LAFFITTE v. ROBERT HALF INTERNATIONAL (BRENNAN)

Appellant’s Petition for Review

Cal.December 23, 2014

— 8222996 NO. Appellate No. B249253 IN THE SUPREME COURT OF CALIFORNIA MARK LAFFITTE,et al., Plaintiffs and Respondents, VS. SUPREME COURT FILED Defendants and Respondents, DEC 23 2014 ROBERT HALF INTERNATIONAL,INC.,et al., Frank A. McGuire Clerk DAVID BRENNAN, Deputy Plaintiffand Appellant. After a Decision of the Court of Appeal, Second Appellate District, Div. Seven, No. B249253; Los Angeles Superior Court, Stanley Mosk Courthouse, Case No. BC 321317 [related to BC 455499 and BC 377930], Hon. Mary H.Strobel, Judge PETITION FOR REVIEW LAWRENCE W. SCHONBRUN (CSBNo. 054519) LAW OFFICE OF LAWRENCE W. SCHONBRUN 86 Eucalyptus Road Berkeley, CA 94705 Telephone: (510) 547-8070 Attorneyfor PlaintiffClass Member/Objector-Appellant andPetitioner David Brennan a NO. Appellate No. B249253 IN THE SUPREME COURT OF CALIFORNIA MARK LAFFITTE,ef al., Plaintiffs and Respondents, VS. ROBERT HALF INTERNATIONAL,INC., et al., Defendants and Respondents, DAVID BRENNAN, Plaintiffand Appellant. After a Decision of the Court of Appeal, Second Appellate District, Div. Seven, No. B249253; Los Angeles Superior Court, Stanley Mosk Courthouse, Case No. BC 321317 [related to BC 455499 and BC 377930], Hon. Mary H. Strobel, Judge PETITION FOR REVIEW LAWRENCE W. SCHONBRUN (CSB No.054519) LAW OFFICE OF LAWRENCE W. SCHONBRUN 86 Eucalyptus Road Berkeley, CA 94705 Telephone: (510) 547-8070 Attorneyfor PlaintiffClass Member/Objector-Appellant and Petitioner David Brennan TABLE OF CONTENTS Page TABLE OF AUTHORITIES.000..ee eeceeessesceeseceeeeeneceseeeeeeeeatesneesseesseseeeens iv INTRODUCTION....... 0c cescsssssseseceseeeesesseesesesesesseeeeeeaeeeseseseeeesatesseessesseeseeenees 1 STATEMENT OF ISSUES PRESENTED...cece eceeeceeetecesceeeeseeesseeeseesees 2 REASONS FOR GRANTING REVIEW 1.0... ceeceececeeeeeeeeeeseseseeseeeessesesseees 3 STATEMENT OF THE CASE Wu... cecesssssesseceeceeseseeeeeetecseeneeeatesseesaeeneeees 17 LEGAL DISCUSSIONoeccccccssscceseeseceseteeeecececneeseeeseecenecaesorseeesaresresesenees 18 I. The Half Decision Contradicts This Court's Holding in SOVAVIO TID... cc cccccccccceeccececececeecneeeceseesneeeeeneeecseeecsensaeessesesseseeesesenteeeeas 19 A. The Halfcourt's holding that the percentage-of-the- fund approach can be usedas starting point for the calculation of a reasonable attorneys’ fee from a class action common fund, with the lodestar analysis as a mere cross-check, is contrary to this Court's seminal Cecision in Serrano [1D.......cccessescseescceseetssceeceseceeeeseeeeeseeesaeees 19 1. The Halfdecision ignores the holdings in Lealao, Vitamin Cases, Thayer, Jutkowitz, Yuki, and SQILON BAY ...eccccsscccsscescetseeseceeseccesseeesanersneeseecesecessecsaeesaes 19 2. None of the "subsequentjudicial opinions" relied upon by Halfemanate from this Court................ 21 3. The Halfdecision raises a straw man issue regarding "eXClUSIVItY"0...ceeeeseceseeseceeeeeeeseeenetaeenes 22 4. The Halfcourt's claim that Consumer Privacy supports its decision to use the percentage-of-the- recovery approach 1S INCOTTeCt...... ee eeesceeteeetseeseeeeeeeenees 22 TABLE OF CONTENTS Page 5. The Halfcourt's reliance on Apple Computeris Without Justificationoccesceseeesteeeecseeseeteaeesnesseeeess 23 6. Half’s assertion that Chavez supports its decision is based on a misunderstanding of Chavez ........::ccce 24 7. Consumer Cause does not support the Half COUTTS HOLING «0...eeeeeeeeeeeeseceeseceeeseeeeeeesesserseeseeeeees 26 8. The Halfcourt's claim that Wershba supports its holding is iNCOLrect....eelessee eeseeeeneeeeeetseeeesneesseees 27 9. The Halfcourt's claim that Serrano IIT supports its holding is INCOLTECEA...eescesneeceseeeeeeseeeeeerssteeeeenees 28 10. The Halfcourt's reference to Fox v. Hale does not support its Holding...eeeeeeeseeeeeeneeeneeteneeeeeeees 28 11. The Halfcourt's reference to Bell v. Farmers does not support its holding...eeeeeeseeteeeeeteeeeeeeeeneeeees 29 12. The Halfcourt's reference to Cundiffdoes not supports its holdingoeeee eseeeeseeceeeeeeeteeceseesseeesesees 29 13. The Halfcourt's reference to Sutter Health should not support its holding...eeeeeeeeeeeeteeeeceeneeeeeeneees 30 14. The Halfdecision cites support from federal attorneys' fee jurisprudence, but federal practices regarding the calculation of reasonable attorneys' fees are not relevant .0....... ec ecceeeeeseeseeseeeeeesneenaeeseseenes 31 CONCLUSION.......ccccccsesssescecsececeeeseeseeseseeeacesececesseeseesaeeneeeeeneseessseenseeenesenes 32 Certificate of Compliance .00.....cceeeeeeesesceteeeceeseeseenevcecseseneeesenseneeeneeees Post - 1 Certificate Of ServiCe........ccccescesesssecesecesecscesceseeeneeeeeeesaeseaseseeseeteseatens Post - 2 il TABLE OF CONTENTS Page Attachments Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Appellant, No. B249253, 2014 Cal.App. LEXIS 1059 (2d App. Dist., Div. 7, Oct. 29, 2014)...eeeeeeereeeeseeeseeesseeeeseees Exhibit 1 Order Modifying Opinion and Certifying for Publication: No Change in Judgment, No. B249253 (2d App. Dist., Div. 7, Nov. 21, 2014)oeeeeseceeseeeteeseseeeeeeees Exhibit 2 ill TABLE OF AUTHORITIES Cases Page Apple Computer, Inc. v. The Superior Court of Los Angeles County, et al., 126 Cal.App.4th 1253 [24 Cal.Rptr.3d 818] (2d App. Dist. Feb. 17, 2005)...eeeeeeees 23, 24, 31 Bell vs. Farmers Exchange, 115 Cal.App.4th 715 [9 Cal.Rptr.3d 544] (1st App. Dist. Feb. 9, 2004) ooo.eeeeeeeseeeeeeeeeteees 29 Blair v. Equifax Check Services, Inc., 181 F.3d 832 (7th Cir. 1999)... eccececescseeesseceseeceseeeesteceeeseceeneeseeeeaeesseenees 15 Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. Feb. 7, 2000) ......... 24,31 Chavez v. Netflix, Inc., 162 Cal.App.4th 43 [75 Cal.Rptr.3d 413] (1st App. Dist. Apr. 21, 2008) 0.eeeeeeeeeespassim City ofDetroit v. Grinnell Corp. 495 F.2d 448 (2d Cir. Mar. 13, 1974) ..ccccccccccsssceecsereesetceeceseeeeececeeceeseateaeenseseeaeseeens 2,4, 14 Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Market, Inc., 127 Cal.App.4th 387 [25 Cal.Rptr.3d 514] (2d App. Dist. Mar. 7, 2005)...es eeesecseseeseeeseeeeeseeessaeesacessessaeeseeeeneees 11, 26 Consumer Privacy Cases, 175 Cal.App.4th 545 [96 Cal.Rptr.3d 127] (1st App. Dist. June 30, 2009)...eeeeeeeeeee 22, 23 Cundiffv. Verizon California, Inc., 167 Cal.App.4th 718 [84 Cal.Rptr.3d 377] (2d App. Dist. Oct. 16, 2008)...ceceee ceeeesereeeeneens 29, 30 Dunk v. Ford Motor Co., et al., 48 Cal.App.4th 1794 [56 Cal. Rptr.2d 483] (4th App. Dist. Aug. 30, 1996)...eeeeeeeneeteees 6, 16 Fox v. Hale & Norcross Silver Mining Co., 108 Cal. 475 [41 P. 328] (Aug. 6, 1895)...eeeeeeeeeseeseeteseecereneeeeeeaee 28, 29 iv TABLE OF AUTHORITIES Cases Page Fraley v. Facebook, Inc., No. C 11-1726 RS, 2013 U.S. Dist. LEXIS 124023 (N.D. Cal., San Francisco Div., Aug. 26, 2013) oo... ecceeseesseeeeeeeeeaeeaee 7,8 Garabedian v. Los Angeles Cellular Telephone Co., 118 Cal.App.4th 123 [12 Cal.Rptr.3d 737] (4th App. Dist. Apr. 29, 2004) oo.cesseessscsseesssesscsssesserasesscseeessenaeeeeees 12 In re Cendant PRIDESLitig., 243 F.3d 722 3d Cir. Mar. 21, 2001)... cccscceseeestecseeeeseneeceseseeeeescetansensensceseeeeesseneesenes 16 Inre Apple iPhone/iPod Warranty Litig., No. C 10-1610 RS, 2014 U.S. Dist. LEXIS 52050 (N.D. Cal., San Francisco Div., Apr. 14, 2014)...eeeenesseeeeeeneeeaeeneeneees 7 In re Vitamin Cases, 110 Cal.App.4th 1041, [2 Cal-Rptr.3d 358] (Ist App. Dist. July 24, 2003)... cecseceseceeseceseeseeeseeseseeeeeeesersereeneens 20, 23 Jutkowitz v. Bourns, Inc., et al., 118 Cal.App.3d 102 [173 Cal.Rptr. 248] (2d App. Dist. Apr. 16, 1981)... 5, 6, 8, 14, 15, 20 Kullar v. Foot Locker Retail, Inc., et al., 168 Cal.App.4th 116 [85 Cal.Rptr.3d 20] (1st App. Dist. Oct. 14, 2008) oo.eereeeeeeteees 16 Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Plaintiffand Appellant (Halfdecision") No. B249253, 2014 Cal.App. LEXIS 1059 (2d App. Dist. Oct. 29, 2014)...eeeseesseeseesseseeeeeeeerecsecseesaeateneesnenspassim Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19 [97 Cal. Rptr. 2d 797] (1st App. Dist. July 10, 2000)...eenspassim Robbins v. Alibrandi, 127 Cal.App.4th 438 [25 Cal.Rptr.3d 387] (ist App. Dist. Feb. 4, 2005) ooeeeneeeeeneeteeeeees 12 TABLE OF AUTHORITIES Cases Page Salton Bay Marina, Inc., et al. v. Imperial Irrigation Dist., 172 Cal.App.3d 914 [218 Cal.Rptr. 839] (4th App. Dist. Sept. 30, 1985) oooccceseescssesseeesecsteeeseeesenene 5, 6, 8, 21 Serrano v. Priest (Serrano III), 20 Cal.3d 25, [141 Cal.Rptr. 315] (Oct. 4, 1977).eesessecseeceesecssersseenesenseeeonspassim Serrano v. Unruh, 32 Cal.3d 621 [186 Cal.Rptr. 754] (Oct. 28, 1982).cececerecerecnscneesseeeseeseessaseeseseeees 11 Shaw v. Toshiba America Information Systems, Inc., 91 F. Supp. 2d 942 (E.D. Tex., BeaumontDiv., Jan. 28, 2000)... 26 Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495 [89 Cal.Rptr.3d 615] (3rd App. Dist. Jan. 27, 2009) oo.eeeeeeeees 8, 9, 30 Thayer v. Wells Fargo Bank N.A., 92 Cal. App. 4th 819 [112 Cal. Rptr. 2d 284] (1st App. Dist. Oct. 2, 2001)ooteees 20 The People ex rel. Department ofTransportation v. Yuki, etal., 31 Cal.App.4th 1754 [37 Cal.Rptr.2d 616] (6th App. Dist. Jan. 6, 1995).eeececeresesseessecssescsestecsesssessessseesens 5, 8, 21 Trustees v. Greenough, 105 U.S. 527 (May 8, 1882)...eeeeeeceeeeeeeeeseneee 12 Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224 [110 Cal.Rptr.2d 145] (6th App. Dist. July 31, 2001)...eee 27,28 Zucker v. Occidental Petroleum Corp., et al., 968 F.Supp. 1396 (C.D. Cal. June 4, 1997)ooceceeesceseesseneeeceeeeeenee 28 Vi Statutes, Codes and Rules Page California Rules of Court (CRC) Rulle 8.1 1OS(C) oo. ececcccccessesseesecenecesaeeceeeeesceeeesneceseneessseeetsaecessaneseateneees 1 Rule 8.11208) 0. cece eecesecsseeesneceeeseeeesseceeesesaecessceseccssaeescesesaeesessaeoarees 1 Rule 8.500(D)(1)......ceeccesscssccsceceseeteseeesccesseeeeseesesseeessseeeesaeerseaeeeeaes 3,10 Texts, Treatises, and Other Page Grady, John F., Reasonable Fees: A Suggested Value-Based Analysisfor Judges, 184 F.R.D. 131 (1998)...eeeeeseeteseeeesnneeeeeseesseeene 13 Pearl, Richard M., California Attorney Fee Awards, 3d ed. (CEB Mar. 2014 Update) oo...ceceeeeseeeseeeeseeceesseecnsneceesaesoeeseeees 9,10 Vii INTRODUCTION Plaintiff Class Member/Objector and Appellant David Brennan respectfully petitions this Court for review of the October 29, 2014, opinion(initially unpublished) of the California Court of Appeal, Second Appellate District, Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Plaintiffand Appellant, No. B249253, 2014 Cal.App. LEXIS 1059 (2d App. Dist., Div. 7, Oct. 29, 2014) (hereinafter "Half decision"). On November21, 2014, the Second District issued an "Order Modifying Opinion and Certifying for Publication; No Change in Judgment" under California Rules of Court (hereinafter CRC), Rules 8.1120(a) and 8.1105(c), as a result oftwo letters submitted to the Second District that sought publication. One of those letters was from ConsumerAttorneys of California.! A copy of the published opinion is attached as Exhibit 1. A copy of the "Order Modifying Opinion and Certifying for Publication; No Change in Judgment"is attached as Exhibit 2.2 | A professional association of attorneys (formerly California Trial Lawyers Association), www.caoc.org. 2 The Second Appellate District's modifications to the text of the initially unpublished opinion have not yet been includedin the published version. STATEMENT OF ISSUES PRESENTED Doesthis Court's seminal decision in Serrano v. Priest, 20 Cal.3d 25 [141 Cal.Rptr. 315] (Oct. 4, 1977) (hereinafter Serrano ITD, establishing the rules for judicial calculations of reasonable attormeys' fees: "The starting point of every fee award, onceit is recognized that the court's role in equity is to provide just compensation for the attorney, must be a calculation of the attorney's services in terms of the time he has expendedon the case." Serrano IT, 20 Cal.3d at 49 n.23 (emphasis added), citing City ofDetroit v. Grinnell Corp. 495 F.2d 448, 470 (2d Cir. Mar. 13, 1974), permit a Californiatrial court to anchorits calculation of a reasonable attorneys' fee award from a class action commonfund on the percentage-of-the-fund approach,> using a lodestar calculation merely as a cross-checkofthe selected percentage? The Halfdecision, citing published California appellate authorities, holds that a California trial court has discretion to anchor its calculation of a reasonable attorneys' fee by employing either the percentage-of-the-fund approachor the lodestar/multiplier approach. Whenusing the percentage-of-the-fund approachasthe starting point, the Halfcourt holds that a trial court may employ a lodestar calculation to merely cross-check the selected percentage. 3 Also referred to as the percentage-of-the-benefit approach or the percentage-of-the-recovery approach. The percentage-of-the-fund approach involvesselecting a percentage of the amount of moneyin the settlement fund as a reasonable attorneys’ fee. In the lodestar/multiplier approach, the court determines the reasonable amountoftime spent on the legal services provided, which is multiplied by the prevailing marketrates for the services rendered, and then possibly enhancing the award for enumerated special factors. REASONSFOR GRANTING REVIEW 1. This Court should grant review of the Halfdecision "to secure uniformity" (CRC 8.500)(b)(1)) because thereis a split of authority among courts of appeal in California about howtrial court judges maycalculate reasonable attorneys’ fees awarded from class action common fund settlements. A. There are presently at least three different and contradictory published appellate decisions interpreting Serrano II, supra. (1) The most extremeinterpretation of Serrano ITT is this Halfdecision. According to Half, the starting point for the calculation of a reasonable attorneys' fee from a class action common fund may beeither the percentage-of-the-recovery approachor the lodestar/multiplier approach. Wherethe trial court chooses to anchor the fee award to the percentage-of-the-recovery approach,it may use a lodestar calculation as a mere cross-check: Thetrial court also performed a lodestar calculation to cross-check the reasonableness of the percentage of fund award. This wasentirely proper. (Half, Exhibit 1-11 at *33.) The Halfdecision amounts to a repudiation ofthis Court's Serrano III's decision: "The starting point of every fee award ... must be a calculation of the attorney's services in terms of the time he has expendedonthe case. Anchoringthe analysis to this conceptis the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts." Serrano III, supra,, 20 Cal.3d at 49 n.23, citing City ofDetroitv. Grinnell, 495 F.2d at 470, supra (emphasis added). Fundamentalto its [the trial court's] determination — and properly so — was a careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case. Serrano III, supra, 20 Cal.3d at 48 (emphasis added; footnote omitted). (2) A different interpretation of Serrano II was issued by the First Appellate District's decision in Lealao v. Beneficial California, Inc., 82 Cal.App.4th 19 [97 Cal. Rptr. 2d 797] (1st App. Dist. July 10, 2000). Lealao follows Serrano II's direction to anchor the award of reasonable attorneys' fees to a lodestar calculation as a first step. However, the Lealao court goes onto say that after the initial lodestar calculation is made,a trial court may consider a percentage-of-the-fund analysis in determining an appropriate lodestar enhancement.‘ In so holding, the Lealao court nonetheless conceded the uncertainty of its modification of Serrano III: Prior to 1977, when the California Supreme Court decided SerranoIII, supra, 20 Cal.3d 25, California courts could award a percentage fee in a common fund case.... After Serrano III,it is not clear whether this maystill be done. Aswe havesaid, the California Supreme Court has never prohibited> adjustmentofthe lodestar [based on a percentage-of-the-benefit analysis]. Lealao, supra, 82 Cal.App.4th at 27 (emphasis added) andat 49, respectively. (3) Thethird interpretation of SerranoIII is diametrically opposed to Halfand Lealao. The Second Appellate District's decision in Jutkowitz v. Bourns, Inc., et al., 118 Cal.App.3d 102 [173 Cal.Rptr. 248] (2d App. Dist. Apr. 16, 1981) (and the cases adopting its reasoning®) holds that under SerranoIII, not only must 4 The terms "lodestar multiplier" and "lodestar enhancement" can be used interchangeably. 