LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON ... · 5 6 7 8 9 10 11 12 13 14 15 16 17 18...

Garcia v. Iovate Health Sciences USA, Case No. 1402915

DECLARATION OF GREGORY S. WESTON IN SUPPORT OF JOINT MOTION FOR APPROVAL OF ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) [email protected] 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006; Facsimile: (619) 564-6665

THE WESTON FIRM GREGORY S. WESTON (239944) [email protected] ANDREW C. HAMILTON (299877) [email protected] 1405 Morena Blvd., Ste. 201 San Diego, CA 92110 Telephone: (619) 798-2006; Facsimile: (313) 293-7071

Counsel for Plaintiff-Intervenor Kevin Branca KIRTLAND & PACKARD LLP MICHAEL LOUIS KELLY (182063) [email protected] BEHRAM V. PAREKH (180361) [email protected] HEATHER M. BAKER (261303) [email protected] 2041 Rosecrans Ave, Third Floor El Segundo, California 90245 Telephone: (310) 536-1000; Facsimile: (310) 536-1001

Counsel for Plaintiff Daniel Garcia

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA

DANIEL GARCIA, on behalf of himself and all other similarly situated,

Plaintiff, v.

IOVATE HEALTH SCIENCES U.S.A. INC., a Delaware corporation, and DOES 1-10, Inclusive, Defendants. __________________________________ KEVIN BRANCA, an individual, on behalf of himself and all others similarly situated. Plaintiff-Intervenor. CHRIS LEATON and LINDSEY DUNN, on behalf of themselves and all others similarly situated, Plaintiff-Intervenors.

Case No. 1402915 DECLARATION OF GREGORY S. WESTON IN SUPPORT PLAINTIFFS KEVIN BRANCA AND DANIEL GARCIA’S JOINT MOTION FOR ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARDS Date: June 21, 2017 Time: 9:30 a.m. Dept.: 1 Judge: Hon. Pauline Maxwell

1 Garcia v. Iovate Health Sciences USA, Case No. 1402915


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I, Gregory S. Weston, declare:

1. I am counsel of record for Plaintiff/Intervenor Kevin Branca (“Mr. Branca”) in this

action. I am a member in good standing of the State Bar of California. I submit this declaration in

support Plaintiffs Kevin Branca and Daniel Garcia’s Joint Motion for Attorneys’ Fees, Costs, and

Incentive Awards. I make this Declaration based on personal knowledge and if called to testify, I

could and would competently testify to the matters contained herein. Class Counsel’s Background and Qualifications

2. I am the Weston Firm’s founder, as well as the principal attorney timekeeper on this

matter. I graduated from Harvard Law School in 2004, and worked for the class action law firm now

known as Robbins, Geller, Rudman & Dowd until I founded my own firm in January 2008. During

this entire time, nearly all of my practice has been dedicated to representing plaintiffs in consumer

fraud class actions.

3. David Elliot was of counsel at the Weston Firm from June 2015 through October

2016. He is an Honors Scholar and graduate from Chicago-Kent College of Law. Before joining us,

he worked on securities class actions at Johnson & Weaver LLP. After law school, he was an

associate at Skadden Arps, where his work included defending class actions. Mr. Elliot has been a

strong participant in pro bono legal work on behalf of political asylum seekers, non-profit groups, and

civil rights litigants.

4. Melanie Persinger is a 2010 graduate of the University of Michigan Law School where

she was Editor of the Michigan Telecommunications and Technology Law Review. She joined the

Weston Firm as an associate shortly after law school.

5. Andrew C. Hamilton is a 2014 graduate of the University of San Diego School of Law

where he was an Editor of the San Diego Journal for Climate and Environmental Law. Before joining

the Weston Firm, Mr. Hamilton defended consumer class actions at Gordon Rees, and volunteered

with the Legal Aid Society of San Diego Domestic Violence Clinic.

6. Attached hereto as Exhibit 1 is a true and correct copy of our firm resume.



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The Weston Firm’s Rates

7. The requested rates from Plaintiff’s motion are as follows:

Timekeeper Position Graduation Year Hourly Rate

Gregory S. Weston Partner 2004 $605

Jack Fitzgerald Partner 2004 $580

David Elliot Of Counsel 2002 $525

Melanie Persinger Associate 2010 $340

Andrew C. Hamilton Associate 2014 $305

Paralegals/ Summer Associate $215

8. In August 2016, the Honorable Haywood S. Gilliam, Jr. approved the exact rates

requested here for myself, Mr. Elliot, Ms. Persinger, and our firm’s paralegals. Guttmann v. Ole

Mexican Foods, Inc., 2016 U.S. Dist. LEXIS 100534, at *15 (N.D. Cal. Aug. 1, 2016). Further, Judge

Gilliam approved a rate of $305 for Paul Joseph, a former Weston Firm associate with a similar level

of experience to Mr. Hamilton. Id.

9. In July 2014, the Honorable Richard Seeborg approved hourly rates of $580 for myself

and Mr. Fitzgerald, $340 for Ms. Persinger, $305 for Paul Joseph, an associate with a similar level

experience to Mr. Hamilton, and $205 for my firm’s paralegals. In re Quaker Oats Labeling Litig.,

2014 U.S. Dist. LEXIS 104941, *4 (N.D. Cal. July 29, 2014).

10. In In re Apple and AT&T iPad Unlimited Data Plan Litig., described above, the

Honorable Ronald M. Whyte awarded fees based on rates of $550 for myself and Mr. Fitzgerald,

$315 for Ms. Persinger, and $195 for paralegals. In re Apple and AT&T iPad Unlimited Data Plan

Litig, Case No. 5:10-cv-02533 (N.D. Cal.), Dkt. No. 190-3 (showing requested rates), Dkt. Nos. 207-

208 (awarding attorney fees).

