Joseph N. Kravec, Jr. (pro hac vice) FEINSTEIN DOYLE PAYNE

Transcription

Case5:08-cv-00868-RMW Document592 Filed03/05/15 Page1 of 4
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Joseph N. Kravec, Jr. (pro hac vice)
FEINSTEIN DOYLE PAYNE
& KRAVEC, LLC
429 Forbes Avenue, 17th Floor
Pittsburgh, PA 15219
Tel: (412) 281-8400
Fax: (412) 281-1007
E-mail: [email protected]
CO-LEAD TRIAL COUNSEL AND
SETTLEMENT CLASS COUNSEL
Lynn Lincoln Sarko (pro hac vice)
Gretchen Freeman Cappio (pro hac vice)
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Tel: (206) 623-1900
Fax: (206) 623-3384
E-mail: [email protected]
[email protected]
*Additional Plaintiff’s Counsel
on signature page
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IN THE UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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FELTON A. SPEARS, JR. and SIDNEY ) Case No. 5-08-CV-00868 (RMW)
SCHOLL, on behalf of themselves and all others )
) DECLARATION OF MICHAEL D. BRAUN
similarly situated,
) IN SUPPORT OF MOTION FOR AWARD OF
) ATTORNEY’S FEES, COSTS AND CLASS
Plaintiffs,
) REPRESENTATIVE SERVICE AWARD AND
) MOTION FOR FINAL APPROVAL OF
vs.
) SETTLEMENT
)
) Honorable Ronald M. Whyte
FIRST AMERICAN EAPPRAISEIT
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(a/k/a eAppraiseIT, LLC),
) Date: April 24, 2015
a Delaware limited liability company,
) Time: 9:00 a.m.
) Courtroom: 6, 4th Floor
Defendant.
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Declaration of Michael D. Braun in Support of Motion for Award of Attorney’s Fees, Costs and Class Representative
Service Award and Motion for Final Approval of Settlement; Case No. 5-08-CV-00868 (RMW)
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I, Michael D. Braun, declare as follows:
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I am a principal with the Braun Law Group, P.C., counsel for Plaintiff Felton A. Spears,
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Jr. in the above captioned action. I am a member of the California Bar and am admitted to practice in
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this District.
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2.
This declaration is submitted in support of Plaintiff’s Motion for Award of Attorneys’
Fees; Costs and Class Representative Service Award.
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I was admitted to the California Bar in 1993, the District of Columbia Bar in 1996, the
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New York Bar in 1999 and the Bar of England and Wales in 2006. I am a member in good standing of
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these bars.
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4.
I received a Bachelor in Arts degree from the University of California Los Angeles, a
Juris Doctor from Loyola Law School and a Master of Laws from the London School of Economics.
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I have been employed as a lawyer since graduating and have been in practice for more
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than 20 years. My entire legal career has been spent as a Plaintiff’s attorney prosecuting complex and
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class action litigation. I began as an associate with Stull Stull & Brody (“SSB”), a boutique class action
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firm specializing in the prosecution of securities class actions. I spent approximately 10 years with
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SSB, the last four of which I was the managing attorney of the Los Angeles office which had four
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attorneys, two secretaries, a paralegal and assorted clerical staff. In 2004, I left SSB to start the Braun
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Law Group, where I have been since. My practice remains exclusively the prosecution of class actions.
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6.
Over my career, I have served as lead or liaison counsel in well over a hundred cases. I
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have been named Super Lawyer by my peers in Los Angeles Magazine every year since 2005. I was
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also fortunate enough to be named a named Lawyer of the Year (“Clay Award”) in 2000 by California
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Lawyer Magazine for my work on Small v. Fritz Co., 30 Cal. 4th 167 (April 7, 2003).
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7.
I specialize in the prosecution of class litigation and have extensive experience in
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consumer class action lawsuits that are similar in size, scope and complexity to the present case. A
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copy of my firm’s resume is attached hereto as Exhibit A.
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8.
The schedule attached hereto as Exhibit B is a summary of the time expended on this
litigation by my firm from inception through February 19, 2015. The total number of hours spent by
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my firm prosecuting this action is 5,940.37. The total lodestar to date for my firm is $2,779,603.50.
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My hourly rate is $675 per hour. My associate Chelsea Maehara is a first year attorney and her hourly
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rate is $240. The schedule was prepared from contemporaneous, daily time records prepared and
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maintained by my firm. The hourly rates are the same as the usual and customary hourly rates charged
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for services in other actions.
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Attached to declaration as Exhibit C is a summary of expenses incurred in the
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prosecution of this matter totaling $52,021.02. The summary was prepared from records prepared and
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maintained by my firm.