5 Petitioner notes that, on the other hand, the Supreme Court has never approved such an adjustment either. 6 Accord, The People ex rel. Dep't ofTransp. v. Yuki, et al., 31 Cal.App.4th 1754, 1769, 1770 [37 Cal.Rptr.2d 616] (6th App. Dist. Jan. 6, 1995), citing Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d at 914, 954 [218 Cal.Rptr. 839] (4th App. Dist. Sept. 30, 1985) (citation omitted): "(T]he correct amount of compensation cannotbearrived at objectively by simply taking a percentage [of the recovery]. [It is improperto calculate] "fee awards that bear no relationship to the amountof attorney time actually incurred the lodestar approachbethefirst step in the calculation, but that percentage-based contingentfee litigation cannot be part of a judicial determination of a reasonable attorneys' fee. In our opinion,the clear thrust of the holding in Serrano, supra, and the cases upon which that holding relied, is a rejection of any "contingent fee" principle in cases involving equitable compensation for lawyers in class actions or other types of representative suits. Jutkowitz, supra, 118 Cal.App.3d at 110 (emphasis added). B. These conflicts are confirmed by the Fourth Appellate District decision in Dunk v. Ford Motor Co.: Later cases have cast doubt on the use of the percentage method to determine attorney fees in California class actions. The award of attorney fees based on a percentage of a "common fund" recovery is of questionable validity in California.... Dunk v. Ford Motor Co., et al., 48 Cal.App.4th 1794, 1809 [56 Cal. Rptr.2d 483] (4th App. Dist. Aug. 30, 1996) (emphasis added). in the preparation andtrial of the case." and Salton Bay Marina, supra, 172 Cal.App.3d at 954,citing Jutkowitz, supra, 118 Cal-App.3d at 111 (emphasis added): "While the size of the class may affect the complexity of counsel's task and the size of the fund created may reflect the quality of his work, the correct amount of compensation cannotbe arrived at objectively by simply taking a percentage of that fund." The Consumer Attorneys of California'sletter seeking publication of the Halfdecision reenforces Petitioner's argumentregarding the unsettled state of the law on judicial calculations of reasonable attorneys' fee awards from class action common funds. Theletter correctly states that the Halfdecision breaks new groundin holding that in awarding a reasonable attorneys' fee from a common fund,the trial court may place primary reliance on the percentage-of-the-recovery approach,using a lodestar calculation as a mere cross-check. Theletter also identified two recent federal court decisions, In re Apple iPhone/iPod Warranty Litig., No. C 10-1610 RS, 2014 U.S. Dist. LEXIS 52050 (N.D. Cal., San Francisco Div., Apr. 14, 2014), and Fraley v. Facebook, Inc., No. C 11-1726 RS, 2013 U.S. Dist. LEXIS 124023 (N.D. Cal., San Francisco Div., Aug. 26, 2013), acknowledging the controversy surrounding the proper use of the percentage-of-the-fund method whencalculating reasonable attorneys' fees under California law. Indeed, some post-Serrano III appellate opinions have questioned the continued availability of the percentage of fund method. See e.g. Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1809, 56 Cal. Rptr. 2d 483 (1996) ("The award ofattorney fees based on a percentage of a ‘commonfund' recovery is of questionable validity in California."). Inre Apple iPhone, supra, 2014 U.S. Dist. Lexis 52050, at *6. In opposing the fee request, Facebookinsists that applicable California law requiresthat the fee award be calculated through the lodestar approach, and not as a percentage of the recovery. Fraley v. Facebook, Inc., supra, 2013 U.S. Dist. LEXIS 124023 at *5. Publication of the Halfdecision, as important asit is, does not resolve the conflict surrounding the meaning of Serrano III. It merely widens and deepens the disagreements among California's appellate courts interpreting SerranoIII. Our system of law is based on intermediate appellate courts andtrial courts following the instructions of this Court. There is aneed for uniformity in how reasonable attorneys' fees are to be calculated in California. This Court should rule on which interpretation(s) of SerranoIII is correct: (1) The lodestaris the starting point for the judicial calculation of a reasonable attorneys’ fee awards paid from a class action common fund. See Serrano III, supra, and Lealao, supra. (2) Either the lodestar/multiplier approach or the percentage-of-the-fund approach maybethe starting points. (Half, supra, and Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495 [89 Cal.Rptr.3d 615] (3rd App. Dist. Jan. 27, 2009).) (3) The lodestar approach must bethestarting point for judicial calculation of a reasonable attorneys’ fee, and percentages based upon contingent fee litigation cannotbe part of the calculation. (Jutkowitz, supra; The People ex rel. Dep't ofTransp. v. Yuki, supra; and Salton Bay, supra.) (4) The lodestar approachis the starting point for the calculation of a reasonable attorneys’ fee, but the percentage- of-the-recovery approach can be considered in determining a multiplier to the lodestar. (Lealao, supra, and Chavez v. Netflix, 162 Cal.App.4th 43 [75 Cal.Rptr.3d 413] (Ist App. Dist. Apr. 21, 2008).)7 (5) The lodestar/multiplier approach can be used as a cross-check to a fee award anchored to the percentage-of- the-fund approach. (Half supra, and Sutter Health, supra.) (6) The lodestar/multiplier approach cannot be used as a cross-check to the percentage-of-the-recovery approach. [I]t is improperforthe trial court to start with the amount of the contingency fee and then work backwards, applying the various other factors in order to justify that amount. Yuki, supra, 31 Cal.App.4th at 1771 (emphasis added). Confirming the lack of a unified interpretation of Serrano III, Richard Pearl, author of the CEBtreatise California Attorney Fee Awards, can only speculate on whatthis Court's position would be on the issue. [T]here seemslittle reason to believe that the California Supreme Court would find them8 unacceptable. 7 Aswill be explained in the Discussion on page 25, infra, the statement in Chavez, supra, 162 Cal.App.4th at 65-66,that "It is not an abuse of discretion to choose one method overanother..." is incorrectly used as support for the assertion that either the percentage approachor the lodestar approach maybethestarting point for a judicial award of reasonable attorneys’ fees. Chavez wasreferring to the method for calculating a multiplier using differing percentage-of- the-fund analyses after having performed a lodestar calculation. 8 Cases that have indicated that the percentage-of-fund methodis a permissible starting point. Richard M.Pearl, California Attorney Fee Awards, 3d ed. (CEB Mar. 2014 Update, at § 8.13(b), p. 8-13 (emphasis added). 2. This Court should grant review of the Halfdecision becauseit is "necessary to ... settle an important question oflaw...." (CRC, Rule 8.500(b)(1).) On a regular basis, multimillion-dollar attorneys’ fee awardsare being taken from class members' commonfundrecoveries in class action settlements. Whether a percentage-of-the-fund approach will be permitted to anchor or modify such fee awards directly affects the amount of moneythat will be taken from class members' recoveries. The Halfdecision has cumulative ramifications in the hundreds of millions of dollars. As Richard Pearl has noted, allowing courts to base fee awards on percentages of the amount of the class's recovery increases the amount of money paid toward attorneys’ fees. Commonfund fees, however, can sometimes be calculated using a percentage-of-the-fund method, whichcan result in fees that the courts might be reluctant to grant under the lodestar-adjustment method. Pearl, California Attorney Fee Awards, supra, at § 5.18, p. 5-11 (emphasis added). Anchoring the award to the percentage-of-the-recovery approach,in addition to having enormousfinancial consequences, is important as a matter of legal theory as well. A. Underthis Court's Serrano III decision, a reasonable attorneys' fee is directly linked to the legal services provided by the attorney. Underthe percentage-of-the-fund method, 10 the determination of a reasonable fee is based on a totally different concept — the dollar amount of the fund. This conflict in methodology represents a fundamental policy difference on the concept of whatis a reasonable attorneys’ fee. Severing the connection between the amount of work required to produce the recovery and the amountofthe attorneys' fees undermines the concept of windfall attorneys' fees. The windfall concept is based on the disparity between the amount of money sought by the attorney andthe legal services provided by that attorney. B. |The common fund doctrine is based on the concept of quantum meruit — the value of the services rendered. An award of fees under the equitable common fund doctrine is ‘analogous to an action in quantum meruit: The individual seeking compensation has, by his actions, benefited another and seeks payment for the value of the service performed." Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Market, Inc., 127 Cal.App.4th 387, 397 [25 Cal.Rptr.3d 514] (2d App. Dist. Mar. 7, 2005), citing Serranov. Unruh, 32 Cal.3d 621, 628 [186 Cal.Rptr. 754] (Oct. 28, 1982) (emphasis added). Basing an attorneys' fee award on a percentage of the dollar amount of the settlement fund violates the very principle upon which the common fund doctrine was established. Furthermore, to allow attorneys' fee awards to be based on a percentage ofthe class settlement fund is inconsistent with California class action attorneys’ fee jurisprudence: 11 Nonetheless,the plaintiffs' attorneys owe an ethical and fiduciary duty to their clients ... to limit fees to an amountthat represents the value of the work done. Robbins v. Alibrandi, 127 Cal.App.4th 438, 444 [25 Cal.Rptr.3d 387] (1st App. Dist. Feb. 4, 2005) (emphasis added). C. Contingent fee principles from traditional single- plaintiff models oftort litigation are incompatible with the founding principles of the common fund doctrine: Counselfees ... [awarded under the common fund doctrine,] if made with moderation and a jealous regard to the rights of those who are interested in the fund, are not only admissible, but agreeable to the principles of equity and justice. Trustees v. Greenough, 105 U.S. 527, 536-37 (May 8, 1882) (emphasis added). Accord, Garabedian v. Los Angeles Cellular Telephone Co., 118 Cal.App.4th 123, 128 [12 Cal.Rptr.3d 737] (4th App. Dist. Apr. 29, 2004) ("{T]his Court must exercise moderation in determining the ... size [of counsel fees and expenses]...." (citations omitted).) The Lealao court clearly distinguished the calculation of the percentage to be taken from a class action recovery (where there are hundreds, thousands, or even millions of clients) from traditional individual client's contingent fee arrangements from tort law. "In a contingent fee case involving a smal! number of plaintiffs, a percentage of the recovery, even a fairly large percentage such as 331/3 percent, will frequently yield a result that is fair to both the attorney andtheclientin light ofthe value providedto the client by the attorney. But where 12 the size of the settlementis due to the factthatit resolves not just one claim, but large numbers of identical claims, and the services of the attorney are essentially the same as would have been required if there had been only one claim, it makes no sense to gear the fee awardto the total dollar amountofthe settlement..... However, treating the recovery of every class memberin an identical way for fee purposes, and awarding the attorney a fee based upon a percentage ofthe total recovery, cannotbe justified, even if the percentageis ‘small,' as is frequently argued in support of percentage fees in class actions." Lealao, supra, 82 Cal.App.4th at 49 n.16, citing John F. Grady, Reasonable Fees: A Suggested Value-Based Analysisfor Judges, 184 F.R.D. 131, 141-142 (1998) (footnote omitted). D. The purposeofthe class action mechanism is to provide accessto the courts by allowing lawyers to aggregate small claims. It is the mechanism itself that makes individual small claims viable to pursue throughlitigation. A contingent fee is an entirely different mechanism used in personalinjury accidentlitigation where oneplaintiff pays a lawyer typically one-third (1/3) of his or her recovery to pursue one individual claim. These twotheories, while superficially similar in that they both involve contingent legal services, serve very different numbersofplaintiffs. The aggregation of large numbersof claims into a class action produces very large potential liabilities, creating a strong pressureto settle that is absentin individual tort claims. This pressure greatly reduces contingentrisk, as demonstrated by the fact that almost all class actions settle. Because ofthat, the contingent fee methodology for individualtort claims is fundamentally incompatible 13 with a mechanism designedto join a large numberof small claimsin a court proceeding. IfHalfis to change common fundreasonable attorneys' fee jurisprudence soradically from its historical roots, that decision should be madeby this Court. It should not beleft to varying contradictory appellate court decisions by lowercourts orlegal commentators "reading tea leaves" about what this Court wouldlikely do. 3. This Court should grant review because,as is made clear in SerranoIII, judicial determinations of reasonable attorneys’ fees involve important issues of public policy and the public's respect for the legal profession and the judiciary. "Anchoring the analysis to this concept[the lodestar method] is the only way of approaching the problem that can claim objectivity, a claim whichis obviously vital to the prestige of the bar and the courts." Serrano III, supra, 20 Cal. at 49 n.23, citing City ofDetroit v. Grinnell, supra, 495 F.2d at 470 (emphasis added). Accord, Jutkowitz v. Bourns, supra, 118 Cal.App.3d at 111 (emphasis added): [A]s was stated in Serranov. Priest, supra, favorable public perception and the prestige of the legal profession and our system of justice, requires a formula for computation which can be objectively measured. Reasonable attorneys’ fees paid to attorneys from commonfundclass action recoveries is an issue of continuing public importance. It merits this Court's providing a clear explanation of 14 how SerranoIII should be interpreted by the appellate andtrial courts of this state, as well as federal courts, when called upon to calculate reasonable attorneys' fees under California law. 4. This Court should grant review because it is unlikely this issue will be raised again anytime soon. Petitioner respectfully requests that this Court grant review of the Halfdecision because there is a substantial likelihood that this issue will not be brought to this Court for review anytime soon. As noted by Seventh Circuit Court of Appeal Judge Frank H. Easterbrook, basic issues of class action jurisprudence are often not vetted in appellate courts: Becausea large proportion of class actions settl[e] or [are] resolved in a way that overtakes procedural matters, some fundamental issues aboutclass actions are poorly developed.... But, the more fundamental the question and the greater the likelihood that it will escape effective disposition at the end of the case, the more appropriate is an appeal.... Blair v. Equifax Check Services, Inc., 181 F.3d 832, 835 (7th Cir. 1999) (emphasis added). Questions about the properroles for the percentage approach andthe lodestar/multiplier approach werefirst raised in Jutkowitz, supra, in 1981. The issue ofthe differing appellate interpretations of this Court's Serrano III decision was discussed in Dunk, supra, in 1996, and in Lealao, supra, in 2000. There has been no resolution to this conflictin all this time. It is unlikely that another opportunity to address these issues will arise anytime soon. . 