation or notice, on August 12, 2010 at approximately

midnight, I received an e-mail from Mr. Weston attaching 12 separate letters in a single pdf file. A true copy of the e-mail and attachment is attached hereto as Exhibit C. With one exception, I have never met or had any contact with any of the individuals or businesses referenced in these letters. The one exception is Dr. Gregory Perrault, who is referenced in the 10th letter in the pdf file, and who is the proprietor of Cats & Dogs Animal Hospital, the lead plaintiff in an action being jointly prosecuted by The Weston Firm and Beck & Lee, and styled Cats & Dogs Animal Hospital et al. v. Yelp!, Inc., Case No. 3:10-cv-02351-MHP (N.D. Cal.). Ms. Beck and I have spoken and e-mailed with Dr. Perrault on a number of occasions, and we met him in person in San Francisco on July 17, 2010, where he expressed a high degree of satisfaction with Beck & Lee's representation. In all our interactions, Dr. Perrault has never expressed dissatisfaction or a desire to terminate Beck & Lee as his counsel. I have never offered anything of value to Dr. Perrault or any other class action plaintiff in exchange for their participation in a class action lawsuit. The individuals and businesses referenced in Exhibit C are all plaintiffs who originally retained The Weston Firm. 20. On August 13, 2010, Beck & Lee was served with a Complaint filed by The

Weston Firm in the Southern District of California naming both Beck & Lee and Reese Richman as defendants. A true copy of the Complaint is attached hereto as Exhibit D. 4
Red et al. v. Unilever PLC et al., Case No. 3:10-cv-00387 JW DECLARATION OF JARED H. BECK

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page6 of 7

Case5:10-cv-00387-JW Document73

Filed08/18/10 Page7 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DATED: August 18, 2010 Respectfully Submitted, s/Elizabeth Lee Beck Elizabeth Lee Beck BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK ELIZABETH LEE BECK 28 West Flagler Street, Suite 555 Miami, FL 33130 Telephone: [phone] Facsimile: 786 664 3334 Counsel for Plaintiffs and the Proposed Class

6
Red et al. v. Unilever PLC et al., Case No. 3:10-cv-00387 JW DECLARATION OF JARED H. BECK

Case5:10-cv-00387-JW Document73-1

Filed08/18/10 Page1 of 4

Exhibit A

Case5:10-cv-00387-JW Document73-1

Filed08/18/10 Page2 of 4

Case5:10-cv-00387-JW Document73-1

Filed08/18/10 Page3 of 4

Case5:10-cv-00387-JW Document73-1

Filed08/18/10 Page4 of 4

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page1 of 14

Exhibit B

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page2 of 14

JOINT PROSECUTION AGREEMENT T h i s Joint Prosecution ("Agreement") madeby and between law Agreement is the f i r m s andlorattornevs ofi . The WestonFirm ("Weston");and o Beck & Lee Business Trial Lawyers(',Beck',). W e s t o nand Beck arereferredto collectivelyin this Agreement the ,,Parties', as or i n d i v i d u a l l yas a "Party." W H E R E A S ,Westonand Beck arelaw firms based SanDiego, CA andMiami, in F L , respectively; WHPREAS,the Partiesseekto cooperate ajoint ventureto prosecute as civil _ lawsuits, including,but not limited to, proposed class_ actions. privateattomeygeneral a c t i o n sandmass , actions. throughout counlry the andabroad. is necessaryl hs W H E R E A S ,the Partiesseekto clarif, the duties,responsibilities entitlements and o f e a c h Partv: W H E R E A S ,currentlypendingarethe following proposed classactionlawsuits ( " t h e Actions")wherethe Partieshavdcontributed w'ili contribute: or y. R o s e n UnileverUnitedStates, &c., No. 09-cv-2563 (NI.D.Cal.)("Rosen',) JW R e det al. y. Unilever UnitedStates, Inc. et al., 10-cv-387 (N.D. Cal.) CB (originally No. 09-cv-07855 MMM (C.D.Cal.)) ("Re<!") H i g g i n b o l h a met al. v. Kellogg Co et al..,No.10-cv-225MMA (S.D.Cal.) ("Higginbotham") C a t sand DogsAnimal Hospital,Inc.v. Yelp!Inc, No. CVl0-1340 VBF (SSx) Y a m u l SmartBalance v. Inc.,CV10-01028 (AGRX) GW C h a c a n a c a al. v. The QuakerOatsCo. C10-00502 et RS B a h n et al. v. Nestle tl,S.l. CVl0-01022 AHM(VBKX) R e det al. v. Kroger Co.2:10-cv-1025 DMG (MANX) C o l l e c t i v e l y ,the abovecases referred hereinasthe Joint Prosecution are to Litigation. on [ c o n t i n u e d the next page]

