NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF
COSTS AND EXPENSES - No. C 12-00426 PJH
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Mark N. Todzo (State Bar No. 168389)
Victoria Hartanto (State Bar No. 259833)
LEXINGTON LAW GROUP
503 Divisadero Street
San Francisco, CA 94117-2212
Telephone: (415) 913-7800
Facsimile: (415) 759-4112
mtodzo@lexlawgroup.com
vhartanto@lexlawgroup.com
Christopher M. Burke (State Bar No. 214799)
Hal D. Cunningham (State Bar No. 243048)
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
707 Broadway, Suite 1000
San Diego, CA 92101
Telephone: (619) 233-4565
Facsimile: (619) 233-0508
cburke@scott-scott.com
hcunningham@scott-scott.com
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
DESIREE STEPHENSON, MARNI HABER,
and KARVA TAM, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,
vs.
NEUTROGENA CORPORATION,
Defendant.
No. C 12-00426 PJH
NOTICE OF MOTION AND MOTION FOR
AWARD OF ATTORNEYS’ FEES AND
REIMBURSEMENT OF COSTS AND
EXPENSES; AND MEMORANDUM OF
LAW IN SUPPORT THEREOF
Hearing Date: August 21, 2013
Hearing Time: 2:00 p.m.
Judge: Hon. Phyllis J. Hamilton
TABLE OF CONTENTS
Page
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I. INTRODUCTION ...............................................................................................................1
II. FACTUAL AND PROCEDURAL HISTORY OF THE LITIGATION .............................1
III. AWARD OF ATTORNEYS’ FEES ....................................................................................3
A. The Settlement Terms ..............................................................................................3
1. Injunctive Relief ...........................................................................................3
2. Monetary Relief ...........................................................................................4
B. The Legal Standards Governing the Award of Attorneys’ Fees in Common
Fund Cases Support the Requested Award ..............................................................5
1. A Reasonable Percentage of the Fund Recovered Is the
Appropriate Method for Awarding Attorneys’ Fees in Common
Fund Cases ...................................................................................................5
2. The Injunctive Relief Obtained for the Class Provides an
Independent Basis for the Fee Award ..........................................................6
3. A Fee Equaling theSlightly Over 25% of the Claim Fund Created
Is Reasonable ...............................................................................................7
C. Consideration of the Relevant Factors Used by Courts in the Ninth Circuit
Justifies a Fee Award of One-Third in This Case ....................................................7
1. The Result Achieved ....................................................................................7
2. The Risks of Litigation ................................................................................8
3. The Skill Required and the Quality of the Work .......................................10
4. The Novelty and Difficulty of the Questions Presented ............................11
5. The Contingent Nature of the Fee and the Financial Burden
Carried by Class Counsel ...........................................................................11
6. The Fee Award Is Consistent with Fee Awards in Similar Complex
Class Action Litigations .............................................................................13
7. The Customary Fee ....................................................................................13
8. Reaction of the Class Supports Approval of the Attorneys’ Fees
Requested ...................................................................................................14
IV. THE REQUESTED FEE IS MORE THAN REASONABLE UNDER A
LODESTAR CROSS-CHECK ..........................................................................................15
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V. COUNSEL’S EXPENSES ARE REASONABLE AND WERE NECESSARILY
INCURRED TO ACHIEVE THE BENEFIT OBTAINED...............................................15
VI. THE COURT SHOULD APPROVE THE PAYMENT OF INCENTIVE
AWARDS TO THE CLASS REPRESENTATIVES AS PROVIDED FOR IN
THE SETTLEMENT .........................................................................................................17
VII. CONCLUSION ..................................................................................................................18
TABLE OF AUTHORITIES
Page(s)
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CASES
Abrams v. Lightolier Inc.,
50 F.3d 1204 (3d Cir. 1995).....................................................................................................16
Arenson v. Bd. of Trade of City of Chicago,
372 F. Supp. 1349 (N.D. Ill. 1974) ..........................................................................................11
Barbosa v. Cargill Meat Solutions Corp.,
No. 1:11–cv–00275, 2013 WL 3340939 (E.D. Cal. July 2, 2013) ..........................................18
Behrens v. Wometco Enters., Inc.,
118 F.R.D. 534 (S.D. Fla. 1988) ................................................................................................7
Bell Atl. Corp. v. Bolger,
2 F.3d 1304 (3d Cir. 1993).........................................................................................................8
Bezio v. Gen. Elec. Co.,
655 F. Supp. 2d 1628 (N.D.N.Y. 2009) ...................................................................................18
Blum v. Stenson,
465 U.S. 886 (1984) .............................................................................................................5, 13
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of Stephens County, Okla.,
8 F.3d 722 (10th Cir. 1993) .....................................................................................................16
Cent. R.R. & Banking Co. of Ga. v. Pettus,
113 U.S. 116 (1885) ...................................................................................................................5
Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
741 F. Supp. 84 (S.D.N.Y. 1990).............................................................................................17
