Westley et al v. Oclaro, Inc. et al

MOTION for Attorney Fees and Expenses and Memorandum of Points and Authorities in Support Thereof

N.D. Cal.June 23, 2014

Defendants. Lead Case No. Cl 1-3176-EMC (Derivative Action) DATE: July 31, 2014 TIME 1:30 p.m. CTRM: Courtroom 5, 17th Floor The Honorable Edward M. Chen In re OCLARO, INC. DERIVATIVE LITIGATION This Document Relates To: Westley v. Oclaro, Inc., et al., Cl 1-02448-EMC. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBBINS GELLER RUDMAN & DOWD LLP SHAWN A. WILLIAMS (213113) SUNNY S. SARKIS (258073) Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415/288-4545 415/288-4534 (fax) shawnw@rgrdlaw.com ssarkis@rgrdlaw.com - and - JEFFREY D. LIGHT (159515) JULIE A. KEARNS (246949) 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) jeffl@rgrdlaw.com jkearns@rgrdlaw.com Lead Counsel for Plaintiffs [Additional counsel appear on signature page.] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CURTIS AND CHARLOTTE WESTLEY, ) No. C11-02448-EMC Individually and on Behalf of All Others ) and related consolidated action Similarly Situated, ) (Lead Case No. C11-3176-EMC) (Derivative Action) Plaintiffs, ) vs. OCLARO, INC., et al., NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 950638_2 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page1 of 40 1 2 3 4 5 6 7 8, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 950638_2 TABLE OF CONTENTS Page I . INTRODUCTION ...............................................................................................................1 II. AWARD OF ATTORNEYS' FEES ....................................................................................4 A. A Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys' Fees in Common Fund Cases ............................ 4 B. A Percentage Fee of 25% of the Fund Created Is Reasonable in This Case ........... 6 1. The Result Achieved ...................................................................................6 2. The Risks of the Litigation and the Novelty and Difficulty of the Questions Presented ..................................................................................... 7 3. The Skill Required and the Quality and Efficiency of the Work ..............11 4. The Contingent Fee Nature of the Case and the Financial Burden Carried by Lead Counsel ...........................................................................12 5. A 25% Fee Award Is Consistent With the Market Rate in Similar Complex, Contingent Litigation ................................................................13 C. Reaction of the Class Supports Approval of the Attorneys' Fees Requested .......15 D. The Requested Fee Is Reasonable Under a Lodestar Cross-Check Analysis........15 III. LEAD COUNSEL'S EXPENSES ARE REASONABLE AND WERE NECESSARILY INCURRED TO ACHIEVE THE BENEFIT OBTAINED ..................16 IV . CONCLUSION .................................................................................................................17 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - Cl l-02448-.EMC - i - Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page2 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 950638 2 TABLE OF AUTHORITIES Page I CASES Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995) ....................................................................................................16 Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221 (5th Cir. 2009) .....................................................................................................2 Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) .................................................................................................13 Arenson v. Bd. of Trade, 372 F. Supp. 1349 (N.D. Ill. 1974) ..........................................................................................11 Backman v. Polaroid Corp., 910 F.2d 10 (1st Cir. 1990) ......................................................................................................13 Behrens v. Wometco Enters., Inc., 118 F.R.D. 534 (S.D. Fla. 1988), aff'd, 899 F.2d 21 (1 lth Cir. 1990) ............................................................................................6 Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979) ....................................................................................................13 Blum v. Stenson, 465 U.S. 886 (1984) ........................................................................................................4, 5, 14 Bratcher v. Bray-Doyle Indep. Sch. Dist. No, 42, 8 F.3d 722 (10th Cir. 1993) .....................................................................................................16 Brown v. Phillips Petroleum Co., 838 F.2d 451 (10th Cir. 1988) ...................................................................................................5 Camden I Condo. Ass 'n v. Dunkle, 946 F.2d 768 (1lth Cir. 1991) ...................................................................................................5 Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885) ..................................................................................................................4 Churchill Vill., L.L.C. v. GE, 361 F.3d 566 (9th Cir. 2004) ..................................................................................................... 8 Clark v. Lomas & Nettleton Fin. Corp., 79 F.R.D. 641 (N.D. Tex. 1978), vacated on other grounds, 625 F.2d 49 (5th Cir. 1980) ...............................................................................9 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - ii - Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page3 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 Page Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000) ........................................................................................................5 Goldstein v. MCI WorldCom, 340 F.3d 238 (5th Cir. 2003) .....................................................................................................9 Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994) .....................................................................................................5 Harman v. Lyphomed, Inc., 945 F.2d 969 (7th Cir. 1991) .....................................................................................................5 Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994) .......................................................................................................16 Hensley v. Eckerhart, 461 U.S. 424 (1983) ..................................................................................................................6 In re Alstom SA Sec. Litig., 741 F. Supp. 2d 469 (S.D.N.Y. 2010) .....................................................................................13 In re Apple Computer Sec. Litig., No. C-84-20148(A)-JW, 1991 U.S. Dist. LEXIS 15608 (N.D. Cal. Sept. 6, 1991) .........................................................................................................13 In re BankAtlantic Bancorp, Sec. Litig., No. 07-61542-CIV-UNGARO, 2011 U.S. Dist. LEXIS 48057 (S.D. Fla. Apr. 25, 2011), aff'd sub nom. Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713 (11th Cir. 2012) ...................................................13 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) .....................................................................................................6 In re Crazy Eddie Sec. Litig., 824 F. Supp. 320 (E.D.N.Y. 1993) ..........................................................................................15 In re Delphi Corp. Sec., 248 F.R.D. 483 (E.D. Mich. 2008) ............................................................................................ 3 In re Equity Funding Corp. 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-DT(RCx), 2005 U.S. Dist. LEXIS 13627 (C.D. Cal. June 10, 2005) .............................................................................................. 8, 11, 15 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - iii Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page4 of 40 1 2 3 4 5 6 7 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 Page In re Ikon Office Solutions, Inc., 194 F.R.D. 166 (E.D. Pa. 2000) ......................................................................................8, 9, 14 In re JDS Uniphase Corp. Sec. Litig., No. C-02-1486 CW (EDL), 2007 WL 4788556 (N.D. Cal. Nov. 27, 2007) .......................................................................................................12 In re King Res. Co. Sec. Litig., 420 F. Supp. 610 (D. Colo. 1976) ...............................................................................6, 7, 8, 11 In re MD. C. Holdings Sec. Litig., No. CV 89-0090 E (M), 1990 U.S. Dist. LEXIS 15488 (S.D. Cal. Aug. 30, 1990) ........................................................................................................15 In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ...................................................................................................15 In re Omnivision Techs., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) ...............................................................................6, 16 In re Oracle Corp. Sec. Litig., No. C 01-00988 SI, 2009 U.S. Dist. LEXIS 50995 (N.D. Cal. June 16, 2009), aff'd, 627 F.3d 376 (9th Cir. 2010) ..............................................12 In re Prudential-Bache Energy Income P'ships Sec. Litig., MDL No. 888, 1994 U.S. Dist. LEXIS 6621 (E.D. La. May 18, 1994) ..........................................................................................................12 In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001) .......................................................................................11 In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291 (9th Cir. 1994) .......................................................................................4, 6, 7, 12 In re Xcel Energy, Inc., 364 F. Supp. 2d 980 (D. Minn. 2005) ............................................................................7, 13, 14 Kirchoff v. Flynn, 786 F.2d 320 (7th Cir. 1986) ..................................................................................................... 5 Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358 (S.D.N.Y. 2002) ...............................................................................11, 16 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - CI 1-02448-EMC - iv Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page5 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 95063 8 2 Page Miller v. Woodmoor Corp., No. 74-F-988, 1978 U.S. Dist. LEXIS 15234 (D. Colo. Sept. 28, 1978) ...........................................................................................................9 Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235 (S.D.N.Y. 1993) ..........................................................................................17 Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247 (2010) ................................................................................................................13 Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) .............................................................................................4, 5, 6 Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000) ................................................................................................... 