in the united states district court for the western district

Transcription

Case 5:12-cv-05055-JLH Document 57-2
Filed 04/12/13 Page 1 of 13 PageID #: 574
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DONALD KEYS,
Plaintiff
v.
BUDGETEXT CORP.,
Defendant.
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Case No. 5:12-cv-05055-JLH
Hearing Date: June 4, 2013
Time: 10:00 AM
Judge: Hon. Jimm Larry Hendren
DECLARATION OF S. CHANDLER VISHER IN SUPPORT OF
MOTION FOR ATTORNEYS’ FEES
S. Chandler Visher states as follows:
1.
I am one of the attorneys for the plaintiff and the plaintiff class herein and if
called to testify I could competently give evidence concerning the matters stated herein.
QUALIFICATIONS OF COUNSEL
2.
I graduated from Brown University in 1967. I received a Juris Doctor degree
Summa Cum Laude from the University of Denver College of Law in 1970, finishing first in my
graduating class of 150. I served as Associate Editor on the Law Journal and received the
Foundation Press Award for Meritorious Law Journal Article.
3.
I was admitted to the Colorado Bar in 1970, the California Bar in 1972 and the
United States Supreme Court in 1973. I am also admitted to practice before the Ninth Circuit,
the Federal Circuit and in the Northern, Central and Eastern U. S. District Courts in California. I
am a member of the American Bar Association, the Bar Association of San Francisco and the
National Association of Consumer Advocates.
4.
From 1970 to 1974, except for 1971-72, I was an Associate at the Denver law
firm now known as Sherman & Howard. While there I assisted in a number of class action cases
and had principal responsibility for the class action Parrish vs. Sky Chefs, Inc. (U.S. Dist., D.
Colo., employment discrimination case alleging race discrimination in promotions under Title
1
VII resulting in an injunction in 1973).
5.
During 1971-72, I was the Associate Director of the Los Angeles Criminal Justice
Research Center.
6.
From 1974 to 1976 I was staff attorney with the Sierra Club Legal Defense Fund
and assisted in nationwide Clean Air Act litigation.
7.
From 1976 to 1980, I was an Assistant District Attorney with the Consumer
Fraud/White Collar Crime Unit of the San Francisco District Attorney's Office. My practice at
that office concentrated primarily on unfair business practice cases brought under §17200 and
§17500 of the Business and Professions Code seeking injunctive relief and restitution. I also
won convictions in a number of business criminal fraud cases after jury trial.
8.
Since 1980 I have been engaged in private practice as a solo practitioner. I have
an a-v rating from Martindale Hubbell. My practice since 1980 has continued to concentrate on
unfair business practice and class action litigation. Class action and unfair business practice cases
I have handled since 1980 as attorney for one or more of the plaintiffs include the following:
Beasley v. Wells Fargo National Bank (S. F. Superior Court No. 861555, class action unfair
business practice action pursuant to Business and Professions Code §17200 involving improper
credit card late payment and over limit fees, resulting in a jury verdict in 1989 of $5.2 million);
Biren v. California Federal Savings (Alameda Superior Court No. 542786-2, general public
unfair business practice action pursuant to Business and Professions Code §17200 involving use
of 360 day bank year resulting in a 1982 agreement to stop the unfair practice and distribution of
$15,000 to Consumers Union, Public Advocates and other organizations); Chadwick v. Crocker
National Bank (S. F. Superior Court No. 792521, class action unfair business practice action
pursuant to Business and Professions Code §17200 involving holds on out-of-state checks
resulting in a 1984 agreement to stop the unfair practice and leading to revisions in State and
Federal law regarding check holds); Long v. Coast Federal Savings (U. S. District Court, C. D.