Gottlieb v. Wiles,
150 F.R.D. 174 (D. Colo. 1993), rev’d and remanded on other grounds sub nom.
Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994) ......................................................................16
Harris v. Marhoefer,
24 F.3d 16 (9th Cir. 1994) .......................................................................................................15
Hensley v. Eckerhart,
461 U.S. 424 (1983) .............................................................................................................7, 15
In re Am. Bus. Fin. Servs. Inc. Noteholders Litig.,
No. 05-232, 2008 WL 4974782 (E.D. Pa. Nov. 21, 2008) ......................................................16
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In re American Investors Life Insurance Co. Annuity Marketing and Sales Practices
Litig.,
263 F.R.D. 226 (E.D. Pa. 2009) ...............................................................................................17
In re BankAtlantic Bancorp, Inc. Sec. Litig.,
No. 07-61542-Civ., 2011 WL 1585605 (S.D. Fla. Apr. 25, 2011) ..........................................12
In re Equity Funding Corp. of Am. Sec. Litig.,
438 F. Supp. 1303 (C.D. Cal. 1977) ........................................................................................11
In re Heritage Bond Litig. v. U.S. Trust Co. of Tex., N.A.,
No. 02-ML-1475, 2005 WL 1594389 (C.D. Cal. June 10, 2005) ..................................9, 10, 13
In re Ikon Office Solutions, Inc. Sec. Litig.,
194 F.R.D. 166 (E.D. Pa. 2000) ...............................................................................................14
In re King Res. Co. Sec. Litig.,
420 F. Supp. 610 (D. Colo. 1976) ....................................................................................7, 9, 11
In re M.D.C. Holdings Sec. Litig.,
No. CV 89-0090, 1990 WL 454747 (S.D. Cal. Aug. 30, 1990) ..............................................14
In re McDonnell Douglas Equip. Leasing Sec. Litig.,
842 F. Supp. 733 (S.D.N.Y. 1994)...........................................................................................16
In re Media Vision Tech. Sec. Litig.,
913 F. Supp. 1362 (N.D. Cal. 1996) ..................................................................................15, 16
In re Mego Fin. Corp. Sec. Litig.,
213 F.3d 454 (9th Cir. 2000) .............................................................................................13, 14
In re Pacific Enter. Sec. Litig.,
47 F.3d 373 (9th Cir. 1995) .....................................................................................................13
In re Prudential-Bache Energy Income P’ships Sec. Litig.,
No. 888, 1994 WL 202394 (E.D. La. May 18, 1994) ........................................................10, 12
In re Rite Aid Corp. Sec. Litig.,
396 F.3d 294 (3d Cir. 2005).....................................................................................................14
In re Sumitomo Copper Litig.,
74 F. Supp. 2d 393 (S.D.N.Y. 1999) ........................................................................................15
In re Synthroid Mktg. Litig.,
264 F.3d 712 (7th Cir. 2001) .............................................................................................13, 15
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In re Synthroid Mktg. Litig.,
325 F.3d 974 (7th Cir. 2003) ...................................................................................................13
In re Wash. Pub. Power Supply Sys. Sec. Litig.,
19 F.3d 1291 (9th Cir. 1994) ........................................................................................... passim
J.N. Futia Co. v. Phelps Dodge Indus., Inc.,
No. 78 Civ. 4547, 1982 WL 1892 (S.D.N.Y. Sept. 17, 1982) .................................................10
Johnson v. Ga. Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974) ...................................................................................................11
Keith v. Volpe,
501 F. Supp. 403 (C.D. Cal. 1980) ..........................................................................................15
Lindy Bros. Builders Inc. of Philadelphia v. Am. Radiator & Standard Sanitary Corp.,
540 F.2d 102 (3d Cir. 1976).......................................................................................................8
Matter of Cont’l Ill.Sec. Litig.,
962 F.2d 566 (7th Cir. 1992) .......................................................................................13, 16, 17
McGee v. Continental Tire N.A., Inc.,
Civ. No. 06-6234, 2009 WL 539893 (D.N.J. Mar. 4, 2009) ....................................................18
Miltland Raleigh-Durham v. Myers,
840 F. Supp. 235 (S.D.N.Y. 1993)...........................................................................................16
New England Health Care Employees Pension Fund v. Fruit of the Loom,
234 F.R.D. 627 (W.D. Ky. 2006).............................................................................................16
Paul, Johnson, Alston & Hunt v. Graulty,
886 F.2d 268 (9th Cir. 1989) .............................................................................................5, 6, 7
Powers v. Eichen,
229 F.3d 1249 (9th Cir. 2000) ...................................................................................................7
Rabin v. Concord Assets Group,
No. 89 Civ 6130, 1991 WL 275757 (S.D.N.Y. Dec. 19, 1991) ...............................................15
Roberts v. Texaco, Inc.,
979 F. Supp. 185 (S.D.N.Y. 1997)...........................................................................................15
Six Mexican Workers v. Ariz. Citrus Growers,
904 F.2d 1301 (9th Cir. 1990) ...................................................................................................6
Thornberry v. Delta Air Lines, Inc.,
676 F.2d 1240 (9th Cir. 1982) .................................................................................................16
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Torrisi v. Tucson Elec. Power Co.,
8 F.3d 1370 (9th Cir. 1993) ...................................................................................................6, 7
Trustees v. Greenough,
105 U.S. 527 (1881) ...................................................................................................................5
Vincent v. Hughes Air W., Inc.,
557 F.2d 759 (9th Cir. 1977) .....................................................................................................5
Vizcaino v. Microsoft Corp.,
142 F. Supp. 2d 1299 (W.D. Wash. 2001) ...............................................................................11
Vizcaino v. Microsoft Corp.,
290 F.3d 1043 (9th Cir. 2002) .......................................................................................6, 13, 15
OTHER AUTHORITIES
1 Alba Conte, ATTORNEY FEE AWARDS (3d ed. 2004) ..................................................................14
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TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD
PLEASE TAKE NOTICE on August 21, 2013 at 2:00 p.m., or as soon thereafter as this
matter may be heard by and before the Honorable Phyllis J. Hamilton, United States District
Judge, at the United States Courthouse, Oakland Courthouse, Courtroom 3, 3rd Floor, 1301 Clay
Street, Oakland, California 94612, Plaintiffs Desiree Stephenson, Marni Haber, and Karva Tam
(“Plaintiffs”), on behalf of the proposed Class (defined herein) will and hereby do move for an
award of attorneys’ fees, and the reimbursement of costs and expenses. This motion is based
upon the Memorandum of Points and Authorities in Support of Class Counsel’s Motion for an
Award of Attorneys’ Fees and Reimbursement of Costs and Expenses, the Declaration of Mark
Todzo in Support thereof, submitted herewith, the Stipulation of Settlement dated December 20,
2012, and all other pleadings and matters of record.
MEMORANDUM OF LAW
I. INTRODUCTION
As detailed in Plaintiffs’ accompanying Brief in Support of Final Approval of Proposed
Class Settlement (“Final Approval Brief”), the Stipulation of Settlement (“Settlement”)1 entered
into with Defendant Neutrogena Corporation. (“Neutrogena” or “Defendant”) in this action
represents a manifestly favorable outcome for the Class Members,2 particularly when judged in
the context of the meaningful litigation risks attendant in this action. As is more fully set forth
herein and in Plaintiffs’ Final Approval Brief, the requested Fee Award is fair and reasonable.
Therefore, Plaintiffs and Class Counsel respectfully request that their application for an award of
attorneys’ fees and costs and approval of incentive awards be granted.
II. FACTUAL AND PROCEDURAL HISTORY OF THE LITIGATION
Defendant Neutrogena is a manufacturer, seller, and distributor of a line of skincare
1 The Settlement is attached as Exhibit 1 to the Declaration of Mark Todzo in
Support of Plaintiffs’ Motion for Preliminary Approval of Proposed Class Settlement
Agreement. ECF No. 45-1.
