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					     Case 3:09-cv-01736-LAB -JMA Document 21-1        Filed 12/06/10 Page 1 of 23



 1   BLUMENTHAL, NORDREHAUG & BHOWMIK
      Norman B. Blumenthal (State Bar #068687)
 2    Kyle R. Nordrehaug (State Bar #205975)
      Aparajit Bhowmik (State Bar #248066)
 3   2255 Calle Clara
     La Jolla, CA 92037
 4   Telephone: (858)551-1223
     Facsimile: (858) 551-1232
 5   Website: www.bamlawca.com
 6   Attorneys for Plaintiff
     Additional Attorneys on Signature Page
 7
 8
 9
10                                UNITED STATES DISTRICT COURT
11                          SOUTHERN DISTRICT OF CALIFORNIA
12
13    BRENT FLETCHER; on behalf of              CASE No. 09-CV-1736 LAB (POR)
      himself, and on behalf of all persons
14    similarly situated,
                                                PLAINTIFF’S MEMORANDUM OF
15                  Plaintiffs,                 POINTS AND AUTHORITIES IN
                                                SUPPORT OF MOTION FOR AWARD
16    vs.                                       OF ATTORNEYS’ FEES, COSTS AND
                                                EXPENSES
17    VERIZON COMMUNICATIONS INC., a
      corporation doing business as VERIZON;
18    VU VERIZON ENTERPRISE                     Hearing Date:       April 25, 2011
      DELIVERY, an unknown entity;              Hearing Time:       11:45 a.m.
19    VERIZON ENTERPRISE DELIVERY
      LLC, a limited liability company; and     Judge: Hon. Larry A. Burns
20    DOES 1 through 10,                        Courtroom: 9

21                  Defendants.

22
23
24
25
26
27
28
     PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                            ATTORNEYS' FEES, COSTS AND EXPENSES
                                                                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                               Filed 12/06/10 Page 2 of 23



 1                                                TABLE OF CONTENTS
 2
 3   I.     INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
 4
     II.    THE ATTORNEYS' FEES REQUESTED ARE FAIR AND REASONABLE
 5          AND SHOULD BE APPROVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
 6          A.       The Agreement for the Payment of Fees and Expenses is Appropriate and
                     Should Be Enforced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
 7
     III.   CLASS COUNSEL'S FEE AND COST AWARD IS PROPERLY
 8          CALCULATED AS A PERCENTAGE OF THE TOTAL VALUE
            CREATED FOR THE BENEFIT OF THE CLASS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
 9
            A.       The Common Fund Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10
            B.       Evolution of the Percentage Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11
            C.       The Award is Supported By 1) the Results Achieved; 2) the Risk, 3) the
12                   Skill Required, 4) the Contingent Nature of the Fee and 5) Awards In
                     Similar Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13
                     1.        The Results Achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14
                     2.        The Risks of Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15
                     3.        The Skill Required and the Quality of Work . . . . . . . . . . . . . . . . . . . 11
16
                     4.        The Contingent Nature of the Fee and the Financial Burden . . . . . . . 12
17
                     5.        Awards in Similar Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18
            D.       Class Counsel's Costs Were Reasonably Incurred . . . . . . . . . . . . . . . . . . . . 16
19
            F.       The Class Representative Should Receive the Requested Service
20                   Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
21   IV.    CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
22
23
24
25
26
27
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -i-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                                Filed 12/06/10 Page 3 of 23



 1                                              TABLE OF AUTHORITIES
 2
     Cases:
 3
     Ali v. U.S.A. Cab, Ltd.,
 4           176 Cal. App. 4th 1333 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11
 5   Arenson v. Board of Trade
           372 F.Supp. 1349 (N.D. Ill. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
 6
     Bingham v. UG & Elec. Bd.,
 7         357 F.3d 931 (9th Cir 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
 8   Blum v. Stenson,
           465 U.S. 886 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 8
 9
     Boeing Co. v. Van Gemert
10         444 U.S. 472 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
11   Brotherton v. Cleveland
           141 F.Supp.2d 907 (S.D.Ohio 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12
     Cook v. Niedert
13         142 F.3d 1004 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14   Court Awarded Attorney Fees, Report of the Third Circuit Task Force,
            108 F.R.D. 237 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
15
     Craft v. County of San Bernardino,
16          624 F. Supp. 2d 1113 (C.D. Ca. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17   Cramptom v. Takegoshi
          17 Cal.App.4th 308 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18
     Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper
19         445 U.S. 326 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
20   Dinges v. Sacred Heart St. Mary’s Hosp.,
           164 F.3d 1056 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
21
     Enter. Energy Corp. v. Columbia Gas Transmission Corp.
22          137 F.R.D. 240 (S.D. Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
23   Evans v. Jeff D.
           475 U.S. 717 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
24
     Florin v. Nations Bank of Georgia,
25          34 F.3d 560 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
26   Gaskill v. Gordon
            160 F.3d 361 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
27
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -ii-                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                              Filed 12/06/10 Page 4 of 23



 1   Glass v. UBS Fin. Servs.
            15 Wage & Hour Cas. 2d (BNA) 1330,
 2          2007 U.S. Dist. LEXIS 8476 (N.D.Cal. Jan. 27 2007) . . . . . . . . . . . . . . . . . . . . 10, 17
 3   Gomez v. Lincare, Inc.,
          173 Cal. App. 4th 508 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10
 4
     Hensley v. Eckerhart,
 5         461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
 6   In re Activision Securities Litigation
            723 F.Supp. 1373 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
 7
     In re Copley Pharmaceutical, Inc.
 8          1 F.Supp.2d 1407 (D. Wyo.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
 9   In re Dun & Bradstreet Credit Servs. Customer Litig.
            130 F.R.D. 366 (S.D. Ohio 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10
     In re Heritage Bond Litig.
11          U.S. Dist. LEXIS 13627 (C.D. Cal. June 10, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12   In re King Resources Co. Securities Litig.
            420 F.Supp. 610 (D. Colo. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
13
     In re Omnivision Technologies, Inc.
14          2007 WL 4293467 (N.D.Cal., Dec 06, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
15   In re Warner Communications Sec. Lit,
            618 F.Supp. 735 (S.D. N.Y. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16
     Kerr v. Screen Extras Guild, Inc.
17          526 F.2d 67 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18   Lealao v. Beneficial California, Inc.
           (2000) 82 Cal.App.4th 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
19
     Lindy Bros. Bldrs., Inc. of Phila. v. American R. & R. San. Corp.
20         (3rd Cir.1973) 487 F.2d 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
21   Lindy Bros. Bldrs., Inc. of Phila. v. American R. & R. San. Corp.
           (3rd Cir. 1976) 540 F.2d 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
22
     McKittrick v. Gardner
23         378 F.2d 872 (4th Cir.1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
24   McPhail v. First Command,
          2009 U.S. Dist. LEXIS 26544 (S.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
25
     Mevorah v. Wells Fargo Home Mortgage,
26        571 F.3d 953 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
27
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -iii-                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                              Filed 12/06/10 Page 5 of 23



 1   Murphy v. Kenneth Cole Productions, Inc.
          40 Cal.4th 1094 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
 2
     Norton v. Worthern Van Serv., Inc.,
 3         839 F.2d 653 (10th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
 4   Paul, Johnson, Alston & Hunt v. Gaulty
            886 F.2d 268 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9
 5
     Powers v. Eichen,
 6        229 F.3d 1249 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12
 7   Romero v. Producers Dairy Foods, Inc.,
          2007 U.S. Dist. LEXIS 86270, 2007 WL 3492841 (E.D. Ca. Nov. 14, 2007) . . . . . 15
 8
     Serrano v. Priest
 9         20 Cal.3d 25 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10   Singer v. Becton Dickinson and Co.,
            2010 U.S. Dist. LEXIS 53416, 2010 WL 2196104 (S.D. Ca. June 1, 2010) . . . . . . 15
11
     Six Mexican Workers v. Arizona Citrus Growers,
12         904 F.2d 1301 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9
13   Steiner v. BOC Financial Corp.
            1980 U.S. Dist. LEXIS 14561 (S.D.N.Y. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14
     Trustees v. Greenough
15         105 U.S. 527 (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16   Van Vranken v. Atlantic Richfield Co.
           901 F.Supp. 294 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17
     Vasquez v. Coast Valley Roofing, Inc.,
18         266 F.R.D. 482 (E.D. Ca. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19   Vincent v. Hughes Air West, Inc.
           557 F.2d 759 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
20
     Vizcaino v. Microsoft Corp.,
21          290 F.3d 1043 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
22   Williams v. MGM-Pathe Communs. Co.
           129 F.3d 1026 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
23
24
     Statutes, Rules and Regulations:
25
     Cal. Labor Code § 226.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
26
27
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -iv-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1            Filed 12/06/10 Page 6 of 23



 1   I.     INTRODUCTION
 2          After more than one year of litigation, Class Counsel successfully negotiated a
 3   Settlement with Defendant Verizon Enterprise Delivery, LLC (“VED” or “Defendant”) which
 4   provides for a Seven Hundred Fifty Thousand Dollars ($750,000) common fund for the payment
 5   and administration of claims of the Class Members and payment of attorneys fees, costs,
 6   Plaintiff’s service award, the PAGA payment to the State of California, and the employer’s
 7   share of FICA, FUTA and any other payroll taxes on the amounts actually paid to Eligible Class
 8   Members to the extent required by law, not to exceed $25,000. This Settlement payment is all-
 9   in, with no reversion to VED.
10          As part of the Settlement, the parties agreed to an award of attorneys’ fees equal to 25%
11   of the total settlement value, which is $187,500. Preliminary approval of the Class Settlement
12   was granted on November 17, 2010. [Doc. No. 20]. The requested fee falls at the bottom end
13   of the Ninth Circuit’s benchmark of 25% to 40% of a common fund and is fair compensation
14   for undertaking such complex, risky and time-consuming litigation on a contingent basis. See
15   Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990).
16          Since the attorneys’ fees requested are well within the range of reasonableness and the
17   results achieved for the Class Members are excellent, Plaintiff respectfully requests that the
18   Court award the requested fees equal to 25% of the common fund. Plaintiffs also respectfully
19   requests that this Court order payment of a class representative service award of $25,000 to
20   Class Representative Brent Fletcher, and approve payment of Plaintiffs’ incurred litigation
21   expenses and costs in the amount of $11,684.59. All of these payments are sought in
22   accordance with the agreement of the parties. (Settlement Agreement at ¶30(b)(i).)
23
24   II.    THE ATTORNEYS' FEES REQUESTED ARE FAIR AND REASONABLE AND
            SHOULD BE APPROVED
25
            In defining a reasonable fee, the Court should mimic the marketplace for cases involving
26
     a significant contingent risk such as this one. Given the unique reliance of our legal system on
27
     private litigants to enforce substantive provisions of law in class actions, attorneys providing
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -1-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1               Filed 12/06/10 Page 7 of 23



 1   these substantial benefits should be paid an award equal to the amount negotiated in private
 2   bargaining that takes place in the legal market place. Deposit Guaranty Nat. Bank, Jackson,
 3   Miss. v. Roper, 445 U.S. 326, 338, rehg. denied, 446 U.S. 947 (1980). “When a fee is set by
 4   a court rather than by contract, the object is to set it at a level that will approximate what the
 5   market would set. . . . The judge, in other words, is trying to mimic the market in legal
 6   services.” Gaskill v. Gordon, 160 F.3d 361, 363 (7th Cir. 1998); Lealao v. Beneficial
 7   California, Inc. 82 Cal.App.4th 19, 49-50 (2000) (“attempting to award the fee that informed
 8   private bargaining, if it were truly possible, might have reached.” A fee award should
 9   approximate a “percentage fee [] freely negotiated in comparable litigation.”); In re Copley
10   Pharmaceutical, Inc. 1 F.Supp.2d 1407, 1411 (D. Wyo.1998) (“the percentage of the fund
11   method better approximates the workings of the marketplace by focusing on the results
12   achieved.”)
13          At the time this case was brought, the result was far from certain. VED’s practice at
14   issue here had been in place for years. VED’s numerous defenses to the case created difficulties
15   with proof and complex legal issues for Class Counsel to overcome. For example, VED
16   contended that the Class members were barred from recovery for standby time because they
17   were paid a “four-hour stipend” and were paid for actual time responding to calls. Therefore,
18   VED argued that the standby time was “uncontrolled” under Gomez v. Lincare, Inc., 173 Cal.
19   App. 4th 508, 522-23 (2009), because the employees were free to engage in personal activities,
20   received infrequent calls, the response time was not unduly restrictive, and the on-call
21   responsibilities could be traded. If successful, VED’s defense could eliminate or substantially
22   reduce any recovery to the Class. There was also a significant risk that, if the action was not
23   settled, Plaintiff would be unable to obtain class certification and thereby not recover on behalf
24   of any VED employees other than himself. VED argued that the individual experience of each
25   employee varied with respect to the standby time claim and that the meal period claim would
26   not be certified for reasons similar to those at issue in the Brinker case, which is currently under
27   review by the California Supreme Court. Finally, VED argued that even as to the overtime
28
     PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                            ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -2-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                Filed 12/06/10 Page 8 of 23