-l3/7/2010 8:54,'25 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page3 of 14

ngaged extensive in negotiations regarding an . WIIEREAS, the Partiesha-ve organizational structure most efficientlyprosecute above-referenced to the actiois. The Parties believeit is in the bestinterests oftheir clients,andthe classes they seekto r e p r e s e n tto memorialize duties,responsibilities entitlements , the and ofelch parlv in " o r d e rto cooperate most efficiently andproductivelyin prosecuting suchactions. T h e Parties AGREE AS FOLLOWS: Orqanizational Structure.It is understood agreed and that Westonand _L B e c k will seekan orderfrom the court appointing themto serveas co-leadcounsel for t h e plaintiffs,-and proposed the classes, theseaitions. Eachparly hasa duty to file in appropriate NoticesofAppearancein any casein the JointPro6ecuiion Agreeinent. 2. jointly shall explore,develop The Parties , &tqLPe4U4dQEgI4ie!. (in a n dprosecute theirjoint discretion) JointProsecuti6n the Liiigation. ihe Parties expressly acknowledge and-agree all major decisions that conceming filing, the prosecution-or resolutionofJoint Prosecution Litigation lawsuits,including,without l i m i t a t i o n ,discovery, casemanagement, strategy, trial tactics,settlement, rltention of e x p e r t sor any presscommunications, , jointly between shallbe made them. No Partyhas ' p r o m i s e dwarranted guaranteed particularresultfrom the Joint Prosecution , or any L i t i g a t i o n . EachPartyexpressly acknowledges agrees the investigation and that and prosecution ofJoint Prosecution Litigation involvesconsiderable andis speculative. risk E a c hPaffy will useits besteffortsto effectuate activitiescontemplated the heieby,and a c h i e _ v e optimumrecoveryfor the clients,the classes the they seekto represent the and l a w firms, andto fulfill the termsand conditions this Asreement. of

3. A m e n d m e n t s .This Agreement may be amended add additionalcases to to t h e J o i n t Prosecution Litigation upon the agreement execution and ofan Addendumby Partig!("Additional Cases"), which case termsofthis Agreement in the shall applyto 111 t h e AdditionalCases.
4. Fee Sharine. After reimbursement all expenses costs,aswell as of and a n y payments othercounsel to who may become involvedin a lawsuitin the Joint I,itigation (andhavecompensable andreimbursable Prosecution time expenses), ifany, a l l feesawarded the courtto the Parties by shallbe dividedamongthe Partiesaccordiirg t o the following: F e e swill be allocated according a pro ratasharg to ofthe work doneby each P a r t yascompared the work doneon a lawsuitin total. to T h e Partiesanticipate that Westonwill do roughlyfifty percent(50%) ofthe work a n dthatBeckwitl do roughlyfifty percent ofihe work 150%) A n y referralfee obligationsby Beck or Westonshallbe paid from their respective 5 0 / 5 0 %split, and not be treatedasan expense, or payment othercounsel stated cost to as aDove. T h e Parties will eachundertake substantive work sufficientto iustifr the respective allocationof attomeys' (r.e.hoursmultipliedby hourly iates lodestar determined usingthe LaffeyMatrix) andcostsreferenced herein. In the eventthat any P a r t yfails to do so,the Partiesacknowledge the percentage that allocationis subject an to appropriate adjustment accurately to reflectthe substantive work performed.The Parties a g r e e negotiate good faith on the amountofany necessary to in adjustment.The Pafties f u r t h e racknowledge that, for any adjustment occur,the firm subjectto the proposed to a d j u s t m e nmustbe first put on noticethat onemay be requested t (based results on o f monthly lodestar and expense reportingreferenced herein)andbe given an opportunity 317/2010 8:54:25 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page4 of 14

to correctany discrepancy may support adjustment.Finally, the partiesagree that an that n o Partywill undertake significantwork without the prior consent and approvalifall