2 Unless otherwise specified, all capitalized terms are defined in the Settlement and
have the same meaning herein.
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products known as Neutrogena Naturals (the “Products”), which are sold to consumers across the
nation, including in California. Plaintiffs allege that they were induced to purchase the Products
by Neutrogena’s representations and claims that the Products are natural; in fact, Plaintiffs
allege, the Products contain various artificial and synthetic ingredients. Plaintiffs further allege
that certain statements made by Neutrogena in marketing and advertising the Products, including
that they contain “[n]o harsh chemical sulfates, parabens, petrochemicals, dyes, phthalates,” are
false and misleading. Plaintiffs seek to represent a class of persons throughout the United States
who, like themselves, purchased the Products at a price premium, erroneously believing them to
be natural based on Neutrogena’s representations. The primary objectives of Plaintiffs’ case are
to: (1) require Neutrogena to halt its allegedly deceptive marketing and advertising practices
(thereby protecting consumers in the future); and (2) to disgorge the premiums it allegedly
obtained as a result of its misrepresentations (thereby compensating consumers for past
wrongdoings).
On January 26, 2012, Plaintiff Desiree Stephenson filed a Complaint against Neutrogena
in the U.S. District Court for the Northern District of California. The Complaint alleged: (1)
violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §17200, et
seq.; California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §17500, et seq.; and
California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §1750, et seq.; and (2)
breach of express warranty with regard to four Neutrogena Naturals “cleanser” products: the
Purifying Facial Cleanser, Purifying Pore Scrub, Face and Body Bar, and Fresh Cleansing +
Makeup Remover. On March 28, 2012, Plaintiff Stephenson filed a First Amended Complaint
alleging the same causes of action, but adding two additional Neutrogena Naturals “moisturizer”
products: the Multi-Vitamin Nourishing Night Cream and Multi-Vitamin Nourishing
Moisturizer.
On July 27, 2012, the Court granted in part and denied in part Neutrogena’s Motion to
Dismiss, dismissing claims as to the five Products that Plaintiff Stephenson did not purchase and
striking Plaintiff Stephenson’s prayer for injunctive relief insofar as she did not adequately allege
a risk of future injury. However, the Court gave Plaintiff Stephenson leave to file an amended
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complaint to add allegations that she intends to purchase Neutrogena Naturals Products in the
future if the alleged misrepresentations are corrected. On October 26, 2012, Plaintiffs filed a
Second Amended Complaint adding these allegations, and also adding Marni Haber and Karva
Tam – two California residents who purchased the Products under the misguided belief that they
were natural and contained no petrochemicals – as named Plaintiffs and putative Class
representatives. Neutrogena filed an Answer to that Second Amended Complaint on November
9, 2012.
Even prior to the Court’s July 27, 2012 Order on Neutrogena’s Motion to Dismiss, the
parties had begun discussions regarding the underlying factual allegations and potential
settlement options. On August 7, 2012, the parties participated in settlement mediation with the
Honorable Edward A. Panelli (Retired). During the course of the mediation session and
thereafter, Neutrogena provided Plaintiffs with vital information pertinent to the legitimacy and
scope of Plaintiffs’ claims, including sworn statements to Plaintiffs confirming the composition
and labeling of the Neutrogena Naturals products and the number of products sold to date. These
discussions and the mediation resulted in the settlement terms discussed below. Although
Neutrogena has numerous defenses to the underlying allegations and the basis for certifying the
Class, in recognition of the risks of the litigation and the certain, significant costs of defending it,
Neutrogena agreed to a settlement that will provide valuable benefits to Class Members.
III. AWARD OF ATTORNEYS’ FEES
A. The Settlement Terms
The Settlement resolves the claims alleged in the Second Amended Complaint and
includes all persons throughout the United States who purchased one or more of Defendant
Neutrogena’s Products, at any time from January 1, 2011 and April 22, 2013 (the “Class
Period”). See Settlement at ¶ I.A.14. The Settlement has an injunctive component and a
monetary component, and each form of relief provides a distinct benefit to the Class.
1. Injunctive Relief
First, in settlement of Plaintiffs’ and the Class’s claims, Neutrogena has agreed to change
the labeling and, where applicable, packaging of all Products. See Settlement at ¶ III.A.1. In
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order to cure any misperception that the Products are all-natural, Neutrogena will include a
statement regarding the exact percentage of the Product that is naturally derived on the front of
the labels and/or packages of each Product. Id. In addition, Neutrogena will remove the term
“petrochemicals” from the statement “No harsh chemical sulfates, parabens, petrochemicals,
dyes, phthalates” on the Product labels in order to cure the alleged misrepresentation resulting
from Plaintiffs’ contention that the Products contain petrochemical residues. Id.
2. Monetary Relief
Second, the parties have agreed that Neutrogena will pay $1,300,000 (the “Claim Fund”)
for distribution to Class Members who submit a valid Claim Form. Id. at ¶43. Class Members
can submit a claim for up to $1 per “cleanser” Product purchased during the Class Period and $2
per “moisturizer” Product purchased during the Class Period up to a maximum of $10. Id. at
¶48. Thus, Class Counsel have secured a common fund recovery for the Class based on a fully
compensable purchase price to be paid to Class Members, subject to pro rata reduction since the
aggregate claims exceed the Claim Fund. See Settlement at ¶ III.B.2(d). In addition, Neutrogena
has agreed to pay attorneys’ fees and expenses awarded by the Court up to $500,000. Neutrogena
will pay the attorneys’ fees and expenses in addition to and apart from the Claim Fund. In total,
Neutrogena has made $1,800,000 available in the Settlement.
Given the inherent risks in litigating a damages class in this case, this benefit is highly
significant. Thus, as permitted under the Settlement, Plaintiffs and Class Counsel requests
attorneys’ fees and costs of $500,000, which represents 28% of the funds made available in the
Settlement (the “Fee Award”). See Settlement at ¶ VIII.A.1-6. In achieving the injunctive and
monetary relief in this matter, Class Counsel worked 963.7 hours, all on a contingency basis with
no guarantee of success or ever being paid. See Declaration of Mark Todzo (“Todzo Decl.”) at
¶¶22, Exhibit 6; Declaration of Daryl F. Scott (“Scott Decl.”) at ¶3. The requested Fee Award
reflects the risk taken by Class Counsel, as well as the estimable results achieved. When
utilizing this Circuit’s preferred method of contingency-fee determination – percentage of the
fund with a lodestar cross-check – it is abundantly clear that the requested fee not only is
reasonable, but also is well within the range of fees awarded in similar contingency cases.
