In re Google Referrer Header Privacy Litigation

Filing 66

MOTION for Attorney Fees Expenses and Costs filed by Paloma Gaos. Motion Hearing set for 8/29/2014 09:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Responses due by 8/8/2014. Replies due by 8/22/2014. (Attachments: #1 Declaration Aschenbrener, #2 Declaration Nassiri, #3 Declaration Chorowsky, #4 Declaration Class Admin, #5 Declaration Dore, #6 Declaration Gaos, #7 Declaration Italiano, #8 Declaration Priyev, #9 Proposed Order for Final Approval and Fees, #10 Proposed Order Final Judgment)(Aschenbrener, Michael) (Filed on 7/25/2014)

Exhibit 2
Nassiri Declaration

KASSRA P. NASSIRI (215405)
1 ([e-mail])
NASSIRI & JUNG LLP
2 47 Kearny Street, Suite 700
San Francisco, California 94108
3 Telephone: [phone]
Facsimile: [phone]
4
MICHAEL J. ASCHENBRENER
5 ([e-mail]) (277114)
ASCHENBRENER LAW, P.C.
6 795 Folsom Street, First Floor
San Francisco, CA 94107
7 Telephone: [phone]
Facsimile: [phone]
8
9 ILAN CHOROWSKY (Admitted Pro Hac Vice)
([e-mail])
10 PROGRESSIVE LAW GROUP, LLC
1 N LaSalle Street, Suite 2255
60602
11 Chicago, IL(312) 787-2717
Telephone:
12 Facsimile: [phone]
13

Attorneys for Plaintiffs and the Putative Class

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN JOSE DIVISION

17
18

In re GOOGLE REFERRER HEADER PRIVACY
19 LITIGATION
20
21
22

_______________________________________
This Document Relates To: All Actions

23
24

CLASS ACTION
DECLARATION OF KASSRA P.
NASSIRI IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
FEES AND FINAL APPROVAL
OF CLASS ACTION
SETTLEMENT
Date:
Time:
Place:
Judge:

25
26
27

Case No. 5:10-cv-04809-EJD

August 29, 2014
9:00 a.m.
Courtroom 4, 5th Floor
Hon. Edward J. Davila

!

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NASSIRI DECLARATION
5:10-CV-04809

1 Pursuant to 28 U.S.C. § 1746, I, Kassra P. Nassiri, hereby declare and state as follows:
2

1.

I make this declaration of my own personal knowledge, except for those matters

3 stated on information and belief. If called to testify, I could and would do so competently about
4 the matters stated herein.
5

2.

I am an attorney admitted to practice in the State of California. I am a principal in

6 the firm Nassiri & Jung LLP and represent Plaintiffs as co-lead counsel in this matter.
7

3.

I am a 2001 graduate of Harvard Law School, and have been a licensed attorney

8 since that year. A more complete recitation of my experience and background, including my
9 extensive experience litigating consumer class actions on behalf of plaintiffs, appears in the law
10 firm résumé for Nassiri & Jung LLP, submitted herewith as Exhibit 2-1.
11 Class Counsel Worked Diligently to Achieve an Excellent Result for Plaintiffs in This Action.
12

4.

My firm worked diligently throughout this litigation, first to litigate aggressively

13 against Google and its experienced defense counsel, and then to reach a Settlement that provides
14 unprecedented relief to a class estimated to be more than 100 million individuals.
15

5.

On April 25, 2012, Plaintiffs served 67 Requests for Admission on Google. Google

16 responded and served objections to these Requests on June 13, 2013. We drafted several dozen
17 Requests for Production of Documents and additional Requests for Admission in 2013.
18

6.

On behalf of the plaintiff class, Michael Aschenbrener and I made several attempts

19 to settle this case. None of these efforts was successful in reaching any agreement whatsoever
20 until January 2013. We met with counsel for Google in person in January 2011, February 2011,
21 and June 2012. Post-meeting discussions continued throughout the summer of 2012.
22

7.

The difference in January was the participation of Randall Wulff as a mediator. In

23 my experience, Mr. Wulff has earned the respect of litigators on both sides of class action
24 disputes. He is professional, efficient, and well-qualified.
25

8.

Mediation before Mr. Wulff began on January 28, 2013, in Oakland, California.

26 The parties negotiated all day and late into the night. Late in the evening, Mr. Wulff conveyed a
27
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1

NASSIRI DECLARATION
5:10-CV-04809

1 Mediator’s Proposal that led to an acceptable settlement for the parties. The proposal Mr. Wulff
2 constructed became the framework for the Settlement Agreement before the Court today.
3

9.

Reaching an agreement on the details of that Agreement required Class Counsel,

4 including myself, to meet and confer with Google’s attorneys on dozens of occasions after the
5 mediation, and to exchange several drafts of the Agreement and related documents. It took nearly
6 two months of ongoing negotiations to complete the settlement, even after the difficult work of
7 constructing a framework for settlement was complete.
8

10.

The parties reached a final agreement and executed it on March 16, 2013.

9

11.

Throughout this case, the need for prospective relief to create informed consent for

10 Google users has been paramount. We would not have agreed to any settlement that did not
11 provide relief that allowed users to make informed choices about whether and how to use Google
12 Search. The Agreement before the Court provides such relief, and that relief is permanent.
13

12.