6 Robbins v. Koger Props., 116 F.3d 1441 (11th Cir. 1997) ...............................................................................................13 Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ...................................................................................................4 Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993) .....................................................................................................5 Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993) ...................................................................................................4, 6 Trustees v. Greenough, 105 U.S. 527 (1882) ..................................................................................................................4 Vincent v. Hughes Air West, Inc., 557 F.2d 759 (9th Cir. 1977) .....................................................................................................4 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) ................................................................................... 5, 7, 13, 16 STATUTES, RULES AND REGULATIONS Federal Rules of Civil Procedure Rule1 ......................................................................................................................................... 7 Rule30(b)(6) .............................................................................................................................3 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C1 1-02448-EMC -v Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page6 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 Page I SECONDARY AUTHORITIES Charles Silver, Due Process and the Lodestar Method: You Can't Get Therefrom Here, 74 Tul. L. Rev. 1809 (June 2000) ..............................................................................................6 Denise N. Martin, Vinita M. Juneja, Todd S. Foster, Frederick C. Dunbar, Recent Trends IV: What Explains Filings and Settlements in Shareholder Class Actions? (NERA Nov. 1996) ............................................14 Dr. Renzo Comolli and Svetlana Starykh, Recent Trends in Securities Class Action Litigation: 2013 Full-Year Review, Large Settlements Get Larger; Small Settlements Get Smaller (NERA Jan. 21, 2014) ...................................................................................................................14 Dr. Renzo Comolli, Sukaina Klein, Dr. Ronald I. Miller, and Svetlana Starykh, Recent Trends in Securities Class Action Litigation: 2012 Full Year Review (NERA Jan. 29, 2013) ................................................................................9 Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237 (Oct. 8, 1985) ................................................................................................... 5 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - vi - Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page7 of 40 I TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that pursuant to an order of this Court dated May 5, 2014, on July 31, 2014, at 1:30 p.m., in the Courtroom of the Honorable Edward M. Chen, United States District Judge, Northern District of California, at the Phillip Burton United States Courthouse, 450 Golden Gate Avenue, San Francisco, California, Lead Counsel will and hereby does move this Court for an order awarding Lead Counsel attorneys' fees of 25% of the Settlement Fund plus expenses incurred in the prosecution of the Litigation, plus interest. This motion is based upon the attached Memorandum of Points and Authorities in Support of Motion for an Award of Attorneys' Fees and Expenses, the previously filed Declaration of Shawn A. Williams in Support of Unopposed Motion for Preliminary Approval of Class Action Settlement ("Williams Decl."), the Declaration of Shawn A. Williams Filed on Behalf of Robbins Geller Rudman & Dowd LLP in Support of Application for Award of Attorneys' Fees and Expenses ("Lead Counsel's Fee and Expense Decl."), the Declaration of Nashira Washington Re A) Mailing of the Notice of Proposed Settlement of Class Action and the Proof of Claim and Release Form, B) Publication of the Summary Notice, and C) Internet Posting ("Washington Decl."), the Amended Stipulation of Settlement dated as of April 30, 2014 ("Stipulation"), all other pleadings and matters of record, and such additional evidence and testimony as may be presented before or at the hearing. MEMORANDUM OF POINTS AND AUTHORITIES II. INTRODUCTION Lead Counsel have succeeded in obtaining a $3,700,000 cash settlement for the benefit of Members of the Class. 1 The substantial and certain recovery obtained for the Class was achieved solely through the skill, work, tenacity, and effective advocacy of Lead Counsel in the face of considerable risk. 2 As compensation for their efforts in achieving this result, Lead Counsel seek an 1 All capitalized terms not defined herein shall have the same meanings set forth in the Amended Stipulation of Settlement dated April 30, 2014 ("Stipulation" or "Settlement"). 2 Submitted herewith in support of approval of the proposed Settlement is the Notice of Motion and Motion for (1) Final Approval of Class Action Settlement; and (2) Approval of the Plan of Allocation of Settlement Proceeds and Memorandum of Points and Authorities in Support thereof (the "Settlement Brief'). The Williams Declaration fully describes the history of the Litigation, the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 950638_2 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C1 1-02448-EMC - 1 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page8 of 40 I award of attorneys ' fees of 25% of the Settlement Fund, plus expenses incurred in the prosecution of the Litigation in the amount of $114,945 .53, plus interest at the same rate and for the same period of ~ time as that earned by the Settlement Fund until paid. The requested fee is consistent with the Ninth Circuit ' s 25% "benchmark " fee in similar actions, numerous decisions in this Circuit , and decisions throughout the United States. The amount requested is warranted in light of the substantial recovery obtained for the Class, the extensive efforts of counsel in obtaining this highly favorable result, and the significant risks in bringing and prosecuting this action. This Litigation was prosecuted under the provisions of the Private Securities Litigation Reform Act of 1995 ("PSLRA ") and, therefore , was extremely risky and difficult from the outset. The effect of the PSLRA is to make it harder for investors to bring and successfully conclude securities class actions . Lead Counsel and Lead Plaintiff were mindful of the fact that in this post- PSLRA environment , a greater percentage of cases are being dismissed than ever before, amid defendants ' constant attempts to push the envelope and contents of the PSLRA. As retired Supreme Court Justice Sandra Day O ' Connor recognized: "To be successful , a securities class-action plaintiff must thread the eye of a needle made smaller and smaller over the years by judicial decree and congressional action." Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 235 (5th Cir. 2009). 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 In addition to the significant risks, the prosecution of this Litigation required great skill and extensive effort by Lead Counsel . Lead Counsel marshaled considerable resources and committed substantial amounts of time and expense in the prosecution of this Litigation. As set forth in the Williams Declaration , Lead Counsel conducted an extensive investigation, conducted and oversaw detailed investigative interviews of 26 witnesses , including former employees of the defendant corporation , Oclaro, Inc. ("Oclaro " or the "Company"), filed three detailed complaints, successfully, in part , opposed Defendants ' repeated and comprehensive attempts to dismiss Lead Plaintiff ' s claims at the pleading state, consulted with an economic expert , conducted targeted yet thorough discovery claims asserted , the investigation undertaken , the negotiation and substance of the Settlement and the substantial risks of the Litigation. NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC -2 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page9 of 40 on critical questions of fact related to the merits of the case, reviewed and analyzed over 220,000 pages of documents produced by Defendants, and multiple third parties in response to Lead Plaintiff's discovery requests, and conducted two Federal Rule of Civil Procedure 30(b)(6) depositions. In total, Lead Counsel spent more than 4,350 hours of attorney and paraprofessional time resulting in a lodestar of $1,980,448.00. As a result, the requested fee of 25% or $925,000 represents less than 50% of counsel's lodestar. The parties also participated in extensive and arduous settlement negotiations, including an all-day mediation session with the Honorable Layn R. 8 Phillips (Ret.), a highly respected mediator with extensive experience in the mediation of complex 9 class actions. See, e.g., See In re Delphi Corp. Sec., 248 F.R.D. 483, 498 & n.14 (E.D. Mich. 2008) 10 (recognizing "the outstanding work done by Judge Phillips" in settlement negotiations and "the 11 added benefit of the insight and considerable talents of [this] former federal judge who is one of the 12 most prominent and highly skilled mediators of complex actions"). 13 Lead Counsel undertook the representation of the Class on a contingent fee basis and no 14 payment has been made to Lead Counsel to date for their services or for the Litigation expenses they 15 have advanced on behalf of the Class. Lead Counsel firmly believe that the Settlement is the result 16 of their diligent and effective advocacy, as well as their reputations as attorneys who are unwavering 17 in their dedication to the interests of the Class and unafraid to zealously prosecute a meritorious case 18 through trial and subsequent appeals. In a case asserting claims based on complex legal and factual 19 issues which were vigorously opposed by highly skilled and experienced defense counsel, Lead 20 Counsel succeeded in securing a highly favorable result for the Class. 