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B. The Legal Standards Governing the Award of Attorneys’ Fees in
Common Fund Cases Support the Requested Award
1. A Reasonable Percentage of the Fund Recovered Is the
Appropriate Method for Awarding Attorneys’ Fees in
Common Fund Cases
For their efforts in creating a common fund for the benefit of the Class, Class Counsel
seek a reasonable percentage of the fund recovered as attorneys’ fees. The percentage method of
awarding fees has become an accepted, if not the prevailing, method for awarding fees in
common fund cases in this Circuit and throughout the United States. Indeed, the Fee Award
requested here provides no multiplier as Class Counsel requests a fee less than its lodestar.
It has long been recognized in equity that “a private plaintiff, or his attorney, whose
efforts create, discover, increase or preserve a fund to which others also have a claim is entitled
to recover from the fund the costs of his litigation, including attorneys’ fees.” Vincent v. Hughes
Air W., Inc., 557 F.2d 759, 769 (9th Cir. 1977). The purpose of this doctrine is to avoid unjust
enrichment so that “those who benefit from the creation of the fund should share the wealth with
the lawyers whose skill and effort helped create it.” In re Wash. Pub. Power Supply Sys. Sec.
Litig., 19 F.3d 1291, 1300 (9th Cir. 1994) (“WPPSS”). This rule, known as the common fund
doctrine, is firmly rooted in American case law. See, e.g., Trustees v. Greenough, 105 U.S. 527
(1881); Cent. R.R. & Banking Co. of Ga. v. Pettus, 113 U.S. 116 (1885).3
In Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984), the Supreme Court recognized that
“under the ‘common fund doctrine’” a reasonable fee may be based “on a percentage of the fund
3 In Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989), the
Ninth Circuit explained the principle underlying fee awards in common fund cases:
Since the Supreme Court’s 1885 decision in Central Railroad & Banking Co. of
Ga. v. Pettus, 113 U.S. 116 (1885), it is well settled that the lawyer who creates a
common fund is allowed an extra reward, beyond that which he has arranged with
his client, so that he might share the wealth of those upon whom he has conferred
a benefit. The amount of such a reward is that which is deemed “reasonable”
under the circumstances.
Id. at 271 (emphasis in original).
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bestowed on the class.”4 In this Circuit, the district court has discretion to award fees in
common fund cases based on either the so-called lodestar/multiplier method or the percentage-
of-the-fund method. WPPSS, 19 F.3d at 1296. In Paul, Johnson, 886 F.2d 268, Six (6) Mexican
Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990), Torrisi v. Tucson Elec. Power
Co., 8 F.3d 1370 (9th Cir. 1993), and Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir.
2002), the Ninth Circuit expressly approved the use of the percentage method in common fund
cases.
2. The Injunctive Relief Obtained for the Class Provides an
Independent Basis for the Fee Award
The Settlement requires Neutrogena to provide significant non-monetary relief which,
while not readily quantifiable, provides real value to the Class. As discussed in Plaintiffs’
accompanying Final Approval Brief, the injunctive relief will fully remedy Defendant’s alleged
misrepresentations by requiring it to place the actual percentage of natural ingredients on the
front label and removing the statement that the Products contain no petrochemicals.
The presence of non-quantifiable injunctive relief is “a ‘relevant circumstance’ in
determining what percentage of the common fund class counsel should receive as attorneys’
fees.” Staton v. Boeing Co., 327 F.3d 938, 946 (9th Cir. 2003); see also Dennings v. Clearwire
Corp., No. C10-1859, 2013 WL 1858797, at *7 (W.D. Wash. May 3, 2013); McCoy v. Health
Net, Inc., 569 F.Supp.2d 448, 478 (D.N.J. 2008). Here, the meaningful non-monetary relief
obtained for the Class confirms the “reasonableness and propriety” of the requested Fee Award.
In fact, in many instances, classwide injunctive relief alone is sufficient to warrant an award of
attorneys’ fees and costs that is equal to, or even in excess of, lodestar. See, e.g., Goldkorn v.
County of San Bernardino, No. EDCV 06-707, 2012 WL 476279 (C.D. Cal. Feb. 13, 2012)
(awarding class counsel $690,000 in attorneys’ fees and costs in settlement for injunctive and
declaratory relief only, without any monetary award to the class, in action regarding disability
access to courthouses in San Bernardino County); Wehlage v. Evergreen at Arvin LLC, No. 4:10-
4 Unless otherwise noted, citations are omitted and emphasis is added.
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cv-05839-CW, 2012 WL 4755371 (N.D. Cal. Oct. 4, 2012) (awarding $1,835,857.82 in
attorneys’ fees to class counsel for class-wide injunctive relief settlement regarding staffing at
skilled nursing facilities, with no monetary award to the class). Here, after obtaining significant
monetary and injunctive relief, Class Counsel seek a fee award that is less than lodestar, an
award that is patently reasonable.
3. A Fee Equaling Slightly Over 25% of the Claim Fund Created
Is Reasonable
In Paul, Johnson, the Ninth Circuit established 25% of the fund as the “benchmark”
award for attorneys’ fees. 886 F.2d at 272; see also Torrisi, 8 F.3d at 1376 (reaffirming 25%
benchmark); Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (same). However, the
guiding principle in this Circuit is that a fee award be “‘reasonable under the circumstances.’”
WPPSS, 19 F.3d at 1295 n.2. Here, a fee award slightly in excess of the 25% benchmark is
reasonable for a number of reasons. Given the value of the injunctive relief to the Class,
injunctive relief that was the principal relief sought in the case, the additional 2.7% of the
monetary relief is reasonable. Moreover, the contingent-fee risk, the number of hours dedicated
to this case, and the financial commitment of Class Counsel, all justify an award of 28% of the
monetary recovery.
C. Consideration of the Relevant Factors Used by Courts in the Ninth
Circuit Justifies a Fee Award of One-Third in This Case
Class Counsel submit that, as the factors discussed below demonstrate, the Fee Award is
reasonable under the circumstances of this case and should be approved.
