Kardonick v. JP Morgan Chase & Co. et al

Filing 298

Plaintiff's MOTION for Attorney Fees and Reimbursement of Litigation Expenses by David Kardonick. Responses due by 8/15/2011 (Attachments: # 1 Exhibit Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Text of Proposed Order)(Ku, Brian)

EXHIBIT 3

UNTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

DAVID KAONICK, JOHN DAVI,
and MICHAEL CLEMINS, individually
and on behalf of all others similarly
situated,
Plaintiffs,
v.

JPMORGAN CHASE.& CO. and
CHASE BANK USA, N.A.

C. A. No.l~10-cv-23235-WMH

Defendants.

DECLARATION OF CONLEE wmTELEY IN SUPPORT OF JOINT APPLICATION
FOR ATTORNEYS' FEES AND REIMBURSEMENT OF EXPESNES FILED ON
BEHAF OF KANNER & WHITELEY, L.L.C.
I, Conlee Whiteley, declare as follows:
1. I am a member of the law firm Kaner & Whteley, L.L.c. I submit ths

declaration in support of my finn's application for an award of attorneys' fees in connection with

servces rendered in this case, as well as the reimbursement of expenses incurred by my finn in
connection with this litìgation.

among others, during the litigation:

2. My firm performed thefollowing tasks,

investigated the facts underlying the litigation, wrote, reviewed andior revised the complaints,
revieWed subsequent pleadings and fiings and paricipated in settlement discussions.
3. The schedule attached hereto as Exhibit A is à detailed sumary indicatíng the

amount of time spent by each attorney and paralegal of my firm who WàS involved in this

litigation, and the lodestar calculatÌon based on my finn's curent biling rates. For attorneys and
(Cases; 00007435.DOC)

1

paralegals who are no longer employed by my firm, the lodestar calculation is based upon the
biling rates for such attorneys and paralegals in his or her final year of employment by my finn.
The schedule was prepared from contemporaneous time records regularly prepared and

maitained by my firm, which are available at the request of the Cour. Time expended in
preparing this application for fees and reimbursement of expenses has not been included in this
request.
4. The hourly rates for the attorneys and paralegals in my firm included in Exhibit A

are the same as the regular current rates charged for non-contingent matters and/or which have

been accepted in other litigation.
5. The total number of hours expended on this litigation by my firm is 80.2 hours.

The total

lodestar for my finn is $29,725.00. See ExhibitA.

6. My finn's lodestar figures are based upon the firm's billng rates, which rates do
not include charges for expense items. Expense items are biled separately and such charges are
not duplicated in my firms' billng rates.

7. As detailed in Exhbit B, my firm has incurred a total of $1,903.19 II
unreimbursed expenses in connection with the prosecution of this litigation.
8. The expenses incured in ths action are reflected in the books and records of my
finn. These books and records are prepared from expense vouchers, check records and other

source materials and are an acculate record of the expenses incun'ed.
9. With respect to the standing of my firm, attached hereto as Exhibit C is a brief

biography of l11Y finn and attorneys in my firm who were piincipally involved in this litigation.

óJ=

Dated: July 1L 2011
¡Cases; 00007435.Doq

CONLEE wi
2

EXHIBIT A

Lodestar Summary
Kanner & Whiteley, L.L.C.
Timekeeper

Hours

Rate

Conlee Whiteley (P)
Ryan Casey (A)
Annemieke Tennis (PL)
Thomas Walker (PL)

8.60
39.40
30.30
0.40
1.50

625.00
400.00
275.00
175.00
125.00

TOTAL

80.20

Allan Kanner (P)

Timekeeper Status

(P) = Partner
(A) = Attorney
(LC) = Law Clerk
(PL) = Paralegal

Lodestar
$5,375.00
$15,760.00
$8,332.50
$70.00
$187.50

$29,725.00

EXHIBIT B

KANNER & WHITELEY, LLC
EXPENSE SUMMARY

Expense
Class Notice/Press Release
Mediation
DepositionlT ranscri pts
Filing Fee/court Fees
ExpertConsu It/I nvestigation
Process Server

Travel/Food/Misc.
Telephone/Facsimile
In-house photocopying/printing
Postage/Overnight/Cou rier
Legal Research
TOTAL

Total
$0.00
$0.00
$0.00
$0.00
$0.00
$220.50
$1,163.31
$0.97
$0.00
$0.00
$518.41
$1,903.19

EXHIBIT C

KANNER & WHITELEY, L.L.C.
701 Camp Street
New Orleans, Louisiana 70130
[phone]
FAX: [phone]