5. W i l h d l a l v , a l .In the ev,ent Partywithdrawsascounselfrom any casein any t h e Join-t Prosecution Litigation,the following shill apply to the feesallocationf6r that case, only:.the only: the withdrawnPafty shall be comDensated the work doneon that caseun Paftysha,ll compensatedToithe for up ^ untiillwithdrawalat the rate of$35/hour-from anv recovervohtained rhc end nfthe at ar of$35/hour,fiom any recoveryobtained the at ofthe case, afterreimbursement l r s e m e n tofall expenses costs" well as anv Davments other andcosts,as any payments otler to c o u n s ewho may becomeinvolved in a_lawsuit the JointProseiriti6nLitigation (and l in h a v ecompensable time andreimbursable expenses), ifany. Ifthere is no reiovery, then t h e withdrawnPartyshall be entitledto nothingfor the work done,asthe casehajnot g e n e r a t e d feesfor ParE. any
I n s t a n c e s withdrawal:ifany Partytakeson full-time salaried of work, thenthat w o u l d constitute withdrawal. Any suchPartyshallpromptlyfile a Notice of a W i t h d r a w a lascounsel. 6. Cost Sharine. The Partiesshalljointly approvethe employment of e x p e r t s othermajor costs,(definedasany singleexpense and over $500). B e c k shall be responsible the payment for offifty percent(50%) ofthe costsconnected w i t h the JointProsecution Litigation, and Westonshallbe responsible the payment for of f i f t y percent(50%) ofthe costi. However,eachfirm will be responsible t6eir own for s t a f f ,meals,travel,copies,faxes,research costs, telephone variousintemalcosts. and 7. Time-Keeping.EachPartyshallmaintaincontemporaneous records time t o keep.track (attomeyandparalegal oftheir respective lodestar liours x $ hourly rates p e r eachattorney/paralegal underthe Lafey Matrix adjusted the venueof the action), for a swell asall out-of-pocket expenses ("Litigation Time and Expenses").Thp Partiesshall exchange their Litigation Time andExpenses a monthlybasris, the 15hofevery on on other month,starting March i5,2010. Ifany ofthese daysfallson a weekend a or h o l i d a y ,the reportsshall be exchanged the next business on day. Westonshallbe in c h a r g e maintaining Litigation Time andExpense of the reports, and makingsurethat e a c hPady, andothercounsel that may become involvedin the Joint Prosecution L i t i g a t i o n ,providesits reporton a timely basis. The failureto timely submitLitigation T i m e andExpense repoftsmay resultin non-payment time andreimbursemeniof of expenses. 8 . Arbitration. Any disputeor controversy enforceor interpretany term or to p r o v i s i o nofthis Agreement to recoverany sumduepursuant this Agreement or to shall b e subjectto binding,non-appealable, arbitration be conducted to with Judicial A r b i t r a t i o nMediationServices ("JAMS") with eachPartyto selectan arbitratorfrom the p a n e lsuppliedby the Los AngelesJAMS office andJAMS to providethe third arbitrator f r o m the samepanel. Arbitration shallbe broughtandconducted Los Angeles,CA. in S u c harbitrationshall be the soleremedyto resolvedisputes regarding interpretation the o r enforcement ofany term or provisionofthis Agreement to recoverany sumdue or p u r s u a nto this Agreement.EachPartyexpressly t waivesany right to seekor obtain p u n i t i v eor any form of exemplary damages from the otherParty. 9 . Intesration.EachPartyexpressly acknowledges agrees and that it hasnot a c t e dor reliedupon any inducement, promiseand/or representation, warranty,statement, a g r e e m e nnot expressly forth in this Agreement, that in any disputeor t set and controversy between them connected with the subjectmatterofthis Agreement, each P a r t yexpressly waivesany right to look beyondthe express language contained this in -33/7/2010 8:54:'25 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page5 of 14