21 As discussed herein as well as in the Settlement Brief and the Williams Declaration, the 22 requested fee is fair and reasonable when considered under the applicable standards in the Ninth 23 Circuit and is well within the range of awards in class actions in this Circuit and courts nationwide, 24 particularly in view of the substantial risks of bringing and pursuing this Litigation, the extensive 25 investigation and litigation efforts, and the results achieved for the Class. Moreover, the expenses 26 requested are reasonable in amount and were necessarily incurred for the successful prosecution of 27 this Litigation. See Lead Counsel's Fee and Expense Decl., submitted herewith. 28 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 3 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page10 of 40 1 III. AWARD OF ATTORNEYS' FEES 2 A. A Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys' Fees in Common Fund Cases 3 For their efforts in creating a common fund for the benefit of the Class, Lead Counsel seek a 4 reasonable percentage of the fund recovered as attorneys' fees. The percentage method of awarding 5 fees has become an accepted, if not the prevailing method, for awarding fees in common fund cases 6 in this Circuit and throughout the United States. 7 It has long been recognized that "a private plaintiff, or his attorney, whose efforts create, 8 discover, increase or preserve a fund to which others also have a claim is entitled to recover from the 9 fund the costs of his litigation, including attorneys' fees." Vincent v. Hughes Air West, Inc., 557 10 F.2d 759, 769 (9th Cir. 1977). The purpose of this doctrine is to avoid unjust enrichment so that 11• "those who benefit from the creation of the fund should share the wealth with the lawyers whose 12 skill and effort helped create it." In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291,1300 13 (9th Cir. 1994) ("WPPSS"). This rule, known as the "common fund" doctrine, is firmly rooted in 14 15 American case law. See, e.g., Trustees v. Greenough, 105 U.S. 527 (1882); Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885). 3 ` 16 17 In Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984), the Supreme Court recognized that under 18 19 20 21 22 23 24 25 26 27 28 9506382 the common fund doctrine a reasonable fee may be based "on a percentage of the fund bestowed on the class." 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 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 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 [Pettus, 113 U.S. 116], 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). All citations and footnotes are omitted and emphasis is added, unless otherwise indicated. NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 4 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page11 of 40 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002), the Ninth Circuit expressly approved the 9 use of the percentage method in common fund cases. Moreover, supporting authority for the percentage method in other circuits is overwhelming. 4 L! Since Paul, Johnson and its progeny, district courts in this Circuit have almost uniformly shifted to the percentage method in awarding fees in common fund representative actions. The i rationale for compensating counsel in common fund cases on a percentage basis is sound. First, it is 7 consistent with the practice in the private marketplace where contingent fee attorneys are customarily compensated by a percentage of the recovery. Second, it more closely aligns the lawyers' interest in being paid a fair fee with the interest of the class in achieving the maximum possible recovery in the shortest amount of time. 5 Indeed, one of the nation's leading scholars in the field of class actions and attorneys' fees, Professor Charles Silver of the University of Texas School of Law, has concluded that the percentage method of awarding fees is the only method of fee awards that is consistent with class members' due process rights. Professor Silver notes: The consensus that the contingent percentage approach creates a closer harmony of interests between class counsel and absent plaintiffs than the lodestar method is strikingly broad. It includes leading academics, researchers at the RAND Institute for Civil Justice, and many judges, including those who contributed to the 4 Courts in other circuits favor the percentage-of-recovery approach for the award of attorneys' fees in common fund cases. Two circuits have ruled that the percentage method is mandatory in common fund cases. Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993); Camden I Condo. Ass 'n v. Dunkle, 946 F.2d 768, 774-75 (11th Cir. 1991). Other circuits and commentators have expressly approved the use of the percentage method. Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988) (citing footnote 16 of Blum recognizing both "implicitly" and "explicitly" that a percentage recovery is reasonable in common fund cases); Harman v. Lyphomed, Inc., 945 F.2d 969, 975 (7th Cir. 1991); Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 254 (Oct. 8, 1985). 5 In Kirchoff v. Flynn, 786 F.2d 320, 325-26 (7th Cir. 1986), the court stated: The contingent fee uses private incentives rather than careful monitoring to align the interests of lawyer and client. The lawyer gains only to the extent his client gains.... The unscrupulous lawyer paid by the hour may be willing to settle for a lower recovery coupled with a payment for more hours. Contingent fees eliminate this incentive and also ensure a reasonable proportion between the recovery and the fees assessed to defendants... At the same time as it automatically aligns interests of lawyer and client, rewards exceptional success, and penalizes failure, the contingent fee automatically handles compensation for the uncertainty of litigation. 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 5 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page12 of 40 1 Manual for Complex Litigation, the Report of the Federal Courts Study Committee, and the report of the Third Circuit Task Force. Indeed, it is difficult to find anyone 2 who contends otherwise. No one writing in the field today is defending the lodestar on the ground that it minimizes conflicts between class counsel and absent claimants. 3 In view of this, it is as clear as it possibly can be that judges should not apply 4 the lodestar method in common fund class actions. The Due Process Clause requires them to minimize conflicts between absent claimants and their representatives. The 5 contingent percentage approach accomplishes this. 6 I Charles Silver, Due Process and the Lodestar Method. You Can't Get Therefrom Here, 74 Tul. L. 7 IRev. 1809, 1819-20 (June 2000). 8 B. A Percentage Fee of 25% of the Fund Created Is Reasonable in This Case In Paul, Johnson, 886 F.2d at 272, the Ninth Circuit established 25% of a common fund as the "benchmark" award for attorneys' fees. See also Torrisi, 8 F.3d at 1376 (reaffirming 25% benchmark); Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (same); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 943 (9th Cir. 2011) (reaffirming 25% benchmark in a common fund case). The guiding principle in this Circuit is that a fee award be "reasonable under the circumstances." WPPSS, 19 F.3d at 1295. "The Ninth Circuit has approved a number of factors which may be relevant to the district court's determination: (1) the results achieved; (2) the risk of litigation; (3) the skill required and the quality of work; (4) the contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made in similar cases." In re Omnivision Techs., 559 F. Supp. 2d 1036, 1046 (N.D. Cal. 2007). In view of the risks in pursuing this Litigation, the highly favorable result obtained, the financial commitment of Lead Counsel, the contingent nature of the representation, and the skill of Lead Counsel, an award of 25% of the recovery obtained for the Class is entirely appropriate. 1. The Result Achieved Courts have consistently recognized that the result achieved is a major 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 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC -6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 950638_2 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page13 of 40 1 I (S.D. Fla. 1988) ("The quality of work performed in a case that settles before trial is best measured 2 I by the benefit obtained."), aff'd, 899 F.2d 21 (11th Cir. 1990). 3 Here, a substantial and certain recovery of $3.7 million in cash has been obtained through the 4 efforts of Lead Counsel at a relatively early stage of the Litigation without the substantial expense, 5 delay, risk, and uncertainty of continued litigation or the assistance of any regulatory or 6 governmental agency. Indeed, early settlements are encouraged by courts and are consistent with the 7 purposes of the Federal Rules of Civil Procedure, which "shall be construed and administered to 8 ensure the just, speedy, and inexpensive determination of every action." In re Xcel Energy, Inc., 9 364 F. Supp. 2d 980, 992 (D. Minn. 2005) (quoting Fed. R. Civ. P. 1) (emphasis in original). The 10 Xcel court, in awarding a 25% fee of an $80 million securities class action settlement (over a number 11 of objections, including a sophisticated pension fund), complimented counsel for the efficient 12 prosecution of the case and the prompt resolution of the litigation. 13 As detailed in the Settlement Brief, the Williams Declaration, and the Joint Submission there 14 were significant legal and factual roadblocks to obtaining a more favorable outcome in this 15 Litigation. Despite these obstacles to recovery, Lead Counsel secured a sizeable recovery for the 16 benefit of the Class. As a result of this Settlement, Class Members will receive compensation for 17 their losses in Oclaro common stock now and avoid the substantial expense, delay, and uncertainty 18 of continued litigation. 19 2. The Risks of the Litigation and the Novelty and Difficulty of the Questions Presented 20 21 Numerous cases have recognized that risk as well as the novelty and difficulty of the issues 22 presented are important factors in determining a fee award. E.g., Vizcaino, 290 F.3d at 1048; 23 WPPSS, 19 F.3d at 1299-1301. Uncertainty that an ultimate recovery would be obtained is highly 24 relevant in determining risk. WPPSS, 19 F.3d at 1300. As the court aptly observed in King Res.: 25 26 27 28 9506382 The litigation also involved unique and substantial issues of law in the technical area of SEC Rule l Ob-5, ... difficult, complex and oft-disputed class action questions, and difficult questions regarding computation of damages. 6 See Lead Plaintiff Connecticut Laborers' Pension Fund and Defendant Oclaro, Inc., et al.'s Joint Submission Re: March 25, 2014 Order Re Supplemental Briefing for Plaintiffs' Motion for Preliminary Approval ("Joint Submission") (Dkt. No. 181). NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 7 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page14 of 40 1 * * * 2 In evaluating the services rendered in this case, appropriate consideration must be given to the risks assumed by plaintiffs' counsel in undertaking the 3 litigation. The prospects of success were by no means certain at the outset, and indeed, the chances of success were highly speculative and problematical. 