15 5. This Court should grant review because the judiciary has a special responsibility to ensure the proper functioning ofthe class action mechanism. Theclass action is a judicial creation. Although not indifferent to whetherthe class in the aggregate or the attorneys will receive more money, individual unnamed class members do not have a sufficient financial interest to pursue resolution of this conflict in attorneys' fee jurisprudence. Indeed, that is why the California judiciary has an essentialrole in the protection of class membersin class actions. "The courts are supposedto be the guardiansofthe class." Kullar v. Foot Locker Retail, Inc., et al., 168 Cal-App.4th 116, 129 [85 Cal.Rptr.3d 20] (1st App. Dist. Oct. 14, 2008) (citation omitted). This responsibility reaches to the appellate courts as well. While the statements in In re GM Trucks and Zuckerrefer to the authority of district, not appellate, courts in connection with class action settlements, the cases make clear that reviewing courts retain an interest — a most special and predominate interest — in the fairness ofclass action settlements and attorneys' fee awards. In re Cendant PRIDESLitig., 243 F.3d 722, 731 (3d Cir. Mar. 21, 2001) (emphasis added). 16 STATEMENT OF THE CASE This class action involves a wage and hour dispute by employees of Robert Half International, Inc. Filed in the Los Angeles County Superior Court, the settlement created a commonfund of $19 million. The Settlement Agreement negotiated between class counsel and defendantreads: Class Counsel will apply to the Court for an award of not morethan $6,333,333.33 (33.33%) of the Gross Settlement Amount)... (R.A., Vol. 1, Tab 6 at 72, 4 ILLC.2.) The "Notice of Class Action Settlement" that was sent to class members advised them that: Class Counsel... will seek approval from the Court for the paymentin an amount not more than $6,333,333.33 for their attorneys’ fees.... (AA 5.) On January 28, 2013, Plaintiff Class Member/Objector Brennan objected to Class Counsel's attorneys' fee request. (AA 7.) On April 10, 2013, the trial court approved the settlement and awarded Class Counsel $6,333,333.33 (or 33.33% ofthe class's settlement fund). (AA 191.) On June 10, 2013, Plaintiff Class Member/Objector Brennan appealed the trial court's Order Granting Final Approval of Class Action Settlement and Judgment Thereon to the Second District Court of Appeal. (AA 195.) On October 29, 2014, the Court of Appeal for the Second Appellate District issued its subsequently published opinion,affirming 17 the trial court's award of 33-1/3 percentofthe class's recovery as a reasonable attorneys' fee to Class Counsel. (Exhibit 1 attached.) On November21, 2014, the Second District issued an order that modified its opinion and certified it for publication, with no change in judgment. (Exhibit 2 attached.) The Second District's decision became final on November28, 2014. A petition for rehearing wasnotfiled in this case. LEGAL DISCUSSION The Halfdecision, permitting the judicial anchoring of awards of reasonable attorneys’ fees to the percentage-of-the-fund approach and using the lodestar as mere cross-check: Wealso confirm that the percentage of recovery method for calculating an award of attorneys’ fees is still viable in common fund cases. (Half, Ex. 2-1, Order Modifying Opinion,etc.); The percentage of fund method survives in California class action cases, and thetrial court did not abuseits discretion in usingit, in part [with a lodestar cross-check], to approve the fee request in this class action. (Half, Ex. 1-10, at *31), conflicts with Serrano III, supra. 18 I. THE HALFDECISION CONTRADICTS THIS COURT'S HOLDING IN SERRANOIIT This Court could understandably ask, how could the Halfcourt begin its fee discussion by quoting from Lealao this Court's instructions in Serrano III: In Lealao v. Beneficial California, Inc., supra, 82 Cal.App.4th 19 the court stated that "[t]he primacy of the lodestar method in California was established in 1977 in Serrano [v. Priest (1977)] 20 Cal.3d 25 [141 Cal. Rptr. 315, 569 P.2d 1303]..... [OJur Supreme Court declared: "The starting point of every fee award ... must be a calculation of the attorney's services in terms of the time he has expended on the case.""" (Ud. at p. 26.) (Half, Ex. 1-9 at *27), and then concludethat either the percentage-of-the-fund approach or the lodestar approach maybethe starting pointfor the calculation of a reasonable attorneys' fee? A. The Halfcourt's holding that the percentage-of-the-fund approach can be usedas a starting point for the calculation of a reasonable attorneys' fee from a class action common fund, with the lodetar analysis as a mere cross-check,is contrary to this Court's seminal decision in Serrano LI. 1. The Halfcourt ignored: (a) The holding in Lealaothatstates: {Serrano III] said ... "the starting point" of every equitable fee award "must be a calculation of the attorney's services in terms ofthe time he has 19 expended onthecase. Cal.3d at p. 48, fn. 23, italics added.) (Serrano III, supra, 20 Lealao, supra, 82 Cal.App.4th at 45. The holdings of the First Appellate District in In re Vitamin Cases, 110 Cal.App.4th 1041 [2 Cal.Rptr.3d 358] (1st App. Dist. July 24, 2003), and Thayer v. Wells Fargo Bank N.A., 92 Cal. App.4th 819 [112 Cal. Rptr. 2d 284] (1st App. Dist. Oct. 2, 2001), state: "!The primary method for establishing the amount of "reasonable" attorney feesis the lodestar method.... Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative "multiplier" to take into accounta variety of other factors.... Undercertain circumstances, a lodestar calculation may be enhancedonthebasis of a percentage-of- the-benefit analysis..." In re Vitamin Cases, supra, 110 Cal.App.4th at 1052, citing Thayer, supra, 92 Cal.App.4th at 833 (internal citation omitted). The holding in the Second Appellate District's decision in Jutkowitz, supra, 118 Cal.App.3d at 110: It appears to us that plaintiff's argumentis an attempt to engraft a “contingent fee" concept on to the equitable commonfund doctrine. Significantly, in none of the "common fund"cases, whetherclass actions or nonclassactions... is there any suggestion that the size ofthefund controls the determination ofwhat is adequate compensation. 20 (d) The holding in the Sixth Appellate District's decision in The People ex rel Dep't ofTransp. v. Yuki, supra,, 31 Cal.App.4th at 1771: [I]t is improperfor the trial court to start with the amount of the contingency fee and then work backwards, applying the various other factors in order to justify that amount. (e) The holding in the Fourth Appellate District's decision in Salton Bay Marina, supra, 172 Cal.App.3d at 975-58: On remand,the court should begin its analysis with a calculation of the attorney services in terms of time the attorneys actually expended on the case. (Serrano v. Priest, supra, 20 Cal.3d 25, 48, fn. 23.) 2. The Halfcourt's decision, asserting that the Lealao court's statement: "After Serrano..., it is not clear whetherthis [fee award based primarily on the percentage-of-the- recovery approach] maystill be done." (Half, Ex. 1-10 at *29-*30, citing Lealao, supra, 82 Cal.App.4th at 27), had been "madeclear" by subsequentjudicial opinions: Subsequentjudicial opinions have madeit clear that a percentage fee award in a commonfund case "may still be done." (Half, Ex. 1-10 at *30), 21 ignores the fact that none of the "subsequent judicial opinions" cited in the Halfdecision emanate from this Court!9 3. The Halfdecision raises a straw man issue regarding "exclusivity." Thetrial court did not use the percentage of fund method exclusively to determine whetherthe amountofattorneys' fees requested was reasonable and appropriate. Thetrial court also performed a lodestar calculation to cross-check the reasonablenessofthe percentage of fund award. This wasentirely proper. (Half, Ex. 1-11 at *33; emphasis added.) Theissue in Lealaois not whetherthe court used the percentage method exclusively(it didn't), but whether a court can use it to anchor the fee award. (Lealaosaid it couldn't.) The court in Half got it backwards. Lealao started with a lodestar calculation, using the percentage of the fund as a cross-check. 4. The Halfdecision erroneously claimsthat the holding in Consumer Privacy Cases, 175 Cal.App.4th 545 [96 Cal.Rptr.3d 127] (1st App. Dist. June 30, 2009), supports its decision that either the percentage-of-the-fund or the lodestar approach may be used as a starting pointto calculate a reasonable attorneys' fee. (See Half, Ex. 1-10, at *30-*31 for discussion.) In Consumer Privacy Cases, supra, 175 Cal.App.4th 545 the court explained that "Irlegardless of whether attorney fees are 9 See commentat page 28, infra, regarding footnote 8 in the Half decision (Ex. 1-12). 22 determined using the lodestar method or awarded based on a 'percentage-of-the-benefit' analysis under the commonfunddoctrine... [i]t is not an abuse of discretion to choose one method over another as long as the method chosenis applied consistently using percentage figures that accurately reflect the marketplace...." (Half, Ex. 1-10 at *30-*31, citing Consumer Privacy Cases, supra, 175 Cal.App.4th at 557-58 (internal citations omitted). The Consumer Privacy Casesrelied on by the Halfcourt support the exact opposite principle for which Halfcited it — the primacy of the lodestar/multiplier approach. Thetrial court then used a lodestar analysis to determine the base fee, and applied a multiplier to calculate the final award. "[T]he primary method for establishing the amountof 'reasonable' attorney fees is the lodestar method..." "Under certain circumstances, a lodestar calculation may be enhanced onthe basis of a percentage-of-the-benefit analysis.... This approach "anchorsthe trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awardedis notarbitrary..." Consumer Privacy Cases, supra, 175 Cal.App.4th at 556-57,citing Vitamin Cases, supra, 110 Cal.App.4th at 1052 (internal citations omitted). 5. The Halfcourt's reliance on Apple Computer, Inc. v. The Superior Court ofLos Angeles County, et al., 126 Cal.App.4th 1253 [24 Cal.Rptr.3d 818] (2d App. Dist. Feb. 17, 2005), is without justification. 23 The Halfcourt cites Apple Computer to support its holding. However, Apple Computer did not involve a calculation of a reasonable attorneys' fee. The issue was a defendant's attempt to disqualify a law firm from acting as class counsel. There is no discussion of Serrano IIT or Lealao. Indeed, Apple Computercites to federal!9 fee jurisprudence. Andalthough attorney fees awarded underthe commonfund doctrine are based on a "percentage- of-the-benefit" analysis, while those under a fee- shifting statute are determined using the lodestar method,"[t]he ultimate goal... is the award of a reasonable fee to compensate counselfor their efforts, irrespective of the method ofcalculation." Apple Computer, supra, at 1270, citing to Brytus v. Spang & Co., 203 F.3d 238, 247 (3d Cir. Feb. 7, 2000). 6. Half's assertion that Chavez v. Netflix, supra, supports its decision is based on a misunderstanding of Chavez. For example, in Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43 the court stated that "the Lealao court did not purport to mandate the use of one particular formula in class action cases. The methodthetrial court used here and that [was] discussed in Lealao are merely different ways of using the same data--the amount of the proposed award and the monetized value ofthe class benefits--to accomplish the same purpose: to cross- check the fee award against an estimate ofwhat the market would pay for comparablelitigation services rendered pursuantto a fee agreement...." 10 See Discussion, No. 14, page 31, infra, that federal fee jurisprudenceis not relevant. 24 (Half, Ex. 1-10 at *30; internal citations omitted.) The Halfcourt's assertions that Chavez made it clear that (1) the percentage-of-the-benefit methodology can become the anchor for an award of reasonable attorneys' fees, and (2) that the lodestar multiplier/approach can be used as a mere cross-check are based on a misreading of Chavez. Thetrial court in Chavez properly started its calculation with a lodestar determination, and afterward, it sought to use the percentage-of-the-fund approach for enhancing the lodestar amount. [The claim wasthatthe trial court] erred in establishing the multiplier by using as a benchmarkthe percentage of the fees awarded divided by a sum including both the class benefit and the amount of the fee award, and... Chavez, supra, 162 Cal.App.4th at 63 (emphasis added). The Halfcourt's conclusion of what wasat issue in Chavez, supra, at 162 Cal.App.4th at 65-66: It is not an abuse of discretion to choose one method over another as long as the method chosen is applied consistently using percentage figures that accurately reflect the marketplace. misunderstands Chavez's discussion.. Chavez does use the words "method" and "formula," but it is not referring to the methodology ofthe lodestar vs. the percentage approaches. The methodology being referred to in Chavez concerns howthe percentage-of-the-fund approach should be calculated for its use as an enhancementfactor. 25 To establish a benchmark for determining the enhanced lodestar amount, the court used the percentages that a hypothetical enhanced fee would represent of the sum of the fee plus the aggregate value of the benefits claimed by class members under the Original Agreement... Chavez, supra, 162 Cal.App.4th at 64-65. Chavez doesnot challenge Serrano III's primacy ofthe lodestar approach. The use of 33-1/3 percentis justified by the Halfcourt, citing to Chavez. However, the Chavez court relies on federal law, not California law. [From] Chavez v. Netflix, Inc., supra, 162 Cal.App.4th 43 ... ‘Empirical studies show that, regardless whether the percentage methodorthe lodestar method is used, fee awardsin class actions average around one-third of the recovery.’ [Citation.]" Ud. at p. 66, fn. 11...) (Half, Ex. 1-11 at *32.) The missinginternal citation in Halffor this Chavez quote is federal fee jurisprudence, Shaw v. Toshiba America Information Systems, Inc., 91 F. Supp. 2d 942, 972 (E.D. Tex., Beaumont Div., Jan. 28, 2000). 7. Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc., supra, does not support the Halfcourt's holding. The Halfcourt's citation to Consumer Cause for support is misplaced. [S]ee Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005) 127 26 Cal.App.4th 387, 397 [the common fund doctrine is "frequently applied in class actions when the efforts of the attorney for the named class representatives produce monetary benefits for the entire class"].... (Half, Ex. 1-10 at *31.) Common Cause was nota case involving the actual calculation of a reasonable attorneys' fee from a commonfund. It concerned whether an objector who succeedsin defeating the approval of a proposed class action settlementis entitled to an attorneys’ fee for his efforts. There was no discussion of SerranoIII or Lealao. Common Causestands for the uncontroversial proposition that the common fund doctrine is available for the awarding of reasonable attorneys’ fees to Class Counsel. The issue before the Halfcourt, however,is not the availability of the common fund doctrine; it is how fees are to be determined within the context of the creation of a common fund. 8. The Halfcourt's claim that Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224 [110 Cal.Rptr.2d 145] (6th App. Dist. July 31, 2001), supports its decisionis incorrect. Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th atp. 254 |"[c]ourts recognize two methods for calculating attorney fees in civil class actions: the lodestar/multiplier method and the percentage of recovery method"].) (Half, Ex. 1-10 at *31.) Wershba does not address the issue of the Serrano IT instruction on the primacy of the lodestar/multiplier approach. 27 Furthermore, the Wershba court wasnot relying on Serrano IIin makingthis statement but rather on a misreading of Chavez (see Discussion, No. 6, pages 24-26, supra), as well as federal! ! jurisprudence (namely Zucker v. Occidental Petroleum Corp., et al., 968 F.Supp. 1396, 1400 (C.D. Cal. June 4, 1997), cited in Wershba at 254), whichis not relevant. 