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My hourly rate reflects my skill and experience as a litigator and is commensurate with
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the rates charged for similar services by lawyers of reasonably comparable skill, experience and
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reputation in this District.
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In assessing a reasonable hourly rate, courts consider the prevailing market rate in the
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community for similar services by lawyers of reasonable comparable skill, experience, and reputation.
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Blum v. Stenson, 465 U.S. 886, 895-96, 104 S. Ct. 1541, 79 L. Ed. 2d 891 and fn. 11 (1984). The
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relevant community for purposes of determining the prevailing market rate is generally the “forum in
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which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008).
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“Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the community,
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and rate determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are
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satisfactory evidence of the prevailing market rate.” United Steelworkers of America v. Phelps Dodge
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Corp., 896 F.2d 403, 407 (9th Cir. 1990); Ketchum v. Moses, 24 Cal. 4th 1122, 1140 (Cal. 2001).
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As detailed above, my practice is dedicated to the prosecution of class actions. The
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majority of my cases are litigated in California, primarily in the Central and Northern Districts. My
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hourly rates have been routinely approved in both districts. See e.g., In re Indymac ERISA Litigation,
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(CDCA) CV 08-04579 DDP (VBKx), Final Order & Judgment, (Dkt. No. 137); Eisenstat v. Ken's
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Foods, Inc., (CDCA) 1 0-CV -0251 0-SVW (PLAx), Final Order Approving Settlement & Judgment of
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Dismissal With Prejudice, (Dkt. No. 37); Wool v Sitrick, (CDCA) 10-CV-02741 JHN (PJWx), Order
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Granting in Part Plaintiffs' Motion for Attorney's fees and Expenses, (Dkt. No. 160); In Re Cooper
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Companies Derivative Litig., (CDCA) CV 06 00300 CJC (RNB), (Dkt. No. 110); In re Google Buzz
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Privacy Litigation, (NDCA) 10-CV-00672 JW, Amended Order Granting Final Approval of Class
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Action Settlement; Approval of Cy Pres Awards; and Awarding Attorney Fees, (Dkt. No. 129).
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In demonstrating the reasonableness of hourly rates, it is also appropriate to submit the
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affidavits of practitioners from the same forum with similar experience to establish the reasonableness
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of the hourly rate sought. Mendenhall v. Nat'! Transp. Safety Bd., 213 F.3d 464, 471 (9th Cir. 2000)
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(holding that affidavits of four practitioners in the community were sufficient to establish reasonable
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rate). Each of the following cases affirmed fee awards commensurate with the hourly rates sought in
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this case. The declarations submitted by each of the practitioners similarly refer to additional cases and
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support for the hourly rates. See e.g. Sugarman v. Ducati N. Am., Inc., Case No. 5:10-cv-05246, 2012
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U.S. Dist. LEXIS 3961 (N.D. Cal. Jan. 12, 2012) (Dkt. No. 81, Declaration of Eric Gibbs); Milano v.
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Interstate Battery Sys. of Am., Inc., Case No. C 10-02125 , 2012 U.S. Dist. LEXIS 93192 (N.D. Cal.
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July 5, 2012)(Dkt. No. 101); Wren v. RGIS Inventory Specialists, Case No. 06-cv-05778 JCS, 2011
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U.S. Dist. LEXIS 38667 (N.D. Cal. Apr. 1, 2011)(Dkt. Nos. 876 and 877, Declarations of James
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Finberg and Jonathan Gertler, respectively); Steinfeld v. Discover Financial Service, Case No. 3:12-cv-
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01118-JSW, Dkt No. 64-1 (Approving $725 for 1993 graduate); Walsh v. Kindred Healthcare, Case
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No. No. C 11-00050 JSW, 2013 U.S. Dist. LEXIS 1 7 6319, (N.D. Cal. Dec. 16, 2013 )(Exhibit J,
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Declaration of Richard M. Pearl opining on current and historical billable rates).
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In light of my experience and knowledge of the facts of this case, it is my belief that the
Settlement is fair, reasonable and adequate given the risks of trial and EA’s insolvency.
I declare under penalty of perjury of the laws of the United States of America that the foregoing
is true and correct.
Executed this 5th day of March, 2015, Los Angeles, California.
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s/Michael D. Braun
Michael D. Braun
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Case5:08-cv-00868-RMW Document592-1 Filed03/05/15 Page1 of 5
EXHIBIT A
10680 W. Pico Boulevard, Suite 280
Los Angeles, CA 90064-7202
Tel 310-836-6000
Fax 310-836-6010
[email protected]
FIRM BIOGRAPHY
The Braun Law Group, P.C. was founded in 2004 and specializes in the prosecution of
complex class actions across a variety of legal disciplines throughout the United States.
