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______________________________________________________________________________________________________ Notice of Motion - 1 of 2 - 3:15-cv-03831-VC
Joshua B. Swigart, Esq. (SBN 225557) [email protected] David J. McGlothlin, Esq. (SBN 253265) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Abbas Kazerounian, Esq. (SBN 249203) [email protected] Ryan L. McBride, Esq. (SBN 297557) [email protected] Kazerouni Law Group 245 Fischer Ave., Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Class Counsel for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III; on behalf of himself and all others similarly situated,
Plaintiff, v.
Bank of America, N.A., Defendant.
Case No.: 3:15-cv-03831-VC CLASS ACTION Notice of Motion and Motion for Award of Attorneys’ Fees, Costs and Incentive Award Hearing: Date: January 11, 2018 Time: 10:00 am Dept.: Courtroom 4 (17th Floor) Judge: Hon. Vince Chhabria
Case 3:15-cv-03831-VC Document 58 Filed 10/12/17 Page 1 of 2
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HY
DE
& S
WIG
AR
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Phoe
nix,
Ari
zona
______________________________________________________________________________________________________ Notice of Motion - 2 of 2 - 3:15-cv-03831-VC
NOTICE IS HEREBY GIVEN that on January 11, 2018 at 10:00 AM, or as
soon thereafter as the matter may be heard of the above captioned court, located at
450 Golden Gate Avenue, Courtroom 4-17th Floor, San Francisco, CA 94102,
Plaintiffs Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William
E. Florence III, (“Plaintiffs”) move this Court for an award of attorneys’ fees, costs,
and incentive awards to the named class representatives.
This motion is based upon the accompanying Memorandum of Points and
Authorities, any exhibits attached thereto, all pleadings and papers on file in this
action and upon such other matters as the Court deems proper.
Date: October 12, 2017 Hyde & Swigart By:/s/ David J. McGlothlin David J. McGlothlin, Esq. Attorneys for Plaintiff
Case 3:15-cv-03831-VC Document 58 Filed 10/12/17 Page 2 of 2
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______________________________________________________________________________________________________ Memorandum of Points and Authorities 3:15-cv-03831-VC
Joshua B. Swigart, Esq. (SBN 225557) [email protected] David J. McGlothlin, Esq. (SBN 253265) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Abbas Kazerounian, Esq. (SBN 249203) [email protected] Ryan L. McBride, Esq. (SBN 297557) [email protected] Kazerouni Law Group 245 Fischer Ave., Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Class Counsel for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III; on behalf of himself and all others similarly situated,
Plaintiff, v.
Bank of America, N.A., Defendant.
Case No.: 3:15-cv-03831-VC CLASS ACTION Memorandum of Points and Authorities in Support of Class Counsel’s Motion for Award of Attorneys’ Fees, Costs, and Incentive Award Hearing: Date: January 11, 2018 Time: 10:00 am Dept.: Courtroom 4 (17th Floor) Judge: Hon. Vince Chhabria
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TABLE OF CONTENTS
I. Introduction ...................................................................................................... 1
II. Litigation and Factual Background ................................................................ 1
III. LEGAL STANDARD ................................................................................... 3 IV. Argument ...................................................................................................... 4
1. The requested fees resulted from an agreement reached through arm’s
length negotiations ............................................................................................. 4
2. The requested fees are reasonable, fair, and justified under the percentage-
of-the-fund method ............................................................................................ 6
a. Class Counsel have obtained excellent results for the Class in comparison to awards made in similar cases ................................................. 7
b. The risks of litigation support the requested fees .................................... 8
c. The skill required and quality of work performed support the requested
fees ................................................................................................................. 9
d. Class Counsels’ undertaking of this Action on a contingency-fee basis
supports the requested fees .......................................................................... 10 3. The requested fee is reasonable, fair, and justified under the lodestar
method ............................................................................................................. 12
4. The Number Of Hours Expended Are Reasonable ................................... 13
5. Class Counsel’s Hourly Rates are Reasonable. ......................................... 15
6. The Requested Litigation Costs Are Fair And Reasonable ....................... 16
7. The $5,000 Incentive Award Sought For The Named Class Representatives Are Reasonable And Should Be Approved. .......................... 17
V. Conclusion .................................................................................................... 19
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TABLE OF AUTHORITIES
CASES
Barel v. Bank of America, 255 F.R.D. 393, 402 (E.D. Pa. 2009) .......................... 8
Blum v. Stevenson, 465 U.S. 886, (1994) ............................................................. 15 Bryant v. TRW, Inc., 689 F.2d 72, 79 (5th Cir. 1982) ........................................... 3
Davis v. City and County of San Francisco, 976 F.3d 1536 (9th Cir. 1992) ........ 15
Dennis v. Kellogg Co., 2010 WL 4285011, at *4 (S.D. Cal. Oct. 14, 2010) ........ 5
Di Giacomo v. Plains All Am. Pipeline, 2001 U.S. Dist. LEXIS 25532 ............. 14
Duncan v. JPMorgan Chase Bank, N.A. W.D. Tex. Case No. 5:14-cv-00912-FB
........................................................................................................................... 8 Fischel v. Equit. Life Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002) ...... 13
Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005) .............. 14
Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 (N.D. Cal. Jan. 26, 2007)
......................................................................................................................... 12
Gross v. Washington Mutual Bank, F.A., 2006 WL 318814, at *6 (S.D.N.Y. Feb.
26, 2006) .......................................................................................................... 18 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998) .......................... 5
Hartless v. Clorox Co., 273 F.R.D. 630, 643-44 (S.D. Cal. 2011), aff’d in part,
473 F. Appx. 716 (9th Cir. 2012) .................................................................... 16
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). ................................................. 4
In re Activision Sec. Litig., 723 F. Supp. 1373, 1378 (N.D. Cal. 1998) ................ 6
In re Assicurazioni Generali S.p.a. Holocaust Insurance, 2007 WL 601846, at *3 (S.D.N.Y. Feb. 27, 2007) ............................................................................ 18
In re Beverly Hills Fire Litigation, 639 F. Supp. 915 ......................................... 14
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) ............ 3
In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166 (S.D. Cal. 2007) ........ 17
In re Linerboard, 2004 U.S. Dist. LEXIS 10532, 2004 WL 1221350 ................ 14
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In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362 (N.D. Cal. 1996) .......... 17
In re Mercury Interactive Corp., 618 F.3d 988 (9th Cir. 2010) .............................. 3
In re Omnivision Techs., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 2007) .............. 6
In re Rite Aid Corp. Securities Litigation, 396 F.3d 294, 307 (3d Cir. 2005) .... 12
In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d at 1299 ................ 10 Keener v Sears, 03-cv-1265 (C.D. Cal) ................................................................ 8
Hensley v. Eckerhart, 461 U.S. 424 (1983) ............................................................ 7
Kerr v, Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) ............................ 13
King v. United SA FCU, SA-09-CV-0937-NN ..................................................... 7
Lundell v. Dell, Inc., 2006 WL 3507938 (N.D. Cal. Dec. 5, 2006) ...................... 4
Milliron v. T-Mobile USA, Inc., 2009 WL 3345762, at *5 (D.N.J. Sept. 14, 2009) .................................................................................................................. 4
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) ........................................... 17
Nienaber v. Citibank, No. Civ. 04-4054 (S.D.) ..................................................... 8
Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San Francisco, 688
F.2d 615, 625 (9th Cir. 1982) ............................................................................ 4
Omnivision, 559 F. Supp. 2d at 1046-47 ................................................................ 8 People United for Children, Inc. v. City of New York, 2007 WL 582720, at *2
(S.D.N.Y. Feb. 26, 2007) ................................................................................. 19
Perry v. FleetBoston Corp., 229 F.R.D. 105, 110 (E.D. Pa. 2005) ....................... 8
Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011) ....................................... 12
Rodriguez v. West Publishing Corp., 563 F.3d 948 (9th Cir. 2009) ..................... 18
Rutti v. Lojack Corp., 2012 U.S. Dist. LEXIS 107677, 19 Wage & Hour Cas. 2d (BNA) 938, 2012 WL 3151077 (C.D. Cal. July 31, 2012) ............................. 16
Sandoval v. Tharaldson Emp. Mgmt., Inc., 2010 WL 2486346, at *6 (C.D. Cal.
June 15, 2010) .................................................................................................... 5
Serrano v. Unruh, 32 Cal. 3d 621(1982). ............................................................. 15
Shames v. Hertz Corp., 2012 U.S. Dist. LEXIS 158577, *60 (S.D. Cal. Nov. 5,
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2012) ................................................................................................................ 16
Sheppard v. Consolidated Edison Co. of NY, 2002 WL 2003206, at*6, n.9
(E.D.N.Y. Aug. 1, 2002) .................................................................................. 19
Spokeo Inc. v. Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016) ....................... 9
Steiner v. Am. Broad. Co., Inc., 248 F. App'x 780, 783 (9th Cir. 2007) ............. 14 Vizcaino v. Microsoft Corp., “courts have routinely enhanced the lodestar to
reflect the risk of non-payment in common fund cases.” 290 F.3d 1043, 1051
(9th Cir. 2002) ................................................................................................. 14
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047, 1048-1050 (9th Cir. 2002) ... 6
Vizcaino, 290 F.3d at 1048 ..................................................................................... 8
STATUTES
15 U.S.C. § 1681n ................................................................................................. 1
15 U.S.C. § 1681o(a)(2) ........................................................................................ 2
Fed. R. Civ. P. 23(h) .............................................................................................. 2
Fed. R. Civ. P. 30(b)(6) .......................................................................................... 9
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I. INTRODUCTION
Plaintiffs Robert A. Pastor, Regina Florence, William Florence, and Scott
Van Horn (collectively referred to as “Plaintiffs”) move the Court for an award
of attorneys’ fees, costs, and incentive payments as part of this preliminary
approved class action settlement (see Dkt. No. 55)
The Settlement (see Dkt. No. 46-5) creates a common fund in the amount of
$1,645,000.00. [Settlement Agreement, ¶ 32]. Each Class member to make a
claim will receive a pro-rata share of the common fund. [Settlement Agreement,
¶ 69]. Pursuant to the terms of the Settlement Agreement, Class Counsel shall
move the Court for an award of attorneys’ fees (“Motion for Fees”) and costs
not to exceed 30% of the amount actually contributed to the common fund.
[Settlement Agreement, ¶ 53]. Any award of fees and costs approved by the
Court shall be paid from the common fund three days after the Effective Date.
Court approval of Class Counsel’s attorney’s fees and costs is not a condition of
the settlement. [Id.]. Additionally, Plaintiffs seek an incentive award of $5,000
for each named class representative as compensation for their investment of
time, effort, and resources on behalf of the Class.
Plaintiffs now seek an order awarding class counsel $411,250 in attorneys’
fees, which represents 25% of the common fund. Plaintiff further requests
$19,023.42 in expenses. This requested fee amount is fair and reasonable when
compared to the settlement value as well as the lodestar incurred by Class
Counsel.
II. LITIGATION AND FACTUAL BACKGROUND
Plaintiff Pastor filed the initial class action complaint on August 21, 2015
asserting violations of the Fair Credit Reporting Act (“FCRA”) 15 U.S.C. §
1681n [See Dkt. No. 1]. Plaintiffs assert that they are former customers of Bank
of America, N.A. (“BANA”), who was included as a creditor in each Plaintiffs’
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bankruptcy in the U.S. Bankruptcy Court, District of Nevada. [Plaintiff’s First
Amended Complaint, Dkt. No. 48 (“FAC”), ¶¶ 23-24, 40-41, & 52-53. Each
Plaintiff learned by reviewing their credit report that BANA had still conducted
soft pulls of their credit file after the bankruptcy discharge date for the alleged
purpose of conducting account reviews. FAC ¶¶ 29, 46 & 59. Plaintiffs allege
that they did not conduct any business nor incur any additional financial
obligations with BANA since the date of the discharge of their bankruptcies.
FAC ¶¶ 31& 58. In the First Amended Complaint, Plaintiffs alleged that BANA
did not have a permissible purpose to pull their credit file information from their
credit reports because they did not give their consent and their debt had been
discharged in Bankruptcy on the dates that BANA accessed their credit files.
FAC ¶¶ 31, 46 & 59.
