Motion for Attorneys` Fees and Service Awards - Chimeno

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Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 1 of 21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
ANAMARIA CHIMENO-BUZZI, and
LAKEDRICK REED, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.
HOLLISTER CO., and ABERCROMBIE &
FITCH CO.,
Defendants.
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Case No. 14-cv-23120-MGC
Hon. Marcia G. Cooke, Presiding
Hon. Magistrate Edwin G. Torres
MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES
AND SERVICE AWARDS TO THE CLASS REPRESENTATIVES
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 2 of 21
Plaintiffs Anamaria Chimeno-Buzzi and Lakedrick Reed, by and through undersigned Class
Counsel and pursuant to Federal Rule of Civil Procedure 23(h), submit this motion for attorneys’
fees and service awards.1
I.
INTRODUCTION
On September 10, 2015, Plaintiffs entered into a Settlement Agreement with Defendants
Hollister Co. and Abercrombie & Fitch Co. to resolve the class action entitled Chimeno-Buzzi, et al. v.
Hollister Co., et al., Case 1:14-cv-23120-MGC (S.D. Fla.) (the Settlement Agreement was filed on
September 10, 2015 as ECF Docket No. (“Dkt.”) 126-1). Pursuant to the Settlement Agreement,
Defendants agreed to pay $10,000,000.00 to establish a Settlement Fund, which is to be used to
provide the exclusive recovery and relief for the Settlement Class, any reasonable attorneys’ fees and
costs awarded by the Court to Class Counsel, any service awards awarded by the Court to Plaintiffs
Chimeno-Buzzi and Reed, and the costs of notice and settlement administration. On December 18,
2015, the Court granted preliminary approval of the Settlement (Dkt. 129).
The Settlement was obtained after more than a year of high-risk litigation, during which time
Class Counsel expended more than 2,000 attorney hours despite the significant risk and uncertainty
of a litigation that was vigorously defended by Defendants and their counsel at every stage.
Class Counsel respectfully submit that the $10 million Settlement represents an excellent
result for the Settlement Class, and respectfully move the Court for an award of attorneys’ fees and
expenses in the total amount of one-third (⅓) of the Settlement Fund, well within presumptive
standards in the Eleventh Circuit; and service awards to each of the two representative Plaintiffs in
the amounts of $5,000.00.
As detailed below, Class Counsel’s requested fee is well within the reasonable market price
for contingent legal services in complex class action litigation, and is consistent with recent fee
awards to class counsel in similar TCPA cases in this District.
1
The reasonableness of Class
Unless otherwise defined herein, all capitalized terms shall have the same force, meaning and
effect as ascribed in the Settlement Agreement, filed on September 10, 2015 (Dkt. 126-1).
-1-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 3 of 21
Counsel’s request is further confirmed by various additional factors that district courts of the
Eleventh Circuit consider in awarding fees, such as the risks presented by the case, the quality and
amount of work performed by Class Counsel, and the results achieved on behalf of the Settlement
Class.
II.
BACKGROUND
A.
The Settlement
The terms and conditions of the Settlement are contained in the Settlement Agreement
signed by the Parties.
(Dkt. 126-1.)
The Settlement Agreement requires Defendants to pay
$10,000,000.00 into a common, non-reversionary Settlement Fund for the benefit of Class Members
(id. at § IV.A. to IV.B.), and further requires that Defendants provide training concerning TCPA
compliance to key managers responsible for text communications to customers, (id. at § IV. C.)2
On December 18, 2015, the Court entered an Order Granting Preliminary Approval, finding
that “the Settlement Agreement and the settlement it incorporates appears fair, reasonable, and
adequate.” (Dkt. 129 at 3.)
B.
The Quality and Amount of Work Performed By Class Counsel
1.
Pleadings and Motions
The record demonstrates that the Parties pursued their opposing positions comprehensively
and zealously. On August 25, 2014, Plaintiff Anamaria Chimeno-Buzzi filed her initial class action
complaint. (Dkt. 1.) Plaintiff Lakedrick Reed filed his initial complaint on April 27, 2015 (Case No.
15-cv-21580-JEM (S.D. Fla.) (the “Reed Action”)). On May 20, 2015, Plaintiff Reed filed a Notice of
Voluntary Dismissal without prejudice in the Reed Action, and on May 28, 2015, Plaintiff ChimenoBuzzi filed an unopposed Motion for Leave to File a First Amended Complaint (Dkt. 92), which
2
The Net Settlement Fund – i.e., the entire amount of the Settlement Fund, less costs
associated with notice, settlement administration, attorneys’ fees and expenses, and Plaintiff service
awards (as approved by the Court) – shall be paid in full, pro rata, to Settlement Class Members who
submit valid claims. (Settlement, Dkt. 126-1 at § IV.B.)
-2-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 4 of 21
was granted by the Court on May 29, 2015 (Dkt. 93). The First Amended Complaint, filed on May
29, 2015, included Plaintiff Reed as a proposed Class Representative. (Dkt. 95.)
A Motion for Certification of the Class, along with supporting declarations, was filed on
August 26, 2014. On October 6, 2014, Defendants filed a Motion to Defer Briefing and Ruling on
Plaintiff’s Motion for Class Certification (Dkt. 21), and then on October 20, 2014 filed their initial
Motion to Dismiss (Dkt. 22) and a Request for Judicial Notice in support (Dkt. 24). An Opposition
to the Motion to Dismiss was filed on November 7, 2014 (Dkt. 25), Defendants’ Reply on
November 17, 2014 (Dkt. 17), and a large number of pleadings and briefing relating to Notices of
Supplemental Authorities, Responses and motion practice related thereto (Dkts. 28, 37, 38, 42, 53,
58, 63, 66, 67, 69, 70, 71, 89, 91, 94, 96, and 100). Plaintiff also filed a Motion to Strike with respect
to evidence submitted by Defendants in support of the Motion to Dismiss, which was fully briefed
by the Parties (Dkts. 26, 30, and 31). On June 15, 2015, Defendants renewed their Motion to
Dismiss following the filing of the First Amended Complaint (Dkts. 108 and 109).
On October 27, 2014, following a Federal Rules of Civil Procedure, Rule (“Rule”) 16
conference, the Parties filed a Rule 16 Scheduling Report, with competing proposed schedules for
the litigation (Dkt. 24). Thereafter the Court set a trial date in this Action for May 16, 2016, as well
as various other deadlines and due dates (Dkt. 51).
On January 20, 2015, Defendants filed a Motion to Stay Discovery in the Action (Dkt. 34),
which was fully briefed by the Parties (Dkts. 40 and 44). Immediately following this Motion, on
January 23, 2015, two separate Motions to Compel Discovery were filed against each of the
Defendants (Dkts. 35 and 36), which were followed by a Motion to extend the briefing deadlines for
the Motions to Compel, Oppositions, Replies, and a request to file a Sur-Reply (Dkts. 41, 43, 46, 47,
52, and 60). On April 9, 2015, the Court denied Defendants’ Motion to Stay Discovery and granted
the Motions to Compel (Dkt. 64).
Plaintiff also filed a Motion to Compel Defendants to File an Answer (Dkt. 49). This
Motion was extensively litigated and briefed by the Parties in a number of pleadings filed with the
-3-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 5 of 21
Court relating to this and other discovery related motions (Dkts. 56, 61, 82, 83, 90, 97, 104, and
105).
Class Counsel also cooperated in organizing a leadership structure to effective and efficiently
prosecute the claims on behalf of Plaintiffs and the proposed Class. On June 4, 2015, Plaintiffs filed
an unopposed Motion to Appoint Interim Co-Lead Counsel (Dkt. 101). On June 29, 2015, the
Court issued an Order appointing the law firms of Carey Rodriguez Milian Gonya, LLP, Siprut PC,
and Ahdoot & Wolfson, PC as interim class counsel, and Scott Owens, PA as liaison counsel (Dkt.
114).
On August 3, 2015, following a contentious but successful mediation, the Parties filed a
Notice of Settlement (Dkt. 122).
2.
Discovery and Investigation
To support the Parties’ hard-fought motion practice outlined above, this case necessitated
extensive investigation and discovery. Prior to the filings of the Complaints in this matter, all
Plaintiffs’ firms conducted substantial pre-filing investigation into the alleged wrongful conduct of
Defendants, which included interviews with individuals subject to the robo-texts, the possibility of
consent, and factual on-line and technological investigation.
(Declaration of Robert Ahdoot,
attached hereto as Exhibit A (“Ahdoot Decl.”) at ¶ 4.)
Following the commencement of litigation, on October 30, 2014, the Parties served initial
disclosures pursuant to Rule 26(a)(1). (Id. at ¶ 5.) On November 26, 2014, the First Set of
Interrogatories and First Requests for Production of Documents were served on Defendants. (Id.)
Plaintiffs also served two separate subpoenas to testify at deposition on Neustar, Inc., subpoenas for
production of documents on HelloWorld and cellular telephone carriers, and noticed the
depositions of a number of individuals affiliated with Defendants. (Id.) As described above,
Plaintiffs also engaged in substantial discovery related motion practice motion practice, including
prevailing on a number of Motions to Compel and Defendants’ attempt to stay discovery. (See e.g.
Dkts. 35, 36 41, 43, 46, 47, 52, 60 and 64).
-4-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 6 of 21
Following the Court’s granting of the Motions to Compel discovery, Defendants provided
supplemental objections and responses to the Interrogatories and produced voluminous amounts of
documents, ultimately producing nearly 20,000 pages of documents, all of which were carefully
reviewed by Plaintiffs’ Counsel. (Ahdoot Decl. at ¶ 6.)
3.
Class Counsel Overcame Substantial Defenses and Hurdles to Achieve
This Settlement
Class Counsel expended substantial effort confronting serious litigation risks and achieving
this Settlement on behalf of Class Members, especially given Defendants’ wide range of potential
defenses.
Throughout this litigation, until just before the Settlement was reached, the questions of
whether a call or text sent to a reassigned (or “recycled”) number constitutes a violation of the
TCPA, and whether the Defendants’ texting technology constituted an automatic telephone dialing
system (“ATDS”) under the TCPA and applicable FCC regulations and orders, were pending before
the FCC. A negative decision on either issue would likely have eliminated Defendants’ liability to
the Class. It was only after nearly a year of litigation that the FCC decided these issues in its July 10,
2015 Order, interpreting the term ATDS broadly, and concluding that texts to reassigned numbers
violate the TCPA. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order (July 10,
2015).
Moreover, the Supreme Court granted certiorari in Robins v. Spokeo, Inc., 742 F.3d 409 (9th
Cir. 2014) cert. granted, 135 S. Ct. 1892 (2015), in April of 2015, after roughly eight months of this
litigation. The pendency of Spokeo – where the Supreme Court appears poised to decide whether a
plaintiff seeking recovery of statutory damages in the absence of demonstrable harm lacks standing
to sue in federal court— was of clear concern and posed substantial risks given the purely statutory
damages being sought in this case. A broad decision in favor of the petitioners in Spokeo could have
extinguished Plaintiffs’ and the Settlement Class Members’ Article III standing in federal court,
leaving them without any recovery in this case.
-5-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 7 of 21
Despite these significant hurdles and risks to recovery, Class Counsel proceeded to
vigorously prosecute this case on the Class’s behalf.
4.
Settlement Negotiations
On July 22, 2015, while Defendants’ Motion to Dismiss and Plaintiffs’ Motion to Compel
the Filing of an Answer were pending, the Parties participated in mediation before the Honorable
Wayne R. Anderson (Ret.). (Ahdoot Decl. at ¶ 7.) Negotiations were contentious and the Parties
were unable to reach the Settlement following a full day of mediation. (Id.) Thereafter, following a
number of settlement discussions over the course of the next ten days, the Parties were able to reach
a settlement in principal. (Id.) The Settlement is thus the product of lengthy and particularly
difficult negotiations that took place over many hours and days.
After the parties reached a settlement in principal, the parties then began memorializing the
full Settlement, which generated numerous additional rounds of comprehensive and often spirited
negotiations. The parties extensively negotiated each aspect of the Settlement, including the
Settlement Agreement (Dkt. 126-1) itself, the Supplement to the Settlement Agreement (Dkt. 127),
and each of the eight exhibits and attachments filed with the Supplement (Dkts. 127-1, 128-1 to 1287). For example, counsel negotiated and meticulously refined the notice program and each
document comprising the notice (the Long Form Notice, Summary Notice, and Banner Ads), with
the assistance of a class action notice expert, to ensure that the information disseminated to Class
Members is clear and concise. (Ahdoot Decl. at ¶ 8.)
After the filing of the Supplemental materials, on December 18, 2015, the Court issued an
Order (Dkt. 129) granting preliminary approval of the Settlement and conditionally certifying the
Settlement Class set forth in the Settlement Agreement.
5.
Class Counsel’s Fee And Cost Request And Service Award Request
By way of this Motion, Class Counsel now seek an award of attorneys’ fees and expenses of
one-third (⅓) of the Settlement Fund in the amount of $3,333,333.33 and service awards to the
named Plaintiffs of $5,000.00 each.
-6-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 8 of 21
III.
THE REQUESTED FEE AND COSTS AWARD IS REASONABLE
In the Eleventh Circuit, “it is well established that when a representative party has conferred
a substantial benefit upon a class, counsel is entitled to an allowance of attorneys’ fees based upon
the benefit obtained.” In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1358 (S.D. Fla.
2011) (citing Camden I Condo Ass’n v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991); Boeing Co. v. Van
Gemert, 444 U.S. 472 (1980). Accordingly, awarding attorneys’ fees to class counsel using the
“percentage of recovery” method “is consistent with the dictates of the Eleventh Circuit.” Reyes, et
al. v. AT&T Mobility Services, LLC, No. 10-20837-CIV-MGC (S.D. Fla. June 21, 2013) (Cooke, J.)
(Dkt. 196 at 6) (citing Camden I, 946 F.2d at 771; In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323, 1333
(S.D. Fla. 2001)). “The percentage applies to the total benefits provided, even where the actual
payments to the class following a claims process is lower.” Hall v. Bank of Am., N.A., No. 12-22700,
2014 WL 7184039, at *9 (S.D. Fla. Dec. 17, 2014).
In this case, one-third (⅓) of the Settlement Fund is an appropriate fee award, both as a
percentage of the common Settlement Fund, and pursuant to the various Johnson factors that district
courts of the Eleventh Circuit considering in confirming reasonableness. See Camden I, 946 F.2d at
774-775.
A.
The Requested Fee Amount Is Reasonable As a Percentage of the Total
Settlement
Although “[t]here is no hard and fast rule mandating a certain percentage of a common fund
which may be awarded as a fee,” In re Sunbeam: Securities Litigation, 176 F. Supp. 2d at 1333 (quoting
Camden I, 946 F.2d at 774), an award of one-third (⅓) of the common fund is “consistent with the