11. In In re Qunol CoQ10 Liquid Labeling Litigation, described above, my firm was

awarded fees based on rates of $550 for myself and Mr. Fitzgerald, $315 for Ms. Persinger, and $195

for paralegals. 2013 U.S. Dist. LEXIS 35066, at *8-10 (awarding attorneys’ fees), and No. 8:11-cv-



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00173-DOC, Dkt. No. 176 (showing rates approved by Court). The Honorable David O. Carter

approved my firm’s requested rates as “fair and reasonable.” Qunol, 2013 U.S. Dist. LEXIS 35066, at

*13.

12. In October 2012, my firm was awarded fees based on the rate of $525 for myself and

Mr. Fitzgerald, $300 for Ms. Persinger, and $195 for paralegals in Gallucci et al. v. Boiron, Inc. et

al., 2012 U.S. Dist. LEXIS 157039 (S.D. Cal. Oct. 31, 2012). Judge Houston noted my firm’s

“hourly billing rates [are] reasonable in light of . . . Class Counsels’ reputation, experience,

competence, and the prevailing billing rates for comparably complex work by comparably-qualified

counsel in the relevant market . . . .” id. at *25-26.

13. In June 2012, the Weston Firm was awarded fees based on the same rates as Gallucci

in In re Ferrero Litig., 2012 U.S. Dist. LEXIS 94900 (S.D. Cal. July 9, 2012). See Ferrero, Dkt. No.

114-4 (showing hourly rates). Judge Marilyn L. Huff found that “[t]hese amounts are appropriate

given the contingent nature of the case and the excellent results obtained for the Class . . . .” Id. at *

11. Further, the Weston Firm’s billing rates were “justified by prior awards in similar litigation and

the evidence presented with their motion showing these rates are in line with prevailing rates in this

District.” Id.

14. In addition, in June 2012, the Honorable Margaret M. Morrow awarded the Weston

Firm fees in connection with settling a lawsuit against Smart Balance, Inc., based on an hourly rate of

$500 for myself and Mr. Fitzgerald, $275 for Ms. Persinger, and $150 for paralegals in In re Nucoa

Real Margarine Litigation, Case No. 10-cv-927-MMM (C.D. Cal.). Dkt. No. 140-2 at ¶ 26 (showing

requested rates); Dkt. No. 156 (Order granting Final Approval).

15. In June 2011, the Weston Firm was awarded fees based on a rate of $500 for myself

and Mr. Fitzgerald in Red v. Unilever United States, Case No. 10-cv-387-JW (N.D. Cal.). See

Unilever, Dkt. No. 152 at ¶ 5 (showing $500 rate for myself), Dkt. No. 163 (Order granting Final

Approval).



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16. I believe this application’s requested rates are consistent with attorneys of similar

experience, skill, and reputation. For example, our requested rate easily fall within the ranges

approved by several California courts:

• Friedman v. 24 Hour Fitness USA, Inc., 2010 U.S. Dist. LEXIS 143816, at *24-25 (C.D. Cal.

July 12, 2010) (approving partner rates of $550-750 and associate rates of $250-4901);

• Pom Wonderful, LLC v. Purely Juice, Inc., 2008 U.S. Dist. LEXIS 110460, at *11-12 (C.D.

Cal. Sept. 22, 2008) (approving partner rates of $450-750 and associate rates of $275-$425);

• Housing Rights Ct. v. Sterling, 2005 U.S. Dist. LEXIS 31872, at *10 (C.D. Cal. Nov. 2, 2005)

(noting attorney billing rates of up to $1,000 per hour in Los Angeles.);

• Lingenfelter v. Astrue, 2009 U.S. Dist. LEXIS 87685, at *11 (C.D. Cal. Sept. 3, 2009)

(finding $600 rate reasonable); and

• Create-A-Card, Inc. v. Intuit, Inc., 2009 WL 3073920, at *2 (N.D. Cal. Sept. 22, 2009)

(approving rates of $315-700 for attorneys).

17. Similarly, several California courts have approved specific fee rates similar to those of

Class Counsel:

Source Graduation Year (Years experience)

Hourly Rate

Year of Award

Current Application

2002 (15)

2004 (13)

2004 (13)

2010 (7)

2014 (3)

$525

$605

$580

$340

$305

2017

Bellinghausen v. Tractor Supply Co., 2015 U.S.

Dist. LEXIS 35266, at *39 (N.D. Cal. Mar. 19,

1999 (16)

2009 (6)

2011 (4)

$650

$425

$375

2015

1 See Friedman, Dkt. No. 556 at 23.



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2015)

Miller v. Ghirardelli Chocolate Co., 2015 U.S.

Dist. LEXIS 20725, at *18 (N.D. Cal. Feb. 20,

2015)

2003 (12)

2007 (8)

2008 (7)

$700

$500

$450

2015

Parkinson v. Hyundai Motor Am., 796 F. Supp.

2d 1160, 1172-73 (C.D. Cal. 2010)

2000 (10)

2003 (7)

$545

$445

2010

Iorio v. Allianz Life Ins. Co. of N. Am., Inc.,

2011 U.S. Dist. LEXIS 21824, at *31 (S.D. Cal.

Mar. 3, 2011)

2004 (7) $500 2011

Vasquez v. Rackauckas, 2011 U.S. Dist. LEXIS

83696, at *6-7 (C.D. Cal. July 29, 2011)

2000 (11)

2001 (10)

2002 (9)

2003 (8)

2006 (5)

2008 (3)

$525

$550

$490

$505

$460

$385

2011

Rogel v. Redevelopment Agency of the City of

Lynwood, BS106592 (L.A. Super. Ct.)2

2004 (5)

2005 (4)

2006 (3)

2007 (2)

2008 (1)

$525

$495

$470

$400

$345

2009

Yoo v. Wendy’s, 07-cv-4515 (C.D. Cal. Mar. 13,

2009)

2001 (8) $550 2009

18. Our requested paralegal rate of $215 is also consistent with rates commonly approved

by Northern District Courts. See, e.g., In re Magsafe Apple Power Adapter Litig., 2015 U.S. Dist.