1. The Result Achieved
Courts have consistently recognized that the result achieved is an important factor to be
considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (“most
critical factor is the degree of success obtained”); In re King Res. Co. Sec. Litig., 420 F. Supp.
610, 630 (D. Colo. 1976) (“the amount of the recovery, and end result achieved are of primary
importance, for these are the true benefit to the client”); Behrens v. Wometco Enters., Inc., 118
F.R.D. 534, 547-48 (S.D. Fla. 1988), aff’d, 899 F.2d 21 (11th Cir. 1990) (“The quality of work
performed in a case that settles before trial is best measured by the benefit obtained.”).
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Class Counsel negotiated a $1.3 million Settlement for Class Members, which is a
certain, present return for the Class. Class Members can submit a claim for $1 or $2 per Product
purchased during the Class Period, which represents a substantial proportion -- between 30% and
75% -- of the estimated damages. Settlement at ¶¶ III.B. 1-3; Todzo Decl., ¶15. The Settlement
also provides up to $500,000 for attorneys’ fees and expenses awarded by the Court, which will
not diminish the Claim Fund. Moreover, the injunctive relief obtained will benefit each and
every Class Member through the corrective labeling, regardless of whether the Class Member
submits a claim. See Settlement at ¶ III.A.1. Given the inherent litigation risks in this putative
nationwide class action, the Settlement is highly significant as it provides tangible benefits
without the risks and delays of continued litigation. Thus, it is clear that Class Counsel delivered
a significant benefit to Neutrogena consumers nationwide.
As of July 17, 2013, over 10,000 claims have been submitted and only a single request
for exclusion has been received. See Todzo Decl., Exhibit 3. There are no objections to the
Settlement or the Fee Award. This de minimus number of requests for exclusion indicates a
highly positive response to the Settlement.5 See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454,
459 (9th Cir. 2000). The lack of any meaningful negative response to the Settlement evinces the
quality and value of the Settlement. Class Counsel will provide a final tally of the exclusions
and objections, and respond fully to their substance. The data to date, however, reflects
overwhelming support from the Class. Class Counsel, accordingly, should be appropriately
rewarded for their achievement.
2. The Risks of Litigation
Numerous cases have recognized that risk is an important factor in determining a fair fee
award. See, e.g., WPPSS, 19 F.3d at 1299-1301; Lindy Bros. Builders Inc. of Philadelphia v.
Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 117 (3d Cir. 1976). Uncertainty that an
5 The deadline for submitting requests for exclusion and filing objections to the
Settlement was July 5, 2013.
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ultimate recovery would be obtained is highly relevant in determining risk. WPPSS, 19 F.3d at
1300; Lindy, 540 F.2d at 117. As the court aptly observed in King Resources:
The litigation also involved unique and substantial issues of law in the
technical area of SEC Rule 10b-5, . . . difficult, complex and oft-disputed class
action questions, and difficult questions regarding computation of damages.
* * *
In evaluating the services rendered in this case, appropriate consideration
must be given to the risks assumed by plaintiffs’ counsel in undertaking the
litigation. The prospects of success were by no means certain at the outset, and
indeed, the chances of success were highly speculative and problematical.
420 F. Supp. at 632, 636-37; see also In re Heritage Bond Litig. v. U.S. Trust Co. of Tex., N.A.,
No. 02-ML-1475, 2005 WL 1594389, at *14 (C.D. Cal. June 10, 2005) (“The risks assumed by
Class Counsel, particularly the risk of non-payment or reimbursement of expenses, is a factor in
determining counsel’s proper fee award.”).
a. Without This Settlement, Class Counsel Would
Encounter Time-Consuming, Lengthy Litigation
Here, substantial risks and uncertainties were present from the outset of this litigation that
made it far from certain that any recovery for the Class would be obtained. As a complex
consumer class action on behalf of a putative nationwide class, this case would entail hard-
fought and lengthy litigation. This case has been pending for approximately 18 months. If
litigation were to continue, additional party and non-party discovery would be sought, requiring
time-consuming review. The case also would require extensive expert analysis of the
composition of the Products, as well as the consumer impact of Defendant’s representations
regarding the Product’s purported attributes. The case likely would shape up to be a battle of the
experts, and thus, expert expenses would be substantial. As a putative nationwide class action,
complex legal and factual issues would be the subject of pretrial motions, including for class
certification. The class certification decision likely would lead to the inevitable Rule 23(f)
interlocutory appeal, potentially delaying prosecution of the case should a stay pending appeal be
granted. Given the prospect of protracted litigation, engendering enormous time and monetary
expenditure, this factor weighs in favor of Plaintiffs’ and Class Counsel’s application. While
Class Counsel remain confident they could prevail, this presented an additional risk of litigation
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that could have terminate the litigation at summary judgment.
b. Class Counsel Undertook the Risk of Non-Payment
Class Counsel undertook this action on an entirely contingent-fee basis, assuming a
substantial risk that the litigation would yield no, or very little, recovery and leave them
uncompensated for their time, as well as for their substantial out-of-pocket expenses. Courts
across the country have consistently recognized that the risk of receiving little or no recovery is a
major factor in considering an award of attorneys’ fees. See, e.g., In re Warner Communications
Sec. Litig., 618 F. Supp. 735, 747-49 (S.D.N.Y. 1985). As one court stated:
Counsel’s contingent fee risk is an important factor in determining
the fee award. Success is never guaranteed and counsel faced
serious risks since both trial and judicial review are unpredictable.
Counsel advanced all of the costs of litigation, a not insubstantial
amount, and bore the additional risk of unsuccessful prosecution.
In re Prudential-Bache Energy Income P’ships Sec. Litig., No. 888, 1994 WL 202394, at *6
(E.D. La. May 18, 1994).
Despite the litigation risks, Class Counsel were able to forge a resolution that provides
significant present relief to the Class, including substantial monetary recovery. Thus, there is
little doubt that Class Counsel undertook a significant risk here and the Fee Award, respectfully,
should reflect that risk
In light of the forgoing, it cannot be disputed that Class Counsel undertook a risky
proposition when they accepted this case on a contingency basis. Likewise, there is no question
that if this case had not settled, Class Counsel faced the substantial risk of many more years of
litigation with no guarantee of any compensation. Accordingly, this factor strongly supports the
requested fee.