MICHAEL D. BRAUN
Mr. Braun has represented shareholders and consumers in class action litigation for the
past 19 years and has served as lead or liaison counsel in well over a hundred cases. He
was named Lawyer of the Year in 2000 by California Lawyer Magazine, and a Super
Lawyer from 2005-2015 by Los Angeles Magazine. Mr. Braun is a graduate of the
London School of Economics, Loyola Law School, the Hague Academy of International
Law and the University of California at Los Angeles. Mr. Braun is a member of the
California, New York and District of Columbia bars, and is also licensed as an English
Solicitor.
REPRESENTATIVE SECURITIES CASES
Small v. Fritz Co., Supreme Court of California, 30 Cal. 4th 167 (April 7, 2003) (created
new law in the state of California for shareholders that held shares in detrimental reliance
on false statements made by corporate officers. The decision was widely covered by
national media including The National Law Journal, Los Angeles Times, New York
Times, and the New York Law Journal, among others and was heralded as a significant
victory for shareholders.
In re Apria Healthcare Group Securities Litigation, Master File No. 797060 (Superior
Court of California, Orange County) (recovery of $42 million)
In re Complete Management Inc. Sec. Litig., Master File No. 99 Civ. 1454 (NRB)
(S.D.N.Y.) (recovery of $11.0 million)
In re Cybermedia, Inc. Securities Litigation, Master File No. 98-1811CBM (Ex) (C.D.
Ca.) (recovery of $10.5 million)
In re Stratosphere Securities Litigation, Master File No. CV-S-96-00708-PMP (RLH) (D.
Nev.) (recovery of $9 million)In re Ascend Communications Securities Litigation, Case
No. 97-9376 MRP (AN) (C.D. Ca. 2002) (recovery of $5.45 million)
PAGE 2
In re Brightpoint Securities Litigation,(S.D. Indiana 2003) (recovery of $5.5 million)
In re Spectrian Corp. Securities Litigation, Master File No. C-97-4672-CW (N.D. Ca.)
(recovery of $2.975 million)
In re 2TheMart.com Securities Litigation, 114 F.Supp 2d 955 (C.D.Ca. 2002) (recovery of
$3.0 million)
In re Irvine Sensors Securities Litigation, 2003 U.S. Dist. LEXIS 18397 (C.D.Ca. 2003)
(recovery of $3.5 million)
In re Metris Companies Securities Litigation, Civil Action No. 02-CV-3677 (D.
Minn)(recovery $7.5 million)
REPRESENTATIVE CONSUMER CASES
Outten, et al v. American InterContinental University, Inc., Case No. BC318199 (Los
Angeles Superior Court 2004)
Stransky v. Bank of America Corporation, Case No. BC319261 (Los Angeles Superior
Court 2004)
Harrell v. Philips Electronics North America Corporation, Case No. (Los Angeles
Superior Court 2004)
Nilsen, et al. v. Brooks Institute of Photography, et al., Case No. 1165597 (Santa Barbara
Thurston, et al. v. Brooks College, Ltd., Case No. NC036756 (Los Angeles County
Goyette, et al. v. Capital One Bank, et al., Case No. CV 05-3458 RGK (CDCA 2005)
Frey v. Allied Domecq Spirits and Wine Americas, Inc., Case No. CV05-5216 CAS
(C.D. Cal. 2005)
Schafer v. Dell Inc., Case No. CGC-06-457335 (San Francisco Superior Court 2006)
Vizzi v. Mitsubishi Motors North America, Inc., Case No. SACV 08-650 JVS
(C.D. Cal 2010)
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Baker V. Valley Presbyterian Hospital, Case No. BC 409505 (Los Angeles County
Eisenstat v. Ken’s Foods. Inc., Case No. CV 10-2510 SVW (C.D. Cal. 2010)
Zeisel v. Diamond Foods, Inc., Case No. CV 10-1192 (N.D. Cal. 2011)
Vought v. Bank of America, Case No. 2:10-cv-02052-MPM-DGB (C.D. Ill. 2010)
Larsen v. Trader Joe’s Co. Case No. CV-11-5188-SI (N.D. Cal. 2011)
Thurston v. Bear Naked Inc., Case No. 11-cv-02890-H (BGS) (S.D. Cal. 2011)