trend in this Circuit,” Reyes, No. 10-20837-CIV-MGC (Dkt. 196 at 6). Indeed, district courts of the
Eleventh Circuit frequently approve fee awards of one-third (⅓) the common settlement fund. See,
e.g., Wolff v. Cash 4 Titles, No. 03-cv-22778, 2012 WL 5290155, at *6 (S.D. Fla. Sept. 26, 2012)
(collecting cases and concluding that 33% is consistent with the market rate in class actions); Waters
v. Int’l Precious Metals Corp., 190 F.3d 1291, 1295–96 (11th Cir. 1999) (affirming attorneys’ fee award
of 33.3% to class counsel, using 30% as starting benchmark).
-7-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 9 of 21
Courts in this District regularly apply the market rate of one-third (⅓) of the common fund
to TCPA settlements. See, e.g., Soto v. The Gallup Organization, Inc., Case 0:13-cv-61747-MGC (S.D.
Fla.) (Cooke, J.) (awarding fees of one-third (⅓) of the settlement fund in TCPA action); Guarisma v.
ADCAHB Medical Coverages, Inc., et al., 1:13-cv-21016, Doc. 95 (S.D. Fla. June 24, 2015) (awarding
fees of one-third (⅓) of the settlement fund plus costs in TCPA action); Espinal v. Burger King Corp.,
No. 09-20982 (S.D. Fla.) (Cooke, J.) (Dkt. 65) (same). In Soto, for example, this Court recently
approved a $4 million attorneys’ fee award (one-third (⅓) of the $12 million common fund), Soto,
Case 0:13-cv-61747-MGC (Dkt. 95), based on the following findings:
(a) Class Counsel achieved a favorable result for the Class by obtaining
Gallup’s agreement to make significant funds available to Settlement Class
Members, subject to submission of valid claims by eligible Settlement Class
Members; (b) Class Counsel devoted substantial effort to pre- and post-filing
investigation, legal analysis, and litigation; (c) Class Counsel prosecuted the
Settlement Class’s claims on a contingent fee basis, investing significant time
and accumulating costs with no guarantee that they would receive
compensation for their services or recover their expenses; (d) Class Counsel
employed their knowledge of and experience with class action litigation in
achieving a valuable settlement for the Settlement Class, in spite of Gallup’s
possible legal defenses and its experienced and capable counsel; (e) Class
Counsel have standard contingent fee agreements with Plaintiffs, who have
reviewed the Settlement Agreement and been informed of Class Counsel’s
fee request and have approved; and (f) the Notice informed Settlement Class
Members of the amount and nature of Class Counsel’s fee and cost request
under the Settlement Agreement, Class Counsel filed and posted their
Petition in time for Settlement Class Members to make a meaningful decision
whether to object to the Class Counsel’s fee request, and one (1) Settlement
Class Member objected.
Id. at 8-9.
The same factors considered by this Court in Soto apply equally here and likewise weigh in
favor of awarding Class Counsel attorneys’ fees of one-third the Settlement Fund in this case.3 The
3
In fact, the Settlement benefits afforded to the approximately 3.7 million Class Members in
this case actually exceed the benefits to the 6.9 million members of the approved Soto settlement.
Indeed, although the $10 million Settlement Fund in this case is 20% smaller than the Soto
settlement fund, the number Soto class members was nearly double the number Class Members here.
The result is a larger pro rata share for Class Members in this case.
-8-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 10 of 21
Settlement negotiated by Class Counsel is significant, providing a $10 million Settlement Fund from
which compensation will be provided to the Settlement Class Members who are allegedly entitled to
redress under the TCPA. Class Counsel devoted substantial time investigating, analyzing and
litigating the class claims by preparing and filing voluminous pleadings, briefs, and motions.
Discovery was hard-fought, extensive, and involved several requests for information and
documents, overcoming Defendants’ numerous objections through successful motions to compel,
ultimately resulting in the production and thorough review of over 20,000 pages of documents and
additional voluminous electronic databases. Settlement negotiations, though ultimately successful,
were just as fractious.
The reasonableness of the requested fee award in this case is confirmed by the reasoning of
the district court in In re Capital One Tel. Consumer Prot. Act Litig., 80 F. Supp. 3d 781, 795 (N.D. Ill.
2015), a thorough opinion that analyzes dozens of TCPA class settlements throughout the country
and concludes that, based on a risk adjusted fee structure, a fee award of 36% for the first $10
million of the common fund is reasonable in a TCPA case. One-third (⅓) of the $10 million
Settlement Fund in this case is well within the structure of reasonableness articulated by In re Capital
One. Cf., e.g., Kolinek v. Walgreen Co., No. 13 C 4806, 2015 WL 7450759, at *17 (N.D. Ill. Nov. 23,
2015) (awarding 36% of the settlement as attorneys’ fees).
Further bolstering this conclusion are the non-monetary benefits to the Settlement Class
resulting from the Settlement’s requirement that Defendants institute TCPA compliance training to
their marketing employees, which will protect the Settlement Class from future unsolicited text
messages. See, e.g., Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1244-1245 (11th Cir. 2011) (cost
and fee award reasonable in part because “the $1.5 million payment is designed to compensate the
class counsel for the non-monetary benefits they achieved for the class.”). Class Counsel seek no
additional fees for obtaining this added benefit to the Class (which most TCPA settlements do not
include).
In light of the exceptional monetary and non-monetary benefits obtained for the Settlement
Class, Class Counsel respectfully request that the Court approve an attorneys’ fees award of
-9-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 11 of 21
$3,333,333.33, which would be consistent with the recent “trend in this Circuit” of awarding fees of
one-third (⅓) the common fund to class counsel. See Reyes, No. 10-20837-CIV (S.D. Fla.) (Dkt.
196).
B.
The Johnson Factors Confirm the Reasonableness of the Requested Fee
The reasonableness of Class Counsel’s requested fee award is also confirmed by the various
additional factors that district courts of the Eleventh Circuit may consider.
In cases where fees are sought in excess of 25%, the Eleventh Circuit instructs district courts
to consider the factors articulated in Johnson v. Georgia Highway Expr., Inc., 488 F.2d 714 (5th Cir.
1974), to confirm the reasonableness of the requested fees. See Camden I, 946 F.2d at 775. The
“Johnson factors” are: (1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment
by the attorney; (5) the customary fee; (6) whether the fee is contingent; (7) the time limitations
imposed; (8) the amount involved and results obtained; (9) the experience, reputation and ability of
the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. Id. at 772.
Each of these factors confirms the reasonableness of Class Counsel’s requested fee award.
1.
The Time and Labor Required, Preclusion from Other Employment
and the Time Limits Imposed Justify the Fee Amount
The first, fourth and seventh Johnson factors – the time and labor, preclusion of other
employment, and time limitations imposed – each heavily support the reasonableness of Class
Counsel’s fee request.
As described above, from initiating this action in August 2014 until reaching the proposed
Settlement in September 2015, Class Counsel was continuously engaged in vigorous litigation against
well-capitalized Defendants represented by sophisticated counsel. All told, Class Counsel expended
2,222.70 otherwise billable hours to this litigation and $23,319.135 in out-of-pocket expenses
5
See “Ahdoot Decl.” at ¶¶ 9-10 (stating that his firm expended a total of 438.8 attorney hours
and $4,378.63 in expenses and that Liaison Scott D. Owens expended 80 hours and $670 in
expenses); Declaration of David P. Milian (“Milian Decl.”), attached hereto as Exhibit “B”, at ¶¶ 5-6
-10-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 12 of 21
obtaining this Settlement6 – an investment that Class Counsel made despite the risk and uncertainty
presented by the litigation.
Specifically, Class Counsel performed the following tasks, without compensation, in order to
achieve the exceptional result that constitutes the Settlement:
•
Conducting extensive pre-filing and post-filing investigations, research, and
legal analysis regarding Plaintiffs’ claims and the claims of the Class;
•
Preparing, filing and serving the Class Action Complaint;
•
Moving for class certification and filing related briefing;
•
Conferring with opposing counsel to prepare and file a Joint Scheduling
Report;
•
Preparing and serving initial disclosures on Defendants;
•
Effectively opposing Defendant’s motion to dismiss or to stay the litigation
based on pending FCC petitions and the primary jurisdiction doctrine;
•
Moving to strike materials attached to Defendants’ motion to dismiss or to
stay, and filing related briefing;
•
Obtaining substantial class and merits focused discovery, including over
20,000 pages of documents and massive electronic databases, through the
effective use of numerous interrogatories and requests for production, and
thoroughly reviewing each page of these documents;
•
Serving subpoenas for the production of documents and to testify at
deposition on Neustar, Inc., HelloWorld and various cellular telephone
carriers;
(stating that his firm expended a total of 1,148.9 attorney hours and $13,398.84 in expenses);
Declaration of Joseph J. Siprut (“Siprut Decl.”), attached hereto as Exhibit “C”, at ¶¶ 9-14 (stating
that his firm expended a total of 555 attorney hours and $4,871.66 in expenses).
The out of pocket costs, which are separate and apart from the cost of notice and
administration, were expended for the benefit of the Settlement Class during the course of litigation
and should be reimbursed in full. See Fed. R. Civ. P. 23(h) (permitting counsel to petition for
nontaxable costs); see also Dowdell v. City of Apopka, 698 F.2d 1181, 1191-92 (11th Cir. 1983) (“[W]ith
the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable
expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of
the case may be taxed as costs under section 1988.”).
6
-11-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 13 of 21
•
Noticing the depositions of numerous individuals affiliated with Defendants,
and filing motions to compel these individuals to appear for their
depositions;
•
Numerous telephonic conferences and written correspondence with
Defendants’ counsel concerning the nature and scope of discovery and the
sufficiency of Defendants’ discovery responses;
•
Successfully moving to compel Defendants’ production of discovery;
•
Successfully opposing Defendants’ motion to stay discovery;
•
Moving to compel Defendants to answer the complaint, and filing related
briefing;
•
Filing numerous motions for leave to file sur-replies, accompanied by
proposed sur-replies;
•
Filing numerous notices of supplemental authority;
•
Effectively coordinating the consolidation of the Chimeno-Buzzi action with
the Reed action, and quickly reaching an agreement between Class Counsel’s
three law firms to jointly prosecute this action on behalf of the class;
•
Successfully moving for leave to file an amended, consolidated complaint on
behalf of Chimeno-Buzzi and Reed;
•
Preparing an opposition to Defendants’ renewed motion to dismiss or to stay
the first amended class action complaint;
•
Successfully moving for appointment of interim co-lead class counsel;
•
Attending an eight-hour in-person mediation with a retired federal district
judge; and
•
Conducting extensive arm’s length settlement negotiations that culminated in
a comprehensive settlement agreement.
Additional attorney time will be devoted to this case following the filing of this
Memorandum. Counsel will need to file an application for final approval of the Settlement and in
the event final approval is granted, additional service will be required including supervising aspects
of the administration of the Settlement, answering Settlement Class Member questions, and helping
resolve any issues that arise.
-12-
Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 14 of 21
In sum, Class Counsel and their support staff have diverted, and will continue to divert,
substantial time and resources to this matter that would otherwise have been spent on other cases.
Class Counsel collectively devoted more than 2,000 attorney hours to the prosecution of this case.
Accordingly, the amount of time and labor devoted to this case weighs in favor of finding Class
Counsel’s requested fee award reasonable. See Yates v. Mobile Cnty. Pers. Bd., 719 F.2d 1530, 1535
(11th Cir. 1983) (“The expenditure of 1,000 billable hours – and often in significant blocks of time –
necessarily had some adverse impact upon the ability of counsel for plaintiff to accept other work,
and this factor should raise the amount of the award.”); see also Stalcup v. Schlage Lock Co., 505 F.
Supp.2d 704, 708 (D. Colo. 2007) (noting that “the Johnson court concluded that priority work that
delays a lawyer’s other work is entitled to a premium.”)
2.
The Case Involved Difficult Issues; the Risk of Nonpayment and Not
Prevailing on the Claims Was High
The second, sixth, and tenth Johnson factors – the novelty and difficulty of the questions,
whether the fee is contingent, and the “undesirability” of the case – also support the requested fee
award.
This case involved difficult and novel issues that presented a significant risk of nonpayment.
For instance, the question of whether a call or text sent to a reassigned (or “recycled”) number
constitutes a violation of the TCPA – i.e., where the previous (but not the current) subscriber
consented to receive the call or text at issue – was still an undecided issue at the time Class Counsel
initiated this action. Also undecided at the outset of this action was whether the Defendants’ texting
technology constituted an automatic telephone dialing system (“ATDS”) under the TCPA and
applicable FCC regulations and orders. It was only after nearly a year of litigation that the FCC
decided these issues in its July 10, 2015 Order, interpreting the term ATDS broadly, and concluding
that texts to reassigned numbers violate the TCPA.
See In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, https://www.fcc.gov/document/tcpaomnibus-declaratory-ruling-and-order (July 10, 2015). Had the FCC ruled differently on either issue,
the substantial time and resources invested by Class Counsel on behalf of the Settlement Class could
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easily have been a total loss. Moreover, a broad decision in favor of the petitioners in Spokeo could
have extinguished Plaintiffs’ and the Settlement Class Members’ Article III standing in federal court,
leaving them without any recovery. Finally, because the TCPA does not provide for an award of
attorneys’ fees to a prevailing plaintiff, Class Counsel’s recovery of costs and fees in this case has
always been contingent on a successful outcome and substantial recovery, even with the favorable
FCC rulings.
Such a substantial risk of nonpayment in return for advancing all of the costs and fees
weighs heavily in favor of finding Class Counsel’s requested award reasonable. See Pinto v. Princess
Cruise Lines, Ltd., 513 F. Supp. 2d 1334, 1339 (S.D. Fla. 2007) (“A determination of a fair fee for
Class Counsel must include consideration of the contingent nature of the fee, the wholly contingent
outlay of out-of-pocket sums by Class Counsel, and the fact that the risks of failure and nonpayment
in a class action are extremely high.”); In re Checking Acc’t Overdraft Litig., 830 F. Supp. 2d at 1364 (“A