3. The Skill Required and the Quality of the Work
The successful prosecution of these complex claims required the participation of highly
skilled and specialized attorneys. See Heritage Bond, 2005 WL 1594389, at *12 (“The
experience of counsel is also a factor in determining the appropriate fee award.”). From the
outset, Class Counsel engaged in a significant effort to obtain the maximum recovery for the
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Class. Class Counsel demonstrated that they would work to develop sufficient evidence to
support a convincing case.
Class Counsel were able to negotiate a settlement they believe is fair under all the
circumstances. The skill demonstrated by Class Counsel supports the requested fee. See, e.g.,
J.N. Futia Co. v. Phelps Dodge Indus., Inc., No. 78 Civ. 4547, 1982 WL 1892 (S.D.N.Y. Sept.
17, 1982). The quality of opposing counsel is also important in evaluating the quality of the
work done by Plaintiffs’ Counsel. See, e.g., In re Equity Funding Corp. of Am. Sec. Litig., 438
F. Supp. 1303, 1337 (C.D. Cal. 1977); King Res., 420 F. Supp. at 634; Arenson v. Bd. of Trade of
City of Chicago, 372 F. Supp. 1349, 1354 (N.D. Ill. 1974). Class Counsel were opposed in this
litigation by counsel from a large international law firm with a well-deserved reputation for
vigorous advocacy on behalf of its clients. Defense counsel challenged virtually every aspect of
the case. It simply cannot be disputed that this factor weighs in favor of the requested fee.
4. The Novelty and Difficulty of the Questions Presented
The novelty and difficulty of the issues in a case are significant factors to be considered
in making a fee award. See, e.g., Vizcaino v. Microsoft Corp., 142 F. Supp. 2d 1299, 1306 (W.D.
Wash. 2001); Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). This case
was novel and difficult. The issue in this case concerned the marketing of cosmetic and personal
care Products containing various artificial and synthetic ingredients with suggestive, but not
necessarily explicit, claims that the Products are Natural. As this Court has recognized, there is
no established statutory or regulatory definition of what constitutes a natural cosmetic or
personal care product. Moreover, the statements challenged appeared in a variety of media,
including on the Product’s label, website, and in print, all of which included different variations
and combinations of phrases so that Plaintiffs were tasked with the particularly difficult
challenge of demonstrating a common message or theme.
For these reasons, this factor weighs in favor of the requested Fee Award.
5. The Contingent Nature of the Fee and the Financial Burden
Carried by Class Counsel
A determination of a fair fee must include consideration of the contingent nature of the
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fee. It is an established practice in the private legal market to reward attorneys for taking the risk
of non-payment by paying them a premium over their normal hourly rates for winning
contingency cases. See Richard A. Posner, ECONOMIC ANALYSIS OF LAW §21.9, at 534-35 (3d
ed. 1986). Contingent fees that may far exceed the market value of the services if rendered on a
non-contingent basis are accepted in the legal profession as a legitimate way of assuring
competent representation for plaintiffs who could not afford to pay on an hourly basis regardless
of whether they win or lose. WPPSS, 19 F.3d at 1299.
Courts have consistently recognized that the risk of receiving little or no recovery is a
major factor in considering an award of attorneys’ fees. For example, in awarding counsel’s
attorneys’ fees in Prudential-Bache Energy Income P’ships Sec. Litig., the court noted the risks
that plaintiffs’ counsel had taken:
Although today it might appear that risk was not great based on Prudential
Securities’ global settlement with the Securities and Exchange Commission, such
was not the case when the action was commenced and throughout most of the
litigation. Counsel’s contingent fee risk is an important factor in determining the
fee award. Success is never guaranteed and counsel faced serious risks since both
trial and judicial review are unpredictable. Counsel advanced all of the costs of
litigation, a not insubstantial amount, and bore the additional risk of unsuccessful
prosecution.
Prudential-Bache Energy Income P’ships Sec. Litig., 1994 WL 202394, at *6.
These risks are not illusory. There are numerous class actions in which plaintiffs’
counsel expended thousands of hours, and yet received no remuneration whatsoever despite their
diligence and expertise. In fact, even when a plaintiff is successful at trial, payment is not
guaranteed. See In re BankAtlantic Bancorp, Inc. Sec. Litig., No. 07-61542-Civ., 2011 WL
1585605 (S.D. Fla. Apr. 25, 2011) (granting judgment as a matter of law for defendants after
jury returned verdict for plaintiffs).
The risks in this case were no different. Because the fee in this matter was entirely
contingent, the only certainty was that there would be no fee without a successful result and that
such a result would only be realized after significant amounts of time, effort and expense had
been expended. Indeed, Class Counsel have received no compensation for their efforts during
the course of this litigation. Absent this settlement, there was a sizeable risk that at the end of
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the day Class Members, as well as their counsel, would obtain no recovery. Counsel for the
Plaintiffs have risked non-payment of $18,083.25 in expenses and over $501,579 in attorney
time expended on this matter, knowing that if their efforts were not successful, no fee would be
paid and that they would not recoup their expenses. Accordingly, this factor plainly supports the
requested fee award.
6. The Fee Award Is Consistent with Fee Awards in Similar
Complex Class Action Litigations
The fee requested is, consistent with the fees awarded in other class actions:
• In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) (upholding award of
33.3% of $1.725 million settlement);
• Smith v. Qwest Communications Co., LLC, No. 11 Civ. 2599, 2013 WL 3200592, at
*3 (N.D. Cal. June 24, 2013) (granting fee and expense award equaling 28.68% of the
common fund);
• Johnson v. General Mills, Inc., No. 10 Civ. 00061, 2013 WL 3213832, at *6 (C.D.
Cal. June 17, 2013) (awarding 30% of the total settlement fund as fees in a
consumer class action);
• Smith v. Cardinal Logistics Mgmt. Corp., No. 07-2104. 2011 WL 3667462, at *5
(N.D. Cal. Aug 22, 2011) (awarding fees equaling 28% of a common fund);
The fees paid in these comparable cases support the 28% Fee Award requested, which is
clearly within the range of approvable fees and costs in this Circuit.