FIR BIOGRAPHY
Kanner & Whiteley,L.L.C. ("K&W") is an

AV-rated national trial firm founded

in 1981 that

excels in handling complex and novel matters. The finn has been especially successful in
commercial fraud, environmental and toxic tort litigation, first part insurance, long term care
insurance fraud, and in pioneering new legal theories in areas as diverse as environmental

law , toxic

torts, genetically engineered crops, the due process rights of farm borrowers, and the propert rights
of workers in their jobs. K& W has a diversified practice, successfully representing plaintiffs (and
sometimes defendants) in the fields of mass torts, consumer protection, products defect, antitrst,
environmental and toxic torts. Our clients include individuals, classes, businesses, as well as public
and private entities.

COMPLEX LITIGATION AND CLASS ACTIONS
K&W has served as court..appointed Plaintiffs' Lead or Class Counsel in state and federal
coordinated, multi-district, and complex litigation throughout the United States. With co-counsel,
we have represented clients in hundreds of class and group actions, including some of the most
important civil cases in the United States over the last thirty years.
K& W enjoys a national reputation for professional integrity and the successful prosecution
of our clients' claims. We possess sophisticated legal skills and the financial resources necessary

for the handling oflarge, coinplex cases, and for litigating against some of the nation's largest
corporations. We take great pride in the leadership roles our firm plays in many of

this country's

major cases, including those resulting in landmark decisions al1d precedent-setting nùings.
K& W has an excellent trial and appellate reputation. We have substantial jury trial
experience with a number of
multi-mill
ion-dollar verdicts, including three successful class action
trials. We have successfully litigated civil RICO, environmental, toxic tort, antitrust, fiduciary duty,
commercial and other individual and class cases.

The firm is currel1tly lead or co-lead in multiple Multi-District Litigation (MDL) matters,
Mexico, on April 20,
2010, MDL No. 2179 (E.D. La.) (representing the State of
Louisiana to recover foriiatural reSOllce
damages following Deepwater Horizon Oil Spill); In re..Avandia Marketing, Sales Practices, and
including: In re: Oil Spil by the Oil Rig "Deepwater Horizon" in the Gulf of

Products Liability Litigation, MDL No. 1871 (E.D. Pa.) (representing the State of

Louisiana); In re:

Budeprion XL Sales and Marketing Litigation, MDL No. 2107 (E.D. Pa.) (Lead counsel in a
COl1sumer fraud case); In re: Cox Enterprises, Inc. &t- Top Cable Television BoxAntitrustLitigation,
MDL No. 2048 (W.E. Okla.) (Co-Lead counsel in an antitrust case).

TRIAL AND APPELLATE EXPERIENCE
K&W has an excellent trial and appellate reputation. We have substantial jury trial
experience with a number of
multi-mill
ion-dollar verdicts, including three successful class action
trials. We have successfully litigated civil RICO, environmental, toxic tort, antitrust, fiduciary duty,
commercial and other individual and class cases. The firm represents the State of
New Jersey in
several of its largest Natual Resource Damage recovery actions, and has also been retained to
successfully defend various class actions.
The firm has served as lead counsel in a number of recent cases, including Press, et aL., v.

Louisiana Citzens Fa;r Plan Property Insurance Corporation, No. 06-5530 (Civil District Court,

Orleans Parish, LA) ($23 million class action settlement on behalf of insureds in Louisiana
property
damage claims following Hurricanes Katrina and Rita) (final approval granted on Nov. 18,2010);

concerning the failure to properly pay general contractor's overhead andprofit as part of

Shaffer v. Continental Casualty, et aI, No. CV06-2335 (c.n. Cal 1/26/07) (Klausner,

J.)(Certification of class of Long Term Care policyholders), (Gutierrez, J.)(Denial of Motion for
Summar Judgment (4/12/07), (Gutierrez, J.(Final approval ofiniilti~million dollar national class

action settlement granted on 6/11/08); Lemmings v. Second Chance Body Armor, et al., No. CJ~
2004-64 (Mayes County District Court, OK) (2/19/05)(Goodpaster, J.)(certifying national class of
purchasers and users of defective bullet proof vests), (9/05) (Order finally approving $29 million
national class settlement); Milkman v. American Travellers Ltfe Insurance Co., No. 3775, (Ct.

