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THE WESTON FIRM
GREGORY S. WESTON (239944)
greg@westonfirm.com
JACK FITZGERALD (257370)
jack@westonfirm.com
MELANIE PERSINGER (275423)
mel@westonfirm.com
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: (619) 798-2006
Facsimile: (480) 247-4553
Class Counsel
LAW OFFICES OF RONALD A.
MARRON, APLC
RONALD A. MARRON (175650)
ron@consumersadvocates.com
SKYE RESENDES (278511)
skye@consumersadvocates.com
ALEXIS M. WOOD (270200)
alexis@consumersadvocates.com
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
In re Qunol CoQ10 Liquid Labeling
Litigation
Case No. 8:11-cv-00173 DOC (Ex)
Class Action
PLAINTIFF’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR
APPROVAL OF ATTORNEYS’
FEES, COSTS, AND INCENTIVE
AWARD
Judge: The Hon. David O. Carter
Date: February 25, 2013
Time: 8:30 a.m.
Location: Courtroom 9D
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TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY OF ARGUMENT ................................... 1
II. ARGUMENT ........................................................................................................... 1
A. BASES FOR AN AWARD OF ATTORNEYS’ FEES AND
EXPENSES .............................................................................................................. 1
B. CALIFORNIA LAW PROVIDES FEES FOR SUCCESSFULLY
PROSECUTING CONSUMER FRAUD CLAIMS ............................................ 1
1. Plaintiff is a “Prevailing Plaintiff,” Entitled to Fees and
Costs under the CLRA ...................................................................... 2
2. Plaintiff is a “Successful Party” Entitled to Fees & Costs
Under the Private Attorney General Statute .................................. 4
3. The Settlement Agreement Provides for Attorneys’ Fees,
Costs and an Incentive Award .......................................................... 5
C. THE COURT SHOULD APPLY THE LODESTAR METHOD TO
DETERMINE CLASS COUNSEL’S REASONABLE FEE .............................. 7
D. CLASS COUNSEL’S LODESTAR IS FAIR AND REASONABLE ................ 7
1. Class Counsel’s Rates Are Reasonable ............................................ 7
2. Class Counsel’s Hours Expended Are Reasonable ....................... 10
E. CLASS COUNSEL’S REQUESTED FEE IS REASONABLE ....................... 11
1. The Results Achieved for the Class ................................................ 12
a. A Fair Settlement With Benefits for the Class ...................... 12
b. The Effort, Skill, and Experience of Counsel ....................... 13
c. The Complexity of the Issues ................................................. 14
d. Risk of Non-Payment, Preclusion of Other
Employment, and Ongoing Work .......................................... 14
e. Reaction of the Class .............................................................. 15
F. THE REQUESTED COSTS ARE FAIR AND REASONABLE ..................... 15
G. THE REQUESTED INCENTIVE AWARD IS FAIR AND
REASONABLE ..................................................................................................... 16
III. CONCLUSION ..................................................................................................... 18
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TABLE OF AUTHORITIES
CASES
Barcia v. Contain-A-Way, Inc.,
2009 U.S. Dist. LEXIS 17118 (S.D. Cal. Mar. 6, 2009) ........................................ 17
B-K Lighting, Inc. v. Vision3 Lighting,
2009 U.S. Dist. LEXIS 111968 (C.D. Cal. Nov. 16, 2009) ................................... 10
Blum v. Stenson,
465 U.S. 886 (1984).............................................................................................. 7, 8
Brazil v. Dell Inc.,
2012 U.S. Dist. LEXIS 47986 (N.D. Cal. Apr. 4, 2012) .................................... 6, 12
Broughton v. Cigna Healthplans,
21 Cal. 4th 1066 (1999) ............................................................................................ 2
Camancho v. Bridgeport Fin., Inc.,
523 F.3d 973 (9th Cir. 2008) .................................................................................... 7
Champion Produce, Inc. v. Ruby Robinson Co.,
342 F.3d 1016 (9th Cir. 2003) .................................................................................. 1
Collado v. Toyota Motor Sales, U.S.A., Inc.,
2011 U.S. Dist. LEXIS 133572 (C.D. Cal. Oct. 17, 2011) ...................................... 8
Cook v. Niedert,
142 F.3d 1004 (7th Cir. 1998) ................................................................................ 17
Cunningham v. County of Los Angeles,
879 F. 2d 481 (9th Cir. 1988) ................................................................................. 12
Dunk v. Ford Motor Co.,
48 Cal. App. 4th 1794 (1996) ................................................................................. 11
Engalla v. Permanente Medical Group, Inc.,
15 Cal. 4th 951 (1971) .............................................................................................. 5
Farmers Ins. Exch. v. Sayas,
250 F.3d 1234 (9th Cir. 2001) .............................................................................. 1, 5
Flannery v. Cal. Highway Patrol,
61 Cal. App. 4th 629 (1998) ..................................................................................... 4
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Frankel v. Bd. of Dental Exam’rs,
46 Cal. App. 4th 534 (1996) ..................................................................................... 5
Gallucci v. Boiron, Inc.,
2012 U.S. Dist. LEXIS 157039 (S.D. Cal. Oct. 31, 2012) ....................................... 9
Gee v. Tenneco, Inc.,
615 F.2d 857 (9th Cir. 1980) .................................................................................... 1
Graciano v. Robinson Ford Sales, Inc.,
144 Cal. App. 4th 140 (2006) ................................................................................... 2
Grant v. Martinez,
973 F.2d 96 (2d Cir. 1992) ..................................................................................... 10
Greene v. Dillingham Constr. NA., Inc.,
101 Cal. App. 4th 418 (2002) ................................................................................. 14
Harris v. Marhoefer,
24 F.3d 16 (9th Cir. 1994) ...................................................................................... 12
Hensley v. Eckerhart,
461 U.S. 424 (1983).............................................................................................. 5, 7
Heston v. Taser Int’l., Inc.,
431 Fed. Appx. 586 (9th Cir. 2011) ......................................................................... 4
In re Apple Computer, Inc. Derivative Litig.,
2008 U.S. Dist. LEXIS 108195 (N.D. Cal. Nov. 5, 2008) ....................................... 5
In re Bluetooth Headset Prods. Liab. Litig.,
654 F.3d 935 (9th Cir. 2011) .......................................................................... 3, 7, 12
In re Equity Funding Corp. Sec. Litig.,
438 F. Supp. 1303 (C.D. Cal. 1977) ....................................................................... 11
In re Ferrero Litig.,
2012 U.S. Dist. LEXIS 94900 (S.D. Cal. July 9, 2012) ..................................... 9, 12
In re Omnivision Techs., Inc.,
559 F. Supp. 2d 1036 (N.D. Cal. 2007) .................................................................. 15