contingency fee arrangement often justifies an increase in the award of attorney’s fees.”); Francisco v.
Numismatic Guar. Corp., No. 06-61677, 2007 U.S. Dist. LEXIS 96618 at *35 (S.D. Fla. Jan. 30, 2007)
(“Attorneys’ risk is perhaps the foremost factor in determining an appropriate fee award.”)
The difficult and contingent nature of this case described above also demonstrates its
undesirability. There are few lawyers willing to invest significant time and resources prosecuting a
lawsuit that involves complicated and uncertain legal questions and a substantial risk of receiving no
compensation. Although Class Counsel managed to achieve an excellent result for the Settlement
Class, this outcome was anything but certain until shortly before the Settlement was reached. As
such, the “undesirability” of this case is a factor that weighs in favor of the reasonableness of the
requested fee award.
See In re Checking Account Overdraft Litig, 830 F. Supp. 2d at 1364
(“‘Undesirability’ and relevant risks must be evaluated from the standpoint of plaintiffs’ counsel as
of the time they commenced the suit, not retroactively, with the benefit of hindsight.”) (citing Lindy
Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp. 540 F.2d 102, 112 (3d Cir. 1976)).
3.
Class Counsel Achieved an Excellent Result for the Settlement Class
The eighth Johnson factor focuses on the “monetary results achieved” for the Class. See
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Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1202 (S.D. Fla. 2006).
The Settlement Agreement provides an all-cash Settlement Fund of $10,000,000.00. Each
Settlement Class Member who submits a valid claim form7 will receive a pro rata share of the Net
Settlement Fund, which Class Counsel expect will be well within the range of various other TCPA
settlements that have been granted final approval. See, e.g., In re Capital One, 2015 WL 605203, at *5
(granting final approval to TCPA class action settlement where anticipated claimant recovery was
$34.60); Wilkins v. HSBC Bank Nevada, N.A., No. 14-190, 2015 WL 890566, at *3 (N.D. Ill. Feb. 27,
2015) (granting final approval to TCPA class settlement where anticipated claimant recovery was
$93.22); Arthur v. Sallie Mae, Inc., No. 10-00198, 2012 WL 4075238, at *1 (W.D. Wash. Sept. 17,
2012) (granting final approval to TCPA class settlement where anticipated claimant recovery was
“over $100 each”); Bellows v. NCO Fin. Sys., Inc., No. 07-01413, 2008 WL 5458986, at *5 (S.D. Cal.
Dec. 10, 2008) (recommending granting final approval to TCPA class settlement providing for
claimant recovery of $70; approved at Dkt. 38).
Accordingly, this factor weighs heavily in favor of finding the requested fee award
reasonable.
4.
The Requested Fee is Consistent with Customary Fees Awarded in
Similar Cases
The fifth and twelfth Johnson factors – the customary fee, and awards in similar cases – also
support approval.
As previously discussed, an award of attorneys’ fees to class counsel of one-third (⅓) the
common Settlement Fund is “consistent with the trend in this Circuit.” Reyes, No. 10-20837-CIVMGC (docket entry 196); see, e.g., id. at 6 (citing Wolff, 2012 WL 5290155, at *4 (“One-third of the
recovery is considered standard in a contingency fee agreement.”); Morefield v. NoteWorld, LLC, Nos.
1:10– CV–00117, 1:11–CV–00029, 2012 WL 1355573 (S.D. Ga. April 18, 2012) (class settlement
7
The number of actual claiming Settlement Class Members will be significantly less than
100%. See Forcellati v. Hyland’s, Inc., No. 12-1983, 2014 WL 1410264, at *6 (C.D. Cal. Apr. 9, 2014)
(“‘[T]he prevailing rule of thumb with respect to consumer class actions is [a claims rate of] 3–5
percent.’”) (quoting Ferrington v. McAfee, Inc., 2012 WL 1156399, at *4 (N.D. Cal. Apr. 6, 2012)).
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approved with one-third of the common fund payable as attorneys’ fees); Atkinson v. Wal-Mart
Stores, Inc., No. 8:08–CV–691–T–30TBM, 2011 WL 6846747, at *6 (M.D. Fla. Dec. 29, 2011)
(approving class settlement with one-third of common fund as attorneys fees); Gutter v. E.I. DuPont
De Nemours & Co., No. 1:95–cv–02152–ASG (S.D. Fla. May 30, 2003) (docket entry 626) (awarding
class counsel one-third of the Settlement Fund as attorneys’ fees); In re Terazosin Hydrochloride
Antitrust Litig., No. 1:99–md–01317–PAS, ECF No. 1557 at 8–10 (S.D. Fla. Apr. 19, 2005)
(awarding class counsel one-third of settlement fund)); see also Waters, 190 F.3d 1291 (Eleventh
Circuit affirming fee award of 33 1/3% of common fund, using 30% as starting benchmark).
Moreover, courts in this District, including this very Court, have several times awarded
attorneys’ fees of one-third the settlement fund to class counsel in similar TCPA cases. See, e.g., Soto,
Case 0:13-cv-61747-MGC (docket entry 95) (this Court awarding one-third to class counsel who
obtained $12 million settlement to class of 6.9 million); Guarisma, 1:13-cv-21016 (docket entry 95)
(awarding one-third plus costs in TCPA action); Espinal, No. 09-20982 (docket entry 65) (same).
Class Counsel’s requested fee award of one-third (⅓) the Settlement Fund is thus entirely
consistent with the customary percentage of the common fund awarded to class counsel in the
Eleventh Circuit, and with fees awarded in similar TCPA settlements in this District. Accordingly,
the fifth and twelfth factors weigh in favor of finding Class Counsel’s requested award reasonable.
5.
This Case Required A High Level of Skill
The remaining Johnson factors – the skill required to perform the legal services properly and
the experience, reputation, and ability of the attorneys – confirm that the fees sought are reasonable.
As shown above, Class Counsel achieved a settlement that confers substantial monetary
benefits to the Settlement Class Members despite the hard fought litigation against sophisticated and
well-financed Defendants represented by top-tier counsel. See In re Sunbeam Sec. Litig., 176 F.
Supp.2d at 1334 (“In assessing the quality of representation, courts have also looked to the quality of
the opposition the plaintiffs’ attorneys faced.”).
This outstanding result was made possible by Class Counsel’s extensive experience litigating
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class actions of similar size, scope, and complexity to the instant action. For many years, Class
Counsel has litigated complex matters involving consumer issues, including TCPA actions, and all
have been class counsel in other consumer class action cases. See generally Exhibit A, Ahdoot Decl.;
Exhibit B, Milian Decl.; Exhibit C, Siprut Decl.
Each of the Johnson factors confirms the reasonableness of the requested fee award.
Accordingly, Class Counsel respectfully request that the Court approve an attorneys’ fees award of
$3,333,333.33, one-third of the Settlement Fund.
IV.
THE REQUESTED SERVICE AWARDS ARE REASONABLE.
Finally, Class Counsel respectfully request that the Court award modest service awards to
each of the two named Plaintiffs. Such awards are routinely approved by Courts in order to
compensate named plaintiffs for their work on behalf of the class; to account for financial, personal,
or reputational risks associated with litigation; and to encourage plaintiffs to step forward on behalf
of unnamed class members in the future. See Allapattah, 454 F. Supp. 2d at 1218-19; see also, e.g.,
Schulte, 805 F. Supp. 2d at 601-02 (“Class Representative’s willingness to publically place their names
on this suit and open themselves up to scrutiny and attention is certainly worth some
remuneration.”).
In this case, the requested service awards of $5,000.00 for each of the two named Plaintiffs,
neither of whom have ever before served as a plaintiff in a class action, are well justified and
reasonable. In addition to lending their names to this matter, and thus subjecting themselves to
significant public attention, Plaintiffs were actively engaged in this action. Among other things, they
(1) provided information, including cellular telephone records and screenshots of their cellular
telephones, to Class Counsel for preparing the complaints and other filings; (2) reviewed pleadings
and filings; (3) communicated on a regular basis with Class Counsel to stay apprised of the progress
of the litigation and settlement negotiations; and (4) reviewed and approved the Settlement
Agreement. (Exhibit A, Ahdoot Decl. at ¶ 19.) Their dedication to this case is notable, particularly
given the relatively small size of their personal financial stake.
The amount requested here, $5,000.00 for each named Plaintiff, is substantially less than
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amounts frequently approved by federal courts in TCPA actions and other class cases. See, e.g.,
Benzion v. Vivint, Inc., No. 12-61826 (S.D. Fla. Feb. 23, 2015) (Dkt. 201) (awarding $20,000 incentive
award in TCPA class settlement); Desai v. ADT Security Servs., Inc., No. 11-1925 (N.D. Ill. Feb. 27,
2013) (Dkt. 243) (awarding $30,000 incentive awards in TCPA class settlement); see also Allapattah
Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218-19 (S.D. Fla. 2006) (collecting cases); In re Dun
& Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 374 (S.D. Ohio 1990) (awarding two
incentive awards of $55,000 and three incentive awards of $35,000); Bogosian v. Gulf Oil Corp., 621 F.
Supp. 27, 32 (E.D. Pa. 1985) (awarding incentive awards of $20,000 to each of two plaintiffs).
Accordingly, Class Counsel respectfully request that the Court approve service awards of
$5,000.00 each to Plaintiffs Anamaria Chimeno-Buzzi and Lakedrick Reed.
V.
CONCLUSION
For the foregoing reasons, Class Counsel respectfully request that the Court: (1) award
attorneys’ fees and expenses to Class Counsel in the amount of $3,333,333.33 (i.e., one-third (⅓) of
the $10 million Settlement Fund); and (2) award service awards of $5,000.00 each to Plaintiffs
Anamaria Chimeno-Buzzi and Lakedrick Reed.
CERTIFICATE PURSUANT TO LOCAL RULE 7.1
Prior to filing the instant Motion, Plaintiffs’ undersigned counsel avers he conferred with
Defendant’s counsel pursuant to Local Rule 7.1 and undersigned counsel does not believe that
Defendants will oppose the relief sought in this motion.
Dated: February 15, 2016
Respectfully submitted,
By: /s/ David P. Milian
David P. Milian
[email protected]
Frank S. Hedin
[email protected]
CAREY RODRIGUEZ
MILIAN GONYA, LLP
1395 Brickell Avenue, Suite 700
Miami, Florida 33131
Telephone: (305) 372-7474
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Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 20 of 21
Facsimile: (305) 372-7475
Robert Ahdoot*
[email protected]
AHDOOT & WOLFSON, PC
1016 Palm Avenue
West Hollywood, California 90069
Tel: 310.474.9111
Fax: 310.474.8585
Joseph J. Siprut*
[email protected]
Ismael T. Salam
[email protected]
SIPRUT PC
17 North State Street
Suite 1600
Chicago, Illinois 60602
Phone: 312.236.0000
Fax: 312.241.1260
Counsel for Plaintiffs and the
Proposed Settlement Class
Scott D. Owens
[email protected]
Patrick C. Crotty
[email protected]
SCOTT D. OWENS, P.A.
3800 S. Ocean Drive, Ste. 235
Hollywood, FL 33019
Tel: 954.589.0588
Fax: 954.337.0666
Liaison Counsel
*Admitted Pro Hac Vice
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Case 1:14-cv-23120-MGC Document 130 Entered on FLSD Docket 02/15/2016 Page 21 of 21
CERTIFICATE OF SERVICE
I hereby certify that on February 15, 2016, I electronically filed the foregoing document with
the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this
day on all counsel of record identified on the Notice of Electronic Filing generated by CM/ECF.
/s/David P. Milian
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Case 1:14-cv-23120-MGC Document 130-1 Entered on FLSD Docket 02/15/2016 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
ANAMARIA CHIMENO-BUZZI, and
LAKEDRICK REED, on behalf of
themselves and all others similarly situated,
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
HOLLISTER CO., and ABERCROMBIE &
FITCH CO.,
Defendants.
Case No. 14-cv-23120-MGC
Hon. Marcia G. Cooke, Presiding
Hon. Magistrate Edwin G. Torres
DECLARATION OF ROBERT AHDOOT IN SUPPORT OF PLAINTIFFS’
APPLICATION TO AWARD FEES, COSTS AND SERVICE AWARDS
I, Robert Ahdoot, pursuant to 28 U.S.C. § 1746, declare as follows:
1.
I am an attorney duly admitted to practice law in the state of California and have
been admitted pro hac vice in the instant action. I am a founding member of Ahdoot & Wolfson, PC
(“AW”) and (one of the Co-Lead) Class Counsel appointed by the Court in the above-captioned
case (the “Action”). I submit this declaration in support of Plaintiffs’ Application to Award Fees,
Costs and Service Award (the “Fee Petition”), filed concurrently herewith. The facts herein stated
are true of my own personal knowledge, or I am informed and believe them to be true, and if called
to testify to such facts, I could and would do so competently.
2.
Our firm, Ahdoot & Wolfson, PC, has served as class counsel in class action cases
throughout the county, including multi district litigations, and has recovered ten of millions of
dollars on behalf of consumers and aggrieved parties. A true and correct copy of our firm’s
Curriculum Vitae is attached hereto as Exhibit A to this declaration.
3.
I, along with Co- Class Counsel, have been closely involved in prosecuting this
litigation.
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4.
To support the Parties’ hard-fought motion practice outlined above, this case
necessitated extensive investigation and discovery. Prior to the filings of the Complaints in this
matter, all Plaintiffs’ firms conducted substantial pre-filing investigation into the alleged wrongful
conduct of Defendants, which included interviews with individuals subject to the robo-texts, the
possibility of consent, and factual on-line and technological investigation.
5.
Following the commencement of litigation, on October 30, 2014, the Parties
participated in substantial amount of discovery as reflect by the Court’s docket on this case. Plaintiff
served initial disclosures pursuant to Rule 26(a)(1). On November 26, 2014, the First Set of
Interrogatories and First Requests for Production of Documents were served on Defendants.
Plaintiffs also served two separate subpoenas to testify at deposition on Neustar, Inc., subpoenas for
production of documents on HelloWorld and cellular telephone carriers, and noticed the
depositions of a number of individuals affiliated with Defendants.
6.
Following the Court’s granting of the Motions to Compel discovery, Defendants
provided supplemental objections and responses to the Interrogatories and produced voluminous
amounts of documents, ultimately producing nearly 20,000 pages of documents, all of which were
carefully reviewed by Plaintiffs’ Counsel.
7.
While Defendants’ Motion to Dismiss and Plaintiffs’ Motion to Compel the Filing
of an Answer were pending, the Parties participated in a mediation before Honorable Wayne R.
Anderson (Ret.) on July 22, 2015. Negotiations were contentious and the Parties were unable to
reach the Settlement following a full day of mediation. Thereafter, following a number of settlement
discussions over the course of the next ten days, the Parties were able to reach a settlement in
principal.
8.
After the parties reached a settlement in principal, the parties then began
memorializing the full Settlement, which generated numerous additional rounds of comprehensive
and often spirited negotiations. The parties extensively negotiated each aspect of the Settlement,
including the Settlement Agreement itself, the Supplement to the Settlement Agreement, and each of
the eight exhibits and attachments filed with the Supplement. For example, counsel negotiated and