Common Pleas, First Judicial District, June Term 2000) (4/01/02) (Multi-milion dollar national
Long Term Care and Home Health Care policyholders; final approval
class settlement on behalf of
granted

Rubber

4/01/02); Talalaiv. Cooper Tire &

Co., MID-L-8839-00MT, Mass Tort

259, (Law

Div. Middlesex Cty.) (Multi-million dollar national class settlement on behalf of Cooper Tire
purchasers; final approval granted on 9/13/02); Hanson v. Acceleration Life

Ins. Co., Civ. No. 3:97-

Long Tenn Care policyholders); Wallace
v. American Agrisurance, No. LR-C-99-669 (E.D.AR) (multi-million dollar settlement on behalf of
152 (D .N.D. 1999) ($14.7 million settlement on behalf of

rice growers holding CRC Plus policies); Thomas v. Schwab, No. 66,700 (lOth Jud. Dist. Ct.,
Natchitoches, La) af'd, 683 SO.2d 734 (La. App. 3rd Cif. 1996) (Certification of national class
action); Dumont v. Charles Schwab & Co. Inc., Civ. Act. No. 99-2840 clw 99-2841 (settlement of
certified
national class of
Schwab customers July 21,2000,2000 WL 1023231); Petrovic v. Amoco
Oil Co., 200 F.3d 1140 (8th Cif. 1

999)(settlement of certified pollution propert class action

affrmed on appeal); Tompkins v. BASF, No. 96-59 (Traill County, N.D.) (Multi-million
dollar
settlement on behalfof agricultural productpiichasers); Clarkv. Household Finance Corp., No. 972-22420 (King County, WA, 12/29/97) (certification
and
settement
of
statewide class for defrauded

employees ).

We have served as lead counsel in Waxler v. Trinity MarineProducts, Inc. et aI, No. 49-741,
Plaquemines, Louisiana (Eighteen
millon dollaf class action
settlement against barge manufacturer fordefectîve interior coatîng of
barges; final approval granted

25th Judicial District Court, Parish of

on 11/29/07); In re c')~vl1hroid Marketing Litgation, MDL 1182,264 FJd 712 (7th Cif. 2001) ($89

millon nationwide class action settlement granted final approval and affl1ned on appeal);
Jorgenson, et al. v. Agivay, Inc., Civ. No. A3-00-59 (D.N.D. 2002) ($3.2 millon settleiiient on
behalf of sunflower growers); and Bonila v. Trebol Motors, No. 92-1795 (D.P.R.) ($129.5 million
class action verdict affirmed in part and
reversed in parton appeal; settled as to all parties).

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Courts have consistently acknowledged the firm's expertise in complex and class action
litigation:
Hanson v. Acceleration Life Ins. Co., Civ. No. A3:97-l52 (D.N.D.
Mar. 18, 1999) (certifying class of
Long Term Care policyholders,
rejecting filed rate doctrine and denying summary judgment): Order
December 11,1999 (approving final settlement of$14.7 milion),
of
pp.8-9: ("This litigation was hard fought throughout its two year
pendency and required thousands of hours of counsel's time and
hundreds of thousands of dollars advanced for expenses, with
significant risk of
no compensation. Both local counsel and national
class counsel are commended for their willngness to take on this

cause when there were virtually no precedents to assure them of
likely success. They are all highly skiled and well-experienced

attorneys who appreciate the risky nature of this litigation, yet their
desire to correct a perceived injustice suffered by a vulnerable group
of people led them to take this risk. Counsel '.' considerable skil,
both in the

substantive areas of

this case as well as in discovery and

class action procedure, together with their degrees alpreparation
class.
equal note is the fact that counsel unquestionably put the interests
of the class far ahead of their own interest.") (emphasis. added).

were primary jàctors leading to the favorable settlementfor the
Of

Talalai v. Cooper Tire & Rubber Co., MID-L-8839-00MT, Mass Tort
249, (Law Div. Middlesex Cty.) (1111/01 Opinion and Order

Certifying National Class and Preliminarily Approving Settlement)
("The attorneys of

Kanner & Whiteley, L.L.C. have substantial jur

trial experience with a number of multi-million~dollar verdicts,

including a number of successful class action trials. The firm is
known for its willingness to try class actions to verdicts and has done

so on at least three occasions, winning every time"); Opinion of
September 13, 2002 (Approving Certification and Final Settlement
National Class), p.5: ("The Stipulation was the result of extensive
and intensive arm's length negotiations among highly experienced
counsel, with the benefit of extensive discovery and full knowledge
of
the risks inherent in this litigation.").
of

Milkman v. American Travellers LUè Insurance Co., No. 3775, (Ct.