LEXIS 11353, *37 (N.D. Cal. Jan. 30, 2015 (“The relevant community for this action is the Northern

2 See Exhibit 2 (Declaration listing rates) and Exhibit 3 (Order) hereto



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District of California. In the Bay Area, reasonable hourly rates for partners range from $560 to $800,

for associates from $285 to $510, and for paralegals and litigation support staff from $150 to $240.”

(collecting cases)); Create-A-Card, 2009 U.S. Dist. LEXIS 133446, at *5 (N.D. Cal. Sept. 22, 2009)

(approving rates of $150-$235 for paralegals). Other District Courts in California have also approved

similar rates. See Iorio, 2011 U.S. Dist. LEXIS 21824, at *32 (S.D. Cal.) (finding $195 rate reasonable

five years ago); Craft v. County of San Bernardino, 624 F. Supp. 2d 1113, 1122 (C.D. Cal. 2008)

(finding $225 rate reasonable for paralegals eight years ago).

19. Survey data further confirms the reasonableness of counsel’s rates. A 2010 survey by

the National Law Journal3 shows rates of firms in San Francisco from $290-$750 for partners and

$210-$480 for associates.

A Nationwide Sampling of Law Firm Billing Rates, published by the National Law Journal (‘NLJ Report’), which includes two San Francisco law firms, Littler Mendelson which sets its high partner rate at $650.00 and Townsend and Townsend which sets its high partner rate at $750.00.

Minor v. Christie’s, Inc., 2011 U.S. Dist. LEXIS 9219 (N.D. Cal. Jan. 28, 2011). According to the

same survey, rates in Los Angeles range from $495-$820 for partners and $270-$620 for associates,

and in Irvine from $395-$710 for partners and $285-$450 for associates. Rates of attorneys at Luce,

Forward, Hamilton & Scripps in San Diego range from $350-$670 for partners and $245-$445 for

associates. Thus our requested rates fall within and below the average/median range of the typical

rates of firms practicing complex litigation in California. See generally Catala v. Resurgent Capital

Servs., L.P., 2010 U.S. Dist. LEXIS 63501, at *19 n.3 (S.D. Cal. June 22, 2010) (relying on same to

award fees).

20. Thus, the Weston Firm’s requested partner rates of $605 and $580, requested of

counsel rate of $525, associate rates of $340 (class of 2010) and $305 (class of 2014 and 2016), and

requested a paralegal and summer associate rate of $215 are in line with rates charged by other

complex civil litigators in California. See generally Catala, 2010 U.S. Dist. LEXIS 63501, at *19 n.3.

3 The NLJ Survey is not being filed due to its volume. The number of law firms responding to the annual survey has been declining each year.



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Moreover, recent fee awards in consumer class actions in California illustrate the reasonableness of

my firm’s requested rates. For example, in Brazil et al. v. Dell Inc. et al., No. 5:07-cv-01700-RMW

(N.D. Cal.), class counsel sought fees based on hourly rates ranging from $750-$875 for partners in

Lieff Cabraser’s San Francisco office. See id., Dkt. No. 320-1 at Ex. A. Lieff Cabraser also sought

fees based on hourly rates ranging from $390-$475 for associates. Id. The court found these rates to

be “reasonable and in line with prevailing rates in this District for personnel of comparable

experience, skill, and reputation.” Brazil v. Dell Inc., 2012 U.S. Dist. LEXIS 47986, at *3 (N.D. Cal.

Apr. 4, 2012).

Class Counsel’s Time Billed

21. My firm’s practice is to keep contemporaneous records for each timekeeper and to

regularly record time records in the normal course of business, and we kept time records in this case

consistent with that practice. Moreover, our firm’s practice is to bill in 6-minute (tenth-of-hour)

increments.

22. The total lodestar for the Weston Firm in this matter is $132,638.50, reflecting 197.3

attorney hours, and 108.7 paralegal and summer associate hours. Prior to finalizing the firm’s

lodestar, I reviewed all of our timesheets and made cuts for any errors, duplications, and instances

where I determined the hours should be reduced or not billed. In total I struck 49 separate time entries

from our raw timesheets, totaling 20.7 hours, thereby “trimming the fact” and reducing our requested

time by about 6.8%.

The Risk of Non-Payment

23. The Federal Judicial Center published a report in 1996 titled, “Empirical Study of

Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil

Rules” (“FJC Report”). The study was requested by the Judicial Conference Advisory Committee on

Civil Rules when it was considering proposals to amend Rule 23 of the Federal Rules of Civil

Procedure. The study is based on 407 class action lawsuits that either settled or went to verdict in the

two-year period from July 1, 1992 to June 30, 1994 in the following four federal judicial districts: the



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Eastern District of Pennsylvania (Philadelphia); the Southern District of Florida (Miami); the

Northern District of Illinois (Chicago); and the Northern District of California (San Francisco). FJC

Report at 3-4, 7-8.

24. For the 407 class actions, the FJC Report reports the following regarding class

certification:

• In 59 cases (14.5%), the class claims were certified for settlement purposes only. Id. at

35.

• In 93 cases (22.85%), the class claims were certified unconditionally. Id.

• Therefore, a total of 152 cases (37.35%) had certified classes, and the other 255

(62.65%) did not. Id.

• In at least 23 of the certified classes, the outcome was unfavorable to the plaintiffs.

This is based on Table 39 of the FJC Report at 179, which lists the following outcomes adverse to

plaintiffs in certified class cases (excluding classes certified for settlement purposes only): nine

dismissals by motion, one stipulated dismissal, one non-class settlement, and twelve summary

judgments against the class. Id. at 179, App. C, Table 39.

25. Thus the successful class claims from the total 407 filed class actions totaled 129 or

less (152 minus 23). Using the number 129/407 to get a percentage, 31.7% or less of the filed cases

resulted in successful class outcomes for plaintiffs. This does not account for degree of success (i.e.,

some cases could have resulted in minimal or partial success and would still be in the successful

claim category).