In my experience, the prospective relief and the cy pres distribution provided for by

14 the Settlement Agreement represent an excellent result for the plaintiff class. The process by
15 which the parties selected appropriate cy pres recipients and arranged for notice to the class are
16 aptly described in the preliminary approval briefing, the Motion for Final Approval and the
17 Aschenbrener Declaration filed herewith.
18

13.

Although I stand ready, willing and able, proceeding with this litigation would pose

19 very significant risks for the Plaintiff Class. Class actions of any size pose difficulties for
20 plaintiffs’ counsel; litigating against the largest internet search company in the world on behalf a
21 class likely consisting of more than 100,000,000 Google users would be challenging in the
22 extreme.
23

14.

The technological aspects of this litigation also pose substantial risks for Plaintiffs.

24 The law in the field of Internet user privacy remains in its infancy, and courts have had difficulty
25 in consistently applying old privacy laws to new and rapidly-changing technologies. And it can be
26 difficult to find jurors who can grasp technical concepts like Referrer Headers, HTML Protocols,
27 and Secure Hypertext Transfer Protocols. (Recognizing these difficulties, for example, the Gaos
28
2

NASSIRI DECLARATION
5:10-CV-04809

1 Complaint filed in this action featured a “Primer” on Referrer Headers and how they are used.)
2 The risk that a decision maker might misunderstand or misapply these concepts is substantial.
3 And the usual risks accompanying expert testimony—e.g., that Google would succeed in
4 excluding some or all of it—compounds these already significant dangers.
5

15.

Similarly, Class Counsel had to contend with the possibility that Google could raise

6 factual and legal defenses that would create issues of first impression in the Ninth Circuit. In
7 particular, no court in this Circuit has ever ruled on whether search terms embedded in a URL
8 disclose the “contents of a communication” as that phrase is used in the Stored Communications
9 Act. Similarly, no court in this Circuit has considered whether it might be a violation of a
10 defendant’s due process rights to impose the enormous statutory penalties available under the
11 Stored Communications Act (which in this case potentially could exceed Google’s ability to pay).
12 It is exceptionally difficult to measure likelihood of success in such a litigation climate.
13

16.

It was clear to me from the beginning that Google would vigorously oppose class

14 certification, if the parties were to litigate that issue. Defense counsel told me on numerous
15 occasions that Google was confident of its ability to defeat class certification, given the
16 manageability and other challenges associated with the size and composition of the class here.
17

17.

The Settlement Agreement provides for distribution of funds to cy pres recipients

18 because it would be impractical to distribute individual monetary awards to individual class
19 members, which itself poses additional risks to continued litigation.
20

18.

Plaintiffs have not negotiated, and do not intend to negotiate, a “clear sailing”

21 provision for any Plaintiffs’ attorneys’ fees and costs request.
22 The Attorneys’ Fees and Unreimbursed Costs Sought by Class Counsel Are Reasonable.
23

19.

My firm and I have regularly engaged in major complex litigation and have

24 extensive experience in consumer class action lawsuits that are similar in size, scope, and
25 complexity to the present case.
26

20.

Class Counsel seek $2,125,000.00 in fees and costs from the Settlement Fund.

27
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3

NASSIRI DECLARATION
5:10-CV-04809

1

21.

On July 25, 2014, lead counsel for the Nassiri, Aschenbrener, and Progressive Law

2 firms agreed in good faith to allocate attorneys’ fees from the total award, as follows: 39% to
3 Nassiri & Jung LLP; 39% to Aschenbrener Law, P.C.; and 22% to Progressive Law Group, LLC.
4 This division fairly reflects the relative contributions of each firm in achieving an excellent result
5 for the Plaintiff Class. A true and correct copy of that agreement is submitted for filing herewith
6 as Exhibit 2-2.
7

22.

Class Counsel as a group are submitting 2,085.6 lodestar hours.

8

23.

Class Counsel as a group are also submitting $21,643.16 in out-of-pocket litigation

9 expenses.
10

24.

My firm Nassiri & Jung LLP and its attorneys have forgone other opportunities,

11 including work on behalf of hourly paying clients, in order to effectively represent the Class.
12

25.

I am familiar with the skill and experience of all the timekeepers at Nassiri & Jung

13 LLP who worked for me on this matter. Their background and experience are also detailed in the
14 firm résumé submitted as Exhibit 2-1 hereto.
15

26.

As shown in the chart below (segregating time by attorney), as of July 25, 2014, the

16 total number of attorney hours spent on this case by my firm is 449.0, and the total lodestar
17 amount for attorney time on my firm’s current rates as of the same date is $ 253,776.50. My firm
18 advanced a total of $ 4,464.95 in reasonable, out-of-pocket litigation expenses. A true and correct
19 copy of expenses advanced by my firm is submitted as Exhibit 2-6 hereto.
20
21
22
23
24
25
26
27
28

Professional

Hours

Rate

Total

Kassra Nassiri

393.8

$590

$ 232,342.00

Kenneth M. Walczak

17.4

$590

$ 10,266.00

Jessica Kang

26.3

$370

$

9,731.00

Paralegals/ Legal Assistants

11.5

$125

$

1,437.50

Total Attorneys’ Fees

449.0

$ 253,776.50

Unreimbursed Expenses

$

TOTAL

$ 258,241.45
4

4,464.95

NASSIRI DECLARATION
5:10-CV-04809

1

27.