Cm. Pleas, First Judicial District, June Term 2000) (Preliminary

Approval of Natìonal Class: 11126/01) ("As demonstrated by the
credentìals set forth in the Motion, the Plaintiff s attorneys are inore
than capable of representing the interests of the Class and there do
not appear to be any conflicts of interest between the Plaintiff and the
Class."). (Final Approval of

National Class: 4/1102), p. 47 ("Agail1,

the quality of the legal representation provided by Class Counsel is

exceptionaL. The extensive experience of each of the firms and
individual attoineys serving the Class is set forth in Kanner Affdavit
Paragraphs 54 through 68. Moreover, the Court can attest to Class
Counsel's professionalism and skill, as demonstrated by the extensive
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memoranda of law and the first-class oral arguments delivered on
behalf of

the Class.").

Bonila, et af. v. Trebol Motors Corporation, et af., No. 92-1795 (LP)
1 29,000,000jury
verdict in
civil RICO class action against
(D.P.R.) ($
Volvo and local distributor) (describing the firm's abilities on March

27, 1997, as follows: "We have no trouble concluding that the
experience and resources ojAllan Kanner & Associates was a major
reason that the plaintiffs' class was able to so successfully present its
case to the jury and achieve such an estimable result. Mr. Kanner,
who served as lead counsel at trial, has perhaps as much experience
litigating complex class action suits as any attorney in the United
States. He has authored, chaired, consulted on, contributed to, and

given articles, symposiums, classes, books, practice guides, etc.
More importantly, his resmne is replete with instances in which he
served as counsel in complex class action suits. His experience was
essential to the success realized by the plaintiffs in this action.")
(emphasis added).
Glass, Molders, Pottery Plastics, and Alled Workers International
Union, et af. v. Wickes Companies, Inc., No. L-06023-88 (Sup.Ct.,

Camden Cty., February 24, 1992) (certifying national class of
workers who lost jobs as a result of tortious conduct occurring in the
context of hostile corporate raid) (describing the firm's abilities to
represent the class as follows: "Plaintiffs' attorneys have extensive

professional experience representing plaintiffs in class actions.
Additionally, the attorneys representing the plaintiffs are equipped
with the staff and resources to adequately handle a technical and

complex class action. In short, I am satisfied that plaintif'
attorneys are committed to the class and competent to advocate its
interest. 'j; (emphasis added) Order Approving Counsel Fees of
December 16, 1993 ("This Court finds that the Kanner firm, (and co-

counsel) have all provided outstanding service to the class and
faithfully executed their fiduciary duties in connection with this
litigation.") (emphasis added).
7-515, Oil Chemical and Atomic Workers International Union
(OCA WIlJ), et al v. American Home Products, et af., Civ. No. 92-

Local

13, 1992, certifying national class

1238 (JP) (D.P.R.) (Order of April

of workers who lost jobs as a result of fraudulent job transfers to
Puèrto Rico under civil RlCO theory), Oil Chemical and Atoniic
Workers International Union v. American Home Products, et cif.,

Civil No. 91-1093 canso!. with Civil No. 92-1238 (Order of
September 17, 1992, approving $24 million settlement); p.38 of
transcript: "Indeed, the Court affrmatively finds that Mr. Kanner
and (co-counsel) have in all matters handled this case and conducted
themselves, in relation to their co-counsel, with the highest degree of
projèssionalism, integrity and abilty. There is no doubt in the
Court's mind, based on his intimate familiarity with the record, that
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but for the outstanding efJòrts of Mr. Kanner and reo-counsel) there

would not have been such a signtfìcant and landmark result in this
case, and I have been telling you all this long before this moment."
(emphasis added).

The Board of Commissioners of the New Orleans Exhibiton Hall
Authority v. Missouri Pactfic Railroad Company, et aI., No. 92-4155
February 15, 1996) "It must be said that both firms and
(Judgment of
all attorneys involved in this protracted litigation exemplified the
highest standard of trial experience and skil which was brought to

bear on this novel and difìcult matter in a specialized area of the
law." (emphasis added).
As a result, Allan Kanner is regularly asked to lecture and write on presenting the plaintiff s

case for triaL. The firm is especially well known for its ability to communicate novel theories
effectively. See, Business Week (June 18, 1990); American Bar Association Journal articles in July
1989 and July 1990 issues.