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meticulously refined the notice program and each document comprising the notice (the Long Form
Notice, Summary Notice, and Banner Ads), with the assistance of a class action notice expert, to
ensure that the information disseminated to Class Members is clear and concise.
9.
In connection with the submission of our Fee Petition, I compiled and reviewed the
billing records for work performed by Ahdoot & Wolfson, PC and reviewed the accounting of work
performed as submitted by Liasion Counsel, Scott D. Owens. In total, and as set forth in more
detail in the table below, my firm expended 438.8 hours prosecuting this matter. In addition, my
firm expended $4,378.63 in costs associated with postage, mediation, travel, and filing fees. The
attorneys fees expended were performed by the following attorneys (the experience level of each
attorney is set forth in Exhibit A attached hereto):
Attorney
Hours
Tina Wolfson
173.4
Robert Ahdoot
202
Bradley King
36.6
Meredith Lierz
26.8
10.
I am informed and based on my review of the pleadings and documents relating to
this matter, believe that Liaison Counsel, Scott D. Owens, expended 80 hours and $670 in costs in
relation to this matter.
11.
Class Counsel have represented Plaintiffs and the Class on a purely contingent basis.
Class Counsel assumed the significant risk that they would not be compensated for time and out of
pocket expenses put into this litigation. This risk of nonpayment incentivized all Class Counsel to
work efficiently, to prevent duplication of effort, and to advance expenses responsibly.
12.
Class Counsel had to forgo the representation of other clients and other cases in
order to prosecute this litigation.
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13.
I believe that my firm and other Class Counsel assumed significant risk of
nonpayment in initiating and dedicating over 2000 attorney hours in this case given the legal issues
involved and Defendant’s vigorous defense of Plaintiffs’ liability theory.
14.
The tasks Class Counsel were required to perform in order to achieve the beneficial
results of the Settlement included:
•
Conducting extensive pre-filing and post-filing investigations, research, and legal
analysis regarding Plaintiffs’ claims and the claims of the Class;
•
Preparing, filing and serving the Class Action Complaint;
•
Moving for class certification and filing related briefing;
•
Conferring with opposing counsel to prepare and file a Joint Scheduling Report;
•
Preparing and serving initial disclosures on Defendants;
•
Effectively opposing Defendant’s motion to dismiss or to stay the litigation based on
pending FCC petitions and the primary jurisdiction doctrine;
•
Moving to strike materials attached to Defendants’ motion to dismiss or to stay, and
filing related briefing;
•
Obtaining substantial class and merits focused discovery, including over 20,000
pages of documents and massive electronic databases, through the effective use of
numerous interrogatories and requests for production, and thoroughly reviewing
each page of these documents;
•
Serving subpoenas for the production of documents and to testify at deposition on
Neustar, Inc., HelloWorld and various cellular telephone carriers;
•
Noticing the depositions of numerous individuals affiliated with Defendants, and
filing motions to compel these individuals to appear for their depositions;
•
Numerous telephonic conferences and written correspondence with Defendants’
counsel concerning the nature and scope of discovery and the sufficiency of
Defendants’ discovery responses;
•
Successfully moving to compel Defendants’ production of discovery;
•
Successfully opposing Defendants’ motion to stay discovery;
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•
Moving to compel Defendants to answer the complaint, and filing related briefing;
•
Filing numerous motions for leave to file sur-replies, accompanied by proposed surreplies;
•
Filing numerous notices of supplemental authority;
•
Effectively coordinating the consolidation of the Chimeno-Buzzi action with the Reed
action, and quickly reaching an agreement between Class Counsel’s three law firms to
jointly prosecute this action on behalf of the class;
•
Successfully moving for leave to file an amended, consolidated complaint on behalf
of Chimeno-Buzzi and Reed;
•
Preparing an opposition to Defendants’ renewed motion to dismiss or to stay the
first amended class action complaint;
•
Successfully moving for appointment of interim co-lead class counsel;
•
Attending an eight-hour in-person mediation with a retired federal district judge; and
•
Conducting extensive arm’s length settlement negotiations that culminated in a
comprehensive settlement agreement.
15.
Despite these risks, my firm, along with other Class Counsel, was able to
successfully resolve this case through a settlement that confers substantial monetary relief to
Settlement Class Members despite litigating against a well-financed Defendants employing top-tier
counsel from a national law firm.
16.
My firm, Ahdoot & Wolfson, PC, is maintains simultaneously kept time records that
reflect the time spent working on the instant action.
17.
13. As Co-Lead Class Counsel, I have made a conscious effort to minimize the
duplication of work, both by avoiding multiple attorneys working on the same assignment and by
adjusting time records that I deemed unnecessary or duplicative.
18.
Based on my experience, I anticipate that approximately fifty hours of additional
attorney time will be required through final approval and administration of the settlement, should it
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be approved by the Court. The attorneys handling this matter must prepare for and attend the final
fairness hearing, continue to communicate with Plaintiffs and Class Members, and otherwise
supervise the administration of the settlement.
19.
Representative Plaintiffs, Chimeno-Buzzi and Reed, demonstrated a willingness to
participate and undertake responsibilities and risks attendant with bringing a representative action.
Both Representative Plaintiffs aided in the investigation of the claims, consulted with counsel,
reviewed draft pleadings, participated in formal and informal discovery, and contributed to
settlement efforts. In addition to lending their names to this matter, and thus subjecting themselves
to significant public attention, Plaintiffs were actively engaged in this action. Among other things,
they (1) provided information, including cellular telephone records and screenshots of their cellular
telephones, to Class Counsel for preparing the complaints and other filings; (2) reviewed pleadings
and filings; (3) communicated on a regular basis with Class Counsel to stay apprised of the progress
of the litigation and settlement negotiations;
and (4) reviewed and approved the Settlement
Agreement.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 15th day of February 2016 at West Hollywood, California.
Robert Ahdoot
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EXHIBIT A
Case 1:14-cv-23120-MGC Document 130-1 Entered on FLSD Docket 02/15/2016 Page 8 of 13
Ahdoot & Wolfson (“AW”) is a top tier law firm specializing in complex and class
action litigations. The attorneys at AW vigorously litigate against large corporations to
vindicate the rights of millions of consumers in protracted, complex litigation, to successful
results.
AW has been appointed class counsel in numerous class actions, and, as a founding
members, Robert Ahdoot and Tina Wolfson have extensive experience in prosecuting
complex class action and representative lawsuits. They have served as plaintiffs’
counsel/co-counsel or class counsel and litigated numerous class actions or representative
actions.
Tina Wolfson attended and graduated Harvard Law School cum laude in 1994. Ms.
Wolfson began her civil litigation career at the Los Angeles office of Morrison & Foerster,
LLP, where she defended major corporations in complex actions and represented indigent
individuals in immigration and deportation trials as part of the firm’s pro bono practice.
She then gained further invaluable litigation and trial experience at a boutique firm,
focusing on representing plaintiffs on a contingency basis in civil rights and employee
rights cases.
Robert Ahdoot graduated from Pepperdine Law School cum laude in 1994, where he
served as Literary Editor of the Pepperdine Law Review. Mr. Ahdoot clerked for the
Honorable Paul Flynn at the California Court of Appeals, and then began his career as a
civil litigator at the Los Angeles office of Mendes & Mount, LLP, where he defended large
corporations and syndicates such as Lloyds of London in complex environmental and
construction-related litigation as well as a variety of other matters. In March 1998, Mr.
Ahdoot and Tina Wolfson founded AW.
AW is comprised of eight attorneys and their support staff. As required, partners
Theodore Maya and Bradley King, and associate Meredith Lierz will also participate in this
litigation.
Theodore Maya is a partner at AW working on this matter. He graduated from
UCLA Law School in 2002 after serving as Editor-in-Chief of the UCLA Law Review.
Case 1:14-cv-23120-MGC Document 130-1 Entered on FLSD Docket 02/15/2016 Page 9 of 13
From July 2003 to August 2004, Mr. Maya served as Law Clerk to the Honorable Gary
Allen Feess in the United States District Court for the Central District of California. Mr.
Maya was also a litigation associate in the Los Angeles offices of Kaye Scholer LLP for
approximately eight years where he worked on a large variety of complex commercial
litigation from inception through trial. Mr. Maya was named “Advocate of the Year” for
2007 by the Consumer Law Project of Public Counsel for successful pro bono
representation of a victim of a large-scale equity fraud ring.
Bradley King is another partner at AW working on this matter. Mr. King graduated
from Pepperdine University School of Law, where he served as Associate Editor of the
Pepperdine Law Review. He worked as a law clerk for the California Office of the
Attorney General, Correctional Law Section in Los Angeles and was a certified law clerk
for the Ventura County District Attorney’s Office. Mr. King began his legal career at a
boutique civil rights law firm, gaining litigation experience in a wide variety of practice
areas, including employment law, police misconduct, municipal contract, criminal defense,
and premises liability cases.
Meredith Lierz is an associate at AW working on this matter. Ms. Lierz graduated
from Southwestern Law School magna cum laude, where she served as Lead Articles Editor
of the Southwestern Law Review. She concurrently completed her M.B.A. from Claremont
Graduate University. Ms. Lierz assisted indigent individuals in immigration matters on a
pro bono basis at Public Counsel before joining AW.
AW has been appointed lead counsel in numerous complex consumer class actions,
sometimes in contested leadership applications. The following actions are some examples
of recently resolved or pending class actions which AW has litigated or is currently
litigating on behalf its clients:
• Philliben, et al. v. Uber Technologies, Inc., et al. ____ ($28.8 Million Settlement
(plus injunctive relief and other benefits to the proposed Settlement Class)
pending Court approval)
• In re Experian Data Breach Litigation, Case No. 8:15-cv-01592-AG-DFM (C.D.
Cal.) (appointed co-lead counsel after contested application and hearing in
consolidated litigation consisting of thirty-eight class actions).
• In re: Kind LLC “All Natural” Litig., No. 1:15-md-02645-WHP (S.D.N.Y.)
(appointed lead by MDL Court after contested hearing).
• In Re: U.S. Office of Personnel Management Data Security Breach Litigation, No. 1:15mc-01394-ABJ (D.D.C.) (currently serving, by court appointment, on MDL
Plaintiffs’ Steering Committee after contested Leadership Application and
2
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13
•
•
•
•
•
hearing).
In re: Premera Blue Cross Customer Data Sec. Breach Litig., Case No. 15-md-02633SI (D. Or.) (currently serving, by court appointment, on the Executive
Leadership Committee).
In re: The Home Depot, Inc., Customer Data Security Breach Litigation, Case No.
1:14-md-02583-TWT (N.D. Ga.) (currently serving, by court appointment, on
the Consumer Plaintiffs’ Steering Committee).
In re Uber FCRA Litig., Case No. 3:14-cv-05241-EMC (N.D. Cal.). (AW, as
interim co-lead counsel by appointment of Judge Edward Chen, defeated the
defendants’ motion to compel arbitration, and won a motion to compel the
defendant to disseminate clearer notices and easier opt-out procedures with
respect to its newly revised arbitration agreement; AW is defending both
decisions on appeal in the Ninth Circuit).
In re: Target Corporation Customer Data Security Breach Litigation, Case No. 14-md2522 (D. Minn.) (AW contributed considerable effort to vetting hundreds of
potential class representatives, legal research involving the different state laws in
play, the consolidated complaint, and significant discovery efforts).
Remijas, et al. v. Neiman Marcus Group, LLC, Case No. 14-cv-1735 (N.D. Ill.)
(AW, as co-lead counsel, was responsible for briefing and arguing the
groundbreaking appeal from the trial court’s order in, which granted the motion
to dismiss on the pleadings based on lack of Article III standing. The Seventh
Circuit’s landmark opinion was its first to address the Supreme Court’s decision
in Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138 (2013). The Neiman Marcus
opinion was the first appellate court to reject this view of Clapper and, adopting
the plaintiff’s reasoning, established, among other things, that data breach
victims have standing to pursue claims based on the increased risk of identity
theft and fraud, even before that theft or fraud materializes. Remijas v. Neiman
Marcus, Case No. 14-3122 (7th Cir. July 20, 2015) (reversed and remanded).
• In Re: Hain Celestial Seasonings Products Consumer Litigation, Case No. 13-cv-01757AG-AN (C.D. Cal.) (appointed co-lead counsel after contested application).
• In re: Whole Foods Market, Inc., Greek Yogurt Marketing and Sales Practices Litigation,
Case No. 1:14-MC-02588-SS (W.D. Tex.) (appointed co-lead counsel by the
MDL court).
• Lavinsky vs. City of Los Angeles, Case No. BC542245 (LASC) (challenging
allegedly illegal utilities taxation practices; appointed Class Counsel after
3
Case 1:14-cv-23120-MGC Document 130-1 Entered on FLSD Docket 02/15/2016 Page 11 of
13
•
•
•
•
•
•
•
•
•
•
•
•
•
certifying the Class).
Pappas v. Naked Juice Co. of Glendora, Inc., Case No. 2:11-cv-8276-JAK-PLA (C.D.
Cal.) (appointed co-lead counsel after contested application; resulted in the
second largest food false advertising case ever ($9 Million fund)).
Kirby v. McAfee, Inc., Case No. 14-cv-02475-EJD (N.D. Cal.) (challenging the
defendant’s auto renewal and false discount practices).
Trammell v. Barbara’s Bakery, Inc., Case No. 3:12-cv-02664-CRB (N.D. Cal.) ($4
Million nationwide settlement of food false advertising case).
Cassidy v. Reebok International Ltd., Case No. 2:10-cv-09966-AHM (C.D. Cal.)
($25 Million nationwide settlement of apparel false advertising case).
Carey v. New Balance Athletic Shoe, Inc., Case Nos. 1:11-cv-10632-LTS & 1:11-cv10001-LTS (D. Mass.) ($3.7 Million nationwide settlement of apparel false
advertising case).
West v. ExamSoft Worldwide Inc., Case No. 14-cv-22950-UU (S.D. Fla.) ($2
Million nationwide settlement preliminarily approved arising from software
error on bar exam).
Mirto v. AIG/Granite State Insurance Co. et al., Case No. HG 04180408 (Cal.
Super. Ct., Alameda Cty.) ($3 Million California settlement re insurance
discriminatory pricing).
Axen v. Ginco International, et al., Case No. 427033 (Cal. Super. Ct., San