BANA vigorously denies all claims asserted in the Action and denies all
allegations of wrongdoing and liability. BANA further maintains that even if
the credit pull was impermissible under the FCRA, it was not the result of
willful conduct, and so neither Plaintiffs nor the class members were entitled to
statutory damages.
After completion of some initial discovery, and once the parties were full
apprised of the strengths and weaknesses of their respective cases, on July 26,
2016 the parties participated in a mediation conducted by Honorable Edward A.
Infante (Ret.) that culminated with the filing of the Motion for Preliminary
Approval. This Court approved the Motion for Preliminary Approval on July 7,
2017. The Agreement, as preliminarily approved by the Court, recognizes the
benefit conferred upon the class by Plaintiffs and Class Counsel, and
acknowledges Plaintiffs right to seek recovery for their reasonable attorneys’
fees and expenses. In this regard, the Agreement provides that Plaintiffs may
petition the Court for an award of attorneys’ fees up to 30% of the common fund
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plus reasonable expenses. This requested fee amount is fair and reasonable
when compared to the settlement value as well as the lodestar incurred by Class
Counsel. III. LEGAL STANDARD
Federal Rules of Civil Procedure provide that “[i]n a certified class action, the court may award reasonable attorneys’ fees and nontaxable costs that are
authorized by law or by the parties agreement.” Fed. R. Civ. P. 23(h). Pursuant
to the terms of the Settlement Agreement in this case, Class Counsel shall move
the Court for an award of attorneys’ fees and costs not to exceed 30% of the
amount actually contributed to the common fund. [Settlement Agreement, ¶ 53].
Additionally, Plaintiffs are entitled to attorneys’ fees pursuant to the FCRA. The FCRA provides that in “the case of any successful action to enforce
any liability under this section,” the consumer shall recover “the costs of the
action together with reasonable attorney's fees as determined by the court.” 15
U.S.C. § 1681o(a)(2). The purpose of awarding attorney fees under the FCRA is
to encourage enforcement of the statute by consumers, acting as “private
attorneys general.” See, Bryant v. TRW, Inc., 689 F.2d 72, 79 (5th Cir. 1982) In common fund cases such as this one, courts within the Ninth Circuit
have discretion to use one of two methods to determine whether the fee request is
reasonable: (1) percentage-of-the-fund; or, (2) lodestar plus a risk multiplier.
Staton, 327 F.3d at 967-68; see also In re Mercury Interactive Corp., 618 F.3d
988, 992 (9th Cir. 2010). “Though courts have discretion to choose which
calculation method they use, their discretion must be exercised so as to achieve a reasonable result.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942
(9th Cir. 2011).
Class Counsel maintain the request for attorneys’ fees is reasonable based
solely upon the extensive arm’s length formal negotiations that serve as
independent confirmation of the fairness of the settlement, including attorneys’
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fees. See Hanlon, 150 F.3d at 1029. The requested fees are also fully supported
under the percentage-of-the-fund and lodestar approach, which Class Counsel
offer as an additional and optional means of cross-checking the requested fees.
IV. ARGUMENT
“Once a party has established that he is entitled to attorneys’ fees, ‘[i]t
remains for the [] court to determine what fee is ‘reasonable.’” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). Here, as established below and in the
attached Declarations of Counsel, payment of the requested attorneys fees is
reasonable under the both the percentage-of-the-fund and lodestar approach.
1. THE REQUESTED FEES RESULTED FROM AN AGREEMENT
REACHED THROUGH ARM’S LENGTH NEGOTIATIONS
While attorneys’ fee provisions included in class action settlements are
subject to the determination of whether the provision is fundamentally fair, adequate and reasonable, the Ninth Circuit has opined that “the court's intrusion
upon what is otherwise a private consensual agreement negotiated between the
parties to a lawsuit must be limited to the extent necessary to reach a reasoned
judgment that the agreement is not the product of fraud or overreaching by, or
collusion between, the negotiating parties, and that the settlement, taken as a
whole, is fair, reasonable and adequate to all concerned.” Hanlon, 150 F.3d at 1027; citing Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San
Francisco, 688 F.2d 615, 625 (9th Cir. 1982); (emphasis added); see also,
Lundell v. Dell, Inc., 2006 WL 3507938 (N.D. Cal. Dec. 5, 2006).
In Hanlon, the Ninth Circuit went on to state that where settlement terms,
including attorneys’ fees, are reached through formal mediation, the Court may
rely upon the mediation proceedings “as independent confirmation that the fee was not the result of collusion or a sacrifice of the interests of the class.”
Hanlon, 150 F.3d at 1029. See also Milliron v. T-Mobile USA, Inc., 2009 WL
3345762, at *5 (D.N.J. Sept. 14, 2009) (“the participation of an independent
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mediator in settlement negotiation virtually insures that the negotiations were
conducted at arm’s length and without collusion between the parties”); Sandoval
v. Tharaldson Emp. Mgmt., Inc., 2010 WL 2486346, at *6 (C.D. Cal. June 15,
2010) (“the assistance of an experienced mediator in the settlement process
confirms that the settlement is non-collusive”); Dennis v. Kellogg Co., 2010 WL 4285011, at *4 (S.D. Cal. Oct. 14, 2010) (the parties engaged in a “full-day
mediation session,” which helped to establish that the proposed settlement was
noncollusive). See also 2 McLaughlin on Class Actions, § 6:7 (8th ed.) (“A
settlement reached after a supervised mediation receives a presumption of
reasonableness and the absence of collusion”).
Here, and as previously stated in Plaintiffs’ Motion For Preliminary Approval of Class Action Settlement and Certification of Settlement Class (Dkt.
46, the “Preliminary Approval Motion”), which this Court granted on July 7,
2017 (Dkt. No. 55), the settlement resulted from extensive arm’s length
negotiations. Specifically, the Parties attended mediation facilitated by the
Honorable Edward Infante (Ret.). As a result of the mediation sessions, and
with the experienced guidance of Judge Infante, the Parties agreed to settle this Action, subject to further negotiations and Court approval.
Under these circumstances, the Court may give deference to the mediation
proceedings and the judgment of the Parties regarding the reasonableness of
fees. The arm’s length negotiations, especially those before Judge Infante (Ret.),
serve as “independent confirmation” of the reasonableness of the settlement’s
terms on which Plaintiffs based the request for attorneys’ fees, costs, and
incentive award sought by this Motion. See Hanlon v. Chrysler Corp., 150 F.3d
1011, 1029 (9th Cir. 1998). Additionally, the requested fee is wholly supported
by the percentage-of-the-fund and lodestar methods, which the Court may
employ as a means of assessing the reasonableness of the requested fee.
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2. THE REQUESTED FEES ARE REASONABLE, FAIR, AND JUSTIFIED
UNDER THE PERCENTAGE-OF-THE-FUND METHOD
Courts consider a number of factors to determine the appropriate
percentage of the fund to awarding as attorneys’ fees in a common fund case
including: (a) the results achieved; (b) the risk of litigation; (c) the skill required and the quality of work; (d) the contingent nature of the fee; and, (e) awards made
in similar cases. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047, 1048-1050
(9th Cir. 2002).
The “benchmark” percentage for attorney’s fees in the Ninth Circuit is 25%
of the common fund with costs and expenses awarded in addition to this amount.
Vizcaino, 290 F.3d at 1047. “However, in most common fund cases, the award exceeds that [25%] benchmark.”1 In re Omnivision Techs., 559 F. Supp. 2d
1036, 1047 (N.D. Cal. 2007) (citing In re Activision Sec. Litig., 723 F. Supp.
1373, 1378 (N.D. Cal. 1998)). See also Barbosa v. Cargill Meat Solutions
Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013) (“[t]he typical range of acceptable
attorneys’ fees in the Ninth Circuit is 20 percent to 33.3 percent of the total
settlement value”). “[A]bsent extraordinary circumstances that suggest reasons to lower or increase the percentage, the rate should be set at 30%.” Omnivision,
559 F. Supp. 2d at 1048, citing In re Activision Sec. Litig., 723 F.Supp. at 1378.
Attorneys’ fees are often paid from the common fund, thereby reducing
class members’ recovery, as is this case here. Class Counsel’s request for
attorneys’ fees in the amount of $411,250 equates to 25% of the $1,645,000
Settlement Fund, which is reasonable considering the Ninth Circuit’s benchmark and more recent precedent, as well as the risks and results obtained in this
Settlement. This fee request is unopposed by Bank of America. Also, the
1 In “cases under $10 Million, the awards more frequently will exceed the
25% benchmark.” Morales v. Stevco, Inc., 2013 U.S. Dist. LEXIS 41799, *11 (E.D. Cal. Mar. 22, 2013) (citing Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, *36 (E.D. Cal. Sep. 1, 2011)).
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Settlement Class Members were adequately apprised that Class Counsel would be
seeking up to 30% of the Settlement Fund in attorneys’ fees in the class notice.
In addition, the fee request is fully supported by the factors enunciated in
Vizcaino including: (a) the results achieved; (b) the risk of litigation; (c) the skill
required and the quality of work; (d) the contingent nature of the fee; and, (e) awards made in similar cases.
a. CLASS COUNSEL HAVE OBTAINED EXCELLENT RESULTS
FOR THE CLASS IN COMPARISON TO AWARDS MADE IN
SIMILAR CASES
The results obtained for the class are generally considered to be the most
important factor in determining the appropriate fee award in a common fund case.
See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); Omnivision, 559 F. Supp. 2d
at 1046; see also Federal Judicial Center, Manual for Complex Litigation, §
27.71, p. 336 (4th Ed. 2004) (the “fundamental focus is on the result actually achieved for class members”) (citing Fed. R. Civ. P. 23(h) committee note).
Standing alone, this factor supports Class Counsel’s fee request.
The Settlement secured by Plaintiffs and Class Counsel provides a
superior recovery for Settlement Class Members as compared to similar FCRA
cases, despite the uncertainty of recovery in FCRA impermissible pull class
actions. The Agreement provides for $1,645,000 in recovery for the approximately 580,000 Settlement Class Members. After deducting attorneys’
fees and costs, a service awards to Plaintiff, and costs of notice and claims
administration, every Class Member who makes a timely and valid claim will be
entitled to a pro rata distribution of the Settlement Fund.
Significantly, the Class Members’ anticipated recovery here is greater than the
results obtained in other FCRA class action settlements. Only two other FCRA
impermissible access account review settlements have been reached in the United
States wherein a common fund was created. The first was a smaller case. See King v.
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United SA FCU, SA-09-CV-0937-NN (W.D. Tex. Final Settlement Approved Oct. 8,
2010, Dkt # 31). The second was the Duncan v. JP Morgan Chase Bank, N.A. case
where the court agreed to an $8.75 million settlement amounting to about $1.00 per
class member. Duncan v. JPMorgan Chase Bank, N.A. W.D. Tex. Case No. 5:14-cv-
00912-FB. In this case, the cash payment available to class members in this settlement
is significantly greater per person than the Duncan case and is approximately $3.05 per
class member.
All other known class action account review cases that have settled have
provided non-cash relief, including short term credit monitoring, credit scores, or other
“coupon-type” relief. See, e.g., Barel v. Bank of America, 255 F.R.D. 393, 402 (E.D.
Pa. 2009) (credit report monitoring); Nienaber v. Citibank, No. Civ. 04-4054 (S.D.)
(credit report monitoring); Perry v. FleetBoston Corp., 229 F.R.D. 105, 110 (E.D. Pa.
2005) (two credit reports and scores); Keener v Sears, 03-cv-1265 (C.D. Cal) (Coupon
for Sears store products).
b. THE RISKS OF LITIGATION SUPPORT THE REQUESTED
FEES
“The risk that further litigation might result in Plaintiffs not recovering at
all, particularly a case involving complicated legal issues, is a significant factor in
the award of fees.” Omnivision, 559 F. Supp. 2d at 1046-47; see also Vizcaino, 290 F.3d at 1048 (risk of dismissal or loss on class certification is relevant to
evaluation of a requested fee).
In litigating this matter, Plaintiffs have identified significant burdens that
each Class Member would bear in the event that Plaintiffs and BANA’s
settlement is not approved. These challenges include the difficulties in
determining whether BANA’s actions in obtaining the credit report were negligent and/or willful and what actual damages, if any, were sustained by class
members. These significant risks make the global class settlement obtained by
Plaintiffs all the more beneficial to the Class Members while also providing
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finality for BANA.