9. The Halfcourt's claim that Serrano IIT supportsits holding that the percentage-of-the-fund approach can bethefirst step in calculating a reasonable attorneys’ fee is incorrect. The Supreme Court in Serrano even recognized the viability of the "percentage of the common fund" method... Half, Ex. 1-10 at *31, footnote 8. There is nothing in the entire footnoted 8 material about the percentage-of-the-recovery approach. The footnote recountsthat SerranoIII observed that the so-called common fund exceptionis grounded in equity. However,the availability of the common fund doctrine is a straw man issue. It is unrelated to the method to be used to calculate a reasonable attorneys’ fee once it is determinedthat there is an entitlement to a fee awarded from a common fund. 10. The Halfcourt's reference to Fox v. Hale & Norcross Silver Mining Co., 108 Cal. 475 [41 P. 328] (Aug. 6, 1895): "First approved bythis court in the early case of Fox v. Hale & Norcross §. M. Co. (1895) 108 Cal. 11 For a discussion of the Halfcourt's improperreliance on federal attorneys’ fee jurisprudence, see Discussion, No. 14, page 31, infra. 28 475 [41 P. 328] ... , the ‘common fund' exception has since been applied by the courts ofthis state in numerouscases.[Citations.]" (Serrano v. Priest, supra, 20 Cal.3d atp. 35.) (Half, Ex. 1-10 at *31 n.8), does not support its holding. Fox v. Hale is a pre-Serrano III decision. There is no dispute that in 1895, California courts could base attorneys' fee awards(albeit not in class action common fund recoveries) using the percentage-of-the-fund approach. The issue is what wasthis Court's instruction in Serrano II] about how reasonable attorneys' fee calculations must be madein future cases. 11. The Halfcourt's reference to Bell vs. Farmers Exchange, 115 Cal.App.4th 715 [9 Cal-Rptr.3d 544] (1st App. Dist. Feb. 9, 2004): [Slee Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 726 [9 Cal. Rptr. 3d 544] ["the court awardedto [class] counsel attorney fees in the amountof25 percent ofthe total damages fund recoveredfor the class" ].... (Half, Ex. 1-11 at *32), does not support the Halfcourt's holding. The quoted material is a citation to a statementbya trial court without any discussion of Serrano III or Lealao, or any of the other cases dealing with an award of reasonable attorneys' fees. Indeed, the quote from Bell is set out before there is any discussion oflegal principles. 29 12. Cundiffv. Verizon California, Inc., 167 Cal.App.4th 718 [84 Cal.Rptr.3d 377] (2d App. Dist. Oct. 16, 2008), does not support the Halfcourt's holding: It therefore is appropriate for the trial court to cross-check an award ofattorneys' fees calculated by one method against an award calculated by the other method in order to confirm whether the award is reasonable. (See ... Cundiffv. Verizon California, Inc. (2008) 167 Cal.App.4th 718, 724 [84 Cal. Rptr. 3d 377]... (Half, Ex. 1-11 at *33.) Cundiffheld that there was no common fund created. The court did not award a fee by calculating a percentage of the recovery. Cundiff does not provide legal reasoning to support the Halfcourt's holding. 13. Sutter Health Uninsured Pricing Cases, supra, 171 Cal.App.4th 495: Thetrial court followed a process similar to the one approved in Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495 [89 Cal. Rptr. 3d 615]. There, the Court of Appeal affirmed the trial court's order approving class counsel attorneys’ fees as a percentage of a common fund after a lodestar "'cross-checkto test the reasonablenessof[the] amount." (/d. at pp. 503, 512.).... The trial court here did not abuseits discretion in performing a lodestar calculation ... to cross-check the percentage of fund award. (Half, Ex. 1-11 at *35), should not support the Halfcourt's holding. The Sutter decision does not discuss Serrano III or Lealao. There is no claim that any 30 California appellate court decision supports the trial court's method. Sutter does not provide legal reasoning to support the Halfcourt's holding. 14. Finally, federal law regarding the calculation of reasonable attorneys’ fees is not relevantto this issue. It is a separate body of law with separate standards of class action attorneys’ fee jurisprudence. The Halfdecision improperly relies directly on federal attorneys' fee jurisprudence, as well as citations to cases relying on federal attorneys' fee jurisprudence!to support its holding. {Slee also Jn re Bluetooth Headset Products Liability Litigation (9th Cir. 2011) 654 F.3d 935....; Shaffer v. Continental Cas. Co. (9th Cir. 2010) 362 Fed. Appx. 627, 632....; Vizcaino v. Microsoft Corp. (9th Cir. 2002) 290 F.3d 1043, 1050... Fischel v. Equitable Life Assur. Society of U.S. (9th Cir. 2002) 307 F.3d 997, 1006.... (Half, Ex. 1-11 at *33 and *32, respectively.) These federal cases are not being addressedin this Petition. They are not relevant to California reasonable attorneys’ fee jurisprudence. The Halfcourt's holding makes no attempt to establish that there is no California controlling precedent on the issue of the calculation of reasonable attorneys’ fees. 12 Chavez, supra, cites Shaw v. Toshiba (see page 26, supra). Apple Computer, supra, cites to Brytus v. Spang (see page 24, supra). Wershba, supra, relied on Zucker v. Occidental Petroleum (see page 28, supra). 31 Ironically, on the issue of notice, the Halfdecision correctly states the necessary finding to support the use of federal law: California courts follow the federal rules for class action only in the absence of controlling state authority and only "look to Rule 23 for guidance where California precedentis lacking." (Half, Ex. 1-7 at *20; citations omitted.) On the attorneys' fee issue, the Ha/fcourt's decision ignores this essential criterion. The Halfcourt was not seeking to change California law and adopt federal practice. There is a whole body of California case law regarding class action attorneys’ fee jurisprudence. There is no lack of California precedent. Federal authorities are irrelevant. CONCLUSION Because the Halfdecision has created further disagreement and confusion about the proper methodology under Serrano III for the awarding of reasonable attorneys’ fees from class action common fund settlements, review by this Court is needed. Dated: December 8, 2014. Respectfully submitted, Jesapeue Wander Lawrence W. Schonbrun Attorney for Plaintiff-Appellant and Petitioner David Brennan 32 CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies that pursuant to Rule 8.504(d)(1) of the California Rules of Court, the attached Petition for Review contains 7,238 words of proportionally spaced Times New Roman 14-point type as recorded by the word count of the Microsoft Office 2007 word processing system,and is in compliance with the type-volumelimitations permitted by the rules of court. Counsel relies on the word count of the computer program used to prepare this Petition. Dated: December8, 2014 Lawrence W. Schonbrun Attorney for Plaintiff-Appellant and Petitioner David Brennan Post - 1 CERTIFICATE OF SERVICE I declare that: I am overthe age of 18 years and not party to the within action. I am employedin the law firm ofLawrence W. Schonbrun, whose business address is 86 Eucalyptus Road, Berkeley, California 94705, County ofAlameda. On December8, 2014, I caused to be served a copy of the following document: PETITION FOR REVIEW _x_ by mail on the below-namedpartiesin said action, in accordance with CCP § 1013, by placing a true and accurate copy thereof in a sealed envelope, with postage thereon fully prepaid, and depositing the same in the United States Mailin Berkeley, California, to the addresses set forth below: Kevin T. Barnes, Esq. Law Offices of Kevin T. Barnes 5670 Wilshire Blvd., Ste. 1460 Los Angeles, CA 90036 Tel: (323) 549-9100 Fax: (323) 549-0101 E-mail: Barnes@kbarnes.com Attorneysfor Plaintiffs Barry M. Appell, Esq. Mika M.Hilaire, Esq. Appell, Hilaire, Benardo LLP 15233 Ventura Blvd., Ste. 420 Sherman Oaks, CA 91403 Tel: (818) 788-2300 Fax: (818) 788-2464 E-mail: Mika@ahblegal.com Attorneysfor Plaintiffs M.Kirby C. Wilcox, Esq. Paul Hastings LLP 55 Second Street, 24th FI. San Francisco, CA 94105-3441 Tel: (415) 856-7000 Fax: (415) 856-7100 E-mail: KirbyWilcox@paulhastings.com Attorneysfor Defendants Judith M.Kline, Esq. Paul Hastings LLP 515 So. Flower St., 25th FI. Los Angeles, CA 90071 Tel: (213) 683-6000 Fax: (213) 627-0705 E-mail: JudyKline@paulhastings.com Attorneysfor Defendants Post - 2 Joseph Antonelli, Esq. Janelle Carey, Esq. Law Office of Joseph Antonelli 14758 Pipeline Ave., Ste. E Chino Hills, CA 91709 Tel: (909) 393-0223 Fax: (909) 393-0471 E-mail: JAntonelli@antonellilaw.com Attorneysfor Plaintiffs Clerk, Superior Court County of Los Angeles Stanley Mosk Courthouse 111 North Hill Street Los Angeles, CA 90012 Clerk, Court ofAppeal Second Appellate District 300 South Spring Street Second Floor, North Tower Los Angeles, CA 90013 I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on December8 , 2014, at Berkeley, California. VileVU Sandra Norris Post - 3 Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Appellant, No. B249253, 2014 Cal.App. LEXIS 1059 (2d App.Dist., Div. 7, Oct. 29, 2014) EXHIBIT 1 Page 1 2014 Cal. App. LEXIS 1059, * @ LexisNexis’ MARKLAFFITTEetal, Plaintiffs and Respondents, vy. ROBERT HALF INTER- NATIONALINC.et al., Defendants and Respondents, DAVID BRENNAN,Plaintiff and Appellant. B249253 COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATEDISTRICT,DI- VISION SEVEN 2014 Cal. App. LEXIS 1059 October 29, 2014, Opinion Filed SUBSEQUENT HISTORY: [*1] The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 21, 2014. PRIOR HISTORY: APPEAL from an order of the Superior Court of Los Angeles County, No. BC321317, Mary Strobel, Judge. DISPOSITION: Affirmed. SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY Plaintiff, on behalf of himself and other class mem- bers, settled a wage and hourclass action lawsuit against defendants. The trial court overruled the objections of a memberofthe class and approved the settlement, which included an award of attorney fees to class counsel of one-third of the settlement. (Superior Court of Los An- geles County, No. BC321317, Mary Strobel, Judge.) The Court of Appeal affirmed the order. The court held the class notice did not violate the class members’ due process rights. The notice complied with Cal. Rules of Court, rule 3.769, by apprising class members of the agreement concerning attorney fees and of the options open to dissenting class members. The trial court's cal- culation of attorney fees based on a percentage of the common fund was proper and the award was reasonable. The use of a percentage of 33.33 percent of the common fund was consistent ‘with, and in the range of, awards in other class action lawsuits. Moreover, the trial court properly performed a lodestar calculation to cross-check the reasonableness of the percentage of fund award, and it considered the proper lodestar multiplier factors in determining whether to apply a multiplier. Thetrial court did not abuse its discretion by using the hourly rates of the attorneys serving as class counsel, nor did its use of those rates constitute a de facto multiplier. In the absence of any of the recognized warning signs of collusion or other evidence of collusion, the court concluded the in- clusion of a clear sailing provision in the settlement agreement did not constitute a breach of fiduciary duty on the part of class counsel. (Opinion by Segal, J., with Woods, Acting P. J., and Zelon, J., concurring.) HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES (1) Parties § 6--Class Actions--Settlements--Federal Rules--Applicability.--Fed. Rules Civ.Proc., rule 23,28 US.C., does not control in California. As a general rule, California courts are not bound by the federal rules of procedure but may look to them and to the federal cases interpreting them for guidance or where California prec- edent is lacking. California courts have never adopted rule 23 as a proceduralstrait jacket. To the contrary,trial courts are urged to exercise pragmatism andflexibility in dealing with class actions. California courts follow the federal rules for class action only in the absence of con- trolling state authority and only look to rule 23 for guid- ance where California precedentis lacking. (2) Parties § 6--Class Actions--Settlements--Attorney Fees--Notice--Disclosures.--Cal. Rules of Court, rule 3.769, states the procedure for including an attorney fees provision in a class action settlement agreement and for giving notice of the final approval hearing on the pro- Exhibit 1-1 Page 2 2014 Cal. App. LEXIS 1059, * posed settlement. Under rule 3.769(b), any agreement, express or implied, that has been entered into with re- spect to the payment of attorney fees or the submission of an application for the approval of attorney fees must be set forth in full in any application for approval of the dismissal or settlement of an action that has been certi- fied as a class action. This rule protects class members from potential conflicts of interest with their attorneys by requiring the full disclosure ofall fee agreements in any application for dismissal or settlement of a class action. Under the California Rules of Court governing class ac- tions, notice of the final approval hearing must be given to the class members in the manner specified by the court. The notice must contain an explanation of the proposed settlement and procedures for class membersto follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objec- tions to the proposed settlement (rule 3.769(). (3) Statutes § 28--Construction--Language--Natural Reading.--Courts prefer a more natural reading of text to a less natural one, whether that text be found in a statute or a contract. (4) Parties § 6--Class Actions--Settlement--Attorney Fees--Common Fund Doctrine--Reasonableness.--The trial court's calculation of attorney fees in a settled class action based on a percentage of the common fund was proper and the award was reasonable, because the use of a percentage of 33.33 percent of the common fund was consistent with, and in the range.of, awards in other class action lawsuits, because the court properly performed a lodestar calculation to cross-check the reasonableness of the percentage of fund award, and because the court con- sidered the proper lodestar multiplier factors in deter- mining whether to apply a multiplier. {Cal. Forms of Pleading and Practice (2014) ch. 120, Class Actions, § 120.24; Cabraser, California Class Actions and Coordinated Proceedings (2014) ch. 15, § 15.02; 3 Kiesel et al., Matthew Bender Practice Guide: Cal. Pretrial Civil Procedure (2014) § 33.43.] (5) Costs § 13--Attorney Fees--Fee-shifting--Lodestar Method.--Thestarting point of every fee award must be a calculation of the attorney's services in terms of the time the attorney has expended onthe case. In so-called fee shifting cases, in which the responsibility to pay at- torney fees is statutorily or otherwise transferred from the prevailing piaintiff or class to the defendant, the pri- mary method for establishing the amount of reasonable attorney fees is the lodestar method. The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative multiplier to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results ob- tained, and the contingentrisk presented. (6) Parties § 6--Class Actions--Settlement--Attorney Fees--Common Fund Doctrine--Percentage of Fund.--Fee spreading occurs when a settlement or adju- dication results in the establishment of a separate or so-called common fund for the benefit of the class. Be- cause the fee awarded class counsel comes from this fund, it is said that the expense is borne by the benefi- ciaries. Percentage fees have traditionally been allowed in such commonfund cases, although the lodestar meth- odology mayalso be utilized in this context. Because the common fund doctrine rests squarely on the principle of avoiding unjust enrichment, attorney fees awarded under this doctrine are not assessed directly against the losing party (fee shifting), but come out of the fund established by the litigation, so that the beneficiaries ofthelitigation, not the defendant, bear this cost (fee spreading). (7) Parties § 6-Class Actions--Settlement--Attorney Fees-Common Fund Doctrine--Percentage of Fund.