I have carefully reviewed the time entries summarized by this chart, and removed

2 any unnecessary or inefficient hours. I have not included any time for the timekeepers in my firm
3 who spent less than five (5) hours working on this case. The above chart includes no time spent
4 preparing Class Counsel’s petition for attorneys’ fees.
5

28.

I anticipate devoting further time and resources to this case as it moves through and

6 beyond the final approval process. I expect to do the following: (1) respond to any Class Member
7 inquiries that occur after the filing of this brief; (2) receive, review, and reply to any objections
8 raised to this Settlement; (3) prepare and appear for the final fairness hearing in this matter on
9 August 29, 2014; (4) respond to any concerns raised by the Court at and after the final fairness
10 hearing; (5) assuming the Court grants this Motion for fees and final approval of the Settlement,
11 take all subsequent steps necessary to implement this Settlement; and, (6) defend the Settlement
12 against any appeals.
13

29.

The rates reflected in the above chart are those at which Nassiri & Jung LLP

14 customarily bills time in 2014. They are entirely consistent with those charged by other attorneys
15 and legal professionals in the San Francisco area with comparable experience and expertise. My
16 firm’s lodestar cross-check is based on 2014 rates, to account for delay in payment since the work
17 was performed. See Missouri v. Jenkins, 491 U.S. 274, 284 (1989).
18

30.

Submitted herewith for filing as Exhibit 2-3 is a true and correct copy of an order

19 entered by the Superior Court of the State of California for the County of San Mateo on April 20,
20 2012, in the action Stevens, et al. v. Salesforce.com, Inc., No. CIV508644. The court in that action
21 awarded Nassiri & Jung our full 2012 rates, including $589 per hour for my work and $279 for
22 Ms. Kang’s work. (Mr. Walczak was not affiliated with the firm in 2012.)
23

31.

Submitted herewith for filing as Exhibit 2-4 is a true and correct copy of a

24 schedule derived from the Fulton County Daily Report’s annual “Going Rate” billing survey,
25 published online at http://data.dailyreportonline.com/GoingRate.asp. The Going Rate survey
26 shows rates for San Francisco Bay Area firms from 2006 through 2013, and shows that Nassiri &
27 Jung’s rates are well within the local market range.
28
5

NASSIRI DECLARATION
5:10-CV-04809

1

32.

The data taken from the National Law Journal’s annual law firm billing rates

2 survey, and submitted as Exhibit 1-2 to the Aschenbrener Declaration filed herewith also show
3 that my firm’s rates are well within the local market range, if not below the rates charged by major
4 law firms for attorneys with comparable authority and experience.
5

33.

My firm’s rates are also reasonable in light of the Adjusted Laffey Matrix Chart,

6 submitted as Exhibit 1-3 to the Aschenbrener declaration. Under the Adjusted Laffey Matrix,
7 $640.00 per hour is a reasonable hourly rate for attorneys with 11 to 19 years of experience. I
8 have been practicing law for nearly 14 years; Mr. Walczak has been out of law school for 11. We
9 each bill $590 per hour. Jessica Kang has 4 years of experience has an attorney; her rate of $370
10 per hour is $23 lower than the Adjusted Laffey Matrix rate.
11

34.

In the San Francisco market, time spent by paralegals and legal assistants is

12 compensable at market rates separately from attorneys’ services. My firm bills and is paid for
13 such services by our hourly paying clients. The rate charged for my firm’s paralegals and legal
14 assistants are consistent with rated billed by and paid to other firms in the San Francisco area.
15 Submitted herewith for filing as Exhibit 2-5 is a true and exact copy of the 2013 National
16 Utilization and Compensation Survey Report published by NALA, the Association of Legal
17 Assistants and Paralegals. The charts on page 3 of Exhibit 2-5 show that for the fourth quarter of
18 2012, paralegal billing rates topped $120 per hour across “Region 7,” which includes all of
19 California.
20

I declare under penalty of perjury under the laws of the United States of America that the

21

foregoing is true and correct.

22 !
23 Dated: July 25, 2014

NASSIRI & JUNG LLP

24
/s/ Kassra P. Nassiri
Kassra P. Nassiri

25
26
27
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NASSIRI DECLARATION
5:10-CV-04809