Categorization of Our Time

26. My firm has contributed a total of 306 hours to this litigation, including 197.3 attorney

hours and 108.7 paralegal and summer associate hours.

27. My staff reviewed my firm’s time records to allocate the amount of time spent on

work relating to specific aspects of this litigation, as reflected in this table.

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Attorney Summer Associate and Task

Hours Paralegal Hours

4.3 26.3 Work relating to pre-filing investigation and the

drafting of the initial complaint

25.5 15.3 Work relating to Defendant's Motions to Dismiss.

30.5 0.3 Work relating to Motions to Intervene.

4.2 0.0 Work relating to Motions to Appoint Lead Counsel.

0.4 3.8 Work relating to Amended Complaints.

19.8 8.6 Work relating to discovery.

63.1 20.8 Work relating to Motions to Stay.

25.4 0.7 Work relating to mediation and settlement

negotiations.

4.0 18.6 Work relating to fee motions.

8.5 4.1 Work relating to Motions for Preliminary Approval

of Settlement.

11.6 9.6 Work relating to case management.

0.0 0.6 Work relating to Motions for Final Approval.

I declare under penalty of perjury under the laws of the United States that the foregoing is true

e and correct to the best of my knowledge.

Executed on May 17, 2017, in San Diego, California.

~~(J£ Grego(J S. Weston

9 Garcia v.lovate Health Sciences USA, Case No. 1402915

DECLARATION OF GREGORY S. WESTON IN SUPPORT OF JOINT MOTION FOR APPROVAL OF ATTORNEYS' FEES, COSTS, AND INCENTIVE AWARD

I

EXHIBIT 1

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T H E W E S T O N F I R M 1405 Morena Blvd., Suite 201

San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (313) 293-7071

Firm Resume – May 2017

Gregory S. Weston has devoted nearly all of his practice to representing consumers in class actions. Mr. Weston is a member in good standing of the state bars of California and Florida and is admitted to practice in all California United States District Courts, the Central District of Illinois, and the Ninth and Sixth Circuit Courts of Appeals. Before founding his firm, he was an associate at the San Diego office of the firm now known as Robbins, Geller, Rudman & Dowd, where he represented consumers in antitrust and consumer fraud class actions. He is a graduate of Harvard Law School, where he was a Senior Editor of the Harvard Journal of Law and Public Policy and a Department of Government Teaching Fellow. Andrew C. Hamilton is an associate at the Weston Firm. He is an alumnus of Seattle Pacific University and the University of San Diego School of Law, where he received a certified concentration in Public Interest Law. In addition, he was awarded the University of San Diego Center for Public Interest Law’s Outstanding Public Interest Advocate for his efforts petitioning for Cal/OSHA regulations protecting hotel housekeepers. Before joining the Weston Firm, Mr. Hamilton defended consumer class actions at Gordon Rees, and volunteered with the Legal Aid Society of San Diego Domestic Violence Clinic. Mr. Hamilton is admitted to practice in California, including the Federal courts of the Northern and Central Districts.

THE WESTON FIRM’S SUCCESSES CLASS SETTLEMENTS In re Quaker Oats Labeling Litigation, No. 5:10-cv-502-RS (N.D. Cal.) The firm was class counsel for consumers who alleged the claims made on Defendant’s oatmeal and granola bar products were deceptive in light of the products’ trans fat content. The Weston Firm was appointed Class Counsel and obtained a settlement that provided the class with injunctive relief in the form of complete trans fat removal and labeling changes.

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Guttmann v. Ole Mexican Foods, Inc., No. 3:14-cv-4845-HSG (N.D. Cal.) The firm was class counsel for consumers who alleged the claims made on Defendant’s tortilla products were deceptive in light of the products’ trans fat content. The Weston Firm was appointed Class Counsel and obtained a settlement which was approved preliminarily. Plaintiff obtained final approval on August 1, 2016. Rosen et al. v. Unilever United States, Inc., No. 5:09-cv-2563-JW (N.D. Cal) The Weston Firm was class counsel for purchasers of soft spread and stick margarine products containing artificial trans fat. As a result of a class-wide settlement, Defendant agreed to remove artificial trans fat from about forty products. In re Nucoa Real Margarine Labeling Litigation, No. 2:10-cv-927-MMM (C.D. Cal.) The firm was sole class counsel for margarine consumers who alleged the claims made on Defendant’s Nucoa Margarine products were deceptive in light of the products’ trans fat content. The Weston Firm was appointed Class Counsel and obtained a settlement that provided the class with injunctive and monetary relief. In re Ferrero Litigation, No. 3:11-cv-205-HSC (S.D. Cal.) The firm was class counsel for Nutella consumers who alleged Defendant engaged in deceptive labeling and marketing practices. The settlement provided the class with injunctive and monetary relief. In re Qunol CoQ10 Liquid Labeling Litigation, No. 8:11-cv-173-DOC (C.D. Cal.) The firm was class counsel for consumers of a nutrition supplement. After prevailing on a nationwide California-law class certification motion, then a motion to decertify, and about one month before trial, the class obtained a settlement providing for injunctive relief and restitution. Gallucci, et al. v. Boiron, Inc. et al., No. 3:11-cv-2039-JAH (S.D. Cal.) The firm was class counsel for consumers of homeopathic drug products in an action against Boiron, Inc., a leading manufacturer of homeopathic products. Plaintiffs alleged Boiron’s labeling and advertising were misleading. The firm obtained a nation-wide settlement for the class which provided injunctive relief and restitution. Adachi, et al. v. Carlyle/Galaxy San Pedro L.P., No. 09-cv-793-MMM (C.D. Cal.) The firm was appointed sole class counsel to represent purchasers of approximately 145 Los Angeles condominiums, which resulted in a class-wide all-cash settlement of approximately $1.3 million.