ATTORNEYS INVOLVED IN KARDONICK v. JP MORGAN CHASE & CO. ET. AL.
ALLAN KANNER (B.A., University ofPemisylvania; J.D., Harvard Law School) is the
founder and senior member at Kaner & Whiteley. Mr. Kanner has a wealth of experience litigating
complex class action lawsuits, and practices in the areas of environment, toxic tort, commercial

litigation, and consumer fraud. Mr. Kanner has been recognized by Chambers USA (2009 & 2010),
"Allan Kanner of
Kanner & Whiteley enjoys a 'sterling reputation' for plaintiff-side representation
in toxic tort trials." Mr. Kanner has also been named as a Louisiana Super Lawyer since 2007. He
also has an excellent reputation as a trial lawyer. In 1996, he was recognized for winning one of the

year's largest verdicts, a $129,500,000 judgment in a civil RICO class action. His scholarly
accomplishments are also noteworthy. Mr. Kanner also serves the legal profession as an Adjunct
California,

Professor at Tulane Law School (1990-2008), a Visiting Lecturer in Law at University of

Berkeley (Spring 2004), at Yale Law School (Fall 2002), Visiting Senior Lecturer at Duke
Texas Law School
(Spring 2001). Mr. Kanner is a frequent lecturer and speaker on a variety oftopics, and is the author
of ENVIRONMENTAL AND TOXIC TORT TRIALS (Lexis- Nexis) (2d. ed.), as well as over sixty
articles in the diverse fields or torts, trial practice, civil discovery, civil RICO, environmental
law,
toxic t011s, class actions, and business and consumer fraud. During 1998 and 1999, Mr. Kanner was

University (Fa112000) (Spring 2004), and Visiting Professor at the University of

one of the principal aüthors of the LOUISIANA JUDGES' COMPLEX LITIGATION BENCH
BOOK, and he has also been an instructor at the Louisiana Judicial College. After graduating from
Harvard Law School, he clerked for the late Judge Robert S. Vance of
the U.S. Court of Appeals,
Fifth Circuit. He is a member ofthe bars of
California, District of
Columbia, Louisiana, New Jersey,
Oklahoma, New York, Pennsylvania, and
Puerto Rico (Federal), and
has successfully handled
novel
and complex matters throughout the United States.
Mr. Kanner is the past President of

the Louisiana Association of Justice CLAJ") (2008-2009)

and is on the American Association of Justice Board of Governors. In the wake of Hurricanes
Katrina and Rita, he founded and headed the LAJ insurance section to encourage cooperation and
information sharing between attorneys representing insureds against their carriers. He has authored
numerous articles related to insurance and was recently invited to lecture before the Iowa Trial
5

Lawyers Association and Texas Trial Lawyers Association on insurance coverage following natural
disasters affecting those states. He has also testified on insurance issues before the u.s. Senate and

Louisiana Legislature.

CONLEE S. WHITELEY (B.A., Louisiana State University; J.D., Paul M. Hebert Law
Center at Louisiana State University) is the managing member at Kanner & Whiteley. Ms. Whiteley
joined the firm in 1994 and practices primarily in the areas of
consumer fraud, insurance litigation,

commercial litigation, agricultural litigation, RICO, and general class action litigation in New
Orleans and throughout the country. Ms. Whiteley is licensed to practice law before Louisiana State

Cours, the United States District Courts for the Eastern and Western Districts of Louisiana, the
United States District Court for

the District of

Nort Dakota, and

the United States Court of Appeals

for the First, Fifth and Ninth Circuits. She has also been admitted to practice Pro Hac Vice in
numerous courts throughout the countr. Ms. Whiteley has been appointed as class counsel in a
number of national class actions in which Kanner & Whiteley served as lead counsel and has been
involved in all aspects of
litigation of
these matters. Ms. Whiteley
received an "A
V" rating in 2003
by Martindale Hubbell Law Directory, its highest rating.

William and Mary; J.D., University
of Oregon School of Law, Pro Bono Certificate and Certificate of Environmental Law) joined
Kanner & Whiteley as an associate in 2006. Mr. Casey practices in the fields of insurance litigation,
MICHAEL "RYAN" CASEY (B.A., The College of

complex litigation and class actions, including Consumer fraud, commercial litigation and
environmental law. While at Kanner & Whiteley, he has served on the Eastern District of
Louisiana's (Section F) Plaintiffs' Liaison Committee for Katrina-related insurance litigation, and
has been an active member of the Louisiana Association for Justice's Section on Insurance
Litigation. He is admitted to practice before the United States District Courts for the Eastern and
Western District of Louisiana and Eastern District of Virginia, as well as before Louisiana and
Virginia State Courts. He has also been admitted to practice Pro Hac Vice in the United States
District Court for the District of

Puerto Rico.

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