4 420 F. Supp. at 632, 636-37; see also In re Heritage BondLitig. v. U.S. Trust Co. of Tex., N.A., No. 5 02-ML-1475-DT(RCx), 2005 U.S. Dist. LEXIS 13627, at *44 (C.D. Cal. June 10, 2005) ("The risks 6 assumed by Class Counsel, particularly the risk of non-payment or reimbursement of expenses, is a 7 factor in determining counsel's proper fee award. "). 8 There is no question that from the outset this Litigation presented a number of sharply 9 contested issues of both fact and law and that Lead Plaintiff faced formidable defenses to liability 10 and damages. This class action involved complex legal and factual issues under the federal 11 securities laws. Throughout the Litigation, Defendants have adamantly denied liability and asserted 12 that they had absolute defenses to Lead Plaintiff's claims. See Churchill Vill., L.L.C. v. GE, 361 13 F.3d 566, 576 (9th Cir. 2004) (concluding that district court properly weighed risk when it concluded 14 defendant's belief that it had strong case on merits supporting finding of risk). 15 As discussed in the Williams Declaration and the Settlement Brief, substantial risks and 16 uncertainties in this type of litigation, and in this case in particular, made it far from certain that a 17 18 recovery, let alone $3.7 million, would ultimately be obtained. From the outset, this post-PSLRA action was an especially difficult and highly uncertain securities case, with no assurance whatsoever 19 20 that the Litigation would survive Defendants' attacks on the pleadings, motion(s) for summary judgment, trial and appeal. As the court noted in In re Ikon Office Solutions, Inc., 194 F.R.D. 166 21 22 (E.D. Pa. 2000), "[t]here were the legal obstacles of establishing scienter, [and] damages, causation .... The court also acknowledges that securities actions have become more difficult from 23 24 a plaintiff's perspective in the wake of the PSLRA.... The Act imposes many new procedural 25 hurdles.... It also substantially alters the legal standards applied to securities fraud claims in ways 26 27 28 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC -8 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page15 of 40 that generally benefit defendants rather than plaintiffs." Id. at 194-95. The court's statement in Ikon is certainly applicable here. The application of the PSLRA to this Litigation posed significant risks to Lead Plaintiffs ability to survive Defendants' motions to dismiss. In fact, after Congress passed the PSLRA, courts in this Circuit and across the country have dismissed cases at the pleading stage in response to defendants' arguments that the complaints do not meet the PSLRA's heightened pleading standards making it clear that the risk of no recovery (and hence no fee) has increased exponentially. See Goldstein v. MCI WorldCom, 340 F.3d 238, 241 (5th Cir. 2003) (affirming dismissal of securities fraud action against Bernard Ebbers and WorldCom even though Ebbers was later convicted criminally). A study of securities class actions filed and resolved between January 2000 and December 2012, found that 42% of 2012 cases filed in the Ninth Circuit were dismissed in defendants' favor. See Dr. Renzo Comolli, Sukaina Klein, Dr. Ronald I. Miller, and Svetlana Starykh, Recent Trends in Securities Class Action Litigation: 2012 Full Year Review, at 18 (Figure 16) (NERA Jan. 29, 2013). Lead Plaintiff faced the risk of dismissal at the pleading stage in this Litigation. Indeed, as discussed below, Lead Plaintiff engaged in significant efforts to get past the pleading stage. Lead Plaintiffs claims were initially dismissed by the Court for failure to adequately plead that the May and June 2010 statements that customer demand was increasing were not adequately alleged as false because Lead Plaintiff had not shown the order slowdown in April that Defendants disclosed on July 29, 2010 was material. March 27, 2012 Order Granting Defendants' Motion to Dismiss. Dkt. No. 58. Thereafter, Lead Plaintiff filed its Second Amended Complaint for Violation of the Federal Securities Laws ("SAC"), specifically addressing the Court's concerns as articulated in the 7 Even before the passage of the PSLRA, courts had noted that a securities case "by its very nature, is a complex animal." Clark v. Lomas & Nettleton Fin. Corp., 79 F.R.D. 641, 654 (N.D. Tex. 1978), vacated on other grounds, 625 F.2d 49 (5th Cir. 1980); see also Miller v. Woodrnoor Corp., No. 74-F-988, 1978 U.S. Dist. LEXIS 15234, at *11-*12 (D. Colo. Sept. 28, 1978): The benefit to the class must also be viewed in its relationship to the complexity, magnitude, and novelty of the case... Despite years of litigation, the area of securities law has gained little predictability. There are few "routine" or "simple" securities actions. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WA 28 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC -9 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page16 of 40 1 March 27, 2012 Order regarding the falsity of Defendants' May and June 2010 statements. On 2 May 25, 2012, Defendants filed a Motion to Dismiss the SAC. Dkt. No. 63. On September 21, 3 2012, the Court issued an Order Granting Defendants' Motion to Dismiss the SAC (the "September 4 21, 2012 Order"). Dkt. No. 79. The September 21, 2012 Order found that the SAC had adequately 5 pleaded falsity and loss causation; however, the SAC failed to adequately allege scienter. 6 Thereafter, on October 4, 2012, Lead Plaintiff filed a Motion for Leave to File a Motion for 7 Reconsideration of the September 21, 2012 Order granting Defendants' Motion to Dismiss the SAC 8 (the "Motion for Reconsideration"). Dkt. No. 81. On January 10, 2013, the Court issued an Order 9 Granting in Part and Denying in Part Plaintiffs' Motion for Leave to File a Motion for 10 Reconsideration (the "January 10, 2013 Order"). Dkt. No. 107. At the conclusion of its January 10, 11 2013 Order, the Court mandated that the parties file a joint status conference statement, in which 12 they were to discuss the possibility of limited discovery focused on scienter (including the size of the 13 April 2010 order slowdown), and also invited Defendants to file an early motion for summary 14 judgment on that single issue. Id. 15 On March 1, 2013, simultaneous with Lead Plaintiff's discovery efforts, Lead Plaintiff filed a 16 Third Amended Complaint for Violation of the Federal Securities Laws ("TAC"). Dkt. No. 121. 17 The TAC included Lead Plaintiff's amendments to the SAC relating solely to the only remaining 18 issue of Defendants' scienter with respect to the July and August 2010 false statements. On May 30, 19 2013, the Court entered an Order granting Defendants' Motion to Dismiss the TAC (the "May 30, 20 2013 Order"), finding that Lead Plaintiff had failed to adequately plead scienter with respect to 21 Defendants' July and August 2010 false statements, and dismissed the TAC with prejudice as it 22 related to those statements. Dkt. No. 157. 23 There is no question that absent settlement, Lead Counsel in this case faced the substantial 24 risk of years of additional litigation with no guarantee of any compensation, even if they prevailed 25 26 27 28 950638_2 on the merits. Lead Counsel achieved a significant and certain recovery for the Class in the face of very substantial risks. As a result, the requested fee is fully justified. NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 10 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page17 of 40 1 3. The Skill Required and the Quality and Efficiency of the Work 2 The "'prosecution and management of a complex national class action requires unique legal 3 skills and abilities." Heritage Bond, 2005 U.S. Dist. LEXIS 13627, at *39• Lead Counsel is a 4 nationally recognized leader in the fields of securities class actions and complex litigation. See 5 Exhibit G to Lead Counsel's Fee and Expense Decl., submitted herewith. The recovery obtained for 6 the Class is the direct result of the significant efforts of highly skilled and specialized attorneys who 7 possess substantial experience in prosecuting complex securities class actions. See 8 www.rgrdlaw.com Lead Counsel's reputation as attorneys who will zealously carry a meritorious 9 case through the trial and appellate levels, as well as its demonstrable ability to vigorously develop 10 the evidence in this Litigation, enabled it to negotiate the highly favorable recovery for the benefit of 11 the Class under difficult circumstances. Unlike those cases where plaintiffs' counsel were able to 12 "free ride" on the work of others (such as the SEC or other governmental agency), here Lead 13 Counsel - and only Lead Counsel - developed the case against Defendants. Courts have regularly 14 recognized that the efforts of plaintiffs' counsel in achieving a favorable settlement should be 15 accorded greater weight when achieved without the benefit of a governmental investigation. 8 16 The quality of opposing counsel is also important in evaluating the quality of the work done 17 by Lead Counsel. See, e.g., In re Equity Funding Corp. Sec. Litig., 438 F. Supp. 1303, 1337 (C.D. 18 Cal. 1977); King Res., 420 F. Supp. at 634; Arenson v. Bd. of Trade, 372 F. Supp. 1349, 1354 (N.D. 19 Ill. 1974). Lead Counsel were opposed in this Litigation by very skilled and highly respected 20 counsel from Alston & Bird LLP, a law firm with a reputation for vigorous advocacy in the defense 21 of complex civil cases such as this. In the face of this formidable opposition, Lead Counsel were 22 23 8 See In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706, 735 (E.D. Pa. 2001) (in awarding 25% of a $193 million settlement fund, the court noted the skill and efficiency of plaintiffs' counsel and outstanding results "in a litigation that was far ahead of public agencies like the [SEC] and the United States Department of Justice, which long after the institution of this litigation awakened to the concerns that plaintiffs' counsel first identified"); Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 371 (S.D.N.Y. 2002) (In awarding 33-1/3% of the settlement fund, the court noted, "[i]n this Action, Plaintiffs' Class Counsel did not `piggy back' on any prior governmental action.... Plaintiffs' Class Counsel developed, litigated and successfully negotiated this Action by themselves, expending substantial time and effort. "). 24 25 26 27 28 950638_2 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 11 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page18 of 40 able to develop their case so as to engage Defendants and to settle the Litigation for a substantial 2 I sum of money under the circumstances. 3 4. The Contingent Fee Nature of the Case and the Financial Burden Carried by Lead Counsel 4 A determination of a fair fee must include consideration of the contingent nature of the fee 5 and the difficulties which were overcome in obtaining the Settlement. 