 1   miscalculation claim, the proof of injury would require individualized evidence which would
 2   preclude class certification. See Ali v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333, 1350 (2009).
 3   All of these were very substantial risks any of which could have resulted in the Class receiving
 4   nothing if the claims were litigated.
 5          The Settlement was possible only because Class Counsel had been able to convince
 6   Defendant that Class Counsel could potentially prevail on the legal issues regarding overtime
 7   compensation, maintain class certification for all employees in the Class, and overcome
 8   difficulties in proof as to monetary relief. (Declaration of Blumenthal at ¶8(f).)
 9          In successfully navigating these hurdles so as to convince Defendant to settle, Class
10   Counsel displayed skills consistent with those that might be expected of attorneys of comparable
11   experience. Here, Class Counsel was pursuing a difficult and risky claim where previous
12   actions had failed to establish liability for standby time, failed to obtain class certification and/or
13   failed to obtain monetary recovery for these employees. (Declaration of Blumenthal at ¶8(g).)
14          Class Counsel’s skill in presenting this case to overcome the difficulties that prevented
15   recovery in many other wage cases is also compelling given the exceptional and well recognized
16   quality of VED’s Counsel from the respected, capable, and experienced attorney, George S.
17   Howard, backed by his well-staffed and prestigious law firm of Jones Day. See In re King
18   Resources Co. Securities Litig. 420 F.Supp. 610, 634 (D. Colo. 1976); Arenson v. Board of
19   Trade, 372 F.Supp. 1349, 1354 (N.D. Ill. 1974). To represent the Class on a contingent fee
20   basis, Class Counsel had to forego compensable hourly work on other cases to devote the
21   necessary time and resources to this contingent case. In so doing, Class Counsel gave up the
22   hourly work that a firm can bank on for the risky contingent fee work in this case which could
23   have paid Class Counsel nothing. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000).
24   (Declaration of Blumenthal at ¶8(g).
25
            A.      The Agreement for the Payment of Fees and Expenses is Appropriate and
26                  Should Be Enforced
27          The United States Supreme Court has ruled that the parties to a class action properly may
28
     PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                            ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -3-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                 Filed 12/06/10 Page 9 of 23