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In re Apple & AT&T iPad Unlimited Data Plan Litigation, No. 5:10-cv-2553-RMW (N.D. Cal.) The firm was class counsel for consumers who purchased Apple iPad’s with data plans through AT&T. Plaintiffs alleged Defendants’ advertising and representations regarding iPads violated the Unfair Competition Law. Plaintiffs obtained a class-wide settlement which provided monetary and injunctive relief. OTHER SUCCESSES Artificial Trans Fat Ban, No. 2:13-cv-02180 (C.D. Ill.); FDA Docket No. 2013–N–1317 The firm represents University of Illinois scientist Dr. Fred Kummerow in his efforts to ensure artificial trans fat is removed from the food supply. Following years of FDA inaction on the issue, the firm, as sole counsel for Dr. Kummerow, filed a suit against the FDA under the Administrative Procedures Act. Three months after the suit was filed, the FDA provided notice that it had determined that artificial trans fat should be removed from the food supply. On June 17, 2015, the FDA finally determined that artificial trans fat was not safe for use in food. Reid v. Johnson & Johnson, et al., No. 12-56726 (9th Cir.) The firm represented a consumer in his action against the manufacturer of Benecol Spread, alleging health claims on the product’s packaging and advertising were deceptive in light of the product’s trans fat content. The district court initially granted Defendants’ motion to dismiss, ruling Defendants’ “No Trans Fat” and “No Trans Fatty Acids” claims were preempted by federal law. Plaintiff appealed the order, and in March 2015, the Ninth Circuit reversed the district Court’s preemption dismissal, determining that Plaintiff’s claims with respect to “No Trans Fat” and “No Trans Fatty Acids” were not preempted. The parties then reached a confidential settlement. Henderson v. The J.M. Smucker Company, No. 2:10-cv-4524-GHK (C.D. Cal.) This action was the catalyst forcing the defendant to reformulate a children’s frozen food production to remove trans fat. On June 19, 2013, the Honorable George H. King held the firm’s client was a prevailing Private Attorney General and entitled to her costs and attorneys’ fees. Red et al. v. Kraft Foods Global, Inc. et al, No. 2:10-1028-GW (C.D. Cal) The firm represents consumers in their action against one of the world’s largest food companies and was appointed lead counsel in a consolidated putative class action. Though not fully settled, the action has resulted in a permanent injunction barring the use of deceptive health claims on Nabisco packaged foods containing artificial trans fat, and the Court has also granted an award of attorneys’ fees.

EXHIBIT 2

Case 2:02-cv-05662-AHM -SH Document 766-4 Filed 11/03/11 Page 17 of 48 Page ID #:4501

Case 2:10-cv-00927-MMM -AJW Document 140-2 Filed 01/06/12 Page 53 of 134 Page ID #:3144

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.,

•• ~;

GIBSON, DUNN & CRUTCHER LLP Wayne Barsky (SBN 116731) Marcellus A. McRae (SBN 140308) Meghan Blanco (SBN 238171) Michael Anthony Brown (SBN 243848) Carol A. Fabrizio (SBN 258187) Kristy S. Grant (SBN 260016) 333 South Grand Avenue Los Angeles, California 9007l-3197 Tel: (213) 229-7000 Fax: (213) 229-6604 [email protected] [email protected] [email protected] [email protected]

Attorneys for PLAINTIFFS Esperanza Rogel, Gerardo Espinoza, Oscar Leon, Marcos Martinez, Jaime Torres, and CalifoniiaACORN, Los · Angeles Chapter

Additional counsel listed on following page.

• · ; ;-

FILED LOS ANGELES SUPERIOR COURT

APR 09 2009

JOHN~~~CLERK

BY JA~TA~OR, DEPUTY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES- CENTRAL DISTRICT

ESPERANZA ROGEL, eta!.,

PLAINTIFFS,

v.

REDEVELOPMENT AGENCY OF THE CITY

OF LYNWOOD,

Defendant.

) Case No. BS 106592

DECLARATION OF WAYNE BARSKY IN

SUPPORT OF PLAINTIFFS' MOTION FOR

ORDER AWARDING ATTORNEYS' FEES

Hearing Date: May 1, 2009 Hearing Time: 9:00 a.m. Hearing Place: Dept: 20

Judge: Hon. Kevin C. Brazile

24 I~!

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

(Filed Concurrently: Plaintiffs' Motion for

Award of Attorneys Fees; Memorandum of

Points and Authorities in Support thereof;

Supporting Declarations of Wayne Barsky,

Marcellus McRae, Meghan Blanco, Michael A.

Brown, Kristy S. Grant, Carol A. Fabrizio,

Rebecca F. Thornton, Carol A. Sobel, Theresa

Traber, Shashi Hanuman, Michael Rawson,

Deborah Collins, Craig Castellanet, Karen R.

Growdon, and Cynthia Merrill)

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Gibson, Dunn & Crulchor LlP

) )

·Complaint Filed; December 21,2006

DECLARATION OF WAYNE BARSKY lN SuPPORT OF PLAINTIFFS' MOTION

FOR ORDER AWARDING ATTORNEYS' FEES



1 DECLARATION OF WAYNE BARSKY

2 I, Wayne Barsky, declare:

3 1. I am an attorney, duly licensed to practice law before all courts in the State of

4 Califomi~ and I am a partner ofthe law firm Gibson, Dunn & Crutcher LLP, counsel for Plaintiffs

5 Esperanza Rogel, Gerardo Espinoza, Oscar Leon, Marcos Martinez, and Jaime Torres, and California

6 A~ORN, Los Angeles Chapter (collectively "Plaintiffs") in the above-captioned matter. I make this

7 declaration in support of Plaintiffs' Motion for Order Awarding Attorneys' Fees ("Motion"). If called

8 as a witness in the above-reference matter, I could and would testify competently to the following

9 facts, which I know to be true based on my personal knowledge, or which I believe and understand to

10 be true based on my leadershlp role in this case, my review of documents, and my cornmuirications

11 with my colleagues and co-counsel.