--Fees based on a percentage of the benefits are appropriate in large class actions when the benefit per class member is relatively low. Regardless of whether attorney fees are determined using the lodestar method or awarded based on a percentage-of-the-benefit analysis under the commonfund doctrine, the ultimate goal is the award of a reasonable fee to compensate counsel for their efforts, irrespective of the method of calculation. It is not an abuse of discretion to choose one method over another as long as the method chosen is applied consistently us- ing percentage figures that accurately reflect the market- place. The percentage of fund method survives in Cali- fornia class action cases. (8) Costs § 15~Attorney Fees--Common Fund Doc- trine--Lodestar Cross-check.--Although attorney fees awarded under the common fund doctrine are based on a percentage-of-the-benefit analysis, while those under a fee-shifting statute are determined using the lodestar method, the ultimate goal is the award of a reasonable fee to compensate counsel for their efforts, irrespective of the method of calculation. It therefore is appropriate for the trial court to cross-check an award of attorney fees calculated by one method against an award calcu- lated by the other method in order to confirm whether the award is reasonable. (9) Costs § 30--Attorney Fees--Documentation--Discretion.--California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel Exhibit 1-2 Page 3 2014 Cal. App. LEXIS 1059, * describing the work they have done and the court's own view of the number of hours reasonably spent. (10) Costs § 30--Attorney Fees--Documentation--Discretion.--The "bright line standard" is not the law in California. The trial court in each case determines how much information and docu- mentation the court needs in order to make a reasonable attorney fees award. (11) Costs § 30--Attorney Fees--Settlement Agree- ments--Reasonableness--Factors.--Even where the par- ties agree as to the amount of attorney fees in a settle- ment agreement, courts properly review and modify the agreed-upon fees if the amount is not reasonable. Thus, the judicial determination of reasonable attorney fees does not depend solely upon hourly rates and the number of hours devoted to the case. While these two factors are the starting point of every fee award, numerous other factors must also be considered, including the novelty and difficulty of the issues presented, the quality of counsel's services, the time limitations imposed by the litigation, the amountat stake, and the result obtained by counsel. (12) Parties § 6--Class Actions--Settlement--Clear Sailing Provisions--Collusion.--Collusion may not al- ways be evident on the face of a settlement, and courts therefore must be particularly vigilant not only for ex- plicit collusion, but also for more subtle signs that class counsel have allowed pursuit of their own self-interests and that of certain class membersto infect the negotia- tions. A few such signs are: (1) when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but class counsel are amply rewarded, (2) when the parties negoti- ate a clear sailing arrangementproviding for the payment of attorney fees separate and apart from class funds, which carries the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class, and (3) when the parties arrange for fees not awarded to revert to defendants rather than be added to the class fund. Clear-sailing clauses have not been held to be unlawful per se, but where the case involves a non-cash settlement award to the class, such a clause should be subjected to intense critical scrutiny. COUNSEL:Law Office of Lawrence W. Schonbrun and Lawrence W.Schonbrunfor Plaintiff and Appellant. Law Offices of Kevin T. Barnes, Kevin T. Barnes and Gregg Landerfor Plaintiffs and Respondents. Paul Hastings, Judith M. Kline and M. Kirby C. Wilcox for Defendants and Respondents. JUDGES: Opinion by Segal, J., with Woods, Acting P. J., and Zelon, J., concurring. OPINION BY:Segal, J. OPINION SEGAL,J."-- INTRODUCTION * Judge of the Los Angeles Superior Court, as- signed by the Chief Justice pursuant to article VI, section 6 ofthe California Constitution. Plaintiff Mark Laffitte, on behalf of himself and other class members, settled a class action lawsuit against defendants Robert Half International Inc., Robert Half of California, Inc., Robert Half Incorporated, and Robert Half Corporation doing business as RHC (collec- tively Robert Half or the Robert Half defendants) for $19 million. David Brennan, a memberofthe class, objected to the settlement. Thetrial court overruled his objections and approvedthe settlement, which included an award of attorneys’ fees [*2] to class counsel of one-third of the settlement, or approximately $6.3 million. Brennan ap- peals from the order approving the settlement and enter- ing final judgment, challenging both the class action set- tlement notice regarding the award of attorneys’ fees and the amountof attorneys’ fees awarded. Laffitte asks that we affirm the trial court's order. The Robert Half de- fendants state that the attorneys' fees issue does notaffect them directly because class counsel will receive their fees from the common fund the Robert Half defendants agreed to pay to settle the case, but they ask that we af- firm the order "in order to bring this lawsuit to closure." Weaffirm. FACTUAL AND PROCEDURAL BACKGROUND On September 10, 2004 Laffitte filed a wage and hour class action suit against Robert Half. The complaint alleged five causes of action based on violations of the Labor Code: misclassification of staffing professionals as exempt and failure to pay statutorily mandated wages, failure to provide adequate meal periods (premium wag- es), failure to provide rest periods, failure to furnish timely and accurate wage statements, and "waiting time" penalties. The complaint also alleged unfair business practices [*3] in violation of Business and Professions Code section 17200 et seq. On March 13, 2006 the trial court denied Robert Half's motion for summary judgmentor in the alternative Exhibit 1-3 Page 4 2014 Cal. App. LEXIS 1059, * for summary adjudication. On September 18, 2006 the court denied Robert Half's motion to strike the class al- legations, and granted Laffitte'’s motion for class certifi- cation with respect to the wage, wage statements, waiting time, and unfair business practices causes of action. The court denied Robert Half's subsequent motion for recon- sideration of the class certification order. The parties participated in a mediation. After a se- cond session of the mediation on June 18, 2012 Laffitte and the class representatives in two other class actions against Robert Half involving similar claims and allega- tions reached a settlementofthe three class actions.' 1 The two other class actions were Williamson v. Robert HalfInternational Inc. (Super. Ct. L.A. County, 2013, No. BC377930) and Apolinario v. Robert Half International Inc. (Super. Ct. L.A. County, 2013, No. BC455499). On September 5, 2012 the class representatives filed a joint motion for conditional certification of the class and preliminary approval of the settlement. The trial court, after relating the three class actions, [*4] granted the motion, conditionally certified the class, and prelim- inarily approved the settlement. The court also approved the proposed class notice and related materials, appoint- ed a settlement administrator, and scheduled a hearing for final approval on October 19, 2012. On November 13, 2012 the trial court granted the parties' ex parte ap- plication for an order amending the settlement agree- ment, class notice, and claim form. Among other things, the amended settlement agreement provided that Robert Half would pay a gross settlement amount of $19,000,000. Subject to court approval, the settlement agreement provided that the following payments would be made from the gross settlement amount: class counsel attorneys' fees of not more than $6,333,333.33 (33.33 percent of the gross settlement amount) and costs not to exceed counsel's actual costs, class representative pay- ments not to exceed $80,000, settlement administrator fees not to exceed $79,000, civil penalties owed to the California Labor and Workforce Development Agency, and applicable payroll taxes on the employees’ recovery. The amendedsettlement agreementalso included a "clear sailing" provision stating that class counsel would [*5] apply for their attorneys' fees “and Robert Half will not opposetheir request." 2 Clear sailing provisions "allow counsel for the plaintiff class (class counsel) to seek an award of attorney fees from the trial court, with the as- surance that defendant will not oppose the fee application if the amount sought is less than or equal to a specified dollar amount." (Ruiz v. Cal- ifornia State Automobile Assn. Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 598 [165 Cal.Rptr.3d 896]; see Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1323, fn. 7 [168 Cal. Rptr. 3d 40].) On January 28, 2013 Brennan objected to the pro- posed settlement. Relying in part on rule 23 of the Fed- eral Rules of Civil Procedure, Brennan made the fol- lowing objections: (1) the attorneys' fee request was ex- cessive; (2) "[mJoney to charity should not be a part of the Court's attorneys' fee award calculation"; (3) infor- mation necessary for class members to intelligently ob- ject to or comment on the proposed settlement was missing from the notice and the pleadings; (4) the clear sailing provision warranted the appointment of a class guardian; (5) the notice to the class was deceptive re- garding the responsibility for payment of attorneys’fees; (6) class counsel and counsel for Robert Half had not filed a report, as required by the amended settlement agreement; (7) the notice did not disclose that unclaimed funds would be donated to a charity of the Robert Half defendants’ choice; [*6] and (8) certain other provisions of the settlement were improper. On February 28, 2013 the class representatives and Robert Half filed a joint motion for final approval of the class action settlement and a response to Brennan's ob- jections. The class representatives reported that they had sent class notices to 3,996 class members and had re- ceived only two objections: an objection from Brennan and an "objection" that was actually a dispute over the amount the individual class member wasto receive. The class representatives also filed a motion for attorneys’ fees, costs, and class representative enhancements. The motion requested $6,333,333.33 in attorneys’ fees for class counsel, $127,304.08 in costs, $79,000 in settle- ment administrator expenses, and $80,000 in class rep- resentative enhancement payments. The class representa- tives explained that class counsel were requesting as at- tomeys’ fees one-third of the gross settlement, which constituted a common fund for the benefit of class members, and argued that this amount was reasonable and appropriate. Class counsel asserted that their hourly rates and number of hours worked werefair and reason- able and that the successful result, the difficulty [*7] of the issues in the case, the quality of their representation, the contingency risk, and the preclusion of other em- ployment justified a lodestar multiplier. In support of their motion for attorneys’ fees, class counsel submitted declarations from the attorneys in each of the three law firms serving as class counsel. Theat- torneys did not submit detailed time records. The decla- rations stated that Kevin T. Barnes, who served as lead counsel supervised and handledall aspects ofthelitiga- tion, worked 2,259.5 hours on the case at an hourly rate of $750, and his partner, Gregg Lander, worked 807.3 Exhibit 1-4 Page 5 2014 Cal. App. LEXIS 1059, * hours at an hourly rate of $600. Joseph Antonelli worked 709.3 hours on the case at an hourly rate of $750, and his partner, Janelle Carey, worked 14.4 hours at an hourly rate of $600. Finally, Mika Hilaire worked 423 hours on the case at her hourly rate of $500. Barnes determined that class counsel workeda total of 4,263.5 hours on the case (and anticipated working 200 hours on the appeal) and, using the hourly rate for each attorney, calculated that the total lodestar amount was $2,968,620 ($3,118,620 including the appeal). Class counsel re- quested a lodestar multiplier of between 2.03 to [*8] 2.13 for a total requested attorneys' fee award of $6,333,333.33. Bames also described the contentious nature of the litigation and summarized the work class counsel had performed: "The settlement that has been reachedis the product of tremendouseffort, and a great deal of expense by the parties and their counsel. The parties’ assessment of the matter is based on one of the mostheavily litigated cases I have ever been a part of and the extensive re- search andlitigation for the past 8 1/2 years. This litiga- tion included extensive written discovery, extensive law and motion practice, 68 depositions, three Motions for Summary Judgment, a Class Certification Motion, sub- sequent Reconsideration Motion and then another Mo- tion to Decertify, numerous experts, consultation with an economist regarding potential damage exposure and two full day mediations." On March 22, 2013 the trial court held a hearing on the motion for approval of the settlement and the motion for attorneys’ fees. The court stated in a tentative ruling that the requested fee amount “amounts to 33 1/3[] per- cent of the gross settlement amount, and is not an atypi- cal contingency agreementin a class action. The primary factor [*9] for determining whether an attorney fee award is fair is whether the fee bears a reasonable rela- tionship to the value of the attorney's work.” The court stated that the 4,263.5 attorney hours spent by class counsellitigating this action “is a fairly reasonable num- ber of hours to have billed on a class action matter that washeavily litigated for 8.5 years ... ." The court noted that "Class Counsel! billed $2,968,620 on this amount of time, based on hourly rates of $750/hour for Barnes and Antonelli, $600/hour for Lander and Carney, and $500/hour for Hilaire. ... This rate is justified by the high level of Class Counsel's experience in litigating wage and hour claims/class actions." The court stated that, "[b]ased on the reasonable number of hours billed and the legitimate hourly rate, Class Counsel's lodestar is $2,968,620." The court acknowledged Brennan's objec- tions to the proposed settlement but stated that rule 3.769 of the California Rules of Court, not rule 23 of the Fed- eral Rules ofCivil Procedure, governed the requirements of a class action settlement notice. The court stated that "[t]he Parties’ method of calculation of attorneys’ fees is supported under California law. The court in Lealao v. Beneficial California Inc. (2000) 82 Cal.App.4th 19, 27 [97 Cal. Rptr. 2d 797] approved of the use of a common fund whereby attorneys’ fees are calculated as a percent- age [*10] of the amount recovered.” During the hearing the court found that the class ac- tion notice "that was given fully complies with California law, with due process and is not misleading." The court also found that “the tasks that were performed by class counsel and the numberof hours that they spent on those tasks were reasonable and that ... [t]he hourly fees, if you're looking at lodestar, are within the range of whatis reasonable for this type of work in this community.” Nevertheless, the court also asked for further briefing on (1) "how the attorneys’ fees are to be allocated" among the three law firms serving as class counsel “and whether namedPlaintiffs have signed a fee sharing agreement"; (2) "the amount that is [in] controversy and how it is calculated, estimates as to realistic ranges of outcomes" if the case were to go to trial, “and whytherisks ofliti- gation make the settlement fair, reasonable and ade- quate"; and (3) support for a multiplier of two on “the lodestar figure." The court noted that someofthe state- ments in Barnes' declaration were "a bit conclusory," asked for further explanation about class counsel's state- ment that the case involved "novel and complex legal issues," [*11] and “asked for further briefing on the reasonable range of expected outcomes versus the set- tlement amount... ." Barnes subsequently submitted an 18-page supple- mental declaration responding to the court's questions and providing additional information regarding the work class counsel had performed during the eight and one-half years of the litigation. Barnes calculated, based on the average number of hours per week and the num- ber of workweeks of the class members, that "the total amount in controversy in the Laffitte class is approxi- mately $90,690,000 and the total amount in controversy in the Apolinario class is approximately $25,800.000." Barnes stated, however, "there were numerous risks in both cases related to both class certification and the mer- its," including loss of class certification in Laffitte, changes in the law “as to certification in exempt misclas- sification cases (making it much harder today to obtain and/or maintain class certification)," the United States Supreme Court's recent decision in Wal-Mart Stores, Inc. v. Dukes (June 20, 2011, No. 10-277) = US. _‘ [180 L.Ed.2d 374, 131 S.Ct. 2541] and California Supreme Court's decision in Harris v. Superior Court (2011) 53 Cal.4th 170 [135 Cal. Rptr. 3d 247, 266 P.3d 953] and decision to grant review in Duran v. U.S. Bank National Assn. (2012) 203 Cal.App.4th 212 [137 Cal. Rptr. 3d 391], review granted May 16, 2012 and affirmed [*12] Exhibit 1-5 Page 6 2014 Cal. App. LEXIS 1059, * by Duran v. U.S. Bank National Assn. (2014) 59 Cal. 4th 1 [172 Cal. Rptr. 3d 371, 325 P.3d 916]. Bames stated that, after applying a 70 percent class certification risk factor for the Laffitte class action and a 25 percent class certification risk factor for the Apolinario class action, and a 50 percent merits risk factor for both, "the total settlement exposure for the class claims is approximately $34,966,500," so that the $19,000,000 settlement repre- sented "54[] percent of the value of the total claim, which Plaintiffs believe is outstanding considering the risk of prevailing on class certification, prevailing on the merits, and maintaining any part of Plaintiffs' victory through appeal."