al. No. CV-84-3562JMI, class action unfair business practice action pursuant to Business and
Professions Code §17200 involving single family home mortgage prepayment penalties, cited in
2
administrative regulations as one of the reasons more consumer oriented prepayment penalty
regulations were adopted); Spiegel v. The Robert A. McNeil Corporation (San Mateo Superior
Court No. 243666, class action investment fraud combined contract and unfair business practice
action pursuant to Business and Professions Code §17200 by limited partners involving
excessive charges by general partners resulting in a 1983 settlement on the day of trial for
$850,000); Sturdevant v. The Hibernia Bank (S. F. Superior Court No. 814105, class action
unfair business practice action pursuant to Business and Professions Code §17200 involving
improper credit card late payment and over limit fees in which defendant created a restitution
fund of $200,000 for the class in 1986); Miller v. Union Bank (Contra Costa Superior Court,
unfair business practice action involving improper charges by trustee of retirement plans in
which defendant agreed to refund all improper charges with interest in 1987); O'Malley v.
Midwest Pacific Financial, Inc. (San Diego Superior Court No. 582644, unfair business practice
action against financial institution involving failure to honor mortgage rate guarantees in which
defendant offered the class loans at the original rate); Kroloff v. First National Bank of
Wilmington (N.D. Cal. No. C882491TEH, class action unfair business practice action pursuant to
Business and Professions Code §17200 involving improper credit card late payment and over
limit and returned check fees in which defendant agreed to stop charging any late and over limit
charges and made refunds of overcharges); Tokay v. First Interstate Bancard (Alameda Superior
Court No. 615013-4, class action unfair business practice action pursuant to Business and
Professions Code §17200 involving improper credit card late payment and over limit and
returned check fees); Kilian v. Mt. Konocti Mutual Water Co. (Lake County Superior Court No.
22929, class action resulting in judgment after jury trial of $1.4 million, upheld on appeal in
1990); Harris v. Founders Title Co. (S. F. Superior Court No. 904974, class action unfair
business practices action for improper escrow charges resulting in 1991 in a common fund of
$4.9 million, $750,000 distributed to civic and charitable organizations, judgment upheld on
appeal); DeJesus v. Melody Toyota, Inc. (San Mateo Superior Court No. 360721, class action
unfair business practice action for overcharges on automobile repairs resulting in 1993 settlement
3
fund of $575,000); Waggener v. Television Signal Corp. (San Francisco Superior Court No.
946912, class action unfair business practice action for excessive Viacom late charges resulting in
1995 settlement reducing late charge by 15%); Lussier v. The Lucas Dealership Group (San
Mateo Superior Court No. 391224), unfair business practices suit for repair overcharges resulting
in confidential settlement after three weeks of trial in 1998; Pang v. Jani King of California, Inc.
(San Mateo Superior Court No. 396258) class action unfair business practice suit alleging
improper franchise practices settled in 1999 after appeal; Capers v. Pacific Bell Internet Services
(San Francisco Superior Court No. 318733), unfair business practice suit for improper DSL
billing practices resulting in refunds of more than $1.6 million to 20,000 class members and
distribution of more than $40,000 to charitable organizations in 2004; Clark v. Santa Barbara
Bank & Trust and Intuit, Inc. (San Francisco Superior Court No. CGC-04-427959), unfair
business practice suit for improper debt collection practices resulting in refunds of more than $2
million and distribution of more than $200,000 in cy pres relief in 2007; Briggs v. United States
(Northern District Calif. No. CV-07-5760-WHA), Little Tucker Act case claiming illegal offsets
resulting in settlement providing for $7.4 million relief in 2010 to about 7,000 veterans.
9.
I was attorney for the appellant in Russell v. United States, 661 F.3d 1371 (Fed.
Cir. 2011), which reversed the dismissal of a class action where the dismissal was based on an
offer to pay of plaintiff’s claim. I was one of the attorneys representing plaintiffs in California
Highway Patrol v. Superior Court (Allende) (2006) 135 Cal.App.4th 488, the opinion in which
defined the term “incident” as used in Government Code 53150 which paved the way for
settlements in Dubray v. Dublin (Alameda Superior Court Case No. 2002057128) and more than
two dozen other class actions in which I was co-counsel against California governmental entities
between 2006 and 2008, resulting in hundreds of thousands of dollars in refunds to class
members and stopping of illegal governmental cost collection practices. I was one of the
counsels for the National Association of Consumer Advocates which was an amicus in Donovan
v. RRL Corp. (2001) 26 Cal.4th 261, which established a newspaper automobile price
advertisement as a contract offer.