Exhibit 2-1
Nassiri & Jung Firm Resume

NASSIRI & JUNG LLP FIRM RESUME
NASSIRI & JUNG LLP concentrates in class action litigation, consumer litigation,
privacy and unfair competition litigation, wage and hour litigation, and other complex
business litigation. The firm’s attorneys studied at the top schools in the country, including
Harvard, Stanford, Duke, and U.C. Berkeley. Before joining Nassiri & Jung, the firm’s
lawyers practiced at some of the most renowned law firms in the country, including Kirkland
& Ellis, Wilson Sonsini Goodrich & Rosati, and Orrick, Herrington & Sutcliffe. Nassiri &
Jung’s lawyers have successfully litigated dozens of class action cases on behalf of both
plaintiffs and defendants in the areas of consumer, wage and hour, and securities law.
Some of our cases have included:
Settlement Recovery Center v. Valueclick, Inc., No. 07-cv-02641 (C.D. Cal.): Co-lead
counsel in class action alleging fraudulent commission payments related to internet
advertising.
Stevens v. salesforce.com, No. CIV-508644 (San Mateo County Sup. Ct.): Lead counsel in
wage and hour misclassification class action.
Gaos v. Google, Inc., No. 10-cv-04809 (N.D. Cal.): counsel in putative class action alleging
Internet privacy violations.
In Re: Facebook Privacy Litigation, No. 10-cv-02389-JW (N.D. Cal.): Co-lead counsel in
privacy class action.
Gonzales v. Lowe’s HIW, Inc., No. 72 160 01107 11 ANRO (AAA): Co-lead counsel in
putative wage and hour misclassification class action.
Radcliffe v. Lowe’s HIW, Inc., No. 72 160 00207 12 ANRO (AAA): Co-lead counsel in
putative wage and hour misclassification class action.
Clark v. Sprint Spectrum L.P., No. 10-cv-03625 (N.D. Cal.): counsel in putative class action
alleging material omissions and fraudulent practices related to cell phone insurance.
Morgenstein v. AT&T Mobility LLC, No. 09-cv-03173 (N.D. Cal.): counsel in putative class
action alleging unfair billing practices related to cell phone service.
Kemp v. 51job, Inc., No. 05-cv-00974 (S.D.N.Y): defense counsel in PSLRA class action.
Hanrahan v. Hewlett-Packard Co., No. 05-cv-02047 (N.D. Cal.): defense counsel in PSLRA
class action.
In re Intrabiotics Pharmaceuticals, Inc. Sec. Litig., No. 04-cv-03064 (N.D. Cal.): defense
counsel in PSLRA class action.
In re LeapFrog Enterprises, Inc. Sec. Litig., No. 03-cv-05481 (N.D. Cal.): defense counsel in
PSLRA class action.
In re Read-Rite Corp. Sec. Litig., No. 98-cv-20434 (N.D. Cal.): defense counsel in PSLRA
class action.
1

Guzman v. Gloria’s Bar & Grill, Inc., No. BC480807 (Los Angeles County Superior Court):
defense counsel in wage and hour class action alleging failure to pay overtime, wage
statement violations, meal and rest break violations, and waiting time penalties.
Enriquez v. Packet Fusion, Inc., No. CIV 502628 (San Mateo County Superior Court):
Plaintiff’s counsel in employee misclassification class action alleging failure to pay overtime,
wage statement violations, and waiting time penalties.
Veliz v. Gloria’s Cocina Mexicana, No. BC440209, (Los Angeles County Superior Court):
defense counsel in wage and hour class action alleging failure to pay overtime, wage
statement violations, meal and rest break violations, and waiting time penalties.
Del Rosario v. Centennial Heathcare, et al., No. BC469224 (Los Angeles County Superior
Court): defense counsel in wage and hour class action alleging failure to pay overtime and
minimum wage, wage statement violations, meal and rest break violations, and waiting time
penalties.
Navas v. Sunrise Plumbing & Mechanical, Inc., No. BC472140 (Los Angeles County
Superior Court): defense counsel in wage and hour class action alleging failure to pay
overtime.
Oregal v. Bay Contract Maintenance Corp., No. CIV-472076 (San Mateo County Superior
Court): defense counsel in class action alleging unpaid overtime wages.
Leon v. Fortress Security Corp., No. BC438935 (Los Angeles County Superior Court):
defense counsel in class action alleging failure to provide meal and rest breaks.
Ortiz v. Summer Systems, Inc., No. BC400075 (Los Angeles County Superior Court):
defense counsel in class action alleging unpaid overtime wages.
Cruz v. Marvel Maids, Inc., No. CGC-499197 (San Francisco County Superior Court):
defense counsel in putative class action alleging unpaid wages.
Cervantes v. Liu Cheng Inc., No. 08-cv-3817 (N.D. Cal.): defense counsel in putative FLSA
action alleging FLSA violations.
Osorio v. Divad Tran, No. 08-cv-4007 (N.D. Cal.): defense counsel in putative FLSA action
alleging FLSA violations.

ATTORNEYS
Kassra P. Nassiri
Kassra P. Nassiri is a trial lawyer who maintains a complex litigation practice focusing
on business and consumer matters. Mr. Nassiri has successfully represented clients in consumer,
employment and securities class actions, shareholder representative litigation, partnership
disputes and dissolutions, derivative litigation, complex contract disputes, and other corporate
litigation. He has settled and won cases both at the pleading stage and through jury verdicts in
California, Delaware and federal courts. Mr. Nassiri was selected for inclusion on the list of
Super Lawyers in 2012, 2013 and 2014 by Super Lawyers® magazine. He was also selected for
inclusion in the list of Rising Stars in 2011, 2010 and 2009 by the same publication.
2