Francisco Cty. (“SFSC”) (injunctive relief settlement re pesticides in Ginseng
products).
Citizens for Responsible Business v. Rite Aid Corporation, et al., Case No. 414831
(SFSC) (prosecuted claims of false and illegal labeling in the herbal supplement
industry against 107 retailers and manufacturers, who were gleaning millions of
dollars from this nationwide practice; AW was successful in completely
eradicating the alleged illegal practice in the United States).
Feliciano v. General Motors LLC, Case No. 14-cv-06374-AT (S.D.N.Y.) (product
defect regarding Chevy Cruze vehicles).
Brown v. BMW of North America, LLC, Case No. 3:14-cv-00950-JLS-BLM (S.D.
Cal.) (product defect regarding MINI Cooper vehicles; nationwide settlement for
all valid claims, uncapped).
Weiss v. Los Angeles, No. BC 141354 (LASC) (challenging the defendant’s review
of parking violations, won writ of mandate trial to stop the allegedly illegal
practice).
Whalen v. Educational Testing Service, No. 2:15-cv-04249-ADS-AYS (E.D.N.Y.).
4
Case 1:14-cv-23120-MGC Document 130-1 Entered on FLSD Docket 02/15/2016 Page 12 of
13
• A.Y. v. The Regents of the University of California, Case No. BC590344 (Cal. Super.
Ct., Los Angeles Cty. (“LASC”)).
• Bishop v. Shorter University, Inc., Case No. 4:15-cv-00033-HLM (N.D. Ga.).
• Antman v. Uber Technologies, Inc., Case No. 3:15-cv-01175-LB (N.D. Cal.).
• Abad v. Lumber Liquidators, Inc., Case No. 2:15-cv-03795-MMM-JPR (C.D. Cal.).
• Whalen v. Michael Stores Inc., No. 2:14-cv-07006-JS-ARL (E.D.N.Y.).
• Wood v. American Eagle Outfitters, Inc., Case No. 1:15-cv-02370-VEC (S.D.N.Y.).
• Zadeh v. Chase Manhattan Bank, et al., Case No. 323715 (SFSC).
• Steinhaus v. American Express Travel Related Services Co. et al., Case No. 416248
(SFSC).
• Bernard v. MBNA America Bank, et al., Case No. 408700 (SFSC).
• Shakib v. Discover Bank, et al., Case No. 416194 (SFSC).
• Baumsteiger v. FleetBoston, et al., Case No. 408698 (SFSC).
• Lanchester v. Washington Mutual Bank, et al., Case No. 429754 (SFSC).
• Whitaker v. Health Net, Case No. 2:11-cv-00910-KJM (E.D. Cal.) (appointed to
the Executive Committee in the consolidated action).
• Sutter Medical Information Cases, Case No. JCCP 4698 (Cal. Super. Ct.,
Sacramento Cty.) (appointed to the Executive Committee in the consolidated
action).
Additionally, Ms. Wolfson frequently lectures on numerous topics related to class
action litigation across the country. An incomplete list of her speaking engagements is as
follows:
• Federal Bar Association: The Future of Class Actions, featuring the Hon. Jon
Tigar and the Hon. Laurel Beeler, November 2015, San Francisco: “Cutting
Edge Topics in Class Action Litigation” (Co-Chair and Faculty, approximately
200 attorneys in attendance).
• American Association for Justice: AAJ 2015 Annual Convention, July 2015,
Montreal: “The Mechanics of Class Action Certification.”
• HarrisMartin: Data Breach Litigation Conference: The Coming of Age, March
2015, San Diego: “The First Hurdles: Standing and Other Motion to Dismiss
Arguments.”
• Bridgeport: 2015 Annual Consumer Class Action Conference, February 2015,
Miami: Co-Chair.
5
Case 1:14-cv-23120-MGC Document 130-1 Entered on FLSD Docket 02/15/2016 Page 13 of
13
• Venable, LLP: October 2014, San Francisco: invited by former opposing counsel
to present mock oral argument on a motion to certify the class in a food labeling
case, Hon. Marilyn Hall Patel (Ret.) presiding.
• Bridgeport: 15th Annual Class Action Litigation Conference, September 2014,
San Francisco: “Food Labeling and Nutritional Claim Specific Class Actions”
(Co-Chair and Panelist).
• Bridgeport: 2014 Consumer Class Action Conference, June 2014, Chicago:
“Hot Topics in Food Class Action Litigation.”
• Perrin Conferences: Challenges Facing the Food and Beverage Industries in
Complex Consumer Litigations, April 2014, Chicago, where I was invited to
discuss cutting edge developments in settlement negotiations, notice, and other
topics.
• Bridgeport: Class Action Litigation & Management Conference, April 2014, Los
Angeles: “Getting Your Settlement Approved.”
• HarrisMartin: Target Data Security Breach Litigation Conference, March 2014,
San Diego: “Neiman Marcus and Michael’s Data Breach Cases and the Future of
Data Breach Cases.”
• Bridgeport: Advertising, Marketing & Media Law: Litigation and Best
Management Practices, March 2014, Los Angeles: “Class Waivers and
Arbitration Provisions Post-Concepcion / Oxford Health Care.”
Moreover, Mr. Ahdoot also frequently lectures on numerous topics related to class
action litigation across the country. An incomplete list of his speaking engagements is as
follows:
• HarrisMartin: Lumber Liquidators Flooring Litigation Conference, May 2015,
Minneapolis: “Best Legal Claims and Defenses.”
• Bridgeport: 15th Annual Class Action Litigation Conference, September 2014,
San Francisco: “The Scourge of the System: Serial Objectors.”
• Strafford Webinars: Crafting Class Settlement Notice Programs: Due Process,
Reach, Claims Rates and More, February 2014: “Minimizing Court Scrutiny and
Overcoming Objector Challenges.”
• Pincus: Wage & Hour and Consumer Class Actions for Newer Attorneys: The
Do’s and Don’ts, January 2014, Los Angeles: “Current Uses for the 17200, the
CLRA an PAGA.”
• Bridgeport: 2013 Class Action Litigation & Management Conference, August
2013, San Francisco: “Settlement Mechanics and Strategy.”
6
Case 1:14-cv-23120-MGC Document 130-2 Entered on FLSD Docket 02/15/2016 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
ANAMARIA CHIMENO-BUZZI, and
LAKEDRICK REED, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.
HOLLISTER CO., and ABERCROMBIE &
FITCH CO.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-cv-23120-MGC
Hon. Marcia G. Cooke, Presiding
Hon. Magistrate Edwin G. Torres
DECLARATION OF DAVID P. MILIAN IN SUPPORT OF MOTION FOR
ATTORNEYS’ FEES AND SERVICE AWARDS TO THE CLASS REPRESENTATIVES
I, David P. Milian, pursuant to 28 U.S.C. § 1746, declare as follows:
1.
I am a member of the Florida Bar (admitted 1990), the Southern District of Florida
(1990), the Middle District of Florida (1991), and the Court of Appeals for the Eleventh Circuit
(1999).
2.
I am a partner of Carey Rodriguez Milian Gonya, LLP (“Carey Rodriguez”), and
make this declaration in support of Plaintiffs’ Motion for Attorneys’ Fees and Services Awards to
the Class Representatives in the above-styled class action lawsuit.
3.
My practice has included the representation of plaintiffs in class actions in state and
federal courts. Examples include Urbaneja et. al v Lehman Brothers, Inc., Merrill Lynch, Pierce Fenner &
Smith, Inc., HSBC Bank, USA et. al., Case No. 05-21169-CIV-Moore (S.D. Fla.) (representing a class
of approximately 4,000 Latin American investors who suffered losses of $130,000,000 in a
pension/annuity scheme); Bruhl et. al v. Bank of America, PriceWatherhouseCoopers, N.A., Case No. 0323044-CIV-Marra (S.D. Fla.) (representing a class of investors in a failed offshore and domestic
hedge fund who suffered losses of $600,000,000); Walco Investments, Inc., v. Premium Sales, Inc., et. al.
Case 1:14-cv-23120-MGC Document 130-2 Entered on FLSD Docket 02/15/2016 Page 2 of 5
Case No. 93-2534-CIV-Moreno (S.D. Fla.) (representing the receiver and ancillary class of
approximately 1,500 investors in a Ponzi scheme with losses in excess of $250,000,000); Scharlow
et.al. v. Pensco Pension Services, Inc., Case No. 0l-8364-Civ-Hurley, (S.D. Fla.) (representing the Trustee
in bankruptcy and a related class of over 1,000 consumers in a viatical life insurance Ponzi scheme);
Charles v. Janssen Pharmaceutical Products, Case No. 04-22287-Civ-Altonaga (S.D. Fla.) (representing
class of patients for medical monitoring who took the anti-depressant drug Risperdal and developed
diabetes); Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997)
(representing class of Florida consumers against Florida insurance companies for charging excessive
premiums).
4.
My co-counsel Frank S. Hedin and I also currently serve as court-appointed co-lead
interim class counsel in Norberg v. Shutterfly, Inc., et al., Case No. 15-cv-5351 (N.D. Ill.), a putative
class action alleging violation of the Illinois Biometric Information Privacy Act (“BIPA”), and
represent the plaintiff in two other putative class actions brought under BIPA against Take-Two
Interactive Software, Inc., Santana, et al. v. Take-Two Interactive Software, Inc., Case No. 15-cv-08211
(S.D.N.Y.), and Facebook, Inc. (currently pending in California state court). We also represent
plaintiffs in numerous other putative class actions alleging violation of the TCPA, the Fair and
Accurate Credit Transactions Act, and the Michigan Video Rental Privacy Act.
5. In connection with the submission of this Motion, I compiled and reviewed the time
and billing records for work performed by all attorneys at Carey Rodriguez on this matter. In total,
and as set forth in more detail in the table below, the attorneys and professionals of Carey Rodriguez
spent 1,389 hours prosecuting this matter. In addition, Carey Rodriguez incurred $13,398.84 in
expenses and risked receiving nothing in return.
6. The below table identifies the number of hours expended by each legal professional
in prosecuting this matter:
2
Case 1:14-cv-23120-MGC Document 130-2 Entered on FLSD Docket 02/15/2016 Page 3 of 5
Attorney
David P. Milian, Senior Partner
John C. Carey, Senior Partner
Frank S. Hedin, Associate
Ernesto M. Rubi, Associate
David M. Levine, Associate
Paralegal
TOTAL
Total Time Keeper Hours
264.6
5.2
754.8
94.5
29.8
240.2
1389.1
7. Class Counsel have represented Plaintiffs and the Class on a purely contingent basis.
Class Counsel assumed the significant risk that they would not be compensated for time and out of
pocket expenses put into this litigation. This risk of nonpayment incentivized all Class Counsel to
work efficiently, to prevent duplication of effort, and to advance expenses responsibly.
8. Class Counsel had to forgo the representation of other clients and other cases in
order to prosecute this litigation.
9. I believe that my firm and other Class Counsel assumed significant risk of
nonpayment in initiating and expending over 2,000 total attorney hours in this case given the
complex legal issues involved and Defendant’s vigorous defense of Plaintiffs’ liability theory.
10. The tasks Class Counsel were required to perform to achieve the beneficial results of
the Settlement, over which I had direct input and supervision, included:
•
Conducting extensive pre-filing and post-filing investigations, research, and legal
analysis regarding Plaintiffs’ claims and the claims of the Class;
•
Preparing, filing and serving the Class Action Complaint;
•
Moving for class certification and filing related briefing;
•
Conferring with opposing counsel to prepare and file a Joint Scheduling Report;
•
Preparing and serving initial disclosures on Defendants;
•
Effectively opposing Defendant’s motion to dismiss or to stay the litigation based on
pending FCC petitions and the primary jurisdiction doctrine;
•
Moving to strike materials attached to Defendants’ motion to dismiss or to stay, and
filing related briefing;
•
Obtaining substantial class and merits focused discovery, including over 20,000
pages of documents and massive electronic databases, through the effective use of
3
Case 1:14-cv-23120-MGC Document 130-2 Entered on FLSD Docket 02/15/2016 Page 4 of 5
interrogatories and requests for production, and thoroughly reviewing each page of
these documents;
•
Serving subpoenas for the production of documents and to testify at deposition on
third-parties Neustar, Inc., HelloWorld and various cellular telephone carriers;
•
Noticing the depositions of numerous individuals affiliated with Defendants, and
filing motions to compel these individuals to appear for their depositions;
•
Numerous telephonic conferences and written correspondence with Defendants’
counsel concerning the nature and scope of discovery and the sufficiency of
Defendants’ discovery responses;
•
Successfully moving to compel Defendants’ production of discovery and obtaining
an order overruling all of Defendants’ objections;
•
Successfully opposing Defendants’ motion to stay discovery;
•
Moving to compel Defendants to answer the complaint, and filing related briefing;
•
Filing numerous motions for leave to file sur-replies, accompanied by proposed surreplies;
•
Filing numerous notices of supplemental authority;
•
Effectively coordinating the consolidation of the Chimeno-Buzzi action with the Reed
action, and quickly reaching an agreement between Class Counsel’s three law firms to
jointly prosecute this action on behalf of the class;
•
Successfully moving for leave to file an amended, consolidated complaint on behalf
of Chimeno-Buzzi and Reed;
•
Preparing an opposition to Defendants’ renewed motion to dismiss or to stay the
first amended class action complaint;
•
Successfully moving for appointment of interim co-lead class counsel;
•
Attending an eight-hour in-person mediation with a retired federal district judge; and
•
Conducting extensive arm’s length settlement negotiations that culminated in a
comprehensive settlement agreement.
4
Case 1:14-cv-23120-MGC Document 130-2 Entered on FLSD Docket 02/15/2016 Page 5 of 5
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 1 of 22
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
ANAMARIA CHIMENO-BUZZI, and
LAKEDRICK REED, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.
HOLLISTER CO., and ABERCROMBIE &
FITCH CO.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-cv-23120-MGC
Hon. Marcia G. Cooke, Presiding
Hon. Magistrate Edwin G. Torres
AFFIDAVIT OF JOSEPH J. SIPRUT
I, Joseph J. Siprut, declare:
1.
I am an attorney admitted to practice before this Court, and am the managing
partner of the law firm of Siprut PC (herein “Siprut PC”). I am one of the attorneys for Plaintiffs
Anamaria Chimeno-Buzzi and Lakedrick Reed (“Plaintiffs”) and the Settlement Class, and I make
this declaration in support of Plaintiffs’ Memorandum In Support Of Motion For Attorneys’ Fees
And Service Awards To Class Representatives. If called as a witness, I would and could testify to
the following:
Background on the Litigation
2.
Siprut PC, along with the firms of Ahdoot & Wolfson, PC and Carey Rodriguez
Milian Gonya, LLP (collectively, “Class Counsel”) have personally participated in the prosecution
of this Class Action prior to filing the Complaint, through the present. At the inception of this case,
Plaintiffs signed a retention agreement, agreeing that Class Counsel’s rate was contingent in
nature.
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 2 of 22
3.
Plaintiffs have contributed substantially to this litigation and has invested
considerable time, at their own expense, to do so. Plaintiffs aided our initial investigation of the
claims, and worked to provide a variety of documentation to support the asserted claim for
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).
Plaintiffs also spent several hours with Class Counsel on the phone discussing the case, and the
scope of the settlement eventually achieved.
4.
The Settlement is designed to afford each Class Member the opportunity to receive
a pro rata share of the $10,000,000 Settlement Fund after the deduction of: (a) notice and
administration costs; (b) attorneys’ fees and costs; and (c) a service awards.
5.
Class Counsel should receive attorneys’ fees and expenses in an amount not to
exceed one-third of the Settlement Fund ($3,333,333.33).
Siprut PC Rates and Lodestar Time
6.
Class Counsel has expended a significant amount of time and effort in prosecuting
this action and achieving substantial benefits for the Class. Class Counsel’s task undertaken to
achieve the beneficial results of the Settlement included:

Conducting extensive pre-filing and post-filing investigations, research, and legal
analysis regarding Plaintiffs’ claims and the claims of the Class;

Preparing, filing and serving the Class Action Complaint;

Moving for class certification and filing related briefing;

Conferring with opposing counsel to prepare and file a Joint Scheduling Report;

Preparing and serving initial disclosures on Defendants;

Effectively opposing Defendant’s motion to dismiss or to stay the litigation based
on pending FCC petitions and the primary jurisdiction doctrine;

Moving to strike materials attached to Defendants’ motion to dismiss or to stay,
and filing related briefing;
-2-
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 3 of 22

Obtaining substantial class and merits focused discovery, including over 20,000
pages of documents and massive electronic databases, through the effective use of
numerous interrogatories and requests for production, and thoroughly reviewing
each page of these documents;

Serving subpoenas for the production of documents and to testify at deposition on
Neustar, Inc., HelloWorld and various cellular telephone carriers;

Noticing the depositions of numerous individuals affiliated with Defendants, and
filing motions to compel these individuals to appear for their depositions;

Numerous telephonic conferences and written correspondence with Defendants’
counsel concerning the nature and scope of discovery and the sufficiency of
Defendants’ discovery responses;

Successfully moving to compel Defendants’ production of discovery;

Successfully opposing Defendants’ motion to stay discovery;

Moving to compel Defendants to answer the complaint, and filing related briefing;

Moving for sanctions and for contempt against Defendants, and filing related
briefing;

Filing numerous motions for leave to file sur-replies, accompanied by proposed
sur-replies;

Filing numerous notices of supplemental authority;

Effectively coordinating the consolidation of the Chimeno-Buzzi action with the
Reed action, and quickly reaching an agreement between Class Counsel’s three law
firms to jointly prosecute this action on behalf of the class;

Successfully moving for leave to file an amended, consolidated complaint on behalf
of Chimeno-Buzzi and Reed;

Preparing an opposition to Defendants’ renewed motion to dismiss or to stay the
first amended class action complaint;

Successfully moving for appointment of interim co-lead class counsel;

Attending an eight-hour in-person mediation with a retired federal district judge;
and
-3-
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 4 of 22

Conducting extensive arm’s length settlement negotiations that culminated in a
comprehensive settlement agreement.
7.
This fee is reasonable and appropriate based on the risk of the litigation, its
complexity, Class Counsel’s refusal of alternative employment opportunities with guaranteed
payment, and the substantial benefit obtained for the Class. Specifically, my firm took on this
representation with no guarantee of success and with no guarantee that we would recover fees. We
invested substantial resources (both in terms of attorney time and costs) in the prosecution of this
case.
8.
Attorneys at my firm keep regular records of their time. In computing the total
compensable time, attorneys at my firm exercised their billing judgment by reducing or eliminating
time entries that we deemed redundant.
9.
I have spent 300 hours prosecuting this case to date.
10.
Ismael T. Salam, a third-year attorney with my firm, has spent 255 hours
prosecuting this case to date.
11.
Kristina Pearson, a sixth-year legal assistant at my firm, has spent 1.7 hours
assisting in the prosecution of this case to date.
12.
Collectively, my firm has spent 556.7 hours prosecuting this case to date.
13.
Additionally, my firm has spent $4,871.66 in un-reimbursed expenses incurred in
connection with this case to date. The costs and expenses were necessary for the prosecution of
this case and should be awarded. The costs are as follows:
14.
My firm, Siprut PC, substantially concentrates its practice in the prosecution of
class actions. Attorneys at my firm have been appointed as Lead Class Counsel in numerous class
actions, which are highlighted in the firm’s resume, attached hereto as Exhibit A.
-4-
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 5 of 22
I declare under penalty of perjury under the laws of the State of Illinois that the foregoing
is true and correct.
Executed on February 15, 2016 in Chicago, Illinois.
-5-
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 6 of 22
EXHIBIT A
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 7 of 22
SIPRUT PC FIRM RESUME
Siprut PC is a commercial litigation firm based in Chicago, with additional offices in San
Diego, Boston, and Colorado Springs. The firm focuses its practice exclusively on complex
litigation and pre-litigation counseling, encompassing a wide variety of areas and issues. The
firm’s primary litigation groups include plaintiffs’ class action litigation (with an emphasis on
consumer law issues); qui tam and whistleblower litigation; intellectual property and patent
litigation; and business litigation.
Siprut PC and its attorneys have repeatedly been appointed as lead counsel in federal and
state class action lawsuits across the country, and have recovered hundreds of millions of dollars
for its clients. The firm has been prominently featured in the mainstream media for its successes
and advocacy on behalf of consumers nationwide, and our attorneys are frequently invited to
speak at seminars on consumer protection and class action issues.
CLASS ACTION AND CONSUMER LITIGATION
Siprut PC is an established leader in the class action arena. The firm has been recognized
for its “high-stakes, high-profile cases against large defendants.” As federal courts have further
recognized in appointing the firm and its attorneys as lead counsel in some of the most prominent
class cases in the country, Siprut PC has “substantial class action experience [and has served] as
lead counsel” in myriad class litigation. In re National Collegiate Athletic Association StudentAthlete Concussion Injury Litigation, Case No. MDL 13-cv-9116 (N.D. Ill. July 29, 2014). The
firm’s recent settlements and leadership appointments include the following:

Douglas v. Western Union Company (Case No. 14-cv-01741, N.D. Ill.): Appointed
lead counsel in nationwide class action asserting claims under the Telephone
Consumer Protection Act. Motion for preliminary approval of $8.5 Million cash
settlement granted.

Chimeno-Buzzi v. Hollister Co. et al. (Case No. 14-cv-23120-MGC, S.D. Fl.):
Appointed co-lead counsel in nationwide class action asserting claims under the
Telephone Consumer Protection Act. Motion for preliminary approval of $10 Million
cash settlement pending.

In re Southwest Airlines Voucher Litigation (Case No. 11-cv-8176, N.D. Ill.):
Appointed lead counsel in nationwide class action relating to Southwest’s unilateral
cancellation of drink vouchers paid for by business select travelers. Settlement valued
at $29 Million granted final approval, and then affirmed by the Seventh Circuit on
appeal.

In re Energizer Sunscreen Litigation, (Case No. 13-cv-00131, N.D. Ill.): Appointed
lead counsel in nationwide class action relating to defective sunscreen nozzles
manufactured by Energizer. Settlement valued up to $200 Million granted final
approval.
-1-
Case 1:14-cv-23120-MGC Document 130-3 Entered on FLSD Docket 02/15/2016 Page 8 of 22

In re National Collegiate Athletic Association Student-Athlete Concussion Injury
Litigation (Case No. MDL 13-cv-9116, N.D. Ill.): Appointed co-lead counsel in
consolidated MDL litigation against the NCAA on behalf of current and former
collegiate athletes related to concussions and head injuries. Landmark settlement of
$75 million cash and injunctive relief submitted for preliminary approval.

Illinois Nut & Candy Home of Fantasia Confections, LLC v. Grubhub, Inc., et al.
(Case No. 14-cv-00949, N.D. Ill.): Appointed lead counsel in nationwide class action
relating to unsolicited facsimile transmissions by Grubhub, in violation of the
Telephone Consumer Protection Act. Settlement of $2 million granted final approval.

Padilla v. DISH Network LLC (Case No. 12-cv-07350, N.D. Ill.): Appointed lead
counsel in nationwide class action relating to statutory violations of the Satellite
Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”). Landmark
settlement providing class-wide injunctive relief – the first class settlement under
SHVERA ever – granted final approval.

Knoch v. Intuit., Inc. (Case No. 15-cv-03650, N.D. Cal.): Appointed to Executive
Committee of consolidated data breach class litigation against Intuit.

Whalen v. Michael Stores, Inc. (Case No. 14-cv-07006-JS-ARL, E.D.N.Y.): Lead
counsel in consolidated data breach class litigation against Michaels.

In Re Prescription Pads TCPA Litigation (Case No. 13-cv-06897, N.D. Ill):
Appointed lead counsel in nationwide class action relating to unsolicited facsimile
transmissions by Rx Security, in violation of the Telephone Consumer Protection Act.
Settlement of $1 million granted final approval.

Lim, et al. v. Vendini (Case No. 14-cv-561, Cal. Sup Ct.): Appointed co-lead counsel
in nationwide class action relating to a security breach exposing the personal
information of hundreds of thousands of consumers nationwide. Cash settlement of
$3 million granted final approval.

Muir v. W.S. Badger Co., (Case No. 14-CH-5935, Cir. Ct. Cook County, Illinois):
Appointed lead counsel in nationwide class action relating to recall of defective
sunscreen products. Settlement providing class-wide injunctive relief granted final
approval.

Windows Plus, Incorporated v. Door Control Services, Inc. (Case No. 13-cv-07072,
N.D. Ill): Appointed lead counsel in nationwide class action relating to unsolicited
facsimile transmissions by Door Control, in violation of the Telephone Consumer
Protection Act. Settlement valued at $1 million granted final approval.

Townsend v. Sterling (Case No. 13-cv-3903, N.D. Ill): Appointed lead counsel in
nationwide class action relating to violations of the Fair Credit Reporting Act in the
employment context. Settlement granted final approval.
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Dr. William P. Gress et al. v. Premier Healthcare Exchange West, Inc. (Case No. 14cv-501, N.D. Ill.): Appointed co-lead counsel in nationwide class action relating to
unsolicited facsimile transmissions by Premier, in violation of the Telephone
Consumer Protection Act. Settlement of $756,000 granted preliminary approval.

AL and PO Corporation v. Quality Medical Products (Case No. 14-cv-01243, N.D.
Ill.): Appointed lead counsel in nationwide class action relating to unsolicited
facsimile transmissions, in violation of the Telephone Consumer Protection Act.
Settlement of $600,000 granted final approval.

Foos v. Ann, Inc. (Case No. 11-cv-02794-L-MDD, S.D. Cal.): Appointed lead
counsel in class action on behalf of California consumers for violations of the SongBeverly Act. Settlement valued at $2,323,500 granted final approval.

Lamb v. Bitech, Inc. (Case No. 3:11-cv-05583-EDL, N.D. CA): Appointed lead
counsel in class action on behalf of California consumers for violations of the SongBeverly Act. Class-wide settlement on behalf of 30,000 California residents granted
final approval.

Golba v. Dick’s Sporting Goods, Inc. (Case No. 30-2011-00472227, CA Superior
Ct.): Appointed lead counsel in class action on behalf of California consumers for
violations of the Song-Beverly Act. Settlement valued at $1,150,000 granted final
approval.

Pietrantonio v. Ann Inc. d/b/a Ann Taylor, Inc. (Case No. 13-cv-12721-RGS, D.
Mass.): Appointed lead counsel in class action on behalf of Massachusetts consumers
for violations of Massachusetts law prohibiting the collection of personal information.
Settlement valued in excess of $2 million received final approval.

Christensen v. Sur La Table, Inc. (Case No. 13-cv-11357-GAO, D. Mass.): Appointed
lead counsel in class action on behalf of Massachusetts consumers for violations of
Massachusetts law prohibiting the collection of personal information. Settlement
received final approval.

Monteferrante v. The Container Store, Inc. (Case No. 13-cv-11362-RGS, D. Mass.):
Appointed co-lead counsel in class action on behalf of Massachusetts consumers for
violations of Massachusetts law prohibiting the collection of personal information.
Settlement received final approval.

Alberts v. TSA Stores, Inc. (Case No. MICV2014-01491, Mass. Sup. Ct.): Appointed
lead counsel in class action on behalf of Massachusetts consumers for violations of
Massachusetts law prohibiting the collection of personal information. Settlement
valued at $2 million received final approval.

Miller v. J. Crew Group, Inc., (Case No. 13-cv-11487, D. Mass.): Appointed co-lead
counsel in class action on behalf of Massachusetts consumers for violations of
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Massachusetts law prohibiting the collection of personal information. Settlement
valued at $2 million received final approval.

Rich, et al. v Lowe’s Home Centers Inc. (Case No. 13-cv-30144-MGM, D. Mass.):
Appointed co-lead counsel in class action on behalf of Massachusetts consumers for
violations of Massachusetts law prohibiting the collection of personal information.
Settlement received final approval.

Moyer v. Michaels (Case No. 14-cv-561, N.D. Ill.): Appointed co-lead counsel in
nationwide class action relating to a security breach exposing the personal
information of hundreds of thousands of consumers nationwide.

Lewert v. P.F. Chang’s China Bistro (Case No. 14-cv-04787, N.D. Ill.): Appointed
co-lead counsel in nationwide class action relating to a security breach exposing the
personal information of hundreds of thousands of consumers nationwide.

Mednick v. Precor Inc. (Case No. 14-cv-03624, N.D. Ill.): Appointed co-lead counsel
in nationwide class action relating to false representations in the sale and marketing
of Precor treadmills.

John McNamara, et al. v. Samsung Telecommunications America, LLC, et al. (Case
No. 14-cv-1676, N.D. Ill.): Appointed co-lead counsel in nationwide class action
alleging false representations in connection with the performance of the Samsung 4G
phone.

Belville et al v. Ford Motor Company (Case No. 13-cv-06529, W.D. Va.): Appointed
to Plaintiffs’ Steering Committee in consolidated class litigation against Ford related
to sudden acceleration in Ford model vehicles.

In re Ventra Card Litigation (Case No. 13-cv-07294, N.D. Ill.): Appointed co-lead
counsel in class litigation related to the Chicago Transit Authority Ventra payment
card system.

In re Barnes & Noble Pin Pad Litigation (Case No. 12-cv-8617, N.D. Ill.): Appointed
co-lead counsel in nationwide class action relating to a security breach exposing the
personal information of hundreds of thousands of consumers nationwide.

Goodman v. Casting360, LLC (Case No. 12-cv-09851, N.D. Ill.): Appointed lead
counsel in nationwide class action for violations of the federal Telephone Consumer
Protection Act.

Kruse, et al. v. Citigroup, Inc. (Case No. 11-cv-01003-AG-AN, C.D. CA):
Appointed lead counsel in a nationwide class action against Citigroup for a massive
data breach exposing the personal information of hundreds of thousands of consumers
nationwide.
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BUSINESS LITIGATION
Siprut PC attorneys have substantial experience with emergency injunctive relief
proceedings (representing both plaintiffs and defendants), restrictive covenant litigation, and
large commercial contract disputes. Firm partners have contributed to the following matters:

NewSub Magazine Servs. LLC v Heartland Direct, Inc. (Case No. 02-C-4949, N.D.
Ill.): Pierced an entity's corporate veil to obtain a seven figure judgment against
related corporations and individuals.

In re Estate of Edith-Marie Appleton (Case No. 00-P-103, Cook County, IL):
Successfully defended an estate, throughout a three-week jury trial, from a claim
brought by Florida State University involving a $2,000,001 alleged charitable
pledge.