It is possible that the issue of whether BANA acted negligently or
willfully will have to be determined on a case-by-case basis. As discussed
above, each class member will have to prove whether BANA acted negligently
or willfully when BANA accessed that class member’s credit report. Each class
member would have to prove what level of involvement BANA had in the class
member’s bankruptcy and what level of knowledge BANA had that the account
in question had been discharged through bankruptcy. This would be extremely
time-consuming for the class member, BANA, and especially for the court
system.
Additionally, all previous settlements reached on FCRA impermissible
access account review were prior to the Supreme Court’s ruling in Spokeo Inc. v.
Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). Therefore, if this case were
to proceed, Plaintiffs would have to prevail over Defendant’s challenges
regarding standing. Consequently, the risks of continued litigation not only
depicts the high degree of results obtained for the Class, but also further support
the reasonableness of the requested fees.
c. THE SKILL REQUIRED AND QUALITY OF WORK
PERFORMED SUPPORT THE REQUESTED FEES
The “prosecution and management of a complex [] class action requires
unique legal skills and abilities” that are to be considered when evaluating fees.
Omnivision, 559 F. Supp. 2d at 1047. Class Counsel are experienced class action
litigators who have been appointed “class counsel” in numerous consumer class actions. Class Counsel have successfully prosecuted numerous complex consumer
class actions, and have secured noteworthy recoveries for those classes. See
Declaration of Joshua B. Swigart (“Swigart Decl.”), ¶¶ 13-19; Kazerounian
Decl. ¶¶ 13-21; see also Declaration of David J. McGlothlin (“McGlothlin
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Decl.”), ¶¶ 13-19. Class Counsel’s proven track record demonstrates not only the
quality of work performed, but also the skill required to successfully prosecute
large complex class actions.
In the present case, Class Counsel performed significant factual
investigation prior to bringing the action, conducted extensive written discovery, and took a Fed. R. Civ. P. 30(b)(6) confirmatory deposition. Class Counsel
participated in protracted negotiations including a mediation before Judge Infante
(Ret.), which ultimately secured a nationwide settlement for the benefit of the
Class. Kazerounian Decl., ¶ 5.
FCRA class action litigation is often complex. In addition to keeping
themselves apprised of pertinent case law and agency rulings, Mr. Kazerounian and Mr. Swigart have lectured on consumer law issues on several occasions. See
Kazerounian Decl., ¶¶ 22-38; Swigart Decl., ¶ 20. Thus, Class Counsels’ skill and
expertise reflected in the relatively prompt and significant Settlement, supports
the requested fees.
d. CLASS COUNSELS’ UNDERTAKING OF THIS ACTION ON A
CONTINGENCY-FEE BASIS SUPPORTS THE REQUESTED
FEES
The Ninth Circuit has long recognized that the public interest is served by
rewarding attorneys who undertake representation on a contingent basis by compensating them for the risk that they might never be paid for their work. In re
Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d at 1299 (“Contingent fees
that may far exceed the market value of the services if rendered on a non-
contingent basis are accepted in the legal profession as a legitimate way of
assuring competent representation for Plaintiffs who could not afford to pay on an
hourly basis regardless of whether they win or lose”); Vizcaino, 290 F.3d at 1051 (courts reward successful class counsel in contingency cases “for taking risk of
nonpayment by paying them a premium over their normal hourly rates”).
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Class Counsel prosecuted this matter on a purely contingent basis while
agreeing to advance all necessary expenses knowing that Class Counsel would
only receive a fee if there were a recovery. See Kazerounian Decl., ¶ 4; Swigart
Decl., ¶ 4; McGlothlin Decl., ¶ 4. In pursuit of this litigation, Class Counsel have
spent considerable outlays of time and money by, among other things, (1) investigating the action; (2) coordinating and consolidating other putative class
actions into this single action; (3) conducting extensive discovery; (4) negotiating
the settlement; (5) overseeing administration of the Settlement; and (6)
responding to Class Member inquiries. Class Counsel expended these resources
despite the risk that Class Counsel may never be compensated.
Plaintiff’s counsel here have incurred $19,023.42 in costs and spent 520.4 hours litigating this action. Kazerounian Decl., ¶¶ 7-9; Swigart Decl¶¶ 7-9;
McGlothlin Decl., ¶¶ 7-9; McBride Decl., ¶¶ 7-9. Thus, Plaintiff’s counsels’
“substantial outlay, when there is a risk that none of it will be recovered, further
supports the award of the requested fees” in this matter. Omnivision, 559 F.
Supp. 2d at 1047.
As articulated above, the percentage-of-the-fund method is the preferred and most widely used method for determining attorneys’ fees in a common fund
case. The requested fees are fully supported by the factors enunciated by Vizcaino
and is commensurate with the excellent results obtained for the Class and is
comparable or in excess of awards in other FCRA cases, namely Duncan v.
JPMorgan Chase Bank, N.A..
While the requested fees are fully supported by the percentage-of-the-fund
method, it should again be noted that the application of the percentage-of-the-fund
method is optional and may be applied at the Court’s discretion. In addition, the
Court may also apply the lodestar method as another optional means of cross-
checking the requested fees.
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3. THE REQUESTED FEE IS REASONABLE, FAIR, AND JUSTIFIED
UNDER THE LODESTAR METHOD
A court applying the percentage-of-the-fund method may use the lodestar
method as a “cross-check on the reasonableness of a percentage figure.”
Vizcaino, 290 F.3d at 1050. A cross-check, however, is optional. See Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476, at *48 (N.D. Cal. Jan. 26, 2007)
(finding that “where the early settlement resulted in a significant benefit to the
class,” there is no need “to conduct a lodestar cross-check”). If the Court chooses
to perform such a cross-check in this matter, it will confirm that an approximately
25% of $1,645,000 common fund, or $411,250 in attorneys fees, is reasonable.
Primary reliance should be placed on the percentage-of-the-fund method in common fund cases such as this one. See In re Rite Aid Corp. Securities
Litigation, 396 F.3d 294, 307 (3d Cir. 2005)) (“the lodestar cross-check does not
trump the primary reliance on the percentage of common fund method”).2
The first step in the lodestar-multiplier approach is to multiply the number
of hours counsel reasonably expended by a reasonable hourly rate. Hanlon, 150
2 See Silber and Goodrich, Common Funds and Common Problems: Fee Objections and Class Counsel's Response, 17 RevLitig 525, 534 (1998) (the percentage approach avoids numerous drawbacks of the lodestar approach and is preferable because “the attorneys will receive the best fee when the attorneys obtain the best recovery for the class. Hence, under the percentage approach, the class members and the class counsel have the same interest — maximizing the recovery of the class.”). See also In Re Activision Securities Litigation, 723 F. Supp. 1373, 1378-1379 (N.D. Cal. 1989) (holding that the percentage method is preferred over the lodestar method and finding it encourages efficiencies and early resolution); In re Omnivision Techs, Inc., 559 F. Supp. 2d 1036, 1046 (N.D. Cal. 2008) (“[U]se of the percentage method in common fund cases appears to be dominant.”); Jones v. GN Netcom, Inc. (In re Bluetooth Headset Prods. Liab. Litig.), 654 F.3d 935, 942 (9th Cir. 2011) (“Because the benefit to the class is easily quantified in common-fund settlements, we have allowed courts to award attorneys a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar.”).
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F.3d at 1029. Once this raw lodestar figure is determined, the Court may then
adjust that figure based upon its consideration of many of the same
“enhancement” factors considered in the percentage-of-the-fund analysis, such as:
(1) the results obtained; (2) whether fee is fixed or contingent; (3) the complexity
of the issues involved; (4) the preclusion of the other employment due to acceptance of the case; and, (5) the experience, reputation, and ability of the
attorneys. See Kerr v, Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).3
4. THE NUMBER OF HOURS EXPENDED ARE REASONABLE
The accompanying declarations of Class Counsel and senior associate
attorney set forth the hours of work and billing rates used to calculate their
lodestar. Plaintiffs’ attorneys’ hours are summarized below:
PERSON: RATE: HOURS: TOTAL:
ABBAS
KAZEROUNIAN
$605 141.1 $85,365.50
JOSHUA SWIGART $605 87.4 $52,877.00
DAVID
MCGLOTHLIN
$450 231.9 $104,355.00
RYAN MCBRIDE $300 60 $18,000.00
TOTAL: 520.4 $260,597.50
As described in the accompanying declarations, Plaintiffs’ attorneys have
devoted a total of 520.4 hours4 to this litigation thus far, and have a total lodestar
3 The risk inherent in contingency representation is a critical factor. The
Ninth Circuit stresses that “[i]t is an abuse of discretion to fail to apply a risk multiplier when...there is evidence that the case was risky.” Fischel v. Equit. Life Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002); see also Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, at *16 (N.D. Cal. 2007). 4 Plaintiff’s counsel provide in their respective declarations a summary of major
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$260,597.50, which represents a reasonable multiplier of approximately 1.578.
See Kazerounian Decl., ¶¶ 7 and 8; Swigart Decl., ¶¶ 7 and 8; McGlothlin Decl.
¶¶ 7 and 8; McBride Decl. ¶¶ 7 and 8.
A multiplier of between 4 and 5 in complex cases is not uncommon. See
In re Linerboard, 2004 U.S. Dist. LEXIS 10532, 2004 WL 1221350, at *16
(noting that “during 2001-2003, the average multiplier approved in common
fund class actions was 4.35”) (citation omitted); In re Beverly Hills Fire
Litigation, 639 F. Supp. 915 (E.D. Ky. 1986) (awarding multiplier of 5 for lead
counsel); Di Giacomo v. Plains All Am. Pipeline, 2001 U.S. Dist. LEXIS 25532
(S.D. Tex. Dec. 18, 2001) (approving 5.3 multiplier); Steiner v. Am. Broad. Co.,
Inc., 248 F. App'x 780, 783 (9th Cir. 2007) (approving multiplier of 6.85). As
the Ninth Circuit noted in Vizcaino v. Microsoft Corp., “courts have routinely
enhanced the lodestar to reflect the risk of non-payment in common fund cases.”
290 F.3d 1043, 1051 (9th Cir. 2002). In Viczaino, the court analyzed a table of
multipliers that had been used in other cases and approved a multiplier of 3.65
for that case. Id.
The 520.4 attorney hours include additional time that Class Counsel will
likely spend going forward in seeking final approval of, and implementing the
Settlement, including assisting Class Members with claims and overseeing claims
administration, and preparing and filing the motion for final approval of class
action settlement. See Kazerounian Decl., ¶ 8 (30 additional hours estimated);
tasks performed and time expended. See Sablan v. Department of Finance of Com. of Northern Mariana Islands, 856 F.2d 1317 (9th Cir. 1988) (attorney-fee award need not be preceded by an evidentiary hearing when the record and supporting affidavits are sufficiently detailed to provide an adequate basis for calculating the award and the material facts necessary to calculate the award are not genuinely in dispute). Detailed billings are available upon request by the Court.
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Swigart Decl., ¶ 8 (10 additional hours estimated); McGlothlin Decl. ¶ 8 (30
additional hours estimated); McBride Decl. ¶ 8 (10 additional hours estimated).
Class Counsel’s lodestar with a 1.578 multiplier is therefore reasonable.
Class Counsel prosecuted the claims at issue efficiently and effectively, making
every effort to prevent the duplication of work that might have resulted from
having multiple firms working on this case. In this regard, tasks were reasonably
divided among firms to ensure avoiding the replication of work. Further, tasks
were delegated appropriately among partners, associate attorneys, paralegals, and
other staff. Class Counsel did not include hours incurred by paralegals and other
support staff in their fees request. See Kazerounian Decl., ¶ 10 Swigart Decl., ¶
10; McGlothlin Decl., ¶ 10; McBride Decl., ¶ 10.
5. CLASS COUNSEL’S HOURLY RATES ARE REASONABLE.
Similarly, Class Counsels’ hourly rates are reasonable. In assessing
the reasonableness of an attorney’s hourly rate, courts consider whether the
claimed rate is “in line with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience and reputation.” Blum v.