6 It is an established practice in the private legal market to reward attorneys for 7 taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases. See Richard Posner, Economic Analysis ofLaw 8 §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 9 profession as a legitimate way of assuring competent representation for plaintiffs who could not afford to pay on an hourly basis regardless whether they win or lose. 10 WPPSS, 19 F.3d at 1299. 11 In awarding counsel's attorneys' fees in In re Prudential-Bache Energy Income P'ships Sec. 12 Litig., MDL No. 888, 1994 U.S. Dist. LEXIS 6621 (E.D. La. May 18, 1994), the court noted the 13 risks that plaintiffs' counsel had taken: 14 Although today it might appear that risk was not great based on Prudential 15 Securities' global settlement with the Securities and Exchange Commission, such was not the case when the action was commenced and throughout most of the 16 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 17 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. 18 Id. at *16. 19 Indeed, the risk of no recovery in complex cases of this type is very real. There are 20 21 22 23 24 25 26 27 28 950638_2 numerous class actions in which plaintiffs' counsel expended thousands of hours and yet received no remuneration whatsoever despite their diligence and expertise. For example, in In re Oracle Corp. Sec. Litig., No. C 01-00988 SI, 2009 U.S. Dist. LEXIS 50995 (N.D. Cal. June 16, 2009), aff'd, 627 F.3d 376 (9th Cir. 2010), a case that Lead Counsel prosecuted, the court granted summary judgment to defendants after eight years of litigation, and after plaintiff's counsel incurred some $7 million in expenses, and worked over 100,000 hours, representing a lodestar of more than $30 million. And, in a case against JDS Uniphase Corporation, after a lengthy trial involving securities claims, the jury reached a verdict in defendants' favor. See In re JDS Uniphase Corp. Sec. Litig., No. C-02-1486 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 12 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page19 of 40 CW (EDL), 2007 WL 4788556 (N.D. Cal. Nov. 27, 2007). Similarly, even the most promising 2 multi-hundred million dollar case can be eviscerated by a sudden change in the law after years of 3' litigation. See, e.g., In re Alstom SA Sec. Litig., 741 F. Supp. 2d 469,471-73 (S.D.N.Y. 2010) (after 4 completing extensive foreign discovery, 95% of plaintiffs' damages were eliminated by the Supreme 5 Court's reversal of some 40 years of unbroken circuit court precedents in Morrison v. Nat'l Austl. 6 Bank Ltd., 561 U.S. 247 (2010)). As the court in Xcel recognized, "[p]recedent is replete with 7 situations in which attorneys representing a class have devoted substantial resources in terms of time and advanced costs yet have lost the case despite their advocacy." 364 F. Supp. 2d at 994. Even plaintiffs who get past summary judgment and succeed at trial may find their judgment overturned on appeal or on a post-trial motion. 9 Because the fee in this matter was entirely contingent, the only certainties were that there would be no fee without a successful result and that such a result would be realized only after considerable and difficult effort. Lead Counsel committed significant resources of both time and money to the vigorous and successful prosecution of this action for the benefit of the Class. See Exhibit G to Lead Counsel's Fee and Expense Decl. and www.rgrdlaw.com . The contingent nature of counsel's representation strongly favors approval of the requested fee. 5. A 25% Fee Award Is Consistent With the Market Rate in Similar Complex, Contingent Litigation Courts often look to fees awarded in comparable cases to determine if the fee requested is reasonable. See Vizcaino, 290 F.3d at 1050 n.4. As demonstrated by the decisions cited in 9 See, e.g., In re BankAtlantic Bancorp, Sec. Litig., No. 07-61542-CIV-UNGARO, 2011 U.S. Dist. LEXIS 48057 (S.D. Fla. Apr. 25, 2011) (court granted defendants' judgment as a matter of law on the basis of loss causation, overturning jury verdict and award in plaintiffs favor), aff'd sub nom. Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713 (1 lth Cir. 2012); Robbins v. Koger Props., 116 F.3d 1441, 1448-49 (11th Cir. 1997) (jury verdict of $81 million for plaintiffs against an accounting firm reversed on appeal on loss causation grounds and judgment entered for defendant); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1233 (10th Cir. 1996) (Tenth Circuit overturned securities fraud class action jury verdict for plaintiffs in case filed in 1973 and tried in 1988 on the basis of 1994 Supreme Court opinion); In re Apple Computer Sec. Litig., No. C-84-20148(A)-JW, 1991 U.S. Dist. LEXIS 15608, at *1-*2 (N.D. Cal. Sept. 6, 1991) (verdict against two individual defendants, but court vacated judgment on motion for judgment notwithstanding the verdict); Backman v. Polaroid Corp., 910 F.2d 10, 18 (1st Cir. 1990) (where the class won a substantial jury verdict and motion for J.N.O.V. was denied, on appeal the judgment was reversed and the case was dismissed - after 11 years of litigation); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 309 (2d Cir. 1979) (multimillion dollar judgment reversed after lengthy trial). NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 13 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page20 of 40 1 Appendix A attached hereto, a fee of 25% or more has been repeatedly awarded by the courts in this 2 Circuit and district and in numerous other similar cases throughout the country. The court in Xcel, 3 after considering "cases from [the District of Minnesota], other districts, and [ ] attorney fee studies 4 referenced in other cases" concluded that "this factor - comparison to other cases - supports the 25% 5 requested [fee]." 364 F. Supp. 2d at 998, 999. 6 The requested fee is less than the average attorney-fee percentage granted as demonstrated by 7 an analysis of fee awards in class actions conducted in 1996 by National Economic Research 8 Associates ("NERA"), an economics consulting firm. Using data from 433 shareholder class 9 actions, the study reports on the central question of attorneys' fees: "Regardless of case size, fees 10 average approximately 32 percent of the settlement." Denise N. Martin, Vinita M. Juneja, Todd S. 11 Foster, Frederick C. Dunbar, Recent Trends IV: What Explains Filings and Settlements in 12 Shareholder Class Actions? at 12-13 (NERA Nov. 1996). Specifically, NERA examined 433 13 settlements. Of the 433 settlements, 155, or 35.8%, were in the Ninth Circuit. Id. at Table 12b. The 14 average attorney fee as a percentage of the settlement in this Circuit was 32.57%. Id. 15 The requested fee is also less than the median fee award for securities cases based on an 16 analysis of fee awards conducted in 2014 by NERA. Using data from securities class actions from 17 1996 through 2013, the study found that for settlements less than $5 million, where this Settlement 18 falls, the median fee award was 33.3% of the settlement amount. Dr. Renzo Comolli and Svetlana 19 Starykh, Recent Trends in Securities Class Action Litigation: 2013 Full-Year Review, Large 20 Settlements Get Larger; Small Settlements Get Smaller at 34, Figure 34 (NERA Jan. 21, 2014) 21 ("2014 NERA Study"). 22 Moreover, if this were a non-representative litigation, the customary fee arrangement would 23 be contingent, on a percentage basis, and in the range of 30% to 40% of the recovery. The Supreme 24 Court in Blum, stated: 25 "In tort suits, an attorney might receive one-third of whatever amount the plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery." 26 465 U.S. at 903*; Ikon, 194 F.R.D. at 194 ("in private contingency fee cases, particularly in tort 27 matters, plaintiffs' counsel routinely negotiate agreements providing for between thirty and forty 28 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 14 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page21 of 40 percent of any recovery"); In re M.D.C. Holdings Sec. Litig., No. CV 89-0090 E (M), 1990 U.S. Dist. LEXIS 15488, at *22 (S.D. Cal. Aug. 30, 1990) ("In private contingent litigation, fee contracts have traditionally ranged between 30% and 40% of the total recovery.") C. Reaction of the Class Supports Approval of the Attorneys' Fees Requested District courts in the Ninth Circuit also consider the reaction of the class when deciding ~ whether to award the requested fee. Heritage Bond, 2005 U.S. Dist. LEXIS 13627, at *48 ("The presence or absence of objections ... is also a factor in determining the proper fee award.") To date, over 21,600 copies of the Notice of Proposed Settlement of Class Action ("Notice") were mailed to potential Class Members. Washington Decl., ¶¶3-10. The Summary Notice was published in Investor's Business Daily and over the Business Wire on May 20, 2014. Id., ¶14. In addition, the Stipulation, the Notice, Proof of Claim and Release, and Order Preliminarily Approving Settlement and Providing for Notice were posted on the Claims Administrator's website. Id., ¶13. Class Members were informed in the Notice that Lead Counsel were moving the Court for attorneys' fees in an amount of 25% of the Settlement Fund and for payment of expenses in an amount not to exceed $175,000.00. Class Members were also advised of their right to object to the fee and expense request, and that such objections are required to be filed with the Court and served on counsel no later than July 7, 2014. As of the date of this memorandum, not a single Class Member has objected to counsel's fee and expense request or any other aspect of the Settlement. The lack of objection is compelling evidence that the requested fees and expenses are fair. See, e.g., In re Crazy Eddie Sec. Litig., 824 F. Supp. 320, 325 (E.D.N.Y. 1993). Moreover, a small number of objections do not stand in the way of approval of a reasonable fee. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). 10 D. The Requested Fee Is Reasonable Under a Lodestar Cross-Check Analysis Although Lead Counsel seek approval of a fee based on a percentage of the recovery, "[a] s a final check on the reasonableness of the requested fees, courts often compare the fee counsel seeks 10 If any objections are received, Lead Counsel will address them in a reply brief to be filed on or before July 17, 2014, in accordance with the Court's preliminary approval order. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 15 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page22 of 40 as a percentage with what their hourly bills would amount to under the lodestar analysis." Omnivision, 559 F. Supp. 2d at 1048. In Vizcaino, the Ninth Circuit noted that an analysis of the "lodestar method is merely a cross-check on the reasonableness of a percentage figure, and it is widely recognized that the lodestar method creates incentives for counsel to expend more hours than may be necessary on litigating a case so as to recover a reasonable fee, since the lodestar method does not reward early settlement." 