* Barnes also provided further information and argument in support of a multiplier. Barnes concluded that "[a]ll this hard work and determination resulted in the settlement of $19,000,000. ... [T]he average Class Member award is over $4,300 and the highest award is over $48,000 [citation]. ... [f] ... The risks of this class action case were enormous. Litigating this wage and hour class action ... took between 4,263.5 and 4,463.5 attorney hours and involved litigation costs of $127,304.08 ... ." 3 Using the "70 [percent] chance of maintain- ing class certification in Laffitte" and "25 [per- cent] [*13] chance of obtaining class certifica- tion in Apolinario," class counsel calculated that the value of the two class actions was $69,933,000 ($63,483,000 + $6,450,000). Class counsel then reduced this figure by a "50 [per- cent] chance of prevailing on the merits," giving a total value of $34,966,500. Class counsel val- ued the Williamson class action at $0 because they "felt that there was virtually no chance of prevailing at the time of class certification and/or the merits" ofthat case. 4 Actually, the $19,000,000 settlement repre- sented approximately 16 percent (excluding any appellate risk) of the value of the total claim of $116,490,000 ($90,690,000 for Laffitte + $25,800,000 for Apolinario), because class coun- sel had already discounted the total value of the claim for the risk of prevailing on class certifica- tion and the merits. The trial court held another hearing on Brennan's objections on April 10, 2013. The trial court overruled Brennan's objections and concluded that it had “suffi- cient information at this point to determine that this is a fair and reasonable settlement." The court stated that “(t]he supplemental declaration from Mr. Barnes has addressed the court's question about how the [*14] at- tomeys fees are to be allocated between the firms repre- senting plaintiffs, whether the named plaintiffs have signed a fee sharing agreement, and addressed the re- quirement under the California Rules of Court that the terms of any attorneys fees agreement be set forth in full." The court also stated that it "received sufficient information to evaluate the strength of plaintiffs’ case, detailed information about the factual and legal risks involved, the valuation on a claim by claim basis and the discount factor that plaintiff[s] applied in coming up with a reasonable range of outcomes." The court further acknowledged receipt of "significant information on the risk, expense, complexity and likely duration of further litigation; the risk of maintaining a class action status throughouttrial; the extent of discovery completed; the experience and views of counsel; and the views of the class members." The court found that "[t]hese three ac- tions have a lengthy procedural history including one class certification, a motion to decertify in another case, a class certification not yet having been granted, [and] the uncertainties introduced by case law in this area ... throwing into significant doubt the maintenance [*15] of the certification ... ." Turning to the amount of attorneys’ fees, the court stated it "considers in this case that there is a contingency case, and so I do a double check onthe attorneys fees by looking at the lodestar amount. I do believe I have suffi- cient information on the numberof hours that were pre- sent and that the hourly rates charged therefore were within the norm and not overstated. Given the lodestar, I then also find I have information in the record which supports the multiplier that would be applied to lodestar if you're looking at a strict lodestar calculation, which we're not, we're looking at a contingency calculation, the amount of the contingencyis not unreasonable. I'm con- sidering the novelty and difficulty of the questions in- volved, the skill displayed in presenting them, the extent to which the litigation precluded other employment by the attorneys and the inherent risk whenever there is a fee award that is contingent. Onthatbasis, I am granting final approval." The trial court granted final approval of class action settlement and awarded $6,333,333.33 in attorneys' fees, $127,304.08 in costs, $79,000 in settle- ment administrator expenses, and $80,000 in [*16] class representative enhancement payments. Laffitte served a notice of ruling on the parties on April 12, 2013. Brennan timely filed a notice of appeal on June 10, 2013. DISCUSSION Brennan argues that the notice to the class members denied them due process because the nature and timing of the settlement approval procedure set forth in the no- tice was unfair, and because the language in the notice describing a class member's financial responsibility for attorneys’ fees was misleading. Brennanalso argues that, in reviewing the class counsel's request for attorneys’ fees, the trial court erred by using the percentage of fund Exhibit 1-6 Page 7 2014 Cal. App. LEXIS 1059, * method and then made mistakes when performing lode- star calculations. Finally, Brennan contends that class counsel breached their fiduciary duty to the class mem- bers by including a collusive clear sailing provision in the amendedsettlement agreement. A. The Class Notice Did Not Violate the Class Members' Due Process Rights 1. Timing ofObjections The class notice describing the preliminari- ly-approved settlement included the proposed attorneys' fees award for class counsel, a schedule for final approv- al, and the procedure for making objections. The notice stated: "Class [*17] Counsel, consisting of Law Offices of Kevin T. Barnes, Law Office of Joseph Antonelli, and Appell { Hilaire | Benardo LLP, will seek approval from the Court for the payment in an amount not more than $6,333,333.33 for their attorneys’ fees in connection with their work in the Actions, and an amount not more than $200,000 in reimbursement of their actual litigation ex- penses that were advanced in connection with the Ac- tions. Class Counsel's attorneys’ fees and litigation ex- penses as approved by the Court will be paid out of the Gross Settlement Amount." The trial court did not re- quire class counsel to file, and they did notfile, their motion for attorneys' fees until February 28, 2013, which was after the January 28, 2013 deadline stated in the no- tice for class membersto file their objections. Brennan argues that requiring class membersto file objections to the proposed settlement and request for attorneys' fees before class counsel filed their motion for attorneys' fees was a violation of due process and a breach of fiduciary duty. Brennan asserts that the state- ment in the notice that class counsel would request not more than $6,333,333.33 did not give the class members sufficient [*18] information to evaluate whether to ob- ject to the request. In support of his contention Brennan relies on Federal Rules ofCivil Procedure, rules 23 (rule 23) and 54 (rule 54) (28 U.S.C.),° and the Ninth Circuit's opinion in In re Mercury Interactive Corp. Securities Litigation (9th Cir. 2010) 618 F.3d 988, 993-995, 5 Rule 23(h) provides: “In a certified class ac- tion, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply: [{] (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served onall parties and, for motions by class counsel, directed to class members in a reasona- ble manner. [{] (2) A class member, or a party from whom paymentis sought, may object to the motion. [{] (3) The court may hold a hearing and must find the facts andstate its legal conclusions under Rule 52(a). [{] (4) The court may refer is- sues related to the amount of the award to a spe- cial master or a magistrate judge, as provided in Rule 54(d)(2)(D)." Rule 54(d)(2) provides in part: "Costs; At- torney's Fees. [{] ... [§] (2) Attorney's Fees. [] (A) Claim to Be’ by Motion. A claim for attor- ney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees [*19] to be proved attrial as an element of damages. [J] (B) Timing and Con- tents of the Motion. Unless a statute or a court order provides otherwise, the motion must: [{] (i) be filed no later than 14 days after the entry of judgment; [{] (ii) specify the judgment and the statute, rule, or other grounds entitling the mo- vant to the award;[{] (iii) state the amount sought or provide a fair estimate of it; and [{] (iv) dis- close, if the court so orders, the terms of any agreement about fees for the services for which the claim is made." Under rule 23 class counsel must file a motion for attorneys' fees prior to the time class members mustfile objections to the settlement (rule 23(h)(1)-(4)), and the motion mustinclude not only the settlement agreement's provisions but also the actual amount sought or a “fair estimate" (rule 54(d)(2)(B)(iii)). In Mercury the Ninth Circuit, interpreting rule 23(h), held that, with respect to the timing of a motion for attorneys' fees, "a schedule that requires objections to be filed before the fee motion itself is filed denies the class the full and fair opportunity to examine and oppose the motion that Rule 23(h) con- templates." (in re Mercury Interactive Corp. Securities Litigation, supra, 618 F.3d at p. 995.) (1) Rule 23 does not control in California. "As a generalrule, California courts are not bound bythe [*20] federal rules of procedure but may look to them and to the federal cases interpreting them for guidance or where California precedent is lacking. [Citations.} California courts have never adopted Rule 23 as ‘a proceduralstrait jacket. To the contrary, trial courts [are] urged to exer- cise pragmatism and flexibility in dealing with class ac- tions.’ [Citations.]" (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 239-240 [110 Cal. Rptr. 2d 145]; see Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 970, fn. 16 [124 Cal. Rptr. 376] ["[w]e note the obvious: Rule 23, as such, does not bind California courts"].) California courts follow the federal rules for class action only in the absence of controlling state au- thority and only "look to Rule 23 for guidance where California precedent is lacking." (Los Angeles Gay & Exhibit 1-7 Page 8 2014 Cal. App. LEXIS 1059,* Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 301, fn. 7 [125 Cal. Rptr. 3d 169]; see Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1118 [245 Cal. Rptr. 658, 751 P.2d 923] ["in the absence of controlling state authority, California courts should uti- lize the procedures of rule 23"]; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 872 [97 Cal. Rptr. 849, 489 P.2d 1113] [trial courts, in the absence of controlling California authority, [should] utilize the class action proceduresofthe federal rules"].)° 6 The cases cited by Brennan contain similar statements. (See, e.g., Lealao v. Beneficial Cali- fornia, Inc., supra, 82 Cal.App.4th at p. 38 [when there is no relevant California precedent on point, federal precedent should be consulted"); Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801, fn. 7 [56 Cal. Rptr. 2d 483] ["[iJn the absence of California law on the subject, Califor- nia courts look to federal authority"].) (2) California precedent and authority governing court approval of class action [*21] settlements and attorneys’ fees applications, however, are not lacking. Rule 3.769 of the California Rules of Court states the procedure for including an attorneys’ fees provision in a class action settlement agreement and for giving notice of the final approval hearing on the proposed settlement. Under rule 3.769(b) of the California Rules of Court, "[alny agreement, express or implied, that has been en- tered into with respect to the payment ofattorney's fees or the submission of an application for the approval of attorney's fees must be set forth in full in any application for approval of the dismissal or settlement of an action that has been certified as a class action." This rule "pro- tect[s] class members from potential conflicts of interest with their attorneys by requiring the full disclosure of all fee agreements in any application for dismissal or set- tlement of a class action." (Mark v. Spencer (2008) 166 Cal.App.4th 219, 223 [82 Cal. Rptr. 3d 569].) “Under the California Rules of Court governing class actions, ‘notice of the final approval hearing must be given to the class members in the mannerspecified by the court. The notice must contain an explanation of the proposed set- tlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the [*22] proposed settlement.' (Cal. Rules of Court, rule 3.769(f).)" (Litwin v. iRenew Bio Energy Solutions, LLC (2014) 226 Cal.App.4th 877, 883 [172 Cal. Rptr. 3d 328]; accord, Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1390 [113 Cal. Rptr. 3d 510].) The notice given to the class members complied with California Rules of Court rule 3.769 by apprising them of the agreement concerning attorneys’ fees. The notice told the class members that class counsel could receive up to $6.3 million in attorneys' fees. The notice also advised the class members of the procedures for objecting to the proposed settlement and appearing at the settlement hearing, where they could present their objec- tions to any aspect of the settlement, including the amountof attorneys’ fees to be awarded to class counsel. Such objections could include an objection to the amount of information available regarding class counsel's attor- neys' fees and, if appropriate, a continuance of the hear- ing to obtain more information (which is exactly what Brennan did). (See Cal. Rules of Court, rule 3.769()); Litwin v. iRenew Bio Energy Solutions, LLC, supra, 226 Cal.App.4th at p. 883 ["[p}rocedural due process requires that affected parties be provided with ‘the right to be heard at a meaningful time and in a meaningful manner]; In re Vitamin Cases (2003) 107 Cal.App. 4th 820, 829 [132 Cal. Rptr. 2d 425] ["[t]he primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner," but "[i]t does not guarantee any particular procedure but is rather an ‘elusive concept,’ {*23] requiring only “notice reasonably calculated to apprise interested parties of the pendency of the action affecting their property interest and an opportunity to present their objections"].) The notice in this case "fairly apprise[d] the class members of the terms of the proposed compromise and of the options open to dis- senting class members." [Citation.]" (Cho v. Seagate Technology Holdings, Inc. (2009) 177 Cal.App.4th 734, 746 [99 Cal. Rptr. 3d 436].) The notice did not violate the class members’ due processrights. 