Edison Mission Energy v Mirant Corp (Case No. 02-CC-0059, Orange County,
CA.): Defended and settled $750 million breach of contract case involving the
purchase of a foreign power facility.

Johnson v. Sample & Cross Capital Mgmt. (Case No. 07-L-929, Lake County, Ill):
Secured dismissal with prejudice of counts brought against a hedge fund by eleven
investors in three separate actions, including claims for violation of the Illinois
Securities Law Act, violation of the Illinois Consumer Fraud Act, breach of fiduciary
duty , and negligence.

American Insurance v. Ingram (Cook Co., Ill.): Obtained preliminary and permanent
injunctions against former employee who opened competing business and used
previous employer’s confidential information.

Veal v. James and 7-Eleven (Cook Co., Ill.): Obtained judgment following bench
trial in favor of employee accused of wrongful conduct.

Des Plaines Office Equipment Co. v. Nicolin et al. (Cook Co. Ill.): Represented
hiring company and former employee in lawsuit brought by prior employer to enjoin
employee from working. Successfully opposed motions for TRO, preliminary and
permanent injunctions.

In re Confidential Arbitration (JAMS Chicago, IL): Following week-long trial
before retired federal judge, successfully defended breach of fiduciary duty and
shareholder dilution claims in excess of $7 million. Claims arose from issuance of
capital call and allocation of distributions and management fees.

In re Confidential Arbitration (AAA St. Louis, MO): Following trial before a threemember arbitration panel, recently obtained a $1.7 million award, including recovery
of all attorneys' fees and costs. Claims arose from purchase of multiple nursing home
facilities.
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
Delaware Superior Court and Illinois Chancery Court Litigation. Defended
industrial equipment company in case brought by hedge fund investor
concerning hedge fund's investment in $75 million secured lending loan facility.
Claims involved financing and dissolution of business issues.

Real estate arbitration (AAA Minneapolis, MN). Obtained $100,000 award,
including all attorneys' fees and costs, on behalf of commercial real estate buyer in
breach of contract action with seller.

Trilegiant v. Sitel Corporation (S.D.N.Y.). Represented Trilegiant in breach of
contract action seeking $34 million in liquidated damages from vendor.

Confidential purchase price adjustment arbitration (AAA Chicago). Represented
plastics manufacturer in arbitration. The Panel found in Client’s favor on claims for
breach of asset purchase agreement entered into as part of reverse spin-off
transaction and public offering. In addition, the Panel denied the Opposing Party’s
counterclaim for breach of a related real estate sublease and awarded judgment to
Client on its counterclaim concerning the same sublease.

Advertising Arbitration (AAA Chicago). Arbitrated dispute on behalf of
professional sports team relating to advertising sales and contracts; obtained
favorable result.

Confidential arbitration for aviation company (ICC Chicago). Represented aviation
manufacturer in contract dispute arising from purchase of company. Following
evidentiary hearings, obtained arbitration award in favor of client.

Lakeshore Drive Entertainment v. Prestige Films et al. (Cook Co. Ill): Obtained
dismissal of claims brought by movie production company over distribution rights.
ANTITRUST, UNFAIR COMPETITION, AND RICO LITIGATION
Siprut PC attorneys have substantial experience handling antitrust and unfair competition
litigation, including RICO claims, against some of the largest corporations in the world.
Representative litigation includes:

Woolsey v. JP Morgan Chase & Co. (S.D. Cal.). Representing putative class
alleging JP Morgan Chase manipulated the price for electricity within the California
electricity market through a series of deceptive bidding strategies, resulting in higher
prices to consumers.

In re Sulfuric Acid (N.D. Ill.) Represented sulfuric acid manufacturer in putative
nationwide class action pending in federal court in Chicago and indirect purchaser
class action pending in California state court. Plaintiff alleged industry-wide scheme
to constrain the supply and inflate the price of sulfuric acid. After eight years of
litigation, obtained summary judgment on all direct purchaser claims, which was
subsequently affirmed by the Seventh Circuit.
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In re Credit Swaps Default Litigation (N.D. Ill.). Represented financial services
company in putative class action alleging defendants conspired to restrict
competition in the market for credit default swaps by monopolizing the sell-side of
the CDS market and thereby maintaining anti-competitively wide bid-ask spreads.

Rasterex Holdings v Research in Motion, et al (Fulton Co., Georgia). Represented
RIM and co-defendants in trade secret dispute. Plaintiff alleged RIM
misappropriated trade secrets and incorporated them into RIM’s Blackberry
handheld device. Following summary judgment motions, obtained settlement on eve
of trial.

Safelite Glass Corp. (E.D. Tex.). Obtained summary judgment on behalf of all
defendants, and then won affirmance by U.S. Court of Appeals for the Fifth Circuit,
defeating all claims in Stewart Glass & Mirror, Inc. v. USA GLAS Corp., a suit by
Texas plaintiffs against national corporate competitors asserting conspiracy and
monopolization in violation of federal antitrust laws.
CIVIL RIGHTS AND CONSTITUTIONAL CLAIMS
Siprut PC attorneys have handled landmark, high-impact civil rights and constitutional
claims against municipalities, state and government entities, and corporate employers.
Representative litigation includes:

Doe II and Doe III , Does IV-VIII (N.D. Ill.): Representing female victims of sexual
assault for claims of civil rights and equal protection violations against The City of
Harvey. We allege that Harvey has a custom, policy and practice of failing to
adequately investigate claims by female rape victims, including in some instances
failing to submit or process sexual assault evidence or rape kits.

Green v. Village of Winnetka (Cook Co. Ill.): Representing putative class of
Winnetka property owners who allege Village is violating the Illinois constitution by
charging utility fees to fund a $42 million stormwater project that includes an eight
mile tunnel to Lake Michigan.

People Who Care v. Rockford Board of Education (Case No. 89-cv-20168, N.D. Ill.)
Represented African American and Hispanic students in desegregation and
educational equity class action lawsuit against one of the largest school districts in
Illinois. Proved liability across most areas of school operations, including special
education, school building conditions, transportation, and student assignment.
Secured multi-year, comprehensive court-ordered remedies. Represented plaintiffs
throughout 10 years of remedies implementation.

Johnson v. Board of Education of Champaign Unit School District (Case No. 00-cv1349, C.D. Ill.) Represented African American and Hispanic students in race
discrimination and desegregation class action lawsuit. Secured comprehensive
settlement affecting many areas of school district operations, including climate and
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discipline, upper level courses, student assignment, special education, and gifted
programs. Represented plaintiff class throughout seven years of settlement
monitoring.

McFadden v. Board. of Education School District U-46 (Case No. 05-cv-0760, N.D.
Ill.) Represented minority students in educational equity suit against second largest
school district in Illinois. Defendant found liable for intentionally segregating
Hispanic students into separate gifted program.

Ramirez v. Ceisel Masonry (N.D. Ill.): Represented Hispanic laborers who alleged
they were being discriminated against on the job because of their race. Obtained
favorable settlement on behalf of all plaintiffs.
WHISTLEBLOWER AND FALSE CLAIMS ACT LITIGATION
Siprut PC attorneys have led litigation resulting in settlements in excess of $100 million,
and we are actively prosecuting numerous False Claims Act lawsuits:

U.S. ex rel. Robinson v. Northrop-Grumman Corp. (Case No. 89-cv-6111, N.D. Ill.)
Qui tam action brought against Northrop-Grumman for fraud in connection with the
B-1 bomber, the B-2 “Stealth” bomber, and the F-15 fighter. Sixteen years after the
case was filed, it was settled prior to trial for a total recovery of $135 million.

U.S. ex rel. McGee v. IBM, Corp., et al. (Case No. 11-cv-3482, N.D. Ill.) Currently
pending, the case concerns a bid-rigging conspiracy in connection with a $50 million
Homeland Security Project in Cook County. Successfully defeated IBM’s motion to
dismiss in its entirety.

U.S. ex rel. Solomon v. Lockheed Martin Corp. (Case No. 3:12-DV-4495-D, N.D.
Tx.) Currently pending, the case seeks more than $100 million in damages for fraud
in connection with the F-35 Joint Strike Fighter, the most expensive weapons
program ever.

Currently under seal is a qui tam action for the submission of false claims by a
facility performing Magnetic Resonance Imaging in violation of Medicare’s Multiple
Procedures Payment Reduction Policy.

Currently under investigation is a potential Medicare qui tam action against a
pharmaceutical manufacturer and its distributors for overcharging the government
hundreds-of-millions of dollars through falsely reporting the Average Wholesale
Price of its drugs.