 1   negotiate not only the settlement of the action itself, but also the payment of attorneys' fees. See
 2   Evans v. Jeff D., 475 U.S. 717, 734-35, 738, n.30 (1980). In Hensley v. Eckerhart, 461 U.S.
 3   424, 437 (1983), the Supreme Court held that negotiated, agreed-upon attorneys' fee provisions
 4   are the ideal towards which the parties should strive:
 5            A request for attorney's fees should not result in a second major litigation. Ideally,
              of course, litigants will settle the amount of a fee.
 6
     Id.
 7
              The United States Supreme Court has reemphasized this policy and further stressed that
 8
     the trial court “has a responsibility to encourage agreement” on fees. Blum v. Stenson, 465 U.S.
 9
     886, 902 n.19 (1984). Here, as part of the Settlement, Defendant agreed not to object to an
10
     award of 25% of the settlement amount for attorneys’ fees. Such a fee is commensurate with
11
     what the market would provide for similar services and the Court therefore can most certainly
12
     enforce the agreement. As the United States Supreme Court has instructed:
13
              Given the unique reliance of our legal system on private litigants to enforce
14            substantive provisions of law through class and derivative actions, attorneys
              providing the essential enforcement services must be provided incentives
15            roughly comparable to those negotiated in the private bargaining that takes
              place in the legal marketplace, as it will otherwise be economic for defendants
16            to increase injurious behavior.
17   Deposit Guaranty Nat. Bank, supra, 445 U.S. at 338.1
18             Here, informed arms-length bargaining between experienced counsel for the Class and
19   Defendant was clearly adversarial and arms length as the amount was the result of a mediator’s
20   proposal. Such bargaining is obviously the best measure of the market for fees. The requested
21   fee and cost award was bargained for during adversarial bargaining by counsel for each of the
22   parties, after the substantive terms of the Settlement had been negotiated. The requested fee
23   and cost award was a product of arms-length negotiations and fairly reflects the marketplace
24   value of the services rendered by Class Counsel in this case. As a result, the fee agreed to by
25   the parties should be approved. (Declaration of Blumenthal at ¶7).
26
27
     1
          Emphasis added and internal citations omitted unless otherwise noted.
28
         PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                                ATTORNEYS' FEES, COSTS AND EXPENSES
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 1
     III.       CLASS COUNSEL'S FEE AND COST AWARD IS PROPERLY CALCULATED
 2              AS A PERCENTAGE OF THE TOTAL VALUE CREATED FOR THE BENEFIT
                OF THE CLASS
 3
                Class Counsel seeks an attorney fee award for their successful prosecution and resolution
 4
     of this action, calculated as 25% the cash value of the non-reversionary common fund created
 5
     by the Settlement. In cases such as this one, California and federal courts have long recognized
 6
     that an appropriate method for determining the award of attorneys’ fees is based on a percentage
 7
     of the total value of benefits afforded to class members by the settlement. Boeing Co. v. Van
 8
     Gemert, 444 U.S. 472, 478 (1980); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272
 9
     (1989); Vincent v. Hughes Air West, Inc. 557 F.2d 759, 769 (9th Cir. 1977); Serrano v. Priest,
10
     20 Cal.3d 25, 34 (1977). The awarding of a fee based on a percentage of the common fund
11
     recovered is to “spread litigation costs proportionately among all the beneficiaries so that the
12
     active beneficiary does not bear the entire burden alone.” Vincent v. Hughes Air West, Inc.,
13
     supra, 557 F.2d at 769. The Total Settlement Value is $750,000. Accordingly, Class Counsel
14
     requests $187,500 in attorneys fees as properly calculated as a percentage (25%) of the common
15
     fund created for the benefit of the Class. (Declaration of Blumenthal ¶8(a)).
16
                A.     The Common Fund Doctrine
17
                The Common Fund Doctrine is predicated on the principle of preventing unjust
18
     enrichment. It provides that when a litigant’s efforts create or preserve a fund from which
19
     others derive benefits, the litigant may require the passive beneficiaries to compensate those
20
     who created the fund.2 Both state and federal courts in California have embraced this doctrine.
21
     Serrano, supra, at 35; Cramptom v. Takegoshi, 17 Cal.App.4th 308, 317 (1993); Vincent v.
22
     Hughes Air West, Inc., supra, at 769.
23
                The Common Fund Doctrine is the oldest exception to the American rule, which
24
25          2
            A task force commissioned by the Third Circuit recommended that compensation for
26   creating common funds be calculated by a percentage of the funds created. See Court Awarded
     Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 254-59 (1985); see also
27   Blum v. Stenson, 465 U.S. 886, 900 n. 16 (1984).
28    PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -5-                  Case No. 09cv1736 LAB (POR)
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 1   prohibits fee shifting, that is, awarding attorneys' fees to the winning party from the losing party
 2   without statutory or contractual authorization.
 3          The Common Fund exception is grounded in the historic power of equity to
            permit the trustee of a fund or property (or a party preserving or recovering a fund
 4          for the benefit of others, as well as himself or herself) to recover costs, including
            attorney’s fees. Those costs and fees are paid out of the fund or property itself,
 5          or directly from the other parties enjoying the benefit.
 6   R. Pearle, California Attorney Fee Awards (CEB) § 7.4, at 7-5.
 7          In the present case, it is clear that a common fund has been created and that the requisites
 8   supporting payment of fees by the beneficiaries of that fund are satisfied. Under the foregoing
 9   doctrine, courts have historically and consistently recognized that class litigation is increasingly
10   necessary to protect the rights of individuals whose injuries and/or damages are too small to
11   economically justify individual representation. In Paul, Johnson, Alston & Hunt v. Gaulty, 886
12   F.2d 268, 271 (9th Cir. 1989), the Ninth Circuit embraced this principle when it stated:
13          Since the Supreme Court's 1885 decision in Central Railroad & Banking Co. of
            Ga. v. Pettus, 113 U.S. 116 (1885), it is well settled that the lawyer who creates
14          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
15          conferred a benefit. The amount of such a reward is that which is deemed
            'reasonable' under the circumstances.
16
     Id., at 271.
17
            Accordingly, in determining a reasonable common fund fee award, courts should
18
     properly consider the fact that fees serve as an economic incentive for lawyers to bring class
19
     action litigation in order to achieve increased access to the judicial system for meritorious
20
     claims and to enhance deterrents to wrongdoing. See, A. Conte, Attorney Fee Awards, 2nd. Ed.,
21
     § 104, at §6. Without prosecution on a contingent basis and use of the class action mechanism
22
     the courthouse door would effectively be closed to all class members due to the relatively small
23
     amount of their individual claims in relation to the enormous time and cost associated with class
24
     action litigation. When the Ninth Circuit held that the Common Fund Doctrine was available
25
     in ERISA cases, the court affirmed this principle:
26
            Having determined that risk multipliers remain available in common fund cases
27          after Dague, we further note that we have held, in a pre-Dague case, that a risk
28    PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -6-                  Case No. 09cv1736 LAB (POR)
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 1          multiplier is not merely available in a common fund case but mandated, if the
            court finds that counsel 'had no sure source of compensation for their services .
 2          . . Moreover, we have observed that the need for such an adjustment is
            particularly acute in class action suits. The lawyers for the class receive no fee
 3          if the suit fails, so their entitlement to fees is inescapably contingent.'
 4   Florin v. Nations Bank of Georgia, 34 F.3d 560, 564 (9th Cir. 1994).
 5          When this case was originally filed it was “inescapably contingent.” Further, the result
 6   was by no means guaranteed. Effective prosecution of this case was founded upon the risky
 7   contingent investment of time and expense.
 8          B.     Evolution of the Percentage Method
 9          Ever since the Common Fund Doctrine found its genesis in Trustees v. Greenough 105
10   U.S. 527 (1881), courts have awarded fees on a percentage basis. In arriving at a reasonable
11   percentage fee award, courts considered a variety of factors but focused on the particular
12   circumstances of the case in fixing a percentage based upon a “benchmark.” During the late
13   1960's and early 1970's following the 1966 amendments to Rule 23, the size of settlement funds
14   began increasing significantly and the fees awarded pursuant to the percentage method, usually
15   taken out of context, were criticized by commentators and the general press. Then, in 1973, that
16   year's revision for the Manual for Complex Litigation proposed that all common fund fee
17   awards be based on "time reasonably expended on the action." This concept was then embraced
18   in Lindy Bros. Bldrs., Inc. of Phila. v. American R. & R. San. Corp. 487 F.2d 161 (3rd Cir.1973)
19   and Lindy Bros. Bldrs., Inc. of Phila. v. American R. & R. San. Corp. 540 F.2d 102 (3rd Cir.
20   1976). Thereafter, many courts adopted Lindy's rationale, and courts generally began awarding
21   fees based on the actual time expended (the loadstar) in conjunction with a multiplier of
22   between 2 and 4. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975).
23          As time passed, however, and courts were forced to wade through voluminous and often
24   indecipherable time records, it became evident that utilization of the loadstar method had
25   reached a point of diminishing returns. Further, this approach created a disincentive for cases
26   to settle early. As the court observed in In re Activision Securities Litigation, 723 F.Supp. 1373,
27   1375 (9th Cir. 1989):
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
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 1          The question this court is compelled to ask is, 'Is this process necessary?'
            Under a cost-benefit analysis, the answer would be a resounding, 'No!' Not
 2          only do the Lindy Kerr and Johnson analyses consume an undue amount of court
            time with little resulting advantage to anyone, but, in fact, it may be to the
 3          detriment of the class members. They are forced to wait until the court has done
            a thorough, conscientious analysis of the attorneys' fee petition. Or, class
 4          members may suffer a further diminution of their fund when a special master is
            retained and paid from the fund. Most important, however, is the effect the
 5          process has on the litigation and the timing of settlement. Where attorneys
            must depend on a loadstar approach, there is little incentive to arrive at an
 6          early settlement.
 7          In Williams v. MGM-Pathe Communs. Co., 129 F.3d 1026 (9th Cir. 1997), the Ninth
 8   Circuit confirmed that the percentage method governs attorney fee awards in common
 9   fund cases. Williams held that the percentage award should be calculated based on the total
10   value of the common fund not just the amount claimed by class members because, under Boeing
11   Co. v. Van Gemert, 444 U.S. 472, 478 (1980), “attorneys for a successful class may recover
12   a fee based on the entire common fund created for the class…” 129 F.3d at 1027.
13          Since Blum v. Stenson 465 U.S. 886 (1984), where the Supreme Court approved a
14   “percentage of fund” as being an appropriate fee award, courts have increasingly rejected the
15   loadstar approach. This trend recognizes the fact that compensating class counsel in class
16   litigation on a percentage basis (common fund) makes good sense because (1) it is consistent
17   with the private marketplace where contingent fee attorneys are customarily compensated on
18   such a basis; (2) it aligns the interests of class counsel and absent class members in achieving
19   the maximum possible resolution of the case; and, (3) it augers for the most efficient and
20   expeditious resolution of the litigation by providing an incentive for early, yet reasonable,
21   settlement. Class Counsel respectfully submit that an award in this case should be made on a
22   percentage basis equal to 25% of the settlement fund.
23
            C.     The Award is Supported By 1) the Results Achieved; 2) the Risk, 3) the Skill
24                 Required, 4) the Contingent Nature of the Fee and 5) Awards In Similar
                   Cases
25
            What has now emerged in most fee award decisions is a recognition that fee
26
     determinations in both common fund and statutory fee situations are incapable of mathematical
27
     precision because of the intangible factors that must be resolved in the court's discretion based
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -8-                  Case No. 09cv1736 LAB (POR)
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 1   on the circumstances of each particular case. See, A. Conte, Attorney Fee Awards, 2nd Ed., §
 2   207, at §44. In determining an appropriate fee in a common fund case, a court must decide,
 3   based on the unique posture of each case, what percentage of the common fund would most
 4   reasonably compensate Class Counsel given the nature of the litigation and the performance of
 5   counsel. Paul, Johnson, Alston & Hunt, supra, 886 F.2d at 272 (the benchmark percentage fee
 6   may be adjusted to account for the circumstances involved in this case.) For attorneys’ fees
 7   awards, the Ninth Circuit has established a range of 25% to 40% of a common fund as
 8   reasonable, and therefore 25% is at the very low end and is therefore undoubtedly fair
 9   compensation for undertaking such complex, risky and time-consuming litigation on a
10   contingent basis. See Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311
11   (9th Cir. 1990). Class Counsel’s therefore fee request represents an amount that is at the low
12   end of the accepted benchmark range for fee awards and is therefore undoubtedly reasonable.
13   (Declaration of Blumenthal at ¶8(b).)
14            Courts apply a five-part test in calculating a reasonable percentage fee in common fund
15   cases.
16            (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
17            carried by the plaintiffs; and (5) awards made in similar cases.
18   In re Omnivision Technologies, Inc., 559 F. Supp. 2d 1036, 1046 (N.D.Cal., Dec. 06, 2007).
19            Here, each of these five factors strongly support an award of the percentage fee (25%)
20   requested in this case.
21                   1.     The Results Achieved
22            “The overall result and benefit to the class from the litigation is the most critical factor
23   in granting a fee award.” Omnivision, 559 F. Supp. 2d at 1046; see also In re Heritage Bond
24   Litig., 2005 U.S. Dist. LEXIS 13627, at *27-28 (C.D. Cal. June 10, 2005). Class Counsel
25   successfully certified the Class and obtained an excellent settlement result in this case for the
26   Class Members. The Settlement is particularly advantageous to the Class Member because the
27   proceeds will be distributed shortly as opposed to waiting additional years for a similar, or
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                              -9-                  Case No. 09cv1736 LAB (POR)
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 1   possibly, less favorable result.
 2          There is little question that the result achieved in this litigation is excellent. The liability
 3   of Defendant in this case was uncertain, as many Courts have previously found standby time
 4   to be uncontrolled, and therefore non-compensable. See e.g. Bingham v. UG & Elec. Bd., 357
 5   F.3d 931, 936 (9th Cir 2004) (on-call employee need not have complete flexibility or freedom,
 6   otherwise all standby time would be “controlled”); Dinges v. Sacred Heart St. Mary’s Hosp.,
 7   164 F.3d 1056, 1059 (7th Cir. 1999) (seven minute response time did not result in “controlled”
 8   status); Norton v. Worthern Van Serv., Inc., 839 F.2d 653, 656 (10th Cir. 1988). Through this
 9   settlement, Class Members will receive hundreds of dollars as their share of the settlement. The
10   average Class Member’s recovery is a sum that exceeds most Class Member’s expectations and
11   an amount that will make a real impact on their lives.
12          The Class Members also received a substantial benefit as the result of the relatively early
13   settlement of this action both in terms of receiving the settlement proceeds much sooner and
14   avoiding the risk of receiving nothing at all. See Glass v. UBS Fin. Servs., 15 Wage & Hour
15   Cas. 2d (BNA) 1330, 2007 U.S. Dist. LEXIS 8476 at * 48 (N.D.Cal. 2007) (“The early
16   settlement of the instant action resulted in significant benefit to the class…. Class counsel
17   achieved an excellent result for the class members by settling the instant action promptly.”)
18                 2.      The Risks of Litigation
19          “The risk that further litigation might result in Plaintiffs not recovering at all, particularly
20   a case involving complicated legal issues, is a significant factor in the award of fees.”
21   Omnivision, 2007 WL 4293467 at *9.
22          At the time this case was brought, the result was far from certain. Defendant’s practice
23   at issue here had been in place for years. Defendant’s numerous defenses to the case created
24   difficulties with proof and complex legal issues for Class Counsel to overcome. For example,
25   VED contended that the Class members were barred from recovery for standby time because
26   they were paid a “four-hour stipend” and were paid for actual time responding to calls.
27   Therefore, VED argued that the standby time was “uncontrolled” under Gomez v. Lincare, Inc.,
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -10-                  Case No. 09cv1736 LAB (POR)
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 1   173 Cal. App. 4th 508, 522-23 (2009), because the employees were free to engage in personal
 2   activities, received infrequent calls, the response time was not unduly restrictive, and the on-call
 3   responsibilities could be traded. If successful, VED’s defense could eliminate or substantially
 4   reduce any recovery to the Class. There was also a significant risk that, if the action was not
 5   settled, Plaintiff would be unable to obtain class certification and thereby not recover on behalf
 6   of any VED employees other than himself. VED argued that the individual experience of each
 7   employee varied with respect to the standby time claim and that the meal period claim would
 8   not be certified for reasons similar to those at issue in the Brinker case, which is currently under
 9   review by the California Supreme Court. Finally, VED argued that even as to the overtime
10   miscalculation claim, the proof of injury would require individualized evidence which would
11   preclude class certification. See Ali v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333, 1350 (2009).
12   All of these were very substantial risks any of which could have resulted in the Class receiving
13   nothing if the claims were litigated. Here, Defendant had stated that certification would be
14   hotly contested, and even if certification was granted, there was certainly a risk that class
15   certification would not be maintained through trial. (Declaration of Blumenthal, ¶8(e).)
16          All of these were very substantial risks any of which could have resulted in the Class
17   receiving nothing if the claims were litigated.
18                 3.      The Skill Required and the Quality of Work
19          Practice in the narrow area of wage and hour class action litigation requires skill,
20   knowledge and experience in two distinct subsets of the law. Expertise in one does not
21   necessarily translate into expertise in the other. Class Counsel must have expertise in both. The
22   issues presented in this case required more than just a general appreciation of wage and hour
23   law and class action procedure as this area of practice is still developing as evidenced by the
24   California Supreme Court’s recent ruling in Murphy v. Kenneth Cole Productions, Inc., 40
25   Cal.4th 1094 (2007) (holding that payments under Labor Code § 226.7 are a wage not a penalty)
26   and the Ninth Circuit’s recent decision in Mevorah v. Wells Fargo Home Mortgage (In re Wells
27   Fargo Home Mortgage Overtime Pay Litig.), 571 F.3d 953, 957-59 (9th Cir. 2009) (reversing
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -11-                  Case No. 09cv1736 LAB (POR)
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 1   class certification in an overtime case).
 2          The Settlement was possible only because Class Counsel was able to convince Defendant
 3   that Plaintiff could potentially prevail on the difficult legal issues regarding overtime
 4   compensation, achieve class certification, overcome difficulties in proof as to monetary relief
 5   and take the case to trial if need be, as exemplified by the foregoing.
 6          In successfully navigating these hurdles Class Counsel displayed the necessary dual skill
 7   set. The high quality of the Class Counsels’ work in this case was mandated by the very
 8   vigorous and experienced defense presented by counsel for Defendant. Class Counsel was
 9   required to invest substantial time and resources in investigation, discovery and determination
10   of potential damages and communicating with and responding to opposing counsel’s inquiries.
11    (Declaration of Blumenthal at ¶8(g)).
12          The contingent fee practices of Class Counsel do not accommodate the investment of
13   unnecessary time in a case. This case was litigated on a contingent basis with all of the
14   concomitant risk factors inherent in such an uncertain undertaking. (Declaration of Blumenthal,
15   ¶8(d).) On account of the concerted and dedicated effort this case demanded in order to
16   properly handle and prosecute, Class Counsel were precluded from working on other cases.
17                 4.     The Contingent Nature of the Fee and the Financial Burden
18          There is a substantial difference between the risk assumed by attorneys being paid by the
19   hour and attorneys working on a contingent fee basis. The attorney being paid by the hour can
20   go to the bank with his fee. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000). The
21   attorney working on a contingent basis can only log hours while working without pay towards
22   a result that will hopefully entitle him to a market place contingent fee taking into account the
23   risk and other factors of the undertaking. Id at 1257. Otherwise, the contingent fee attorney
24   receives nothing. Id.
25          In this case, Class Counsel subjected themselves to this contingent fee market risk in this
26   all or nothing contingent fee case wherein the necessity and financial burden of private
27   enforcement makes the requested award appropriate. (Declaration of Blumenthal at ¶8(d).)
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -12-                  Case No. 09cv1736 LAB (POR)
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 1          Counsel retained on a contingency fee basis, whether in private matters or in class action
 2   litigation, is entitled to a premium beyond their standard, hourly, non-contingent fee schedule
 3   in order to compensate for both the risks and the delay in payment. The simple fact is that
 4   despite the most vigorous and competent of efforts, success is never guaranteed. McKittrick v.
 5   Gardner, 378 F.2d 872, 875 (4th Cir.1967). Indeed, if counsel is not adequately compensated
 6   for the risks inherent in difficult class actions, competent attorneys will be discouraged from
 7   prosecuting similar cases. Steiner v. BOC Financial Corp., 1980 U.S. Dist. LEXIS 14561 at
 8   *6- *7 (S.D.N.Y. 1980).
 9          Here, the contingent nature of the fee award, both from the point of view of eventual
10   settlement and the point of view of establishing eligibility for an award, also warrant the
11   requested fee award. A number of difficult issues, the adverse resolution of any one of which
12   could have doomed the successful prosecution of the action, were present here. As discussed
13   above, attorneys’ fees in this case were not only contingent but extremely risky, with a very
14   real chance that Class Counsel would receive nothing at all for their efforts, having devoted time
15   and advanced substantial costs.
16          Class Counsel advanced all costs in this litigation. Especially in this type of litigation
17   where the corporate defendants and their attorneys are well funded, this can prove to be very
18   expensive and risky. Accordingly, because the risk of advancing costs in this type of litigation
19   can be significant, it is therefore cost prohibitive to many attorneys.          (Declaration of
20   Blumenthal, ¶8(i)). The financial burdens undertaken by Class Counsel in prosecuting this
21   action on behalf of the Class were very substantial. Class Counsel advanced a total of
22   $11,684.59 in costs which could not have been recovered if this case had been lost.
23   (Declaration of Blumenthal at ¶8(i).)       Plaintiff also undertook the risk of liability for
24   Defendant’s costs and fees had this case not succeeded, as well as other potential negative
25   financial ramifications from having come forward to sue Defendant on behalf of the Class.
26          Accordingly, the contingent nature of the fee and the financial burdens on Class Counsel
27   and Plaintiffs also support the fee requested.
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -13-                  Case No. 09cv1736 LAB (POR)
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 1                   5.   Awards in Similar Cases
 2          The attorneys’ fees requested by Class Counsel are within the range of fees awarded in
 3   comparable cases. A review of class action settlements over the past 10 years shows that the
 4   courts have historically awarded fees in the range of 20% to 50%, depending upon the
 5   circumstances of the case. In re Warner Communications Sec. Lit, 618 F.Supp. 735, 749-50
 6   (S.D. N.Y. 1985). Class Counsels’ requested fees are 25% of the total value of the case, a
 7   percentage well within the range of reasonableness given the excellent results obtained for the
 8   Class, the risks undertaken, and the skill of the prosecution. See Vizcaino v. Microsoft Corp.,
 9   290 F.3d 1043, 1047-49 (9th Cir. 2002) (approving 28% attorneys fee award as reflecting “the
10   standard contingency fee for similar cases”).
11          In In re Warner Communications Sec. Lit., Judge Keenan concluded that percentage fees
12   in common fund cases range from 20% to 50%. Id., 618 F.Supp. at 749-50. Professor Newberg
13   is in accord:
14          No general rule can be articulated on what is a reasonable percentage of a
            common fund. Usually 50% of the fund is the upper limit on a reasonable fee
15          award from a common fund in order to assure that the fees do not consume a
            disproportionate part of the recovery obtained for the class, although somewhat
16          larger percentages are not unprecedented.
17   Newberg, Newberg on Class Actions, 3rd Ed., § 14.03, at 14-13§§.
18          Indeed, California cases in which the common fund is under $10 million small, tend to
19   award attorneys’ fees above the 25% benchmark. See Craft v. County of San Bernardino, 624
20   F. Supp. 2d 1113, 1127 (C.D. Ca. 2008) (holding attorneys' fees for large fund cases are
21   typically under 25% and cases below $10 million are often more than the 25% benchmark).
22   More particularly, a review of California cases in other districts reveals that courts usually
23   award attorneys’ fees in the 30%-40% range in wage and hour class actions that result in
24   recovery of a common fun under $10 million. See Vasquez v. Coast Valley Roofing, Inc., 266
25   F.R.D. 482, 491-92 (E.D. Ca. 2010) (citing to five recent wage and hour class actions where
26   federal district courts approved attorney fee awards ranging from 30 to 33%).
27          In similar federal actions involving overtime class actions, fee requests of 30% or more
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -14-                  Case No. 09cv1736 LAB (POR)
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 1   are routinely awarded. On June 1, 2010, Chief Judge Irma Gonzalez, awarded a fee award
 2   equal to 33.33% of the common fund, holding that award was similar to awards in three other
 3   wage and hour class action cases where fees ranged from 30.3% to 40%.3 Singer v. Becton
 4   Dickinson and Co., 2010 U.S. Dist. LEXIS 53416, 2010 WL 2196104, * 8 (S.D. Ca. June 1,
 5   2010). On October 7, 2005, in Scura et al. v. Shurgard Storage Centers, Inc. (U.S.D.C.
 6   Northern Dist. Cal. Case No. C 02 5246 CRB), the Hon. Charles R. Breyer awarded a 33% fee
 7   request in an overtime class action. In Romero v. Producers Dairy Foods, Inc., 2007 U.S. Dist.
 8   LEXIS 86270, 2007 WL 3492841 (E.D. Ca. Nov. 14, 2007), the Court awarded a 33.3%
 9   attorneys’ fee award in a wage and hour class action.
10          Some of the class action awards obtained by Class Counsel herein in similar overtime
11   employment actions bear out the reasonableness of the requested 25% fee award:
12          On October 27, 2010, in Lane v. Stewart Title Company (Fresno Superior Court, Case
13   No. 07 CE CG 01735 AMC), the Honorable Jeffrey Hamilton, Jr., awarded Class Counsel a
14   30% fee award in an overtime class action. (Declaration of Blumenthal at ¶9.)
15          On July 23, 2010, in Walsh v. Apple, Inc., (U.S.D.C. Northern District of California)
16   Case No. 5:08-cv-04918-JF, the Honorable Jeremy Fogel awarded a 25% fee request in an
17   overtime class action. (Declaration of Blumenthal at ¶9).
18          On February 2, 2009, in Louie v. Kaiser Foundation Health Plan, (U.S.D.C. Southern
19   District of California), the Honorable Irma E. Gonzalez, Chief Judge, awarded a 25% fee
20   request in an overtime class action. Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist.
21   LEXIS 78314 (S.D. Cal. 2009) (Holding that “[i]n wage and hour cases “[t]wenty-five percent
22   is considered a benchmark for attorneys' fees in common fund cases.”) (Declaration of
23   Blumenthal at ¶9.)
24      3
           See, e.g., Ingalls v. Hallmark Mktg. Corp., 08cv4342 VBF (Ex), Doc. No. 77, P 6 (C.D.
25   Cal. Oct. 16, 2009) (awarding 33.33% fee on a $ 5.6 million wage and hour class action); Birch
     v. Office Depot, Inc., Case No. 06cv1690 DMS (WMC), Doc. No. 48, P 13 (S.D. Cal. Sept. 28,
26
     2007) (awarding a 40% fee on a $ 16 million wage and hour class action); Rippee v. Boston Mkt.
27   Corp., Case No. 05cv1359 BTM (JMA), Doc. No. 70, at 7-8 (S.D. Cal. Oct. 10, 2006)
     (awarding a 40% fee on a $ 3.75 million wage and hour class action).
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -15-                  Case No. 09cv1736 LAB (POR)
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 1          On November 12, 2008, in Connell v. Sun Microsystems (Alameda Superior Court Case
 2   No. RG06252310), the Honorable Steven Brick awarded Class Counsel a 30% fee request in
 3   an overtime class action. (Declaration of Blumenthal at ¶9.)
 4          In addition, in McPhail et al. v. First Command Financial Planning, (U.S.D.C. Southern
 5   District of California, Case No. 05cv0179), Chief Judge Irma Gonzalez, awarded a 30% fee
 6   request in a securities fraud action. McPhail v. First Command, 2009 U.S. Dist. LEXIS 26544,
 7   at *20-21 (S.D. Cal. 2009). (Declaration of Blumenthal at ¶9.)
 8          A fee award of 25% of the common fund in this case is therefore reasonable in light of
 9   the equivalent or higher fees that have been awarded in other similar cases as set forth above.
10
11          D.     Class Counsel’s Costs Were Reasonably Incurred
12          As part of the Settlement Agreement, the parties agreed that Class Counsel shall be
13   entitled to receive payment for their litigation expenses as follows: “Class Counsel’s costs of
14   suit will also be reimbursed, not to exceed $15,000.” (Settlement Agreement at ¶30(b)(i).)
15          Class Counsel requests reimbursement for expenses and costs actually incurred in the
16   amount of $11,684.59. The reimbursement sought by Class Counsel is less than the amount
17   agreed to in the Settlement Agreement. These litigation expenses consist of charges for court
18   filing fees, expert witness fees, mediation expenses, document copying fees, legal research
19   charges, parking expenses, and delivery charges, all of which are costs normally billed to and
20   paid by the client. These costs were reasonably incurred in the prosecution of this matter.
21   (Declaration of Blumenthal, ¶10).
22
23          E.     The Representative Plaintiff Should Receive the Requested Service Award
24          Plaintiffs respectfully submit that for his service as the Representative Plaintiff, Brent
25   Fletcher should be awarded $25,000 in accordance with the Settlement Agreement. Defendant
26   has agreed to the payment of this service award to Plaintiff as part of the Settlement Agreement,
27   which provides, “an enhancement in the amount of $25,000, will be set aside for the
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -16-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1             Filed 12/06/10 Page 22 of 23