7. The Customary Fee
Circuit courts and scholars have encouraged the “mimic the market” approach in setting
fees in common fund class action cases. See Matter of Cont’l Ill.Sec. Litigl, 962 F.2d 566, 568
(7th Cir. 1992) (“[I]t is not the function of judges in fee litigation to determine the equivalent of
the medieval just price. It is to determine what the lawyer would receive if he were selling his
services in the market rather than being paid by court order.”); In re Synthroid Mktg. Litig., 264
F.3d 712, 718 (7th Cir. 2001) (“[W]hen deciding on appropriate fee levels in common-fund
cases, courts must do their best to award counsel the market price for legal services, in light of
the risk of nonpayment and the normal rate of compensation in the market at the time.”); In re
Synthroid Mktg. Litig., 325 F.3d 974, 975 (7th Cir. 2003) (“A court must give counsel the market
rate for legal services.”). Thus, courts often look at fees awarded in comparable cases to
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determine if the fee requested is reasonable. Vizcaino, 290 F.3d at 1050 n.4.
If this were a non-representative litigation, the customary fee arrangement would be
contingent, on a percentage basis, and in the range of 30% to 40% of the recovery. Blum, 465
U.S. at 904 (“In tort suits, an attorney might receive one-third of whatever amount the plaintiff
recovers.”) (concurring); In re M.D.C. Holdings Sec. Litig., No. CV 89-0090, 1990 WL 454747,
at *7 (S.D. Cal. Aug. 30, 1990) (“In private contingent litigation, fee contracts have traditionally
ranged between 30% and 40% of the total recovery.”); In re Ikon Office Solutions, Inc. Sec.
Litig., 194 F.R.D. 166, 194 (E.D. Pa. 2000) (same). Accordingly, the customary contingent fee
in the private marketplace supports a finding that the one-third fee request in this case is fair and
reasonable.6
8. Reaction of the Class Supports Approval of the Attorneys’
Fees Requested
A dedicated website, http://www.facialcleansersettlement.com/, was also created, and all
relevant documents and dates were posted thereon. See Todzo Decl., Exhibit 3.
To date, no objections to the requested amount of attorneys’ fees and expenses have been
received. The Third Circuit has noted that a low level of objections is a “rare phenomenon.” In
re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 305 (3d Cir. 2005). Moreover, as this Circuit has
held, a small number of objections do not stand in the way of approval of a reasonable fee. See
Mego Fin., 213 F.3d at 459. The reaction of the Class, therefore, weighs heavily in favor of
approving the fee request.
6 Professor Conte acknowledged the propriety of adequately compensating counsel
based on the result obtained in common fund cases:
[C]ourts have been careful to award a fully compensable reasonable fee based on
the underlying economic inducement for class action lawyers to pursue potentially
expensive or complex common-fund class litigation. These lawyers assume the
risk of no compensation unless they successfully confer common-fund benefits on
the class, based on their reasonable expectation that they will share in the
recovery in a fair proportion, in contrast to receiving a fee based initially on time-
expended criteria that fail to give the results-obtained factor primary
consideration.
1 Alba Conte, ATTORNEY FEE AWARDS §1.09, at 27 (3d ed. 2004).
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IV. THE REQUESTED FEE IS MORE THAN REASONABLE UNDER A
LODESTAR CROSS-CHECK
The first step in applying the lodestar cross-check is to determine the dollar value of the
proposed percentage fee award. Here, Class Counsel request a total fee and cost reimbursement
of $500,000. The next step requires the Court to ascertain the lodestar figure by multiplying the
number of hours worked by the hourly rate of counsel. The Court can the determine an implied
multiplier that may be assessed for reasonableness by taking into account the contingent nature
and risks of the litigation, the results obtained, and the nature of and quality of the services
rendered by plaintiffs’ counsel. See, e.g., Hensley, 461 U.S. 424. In so doing, “‘courts have
routinely enhanced the lodestar to reflect the risk of non-payment in common fund cases.’”
Vizcaino, 290 F.3d at 1051.
Here, the cumulative number of hours expended by Class Counsel is 963.7, and the
resulting lodestar for the services performed is $501,579. See Todzo Decl. at ¶¶22, Exhibit 6;
Scott Decl. at ¶3. The requested fee is less than the lodestar. A multiplier of less than one
demonstrates that the requested fee is within the range of reasonableness, because it is common
for courts to enhance the lodestar in complex litigation by multipliers of between 3.0 and 4.5,
and many courts have awarded higher multipliers. See, e.g., In re Sumitomo Copper Litig., 74 F.
Supp. 2d 393, 399 (S.D.N.Y. 1999) (“‘In recent years multipliers of between 3 and 4.5 have been
common’ in federal securities cases.”); Rabin v. Concord Assets Group, No. 89 Civ 6130, 1991
WL 275757, at *2 (S.D.N.Y. Dec. 19, 1991) (multipliers between 3 and 4.5 have been common
in recent years); Vizcaino, 290 F.3d at 1051 (finding multipliers ranged as high as 19.6, though
most run from 1.0 to 4.0); Roberts v. Texaco, Inc., 979 F. Supp. 185, 198 (S.D.N.Y. 1997)
(awarding multiplier of 5.5); Keith v. Volpe, 501 F. Supp. 403, 414 (C.D. Cal. 1980) (multiplier
of 3.5). Consequently, the attorneys’ fees sought are plainly reasonable using a lodestar cross-
check.
V. COUNSEL’S EXPENSES ARE REASONABLE AND WERE
NECESSARILY INCURRED TO ACHIEVE THE BENEFIT OBTAINED
In addition to an award of attorneys’ fees, attorneys who create a common fund for the
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benefit of a class are also entitled to payment of reasonable litigation expenses and costs from
Neutrogena. Synthroid, 264 F.3d at 722; Cont’l Ill., 962 F.2d at 570. Class Counsel in this case
have incurred expenses in the aggregate amount of $18,083.25 while prosecuting the action, and
these expenses are set forth in the Todzo Decl. at ¶¶22, Exhibit 6; Scott Decl. at ¶3.
The appropriate analysis to apply in deciding which expenses are compensable in a
common fund case of this type is whether the particular costs are of the type typically billed by
attorneys to paying clients in the marketplace. Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.
1994) (“Harris may recover as part of the award of attorney’s fees those out-of-pocket expenses
that ‘would normally be charged to a fee paying client.’”); see also In re Media Vision Tech. Sec.
Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996). Therefore, it is proper to reimburse reasonable
expenses even though they are greater than taxable costs. Id.; see also Bratcher v. Bray-Doyle
Indep. Sch. Dist. No. 42 of Stephens County, Okla., 8 F.3d 722, 725-26 (10th Cir. 1993)
(expenses reimbursable if they would normally be billed to client); Abrams v. Lightolier Inc., 50
F.3d 1204, 1225 (3d Cir. 1995) (expenses recoverable if customary to bill clients for them);
Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993) (“Attorneys may be
compensated for reasonable out-of-pocket expenses incurred and customarily charged to their
clients, as long as they ‘were incidental and necessary to the representation’ of those clients.”).