Prior to co-founding Nassiri & Jung LLP, Mr. Nassiri was General Counsel of a multimillion dollar financial services company. Prior to that, Mr. Nassiri practiced litigation at
Wilson Sonsini Goodrich & Rosati, the leading securities class-action defense firm in the
country. While at Wilson Sonsini, he successfully defended Fortune 500 companies in
shareholder class action lawsuits, derivative lawsuits, and SEC investigations, including:
Hewlett-Packard: Defended company in securities fraud class action.
LeapFrog: Obtained dismissal of derivative complaint and securities fraud class action.
IntraBiotics: Obtained dismissal of securities fraud class action.
EMC/Legato Systems: Defended merger challenge.
Read-Rite: Obtained dismissal of securities fraud class action.
Mr. Nassiri earned his law degree from Harvard Law School. While in law school, Mr.
Nassiri taught economics courses at Harvard College. He earned his master’s degree in
economics from Stanford University, where he was awarded the Stanford Graduate
Fellowship. He earned his bachelor’s degree from the University of California, Berkeley, where
he was a member of Phi Beta Kappa. Mr. Nassiri also served as a Special District Attorney in
Marin County, where he tried cases through to favorable jury verdicts.
Charles H. Jung
Charles H. Jung is a trial lawyer who loves practicing law. His practice emphasizes
aggressive trial advocacy, wage and hour litigation, class action litigation, and employment
litigation. Mr. Jung was selected for inclusion on the list of Super Lawyers in 2011 by Super
Lawyers® magazine. He was also selected for inclusion on the list of Rising Stars in 2010 and
2009 by the same publication. Mr. Jung is the author of California Wage & Hour Law
(calwages.com) and California Class Action Law (classactionsblog.com).
Mr. Jung earned his law degree from Stanford Law School, graduating with distinction.
While at Stanford, he served as an Articles Editor for the Stanford Law Review. Mr. Jung
earned his master’s degree in public policy from the John F. Kennedy School of Government at
Harvard University. At Harvard, Mr. Jung was a Kennedy Fellow. He earned his bachelor's
degree, magna cum laude, from Duke University with a dual degree in economics and public
policy. Mr. Jung also served as a Special District Attorney in Marin County, where he tried
numerous cases through to jury verdicts.
Mr. Jung has successfully represented individual clients and major companies, including:
Discover Financial Services, Inc.: after filing a motion to dismiss, obtained voluntary
dismissal of representative action under Cal. Bus. & Prof. Code § 17200.
Morgan Stanley DW Inc.: defended company against its largest arbitration claims.
Clifford Chance: defended world’s largest law firm against claims involving breakup of
technology law firm Brobeck.
Recently Mr. Jung defended a services company against class action claims, resolving the
dispute for less than 3% of potential exposure; and he defended an employer against
3

discrimination claims, settling for less than 1% of original demand. He has litigated against law
firms such as Gibson Dunn, Paul Hastings, and Cooley Godward.
John J. Manier
John J. Manier is a trial and appellate lawyer, focusing primarily on employment law and
related litigation. He has appeared and argued before the D.C. Circuit, the California Supreme
Court and other state and federal courts and has been counsel of record in several groundbreaking cases, including the following:
Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925 (D.C. Cir. 2008) [EEOC policies
for disclosing confidential commercial information to third parties, without notice to the
employer, was arbitrary and capricious in violation of federal administrative law];
Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359 (D.C. Cir. 2005) [employer's
challenge to EEOC policies was ripe];
Reeves v. Hanlon, 33 Cal.4th 1140 (2004) [employer may sue competitor for tortious
interference with at-will employment contracts between employer and its employees];
Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 (1994) [establishing standards for
constructive wrongful discharge cases in California];
GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc., 83 Cal.App.4th
409 (2000) [corporate officer owed fiduciary duty of loyalty as a matter of law];
Saret-Cook v. Gilbert, Kelly, Crowley & Jennett, 74 Cal.App.4th 1211 (1999) [affirming
$650,000 attorney fee award for an employer who obtained a defense judgment in a sex
harassment and discrimination lawsuit];
Bardin v. Lockheed Aeronautical Systems Co., 70 Cal.App.4th 494 (1999) [company's
communications to Los Angeles Police Department during background check on former
company employee were absolutely privileged from tort liability];
Kirmse v. Nikko Hotel San Francisco, 51 Cal.App.4th 311 (1996) [affirming summary
judgment for employer on job bias and related claims, even though claims were not
barred by treaty between United States and Japan]; and
Eng v. County of Los Angeles, 737 F. Supp. 2d 1078 (C.D. Cal. 2010) [granting summary
judgment for the County and an individual defendant on a Deputy DA's claim for
retaliation in violation of the First Amendment and 42 U.S.C. § 1983].
Mr. Manier earned his law degree from UCLA School of Law (J.D. 1989), where he
served as an Editor of the UCLA Law Review and received the American Jurisprudence Awards
for Excellence in Property and Constitutional Law. Mr. Manier is a graduate of the University of
Notre Dame, where he earned his B.A. in 1986. Mr. Manier served as a Law Clerk to the late
Irving Hill, Senior United States District Judge, Central District of California.
Andrew R. Kislik
Andrew R. Kislik is an experienced litigator who trained at Gibson, Dunn & Crutcher,
and who was a principal of Cohen & Ostler in Palo Alto for 16 years. His practice focuses on
complex commercial litigation, wage & hour litigation, intellectual property litigation, and
4