290 F.3d at 1050 n.5. Here, Lead Counsel spent 4,354.15 hours of attorney and paraprofessional time prosecuting this action on behalf of the Class. The resulting lodestar is $1,980,448.00. The requested fee of 25% would equal $925,000. Thus, the requested fee represents a negative multiplier representing less than 50% of counsel's lodestar. In Vizcaino, the Ninth Circuit approved a 28% fee that resulted in a 3.65 multiplier. Id. at 1052-54 (finding multipliers ranged as high as 19.6 though most run from 1.0- 4.0); Maley, 186 F. Supp. 2d at 371 ("modest multiplier of 4.65 is fair and reasonable"). Accordingly, using counsel's lodestar as a cross-check on counsel's requested fee confirms its reasonableness. III. LEAD COUNSEL'S EXPENSES ARE REASONABLE AND WERE NECESSARILY INCURRED TO ACHIEVE THE BENEFIT OBTAINED Lead Counsel also request payment of expenses incurred by them in connection with the I prosecution of this Litigation. Lead Counsel have incurred expenses in the amount of $114,945.53 in prosecuting this Litigation. These expenses are categorized in Lead Counsel's Fee and Expense I Declaration. 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. "). Therefore, it is proper to pay reasonable expenses even though they are greater than taxable costs. Id.; see also Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 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 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 16 1 2 3 4 5 6 7 8 9 10 11' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9506382 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page23 of 40 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 counsel seek payment here are the type of expenses routinely charged to hourly clients and, therefore, should be paid out of the common fund. 7 A significant component of Lead Counsel's expenses is the cost of their economic consultant 8 and investigator. See Lead Counsel's Fee and Expense Decl., ¶6(h). Financial Markets Analysis, 9 LLC ("FMA"), an economic consulting firm that specializes in financial and economic issues that 10 typically arise in securities class actions. FMA services in this Litigation were necessary and 11 contributed to the benefits achieved for the Class. Williams Decl., ¶¶54-57. In the post-PSLRA era 12 the use of professional investigators to gather detailed fact-specific information from percipient 13 witnesses in order to plead complaints that will survive motions to dismiss is a necessity. Lead 14 Counsel engaged the services of L.R. Hodges & Associates, Ltd. ("L.R. Hodges") to assist counsel. 15 Id., ¶53. L.R. Hodges conducted a substantial amount of work on behalf of the Class. L.R. Hodges 16 was able to identify, locate, and interview numerous witnesses who had knowledge of the alleged 17 wrongdoing including former employees of Oclaro. Id. These investigators were instrumental in 18 helping Lead Plaintiff achieve this result for the benefit of the Class. Another significant expense 19 was the cost of Judge Phillips who mediated the case and provided substantial assistance in the 20 settlement of this action. 21 Other expenses include the costs of computerized research. These are the charges for 22 computerized factual and legal research services, including Courtlink, Lexis Nexis, Mealey Service, 23 PACER, Thomson Financial and Westlaw. It is standard practice for attorneys to use these services 24 to assist them in researching legal and factual issues. These services allowed counsel to access 25 Oclaro's SEC filings, perform media searches on Oclaro, and obtain analysts' reports on Oclaro. 26 IV. CONCLUSION 27 Based on the foregoing and upon the entire record herein, Lead Counsel respectfully submit 28 that the Court award attorneys' fees in the amount of 25% of the Settlement Fund, plus expenses in 9506382 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - Cl 1-02448-EMC - 17 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page24 of 40 1 the amount of $114,945.53, plus interest earned at the same rate and for the same period as that 2 earned on that portion of the Settlement Fund until paid. 3 DATED: June 23, 2014 Respectfully submitted, 4 ROBBINS GELLER RUDMAN & DOWD LLP 5 SHAWN A. WILLIAMS SUNNY S. SARKIS 6 7 s/ Shawn A. Williams 8 SHAWN A. WILLIAMS 9 Post Montgomery Center One Montgomery Street, Suite 1800 10 San Francisco, CA 94104 Telephone: 415/288-4545 11 415/288-4534 (fax) 12 ROBBINS GELLER RUDMAN & DOWD LLP 13 JEFFREY D. LIGHT JULIE A. KEARNS 14 655 West Broadway, Suite 1900 San Diego, CA 92101 15 Telephone: 619/231-1058 619/231-7423 (fax) 16 Lead Counsel for Plaintiffs 17 ROBERT M. CHEVERIE & ASSOCIATES 18 GREGORY S. CAMPORA Commerce Center One 19 333 E. River Drive, Suite 101 East Hartford, CT 06108 20 Telephone: 860/290-9610 860/290-9611 (fax) 21 HOLZER & HOLZER, LLC 22 COREY D. HOLZER 1200 Ashwood Parkway, Suite 410 23 Atlanta, GA 30338 Telephone: 770/392-0090 24 770/392-0029 (fax) 25 26 27 28 95 063 8 2 NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - CI 1-02448-EMC - 18. Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page25 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 950638_2 DYER & BERENS LLP ROBERT J. DYER III JEFFREY A. BERENS 303 East 17th Avenue, Suite 810 Denver, CO 80203 Telephone: 303/861-1764 303/395-0393 (fax) Additional Counsel for Plaintiff NOTICE OF MOTION AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - C11-02448-EMC - 19 - Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page26 of 40 APPENDIX A Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page27 of 40 2004 To The Present Cases In Which Award Of Fees Equalled Or Exceeded 25% Of The Fund Plus Expenses (with Settlement Amounts) 1. North Port Firefighters' Pension-Local Option Plan v. Fushi Copperweld, Inc., No. 3:11 - cv-00595 (M.D. Tenn. May 12, 2014) (awarded fees of 33-1/3% of $3.25 million, plus expenses); 2. Landmen Partners Inc. v. Blackstone Group, No. 08-cv-03601-HB-FM (S.D.N.Y. Dec. 18, 2013) (awarded fees of 33-1/3% of $85 million recovery, plus expenses); 3. Eshe Fund v. Fifth Third Bancorp, No. 1:08-cv-421 (S.D. Ohio Nov. 20, 2013) (awarded fees and expenses of 33-1/3% of $16 million recovery); 4. In re Constellation Energy Group, Inc. Sec. Litig., No. 1:08-cv-02854-CCB (D. Md. Nov. 4, 2013) (awarded fees of 33-1/3% of $4 million recovery, plus expenses); 5. Levine v. Atricure, Inc., No. 1:06-cv-14324-RJH (S.D.N.Y. May 27, 2011) (awarded fees of 33-1/3% of $2 million recovery, plus expenses); 6. In re Noah Educ. Holdings Ltd. Sec. Litig., No. 1:08-cv-09203 (S.D.N.Y. May 27, 2011) (awarded fees of 33-1/3% of $1.75 million recovery, plus expenses); 7. Eaton v. Halifax PLC, No. MON-L-2365-03 (Monmouth Cnty. NJ Super. Ct. May 26, 2011) (awarded fees of 33-1/3% of $8.6 million recovery, plus expenses); 8. Menkes v. Stolt-Nielsen S.A., No. 3:03CV00409(DJS) (D. Conn. Jan. 25, 2011) (awarded fees of 33-1/3% of $2 million recovery, plus expenses); 9. Moorhead v. CONSOL Energy, Inc., No. 2:03-cv-01588-TFM (W.D. Pa. May 14, 2007) (awarded fees of 33-1/3% of $2.7 million recovery; plus expenses); 10. Wade v. Bayer AG, et al., No. CT-004748-06 (Shelby County, Tenn. Cir. Ct. Dec. 7, 2006) (awarded fees of 33-1/3% of $3.7 million recovery, plus expenses); 11. In re Van der Moolen Holding N. V. Sec. Litig., No. 1:03-CV-8284 (S.D.N.Y. Dec. 6, 2006) (awarded fees of 33-1/3% of $8 million recovery, plus expenses); 12. In re Interpool, Inc. Sec. Litig., No. 3:04-cv-00321-SRC (D.N.J. Sept. 9, 2006) (awarded fees of 33-1/3% of $1 million recovery, plus expenses); 13. Denver Area Meat Cutters and Employers Pension Plan v. James L. Clayton, et al., Case No. E-19723 (Blount County Tenn. June 8, 2005) (awarded fees of 33-1/3% of $5 million recovery, plus expenses); 14. Lezin v. MiniMed, Inc., et al., Case No. BC251832 (Los Angeles Super. Ct. Aug. 10, 2004) (awarded fees of 33-1/3% of $1.25 million recovery, plus expenses); 1 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page28 of 40 15. Franks v. Cheap Tickets, Inc., et al., Civil No. 01-1-2376-08-DDD (1st Cir. Haw. July 2, 2004 (awarded fees of 33-1/3% of $1 million recovery, plus expenses); 16. Conlee v. WMS Industries, No. 1:11-cv-03503-JBZ (N.D. Ill. May 20, 2014) (awarded fees of 33% of $3.7 million recovery, plus expenses); 17. In re State Street Bank and Trust Co. Fixed Income Funds Inv. Litig., No. 1:08-cv-08235- PAC (S.D.N.Y. Sept. 6, 2012) (awarded fees of 33% of $6.25 million recovery, plus expenses); 18. Schultz v. Applica, Inc., No. 06-60149-CIV (S.D. Fla. Jan. 15, 2008) (awarded fees of 33% of $2 million recovery, plus expenses); 19. In re Canadian Superior Energy Inc. Sec. Litig., Master File No. 04- CV-02020(RO) (S.D.N.Y. Oct. 19, 2005) (awarded fees of 33% of $3.2 million recovery, plus expenses); 20. Thomas & Thomas Rodmakers Inc., et al. v. Newport Adhesives and Composites, Inc., et al., Case No. CV-99-07796-FMC(RNBx) (C.D. Cal. Oct. 17, 2005) (awarded fees of 33% of $36.25 million recovery, plus expenses); 21. Roth v. Aon Corp., No. 04-C-6835 (N.D. Ill. Nov. 18, 2009) (awarded fees of 31% of $30 million recovery, plus expenses); 22. Board of Trustees of the Operating Engineers Pension Trust v. JPMorgan Chase Bank, No. 09-cv-09333-KBF (S.D.N.Y. November 20, 2013) (awarded fees of 30% of $23 million recovery, plus expenses); 23. Fisher v. Suffolk, No. 1:11-cv-05114-SJ-RML (E.D.N.Y. Nov. 19, 2013) (awarded fees of 30% of $2.8 million recovery, plus expenses); 24. Buettgen v. Harless, No. 3:09-cv-00791-K (N.D. Tex. Nov. 13, 2013) (awarded fees of 30% of $33.75 million recovery, plus expenses); 25. Luman v. Anderson, No. 4:08-cv-00514-C-W-HFS (W.D. Mo. July 23, 2013) (awarded fees of 30% of $4.25 million recovery, plus expenses); 26. Hildenbrand v. W Holding, No. 07-1886 (JAG) (D. P.R. June 10, 2013) (awarded fees of 30% of $8.75 million recovery, plus expenses); 27. Citiline Holdings, Inc. v. iStar Fin. Inc., No. 1:08-cv-03612-RJS (S.D.N.Y. Apr. 5, 2013) (awarded fees of 30% of $29 million recovery, plus expenses); 28. In re Constar Int'l Sec. Litig., No. 03cvO5020 (E.D. Pa. Dec. 19, 2012) (awarded fees of 30% of $23.5 million recovery, plus expenses); 29. Siracusano v. Matrixx Initiatives, Inc., No. CV-04-0886-PHX-NVW (D. Ariz. Nov. 13, 2012) (awarded fees of 30% of $4.5 million recovery, plus expenses); 2 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page29 of 40 30. Winslow v. BancorpSouth, Inc., No. 3:10-cv-00463 (M.D. Tenn. Oct. 31, 2012) (awarded 30% of $29.25 million recovery, plus expenses); 31. Szymborski v. Ormat Techs., Inc., No. 3:10-CV-132-RCJ (D. Nev. Oct. 16, 2012) (awarded fees of 30% of $3.1 million recovery, plus expenses); 32. City of Ann Arbor Emps.' Ret. Sys. v. Sonoco Prods. Co., et al., No. 4:08-cv-02348- TLW-KDW (D.S.C. Sept. 7, 2012) (awarded fees of 30% of $13 million recovery, plus expenses); 33. In re Sturm, Ruger & Co., Inc. Sec. Litig., No. 3:09-cv-01293-VLB (D. Conn. Aug. 20, 2012) (awarded fees of 30% of $3 