 1   Representative Plaintiff for his efforts in bringing and prosecuting this matter.” (Settlement
 2   Agreement at ¶30(a).)
 3          As the sole Representative of the Class, Plaintiff performed his duties to the Class
 4   admirably and without exception. Plaintiff was the person responsible for (1) discovering the
 5   overtime miscalculation, and (2) challenging the standby practice of Defendant. Plaintiff is a
 6   current employee of Defendant who risked his employment and livelihood to challenge
 7   Defendant’s employment practices. Plaintiff provided valuable documents and information
 8   from his employment which were instrumental in Class Counsels’ understanding of the case.
 9   Plaintiff also responded to numerous requests and correspondence from Class Counsel and
10   worked side by side with Class Counsel to pursue this litigation to its successful resolution.
11   Finally, the Plaintiff assisted with the settlement discussions and provided invaluable assistance
12   and information which ultimately resulted in the settlement benefitting the Class. (Decl of
13   Blumenthal at ¶11).
14          Plaintiff also assumed the risk, among other things, that his employment might be
15   terminated or harmed by this litigation against his current employer. Court’s recognize potential
16   retaliation as a valid concern for employees seeking to vindicate their statutory rights. Plaintiff
17   also took the risk that he might be liable for costs incurred in connection with this case or be
18   “blacklisted” by other future employers.        Without Plaintiff’s support, cooperation and
19   information, no other fellow employees would be receiving any benefit.
20          The payment of service awards to successful class representatives is appropriate and the
21   amount of $25,000 is well within the currently accepted range. See e.g. Van Vranken v. Atlantic
22   Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995)(incentive award of $50,000); In re
23   Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) (two
24   incentive awards of $ 55,000, and three incentive awards of $ 35,000); Brotherton v. Cleveland,
25   141 F.Supp.2d 907, 913-14 (S.D.Ohio 2001)(granting a $50,000 service award); Enter. Energy
26   Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) ($50,000
27   awarded to each class representative). Glass, supra, 2007 U.S. Dist. LEXIS 8476 at *51-*52
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -17-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-1                                   Filed 12/06/10 Page 23 of 23



 1   (awarding $25,000 service award in FLSA overtime wages class action); Cook v. Niedert, 142
 2   F.3d 1004, 1016 (7th Cir. 1998)(affirming $25,000 service award to class representative in
 3   ERISA case);
 4             Plaintiffs’ efforts in bringing the lawsuit have conferred a very substantial benefit on 308
 5   Settlement Class Members. Accordingly, Class Counsel respectfully request that the Court
 6   approve the requested service payment to Plaintiff. (Declaration of Blumenthal, ¶11.)
 7
 8   IV.       CONCLUSION
 9             The representation of the Settlement Class provided by Class Counsel has been wholly
10   contingent. Class Counsel’s fee request is well within the realm of reasonableness for fee
11   requests approved by California and federal courts given the efforts expended in this case and
12   the stage of proceedings at the time of the Settlement. Moreover, Class Counsel undertook great
13   risks on a contingent fee basis and achieved an outstanding result for the benefit of Class
14   Members. Based on the foregoing, Class Counsel respectfully request approval of the
15   application for award of attorneys’ fees equal to 25% of the value of the settlement, and award
16   of costs in the amount of $11,684.59.
17
     Dated: December 6, 2010                            BLUMENTHAL NORDREHAUG & BHOWMIK
18
                                                         By:       /s/ Norman B. Blumenthal
19                                                                Norman B. Blumenthal, Esq.
20                                                      UNITED EMPLOYEES LAW GROUP
                                                        Walter Haines (Bar No. 71075)
21                                                      65 Pine Avenue, #312
                                                        Long Beach, CA 90802
22                                                      Telephone: (877) 696-8378
                                                        Facsimile: (562) 256-1006
23
                                                        Attorneys for Plaintiffs
24
25
26   K:\D\NBB\Fletcher v. Verizon\Final Approval\p-Memorandum - fees and costs.wpd

27
28
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF
                             ATTORNEYS' FEES, COSTS AND EXPENSES
                                             -18-                  Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-2       Filed 12/06/10 Page 1 of 73



 1   BLUMENTHAL, NORDREHAUG & BHOWMIK
      Norman B. Blumenthal (State Bar #068687)
 2    Kyle R. Nordrehaug (State Bar #205975)
      Aparajit Bhowmik (State Bar #248066)
 3   2255 Calle Clara
     La Jolla, CA 92037
 4   Telephone: (858)551-1223
     Facsimile: (858) 551-1232
 5   Website: www.bamlawca.com
 6   Attorneys for Plaintiff
     Additional Attorneys on Signature Page
 7
 8
 9
10                                UNITED STATES DISTRICT COURT
11                          SOUTHERN DISTRICT OF CALIFORNIA
12
13    BRENT FLETCHER; on behalf of              CASE No. 09-CV-1736 LAB (POR)
      himself, and on behalf of all persons
14    similarly situated,
                                                DECLARATION OF NORMAN B.
15                  Plaintiffs,                 BLUMENTHAL IN SUPPORT OF
                                                MOTION FOR AWARD OF
16    vs.                                       ATTORNEYS FEES, COSTS AND
                                                EXPENSES
17    VERIZON COMMUNICATIONS INC., a
      corporation doing business as VERIZON;
18    VU VERIZON ENTERPRISE                     Hearing Date:       April 25, 2011
      DELIVERY, an unknown entity;              Hearing Time:       11:45 a.m.
19    VERIZON ENTERPRISE DELIVERY
      LLC, a limited liability company; and     Judge: Hon. Larry A. Burns
20    DOES 1 through 10,                        Courtroom: 9