The categories of expenses for which Class Counsel seek reimbursement are the type of expenses
routinely charged to hourly paying clients and should, therefore, be reimbursed, here, from
Defendant.
Among other things, Class Counsel incurred costs while performing computerized
research. These are the charges for computerized factual and legal research services such as
LexisNexis and Westlaw. It is standard practice for attorneys to use LexisNexis and Westlaw to
assist them in researching legal and factual issues and reimbursement is proper. See Media
Vision, 913 F. Supp. at 1371; In re Am. Bus. Fin. Servs. Inc. Noteholders Litig., No. 05-232,
2008 WL 4974782 (E.D. Pa. Nov. 21, 2008) (online legal research reimbursable); New England
Health Care Employees Pension Fund v. Fruit of the Loom, 234 F.R.D. 627 (W.D. Ky. 2006)
(electronic database and computer research charges are reimbursable). Indeed, courts recognize
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that these tools create efficiencies in litigation and, ultimately, save clients and the class money.
See Cont’l Ill., 962 F.2d at 570. In approving expenses for computerized research, the court in
Gottlieb v. Wiles, 150 F.R.D. 174, 186 (D. Colo. 1993), rev’d and remanded on other grounds
sub nom. Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994), underscored the time-saving attributes
of computerized research as a reason reimbursement should be encouraged. The court also noted
that fee-paying clients reimburse counsel for computerized legal and factual research. Wiles, 150
F.R.D. 174.
In addition, Class Counsel were required to travel in connection with this case. The
expenses in this category are reasonable in amount, and are properly charged against the fund
created. See Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240, 1244 (9th Cir. 1982), cert.
granted, judgment vacated, 461 U.S. 952 (1983); In re McDonnell Douglas Equip. Leasing Sec.
Litig., 842 F. Supp. 733, 746 (S.D.N.Y. 1994); Genden v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 741 F. Supp. 84, 86 (S.D.N.Y. 1990).
Because these expenses were all necessarily incurred by Class Counsel in the course of
prosecuting this action, they should be paid from the Settlement Fund.
VI. THE COURT SHOULD APPROVE THE PAYMENT OF INCENTIVE
AWARDS TO THE CLASS REPRESENTATIVES AS PROVIDED FOR IN
THE SETTLEMENT
Incentive awards for class representatives promote the public policy of encouraging
individuals to undertake the responsibility of representative lawsuits. The efforts of the Class
Representatives in this case – Desiree Stephenson, Marni Haber, and Karva Tam – were
instrumental in achieving the Settlement on behalf of the Class and justify the awards requested
here. The Class Representatives came forward to prosecute this litigation for the benefit of the
Class as a whole. These Class Representatives sought successfully to remedy a widespread
wrong and have conferred valuable benefits upon their fellow Class Members. The Class
Representatives provided a valuable service to the Class by: (1) providing information and input
in connection with the drafting of the complaints; (2) overseeing the prosecution of the litigation;
(3) consulting with Class Counsel; and (4) offering advice and direction at critical junctures,
including the Settlement of the litigation. A $1,000 incentive award for Plaintiff Stephenson and
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$500 each for Plaintiffs Haber and Tam in recognition of their services to the Class is modest
under the circumstances, and well in line with awards approved by federal courts in California
and elsewhere. Barbosa v. Cargill Meat Solutions Corp., No. 1:11–cv–00275, 2013 WL
3340939 (E.D. Cal. July 2, 2013) (“‘Courts routinely approve incentive awards to compensate
named plaintiffs for the services they provide and the risks they incurred during the course of the
class action litigation.’”); see also McGee v. Continental Tire N. Am., Inc., Civ. No. 06-6234,
2009 WL 539893, at *18 (D.N.J. Mar. 4, 2009) (quoting In re Lorazepam & Clorazepate
Antitrust Litig., 205 F.R.D. 369, 400 (D.D.C. 2002)) (“Incentive awards are ‘not uncommon in
class action litigation and particularly where ... a common fund has been created for the benefit
of the entire class.’”); In re American Investors Life Ins. Co. Annuity Mktg. and Sales Practices
Litig., 263 F.R.D. 226, 245 (E.D. Pa. 2009) (awarding 10 representative plaintiffs incentive
payments in the amounts of $10,500 each and 2 representative plaintiffs $5,000 each, for a total
of $115,000, finding those amounts to be “reasonable compensation considering the extent of the
named plaintiffs’ involvement and the sacrifice of their anonymity”); Bezio v. Gen. Elec. Co.,
655 F. Supp. 2d 162, 168 (N.D.N.Y. 2009) (incentive awards in the amount of $5,000 each are
“within the range of awards found acceptable for class representatives”).
Accordingly, Class Counsel respectfully requests that the incentive awards provided for
in the Settlement Agreement be approved.
VII. CONCLUSION
From the beginning, Plaintiffs and Class Counsel were faced with determined adversaries
represented by experienced, highly regarded counsel. Without any assurance of success,
Plaintiffs and their counsel pursued this litigation to a successful conclusion. Accordingly, we
respectfully submit that for the reasons set forth above and in the Declarations, the Court should
award Class Counsel’s request for attorneys’ fees and expenses of $500,000. The Court should
also grant the requests of Class Representatives for incentive awards in the aggregate amount of
$2,000.
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DATED: July 17, 2013 Respectfully submitted,
LEXINGTON LAW GROUP
By:
/s/ Mark N. Todzo
Mark N. Todzo (State Bar No. 168389)
Victoria Hartanto (State Bar No. 259833)
LEXINGTON LAW GROUP
503 Divisadero Street
San Francisco, CA 94117-2212
Telephone: (415) 913-7800
Facsimile: (415) 759-4112
mtodzo@lexlawgroup.com
vhartanto@lexlawgroup.com
Christopher M. Burke (State Bar No. 214799)
Hal D. Cunningham (State Bar No. 243048)
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
707 Broadway, Suite 1000
San Diego, CA 92101
Telephone: (619) 233-4565
Facsimile: (619) 233-0508
cburke@scott-scott.com
hcunningham@scott-scott.com