Aqree.mglf $9h P.atf acknowledges and.agrees this Agreement negotiated that was voluffanty anoneely between andtneotherparty. lt 1 0 . MinimumFee.Because Weston The Firmhasat present several the in of Actions billeda largemajorityof thehours, notwithstanding formulafor allocation ihe of fees described above, Beckshallnonetheless receive min-imum thirdofthe fees at one awardeto.the d Parties anyaction for where preliminary a and/or final agreement of settleme n t signed thePfuties theresiective is by and defendant(s), aj-udgment or is entered, (eighteen wilhin 1.5years months) olthe date thefiling of thecomplainr. of In consid e ra ti o n theabove, for Beckagrees payWeston's oftf,e filing andsewice to half feesfor theActions,andto makeall reasonibl'e effortsto "catchuo" to Weston until it hasbilled at leastonethird ofthe hours.As partof this effort, on a'll the food product cases otherthanthe Unileveractions, Beckv"ill dothe first draft ofthe respeitivemotion to dismiss opposition briefs. This "Minimum Fee"shallalsoapplyto thebenefitof Weston, the eventof a in settlement orjudgment (eighteen within 1.5years months) thedateofthe filing ofthe of complainl andBeckhasbilied hoursthat wouldresultin Weston'sfeesbeinglessthana thirdaccording theallocation feesdescribed to of above. IN WITNESSWHEREOF, Parties the heretoherebyexecute Agreement, this such maybesigned counterpart! delivered e-maiior facsimile. in and via

DArED: ruw"n7.zoto

DATED: tutur"n 7

,ZO1O

TRIAL BEC K& LEE BUSINESS LAWYERS

El i z abet h Beck Lee

-43 / 7 1 2 0 18:54:25 0 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page6 of 14

This Fee-Sharing Agreement("Agreement") is madeby and betweenthe law firms and/or attorneys of: o The Weston Firm ("WF"); r BeckandLee Business ("8L") Trial Lawyers WF and BL are referredto collectively in this Agreementas the "Parties" or individually as a "Pary." T heAgreement incorporates of the termsof theprevious all 3/7110 ageement between the Partiesattached Exhibit A, except follows: , as as antitrust "The Actions" consistof actionsbroughtfor falsemarking ofpatents; the contemplated actionagainst Adobe;andthe contemplated Kellogg,McNeil actions against ConAgra, Nutrition/Jo h n s o n Johnson, and Hostess, De Kamps, Van andSmucker falseor misleading for labelsandadvertising;andthe contemplated action againstCitysearchfor unfair business practices. Payments from the corporationthat serves a plaintiffin the patentfalse marking actionswill as be awarded the samemanneras legal feesratherthanaccordingto the ownershipofthe in corporation, whose ownership shallbe25%o to Jared each Beck,Elizabeth LeeBeck,Jack Fitzgerald,andGregoryWeston.The partieswill seekto apportionlegal feesandpayments from plaintiff directly to its ownerpartiesin a mannerthat minimizestaxeswithin the the corporation limits imposed applicable by laws.
z"O -/Ql} D A T E D : Pr1,uu

4<-

T H E WESTONFIRM
r )

U
By G r egor y Weston S.

D A r E *u,&oro D:

By

tc
Lee or Elizabeth Beck

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page7 of 14

EXHIBIT A

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page8 of 14

JOINT PROSECUTION AGREEMENT T h i s Joint Prosecution ("Agreement") madeby and between law Agreement is the f i r m s andlorattornevs ofi . The WestonFirm ("Weston");and o Beck & Lee Business Trial Lawyers(',Beck',). W e s t o nand Beck arereferredto collectivelyin this Agreement the ,,Parties', as or i n d i v i d u a l l yas a "Party." W H E R E A S ,Westonand Beck arelaw firms based SanDiego, CA andMiami, in F L , respectively; WHPREAS,the Partiesseekto cooperate ajoint ventureto prosecute as civil _ lawsuits, including,but not limited to, proposed class_ actions. privateattomeygeneral a c t i o n sandmass , actions. throughout counlry the andabroad. is necessaryl hs W H E R E A S ,the Partiesseekto clarif, the duties,responsibilities entitlements and o f e a c h Partv: W H E R E A S ,currentlypendingarethe following proposed classactionlawsuits ( " t h e Actions")wherethe Partieshavdcontributed w'ili contribute: or y. R o s e n UnileverUnitedStates, &c., No. 09-cv-2563 (NI.D.Cal.)("Rosen',) JW R e det al. y. Unilever UnitedStates, Inc. et al., 10-cv-387 (N.D. Cal.) CB (originally No. 09-cv-07855 MMM (C.D.Cal.)) ("Re<!") H i g g i n b o l h a met al. v. Kellogg Co et al..,No.10-cv-225MMA (S.D.Cal.) ("Higginbotham") C a t sand DogsAnimal Hospital,Inc.v. Yelp!Inc, No. CVl0-1340 VBF (SSx) Y a m u l SmartBalance v. Inc.,CV10-01028 (AGRX) GW C h a c a n a c a al. v. The QuakerOatsCo. C10-00502 et RS B a h n et al. v. Nestle tl,S.l. CVl0-01022 AHM(VBKX) R e det al. v. Kroger Co.2:10-cv-1025 DMG (MANX) C o l l e c t i v e l y ,the abovecases referred hereinasthe Joint Prosecution are to Litigation. on [ c o n t i n u e d the next page]