employment law. Mr. Kislik has obtained numerous summary judgments, has successfully
arbitrated and litigated many cases, and has successfully represented both individual clients and
companies, including the following:
Rodeway Express: successfully settled an environmental contamination case for much
less than the cost of defense.
Wipro, Inc.: provided employment and litigation counsel in the United States.
Honda (USA): successfully settled a motorcycle products liability action for less than the
cost of defense.
Mr. Kislik earned his law degree from Harvard Law School, where he served as a Note
Editor of the Harvard Law Review and graduated with honors. Mr. Kislik earned his bachelor’s
degree in mathematics from Harvard College, where he was elected to Phi Beta Kappa and
graduated with honors.
Prior to entering into private practice, Mr. Kislik served as a judicial law clerk to United
States District Judge Donald D. Alsop in the District of Minnesota. Following his clerkship, Mr.
Kislik served as a special master in the redistricting of Minnesota. Mr. Kislik also has worked
for the labor and litigation departments of the California Judicial Council.
Kenneth M. Walczak
Kenneth M. Walczak is a trial and appellate lawyer who has litigated complex class
actions and constitutional cases. His practice focuses on class actions, consumer rights, appellate
litigation, and trade secrets/intellectual property.
Mr. Walczak has successfully litigated appeals, class actions and individual cases,
including the following:
In the Ninth Circuit Court of Appeals: authored brief of amicus curiae supporting
the Receiver appointed to overhaul medical care in state prison system; Court
cited brief in its ruling maintaining the Receivership.
In the California Supreme Court: worked on brief of amicus curiae, ethics
professors supporting the ability of private law firms to provide contingent-fee
services to city/county governments in massive lead paint abatement case. Court
cited brief during oral argument and upheld the legality of contingent-fee
arrangements.
Before the Federal Communications Commission: worked on brief of wireless
service provider opposing merger. Brief was cited by Department of Justice as
influential in DOJ’s decision to intervene and oppose merger.
In the Northern District of California (Sacramento): obtained class action
settlement ending state’s use of non-contact locations for parole proceedings,
which imposed physical barriers between parolees, their attorneys, and/or hearing
officers.

5

Mr. Walczak earned his law degree from Harvard Law School, where he was a Board
Member of the Harvard Legal Aid Bureau, and he served as an editor for the Civil Rights/Civil
Liberties Law Journal and a columnist for the Harvard Law School Record. Prior to entering
into private practice, Mr. Walczak served as a judicial law clerk to United States District Judge
Ann Aldrich in the Northern District of Ohio. He has also worked with the ACLU of Ohio and
the Boston Federal Public Defender.

6

Exhibit 2-2
Fee Allocation Agreement

AGREEMENT
This Agreement (“Agreement”) is made this 25th day of July 2014 (the “Effective Date”) by and
between Nassiri & Jung LLP, Aschenbrener Law, P.C., and Progressive Law Group, LLC (together, the
“Parties”).
WHEREAS, Kassra Nassiri of Nassiri & Jung LLP, Michael Aschenbrener of Aschenbrener Law,
P.C., and Ilan Chorowsky of Progressive Law Group, LLC, have been appointed Class Counsel in the
matter captioned In re Google Referrer Header Privacy Litig., 5:10-cv-4809-EJD (N.D. Cal.) (the
“Case”);
WHEREAS, Class Counsel have negotiated a proposed class action settlement in the Case that is
pending final approval by the Court (“Settlement”);
WHEREAS, Class Counsel have worked out how to apportion attorneys’ fees among themselves
and their law firms in the event the Court grants Final Approval of the Settlement and awards any amount
of attorneys’ fees to Class Counsel;
WHEREAS, the Parties intend to seek prorated recovery of expenses incurred by each law firm in
the Case, separate from attorneys’ fees;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein,
and other good and valuable consideration, and subject to Court approval, it is hereby agreed by and
between the Parties as follows:
1.

Fee Split.

Nassiri & Jung LLP will receive 39% of any attorneys’ fees that are ultimately awarded in this
Settlement;
Aschenbrener Law, P.C. will receive 39% of any attorneys’ fees that are ultimately awarded in
this Settlement;1
Progressive Law Group, LLC will receive 22% of any attorneys’ fees that are ultimately awarded
this Settlement.2
2.

Consideration.

In consideration of the Agreement, each Party waives the right to seek a greater percentage of
attorneys’ fees in this Settlement through the Court, mediation, or any other means. Furthermore, Nassiri
and Aschenbrener agree that their respective law firms will take the laboring oar in responding to any
objections to the Settlement and handling any potential appeals of the Settlement or any related court
orders.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
Any fees owed to Edelson, P.C. will be paid out of Aschenbrener Law, P.C.’s portion.
Aschenbrener Law, P.C. states that it has the agreement and authority of Edelson, P.C. to enter
into this Agreement.
2
Any fees owed to Diemer, Whitman & Cardosi, LLP will be paid out of Progressive Law
Group, LLC’s portion. Progressive Law Group, LLC states that it has the agreement and
authority of the Diemer firm to enter into this Agreement.
1!

3.

Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their
respective heirs, executors, administrators, legal representatives, successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any
person or entity other than the Parties and successors and assigns permitted hereunder any privity of
contract, right, remedy or claim under or by reason of this Agreement.
4.

Entire Agreement.