Stevenson, 465 U.S. 886, 895, n.11 (1994). See also Davis v. City and County of
San Francisco, 976 F.3d 1536, 1546 (9th Cir. 1992); and, Serrano v. Unruh, 32 Cal. 3d 621, 643 (1982). Class Counsel here are experienced, highly regarded
members of the bar with extensive expertise in the area of class actions and
complex litigation involving consumer claims like those at issue here. See
Kazerounian Decl., ¶¶ 13-39; Swigart Decl., ¶¶ 13-21; McGlothlin Decl., ¶¶ 13-
26.
Mr. Kazerounian is an adjunct professor at California Western School of Law teaching a consumer law course. Both Mr. Kazerounian and Mr. Swigart
have been approved for an hourly rate of $605. Kazerounian Decl., ¶ 15; Swigart
Decl., ¶ 15. Mr. McGlothlin, a partner at Hyde & Swigart, is also very
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experienced in litigating consumer cases, including class actions, and seeks an
hourly rate of $450. McGlothlin Decl., ¶¶ 13-26.
The billing rate for the partners (i.e., Mr. Kazerounian, Mr. Swigart and
Mr. McGlothlin) is well within the normal range of fees charged by firms in
Southern California for partner work. See Hartless v. Clorox Co., 273 F.R.D. 630, 643-44 (S.D. Cal. 2011), aff’d in part, 473 F. Appx. 716 (9th Cir. 2012)
(approving hourly rates in the San Diego area of $675-795 for partners, up to
$410 for associates, and up to $345 for paralegals); see also POM Wonderful,
LLC v. Purely Juice, Inc., 2008 WL 4351842 at *4 (C.D. Cal) (finding partner
rates of $750 to $475 and associate rates of $425 to $275 reasonable).
Additionally, associate Ryan McBride of Kazerouni Law Group, APC, who has contributed much to this litigation, has significant experience in
litigating consumer actions, which justifies his hourly rate of $300. See McBride
Decl., ¶¶ 13-19. According to the Court in Shames v. Hertz Corp., 2012 U.S.
Dist. LEXIS 158577, *60 (S.D. Cal. Nov. 5, 2012) (“[t]he National Law Journal
data reveals that rates at six national defense firms with San Diego offices
averaged between $550 and $747 per hour for partners and $346 and $508 per hour for associates.”); Rutti v. Lojack Corp., 2012 U.S. Dist. LEXIS 107677, 19
Wage & Hour Cas. 2d (BNA) 938, 2012 WL 3151077 (C.D. Cal. July 31, 2012)
(approving hourly rates of $650 and $750 in FLRA class action).
Therefore, Class Counsels’ hourly rates and combined lodestar of
$260,597.50 with a multiplier of 1.578 is a reasonable. 6. THE REQUESTED LITIGATION COSTS ARE FAIR AND
REASONABLE
“Reasonable costs and expenses incurred by an attorney who creates or
preserves a common fund are reimbursed proportionately by those class members
who benefit from the settlement.” In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996) (citing Mills v. Electric Auto-Lite Co., 396
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U.S. 375, 391-392 (1970). The significant litigation expenses Class Counsel
incurred in this case were necessary to secure the resolution of this litigation. See
In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1177-78 (S.D. Cal.
2007) (finding that costs such as filing fees, photocopy costs, travel expenses,
postage, telephone and fax costs, computerized legal research fees, and mediation expenses are relevant and necessary expenses in class action litigation). Based
upon the discussion herein, Class Counsel believe that the costs incurred in this
matter are fair and reasonable.
Throughout the course of this litigation, Class Counsel had to incur costs
totaling $19,023.42 Kazerounian Decl. ¶ 9; Swigart Decl., ¶ 9. These costs were
necessary to secure the resolution of this litigation and Class Counsel put forward said costs without assurance that Class Counsel would ever be repaid. Most of
the costs were incurred for travel to court hearings, the mediation and
depositions.5
In light of the expenses Class Counsel were required to incur to bring this
case to its current settlement posture, the request for (current) costs of $19.023.42
is reasonable. Class Counsel will likely incur additional costs as this case moves to the final approval stage.
7. THE $5,000 INCENTIVE AWARD SOUGHT FOR THE NAMED
CLASS REPRESENTATIVES ARE REASONABLE AND SHOULD BE
APPROVED.
As the Ninth Circuit has recognized, “named Plaintiffs, as opposed to
designated class members who are not named Plaintiffs, are eligible for
reasonable incentive payments.” Staton, 327 F.3d at 977; Rodriguez v. West
Publishing Corp., 563 F.3d 948, 958 (9th Cir. 2009) (service awards “are fairly
typical in class action cases”). Such awards are intended to compensate class
5 Counsel are willing to provide itemized costs records upon the Court’s
request.
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representatives for work done on behalf of the class [and] make up for financial or
reputational risk undertaken in bringing the action.” Id. Small incentive awards,
such as those requested here, promote the public policy of encouraging
individuals to undertake the responsibility of representative lawsuits.
As stated, the Agreement calls for a payment of $5,000.00 to each of the
named class representatives as an incentive award for their expenditure of time,
effort, and resources in undertaking this action on behalf of the class.
On August 21, 2015 (Dkt No. 1), Plaintiff Robert Pastor filed the initial
complaint against Defendant Bank of America in this matter. Plaintiffs Scott
Van Horn, Regina Florence and William Florence III filed separate putative
class claims against Defendant in the U.S. District Court, District of Nevada
(case nos. 2:16-cv-00362 & 2:16-cv-00365, respectively.) The parties then
entered into a class settlement encompassing all three putative class actions The
parties then consolidated all claims into this case by filing this First Amended
Complaint naming all four individuals as plaintiffs and class representatives
(See Dkt. No. 44).
“Incentive awards are not uncommon in class action cases and are within
the discretion of the court.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187
(W.D.N.Y. 2005) (internal quotations omitted). “A powerful basis for separate
awards to named plaintiff in class action settlements is the need to reimburse
them for specific expenses they have incurred, including out-of-pocket costs of
asserting the litigation, the use of leave time in order to attend depositions and
other such costs.” Sheppard v. Consolidated Edison Co. of NY, 2002 WL
2003206, at*6, n.9 (E.D.N.Y. Aug. 1, 2002). Here, this entire litigation would
not have been possible without Pastor’s and the other named plaintiffs’
involvement and cooperation with Class Counsel.
The $5,000 incentive award amount is more than reasonable and in line
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with similar incentive awards routinely granted by courts in class action cases.
See, e.g., People United for Children, Inc. v. City of New York, 2007 WL
582720, at *2 (S.D.N.Y. Feb. 26, 2007) (approving class action settlement that
called for incentive awards to class action plaintiffs ranging from $10,000 to
$15,000); In re Assicurazioni Generali S.p.a. Holocaust Insurance, 2007 WL
601846, at *3 (S.D.N.Y. Feb. 27, 2007) (awarding each of the named
representatives incentive award of $5,000 as part of class action settlement
approval); Gross v. Washington Mutual Bank, F.A., 2006 WL 318814, at *6
(S.D.N.Y. Feb. 26, 2006) (awarding class plaintiff $5,000 incentive award as
part of class action settlement approval).
The $5,000 incentive award, being unopposed, fair and reasonable, and in
line with payments awarded in other class actions, should also be approved.
V. CONCLUSION
For the foregoing reasons, Class Counsel respectfully request that the
Court grant Plaintiffs’ motion for an award of attorneys’ fees in the total amount
of $411,250 (25% of the Settlement Fund), litigation costs of $19,023.42, and an
incentive or service award in the amount of $5,000 to each of the four Class
Representatives. Date: October 12, 2017 Hyde & Swigart By: /s/ David J. McGlothlin David J. McGlothlin Class Counsel
Case 3:15-cv-03831-VC Document 58-1 Filed 10/12/17 Page 24 of 24
DECLARATION OF ABBAS KAZEROUNIAN 15-cv-0381-VC 1
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David J. McGlothlin, Esq. (SBN: 253265) [email protected] Joshua B. Swigart, Esq. (SBN: 225557) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 ABBAS KAZEROUNIAN (SBN 249203) Kazerouni Law Group, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: [email protected] Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
I, Abbas Kazerounian, declare as follows:
1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina
Florence, William Florence, and Scott Van Horn (collectively referred to as
“Plaintiffs”). I am over the age of 18 and am fully competent to make this
declaration. I was admitted to the State Bar of California in 2007 and have
been a member in good standing ever since that time. I have litigated cases
Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY ABBAS KAZEROUNIAN IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT
Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
Bank of America, N.A. Defendant.
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in both state and federal courts in California, Washington, Nevada, Arizona,
Arkansas, New York, New Jersey, Colorado, Tennessee, Ohio, Florida,
Illinois and Texas. I am admitted in every federal district in California and
have handled federal litigation in the federal districts of California. I am
also admitted to the state bars of Texas, Illinois, Washington, Michigan,
District of Columbia, the Ninth Circuit Court of Appeals, the Eighth Circuit
Court of Appeals, and the Supreme Court of the United States.
2. If called as a witness, I would competently testify to the matters herein from
personal knowledge. The declaration is based upon my personal knowledge,
except where expressly noted otherwise.
3. I submit this declaration in support of the Plaintiffs’ motion for fees and
costs and final approval of class action settlement.
4. This action, which was originally filed on August 21, 2015, was taken on a
contingency fee basis agreeing to advance all necessary expenses knowing
that I would only receive a fee if there were a recovery.
5. On July 26, 2016 the parties participated in a mediation conducted by
Honorable Edward A. Infante (Ret.) that culminated with the filing of the
Motion for Preliminary Approval.
6. I have been preliminarily approved as Class Counsel in this matter.
7. I have incurred 111.1 hours in connection with this action, which time
records were carefully reviewed. Specifically, I have incurred hours
reviewing documents, motion practice, communicating with opposing
counsel, communicating with co-counsel on related matters, preparing for
hearings, traveling for depositions, and participating in mediation.
8. In my fee request I have included a request for 30 hours of additional time
that I will likely spend going forward in seeking final approval of, and
implementing the Settlement, including assisting Class Members with
claims and overseeing claims administration, and preparing and filing the
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motion for final approval of class action settlement.
9. As of October 2017, my firm, Kazerouni Law Group along with my co-
counsel’s firm, Hyde & Swigart, have incurred $19.023.42 in litigation
costs.
10. I am not seeking recovery of fees for hours incurred by paralegals working
at Kazerouni Law Group on this action.
11. I believe that the Parties are fully apprised of the relative strengths and
weaknesses of each other’s claims and defenses and the potential risks to
each party of pursuing further litigation in this matter, especially following
mediation.
12. I continue to be unaware of any conflict of interest between Plaintiffs and
any settlement class member or between Plaintiffs and Plaintiffs’ attorneys.
CLASS COUNSEL’S EXPERIENCE 13. Since my admission to the State Bar of California in 2007, I have been
engaged exclusively in the area of consumer rights litigation, primarily in
the area of fair credit reporting, fair debt collections, the defense of debt
collection lawsuits, class action litigation under the Telephone Consumer
Protection Act, California’s invasion of privacy statutes pursuant to Penal
Code § 630, et seq., and false advertising actions concerning consumer
products.
14. The hourly rate that I am seeking in this action is $605, which I believe is
reasonable.
15. Recently, I was approved for an hourly rate of $605 in Oxina v. Lands’ End,
Inc., Case No. 3:14-cv-02577-MMA-NLS (United States District Court,
Southern District of California; Dec. 2, 2016) and Abdeljalil v. GE Capital
Retail Bank, No. 3:12-cv-02078-JAH-MDD (S.D. Cal. Dec. 22, 2016).
16. I was previously approved for an hourly rate of $595 in Mount v. Wells
Fargo Bank, N.A., Case No. B260585 (Court of Appeal of the State of
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California, Second Appellate District; Feb. 10, 2016). Before that, I was
approved for an hourly rate of $565 in Sherman v. Kaiser Foundation
Health Plan, Inc. 3:13-cv-00981-JAH-JMA, Dkt. No. 58 (May 12, 2015).
17. My firm, Kazerouni Law Group, APC, in which I am a principal, has
litigated over 2000 cases in the past eight years. My firm has six offices in
Orange County, California, Oakland, California, San Luis Obispo,
California, Phoenix, Arizona, Las Vegas, Nevada, and Dallas, Texas.