2. Responsibilityfor Attorneys' Fees The notice of settlement states: "The Court will also be asked to approve Class Counsel's request for attor- neys' fees and costs and the class representative pay- ments. A Class Member whodoes not request exclusion from the settlement may, but is not required to, enter an appearance through counsel. As a Class Member, you will not be responsiblefor the payment ofattorneys'fees .. unless you retain your own counsel, in which event you will be responsible for your own attorneys'fees and costs." (Italics added.) Brennan argues that the statement "you will not be responsible for ... attorneys' fees" is de- ceptive and misleading because class counsel were to receive their attorneys' fees from the common fund and each class member [*24] is economically responsible for his or her share of the attorneys’ fees award out of the gross settlement amount. Brennan also argues that the phrase “you will be responsible for your own attorney's fees" is "(1) wrong as a matter of law; and (2) had the effect of discouraging class members from seeking the assistance of their own counsel." Exhibit 1-8 Page 9 2014 Cal. App. LEXIS 1059, * (3) When the "settlement agreementis read in its en- tirety and placed into context" Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 119 [162 Cal. Rptr. 3d 769]), the meanings of these phrases are straightfor- ward and not misleading. (See People ex rel. Lockyerv. RJ. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 5327 [132 Cal. Rptr. 2d 151] [phrase in settlement agreement "reasonably read in context"].) The reasonable interpretation of these provisions is that attorneys’ fees for class counselare part of the settlement amount. (See Kurtin v. Elieff (2013) 215 Cal.App.4th 455, 471-472 [155 Cal. Rptr. 3d 573] ["courts prefer a more natural reading of text to a less natural one, whether that text be found in a statute ... or a contract"].) A class memberwill not be individually billed and obligated to pay for class counsel's fees. If, however, the class memberchooses to retain an attorney to object to some aspectofthe settle- ment, the class member will be responsible for paying that attorney. Brennan also argues that the "misinformation" about responsibility for attorneys' fees "is compounded by the (*25] fact that the Notice failed to advise class mem- bers that they even had a right to object to Class Coun- sel's attorneys’ fee request." The notice, however, states: “If you are dissatisfied with any of the terms of the Set- tlement you may object to the Settlement." The notice also states: "The Court will hold a final approval hearing ... to determine whether the Settlement should befinally approved as fair, reasonable, and adequate. The Court will also be asked to approve Class Counsel's request for attorneys’ fees and costs and the Class Representative payments. ..." The notice advises the class members that settlement will be reduced by "Class Counsel's fees not to exceed $6,333,333.33 ... ." The notice, read reasonably and considered in its entirety, sufficiently advises class members of the amount of attorneys' fees class counsel were requesting and of the class members'right to object to the request. B. The Trial Court's Methodfor Calculating Attorneys’ Fees Was Proper and the Award Was Reasonable (4) Brennan argues that the trial court erred by cal- culating the amount of class counsel's attorneys' fees based on a percentage of the common fund, rather than the lodestar method. He [*26] cites the statement in Lealao v. Beneficial California, Inc, supra, 82 Cal.App.4th 19 that the "primary method for establishing the amount of ‘reasonable’ attorney fees is the lodestar method." (/d. at p. 26.) While Brennanis correct that, as a generalrule, the lodestar method is the primary method for calculating attorneys’ fees, the percentage approach maybe proper where, as here, there is a common fund. 1. Standard ofReview We review an award ofattorneys' fees in a class ac- tion settlement under an abuse of discretion standard. (Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 819 [169 Cal. Rptr. 3d 131]; Heritage Pacific Fi- nancial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1004 [156 Cal. Rptr. 3d 26].) "The ‘experiencedtrial judge is the best judge of the value of professional ser- vices rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong[‘]"--meaning that it abused its discretion. [Cita- tions.]' [Citation.] '""[T]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason."" [Citations.]" [Citation.] ... We defer to the trial court's discretion “because of its ‘superior under- standingofthe litigation andthe desirability of avoiding frequent appellate review of what essentially are factual matters.’ [Citation.]" [Citation.]' [Citation.}" (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249 [166 Cal. Rptr. 3d 676]; accord, Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1329 [__ Cal.Rptr.3d___]; Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 159 [139 Cal. Rptr. 3d 880].) The "[flees approved [*27] by the trial court are presumed to be reasonable, and the objectors must show error in the award." (Consumer Privacy Cases (2009) 175 Cal.App. 4th 545, 556 [96 Cal. Rptr. 3d 127]; see Dunk v. FordMotor Co., supra, 48 Cal.App.4th at p. 1809.) 2. Percentage ofthe Common Fund (5) In Lealao v. Beneficial California, Inc., supra, 82 Cal.App.4th 19 the court stated that "[t}he primacy of the lodestar method in California was established in 1977 in Serrano [v. Priest (1977)] 20 Cal.3d 25 [141 Cal. Rptr. 315, 569 P.2d 1303]. ... [OJur Supreme Court de- clared: The starting point of every fee award ... must be a calculation of the attorney's services in terms of the time he has expended on the case."(/d. at p. 26.) The court added that "[i]n so-called fee shifting cases, in which the responsibility to pay attorney fees is statutorily or otherwise transferred from the prevailing plaintiff or class to the defendant, the primary method for establish- ing the amount of ‘reasonable’ attorney fees is the lode- star method. The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingentrisk presented. [Citation.]" [*28] 7’ (/bid.) 7 "(T]he lodestar is the basic fee for compara- ble legal services in the community; it may be Exhibit 1-9 Page 10 2014 Cal. App. LEXIS 1059,* adjusted by the court based on factors including ... (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employmentby the at- torneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjust- ment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services." (Graham v. Daim- lerChrysler Corp. (2004) 34 Cal.4th 553, 579 [21 Cal. Rptr. 3d 331, 101 P.3d 140]; see Chodos v. Borman (2014) 227 Cal.App.4th 76, 92 [173 Cal. Rptr. 3d 266].) (6) The court in Lealao was discussing the circum- stances in whichtrial courts could use the percentage of fund method, rather than the lodestar method, to calcu- late the amountof attorneys' fees to award to class coun- sel. The court explained that "[flee spreading occurs whena settlement or adjudication results in the estab- lishment of a separate or so-called common fundfor the benefit of the class. Because the fee awarded class coun- sel [*29] comes from this fund, it is said that the ex- pense is borneby the beneficiaries. Percentage fees have traditionally been allowed in such common fund cases, although, as will be seen, the lodestar methodology may also be utilized in this context." (Lealao v. Beneficial California, Inc., supra, 82 Cal.App.4th at p. 26.) The court noted that, "[b]ecause the common fund doctrine ‘rest[s] squarely on the principle of avoiding unjust enrichment’ [citations], attorney fees awarded underthis doctrine are not assessed directly against the losing party (fee shifting), but come out of the fund established by the litigation, so that the beneficiaries of the litigation, not the defendant, bear this cost (fee spreading). Under fed- eral law, the amount of fees awarded in a common fund case may be determined undereither the lodestar method or the percentage-of-the-benefit approach [citation], alt- hough, about a decade ago, as the Ninth Circuit then noted, there commenced a ‘ground swell of support for mandating the percentage-of-the-fund approach in com- mon fund cases.‘ [Citation.] Prior to 1977, when the Cal- ifornia Supreme Court decided Serrano [v. Priest], su- pra, 20 Cal.3d 25, California courts could award a per- centage fee in a common fund case. [Citation.] After Serrano ... , it is not clear whether [*30] this may still be done." Ud. at p. 27.) (7) Subsequent judicial opinions have madeit clear that a percentage fee award in a common fund case "may still be done." For example, in Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43 [75 Cal. Rptr. 3d 413] the court stated that "the Lealao court did not purport to mandate the use of one particular formula in class action cases. The methodthe trial court used here and that [was] discussed in Lealao are merely different ways of using the same data--the amount of the proposed award and the monetized value of the class benefits--to accomplish the same purpose: to cross-check the fee award against an estimate of what the market would pay for comparable litigation services rendered pursuant to a fee agreement. [Citation.]" (Ud at p. 65.) Therefore, "fees based on a percentage ofthe benefits are in fact appropriate in large class actions when the benefit per class member is rela- tively low ... ." Ud. at p. 63.) In Consumer Privacy Cases, supra, 175 Cal.App.4th 545 the court explained that "[rjegardless of whether attorney fees are determined using the lodestar method or awarded based on a ‘percentage-of-the-benefit' analysis under the common fund doctrine, "[t}he ultimate goal ... is the award ofa 'reasonable' fee to compensate counsel for their efforts, irrespective of the method of calcula- tion." [Citations.]' [*31] [Citation.] It is not an abuse of discretion to choose one method over another as long as the method chosen is applied consistently using percent- age figures that accurately reflect the marketplace.[Cita- tion.]" Ud. at pp. 557-558; accord, Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at pp. 65-66; see Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 397 [25 Cal. Rptr. 3d 514] [the commonfund doctrineis "frequently applied in class actions when the efforts of the attorney for the named class representatives produce monetary benefits for the entire class"]; Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 254 ["[clourts recognize two meth- ods for calculating attorney fees in civil class actions: the lodestar/multiplier method and the percentage of recov- ery method"].)* The percentage of fund method survives in California class action cases, andthe trial court did not abuseits discretion in using it, in part, to approve the fee request in this class action. 8 The Supreme Court in Serrano even recog- nized the viability of the “percentage of the common fund" method. The court observed that "the so-called ‘common fund’ exception to the American rule regarding the award of attorneys fees (i.e., the rule set forth in section 1021 ofour Code of Civil Procedure), is grounded in ‘the historic power of equity to permit the trustee of a fund or property, or a party preserving or recov- ering a fund for the benefit [*32] of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund of property it- self or directly from the other parties enjoying the benefit.’ [Citation.] [{] First approved by this Exhibit 1-10 Page 11 2014 Cal. App. LEXIS 1059, * | court in the early case of Fox v. Hale & Norcross S. M. Co. (1895) 108 Cal. 475 [41 P. 328] ... , the ‘common fund' exception has since been applied by the courts of this state in numerouscases. [Ci- tations.]" (Serrano v. Priest, supra, 20 Cal.3d at p. 35.) Finally, contrary to Brennan's assertion, the trial court's use of a percentage of 33 1/3 percent of the com- monfund is consistent with, and in the range of, awards in other class action lawsuits. In Chavez v. Netflix, Inc., supra, 162 Cal.App.4th 43 the court held that attorneys' fees of 27.9 percent of the class benefit awarded was "not out of line with class action fee awards calculated using the percentage-of-the-benefit method: ‘Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.’ [Citation.]" Ud. at p. 66, fn. 11; see Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 726 [9 Cal. Rptr. 3d 544] ("the court awarded to [class] counsel attorney fees in the amount of 25 percent of the total damages fund recov- ered for the class"]; Fischel v. Equitable Life Assur. So- ciety of US. (9th Cir. 2002) 307 F.3d 997, 1006 [recog- nizing "a 25 percent ‘benchmark’ in percent- age-of-the-fund cases that can be ‘adjusted upward or downward to (*33] account for any unusual circum- stances involvedin [the] case"'].) 3. Lodestar Cross-check (8) Thetrial court did not use the percentage of fund method exclusively to determine whether the amount of attorneys’ fees requested was reasonable and appropriate. The trial court also performed a lodestar calculation to cross-check the reasonableness of the percentage of fund award. This was entirely proper. "[A]lthough attorney fees awarded under the common fund doctrine are based on a ‘percentage-of-the-benefit' analysis, while those under a fee-shifting statute are determined using the lodestar method, ‘[t]he ultimate goal ... is the award of a "reasonable" fee to compensate counsel for their efforts, irrespective of the method of calculation.’ [Citations.]" (Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1270 [24 Cal. Rptr. 3d 818].) It therefore is appropriate for the trial court to cross-check an award of attorneys' fees calculated by one method against an award calculated by the other method in order to confirm whether the award is reasonable. (See Con- sumer Privacy Cases, supra, 175 Cal.App.4th at p. 557; Cundiff v. Verizon California, Inc. (2008) 167 Cal.App.4th 718, 724 [84 Cal. Rptr. 3d 377]; see also In re Bluetooth Headset Products Liability Litigation (9th Cir. 2011) 654 F.3d 935, 944, 945 (Bluetooth) ["we have also encouraged courts to guard against an unreasonable result by cross-checking their calculations against a se- cond method," and "the lodestar method can ‘confirm that a percentage of recovery [*34] amount does not award counsel an exorbitant hourly rate]; Shaffer v. Continental Cas. Co. (9th Cir. 2010) 362 Fed. Appx. 627, 632 [district court properly "used the lodestar method to cross-check the percentage method"]; Viz- caino v. Microsoft Corp. (9th Cir. 2002) 290 F.3d 1043, 1050 [district court did not abuse its discretion in "ap- ply[ing] the lodestar method as a cross-check ofthe per- centage method" because "the lodestar may provide a useful perspective on the reasonableness of a given per- centage award"].) (9) Brennan argues that, in connection with the court's lodestar calculations, class counsel did not submit detailed attorney time records. Such detailed time rec- ords, however, are not required. "It is well established that ‘California courts do not require detailed time rec- ords, andtrial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. [Citations.]