In re Rite Aid Corp. Sec. Litig.,
396 F.3d 294 (3d Cir. 2005) ................................................................................... 11
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In re Warfarin Sodium Antitrust Litig.,
212 F.R.D. 231 (D. Del. 2002) ............................................................................... 13
Ingram v. Coca-Cola Co.,
200 F.R.D. 685 (N.D. Ga. 2001) .............................................................................. 6
Ingram v. Oroudjian,
647 F.3d 925 (9th Cir. 2011) .................................................................................... 8
Ketchum v. Moses,
24 Cal. 4th 1122 (2001) ................................................................................7, 14, 15
Kim v. Euromotors West/The Auto Gallery,
149 Cal. App. 4th 170 (2007) ................................................................................... 2
Kona Enters. v. Estate of Bishop,
229 F.3d 877 (9th Cir. 2000) .................................................................................... 1
Louie v. Kaiser Found. Health Plan, Inc.,
2008 U.S. Dist. LEXIS 78314 (S.D. Cal. Oct. 6, 2008) ......................................... 17
Lyons v. Chinese Hosp. Ass’n,
136 Cal. App. 4th 1331 (2006) ................................................................................. 4
Margolin v. Regional Planning Comm.,
134 Cal. App. 3d 999 (1982) .................................................................................. 11
Martin v. AmeriPride Servs.,
2011 U.S. Dist. LEXIS 61796 (S.D. Cal. June 9, 2011) ........................................ 15
Mathis v. Spears,
857 F.2d 749 (Fed. Cir. 1988) ................................................................................ 10
Meyer v. Sprint Spectrum L.P.,
45 Cal. 4th 634 (2009) .............................................................................................. 2
Neary v. Regents of Univ. of Cal.,
3 Cal. 4th 273 (1992) ................................................................................................ 5
Nicholson v. Barab,
233 Cal. App. 3d 1671 (1991) .................................................................................. 5
Nightingale v. Hyundai Motor Am.,
31 Cal. App. 4th 99 (1994) ..................................................................................... 11
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Parkinson v. Hyundai Motor Am.,
796 F. Supp. 2d 1160 (C.D. Cal. 2010) .............................................................. 4, 15
Rader v. Thrasher,
57 Cal. 2d 244 (1962) ............................................................................................. 14
Razilov v. Nationwide Mut. Ins. Co.,
2006 U.S. Dist. LEXIS 82723 (D. Or. Nov. 13, 2006) .......................................... 17
Reveles v. Toyota by the Bay,
57 Cal. App. 4th 1139 (1997) ................................................................................... 2
Rodriguez v. West Publ’g Corp.,
563 F.3d 948 (9th Cir. 2009) .................................................................................. 16
Schwarz v. Sec’y of Health & Human Servs.,
73 F.3d 895 (9th Cir. 1995) ...................................................................................... 7
Sci. App. Int’l Corp. v. Super. Ct.,
39 Cal. App. 4th 1095 (1995) ................................................................................. 15
Serrano v. Priest,
20 Cal. 3d 25 (1977) ......................................................................................... 1, 4, 7
Sheppard v. Consol. Edison Co. of N.Y., Inc.,
2002 U.S. Dist. LEXIS 16314 (E.D.N.Y. Aug. 1, 2002) ....................................... 16
Singer v. Becton Dickinson & Co.,
2010 U.S. Dist. LEXIS 53416 (S.D. Cal. June 1, 2010) ........................................ 17
Touhey v. United States,
2011 WL 3179036 (C.D. Cal. July 25, 2011) ........................................................ 15
Trustees of Cent. States Southeast and Southwest Areas Pension Fund v.
Golden Nugget, Inc.,
697 F. Supp. 1538 (C.D. Cal. 1988) ....................................................................... 11
United Steelworkers of Am. v. Phelps Dodge Corp.,
896 F.2d 403 (9th Cir. 1990) .................................................................................... 9
Van Vranken v. Atl. Richfield Co.,
901 F. Supp. 294 (N.D. Cal. 1995) ................................................................... 16, 17
Victoria v. Super. Ct.,
40 Cal. 3d 734 (1985) ............................................................................................... 5
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Vizcaino v. Microsoft Corp.,
290 F.3d 1043 (9th Cir. 2002) ............................................................................ 1, 13
Wang v. Massey Chevrolet,
97 Cal. App. 4th 856 (2002) ..................................................................................... 2
Wershba v. Apple Computer, Inc.,
91 Cal. App. 4th 224 (2001) ................................................................................... 11
STATUTES
Cal. Civ. Code § 1021.5 ......................................................................................... 2, 4
Cal. Civ. Code § 1717 ................................................................................................ 5
Cal. Civ. Code § 1760 ................................................................................................ 2
Cal. Civ. Code § 1780(e) ........................................................................................... 2
Cal. Code of Civ. P. § 1033.5(c) .............................................................................. 15
Cal. Code of Civ. P. § 664.6 ...................................................................................... 5
Cal. Code of Civ. P. §§ 1033.5 (a)(1), (3), (4), and (7) ........................................... 15
OTHER AUTHORITIES
MANUAL FOR COMPLEX LITIGATION, FOURTH, § 14.122 ........................................... 8
MANUAL FOR COMPLEX LITIGATION, FOURTH, § 14.13 .............................................. 1
MANUAL FOR COMPLEX LITIGATION, FOURTH, § 21.7 ............................................... 7
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I. INTRODUCTION AND SUMMARY OF ARGUMENT
This Motion is made pursuant to the Court’s October 17, 2012 Order Granting
Preliminary Approval. (Dkt. No. 168.) Plaintiff was ordered to file an application for
attorneys’ fees and class representative incentive award by December 11, 2012. (See id.)
For the reasons set forth herein, the Court should, respectfully, award attorneys’ fees and
costs to Class Counsel in the amount of $410,000. This amount is less than a third of
Class Counsel’s lodestar. Finally, Plaintiff respectfully requests an incentive award in
the amount of $8,000.
II. ARGUMENT
A. BASES FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
“An award of attorneys’ fees incurred in a suit based on state substantive law is
generally governed by state law.” Champion Produce, Inc. v. Ruby Robinson Co., 342
F.3d 1016, 1024 (9th Cir. 2003); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043,
1047 (9th Cir. 2002); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.