4
10.
I have practiced in the area of plaintiff's class action litigation for more than 40
years and more than 95% of my practice is devoted representation of plaintiffs in consumer class
actions.
11.
I have never been found inadequate to serve as class counsel, and my
qualifications and competence in doing so have never been contested.
WORK ON THIS CASE
12.
I kept contemporaneous records of my time in this case using time-keeping
computer software. The software allows me to select, from a list of cases on which I have
recently worked, the case I am working on at the moment. The computer keeps track of my time
until I tell it to stop or indicate that I have switched to another case. Once I have started the
timer for a case on a particular day I am able to switch the timer to whichever case I am working
on at the moment, with the time starting and stopping for each case as appropriate and adding to
the time for that case previously recorded. New time entries are made each day for each case I
work on during the day, so that each time entry includes only the work on the case for one day.
The result is a very accurate record of the actual amount of time spent. For each case for which I
am keeping time in a day I make a descriptive text entry that can be amended as the day
progresses, although the software only allows about 90 characters per entry. Each entry is also
assigned a work category, generally connected to the aspect of the case, such as discovery or
pleadings, on which I am working. As I typically work on more than one case each day and
often am required by telephone calls or emails requesting immediate action to change from one
case to another and then back again, the system is much more precise than the paper entry time
keeping system that I used in the early years of my law practice.
13.
I exercise billing judgment to avoid unnecessary time charges in two ways. First,
each day one of the timer options I have is “administrative time,” to which I can switch the
computer timer whenever I believe that the activity in which I am engaged, although related to a
case, should not be billed. Second, each month I prepare and review a report of my time spent
on each case during the month. Part of the review process involves correcting errors and
5
exercising billing judgment with respect to time that may be excessive or unnecessary. As most
of my cases last several years, I have found that an immediate and then monthly review of my
time provides the most effective way of ensuring the accuracy and appropriateness of the time
recorded. The only disadvantage of the system I use is that, because unbillable time from all
cases and of all types is recorded as “administrative” time, and I know in total how much
administrative time has been spent in each month, I do not know how much of that
administrative time was recorded in connection with each case. The monthly edits and
corrections could be compared to the original entries, but this would be a time consuming and
laborious task.
14.
A true and correct copy of all of the time spent by attorneys in my office for
which compensation is sought in this case is attached hereto as Exhibits A. Except for 3.5 hours,
all of the time on Exhibit A is mine. The 3.5 hours that is not mine was performed by Deborah
A. de Lambert, a graduate of the University of California at Santa Barbara and the University of
California, Berkeley, law school, who graduated from law school in 1984, was admitted in
California that year and worked under my supervision.
15.
The 107.67 hours included in Exhibit A are for the period from the beginning of
work on the case on November 1, 2011 through March, 2013. In April, 2013, I have spent 17
hours working on the fee application, brief in support and supporting declarations. I expect to
spend another five hours on the case through final settlement completion.
16. My office hourly rates are adjusted annually. My office rates have been accepted by
the federal district court in Northern District of California and I have been paid more than $1
million using those rates in the last three years. My office hourly rate in 2011 was $690; in 2012
it was $725 and in 2013 it is $760. Ms. de Lambert’s current office rate for work on my cases is
$550; in 2012 when the work she did on the case was performed, her hourly rate was $520.
17.
When I took this case on a contingent fee basis I expected to be paid at least my
normal office billing rate, now $760 per hour, and, depending on results, an enhancement of that
rate based on the risk of taking the case on a contingent basis.
6
18.