-l3/7/2010 8:54,'25 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page9 of 14

ngaged extensive in negotiations regarding an . WIIEREAS, the Partiesha-ve organizational structure most efficientlyprosecute above-referenced to the actiois. The Parties believeit is in the bestinterests oftheir clients,andthe classes they seekto r e p r e s e n tto memorialize duties,responsibilities entitlements , the and ofelch parlv in " o r d e rto cooperate most efficiently andproductivelyin prosecuting suchactions. T h e Parties AGREE AS FOLLOWS: Orqanizational Structure.It is understood agreed and that Westonand _L B e c k will seekan orderfrom the court appointing themto serveas co-leadcounsel for t h e plaintiffs,-and proposed the classes, theseaitions. Eachparly hasa duty to file in appropriate NoticesofAppearancein any casein the JointPro6ecuiion Agreeinent. 2. jointly shall explore,develop The Parties , &tqLPe4U4dQEgI4ie!. (in a n dprosecute theirjoint discretion) JointProsecuti6n the Liiigation. ihe Parties expressly acknowledge and-agree all major decisions that conceming filing, the prosecution-or resolutionofJoint Prosecution Litigation lawsuits,including,without l i m i t a t i o n ,discovery, casemanagement, strategy, trial tactics,settlement, rltention of e x p e r t sor any presscommunications, , jointly between shallbe made them. No Partyhas ' p r o m i s e dwarranted guaranteed particularresultfrom the Joint Prosecution , or any L i t i g a t i o n . EachPartyexpressly acknowledges agrees the investigation and that and prosecution ofJoint Prosecution Litigation involvesconsiderable andis speculative. risk E a c hPaffy will useits besteffortsto effectuate activitiescontemplated the heieby,and a c h i e _ v e optimumrecoveryfor the clients,the classes the they seekto represent the and l a w firms, andto fulfill the termsand conditions this Asreement. of

3. A m e n d m e n t s .This Agreement may be amended add additionalcases to to t h e J o i n t Prosecution Litigation upon the agreement execution and ofan Addendumby Partig!("Additional Cases"), which case termsofthis Agreement in the shall applyto 111 t h e AdditionalCases.
4. Fee Sharine. After reimbursement all expenses costs,aswell as of and a n y payments othercounsel to who may become involvedin a lawsuitin the Joint I,itigation (andhavecompensable andreimbursable Prosecution time expenses), ifany, a l l feesawarded the courtto the Parties by shallbe dividedamongthe Partiesaccordiirg t o the following: F e e swill be allocated according a pro ratasharg to ofthe work doneby each P a r t yascompared the work doneon a lawsuitin total. to T h e Partiesanticipate that Westonwill do roughlyfifty percent(50%) ofthe work a n dthatBeckwitl do roughlyfifty percent ofihe work 150%) A n y referralfee obligationsby Beck or Westonshallbe paid from their respective 5 0 / 5 0 %split, and not be treatedasan expense, or payment othercounsel stated cost to as aDove. T h e Parties will eachundertake substantive work sufficientto iustifr the respective allocationof attomeys' (r.e.hoursmultipliedby hourly iates lodestar determined usingthe LaffeyMatrix) andcostsreferenced herein. In the eventthat any P a r t yfails to do so,the Partiesacknowledge the percentage that allocationis subject an to appropriate adjustment accurately to reflectthe substantive work performed.The Parties a g r e e negotiate good faith on the amountofany necessary to in adjustment.The Pafties f u r t h e racknowledge that, for any adjustment occur,the firm subjectto the proposed to a d j u s t m e nmustbe first put on noticethat onemay be requested t (based results on o f monthly lodestar and expense reportingreferenced herein)andbe given an opportunity 317/2010 8:54:25 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page10 of 14

to correctany discrepancy may support adjustment.Finally, the partiesagree that an that n o Partywill undertake significantwork without the prior consent and approvalifall