2000). Under California law, the Court awards reasonable attorneys’ fees and costs
where, as here, a litigant proceeding in a representative capacity secures a “substantial
benefit” for a class of persons. Serrano v. Priest, 20 Cal. 3d 25, 38 (1977). “The task of a
federal court in a diversity action is to approximate state law [regarding attorneys’ fee
awards] as closely as possible in order to make sure that the vindication of the state right
is without discrimination because of the federal forum.” Farmers Ins. Exch. v. Sayas,
250 F.3d 1234, 1236 (9th Cir. 2001) (quoting Gee v. Tenneco, Inc., 615 F.2d 857, 861
(9th Cir. 1980)).
B. CALIFORNIA LAW PROVIDES FEES FOR SUCCESSFULLY
PROSECUTING CONSUMER FRAUD CLAIMS
“Shifting fees in a statutory-fee case serves the public policy of encouraging
private enforcement of statutory or constitutional rights.” MANUAL FOR COMPLEX
LITIGATION, FOURTH, § 14.13. California has two statutes providing for an award of
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attorneys’ fees here, the Consumer Legal Remedies Act (“CLRA”), Civ. Code § 1750, et
seq., and the private attorney general statute, Civ. Code § 1021.5.
1. Plaintiff is a “Prevailing Plaintiff,” Entitled to Fees and Costs under
the CLRA
The CLRA provides a fee-shifting provision directing that “[t]he court shall award
court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this
section.” Cal. Civ. Code § 1780(e). “[T]he availability of costs and attorneys’ fees to
prevailing plaintiffs is integral to making the CLRA an effective piece of consumer
legislation, increasing the financial feasibility of bringing suits under the statute.” Meyer
v. Sprint Spectrum L.P., 45 Cal. 4th 634, 644 (2009) (quoting Broughton v. Cigna
Healthplans, 21 Cal. 4th 1066, 1086 (1999)).
The CLRA “shall be liberally construed and applied to promote its underlying
purposes, which are to protect consumers against unfair and deceptive business practices
and to provide efficient and economical procedures to secure such protection.” Cal. Civ.
Code § 1760; see also Wang v. Massey Chevrolet, 97 Cal. App. 4th 856, 869 (2002). An
award of attorneys’ fees to “a prevailing plaintiff” in an action brought pursuant to the
CLRA is mandatory, even where the litigation is resolved by a pretrial settlement
agreement. Kim v. Euromotors West/The Auto Gallery, 149 Cal. App. 4th 170, 178-79
(2007). In the settlement of a CLRA claim, a plaintiff prevails if there is a “net monetary
recovery,” Reveles v. Toyota by the Bay, 57 Cal. App. 4th 1139, 1154 (1997), or where
she is “denied direct relief” but nonetheless the lawsuit “has otherwise achieved its main
litigation objective.” Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 151
(2006)(citation omitted); see also Kim, 149 Cal. App. 4th at 178-81 (discussing Reveles
and Graciano and concluding courts may determine plaintiff prevailed if “he obtained a
net monetary recovery or because he achieved most or all of what he wanted by filing
the action or a combination of the two”).
While either is sufficient, here, both factors are present. Plaintiff’s Complaint
alleged violation of the CLRA and she obtained a net monetary recovery achieving
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“most or all of what” she wanted by filing this action: (1) Defendants’ enforceable
agreement to not use the “6x” claim on labeling and advertising for at least 10 years,
absent new competent and reliable scientific evidence that supports the claim; (2)
restitution of $3.55 per bottle purchased for Class claimants; (3) precedents that will
assist other consumers in vindicating claims for consumer fraud; and (4) a deterrent to
other drug and supplement companies that are tempted to engage in deceptive
advertising or make exaggerated effectiveness claims.
In addition to monetary relief, injunctive relief that is “‘socially beneficial’ . . .
justif[ies] a fee award under” the CLRA. In re Bluetooth Headset Prods. Liab. Litig.,
654 F.3d 935, 944 (9th Cir. 2011). Class Counsel negotiated a prohibition of the use of
the alleged misleading labeling. Defendants have agreed not to label Qunol Liquid
CoQ10 products as six times more effective or providing six times more absorption than
competing products or “regular CoQ10” for ten years, unless they have new, competent
and reliable scientific evidence that supports the claim. Defendants are also required to
request all licensed or direct shipment online or catalog vendors of the product remove
or cease using marketing materials making such claims.
Further, the injunctive relief secures, by binding court order, the suggestions made
by the National Advertising Division (“NAD”) of the Better Business Bureau. The NAD
recommended Defendants “discontinue its claim that Liquid Qunol is ‘up to 6X better
absorption than regular CoQ10.’” Evidence of Improved Absorbability for a Dietary
Supplement Cannot, on its own, Support Claims of Improved Effectiveness, Dkt. 130 Ex
6 at 50. However, the NAD lacked authority to do anything beyond make its
recommendations. Thus, Class Counsel were instrumental in achieving a binding social
benefit for the Class, and accomplished what the NAD recommended but was without
power to enforce.
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2. Plaintiff is a “Successful Party” Entitled to Fees & Costs Under the
Private Attorney General Statute
In addition to the CLRA’s fee provision, California Civil Code § 1021.5
independently provides for an award of attorneys’ fees to a “successful party”:
in any action which has resulted in the enforcement of an important right
affecting the public interest if: (a) a significant benefit, whether
pecuniary or nonpecuniary, has been conferred on the general public or a
large class of persons, (b) the necessity and financial burden of private
enforcement, or of enforcement . . . are such as to make the award
appropriate, and (c) such fees should not in the interest of justice, be
paid out of the recovery, if any.
See generally Serrano, 20 Cal. 3d at 34.
“Similar to California’s fee-shifting statute, the private attorney general statue
makes a plaintiff a ‘successful party’ if it achieves its litigation objectives.” Parkinson v.
Hyundai Motor Am., 796 F. Supp. 2d 1160, 1169-70 (C.D. Cal. 2010). The statute
applies “when a plaintiff ‘acts as a true private attorney general, prosecuting a lawsuit
that enforces an important public right and confers a significant benefit, despite the fact
that his or her own financial stake in the outcome would not by itself constitute an
adequate incentive to litigate.’” Heston v. Taser Int’l., Inc., 431 Fed. Appx. 586, 589
(9th Cir. 2011) (quoting Flannery v. Cal. Highway Patrol, 61 Cal. App. 4th 629, 636
(1998)). “The key question is ‘whether the financial burden placed on the party
[claiming fees] is out of proportion to its personal stake in the lawsuit.’” Id. (quoting
Lyons v. Chinese Hosp. Ass’n, 136 Cal. App. 4th 1331, 1352 (2006)). That an action is
brought on a contingency basis does not undermine a plaintiff’s request for attorneys’
fees under the statute. Lyons, 136 Cal. App. 4th at 1351. Here, Qunol Liquid CoQ10
typically retailed for $29.99, so buyers could not possibly have a stake adequate to
litigate.