I recently renewed my lease for office space, in which all of the San Francisco
based attorneys who have worked on this case work. The new lease starts at $51 per square foot
per year and increases each year, with additional costs passed through when building
maintenance costs increase. On April 9, 2013, I looked on Loopnet.com, a commercial office
space listing service, for office space in Fayetteville, Arkansas. Based on the pictures and
descriptions of office space available in Fayetteville, it appears that high quality office space
suitable for a law practice is available there for between $13 and $19 per square foot per year.
19.
My standard form of representation agreement, quoted in paragraph 11 of Mr.
Shulman’s declaration in support of this fee motion, provides that fees may be recovered both
from the defendant and the class recovery. Several class members besides the plaintiff reviewed
the fee agreement but, for fear of reprisals, did not want to be named plaintiffs. None of these
other class members expressed any reservations about the fee payment provision in the
representation agreement. I believe that most, if not all, of the class members would have been
willing to agree to the fee payment portion of the representation agreement, even though they
would not have wanted to be identified as plaintiffs for fear of reprisals, as there are only a few
companies in the used textbook business and employees who cause “trouble” are likely to be
blackballed.
20. On October 26, 2011, just after members of the class herein were terminated,
Budgetext sent class members an email that included an explanation “from our attorneys” as to
why they were “not entitled to WARN Act” benefits. At true and correct copy of this email to
the class is attached hereto as Exhibit B.
I declare under penalty of perjury that the foregoing is true and correct. Executed April
11, 2013, at San Francisco, California.
/s/ S. Chandler Visher
S. Chandler Visher
7
CERTIFICATE OF SERVICE
I, Charles M. Kester, attorney for Plaintiff Donald Keys and all others similarly situated, do
hereby certify that I have this day electronically filed the above and foregoing document with the
Clerk of the Court using the CM/ECF System, which will send immediate notification of such
pleading to all parties.
/s/Charles M. Kester
8
Case 5:12-cv-05055-JLH
Document
Filed
04/12/13
Page 9 of 13 PageID #: 582
Donald Keys,
et al. v. 57-2
BudgeText
Corp.
(5:12-cv-05055-JLH)
Date
Name
Time
Notes
Case Play & Strategy
11/01/2011
Chandler Visher
3.18
Budgetext research; phone call to [class member, name
redacted] re facts
11/02/2011
Chandler Visher
0.47
Continue to research and review WARN law
11/04/2011
Chandler Visher
2.90
Review Budgetext termination letters and research thereon
11/07/2011
Chandler Visher
0.33
Phone call [name redacted] re Budgetext case
11/08/2011
Chandler Visher
3.43
Meet with Harry Shulman regarding merits and tactics; phone
call [class member name redacted]; memo thereon
11/09/2011
Chandler Visher
0.88
Review labor department materials on WARN
11/10/2011
Chandler Visher
2.82
Phone call [class member name redacted]; phone call [name
redacted]; phone call Keys re facts
11/14/2011
Chandler Visher
3.88
Prepare memo re WARN Act legal theories; phone call Coles
at DOL
11/15/2011
Chandler Visher
0.10
Review email on Budgetext theories
11/17/2011
Chandler Visher
1.45
Meet with Shulman re merits; email client; DOL Coles email
11/18/2011
Chandler Visher
1.62
consider strategy; meet with Shulman thereon; email client
12/06/2011
Chandler Visher
0.60
contact [class member name redacted] and email to her
12/09/2011
Chandler Visher
0.32
phone call [name redacted] class member
12/14/2011
Chandler Visher
0.25
review email re plant closing date and consider necessary
action
12/15/2011
Chandler Visher
1.62
meet with Harry Shulman re complaint; review draft complaint
12/16/2011
Chandler Visher
0.55
final review of complaint; meet with Harry Shulman re
customer sereviewice reps issue
01/03/2012
Chandler Visher
0.25
misc. emails re payments from Budgetext over weekend
01/09/2012
Chandler Visher
0.17
review answer and related email
01/10/2012
Chandler Visher
0.10
prepare email re answer
01/24/2012
Chandler Visher
1.20
phone call [class member name redacted] re developments;
review stipulation of facts; consider impact of purchase on
application Act
01/27/2012
Chandler Visher
0.15
review reassignment order; confer w/Harry Shulman thereon
02/13/2012
Chandler Visher
0.28
meet with Harry Shulman re change venue
02/27/2012
Chandler Visher
0.18
prepare email re briefs and review reply
03/23/2012
Chandler Visher
0.30
confer w/Harry Shulman re transfer order
Exhibit A to Visher Declaration
Page 1 of 4
Document
Filed
04/12/13
Donald Keys,
et al. v.57-2
BudgeText
Corp.