Astiana v Kashi Co., Case No. 11-cv-1967-H (BGS) (S.D. Cal 2011)
NOTEWORTHY REPORTED DECISIONS
Astiana v. Ben & Jerry's., 2013 U.S. Dist. LEXIS 177058, (N.D. Cal. Dec. 17, 2013)
Thurston v. Bear Naked, Inc., 2013 U.S. Dist. LEXIS 151490, (S.D. Cal. July 30, 2013)
Ubaldi v. SLM Corp., 2013 U.S. Dist. LEXIS 109877, 1, (N.D. Cal. Aug. 5, 2013)
Larsen v. Trader Joe's Co., 2013 U.S. Dist. LEXIS 3602 (N.D. Cal. Jan. 9, 2013)
Colucci v. ZonePerfect Nutrition Co., 2012 U.S. Dist. LEXIS 183050 (N.D. Cal. 2012)
Astiana v. Dreyer's Grand Ice Cream, 2012 U.S. Dist. LEXIS 101371 (N.D. Cal 2012)
Spears v. First Am. Eappraiseit, 2012 U.S. Dist. LEXIS 58077 (N.D. Cal. 2012)
Zeisel v. Diamond Foods, Inc., 2011 U.S. Dist. LEXIS 60608 (N.D. Cal. 2011)
Astiana v. Ben & Jerry's Homemade, 2011 U.S. Dist. LEXIS 57348 (N.D. Cal. 2011)
Barrer v. Chase Bank, USA, N.A., 2011 U.S. Dist. LEXIS 1111 (D. Or. 2011)
Vought v. Bank of Am., NA, 2010 U.S. Dist. LEXIS 114159 (C.D. Ill. 2010)
Zeisel v. Diamond Foods, Inc., 2010 U.S. Dist. LEXIS 141941 (N.D. Cal. 2010)
Barrer v. Chase Bank United States, N.A., 566 F.3d 883 (9th Cir. Or. 2009)
PAGE 4
Baghdasarian v. Amazon.Com, Inc., 258 F.R.D. 383 (C.D. Cal. 2009)
Daghlian v. DeVry Univ., Inc., 461 F. Supp. 2d 1121 (C.D. Cal. 2006)
In re Irvine Sensors Corp. Secs. Litig., 2003 U.S. Dist. LEXIS 18397 (C.D. Cal. 2003)
Small v. Fritz Companies, Inc., 30 Cal. 4th 167 (Cal. 2003)
In re Complete Mgmt. Sec. Litig., 153 F. Supp. 2d 314 (S.D.N.Y. 2001)
In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955 (C.D. Cal. 2000)
Sakhrani v. Brightpoint, Inc., 78 F. Supp. 2d 845 (S.D. Ind. 1999)
EXHIBIT B
Braun Law Group Hours
Phase of Litigation
(Mo/Yr to Mo/Yr)
And Citation to Brief in Support of Motion For Attorney’s Fees and
Costs Discussing Phase
Pre-Complaint Phase (¶II(A)) - (11/07 to 02/08)
Pre-Complaint Investigation and Initial Pleadings Preparation.
Plaintiffs’ Counsel
The Braun Law Group
Firm Time
M. Braun - 25.86
L. Molinar - 27.0
Firm Total Hrs. – 52.86
First Motions to Dismiss Phase (¶II(A)) - (03/08 to 03/09)
First Amended Complaint (“FAC”); Motions to Dismiss FAC; Motions to
Transfer; Plaintiffs’ Motions to Stay and for Jurisdictional Discovery;
One Set of Plaintiffs’ Requests for Production of Documents.
M. Braun - 58.78
L. Molinar - 10.45
Second Motions to Dismiss Phase (¶II(A)) - (04/09 to 08/09)
Second Amended Complaint (“SAC”); Motions to Dismiss SAC.
M. Braun - 59.68
First Class Certification Motion Phase (¶II(B)) - (09/09 to 06/10)
Exchange of Approximately 4.7 Million Pages of Documents and
Ongoing Document Review; Named Plaintiffs’ Depositions; EA’s Motion
for Interlocutory Appeal; Plaintiffs’ First Motion to Certify Class; Two
Sets of EA’s Requests for Production of Documents and Three Sets of
EA’s Interrogatories.
M. Braun - 407.22
A. Azarmsa – 71.50
B. Chang – 74.00
C. Peters – 71.50
A. Toumajan – 74.00
Second Class Certification Motion Phase (¶II(B)) - (07/10 to 04/12)
Production of Approximately 20,000 Pages of Documents (Including
Expert Discovery) and Ongoing Document Review; Plaintiffs’ Second
Motion to Certify Class; Five Plaintiffs’ Class Certification Expert
Reports and One EA Class Certification Expert Report; Class-Related
Expert Discovery; Depositions of Two Plaintiffs’ Experts and One EA
M. Braun - 322.90
Table of BLG Hours - Spears, et al. v. First American eAppraiseIT, Case No. 08-0868 (RMW)
Expert; Two Sets of Plaintiffs’ Requests for Production and One Set of
Plaintiffs’ Interrogatories; Two Sets of EA’s Interrogatories.