12 Qualifications of Declarant

13 2. I have supervised this case since it came to our firm in September 2008. I am

14 currently serving as the firm's National Co-Chairman of Intellectual Property Practice Group. I

15 received my law degree from the University of California at Berkeley, Boalt Hall School of Law in

16 1983, and my Bachelor of Arts from the State University ofNew York at Binghamton in 1979. I am

17 admi~ed to practice in California, the District of Columbia and Missouri, and have extensive trial and

18 appellate experience in federal and state court. I frequently lecture at PLI and other professional

19 conferences, have chaired the National Intellectual Property Institute for the Corporate Counsel

20 Institute, and am on the Planning C~mroittee of the USC Intellectual Property ·Institute. My practice

21 consists almost entirely of complex intellectual property litigation, particularly patent litigation in the

22 federal courts and the U.S. International Trade Commission.

23 1\f 3. · I am extensively involved in community and pro bono affairs, currently serving as a

' . 24 ~~ rember of the Executive Committee and Board of Directors of Public Counsel Law Center, the

25 ~~hation's largest pro bono law office, where I am also the immediate past Chairman. I have served as

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G\l>o,..,, t>uno & CrutchortLP

a member of the Board of Governors of the Association of Business Trial Lawyers, and as a Judge . .

Pro Tempore in the Los Angeles Superior Court systeril. I received a California State Bar

Commendation for my community service and pro bono activities some years ago.

1 DECLARATION OF WAYNE BARSKY IN SUPPORT OF PLAINTIFFS' MOTION

FOR ORDER A WARDlNG ATIORNEYS' FEES



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certain time entries that were mis-entered into our computer system, and which should have been

charged to other clients; these time entries were removed entirely from the attached ·billing records.

21. As of March 18, 2009, Gibson Durm inctmed $1,304,645.50 in legal fees and

$38,810.34 iQ. costs and o~t-of-pocket expenses in connection with its prosecution of Plaintiffs'

action. At my direction, however, we have excluded from our lodestar figure numerous attorney

(and non-attorney) hours and costs incurred in an effort to seek recovery only for non-duplicative and

particularly relevant work. Toward that end, we have: (a) deducted all time, regardless of task, of

attorneys who worked less than 10 total hours on the case; (b) deducted numerous hours for drafts of

discovery that were not ultimately used; (c) reduced or eliminated attorneys' time entries for

· depositions and hearings where more than one attorney was present; (d) reduced all time charge for . .

reviewing _and summarizing deposition transcripts; and, (e) reduced time charged for an attorney's

general background work when the time invested in activities were disproportionate to the time spent .

substantively working on the case.

22. As noted in Plaintiffs' Motion for Award of Attorneys Fees, I calculated the Fees

Charged using the firm's actual 2009 rates. The following charts detail the 2009 rates of each Gibson

Dunn attorney who worked on this matter, the total charges actually inctmed by those attorneys on

this matter through March 17,2009, and the total amount the finn has included in its lodestar figure.

M. Barsky Partner, JD 1983

Marcellus A. McRae $785 339.90 $266,821.50 338.7 $265,879.50 !\ Partner, JD 1988 · ' , ~------------------r-------1-------~--------~--~------~----------~ ·; Daniel M. Kolkey $840 0.3 $252 0.3

~~ Partner, JD 1977

Danielle A. Katzir Associate, JD 2004

$525 0.4

$0

$210 0 $0

Michael ~thony Brown

$495 746.9 $369,715.50 738.77 $365,691.15


FOR OliDER AW ARDlNG A TIORNEYS' FEES



e 1

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3 $495 766.00 $379,170.00 747.36 $369,943.20

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5 Samy L. Sadighi $495 5.7 $2,821.50 0 $0

Associate, JD 2005

6 Melissa L. Barshop $470 46.20 $21,714.00 46.20 $21,714.00

7 Associate, JD 2006

8 Lora A. Cicconi $400 0.3 $120 0 $0


10 Kristy S. Grant $345 183.30 $63,238.50 173.58 $59,885.10


12 Carol A. Fabrizio $345 184.20 $63,659.00 . 168.70 $58,201.50

Associate, JD 2008

13 Sonam Mak.ker $345 50.80 17,526.00 21.95 $7,572.75


15 Brooke L. Myers 27.70 $9,556.50 27.70 $9,556.50


17 Bobbie J. Andelson $345 71.20 $24,564 23.00 $7,935.00


19 Carrie A. Ligozio $345 7.5 $2,587.50 0 $0

Associate, JD 2008

20 SamK.Kim $345 33.20 $11,454.00 3.28 $1,131.60

2 1 Associate, JD 2008 ! .

22 HaneL. Kim $345 5.15 $1,776.75 0 $0


24 Total through 2,545.5 $1,304,645.50 2,364.69 $1,235,521.05

,f 3/17109 25 ·!

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27 23. The following chart details the 2009 rates of each Gibson Dunn paralegal who worked

28 on thls matter, the total charges actually incurred by those paralegals on this matter through

Gitnoo. Dunn & 15

Crutcher l l P DECLARATION OF WAYNE BARSKY IN SUl'PORT OF PLAIN:IIFFS' MOTION FOR ORDER A WARDING ATTORNEYS' FEES



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e e March 17, 2009, and the total amount the firm has included in its lodestar figure.

I believe the hourly rates for Gibson Dunn's paralegals and litigation support staff are reasonable and

similar to those of paralegals and litigation technical support staff doing similar work at comparable

law firms in Los Angeles. Attached hereto as Exhibit L is a true and correct copy of an article

entitled "Paralegal Pay: Top Managers Earn $1.02,000 Plus Bonuses," which appeared in the July

2007 issue of Law Firm Management. The article states that the national mediaq. hourly rate for . .

paralegal work in mid-2007 was $160.