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3. The Settlement Agreement Provides for Attorneys’ Fees, Costs and an
Incentive Award
“A request for attorney’s fees should not result in a second major litigation.
Ideally . . . litigants will settle the amount of a fee.” Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). That is what the parties have done here through the Settlement Agreement.
Defendants have agreed to not oppose a request of up to $410,000 in costs and fees for
Class Counsel and an $8,000 incentive award to Plaintiff.
A Settlement Agreement is like any other contract and enforced the same. Cal.
Code of Civ. P. § 664.6; Nicholson v. Barab, 233 Cal. App. 3d 1671, 1681 (1991);
Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 951, 971 (1971). Thus, another
independently sufficient basis for the fee award is Defendants’ contractual agreement to
pay attorneys’ fees and costs up to $410,000. Cal. Civ. Code § 1717; Farmers Ins. Exch.,
250 F.3d at 1236-37 (applying § 1717 in a diversity action). This is to be done with the
view that such agreements are highly favored at law and interpretation is to be in favor
of enforcement if possible. See Neary v. Regents of Univ. of Cal., 3 Cal. 4th 273, 277-78
(1992); Nicholson, 233 Cal. App. 3d at 1683; Victoria v. Super. Ct., 40 Cal. 3d 734, 753,
n.8 (1985). Here, the parties are in agreement as to an appropriate amount of
compensation for Class Counsel’s efforts in obtaining the injunctive relief. Defendants
have agreed not to oppose the reasonableness of the requested fee. Settlement
Agreement ¶ 9.2. “A court should refrain from substituting its own value for a properly
bargained-for agreement.” In re Apple Computer, Inc. Derivative Litig., 2008 U.S. Dist.
LEXIS 108195, at *12 (N.D. Cal. Nov. 5, 2008).
That the actual amount to be awarded is left to the Court to determine, up to the
unopposed limit, does not render the contractual agreement unenforceable. Every term
need not be spelled out to state an enforceable contract, so long as a means to make the
terms certain is provided for by the contract’s terms. Frankel v. Bd. of Dental Exam’rs,
46 Cal. App. 4th 534, 545 (1996). The Settlement Agreement provides the Court
guidance, as it specifies that Defendants have no objection to a fee award that does not
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exceed the unopposed limit of $410,000. Further, if a Fee Award is not made in the
amount contemplated by the Settlement, these funds will remain with Defendants, since
the unopposed amount is wholly independent from the direct class relief. For example,
in Brazil v. Dell Inc., 2012 U.S. Dist. LEXIS 47986, at *2 (N.D. Cal. Apr. 4, 2012), the
court awarded a fee agreed upon between the parties, which was “approximately equal to
their combined lodestar in th[e] case with no multiplier,” because, like here:
The benefits achieved by Class Counsel are not in the form of a “common
fund,” but rather come in the form of structural changes to Dell’s advertising
practices and the payment to Class Members on a claims-made basis.
Moreover, the fee awarded to Class Counsel will be paid directly by Dell,
over and above the consideration to be paid to Class Members, and will thus
not reduce the benefits available to the Class.
Id. at *2-3. Where there is no evidence of collusion and no detriment to the parties,
courts “should give substantial weight to a negotiated fee amount, assuming that it
represents the parties’ best efforts to understandingly, sympathetically, and
professionally arrive at a settlement as to attorney’s fees.” Ingram v. Coca-Cola Co., 200
F.R.D. 685, 695 (N.D. Ga. 2001) (citation omitted).
Here, Class Counsel negotiated with Defendants to reach a fee well below their
lodestar. In addition, the fee was negotiated only after the parties reached agreement in
principle on the key injunctive and monetary relief terms. Moreover, Class Members
have overwhelmingly indicated their approval by the total absence of any objections as
of the time of this application, after a fair and effective notice including the substance of
this fee application. Thus, one can fairly say that truly “all parties” are in agreement on
the contractual Fee Award.
In sum, the parties, in arms’ length negotiations, have determined that a fee award
within the unopposed limit falls within the reasonable range of awards for the particular
circumstances and relief obtained in this case. For the reasons discussed further below,
the Court should confirm the agreed-upon amount.
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C. THE COURT SHOULD APPLY THE LODESTAR METHOD TO
DETERMINE CLASS COUNSEL’S REASONABLE FEE
Under California law, “a court assessing attorney fees begins with a touchstone or
lodestar figure, based on the careful compilation of the time spent and reasonable hourly
compensation of each attorney . . . involved in the presentation of the case.” Ketchum v.
Moses, 24 Cal. 4th 1122, 1131-32 (2001) (quoting Serrano, 20 Cal. 3d at 48); see also
Hensley, 461 U.S. at 433 (“The most useful starting point for determining the amount of
a reasonable fee is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate.”); Perdue v. Kenny A., 130 S. Ct. 1662, 1673 (2010)
(expressing strong preference for lodestar approach).
“[T]he ‘lodestar method’ is appropriate in class actions brought under fee-shifting
statutes . . . where the legislature has authorized the award of fees to ensure
compensation for counsel undertaking socially beneficial litigation.” In re Bluetooth,
654 F.3d at 941; see also MANUAL FOR COMPLEX LITIGATION, FOURTH, § 21.7 at p. 334-
35 (“Statutory awards are generally calculated using the lodestar method.”).
D. CLASS COUNSEL’S LODESTAR IS FAIR AND REASONABLE
Class Counsel’s lodestar of $1,017,472.50 is summarized in Appendix 1 hereto.
This lodestar is based on 2,773.4 hours (1,513.9 attorney hours, 1,251.3 paralegal and
8.2 law clerk hours), and is supported by fair and reasonable rates and hours.
1. Class Counsel’s Rates Are Reasonable
Class Counsel’s rates are reasonable because they are in line with hourly rates
charged by attorneys of comparable experience, reputation and ability for similar
litigation. See Ketchum, 24 Cal. 4th at 1133; see also Blum v. Stenson, 465 U.S. 886, 895
(1984). Courts look to prevailing market rates in the community in which the court sits.
Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995); see also
Camancho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Accordingly,
Class Counsel’s current rates are reasonable if they are in line with the prevailing rates
for other attorneys practicing complex litigation in Southern California. See MANUAL
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FOR COMPLEX LITIGATION, FOURTH, § 14.122 (“The rate should reflect what the attorney
would normally command in the relevant marketplace.”).
Here, Class Counsel’s requested rates are as follows:
Attorney Position Hourly Rate
Ronald A. Marron Partner (MF) $680
Gregory S. Weston Partner (WF) $550
Jack Fitzgerald Partner (WF) $550
Courtland Creekmore Associate (WF) $500
Margarita Salazar Associate (MF) $450
Skye Resendes Associate (MF) $400
Maggie Realin Associate (MF) $375
Melanie Persinger Associate (WF) $315
Law Clerks (MF) $225
Paralegals (MF) $215
Paralegals (WF) $195
To assist courts in calculating the lodestar, a plaintiff must submit “satisfactory
evidence . . . that the requested rates are in line with those prevailing in the community
for similar services by lawyers of reasonable comparable skill, experience and
reputation.” Blum, 465 U.S. at 896 n.11. “The Ninth Circuit has advised that courts are
allowed to rely on their own familiarity with the legal market and subject matter of the
lawsuit when awarding attorneys’ fees,” Collado v. Toyota Motor Sales, U.S.A., Inc.,
2011 U.S. Dist. LEXIS 133572, at *14 (C.D. Cal. Oct. 17, 2011) (citing Ingram v.
Oroudjian, 647 F.3d 925 (9th Cir. 2011)).
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Rates Other Courts Have Awarded. “[R]ate determinations in other cases,
particularly those settling a rate for the plaintiffs’ attorney, are satisfactory evidence of
the prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896
F.2d 403, 407 (9th Cir. 1990).
On October 31, 2012, the Honorable John A. Houston awarded the Weston Firm
fees based on an hourly rate of $525 for Mr. Weston and Mr. Fitzgerald and $650 for
Mr. Marron, as well as $385 for Ms. Resendes, $300 for Ms. Persinger and $215 and
$195 for paralegals of the Marron Firm and Weston Firm, respectfully. Additionally he
awarded the same $500 for Mr. Creekmore, $450 for Ms. Salazar, and $375 for Ms.
Realin, all who no longer work for Class Counsel. Decl. of Ronald A. Marron filed
concurrently herewith. (“Marron Decl.,”), at ¶ 3; Decl. of Jack Fitzgerald filed
concurrently herewith (“Fitzgerald Decl.”) at ¶ 19. Judge Houston noted “the following
hourly billing rates [are] reasonable in light of . . . Class Counsels’ reputation,
experience, competence, and the prevailing billing rates for comparably complex work
by comparably-qualified counsel in the relevant market. . . .” Gallucci v. Boiron, Inc.,
2012 U.S. Dist. LEXIS 157039, *25-26 (S.D. Cal. Oct. 31, 2012).
Additionally, on July 9, 2012, the Honorable Marilyn L. Huff approved the same
rates as Judge Houston for Class Counsel. Marron Decl. ¶ 3; Fitzgerald Decl. ¶ 20. Judge
Huff specifically found these rates “justified by prior awards in similar litigation and the
evidence presented with [plaintiffs’] motion showing these rates are in line with
prevailing rates in this District.” In re Ferrero Litig., 2012 U.S. Dist. LEXIS 94900, at
*11 (S.D. Cal. July 9, 2012). Class Counsel’s rates are also supported by other court
decisions. See Marron Decl. ¶¶ 9-16; Fitzgerald Decl. ¶¶ 23-29.
The request rates here reflect a modest change of 0% to 5% for current attorneys
since the 2012 orders approving Class Counsel’s fee applications by of Judges Houston
and Huff. In addition, Class Counsel’s rates are reasonable and consistent with the rates
charged by both plaintiff and defense firms in Southern California. See Marron Decl.
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¶¶9-16; Fitzgerald Decl. ¶¶ 18-23, 28-29. The rates are also consistent with those
awarded by other courts. See Marron Decl. ¶¶ 11-16; Fitzgerald Decl. ¶¶ 23-26.
Finally, Class Counsel’s rates are reasonable because they reflect additional costs
often billed to clients for which it does not seek reimbursement, including photocopying
(internal and external), first class postage, staff and attorney meals on long days, legal
research and PACER charges. Fitzgerald Decl. ¶ 38.
Survey Data. “Courts also frequently use survey data in evaluating the
reasonableness of attorneys’ fees.” B-K Lighting, Inc. v. Vision3 Lighting, 2009 U.S.
Dist. LEXIS 111968, at *18 (C.D. Cal. Nov. 16, 2009) (citing Mathis v. Spears, 857
F.2d 749, 755 (Fed. Cir. 1988)). A National Law Journal survey confirms that the rates
charged by Class Counsel are reasonable. See Marron Decl. ¶ 13, Fitzgerald Decl. ¶ 29.
Blended Rate. The reasonableness of Class Counsel’s rates is also shown by its
blended lodestar, calculated by taking the total lodestar and dividing it by the total hours
of all timekeepers (attorneys, paralegals, etc.). The blended rate in this case is $366.87
($1,017,472.50 divided by 2,773.4 hours). This compares favorably to blended lodestar
rates approved in other actions. See id. ¶ 25.
2. Class Counsel’s Hours Expended Are Reasonable
Class Counsel are entitled to be compensated for reasonable time spent at all
points in the litigation. Courts should avoid engaging in an “ex post facto determination
of whether attorney hours were necessary to the relief obtained.” Grant v. Martinez, 973
F.2d 96, 99 (2d Cir. 1992). The issue “is not whether hindsight vindicates an attorney’s
time expenditures, but whether at the time the work was performed, a reasonable
attorney would have engaged in similar time expenditures.” Id.
Here, this case was fully litigated, up to nearly the eve of trial. Class Counsel
expended a total of 1,513.9 attorney hours and 1,251.3 paralegal and 8.2 law clerk hours.
See Appendix 1. This includes, inter alia, time billed for investigating the claims and
drafting pleadings; extensive law and motion practice; drafting and responding to
discovery, including taking and defending depositions and third-party discovery;
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reviewing documents and researching legal authorities; preparing for and participating in
meetings and mediation; preparing for and arguing (mostly with success) multiple
motions before this Court; communications and meetings among parties and counsel,
and trial preparation. Counsel should be compensated for all hours claimed, which are
documented and based on contemporaneous time records.1
E. CLASS COUNSEL’S REQUESTED FEE IS REASONABLE
Fee awards in class actions encourage and support compliance with federal and
state law. “The guiding principles in determining awards of attorneys’ fees should be to
provide compensation sufficient to stimulate the motive for representation of classes . . .