21                  Defendants.

22
23
24
25
26
27
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                                                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-2             Filed 12/06/10 Page 2 of 73



 1   I, Norman B. Blumenthal, declare as follows:
 2          1.     My professional corporation is a partner in the law firm of Blumenthal,
 3   Nordrehaug & Bhowmik, counsel of record for Plaintiff and Class Counsel in this matter. As
 4   such, I am fully familiar with the facts, pleadings and history of this matter. I am submitting
 5   this declaration in support of Plaintiff’s motion for an award of attorneys’ fees and costs in
 6   connection with services rendered in the above-entitled action and the reimbursement of
 7   expenses incurred in the course of this litigation. The following facts are within my own
 8   personal knowledge, and if called as a witness, I could and would testify competently to the
 9   matters stated herein.
10          2.     Over the course of the litigation during the year, a number of attorneys in my firm
11   have worked on this matter. Their credentials are reflected in the Blumenthal, Nordrehaug &
12   Bhowmik firm resume, a true and correct copy of which is attached hereto as Exhibit #1. Some
13   of the major cases our firm has undertaken are also set forth in Exhibit #1. The attorneys
14   involved in this matter at Blumenthal, Nordrehaug & Bhowmik have had extensive litigation
15   experience, much of it in the area of class actions, unfair business practices and other complex
16   litigation. The attorneys at my firm also have experience in class cases involving labor code
17   violations and overtime claims. Class Counsel has litigated similar overtime cases against other
18   employers. On account of the concerted and dedicated effort this case demanded in order to
19   properly handle and prosecute, Class Counsel were precluded from working on other cases. It
20   is this level of experience which enabled the firm to undertake the instant matter and to
21   successfully combat the resources of the defendants and their capable and experienced counsel.
22
23          3.     Summary of the Proposed Settlement. A true and correct copy of the Settlement
24   Agreement is attached hereto as Exhibit #2. In consideration for settlement of this Action and
25   a release of the claims described in the Settlement Agreement, Defendant Defendant Verizon
26   Enterprise Delivery, LLC (“VED” or “Defendant”) agreed to pay Seven Hundred Fifty
27   Thousand Dollars ($750,000) as a common fund for the payment and administration of claims
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -1-                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-2            Filed 12/06/10 Page 3 of 73



 1   of the Class Members and payment of attorneys fees, costs, Plaintiff’s service award, the PAGA
 2   payment to the State of California, and the employer’s share of FICA, FUTA and any other
 3   payroll taxes on the amounts actually paid to Eligible Class Members to the extent required by
 4   law, not to exceed $25,000. This Settlement payment is all-in, with no reversion to VED.
 5
 6          4.     Procedural status of the settlement. The Court approved Notice of the settlement
 7   providing class members with an opportunity to submit a claim, opt-out or object is scheduled
 8   to be mailed to the Class Members on or about December 8, 2010.
 9
10          5.     Description of Plaintiff's claims.
11          (a)    The predicate for the Class’s claims is that Defendants violated federal law and
12   the California Labor Code and engaged in unlawful conduct by failing correctly calculate the
13   overtime compensation paid to Settlement Class Members and by failing to compensate
14   Settlement Class Members for standby time ans missed meal breaks.
15          (b)       The complaint as amended set forth claims for violations of the Fair Labor
16   Standards Act, California Business and Professions Code Section 17200, et seq. (“UCL”) and
17   the California Labor Code.
18
19          6.     Procedural History of the Litigation
20          (a) On August 9, 2009, Representative Plaintiff Brent Fletcher filed this action in the
21   United States District Court, Southern District of California titled Fletcher v. Verizon
22   Communications, Inc., et al, as Case No. 09-CV-1736-LAB (POR). The action was filed on
23   behalf of a putative class of all individuals who are or previously were employed by Defendant
24   in a IT maintenance staff position in California that was classified by Defendant as non-exempt,
25   and who were scheduled for on-call, standby work during the Class Period. The action was also
26   brought on behalf of a putative class of all individuals who are or previously were employed by
27   Defendant in a IT maintenance staff position in California that was classified by Defendant as
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -2-                 Case No. 09cv1736 LAB (POR)
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 1   non-exempt for whom the Defendant’s record show one or more missed meal breaks during the
 2   Class Period. [Doc No. 1, at ¶14]. The central allegations of the Class Action was that (i)
 3   overtime pay for the employees was improperly calculated; (ii) that the time spent by employees
 4   on standby status should have been viewed as "controlled" standby and therefore compensable,
 5   rather than being viewed as "uncontrolled" standby time and not compensable; and (iii) that
 6   employees were unable at various times to take legally-required meal periods, in violation of
 7   the California Labor Code.
 8          (b) On October 7, 2009, Representative Plaintiff filed his First Amended Complaint in
 9   this action, which is the operative complaint. [Doc. No. 7]. The First Amended Complaint
10   alleged claims for: (1) unfair competition in violation of Cal. Bus & Prof. Code § 17200, et
11   seq.; (2) failure to pay overtime wages in violation of Cal. Lab. Code §§ 510 and 1194; (3)
12   failure to provide accurate itemized statements in violation of Cal. Lab. Code § 226; (4) failure
13   to provide meal periods in violation of Cal. Lab. Code § 226.7 and 512; (5) failure to pay
14   compensation in violation of 29 U.S.C. § 201, et seq.; and (6) Labor Code Private Attorneys
15   General Act [Labor Code § 2698, et seq.]. The First Amended Complaint seeks various
16   statutory penalties and restitution for unfair competition pursuant to California Business and
17   Professions Code Section 17200 including disgorgement of profits, recovery of pre and post
18   judgment interest, attorneys’ fees, and costs. Defendant VED answered the first amended
19   complaint on October 27, 2009. [Doc. No. 8].
20          (c) Class Counsel has conducted a thorough investigation into the facts of the class
21   action. Class Counsel has diligently evaluated the Class Members’ claims against VED. Prior
22   to the Parties executing a “Memorandum of Understanding,” counsel for VED provided Class
23   Counsel with access to information concerning VED’s employment policies and practices and
24   Class Member data, including data reflecting the weeks worked by the Class Members and
25   relevant salary information for the positions at issue. Defendant produced over fifteen thousand
26   (15,000) pages of documents sought by Class Counsel. Based on the foregoing data and their
27   own independent investigation and evaluation, Class Counsel believes that the settlement with
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -3-                 Case No. 09cv1736 LAB (POR)
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 1   VED for the consideration and on the terms set forth in this Settlement Agreement is fair,
 2   reasonable, and adequate and is in the best interest of the Class in light of all known facts and
 3   circumstances, including the risk of significant delay, the likelihood that VED would prevail
 4   on its defenses, and numerous potential appellate issues.
 5          (d) The parties participated in a mediation of the matter in San Diego, California on June
 6   1, 2010 before the Honorable William C. Pate (Ret.), an experienced mediator affiliate with
 7   JAMS. At the conclusion of the mediation session, the parties reached an agreement in
 8   principle to settle the matter, which was documented in a written Memorandum Of
 9   Understanding ("MOU") signed by all counsel and by the parties.
10          (e) On November 17, 2010, the Court preliminarily approved the Settlement as fair
11   reasonable and adequate. (Docket No. 20.)
12   The Attorneys’ Fees Requested Are Fair and Reasonable and Should Be Approved
13          7.    The Agreement For The Payment of Fees and Expenses Should Is Appropriate
14   And Should Be Enforced
15                 (a) Here, as part of the Settlement, Defendant agreed not to object to an award
16   of 25% of the settlement amount for attorneys’ fees. Such a fee is commensurate with what the
17   market would provide for similar services and the Court therefore can most certainly enforce
18   the agreement.
19                 (b) In the class action context, that means “attempting to award the fee that
20   informed private bargaining, if it were truly possible, might have reached.” Here, informed
21   arms-length bargaining between experienced counsel for the Class and Defendant was clearly
22   adversarial and arms length as the amount was the result of a mediator’s proposal. Such
23   bargaining is obviously the best measure of the market for fees. The requested fee and cost
24   award was bargained for during adversarial bargaining by counsel for each of the parties, after
25   the substantive terms of the Settlement had been negotiated. The requested fee and cost award
26   was a product of arms-length negotiations and fairly reflects the marketplace value of the
27   services rendered by Class Counsel in this case. As a result, the fee agreed to by the parties
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -4-                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-2            Filed 12/06/10 Page 6 of 73



 1   should be approved.
 2
 3          8. Class Counsel’s Fee is Appropriate Under the Percentage of the Fund Method
 4          (a) Here, as part of the Settlement, Defendant has agreed to pay Class Counsel 25% of
 5   the $750,000.00 settlement fund for attorneys’ fees, which equates to $,187,500.00. This
 6   settlement confers a significant pecuniary benefit on a class of individuals consisting of an
 7   estimated 308 current and past employees of the Defendant. Federal courts have long
 8   recognized that an appropriate method for determining the award of attorneys’ fees is based on
 9   a percentage of the total value of benefits afforded to class members by the settlement.
10          (b) Fee determinations in both common fund and statutory fee situations are incapable
11   of mathematical precision because of the intangible factors that must be resolved in the court's
12   discretion based on the circumstances of each particular case. See, A. Conte, Attorney Fee
13   Awards, 2nd Ed., § 207, at 44. In determining an appropriate fee in a common fund case, a
14   court must decide, based on the unique posture of each case, what percentage of the common
15   fund would most reasonably compensate Class Counsel given the nature of the litigation and
16   the performance of counsel. For attorneys’ fees awards, the Ninth Circuit has established a
17   range of 25% to 40% of a common fund as reasonable, and therefore 30% is at the low end and
18   is fair compensation for undertaking such complex, risky and time-consuming litigation on a
19   contingent basis. See Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311
20   (9th Cir. 1990). Class Counsel’s therefore fee request represents an amount that is at the very
21   low end of the accepted benchmark range for fee awards and is therefore undoubtedly
22   reasonable.
23          (c) In defining a reasonable fee, the Court should mimic the marketplace for cases
24   involving a significant contingent risk such as this one. Given the unique reliance of our legal
25   system on private litigants to enforce substantive provisions of law in class actions, attorneys
26   providing these substantial benefits should be paid an award equal to the amount negotiated in
27
28    DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -5-                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-2             Filed 12/06/10 Page 7 of 73



 1   private bargaining that takes place in the legal market place. A review of class action
 2   settlements over the past 10 years shows that the courts have historically awarded fees in the
 3   range of 20% to 50%, depending upon the circumstances of the case. Class Counsels’ requested
 4   fees are 30% of the total value of the case, a percentage well within the range of reasonableness
 5   given the excellent results obtained for the Class, the risks undertaken, and the skill of the
 6   prosecution. As a result, a fee which is at the low end of the benchmark for common fund cases
 7   therefore mimics the marketplace because this was the amount negotiated in arms-length
 8   adversarial negotiations between opposing counsel who deal in the market place and subject
 9   themselves to market forces on a daily basis.     More importantly, such a fees is within the
10   common range of other fees in similar class settlements.
11          (d) There is a substantial difference between the risk assumed by attorneys being paid
12   by the hour and attorneys working on a contingent fee basis. The attorney being paid by the
13   hour can go to the bank with his fee. The attorney working on a contingent basis can only log
14   hours while working without pay towards a result that will hopefully entitle him to a market
15   place contingent fee taking into account the risk and other factors of the undertaking.
16   Otherwise, the contingent fee attorney receives nothing. In this case, Class Counsel subjected
17   themselves to this contingent fee market risk in this all or nothing contingent fee case wherein
18   the necessity and financial burden of private enforcement makes the requested award
19   appropriate. The contingent fee practices of Class Counsel do not accommodate the investment
20   of unnecessary time in a case. This case was litigated on a contingent basis with all of the
21   concomitant risk factors inherent in such an uncertain undertaking. On account of the concerted
22   and dedicated effort this case demanded in order to properly handle and prosecute, Class
23   Counsel were precluded from working on other cases.
24          (e) At the time this case was brought, the result was far from certain. Defendant’s
25   practice at issue here had been in place for years. Defendant’s numerous defenses to the case
26   created difficulties with proof and complex legal issues for Class Counsel to overcome. For
27
28    DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -6-                 Case No. 09cv1736 LAB (POR)
     Case 3:09-cv-01736-LAB -JMA Document 21-2                Filed 12/06/10 Page 8 of 73