}' [Citations.]" (Syers Prop- erties II, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698-699 [172 Cal. Rptr. 3d 45]6; Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at p. 64 [detailed timesheets are not required of class counsel to support fee awards in class action cases"].) The trial court did not abuse its discretion by relying on the hours worked and hourly rates provided by each of the class attorneys, and the description of the work the attorneys performed, in cal- culating a lodestar cross-check on [*35] the award. Thetrial court followed a process similar to the one approved in Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495 [89 Cal. Rptr. 3d 615]. There, the Court of Appeal affirmed the trial court's or- der approving class counsel attorneys' fees as a percent- age of a common fund after a lodestar "'cross-check to test the reasonableness of [the] amount." (/d. at pp. 503, 512.) The court observed that "several law firms worked for class plaintiffs and all submitted declarations attest- ing to the hours worked and hourly rates of the various specific attorneys who worked on this case. Most of the- se declarations were summaries and ... the lead firm ... did not submit hourly timesheets. [§] Courts have held that such detail is not required. [Citations.] We see no reason why [the trial court] could not accept the declara- tions of counsel attesting to the hours worked, particu- larly as [the court} wasin the best position to verify those claims by reference to the various proceedings in the case." (Id. at p. 512.) Thetrial court here did not abuse its discretion in performing a lodestar calculation based on the declarations of class counsel to cross-check the percentage of fund award. 4. Lodestar 2.13 Multiplier Exhibit 1-11 Page 12 2014 Cal. App. LEXIS 1059,* Class counsel's proposed lodestar was $2,968,620 without an appeal and $3,118,620 [*36] including an appeal. Class counsel asked the court to apply a multi- plier of 2.02 to 2.13 to the lodestar cross-check to sup- port the total fee request of $6,333,333.33. Brennan acknowledgesthat "[mJultipliers can range from 2 to 4 or even higher." (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 255; accord, In re Lugo (2008) 164 Cal.App.4th 1522, 1546, 80 Cal. Rptr. 3d 521; see Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at p. 66 {multiplier of 2.5 was not “out of line with prevailing case law"].)’ He argues, however, that the trial court erred in applying the multiplier because the court did not have sufficiently detailed attorney time records. Brennan argues that he "seeks to establish a bright-line standard so that class action attorneys who do not submit suffi- cient evidence to allow the court to ‘carefully compile the time spent,’ ‘carefully review attorneys’ documentation of hours,' and ‘thoroughly review fee applications’ to deter- mine a reasonable lodestar cannot be awarded an en- hancementto the lodestar." (Fn. and underscoring omit- ted.) 9 Eventhe authority Brennan relies on, Judge Richard Posner, has acknowledged that “[t]he need for such [a multiplier] adjustmentis partic- ularly acute in class action suits." (Matter ofCon- tinental Illinois Securities Litigation (7th Cir. 1992) 962 F.2d 566, 569.) (10) As noted, the "bright line standard" is not the law in California. The trial court in each case determines how much information and documentation the [*37] court needs in order to make a reasonable attorneys’ fees award. (See G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 620 [110 Cal. Rptr. 3d 559] [trial court did not abuse its discretion in choosing “to accept the declaration of [defendant's] attorney as sufficient proof of the attor- ney's hourly rate, the time spent, and the reasonableness of the time spent"].) Moreover, the trial court considered the proper lodestar multiplier factors in determining whether to apply a multiplier, including the difficulty of the issues in this case, the skill of class counsel, the con- tingent nature of the case, and the preclusion of other employment. (See Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 579, Chodos v. Borman, supra, 227 Cal.App.4th at p. 92.) Even where, unlike here, the trial court fails to give any explanationfor its selection of the multiplier, such a failure does not justify reversal. (Taylor v. Nabors Drilling USA, LP, supra, 222 Cal.App.4th at p. 1249.) "In reviewing a challenged award of attorney fees and costs, we presume that the trial court considered all appropriate factors in selecting a multiplier and applying it to the lodestar figure. [Cita- tion.] This is in keeping with the overall review standard of abuse of discretion, which is found only where no reasonable basis for the court's action can be shown.[Ci- tation.]' [Citations.]" Ud. at pp. 1249-1250.) The use of a multiplier of 2.13 was not an abuse of discretion. Brennan [*38] contends the trial court's use of 2012 hourly rates “for work done between 2005 and 2011 amounted to a de facto multiplier." Brennan's con- tention is based on a misreading of the record. Thetrial court did not mistakenly apply 2012 hourly rates to work performed in prior years. Thetrial court determined that the hourly rates for the attorneys who workedon the case were reasonable for all years of the litigation. And the trial court had ample basis for making that determination, including evidence of hourly rates from 2002 to 2012. Barnes’ declaration included a report based on a survey by the National Law Journal showing hourly rates for 2002 ranging from $500 to $850. The supporting decla- ration of Richard M. Pearl, an expert on hourly rates of attorneys’ fees in California, included a review of hourly rates approved by California courts ranging from $750 to $875. He also reported the result of surveys for 2009 showing hourly rates ranging from $775 to $950. The trial court did not abuseits discretion by using the hourly rates of the attorneys serving as class counsel, nor did the court's use ofthose rates constitute a de facto multiplier. (11) Brennan also asserts that "[t]he awarding of {*39] any multiplier, much less a multiplier that com- pensated each attorney's hour at $1,485.65, constituted a basic violation of the common fund doctrine," citing Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128 [12 Cal. Rptr. 3d 737]. Garabedian does not prohibit the use of a multiplier. The court in Garabedian held that, "[e]ven where the parties agree as to the amount ofattorney fees in ... a settlement agreement, courts properly review and modify the agreed-upon fees if the amountis not reasonable." (/d. at p. 127.) Thus, "the judicial determination of 'reasonable' attorney fees ... does not depend solely upon hourly rates and the number of hours devoted to the case. While these two factors are ‘the starting point of every fee award’ [citation], numerous other factors must also be consid- ered, including the novelty and difficulty of the issues presented, the quality of counsel's services, the time lim- itations imposed by the litigation, the amount at stake, and the result obtained by counsel. [Citations.]" (City of Oakland v. Oakland Raiders (1988) 203 Cal.App.3d 78, 83 [249 Cal. Rptr. 606]; see Center for Biological Di- versity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616 [115 Cal. Rptr. 3d 762] {"[alfter making the lodestar calculation, the court may augment or diminish that amount based on a number offactors specific to the case, including the novelty and difficulty of the issues, the attorneysskill in presenting the issues, the extent to which the [*40] case precluded the attor- neys from accepting other work, and the contingent na- Exhibit 1-12 Page 13 2014 Cal. App. LEXIS 1059,* ture of the work"].) The fact that the multiplier applied may have resulted in an effective increase in the hourly rate does not, without more, establish that the attorneys’ fees award was unreasonable. C. Clear Sailing Provision in Settlement Agreement Brennan argues that the inclusion of a clear sailing provision in the settlement agreement was a breach of the fiduciary duty by class counsel in the negotiation of the settlement. This provision states: "Class Counsel will apply to the Court for an award of not more than $6,333,333.33 (33.33 [percent] of the Gross Settlement Amount) as their Class Counsel Fees Payment ... , and Robert Half will not oppose their request. ... Brennan relies on the Ninth Circuit's opinion in Bluetooth, supra, 654 F.3d 935, which includes this statement: “One in- herent risk [in class action settlements} is that class counsel may collude with the defendants, ‘tacitly reduc- ing the overall settlement in return for a higher attorney's fee.' [Citations.]" (dz. at p. 946.) One sign of such collu- sion is “when the parties negotiate a ‘clear sailing’ ar- rangement providing for the payment of attorneys’ fees separate and apart [*41] from class funds, which carries ‘the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accept- ing an unfair settlement on behalf of the class’ [citations] .. ." Ud. at p. 947.) There is, however, no prohibition on clear sailing provisions, nor is there any evidencethat the clearsailing provision in this case reflected any collusion between Laffitte and Robert Half. "While it is true that the propriety of ‘clear sailing’ attorney fee agreements has been debated in scholarly circles [citations], commentators have also noted that class action ‘settlement agreement{s] typically include[] a "clear sailing" clause ... .' [Citation.] In fact, commenta- tors have agreed that such an agreementis proper. ‘[A]n agreement by the defendant to pay such sum of reasona- ble fees as may be awarded by the court, and agreeing also not to object to a fee award up to a certain sum,is probably still a proper and ethical practice. This practice serves to facilitate settlements and avoids a conflict, and yet it gives the defendant a predictable measure of expo- sure of total monetary liability for the judgment and fees in a case. To the extent it facilitates completion of set- tlements, [*42] this practice should not be discouraged.’ {Citation.]"| (Consumer Privacy Cases, supra, 175 Cal.App.4th at p. 553, fn. omitted; see Cellphone Ter- mination Fee Cases (2009) 180 Cal.App.4th 1110, 1120 [104 Cal. Rptr. 3d 275] ["[c}lass action settlements fre- quently contain a ‘clear sailing’ agreement, whereby the defendant agrees not to object to an attorney fee award up to a certain amount"].) (12) In Bluetooth, supra, 654 F.3d 935 the Ninth Circuit stated that "[c]ollusion may not always be evident on the face of a settlement, and courts therefore must be particularly vigilant not only for explicit collusion, but also for more subtle signs that class counsel have al- lowed pursuit of their ownself-interests and that ofcer- tain class members to infect the negotiations. {Citations.] A few such signs are: [{] (1) ‘when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but class counsel are amply rewarded,’ [citations]; [J] (2) when the parties negotiate a ‘clear sailing’ arrangement providing for the paymentof attorneys' fees separate and apart from class funds, which carries ‘the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class, [citation]; and [{] (3) when the parties arrange for fees not awarded to revert [*43] to defendants rather than be added to the class fund,[cita- tion]." (id at p. 947.) Even Judge Posner, on whose writings Brennan relies, has written that "[c]lear-sailing clauses have not been held to be unlawful per se, but [where the case] involv[es] a non-cash settlement award to the class, such a clause should be subjectedto intense critical scrutiny ... ." (Redman vy. RadioShack Corp. (7th Cir., 2014) 768 F.3d 622, 637.) Unlike Bluetooth, where the "settlement agreement included all three of these warning signs" (Bluetooth, supra, 654 F.3d at p. 947), the settlement agreement here contains none of them. As discussed, class counsel re- ceived a percentage of the recovery commensurate with percentages awarded in other cases, and the class mem- bers received a significant monetary distribution. The clear sailing agreement did not provide for a payment of attorneys' fees separate and apart from the common fund but provided for a payment of attorneys' fees out of the fund. Finally, there was no arrangement that fees not awarded would revert to the Robert Half defendants. (See In re Toys "R" Us--Delaware, Inc.--Fair and Accu- rate Credit Transactions Act (FCTA) Litigation (C.D.Cal. 2014) 295 F.R.D. 438, 458 ["despite the clear sailing provision," the "absence of a ‘kicker provision’ in the parties' settlement and [*44] the fact that the class is receiving reasonable value reduces the likelihood that plaintiffs and [the defendant} colluded to confer benefits on each other at the expense of class members"]; Larsen v. Trader Joe's Company (N.D.Cal., July 11, 2014, No. 11-cv-051880-WHO) 2014 WL 3404531 at p. *8 ["clear sailing provisions generally do not raise concerns where, as here, the fees are to come from the settlement fund," as opposed to "where attorneys’ fees are paid on top of the settlement fund"].) In the absence of any ofthe rec- ognized warning signs of collusion or other evidence of collusion, the inclusion of a clear sailing provision in the settlement agreement did not constitute a breach of fidu- ciary duty on the part of class counsel. Exhibit 1-13 Page 14 2014 Cal. App. LEXIS 1059,* DISPOSITION The order entering final judgment is affirmed. The Laffitte class plaintiffs and the Robert Half defendants are to recovertheir costs on appeal. Woods, Acting P. J., and Zelon, J., concurred. Exhibit 1-14 Laffitte v. Robert HalfInt'l, Inc., et al.; David Brennan, Appellant, No. B249253, 2014 Cal.App. LEXIS 1059 ; (2d App.Dist., Div. 7, Oct. 29, 2014) ORDER MODIFYING OPINION AND CERTIFYING FOR PUBLICATION; NO CHANGE IN JUDGMENT EXHIBIT 2 Filed 11/21/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL — SECONDDIST. SECOND APPELLATE DISTRICT FILED MARK LAFFITTEetal., VENDIVISION SE Nov 21 2014 JOSEPHA. LANE,Clerk B249253 Eva McClintock peputy Clerk (Los Angeles CountyPlaintiffs and Respondents, Vv. ROBERT HALF INTERNATIONALINC. et al., Defendants and Respondents, DAVID BRENNAN, Plaintiff and Appellant. THE COURT: Super. Ct. No. BC321317) ORDER MODIFYING OPINION AND CERTIFYING FOR PUBLICATION; NO CHANGEIN JUDGMENT It is ordered that the opinion filed herein on October 29, 2014, be modified as follows: 1. On page 2, under the Introduction heading, add the following paragraph as the first paragraph: This appeal arises from an order overruling objections to a settlement of several wage and hourclass actions, and approving the settlement. We hold that rule 3.769 of the California Rules of Court, not rule 23 of the Federal Rules of Civil Procedure, establishes the requirements in California for settlement notices to class members. We also confirm that the percentageof recovery method for calculating an award ofattorneys’ fees is still viable in common fund cases. Finally, we hold that the presence of a clear sailing provision in a class action settlement does not, without more, invalidate the agreement as collusive. Exhibit 2-1 2. On pageS,line 4 ofthe first full paragraph, add the word “‘and” between the words“counsel” and “supervised”so that the sentence readsin part: The declarations stated that Kevin T. Barnes, who served as lead counsel and supervised and handledall aspects ofthe litigation, . . . 3. On page 20, secondline from the bottom, add the word “see” before the citation Chavez v. Netflix, Inc., supra, 162 Cal.App.4th at p. 64. 4. On page 23, at the beginning ofline 10 ofthefirst full paragraph, change the word “of”to “and” so that the sentence readsin part as follows: The supporting declaration of Richard M.Pearl, an expert on hourlyrates and attorneys’ fees in California,. . . 5. On page 24, line 5 of the paragraph following subheading C,at the end of that line after the ellipses, add a closed quotation mark so that line 5 reads as follows: ... Class Counsel Fees Payment... , and Robert Half will not oppose their request... .” 6. On page 25, the citation at the end ofthefirst full paragraph should be revised to read as follows: (Redman v. RadioShack Corp. (7th Cir. 2014) 768 F.3d 622, 637.) There is no change in the judgment. The opinion in the above-entitled matter filed on October 29, 2014 was not certified for publication in the Official Reports. For good cause it now appears that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), and Exhibit 2-2 IT IS HEREBY ORDEREDthat the words “Not to be Published in the Official Reports” appearing on page | ofsaid opinion be deleted and the opinion be published in the Official Reports. WOODS,Acting P. J. ZELON,J. SEGAL,J.” * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Exhibit 2-3