.” In re Equity Funding Corp. Sec. Litig., 438 F. Supp. 1303, 1325 (C.D. Cal. 1977).
When determining a reasonable fee in a class action, the lodestar figure is
1 Class Counsel’s detailed time sheets are not necessary for this motion because the
Court need only be provided enough information to assess the reasonableness of the fees
claim, and Class Counsel’s declarations provide this. Margolin v. Regional Planning
Comm., 134 Cal. App. 3d 999, 1006-07 (1982) (attorney declaration as to number of
hours worked by firm members was sufficient); Trustees of Cent. States Southeast and
Southwest Areas Pension Fund v. Golden Nugget, Inc., 697 F. Supp. 1538, 1558-59
(C.D. Cal. 1988). Moreover, the lodestar analysis requires “neither mathematical
precision nor bean-counting,” and allows the Court to “rely on summaries submitted by
the attorneys and . . . not review actual billing records,” In re Rite Aid Corp. Sec. Litig.,
396 F.3d 294, 306-07 (3d Cir. 2005). California authorities likewise “permit[] fee
awards in the absence of detailed time sheets,” since “[a]n experienced trial judge is in a
position to assess the value of the professional services rendered in his or her court.”
Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 255 (2001) (citing Sommers v.
Erb, 2 Cal. App. 4th 1644, 1651 (1992); Dunk v. Ford Motor Co., 48 Cal. App. 4th
1794, 1810 (1996); Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 103
(1994)). Here, the extent of the discovery and law and motion practice, as reflected on
the Court’s docket and summarized in the Motions for Preliminary and Final Approval,
and supporting declarations, readily demonstrates the time expended was reasonable and
necessary to obtain this substantial Settlement for the Class. Nevertheless, Class
Counsel’s detailed time records can and will be provided to the Court immediately upon
order should it exercise its discretion to undertake a more detailed review than required
by these authority.
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“presumptively reasonable,” In re Bluetooth, 654 F.3d at 941 (quoting Cunningham v.
County of Los Angeles, 879 F. 2d 481, 488 (9th Cir. 1988)); see also Harris v.
Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994) (the lodestar “presumptively provides an
accurate measure of reasonable fees”). Here Class Counsel are asking for less than their
“presumptively reasonable” lodestar, in fact less than one third of the amount the Ninth
Circuit labeled “presumptively reasonable”.
1. The Results Achieved for the Class
The Settlement represents an excellent result for the Class and consumers
nationwide. Plaintiff obtained Defendants commitment to effecting court binding
changes in the way it advertises and markets Qunol Liquid CoQ10, a circumstance that
will eliminate misleading advertising that may deceive the public. Additionally, Plaintiff
obtained a partial refund for those who were misled by the deceptive advertising.
a. A Fair Settlement With Benefits for the Class
Here, the resolution of this case represents a beneficial result for consumers
nationwide. In year and a half, Plaintiff aggressively litigated her case, taking it to nearly
the eve of trial before obtaining desired relief in settlement. Class Counsel also achieved
a monetary reward available to any Class Member who fills out a short claim form, even
if they no longer have a receipt or other proof of purchase. Settlement Agreement, ¶ 4.2.
Class Counsel also achieved injunctive relief in the form of a court binding
agreement for Defendants not to use the “6x” claim on packaging of Qunol Liquid
CoQ10 for at least 10 years. The injunctive relief ensures the public will not be subject
to false claims of efficacy and deceived into purchasing the product. See In re Ferrero
Litig., 2012 U.S. Dist. LEXIS 94900, at *11-12 (S.D. Cal. July 9, 2012).
Although injunctive relief of the type provided in the Settlement Agreement may
be difficult to monetize, it undoubtedly has value for the Class. See Brazil v. Dell Inc.,
2012 U.S. Dist. LEXIS 47986, at *4 (N.D. Cal. Apr. 4, 2012) (“The structural changes to
Dell’s marketing practices resulting from this litigation, particularly Dell’s elimination
of allegedly false representations . . . conferred a benefit on both the class members and
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the public at large.”) (citing Vizcaino, 290 F.3d at 1049 (“[i]ncidental or nonmonetary
benefits conferred by the litigation” are factors in a fee application)). Indeed, there is
intrinsic value to truth in advertising. Id.
b. The Effort, Skill, and Experience of Counsel
Class Counsel has extensive experience handling complex consumer class actions.
Marron Decl. ¶¶ 3-4; Fitzgerald Decl.” ¶¶ 7-18. Further, Plaintiff respectfully suggests
that her counsel’s track record in this case, as well as past cases, demonstrates their skill.
See Marron Decl. ¶¶ 3-4; Fitzgerald Decl. ¶¶7-17
Class Counsel has already devoted more than 2,770 attorney and staff hours, and
substantial costs, to litigating this class action. See Appendix 1. Plaintiff also engaged in
substantial discovery and motion practice; filed dozens of documents, and engaged in
lengthy settlement negotiations over fifteen months, including of one mediation session.
Declaration of Gregory S. Weston in Support of Final Approval at ¶¶10-15. Moreover,
Class Counsel was efficient, bringing this action from filing to preliminary approval of a
classwide settlement in only twenty-one months.
Additionally, Class Counsel was able to achieve a substantial Settlement against a
skilled defense team and deep-pocketed adversaries. See In re Warfarin Sodium Antitrust
Litig., 212 F.R.D. 231, 261 (D. Del. 2002), aff’d, 391 F.3d 516 (3d Cir. 2004) (class
counsel “showed their effectiveness . . . through the favorable class settlement they were
able to obtain”). Defendants are multi-million dollar corporations with significant
positions within the supplement industry. They were represented by skilled attorneys
from four different law firms. Anthony Keats, from Keats, McFarland & Wilson, LLP,
and Peter Aufrichtig, from McCarthy Fingar, LLP, representing Defendant Tischcon
Corporation have over 45 years of combined legal experience and are partners with their
respective firms. Evan S. Strassberg, from Vantus Law Group, and Jason Kerr, from
Price, Parkinson & Kerr, PLLC, representing Defendant Quten Research Institute, LLC,
also both have decades of combined legal experience. Mr. Kerr is a partner, while Mr.
Strassberg is a three-time selectee as a Super Lawyer.