5. W i l h d l a l v , a l .In the ev,ent Partywithdrawsascounselfrom any casein any t h e Join-t Prosecution Litigation,the following shill apply to the feesallocationf6r that case, only:.the only: the withdrawnPafty shall be comDensated the work doneon that caseun Paftysha,ll compensatedToithe for up ^ untiillwithdrawalat the rate of$35/hour-from anv recovervohtained rhc end nfthe at ar of$35/hour,fiom any recoveryobtained the at ofthe case, afterreimbursement l r s e m e n tofall expenses costs" well as anv Davments other andcosts,as any payments otler to c o u n s ewho may becomeinvolved in a_lawsuit the JointProseiriti6nLitigation (and l in h a v ecompensable time andreimbursable expenses), ifany. Ifthere is no reiovery, then t h e withdrawnPartyshall be entitledto nothingfor the work done,asthe casehajnot g e n e r a t e d feesfor ParE. any
I n s t a n c e s withdrawal:ifany Partytakeson full-time salaried of work, thenthat w o u l d constitute withdrawal. Any suchPartyshallpromptlyfile a Notice of a W i t h d r a w a lascounsel. 6. Cost Sharine. The Partiesshalljointly approvethe employment of e x p e r t s othermajor costs,(definedasany singleexpense and over $500). B e c k shall be responsible the payment for offifty percent(50%) ofthe costsconnected w i t h the JointProsecution Litigation, and Westonshallbe responsible the payment for of f i f t y percent(50%) ofthe costi. However,eachfirm will be responsible t6eir own for s t a f f ,meals,travel,copies,faxes,research costs, telephone variousintemalcosts. and 7. Time-Keeping.EachPartyshallmaintaincontemporaneous records time t o keep.track (attomeyandparalegal oftheir respective lodestar liours x $ hourly rates p e r eachattorney/paralegal underthe Lafey Matrix adjusted the venueof the action), for a swell asall out-of-pocket expenses ("Litigation Time and Expenses").Thp Partiesshall exchange their Litigation Time andExpenses a monthlybasris, the 15hofevery on on other month,starting March i5,2010. Ifany ofthese daysfallson a weekend a or h o l i d a y ,the reportsshall be exchanged the next business on day. Westonshallbe in c h a r g e maintaining Litigation Time andExpense of the reports, and makingsurethat e a c hPady, andothercounsel that may become involvedin the Joint Prosecution L i t i g a t i o n ,providesits reporton a timely basis. The failureto timely submitLitigation T i m e andExpense repoftsmay resultin non-payment time andreimbursemeniof of expenses. 8 . Arbitration. Any disputeor controversy enforceor interpretany term or to p r o v i s i o nofthis Agreement to recoverany sumduepursuant this Agreement or to shall b e subjectto binding,non-appealable, arbitration be conducted to with Judicial A r b i t r a t i o nMediationServices ("JAMS") with eachPartyto selectan arbitratorfrom the p a n e lsuppliedby the Los AngelesJAMS office andJAMS to providethe third arbitrator f r o m the samepanel. Arbitration shallbe broughtandconducted Los Angeles,CA. in S u c harbitrationshall be the soleremedyto resolvedisputes regarding interpretation the o r enforcement ofany term or provisionofthis Agreement to recoverany sumdue or p u r s u a nto this Agreement.EachPartyexpressly t waivesany right to seekor obtain p u n i t i v eor any form of exemplary damages from the otherParty. 9 . Intesration.EachPartyexpressly acknowledges agrees and that it hasnot a c t e dor reliedupon any inducement, promiseand/or representation, warranty,statement, a g r e e m e nnot expressly forth in this Agreement, that in any disputeor t set and controversy between them connected with the subjectmatterofthis Agreement, each P a r t yexpressly waivesany right to look beyondthe express language contained this in -33/7/2010 8:54:'25 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page11 of 14