Merits Discovery Phase I (¶II(C)) - (05/12 to 5/13)
Production of Approximately 3,000 Pages of Documents and Ongoing
Document Review; EA’s Motion to File Third Party Complaint Against
FDIC; Plaintiffs’ and EA’s Cross-Motions for Judgment on the Pleadings;
Subpoenas Served on Seven Third Parties; One Set of Plaintiffs’ Requests
for Production of Documents and Two Sets of Plaintiffs’ Requests for
Admission; Three Sets of EA’s Requests for Production of Documents,
One Set of EA’s Requests for Admission and Three Sets of EA’s
Interrogatories.
M. Braun – 119.28
B. Halen - 514.00
E. Rabenold - 346.50
Merits Discovery Phase II (¶II(D)) - (06/13 to 12/13)
Production of Approximately 412,000 Pages of Documents Including
Chase’s Production of Loan Files and Spreadsheets and Ongoing
Document Review; Depositions of 19 EA and WMB Executives,
Employees and Former Employees; Depositions of Three Third Parties;
Additional Discovery of Third Party Chase; Two Sets of Plaintiffs’
Requests for Production and One Set of Plaintiffs’ Interrogatories;
Plaintiffs’ and EA’s Supplemental Discovery Responses and Disclosures.
M. Braun – 128.45
Y. Francus - 352.15
B. Halen - 389.15
Firm Total Hrs. – 1,090
Expert Discovery Phase I (¶II(E)) - (01/14 to 05/14)
Production of Approximately 2,700 Pages of Documents Including Chase
Spreadsheets and Expert Discovery and Ongoing Document Review; Trial
Expert Reports, Supplemental Reports and Expert Discovery from 12
Plaintiffs’ Experts; One Set of Plaintiffs’ Requests for Production of
Documents From EA’s Experts; EA’s Formal and Informal Requests for
Expert Discovery.
M. Braun - 115.50
Y. Francus - 92.25
B. Halen - 311.50
Dispositive Motions and Expert Discovery Phase II (¶II(E-F)) –
(06/14 to 09/14)
Motions for Summary Judgment, EA’s Motion to Decertify Class,
Plaintiffs’ Motion to Bifurcate;
Production of Approximately 35,000 Documents Including Expert
Discovery and EA’s Production From FDIC Action; EA’s Motion to
Strike Expert Reports; Trial Expert Reports and Supplemental Reports of
Six EA Experts; Expert Discovery and Depositions of 12 Plaintiffs’
Experts and 6 EA’s Experts.
M. Braun - 659.00
C. Maehara – 180
Y. Francus - 236.15
B. Halen - 230.25
Firm Total Hrs. – 1,419.9
Trial Preparation and Settlement (¶II(G and H)) - (10/14 to 10/14)
Plaintiffs’ 18 Motions in Limine, and EA’s 11 Motions in Limine;
Deposition and Discovery Designations, Witness Lists, Stipulated Facts,
Jury Instructions and Joint Pretrial Statement; Two Mediations
M. Braun - 262.00
C. Maehara – 180
Y. Francus 21.75
B. Halen 26.50
E. Rabenold 20.50
Post-Settlement Phase I - (Actual 11/14 to 02/15)
Motion for Preliminary Approval; Chase Discovery Cost Dispute;
Settlement Administration; Motion for Final Approval.
M. Braun - 10.0
Firm Total Hrs. – 10
Post-Settlement Phase II - (Estimated 03/15 to Conclusion)
Final Settlement Administration.
Firm Total Hrs. – 0
BLG TOTAL HOURS - 5,940.37
EXHIBIT C
MIKE BRAUN EXPENSE SUMMARY
Description
Amount
Attorney Service
$2,144.04
Computer
$406.58
Copy/Print
$4,283.02
Expert
$827.70
Filing / Court Fees
$46.00
Investigation
$7.84
Lexis
$30,178.86
Other
$2,798.82
Overnight Service
$1,216.26
Pacer
$140.36
Parking
$215.25
Postage
$167.74
Rental
$467.67
Sundries
$16.56
Transportation
$262.89
Travel - Airline
$6,196.46
Travel - Food
$835.14
Travel - Hotel
$1,546.58
Travel -Taxi
$263.25
TOTAL
$52,021.02
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2/27/2015

Joseph N. Kravec, Jr. (pro hac vice) FEINSTEIN DOYLE PAYNE

Transcription

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