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c. The Complexity of the Issues
This was not a simple case. The Food, Drug, and Cosmetic Act is complex, has
been frequently amended, and has lengthy and technical implementing regulations
promulgated by the FDA, which were at issue in this case. The case was also highly
complex due to the scientific properties of Defendants’ product. Indeed, Defendants
planned to offer the reports or testimony of four different expert witnesses.
d. Risk of Non-Payment, Preclusion of Other Employment, and
Ongoing Work
Devoting more than 2,773.4 attorney and staff hours and substantial costs to this
action necessarily precluded other employment for Class Counsel. There was significant
risk that Class Counsel, despite committing these resources, would not have received
any compensation for its services. And Class Counsel’s ability to collect compensation
was entirely contingent upon it prevailing. The substantial risk of non-recovery inherent
in class action litigation is well-documented. See Fitzgerald Decl. ¶¶ 34-36.
When attorneys undertake litigation on a contingent basis, a fee that is limited to
the hourly fee that would have been paid by a fee-paying client, win or lose, is not a
reasonable fee by market standards. Greene v. Dillingham Constr. NA., Inc., 101 Cal.
App. 4th 418, 428-29 (2002).
A contingent fee must be higher than a fee for the same legal services paid
as they are performed. The contingent fee compensates the lawyer not only
for the legal services he renders but for the loan of those services. The
implicit interest rate on such a loan is higher because the risk of default (the
loss of the case, which cancels the debt of the client to the lawyer) is much
higher than that of conventional loans.
Ketchum v. Moses, 24 Cal. 4th 1122, 1132-33 (2001) (quoting the Hon. Richard Posner’s
Economic Analysis of Law (4th ed. 1992)); see also Rader v. Thrasher, 57 Cal. 2d 244,
253 (1962).
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From the outset of this litigation to the present, Class Counsel litigated this matter
on a contingent basis and placed their own resources at risk to do so. Because the fee in
this matter was entirely contingent, the only certainty was that Class Counsel would not
get paid unless they obtained a successful result. See id. Here, while Plaintiff believes an
upward adjustment is warranted based on the contingent nature of this action, she does
not request such an upward adjustment. This factor, nonetheless, supports the rest of her
application.
e. Reaction of the Class
To date, no member of the Class has objected to the Settlement, and no Class
member has requested exclusion. Weston Decl. ¶ 20. Although objections are not due
until January 14, “[t]he absence of any objector” thus far “strongly supports the fairness,
reasonableness, and adequacy of the settlement.” Martin v. AmeriPride Servs., 2011 U.S.
Dist. LEXIS 61796, at *21 (S.D. Cal. June 9, 2011); see also In re Omnivision Techs.,
Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2007) (“By any standard, the lack of
objection of the Class Members favors approval of the Settlement.”); Touhey v. United
States, 2011 WL 3179036, at *8 (C.D. Cal. July 25, 2011) (same). In sum, the reaction
of the Class to the Settlement, including its fee provision, is overwhelmingly positive
and supports a finding that the requested fees are fair, reasonable, and adequate.
F. THE REQUESTED COSTS ARE FAIR AND REASONABLE
Under California Code of Civil Procedure §§ 1033.5 (a)(1), (3), (4), and (7), the
Court must award costs for court fees; deposition costs for transcribing, recording and
travel; service of process fees; and witness fees. In addition, § 1033.5(c) provides
discretion to award reimbursement of other costs if they are “reasonably necessary to the
conduct of the litigation, rather than merely convenient or beneficial to its preparation.”
Parkinson, 796 F. Supp. 2d at 1176 (quoting Sci. App. Int’l Corp. v. Super. Ct., 39 Cal.
App. 4th 1095, 1103 (1995)). Class Counsel has incurred $77,150.22 in recoverable
costs and costs that were reasonably necessary to conduct the litigation, which are
summarized in Appendix 2. This includes $60,630.00 to Kinsella Media for distribution
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of class notice. The Court should note this payment was made by Plaintiff, however, the
issue of who should pay was heavily briefed and a decision was pending when
settlement was reached. This further demonstrates the hard-fought but thoroughly-
negotiated nature of the settlement.
Accordingly, the Court should grant Class Counsel’s request for $77,150.22 in
costs.
G. THE REQUESTED INCENTIVE AWARD IS FAIR AND REASONABLE
Incentive awards “are fairly typical in class action cases,” Rodriguez v. West
Publ’g Corp., 563 F.3d 948, 958 (9th Cir. 2009) aff’d in part and rev’d on other
grounds, 563 F.3d 948 (9th Cir. 2009), and “serve an important function in promoting
class action settlements,” Sheppard v. Consol. Edison Co. of N.Y., Inc., 2002 U.S. Dist.
LEXIS 16314, at *16 (E.D.N.Y. Aug. 1, 2002). Such awards “are intended to
compensate class representatives for work done on behalf of the class, to make up for
financial or reputational risk undertaken in bringing the action, and, sometimes, to
recognize their willingness to act as a private attorney general.” Rodriguez, 563 F.3d at
958-59. Service awards are committed to the sound discretion of the trial court and
should be awarded based upon the court’s consideration of, inter alia, the amount of
time and effort spent on the litigation, the duration of the litigation and the degree of
personal gain obtained as a result of the litigation. See Van Vranken v. Atl. Richfield Co.,
901 F. Supp. 294, 299 (N.D. Cal. 1995). Here, Plaintiff respectfully requests an award of
$8,000 in recognition of her contribution toward the successful prosecution of this case.
Ms. Bruno originated this action in January 2011 and was instrumental in bringing
positive results for class members. She was significantly involved in this action from its
inception to settlement, including reviewing court filings and rulings, having meetings
and communications with Class Counsel throughout the litigation, complying with
discovery, preparing for and being deposed by opposing counsel, and being on-call to
attend court hearings if needed. See Weston Decl. ¶¶4-5, 8-9. Thus, the proposed award
is justified in this case.
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The proposed award is also well below those approved by other Courts in this
Circuit. See, e.g., Singer v. Becton Dickinson & Co., 2010 U.S. Dist. LEXIS 53416,
*24(S.D. Cal. June 1, 2010) ($25,000 award); Van Vranken, 901 F. Supp. at 300
($50,000 award); Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS
78314, at *18-19 (S.D. Cal. Oct. 6, 2008) ($25,000 award); Barcia v. Contain-A-Way,
Inc., 2009 U.S. Dist. LEXIS 17118, *18 (S.D. Cal. Mar. 6, 2009) ($12,000 award).
Accord Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (affirming $25,000 award).