Kazerouni Law Group, APC has extensive experience in consumer class
actions and other complex litigation. My firm has a history of aggressive,
successful prosecution of consumer class actions, Approximately 95%
percent of my practice concerns consumer litigation in general.
KAZEROUNI LAW GROUP, APC’S CONSUMER RELATED EXPERIENCE AND RESULTS
18. A brief summary of a non-inclusive list of notable published decisions are as
follows:
a. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-
GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion
for summary judgment was denied holding that a single call or text
message with the use of an ATDS may be actionable under the TCPA);
b. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-
NLS, 2014 U.S. Dist. LEXIS 9146 (S.D. Cal.) (Defendant’s motion to
dismiss or in the alternative to strike the class allegations was denied
finding that debt collection calls were not exempt from coverage under
the TCPA);
c. Iniguez v. The CBE Group, Inc., 2013 U.S. Dist. LEXIS 127066 (E.D.
Cal.); 13-CV-00843-JAM-AC (The court denied Defendant’s motion to
dismiss and to strike class allegations holding that the TCPA applies to
any call made to a cellular telephone with an ATDS);
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d. Stemple v. QC Holdings, Inc., No. 12-cv-01997-BAS (WVG), 2014 U.S.
Dist. LEXIS 125313 (S.D. Cal. Sep. 5, 2014) (order denying defendant’s
motion for reconsideration of class certification under the TCPA);
e. Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016) (order affirming
decision finding unaccepted offer of judgment under Fed. R. Civ. P. 68
did not moot the plaintiff’s individual TCPA claims).
19. I have filed and litigated numerous consumer class actions over the last
several years, including but not limited to the following, which I am or have
been personally involved in:
a. Lemieux v. EZ Lube, LLC, et al., 12-CV-01791-JLS-WYG (S.D. Cal.)
(Served as co-lead counsel; finally approved on December 8, 2014);
b. Malta, et al. v. Wells Fargo Home Mortgage, et al., 10-CV-1290-IEG
(BLM) (Served as co-lead counsel for a settlement class of borrowers in
connection with residential or automotive loans and violations of the
TCPA in attempts to collect on those accounts; obtained a common
settlement fund in the amount of $17,100,000; final approval granted in
2013);
c. Conner v. JPMorgan Chase Bank, et al., 10-CV-1284 DMS (BGS) (S.D.
Cal.) (finally approved $11,973,558);
d. In Re: Midland Credit Management, Inc., Telephone Consumer
Protection Act Litigation, 11-md-2286-MMA (MDD) (S.D. Cal.)
(Counsel for a Plaintiff in the lead action, prior to the action being
recategorized through the multi-district litigation process; finally
approved for $18,000,000);
e. In Re: Portfolio Recovery Associates, LLC Telephone Consumer
Protection Act Litigation, 11-md-02295-JAH (BGS) (Counsel for a
Plaintiff in the lead action, prior to the action being recategorized through
the multi-district litigation process; preliminarily approved);
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f. Arthur v. SLM Corporation, 10-CV-00198 JLR (W.D. Wash.)
(Nationwide settlement achieving the then-largest monetary settlement in
the history of the TCPA concerning calls to cellular telephone at the time:
$24.15 million; final approval granted in 2012);
g. Lo v. Oxnard European Motors, LLC, et al., 11-CV-1009-JLS-MDD
(S.D. Cal.) (Achieving one of the highest class member payouts in a
TCPA action of $1,331.25 per claimant; final approval granted in 2012);
h. Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., 10-01777-AJB-NLS
(S.D. Cal.) (Approved as co-lead counsel and worked to obtain a national
TCPA class settlement where claiming class members each received
payment in the amount of $70.00 per claimant; final approval granted in
2013);
i. Barani v. Wells Fargo Bank, N.A., 12-CV-02999-GPC (KSC) (S.D. Cal.)
(Co-lead class counsel in a settlement under the TCPA for the sending of
unauthorized text messages to non-account holders in connection to wire
transfers; finally approved on March 6, 2015 for over $1,000,000);
j. Mills v. HSBC Bank Nevada, N.A., Case No. 12-CV-04010-SI (N.D.
Cal.) (Finally approved for $39,975,000);
k. Martin v. Wells Fargo Bank, N.A., 12-CV-06030-SI (N.D. Cal.);
l. Heinrichs v. Wells Fargo Bank, N.A., 13-CV-05434-WHA (N.D. Cal.);
m. Newman v. ER Solutions, Inc., 11-CV-0592H (BGS);
n. In Re Jiffy Lube International, Inc., MDL No. 2261 (Finally approved for
$47,000,000.00);
o. Jaber v. NASCAR, 11-CV-1783 DMS (WVG) (S.D. Cal.);
p. Ridley v. Union Bank, N.A., 11-CV-1773 DMS (NLS) (S.D. Cal.);
q. Ryabyshchuk v. Citibank (South Dakota) N.A., et al, 11-CV-1236-IEG
(WVG);
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r. Sherman v. Kaiser Foundation Health Plan, Inc., 13-CV-0981-JAH
(JMA) (S.D. Cal.) (Settled for $5,350,000 and finally approved on May
12, 2015; served as co-lead counsel);
s. Rivera v. Nuvell Credit Company LLC, 13-CV-00164-TJH-OP (E.D.
Cal.);
t. Karayan v. Gamestop Corp., 3:12-CV-01555-P (N.D. Texas);
u. Foote v. Credit One Bank, N.A. et al., 13-cv-00512-MWF-PLA (C.D.
Cal.);
v. Webb v. Healthcare Revenue Recovery Group, 13-cv-00737–RS (N.D.
Cal.);
w. Knell, et al. v. FIA Card Services, N.A., 13-CV-01653-AJB-WVG (S.D.
Cal.) (California class action settlement under Penal Code 632 et seq., for
claims of invasion of privacy. Settlement resulted in a common fund in
the amount of $2,750,000; finally approved in August 15, 2014);
x. Hoffman v. Bank of America Corporation, 12-CV-00539-JAH-DHB
(S.D. Cal.) (California class action settlement under Penal Code 632 et
seq., for claims of invasion of privacy. Settlement resulted in a common
fund in the amount of $2,600,000; finally approved on November 6, 2014
and served as co-lead counsel);
y. Couser v. Comenity Bank, 12-cv-02484-MMA-BGS (S.D. Cal. Oc. 2,
2014) (Finally approved for $8,475,000 on May 27, 2015 as served as co-
lead counsel);
z. Couser v. Apria Healthcare, Inc. et al., 13-cv-00035-JVS-RNB (C.D.
Cal. Oct. 27, 2014) (Finally approved on March 9, 2015 and served as
co-lead counsel);
aa. Rose v. Bank of America Corporation et al., 12-cv-04009-EJD (N.D.
Cal.) (Finally approved for $32,000,000 in 2014);
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bb. Newman v. AmeriCredit Financial Services, 11-cv-03041-DMS-BLM
(S.D. Cal.) (finally approving TCPA settlement for over $6,500,000 on
March 28, 2016);
cc. Fox v. Asset Acceptance, LLC, 14-cv-00734-GW-FFM (C.D. Cal. July 1,
2016) (finally approved TCPA class action for $1,000,000; $200,000
cash and $800,000 debt relief);
dd. Barrett v. Wesley Financial Group, LLC, 13-cv-00554-LAB-KSC (S.D.
Cal.) (Class certification granted); and,
ee. Gehrich v. Chase Bank, N.A., 12-cv-5510 (N.D. Cal.) (finally approved
for $34,000,000);
ff. Macias v. Water & Power Community Credit Union, BC515936 (Los
Angeles Superior Court) (Class certification granted under the Rosenthal
Fair Debt Collection Practices Act; class action settlement finally
approved on April 21, 2016);
gg. Mount v. Wells Fargo Bank, N.A., BC395959 (Sup. Ct. Los Angeles)
(finally approved for $5,600,000);
hh. Oxina v. Lands’ End, Inc., 3:14-cv-02577-MMA-NLS (S.D. Cal. 2016)
(finally approved settlement under California Made in the USA statute);
ii. LaPuebla v. BirchBox, Inc., 3:15-cv-00498-BEN-BGS (S.D. Cal. 2016)
(finally approved settlement in unlawful auto-renewal action);
jj. Medeiros v. HSBC Bank Nevada, N.A., 3:14-cv-01786-JLS-MDD
(S.D.Cal. 2016) (preliminarily approved action under the California
Invasion of Privacy Act, Penal Code 632, et seq.);
kk. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal. Nov.
7, 2016) (finally approved for $1,500,000);
ll. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.)
(Class Certification granted and finally approved for $7,000,000).
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20. Many of the cases listed above, which have settled, resulted in the creation
of combined common funds and/or distribution to class member in the
hundreds of millions of dollars. The outstanding results mentioned above
are a direct result of the diligence and tenacity shown by Kazerouni Law
Group, APC and myself, in successfully prosecuting complex class actions.
21. I argued before the Ninth Circuit Court of Appeals in the case of Knutson v.
Sirius XM Radio, No. 12-56120 (9th Cir. 2014) as co-lead counsel, which
resulted in an order in favor of my client. Also, on December 6, 2016, I
argued before the Ninth Circuit Court of Appeals in the case of Marks v.
Crunch San Diego, LLC, No. 14-56834.
ADDITIONAL RELEVANT TRAINING, SPEAKING/TEACHING ENGAGEMENTS AND ASSOCIATIONS
22. I am an adjunct professor at California Western School of Law where I teach
a three-credit course in consumer law.
23. I have undergone extensive training in the area of consumer law and the
Telephone Consumer Protection Act. The following is a list of recent
training conferences I attended:
a. Four-day National Consumer Law Center Conference; Nashville, TN –
2008;
b. Three-day National Consumer Law Center Conference; Portland, OR -
2008;
c. Three-day National Consumer Law Center Conference; San Diego, CA -
2009;
d. Three-day National Consumer Law Center Conference; Seattle, WA -
2011;
e. National Consumer Law Center Conference in 2013;
f. National Consumer Law Center Conference in 2014;
g. National Consumer Law Center Conference in 2015;
h. National Consumer Law Center Conference in 2016;
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i. Three-day CAALA Conference; Las Vegas, NV – 2009;
j. Three-day CAALA Conference; Las Vegas, NV – 2013;
k. Three-day CAALA Conference; Las Vegas, NV – 2015;
l. Three-day CAALA Conference; Las Vegas, NV – 2016;
m. Three-day CAOC Conference – 2014 and 2015;
n. Speaker at ABA National Conference, Business Litigation Section;
Trends in Consumer Litigation; San Francisco, CA – 2013;
o. Speaker at the ABA TCPA National Webinar (Consumer Protection,
Privacy & Information Security, Private Advertising Litigation, and
Media & Technology Committees) – September 2013;
p. Spoke at the 2014 ACA Conference in November 2014;
q. Speaker at ACI Conference in Dallas, TX in September of 2016
concerning The Borrower's Perspective: Insight From The Plaintiffs' Bar
and Consumer Advocates;
r. Speaker on TCPA panel in September of 2016 at the Annual Consumer
Financial Services Conference; and,
s. Due to speak at the 2016 CAOC Conference in November of 2016.
24. As one of the main plaintiff litigators of consumer rights cases in the
Central District of California, I have been requested to and have made
regular presentations to community organizations regarding debt collection
laws and consumer rights, including the Telephone Consumer Protection
Act (“TCPA”). These organizations include Whittier Law School, Iranian
American Bar Association, Trinity School of Law and Chapman Law
School, University of California, Irvine, and California Western School of
Law.
25. I was the principle anchor on Time Television Broadcasting every Thursday
night as an expert on consumer law generally, and the TCPA specifically,
between 2012 and 2013.
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26. I was named Rising Star by San Diego Daily Tribune in 2012, and Rising
Star in Super Lawyers Magazine in 2013, 2014 and 2015. I was named a
Super Lawyer by Super Lawyers Magazine in 2016.
27. I lectured in Class Action Trends at the CAOC 2015 Conference in San
Francisco.
28. I was selected for membership into The National Trial Lawyers: Top 40
Under 40 in 2016.