Currently under investigation is a potential Medicare/Medicaid qui tam action
concerning fraud in connection with the efforts of a manufacturer of a defective
medical implant device to obtain FDA approval of a the implant. Potential damages
valued in excess of $100 million.
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Currently under investigation is a potential qui tam action in connection with
hundreds-of-millions of dollars in false claims relating to mortgage foreclosures.
PATENT LITIGATION
Siprut PC and its attorneys have successfully represented public companies, mid-size
businesses, small companies, and individuals in their patent disputes all over the United States
and the world – from Chicago to San Francisco, from Russia to Cyprus. We have litigated cases
in a variety of technological fields, including the life sciences (DNA amplification, screening,
and sequencing), computer science (cloud computing, optical character recognition, and genome
sequencing), and orthopedic fields (dental and hip implants). Siprut PC has recovered millions of
dollars for our clients against some of the largest and most aggressive companies in the country.
ATTORNEYS
JOSEPH SIPRUT is the founder and managing partner of Siprut PC. He was named a
“Super Lawyer” in Illinois for Class Action Litigation, and holds an AV Preeminent rating by
Martindale Hubble, the highest possible peer review rating. He has been called a “fearless gamechanger in class actions” by the Chicago Daily Law Bulletin, and was named one of the “Top
100” in the country by the National Trial Lawyers Association. Mr. Siprut was previously named
one of the Top 40 attorneys in Illinois under the age of 40, and was also named one of the “Top
40 Under 40” in the country by the National Trial Lawyers Association. ALM Legal Leaders
named Mr. Siprut one of “Chicago’s Top Rated Lawyers of 2014.” Mr. Siprut was also selected
for membership in the Multi-Million Dollar Advocates forum, one of the most prestigious groups
of trial lawyers in the United States. Membership is limited to attorneys who have won million
and multi-million dollar verdicts and settlements, and fewer than 1% of U.S. lawyers are
members.
Mr. Siprut has appeared in dozens of publications and television and radio broadcasts
worldwide, including CBS Radio, NPR, ESPN, Bloomberg Law, Law360, the Chicago Tribune,
and more. He has been deemed by the media as the “Friend of the Frequent Fliers” for his
successful litigation crusades against the airline industry on behalf of airline customers, as well
as a “Leading Sports Reformer” for his advocacy to combat the problem of concussions and head
injuries in college sports.
Mr. Siprut frequently speaks at national class action and consumer litigation seminars. He
has substantial first-chair trial experience, and previously served as an Adjunct Professor at
Northwestern University School of Law in the Trial Advocacy program. He is also a frequent
author and speaker, having published over 25 articles in the nation's leading law reviews and
legal journals on topics including the right of privacy, copyright litigation, and contract doctrine,
as well as litigation strategy and tactics. He was appointed as a member of the Illinois ARDC
Hearing Board, and is also a member of the Advisory Board for the Fair Contracts Project, an
initiative focused on counteracting the implications of fine print in standard form consumer
contracts.
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Mr. Siprut is a graduate of Northwestern University School of Law, where he served as
the Managing Editor of the Northwestern Law Review and was selected to represent
Northwestern in national competition as a member of its National Moot Court team. He was also
awarded the Institute for Humane Studies Fellowship, a national fellowship competition for law
and graduate study.
Prior to founding Siprut PC, Mr. Siprut spent his career practicing at some of the top
corporate litigation firms in the country. Mr. Siprut has been recognized by the Law in Public
Service Committee of the ABA for his dedication to pro bono work. He is admitted to practice in
Illinois, the United States District Court for the Northern District of Illinois (including its Trial
Bar), the Seventh Circuit Court of Appeals, the Eleventh Circuit Court of Appeals, and the
United States Supreme Court. For over five years, Mr. Siprut served as an arbitrator in the Cook
County Arbitration Program.
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TODD MCLAWHORN is a partner at Siprut PC. He has over twenty years of commercial
litigation trial experience, most of that with three of the country's largest law firms. He has tried
cases and appeared before courts in a variety of jurisdictions, literally spanning the country from
coast to coast. Mr. McLawhorn has significant experience with complex business litigation,
including matters involving contracts, consumer fraud allegations, shareholder disputes and
valuations, commercial real estate, trade secret issues, deceptive trade practices claims, antitrust
issues, and merger and acquisition issues. He has represented assorted clients in a wide array
of industries, including those in the financial services, banking, health care, computer hardware
and software, membership services, manufacturing and professional sports fields. In addition,
Mr. McLawhorn has devoted a substantial portion of his practice to class action litigation,
particularly with respect to antitrust and consumer fraud claims.
Mr. McLawhorn recently received an AV Preeminent Rating, the highest possible rating,
in the Martindale-Hubbell Peer Review Ratings Program. Mr. McLawhorn was previously
recognized by The Chicago Law Bulletin and The Chicago Lawyer as one of the Top 40 lawyers
under 40 in Illinois. He has contributed to several publications, most recently as a Contributor to
the World Banks Group Doing Business 2015, and to various bar association publications. He
has also provided significant pro bono representation, including assisting individuals who flee
their home countries and seek political asylum in the United States, and helping individuals
involved in the Illinois Chancery Court's Foreclosure Mediation Program, in an effort to help
homeowners who are in foreclosure retain their homes.
In addition to being admitted to practice in New York and Illinois, Mr. McLawhorn is
also admitted to practice before the United States Courts of Appeals for the Seventh Circuit,
Federal Circuit, Fifth Circuit, and Eleventh Circuit, as well as the United States District Courts
for the Northern District of Illinois (Trial Bar), Southern District of Illinois, Central District of
Illinois, Southern District of New York, Eastern District of Michigan, Eastern District of
Wisconsin, and Western District of Wisconsin. He is also a member of the American Bar
Association, and is part of the Antitrust, Business Law, and Litigation Sections. As part of the
Litigation Section, he is also a member of the Class Action and Derivatives Suit Committee, the
Commercial and Business Litigation Committee, and the Intellectual Property Committee. Closer
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to home, Mr. McLawhorn is a longtime member of the Chicago Bar Association and the Illinois
State Bar Association. In connection with the Chicago Bar Association, he is a member of the
Antitrust, Class Action, and Consumer Law Committees.
Mr. McLawhorn received his law degree, with honors, from the University of North
Carolina at Chapel Hill. At the University of North Carolina, he was on both Law Review and
the Holderness Moot Court Bench. Prior to attending law school, Mr. McLawhorn graduated
from East Carolina University, magna cum laude, in three years with a Bachelor of Arts in
Psychology. In 2011 Mr. McLawhorn was elected to the District 101 Board of Education, and
serves on the Building, Finance, and Legislative Committees. He is a former President and
Board Member of the Village Club of Western Springs, a social and service organization. He is
also actively involved in coaching and supporting his children's sports teams, and has served on
various boards in connection with those activities.
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RICHARD L. MILLER II is a partner at Siprut PC. Richard was previously in-house
counsel at a private equity firm, and before that, a partner at Novack and Macey LLP, where he
specialized in commercial litigation. While there, Richard advised clients and litigated disputes
involving real estate, insurance coverage, creditors’ rights, products liability, licenses, trademark,
employment contract and corporate veil piercing claims, among others.
Richard is an Adjunct Professor at Northwestern University School of Law where he has
served as a Trial Advocacy instructor since 2005 and Advanced Trial Advocacy instructor since
2013. He has been an American Arbitration Association arbitrator since 2010 and, prior to that,
was an arbitrator for the Cook County Mandatory Arbitration Program for two years.
Richard served as a prosecutor for Champaign County, Illinois for two years. He litigated
approximately 50 jury trials, as well as innumerable bench trials. He prosecuted four murder
cases, two of which went to trial, resulting in sentences of 45 and 55 years.
Richard was named one of the “40 Illinois Attorneys Under 40 To Watch” by the Law
Bulletin Publishing Company, publishers of the Chicago Lawyer and Chicago Daily Law
Bulletin. Chicago Magazine has repeatedly recognized Richard as a "Super Lawyer," “Rising
Star” and one of the Top Young Commercial Litigation Attorneys in Illinois.
Richard has published articles appearing in the Illinois Bar Journal on Expert Testimony,
Emergency Temporary Restraining Orders, The Wage Payment Act, and Spoliation Claims. He
has also served as an author for the Illinois Institute of Continuing Legal Education (IICLE) for
many years, authoring guides for practitioners on: Pleading Under the Federal Rules, Federal
Motion Practice, Preparing for Trial, and Preserving the Record During Trial. Richard has
lectured at webinars for ICLE on Motion Practice, Negotiating Settlements and Cross
Examinations.
Richard is a member of the Illinois State Bar Association, the American Bar Association,
the Chicago Bar Association and the University Club of Chicago. He currently serves as the
President of the University of Illinois Law Alumni Board.
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BRUCE HOWARD is a partner at Siprut PC. He was named National Trial Lawyer of the
Year Finalist by the Trial Lawyers for Public Justice, and was named a “Super Lawyer” in
Illinois for Class Action Litigation, Securities Litigation, and ERISA Class Action Litigation. He
was also named as a one of the Top Attorneys in Illinois by Chicago Magazine.
Mr. Howard has over thirty years of commercial litigation trial experience. Mr. Howard
has significant experience with complex business litigation, including matters involving antitrust
issues, shareholder fraud and corporate derivative class action claims, ERISA class actions
claims, mass tort issues, trademark matters, deceptive trade practices issues, insurance defense
matters, actions under the Racketeer Influenced and Corrupt Organizations Act, issues arising
under the Anticybersquatting Consumer Protection Act, and whistle blower actions under the
False Claims Act. He was also appointed as a Special Assistant Attorney General for the State of
Illinois for purposes of prosecuting eminent domain matters. In addition to having devoted a
substantial portion of his career to antitrust and securities fraud matters, for the last twenty years,
Mr. Howard has devoted a substantial portion of his practice to whistle blower actions for
Medicare, Medicaid, Homeland Security, and defense contractor fraud.
Mr. Howard’s notable cases include: Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., an
antitrust action in which he was involved in several Seventh Circuit appeals and litigation workup, resulting in a $77 million jury verdict; Morse v. Abbott Laboratories, Inc., a securities fraud
class action which resulted in a $15.3 million jury verdict; In re Chicago Flood Litigation, in
which he had a prominent role in the work-up of the case, which settled for more than $25
million; Tyco International, Inc., a consolidated securities fraud class action that was jointly
settled as part of a $3.2 billion global settlement – the third largest class action recovery ever;
Robinson v. Northrop Corporation, a whistle blower action which, after 16 years of litigation,
settled prior to trial for $134 million – the largest recovery in a False Claims Act case in this
region at the time.
Mr. Howard received his law degree from Washington & Lee University School of Law.
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MATTHEW WAWRZYN is a partner at Siprut PC. He is a trial attorney with experience in
many areas of law over 15 years. He has been lead counsel in various patent-infringement
matters, both defending public companies and representing plaintiff companies of all sizes. Mr.
Wawrzyn has also successfully defended businesses against allegations of fraud, breach of
contract, white-collar crime, and has represented companies in accounting and insolvency cases
in federal court and as part of federal regulatory proceedings.
In the last two years, Mr. Wawrzyn has acted as lead counsel on behalf of various
inventors who seek to protect their patent portfolios from infringement by some of the largest
companies in the world. Many of these cases were asserted against Fortune 100 companies and
have since concluded favorably out of court.
Mr. Wawrzyn has argued before the Federal Circuit and five times before the Seventh
Circuit Court of Appeals, and has drafted a petition for writ of certiorari on which the Supreme
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Court of the United States ordered a response. Mr. Wawrzyn began his career at Winston &
Strawn in Chicago. His practice was largely devoted to representing major creditors in various
large bankruptcy cases, including United Air Lines and Kmart. Mr. Wawrzyn also focused on
white-collar crime and securities enforcement, including internal investigations and the defense
of a large corporation in an investigation by the Securities Exchange Commission.
Mr. Wawrzyn subsequently joined Kirkland & Ellis in Chicago, where he continued to
represent debtors in possession in large Chapter 11 cases at contested confirmation and Rule
9019 hearings. He also managed bankruptcy litigation on behalf of a private equity firm. In
addition, Mr. Wawrzyn continued to devote his time to white-collar crime, securities
enforcement, and general commercial litigation. Notably, Mr. Wawrzyn defended a “Big Four”
accounting firm in one of the first investigations conducted by the Public Company Accounting
Oversight Board, or PCAOB.
In early 2010, Mr. Wawrzyn founded a Chicago-based litigation boutique. Some of that
firm's notable representations included the defense of the Russian software developer ABBYY
against patent-infringement allegations of its chief competitor and the defense of the life sciences
firm Illumina, again, against patent-infringement allegations of a chief competitor. The ABBYY
case involved "optical character recognition" methods, and the Illumina case involved DNA
amplification and sequencing techniques. Mr. Wawrzyn’s litigation boutique merged with Siprut
PC in 2015.
Mr. Wawrzyn graduated summa cum laude from DePaul University College of Law,
where he was elected Order of the Coif and was a member of the DePaul Law Review. While at
DePaul, Mr. Wawrzyn won 7 "CALI" awards for achieving the top grade in his class. He also
published the following: Note, Constitutional Principles at Loggerheads with Community
Action, 50 DePaul L. Rev. 371 (Fall 2000). Mr. Wawrzyn was named an Illinois "Super Lawyer
-- Rising Star" in 2013 and again in 2014.
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MICHAEL L. SILVERMAN is an attorney at Siprut PC. His practice is focused on complex
and commercial litigation, with an emphasis on class action litigation involving antitrust,
consumer protection, and contract law. Mr. Silverman has extensive experience in electronic
discovery matters including electronic document preservation, spoliation, production, and
computer forensics. His efforts have assisted in the recovery of hundreds of millions of dollars
for the class members he has represented.
Mr. Silverman received his Bachelors of Business Administration from the University of
Wisconsin-Madison School of Business, where he concentrated his studies in Finance,
Investments, and Banking. Mr. Silverman graduated Cum Laude from DePaul University
College of Law, receiving his Juris Doctor degree in 2008. While in law school, Mr. Silverman
served as an Editor for the Journal of Contemporary Moral Issues as well as a Legal Writing
Teaching Assistant for first-year law students. He is admitted to the Illinois State Bar and United
States District Court, Northern District of Illinois.
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JOHN MARRESE is an attorney at Siprut PC. His practice focuses on complex commercial
and class action litigation. Mr. Marrese has handled all phases of pre-trial litigation, including
drafting and arguing dispositive and evidentiary motions, taking and defending depositions,
developing and executing written discovery, and preparing fact and expert witnesses for
deposition and trial. He has also assisted in several trials resulting in favorable verdicts and
settlements for his clients.
Mr. Marrese graduated cum laude from The Ohio State University College of Law, where
he was elected Chief Managing Editor of the Ohio State Journal of Criminal Law and as a
member of the International Law Moot Court Team. Mr. Marrese achieved the top grade in his
class in both Trial Practice and Appellate Advocacy, and clerked for the United States Attorney’s
Office for the Southern District of Ohio. He received his B.A. from Emory University in
Atlanta.
Mr. Marrese is admitted to practice in Illinois, the United States District Court for the
Northern District of Illinois, and the United States District Court for the Eastern District of
Wisconsin.
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STEPHEN JARVIS is an attorney at Siprut PC. Mr. Jarvis has actively participated in over
20 patent litigations pending around the United States, including arguing and drafting an array of
substantive motions and briefs in federal court. Mr. Jarvis has taken and defended depositions,
including particularly expert witnesses.
Mr. Jarvis graduated summa cum laude from DePaul University College of Law, where
he was elected Order of the Coif and was a member of the DePaul Law Review. While at
DePaul, Mr. Jarvis won 4 "CALI" awards for achieving the top grade in his class. Mr. Jarvis also
won the Scandaglia & Ryan Excellence in IP Legal Writing Award, and he published a
Comment in the DePaul Law Review.
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ISMAEL SALAM is an attorney at Siprut PC. His practice is focused principally on class
action litigation, with an emphasis on consumer protection, data privacy and technology issues,
and litigation under the Telephone Consumer Protection Act. Ismael is a graduate of Loyola
University Chicago School of Law, where he served as Managing Editor of the Public Interest
Law Reporter, in which he is also published. He also served as a junior member of the Loyola
Law Journal, the law school’s main publication. During law school, he was selected as a Student
Fellow for Loyola’s Institute for Consumer Antitrust Studies, where he drafted papers on pricefixing. He was also awarded the CALI for the highest grade in his Law and Economics course.
Prior to Siprut PC, Ismael interned with the U.S. Army Judicial Advocate General’s
Corps at Fort Carson, Colorado, U.S. Attorney’s Office for the Northern District of Illinois, U.S.
Court of Appeals for the Seventh Circuit, and U.S. District Court for the Northern District of
Illinois.
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RICHARD WILSON is an attorney at Siprut PC. His practice is focused on complex
commercial and class action litigation, with an emphasis on consumer protection. Mr. Wilson’s
practice also encompasses whistleblower actions for Medicare and Medicaid under the False
Claims Act. Mr. Wilson graduated magna cum laude from Chicago-Kent College of Law, where
he served as Executive Articles Editor of the Chicago-Kent Law Review and was elected to the
Order of the Coif. While at Chicago-Kent, Mr. Wilson earned three CALI Awards for achieving
the highest grade in his class, and was named a Kent Legal Scholar. Prior to joining Siprut PC,
Mr. Wilson externed with the United States Court of Appeals for the Seventh Circuit and with
the Circuit Court of Cook County, Chancery Division.
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MITCHEL OLSON is Of Counsel at Siprut PC. He has a law degree from Stanford Law
School and a medical degree from the University of California, and is licensed to practice both
law and medicine.
Dr. Olson has successfully litigated hundreds of cases involving defective medical
devices, faulty drugs, and negligent medical practice. He has obtained millions of dollars in
recoveries for clients who had “metal on metal” hip implants that caused metal poisoning and
joint breakdown, anesthetic pumps that destroyed shoulder joints in young athletes, breast
implants that leaked silicon and caused scar tissue and systemic immune reactions, and surgical
stapling devices that misfired, resulting in catastrophic complications. He has represented other
clients who took gastric reflux drugs that caused heart arrhythmias and sudden death, a pain
medication that resulted in an epidemic of prescription drug addicts, and recalled diet drugs that
caused heart attacks.
Dr. Olson has recovered millions of dollars on behalf of clients catastrophically injured
by medical negligence, including a six year old girl who lost her legs and arms after an
emergency room physician told the child’s mother that she was “overly concerned” and sent the
child home without treatment, and a man who became a paraplegic after a resident
anesthesiologist at a university hospital failed to monitor fluids being administered, resulting in a
50 lb. weight gain during surgery and heart failure. He obtained a 31 million dollar verdict for a
baby badly brain damaged as a result of an obstetrician’s unwillingness to see the bleeding
mother when called during the night, even though California limits pain and suffering damages
in medical malpractice cases to $250,000. Dr. Olson has also successfully prosecuted claims
against insurance companies for their bad faith refusal to pay for medical services and attorneys
who committed legal malpractice.
While the majority of Dr. Olson’s practice has been devoted to representing people
injured in the health care system, he has also handled class action lawsuits on behalf of victims
of predatory mortgage lending, California retail electrical consumers who overpaid for electricity
because of market manipulation, gender discrimination by a national brokerage firm, and
purchasers of cell phones overcharged for sales taxes. Dr. Olson has consulted in litigation
involving the oil industry’s use of “fracking,” which can contaminate ground water with
radioactive isotopes and other chemicals.
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Dr. Olson holds a AV Preeminent Rating, the highest possible rating, in the MartindaleHubbell Peer Review Ratings Program, and has been recognized as a Top Lawyer in San Diego,
California, where his office is located.
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MICHAEL OBERNESSER is Of Counsel at Siprut PC. Michael graduated magna cum laude
from Xavier University in Cincinnati, Ohio with a Bachelor's Degree in Philosophy in 1998.
After graduation, Michael went on to receive his Juris Doctor at the Northwestern University
School of Law in Chicago, Illinois in 2001. While attending Northwestern, Michael was a
member of the Bluhm Legal Clinic, where he represented clients accused of a wide variety of
criminal offenses, including drug and gun possession, assault and battery, and murder. After
graduation, Michael went to work for some of the largest law firms in the nation, including
Morgan, Lewis & Bockius LLP, and Howrey LLC, where he litigated complex matters on behalf
of his clients.
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TODD C. ATKINS is Of Counsel at Siprut PC, and heads the Firm’s California office. His
litigation practice encompasses class actions, real estate and securities matters – representing
both brokers and plaintiffs. Todd is also a trained and experienced mediator, and received his
certification from the National Conflict Resolution Center. Todd is a graduate of the University
of San Diego, School of Law. He is admitted to practice in California, the District of Columbia,
and the United States District Court for the Southern District of California, and is also a licensed
real estate broker.
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ALEXANDER SHAPOVAL is Of Counsel at Siprut PC, and heads the Firm's Boston office.
His practice encompasses all manner of civil litigation, including class actions and personal
injury litigation. Alexander is an experienced trial lawyer, with substantial first-chair jury trial
experience. Alexander is a graduate of the Massachusetts School of Law. He is admitted to
practice in Massachusetts and the United States District Court for the District of Massachusetts.
4821-5129-8057, v. 1
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