Moreover, incentive awards are appropriate when a class representative will not
benefit beyond ordinary class members. Here, Plaintiff has not received any unusual or
extraordinary benefit, justifying her requested awards. See Razilov v. Nationwide Mut.
Ins. Co., 2006 U.S. Dist. LEXIS 82723, at *12 (D. Or. Nov. 13, 2006) (approving
$10,000 incentive award for representative whose “only personal benefit . . . from a
successful result in this litigation is the . . . entitlement of any class member . . . together
with the likelihood that any further [statutory] violations . . . would cease”).
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III. CONCLUSION
Plaintiff’s Motion should, respectfully, be granted.2
Dated: December 11, 2012 Respectfully submitted,
/s/ Gregory S. Weston
Gregory S. Weston
THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
MELANIE PERSINGER
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: (619) 798-2006
Facsimile: (480) 247-4553
LAW OFFICES OF RONALD
A. MARRON, APLC
RONALD A. MARRON
SKYE RESENDES
ALEXIS M. WOOD
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
Class Counsel
2 Plaintiff will file a single [Proposed] Order and Judgment along with her Motion for
Final Approval, which addresses both final approval of the Settlement Agreement and
this application for fees, costs and incentive awards.
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APPENDIX 1: CLASS COUNSEL’S LODESTAR
FEE LODESTAR:
Firm and Attorney Hours Hourly Rate Lodestar
Law Offices of Ronald A. Marron, APLC:
Ronald A. Marron 142.3 $680 $96,746.00
Margarita Salazar 52.8 $450 $23,760.00
Skye Resendes 18.9 $400 $7,560.00
Maggie Realin 48.8 $375 $18,300.00
Law Clerks 8.2 $225 $1,845.00
Paralegals 4.2 $215 $903.00
Subtotal: $149,132.00
The Weston Firm:
Gregory S. Weston 314.7 $550 $173,085.00
Jack Fitzgerald 267.2 $550 $146,960.00
Courtland Creekmore 509.8 $500 $254,900.00
Melanie Persinger 159.4 $315 $50,211.00
Paralegals 1,247.1 $195 $243,184.50
Subtotal: $868,340.50
TOTAL: $1,017,472.50
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APPENDIX 2: SUMMARY OF CLASS COUNSEL’S COSTS
TOTAL: $77,150.22
Expenses
Date Amount Description
12/15/2010 $11.08 Certified Mail for CLRA demand letter
2/2/2011 $60.00 Service of Complaint of Defendant Tishcon Service
2/2/2011 $95.00 Service of Complaint on Defendant Quten Research Institute
1/31/2011 $350.00 Filing Fee
05/24/2011 $300.00
Per diem expenses for Ms. Salazar in Whiteplanes, NY for
Quten and Tishcon depositions on 8/30 - 31/2011
8/8/2011 $86.70
Mileage for trip to Santa Ana for scheduling conference; 170
miles @ 51 ¢/ mile
8/19/2011 $463.80
Mr. Creekmore's coach airfare from San Diego to New York
for depositions of Raj Chopra and Peter Boutros
8/19/2011 $518.80
Ms. Salazar's coach airfare from San Diego to New York for
depositions of Raj Chopra and Peter Boutros
8/19/2011 $387.80
Hotel rooms for Mr. Creekmore and Ms. Salazar while
attending depositions of Raj Chopra and Peter Boutros in
New York
8/29/2011 $20.00
Mr. Creekmore's travel from airport to hotel while attending
depositions of Raj Chopra and Peter Boutros
8/30/2011 $28.00
Mr. Creekmore's travel from hotel to deposition of Raj
Chopra
8/30/2011 $30.00
Mr. Creekmore's taxi charge while attending depositions of
Raj Chopra and Peter Boutros
8/31/2011 $102.22
Meals for Mr. Creekmore while attending depositions of Raj
Chopra and Peter Boutros
8/31/2011 $25.00
Mr. Creekmore's travel from hotel to deposition of Peter
Boutros
9/20/2011 $86.70
Mileage for trip to Santa Ana to file Motion for Class
Certification and supporting documents under seal; 170
miles @ 51 ¢/ mile
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Expenses (continued)
Date Amount Description
9/28/2011 $350.00 NAD Reports
11/7/2011 $86.70
Mileage for trip to Santa Ana for hearing on Motion for
Class Certification; 170 miles @ 51 ¢/ mile
11/18/2011 $3,083.32 Mediation Fees
12/1/2011 $8.02 Postage for service of third party subpoenas
12/5/2011 $908.70 Payment for recording of deposition of Raj Chopra
12/5/2011 $919.34 Payment for recording of deposition of Peter Boutros
12/9/2011 $250.00
Payment to third party Costco for expenses relating to
production of documents
12/29/2011 $8.50
Mileage for trip to pharmacies for price comparison damages
research with competitor products
1/1/2011-
12/31/2011 $257.30 FedEx charges for Chambers Copies (2011)
Various $17.00 Combined Parking Fees
3/23/2012 $7.20
Postage for Second Set of Interrogatories, sent via certified
mail
5/17/2012 $35.95 Refreshments for expert deposition
5/18/2012 $150.00
Mileage for travel to deposition of John Carlow in Beverly
Hills; 270 miles @ 55.5 ¢/ mile
5/18/2012 $17.29
Meal while defending deposition of John Carlow in Beverly
Hills
5/18/2012 $74.03
Mileage to Deposition of Expert Witness, John Carlow. (San
Diego to Beverly Hills).
5/19/2012 $74.03
Mileage from Expert Witness Deposition, John Carlow
(Beverly Hills to San Diego)
6/28/2012 $6.70 Refreshments for preparation expert while preparing for trial
7/13/2012 $13.50
Professional printing of exhibits for Opposition to Motion
for Summary Judgment and supporting documents
7/16/2012 $93.50
Mileage for travel to Santa Ana for hearing on Motion for
Summary Judgment and Motion for Approval of Class
Notice Plan
7/24/2012 $93.50
Mileage for travel to Santa Ana to drop off chambers copy of
Supplemental Brief re Notice Plan
8/8/2012 $27.00 Postage for mailing notice to identifiable class members
8/9/2012 $99.90
Mileage for travel to Santa Ana for hearing on Motion for
Summary Judgment and Motions in Limine
8/23/2012 $23.77 Supplies for trial
Expenses (Continued)
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Date Amount Description
8/30/2012 $60,630.00 Payment to Kinsella media for Notice of Class Certification
1/1/2012-Present $7,050.00 Combined Payments to Expert Witness
1/1/2012-Present $299.87 FedEx charges for Chambers Copies (2012)
Total $77,150.22
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