Total Paralegal Fees Actually Incurred & Charged

Staff Rate Total Hours Total Fees Total Hours Total Fees Worked Incurred · )3illed Charged

Lolita C. Gadberry $300 80.75 $24,225.00 80.75 $24,225.00 Paralegal

Louie S. Hopkins· $295 0.2 $59.00 0 $0 Paralegal

Deborah D. Hoxie $315 11 $3,465.00 11 $3,465.00 Paralegal

Brian W. Jensen $180.00 8.5 $1,530.00 0 $0 Paralegal

S. A. Leonard $290.00 30.5 $8,845.00 30.5 $8,845.00 Paralegal.

J. M. Mendith $165.00 J.7 $610.00 0 $0 Paralegal

S.A. Bock $295.00 4.8 $1,416.00 0 $0 Litigation Dataha5e Manager

'

D. J. Barber, $295.00 12.75 $3,761.25 12.75 $3,76L2S

1 {ractice Systems . LAnalyst : ~ :~-H. Jones $160.00 3.4 $544.00 0 $0

upport Staff

Total through 155.60 $42,455.00 135 $40,296.00 3/17/09

16 DECLARA TlON OF WAYNE BARSKY IN SUPPORT O:F PLAINTIFFSt MOTION

FOR ORDER A WARDING ATTORNEYS' FEES



I 1-

1 24: The following charts detail Gibson Dunn's total costs incurred for the litigation of

2 Plaintiffs' action through March 17, 2009.

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'L ~·~ " ~ . r. , . 0 •11

Court Fees 00

Document Retrieval Service $139.50 $139.50

Document Search and Retrieval $467.66 $467.66

Frei $18.66

InHouse $9 17 $0

Meals . $402.10

$896.56 $896.56

$11 93

19 $5 .19

On-Line Research Nexis-Main 71 $1 71

Outside $1 008.31 $1 31

Outside Process Server .84 060.84

Outside SerVices/Consultants $514.41 14.41

Reference Materials $25.00 $0

Fees $324.18 $324.18

$1 76.81 $0

$10.460.30 0.460.30

Travel- $16.00 16.00

Travel- Taxi I Miles 13.75 $13.75

Total 13.08 10.34





• • 1 Our practice'is to process these expenses contemporaneously and enter them into a computerized

2 accounting system maintained by Gibson Dunn1s accounting department, and I understand that this

3 practice was followed in connection with this case. I have reviewed the expenses with Mr. McRae,

4 Ms. Blanco, and Mr. Brown to satisfy myself of their accuracy, appropriateness, and fairness.

5 Expenses related to the fee demand served on the Agency and preparation of Plaintiffs• Motion have

6 not been included at this time. All of the listed expenses are of the type Gibson Dunn customarily

7 bills to its clients. Furthermore, all ofthe listed expenses were reasonably necessary to the

8 prosecution of Plaintiffs' claims. For ~xample, eopying of documents was necessary to create a

9 database of Agency documents that Gibson Dunn shared with co-col.msel via a secure FTP website

I 0 and to provide attorneys with sufficient time to review and analyze them, and online use of the Lexis

11 and Westlaw databases was necessary to conduct the background legal research supporting the

12 numerous motions, ex parte applications, discovery requests, and other court filings prepared by

13 Gibson Dunn's attorneys.

14 Prevailing Billing Rates ·

15 25. I am generally familiar with the hourly rates charged by general practice firms in Los

16 Angeles, and am specifically familiar with the hourly rates of :firms such as 0 1Melveny & Myers,

17 Latham & Watkins, and Irell & Manella, which both we and the legal community consider-to be

18 among our peer firms. In particular, I am generally familiar With the hourly rates charged by such

19 ftrms for attorneys of comparable skill, reputation and experience, and our hourly rates are consistent

20 with the rate structures of such firms. The hourly billing rates charged by Gibson Dunn's attorneys

21 on this case are also consistent with the rates-charged by other national and intemationiu law [Inns

22 with offices in Los Angeles for attorneys of comparable skill, reputation and experience, as shown by

23 an article entitled "A Nationwide Sampling of Law Firm Office Billing Rates," which app-eared ill the

24 ';becember 8, 2008, issue of The National Law Jour~!. This article, a true and correct copy of which .(1. ' ' .

25 ::is attached as Exhibit M, lists the 2008 billing rates for the following national and intemation<ll. firms n ·~ ~

26 ·with offices in Los Angeles:

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Gibson, Dunn & Crutcher LLP

Manatt Phelps & Phillips's rates ranged from $290 to $505 for associates and

from $490 to $850 for partners.





1 b. Reed Smith•s rates ranged from $235 to $580 for associates and from $375 to

2 $900 for partners.

3 c. Sheppard, Mullin. Richter & Hampton's rates ranged from $275 to $455 for

4 associates at_id from $475 to $795 for partners.

5 d. ·Hoga:h and Hartson's rates ranged from $150 to $550 for associates-and from

6 $375 to $900 for partners.

7 e. Hughes Hubbard & Reed's rates ranged from $270 to $600 for associates and

8 from $625 to $875 for partners.

9 f. Steptoe and Johnson's ranged from $210 to $685 fo,: associates and from $350

10 to $895 for partners.

11 g. White & Case ranged from $160 to $920 for associates and from $550 to

12 $1,260 for partners.

13 I declare under penalty of perjury under the laws· of the State of California that the foregoing

14 is true and correct.