 1   example, VED contended that the Class members were barred from recovery for standby time
 2   because they were paid a “four-hour stipend” and were paid for actual time responding to calls.
 3   Therefore, VED argued that the standby time was “uncontrolled” under Gomez v. Lincare, Inc.,
 4   173 Cal. App. 4th 508, 522-23 (2009), because the employees were free to engage in personal
 5   activities, received infrequent calls, the response time was not unduly restrictive, and the on-call
 6   responsibilities could be traded. If successful, VED’s defense could eliminate or substantially
 7   reduce any recovery to the Class. There was also a significant risk that, if the action was not
 8   settled, Plaintiff would be unable to obtain class certification and thereby not recover on behalf
 9   of any VED employees other than himself. VED argued that the individual experience of each
10   employee varied with respect to the standby time claim and that the meal period claim would
11   not be certified for reasons similar to those at issue in the Brinker case, which is currently under
12   review by the California Supreme Court. Finally, VED argued that even as to the overtime
13   miscalculation claim, the proof of injury would require individualized evidence which would
14   preclude class certification. See Ali v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333, 1350 (2009).
15   All of these were very substantial risks any of which could have resulted in the Class receiving
16   nothing if the claims were litigated. Here, Defendant had stated that certification would be
17   hotly contested, and even if certification was granted, there was certainly a risk that class
18   certification would not be maintained through trial.
19          (f) The Settlement was possible only because Class Counsel had been able to convince
20   Defendant that Class Counsel could potentially prevail on the legal issues regarding standby time
21   compensation, obtain class certification for all employees in the Class, and overcome difficulties
22   in proof as to monetary relief.
23          (g) In successfully navigating these hurdles so as to convince Defendant to settle, Class
24   Counsel displayed skills consistent with those that might be expected of attorneys of comparable
25   experience. Here, Class Counsel was pursuing a difficult and risky claim where previous
26   actions had failed to establish liability for standby time, failed to obtain class certification and/or
27   failed to obtain monetary recovery for these employees. Class Counsel’s skill in presenting this
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -7-                 Case No. 09cv1736 LAB (POR)
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 1   case to overcome the difficulties that prevented recovery in many other wage cases is also
 2   compelling given the exceptional and well recognized quality of VED’s Counsel from the
 3   respected, capable, and experienced attorney, George S. Howard, backed by his well-staffed and
 4   prestigious law firm of Jones Day. See In re King Resources Co. Securities Litig. 420 F.Supp.
 5   610, 634 (D. Colo. 1976); Arenson v. Board of Trade, 372 F.Supp. 1349, 1354 (N.D. Ill. 1974).
 6   To represent the Class on a contingent fee basis, Class Counsel had to forego compensable
 7   hourly work on other cases to devote the necessary time and resources to this contingent case.
 8   In so doing, Class Counsel gave up the hourly work that a firm can bank on for the risky
 9   contingent fee work in this case which could have paid Class Counsel nothing.
10          (i) Class Counsel advanced all costs in this litigation. Especially in this type of litigation
11   where the corporate defendants and their attorneys are well funded, this can prove to be very
12   expensive and risky. Accordingly, because the risk of advancing costs in this type of litigation
13   can be significant, it is therefore cost prohibitive to many attorneys. The financial burdens
14   undertaken by Class Counsel in prosecuting this action on behalf of the Class were very
15   substantial. Class Counsel advanced a total of $11,684.59 in costs which could not have been
16   recovered if this case had been lost. Plaintiff also undertook the risk of liability for Defendant’s
17   costs and fees had this case not succeeded, as well as other potential negative financial
18   ramifications from having come forward to sue Defendant on behalf of the Class.
19          9.     On October 27, 2010, in Lane v. Stewart Title Company (Fresno Superior
20   Court, Case No. 07 CE CG 01735 AMC), the Honorable Jeffrey Hamilton, Jr., awarded Class
21   Counsel a 30% fee award in an overtime class action. On July 23, 2010, in Walsh v. Apple,
22   Inc., (U.S.D.C. Northern District of California) Case No. 5:08-cv-04918-JF, the Honorable
23   Jeremy Fogel awarded a 25% fee request in an overtime class action. On February 2, 2009, in
24   Louie v. Kaiser Foundation Health Plan, (U.S.D.C. Southern District of California), the
25   Honorable Irma E. Gonzalez, Chief Judge, awarded a 25% fee request in an overtime class
26   action. Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314 (S.D. Cal.
27   2009) (Holding that “[i]n wage and hour cases “[t]wenty-five percent is considered a benchmark
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -8-                 Case No. 09cv1736 LAB (POR)
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 1   for attorneys' fees in common fund cases.”) On November 12, 2008, in Connell v. Sun
 2   Microsystems (Alameda Superior Court Case No. RG06252310), the Honorable Steven Brick
 3   awarded Class Counsel a 30% fee request in an overtime class action. In addition, in McPhail
 4   et al. v. First Command Financial Planning, (U.S.D.C. Southern District of California, Case
 5   No. 05cv0179), Chief Judge Irma Gonzalez, awarded a 30% fee request in a securities fraud
 6   action. McPhail v. First Command, 2009 U.S. Dist. LEXIS 26544, at *20-21 (S.D. Cal. 2009).
 7   A fee award of 25% of the common fund in this case is therefore reasonable in light of the
 8   prevailing fees that have been awarded in other similar cases as set forth above.
 9          10.    As part of the Settlement Agreement, the parties agreed that Class Counsel shall
10   be entitled to receive payment for their litigation expenses as follows: “Class Counsel’s costs
11   of suit will also be reimbursed, not to exceed $15,000.” (Settlement Agreement at ¶30(b)(i).)
12   Blumenthal, Nordrehaug & Bhowmik incurred litigation expenses in the amount of $11,684.59.
13   These litigation expenses are itemized in Exhibit #3, attached hereto. Class Counsel requests
14   reimbursement for expenses and costs actually incurred in the amount of $11,684.59. The
15   reimbursement sought by Class Counsel is less than the amount agreed to in the Settlement
16   Agreement. These litigation expenses consist of charges for court filing fees, expert witness
17   fees, mediation expenses, document copying fees, legal research charges, parking expenses, and
18   delivery charges, all of which are costs normally billed to and paid by the client. These costs
19   were reasonably incurred in the prosecution of this matter.
20          12.    As the sole Representative of the Class, Plaintiff performed his duties to the Class
21   admirably and without exception. Plaintiff was the person responsible for (1) discovering the
22   overtime miscalculation, and (2) challenging the standby practice of Defendant. Plaintiff is a
23   current employee of Defendant who risked his employment and livelihood to challenge
24   Defendant’s employment practices. Plaintiff provided valuable documents and information
25   from his employment which were instrumental in Class Counsels’ understanding of the case.
26   Plaintiff also responded to numerous requests and correspondence from Class Counsel and
27   worked side by side with Class Counsel to pursue this litigation to its successful resolution.
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -9-                 Case No. 09cv1736 LAB (POR)
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 1   Finally, the Plaintiff assisted with the settlement discussions and provided invaluable assistance
 2   and information which ultimately resulted in the settlement benefitting the Class. Plaintiff also
 3   assumed the risk, among other things, that his employment might be terminated or harmed by
 4   this litigation against his current employer. Court’s recognize potential retaliation as a valid
 5   concern for employees seeking to vindicate their statutory rights. Plaintiff also took the risk that
 6   he might be liable for costs incurred in connection with this case or be “blacklisted” by other
 7   future employers. Plaintiffs’ efforts in bringing the lawsuit have conferred a very substantial
 8   benefit on 308 Settlement Class Members. Accordingly, Class Counsel respectfully request that
 9   the Court approve the requested service payment to Plaintiff. Without Plaintiff’s support,
10   involvement and information, no other fellow employees would be receiving any benefit. The
11   payment of a service award to successful class representatives is appropriate and the amount of
12   $25,000 is well within the currently accepted range.
13          14.    As a result, Class Counsel respectfully request approval of the application for
14   award of attorneys’ fees equal to 25% of the value of the settlement ($187,500) and costs in the
15   amount of $11,684.59, and a service award of $25,000 to each the Representative Plaintiff.
16          I declare under penalty of perjury under the laws of the State of California that the
17   foregoing is true and correct. Executed this 6th day of December, 2010, at San Diego,
18   California.
19
                                                  s/Norman B. Blumenthal
20                                               NORMAN B. BLUMENTHAL
21
                                                 UNITED EMPLOYEES LAW GROUP
22                                               Walter Haines (Bar No. 71075)
                                                 65 Pine Avenue, #312
23                                               Long Beach, CA 90802
                                                 Telephone: (877) 696-8378
24                                               Facsimile: (562) 256-1006
25
26
27
28
      DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS
                                  FEES, COSTS AND EXPENSES
                                             -10-                Case No. 09cv1736 LAB (POR)
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                          EXHIBIT #1
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                          EXHIBIT #2
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       Settlement Agreement - EXHIBIT “A”
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            UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA
                                    (Case Number 09-CV-1736-LAB)
                         A court authorized this Notice. This is not a solicitation.
                       This is not a lawsuit against you and you are not being sued.
                    However, your legal rights are affected whether you act or don’t act.
             IMPORTANT: YOU MAY BE ENTITLED TO MONEY IF THE COURT APPROVES
                              THE SETTLEMENT DESCRIBED HEREIN
                 AND YOU FOLLOW THE CLAIMS PROCEDURE EXPLAINED BELOW

           NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT,
                 YOUR RIGHTS, AND OPTIONS FOR YOU TO CONSIDER
If you were employed by Verizon Enterprise Delivery, LLC in California, and held one or more
of the following titles: (a) Technical Specialist – installation and maintenance, (b) Specialist –
installation and maintenance, (c) Analyst – installation and maintenance, or (d) Coordinator –
installation and maintenance, between August 10, 2005 and ________________, 2010, THEN
YOU MAY RECEIVE MONEY FROM A CLASS ACTION SETTLEMENT.
IMPORTANT: YOU MUST SIGN & MAIL THE ENCLOSED CLAIM FORM POSTMARKED ON OR
BEFORE THE DEADLINE, TO RECEIVE YOUR SHARE OF THE SETTLEMENT. THE AMOUNT
PROJECTED AS THE MINIMUM SHARE OF THE SETTLEMENT YOU WILL RECEIVE IS SET
FORTH ON THE GREEN CLAIM FORM AND IN SECTION IX BELOW.

                                          PLEASE READ THIS NOTICE CAREFULLY.

                                               WHAT THIS NOTICE CONTAINS
I.      What Is The Purpose Of This Notice? ...................................................................................         Page 2
II.     Why Do Plaintiffs Seek Settlement Approval? .....................................................................               Page 2
III.    What Is Defendants’ Position On The Settlement? ...............................................................                 Page 2
IV.     Why Did I Get This Notice? ..................................................................................................   Page 2
V.      Who Are The Parties In This Class Action?..........................................................................             Page 2
VI.     Who Are The Attorneys Representing The Parties?..............................................................                   Page 2
VII.    What Is The Proposed Settlement? ........................................................................................       Page 3
VIII.   What Are My Rights With Regard To This Matter? .............................................................                    Page 3
IX.     How Much Money Will I Get If I Make A Proper Claim And Do Not Request Exclusion?                                                Page 4
X.      Additional Important Information..........................................................................................      Page 4
XI.     Who Can I Contact If I Have Further Questions?..................................................................                Page 4