29. I was a panelist in a webinar, ABA Telephonic Brown Bag re: TCPA, on
August 25, 2015.
30. I lectured in Class Action Trends at the CAOC 2015 Conference in San
Francisco, California.
31. In January of 2016, I spoke on the impact of the Federal Communications
Comission’s 2015 Declaratory Ruling on TCPA litigation at the ABA
National Convention in Salt Lake City, Utah.
32. In May of 2016, I spoke on Class Action Trends at the CAOC seminar in
Palm Springs, California.
33. I lectured on the TCPA before the ABA Business Law Section, Consumer
Financial Services Committee in January 2016 at an event in Utah entitled,
“Impact of the FCC’s 2015 Rulings on TCPA Litigation .”
34. In 2016, I wrote an article entitled “Finding a Balance” that was published
in the Nutrition Business Journal, concerning a lawsuit filed under the
Racketeer Influenced and Corrupt Organization Act.
35. I was published in the Daily Journal in September of 2016, with the title,
“The FDCPA: The Forgotten Statute.”
36. I am often called upon to give legal analysis on popular television and radio
shows such as Dr. Drew Midday Live and Fox 5.
37. In March of 2016, I moderated the Judges Panel on Class Action Trends
and Federal Litigation Trends at the NCLC Conference.
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38. I spoke on privacy rights on a panel before the California State Bar
Convention in 2016.
39. I am a member in good standing of the following local and national
associations:
a. Consumer Attorneys Association of Los Angeles;
b. The Orange County Bar Association;
c. Twice served as former President of the Orange County Chapter of
the Iranian American Bar Association;
d. Member of the Orange County Trial Lawyers Association;
e. Member in good standing of National Association of Consumer
Advocates;
f. Member of Consumer Attorneys of California;
g. Member of the Federal Bar Association;
h. Member of the Leading Forum of the American Association of
Justice;
i. Member of the American Bar Association;
j. Member of the Western Trial Lawyers Association.
I declare under penalty of perjury, under the laws of the United States and
the State of California, that the foregoing is true and correct. Executed this
12th day of October 2017, at San Diego, California.
By: /s/ Abbas Kazerounian
Abbas Kazerounian
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DECLARATION OF JOSHUA SWIGART 15-cv-0381-VC
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David J. McGlothlin, Esq. (SBN: 253265) [email protected] Joshua B. Swigart, Esq. (SBN: 225557) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 ABBAS KAZEROUNIAN (SBN 249203) Kazerouni Law Group, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: [email protected] Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
I, Joshua B. Swigart, declare as follows:
1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina
Florence, William Florence, and Scott Van Horn (collectively referred to as
“Plaintiffs”). I am over the age of 18 and am fully competent to make this
declaration. I am a member in good standing of the bars of the State of
California, Washington, District of Columbia and Michigan. I am also
Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY JOSHUA SWIGART IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT
Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
Bank of America, N.A. Defendant.
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admitted in every federal district in California and have handled federal
litigation in Washington, Arizona, Minnesota, Tennessee and Texas.
2. If called as a witness, I would competently testify to the matters herein from
personal knowledge. The declaration is based upon my personal knowledge,
except where expressly noted otherwise.
3. I submit this declaration in support of the Plaintiffs’ motion for fees and
costs and final approval of class action settlement.
4. This action, which was originally filed on August 21, 2015, was taken on a
contingency fee basis agreeing to advance all necessary expenses knowing
that I would only receive a fee if there were a recovery.
5. On July 26, 2016 the parties participated in a mediation conducted by
Honorable Edward A. Infante (Ret.) that culminated with the filing of the
Motion for Preliminary Approval.
6. I have been preliminarily approved as Class Counsel in this matter.
7. I have incurred 77.4 hours in connection with this action, which time
records were carefully reviewed. Specifically, I have incurred hours
reviewing documents, motion practice, communicating with opposing
counsel, communicating with co-counsel on related matters, preparing for
hearings, and a significant amount of time participating in several
mediations.
8. In my fee request I have included a request for 10 hours of additional time
that I will likely spend going forward in seeking final approval of, and
implementing the Settlement, including assisting Class Members with
claims and overseeing claims administration, and preparing and filing the
motion for final approval of class action settlement.
9. As of October 12, 2017, my firm, Hyde & Swigart along with my co-
counsel’s firm, Kazerouni Law Group, have incurred $19.023.42 in
litigation costs.
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10. I am not seeking recovery of fees for hours incurred by paralegals working
at Hyde & Swigart on this action.
11. I believe that the Parties are fully apprised of the relative strengths and
weaknesses of each other’s claims and defenses and the potential risks to
each party of pursuing further litigation in this matter, especially following
mediation.
12. I continue to be unaware of any conflict of interest between Plaintiffs and
any settlement class member or between Plaintiffs and Plaintiffs’ attorneys. CLASS COUNSEL’S EXPERIENCE
13. Since my admission to the California bar in 2003, I have been engaged
exclusively in the area of consumer rights litigation, primarily in the area of
fair credit reporting, fair debt collections, the defense of debt collection
lawsuits, class action litigation under the Telephone Consumer Protection
Act, California’s invasion of privacy statutes pursuant to Penal Code § 630,
et seq., and false advertising actions concerning consumer products.
14. The hourly rate for my work in this action is $605.
15. I was recently approved for an hourly rate of $605 in Oxina v. Lands’ End,
Inc., 3:14-cv-02577-MMA-NLS (S.D. Cal. Dec. 2, 2016) and Abdeljalil v.
GE Capital Retail Bank, 3:12-cv-02078-JAH-MDD (S.D. Cal. Dec. 22,
2016).
16. I was approved for an hourly rate of $595 in Sherman v. Kaiser Foundation
Health Plan, Inc. 3:13-cv-00981-JAH-JMA, Dkt. No. 58 (May 12, 2015)
and Mount v. Wells Fargo Bank, N.A., Case No. B260585 (Court of Appeal
of the State of California, Second Appellate District; Feb. 10, 2016), and
impliedly so in Couser v. Apria Healthcare Inc., et al., 13-cv-00035-JVS-
RNB, Dkt. No. 50 (C.D. Cal. March 9, 2015), and Lemieux v. EZ Lube, Inc.
et al., 12-cv-01791-BAS-JLB, Dkt. No. 83 (S.D. Cal.). Prior to those cases,
I had been approved for $545 in Knutson v. Schwan’s Home Service, Inc.,
3:12-cv-00964-GPC-DHB, Dkt. No. 151 (S.D. Cal. April 1, 2015), Barani v.
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Wells Fargo Bank, N.A., 3:12-cv-02999-GPC-KSC, Dkt. No. 32 (S.D. Cal.),
Hoffman v. Bank of America, N.A., 12-cv-00539-JAH-DHB, Dkt. No. 67
(S.D. Cal.), and Zaw v. Nelnet Business Solutions, Inc., 13-cv-05788-RS,
Dkt. No. 39 (N. D. Cal.). Thus, I believe my requested hourly billing rate of
$620 is justified.
17. My firm, Hyde & Swigart, in which I am a principal, has litigated over 1,200
cases in the past 13 years. My firm has several offices, including in San
Diego, California; Riverside, California; Phoenix, Arizona; Boulder,
Colorado; Minneapolis, Minnesota; Dallas, Texas; and Las Vegas, Nevada.
18. Hyde & Swigart has extensive experience in consumer class actions and
other complex litigation. My firm has a history of aggressive, successful
prosecution of consumer class actions.
HYDE & SWIGART’S CONSUMER RELATED EXPERIENCE AND RESULTS
19. Hyde & Swigart has extensive experience in consumer related issues. A
brief summary of a non-inclusive list of notable decisions are as follows:
a. Knell v. FIA Card Services, N.A., et al., 12-CV-426 AJB(WVG)(S.D.
Cal. 2014) (Co-lead counsel on a California class action involving
privacy rights under Cal. Penal Code § 632 et seq. Class relief provided
for a common fund in the amount of $2,750,000. Counsel obtained final
approval on August 15, 2014);
b. Hoffman v. Bank of America, N.A., 12-CV-539 JAH(DHB) (S.D. Cal.
2014) (Co-lead counsel on a California class action involving privacy
rights under Cal. Penal Code § 632 et seq. Class relief provided for a
common fund in the amount of $2,600,000. Finally approved on
November 6, 2014);
c. Zaw v. Nelnet Business Solutions, Inc., et al., C 13-05788 RS (N.D. Cal.
2014) (Co-lead counsel on a California class action involving privacy
rights under Cal. Penal Code § 632 et seq. Class relief provided for a
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common fund in the amount of $1,188,110. Final approval granted on
December 1, 2014);
d. CashCall, Inc. v. Superior Court, 159 Cal. App. 273 (2008) (Allowing
the original plaintiff who lacked standing in a class action to conduct pre-
certification discovery of the identities of potential plaintiffs with
standing);
e. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) (Co-lead counsel
on a class action involving privacy rights under Cal. Penal Code § 632 et
seq. Appeals court reversing the trial courts granting of Defendant’s
motion for summary judgment after case was certified);
f. Engelen v. Erin Capital Management, LLC, et al., No. 12-55039 (9th Cir.
2013, not for publication, D.C. No.: 3:10-cv-01125-BEN-RBB)
(Reversing the lower court’s granting of summary judgment to the
defendant debt collector on the basis of the bona fide error defense and
remanding for further proceedings);
g. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-
GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion
for summary judgment was denied holding that a single call or text
message with the use of an ATDS may be actionable under the TCPA);
h. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-
NLS, 2014 U.S. Dist. LEXIS 9146 (S.D. Cal.) (Defendant’s motion to
dismiss or in the alternative to strike the class allegations was denied
finding that debt collection calls were not exempt from coverage under
the TCPA);
i. Iniguez v. The CBE Group, Inc., 13-CV-00843-JAM-AC, 2013 U.S. Dist.
LEXIS 127066 (E.D. Cal.) (The court denying Defendant’s motion to
dismiss and to strike class allegations holding that the TCPA applies to
any call made to a cellular telephone with an ATDS);
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j. Catala v. Resurgent Capital Servs., L.P., 08-CV-2401 NLS, 2010 U.S.
Dist. LEXIS 63501 (S.D. Cal.) (Co-lead counsel on a class settlement
involving the Fair Debt Collection Practices Act);
k. Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104 (C.D. Cal. 2005)
(Summary judgment was granted sua sponte in favor of a debtor where
debt collector violated the Fair Debt Collection Practices Act, when its
employees failed to disclose the debt collector’s identity and the nature of
its business in the messages left on the debtor’s answering machine).
This case has now been followed in at least four different districts
throughout the country.
l. Edstrom v. All Servs. & Processing, 2005 U.S. Dist. LEXIS 2773 (N.D.
Cal. 2005) (Numerous omissions from a letter sent by a debt collector to
members of a homeowners association, and a statement requiring any
dispute to be put in writing, violated 15 U.S.C. § 1692g(a) of the FDCPA
and Cal. Civ. Code §1788.17. The FDCPA required strict compliance;
actual confusion on debtors’ part was not required);
m. Forsberg v. Fid. Nat’l Credit Servs., 2004 U.S. Dist. LEXIS 7622 (S.D.
Cal. 2004) (Plaintiff alleged sufficient facts to support his claim that a
collection company, in its initial communication, did not comply with the
statutory requirements for notice of validation of debts under the
FDCPA);
n. Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (N.D. Cal. 2005)
(Court struck Defendant’s counter claim of the underlying debt in a fair
debt action based on lack of subject matter jurisdiction);
o. Geoffroy, et al. v. Washington Mutual Bank, 484 F. Supp. 2d 1115 (S.D.
Cal. 2007) (Court striking down Defendant’s arbitration agreement as
both procedurally and substantively unconscionable);
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p. Yang v. DTS Financial Group, 07-CV-1731 JLS (WMc) (Holding that
for profit debt settlement companies are covered under the FDCPA and
can be construed as “debt collectors” under 15 U.S.C. § 1692a(6));
q. Mason v. Creditanswers, 2008 U.S. Dist. LEXIS 68575 (Holding that a
forum selection clause causing a California consumer to litigate its claims
seems contrary to the polices advanced by certain consumer protection
statutes);
r. Myers v. LHR, Inc., 543 F.Supp.2d 1215 (2008) (Recognizing actual and
statutory damages in the amount of $92,000 in a default judgment based
on violations of the State and Federal collection statutes);
s. Yates v. Allied Intl Credit Corp., 578 F. Supp. 2d 1251 (2008) (Holding a
debtors claim based on the FDCPA stemming from the filing of a false
police report was not subject to the litigation privilege under Cal. Civ.