(5:12-cv-05055-JLH)
Date
Name
Time
Notes
27.03
Case plan & Strategy
Total
Damages
11/05/2012
Chandler Visher
4.80
review and analysis damages data from employment records
11/06/2012
Chandler Visher
2.93
consider vacation pay and benefits damages issues meet with
Harry Shulman thereon and email thereon
11/13/2012
Chandler Visher
3.25
calculate damages including employer contributions
spreadsheet
10.98
Damages Total
Fee Application
12/19/2012
Chandler Visher
1.42
begin work on fee application
01/07/2013
Chandler Visher
5.43
review draft agreement and proposed edits; email thereon;
meet with Harry Shulman thereon; research of fee issues
01/15/2013
Chandler Visher
0.20
review attorney fees Arkansas case law
01/25/2013
Chandler Visher
2.32
fee petition research; review settlement language
02/06/2013
Chandler Visher
0.13
email on attorney fee from class issue
02/26/2013
Chandler Visher
1.10
phone call fee expert Pearl and prepare materials for his use
and email thereon
02/27/2013
Chandler Visher
0.10
review attorney fee motion
03/13/2013
Chandler Visher
0.98
work on fee petition and confer with HS thereon
review timekeeping issues from HS
03/14/2013
Chandler Visher
0.92
03/15/2013
Chandler Visher
0.25
review proposed offer on atty fees
email re fee question
03/18/2013
Chandler Visher
0.03
review changes to expert dec; rv email re Arkansas expert
03/22/2013
03/26/2013
Chandler Visher
Chandler Visher
1.22
0.77
meet with Harry Shulman re response to defendant's fee
proposal; review defendant's fee proposal
review counteroffer options
03/27/2013
Chandler Visher
0.28
email Harry Shulman re fee issues
03/28/2013
Fee Application Total
Chandler Visher
0.20
15.35
Page 2 of 4
Document
Filed
04/12/13
Donald Keys,
et al. v.57-2
BudgeText
Corp.
(5:12-cv-05055-JLH)
Date
Name
Time
Notes
Pleadings: Class
Certification
08/23/2012
Chandler Visher
0.50
consider impact on class certification of delay requested by
defendant on motion judgment brief; research local rules
09/25/2012
Chandler Visher
0.68
email re class certification
09/27/2012
Chandler Visher
10.32
09/28/2012
Chandler Visher
0.98
edit draft class certification brief; meet with Harry Shulman
thereon; single place employment vs. affected employee
research
10/19/2012
Chandler Visher
0.77
review class certification reply brief
meet with Harry Shulman re class certification issues; review
class certificationificatino draft brief
13.25
Pleadings:Class
Certification Total
Demurrer
08/09/2012
Chandler Visher
1.00
review motion judgment on pleadings and draft response
08/10/2012
Chandler Visher
4.10
continue review draft answer brief; meet with Harry Shulman
thereon
08/13/2012
Chandler Visher
3.10
continue final edits of opposition to motion judgment on
pleadings
08/14/2012
Chandler Visher
5.27
cont edit draft opp motion judgment
08/15/2012
Chandler Visher
9.57
research on 2102(d) issues; cont review draft opp motion
judgment
08/16/2012
Chandler Visher
9.50
final editing of response motion judgment; review cases found
in research
08/16/2012
Deborah de Lambert
3.50
edit and revise draft opposition to motion for judgment on
pleadings
08/17/2012
Chandler Visher
4.00
final review of motion response papers
11/16/2012
Chandler Visher
0.27
review opposition to interloc appeal
40.30
Pleadings:Demurrer Total
Settlement
12/03/2012
Chandler Visher
0.72
review settlement demand and email thereon
12/04/2012
Chandler Visher
0.37
incentive issue and email
12/10/2012
Chandler Visher
1.52
review settlement letter from defendant; consider response
12/11/2012
Chandler Visher
0.53
meet with Harry Shulman re defendant settlement figures;
review letter to defendant
12/14/2012
Chandler Visher
0.42
review latest proposal; phone call Harry Shulman
12/18/2012
Chandler Visher
0.33
review email
3/11/2013
Chandler Visher
Settlement Total
0.30
4.18
review settlement order and related email
Page 3 of 4
Document
Filed
04/12/13
Donald Keys,
et al. v.57-2
BudgeText
Corp.