I.      What Is The Purpose Of This Notice?
The purpose of this Notice is to let you know that there is a class action lawsuit pending in the Southern District of the
United States District Court, that you may be a member of the settlement class for these lawsuits, AND THAT YOU
MAY BE ENTITLED TO A PAYMENT AS PART OF THE CLASS SETTLEMENT OF THESE LAWSUIT. The
Fletcher action was filed by Brent Fletcher against Verizon Enterprise Delivery, LLC (“VED” or “Defendant”) in United
States District Court, Case No. 09-cv-1736-LAB (“the Fletcher lawsuit”). In its final form, the Fletcher lawsuit alleges
that (i) overtime pay for the class members was improperly calculated, (ii) the time spent by class members on standby
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status should have been viewed as “controlled” standby and therefore compensable, rather than being viewed as
“uncontrolled” standby time and not compensable, and (iii) class members were unable at various times to take legally-
required meal periods, in violation of the California Labor Code.
The Parties to the Fletcher lawsuit have agreed to settle the matter. On _____________, 2010, in Courtroom 9 of the
United States District Court, Southern District of California, the Court held a hearing in which it approved the parties’
motion for a court order that does the following:
    1.) temporarily and conditionally certifies the Class Action for Settlement purposes only;
    2.) grants preliminary Court approval of the proposed Settlement;
    3.) grants Court approval of this Notice, which includes setting a schedule and procedure for filing Claim Forms and
        exclusion notices; and
    4.) schedules a Settlement Fairness Hearing for final Court approval of the Settlement for ______________, 2010 at
        ________p.m. in Courtroom 9 of the United States District Court, Southern District of California, located at 940
        Front Street, San Diego, California 92101-8900.
II.     Why Do Plaintiffs Seek Settlement Approval?
Plaintiffs seek approval of the Settlement because they have reached a proposed Settlement with Defendant that they believe
to be fair, reasonable, adequate and in the best interests of the members of the Class and all parties.
III.     What Is The Defendants’ Position On The Settlement?
Defendant views this Settlement as a compromise. They are not admitting any of the allegations in the case. Defendant
denies that any of their policies or practices at issue in this lawsuit were or are unlawful and reserve the right to object to
all claims if the Settlement fails for any reason. The Court file has the Settlement documents with more information on
the lawsuit.
IV.      Why Did I Get This Notice?
You received this Notice because VED’s records identify you as a member of the Settlement Class. You may submit the
enclosed Claim Form to get money from this Settlement if you worked for VED in California; and and held one or more
of the following titles: (a) Technical Specialist – installation and maintenance, (b) Specialist – installation and
maintenance, (c) Analyst – installation and maintenance, or (d) Coordinator – installation and maintenance, between
August 10, 2005 and ________________, 2010.
V.      Who Are The Parties In This Class Action?
Brent Fletcher, current employee of VED, is the Plaintiff who brought the Fletcher lawsuit on behalf of himself and on
behalf of all similarly situated former and current VED employees.
Verizon Enterprise Delivery, LLC is the Defendant.
VI.    Who Are The Attorneys For The Parties?
 Counsel for Plaintiffs                                             Counsel for Defendant
 Norman B. Blumenthal                                               George S. Howard, Jr.
 Kyle R. Nordrehaug                                                 Brian L. Johnson
 Aparajit Bhowmik                                                   JONES DAY
 BLUMENTHAL, NORDREHAUG & BHOWMIK                                   12265 El Camino Real, Suite 200
 2255 Calle Clara                                                   San Diego, CA 92130
 La Jolla, California 92037                                         Phone: (858) 314-1200
 Phone: (858) 551-1223/Fax: (858) 551-1232                          Fax: (858) 314-1150
 Email: Norm@Bamlawlj.com

 Counsel for Plaintiffs
 Walter Haines
 UNITED EMPLOYEES LAW GROUP
 65 Pine Avenue, Suite 312
 Long Beach, California 90802
 Phone: (562) 256-1047/Fax: (562) 256-1006



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            Case 3:09-cv-01736-LAB -JMA Document 21-2                     Filed 12/06/10 Page 66 of 73
VII.    What Is The Proposed Settlement?
Defendant agrees to pay a Gross Settlement Amount in the amount of $750,000.00 in exchange for the release of all
Settled Claims and Claims Released. The Net Settlement Amount” means the Gross Settlement Amount less (i) $25,000
set aside for service payments to the Representative Plaintiff, Brent Fletcher, for his efforts in bringing and prosecuting
this matter; (ii) the payment of attorneys’ fees to Plaintiffs’ counsel, not to exceed one-quarter (25%) of the Gross
Settlement Amount; (iii) Class Counsel’s costs of suit, not to exceed $15,000; (iv) $15,000 for the Claims Administrator’s
costs of the settlement administration; (v) the employer’s share of FICA, FUTA and any other payroll taxes on the
amounts actually paid to Class Members who submit timely claims to the extent required by law, not to exceed $25,000;
and (vi) $18,750 for payment to the State of California for the release of claims under the Private Attorneys General Act,
California Labor Code §§ 2698, et seq.
The following is a summary of the Settlement provisions. The specific and complete terms of the proposed Settlement are
stated in the Settlement Agreement and Release (“Settlement Agreement”), a copy of which is filed with the Clerk of the
Court.
Settlement Payment. Defendant has agreed to pay all valid and timely claims through the Claims Administrator in
accordance with the terms of the Settlement Agreement, after Final Approval of the Class Action Settlement. These
Settlement payments will be distributed approximately thirty days after the effective date of the Final Approval, provided
there is no appeal of the Court’s Final Approval of the Class Action Settlement.
After the deduction of the Court-approved expenses from the Settlement Amounts, the remaining Net Settlement Fund,
estimated to be approximately $651,250, will be available to pay each member of the Settlement Class who submits a
valid and timely Claim Form for his or her allocated share of the Net Settlement Fund.

Each Settlement Class Member’s allocation of the Net Settlement Fund will be determined as follows: (i) Each
Settlement Class Member’s “settlement shares” will be calculated by counting his or her weeks worked in one of the
applicable job classifications after August 10, 2005, and according to whether the Settlement Class Member worked (or
did not work) as a member of the team supporting the Kaiser Permanente account. (ii) For each week in which the
Settlement Class Member worked on the team supporting the Kaiser Permanente account, he or she shall receive three
settlement shares. For each week in which the Settlement Class Member worked on a team other than the team supporting
the Kaiser Permanente account, he or she shall receive one settlement share. Any week in which a class member worked
under a collective bargaining agreement shall not be included in the calculation. Any week in which a settlement class
member worked in a classification other than one of the four classifications identified above shall be excluded from the
calculation. (iii) All Settlement Class Members’ settlement shares will be added together to obtain the total number of
settlement shares based on the number of weeks that he or she worked during the class period. (iv) Each Settlement Class
Member’s individual settlement share will be divided by the total number of settlement shares for all Settlement Class
Members. That ratio will then be multiplied by the Net Settlement Amount to determine each Settlement Class Member’s
monetary Settlement Award. The settlement share of any Settlement Class Member who submits a timely and valid claim
form shall be reduced by seventy percent if the Settlement Class Member previously signed a release of all claims against
Defendant.

VIII.   What Are My Rights With Regard To This Matter?
If you fit the description of a Settlement Class Member as set forth in this Notice, you have four options. Each option has
its own consequences, which you should understand before making your decision. Your rights regarding each option, and
the procedure you must follow to select each option, follow.
A. Option One. Participation as a Settlement Class Member.
To get money from the Settlement you must complete the enclosed “CLAIM FORM” sign it, and return it to the Claims
Administrator, Gilardi & Company, LLC, at the address provided below, post-marked on or before ______________,
2010 .
It is strongly recommended that you retain proof of your timely mailing until receipt of your Settlement payment.
Class Counsel, appointed and approved by the Court for Settlement purposes only, will represent you. The Claims
Administrator will process the Claim Form and send you a check at a later date. If you fail to timely return a completed
and signed Claim Form, you will not receive any money from the Settlement and you will not be permitted to
assert any claims based on the allegations in the class action.
B. Option Two. You Can Exclude Yourself (“opt out”) From the Settlement.

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If you do not wish to participate in or be bound by the Settlement, you must mail to the Claims Administrator, Gilardi &
Company, LLC, at the address provided below, the enclosed “Request for Exclusion from the Class Action Settlement”,
post-marked on or before _________, 2010. The Request for Exclusion must be signed and dated with the last four
digits of your Social Security Number inserted.
If you request exclusion, you will not receive any money from the Settlement, nor will you be considered to have released
your claims alleged in the class action. If you request exclusion from the Class Action Settlement, you may not pursue
any recovery under the Class Action Settlement. You may, however, pursue other remedies separate and apart from the
Class Action Settlement that may be available to you.
Do NOT return both a Claim Form and a Request for Exclusion Form. Should you do so, you will be deemed to have
made a claim and your Request for Exclusion will be deemed invalid.
If you are a Settlement Class Member, and you do not exclude yourself from the Class, and you do not file a claim, you
will be bound by the Settlement, receive none of the Settlement Proceeds, and be barred from separately pursuing the
claims released by the Settlement.
C. Option Three. You May Object to the Settlement.
If you are a Settlement Class Member, and you do not exclude yourself from the Settlement Class (opt out), you may
object to the Settlement before final approval of the Settlement by the Court. If you choose to object to the Settlement,
you may enter an appearance in propria persona (meaning you choose to represent yourself), or through an attorney that
you hire and pay for yourself.
In order to object to the Settlement, or any portion of it, you must file and serve any such written objection on or before
___________, 2010. Objections must be timely filed in the United States District Court, Southern District of California,
940 Front Street, San Diego, California 92101-8900, and timely served on the attorneys for Plaintiff and the attorneys for
Defendant, to be considered by the Court. If you intend to object to the Settlement, but wish to receive your share of the
Settlement Proceeds, you must timely return the enclosed Claim Form as indicated herein. If the Court approves the
Settlement despite any objections and you have not returned the enclosed Claim Form, you will NOT receive your share
of the Settlement Proceeds.
D. Option Four. Do Nothing.
If you are a Settlement Class Member, and you do not file a claim and do not exclude yourself from the class, you will be
bound by the Settlement, receive none of the Settlement Proceeds, and be barred from separately pursuing the claims
released by the Settlement.
The judgment will bind all Settlement Class Members who do not request exclusion. Any member who does not request
exclusion may, if the member so desires, enter an appearance through his or her own lawyer.
IX.     How Much Money Will I Get If I Make A Proper Claim And Do Not Request Exclusion?
As mentioned above, Defendant have agreed to pay a Gross Settlement Amount of $750,000.00 in consideration for this
Settlement and a release of all claims asserted in the lawsuit by the Settlement Class against it. The distribution formula is
set forth in Section VII and the number of workweeks you worked and your anticipated minimum share of the Settlement
are set forth in the Claim Form enclosed with this Notice. In the event the Court approves less than the full amount
requested for attorneys’ fees, or attorneys’ costs or the enhancement, then the amount not awarded will be added to the
Net Settlement Fund.
To the extent that Class Members fail to make claims, the unclaimed portion of the Net Settlement Amount will be
redistributed proportionally among Class Members who made claims provided that the unclaimed portion of the Net
Settlement Amount is greater than $20,000. If you timely make a claim this will increase your Settlement share. If the
unclaimed portion of the Net Settlement Amount is less than $20,000, the unclaimed portion of the Net Settlement
Amount will be distributed to an agreed upon cy-pres recipient.
X.    Additional Important Information
You will get your share of the Settlement Proceeds only if you return a signed and dated Claim Form postmarked on or
before _______________, 2010. It is your responsibility to ensure that the Claims Administrator has received your
timely Claim Form. You may contact the Claims Administrator at the toll-free number listed at the bottom of each page to
confirm it has been timely received. It also is your responsibility to keep a current address on file with the Claims
Administrator to ensure that you receive your Settlement payment should the Court order final approval of the Settlement.
XI.     Who Can I Contact If I Have Further Questions?
The Court-appointed Administrator for this Class Action Settlement is as follows:
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           Case 3:09-cv-01736-LAB -JMA Document 21-2                  Filed 12/06/10 Page 68 of 73
                                      Fletcher v. Verizon Enterprise Delivery
                                                Gilardi & Co. LLC
                                                   P.O. Box 8060
                                           San Rafael, CA 94912-8060
                                                  1-888-955-2717
If you have questions, you may call the Claims Administrator, toll free at 1-888-955-2717. Ask about the Fletcher v.
Verizon Class Settlement. You may also call or e-mail any of the attorneys for Plaintiffs listed in Section VI above.
PLEASE DO NOT CALL THE COURT.




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        Settlement Agreement - EXHIBIT “B”
              Case 3:09-cv-01736-LAB -JMA Document 21-2                      Filed 12/06/10 Page 70 of 73
                                                     CLAIM FORM
                                                 In the Matter of
                                  Fletcher v. Verizon Enterprise Delivery, LLC
            United States District Court, Southern District of California, Case No. 09-cv-1736-LAB

1. CLAIMANT IDENTIFICATION


        «Barcode» Claim #: KSRFH1-«Claim»-«CkDig»                    Address Changes:
        «FName» «LName»
        «Addr1» «Addr2»
        «City», «ST» «Zip»


   (         )                                                       (        )
    Area Code          Daytime Telephone Number                       Area Code          Evening Telephone Number
                                 If any of the information above is incorrect,
                       YOU MUST provide the correct information in the space provided above.