This Agreement sets forth and constitutes the entire agreement and understanding and all of the
representations and warranties of the Parties to the Agreement in respect of the subject matter of this
Agreement. This Agreement supersedes any and all prior agreements, negotiations, communications,
representations and warranties, whether oral or written (“Prior Communications”), of any Party to this
Agreement and no Party to the Agreement may rely or shall be deemed to have relied upon any such Prior
Communications.
5.

Modification.

This Agreement may only be modified, amended or supplemented by a writing executed by all of
the Parties.
6.

Waiver.

Any term, condition or provision of this Agreement may be waived only in writing by the Party
that is entitled to the benefits thereof.
7.

Rule of Construction and Authority.

The Agreement has been negotiated and drafted by all Class Counsel,. The Parties represent and
warrant that they have read and understand this Agreement. No rule of construction shall apply to this
Agreement construing its provisions in favor of or against any Party. Each of the signatories below
represents that he is fully authorized to enter into this Agreement on behalf of his respective law firm.
8.

Severability.

If a court finds any non-material part of this Agreement to be illegal or invalid, the illegal or
invalid portion of the Agreement shall be severed, the rest of the Agreement will be enforceable and the
Parties agree to negotiate in good faith and to replace the severed provision with a provision that closely
approximates the intent of the severed provision.
9.

Governing Law.

This Agreement shall be governed by the laws of the State of California, and shall be construed
and interpreted in accordance with its laws, notwithstanding its conflict of law principles or any other
rule, regulation or principle that would result in the application of any other state’s law.

2!

10.

Enforcement.

Class Counsel intend for the Court in the Case to retain jurisdiction to enforce this Agreement.
11.

No Confidentiali .

The Parties do not agree to any form of confidentiality relating to this Agreement. The Parties
hereby agree to inform the Court in which the Case is pending of this Agreement, including its terms.
12.

Counterparts.

This Agreement may be executed in any number of counterparts, and via Portable Document
Format (.PDF), and each such counterpart will constitute an original document, but all such separate
counterparts constitute only one and the same instrument.
13.

Headings.

The Paragraph headings contained in this Agreement are included for the purpose of convenience
only, and do not affect the construction or interpretation of any of the provisions of this Agreement.
14.

Distribution.

The Parties will request that the Court order the Defendant to directly distribute any allocation of
attorneys ' fees and expenses per the Settlement to each recovering law firm .
Dated: July 25, 2014

Nassiri & Ju)'lg LLP

By: Kassra Nassiri
Dated: July 25, 2014

Aschenbrener Law, P.C.

Dated: July 25 , 20 14

Progressive Law Group, LLC,
Chicago, Illinois

By: Ilan Chorowsky

3

10. Enforcement.
Class Counsel intend for the Court in the Case to retain jurisdiction to enforce this Agreement.
11. No Confidentiality.
The Parties do not agree to any form of confidentiality relating to this Agreement. The Parties
hereby agree to inform the Court in which the Case is pending of this Agreement, including its terms.
12. Counterparts.
This Agreement may be executed in any number of counterparts, and via Portable Document
Format (.PDF), and each such counterpart will constitute an original document, but all such separate
counterparts constitute only one and the same instrument.
13. Headings.
The Paragraph headings contained in this Agreement are included for the purpose of convenience
only, and do not affect the construction or interpretation of any of the provisions of this Agreement.
14. Distribution.
The Parties will request that the Court order the Defendant to directly distribute any allocation of
attorneys' fees and expenses per the Settlement to each recovering law firm.
Dated: July 25, 2014

Nassiri & Jung LLP

By: Kassra Nassiri
Dated: July 25, 2014

Aschenbrener Law, P.C.

By: Michael Aschenbrener
Dated: July 25, 2014

By: Ilan Chorowsky

Exhibit 2-3
Stevens v. Salesforce.com Order

Exhibit 2-4
Fulton County Daily Report billing
survey

Exhibit 2-5
NALA National Utilization and
Compensation Survey

2013 National Utilization
and
Compensation Survey Report

Section 3
Billing Rates

Based on Data Collected:
4th Quarter 2012

Copyright 2013
Reproduction of this report or portions thereof without express written permission is prohibited.

•

1516 S. Boston, #200

•

Tulsa, OK 74119 • 918- 587-6828 • www.nala.org

NALA
2013 National Utilization and Compensation Survey Report
Section 3 Billing Rates
Tables and Charts

2

Copyright 2013
Reproduction of this report or portions thereof without the express written
permission of NALA is strictly prohibited

NALA

1516 S. Boston, #200

Tulsa, OK 74119

918.587.6828

Section 3
Billing Rates

Page 1

Section 3.
Billing Rates

Table 3.1
Correlations to Billing Rates
of Factors Relating to Respondents Demographics
Factor

Correlation to
Billing Rates

Table 3.2
Billing Rate by Professional Activity
Activity

Copyright 2013, NALA

Rate

Responses

2013 National Utilization and Compensation Survey Report

Section 3
Billing Rates

Page 2

Table 3.3
Current Billing Rates
General Findings Years 2012-2004
Value

2012
Responses

2012
Percent

2010
Percent

2008
Percent

2004
Percent

Less than $30
$31 - 35
$36 - 40
$41 - 45
$46 - 50
$51 - 55
$56 - 60
$61 - 65
$66 - 70
$71 - 75
$76 - 80
$81 - 85
$86 - 90
Greater than $90
91-95
$96 - 100
$101 - 105
$106 - 110
$111 - 115
$116 - 120
$121 - 125
$126 - 130
$131 - 135
$136 - 140
$141 - 145
$146 - 150
$151 - 155
$156 - 160
$161 - 165
$166 - 170
$171 - 175
Copyright 2013, NALA