million recovery, plus expenses); 34. Local 731 I.B. of T. Excavators and Pavers Pension Trust Fund v. Swanson, No. 1:09-cv- 00799-MMB (D. Del. June 22, 2012) (awarded 30% of $25 million recovery, plus expenses); 35. In re Focus Media Holding Ltd. Litig., No. 1:07-cv-10617-LTS(GWG) (S.D.N.Y. Apr. 25, 2012) (awarded fees of 30% of $2 million recovery, plus expenses); 36. Western Wash. Laborers-Employers Pension Trust v. Panera Bread Co., et al., No. 4:08- cv-00120 ERW (E.D. Mo. June 22, 2011) (awarded fees of 30% of $5.75 million recovery, plus expenses); 37. Norfolk Cnty. Ret. Sys. v. Ustian, No. 1:07-cv-07014 (N.D. Ill. May 25, 2011) (awarded fees of 30% of $13 million recovery, plus expenses); 38. In re Orion Sec. Litig., No. 1:08-cv-01328-RJS (S.D.N.Y. Apr. 14, 2011) (awarded fees of 30% of $3.25 million recovery, plus expenses); 39. Schultz v. Tomotherapy, Inc., No. 08-cv-000314-SLC (W.D. Wis. Mar. 22, 2011) (awarded fees of 30% of $5 million recovery, plus expenses); 40. In re L.G. Philips LCD Co., Ltd. Sec. Litig., No. 1:07-cv-00909-RJS (S.D.N.Y. Mar. 17, 2011) (awarded fees of 30% of $18 million recovery, plus expenses); 41. In re Gilead Sciences Sec. Litig., No. C-03-4999-SI (N.D. Cal. Nov. 5, 2010) (awarded 30% of $8.25 million recovery, plus expenses); 42. Beach v. Healthways, Inc., No. 3:08-cv-00569 (M.D. Tenn. Sept. 27, 2010) (awarded fees of 30% of $23.6 million recovery, plus expenses); 43. In re TeleTech Litigation, No. 1:08-cv-00913-LTS (S.D.N.Y. June 11, 2010) (awarded fees of 30% of $11 million recovery, plus expenses); 44. In re PETCO Animal Supplies, Inc. S'holder Litig., No. GIC 869399 (San Diego Super. Ct. Mar. 26, 2010) (awarded fees of 30% of $16 million recovery, plus expenses); 3 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page30 of 40 45. Kelleher v. ADVO, Inc., No. 3:06-cv-01422-AVC (D. Conn. Mar. 3, 2010) (awarded fees of 30% of $12.5 million recovery, plus expenses); 46. Hawaii Structural Ironworkers Pension Trust Fund v. Calpine Corp., No. 1-04-CV- 021465 (Santa Clara Super. Ct. Feb. 3, 2010) (awarded fees of 30% of $43 million recovery, plus expenses); 47. In re Prestige Brands Holdings, Inc. Sec. Litig., No. 7:05-cv-06924-CS (S.D.N.Y. Dec. 7, 2009) (awarded fees of 30% of $11 million recovery, plus expenses); 48. Rines v. Heelys, Inc., No. 3:07-cv-01468-K (N.D. Tex. Nov. 17, 2009) (awarded fees of 30% of $7.5 million recovery, plus expenses); 49. Aviva Partners LLC v. Exide Techs., No. 3:05-cv-03098-MLC-LHG (D.N.J. June 23, 2009) (awarded fees of 30% of $13.7 million recovery, plus expenses); 50. W. Pa. Elec. Employees Pension Fund v. Candela Corp., No. 1:08-cv-10551-DPW (D. Mass. June 23, 2009) (awarded fees of 30% of $3.85 million recovery, plus expenses); 51. Crowell v. Mannatech, Inc., No. 3:07-cv-00238-K (N.D. Tex. Mar. 10, 2009) (awarded fees of 30% of $11.25 million recovery, plus expenses); 52. In re LaBranche Sec. Litig., No. 03-CV-8201(RWS) (S.D.N.Y. Jan. 22, 2009) (awarded fees of 30% of $13 million recovery, plus expenses); 53. In re OSI Pharm., Inc. Sec. Litig., No. 2:04-CV-05505-JS-WDW (E.D.N.Y. Aug. 22, 2008) (awarded fees of 30% of $9 million recovery, plus expenses); 54. In re ChoicePoint, Inc. Sec. Litig., No. 1:05-CV-00686-JTC (N.D. Ga. July 21, 2008) (awarded fees of 30% of $10 million recovery, plus expenses); 55. Cement Masons & Plasters Joint Pension Trust v. TNS Inc., No. 1:06-cv-00363-CMH- BRP (E.D. Va. June 20, 2008) (awarded fees of 30% of $3.6 million recovery, plus expenses); 56. Croker v. Carrier Access Corp., No. 1:05-cv-01011-LTB-OES (D. Colo. Jan. 25, 2008) (awarded fees of 30% of $7.4 million recovery, plus expenses); 57. In re UICI Sec. Litig., No. 3:04-CV-1149-P (N.D. Tex. Jan. 23, 2008) (awarded fees of 30% of $6.9 million recovery, plus expenses); 58. In re Terayon Commc'n Sys., Inc. Sec. Litig., No. C-00-1967-MHP (N.D. Cal. Oct. 3, 2007) (awarded fees of 30% of $15 million recovery, plus expenses); 59. In re aaiPharma Inc. Sec. Litig., No. 7:04-CV-27-D (E.D. N.C. Oct. 2, 2007) (awarded fees of 30% of $7.55 million recovery, plus expenses); L Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page31 of 40 60. In re Acclaim Entm't Sec. Litig., No. 2:03-CV-1270(JS)(ETB) (E.D.N.Y. Oct. 2, 2007) (awarded fees of 30% of $13.65 million recovery, plus expenses); 61. In re Odimo, Inc. Sec. Litig., No. 0512500 (Broward County Fla. Super. Ct. Sept. 25, 2007) (awarded fees of 30% of $1.25 million recovery, plus expenses); 62. In re eMachines, Inc. Merger Litig., No. 01-CC-00156 (Orange County Super. Ct. July 25, 2007) (awarded fees of 30% of $24 million recovery, plus expenses); 63. In re Direct Gen. Corp. Sec. Litig., No. 3:05-0077 (M.D. Tenn. July 20, 2007) (awarded fees of 30% of $14.94 million recovery, plus expenses); 64. The Takara Trust v. Molex Incorporated, et al., No. 05-C-1245 (N.D. Ill. Mar. 1, 2007) (awarded fees of 30% of $10.5 million recovery, plus expenses); 65. Underwood, et al. v. Lampert, et al., No. 1 :02-cv-21 154-CMA/Turnoff(S.D. Fla. Jan. 29, 2007) (awarded fees of 30% of $1.5 million recovery, plus expenses); 66. In re AMER CO Sec. Litig., No. 04-2182-PHX-RJB (D. Ariz. Nov. 2, 2006) (awarded fees of 30% of $7 million recovery; plus expenses); 67. Greater Pennsylvania Carpenters Pension Fund v. Whitehall Jewellers, Inc., et al., No. 04 C 1107 (N.D. Ill. July 24, 2006) (awarded fees of 30% of $7.5 million recovery, plus expenses); 68. In re Stellent, Inc. Sec. Litig., Master File No. CV-03-4384 RHK/AJB (D. Minn. Nov. 16, 2005) (awarded fees of 30% of $12 million recovery, plus expenses); 69. In re Descartes Systems Group, Inc. Sec. Litig., Master File No. 04 Civ. 3793(LTS)(MHD) (S.D.N.Y. Sept. 16, 2005) (awarded fees of 30% of $1.5 million recovery, plus expenses); 70. Brody v. Hellman, Case No. 00-CV-4142 (City & County Denver Colo. Aug. 30, 2005) (awarded fees of 30% of $50 million recovery, plus expenses); 71. In re Daisytek International Litig., Master Docket No. 4:03-CV-212 (E.D. Tex. July 20, 2005) (awarded fees of 30% of $6 million recovery, plus expenses); 72. In re Novell, Inc. Sec. Litig., Case No. 2:99-CV-995 TC (D. Utah May 26, 2005) (awarded fees of 30% of $13.9 million recovery, plus expenses); 73. Deckler v. Ionics, Inc., et al., No. 03-CV-10393-WGY (D. Mass. Apr. 4, 2005) (awarded fees of 30% of $3 million recovery, plus expenses); 74. Southland Securities Corporation v. INSpire Insurance Solutions, Inc., No. 4:00-CV- 355y (N.D. Tex. Mar. 9, 2005) (awarded fees of 30% of $4.8 million recovery, plus expenses); 5 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page32 of 40 75. Steinbeck v. Sonic Innovations, Inc., et al., Case No. 2:00-CV-848-PGC (D. Utah May 25, 2004 (awarded fees of 30% of $7 million recovery, plus expenses); 76. Broderick v. Mazur (PHP Healthcare), No. CV-98-1658-MRP(AJWx) (C.D. Cal. Apr. 27, 2004) (awarded fees of 30% of $4.5 million recovery, plus expenses); 77. Ronconi v. Larkin, Case No. 767087-5 OV (Alameda County Super. Ct. Jan. 6, 2004) (awarded fees of 30% of $2.5 million recovery, plus expenses); 78. Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives and Composites, Inc., Case No. CV-99-07796-FMC(RNx) (C.D. Cal. Jan. 31, 2005) (awarded fees of 29% of $32.75 million recovery, plus expenses); 79. In re Accredo Health, Inc. Sec. Litig., No. 03-CV-2216 (W.D. Tenn. Feb. 19, 2009) (awarded fees of 28% of $33 million recovery, plus expenses); 80. Olmsted v. ADAC Laboratories, Case No. CV793923 (Santa Clara Super. Ct. May 10, 2004) (awarded fees of 28% of $3.55 million recovery, plus expenses); 81. In re Sanofi-Aventis Sec. Litig., No. 1:07-cv-10279-GBD (S.D.N.Y. Jan. 22, 2014) (awarded fees of 27.5% of $40 million recovery, plus expenses); 82. In re Coventry Healthcare, Inc. Sec. Litig., No. 8:09-cv-02337-AW (D. Md. Oct. 29, 2013) (awarded fees of 27.5% of $10 million recovery, plus expenses); 83. Alaska Elec. Pension Fund v. Pharmacia Corp., No. 03-1519(AET) (D.N.J. Jan. 30, 2013) (awarded fees of 27.5% of $164 million recovery, plus expenses); 84. Silverman v. Motorola, Inc., No. 07 C 4507 (N.D. Ill. May 7, 2012) (awarded fees of 27.5% of $200 million recovery, plus expenses); 85. Cornwell v. Credit Suisse Group, No. 08-cv-03758(VM) (S.D.N.Y. July 20, 2011) (awarded fees of 27.5% of $70 million recovery, plus expenses); 86. Ross v. Abercrombie & Fitch Co., No. 2:05-cv-00819-EAS-TPK (S.D. Ohio Sept. 24, 2010) (awarded fees of 27.5% of $12 million recovery, plus expenses); 87. Indiana State District Council of Laborers & HOD Carriers Pension Fund v. Brukardt, No. 05-1392-II (Tenn. Chancery Ct. May 13, 2013) (awarded fees of 27% of $4 million recovery, plus expenses); 88. Brown v. Brewer, et al., No. 2:06-cv-03731-GHK-SH (C.D. Cal. Mar. 19, 2012) (awarded fees of 27% of $45 million recovery, plus expenses); 89. Hoff v. Popular Inc., No. 3:09-cv-01428-GAG (D.P.R. Nov. 2, 2011) (awarded fees of 27% of $37.5 million recovery, plus expenses); 0 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page33 of 40 90. In re Infineon Techs. AG Sec. Litig., No. C-04-4156-JW (N.D. Cal. Nov. 2, 2011) (awarded fees of 27% of $6.2 million recovery, plus expenses); 91. Thurber v. Mattel, Inc., No. CV-99-10368-MRP(CWx) (C.D. Cal. Oct. 1, 2003) (fee equal to 27% of $122 million recovery, plus expenses); 92. Massachusetts Bricklayers & Masons Trust Funds v. Deutsche Alt-A Sec., Inc., No. 2:08- cv-03178-LDW-ARL (E.D.N.Y. July 11, 2012) (awarded 26.5% of $32.5 million recovery, plus expenses); 93. In re CIT Grp. Inc. Sec. Litig., No. 1:08-cv-06613-BSJ-THK (S.D.N.Y. June 13, 2012 (awarded 26.5% of $75 million recovery, plus expenses); 94. Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., No. 08 cv-10446 (D. Mass. Dec. 19, 2013) (awarded fees of 25% of $21.2 million recovery, plus expenses); 95. Plumbers & Pipefitters Local Union No. 630 Pension-Annuity Trust Fund v. Northwest Pipe Co., No. 3:09-cv-05724-RBL (W.D. Wash. Mar. 22, 2013) (awarded fees of 25% of $12.5 million recovery, plus expenses); 96. Int'l Bhd. of Elec. Workers Local 697 Pension Fund v. Int'l Game Tech., No. 3:09-cv- 00419-MMD-WGC (D. Nev. Oct. 19, 2012) (awarded fees of 25% of $12.5 million recovery, plus expenses); 97. Plumbers & Pipefitters Local Union No. 630 Pension Annuity Trust Fund v. Allscripts- Misys Healthcare Solutions, Inc., No. 1:09-cv-04726 (N.D. Ill. July 12, 2012) (awarded 25% of $10.15 million recovery, plus expenses); 98. Maiman v. Talbott, No. SACV 09-0012-AG(ANx) (C.D. Cal. July 9, 2012) (awarded 25% of $8.25 million recovery, plus expenses); 99. In re Accuray Inc. Sec. Litig., No. 4:09-cv-03362-CW (N.D. Cal. Dec. 8, 2011) (awarded fees of 25% of $13.5 million recovery, plus expenses); 100. In reAgria Corp. Sec. Litig., No. 1:08-cv-03536-WHP (S.D.N.Y. June 7, 2011) (awarded fees of 25% of $3.75 million recovery, plus expenses); 101. City of Roseville Emp. Ret. Sys. v. Micron Tech., Inc., No. 06-CV-85-WFD (D. Idaho Apr. 28, 2011) (awarded fees of 25% of $42 million recovery, plus expenses); 102. The City of Hialeah Employees' Ret. Sys. v. Toll Bros., Inc., No. 07-1513 (E.D. Pa. Mar. 4, 2011) (awarded fees of 25% of $25 million recovery, plus expenses); 103. In re America Service Group, et al., No. 3:06-cv-00323 (M.D. Tenn. Oct. 15, 2010) (awarded fees of 25% of recovery (worth $14,895,000 in cash and stock), plus expenses); 7 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page34 of 40 104. Belodoff v. Netlist, Inc., No. SACV-07-00677-DOC(MLGx) (C.D. Cal. Sept. 30, 2010) (awarded fees of 25% of $2.6 million recovery, plus expenses); 105. Charatz v. Avaya, Inc., No. 3:05-cv-02319 (D.N.J. Sept. 27, 2010) (awarded fees of 25% of $4.5 million recovery, plus expenses); 106. Lefkoe v. Jos. A. Bank Clothiers, Inc., No. 1:06-cv-01892-WMN (D. Md. July 28, 2010) (awarded 25% of $4 million recovery, plus expenses); 107. Ryan v. Flowserve Corp., No. 3:03-CV-01769-B (N.D. Tex. May 11, 2010) (awarded 25% of $55 million recovery, plus expenses); 108. Twinde v. Threshold Pharms., Inc., No. 4:07-cv-04972-CW (N.D. Cal. Apr. 16, 2010) (awarded 25% of $10 million recovery, plus expenses); 109. City of Westland Police and Fire Retirement System v. Sonic Solutions, No. C 07-05111 - CW (N.D. Cal. Apr. 8, 2010) (awarded 25% of $5 million recovery, plus expenses); 110. Batwin v. Occam Networks, Inc., No. 2:07-cv-02750-CAS(SHx) (C.D. Cal. Feb. 22, 2010) (awarded 25% of $13.945 million recovery, plus expenses); 111. Tsirekidze v. Syntax-Brillian Corp., No. 2:07-cv-02204-FJM (D. Ariz. Feb. 18, 2010) (awarded 25% of $10 million recovery, plus expenses); 112. In re Metawave Commc'ns Sec. Litig., No. 02-cv-00625-RSM (W.D. Wash. Feb. 11, 2010) (awarded 25% of $1.5 million recovery, plus expenses); 113. In re 21st Century Holding Co. Sec. Litig., No. 07-61057-Civ-CORN/SELTZER (S.D. Fla. Jan. 29, 2010) (awarded 25% of $2.24 million recovery, plus expenses); 114. West Palm Beach Firefighters' Pension Fund v. StarTek, Inc., No. 05-cv-01265-WDM- MEH (D. Colo. Dec. 21, 2009) (awarded 25% of $7.5 million recovery, plus expenses); 115. In re Dura Pharms., Inc. Sec. Litig., No. 99-CV-0151-JLS(WMC) (S.D. Cal. Dec. 4, 2009) (awarded fees of 25% of $14 million recovery, plus expenses); 116. In re Seracare Life Sciences, Inc. Sec. Litig., No. 05-CV-2335-JLS(CAB) (S.D. Cal. July 17, 2009) (awarded 25% of $1.6 million recovery, plus expenses); 117. In re Ace Ltd. Sec. Litig., No. 05-md-1675 (E.D. Pa. June 10, 2009) (awarded 25% of $1.95 million recovery, plus expenses); 118. Darquea v. Darden Corp., No. 1:06-cv-00722(RPP) (S.D.N.Y. May 18, 2009) (awarded 25% of $8 million recovery, plus expenses); 119. In re Impax Labs., Inc. Sec. Litig., No. C-04-4802-JW (N.D. Cal. May 12, 2009) (awarded 25% of $9 million recovery, plus expenses); Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page35 of 40 120. Parkside Capital Ltd. v. Xerium Techs. Inc., No. 06-10991-RWZ (D. Mass. Feb. 26, 2009) (awarded 25% of $3.6 million recovery, plus expenses); 121. In re Sunterra Corp. Sec. Litig., No. 2:06-cv-00844- BES-RJJ (D. Nev. Feb. 10, 2009) (awarded 25% of $8 million recovery, plus expenses); 122. In re Brocade Sec. Litig., No. C 05-02042 CRB (N.D. Cal. Jan. 26, 2009) (awarded 25% of the recovery, plus expenses); 123. In re Bridgestone Sec. Litig., No. 3:01-0017 (M.D. Tenn. Jan. 23, 2009) (awarded 25% of $30 million recovery, plus expenses); 124. In re Wireless Facilities, Inc. Sec. Litig., No. 04cv1589 NLS (S.D. Cal. Jan. 13, 2009) (awarded 25% of $12 million recovery, plus expenses); 125. In re Wireless Facilities, Inc,. Sec. Litig., No. 07cv482 NLS (S.D. Cal. Dec. 19, 2008) (awarded 25% of $4.5 million recovery, plus expenses); 126. In re Tommy Hilfrger Sec. Litig., No. 1:04-CV-07678-SAS (S.D.N.Y. Oct. 8, 2008) (awarded 25% of $16 million recovery, plus expenses); 127. In re PETCO Corp. Sec. Litig., No. 05-CV-0823 H(RBB) (S.D. Cal. Sept. 2, 2008) (awarded 25% of $20.25 million recovery, plus expenses); 128. In re DHB Indus., Inc. Class Action Litig., No. 2:05-cv-04296-JS-ETB (E.D.N.Y. July 21, 2008) (awarded 25% of recovery, plus expenses); 129. In re Zale Corporation Sec. Litig., No. 3:06-cv-01470-N (N.D. Tex. July 10, 2008) (awarded 25% of $5.9 million recovery, plus expenses); 130. Reynolds v. Repsol YPF, S.A., No. 1:06-cv-00733-DAB (S.D.N.Y. May 7, 2008) (awarded 25% of $8 million recovery, plus expenses); 131. Sekuk Global Enters. v. KVH Indus., Inc., No. CA-04-306L (D.R.I. Jan. 25, 2008) (fee equal to 25% of $5 million recovery, plus expenses); 132. In re SeraCare Life Sciences, Inc. Sec. Litig., No. 05-CV-2335-H(CAB) (S.D. Cal. Sept. 4, 2007) (awarding 25% of $3 million recovery, plus expenses); 133. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M-02-1486 PJH (N.D. Cal. Aug. 16, 2007) (fee equal to 25% of recovery, plus expenses); 134. In re Watchguard Sec. Litig., No. 2:05-cv-00678-JLR (W.D. Wash. Aug. 6, 2007) (awarded 25% of $1.75 million recovery, plus expenses); 135. In re Alliance Gaming Corp. Sec. Litig., No. CV-S-04-0821 -BES -PAL (D. Nev. June 28, 2007) (awarding 25% of $15.5 million recovery, plus expenses); 0 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page36 of 40 136. Dutton v. D&K Healthcare Res., Inc., No. 4:04-CV-00147-SNL (E.D. Mo. June 5, 2007) (awarding 25% of $18.7 million recovery, plus expenses); 137. In re Vicuron Pharms., Inc. Sec. Litig., No. 04-2627 (E.D. Pa. May 31, 2007) (awarded 25% of $12.75 million recovery, plus expenses); 138. In re Verisign, Inc. Sec. Litig., No. C-02-2270-JW(PVT) (N.D. Cal. Apr. 24, 2007) (awarded 25% of $80 million recovery, plus expenses); 139. In re Amerada Hess Corp. Sec. Litig., No. 2:02ev03359 (D.N.J. Apr. 16, 2007) (awarded 25% of $9 million recovery, plus expenses); 140. Heller v. Quovadx, Inc., No. 04-cv-00665 (D. Colo. Apr. 13, 2007) (awarded 25% of $9 million recovery, plus expenses); 141. In re Charlotte Russe Holding, Inc. Sec. Litig., No. 04cv2528 (S.D. Cal. Aug. 30, 2006) (awarded 25% of $3.9 million recovery, plus expenses); 142. In re Surebeam Corp. Sec. Litig., No. 03-CV-01721-JM(POR) (S.D. Cal. July 17, 2006) (awarded 25% of $32.75 million recovery, plus expenses); 143. In re U.S. Aggregates, Inc. Sec. Litig., No. C-01-1688-CW (N.D. Cal. Apr. 6, 2006) (awarding 25% of $3.5 million recovery, plus expenses); 144. In re Titan, Inc. Sec. Litig., Master File No. 04-CV-0676-LAB(NLS) (S.D. Cal. Dec. 19, 2005) (fee award equal to 25% of $61.5 million recovery, plus expenses); 145. In re Intershop Communications AG Sec. Litig., Master File No. C-01-20333-JW (N.D. Cal. Dec. 5, 2005) (fee award equal to 25% of $2 million recovery, plus expenses); 146. In re Amazon.Com , Inc. Sec. Litig., Master File No. C-01-0358-L (W.D. Wash. Nov. 11, 2005) (fee award equal to 25% of $27.7 million recovery, plus expenses); 147. In re CVS Corp. Sec. Litig., No. C.A. 01-11464(JLT) (D. Mass. Sept. 7, 2005) (fee equal to 25% of recovery, plus expenses); 148. In re Intermune, Inc. Sec. Litig., No. C-03-2954-SI (N.D. Cal. Aug. 26, 2005) (fee award equal to 25% of $10.4 million recovery; plus expenses); 149. In re Pemstar, Inc. Sec. Litig., Master File No. 02-1821 (DWF/SRN) (D. Minn. May 27, 2005) (fee award equal to 25% of $12 million recovery, plus expenses); 150. In re Ventro Corp. Sec. Litig., No. C-01-1287-SBA (N.D. Cal. Mar. 29, 2005) (fee award equal to 25% of $6.935 million recovery; plus expenses); 151. In re Specialty Laboratories, Inc. Sec. Litig., Master File No. CV 02-04352-DDP(RCx) (C.D. Cal. Dec. 28, 2004) (fee award equal to 25% of $12 million recovery, plus expenses); 10 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page37 of 40 152. Brody v. TALX Corporation, et al., No. 4:01CV2014-HEA (E.D. Mo. Oct. 6, 2004) (fee equal to 25% of $5.75 million recovery, plus expenses); 153. In re National Golf Properties, Inc. Sec. Litig., Master File No. 02-1383-GHK(RZx) (C.D. Cal. Oct. 4, 2004) (fee award equal to 25% of $4.175 million recovery, plus expenses); 154. In re Infonet Services Corp. Sec. Litig., Master File No. CV-0 1-1 0456-NM(CWx) (C.D. Cal. July 26, 2004) (fee equal to 25% of $18 million recovery, plus expenses); 155. In re Mutual Risk Management Ltd. Sec. Litig., Case No. 02CV111OK(POR) (S.D. Cal. July 22, 2004) (fee equal to 25% of $3 million recovery, plus expenses); 156. In re Accelerated Networks, Inc. Sec. Litig., Master File No. CV-01-3585-SJO(MANx) (C.D. Cal. June 28, 2004) (fee equal to 25% of $8 million recovery, plus expenses); 157. In re DJ Orthopedics, Inc. Sec. Litig., Case No. 01-CV-2238-K(RBB) (S.D. Cal. June 21, 2004) (fee equal to 25% of $5.5 million fund, plus expenses); 158. In re TUT Systems, Inc. Sec. Litig., Master File No. C-01-2659-CW (N.D. Cal. May 14, 2004) (fee equal to 25% of $10 million recovery, plus expenses); 159. In re M&A West, Inc. Sec. Litig., Master File No. C-01-0033-SBA (N.D. Cal. Feb. 10, 2004) (fee equal to 25% of $2.615 million recovery, plus expenses). S:\FORMS\Fees\25% and 30% Fee Charts to Use as Exhibits\2004 to Present F-Exp 25% 1st with settlement amounts.docx Revised March 7, 2014 11 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page38 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on June 23, 2014, I authorized the electronic filing of the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I caused to be mailed the foregoing document or paper via the United States Postal Service to the non- CM/ECF participants indicated on the attached Manual Notice List. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on June 23, 2014. s/ Shawn A. Williams SHAWN A. WILLIAMS ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415/288-4545 415/288-4534 (fax) E-mail: shawnw@rgrdlaw.com 950638_2 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page39 of 40 Mailing Information for a Case 3:11-cv-02448-EMC Westley et al v. Oclaro, Inc. et al Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Gidon M. Caine gidon.caine@alston.com,joe.tully@alston.com,kathy.kirk@alston.com,chuck.mattson@alston.com Jessica Perry Corley jessica.corley@alston.com Frank James Johnson frankj@johnsonandweaver.com,paralegal@johnsonandweaver.com,nathanh@johnsonandweaver.com,shawnf@johnsonandweaver.com,michaelf@johnsonandweaver.com,ceciliar@johnsonandweaver.com Julie A. Kearns jkearns@rgrdlaw.com,e_file_sd@rgrdlaw.com,e_file_sf@rgrdlaw.com Tina Mehr tina.mehr@alston.com Brian O. O'Mara bo'mara@rgrdlaw.com,e_file_sd@rgrdlaw.com,e_file_sf@rgrdlaw.com Mark Punzalan markp@punzalanlaw.com,office@punzalanlaw.com Darren Jay Robbins e_file_sd@rgrdlaw.com Sunny September Sarkis Ssarkis@rgrdlaw.com Andrew Townsend Sumner andy.sumner@alston.com Joseph G Tully joe.tully@alston.com David Conrad Walton davew@rgrdlaw.com,ldeem@rgrdlaw.com Shawn A. Williams shawnw@rgrdlaw.com,erinj@rgrdlaw.com,e_file_sd@rgrdlaw.com,e_file_sf@rgrdlaw.com Manual Notice List The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. Robert J. Dyer , III Dyer & Berens LLP 303 East 17th Avenue, Suite 300 Denver, CO 80203 Page 1 of 1CAND-ECF- 6/23/2014https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?112487008418823-L_1_0-1 Case3:11-cv-02448-EMC Document192 Filed06/23/14 Page40 of 40