(5:12-cv-05055-JLH)
Date
Grand Total
Name
Time
Notes
111.10
111.10
Office Total
107.60
S. Chandler Visher Total
3.50
Deborah de Lambert Total
Page 4 of 4
/Budgetexr
Corporation
From: Robert Mefford
Sent: Wednesday, October 26, 2011 3:03 PM
To: Mark S. Bond; Brent Rust; Mark Hughes; Doug Stahl; Augie Montejo; Shane Garritson; Matt Robbins;
Larry Sills; Dolly Wilcoxson; Ryan Levine; John May; Paul Zaremski; Darryl Cotman; AI Meyers; William
Love; Brian Kinky; Stewart Balshem; Matt Caine; Curtis Durben; Don Dye; Bob Ferguson; Jerry Mohr;
Dave Mulberger; Frank Saidis; Ric Wails; Katie Absher; Richard Boyer; Ed Burton; Rick Roberts; Ed
Navarro; Wesley Daniels; Terri Gaines; Fernando Figueiredo; Donald Keys; Erick Cabrera; Shep Anders
([email protected])
Cc: John Acoach; Derek Brewer; James Camp
Subject: WARN Act clarification
Ladies and Gentlemen,
The email below from our legal counsel is to respond to your concerns regarding the WARN Act. Hope
this clears up any misunderstanding .
•
BudgetextBob Mefford
We have received a number of email from salespeople seeking an explanation as to why they are not
entitled to a WARN notice in connection with the layoffs on Monday. The WARN Act is a complicated
statute, but it is clear that the layoffs on Monday are not covered by the Act, as explained below.
The WARN Act applies to a layoff which 1) affects a minimum of SO employees (excluding part-time
employees) 2) within a thirty day period 3) at a single site of employment. Where, as here, the layoff
does not constitute a plant closing, there is a third requirement for coverage: the layoff must affect at
least 33% of the employees at the single site of employment.
The layoff on Monday does not meet the requirements for coverage. The group laid off Monday consists
of only 41 employees, dispersed around the country. Even if all of those employees were attributed to
the Fayetteville facility - which would not be proper under the Act - not enough employees were laid off
to trigger WARN. To begin with, less than SO employees were laid off. However, even if SO employees
had been laid off, WARN would not be triggered because the 33% requirement would not be met.
The WARN Act has an "aggregation" provision under which layoffs in a 90 day period which separately
would not trigger the Act may in certain circumstances be aggregated to constitute a WARN event, but
that provision does not apply here. The layoff in Fayetteville which will occur in approximately 60 days
IS covered by WARN, and the people who will be affected by that layoff have received WARN
notices. The aggregation provision does not allow events that are NOT covered by WARN, such as the
layoff on Monday, to be aggregated with events that ARE covered by WARN.
Budgetext 1936 North Shiloh Drive
I P.O. Box 1487
Fayetteville, Arkansas 72702-1487
phone
479.684.3300
I fax 479.684.3403 I web www.budgetext.com
Exhibit B to Visher Declaration

in the united states district court for the western district

Transcription

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