2013 National Utilization and Compensation Survey Report

Section 3
Billing Rates

Page 3

Value

2012
Responses

2012
Percent

2010
Percent

2008
Percent

2004
Percent

$176 - 180
$181 - 185
$186 - 190
$191 - 195
$196 - 200
$201 - 205
$206 - 210
$211 - 215
Table 3.4
Billing Rate by Region 2012-2002 Data
Region

2012 Rate

2010 Rate

2008 Rate

2004 Rate

2002 Rate

Region 1
Region 2
Region 3
Region 4
Region 5
Region 6
Region 7
Chart 3.1 (3.4)
Billing Rate by Region – 2012, 2010 and 2008 Compared

Copyright 2013, NALA

2013 National Utilization and Compensation Survey Report

Section 3
Billing Rates

Page 4

Table 3.5
Hourly Billing Rates by Size of Firm

Firm Size

2012
Average
Rate

2012
Responses

2010
Average
Rate

2012-2004

2010
Responses

2008
Average
Rate

2004
Average
Rate

Sole
2-5
Attorneys
6 - 10
11 - 15
16 - 20
21 - 30
31 - 35
36 - 40
41 - 45
46 - 50
51 - 55
56 - 60
61 - 65
66 - 70
71 - 75
76 - 80
81 - 85
86 - 90
91 - 95
96 - 100
More
than100

Copyright 2013, NALA

2013 National Utilization and Compensation Survey Report

Section 3
Billing Rates

Page 5

Table 3.6
Current Hourly Billing Rate by Total of Years of Experience
Years

Average Rate

Responses

Summary

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
29
30

Copyright 2013, NALA

2013 National Utilization and Compensation Survey Report

Section 3
Billing Rates

Page 6

31
32
33
34
35
36
37
38
39
40

Chart 3.2
Hourly Billing Rate by Years of Experience 2012 and 2010

Copyright 2013, NALA

2013 National Utilization and Compensation Survey Report

Section 3
Billing Rates

Page 7

Table 3.7
Hourly Billing Rate by
Years with Current Employer
Years

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

2012
Average
Rate

2012
Responses

2010
Average
Rate

2008
Average
Rate

2004
Average
Rate

2012
Summary

Section 3
Billing Rates

Page 8

Years

2012
Average
Rate

2012
Responses

2010
Average
Rate

2008
Average
Rate

2004
Average
Rate

2012
Summary

23
24
25
26
27
28
29
30
Table 3.8
Billing Rate by Type of Paralegal Program Completed
Paralegal Program

2012
Average
Rate

Undergraduate Certificate
Post Baccalaureate Certificate
Associate Degree
Bachelor’ Degree
Other
None
The Participants

2012
Responses

2010
Average
Rate

2008
Average
Rate

2004
Average
Rate

Section 3
Billing Rates

Page 9

Region

Number

Region 1 - New England/Mid East

Region 2 - Great Lakes

Region 3 - Plains States

Region 4 - Southeast

Region 5 – Southwest

Region 6 - Rocky Mountains

Region 7 - Far West

-End of Section 3 of 4-

Percentage

Exhibit 2-6
Nassiri & Jung Expense Report

7/20/2012
9/10/2012
1/23/2013
7/16/2013
8/26/2013

10/11/2011
1/13/2012
4/25/2012
5/2/2012
6/6/2012

11/19/2010
3/25/2011
5/4/2011

11/19/2010

10/28/2010

10/27/2010

Date

$136.64
$800.00
$1,687.50
$21.16
$296.45
$4,464.95

Total Expensess

$94.50
$143.50
$1.70
$29.50
$32.00

$78.00
$30.00
$50.00

$493.00

$78.00

$493.00

Dollar Amount

Gaos v. Google
Line By Line Expense Report
Description
Court Filing Fee: County Legal - Filing in USDC Northern - San
Jose; RUSH, incl. Initial Filing Fee.
Service Fee: Service Fee - County Legal Process Service to
Google, Inc.
Court Filing Fee: County Legal - Filing in SC Superior, incl. initial
filing fees.
Service Fee: Service Fee - County Legal Process Service to
Google, Inc.
Messenger Cost: County Legal - Serve Courtesy Copies.
Messenger Cost: Courtesy Copies delivered to USDC San Jose.
Messenger Cost: ADC Legal filing in USDC San Jose, court records
and file search, service/preparation.
Transcript: Transcript Cost from MTD hearing 10/28/2011.
Postage: Postage - service copies sent to opposing counsel.
Misc: Courtesy Copies.
Parking for settlement meeting.
One Hour Delivery cost, courtesy copy of Opposition to Motion to
Dismiss SAC to USDC.
Soghoian Invoice NJ-0001 for consulting.
Mediator fees for Randall W. Wulff; taxpayer ID 94-3381473.
Purchase googlesearchsettlement.com
Transcript of 8/23/2013 hearing.