Code § 47(b));
t. Owings v. Hunt & Henriques, et al., 2010 U.S. Dist. LEXIS 91819 (S.D.
Cal.) (Recognizing that the Service Members Civil Relief Act applies to
California National Guard Members and that the debt collection
attorney’s false declaration the court violates the FDCPA);
u. Heathman v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS
98742 (S.D. Cal. 2013) (Holding that failing to properly list and disclose
the identify of the original creditor in a state collection pleading is a
violation of the Fair Debt Collection Practices Act under 15 U.S.C. §
1692e);
v. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal. Nov.
7, 2016) (TCPA action finally approved for $1,500,000);
w. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.)
(Class Certification granted and finally approved for $7,000,000).
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ADDITIONAL RELEVANT TRAINING,
SPEAKING/TEACHING ENGAGEMENTS AND ASSOCIATIONS 20. I have undergone extensive training in the area of consumer law. The
following is a list of recent training conferences I attended:
a. National Consumer Law Conference; Oakland, CA – 2003;
b. National Consumer Law Conference (FDCPA Mini-Conference);
Kansas City, MO – 2004;
c. National Consumer Law Conference; Boston, MA – 2004;
d. Five-day extensive one-on-one training with The Barry Law Office;
San Diego, CA –2005;
e. Three-day FDCPA Mini-Conference; Minneapolis, MN – 2005;
f. Four-day extensive one-on-one training with The Barry Law Office;
Minneapolis, MN – 2005;
g. Four-day National Association of Consumer Advocates Conference;
Minneapolis, MN – 2005;
h. Four-day National Consumer Law Center Conference; Nashville, TN
–2008;
i. Three-day National Consumer Law Center Conference; Portland, OR
-2008;
j. Speaker at a Three-day National Consumer Law Center Conference;
San Diego, CA - 2009;
k. Speaker ABA/JAG presentation to military service members and
counsel; MCRD, San Diego CA – 2010;
l. Speaker ABA teleconference on defending consumer credit card debt
and related issues; San Diego, CA – 2010;
m. Three-day National Consumer Law Center Conference; Seattle, WA -
2011;
n. Two-day FDCPA Mini-Conference; New Orleans; LA - 2012;
Case 3:15-cv-03831-VC Document 58-3 Filed 10/12/17 Page 8 of 10
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o. Two-day National Consumer Law Center Conference on the FDCPA;
Seattle, WA - 2012;
p. National Consumer Law Center Conference, National Convention;
Balitmore, MD - 2013;
q. Speaker ABA National Conference, Business Litigation Section;
Trends in Consumer Litigation; San Francisco, CA - 2013;
r. Speaker National Consumer Law Center; Nuts and Bolts of TCPA
Litigation; San Antonio, TX - 2014;
s. Speaker San Diego County Bar Association; Convergence of the
FDCPA and Consumer Bankruptcy; San Diego, CA - 2014;
t. Guest Speaker at California Western School of Law; Consumer Law
class - 2014;
u. 8th Annual Class Action Seminar; San Francisco, CA – 2014;
v. Speaker regarding class actions at the NCLC National Conference
held in Anaheim, CA in 2016.
21. I am a member in good standing of the following local and national
associations:
a. National Association of Consumer Advocates;
b. Federal Bar Association, Southern District of California Chapter;
c. San Diego County Bar Association;
d. Riverside County Bar Association;
e. San Bernardino County Bar Association;
f. Enright Inns of Court (2011-2014);
g. American Association for Justice.
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I declare under penalty of perjury, under the laws of the United States and
the State of California, that the foregoing is true and correct. Executed this 12th
day of October 2017, at San Diego, California.
By: /s/ Joshua B. Swigart
Joshua B. Swigart
Case 3:15-cv-03831-VC Document 58-3 Filed 10/12/17 Page 10 of 10
DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC
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David J. McGlothlin, Esq. (SBN: 253265) [email protected] Joshua B. Swigart, Esq. (SBN: 225557) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 ABBAS KAZEROUNIAN (SBN 249203) Kazerouni Law Group, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: [email protected] Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
I, David J. McGlothlin, declare as follows:
1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina Florence,
William Florence, and Scott Van Horn (collectively referred to as
“Plaintiffs”). I am over the age of 18 and am fully competent to make this
declaration. I am a member in good standing of the bars of the State of
California, Arizona and Oregon. I am also admitted in every federal district in
Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY DAVID MCGLOTHLIN IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT
Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
Bank of America, N.A. Defendant.
Case 3:15-cv-03831-VC Document 58-4 Filed 10/12/17 Page 1 of 9
DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC
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those states and have also handled federal litigation in Georgia, Arizona,
Nevada, Utah, Colorado and Ohio.
2. If called as a witness, I would competently testify to the matters herein from
personal knowledge. The declaration is based upon my personal knowledge,
except where expressly noted otherwise.
3. I submit this declaration in support of the Plaintiffs’ motion for fees and costs
and final approval of class action settlement.
4. This action, which was originally filed on August 21, 2015, was taken on a
contingency fee basis agreeing to advance all necessary expenses knowing that
I would only receive a fee if there were a recovery.
5. On July 26, 2016 the parties participated in a mediation conducted by
Honorable Edward A. Infante (Ret.) that culminated with the filing of the
Motion for Preliminary Approval.
6. I have been preliminarily approved as Class Counsel in this matter.
7. I have incurred 202.8 hours in connection with this action, which time records
were carefully reviewed. Specifically, I have incurred hours reviewing
documents, motion practice, communicating with opposing counsel,
communicating with co-counsel on related matters, preparing for hearings,
and a significant amount of time participating in several mediations.
8. In my fee request I have included a request for 30 hours of additional time
that I will likely spend going forward in seeking final approval of, and
implementing the Settlement, including assisting Class Members with claims
and overseeing claims administration, and preparing and filing the motion for
final approval of class action settlement.
9. As of October 12, 2017, my firm, Hyde & Swigart along with my co-
counsel’s firm, Kazerouni Law Group, have incurred $19.023.42 in litigation
costs.
10. I am not seeking recovery of fees for hours incurred by paralegals working at
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DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC
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Hyde & Swigart on this action.
11. I believe that the Parties are fully apprised of the relative strengths and
weaknesses of each other’s claims and defenses and the potential risks to each
party of pursuing further litigation in this matter, especially following
mediation.
12. I continue to be unaware of any conflict of interest between Plaintiffs and any
settlement class member or between Plaintiffs and Plaintiffs’ attorneys.
CLASS COUNSEL’S EXPERIENCE 13. Since my admission to the California bar in 2007, I have been engaged
exclusively in the area of consumer rights litigation, primarily in the area of
fair debt collections, the defense of debt collection lawsuits, class action
litigation under the Telephone Consumer Protection Act, California’s invasion
of privacy statutes pursuant to Penal Code § 630, et seq., and false advertising
actions concerning consumer products.
14. The hourly rate for my work in this action is $450.
15. I was recently approved for an hourly rate of $395 in Tabitha Roberts v.
Barrett Asset Recovery Services LLC, et al. (D. of Ariz. May 22, 2017.)
16. In April of 2015 my hourly rate of $365 was approved in the United States
District Court, District of Arizona by the Honorable Stephen P. Logan in
Varela v. Enhanced Acquisitions LLC, case no 2:14-cv-02418-SPL (Ariz.
April 2015) and again approved at the same rate in the United States District
Court, District of Arizona by the Honorable John W. Sedwick in Magee v.
National Credit Systems, Inc., case no 2:16-cv-02809-JJT (Ariz. April 2017).
These cases mentioned occurred in Arizona and were simple Fair Debt
Collection Practices Act cases. Thus, I believe my hourly billing rate of $425
in the California market for this complex and lengthy class action is justified.
17. My firm, Hyde & Swigart, in which I am a partner, has litigated over 1,000
cases in the past 10 years I have been employed as an attorney. My firm has
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DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC
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several offices, including in San Diego, California; Riverside, California;
Phoenix, Arizona; Boulder, Colorado; Minneapolis, Minnesota; Dallas, Texas;
and Las Vegas, Nevada.
18. Hyde & Swigart has extensive experience in consumer class actions and other
complex litigation. My firm has a history of aggressive, successful prosecution
of consumer class actions.
HYDE & SWIGART’S CONSUMER RELATED EXPERIENCE AND RESULTS
19. Hyde & Swigart has extensive experience in consumer related issues. A brief
summary of a non-inclusive list of notable decisions are as follows:
a. Knell v. FIA Card Services, N.A., et al., 12-CV-426 AJB(WVG)(S.D. Cal.
2014) (Co-lead counsel on a California class action involving privacy
rights under Cal. Penal Code § 632 et seq. Class relief provided for a
common fund in the amount of $2,750,000. Counsel obtained final
approval on August 15, 2014);
b. Hoffman v. Bank of America, N.A., 12-CV-539 JAH(DHB) (S.D. Cal.
2014) (Co-lead counsel on a California class action involving privacy
rights under Cal. Penal Code § 632 et seq. Class relief provided for a
common fund in the amount of $2,600,000. Finally approved on November
6, 2014);
c. Zaw v. Nelnet Business Solutions, Inc., et al., C 13-05788 RS (N.D. Cal.
2014) (Co-lead counsel on a California class action involving privacy
rights under Cal. Penal Code § 632 et seq. Class relief provided for a
common fund in the amount of $1,188,110. Final approval granted on
December 1, 2014);
d. CashCall, Inc. v. Superior Court, 159 Cal. App. 273 (2008) (Allowing the
original plaintiff who lacked standing in a class action to conduct pre-
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certification discovery of the identities of potential plaintiffs with
standing);
e. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) (Co-lead counsel on
a class action involving privacy rights under Cal. Penal Code § 632 et seq.
Appeals court reversing the trial courts granting of Defendant’s motion for
summary judgment after case was certified);
f. Engelen v. Erin Capital Management, LLC, et al., No. 12-55039 (9th Cir.
2013, not for publication, D.C. No.: 3:10-cv-01125-BEN-RBB) (Reversing
the lower court’s granting of summary judgment to the defendant debt
collector on the basis of the bona fide error defense and remanding for
further proceedings);
g. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-
GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion for
summary judgment was denied holding that a single call or text message
with the use of an ATDS may be actionable under the TCPA);
h. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-
NLS, 2014 U.S. Dist. LEXIS 9146 (S.D. Cal.) (Defendant’s motion to
dismiss or in the alternative to strike the class allegations was denied
finding that debt collection calls were not exempt from coverage under the
TCPA);
i. Iniguez v. The CBE Group, Inc., 13-CV-00843-JAM-AC, 2013 U.S. Dist.
LEXIS 127066 (E.D. Cal.) (The court denying Defendant’s motion to
dismiss and to strike class allegations holding that the TCPA applies to any
call made to a cellular telephone with an ATDS);
j. Catala v. Resurgent Capital Servs., L.P., 08-CV-2401 NLS, 2010 U.S.
Dist. LEXIS 63501 (S.D. Cal.) (Co-lead counsel on a class settlement
involving the Fair Debt Collection Practices Act);
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k. Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104 (C.D. Cal. 2005)
(Summary judgment was granted sua sponte in favor of a debtor where
debt collector violated the Fair Debt Collection Practices Act, when its
employees failed to disclose the debt collector’s identity and the nature of
its business in the messages left on the debtor’s answering machine). This
case has now been followed in at least four different districts throughout
the country.
l. Edstrom v. All Servs. & Processing, 2005 U.S. Dist. LEXIS 2773 (N.D.
Cal. 2005) (Numerous omissions from a letter sent by a debt collector to
members of a homeowners association, and a statement requiring any
dispute to be put in writing, violated 15 U.S.C. § 1692g(a) of the FDCPA
and Cal. Civ. Code §1788.17. The FDCPA required strict compliance;
actual confusion on debtors’ part was not required);
m. Forsberg v. Fid. Nat’l Credit Servs., 2004 U.S. Dist. LEXIS 7622 (S.D.