INSTRUCTIONS:
IF YOU AGREE TO PARTICIPATE IN THE SETTLEMENT, COMPLETE THIS CLAIM FORM TO
RECEIVE YOUR MONETARY RECOVERY, AND PROMPTLY RETURN THIS FORM POSTMARKED ON
OR BEFORE _____________, 2010 TO:
                                           Fletcher v. Verizon Enterprise Delivery
                                                     Gilardi & Co. LLC
                                                        P.O. Box 8060
                                                  San Rafael, CA 94912-8060
2. EMPLOYMENT WITH VERIZON ENTERPRISE DELIVERY, LLC (“VED”)
    Section A: Claim Based on VED’s Records
VED’s records identify you as a member of the Settlement Class. You may submit the enclosed Claim Form to get money
from this Settlement if you worked for VED in California; and and held one or more of the following titles: (a) Technical
Specialist – installation and maintenance, (b) Specialist – installation and maintenance, (c) Analyst – installation and
maintenance, or (d) Coordinator – installation and maintenance, between August 10, 2005 and ________________, 2010
(“Fletcher Class Period”).
The settlement formula is set forth in the Notice you received with this Claim Form at Page 3. The amount that you will
receive if you participate in the Settlement depends on the amount of workweeks VED’s records show that you worked in
covered positions during the Fletcher Class Period, whether you worked on the Kaiser account and whether you previously
signed a release of claims. If you previously signed a release of all claims, the amount that you will receive if you participate
in the Settlement will be reduced by seventy percent (70%). To the extent that class members fail to make claims, the
unclaimed portion of the Net Fund Value will be redistributed proportionally among class members who made claims
provided that the unclaimed portion of the Net Settlement Amount is greater that $20,000. If you timely make a claim this
will increase your Settlement share. If the unclaimed portion is less than $20,000, the unclaimed portion of the Net
Settlement Amount will be distributed to an agreed cy-pres recipient.
If you agree with the information stated above, and want to participate in the Settlement, please sign, date where indicated
below, and return this Claim Form postmarked on or before _____________, 2010 to receive your monetary recovery. If
you disagree with the information stated above, and want to participate in the Settlement, please fill in Section B
below before you sign and date this form.
Again, it is your responsibility to ensure the Claims Administrator has timely received your Claim Form. You may contact
the Claims Administrator at the toll-free number listed at the bottom of each page to ensure that your Claim Form has been
received.
                                                Questions? Call 1-888-955-2717
              Case 3:09-cv-01736-LAB -JMA Document 21-2                      Filed 12/06/10 Page 71 of 73
Equally important, is your responsibility to keep a current address on file with the Claims Administrator to ensure receipt of
your share of the Settlement.
    Section B: Claim Based on Information Provided by Class Member
Complete this section ONLY IF you believe that the information set forth in Section A above is not accurate. When you
return this Claim Form to the Claims Administrator, you must also send documentation that supports or relates to the
information that you provide in this Section B.
Information regarding [insert your name] ________________________________________, is as follows:

                   TIME PERIOD WORKED                             TOTAL NUMBER OF WEEKS WORKED
        1.
        2.
        3.
3. TO RECEIVE YOUR SETTLEMENT PAYMENT
YOU MUST COMPLETE, SIGN AND RETURN THIS CLAIM FORM TO THE CLAIMS ADMINISTRATOR
POSTMARKED BY U.S. MAIL ON OR BEFORE ______________, 2010, IN THE MANNER SET FORTH
BELOW:
You may return this Claim Form BY FIRST CLASS, U.S. MAIL, POSTAGE PAID OR EQUIVALENT, POSTMARKED
ON OR BEFORE ______________, 2010, ADDRESSED AS FOLLOWS:
                                           Fletcher v. Verizon Enterprise Delivery
                                                     Gilardi & Co. LLC
                                                        P.O. Box 8060
                                                San Rafael, CA 94912-8060
It is very strongly recommended that you keep a copy of your postmarked return envelope or other proof which reflects the
timely submission of your claim, and a copy of this Claim Form.
                                     BE SURE TO COMPLETE AND RETURN THIS CLAIM
                                      FORM WHEN MAILING TO THE ADMINISTRATOR
If you move, it is your responsibility to send the Claims Administrator your new address and contact information to ensure
receipt of further notices and your settlement payment.
If you are eligible and have submitted a valid and timely Claim Form, and the Class Action Settlement has been finally
approved by the Court, payment will be made to you in approximately ___months.
4. RELEASE
Upon final approval by the Court, the Settlement Class, and each Settlement Class Member who has not submitted a timely
and valid Request for Exclusion Form, will release Verizon Enterprise Delivery, LLC and all parent or affiliated entities of
VED; (ii) all past or present subsidiaries, divisions, parents, predecessors, affiliates, successors or assigns of VED; and (iii)
any past or present members, shareholders, officers, agents, employees, advisors, insurers, attorneys, or representatives of
VED or of its parent or affiliated entities, from any and all claims asserted in the Fletcher Lawsuit, and including all claims
that could be asserted based on the facts alleged in the Complaint, against the Released Parties or any of them.
PLEASE NOTE: PARTICIPATION IN THIS SETTLEMENT AND RELEASE WILL HAVE NO DIRECT OR INDIRECT
IMPACT ON ANY SEVERANCE AGREEMENT ENTERED INTO OR OFFERED TO ANY CLASS MEMBER BY
VERIZON ENTERPRISE DELIVERY, LLC.

Signed: _______________________________                   Date: _________________________

Print Name: ____________________________                  Last 4 Digits of Soc. Sec. # _____ - _____ - _____ - _____




                                                Questions? Call 1-888-955-2717
Case 3:09-cv-01736-LAB -JMA Document 21-2   Filed 12/06/10 Page 72 of 73




                          EXHIBIT #3
Case 3:09-cv-01736-LAB -JMA Document 21-2   Filed 12/06/10 Page 73 of 73
     Case 3:09-cv-01736-LAB -JMA Document 21-3         Filed 12/06/10 Page 1 of 2



 1   BLUMENTHAL, NORDREHAUG & BHOWMIK
      Norman B. Blumenthal (State Bar #068687)
 2    Kyle R. Nordrehaug (State Bar #205975)
      Aparajit Bhowmik (State Bar #248066)
 3   2255 Calle Clara
     La Jolla, CA 92037
 4   Telephone: (858)551-1223
     Facsimile: (858) 551-1232
 5
     UNITED EMPLOYEES LAW GROUP
 6    Walter Haines, Esq. (CSB #71075)
     65 Pine Ave, #312
 7   Long Beach, CA 90802
     Telephone: (562) 256-1047
 8   Facsimile: (562) 256-1006
 9   Attorneys for Plaintiffs
10
11                                UNITED STATES DISTRICT COURT
12                          SOUTHERN DISTRICT OF CALIFORNIA
13
14    BRENT FLETCHER; on behalf of               CASE No. 09-CV-1736 LAB POR
      himself, and on behalf of all persons
15    similarly situated,                        PROOF OF SERVICE

16                  Plaintiffs,

17    vs.                                        Hearing Date:     April 25, 2011
                                                 Hearing Time:     11:45 a.m.
18    VERIZON COMMUNICATIONS INC., a
      corporation doing business as VERIZON; Judge: Hon. Larry A. Burns
19    VU VERIZON ENTERPRISE                  Courtroom: 9
      DELIVERY, an unknown entity;
20    VERIZON ENTERPRISE DELIVERY
      LLC, a limited liability company; and
21    DOES 1 through 10,

22                  Defendants.

23
24
25
26
27
28

                                                 1
                                          PROOF OF SERVICE
     Case 3:09-cv-01736-LAB -JMA Document 21-3                Filed 12/06/10 Page 2 of 2



 1                                   CERTIFICATE OF SERVICE
 2          I, am, at all relevant times, was a citizen of the United States and a resident of the
 3   County of San Diego and am employed by the attorney of record in this action located at
 4   2255 Calle Clara, La Jolla, CA 92037. I hereby certify that on November 11, 2010, I served
 5   the following document(s) in the manner described below:
 6          (1)    NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS
 7                 FEES, COSTS AND EXPENSES
 8          (2)    PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN
 9                 SUPPORT OF MOTION FOR AWARD OF ATTORNEYS' FEES,
10                 COSTS AND EXPENSES
11          (3)    DECLARATION OF NORMAN B. BLUMENTHAL IN SUPPORT OF
12                 MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND
13                 EXPENSES
14          (4)    [PROPOSED] ORDER AWARDING ATTORNEYS’ FEES AND
15                 LITIGATION EXPENSES TO CLASS COUNSEL
16   XX_    (BY ELECTRONIC SERVICE): I caused the listed documents to be electronically filed
17          through the CM/ECF system at the United States District Court for the Southern District of
18          California which generates a Notice of Electronic Filing to all parties and constitutes service
19          of the electronically filed documents on all parties for purposes of the Federal Rules of Civil
20          Procedure.
21   _XX_ (Federal): I declare that I am employed in the office of a member of the bar of this Court at
22          whose direction the service was made, and that the foregoing is true and correct under
23          penalty of perjury.
24          I declare under penalty of perjury under the laws of the State of California that the
25   foregoing is true and correct. Executed on December 6, 2010 at San Diego, California.
26
                                                               /s/ Norman B. Blumenthal
27                                                                Norman B. Blumenthal
28

                                                       2
                                             PROOF OF SERVICE
      Case 3:09-cv-01736-LAB -JMA Document 21           Filed 12/06/10 Page 1 of 2



 1   BLUMENTHAL, NORDREHAUG & BHOWMIK
      Norman B. Blumenthal (State Bar #068687)
 2    Kyle R. Nordrehaug (State Bar #205975)
      Aparajit Bhowmik (State Bar #248066)
 3   2255 Calle Clara
     La Jolla, CA 92037
 4   Telephone: (858)551-1223
     Facsimile: (858) 551-1232
 5   Website: www.bamlawca.com
 6   Attorneys for Plaintiff
     Additional Attorneys on Signature Page
 7
 8
 9
10                                  UNITED STATES DISTRICT COURT
11                            SOUTHERN DISTRICT OF CALIFORNIA
12
13    BRENT FLETCHER; on behalf of                 CASE No. 09-CV-1736 LAB (POR)
      himself, and on behalf of all persons
14    similarly situated,
                                                   NOTICE OF MOTION AND MOTION
15                    Plaintiffs,                  FOR AWARD OF ATTORNEYS
                                                   FEES, COSTS AND EXPENSES
16    vs.

17    VERIZON COMMUNICATIONS INC., a               Hearing Date:       April 25, 2011
      corporation doing business as VERIZON;       Hearing Time:       11:45 a.m.
18    VU VERIZON ENTERPRISE
      DELIVERY, an unknown entity;                 Judge: Hon. Larry A. Burns
19    VERIZON ENTERPRISE DELIVERY                  Courtroom: 9
      LLC, a limited liability company; and
20    DOES 1 through 10,

21                    Defendants.

22
23
24
25
26
27
28

            NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES
                                                                     Case No. 09cv1736 LAB (POR)
      Case 3:09-cv-01736-LAB -JMA Document 21             Filed 12/06/10 Page 2 of 2



 1   TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
 2          PLEASE TAKE NOTICE that on April 25, 2011 at 11:45 a.m. before the Honorable
 3   Larry A. Burns in Courtroom 9 of the United States District Court for the Southern District of
 4   California, Plaintiff Brent Fletcher (“Plaintiff”) will move and hereby does move for an order
 5   awarding attorneys’ fees, litigation expenses and Plaintiff’s service award, in accordance with
 6   the Settlement Agreement. The motion will be based upon this notice, the memorandum of
 7   points and authorities filed in support thereof, the declarations filed in support thereof, the
 8   Settlement Agreement between the parties the complete files and records in this action, and such
 9   additional papers and argument as may be presented at or in connection with the hearing.
10          Because this motion is brought in accordance with the Settlement Agreement between
11   the parties, Plaintiff does not anticipate any opposition to this motion by the Defendant.
12
13   Dated: December 6, 2010                   BLUMENTHAL, NORDREHAUG &
                                               BHOWMIK
14
                                               By:     /s/ Norman B. Blumenthal
15                                                     Norman B. Blumenthal
                                                       Attorneys for Plaintiff
16
                                               UNITED EMPLOYEES LAW GROUP
17                                             Walter Haines (Bar No. 71075)
                                               65 Pine Avenue, #312
18                                             Long Beach, CA 90802
                                               Telephone: (877) 696-8378
19                                             Facsimile: (562) 256-1006
20
21
22
23
24
25
26
27
28

         NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS FEES, COSTS AND EXPENSES
                                            -1-                   Case No. 09cv1736 LAB (POR)

				
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