15 April9, 2009

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DECLARATION OF WAYNE BARSKY IN SUPPORT OF PLAINTIFFS' MOTION

FORORDERAWARDINGATTORNEYS' FEES

EXHIBIT 3



1 ALAN RADER {SBN 45789) KAREN R. GROWDON (SBN 82240)

2 CYNTI:IIA A. MERRILL (SBN 254571) O'MELVENY. & MYERS LLP

3 400 South Hope. Street Los Angeles, California 90071-2899

· 4 Tel: (213) 430-6000 Fax: (213) 430-6000 [email protected] ·

5 [email protected] [email protected]

6

7 SHASHI HANUMAN (SBN 198522) PUBLIC COUNSEL . 610 South Ardmore A venue

8 Los Angeles> California 90005

9 Tel: (213) 385-2977 Fax: (213) 385-9089 [email protected]

10 MICHAEL F. RAWSON (SBN 95868)

11 CRAIG CASTELLANET (SBN 176054) · CALIFORNIA AFFORDABLE HOUSING

12 LAW PROJECT, PUBLIC INTEREST LAW PROJECT .

13 44915th Street, Suite 301 Oakland, California 94612

14 Tel: (510) 891-9794 Fax: (?10) 891-9727 [email protected] ·

15 [email protected]

16 Attorneys for PLAINTIFFS

.e WAYNE BARSKY (SBN 116731) MARCELLUS MCRAE (SBN 140308) CAROL A. FABRIZIO (SBN 258187) GillSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071-3197 Tel: (213) 229-7000 Fax: (213) 229-6604 [email protected] [email protected] [email protected]

REBECCA F. THORNTON (SBN 231.128) LAW OFFICE OF REBECCA F. TI:IORNTON 429 Santa Monica Boulevard, Suite 550 Santa Monica, California 90401 Tel: (310) 393-3055 Fax: (866) 499-5162 [email protected]

· FILE~ LOS ANGELES SUPERIOR COURT

AUG 14 2U09 ..

JOH~~·~~LARKE,CLERK

BY BE~~~:DEPUTY

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES - CENTRAL DISTRICT .

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ESPERANZA ROGEL, et al.>

Plaintiffs,

v.

REDEVELOPMENT AGENCY OF THE CITY 23 OF LYNWOOD,

2~: '.1 Defendant.

Case No. BS106592

·--llltORDER.AWARDING PLAINTIFFS ATTORNEYS' FEES

Judge: Hon. Kevin C. Brazile .Dept.: 20

Complaint Filed: December 21, 2006·

~i 21:!ll--~----~----'

26' 27

28 u-------------------------------~----------------------------

[PROPOSED] ORDER AWARDING PLAINTIFFS ATIORNEYS' FEES - 1 -



1 The Motion for Award of Attorneys' Fees of Plaintiffs Esperanza Rogel, Gerardo Espinoza,

2 Oscar Leon, Marcos Martinez, Jaime Torres, and California ACORN, Los Angeles Chapter

3 ("Plair!.tiffs") was heard on May 20, 2009, .at 8:30·a.m. in Department 20 of the above-entitled court.

4 Wayne Barsky, Craig Castdlanet, Carol Fabrizio, Shashi Hanuman, and Marcellus McRae appeared

5 as attorneys for Plaintiffs.. Bruce C. Gridley, Royce K. Jones and Scott C. Van Soye appeared as

6 attorneys for Defendant Redevelopment Agency of the City of Lynwood ("~efendant"). Having

1 reviewed the parties' submissions and heard oral argument from counsel for Plaintiffs and Defendant,

8 the Court requested additional briefing and scheduled a second hearing on the matter.

9 Plaintiffs' Motion for Award of Attorneys' Fees was heard again on July 10, 2009, at 9:00

10 a.m., in Dep~ent 20 of the above-entitled court. Craig Castellanet, Sbashi Hanuman, Marcellus

11 McRae, Cynthia A. Merfill, andRebecca F. Thornton appeared as attorneys for Plaintiffs. Bruce C.

12 Gridley, Royce K. Jones and Scott c.· V~ Soye appeared ~ attomeys. for Defendant. Having

13 reviewed ~e parties' subrrUssions and heard oral argm.n.ent from counsel for Plaintiffs and Defendant,

14 the Court took the matter under su,brnission.

15 As reflected in the Court's minute order dated July 14, 2009 (attached as. Exhibit A), the Court

16 GRANTED Pl!rintiffs' motion, awarding Plaintiffs attorneys' fees in the amount of $539,756.71 and

17 costs~ the amount of$59,989.59. The Court's minute order dated July 14, 2009, and the Tentative

18 Ruling referenced in the Court's July 14, 2009 minute order and attached as Exhibit B, are the Court's

19 decision in this matter.

20 Defendant is hereby ORDERED to pay a total of $539,756.71 in reasonable attorneys' fees

21 under Section 1021.5 of the Code of CivH Procedure .. . D_efendant is further ORDERED to pay

22 $59,989.59 in out-of-pocket expens~s and costs of suit pursuant to Sections 1032 and 1033.5 of the

2~l Code of Civil Procedure . . , ...

2J.; This Order a~~~.~•••···----------·--··· j ;. ·21 · is made without prejudice to the ability of Plaintiffs to apply at~ later time for attorneys' fees and

26 costs, il' •••••••••IIIJII••••••••••••••••••••• 27 n- -------------------------------------------------------------------28 [PROPOSED] ORDER AWARDING PLAINTIFFS ATTORNEYS' FEES

- 2- .

..



4 IT IS SO ORDERED.

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6 Dated: 1}()6(/ J.7 /LJ , 2009

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9 Approved as to .form:

10 Dated: 2009 ------/

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16 Respectfully submitted,

17 Dated: ~1/Jit f , 2009

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KANE, BALLMER AND BERKMAN

By: Bruce C. Gridley I Royce K. Jones

Attorneys for Defendant LYNWOOD· REDEVELOPMENTAGENCY ·

O'MELVENY & MYERS LLP . GIBSON DUNN & CRUTCHER LLP LAW OFFICES OF REBECCA F. THORNTON PUBLIC COUNSEL CALIFORNIA AFFORDABLE HOUSING LAW PROJECT

By: . ~c1;pt ·~Merrill~

Attorneys for Plaintiffs ESPERANZA ROGEL, GERARDO ESPINOZA, JAIME TORRES, MARCOS MARTINEZ, OSCAR LEON and CALIFORNIA ACORN, LOS ANGELES CHAPTER

28 [PROPOSED] ORDER AW ARDJNG PLAINTIFFS ATTORNEYS' FEES - 3 -

LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON ... · 5 6 7 8 9 10 11 12 13 14 15 16 17 18...

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