Aqree.mglf $9h P.atf acknowledges and.agrees this Agreement negotiated that was voluffanty anoneely between andtneotherparty. lt 1 0 . MinimumFee.Because Weston The Firmhasat present several the in of Actions billeda largemajorityof thehours, notwithstanding formulafor allocation ihe of fees described above, Beckshallnonetheless receive min-imum thirdofthe fees at one awardeto.the d Parties anyaction for where preliminary a and/or final agreement of settleme n t signed thePfuties theresiective is by and defendant(s), aj-udgment or is entered, (eighteen wilhin 1.5years months) olthe date thefiling of thecomplainr. of In consid e ra ti o n theabove, for Beckagrees payWeston's oftf,e filing andsewice to half feesfor theActions,andto makeall reasonibl'e effortsto "catchuo" to Weston until it hasbilled at leastonethird ofthe hours.As partof this effort, on a'll the food product cases otherthanthe Unileveractions, Beckv"ill dothe first draft ofthe respeitivemotion to dismiss opposition briefs. This "Minimum Fee"shallalsoapplyto thebenefitof Weston, the eventof a in settlement orjudgment (eighteen within 1.5years months) thedateofthe filing ofthe of complainl andBeckhasbilied hoursthat wouldresultin Weston'sfeesbeinglessthana thirdaccording theallocation feesdescribed to of above. IN WITNESSWHEREOF, Parties the heretoherebyexecute Agreement, this such maybesigned counterpart! delivered e-maiior facsimile. in and via

DArED: ruw"n7.zoto

DATED: tutur"n 7

,ZO1O

TRIAL BEC K& LEE BUSINESS LAWYERS

El i z abet h Beck Lee

-43 / 7 1 2 0 18:54:25 0 PM

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page12 of 14

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page13 of 14

JOINT PROSECUTIONAGREEMENT ADDENDUM This JointProsecution ("Agreement") madeby andbetween law Agreement is the firms andlorattorneys of: . TheWeston Firm ("Weston"); and . Beck&Lee Business ("Beck"). Trial Lawyers Weston Beck arereferred collectivelyin this Agreement the "Parties"or and to as i n d i v i d u a l l y a "Party." as T h i sAgreement incorporates of thetermsof theprevious all 3l7ll0 agreement between t h eParties, amends certain and a Addendum agreement 5125110, of attached hereto, as follows: o The "contemplated antitrustactionagainst Adobe"is herebydeleted from the 5 l 2 5 l l 0 agreement, is hereby an action bejointly prosecuted the and not to by P a r t i e sResponsibilities theprosecution . for thereof, any,shallfall uponBeck if andnot Weston, who herebywithdraws from anyrepresentation the action. of This Agreement furtherincorporates of thetermsof the previous317lI0agreement all b e t w e e n Parties, the except follows: as " T h eActions"include actions all listedin the 3l7lI0 Agreement, includes and the actions listedin the 5l25ll0 Agreement. " T h e Actions"shallnow alsoinclude Redet al. v. Kraft Foods, Inc. et al. (case n o . 10-1028-G'Mt; Nothingin this Agreement altersany otherAgreement entered by the Parties into except a sexpressly noted herein. IN WITNESSWHEREOF, Parties the hereto herebyexecute Agreement, this suchmay be signedin counterparts delivered e-mailor facsimile. and via D A T E D :July i | ,2010

ti

THE

D A T E D :July_,2010

B E C K&LEE BUSINESS TRIAL LAWYERS

By
J a r e dH. Beck Elizabethlee Beck

Case5:10-cv-00387-JW Document73-2

Filed08/18/10 Page14 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page1 of 14

Exhibit C

Case5:10-cv-00387-JW Document73-3 Elizabeth Lee Beck
From: Sent: To: Subject: Attachments:

Filed08/18/10 Page2 of 14

Gregory S. Weston [[e-mail]] Thursday, August 12, 2010 11:37 PM [e-mail]; [e-mail] please see the attached letters Image0003.PDF

1

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page3 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page4 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page5 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page6 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page7 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page8 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page9 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page10 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page11 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page12 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page13 of 14

Case5:10-cv-00387-JW Document73-3

Filed08/18/10 Page14 of 14

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page1 of 16

Exhibit D

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page2 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page3 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page4 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page5 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page6 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page7 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page8 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page9 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page10 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page11 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page12 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page13 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page14 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page15 of 16

Case5:10-cv-00387-JW Document73-4

Filed08/18/10 Page16 of 16