Cal. 2004) (Plaintiff alleged sufficient facts to support his claim that a
collection company, in its initial communication, did not comply with the
statutory requirements for notice of validation of debts under the FDCPA);
n. Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (N.D. Cal. 2005)
(Court struck Defendant’s counter claim of the underlying debt in a fair
debt action based on lack of subject matter jurisdiction);
o. Geoffroy, et al. v. Washington Mutual Bank, 484 F. Supp. 2d 1115 (S.D.
Cal. 2007) (Court striking down Defendant’s arbitration agreement as both
procedurally and substantively unconscionable);
p. Yang v. DTS Financial Group, 07-CV-1731 JLS (WMc) (Holding that for
profit debt settlement companies are covered under the FDCPA and can be
construed as “debt collectors” under 15 U.S.C. § 1692a(6));
q. Mason v. Creditanswers, 2008 U.S. Dist. LEXIS 68575 (Holding that a
forum selection clause causing a California consumer to litigate its claims
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seems contrary to the polices advanced by certain consumer protection
statutes);
r. Myers v. LHR, Inc., 543 F.Supp.2d 1215 (2008) (Recognizing actual and
statutory damages in the amount of $92,000 in a default judgment based on
violations of the State and Federal collection statutes);
s. Yates v. Allied Intl Credit Corp., 578 F. Supp. 2d 1251 (2008) (Holding a
debtors claim based on the FDCPA stemming from the filing of a false
police report was not subject to the litigation privilege under Cal. Civ.
Code § 47(b));
t. Owings v. Hunt & Henriques, et al., 2010 U.S. Dist. LEXIS 91819 (S.D.
Cal.) (Recognizing that the Service Members Civil Relief Act applies to
California National Guard Members and that the debt collection attorney’s
false declaration the court violates the FDCPA);
u. Heathman v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS
98742 (S.D. Cal. 2013) (Holding that failing to properly list and disclose
the identify of the original creditor in a state collection pleading is a
violation of the Fair Debt Collection Practices Act under 15 U.S.C. §
1692e);
v. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal. Nov. 7,
2016) (TCPA action finally approved for $1,500,000);
w. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.)
(Class Certification granted and finally approved for $7,000,000). ADDITIONAL RELEVANT TRAINING,
SPEAKING/TEACHING ENGAGEMENTS AND ASSOCIATIONS 20. I have been requested to and have made regular appearances on KFNN 1510
Financial News Radio regarding consumer rights and debt collection laws.
21. I have appeared on KPHO’s Channel 5 10:00 p.m. news program to discuss
abusive debt collectors and consumer’s rights.
Case 3:15-cv-03831-VC Document 58-4 Filed 10/12/17 Page 7 of 9
DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC
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22. I have appeared on 3TV’s news program to discuss abusive debt collectors and
the credit industry.
23. I have appeared on the local NBC affiliate’s 12 News to discuss consumer
issues including the recent fraud by Wells Fargo Bank.
24. I have given a presentation regarding consumer rights and the military to the
Judge Advocates Office at the Marine Corp Air Station Base in Yuma,
Arizona.
25. I have undergone extensive training in the area of consumer law. The
following is a list of recent training conferences I attended:
a. Three-day National Consumer Law Center: Fair Debt Collection
Practices Training Conference, in Tucson, AZ - 2007;
b. Four-day National Consumer Law Center Conference; Nashville,
TN – 2008;
c. Three-day National Consumer Law Center Conference; Portland,
OR - 2008;
d. Three-day National Consumer Law Center Conference; San Diego,
CA - 2009.
e. Three-day National Consumer Law Center: Fair Debt Collecting
Training Conference in Seattle, WA in March 2011;
f. Three-day National Consumer Law Center: Fair Debt Collecting
Training Conference in New Orleans, LA in March 2012;
g. Four-day National Consumer Law Center Conference; Seattle, WA
– October, 2012;
h. Three-day National Consumer Law Center: Fair Debt Collection
Practices Training Conference, in Baltimore, MD - March 2013;
i. Three-day National Consumer Law Center: Fair Debt Collection
Practices Training Conference, in San Antonio, Tx - March 2014.
j. Consumer Attorneys Association of Los Angeles, Annual
Case 3:15-cv-03831-VC Document 58-4 Filed 10/12/17 Page 8 of 9
DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC
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Convention; Las Vegas, NV – September 2014;
k. Four-day National Consumer Law Center Conference; Tampa, FL –
November, 2014;
l. Three-day National Consumer Law Center: Fair Credit Reporting
Act Training Conference, in Las Vegas, NV - May 2015;
m. Consumer Attorneys Association of Los Angeles, Annual
Convention; Las Vegas, NV – September 2015;
n. Four-day National Consumer Law Center Conference; San
Antonio, TX – November, 2015;
o. Three-day National Consumer Law Center: Fair Debt Collection
Practices Training Conference, in Miami, FL - March 2016;
p. Four-day National Consumer Law Center Conference; Anaheim,
CA – October 2016.
26. I am a member in good standing of the following local and national
associations:
a. National Association of Consumer Advocates;
b. Federal Bar Association,;
c. Maricopa County Bar Association;
I declare under penalty of perjury, under the laws of the United States and the
State of California, that the foregoing is true and correct. Executed this 12th day of
October 2017, at Phoenix, Arizona.
By: /s/ David J. McGlothlin
David J. McGlothlin
Case 3:15-cv-03831-VC Document 58-4 Filed 10/12/17 Page 9 of 9
DECLARATION OF RYAN MCBRIDE 15-cv-03831-VC
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David J. McGlothlin, Esq. (SBN: 253265) [email protected] Joshua B. Swigart, Esq. (SBN: 225557) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 ABBAS KAZEROUNIAN (SBN 249203) Kazerouni Law Group, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: [email protected] Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
I, Ryan McBride, declare as follows:
1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina Florence,
William Florence, and Scott Van Horn (collectively referred to as
“Plaintiffs”). I am over the age of 18 and am fully competent to make this
declaration. I am a member in good standing of the bars of the State of
California, Arizona, Washington, and Utah.
Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY RYAN MCBRIDE IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT
Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
Bank of America, N.A. Defendant.
Case 3:15-cv-03831-VC Document 58-5 Filed 10/12/17 Page 1 of 4
DECLARATION OF RYAN MCBRIDE 15-cv-03831-VC
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2. If called as a witness, I would competently testify to the matters herein from
personal knowledge. The declaration is based upon my personal knowledge,
except where expressly noted otherwise.
3. I submit this declaration in support of the Plaintiffs’ motion for fees and costs
and final approval of class action settlement.
4. This action, which was originally filed on August 21, 2015, was taken on a
contingency fee basis agreeing to advance all necessary expenses knowing that
I would only receive a fee if there were a recovery.
5. On July 26, 2016 the parties participated in a mediation conducted by
Honorable Edward A. Infante (Ret.) that culminated with the filing of the
Motion for Preliminary Approval.
6. I have been preliminarily approved as Class Counsel in this matter.
7. I have incurred 50 hours in connection with this action, which time records
were carefully reviewed. Specifically, I have incurred hours reviewing
documents, motion practice, communicating with opposing counsel,
communicating with co-counsel on related matters, preparing for hearings,
and a significant amount of time participating in mediation.
8. In my fee request I have included a request for 10 hours of additional time
that I will likely spend going forward in seeking final approval of, and
implementing the Settlement, including assisting Class Members with claims
and overseeing claims administration, and preparing and filing the motion for
final approval of class action settlement.
9. As of June 2017, my firm, Kazerouni Law Group along with my co-counsel’s
firm, Hyde & Swigart, have incurred $19.023.42 in litigation costs.
10. I am not seeking recovery of fees for hours incurred by paralegals working at
Kazerouni Law Group on this action.
11. I believe that the Parties are fully apprised of the relative strengths and
weaknesses of each other’s claims and defenses and the potential risks to each
Case 3:15-cv-03831-VC Document 58-5 Filed 10/12/17 Page 2 of 4
DECLARATION OF RYAN MCBRIDE 15-cv-03831-VC
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party of pursuing further litigation in this matter, especially following
mediation.
12. I continue to be unaware of any conflict of interest between Plaintiffs and any
settlement class member or between Plaintiffs and Plaintiffs’ attorneys.
COUNSEL’S EXPERIENCE
13. I have been licensed to practice law since June 2014. I practice law full time as
a private consumer rights plaintiff’s attorney and am now the Managing
Associate of the Arizona office for Kazerouni Law Group. My primary
responsibilities include managing the Arizona office including and handling
all attorney responsibilities within Arizona.
14. I regularly manage and supervise other associates and staff within our firm,
assigning projects and giving advice.
15. I was primarily responsible for opening our office in Phoenix, Arizona, and
developing this location’s caseload.
16. Kazerouni Law Group Arizona branch’s practice is almost exclusively devoted
to consumer rights and the litigation of Federal Fair Credit Reporting Act
matters.
17. I have undergone broad training in the area of consumer rights. The following
is a list of recent training conferences:
! Three-day National Consumer Law Center: Fair Credit Reporting Act
Training Conference, in Las Vegas, NV - May 2015;
! Four-day National Consumer Law Center Conference; San Antonio, TX –
November, 2015;
18. I have been requested to make an appearance on ABC Channel 15 news
regarding the recent Volkswagen scandal and class action settlement.
Case 3:15-cv-03831-VC Document 58-5 Filed 10/12/17 Page 3 of 4
DECLARATION OF RYAN MCBRIDE 15-cv-03831-VC
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19. Based on the foregoing and the fact that I have been practicing for over three
years, I believe the hourly rate of $300.00 is a fair and reasonable hourly rate.
I declare under penalty of perjury, under the laws of the United States and the
State of California, that the foregoing is true and correct. Executed this 12th day of
October 2017, at Phoenix, Arizona.
By: /s/ Ryan McBride
Ryan McBride
Case 3:15-cv-03831-VC Document 58-5 Filed 10/12/17 Page 4 of 4
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HY
DE
& S
WIG
AR
T
San
Die
go, C
alifo
rnia
Robert A. Pastor v. Bank Of AmericaUnited States District Court District of ArizonaCase No.: 3:15-cv-03831-VC
PROOF OF SERVICE
I, David McGlothlin, declare as follows:
I am over the age of eighteen years and not a party to the case. I am employed in the County of Maricopa, State of Arizona, where the mailing occurs. My business address is 2633 E. Indian School Road, Suite 460, Phoenix, AZ 85016. I am readily familiar with our business’ practice of collecting, processing, and mailing of correspondence and pleadings for mail with the United States Postal Service.
On October 12, 2017, I served the foregoing document(s) described as:
• Notice of Motion and Motion for Attorneys Fees, Costs and Incentive Award• Memorandum of Points and Authorities in Support thereof• Supporting Declarations of Attorneys Abbas Kazerounian, Joshua Swigart, David
McGlothlin and Ryan McBride
On the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope as follows:
Joseph Duffy Bank of America FCRA Settlement,Morgan, Lewis & Bockius LLP P.O. Box 404023,300 S. Grand Avenue, Louisville, KY 40233-4023Twenty-Second FloorLos Angeles, CA 90071-3132
[X] BY MAIL, by placing a copy thereof in a separate envelope for each addressee named above, addressed to each addressee respectively, and then sealed each envelope and, with the postage fully prepaid, deposited each in the United States mail at Phoenix, Arizona in accordance with our business’ practice.
[ ] BY OVERNIGHT MAIL, by placing a copy thereof in a separate envelope for each addressee named above, addressed to each addressee respectively, and then sealed each envelope and, with the postage fully prepaid, deposited each in the Overnight delivery receptacle mail at San Diego, California in accordance with our business’ practice.
[ ] BY FACSIMILE, this document was transmitted by facsimile transmission from (619) 297-1022 and transmission was reported as complete and without error. A copy of the transmission report is attached to this affidavit.
[ X ] ELECTRONICALLY, this document was transmitted by the Internet from our office.
I declare under penalty under perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 12, 2017, at Phoenix, Arizona.
____/s/ David McGlothlin______David McGlothlin
______________________________________________________________________________________________________ Proof of Service
Case 3:15-cv-03831-VC Document 58-6 Filed 10/12/17 Page 1 of 1